author: Mr. Presiding Justice Shirley

text:
    William Jones, Appellee, v. T. S. Vickers, Appellant.
    1. Sales—delivery. When the only dispute is as to time for delivery and the duty of the seller to cover corn sold, and defendant testifies that he ordered delivery to be delayed until he could get a boat, but that the order was disregarded, and on the other hand plaintiff and his agent testify that an order was given to deliver at a certain time which was done, and the buyer paid for the weighing, a finding of delivery in accordance with the contract is supported.
    2. Custom—evidence. A trade custom requiring the seller to cover corn delivered at a river bank for shipment is not established where the buyer and another testify that it is the custom of the seller to keep corn dry and in good condition until shipment, but two witnesses for the plaintiff testify that the custom was to put dunnage under the corn, but not to cover it.
    3. Instructions—cure of error. It is not necessary to consider alleged erroneous instructions as to interest, where the interest is remitted in the Appellate Court.
    4. Instructions—when erroneous. An instruction is erroneous which provides that the jury should find for the plaintiff if they believed from the evidence plaintiff had proved the material allegations of his declaration.
    5. Instructions—not based on evidence erroneous. An instruction not based on the evidence is erroneous.
    6. Instructions—harmless error. Erroneous instructions will not reverse, unless they misled the jury to the appellant’s prejudice.
    7. Costs—when may be against appellee though judgment is affirmed. Costs may be awarded against the appellee, though the judgment is affirmed, when it was in excess of the ad damnum in the declaration, and is cured on appeal by remittitur.

      Assumpsit. Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 27, 1912.
    Charles Durfee, for appellant.
    John W. Browning, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee brought suit in assumpsit to recover the price of a lot of corn sold and delivered to appellant. He recovered á judgment for $998.51 but has entered a remittitur of $25.35 in this court, thereby reducing the amount of the recovery to $973.16.

There is no dispute that appellee contracted with appellant to deliver to him at the river preparatory to shipment, the com at the price of sixty-eight cents per bushel, and that he did deliver there two thousand three hundred and eighty-seven bushels. The dispute arises as to when it was to be delivered, and whether after it was delivered at the river it was the duty of appellee to cover it so as to protect it from the weather until it was shipped. The com after being delivered at the river remained exposed to a rain fall of three or four days and was damaged by sprouting, and appellant, claims he is entitled to deduct the amount of the damages from the contract price. Upon the question- whether the com was delivered according to the agreement the evidence was conflicting.

The means employed by appellant in shipping corn from this point was by boat which was at times irregular on account of low water. He testified the agreement was, the corn was to be shelled, sacked, and hauled to the bank of the river where he could get it with a boat and that he was to send the sacks; that he got word by telephone the corn was shelled from a Mr. Weeks; that he answered it was impossible to receive it that he could not get a boat on account of low water but would let the parties who were to deliver corn know as soon as he could get a boat. The boat came after the com April 13 and appellant came with it; he then found the com had been hauled to the bank on April 5 and that meanwhile it had been exposed to the rain and was sprouted and damaged. Appellant claims the corn was prematurely hauled to the bank before he agreed to receive it as it was not to be hauled until he could get a boat and by reason thereof it was exposed to and damaged by the rain, and such damage should be borne by appellee. He further testified that by reason of the damaged condition the com netted him sixty cents per bushel. Appellant was not at the landing himself when the corn was hauled there and it was weighed by one Willis.

The agreement with appellant for the sale of the corn was made by M. 0. Clanahan who testified he made the sale of the com of several persons including appellee and himself. He states that appellant offered sixty-eight cents and he told him to consider the corn sold; that appellant said he would ship the sacks as soon as he could and the sacks came; that the sellers shelled the corn and waited for orders to put it on the bank; that by direction of appellee Jones they got the corn to the bank Tuesday, April 5, for the boat next day but the boat did not come until the 13th and the corn was rained on and damaged after the 6th.

Appellee testified that after his corn was shelled he talked with appellant by telephone and was told by him to put the com out for Wednesday’s boat and that someone would be there to weigh it; that he put it out on Monday and that it was in good condition and continued so until after Wednesday when it rained three or four days; that the boat did not come until the next Wednesday. A Mr. Willis weighed the com and testified appellant paid him for weighing. Appellant says he did not authorize Willis to weigh it but also says something was said about Willis weighing it.

The evidence was sufficient to show a sale of the corn to appellant and a delivery as directed by him. When the corn was thus delivered it became his corn and remaining upon the bank for the arrival of the boat was at his risk unless appellee neglected some duty he owed respecting the care of the corn on the bank after delivery.

Appellee piled the sacks upon dunnage to keep it from drawing dampness but did not cover it with tarpaulins. There was no agreement that he would cover the corn but appellant claims the duty arose from a customer along the river of the seller of corn to keep it dry after it is delivered at the bank until a boat comes. The only evidence offered to prove a custom was that of appellant and one Kuebler. The former stated he had been buying corn along the river twenty years and it was the general custom to keep it in good condition until a boat came to receive it; the other witness stated it was the custom of the seller in delivering corn on the river bank to keep it dry and in g*ood condition until a boat could reach it. On the other hand a witness Clanahan stated he had been both a buyer and seller and that the custom at this place was that the com was to be sacked on the river bank and the seller was under no further obligation. Another witness Pierce said it was his custom and possibly of the trade to have dunnage put under it and it is left in that condition after it is weighed.

To be a good custom “it must be generally known and established and so well settled and so uniformly acted upon as to raise a fair presumption that it was known to both contracting parties and they contracted in reference to it and in conformity with it, * * * All the authorities concur in saying that if usage is relied upon it must be shown to be ancient, certain, uniform, reasonable, and so general as to furnish this presumption of knowledge by both parties.” (Bissell v. Ryan, 23 Ill. 570; Wilson v. Bauman, 80 Ill. 495; Coffman v. Campbell, 87 Ill. 98.) The evidence did not establish a trade custom.

Error is assigned upon instructions numbers 3, 4 and 6 given for appellee on the subject of interest. The jury allowed interest in the sum of $25.35 but as that has been remitted here it is not necessary to consider the instructions.

Error is also assigned upon instructions 2 and 7 given for appellee. No. 2 told the jury if they believed from the evidence plaintiff had proven the material allegations of his declaration, they should find for the plaintiff. The instruction was erroneous and has been so repeatedly condemned it should not find its way into a series of instructions. No. 7 was erroneous as there was no evidence upon which to base it. Erroneous instructions however will not reverse unless they have misled the jury to appellant’s prejudice. There was no dispute about the quantity of corn delivered and the agreed price and these instructions did appellant no harm.

The verdict was right and the judgment will be affirmed for the sum of $973.16, but inasmuch as the judgment below was in excess of the ad damnum in the declaration and which was cured by a remittitur in this court it is ordered that appellee pay the costs of this appeal.

Affirmed with judgment against appellee far costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    John T. Fry, Appellant, v. Charles M. Jenkins et al., Appellees.
    1. Negotiable Instruments Act-—alteration of date. The alteration of the date of a note is a material alteration under sec. 124 of art. 8 of the Negotiable Instruments Act.
    2. Alteration of instruments—ratification. Where an attorney on his own initiative alters the date of a note after it has been executed by the parties, in an endeavor to correct a mistake, a bill praying for a correction of the mistake and a foreclosure of the mortgage given as security for the note does not amount to a ratification of the attorney’s act.
    3. Alteration—spoliation. A material alteration of an instrument, by a stranger to the contract without privity of the grantee or obligee, is a mere spoliation and does not prevent a recovery on the instrument as it read before the alteration, provided its original tenor can clearly be shown.
    4. Reformation of instruments—mistake of fact. A court- of equity will not reform an instrument for a mistake of fact where it is not clearly shown to be common and mutual to both parties.
    5. Reformation of instruments—substituted note and mortgage. Where a new mortgage and note are made in substitution for the originals, a mistake as to the date of maturity relied upon by the mortgagor, as part of the consideration for making such new instruments, will not be corrected by a court of equity, nor will equity allow a foreclosure under the original mortgage.
    6. Reformation of instruments—substituted note and mortgage. Where a new mortgage and note are made in substitution for the originals, and a mistake as to the date is made but relied oh by the mortgagor, as part of the consideration for such substitution, an alteration by the attorney on his own initiative, in an endeavor to correct the same, will not prevent a recovery on the instruments as they read before the alteration.
    7. Equity—prayer for general relief. Where relief cannot be given in accordance with a special prayer, the court of equity may, under the prayer for general relief, grant such relief as complainant is entitled to, consistent with the case made by the bill.
    8. Equity—relief granted. Where a bill is brought to correct a mistake as to the date of a new note and mortgage made in substitution for the originals, or if that be denied, to grant foreclosure under the original instruments, and the complainant is not entitled to such relief, it is error not to decree a foreclosure of the new mortgage, where the bill contains a prayer for general relief.

