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    John Lemley, Impl’d, etc., v. The Golden Censer Co.
    1. Statement — Breach of covenant. — Appellant sold his house, lot and newspaper, with stoek, m iterial, good will, subscription list, etc., and covenanted not to establish or connect himself with any similar newspaper west of New York City for a year, nor at any time to interfere with the subscribers or subscription list of the newspaper sold. Appellant started a paper at Albany within the year, and took with him a subscription list of his former paper which, it was al'eged, he used to mail to many thousands of the subscribers a copy of his new paper, to the damage, etc. When the interest on a note given by the purchasers fell due, appellant was, it is alleged, informed by the bank of the promise of the purchasers to pay the interest on the note when produced. Accordingly he forwarded the note to the bank in Illinois, and the purchasers, commenced a suit of attachment against appellant, and summoned the bank as garnishee, and then filed a bill in equity claiming the right to have the note declared paid for the damages, etc.

      2. Same — Jurisdiction—Practice.—The court is of opinion that even if the statements in the bill were defectivo anl there was an adequate remedy at law, the proceedings on the part of appellant amounted to an abandonment of the objection as to jurisdiction until it was too late to renew it.
    3. Same — Question of bad faith. — When appellant was seeking within that jurisdiction to collect interest upon a negotiable note not yet due, it was the right of appellee to have the note itself produced as evidence that he wis the party entitled, and appellant can not complain that the means used to procure its production, even though they were deceptive, did him any wrong, because they did not induce liim to do what duty would not otherwise have demanded of him.
    4. Same — Failure of consideration of note. — The consideration of the note, whether it was the tangible proper:,y, good will and covenants all together, or any or either of them, was fully received, and the subsequent breach of the covenant on the part of appellant, with whatever damage to complain iiff, did not amount to or produce any failure of it.
    5. Damages from different causes — Burden of proof. — When the damage is occasioned by different causes from each of which there is more or less damage, if a portion of the d un ige is from causes for which the defendant is not liable, the burden of proof is on the plaintiff t.o show the damage from causes for which the defendant is liable as distinguished from the other causes. The court is of opinion that the finding as to the amount of the damages in this case was not sustained by the evidence. .
    Appeal from the Circuit Court of Winnebago county; the lion. Joseph M. Bailey, Judge, presiding.
    Opinion filed May 23, 1885.
    Mr. Wm. Lathrop and Mr. A. Taggart, for appellant;
    that a court of equity had no jurisdiction of the subject-matter of this suit, cited Taylor v. Turner, 87 Ill. 296; Wells v. Lammey, 88 Ill. 174; 2 Story Eq. Juris., § 794.
    As to failure of consideration: Gage v. Lewis, 68 Ill. 604; kerr on Fraud and Mistake, 88; Gallagher v. Brunel, 6 Gowen, 346; Willets v. Burgess, 34 Ill. 498.
    Keither a court of law or equity will take jurisdiction over property or persons in favor of those who have fraudulently induced the presence of the property or person within the jurisdiction of such court: Wanzer v. Bright, 52 Ill. 35; Kimball v. Custer, 73 Ill. 389; Townsend v. Smith, 47 Wis. 623; Drake on Attachments, Sec. 193; Pomeroy v. Palmer, 9 Iowa, 140; Dunlap v. Cody, 31 lowa, 260.

      As to damages: Just v. Greve, 13 Bradwell, 302; Walker v. Douglas, 70 Ill. 445.
    Mr. C. M. Brazee, for appellee;
    as to jurisdiction, cited High on Injunctions, §§ 55, 56; Edwards on Bills and Notes, 639; Farrington v. Frankport Bk., 24 Barb. 554.
    As to failure of consideration of note: Willard’s Equity, 303, 304, 359, 360; 2 Story’s Equity Jur., § 694; 3 Daniell’s Ch. Pr. 1755; Kerr on Fraud and Mistake, 355; High on Injunctions, § 709; Edwards on Bills and Notes, 679.
   Pleasants, P. J.

By an instrument under seal of Oct 6, 1877, appellant, in consideration of a certain sum to be paid in irregular installments, agreed to convey to Charles E. Mandeville and Olin R. Brouse, or their assigns, on the first day of November then next, by bills of sale and warranty deed or bond for a deed, as they should choose, the house and lot known as the office of “ The Golden Censer,” a weekly religous, but undenominational newspaper which he had established and conducted for ten years in the city of Rockford, together with the furniture, engine, presses, type and other machinery, stock and material appertaining thereto, and the subscription list and good will of said newspaper; with the understanding that they would transfer the same to an incorporated company as soon as it could be organized. A bill of sale of the personal property and rights so described was duly delivered according to the agreement, and on the 16th day of April, 1878 — the company having then been organized and invested by assignment with the interest of the covenantees, and all the purchase money paid excepting the last installment of three thousand dollars — he conveyed to it by warranty deed, at their request, the real estate mentioned, and took for said balance its promissory note, payable on or before the first day of May, 1S81, with annual interest at eight per cent, secured by trust deed of the same property.

By said agreement he also covenanted to remain as managing editor in name and fact, but for the benefit and under the direction of the covenantees, until May 1,1878, at a week-]y salary of twenty-five dollars, and that he would not establish or connect himself with any similar newspaper west of the city of Hew York for one year from that date, “nor at any time interfere with the subscribers or subscription list then turned over or thereafter belonging to ” the G-olden Censer.

He did so remain until the 22d of April, 1878, when he removed with his family to Albanv, H. Y., which is a few miles east of the meridian of Hew York City, taking with him, without the consent or knowledge of any officer of the Censer Co., a copy of its subscription list of April 13,1878, and there in the early part of December following issued the first number of a similar, though monthly paper, called<“ Zion’s Watchman.” About the same time he wrote to a few of these Censer subscribers earnestly asking their aid to promote the circulation of his newspaper, and to many more sent a sample copy of the first number of it.

Upon learning something of these facts, Mr. Brouse, in the interest of the Censer Go., of which he was president, went to Albany, and bn the 23d of that month, in Lemley’s absence, with an officer and a search warrant, took from his house the list referred to, upon which, on all the sheets but one, were check-marks against the names of many — according to his statement nearly two thousand in all — and upon that one, besides one check in Lemley’s handwriting, the words “ yet to be mailed.”

