author: Mr. Justice Harris

text:
    Leroy L. Larsh, Administrator, Defendant in Error, v. Amy McClelland et al., Plaintiffs in Error.
    1. Executors and administrators, § 382

      —procedure, to sell realty to pay debts. The practice in cases of petition to sell real estate to pay debts is analogous to the chancery practice.
    2. Appeal and error, § 725

      —what essential to sustain decree. Under the chancery practice the party in whose favor a decree granting relief is entered, to maintain it must in some way preserve the evidence, by certificate of evidence or otherwise, or the decree must find the specific facts that were proven on the hearing.
    3. Appeal and error, § 1301

      —what not presumed. Where no right to jury trial exists, no presumption will be entertained that evidence sufficient to sustain the decree or judgment which does not appear in the record was heard.
    4. Executors and administrators, § 100

      —what is duty of administrator. The administration of estates is statutory, and the burden is upon the administrator to perform in the time and manner provided by law or give a reasonable excuse for his failure to do so.
    5. Executors and administrators, § 405

      —what constitutes laches barring sale of realty to pay debts. An administrator of an estate is guilty of laches so as to defeat an action to sell land to pay debts where, without excuse or reason he. delays for more than seven years to file such petition.

      Error to the County Court of Marion county; the Hon. Chabrles E. Jennings, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Bundy & Wham, for plaintiffs in error.
    Samuel L. Dwight, for defendant in error.

       See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

This case is presented by a writ of error sued out by plaintiffs in error as the heirs at law of Lewis F. Larsh, deceased, to reverse a judgment of the County Court of Marion county in favor of the administrator of said estate, and against plaintiffs in error, directing-sale of real estate belonging to the deceased to pay the debts of said estate. The petition was filed on the 28th day of January, 1913, and alleges that the said Lewis F. Larsh departed this life, intestate, on the 7th day of January, 1906; that the petitioner, defendant in error, was on the 17th day of July, 1880, appointed guardian, later duly appointed conservator by the County Court of Marion county of the said Lewis F. Larsh and later, by direction of said court, proceeded as administrator of the estate of said Lewis F. Larsh; that an inventory, appraisement bill and sale in said estate have been filed and that defendant in error, as such guardian, conservator and administrator, rendered to said court just and true account of the personal estate of deceased; that claims have been allowed against said estate amounting to the sum of $2,306.43, and petitioner knows of no other °just claims yet to be presented; that there had come into hands of petitioner, as conservator, rent of land and personal -estate amounting to $45, which had been paid out on claims and costs.

The petition alleged that Lewis F. Larsh was seized at the time of his death of 38 acres of land in said petition described and that said real estate was free from liens; that petitioner, as conservator and administrator, is in the possession of said real estate; that Lewis F. Larsh left as his only heirs at law, the parties petitioner and plaintiffs in error. Prayer for final hearing and order to sell the lands described in petition. A motion by plaintiffs in error to dismiss the petition on the ground that the petitioner had never been appointed administrator. Answer of plaintiffs in error admits the death of Lewis F. Larsh and his ownership of the land described in petition at the time of his death.

The answer denies the appointment of Leroy F. Larsh as administrator of said estate and further denies that there are any unpaid debts against said estate. They further deny that the sum of $2,306.43 has been allowed against said estate or any amount whatsoever. They plead statute of limitations against claims and laches in petitioning to sell land to pay debts. A general replication filed to the answer followed by hearing and decree ordering sale, from which this writ of error is prosecuted. There is no certificate of evidence preserved or filed. This writ of error must be determined upon the pleadings and decree or judgment of the court.

The practice in cases of petition to sell real estate to pay debts is analogous to the chancery practice. (Hurd’s Rev. St., ch. 3, sec. 101, [J. & A. ¶ 150.]) Harding v. Le Moyne, 114 Ill. 65.

In chancery cases the practice is well settled in this State that the party in whose favor a decree granting relief is entered to maintain it must in some way preserve the evidence, by certificate of evidence or otherwise, or decree must find the specific facts that were proven on the hearing, and it is not the duty of the party against whom the decree is rendered to preserve the evidence. Berg v. Berg, 223 Ill. 209. Ohman v. Ohman, 233 Ill. 632. Where no right to jury trial exists, no presumption will be entertained that evidence sufficient to sustain the decree or judgment not appearing’ in the record was heard, and if the evidence is not thus properly preserved the decree will be reversed upon appeal. Village of Harlem v. Suburban R. Co., 202 Ill. 301; Torsell v. Eiffert, 207 Ill. 621. 'The petitioner should aver and prove that at the time of the death of Lewis F. Larsh he was acting as his conservator; that within, one year after the death of Lewis F. Larsh he proceeded according to law to have creditors of the deceased file their claims and what claims and what amount of claims were filed and allowed within the time allowed by law. Why and what were the circumstances of waiting for more than seven years before filing a petition to sell the real estate and pay the creditors of this estate? It was not only necessary for petitioner to make these averments and proof but he must follow this by preserving in the record, by certificate of evidence, or by specific findings in the decree, the evidence. This was not done, and the record is silent upon all the questions raised by the answer.

The administration of estates is statutory, and the burden is upon the administrator to perform in the time and manner provided by law or give a reasonable excuse for his failure to do so. The fact that he, as administrator, exercised a right of possession over the lands in controversy, a right which he did not have under the law as administrator, and because his possession was not challenged by the parties entitled to the same, does not change either his responsibility or duty as such administrator. The argument of plaintiffs in error to dismiss petition, on the ground the motion was made, was properly denied.

The second assignment of error, the argument of laches upon the part of the petitioner, is well taken, because no excuse or reason was given as to why seven years had expired before he, the petitioner, proceeded to sell real estate for an individual who, during his' lifetime, did business only through petitioner as guardian and conservator. If there was any legal excuse for such delay, petitioner would know it and he should plead it.

The petition filed in this case gave no reason for delay, and the proceeding was barred by laches. There is no statutory limitation of the right to file such a petition, but it must be done within a reasonable time, and seven years has been adopted as a proper time within which application shall be made. Graham v. Brock, 212 Ill. 579. For the failure of the petition and the findings in the decree to present an excuse for laches and the failure of petitioner to preserve the evidence or facts necessary to sustain the decree; the judgment or decree of the County Court is reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    William Ufflemann, Appellee, v. St. Louis, Iron Mountain & Southern Kailway Company, Appellant.
    1. Parties, § 38

      —when objection may be raised. The question of a proper party to a lawsuit is a question continuing throughout the trial, and may be raised at any time.
    2. Parties, § 38

      —how objection taken. One of the methods for raising the question of a proper party to a lawsuit is by motion to instruct the jury, followed by motion for a new trial and exception to the judgment.
    3. Waters and water courses, § 25

      —what are remedies for overflow. The action for injury to real estate as a result of an overflow is an action for injury to the fee or reversion, or an action for loss of rental values.
    4. Landlord and tenant, § 519

      —what relation created, by farm lease. Where land is rented either for cash or a portion of the crops, the landlord has no title to the crops, growing or grown.

      5. Landlord and tenant, § 519

      —when landlord does not become a tenant in common. A landlord renting land for either cash or a portion of the crops is not a tenant in common.
    6. Railroads, § 345

      -—when landlord not proper party plaintiff in action for overflow. A landlord renting his land on shares is not a proper party plaintiff to an action against a railroad company for damages sustained to crops as a result of an overflow of water, due to insufficient outlets for a river through a constructed railway embankment.
    7. Railroads, § 345

      —what does not prevent defendant from objecting to party plaintiff in action for overflow. Where a landlord is an improper party plaintiff to an action to recover damages for injuries to crops from overflow, the mere fact that the tenant appears and testifies in the case and makes no claim for the injury does not preclude the defendant from raising the question of improper party plaintiff.
    Appeal from the Circuit Court of Randolph county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    H. L. Browning and L. O. Whitnel, for appellant; E. G. Merriman and Sprigg & Gilster, of counsel.
    A. E. Crisler, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Appellee in the year of 1895 became the owner of about 259 acres of land in Bandolph county on the Mississippi bottom. A part of this land was low and swampy. Modoc Creek enters it from the bluffs and flows in a southerly direction, emptying into the Coulee.

Appellee, shortly after he became owner, conveyed to the St. Louis Valley Bailway Company a strip through said lands from southeast to northwest for its use as a right of way. After the construction of the railway it was acquired by appellant. The construction of this railway left about 200 acres to the north and east of the right of way on what is called the hluff side of the right of way. Prior to the construction of the railroad Modoc Creek had no defined channel spreading out in time of freshets over the land.

