text:
    People of the State of Illinois, Defendant in Error, v. W. A. Cochran, Plaintiff in Error.

      Contempt—what requires discharge of contemnor. If the contemner charged with a criminal contempt can clear himself upon his own oath, he must be discharged; if he commits perjury by his answer the remedy is to prosecute him for that offense.
    Proceeding for contempt. Error to the County Court of Lawrence county; the Hon. Jaspes A. Benson, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed June 15, 1909.
    Noah M. Tohill, for plaintiff in error.
    Thomas H. Cunningham, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a proceeding instituted by the state’s attorney of Lawrence county, against Gr. A. Vandament, sheriff, and plaintiff in error, deputy sheriff, charging them with contempt of court in refusing to serve a search warrant.

When the case came on for trial each of the accused filed his answer under oath, fully purging himself of the contempt charged. Upon motion of the state’s attorney these answers were stricken from the files. Plaintiff in error elected to stand by his sworn answer and refused to join in the taking of other evidence. The court heard oral testimony of witnesses produced on behalf of the state and found the plaintiff in error guilty, and imposed a fine upon him.

We agree with the state’s attorney in his statement:

“There is but one point to be considered by the court in this case, and that is, did the trial court err in striking the answer of plaintiff in error from the files and proceeding to hear oral testimony?”

< This was a proceeding for criminal contempt. In such proceedings, except where the contempt is committed in the presence of the court and in cases where the answer contradicts the records of the court, if the contemnor’s sworn answer is sufficient to acquit him, he must stand acquitted. If the contemnor can clear himself upon his own oath, he must be discharged. If he commits perjury by his answer, the remedy is to prosecute him for perjury. Ferriman v. The People, 128 Ill. App. 230 (234); Baird v. The People, 134 Ill. App. 433; Oster v. The People, 192 Ill. 473 (479).

It is not contended in the case at bar that plaintiff in error’s answer was not sufficient to acquit him. The trial court erred in striking his answer from the files and in proceeding to hear oral testimony, and in finding him guilty and imposing a fine upon him.

For the above noted errors, the judgment of the County Court is reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Frederick B. Harding, Administrator, Appellee, v. St. Louis National Stock Yards, Appellant.
    1. Instbuctions—when assumption of facts will not reverse. Even though, an instruction assumes the existence of a particular fact, it is not harmful and will not reverse where the cause was tried upon the assumption of the particular facts urged as having been improperly assumed by the instruction criticised.
    2. Instructions—when does not give undue prominence. Held, that the instruction criticised in this case did not erroneously give undue prominence to a particular witness or to a particular feature of the cause.
    3. Instbuctions—when giving undue prominence will not re

      verse. Notwithstanding an instruction may give special prominence to particular evidentiary facts, it will not reverse if such evidentiary facts are of controlling importance.
    4. Evidence—what tends to show relation of employer and employe. Held, that the particular letters received in evidence in this case were competent as tending to show the relation of employer and employe.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Motees, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed June 15, 1909.
    Dan McGlynn, for appellant.
    R. V. Gustin and D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This suit was brought by A. J. Magill, in his lifetime, against appellant and Armour & Co., to recover damages for personal injuries received by him, while in the employ of the latter, in the yards of its packing plant at East St. Louis, Illinois. At the close of all the evidence, plaintiff dismissed his suit as to Armour & Co., after which the jury returned a verdict in his favor for $7,500 and judgment was rendered for that amount.

The original plaintiff died after the appeal was taken and his death having been suggested, Frederick B. Harding, his administrator, has been substituted as appellee.

The proofs as disclosed by the record, show that appellant has for a number of years maintained stock yards at or adjoining said city of East St. Louis, and has also been engaged in a general switching business, delivering cars to and receiving them from the various railroads in the vicinity. In the prosecution of its switching business, it maintained switch yards, equipped with railroad tracks, a roundhouse, a machine shop and nine switch engines, employing a switching crew for each engine. In the vicinity of appellant’s switch yards there are a number of large packing houses, whose switching is done by appellant, among them being the plant of Armour & Co. In pursuance of this work appellant sent a switching crew with an engine to the plant of Armour & Co. each day, generally, though not always, the same crew, and also sent other crews there for night work, when occasion required it. For convenience to all concerned, the tracks in the inclosure of the Armour plant were classified and numbered. Near the fence on the northwest side of the inclosure was a main lead track, known as the fence track, and leading off from it at regular intervals were other tracks, extending towards the southeast, among them being certain tracks numbered consecutively from one to ten, called repair tracks. The numbered tracks did not all connect directly with the fence track, but were arranged in groups of two or more tracks, each group connecting with the fence track by a short lead track. Tracks Nos. 3 and 4 formed one of these groups and in order to place a car upon either of them, it was necessary to throw a switch from the fence track onto the short lead track and also a second switch at the point where the short lead divided into the pair of tracks, the second switch determining upon which of the pair of tracks the incoming cars would be placed. The switching was done by appellant for Armour & Co., under a contract by which appellant furnished its own engine and crew in charge of a foreman, who directed the details of the switching work. For switching cars from one place to another about the plant at East St. Louis, and for moving cars to and from that plant to other designated places in the vicinity, appellant was paid an agreed price per car by Armour & Co. When cars loaded with their products were consigned to customers at a distance, Armour & Co. paid a through rate to the carrying railroads, and those roads paid appellant a switching charge of $2 a car for delivering the cars to them from the Armour plant. For this same compensation it was the duty of appellant to return the empty cars and place them on the Armour tracks in its yards. Appellant’s same crew which did the switching at the Armour plant also delivered loaded cars from the Bast St. Louis plant to the carrying railroads and returned the empty cars. Appellant’s crew got certain directions as to what it was to do before going to the Armour plant in the morning, from what was known as the “stock yards bulletin” in the office of appellant. Directions concerning the movement of the cars, from one track to another within the Armour yards and between the plant and other places near by, were given to the crew by a yard master employed by Armour & Co., who also gave the crew switching lists for cars loaded and ready for delivery to carrying roads.

On August 15, 1907, in the middle of the afternoon, a switching crew was at work in the Armour yards, distributing empty cars, which had been returned from the carrying railroads. Repair track No. 4 was full of cars and, as was the custom, a space had been left at the end of every second car, so that the repairers and cleaners could get about them conveniently. When such was the case, the track was called “set,” and it was the custom of the yards and so understood, that no more cars should be set in on that track, or the cars disturbed so as to interfere in any way with the safety of the workmen. When, on this occasion, track No. 4 was “set,” the foreman of the switching crew threw the switch between the short lead and tracks 3 and 4, so as to connect track No. 3 with the lead, cutting out No. 4, and took all the crew, except a brakeman named Wysong, with the engine and went out of the yards to bring in more cars and distribute them on the proper tracks. When the crew returned, it started, under the direction of the foreman, to send several cars over the short lead, connecting 3 and 4 with the fence lead track, intending to kick them in on track No. 3; but in the meantime the switch had been thrown back from No. 3 to No. 4, and the cars ran in on the latter track, violently striking the spaced cars loaded there and causing them to break loose and move. Magill was at work under one of the cars, and when the impact occurred, the car under which he was located moved and a car wheel ran over his leg, cutting it off.

So far as the questions of fact involved are concerned, the only controversy was as to whether the switchman Wysong, by mistake, set the switch so as to permit the cars to run in on track No. 4 and cause the injury. When the rest of the crew left the yards the foreman set the switch, so as to open up track No. 3. Wysong was left alone at the switch and no one else was near it during the absence of the crew. He testified that he never touched it, but one of the switching crew swore that he saw Wysong throw the switch just before the accident and another witness swore that Wysong said, “I lined that switch for No. 3 and somebody changed it.” If Wysong touched the switch at all, he made the mistake which caused the injury, and the proof was such that the jury could not have reasonably found otherwise than in favor of appellee, upon this question.

The sufficiency of the facts proven to support the verdict is recognized by counsel for appellant, who asserts that the important questions arising on the record are those relating to the action of the court below in regard to the instructions and the admission of certain evidence offered by appellee.

The principal complaint in regard to the instructions, and the only one which appears to us to be of sufficient importance to demand attention here, is directed towards the second instruction given for appellee. This instruction is as follows:

“The court instructs the jury if you believe from the evidence that the injury was caused by the negligence of one Wysong in throwing a switch, and if you further believe from a preponderance of the evidence that the said Wysong was then employed as a switch-man for the St. Louis National Stock Yards and was under the control and direction of the St. Louis National Stock Yards and that Armour & Co. had no power or authority over him, then the fact, if proven, that the yardmaster of Armour & Co. may at times have given directions to the engine crew as to what work should be done, and when it should be done, leaving the details to the switching crew, if the preponderance of -the evidence shows this, would not of itself necessarily make the said Wysong the servant of Armour & Company.”