In the issues of the Censer of Dec. 21*t and 28fch were lengthy articles giving its version of the matter and denouncing appellant with great severity; and in January, 1879, Mandeville and Brouse preferred charges against him for larceny, embezzlement, lying and other misconduct, criminal and dishonorable, before the church of Albany of which he was then a member; whereof, upon a trial lasting through several weeks in February and March and conducted on their part by Brouse, who was a lawyer, he was acquitted by the conference. During this time other like articles appeared in that paper against him, and after his acquittal still others, which reflected also upon the integrity of the ecclesiastical court. Later in the year a pamphlet of considerable size was issued by the appellee, or by Mandeville and Bronse, to all its subscribers, reviewing the case and trial, and in November a supplement devoted to the same subject and addressed and sent to those who had ceased as well as those who continued to be subscribers, with a view to regaining and retaining their support. To these publications appellant replied in his paper, and among the patrons of the Censer, who were mainly of the Methodist denomination, there was a wide division in opinion and feeling as to the merits of the controversy.

Appellee claims that in December, 1878, its subscriptions had increased after the time of the transfer by Lemley, from ten to sixteen thousand ; that between that time and the first of May, 1879, about ten thousand expired, of which nearly eight thousand were not renewed ; and that notwithstanding the new subscriptions obtained during that period there was a net loss of nearly four thousand. It appears that subscriptions were taken for a year, for six months and for three months, payable in advance, and that unless expressly renewed the paper was discontinued at the close of the subscription term. The price was §1.25 for a year, and the profit on such subscriptions in excess of seven thousand (which was the number required to meet expenses), was about sixty cents each. What proportion of those thus discontinued were for a year and what for less is not shown.

In April, 1879, appellant sent to the Winnebago National Bank for collection a draft upon appellee for the year’s interest about to become due upon its note. The messenger who presented it to Mandeville, the secretary and treasurer of the company, understood from him that it would he paid upon presentation of the note and proof of Lemley’s ownership, and accordingly so reported. The vice-president of the bank then wrote to that effect to Lemley, who immediately forwarded it. Thereupon Mandeville and Bronse commenced a suit by attachment against him and summoned the bank as garnishee ; and afterward, on May 3, 1879, appellee filed the bill herein, charging the breach of his covenant in the article of October 6, 1877, by purloining the list of subscribers for the Censer, and using it to mail to many thousands of them a copy of the Watchman, to complainant’s damage, by loss of such subscribers, in an amount not then definitely known but averred to exceed that of the note ; and therefore claiming the right to have it “ declared paid, or as given - without consideration, or upon a consideration which has failed, and to have said trust deed also canceled and satisfied of record.” It prayed that an account be taken of the number of subscribers of the G-olden Censer that have subscribed to Zion’s Watchman in consen uetiee of the wrongful acts of the defendant, John Lemley, and that the amount of damage may be arrived at to which the complainant is entitled in consequence of the wrongful acts and doings of said John Lemley, and that it may be decreed * * * “that the consideration for which said note was given has fully and wholly failed,” and that said note and trust deed be canceled; and for an injunction to restrain the assignment of said note or its removal out of the county of Winnebago, and for general relief.

A preliminary injunction having been awarded and served on the bank, Lemley entered a special appearance and motion to dissolve said injunction for the reasons assigned, that it was granted without notice, that the bill did not state a case warranting injunction or other relief in equity, and that the court had no jurisdiction of the matter complained of; which motion, together with a general demurrer by the bank, was overruled on March 2, 1880. He then filed a separate answer denying the alleged breaches of covenant and thereupon again moved to dissolve the injunction ; which motion was on the 23d of October following also overruled. The bank having answered, admitting and explaining its possession of the note as aboved stated, replications were then filed and the cause referred to the master to take proofs; and upon final hearing on the pleadings and proofs, by depositions and oral evidence with the documents produced, on the 5th day of July, 1881, a decree was entered finding that by -reason of the deception and fraudulent and dishonest acts of the defendant, John Lemley the consideration for which said note and trust deed were given has wholly and totally failed as in said bill alleged, and that the complainant is not liable thereon,” and ordering that they be surrendered and canceled and the injunction made perpetual.

From this decree the defendant, Lemley, appealed, and here assigns errors covering all the points contended for in the argumen t.

First, that the court had no jurisdiction of the subject-matter; that the bill made only a case of damages for breach of contract by a defendant not averred to be insolvent, for which there is an adequate remedy at law.

This point was elaborately argued, but we think the appellant was not in condition to urge it. Where the subject-matter is not wholly foreign to equity this objection to its jurisdiction should be interposed in apt time and not afterward abandoned. Here the bill seeks the allowance of these damages by way of equitable recoupment, in order to extinguish and cancel a claim held by a non-resident, which is negotiable and secured by an instrument that is a cloud upon the title to real estate of the appellee. Appellant saw tit, after his first motion to dissolve the injunction on this ground was denied, to answer upon the merits without reserving the right .to insist upon the objection on the final hearing; and after the like motion upon this answer was denied, he took part in all the preparation for such hearing; and not until this had been done, on the 25th of February, 1884, did he amend his answer, upon leave then asked, by adding that “the defendant claims and insists that a court of equity has no jurisdiction of the subject-matter of this suit,” etc. He should not, in such a case, by answer waiving this question, put his adversary to the expense and trouble of taking testimony for a hearing upon the merits and then raise it at such hearing. We are of opinion that even if the statements in the bill were defective and there was an adequate remedy at law, these proceedings on his part amounted to an abandonment of the objection until it was too late to renew it. Stout v. Cook, 41 Ill. 448; Dodge v. Wright, 48 Id. 388; McGee v. McGee, 91 Id. 548.

It is also insisted that the court should have refused to entertain the bill, because of bad faith on the part of appellee in procuring the note to be brought within the county. But the promise to pay the interest on it when produced, which is the alleged act of bad faith, is denied by Mandeville, and whether the understanding of the bank’s messenger was justified by the language used is somewhat uncertain from his own testimony. Besides, when appellant was seeking within that jurisdiction to collect interest upon a negotiable note not yet due it was the right of appellee to have the note itself produced, as evidence that he was the party ent'tled. lie can not, therefore, complain that the means used to procure its production, even though they were deceptive, did him any wrong, because they did not induce him to do what duty would not otherwise have demanded of him.

The remaining points may all be considered under the question whether the proof warranted the finding of the decree, or the relief thereby granted.

At the date of the decree the amount due upon the note for principal and interest, according to its tenor, was $4,492.66; the decree found that the consideration for which it was given had wholly failed, and ordered that it be surrendered and canceled.

Technically speaking, this finding was erroneous.