Since the construction of the railroad Modoc Creek has been straightened, deepened and now has a well-defined channel, with what is called overflow channels, which main channel and overflow channels cross the railroad right of way. There are three openings across the railroad right of way known from the evidence as numbers 63, 64 and 65. No. 64 is the opening-in question, the one through which the waters in the main channel of Modoc Creek have to pass, afterwards flowing into the Coulee. This opening is 39 feet long, 13 feet wide and 3 feet deep. The capacity admitted to be sufficient when the waters of the Modoc are within its banks, but when in flood condition claimed to be an obstruction.

The appellee on the 14th day of August, 1913, brought his action in case against appellant in the Circuit Court and to the September term, 1913, of said court filed his declaration, consisting of two counts and the amendment thereto, which it is conceded is for injury to the rental value of the lands in question, for the years from 1909 to 1913 inclusive, by wrongfully and unlawfully maintaining- an embankment without sufficient openings therein to permit the natural flow of the waters, and that the water was thereby backed up and held upon the lands of appellee in such manner as to prevent the planting- of crops upon a portion of said lands and destroying crops of wheat, corn and hay, thereby injuring the rental value and income from the same to appellee to the damage of appellee of $2,999.

A general demurrer was filed and overruled and a trial had upon the declaration and plea of general issue. The jury returned a verdict against appellant for sum of $695.68. A motion for new trial entered and overruled. J udgnient entered upon verdict, from which judgment appellant prosecutes this appeal.

The undisputed evidence of the appellee is that during the last five years prior to the trial this land was by verbal contract rented to a Mr. Benner for one-third of everything except hay, of which appellee received as rent one-half. Before, the land was rented to Mr. Dorn under the same kind of an agreement. Appellee visited the land once or twice a year when they hauled corn or wheat to collect rent and look over the place.

Evidence was offered by appellee showing overflow at different times and injury to rental value of land. The appellant at the close of appellee’s evidence and at the close of all the evidence by proper motion asked to have jury peremptorily instructed to find for appellant, which motion was overruled and instruction refused. The evidence offered by appellant was as to conditions of land prior to building of embankment and since the building thereof, denying that the building of the embankment and the construction of the opening had in any way contributed to the injury of appellee.

Appellant asks for a reversal of this case upon the following errors:

First. That the suit cannot be maintained because appellee is an improper party plaintiff.

Second. That if suit can be maintained by the owner for permanent injury, then there was error in admitting evidence as to measure of damages.

Third. The giving of improper instructions for appellee.

The first error argued is the important proposition in this case, and as appellee says this error is an afterthought and was not argued or presented to trial court, it is necessary to refer to the record; and there is found the motion to instruct jury at close of plaintiff’s evidence followed by motion for’new trial and exception to judgment, which of itself preserves the question of appellee’s right to recover under undisputed facts. The question of a proper party to a lawsuit is a question continuing throughout the trial, and may be raised at any time. One of the methods of raising this question is by the motion for an instruction such as was made in this case followed by motion for new trial and the exception to the judgment.

The authorities recognize for injuries by overflow, an action for injury to the fee or reversion; also an action for loss of rental values. It is conceded that this is an action for loss of rental values only. That the land overflowed in this case was rented and in possession of a tenant is not disputed. The law is-well established that where land is rented for either cash or a portion of the crops the landlord has no title to the crops, growing or grown. It is also settled that he is not a tenant in common. If this is true on the same theory, the landlord cannot bring an action which is founded on the right of property or the right of possession against a third person who removes or destroys the property. The rental value in this case was in the nature of property, a portion of the crop the title to which and the right of possession was in the tenant until the rent stipulated was delivered or paid to appellee.

Appellee contends that this action being for rental value of land, a portion of which was never planted, is upon a different foundation than for destruction of crops. The evidence of appellee does not sustain this position; from this evidence there was no portion of this farm that was not rented and in possession of the tenant. Therefore this case does not come under those authorities where the landlord occupied the premises and exercised authority in the farming operations.

It is further argued by appellee that where the tenant appears and testifies in. the case and makes no claim for the injury, ‘the party sued cannot raise the question of the improper party plaintiff, and refers to the case of Toledo, St. L. & W. R. Co. v. Farris, 117 Ill. App. 108; but when this case is read with other authorities and the reasons given for it, it is against the weight of authority.

It is further argued by appellee: " That actions upon the case do not depend upon the holding by the plaintiff of legal estate in the thing for an injury to which the action is brought. It lies for an injury to the private rights of another.” This is true as a general proposition, but as applied to this case it is for an injury to crops that at the time he did not have the title nor the right of possession to, and the authorities cited do not apply.

It is said by appellee that the case of Ringering v. Cleveland, C., C. & St. L. Ry. Co., 161 Ill. App. 43, does not apply because in that case a suit brought by the tenant was sustained because the landlord had filed a release to the damages sought. However, the case was not decided by this court upon the release nor was it mentioned in the decision as having any weight upon the right of the tenant to maintain the suit. The case of Ringering v. Cleveland, C., C. & St. L. Ry. Co., 161 Ill. App. 43, is a case decided by this court, and the opinion shows a careful investigation of the authorities upon the question before us. We adopt the following language of the opinion:

“We are of opinion that by the weight of authority there is no right of action in the landlord to recover against appellant, but that such right is in the tenant exclusively. It is only where some injury results from the tort to the reversion that the landlord may recover damages. It must be an injury to the reversion of such permanent character that it would lessen the value of the property on the expiration of the tenancy.” Dicey on Parties to Actions, marginal page 340, and other authorities there cited.

From an examination of the record and authorities the question was raised upon the motion to instruct, and by the motion for new trial and the refusal of the instruction under the undisputed facts was reversible error. The sustaining of the contention of appellant upon the first proposition makes it unnecessary to dispose of the other errors argued, as it is conceded this was not a suit for permanent injury. For the error sustained the judgment will be reversed and cause remanded for further proceedings, in accordance with the views here expressed.

Reversed and remanded.


text:
    Thomas Seymour, Appellee, v. Illinois Southern Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Washington county; the Hon. Louis Bernreutér, Judge, presiding.
    Heard in this court at the Octoher term, 1914.
    Reversed with finding of fact.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by Thomas Seymour against Illinois Southern Railway Company to recover damages for personal injuries sustained as a result of defendant’s engine knocking plaintiff’s horse against him. From a judgment for plaintiff, defendant appeals.
    The issues upon which the case was heard and the evidence is practically the same as at a former hearing of the case which was appealed to this court and reported in 173 Ill. App. 326. In April, 1910, defendant was operating its railroad which passed east and west through the north limits of the city of Nashville. Depot street extends north from the. public square of said city, upon or near which defendant’s depot is located. East of this street one block, and running parallel with it, is Mill street. Defendant’s road intersects these streets, the former at or near its switch extending from west of Depot street east across Mill street and to the Hughey mills located five or six hundred feet east of Mill street. The track at some point between Depot street and the mills, curves to the northeast; this side track was used by persons transacting business with the defendant, as a place for loading and unloading freight into and out of wagons. On April 1st plaintiff was engaged in unloading stone from a car standing upon this track, and in connection with such unloading he was using a team and had in his employ a man by the name of Jones who assisted him in unloading the stone from the car onto the wagon; plaintiff was using two wagons and one team of horses. While Jones loaded one wagon plaintiff would take the other wagon loaded with stone and deliver it, come back and leave the empty wagon and change his team of horses to the loaded wagon. At five o’clock in the afternoon, and while plaintiff was away with one of the wagons, a freight train of defendant’s came in on its main line, unhooked the engine from the train and ran onto the switch and pushed the car of stone back to the mill, some six or seven hundred feet distant from where plaintiff and his assistant had been engaged in the unloading of stone from the car on defendants road. While plaintiff was gone with this wagon Jones, the assistant, had loaded the wagon that had remained, and about the time that he had completed the loading of this wagon the engine pushed the car back to the mill. While the engine was at or near the mill and around a curve, plaintiff returned with his empty wagon and finding the other wagon loaded unhooked his team, drove the horses over the tongue of the loaded wagon and after driving his horses across the tongue he was at their heads attempting to fasten the neck yoke upon the horse nearest to the track. His assistant at the same time was engaged in hooking the horses up to the double trees, and at this time the engine approached from the mill and, as it passed by, the tank beam struck the horse nearest the switch upon the rump and threw the horse forward several feet, and in moving forward the horse struck plaintiff and injured him. The wagon stood some two or three feet away from defendant’s track and far enough to clear the cars as they passed by. The pilot beam on the engine extended out over the tracks the same distance as the tender beam, and was of the same height from the ground. The pilot beam passed the horse without striking him. The fireman stated that between the the time the pilot beam passed the horse and the tender beam reached it that the horse turned his rump towards the engine, and that caused the tender beam to strike him. The horse was a grey one and grey hairs were afterwards found upon the tender beam. There was a conflict in the evidence as to the speed at which the engine was, running at that time. The witness Jones fixed it at twenty miles an hour, while the other witnésses fixed it from five to eight miles, and others from ten to fifteen miles an hour. There was also a conflict as to whether or not the employees of defendant blew the whistle or rang the bell.
    Abstract of the Decision.
    1. Railroads, § 528

      —when not required to give signal for benefit of person unloading car. A railroad company owes no statutory duty to a person who is lawfully alongside its track for the purpose of unloading a car, to ring the bell and blow the whistle of an approaching engine, since the statute requiring such warning was enacted for the protection of persons upon the public highway and about to cross the railroad or enter upon its crossing.

