text:
    Julie Ehrler v. Bartholomaeus Braun.

      Bill to Hove Notes and Trust Deed Canceled as Forgeries — Decree Affirmed — Estoppel.
    1. This court, upon a review of the evidence, which was conflicting, affirms a decree of the court below ordering certain promissory notes and a certain deed of trust to be brought into court and canceled as forgeries.
    2. Even if the complainant recognized or admitted the genuineness of the notes in question, such admission can not be given the force of an estoppel in the absence of evidence that the defendant was injured thereby.
    [Opinion filed February 2, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Hr. Arnold Tripp, for appellant.
    Hr. Simeon Straus, for appellee.
   Bailey, J.

In this case, Braun, the appellee, filed his bill in chancery against Julie Ehrler, the appellant, and others, for the surrender and cancellation of two promissory notes held by the appellant, purporting to have been executed by the appellee, on the ground that said notes were forgeries. The bill alleges that on the 16th day of June, 1885, the appellee purchased certain real estate of one Rudolph Becker, and to secure $2,000 of the purchase money, executed his two promissory notes of that date for $1,000 each, payable in one and two years after date, to the order of said Becker, with semiannual interest, at the office of one Frederick Freudenberg,. and also a deed of trust on said real estate running to said Freudenberg, as trustee; that on or about December 4, 1883, said notes were sold by Becker to Freudenberg, Becker indorsing them in blank; that the first installment of interest was paid when due by the appellee to Freudenberg, and that at the maturity of the second installment, the appellee again paid to Freudenberg the interest and also the entire principal of the-first note, and received from him a surrender of that note; that on December 16, 1884, the appellee paid to Freudenberg the interest and $500 of the principal of the remaining note, which payment was then and there duly indorsed by Freudenberg on said note; that on June 17, 1885, the date of filing the bill, said note with said indorsement thereon, was held and owned by one Frederick Lipp, said Lipp also having-in his hands a forged duplicate of said deed of trust; that the appellant at the same time had in her hands the genuine deed of trust, and forged duplicates of both the notes; that said forgeries had been perpetrated by Freudenberg or some person unknown, and that appellee was wholly innocent thereof; that he was ready and willing to pay said Lipp or whoever should be found entitled thereto, the balance remaining unpaid on the second note. The bill makes the appellant Lipp and Freudenberg parties defendant, and prays that the forged deed of trust and the forged notes be brought into court and ordered canceled, and that upon payment to the party entitled thereto of the balance remaining due on the genuine note, that note also be canceled and the deed of trust released of record.

The appellant answered denying the equity, of the billj and asserting the genuineness of the notes in her possession, and filed her cross-bill praying for a foreclosure of the deed of trust. The cause being heard on pleadings and proofs, a decree was rendered dismissing the cross-bill for want of equity, and finding that the two notes held by appellant, and the deed of trust in the hands of Lipp are forgeries, and ordering them to be brought into court and canceled, and also decreeing that, upon payment by the appellee of the balance remaining unpaid on the note held by Lipp, that note also be canceled and the deed of trust released of record.

After careful examination of the evidence we are satisfied that it fully warrants the finding of the court that the notes held by appellant, and the deed of trust in the possession of Lipp, are forgeries, and also that the appellee has made payments on the genuine notes to the extent and in the manner alleged in the bill.

An attempt was made by the appellant to show a recognition of the genuineness of the notes held by her by the appellee some time after she had purchased them. Her agent and. attorney, in whose hands she had placed the notes, testifies that at the date of maturity of the first note the appellee came to him to obtain an extension of that note for one yean1, representing that he could not readily raise the money at that time to pay it, and that an extension of the note for one year was then agreed upon between the appellee and said agent, and evidenced by an indorsement on the note signed by the appellee, the appellee at the time paying §15 as the consideration of the extension. These facts are sworn to with much positiveness by said agent, but are denied with equal positiveness by the appellee, who testifies that he did not visit said agent on the occasion referred to, and had never seen or known him until a period some months later; that he never applied to said agent for an extension of said note, or knew that it was in his hands, or that such note was in existence until long afterward, and that his signature indorsed on the note was also a forgery.

There is but little in the evidence, when properly considered, that tends in any material or satisfactory manner to corroborate either of these witnesses in their testimony in relation to this matter. The issue thus presented was purely one of fact which the court below, who saw and heard the witnesses, could much more advantageously and satisfactorily determine than we can. As that court reached the conclusion that the appellee’s version of the matter was the true one, we see no ground for dissenting from that conclusion.

But even if the appellee had recognized or admitted the genuineness of said notes at the time and under the circumstances alleged, such admission could not have been given the force of an estoppel, for the evidence fails to show that the appellee was thereby in any respect induced to change her position. According to the evidence the notes in her hands were purchased and paid for by her a few days after their date, and nearly a year prior to the alleged extension. She manifestly was not induced to purchase the notes or part with her money by reason of appellee’s admissions. Hor does it appear with any degree of clearness or certainty that she was thereby deterred from pursuing any remedy against Freudenberg or any other person, which she would have pursued if the admission had not been made. It is not pretended that she contemplated or was about to seek any such remedy, or that she would have been likely to do so if the appellee had made no statement whatever to her agent. So far as appears her conduct was in no way influenced by the appellee’s admissions, if any such were made, and so the doctriné of estoppel can not apply.

The decree, in, our opinion, is warranted by the evidence, and it will therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Lehigh Valley Coal Company v. S. W. Curtis.

      Sales — Contract for Sale of Coal, Subject to Order of Vendee — Reasonable Time — Evidence.
    In the construction of a contract for the sale of a large quantity of coal, subject to the order of the vendee, it is held: That the law implies that the coal was to be ordered within a reasonable time; that what was a reasonable time was a question of fact to be determined from the evidence presented tending to show what the parties understood would be reasonable; that their letters, the season of the year and the usual course of business should be considered in determining such reasonable time; and that, in viiw of all the evidence, the time, within which the vendee was bound to order coal and the vendor to deliver it, was the time between the execution of the contract, in June, 1879, and the opening of navigation in the spring of 1880.
    [Opinion filed February 2, 1887.]

      Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement Per Quriam. This was an action in assumpsit brought by appellee to recover damages for a failure by appellant to deliver coal ordered under a contract. The evidence showed that appellee wrote to appellant the following letter:
    “ Geneva, May 14, ’79.
    “ Mb. E. M. Chebeie.
    “ Dear Sir: At what price and upon what terms can you sell me a cargo of hard coal, say about 600 tons, 400 chestnut and 200 range, or about that proportion, delivered on cars in Chicago, and at what price can you sell me 600 or 700 tons, all rail coal, about the same proportions as to size, delivered in Chicago, as I may want it during the season.
    “Very truly,
    “ S. W. Curtis.”
    The foregoing was replied to as follows:
    “ Chicago, May 15, 1879.
    “S. W. Curtis, Esq., Geneva, Ill.
    “ Dear Sir: In reply to yours of the 14th, I will say, we will sell you a cargo of say 600 tons nut and 200 tons stove, delivered on C. & ÜST. W. R. R. cars here at 83.40 per ton for the nut, and 83.50 for the stove, all 2,000 lbs. I will also sell you 700 tons all rail coal, delivered to you here on cars as called for, at 83.85 per ton, 2,000 lbs. I shall be pleased to have your order, and shall send you very nice coal. The vessel coal I will make for immediate shipment. The rail coal I have made you the only proposition I have made this season for future delivery. I will hold this open all this week for your acceptance. “Tours truly,
    “E. M. Cherrie, Agent.”
    On the 18th of June following, Curtis came to Chicago and went to the office of appellant, and there the following memorandum was signed:

      “Chicago, 18th June, 1871.
    “S. W. Curtis, Esq., Geneva, Ill.
    “ Dear Sir: We will sell yon (700) seven hundred tons of all rail coal, to he delivered as ordered at §3.85 per ton, of 2000 lbs., on track Chicago, for all sizes anthracite coal.

      “ Tours truly,
    “B. M. Cherrie, Agent.

      “ Accepted.
    “S. W. Curtis.

      “ Terms cash first of each month following the delivery for what coal was delivered the previous month.

      “ S. W. Curtis. Cherrie, Agent.”
    From time to time prior to May 1, 1880, Curtis ordered and received from appellant 360 tons and 600 lbs. of coal, paying therefor the contract price, and on May 7, 1880, paid appellant all that was due on all coal that had been received by him prior to that date.
    On July 22, 1880, Curtis sent to appellant an order for one'. car of chestnut coal. The ear load was sent billed at §5.72 per ton. In September appellee demanded the balance of the coal under the contract and appellant’s agent, Cherrie, claimed that the contract expired with the season, which he claimed ran from May 1st one year to May 1st of another. Some four witnesses who were well acquainted with the coal business in Chicago testified that there was no usage in such business by which all contracts for the sale of coal in bulk, when no time was mentioned, meant for or during the season, and further that the season meant the time between the opening of navigation in one year and the opening of navigation in the next. Appellee testified that he never heard of such a usage, and did not know what the term “ season ” meant.
    The court admitted all the evidence offered and found for the appellee assessing his damages at §611.59. An exception was taken to the finding and the case is brought here by appeal.
    Mr. Frederic Ullman, for appellant.

