author: Moran, J.

text:
    Samuel Frazer et al. v. The Frazer Lubricator Co.
    1. Sale of kame—Trade mark.—A person who has carried on a business under a trade name or manufactured and sold a particular article in such manner as by the use of his name as a trade name or trade mark to cause the business or article to become known and established in favor under such name or trade mark, can sell or assign such trade name or trade mark when he sells the business or manufacture, and by such sale or assignment conclude himself from the further use thereof.
    2. Name as trade mark—Sale.—A party who had been in the business of malting axle grease and had used his own name as a trade name— “ Frazer’s Axle Grease,’’ sold Ms business and the patent for distilling the oil, etc., which had two years yet to run, and covenanted never to engage in the same business and not to use or permit others to use his name as a trade mark" or otherwise in the manufacture of such product. After the patent had run out Frazer engaged in the same business and used his own name as a trade name in connection with the business. Held that the stipulation never to engage in the same business was in general restraint of trade being without limit as to time or territory: that the sale of his name as a trade name forever concluded Frazer from using his name in the manufacture of such article.
    3. Infringement of trade mark.—It is not necessary to infringe a trade mark that it should be counterfeited or exactly simulated. It is enough that such a resemblance is produced as is calculated to mislead purchasers who use such ordinary care and observation as are commonly used by the public.
    4. Damages.—In this class of cases where the main relief sought is to restrain defendants and protect complainants in the rights granted by the contract, the ascertaining of the profits m.ide by the wrong-doer, or the dam. age done to the complainants, is treated as incidental, and it is the practice to decree the profits or damages to the complainants.
    Appeal from the Superior Court of Cook county; the Hon. He key M. Shepard, Judge, presiding.
    Opinion filed March 31, 1886.
    In 1856 Samuel Frazer, one of the appellants, commenced at Galena, Illinois, the manufacture of an axle grease, in accordance with a method discovered by him for combining rosin oil, salsoda, palm oil and water. The rosin oils were distilled from rosin at some five different degrees of temperature, the variation in temperature producing a difference in the quality of the oil.
    The process of distillation to produce from the rosin the different oils used in making the axle grease, was claimed by Frazer as an invention or discovery, and he obtained a patent in the year 1860, covering his process for distillatioh of the rosin oils. Frazer continued the manufacture of the axle grease at Galena until 1868, then entered into partnership with Swift, Hunter and Favor, and under the firm name of Frazer, Swift & Co., the manufacture was commenced in Chicago. In 1869, the partners remaining the same, the firm name was changed to “ The Frazer Lubricator Company,” and Frazer remained connected with the firm and the manufacture and sale of the axle grease by the firm until February, 1870. On or about February 7, 1870, John A. Packard and Edward Hunter, Otis Favor and George 33. Swift, made an arrangement to purchase from Frazer all his interest in the business and plant of the firm, The Frazer Lubricator Company, then engaged in the manufacture of axle grease, and also his patent for making rosin oil. Frazer was paid for his interest in said business and patent about §17,500., and to consummate the transactions the following agreement was executed between the ¡3arries:
    “ This agreement made and entered into this seventh day of February, A. D. 1870, by and between Samuel Frazer, of Galena, Illinois, (now temporarily residing in Chicago in said State) party of the first part, and Edward Hunter, John A. Packard, Otis S. Favor and George B. Swift, of said Chicago, parties of the second part,
    “Witnesseth: That for a valuable consideration and the further consideration of ten dollars to the party of the first part paid by the party of the second part, the receipt whereof is hereby confessed and acknowledged, the party of the first part hereby sells, assigns, transfers and conveys unto the said parties of the second part, all his right, title and inlejest in and unto certain letters patent, (and the invention thereby secured) which were issued to the party of the first part by the Hnited States of America, on the 12th day of June, in the year of our Lord one thousand eight hundred and sixty, bearing thereon the number of said patent, to wit, Ho. 28,663, said letters patent embracing and covering in general terms a new and useful improvement in distillation of oils from rosin; said invention being particularly described in the schedule and diagram attached to said letters patent and of trecord in the patent office in the city of Washington, in the District of Columbia. The party of the first part, for the consideration aforesaid, hereby authorizes the parties of the second part, their assigns, successors, heirs, administrators, executors or legal representatives, to use his name so far as it may be necessary to use it as a trade mark, or as indicating the material or product which has heretofore been manufactured under said letters patent and generally known and called Frazer’s Axle Grease, Frazer’s Lubricator, or Frazer’s Grease, and confers the authority to use his name as aforesaid upon the parties of the second part, their assigns, successors, etc., exclusively, and binds himself to confer that authority upon no other person or persons, corporation or association whatsoever, and he hereby sells, assigns and transfers for the same aforesaid consideration, unto the said parties of the second part, their assigns, successors and legal representatives, all interest, right and title which he may have in any renewals or extensions of said letters after the expiration thereof, and hereby expressly agrees and binds himself unto the said parties of the second part, their assigns, successors or legal representatives, to make in his own name but for the benefit of said parties of the second part, all or any applications, petitions or requests in writing, or otherwise, which may be required by said parties of the second part, for the purpose of obtaining any renewals, extension or re-issuance of said letters patent, and without charge therefor, provided said parties of the second part assume and pay all costs and expenses attendant thereupon; and said party of the first part agrees and binds himself not to engage hereafter in the manufacture, directly or indirectly, of the product or material secured by said letters patent and known as aforesaid, and not to use or authorize the use of his name as a trade mark or otherwise for the manufactuie of said lubricator, axle grease or grease, or any other product made under said letters patent. The parties of the second part hereby agree to hold said party of the first part harmless against, all or any costs or liabilities arising from the use of his name as aforesaid.
    “In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.” (Signature of the parties under seal.)
    April, 1870, the appellee corporation, The Frazer Lubricator Company, was organized, the then owners of the property and business of the firm known by that name being the promoters of the corporation; and by proper instruments of conveyance and assignment, the corporation became vested with all the property of the firm, and all the rights, privileges and duties of the parties of the second part under the agreement above set forth, and became successors in the business of manufacturing “ Frazer’s Axle Grease,” “ Frazer’s Lubricator” and “ Frazer’s Grease ” to Frazer and the different firms with which he had theretofore been associated in conducting said business.
