text:
    Mary J. Spreen, Appellee, v. John A. Beck, Appellant.
    1. Appeals and errors—what errors not considered. Errors assigned but not argued are deemed waived.
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    Action in case. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Bracken & Young, for appellant.
    J. J. Morrisey, W. B. Oarlock and Jacob P. Bindley, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case, for the recovery of darm ages alleged to have resulted to the plaintiff through the negligent operation by the defendant of an automobile. Judgment was rendered on the verdict of the jury against the defendant for $1,000. The jury found specially that the plaintiff could not have avoided injury to herself by the exercise of due care on her part, and that at and immediately before the collision she exercised due care and caution for her own safety.

The declaration alleges, and the evidence discloses, that on April 10, 1909, while the plaintiff was walking along and across Washington street in the city of Bloomington, where the same is crossed by Main street, she was injured by being struck by an automobile propelled by gasoline motive power along Washington street, which automobile was then being operated and controlled by the defendant.

The grounds assigned for reversal are, that the general and special verdicts are against the weight of the evidence; that the motion by defendant to direct a verdict in his favor should have been sustained, and, further, that the judgment is excessive.

The evidence shows that the plaintiff, who was about 68 years of age, on the morning of April 10, 1909, was attempting to cross Washington street, a street running east and west in the city of Bloomington, at its intersection with Main street, which runs north and south; that she proceeded south on the crossing on the east side of Main street, about two-thirds of the distance to the south sidewalk on Washington street, and then left the crossing and was walking in a sputheasterly direction transversely toward such sidewalk, when she was struck by the automobile of the defendant, which was going eastward on Washington street, and thrown to the pavement. By reason of the accident her knee-cap was fractured, her ankle dislocated, and she was otherwise severely injured. The evidence further shows that at the west side of the intersection of Main and Washington streets, was the terminus of a street car line, and that at the time of the accident the west side of the street was crowded with people who had just alighted from street cars. The testimony introduced by the plaintiff tends to show that no warning of the approach of the automobile was given, either by sounding a horn or ringing a gong, or otherwise. She testified that before leaving the crossing and starting for the sidewalk, she looked both east and west on Washington street and saw no vehicle of any kind, or any obstruction to prevent her crossing over, and heard no whistle or gong sounded.

The defendant testified that he was proceeding east on Washington street, and that when he reached the southwest corner of the intersection of said street with Main street, he stopped his machine, and before starting sounded the horn several times, and slowly crossed Main street, .and while so doing he again sounded his horn; that before crossing Main street he looked north and south, and that after he had done so, he turned south toward the sidewalk for the purpose of stopping, looking straight ahead at the time; that the machine was barely moving, when the plaintiff stepped suddenly and unexpectedly in front of and was struck by the same, and that the machine stopped within two feet after striking her. The evidence introduced by the defendant further tends to show, that at the time the plaintiff started from the crossing to the sidewalk, in a transverse direction, the defendant and his machine were clearly within her view; that there were no street cars or other vehicles on Main street to obstruct such view, and nothing to prevent her from seeing him approach. The testimony of each of the parties is corroborated to some extent by the witnesses called by them respectively. In this state of the proof, the questions of fact involved were peculiarly within the province of the jury, and were properly submitted to it for determination. The jury has found both by the general and special verdicts, in favor of the plaintiff, upon these controverted issues. We are unable to say, after a careful review of the whole evidence, that such findings were clearly and manifestly unwarranted by the evidence, and are therefore not at liberty to disturb the verdict.

It is conceded that the court correctly advised the jury as to the law applicable to the facts in issue. We find no prejudicial error in the rulings of the court upon the admissibility of evidence. It is assigned as error that the verdict is excessive, but the question is not argued and the contention is therefore waived. It does not appear, however, from the evidence, that the damages are clearly excessive.

The judgment of the circuit court is affirmed.,

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    William T. Baker, Appellee, v. Taylorville Railway, Light, Heat & Power Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    2. Appeals and errors—what cures erroneous admission of evidence. Held, that the error committed by the court in admitting evidence was fully cured by a subsequent instruction to disregard the same.
    3. Appeals and errors—when erroneous evidence will not reverse. The admission of erroneous evidence upon the question of damages will. not reverse if the verdict rendered under the evidence was not excessive.
    4. Damages—what evidence incompetent upon. Evidence as to money expended on behalf of the plaintiff is not competent to enhance the amount of the damages unless it is shown that the plaintiff was liable for such expenditures.
    5. Instructions—must not ignore theory of recovery. An instruction which directs a verdict for the. defendant if certain facts are found must not ignore any theory of recovery justified by the pleadings and proof.
    Action in case for personal injuries. Appeal-from the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Taylor & Taylor, W. B. McBride and J. A. Merry, for appellant.
    Hogan & Wallace and Provine & Provine, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages alleged to have been sustained by the plaintiff, by reason of alleged negligence of the defendant in failing to use resonable care to maintain its railway in the public highway in safe condition. A trial resulted in a verdict in favor of the plaintiff for $2,000, upon which judgment was rendered. The specific negligence charged is that where its track crosses a public highway at a certain point, the defendant negligently suffered the rails of such track to be exposed and elevated above the surface of the traveled portion of such highway, and permitted the surface between said rails to become and remain depressed, uneven and irregular, thus causing a dangerous obstruction and an impediment and menace to travel in and along such highway.

The evidence shows that the defendant maintained its railway in the public highway a short distance from the corporate limits of Taylorville, extending in a westerly direction to a point where it turned south in said public highway; that during the evening of October 2, 1909, plaintiff, accompanied by one Eeed, was traveling in a buggy toward the city of Taylorville, the horse being driven by the former. The evidence introduced by the plaintiff tends to show that it was necessary for them to cross the track of the defendant at or near the turning point in question; that while they were endeavoring to do so, by reason of the undue elevation and exposure of the rails, the wheels of the buggy were prevented from passing entirely over said rails, and became confined between the same, and that in an attempt to extricate the vehicle it tilted to one side, threw the plaintiff out of the buggy to the ground, whereby he was severely injured; and, further, that at the place in question, the highway on the north side of the track was rough and uneven; that the usual traveled way was on the south side thereof, and that it was essential that they should cross at the point where they attempted to do so; that for some distance east from the point where the rail or track turned south, the ties between the rails were bare of dirt, and the rails extended their full height above the natural surface of the ground; that the plaintiff was an experienced horseman and that the horse which he was driving was not frightened and after the accident returned to the city at its usual gait.

The testimony of the witnesses for the defendant tended to show that at the crossing in question, the dirt was as high as the rails; that the crossing was in a safe condition, and that the cause of the accident was the careless driving of the plaintiff in getting the wheels inside and attempting to get them outside of the rail, at a time when the horse was frightened, and the further fact that both of them undertook to drive at the same time, and thus frightened and confused the horse. There was also evidence showing that the plaintiff and his companion had, during the afternoon, prior to the accident, indulged to some extent in the use of intoxicating liquors.

The alleged errors argued are that the verdict is contrary to the evidence, and that the court erred in its rulings upon the evidence and instructions to the jury. We have read and considered all the evidence in the record, and are of opinion that the findings of the jury upon the issues as to the alleged negligence of the defendant, and the exercise of due care on the part of the plaintiff, cannot be said to be clearly and manifestly against the weight of the evidence. If the jury credited the testimony of the plaintiff’s witnesses, such conclusions were fully warranted.

The court sustained a demurrer to the second count of the declaration, which charged that the defendant had located its track on the highway in question without authority from the highway commissioners of the town of Taylorville, and that by reason thereof said track was an obstruction in said highway and an impediment to travel. The plaintiff was, however, over the objection of the defendant, permitted to introduce evidence upon the question as to whether the county board had given the defendant authority to lay the tracks of said railroad in said highway. It is contended that although the court afterward excluded said evidence from the consideration of the jury, the defendant was seriously prejudiced thereby. We are satisfied that the error, if any, was fully cured by the subsequent instruction to disregard the evidence, and that the jury were not misled or prejudiced thereby.

It is further urged that the court erred in permitting the plaintiff’s son, John Baker, to testify that he had paid to one Kelly the sum of $110 for board of himself and sister while caring for his father, and that he had spent on an average twenty-five dollars per week in caring for his father. In the absence of proof that the plaintiff had paid or was liable to pay snch expenses, the evidence was incompetent. We do not think, however, that the admission of the same served to enhance the amount of the verdict, which cannot be said to be excessive, under the evidence. The plaintiff’s third instruction, in reference to the amount of damages, of which complaint is made, need not be considered, for 'the same reason.

