text:
    The People of the State of Illinois for use of Ernest Dalton, Appellant, v. Chicago & Alton Railway Company, Appellee.
    Gen. No. 5,883.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action "by the People of the State of Illinois for the nse of Ernest Dalton against Chicago & Alton Railway Company to recover penalties for the obstruction of highways in the city of Pontiac by defendant under paragraph 77, ch. 114 of the Illinois statutes, J. & A. ¶ 8826. The suit was originally brought before a justice of the peace. A judgment was rendered in the justice court and an appeal taken to the Circuit Court, where the jury found four violations of the statute and fined the Company ten dollars for each violation. From a judgment entered on the verdict, plaintiff appeals.
    A. C. Norton and Lyle M. Shelly, for appellant.
    C. C. & L. F. Strawn, for appellee.
    Abstract of the Decision.
    1. Railroads, § 468

      —when instruction on right of railroad to obstruct public highway erroneous. In an action against a railroad company to recover penalties for obstructing public highways in violation of paragraph 77, ch. 114, R. S., J. & A. Ü 8826, an instruction modified by the court so as to announce as the law that the railroad company could occupy a highway crossing with its cars or trains for ten minutes for any purpose, held not to state the law.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

2. Railboads, § 468 —when instruction on preponderance of evidence in suit for obstructing highway not erroneous. In an action against a railroad company to recover a penalty for obstructing a public highway with its cars, the giving of an instruction to find the defendant guilty on a clear preponderance of the evidence held not error, for the reason that the instruction included the word “clear” before preponderance.

3. Railboads, § 468 —when instruction as to amount of penalty for obstructing public highway erroneous. In an action against a railroad company for obstructing a public highway with its cars, an instruction telling the jury that it was their duty to fix the same penalty for each violation of the statute that they found from the evidence existed, held erroneous.

4. Appeal and error, § 1535 —when instruction to consider certain evidence harmless. The giving of an instruction telling the jury that it was their duty to consider certain evidence pointed out in the instruction, held not reversible error, although it would have been better to have said in the instruction, “You have the right and it is your duty to consider such evidence in connection with all other evidence in the case.”


source: Caselaw Access Project

author: Mr. Presiding Justice Whitney

license: Public Domain

text:
    Max Frank, Appellee, v. The Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 5,885.
    1. Courts, § 121

      —when both parties cannot appeal to different courts. Where each party is entitled to an appeal and there are different courts to which the appeal might be taken, the party who first perfects the appeal to a particular court thereby carries the entire case to that court, and the other party, if he appeals, must then appeal to same court.
    2. Justices oe the peace, § 174

      —what court has jurisdiction where both parties appeal to different courts. Where the plaintiff in a suit before a justice of the peace recovered a judgment for all he asked and all the justice could give him, and a judgment for all the costs, and perfected an appeal to a city court and the defendant subsequently perfected an appeal to the Circuit Court, held that the plaintiff had no appealable interest entitling him to an appeal to any court, and that the only appeal which conferred jurisdiction was the appeal to the Circuit Court by the defendant.

      Appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Russell & McNerney, for appellant.
    R. H. Kramer, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Max Prank, appellee, sued appellant before a justice of the peace on a demand for two hundred dollars, and had service and the appellant appeared and there was a trial and appellee had judgment for two hundred dollars, and thereafter filed an appeal bond, which was approved, to take the case to the city court of Elgin, and afterward’s during the time allowed by law for appeals, appellant filed an appeal bond to appeal the case to the Circuit Court of Kane county, and that was approved and a transcript and the proper papers were filed in the Circuit Court and appellee appeared there and moved to dismiss the appeal. There was a hearing of the motion and the appeal was dismissed at the costs of appellant, and the case comes here on appeal for review.

It is the law that where each party is entitled to an appeal in such a case and there afe different courts to which the appeal might be taken, the party who first perfects the appeal to a particular court thereby carries the entire case to that court, and the other party, if he appeals, must then appeal to the same court. It is also the law that a party who has obtained all of the relief which he can possibly receive has no appealable interest, and cannot appeal at all. Gray v. Jones, 178 Ill. 169; Williams v. Breitung, 216 Ill. 299.

In this case appellee had a judgment for all that he asked and for all that a justice of the peace could give him, and a judgment for all his costs. It is suggested that possibly appellee desired a judgment for lien as a laborer. No papers filed by him and nothing in the transcript of the justice indicate that he made any such claim, nor did he on his motion to dismiss the appeal show that he had, or that he made any such claim. We are therefore of the opinion that appellee had no appealable interest and that he could not appeal to any court, and therefore that the only appeal which conferred jurisdiction was the appeal to the Circuit Court by appellant, and that the court below erred in dismissing that appeal.

jReversed and remanded.


text:
    James M. Swan, Appellant, v. Charles Lathe, Appellee.
    Gen. No. 5,890.
    (Not to be reported in full.)
    Appeal from the City Court of Sterling; the Hon. William A. Blodgett, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by James M. Swan against Charles Lathe on a promissory note for one hundred dollars. Suit was originally brought before a justice of the peace where plaintiff was defeated, and on taking an appeal to the City Court of Sterling he was again defeated, From the judgment of the City Court, plaintiff appeals.
    Brooks & Brooks and I. L. Weaver, for appellant.
    J. J. Ludens, for appellee.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 50 —what constitutes a good consideration for a note. Where a person having certain property in his possession gives his promissory note to another in settlement of a- claim of the latter that a third person’s interest in the property had been assigned to him to settle a balance due on a certain chattel mortgage, held that there was a good consideration for the note if the claim was true.

2. Bills and notes, § 420 —when exclusion of letter is error. In an action on a promissory note, where the defense was want of consideration, exclusion of a letter offered by plaintiff to show that plaintiff was owner of certain property for which the note was given, held error where the only specific objection to its admission was that it was not written by a party to the suit.


text:
    T. E. Lundell, Appellee, v. Minnie Schultz, Appellant.
    Gen. No. 5,893.
    (Not to be reported in full.)
    Appeal from the County Court of Rock Island county; the Hon. Benjamin S. Bell, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by T. E. Lundell against Minnie Schultz to recover cdmmissions on a sale of real estate. The pleadings were the common counts and the general issue. A jury was waived and the case was tried by the court. The county judge of Boclc Island county having resigned, the county clerk called in the probate judge who presided at the trial. No evidence was offered by the defendant. From a judgment in favor of plaintiff for three hundred dollars, defendant appeals.
    The errors relied on for reversal are: (1) That the presiding judge was illegally sitting as the judge of the County Court; that he had no jurisdiction to preside as such, and his judgment is coram non judice. (2) That the judgment is against the law and the evidence. (3) That upon the facts disclosed by the record, the judgment must necessarily be rendered against the appellee and in favor of the appellant. (4) That the court erred in admitting improper evidence on the part of appellée and erroneously overruled a motion of appellant, made at the close of appellee’s case, to strike out all the evidence and find for appellant.
    A. H. Kohler and J. T. & S. R. Kenworthy, for appellant.
    George W. Wood, for appellee.
    Abstract of the Decision.
    1. Judges, § 9

      —when probate judge may sit in County Court. In case of resignation of a county judge, section 239a, ch. 37, R. S. 1911, J. & A. ¶ 3283, expressly authorizes the county clerk to call in a county or probate judge to sit.
    2. Bbokebs, § 54

      —when evidence sustains judgment for commissions. In an action for commissions for selling real estate, a judgment for plaintiff held sustained by the evidence, it appearing that defendant offered to sell her property on certain terms and to pay certain commissions to the plaintiff if he would secure a purchaser, and it further appearing a purchaser was procured on the terms proposed and that defendant refused to sell.
    3. Appeal and ebbob, § 1414

      —when judgment by court without a jury will be sustained. Where there is sufficient competent evidence to sustain a judgment by the court without a jury, the judgment will not he reversed for minor errors of the court in ruling on evidence.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    City of Dixon, Appellant, v. Jacob Mayer, Appellee.
    Gen. No. 5,896.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabband, Judge, presiding.
    Heard in this court at the October term. 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by City of Dixon against Jacob Mayer to enforce an ordinance of the City of Dixon prohibiting the keeping and maintaining of a house of ill fame therein. Proceedings were instituted in the justice court, where defendant was tried before a jury, found guilty and fined. On appeal from the justice to the Circuit Court a verdict of not guilty was returned and judgment entered thereon. To reverse the judgment of the Circuit Court, plaintiff appeals.
    Mark C. Keller, for appellant.
    Brooks & Brooks, for appellee.
    Abstract of the Decision.
    1. Disorderly house, § 2

      —when evidence of general reputation incompetent. On trial of a person for keeping a house of ill fame, testimony of a witness as to the general reputation of defendant’s house for chastity and morals in that community is incompetent.
    2. Evidence, § 459

      —what inadmissible to prove testimony of a deceased witness on former trial. On appeal from a justice of the peace to the Circuit Court, the transcript of the evidence of a witness who testified before the justice and who afterwards died, held improperly admitted.
    3. Evidence, § 459

      —foundation for introduction in evidence of what a witness swore to on former trial. Proof merely that a certain officer who tried to find a witness on subprena failed to find him is insufficient to lay a foundation for the introduction in evidence at the trial on appeal to the Circuit Court of what he swore to before the justice.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

4. Municipal corporations, § 85 —power to establish rules of evidence. An ordinance declaring that general reputation shall be sufficient to convict a person of keeping a house of ill fame is void. A city cannot establish rules of evidence.

