text:
    John H. Henderson, Appellee, v. Ross W. Gould, Appellant.
    Gen. No. 5,128.
    1. Agency—when exclusion of evidence tending to show termination of, error. Held, that the exclusion of an endorsement contained upon a contract in connection with the admission of certain other evidence was erroneous in that the effect was to lead the jury to believe that the agency in question existed contrary to the contention that it had been terminated at a particular time, which was material to the determination of the cause.
    2. Agency—persons dealing with agent hound to ascertain authority. Held, that it was error in this case to refuse an instruction upon the proposition that those dealing with an agent are bound to ascertain the extent of his authority, if any.
    Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Searle & Marshall, for appellant.
    Peek & Dietz, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

John H. Henderson, appellee, brought this suit in assumpsit in the Circuit Court of Bock Island county against Boss W. Gould, appellant, to recover the purchase price of certain real estate owned by appeUant and alleged by appellee to have been sold to him by one Bush, as agent of appellant. The declaration contained the common counts and a special count. The special count alleged that through Bush, Gould sold appellee certain real estate for $400 and that appellee paid Gould through Bush, the sum of $400 and that appellant, through Bush, agreed to deliver to appellee an abstract and a deed of said real estate, and averred a breach of such agreement. Appellant filed the general issue. There was a trial and a verdict for appellee for $429.27. A motion for a new trial was denied, judgment was entered on the verdict and Gould prosecutes this appeal.

The evidence shows that on June 7, 1904, appellant gave Goodmanson & Bush the exclusive agency of the sale of certain lots in Columbia park and Bosslyn’s addition east of the city of Moline, south of Third avenue, reserving only a privilege of sale of the lots therein enumerated by his father, D. W. Gould. This agency was in writing and was to terminate March 1, 1905, unless the said agents should in the meantime sell six lots, in which case, appellant was to extend the contract for one year. In August, 1904, Goodmanson & Bush dissolved partnership. September 5, 1904, Goodmanson, Bush and appellant met and agreed that Goodmanson should surrender to Bush all his interest in said agency contract, and that Bush should continue the agency under its terms, which he did until February, 18,1905, when the contract was returned to appellant by Bush. In the latter part of August, 1905, Bush went to appellee and represented himself to be appellant’s agent for the sale of his lots in Columbia park addition, and on September 4, 1905, induced appellee to contract for the purchase of one of appellant’s lots and to pay him on said contract $400 for which he gave a receipt signed in his own name, and agreed to build a house on the lot to be completed in five weeks, at which time appellee was to receive an abstract and deed to the real estate. Appellee testified that Bush said that the property belonged to appellant, and that about September 16, 1905, he had a talk with appellant, in which appellant said that Bush represented him as his agent and had skipped out with some of his money. Appellant said “You bought some property of Bush”, to which appellee replied that he had, and said, “He is your agent”, and appellant replied that he was. Some talk was then had between them about having Bush arrested in order to get back the money. Appellee further testified that he bought the lot subject to the sign standing on the lot south of the one he bought. The sign read, “Goodmanson & Bush, Lots for Sale,” and he said to appellant, “This sign makes bim your agent.” A careful inspection of the evidence discloses that appellee bases his right to a recovery, not upon the authority to Goodmanson & Bush by virtue of the contract from appellant, but upon appellant’s alleged admissions subsequent to the transaction he had with Bush. Appellant testified that he met appellee and told bim that he had heard that he had had some transactions with a man by the name of Bush in regard to some lots in Columbia park addition. He said he had. Appellant asked the nature of it and appellee said he had bought a lot there from Bush, and that Fuller and Stritmeyer had also bought lots there. Appellant told appellee that Bush had no authority either to sell lots or to collect money for them; that Bush was not his agent and that he could not be responsible for the money paid him. In a later conversation, appellant told appellee that the lot stood bim $275 and if he would pay appellant that amount, he would give appellee a deed to the lot.

On proof of the signature of Bush the following endorsement appearing on the back of the contract of June 7, 1904, was offered in evidence:

“Feby 18, ’05
Beturned as requested G. C. Bush.”

On objection of appellee, the court refused to admit it. As the proof showed that there had been an agency in writing between Bush and appellant, it was competent to show that it had been terminated before the transaction between appellee and Bush. There was evidence admitted on appellee’s offer, of a sale made to one Van Araman subsequent to the alleged abrogation of the contract. Appellant moved to strike out the evidence relating to the Van Araman sale which motion was denied by the court. This evidence was incompetent because it was not shown that appellee had any knowledge of this transaction prior to his deal with Bnsh nor was it shown that appellant had any knowledge of Bush’s connection with the Van Ara-man transaction, as appellant acted in this sale entirely through D. W. Gould, his father. The effect of this evidence, with the evidence of the abrogation of the written contract excluded, may have led the jury to believe that Bush was still acting under the authority of the contract of June 7, 1904, at the time of the alleged sale to appellee.

In view of the conflict in the testimony as to Bush’s authority to represent appellant, it was important that the jury be accurately instructed as to the law. Appellant asked and the court refused an instruction which told the jury, that, when one deals with an agent, he is bound to know the agent’s authority and cannot hold the principal for the unauthorized acts of the agent, and that unless they believed from a preponderance of the evidence, that Bush was, on the 4th of September, 1904, the duly constituted agent of appellant, to sell the lot in question and to receive the purchase price of the same, their verdict should be for appellant. The proof disclosed that appellee’s authority to sell the lots was at least debatable and his authority to receive the purchase price pointedly disputed. In Short v. Kieffer, 142 Ill. 258, it is said: “It is well understood that one purchasing land from an agent is bound to see the authority of the agent, and know that he is acting within the scope of his authority.” It is, therefore, clear that the instruction contained a correct principle of law and that there was evidence on which to base it; therefore its refusal was error.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Highland Park State Bank, Appellee, v. John H. Sheahen, Appellant.
    Gen. No. 5,105.
    1. Pleading—when action of court in sustaining demurrer to pleas immaterial. The action of the court in sustaining demurrers to special pleas is immaterial, if under the general issue the defendant has been permitted to introduce all the evidence which he could have introduced under such pleas had no demurrer been sustained thereto.
    2. Suretyship—what does not discharge surety. The fact that the principal maker of a note payable to a bank has funds deposited in such bank after the maturity of the note and before suit thereon, exceeding the sum due, and that such bank does not appropriate the same to its payment, does not discharge the surety.
    3. Suretyship—when extension discharges surety. If a creditor by a valid agreement, without the assent of the surety, gives further time to the principal debtor, the surety will be discharged, but to discharge the surety such an agreement must put it out of the power of the holder of the note to enforce the same during the period of forbearance agreed upon. To discharge the surety such an extension must be based upon a new and valid consideration.
    4. Suretyship—what consideration sufficient to support extension which will discharge surety. The payment of legal interest on a debt in advance is a sufficient consideration to support an agreement for an extension of the time of payment and such payment of interest by the principal is, by itself, sufficient prima facie evidence to extend the time of payment, and works a discharge of the surety. However, the mere payment of a part of the principal actually due, or all the interest actually due, will not constitute such new contract with a sufficient consideration; there must be an acual intention of both parties to extend the time of payment and an intention to pay and receive the consideration therefor.
    Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    E. S. Gail, for appellant; Leslie A. Needham, of counsel.
    Bowen W. Schumacker, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Highland Park State Bank, appellee, commenced this suit in assumpsit in the Circuit Court of Lake county on July 11,1907, against Swan H. Petterson and John H. Sheahen, appellant, to recover the amount claimed to be due on a promissory note in the words and figures following:

“No. 2752 $800.00.
Highland Park, III. Apr. 12, 1906.

On demand after date I promise to pay to the order of the Highland Park State Bank Eight Hundred Dollars, with interest at seven per cent per annum after date at the office of said bank. Value received. In case of the insolvency of the undersigned any indebtedness due from the legal holder hereof to the undersigned may be appropriated and applied hereon at any time, as well before as after the maturity hereof.

Swan H. Petterson.
John H. Sheahen.”

On the back of said note were endorsed twelve monthly interest payments; the first dated May 5,1906, and the last April 30, 1907, showing that the interest on said note was paid to May 1, 1907. Twenty-five dollars was endorsed on the principal, April 5, 1907.