      R. J. Goddard and J. A. Watts, for appellant.
    T. M. Webb and G. C. Borders, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Railboads, § 516 —what duty owed to person on premises for purpose of unloading car. A railroad company owes a person who is lawfully alongside its track for the purpose of unloading a car, the duty to not wantonly or wilfully or negligently injure him.

3. Railboads, § 528 —when failure to signal not an element of wantonness. The failure to give warning of the approach of an engine by the sounding of the bell and blowing of the whistle is of no weight in determining the question of wantonness in injuring a person lawfully alongside the tracks for the purpose of unloading a car, where the railroad company owes no duty to such person to give such warning.

4. Railboads, § 528—when failure to warn may he considered a question of due care. The failure to give a warning as to the approach of an engine to one lawfully alongside a railroad track for the purpose of unloading a car is of weight in determining the question of reasonable care upon the part of the railroad company only when the failure to give such warning contributes to the injury.

5. Railboads, § 527 —when evidence insufficient to show negligent operation. Evidence in an action against a railroad company for personal injuries sustained as a result of an engine of defendant knocking plaintiff’s horse against him while he was lawfully engaged in unloading a car on a side track, held insufficient to sustain a finding that the employees of defendant were guilty of negligence in the operation of the engine.


text:
    T. P. Fristoe, Appellant, v. Ardimus Boedeker, Appellee.
    1. Torts, § 12

      —when violation of law cannot form basis of cause of action. A court will not lend its aid to one who founds his cause of action upon an illegal or immoral act.
    2. Negligence, § 48

      —what is proximate cause of injury while hunting on prohibited, land. The proximate cause of the injury to one who enters in company with another upon prohibited land in pursuit of a covey of quail and is shot as a result of the careless act of his companion in- discharging his shotgun towards him and at the covey of quail, is the failure to permit the quail to retreat to the premises where the law protected them.
    Appeal from the Circuit Court of Randolph county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1915.
    Sprigg & Gilster and Charles W. Morrison, for appellant.
    A. D. Riess and H. Clay Horner, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The first count of the declaration in the case charged in substance: That the appellee on the 18th day of November, 1910, in the county of Monroe, State of Illinois, with force and arms made an assault upon appellant and shot off a certain shotgun then and there loaded with gunpowder and lead bullets at and against appellant, and thereby and then and there shot and wounded appellant in so grievous a manner that his life was despaired of; and by reason of such shooting and wounding appellant became sick and his right eye was thereby entirely destroyed and the sight thereof lost and the left eye pierced and injured, and the sight thereof almost destroyed, and appellant was made sick and disordered and so continued from that time hitherto, and incapable of transacting his business affairs during that time; and was obliged and did lay out and expend large sums of money, $1,000, in endeavoring to be cured of the wound and sickness aforesaid; and other wrongs the appellee to appellant then and there did to the damage of appellant of $5,000.

The second count of the declaration charges that at the same time appellee with a shotgun then and there carelessly, negligently, wilfully and wantonly inflicted the wounds as described in first count upon appellant, in and by which he was rendered incapable of following his profession of dentistry from which he derived an income of $3,000 per year, and from transacting his other business, spending large sums in and about being cured, suffering continuous and excruciating pain from that time hitherto, other wrongs done to the damage of appellant of $5,000, wherefore he brings suit, etc.

Appellee to these two counts of declaration filed his plea of not guilty.

There is no dispute about the facts in this case material to the issues. The appellant, a single man 40 years of age, was a dentist by profession and had" been for about four months previous to the injury, on the 18th day of November, 1910, residing and practicing his profession in the City of Bed Bud, Bandolph county, Illinois. That at the time of injury his eyesight was good, and his general health good. Since that time he has been practically blind and unable to follow his profession or to follow any business. That at the time of the injury appellant had an earning capacity of $3,700 per year. Appellant had been acquainted with appellee four months. Appellee was a man 21 years of age. By agreement appellant and appellee in the automobile of appellee, each with a shotgun, started for a hunt. That they drove near to the place where the accident occurred, left the automobile and entered a stubble field. That they had both been in that vicinity at least once before on the same mission and across the premises where the injury occurred at that time. That on the day of the injury they were following a flock of quail in this field going north, about twenty yards apart, appellant to east of appellee, at all times in plain view and hearing distance of one another. A quail flew up in front of appellee flying to east and towards appellant. Appellee fired, a number of shot entering the face of appellant. That appellant from that time has been blind, and has suffered considerable pain, and after employing the best medical skill has been unable to regain his eyesight.

The only difference between the parties as to what was said or done is that appellant says when they were ordered off of one farm appellee says, “we will go back and hunt where I have permission,” and appellee says he never said that.

It is stipulated that neither appellant nor the appellee had permission. of the landowners, agents or occupants where the accident occurred to hunt upon that land.

It is true that the declaration charges appellee with wilfully and wantonly shooting appellant, but there is no evidence in the record to support the charge; and the sole ground upon which it is sought to base a right of recovery is that appellee was careless and negligent in the handling of the shotgun which caused the injury to appellant.

The court at the close of all the evidence instructed the jury to find fqr appellee. The action of the court under the assignment of error and argument of counsel may be discussed under two propositions:

First. Was appellant and appellee at the time of the injury violating a public law?

Second. Was appellant’s violation of the law the cause of the injury?

It is conceded by appellant that he was at the time of the injury violating chapter 62, secs. 28 and 29 (J. & A. 5930, 5931) of the Statute of the State of Illinois. Section 28 (J. & A. j[ 5930): “It shall be unlawful for any person or persons to hunt, with gun or dog, or allow their dogs to hunt within or upon the lands or premises of another, or upon the water flowing over or standing on said lands or premises, without first obtaining from the owner, agent, or occupant of said lands or premises, his, her or their permission so to do.” Section 29 (J. & A. jf 5931) makes such an offense a misdemeanor and provides the penalty for violation.

This statute, as has been said by our Supreme Court in the case of People v. Payer, 246 Ill. 382, has a tendency to lessen the number of hunters, capable and incapable, experienced and,inexperienced, who without the provision would assume the right under their licenses to go over the lands of others, killing and destroying all game. The primary purpose of the statute is to protect game.

From the undisputed evidence in this case appellant and appellee left Bed Bud on the morning in question bent upon the destruction of game, and when they arrived at or near the place of the injury saw this covey of quail fly and alight on the premises where the injury occurred, and by understanding and common design they entered the premises, unlawfully for the express purpose of securing the game, even though it be in violation of the law.

It does not place appellant in any better position under the law to say just prior to the entry that appellee said, “we will go where I have permission,” because appellant is charged with knowing that he did not have permission and that appellee was neither the owner, occupant or agent to give him permission; that he entered in violation of the law and by stipulation it appears appellee entered in the same manner.

If appellant and appellee had not been in pursuit of game and if they had not discovered the object of their hunt, this accident would not have occurred. The game was discovered before they entered the premises, and both appellant and appellee knew it to be on the premises they were entering in violation of law. notwithstanding such knowledge they entered and took their positions, as they were in pursuit of game in violation of law. The causative connection between the violation of the law and the injury are complete. The proximate cause of the injury is the failure of appellant and appellee to permit the quail to retreat to the premises where the law protected them until permission was secured from the persons authorized by law to give it, which the court has no right to presume would have been given.

A number of authorities have been cited by appellant to the effect that there must be a connection between the violation of the law and the injury. Those argued and discussed at length are: Haumesser v. Central Brewing Co., 158 Ill. App. 648; Gross v. Miller, 93 Iowa 72; Sutton v. Town of Wauwatosa, 29 Wis. 21.

