text:
    D. D. Baber, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.
    1. Sams—duty of seller making resale. In the absence of any limitation as to time or place, a seller making a resale of goods that have been refused by the buyer must exercise reasonable diligence and care to obtain the highest price, and he is not confined to the market at the place of delivery.
    t 2. Cashiers—refused goods need not be sold within the state. R. S. ch. 14, § 2, concerning sales by carriers of perishable property that owners, refuse to receive, does not require a railroad company to sell cattle at a market within the state, and it is required only to use a reasonable discretion in selecting the market.
    Error to the Circuit Court of Edgar county; the Hon. E. R. E. Kimbbough, Judge, presiding. Heard in this court at the April term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    George B. Gillespie, for plaintiff in error; Shepherd & Trogdon and Glennon, Cary, Walker & Howe, of counsel.
    Frank T. O’Hair, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit brought in the Edgar County Circuit Court by the defendant in error against the plaintiff in error to recover damages which the defendant in error alleges resulted to him by reason of the conversion of ninety-three head of cattle by the plaintiff in error, said cattle being the property of the defendant in error.

There is no contention with reference to the issues as presented by the pleadings, and the case rests upon the question of the legal liability of the plaintiff in error to the defendant in error under an agreed state of facts, which is as follows:

D. D. Baber, the plaintiff, bought ninety-three head of stock cattle in the State of Tennessee. The plaintiff consigned these cattle to himself at Dudley, Ill. These cattle were shipped over the Tennessee Central Railroad and the L. & N. and E. & T. H. Ry. to Terre Haute, Ind., where they were received by the defendant to be carried and transported from Terre Haute, Ind., to Dudley, Ill. The cattle were contained in three cars, the ordinary and usual size and capacity. The shipment begun on the 11th day of October, 1910, at Bushereek, Tenn., and the cattle arrived at Dudley, Ill., on the 14th day of October, 1910. Shortly before the cattle arived at their destination, the plaintiff notified the agent of the defendant at Dudley, that he would not receive the cattle until reimbursed for his damages. When the cattle arrived in Dudley, Ill., the defendant retained the cattle in its possession on pasture for two days and without notice to the plaintiff, shipped the cattle from Dudley, Ill., to the City of Indianapolis, in the State of Indiana, and sold them in the market in said City of Indianapolis. The defendant then tendered the plaintiff $3,389.01, being the proceeds from the sale of the cattle at Indianapolis (which sale was made by defendant) after deducting necessary costs, charges and expenses.

The plaintiff accepted the amount of money last aforesaid, on account, without prejudice to his right to make claim for the full value of the cattle at Dudley. There were regular daily cattle markets for the sale of these cattle at Chicago and Bast St. Louis both in the State of Illinois, and to farmers and feeders in the vicinity of Dudley. Chicago and Bast St. Louis, both in the State of Illinois, are each about one hundred and fifty miles from Dudley, Indianapolis is in the State of Indiana about one hundred and four miles from Dudley. After the plaintiff refused to accept the cattle, which refusal was shortly prior to their arrival at Dudley, the plaintiff and defendant had no further communication between each other, with reference to said cattle, until after the cattle were sold by the defendant at Indianapolis, Ind. The defendant and its agents were not acquainted with the purchasers of cattle in the vicinity of Dudley. The defendant knew of no person at the time of this shipment who bought cattle in the vicinity of Dudley and made no effort to ascertain whether or not there was a market for the cattle in the vicinity of Dudley and who, if any persons, did purchase cattle in that vicinity. The aforesaid cattle could not have been replaced with cattle of like size and quality in value at Dudley, at the time they arrived there, for the sum of $4,600.' Defendant has freight claim which is a lien on cattle for eighty-nine dollars.

The cause was, by agreement, submitted to the court without the intervention of a jury, and a judgment was rendered in favor of the defendant in error in the sum of $1,121.99, whereupon this writ of error was sued out of this court bringing the record before us for review.

The following statement appears in the well-prepared argument of the counsel for defendant in error: “We will simply confine ourselves to the proposition which admits that the shipment of the cattle described in the stipulation of facts agreed to was a shipment, for the purposes of this law suit, of perishable property, and it comes under the second paragraph of Hurd’s Bevised Statutes, chapter 141. There is no question but that the law is well settled that where there is a delay in the delivery of goods by a common carrier, the remedy of the shipper or consignee is to accept the goods and sue for his damages.”

It is further conceded by counsel for defendant in error that if the plaintiff in error had sold the cattle in question in the vicinity of Dudley, Illinois, the point of destination, or at any other cattle market in the State of Illinois, the plaintiff in error would have been clearly acting, within its rights. There is no charge of bad faith on the part of the plaintiff in error raised by this record.

These admissions on the part of the defendant in error leave but one question for the determination of this court, viz.: Was the plaintiff in error required, under the law, to make a sale of the property in question within this state?

Section 2 of chapter 141, B. S., referred to in the admission of counsel for defendant in error, is as follows: “Perishable property which has been transported to destination, and the owner, or consignee, notified of its arrival, or being notified, refuses or neglects to receive the same and pay the legal charges thereon, or if upon diligent inquiry the consignee cannot be found, such carrier may, in the exercise of a reasonable discretion, sell the same at public or private sale without advertising, and the proceeds, after deducting the freight and charges and expenses of sale, shall he paid to the owner or consignee upon demand.”

It will be observed, upon a careful reading of this section that there is an entire absence of any direction as to the place where such sale is to be made, but the carrier (plaintiff in error in this case), in making sale, must exercise a reasonable discretion, not a reasonable discretion within the State of Illinois, or at the destination, but a reasonable discretion in making a public or private sale.

In the absence of any limitation as to time or place, all authorities agree that the vendor must exercise reasonable diligence and care to obtain the highest price for the goods to be sold. If the plaintiff in error be required to sell the cattle at the place of delivery, regardless of price; or, if it must sell within this state, that may take from it the right to use and exercise the reasonable discretion granted to it and required of it by the statute. Can it be true, in the absence of limitation by statute, that the plaintiff in error would have been justified in selling the cattle in Illinois for one dollar per hundred, when, within easy reach, in a foreign market, it might have obtained five dollars per hundred? The fact that there is no complaint as to the price obtained at the sale by the plaintiff in error leads us to the conclusion that the price was adequate, under all of the circumstances of the case.

The rule with relation to place of sale, as laid down by Mechem on Sales, sec. 1622, in substance, supports our position on this question; and in the case of White Walnut Coal Co. v. Crescent Coal & Min. Co., 254 Ill. 368, this rule of law is forcibly announced.

The question was presented to the trial court in proposition of law number three asked by plaintiff in error, and which the court refused to hold as the law applicable to the case. The proposition was as follows: “That said cattle are within the meaning-of Section 2 of Chapter 141, Hurd’s Revised Statutes, being ‘An Act to provide for the sale of personal property by common carriers, warehousemen and.inn-keepers, and by others having liens thereon,’ in force July 1, 1874, .perishable property, and upon the plaintiff, D. D. Baber, refusing to accept the same the defendant was justified in the exercise of a reasonable discretion to sell the same at public or private sale without advertising, and in making such sale had the right to sell said cattle in the most convenient regular cattle market, namely at Indianapolis, Xnd., and the court holds that there was no legal conversion by the defendant of the said cattle because the same were sold at Indianapolis instead of being sold at some cattle market within the State of Illinois.”

Under our views as herein expressed, it was error for the court to refuse to hold said proposition as the law applicable to the facts in the case.

We do not think the plaintiff in error was bound to sell on any particular market, either in or outside of the State of Illinois, but it was required to use reasonable discretion in selecting a market.

It, therefore, follows that the judgment should be reversed, and said judgment is reversed.

Reversed.

Finding of fact. The appellant used reasonable diligence in selecting a market.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    The People ex rel. William McKeever et al., Appellants, v. Board of Education of Drummer Township High School, Appellee.
    * Schools—;power of boards of education to introduce manual training. Under School Law ch. 122, §§ 91, 114, 179, boards of education of township high schools have power to discharge the duties of school directors, to direct what branches of study shall be taught and to establish instruction in such other branches as they may prescribe, including manual training, without submitting the question to the voters of the district, but if they fail to act, the latter may prescribe instruction in such other branches.

      Appeal from the Circuit Court of Ford county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Schneider & Schneider, for appellants.
    W. H. Boys and Cloud & Thompson, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an information in the nature of quo warranto, filed by the Attorney General, and by the State’s Attorney of Ford County, in the circuit court of that county. The Board of Education of the Drummer Township High School was made defendant.

The appellee Board of Education of the Drummer Township High School, prescribed a manual training department in connection with said high school,, as a branch of the educational course.

The information filed herein alleges that no election of the voters of said high school district was ever had authorizing the establishment of a manual training department of said school. To the information the appellee board filed a demurrer, which, in legal effect, admitted that no such election had ever been held.