The declaration filed July 30, 1907, contained a special count of payee v. maker, and the common counts. Swan H. Petterson was adjudicated a bankrupt, September 28, 1907. On November 8, 1907, the United States District Court enjoined appellee from proceeding further with this suit against Petterson. On October 16,1908, John H. Sheahen, appellant, filed the plea of the general issue, a verified plea denying joint liability with said Petterson, and five special pleas, designated as three, four, five, six and seven. A demurrer was sustained to the third, fourth, sixth and seventh pleas. The third plea alleged that the note was made and delivered to appellee by Petterson as principal debtor and appellant Sheahen as surety for said Petterson for six months and that on October 12, 1906, appellee, at the request of Petterson, in consideration of the promise of monthly payments of interest upon the principal sum of said note, and payment of interest upon said principal sum remaining due from time to time until the whole of said principal sum should be paid together with the interest thereon, appellee agreed with said Petterson to and did renew said note from month to month without the knowledge or consent of appellant, and that said Petterson thereafter became bankrupt, whereby appellant was discharged from liability as such surety. The fourth plea was substantially like the third, though less in detail. The fifth plea alleged that Petterson had an insurance of $1,500 on a stock of goods, and that on May 21, 1907, he sustained a loss of his stock of goods by fire, whereby the insurance company became liable to pay him said sum, and that thereafter Petterson, at the request of appellee, sold and delivered to appellee his claim for damages in payment of said note, and that thereby appellant was released from liability on said note. The sixth plea alleged that appellee, at the time of the making and delivery of said note, was conducting a bank in the city of Highland Park; that said Petterson deposited funds therein from the time of making said note until about June, 1907, and that said Petterson became insolvent and thereafter had $800 deposited in appellee’s bank, and that appellee agreed to apply the amount so deposited on the payment of said note as provided by its terms, and that appellee neglected and failed to apply such deposits in payment of such note, whereby appellant was released as surety on said note. The seventh plea alleged that appellee failed to make demand or collect said note within a reasonable time, and that Pettersonu thereafter became bankrupt, and that thereby appellant was released as surety on said note. Issues were joined on the similiters tendered by the first and second pleas and by appellee’s replication to the fifth plea. There was a trial before the court without a jury. Judgment was rendered in favor of appellee for $667.45 and costs, and Sheahen prosecutes this appeal.

It is immaterial whether the demurrer was properly sustained or not for the reason that the record discloses that appellant was permitted to introduce wider the general issue all evidence offered tending to establish his release from liability on the note on account of the extension alleged in the third and fourth pleas.. However, the authorities hereinafter cited justify the action of the court in sustaining the demurrer to the third and fourth pleas» As appellant makes no point in argument on the ruling of the court in sustaining the demurrer to the sixth and seventh pleas, the propriety of that ruling will not be considered.

It appears from the evidence that Petterson had a deposit account in appellee’s bank varying in amount from time to time. Appellant contends that the money on deposit to the credit of Petterson in appellee’s bank should have been applied in payment of the note. We are of the opinion that, while by the terms of the note, appellee might have applied the money in its bank belonging to either the principal maker or surety, to its payment, yet appellee’s failure so to do with money belonging to the principal did not discharge the surety. The fact that the principal maker in a note payable to a bank has funds deposited in the bank after the maturity of the note and before suit on the note, exceeding the sum due thereon, and. that the bank does not appropriate the same to its payment, does not discharge the sureties. Voss v. German American Bank, 83 Ill. 599.

One Holmes, in charge of the collection of interest in appellant’s bank, testified that it was appellee’s custom to collect interest on all its demand notes at the end of each month; that he would, without consulting the maker of a note who had money on deposit, draw a debit slip for the amount of the interest for that month, charge it against the maker’s account, endorse the amount on the note, and return the slip to the maker with his checks. All the payments of interest endorsed on this note were made in that way. Petterson did not make any payment of interest, nor draw any of the debit slips, nor was he consulted as to any of the endorsements.

The vital question for our consideration here is, was there an agreement, based upon a valuable consideration, for an extension of the time of payment of the note without the consent of the surety? It is true that some of the endorsements were made a few days before the interest was due and if the proof had shown that Petterson had paid to appellee interest in advance, in consideration of which, appellee had agreed to extend the time of payment of the note for a given period without the consent of appellant, appellant would have been released from liability. The law is, that if a creditor by a valid agreement, without the assent of the surety, gives further time to the principal debtor, the surety will be discharged. Dodgson v. Henderson, 113 Ill. 360; Price v. Dime Savings Bank, 124 Ill. 317; Heenan v. Howard, 81 Ill. App. 629. But to discharge the surety, such an agreement must put it out of the power of a holder of the note to enforce the note during the period of forbearance agreed upon. To discharge the surety it must be based upon a new and valid consideration. Gardner v. Watson, 13 Ill. 347. The payment of legal interest on a debt in advance is a sufficient consideration to support an agreement for an extension of the time of payment and such payment of interest by the principal is, of itself, sufficient prima facie evidence to extend the time of payment, and works a discharge of the surety. English v. Landon, 181 Ill. 614. However the mere payment of a part of the principal actually due, or all the interest actually due, will not constitute such new contract with a sufficient consideration. There must be an actual intention of both parties to extend the time of payment and an intention to pay and receive the consideration therefor. English v. Landon, supra.

Holmes testified that in order to get his work done by the end of the month, he drew the debit slips not later than the last day, and sometimes five or ten days before the end of the month. He also denied having any conversation with Petterson with reference to granting an extension of time on this note. Petterson testified that he asked for time and that Holmes said to let it go as it had. This was the only conversation relative to the extension of the note. The endorsements do not represent any payments voluntarily made by Petterson, nor does the conversation had between the creditor and the principal debtor show an agreement for the extension of payment, nor does the evidence show that Petterson paid to appellee interest in advance, in consideration of which, appellee agreed to extend the time of payment for a given period. There is no evidence in this record showing an extension of time for the payment of the note for a specified period for a specified consideration mutually binding on both parties. There is, in this record, no evidence which would have precluded appellee from bringing suit at any time on demand for its payment and having a recovery by reason of anything shown in the way of an extension for a valuable consideration.

We therefore conclude, that there was no expressed or implied agreement made for the extension of the time of payment of the note, and the judgment is therefore affirmed.

Affirmed.


text:
    Josephine Zimmerman, Appellant, v. John Zimmerman, Appellee.
    Gen. No. 5,112.
    1. Divorce—when decree may properly deprive wife of property interests. If a decree of divorce is awarded because of the adultery of the wife, it is not improper for the court to enter a decree extinguishing her interest in property which had been purchased with the money of the husband.
    2. Divorce—how proof of adultery may be made. The offense of adultery may be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy; it is not necessary to prove the direct fact of adultery; the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion.
    3. Evidence—effect of failure to call witness. When neither party to a civil suit calls an available witness, whatever presumptions will be indulged from the failure to call such witness, will be against the party to whose interests such witness would most likely incline.
    4. Appeals and errors—when findings of chancellor not disturbed. The findings of fact by a chancellor will not be disturbed on review unless it is apparent that error has been committed.
    Divorce. Appeal from the Circuit Court of Will county; the Hon. Dobrance Dibell, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    E. Meers, for appellant.
    J. J. Wellnitz and J. W. D’Arcy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit for divorce brought by Josephine Zimmerman, appellant, against John Zimmerman, appellee, December 6, 1907, in the Circuit Court of Will county. The bill charged that appellee had been guilty of habitual drunkenness for more than two years theretofore, and of extreme and repeated cruelty toward complainant, and prayed for a divorce. Appellee filed an answer denying these charges, and, on leave of court, filed a cross bill, in which he charged that complainant had, since July 19, 1906, frequently committed adultery with one Charles Krieger, and prayed for a divorce. The complainant answered the cross-bill, denying the charges therein. A trial before the court resulted in a decree dismissing the original bill for want of equity, and granting the complainant in the cross-bill a decree of divorce on the ground of adultery, and ordering that he should have the care, custody, control and education of the four minor children free from interference upon the part of appellant, and that he should have exclusive control, possession and ownership of certain real estate therein described. The complainant in the original bill prosecutes this appeal.

Appellant contends that the trial court was not justified under the evidence in denying the prayer of the original bill and also that the charges of adultery made in the cross-bill were not sustained by a preponderance of the testimony and further that the decree was inequitable because appellant was deprived of her interest in the property and prevented from living with or visiting her minor children at their home.

The proof shows that the property was purchased with appellee’s money, and that the title was in him. If the decree is maintainable under the evidence, there was no error in extinguishing appellant’s statutory rights to the property. That portion of the order relating to the custody of the children is ambulatory and can be changed on application to the lower court as conditions vary.

