text:
    Christian Ruehle, Appellant, v. Joseph K. Montelius, Appellee.

      Instruction's—when peremptory properly given. A peremptory-instruction for a defendant is properly given where there is no evidence in the case which by reasonable inference and fair conclusion tends to establish the plaintiff’s case.
    Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Schneider & Schneider, for appellant.
    M. H. Cloud and F. M. Thompson, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Upon a former appeal from a judgment in this case against the plaintiff in bar of his action it was held by this court that while the demurrers to the first, third and fourth additional counts of the declaration were properly sustained, the demurrer to the second additional count of the declaration should have been overruled, and the judgment of the lower court was reversed and the cause remanded. Ruehle v. Montelius, 149 Ill. App. 416. Upon the remandment of said cause to the Circuit Court the demurrer to the second additional count of the declaration was overruled and the defendant filed his plea of the general issue. To the fourth and fifth additional counts then also filed to the declaration demurrers interposed by the defendant were sustained by the court- and- the plaintiff elected to abide his said counts. The cause proceeded to trial upon the second additional count of the declaration and at the close of the evidence for the plaintiff the court gave to the jury a peremptory instruction to find the issues for the defendant." Upon "the verdict of the jury as so directed judgment was rendered against the plaintiff in bar of his action and for costs of suit, to reverse which judgment he prosecutes this appeal.

It is first urged that the court improperly sustained the demurrers interposed to the fourth and fifth additional counts of the declaration. The fourth additional count bases a right of recovery against the defendant upon his alleged parol promise to pay a debt owing from one McLaughlin to the plaintiff upon the consideration that the plaintiff would forbear to bring a certain attachment suit against said McLaughlin and against certain goods and chattels then and there located in Piper City. Counsel for plaintiff insist that said count of the declaration was drawn in compliance with the views expressed by this court in the former opinion, and it may be conceded that in the particulars wherein this court was called upon on the former appeal to express its views counsel have endeavored to comply therewith, but we were not then called upon and did not presume to state all the essential elements of a good count in a declaration upon the cause of action here involved. The fourth additional count is defective in failing to allege that McLaughlin was the owner of any goods and chattels which might be subject to levy by attachment and that the plaintiff in fact released McLaughlin from the payment of his in-debtedness. In the latter particular the plaintiff attempted to allege a release but only did- so by way of inference from a state of facts which did not justify such inference.

The fifth additional count based a right of recovery upon certain alleged correspondence and order in writing introduced in evidence upon the trial, and hereinafter ref erred, to, which were wholly insufficient to charge the defendant with any liability. We therefore conclude that the court did not err in sustainin°demurrers to the fourth and fifth additional counts of the declaration.

As to the second additional count of the declaration upon which the parties proceeded to trial we held in our former opnion that it stated a good cause of action by the plaintiff against the defendant as upon an original undertaking, predicated upon the surrender by McLaughlin of certain money and property to the defendant in consideration of which the defendant promised to pay the plaintiff the amount due and owing to him from McLaughlin, and whereupon the plaintiff released McLaughlin from his indebtedness.

The evidence introduced on behalf of the plaintiff to support a recovery under said second additional count of the declaration discloses that in response to orders therefor from McLaughlin the plaintiff shipped from his place' of business at Kankakee to said McLaughlin at Piper City in 1906 three cars of cement, which cement was purchased by said McLaughlin for use in connection with some work he had contracted to do for the village of Piper City; that on March 8, 1907, the plaintiff went to Piper City for the purpose of collecting or securing the payment of a balance of $355.28 then due him for said cement and found 686 bags of cement which he had shipped to McLaughlin stored in a shed which belonged to one Welsh; that the plaintiff then consulted the defendant, who was cashier of the First National Bank of Piper City, relative to the collection of his claim against Me-. Laughlin, and told the defendant that he was going to attach the cement unless some settlement was made; that the defendant told the plaintiff if there was enough cement there to pay the bill there was still some money due from Piper City; that the defendant volunteered to write out an order on the village of Piper City to be signed by McLaughlin, and told the plaintiff that when such order was signed and when the cement was used up he, defendant, would pay the bill in full. On the same day the plaintiff procured the signatures of McLaughlin to a letter directed to the defendant and to an order directed to the village board of Piper City, as follows:

“Piper City, Ill., 3-8, 1907.

Mr. J. K. Montelius,

Piper City.

Dear Sir:—Kindly arrange with Mr. Ruehle to settle my bill due him $355.28 in some way you see fit.

I have all the material on hand and some money due me and I will be in good circumstances after the job is completed. I would have called personally, but could hot leave the house on account of being sick.

Tours truly,

Wm. McLaughlin. ’ ’

“March 8, 1907.

To the Village Board of Trustees, Piper City:—

Please pay out of the first fund for labor I do for the Village $355.28, (three hundred fifty-five dollars and twenty-eight cents) and charge on account of labor to be done when completed.

Order payable to J. K. Montelius, Cashier, and oblige,

Tours truly,

Wm. McLaughlin.”

There is not a scintilla of evidence in the record tending to show that McLaughlin thereafter performed any labor whatever for the village of Piper City, or that any money was then or thereafter due McLaughlin for labor, or that the work contracted for was ever completed, or that any part of the 686 bags of cement ever came into the possession of the defendant or was used in connection with any work for said village, or that any money from any source ever came into the hands of the defendant, individually or as cashier, on account of any labor performed by McLaughlin. In this state of the record the trial court could not with propriety have refused the peremptory instruction tendered by the defendant and the same was properly given to the jury.

Counsel for plaintiff suggest that the lack of evidence to establish plaintiff’s claim may be supplied by reasonable inferences and fair conclusions. This is not a case in which any phase of the doctrine of presumptions either of law or fact can be invoked to aid the plaintiff in establishing a right of recovery against the defendant.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mb. Justice Baume

license: Public Domain

text:
    P. Weakley Huston, Appellant, v. Willis P. Wright, Appellee.
    Justice of the peace—Hohat essential to establish jurisdiction of appeal from. The transcript with a certificate of the justice showing the proceeding before him is essential to confer jurisdiction of an appeal to the County Court.
    Action commenced before justice of the peace. Appeal from the County Court of McDonough county; the Hon. William J. Franklih, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Vose & Creel, for appellant.
    Clarence S. Townley, for appellee.
   Mb. Justice Baume

delivered the opinion of the court.

The plaintiff brought this suit against the defendant before one Williams, a justice of the peace, from whom upon the application of the defendant a change of venue was taken to J. B. Stookey, a justice of the peace. It is admitted that upon a trial of the case before the last named justice there was a judgment in favor of the plaintiff and against the defendant for $4.77 together with costs of suit. For the purpose of taking an appeal from said judgment the defendant filed his bond with the clerk of the County Court of McDonough county, which bond was approved by said clerk, and in response to a supersedeas issued and served upon said justice of the peace he returned what purported to be a transcript of his docket to the clerk of said court. The pretended transcript so returned by the justice of the peace as the same appears in this record contains no certificate whatever that the same contains a full and perfect statement of all the proceedings. It is not a case wherein the certificate is merely defective but one in which a certificate is wholly lacking. While the County Court had jurisdiction of the persons of the parties it had no jurisdiction of the subject-matter of the suit, because there was no trap-script of the proceedings before the justice of the peace. In Demilly v. Grosrenaud, 201 Ill. 272, a very similar record was involved and it was held that the Circuit Court was without jurisdiction of the subject-matter; that the objection to such want of jurisdiction could not be waived and that the judgment of the court was a nullity. In this state of the record the case proceeded to trial in the County Court before a jury and resulted in a verdict for the defendant and judgment against the plaintiff for costs, from which judgment the plaintiff prosecutes this appeal.

In view of the fact that the record in this respect may he perfected and the case he re-tried we will very briefly consider other errors appearing in the record of the trial.

It did not sufficiently appear that the mill book offered in evidence by the defendant was a book of original entries entitling it to be admitted in evidence. The docket of the justice of the peace offered in evidence by the plaintiff should have been excluded. The-fourth, fifth and sixth instructions given at the instance of defendant are palpably erroneous and should have been refused.

