text:
    Isaac N. Miller v. Nathan B. Craig.
    1. Burden of proof — Instruction.—Where plaintiff, who had other claims against defendant, sued him as surety on a note, and defendant by his plea of payment had taken upon himself the burden of proof of showing payment of the note, an instruction which assumed that a receipt which showed that money was paid in full on account, the note and judgment not being mentioned, was primo facie evidence of the payment of the note, and that the burden of contradicting it and overcoming a prima facie case of payment was on plaintiff, was erroneous.
    2. Instructions — Account not in issue. — As the plaintiff was not seeking to recover on the Iowa account and it was not in issue, the eighth instruction is erroneous in assuming that it was, and drawing in question the Statute of Limitations for the purpose intended by the instruction.
    3. Evidence — Husband and wife. — -In an action based upon a promissory note against the surety of the note, it is error to permit the wife of the principal of the note to testify in favor of the surety, to show payment of the note by her husband, who, though not a party, was interested in the event of the suit.
    Error to the Circuit Court of Jo Daviess county; the Hon. Wm. Brown, Judge, presiding.
    Opinion filed February 5, 1885.
    Messrs. D. & T. J. Sheean, for plaintiff in error;
    as to application of payments, cited Hare v. Stegall, 60 Ill. 380; Wilhelm v. Schmidt, 84 Ill. 183.
    As to burden of proof: Howard v. Bennett, 72 Ill. 297; Douglas v. Pfeiffer, 46 Ill. 102; Un. Nat Bk. v. Baldenwick, 45 Ill. 375; Watt v. Kirby, 15 Ill. 200.
    Mr. M. Y. Johnson, for defendant in error.
   Lacey, J.

This suit was in assumpsit, commenced by the plaintiff in error against the defendant in error in the circuit court, May 5, 1880, and was based on a joint and several promissory note, dated Council Bluffs, May 4, 1870, given by W. It. Craig as principal, and the defendant in error as surety, for $800, one day after date, payable to P. M. Spencer, with 10 per cent, interest from date, and indorsed by Spencer to Miller. In March, A. D. 1881, plaintiff in error recovered judgment against defendant in error for $1,666.66, which was affirmed in this court, May term, 1881, but reversed by the Supreme Court on appeal, 103 Ill. 605. On a second trial there was a verdict and judgment for the defendant, and the plaintiff now brings the case here by writ of error. The pleas in the case are the general issue and payments by "W. R. Craig, the principal in the note. It appears that the plaintiff, at the time of the alleged payment on May 3, 1880, which will be mentioned hereafter more particularly, had claims against the defendant in error as follows: The note in suit, the validity of which is not disputed, and also a judgment in favor of Scott & Miller against W. R. Craig, in Pottawatomie county, Iowa, dated Aug. 30, 1871, for the sum of $1,975.43 and costs, of which judgment plaintiff was the owner in May, 1870, by succession to the assets of Scott & Miller, and its validity is not disputed; and also a book account of P. M. Spencer against W. R. Craig, balance being $1,199.25, and assigned January 17, 1880, by Spencer to plaintiff, the validity of which is not disputed. The first payment which W. R. Craig made to plaintiff was $900, May 1, 1880, sent by draft by mail inclosed in a letter from Nebraska City, Iowa, and directed to plaintiff in error, the draft being made payable to P. M. Spencer, the letter not explaining where it was to be applied. The next payment was $1,700, and was the last, and was acknowledged by a receipt given by plaintiff in error, as follows: Received, Nebraska City, May 3, 1880, of W. R. Craig, seventeen hundred dollars, in full of my account against him, provided that if more is got from'the State of Iowa, then he is to pay me the balance of my account, or its proportion of it.” Signed “J. A. Miller.” The defendant in error had a claim against the State of Iowa for building an insane asylum, which he claimed was not paid. The dispute between these parties hinges on the points whether, as is claimed by defendant in error, the last payment was made upon final settlement between them of all the above claims, and whether the $900 was intended to be applied on the open account assigned by Spencer to Miller, or was a proper credit on the note, or whether the $1,700 was by mutual understanding applied on the judgment alone and the $900 on the account, as maintained by plaintiff in error, leaving the note unpaid, and that there was not a final settlement of all claims of plaintiff against defendant.

Testimony was introduced tending to support the position of each party, and was quite conflicting; but we are not called upon in the necessary decision of the case to express any opinion as to which had the greater weight or preponderance of the evidence in his favor, and therefore express none.

A number of minor points are assigned for error that we will not notice, as they can be corrected if any fault is in them, or they may not and probably will not occur on another trial. Bu t the serious objections arise on the giving of certain instructions for the defendant in error. Before we notice them, however, we will say that we see no cause of complaint against the action of the court in modifying plaintiff’s twelfth instruction or in refusing to give his thirteenth. The first was properly modified, so as to avoid telling the jury by implication-that they must find the full amount of the note against defendant. The refusal of the thirteenth could not harm plaintiff, as it instructed the jury, if they found the issues for plaintiff, they must find the full amount of the note, principal and interest. The jury did not find the issues for plaintiff, so the amount of the note was immaterial; and again, it might have been error, as the jury might have found that something had been paid to reduce the amount of the note, even if the issues were found for the plaintiff.

The plaintiff’s counsel take exceptions to .the giving of the defendant’s second, third, seventh and eighth instructions. As to the second and third instructions, we see no serious objection, but the seventh and eighth we regard as erroneous. They are as follows:

7th. “ The court instructs the jury that a receipt in full of an account is to be taken to be in full of all accounts between the parties at the time it was given, but it may be contradicted by parol testimony; and it' plaintiff sets up that the receipt of $1,700 was given in settlement of a judgment, and not as the receipt appears upon its face, the proof is on the party so contradicting the receipt to establish by a preponderance of evidence that the payment was made on the judgment, and not as shown by the receipt; and if the jury believe from the evidence that the evidence is equally balanced on that point, whether it was paid on the judgment or as set out on the face of the receipt, then the plaintiff has failed in law to establish that fact; he holding the affirmative, that it was paid on the judgment, must prove the same by a preponderance of evidence. The receipts, and all the surrounding facts and circumstances in evidence, are to be considered by the jury in determining on the preponderance of evidence. By preponderance of evidence in law is meant the larger amount of credible evidence to prove the issue in controversy.”

8th. “ The court instructs the jury that the account offered in evidence in this cause, as the same appears on its face, is barred by the Statute of Limitation under the laws of the State of Iowa, and before the party can recover on the same where the Statute of Limitation is pleaded, there must be an absolute and unconditional promise to pay the same within five years; and a promise that the debtor would pay the creditor whenever the State of Iowa would pay him, is not a promise that will revive the debt until the State of Iowa pays him.”

The seventh instruction is misleading and intended to injure the plaintiff in error. The effect of it is to cast the burden of proof on the plaintiff in error, to show that the note was not paid. The defendant in error had taken the onus upon himself by the plea of payment. The plea of the general issue compelled the plaintiff in error to introduce the note in evidence; when that was done, a prima facie case was established. To establish the defense of payment, defendant in error introduced his receipt, showing that $1,700 was'received by plaintiff in error in full satisfaction of his account against defendant in error, etc., etc.; but this on its face did not establish, the payment of the note prima faoie. It only showed that money was paid in full on account, the note and judgment not being mentioned. In order, then, to prove payment of the note, he introduced parol evidence tending to show all the circumstances under which the money was paid, what claims were in existence, and what was said between the parties, and that all of plaintiff’s claims were intended to be settled. Then he rested his case. The plaintiff in ei-ror then introduced his evidence in rebuttal, claiming that it could not have been so intended, but that the money was intended by both parties to apply on the judgment alone. The evidence was contradictory, and from it all and the surrounding circumstances, taking the receipt into account, it’was a question for the jury to determine whether the claim of payment and settlement made by defendant in error had been established, the burthen of proof in the meantime remaining on the latter. There was no point in the evidence of defendant in error tending to show payment at which the defendant could have stopped, and the court have decided that he had made out a prima facie case. It was a question foiythe jury and not the court to say whether payment had been established, and after the rebuttal evidence had been introduced it was still for them to say — all the evidence considered — whether defendant in error had established the payment of the note which he by his plea had taken the bur-then of doing. If the evidence were equally balanced on the question of payment, then plaintiff in error should succeed on that issue. The instruction, in assuming that the receipt was prima facie evidence of the payment of the note, and that the burthen of contradicting it and overcoming a prima facie case of payment was on plaintiff in error, was erroneous and should not have been given.