Appellant testified, in support of the allegation in the original bill, that appellee was drunk most of the time. In this she was not corroborated, but on the contrary, five witnesses, all but one of whom had known appellee about fifteen years, two of whom had resided near him, and one who worked with him, and another under whose supervision he had worked, all testified that they had never seen him intoxicated. These witnesses were not interested in the result of the suit, neither was their credibility questioned. Appellant admitted, on cross-examination, that appellee never lost a day’s work on account of being intoxicated. Therefore it is clear that the evidence did not establish the allegation that appellee had been an habitual drunkard for more than two years prior to the filing of the bill. Neither was there a preponderance of evidence to sustain the charge of extreme and repeated cruelty, and none whatever of any cruelty for more than two years prior to the filing of the bill.

The vital question is, did the court err in sustaining the charge of adultery laid in the cross-bill? The evidence does not show a direct act of adultery, but, “The offense of adultery may be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy. It is not necessary to prove the direct fact of adultery. The fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion. It has been said that ‘the only general rule that can be laid down upon that subject is, that the circumstances must be such, as would lead the general discretion of a reasonable and just man to the conclusion. ’ ” Stiles v. Stiles, 167 Ill. 576; Heyman v. Heyman, 210 Ill. 524.

It appears from the proof, that, for some time, appellee had complained of appellant’s actions in associating with Krieger the co-respondent, who was a widower and a saloon keeper; that he went to Krieger and begged him to leave his wife alone, and that Krieger threatened to shoot him. A woman, who rented a room to Krieger, testified that he had some woman there almost every night for two months and that she saw through the key hole a woman on the bed with him, and that they conversed in the Kocheverish language which appellant and Krieger spoke. Appellant later scolded the witness and threatened her with a law suit if she said she was the woman. Appellant and Krieger were seen holding hands on the public street and to enter a saloon through an alley. She was seen to visit Krieger’s saloon and was seen at a theater with him. It was also shown that she talked frequently over the ’phone to him. Appellee worked nights much of the time and Krieger was seen entering the Zimmerman home after midnight with a cap pulled over his eyes, while Zimmerman was at work, and was there many times in the day time when only appellant and her small children were at home. They were seen sitting in the swing in her yard together, and to go into the barn where they staid for an hour. Krieger’s sister testified that appellant was at the opening of her brother’s saloon, and that he and she went away together; and that appellant often came to his restaurant. Appellant admitted that she met him and went to a restaurant with him, and that she, at another time, visited the theater with him, and at another time walked down the street with him a couple of blocks, and that Krieger came to the house a few times, but she said there were other people there. She admitted that she called him on the telephone, but only once, and then to inquire about her husband. She denied that she had been guilty of adultery with Krieger, and stated that she had had no regard for her husband for two years, and that she had had nothing to do with him for that time. Appellee testified that he had had nothing to do with any woman except his wife, and that in July, 1906, he contracted a venereal disease from her, and gave the name of the doctor who treated him. He also testified that appellant had had nothing to do with him for a year. Appellant denied that she had a venereal disease but did not call the doctor referred to by appellee. Krieger was neither called as a witness nor was any explanation given for not calling him. This is a civil suit, and while he might have been called by either party his interest would make him a much more willing witness for appellant than for appellee, and if there is any inference to be drawn from such failure to testify, it is against appellant. East St. Louis Connecting Ry. Co. v. Altgen, 112 Ill. App. 471; Chicago & Western Indiana R. R. Co. v. Newell, 113 Ill. App. 263.

Krieger and appellant were both experienced in life and marital affairs, and to say they were together from good motives would be unwarranted by the evidence.

This evidence was heard in open court, and while conflicting in some of the grave particulars, the conflict arises almost entirely from the contradictory statements of the parties litigant. The chancellor saw them and heard them testify and was in a position to judge of their credibility better than we are, from reading their evidence as it appears in the record. Under such circumstances, a court of review will not disturb the finding of the chancellor unless it is apparent that error has been committed. Dowie v. Driscoll, 203 Ill. 480. In Biggerstaff v. Biggerstaff, 180 Ill. 407, it is said, “The law is established in this state that where a cause is heard by the chancellor, and the evidence is all, or partly oral, it must appear that there is clear and palpable error before a reversal will be had.” In this case, no such error appears to have been committed by the trial court in making its findings, and, as the chancellor heard and saw the witnesses, not only upon the charge of adultery preferred by the cross-bill, but upon the charges of intoxication and cruelty laid in the original bill, we are unable to say that his conclusions are not correct and supported by the evidence. Where the testimony is conflicting and the conclusions to be drawn from it depend largely upon the credit which should be accorded to the different witnesses and to the weight and value of their testimony, and where the chancellor has a superior opportunity for forming an opinion as to the relative weight and merit of the testimony given by the several witnesses whom he sees, and whose testimony he hears, his finding will not be reversed where it appears, as it does here, that he has not clearly and unmistakably fallen into error. Arnold v. Northwestern Telephone Co., 199 Ill. 201; Heyman v. Heyman, supra.

The decree of the lower court is affirmed.

Affirmed.

Mr. Justice Dibell having presided at the trial of this case, took no part in its consideration here.


text:
    Thomas Bayliff, Appellee, v. Thomas Reilly, Appellant.
    Gen. No. 5,114.
    1. Mandamus—when clerical error in judgment not fatal. A clerical error in the judgment rendered in a mandamus proceeding is not fatal.
    2. Mandamus—when petition sufficiently shows lawful appointment as village treasurer. Held, that the petition for mandamus filed in this cause, when tested by general demurrer, sufficiently showed the appointment of the relator as village treasurer.
    3. Mandamus—when does not lie. Mandamus does not lie to try the title to a public office.
    4. Mandamus—when evidence not required to authorize judgment. If a demurrer to a petition for mandamus is filed and overruled and abided by, the allegations of such petition thereby stand admitted and if sufficient upon which to predicate a judgment, a judgment may properly be rendered without the hearing of evidence.
    5. Pleading—what not reached by general demurrer. The conclusions of law stated in a pleading are not reached by general demurrer.
    Mandamus. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.

      Jambs J. Conway, for appellant.
    S. P. Prescott and J. L. Spaulding, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is a suit commenced by Thomas BaylifE, appellee, against Thomas Reilly, appellant, for a writ of mandamus, requiring appellant, as former treasurer of the village of Cherry, Bureau county, Illinois, to deliver to appellee, the present treasurer of said village, the moneys, funds, vouchers, papers, warrants, property, books and effects belonging to said village, appertaining to said treasurer’s office. The petition sets up the ordinances of the village, providing for the appointment of certain of its officers, including treasurer, and averred that appellant was appointed treasurer of said village on the last Monday of April, 1907, and that he qualified as treasurer of said village, and assumed and continued to hold office until April 27, 1908, at which time appellee was, by the president and board of trustees at a regular meeting of said board, duly and legally appointed village treasurer of said village of Cherry for the ensuing year, according to and in conformity with the ordinances of said village of Cherry; and that appellee duly qualified as such village treasurer by taking the oath of office and giving bonds as required by the ordinances of said village. The ordinances required that all outgoing officers of the village should turn over to their successors in office all property, books and effects belonging to the village or pertaining to their offices. The petition further averred that appellant had, in his possession, when his term of office as such treasurer expired, all of the money, vouchers, funds, books, papers and warrants belonging to the said village, pertaining to the office of said village treasurer, and that after appellee had qualified and assumed the duties of the office of treasurer, he demanded of appellant all the funds, books, papers, warrants and property belonging to said village and pertaining to the office of village treasurer, and that appellant refused to deliver the same to appellee. To the petition appellant interposed a general demurrer, which was overruled, and appellant elected to abide by his demurrer. Judgment was entered against appellant for costs, and a peremptory writ of mandamus was ordered, and Reilly, the former treasurer, appeals.

The judgment described appellee as village trustee, instead of treasurer. There is nothing in the record to show that appellee was or ever had been, village “trustee” and it is evident that the word “trustee” in the judgment was, through a clerical error, written where it was intended to write the word “treasurer.” As the order directed that the property belonging to the village, appertaining to the treasurer’s office, be turned over to the appellee, naming him, and as the pleadings show the party named to be the village treasurer, this clerical mistake does not, in our opinion, amount to a fatal error.

Appellant contends that appellee’s averment that at the meeting on April 27, 1908, at which the president was present and presided appellee was duly and legally appointed to the office of village treasurer of said village of Cherry for the ensuing year, according to, and in conformity with, said ordinances of said village, is but a conclusion of law, and argues that from aught appearing in the petition, the president of the board might not have been present when appellee’s name was presented, that there might not have been a quorum present at the time it was presented, and that, therefore, his appointment might not have been legal; and claims that the petition should have averred that the president of the board was present, the number of trustees present, who made the motion to appoint appellee treasurer, who seconded the motion, and how many voted for him, so that the court could see that the president was present and that a quorum was present and that a majority voted to appoint him; and from this argues that the petition was defective and that the demurrer should have been sustained.