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

Reversed and remanded.


author: Mr. Justice Baume

text:
    Joe Jacobs, Appellee, v. Electric Coal Company, Appellant.
    1. Evidence—what competent by way of impeachment. A proper foundation having first been made upon cross examination of a witness, a writing containing statements contradictory to his testimony given is competent for purposes of impeachment.
    2. Instructions—misleading. An instruction which tends to mislead the jury is improper and constitutes ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    O. M. Jones and Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Thomas A. Graham, for appellee; Frank W. Jones, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

The plaintiff recovered a verdict and judgment against the defendant in the Circuit Court of Vermilion county for $250 as damages for personal injuries alleged to have been occasioned by the wilful failure of the defendant to comply with certain provisions of the Mines and Miners Act, to reverse which judgment the defendant prosecutes this appeal.

The cause was submitted to the jury upon the first and second additional counts of the declaration. The first additional count alleges in substance, that in the usual course of his employment it was necessary for the plaintiff to be on a trip of cars drawn by mules in the second southeast entry of defendant’s mine;.that defendant wilfully permitted plaintiff to enter said mine and entry to work as aforesaid without being under the direction of its mine manager, when a dangerous and unsafe condition existed in said entry caused by allowing dirt and other material to accumulate in the track between the rails, which formed a hump in the middle of the track, which hump would cause the hitching of cars to disconnect by said hitchings striking and dragging on said hump; that by reason of defendant wilfully permitting him to enter the mine to work as aforesaid, while said dangerous condition existed, plaintiff, while in the usual course of his employment in hauling coal along said track, riding on the front end of his' trip of cars, ran into a car standing on said track at the point aforesaid, which car had broken loose and become disconnected from a trip of cars which preceded the plaintiff , because of said unsafe and dangerous condition, in consequence of which plaintiff was injured, etc. The second additional count alleges the existence of the like unsafe and dangerous condition of the track in defendant’s mine; that on the day plaintiff was injured the defendant’s mine examiner wilfully failed to place a conspicuous mark thereat as notice to all men to keep out, and wilfully failed to report his finding to the mine examiner; and that by reason of the wilful failure of defendant’s mine examiner in that respect the plaintiff was injured as set forth in the first additional count of the declaration.

Upon the issues of fact involved it is sufficient to say that the evidence is close and conflicting and that if no errors of law had intervened which, considered as a whole, were prejudicial to defendant, we would not be warranted in holding that the verdict should be set aside either for the want of evidence or as being against the manifest weight of the evidence.

■ Oscar West who was the main witness called by the plaintiff to show that the hitching device upon the car which became detached from the trip was uncoupled by coming in contact with the dirt which the defendant had permitted to accumulate upon the track, and who so testified upon his direct examination, admitted upon his cross-examination that the written statement then presented to him was made and signed by him at about the time of the injury to the plaintiff. Said written statement contained among other things the following: “I don’t know what could have caused the caito have come unhooked unless it was a chunk of coal which might have fallen off of one of the cars.” . This portion of the written statement of the witness was in direct contradiction of his testimony an°d was offered by the defendant at the close of plaintiff’s evidence in impeachment of the testimony of said witness, but upon the objection of the plaintiff such statement was excluded by the court. The proper foundation for its admission having been laid the statement was clearly competent for the purpose for which it was offered and was error to exclude the same. I. C. R. R. Co. v. Wade, 206 Ill. 523.

The first instruction offered by the plaintiff and as modified and given by the court is substantially like the third instruction given at the request of the plaintiff in Thompson v. Dering Coal Co., post, p. 289, and for the reason there stated was calculated to mislead the jury. The fourth instruction given at the instance of the plaintiff should have been limited in its application to the issues involved under the pleadings.

The fifth instruction given at the request of the plaintiff is not subject to the objection urged. The rule announced in the instruction has been approved in Mertens v. Southern Coal Co., 235 Ill. 540, and Peebles v. O’Gara Coal Co., 239 Ill. 370. The other errors assigned and argued will doubtless be obviated upon another trial of the cause.

For the reasons stated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Joe Thompson, Defendant in Error, v. Dering Coal Company, Plaintiff in Error.
    1. Damages—what essential to recovery for medical expenses. In order to recover for necessary medical and surgical services, it is incumbent upon the plaintiff in the first instance to show what amount he had paid or had become obligated to pay for such services and further that said amount was the usual and reasonable charge for like services.
    2. Mines and miners—when instruction as to demand for props misleading. The word “required” is not the legal equivalent for “demanded” and the interchangeable use of the words as applied to props is misleading.
    3. Instructions—when as to preponderance of evidence erroneous. An instruction upon this subject which wholly omits the element of the number of witnesses testifying to a fact or state of facts is erroneous where the number of the witnesses upon the respective sides is not equal.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      O. M. Jones and Charles Troup, for plaintiff in error ; Mastin & Sherlock, of counsel.
    S. M. Clark and C. H. Beckwith, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

The plaintiff, Joe Thompson, recovered a verdict and judgment in the Circuit Court of Vermilion county against the defendant, Dering Coal Company, for $1,999 as damages for personal injuries alleged to have been sustained by reason of the wilful failure of defendant to furnish props after the same were demanded by the plaintiff, whereby a large rock in the roof of the room in which the plaintiff was employed as a coal miner fell upon him. . To reverse said judgment the defendant prosecutes this writ of error.

As the judgment must be reversed and the cause remanded for another trial for error in admitting incompetent evidence and the giving of improper instructions to the jury we refrain from a discussion of the facts further than to say that the evidence bearing upon the question of defendant’s liability is extremely close and conflicting.

In the absence of any evidence as to the amount the plaintiff had paid or had become obligated to pay for medical and surgical services, Dr. Poole, a witness called for the plaintiff, and who had not attended the plaintiff, was permitted over the objection of the defendant to testify that the usual and customary charge for the medical and surgical services performed by Dr. Morehouse was $100. This was error. In order to recover for necessary medical and surgical services it was incumbent upon the plaintiff in the first instance to show what amount he had paid or had become obligated to pay for such services, and further that said amount was the usual and reasonable charge for like services. In Schmitt v. Kurrus, 234 Ill. 578, it was held that in order to recover for medical and surgical services and treatment it is necessary for the plaintiff to prove two thing’s: first, that he had paid or become liable to pay a specified amount; and second, that the charges made were the usual and reasonable charges for services of that nature; that a plaintiff can recover no more than the amount which he has paid or become liable to pay even if it is less than the usual and reasonable charge for such services and that he cannot recover more than such usual and reasonable charge even if he has paid more.

There being no competent evidence in the record upon which to base a recovery for necessary medical and surgical services the 8th instruction tendered by the plaintiff should have been refused.

The 4th instruction given at the instance of the plaintiff employs the' words “required” and “demanded” interchangeably as relating to the statutory duty of the owner or operator of a coal mine to “provide a sufficient supply of props, caps, and timber delivered on the miners’ cars at the usual place when demanded,” etc. In its common acceptation the word “required” is not a synonym for the word “demanded” as employed by the statute. The former may relate to a condition arising by implication, and is more commonly used as synonymous with “necessary,” while the latter in the sense in which it is employed in the statute relates to an express overt act. The instruction should not have been given as offered.

By the third instruction given at the request of the plaintiff the jury were informed that the preponderance of the evidence in regard to any fact or facts in issue did not necessarily depend upon the number of witnesses who testified upon opposite sides in regard to such fact or facts, and continuing, the instruction enumerated certain elements proper to be considered by the jury in determining the preponderance of the evidence, wholly omitting the number of witnesses as one of such elements. In this respect the instruction was erroneous. Lyons v. Ryerson, 242 Ill. 409.

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

Reversed and remanded.


text:
    David Hoover, Appellee, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Evidence—what does not tend to establish reasonable value of services. The reasonable value of services rendered and paid for is not established by inference or presumption from the amount paid for such services.
    2. Measure of damages—in action for injury to horses. The true measure of damages in such a case is the difference between the fair cash market value of the horses for any and all purposes before the injury and such value if any after the injury, and this necessarily includes a consideration of the fair cash market value of the horses for the purposes for which they had been used by the plaintiff.
    Action in case. Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Hogan & Wallace and Graham & Graham, for appellant.
    F. P. & J. L. Drennan, for appellee.
   Mr. Justice Baume

delivered the- opinion of the court.

This is a suit by appellee against the appellant to recover damages for injuries to a mare, alleged to have been occasioned by the negligence of appellant, together with the costs to appellee of the services of a veterinary surgeon in a fruitless attempt to cure said injuries. The trial of the cause by jury resulted in a verdict and judgment against the appellant for $212. Upon this appeal appellant only contests the amount awarded to appellee as damages.