The case in 158 Ill. App. 648, supra,, was a suit for injuring a horse upon a public street where the city ordinance provided that no horse was to be left upon the street without being hitched. The horse injured was upon the street where he had a right to be but was not hitched. The case was determined by this court upon the ground that under the facts in that case the fact that the horse was not hitched was not the proximate cause of the injury. It if were possible to make that case an authority in the case at bar, suppose there had been a valid ordinance that no horse-was to be left by its driver upon the public street, the fact that the horse was upon the street without driver would be the proximate cause of injury.

The Iowa case supra, is a case where an injury occurred while hunting on Sunday, and to hunt on Sunday being in violation of the law, a question of time only.

The Wisconsin case supra, is a case of driving cattle on Sunday in violation of law. An injury by breaking through a defective bridge, a question of time only.

Without prolonging this opinion where it has been held there was no causative connection between the violation of the law and the injury, it was where the violation of law was as to time, or, if place, the cause of the injury was only remotely connected with the violation of the law, but never where the injury occurred while two people by common design and purpose were violating the law. The case comes clearly within the holding of our Supreme Court in the case of Gilmore v. Fuller, 198 Ill. 130, and the rule of law applicable thereto quoted with approval: “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. ’ ’

A further illustration of the rule which refuses redress to one participating in a wrong may be had where two persons are engaged in an unlawful enterprise or action, and, prosecuting it, one is injured by the negligence of the other. What the plaintiff must ask, therefore, must be this: That the law shall relieve him from the consequences of his disregard of the law; and this, as already stated, it will refuse to do. .

The appellee was not the owner, occupant or agent of the land where the injury occurred, and even though he might have permission to hunt thereon, could not not have given appellant any right to hunt on those premises. It cannot be said he was misled into violating a law that he knew appellee could not give him permission to violate.

The appellant requires in this case the aid of an illegal transaction to establish his case, and it makes no difference, when this appears, if it so appears from the whole evidence, the defense is allowed not for sake of appellee, but of the law itself.

The ruling of the Circuit Court in giving the peremptory instruction was proper, and the judgment will be affirmed.

Affirmed.


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    E. H. Hostettler, Appellee, v. Asa Mushrush and Henry Paddick, School Directors, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by E. H. Hostettler against Asa Mushrush and Henry Paddick, school directors of district number sixty-eight of the county of Lawrence and State of Illinois, for damages for a breach of contract of hiring. From a judgment for plaintiff, defendant appeals.
    This district had constructed a schoolhouse of two rooms and prior to the year 1913 had employed two teachers. Sometime during the month of June, 1913, plaintiff made application to the directors for position as teacher. After his application was received a meeting of the directors was held in the district, the time of which meeting is a matter of dispute. All the directors were present, and no other person except plaintiff and directors were present. Plaintiff contended that he was hired by the board as principal to teach only the advance grades. The two directors named as defendants contended he was hired to teach the entire school. The amount to be paid was $82.50 per month, and plaintiff was to do his own janitor work for a term of five or six months. The minutes of this meeting were not written until shortly thereafter, and no written contract at that time was made and signed. Plaintiff contended that the meeting was on the láth day of June, 1913. Defendants claimed that the meeting was on the 17th day of June, 1913; that afterwards in July, 1913, the hoard met and approved the minutes; that plaintiff was not present at this meeting; that about September 2, 1913, the board and plaintiff again met, when the dispute was as to whether plaintiff was hired as principal and to teach the advance grades, or whether he was employed to teach the entire school. The defendants contended for the latter and the plaintiff and one director contended for the former, as the contract. This dispute continued from that time to September 22, 1913, without an agreement being reached. Another teacher was employed after plaintiff had refused to enter into the contract contended for by two of the directors, and defendants, refused to receive and accept the services of plaintiff as contended for by him.
    The issues of fact were whether plaintiff was employed by defendants to teach as principal the higher grades, or was he employed to teach the entire school. Evidence was offered on this issue; plaintiff and Director Mills for the first proposition, and the defendants for the second proposition. The court refused to admit in evidence the letter of Miss Weaver, a witness for plaintiff and an applicant for teacher in the primary room., Miss Weaver had testified to a conversation at the home of Mrs. Diddle with Henry Paddick in which she said that Mrs. Diddle said that she heard that he had hired Mr. Hostettler for the advanced room, and he said, “Yes, I think we have done well,” etc. Mr. Paddick denied that he told Mrs. Diddle they had hired a principal and, as tending to corroborate his statement, as to what occurred and to discredit the evidence of Miss Weaver, produced and offered in evidence a letter from Miss Weaver to him of date July 17,1913, and identified by witness Weaver, a letter written and received after this meeting at the Liddle home, which letter is, in substance, as follows :
    Abstract of the Decision.
    1. Instructions, § 16

      —when must he harmonious. A series of instructions must be harmonious and not misleading.
    2. Instructions, § 16

      —when erroneous for laclo of harmony. Instructions constituting a series, in an action by a school teacher against a school district for breach of a contract of hiring, and in which the issue was as to whether plaintiff was to be hired to teach the whole school or only the advanced grades as principal, one of which tells the jury they must find for the defendants unless the plaintiff proved that he was employed to teach the principalship, another of which tells them that plaintiff may recover if he has proven that he was employed to teach the school, another of which tells the jury that one promise is a good consideration for another, and that the plaintiff may recover if he proved that he was employed to teach the principalship, held inharmonious and misleading.

      ‘ ‘ Henry Paddick,
    Chauncey, Ills.
    Dear Sir:
    Have you hired a teacher for the primary room for this winter or is it your intention to have only one teacher? Please let me know as soon as possible.
    Respectfully,
    Mae Weaver,
    Clay City, Ills.”
    The evidence of this conversation was admitted, but the objection to the letter was sustained.
    Counsel for defendants complain of the judgment as being contrary to the evidence because plaintiff could have secured another school, but that he made no effort and remained on his farm, and attended to his private affairs, and for this no deduction was made by the jury.
    McGaughey & Tohill, for appellants.
    George W. Lackey and B. O. Sumner, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

3. Schools and school districts, § 174 —what evidence admissible in action for breach of contract to hire teacher. Where the question in issue in an action by a school teacher against a school district for damages for breach of a contract of hiring was as to whether the plaintiff was employed to teach as principal of the higher grades or to teach the entire school, and In which the testimony of a witness for plaintiff that one of the directors had told a certain person in her presence that he had hired plaintiff for the higher grades was denied by such director, a letter written subsequently to such conversation by plaintiff’s witness to such director inquiring as to whether he had hired a teacher for the primary room or intended to have only one teacher, was admissible as going to the credibility and weight to be given to the evidence of such witness.

4. Master and servant, § 42 —what is remedy for breaeh of contract when no services performed. Where no services are performed under a contract of hiring, the action must be for a breach of the contract.

5. Master and servant, § 52 —what is measure of damages for breaeh of contract of hiring. The measure of recovery for breach of a contract of hiring, where no services have been performed, is the wages to be paid, less any sum actually earned or which might have been earned by the exercise of reasonable diligence in- seeking other similar employment.

6. Master and servant, § 47 —who has burden of proof in action for breach of contract of hiring. The burden of proof in an action for breach of contract of hiring, no services having been performed, is upon the defendants to show that plaintiff did earn, or by reasonable diligence could have earned, wages in other similar employment.


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    William J. Baxter, Appellee, v. City of Venice, Appellant
    1. New trial, § 83

      —time for motion. It is not necessary to make a motion for a new trial before entry of judgment where a jury is waived by agreement and trial is had before the court.
    2. Municipal corporations, § 100

      —when ordinance must be pleaded. When a cause of action is predicated upon a city ordinance, such "ordinance must be pleaded.
    3. Municipal corporations, § 105

      —when ordinance inadmissible. An ordinance is not admissible in evidence in an action predicated thereon, where such ordinance has not been pleaded.
    4. Municipal corporations, § 83

      —how ordinance prescribing duties of city attorney construed. An ordinance prescribing as duties of a city attorney such as are usually performed by a licensed attorney must be reasonably construed.
    5. Municipal corporations, § 118

      —when city attorney must be a licensed attorney. An ordinance which prescribes as duties of a city attorney those ordinarily performed by a licensed attorney must be construed as requiring the selection of a duly licensed attorney.
    6. Contracts, § 129

      —when illegal. Any act which is forbidden by either common or statutory law cannot be the foundation of a valid contract.
    7. Municipal corporations, § 118

      —when city attorney not entitled to recover salary. An unlicensed attorney who has been appointed as a city attorney is not entitled to recover the salary provided by ordinance where the ordinance prescribes duties such as are performed only by a licensed attorney.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1914.
    ‘Reversed with finding of fact.
    Opinion filed May 1, 1915.
    J. M. Bandy, for appellant.
    C. H. Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The appellee, January 2, 1914, filed his declaration in the Circuit Court, in assumpsit, consisting of one count averring that appellant city owed him for labor and services before that time bestowed the sum of $200, and a like sum for salary as city attorney for the city of Venice. A copy of account was attached thereto.