There are, we think, two answers to this contention of appellant: First, The demurrer was general only. The rule is familiar, that a demurrer admits all facts properly pleaded. Newell v. Bureau Co., 37 Ill. 253; Deem v. Crume, 46 id. 69; Arenz v. Weir, 89 id. 25; Greig v. Russell, 115 id. 483. “For the purposes of pleading, the ultimate fact to be proven need only be stated. The circumstances which tend to prove the ultimate fact can be used for the purposes of evidence, but they have no place in the pleadings.” McAllister v. Kuhn, 96 U. S. 87; Indianapolis R. R. Co. v. Horst, 93 U. S. 291; Lavin v. Wis. Cent. R. R. Co., 54 Ill. App. 636. If, as appellant argues, the petition was defective in that it did not show a legal appointment of appellee as treasurer and the defect had been pointed out by special demurrer or if it was necessary, as appellant contends, that the petition state that the president of the board and a sufficient number of trustees were present to form a quorum, and that it was necessary to show how the different trustees voted, and this had been pointed out by special demurrer, the petition would, no doubt, have been amended.

Second. This was not a proceeding in quo warranto to try the title to appellee’s office. If it were mandamus would not lie. McKean v. Gauthier, 132 Ill. App. 376. The petition avers that appellee is in the office and discharging its duties. He brings this suit in his official character to recover certain property that belongs to the village and appertains to his office. We are, therefore, of the opinion that he is not obliged to set out his title to the office with that particularity which would be required of him if the title to the office was being litigated. We, therefore, conclude that the petition is good when attacked by a general demurrer only.

Appellant also contends that judgment, ordering the property turned over to appellee, could not properly follow, on the court sustaining the demurrer, without appellee’s offering proof to show that appellant had the money, funds, books, property and vouchers in his possession. The petition alleged that appellant had in his possession, books, vouchers, property and moneys belonging to said village and that he had since the 27th day of April, 1908, wrongfully received and collected large sums of money, which it was his duty to turn over to his successor. The demurrer admits these facts and admits that the ordinance required Tiim to turn them over to his successor. Therefore no proof was necessary to establish the facts so admitted.

The judgment is affirmed.

Affirmed.


author: Me. Justice Willis

text:
    Many, Blanc & Co., Appellee, v. Abraham Jacobson, Appellant.
    Gen. No. 5,087.
    1. Suretyship—extent of liability of guarantor. Where one guarantees the act of another his liability is commensurate with that of his principal and he is no more entitled to notice of default than is such principal; both must take notice at their peril.
    2. Suretyship—when extension does not discharge guarantor. In order that the guarantor may be discharged by an extension of time there must be a binding agreement between the creditor and principal debtor, entered into without the knowledge and consent of the guarantor, founded upon a valuable consideration, for an extension of time for a definite period, whereby the creditor’s hands are tied so that he cannot proceed to collect from the principal until the expiration of the time granted to him.
    3. Evidence—when cross-examination improper. It is proper to sustain an objection to a question upon cross-examination which has no béaring upon a question asked upon direct.

      Assumpsit. Appeal from the County Court of Peoria county; the Hon. Wilbert I. Slemmons, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Ellwood & Meek, for appellant.
    Kora & Boggess, for appellees.
   Me. Justice Willis

delivered the opinion of the court.

Many, Blanc & Co., appellee, brought this suit in assumpsit in the County Court of Peoria county against Abraham Jacobson, appellant, to recover $149.50 due from Largent Bros, on account of merchandise purchased from appellee, the payment of which appellee claims was guaranteed by appellant by the execution of a writing addressed to appellee, the body of which is in the words and figures following:

“In consideration of fourteen dollars and ninety-five cents ($14.95) I herewith guarantee payment of the account of Messrs. Largent Bros., 215 North Washington street, Peoria, Illinois, 'for one hundred forty-nine dollars and fifty cents ($149.50) as they become due; one third in thirty days, one-third in sixty days and one third (%) in ninety days.”

The declaration contained a special and the common counts. The special count alleged the execution of the writen guaranty for the consideration of $14.95 and averred that the sum of $149.50 named therein had become due; the failure of Largent Bros, to pay said sum, and a demand on appellant to pay the same and his refusal. Appellant interposed to such declaration, the plea of non-assumpsit and three special pleas. The first special plea was nul tiel corporation, the second special plea alleged that when the money was due, appellee did not request payment from Largent Bros, and averred that therefore appellant was released. The third special plea alleged that appellee, without the knowledge and consent of appellant, consented that Largent Bros, might have an extension of time in which to pay the sum named, and averred that such extension released appellant from liability. Issues were joined on the general issue and the first special plea and a demurrer was sustained to the second and third special pleas. Appellant elected to abide by the second special plea and obtained leave to amend the third special plea, which, after amendment, alleged that appellee, at the request of Largent Bros, and in consideration that Largent Bros, would purchase all liquors sold by them at retail in the city of Peoria, to the exclusion of all other dealers in wholesale liquors, agreed with said Largent Bros, to give them six months time in which to pay the $149.50; and that said extension was made without the consent of appellant, by reason whereof, appellant was discharged from all liability upon said guaranty. The court sustained a demurrer to this plea as amended. Appellant excepted, and elected to abide by the third plea as amended. Jury was waived, the cause was tried by the court and judgment for $149.50 and costs was rendered against appellant, to which he preserved an exception and prosecutes this appeal.

It is a general rule that where one guarantees the act of another, his liability is commensurate with that of his principal and he is no more entitled to notice of the default than the latter. Both must take notice of the whole at their peril. Gage v. Lewis, 68 Ill. 604; Pfaelzer v. Kau, 207 Ill. 116. Nothing in the contract of guaranty took this case from under this rule, and for that reason, the demurrer to the second special plea was properly sustained.

In order that a guarantor may be discharged by an extension of time, there must be a binding agreement between the creditor and principal debtor, entered into without the knowledge and consent of the guarantor, founded upon a valuable consideration, for an extension of time for a definite period, whereby the creditor’s hands are tied so that he cannot proceed to collect from the principal until the expiration of the time granted to him. A. & E. Enc. Vol. 9 (1st Ed.) page 83; Lawrence v. Johnson, 64 Ill. 351; Myers v. First National Bank of Fairbury, 78 Ill. 257. The third plea as amended did not state from whom Largent Bros, were to purchase these liquors, nor did it state that Largent Bros, agreed to buy all the liquors sold by them from appellee or anybody else. No promise was therein averred which would form a consideration for an extension, and it did not state a valid agreement with Largent Bros, to extend the time of payment. Therefore, the plea was obnoxious to demurrer. In our opinion, these pleas were framed on a misconception of the contract. The contract was based on an expressed consideration of $14.95. This was ten per cent, of the amount guaranteed or stipulated for in the contract. Appellant became liable to appellee as a principal debtor for a valuable consideration paid to him.

The proof showed that appellee was incorporated; that it sold $149.50 worth of liquor to Largent Bros.; and that it paid appellant $14.95, a ten per cent commission on the amount sold; that appellant executed the contract of guaranty declared on; that the time therein stipulated for payment had expired and that it had not received any money from appellant on the guaranty.

On the trial appellant offered no proof, but he now claims it was competent to prove the extension alleged in the pleas under the general issue. He did, however, ask one or two questions of a witness for appellee, which, if they had been answered, might have shown an extension; but to these questions an objection was sustained on the ground that it was not legitimate cross-examination. There was no error in sustaining appellee’s objections to such questions for the "reason that the witness had been asked nothing on the subject. Therefore, if appellant could have been released by a valid extension of the time of payment, no such extension was pleaded and no effort was made to prove it under the general issue.

The judgment is affirmed.

