text:
    The People ex rel. William H. Stead, Attorney General, Appellee, v. Anthony Billburg, Appellant.
    Gen. No. 5,661.
    1. Injunctions—act punishable as crime. Equity has jurisdiction to enjoin a public nuisance, though the act constituting the nuisance is also a crime.
    2. Dramshops—public nuisance. Conducting a saloon without a license is a public nuisance under section 7 of the Dramshop Act.
    3. Injunction—to abate unlicensed saloon. An action will lie in the name of the public, to enjoin a person from keeping an unlicensed saloon opposite a public park, where drunken men and dissolute women are accustomed to go from the saloon into the park and interfere with the enjoyment thereof.
    Injunction. Appeal from the Circuit Court of Rock Island county; the Hon. Prank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    John Looney and J. T. & S. E. Kenworthy, for appellant.
    William H. Stead, L. M. Magill, James F. Wetter, Joseph L. Haas and Jackson, Hurst & Stafford, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The attorney-general filed an information in equity in the name of the People against Anthony W. Bill-burg, and thereunder obtained a temporary injunction restraining Billburg and his employees from selling any intoxicating liquor upon his restaurant premises at No. 223 Twentieth street in the city of Eock Island in less quantities than one gallon, to be drunk upon said restaurant premises, until said Billburg shall be licensed to conduct a dramshop in said restaurant premises by the city of Eock Island. This is an appeal by Billburg from that order.

The bill alleges that appellant formerly ran a restaurant at No. 223 and a saloon at No. 221 adjoining the restaurant on said Twentieth street, and that he sold intoxicating liquors at both places although he only had a license to sell at No. 221, and that thereafter the city authorities refused him a license to further conduct a saloon at No. 221, and that afterwards a license was issued to another person to conduct a saloon at No. 221, and that thereafter, notwithstanding appellant had no license to conduct a saloon in Bock Island, he continued to serve liquors at his restaurant at No. 223; that there was a door through the wall between Nos. 221 and 223 and he procured liquors from the saloon in No. 221 and kept them in an ice box in No. 223 and there served them to his patrons, and declared he will continue to do so. The hill also charges that appellant also conducted said No. 223 as a gambling house and as a house of assignation; and that this is directly opposite and across the street from a public park established by the city of Bock Island and which had been beautified and fitted up to be a place of public resort by the expenditure of much money, and that drunken men and women of ill fame were accustomed to go from appellant’s place at No. 223 across the street into the park and occupy the seats therein, and thereby destroyed the usefulness of said park to the general public, and that said restaurant saloon is a nuisance. Affidavits filed with the hill disclosed a very immoral condition at this restaurant. They showed that not more than five per cent, of the people who frequented appellant’s place bought any food, but that its almost entire use was as a place to sell liquor and a place for gambling and a place for prostitutes to solicit men, there being rooms provided above by appellant for their use. Before the injunction was granted, an amendment was filed which enlarged upon the character of the park and the injury to the public, hut as it was not verified by an affidavit of its truth, it will be disregarded.

Appellant contends that a court of equity has no jurisdiction to enjoin a crime, and that that is all that is done by this injunction. A court of equity has jurisdiction to enjoin a public nuisance at the suit of the public; whom- the attorney-general here represents, and the fact that the act may also be a crime does not deprive a court of equity of jurisdiction, as held in Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385; Cella v. People, 112 Ill. App. 376, and other cases there cited. The matter here litigated is hardly -open to discussion, since the decision in Hoyt v. McLaughlin, 250 Ill. 442, where it was held that a private person who was injured in his property rights by a saloon conducted without a lawful license could have an injunction to restrain the conduct of the saloon, and that if there is no private or special injury caused to an individual, action to abate the nuisance may be instituted by or in the name of the public. Section 7 of the Dramshop Act makes this place a nuisance because not protected by a license and because of the unlawful business there carried on. The facts alleged show that the use by the public of a beautiful park across the street is destroyed by the use thereof by drunken men and dissolute women who go there directly from appellant’s place of business. The law holds the keeper of a disorderly house responsible for disorderly conduct in and about the house and even for disorderly acts outside" of the house by persons who became intoxicated therein. 14 Cyc. 487. Appellant contends that a prosecution under the dramshop Act is the only remedy of the public, and that by the course here pursued appellant is deprived of a trial by jury. The same criticisms would apply in Hoyt v. McLaughlin, supra, and the court there had the provisions of the Dramshop Act before it. It is obvious that in this condition of judicial decision in this State, this injunction was properly granted.

The order is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Presiding Justice Dibell

license: Public Domain

text:
    Patrick Carney, Appellee, v. Marquette Third Vein Coal Company, Appellant.
    Gen. No. 5,673.
    1. Mines and miners—pleading. Common law counts in a declaration in an action for personal injuries sustained in a mine, negative the assumption of risk where they aver that plaintiff did not know of the danger, and had not the same means of knowing as the owner, defendant, who did know thereof, or by the exercise of ordinary care should have known.
    2. Mines and miners—evidence. Where the evidence tends to show that the roof of a certain room in a mine was in a dangerous condition, and that a mule driver, while unfastening the harness of the rear mule, which had been caught on a projecting rock in such room which had become very narrow at that point, was kicked by the lead mule, the finding of the jury that the dangerous condition of the roof was the proximate cause of the injury and that there was no assumption of risk, will not be disturbed.
    3. Mines and miners—variance. Where it is averred in the declaration that plaintiff, an employee, did not know the dangerous condition of the mine, but that the owner did, or should have known, etc., and the proof shows that plaintiff had spoken to the owner in regard to such condition and resumed work on the promise that the same would remedied, ^uch lack of entire harmony between averment and proof, will not be sufficient to reverse a meritorious judgment.
    4. Instructions—abstract. It is not error to give an instruction, which is merely a general statement of law, where the same is not misleading.
    5. Instruction—must be limited to the counts to which it applies. An instruction which is general and not limited to the counts to which it applies is properly refused.
    6. Damages—when not excessive. A verdict of $6,000 for personal injuries sustained by a mule driver in a mine, is not excessive where it appears that plaintiff was in a hospital for a long time,, that he had lost the use of one eye, that he had suffered and still suffers constant pain in his head, and that he was seriously injured and under medical treatment for some time.
    Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. S. C. Stough, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.

      M. A. Walsh and Cairo A. Trimble, for appellant; B. M. Chiperfield, of counsel.
    Duncan, Doyle & O’Conor, for appellee.
   Me. Presiding Justice Dibell

delivered the opinion of the court.

Patrick Carney sued appellant for injuries received by him while working as mule driver for appellant in appellant’s mine. The pleadings were a declaration consisting of three counts charging common law negligence, and a fourth count charging a wilful violation of the mining* act; three additional counts, charging common law negligence, and a fourth additional count charging* a wilful violation of the statute; and the general issue. Upon a jury trial plaintiff had a verdict and a judgment for $6,000, from which defendant below appeals. Appellant claims that the common-law counts do not negative the assumption of risk by appellee; that each count fails to show that the matter complained of in that count caused the injury to appellee; that under the evidence appellee assumed the risk; that the evidence fails to show that the matters complained of caused the injury; that because of such absence of allegation and evidence- there are various errors in the instructions; and that the judgment is excessive.

Appellee was driving two mules tandem into a certain room for the purpose of there turning them around and attaching* them to a car of coal and hauling said car out to an entry way. The mules are driven by word of the driver without lines. This room or place was about four feet wide and there had been a constant settling* of the roof, so that it was arched and' therefore much narrower than four feet towards the top, and the upper part of the space through which the mules had to pass had been cut out and was only about one foot wide. The mules were higher than the space and they were obliged to bend their knees or to crouch down to get through. The only light was from the lamp on appellees cap. By the squeeze the upper part of the way had become rough and jagged. When appellee had nearly reached the place where the roof was a little wider so that the mules by crouching could turn and face outward and change places, so that the lead mule going in should also be the lead mule coming out, the hames of the rear or breach mule caught on a projecting rock in the upper part of the passage and that mule became fast. Appellee stepped in and tried to extricate the hames and was kicked by the lead mule and knocked down and his cap and light were knocked off and he became unconscious. Another man came and extricated the mules and took them away and appellee was removed from the mine.

Each common-law count alleged ,that appellee did not know the danger and had not the same means as appellant of ascertaining it, while appellant did know the danger, or by the exercise of ordinary care should have known it. If these allegations were true, appellee did not assume the risk. Each count of the declaration, when it is examined in full in the record, will be found to charge that the injury was by reason of the negligence of appellant in the common law counts, or by reason of the wilful violation of the statute, alleged in the fourth original and the fourth additional counts. The claim therefore that the declaration does not state a cause of action in any count is not well founded. Appellant urgently contends that appellee was not injured by the dangerous condition of the roof and by the breach mule being caught therein, but that he was injured solely by being kicked by the lead mule and that he assumed that risk, and that there is no charge that the mule was unruly or vicious. We think it clear from the evidence that the projecting rock catching upon the hames and holding the rear mule as the other mule was turning around was what alarmed the lead mule and caused him to kick. There is no evidence that the lead mule was vicious and it was a question for the jury whether the projecting rock was the cause of all that followed, and we do not feel warranted in disturbing their conclusion, and the same remark applies to the alleged assumption of risk. The 4th original and the 4th additional counts charged that the appellant failed to have this place properly examined and failed to mark this dangerous place and failed to cause an entry thereof to be made a matter of record for the inspection of the men before they entered the mine in the morning. It was shown that the only inspection was from a considerable distance away and without a sufficient light to show the jagged condition of this roof and that the dangerous conditions were not marked nor recorded. The jury were clearly warranted in finding for appellee under those counts.