Upon the hearing the court sustained the demurrer to the information, and, appellants having elected to stand by the information, the court assessed the costs and charges of the suit against the relators, appellants here, and from that decision this appeal has been perfected.

The question involved in the consideration of this case is the construction to be given to sections 91, 114 and 179 of our school law.

It is contended by appellants that no power or authority exists in the board of education to establish a manual training department in said high school, without first having submitted such question to the legal voters of the district and having received their approval. It is contended by appellee that the evident intention of said section 179 was to give to the board of education a certain discretionary power in the selection of new or additional branches, in addition to those enumerated, as the interest of the patrons of the high school might require from time to time. Hence, it becomes important to determine the power and authority of the board of education of the high school in question.

Under the provisions of section 91 of chapter 122, entitled “Schools,” we find that the boards of education of township high schools “shall, in all respects, have the power and discharge the duties of school directors for such districts.”

Then, in order to determine as to the powers conferred upon the appellee board, we must look to the portion of the school law defining the powers of school directors, which are (sec. 114, Eighth clause, and sec. 179, all of chap. 122) “114. The board of directors shall have the following additional duties: Eighth. To direct what branches of study shall be taught, what text books and apparatus shall be used, and to enforce uniformity of text books in the public schools; but they shall not permit books to be changed oftener than once in four years.” “179. Every school established under the provisions of this act shall be for instruction in the branches of education prescribed in the qualifications for teachers, and in such other branches, including vocal music and drawing, as the directors, or the voters of the district at the annual election of directors, may prescribe.”

The sole question in this case is, did the appellee board of education, in September, 1911, have lawful authority and right to establish a manual training department of their school without submitting that question to the voters of the district?

From a reading of the two sections of the school law above quoted it appears that the appellee board, at the time of the establishment of the manual training department, had power to direct what branches of study should be used, and also to see to it that instruction should be given in the branches of study prescribed in the qualification of teachers, and in such other branches as they, the board, might prescribe.

The question then arises, whether or not instructions in manual training is included in the term “branches of study” or “branches of education.”

In the case of Powell v. Board of Education, 97 Ill. 375, the court, in the body of the opinion, at page 387, in commenting upon the section of the school law of 1872, which is identically the same as the section now appearing in our school law as section 179, says: “power is expressly given to directors to order that ‘other branches’ than those enumerated, may be taught in the common schools, and, by another section, they are given discretion to say what those branches of study shall be.”

In Trustees of Schools v. People, 87 Ill. 303, the court on page 307, says: “The powers and duties of the trustees being, with respect to the high school, the same as those of directors with respect to the district school. ’ ’

We are of the opinion that the law, as laid down by the authorities quoted, and others, gave to the board of directors and board of education of township high schools, the power and authority to order and direct what branches of education should be taught in the district and in high schools, without a vote of the people.

Therefore, it becomes important to determine whether manual training is included within the phrase “and in such other branches.” If so, the appellee board had full power to establish a branch of manual training in the high school.

It is generally conceded, that under the term “such other branches” G-erman, French and Latin languages may be taught. Botany, agriculture, domestic science and many other useful lines of education may be and are taught in all of the high schools of our state, and that without a vote of the voters of the district. In order to construe the statute so that the greatest liberality may be given in" securing an education, it does not require, in our opinion, that any strained construction should be placed upon the sections of the statute above referred to. Section 91 says that the powers of the board of education of high schools shall be the same as that of school directors. Section 179 says that school directors may direct what other branches shaft be taught other than those specifically enumerated ; and also says that the voters of the district may by vote elect to establish “other branches”' than those specified.

The proper construction to be given this section is, that the directors may direct, but if they fail, by vote, at the annual election, the voters may prescribe. In other words, if the board of education of the high school do not, of their own motion, under the provisions of section 179, provide for manual training department, then the voters may file a petition, and by a majority vote compel the board of education to act.

Under this view of the law controlling this case, all of the provisions of the school law here involved remain a consistent whole.

Entertaining this view of the law, the action of the court in sustaining the demurrer is approved, and the judgment is affirmed.

Affirmed.


text:
    John E. Richey, Administrator, Appellee, v. Jerseyville Illuminating Company, Appellant.
    1. Electricity—liability of electric company for brohen wires. Where a severe wind storm displaced an electric wire on private grounds, which later broke and shortly thereafter caused the death of plaintiff’s intestate, a boy four years old, eleven hours intervening between the displacement and the accident, and the company in the interim had no knowledge of any dangerous condition, its equipment, insulation and operation otherwise being in good condition and the current normal, it is not guilty of negligence.
    2. Electricity—reasonable diligence in examining Wires. An electric company in the. exercise of reasonable diligence is not required to search remote points every day to discover the condition of its wires.
    Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    Ferns & Sumner, for appellant.
    Edward J. Vaughn, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This is an appeal from a judgment rendered in the Circuit Court of Jersey County in favor of the appellee administrator and against the appellant company.

The declaration made the appellant and one Anna E. Cross defendants, and contains six counts charging the appellant with negligence in operating and failing to equip its electric light plant with suitable and sufficient appliances, and in negligently permitting same to be and become out of repair, and failing to properly construct its lines and wires, but permitted them to break and lie upon the ground while charged with electricity, for a long space of time, after notice, whereby the appellee’s intestate was injured and killed.

Plea of the general issue was filed by appellant, and also by its codefendant, Mrs. Cross. Upon a trial of the cause the verdict of the jury found the appellant company guilty, and Mrs, Cross not guilty. Motion for new trial was made by appellant and overruled, and judgment was entered upon the verdict in the sum of $1,000, being the judgment appealed from.

The record in this case shows that the appellant, on the seventh day of August, 1911, was engaged in op-orating an electric light plant in the City of Jersey-ville, and in furnishing lights to the city and citizens thereof. Among the patrons of the appellant was.Mrs. Cross, who owned and occupied property within the limits of said city. Her house was wired for such lights, and the wire was extended from there to her barn, a distance of about seventy-five to one hundred feet.

The record further shows that appellee’s intestate was a boy between four and five years of age, whose parents lived about one block from the home of Mrs. Cross, that Mrs. Cross had a large lawn in front of her residence, with croquet grounds thereon; that it was the custom of appellee’s intestate and other children to play upon the premises of Mrs. Cross; that on the morning of the seventh day of August, about the hour of four o ’clock, a severe wind storm came, and when Mrs. Cross arose that morning she discovered that the electric light wire extending from her residence to the barn had become displaced and was sagging; that later on in the day it was discovered the wire had become separated near the barn and that one piece lay upon the ground near the barn and the other coiled up lying near the rear of the residence; that the deceased, and other children went, as usual, that forenoon to the premises of Mrs. Cross to play; that Mrs. Cross and family were arranging to leave her home for the day, and requested the children to go away, and that they did so, and remained away until sometime in the afternoon, when the appellee’s intestate and his sister, with “other children, returned, and while they were playing about the yard, the appellee’s intestate came in contact with the broken wire, which had remained charged with electricity, and was killed.

There is no evidence of any kind in this record to show that appellant knew of the breaking of the wire or that any dangerous condition existed. But on the contrary, it clearly appears from the evidence of the superintendent of the appellant, that the first knowledge appellant had of the breaking of the wire was about five o’clock in the afternoon, after the death of appellee’s intestate.

The record herein fails to disclose the exact hour on which the wire fell to the ground, but it was shown by the evidence of Mrs. Ida Scroggins that it was upon the ground at about the hour of three o’clock in the afternoon. Mrs. Cross and her family did not return until after the accident.

The evidence further shows that the plant of the appellant was equipped with volt meters and ampmeters, and the evidence of the superintendent shows that there had been no overcharge of current, and that the current on this wire was normal.

All of the witnesses agree in stating that the insulation upon the broken wire leading from the house to the bam was good, except that at the point where it was broken there was one-half to three-fourths inches of wire exposed.

In our view, this case turns upon whether or not the appellant knew of the broken wire, or, by the exercise of reasonable diligence might have known of the defect.

As we have said above, this record shows the appellant had no personal knowledge or notice of the defect, and the time intervening between the breaking of the wire and the accident could not have exceeded eleven hours, and most likely, did not exceed two or three hours.

We are inclined to the opinion that the exercise of the highest degree of care would not require appellants to search the remotest points of their line and wires every day to discover their condition.

The request for the peremptory instruction, made at the close of all the evidence, directing the jury to find the defendant, appellant here, not guilty, should have been allowed.

For the error indicated, the judgment is reversed.

Judgment reversed.