The evidence bearing upon the question of the fair cash market value of the mare before and after the injury is in hopeless conflict. The testimony of the witnesses called by appellee tended to show that such value of the mare before the injury was from $150 to $250, and that after the injury such value of said mare was from nothing to $75, while the testimony of the witnesses called on behalf of appellant tended to show that such value of said mare before the injury was only from $50 to $75. In view of the fact that the jury were permitted to consider as a proper element of damage the cost to appellee of the services of a veterinary surgeon, amounting to $62, it is apparent that the jury awarded to appellee as his damages for the depreciation in the fair cash market value of the mare, by reason of the injuries, the sum of $150 and we should be unwarranted in holding that the damages awarded to appellee in that regard are excessive. There is evidence tending to show, and the jury were not unwarranted in finding, that appellee was directed by one Bradford, the claim agent of appellant, to procure the services of a veterinary surgeon, and that Bradford thereafter occasionally saw the mare while she was being treated. The appellee was permitted to testify over the general objection of the appellant that he had paid to the veterinary surgeon for his services in treating the mare the sum of $62. We have no doubt but that appellee was entitled to recover the reasonable value of such services incurred by him in good faith. Appellant’s general objection to the inquiry as to what amount appellee had paid the veterinary surgeon for his services was properly overruled. It is now urged for the first time that appellee failed to offer any proof that the services rendered by the veterinary surgeon were reasonably worth the amount paid by appellee therefor. We cannot agree with the insistence of appellee that in the absence of evidence to the contrary it will be presumed that the reasonable value of the services of the veterinary surgeon was the amount paid therefor, but we are of opinion that in order to preserve the question for review appellant should have raised it in the court below by a motion to strike out. the evidence relating to the payment by appellee of $62 to the veterinary surgeon, upon the ground that there was no evidence in the record that such services were reasonably worth the amount paid therefor. Schmitt v. Kurrus, 234 Ill. 578.

Appellee was entitled to recover the difference between the fair cash market value of the mare for any and all purposes, before the injury, and such value, if any, after the injury, and this necessarily included a consideration of the fair cash market value of the mare for the purpose for which she was used by appellee.

There is no error in the record which should operate to reverse the judgment and the same will therefore be affirmed.

Affirmed.


text:
    Frank Haynes, Executor, Appellant, v. Warren A. McDonald, Appellee.
    1. Landlord and tenant—when rent payable. In the absence of special custom or agreement the time of payment of rent is at' the end of the term.
    2. Descent—to whom, rent passes. Rent accruing after the death of the owner of demised premises is a chattel real and goes to the heir or devisee of such deceased owner and not to his executor or administrator. -

      Assumpsit. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Elting & Hainline, for appellant; Don P. Pennywitt, of counsel.
    Theodore B. Switzer and Flack & Lawyer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The question presented for our consideration in this appeal involves the propriety of the action of the Circuit Court of McDonough county in sustaining the demurrer interposed by the defendant to plaintiff’s declaration and in entering judgment against the plaintiff in bar of his action.

The declaration alleges in substance that the defendant, Warren A. McDonald, on, to wit, March 1, 1909, was and now is indebted to the plaintiff as executor of the last will and testament of Josiah McDonald, deceased, in the sum of $1,000 for rent accruing to Josiah McDonald in his lifetime; that the said Josiah McDonald on March 1, 1908, demised to the said defendant a certain tract or parcel of land of the said Josiah McDonald, with the appurtenances thereunto belonging for and during the term of one year next ensuing, the defendant paying to the said Josiah McDonald as rent for the same the sum of $550 by virtue of which said demise on the day first aforesaid said defendant entered into said demised premises and was possessed thereof from and thenceforth until March 1, 1909, in consideration whereof, the said defendant at the time of the said demise aforesaid then and there promised the said Josiah McDonald to pay him the said money during said term; that the said Josiah McDonald departed this life on or about the 14th day of October, 1908, seized in fee simple of the aforesaid demised premises; that the said Josiah McDonald in his lifetime made and published his last will and testament whereby he devised to the defendant the said tract of land for the term of his natural life, with remainder to the daughter of said defendant for the term of her natural life and at her death to the children of her body share and share alike, and whereby also the said testator bequeathed to his daughter Mary M. Haines the sum of $20,000; that the total amount of the personal estate of said testator exclusive of the uncollected rents on the premises demised by him in his life time was $20,093.37, and that the plaintiff as executor had paid on account of debts, legacies and costs the sum of $19,913.20, leaving in his hands $180.17; that the total liabilities of said estate amounted to $23,211.53 leaving a deficiency of personal assets, exclusive of rents, of $3,118.16; that the sum of $550 so agreed to be paid by the defendant to the said testator as rent was not devised to the defendant or to any other person by the said testator and that the plaintiff as executor is of the opinion that it would be of advantage to the said estate to collect the said unpaid rent and apply the same to the payment of debts and legacies; that since the death of the said testator the defendant being so indebted for said rent promised the plaintiff as executor to- pay the same, etc.

In the absence of any averment in the declaration of a special custom or contract as to the time of payment of the rent for the premises demised by the testator in his lifetime to the defendant for the term of one year beginning March 1, 1908, such rent was not payable until the end of the term, March 1, 1909, almost four months after the death of the testator. Dixon v. Niccolls, 39 Ill. 372; McFarlane v. Williams, 107 Ill. 33; Dauchy Iron Works v. McKim, 85 Ill. App. 584; Bradley v. Peabody Coal Co., 99 Ill. App. 427.

It is the settled law in this state that rent accruing after the death of the owner of the demised premises is a chattel real and goes to the heir or devisee of said deceased owner and not to his administrator or executor. Green v. Massie, 13 Ill. 363; Sherman v. Dutch, 16 Ill. 282; Foltz v. Prouse, 17 Ill. 487; Dixon v. Niccolls, supra, Stark v. Brown, 101 Ill. 395; LeMoyne v. Harding, 132 Ill. 23.

Tested by these well-established rules of law the declaration failed to allege a cause of action in favor of the plaintiff as executor against the defendant, and the action of the court in sustaining a demurrer to said declaration, and upon the election of the plaintiff to abide the same, in entering judgment against him in bar of his action and for costs was proper. Other questions sought to be raised by the plaintiff are not pertinent on this appeal and not, therefore, considered and determined.

The judgment of the Circuit Court was right and is affirmed.

Affirmed.


text:
    Charles Stevens, Defendant in Error, v. Hammond Coal Company, Plaintiff in Error.
    1. Variance—what not in action for injury occurring in mine. Held, that an allegation as follows: “a mule 'driver of the defendant * * * carelessly and negligently permitted two certain cars to become detached from the trip on a certain upgrade in said entry” is established by evidence that such cars drifted on the down grade of their own momentum.
    2. Master and servant—effect of acquiescence in methods and tools. If a master did not direct the use of certain tools and the adoption of certain methods by his servants in doing the work, if he has knowledge thereof and acquiesces therein he cannot disclaim responsibility.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    O. M. Jones and Charles Troup, for plaintiff in error; Mastin & Sherlock, of counsel.
    S. M. Clark and C. H. Beckwith, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court. .

This writ of error is prosecuted by the Hammond Coal Company to reverse a judgment against it in the Circuit Court of Vermilion county in favor of the plaintiff, Charles Stevens, for $800 as damages for personal injuries alleged to have been occasioned by the negligence of said coal company. The declaration alleges in substance that on March 9, 1909, the plaintiff was employed by the defendant in its coal mine in room 8 off of the second southeast entry as a coal miner, and that in and about the course of his employment in said mine it became and was necessary for the plaintiff to be in and along the first south entry off of the east main entry between the cut-off in the second south entry off of the east main entry and the first west entry off of the first south entry off of the east main entry in said mine; that it then and there became and was the duty of the defendant to use reasonable care in the hauling of cars through said entry, so as not to injure the plaintiff while passing through said entry; that while plaintiff was in said entry, at the point aforesaid, a mule driver of defendant who was not a fellow-servant of plaintiff, carelessly and negligently permitted two certain cars to become detached from the trip on a certain up grade track on said entry, near said point, and that while plaintiff was in the exercise of due care and caution said cars by reason of the carelessness of the said mule driver in permitting them to become detached from said trip rushed violently upon plaintiff and threw him upon the ground and injured him, etc. •

On the occasion of his injury the plaintiff left his working place to go to an old abandoned room for the purpose of attending to a call of nature, said room being then commonly used for that purpose by the men employed in that part of the mine. In going to said room the plaintiff necessarily had to walk in the east main entry, to a point where a cut-off or haulageway, twenty to thirty feet in length, was blasted through a horse back. Immediately before the plaintiff reached said cut-off and while he was walking toward it on a down grade he met a trip of coal cars hauled by a mule driven by one Vance going up the grade in the opposite direction. After said trip of cars had passed the plaintiff and he had entered the cut-off in the horseback he saw some cars approaching which were being pushed up the grade by another servant of the defendant. Being unable to pass between the sides of said cars and the wall of the cut-off at the point where he met said cars the plaintiff walked backwards for the purpose of reaching a point in said cut-off where there might be sufficient room for the cars to pass him, and while he was thus walking backwards he was struck and injured by two cars coming rapidly down grade from the south, which cars were detached from the trip.