      Foreclosure. Appeal from the Circuit Court of Hamilton county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 27, 1912.
    J. H. Lane, for appellant.
    Harry Anderson, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This was a bill filed by appellant praying to reform and correct an alleged mistake in a note and mortgage, and for a foreclosure of the mortgage. The chancellor after a hearing found the equities with the appellees, denied the prayer of the bill, and entered a decree dismissing it at the cost of appellant.

The evidence disclosed the following state of facts: On January 27, 1908, appellee Charles M. Jenkins executed to Irl Jenkins his note for five hundred dollars due three years from date, and to secure the payment of the note executed a mortgage on forty acres of land which had been conveyed to him by Irl Jenkins. The five hundred dollars so secured was for part of the purchase money of the land. On February 7, 1908, the note and mortgage were transferred by Irl Jenkins to appellant. After appellant had acquired the note and mortgage he sent them to G. Gale Gilbert, his attorney, at Mt. Vernon, who upon an examination of them wrote to appellant they were not in good form, and prepared another note and mortgage to be executed by Charles M. Jenkins to supply the originals. The new mortgage and note prepared by Gilbert were by mistake dated by him Dec. 28, 1908, instead of Jan. 27, 1908, the date of the original note and mortgage which the new note and mortgage were intended to supply. The latter note and mortgage were sent to Charles M. Jenkins to execute and were signed by him and sent to appellant who forwarded them to Gilbert to inspect and have recorded. When received by Gilbert he discovered the mistake in the date and without any direction from appellant or from Charles M. Jenkins, and with no intent to defraud, he on his own motion and without the knowledge of appellant changed the dates of the instruments to Dec. 28, 1907, although he intended to change the dates to correspond with the dates of the originals which as before stated were Jan. 27, 1908. The last note and mortgage contained provisions for a receiver, the payment of insurance and taxes and of solicitor’s fees in case of foreclosure, while the original mortgage contained no such provision being the usual short or statutory form of mortgage. Appellee Charles M. Jenkins observed the difference in the dates between the original and second notes and mortgages when he signed the latter, and testified he signed it as containing the provisions of solicitor’s fees, taxes, etc., and signed it in that form because he saw it would save him almost one year’s interest, and that he would not have signed it if it had been dated as of the date of the original mortgage.

The specific prayer of appellant’s bill was in the alternative that the court would reform the second note and mortgage so as to make the dates conform to the dates of the original note and mortgage and decree foreclosure, or if that relief was denied that the original note and mortgage which had been surrendered be foreclosed.

It is recited in the decree as a reason for the findings of the chancellor that “the court finds the note in question was changed and altered without the knowledge and consent of the maker”, and the position of appellee’s counsel is that the alteration of the dates in the note and mortgage made by Gilbert being a material one it had the effect of invalidating the instru-ments and destroying the mortgage as a lien so it could not be foreclosed. It is not claimed that appellee made the alterations himself or that they were made by his direstion, but it is urged that the alterations having been made by his attorney Gilbert, he ratified the acts by filing a bill to foreclose the mortgage after knowledge of the alterations and therefore he should have no relief in a court of equity. The alteration of the note was a material one under Sec. 124 of Art. 8 of the Act of 1907, entitled “Negotiable Instruments,” but Gilbert had no authority to alter it and even if such act of alteration could be ratified (being in violation of a statute) there is no evidence of any ratification by appellant of the act of Gilbert in altering the date. It is contended that the filing of the bill to foreclose was in some way a ratification. On the contrary the bill set forth to the court all the facts and circumstances of the alteration, and while it specifically prayed a correction of a mistake and a foreclosure of the mortgage or in the alternative of the original mortgage, this was no ratification of Gilbert’s act in making the alteration.

We are unable to see how the circumstances shown in evidence can deprive appellant of his lien. What act has he committed that it should operate to take away his right to enforce the lien of his mortgage? He has been guilty of no fraud or attempt to defraud the mortgagor. Even if the act of Gilbert could be said to operate as a fraud upon the mortgagor which was not intended, appellant is not to lose his lien for the act of Gilbert with which he had nothing to do, which was not within the scope of Gilbert’s authority as his attorney, and of which he has sought no undue advantage. Under this evidence it is not necessary to determine what effect the alterations would have had upon the lien if appellant had been a party to it, or sought to take advantage of it.

“A material alteration of an instrument fraudulently made by its holder deprives the wrongdoer of all rights by virtue of it, but where the alteration was not fraudulent although the identity of the instrument may be destroyed it should not cancel the debt of which the instrument is merely evidence.” (Vogle v. Ripper, 34 Ill. 100.) It was further said in that case that in a court of equity a mortgage is regarded as an incident of the debt, and if there was no attempt to defraud there is no reason why a court of equity should not assist the creditor as far as it can consistently.

But in the view we take of this case it is not necessary to invoke the rule in Vogle v. Ripper, supra, to preserve appellant’s lien. The evidence tends to show that Mr. Gilbert was authorized to supply the old note and mortgage with the second note and mortgagee executed by the mortgagor, but the evidence further shows he had no authority from appellant to make the changes in the dates which he made. As to this act he was a stranger to the agreement, was not in privity with appellant, and the act .was a mere spoliation. In 2nd Am. & Eng. Ency. of Law, 2nd Ed. 213, it is said the decisions of the courts in this country are now unanimous that a material alteration of an instrument by a stranger to the contract without the privity of the grantee or obligee is a mere spoliation, and though made without the consent of the party bound by the writing does not prevent a recovery on. the instrument as it read before the alteration, provided only its original tenor can be clearly shown. This text is supported by many decisions including Bledsoe v. Graves, 5 Ill. 382.

Appellant was not entitled to the specific relief prayed in his bill. He was not entitled to a foreclosure of the original mortgage as it was supplied by the second. He was not entitled to a reformation of the second mortgage as prayed, for the reason that the mistake was not a mutual one. There was a mistake on the part of Mr. Gilbert in the dates in preparing the note and mortgage but none on the part of the mortgagor. To authorize a court of equity to reform an instrument for a mistake of fact, the mistake must be common and mutual to both parties and the evidence clear and satisfactory.

A mistake on one side is not ground, for reformation. Sutherland v. Sutherland, 69 Ill. 481; Warrick v. Smith, 137 Ill. 504; Purvines, v. Harrison, 151 Ill. 223.

There was a general prayer in the bill for such other and further relief as the nature of the case might require and as should seem agreeable to equity and good conscience.

“If the complainant mistake the relief to which he is entitled in his special prayer, the court may under the prayer for general relief grant such relief as he is entitled to, consistent with the case made by the bill.” Stanley v. Valentine, 79 Ill. 544.

The court should have decreed a foreclosure of the second mortgage, and it erred in entering a decree dismissing appellant’s bill and in adjudging the costs against him. The decree is reversed and the cause remanded with directions to grant appellant a decree for foreclosure upon the second note and mortgage as of the date they bore when signed by the mortgagor, to wit, Dec. 28, 1908, and to allow interest from that date.