It is insisted that the plaintiff’s fourth instruction is not based upon the evidence or the pleadings in the case. We think there was evidence to warrant the hypothesis contained in the same, and that the averments of the declaration were sufficiently broad to render such evidence admissible. Defendant’s second refused instruction was practically covered by the fifth given. Defendant’s fifth refused instruction tells the jury that if the track where the accident happened was built and maintained in a proper and workmanlike manner, for the purpose for which it was built, and no negligence was shown upon the part of the defendant, then the plaintiff could not recover. The instruction was properly refused, for the reason that it ig.nored the duty of the defendant so to construct and maintain its track as not to interfere with free travel over the street by any one having occasion to use the same. We have considered the objections to other instructions, and find no prejudicial error in the rulings of the court thereupon.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    A. J. Miller, Appellee, v. Assureds’ National Mutual Fire Insurance Company, Appellant.
    1. Insurance—when acceptance established. Held, under the evidence, that acceptance by the insured of the policy in suit was established.
    2. Evidence—when declarations of agent incompetent. Declarations by an agent after his authority as such has ceased are incompetent as against his principal.
    Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    A. M. Fitzgerald, for appellant; Whitley & Fitzgerld, MoGthley & Wiley and Gillespie & Fitzgerald, of counsel.
    LeForgee, Vail & Miller, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In an action in assumpsit upon an insurance policy, purporting to cover property owned by the plaintiff, judgment was rendered against the defendant for $2033.17. The case was tried by the court without a jury.

Prior to and during November, 1909, the plaintiff, who resided at Frankfort, Indiana, was the owner of a brick building located in Varna, Illinois. Prior to that time the property had been insured in the Illinois National Fire Insurance Company, and was at the time in the hands of a receiver. The policy in suit, by its terms, insures the property therein described against all direct loss or damage by fire, from the twenty-ninth day of November, 1909, to the sixteenth day of July, 1912. It contains the following provision :

“This policy is sent subject to the approval of the assured and will not be in effect until after the assured has notified the company at its office in Decatur, Illinois, of his acceptance of the policy, and received the company’s acknowledgment of the same.”

It is not denied that the policy was issued and sent to the plaintiff’s agent. The principal question presented by this appeal, is as to whether the policy in suit became a binding contract between the parties. The evidence bearing upon such issue consists entirely of letters exchanged between the defendant company and the plaintiff’s son and agent, L. A. Miller. A number of the letters in question refer in part to other insurance carried by the plaintiff in the defendant company, and we shall only quote such portions thereof as we regard material to the present controversy.

On November 19, 1909, the defendant, in a letter to L. A. Miller, states, among other things, that it was taking over the business of the Illinois National Company. On November twenty-first, Miller replied that he noted that the defendant had taken over the business of the Illinois National Company; that he had a $2,000 policy covering the Varna property, which it seemed the defendant had not taken over, inasmuch as the receiver for the Illinois Company had asked him to file a claim for the amount of the premium paid, and that he took it for granted that the policy was worthless. On November twenty-seventh, the defendant replied, stating that it had instructed the policy clerk to forward to L. A. Miller a policy for $2,000 to cover the Illinois National Policy on the property in question that had not been sent him; and further, that when Miller forwarded to it the latter policy, it would collect the return premium from the Illinois National and apply the samé when collected, upon the policy in suit, and further, that it was taking over the business of the Illinois National as fast as it conld.

On November thirtieth, Miller replied to the effect that he was in receipt of the last letter and of the policy “which you propose to issue in place of policy number 37909, formerly issued by the Illinois National, on property in Varna, Illinois, in the name of A. J. Miller. This policy you have sent is satisfactory and I will accept same providing I can have credit for the value of the old policy at once and pay the difference, but would want this new policy to be in force from the date on same,” and stating further, that the old policy on the Varna property had been forwarded to the Receiver of the Illinois National, but that he supposed it could be recalled. On December sixth, the defendant wrote Miller stating, among other things, that it enclosed to him an assignment blank for the Illinois National return premium; that it could take this and recall the order that he had sent to the receiver. On December tenth, Miller claims to have written a letter to the defendant, which the defendant denies ever having received, in which he acknowledged receipt of the letter of December sixth, stating that he was enclosing the assignment of the old policy signed, “with the understanding that the return premium is to be credited on the new policy that you issued on the Varna property, and that I am to pay the difference ip amounts and that the policy is now in effect. Will send you the difference as soon as you send me a statement of the amount. ’ ’

Whether such letter was written and mailed to the defendant as claimed, was a question of fact. The finding of the trial judge in the affirmative was not clearly against the weight of the evidence and is therefore conclusive. On December twenty-third, L. A. Miller, by letter, advised the defendant that he had learned that the property covered by the policy in suit had been entirely destroyed by fire on December 20, 1909, and requested the defendant to send to the plaintiff a blank form of loss. The defendant at once disclaimed any liability under the policy, claiming, as it still does, that its action in sending the policy to the agent of the plaintiff did not amount to a delivery thereof so as to constitute a completed contract between the parties; that it was tendered to the plaintiff for examination merely, to be accepted by him if satisfactory.

We think that the sending of the blank assignment to Miller, upon receipt of his letter of November thirtieth, can fairly and properly be considered as an acceptance of his proposition to accept the policy in suit upon condition that the return premium to be collected from the receiver of the Illinois National be credited upon the premium due upon the policy in controversy. Had the defendant been unwilling to assent thereto it undoubtedly would have so expressed itself, and not forwarded the assignment blank without comment. The letter of Miller dated December tenth, was but a re-statement by him of his understanding of the arrangement as to the manner of paying the premium and not a counter-proposition.

The present judgment must, however, be reversed, because of the absence of any competent proof in the record of any damage or loss to the property. L. A. Miller testified that the building was worth $5,000 before the fire, and that it was a total loss; he admitted, however, that he had not seen the property since the fire. No other evidence was produced on this point. The testimony of Miller was purely hearsay in its nature, and should not have been considered by the court in determining the issues.

The defendant offered to prove upon the trial, that L. A. Miller, after the alleged fire had occurred, made statements in writing to a commercial agency, to the effect that there was no insurance upon the property at the time of such fire. Such evidence was incompetent, for the reason that at the time the statements were alleged to have been made, L. A. Miller was no longer the agent of plaintiff in the matter, and his admissions could not be binding against him. Neither was it competent for the purpose of impeachment, inasmuch as no foundation appears to have been laid.

For the reasons indicated, the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.


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    McClain Bercaw, Appellee, v. Bruce Sims, Appellant.
    1. Practice—when propositions of law required. Section 42 of the Practice Act providing for the submission of written propositions of law is applicable as well where the facts are agreed upon as where they are presented by testimony.
    2. Appeals and' errors—when question of law not preserved. Where in the trial court any question is raised in regard to the admission or exclusion of evidence and no propositions are submitted to the court to be held as law, no question of law is- presented on appeal for decision.
    Appeal from the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied November 11, 1911.
    F. W. Dundas, for appellant.
    F. C. Van Sellar, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon a trial of this cause without a jury; judgment was rendered in favor of the plaintiff for the sum of $120. The defendant appeals. The material facts involved were stipulated by counsel upon the trial, and show that Sims, the defendant, was the promoter, and one Merkle, the treasurer, of the Hunter Mining Company; that Sims represented to the stockholders of this company that he held an option to purchase a, certain mining’ lease for $18,000, and that he would sell such lease to the company for the same price. As a matter of fact, Sims held an option to purchase the lease for $10,000, which fact was known to Merkle, but not to the other stockholders. Merkle, as treasurer of the mining company, was thereupon authorized by and on behalf of the company, to purchase the lease from Sims for $18,000. He ostensibly did so, but Sims at once paid back to him $4,000, and retained the remaining $4,000. Afterward, the stockholders of the, mining company learned of the foregoing facts, and Merkle, in order to avoid suit, paid back $4,000 to the stockholders of the company, and was released by them from all liability of every kind, growing out of the transaction. Thereafter the plaintiff, Bercaw, and certain other stockholders, brought the present and other suits against Sims and obtained judgments ' against him for their proportionate part of the $4,000, retained by him.

The only error assigned for reversal is that the trial judge erred in finding the issues for the plaintiff, for the reason, as claimed, that Merkle and Sims were joint tort feasors and that the settlement with and release of Merkle was a bar to the bringing of any subsequent suit against Sims. The question thus presented is purely one of law. No written propositions were submitted to the court to be held as law in the decision of the case. Section 42 of the Practice Act providing for the submission of written propositions of law, is applicable as well where the facts are agreed upon, as where they are presented by testimony. Where in the trial conrt no question is raised in regard to the admission or exclusion of0 evidence, and no propositions are submitted to the court to be held as law, it has been frequently held that no question of law is presented on appeal, for decision. Mutual Protective League v. McKee, 223 Ill. 364.

The judgment of the circuit court is accordingly affirmed.

Affirmed.