Finding of fact. We find as a fact that the appellant is not guilty of the negligence charged in the declaration.


author: Mr. Justice Creightor

text:
    The People of the State of Illinois, Defendant in Error, v. Daniel J. McCarthy, Plaintiff in Error.
    1. Criminal law—duty of court to form issue before trial. It is the duty of the court upon the trial of all misdemeanor cases to require the defendant to plead, or to incorporate a plea of not guilty into the record, and thereby make an issue before trial.
    2. Criminal law—record must show plea of not guilty was made. The Criminal Code, div. Ill, § 3, as to arraignment and plea, contemplates an arraignment and plea of not guilty before trial and before a conviction can be sustained in a misdemeanor case the record must show that an issue was made by a plea of not guilty.
    3. Criminal law—when absence of plea of not guilty is not cured. Where it is alleged in a motion for a new trial that a plea of not guilty had not been entered and that no issue had been formed, an amendment of the record of the proceedings in the trial court by the entry of a nunc pro tunc order stating that defendant appeared in open court and “stated he was ready for trial” is not sufficient to cure the defect.
    Error to the County Court of McLean county; the Hon. Homer W. Hall, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded,.
    Opinion filed October 15, 1912.
    Martin A. Brennan and Frank Gillespie, for plaintiff in error.
    William R. Bach and James C. Riley, for defendant in error.
   Mr. Justice Creightor

delivered the opinion of the court.

This is a writ of error to the McLean County Court, sued out of this court to bring before us the record in said cause.

The plaintiff in error was indicted, charged with keeping a gaining house in the City of Bloomington, by the grand jury of that county, and the indictment was certified to the county court for trial.

The record of the proceedings in the said county court may well be set out at length, as there is a controversy as to the effect thereof, and it is as follows:

“And now on this day, (being October 2,1911) come the People, by their attorney, and also come said defendants Dan McCarthy and John McCarthy, by their attorneys, and this canse coming on for trial, thereupon comes a jury, twelve good and lawful men, to-wit: (Here naming them,) who are elected, tried and sworn to well and truly try the issues herein joined and a true verdict render according to the law and the evidence. After hearing the evidence produced, the arguments of counsel and the instructions of the court, the jury aforesaid retire in charge of a proper officer to consider of verdict. After deliberation, the jury return into court with the following verdict: ‘We the jury find Dan McCarthy guilty of keeping a gaming house, as charged in the indictment, and the defendant John McCarthy not guilty.’ ”

A motion for new trial was presented assigning, among other things, the following: “Sixth. The court improperly allowed the case to proceed to trial, there being no plea of not guilty entered by the defendant, at any time, either by himself or counsel.”

“Seventh. The verdict of the jury and all proceedings had in the trial of this cause are “null and void,”' as there is no issue formed; and the defendant not having filed or entered a plea of not guilty.”

On the third day of November, 1911, being one of the days of the said term, the People moved the court for a mmc pro tuno order to amend in said cause “in accordance with the actual facts, so as to show that prior to the trial by jury in said cause the defendant appeared in open court and the defendant, then and there, in open court, by counsel, stated that he was ready for trial, thereupon the jury was empanelled.” The court granted said motion and directed the record to be amended accordingly. Thereupon the motion for new trial was overruled and judgment was entered upon the verdict, to all of which defendant, plaintiff in error here, excepted.

The only assignments of error we deem it necessary to consider in connection with the decision of this case, are those relating to the action of the' court in permitting the defendant to be put upon his trial without a plea.

Section 3, of division III of the Criminal Code, provides that upon the arraignment of a prisoner it shall be sufficient, without complying with any other form, to declare orally by himself or his counsel, that he is not guilty; which plea shall be immediately entered upon the minutes by the clerk, and the mention of the arraignment and such plea shall constitute the issue.

Thus it will be seen that said section contemplates an arraignment and plea of not guilty before trial.

We may reasonably conclude that the People placed the same construction upon this section of the statute, otherwise there would be no reason for the nunc pro tunc curative order asked for and made by the court.

Be that as it may, it seems to be the duty of the court, upon the trial of all misdemeanor cases, to require the defendant to plead, or to incorporate a plea of not guilty into the record, and thereby make an issue before trial. It is believed this holding is uniform in the state. An issue must be formed before a verdict can be sustained. That issue may be made by arraignment and plea of not guilty or, in misdemeanor cases, by announcement, orally in open court, that the defendant is not guilty; or, where the defendant stands mute, the court may enter for him a plea of not guilty. But, in every case, before _ a verdict can be sustained the record must show tiiat an issue was made by a plea of not guilty. Johnson v. People, 22 Ill. 314; Gould v. People, 89 Ill. 216; Parkinson v. People, 135 Ill. 403.

It is contended by counsel for defendant in error People, that the record made in the nunc pro tunc order is sufficient to cure the defect complained of by plaintiff in error in this respect.

The record, as amended, discloses the fact that the plaintiff in error then and there appeared in open court and that he, then and there, “stated he was ready for trial.”

In our view the record as amended by the nunc pro tunc order is not sufficient to make an issue of the guilt or innocence of the plaintiff in error, as required by the statute. It may reasonably be concluded that what the jury was to try was to determine the guilt or innocence of the plaintiff in error upon the occasion in question, and that the issue there was his guilt or innocence, but such does not appear from the recitals of the record; and for that reason the motion for new trial should have been granted.

For the error above stated the judgment is reversed, and the cause is remanded to the said court for further proceedings.

Reversed and remanded.


text:
    Everett J. Brown et al., Appellants, v. The Massachusetts Bonding and Insurance Company et al., Appellees.
    1. Principal and surety—construction of bond limiting time to sue. A clause in a building contractor’s bond requiring that suit thereon must be brought within six months after the first breach of contract is not ambiguous and does not mean the first breach for which damages are claimed, and on a failure to complete the building on the day agreed, limitations commence to run on such day.
    2. Principal and surety—general rule of construction of bonds. In construing a contract of suretyship, the court must look to "the language of the contract alone to determine what it means, unless there is such ambiguity as renders it doubtful or uncertain.

      3. Principal and surety—time to sue may he limited. A surety has a legal right to limit the time within which suit may be brought against him, and when he does so by a provision in a bond the limitation becomes a part of the contract and should be enforced the same as any other contract.
    4. Principal and surety—that entire loss may not he determined does not preclude running of limitations. In construing a clause in a building contractor’s bond requiring that suit must be brought thereon within six months from the first breach of contract to mean that limitations commence to run from the day the building should have been completed and not from the first breach for which damages are claimed, it is immaterial that on the day for the completion of the building the damages could not be definitely determined or recovered for the whole loss, since the Practice Act, section 35, permits the recovery of subsequent damages.
    Appeal from the Circuit Court of Macon county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Jack, Deck & Whitfield for appellants; Frederick A. Brown, of counsel.
    McGinley & Wiley, for appellee, Massachusetts Bonding & Insurance Co.
   Mr. Justice Creighton

delivered the opinion of the court.

This suit was brought by the appellants against the appellees, in the Circuit Court of Macon County, to recover for alleged forfeiture upon a surety bond given to secure the performance of a builder’s contract.

The amended declaration contains one special count, and incorporates therein a copy of the builder’s contract and the surety bond, and to this declaration the appellees filed the plea of the general issue and nine special pleas. Appellants interposed demurrers to all of the special pleas. The court sustained the demurrers to the second, third, fifth, sixth and seventh special pleas and overruled the same to the first, fourth, eighth and ninth special pleas, and the appellants elected to abide their demurrers to said first, fourth, eighth and ninth special pleas, whereupon judgment was entered by the court against the appellants for the costs, and thereupon this, appeal was perfected, thus bringing the record here for review.

Under the view we take of this case, it will not be necessary to consider any of the pleadings further than the first special plea, which is, in substance, as follows:

“And for a further plea in this behalf, the defendant, the Massachusetts Bonding and Insurance Company, says that the plaintiffs ought not to have their aforesaid action against it, the defendant, because it says the plaintiffs did not commence their aforesaid action against it on or before the expiration of six months from January 15, 1910, but on the contrary thereof, commenced their said action on the 4th day of October, 1910, contrary to the terms and conditions of the said writing obligatory; and this defendant is ready to verify,” etc.

It will be observed that this plea raises the question of the liability of the appellee company, because of the failure of the appellants to commence this suit on or before the expiration of six months from January 15, 1910, same being the date when all work under the contract was to have been completed. The language of the builder’s contract on this point, as shown by the declaration wherein it is incorporated, is, “all work on this contract to be completed by the 15th day of January, 1910.” The condition of the bond, which is set out in haec verba in the declaration, so far as it relates to this question, and under which the plea under consideration was filed, is as follows: ‘ ‘ That any suit at law, or proceeding in equity, brought on this bond to recover any claim hereunder, must be instituted within six months after the first breach of said contract. ’ ’

The record discloses that this suit was brought on the fifth day of October, 1910, which was almost nine' months after the .date mentioned as the date for the completion of the whole work under the contract.

Appellants contend that the clause of the bond requiring that suit must be brought within six months after the first breach of the contract, means the first breach for which damages are claimed.

We must look to the language of the contract alone to determine what it means, unless there is such ambiguity as renders it uncertain or doubtful. There is no uncertainty or doubt about the language here used. It will not admit of two constructions. We fail to see how it could state its limitation of liability in clearer language. The rule for the construction of contracts is clearly laid down in the case of Johnson v. Humboldt Ins. Co., 91 Ill. 92, and is stated as follows: “The intention must and can only be sought in the language employed in the instrument itself, and from the ordinary or popular meaning of the words themselves, unless it is apparent they are used in a technical or particular sense.”