5. Appeal and error, § 1561—where refusal of requested instruction harmless. Refusal of a requested instruction embodied in an instruction given held not error.


text:
    The Thomas Manufacturing Company, Appellant, v. Christ Thede, Jr., Appellee.
    Gen. No. 5,899.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action in assumpsit by The Thomas Manufacturing Company, a foreign corporation, against Christ Thede, Jr., to recover for certain goods sold and delivered by plaintiff to defendant. The declaration consisted of the common counts, to which was interposed the plea of the general issue, plea of payment and a further special plea which alleged that the plaintiff corporation had not complied with the law of Illinois regulating the admission of foreign corporations. The plea of payment was afterwards withdrawn. A similiter was filed to the general issue and a special replication was filed to defendant’s third plea. The replication was one of confession and avoidance of the facts set up in the third plea. Issue being joined, by agreement the parties waived a trial by jury and submitted the issues to the court. The parties then entered into a written stipulation of facts, which, together with the exhibits attached to said stipulation, constituted all of the evidence in the case. Judgment was entered against the plaintiff for costs and from the judgment, plaintiff appeals.
    Appellant urges as ground for reversal: (1) That the court erred in its construction of the written stipulation of facts; (2) that the finding of the court was against the evidence; (3) that the court erred in finding that the business of plaintiff as the same was transacted in Illinois was not interstate commerce; (4) that the court erred in marking a proposition of law submitted by plaintiff “refused;” and (5) that the court erred in rendering judgment against the plaintiff.
    Henry E. Burgess, for appellant.
    W. J. Graham, for appellee.
    Abstract of the Decision.
    Corporations, § 736

      —when foreign corporation not doing business in this State within meaning of statute. In a suit by an Ohio corporation to recover for goods sold and delivered to defendant in Illinois, where the case was heard upon a stipulation of facts and the defense was that the plaintiff corporation had not complied with the law regulating the admission of foreign corporations, held that the fact that the corporation had a warehouse in this State from which its goods were shipped did not constitute doing business within this State, and that plaintiff was entitled to recover, it appearing from the stipulation and from the contracts between plaintiff and defendant and between the plaintiff and the warehouse company that the plaintiff corporation never intended that the warehouse company, or the plaintiff’s shipping agent in Illinois, could complete any contract between a purchaser and the plaintiff, but the question of price to be paid and the responsibility of the purchaser had to be passed upon by the plaintiff at its home office.

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

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


author: Mr. Justice Carnes

text:
    Frances J. Shields, Administratrix, Appellee, v. J. H. Dole Company, Appellant.
    Gen. No. 5,719.
    1. Landlord and tenant, § 240

      —liability of landlord for injuries to servant of tenant resulting from defective premises. A landlord renting an old defective building with no agreement to repair is not liable for injuries resulting to a servant of the tenant from weakness and defects of the building that were as well known to the tenant as to the landlord at the time of the leasing.
    2. Landlord and tenant, § 240

      —when landlord not liable for death of a servant of tenant. The owner of a building is not liable for the death of a servant of his tenant caused by want of repairs if he would not have been liable had the accident happened to the tenant under similar circumstances.
    3. Landlord and tenant, § 250

      —duty of owner to public to Jceep building in repair. The owner of a building owes a duty to the public to keep it in such repair that it will not injure persons rightfully on the premises, but this is to be distinguished from his duty to his tenant.
    4. Appeal and error, § 1775

      —when judgment on proof of immaterial averments of facts cannot be sustained. Neither plaintiff nor defendant is entitled to judgment in his favor on proof of immaterial averments of facts, even after verdict in his favor, however mach such facts may have been contested on the trial.
    Appeal from the Circuit Court of Henry county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Jay L. Spaulding and George S. Skinner, for appellant; Duncan, Doyle & O’Conor, of counsel.
    John T. Cummings and Anderson & Andrews, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the' court.

This is the second appeal of this case. Our former opinion reversing and remanding is reported in 168 111. App. 362. On retrial there was a verdict and judgment against J. H. Dole Company for $7,895.83, from which it appeals. The jury found the codefendant, McSpadden, not guilty. The pleadings are the same as at the former trial. There is little if any dispute about the controlling facts. The question of law presented is whether a landlord renting an old defective building is liable for injuries resulting to the servant of the tenant from weakness and defects of the building that were as well known to the tenant as to the landlord at the time of the leasing. It is common knowledge that in this country there are many old frame buildings, houses, barns, sheds, warehouses and shops much weakened by age and hard usage that are occupied by tenants, the defects and weakness of the building obvious and it cannot be foreseen what particular timber may break or nail or bolt loosen under a strain, but constant care and watchfulness is required to keep the structure safe. Does the landlord leasing such a building with no agreement to repair owe a duty to laborers and servants of the tenant to make the building reasonably safe at the time of the leasing, is the controlling question in this case.

It appears that appellant on July 1,1907, was and for several years had been the owner of an old frame grain elevator building located at Kewanee, Illinois, and on that day it leased the same to Samuel W. McSpadden, who had then been in possession of the premises one year as the tenant of appellant. The building was about one hundred feet long and twenty-four feet wide and had stood there fifty years, apparently in constant use for the purpose for which it was built. The partitions separating the different grain bins had become weakened by age and from constant wearing as the bins on either side were alternately emptied and filled. Appellee’s counsel well say in their brief: “It is common knowledge that wooden buildings used as this one was, fall into decay and that repairs are frequently necessary to keep them in a condition of safety and fit for use. * * * The whole structure had the appearance of an old building, as well it might from its fifty years standing. The cleats constantly came off, indicating the general rickety state of the joists and the whole partition. * * * The vibrating and weaving motion of years had loosened and drawn the nails, the loosened timber was worn round at the bottom where it had turned upon the plate upon which it rested. When the comers had been rounded off sufficiently and the nails were drawn, so that they no longer held the timber fast to the plate upon which it rested, the timber slipped over the retaining block which was only two inches in thickness. This caused the top of the partition, which was composed of the two planks spiked together, to spread apart—the north timber against which the studding pressed spread toward the north, away from the south timber, which still remained in its place. Thus the fall of the partition was begun. * * * It was the comer where the cleats constantly became loosened, and leaks were caused to come, that necessitated frequent examination and constant repair. * * * The loosening of the cleats was notice to everybody about the premises that the partition was rickety and that its fastenings were loose, defective and liable to break.” In short this was an old frame building weakened by age, incapable of bearing the strain of a newer building, but still capable of use if the occupant adjusted its burden to its perfectly apparent weakened condition and was diligent in patching up the various breaks from time to time occasioned.

On September 12, 1907, Wilbur Barrett, appellee’s intestate, then in the employ of the tenant McSpadden, for whom he had been at work about the premises for several months, on the order of McSpadden’s foreman went into a bin to shovel out some corn, and while there the pressure from an adjoining full bin broke loose the old defective partition above described, projecting it and the shelled com back of it on to Barrett, causing his death. Some of the standards to which boards were nailed came loose from their fastenings because of their weakened and decayed condition and because they were then subjected to an extraordinary strain by the overloading of the adjoining bins with shelled corn.

It is not claimed that these partitions were improperly built; they seem to have stood there many years and served the purpose for which they were constructed. Neither is it claimed that any act of appellant in building, repairing or attempting to repair caused the injury, nor that the tenant McSpadden was ignorant of the condition. On the contrary, it is argued by appellee that the tenant was well aware of the defective condition, and it clearly appears from the evidence that at the time of the leasing, as well as at the time of the accident, the tenant was much more familiar with the actual condition of the premises than was appellant, his landlord.

It appears from our former opinion that there was some question raised whether appellant’s association with the business of his tenant, McSpadden, was such that he might be liable because of such connection with the business. There is no ground for that contention on this record, and counsel for appellee now say there is no claim that the lease created a partnership between appellant and McSpadden or that McSpadden was in the employ of appellant. We therefore need not further refer to that question. There is nothing peculiar about the lease that is claimed to affect the question here. There is an express provision that McSpadden, the tenant, shall keep the premises in good repair and the right reserved to appellant to enter the premises for purposes of inspection .and making alterations and repairs if it should see fit so to do. It does not appear that appellant made any repairs and we do not see that these provisions affect its liability.

It is not claimed that appellant had any connection with the accident and injury other than its relation to the property as landlord, under the written lease to McSpadden. There is nothing in the record pointing to any duty of appellant to deceased, or any act of appellant performed or omitted that could have any bearing on liability for his death, other than this written lease and the necessary and natural acts performed under its terms and provisions.