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    A. F. Swisher et al., Appellees, v. Fidelity & Deposit Company of Maryland, Appellant.
    1. Pleading—when declaration cured by verdict. If a declaration states a good cause of action although defectively, a verdict operates to cure the defective statement.
    2. Appeals and errors—when failure to carry demurrer back cannot be complained of. A defendant who has not tested the declaration by demurrer cannot complain of the court’s refusal to carry the plaintiff’s demurrer to his pleas back to the declaration where the record shows no ruling upon such a motion nor exception thereto.
    3. Suretyship—what conclusive upon sureties. Entries in the principal’s books Of account of moneys in his hands at the date of the bond in suit and his report at the expiration of a previous term of office showing the amount then in his hands, are conclusive upon the surety and the surety is estopped from showing that such entries and report are Untrue.
    4. Suretyship—what conclusive upon sureties. When an officer is re-elected and becomes his own successor, and at the commencement of his second term, reports a certain sum in his hands and gives bond with sureties to account for and pay over the moneys coming to his hands during the term, his sureties, when sued, will be responsible for the sum so reported in his hands, and will not be allowed to show the defalcation, in fact, occurred during the previous term.
    5. Suretyship—what not defense to action upon indemnity bond.
      The failure of a lodge to give information to the surety company of facts of which the surety company was ignorant, does not relieve such surety company from liability if such information was as accessible to it as it was to the lodge.
    6. Suretyship—what not defense to action upon indemnity bond. It is not the duty of a lodge indemnified, or of its officers, to require its treasurer to keep the lodge funds in any particular manner or depository and the fáet that such treasurer failed to keep such funds separate from his own, does not constitute a defense.
    7. Suretyship—what does not discharge surety. A settlement or adjustment of a defalcation provided for by resolution of the lodge indemnified if not carried into effect will not operate to discharge the surety company.
    8. Evidence—when best, required. The records of a lodge are the best evidence of resolutions adopted by such lodge and such evidence is required unless failure to produce it is duly accounted for.
    Action in debt. Appeal from the Circuit Court of Vermilion county; the Hon. W. R. Scholeield, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Swallow & Swallow, for appellant.
    Jones & Bookwalter and A. A. Partlow, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in debt upon a surety bond executed by one Ingram as principal and the defendant corporation as surety to secure the honest and faithful performance by Ingram of his duties as treasurer of Bismark Lodge No. 893 I. O. 0. F., of which lodge the plaintiffs were trustees. Upon a trial in the circuit court, at the conclusion of the evidence, the trial judge directed a verdict in favor of the plaintiffs, for the sum of $2,000 debt and $898.81 damages. To reverse the judgment rendered upon such verdict this appeal is prosecuted by the defendant.

To the declaration a number of special pleas were interposed, the averments of which were, in substance, the following: By the third original, it is alleged that during the term said bond was in force, to wit, from April 1, 1908, to May 1, 1909, Ingram received as treasurer of said lodge, the sum of $858.82, and that as such treasurer he disbursed all of said money so received in payment of orders drawn upon him as such treasurer, by the proper officers of the lodge, and that he had therefore accounted for all moneys received by him as such treasurer during the term such bond was in force; by the fourth original, that Ingram had been treasurer during two prior terms; that prior to March 19, 1908, he had converted to his own use $1091.16; that the lodge represented to the defendant that Ingram had never been in default, which representation said lodge knew to be false; by the fifth original, that Ingram had b',een treasurer for two prior terms; that prior to March 19, 1908, he had converted to his own use $1091.16, of which fact the officers of the lodge had knowledge, and that nevertheless they represented to' the defendant that Ingram had never been in default; by the first additional, that the trustees of said lodge failed to notify the defendant within thirty days after knowledge of the default; by the second additional, that the trustees of said lodge did not notify the defendant of said default within thirty days nor until June 11, 1909, at which time the said Ingram was insolvent; that if said plaintiffs had notified the defendant within said thirty days of said default, as .stipulated in said bond, the defendant could have protected itself against any loss on account of said acts of said Ingram; by the third additional, that prior to the execution of the bond, the defendant sent a statement to said lodge containing the following question: “Is the applicant now or has he ever been short, in arrears or in default in his accounts to this order?” which question was answered in writing “No,” and signed by tbe acting Noble Grand of said lodge, and that said, defendant, relying on said written statement and believing tbe same to be true, was induced to execute-said bond; that prior to said March 19, 1908, said Ingram had converted to his own use the sum of money claimed in the declaration, which fact the plaintiffs, by the exercise of reasonable diligence, should have known; by the fourth and fifth additional, similar allegations to those in the third additional, and by the sixth additional, that prior to the time the plaintiffs notified the defendant of the defalcation of Ingram the said lodge had loaned the said Ingram the sum of money mentioned in the declaration, and in consideration of his resignation as said treasurer, agreed to grant him time within which to reimburse said lodge, and this without notice to the defendant. A demurrer was sustained to the third original plea, and the defendant elected to abide theréby. Demurrers to the remaining pleas were overruled, and issue joined thereon.

The evidence shows that on March 19, 1908, the defendant became security upon Ingram’s bond, as alleged in the declaration: that Ingram had been treasurer of the lodge for several years prior to that time, and had always conducted the affairs of his office satisfactorily, paid all orders drawn on him promptly, and kept his books correctly; that in a written statement furnished by the defendant, containing the questions set out in the third, fourth and fifth additional pleas, the lodge answered in the negative; that upon the expiration of the term for which the bond in suit was given, it was ascertained that Ingram was" ¿"defaulter in the sum of $928.81; that the defendant was given notice as required by the provisions of the bond, and afterward, through its agent, audited the books, which showed such defalcations.

It is first contended that the declaration was insufficient upon which to base a recovery, for the reason that it did not allege compliance with the conditions as to notice prescribed in the bond, and further, that the court erred in admitting evidence tending to show such compliance, in the absence of such averment. In answer to such contention it will suffice to say that the declaration stated a good cause of action, although defectively, and was good after verdict. Its sufficiency was not tested by demurrer, and the defendant cannot now complain that the court refused to carry the demurrer to the pleas hack to the declaration, inasmuch as the record shows no ruling upon the motion, nor an exception thereto. Waschow v. Kelly Coal Co., 245 Pressley v. Kinloch Bloomington Telephone Co.. 516.

The contention that the court erred in sustaining the demurrer to the third original plea and in refusing to permit the defendant to show that Ingram had lost the amount of money for which, he was short, prior to the giving of the bond in suit, and that he had paid out more money during the term of such bond than he had received as such treasurer, as alleged in said plea, is without force. The entries in Ingram’s books of account of the moneys in his hands at the date of the bond, and his report at the expiration of his previous term of office, showing the amount of money then in his hands, were conclusive upon the defendant, and it is estopped from showing that such entries and reports were untrue. Longan v. Taylor, 130 Ill. 412; Morley v. Metamora, 78 Ill. 394; Roper v. Sangamon Lodge, 91 Ill. 518; City v. Gage, 95 Ill. 593-625.

When an officer is re-elected and becomes his own successor, and at the commencement of his second term, reports a certain sum in his hands, and gives bond with sureties to account for and pay over the moneys coming to his hands during the term, his sureties, When sued will be responsible for the sum so reported in his hands, and will not be allowed to show the defalcation, in fact, occurred during the previous term. Roper v. Sangamon Lodge, supra; Cowden v. Trustees, 235 Ill. 604; Town v. Grisko, 240 Ill. 220; Town v. Hall, 240 Ill. 160; Trustees v. Cowden, 240 Ill. 39; Trustees v. Arnold, 58 Ill. App. 103; Ladd v. Trustees, 80 Ill. 233.

There is no evidence to support the first and second' additional pleas, hut on the contrary, the evidence does disclose that sufficient timely notice was, in fact, given to the defendant hy the lodge, as soon as it became fully aware of the defalcations.

The demurrer to the third, fourth and fifth additional pleas should have been sustained. While it is true that had the officers of the lodge falsely and fraudulently represented that Ingram was not in default, when in fact they knew the contrary, the defendant would not have been liable, the lodge was not hound to esercise reasonable care to learn the truth before answering the questions asked. They were bound only to act in good faith and answer truthfully to the best of their knowledge, information and belief. The pleas do not allege fraud or actual knowledge, and the proof offered in support thereof fails to establish the same. The failure of the lodge to give information to the defendant of facts of which the latter was ignorant, when, as in the present case, such information was as accessible to it as to the plaintiffs, is unavailing as a defense. The latter were not bound to act as agent of the former, when it might have, by reasonable diligence, acquired the information necessary to protect itself. Roper v. Sangamon Lodge, 91 Ill. 518.

The rejection of the proof offered hy the defendant tending to show that the accounts of the treasurer had not been audited semi-annually as required hy the constitution of the Order, and that Ingram had failed to keep the lodge funds separate from his individual funds, and had paid orders by checks upon his individual hank account, was not prejudicial error. Such proof, if adduced, would have been insufficient to establish actual knowledge on the part of the plaintiffs that Ingram was a defaulter. It was not the duty of the lodge or its officers to require the treasurer to keep the lodge funds in any particular manner or depository, and the fact that he failed to keep them separate from his own was not a matter which concerned the lodge. The defendant undertook, for a consideration, to guarantee the fidelity and honesty of Ingram, and that he would produce the funds in his hands when called upon to do so, and the lodge had the right to rely upon such guaranty. If the manner and place of keeping the funds rendered the risk more hazardous, the defendant, not the plaintiffs, should have taken action to correct or change the practice.