    Frazer was the first person who undertook, in this country, the mannhicture of an artificial axle grease, upon a commercial scale, or as an article of merchandise, to supply the public demand, and he and his associates succeeded in establishing a large and profitable trade in^their product, and for a number of years, and while Frazer and his different firms were engaged in the business, they introduced their manufacture to the public under the names “Frazer Axle Grease,” “ Frazer’s Lubricator” and “Frazer’s Grease,” and these names and words indicating that the article was manufactured by Frazer and his associates, under the process discovered by him, were either stamped upon each package of axle grease made by them, or were printed upon labels posted upon each package sold, and the lubricant so designated was by such names widely known and extensively used.
    Since the purchase of Frazer’s interest in the business, and the making of the agreement set forth, the appellee company, have continued the manufacture of the axle grease, compounding it of the same ingredients and in substantially the same proportions that were used by Frazer, and the axle grease has been put up in similar packages, and appellee has continued the sale of the axle grease under the name of “Frazeris Axle Grease,’/ manufactured by the Frazer Lubricator Company; and during the fourteen years since the making of the agreement with Frazer set out, has expended large sums in advertising the product under the name of “ Frazer's Axle Grease,” and has invested a large amount in factories for the manufacture of said article, and greatly increased the trade therein in this and foreign countries, and kept the same before the public and in favor with the trade and known to the consumers as “ Frazer’s Axle Grease.”
    About the time it commenced business, appellee adopted a label which it has continued to use, placing the same on each package of the lubricant mmufactared and sold. The label is of yellow paper four inches wide and five inches long and lias printed on it “Frazer’s Axle Grease, manufactured by the Frazer Lubricator Company, principal office, 31 Superior street, Chicago, Ill.” The words,“Frazer’s Axle Grease” are printed in large capitals, and the word “Frazer’s” is printed across the top of said label, and the words “axle grease” a little below the middle of said label, and in the intervening space is a picture of two wagons each drawn.by two horses, a driver for each team. The left forward wheel of one of the wagons has fallen off, and the driver of the other in passing by is represented as saying: “My friend you should use Frazer’s Ax’e Grease.” The other replies: “ That is what I shall do after this.” In the lower edge of the picture are the words “trade mark” in small capitals. On the left of the picture is printed, “ The best axle grease in the world,” and on the right, “Factories: Mew York, Chicago and St. Louis.”
    In 1880, Frazer obtained a patent for a process of distillation of rosin oils, the oils being drawn off at different temperatures and treated somewhat differently from the process described by the patent of 1860. In February, 1881, Frazer, in partnership with others, and under the firm name' of “S. Frazer & Co.,” commenced the manufacture and sale at Galena, Ill., of axle grease, which is, in appearance, like the axle grease manufactured by the complainants, and is put up in packages similar in size and shape and color, to those used by complainants. The grease made by appellant is made in nearly the same manner as that manufactured by the complainants, and is compounded of substantially the same ingredients and in very much the same proportions as used by complainants, and a chemical analysis shows the two products to be substantially the same material. The Galena firm attached to the packages of their product a label about six inches long and four' and a half inches wide. On it is printed, “ Superior Axle Grease, manufactured by S. Frazer & Co., Galena, Illinois, under letters patent, dated October 19,1889. Every can warranted.” The words “ Superior Axle Grease ” are in moderate sized capitals at the top of the label. Underneath those words and near to them, are the words, “ S. Frazer & Co.,” in large capitals. “ Galena, Illinois,” is at the bottom of the labels, and between those words and the words, “ S. Frazer &
      Co.,” at the top, is a picture of two threshing powers in operation. one with six horses and one with ten horses. The driver of the six horses is represented as saying: “We use Superior Axle Grease;” the driver of the ten horses, as saying: “ We don’t,” and the various features of the picture are intended to represent the contrast in operation of the machines that have (Superior Axle Grease for a lubricant and those that do not.
    This label was not always printed on paper of uniform col- or, blue, brown and yellow having been used ; but before the commencement of this suit other colors were a bandoned and the label was printed on yellow paper of a little darker shade than the paper used by the complainants for their label, appellant finding that the yellow paper retained a better impression of the cut. Appellants also attached to the packages of their grease the following, printed on paper- similar to their label:
    “ FTotice.
    “ This grease is a new and superior axle grease, invented by Samuel Frazer; the original inventor of the old ‘Frazer’s Grease,’ but the public are informed, and hereby notified, that the grease is positively a different grease from ‘ Frazer’s Grease,’ ‘Frazer’s Axle Grease,’ or ‘Frazer’s Lubricator,’ and has been recognized as such in the patent office in Washington, by the grant of a patent therefor. And all persons desiring to purchase axle grease are hereby expressly cautioned not to mistake this grease for either the said ‘ Frazer’s Grease,’ ‘ Frazer’s Axle Grease,’ or ‘ Frazer’s Lubricator.’
    “ Every can of this grease will be labeled Superior Axle Grease, manufactured by S. Frazer & Co., Galena, Illinois, and will bear our trade mark as given on the opposite side of this can.
    “ This grease is a free lubricant and will not gum in cold weather or when the wagon is not in use. It will be found to be the very best grease in use for machinery of all kinds.
    “ Every can warranted.
    “ S. Fbazeb & Co.”
    A bill was filed in August, 1884, by-appellee, to restrain Frazer and his partners from using the name “Frazer” or “S. Frazer & Co.” upon any label in connection with the words “ axle grease,” as indicating that the same was manufactured by Frazer, or in connection with any form of words or pictures as a trade mark or name for axle grease, and to restrain Frazer and his associates from manufacturing axle grease after the process and with ingredients used by complainants in compounding “'Frazer’s Axle Grease,” and from making any axle grease in which rosin oil, made by the same or a similar process of distillation to that described in the I860 patent, formed an essential ingredient, and praying for damages for injury done. A decree was entered by the court below restraining Frazer and the other defendants from using said name in connection with the words “ axle grease,” or upon any label, placard, advertisement or package intended to promote the sale of any axle grease manufactured by S. Frazer & Co., or any other axle grease except axle grease of complainant’s manufacture, and generally, from doing anything that would tend to conflict with the benefit complainants might derive from the use of the name “Frazer” as their trade mark. The court refused to enjoin Frazer from manufacturing axle grease from the same ingredients as those used by complainants.
    By stipulation $4,500 was agreed upon as the damage which, should be allowed to complainants by reason of the sale of axle grease made by S. Frazer & Co., put up and labeled as des ribed, and thus diminishing the sales of complainants and depriving them of profits, but objection is saved in the stipulation to the power or jurisdiction of the court to enter a decree for damages. The court decreed the damages to complainants, and the case is brought here by appeal. Appellees assign cross-errors for the refusal "of the court to enjoin Frazer from engaging in making axle grease similar to theirs and composed of the same ingredients.
    Messrs. Cobueu & Thacher, for appellants;
    as to trade mark, cited Candee v. Deere, 54 Ill. 456; Newman v. Alvord, 49 Barb. 588 ; Blackwell v. Dibrell, 14 O. G. 633.