But if we should concede the interpretation upon the clause of the surety bond urged by the appellant, that “it means the first breach for which damages are claimed,” we fail to see how it would be to their advantage, as practically all of the long list of damages as alleged in the declaration resulted from a failure to complete the building according to the terms of the contract on or before the 15th day of January, 1910, the day mentioned for the completion of the whole building.

The appellees herein had a legal right to limit their liability to any time in their undertaking, and when they did so, the limitation became a part of the contract of indemnity and should be enforced the same as any other contract.

It is contended by appellants that at the time mentioned for the completion of the building in the contract, the damages could not be definitely determined nor be successfully forced by suit so as to indemnify appellants against their whole loss sustained by the breach in the builder’s contract.

In this respect appellants are laboring under a misapprehension of the law. They were not required to ascertain and present claims for all of the damages which might accrue at the date at which the building was to be completed. If there was a single breach at that time, they could have instituted their suit under the 35th section of our Practice Act, which is as follows: “In actions brought on penal bonds, conditioned for the performance of covenant, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think fit; and the jury whether on trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches as may afterwards happen, and the plaintiff may at any time afterwards sue out a writ of inquiry to assess damages for the breach of any covenant or ■covenants contained in such bond, subsequent to the former trial or inquiry,” etc.

Thus it will be seen appellants were entitled to sue at any time within six months of the first breach, whether that be a failure to complete the building within the time specified in the contract, or in any other respect, and could have recovered and thereafter might have sued out writs of inquiry and assigned subsequent breaches. Dent v. Davidson, 52 Ill. 109 and McDole v. McDole, 106 Ill. 452. The failure of the appellants to avail themselves of the plain provisions of the statute cannot be offered as a reason for denying to the appellees the benefit of the limiting clause of their contract.

In support of the views herein expressed, we cite, Lesher v. U. S. Fidelity & Guaranty Co., 239 Ill. 502, aff’g 144 Ill. App. 632. These authorities discuss fully all of the issues raised in this case, and in those cases the pleadings were identical with those herein. An examination of them will disclose that they clearly sustain the action of the trial judge in this case, in overruling the demurrers.

For the reasons given the action of the trial judge is approved and the judgment affirmed.

Affirmed.


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    The Reinhart Grocer Company, Appellee, v. The Benld Mercantile Company, Appellant.
    1. Pabtnebship—constructive notice of retirement is not sufficient. It would seem that constructive notice to a person selling goods to a firm of the retirement of a partner will not relieve such partner of liability.
    2. Pabtnebship—when seller is not put upon notice of withdrawal of partner. Where a person selling goods to a firm has no actual knowledge of the retirement of a partner and the business is carried on in the same firm name, in the same place and under the same general management as before, the fact that the remaining partner was an active member of the firm after the retirement of the other partner and took part in the management and control of the business is not a circumstance tending to put the seller upon notice of the withdrawal of the partner.
    3. Pabtnebship—notice must be given of withdrawal of partner. Where a member of a firm performing only the duty of posting up the books is introduced to a traveling salesman as a partner and so reports himself to a mercantile agency, and after such partner’s withdrawal from the firm the salesman sees him at the firm’s place of business and is not informed of the withdrawal, the withdrawing partner is liable for goods sold by the salesman to the firm after his retirement.
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shibuey, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Edw. C. Knotts and Peebles & Peebles, for appellant C. R. Eagle.
    Victor Hemphill and W. E. P. Anderson, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This is an action of assumpsit, brought in the Macoupin Circuit Court by the appellee against C. B. and F. W. Eag’le, doing business under the firm name and style of Benld Mercantile Company. The declaration consisted of the common counts for goods sold and delivered, with affidavit of merit attached. The plea of the general issue and the sworn plea of C. B. Eagle denying that he was a partner and should not be sued as such, were filed to the declaration, upon which issue was joined and the cause heard, by agreement by the court, without the intervention of a jury.

The court found the issues for the appellee and against both the defendants, and entered judgment in the sum of three hundred and twenty-four dollars against both defendants below. From this judgment the said C. B. Eagle has perfected this appeal.

The principal errors assigned and complained of by the appellant are as to the action of,the court in refusing to hold as the law applicable to the case propositions of law asked by said appellant, and the action of the court in rendering judgment against the appellant, C. B. Eagle.

The propositions of law which the appellant contends the court erred in refusing to hold as the law are as follows:

“The court holds in this case that the facts and circumstances introduced in evidence in this case show constructive notice of the retirement of the defendant, C. B. Eagle, from the partnership firm doing business as The Benld Marcantile Company, to the plaintiff in this action.” “The Court holds that before the plaintiff in this action can recover from the defendant it must be shown by competent evidence that the items sued for were furnished by the plaintiff to the Benld Mercantile Company upon the faith of the fact that the defendant, C. B. Eagle, was a partner in said firm; and that there is no competent proof in this case of that fact.” “The court holds, that knowledge of any circumstances that would put a man upon inquiry will be sufficient to charge him with notice of such facts as his inquiries would have disclosed with reference to the retirement of a partner from a partnership firm; and in this case the travelling salesman of the plaintiff corporation had knowledge of facts in this case, as shown by the evidence in this case, sufficient as matter of law, to charge him with actual notice of the retirement of O. B. Eagle as a partner in the Benld Mercantile Company.”

We fail to find any reversible error in the action of the trial judge in refusing to hold as law the propositions so asked by appellant, and our view wdth relation to the law applicable to the propositions of law, will be more fully stated in passing upon the other error assigned upon this record.

The remaining error assigned, that the court erred in rendering judgment against the appellant C. B. Eagle, requires a statement of the facts proven upon the hearing, and they are, in substance as follows:

In May, 1909, F. W. Eagle and appellant, C. B. Eagle, engaged in the grocery business as equal partners, under the firm name of The Benld Mercantile Company, in Benld, Illinois, and purchased goods from the appellee company, through their salesman, Mr. Gum, and appellee continued from that time on to be a correspondent of the said firm, and when the salesman of appellee was taking one of his first orders from the said Benld Mercantile Company, the appellant, C. B. Eagle, was present and was then introduced to the salesman, as a member of the firm. On July 2, 1909, the appellant, C. B. Eagle, sold his interest in said business to his brother, P. A. Eagle. During the time C. B. Eagle was a member of said firm he was employed as cashier of a bank, and he performed no duties of the character of manager, clerk, salesman, buyer, or otherwise, except that after banking hours he posted up the books of the firm.

Shortly after engaging in the grocery business, and before selling his interest therein to this brother, appellant, C. B. Eagle, as reporter for B. Gr. Dnn & Co., gave the names of the members of the firm of the Benld Mercantile Company, and he included his own name therein. He afterwards made a report for the same agency, in which he stated he had no interest in the business, but the date of that report is not definitely given.

When the salesman of appellee was making his regular semi-monthly trips to Benld after July 2, 1909, he would frequently see appellant, C. B. Eagle, at the place of business of the company, and C. B. Eagle did not at any time mention the fact to the salesman of his withdrawal from the firm, nor did he ever give notice to appellee of such withdrawal, until long after the debt in question had been contracted, and only shortly before this suit was instituted.

It further appears from the evidence in behalf of appellee that it relied upon the fact, in extending credit to the firm, that C. B. Eagle was a member of the firm and was so reported in the report of B. Gr. Dunn & Company to them, and that no notice, personally or otherwise, of the withdrawal of C. B. Eagle from the firm, was ever given it until long after the debt in question had been contracted, and just a short time before the suit was brought.

The rule requiring a partner, upon his withdrawal from a partnership, to give notice of the withdrawal to all regular correspondents in order to relieve himself from future liability, seems to be well settled. It is clearly stated in the case of Holtgreve v. Wintker, 85 Ill. 470, in the following language: ‘ ‘ The rule of law is undoubtedly that, where a change takes place in a firm, by some members retiring, and where the same firm name is still used, such retiring members can only relieve themselves from liability by giving actual notice of such fact to persons accustomed to deal with the firm, and who may continue to do so. As to them, the partnership is presumed to continue the same as it was when they commenced to deal with it, until they in some way have actual notice a change has taken place. It is apprehended it makes no difference how such notice is given, whether by the retiring members or by any other means, so that actual notice of the dissolution of the firm is brought home to the former correspondents.”

Thus it will be seen that in order for the appellant, C. E. Eagle, to relieve himself from further liability to appellee, after his withdrawal from the firm, it was his duty to, in some manner, give actual notice to appellee of such withdrawal. Constructive notice seems not to be sufficient, but, whether so or not, it appears from the record in this case that appellee had no notice, constructive or otherwise, of the withdrawal of C. B. Eagle, from the firm until long after the debt here sued for had been contracted.