The case must be distinguished from those dealing with the duty of the landlord to persons other than the tenant, his servants and guests, rightfully on the demised premises. The owner of a building owes a duty to the public to keep it in such repair that it will not injure persons rightfully on the premises, and this is to be distinguished from his duty to his tenant. Note to McConnell v. Lemley, 34 L. R. A. 609; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210; Tomle v. Hampton, 28 Ill. App. 142; Everett v. Foley, 132 Ill. App. 438, 142 Ill. App. 250. This distinction is pointed out by the text writers and discussed in many reported cases. It must also be distinguished from those in which the landlord retains possession and control of a part of the premises and injury results to the tenant from want of repair of the part so retained by the landlord, as in Glickauf v. Maurer, 75 Ill. 289; and from cases in which the landlord rents different portions of the building to different tenants, leaving himself under obligation to keep the approaches and common hallways in a safe condition; and from those in which there is a hidden defect in the building known or presumed to be known by the landlord, and not known or presumed to be known by the tenant, as in case of a defectively hung chandelier put in by the landlord. Reichenbacher v. Pahmeyer, 8 Ill. App. 217. Cases have frequently arisen where a dwelling house was infected by disease germs or poisoned by noxious gasses, and such condition known to the landlord and not known to the tenant. In this class of cases the landlord is under the duty to inform the tenant of such concealed danger, and is liable for injuries resulting to the tenant, his family and servants from a failure to perform that duty. 24 Cyc. 1114, and cases cited in note 51.

The question presented here is one of duty of the landlord to the servant of his tenant, under a letting in which the tenant at the time of making the lease had at least an equal opportunity with the landlord to know any defective condition of the premises and expressly stipulated in the lease that he would keep the premises in repair. There is no claim that appellant actually knew of the worn condition of the particular standard that broke loose causing the collapse of the partition, and in view of the fact that the tenant McSpadden had been in possession of the premises a year before the lease in question was executed, doing a similar business under a similar lease, there is no room for inference or argument that appellant should be charged with more knowledge of that defective condition than should be the tenant himself.

There is no question but the duty of appellant was the same to deceased, the servant of the tenant, as it was to the tenant himself. Appellant is not liable in this case if it would not have been liable had the accident happened to the tenant McSpadden under similar circumstances. Sunasack v. Morey, 196 Ill. 569; Morgan v. Sheppard, 156 Ala. 403; Potter v. Hourigan, 146 Iowa 73; Coats v. Meriwether, 144 Mo. App. 89; Baker v. Moeller, 52 Wash. 605; 24 Cyc. 1119, n. 67; and notes in 34 L. R. A. 609.

The tenant McSpadden had been in possession a year before the execution ef the lease in question. Appellant had not beén in possession except through tenants for some years, if ever. Was it under any duty to McSpadden to search for worn timbers and loose nails and repair or replace the same, before executing f.ln's renewal lease ? An examination of the authorities leads conclusively to the answer that it was not under any such duty. In Sunasack v. Morey, supra, the Court said: “The law is well settled that the rule of caveat emptor applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant. The tenant takes the premises as he finds them, subject to Ms own risk, and there is no implied covenant on the part of the landlord that they are fit for habitation or fit for the purposes for which they are rented, or that they are in any particular condition. The landlord is therefore not liable for damages resulting to the tenant by reason of the demised premises being out of repair, unless he has expressly bound Mmself to make repairs by the terms of the contract to let. Where, however, there are concealed defects in the demised premises, attended with danger to an occupant, which a careful examination would not disclose but which are known to the landlord, the latter is under obligation, imposed upon him by law, to reveal them to the tenant in order that he may guard against them, and upon the landlord’s failure to perform such duty he will become liable for whatever damages actually result to the tenant therefrom. 1 Thompson’s Commentaries on the Law of Negligence, secs. 1129-1131; 18 Am. & Eng. Encyc. of Law (2d Ed.) p. 224; 2 Wood on Landlord and Tenant, sec. 381.” In Borggard v. Gale, 205 Ill. 511, the same Court speaking through the same justice, after referring to the SunasacJc case, supra, said: “The duty resting upon the landlord to notify the tenant of a defect in the premises which a careful examination' would not disclose, but of which the landlord has notice while the tenant has not, we think may well be placed upon the ground, in many cases, that a failure to make such disclosure would be a fraud upon the tenant.”. And the Court adds that all the authorities seem to require that the defect must be latent, that the landlord had notice, and the tenant had not such notice, and the landlord concealed the defect by failing to notify the tenant of its presence. The above two cases seem to us controlling on the question before us. Many eases involving similar questions have been decided and reported in other States and there is little conflict of authority, if the distinctions of different classes of cases heretofore pointed out are observed. The following from 18 Am. & Eng. Enoyc. of fjaw (2d Ed.) p. 215, has been often quoted and approved in opinions of the courts: “At common law it was the well settled rule that, in the absence of any agreement between the parties, the landlord was under no obligation to his tenant to keep the demised premises in repair. The rule of caveat emptor applies in regard to leases, and the landlord is not even under an implied obligation to remedy defects in the demised premises existing at the time of the demise. It follows, therefore, that, in the absence of any agreement on the part of the landlord to repair, a tenant cannot recover from the landlord the costs of the repairs made by him, nor can the tenant recover from the landlord for injuries to his property or person, or to the property or person of his family, caused by the defective condition of the demised premises.

The Court in Morgan v. Sheppard, supra, quotes the above and cites Taylor on Landlord and Tenant and says: “When the premises are out of repair at the time of letting, in particulars which the landlord is bound as regards third persons not to allow, the landlord is liable for injuries sustained by a third person from such want of repair. The reason for the rule seems to be that in such case the dangerous condition of the premises constitutes a nuisance and the liability of the landlord results from leasing premises upon which a nuisance exists. * * * The rule however of the liability of the landlord for renting premises in such a dangerous condition as to constitute a nuisance does not exist in favor of the tenant, his servants, guests, or others, entering under his title (citing authorities). As to them in the absence of covenant to repair he is only liable for injuries resulting from latent defects known to him at the time of the leasing and which he conceals from the tenant. * * * If the defect is obvious at the time of the letting the tenant takes the possession of premises as he found them and the landlord would not be liable for injuries resulting from said obvious defects to the tenant, his family, servants or guests,” citing authorities, among them Sunasack v. Morey, supra.

Numerous cases and statements of text writers can readily be found illustrating this doctrine of concealed defects and consequent fraud of the landlord on the tenant, and the distinction between his duties to his tenant and his duties to the public; but we have referred to enough of them for an understanding of the rule. Our conclusion is that appellant, as landlord, was under no contractual duty to keep the partition in question safe, and cannot be charged with fraud in concealing defects because such defects were as well known to the tenant, McSpadden, as to the landlord, or if the particular defect was not known to either of them the tenant at and before the time of leasing had not only an equal opportunity, but in fact a much better opportunity than the landlord, to discover the worn condition of the timbers and rusty condition of the nails. Therefore, appellant is not liable for the death of appellee’s intestate, the servant of the tenant, on the uncontroverted facts of the case, because if it would not have been liable under similar circumstances to the tenant himself it is not liable to his servant.

It is said that this is an action for a wrongful act or omission to act, and that authorities on the duty of the landlord to his tenant and his family and servants by reason of the relation of landlord and tenant do not apply. The authorities cited and relied on in this opinion are as to the duty of the owner of a building, to the public, to persons rightfully on the premises, and to his tenants under the different conditions above pointed out; not merely his duty express or implied, under his contract of leasing. We understand these authorities mean that the owner of a building is under no duty to his tenant, or the servant of his tenant engaged about the demised premises, to make the premises, at the time of leasing, safe from obvipus defects arising, from age and use as well known to the tenant as to himself. If there is no duty there is no liability.

Many other questions arising on the pleadings, evidence, instructions and arguments of counsel on the trial in the court below are argued, but it is unnecessary to consider or decide them. The codefendant, McSpadden, was found not guilty, and no appeal is prosecuted or error assigned on that finding or the judgment that followed it as to him; therefore the question of his liability is not before us.

Counsel for appellee urge with much earnestness that as they have tried issues presented by the pleadings and treated by this court in its former opinion as controlling, it is presumed to follow that appellant is estopped to deny that proof of facts so litigated creates a liability. Neither a plaintiff nor defendant is entitled to judgment in his favor on proof of immaterial averments of facts, even after a verdict in his favor, however much such facts may have been contested on the trial. Woods v. Hynes, 2 Ill. (1 Scam.) 103.