Bight reasons are given by appellant why this instruction is said to be objectionable. The first is that it assumes if the switch was thrown by Wysong it was negligence. It is not entirely correct to state that the instruction contains the assumption complained of, but even if it was so, it would not be harmful because the questions as to whether the throwing of the switch was negligence, was not the question to which the instruction as a whole was directed and intended to apply, but even if such assumption did exist, it is not error in this case for the further reason that there can be no question whatever, under the facts and circumstances in evidence, but that if Wysong threw the switch, it was negligence, and the case was tried by both parties upon that theory.

It is next said that the instruction singles out the testimony of the witness Jones as to Wysong’s conduct, thereby giving it undue prominence. The instruction does not mention the witness Jones and in fact the jury could well have found that Wysong threw the switch if Jones had not testified in the case. The instruction is therefore not subject to the objection made.

It is next urged that it makes Wysong’s employment by the stock yards a prominent feature when this was not in dispute. The instruction does not appear to us to give any undue or unnecessary prominence to this feature of the case, and submits to the jury the question whether Wysong was in fact employed as a switch-man for the stock yards.

It is further said that the instruction violates a well-established rule of law prohibiting the singling out of evidentiary facts, and telling the jury that certain conclusions do not as a matter of law follow from proof of the same. While there is some foundation for this .objection raised to the instruction, yet it is not of controlling importance here for the reason that the rule against singling out and giving prominence to certain facts is directed mainly against the singling out of inconclusive and uncontrolling facts, whereas the facts singled out in this instruction were of controlling importance. City of Waverly v. Henry, 67 Ill. App. 408; Koehler v. Miller, 21 id. 557; Crittenden v. Evans, 41 Ill. 251; Phillips v. Roberts, 90 Ill. 493.

The other objections urged to the instruction relate to the bearing the same had upon the question whether the members of the switching crew were in fact servants of appellant or of Armour & Co. This question was indeed the principal one raised upon the trial of the case below, and is the main subject of discussion here. The proofs show in addition to the facts hereinbefore stated that the crew in question was employed and paid by appellant; that while complaints of neglect of duty by or inefficiency of members of a crew made by the yardmaster of Armour & Co. would be considered by appellant, yet appellant alone had the right to discharge the members of the crew; that Armour & Co. had nothing whatever to do with the details of the switching but simply directed what cars were to be moved and where they were to be taken or placed, the manner of doing the same being left entirely to the switching crew. The facts appear to us to show clearly that the members of the crew were under the control and direction of appellant, and were its servants. Instruction No. 2 was properly applicable to these facts and the giving of it was not error. In this connection, we may consider the complaint of appellant, that certain evidence offered by appellee was admitted in error, over objection. The evidence referred to was a letter written by Armour & Co. to appellant, September 6, 1907, complaining that a crew of the latter, when delivering cars, had permitted an engine to run into two cars on the repair track, causing them to break through and destroy the doors of the Armour car shops, and stating that the damage would be charged to appellant. Also, a letter from appellant’s superintendent of terminals, written a few days later, stating that an examination of the injuries to the shops had been made and that Armour’s foreman had been told to advise appellant of the amount of the damages. The objection made by appellant is that the letters showed the injuries complained of occurred in the night time and that the engine was not in control of the regular day crew but of a special crew of appellant, engaged in delivering cars in the night time, with which crew Armour & Co. had nothing to do. There is nothing upon the face of the letters to show that the injuries to the shops occurred in the night time, nor that the regular crew was not in charge of the engine, but waiving that question, we think the evidence was admissible as tending to show that appellant considered crews it sent into the Armour yards its own servants and recognized its liability to pay Armour & Co. for injuries done by such crews. In this connection it is proper to say that there is also evidence tending to show that appellant on one occasion repaired at its own expense the track of Armour & Co. when it was torn up by an engine in charge of a day switching crew.

The proofs in this case show that Magill was injured while in the exercise of due care for his own safety by the negligence of a switching crew in the employ of appellant, and upon the whole record substantial justice appears to us to have been done. No errors warranting a reversal were committed in the trial of the case, and the judgment of the court below is therefore affirmed.

Affirmed.


text:
    Claude Alexander, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Evidence—how defense of engineering problem made to charge of wilful violation must be established. The defense interposed to the charge of wilful violation that the conditions complained of represented an engineering problem for which the operator was not liable, in order to he considered by the court must be supported by evidence.
    2. Instructions—must be pertinent to issues. An instruction which is misleading as applied to the particular facts of a case is improper and should not he given to the jury.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moobe, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed June 15, 1909.
    Wise, McNulty & Keefe, for appellant.
    C. H. Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee was injured while working as a mule driver in appellant’s mine at Maryville, Madison county, brought suit and recovered a judgment against appellant for $300.

The injury occurred about 9:30 o’clock at night on May 1, 1907, while he was working extra time driving a mule attached to a flat-car, loaded with timbers, to be distributed among the working places of the mine. Mr. Palacek, the night-boss, was riding with him on the car at the time. Appellee had been working in the mine for five or six years, driving in various parts thereof, but had only driven along the place where he was hurt once within the preceding two months. He claims that as he was going along an entry on the north side of the mine, he came to a little grade and got off the car to hold it back; that when he stepped off, his foot went between the rail on the track and the compressed air pipe, some three inches distant, where it was caught and crushed and his ankle bone broken. Mr. Palacek, the only other person present, who was a witness for appellant, testified concerning the occurrence: “I could not say whether I was looking at Alexander at the time he got hurt or not; the only thing I seen was that he was between the truck and the props. I seen he got off; he hollered; I got off and said, ‘Are you hurt?’ and he said, ‘My leg is broken.’ * * # I never saw anything about his foot being caught,” and in answer to this question, “Was his foot, so far as you saw, caught there?” he answered, “No, sir.” He further testified that he said to appellee after he was taken to the top: “Claude, how did this accident happen?” and appellee answered, “I was sliding my foot on the rail, and that caught a chunk of coal.”

Two assistant mine managers also stated appellee said on one occasion in their presence, that at the time he was injured he was braking the car with his foot, sliding it along the track, and it caught a chunk of coal which tripped him. There was also a difference of opinion between the witnesses for the respective parties as to the distance the compressed air pipe was from the rail, ranging from three to seven inches.

It appeared, however, from the proofs that the oil cups on the cars rubbed the air pipe, which was three or four inches in diameter, making it bright at certain places, indicating that in such places the pipe was in close proximity to the rail. It may be that the differences between the estimates of the various witnesses, as to the proximity of the track to the pipe, is accounted for by the fact that the measurements were not all taken at the same place, the question as to which was the true place of the injury being in dispute.

Appellee denied that he made the statements concerning the manner in which he was injured, testified to by the three employes of appellant above mentioned. Upon the whole, questions concerning the manner in which appellee was hurt and the proximity of the rail to the compressed air pipe, if indeed the slight difference testified to by the witnesses on the respective sides concerning such proximity was material as affecting the injury, were all questions of fact for the jury, and as there was evidence to support appellee’s claim on both questions, we think it proper that the jury, which saw the witnesses on the stand, should be permitted to determine where the truth lay.

It is claimed by appellee that as the props were three feet from the track, the pipe should have been laid at least twenty inches from the track and that there was no excuse for its being so close. On the other hand it is claimed by appellant that the location of the pipe was an engineering problem and therefore appellant cannot properly be held liable for damages caused by its location. There was no proof, however, on the part of appellant tending to show that the location of the pipe in such close proximity to the rail was in fact an engineering problem or that any engineering difficulties would have been encountered in locating it at a greater distance. Upon the evidence we are of opinion, as was said by this court in the case of Gruenendahl v. Consolidated Coal Co., 108 HI. App. 644, where a similar question was raised, that “it was for the jury to decide upon the evidence in this particular case, considering all of these conditions, whether or not the defendant was negligent.”

Appellant complains of the first instruction for appellee, because it told the jury it was the duty of appellant to maintain a reasonably safe entry, track and way over, upon and along which appellee was required to pass in the performance of his duty as a driver, for the reason, as claimed, that there was no charge of negligence, save that of having the air pipe close to the track. The declaration, however, charged, not only that the air pipe was located about three inches from the rail but also that it was partially covered by the gob which had accumulated in large quantities there; that the wheels in passing said air pipe would touch and rub against it and that said conditions were unsafe, improper and dangerous for use by appellee in said mine. The evidence was confined to these alleged unsafe conditions and therefore the jury could not have been misled by the instructions.

Appellant also complains that the court refused instruction No. 8 offered by it, which told the jury that if they found from the evidence “the track and pipe were in a reasonably safe and proper condition for the operation of the car plaintiff was on at the time he was injured, then the plaintiff cannot recover.” This instruction was improper and misleading, as applied to the facts in this case, which involved only the question of the safety of the portion of the mine in question for appellee, in the performance of his duties as a driver. Appellant’s other refused instructions were, so far as they were proper, fully covered by its given instructions. Upon the whole record we find no reason which appears to us to call for the reversal of the judgment of the court below, and the same is therefore affirmed.