By the agreement of Oct. 6, 1877, it was provided, after describing the property and rights to be transferred by Lemley and reciting a payment on account thereof of $4,000, as of that date, that Mandeville and Bronse were to pay $8,743 on July 15th, $2,000 on March 1st, and $3,000 on May 1st —all in 1878 — and an additional sum of $3,000, either in cash on said May 1, 1878, or partly or wholly in a note not having to exceed three years to run, with interest, etc., “ making in all the sum of $14,743 purchase money for said house and lot. and newspaper office, paper, ink, etc.” The note in question was given under the option thus allowed as to the last payment; and without further proof it would be understood that all of the property and covenants mentioned together constituted the consideration for the whole sum paid and to be paid, of which the note represen ted a part. Some attempt was made to prove that it was given specifically for the estimated value of the good will of the Censer newspaper, but with what success we need not consider*, since that actually passed to the purchasers. The bill itself makes no pretense that any item of the property agreed to be conveyed was not in existence, or not what it was represented to be, or not in fact transferí d to and fully received by Mandeville and Brouse or their assignee, the complainant, or has since been lost through any defect of title. The contrary is expressly stated. The complaint made is that after all of it had been transferred in full compliance with the agreement in that behalf, and while all that had not been consumed by use alter such transfer was in the actual possession and enjoyment of complainant, the defendant, in violation of his covenant not to interfere with them, alienated a portion of its subscribers. And really, notwithstanding what is therein said about failure of consideration, the bill does not present the damages by this breach of covenant as a defense to the note, but as a distinct counter-claim which ought in equity to be applied upon it —so distinct that by an amendment made to the prayer it asks a money decree for the excess of such damage over the amount of the note.

In the argument filed in this court, however, counsel for appellee claims that the taking by appellant of a copy of the subscription list was a total deprivation of the good will, and that as the copy taken was of the list of April 13th and taken at that time while the note was delivered on the 19th, there was not only á failure * * * but an absolute want of consideration ” for it.

There is a distinction between a failure and a want of consideration. Either negatives the other. Both can not be in any case. In this there was neither, for, overlooking the assumption that the good will was the sole consideration it appears, first, that the obligation to give a note of this tenor (in default of payment of the cash on May 1, 1878, w- ich occurred) became fixed on the first of November, 1877, and hence its date or the time of its delivery is here immaterial; second, that on the 13th of April, 1878, this good will had been fully possessed and enjoyed by the covenantees or their assignee, the complainant, without interference by appellant, from the first of November preceding, as is shown by the increase of the subscription list during that period from ten to thirteen thousand, according to the bill; and third, that the talcing of the copy list on April 13th did not wholly deprive complainant of this good will, as is shown by the further increase of subscribers from that time until December following from thirteen to sixteen thousand, according to the bill. In the nature of things the mere taking of a copy list, however surreptitiously and with whatever purpose, could do no injury to complainant; and no injurious use of it is claimed to have been made until the fall or winter following the delivery of the note.

And if the covenant itself was the consideration, that too inured and still inures to the benefit of the covenantees or their assignee — being a subsisting obligation, for the breach of which adequate compensation in damages is recoverable. Willetts v. Burgess, 34 Ill. 498; Gage v. Lewis, 68, Id. 604.

So, then, the consideration of the note, whether it was the tangible property, good will and covenants, all together, or any, or either of them, was fully received; and that thesnbsoqnenti breach of the covenant on the part of appellant, with whatever damage to complainant, did not amount to or produce any failure of it seems clear upon reason and fully settled by the case of Gage v. Lewis, supra> and the authorities there cited. We therefore think this finding of the decree is unsupported.

But this is mainly a question of legal nomenclature, the determination of which does not necessarily involve the merits of the case. From a carefully prepared opinion of the chancellor, filed in the cause and incorporated in the brief of counsel, we learn that the decree was really based on what he thought “ the fair inference to be drawn from all the evidence,” viz., “ that there remains an amount of damages resulting to the complainant from the breach by Lemley of the covenant of his agreement which * * * equals at least the amount of the note;” and we have given so much space to the idea of a total failure of consideration upon an apprehension that, with the further idea of finding, not definitely the actual amount of damage sustained, but whether it was not at least equal to the amount of the note, it may have contributed to make the issues between the parties and the limits of legitimate inference less distinct than they otherwise would have been in the mind of the court.

The case against appellant, as made by the bill, is breach of covenant, to complainant’s actual damage, measurable in money. This is a strictly legal claim. The fact that this claim, because of certain incidents not necessarily connected with it, is prosecuted in equity with a view to modes of relief administered only there, does not entitle the claimant to any greater indulgence in respect to the kind and measure of pi*oof to be made or presumptions to be indulged from facts proved, than would be ¡granted in a court of law. The breaches assigned are limited to the sending by appellant to subscribers for the Censer of a sample copy of the Watchman; the damage alleged is limited to the loss of these subscribers; and the finding is in the nature of a verdict for the claimant for the amount of the note and interest — in round numbers, 84,500.

Conceding that there was a breach in the manner charged, and also for present purposes the jurisdiction of the court, upon sufficient proof, to make the decree, the question is whether this finding as to the amount of the damages is supported by evidence.

A contract of this character may be broken times and ways without number and yet also without actual damage, because the “ interference,” in all the various forms it may take, may be ineffectual; and though from a breach alone law and equity alike will conclusively presume nominal damage, neither will award more without sufficient proof of it.

Upon the question of actual damage the record presents a large amount of testimony, from many witnesses, all of which is very unsatisfactory from its uncertainty as a basis for computing or estimating, or even conjecturing the amount. Ho attempt was made to take and state an account of the number of subscribers alienated or of the damage resulting, as was asked by the bill, nor was the slightest attention paid to the prayer for a money decree for any excess over the note. It is not pretended that any definite number or amount was ascertained, nor that an amount at least equal to that of the note was definitely shown. To reach that conclusion resort must be had to presumption upon presumption, or inference upon inference, if not to suspicion upon suspicion.

We can not go over this mass of matter in detail, but only present some general views without attempting to be more precise or particular than may be necessary to show the reason for our conclusion.