It is contended that the fact P. A. Eagle was an active member of the firm after July 2, 1909, and took part in the management and control of the business, should be considered as a circumstance tending to put appellee upon notice of the withdrawal of C. B. Eagle from the firm. Under the rule laid down in the case just above quoted from, slight circumstances of this character would not be sufficient to put appellee upon notice, particularly so when the business was carried on in the same firm name, in the same place and under the same general management as before.

Finding no error in the record of reversible character, we feel constrained to affirm the judgment; and the judgment of the circuit court is affirmed.

Affirmed.


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    Village of Harvel, Appellant, v. J. H. McGlothlin, Appellee.
    1. Appeals and ersobs—substantial justice notwithstanding errors. Courts of review reverse only for such errors as may have been prejudicial to the complaining party, and as no number of errors can he said to he prejudicial to a party where the judgment upon conceded facts is the only one that could he rendered and another trial must result in the same way, where it appears from the whole record that substantial justice has been done between the parties, a judgment will not he reversed, even though errors intervened in the giving and refusing of instructions.
    2. Cities and villages—persons subject to street labor. Defendant is not an able-bodied man who may he legally required to perform street labor under the terms of a village ordinance where he is suffering from a pulmonary disease that produces hemorrhage, coughing and shortness of breath.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    F. M. Ramey and Hill & Bullington, for appellant.
    E. A. Cress and H. A. Sawyer, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This suit was commenced before a justice of the peace by the appellant village, against the appellee, to recover under an ordinance of such village, for the alleged failure of the appellee to work upon its streets, after notice served.

The ordinance in question provides that every able-bodied male inhabitant of the village, above the age of twenty-one and under the age of fifty years, shall labor upon the streets of the village at least two days each year, or pay, in lieu thereof, $1.50.

Tin the trial before the justice of the peace the issue was found for the appellee, and an appeal was taken to the Circuit Court of Montgomery County, where the case was again heard and a verdict returned finding the issues for the appellee. A motion for new trial was made and overruled and judgment rendered upon the verdict of the jury; and this appeal has been perfected.

A reversal is sought because of erroneous instructions given for the appellee, and the refusal of proper instructions asked on behalf of the appellant. Instruction No. 1, given at the request of the appellee, is subject to criticism, and instructions numbered 1 and 2, as asked by appellant and refused by the court, were proper and should have been given.

For these errors in rulings upon the instructions above mentioned, the judgment should be reversed, unless we can say from the whole record, that substantial justice has been done.

The facts disclosed by the evidence in the record are, substantially, as follows: In the year 1911 the appellee was a resident of the appellant village, was above the age of twenty-one and under fifty years, and his name appeared upon the roll of able-bodied male citizens eligible to labor upon appellant’s streets. On the eighth day of September of said year, appellee was served with a proper notice requesting him to appear at a designated place and time, to perform two days’ road labor, or to commute same by a cash payment. At the time of the service of this notice, appellee presented a certificate of a practicing physician, dated the same day, which certified that he, the physician, had examined and prescribed for appellee, and advised him against performing any hard labor.

Upon the trial of the cause in the circuit court, the evidence disclosed the fact that appellee had been suffering from some throat or lung trouble for a number of years, and was subject to a cough, and at times had hemorrhage. These facts were testified to by Dr. W. H. Mercer and five other witnesses, some of whom roomed with appellee, one of whom was his partner, and by others who saw him frequently.

It further appeared, that during the summer and fall of 1911, appellee would take spells of coughing at night, and would expectorate blood; and Dr. Mercer further testified that when he prescribed for him on the eighth day of September, 1911, he was then suffering from an attack of malaria, weakness of lungs and shortness of breath. The evidence also disclosed that during the spring and summer of that year he worked at painting and other labor for different persons at intervals, perhaps half of the time; but upon several occasions he became sick and returned to his home unable to work.

Under this state of facts was appellee an able-bodied man and legally required to perform street labor, and was the verdict of the jury and the judgment of the court supported by the proofs disclosed?

We are at a loss to perceive how the jury could have foxmd a different verdict than the one returned by it.

While it may be said, and correctly so, that in order to be liable for street labor under the ordinance in question a man need not- be physically perfect, it certainly cannot be said that a man suffering from a pulmonary disease that produced hemorrhage and shortness of breath, accompanied by coughing and the expectoration of blood at times, is an able-bodied man.

In this case we feel that substantial justice has been done by the verdict and judgment below, and that any other judgment would be unjust to the appellee.

The rule of law is well settled that, if from an inspection of the record it appears that substantial justice has been done between the parties, the judgment should not be reversed, even though it should be conceded that error intervened in the giving and refusing of instructions. In the case of Heckle v. Grewe, 125 Ill. 58, the supreme court used the following language: “Courts of review reverse only for such errors as may have been prejudicial to the complaining party, and certainly no error or number of errors can, with any propriety, be said to prejudice a party, when it is clear, as it is here, that the judgment upon the conceded facts is the only one that could properly be rendered, and that another trial would therefore necessarily result the same way. ’ ’

This principle of law has met with the approval of this court also, in the following cases: Berry v. Illinois Cent. R. Co., 92 Ill. App. 488; Lord, Storey & Co. v. Hollis & Duncan, 86 Ill. App. 241.

It is, therefore, our duty to affirm this judgment, notwithstanding the erroneous instructions mentioned.

Affirmed.


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    Harvey M. Burns, Appellant, v. George L. Kimber, Appellee.

      Boundaries—restoring original survey. The Acts of May 10, 1901, and May 27, 1911, providing for the permanent survey of lands, confer no power upon the commissioners to run new boundary lines, but their duty is simply to ascertain as near as possible lost corners, and to retrace and to re-establish the lines of the original United States survey and those by which purchasers have been influenced and governed in previous conveyances.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    M. T. Layman, for appellant.
    Kirby, Wilson & Baldwin, for appellee.
   Mr. Justice Creighton

delivered the opinion o,f the court.

A petition was filed in the Circuit Court of Morgan County, under the act providing for the permanent survey of lands, and in such petition the appellant sets forth that he owns lot No. 10, and the appellee lot No. 9, in Block 21 of the original plat of the City of Waverly, in said Morgan County, and that the lines and corners of said lots are in dispute and unsettled, and prays for the appointment of- a board of surveyors to permanently' establish the corners and boundary lines between said lots, in the manner provided by statute.

Due notice was given the appellee and he appeared and filed a demurrer to said petition. The court sustained the demurrer, and appellant elected to stand by his petition, and thereupon the court entered judgment against appellant for the costs of suit, and appellant prayed for and perfected this appeal.

The question to be here considered is whether or not the trial court erred in sustaining the demurrer to this petition.

It will be observed that the petition does not allege that any survey had ever been made of the lots, "or that the corners and boundary lines of the lots had been theretofore surveyed and established by the government or other authority, but rests his case upon his right to have a board of surveyors appointed by the court to survey and establish the comers and boundary lines because such corners and boundary lines “are in dispute and unsettled.”

The act to provide for the permanent survey of lands, approved May 10, 1901, was amended, as to section 2, by the general assembly May 27, 1911, in force July 1, 1911. Such section, as amended, is a re-enactment of section 2 of 1901, except as to the method of giving notice. Hence the Act of 1901, with the exception of the direction as to notice, is still in full force and effect.

The statute under consideration provides in section 1 how adjoining owners of lands may, by agreement, have the boundary lines and corners of their lands permanently fixed.

Section 2 provides that proprietors owning adjoining lands, the corners and boundaries whereof are lost, destroyed or in dispute, or who are desirous of having the comers and boundaries re-established and who will not enter into an agreement as provided in section 1 of the act, may lawfully cause a notice in writing to be served upon adjacent owners, as provided in the act, that application will be made to the circuit court to have a commission of surveyors to permanently establish the corners and boundaries of their lands.

Section 3 of the act, provides for the appointment of three surveyors who shall proceed to make said survey and report their proceedings, accompanied by a plat and survey, and the surveyors shall have power to administer oaths and take and report the evidence so taken of any person who may be able to identify any original government corner or other legally established corner, government line, tree, noted object, stone or monument having been in existence over twenty years, and recognized as an original government corner by the adjoining property owners.

The statute of to-day appears to be, in all respects, the same as the Act of 1869, except as to the manner of giving notice, and the notice in the case at bar is not in question.

In the case of Martz v. Williams, 67 Ill. 306, the court, in construing section 2 of the Act of 1869, says: “Section 2 of the Act of 1869, under which the proceedings were had, provides the manner by which to re-establish corners and boundaries lost, destroyed or in dispute. It nowhere confers power on the commissioners to establish new corners or run new boundary lines, but simply to re-establish those once established by the United States, the original proprietors, and by which comers and boundary lines they sold and conveyed the same to the several purchasers.”