In support of the sixth additional plea, the defendant offered to prove, by the oral evidence of members of the lodge, “that on March 25, 1909, at a regular session of the lodge, Ingram offered to resign in consideration of the lodge loaning him the sum of money involved in this suit and giving him an extension of time within which to pay the same, which resignation was accepted and the lodge by a two-thirds vote passed a resolution loaning him this money and extending the time of payment, without notice to appellant. ’ ’ The defendant offered also the record of a meeting of the lodge “held on the 25th of March, 1909, at Bismark, Illinois, showing motion by Brother I. E. Starr, that we loan Mr. Ira Ingram $900 at six per cent, to be secured by trust deed to Danville property and otherwise, to satisfy the trustees of this Lodge. Vote then carried by two-thirds vote. Brother Ira Ingram resigned as treasurer. Motion that we accept Brother Ingram’s resignation. So ordered.” There was no offer to further prove that the transaction was completed by the giving of a trust deed to secure the proposed loan or that it was otherwise secured to the satisfaction of the trustees, or that Ingram was released in any way. The oral evidence offered was clearly improper. The records of the lodge, if available, were manifestly the best evidence of its proceedings. The ruling of the court was therefore not prejudicial to the defendant.

The judgment of the circuit court is affirmed.

Affirméd.


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    Henry Rees, Appellee, v. Gerhard Schmits et al., Appellants.
    1. Public policy—when guilty party aided as against another guilty party. If inequality of guilt exists, as, for instance, where one party is by moral duress coerced into participation in illegal transactions, equity will grant relief at the instance of the party so coerced.
    2. -Duress—what constitutes. Notwithstanding a party may not have been actuated by any apprehension of imminent danger to Ms life, limb or liberty, duress may be established by a showing of oppression, imposition, undue influence or the taking of undue advantage of financial stress.
    Appeal from the Circuit Court of Adams county; the Hon. A. Akers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Behearing denied December 8, 1911.
    Fred G. Wole and Hubbard, Schmiedeskamp & Groves for appellants.
    Govert & Lancaster, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendants from a decree of the circuit court granting the relief prayed by a bill in equity, which charges, in substance, that the city of Quincy, pursuant to an ordinance theretofore adopted, let to the complainants, as lowest bidders, contracts for the construction of a certain sewer; that said sewer was constructed by the complainants in substantial compliance with the ordinance and contracts ; that on June 1, 1910, there was a balance due complainants on the contract price in excess of $17,000 which remained due and unpaid; that on that day the defendants to the present bill, filed in the circuit court of Adams county their bill in chancery, to which complainants, the county treasurer, and the board of local improvements, treasurer, comptroller and clerk of said city of Quincy were made parties defendant; that summons was duly issued and served, the defendants answered, and the cause proceeded to a hearing; that by said bill it was charged specifically that certain of the provisions of the ordinance, specifications and contracts between the complainants and the city of Quincy were not complied with; that in addition to the sum claimed to be due upon said contracts, the complainants demanded the sum of $1400 in payment for timbers used in bracing walls of the trench of said sewer, and which had been allowed to remain therein; that the payment of said extra claim would constitute a fraud upon the taxpayers; that said sewer had not been constructed substantially according to said ordinance, and constituted a different improvement from that provided for by said ordinance; that the sum of $15,-194.29 remaining unpaid upon the contract price, was no more than sufficient to cause said sewer to be so changed and constructed as substantially to comply with the ordinance and specifications; that the complainants were the owners of lots along the line of, and assessed for said sewer, and general taxpayers, of the city of Quincy, and that said bill prayed that the city of Quincy be permanently restrained from paying said sum of $1400 extra for planks and timbers, and from accepting said sewer, and that the defendants be restrained from collecting said tax on the property of the complainants until the said sewer was constructed according to the ordinance. The present bill further charges that the allegations in such former bill that the sewer was not constructed substantially in compliance with said ordinance and specifications, and constituted another improvement, were false and untrue; that the complainants had been compelled to borrow large sums of money in order to complete said sewer, and at the time of the hearing of said cause were heavily indebted and had no means other than the sum due from said city, with which to re-pay said loan; that in the event that the payments from said city were long delayed, they would be financially ruined; that defendants Shanahan, ITummert and Simons, with full knowledge of such facts, wickedly and maliciously and with the intent to injure and extort a large sum of money from the complainants, on July 26, 1910, during the hearing of said chancery proceeding, represented to the complainants that unless they paid to said three defendants, or one or more of them, a large sum of money, the same would be prosecuted in both the circuit and appellate courts, and that in that event the complainants would not receive the money from the city for three or four years; that said defendants further represented to the complainants that there were defects in said sewer known to them, but not known to the complainants, which would prevent them, the complainants, from recovering from the city; that all of said representations were to the knowledge of said last named defendants, false and untrue; that said three defendants represented to complainant Henry Eees, that if he would pay to them the sum of $1653 they would procure the dismissal of said chancery proceeding, pay the special assessment against the lots owned by the complainants in said bill, and endeavor to secure the acceptance of the sewer by the city at an early day, and the payment therefor to the complainants ; that complainant, Henry Eees, under duress and fear of being broken up financially and ruined in business affairs in case said suit was prosecuted and such payment delayed, accepted said proposition, and paid to said Shanahan and Simons $1289 in cash and gave a check to Shanahan for $364, which check was to be retained by Shanahan until the balance was paid to the complainants by the city, under said contract.

The bill further charges that complainant, Henry Eees, made said payment and gave said check for the purpose only of securing an early payment from the city of Quincy and not for any indebtedness due to the defendants or any of them; that the sum paid is in excess of the special tax against the premises of the-complainants in said former suit; that such excess was used for the benefit of the complainants in said chancery proceeding; that part of the complaining taxpayers had paid some part of their tax to said Simons, but complainants were unable to state the names or amounts so paid, and did not know the extent to which any one of the defendants herein had been benefited by the payment made by the complainant Henry Eees; that the chancery proceeding was dismissed in pursuance of said agreement, on July 27, 1910; that said sewer had not yet been accepted, nor had anything been paid complainants on the construction thereof,' since the institution of said chancery proceeding. The bill concludes by making all parties to said chancery proceeding defendants, and prays the discovery of the amounts paid to the complainants in said cause or for their benefit out of said sum of- $1289, and that the check given by Henry Eees to Shanahan be cancelled and returned, and that complainants may have said sum of $1289 repaid to them by the defendants to whom or for whose benefit the court may find same to have been paid, and have such other and further relief as equity may require. The answer of the defendants to the present bill reaffirms the allegations of their former bill, and avers that said special tax could not be legally collected and that the settlement with the complainant was equitable, and denies that said sewer was constructed in substantial compliance with the ordinance. It denies that the complainant and Frank Rees were in financial difficulties or that the defendants, or any of them, had any knowledge of their so being, and avers that on the contrary, they were worth about $35,000, including various pieces of real estate clear of encumbrance. It further denies the use of any duress in the settlement in question, and alleges that the complainants have an adequate remedy at law.

The evidence discloses that the city of Quincy entered into two contracts with the complainants, Henry Rees and Frank Rees, for the construction of a sanitary sewer pursuant to an ordinance theretofore enacted; that they undertook and completed said sewer; that during the course of the work Henry Rees purchased the interest of his brother Frank Rees; that when the work was completed, there remained nominally due to the complainants from the city, under the contracts, over $15,000, which sum was, however, actually due to Henry Rees alone; that complainants also claimed the sum of $1400 for lumber used by them in shoring the walls of the trench and by the board of local improvements ordered left therein; that in the fulfillment of the contracts in question and other work undertaken by him, the complainant, Henry Rees, had contracted « '■ indebtedness to a bank and material men and others, amounting to over $30,000. The evidence adduced by the complainants tended to show that his real and personal property was insufficient at its full value, to defray such indebtedness, and that such fact was known to the defendant Simons, and that at his instance, lie and the other defendants filed the bill in chancery mentioned in the present bill.

The evidence further discloses, that a temporary injunction was issued in accordance with the prayer of such bill, but later dissolved, but that the city refused to make further payments upon the contracts until the questions raised by the bill in question were finally determined. One Heckenkemp'testified that several days prior to the time set for the hearing of the issues upon the former bill, the defendant Simons told him that the case was coming up, and that there was a chance to settle it; that if the complainant Henry Eees was willing to pay him, Simons, $1,000, he would drop the matter; that on the following day the defendant Hummert informed him that the case could be settled for $1500. Frank Eees, one of the complainants in the present bill, testified that on the day of the hearing, Simons asked him to talk to the complainant, Henry Eees, and have him settle the suit; that he, Simons, would settle for $1350; that if the suit proceeded to trial it would ruin the complainant, Henry Eees. fiDhe complainant, Henry Eees, testified that later on the same day, the defendant Shanahan approached him, and after professing great consideration for him, strenuously urged him to settle the suit, and informed him that Simons would settle for $1650, and that still later Simons in person offered to settle the suit for $1250, in money and a check for $364 payable to his, Simons’ order, stating that the suit was in his hands and that if it were not settled he would keep the complainant, Henry Eees, out of his money for the next two or three years, by appealing the case to the higher courts; that in the same conversation, he, the witness, told Simons that he had every dollar he possessed in the work, and also all the money the banks could lend him.