From the testimony on the part of complainant, considered by itself and with all reasonable liberality, it would appear that the subscribers for the Censer steadily grew in number under the management of appellant from the date of its establishment until he sold it some ten years thereafter on the first of November, 1877, when there were about ten thousand; that they continued to increase after such sale while he remained as managing -editor, until April 13, 1878, when they had come to be thirteen thousand; and still afterward, under the new management, until December, 1878, when there were sixteen thousand. About that time appellants issued the first number of the Watchman, at Albany, N. Y., and sent a sample copy to each of many persons named in the Censer’s subscription list of April 13, 1878. If the check-marks found on this list and the words “yet to be mailed” on one sheet be accepted as sufficient to show that he had mailed a copy to the persons respectively whose names were so checked, and the number checked was about two thousand, these are all that any evidence in the record tends to show he thus “interfered ” with. It is true that to some persons and post-offices he sent several copies in one wrapper, but if they were to be distributed to parties named in the list their names would be checked as if the copy had been sent to each directly, the only object of the check being to indicate the persons supplied, whether directly or indirectly. A fexv copies were also found in the hands of persons whose names were on the list but not checked. It is to be presumed for the reason just given that these were either accidentally omitted, and therefore very few, or were received from parties other than the appellant. He had friends, not subscribers for the Censer, who took a warm interest in establishing the Watchman. For their acts in taking a number of copies and distributing them on their own motion appellant should not be charged, although some of them may thus have come to the hands of Censer subscribers. It is true also that he wrote to nine of these subscribers, whom he doubtless regarded as among his warmest personal friends, earnestly asking their aid in getting subscriptions for his new paper. If they worked among the patrons of the Censer, and might reasonably have been expected to do so, to that extent he may be chargeable; but if the names thus procured were reported before t'.ie list was seized, and appellant knew them to be on it, they also for the same reason would be checked. Allowing the full force of these facts, the number interfered with by Lemley, or with his consent or knowledge, is substantially limited by the check-marks.

This accords with other facts established in the case. Thus the printer shows that only 4,800 copies of the first number were printed, and Bronse found a pile on hand when he got the list on December 23, 1878, which he estimated at not less than two thousand; so that no more than 2.800 had been distributed, of which it appears that many were sent to persons not named on the list.

Between the first day of December, 1878, and of May, 1879, ten thousand subscriptions for the Censer expired, of which only a little over two thousand were renewed, and on the third day of the month last mentioned the bill herein was filed.

How there is no positive proof that any declined to renew their subscriptions because of Lemley’s interference, nor any circumstances tending to show it, except the increase of the list until December, IS78, and its decrease thereafter, accompanying and following the establishment of the new paper, and his proceedings in that connection as above stated. This is the sum and utmost strength of appellee’s case upon its own showing, although it had within its power, in the name and address of every subscriber lost and retained, the means of making full and definite proof.

Unless, therefore, from the facts that appellant “interfered” with two thousand, and eight thousand did not renew, the court may find, as from legitimate and sufficient evidence, that the two thousand'was included in the eight thousand, that he also interfered with the other six thousand (for asan inference or presumption from declension alone, which is all that is proved respecting them, it must apply alike to each,-and therefore to all or none), and that his interference was in each case effectual to cause the declension — to say nothing of the uncertainty as to the terms for which they had subscribed — it is left without data for a computation or estimate, and to the merest conjecture of the amount of damage sustained, except as to the two thousand.

In respect to so many as were fairly shown to have been interfered with and to have declined to renew when their current term expired, it might be presumed against a willful covenant breaker, until the contrary appeared, that his interference was effectual; but to cast upon him the burden of proving the negative as to those not shown to have been interfered with, otherwise than as an inference or presumption from the fact of their declension, would seem to be unreasonable, since he could not know who were intended by the six thousand unnamed. We think the burden of proof was upon the party alleging the interference as much in respect to the six thousand as to the two thousand, and that as to them the presumption is not legally warranted by the facts stated.

Then as to the -two thousand, the evidence of the checkmirks, which is alone relied on to fix the number, is altogether uncertain ; for, granting their, significance and number tobe what appellee claims, it is to be observed that they were against the names of persons who were on the subscription list of April 13, 1378, and the evidence shows that subscriptions expired and the list was corrected every week, dropping the names of such as failed to renew and adding those of new subscribers. How many expired between that date and the second week of December following — how many of the thirteen thousand embraced in the whole list, or of the two thousand checked, were included in the sixteen thousand composing the list when the interference took pl&ce — the testimony affords no means of determining even approximately. But if ten sixteenths expired between the first of December, 1878, and the first of May, 1879 — a period of five months — as Brouse testifies, it is safe to presume that a good many also expired during the period of eight months, from April to December, 1878; and the number or proportion of renewals is purely conjectural.

Passing from the number interfered with to the effect of such interference, the evidence on the part of appellee leaves the amount of damage no less uncertain except as it is materially reduced.

It called as witnesses a dozen ”or more of its subscribers who had received — mostly from an uncertain source, by mail or otherwise — or knew of a few others who had thus received a sample copy of the first number of the Watchman. From these witnesses selected by appellee, speaking of themselves and others of whom they professed to have the knowledge, it is learned that of these recipients some continued to take the Censer and did "not take the Watchman, and some took the Watchman but continued to take the Censer also. Mr. Brouse himself testifies that of the nine to whom Lemley is shown to have addressed by letter the most earnest appeals for aid in getting the Watchman into circulation, all but one, or two at most, continued to take the Censer.

If from these facts it be admissible to infer the number or proportion of those interfered with who were thereby induced to drop it, we should say it was small. Just how small is quite uncertain, but not more so than are the inferences from other facts on which appellee must rely to sustain this decree. It is entitled to be considered as of some effect to rebut inferences and presumptions of like character which were claimed and appear to have been allowed on the other side.

It is asked, how else than on appellee’s theory is so great a falling off of Censer subscribers, about the time and immediately after these sample copies of the Watchman were sent out, to be reasonably accounted for?

Assuming the accuracy of Mr. Brouse’s figures this falling off was indeed great and the inquiry is a natural one. An answer, at least in part, is to he found in two prominent facts presented by the record.

According to uniform experience, from the establishment of the Censer a large proportion of the subscriptions were allowed to expire at the close of the term first subscribed for; Lemley says from a third to a half, and Mandeville that “ at the end of the year there are great changes in the names on the subscription list — many old subscribers do not renew.” This occurs without any special dissatisfaction or interference. It is probably due in large part to the rules of the office, which admit of subscriptions for short terms and require payment in advance and the discontinuance of the paper unless the subscription is expressly renewed. When their terms expire some are sick, some absent from home, some so engrossed in business as to forget it, and some are indifferent, having subscribed mainly to get rid of solicitation; and where the paper has ceased to come for a time many lack the active interest to subscribe again. The time of this great falling off included the two periods of the close of the fiscal year and of the volume, when the largest number of subscriptions expired and the largest proportion of failures to renew is expected. If these causes reasonably account for a thousand of these failures, appellant should not be held responsible for them even though it appeared that his interference was the cause of some others.