      The name of a person, firm or corporation can not constitute a trade mark : Browne on the Law of Trade Marks, 134 ; Ainsworth v. Walmesley, 44 L. J. R. 252 ; Comstock v. White, 18 How. Pr. 421; Clark v. Clark, 25 Barb. 76.
    Messrs. McClellan & Cummins, Mr. M. W. Fuller and Mr. L. L. Bond, for appellee;
    as to the sale of a name as a trade mark, cited Burdsall v. Curran, 27 Off. Gaz. 1320 ; Oldham v. Longmead, 3 T. R. 437; 1 Webster P. C. 291; Walton v. Laveter, 8 C. B. 162, 187; Chambers v. Chrichley, 23 Beavan, 374; Thomas v. Quintard, 5 Duer (N. Y.), 80 ; Kinsman v. Parkhurst, 18 How. 289; Thorly’s Cattle Food Co. v. Massom, Cox’s Manual of Trade Mark Cases, 395 ; Dixon Crucible Co. v. Guggenheim, Am. Trade Mark Cases, M. C. 395-42; Rep. N. S. 851; Howe v. Howe, do. 421 N. Y. Supreme ; Rogers v. Rogers Co., 11 F. R. 495 ; Crofts v. Day, No. 76 Cox’s Manual.
   Moran, J.