No liability can be created by pleading and proving facts that as matter of law create no liability. But where a case has been tried mainly or in large part on an issue that the court deems immaterial, it should not be disposed of without affording the parties an opportunity to present and try material issues, unless it appears with great certainty that the record of another trial could not change the result. We will not say that such change cannot be made in this case; therefore the judgment will be reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Henry E. Jacobs, State’s Attorney et al., Appellant, v. The Citizens Telephone Company of Pekin, Illinois, Appellee.
    Gen. No. 5,825.
    1. Quo wabbanto, § 57

      —when corporate existence of respondent cannot be questioned on review. Where on information in the nature of a quo warranto a telephone company was brought into court by its corporate name, and the company so appeared and pleaded, its corporate existence cannot be questioned in the Appellate Court.
    2. Quo wabbanto, § 46

      —when plea need not allege that respondent’s grantor was a de jure corporation. Where on information in the nature of a quo warranto charging a telephone company with using the streets and alleys without warrant or authority, respondent Company filed pleas alleging it exercised its right as grantee of another corporation, held that it was immaterial whether the pleas alleged that respondent’s grantor was a de jure corporation, that such corporation was not a party to the suit, and the validity of its charter could not be questioned in a collateral proceeding.
    3. Telegbaphs and telephones, § 7

      —when telephone company cannot be ousted of its privilege to use streets and alleys. A corporation duly authorized by its charter to transact a telephone business and having for five years conducted that business in compliance with the terms of an ordinance of a city, with acquiescence of the city authorities, cannot be ousted of its privilege to use the streets and alleys of the city because its grantor may not have been a de jure corporation.
    Appeal from the Circuit Court of Marshall county; the Hon. Theodoee N. Gbeen, Judge, presiding.
    Heard in this court at the June term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Henry E. Jacobs and Homer Barney, for appellant; Barnes & Magoon, of counsel.
    E. D. Richmond and Page, Wead, Hunter & Scully, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

In January, 1912, appellant, the State’s Attorney of Marshall county, filed an information in the nature of a quo warranto on the relation of the mayor and aider-man of the city of Lacón in said county against appellee, The Citizens Telephone Company of Pekin, Illinois, charging that appellee was conducting a telephone system in said city of Lacón, setting poles, stringing wires, etc., in the streets and alleys of said city and doing other business usual to such companies, without warrant or authority.

The information avers that appellee is an Illinois corporation. Summons was issued and served on it in that character and it appeared as a corporation and pleaded in justification an ordinance of said city of Lacón passed in February, 1902, granting to one J. C. Mead, his associates, successors and assigns, authority to construct and operate a telephone system in said city of Lacón under certain conditions therein expressed ; an acceptance of said ordinance by J. O. Mead and assignment of his rights thereunder to the Pekin Telephone Company, an Illinois corporation, in February, 1902, and an assignment by the Pekin Telephone Company to appellee in July, 1907; and that under the terms and provisions of said ordinance, J. C. Mead and his successors and assigns, as above named, constructed and have operated a telephone system in said city of Lacón continuously since December, 1902; that appellee has operated the same continuously since the date of said assignment to it, setting out in detail acts usual to such service and averring strict compliance with said ordinance and acquiescence of said city in what had been done in construction and operation of said system.

The pleas contain recitals of the organization of appellee corporation, also of its grantor, the Pekin Telephone Company corporation, but do not in terms aver that the final certificate of incorporation in either case was filed for record within two years from the date of license in the county where the principal office was located.

A demurrer to the pleas was overruled and judgment entered against appellant, who brings the case herd for review, and on errors assigned argues that the demurrer should have been sustained because he says the pleas fail to show said filing for record of the final certificate of either corporation and are therefore bad.

Appellant having brought apppellee into court by its corporate name and appellee having so appeared and plead, its corporate existence cannot be here questioned. North & South Rolling Stock Co. v. People ex rel. Schaefer, 147 Ill. 234; People ex rel. City of Pontiac v. Central Union Tel. Co., 192 Ill. 307. The remaining question is whether a corporation duly authorized by its charter to transact the business in question and having for five years conducted that business in compliance with the terms of an ordinance of the city, with the acquiescence of the city authorities, can be ousted of its privilege to use the streets and alleys of the city because its grantor may not have been a de jure corporation.

We are of the opinion that it is immaterial whether the pleas be read as alleging that appellee’s grantor was a de jure corporation. This is certainly a collateral proceeding so far as the validity of the charter of the Pekin Telephone Company is concerned; if was not a party to this suit. The validity of its charter cannot be here questioned. Gilmer Creamery Ass’n v. Quentin, 142 Ill. App. 448, and cases there cited. Even had it appeared by the pleadings that the Pekin Telephone Company failed to file for record its final certificate within the time limited, still the title of appellee to its property and its license could not in this proceeding be questioned on that ground; a de facto corporation can acquire and convey property. The pleas set out in detail facts showing the usual construction of a telephone system and extensions from time to time. The result of a judgment for appellant would be the destruction of appellee’s property rights which, under the facts plead, the city should be estopped from doing.

The judgment is affirmed.

Affirmed.


text:
    Arnold Seghetti by Adolph Seghetti, Plaintiff in Error, v. B. F. Berry Coal Company, Defendant in Error.
    Gen. No. 5,827.
    1. Mines and minerals, § 141

      —sufficiency of declaration in suit by a minor employe for injuries. In an action against a coal mining company for injuries sustained by a minor employe while engaged in working in a mine, a general demurrer to five counts in the declaration held improperly sustained as to four of the counts and properly sustained as to the other.
    2. Mines and minerals, § 143

      —when declaration sufficient on general demurrer. In an action to recover for injuries sustained by an employe in a mine, a count in the declaration is not bad for failure to show that plaintiff was in the place in question, at the time in question, in the discharge of his duty to the defendant.
    3. Mines and minerals, § 730

      —right to recover damages for violation of statute requiring certificate of employes. Section 6 of the Act of 1908 as amended in 1909, J. & A. ¶ 7525, providing that no person shall be engaged as a miner who has not obtained a certificate of competency and qualification, does not provide for a recovery of damages resulting from its violation.
    4. Negligence, § 8

      —when violation of statute imposing a duty is actionable negligence. The violation of a statute imposing a duty is actionable negligence on the same principle that the omission of a duty otherwise imposed may be a ground of action; but the duty imposed must be for the benefit of the person injured and there must be a causal relation between the act and the injury.
    Error to the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.

      J. L. Murphy, for plaintiff in error.
    McDougall, Chapman & Bayne, for defendant in error; Mastin & Sherlock, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Arnold Seghetti, plaintiff in error, sued B. F. Berry Coal Company, defendant in error, to recover for injuries received as a miner in the defendant’s coal mine and filed a declaration containing five counts. A general demurrer to the declaration and each count thereof was sustained and final judgment against plaintiff followed to review which this writ of error prosecuted.

The first count described the' mine in which plaintiff was employed by defendant and the place therein where he worked, mining into a wall of coal in front of him about forty feet across, and avers there was a similar working place at plaintiff’s left occupied by two miners, to him unknown; that the last mentioned working place had long been and was out of repair; no timbers, props, etc., had been provided there by the defendant for those two men to secure it; roof and coal were unpropped, unspragged and unsecured from falling. That plaintiff in the line of his duty and in order to avoid falls, slips and other dangers that might occur in his own place had frequently to go into said defective room. That plaintiff was in his seventeenth year, inexperienced in the work and in the manner of saving himself from danger. That the men that worked in said defective room were inexperienced, reckless and negligent and used to keep their said room in a dangerous condition so that the coal was liable to fall on any person that entered that room there. That defendant had notice for a long time of all said matters and plaintiff knew of none of them, and could not in the exercise of reasonable care have known of any of them, in time to avoid the injury complained of. That the defendant failed to instruct plaintiff how to avoid danger, failed to cause a conspicuous mark or other signal to be displayed thereat and allowed the other conditions aforesaid. And while the plaintiff in -the exercise of reasonable care for his safety, and in the line of his duty, was rightfully in said defective working place where he had gone to avoid a fall and danger that was threatening him, and that he reasonably apprehended might occur at his own place, he was unavoidably, and without his fault, caught and crushed under a great fall of coal that fell, because of the reasons aforesaid, and sustained injuries, etc. This count seems to us a sufficient statement of a common-law cause of action. Some of the allegations of negligence are based on violation of the statute, but it is framed as a common-law count and may well be based on the violation of a duty imposed by statute. The second, third and fourth counts are in general description like the first, and charge, specifically, wilful violations by the defendant of provisions of the Miners’ Act, ch. 93, R. S. (J. & A. ¶¶ 7475 el seq.) and resulting injury, and do not allege due care on the part of the plaintiff, which is not necessary in a count framed under that act. Each of these counts in our opinion states a cause of action. It is argued that each count fails to show that plaintiff was in the place in question, at the time in question, in the discharge of his duty to the defendant. It is true that fact must be shown, and we think it does sufficiently appear, and no count is, on general demurrer, bad in that respect under the principles announced in discussions of that question in the case of Mackey v. Northern Milling Co., 210 Ill. 115, and later cases citing and following that case. Whether any of the counts are bad for duplicity is not a question that arises on general demurrer. Holmes v. Chicago & A. R. Co., 94 Ill. 439.