'Reversed and remanded with directions.


text:
    Randolph Redin, Appellee, v. Alton, Granite & St. Louis Traction Co., Appellants.
    1. Common carriers—sufficiency of evidence. A verdict for plaintiff in an action for injuries sustained by being thrown off a street car, cannot be said to be against the manifest weight of the evidence because the conductor, motorman, and three other witnesses testified that the plaintiff attempted to get off before the car stopped, while the plaintiff’s testimony to the contrary was corroborated by only one witness.
    2. Common carriers—custom of stopping cars. In an action for injuries, sustained by being thrown from a street car which, it was alleged, was started before the plaintiff had alighted, evidence that the defendant was accustomed to stop at that particular place to receive and discharge passengers, is admissible.
    3. Common carriers—instructions. An instruction to the effect, that a carrier must do all that human care, vigilance, and foresight could reasonably do consistently with the character and mode of conveyance, and the practical prosecution of its business to prevent an accident to a passenger while he is alighting from the car, is correct.
    4. Common carriers—instructions. An instruction to the effect, that defendant owed plaintiff “no duty with, respect to his alighting, and the mere fact that plaintiff arose and went out to the platform was not notice to the conductor that he wished to alight at that time and place,” is properly modified by inserting, “while the car was in motion,” after the word “alighting,” and “alone,” after the word “fact,” where there is evidence, that plaintiff got off at a usual stopping place and rang the bell as he went to the platform.
    Action in case for personal injuries. Appeal from the City Court of Granite City, the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Burroughs & Ryder, for appellant.
    M. R. Sullivan, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment recovered by appellee for injuries alleged to have been sustained as a result of the negligence of appellant.

It was alleged' in the declaration that appellee became a passenger on one of the cars of appellant’s street railway to be carried from Granite City to the village of Madison, where he desired to alight; that while appellee was endeavoring to alight from the car where it had come to a stop on Madison Avenue in Madison, at a point, thirty feet south of the south line of Third Street, the appellant having notice that appellee was in the act of leaving the car or by the exercise of reasonable care should have so known, and while appellee was on the steps of the car endeavoring to alight, appellant negligently started the car whereby appellee was thrown from the car and injured.

One of the errors relied on for a reversal of the judgment is the refusal of the court to set aside the verdict on the ground it was against the weight of the evidence.

Appellee boarded the car in G-ranite City to be carried to Madison. His purpose was to alight from the car at Third Street in Madison. The car did not stop at Third Street on that trip, but ran beyond to a point where the rear end of the car would be thirty or forty feet south of Third Street. The weight of the evidence shows it was customary and usual for the cars to stop at that point instead of on Third Street for the purpose of turning certain switch signals and that when cars stopped there passengers were accustomed to get on and off. It is contended that appellee did not alight from the car after it stopped but attempted to do so before it stopped, when he fell.

Appellee, a man over eighty years of age, testified that when he got on the car he took a seat inside; that when the car had nearly reached Third Street he rang the bell and went to the rear platform and was ready to get off there; that the car did not stop on Third Street, but stopped about sixty feet south of the street; that when it stopped he stepped down and was getting off the car when it started and threw him off onto the paved street. Appellee’s testimony as to being thrown from the car in the manner stated by him, was corroborated by a witness Louis Angel, who testified he was at Third Street for the purpose of boarding the car and saw the accident. The testimony of the conductor, motorman and three other witnesses tends to show that appellee fell from the car before it stopped. None of the witnesses saw him fall but the distance appellee was lying from the car after it stopped and the noise as of some one falling before the car stopped were circumstances from which the jury might have found the material averment in the declaration that he was thrown from the car by starting it, was not proven. The credibility of the witnesses and the weight of the evidence, however, were questions for the jury and the verdict, after considering all the eireumstances, was not so manifestly against the evidence that it should have been disturbed.

It is next contended that the court committed error in admitting evidence of the custom or habit of appellant of failing to stop at Third Street in the operation of its cars, and of stopping them a short distance south of Third Street and of receiving and discharging passengers at that point. It is said there was no charge in the declaration of negligence in failing to stop at Third Street. This is true. The gravamen of the declaration is the charge of negligently starting the car while appellee was in the exercise of care attempting to alight. If appellant was accustomed to pass over Third Street with passengers and discharge them at the point where the car stopped it was its duty to use care to safely discharge them there, and such evidence was material as bearing upon appellant’s alleged negligence in starting the car before appellant had a reasonable time to alight as the evidence of appellee showed. Such custom was also material to be shown as bearing upon the degree of care exercised by appellee in attempting to alight at that point, he having stated that he rode those cars almost every day. Counsel for appellant cite West Chi. St. R. R. Co. v. Torpe, 187 Ill. 610, in support of the contention that such evidence was not admissible. It was said in that case that the vital point in controversy was whether the train which the deceased attempted to board was running slowly or at full speed and it was error to admit evidence in corroboration of evidence that the train was running slowly, that the company was accustomed to stop its trains or run slowly for the purpose of receiving passengers.

The question there was whether that particular train .was running slow or fast, and the testimony as to how the company usually ran its trains there was irrelevant, and did not tend to prove at what speed the particular train was running. The question in this case was whether appellant was accustomed to stop beyond Third Street to receive and discharge passengers as bearing upon the question of negligence at the time appellee attempted to leave the car and was a different question from the case cited.

It is complained that appellee’s first instruction was wrong. The instruction told the jury it was appellant’s duty as a carrier to do all that human care, vigilance and foresight could reasonably do consistently with the character and mode of conveyance and the practical prosecution of its business to prevent an accident to appellee while he was riding upon or alighting from the car, and if appellant failed to use such care and thereby appellee was injured as alleged in the declaration while he was in the exercise of care appellant should be found guilty. This instruction correctly states the measure of the carrier’s duty to the passenger (Union Trac. Co. v. Lowenrosen, 222 Ill. 508), but it is said while the instruction would be proper where there was a general charge of negligence it was not so where there was a specific charge as in this case, and that by reason of the evidence that appellant was accustomed to pass over Third Street the jury would infer the failure to stop there was not exercising the required degree of care. The declaration did not aver any negligence in running beyond Third Street. The only negligence averred was in starting the car before appellee had safely alighted therefrom, and all the evidence was directed to such negligent act and no other. This instruction and others limited the negligence of appellant to that alleged in the declaration, and we are unable to see how the jury could have been misled to infer some supposed negligence of which there was neither averment or proof.

Appellant asked an instruction to the effect that unless the conductor had notice that appellee wished to alight the company owed him no duty with reference to his alighting, and would not be negligent in starting the car before he alighted, and the mere fact that appellee arose and went out to the platform was not notice to the conductor that he wished to alight at that time and place. The court modified the instruction by inserting that the company owed appellee no duty with reference to his alighting while car ivas in motion and that the mere fact alone that appellee went to the platform was not notice to the conductor that he wished to alight. The modification is in italics and it is complained was erroneous. The evidence showed that passengers were discharged and taken on at that place, and this was not disputed. In such case it is the duty in the exercise of that degree of care the law imposes, for the carrier not to start the car after stopping until all passengers who are in the act of leaving the car have an opportunity to do so. Appellee went to the platform with his bundles to leave the car after he had given the signal to stop at Third Street. This was sufficient notice to the conductor that he desired to alight there, and sufficient to charge appellant with the duty to observe the care required by the law toward him as a passenger intending to leave the car. It was appellant’s duty under the circumstances not to start the car while he was in the act of alighting' or until it was found he did not intend to alight, and the modification which by-inference told the jury it owed him the duty after the car stopped was not erroneous. Even if the instruction as asked had stated a correct principle the modification that the mere fact “alone” that appellee went to the platform was not notice to the conductor he intended to alight, was proper, in view of the testimony of appellee that he had also given notice by a signal to stop at Third Street.

No error appearing the judgment is affirmed.