To this declaration appellant first filed plea of nonassumpsit, and afterwards a plea denying liability because at the time his cause of action, under his declaration, accrued and since appellee was not a licensed attorney. The appellee demurred to the last plea. The court of its own motion ordered the last plea stricken and ordered that appellant might offer, under the plea of general issue, any evidence that would be proper under any proper special plea. Upon the issues the parties waived a trial by jury. The court found and entered judgment in favor of appellee for the sum of $100.

The facts as they appear from the record are brief: Appellee at the April election in the year 1913 was elected city attorney of the city of Venice. That he was not at the time nor has he since become a licensed attorney. That under ordinance number 13 introduced in evidence by appellee, the city attorney’s compensation was fixed at $200 per year. Ordinance number 11 introduced by appellee in evidence prescribes the duties of city attorney, who is to represent the city as its attorney and counselor under the direction of the mayor and city council. That a short time before the election April, 1913, the city council passed and the mayor approved an amended ordinance introduced in evidence by appellant as ordinance number 159, whereby the compensation of city attorney was fixed at $100 per year. May 1,1913, appellee qualified as city attorney by taking oath of office, and was informed by the mayor that he could not draw salary and that he could not do anything for the city, that he was not a licensed attorney. The appellee in the trial insisted upon a recovery on the ground that by reason of his election and taking the oath of office he was entitled to recover under ordinance number 13 the sum of $100 for six months’ salary. The claim for services rendered or for labor performed under the declaration, other than for the salary provided for under ordinance number 13, was abandoned. The appellant objected to the introduction in evidence of ordinance number 13 because it had not been pleaded, and at the close of the evidence offered by appellee, submitted to the court a proposition of law to find for appellant, which was by the court refused.

The court at the close of all the evidence held as a proposition of law that appellee was entitled to recover, and entered judgment accordingly. Appellee insists this appeal should be dismissed because prior to the entry of judgment appellant did not make a motion for new trial. This was not necessary where a jury had been, by agreement, waived and a trial had before the court.

Appellant insists upon three propositions to reverse this case:

First. That there could be no recovery under an ordinance that he did not plead.

Second. That he not being a licensed attorney could not recover salary provided by ordinance for city attorney.

Third. That ordinance number 159 was duly passed and was in full force and effect and that under that ordinance appellee was limited to a salary of $100 per year.

This cause of action was predicated upon an ordinance of the city of Venice and the ordinance must be pleaded. People v. Heidelberg Garden Co., 233 Ill. 291; Flynn v. Chicago City Ry. Co., 250 Ill. 460. This ordinance was not pleaded and, under the declaration, was not admissible in evidence.

Under the second proposition there is no dispute upon the question that appellee was not a licensed attorney. The services he was to render belonged to that class of persons. If the laborer is to be worthy of his hire the law fixes his qualification at being a licensed attorney, and not coining within that class, he cannot recover. It is true the statute, in so many words, does not make the qualification of city attorney a licensed attorney. The statute must have a reasonable construction in that behalf, and when such a construction is so applied, the words “City Attorney” are used in the sense of licensed attorney. Donaldson v. Village of Dieterich, 247 Ill. 522.

The ordinance number 11 prescribes as duties of city attorney such as are usually performed by a licensed attorney, and for which services only a licensed attorney could lawfully collect; that it was a violation of the statute for appellee to hold himself out to the public something that he was not, a licensed attorney, and the general rule that any act which is forbidden by either common or statutory law cannot be the foundation of a valid contract. Union Nat. Bank of Chicago v. Louisville, N. A. & C. Ry. Co., 145 Ill. 208; Douthart v. Congdon, 197 Ill. 349. Therefore to qualify as city attorney appellee must be a licensed attorney, and because he was not a licensed attorney he, by disqualifying, entered into a contract under the ordinances introduced in evidence to perform a service and receive a salary therefor which was forbidden by law, and he cannot recover. As the judgment will have to be reversed for the reasons aforesaid, the court’s ruling on proposition 3 is immaterial. The judgment is therefore reversed with finding of fact.

Reversed with finding of fact.

Finding of fact to be incorporated in the judgment: We find that William J. Baxter was not in April and May, 1913, nor from that time hitherto a licensed attorney; that to qualify, act and collect salary as city attorney he must be a licensed attorney.


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    Ficklin Brassier, Appellee, v. Ed. S. Wilson, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Richland county; the Hon. William H. Geeen, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Abstract of the Decision.
    1. Appeal and ebbor, § 1327

      —what presumed in favor of judgment. Every legal presumption will be indulged in favor of a judgment.
    Statement of the Case.
    Action by Ficklin Brassier against Ed. S. Wilson for the value of a heifer alleged to have been lost while being pastured for hire by defendant for plaintiff. From a judgment for plaintiff, defendant appeals.
    Plaintiff testified to what one Daugherty did in relation to defendant’s business in 1911, to a conversation in the fall of 1913 with defendant in Daugherty’s presence about renting of pasture from Daugherty, amount due, and that defendant said it was all right, the keeping of a book of the pasturing, and plaintiff’s seeing this book with the account against him as to the heifer in question and as to when she was taken into the pasture. This conversation was not denied by either defendant or Daugherty. Defendant admitted that he had kept such a book of account, but at the time of the trial the book was lost.
    Lynch & Martin, for appellant.
    H. G. Morris, for appellee.

       See Illinois Notes Digest, Vols. XI to XII, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Appeal and ebrob, § 365 —necessity for preserving errors. Before a judgment will be reversed or set aside, the party complaining must preserve and present in the manner provided by law the errors upon which he relies to overthrow the same.

3. Appeal and ebrob, § 1712 —when error considered waived. Errors not urged or argued are deemed upon appeal to have been waived.

4. Evidence, § 476 —how preponderance determined. The preponderance of evidence is not necessarily determined alone by the greater number of witnesses, but where there are the same number of witnesses testifying on each side, there may still be a preponderance on one side or the other.

5. Animals, § 10 —when agistment contract established. An implied contract to pasture an animal for hire through an agent and to safely return it is established by a preponderance of the evidence in action to recover for the value of _ the animal which had been lost while being pastured by defendant, where the evidence did not simply rest upon a bare statement by one party and a denial by the other, but was also based upon a conversation between plaintiff and defendant and defendant’s agent relative to the renting of the pasture, and the amount due, plaintiff further testifying that defendant said it was all right, and that he saw the book of account, neither defendant nor his agent denying the conversation, nor that a book was kept, but that the book was lost.

6. Animals, § 10 —who has burden of justifying loss of animal under agistment contract. The burden of proof is upon one receiving an animal under an implied contract to pasture the animal for hire and to safely return it, to prove that the loss of the animal occurred without his fault.


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    Granite City Lime & Cement Company, Appellee, v. Hanover Fire Insurance Company of New York, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit by the Granite City Lime & Cement Company against the Hanover Fire Insurance Company of New York, upon a policy of fire insurance covering certain machinery while located and contained in a building on Lot 1, Block 94, of Granite City, and not elsewhere.
    . The evidence showed that the property described was subsequently removed by plaintiff from the location mentioned in the policy to a building in Block 43 of Granite City. The evidence whether such removal was consented'to by the defendant’s local agent was conflicting. Plaintiff claimed that on or about the date of the removal of the property and prior to its destruction by fire, it notified defendant’s agent who issued said policy that the property had been removed and was then located and situated on Block 43, and was advised by the agent that in consideration of the plaintiff foregoing its right to cancel the policy and to have the unearned portion of the premium returned, that the defendant would consent to the removal of the property to the new location, and that that policy would then cover the property the same as in the original location, and that defendant through its agent would indorse such consent, authority and agreement upon the policy; that the policy was in the possession of defendant’s agent at Granite City, and was left with him for the purpose of making such indorsement, and that the plaintiff relied upon defendant’s agent to make the indorsement thereon; that the policy was never returned to plaintiff; and that up to the time of the fire, so far as plaintiff was informed, the necessary indorsement had not been made as agreed upon, and that the policy continued in the possession of defendant.
    Abstract of the Decision.
    1. Insurance, § 655

      —when copy of policy admissible in evidence. A copy of fire insurance was properly admitted in evidence in an action for a loss, under a declaration alleging that the policy was in the possession of the defendant, who failed to produce it on notice, where the plaintiff’s evidence tended to show that the original was left with the defendant’s agent, and that it could not be found among the plaintiff’s effects after diligent search.
    2. Insurance, § 620a

      —when evidence admissible of rate in changed location, in an action to recover on a policy of fire insurance, where the defense was the removal of insured chattels from a designated location without the consent of the insurer, the admission, on behalf of the plaintiff, of evidence that the rate was lower in the new location, held harmless error.
    3. Insurance, § 653

      —evidence as to amount of loss. In an action on a policy of fire insurance, a person employed as secretary and treasurer by the insured for eleven years, held competent to testify as to what goods were destroyed, and their value.
    The defendant denied liability for destruction of the property in Block 43. A trial resulted in a verdict for plaintiff, and judgment for $1,248.33, from which the defendant appeals.
    Warnock, Williamson & Burroughs and Barger & Hicks for appellant; C. O. Carlson, of counsel.
    Terry, Gueltig & Powell, for appellee.