The eighth instruction was also misleading. The account mentioned in it was the one which Spencer assignedjto plaintiff in error, and upon which the payment of §900, as claimed by him, was paid by’W. R. Craig, and denied by defendant in error claiming that this sum was paid on the note. The plaintiff was not seeking to recover on this account at all, and it was not in issue, and the instruction is erroneous in assuming that it was, and drawing in question the Statute of Limitations for the purpose intended by the instruction. The only purpose or relevancy we can see that the Statute of Limitation of Iowa could be as evidence]would be to show that the claim was barred and not subsisting, and that W. E. Craig would not be likely voluntarily to pay it. Even then the testimony of Spencer— that he promised to pay it within the Statute of Limitations, and other evidence of like nature, should be considered bearing on the same point. Besides, if it were clearly established that the claim was barred at the time the $900 and $1,700 items were paid by W. E. Craig, the defendant was still at liberty to pay it, the Statute of Limitations notwithstanding, and the only question would be, did he do so. A debt barred by the Statute of Limitations is a good consideration either for a promise of, or payment itself. But the instruction seemed to hold that W. E. Craig had no power to pay the account. As to the note sued on, it is not an account, and no plea of the Statute of Limitations had been interposed against it, and the statute of Iowa does not mention written contracts. The instruction settled the entire controversy in favor of defendant in error as to whether the payment of $900 paid by W. E. Craig was or could be by possibility applied on this Spencer account, the instruction virtually telling the jury that it could not be, because the account was barred by the Statute of Limitations of the State of Iowa.

We notice that while the fifth of the defendant in error’s instructions is not complained of, it appears to have about the same fault as the seventh referred to above, and it is more conclusive because it assumes that the receipt is conclusive proof that all the plaintiff’s claims were settled, including the note by settlement of the 3d dav of May, 1880, and virtually instructs the jury to find for the defendant upon the proof of a settlement and the introduction in evidence of the receipt, without any further proof as to what was settled in the settlement of June 3,1880, whether the judgment alone, or whether all plaintiff’s demands, including the note.

Another assignment of error is that the court permitted Mrs. Eowena Craig, wife of W. E. Craig, the principal in the note, to testify in favor of the defendant in order to show payment of the note by her husband, W. R Craig, he being interested in the event of the suit. This evidence was for the benefit of the husband, for in case the recovery on the note was defeated the defendant would have no claim against W. R. Craig, for reimbursement, as he would have if recovery was had and he compelled to pay the note. Therefore this testimony was in direct interest of the witness' husband. At common law the evidence of neither W. R. Craig nor his wife would have been allowed. But our statute has rendered W. R. Craig a competent witness, but in our opinion, not his wife.

In Sec. 1, Chap. 51, R-S. 1874, it was provided “that no person shall be disqualified as a witness in a civil action, snit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof as a party or otherwise. It seems that when we consider section five of the same statute, that the legislature understood that when the first section was adopted and without any qualifying clause, it was broad and comprehensive enough to allow a husband and wife to testily for and against each other in all cases the same as other witnesses, but in order to qualify and restrict that section, number five was adopted, which restricted them from testifying for and against each other in any case except as they were permitted by this section. It is that “ no husband or wife shall, by virtue of section Ho. 1 of this act, be rendered competent to testify for and against each other as to any transaction or conversation occurring during the marriage” * * *“ except in cases where the wife would,if unmarried, be plaintiff or defendant * * * and except in cases where the litigation shall be concerning the separate property of the wife * * * in all of which easés the husband and wife may testify for and against each other in the same manner as other parties may nnder-the provisions of this act, etc. Hence it would seem that unless the statute in some clause in section Ho. 5 gives the wife the right to testify for her husband’s benefit in a case like this, where he is interested, then she would have no such right. We find no such enfranchisement in the exceptions set forth in section five. But section Ho. 1 gives the husband the right to testify, for his own benefit in all cases, where only the objection on account of In's interest could be made, and he is only prohibited by certain exceptions in the statute not affecting the questions here involved. It is true that in Gravel Road Co. v. Madaus, 102 Ill. 417, the opinion of Judge Dickey, who wrote the main opinion in the case, holds that in that case, like this, where the husband was interested, or in the judge’s opinion was interested, in the event of the suit, though not a party, his wife was competent to testify in favor of and for the benefit of the party calling her, whose interest was the same 'as that of her husband; that she was competent to testify in that suit where the effect of her testimony was to benefit her husband when called by the party interested in the same way with her husband. The judge held that the statute had enfranchised her in that case but would not in a case where her husband was a party to the record, except in those cases pointed out in section five. The question presented to us here and which was presented there, as Judge Dickey held, was decided by him to have been new at that hearing in that court. The judge held that at common law the wife could not be a witness for her husband where he was a party, or where her husband had an interest in favor of the party calling her, because his interest as a party, or otherwise, disqualified him, and the law held the interest of the husband and the wife to be the same. The judge reviews the common law in regard to where the wife could and where she could not be a witness, and the policy thereof, in a learned and interesting manner, but it is not necessary to notice it here further in order to make our decision intelligible. But he decides that in this kind of a case the statute gives her the right to testify by reason of giving her husband the right, her evidence not being against public policy concerning the married relation. If this opinion.had been concurred in by a majority of the court it would undoubtedly be decisive of this case, but four of the judges out of the seven — Walker, Craig, Scott and Sheldon, as we understand their dissenting opinions, repudiate the reasoning and decision of Judge Dickey on the point in question, but decided that Mrs. Harms was a competent witness on other grounds, and so we can not regard that case as authority. In the later case of Smith et al. v. Long, 106 Ill. 485, the court seem inclined to construe the statute more strictly and seem not to favor the repeal and modification of the common law by implication arising from the statute. They say “we hold under the act of February 14, 1867, husband or wife are competent witnesses for or against each other only in cases mentioned in the exceptions to section five of that act,” citing Mitchinson v. Cross, 58 Ill. 366, and Gravel Road Co. v. Madaus, 103 Ill. 417, seeming to sanction the dissenting opinions in the latter case. Hence we conclude that Mrs. Craig was not, under our statute, a competent witness, and that it was error in the court below to allow her to testify.

We think the court also erred in not allowing plaintiff in error to prove that W. R. Craig had paid out to his other creditors the $34,000, and to show what the pro rata share was on plaintiff’s judgment, as Craig had testified he paid out pro rata as a circumstance bearing on the question of whether the payment of the $1,700 was intended to be applied on plaintiff’s judgment alone. The jury could give it what weight they might think it deserved in view of all the other evidence in the case. The other objections we will not notice.

For the above reasons the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wilson, P. J.

license: Public Domain

text:
    City of Chicago v. Milton Hickok.
    1. Traveling on sidewalk — Presumption.—A person traveling upon a sidewalk of a city which is used by the public, has a right to act upon' the presumption that such sidewalk is in a reasonably safe condition, and free from dangerous obstructions, but it is his duty to exercise reasonable' and ordinary care and prudence to avoid danger.
    2. Instructions — Degree op care. — An instruction which substitutes the injured party’s own judgment, in place of such judgment as men of ordinary care and prudence would have exercised, is erroneous. It prescribes an erroneous measure by which to gauge the degree of care required.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed February 10, 1885.
    This was an action on the case, brought by appellee against the city of Chicago, to recover damages for a personal injury alleged to have been received by him through the negligence of the city in suffering a sidewalk along which appellee was passing, to be obstructed by a quantity of old building material, which had been thrown out of a building across the walk and into a part of the street, thereby rendering it impracticable to pass except by going out into the street. Appellee and his son were going west on Adams street on the sidewalk, and on approaching the obstruction and attempting to pass around it, appellee’s foot was caught in the rubbish, and he was thrown onto the pavement, dislocating his shoulder, and causing the injuries complained of. It was in the night time and there was no red light or other danger signal placed on the obstruction, but the evidence tended to show that it was visible by the reflection of the electric lights of the exhibition building not far distant; and it appeared that appellee saw the obstruction in time to prevent his running against it. By stepping back a few feet there was nothing to prevent his passing around it in safety.
    There was a jury trial resulting in a verdict for the plaintiff for fifteen hundred dollars, upon which there was judgment, and the city appealed to this court.
    Mr. Clarence A. Knight, for appellant.
    Mr. Randall H. White and Mr. A. B. Baldwin, for appellee.
   Wilson, P. J.

Various grounds for the reversal of the judgment are urged, of which we find it necessary to consider only one. The plaintiff’s third instruction relates to the degree of care which the law requires of a person, when placed in a situation of danger, such as the evidence in the present instance tended to show. It is as follows: “ The jury are instructed as a matter of law that any person traveling upon a sidewalk of a city which is in constant use by the public, has a right, when using the same with ordinary care and diligence, to presume and to act upon the presumption that such sidewalk is reasonably safe for ordinary travel throughout its entire width, and free from all dangerous obstructions placed thereon; and if, while so passing along such sidewalk in the exercise of ordinary care and diligence, in the night time, one finds himself unable to proceed because of obstructions negligently suffered to be on such sidewalk, which bar or hinder his further progress along said sidewalk, then it is lawful and proper for such person to retrace his steps or to turn aside in such manner as to him seems safe and best, so as to avoid such obstructions; and if, while so doing, and in the exercise of ordinary care and prudence, such person is unavoidably brought in contact with such obstructions so negligently left on such sidewalk, if such there were, and in consequence thereof is thrown down and injured while exercising ordinary care and prudence to avoid being injured, in such case the city would be liable, provided yon find from the evidence the city had either such actual or constructive notice of such obstructions, if such there were, as is mentioned and described at the end of instruction number nine, given for the defendant in this case Given.”