It is first urged that the trial court erred in denying defendant’s motion to exclude the evidence and in refusing to give the peremptory instruction tendered by the defendant, because there was a fatal variance between the proofs and the allegation in the declaration that “a mule driver of the defendant * * * carelessly and negligently permitted two certain cars to become detached from the trip on a certain upgrade in said entry.” In mining parlance the word “trip”, or the phrase a “trip of cars”, as we understand it, is used to designate two or more coal cars and the motive power which is employed to draw or propel such cars. If, therefore, one or more cars of a “trip” or “trip of cars” become detached from the motive power it may with propriety be said that such such car or cars are detached from the “trip”. In this case the evidence introduced on behalf of the plaintiff tends to show that the cars which came down the grade from a point about sixty feet from the cut-off where the plaintiff was injured were the same cars which constituted a portion of the “trip” or “trip of cars” which passed the plaintiff on the up-grade track just before he entered the cut-off, and that the mule that hauled said cars up said grade was detached from said cars before one or both of said cars had passed over the top of the grade so as to avoid the danger of drifting on the down grade track of their own momentum. Excluding the evidence from which it appears that the mule driver, Vance, unhitched the mule from the cars it is said by counsel for defendant that there is no evidence that any cars became detached from the trip. It is uncontroverted that the cars drifted on the down grade track of their own momentum and we think it follows as a necessary inference that said cars had become detached from the trip. The motion to exclude the evidence on the ground of variance was properly overruled and the peremptory instruction tendered by defendant on the same ground was properly refused.

As bearing upon the question of plaintiff’s due care for his own safety a preponderance of the evidence tends to show that the haulage way in the cut-off was not of sufficient width to enable the plaintiff to avoid being struck by the cars in said cut-off.

It is further urged that the trial court erred in not directing a verdict for the defendant because the plaintiff at the time of his injury was not in the course of his employment nor going to or from his work, hut was acting for a purpose of his own. It is not denied that the old abandoned room where the plaintiff at the time of his injury was going to attend a call of nature was usually and customarily used for that purpose by the men employed by the defendant in the portion of the mine where said room was located, and that the route taken by the plaintiff to reach said room was the most available one for that purpose. While the purpose for which the plaintiff was going to said room was in one sense for his own convenience, it is a matter of common knowledge that such purpose was a-necessary one, and the defendant must be held to know that men in its employment and while engaged in their employment would be compelled to go to some appropriate place for such purpose. The suggestion that plaintiff could have avoided injury by using his own working place for the purpose indicated does not commend itself to the ordinarily accepted proprieties. Under the evidence in the record the defendant was chargeable with knowledge that the said room was used for the purpose indicated and must be held to have acquiesced in the use of said room for such purposes by the men in its employ. We think the facts in this case distinguish it from the cases cited by the defendant where employes were injured while merely visiting in the working place of other employes of the same master. Upon principle the case is more akin to that of Heldmaier v. Cobbs, 195 Ill. 172, where, without conceding the correctness of the proposition invoked by plaintiff in error that “If an employe ceases work and for his own convenience or pleasure goes upon a certain part of the premises other than that in which he is working he becomes a mere licensee and the master is not liable for injuries to him due to a defect in that portion of his premises,” it was held that a servant who was injured by an explosion in a boiler house while eating his dinner therein in pursuance to a direction by the master to his servants to leave their dinner buckets in said boiler house, or a suggestion by the master that it would be better for the servants to eat their dinners there, was entitled to recover for such injury notwithstanding the fact that said boiler house was not the working place of said injured servant. While in the case at bar there was no direction by the master to its servants to use the old abandoned room for the purpose indicated, nevertheless, as the master had knowledge of and acquiesced in the use of said room by its servants for such necessary purpose, such knowledge and acquiescence on the part of the master must be held to amount to an implied invitation or permission to its servants to use said room for such purpose. The plaintiff in going to said room for the purpose indicated was not a mere licensee and the trial court properly refused the motion of the" defendant to exclude the evidence from the jury upon the ground last urged by the defendant.

What we have heretofore said renders it unnecessary to discuss the assignment of error relating to the action of the court in refusing to give the 20th instruction tendered by the defendant. The instruction was properly refused.

We perceive no reversible error in the record and the judgment is affirmed.

Affirmed.


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    The Peninsular Stove Company, Appellant, v. H. T. Bagby, Appellee.
    Res judicata—effect of judgment for costs. A judgment for costs rendered against a plaintiff because of the premature commencement of the action is not a bar to a subsequent action predicated upon the same subject-matter.
    Action commenced before justice of the peace. Appeal from the County Court of Douglas county; the Hon. W. J. Dolsox, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    W. Thomas Coleman and S. S. Duhamel, for appellant.
    J. M. Newman and John H. Chadwick, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This suit was originally instituted by the plaintiff, a corporation, before a justice of the peace to recover for certain stoves and store fixtures sold and delivered to the defendant, and from a judgment there entered against the defendant, he prosecuted an appeal to the County Court of Douglas county, where a trial of the cause by the court, without a jury, resulted in a finding in favor of the defendant and judgment against the plaintiff for costs, to reverse which judgment the present appeal is prosecuted by the plaintiff.

Prior to the commencement of the present suit the plaintiff brought suit against the defendant before a justice of the peace to recover the amount here involved, which suit resulted in a judgment against the plaintiff for costs. When said first suit was commenced the debt sued for had not matured and the plaintiff’s right of action had not accrued. A judgment against the plaintiff for costs because said suit was prematurely instituted did not operate to bar the plaintiff from bringing the present suit after the claim in question had matured. Bacon v. Schepflin, 185 Ill. 122.

The stove and stove fixtures, recovery for which was sought to be had, were sold and delivered by the plaintiff to the defendant upon partly written and partly printed orders therefor signed by the defendant and by the plaintiff’s salesman, W. E. Price, wherein the terms of said sales except as to price and date of note were stated as follows: “Terms. Note 60 days from ........or 5 per cent discount for cash in 30 days. At prices named below, subject to no conditions other than named below. Not subject to countermand. No goods sent on sale. Goods shipped by railroad to be released; water shipments not insured unless specially ordered. All orders taken subject to the approval of •the house. ’ ’ Nowithstanding none of the orders involved contained any such provision or agreement the defendant was permitted to introduce parol evidence tending to show a verbal agreement between the defendant and Price, the plaintiff’s salesman, subsequent to the making of said orders, to the effect that as •plaintiff was better able than the defendant to carry over some of the stoves so ordered by the defendant,, in case the latter was not able to sell the same, the plaintiff would do so. This alleged agreement was wholly without any consideration and the evidence was clearly incompetent as tending to vary and contradict by parol the terms of a written contract of purchase and sale. As the finding of the court must necessarily have been predicated upon a consideration of such and other like incompetent evidence in the record the judgment must be reversed and the cause remanded.

Some of the stoves which were so ordered and purchased by the defendant and which remained unsold by bim he re-shipped to the plaintiff without its consent and against its protest, as in part payment upon the account. The. plaintiff refused to accept the stoves so shipped to it by the defendant, as it had the right to do under the contract of purchase. The correspondence between the parties as it appears in the record clearly indicates that the defendant sought to liquidate its indebtedness to the plaintiff by returning the stoves in lieu of giving notes or cash therefor as required by the contracts of purchase and sale. What is here said has no reference to the transaction involving the shipment by the plaintiff to the defendant of the stove designated in the record as “No. 414 Sunburst,” which was shipped by plaintiff to the defendant without any express order therefor.

For the error of the trial court in admitting incompetent evidence and because the finding of the court is not supported by the competent evidence the judgment is reversed and the cause remanded.

Reversed and remanded.


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    John Wiemer, Defendant in Error, v. George W. Temple, Plaintiff in Error.