       See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

4. Insurance, § 653 —when salvage value of destroyed property does not affect amount of damage. In an action on a policy of fire insurance, the evidence held to show that destroyed goods had no salvage value which should have been taken in consideration in fixing damages.

5. Insurance, § 659a —sufficiency of evidence in action of fire insurance policy. A request, to peremptorily instruct the jury to find for the defendant held properly refused in an action on a policy of fire insurance, where the evidence tended to show that the insurer consented to the removal of insured chattels to the building in which they were destroyed.

6. Appeal and error, § 1411 —when judgment on conflicting evidence not disturbed. When the evidence is conflicting the Appellate Court will not disturb a judgment because against the weight of the evidence, where the jury gave credit to the testimony of one party’s witnesses rather than to those of the other party, which the trial court affirmed by denying a motion for a new trial.

7. Appeal and error, § 1514 —-when improper argument not reversible error. An improper argument of the plaintiff’s counsel to the jury does not constitute reversible error, where it is evident that it did not influence the jury in awarding damages.

8. Instructions, § 151 —when refusal of requested instruction not error. The refusal of instructions requested by a party is not reversible error, where other instructions given at his request substantially cover the same ground, although not as favorable to him as those refused.

9. Insurance, § 702 —when interest recoverable on policy. Interest is recoverable on a policy of fire insurance where the insurer does not pay a loss within sixty days after receipt of proof of loss as stipulated in the contract.


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    Village of Bolton, Appellant, v. Oliver Lewis, Appellee.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Suit brought by the Village of Bolton against Oliver Lewis for violating an ordinance of that village by selling intoxicating liquors. A trial resulted in a verdict finding defendant not guilty, and the plaintiff appeals.
    The evidence showed that the defendant" had. been engaged in the drug business in Bolton about fifteen years; that defendant had within eighteen months prior to the filing of the complaint sold to the public generally, without prescription, in one and three ounce-bottles, tincture of ginger, composed of from ninety to ninety-five per cent alcohol and the balance ginger, which in its pure state was intoxicating, and that when it was diluted in water if taken in sufficient quantities it was intoxicating; that tincture of ginger is a medicine recognized in the United States dispensatory; that some persons who purchased it from the appellee used it medicinally and others as a beverage; that defendant had limited its sale to certain persons to a three ounce bottle per day, and that defendant had heard it rumored that certain persons were using it to excess as a beverage.
    Denison & Spiller, for appellant; Jacob Hayes of counsel.
    Neelt, G-allimore, Cook & Potter, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 130 —burden of showing sales of tincture of ginger not medicinal. The burden is on the prosecution, in an action for violating an ordinance by selling as a beverage tincture of ginger, to prove by the clear weight of the evidence that sales were made by the defendant or his agents under such circumstances which the former, if acting in good faith, was bound to know that the purchasers intended to use such tincture as a beverage and not medicinally.

2. Intoxicating liquors, § 147 —sufficiency of evidence to show sale of tincture of ginger as beverage. Evidence that the defendant was told five or six year$ prior to a prosecution for selling tincture of ginger as a beverage, that three persons were using it to excess, and that he had heard rumors to the same effect as to others, and that thereafter he refused to sell to them, does not prove knowledge that other purchasers bought it for unlawful purposes.

3. Intoxicating liquors, § 134 —admissibility of evidence that purchasers were using tincture of ginger as beverage. In a prosecution for violating an ordinance by selling tincture of ginger as a beverage, evidence that five or six years before the seller was informed that three persons were using it to excess, and that he heard a rumor to the same effect regarding others, may be considered by the jury in connection with all of the other evidence, in determining whether the defendant made sales in good faith for medicinal purposes only.

4. Appeal and error, § 1411 —when verdict on conflicting evidence sustained. Where there is a conflict in the evidence, a verdict will not be disturbed on appeal, although apparently against the weight of the testimony, if the facts and circumstances by reasonable intendment sustain ti^e verdict.

5. Intoxicating liquors, § 147 —sufficiency of evidence to sustain verdict for defendant for selling tincture of ginger as beverage. The evidence held sufficient to sustain a verdict for the defendant in a prosecution for selling tincture of ginger as a beverage in violation of an ordinance.

6. Intoxicating liquors, § 131a —evidence to prove sales of tincture of ginger to drunkard. Evidence that a person for whom tincture of ginger was purchased was a drunkard, is not admissible in a prosecution for selling such compound for use as a beverage in violation of an ordinance, where it does not appear that the seller knew for whom it was intended.

7. Appeal and error, § 1507 —when repetition of objectionable questions not reversible error. A judgment will not be reversed because of the conduct of counsel in following a line of examination after objections have been sustained thereto, where the court is not of opinion that the verdict was affected by such improper conduct.


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    Mary F. Rotes, Appellant, v. Thomas Phelps, Administrator, Appellee.
    1. Executors and administrators, § 184

      —when widow’s award barred by antenuptial settlement. An antenuptial contract under which a widow took possession of property of her deceased husband, held to bar her right to her widow’s award.
    2. Husband and wife, § 29

      —burden of showing fairness of antenuptial settlement. Since the parties to an antenuptial settlement occupy a confidential relation towards each other, the party seeking to sustain the agreement has the burden of proving its fairness, and that the intended wife had full knowledge of the extent and value of the intended husband’s property.
    3. Husband and wife, § 29

      —burden of showing fairness of antenuptial settlement. The rule that one seeking to sustain an antenuptial settlement has the burden of showing its fairness, and that the intended wife had knowledge of the extent and value of the intended husband’s property, does not apply to an executor who in his official capacity relies on such a settlement to defeat a claim for a widow’s award.
    4. Estoppel, § 55

      —when widow estopped from attacking ante-nuptial settlement. A widow who takes possession of property under an antenuptial settlement is estopped from insisting on errors that might have prevailed had she refused to accept under the settlement.
    Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    James C. Courtney, for appellant.
    John W. Browning and Charles Durfee, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The appellee filed his petition in the County Court of Pope county to the March term, 1914, as administrator of the estate of John Botes, deceased, setting forth the appointment of appraisers in said estate, their appraisement of personal property and their estimate of the widow’s award, $750. The appellee, by said petition, objected to allowance of widow’s award because the same was barred by a marriage agreement made between John Botes, deceased, and appellant prior to their marriage. That there is a dispute between the widow, appellant, and the heirs of John Botes, being his children and grandchildren.

Petition asks for a construction of the antenuptial agreement and for directions as to payment of the widow’s award. A copy of the antenuptial agreement was attached to petition. The County Court entered judgment that the widow had by her antenuptial agreement released all claim to an interest in the estate as widow of John Botes, deceased. An appeal was taken to the Circuit Court and a decree entered on the 5th day of May, 1914, sustained the finding of the County Court in sustaining objections to allowance of widow’s award. Exceptions were taken to this decree by appellant and this appeal prosecuted claiming that she, appellant, is not bound by the antenuptial agreement.