While it is true that persons traveling upon a sidewalk of a city which is used by the public have a right to act upon the presumption that such sidewalk is in a reasonably safe con. dition and free from dangerous obstructions, it is also true that it is his duty to exercise reasonable and ordinary care and prudence to avoid the danger. He is held to the use of such care and caution as men of ordinary prudence would exercise under like circumstances, otherwise his misfortune will be chargeable to his own folly. This principle is too familiar to require the citation of authorities for its support. The degree of care required by the instruction is measured by no such standard. Bv-it the jury were told that if one, while passing along a sidewalk in the night time, finds himself unable to proceed because of obstructions negligently suffered to be on such sidewalk, which bar or hinder his further progress along said walk, then it is lawful and proper for such person to retrace his steps in such manner as to him seems safe and best,” so as to avoid such obstructions; and if, while doing so, and in the exercise of ordinary care and prudence, he is thrown down and injured, the city is liable, etc. By the rule as thus laid down the party injured is allowed to retrace his steps orhurn aside in such manner as to him seems safe and best, although O to men of ordinary care and prudence the manner would be deemed to be wholly unsafe and imprudent. It may be that he exercised ordinary care in respect to the means or manner which he adopted, but the question is, was the manner adopted such a one as men of ordinary care' and prudence would have selected. The vice of the instruction consists in substituting the injured party’s own judgment, however faulty it may have been, in place of such judgment as men of ordinary care and prudence would have exercised. It is not enough for one to say, “ I thought the course I pursued was the best.” He must adopt such a course as to men of ordinary prudence, placed in like circumstances, would appear to be the best. The instruction thus prescribed an erroneous measure by which to gauge the degree of care required of the plaintiff, and was liable to mislead the jury.

As the ease is to be submitted to another jury, we express no opinion upon the merits, but for the error in giving said instruction, the judgment is reversed and the cause remanded to the court below for a new trial.

Reversed and remanded.


author: Bailey, J.

text:
    Chicago, Milwaukee & St. Paul Railway Co. v. Albert Standart.
    1. Risks of employment — Defect in machinery. — An employe can not recover for an injury suffered in the course of the business about which he is employed, from defective machinery used therein, where he had full knowledge of the defect and continued in the employ without objection and was not induced by his employer to believe a change would he made.
    2. Duty of railroad — Condition of engines and road. — An instruction to the effect that a railroad company is hound to do all that human care, vigilance and foresight could reasonably do consistent with the modes of conveyance and the practical operation of its road, to keep its road and engines in a safe and good condition. Held, that such instruction imposes too strict a rule of diligence.
    Appeal from the Circuit Court of Cook county; the Hou. John Gr. Rogers, Judge, presiding.
    Opinion filed February 10, 1885.

      Messrs. Walker & Carter, for appellant;
    cited Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; St. L. & S. E. Ry. Co. v. Britz, 72 Ill. 257; C. & A. Ry. Co. v. Munroe, 85 Ill. 25; Penn. Co. v. Lynch, 90 Ill. 333; Wharton’s Law on Negligence, §214; Ill. Cent. R. R. Co. v. Jones, 11 Bradwell, 324.
    As to duty of railroad company: T. W. & W. Ry. Co. v. Asbury, 84 Ill. 429; C. & N. W. Ry. Co. v. Scheuring, 4 Bradwell, 533; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; North Chicago R. M. Co. v. Monka, 4 Bradwell, 664; Price v. Henagan, 5 Bradwell, 234; Penn. Co. v. Lynch, 90 Ill. 333.
    Mr. A. D. Carter, for appellee;
    as to duty of railroad company, cited T. P. & W. R. R. Co. v. Conroy, 68 Ill. 567; C. & A. R. R. Co. v. Platt, 89 Ill. 143; Lewis v. W. L. & J. M. R. R. Co., 59 Mo. 495; Snow v. Housatonic R. R. Co., 8 Allen, 441; Holmes v. Clarke, 6 Hurl. & N. 349; 2 Thompson on Negligence, 985,
   Bailey, J.

This was an action on the case brought by Albert Standart against the Chicago, Milwaukee & St. Paul Bailway Company to recover damages for a personal injury received by the plaintiff, while in the employ of the defendant as a fireman on a switch engine, in the defendant’s yards in Chicago. It appears that some three or four minutes prior to the injury another engine had so collided with a freight car standing on a contiguous track, as to partially overturn it and throw one corner of it over onto the track on which the plaintiff was about to pass with the switch engine. The obstruction thus placed upon the track was not perceived by the plaintiff until the instant the engine collided with it, and then, to save himself from injury, he sprang from the engine to the tender and thence to the ground, and in so doing severely sprained one of his ankles.

The declaration consists of two counts, of which the first charges the defendant with negligence in failing to keep said track free from obstruction. The second count charges negligence in failing to have the .engine on which the plaintiff was employed properly connected with its tender by an apron or covering extending over the space between them; and also in not providing a sufficient force of competent men to run and operate its trains in a safe and proper manner, and to keep its switches and tracks in a proper and safe condition.

The plaintiff, at the time, had been employed on said engine about one week, and during all that time the apron which usually covers the space of six or eight inches between the engine and tender had been wanting. At the trial, the court, at the instance of the plaintiff, gave to the jury the following instruction:

“ The jury are instructed as matter of law, that the defendant was bound to do all that human care, vigilance and foresight could reasonably do, consistent with the modes of conveyance, and the practical operation of its road, to have and to keep its road and locomotive engines and attachments in a safe and good condition, and if the jury believe, from the evidence, that the plaintiff was injured by the neglect of the defendant, in the manner charged in the declaration, in respect to either of these things, while he was using ordinary care for his own safety, and due care and diligence in the discharge of his duties, then they shall find for the plaintiff.”

The jury, by their verdict, found the defendant guilty, and assessed the plaintiff’s damages at $500, for which sum and costs the court gave judgment for the plaintiff

The foregoing instruction directed a verdict for the plaintiff, in case the jury found that he was injured by the negligence of the defendant, in respect to either of the matters charged in the declaration, provided they also found that he was in the exercise of ordinary care. The defect in the engine, which the evidence tends to show contributed to the injury, was a matter which was obvious, and which the plaintiff must be presumed to have known during all the time he was at work on the engine. Not only is this so, but he admits that he observed it. and spoke to his engineer about it the day he commenced working. Having entered upon and continued in the defendant’s service, with full knowledge of the defect in the engine, he must be deemed to have assumed all risk of injury therefrom.

“ The doctrine upon this subject seems to be that an employe can not recover for an injury suffered in the course of the business about which he is employed, from defective machinery used therein, after he had knowledge of the defect, and continued his work, it being held, that upon becoming aware of the defective condition of such machinery, he should desist from his employment; but if he does not do so, and chooses to continue on, he is deemed to have assumed the risk of such defects, at least when he had not been induced by his employer to believe that a change would be made, and had not plainly objected.” Camp Point Manfg. Co. v. Ballou, 71 Ill. 417. The foregoing doctrine has been repeatedly reaffirmed in this State. See C. & E. I. R. R. Co. v. Geary, 110 Ill. 383, and cases there cited.

It follows that, even though there may have been negligence contributing to the plaintiff’s injury, in permitting the engine to remain out of repair, such negligence can not be the basis of a recovery, since the plaintiff elected to continue to work on the engine without objection, after full knowledge of the defect. This rule, however, was wholly ignored in the instruction.

We are also of the opinion that the instruction is erroneous in another respect. It lays down the rule that the defendant was bound to do all that human care, vigilance and foresight could reasonably do, consistent with the modes of conveyance and the practical operation of its road, to keep its road and engines in a safe and good condition. This, we think, is imposing upon the railroad com pany much too strict a rule of diligence. We are aware that there are decisions of the Supreme Court, in which language is used veiw much like that employed in the instruction, in defining the degree of care which an employer is bound to use in providing safe and suitable machinery and appliances for the use of his employes, but we think that it is not in accordance with the current of authority either in this or other States. In Pennsylvania Co. v. Lynch, 90 Ill. 333, it is said: “The mere relation of master and servant can never imply an obligation on the part of the master to take more care of a servant than he may reasonably be expected to take of himself.” Nearly the saíne language is employed in Missouri Furnace Co. v. Abend, 107 Id. 44.

The true rule is, that both are held to the exercise of reasonable and ordinary care. In Camp Point Manf’g Co. v. Ballon, supra, the rule is laid down in the following language: “As respects his duty toward an employe, in his service, the employer is not bound to provide absolutely safe machinery. The law imposes upon the employer only the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery. The machinery is not required to be the best or most improved kind, or to be absolutely safe. It is sufficient if it is reasonably safe.”

While it is somewhat difficult to determine upon the basis of any known classification, the precise degree of care intended to be specified in the instruction, it is clear that a jury would be likely to understand it as requiring a degree much higher than what is ordinarily understood by reasonable or ordinary care. It was thus calculated to mislead the jury, and should not have been given.