      Verdicts—when not disturbed. A verdict will-' not be set aside on review if substantial justice has been done.
    Replevin. Error to the County Court of McLean county; the Hon. Holland A. Russell, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    Miles K. Young and Edward Peirce, for plaintiff in error.
    Hart & Fleming, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the County Court of McLean county against the defendant in an action of replevin for the possession of certain household goods and furniture. The record of a former judgment against the defendant in the same action was reviewed by this court upon a writ of error and said judgment was reversed and the cause remanded. Weimer v. Temple, 145 Ill. App. 498. The main facts in the case are sufficiently stated in the former opinion of this court.

The former judgment was reversed because of the error in certain given instructions which ignored the question of waiver and the giving of certain instructions bearing upon a question which was wholly immaterial under the issues involved.

The claim by the defendant to the right of possession of the property in question was based upon an instrument in writing executed by one A. E. Henninger designated in the former record as “Exhibit A” and in the record of the last trial as “Exhibit C”. The construction of this instrument was a question of law for the court and while in some of the instructions given at the instance of the plaintiff the construction of said instrument was erroneously submitted to the jury no harm resulted to the defendant because the construction which the jury necessarily placed upon said instrument by their verdict is in conformity with the law applicable thereto. Construing the instrument in its entirety it constituted a proposal or offer by Henninger to the defendant to sell to the latter -an undivided half interest in the property involved upon the payment by him to Henninger of such amount as might be due to Henninger in the settlement of a transaction wherein said parties were concerned, or as a sale by Henninger of an undivided one-half interest in said property to the defendant to be finally effected and consummated when the latter had paid to Henninger the amount found to be due upon such settlement.

The jury were fully warranted in finding from the evidence that although he had been frequently requested and solicited by Henninger to make settlement the defendant on various pretenses negiected and refused so to do; that at the time the defendant acquired possession of the property in question he intended to hold the same without making any settlement with Henninger; that a settlement of their transactions between the defendant and Henninger would have required the payment by the defendant of a considerable sum of money which he was wholly unable to pay; and that in consequence thereof Henninger elected to rescind said contract of sale or proposal to sell. In this state of the record the merits of the controversy here involved appear to be wholly with the plaintiff, and while the record is not free from error as regards the action of the court in giving and modifying certain instructions we are fully persuaded that no harm could have thereby resulted to the defendant, and that this controversy should now cease without further litigation which must almost necessarily finally result in favor of the plaintiff.

The judgment of the County Court will therefore be affirmed.

'Affirmed.


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    Abraham B. Huston et al., Appellees, v. City Gas & Electric Company, Appellant.
    1. Corporations—powers of public service. A public service company in the conduct of its business is empowered to make such reasonable rules and regulations as are required by good practice and as are consistent with the practical operation of its plant and to require compliance therewith by those dealing with it.
    2. Corporations'—construction of franchise ordinance. An ordinance granting a- franchise or conferring privileges upon a public service corporation is to be given a reasonable nad practical construction.
    3. Corporations—powers of public service, supplying heat. A corporation engaged in the business of supplying heat to buildings and apartments of various kinds has the right in connection with the proper and practical conduct of its business temporarily to disconnect its heating system from buildings or apartments to which it has been supplying heat.

      Bill in equity. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Schomteld, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    James W. & Edward C. Craig, W. H. Clinton and S. I. Headley, for appellant.
    F. T. O’Hair, F. W. Dundas and H. S. Tanner, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

The complainants, Abraham B. Huston and thirty-six other residents of the city of Paris, filed their bill in equity in the Circuit Court of Edgar county against the defendant, City Gas and Electric Company, alleging that said defendant was engaged in the business of furnishing gas, electric light and hot water for the heating of dwellings, offices, storerooms and buildings in said city of Paris, which hot water was conveyed by pipes leading from the plant of said defendant through and under the streets and alleys in said city to the buildings and apartments to be heated; that each of the complainants installed in their respective buildings and apartments a sufficient number of feet of radiation with the necessary and sufficient pipes connected therewith to properly and comfortably heat said buildings and apartments when connected with the pipes and mains of the defendant; that on etc., and more than five years prior thereto, the complainants and each of them by and with the consent of the defendant and in pursuance of contracts in that behalf connected their said radiators and pipes with the mains and pipes of the defendant for the purpose aforesaid and that the defendant had by means thereof during the period from October 1 to May 1 of each year furnished and provided the complainants with sufficient heat to properly and comfortably and satisfactorily heat their respective buildings and apartments; that on June 23, 1904, the city council of the city of Paris duly enacted an ordinance fixing the maximum charge to consumers for hot water heating at 17 cents per square foot per year, which amount the complainants and each of them had fully paid to the defendant. The bill further alleges on information and belief that the defendant threatens and intends, and will begin on October 1, 1909, to disconnect the pipes and radiators in complainants’ buildings and apartments so that hot water will not be conveyed thereto unless the complainants and each of them enter into a contract in writing with the defendant whereby they would be bound to install in their said buildings and apartments a large amount of additional radiation, or pay to the defendant for .such additional radiation at the rate of 17 cents per square foot per year whether such radiation was installed or not; that if the complainants are deprived of heat as threatened by the defendant it will materially depreciate the market and rental value of their buildings and apartments and will endanger the lives and health and comfort of the complainants and their families and cause great pecuniary loss to those of the complainants who are engaged in business and to those of said complainants who have rented their buildings and apartments to others for hire; that the defendant had already attempted to disconnect from its heating system the residence of the complainant, A. B. Huston, and would have so disconnected the same if it had not been prevented by the police officers of said city of Paris. The bill prays that the defendant may be restrained from disconnecting its pipes used in conveying hot water into the pipes and radiators of the complainants and from doing anything to said pipes that will prevent the hot water being so conveyed or from in any manner interfering with the pipes and radiators of the complainants. A demurrer to said bill was overruled by the court and upon its motion the defendant was given leave to answer. After answer filed the defendant moved the court to dissolve the temporary injunction theretofore issued, which motion was denied, and the complainants having filed their general replication to the answer of the defendant, the cause was heard by the court on oral and documentary evidence and a decree entered in accordance with the prayer of the bill.

The evidence in the record discloses substantially the following state of facts: The corporate organization of the defendant was effected in July, 1904, and it thereafter succeeded to the business which had theretofore been conducted in the city of Paris by the Paris Gas, Light & Coke Co. and the receivers of said company and the purchasers of the property and franchises of said company at a receiver’s sale. By an ordinance of the city of Paris passed June 23, 1904, the predecessors of the defendant were authorized and empowered to lay and maintain pipes in and across the streets, alleys and public grounds of said city for the purpose of carrying hot water for heating and domestic purposes to any building public or private, and to use and maintain the pipes theretofore laid for said purpose by the Paris Gas, Light & Coke Company upon the conditions among others that they, their successors or assigns, should furnish good service and that the maximum charge to consumers for hot water heating should not exceed 20 cents per square foot per year for less than 250 square feet of radiation, and 17 cents per square foot per year for more than 250 square feet of radiation. In almost every instance here involved the several hot water heating plants were installed during the operation of the system by the predecessors of the defendant and continued to be operated by the defendant presumably upon the terms and conditions which prevailed when the said plants were first installed. During the years •1908 and 1909 the defendant caused a complete survey of its hot water heating system and of the buildings and apartments connected therewith to be made by one Willliam Schott, an expert heating engineer, and predicated upon such surveys the defendant notified some of the complainants of the amount of square feet of radiation then installed in their buildings and apartments and the amount of square feet of radiation required to be installed therein by good practice, the amount of square feet of radiation then installed except in one instance being less than the amount required by good practice; and further notified said complainants that during the coming season it would furnish them, heat for a sum stated, being at the rate of 17 cents per square foot per year for the amount of square feet of radiation required by good practice, and guaranteed a normal temperature of from 68° to 74° provided said complainants would install the additional amount of square feet of radiation required by good practice and bring their piping system up to defendant’s specifications, and that in the event that said complainants did not care to go to the necessary expense of installing such additional radiation the defendant would furnish its regular service for the sum stated without any guarantee as to uniform temperature. There is evidence tending to show that the court was warranted in finding that the defendant threatened to disconnect the buildings and apartments of some of the complainants from its system of hot water heating unless said complainants would accede to the terms of the notice above mentioned, and that in September, 1909, the defendant excavated in front of the premises owned by the heirs at law of one Joshua Davis, for the purpose of disconnecting the heating plant in the dwelling house on said premises from its system. Abraham B. Huston and B. L. Scott, two of the complainants in the bill, are entire strangers to the controversy, being neither owners nor tenants of the premises involved, and there is no evidence in the record tending to show that H. H. Howell, F. Fern Howell, H. S. Merkle, Samuel Sholem, O. S. Jones, B. F. Cameron, I. Q. Huston, J. C. Bisser, W. T. Blackburn, W. H. Hoff, E. O. Laughlin, B. K. Shelledy, Gfeorge V. Dole and B. S. Lloyd named as complainants in the bill have any interest whatever in the controversy or will be in any manner aggrieved by the alleged threatened conduct of the defendant. The decree, therefore, in so far as it awards any relief by injunction to said parties is wholly unwarranted.