Affirmed.


text:
    Wilbur Spearhaus, Appellee, v. Terminal Railroad Association, Appellant.
    1. Railroads—negligence. Counts which aver that the defendant railroad company was under a duty to furnish a watchman to warn plaintiff and other workmen of the approach of trains, because said company had assumed to do so, and that said watchman negligently failed to warn the plaintiff of the approach of a train, and also that the company consented that plaintiff and others might enter upon the work and that while plaintiff was so engaged the company negligently operated a train without lights or other warning whereby plaintiff, while exercising due care, was injured, state a good cause of action.
    2. Railroads—pleading. Where a railway company agrees with an electric railway company to furnish watchmen to warn servants of the latter of the approach of trains while certain work is being performed, a count of a declaration in an action by a servant of the electric company against the railway company alleging a duty to furnish a watchman, and negligent failure of the watchman furnished to warn the plaintiff, is not based on a failure of duty arising out of breach of contract, but upon the negligent act of the servant of the railway company.
    3. Railroads—negligence. Where a railway company agrees to furnish watchmen to warn workmen of an electric railway company of the approach of trains, if the railway company owes any duty to protect such workmen and they are led to rely on a warning and are injured by a negligent failure to give it, the railway company is guilty of negligence, and the alleged agreement between the companies is immaterial to the workmen since they cannot avail themselves of a breach of it, or be bound by it.
    4. Variance—when not substantial. The variance is not material where counts charge that plaintiff was engaged in a tunnel in constructing and erecting wires, and while so engaged an engine collided with him, and the evidence is that he entered the tunnel on his way to work carrying a ladder, and that the ladder was struck by an engine injuring him.
    5. Railroads—care to protect invitees. Where a railway company agrees to allow workmen of another company to put wires in a tunnel, and to furnish a watchman to warn them of the approach of trains, the fact that such other company also furnishes watchmen does not relieve the railway company of its duty to use reasonable care to protect its invitees, and whether care commensurate with the peril was used, is a question for the jury.
    6. Instructions—when alleged error in refusing waived. Alleged error in refusing instructions will be deemed to have been waived where no reason is given why they should have been given.
    Action in case for personal injuries. Appeal from the City Court of Bast St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    T. M. Pierce and Kramer, Kramer & Campbell, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

After verdict there was a judgment in this case in favor of appellee, from which appellant has appealed to this court. The record shows that appellant at the close of the evidence asked an instruction directing a verdict for appellant which was refused. Error is first claimed on this ruling on the ground the declaration which was composed of three counts stated no cause of action.

The first count charged that appellant was operating a tunnel in the State of Missouri commencing at or near the west bank of the Mississippi Kiver and running thence under the City of St. Louis, and operating railroad tracks extending west in said tunnel and over the Eads Bridge across the river extending east, and was operating trains over said tracks; that at that time and prior thereto the E. St. Louis & Suburban Railway Company hereinafter called the railway company, operated a street railway over said bridge from East St. Louis to St. Louis by electricity, and in order to supply the electric current it had constructed and maintained some of its wires in said tunnel; that appellant consented to such construction and maintenance and agreed to and did furnish said railway company a watchman to protect and warn its servants against approaching trains of appellant in said tunnel while the servants of said railway company were engaged in constructing said wires in said tunnel, and that while said servants were so engaged in constructing and erecting said wires and the watchman of appellant was present with the servants of the railway company for the purpose aforesaid, and while the servants of said railway company were entering said tunnel and approaching the point therein where said wires were to be constructed, appellant drove a certain engine and train of cars from the City of St. Louis toward and up to the point where the servants of the railway company were constructing said wires, and said watchman negligently failed to warn • the said servants of the approach of the train, whereby appellee who was employed by said railway company and who was attempting to get to the point where said wires were to be constructed or erected without knowledge or means of knowledge of the approach of said engine and train, and while in the exercise of care, was struck by said engine and injured.

The first count is based on the duty of appellant to furnish a watchman to warn the servants of the Electric Railway Company of approaching trains arising out of an assumption on the part of appellant to do so, and it is charged that the negligent failure of the watchman to so warn appellee was the cause of the injury. No other breach of duty is charged in that count.

It is argued that the alleged agreement to furnish a watchman being between the appellant and the railway company, appellee could not avail himself of a breach of it as it was not made for his benefit.

The count is not based on any failure of duty to appellee arising out of a breach of contract, but upon the negligent act of the servant of appellant which it had provided for the purpose of warning appellee of approaching trains after assuming to do so. If appellant owed appellee any duty to protect him from danger while on the premises and he was led by appellant to rely upon a warning for that purpose, and was injured by a negligent failure to give it, appellant was guilty of negligence and in such case it was immaterial so far as appellee was concerned that appellant had agreed with the railway company to furnish such watchman. Appellee not being a party to the agreement could not avail himself of a breach of it, neither could he be bound by it. “The true question always is has the defendant committed a breach of duty apart from the contract? If he has committed a breach of duty he is not protected by setting up a contract in respect of the same matter with another person.” (Whitaker’s Smith on Negligence, page 10.)

The averments of the count further show a duty to exercise reasonable care toward appellee while upon appellant’s premises. It is charged that appellant consented to an erection and construction of the wires thereon.

“If an owner or occupier of land either directly or by implication induces persons to come upon his premises, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the persons there by his invitation shall not be injured by them or in their use for the purpose for which the invitation was extended.” Hart v. Washington Park Club, 157 Ill. 13. In Lake Shore & Mich. Sou. Ry. Co. v. Bodemer, 139 Ill. 609, it was said, “A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition suitable for such use and for a breach of this obligation he is liable-in damages to a person injured thereby. ’ ’

The second and third counts charge that appellant consented that appellee and other servants of the railway company might enter said tunnel to construct wires, and that while appellee was in the tunnel in the construction of said wires, appellant negligently operated a train therein by failing/ to have a light and by failing to sound a warning whereby, while appellee was in the exercise of care for his own safety, he was injured. All of said counts stated a good cause of action.

It is next urged there was a variance between the allegations and the proof in each count of the declaration and this question was raised on the trial by motion to exclude the evidence. The counts charged that appellee was engaged in the tunnel in constructing and erecting wires and while so engaged the engine collided with him. The evidence was that he had entered the tunnel on his way to work with the other men so engaged and was carrying a ladder upon his shoulder and that the ladder was struck by the engine injuring him. This variance does not appear to be a substantial and material one. The evidence shows appellee was engaged in the tunnel in the construction of wires in which work the ladder was used, and it would be too narrow a construction of his work to confine it to simply putting up wires. His going to and fro in the tunnel in pursuit of the work was part of it and appellant had furnished a watchman during the whole work. Proof that the engine struck the ladder he was carrying instead of striking him, is sufficient proof of the averment that the engine collided with him. The ladder was part of him at the time.

It is also contended the evidence does not sustain the declaration. The evidence shows that when the work was contemplated the railway company asked appellant to furnish a flagman for the protection of the men of the railway company on the steam tracks of the lower roadway as they would have to use a ladder in doing the work, and appellant responded that it would make the necessary detailed arrangements so that the railway company could do the work and at the same time be properly protected against trains. The tunnel was a dark and dangerous place in which to work, or to be. There were two tracks to accommodate the movement of trains each way and a train passed one way or the other every five minutes. Appellant realized this when it gave permission to construct the wires and said the men would be properly protected from trains. There was evidence that the guard or watchman furnished by appellant watched for appellee and the other servants of the railway company from the time the work commenced on the east end of the bridge on Monday, and continued while it progressed across the bridge and into what was called the tunnel. On Wednesday the wires had been constructed to about Second Street, some distance into what was called the .tunnel. The tracks were not yet under ground there, but were enclosed on all sides and the place was dark. On Thursday morning appellant’s watchman met appellee and the other men with him at the east end of the bridge and went across with them. When they had gone into the tunnel they had about reached - the place where the work was to be resumed. Appellee was coming a short distance behind in the tunnel. He carried a fourteen-foot ladder. A freight train passed on the south track going west and left a dense fog of smoke and steam in the tunnel. While they were waiting for that train to pass, a passenger train carrying no lights and giving no warning suddenly came through the tunnel from the west. Some of the men barely escaped being struck by this train. This was the train which struck the ladder while appellee was walking between the tracks. There was no warning by the flagman of the approach of that train.

While it appeared that appellant’s watchman was voluntarily assisted in watching for and giving warning of trains by one, and sometimes two servants of appellee as a measure of greater precaution, this did not relieve appellant of the duty to use the reasonable care required by the law to protect those it had invited there. It was a place of great peril, and it was appellant’s duty to use care commensurate with such peril while the servants of appellee were on the premises. This it assumed to do and whether it did so was a question for the jury. It is claimed the evidence does not show the employes of the railway company were relying upon the watchman to protect them while they were going to and from the work, and that as they walked some distance apart it would be impossible for one man to guard them. What the watchman had done was to watch for trains and to warn, and this the employees of the railway company would naturally expect him to do. We think the evidence does not show they were not relying upon such protection, and they were not so far apart that warning to all could not have been given if reasonable care required it.