For the error in giving the instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    John Dawson v. Jane Dawson.
    Chancery — The same equitable rules applied by the Supreme Court in case of the former appeal (Dawson v. Dawson, 110 Ill. 279) apply as well to the order in this case.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed February 10, 1885.
    Mr. M. R. Freshwaters, for appellant;
    cited Newman v Newman, 69 Ill. 167.

      Mr. Frank A. Johnson, for appellee.
   Bailey, J.

Jane Dawson having previously obtained a decree against her husband, John Dawson,for a divorce, and for the payment to her of $150 per month for her alimony and the maintenance of her children, filed a petition for an increase of her alimony, and the court, on said petition, entered an order requiring the defendant to pay the petitioner $175 instead of $150 per month, together with the costs of the proceeding; and also to pay her solicitor $200 for his services in the matter of the petition. From this order the defendant appealed to this court.

The appeal having been perfected, the petitioner filed a further petition for an order requiring the defendant to pay her solicitor’s fees and other necessary expenses to be incurred in defending the appeal, and upon that petition the court entered an order requiring the defendant to pay the petitioner $80 to defray the expense of printing briefs, etc., and also to pay her solicitor the further sum of $150. From this latter order the defendant has prosecuted the present appeal.

The former of these orders being affirmed by this court the case was taken to the Supreme Court where, after full consideration, it was held that there was no sufficient reason for filing the petition, and that, under the circumstances, the petitioner should pay her own solicitor’s fees and the costs of the proceeding. It was thereupon ordered that the decree increasing the amount of alimony and directing the payment of $200 to the solicitor be reversed. Dawson v. Dawson, 110 Ill. 279.

It is clear that the same equitable rules applied by the Supreme Court in case of the former appeal, apply as well to the order now under consideration. If there was no reason for filing the former petition, the present one is equally without merit. The decree will, therefore, be reversed at the costs of the petitioner.

Decree reversed.


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    J. Dietrich Heimsoth v. James Anderson, etc.
    1. Right of action. — Where plaintiff was injured by the bite of a dog and it was shown by the evidence that the cost of medical attendance was incurred and paid for by plaintiff’s mother and not by plaintiff, the right to recover the cost of medical attendance would accrue to the mother and not the son.
    2. Instruction — Exemplary damages — An instruction authorized the jury to award such damages for the injuries sustained, as they might think proper and right in view of all the evidence. Held erroneous, in that no hypothesis upon -which exemplary damages might properly be awarded was submitted, and such direction was broad enough to include exemplary as well as compensatory damages.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed February 10, 1885.
    Messrs. Brandt & Hoffmann, for appellant;
    as to instructions, cited Keightlinger v. Egan, 65 Ill. 236.
    Mr. James F. Latham, for appellee;
    as to notice, cited Twigg v. Ryland, Chicago Legal News, Oct. 25, 1884; Cooley on Torts, 344.
    The case at bar was essentially a case for exemplary damages; Keightlinger v. Egan, 65 Ill. 236; Marsh v. Jones, 21 Vt. 378; Woolf v. Chalker, 31 Conn. 121; Wheeler v. Brant, 23 Bar. 324.
   Bailey, J.

This was an action on the case, brought by James Anderson, by his next friend, against J. Dietrich Ileimsoth, to recover damages for injuries suffered by the plaintiff from the bite of a dog, which, as he claims, belonged to the defendant. On the 17th day of June,,1882, the date of the injury, the plaintiff, then a child a little over three years old, was playing in an alley near his home, in the city of Chicago, when a dog came through a hole in the fence along the alley and bit him. The evidence as to the ownership of the dog was conflicting, but there is evidence tending to show that he belonged to the defendant. There is also some evidence tending to show that the dog was of a cross disposition, and had been known to chase other persons, and that at least on one previous occasion he had bitten another child.

The evidence also tends, in some degree, to charge the defendant with notice of the disposition and conduct of the dog.

It appears that the plaintiff received a severe flesh wound on his thigh, which was several weeks in healing, during which time he received treatment from a surgeon. The entire expense incurred for medicines and medical attendance, so far as the evidence shows, was $12, and that expense is shown to have been paid by the plaintiff’s mother.

At the trial, the court gave to the jury, among other instructions, the following:

“If the jury believe from the evidence, under the instructions of the court, that the plaintiff is entitled to recover in this case, then, in assessing his damages, the jury are at liberty to take into account the extent of plaintiff’s injuries, so far as they have been shown by the evidence, the pain and suffering endured by him, if any, in consequence of such injuries, and the cost of medical attendance, if such costs have been proven, and award such damages for the injuries sustained as the jury may think proper and right, in view of all the facts and circumstances proved on the trial.”

The jury found the defendant guilty, and assessed the plaintiff’s damages at $444, for which sum and costs the plaintiff had judgment.

The foregoing instruction is clearly erroneous. The jury were thereby authorized and instructed, in assessing the plaintiff’s damages, to take into account the cost of medical attendance, although such cost is shown by the evidence to have been incurred and paid for by the plaintiff’s mother and not by the plaintiff. Under these circumstances, it is clear that the right to recover the cost of medical attendance accrued, not to the plaintiff, but to his mother.

Bat the instruction is also erroneous in authorizing the jury to award such damages for the injuries sustained, as they might think proper and right, in view of all the evidence. This direction is broad enough to include exemplary as well as compensatory damages, but the instruction fails to submit any hypothesis upon which exemplary damages may properly be awarded. Exemplary or vindictive damages may be given where the act complained of is committed or accompanied with malice, violence, oppression, willful neglect, or wanton recklessness. Drolin v. Brewer, 77 Ill. 280; Peoria Bridge Association v. Loomis, 20 Id. 235. But unless some one of the foregoing elemints is present, compensatory damages only should he awarded. Pierce v. Millay, 44 Ill. 189; Williams v. Reil, 20 Id. 147; Jones v. Jones, 71 Id. 562.

A very similar instruction was condemned by the Supreme Court, in Keightlinger v. Egan, 65 Ill. 235. In commenting on it the court say: “The instruction was wrong upon the point of damages, in telling the jury they might find for the plaintiff such damages as in their judgment, from the evidence in the cause, the plaintiff ought to recover. This left the jury free scope to give such damages as, according to their individual notions of right and wrong, they might think the plaintiff ought to recover, unguided by any legal rule of damages, and without regard to the damages sustained.”

For the error in giving said instruction, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Chicago City Railway Co. v. Patrick Hennessy, Adm’r, etc.
    1. Contractor. — One who contracts to do a specific piece of work, furnisking his own assistants, and executing the work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant.

      2. Contract to build cable system — Non-liability of company. —Where a company contrauted with A to build a designated cable system, with certain specified materials to be furnished by the latter, and the question of how or where A should procure the materials was a matter with which the company had no concern, and A, for his own convenience and benefit, used a certain machine on the street to make the concrete with, and B, a child, while playing around the machine, was injured, and an action for damages was brought against the company. Held, that the company is not liable.
    Appeal from the Superior Court of Cook county; the lion. Joseph E. Gary, Judge, presiding.
    Opinion filed March 3, 1885.
    Messrs. Hynes, English & Dunne, for appellant;
    as to non-liability of employer where work is given to contractor, cited Kepperly v. Ramsden, 83 Ill. 354; Hale v. Johnson, 80 Ill. 185; Scammon v. Chicago, 25 Ill. 424; West v. St. L., V. & T. H. R. R. Co., 63 Ill. 545; Pfau v. Williamson, 63 Ill. 16; Prairie State L. & T. Co. v. Doig, 70 Ill. 52; DeForrest v. Wright, 2 Mich. 268; McGuire v. Grant, 25 N. J. 356; Butler v. Hunter, H. & N. 826; 31 L. J. Exch. 214.
    The same rule applies in case of corporations: Nevins v. Peoria, 41 Ill. 502; Joliet v. Seward, 86 Ill. 402; City of Chicago v. Robbins, 2 Black, 428.
    Messrs. Clifford, Anthony & Paulsen, for appellee.
   Wilson, P. J.

This was an action on the case under the statute, brought by Patrick Hennessy, as administrator oí James Hennessy, deceased, against the Chicago City Bailway Company, to recover damages for the benefit of the next of kin, for injuries to the deceased, resulting in his death. The errors mainly relied upon for reversal are, first, improperly giving and refusing instructions as to the exercise of care on the part of the deceased and his father, and second, that the liability, if any exists, is not that of the railway company, but of one Holmes, the contractor, for building the road.

So much of the facts as needs to be stated to present the questions of law involved, substantially as follows: The railway company entered into a written contract with C. B. Holmes for the construction, by the latter, of an endless cable railway on State and other streets in the city of Chicago, commonly known as the “grip car” railway. By the terms of the contract Holmes was to furnish all material and complete the road for the sum of $1,500,000. While engaged in the prosecution of the work the deceased, a boy about eight years old, ■and another boy, were playing around an apparatus called a conveyor,” which consisted of a long trough in which was a revolving screw driven by steam, and so constructed as to push forward, when in motion, sand or other material placed therein, to a point where it was dumped into a concrete mixer. The deceased got onto the top of the conveyor and when the engine started he was drawn into the machine and killed.