The only difficulty we see in the pleadings and evidence is this: the declaration in each common law count charges that appellee did not know of the danger and had not equal opportunity with his master to know it and that appellant did know it or should have known it by the exercise of ordinary care, while the evidence is that appellee knew of the squeeze and of the smallness of the space through which he and the mules had to pass and several times complained thereof to his superior and received promises that the roof should be brushed and mended and received orders to continue and assurances which meant that it was safe for him to do so, and that the last of those complaints and promises and assurances was about four hours before he was hurt. Each common-law count of the declaration contained averments which negative the assumption of risk. The proofs negative the assumption of risk, but in a different manner from what was averred in the common law counts. We conclude that this lack of entire harmony between averment and proof should not reverse a meritorious judgment.

It is insisted that the first instruction, given at the request of appellee, is erroneous because it applies to all the counts of the declaration. In fact, it is expressly limited to the 4th additional count, and it states the law in the language of the statute, and is correct as applied to the 4th additional count. Complaint is made of the 2nd instruction. It correctly defines what is meant hy wilful disregard of the mining act. It might well have been refused, because it is a general statement of the law, not applied to the case, but while it is not error to refuse such an instruction, it also is not error to give it, if it is not misleading. We regard the criticism upon the 3rd given instruction as unwarranted. Complaint is made of the 6th and 8th instructions, relating to the measure of damages. We are of opinion that they are correct. Complaint is made of the refusal by the court of the 26th, 29th and 32nd instructions, requested by appellant. They were made general and were liable to be understood by the jury to apply to each count of the declaration. They are entirely improper as applied to the statutory counts and were therefore properly refused. The 32nd instruction is also erroneous in its concluding words, to-wit: “Begardless of the fact that the harness did not catch in the roof.” Not only, was it improper to ask the court to tell the jury what the facts were, but also the evidence is undisputed that the harness did catch in the roof.

Appellee was seriously injured. He was under medical treatment for some time. He was in the Eye and Ear Infirmary in Chicago for a long time. He has completely lost the use of one eye and has suffered great pain and still suffers constant pain in his head. Appellant contends that the highest verdict that can be sustained for the loss of an eye is $1,500 but we are unable to concur in that contention. Some rulings of the court upon the evidence are criticised, but we think them unimportant.

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

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    Benjamin C. Awe, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    den. No. 5,676.
    1. Railboads—duty to repair fence. Where a fence along a railroad’s right of way has been found with the wires down at the place where skaters habitually leave the right of way to proceed to a frozen pond, and has been repaired by employees on numerous occasions, the company must know the damage is caused by the skaters, and to relieve itself from liability, as to animals straying on the track, it must either put the fence in repair each evening after the skating is over, or else prevent the damage to the fence by prosecutions, or by some other effective methods.
    2. Railboads'—evidence as to cause of injury to animals. Where there is a hole in a railroad’s right of way fence, and there are tracks of three horses on the snow on the railroad track, and one horse is found dead on the track, another uninjured near the track, and a third horse is found in the owner’s pasture with a broken leg, and is killed by order of a section foreman, a jury is warranted in finding that the horse with the broken leg was injured by the company, and was not injured by falling on a frozen pond in the pasture.
    3. Railboads—when liable for fire on right of way. Evidence was conflicting as to where a fire started and as to its cause, but the fire when first seen was burning on a railroad’s right of way, spreading to an adjoining pasture. There was dry grass and weeds on the right of way that had not been burned over that fall. A train of another company had passed over other tracks a short time before, but the wind was not blowing from that direction, and no person but a section hand of the defendant had passed along the track. Held, a verdict for the owner of the pasture should be sustained.
    4. Railboads—when liable for fire on right of way. Evidence was conflicting as to the origin of a fire that when first seen was burning on a railroad’s right of way, spreading to an adjoining pasture. The engine supposed to be responsible was equipped with the most approved spark arrestors. A heavy freight train passed a few minutes before the fire was seen and the engine was working hard. The right of way was grown up with grass and weeds and was burning that afternoon, and there was other evidence that the right of way had been burned over a few days before. Held, a verdict for the owner of the pasture should he sustained.

      5. Damages—excessive. Six dollars damages is not excessive where grass on two acres of pasture land is destroyed by a fire spreading from a railroad’s right of way.
    Aption in the case. Appeal from the Circuit Court of De Kalb county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Faissler & Fulton, for appellant; O. W. Dynes, of counsel.
    George Brown and H. S. Earley, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is an action on the case brought by Benjamin C. Awe against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for the alleged killing of three horses on January 13, 1908, and for injury by fire on October 17, 1908, to two pieces of pasture land owned by said Awe. The declaration contained four counts. The first and second counts charged that the railway company, regardless of the statute, did not maintain in good repair a fence along its right of way and adjacent to the lands of Awe, suitable and sufficient to prevent horses from going upon said right of way, and that by means of defects therein, certain horses, the property of said Awe, strayed upon the railroad and were killed. The third count alleged that the defendant, in violation of the statute, suffered large quantities of dry grass and weeds to accumulate and remain on its right of way; by means whereof fire thrown from a certain locomotive on said railroad ignited said dry grass and weeds and was communicated to the farm and pasture land of plaintiff and the grass growing thereon, whereby said pasture was burned over and the grass growing thereon was destroyed and wholly lost to plaintiff. The fourth count charged that, while a certain locomotive of defendant was passing along said railroad by the pasture land of plaintiff, certain sparks and fire escaped and were thrown from said locomotive and set fire to and burned said pasture land, etc. Defendant pleaded the general issue. There was a jury trial and a verdict for plaintiff for $475 for the horses, $18 for the effect of the fire on the north side of the railroad, and $6 for the effect of the fire on the south side which they reformed into a verdict for $499, on which there was a judgment for plaintiff for $499, from which defendant below appeals.

Appellee owned farm lands west of the village of Genoa, in DeKalb county. The railroad of appellant runs east and west through the village of Genoa and the lands of appellee lie both north and south of its right of way. The railroad of the Illinois Central Eailroad Company runs northwesterly and southeasterly, crossing the line of appellant near the village of Genoa, but all of appellee’s land lies west of the Illinois Central. During the months of November and December, 1907, and January, 1908, appellee placed some horses on his land south of appellant’s right of way for winter pasture and during the night following Sunday, January 12, 1908, some of said horses strayed upon the railroad right of way and track. The next morning two of them were found dead, one was found in appellee’s pasture with its leg broken and it was put to death thereafter, and a fourth horse was found on the right of way uninjured. It is the claim of appellee that the horses went upon the right of way through a breach in the fence which appellant in the exercise of due care should have found and which, under the statute, it was required to keep in repair, and that the death of the horses was due to the failure of appellant to obey the statute in that respect.

The evidence shows that there was a large pond in appellee’s pasture land, south of appellant’s right of way, and that during the winter months many persons from the village of Genoa were accustomed to skate thereon. It had become the habit of such skaters to walk along the right of way of appellant from the village of Genoa until a point was reached opposite the pond in appellee’s land, when they left the right of way and proceeded, through the fence, to the pond. The evidence shows that these skaters made an opening in the fence by fastening! the second wire from the top to the top wire and the third wire from the top to the fourth one, thus spreading the wires; and that at times the fence had been found with the wires entirely down at the particular place where skaters were in the habit of leaving the right of way, and that it had been repaired on numerous occasions by the section men and also, on at least two occasions, by appellee himself. On Friday, Saturday and Sunday before the injury complained of, the wires of this fence were found by the section men out of repair, and they repaired said wires after a fashion. On Monday morning the wires were found down again and the horses on the right of way, as heretofore described. The important question is whether appellant had done enough towards keeping up a suitable fence along this pasture to constitute compliance with the statute and therefore to relieve it from liability for the killing of these horses. Clearly, if the fence had been broken, or cut, as is claimed by appellant, for the first time on the afternoon or evening of January 12, 1908, after the section men had been over the track, appellant would not be liable. But in this case, there was proof that there had been a series of almost daily depredations as to this fence, which the statute required appellant to maintain. The fact that the damage to the fence was always done at one particular point, and that the point most convenient for skaters on their way to the pond, makes it a reasonable inference that the damage was caused by such persons. At least, it became so probable that skaters were responsible that we conclude that the jury could reasonably find that appellant must be held to have known of it, and that it became the duty of appellant, either to put the fence in repair each evening after the skating was over, or else to prevent the damage to the fence by prosecutions or by some other effective method. Appellant knew that damage was being done repeatedly to its fence at this particular place, and therefore appellant had only to watch at that place, both to ascertain just who was responsible for the.damage, and also to keep the fence in repair. So far as is shown in the evidence, appellant had never made any objection to the use of its right of way as a means of reaching the skating pond in appellee’s land, nor had any attempt been made by appellant to punish persons for interfering with its fence. No one had any right to be on appellant’s right of way or to go through its fence, except its employees, and every other person so doing was a trespasser. The trespassing of such persons had become so frequent that the jury might reasonably find from the evidence that the company knew thereof and was responsible for any damage resulting from the condition in which they left the fence.