Affirmed.


author: Me. Justice Higbee

text:
    F. M. Pool, Appellee v. James Jeffrey, Appellant.
    Brokers and factors—when commissions earned. A broker who is the procuring cause' of a sale consummated by his concern is entitled to his commissions.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed June 15, 1909.
    Neely, Gallimore, Cook & Potter, for appellant.
    Clemens & Slater, for appellee.
   Me. Justice Higbee

delivered the opinion of the court.

On June 14, 1907, appellant by an instrument in writing, signed by him, listed for sale certain premises which he owned in the city of Herrin, Illinois, with appellee, a real estate agent of that place. This instrument contained a request to appellee to find a purchaser for the property, which, together with the surroundings, was described therein and concluded as follows: “Price $3750.00. Terms, cash. I agree to pay Fred M. Pool, 5 per cent commission, and will furnish purchaser with complete abstract of title. Giving the said Fred M. Pool exclusive agency for 60 days.”

Three days later appellant sold the listed property through another agent for $3,750, and appellee claiming that by his efforts the purchaser was in fact procured, brought this suit to recover his commission. Upon the trial in the court below, a jury was waived, and the court, having found in favor of appellee, gave judgment against appellant for $187.50.

Appellant advances as one reason why appellee should not be permitted to recover, the fact that one George W. Dowell claimed to be entitled to one-half of any commission which might be recovered. Appellee and Dowell, as is disclosed by the evidence, were at the time of the transaction in question, partners in the real estate business. After obtaining the written contract or listing above referred to, appellee on the same day called Dowell to his assistance and the latter later in the day, which was Saturday, took the matter up with one Herrin, who was seeking to purchase a place for his mother-in-law, Mrs. Sarah Stotlar. Early on the Monday following, Herrin, who in the meantime had heard from others that appellant asked $3,750 for the property, called on Dowell and offered him that amount for it. Dowell refused to accept the amount named, demanding $3,850. Herrin said, “No, it is Mrs. Stotlar’s money and I am only authorized to give $3,750.” Dowell having again refused to take less than $3,850, the men parted with an agreement to take the matter up again at 1 o’clock in the afternoon.

A few minutes later Herrin met W. H. Ford, another real estate dealer, and asked him if he had the property listed with him or could buy it, at the same time offering $3,750 for it. About noon Ford told Herrin the property could be bought for $3,750, and the result was that later on the same day deeds for the premises were made by appellant to Ford and by the latter to Mrs. Stotlar.

Appellee and Dowell both testified that subsequently they had a conversation with appellant concerning the matter and the latter told them he saw they were instrumental in bringing about the sale and offered to give them $10, which was refused by them. Appellant testified that he told them he “would give them ten dollars rather than have any hard feelings; offered to make them a present of ten dollars.” The listing of the property and contract to pay commissions was made by appellant with appellee alone, for reasons which were explained by appellee on the trial. The fact that Dowell assisted in the quest for a purchaser and was to share in the commission in the event of a sale, was a matter between him and appellee and did not affect the contractual relations existing between appellee and appellant. The suit was therefore properly brought in the name of appellee.

Appellant further contends that the facts in the case as shown on the trial did not warrant the court below in finding in favor of appellee.

Appellee, through Dowell, appears to have almost at once interested Herrin in the premises and the latter in fact purchased them for Mrs. Stotlar, within three days after the property was listed. Herrin was from the start ready, willing and financially able, as agent for Mrs. Stotlar, to buy the premises for $3,750, and appellant insists that it was then the duty of appellee, if he wanted to deal fairly with his principal, to accept the proposition of Herrin and close the sale of the property.

As bearing npon the question of the good faith of himself and Dowell in asking $3,850 for the premises, appellee swore that he thought the place was worth $4,000 and that appellee told him he had been asking that amount for it; that in attempting to get $3,850 he and Dowell were trying to benefit appellant and that in no event was he to get more than the agreed commission of 5 per cent on $3,750. Appellee and Dowell appear to have acted in good faith towards appellant in their negotiations with Herrin and the sale appears to have resulted from their efforts.

The court below therefore properly found appellee was entitled to recover the commission named in the contract.

"What we have above said also applies to and disposes of the criticisms of appellant upon the holding of the court below in regard to the propositions of law presented.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    People of the State of Illinois, Defendant in. Error, v. William Hallam et al., Plaintiffs in Error.
    Cbimbstal law—when joint conviction will not he sustained. Under an information against two or more, two cannot be convicted jointly for distinct offenses, though of the kind charged in the information, when committed by them severally, and growing out of separate transactions.
    Proceeding by information. Error to the County Court of Wabash county; the Hon. J. A. Lapp, Judge, presiding.
    Heard in this court at the August term, 1908.
    Beversed and remanded.
    Opinion filed June 15, 1909.
    E. B. Green and Theo. G. Risley, for appellants.
    H. M. Phipps, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

On October 28, 1907, an information was filed in the County Court of Wabash county, by the state’s attorney of that county, charging William Hallam and William Butler, the plaintiffs in error, and three other persons, with unlawfully playing for money at a game with cards, in said county of Wabash, on the 1st day of October in said year. When the cause came on for trial at the January term, 1908, of said court, the same was continued as to one defendant who had not been arrested, and at the close of all the evidence, dismissed by the state’s attorney as to two other defendants. The trial having proceeded, with the two plaintiffs in error, as the only defendants, they were both found guilty by the jury and a fine assessed against each of them by the court.

Proper exceptions were presented and the cause is brought here for review.

Upon the trial two witnesses sworn on behalf of the people, testified to having seen the plaintiffs in error-play cards for money in Wabash county. They both swore that the card playing to which they referred, took place on a Sunday, fixed within the period of limitations ; that they saw Hallam playing in the forenoon; that at noon witnesses went to Grayville, returning in the afternoon, when they saw Butler playing; that they never saw Hallam and Butler playing at the same time. One of these witnesses also swore that the places where Butler and Hallam played were about thirty feet apart. No other witness for the people than the two above referred to, claimed to have seen either Hallam or Butler playing. Each of the plaintiffs in error denied on the witness stand that he was present at the time and place named by the witnesses for the people, and the evidence of other witnesses sworn for the defense tended to corroborate them.

The first question presented, and the only one which it concerns us to consider, is whether, admitting the evidence introduced for the people to be true, it is sufficient to sustain the verdict of guilty against the two plaintiffs in error jointly, as the proof showed they never played together, but at different times and that they were not even both present at the same time. The law governing the conditions existing in this case, appears to be well settled. It is very clearly stated in Moore’s Criminal Law (2nd Ed.) Section 817, a portion of the language used being quoted from Baker v. The People, 105 Ill. 452, as follows:

“Under an indictment against two or more, two cannot be convicted jointly for distinct offenses, though of the kind charged in the indictment, when committed by them severally, and growing out of separate transactions. As if A and B are jointly indicted and tried for gaming, and the evidence shows that A and others played at one time when B was not present, and B and others played at another time when A was not present, no conviction can be had against them.”

In Elliott v. The State, 26 Ala. 78, which was an indictment against four persons for gaming, two of them were tried on a joint plea of not guilty, the other two not being arrested, the evidence showed' that both of the defendants on trial had gambled at cards at the same house but not at the same time or in the presence of each other. The court there held, that “An indictment would be fatally defective, if upon its face it charged several defendants for several offenses committed by them independently of each other, some of which were committed by some of the defendants at one time, and some of which were committed by others of the defendants at a different time. Where these facts do not appear upon the face of the indictment, but do appear on the trial from the evidence, the defendants are as much entitled to the benefit and protection of the rules of law above laid down, as if the indictment had fairly stated the facts, and thus given them an opportunity to demur to it, or to move in arrest of judgment.”

The judgment of the court below against defendants in that case, was reversed and the cause remanded.

From the above authorities, it plainly appears, that the facts in this case did not warrant a joint verdict of guilty against the two plaintiffs in error, and therefore the judgment based on that verdict must be reversed and the cause remanded.

Reversed and remanded.


text:
    Henry G. Harmening, Appellee, v. Henrietta Coal Company, Appellant.

      Instructions—must not ignore material issue. An instruction which, concludes with a direction to the jury should not omit reference to any material issue in the cause.
    Action in case for personal injuries. • Appeal from the Circuit Court of Madison county; the Hon. E. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.,
    Affirmed.
    Opinion filed June 15, 1909.
    Wise, McNulty & Keefe, for appellant.
    Brown & Geers, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On September 9, 1907, appellee, a man twenty-eight years of age, was injured while employed in appellant’s mine near Edwardsville, Illinois, by a large piece of slate or clod, which fell on him from the roof of the room where he and his father were at work. Both of .them concluded some days before the injury that the roof needed timbering and ordered timbers for that purpose, including cross bars. Several props appear to have been furnished them, but they both testified that no cross bars, such as were ordered by them, were ever furnished, for the reason, as stated to them by the mine manager, there were none; that the mine manager however told them there were two big logs on top and these the father asked to be sent down in order that he and his son might use them if possible; that after some delay the two timbers referred to were sent down and one of them, the smaller, put in place by appellee and his father, but the other timber was not used for the reason it was so large they could not put it up in place.