The other fact referred to is the use by appellee of so much space in denunciation of appellant and disparaging reflection upon the conference that acquitted him, in almost every number of the paper for months from and after the 21st of December, 1878. It had been singularly free from personalities and matter of merely individual concern, and given up to news of general interest and religious information or instruction. The controversy with appellant was about a purely private and business transaction to which the subscribers were strangers. Appellee or iD managers began it both in the paper and in the church. Their publications in the prosecntion of it, making so wide a departure from the policy and tone previously held by the Censer, were calculated to dissatisfy and alienate some of all classes of its patrons. Those who were attached to appellant from personal acquaintance or by relations established through the paper under his management, would resent them as unjust imputations against his character. Others, indifferent to him but zealous for the Methodist church, would be offended by the reflections upon the conference. Still others, indifferent both to him and to that branch of the church, might well regard as an impertinence the presentation to such an extent of such a subject, to the exclusion of worthier matter which they had a right to expect; and all might lament and condemn in a professedly religious paper the spirit exhibited in the articles published.

That they did in fact alienate a large number admits of no doubt. The effect was confined to no locality or church denomination. Mr. Brouse says “ the fight came up when we first published the facts against Mr. Lemley and lie replied in his paper;” “ there was a vast difference of opinion as to who told the truth — Mr. Lemley or us — all over the country “ to give you all places where antagonisms arose I would have to have the list before me and read two thirds of the post offices; we made a very general fight over the United States and Canada ; it reached to England, Ireland and Scotland.” lie thinks their rejoinder of two pages to Lemley’s reply “would have settled it if the church had expelled him.” “ Ho doubt if the church had done its fair duty that would have settled it forever.” But the church did not expel him. Thereupon untaught by experience, they assailed the church or its conference, and so increased the dissatisfaction. He gives the name of one place — Plattsville, Wisconsin — where “they had a large list,” which “ was cut down two thirds ” — an extreme case, but illustrating the general effect. “ We thought a good many held in abeyance until after the church trial, as to whether they would subscribe or not. They went back on us.”

When therefore he says, as does Mandeville also, that he knows of no reason for the great falling off of subscribers in the winter of 1878-9 except the wrongful acts of appellant complained of, he must be understood as referring to the remote and not to the proximate cause. And this seems to be the idea of counsel, who insists that these publications in the Censer contained only the truth and were the “natural and necessary” consequences of appellant’s misconduct; and that therefore he alone is responsible for them and for their effect on others.

We can not concur in this view. If Lemley wronged Mandeville and Brouse or appellee in a private business transaction the proper resort was to a court of justice. Certainly it was not necessary to parade their views of the controversy in the paper to its subscribers who liad no interest in it; and from the judgment of said subscribers or any portion of them that this course was not in accordance with good morals, good manners or good business sense, we are not disposed to dissent. There was no excuse for it, to. them, but a custom which we think altogether bad. The subscribers did not drop off because Lemley wronged appellee, but because appellee abused the subscribers.

It is also gravely argued that being a religious newspaper there was a special right and duty on the part of the Censer to denounce what it believed to be sin. But this can not include a right to assume that a particular individual is a sinner in respect to a matter of private business with the editors or proprietors and thereupon to denounce him; and if it did, they must exercise or perform it at their own risk of its effect upon their patrons.

It is said that the evidence of the number of persons who discontinued the paper for this cause “is meager and unsatisfactory, and the court will not readily indulge in presumptions in favor of a party shown to be guilty of such manifest and intentional violations of his covenants as are shown in this case.” And this is quite true. The extent of the defection on this account is left so uncertain as to be fairly considered conjectural. But the same is also true of the cause alleged in the bill. Here are shown a certain amount of defection and several distinct causes for it. The existence, operation and substantial effect of each are alike proved by complainant’s own testimony, and the portion due to each or to either is alike uncertain. Now, if from the nature of the case it were impossible to distinguish the particular portion, or to ascertain the proportion of the combined or common effect that is due to the cause alleged against the appellant, of course the law would not require it, but would leave it to the jury or court to estimate it as nearly as they could from the evidence. C. & N. W. Ry. Co. v. Hoag, 90 Ill. 346; Ogden v. Lucas, 48 Id, 494. Nevertheless he is liable only for the damage due to that cause, and the evidence should furnish the basis for a rational estimate and not a mere guess. In Priest v. Nicholds, 116 Mass. 401, where plaintiff’s wool, stored in the basement and on the first floor of the building, was damaged in part by waste water from pipes which the defendant, occupying the floor above, negligently suffered to be out of repair, and in part by back water from the street sewer at high tide, the Supreme Court approved the following instruction: “That when the damage was occasioned by different causes, from each of which there was more or less damage to the plaintiff’s wool, if a portion of the damage was from causes for which the defendant was not liable, as from the tide water, the burden of proof was on the plaintiff to show the damage to the wool from causes for which the defendant is liable, as distinguished from the other causes; and for this damage only could the plaintiff recover.”

The case at bar was of a different character. Appellee recognized this in its prayer for an account of the number of subscribers lost through the wrongful act charged against appellant. It had the name and address of every one that was lost through whatever cause, and therefore the means of distinguishing the damage from this cause with reasonable certainty. If it would be tedious and expensive to make this proof, the difficulty is inherent in the nature of the covenant, which it voluntarily accepted with its infirmity, and appellee must contend with it as best he can. Certainly in such a case, the rule declared in Priest v. Nicholds should apply. Yet from the amount allowed it would seem that it was here reversed; that the defendant was held prima facie responsible for the loss of all subscribers that were lost, and the burden was thrown upon him to show how much and what was due to other causes than that alleged against him.

It appears to us, then, that the evidence for appellee furnishes but little data for anything more than conjecture as to how many were the persons to whom appellant sent a sample copy of the Watchman, or how many of those to whom it "was so sent were then subscribers for the Censer, or how many of such as were subscribers and received such copy declined to •renew' their subscriptions, or how many of those who did decline did so for the cause alleged in the bill.

We do not propose to extend this opinion — already so much longer than the writer would wish — -by comments upon the testimony for appellant, further than to say that it does not relieve the case of this uncertainty touching the question of damages, and does tend to show that the amount allowed against him is at least excessive.

His use of the list, which is the only breach of his covenant charged", must have ceased wdien it was taken from him, Dec. 23, 1878, and no other or further “interference” is alleged or proved. Between the date of his mailing the first copy of the new paper and the commencement of this suit less than eight thousand expiring subscriptions were unrenewed, and the damages allowed equaled the entire profits on seven thousand five hundred for one year. That appellant in so short a time alienated all these by the simple means of a sample copy of the Watchman sent to one fourth of the number, is most improbable in itself and clearly contrary to the proof respecting the effect of other causes. Appellees themselves would hardly concede so much to his personal influence or to the comparative merit of his paper. But it is said, and the circuit court held, that they should be allowed for damages to be thereafter sustained as well as for all that had accrued.