The evidence further shows that the complainant, Henry Eees, thereupon executed the check demanded and placed it in tlie hands of the defendant Shanahan, to be held by him until the city accepted the sewer and paid the complainant, Henry Bees, the balance dne him, and that on the following morning the complainant, Henry Bees, paid the sum of $1250 in cash to Shanahan, who in turn paid it to Simons. The chancellor refused to permit either of the parties to introduce evidence as to whether or not the sewer was constructed according to the ordinance.

The decree, after reciting the institution of the chancery suit in question, finds inter alia, that the complainant, Henry Bees, was engaged in contracts requiring a large amount of ready money; that he was a man of moderate means, with most of his property in the form of real estate in the city of Quincy; that he had borrowed $20,000 and could borrow no more; that he was in financial difficulty, and believed that if the chancery proceeding in question were prosecuted and appealed, the final determination thereof would be long deferred and that he would be prevented from receiving the money due from the city until the final determination thereof, and thus financially ruined; that the •city refused to pay the money due under said contract until said chancery proceeding was disposed of; that the defendant Simons, during the pendency of said suit, while the same was on hearing, offered to secure the dismissal of said proceeding and the dropping of the charges therein made concerning defective construction, and use his efforts to secure an early payment to said Bees by the city, of the amount due him, upon condition that Bees pay him the sum of $1650, with which to pay the special tax against the.premises of the complainants in said cause; that said Bees, relying upon such representation and under duress and fear of being financially ruined, in case he failed to accept such offer, on July 26, 1910, accepted the same, and paid to the said Simons the money and check as in the bill alleged; that it was agreed upon the dismissal of said cause and the payment by the city to Eees of the amount due him under the contract, such check was to be used for the payment of the attorney fees and costs incurred by the complainants in said suit; that with the money paid to said Simons he paid the special tax levied against the premises of the complainants in said chancery proceeding, and delivered to each of them a receipt therefor, and at the same time collected from them ten per cent of the tax, to be applied on attorney fees and costs incurred in the said suit. The decree orders that Simons pay to said complainant, Henry Eees, the sum of $1286, with interest, and fim ther, that the complainant have and recover of each of the other defendants the respective sums paid by said Simons to them out of said sum of $1286 in satisfaction of the special tax against said premises, that any snm paid by such other defendants be credited on the sum to be paid by said Simons and that in default thereof execution issue against each, and that the remaining defendants go hence without day.

We are not prepared to hold that the findings of the chancellor upon the controverted question of fact, as disclosed by the decree, are palpably contrary to the evidence, and must therefore, in discussing tiie legal questions presented, accept such findings as facts. We are of opinion that the chancellor was clearly warranted in finding that by unlawful threats to continuo the prosecution of the chancery proceeding then pending, the defendants extorted from the complainant the money and check in question, and that he paid the same solely through fear of serious financial distress, if not ruin. Notwithstanding the complainant was not actuated by an apprehension of imminent danger to his life, limb or liberty, which element is essential to constitute a duress of person, it is manifest that he was coerced to act through what is characterized as duress of property or moral duress, which overcame Ms free agency, and which equally with duress of person, entitled Mm to recover back the money paid by him under such influence. Duress of this character has been recognized by the courts of this state in the following cases: Spaids v. Barrett, 57 Ill. 289; County v. Simmons, 5 Gilm. 513; Thurman v. Burt, 53 Ill. 129; City v. Sperbeck, 69 Ill. App. 562; Pemberton v. Williams, 87 Ill. 15; C. & A. R. R. Co. v. Coal Co., 79 Ill. 121; Pub. Co. v. Ass. Press, 114 Ill. App. 241; Prickett v. Madison Co., 14 Ill. App. 454. Moral duress consists in imposition, oppression, undue influence,- or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another; the theory under which relief is granted being that the party profiting thereby has received money, property or other advantage, which in equity and good conscience he ought not to be permitted to retain. R. Co. v. Coal Co., 79 Ill. 121; Pub. Co. v. Press Association, 114 Ill. App. 241. It seems too clear for argument that the transaction in question was contrary to public policy, and therefore illegal.

It is also true, as contended by counsel for the defendants, that as a general rule, the law will not aid either party to an illegal act, but will leave them without remedy as against each other. Compton v. Bank, 96 Ill. 301; Critchfield v. Paving Co., 174 Ill. 466; Doane v. Ry. Co., 160 Ill. 22. Such rule is, however, subject to the qualifications stated in 2 Pomeroy’s Equity Jurisprudence, 459, in the following language: “When the contract is illegal, so that both parties are to some extent involved in the illegality,—in some degree affected with the unlawful taint,—but are not in pari delicto,— that is, both have not with the same knowledge, willingness and wrongful intent engaged in the transaction, o-the undertakings of each are not equally blameworthy, —a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent. Inequality of guilt exists when the contract is intrinsically illegal, and is of such a nature that the undertakings or stipulations of each, if considered hy themselves alone, would show the parties equally in fault, but there are collateral and incidental circumstances atteiiding the transaction and affecting the relations of the two parties which render one of them comparatively free from fault. Such circumstances are imposition, oppression, duress, threats, undue influence, taking advantage of necessities or of weakness, and the like. ’ ’ This doctrine is announced with approval in Baehr v. Wolf, 59 Ill. 470, and Paige v. Hieronymous, 180 Ill. 637.

In Evans v. Funk, 151 Ill. 650, after announcing the general rule above stated, the court says: “But this general rule has its exceptions arising out of necessity or from unyielding principles of public policy or from the different conditions of the parties.” “The different degrees of turpitude, immorality or illegality may be so great between different persons engaged in such acts that the general rule will bend to meet the demands of such case and allow a recovery.” In Story’s Equity Jurisprudence, section 300, it is said that, “in case where both parties are in delicto, concurring in illegal acts, it does not follow that they are in pari delicto, for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship or undue influence, or great inequality in conditions of age, so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be, on the part of the court itself, a necessity of supporting the public interest or policy in many cases, however reprehensible the acts of the parties may be. ’ ’

We are of opinion that the case at bar is clearly within the exeception stated. It certainly cannot be said that the same willingness to enter into and perform the agreement existed on the part of the complainant, as was evinced by the defendants. The proposition was first broached and urged by the latter, and was, as has been said, accepted and acted upon by the complainant, not freely and voluntarily, but under moral duress and coercion. Such was not the case with the defendants. If they believed the charges of their bill to be true and well grounded and in disregard of the rights of the public and others interested, agreed, for a money consideration to them paid, to withdraw further opposition and thus permit the public to be defrauded, their conduct was manifestly wrongful and illegal. On the contrary, if they knew such charges to be false and baseless, the demand for and acceptance of the money and check bordered upon blackmail. The inequality of guilt of the respective parties is most apparent and we cannot escape the conclusion that the collateral and incidental circumstances attending the transaction were such as to render the complainant comparatively free of fault. If the only relief sought by the complainant was the recovery of the money paid, the contention of the defendants that he had an adequate remedy at law would be meritorious. It is further sought however, to procure the surrender or cancellation of the check. This relief is only attainable by a proceeding in chancery, and where equity assumes jurisdiction for one purpose it will retain it for all.

The decree of the circuit court is in accordance with equity and justice, and is affirmed.

Affirmed.


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    Mary M. Stidum, Plaintiff in Error, v. William S. Stidum, Defendant in Error.
    Separate maintenance—when contract as to alimony abrogated. Held, under the evidence, that a contract fixing alimony in gross though approved by the court was by the mutual consent of the parties abrogated and rescinded.
    Bill in chancery. Error to the Circuit Court of Hancock county; ^he Hon. Habry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 14, 1911.
    William H. Hartzell and Seymour L. McCrory, for plaintiff in error.
    O’Harra, O’Harra, Wood & Walker, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This writ of error is prosecuted by the complainant from a decree dismissing her bill in chancery, upon a hearing, for want of equity. The bill alleges that on December 22, 1899, the complainant and defendant were married; that they lived together as husband and wife until May 29, 1905, at which time the defendant wilfully deserted the complainant, and that they at the time of the filing of the bill, were living separate and apart without her fault; that prior to such time a child had been born to them; that on September 9, 1905, the complainant filed her bill in the circuit court ashing for separate maintenance, and that on December 19, 1905, by agreement of the parties to the suit, there was a certain contract entered into, which provided that in consideration of the payment to the complainant, by tbe defendant, of the sum of $550, she released all rights in and to his property; that said contract was approved by a decree entered in said separate maintenance proceeding, and that the cause was striken from the docket. The bill further alleges that the complainant and defendant continued to abide by the terms of said contract, until 1907, when the defendant returned to the complainant, and again lived witn her as her husband, and that by mutual agreement said contract was set aside; that as a result of the latter cohabitation, the complainant became pregnant and a child was born, and that thereafter the defendant again deserted the complainant without reasonable cause, and that she was then living separate and apart from him without her fault. The bill prays for the separate maintenance of the complainant, and the care, custody and control of the children of the parties. The defendant answered denying the material allegations of the bill and setting up the contract referred to therein, as a defense to the action.