Section 2 of the Act of 1869 was again construed by our supreme court in the case of Irvin v. Rotramel, 68 Ill. 11, where it was said: “We had occasion, in the case of Martz v. Williams, 67 Ill. 306, to give our views at some length on the object and purpose of this act, and to express the opinion it was not the province of the commission to make new corners and new lines as boundaries, but to establish old comers and retrace old lines—those corners and lines once established by the United States surveys, by which parties purchasing land of the government were influenced and governed. We held it was incumbent on the commissioners, acting under this statute, to ascertain the lines and comers, as near as possible, according to the government survey as actually made, without regard to any mistake the surveyors may think there may have been in the original survey as it was actually made.”

The same construction of the section is adopted in the case of Allmon v. Stevens, 68 Ill. 89, where the court holds that: surveyors appointed under the Act of 1869, which provides for the permanent survey of lands, have no power to establish new corners or lines. They are only authorized to ascertain original corners and lines and re-establish them.

By reference to the case of Krause v. Nolte, reported in 217 Ill. 300, it will be observed that the court in construing section 2 of the Act of 1901 said: “It is evident from this section, and indeed from the whole tenor of the act, its object is to provide means by which lost corners may be restored and placed where they properly belong according to the original survey.”

In Schrader v. Kehr, 234 Ill. 205, the court, in passing upon the Act of 1901, found it to be practically the same as the Act of March, 1869, and adopted the same construction as announced in all the cases above cited, and said: “It (the act) nowhere confers power on the commissioners to establish new comers or run new boundary lines, but simply to re-establish those once established by the United States.”

The petition herein does not allege that the corners and boundaries of the lots have ever been established, nor does it pray to have them ascertained and reestablished.

Without reference to other objections raised by appellee, we regard this as sufficient to sustain the ruling of the court below, and the judgment is, therefore, affirmed.

Affirmed.


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    The American Laundry Machinery Company, Appellee, v. Oscar N. Barr, Appellant.
    1. Dismissal—voluntary. On assumpsit upon an open account for certain machinery furnished, where defendant alleges breach of warranty as to a machine and that it is of no value, it is the duty of court under the Practice Act, § 39, to allow plaintiff on motion after the evidence is heard to dismiss the part of the account relating to the alleged defective machine.
    2. Instructions—effect of dismissal. Where a portion of an open account sued on, to which special pleas of breach of warranty and set-off are filed, is dismissed on motion, instructions are proper which provide that upon such pleas and issues the jury must find for plaintiff and that the only issue is whether recovery can be had on the part of the account not dismissed.
    3. Set-off—pleading. A plea is defective which offers to set off unliquidated damages growing out of a breach of contract, but does not show that it grew out of and was a part of the contract sued on.
    4. Damages—unliquidated defined. Unliquidated damages are damages which cannot be ascertained by a computation or calculation.
    5. Damages—when set-off deals with unliquidated. In an action on an account for machines furnished, pleas of set-off deal with unliquidated damages- where they aver, respectively, breach of express and implied warranties as to a machine and claim damages.
    6. Set-off—effect of dismissal of part of declaration. Where an account is sued on and the part thereof to which set-off is pleaded for alleged breach of warranties and failure of consideration is dismissed, defendant is not entitled to urge his plea of set-off against the remainder of the account.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.

      W. E. Thomson and J. O. Priest, for appellant.
    Bellatti, Barnes & Bellatti, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in assumpsit commenced in the Circuit Court of Morgan County by the appellee against .the appellant upon an open account. The declaration consisted of the common counts and contained a copy of the account sued on.

The account sued on consisted of a bill contracted on the 23rd day of October,. 1907, and billed out on November 30, 1907, aggregating the sum of $1,469 and being wholly laundry appliances, and various other items of laundry machinery and appliances of various other dates for the years 1908 and 1909, amounting to about $199.67, and upon the account stated appears a long list of credits.

To the declaration was filed the plea of the general issue and five special pleas, and issue was thereupon joined. The first special plea avers, in substance, that the conveyor dry room was warranted to appellant and proved to be worthless, of no value, and that, therefore, the consideration failed. The second special plea claims special damages by reason of the breach of warranty of appellee, as to the conveyor dry room, so sold to appellant, partial payment and partial failure of consideration. The third special plea avers an implied warranty as to the conveyor dry room, sets up the breach, and claims damages. The fourth special plea avers an express warranty, of the conveyor dry room, and alleges the breach and damages. The fifth special plea alleges breach of the warranties as to the conveyor dry room and claims damages by way of set-off.

Upon the trial of the cause before the court and a jury, and after the evidence had been heard, appellee asked and obtained leave of the court to dismiss and eliminate from Ms declaration all of that part of the account sued upon, contracted for on the 23rd day of October, 1907, and billed out on November 30, 1907.

It appears from the record that by the elimination from the declaration of that portion of the account last above referred to, the item of the conveyor dry room complained of was also eliminated, stricken out and dismissed from the consideration of the jury. After the amendment of the declaration, and the giving of the instructions, the cause was submitted to the jury and a verdict returned in favor of the appellee in the sum of $177.17. A motion for new trial was overruled and judgment entered upon the verdict, and this appeal was perfected by the appellant.

Appellant assigns as one ground of error the action of the court in permitting the appellee to amend his declaration and dismiss as to that portion of the account sued on which contained the conveyor dry room and contracted before November 30, 1907.

Section 39 of our Practice Act, is as follows: “At any time before judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter either of form or substance, in any process, pleading or proceeding wMch may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action.”

Thus it will be seen, from a careful consideration of the above section, that the court not only acted clearly within its discretion in permitting the amendment, but it was its duty, upon the motion, to permit the amendment at that time.

It is next complained that the court erred in giving instructions numbered one and two, asked on behalf of the appellee, which are as follows:

“1. The court instructs the jury that under the evidence in this case the defendant cannot prevail upon his special pleas of breach of warranty and set off and upon those pleas and issues the jury must find for the plaintiff.”
“2. The court instructs the jury that the only issue now before the jury in this case is whether or not there remains anything due the plaintiff for goods sold and delivered to the defendant by the plaintiff subsequent to November 30, 1907, and if the jury believe from the evidence that subsequent to November 30, 1907, the plaintiff- sold and delivered to the defendant goods, wares and merchandise and that the defendant still owes for the same or any part thereof, then the jury should find for the plaintiff and assess its damages at such sum as the jury believe from the evidence is still due and unpaid for goods and merchandise so sold by the plaintiff to the defendant subsequent to November 30, 1907.”

After the amendment of the declaration the item referred to in the special pleas, to-wit: The conveyor dry room, and all other merchandise purchased at the same time, had been stricken from the declaration. Therefore, the court properly gave said instructions. The only issue before the jury after the elimination of the above items from the declaration, was as to the account commencing December 1, 1907, and extending to March 29,1909, and as to these items there is little or no proof on the part of the appellant, and no objection urged in his brief.

It is, however, contended by appellant, that notwithstanding the elimination of the item of the conveyor dry room and the other items to which his special pleas referred, he had the right to the plea of set-off.

The rule as laid down in the very early case of Hawks v. Lands, 8 Ill. (3 Gilm.) 227, so far as we have been able to determine, has been recognized as correct, and is as follows: Unliquidated damages arising out of covenants, contracts or torts, totally disconnected with the subject of the plaintiff’s claim, are not such claims or demands as constitute matter of set-off under the statute. The five special pleas were properly plead to the original declaration, because they averred a warranty, a failure and damages, arising out of and connected with the items appearing in the original declaration. But, when the declaration was amended and the items alleged in the pleas to have been warranted and bought at the same time and for which set-off was claimed had been eliminated by the leave of the court, they could serve no further purpose. The only reason these five pleas were proper under the original declaration, was because the damages complained of grew out of the alleged failure of the goods purchased on November 30, 1907, to be as warranted.

It should be understood that there is a distinction between liquidated and unliquidated damages, as to when they may be plead as set-off. We believe this to be the rule that controls in this class of cases: A plea is defective in offering to set-off unliquidated damages growing out of breach of contract, without showing that it grew out of and was a part of the contract sued upon. Such damages arising out of covenants, contracts or torts not connected with the subject-matter of the suit, do not constitute the subject-matter of set-off under our statute. This rule is fully supported in the case of Clause v. Bullock Printing Press Co., 118 Ill. 612; Ewen v. Wilbor, 208 Ill. 492, aff’g 99 Ill. App. 132.

Therefore, no plea counting on unliquidated damages, under the condition of this record at the time the instructions were given, could be proper.

It is important at this time to determine whether or not these pleas claimed liquidated or unliquidated damages. Unliquidated damages are such as rest in the opinion only, and must be ascertained by a jury, their verdict being required by the peculiar circumstances of each case. They are damages which cannot be ascertained by a computation or calculation. Higbie v. Rust, 211 Ill. 333; Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 278.

Or to state the rule otherwise, unliquidated damages are such as are unascertained, as those arising out of torts as well as those following breaches of contract, where the amount of the damage has not been, by agreement, determined. Horn v. Noble, 95 Ill. App. 99; Trower v. Elder, 77 Ill. 452.