      The contract must be gathered from the whole correspondence, and not alone from the last letter or memorandum.
    The contract or memorandum reads that the coal is “ to be delivered as ordered.” The letters explain the meaning of this to be as ordered during the season, and for the purpose of such explanation, we submit they were clearly competent. Atwood v. Cobb, 16 Pick. 231; Cocker v. The Franklin H. & F. Co., 3 Sum. 532; Ellis v. Thompson, 3 Mees. & W. 452.
    The custom shown by the evidence, that in such a contract where nothing was said as to the time within which delivery should be made it was understood that the contract expires with the season, fulfils all the legal requisites of a custom. It was shown to be of long standing and universal. It is reasonable. It was proved by a number of witnesses. It is not opposed to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established principles of law. It therefore entered into and formed a part of the contract in question. Doane v. Dunham, 79 Ill. 131; Lonergan v. Stewart, 55 Ill. 44.
    Without supplying the omission as to the time of delivery, that is, standing on the memorandum of the contract alone, the plaintiff had no case, the memorandum being a mere optional contract and void. Ch. 38, R. S., Sec. 130; Pixley v. Boynton, 79 Ill. 353; Logan v. Musick, 81 Ill. 419.
    We submit that the memorandum alone, if treated as the contract, is void for the further reason that it has no mutuality.
    Curtis did not agree to do anything except to pay for such coal as he might order. He did not agree to buy 700 tons or to order 700 tons or to pay for 700 tons. He in fact, agreed to nothing, and brings himself squarely within the rule as to want of mutuality, as laid down in Bailey v. Austrian, 19 Minn. 535; C. & G. E. R. R. Co. v Dane, 43 N. Y. 240; H. & T. C. R’y Co. v. Mitchell, 38 Tex. 94.
    Mr. F. W. Tourtellotte, for appellee.
   Per Curiam.

The memorandum fixes all the terms of the sale between the parties, except the time within which the coal was to be ordered by appellee. The law would imply that the coal was to be ordered by appellee within a reasonable time. What was a reasonable time was a question of fact to be determined by the consideration of any evidence offered which tended to show what, under all circumstances, the parties to the contract understood would be reasonable. The letters which passed between appellee and appellant’s agent were proper to be considered in that regard, as also the season of the year when the contract was made, and the nature and the usual course of the business in dealing in and contracting for the sale of large quantities of coal in the Chicago market. Atwood v. Cobb, 16 Pick. 227; Jeffrey v. Watson, 1 Stark. 267.

It very clearly appears from appellee’s letter that he opened negotiations with reference to a purchase of 600 or 700 tons of coal, to be taken by him as he should want it during the season. The reply offered to sell him the 700 tons of coal mentioned as called for, and must be held to refer to the former letter asking for the terms, and to mean as called for during the season. It is easy to understand that these letters were in the minds of the parties, though they may not have spoken of them when they signed the memorandum of the sale. It is unlikely, and it seems to us, would be unreasonable, to hold that the parties intended, by the memorandum which was drawn, to make a contract under which coal might be ordered at any time until the Statute of Limitations had run. Without recourse to extrinsic evidence, the court can not say that an order under the contract during the season of 1883 would not be as reasonable as one during the season of 1880. The trial court properly admitted the evidence, but seems to have disregarded all evidence but the memorandum in reaching a conclusion. We think, in view of all the evidence, that a reasonable time within which appellee was bound to order ctial and appellant to deliver it, was the time between the signing of the memorandum and the opening of navigation in the spring of 1880. The court below erred in holding that a refusal to deliver coal ordered in July or September, 1880, rendered appellee liable, and the judgment must therefore be reversed and the cause remanded.

Reversed and remanded.


author: Per Guriam.

text:
    Jennie Stumer v Lizzie Pitchman.

      Slander — Words Actionable per se — Charge of Theft — Practice—Admission of Evidence — Bemittitur. ,
    1. In an action to recover damages for slander, it is held: That the words, 11 she is a thief,” “she stole 5530,” and other words to the same effect, are actionable pe.r se; that the evidence sustains the finding of the jury; that the defendant is guilty of uttering and publishing said words; that the instruction given for plaintiff was proper; and that the damages are not excessive.
    2. The admission of evidence can not be assigned for error where proper objections were not interposed at the trial.
    3. The practice of entering a remittitur of a portion of the damages in cases sounding in damages, to avoid a new trial, is well settled in this State, and such remittitur is not to be taken as a confession that the jury were actuated by passion and prejudice.
    [Opinion filed February 2, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Bollin S. Williamson, Judge, presiding.
    Messrs. Babnum, Bubens & Ames, for appellant.
    Messrs. Bbandt & Hoeeman, for appellee.
   Per Guriam.

This was an action on the case brought by the appellee against the appellant for an alleged slander. The jury, at the trial, found the defendant guilty and assessed the plaintiff’s damages at §2,400. From that sum the appellee remitted §800, and thereupon the court, after denying the appellant’s motion for a new trial, gave judgment in favor of the plaintiff for §1,600 and costs.

■ We are of the opinion that the words alleged in the declaration are actionable per se, and that the evidence, though quite conflicting, warranted the jury in finding the defendant guilty of uttering and publishing said words in manner and form as alleged.

All the instructions asked on behalf of the defendant were given by the court to the jury. One instruction only was given at the instance of the plaintiff, and the defendant has assigned that- for error. We have considered said instruction with care, and are of the opinion that it is not obnoxious to any just criticism.

Complaint is made of the course pursued by the plaintiff’s counsel in the examination and cross-examination of the witnesses, and of the admission of much irrelevant and improper testimony. While we are inclined to the opinion that considerable evidence was elicited from the witnesses which should have been excluded, and which we may presume would have been excluded if proper objections had been interposed, we find no exceptions to its admission preserved in the record, and upon well recognized rules of practice, its admission can not now be assigned for error.

The point is made that the damages are excessive. In cases of this character the damages are largely in the discretion of the jury and we can not say that they are too large, and reverse the judgment for that reason, unless the sum recovered is such as to strike the mind at first blush as unreasonable and excessive. We are of the opinion that such is not the case here, especially since the damages have been reduced by the plaintiff’s remittitur. The practice of entering a remittitur of a portion of the damages in cases sounding merely in damages, to avoid a new trial, is well settled in this State, and such remittitur is not to. be taken, ordinarily, as a confession that the jury were actuated by passion and prejudice. Oases sometimes occur where such inference would perhaps be warranted, but we can not say that this is one of them. We find no ground upon which we would be warranted in reversing the judgment, and it will accordingly be affirmed.

Judgment affirmed.


text:
    James W. Ellsworth v. Miner T. Ames.

      Bill to Compel Transfer of Certificate of Membership in Board of 'Trade.

    This court affirms, upon the evidence, the decree of the court below, directing the defendant to transfer to.the complainant a certificate of membership in the Chicago Board of Trade.
    [Opinion filed February 2, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. O. A. Harker, Judge, presiding.
    Mr. Melville W. Fuller, for appellant.
    It is established by a preponderance of evidence that the certificate of membership in question belonged to Ellsworth.
    The casé of Weaver v. Fisher, 110 Ill. 146, therefore does not apply, and this cause is nothing more than a bill for the specific performance of an alleged agreement on the part of the defendant to deliver a certificate to the complainant, and such is the decree.
    The general rule is that this remedy is not obtainable in equity where damages at law will afford adequate and just relief. Ho special value attaches to this certificate, and the money which will pay for one will, as the evidence shows, as readily purchase another.
    The rule in America is that the specific performance of a contract for the transfer of shares, stocks or bonds will not be decreed. Ross v. Un. Pac. R. R. Co., 1 Woolw. (U. S. C. Ct.) 26, 32; Jones v. Newhall, 115 Mass. 248; Pomeroy on Contracts, Specific Performance, Secs. 17, 18 and 19; Fallon v. R. R. Co., 1 Dillon, 125; 1 Story’s Eq. Jur., Sec. 717 et seq.; Barton v. DeWolf, 108 Ill. 195.

      Mr. Thomas Dent, for appellee.
    The decree of the Circuit Court found that the appellee was entitled to a transfer of the certificate of membership in the Board of Trade of the City of Chicago, which was the subject of controversy, and required appellant to make such transfer. This was upon principles declared by the Supreme Court in Weaver v. Fisher, 110 Ill. 146, for the case established a trust on the part of the appellant in respect to the certificate.
    The present holding by the appellant of the certificate of membership is fraudulent in as full a degree as was the case' in Weaver v. Fisher, and with more tergiversation and aggravation of unfair delay. Under such circumstances, there being a trust and a lien upon the certificate in favor of the appellee, the filing of a bill in equity to enforce the transfer of the certificate was proper. Weaver v. Fisher, 110 Ill. 146; Jones v. Fisher, 18 Chicago Legal News, 205; Barclay v. Smith, 107 Ill. 349.
   Per Curiam.