While the bill alleges that the complainants installed in their respective buildings and apartments a sufficient number of feet of radiation with the necessary and sufficient pipes connected therewith to properly and comfortably heat their said buildings and apartments when connected with the pipes of the defendant, there is not a scintilla of evidence tending to show the terms of the contracts, if any exist, between the complainants and the defendant, relative to the heating of said buildings and apartments. It does not necessarily follow from the mere allegations of the bill together with the proof offered on behalf of some of the complainants that their buildings and apartments were comfortably heated, that the defendant had contracted with said complainants to so heat their buildings and apartments.

The defendant offered to show by expert heating engineers that in estimating the amount of radiation required to properly heat a room it was necessary,to consider the wall construction, whether of wood, brick or stone; the number and size of the windows; whether the room was on the north or south side of the house; whether the house was exposed or protected; the length of the pipe from the main plant to the place where the connection is made for the room or house in question; the ventilation of the room or house; that beyond the necessary amount of hot water conveyed to a radiator any excess does not provide additional heat bnt is wasted and deprives other patrons, who are located at a greater distance from the main plant, of hot water and pressure to which they are properly entitled for the purpose of heating their buildings and apartments; and that the radiators and pipes of several of the complainants were connected with the main pipe of the defendant by pipes having a greater diameter than was necessary to convey to the buildings and apartments of said complainants the quantity of hot water required by good practice to be conveyed to the radiators therein, thereby occasioning great loss to the defendant and substantially impairing its ability to properly heat the buildings and apartments of its other patrons. While the proof so offered by the defendant was incompetent to be considered in justification of the conduct of the defendant in requiring some of the complainants to increase the amount of square feet of radiation in their buildings and apartments and upon their failure so to do to charge said complainants the maximum price fixed by the ordinance of 17 cents per square foot per year for such additional radiation required, or as justifying the defendant in permanently disconnecting the buildings and apartments of said complainants from its heating system, it was competent to be considered by the court in determining whether or not the defendant might with propriety and in accordance with, good practice in that respect temporarily disconnect said buildings and apartments from its heating system for the purpose of substituting other connections between said buildings and apartments and its system of heating so as to make such connections conform to its reasonable requirements. By the terms of the decree the defendant is restrained from disconnecting its heating system from the buildings and apartments of said complainants even temporarily for any purpose whatever.

The ordinance under which the defendant is operating its system of heating must be given a reasonable and practical construction. While the defendant may not charge more than 17 cents per square foot per year for radiation in excess of 250 square feet there is nothing in the ordinance which requires it to heat a given surface through less radiation than good practice requires, nor to convey to such radiation a greater amount of hot water than is required by good practice or is consistent with the practical operation' of its plant. The defendant although a public service corporation is entitled in the conduct of its business to make such reasonable rules and regulations as are required by good practice and as are consistent with the practical operation of its plant, and to require compliance therewith by those dealing with it.

The decree of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


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    Orlando T. Griffith, Appellant, v. James Pennington, Appellee.
    Justice of the peace—what within jurisdiction of. A justice of the peace has jurisdiction of an action for damages for an injury to a horse regardless of whether the damages sought to be recovered be direct or consequential.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Shamhart & Islet, for appellant.

      Brewer & Brewer and James W. & Edward C. Craig, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit originally instituted by the plaintiff before a justice of the peace to recover damages for an injury to his horse occasioned by a collision, whereby the shaft of a buggy in which the defendant was riding was driven into the shoulder of said horse, causing an injury which resulted in his death. The plaintiff recovered a judgment against the defendant before the justice of the peace for $165 and costs of suit, from which judgment the defendant prosecuted an appeal to the circuit court, where the cause came on for trial before a jury. At the close of all the evidence in the case the defendant moved the court to dismiss the suit for want of jurisdiction upon the ground that it was an action on the case of which the justice of the peace had no jurisdiction, and therefore the Circuit Court was without jurisdiction on appeal. The motion was granted by the court and the suit dismissed at, plaintiff’s costs. From such judgment of dismissal the plaintiff prosecutes this appeal.

It is urged by counsel for defendant that conceding the suit was improperly dismissed for want of jurisdiction no harm resulted to the plaintiff because upon the merits as disclosed by the evidence the defendant was entitled to a peremptory instruction. A careful examination of the evidence compels us to the conclusion that if the court was not without jurisdiction the consideration of the facts involved should have been submitted to the jury for their determination, and that a peremptory instruction to the jury to find the defendant not guilty would have been properly refused.

It may be conceded that generally speaking justices of the peace have no jurisdiction in actions on the case, but the statute specifically provides that justices of the peace shall have- jurisdiction in actions for damages for'taking, detaining or injuring personal property (art. 11, sec. 1, par. 2 Hurd’s Stat. 1909, p. 1383) and this jurisdiction obtains whether the damages sought to be recovered for such injury are direct or consequential. The identical question here involved has been considered and determined by this court adversely to the contention of the defendant in Skinner v. Morgan, 21 Ill. App. 209; Northrup v. Smothers, 39 Ill. App. 588; Smithley v. Snowden, 120 Ill. App. 86, and C. C. C. & St. L. Ry. Co. v. McNutt, 138 Ill. App. 66, and we are content to abide the conclusion there announced.

The trial court erred in dismissing the suit for want of jurisdiction and the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Philbrick

text:
    Fred Geiselman et al., Appellants, v. John Roddinghaus, Appellee.
    1. Agenct—when agent personally liable. If an agent acts for a principal but fails to disclose the principal or to disclose that he is acting for a principal and the person contracted with does not know that the agent is acting for the principal, then the agent becomes personally liable upon the contract.
    2. Contkacts—when custom cannot be invoiced. A custom cannot be invoked to avoid a settled rule of law.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Lane & Cooper, for appellants.
    Hill & Burlington, for appellee; H. C. Shuttle, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

Fred Geiselman and John Geiselman were partners in the business of operating a corn shelter.

John Boddinghaus was a tenant farmer upon the farm of one Ada Zimmerman in Montgomery county, Illinois. Boddinghaus rented the farm from Mrs. Zimmerman for grain rent. Upon the farm was a corn crib which belonged to Mrs. Zimmerman and in which her corn as landlord was stored.

There is a dispute as between the landlord and the tenant as to whose duty it was or upon whom the obligation of shelling the corn in this crib was placed, Boddinghaus contending that the landlord was to pay for the shelling of the corn and the landlord contending that Boddinghaus, the tenant, was to deliver the corn at the market, free of expense to her. However this may be, Boddinghaus secured appellants to shell this corn.

Appellants had no conversation whatever with Mrs. Zimmerman in regard to the shelling of the corn. > After it was shelled and when payment was asked of Boddinghaus, the tenant, he informed appellants that it was Mrs. Zimmerman’s corn and that it was her obligation and declined to pay appellants; appellants contending appellee having secured their services and that they performed the work upon his request, that he did not disclose that he was acting for or representing Mrs. Zimmerman in the matter and that by reason thereof, appellee was liable for the payment for the work done. The amount is small, involving originally only $12.50.

The cause was tried originally before a justice of the peace and twice in the Circuit Court; the last trial in the circuit court resulted in a verdict and judgment for appellee and it is to reverse that judgment this appeal is prosecuted.

The grounds urged for reversal are that the trial court erred in admitting evidence over objection of appellants regarding an alleged custom in existence in that locality as to whether the landlord or tenant should pay for the shelling of the landlord’s com and in giving erroneous instructions on behalf of appellee.

While the amount involved in this case is small and we very much dislike to disturb the finding of a jury where the amounts involved are so trifling, yet we feel that justice requires that the ease should be deterinined upon its merits. The only questions involved in this case and the only ones which should have been submitted to the jury were whether or not appellee was acting as the agent for his landlord, Mrs. Zimmerman, in the procurement of the services of appellants to shell this corn and whether or not if acting as such agent he disclosed the agency or whether or not appellants knew or were informed at the time of the employment that the corn to be shelled belonged to Mrs. Zimmerman and that appellee was acting for her.