The evidence tends to show that on the 9th day of September, 1905, plaintiff in error filed a former bill against defendant, in the circuit court of Hancock county, asking for an allowance for the maintenance of herself and her children; that on October 20, 1905, the parties entered into a written contract, by which they settled the separate maintenance suit, and the complainant accepted the sum of $550 in full satisfaction of all alimony, separate maintenance for herself and the children born to her, and in full of every claim which she could have in law or in equity against the said defendant in error for maintenance and support, forever, and released the defendant from all claims which she might or could have against him, and agreed never to claim any part of any property which he might at any time acquire. The plaintiff in error was given the custody of the children, and agreed to support them at all times in the future. After the making of said contract, on December 19, 1905, a decree was entered in said cause by consent, said contract being embodied in the decree and made a part thereof. The court by such decree found that the said sum of $550 had been paid to the plaintiff in error; that the contract was fair, equitable and just, and approved the same, and decreed that said contract was a just, fair and equitable adjustment of all matters involved iu said suit, and all property interests, past, present and prospective, of the respective parties, and that the same should be considered under any and all circumstances as relieving the defendant from maintaining and supporting his said wife; that she should be forever estopped from making any claim against him for maintenance and support, and under no circumstances were either of the parties to claim or have any right to any part of the property that might be owned by the other at any time, and each of the parties was ordered to carry out fully the said contract.

The evidence further shows that the sum of $550 mentioned in the contract, was borrowed by the defendant from his father; that the same was used by the complainant to purchase a home; that after the making of said contract, the defendant occasionally, during a period of two years, secretly visited his wife, the complainant, spent the evening with her, and in part at least, resumed their relations as husband and wife, as a result of which a second child was born to them; that he contributed money with which to purchase food and clothing for the children, who then lived with the complainant, but that upon discovering her condition of pregnancy he again deserted her and ceased contributing toward the support of the children. It seems to be conceded by the complainant that if the contract was still in full force and effect at the time of filing the present bill, the same was properly dismissed for want of equity. Counsel insist, however, that the evidence shows that such contract was abrogated by mutual consent of the parties. The complainant testified in part as follows: “We understood at the time we were living together as husband and wife; we both said we would do away with the contract; he did not want his parents to know that we were living together until he could get the debt paid; I helped hide him in my home but there were people who saw him there with me; he came one night when my sister was there and he said he did not care for her knowing it, thai he did not care who knew so his father did not find it out. The most he said to me was he did not want his folks to know it. He said he owed this money and was afraid they would not leave him anything. We said the contract was done away with and we looked at it we were living together. We were living together then as husband and wife; it was talked over between my husband and I then; after I became pregnant he left the country at that time; he said he would be back in a night or two; that he was going to tell his father about it anyway and was then coming back to live with me openly.”

The defendant’s testimony is in part as follows:

“There was never any talk between my wife and I to do away with the contract or decree of separate maintenance. I told iny wife that I would not live with her. I never told her I would live with her when the debt was paid. I told her I didn’t want my folks to know I was coming there. I never made any promise to live with her any time. My wife asked me to come of nights. She has always begged me to live with her again but I never agreed to under any circumstances. I told her I wouldn’t do it, on account of the way she had done me before. I ran off and left her before, but I did not know she was in the shape she was in. I found out her condition but did not go back. Then I kept coming there until she was in that condition again, A good many times she begged me to come and live open. She told me that was no way to do, to come there of nights; wanted me to live with her as a husband ought to. I kept going there of nights and having intercourse with her from time to time with my two children there in the house. They were supposed to be mine. I do not know they are mine, I could not swear they are mine, I haven’t any reason to believe they weren’t mine. I do not charge they were not. I haven’t any reason to believe the last one isn’t mine. The last night I was there I told her I would be back again. I went home, stayed there a day or two and then left the country, because I knew my folks would find it out, it would cause trouble. I went to Nebraska on the 15th of March, and came back home on the 3rd of July. I have been giving my wife money right along. The minute I quit going there, I quit giving her money. T gave her the money because she asked for it; she told me the children needed clothes and something to eat and asked for money, and I gave it to her. She told me she washed for a living and wanted me to come back and live with her. She said that she had a hard time to keep the children and that she had to wash to make a living and I said that I won’t come back with you at all, I won’t live with you.”

We shall not quote further from the record. It will suffice to say that after a careful examination and consideration thereof, we are of opinion that the position of the complainant is warranted by the evidence; that the subsequent conduct of the parties impliedly, at least, sufficiently shows an abandonment of the contract. The despicable actions of the defendant as disclosed by his own testimony, impel us to the belief that his statements are not entitled to equal credit with those of the complainant and her testimony is to the effect that the parties expressly agreed to nullify the contract. Waiving, however, that question, the defend-? ant must be held by his conduct in resuming in part, at least, the marital relations, to have impliedly consented to a mutual abrogation and abandonment of the contract. While the former decree properly determined that the contract was understandingly made, and that the provisions thereof fairly adjusted the property rights of the parties as they then existed, it was not effective finally and irrevocably to adjudicate the rights of the parties and their offspring, the chancellor in that proceeding being without jurisdiction to do so. It manifestly was not a decree for separate maintenance under the statute, for it does not contain the essential finding that the wife was living separate and apart from her husband without her fault. But if it could be so considered, and the amount paid as the consideration for the contract be treated as an allowance in gross, such gross allowance would have been erroneous for the reason stated in Hunter v. Hunter, 121 Ill. App. 380, and Raab v. Raab, 150 Ill. App. 555.

When equitable principles are applied to the facts disclosed by the record, the attempt of the defendant to secretly enjoy the. benefits of the marital relation, and at the same time escape the duties and responsibilities attendant thereon, through the medium of the contract in question, must fail. We are of opinion that the evidence was sufficient to support the material averments of the bill, and that the chancellor erred in not granting the relief prayed.

The decree will be reversed and the cause remanded with directions to the circuit court to proceed in accord-, anee with the views herein expressed.

Reversed and remanded with directions.


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    John Cappelin, Appellee, v. Jones & Adams Coal Company, Appellant.
    Mines and miners—ivho not entitled to protection wider provisions of act. An employe who has been specially assigned, under an arrangement for special compensation, to assist in repairing and making safe a dangerous place, cannot, at his option, change his status and become a mine employe, strictly so-called, entitled to the protection of the provisions of the Mines and Miners Act.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 14, 1911.
    Brown, Wheeler, Brown & Hay, for appellant; Mastín & Sherlock, of counsel.
    Stevens & Herndon and W. A. Bradford, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case to recover damages for injuries alleged to have been sustained by the wilful violation by the defendant of the Mines and Miners Act, in failing to post danger notices at a certain dangerous place in its mine, at which the plaintiff was working, and in permitting the plaintiff to enter such working place before the dangerous conditions had been made safe, not under the direction of the mine manager. A motion by the defendant at the close of the evidence, for a peremptory instruction, was overruled, and upon the verdict of the jury judgment was rendered against the defendant for $750.

Prior to August 9,1909, the plaintiff had been in the employ of the defendant as a miner. He had been for several weeks employed in turning and driv!ing'.a certain room in the defendant’s mine, and had driven the same some twenty feet from the entry, including the neck of the room. While he was so engaged, slate had frequently crumbled and fallen from the roof of the room. On the morning of the day in question, the plaintiff, upon entering said room shortly before eight o’clock, found that slate sufficient to fill three or four cars, had fallen from the roof. Under the custom followed in the mine, in case of a fall of slate, it was the duty of the miner to clean it up, but if he desired to receive pay therefor it was necessary for him to report to the mine manager and receive authority from him to do the work, in which case he received certain compensation, by hour, for the time employed; if the miner cleaned up a fall of slate without first reporting to and receiving authority from the mine manager, he received no pay for the work. Pursuant to such custom, the plaintiff informed the mine manager of the fall of slate, and received authority from him to clean up the same and load it into cars. From that time until he was injured, the plaintiff proceeded to load the slate into cars as fast as the same were furnished him by the drivers. In the meantime, timber-men came to the room and placed a bar across the neck of the room, about five feet from the entry, and were preparing to place another bar across said neck and then lag between the bars for the purpose of supporting the roof. After the plaintiff had loaded the third car, and while awaiting another, he proceeded to drill a hole in the coal for the purpose of placing a shot therein, and while so engaged observed that his lamp was in need of oil. While passing through the neck of the room for the purpose of procuring oil, a large piece of slate fell upon him and injured him.

The evidence clearly shows that the roof of the room in question was at the time of the injury and for some time prior thereto, in a dangerous condition. On the morning in question the mine examiner indicated by a chalk'mark that the place needed timbers; he failed, however, to place a danger signal at or near the room, or to report to the mine manager that the room was dangerous.