The fifth count charges, as negligence of the defendant, a violation of the Statute of 1908 as amended in 1909. Hurd’s R. S. ch. 93 (J. & A. ¶¶ 7520 et seq.). Among the purposes of the act, recited in the title, is: ‘To provide for the safety of persons employed in and about coal mines;” and it is provided in section 6 (J. & A. ¶ 7525) of the Act: “That no person shall hereafter engage as a miner in any coal mine without having obtained such certificate as aforesaid (a certificate of competency and qualification). And no person shall employ any person as a miner who does not hold such certificate as aforesaid, and no mine foreman or superintendent shall permit or suffer any person to be employed under him, or in the mines under his charge and supervision as a miner except as herein provided, who does not hold such certificate. Any person or persons who shall violate or fail to comply with the provisions of this Act shall be guilty of a misdemeanor, and on conviction thereof shall be sentenced to pay a fine of not less than one hundred dollars and not more than five hundred dollars, or shall undergo imprisonment in the county jail for a term of not less than thirty days and not to exceed six months, or both, at the discretion of the court. ’ ’ The act does not provide for a recovery of damages resulting from its violation.

The violation of a statute imposing a duty is actionable negligence on the same principle that the omission of duty otherwise imposed may be a ground of action; but the duty imposed must be for the benefit of the person injured and there must be a causal relation between the act and the injury. See authorities cited in 29 Cyc. page 436, and following pages; and Gibson v. Leonard, 143 Ill. 182; Williams v. Chicago & A. R. Co., 135 Ill. 491; and Paietta v. Illinois Zinc Co., 153 Ill. App. 506. There is a manifest distinction and difference between statutes that do and do not provide for the recovery of damages for injuries resulting from their violation. There is a line of cases, beginning with Strafford v. Republic Iron & Steel Co., 238 Ill. 371, affirming 142 Ill. App. 461, down to Purtell v. Phila delphia Coal Co., 256 Ill. 110, holding that one whc^ contrary to the statute, employs a child at a prohibited: employment is liable for resulting injuries and that' neither contributory negligence nor disobedience of orders is a defense; that the liability results from the violation of the act, though not expressly declared in the statute, and that it is immaterial that the child represented at the time of his employment that he was over the prescribed age, the Court saying in Beauchamp v. Sturges & Burn Mfg. Co., 250 Ill. 303: “The law is, that if the appellant employed the appellee in violation of the statute it is liable if he was injured while in such employment. ’ ’ In the same case the Court holds, on the authority of American Car & Foundry Co. v. Armentraut, 214 Ill. 509, that it was immaterial that the child represented to his employer at the time of the hiring that he was over seventeen years old; but recognizes the doctrine that the law will not permit a plaintiff to recover where his own unlawful act concurs in causing the injury of which he complains, and said it did not apply because the statute in question was aimed at the master and not the servant; that the act of the child in accepting employment was not unlawful. The statute in question in the case at bar is aimed at both the master and the servant, therefore the reason for the rule announced in the Armentraut case, supra, at least in part failed.

The only purpose this fifth count serves is to raise the question whether plaintiff can rely on the violation of this statute by the defendant as a ground of negligence on which this action can be maintained. It is not alleged that the violation was wilful and not alleged in this count that plaintiff is a minor, therefore the question is presented whether an adult can on that ground sustain an action for negligence resulting in his injury. No authority is presented sustaining such a position and we know of none, and it seems to us on principle that an adult competent to contract and responsible for his own acts should not be permitted to compel another to respond to him in damages for an injury resulting from a negligent act that required his co-operation, and in the performance of which he is equally guilty. The violation of a duty imposed by statute is well recognized in this State as supporting the defense of contributory negligence, if it in fact contributed to the injury. The pleader in this count intends to charge a common-law liability arising from the violation of this statute by the defendant, which violation is proof of negligence. The count necessarily contains the averment of due care on the part of plaintiff. If the violation of this statute is negligence, causing or contributing to the injury in question, then plaintiff on his own showing was guilty of contributory negligence.

We hold the demurrer was improperly sustained to each of the first four counts, and properly sustained to the fifth count.

The judgment is therefore reversed and the case remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    Roger C. Sullivan, Plaintiff in Error, v. Illinois Publishing & Printing Company, Defendant in Error.
    Gen. No. 5,831.
    (Not to be reported in full.)
    Error to the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjsh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Cas®.
    Action for libel by Roger O. Sullivan against Illinois Publishing and Printing Company, a corporation, William Randolph Hearst and Andrew M. Lawrence. The individual members were not found and service was had upon an agent of the defendant corporation. An amended declaration was filed to which a demurrer was sustained followed by a judgment for the defendant corporation. To reverse the judgment, plaintiff brings error.
    The declaration alleged that plaintiff was injured in his reputation and good name by a certain libelous publication concerning plaintiff in a newspaper, to wit, Chicago Examiner. The publication read in the light of the averments in the declaration was to the effect that there had been a prolonged heated contest in the legislature over the election of a United States senator; that a Republican, William Lorimer, had been elected by the aid of votes of Democratic members; that bribery of these members had been charged and some of them had been indicted on that charge; that plaintiff was a leader in the Democratic party and had used his power and influence to procure for the successful candidate the votes of members controlled by him and was active in procuring bail and counsel for those that had been so indicted; that theretofore he had joined in bipartisan movements in public elections and was a friend of William Lorimer in his election.
    There were six innuendoes in which clauses of the article were charged to mean: That plaintiff had participated in bribing members of the General Assembly; that he had contributed money used to buy the votes of members; that he knew members had been bribed and participated therein; that he knew a certain member was guilty of bribery; that he had engaged an attorney to protect those charged with bribery for the reason that he, himself, had participated in such bribery and feared exposure by those so bribed if he did not assist in defending them.
    Quinn, Quinn & McGrath and Clarence W. Heyl, for plaintiff in error.
    Elwood & Meek and Roy D. Keehn, for defendant in error.

      Abstract of the Decision.
    1. Libel and slander, § 96

      —effect of innuendo. Where by innuendo a particular meaning is ascribed to words, the plaintiff is not at liberty to reject that meaning upon the trial and resort to another. The innuendo gives a character to the libel which becomes a part of the issue.
    2. Libel and slander, § 100

      —when declaration insufficient on demurrer. In an action for libel, where the declaration contained innuendoes charging the article published to mean that plaintiff as a political leader was guilty of bribery and of a guilty connection with an attempt to bribe members of the legislature, held that demurrers to the declaration were properly sustained, that the language of the article could not be reasonably understood as construed by the innuendoes, and that the language was not actionable per se though the innuendoes could be rejected as surplusage, there being no special damage alleged and the words not charged to be published with reference to plaintiff’s calling or trade.
    3. Libel and slander, § 3

      —what to he considered in determining whether language is lihelous. That political leaders are subject to much criticism and ridicule not taken seriously by the reading public should not be lost sight of in determining whether any given article tends to impeach the honesty, integrity, virtue or reputation of such a person, and thereby to expose him to public hatred, contempt, ridicule or financial injury, which it must be held to do to fall within the statutory definition of libel.
    4. Abatement and revival, § 31

      -—sufficiency of plea to jurisdiction of court. In an action against a corporation where service was had upon an agent of the corporation and defendant filed a plea to the jurisdiction of the court averring it was not a resident of the county where served, held that a demurrer to the plea was not improperly sustained; that if the corporation was not doing business in such county and had no office or agent located there and the agent served was there on his own business or pleasure, such fact should have been more specifically pleaded.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    William R. Maxwell et al., Defendants in Error, v. Jacob H. Brown, Plaintiff in Error.
    Gen. No. 5,832.
    1. Contribution, § 2

      —when special pleas demurrable. In an action for contribution to the payment of a promissory note, special pleas setting up a defense of want of consideration for signing the note held demurrable, for the reason that such defense is admissible under the general issue.
    2. Bills and notes, § 430

      —when proof of oral statements at time of execution inadmissible. In a suit for contribution between signers of a promissory note, where the note was made and paid by the plaintiffs before the Negotiable Instrument Act of 1907 was in force, J. & A. Klf 7640 et seg., the defendant cannot avail himself of proof of oral statements made at the time of its execution that no obligation should be incurred by signing it.
    3. Principal and surety, § 98

      —when defense of want of consideration available in suit for contribution. In an action for contribution between the signers of a promissory note, evidence offered by defendant tending to show either that there was no consideration for the plaintiffs’ undertaking or no consideration for his own signing, held admissible.
    4. Principal and surety, § 98

      —admissibility of evidence in suit for contribution. In an action for contribution between signers of a promissory note where plaintiffs had paid the note, evidence offered by defendant to show that plaintiffs had obtained judgment against the principal debtor for the full amount that they had paid, held properly excluded, there being no offer to show that anything had been realized on the judgment.
    Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    H. M. Kelly, for plaintiff in error.
    Butters & Armstrong and McDougall & Chapman, for defendants in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.