In the view we take of the case, it is not necessary to "consider the questions arising on the instructions relating to the duty of the deceased, or his father, in respect to the observance of care, and we proceed directly to inquire whether the defendant company or Holmes is liable for the injury, if a liability is shown.

It is claimed by the defendant that inasmuch as the entire work of building the road was let by the company to Holmes, a competent and independent contractor, free from all control or supervision on the part of the railway company, that the workmen were in the employ of Holmes in his individual capacity, and in no way subject to the control of the company; that it was work from which, if properly done, no injurious consequences could arise, and that it was not a nuisance per se but a lawful public improvement; the railway company is not liable for the negligent use by the contractor of implements or machinery selected and used by him, and not provided for nor required by the contract. The court below refused to give various instructions asked for by the defendant, embodying substantially the law as thus claimed by the defendant. The 9th was as follows:

“The jury are instructed that if they believe, from the evidence, that the defendant company let the contract for the construction of the cable system, for running its cars on State street, to C. B. Holmes, retaining no control over the manner in which he should prosecute the work, the machinery he should employ, or the workmen he should employ, and that the said Holmes was using the machine in question for the purpose of mixing or manufacturing some of its materials for the prosecution of said work, under said contract,'and that the deceased in this case came to his death through the negligent use of said machine by the workmen of said contract, or while engaged about the manufacture of said materials, then the defendant in this case can not be held liable, and your verdict should be not guilty.”

The principle deducible from the authorities in this and other States seems to be that when an entire work, including materials, is committed, without any right of supervision, interference or control, to a competent and independent contractor, the party authorizing the work is exempt from liability for injury resulting from the negligence or wrongful act of the contractor, which the person letting the work had no reason to anticipate. In such case the contractor is not to be deemed the servant or agent of the party authorizing the work, so as to render the latter liable for the negligence of the former. A reference to a few cases will be sufficient to illustrate this doctrine.

In Scammon v. City of Chicago, 25 Ill. 424, where the owner of premises had employed a contractor to erect buildings thereon, including sidewalks and an area around them, (the owner giving no order or directions to the contractor or his workmen as to the manner of doing the work) it was held by the Supreme Court reversing the judgment below, that the owner was not liable for an injury occurring to a stranger through the negligence of the contractor in leaving the premises without sufficient protection.

In Pfau v. Williamson, 63 Ill. 16, the same doctrine is announced, it being held that where the owner of a lot in a city contracts with a reliable and competent builder for the erection of a house thereon, including a cellar under a sidewalk in the street, and surrenders possession of the property to the builder for the purpose of the work, and the work is not done under the direction of the owner, and an injury ensues to a third person from the negligence of the contractor and not of the owner, such contractor is not the servant of the owner, and is alone liable for the injury inflicted.

So in Hale et al. v. Johnson, 80 Ill. 185, Hale and Moss contracted with Rowe to excavate for the foundations of a building which the latter was about to erect, for which they were to be paid a stipulated price when the work was finished. They had the exclusive supervision and control of the work, and employed and paid all the laborers. The plaintiff was hired by them as a day laborer about the work and was injured through the carelessness of the contractors. He brought suit against the contractors and Rowe, the owner of the premises, and recovered against all of them. The Supreme Court reversed the judgment as to Rowe, saying that while a master is responsible for injuries arising from the negligence of his servant, it is the doctrine that a party who has contracted for the doing of certain work for his use and benefit, is not liable for injuries arising in the performance of such work,” citing Scammon v. City of Chicago, supra; 2d Hilliard on Torts, 537; Wharton on Neg., Sec. 181, and other authorities.

A similar case is Kepperly v. Ramsden, 83 Ill. 354, where the plaintiff sued to recover damages sustained by her in consequence of falling into an excavation in the sidewalk, made for the purpose of constructing coal vaults for the adjoining building. The suit was against the owner of the pretnis ;s and the contractors. The court held that it was the duty of the contractors, who had exclusive control of the work, to provide sufficient safeguards around the excavation, and that the owner of the premises was not responsible for their failure or neglect of duty. They say, “We can add nothing on this hr inch of the law to what we have said in our former decisions, and for a fuller expression of our views, we make reference to a few of them,” citing Scammon v. Chicago, 25 Ill. 425; Pfau v. Williamson, 63 Ill. 20.

In West v. St. Louis, V. & T. H. R. R. Co., 63 Ill. 545, the defendant railroad company contracted with the firm of McKeen, Smith & Go., to build its road and appurtenances. The firm hired the plaintiff to work upon a freight house. He was injured by inhaling the exhalations from a poisonous mixture applied to the timber to prevent decay, and he brought suit against the railroad company to recover damages for the injury. The defense was, that the liability, if any, was upon the contractors and not the railroad company. The defense prevailed in the trial court, and was affirmed by the Supreme Court. The plaintiffs, in support of their claim of liability against the railroad company, cited Lesher v. Wab. Nav. Co., 14 Ill. 85; Ohio & M. R. R. Co. v. Dunbar, 20 Ib. 623; Chi., St. P. and Fond du Lac R. R. Co. v. McCarthy, Ib. 385; Ill. C. R. R. Co. v. Finnigan, 21 Ib. 646; Same v. Kanouse, 39 Ib. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ib. 143; Chi. & R. I. R. R. Co. v. Whipple, 22 Ib. 105. But the court held that those cases were distinguishable from the case then before the court, and Chief J ustice Lawrence, who delivered the opinion, said, by way of illustrating the distinction: But where a railroad company contracts with A to dig and wall a well upon its right of way, and agrees to pay. him five hundred dollars when the work is completed, and A hires B to assist him in the work, and in its performance B is injured through the carelessness of A, as for example, by his knowingly using decayed and worthless tackle for raising earth from the well, surely it would not be contended that B could bring an action against the company for the injuries received. The reason, of course, is because A in hiring B was exercising his own private right as an individual, for his own benefit, and was not acting as the servant or agent of the company. The company had not authorized him to employ B, and the latter, in accepting employment from A, could only look to him to furnish the proper machinery or pay the proper wages.” To the same effect is Nevins v. City of Peoria, 41 Ill. 502.

A like doctrine obtains in other States, and in the English courts. Thus, in Hilliard v. Richardson, 3 Gray, 349, where the owner of land employed a carpenter, under a written agreement and for a specified price, to alter and repair a building thereon, and to furnish all materials therefor, and an injury happened to a third person from boards deposited in the highway in front of the building, by a teamster in the employ of the carpenter, and intended to be used in making the repairs, the law on this subject is discussed at great length in the opinion of the court, and the conclusion reached that the owner was not liable, he not standing in the relation of master to the contractor, and not having given any directions for depositing the boards in the highway. See, also, to the same effect, Hundhausen v. Bond, 36 Wis. 29; Storrs v. Utica, 17 N. Y. 104; Pack v. Mayor, 8 N. Y. 222; Blake v. Ferris, 1 Selden, 48; Palmer v. Lincoln, 5 Neb. 137; Smith v. Simmons, a recent case decided by the Supreme Court of Pennsylvania, and found in 16 L. Reporter, p. 282.

In the well considered English ease, Reedie v. London and N. W. Ry. Co., found in the 4th Exch. R. 1849, pp. 244-254, the railway company contracted with certain persons to build a portion of its line, and by the contract reserved to itself the power of dismissing any of the contractors’workmen for incompetence.

The workmen in constructing a bridge over a public highway, negligently caused the death of a person passing beneath along the highway, by allowing a stone to fall upon him. It was held in an action against the company, that it was not liable, notwithstanding the reservation by the company of the right to dismiss incompetent workmen. The case was discussed very fully and a large number of cases reviewed. Among other things, the court said: “If the defendants had employed a contractor to repair their engines or carriages, and the contractor’s workmen had negligently caused a heavy piece of iron to fall on a bystander, it would appear a strange doctrine to hold that the defendants were liable.”

Wharton states the doctrine thus: “One who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant.”

In the case at bar, the accident arose from the prosecution of work by the contractor purely collateral to the construction of the road. The company contracted with Holmes to build a designated cable system, with certain specified materials to be furnished by him, among which were engines, wire, concrete, etc. How or where the contractor should procure such materials, was a matter with which the company had no concern. The contract did not provide how or where the concrete should be procured or mixed, much less that it should be mixed in a machine like the one which caused the injury; nor was Holmes the agent of the company in procuring and using the machine. The making of the concrete upon the street and the use of the machine, was the idea and device of Holmes for his own convenience and benefit. The company could not interfere or control as to where he should procure or manufacture his materials, and he might manufacture them in the public street if the municipal authorities did not object. The use of the machine was notone of the natural contingencies which the company were required to anticipate, nor which it could have provided against. Its use was only subsidiary to the performance, by the contractor, of his undertaking.

We are of the opinion that, under the facts shown, the railway company is not liable, and that the court erred in not giving the defendant’s 9th instruction and the other instructions involving the same proposition of law. The judgment is reversed and the cause remanded.

Be versed and remanded.