All of the special pleas in this case deal with alleged damages that cannot be determined by any mathematical process. They are such damages as cannot be ascertained by calculation or computation, and clearly come within the definition of unliquidated damages. It will be observed these special pleas do not complain of damages arising under any purchase of December 1, 1907, and subsequent thereto, but relate wholly to one item in the purchase of November 30, 1907.

In answer to the complaint as to the action of the court in failing to apportion the costs, it is sufficient to say that this was a matter wholly within the discretion of the court, and is not ground for error.

Therefore, under the view we take of the case, the action of the court below was correct, and the judgment is affirmed.

Affirmed.


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    Truman’s Pioneer Stud Farm, Appellee, v. Zion F. Baker et al., Appellants.
    1. Pleading—stipulation. Where attorneys stipulate that defendant may under the general issue introduce all evidence admissible under any proper pleadings, and shall have the benefit of all proper pleas as though filed and issue joined thereon, and all proper rejoinders, such stipulation permits any defense admissible under any proper pleading, and it is the duty of the court to permit any matter of fact to go to the jury which tends to establish any proper defense.
    2. Evidence—answers admissible under pleadings. Where, under the pleadings in an action on notes given in payment for a stallion, any fact is proper to be submitted to the jury which relates to a failure of a warranty or of consideration, or supports a contention that the horse is of little value, answers to questions put to the defendants and one qualified to testify should be allowed and should go to the jury where such questions relate in the main to the warranty and an alleged adjustment thereof and to the value of the horse.
    3. Instructions—peremptory. The asking of a peremptory instruction is equivalent to an admission upon the record of every fact and conclusion in favor of the opposite party which the evidence tends to prove.
    4. Instructions—when peremptory improperly given. In an action on a note given in payment for a stallion warranted for a year to be an average foal getter, it is error to direct a verdict for plaintiff where the uncontroverted evidence tends to support defendant’s contentions that such stallion was kept after the year expired under a warranty that if he did not make good plaintiff would make it right, that a final settlement on the question of warranty was made but plaintiff failed to comply therewith, and that the stallion failed to make good.
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Rehearing denied December 20, 1912.
    E. J. Miller, for appellants.
    Frank J. Thompson and James W. & Edward C. Craig, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This suit was filed in the Circuit Court of Moultrie County by the appellee corporation against the appellants. The declaration contains one special count on a promissory note, and the common counts. Appellants filed the plea of the general issue and four special pleas.

Demurrers were filed to the special pleas and sustained, and leave given the appellants to plead over. Pending the filing of snch new pleas, a stipulation was entered into between the parties hereto, as follows :

“It is hereby stipulated between the attorneys for the plaintiff and defendants, that under the general issue the defendants shall be entitled to introduce all evidence which would be admissible under any proper pleadings, and the plaintiff shall be entitled to introduce all evidence which would be admissible under any prope» set of replications and rejoinders, and defendants shall have the benefit of all proper pleas the same as though filed and issue joined thereon, and plaintiff shall have the benefit of all proper replications the same as though filed, and the defendants of proper rejoinder thereto.”

After the filing of the stipulation, the plea of the general issue was withdrawn, a jury impaneled and the evidence heard. At the conclusion of all of the evidence-the court gave a peremptory instruction directing the jury to find the issues for the plaintiff, and to find that there “is due from the defendants to the plaintiff the sum of $2,825.66.” The jury followed this instruction.

Motion for new trial was entered, setting up, among other things, that the court erred in refusing to admit proper evidence offered by appellants; that the court erred in giving the peremptory instruction requested by appellee; that the verdict is contrary to the law and the evidence, but the court overruled said motion, to which appellants excepted, and thereupon the court entered judgment upon the verdict and appellants again excepted. This appeal was then perfected, bringing the record before us.

The stipulation entered into by counsel herein, permitted any defense to haye been made that would have been admissible under any proper pleading. A payment, . want of consideration, failure of consideration, warranty and breach thereof, recoupment, accord and satisfaction, set-off, extension of time, or any other defense which might have been properly pleaded was proper under this stipulation, and it was the duty of the court, upon the trial of the case, to permit to go to the jury on behalf of the appellants, any matter of fact that tended to the establishment of any of said defenses.

The only evidence of the appellee was the promissory note. Zion P. Baker, one of the appellants, was called by the appellants as a witness, and he testified, in substance, that appellee was the owner of a stud farm and was engaged in the business of importing and selling stallions for breeding purposes; that the appellants in the year 1909 purchased of appellee an imported stallion, and executed their certain notes in payment therefor, and received at the time a warranty that the horse they had purchased would be an average foal getter; that said warranty was for the term of twelve months, and if the horse was not satisfactory, after a trial of twelve months, the purchasers should have the privilege of returning the horse to appellee and selecting another one from the stables of appellee ; that the horse then bought failed to show he was an average foal getter, showing only twelve to fourteen per cent, of foals, and was returned to appellee, and another horse was, in lieu thereof, given to appellants and their notes renewed and somewhat increased in amount to equal the difference between the value of the two horses and accrued interest, and a like warranty was given to appellants as before and for a like period; that the second horse likewise failed to measure up to the warranty, in that the percentage of foals shown by him was .less than twelve per cent; that before the end of the year for which the second horse was warranted, the appellants notified the appellee of the failure of the second horse, and requested appellee to receive the horse back and give them another horse in lieu thereof, or make the warranty good in a settlement; that after considerable correspondence appellants and appellee, by appointment, met at Peoria; that after considerable conversation upon the subject, appellees proposed to appellants that they retain the horse for another year, and if it then failed to make good, appellee would make it right; that appellants expressed a doubt as to the breeding qualities of the horse, and appellee then said for them to take the horse back and keep him another year; that appellee said they thought the horse would be all right; that the horse had only been imported a year and that it sometimes took two years for such horses to get. acclimated; that appellants finally consented to make a further test of the horse, and a further extension of time was given on their notes; that after another year’s trial, the horse still failed to meet the conditions of the warranty, showing no improvement as a breeder, and notice was again given to appellee of the failure of the horse, and appellee was asked to exchange for another horse from its stables, or that it take the horse back and.make a settlement; that a meeting was had between the parties and these matters all talked over, and appellee then agreed that it would send another certain horse and exchange for the horse then held by appellants, the appellants to pay the freight one way and the appellee to pay the freight the other way and furnish a man to take charge of the horses in making the exchange; that appellants consented to this arrangement and relied upon said agreement; that the appellee failed to deliver the horse as agreed, although appellants, by letter, demanded that the delivery of the other horse should be made. This witness further stated that the note here sued upon is the total of the various notes and the interest thereon, merged into one, less $569 cash paid by appellants on the horse transactions, and that the only consideration for the note is the- horse in question and whatever warranties accompanied same; that the horses, during the time they were in the care of the appellants, received the best of care and attention.

The following questions, relative to the last horse received, by the appellants, were propounded to said witness, were objected to by the appellee and the objections sustained by the court:

Q. “I’ll ask you if you were able, ready and willing to deliver this horse back to the plaintiff, at Bushnell, Illinois, on or before March 1, 1908?”
Q. “Did you and the plaintiff afterwards meet together and adjust the difference between you on the liability of the guaranty?”
Q. “You may'state if the plaintiff afterwards agreed to ship another horse and make good this guaranty ? ’ ’
Q. “What kind of a horse was it the plaintiff said he would ship you in settlement of this matter?”
Q. “You may state if your keeping the horse and not delivering it back was with or without the consent of the plaintiff ? ’ ’
Q. “What was the difference in the values between the horse Duller Y, in May, 1910, and the horse that they agreed to deliver to you in exchange for him to settle their liability on this guaranty?”

Mr. J. F. Fleming, another of the appellants, was sworn as a witness, and, in substance, stated the same as Mr. Baker. Certain other questions were propounded to this witness, objected to by appellee, and the objections sustained by the court. They are as follows:

Q. “What was the reasonable, fair, cash value of this horse when you offered to return him to the plaintiff just before March 1, 1908?”
Q. “Why didn’t you deliver this horse back to the plaintiff on or before March 1, 1908?”
Q. “Was there any reason why you did not deliver him back on or before March 1, 1908?”
Q. “You may state, in your opinion, what was the difference between the values of the horse Duller Y, and the horse which the plaintiff agreed to exchange for bim in 1910, when you agreed to make the exchange.”
Q. “At the time of the bringing of this suit, what was the value of the horse Buller V, as a breeding horse?”

Mr. B. W. Patterson, a farmer, qualified as a witness by testifying that he was fifty-eight years of age, had handled horses all of his life and knew something about breeding horses, and he was asked the following question:

Q. “Assuming the horse Buller Y didn’t get in foal more than 'twelve or fifteen per cent, of the mares bred to him, what,, in your judgment, would be a fair cash value of the horse as a breeding horse?”

The court sustained an objection made by appellee to same.