On the day in question, appellee and his father went to their room to go to work about 7:20 a. m. As they reached their working place, appellee said, “Pa, we had better get out, it is going to come down” and the father replied “Well, we will try it again.” Appellee thereupon stooped over and picked up a piece of slate from the floor with both hands, and was laying it aside, when he was struck by the fall from the roof.

Appellee brought suit, under the act in relation to Mines and Miners, charging in his declaration, first, a wilful failure on the part of appellant to furnish a sufficient supply of caps, props and timbers, delivered on the miners’ cars at the usual place, in suitable lengths and dimensions for the securing of the roof by appellee, after a demand for the same by appellee; that by reason of such wilful failure and neglect on the part of appellant, certain rock, slate, dirt and clod fell from the roof of appellee’s room and injured him; second, wilful failure and neglect on the part of appellant to cause appellee’s room to be examined, a report of conditions then existing made and recorded, and the dangerous places to be marked. Plea of general issue. Verdict and judgment for appellee for six hundred dollars.

The proofs wholly failed to sustain the second charge of the declaration and, so far as the facts are concerned, the case hinges on the question whether appellee made out his case under the first charge. Appellee and his father both testified to the necessity of support for the roof of their room, the orders given by them for cross bars, and the failure of appellant to furnish a sufficient number of the same to afford proper support. In their statement that the timber which they called a log, could not be used by them as a cross piece, they were corroborated by a witness produced by them.

The mine manager, Lawson, who was a witness for appellant, admitted the demand for nine foot crossbars, and claimed that he sent in some 3 or 4, all of which were used before the injury occurred, except the one appellee and his father called the. log. He further testified that the unused timber could have been used as a cross-bar and that two men could have put it up. Some three or four other witnesses examined on behalf of appellant, some of whom measured the timber, also testified that it could have been set up and used as a cross-bar.

It clearly appeared from all the testimony that the bar in question was larger than the ordinary bars used for cross-bars although Lawson testified that crossbars that size had been used in the mine. "Whether the timber furnished by appellant was of suitable dimensions to be used as a cross-bar at the place where it was needed and whether appellee and his father could have set it up in that place, were close questions of fact, which should properly be finally determined by the verdict of the jury.

It is contended by appellant that even if wilful failure on the part of appellant to furnish suitable crossbars had been shown, yet such failure was not the proximate cause of appellee’s injury, for the reason that on Saturday prior to the Monday on which the injury occurred, a shot fired in appellee’s room had knocked down several props as well as some coal; that before the cross-bars could be set up, at the place where appellee was injured, certain gob and coal would have to be removed and that appellee was engaged in this work when the fall from the roof occurred. This claim however is fully met by the testimony of appellee and his father who swore that they had ordered the cross-bars six days before the injury occurred and had they been supplied within a reasonable time, they would have been set up and the roof properly supported before the shot was fired on the preceding Saturday.

Appellant complains of the refusal of two of its instructions. One of them told the jury if they found from the evidence that the rock which fell on the ‘ ‘ deceased” was sounded that morning and was apparently sound or solid and that it. fell without warning and without the negligence of any person, appellee could not recover. In addition to technical inaccuracies, this instruction omitted all reference to appellee’s charge of a wilful failure to furnish a sufficient supply of caps, props and timbers and was therefore rightly refused. The other refused instruction stated that the appellee could not recover if the jury believed from the evidence there was gob and coal to be removed before the place which fell could be cross-barred, and that until this was done cross-bars could not be used. This instruction improperly ignored the question whether the cross-bars could have been set in place in safety before the time of the injury, had they been furnished within a reasonable time after demand for the same was made by appellee and his father.

Am examination of the instructions given in the case discloses that those given for appellee are not subject to any substantial criticism and that the twenty-four given for appellant fully presented the law applicable to appellant’s lines of defense.

The judgment of the court below will be affirmed.

Affirmed.


author: Me. Justice Baume

text:
    Richard Snell and George K. Ingham, Appellees, v. M. L. Davis et al., Appellants.
    1. Negotiable instruments—what operates to extinguish. The assignment of a note to one of several joint makers operates to extinguish the same.
    2. Alteration of instruments—what material. The alteration of a promissory note by erasing the signature of one of several joint makers without consent of the others, is material and operates to render the same void.
    3. Alteration of instruments—how question of materiality determined. It is for the court to determine as a matter of law whether the alteration of an instrument is material.
    4. Alteration of instruments—what does not cure unauthorized alteration. The restoration of an Instrument to its original form after an unauthorized material allegation therein, will not avail to revive the instrument and give it force.
    Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. William G-. Cochran, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed May 18, 1909.
    John Fuller, Herrick & Herrick and L. O. Williams, for appellants.
    William Monson and Lemon & Lemon, for appellees.
   Me. Justice Baume

delivered the opinion of the court.

On May 14, 1902, the appellants, M. L. Davis and fourteen other persons, together with J. I. Everson and William White, executed their joint and several promissory note for $800 payable to William Eaton Moore or bearer, on or before January 1, 1903, said note being one of a series of three notes each for the like amount given by said makers in consideration for a stallion purchased by them from said Moore. Appellees brought suit against all of the said makers of said note to recover the amount alleged to be due thereon, and upon the trial, at the close of all the evidence, the court gave to the jury a peremptory instruction to find the issues , in favor of appellees and to assess their damages against appellants and said Everson at $663.37. Upon the verdict returned by the jury in obedience to such instruction, judgment was entered against all of the makers of said note except the said White, who was then deceased.

Appellants sought to interpose two defenses to the action: First, that said note was sold by the payee Moore to J. I. Everson, one of the makers, and that upon the purchase of said note by said Everson the same was thereby discharged and extinguished; and, second, that said note had been materially altered by said Everson without the knowledge and consent of his co-makers.

It is established by the evidence that the negotiations for the sale and purchase of the stallion were conducted by one Davlin, acting as agent for Moore, and Everson acting on behalf of the makers of the note; that the note was signed by all of the purchasers including Everson in blank as to the amount and time of payment; that when the terms of the purchase were agreed upon Everson filled in the blanks in the note in conformity with such agreement, and that immediately prior to the delivery of said note by Everson to Davlin, or immediately thereafter, Everson, without the knowledge or consent of Ms co-makers, erased Ms name on the note as one of the makers thereof; that when the note was thereafter delivered to the payee Moore by Ms agent Davlin, Moore refused to accept the same without the signature of Everson thereon and that the latter thereupon re-signed the same; that on May 26, 1902, appellees, partners, doing business as The People’s Bank of Kenney, received by mail from the Springfield Marine Bank, for collection, a draft for $1,500 drawn by Moore on Everson, to which draft the note sued upon together with the two other notes each for the like amount were attached; that upon the same day Everson induced appellees to retain said notes and to remit to said Springfield Marine Bank the amount of said draft; that appellees then indorsed upon each of said notes a credit of $100 as having been paid by Everson.

Moore testified unequivocally that at the time Ever-son re-signed the note in Springfield an agreement was entered into .between himself and Everson whereby Everson should purchase the three notes from him, and that the draft to wMch said notes were attached was drawn upon Everson in pursuance of such agreement. The mamler in wMch the transaction was conducted strongly tends to confirm the truth of Moore’s testimony. If the draft was paid by appellees for and on behalf of Everson, one of the makers of the note, such payment was in effect a payment by Everson, and he thereby became either the purchaser or the payor of said note.

In Gillett v. Sweat, 1 Gilm. 475, it was held that the payment of a note by one of two joint and several promisors operated to extinguish the note and the same result is held to attach where a note is assigned to one of several joint makers. Stevens v. Hannan, 88 Mich. 13; Kneeland v. Miles, (Texas) 24 Southwestern 1113; Gordon v. Wansey, 21 Cal. 77. It is conceded by appellees that if there is evidence in the record tending to show that Everson purchased the note in question the doctrine laid down in the cases cited would be applicable to the case at bar, but it is insisted that there is no such evidence in the record. What we have heretofore said sufficiently presents our views upon that question, and we are clearly of the opinion that upon that issue in the case the court erred in giving to the jury a peremptory instruction.

The fact that the note was altered by the erasure of the signature of J. I. Everson, one of the makers, is not controverted. Wh.eth.er the erasure of the signature of Everson constituted a material alteration of the instrument was a question of law for the court. Milliken v. Marlin, 66 Ill. 13; Hayes v. Wagner, 220 Ill. 256. Unquestionably, the erasure of the signature of one of the makers of the note, without the authority and consent of his co-makers, constitutes a material alteration of the instrument. The restoration of an instrument to its original form after an unauthorized material alteration therein, will not avail to revive the instrument and give it force. Hayes v. Wagner, 89 Ill. App. 390.

There can be no pretense in this case that the note after its alteration was ratified or acquiesced in, in its altered form, by all of the appellants.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baume

text:
    John W. Dickson et al., Appellants, v. George S. Turner, Appellee.