The facts material to a decision of this case are: That John Botes and appellant, a widower and appellant a widow, were on the 17th day of November, 1908, married and from that time to the death of John Botes, January 20,1914, lived together as husband and wife; that on the day of the marriage, the 17th day of November, 1908, but prior to the marriage John Botes and appellant entered into the antenuptial agreement introduced in evidence for the consideration of one dollar and other good and valuable consideration. It further provided that after the consummation of said marriage and during the continuance thereof, each of the parties should possess, enjoy and dispose of the property owned by him or her the same as if said marriage had never occurred. The parties further agreed, in consideration of the marriage and other covenants, agreements and considerations in said contract mentioned, that he, John Botes, would give Mary F. Phelps $1,000 in lieu of all her claims, interests, estates, dower, homestead' and „award in and to any of his property at his death to be her sole and separate property forever; and further that he will give Mary F. Phelps, after she becomes his wife, the property and dwelling now located on Lot No. 67, Town of G-olconda, Illinois, to have and to hold as her homestead during her natural life or widowhood, either in case of death of John Botes or of the separation of parties ; that the $1,000 provided for by said, contract was paid by John Botes to appellant, and the real estate provided as a homestead worth about $2,500, was occupied by the parties during the lifetime of John Botes and a part of it by appellant since his death. Appellant has since the death of John Botes exercised the right of possession over all of the real estate mentioned in agreement, rented and collected the rent from what she was not occupying. There were no children by this marriage. The parties objecting through the administrator to this award are the children and heirs at law of children of a former marriage. The personal estate of John Botes, at time of his death, amounted to about $11,600, which was all his property aside from the real estate described in the agreement. The appellant presents errors in the trial of this case that are not material to this controversy.

The parties to an antenuptial agreement entered into prior to the marriage and áfter a promise of marriage do occupy a confidential relation towards each other, and in order to sustain the agreement the party seeking to sustain the same has the burden of proving that the agreement was fairly entered into and that the intended wife had full knowledge of the value and amount of the property owned by the intended husband. This is the law and a rule of evidence that does not apply to an offer of such a contract in evidence by an administrator, who is objecting in his official capacity to a claim of the widow on the ground that the widow had not only entered into such an agreement, but who had after the confidential relation ceased to exist, namely the death of John Botes, with the opportunity for full knowledge of the value of his estate, ratified the contract by possession of the property under the contract, renting and collecting rents therefrom. The contract was properly admitted in evidence, and under the evidence of ratification the evidence of whether or not the contract was entered into with full knowledge on part of widow of the value of her intended husband’s estate became immaterial.

She did enter into the contract, lived with him until he died, took possession of all the property under the agreement, and after his death when the confidential relation no longer existed, exercised possession and control over said property, and makes no offer then or now to release same and turn it back to the estate; She is bound by such acts and has waived and is es-topped from now insisting upon errors that might have prevailed had she refused to accept under the agreement and shown a willingness to surrender all her benefits or advantages under the antenuptial contract. She is not entitled to both. Upon the death of her husband, she must elect to retain the property received by virtue of the settlement or return the same and take as widow under the law. Hieser v. Sutter, 195 Ill. 382.

We find no error in the finding and judgment of the Circuit Court and it is affirmed.

Affirmed.


text:
    Charles Mitchell, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    1. Commerce, § 4

      —when employee engaged in interstate. ■ An employee is engaged in interstate commerce when he is directly engaged in work on some of the instrumentalities of interstate commerce, such as repair of the road, cars, engines or trains, or in recovering trains engaged in interstate commerce.
    2. Commerce, § 4

      —when railroad cleric not engaged in interstate. A railroad clerk, who is injured on railroad tracks while on his way to awaken a train crew which was to take a train from one point in the State to a point in another State, is not directly engaged in interstate commerce, although he expected later to engage in a task which would have been one of interstate commerce.
    3. Commerce, § 4

      —what is test for determining employment in interstate. The true test as to whether an employee of a railroad company is engaged in interstate commerce is the nature of his duties at the time of his injury.
    4. Trial, § 198

      —when peremptory instruction should be granted. A request for a peremptory instruction as to what constitutes interstate commerce raises the question as one of law, and should be granted where there is no dispute as to the facts.
    5. Evidence, § 32

      —when understanding of law presumed. The law presumes that every one in transactions free from fraud or duress understands the law under which he is dealing.
    6. Compromise and settlement, § 11

      —when favored. The law favors the settlement of litigation.
    7. Workmen’s compensation,—when release bars recovery under Federal Employers’ Liability Act. Acceptance of compensation under the Workmen’s Compensation Act of Illinois of 1911 (J. & A. U1T 5449-5475), and the execution of a release after an injury, is a bar to any action under the Federal Employers’ Liability Act of 1908, in the absence of proof that the release was not fairly entered into.
    8. Master and servant, § 302a

      —when ordinance not a statute within Federal Act. A municipal ordinance is not a statute within the meaning of the Federal Employers’ Liability Act of 1908.
    9. Master and servant, § 302a

      —when rislc assumed under Federal Employer's Liability Act. The defense of assumed risk remains and is available under the Federal Employer’s Liability Act of 1908.
    10. Master and servant, § 388

      —when assumption of risk bars

      recovery. One knowing and appreciating danger and voluntarily assuming the risk of it has no right of action against the one responsible for damages.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed May 1, 1915.
    James M. Hamill and Charles P. Hamill, for appellant.
    Dan McGlynn, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Appellee brought in the city court of East St. Louis an action in case .and filed a declaration consisting of two counts, each of said counts predicated upon the violation of the Federal Employers’ Liability Act of 1908 for injuries sustained by appellee August 4,1912, while a yard clerk employed by appellant in East St. Louis^ The damages alleged in each count, $10,000.

The first count charged appellant was negligent in the violation of two ordinances of the city of East St. Louis, which forbade the kicking of cars across any public street of the city and the blocking of any street by empty cars for more than ten minutes.

The second count charges appellant was negligent in the handling of its cars in violation of the Act of Congress of April 22, 1908, the injury alleged in both counts being the mashing of the foot so that amputation of a part of the foot became necessary, the injury thereby painful and permanent.

A special demurrer was filed to this declaration and overruled. Appellant then pleaded the general issue and four special pleas. A demurrer was sustained to the special pleas. The trial upon the declaration and general issue resulted in verdict for appellee. Motion by appellant for new trial overruled; judgment for appellee for the sum of $1,850; and this appeal.

The facts in so far as they are to be considered by this court are not in dispute and, in substance, are, as follows:

Appellee had been employed as a yard clerk from about February, 1912, until time of accident, and prior to that time had been a caller of train crews from November, 1911. At the time of the trial in March 1914, he was 23 years of age. His duties as yard clerk were to take a record of the numbers and seals of all incoming and outbound trains in appellant’s St. Louis avenue yards, East St. Louis. It was also his duty to call train crews when directed to do so, which would be about once a week. On the night of the accident August 4,1912, appellee had been engaged in his usual duties of taking seal records, and about two o’clock in the morning he met the night yard master and informed him that the caller did not know that train No. 63 was ordered. The yard master directed him to call the crew himself. The crew were asleep in a caboose 75 feet west of where appellee and yard master were standing. Appellee started in the direction of the caboose and when he reached track No. 11 he found it blocked with cars extending across and on both sides of the crossing, St. Louis avenue, on which he was walking. He could not see how far the cars extended in either direction on account of the darkness. He climbed between two ears which were coupled and while he was doing so they were pushed together, catching his right foot between the steel bumpers and crushing it. The appellee knew that there was an engine at work down near Missouri avenue, a block from where he was injured, and that cars were being shoved towards St. Louis avenue; that these cars extended for about thirty cars’ length north of St. Louis avenue and from one and one-half to two and one-half cars’ length south of the same avenue. The crew did not know of appellee’s whereabouts at the time he was injured. The cause of the bumping together of the cars was the kicking in of a car from the south against the ears already south of the crossing. St. Louis avenue crosses St. Louis avenue yards. At this crossing there are ten tracks. Train No. 63 was beiug made up on track No. 8. It was destined from East St. Louis, Illinois, to Howell, Indiana. It was to leave at three o ’clock a. m. All the toes of the right foot of appellee were crushed and afterwards amputated, and he remained at the hospital until the 16th day of November, 1912.

That appellee and appellant had accepted and were under the Illinois Workmen’s Compensation Act of 1911 (J. & A. ¶¶ 5449-5475), and that appellee had accepted three different payments of amounts due him as compensation under the act and had signed vouchers stating that the payments were so made.

Numerous errors are assigned and argued by appellant for a reversal of the judgment in this case. However, from the view we take of the law as applied to the facts in this case, it would serve no good purpose to extend this opinion-into a discussion of more than three of the errors argued:

First: The plaintiff, appellee, at the time he received his injury was not engaged in interstate commerce.