This is an appeal from a decree of the Circuit Court directing the transfer from appellant to appellee of a certain certificate of membership in the Board of Trade of the City of Chicago. We think the evidence in the record fully supports the decree of the court.

The certificate was held by appellant at the time of the filing of the bill under such circumstances as made it in equity the property of appellee, and gave the appellee the right to" a decree of a court of equity compelling its transfer to him.

There is no error and the decree of the court will therefore be affirmed.

Peeree affirmed.


text:
    Annie E. Nichols v. Homer E. Sargent.
    This court affirms the judgment of the court below without entering upon an analysis of the evidence or a discussion of the principles of law applicable thereto.
    [Opinion filed February 2, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Hutchinson & Partridge, for appellant.
    Messrs. Dexter, Herrick & Allen, for appellee.
   Per Curiam.

We have carefully examined the record in this case, and are of opinion that the findings of the court are fully sustained by the evidence, and that the court committed no error in holding, refusing or modifying the propositions of law submitted. It would serve no useful purpose for us to enter upon an analysis of the evidence, or on the elaborate consideration and discussion of the principles of law applicable thereto.

It is sufficient to say that upon all points on which the judgment of the court below is criticised by appellant, we find there was no error, and the judgment must therefore be affirmed.

Judgment affirmed.


text:
    Patrick L. Garrity and Edward S. Dreyer v. Chicago & Northwestern Railway Company et al.

      Injunctions — Dissolution—Jurisdiction—Damages.
    Upon the dissolution of an injunction at the direction of the Supreme Court, the Circuit Court may assess the damages to which the defendant is entitled, before the dismissal of the bill ’
    [Opinion filed April 26, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. M. A. Borre and Andrew M. Borre, for appellants.
    Messrs. Montgomery & Smith, for appellees.
   Per Curiam.

This appeal is from an assessment of damages upon the dissolution of an injunction which had been obtained by appellants against appellees. The injunction was made perpetual in the Circuit Court and the judgment of said court was affirmed on appeal to this court.

One of appellees sued, out a writ of error from the Supreme Court and the judgment. was reversed by that court, and, the Circuit Court allowed appellees to file suggestions of damages and assessed the damages for the reasonable value of attorney’s services in the Circuit Court, at $500. Ho other damages were asked for.

Appellants contend that, as the dissolution was the result of the action of the Supreme Court taken in this suit upon a writ of error, the Circuit Court had no jurisdiction to assess the damages upon the dissolution which the Supreme Court directed; that the writ of error was a new suit, not a continuation of the old one. There is nothing in the point. When the injunction is dissolved by a court of chancery as a result of regular proceedings, which in law are effectual to bring about the dissolution, the defendants may have such damages assessed as they are entitled to before the dismissal of the bill. Several technical objections are urged by appellants which we do not deem it necessary to discuss. Suffice it to say, that we do not find any of them tenable. The decree for damages is fully sustained by the evidence in the record and must be affirmed.

Decree affirmed.


author: Per Curiam,.

text:
    Malcolm McDowell v. The Chicago Steel Works et al.

      Sale by Corporation of Stock Pledged to Secure Stock Note — Bill to Set Aside — Want of Diligence — Acquiescence—Fraud.
    1. Upon an amended bill to set aside a sale by a corporation of certain stock p'edged to secure the payment of a stock note made by the complainant and containing an assignment of the stock with power of sale, it is held: That the complainant was not sufficiently diligent in attacking said sale as fraudulent; that his acceptance o£ a check for the amount claimed by the defendant to be the balance due him and his delay in moving to set aside said sale, sustain the inference of acquiescence; and that the evidence fails to show that said sale was in fact fraudulent.
    2. Where a power to sell property pledged, either at public or private sale, contains no provision for notice to the pledgor of the time and place of sale, such notice is waived.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Heeby M. Shepakd, Judge, presiding,
    Mr. J. H. Baymoed, for appellant.

      “ The pledgee of bonds of municipal or private corporations, payable to bearer or holder, held as security for promissory notes or bills of exchange, has the right, even in the absence of contract, to sell the same in case of default, but only upon reasonable and proper conditions as to notice of the time and manner of sale.” Jerome v. Carter, 94 U. S. 734; Hancock v. Franklin Ins. Co., 114 Mass. 155; Duffield v. Miller, 92 Fa. St. 286.
    In the case of any negotiable bond, held as security, there must be a reasonable notice of the time and place of the sale, even after demand has been made. Washburn v. Pond, 2 Allen, 474; Fletcher v. Dickinson, 7 Allen, 23; Stearns v. Marsh, 4 Denio, 227.
    And where the pledgee was unable to give notice, or make demand on the pledgor, the latter was allowed to elect whether to confirm the sale and claim the benefit of the surplus, or to repudiate the sale and hold the defendants for the bond. Strong v. Merchants Nat. Bank, 45 N. Y. 718.
    “The i ledger has a right to be present at the sale, to see that it is conducted in a proper manner, and to advance his own interest by securing greater competition.” Alexandria Co. v. Burke, 22 Gratt. 254; Washburn v. Pond, supra.

    Messrs. Stiles & Lewis, for appellees.
    A power to sell at public or private sale, at discretion, is necessarily a waiver of notice to the pledgor. The note secured to McDowell a personal demand for payment, and thirty days after the note became due in which to pay. It was clearly the intent, after the thirty days had expired, that the treasurer might sell at his discretion. Robinson v. Harley, 11 Iowa, 410; Bryson v. Raynor, 25 Md. 424; Miliken v. Dehon, 27 N. Y. 364; Cushman v. Hayes, 46 Ill. 154; Wylder v. Crane, 53 Ill. 490, 493.
    Appellant is barred by laches from having the sale set aside. Hayward v. National Bank, 96 U. S. 611.
    The acceptance by McDowell of the §1,097.22 was a complete discharge of any claim of his against the defendants on account of the stock, and estops him from any further claim.
    The plaintiff was bound to accept this money on the terms on which it was offered, or not to accept it at all. If he was not willing to take it in settlement he should have returned it. Looby v. West Troy, 24 Hun, 78.
   Per Curiam,.

In this ease appellant, who was complainant in the court below, could only obtain the relief sought by showing himself entitled to set aside a certain sale of shares of stock of the appellee corporation, which he alleged was made in violation of his rights and not in accordance with the legal requirements. The stock was pledged by appellant to secure the payment of a stock note made by appellant, and delivered to the company pursuant to a resolution of the directors passed at a meeting at which the appellant was present. The stock note was payable whenever demanded by the directors, and contained an assignment of the stock to the treasurer of the company, and an authority to sell the stock to pay the note in case of default in the payment thereof when demanded, at public or private sale at his discretion after the expiration of thirty days after such default.” The stock note was, by a resolution of the Board of Directors, declared to be due and payable, and notice of the resolution and a demand that the note be paid on a day named in the resolution was duly served upon appellant, and after the expiration of thirty days, the stock was sold at public auction for the par value thereof. A notice of the sale was published in a daily newspaper, but no personal notice that the stock would be sold, or of the time or place of sale, was given to appellant, and he alleges that he did not know of the sale of the stock until the filing of the answers in this case. The stock was sold May 22, 1880. The bill was filed in November, 1884. After the sale of the stock and before the end of February, 1883, several letters passed between the appellant and one of the directors, and a check for a sum of money was sent him, as being all that the directors were willing to pay him after deducting certain expenses he had put them to in defending certain suits which he had commenced against them. He kept the check and asked for certain information, which was refused to him, and on February 21, 1883, he requested that his stock note be given up to him, “ which I understand has been satisfied by the action of the Board of Directors.” The company refused to give up the note as long as there were unsettled accounts between them. The letters from the company and the director to appellant were not very definite, and contained little information, but it was always in the power of appellant to get all information needed by talcing legal means open to him, and while he may not have been informed in terms that a sale of the stock had been made, such facts and circumstances were within his knowledge as were sufficient to put him on notice. We are compelled to the conclusion that no diligence was exhibited by appellant in ascertaining what the company had done about selling his stock, after they had demanded payment of his note and he had failed to make such payment. The evidence discloses facts unnecessary to be detailed here, which should have made him alert to discover whether any sale would be or had been made. But after the sale hadbee'n fully disclosed by the answer, appellant waited fyom December 20, 1884, till April 2, 1886, before amending his bill so as to attack said sale. In the meantime, since the sale of the stock changes had taken place, the capital stock of the company had been increased, and the property of the company had appreciated greatly in value so that the stock would now represent more than four times its face value. Taking and keeping the money that was sent to him as all that was coming to him, and being thus slothful in moving to set aside the sale of his stock, •brings against him an inference of acquiescence as well as of delay, and it is the vigilant and not the dormant or sleeping suitor that equity assists in cases of actual or constructive fraud such as appellant alleges. We are very much inclined to doubt, even if appellant had been diligent, that he could have successfully attacked the sale of the stock, as made under the authority to sell, which he executed. It appears to have been frequently decided that an authority to sell property pledged, either at public or private sale, when given in an agreement in which nothing is said as to notice, is a waiver of notice to the pledgor of the time and place of sale. Robinson v. Harley, 11 Iowa, 410; Bryson v. Baynor, 25 Md. 424; Miliken v. Dehon, 27 N. Y. 364.