The evidence in the case shows an invitation upon the most dangerous of premises, a failure to warn as appellant had warned from the beginning of the work, and the operation of the train that caused the injury without signal or light, and this when appellant had notice of the presence of the men on the premises.

There was no error in refusing to instruct the jury to disregard either count of the declaration. The evidence was sufficient that appellee was in the exercise of reasonable care, and that appellant was guilty of negligence and the court committed no error in not directing a verdict, nor in refusing to set aside the verdict of the jury.

It is said that the injury having occurred in the State of Missouri, the law of the case as to appellant’s responsibility must be governed by the law of that state and a number of decisions of its courts of review are cited. All the cases cited are upon questions of the contributory negligence of the plaintiff where the facts were entirely dissimilar to the facts in this case, and are not controlling.

Appellant complains of the refusal of the court to give several of its instructions but as no reason is pointed out why they should have been given, error assigned thereon will be deemed to have been waived.

The judgment will be affirmed.

Affirmed.


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    J. S. Kendall, Trustee, etc., Appellee, v. Kroeger-Amos-James Grocer Co., Appellant.
    1. Bankruptcy—preferences. On action by a trustee in bankruptcy to recover an alleged preference, given within four months of the adjudication, the jury was warranted in finding that a preference was intended when the evidence seemed to show that the bankrupt was insolvent, that an agent of the transferee had reasonable cause to know of his condition, and that the bankrupt and transferee intended a preference.
    2. Appeals and errors—when question not saved. On action by a trustee in bankruptcy to recover a preference, alleged error in permitting a schedule by the bankrupt, which had been excluded as evidence, to be taken by the jury on retirement, cannot be urged on appeal, when it was raised on motion in arrest of judgment, and not on motion for new trial.
    3. Judgments—motion in arrest. A motion in arrest of judgment must be based on matter arising on the record proper.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Sprigg & Gilster, for appellant.
    W. A. Schwartz, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee as trustee in bankruptcy of Joseph Edward Fraley brought this suit to recover from appellant for an alleged preference made to it by the bankrupt. A jury returned a verdict in favor of appellee for the sum of six hundred and thirty-three dollars and twenty-one cents upon which the court after overruling motions for a new trial and in arrest of judgment rendered judgment.

The errors assigned and argued are that the court refused to set aside the verdict, it being against the evidence, and also allowed a certain schedule made by the bankrupt to go to the jury room with the jury.

Sec. 60b of the Bankruptcy Act of 1898, provides: “If a bankrupt shall have given a preference and the person receiving it or to be benefitted thereby or his agent acting therein shall have had reasonable cause to believe that it was intended thereby to give a preference it shall be voidable by the trustee and he may recover the property or its value, * *

Fraley was adjudged a bankrupt on January 5,1911, and appellee was appointed trustee of his estate. Within four months of that date (November 20, 1910) Fraley had transferred to appellant a stock of groceries which invoiced five hundred and fifty-eight dollars and book accounts and some other articles to the amount of over six hundred dollars, from which appellant realized the sum of seventy-eight dollars and fifty cents, in addition to the amount of the goods.

The controverted question of fact submitted to the jury was whether appellant or its agent had reasonable cause to believe when the property was transferred to it that it was intended thereby to give a preference, and this question may be determined from the conduct of the parties and the nature of the transaction, together with all the facts and circumstances in evidence.

The testimony shows that at the time of the transfer Fraley was insolvent, and wholly unable to meet the demands of his creditors. He had no available property subject to the payment of his debts except the stock of goods and his book accounts, of which but a small part was collectible. His debts amounted to much more than his assets; the indebtedness to appellant alone being in excess of the value of his property while he had several hundred dollars of other debts. Fraley testified that he engaged in the grocery business on June 10, 1910, and continued until November 19 following; that before he began the business he was traveling as a salesman; that he told Amos, a member of appellant’s concern, he intended to start in the grocery business and Amos offered to sell him goods and give him all the time he wanted; that in pursuance of this appellant sold him the goods on credit. The testimony shows that Amos called on Fraley every week during the time the latter was engaged in business, when Fraley would give an order for goods and pay something on his account. This continued until Fraley’s account to appellant reached the sum of about nine hundred dollars. Fraley testified that on the Friday before the transfer of the stock to appellant Amos asked him how much he owed other people and that he was shown some of the invoices. Amos was, as the testimony of Fraley shows, familiar with Fraley’s condition; and that he was behind with other creditors; that he knew the extent of his obligations; that he could get no more credit; and the value of the stock of goods. Amos returned to St. Louis that evening and on Sunday following the representatives of appellant came to Carbondale and on Fraley’s statement that he was sick and behind with other creditors and could not meet their drafts they took over the stock and accounts of Fraley. While Amos testifies that in his opinion Fraley was able to pay his liabilities the testimony as already stated shows he was wholly insolvent, and unable to pay, and that it could be fairly inferred from all the circumstances that Amos knew this to be his condition. Gilster, the credit manager of appellant, who made the Sunday trip and took over the goods and accounts, testified Fraley made statements to him on that day that showed he was solvent, and able to pay his debts. From all the evidence in the case however the jury was warranted in finding that Fraley was insolvent; that appellant through its agent Amos had reasonable cause to believe it and that Fraley and appellant intended by the transfer to give appellant a preference over the other creditors whose drafts he could not meet. There was no error in the refusal of the court to set aside the verdict on the ground it was against the evidence. It was fairly a question for the jury.

The alleged error of the court in permitting a schedule by Fraley to be taken by the jury on its retirement and which had been excluded as evidence by the court cannot be urged here as it was not raised on the motion for a new trial, but was raised on motion in arrest of judgment. The question cannot be raised on the latter motion. The matter complained of did not arise upon the record proper upon which a motion in arrest can only be based. (Wallace & Holmes v. Curtiss, 36 Ill. 156.)

No error appearing, the judgment is affirmed.

Affirmed.


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    Forrest Mynor, Appellee, v. Hammar Bros. White Lead Co., Appellant.
    1. Master and servant—evidence. A count which alleges that plaintiff was ignorant of the dangerous condition of a steam valve and did not have equal means of knowledge with defendant is not supported by proof, that although plaintiff knew of such defect he had not assumed the risk.
    2. Master and servant—assumption of risk. The statement by one employee, not a vice principal, to another that a dangerous condition has been remedied does not release the latter from the assumption of risk.
    3. Master and servant—injuries sustained while complying with order of master. Where a servant has notice of the defective condition of a steam valve and the attending dangers, which resulted in his injury, he cannot recover therefor, though defendant, also knowing thereof, ordered him to turn off such valve.
    4. Master and servant—assumption of risk. Where the servant has equal opportunity with the master of knowing about defects and dangers, obedience to the order of the master does not relieve the servant from the assumption of risk.
    5. Negligence—subsequent condition. Evidence as to how long a valve remained in use, in the same condition, after an injury alleged to have been caused by the escape of steam, is properly excluded, where it is not offered for the purpose of showing the condition of the valve at the time of the injury.
    6. Rules of court—conflict with statute. Rules of court which conflict with a statute are invalid.

      7. Rules of court—motion for new trial. A rule of court that a motion for a new trial must he made within ten days is in conflict with Practice Act, § 77, which permits the motion to be made at any time during the term, and is therefore invalid.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    Ellerbe & Brokaw and Dan McGlynn, for appellant.
    N. C. Lyrla, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment for four hundred dollars damages recovered by appellee for injuries alleged to have been sustained by him in appellant’s factory. .

The declaration contained two counts. The first count charged that appellant had in its plant a steam boiler to which was attached a valve used to turn on and shut off steam; that it negligently permitted the valve to become, defective and insufficiently packed so that it leaked steam, which condition was known to appellant, or which by the exercise of reasonable care it might have known, and of which condition appellee was ignorant, and did not have equal means of knowing with the appellant; that in obedience to the order and directions of the appellant in attempting to close the valve, the steam escaped by reason of its defective condition, causing him to be severely burned and to fall from a ladder, whereby he was injured.