Second. Acceptance of compensation under the Workmen’s Compensation Act of Illinois (1911) after the injury is a. bar to any action under the Fedéral Employer’s Liability Act.

Third. A municipal ordinance is not a statute within the meaning of the term in the Employers ’ Liability Act of April 22, 1908, and the violation of such an ordinance does not take away the defenses of assumed risk and contributory negligence which exist under the act.

The first proposition under the law and the declaration in this case is clear enough: First, that appellee was at the time of the injury eng*aged in interstate commerce, and that there was a violation by appellant of that act. The appellee recognizes that to recover under his declaration he must be held to be engaged at the time of the injury in interstate commerce and as to what he, appellee, was at the time doing is not in dispute, so it leaves the application of the law to the facts: “Appellee was in the act, while in the employ of appellant at its yards of East St. Louis, of awakening a train crew, who were to take train No. 63 upon its journey from East St. Louis to Howell, Indiana.”

The courts have been liberal in the application of the law as to when employees are engaged in interstate commerce within the meaning of the act in question. The employee must be engaged in work on some of the instrumentalities of interstate commerce. If this is his employment, it makes no difference how important or how unimportant it may be or whether he is at the time actually driving the nail or handling that particular car. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 3 N. C. C. A. 779.

However, on the other hand, in so far as we have examined the authorities, the employee must at the time have something to do in furthering interstate commerce either in the repair of the road, cars, engines or trains, or moving trains, engaged in interstate commerce. It has never been held that because some one gave orders or directions to those so engaged that he was himself engaged in interstate commerce because he gave such orders. The connection with interstate commerce must be direct and not indirect or remote. St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156.

The case of Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336—One employee killed while on the railroad company’s right- of way and while on his way to act as fireman on an interstate train cited by appellee,—is a case to be considered in deciding the case at bar, and while it probably represents the extreme upon this proposition it is not a parallel case. The court in that case based its decision upon the ground: that the deceased was killed while on his way to work “under the direct and peremptory command of the railroad company to do a designated and specific act * * * to wit, to move a train then engaged in interstate commerce. He was on the premises of the railroad company and in the discharge of his duty. ’ ’

The court reached the conclusion that he was in the discharge of his duty when he met his death. What was the duty? Moving a train engaged in interstate commerce. The law is laid down by the Supreme Court in the case of Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, as applicable to the case at bar in the following-language: “That he was expected, upon the completion of that task, (the hauling of intrastate freight), to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury.”

Appellee had no direct connection with interstate commerce. His duties were local and in no way connected with the interstate commerce. Call the men that were to perform those duties. If this is a part of interstate commerce every employee of a railroad company, no matter who he is, who directs the men so engaged comes within the law. This construction carried into all of these positions would defeat the intention and purpose of such a statute. Appellee was not engaged at the time of the injury in interstate commerce and under his declaration could not recover.

There was no disputed facts in evidence and no room for two conclusions from those facts under the law as declared in the case of Illinois Cent. R. Co. v. Behrens, supra. The request for the peremptory instruction raised the question as one of law and should have been given. Patry v. Chicago & W. I. R. Co., 265 Ill. 310.

The second proposition, the acceptance of compensation under the Workmen’s Compensation Act of 1911: The law presumes that every one in transactions free from fraud or duress understand the law under which they are dealing, and favors the settlement of litigation. Admitting that, if appellee and appellant were under the Federal Liability Act, the Federal act would be exclusive and have the entire field unless some reason appeared to the contrary, and the court has a right to consider what appellee did in signing a release and what appellant did in paying compensation as a circumstance showing the construction the parties themselves put upon the facts. It is urged by appellee that he should not be bound by what he did because it was done under a mistake of law. It is facts that determine whether or not appellee was engaged in commerce between States, and having determined the facts in this regard against the contention of appellee, the ground for rejecting this evidence and that appellee should not be held to his settlement for compensation is removed.

This is a release after injury for a good consideration, and in the absence of proof that it was not fairly •entered into is binding upon the parties, and a bar to an action for damages. Pennsylvania Co. v. Chapman, 220 Ill. 433. Appellee cannot reject the act and still retain its advantages upon well-known principles of contract law. Pawnee Coal Co. v. Royce, 184 Ill. 402.

The third proposition, that the violation of a municipal ordinance is not the violation of a statute and notwithstanding the violation of an ordinance does not take away the defense of assumed risk: A municipal ordinance is not a statute within the meaning of the Employers’ Liability Act. Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 8 N. C. C. A. 834. The defense of assumed risk remains and is available under the Federal act. The law is well settled that one knowing and appreciating danger, and who voluntarily assumes the risk of it, has no right of action against the one responsible for the danger. Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, 1 N. C. C. A. 828.

Appellee not only assumed the ordinary risks incident to his employment but also all dangers which are obvious and apparent. It was therefore error for the court to refuse the instructions on the question of assumed risk, and with no dispute as to the facts as to appellee voluntarily placing himself in a place from his experience he well knew was dangerous that defense should bar a recovery.

We are of opinion that the errors herein sustained are not only reversible errors but the facts in this case not being in dispute a second trial would serve no good purpose, therefore the reversal should be with a finding of fact and without remanding.

It is therefore ordered that the judgment be reversed with the following as a finding of fact to be made a part of the judgment:

First. We find as a fact that appellee, at the time of the injury, was not engaged in interstate commerce.

Second. We find as a fact that at the time of the injury, appellant and appellee were operating under the Workmen’s Compensation law of the State of Illinois of 1911 (J. & A. ¶¶ 5449-5475), and that appellee accepted and appellant paid compensation thereunder, and such a settlement is a bar to a recovery in this case.

Reversed with finding of fact.


text:
    H. C. Murrah, Appellant, v. A. L. Russell and R. E. Holmes, Executors, Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. William N. Builer, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by H. C. Murrah against A. L. Russell and R. E. Holmes as executors of the will of W. S. Blackman, deceased, on a claim against the estate. From a judgment for defendants, plaintiff appeals.
    Plaintiff was on June 9, 1899, then and had been conducting a school, known as Creal Springs College and Conservatory of Music. On this day the college by its so-called president and secretary, executed a note for $1,256.20 with seven per cent, interest from date, payable on the 20th day of July, 1899, to H. C. Murrah. Said note was secured by chattel mortgage on personal property belonging to the institution. July 25, 1899, five days after the maturity of the note, this note and mortgage were placed in the hands of the attorney for mortgagee, who took possession of the property and began a foreclosure. At that time the deceased, W. S. Blackman, and J. S. Heaton executed a note for the sum of $400, which said note was applied on the satisfaction of the original note and mortgage. This last mentioned note of $400, dated July 25, 1899, to H. C. Murrah is the basis of this controversy. Nothing was paid on this note by either Blackman or Heaton, but on the 15th day of July, 1909, there was a credit indorsed on the back of this note of the sum of $5.

      Abstract of the Decision.
    1. Bills and notes, § 55

      —when consideration sufficient A note given by a third person direct to a creditor of a college and intended as a gift to the college, and accepted hy the creditor as so much cash, is based upon a sufficient consideration.

      Mrs. Gertrude B. Murrah, wife of claimant, was the only witness to this transaction. She said that between Blackman and herself there was a business transaction in and by which as surety she had paid for Blackman $20 interest and had received from Blackman and given him credit for the amount so paid prior to her visit to him at Carrier Mills, July 15, 1909, with the note in question for the purpose of collecting or renewing the same. While she was in Carrier Mills she wanted a new note from Blackman, and he suggested that he would make an indorsement of $5 credit thereon, and authorized her to do so, which she did. The deceased never paid any money in pursuance of this indorsement. The witness suggested to deceased that she would take $5 from what deceased had sent her in satisfaction of what was due her and pay it to her husband, which she said she did, but did not fix any time when she paid him.
    Plaintiff testified in the County Court that this note was a gift by deceased and Heaton. He was not present and did not testify in the Circuit Court. Defendant contended that this note was in the nature of a gift or a promise to give.
    William H. Warder, for appellant; A. G. Abney, of counsel.
    W. F. Scott, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Appeal and ebbob, § 1325 —when presumptions in favor of findings. The same presumptions follow the finding of the court that follow the verdict of a jury as to question of fact.

3. Appeal and ebbob, § 1325 —when court presumed to have considered only competent evidence. It will be presumed that a court in coming to a conclusion as to a finding of fact, considers only-competent testimony.

4. Witnesses, § 39 —when wife incompetent. A wife who acts as an agent of her husband in securing the renewal of a note is an incompetent witness in an action by the husband involving the note, where the husband is disqualified because of the fact that he is a party in interest.