Appellants insist that the contract was made with the tenant, Roddinghaus, and that the services of appellants were secured by him without disclosing that Roddinghaus was acting as the agent for Mrs. Zimmerman or informing appellants that the work was to be done for Mrs. Zimmerman and that appellants did not know arid were not informed that Mrs. Zimmerman was interested in any way in the procurement of the shelling of this corn, and it is upon this theory that the suit was brought and tried by appellants.

The rule of law is well settled in this state that if an agent acts for a principal and fails to disclose the principal or disclose that he is acting for a principal and the person contracted with does not know that the agent is acting for a principal, then the agent becomes liable upon the contract (Wheeler v. Reed, 36 Ill. 81; Scaling v. Knollin, 94 Ill. App. 443; Loehde v. Halsey, 88 Ill. App. 452), and recovery may be had from the agent, and in this case if the employment was made as insisted upon by appellants, and appellee did not disclose that he was acting for Mrs. Zimmerman and did not inform appellants Mrs. Zimmerman was to pay the price of the shelling, and appellants did not know that Roddinghaus was acting as the agent for Mrs. Zimmerman in this transaction, then the question of the rights of the parties must be determined solely upon the contract and no custom, even if one did exist as is claimed by appellee, conld affect the rights of the parties herein. A custom cannot be invoked to avoid a settled rule of law (Entwhistle v. Henke, 211 Ill. 273, Bissell v. Ryan, 23 Ill. 517), and it was error in the trial court to admit evidence of the alleged custom, and the court erred in instructing the jury in regard to such alleged custom. For these errors the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Trustees of Schools, Pike County, Appellee, v. Joshua R. Otwell, Appellant.
    Statute of Limitations—when runs against municipal corporations. While it is a general rule of law that the statute of limitations does not run against the general public or against municipal bodies, where the property is held generally for the public use and where the bodies to which it belongs are created for local governmental agency regarding the public rights, yet where such property is loaned as private property (in this case money was loaned pursuant to legislative authority to private individuals), the statute of limitations is effective by way of defense.
    Assumpsit. Appeal from the Circuit Court of Pike county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Jefferson Orr and A. G. Crawford, for appellant.
    Williams & Williams and Bradburn & Bradburn, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

On October 13, 1882, Michael Fisher, A. J. Otwell and Joshua B. Otwell made and executed their promissory note, payable two years after date to the Board of Trustees of Schools, township No. 7, south, range No. 2 west of the second P. M., Pike county, Illinois, for the principal sum of $32.12, bearing eight per cent, interest. Suit was brought upon this note in the name of the Trustees of Schools of that Township against all the makers of the note.

The declaration upon which the cause was tried contained one special count which set forth the execution of the note and alleged liability existing thereunder and that the note was given for a loan of money from the permanent school fund of that township, the declaration containing common counts with an account stated.

The defendants filed general issue and special pleas of the statute of limitations. The first special plea was a plea of the statute of limitations as to all of the said sum claimed excepting the principal of $32.12, and averring that the interest that was claimed upon” the principal and being all of the sum in excess of $32.12 did not accrue to the plaintiff within ten years before the commencement of suit, etc.

The second special plea was a plea of the statute of limitations as to the entire cause of action.

The third special plea .was a plea of payment.

The fourth plea set forth the bar of the statute of limitations denying that the principal of said note was any part of the permanent school fund of the township.

The fifth and sixth special pleas were in substance the same as the first special plea. Appellee demurred to all of the special pleas and the court sustained the demurrer to all excepting the third, the plea of payment, and to it the demurrer was overruled.

Appellant elected to stand by the pleas, to which the demurrer was sustained, and assigns as error the judgment of the court in sustaining the demurrer.

The only evidence offered on the part of appellee was the note together with the computation of interest as made by the county superintendent of schools, with his testimony as to the total amount that was due.

A jury was waived and the cause was tried by the court without a jury.

Numerous propositions of law were submitted to the court by defendants and all were refused. Upon the trial the finding of the court was in favor of appellee and upon that finding the.court rendered judgment against Joshua R. Otwell.

While there are numerous assignments of error, the only question argued by appellant is upon the ruling, of the court in sustaining the demurrer to the various pleas of the statute of limitations, and under the rules of this court all other errors assigned are deemed waived, and the only question left for this court to consider is the ruling of the trial court in sustaining the demurrer to the pleas.

Appellant urges as a cause of reversal that the fund sought' to be recovered is not a part of the public school fund of the township and being an ordinary action to recover money the statute of limitations applies, that the pleas were properly pleaded, and that the demurrer should have been overruled by the trial court; appellee insisting upon the other hand that the principal sum of this money belonged to the permanent school fund of the township and was a trust fund in which the general public was interested and the suit being brought to recover a part of the permanent public school fund, in which the people of the state were interested, the statute of limitations does not bar a recovery and that the demurrer was properly sustained.

While it is a general rule of law that the statute of limitations does not run against the general public or against municipal bodies, where the property is held generally for the public use and where the bodies to which it belongs are created for local governmental agency regarding the public rights, but it has not been held in this state that the statute does not run and is not a proper plea in bar where the rights in the property Eire merely local or of a private character.

The Supreme Court of this state has held that although the funds are trust funds, while in the hands of the trustees, if they are .loaned out to private individuals this trust character of the fund is changed, and the contract entered into in loaning the funds becomes the same as any other contract, and is then subject to the statute of limitations and, the school fund held by the trustees of schools for the use of a particular township becomes to that extent a private fund for the use and rights of the schools of that township alone and it is not a fund in which the general public of the state is interested. Brown v. Trustees of Schools, 224 Ill. 184.

Appellee cites numerous cases in which it has been-held that the statute of limitations did not run but upon an examination of these cases it is disclosed that in each instance the action was one in which the people of the state as a general public were interested, or in which the suit was by a political division organized for the purpose of governmental agencies and affected only public rights.

It is insisted by appellee in its argument that the principal of this fund, $32.12, was a portion of the public school fund, derived from the sale of a portion of section 16 of the school lands of the State of Illinois and that by reason thereof that fund is a trust fund for the general benefit of the public schools of the state, generally, and to that extent the general public is interested in the fund and, therefore, the statute of limitations does not bar a recovery as to that amount; it is sufficient to say in answer to this contention that there is no evidence in this record showing that this fund is any part of the permanent school fund of the state, nor is there any evidence showing from what source the fund loaned to appellants was originally derived; conceding, however, that it was a part of the fund derived from the sale of school lands of the state and was a trust fund in the hands of the trustees of schools, when the Legislature authorized this fund to be loaned to private individuals as to those individuals the fund lost its trust capacity and under the decisions of the Supreme Court of this state the statute of limitations is applicable in an action to recover it the same as to any other contract.

The trial court should have overruled the demurrer to the pleas of the statute of limitations and it was error to sustain it and the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


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    Timothy Enright, Jr., Appellee, v. Toledo, Peoria & Western Railway Company, Appellant.
    Measure of damages—in action for destruction of growing crops. In such a ease the proper measure of damages is the rental value of the ground together with the reasonable value of the seed and labor expended in bringing the crop to the point at which it was destroyed, and it is error to adopt as the measure in such a case damages predicated upon the amount of corn that might have been raised upon the land during the period in question with its price or prices in the fall or falls following maturity.
    Action in case. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Stevens, Miller & Elliott and Barry & Morrissey, for appellant.
    D. D. Donahue and J. F. Bosworth, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant for the recovery of damages for the destruction of growing crops by being drowned out through the alleged negligence or misconduct of appellant in the destruction of certain tile across the right of way of appellant company which drained appellee’s, land at the point where the injury is complained of.

Trial below resulted in a verdict and judgment against appellant for $300. This appeal is prosecuted to reverse that judgment.

The record discloses that some twelve or fifteen years ago, a definite time not being ascertained, the father of appellee constructed a tile drain across the right of way of appellant with the permission of appellant. This tile was laid a part of the way under a bridge under appellant’s track. A number of years after this tile was laid appellant removed the bridge and placed an iron pipe in its place for the purpose of permitting the surface water to pass through the embankment of appellant’s right of way; this iron piping was placed an inch or two above the surface of the ground at this point and the embankment filled in over it. For five or six years thereafter no complaint was made and no damages occasioned, but after the expiration of some five or six years the tile, in some way, ceased or refused to act and as a consequence water accumulated at certain times upon the land then farmed by appellee.