The second count charged that appellant negligently ordered appellee to ascend a ladder to turn off steam by turning a valve, the danger of which was known to appellant and unknown to appellee, and while engaged in obeying the order, in turning the valve, steam escaped by reason of the defective condition of the valve, whereby he was burned, and caused to fall from the ladder; and further averred such negligent order was the proximate cause of the injury.

Appellee had been in the service of appellant for two years as a stripper, taking tan bark off of lead. It was also his duty as an extra man to fire the boilers, and he had been performing this duty on Sundays for several weeks.

The valve complained of was several feet above one of the three boilers and was used to turn on and shut off the steam. The valve was opened and closed by turning a wheel in the valve stem which extended above the valve. To reach the wheel it was necessary to ascend a ladder about ten feet long on top of another boiler, the top of the ladder resting upon the steam pipe near the valve.

As to the manner in which appellee was injured the evidence was conflicting. His version of the circumstances was that on this occasion he was the extra man firing the boilers; that he was ordered by Duncan Winning, the engineer in charge, to go to the top of the boiler, climb the ladder and shut off the valve; that he obeyed the order; that while standing on a rung of the ladder he turned the wheel to close the valve, when the steam escaped around the stem in such volume that he attempted to close the valve to stop the* escape of steam, when the ladder slipped, as it was resting against the pipe, and he lost his hold and fell. He further stated that in the escape of the steam he was burned on the face and arms.

To support the first count of the declaration it was incumbent on appellee to prove that he did not know of the alleged defective condition of the valve and did not have equal means with appellant to acquire such knowledge. This was a material allegation and could not be supported by evidence that he did know of the defect but that the circumstances were such he had not assumed the risk. Republic Iron & Steel Co. v. Lee, 227 Ill. 246, and cases cited. Appellee himself testified that he knew the valve was leaking steam from two to four weeks before, and he had spoken of it to one John Bailey, another employee who worked as a fireman in the boiler room. Appellee sought to avoid the assumption of risk, arising from his knowledge, by showing that said Bailey had told him in a conversation that the valve had been packed. Appellee might have proved by competent evidence that the valve had been repacked after he had knowledge of its defective condition, but Bailey not being a vice principal, and not having any authority over appellee and having no authority to speak for appellant, his statement was inadmissible and could not release appellee from the assumption of risk. The evidence did not support the first count of the declaration.

Under the second count of the declaration, appellee relies on a negligent order, and the testimony on behalf of appellee at least tends to show a constructive notice to appellant that the valve was defective and shows also an order of the engineer, authorized to direct him; to shut the valve. Appellee having notice of the defective condition of the valve, which he says resulted in his injury, he cannot recover for obedience to a negligent order if he had full knowledge of the dangers that would result to him in performing the order. Slavik v. Cal Hirsch & Sons I. & R. Co., 143 Ill. App. 509. He testified that he had had several years’ experience in firing boilers, although he had not shut off this valve.

In addition to his statement that he knew the valve leaked steam, he further said he knew how to turn it off and on, how a valve was packed and how the steam was controlled in the valve, because he had taken them to pieces and looked at them; that he knew that packing keeps the steam from escaping; and that there was no place the steam could escape except through the valve stem. The valve was a simple contrivance and it is apparent from appellee’s statement that he knew as much about its operation as appellant knew, and knew if the packing was defective it would leak steam through the stem.

"Where the servant has equal opportunity with the master of knowing about defects and dangers, obedience to the order of the master does not relieve the servant from the assumption of risk. It is only where the servant is misled by the order that the exception to the doctrine of assumed risk exists. Republic Iron & Steel Co. v. Lee, supra; Elgin, J. & E. R. Co. v. Myers, 226 Ill. 366; Kresmar v. Omaha Packing Co., 153 Ill. App. 343.

The evidence shows that if appellee was injured in the manner stated by him, he assumed the risk and failed in his proof of the second count of the declaration.

The testimony of appellee of his conversation with Bailey, hereinbefore referred to, was admitted over appellant’s objection. The ruling was erroneous. Appellant also offered to prove by the engineer in charge how long the packing remained in that valve after the alleged injury. The court sustained an objection to the testimony. Appellant might have shown the valve was in use afterwards in the same condition and did not leak steam, as tending to show its condition at the time of the injury, but appellant did not offer such evidence. There was no error in excluding the proffered testimony.

There was a rule of court in which this cause was tried providing that in cases tried by jury the party intending to move for a new trial should, within ten days after the verdict was returned into court, file his motion in writing for a new trial with the clerk, and enter it on the motion docket; otherwise the right to file such motion should be deemed waived and final judgment pronounced. There was a proviso that the court might, for good cause shown, extend the time for filing the motion. The motion for a new trial in this case was not filed within the ten days fixed by the rule. Based upon appellant’s failure to file its motion within the rule, appellee has filed a cross-motion for judgment on the verdict. The same motion by appellee was made in the court below, hut the court overruled it and entertained and passed upon the motion for a new trial.

Rules of court which conflict with a statute are invalid. 18 Enc. Pl. & Prac. p. 1239; Linnemeyer v. Miller, 70 Ill. 244.

Either party may move for a new trial at any time during the term. Hurd’s Stat., c. 110, § 77. The rule of the trial court was in conflict with the statute and invalid. Appellee’s cross-motion is overruled.

The judgment will he reversed and the cause remanded.

Reversed and remanded.


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    George W. Stull, Appellant, v. The People of the State of Illinois, Appellee.
    1. Contempt—evidence. In a contempt proceeding in Jaw where the alleged contempt is not committed in the presence of the court, opposing testimony to defendant’s answers to interrogatories should. not be heard, and on purging himself by such answers he should be discharged.
    2. Contempt—proceeding in equity. In equity, the truth of the defendant’s answers to interrogatories may be controverted by opposing testimony.
    Appeal from the Circuit Court of Hamilton county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed October 7, 1912.
    Harry Anderson, for appellant; Conrad Schul and G. L. Ore, of counsel.
    J. H. Lane, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment upon a fine imposed by the Circuit Court of Hamilton county against appellant as a punishment for an alleged contempt of the court.

It appears from the record that the State’s Attorney filed a petition charging that one J. U. Porter had been subpoenaed as a witness to appear and testify before the grand jury; that appellant had induced Porter to leave the county and not to appear and testify, and that Porter failed to appear. Upon the filing of the petition the court ordered an attachment to issue, upon which appellant was brought into court and arraigned to show cause why he should not be punished.

In the investigation by the court, it heard the testimony of a number of witnesses introduced and examined by the State’s Attorney to support the charge in the petition, some of which testimony tended to prove the charge. The court also heard a number of witnesses on behalf of the defendant. After hearing all the evidence the court found the appellant guilty of a contempt of the court, and imposed a fine of one hundred dollars and the costs.

The appellant testified, and his testimony was a full and complete denial of the charge, and completely, purged him of the alleged contempt. All the appellant did in this case, if anything, is shown to have been done out of the presence of the court, and the proceeding was instituted to vindicate the majesty of the law by punishing the appellant for inducing a witness not to appear and testify before the grand jury. •

Proceedings for contempt are summary in their character, and have been exercised by the courts of justice to secure the orderly administration of the law as early as the annals of the law extend; and without the power to punish for contempt, the courts would frequently be powerless to enforce their decrees and orders. The power is necessary to judicial authority, and is inherent in every court of record.

The method of procedure in proceedings for contempt differs in courts of equity and law. In the former, the truth of the defendant’s statement, in reply to interrogatories filed, may be controverted on the other side and the whole matter inquired into and ascertained by the court. “In cases of common law, the defendant will be discharged, if, by his answer to interrogatories filed, he make such a statement as will free him from the imputed contempt and that opposing testimony will not be heard.” Crook v. People, 16 Ill. 537; Buck v. Buck, 60 Ill. 105. The same rule in proceedings for contempt is announced in Blackstone’s Com., book 4, marg. 10, 287, where the author says: “If the párty can clear himself upon oath he "is discharged, but if perjured he may be prosecuted for perjury.”