While this admits that they had not then sustained damages to that amount, it does not relieve the uncertainty' of the proof as to the amount they had sustained, but widens still further the field of conjecture. It may be that in taking the account of damages the court should, include the effect of all breaches prior to the decree, but we conceive that in looking for the effect of a particular breach it could not properly go beyond the subscription term next succeeding the one current at the time of such breach. It could not properly hold all defections occurring thereafter attributable to Lemley’s acts in December, 1878, nor charge him in this suit with the effect of breaches subsequent to the decree. The subscriptions being for a limited term, it can not be presumed that they, would have been continued indefinitely in the absence of any alleged cause of discontinuance, and the interference here charged or shown was not in its nature a permanent cause of defection.

For these reasons we hold that the finding as to the amount of the damages was not sustained by legitimate evidence. The decree will therefore be reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    George Lutz and Julius P. W. Reck, Adm’r etc., v. John Schmidt.
    Debt on appeal bond — Misjoinder.—In an action of debt on an appeal bond, it is improper to sue the administrator of the deceased obligor jointly with the survivor. Such misjoinder is fatal on error.
    Appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed May 23, 1885.
    Mr. L. W. Brewer, for appellants.
    Messrs. Snow & Stead and Mr. D. A. Cook, for appellee.
   Pleasants, P. J.

Debt on an appeal bond executed by appellant Lutz as principal and Anton Reck as surety, in a proceeding for forcible entry and detainer. Upon trial by the court without a jury the issue was found for the plaintiff and his damages assessed at $321.21, upon which judgment was rendered against the defendants jointly, in debt for the penalty, to be discharged on payment of the damages in due course of administration.

We see no great force in the points here urged on behalf of appellants; but in the like case of Eggleston v. Buck, 31 Ill. 254, it was held improper to sue the administrator of the deceased obligor jointly with the survivor; that no good judgment could be rendered for the plaintiff therein, because one of the defendants was chargeable de bonispropriis and the other only de bonis testatoris, and that the misjoinder was fatal on error, citing 1 Ch. Pl. 50.

For that reason the judgment here will be reversed and the cause remanded.

Reversed and remanded.


text:
    Gustave Koch v. Mary Heideman.
    1. Slander. — Cass for slander where the words charged, without colloquium or allegation of special damages, were in German, and spoken of a married woman translated, “ She has been lying on the lounge with a male boarder.” Held, that the words are not actionable per se at common law; that they do not, under R. S. Ch. 126, § 1, “ amount” to a charge of fornifieation or adultery.
    2. Instruction. — The instruction given in this case is erroneous; for unless the words of their own force or oy reason of special circumstances proved, amounted to a charge of adultery, appellant is not liable, no matter how great the public disgrace into which appellee may have been brought by them.
    Appeal from the City Court of Elgin; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed May 23, 1885.

      Mr. James Coleman, for appellant;
    cited Patterson v. Edwards, 2 Gilm. 720.
    Messrs. Joslyn & Joslyn, for appellees;
    cited Elam v. Badger, 23 Ill. 498.
   Pleasants, P. J.

Case for slander, brought by appellee against appellant. The words charged, without colloquium or allegation of special damages, are in the German language these: “ Sie hat onit dem Kostganger au,f dev Launsehes gelegen” which are averred to be when translated into English: “She has been laying on the lounge with a male boarder” — inuendo, that she had been guilty of adultery — and were understood by the hearers. Upon issue joined on a plea of not guilty there was atrial by jury and a verdict for plaintiff for $500. Motions by defendant in arrest of judgment and for a new trial having been successively overruled and judgment upon the verdict entered, he took an appeal.

The evidence shows that appellee was a married woman whose husband kept a boarding house, in the common sitting room of which was a small and narrow lounge; that she was a member of St. Paul’s German Church of Elgin, of which appellant was the minister; that on Sunday, the 26th of March, 1882, after the usual services, the words charged were read by him to the assembled congregation from a manuscript setting forth the reasons for tendering his resignation, for many of which he said she was responsible; that among these was her insistance upon his investigating divers derogatory statements she reported as having been made respecting members of the church, but which he declined to do for the reasons read that they were idle rumors, not generally known nor worthy of attention, and for the further reason that if he should undertake to investigate them he must include a like rumor he had heard about her, which was that “ Sie hat onit dem Kostganger auf der Launsehes gelegen

All the witnesses agree that these were the words spoken; that their correct translation is “She was laying (lying) on the lounge with a boarder,” and that the word “ Kostganger” translated boarder,” is of the masculine gender. They further agree in saying he did not charge her with adultery— that the words do not import that she had sexual intercourse with the boarder; but neither of them stated nor was either asked what, if anything more than is conveyed by the translation given, they do amount m in their common acceptation, nor how they were understood, except perhaps her husband, who swore “ he did not say she was s bad woman, did not say she committed adultery, did not say she was a lewd woman; he said she was on the lounge with a man boarder,” and then added, “ that means she was bad, don’t it? ”

The words charged are not fer se actionable at common law, and since no special damage is alleged or proved, this suit could be maintained, if at all, only under the provisions of the statute which declares that “ if any person shall falsely use, utter or publish words which in their common acceptation shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.” R. S. 1874, Ch. 126, Sec. 1.

Where the words complained of are of themselves clearly within the statute of course no evidence in chief is required to prove their meaning. Where they may be within it, but yet are capable as well of bearing an innocent construction, the circumstances relied on to fix the meaning charged should be averred in a colloquium and shown by the proof; and in such case, under the general issue, it is for the jury to determine from the evidence the sense in which they were used and understood. After a verdict for the plaintiff, where that question has been submitted, it will be presumed that they found it to be the one charged. But whether such finding is supported by the evidence is a question for the court upon a motion for a new trial as in other cases; and where the record shows, notwithstanding such finding, that they are not within the statute, advantage may be taken of it, as appellant sought aud seeks to do here — by motion in arrest of judgment, or by appeal or writ of error. 2 Green, on Ev., Sec. 411 and notes; Heard on Libe and Slander, Ch. XVII, Sec. 157, et seq.; Shattuck v. Allen, 4 Gray, 546; Goodrich v. Davis, 1 Mass. 173.

The first question, then, is whether the words here complained of are of themselves within the statute.

As has been seen, it embraces only such as “amount to ” charge fornication or adultery. If they fall short of this they are not within its terms, and no reason is perceived for holding that its spirit is more comprehensive.

It is not essential, however, that they should charge it directly. Prima facie it is enough that they import some other act, fact or circumstance which with reasonable certainty implies it. Thus, to say of an unmarried woman that she has given birth to a child “ amounts” or comes fully up to a charge of fornication; for it necessarily implies sexual intercourse, and though it may have been against her will, that is a possibility too remote to be considered. The inference of her consent would be well nigh universal and reasonably certain.