The main points of dispute between the parties to this suit arise on the construction to be given to the agreement of February 7, 1870, set out in full in the statement of facts. Consideration of the circumstances under which the agreement was made and an analysis of it in the light of these circumstances will aid in arriving at its true construction.

Frazer, at the time of making the agreement, was disposing of his entire interest in the business of manufacturing axle grease, a business in which he and his partners had been engaged for many years under different firm names. The axle-grease had been compounded according to a formula discovered by Frazer, and had been made known to the public under the name of “ Frazer’s Axle Grease,” “ Frazer’s Lubricator ” and “Frazer’s Grease.” Under such designations the product became favorably known, and the business which Frazer sold out was a growing and profitable one. Frazer’s patent did not cover the process of compounding the axle grease but did cover an improvement in the distillation of rosin oils, which oils formed an essential ingredient in the axle grease as manufactured.

The parties of the second part to the agreement were purchasing Frazer’s interest therein with the intention of continuing the manufacture of the grease in the same manner that it had theretofore been made, and selling their product under the name by which it had become known and under which it had gained a reputation for excellence.

Frazer’s patent had, at the time of the sale, four years to run, and if not renewed or extended all persons would have the right to distill rosin oils as therein described at the end of that time.

Looking now at the agreement we find that the parties contract with reference to different subjects, to wit, the letters patent, the use of Frazer’s name by the parties, of the second part, the extension or renewal of the patent, and the engagement of Frazer in the manufacture thereafter of the material secured by said letters patent. Bringing the portions of the agreement having reference to the patent together we find that Frazer sells and assigns his patent to the parties of the second part, and his right and title to any extensions or renewals thereof, and agrees to sign all writings that may be required by said second parties for obtaining renewals or extensions of said patents.

As to the use of Frazer’s name we find Frazer authorizes its use by the second parties and their assigns and successors exclusively so far as may be necessary, either as a trade mark or as indicating the material which had been manufactured under the letters patent and known as Frazer’s Axle Grease,” “ Frazer’s Lubricator ” or “ Frazer’s Grease”’ and agrees to confer that authority on no other person or corporation or association, and not to use or authorize the use of his name as a trademark or otherwise for the manufacture of said lubricator, axle grease or grease or any other product made under said letters patent. If it was in the power of Frazer to invest Packard and his associates by contract with the right to use his name in the manufacture and sale of the product or material mentioned and to exclude himself and, his associates from the use of his name in the manufacture or sale of such product or material, it. must be admitted that he has done so by the terms of the agreement. That it is legally competent for a person who lias carried, on a business under a trade name or manufactured and sold a particular article in. such manner as by the use of his name as a trade name or trade mark to cause the business or article to become known and established in favor under such name or trade mark, to sell or assign such trade name or trade mark when he sells the business or manufacture, and by such sale or assignment to conclude himself from the further use thereof, seems to be well established on authority. Kidd v. Johnson, 100 U. S. 617; Grow v. Seligman, 47 Mich. 607; Dixon Crucible Co. v. Guggenheim, 3 Am. L. T. 288.