      Contbacts—remedies available for breach providing for purchase of land. Upon refusal to comply with the provisions of a contract to purchase real estate, two remedies are available to the vendor, namely, an action at law to recover damages for the breach, the measure of such damages being the difference between the market Value of the property on the day of the breach and the contract price, and a suit in equity for specific performance of the contract. In an action at law the vendor cannot recover the contract price for the land and still retain possession and title.
    Assumpsit. Appeal from the Circuit Court of Fulton county; the Hon. Robebt J. Gbiee, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Marvin T. Robison, O. J. Boyer and Harry M. Waggoner, for appellants.
    Chiperfield & Chiperfield and C. B. Adams, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit brought by John W. Dickson and Susanna C. A. Dickson, his wife, against George S. Turner. The declaration contains two counts. The first count alleges that the defendant was on April 1, 1907, indebted to the plaintiffs in the sum of $17,500 for the purchase price of certain described real estate under and by virtue of a certain contract entered into between plaintiffs and defendant, as follows;

“This agreement, made this 20th day of February, A. D. 1907, by and between John W. Dickson and Susanna C. A. Dickson, his wife, of the first part, and George S. Turner, of the second part, witnesseth, that for value received, each from the other, the parties hereto have agreed as follows:
“First. Said parties of the first part have this day sold to said party of the second part, all that part of the Southwest quarter of section twenty-four (24) that lies west of the public highway running North and South across the same, also the northwest quarter of the northwest quarter of section twenty-five (25), also twenty (20) acres in the southeast corner of the southeast quarter of section twenty-three (23), all in township six (6) north of the base line, in range three (3) east of tEe 4th P. M., Fulton County, Illinois, for the sum of $17,500, and agreed to give full possession of the same on the 10th day of March, A. D. 1907, and have executed a deed therefor to said party of the second part.
“Second. Said party of the second part has this day executed a promissory note for the sum of $2000, payable to the order of said John W. Dickson, on April I, A. D. 1907, with interest after maturity at the rate of 5% per annum, and agreed to pay the further sum of $15,000 to said party of the first part, at the Lewis-ton National Bank of Lewiston, Illinois, on said 1st day of April, A. D. 1907, in payment for said land.
“Third. It is further agreed that the said deed and said note are to be deposited, together with this contract, with Walter H. Rhodes, Cashier of the Lewis-ton National Bank of Lewiston, Illinois, to be held by him until said 1st day of April, A. D. 1907, at which time if said party of the second part pays said Rhodes for said parties of the first part the sum of $17,500, then said Rhodes is to give said Turner said note of $2000, and said deed and is to cancel this contract. If on said 1st day of April A. D. 1907, said Turner does not pay said Rhodes said sum of $17,500 for said parties of the first part, then said Rhodes is to deliver to said parties of the first part said note, said deed and this contract. Said note is given as a forfeit in the event of said Turner’s failing to comply with his part of this agreement.
“Fifth. If the said Turner fails to secure a real estate loan by said 1st day of April, A. D. 1907, and for that reason wants an extension of time of not to exceed sixty days the parties of the first part hereby agree that said Rhodes may hold said papers for sixty days after April 1st, A. D. 1907. If said party of the second part secures a loan at 5%, or any less rate without assistance of said John W. Dickson then said Dickson will pay said Turner $175. In the event said John W- Dickson should secure a loan for said Turner at 5% or any less rate, said Dickson is to charge no commission for his services but said John W. Dickson does not obligate himself to secure any loan for said Turner.
“Sixth. If the time of payment is extended, as above stated, then said Turner is to pay, in addition to said sum of $17,500, interest thereon at the rate of 5% per annum until said last mentioned sum is paid to said Rhodes which must be paid within 60 days after April 1, A. D. 1907.
John W. Dickson [Seal.]
Susanna C. A. Dickson [Seal.] George S. Turner [Seal.] ”

It is further alleged in the said count of said declaration that the deed mentioned in said contract was duly executed by the plaintiffs and deposited, together with said contract, with Walter H. Rhodes and was held by him until April 1, 1907, and ever since said time has been ready to be delivered to the defendant upon the payment of said purchase price; that the defendant being so indebted to the plaintiffs for said premises, in consideration thereof, then and there promised to pay to the plaintiffs the said sum of money mentioned in said contract, and that the defendant though requested has not paid the same, nor any part thereof to the plaintiffs, hut refuses so to do, to the damage of the plaintiffs of $20,000, etc.

“The second count consists of the common counts and further alleges that defendant was indebted to the plaintiffs in the sum of $20,000 for liquidated damages to be paid by the defendant to the plaintiffs in case of the failure of defendant to comply with his certain contract for the purchase of real estate of the plaintiffs, which said contract was in writing signed by the plaintiffs and defendant, and ready to be produced by plaintiffs upon the trial. To this declaration the defendant pleaded the general issue.

Upon the trial of the case before a jury when it was disclosed by the evidence that the defendant had never come into possession of the land described in the contract and in the deed made in pursuance of such contract, and that the said deed had never in fact been delivered to the defendant, and that the plaintiffs then and ever since the making of said contract and deed had been in the possession of said land, the trial court upon the objection of the defendant refused to admit in evidence the said contract and deed and the note for $2,000 provided by said contract to be given by the defendant to John W. Dickson, one of the plaintiffs, and upon the motion of the defendant instructed the jury to find the issues for the defendant. From the judgment entered upon such verdict the plaintiffs prosecute this appeal.

The contract for the sale and purchase of the land offered in evidence by plaintiffs was an executory and not an executed contract. Upon the refusal of the defendant to comply with the provisions of such contract two remedies were available to the plaintiffs, viz.: One an action at law to recover damages for its breach, the measure of such damages being the difference between the market value of the property on April 1, 1907, and the contract price; and the other a suit in equity for specific performance of the contract. In an action at law plaintiffs cannot recover the contract price for the land and still retain possession and title to the land. Elder v. Hood, 38 Ill. 533, relied upon by appellants, is not in point, because the contract there involved was an executed contract. Whether the note for $2,000 payable to the order of John W. Dickson, mentioned in the contract as having been executed by the defendant as a forfeit in the event of his failing to comply with his part of the agreement, be treated as a penalty or the amount agreed upon as liquidated damages in the event of a breach of the contract by the defendant, no recovery was sought upon said note by the declaration, and no recovery could be had thereon in this suit because the note was made payable to one of the plaintiffs individually. Plaintiffs were not entitled to a recovery in this suit under either count of their declaration and the court did not err in refusing to admit the evidence offered and in giving to the jury a peremptory instruction. The judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Appellant, v. George H. Haushalter, Appellee.
    1. County courts—jurisdiction to determine contested election. The County Court has by statute final jurisdiction to hear and determine a contested election held upon the proposition as to whether or not particular territory shall be saloon or anti-saloon.
    2. Elections—when city hound hy judgment rendered upon contest. A city if privy to the contest of an election, is bound by the judgment rendered therein, notwithstanding it was not a party by name.
    3. Constitutional law—when waived. By appealing to the Appellate Court all questions involving the constitutionality of a statute are waived.

      Quo warranto. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    George M. Seago, for appellant; Hamilton & Hamilton, of counsel.
    Rufus M. Potts and Alfred Adams, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On July 1, 1908, the state’s attorney of Jersey county by leave of court filed an information in the nature of quo warranto in the name of The People upon the relation of certain residents, legal voters and taxpayers in the city of Jerseyville, against appellee, wherein in the first count it is alleged that appellee held and executed without any warrant or right whatsoever a privilege or license to keep a dram-shop at and upon certain premises in the city of Jerseyville, in the town and county of Jersey; that at an election held in said town of Jersey for the election of officers of said town on April 7, 1908, there was submitted to the legal voters of said town and voted upon at said election the proposition, to wit: “Shall this town become anti-saloon territory?” And that at the said election a majority of 85 of the legal voters voting upon said proposition voted “yes,” and that by virtue of the said election and of the statute in such case made and provided, the said town of Jersey became and hitherto has been and is anti-saloon territory.

The second count alleges that at an election held at the city of Jerseyville in the said town of Jersey on April 21, 1908, for the election of officers of the said city, there was submitted to the legal voters of the said city and voted upon by them at said election, the proposition, to wit: “Shall this city become anti-saloon •territory,” and at said election a majority of 20 of the legal voters voting upon the said proposition voted “yes,” and thereupon the said city became and hitherto has been and is anti-saloon territory; that notwithstanding said election appellee now is and for more than 30 days last past has been engaged in the business of keeping a dram-shop in the said city of Jerseyville under and by virtue of a privilege or license issued to him therefor by the mayor and city council of said city, which said privilege or license is, by virtue of said election and by the statute in such case provided, wholly void and of no force and effect. For answer to the said information appellee filed his plea wherein he averred that as to the election held on April 7, 1908, in the town of Jersey as alleged in said information, the same was thereafter at the May term, 1908, of the county court of Jersey county in a proceeding then had in the said county court under and by virtue of the provisions of section 19 of an act entitled in part, “An Act to provide for the creation by popular vote of Anti-saloon Territory,” approved May 16, 1908, in force July 1, 1908, by the final judgment of said court set aside and wholly declared null and void as appears by a certified copy of said judgment which is made a part of said plea; that before and at the time of said election and since, there were and are valid subsisting ordinances of the city of Jerseyville (which city is situated wholly within the town of Jersey), which ordinances authorized the issuing of dram-shop licenses to persons to keep and conduct dram-shops in the said city, as appears by duly authenticated copies of said ordinances made a part of said plea.