To the same effect is Loven v. People, 158 Ill. 159. In contempt proceedings other than in chancery cases where the alleged contempt is not committed in the presence of the court, the party accused may be attached and may either confess the contempt or may purge himself under oath, either in answer to interrogatories filed or by his oral testimony, and if he does purge himself he should be discharged and opposing testimony should not be heard. If he swears falsely he may be reprosecuted and punished for perjury.

Appellant on his testimony was entitled to be discharged, without regard to opposing testimony which the court in this summary proceeding could not hear and consider, and it was error to impose the fine. “The proceedings in the examination of witnesses were without warrant of law.” Welch v. People, 30 Ill. App. 399.

The judgment is reversed.

Reversed.


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    J. H. Ward, Appellee, v. The City of Du Quoin et al., Appellants.
    1. Cities and villages—power of council to contract. A city council cannot bind a city by any contract which is beyond the scope of its powers or entirely foreign to the purpose of the corporation.
    2. Cities and villages—power to hire expert accountants. A city council has power to employ expert accountants to examine the books and records of the city where in the exercise of their discretion they deem such investigation necessary..
    3. Cities and villages—special council meetings. The irregularity in calling a special meeting of a city council, without filing a” statement with the clerk setting forth its purposes and objects, etc., as required by ordinance, is cured where it appears that written notices were sent to all the aldermen stating the object of the meeting and that they were all present.
    4. Cities and villages—appropriation ordinance. Where no special appropriation has been made by the city council to defray the expenses of having expert accountants audit the books and records, the same may be paid out of the appropriation for miscellaneous purposes.
    5. Cities and villages—appropriation ordinances. The use of words “contingent,” “incidental” or “miscellaneous” as designating an appropriation under an appropriation ordinance amounts to the same thing.
    Appeal from the City Court of Du Quoin county; the Hon. Robert T. Cook, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 7, 1912.
    Nelson B. Layman, for appellants.
    M. C. Cook and E. H. Carr, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee, as a taxpayer and resident of the city of Du Quoin, filed his bill praying for an injunction to restrain the appellants, City of Du Quoin and Mayor and Board of Aldermen of said city, from allowing a claim of appellant, The Marwick-Mitchell Company, and from passing any appropriation ordinance for the payment from any funds of the city of said claim' or any similar claim. It was averred in the bill that at a meeting of the city council on July 7, 1911,- the council attempted to pass an appropriation ordinance and published the same on July 14, 1911; that the journal of the proceeding’s failed to show either a record of the yeas and nays, as required by ordinance, or a concurrence of a majority of the members elected to the council, and that by reason thereof the appropriation ordinance was void; that said ordinance does not contain any appropriation to be paid to expert accountants for examining the books, records and accounts of the several departments or any department of the city; that there was an attempted special meeting of the council on July 21, 1911; that no statement in writing calling for said meeting, as required by ordinance, was ever filed in the city clerk’s office, as required by ordinance, and that thereby the said special meeting was void; that at said special meeting a majority of the council voted to instruct the finance committee to employ expert accountants to audit the books of the city; that said auditing is a discretionary duty of the council and that said action was void; that said finance committee engaged appellant, The Marwick-Mitchell Company, to audit said books, which it did; that its work had been completed; that its bill would be not less than $750.00 and that its claim for the same would be presented to the council, and that it would be allowed unless the council was prevented by injunction. The bill prayed the city be enjoined from ordering the payment of the bill or any bill of The Marwick-Mitchell'Company out of the funds in the city treasury, or that might, thereafter come into the treasury, or from making any appropriation of any funds thereafter collected for the payment of said bill, of any similar bill for services theretofore or thereafter rendered for auditing the books of the city. Appellants answered, denying the material allegations of the bill, and averred the records of the city were incomplete, inaccurate, defective, untrue in many instances and in a chaotic state, so that it was necessary to employ the assistance of experts to aid the city officials in arriving at the correct financial situation of the city, and which condition was not known to the council until after the passage of the annual appropriation ordinance. It was further admitted that The Marwick-Mitchell Company was employed as experts; that its claim was just and that the council was disposed to pay it.

The cause was submitted upon oral evidence. The chancellor found the equities with complainant and entered a decree perpetually enjoining the city council from allowing and paying the claim of The MarwickMitchell Company, and restraining the latter from presenting any claim for its services or from instituting any suit at law or in equity to collect its claim for such services.

The testimony shows that appellant, The MarwickMitchell Company, was employed by the city council to audit the books of the city; that they performed the services and presented a bill for the same, amounting to the sum- of $770.41.

In support of the findings and decree of the chancellor, appellee relies upon the following propositions:

That the council had no power under the law and the ordinances to employ The Marwick-Mitchell Company to audit the books and accounts of the city.

That such auditing was provided for by the law and the ordinances of the city.

That there was no provision or item in the annual appropriation ordinance creating a fund from which such expense could be paid.

The only provision we find for the examination of the books and records of the city is section 26 of article 2 of the act entitled ‘' Cities, Villages and Towns,” which provides that the mayor shall at all times have power to make examination of the books, records and papers of any office of the city. Whether the city council may employ expert accountants to aid the mayor in the performance of that duty, or whether the duty is to be performed by the mayor without such assistance, the statute does not expressly say. Section 63 of the same statute, in defining the powers of the city council, authorizes the council to appropriate money for corporate purposes only, and provides for the payment of debts and expenses of the corporation.. This section by implication authorizes the council tó incur expenses, but only such as are within the scope of its powers. The council cannot bind the city by any contract which is beyond the scope of its powers, or entirely foreign to the purpose of the corporation. Dillon, Mun. Corp. (4th Ed.) § 457. In City of Chicago v. Williams, 182 Ill. 135, it was sought to compel the city to pay out of its contingent fund the expense of defending damage suits brought against the city officers for torts for which they were individually liable only. It was held in that case that the city could not lawfully contract for stenographic work done not for the city, but for officers of the city individually liable for their own torts. It was said: ‘ ‘ Public corporations may, by their officers and properly authorized agents, make contracts the same as individuals and other corporations in matters that appertain to the corporation. 1 Dillon, Mun. Corp. (4th Ed.) § 445. The matters, involved in the contract here in controversy, do not necessarily appertain to the municipality.”

It seems tó be within the general scope of the powers of the city council to contract in matters which pertain to the corporation. Where the books and records of a municipal corporation, whose officers have the custody and handling of the public revenues and funds, are in an involved and chaotic condition, it is manifestly to the interest of the municipality to have an investigation to determine whether there has been an honest and correct handling of the funds, and it is a matter which appertains to the municipality. While the mayor, as before stated, is clothed with the power of examination, it is for the council in its discretion to determine whether the investigation is one requiring the aid of skilled experts, and if so to employ them. When the council in this case unanimously directed the finance committee to employ expert accountants to examine the books, it was acting within the scope of its authority, and the employment of The Marwick-Mitchell Company was lawful, and it is not material whether it turned out to be wise or unwise; that was a question for the city council in its discretion to determine.

It is complained, however, that the special meeting of the council of July 21, at which the employment of experts to examine the books was directed, not being held in conformity with an ordinance providing for special meetings, was illegal. The ordinance provided that special meetings might be called by the mayor or any three aldermen filing with the city clerk a statement in writing, setting forth the purposes and objects of such special meeting, and directing the clerk to give notice thereof. The ordinance further provided that the clerk should immediately cause to be served upon each member of the council and the city attorney, personally, a notice of such special meeting and the time of assembling. The testimony of the city clerk shows that no statement in writing was filed with the clerk setting forth the purposes and objects of the meeting and directing him to give notice thereof; but his testimony further shows that he delivered and sent notices to all the aldermen, stating the obj ect of the meeting. It further appearing all the aldermen were present, this cured any irregularity in securing their presence, which is the only purpose of the direction to the city clerk, and the notice required to be given by the ordinance.

The motion having been adopted at the special meeting by the unanimous vote of the members of the council, the proceeding was legal. Schofield v. Village of Tampico, 98 Ill. App. 324.