But it is not enough that they import only a fact which, though competent and weighty as evidence tending to prove adultery or fornication, does not thus certainly imply it. They must “ amount,” in their common acceptation, to another way of stating that the person spoken of has actually committed it, so as to require a good plea of justification to aver it directly. If not, a plea averring the truth of the fact, as broadly as the words of themselves import it, would be good; for the inuendo can not enlarge the real meaning. And thus, to a declaration charging the imputation of adultery, we might have a good plea of justification maintained consistently with full proof that adultery had not been committed.

Here the words complained of are proper German words, well understood by all who understand the German language, and it does not appear that in their common acceptation they import anything more than is signified to an English speaking hearer by the translation given. They do not amount to a direct char-re of adultery. To say of appellee, a married woman, that “ she lay with a man boarder,” perhaps, would amount to it, but that “ she was lying on the lounge with a man boarder ” clearly does not. The verbal difference may be slight, bnt in common nse and understanding a clear distinction is recognized. The latter import only a fact which, though very discreditable to appellee, may be quite distinct from an act of adultery and does not “ necessarily,” as the Supreme Court say in Edwards v. Patterson, 2 Gilm. 723-4, or with reasonable certainty imply it — a fact which admits of proof to the full extent stated in entire consistence with further proof that adultery was not committed in any connection with it, as cause, concomitant or sequence. The statement of it, therefore, can not of itself amount to a charge of adultery, and since nothing further is averred or shown to give it a broader or different meaning in this case, the judgment should have been arrested. And if, though not of themselves bearing the meaning imputed by the inuendo, they were under any circumstance capable of it, and the jury found that in this case they did, their finding should have been set aside as wholly unsupported by evidence.

But it is far from being clear that they did so find, since they were instructed, as asked by appellee, “ that if they believed from the evidence that the defendant spoke the language charged in the declaration, yet, (then) although they may believe from the evidence that the defendant gave the author of such language, or stated that he had heard it spoken, he is liable if the jury believe that such language brought the plaintiff into public disgrace.”

Unless the words, of their own force or by reason of special circumstances proved, amounted to charge her with adultery, he was not liable, under this declaration, however great the public disgrace into which she may have been brought by them. This instruction was therefore erroneous.

For the errors above indicated the judgment will be reversed and the cause remanded.

Beversed and remanded.


text:
    City of Elgin v. Melissa Welch.
    1. Injury from water — Dub to various causes — Province of jury. — Where a city is liable for certain damages from the water set hack by a sidewalk, but is not liable for dam iges done by drainage in its natural course from other quarters, or by percolation, and the former damage can not be ascertained with certainty, it is the province of the jury to estimate, as best they can from the evidence, how much of the whole amount was occasioned from the sidew ilk, but it is not proper to include any portion of that amount that was due to the o.lier causes whether operating independently of or in conjunction with it.
    2. Burden of proof. — When the nature of the case admits of it the burden of distinguishing by proof the amount due to the cause alleged, and for which the defendant is responsible, from that due to other causes, is upon the plaintiff.
    Error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed May 23, 1885.
    Mr. R. S. Egan and Mr. J. W. Ranstead, for plaintiff in error;
    as to the non-liability of the city if the acts were done before plaintiff’s purchase, cited Laney v. Jasper, 39 Ill. 46; I. C. R. R. Co. v. Allen, 39 Ill. 205; T. W. & W. R. R. Co. v. Hunter, 50 Ill. 325; Cooper v. Randall, 59 Ill. 321; C. & A. R. R. Co. v. Maher, 91 Ill. 312; Decatur Gas Light Co. v. Howell, 92 Ill. 19; C. & E. I. R. R. Co. v. Loeb, Chicago Legal News, April 5, 1884; Adams v. Hastings, etc., 20 Minn. 59; Fowle v. N. H. & N. R. R. Co., 112 Mass. 334; Troy v. Cheshire R. R. Co., 3 Foster (N. H.), 83; Powers v. City of Council Bluffs, 45 Ia. 652; Kansas R. R. Co. v. Mihlman, 17 Kans. 224; Elizabeth R. R. Co. v. Combs, 10 Bush (Ky.), 382.
    Mr. R. N. Botsford, for defendant in error;
    that if an injury is caused by the imperfect construction of an embankment or hazardous experiments or negligence in maintaining it, an action lies, cited Cahill v. Eastman, 18 Minn. 324; Porter v. Pequonnoc M’f’g Co., 17 Conn. 249; Gray v. Harris, 107 Mass. 492.
    As to instructions: W. St. L. & P. Ry. Co. v. Rector, 104 Ill. 296; Chicago P’k’g Co. v. Tilton, 87 Ill. 547; C. I. F. Co. v. Bradley, 10 Bradwell, 328.
   Pleasants, P. J.

This was an action on the case brought by the defendant in error to recover damages for the flooding of her premises in the city, alleged to have been caused- by improper grading of Gifford street, and construction of sewers, ditches, embankments and sidewalks thereon. She obtained a verdict for $400, but remitted $150, whereupon the court overruled defendant’s motion for a new trial and entered judgment for plaintiff for $250.

Gifford street, running north and south, is crossed at right angles, in order from the north, by North, Division and Chicago. Plaintiff’s premises front five rods on it, and seven and one tenth on Division, being on the southwest corner of those streets.

In 1818 Jonathan Force bought a tract, of one and a quarter acres, including the premises, and lived on it until 1885. In 1870 he sold the lot in question to Elnathan Welch, who built the house on it, and in 1878 sold to his brother, the husband of plaintiff, and he conveyed to her on the 8th of November, 1881.

It was lower than any of the land immediately about it, forming the natural basin for the drainage from three or four acres. For some years after the streets were laid out a considerable quantity of surface water used to come from the northeast to Division street, and flow west on its north side, and then northwest across the corner of the lot diagonally opposite plaintiff’s, to Gifford, then north on the east side of Gifford a distance of six or eight rods, to the.foot of a hill, where it crossed the street under a sluice-way, to the block on the west known as the Borden lot, and then generally sank away, evaporated, or passed on northwest. About the year 1854 this sluice-way was hurled up by the grading down of the hill, and then the watei would back up south over Gifford and Division streets, upon the plaintiff’s lots. These streets were afterward graded up at and about their crossing, which caused the water again to flow, when high enough, along its old course over Gifford to the Borden lot. The owner of that lot, for its protection, threw up a sidewalk along its east line; and this being washed out, he then, by permission of the city authorities, rebuilt it of gravel, and put on six or eight inches more of concrete, which raised it above the street at that point, and so again set the water in time of freshet back upon the plaintiff.