The controlling issue in the case, as we view it, is whether or not the plaintiff, at the time he was injured, was engaged in mining coal, so as to place him under the protection of the Statute, or whether he was merely engaged in making his working place safe under the direction of the mine manager, in which event he would not be entitled to recover under the declaration. Although when the plaintiff first entered the room to dig coal, he was within the protection of the Statute, after his complaint to the mine manager, and after he had sought employment as a company man and was ordered by the mine manager to clean up the slate, he was not within the protection of the Statute. At the time of the accident his relation to the defendant was not that of a miner engaged in digging coal, as alleged, but that of an employe under direction to assist in repairing and making safe a dangerous place. Coke Co. v. Andrewsewski, 137 Ill. App. 1. Having been assigned to the latter duty, for which he was to receive special compensation by the hour, it was his duty to continue in the performance of the same until his work was completed. The defendant had the right to assume that he would do so. He had no right to change his status by digging coal or working at the face of the room while he was being paid as a company man. After the defendant had assigned him to the work in question, it was manifestly not its duty to place a guard over him to see that he did not mine coal until the place had been made safe. To hold that he was at liberty, without notice to the defendant, to change at will, from one capacity to the other, and thus place himself alternately within and without the protection of the Statute, would be manifestly unjust to the defendant. If he chose to depart from the employment which he willingly and knowingly assumed, whatever may have been his motive, without first notifying the mine manager, he cannot claim the protection of the Statute.

. The judgment of the circuit court must, therefore, be reversed.

Reversed with finding of fact.

"We find that the defendant was not guilty of the negligence charged in the declaration.


text:
    August Hoffman, Appellee, v. Peoria, Bloomington & Champaign Traction Company, Appellant.
    1. Ordinary carf—what does not excuse from obligation to exercise. Intoxication does not excuse a person from the obligation to exercise ordinary care for his own safety.
    2. Contributory negligence—crossing railroad tracks. A person in an intoxicated condition who attempts to cross railroad tracks in front of an approaching engine is guilty of contributory negligence if his injury could have been avoided by looking and listening.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 3911.
    Reversed.
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Livingston «Si Bach, for appellant.
    Wight & Alexander, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion "of the court.

Upon a former trial of this cause in the circuit court, the trial judge, at the close of the evidence, directed a verdict for the defendant, and rendered judgment upon the same in bar of action and for costs. Upon an appeal to this court, such judgment was reversed and the cause remanded for error of the trial court in directing a verdict. The character of the pleadings and the leading facts disclosed by the evidence, may bo .found in the opinion reported in 155 Ill. App. 126. This court there expressed no opinion as to the weight or sufficiency of the evidence, further than to determine that there was sufficient evidence in the record to have required the submission of the cause to a jury.

Upon the present appeal we are at liberty to weigh the evidence, and it becomes our duty to determine whether or not the finding of the jury that the plaintiff was, at the time of and immediately prior to his injury, in the exercise of due care and caution, was manifestly against the weight of the evidence. The evidence relating to this issue ivas substantially the same as upon the former trial. The circumstances under which the plaintiff was injured are, briefly stated, the following: The defendant’s railroad crosses a public highway at right angles. There was nothing to obstruct the view of cars approaching said highway from the east. One approaching the highway from the north could easily see from any point within two hundred feet of the 'crossing, an approaching car at any place within nine hundred feet of the highway. The road was level north of the track for more than half a mile. There was an oats stubble field on the north side of the track, immediately east of the highway, but no buildings, cars or other obstructions. The track was in good condition. There was some proof that there were weeds and grass growing on the right of way, but it does not appear that the same would prevent a person approaching the crossing from the north, at any place on the track, within nine hundred feet of the crossing, from seeing an approaching car.

The plaintiff was about sixty-four years of age. The greater weight of the evidence shows that on the day in question he had been drinking intoxicating liquor to excess. On the afternoon of the day he was injured, he was driving along the highway in question, seated upon a lot of posts loaded on a hay-rack, drawn by two horses. While he was attempting to cross the defendant’s tracks, he was struck by one of its cars and as a result wa,s severely injured, his horses killed, and the hay-rack and wagon destroyed. He testified that at a point eighty feet north of the crossing he stopped his horses, stood up on top of the posts and looked each way to see if a car was approaching, and that his horses were traveling at the rate of five miles an hour. The evidence still further shows that the plaintiff was acquainted with the crossing, living within a short distance thereof; that he had used it many times.

When the surroundings of the place of the accident, about which there is no serious controversy in the evidence, are considered, it seems exceedingly improbable, if not impossible, that the plaintiff, if he had looked, could have failed to see the car approaching in ample time to avoid injury. If he did observe the car, and attempted to cross the track ahead of it, he was clearly guilty of contributory negligence; and this is also true if he failed to look or listen. The fact that he may have been wholly or partially intoxicated at the time did not, of itself, constitute a lack of due care. Such fact did not, however, excuse him from the exercise of such care as might reasonably be expected from one who is sober. Keeshan v. Traction Co., 229 Ill. 533.

We are impelled to the conclusion that the verdict of the jury was clearly against the weight of the evidence, and that the judgment should not be permitted to stand. The same is therefore reversed, with directions to the-clerk of this court to incorporate in the judgment to be entered, the finding that the plaintiff, at and immediately prior to the time be was injured, was not in the exercise of due care and caution for Ms own safety.

jReversed with finding of fad-


text:
    Fred Wettrick, Appellee, v. Daniel Martin et al., Appellants.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—when as to immaterial issue proper. It is proper for the court to instruct the jury to disregard any issue which is immaterial to the determination of the merits of the controversy.
    3. Instructions—when propriety of, upon question of damages not considered. The propriety of an instruction pertaining solely to- a question of damages will not be considered on review if the defendant did not urge as a ground for a new trial that the damages awarded were excessive.
    Action in trespass. Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    William H. Hartzell and Seymour L. McCrory, for appellants.
    Scoeield & Caliee, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in trespass for an alleged assault and battery. To the declaration, which is in the usual form, both defendants pleaded not guilty, and the defendant Edward Martin also pleaded self-defense of his person. Upon a trial by jury, a verdict was returned finding both of the defendants guilty and assessing the plaintiff’s damages at the sum of $1,000. Judgment was rendered on the verdict, and defendants appealed.

The evidence adduced by the plaintiff tends to show that for some time prior to December 9,1910, there had been a dispute between the defendants and the plaintiff over the ownership and possession of a tract of land lying between the farm of the respective parties, which land was then in the possession of the defendants. On the day in question, the defendants were hauling wood over the disputed tract. The plaintiff ordered them off the same, and upon their refusal to leave, grasped their horses by the bits and attempted to stop them, while Edward, who was driving, in the meantime endeavored to urge them onward. Edward then jumped off the wagon and struck the plaintiff over the back with a buggy whip. The plaintiff then attempted to take the whip from Edward, whereupon, Daniel jumped off the wagon and started toward the plaintiff with a club in his hand. 'While the plaintiff’s attention was thus diverted, Edward again struck him several times over the head with the whip, severely injuring him and so that he was rendered unconscious.

The evidence of the defendants tends to show that while Edward was urging the team forward with his whip, the plaintiff struck him on the head with a club and knocked him to the ground, and when Daniel alighted from the wagon and expostulated, with him, the plaintiff again struck Edward several times on the head, arms and across the back, and that Edward struck hirp in self-defense. While the evidence is in close conflict upon the material issue as to by whom the first blow was given, we are of opinion, after a careful examination of the record, that the jury were justified in finding that the defendant, Edward Martin, was guilty of assaulting the plaintiff, as charged, and that he was not acting in self-defense. While the evidence as to Daniel Martin’s guilt is not so strong, we cannot say that the jury was clearly unwarranted in finding that even if he committed no direct assault himself, he incited and encouraged his co-defendant in so doing. There is evidence tending to show that when.Edward jumped off the wagon he handed the reins to Daniel, who at the time had reason to believe that Edward was about to assault the plaintiff; that after Edward struck the plaintiff, Daniel jumped from the wagon, seized a club, rushed to where the plaintiff stood, and raising the club, threatened to strike him, and that at the same time he advised Edward to kill the plaintiff. We are not disposed to disturb the finding of the jury upon the latter issue, approved, as it was, by the trial judge.

Complaint is made of the giving of the eleventh instruction offered by the plaintiff, which, among other things, told the jury that there was no evidence before them as to who was the owner of the land in dispute between the parties, and that this question was not before them for their consideration in deciding the ease. The objection urged is that the jury were thus told that the question of the possession of the land, or who was the owner of the land, was not before the jury for their consideration. It is argued that the question as to the possession of the land was material in the casé upon the issue of self-defense, for the reason that the dispute in question arose over the possession of the land; and furthermore, that the question of possession was proper to be considered in mitigation of damages. However this may be, it will be observed that the instruction refers, not to the question of possession, but to that of ownership of the land, which question is manifestly not involved in the case, and is immaterial under the pleadings.