This action is for the recovery of the destruction of three crops of corn, during the years 1903, ’04 and ’05. Appellee is a lessee of the land and the first complaint of destruction of any crop is for the year 1903, when it is alleged about one acre was destroyed. For the succeeding years it is insisted considerable more damage was caused. The iron piping, according to appellee’s testimony, was put in from four, to six years before any damage occurred, and the injury is alleged or claimed to have been caused by the settling of this iron pipe and by reason of the settling, crushing and destroying the tile and thus preventing its operation.

The record further discloses that the tile, extending from the end of the iron pipe laid by appellant, and which extended for a considerable distance out into and across the right of way towards the land which appellee was farming, as well as that under the embankment, was crushed and broken and in such condition that water would not pass through it, and there is no contention that appellant was responsible in any way for the condition that existed away from the iron piping and embankment; appellee does not contend that this condition was brought about in any manner, or could any obstruction at this place have been brought about by reason of the alleged settling of the iron piping.

The record further discloses that the iron piping always remained an inch or two above the surface of the ground and there is no evidence in the record that the crushing or damaging, the injury of the tile, was caused by the settling of this pipe. There is no attempt on the part of appellee to account for the breaking or destruction of the tile away from the embankment and the iron piping. This tile had been in the ground some twelve or fifteen years, or more, and the fact that it was crushed and broken at other places than under the iron piping and embankment would indicate that some other cause brought about the destruction of' the tile.

Upon the trial of this cause appellee insisted, and the court permitted him to show, as a measure of damages, the estimated value of the crop, if it had matured and had been gathered in the fall. The am mint, of grain that could have been raised was merely conjecture. Appellee was also permitted to show the price of grain in the fall, over objection of appellant. The record discloses that the corn was destroyed in the spring of the year, when it was not to exceed six to eight inches in height and at this time it was of no market value whatever. The proper measure of damages in a case of this character is the rental value of the ground together with the reasonable value of the seed and labor expended in bringing the crop to the point at which it was destroyed; and the trial court erred in adopting as a measure of damages the amount of corn that might have been raised on this land for three years, with its price in the following fall after maturity.

The instructions in the case given by the court upon behalf of appellee followed the evidence of the measure of damages permitted by the court; consequently the court erred in giving these instructions and for these errors the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


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    Ada Heller, Appellant, v. Sarah Schwarz et al., Appellees.

      Wills—policy as to vesting of estates. It is not the policy of our law to favor the abeyance of estates; estates will be deemed to vest upon the death of the testator unless very clear words are found in the will evincing that it was the manifest intention of the testator that the estate should not vest except on the happening of a certain contingency.
    Bill to construe will, etc. Appeal from the Circuit Court of Jersey county; the Hon. J. A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.

      Hamilton & Hamilton, for appellant.
    W. T. Sumner (Charles S. White, guardian ad litem), for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

One Thomas Marshall in his lifetime was seized in fee simple of lots five and six in block 25 in the city of Jerseyville, in the county of Jersey and state of Illinois. He died May 20, 1889. His will bears date March 23,1888, and was duly admitted to probate.

The fifth clause of testator’s will is as follows:

“I give and devise to Susan White, Lots Five (5) and Six (6) in Block Twenty-five (25), in the City of Jerseyville, in the county of Jersey and State of Illinois, for and during her natural life, and after her death I direct that said Lots Five (5) and Six (6) be sold and the proceeds divided equally between the children of said Susan White.”

At the time of his death Thomas Marshall, testator, left surviving him Susan White, who at the time of the. death of testator had the following living children: William H. White, Bode Kelley, Ada Heller and Sarah A. Schwarz. Susan White, to whom the life estate was devised, died April 3, 1909. After the death of Thomas Marshall, May 20, 1889, and before the death of Susan White, April 3, 1909, William H. White, her son, died, December 1, 1908, and left surviving him Mary E. White, his widow, Alice White, Edna White and Charles W. White, his children and only heirs.

Bode Kelley died August 15, 1892, leaving surviving her Norris F. Kefiey, her husband, but left no child or descendants of child or children; Norris F. Kelley, her surviving husband, died August 4, 1908, leaving William V. Kelley, his son by a former marriage as his only heir at law.

At the time of the death of Susan White, April 3, 1909, she left surviving her Sarah A. Schwarz and Ada Heller, her only surviving children.

The bill in this cause is filed by Sarah A. Schwarz asking that the proceeds of the real estate may be determined, the will construed and a trustee appointed to sell the real estate and divide the proceeds among those entitled thereto.

The decree rendered by the chancellor below found that by the fifth clause of this will Susan White was devised a life estate in these premises and that immediately upon the death of Thomas Marshall the four children of Susan White, being William H. White, Bode Kelley, Ada Heller and Sarah A. Schwarz, became vested in equal parts with the fee of said lots, subject, however, to the life estate of Susan White and that the estate devised to them by this will became vested immediately upon the death of Thomas Marshall.

Ada Heller, appellant herein, brings the cause to this court on appeál and assigns as error the rendition of the decree by the chancellor; contending that the estate did not vest in the four children of Susan White upon the death of Thomas Marshall, but vested in Sarah A. Schwarz and appellant, Ada Heller, upon the death of their mother, Susan White; and that the heirs of Bode Kelley and William IT. White have no interest therein.

There is no other clause in the will which in any manner affects the taking effect of clause five in accordance with the conditions and terms set forth in that clause.

In the case of Knight v. Pottgieser, 176 Ill. 368, the Supreme Court of this state in construing a will almost identical with the one at bar says:

“It is not the policy of our law to favor the abeyance of estates, and for this reason it long ago became a fixed rule to be observed in the construction of wills in the courts of America and England, that estates should be deemed to vest upon the death of the testator unless very clear words were found in the will evincing that it was the manifest intention of the testator that the estate should not vest except on the happening of a certain contingency.”

That case is decisive of the question involved in this controversy.

It is the rule of law, well established in this state, that a fee cannot be held in abeyance and that it must be vested in some person. This will vested the estate in the- children of Susan White, who were living at the time of the- death of Thomas Marshall; it became a vested, not a contingent interest, the enjoyment of the estate being only postponed during the lifetime of Susan White. Scofield v. Olcott, 120 Ill. 362; Clark v. Shawen, 190 Ill. 47; Dwyer v. Cahill, 228 Ill. 617.

The fact that this clause of the will directed the estate to be sold upon the death of Susan White, and the proceeds then divided does not affect, in any manner, the time when the interests of the parties attached to the estate under this will, it being the clear intention of the testator that the children of Susan White should receive the proceeds of this land and the devise was made for the purpose of vesting them with its proceeds. While this devise was an equitable conversion of the real estate, under the rule of law that a fee,cannot be held in abeyance, and there being no other devise of the fee, it became vested in the children of Susan White immediately upon the death of the testator, subject to being converted into personal property upon her death to be then distributed according to the terms of the will.

It is insisted however by appellant that the case of Strode v. McCormick, 158 Ill. 142, controls in this case. Upon examination of that case it will be found that the conveyance therein was made by James M. Strode to certain trustees whereby the trustees became vested with the fee and were authorized and directed to collect the rents, issues and profits for the sole use of Mary B. Strode during her lifetime and upon her death to dispose of said lot and its appurtenances and divide the proceeds equally among the children of James M. Strode, the issue of his marriage with Mary B. Strode, share and share alike. By this deed the children of James M. Strode at the time of the conveyance took no interest in the premises of any kind or character, the trustees holding the fee until the time of the death of Mary B. Strode with directions that at that time they sell the premises and divide the proceeds among his children; there was no provision in the deed by which any person other than children could take a portion of the premises and it was held that grandchildren could not be included in the distribution, but in the case at bar the' children of Susan White, living at the time of the death of Thomas Marshall, became vested with the interest in the estate, subject to the life estate of Susan White and on their death that vested interest descended to their respective heirs.

The learned chancellor was correct in the decree rendered herein and properly found that the proceeds of the real estate should be divided as directed: one-fourth to Ada Heller and Sarah A. Schwarz each, as . surviving children of Susan White; one-fourth to Sarah A. Schwarz administratrix of the estate of Norris F. Kelley; and one-fourth to be divided equally among the children of William E. White.

There being no error in the decree it is affirmed.

Affirmed.