The three defendants in error, hereinafter called plaintiffs, sued plaintiff in error, hereinafter called defendant, in assumpsit for contribution to the payment of a promissory note signed by the four parties to this action and paid by the three plaintiffs, and filed a declaration consisting only of the common counts. The defense offered was that the defendant did not sign the note when it was made and signed by the plaintiffs, but did sign it the following June after it had been assigned by the payee, The Illinois Valley Oil Pipe and Line Co., to the National City Bank of Ottawa, the assignee that had demanded and received its payment; that no consideration passed from the Oil Company or the bank to the plaintiffs when they signed the note, and no consideration passed at the time the defendant signed the note; that the defendant and the plaintiffs were advised by an officer of the bank at and before the time of the signing that no liability would arise from signing the note that the bank desired it to show the bank examiners so that it, the bank, would not appear to be carrying so large an obligation of the Oil Company. This defense was set up in special pleas filed with the general issue. Demurrer to the special pleas was sustained and the case was tried before the court and a jury on the issues of fact so presented. Evidence was introduced by the plaintiffs showing the payment by them on August 1, 1905, to the bank of said note, which note was received in evidence and was for the principal sum of $10,000, dated April 1, 1903, payable on demand and indorsed by the payee.

The defendant offered evidence tending to show the defense above indicated, to which objections were sustained by the court and a verdict was directed for the plaintiffs followed by judgment against the defendant for $3,453.87, the full amount claimed. The action of the court in sustaining the demurrer and excluding the testimony so offered by the defendant is assigned as error.

This is not an action on a promissory note, either specially pleaded in the declaration or specially relied on under the common counts, therefore a defense of want of consideration was admissible under the general issue (Clarke v. Newton, 235 Ill. 530); and evidence offered by the defendant tending to show either that there was no consideration for the plaintiffs’ undertaking or no consideration for his own signing should have been admitted.

The note was made and paid by the plaintiffs before our Negotiable Instrument Act of 1907 (J. & A. ¶¶ 7640 et seq.), therefore the obligation of the plaintiffs when they paid it was fixed by the law then in force and the defendant cannot avail himself of proof of oral statements made at the time of its execution that no obligation should be incurred by signing it, as he might have done had it occurred after the act was in force. Straus v. Citizens’ State Bank of Elmhurst, 164 Ill. App. 420, affirmed by the Supreme Court and reported in 254 Ill. 185.

That parol evidence is inadmissible to vary, contradict or explain the terms of a written agreement but is admissible to show a note was given without consideration, had, before the present Negotiable Instrument Act, long been settled law. Penny v. Graves, 12 Ill. 287.

If there was an illegal contract between the payee of the note, the defendant and the bank, that could be shown, if at all, under the general issue. The question is whether the defendant should be permitted to defend on that ground, he being particeps crimims. This question may not arise on another trial, it is not argued here. We will not attempt to forecast the question but will leave it for decision if it does arise when its precise nature appears and there is opportunity for counsel to present authorities.

We are of the opinion that the court committed no error of which the defendant can complain in sustaining the demurrer to the special pleas, because any legitimate defense there pleaded was available under the general issue; that the court did err in refusing defendant’s offer of evidence tending to show either that there was no consideration supporting the apparent obligation of the plaintiffs or of the defendant; that testimony should be permitted of oral statements made at the time of the signing of the note so far as such statements tend to show such consideration or want of consideration. While it is true there need be no consideration moving to the obligor personally, still there must be a consideration to support a promise; and if it be true that the defendant signed the note after it was executed by the plaintiffs and assigned and delivered to the bank, there must have been some consideration to support his undertaking, though not necessarily one moving to him. What the transaction in fact was can be shown by evidence, and then the law may be applied to such conditions as the evidence tends to show.

The defendant also offered evidence to show that the plaintiffs had obtained judgment against the Oil Company, the principal debtor, for the full amount that they, the plaintiffs, had paid. There was no offer to show that anything had been realized on the judgment and no suggestion in argument here of any benefit to the plaintiffs from the judgment, except that they have a lien on all the property of the principal debtor, whatever that may be. It is immaterial in this suit what liens or securities plaintiffs may have obtained if they had not realized on or in some way handled them to the damage of the defendant. He will in an appropriate proceeding be permitted to share in the benefits derivable from such securities if he is held to the payment of a part of the debt, and the court did not err in excluding the part of his defense that was based on that ground.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    D. C. Miller, Appellant, v. Eva S. Liljerstrom, Appellee.
    Gen. No. 5,834.
    (Not to Tbe reported in full.)
    Appeal from the County Court of Knox county; the Hon. R. C. Rice, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action in assumpsit by D. C. Miller against Eva S. Liljerstrom to recover one-half the value of real estate which defendant took as sole devisee named in the will of her father. It appeared that defendant—an uneducated woman, was an illegitimate child and had been living with her father and was recognized and treated as his daughter, and that the father, unfamiliar with business affairs, neglected to make a will in her favor. She discussed the matter with plaintiff, who was an attorney, and he drafted a paper for her father to sign which was entitled “The acknowledging and owning of a child,” but the signature was not obtained. Plaintiff claims that afterwards through a mutual friend he induced the father to make a will leaving his property to defendant and that he had an oral agreement with her that he should receive one-half the value of the property he might thus obtain for her. The jury found for the defendant and judgment was entered on the verdict. From the judgment, plaintiff appeals.
    R. C. Hunt, for appellant.
    Hardy, Welsh & Hardy and E. A. Corbin, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

Attobney and client, § 135 —when evidence insufficient to establish contract for compensation. In an action by an attorney to recover one-half the value of real estate which plaintiff took as devisee in the will of her father, plaintiff claimed he was entitled thereto under an oral contract with defendant that he should receive one-half of defendant’s father’s property he might obtain for her by inducing the father to own that defendant was his child and inducing the father to make a will devising his property to defendant. Held that a verdict for defendant on conflicting evidence whether defendant made such a contract would not be disturbed.


text:
    William Noonen, Appellee, v. Theodore Gebhardt, Appellant.
    Gen. No. 5,838.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by William Noonen against Theodore Gebhardt to recover commissions for selling a farm. From a judgment entered on a verdict for plaintiff, defendant appeals.
    Brooks & Brooks, for appellant.
    N. G. Van Sant and McRoberts, Morgan & Zimmerman, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 88 —when recovery of commissions sustained by the evidence. In an action for commissions for selling a farm, it appeared that defendant had listed his farm with a certain real estate agent who interested the plaintiff, another agent engaged in bringing purchasers of farm lands from other parts of the State, who visited defendant’s farm and plaintiff claimed that while there defendant agreed with him that if he should affect a sale he would allow him anything received in excess of one hundred and twenty-five dollars per acre. The farm was afterwards sold to a purchaser produced by plaintiff for one hundred and thirty-five dollars an acre. Defendant denied that he made any such agreement or any agreement whatever for commissions with plaintiff. Held that a verdict and judgment for plaintiff was sustained by the evidence.

2. Evidence, § 265 —when permitting witness to testify from memorandum not prejudicial. Permitting a witness to testify that a fact of which he spoke was fixed in his mind by his making a written memorandum of it shortly after it occurred, held not prejudicial error where the memorandum was not offered in evidence.

3. Instructions, § 134 —when construed as directing jury to base finding on the evidence. An instruction complained of as failing to direct the jury that their belief must be based on the evidence, held to fall within the rule that “a requirement in the first part of an instruction that the jury must base their findings upon the evidence applies and extends to all subsequent clauses in the instruction, and it is unnecessary in each of the succeeding sections to inform the jury that they must find from a preponderance of the evidence.”

4. Appear and error, § 450 —when objection to admission of evidence not preserved. Admission of incompetent evidence, without objection, cannot be complained of on appeal.

5. Appear and error, § 1507 —•when compelling answer on cross-examination not prejudicial. In an action for commissions on a sale of a farm, held not harmful error to require defendant, on cross-examination, to answer whether he listed his farm with other agents to be sold for a certain price where he denied that he did so.


text:
    C. V. O’Connor, Appellee, v. P. R. Kennedy, Appellant.
    Gen. No. 5,853.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Boone county; the Hon. Chabres H. Donnerly, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by C. Y. 0 ’Connor against P. B. Kennedy to recover commission for selling a farm. It appeared that defendant sold a farm to a certain person and the plaintiff had some connection with the negotiations between defendant and the purchaser. The plaintiff claimed that he secured the purchaser and that defendant promised him a commission. From a judgment entered, on a verdict in favor of plaintiff for $608.54, defendant appeals.
    Charles W. Ferguson and James M. Huff, for appellant.
    William L. Pierce and Alexander J. Strom, for appellee.
    Abstract of the Decision. 1. Brokers, § 27

      —right of person not a real estate agent to commissions. The fact that a person is not a real estate agent but engaged in other business does not affect his right to recover a commission for the sale of a farm, if he at the instance of the owner procured a purchaser. 2. Brokers, § 84

      —admissibility of evidence. In an action for commissions on the sale of a farm, admission in evidence of attempts by the defendant to sell the farm through other agents and of prices named by him and commissions offered, held prejudicial where it so appeared that the sale in question was a good one and more advantageous than would have been a sale under his former proposals; and the fact that defendant’s counsel in his opening statement to the jury and the plaintiff as a witness referred to the employment of other agents, held not to warrant admission of the evidence. 3. Instructions, § 89