Plaintiff’s’ instructions thirteen and fourteen, of which complaint is made, refer solely to damages. Inasmuch as it does not appear from the abstract that the defendants urged as a ground for new trial that the damages were excessive, it is unnecessary to consider this question. Complaint is made of various other rulings of the court upon the instructions. Ve have examined the instructions, and find no prejudicial error in the rulings of the court thereupon.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    City of Springfield, Appellee, v. Postal Telegraph=Cable Company, Appellant.
    1. Streets and alleys—jurisdiction and power of cities with respect to. Whatever may be the rule in other jurisdictions the law is well settled in this state that a city may under the power of exclusive control of its streets, allow a use of them which is not inconsistent with the public objects for which they are held, and it is equally well settled that a city may regulate such use and fix a reasonable compensation to be paid for the same.
    2. Streets and alleys—presumption as to ownership. It is a presumption of law that the fee to public streets is in the city controlling them.
    3. Ordinances—validity of, imposing fee for use of streets and alleys. An ordinance which imposes a fee for the use of streets and alleys by placing thereon telegraph poles, is within the power of a city to enact and if reasonable is valid.
    4. Ordinances—when presumption of reasonableness applies. If an ordinance is within the delegated powers of a city it will be presumed to be reasonable and valid, and the burden is upon the party attacking it clearly to establish its unreasonableness.
    5. Debt—when action lies. Debt is the proper form of action for the recovery by a municipality of remuneration in a sum certain under an ordinance for the use and occupancy of its streets and alleys.
    Action in debt. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Brown, Wheeler, Brown & Hay and John T. Creighton, for appellant; William O’Neil, of connsel.
    Frank L. Hatch and Albert Stevens, for appellee; Timothy McGrath, of connsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment for $640 rendered upon a directed verdict, in an action in debt. The declaration alleges that the defendant occupied certain portions of the streets and alleys of the city of Springfield, during the years 1906, 1907, 1908, and 1909, without payinginto the city treasury, on the first day in September in each of said years, one dollar for each pole over eight feet high, as required by certain ordinances of said city, by reason whereof an action had accrued to the plaintiff to demand of the defendant the sum of $160 for each of said years, for so occupying said streets and alleys as aforesaid.

The defendant interposed the general issue, and gave notice of the following special matters intended to be relied on for a defense on the trial, to-wit: That an act of Congress of 1866 provided that all telegraph companies organized under the laws of any state should have the right to construct, maintain and operate lines of telegraph over post roads, and that an act of Congress of 1884 declared all public roads and highways post roads, and that it had accepted the benefit of those two acts in the proper manner; also, that it was engaged in interstate commerce, and that the ordinance was an unlawful interference with interstate commerce and was a tax levied upon one of the instrumentalities employed by the United States Government ; also that said ordinance attempted to deprive it of its property without due process of law; and that it denied defendant equal protection of law and was a tax levied upon a franchise granted by the United States of America; also that the plaintiff had no power to pass such ordinance; that it had been under no expense about inspecting and regulating said poles; that the license was not based upon the cost of inspection; that it was largely in excess of any reasonable amount necessary for inspection and regulation; that said license was designed as a revenue measure, and that said license was not proportionate to the value of the prop-' erty upon which its poles were located, nor to the obstruction of, nor interference with business on highways.

The material facts shown by the evidence are, that the defendant owned the 160 poles mentioned in the declaration; that the defendant company was incorporated under the laws of Illinois, on October 12, 1905, for the purpose' of carrying on the business of trans- ■ mitting telegraphic messages; that it accepted the Post Eoads Act of Congress of 1866 and its amendment of 1881 in proper manner. The evidence further shows, that on January 6, 1908, the city council of said city adopted an ordinance, which, so far as it applies to the present case, is as follows:

“Be it enacted by the City Council of the City of Springfield: Section 1. That article one of chapter seventeen of the Springfield Code (1902) entitled, 'Licenses/ be and the same is hereby amended to read as follows:
“Licenses. It shall be unlawful for any person to be engaged in or to carry on any business, occupation or pursuit hereinafter mentioned in this article, within the limits of the city of Springfield, without first having obtained license therefor in the manner hereinafter provided.
“Section 26. (Posts and Poles, License for.) Any person, firm or corporation owning, controlling or occupying any post or pole over eight feet high, which may occupy any portion of any street, alley or sidewalk within the city of Springfield, said pole or post being used to support electric or other wires of whatsoever nature, or to support any sign or awning or display for the purpose of advertising shall pay annually into the city treasury the sum of one dollar for each pole or post owned, controlled or occupied by said person, firm or corporation as a remuneration to the said city for the use of the portion or portions of the street, alley or sidewalk which said pole or post may occupy.
“Section 29. (License, When due.) The license hereinbefore provided shall be due on the first day of September of each year.”

The evidence further shows that from the date of its incorporation until the date of the suit, the appellant company occupied the streets and alleys of the city of Springfield with poles over eight feet high, carrying wires, without any protest on the part of the city, without any demand for payment of one dollar per year for each pole, and without having paid anything into the city treasury during such time.

The plaintiff, in argument, disclaims that the effect of the ordinance in question is to impose a license upon the defendant for the use of its streets or alleys, or to levy a special tax upon its telegraph poles situated thereon, or an attempt to exercise the general police power for defraying the 'expenses of inspection; it does claim, however, the right to require of the defendant the payment of one dollar annually for each pole over eight feet high, occupying any portion of the streets, alleys or sidewalks of said city, as remuneration for the use of the portion or portions of the streets, alleys and sidewalks so occupied, and that such is the sole intent and effect of the ordinance. Such disclaimer renders it unnecessary to discuss many of the questions raised and argued by the defendant. The vital issue is as to whether the ordinance is ultra vires the plaintiff city.

Article V, section 4, paragraph 6, of “An Act incorporating the City of Springfield, and the several acts amendatory thereof, into one act, and to amend same,” provides, inter alia, that the city shall “have power by ordinance to have the exclusive control and power on the streets, alleys and highways of the city and to * * * regulate * * * the same,” etc. (Pub. and Priv. Laws Extra Session 1854, page 35.) Section 6, Article 1 of the Cities, Villages and Towns act, provides that “all courts in this state shall take judicial notice of the existence of all villages and cities organized under this act, and of the change of the organization of any town or city from its original organization under this act; and from the time of such organization, the provisions of this act shall be applicable to such cities and villages, and all laws in conflict therewith shall no longer be applicable ; but all laws or parts of laws not inconsistent with the provisions of this act shall continue in force and be applicable to any such city or village the same as if such change of organization had not taken place.” Rev. Stat. (1909) page 334.

Section 1 of Paragraph 62 of the same act, provides (9) that the city council shall have power “to regulate the use of the same.” (streets), and (17) that the city council shall have power “to regulate and prevent the use of streets, sidewalks and public grounds for * * * telegraph poles,” etc. (Ibid, page 343.) The two acts referred to constitute the charter of the plaintiff city. So far as their provisions are substantially the same, and not inconsistent with each other, they together with the ordinances based thereon, are to be continued in force. City v. Bross, 101 Ill. 475.

Section 4 of the Statute, entitled Telegraph and Telephone Companies, provides that no telegraph company shall erect any poles within any city, town or village, without the consent of the corporate authorities. Rev. Stat. (1909), page 2212.

Whatever may he the rule in other jurisdictions, the law is well settled in this State that a city may, under the power of exclusive control of its streets, allow any use of them which is not inconsistent with the public objects for which they are held. And it is equally well settled that the city may regulate such use, and fix a reasonable compensation to be paid for the same. Sears v. City, 247 Ill. 204.

It is a presumption of law that the fee to its public streets is in the plaintiff (City of Chester v. R. R. Co., 182 Ill. 382), and in such case its power in the particulars mentioned is subject to no limitation except that such use shall be reasonable and in a manner to safeguard the paramount right of the public to the free and unobstructed use of the streets for the purpose for which they were dedicated. Sears v. City, supra.

In the light of the foregoing authorities we have no doubt as to the power of the plaintiff to by ordinance compel the defendant to pay a reasonable compensation for the use of the portion of its streets and alleys occupied by the defendant. The ordinance being within the delegated powers of the plaintiff, must be presumed to be reasonable and valid, and the burden is upon the defendant to clearly establish its unreasonableness. People v. Ry. Co., 232 Ill. 292. This it has failed to do.

The fact that the word “license” appears in the title and subtitle to the ordinance under consideration is immaterial, inasmuch as there is no statutory requirement of a title to an ordinance. Traction Co. v. City, 207 Ill. 544.

We think that debt is the proper form of action for the recovery by a municipality of remuneration in a sum certain under an ordinance for the use and occupancy of its streets and alleys. Newcastle v. Electric Co., 6 Am. Electric Cases, 87; 1 Chit. Pl. 109a; 2 Chit. Pl. 401.

The judgment of the circuit court is affirmed.

Affirmed.