Upon the whole record in this case after an examination of all the evidence, we are not convinced that any fraud was actually perpetrated upon appellant. It may be that he was treated unkindly and perhaps not altogether fairly, when all the circumstances are considered, but the proceedings of the corporation were legal and were open, and the reports of its business, its progress and the value of its property, as exhibited by the officers to the company from year to year, were open to appellant, and he could have informed himself of their contents, and probably corrected any false statements in them, had he taken the trouble to do so. That the appellee, O. B. Buckingham, was hostile to him and made it unpleasant for him, and was anxious to have him out of the concern, may be true, but we are not shown by the evidence in this record, that the rather indefinite charges of fraud made in the bill aie proven. But if it were otherwise, we think the course of appellant, with reference to the facts as he claims them to be, was such as to preclude him from relief under the rule applicable in a court of equity.

The decree will, therefore, be affirmed.

Decree affirmed.


author: Moran, J.

text:
    Moses W. Powell v. The Chicago Carpet Company.

      Sales — Guaranty—Notice of Acceptance — What Sufficient.

    The notice of the acceptance of a guaranty need not he formal nor express. It is sufficient if it comes to the guarantor from the person for whom he is bound.
    The case of Newman v. Streator Coal Co., 19 Ill. App. 594, distingu'shed.

    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

      Messrs. E. H. & N. E. Gary, for appellant.
    Messrs. Flower, Remy & Gregory, for appellee.
   Moran, J.

This action is apon a guaranty in writing in the following terms: “Chicago Carpet Company: Let Anstin Bryant have what furniture and carpets he wants on thirty, sixty and ninety days, and I will see that the "bill will be paid when due.” Signed by appellant.

When the guaranty was given, Bryant was in the employ of appellant and told appellant that he was going to housekeeping and wanted to get some furniture and carpets from appellee, and that he could get them if appellant would back him. At the time he gave the guaranty appellant was informed that the amount would be $200 or $300 and a day or two after he gave the guaranty he inquired of Bryant, and Bryant told him that he had got the goods. The guaranty was given in April and Bryant continued in appellant’s employ until September. The amount now claimed by appellee is $237.08.

This case is clearly distinguishable from Newman v. Streator Coal Co., 19 Ill. App. 594. There the guaranty was a continuing one; wholly uncertain and unlimited in amount, and growing out of a series of transactions to be continued for an indefinite period of time.

Here a single transaction or purchase of furniture and carpets is contemplated and the terms' of the credit, except the specific amount thereof, are stated in the guaranty. There the plaintiff and defendants were strangers, here they are business neighbors, their respective places of business being very near together. There it was impossible to infer notice of the plaintiff’s acceptance of the guaranty from any proof in-the case. Here there is evidence and circumstances from which notice of acceptance may well be inferred. The notice of the acceptance of the guaranty need not be formal nor express. It may be implied from the circumstances of the transaction-The principle which underlies the law of guaranty is that this contract, like every other, must be known to the parties. If the party sought to be charged is made aware of the acceptanee of the guaranty, by any one, he is placed in a position to protect himself, if he considers there is danger of a loss, and the chief reason why he should have notice is, that he may govern his conduct toward the person for whom he has become bound so as to indemnify himself.

It is sufficient if notice of the acceptance of the guaranty comes from the person for whom the guarantor is bound. Oaks v. Weller, 16 Vt. 63; Woodstock Bank v. Downer, 27 Vt. 539. In Noyes & Co. v. Nichols, 28 Vt. 159, it is said: “We apprehend that the defendant had all the notice of the advancements made upon this guaranty which the law can require. He knew the plaintiffs were furnishing goods to the principal from time to time and had a general knowledge of about the amount of goods furnished. The object of the notice is to secure to the guarantor his rights and means of protecting himself, and if he knew about the amount it was enough to put him on inquiry, if he wished to know the precise amount, and it was all that was necessary for the security of the guarantor and sufficient to enable him to act understandingly as it respected his principal.” Here the guaranty is absolute in form and appellant knew within a day or two after the purchase that the condition under which he had agreed to become liable had been performed. He knew the goods, which Bryant told him he could ,obtain on his guaranty, had been obtained. If he desired further details he had but to inquire of the person whose security he had become. Case & Co. v. Howard, 41 Iowa, 479.

The evidence shows that appellees diligently sought to collect the bill from the principal as it became due, and it tended to show that appellant had notice that the bill was not being paid by Bryant some time before he left the employ of appellant. There is no evidence to support the contention that the time of payment was at all extended. We find no error in the giving, refusing or modifying instructions, and the judgment of the Superior Court must therefore be affirmed.

Judgment affirmed.


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    Charles H. Slack v. Patrick J. Casey.

      Practice — Judgment by Default — When Set Aside at the Same Term— Set-Off and Recoupment.

    1. A judgment by default will not be set aside in order that the defendant may maintain a mere cross-action; but where the defense includes matter of recoupment the judgment may be set aside for sufficient cause.
    2. Where it appears by affidavit that the defendant has a meritorious defense to the merits, it is usual, under the practice in this State, to set aside a default at the term at which it is entered, if a reasonable excuse is shown for not having made the defense; and in such case the point of having a meritorious defense is altogether the more important of the two required.
    3. In the case presented, it is held: That the defendant should not be debarred from making his defense merely by reason of the fact that his attorney miscalculated the progress of the court’s business to the extent of twenty minutes, especially as the case was taken up out of its order.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. E. P. Blanchard and Dent & Black, for appellant.
    Messrs. Baird & Burchard, for appellee.
   Per Curiam.

In this case judgment was entered in the court below against appellant on a call of the case by the court for trial. A motion was made by appellant to set aside the judgment and for a new trial of the case, which was overruled, and the action of the court in overruling said motion is presented for review by the appeal. From the affidavits filed in support of said motion, and which are set out in the bill of exceptions filed in said case, it appears that this case stood Ho. 5 on the trial call of the court on June 7th; that for some days prior thereto defendant’s witnesses had been subpoenaed, and had been in attendance on the court; and that on June 7th appellant and one of his employes held themselves in readiness to testify in said case on being notified that the case was called. Appellant’s attorney made inquiry from the attorneys who were watching cases on the call, and was informed that two of the cases at least, of those that preceded this in the call, would be tried. June 7tli was the first day of the term, and the attorney supposed that some little time would be taken up by the court in impaneling the jury for the term, and knowing that this was the fifth case of the call and having two contested motions coming up at ten o’clock, before other courts in the court house, the attorney deemed it safe to attend to the motions, and believed that he would be back before this case could be reached. He returned to the court room where this case was on call, at twenty-five minutes after ten o’clock, and found that the jury was impane1 ed in a case that stood before this one on the call, but learned from a lawyer present that this case had been called and a judgment entered therein, and that it came to be called and tried before the case which preceded it upon the calendar, because by an arrangement between the counsel in said cases and the court, said cases were passed for fifteen minutes. It further appears that appellant’s attorney had, on Hay 29th, asked a short-hand reporter to watch said cases, and it appears from the affidavit of said reporter, that about ten o’clock on June 7th, he learned by inquiry in the court room that a case preceding this on the calendar wpuld be takén up for trial, and then went to other court rooms to see about other cases, and returning in a few minutes found, to his surprise, that this case had been called and disposed of. The matter was at once called to the attention of the court by appellant’s attorney and the court directed him to make his motion and file his affidavits and give notice, all of which was done in apt time. The affidavit of appellant shows a meritorious defense, taking the statements therein to be true, which, subject to strict scrutiny, must be done in this application. There was a plea of the general issue on file and also a plea of set-off. The court on overruling the motion to set aside the judgment offered to allow appellant to withdraw the plea of set-off, in order that he might maintain an original action for the set-off claimed. If the appellant had nothing to urge against the judgment but a claim for a set-off, we should approve the course of the court below, for a judgment will not be set aside in order that the defendant may maintain a mere cross-action; but the examination of the facts set up in appellant’s affidavit shows that the defense consists mainly of matter of recoupment, which, if not allowed to him in this suit, would be forever barred by the judgment. The suit was brought to recover for painting, which appellant swears was done under a wr’tfen contract, and he appends to his affidavit a copy of said contract, and swears to having paid $159 to finish work not done by appellee according to contract and done contrary thereto. Appellant swears further to payments made to appellee and sets out a copy of a receipt in full for one item, painting barn, which item is claimed by appellee in his bill of particulars as due, and which, with other items, made up the sum of $473, for which appellee had jud ment.