This rebuilding was done in the spring of 1882, after she became tlie owner of the premises in question. But meanwhile, and before she purchased, the other two lots about them had been more or less raised. Plaintiff’s also had been tilled up on the front by her husband when he owned it, which protected it to some extent until Division street was raised and the sidewalk east of the Borden lot made higher. In raising Gifford and Division streets ditches were left on the side next to and in front of her lot — the whole length of it on Gifford, and about half on Division; and all the work on Gifford, which only is complained of in the declaration, except the rebuilding of said sidewalk along the Borden block, was completed in September, 1881, two months before she made her purchase.

This work was, in our opinion, of a character so fixed and permanent, that for any damage thereby caused to plaintiff’s lot, at any time, independently of what was done or permitted by the city on that street after her purchase, it would not be liable to her. The right of action for such damage was in the party who owned the lot when the work was done, and did not pass to his grantee. Chicago and Alton R. R. v. Maher, 91 Ill. 312; Decatur Gas Light and Coke Co. v. Howell, 92 Id. 19, 20; I. C. R. R. Co. v. Allen, 39 Id. 205; Laney v. Jasper, Ibid. p. 53; T. W. & W. R. R. Co. v. Hunter, 50 Id. 325; Chicago & Eastern R. R. Co. v. Loeb (opinion filed at Ottawa, March 26, 1884).

It is said, however, that no such damage was claimed, shown ol* recovered; that the rebuilding and raising of the sidewalk along the east line of the Borden lot is the gravamen of the complaint and all tlie damage shown the direct and proximate effect of that structure.

We think there is evidence in the record tending to show that some was caused by surface water from the lands south and west of plaintiff’s lot, and some by percolation from the ditches, of water that was not backed up into them by the concrete sidewalk. ■

Jonathan Force says: “The Welch lot was the natural sink for about three acres of land, and is now,” Frank Preston says: “ I purchased one of the Force lots just south of Welch’s; put in 300 or 400 loads of gravel. * * * A large part of the water which comes down to Division street comes from up my way.” E. H. Welch, the husband of plaintiff, says: “Gifford street was graded in 18S1. This was just before the property was deeded to my wife. It was in September, 1881. I told Martin, the street commissioner, when he did the work, that any one could see with the naked eye that he was leaving a soakage there, and that he might just as well fix a ditch from it into the premises for it would soak right through into my cellar. When the water came into the excavation in front of my premises it would soak through into my ba-ement and keep us busy dipping it out.” This was before the concrete walk was built or contemplated. Again he says: “ When the concrete walk was raised it was made six or eight inches higher than before. Before that was raised we had a little water come in the lot, but not much; it was worse after that.” And the plaintiff herself, speaking of the flooding of July, 1882, and which she says was the first trouble she had with water on her premises, testifies: “ It rained hard, very hard, in the afternoon. * * * The surface waiter came from north of Gifford street, down Division street, and some from Chicago street.” Chicago street is the east and west street next south of her lot. Again she says: “ It never troubled us until they left that ditch in front of our house. That would stand full of water which soaked into the basement.”

The foregoing is all taken from the evidence introduced on the part of the plaintiff. It appears by all the witnesses on both sides, so far as they have known it, that from the first through all the changes made in the surrounding lots and in the street; and sidewalks, it has been subject to floodingabont as since plaintiff owned it. Force abandoned the attempt to cultivate it for that reason. Her husband says: 661 bought the lot in 1878 from my brother Elnafchan. There was a house on it then, built by my brother. He had filled in around the walls to turn the water off, After I bought it I graded and filled in until I got discouraged. I found there was so much water coming in that there was no use to try and protect the house.”

The flooding proved occurred in the spring of 1882 (hut the witness, E. H. Welch, does not state whether this was before or alter the concrete sidewalk was raised), in June and July next following, and in February, 1883 — all upon occasions of heavy rains, and the last, which was an extraordinary freshet, aggravated by the sndden melting of a large body of snow. Eich of them furnished water enough to do some damage by drainage in its natural course and by percolation from the street ditches, without or in addition to that which was hacked up by the concrete sidewalk along the Borden lot.

Upon such evidence the defendant asked the court to give to the jury among others the following instructions:

3. If you believe from the evidence that from a state of nature the plaintiff’s lot was a basin which caught the drainage of surface water from the land surrounding it, and that she has sustained damage from such surface water which naturally flowed thereon, then she can not recover in the action for any such damages, and von should so find.

4. Ton are instructed that one purchasing land or a city lot takes it subject to all its drawbacks which exist at the time of such purchase. And in this case, even though you should believe from the evidence that by grading its streets and neglecting to make suitable culverts to provide for the escape of surface water, the defendant has caused an unnatural quantity ot' surface water to flow onto the plaintiff’s premises, and that slie has been damaged thereby, still, if yon also believe from the evidence that such acts by the city were done before the plaintiff purchased her lot, then she can not recover in this action for such damages, and you should so find.

The first of these was modified by inserting after the words “ wh'ch natural^ flowed thereon,” the words “ and from that alone,” and the other was refused; while in the second instruction given for the plaintiff the jury were told that, it the flooding complained of was m consequence of the surtace water on said street overflowing in setting back upon the street for want of proper sluice ways across said street and under the sidewalk to permit the escape of said water, 01 because of depressions or excavations made and left in the said street in front of plaintiff’s premises, then the defendant can not shield itself from liability simply because said premises, or any portion thereof, is or was below the grade of said street.”

If from the nature of the case the jury could not ascertain with certainty the amount of plaintiff’s damages from the water set back by the concrete sidewalk, in contradistinction from that done by drainage in its natural course from other quarters or by percolation from the ditches of water other than that so set back, it was their province to estimate as best they could from the evidence how much of the whole amount was occasioned by'it; but it was not proper to include any portion of that amount that was due to the other causes, whether operating independently of or in conjunction with it. C. & N. W. Ry. Co. v. Hoag, 90 Ill. 346; Ogden v. Lucas, 48 Id. 493; and when the nature of the case admits of it the burden of distinguishing by proof the amount due to the cause alleged, and for which the defendant is responsible, from that dne to other causes, is upon the plaintiff. Priest v. Nicholds, 116 Mass. 406. We are therefore óf opinion that it was error to modify tiie third instruction and refuse the fourth, as asked by the defendant, and that the latter alternative in the second given for the plaintiff was misleading if not positively erroneous. The fourth for plaintiff is based upon the hypothesis that the city allowed or caused depressions or excavations to he made in the street opposite her premises “ while she was the» owner thereof,” of which there was no evidence. It was therefore improper to give it.

For these errors the judgment will be reversed and the cause remanded.

Reversed and remanded.