Affirmed.


text:
    Sanitary Can Company, Appellant, v. Lewis M. Hines, Appellee.
    Gen. No. 5,126.
    1. Pleading—effect of failure to complete issues. By submitting a cause to the court for trial and by waiving a jury, the parties submit the same to be tried by the court on the pleadings in the cause and the trial by consent cures the defect of issues not being formed upon the pleas.
    2. Consignor and consignee—what constitutes delivery. The delivery of the bill of lading or shipping contract executed by a transportation company alone operates as a symbolic delivery of the merchandise in transit to the party receiving the delivery of such bill of lading or shipping receipt.
    3. Bills oe lading—when proof of execution not essential. Held, that it was not essential in this case to prove the signature of the transportation company’s agent issuing the bill of lading or that the person signing it was the agent of such transportation company.
    4. Replevin—when demand not essential. No demand is necessary to the maintenance of a replevin action if the possession of the defendant was initially unlawful.
    Replevin. Appeal from the County Court of Peoria county; the Hon. W. I. Slemmons, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 24, 1909.
    Francis H. Tichenor, for appellant.
    Covey & Covey, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

October 30, 1907, Charles T. Howe & Company of New York, shipped to Peoria, Illinois, fifty cases of canned pineapple, consigned to their own order with the endorsement on hill of lading, “Notify Jobst Bet-hard Co.” November 4, 1907, the consignors sold these goods to the Sanitary Can Company, appellant, and endorsed and delivered to the latter a bill of lading therefor, issued at the time of shipment, also a writing which was attached to the bill of lading. Prior thereto, appellant had sold and delivered to Howe & Co. two carloads of empty tin cans for which payment had not been made. The goods shipped by Howe & Co. reached Peoria and were levied upon by the sheriff as the goods of Howe & Co. to satisfy an alleged claim of Jobst Bethard & Co. November 29, 1907, appellant replevied the goods. The declaration alleged that the goods were seized by the sheriff on a writ of attachment in favor of Jobst Bethard Company, and that they were the goods of the plaintiff and were not seized by the defendant by virtue of any attachment or other writ directed against the plaintiff. Appellee filed the pleas of non cepit, non detinet, property in himself, property in Charles T. Howe & Co. and a plea that the property was in Charles T. Howe & Co. and not in the plaintiff, and that he took the same by virtue of a writ of attachment sued out by Jobst Bethard & Co. against Chas. T. Howe & Co. The third, fourth and fifth pleas concluded with a verification. No replications were filed. A jury was waived and a trial had before the court. The issues were found for appellee, an order for the return of the goods made, and judgment for costs of suit rendered against the Sanitary Can Co. and the company appealed.

By submitting the case to the court for trial, and waiving a jury, the parties submitted it to be tried by the court, on the pleadings in the case, and the trial by consent cured the defect of issues not being formed upon these pleas. Kelsey v. Lamb, 21 Ill. 558; Hewetson v. City of Chicago, 172 Ill. 112; Supreme Court of Honor v. Barker, 96 Ill. App. 490.

Appellant’s proof showed that some sixty days before the shipment of the goods involved in these proceedings, appellant had sold and delivered to Charles T. Howe & Co. two carloads of empty cans which had not been paid for, and that Chas. T. Howe & Co. shipped the fifty cases of pineapple to their order at Peoria and delivered the same to appellant and endorsed and delivered to them the bill of lading issued by the transportation company together with an assignment thereto attached, and that this was intended to apply on the indebtedness for the two carloads of cans. The delivery of the bill of lading or shipping contract executed by the transportation company, alone, operated as a symbolic delivery of the fifty cases of pineapple to appellant. Michigan Central R. R. Co. v. Phillips, 60 Ill. 190; Taylor v. Turner, 87 id. 296; Lewis v. Springville Banking Co., 166 id. 311. In the Taylor case, it was held that the shipper, being the owner of the property (sheep), and no opposing interest or claim arising on the part of the carrier, consignee of prior endorsee of the bill of lading, no endorsement of the bill of lading to the interpleader was necessary to transfer title to it, and it was further held in the Taylor case, on the authority of Allen v. Williams, 12 Pick. 297, and First National Bank v. Dearborn, 115 Mass. 219, that even a sale or pledge of property without a formal bill of lading by the shipper, would operate as a good assignment of the property, and a delivery of an informal, unendorsed bill of lading or other documentary evidence of the shippers would be a good symbolical delivery, so as to vest the property in the plaintiff. It cannot be doubted that the endorsement and delivery of the bill of lading made a prima facie case for appellant and as appellee offered no evidence in rebuttal thereof, the judgment should have been in appellant’s favor.

To overcome this apparent necessary result of appellant’s proof, appellee replies that the court below sustained an objection to the bill of lading and that it was not admitted in evidence and that while the assignments of error question the correctness of the ruling of the court in sustaining objections to the testimony, yet as appellant’s counsel did not argue such objection in his original brief, he is barred from discussing it in his reply brief, and that as the bill of lading is not in evidence, the proof did not make a prima facie case for appellant. The record shows that appellant took, offered and read in evidence, the deposition of Charles T. Howe and that he identified'the bill of lading and assignment which were attached thereto, as exhibits, to such deposition. And said deposition and exhibits were read in evidence without objection. Afterwards, plaintiff offered these documents separately and an objection was made to the introduction of the bill of lading on the ground that it was incompetent, immaterial, and that no proper foundation had been laid for its introduction, and no proof of its execution by the common carrier. This objection was sustained and plaintiff excepted. The condition of the record then, is this: The bill of lading had once been offered with the deposition, and read in evidence in connection therewith, but an objection was sustained to it when offered separately. With a record in this state in a cause tried by the court without a jury, we do not think appellant’s counsel should be precluded from discussing, in his reply brief, the action of the court in sustaining the objections to the bill of lading when offered in evidence the second time.

Appellee urges that the court ruled correctly in sustaining the objection to the admission of the bill of lading in evidence because its execution by the transportation company was not proven, and because the proper foundation was not laid, and because no sufficient consideration for the purchase had been shown. The deposition of Charles T. Howe states fully the transaction between the firm of Charles T. Howe & Co. and appellant. He testified that Charles T. Howe & Co. shipped the fifty cases of pineapple to their own order at Peoria by the Delaware, Lackawanna & Western Railroad Company, and that they had received a bill of lading from the company when they made the shipment. He identified the bill of lading offered in evidence as the one they received from the transportation company when they made the assignment, and testified to the sale of the goods and the endorsement of the bill of lading to appellant and that he wrote the endorsement on the back thereof. This clearly establishes that the bill of lading was issued by the trafisportation company to Charles T. Howe & Co. for these goods, and it was not necessary to prove the signature of the transportation company’s agent issuing the bill of lading, or that the person signing it was the agent of the transportation company. The transportation company received the fifty cases of pineapple for shipment, and issued the bill of lading, and it is immaterial how it was signed.

Appellee also urges that the amount due from Howe & Co. for the two cars of cans is not stated and it may not have been as much as the value of the fifty cases of pineapple. The testimony of both Howe and Bogle, appellant’s president, is that this shipment of pineapple was sold to appellant to apply upon that indebtedness. This signifies that it did not equal the indebtedness. The court therefore erred in sustaining the objection to the bill of lading.

It is said that the other paper or writing termed an assignment given by Howe & Co. to appellant at the same time as the bill of lading, has some effect upon it as a transfer of the title to the goods. It is alleged, in appellee’s brief, that Howe & Co. had given Jobst Bethard & Co. a bill of lading of these goods, and had sold them to Jobst Bethard Co. and that the intention of that assignment was only to transfer to appellant the account of Howe & Co. against Jobst Bethard Co. The answer to this is that there is no proof in the record that these goods had been sold or a bill of lading delivered by Howe & Co. to Jobst Bethard & Co. Whether, then, the execution of the assignment would qualify the effect of the delivery of the bill of lading to appellant, if proof had been made of the facts alleged in appellee’s argument, cannot now be determined. As it now stands, the assignment is practically unexplained.

Appellee argues that appellant did not prove that a demand for the goods had been made on appellee before suit was brought, and for that reason the judgment is right. Appellee did offer in evidence the attachment writ issued at the suit of Jobst Bethard Co. against Charles T. Howe & Co. and an endorsement of a levy on these goods as the property of Charles T. Howe & Co. But this was five days after the bill of lading had been transferred to appellant. When appellee as sheriff seized these goods, he had no means of knowing that they were the goods of Charles T. Howe & Co. and he wrongfully seized them, under the facts as they appear in this record. Appellee being wrongfully in possession, no demand upon him for their return was necessary. Clark v. Lewis, 35 Ill. 417; Tuttle v. Robinson, 78 Ill. 332.

The court below should not have sustained the objection to the bill of lading when offered the second time, except on the ground that it had already been admitted, and should have rendered judgment for appellant on the proofs offered in the record.

The judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Tony Castelano, Plaintiff in Error, v. Chicago & Joliet Electric Railway Company, Defendant in Error.
    Gen. No. 5,064.
    1. Verdicts—when not disturbed. If the evidence upon an issue of fact is conflicting, the verdict of the jury approved by the trial judge will not be disturbed in the absence of material error of law.
    2. Instructions—effect of repetitions. While it may be unnecessary for the court to give to the jury many instructions defining a particular duty, yet if such instructions so given correctly state the law, the repetition of such correct principle does not amount to reversible error.
    3. Instructions—what justifies refusal. If an instruction is long and involved and contains an improper statement, even though otherwise correct, the court is justified in its refusal.-
    4. Passenger and carrier—when doctrine res ipsa loquitur does not apply. The doctrine res ipsa loquitur has no general application to injuries resulting to a passenger. If, however, an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, or ny some defect in machinery, cars or track, and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of the passenger and raises a presumption of negligence.
    Action in case for personal injuries. Error to the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Reynolds & Purkhiser, for plaintiff in error; E. C. Hall, of connsel.
    E. Meers, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

The Chicago & Joliet Electric Railway Company, defendant in error, hereinafter called defendant, operated an electric railway in Joliet, Illinois. September 21,1905, Tony Castelano, plaintiff in error, hereinafter called plaintiff, boarded one of defendant’s cars at South Richards street, to go to his boarding house on Collins street. To reach the latter place, it was necessary for him to change cars. He procured a transfer from the conductor upon paying his fare, and in the heart of the city changed to a Lockport car. He had a valise in one hand and a dinner pail in the other or on his arm, and in alighting from the car, in some way he fell or jumped or was thrown to the ground, and his left arm went under the front wheels and was so injured that it required amputation. He brought this suit in the Circuit Court of Will county to recover for the injuries so sustained.

The declaration contained three counts. The first and second counts each charged that the car stopped; the first, that it stopped fifty feet north of Elwood street; the second, that it stopped at the intersection of Elwood and Collins streets and that while plaintiff was endeavoring to alight, it suddenly started without warning and threw him. The third count charged that the car did not quite stop, but traveled very slowly over the Elwood street crossing, and that while plaintiff was standing with one foot on the car and the other on the foot board, and holding on the arm of the seat, the car, without coming to a full stop, started with a sudden and violent jerk forward and thereby plaintiff was thrown upon the ground. Each count averred that his left arm was torn from his body and that he was otherwise permanently injured, and that he was in the exercise of due care for Ms own safety when injured. There was a plea of not gmlty, and a trial and verdict for defendant. A motion for a new trial was denied, judgment was entered on the verdict, and tMs writ of error was sued out by plaintiff to review this judgment.

Plaintiff testified that he sat on the front platform back and to the right of the motorman, and that he told the conductor, upon handing Mm his transfer slip, that he desired to get off at Columbia street, and that he stood up and told the conductor he wanted to get off before coming to Columbia street but that the car was not stopped there; and that before the ear reached Elwood, the next intersecting street, he indicated his desire to the conductor and motorman to get off there. Five witnesses called by plaintiff testified that the car stopped north of Elwood street, some saying it stopped thirty or forty feet north, others that it stopped about the middle of the block, and then started forward with a jerk.

The conductor denied that the plaintiff notified him that he wished to get off at Columbia street and denied that he signaled that he wished to get off. The motorman testified that after he left Elwood street, he asked plaintiff if he wanted to get off, and that plaintiff nodded his head; that he then shut off the power intending to stop at the next street to let plaintiff off, and the next thing he knew plaintiff was on the ground, and that he stopped his car as quickly as he could. One witness called for defendant, testified that the car was going very slowly at the time plaintiff left the ear. Five other witnesses testified that the car was moving when plaintiff got off, and one that plaintiff was being dragged when the witness first saw him. Three witnesses testified that plaintiff was back of the front trucks when he was picked up, two that he went under the trucks, one that he was near the center of the car, and one that he was under the second seat. All of defendant’s witnesses who remembered whether the car stopped or not, testified that it did not stop until after he fell from the car.

If the car started forward with a jerk as plaintiff was attempting to alight, it is doubtful if it could have been stopped as quickly as it must have been, since plaintiff lay near the front trucks when he was picked up. If it were moving slowly, a question of fact was presented for the jury as to whether plaintiff was exercising due care in attempting to alight from the car while it was in motion. On the question of fact presented by the first and second counts, the evidence was very conflicting, and the jury having decided it and the trial judge having approved their verdict, we should not, in the absence of material error of law, be warranted in interfering with their findings.

Appellant complains that the court erred in giving appellee’s third, fourth, fifth, eleventh and twelfth instructions. The criticism of these instructions is that they repeat and give prominence to the care required of plaintiff for his own safety. Bach correctly stated the degree of care imposed by law upon plaintiff. It was no doubt unnecessary for the court to give so many instructions defining plaintiff’s duty in that particular, but they accurately stated the law, and a repetition of a correct principle does not amount to reversible error.

It is argued by plaintiff that the facts justify the application of the doctrine of res ipsa loquitur, i. e., proof that plaintiff was a passenger for hire and was injured makes a prima facie case, and that defendant’s instructions ignore that doctrine. The res ipsaloquitur maxim has a proper and legitimate application in actions for negligence, including an action against a carrier of passengers for an injury to a passenger; but the maxim does not apply upon mere proof that an accident has happened to the passenger. A carrier of passengers is not an insurer of their safety, and therefore liability does not arise from the mere happening of an accident; but the carrier is held to the exercise of the highest degree of care consistent with the mode of carriage and the practical operation of the business, and is liable for an injury resulting from such want of care. If an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, or by some defect in machinery, cars or tracks, and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of plaintiff and raises a presumption of negligence.- The presumption arises, however, from the nature of the accident and the circumstances, and not from the mere fact of the accident itself. Barnes v. Danville St. Ry. Co., 235 Ill. 566. Plaintiff, in support of his contention, relies on Chicago City Ry. Co. v. Carroll, 206 Ill. 318. In that case, the trolley pole from the car from which appellee had just alighted or was alighting, struck him upon the head and knocked him down. This accident was caused by a defect in appellant’s appliances or machinery over which it had control, and over which appellee had no control. In the case at bar, plaintiff was not injured by the breakage or failure of any appliance owned or controlled by the carrier, and whether it was in consequence of the act, omission or mistake of its servants, was a question of fact for the jury. Therefore, we conclude that the Carroll case is not applicable. There was no error in defendant’s instructions in the particular complained of.

The grave question is, did the court err in refusing plaintiff’s second instruction, drawn to apply to the third count which charged that the car slowed up and then suddenly started. It was modeled and partially copied from the first instruction given on behalf of appellee in Springfield Ry. Co. v. Hoeffner, 175 Ill. 634. It consumes nearly three pages of the abstract, and we deem it unnecessary to lengthen this opinion by quoting it in extenso. Although the instruction was long and involved, there was evidence enough to warrant the court in giving it, but for the fact that there appeared therein, this statement, “said car then and there being moved very slowly.” This might have been understood by the jury to be a statement by the court. The court might have amended the instruction so as to have left that question to the jury but if it had been given as asked and there had been a judgment for plaintiff, it could have been urged with a great show of reason that the court instructed the jury that the car was moving very slowly, thus invading the province of the jury. In view, then, of the improper statement in the instruction, and its long and involved character, and that substantially all of plaintiff’s evideuce went to make a case under the first and second counts, and that there was but slight or little evidence tending to make a case under the third count, we conclude that the judgment should not be reversed on account of the refusal of that instruction.

The judgment is affirmed.

Affirmed.


text:
    National Surety Company, Defendant in Error, v. Giacomo Maffioli, Plaintiff in Error.
    Gen. No. 4,887.
    1. Appeals and errors—when hill of exceptions essential. Affidavits not included in a bill of exceptions are no part of the record and will not be considered on review.
    2. Amendments and jeofails—sheriff’s return. It is proper for the court to permit upon a proper showing the amendment of the return of the sheriff made upon a summons; at the term to which the process is returnable the leave may be allowed without notice to the party affected and as a matter of course; after the term and after the expiration of the term of office of the officer making the return, it may be amended within any reasonable time upon proper notice to parties to be affected. Such amendment may be predicated upon the recollection of the officer who made the service.
    Assumpsit. Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Charles W. Ferguson, for plaintiff in error.
    A. P. Smith, for defendant in error.
   Me. Justice Willis

delivered the opinion of the court.

On December 2, 1907, defendant in error brought suit in assumpsit against plaintiff in error in the Circuit Court of Winnebago county. Summons issued thereon and was served on plaintiff in error. The return showing service thereof .recited, “I have duly-served this writ on the within named defendant, Giacomo Maffioli, by reading the same to.............. this 2 day of January, 1908.

Charles S. Collier, Sheriff,
By Gus Johnson, Deputy.”