It is contended by appellants’ counsel, however, that whatever right was given by the contract to Packard and his associates to use the name of Frazer, terminated at the expiration of the patent, which was by the same contract assigned to him. We do not so construe the contract. The right to distill rosin oils by the process covered by the patent would be free to all persons on the expiration of the patent, but the business of compounding axle grease, according to Frazer’s formula, and selling it in the market under the name of “ Frazer’s Axle Grease,” might continue as long as the parties engaged in it saw fit, and the longer it continued, if honestly conducted, the greater would be the reputation of the article and the more valuable the use of the trade name or trade mark'under which it was sold. The phrases “ manufactured under said letters patent,” and “ made under said letters patent,” are not to be read as fixing a time limit to the contract, but rather as identifying the material or particular kind of axle grease which was to be sold under the names “Frazer’s Axle Grease,” “ Frazer’s Lubricator,” and “ Frazer’s Grease.” Nor is there, as appellants contend, any element of concealment or imposition upon or lack of good faith with the public in appellees’ continuing to sell their product under the name of “Frazer’s Axle Grease.” It is shown by the record that the grease is compounded of the same ingredients and in the same manner and in all respects after the same formulas as used by Frazer and his different firms to which appellee is successor. Mo suggestion is made that appellee has attempted to palm off a cheaper or an inferior article, or an article that is any other than the same that was sold by Frazer and his associates under the name of “ Frazer’s Axle Grease.” The name indicates the origin of the article, and identifies it to the public. A name, though originally the name of the first maker, may in time become a mere trade mark or sign of quality and cease to denote or be current as indicating that any particular person is the maker. * * * * * In such cases the name is accepted in the market either as a brand of quality or it becomes the denomination of the commodity itself, and is no longer a representation that the article is the manufacture of any particular person. Hall v. Barrows, 4 De G., J. & S., 150. There is no representation that Frazer’s Axle Grease is now manufactured by Frazer. On the contrary it is truthfully stated on the label used, that it is manufactured by the Frazer Lubricator Company. The doctrine invoked by counsel and applied in Manhattan Med. Co. v. Wood, 108 U. S. 218, has no pertinency to the facts of this case.

The contract giving to appellee the use of Frazer’s name as a trade'mark in the sale of the axle grease, and agreeing not to use or permit others to use said name as a trade mark or otherwise in the manufacture of the article, is in no sense against public policy as being in restraint of trade. The portion of the contract now under consideration, in no way prevents him from engaging in the manufacture of axle grease, or in the manufacture even of the particular kind of axle grease made by appellee. He is at liberty to use his skill and experience in the compounding of a better grease from the same ingredients, but his contract restrains him from availing himself, in putting his grease before the public, of the reputation gained by the use of his name as a trade mark on the axle grease made in accordance with his formulas, and known to the public as “ Frazer’s Axle Grease.” The public are not deprived by those stipulations of the contract of Frazer’s skill, nor of the benefits of his competition in business as a rival of appellee. There is no restraint of trade but a restraint of the use, in the particular trade, of a name which he treated as having a property value, and sold to appellee and agreed not to use in connection with the sale and manufacture of the particular product.

This brings us to the question, were the acts done by Frazer and his co-defendants a violation of appellees’ rights. Whether we regard the complainants as having in the words and picture printed upon their labels and attached to packages of their product a trade mark, entitled to protection from infringement, or we place the obligations of defendants toward complainants on the stipulations of Frazer contained in the contract, we are of opinion that the conduct of defendants was wrongful. To infringe a trade mark it is not necessary that it should he counterfeited or exactly simulated. It is enough that such a resemblance is produced as is calculated to mislead purchasers who use such ordinary care and observation as are commonly used by the public. McLean v. Fleming, 96 U. S. 245.

The label used by defendants on their packages is printed on yellow paper differing slightly in shade from that used by complainants. The pictures on the two labels are different but express to the beholder the same idea. The name Frazer is made prominent and so printed as to direct attention to the point that the axle grease is a Frazer product. When the labels are examined together there are many differences but the general appearance of the label, the color of the paper, the resemlffance of the prominent features which go to make up the whole, taken in connection with the fact that the label is placed on packages in size, shape and appearance like those of appellee, are well suited to divert the attention of the purchaser from a critical examination that might correct the impression gained by casual inspection. The fact that careful buyers who scrutinize closely are not deceived only shows that the injury is less in degree, not that there is no injury. 39 Conn. 450.

The use of the name “ Frazer” and the words “ axle grease ” are the misleading elements in the combination of words on the label, and prefixing the adjective “ superior ” to the words “ axle grease ” has no corrective effect. The conspicuous reiteration of the name on the labels and printed notice attached to the packages of defendants and in the circular sent out by them indicates a conviction on the part of appellants that in making sales in the market and to consumers of an article of axle grease, “ Frazer’s ” was a good name to conjure with. Tet the entire potency of the name was acquired in manufacturing and selling Frazer’s Axle Grease,” and all the advantages of its use in the sale of such a product was contracted by Frazer to Packard and his associates, and belongs to appellee. Extended fame and notoriety have been given to the name by the expenditure of large sums in advertising, and the enlarged business done in the manufacture and sale of the artide by appellee, and equity will not permit Frazer nor those who associate with him in business to use the name which has thus become a distinguishing feature of appellee’s trade mark in the sale of an article similar to appellee’s in such manner as to derive a benefit from the trade established by appellee, or deprive ajapellee of the full benefit of the use of such name, particularly in the face of his agreement “ not to use or authorize the use of his name as a trade mark or otherwise for the manufacture of said lubricator, axle grease or grease, or any other product made under said letters patent.”