The plea further formally avers the taking by appellee of the necessary steps to procure a license to conduct a dram-shop in the said city of Jerseyville, the issuance of said license by the proper authorities of said city to appellee, and the giving by appellee of the dram-shop bonds required by the statute of the state and by the ordinances of said city, and that appellee was conducting a dram-shop under and by virtue of said license.

The plea further avers that no election was held in the said city of Jerseyville on April 21, 1908, whereby the said city became anti-saloon territory and that the said city was not at the time said information was filed nor since anti-saloon territory. To this plea appellant interposed a general and special demurrer which was overruled by the court and appellant electing to abide the demurrer judgment was entered in bar of the action and for costs.

Several errors are assigned upon the record but the only one which is argued by appellant relates to the question whether the judgment of the county court of Jersey county, pleaded by appellee, constitutes a bar to the information filed by appellant as contended for by appellee. It is conceded by appellant that if such contention of appellee is correct the action of the court in overruling the demurrer to the plea was without error.

Section 19 of the Act relating to the creation by popular vote of anti-saloon territory provides, as follows:

“Any five legal voters of any political subdivision in which an election shall have been held as provided for in this act, may, within ten days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the county court of the county in which such political subdivision is situated, setting forth the grounds for the contest. Upon the filing of such petition, a summons shall forthwith issue from such court addressed in cases of an election in a town, city or village, to the town, city or village clerk, as the case may be; and in other cases to the county board, notifying such clerk or board of the filing of such petition and directing him or it to appear in such court on behalf of such political subdivision at the time named in the summons, which time shall be not less than five nor more than fifteen days after the filing of such petition. The procedure in such cases shall be the same as that provided by law for the contesting of an election upon a subject which shall have been submitted to a vote of the people, so far as applicable. The County Court shall have final jurisdiction to hear and determine the merits of such cases. Any legal voter in the political subdivision in which such election shall have been held may appear in person or by attorney, in any such contested case in defense of the validity of such election.”

In Saylor v. Duel, 236 Ill. 429, it was held that the provision in said section that “the County Court shall have final jurisdiction to hear and determine the merits of such cases,” must be construed as a denial of the right to an appeal from the judgment of the County Court in contests under the statute of which said section forms a part, and that “By conferring upon the County Court ‘final jurisdiction’ the jurisdiction of all other courts subsequent to the determination in the County Court is ex vi termini excluded.”

It is urged that the County Court was without jurisdiction to determine the validity of the election and that its jurisdiction was limited solely to the determination of the question whether or not there were more votes cast for the proposition than against it. By the express language of the statute jurisdiction is conferred upon the County Court in a proceeding to “contest the validity of such election,” and giving to the word validity the meaning and significance commonly applied to it we have no doubt that said court is vested with jurisdiction to declare such an election invalid upon a proper showing.

It is said that quo warranto being a common law remedy and the Circuit Court being vested by the common law with the power to entertain jurisdiction in such a proceeding, the statute cannot constitutionally oust the Circuit Court of that jurisdiction. The argument upon this question might with propriety be addressed to the Supreme Court for consideration, but as this court is without jurisdiction to consider and determine it appellant has waived the question by appealing to this court.

It is further urged that the people are not bound by the judgment of the County Court because they were not made parties to the proceeding wherein said election was adjudged to be invalid. While not a party to such proceeding by name the people in their sovereign capacity were privy thereto by force of the public legislative enactment whereby final jurisdiction was conferred upon the County Court to hear and determine the merits of the proceeding to contest the validity of such election.

The demurrer to the plea was properly overruled and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    J. Eugene Flint, Appellee, v. Illinois Hotel Company, Appellant.
    Inns and inn-keepers—when responsibility attaches with respect to baggage. Where baggage is delivered to the inn-keeper as the baggage of an intended guest who within a reasonable time thereafter actually becomes a guest, the responsibility of the innkeeper for the safe-keeping of the baggage relates back to the time when the baggage was delivered.
    Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Lillard & Williams, for appellant.
    Stone & Oglevee, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee, a traveling salesman, against the Illinois Hotel Company, appellant, conducting a hotel at Bloomington, Illinois, to recover the value of a suit-case and its contents alleged to have been delivered to a servant of appellant to be kept for appellee as a guest of the hotel, which suitcase and its contents were thereafter lost. Upon the hearing of the case before the court without a jury there was a finding and judgment against appellant for $63.75.

The evidence tends to show and the court was warranted in finding, that appellee upon his arrival at Bloomington by train at about 5:30 p. m., on January 22, 1908, delivered his suit-case and sample case to one Hendryx, the agent of a local transfer company, with directions to deliver the same to appellant; that Hendryx carried said baggage to the hotel conducted by appellant and delivered the same to the head porter employed in said hotel, at the same time stating to the porter that the owner of the baggage would be there for dinner in a few minutes; that appellee arrived at the hotel about 6:15 p. m. when he registered, and upon his request to be assigned a room was informed by the clerk that they were short on rooms at that time and that he, appellee, had better wait until later in the evening before having his room assigned; that appellee then went to dinner and thereafter attended a revival service, returning to the hotel about 10 p. m., when a room was assigned to him; that he then called for his baggage and it was ascertained that his suitcase was missing, but that his sample-case was on the floor in the corridor of the hotel, between the hotel office and the cheek room; and that said suit-case was not thereafter recovered by appellee.

In the recent case of Rockhill v. The Congress Hotel Co., 237 Ill. 98, it was held that an inn-keeper owes the duty and assumes the obligation of safely keeping the property of his guests, and if the property is lost all that is necessary to make a prima facie case is to show the relation of inn-keeper and guest and the loss; that the burden is then cast upon the innkeeper to exonerate himself and this he may do by showing that there has been no negligence on the part of himself and his servants, or that the loss was caused by the personal negligence of the guest or some one for whom the guest was responsible, or by superior force. The relation of inn-keeper and guest may be, and was in this case, established by the reception of the baggage by the inn-keeper. Where the baggage is delivered to the inn-keeper as the baggage of an intended guest who, within a reasonable time thereafter, actually becomes a guest, the responsibility of the inn-keeper for the safe keeping of the baggage relates back to the time when the baggage was delivered. Eden v. Drey, 75 Ill. App. 102.

In the case at bar the delivery of the baggage by Hendryx, the agent of appellee, to the proper servant of appellant, was, in effect, .a delivery of such baggage by appellee to appellant, and the duty was thereby imposed upon appellant to safely keep such baggage until called for by appellee within a reasonable time after its reception.

Appellant seeks to avoid responsibility upon the ground that a general custom prevailed in its hotel and in hotels of like character whereby guests of the hotel, for their own convenience, placed or directed their baggage to be placed upon the floor of the hotel lobby or corridor. If appellee had placed his baggage upon the floor of the hotel, or had directed the same to be so placed, the question sought to be raised by appellant would be involved, but in the absence of any evidence of such conduct on the part of appellee the question is purely academic.

The finding and judgment of the Circuit Court was right and will be affirmed.

Affirmed.


text:
    Annie B. Walker, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Evidence—collateral matters should be excluded. If upon cross-examination of a witness he has stated that he had had trouble with one of the parties to the action, it is error, in a close case, to permit such witness upon redirect to state the particulars of such trouble where the character of the recital was such as would tend to prejudice the jury.
    2. Negligence—what does not tend to rebut. Negligence is not a matter of intention, and it is proper to refuse to permit a witness to state why a particular act was not done, the not doing of such act being the basis of the charge of negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard In this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    W. R. Curran, for appellant; Winston, Payne, Strawn & Shaw, of counsel.

      Jesse Black, Jr., and Wm. A. Potts, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment in the Circuit Court of Tazewell county against appellant for $3,000 as her damages alleged to have been occasioned by the negligence of appellant in failing to keep its station and platforms and approaches thereto, in the town of Normal, properly lighted and in a reasonably safe condition.

The evidence discloses that appellant and the Illinois Central Bailroad Company maintain a joint depot at Normal; that the two main tracks of appellant are located north of said depot, and that the main track of the Illinois Central Bailroad Company is located west of said depot; that the depot platform adjacent to the south main track, which is the north bound track, is 234 feet in length and 12 feet in width at the point where the accident occurred, and that at that point said platform is elevated 14 to 18 inches above the roadbed of appellant’s track; that between the north main track, which is the south bound track, appellant maintains a wooden platform for the accommodation of its passengers desiring to board and alight from its south bound trains; that at a point about 75 feet east from the depot is a cross-walk connecting the main depot platform with the platform between appellant’s two main tracks, which cross-walk is six feet in width and practically on a level with the top of the rails upon appellant’s track; that from appellant’s depot platform to said cross-walk there is. a step of 8 inches; that there were two oil lamps in the waiting room of the depot, and an oil lamp set upon a post at the south edge of the depot platform and almost directly opposite the cross-walk above mentioned; that there were four arc lamps located as follows: One on Broadway street at a point 578 feet west of the depot, one on Linden street, at a point 485 feet east of the depot, one on or near the Illinois Central right of way at a point 340 feet south of the depot, and one on or ■ near said right of way at a point 328 feet north of the depot.