Appellant contends that there is no evidence to show that it is responsible for the injury to that horse which was found in the pasture with a broken leg; and appellant charges that the horse in question fell on the ice in the pond and broke its leg in that manner. We are unable to agree with appellant in this contention. There is evidence showing that there were tracks of three horses in the snow going east on the railroad track from the hole in the fence. As one of the dead horses was found considerably further west than the hole in the fence, the jury were warranted in finding that the three horses making those tracks were the one that was found dead at or near the bridge, the one that was found uninjured alongside of the right of way, and this one found in the pasture with a broken leg. If this horse had fallen on the ice and broken its leg in that manner, we doubt its ability afterwards to arise and get off from the ice. It would much more likely be found on the ice. Appellant’s section foreman ordered this horse killed, and he must have been satisfied that his employer was responsible for the injury to the horse or he would not have concerned himself about it. The section foreman would never have taken such steps with regard to this horse, if he had not been satisfied from his investigation that the animal had been injured' on the company’s right of way and had afterwards returned through the fence to its pasture. We are of the opinion that the jury were justified from the evidence in finding that appellant was responsible for the injury to this horse, as well as to the other animals.

In the forenoon of October 17, 1908, there was a fire in appellee’s pasture south of the right of way of appellant, and about two acres of land were burned over. The evidence is conflicting as to where the fire started and as to the cause of it. Appellant contends that there, is no evidence to show that it started on the right of way of' appellant nor from any negligence on the part of appellant’s employees but we find evidence tending to show that, when first seen, the fire was burning on the south side of appellant’s right of way and that it went from there into the pasture. There is evidence that there was dry grass and weeds on both sides of the right of way clear down to the fence on both sides, and that the right of way had not been burned over that summer or fall. Appellant contends that, while there is nothing in the evidence to show how this fire started, there is evidence that the Illinois Central train passed there a short time before,the fire was seen, and that the natural conclusion is that the fire was caused by sparks from the Illinois Central engine. The fire, when seen, was along the right of way of appellant and quite a ways from the right of way of the Illinois Central, and the direction of the wind, as testified to by' appellant’s employees, would seem to preclude the possibility of sparks or fire being carried from the Illinois Central right of way to this pasture. There is no evidence of any person being along this track on the morning of October 17th, when this fire occurred, except the section hands of appellant, and this fire may have been caused through some carelessness on their part. Although the evidence is conflicting, yet the jury heard the witnesses and the presiding judge reviewed their action, and we do not feel warranted by the evidence in disturbing their conclusion. The amount awarded by the jury was six dollars for the damage done by the fire on the south side of the right of way and we do not think it was excessive.

On the afternoon of the same day there was another fire in appellee’s pasture on the north side of appellant’s right of way and from ten to twelve acres of grass were burned over and destroyed. The jury held that appellant was responsible for that damage and' awarded appellee the sum of eighteen dollars therefor. Our remarks above about the other fire will apply to this one. The evidence was conflicting as to the origin of this second fire. Appellant contends that there was no evidence that it started on its right of way, and it introduced proof that the engine which was supposed to be responsible was equipped with the latest and best devices for spark arresting. On the other hand, we find that there was evidence that the fire was going north on the right of way towards the pasture when first seen. The wind was blowing so hard from the southwest that the five or six section men could not get the fire under control in the field. The evidence shows. that a heavy freight train had passed west going up hill, just a few minutes before the fire was seen and that the engine was working hard. There was evidence that the right of way was grown up with weeds and grass and was burning that afternoon, and other evidence that the right of way had been burned over two or three days before. The jury evidently believed that the right of way was in a bad condition, that it was fired by appellant’s engine, that that fire escaped to appellee’s adjoining field, and that appellant is responsible for the damage to appellee’s pasture. The presiding judge saw the witnesses and approved the verdict of the jury. The damages awarded for this, as well as for the other fire, were small. We do not feel warranted in disturbing the verdict.

Appellant assigns for error the rulings of the court upon certain instructions, but this question is not argued by appellant and is therefore waived.

The judgment is therefore affirmed.

Affirmed.


text:
    Kewanee National Bank, Appellee, v. Frank P. Ladd, Appellant.
    Gen. No. 5,680.
    1. Bills and notes—essentials of notice of nonpayment. A notice to an indorser of a promissory note of nonpayment must contain a description of the note, and it must show that the note has heen presented and dishonored, and that the holder looks to the party notified for payment, but these requirements need not be stated in express words and it is sufficient if they follow by necessary or reasonable implication from the language used.
    2. Bills and notes—when notice to indorser of nonpayment is sufficient. Where the payee of two promissory notes payable at a bank sells and indorses them to the bank, and the makers .have no funds at the bank at the maturity of the notes, a notice with the indorser’s name, designated as indorser, with the maker’s names which states the “note” was not paid, which is not dated, but states when the notes were due and requests that such notice, delivered the day after the maturity of such notes, be given prompt attention, but does not state the note was presented to the maker, is sufficient in all respects as against the indorser.
    3. Bills and notes—demand for payment unnecessary. By making a note payable at a particular place, the maker impliedly dispenses with the necessity of making any demand upon him either personally or elsewhere.
    4. - Bills and notes—place to present note for payment. The Negotiable Instrument Act of 1907, § 73, concerning the proper place to present a note for payment, is declaratory of the law merchant.
    5. Bills and notes—when notice of nonpayment is sufficiently served on indorser. A notice of nonpayment of a promissory note, placed in a stamped envelope having a return address, addressed to an indorser “City,” the indorser being a well known business man of that city, and the only person in the city of that name, and his residence and place of business close to the post office, deposited in the post office in time for regular delivery by a letter carrier early the next morning, and which is not returned to the sender, sufficiently served on the indorser, even though the indorser testifies that he did not receive such notice.
    7. Bills and notes—when notice of nonpayment may Be given By mail. A notice, to an indorser, of the nonpayment of a promissory note, may be given by mail, where the parties live in the same city, without it being proved that the notice was personally delivered to the party addressed.
    8. Bills and notes—questions for jury. The mailing of a notice of nonpayment in a return envelope to- a well known business man, and the only man of the same name in the city, and the nonreturn of the letter furnishes presumptive evidence that the notice was received, and the indorser’s positive denial of the receipt, leaves the question for the jury.
    9. Appeals and ebbobs—when judgment exceeding ad damnum in a declaration not reversed. Where the ad damnum exceeded the amount due upon a note, at the time suit was brought, and the judgment exceeds the ad damnum by reason of the accrual of interest during a long delay in bringing the case to trial, which could not reasonably be anticipated, the judgment will not be reversed.
    10. Bills and notes—appeals and errors. An objection that a judgment exceeds the ad damnum in a declaration cannot be raised for the first time on appeal.
    Appeal from the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Morse & Demarath and Sturtz & Ewan, for appellant.
    Anderson & Andrews and John T. Cummings, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This was a suit by Kewanee National Bank, indorsee, against Frank P. Ladd, indorser, on a promissory note for the principal sum of $1,000, dated at Kewanee, Illinois, July 1,1903, payable one year after date to the order of Frank P. Ladd at the Kewanee National Bank of Kewanee, Illinois, with interest, etc., signed by H. D. Cummings and A. J. Cummings and indorsed by Frank P. Ladd, and which note Ladd had sold to the bank. The declaration was in apt form to charge Ladd as indorser. Ladd filed a plea of the general issue and a second plea of an extension of time of payment without defendant’s knowledge or consent, to which plaintiff replied double, denying the extension and alleging that the extension was with the knowledge and consent of defendant; a third plea of a failure to notify defendant of the dishonor of the note, to which plaintiff replied double, that the bank did notify defendant of the dishonor and that notice of the dishonor was waived; and a fourth plea to which a demurrer was sustained, which action is not assigned for error. Rejoinders were filed to these replications. On a jury trial, plaintiff had a verdict for one thousand dollars. A motion by defendant for a new trial was granted. On a second jury trial, plaintiff recovered a verdict and a judgment for $1,412.50. Defendant below appeals and raises three questions: (1) Was the notice of nonpayment sufficient? (2) Was that notice duly served? (3) Must the judgment be reversed because it exceeds the ad damnum in the declaration?

The notice was as follows:

Dear Sir:

Tour 2 notes for $1,000.00 each and Int will be due at this bank July 1, 1904

Please give this your prompt attention.

Respectfully

R. E. Taylor, Cashier,

please bring this notice with you.

All papers subject to protest.”