      —when ignoring number of witnesses in determining preponderance of evidence not prejudicial. The giving of an instruction: “That the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side, does not necessarily, alone determine that the preponderance of the evidence is on the side for which the larger number testified. In order to determine that question, the jury must be influenced by and take into consideration the appearance and conduct of the witnesses while testifying; their apparent intelligence, or lack of it; their opportunity of knowing or seeing the fact, or subject concerning which they have testified, or the absence of such opportunity; their interest or absence of interest in the result of the case, and from all these facts as shown by the evidence, the jury must decide upon which side is the preponderance,” held not reversible error for improperly excluding the factor of the number of witnesses.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Bertha Martukis by Eugene Martukis, Appellee, v. Ferdinand P. Keyt, Appellant.
    Gen. No. 5,854.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Bertha Martukis by Eugene Martukis, as her next friend, against Ferdinand P. Keyt to recover for injuries sustained by plaintiff, a girl sixteen years old, by being struck by a taxicab owned by the defendant while she was endeavoring to cross a street after alighting from a street car. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.
    Charles W. Ferguson, for appellant.
    David D. Madden, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and gabages, § 3 —when finding of jury as to contributory negligence controlling. In an action for injuries sustained by plaintiff by being struck by a taxicab owned by defendant while plaintiff was attempting to cross a street, a verdict for plaintiff held controlling on the question whether plaintiff was guilty of contributory negligence, though it appeared from the record that the accident might have been caused by the combined negligence of the plaintiff and the driver of the car.

2. Instructions, § 94 —when instruction to disregard testimony of witness inaccurately worded. The giving of an instruction: “The court instructs the jury as a matter of law that if you believe from the evidence that any of the witnesses have wilfully testified falsely to any material fact in evidence then you will be entitled to entirely disregard any of the evidence of this witness in so far as his testimony is not corroborated by other competent evidence,” held reversible error, in that the instruction uses the word “competent” instead of the word “credible” or other words of like import.


text:
    Annie Jopp et al., Appellees, v. R. H. Fairburn and Fortune Bros. Brewing Company, Appellants.
    Gen. No. 5,858.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Annie Jopp and others against R. H. Fair-burn and Fortune Bros. Brewing Company under section 9 of the Dramshop Act, J. & A. ¶ 4609, to recover damages for injuries to plaintiffs ’ means of support by reason of the death of Barthomic Jopp, husband of Anna Jopp, alleged to have been caused by intoxicating liquors sold to him by Fairburn in a building owned by the- Brewing Company. From a judgment entered on a verdict in favor of plaintiff against both defendants for thirteen hundred dollars, defendant Brewing Company alone appeals.
    For decision in this case on a former appeal, see Jopp v. Fairburn, 157 Ill. App. 609.
    A. F. Beaubien, for appellant Fortune Bros. Brewing Company.
    E. V. Orvis, for appellees; Cooke, Pope & Pope, of counsel.
    Abstract of the Decision.
    Intoxicating liqtjobs, § 230

      —when judgment for loss of means of support sustained by the evidence. In an action by a widow and children against a saloon keeper, and a brewing company as owner of the building, to recover damages for loss of means of support under section 9 of the Dramshop Act, J. & A. ¶ 4609, on account of the sale of intoxicating liquors to the husband, held that a judgment against the defendants was sustained by evidence showing that the brewing company was owner of the building and had knowledge that intoxicating liquors were sold there.
    Whitney, P. J., took no part in this decision.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    A. F. Brya, Appellee, v. James L. Thomas, Appellant.
    Gen. No. 5,861.
    1. Vendor and fubchaser, § 327

      —when purchaser entitled to earnest money for failure of vendor to furnish sufficient abstract. In an action against a vendor to recover earnest money paid under a written contract for a conveyance of land in which the vendor agreed to furnish on a certain date a complete abstract of title certified by a competent abstractor, showing a merchantable title in himself, provided if there appeared to be material defects he should have a reasonable time to clear the title and be entitled to prosecute a suit for such purpose if necessary, held that the purchaser was entitled "to recover the earnest money paid with interest, for the reason that the defendant failed to perform the contract by tendering an abstract showing a merchantable title.
    2. Venue, § 4

      —when defendant properly found in county for purpose of process. Where a person in obedience to a subpoena issued in a certain suit goes to a county other than his residence and while there is served with a summons in another case, held that in the absence of fraud, artifice or trick on the part of plaintiff or some one acting for him in order to obtain the service, such person was properly found in such county within the meaning of the statute.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putekbaush, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    0’Harra, O’Harra, Wood & Walker and Jack, Irwin, Jack & Miles, for appellant.
    Dobbins & Dobbins and Barnes & Burke, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

July 24, 1905, appellant, James L. Thomas, and appellee, A. "F. Brya, entered into a written contract providing for the conveyance by appellant to appellee of the northeast quarter and the east 62 acres of the northwest quarter of section 18, township 3 north, range 6 west of the fourth principal meridian in Hancock county, Illinois, on March 1, 1906, for a consideration of $22,422. Appellant agreed to furnish on or before September 1,1905, a complete abstract of title certified by a competent abstracter, showing a merchantable title in himself, provided if there appeared material defects he should have a reasonable time to clear the title, and if a proceeding in court for that purpose should be necessary he should have the opportunity and option to begin and prosecute a suit before the sale should be void. Appellee paid $1,200 on the purchase price and agreed to pay the balance March 1, 1906, on the delivery of the deed. There was a provision for forfeiture of $1,200 by either party failing to perform his part of the contract. September 10, 1905, appellant submitted an abstract, which in the opinion of appellee’s attorney did not show a merchantable title, and they pointed out various alleged defects. December 10, 1905, appellant again tendered the abstract revised and supplemented, showing that several of the defects complained of arose from mistakes of the abstracter, and on January 2, 1906, appellee’s attorneys refused to pass the title, and on January 6th notified appellant’s attorney that because of failure to furnish abstract as provided in the contract appellee had elected to declare the contract at an end. The Circuit Court of Hancock county had regular terms in October, March and June. Appellant, after receiving this notice of January 6th, filed a bill to the March term to correct the title, and at that term filed an amendment, making additional parties defendant, and at the June term obtained a decree; and July 26, 1906, again tendered the abstract supplemented, it is said, to cover that decree, with deed of the premises, and demanded full payment of the balance of the purchase price. Appellee refused. ¡

This suit was brought by appellee to recover the $1,200 paid on the purchase price with interest thereon; and on a trial before the court without a jury appellee had judgment for $1,620, being the full amount with interest at five per cent, from July 26, 1906, the date of the tender of the deed and the last abstract. The abstract of record filed here does not show the supplement to the abstract of title tendered July 26th. It is said that it was an abstract of the same record shown here. If we assume it was substantially the same abstract, then it showed a defect of title arising from the fact that the northwest quarter section contained 211.86 acres instead of 160 acres, and in the chain of title it appeared that the owner of the quarter section at one time conveyed 100 acres off the north side, and after-wards conveyed the south half of the quarter, leaving a strip extending through the tract from east to west not covered by either conveyance. Appellant’s record title to the east 62 acres of the quarter section was traced through these conveyances and rested on the assumption of a mistake of the scrivener in making the second deed, above mentioned, which should have described that part of the quarter section not conveyed by the first deed. One purpose of the proceeding in court was to correct this mistake and misdescriptions appearing in subsequent deeds because of this misdescription. Various parties to those deeds were brought into court and a decree entered reforming the deeds. In the chain of title so sought to be corrected were deeds to and from John G. Weaver, each of which deeds the court found contained mistaken descriptions that should be reformed, and entered a decree accordingly, but before the decree was entered the cause was dismissed as to John C. Weaver, which of course left that part of the decree entirely void as to him. There are many other alleged defects in the title as shown by the last amended abstract, but this was the most serious one. Other necessary defendants were in court on service by publication only, and as to them the decree may be said to be insufficient under the authority of Smith v. Hunter, 241 Ill. 514, because of their right to come in later and petition to open the decree.

We are of the opinion that the title of appellant was so materially defective at the date of the contract as to be unmerchantable; that this should have been known by appellant at least by September 1, 1905, when he agreed to furnish appellee the abstract; that the defects were of such a character that he should have known a proceeding in court was necessary to make the title merchantable; that he could and should have filed a bill for that purpose to the October term of court; that failing to do that he should, in Ms bill filed to the March term, have made all necessary parties; having failed to do this he should not complain if appellee was disinclined to take the title and possession July 26th instead of the first of March. It is argued that even if the title was defective as to a small portion of the land, still under the authority of D’Wolf v. Pratt, 42 Ill. 198, and Towner v. Tickner, 112 Ill. 217, appellee should have taken it and deducted a proper amount from the purchase price for the land to which the title was defective. There is nothing in the record showing the relative value of that portion of the land, and there was no offer by appellant to accept anything short of full payment of the purchase price. We do not regard the case within the rule announced in those two cases. It is argued that appellee wrongfully repudiated the contract before March 1, 1906; therefore appellant was excused from tendering performance on that date and might treat the contract as still in force and tender the deed and abstract in a reasonable time. If this be conceded, still, as we have said, the abstract did not show a title in compliance with the contract, and it is common knowledge that midsummer is not the season when it is practicable to exchange possession of farm lands.