The 39th section of the Practice Act provides that the court may, during the term, set aside any judgment upon good and sufficient cause, upon affidavit upon such terms and conditions as shall be deemed reasonable. In Mason v. McNamara, 57 Ill. 274, the Supreme Court said: “As we understand the long and well settled practice in this State, it has always been liberal in setting aside defaults at the terms at which they were entered, when it appears that justice will be promoted thereby. Mor has the practice, so far as our ' knowledge extends, been so rigid as to require the party moving to set the default aside to bring himself within the strict rules which govern applications in equity for new trials at law. But where it appears by affidavit that the party has a defense to the merits, either to the whole or a material ¡Dart of the cause of action, it has been usual to set aside the default if a reasonable excuse is shown for not having made the defense.” In such applications the point of having a meritorious defense is altogether the more important of the two required, and where the judgment appears from the affidavits to 'be unjust, a certain degree of neglect may, especially as terms can be imposed, be held excusable. Waugh v. Suter, 3 Ill. App. 271.

It clearly appears in this case that appellant had prepared for the trial of his case, and made such arrangements as under the ordinary course of business in the court, would have enabled him to be present to offer his defense. His attorney might, it is true, have exercised such a degree of diligence that the case could not have been called without his knowledge, but where the client has been diligent, he ought not to be mulcted by reason of the fact that his attorney has miscalculated the progress of the court’s business to the extent of twenty minutes, particularly when it appears that he was caught wrong, because two cases standing before his in the call, were passed for a few moments and his case thus reached and done for before, in the order of events, in the course of which there was reason for expecting that its time had come. In order that justice should be done, it is necessary that the judgment be set aside and the defendant permitted to make his defense. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


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    S. Dexter Ludden v. The Buffalo Batting Company.

      Factors — No Right to Pledge Goods — Trover Lies against Pledgee— . Nature of Action — Recoupment.
    1. Although a factor having a lien on goods for advances or for a general balance can not pledge the goods, he may deliver them to a third person for his own security, with notice of his lien, as his agent to keep possession for him. Such change does not divest the factor of his right, for it is in effect a continuance of his possession.

      2. • A factor having a lien on goods for advances and freight can not. merely by notifying the pledgee that he has made advances on the goods, pledge them for a loan to himself for an amount greater than his advances, and invest the pledgee thereby with his lien to the extent of such advances.
    3. The pledgee deals with the factor at his peril, and if in fact the circumstances of the pledge constitute it a conversion of the goods, it is tortious, and the receipt by him of the goods is a conversion of them.
    4. In an action of trover against the pledgee of certain goods pledged to him by a factor, it is held: That trover being an equitable action, the plaintiff can recover damages only to the extent of the injury actually sustained; and that the pledgee may recoup, from the value of the goods pledged to him, the amount of the factor’s advances thereon.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hun. Elliott Anthony, Judge, presiding.
    Statement by Horan, J. This was an action of trover against appellant brought by appellee to recover the value of 180 cases and 100 bales of cotton bats. The bats were shipped by appellee to Fbwler & Co. for sale on commission in regular course of trade. Fowler & Co. advanced to appellee on the goods $1,200 and paid for freight on them $79.20. The bats were stored in appellant’s warehouse. Prior to their being stored there appellant had loaned to Fowler. & Co. some $3,500 on other goods which were-in storage in his warehouse, and after the bats were placed in the warehouse appellant advanced to Fowler & Co., upon them, $1,000 in money, and upon the credit of them released to Fowler & Co. other goods which had been pledged, to the amount of about $700. Appellant claimed to have loaned upon the bats in all about $1,700. Fowler & Co. gave a written memorandum to appellant, containing, among other things, statements to the effect that they had advanced on the bats to the extent of 75 per cent, of their value. Shortlyafter pledging the bats to appellant, Fowler & Co. failed and left the State, leaving no assets.
    The case was submitted to the court for trial, a jury being waived, and after the evidence was closed the following propositions of law, numbered third and fourth, were submitted to the court by appellant to be held.

      Third: “ Where, a factor has a lien upon goods for an advance made to his ‘principal or for charges paid by him on , such goods, he has such an interest in the property that he may pledge the same to another 23crson to the extent of such lien and without impairing the factor’s lien or giving the owner of the goods a right to reclaim the same on any other terms than he could have done had the factor not pledged the goods.”
    Fourth: “Where a factor has a lien upon the goods intrusted to him and he pledges the same in good faith, and the owner sues the factor’s pledgee for the value of the goods, the amount sought to be recovered by such suit must be reduced by the sum due to the factor from the 2daintiff for advances made by such factor to the plaintiff or for proper charges incurred by the factor on account of the goods to the extent of the charges which the plaintiff should have paid This rule is applicable to this suit.”
    The court refused to hold said 2>ropositions and found for the plaintiff, assessing damages for appellant for $2,000, being the amount the bats came to at their market value and without making any deduction for money advanced or freight paid by Fowler & Co.
    Appellant exce2>ted to the ruling of the court and to the finding, and from the judgment of the court entered thereon this a2>peal is prosecuted to this court.
    Mr. Frank J. Crawford, for appellant.
    A factor can, without doubt, deliver over the actual possession of the goods to a third person, with notice of his lien, in which case the lien will be kept alive and may be used as security for a third person. Silverman v. Bush, 16 Ill. App. 437; McComber v. Davis, 7 East, 7; Urquhart v. McIvor, 4 Johns. 103; Story on Bailm., Sec. 327; Donald v. Suckling, L. R., 1 Q. B. 585.
    It is well established that a pledge is good to the extent of the pledgor’s interest in the 2Jro23erty.
    In Belden v. Perkins, 78 Ill. 449, it is held that “where property is pledged, the pledgee acquires a special property therein, and he may transfer the' same without impairing the original lien thereon, or giving the owner a right to reclaim it on any other or better terms than he could have done before such transfer.”
    Mr. Frank Baker, for appellee.
    That the factor has a lien for the amount of his advances is true. That he may deliver the goods so consigned to him to a third person to hold for him with a notice of his lien, without waiving his lien, we also concede. But the factor can not pledge the goods of his principal. The authority is to sell, not to pledge. A pledge by a factor is therefore a tortiousact, and the lien of the factor can not b.y such tortious act be transferred. This rule has been strictly adhered to since it was established in Patterson v. Tash, 2 Strange, 1178.
    Upon the facts in this case it is clear that the character of the transaction between Fowler & Co. and appellant was a deposit by way of pledge, not a mere delivery of goods with notice of lien. Such a deposit was held wrongful and tortious in Gray v. Agnew, 95 Ill. 315.
   Moran, J.

Fowler & Co. undoubtedly had a lien on the goods consigned to them by appellee to the extent of the $1,200 advanced by them to appellee upon the goods. The third proposition presented to the court to be held, and claimed to be applicable to the facts in the case, is that a factor having such a lien for advances has such an interest in the property, that he may pledge the same to another to the extent of such lien, without impairing the lien or giving to the owner of the goods a right to reclaim them on any better terms than he could have done had the factor not pledged the goods.

It is a well settled doctrine of the common law, that a factor having a lien on goods for advances, or for a general balance, has no right to pledge the goods, and if he does pledge them he conveys no title to the pledgee. Story on Bailment, Sec. 325.

But though the factor can not pledge the goods of his principal as his own, he may deliver them to a third person for his own security with notice of his lien, and as his agent to keep possession for him; and such change of the lien does not divest the factor of his right, for it is in effect a continuance of the factor’s possession. 2 Kent’s Com. 626.

In Silverman v. Bush, 16 Ill. App. 437, the doctrine was thus stated by Mr. Justice McAllister: “ If Crain [the factor] gave Silverman [the pledgee] notice of his lion, and merely placed the goods in his possession to hold to the extent of that lien, and as a substitute for him [Crain], we are of opinion that such transfer or change of lien was lawful, and Crain’s right was not thereby divested.” And in Urquhart v. Mclvor, 4 Johns. 102, Kent, C. J., laid stress upon the fact, that it was understood and dcc’ared by both the pledgor and pledgee to be a mere deposit of the lien upon behalf of the defendants in the hands of their agent to hold for them, and to surrender to the plaintiff the formal possession on his giving to the defendants their just indemnity. There was no tortious conversion about such change of the lien. In McComber v. Davis, 7 East, 11, the language of Lord Ellenborough is: “ That whether or not a lien might follow goods in the hands of a third person to whom it was delivered over by the party having the lien, purporting to transfer his right of lien to the other as his servant and in his name, and as a continuance in effect of his own possession, yet it was quite clear that a lien could not be transferred by the tortious act of a broker pledging the goods of his principal, which he had no authority to do.” We do not understand that a factor having a lien on goods in his possession for advances made by him can, by merely notifying the pledgee that he has made advances on the goods, pledge them for a loan to himself for an amount greater than his advances, and invest the pledgee thereby with the factor’s lien, to the extent of the factor’s advances. If the factor falsely states to the pledgee the amount of his advances, and obtains by that means a loan for more than the advance, pledging the goods for it, he has certainly been guilty of a tortious act, and has thereby converted the goods to his own use. The pledgee deals with the factor at his peril, and if in fact the circumstances of the pledge constitute it a conversion of the goods, no matter that the pledgee is innocent and has been imposed upon, the pledge is tortious and the receipt by him of the goods is a conversion of them.