It is essential to the sufficiency of such a notice that it contain a description of the note, and that it shall show that the note has been presented and dishonored, and that the holder looks to the party notified for payment. All these requirements do not need, however, to be stated in express words, but it is sufficient if they follow by necessary or reasonable implication from the language used. It is said in 7 Cyc. 1106: “Ho particular words are necessary to constitute a good and sufficient notice of dishonor, and as the object of notice is to inform the party notified that the paper has been dishonored and that he is looked to for payment, it follows that a notice which informs the indorser of these two facts, either expréssly or by necessary or reasonable implication or intendment is sufficient.” Moreover, the indorser receiving such a notice is bound by facts within his own knowledge. Thus, it is said in 7 Cyc. 1109: “While an indorser is entitled to notice of dishonor, both because it is material to his interests and his contract provides for it, he cannot shut his eyes to facts within his own knowledge and rely for a defense upon mistakes or omissions which could not have resulted to his prejudice. Hence, with regard to the designation of the instrument, any form of description which is sufficiently accurate not to mislead him as to the instrument intended is sufficient. The absence of evidence of the existence of other similar obligations is material in determining such sufficiency, and ■ circumstances may be shown to rebut any presumption of uncertainty.” Appellant contends that this notice is only addressed to H. D. Cummings and A. J. Cummings. We hold that it is equally addressed to Frank P. Ladd, and that it specially informs him that he is the indorser upon the notes therein specified. The proof shows that there were two notes given by H. D. and A. J. Cummings on July 1, 1903, for one thousand dollars each, payable to appellant and by him sold and indorsed to appellee. Bach was due July 1, 1904, and appellant was bound to know that these were the notes referred to. The notice is not itself dated hut it stated a date when the notes were due and it informed the receiver of the notice that ‘ Cummings note not paid to-day. ’ ’ The fact that the word note was used instead of notes is not material. It would be understood to refer to each note. The receiver of the notice would understand that the note was not paid on the date it was due, and the verdict of the jury under the instructions of the court is equivalent to finding that this notice was delivered on July 2, to appellant, and in the morning of that day. Appellant would naturally understand that it meant that the note was not paid on the preceding day. It did not state that the note had been personally presented to the maker, but the note was payable at the bank, and this notice shows that it was present at the bank, and appellant knew that he had sold the note and delivered it to the bank, and the proof shows that H. D. Cummings and A. J. Cummings had no money in the bank with which to pay the note. In 7 Cyc., 996, the rule is thus stated: “Where commercial paper is payable at a particular office or other place, having or leaving it at such place to be surrendered when paid is sufficient demand, and presentment to the maker or acceptor personally or at his place of business or residence is not necessary. If it is payable at a bank, it is sufficient if the bank is its holder or if it is in the bank at maturity ready to be surrendered when paid, and a formal demand is unnecessary.” By making it payable at a particular place, the maker impliedly dispenses with the necessity of making any demand upon him either personally or elsewhere. Story on Promissory Notes, section 234; Ewen v. Wilbor, 99 Ill. App. 132. The “Negotiable Instrument Law” of 1907, sec. 73, art. 1, is declaratory of the law merchant. “Please give this your prompt attention,” was sufficient notice to appellant that the bank held the note and looked to him for payment. While this notice could be improved in form, we hold that under the facts which the proof shows were known to appellant, it was a sufficient notice to him.

Was this notice served on appellant? Taylor testified that he was cashier of the bank at the maturity of this note; that at the close of business hours, that is, after four o’clock p. m. of July 1, 1904, he prepared a notice and a copy thereof and compared them (the copy being the one in evidence above set out); and prepared an envelope addressed to “Frank P. Ladd, City” which envelope had upon its corner directions to return it to the Kewanee National Bank if not called for in five days; that he delivered the notice and the copy and the envelope to Whitney, the teller of the bank. Whitney testified that he examined the notice and copy and then sealed up the notice in the envelope so addressed, and saw that it was postpaid, and put it into the post office at five o’clock p. m. of that day, and put away the copy in the files of the bank. He also testified that the envelope contained the return card above stated. The proof also showed that Frank P. Ladd was engaged in the monument business in the city of Kewanee, that he was a well known business man, that he was the only person of that name who lived in Kewanee or who received mail through the Kewanee post office, that his residence was at No. 316 North Main street and his place of business was at No. 318 North Main street, adjoining his residence and in the city of Kewanee, and about a block and a half from the post office and about two blocks and a half from the bank of appellee, and that his residence and place of business were within the carrier system then in use by the post office department in the city of Kewanee, and that he received his mail at that time regularly at his place of business, and that in the due course of business of that post office a letter addressed to “Frank P. Ladd, City” and put in the post office at 5 p. m. of one day, would be delivered at the said place of business of Frank P. Ladd between 7:30 and' 8:00 a..m. of the next day, and that this envelope enclosing said notice and bearing said' return card was never returned to appellee. Frank P. Ladd testified that he did not receive it. He may, however, have been mistaken or may have forgotten. His testimony at this trial was more than seven years after July 2, 1904, and this suit was begun more than two years after the transaction in question, and that is a very long time for a person to remember a detail of this character. Moreover, he testified that his business called him away from Kewanee a great deal, and the proof shows that at the first trial he testified he did not know whether he was in Kewanee on July 2, 1904, or not. At this trial, he testified that his memory had been refreshed by examining his letter book in which he found copies of letters written by him on July 2, 1904, and in the forenoon of July 3, 1904. We do not understand him to mean that after seeing those letters he had an independent recollection of having been in Kewanee on those days, but that after having seen this letter book, he reasoned that he must have been at home on those two days. It was not necessary that proof should be made that he did receive the notice. It was sufficient if it was delivered at his place of business during business hours, even though he were absent and even though the person in charge of his office may not have communicated the notice to him. It is contended by appellant that though notice may be given by mail when the parties reside in different cities or towns, yet such a notice is insufficient if the parties live in the same city or town, unless some one testifies that the notice was personally delivered to the party addressed. Conceding that that was the former rule, we are of opinion that it has been modified to meet modem conditions. The modern rule is thus stated in 7 Cyc. 1103:

“Where a penny post or carrier delivery has been established in a city or town, notice may be given through such medium, the postage being prepaid, even where the parties reside in the same place, provided it is mailed in time to be delivered on the day after dishonor. ’ ’

Numerous eases are there cited in support of that doctrine, and we call attention especially to Walters v. Brown, 15 Md. 285. We are of opinion that not only should what was done by the bank be considered a sufficient compliance with the rule requiring notice to the indorser, but also that the proof was such that the jury could find that the notice was actually delivered to him. Certainly, all the facts above stated, including the return card on the envelope and the non-return of the letter to the bank, furnish presumptive evidence that the letter was received by the party to whom it "was addressed and it is said in 16 Cyc. 1070, that the addressee’s positive denial of the receipt does not nullify the presumption, but leaves the question for the determination of the jury under all the circumstances, with such weight given to the presumption as they think it entitled to; and that the testimony of the addressee that the letter was not received should be regarded with caution where non-receipt, if proved, would relieve him of a burden. We therefore conclude that there was sufficient proof of notice to satisfy the requirements of the law, when believed by the jury and by the trial judge.

The ad damnum in the declaration was $1,300. The judgment exceeded that amount. Appellant argues that for that reason the judgment must be reversed. To this there are two sufficient answers: (1) The ad damnum exceeds the amount due upon the note at the time when the suit was begun. The excess above the ad damnum is for interest which accrued on the note after the suit was begun, during a long delay in bringing the case to trial which could not reasonably be anticipated. We are of opinion that for such excess the judgment should not be reversed. (2) Appellant filed a written motion for a new trial in which he specified the grounds relied upon, and the excess of the verdict over the ad damnum was not alluded to in said motion. The point was not raised in the court below at all. If it had been, the court would have permitted the ad damnum to be increased or appellee would have reduced the verdict. Such an objection cannot be raised for the first time in a court of appeal. Utter v. Jaffray, 114 Ill. 470; Metropolitan Accident Ass’n v. Froiland, 161 Ill. 30; Leathe v. Thomas, 218 Ill. 246.

We do not find reversible error in the points argued. The judgment is therefore affirmed.

Affirmed.


text:
    Hulda K. Connor, Administratrix, Appellee, v. American Spirits Mfg. Co., Appellant.
    Gen. No. 5,683.
    1. Master and servant—when instruction erroneous as ignoring assumed risk. An instruction, to the effect that if the jury find that the death of the deceased was caused by the negligence of the defendant as charged in the declaration while the deceased was in the exercise of ordinary care, they should find the defendant guilty is erroneous as ignoring the question of assumed risk, where there is conflicting evidence as to whether the deceased had spoken to the defendant about the dangerous condition of the premises in that furnace gas which was the alleged cause of his death could not escape from an ash pit, and continued to work in reliance on a promise to remedy the same.
    2. Instruction—directing verdict. Where an erroneous instruction directs a verdict it cannot be cured by other instructions stating a different rule.
    3. Master and servant—duty to keep premises safe. An instruction which by reference to the declaration imposes upon the defendant an absolute duty toward his employer to keep a furnace room in a safe condition is erroneous.
    4. Master and servant—appeal and error. Errors in the giving of instructions cannot be overlooked where there is a verdict for plaintiff and there is no direct evidence that the alleged wrongful act was the cause of the death of the plaintiff’s intestate, and the direct proof tends to show that the death of the deceased was caused by his own negligence.

      Action in case for death by wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Page, Wead, Hunter & Scully, for appellant; Mayer, Meyer, Austrian & Platt, of counsel.
    Egbert H. Lovett and Joseph A. Weil, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

James Connor was an ash handler in the employ of appellant and had been for a number of years. On the night of May 11-12, 1909, he was at work for appellant and was sick and vomited and went home in the morning and his throat and mouth appeared to be burnt and he had medical attendants, who diagnosed his complaint as capillary bronchitis, and he died on May 21,1909, which death the physicians testified was, or might be, due to the inhalation of gases or vapors. He left surviving him adult married children, not dependent upon him, and his widow, not the mother of his children. She took out letters of administration and brought this suit against appellant for the benefit of the widow and next of kin, and, upon a jury trial, had a verdict, which was reduced in amount, and had a judgment from which defendant below appeals.