A case in some of its features very like the one at bar is Probasco v. Bonyon, 1 Mo. App. 241. Oakes and Probasco were in partnership in the manufacture and sale of candies, which became known under the name of “ Oakes’ candies.” Oakes sold his interest in the business to Probasco, and gave him by a bill of sale the “ exclusive right to make and sell Oakes’ candy and the use of the name thereof.” Afterward Oakes formed another partnership and began the sale of candies under that name. The court in deciding the ease say: “ Whatever rights other men may have to the name of Oakes, this particular Oakes, the defendant in the case, will not be permitted to use the name of Oakes in the manufacture and sale of candies, at least in the locality where the name has a peculiar signification and a business value, and where he is bound by valid agreement to abstain from the use of his name. If it is claimed that Oakes has a right to use his own name, the answer is that he has no right to use it in this way, if he has sold that right, and if, as we hold, it was a right which he could sell and which plaintiff could acquire. A court of equity will restrain a breach of contract or of covenant, and to do so in this case will not be against public policy or in restraint of trade. Oakes may still make and sell candy, but not under the name the use of which he has for this purpose sold.” See also Oakes v. Tonsmierre, 4 Woods, 555, and as illustrating the application of this doctrine by courts of equity Homes, Booth & Co. v. Holmes, Booth & Co., 37 Conn. 278 ; Shaver v. Shaver, 54 Iowa, 208; Thorly Food Co. v. Massom, 42 L. T. Rep. N. S., 1851; Stonebraker v. Stonebraker, 33 Md; 252; Gillis v. Hall, 2 Brewster, 342; 45 N. Y. 291.

The court below was correct in refusing to enforce against Frazer the stipulation of the agreement which prevented him from engaging in the manufacture, directly or indirectly, of the product or material of the axle grease. Such stipulation is without limit as to time or territory within which it is to bind, and therefore is in general restraint of trade. The court below had jurisdiction to enter a decree for the damages. In this class of cases where the main relief sought is to restrain defendants, and protect complainants in the rights granted by the contract, the ascertaining of the profits made by the wrongdoer or the damage done to the complainants, is treated as incidental, and it is the practice to decree the profits or damages to the complainants. Hostetter v. Vowinkle, 1 Dillon, 329; Atlantic Milling Co. v. Robinson et al., 20 Fed. Rep., 217. Here the damages were ascertained by agreement, and it would have been idle to send them to the law side to enter the judgment. Equity having jurisdiction for one purpose will administer complete relief. Savage et al. v. Berry, 2 Scam. 545; Wade v. Bunn, 84 Ill. 120.

- FTo error appearing in the decree appealed from, it must be affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Adelbert W. Olds v. The Chicago Open Board of Trade et al.
    Pleading.—Common law rights and duties are known to the courts, but the duties of a private corporation toward its members and the rights of members thereof as against fellow members and as against the corporation can only he known by an inspection of the charter and by-laws of such corporations. As the declaration in this action against the Open Board of Trade, and certain members of such hoard, for conspiracy in causing plaintiff to be suspended in violation of the board’s rules, etc., does not set forth the rules or regulations of such hoard nor what acts the plaintiffs did in violation thereof, it is subject to demurrer.
    Ebbob to the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    Opinion filed March 31, 1886.
    Mr. Consideb H. Willett, for plaintiff in error.
    Messrs. Bisbee, Ahrens & Decker, for defendants in error.
   Moran, J.

Plaintiff in error brought his action in the court below to recover against the defendants, the Open Board of Trade and Saekett and Marks, who are alleged to he members of said Open Board, for conspiring to unlawfully deprive plaintiff of his ticket of membership in said Open Board of Trade, and for causing him to be suspended from said Open Board unlawfully and without due notice and in violation of the rules and regulations of said Board of Trade, by reason whereof he sustained damage. In neither count of the declaration are any facts stated from which the court can see what are the duties of the Open Board of Trade toward its members, or what are the duties of members of said Board of Trade toward each other, or what are therights and privileges which a ticket of membership in said Board entitled the holder of such ticket to enjoy.