In this case the evidence' showed that while Fowler & Co. did not pledge the goods as their own they falsely stated that they had advanced on the goods to the extent of 75 per cent, of their value, and, as appellant claims, obtained on the credit of them $1,700, when in fact their advance and lien was only to the amount of $1,200. Indeed, it may well be inferred from the- evidence, that the actual transaction was a special pledge of a portion of these bats for the sum of $1,000 and a general pledge of the remainder of them in exchange for the goods of other consignors which weré withdrawn from the possession of appellant as collateral security for a loan of $3,500 which had been made prior to the receipt by Fowler. & Co. of any of the bats. We think that such transactions were a conversion of the goods, and it follows that the factor’s lien for advances and for freight paid,'did not pass to appellant in such manner as that he could hold the goods until a tender of the amount advanced was made. By the act of conversion the lien was determined, and after the conversion trover could be maintained by the owner against the factor, without any tender of the advances or any demand for the goods, and the pledgee can not be in any better position in that respect than his pledgor. Therefore, if it be assumed that the third proposition is law, which question we do not intend to decide, still it was properly refused by the court as it was not applicable to the facts as shown by the evidence in the case. Instead of pledging the goods to the extent of his lien the factor falsely stated the extent of his advances, and pledged the goods for a sum much in excess of the amount for which he had a lien upon them.

This brings us to the consideration of the fourth proposition. Story says, in, his work on Bailments, Sec. 326, that while .the doctrine that the factor can not pledge the goods of his principal is recognized in this country, it has not as yet been carried to the extent of deeming the pledge altogether a tortious proceeding, so that the principal may maintain an action against the pledgee without discharging the lien, or at least without giving the pledgee a right to recoup the amount of the lien in the damagesThe latter proposition is, in our opinion, the one -best sustained by authority. It is true that in a note to this section, the editor states the rule as drawn by him from the “ later decisions ” to be contrary to that stated by the learned author, but the cases cited by the editor wholly fail to sustain his position. It is not inconsistent to say that while the principal may maintain trover against the factor’s pledgee for the goods converted, yet the damages shall be reduced by any advances or payments by the factor made upon the goods. Trover is an equitable action, and the rule frequently upheld is, that the plaintiff can recover damages only to the extent of the injury actually sustained. Thus if the mortgagee bring trover against the mortgagor he can recover only the amount of the debt, and where an executor de son tort is sued in trover by the rightful administrator, he may show in mitigation of damages that he paid debts which the administrator would be bound to pay, and if such payments equal the value of the property converted, the administrator will recover only nominal. damages. 1 Williams on Executors, 144. If the action in this case was against the factor it would not be questioned but that the amount advanced by him upon the goods might be recouped from the value of the goods which the plaintiff would be entitled to recover. This has been frequently done in actions brought to recover from a pledgee. Javis v. Rogers, 15 Mass. 389; Stearns v. Marsh, 4 Denio, 227; Story on Bailments, Sec. 349, and case cited. The right to recoup does not rest upon the principle of lien. It exists after the lien has been destroyed by a tortious act of the party .in whose favor it originally obtained, the sole object of the law in awarding damages to a plaintiff being to compensate him for the inj ury he has suffered from the wrongful act of the defendant. The tortious pledge of the goods by the factor is not, in form, an assignment to the pledgee of the factor’s claim against the- principal for advances, but it certainly operates to transfer as between the factor and the pledgee, all rights which exist to have damages for the tortious act mitigated as against the principal.

'This doctrine was applied by our Supreme Court in the case of Belden v. Perkins, 78 Ill. 449. There Perkins pledged certain corn to one Patterson to secure a debt. By the terms of the contract under which the corn was pledged, Perkins was entitled to determine the time when the corn should be sold, but Patterson sold the corn to Belden without notice to, or the consent of Perkins. Belden, in his turn, sold the corn and received the money for it, and Perkins sued Belden for money had and received, and recovered judgment for the whole value of the corn without any deduction for the debt for which it was pledged. The Supreme Court reversed the case on the ground that if Patterson had converted the corn into money and the action had been against him, he would have been entitled to recoup the debt due him, and saying: “If then, the pledgor could not recover the value of the property from the pledgee without the payment of the debt for which the property was pledged, does not the same principle apply in an action against the vendee of the pledgee?” There was in that case no formal assignment of the debt to the purchaser of the corn, yet the court held that Belden, the vendee of the pledgee Patterson, might recoup the amount of the debt due Patterson from Perkins, against Perkins’ cause of action. That was an action for money had and received, but no doubt trover could have been maintained, and no reason occurs to us why the same measure of damages would not have obtained in such action, for trover and money had and received are both equitable actiuns. The same .rule in substance was applied by the court in Tripp v. Grouner, 60 Ill. 474. There, goods had been distrained for rent, and were sold by the Constable without having been appraised as the law required. The owner of the goods brought trover against the Constable for the conversion of the goods, and the Supreme Court held that the action could be maintained, but that the amount which the defendant had paid upon the plaintiff’s rent should be deducted or applied in mitigation of damages, hfor is there wanting very respectable authority directly in point. The First National Bank of Louisville v. Boyce, 78 Ky. 42, so far as the question now under consideration is concerned, is not to be distinguished from the case at bar. There a lot of bagging was shipped by a manufacturer to a firm of commission merchants to be sold on his account and the proceeds remitted. The factors advanced upon the goods, and having placed some of them in a warehouse, took warehouse receipts which they pledged as their own to secure a loan made by the bank for an amount in excess of the advance. The principal brought an action under the code against the bank for the value of the bagging, and the bank answered, setting up the insolvency of the factors, and claiming to set off, against the value of the goods, the amount which the factors had advanced on them to the owner. A demurrer was sustained to the answer, and on appeal the Supreme Court reversed the case, after a very full review of authorities, taking the ground that such equitable defense must be clearly admissible under the code, as the manifest equity and justice of the cases had carried the doctrine so far at common law “ that equitable defense by way of recoupment or equitable set-off has been entertained and made effectual in actions of trover. While saying the factor had no right -to pledge the goods of his principal, the court have with great unanimity allowed the amount sought to be recovered of the innocent pledgee of the factor to be reduced by sums justly due from the principal to his factor. Wherever the action sounds in damages, the plaintiff is restricted in his recovery to the damages actually sustained.”

We are of opinion, therefore, in view of the foregoing authorities, that appellant was entitled to recoup from the value of the goods pledged to him, the amount which Fowler & Oo. had advanced to appellee upon the goods, as well as the amount of freight paid by them for the goods at the time they were received by‘them. The court should have held the fourth proposition of law and should have deducted from the appellee’s recovery, the money shown to have been advanced to appellee and the freight charges paid by the factor, and for the error in that regard, the judgment must be reversed and the'cause remanded! Reversed and remanded.


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    Charles P. Willard v. Adolph Swanson.

      Instructions — Slight Inaccuracy — Comparative Negligence— Errors— Assignment of — Damages for Personal Injury — Whether Excessive.

    1. Where the law is correctly stated in the instructions given, a slight departure from strict verbal accuracy in one instruction will not justify a reversal, unless the circumstances of the entire case compel the conclusion that the inaccuracy in fact misled the jury.
    2. In an instruction on comparative negligence it is best, though not necessary, to state the hypoth sis of ordinary care, and to nse the word “ slight” instead of “ some” in describing the negligence of the plaintiff.
    3. An instruction for the appellee stated in the same terms as one given for the appellant can not be assigned by him as error, he having induced' the court to treat it as correct.