In a certain boiler room of appellant were three furnaces in a row, numbers 11, 12 and 13, No. 11 the furthest south and No. 12 the furthest north, and the latter was two feet and ten inches from the north wall of the building. There was a lofty roof above and ventilating places therein above each furnace. For many years the fire box on each furnace was cleaned put from time to time by Connor and others by opening the lower door and pulling the ashes and cinders out in front. Gases and fumes would immediately rise and, on that account, one man could not do this work alone, but, while one was raking out the ashes and cinders, another man stood by, pouring water upon the hot material as fast as it was drawn out. This water killed the gases or prevented their injuring the men who was drawing them out. Some months before the death of Connor an entirely new system was adopted. A pit, beginning outside the building some six or eight feet south of its south wall, was run directly across underneath each of these furnaces to the north wall of the building. A different method of feeding the furnaces was installed and the ashes and cinders were taken out directly underneath each furnace, by means of what was called a stoker. A certain fastening was struck and a trap door dropped and the ashes and cinders either fell out or were raked out. The instant the workman had struck the fastening of the trap door it was his practice to step back quickly Out of. the way of the falling ashes and cinders, and they were then wet down with water, appliances for which were at hand at all times. The space above this pit was open, except where covered by the furnaces (which were several feet apart), from the south wall of the building to furnace No. 13, but the space from No. 13 to the north wall was covered and there was no opening there through the wall at the north end of the pit. It seems to have been intended that there should be a track in the pit on which a car should run to receive the ashes and crust, and that there should be an elevator to raise the ashes out of the pit, but these had not yet been put in. There was an opening and ladder way leading down into the pit on each side of each furnace, except that there was none on the north side of No. 13. There was a platform four feet from the floor of the pit, and the ash handlers worked in pairs. One shoveled from the bottom of the pit onto the platform, and the other from the platform to the floor of the furnace room. When one knocked out the fastenings of the trap door in the bottom of the furnace, it.was the duty of the other to stand on the platform or on the floor of the furnace room with hose ready and to pour water upon the fresh ashes and cinders. There was hose both at the top and at the bottom of the pit, and both were ready for instant use when needed, and the men who knocked out the "fastening could at once turn on water; and there was proof that deceased had been told to use the water more freely, and that he would some day be injured by the gases if he did not; and there was proof that it was entirely easy to use the water freely and successfully. His associate on the night of May 11-12 was one Smith, who could not be found and whose testimony was not obtained. No witness knew that deceased was injured in the pit that night by inhaling gas. When the trap door was dropped and any crust there may have been in the bottom of the furnace was broken, there was a direct and strong draft from the pit up through the furnace. There was testimony that Connor complained that this did not give sufficient opportunity for the gas to escape which came down under No. 13 and that there was danger of being injured by the gas under that furnace and that he received two or three assurances from his superior that it should be attended to and an opening-made in the north wall as soon as the master mechanic could get around to it, but that he was very busy then with certain other work. On the night in question, or near morning, Connor was found outside in the cool air, and was sick and vomiting, and complained that he believed he had inhaled too much gas. It is the claim of appellee that he had inhaled gas, which caused his illness and death. No witness testified to that fact and, if it is established at all, it is only as an inference from circumstances. While the declaration did not state under which furnace he received the gas, nor at which furnace the ventilation was defective, yet each count charged that deceased knew of the dangerous condition and complained to his superior and received a promise to repair from his superior; and there was no proof of any such complaint and promise except as to No. 13. It would seem to be clear that under the case made by the pleadings and proofs, deceased assumed the risk of any gases from furnaces Nos. 11 and 12. His superior denied that he received any complaint coming from deceased as to the ventilation under No. 13 and denied that he gave any promise to remedy the condition then existing. If deceased knew the danger and did not complain to his superior and received no promise to improve the condition, then apparently deceased also assumed the risk of working under No. 13. There was no proof that he inhaled gas under No. 13 that night, except as the condition of his throat and bronchial tubes tended to show that he inhaled gas, and except the inference that, if he did inhale gas, it would most likely be under the furnace which had the poorest ventilation.

Under these circumstances, we conclude that the giving of the first instruction, requested by appellee, was reversible error. It told the jury that if they believed from the evidence that the death of Connor was caused by the negligence of appellant, as charged in the declaration or some count thereof, while Connor was in the exercise of ordinary care and without fault or negligence on his part, and that he left next of kin surviving him, the jury should find appellant guilty. This instruction ignored the question whether Connor assumed the risk of working there, and it directed a verdict. This was erroneous. Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243. As this instruction directed a verdict, it could not be cured by other instructions stating a different rule. Cantwell v. Harding, 249 Ill. 354, and cases there cited. It could only be supported if the uncontradicted facts showed that he was acting in reliance upon a promise by his superior and did not assume the risk. Here the complaint and promise were denied. The instruction is also incorrect in another respect. Each count of the declaration charged that the duty of appellant was absolute to maintain said pit in a safe condition and that that duty was violated, whereas the duty of appellant was to exercise reasonable care to keep said pit in a reasonably safe condition, and to exercise reasonable care to furnish deceased a reasonably safe place in which to work. This instruction, therefore, by its reference to the declaration, imposed upon appellant a greater duty than the law would impose and, under that instruction, and the evidence, the jury might readily find against appellant because it did not maintain the pit in an absolutely safe condition. It ought also to be stated that there is proof that deceased, who was sixty years old, had been in poor health for some time, and was sick and vomiting before he reached his place of work on the evening of May 11; proof that, during that night, he was lying out of doors on the bank of the Illinois Elver in a cold north wind; and proof tending to show that he died of pneumonia, and that that may have been produced by his undue exposure that night when overheated. In view of this testimony and of the absence of any direct proof that he inhaled any gas under No. 13 that night, we feel that the error in giving said instruction cannot be overlooked, but that justice will best be served by another trial.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    John P. McWilliams, Appellant, v. Frank E. Lavell, Appellee.
    Gen. No. 5,687.
    1. Costs—effect of tender. Where defendant tenders costs and a certain amount as damages which is refused and the jury finds such tender sufficient, subsequent court costs will be assessed against the defendant.
    2. Set-off—in action before justice. In an action before a justice to recover the price of grain sold and delivered, an unliquidated claim for hauling building materials may be set off under R. S. ch. 79, Sec. 53.
    3. Landlord and tenant—construction of lease. The construction of clauses in a lease is for the court.
    4. Landlord and tenant—construction of lease. Clauses in a lease, made six months before the beginning of the term, to the effect that the lessee was to haul all material needed for repairs, improvements, or new fences, to build all fences and keep the same in repairs and to haul all building material, free of charge for the lessor, will be construed as not requiring the lessee to haul material for new buildings to be erected after the beginning of the term.
    5. Alteration of instruments—for jury to determine when made. Where the evidence is conflicting as to whether an interlineation in a lease was made before or after it was signed by the lessee, the question is for the jury.
    6. Set-off—matter arising after suit. An indebtedness arising subsequent to the bringing of a suit cannot be offered to reduce a set-off claim.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Clyde H. Thompson and McIlduff & Thompson, for appellant.
    White & Tuesbtjrg, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On August 4, 1910, appellant leased certain real estate to appellee by a written instrument. The term of the lease was from February 1, 1911, to February 1, 1912. During the term of said lease appellant sued appellee to recover the value of certain hay and oats which the former claimed he had sold to the latter. Appellee disputed the liability in part and, by way of set-off, made certain claims against appellant. The cause was removed to the Circuit Court by appellee and before it came on for trial there appellee tendered appellant all costs to that date and $33.75. On a jury trial in the Circuit Court the jury found the issues for appellee and found the tender sufficient and assessed appellant’s damages at $33.75, the amount tendered, and, after a motion for a new trial was denied, the court granted leave to appellant to take the amount of the tender, then in the clerk’s hands, and entered judgment for appellee for costs, and plaintiff below appeals from that judgment. The judgment was somewhat informal but was correct in substance, if the verdict was correct. County of Jo Daviess v. Staples, 108 Ill. App. 539.

Appellee and another purchaser each received oats from the threshing machine. Appellant claimed that appellee received 381 bushels. Appellee claimed that he only received a little over 248 bushels. The proof was conflicting on this subject, and the evidence does not warrant us in disturbing the conclusion of the jury, approved by the trial judge. There seems to be no dispute as to the amount of hay appellee bought of appellant.

Appellee’s principal item of set-off was for hauling a large amount of material for appellant for new buildings which appellant erected on the premises during the term of the lease. Appellant makes two answers.