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    The Adams and Westlake Mfg. Co. v. Carlos C. Cook.
    1. Written contract — Extrinsic evidence. — In a written contract where the language is equivocal or doubtful, it is proper to look to extrinsic circumstances, particularly those surrounding the execution of the instrument, to ascertain the meaning the parlies intended to convey by the language employed to express their agreement. But the intention which the courts will enforce must be that which is expressed in the writing.
    2. Question op construction. — The interpretation or construction of written contracts is a question of law fur the court. Where resort is had to extrinsic evidence for light as to the proper construction of the writing, the court may require the jury to find the facts established by such evidence, but it should itself determine the proper construction to be given to the instrument in the light of the facts as submitted to the jury.
    8. Instructions. — As the instructions in this case not only authorized the jury to find an intention not expressed in the writing, but also to find one directly contradictory to the one expressed, they were erroneous.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed March 3, 1885.
    This was a suit in assumpsit, brought by Carlos A. Cook against the Adams & Westlake Manufacturing Company upon the following instrument:
    “ Chicago, June 23, 1879.
    “ In order to secure general newspaper advertising, we hereby authorize O. A. Cook & Company, advertising agents, of Chicago, Illinois, to make all advertising contracts in our names, with the publishers of different newspapers, also with the union or co-operative publishers of newspapers, in accordance with the agreement or form for that purpose. The number of times that our advertisement is to be inserted, to be left to the discretion of C. A. Cook & Company, and the contracting parties, but not less than two insertions in each paper. In consideration of C. A. Cook & Company making such contracts, we hereby agree to pay C. A. Cook & Company the sum of two dollars for each and every agreement made by them with such publishers or parties, on delivery to us of such contracts. Contracts maybe made for our advertising in any newspaper in the United States. We also agree to furnish all cuts or stereotypes to all publishers for all advertising.
    “ The Adams & Westlake Manufacturing Company,
    by Armour.”
    The plaintiff, shortly after the date of said instrument, procured and delivered to the defendant advertising contracts to the number of 1,480, or thereabouts, said contracts being executed by filling up and signing a blank form, furnished by the defendant to the plaintiff for that purpose. All of these contracts, witli the exception of about 26, were signed by the proprietors of certain union or co-operative publishing establishments, who were each engaged in editing and printing one side of a large number of sheets and furnishing the same to the proprietors of weekly country papers, to be used by them in publishing their respective papers. Of said contracts 732 were signed by one A. N. Kellogg, of Chicago; 141 by the Cincinnati Newspaper Union; 368 by the Chicago Newspaper Union; 116 by the Southern Newspaper Union, and 77 by the Milwaukee Newspaper Union. The following is a copy of one of the contracts signed by Kellogg, all the other contracts being like it, except as to the name and location of the newspaper mentioned and the signature, and except that, in case of the few contracts made directly with the proprietors of newspapers, the words, “ on the co-operative side ” were omitted.
    ORIGINAL CONTRACT AND ORDER.
    Chicago, June 23, 1879.
    We hereby agree to furnish to the order of the publisher or publishers below named one No. 3, or 3-burner, non-explosive oil stove and furniture, on the terms and conditions of the contract hereunder written and printed.
    The Adams & Westlake Mfg. Co.
    We hereby agree to insert in the Vedette, published at Panora, State of Iowa, the advertisement, as per copy, of the Adams & Westlake Mfg. Co., Chicago, Ill., to be publislied weekly (on the co-operative side) for the term of two weeks.
    The payment for above advertising to be made by said The Adams & Westlake Mfg. Co., in a ¡No. 3, non-explosive oil stove and furniture, as described on the margin of this contract.
    DESCRIPTION.
    [Our ¡No. 3, or 3-burner, non-explosive oil stove, with patent 2-hole top oven, Cornwall’s patent broiler, flat-iron, heater (holds 3 irons). Price $16.50, all complete. This contract will be honored in the hands of any person to whom it may be indorsed or disposed of, and the goods will be furnished the same as if the contract is held by the publisher or publishers.) Price §16.50, the same being the regular price. $10 of the price of the said stove is to be remitted by the publisher or holder of this contract to said The Adams & Westlake Manfg. Co., Chicago, when the stove is ordered. The balance is to be in full payment of the advertising done under this contract.
    (Signed) A. ¡N". Kellogg.
    Dated 7 — 14, 1879.
    The evidence tended to show that the plaintiff, after obtaining the execution of said contracts, caused circulars to be sent to the proprietors of said several newspapers, seeking to induce them to avail themselves of the provisions of said contracts, by remitting to the defendants §10 and receiving therefor one of said oil stoves as provided in the contracts, but it appears that said circulars were substantially without result. Evidence was also given tending to show that, during the negotiations which resulted in the contract sued on, the plaintiff told the defendant that, in order to obtain the insertion of said advertisements on the il co-operative side” of said newspapers, he would be obliged to pay to said co-operative publishers, a portion of his commissions. It appears, also, that the entire expense of publishing said advertisements in said co-operative newspapers was paid by the plaintiff himself, in cash, to the several parties executing the contracts.

      The principal controversy in the case arose upon the interpretation to be given to the contract sued on, and the court thereupon, at the instance of the plaintiffs, gave to the jury the following instructions:
    6. “If the jury believe, from the evidence, that at the time the defendant executed the written authority to the plaintiff, which has been offered in evidence, both the plaintiff and defendant intended that such contracts as the plaintiff should make under such authority with the union or co-operative publishers of' newspapers, should, in fact, be made with publishers who should receive payment for the advertising therein specified in money, and not according to the terms of such printed contracts, then the jury is instructed that the making of such contracts upon said forms would be a compliance with his contract by the plaintiff, and would entitle him to be paid at the contract price for each contract so made and delivered to the defendant.
    7. “ In determining whether the plaintiff and defendant intended, at the time the defendant executed the written authority to plaintiff which has been offered in evidence, that the plaintiff should, in making the contract therein contemplated with the union or co-operative publishers of newspapers, in fact, (pay) such publishers for doing the publishing, in money, and that such was the intention of both parties at the time, it is proper for the jury to consider all that occurred between the plaintiff and defendant after such contracts were made, and at and after the time the plaintiff* had claimed compensation from defendant therefor.”
    The jury found for the plaintiff* and assessed his damages at $3,594.36, and the court, after denying the defendant’s motion for a new trial, rendered judgment upon the verdict.
    Messrs. Flower, Remy & Gregory, for appellant;
    as to evidence of previous conversations being inadmissible to explain written contract, cited Mercantile Ins. Co. v. Jaynes, 87 Ill. 199; Ludeke v. Sutherland, 87 Ill. 481; Weaver v. Fries, 85 Ill. 356; Andrews v. Mann, 92 Ill. 40.
    It is the duty of the court to construe a written contract: Kamphouse v. Gaffner, 73 Ill. 453; Belden v. Woodmansee, 81 Ill. 25; Wilcox v. Dodge, 12 Bradwell, 517.
    Mr. Frederick Ullmann, for appellee;
    as to the admission of parol evidence, cited Powell v. Biddle, 2 Dallas, 70; Scanlan v. Wright, 13 Pick. 523; Brewster v. McCall, 15 Conn. 274; Hadden v. Shoutz, 15 Ill. 581; C. & Gt. E. R. R. Co. v. Vosburgh, 45 Ill. 312; Leavers v. Cleary, 75 Ill. 349; Turpin, v. B. & O. R. R. Co., 105 Ill. 11; Batavia Mfg. Co. v. Newton Wagon Co., 91 Ill. 239; L. & N. R. R. Co. v. Koelle 104 Ill. 460; Piper v. Connelly, 108 Ill. 512.

       The matter within brackets was on the margin of the contract. — Rep.

   Bailey, J.

It is a very familiar principle that where the parties to a contract reduce the same to writing, the law presumes that all the terms and conditions of the agreement are fully incorporated into and become a part of the written contract, so that the writing becomes the only evidence of the terms of the agreement. It follows that the intention of the parties is to be ascertained solely from a proper construction or interpretation of the language employed by the parties in the instrument itself. Where that language is plain and unambiguous, it must be enforced according to its obvious meaning, but where it is equivocal or doubtful, it is proper to look to extrinsic circumstances, particularly those surrounding the execution of the instrument, to ascertain the meaning the parties intended to convey by the language employed to express their agreement. But the intention which the courts will enforce must, after all, be that which is expressed in the writing. An intention of either or both the parties different from the one so expressed can not be regarded.

It is also a well settled rule of law, that the interpretation or construction of written contracts is a question of law for the court and not one of fact for the jury. Hor is the rule different where resort is had to extrinsic evidence for light as to the proper construction of the writing. There, while the court may require the jury to find the facts established by such evidence, it should itself determine the proper construction to be given to the instrument in the light of the facts so submitted to the jury.

By the sixth and seventh instructions, the jury were required to find from the evidence, whether the parties, at the time of making the contract sued on, intended that the plaintiff should make advertising contracts with union or co-operative publishers of newspapers, not in accordance with the terms of the printed forms of agreement, but that he should, in fact, undertake to pay such publishers in money for publishing the advertisement; and the jury were further instructed that, if such was their intention, then contracts made by the plaintiff with such parties for advertising, to be paid for in money, were in compliance with the terms of the contract sued on.