      4. The appellant can not assign as error a modification of an instruction asked, which could not have injured him.
    5. In an action by an employe against his employer for damages for a personal injury, a verdict for $2,030 is held not to be so excessive as to show an unreasonable exercise of the discretion of the jury.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. W. G-. & A. T. Ewing, for appellant.
    Eor the injuries sustained by appellee, to wit, the loss of part of the second finger of the left hand, $2,000 is excessive da,mages. City of Elgin v. Renwick, 86 Ill. 498; C., R. I. & P. R. R. Co. v. Payzant, 87 Ill. 125; Kepperly v. Ramsden, 83 Ill. 354.
    The appellee was not in the exercise of ordinary care at the time of the injury and consequently can not sustain his judgment, even if appellant’s negligence was gross. Pennsylvania Co. v. Lynch, 90 Ill. 333; Sinclair v. Berndt, 87 Ill. 174; Myers v. I. & St. L. R’y Co., 113 Ill. 386; St. L. & S. E. R’y Co. v. Britz, 72 Ill. 356; St. L. Bolt & Iron Co. v. Burke, 12 Ill. App. 369; I. C. R. R. Co. v. Hetherington, 83 Ill. 510.
    If appellee had the opportunity of knowing the situation and condition of the saw, with reference to guards and loose pulley, he is presumed in law to have known, and can not recover for an injury occasioned or contributed to by his negligence in that regard. . Penn. Co. v. Lynch, 90 Ill. 333; Wharton on Negligence, Secs. 214, 215.
    . If any employe knew of the danger, or by the exercise of ordinary care and prudence he could have ascertained it, and does not do so, and continues in the service, he is deemed to have voluntarily accepted the risk, and can not recover. C. & T. R. R. v. Simmons, 11 Ill. App. 147; Moss v. Johnson, 22 Ill. 633, 642; I. C. R. R. Co. v. Jewell, 46 Ill. 99; Wright v. N. Y. C. R. R., 25 N. Y. 564; Hayes v. Western Trans. Co., 3 Cush. 270.
    Appellee, without any real or apparent necessity, went to the saw table for kindling, and must bear the consequences of his voluntary act, the rule being that a servant who voluntarily selects a dangerous method of doing a thing and is injured can not recover. St. L. Bolt & Iron Co. v. Burke, 12 Ill. App. 369.
    It is the duty of one approaching a dangerous place to use reasonable care to avoid injury; a failure to do so will preclude a recovery. City of Bloomington v. Read, 2 Ill. App. 542; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; C. & N. W. R’y Co. v. Hatch, 79 Ill. 137.
    Mr. I. K. Boyesen, for appellee.
    It is not controverted that plaintiff could not recover if he was not in the exercise of ordinary care; the rule has been such ever since the Jacobs case, in 20 Ill. But it has not been held necessary in each instruction to set forth that principle. It is sufficient if the instructions, as a series, correctly present the law to the jury. T., W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Walker v. Collier, 37 Ill. 362; Yundt v. Hartrunft, 41 Ill. 9; C. & A. R. R. Co. v. Johnson, 116 Ill. 206, 210.
    The damages awarded are not excessive. Elgin v. Renwick, 86 Ill. 498; C., R. I. & P. R. R. Co. v. Payzant, 87 Ill. 125; Kepperly v. Ramsden, 83 Ill. 354; Chicago W. D. R. R. Co. v. Hughes, 69 Ill. 170.
   Moran, J.

The judgment appealed from was rendered in favor of appellee in an action brought to recover for injuries received by appellee from a circular saw which was running in the machine shop of appellant, where appellee was engaged as an employe. The accident occurred in the night time, and it was claimed that the saw was allowed to run all the time whether in use or not; that there was not light enough so that a person could distinguish whether the saw was running or not; that it was not guarded in any way, and appellee, while in the exercise of ordinary care, came in contact with said saw and was injured.

Appellant contends that the second instruction given for the plaintiff, erroneously states the doctrine of what is known as comparative negligence. Said instruction is as follows: “ You are further instructed that even though you find from the evidence that the plaintiff was guilty of some negligence contributing to the injury testified about, and was not free from negligence on his part, this will not prevent him from recovering in this action, if he is otherwise entitled to recover, provided that you believe from the evidence that the defendant was guilty of gross negligence, contributing to the injury testified about, so that the negligence of the plaintiff was slight in comparison with that of the defendant, if any, and the negligence of the defendant, if any, was gross in comparison with that of the plaintiff, if any, and that such negligence of the defendant, if any, produced the injury complained óf.”

Counsel contends that the instruction should have required the jury to find that the negligence of the plaintiff was in fact slight when considered in relation to all the circumstances of the case as well as slight in comparison with that of defendant, and he argues that some negligence may be ordinary negligence as well as slight negligence and that if the “ some negligence ” supposed in the instruction was in fact ordinary negligence, it could not become slight by comparing it with the negligence of the defendant even if that were gross. If the jury were not fully instructed as to the necessity of plaintiff’s having exercised ordinary care, wre should be inclined to regal'd counsel’s contention as not without force: but we find that plaintiff’s first instruction contains the hypothesis of ordinary care on his part, and that in several of the defendant’s instructions given, the jury are plainly told that unless plaintiff was, at the time of the accident, in the exercise of ordinary care on his part he could not recover. Considering the instructions given as a series, or considering plaintiff’s instructions alone as a series, the jury are told that if the plaintiff was in the exercise of ordinary care and yet was guilty of some negligence, yet if the defendant was guilty of gross negligence contributing to the injury, and the negligence of the plaintiff was slight in comparison with that of the defendant, and the negligence of defendant gross in comparison with that of plaintiff, and that the negligence of the defendant produced the injury, then the plaintiff could recover. To tell the jury that plaintiff must have exercised ordinary care, and yet might recover if guilty of some negligence, which in comparison with defendant’s gross negligence was slight, is in effect and essence to tell them that the “some negligence ” must be slight in fact as well as slight in comparison. That is to say the exercise of ordinary care by an individual excludes all idea of negligence on the part of such individual that is not slight in the legal sense, and if one is found to have exercised ordinary care and yet to have been guilty of some negligence, he has been found to have been guilty of slight negligence only. It would be better always to state in an instruction on comparative negligence the hypothesis of ordinary care, and we do not say that the term slight ” is not more accurate, and for that reason is not to be preferred to the woi'd “ some ” as used in the instruction under eonsidation; but where, on the whole, the law is correctly stated to the jury, a slight departure from strict verbal accuracy in one instruction will not justify a reversal unless the circumstances of the entire case compel the conclusion that the inaccuracy in fact misled the jury. The exact form of this instruction has received the approval of the Supreme Court in C. & A. R. R. Co. v. Johnson, 116 Ill. 206, and in the City of Chicago v. Stearns, 105 Ill. 554, and the rule of comparative negligence has been repeatedly stated by the Supreme Court in the terms in which it is stated in the instruction. C. & N. W. R. R. Co, v. Dimick, 96 Ill. 42; C. & N. W. R. R. Co. v. Clark, 70 Ill. 276; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358.

Further, defendant’s counsel, in his seventh instruction given by the court without modification, stated the rule of comparative negligence in the same terms as those used in plaintiff’s instruction, and which he now contends to have been improper and erroneous. To present the instruction thus couched to the court, was to assert the accuracy of the terms in which the rule of comparative negligence was stated by the plaintiff, and one can not assign for error that which he has, by his own statement, induced the court to treat as correct. Northern L. P. Co. v. Benninger, 70 Ill. 571; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358.

Complaint is made that the court modified the defendant’s ninth instruction. As asked, said instruction stated that if plaintiff was guilty of some negligence, and defendant was also guilty of some negligence contributing to the injury, yet if the negligence . of the plaintiff and negligence of the defendant, when compared, were gross, the verdict should be for the defendant. As modified, it stated that if the plaintiff’s negligence was not slight, and the defendant’s was gross, the verdict should be for the defendant. Manifestly the modification made the instruction much more favorable to appellant than the instruction as asked, and he can not assign as error that which could not injure him.

It is claimed that the damages allowed by the jury were excessive. The damages are undoubtedly large, hut we can not say that the sum allowed is so large as to evidence any passion or prejudice on the part of the jury, or to strike the mind at first blush as being unreasonable. We can not say that the damages are so excessive as to demand that the verdiet should be set aside on that ground. Damages for an injury such as plaintiff sustained must, in the nature of the case, rest in the sound discretion of the jury, and when the court can not say that the discretion has been unreasonably exercised, the verdict ought not to be disturbed.

We are of opinion that there is no error in the record, and the judgment of the Superior Court must, therefore, be affirmed.

Judgment affirmed.


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    Peter O’Conner v. James Parrott.

      Trespass — Distress—Eviction—Punitive Damages — Whether Excessive —Question for Jury.

    1. In an action of trespass, if the circumstances warrant the allowance of punitive damages, the question of damages, within reasonable limits, is for the jury.
    2. In the case presented it is held, that a verdict for $6,500 is not so excessive as to show passion or prejudice on the part of the jury.
    [Opinion filed April 26, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. John Gr. Bogles, Judge presiding.
    Mr. Bobebt Hebvey, for appellant.
    Messrs. Mebbiam & Whipple, for appellee.
   Per Curiam.

This was an action of trespass by appellee against appellant for breaking and entering the premises of appellee and carrying away certain goods and chattels of the alleged value of $1,000. Under the pretense of serving a distress, the door of appellee’s house, which was locked, was opened during the absence from home of appellee and his family; all the goods of appellee of every kind and all the furniture in the house was removed and placed in a warehouse. The distress warrant was for about $53 and the evidence tends to show that the levy was excessive. It also appears that the real purpose of the distress was to evict appellee from the premises.

There is no suggestion in appellant’s brief that any error of law, whatever, was committed by the court below. The sole ground urged for reversal is that the damages are excessive. There is nothing in the amount allowed which would suggest that-the verdict is so-excessive as to show passion or prejudice on the part of the jury. The evidence shows property of a considerable value was taken which appellee never recovered. The circumstances warranted the jury in allowing punitive damages, and in such cases within reasonable limits the question of damages is one entirely for the jury, under the evidence.

There is no ground for reversal and the judgment must be affirmed.

Judgment affirmed.