The evidence further discloses that about 6:15 p. m. on October 13, 1907, appellee accompanied by her sister, her father, her son and her little daughter arrived at the depot for the purpose of becoming a passenger to Minier upon the south bound train of appellant scheduled to leave Normal at 6:25 p. m. ; that upon arriving at the depot appellee purchased two tickets and ascertained that appellant’s south bound train was ten minutes late; that after checking her baggage she sat in the waiting room until the arrival of the train at 6:35 p. m.; that upon the arrival of said train, the same stopped so that the platform of the chair car nearest the locomotive was at a point about 20 feet east of the cross-walk leading from the depot platform to the platform between the two main tracks of appellant; that appellee went east from the depot on the depot platform for the purpose of reaching the platform between the two main tracks, by means of the cross-walk, and that when she reached a point upon the depot platform where she supposed the said crosswalk to be located, she stepped off the depot platform and in doing so fell to the ground and upon the. rail and track and sustained serious and permanent injuries.

The evidence is close and conflicting as to the degree of darkness which prevailed at the time and place appellee was injured, as bearing on appellee’s due care for her own safety, and the negligence of appellant as alleged in the declaration.

It was disclosed by the evidence that upon the day of the accident the sun set at 5:25 p. m., and that the moon then in its first quarter set at 10:19 p. m. Whether the moon shown sufficiently at the time in question to afford any appreciable light, or whether it was then partially or temporarily obscured, are disputed questions. It is conceded, however, that excepting the light which may have been afforded by the moon it was then so dark as to require artificial light to enable a person, in the exercise of reasonable care for his own safety, to make his way from the depot to the train platform.

It is uncontroverted that the two lamps in the depot waiting room were lighted and that the lamp upon the post near the cross-walk where appellee fell was not lighted. We are not persuaded that the lighted lamps in the depot waiting room shed any light at the place where appellee was injured. It is insisted on behalf of appellant that the place where appellee fell was sufficiently illuminated by the lighted lamps in the passenger coaches and by the four arc lamps heretofore mentioned.

The evidence leaves the mind in serious doubt as to whether or not the arc lamps were then lighted, and there is nothing in the evidence which discloses the extent to which said arc lamps when lighted would shed rays of light at the junction of the cross-walk and the depot platform. It is a matter of common knowledge that while the lamps in the dome of a passenger coach may illuminate the interior of the coach, they do not cast any considerable light on objects upon the outside, and that they are not relied upon by a railroad company to furnish sufficient light to enable passengers to get off and on its trains. The evidence bearing upon the material issues involved is of a character which requires substantial accuracy in the application of well recognized rules of evidence and in the instructions to the jury, to the end that the jury might not be influenced or prejudiced against appellant in their consideration and determination of the case.

Upon the cross-examination of Doctor F. C. McCormick, a witness called on behalf of appellee, counsel for appellant interrogated the witness as to his relations with the appellant, whether friendly or otherwise, and the witness stated that since May 23, 1906, Ms relations with appellant had been friendly, or as it might be said indifferent. Counsel for appellant then asked the witness if it was not true that in May, June or July, 1906, he had had a difficulty with appellant, and the witness replied that it might be said there had been a little difficulty. Counsel for appellant then said: “And that difficulty has made you unfriendly to the C. & A. B. B. Co.” The witness replied that it had not and that he had not been unfriendly to appellant since May, 1906. Upon Ms redirect examination the witness was asked by counsel for appellee what he referred to that might be termed a difficulty, and the witness was then permitted to answer over the objection of appellant, that there was a man hurt upon appellant’s railroad by a train of appellant about ten or eleven o’clock at night; that the man had Ms arm cut off and crushed above the elbow, Ms leg crushed above the knee and his spine injured; that the man was picked up by the town marshal and two employes of appellant and brought down to the freight depot where the witness was called to attend him; that he was taken to the hospital where the witness amputated Ms arm and leg, and where he died within about twelve hours; that the witness presented Ms bill to appellant for his services which bill appellant refused to pay; that after some correspondence with the superintendent of appellant, the nature of wMch the witness detailed, he did not press the subject any further but let it go as a matter of profit and loss. There is no. possible ground upon which the testimony of the witness as to this extraneous matter was competent, and in a case as close upon the facts as is the one at bar its effect could not have been other than to prejudice and influence the jury against appellant.

It was the province and duty of the trial court to pass upon the objections urged by counsel for appellant to such questions as counsel might deem incompetent and immaterial and the record discloses that the trial court was called upon to perform this duty without cessation during the examination of almost every witness. In their zeal to serve their clients counsel sometimes indulge a habit of objecting when it must be apparent that no valid ground of objection exists. Objections of the character indicated do not tend to preserve a record but rather tend, as is suggested by counsel, to cause the jury to infer that the trial court, by repeated rulings against the objections, is adverse to the position of the objecting party upon the merits of the case. The injury resulting from such an inference by the jury, would be very appreciably obviated if counsel would limit their objections to matters which they believe in good faith to be objectionable.

The court did not err in refusing to permit the witness Henry V. Jones to state the reason why the lamp upon the post was not lighted. Negligence is not a matter of intention and any reason which the witness might have advanced would have been merely by way of argument and" incompetent.

We have carefully considered all of the other objections urged by counsel on behalf of appellant and find nothing therein worthy of special mention, further than this, that a reasonably careful adherence by counsel to well established rules of law and the conservation of the interests of their several clients will, doubtless, upon another trial of the case, obviate all such questions.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Earl Halberg, Appellant, v. Citizens Coal Mining Company, Appellee.
    1. Mines and Minees Act—who cannot recover for wilful violation. A person injured through the wilful violation of the Mines and Miners Act cannot recover if he does not bring himself within the class of those for whose benefit the particular provision which is alleged was violated, was enacted.
    2. Mines and Miners Act—when declaration charging wilful violation does not state cause of action. Held, that the declaration in this case, which was filed by one who had been employed as an attendant, did not state a cause of action in that the injury complained of did not appear to have proximately resulted from the wilful violation complained of.
    3. Negligence—when proximate cause question of law. What is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury, but it can arise as a question of law when the undisputed facts are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn therefrom.
    Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the Hon.' Thomas M. Harris, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Peter Murphy and Baldwin & Stringer, for appellant.
    Beach, Hodnett & Trapp, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by Earl Halberg, a minor, by his guardian and next friend against the Citizens Coal Mining Company to recover damages for personal injuries alleged to have been sustained by him by reason of the wilful violation by said defendant of certain provisions of the Mines and Miners Act, and also by reason of the negligence of said defendant. The declaration contained five counts designated as two original counts and three additional counts.

Defendant pleaded the general issue to the two original counts and demurred to the three additional counts. The court sustained a demurrer to the first additional count and overruled the demurrers to the second and third additional counts. The plaintiff elected to stand by the first additional count and the case was submitted for trial by a jury on the first and second original and second and third additional counts. At the close of the evidence for the plaintiff the suit was dismissed as to the first original count and upon motion of the defendant the court gave to the jury a peremptory instruction to find the defendant not guilty as to the second original and second additional counts. The case proceeded to trial upon the third additional count, which alleged common law negligence, and resulted in a verdict and judgment in favor of the defendant.

The only question presented for our consideration upon this appeal relates to the action of the court in sustaining the demurrer to the first additional count of the declaration. Said count of the declaration alleges that on March 15, 1907, the defendant was possessed of and owned and operated a certain coal mine with a coal shaft, passageways, entries, tracks, cars and mules for excavating and mining coal; that from the bottom of a large shaft there was a certain passageway in and along which passageway rails and tracks were constructed whereby cars were hauled by draft animals to and from the rooms where coal was mined to the bottom of said shaft; that in and across said passageway certain permanent doors, used in guiding and directing ventilating currents of air in said mine, were constructed about 80 yards apart, through which doorways cars were hauled to and from the workings in said mine, and that it was the duty of said defendant to keep employed at each of said principal doorways an attendant for the purpose of opening and closing said doors when trips of cars were passing through the same; that plaintiff was then employed by the defendant as an attendant and it then and there became and was the duty of defendant to place and keep plaintiff as snch attendant at some certain one of said principal doorways for the purpose of opening and closing the doors when trips of cars were passing to and from the workings of said mine; that defendant wilfully failed to place or keep plaintiff as such attendant at some one of said principal doorways, but on the contrary directed and required said attendant "to attend and open two of said principal doors and four stub doors, and that in order to open and close said doors as so directed and required by defendant, plaintiff was obliged in said passageway to pass certain trips of cars as they were being hauled in and along said passageway and through said doors.- The said count further alleges that while plaintiff was in the performance of his said duties in said passageway as such attendant, he was, by means of the wilful failure and negligence of defendant in the premises, struck, crushed and injured by certain cars, of one of said trips of cars so being hauled, and then and there passing in and along said passageway, etc.