The contract and warranty relating to the purchase of the first horse, which, by agreement of the parties, was made to extend to the second horse, is not questioned. It is contended, however, by appellants, that this agreement and warranty was, by said agreement, to extend to the second horse for the second year.

The first objection by appellants to be considered by us is, that the court erred in excluding proper evidence offered in their behalf. Under appellants’ theory of their defense, they had a warranty that applied to the second horse for the second year, and that at the end of the first year the second horse had not fulfilled the said warranty, and, that as an inducement to have appellants give the second horse another year’s trial, the warranty was, by agreement, extended. Under the pleadings in this case any fact relating to a failure of the warranty, a failure of consideration, or that supported the contention of appellants that, as a breeding horse, the horse in question was of little or no value after he failed to demonstrate that he was an average foal getter, was proper to be submitted to the jury. The questions propounded to Mr. Baker, Mr. Fleming and Mr. Patterson, as quoted above, were proper in the main, and should have been allowed to be answered and go to the jury as evidence in the c^se.

It is next urged the court erred in giving the peremptory instruction asked by appellee.

The asking of a peremptory instruction is in the nature of a demurrer to the evidence, and is equivalent to an admission upon the record of every fact and every conclusion in favor of the opposite party, which the evidence tends to prove, in other words, every fact which the jury might have inferred from it in favor of the opposite party. Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Bartelott v. International Bank, 119 Ill. 259.

A peremptory instruction should not be given in any case where the evidence tends to prove any material issue in favor of the opposite party. Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury. It should never be withdrawn from them, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it. Chicago & N. W. R. Co. v. Snyder, 128 Ill. 655.

We believe the rule to be well settled in Illinois, that a court should never direct a verdict where the evidence of the opposition, standing alone, would tend to support the issue in favor of such opposite party.

It will be seen that the evidence supporting the contention of the appellants, as permitted to be introduced, not only tends to support such contention, but it is uncontroverted.

Had the evidence been submitted to the jury which was ruled out under the objections of the appellee, the case of appellants would have been even stronger than it was made.

For instance, the facts relating to the final settlement upon the question of the warranty, was an important and proper matter for the consideration of the jury. If the appellee and appellants did, in fact, come together and agree upon the basis of a settlement, and if the appellants relied upon that and the appellee failed to comply, we cannot see any reason for excluding that evidence from the jury. It was a question of fact whether or not this difference between these litigants about the warranty, which it is admitted was originally given and under which a breach might have been declared, had it not been for the subsequent action of appellee, had been adjusted. Therefore, as the evidence tended to prove appellants’ contention, this fact should have been submitted to the jury for decision.

It was a question of fact, and should have been submitted to the jury, as to whether or not the appellee, when it induced appellants to keep the horse another year and give him another trial and promised that if he did not then make good the appellee would make it right, did not make a warranty of the horse. The whole of that agreement, under which the appellants consented to keep the horse another year and give him another trial, was proper for the consideration of the jury and should have been submitted to them.

It will be remembered that this horse was a high-priced animal, and for that reason appellants were induced to pay $569 in cash and give their notes, with security for $2,340. For any other purpose than a stallion with good breeding qualities, he probably was not worth more than two hundred or three hundred dollars. It must also be borne in mind that the only consideration for the note and payment of the money was the horse and such warranties as accompanied him.

Hence, we say, that the contract or agreement under which the appellants were induced to give the horse another year’s trial, by all reasonable intendments, implies that if the horse failed as a good breeder, appellee would make such failure good. That the horse did fail in this respect is evident from proof made showing a foal of from ten to twelve per cent.

Under our view of the case the court erred in ex-eluding proper evidence offered on the part of appellants, in giving the peremptory instruction for appellee and in refusing to grant a new trial, and for these errors the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Thomas Rhodes and George E. Rhodes, Executors, Appellants, v. Samuel Rhodes and Retta Rhodes, Appellees.

      Wills—construction of. Where testator provided in his will that in the distribution of his estate no note or other evidence of indebtedness should be charged against any of his children unless so stated thereon, and ratified the will in a codicil four years later, no recovery can be had in a suit by his estate on a note without such notation executed by one of his children two years after the making of the will, the estate being solvent.
    Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    W. G. Cloyd and Herrick & Herrick, for appellants.
    George M. Thompson, C. S. Reed and Hicks & Doss, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit brought by appellants, as executors of the last will and testament of one Thomas Rhodes, Sr., deceased, against the appellees, in the Circuit Court of Piatt County.

The declaration contained one count, and declared upon a certain note, dated July 1, 1907, for the sum of five hundred dollars, given by the appellees to the deceased in his lifetime.

To the declaration appellees filed four special pleas, to all of which appellants demurred. The court overruled the demurrer, and appellants having elected to stand by their demurrer, the court entered judgment against them for the costs, to be paid in due course of administration. The record is brought here for review by the appeal of the appellants. *

These four pleas raise but one question, and for the purpose of considering this question, it is necessary only to copy the special plea number one, of the appellee Samuel Ehodes, which is as follows:

“Special plea in bar of action by defendants alleging that Thomas Ehodes, Sen., died testate on the 7th day of May, 1910; that on June 6th, 1910, his last will and testament was duly proven and admitted to probate in and by the County Court of Piatt county, Illinois; and that by the 6th clause of said will thereof provided as follows: ‘ Sixth: It is my will that in the distribution and division of my estate by my executors, that no note, check, book-account or other evidence of indebtedness against any of my said children shall be charged against him or her, except such evidence of indebtedness in writing shall state on or in the body of such writing, that it is to be so charged against said child on such distribution and if such instrument or writing shall so state, then the amount stated in such instrument shall be charged against the distributive share of such child or children in the final settlement of my estate.’ And that the defendant, Samuel Ehodes, is one of the children referred to in the said sixth clause of the aforesaid last will and testament of the said Thomas Ehodes, Sen., deceased. Whereby the said Thomas Ehodes, Sen., deceased, released the defendants from their liability on said premises. And the defendants further say that the said note mentioned in said declaration does not state on or in the body thereof that it is to be charged against said Samuel Ehodes on distribution of the estate of the said Thomas Ehodes, Sen., deceased. And this defendants are ready to verify, etc.”

We make reference to the special plea of the other appellee, Eetta Ehodes, which alleges that she was a mere surety; that she had no interest or benefit in the money received from the said note; and to the other pleas, in the fourth of which it is alleged that the deceased, in November, 1909, made a codicil to his said will, which was made November 2, 1905, in which codicil the testator, among other things, ratified and confirmed the said will, including said sixth clause.

The question involved in the decision of this case is one as to the construction to be given to the said sixth clause of the will of the deceased, as set forth in the above plea.

The question raised here is by the demurrer of the appellants to the pleas of the appellees, and the rule is Veil settled that the demurrer admits everything in the pleas which is well pleaded. It is, therefore, to be assumed by the court that there is nothing in the will in conflict with said sixth clause, as set forth in the plea.

It is contended by the appellants that the note in question, bearing date July 1, 1907, could not have been in contemplation by the testator at the time of making the will on the second day of November, 1905, so as to prevent a collection thereof by the executors; that it was the duty of the executors to collect and distribute the same. The further contention is that the testator did not, in words, release or forgive the debt.

We cannot agree with appellants’ interpretation of said sixth clause of said will. The language of the clause as set up in the plea is as plain as the English language can state it. Its meaning is not open to two opinions. In the division of the testator’s estate the executors are told by this will that they shall not charge any of the children of the testator with any note, check or book account or other evidence of indebtedness, except where it should appear in the writing on or in the body of such written instrument “that it is to be so charged against such child.” If such instrument or writing should so state, then, in that event, the amount stated in such instrument should he charged -against the distributive share of such child or children.

As to the contention that the date of the note in question was subsequent to the date of the will, and, therefore the testator could not have had this indebtedness in mind at the time of making the will, we think it reasonable that the testator had in mind, at the time of the making of the will, the idea of rendering assistance to certain of his children, and of determining afterwards what amounts he desired to be charged as advancements to them to be deducted from their distributive shares of his estate on final settlement. But, whether this be the correct theory under which the will was drawn or not, we are not left to determine from a process of reasoning, for the allegations of the fourth plea herein filed state that in November, 1909, the- deceased made a codicil to the will in question and in and by which he ratified the said will, including the sixth clau'se thereof. This codicil was dated almost two years after the date of the note in question.

If it was at all important that the testator should have had this indebtedness in mind at the date of the making of the will, the codicil is sufficient upon that subject.

As to the contention that there was no showing of solvency of the estate, we do not deem it necessary to discuss same, as we find in the record in this case a stipulation entered into between appellants and appellees that the estate is solvent.

Entertaining, as we do, the views as above set forth as to the construction of the said sixth clause of the said will and the codicil thereto, we do not find any error in the action of the court below in overruling the demurrers to the special pleas and rendering judgment against the appellants for costs to be paid in due .course, etc., and the judgment is therefore affirmed.

Affirmed.