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    William A. Christy v. Richard W. Stafford.

      Sales — Future Delivery upon Order of Vendee — Tender—Ability and bendiness to Perforin — Measure of Damages — Practice.
    3. In an action for damages by the vendor, on a contract for the sale of pickles for future delivery, it is held: That the plaintiff was not required to deliver until the defendant had ordered the goods and designated the place of the delivery; that the plaintiff was not required to tender the pickles or to offer to deliver them to appellant before the expiration of the contract in order to entitle him to maintain an action, thereon; that it was not necessary for the plaintiff to show that he had actually in his possession, on the day of its expiration, sufficient pickles to fill the contract, it being shown that by purchase from other dealers he had control of enough pickles to fill it; and that the evidence sustains the measure of damages adopted by the court.

      2. In a suit-on a contract of sale'or for damages in failing to p rform it, where delivery is to be at the option of the defendant, on notice by him, or at a place designated by b'im, it is sufficient for the plaintiff to prove an ability and readiness to deliver or perform on his part upon notice or demand by the defendant.
    8. This court will not reverse a case on a point which, from the whole record, appears to be based, at best, on a mere slip of the tongue.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the lion. Ejrk Hawes, Judge, presiding.
    Statement by Moran, J. This action was brought by appellee to recover damages for a failure on the part of appellant to perform the following contract:
    ■ “W. McHenry, HI, Nov. 15, 1883. Bought this day of R. W. Stafford,
    1,500 bids, medium (1200) Pickles @ $4.50
    1,000 “ sniall _ (2400) “ @ 5.25
    500 “ gherkins (3500) “ @ 5.50
    Less 2-)- per cent., terms cash on delivery, goods to be taken between this date and January 1,1885. Goods to he delivered at store or depot in Chicago free of charge, but when shipped in car-load lots drayage to be charged. Above sale to babona fide in case of a fair average crop, but in case the crop is short goods to be delivered in proportion. This is a continuance of the contract of May 19, 1883.
    Christy, Walker & Co.
    R. W. Stafford.”
    The contract of May 19tli alluded to was similar to the foregoing in its terms, save that the various grades of pickles were at a lower price, and the goods were to be taken be tween October 1, 1883, and January 1, 1884. Some letters passed between the parties after the making of the contract — one written by appellants November 20, 1883, in which appellee is told that if he delivers pickles to them without their orders he will have the trouble of drawing the goods both ways, for they would not accept them faster than they needed them. One letter written to appellee, March 13, 1884, by appellants, ordering several barrels and half barrels of pickles delivered at 61 Michigan Avenue at once; one letter, January 16, 1884, to appellee, stating that they had heard that- he was selling pickles by car lots and they would get every pickle they bought of him at contract price regardless of how hard it might come on him.
    Appellants denied that the letter of ¡November 20, 1883, had any reference to the contract in suit, but contended that it related to deliveries to be made under a prior contract which had not yet been completed.
    Pickles were delivered by appellee under the contract in suit only as they were ordered, and were delivered either at the store or the depot in Chicago as the order directed.
    Appellee testified that he looked for orders at the store and sought to have them take more pickles, but they could not do it; that he told appellant he was ready to give them to him, but appellant would not take them faster than he wanted them. On December 15, 1884, appellee wrote as follows to Christy, Walker & Co.:
    “ I have no order as yet when you want the balance of your pickles delivered. From what you said before, I understood that you would rather have the pickles in salt, but as by our contract they are all to be delivered by the first of January, I am putting them in vinegar to have them ready for you. I am willing to keep them in salt if you wish it, but if you do wish it, telegraph me at once. But if I do so keep them I would not waive my right to payment at date fixed by contract.
    Tours truly,
    ¡R. W. Stafford.”
    This letter was not answered by appellant, and appellee, fearing that he would order all remaining pickles to be delivered on the last day of the contract, made arrangements with other dealers to furnish the pickles to him if he should not have enough on hand himself at the time they might be ordered. Appellee notified appellant that if they did not take the pickles he would have to sell them and sue him for the difference. The market price for pickles was declining during the month of December. After the first of January, 1885, appellee sold on the market the pickles agreed to be taken by appellant and brought the suit to recover' damages. The ease was tried by "the court, jury being waived, and the issues were found for the plaintiff and damages assessed against appellant at $1,523. Exception was taken on the judgment of the court and the case is brought to this court by appeal.
    Messrs. F. K. Graeger and Cook & Uptoe, for appellant. •
    Mr. J ohe Y. Le Motee, for appellee.
   Moran, J.

The contract between appellant and appellee provided as follows: “ Goods to be taken between this date and January 1, 1885. Goods to be delivered at store or depot in Chicago, free of charge, but when shipped in car-load lots drayage to be charged.”

The contract was dated Movember 15, 1883. We construe the contract to mean that appellant had the option to take the pickles agreed to be delivered, from time to time, or all at one time, but that he was bound to take them before January 1, 1885. Appellee was bound to deliver them at the store, depot or on the cars, as appellant should elect, but he was not required to deliver until appellant had ordered the goods and designated the place of delivery. Mor was appellee required to tender the pickles or to offer to deliver them to appellant before the expiration of the contract in order to entitle him to maintain an action for the breach of the contract. The order in which the acts of the parties were to be done was fixed by the contract, and when such is the case, the one who is required to act first must act; must do what is required by the contract before the other can reasonably be expected or legally required to perform or to offer to perform. “If the delivery by the vendor is to take place upon the doing of certain acts by the purchaser, the vendor is not in default for nondelivery until notice of the purchaser of his performance of the acts on which the delivery is to take place.” Benj. on Sales, Sec. 679.

In a suit on the contract or for damages in failing to perform it, where delivery is to be at the option of, or on notice by, or at a place to be designated by the defendant, it is sufficient for the plaintiff to prove an ability and readiness to deliver or perform on his part upon notice or demand by the defendant. From the evidence in this record we learn that the acts of the parties under this contract, so far as they went in the performance of it, were in consonance with what we have found to be the legal meaning of it. It was the course of business for appellant to order from appellee the pickles as he wanted them and to designate the quantities of each kind, and the size of the packages, and the place where to be delivered, and for appellee to deliver in the quantities, particular packages and at the place designated, and from this course of business there does not appear to have been a departure, so far as the pickles were taken by appellant under the contract. It then appears that the parties, by their acts, construed the contract as the law construes it. Appellant was bound to notify appellee where to deliver the whole of the pickles before the contract expired and appellee is only bound to show that he filled all orders made upon him, and that he was ready and willing to fill the contract on his part, on receiving the order of appellant. Posey v. Scales, 55 Ind. 282; West v. Emmons, 5 Johns. 179.

In this view it is unnecessary to determine as to whether appellee, at different times before the expiration of the contract, requested appellant to take the pickles and offered to deliver them to him. Appellee was not required by the terms of the contract to make such request or offer, though there is in the record much evidence tending to show that appellee did make such requests and offers, and a finding to that effect by the court below would, we think, be fully warranted.

It is strenuously contended by appellant that the proof does not show an ability and readiness on the part of appellee to deliver the balance of the pickles during the last days of the contract. We have carefully examined the evidence on this point, and we have reached the conclusion that it fully sustains the finding of the court below in that regard. It was not necessary for appellee to show that he had actually in his possession on the last day of the contract sufficient pickles of the different grades to fill the contract. It was enough if, by purchase from other dealers, he had control of enough pickles to fill the contract. As to the amount of the damages assessed by the court, it appears that there is some conflict as to what was the market price for pickles after the first of January. Some of the witnesses make the market price higher than the price which the court must have taken as a basis in assessing the damages, but others of the witnesses placed the market price much lower. There is evidence which fully sustains the measure of damages adopted by the court, and we see no reason for disturbing the finding.

Appellant contends that as the record' stands, it shows that appellee was paid §1,000 more than the pickles he delivered would come to. Appellee in his testimony swears to the number of barrels of pickles delivered by him under the contract and swears that he was paid for those delivered, in full. The testimony as written in the record shows that in stating the amount of money he received he stated it at $1,862.69. This would be about $1,000 more than the pickles delivered would come to at contract price. Appellant, on being asked, stated that he could not dispute the account of appellee as to the number of barrels delivered, and there wasno pretense or suggestion by appellant or his counsel in the court below that he had in fact paid appellee more than the pickles delivered came to, and it is not contended here by his counsel that, as a matter of fact, a thousand dollars in excess was paid. The dispute was over the amount of damages for not taking the remainder of the pickles, and it is" very unlikely that if there had been an over-payment to the extent of a thousand dollars, it should have escaped the attention of all parties and the court. We think under such circumstances we are warranted in the conclusion that appellee made a mistake in uttering the amount paid to him,or that he was misreported. In speaking the words “ eight hundred” he was taken as saying “ eighteen hundred.” A case will not be reversed on a point which, from the whole record, we believe to be based at best on a mere slip of the tongue.

There is no error, and the judgment of the Superior Court must therefore be affirmed.

Judgment affirmed.