Clause F of Section 19 of the Mines and Miners Act provides in part, as follows: “At all principal doorways, through which cars are hauled, an attendant shall be employed for the purpose of opening and closing said doors when trips of cars are passing to and from the workings. Places for shelter shall be provided at such doorways to protect the attendants from being injured by the cars while attending to their duties.” Assuming for the sake of the argument, as is contended by plaintiff, that this clause of the statute requires a mine operator to employ a separate attendant at each principal door, it is manifest that the legislative purpose in requiring the employment of such attendant was to provide for the safety of those employed in the mine by its proper ventilation, and for the safety of the drivers employed in the mine while passing to and from the workings therein through said principal doors.

The first additional count of the declaration does not allege the improper ventilation of the mine as being the cause of the injury to the plaintiff, neither does it allege the wilful failure of defendant to provide a place of shelter for plaintiff as being the cause of his injury.

As bearing upon the question of proximate cause, here involved under the allegations of the first additional count of the declaration, it has been held that persons for whose benefit a statute was not intended can acquire no rights in consequence of the omission by others to comply with its provisions. In other words, that a person seeking to recover for an injury alleged to have resulted from the violation of a statute must bring himself within the class contemplated to be protected by the provisions of such statute. C. C. C. & St. L. Ry. Co. v. Halbert, 179 Ill. 196; Lumaghi v. Voytilla, 101 Ill. App. 112; Rosan v. Big Muddy Coal & Iron Co., 128 Ill. App. 128. What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury, but it can arise as a question of law when the undisputed facts are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn therefrom. I. C. R. R. Co. v. Siler, 229 Ill. 390. The rule that a pleading is to be taken most strongly against the pleader is so elementary that it requires the citation of no authority to support it.

As to the cause of the injury the count of the declaration in question alleges that while the plaintiff was in the performance of his duties in the passageway of the mine as an attendant, he was, by reason of the wilful failure and negligence of the defendant in the premises, struck, crushed and injured by certain cars of one of the trips of cars, so being hauled, then and there passing in and along said passageway. It is not alleged that defendant wilfully failed to provide a passageway of sufficient width or to provide places of refuge in such passageway or to provide a place of shelter at the door in such passageway as required by the statute. In the absence of any averment to the contrary it must be presumed that the passageway in question was provided with a clear space of 2y2 feet between the car and the rib, or that it was provided with places of refuge not more than twenty rods apart as required by the statute, and that a place of shelter was provided for the plaintiff at the door. Hot having been injured by the wilful failure of the defendant to provide plaintiff with a place of shelter at the doorway, and being at the time of his injury in a passageway provided with all the means required by the statute for his protection, it is obvious that the wilful failure of the defendant to provide a separate attendant at all principal doorways was not the proximate cause of plaintiff’s injury, but that such'injury'must have resulted from some new and independent cause intervening between said alleged wilful failure and such injury. It not appearing from the allegations of the count of the declaration in question that the wilful failure of the defendant therein alleged was the proximate cause of the injury complained of, the demurrer thereto was properly sustained and the-judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Christian Ruehle, Appellant, v. Joseph K. Montelius, Appellee.
    1. Pleading—rule of construction. A pleading is to be taken most strongly against the pleader.
    2. Statute of frauds—when forbearance as a consideration insufficiently alleged. Forbearance to bring an attachment action against the original debtor is insufficient to support a promise to pay the debt oí another if it is not alleged that the one forbearing to sue in good faith believed himself entitled to maintain such action and actually intended to bring it.
    3. Statute of fbauds—when original undertaking sufficiently alleged. Meld, that the declaration in this case set up a good cause of action by the plaintiff against the defendant as upon an original undertaking.
    Assumpsit. Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Schneider & Schneider, for appellant.
    Cloud & Thompson, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

To the declaration in this case, which contains five counts, the defendant interposed general and special demurrers, which were sustained by the court, and plaintiff electing to abide his declaration and each count thereof, judgment was entered against him in bar of his action and for costs.

Plaintiff’s case as alleged is fully set forth in what are designated the first and second additional counts of his declaration. The first additional count avers that one William McLaughlin was indebted to plaintiff in the sum of $500 for goods and chattels theretofore delivered by the plaintiff to said McLaughlin, and that in consideration that the plaintiff would forbear and would not bring a certain attachment suit against the said McLaughlin and against said certain goods and chattels, which attachment suit the plaintiff was then and there intending to bring against said McLaughlin, of which intention the plaintiff had informed the defendant, the said defendant undertook and then and there promised plaintiff to pay bim the said sum of $500; that confiding in said promise and undertaking of defendant, plaintiff did forbear and did not bring an attachment suit against the said McLaughlin and against the said goods and chattels, and that the defendant though often requested has not paid the said sum of money or any part thereof.

The-6 second additional count avers the same indebtedness by McLaughlin to the plaintiff and that the plaintiff went to said McLaughlin and requested the payment by him of said indebtedness; that McLaughlin then and there gave to the plaintiff a written order on the defendant requesting the defendant to adjust the said indebtedness in any way he saw fit, and in said written order the said McLaughlin turned over all of his money and property to the said defendant; that the plaintiff took the said written order to the defendant and then and there told the defendant that in case the said indebtedness was not immediately paid the plaintiff would forthwith sue out an attachment suit against the said McLaughlin and against the said goods arid chattels; that the said defendant then and there made out an order in writing and requested plaintiff to take the same-to the said McLaughlin and have him attach his signature thereto, which said order was to the effect that the said McLaughlin had turned over all his money and property to the said defendant to pay plaintiff out of said money and property the said indebtedness; that the defendant then and there promised and agreed with the plaintiff that if the plaintiff would forbear and not bring an attachment suit against the said McLaughlin and against certain goods and chattels, he, the said defendant, would pay the said indebtedness; that plaintiff relying on the promises of the defendant did. not then and there or thereafter bring an attachment suit against the said McLaughlin and against the said goods and chattels as he had intended to do, but did then and there release the said McLaughlin of the said indebtedness and charge the same against the said defendant ; that plaintiff took the above mentioned order prepared by the defendant to McLaughlin, and said order was then signed by McLaughlin and returned by plaintiff to defendant and that defendant then and there accepted the same. The demurrers to the declaration and the several counts thereof were sustained upon the ground that the cause of action as therein alleged was within the Statute of Frauds.

It is elementary that a pleading is to be taken most strongly against the pleader. People v. Grand Trunk Ry. Co., 232 Ill. 292. Tested by this rule the several counts of the declaration except the second additional count were faulty and the demurrers to the said several counts were properly sustained.

True, a detriment to the promisee is as valid a consideration as a benefit to the promisor (Milby v. Mowry, 125 Ill. App. 417), but the averments of a declaration when tested by demurrer are insufficient, if the facts alleged do not show a detriment to the promisee when that ground of recovery is relied upon.

It will be observed that the pleader does not allege any facts from which it can be determined that the plaintiff had even a reasonable ground to believe that an attachment suit instituted by him against McLaughlin, or his goods and chattels, would avail plaintiff anything. While it is not necessary that a certain right of recovery should exist, if a suit which is alleged to have been forborne was brought, it must appear that the one forbearing to sue should in good faith have believed himself entitled to maintain his suit, and that he actually intended to institute the same.

The case at bar is clearly distinguishable from the cases cited and relied upon by appellant, in which it appears that the forbearing party had, or claimed in good faith to have, an existing right as a lienor or otherwise to realize his indebtedness, the recovery of which by suit or enforcement of his lien was claimed to have been forborne.

In Wilson v. Bevans, 58 Ill. 232, it was said: “The general rule is, that if the promise is in the nature of an original undertaking to pay the debt of a third party, and is founded on a valuable consideration received by the promisor himself, it is not within the provision of the statute, and need not be in writing, to make it valid and binding.”

Where A being indebted to B surrenders certain property to C and C thereupon promises B to assume and pay A’s indebtedness, the promise of C is an original and not a collateral undertaking, and is not within the Statute of Frauds. Meyer v. Hartman, 72 Ill. 442; Rothermel v. Bell, 79 Ill. App. 667; Knisely v. Brown, 95 Ill. App. 516; Chicago Heights Lumber Co. v. Miller, 219 Ill. 79.

The averments of the second additional count of the declaration, while somewhat inartificial, must, when fairly construed, be held to constitute a good cause of action by the plaintiff against the defendant as upon an original undertaking, predicated upon the surrender by McLaughlin of certain money and property to the defendant in consideration of which the defendant promised to pay the plaintiff the amount due and owing to him from McLaughlin, and whereupon the plaintiff released McLaughlin from his indebtedness.

It follows that the general and special demurrers to the second additional count should have been overruled, and the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.