He claims that these are unliquidated damages, which cannot be set off - in this action, relying upon Higbie v. Rust, 112 Ill. App. 218; 211 Ill. 333, and other cases. Those were not suits brought before a justice. In suits brought before a justice the statute requires' each party to bring forward all his demands against the other, etc. R. S. ch. 79, sec. 53. Heenan Mercantile Co. v. Welter, 144 Ill. App. 279, is conclusive that, in our view, this set-off was properly brought forward in this suit begun before a justice. Appellant further contends that appellee was bound to haul this material for him without charge, under the 13th and 14th clauses of the lease. The 13th clause bound appellee to haul to the farm all material needed for repairs,, improvements, or new fences, and the 14th clause bound him to build all fences and keep the same in repair and haul all building material free of charge to appellant. It will be observed that the lease was dated nearly six months before the beginning of the term. About the beginning of the term appellant began the building of a new house, apparently on the farm appellee had rented, but not on or near the house which was on the farm when the lease was made. It was for the court to determine the meaning of these clauses in the lease. We are disposed to hold that the provisions in question did not contemplate that appellee was to haul material for new buildings to be thereafter erected by appellant. Appellee obtained several bushels of grass seed from a second crop of grass, and to reduce the set-off appellant sought to charge him therewith under the 3rd clause of the lease, which gave appellee the hay for the first crop only. Only one copy of the lease was prepared and it was sent by appellant to appellee and by him signed and returned. The words “for the first crop only” had been interlined in the lease, when produced from the custody of appellant, and appellee contended that this interlineation was written after he signed the lease and without his knowledge. The evidence was conflicting on that subject and this presented a question to be determined by the jury. Moreover, this seed was not obtained by appellee till after the commencement of this suit.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Willis

text:
    Carrie Somers, Defendant in Error, v. John G. Petteys, Administrator, Plaintiff in Error.
    Gen. No. 5,553.
    1. Administration of estates—claims. A verdict oí $1,000 for services rendered in taking care of intestate for a period of about six years is warranted by the evidence which shows that deceased was. afflicted with bowel and kidney trouble which resulted in frequent involuntary passages, that he had an injured leg which required daily dressing and that he had promised and told others that he would will claimant his property valued at about $1,000, as compensation for taking care of him.
    2. Directing verdict—when motion waived. A motion to direct a verdict is waived by the subsequent introduction of evidence.
    3. Directing verdict—when improper. It is not error to refuse to direct a verdict for defendant where a certain amount is admitted to be due.
    4. Instructions—reference to statute of limitations. A party cannot complain of an instruction given in behalf of his adversary, because it ignores the statute of limitations, where instructions offered by him, also make no reference thereto.
    5. Instructions—when no complaint can he made of. A party cannot complain of an instruction given for his adversary which is like one given at his own request.
    6. Statute of limitations—cannot he raised for first time in appellate court. A question as to the statute of limitations cannot be raised for the first time in the appellate court.
    Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    J. W. Rausch, for plaintiff in error.
    Smith, Smith & Smith, for defendant in error; Cornelius Reardon, of counsel.-
   Mr. Justice Willis

delivered the opinion of the court.

This is a writ of error to review a judgment of the Circuit Court of Grundy county in favor of Carrie Somers against the estate of August Herburger, deceased.

August Herburger died October 1, 1908. On November 2, following, Mrs. Somers filed a claim against his estate in the County Court of said county to recover for services rendered during his lifetime. On a trial she amended the claim by adding an item for nursing the deceased from October 1, 1903, to the date of his death at $10 per week, and obtained a judgment for $50, from which she prosecuted an appeal to the Circuit Court of said county. On a trial there, at the close of claimant’s evidence, the court refused a motion to direct a verdict for the estate. At the conclusion of all the evidence the jury returned a verdict for $1,000.00 for claimant, upon which judgment was entered.

The proof shows that the deceased, a single man, about 60 years of age, owned a house and two lots in Morris; that he rented the property to claimant or her husband at a certain monthly rental and boarded with them at a stipulated price per week; that in the fore part of 1902 he received injuries to his leg, and on July 9, 1902, was removed to a hospital where he remained until November 9, 1902; that while there he was treated for the injuries to his leg, for an abcess on the elbow and for rheumatism; that after he returned to the home of claimant he was confined to his bed for a time, walked on crutches for several weeks, and thereafter always limped and used a cane; that he had bowel and kidney trouble which were aggravated by his excessive use of intoxicating liquors, and that he was subject to frequent involuntary passages from the bowels and kidneys; that the condition of his leg required bandaging and daily dressing and that he required the care of a nurse at times; that to care for him, his bed and clothing were very offensive and unpleasant; that claimant alone bandaged and dressed his leg, cared for him, his bed and clothing, from the time of his return from the hospital until the day of his death; that the services of a practical nurse were reasonably worth $10 per week and that the property was worth $1,000 to $1,500; that the rent and board were settled up to a week before his death. For claimant John Schroeder testified that about four weeks before his death, deceased told him that he would not have money enough to pay claimant for her services, but that he would give her the house and lot. J. D. Owens testified that the deceased said that claimant was taking good care of him, and ‘She will get it all.” William G-uyerstanger testified that the deceased told him “I will never forget what Mrs. Somers has done for me. I will give her my property.” Wm. Magurn testified that deceased said that Carrie Somers was taking care of him; that he was going to pay her for it; that he was going to leave the place to Mrs. Somers for taking care of him. Fred Bath testified that deceased told him he was going to will the property to claimant when he died; that deceased said concerning Mrs. Somers’ care of him “If she takes care of me as long as I live I will will her the property.” John J. Bice testified that in a conversation with deceased a short time before his death, in which claimant and others were present, that deceased said that he would give her the property. The proof shows that the reasonable value of her services exceeded the value of the property, and we think, from all the evidence that it was understood between the parties that the deceased was to give her the property in payment for her services. He died suddenly in the night and it is a fair inference from the evidence that he would have willed her the property had he known that he was about to die so soon. It is conceded that the estate was indebted to her in the sum of $50 for board and funeral expenses. We think this admission and the fair inference to be drawn from all the evidence warranted the jury in finding the estate indebted to her in the amount of their verdict.

It is contended that, when deceased paid Mrs. Somers $4 or $5 then due her for his board, over and above what she then owed him for rent of the house, this was a settlement of all he then owed her, and that all she can now recover is for his hoard for the few more days in which he lived and for the holding of the funeral at her house. It is evident from all the testimony that neither party considered that payment for board was intended to compensate her for her services as his nurse.

There was no error in the refusal of the motion to direct a verdict, as the subsequent introduction of evidence by the estate was a waiver of the motion. Again, the admission that the estate owed claimant $50 for board and funeral expenses compelled its refusal.

A careful reading of the record discloses that no harmful error was committed by the trial court in ruling on the admission and exclusion of evidence.

Herburger died about five years and eleven months after he returned from the hospital. For that reason it is contended that the court erred in giving instructions for the claimant that ignored the statute of limitations, on the ground that the statute was a defense to a part of the claim. Instructions given for the estate also omitted all reference to the statute of limitations. A party cannot complain of an instruction given on behalf of his adversary like one given at his own request. Springer v. City of Chicago, 135 Ill. 552; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Funk v. Babbitt, 156 Ill. 408; McKinnie v. Lane, 230 Ill. 544. But more than that, it is plain from the evidence that deceased had promised claimant less than five years before his death that she should have the property, in payment for her care of him. Under this state of the proof, the statute would not be a defense to her claim. Moreover, as the statute was not raised in the court below by specific objection or motion to strike the evidence from the record, or in the instructions, that question cannot be raised for the first time in this court. Again, at the request of counsel for the estate, the court instructed the jury that the only question submitted to them was: First, did the claimant render services for the deceased, and second, is the estate indebted to the claimant for any portion of said services, and if so indebted, in what amount? This alone is a sufficient answer to the criticism of the ruling of the trial court on instructions.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    August Reimenschneider, Plaintiff in Error, v. William Neusis, Defendant in Error.
    Gen. No. 5,622.
    1. Assault and batteet—gestures no justification for. Malignant and taunting gestures are not a justification for assault or battery.
    2. Assault—abusive words do not justify. Abusive words do not justify an assault.
    3. Assault and batteet—when defendant justified in striking first bloio. Where plaintiff’s language and demonstrations would have lead a reasonably prudent person, situated as defendant was, to believe that plaintiff' was about to strike him, defendant was justified in striking the first blow. '
    4. Assault and batteet-—burden to show assault in self-defense. In an action for assault and battery, on an issue taken on replication de injuria to a plea of son assault demesne, the burden is upon defendant to prove that the assault was made in necessary self-defense, and that he used no more force than necessary.
    5. Assault and batteet—when plea son assault demesne not established. In an action for assault and battery, where the undisputed evidence shows that defendant deliberately turned around after the first encounter and assaulted and beat plaintiff, the plea of son assault demesne is not established and defendant is liable.
    6. Assault and batteet—appeal and error. On reversal and remand of a finding for defendant in an action for assault and battery, the question as whether the damages should be nominal or compensatory will not be passed upon, though the evidence shows that plaintiff was injured.

      7. Assault and battery—evidence as to general reputation of parties. Where the characters of the parties to an action for assault and battery are not involved, evidence as to their general reputation as peaceable citizens is not admissible.