These instructions not only authorized the jury to find an intention not expressed in the writing, but also to find one, as it seems to us, directly contradictory to the one expressed. While the terms of the contract are somewhat obscure, yet enough appears, we think, to exclude an intention to authorize the plaintiff to contract for advertising to be paid for in cash. By the express terms of the instrument, all advertising contracts were to be made in accordance with the agreement or form for that purpose.” A printed blank form of advertising contract was at the same time furnished to the plaintiff by the defendant, and it is clearly shown by the evidence and is not disputed, that said form is the one referred to in said instrument. This blank constituted a form of a contract not only for advertising, but for advertising to be paid for in a particular way, viz., by applying it in part payment for the defendant’s oil stoves. The blank was manifestly framed in pursuance of a scheme on the part of the defendant to advertise and make sale of its oil stoves at the sane time, and it is clear that procuring advertising to be paid for in cash, was directly subversive of one part of this scheme.

By the written agreement, then, the plaintiff was limited to obtaining contracts for advertising, to be paid for only by giving credit upon the purchase price of oil stoves. It was not enough that the printed blanks were used in drawing up and executing the contracts.

The provision was, that the contracts should be in accordance with the blank form of agreement, that is, that such should he their actual character. Now it is too plain for argument that the intention submitted to the jury by the instruction, if proved, was totally at variance with the intention of the parties thus expressed in their written agreement.

The instructions were erroneous in directing the jury to find the intention of the parties from the evidence, when such intention was a question of law to he determined by the court upon a proper construction of the written instrument. The sixth instruction was also erroneous in holding that acts done in pursuance of the intention submitted by the hypothesis contained in that instruction, would be a compliance with the agreement sued on, thus permitting the very terms of the writing to be altered and contradicted by parol evidence.

For the error in giving said instructions, the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Frank F. Cole et al. v. John C. Cosgrove.
    Fraudulent sale — Instruction—In order to impeach a sale of goods on the ground of fraud, both parties must participate in the fraud. As the instruction in this case does not embrace as a part of its hypothesis that the purchaser was a participator in the fraudulent purpose of appellant, it is erroneous.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed March 3, 1885.
    Mr. Robert Hervey, for appellant;
    cited Cole v. Dalziel, 13 Bradwell, 23.
    Mr. L. M. Shreve, for appellee.
   Wilson, P. J.

This case was before ns at the March term, 1884, when the judgment of the court below was affirmed. Subsequently, a petition for a rehearing was filed, which was allowed, further arguments heard, and the case is now before us for determination.

The action was replevin, for a quantity of boots and shoes, brought by appellee against Cole and King, and also against Gore & Co., as to whom it was subsequently dismissed. The greater portion of the goods not having been found on the replevin writ, a count in trover was added to the declaration as to the goods not found. There was a plea of not guilty to the count in trover, also pleas of non cepit, non detinet, and property in King and Gore, to the counts in replevin by all the defendants named in the' writ, upon which issues were joined.

There was a jury trial resulting in a verdict for the plaintiff against Cole and King, for $3,380, for which sum and costs the plaintiff had judgment. Cole and King appealed to this court.

It appears from the record that King was named as a party defendant in the praecipe and writ, but notin the declaration, nor was he served with process. He, however, appeared to the action, and joined with the other defendants in pleading to the merits and also in the trial of the case, without objection. As the case is to be reversed on other grounds and remanded for a new trial where the plaintiff may apply for leave to amend his declaration if he shall see fit, we express no opinion as to the effect of the omission of King’s name in the declaration.

It appears that Cosgrove and one Dillon, borrowed from Cole, $1,000, for which they gave their note, and deposited with him as collateral security therefor, the goods in question, indorsing and delivering to him the warehouse receipt which they held for the goods. The note contained a stipulation authorizing Cole to sell the property, with or without notice, in case of default in the payment of the note or interest according to its terms. Default having been made, Cole gave notice of the sale by posting printed notices in various places and sending like notices around amongst boot and shoe dealers, that the property would be sold at public auction at 10 a. m., October 20, 1881, at the court house door, in Chicago, and the goods were sold at the time and place designated in the notices.

The goods were not present at the sale, but a list was exhibited, and after bids had been received by the auctioneer, oinmencing with §700 and ending at §1,100, the goods and warehouse receipt were struck off in bulk to King, at the latter sum, that being the highest bid made. The goods were paid for by King at the time of the sale, with his check on one of the banks on which Cole drew the money.

It does not appear that subsequently to the sale Cole had any ostensible control over the goods, but it was claimed on the trial in the court below that the sale was fictitious and was collusively made to cheat and defraud Cosgrove; that the property was many times greater in value than the amount of the note; that although professedly fair and public, the sale was so contrived and managed as to avoid publicity and prevent bidding; that King was acting wholly in the interest of Cole and as his instrument, using his money to make the pretended purchase, and that no title to the goods passed to King by the sale. And this appears to have been the principal subject of controversy on the trial below, and to which the evidence was largely directed.

The court, at the request of the plaintiff, instructed the jury in substance, that if they believed from the evidence that Cole caused sale to be made of the warehouse receipt to King for the purpose and with the intent to defraud Cosgrove, and to fraudulently deprive him of the goods in question, and that by reason of fraudulent acts and practices on the part of Cole the warehouse receipt was sold to King for a grossly inadequate price as compared with the value of the goods, and that Cosgrove has sustained a pecuniary loss thereby, such fraud and fraudulent practices on the part of Cole render the sale void and of no effect, and no title either to the warehouse receipt or the goods passed to King as against Cosgrove.

The error in this instruction is manifest, and need only be suggested. It is a familiar principle, that in order to impeach a sale of goods on the ground of fraud, both parties must participate in the fraud. Benjamin on Sales, p.--. It is not enough to avoid the sale to show that Cole acted fraudulently or with a fraudulent purpose. Asale of the goods was in fact made, and King was the purchaser. The fact that Cole may have acted fraudulently could not affect King’s rights as purchaser, unless he was a participator in or had notice of the fraud; and whether he had or not was a question of fact which lie was entitled to have the jury pass upon. We can not assume, nor could the court below properly assume that King was guilty of a fraud. To do so would be a clear invasion of the province of the jury, whether we regard the evidence tending to prove the fraud as slight or strong. The instruction should have embraced as a part of its hypothesis that King was a participator in the fraudulent purpose of Cole, or acting in collusion with him in making a fraudulent sale.

For the error of the court in giving said instruction, the judgment is reversed and the cause remanded for a new trial.

"Reversed and remanded.


text:
    Asa H. Simpson et al. v. Charles S. Simpson et al.
    I. Release by expectant heiu. — A son, in 1855, in consideration of a conveyance to him from his father of certain lands, executed to the latter an instrument under seal releasing in favor of his expectant co-heirs, all claim or right which he then had or might thereafter acquire in his father’s estate, and acknowledging that said conveyance was intended by his father and accepted by him in full satisfaction of all his interest in said estate. The son died before the father, leaving three children surviving him. The father subsequently died intestate. Held, that the release is not within the statute in relation to advancements; that the son having died before his father, never acquired by descent or inheritance any interest in the estate, and the mere naked possibility, which was the subject of the contract, became extinguished; that tlie three children, on the death of their grandfather, are entitled by descent to the share in their grandfather’s estate which their father might have inherited if he had been living, and had not executed the release in question.

      2. PitnuTY. — As the son never had any interest in his father’s estate, but only a mere possibility of inheriting' a portion of it, he never sustained to it any such relation as would bring him into privity with his children.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed March 3, 1885.
    The record in this case contains a stipulation embodying all the facts appearing in evidence at the hearing below, so far as they have any bearing upon the rights of the parties to this appeal. Those facts as set forth in the stipulation, are as follows:
    On the 3d day of December, 1880, John Simpson, Sr., departed this life intestate, leaving him surviving his widow, and John Simpson, Jr., Andrew Simpson, George Simpson and Charles Simpson, his sons, and Rlmda Cox and Margaret Hammond, his daughters. Amos P. Simpson, another son, died September 24,1880, leaving him surviving Asa II. Simpson, Ida M. Simpson and Burnell Simpson, his children and only heirs at law; also Mary Pratt, another daughter of John Simpson, Sr., died during the lifetime of her father, leaving her surviving two daughters, Elizabeth Pratt and Prances Pratt, her only heirs at law. John Simpson, Sr., at the time of his death, owned and possessed real estate and personal property, and an administration upon his estate was had in the Probate Court of Cook county, Illinois. In his lifetime he conveyed to John Simpson, Jr., certain real estate, and received back from him a release substantially like the one hereinafter set forth. He also conveyed to his sons, Andrew Simpson and George Simpson, certain real estate, with an express agreement between himself and them, that the same was to be received by them in full of their respective shares in his estate. lie also conveyed to Amos P. Simpson the land described in the following release, and the latter thereupon executed and delivered to Ms father said release, in the words and figures fallowing:
    " In consideration of the conveyance to me this day of the W. £ E. \ of the northeast and 60 rods in width taken from the east side of the W.1/2 of the N. E. J- of section 1/4number nine, township 37, N., of R. 13, E. of the third principal meridian, in Cook Co., Ill., by John Simpson, my father, and Elsie Simpson, his wife, I do hereby release all claim and right which I have or may hereafter have or acquire as heir of said John Simpson, in all his estate, real or personal, in favor of the other heirs of said estate, except John Simpson, Jr., who has received his portion of said estate by the conveyance of land in the same manner as I have. The conveyance to me of said premises as aforesaid, being intended by my father and accepted by me in full satisfaction of all my interest in his estate.