The rules and regulations of said Open Board are not set out either in haee vería or in their effect. Nor is it alleged what acts the defendants did which were in violation of any rule or regulations, in causing plaintiff to be deprived of his ticket of membership. Common law rights and duties are known to the courts but the duties of a private corporation toward its members and the rights of members thereof, as against fellow members and as against the corporation, can only be known by an inspection of the charter and by-laws of such corporations.

Courts will not take judicial notice of the existence of a private corporation, nor of the method in which'it conducts business, nor of its by-laws, or the rights, duties, or privileges of members arising thereunder or governed thereby.

The declaration must allege all the facts necessary in law to support the action against all the defendants who are joined so that the judgment must follow as a logical conclusion upon the facts. The pleading is to be taken most strongly against the pleader, and no intendments in its favor are to be indulged in. The plaintiff’s right must be clearly set out; that is, facts from which it can be seen that he has a right, and what his right is, must be alleged, the invasion of the right and the injury that flowed from such invasion.

To allege that a private corporation owed to its members this or that duty, or that it had done this or that act against or in violation of its rules or regulations, or that the members thereof owed duties to each other, or that certain persons by combinations caused one to be expielled from the corporation or his ticket to be taken from him without due notice, and in violation of the rules or charter, is but to state a conclusion of law, instead of pleading the facts from which such conclusion is to be the necessary inference. Such mode of pleading is not permissible. The People v. Village of Crotty, 93 Ill. 190; Kilgore v. Ferguson, 77 Ill. 213; 1 Chitty’s Pleadings, 245.

The allegations that defendants combined or conspured will not sustain an action. It must be shown that they did an unlawful act from which plaintiff has suffered damage. That must be done in pursuance of the conspiracy which without the conspiracy would give a right of action.

If plaintiff’s ticket of membership gave him any rights, he should state what those rights are. If those rights have their origin or protection in any by-law, he should set out the bylaw. If a rule has been violated to his injury, he should set out the rule and state what has been done in pursuance of a conspiracy or otherwise that he claims is a violation of it, and by whom done and what damage has accrued to him as the natural or necessary result of the acts that have been done.

Having failed to state facts in the declaration, which show a legal cause of action, the court below properly sustained the demurrer and the judgment must be affirmed.

Judgment affirmed.


author: Bailey, P. J.