      8. Assault and battery—instructions. An instruction that if defendant assaulted plaintiff in the reasonable, necessary defense of his own person, after having been first assaulted by plaintiff, and that he used no more force than necessary, etc., the jury should find for defendant, is improperly submitted, where there is no evidence, that defendant was first assaulted, that defendant struck the plaintiff in self-defense or that he used no more force than necessary for such defense.
    Action in trespass for assault and battery. Error to the Circuit Court of Kendall county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed June 27, 1912.
    Benjamin F. Herrington, for plaintiff in error.
    John Fitzgerald, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

On April 8, 1908, parties were engaged in a game of cards in Markel’s blacksmith shop in Yorkville. Plaintiff was looking on, when defendant came in to settle his account with Markel. Markel requested plaintiff to take his hand in the game while he went back to his office to consult his books, but plaintiff declined and requested defendant to take the hand. He refused and a quarrel arose between them over some old business matters, in which each used language derogatory of the other. Defendant struck plaintiff a blow in the face and he struck back and they were separated. Defendant started to walk out of the shop and then returned, took off his coat and struck plaintiff about the face and head several times and he retaliated, and they were again separated. Plaintiff lodged a complaint with a justice of the peace of Kendall county and defendant was arrested, pleaded guilty and paid a fine. Later plaintiff brought this suit in trespass against the defendant in the Circuit Court of said county to recover damages for injuries received in the two assaults and batteries. The declaration contained five counts. One charged that the assaults were prompted by malice. Bach count described the injuries received by plaintiff and alleged that he was obliged to spend large sums of money in being cured. Defendant pleaded not guilty and son assault demesne. Plaintiff replied de injuria. Similiters were added to the plea of not guilty and the replication. A trial resulted in a verdict for the defendant. Motions for a new trial and in arrest of judgment were denied, and judgment entered on the verdict and against plaintiff for costs. A bill of exceptions was taken and this writ of error was sued out to review the judgment.

There is some testimony tending to show that before the second encounter defendant took some object from his pocket with which he struck the plaintiff, although defendant denied this. After- the second encounter plaintiff picked up some object, first two horse shoes and afterwards a chisel, but was compelled to put them down. According to the testimony of the defendant and some of his witnesses plaintiff shook his fist in defendant’s face before he was struck the first time. However, one of defendant’s witnesses testified that plaintiff always gesticulated that way with his hands when talking. If plaintiff’s gestures werej malignant and taunting, defendant was not justified in striking the first blow, as such gestures are never a justification even for a common assault. Clark’s Criminal Law, 215, and authorities cited in note 175. Nor do mere abusive words justify an assault. Sorgenfrei v. Schroeder, 75 Ill. 397; Gisler v. Witzel, 82 Ill. 322; Price v. People, 131 Ill. 223; Scott v. Fleming, 16 Ill. App. 539. If the evidence had shown that plaintiff’s language and demonstrations would have led a reasonably prudent person situated as defendant was to believe that plaintiff was about to strike him, the law would have justified defendant in striking the first blow, but none of the witnesses stated that there was any appearance that plaintiff was about to strike the defendant first, and defendant does not claim that he thought he was about to be struck. The tenor of his testimony and his conduct show that he did not anticipate that plaintiff would strike him and the evidence is undisputed that after they were separated in the first encounter he started to go away, and then deliberately turned around and assaulted and beat the plaintiff the second time. On an issue taken upon a replication de inju-ria to a plea of son assault demesne, the burden is upon the defendant to prove that the assault was made in necessary self-defense, and that, in making the assault, he used no more force than was necessary to protect himself. Gisler v. Witzel, supra. The evidence utterly failed to establish the plea of son assault demesne, and therefore the defendant is liable. While the evidence shows that plaintiff ^as injured, it is not for us to say at this time whether his damages are nominal or compensatory.

Defendant was permitted to prove, by a number of witnesses, his general reputation as a peaceable citizen. We do not understand the character of the parties, whether men of- violence or law-abiding citizens, was involved. As a general rule, the character of a plaintiff in such cases is not the subject of inquiry. Cummins v. Crawford, 88 Ill. 312. The only purpose of this evidence would be to create a presumption that defendant would not be inclined to commit the assaults. If such evidence were admissible, the presumption arising! therefrom would not rebut defendant’s own admission that he committed both assaults.

Defendant’s first instruction told the jury that if they believed from the facts and circumstances in evidence that the defendant assaulted the plaintiff in the reasonable, necessary defense of his own person, after having been first assaulted by the plaintiff, and that he used no more force than was apparently necessary for such defense, they should find for the defendant. There was no evidence tending to show that the defendant was first assaulted by the plaintiff or that the defendant struck the plaintiff in the reasonably necessary defense of his person, or that he used no more force than was apparently necessary for such defense, and the instruction should not have been given. Defendant’s second instruction is like the first, and is erroneous because it assumes the defendant acted in self-defense. •

For the errors indicated in the rulings of the court on the admission of evidence and the instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Kate Blust Craig, Appellee, v. Lewis J. Craig and Sophia Craig, Appellants.
    Gen. No. 5,627.
    1. Injunctions—effect of amendment to hill. An interlocutory injunction may be rendered ineffective by an amendment to the bill unless the amendment is filed after leave of court and without prejudice to the injunction.
    2. Injunctions—effect of amendment to hill. An interlocutory injunction is not affected by amendments to the bill though no order was obtained that they should be without prejudice to the injunction, where they do not change the allegations of the bill except to enlarge and strengthen them.
    3. Injunctions—issuance without notice. An affidavit accompanying a bill praying for an interlocutory injunction without notice must, where it alone is relied on, state facts showing that the complainant’s rights will be unduly prejudiced unless such injunction is issued.
    4. Injunctions—issuance without notice. Objection to the issuance of an interlocutory injunction without notice is waived when a motion to dissolve is made,. since such motion operates as a demurrer to the bill.

      5. Injunctions—issuance without notice. The averments of a hill sufficiently show that complainant’s rights will he unduly prejudiced if an injunction is not issued without notice, where its positive allegations, properly verified, state that an easement of way exists over defendant’s land, specify how the title came into the present owners and aver that the way is a way of necessity, that it was obstructed by the defendant and that defendant made threats of bodily injury and legal proceedings in case complainant should pass over the way again.
    6. Injunctions—when interlocutory should, not he dissolved. An interlocutory injunction restraining the obstruction of an easement of way granted without notice should not be dissolved because the bill in some instances states conclusions rather than facts, where it does charge that an easement of way had been used as a road adversely and continuously under claim of right by the complainant and predecessors in title for more than 20 years and that such use was recognized by the former successive owners.
    7. Injunctions—interference with way. Where the complainant asks for an injunction restraining the obstruction of an easement of way, there is a sufficient recognition of a change in the way by agreement with complainant’s predecessor in title where the bill charges that she and defendant placed and maintained gates along the changed way.
    8. Injunctions—interference with way. Where a bill for an injunction restraining the obstruction of an easement of way contains as an exhibit a will through which the complainant claims title from her father, there is a sufficient showing of title, though there is no allegation that the will has been admitted to probate, since if it is not, she is an heir and a tenant in common.
    9. Injunctions—pleading. Where the will, under which complainant who is praying for an injunction restraining the obstruction of an easement of way claims title charges the dominant estate with the support of the complainant’s mother, the bill shows that the condition has been complied with where it states that she and her mother have no other place of abode and will be confined as in a prison if the obstructions are maintained.
    Injunction. Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed June 27, 1912.
    A. M. Cavan and E. J. Riley, for appellants.
    Isaac B. Hammers and C. G-. Schroeder, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee, Kate Blust Craig, is the owner of 40 acres of land in Section 2, Township of Kansas, Wood7 ford county, and appellants, Lewis J. Craig and Sophia Craig, own 20 acres in the same section, immediately south thereof. Appellee obtained an interlocutory injunction restraining appellants from obstructing an alleged easement of way over the same, and directing its restoration to the condition in which it was before the alleged obstruction. A motion to dissolve the same was heard and denied and appellants appealed from that order to this court. We transferred the cause to the Supreme Court for reasons stated in Craig v. Craig, 154 Ill. App. 1, and the same was re-transferred to this court for the reasons stated in 246 Ill. 449.

The injunction was granted by a master without • notice as required by Sec. 3, Chap. 69, Hurd’s R. S. Thereafter a motion was made to dissolve the injunction on the grounds that the bill was not properly verified; that the affidavit required by Sec. 3, supra, was insufficient; that the bill stated conclusions and not facts, and for want of equity on its face. Later, by leave of court, sworn amendments were filed to the bill, and the motion to dissolve the injunction was extended so as to cover the bill as amended.

The filing of an amendment to a bill may operate to render an interlocutory injunction ineffective, unless filed after leave of court and without prejudice to the injunction. 22 Cyc. 981, note 49. In asking leave to amend the bill, appellee did not obtain an order that the amendment should be without prejudice to the injunction. Appellants did not urge in the court below that the filing of the amendments rendered the injunction ineffective, but urged its dissolution on other grounds. The amendments not changing the allegations of the bill except to enlarge and strengthen them, we think they did not affect the force of the injunction.