Judgment by default for $500 and costs was rendered against plaintiff in error January 15, 1908. Thereafter plaintiff in error sued out this writ of error to reverse the judgment for want of service. Three days before the writ of error was sued out plaintiff below notified defendant below that, at the April term, 1908, of the Circuit Court of Winnebago county, it would apply to said court for leave to the sheriff to amend his return of summons served in said cause, and that the case would be redocketed for said purpose. The April term of said court mentioned in said notice next succeeded the term at which judgment was entered. On April 13, 1908, both parties being present and participating, a hearing on the motion was had, and the court entered an order permitting the sheriff to amend the return to the summons to show service upon defendant below by a delivery of a copy of the summons to him. Defendant in error obtained leave, and filed in this court a supplemental record showing the proceedings on the amendment of the return in the court below. From the affidavits read on the hearing of the motion in the court below and appearing in the supplemental record, it appears that it was a disputed question of fact whether the copy of the summons was delivered to plaintiff in error or to his attorney, but these affidavits are not included in any bill of exceptions and are not preserved for our consideration. All that is properly shown by the additional record is, that such motion was made and heard in open court, both parties appearing and participating, and that leave was given the sheriff to amend the return, and that an amendment was made. As amended the return shows service in compliance with the requirements of section 2 of the Practice Act of 1907, which provides that service of summons, except where otherwise expressly provided by statute, shall be by leaving a copy thereof with the defendant in person.

The only question is as to the propriety of making the amendment. The authority of the sheriff or other officer to amend his return upon process so as to make it speak the truth has always been conceded to exist. By the fourth section of the statute of “Amendments”, returns of sheriffs or other officers may be amended, according to the truth of the matter, by the court to which the return shall be made, in its discretion, as well before as after judgment. County of La Salle v. Milligan, 143 Ill. 344. At the term to which the process is returnable, the leave may be allowed without notice to the party affected and as a matter of course. O’Connor v. Wilson, 57 Ill. 226; Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Ill. 614. And after the term and after the expiration of the term of office of the officer making the return, it may be amended within any reasonable time upon proper notice to parties to be adversely affected. Chicago Planing Mill Co. v. Merchants’ Nat Bank., 97 Ill. 294; Thrifts v. Fritz, 101 id. 457; Howell v. Albany City Ins. Co., 62 id. 50; Terry v. Eureka College, 70 id. 236; Thatcher v. Miller, 13 Mass. 270; County of La Salle v. Milligan, supra. But the amendment can only be made by the officer who made the return. Wilson v. Greathouse, 1 Scam. 173; O’Connor v. Wilson, supra; County of La Salle v. Milligan, supra. Amendment to a sheriff’s or other officer’s return so as to correspond to the facts, may be made after error brought or appeal taken. Ellis v. Ewbanks, 3 Scam. 584; Hawes v. Hawes, 33 Ill. 286; Tennent Stribbling Co. v. Hargardin McKittrick Co., 58 Ill. App. 368.

In the case at bar the amendment was made at the term next following that at which judgment was taken, and upon notice to the party to be affected adversely, and by the officer who made the service in the first instance in accordance with the facts from his personal recollection. This was within the rule declared in O’Connor v. Wilson, supra, and Borlow v. Standford, 82 Ill. 298.

There was no error in allowing the amendment,- and the judgment is therefore affirmed.

Affirmed.


text:
    Francis M. Hoover, Administrator, Plaintiff in Error, v. Empire Coal Company, Defendant in Error.
    Gen. No. 5,060.
    1. Mines and Miners Act—who cannot maintain action. Where a wilful violation of the provisions of the Mines and Miners Act results in injury to a party the statute gives such party an action for the direct damage sustained thereby; in case of loss of life by reason of such wilful act of violation, the right of action is given by the statute to the widow of the person so killed, his lineal heirs and adopted children, or to any person who was dependent for support upon the person so killed, for the recovery of damages for injuries caused by such loss of' life; hut the statute does not give a right of action to the administrator of the person so killed.
    2. Evidence—when hearsay competent. Hearsay evidence which has been received without objection will he treated as competent.
    3. Evidence—what does not support substantive fact. A statement made by a person killed in an accident which is not a part of the res gestae is not evidence, even though it may have been received in evidence without objection, which tends to establish the manner in which such person came to his death.
    4. Master and servant—when doctrine of assumed risTc applies. If an injury results to a servant from the balky habits of a mule known to such servant and not complained of by him, he cannot recover of his master.
    5. Master and servant—when declaration insufficient. Held, that the declaration in this case was insufficient in that it did not aver that the servants whose negligence was alleged to have been the cause of the injury in question were not fellow-servants of the plaintiff’s intestate.

      6. Master and servant—when declaration insufficient. Meld, that the declaration in this case was insufficient in that it admitted that the plaintiff’s intestate was fully aware of the unsafe and dangerous character of the conditions and appliances in question and made no complaint thereof but consented to use the same.
    7. Damages—in action for death caused "by alleged wrongful act. Meld, that the evidence in this case, which showed that the plaintiff’s intestate was not a regular contributor to the support of his next of kin, was of such a character as to render it doubtful whether or not more than nominal damages could be recovered.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    W. J. Graham, for plaintiff in error.
    Church & Church, Cooke & Wilson and Jackson, Hurst & Stafford, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

On May 9, 1907, Williamson C. Hoover, while employed as a mule driver in the coal mine of defendant in error and driving a mule hauling two loaded coal cars along the eleventh west entry off the main south hauling way, fell in front of the first car and the front wheels ran over him and he therefrom received injuries which resulted in his death. Plaintiff in error was appointed administrator of the estate of said deceased and brought this suit against defendant in error to recover damages for the loss to the next of kin of said deceased occasioned by his death. Plaintiff’s amended declaration, as amended, which will be hereafter called the declaration, contained nine counts. The court sustained a demurrer to the fourth, seventh and eighth counts. Defendant filed a plea of not guilty to the remaining counts and there was a jury trial. At the close of the evidence introduced by plaintiff in error, the court directed a verdict finding the defendant in error not guilty. A motion by plaintiff in error for a new trial was denied and defendant in error had judgment for costs, from which plaintiff in error prosecutes this writ of error.

Plaintiff in error concedes that the evidence did not make a case under the ninth count. The sixth count was for a wilful violation of the statute relating to the operation of coal mines, and evidence was offered tending to show a violation of that statute. Where a wilful violation of the provisions of that statute results in injury to a party the statute gives him an action for the direct damages sustained thereby; and in case of loss of life by reason of such wilful violation of the statute a right of action is given by that statute to the widow of the person so killed, his lineal heirs or adopted children, or to any other person who was dependent for support on the person so killed, for a recovery of damages for injuries caused by such loss of life. It does not give a right of action to the administrator of the person so killed. Plaintiff in error therefore could not recover under the sixth count. It need not be further considered. The first, second, third and fifth counts will be assumed to be sufficient, after a plea of not guilty filed, to. support a verdict for plaintiff in error, if the proofs would have warranted such a verdict.

Deceased was between twenty-one and twenty-two years of age. He had been working in the mine of defendant in error since he was fourteen years of age, but not all the time. There were thirty rooms on the eleventh west entry and at the time of the accident in question coal was being mined in all but two of them. On the day of the accident, deceased and three others were engaged in hauling the coal from these rooms to the main south hauling way, where other appliances conducted the cars to the mouth of the shaft. Bach driver drove one mule hauling two cars. They went into the entry together hauling in and setting out empty cars, and then they went to such rooms as they were directed to by Curtis, one of their number, and took out loaded ears and drove with them to the main south hauling way. The two cars were hooked or coupled together. The cars ran upon iron rails resting upon ties laid in the bottom of the entry. Two traces from the collar or harness of the mule were attached behind the mule to a single-tree or butt-stick, which was kept from falling down by straps from the mule’s back. One end of the chain, called a tail-chain, was hooked into the single-tree. The other was attached to a hook on the front end of the front car. There was no place on the front end of the front car where the driver could ride in a sitting posture. Some cars had a bumper projecting out in front and some did not. Where there was a bumper it was the practice in this entry for the driver to ride with one foot on the bumper and the other foot on the tail-chain, and with one hand holding on to the car and the other resting on the mule. The tail-chains used in this mine were of different lengths, and each driver could select a chain to suit himself. We find no proof in this record as to whether there was or was not a bumper on the front end of this car. Deceased was injured at one or two o’clock in the afternoon. A witness who came on duty at nine o’clock that night testified that he then found five cars standing at that point, and that the coal on the front end of the front car projected over so that it did not leave a good footing for the driver. Plaintiff in error failed to prove that this was the car which deceased was riding upon when he met the accident, and failed to prove that it was then in the same condition as when deceased was injured. The front wheels were off the track and the coal might-have been moved by the sudden stopping of the car. The evidence of this witness was therefore finally excluded. There remains therefore in the record, so far as we are advised, no evidence that there was any lack of proper footing on the front end of the car.