We are of the opinion that the trial court did not err in holding that appellant had failed to perform his part of the contract, and that the decision would be correct if it rests entirely on the ground that the abstract tendered with the deed on July 26, 1906, did not show a merchantable title in appellant.

Error is assigned on the action of the court in allowing interest on the amount claimed. Treat v. Smith, 139 Ill. App. 262, affirmed by the Supreme Court in 234 Ill. 552, is authority for the position that appellee was entitled to interest from the time when appellant refused to perform the contract.

We are of the opinion that the trial court did not err in finding that appellant, in effect, so refused on July 26, 1906, when the last abstract was tendered, and allowing interest from that date.

Appellant was not a resident of Peoria county at the time of service of summons on him in this case but was only there in obedience to a subpoena issued in another case, with which appellee, the plaintiff here, had no connection, and while so involuntarily there he was served with summons in this case, and by proper plea he raised the question whether under those circumstances he was, as matter of law, found in Peoria county. A demurrer to this plea was sustained and he assigns error.

Whatever may be the holdings in other jurisdictions, it is settled law in this State that in the absence of fraud, artifice or trick on the part of appellee or some one acting for him, in order to obtain the service in question, appellant was properly found in Peoria county within the meaning of the statute. Willard v. Zehr, 215 Ill. 148, and authorities there cited. Therefore the court did not err in sustaining the demurrer to the plea.

The judgment is affirmed.

Affirmed.


text:
    Amie I. Adams, Appellant, v. John Gordon, Appellee.
    Gen. No. 5,866.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Chakles Whitney, Judge, presiding. Transferred to Supreme Court.
    Heard in this court at the October term, 1913.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Bill by Amie I. Adams against J ohn Gordon praying for an injunction restraining defendant from interfering with her use of a path and well, claiming an easement therein,' It appeared that defendant owned a tract of land and conveyed a portion of the same to complainant’s grantor, whose contract of sale gave him the right to nse a well and its appurtenances and a path not exceeding eight feet in width leading to the well located on that part of the defendant’s tract not sold, until such time as public water should be laid and installed in an adjoining public street or highway. The conveyance to' complainant was by an ordinary warranty deed with no recital of easements or appurtenances. A demurrer was filed to complainant’s bill, the demurrer was sustained and on complainant electing to stand by her bill the bill was dismissed for want of equity. To reverse the decree, complainant appeals.
    Shepard, McCormick & Thomasson, John D. Pope, and Perry S. Patterson, for appellant.
    E. L. Clarke, for appellee.
    Abstract of the Decision.
    Appeal and error, § 155

      —when, suit concerning an easement involves a freehold. On appeal from a decree dismissing a bill to restrain defendant from interfering with the use of a well and pathway on defendant’s land, where the bill alleged that complainant’s grantor granted such easement until public water should be laid in an adjoining street, held that the interest complainant was contending for was an easement for an indefinite time, which may be forever or may be during the life, of the complainant, and therefore a freehold requiring an appeal to be taken to the Supreme Court.
    Whitney, P. J., took no part in this decision.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Axel W. Nelson, Appellee, v. City of Rockford, Appellant.
    Gen. No. 5,869.
    1. Municipal coepobations, § 1098

      —when recovery for damages to traction engine resulting from defective bridge is warranted. In an action against a city for injury to a traction engine resulting from a defective bridge, held that the jury were warranted in finding that driving the engine on the bridge was not an extraordinary use of the bridge and that plaintiff was in the exercise of due care in driving his engine upon it.
    2. Municipal coepobations, § 1071

      —when person may assume bridge is reasonably safe. A municipal corporation must keep pace with the reasonable necessities of the public in the various occupations pursued in that locality in the care of its streets and bridges, and a party attempting to cross a bridge has a right to assume that it is reasonably safe for the accommodation of the public at large in the various occupations pursued in the locality where the bridge is situated, in the absence of notice to the contrary or facts sufficient to put him on inquiry.
    3. Municipal coepobations, § 1100

      —when refusal of requested instructions not error. In an action against a city for injury to a traction engine resulting from a defective bridge, refusal of instructions requested by defendant submitting the question of fact whether the load put upon the bridge by plaintiff was unreasonable or extraordinary, held not reversible error where there was no ground for the contention that the load was extraordinary aud unreasonable.
    4. Municipal coepobations, § 1101

      —when instruction as to liability for damages resulting from defective bridge proper. In ani action against a city for injury to a traction engine owing to a defective bridge and instruction given for defendant that the city was bound only to use reasonable care to keep its bridges in a reasonably safe condition for people using them when exercising ordinary care, and if plaintiff did not use reasonable care and prudence in going upon and attempting to cross the bridge he Could not recover, held to fairly inform the jury of the law applicable to the evidence.
    Appeal from the Circuit Court of Winnebago county; the Hon. Abthub H. Fbost, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      David D. Madden and Charles W. Ferguson, for appellant.
    J. E. Goembel and Walter E. Healy, for appellee; G. R. Beverly, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Axel W. Nelson, was driving a traction engine with accompaniments over the Ninth street bridge in the City of Boclcford, when the bridge gave way and the engine was injured. This action was brought against the City to recover for that injury and there was a verdict and judgment for seven hundred dollars for plaintiff. The City appeals and confines its argument here to the propositions:

That appellee in driving his engine upon the bridge did not exercise ordinary care and caution for the safety of his engine.

That the trial court, erred in refusing to give appellant’s instructions numbered five and seven.

The law is that a municipal corporation must keep pace with the reasonable necessities of the public in the various occupations pursued in that locality in the care of its streets and bridges, and that a party attempting to cross a bridge has the right to assume that it is reasonably safe for the accommodation of the public at large in the various occupations pursued in the locality where the bridge is situated in the absence of notice to the contrary or facts sufficient to put him on inquiry. Molway v. City of Chicago, 239 Ill. 486; Anderson v. City of St. Cloud, 79 Minn. 88; Kovarik v. Saline County, 86 Neb. 440; Central City v. Marquis, 75 Neb. 233; Bonebrake v. Board Com’rs Huntington County, 141 Ind. 62.

The proof shows that the use of traction engines had been common in that locality for more than twenty years before the accident, and that the City itself had for a number of years used two traction engines, each weighing more, and one of them much more, than that of appellee’s; also that shortly before the accident appellee was advised by the city engineer, who by ordinance was charged with the duty of inspecting bridges and closing them when unsafe for public use, to take Ninth street and cross this bridge with his engine in preference to crossing other bridges that might be used in proceeding in that direction. And it does not appear that there was any defect in the bridge that would be noticed in the exercise of such care as is ordinarily used by those traveling public streets and highways. Therefore it seems plain that the jury were warranted in finding that it was not an extraordinary use of the bridge and that appellee was in the exercise of due care in driving his engine upon it.

Refused instruction number five read: “If you believe from the evidence that the use, by the plaintiff, of the bridge in question at the time in question was an extraordinary use of said bridge or such a use that the City in the exercise of reasonable care to keep its bridges in a reasonably safe condition for the use of persons exercising ordinary care for their own safety, could not have anticipated or should not be required to anticipate then you are instructed that you should find the defendant not guilty. ’ ’ And the seventh read: “If you believe from the evidence that the use, by the plaintiff, of the bridge in question at the time in question in the manner in question in this suit was an unreasonable use of said bridge then you are instructed there can be no recovery in this case and you should find the defendant not guilty, provided you further believe from the evidence that said bridge at the time in question was in a reasonably safe condition for the use of persons when exercising reasonable care and caution for their own safety and for the safety of their property.”

These instructions submitted the question of fact whether the load put upon the bridge by appellee was unreasonable or extraordinary, and were probably suggested by the ease of Seyfer v. Otoe County, 66 Neb. 566, where such an instruction was held properly given; but in that case there was ground for contention that the load was extraordinary and unreasonable, the bridge was on a country highway and there was evidence that the plaintiff carried planks to use in crossing-such bridges, which he did not use at the time in question. It might be inferred that such loads were not common enough there to be anticipated and provided for by the public authorities. But in this case it is shown, not only by evidence of witnesses but by stipulation of counsel, that such loads were common in that locality and had been for years. The bridge was not on a little-used country highway, but was on a street in a large city, and there is little room for argument or inference that the load should be held unusual or extraordinary at that time and place, and if it was the City could not well rely on that defense in the face of the fact that it had, through its agent, advised appellee to use the bridge.

The jury were advised by appellant’s given instructions that the City was bound only to use reasonable care to keep its bridges in a reasonably safe condition for people using- them when exercising ordinary care, and if appellee did not use reasonable care and prudence in going upon and attempting to cross the bridge, he could not recover. We are of the opinion that defendant’s instructions given fairly informed the jury of the law applicable to the evidence, and that there was no reversible error in refusing its fifth and seventh instruction offered.

The judgment is affirmed.

Affirmed.