The hill was accompanied by an aEdavit that the rights of appellee would be unduly prejudiced if the injunction was not issued immediately and without notice. The issuing of an injunction without notice is forbidden by the statute, “unless it shall appear, from the bill or aEdavit accompanying the same, that the rights of the complainant would be unduly prejudiced.” Sec. 3, supra; Stafford v. Swift, 121 Ill. App. 508. The aEdavit was not alone suEcient to justify the master in issuing the injunction, as it did not state the facts which show that the rights of appellee would be prejudiced if notice were given. The original bill alleged that since a time prior to 1854 there had been an easement of way from appellee’s land as the dominant estate over appellants’ land as the servient estate ; that appellee derived title to the dominant estate by devise from her father, Frank Blust; that a former owner of the servient estate recognized the right of passage over the same in Frank Blust by offering and attempting to lay out a road along another part of the servient estate in place of the road above mentioned, for the purpose of passage by said Frank Blust, but abandoned the same; that later a part of said road was changed by mutual agreement between said Frank Blust and appellant, Lewis J. Craig; that appellants placed gates where said road, as relocated, intersected with fences on the servient estate; that appellee had no other way of getting into or out of her premises without passing over the lands of other parties, for which she had no license; that appellants had repeatedly obstructed said road by fastening up the gates, by piling logs, rubbish, etc., on the road, and had threatened her with bodily injury, civil proceedings and fines if she passed over the road again. Appellee stated in verifying the bill that the allegations thereof were true, except as to matters which were stated to be upon information and belief. None of the allegations of the original bill were made upon information and belief, but were positive and direct, and properly verified. The failure of the affidavit to state facts showing that appellee’s rights would be unduly prejudiced unless an injunction issue without notice did not render it obnoxious to Section 3, supra. If it be true that the injunction was issued without notice the objection has been nevertheless waived, since a motion to dissolve operates as a waiver of the irregularity (High on Injunctions, sec. 1615), in as much as such a motion operates as a demurrer to the bill. Williams v. Chicago Exhibition Co., 188 Ill. 19. Moreover, the parties have had a hearing on the motion, and all the benefit the notice could have procured them. Rich v. Mulloney, 121 Ill. App. 503. Even if the irregularity arising from the failure to give the statutory notice was not waived by the making of a motion to dissolve upon the face of the bill, it can be said that it does appear from the allegations of the bill that the rights of appellee would have been unduly prejudiced if the injunction had not been issued without notice.

The allegations of the original bill were extended and amplified by the amendments so as to read that there had been a well defined traveled track used by appellee and her grantors and the public; that in the change in the part of the road appellee’s father reserved the right of travel over the old track; that in or about the year 1865 the easement was granted to Frank Blust by L. H. Mann, a former owner of the servient estate, and that said road had been used continuously by appellee and her father, or grantors, under claim of right for more than 20 years last past, adversely to the owners of the land over which the same passed.

It is true that the bill states conclusions in a number of instances rather than facts. As amended it alleged that both the father of appellee and appellant Lewis J. Craig did work on this road, and that in some former litigation concerning it in which Frank Blust was a party, appellant Lewis J. Craig testified that this was a road. Since the bill as amended charged that the easement had been a traveled road, used by appellee and her predecessors in title for more than 20 years before the bill was filed, and that snch nse had been adverse, uninterrupted and continuous under claim of right and without consent or license from the owners of the servient estate, and that such use was recognized by the former successive owners thereof, we conclude that the injunction should not be dissolved on' the ground that the bill, in some instances, states conclusions rather than facts.

It is urged that the bill does not show that appellant Sophia Craig was a party to the change in the location of the .road. As before stated, it does charge that she and appellant, Lewis J. Craig, placed and maintained gates along this way where the same crossed fences. We think this is a sufficient recognition by her of the change in the location.

The will through which appellee claims title from her father to the dominant estate is made an exhibit to the bill. However, it does not allege that the will had been admitted to probate. Because of the absence of such an allegation, it is urged that the title to the dominant estate is not shown to be in appellee. If the will has been admitted to probate, she has the title. H it is hereafter probated, she will have the title. If it is never admitted to probate, she is one of the heirs of the testator and as such is a tenant in common with the other heirs, and if the facts alleged are true she has a right to the nse of this road, and her rights to its use are the same in either case.

The will showed that the devise of the dominant estate was charged with the support of appellee’s mother, and it is urged that the bill does not show that she has complied with such conditions. The bill states that-she and her mother, having no other place of abode, would be confined as in a prison if said obstructions were maintained. This we think a sufficient answer to appellants’ contention in this particular.

We are of the opinion that the bill, on its face, as amended, shows sufficient equity to authorize the retention of the interlocutory injunction, at least until a trial can be had upon the issues formed by an answer. Therefore the order of the lower court, overruling the motion to dissolve the injunction, is affirmed.

Affirmed.


text:
    O. B. Olson, Plaintiff in Error, v. Frank W. Whiffen et al., Defendants in Error.
    Gen. No. 5,633.
    1. Judgments—form of final. A judgment dismissing plaintiff’s. suit on his election to stand by counts to which a demurrer was sustained, should, to make it a final judgment, contain a statement to the effect that the court considers “that the plaintiff take nothing by his writ and that the defendants go hence without day.”
    2. Appeals and ebbobs—when judgment may Be treated as final on appeal. Where a judgment is entered dismissing plaintiff’s suit on his election to stand by counts to which a demurrer was sustained but not in terms disposing of the counts or of the rights of the parties, it may be treated as final on appeal where the dismissal is assigned as error, but is not argued and is not harmful to the plaintiff.
    3. Contbacts—what void for lacle of mutuality. A written contract contemplated by an oral agreement is void for want of mutuality, where it fixes certain prices at which defendants shall sell certain articles to plaintiff and provides that he can order them if he wishes, but does not bind him to take any.
    Error to the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    Albert E. Bergland and Sturtz & Ewan, for plaintiff in error.
    Anderson & Andrews, for defendants in error.
   Mr. Justice Willis

delivered the opinion of the court.

O. B. Olson, plaintiff in error, hereinafter called plaintiff, commenced this suit in assumpsit against Frank W. Whiffen, Fred W. Dafoe, Bolán L. Hepler and Maria B. Hepler, defendants in error, hereinafter called defendants, to recover damages for the breach of a verbal contract to enter into a written contract.

The declaration contained the common counts and two special counts. The first special count alleged that the defendants were engaged in the manufacture and sale of a capping machine, a bottle filler and a bar bottle and were desirous that plaintiff should take the agency for the sale of said articles; that on October 27, 1910, in consideration of his promise to place said articles upon the market, and promote their sale, the defendants promised that they, ■ on request of plaintiff, would enter into and deliver to him a written contract, by which he was to receive said articles on demand at certain prices and have the exclusive right to sell them in all territory for the full period of five years; that after making said verbal agreement he advertised said articles, and to promote their sale employed salesmen at his own expense, and that as a result of his efforts a demand existed for said articles and that his profits had accordingly increased; that he had repeatedly demanded that the defendants enter into said contract, but that they refused to do so and that by reason thereof he has sustained damages in a large amount. The second count was like the first, except that it alleged that the defendants promised that they would, within a reasonable time thereafter, enter into the contract stated in the first count.

The defendants demurred to the declaration generally and specially. The ground of special; demurrer was that the declaration shows that the cause of action therein set forth is obnoxious to the statute of fraud, in that it shows on its face that the alleged promises were not to be performed within one year from the making thereof, and that it fails to show that the evidence of such alleged promises was in writing. The demurrer was sustained as to the special .counts and overruled as to the common counts. The plaintiff dismissed the common counts and elected to stand by the special counts. The court dismissed the suit at plaintiff’s costs.

It will be observed that this judgment did not, in terms, dispose of the rights of the parties. To make it a final judgment, it should, according to the authorities, have contained a statement that, “It is considered by the court that the plaintiff take nothing by his writ and that the defendants go hence without day,” or words of similar import, disposing of the entire subject-matter of the litigation. Freeman on Judgments (12th Ed.), sec. 16; Black on Judgments, sec. 31; Wenom v. Fossick, 213 Ill. 70. The dismissal of the suit is assigned for error, but it is not argued and indeed it is not harmful to plaintiff. Therefore we will treat the judgment as final.

The contract which the declaration says it had been agreed should be put in writing, and remain in force five years, fixed certain prices at which defendants should sell the articles named to plaintiff, but it contained no provision binding plaintiff to take any goods whatever from the defendants. He could order them if he wished or could entirely fail to order any. If the proposed contract had been signed, defendants could not compel plaintiff to buy a single article from them. To make a valid, executory contract, there must be at least two parties capable of contracting and both must be bound thereby. The promises of each party must be concurrent and obligatory on both at the same time to render the promise of either binding. This is essential as a consideration. If only one is bound, there is no consideration for the promise of the other, and such promise consequently is a mere nudum pactum. McKinley v. Watkins, 13 Ill. 140; Olney v. Howe, 89 Ill. 556. It cannot be doubted, we think, that the contemplated contract was unilateral and void for want of mutuality under the repeated decisions of the courts of this and other states. Vogel v. Pekoc, 157 Ill. 339; Higbie v. Rust, 211 Ill. 333; Bailey v. Austrin, 19 Minn. 533; Davie v. Lumberman’s Mining Co., 93 Mich. 491; Joliet Bottling Co. v. Brewing Co., 164 Ill. App. 490; same case, 254 Ill. 215. Therefore, plaintiff can have no cause of action for a failure of the defendants to enter into a void contract, and the court properly sustained the demurrer, regardless of whether or not the statute of frauds may be raised in an action at law by demurrer.

The judgment of the trial court is therefore affirmed.

Affirmed.