There was proof that there was no brake on the car, but deceased had worked in the mine off and on for over seven years and there is no proof that there were ever any brakes used on any coal cars in this mine. There were two places in this entry where in going out the cars ran down a slight declivity, and deceased was injured in going down one of these depressions. A. sprag was sometimes used by a driver to check the speed of a car in going down an incline, and the proof showed that deceased did not have a sprag. But the proof also showed that there were sprags in the mine, kept where a miner could get one whenever he chose. There was proof of gob piled on the south side of this passage, and that there was water under and along the ties for some distance just back of the place where deceased was found, and that there were poor joints along this track, which caused the cars to rock as they passed along over these joints, and that there was no light in this entry except from the lamps carried upon the caps of the workmen. But there was nothing from which the jury could find that any of these conditions caused or contributed to the injury to deceased. Moreover, these conditions must have been well known to deceased, as he had been driving in this entry for three days and taking out twenty to twenty-five trips per day under these conditions, and had made no complaints, and clearly assumed whatever risks arose therefrom. With the exception of one item of evidence, there is no proof from which the jury could find how deceased came to get under this car. The man following him ran into his rear car, and stopped, and went forward and found deceased lying between the wheels of the front car, with his head upon the south rail and one foot projecting beyond the north rail and his body in such a position that it lifted the front wheels about two inches above the rail. But there was nothing in the surroundings from which any one could judge how he came to be in that position. The only testimony having any tendency- to show how deceased received his injuries was the evidence of a physician who attended deceased after he had been removed to his brother’s home, and who testified that his brother asked deceased how he got hurt, and that deceased said that the mole backed up and that he went down. No objection was interposed to this testimony and it therefore is to be treated as competent, but that conversation was not a part of the res gestae, and we fail to see how proof that deceased made that statement is any proof that that was the manner in which deceased came to go under the car. It is proof that he made the statement, but not proof of the fact. With that eliminated there is nothing from which the jury could reasonably find how deceased came to his death. If, however, we assume that this statement by deceased was proof that he received his injuries in that manner, then it is necessary to consider the evidence relating to this mule. The mule had hauled cars in the mine for several years. He was very slow. When he hauled loaded cars down a declivity he was disposed to hold back and let the ear strike- him, and other drivers, when previously driving this animal, had been caught and squeezed between the car and the mule, and had frequently complained to their superiors that the mule was dangerous. When this mule came to where there was water in the track he was in the habit of jumping to the side in an effort to avoid the water. If a miner in front of him gave a signal to stop he would stop and let the car run against him. The brother of deceased knew of these characteristics of this mule, and knew that deceased was driving this mule, and had warned deceased about him. Notwithstanding that warning, deceased continued to use him, and this was the afternoon of the third day during which he had been driving this mule while hauling loaded ears down these declivities and over these wet places. He had made twenty or twenty-five trips each day. If the mule was accustomed to hang back and let the car run against him and thus slacken the chain and endanger the position of the driver, deceased could not have failed to be thoroughly cognizant of these facts. He continued to use this mule; and his superior, called as a witness by plaintiff in error, testified that' deceased made no complaint of the mule. Under such circumstances it would seem clear that he assumed all the risks of working with said mule, and could not have recovered for injuries caused by the actions of the mule, if he had lived and brought the suit himself. If the facts would not have given deceased a cause of action if he had lived, his administrator could have no cause of action.

It is argued that the court erred in sustaining the demurrer to the fourth, seventh and eighth counts of the declaration. Bach of these counts described fully the business in which defendant in error was engaged and the employment of deceased by defendant in error as a mule driver, and that he was engaged in driving a mule hauling cars loaded with coal along said passageway towards the main shaft, with due care and diligence. The fourth count alleged that deceased fell from his position on the trip in front of said trip of cars upon the track; that defendant in error negligently permitted its trip of cars to be moved along said passage so close together as to be dangerous to the lives of those laboring in the entry, and negligently failed to provide any means of warning deceased or others working in said entry of the approach of trips of cars along said entry, so that it was impossible for deceased to know of the approach of such trips of cars and to guard himself from injury therefrom; that defendant in error also negligently failed to furnish the necessary lights in said entry and to provide and to enforce the necessary rules and regulations and the necessary trappers, flagmen and spragmen or any method of warning deceased and others of the approach of trips of cars in said entry; and that while deceased was lying in said entry on said hauling track, another trip of cars, driven by a servant of defendant in error, collided with the trip which deceased had been driving and struck the same a violent blow from behind and forced the wheels of the car deceased had been driving upon his body, crushing it, and that this was because of the negligence of defendant in error in not having the necessary trappers, flagmen or spragmen, and not furnishing necessary lights, and in not making and enforcing necessary rules and regulations and not providing any means of regulating the distance between the trips of cars, and not warning deceased of his danger; and the count averred that deceased, when he fell upon the earth in said mine, did not know and had no opportunity of knowing, that he was in a dangerous position on account of the close proximity of said trip of cars, and did not have an equal opportunity with defendant in error to know the same, and that defendant in error well knew that said trip of cars traveling in said entry without warning to deceased of its approach was dangerous to deceased. It will be observed that the only lack of knowledge of existing conditions which this count attributes to deceased was that he did not know that the close proximity of another trip of cars was dangerous to him. It is obvious from the framework of this count that each of these trips was accompanied and controlled by a driver, a servant of defendant in error, and there is no averment that these were not fellow servants with deceased, and it is plain that if the car behind negligently struck the trip of cars driven by deceased, this was the negligence of a fellow servant of deceased. It is not shown how flagmen, trappers or spragmen were necessary, or why reasonable care by defendant in error would have provided them, nor what service they could have performed that would have avoided this accident, nor what rules and regulations were necessary, nor what rules and regulations did prevail, nor wherein they were defective. Construing the count against the pleader, it concedes that deceased knew that there were no rules, regulations, lights, flagmen, trappers or spragmen used in running these trip cars, and knew what dangers arose from their absence. It therefore concedes that he assumed all these risks, and it must be construed to concede that the running of the trips so close together was the negligence of a fellow servant.

. The seventh count alleges that defendant in error had negligently constructed an entry that was dangerous to the lives of deceased and its other employes working in said entry; and negligently failed to furnish deceased with safe appliances for performing his work, but required him to work with appliances known to defendant in error to be dangerous to the life of deceased, and by this negligence he was thrown or fell from the car he was then driving and under the wheels of said car, and was crushed. Under the rules of pleading this count admits that deceased was fully aware of the unsafe and dangerous character of these conditions and appliances, and made no complaint thereof, but consented to use the same, and thereby assumed the risk arising from such use. This count is defective in other respects.

The eighth count alleged that defendant in error negligently required the mule drivers to conduct said trips of cars down said inclined plane, and failed to provide any means of preventing collisions, and failed to provide a switch at the top of the inclined plane where cars could be collected and hauled to the main entry by other means, and that it was dangerous to the life of deceased to haul cars down said inclined plane, and that deceased had complained to defendant in error of the unsafe condition of said inclined plane, and that defendant in error had promised that it would provide a suitable switch at the top of the hill so that deceased would not be required to drive cars down said inclined plane, and that deceased relied upon this promise, and that as he was conducting a trip down the hill another trip of cars collided with the cars on which deceased was riding and threw him to the ground in front of the cars, and by force of gravity the cars ran upon his body and crushed it. It is not charged how long this condition had existed, nor when this promise was made, nor whether or not a sufficient length of time had elapsed to enable defendant in error to perform the promise nor that deceased did not continue in the employment after a reasonable time had elapsed and he knew that the promise had not been performed, nor is it shown by the count that the building of the switch at the top of the hill would have prevented this accident. The count charges that these other trips were driven by other employes of the defendant, and it is not averred that they were not fellow servants of deceased, and the negligence of fellow servants in running said other trips of cars is not excluded. We therefore conclude that the court did not err in sustaining the demurrer to these counts. It is also to be said that most of the proof which these counts would have permitted was introduced under other counts of the declaration to which the demurrer was not sustained, and that plaintiff in error seems to have had the benefit of all proof which would have been admissible if issue had been joined on these counts.

The father of deceased had died several years before. He had been supporting his mother till about three months before this accident, when she died. His living next of kin were brothers and sisters, all of whom were married and living with their own families. Deceased lived with one of them, and did some work and made some presents apparently in lieu of paying for his board. He gave small sums to his other next of kin. It is a matter of great doubt whether the circumstances would entitle the administrator to recover more than nominal damages on their behalf, but we deem it unnecessary to consider or decide this question.

For the reasons stated the judgment is affirmed.

Affirmed.