It is contended that no contract can be made or expense incurred unless the objects of the contract or expenditure shall have been included in the annual appropriation ordinance, and as none was therein made to audit the books and records, this claim cannot be paid from any fund appropriated. It is true no appropriation was made for that special purpose, and at the time of the passage of said ordinance no such expenditure whs contemplated.

The total amount appropriated by said ordinance for divers purposes specified was $33,700. Among the items was one for $1,000 for “Miscellaneous” purposes. This is the only item in the ordinance that appellants claim can be expended for the purpose of auditing the books, and it is earnestly insisted by appellee it cannot be used for that purpose.

Paragraph 2, art. 7, of the act entitled “Cities, Villages and Towns,” provides that the city council in cities shall within the first quarter of each fiscal year pass an annual appropriation ordinance in which may be appropriated such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of the city, and in such ordinance shall be specified.the objects and purposes for which the appropriation is so made, and the amount appropriated for each object or purpose. Paragraph 3 provides that no expenditure shall be made beyond the amount provided for in the appropriation for that year, saving certain exceptions not material to state. Paragraph 4 provides that no contract shall be made by the council or any committee or member thereof and no expense incurred, whether the object of the expenditure shall have been ordered by the city council or not, unless an appropriation shall have been previously made concerning such expenses.

In the case of People v. Cairo, V. & C. Ry. Co., 247 Ill. 363, it was said: “A contingent fund is necessary for all municipal corporations. The reason for making such a levy is to provide a fund, usually a small one, out of which items of expenses which will necessarily arise during the year, and which cannot appropriately be classified under any of the specific purposes for which other taxes are levied, may be paid. If all of ‘the purposes for which a contingent fund could be used could be foreseen, so as to enable the municipality to specify each particular purpose, then no contingent fund would be necessary. Every detailed item of expense would be classified under its appropriate name. It is because it is impracticable to always provide in advance for incidental expenses that will arise during the year that a contingent fund is usually provided by the various municipalities of the state.” See also People v. Chicago & E. I. R. Co., 249 Ill. 551.

It is immaterial whether the purposes of such appropriation is designated as “contingent,” “incidental’ ’ or “miscellaneous.” It is clear that the appropriation is made to meet unforeseen expenses that may arise and cannot then be appropriately classified. The words are used interchangeably and mean the same thing. The “miscellaneous” appropriation here was small, compared with the entire sum appropriated, and it was within the power of the council to make it. After a consideration of all questions raised by appellee’s brief, we conclude the employment of The Mar-wick-Mitchell Company was within the. power of the council, and that the miscellaneous fund could lawfully be devoted to its payment.

The decree of the Circuit Court is reversed and the cause remanded with directions to dissolve the injunction and dismiss appellee’s bill.

Reversed'and remanded with directions.


text:
    Patrick Donovan, Appellant, v. Lily Donovan et al., Appellees.
    1. Trusts—resulting. Where a person furnishes the consideration for the purchase of property, the title to which is "taken in the name of another person, the beneficial estate attaches to the party furnishing the consideration.
    2. Trusts—lender of purchase price. Where a person lends money to another to be used in the purchase of property, the title to which is taken in the name of the borrower, no resulting trust arises in favor of the lender.
    3. Trusts—resulting. Where a person requests another to furnish a certain sum of money to enable him to purchase certain property, promising to repay the same within a reasonable time, no resulting trust arises in favor of the latter on furnishing such sum of money.
    Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    S. F. Gilmore, for appellant; R. C. Harran, of counsel.
    Wright Bros. & Denton, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant filed his bill in equity against appellee, charging that one Michael Donovan, his brother, being about to purchase a certain lot in the city of Effing-ham (describing it) at the price of $1,750, represented to appellant that he had of his own means to put into the purchase price of the property the sum of $1,110, and requested appellant to furnish him $640, the balance of the amount necessary to enable him to purchase the property, promising to repay the same within a reasonable time thereafter; that appellant, at the request of Michael, deposited said sum of $640 with the latter’s wife, Lily Donovan, for the express purpose and with the direction of putting said sum with the amount Michael had to raise, being the sum of $1,750, to pay for said property and enable Michael to acquire the title to said premises; that in pursuance of said request of Michael and in compliance therewith and his promise to appellant to so apply the $640 to the purchase price of the premises, the said Lily paid said sum.together with said sum of $1,110 for said premises to which Michael received a deed of conveyance; that Michael, with his family, moved into the premises and with his family occupied them as a residence until his death, and that his wife and children surviving him continue to so occupy them; that said premises have greatly increased in value; that Michael repaid to appellant $30 leaving $610 with the accrued interest still due; that Michael died intestate and left his estate insolvent.

The prayer of the bill is that appellant have a lien declared against the premises for said sum of $610 and interest, and that in default of payment, the premises be sold to satisfy the lien.

A demurrer was interposed to the bill and sustained. Appellant elected to stand by the bill, whereupon it was dismissed and a judgment for costs rendered against appellant.

The position of appellant is that under the facts alleged in the bill he is entitled to have a lien declared against the premises for the money furnished by him, on the ground that it was part of the money paid as the purchase price of the premises.

The law which exempts a homestead of the value of $1,000 to every householder having a family, and continues it for the benefit of the husband or wife surviving, and to the children until the youngest attains the age of. twenty-one years, except for taxes and assessments, and for a debt or liability incurred for the purchase or improvement thereof, is not material here, for the reason that it appears from the averments in the bill that the porperty is of sufficient value to satisfy the exemption and also to pay appellant’s claim. The only question therefore is whether the hill avers a state of facts which gives appellant the right to a lien upon the premises to satisfy his claim.

It is an equitable principle that the beneficial estate follows the consideration, and attaches to the party from whom the consideration comes; that where the conveyance of the legal title is taken in the name of one and the purchase price is paid by another, a trust at once results in favor of the party who pays the price, and the holder of the legal title becomes a trustee for him. In order that this effect, may be produced, however, it is absolutely indispensable that the payment should be actually made by the beneficiary.

Austin v. Underwood, 37 Ill. 438, cited by appellant, was a case where the party claiming an equity had paid the entire consideration for the land direct to the grantor who executed a deed to the grantee, the latter executing a mortgage to the party who paid the money pursuant to an understanding when the money was paid; subsequently the mortgage was released and a trust deed executed in its place. It was held by the court that the consideration of the mortgage Was purchase money as against the homestead and that it so continued under the trust deed. Magee v. Magee, 51 Ill. 500, also cited, was a case where the party claiming the equity paid the notes which the purchaser had given in payment for the land for which he had received a bond for deed at the purchaser’s request. The purchaser at no time had the money in his possession or control but it was paid directly to the grantor who then executed a deed to the purchaser. It was held there in favor of the party paying the money direct to the owner to procure a conveyance of the land, that the payment was purchase money against which the homestead was not exempt.

In commenting on these cases in Steger v. Travelingmen’s Bldg. Assn., 208 Ill. 246, it is said they were cases where the money was paid as purchase money directly to the vendor for the purpose of having land conveyed and was not borrowed to pay for the land.

The facts in the cases cited by counsel for appellant show no loan of money, and are wholly dissimilar to the facts presented in the bill before us.

The bill avers that Michael Donovan, to whom the conveyance was made, requested appellant to furnish him $640, the amount necessary to enable him to purchase the property, promising to repay the same within a reasonable time thereafter and that Michael repaid thirty dollars of it. There is not only no averment that it was the intention of the parties that appellant was to have a lien for the money advanced by him to Michael but the averments of the bill expressly negative such intention and show there was a promise to repay the money and a portion of it repaid. The averments that appellant at the request of Michael deposited the money with the latter’s wife does not change the character of the transaction which appears from the bill to have been a loan of money, and from which no lien arose in equity in appellant’s favor.

‘ ‘ The rule is well settled that where one person lends money to another to be used by the borrower in the purchase of land no resulting trust arises in favor of the lender in the land purchased by the borrower, title to which is taken in the latter’s name.” (15 Am. & Eng. Ency., Ed., p. 1149 and cases cited.)

The allegations in appellant’s bill did not in our opinion entitle him to a lien and the demurrer was properly sustained. The decree dismissing the bill is affirmed.

Affirmed.