      “ Witness my hand and seal, this 29th day of January, A. D. 1855.

      “ Amos P. Simpson, [seal.] ”
    It is further stipulated that the only question presented by this appeal is, whether the release above set forth is legally sufficient to bar said Asa JEL Simpson, Ida M. Simpson and Burnell Simpson from having any share or interest in the estate of their grandfather, John Simpson, Sr. The court below decided that question in the affirmative, and rendered a decree accordingly, and that decision is now assigned for error.
    Messrs. Van Arman & Vallette, for appellants;
    cited 2 Story’s Eq. Jur., §1040 c.; 1 Story’s Eq. Jur., §729, note 6; Jenkins v. Stetson, 9 Allen, 128; Powers’ Appeal, 63 Penn. St. 443; Galbraith v. McLain, 84 Ill. 382.
    As to privity: 2 Smith’s Leading Cases, 626; 3 Washburn on Real Property, 69.
    As to advancement: Bishop v. Davenport, 58 Ill. 105; Galbraith v. McLain, 84 Ill. 379; Kershaw v. Kershaw, 102 Ill. 307.
    Mr. E. F. Runyan, for appellees;
    cited Fitch v. Fitch, 8 Pick. 479; Quarles v. Quarles, 4 Mass. 681; Kershaw v. Kershaw, 102 Ill. 312; Parsons v. Ely, 45 Ill. 232; Bishop v. Davenport, 58 Ill. 105; Kenney v. Tucker, 8 Mass. 143; Purples’ Statutes, 1856, § 51, p. 1201; Galbraith v. McLain, 84 Ill. 381.
   Bailey, J.

John Simpson, Sr., conveyed certain lands to Amos P. Simpson, one of his sons, and in consideration of such conveyance, Amos P. Simpson executed to his father an instrument under seal, releasing, in favor of the other heirs of his father’s estate, all claim or right which he then had or might thereafter acquire in said estate, and acknowledging that said conveyance was intended by his father and accepted by him in full satisfaction of all his interest in said estate. Amos P. Simpson died during his father’s lifetime, leaving him surviving three children, the appellants in this case. Subsequently his father, John Simpson, Sr., died intestate, and the question is, whether the appellants’ right to inherit such portion of their grandfather’s estate as would have descended to their father if he had been living, was cut off by said release.

The question arises, whether the conveyance of said lands to Amos P. Simpson, from his father, was an advancement, within the meaning of our statutes, and, if so, how far his children should be held to have been affected thereby. It will readily be observed that the eighth section of our present statute in relation to the descent of property can have no application, as that statute went into force July 1, 1872, while the release in question was executed January 29, 1855. The legal effect to be given to the release must, of course, be determined in accordance with the statute in force at the date of its execution, and the statute then in force seems to have contained no provision determining or affecting the rights of the children of a person who, after having received an advancement, dies before the death of his father, from whom he received it.

But the decisions of the Supreme Court seem to have placed it beyond question that, whatever force is to be given to the release, it is not within the statute in relation to advancements. Thus in Bishop v. Davenport, 58 Ill. 105, certain children who had each received from their father certain portions of his property, executed receipts and releases in various forms, acknowledging the receipt by them of their respective shares in his estate in full, and forever releasing all claims thereto. Their father having died intestate, it was held that, while the releases were to be enforced as express agreements, they did not come within the provisions of the statute in relation to advancements. So in Kershaw v. Kershaw, 102 Ill. 307, a son having received from his father a conveyance of land, executed to him an instrument, by which he acknowledged that said land was deeded as an advancement to him out of his father’s estate, and was accepted by him as his full and entire share of said estate. It was held that, while the instrument would be enforced as an executed contract, there was no advancement.

Whether the mere naked possibility’- or expectancy of an heir, apparent or presumptive, can be made the subject of an assignment or release, has been the subject of very grave controversy; but the law seems to be now well settled that such assignment or release, if made bona fide and for an adequate consideration, will be enforced in equity, after the death of the ancestor, not indeed as a trust attaching to the estate, but as a right of contract. 2 Story’s Ep Juris., § 1040 c. In Mitchell v. Winslow, 2 Story, 630, Story, J., discussing this question, says: Courts of equity do not, like courts of law, confine themselves to giving effect to assignments of rights and interests which are absolutely fixed and in esse. , On the contrary, they support assignments, not only ofchoses in action, but of contingent interests and expectancies, and also of things which have no present, actual or potential existence, but rest in mere possibility only. In respect to the latter, it is true that the assignment can have no positive operation to transfer, in prcesenúi, property in things not in esse/ but it operates by way of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse; and it may be enforced as such a contract in rem in equity.” To the same effect, see Woodworth v. Shorman, 3 Story, 171.

In Wright v. Wright, 1 Vesey, Sr., 409, Lord Hardiwicke, discussing the grounds upon which an assignment, by an heir, of his expectancy, may be sustained in equity, says: “ An assignment always operates by way of agreement or contract, amounting, in consideration of this court, to this, that one agrees with another to transfer and make good that right or interest, which is 'made good by wav of agreement.”

Mr. Spence, in his treatise on Equity Jurisprudence, says: ' A naked possibility or expectancy of an heir to his ancestor’s estate, or even of the anticipated right of a person or next of kin, may be subject of a contract in equity, which will be equivalent to an assignment of the property, if, and when, it shall fall into possession.” 2 Spence’s Eq. Juris., 865.

See also, Varick v. Edwards, 1 Hoff. Ch. 382; Mansell v. Lewis, 4 Hill, 635; Jackson v. Waldron, 13 Wend. 178; Hobson v. Trevor, 2 Peere Wins. 191; Bishop v. Davenport, supra, and cases cited.

It is clear, then, that the release executed by Amos P. Simpson did not operate as an assignment of any present interest in his father’s estate, but had force and vitality as a present agreement on his part, that such interest in said estate as might at any time in the future come to him by descent, should go to and be enjoyed by his co-heirs. Had he survived his father, so as to have inherited any portion of his estate, the agreement would doubtless have attached to such interest, and equity would have compelled its proper performance. But having died before his father, he never acquired, by descent or inheritance, any interest in the estate. The mere naked possibility which was the subject of the contract became extinguished. It never xvas in esse, and the circumstances, therefore, under which alone the contract could become operatixre and enforceable, never transpired.

He being dead, his children .inherited their grandfather’s estate, not through him, but directly from their grandfather.

Hot only then was said contract, from the very nature of the case, incapable of enforcement, but xve know of no principle upon which it could, in any event, be binding upon his children. So far as their interest in their grandfather’s estate xvas concerned, they did not sustain to their father the relation of -privity. As defined by Mr. Greenleaf, “privity denotes mutual or successive relationship to the same rights of property.” 1 Greenl. on Ev., § 189. As Amos P. Simpson never had any interest in his father’s estate, but only a mere possibility of inheriting a portion of it, he never sustained to it any such relation as would bring him into privity with his children. He was not the channel through which they derived their interest. The legal relation of heir and ancestor, which would have constituted them privies in blood, did not exist between them.

Mr. Washburn, in his treatise on the Law of Eeal Property, in discussing the validity and effect of releases by heirs apparent, of their right to the succession, says: Equity holds a contract of an expectant heir who becomes heir de faoto, binding on him, though equity does not extend this to his heir.” 3 Washb. on Real Prop. (mar.) 465.

We are referred to the eases of Quarles v. Quarles, 4 Mass. 680, and Kenney v. Tucker, 8 Id. 143, as holding a different doctrine. In those cases it seems to have been held, .that where a father conveyed to his son certain lands, and received back from him a deed in which the son acknowledged himself satisfied as to his share of his father’s estate, and acquitted and discharged the estate from any demand thereon as heir, the children of the son were barred from any interest in their grandfather’s estate. These decisions, however, rested solely upon the principle that the conveyance to the son was an advancement to him in full. But as we have seen, the contrary rule prevails in this State, it being held that such release is not in the nature of an advancement, but is to be upheld as an express contract.

We are of the opinion, then, that the appellants, on the death of their grandfather, became entitled by descent, to the share in their grandfather’s estate .which their father might have inherited if he had been living, and had not executed the release in question.

The decree will therefore be reversed and the cause remanded, with instructions to the court below to enter a decree in favor of the appellants, in accordance with the foregoing opinion.

Decree reversed.