text:
    H. C. Klinesmith v. Carter H. Harrison, etc., et al.
    CnArrcEBY—Remedy at law.—A bill in equity to restrain the mayor and public officers of Chicago from attempting to enforce against complainant certain ordinances of the city prohibiting him from carrying on the business of auctioneer without a license, complainant having applied for a license and been refused. Held, that as nothing is alleged in the bill which may not be fully and adequately compensated by damages recoverable in suits at law against the alleged wrong-doers, the bill is without equity.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed March 31, 1886.
    The bill in this case alleges that, for many years past, H. C. Klinesmith, the complainant, has been carrying on the business of an auctioneer in the city of Chicago, and that he is in every respect a fit and proper person to conduct said business; that said city heretofore passed an ordinance in relation to licensing and taxing auctioneers, as follows:
    Sec. 931. “Any person may become'an auctioneer and be licensed to sell real and personal property at auction at a place to be named in said license, upon paying to the city collector the sum of $300 and executing a bond to the city with two sureties, to be approved by the mayor, in the penal sum of $1,000, conditioned for the due observance of the ordinances of the city council.
    Sec. 932. “Every person who may wish to obtain a license as above mentioned, shall apply in writing for the same to the mayor, setting forth therein his proposed place of business, and the names of his sureties, and in no case shall such license be transferable or the place of business changed, without consent in writing of the mayor.”
    That the complainant knows of no other ordinance of said city in relation to licensing auctioneers now in force; that on or about the 15th day of April, 1885, a large number of persons, residents of said city, made application to said mayor for licenses to become auctioneers, to whom such licenses were granted; that on or about that day the complainant wished to obtain a license as auctioneer, and thereupon applied in writing for the same to said mayor, setting forth therein his proposed place of business and the names of his sureties, and also executed a bond to the city in the penal sum of $1,000, with two good and sufficient sureties, conditioned as required by the ordinance, and tendered to the city collector the sum of $300 ks the license fee required by the ordinance; that said mayor received said application, but has not apj>roved said bond or granted said license, but has failed and refused and still refuses so to do; that the city collector has refused to take or receive said sum of $300 tendered to him by the complainant, and still refuses to receive the same; that in making and presenting to the mayor his application for a license and tendering to him said bond, and in tendering to the city collector said sum of $300, the complainant had in all things complied with the ordinances and regulations of the city governing the licensing of auctioneers, and that having done all that was necessary and proper in the premises, he is now entitled to have said license as auctioneer issued to him; that the mayor and city collector have given no reason and have no reason for their action in the premises, but that their action is capricious and arbitrary, the complainant being the only person whose application for a license has been refused by them; that the complainant has instituted proceedings by mandamus in the Circuit Court of Cook county to compel said mayor to issue him said license, but that by reason of the crowded state of the docket of said court, said cause can not be reached for several months; that having complied with the laws of said city in all respects, and being entitled to a license as aforesaid, he is entitled by law to conduct his business without a license until said question is determined and the authorities of the city compelled to do him justice and issue him a license.
    The bill further alleges that, notwithstanding the complainant’s right to conduct his business as aforesaid, the city authorities have heretofore, in violation of law, arrested the complainant several times, and are now threatening to arrest him and prevent him from prosecuting his business by closing his store and other means, and that recently certain police officers have visited his store under directions of the mayor and chief of police of the city, and informed him that if he did not stop his business they would arrest him, whereby the complainant has been compelled to discontinue his business as auctioneer ; that said officers are acting maliciously and without any just cause ; that one Shea, the chief of the detective force of the city, has declared that he would crush the complainant out and compel him to cease doing business and leave the city, and that he would see to it that the complainant should not get a license as auctioneer ; that the granting of licenses to auctioneers is left by the mayor and other city officers to the recommendation of said Shea.
    It is further alleged that if the complainant is compelled to cease doing business now, his said business will be ruined and he will be injured irreparably, and beyond adequate remedy at law ; that his customers will leave him ; that he has been in business thirteen years, and has the sum of $15,000 invested in goods and fixtures which will be a total loss to him if he is not allowed to sell the same at public auction.
    The bill prays for an injunction restraining the mayor, the superintendent of the police, the chief of the detectives and the other officers of the city, from interfering with the complainant in any manner, by arresting or threatening to arrest him or his employes, or from any manner interfering with him as aforesaid in conducting his said business as auctioneer, until the further order of the court.
    The defendants appeared and demurred to the bill for want of equity, which demurrer was sustained and the bill dismissed at the complainant’s costs ; from which decree the complainant has appealed to this court.
    Mr. Gbai-iam H. Habéis and Mr. W. S. Johnson, for appellant.
    Mr. F S. Winston, for appellees.
   Bailey, P. J.

The object of the present bill, if we are to judge from the propositions discussed by counsel in their arguments, is to restrain the mayor and police officers of the city of Chicago from attempting to enforce against the complainant certain ordinances of the city prohibiting him from carrying on the business of an auctioneer without a license. The provisions of the ordinance prescribing the mode in which a license must be applied for, and the conditions upon which it will be granted, are set out in the bill, and it is alleged that the complainant has made his application in strict compliance with the requirements of the ordinance and has performed all the conditions therein prescribed, and has thereby become entitled as of right to a license, but that the city officers to whom the matter of issuing the license has been committed by the ordinance, have wrongfully and unjustly refused to issue it. It is then alleged that the city authorities have already arrested the complainant several times, and are threatening to arrest him and prevent him from prosecuting his business by closing up his store, and are threatening to crush the complainant out and compel him to cease doing business and leave the city, such acts on the part of the city authorities being malicious and without just cause.

Whether a court of equity should interfere to enjoin the enforcement of a penal ordinance or not, it is very clear that the present bill is not so framed as to present that question for our decision. The ordinance, the enforcement of which is the subject-matter of complaint, is not set out, nor is its existence alleged. There is no averment of any ordinance prohibiting the carrying on of the business of an auctioneer without a license, or imposing any penalty for so doing. Nor is there any averment that any prosecution against the complainant for the breach of any ordinance has been instituted or threatened, or that any of the acts on the part of the police officers of the city alleged in the bill were committed under guise of an attempt to enforce a municipal ordinance. Nothing is shown from which it can be seen that the mayor and police officers are vested with any claim or color of legal authority to arrest the complainant or to interfere with him in the least in the prosecution of his business, whether he has a license or not. So far as appears, all the acts complained of and now sought to be restrained, are mere tortious and unlawful acts, and have not even the color of a lawful exercise of the police povrer.

For grievances of this character the remedy at law seems to be clear, adequate and complete. Nothing is alleged, so far as we can see, which may not be fully and adequately compensated by damages recoverable in suits at law against the wrong-doers. Even if the wrongs complained of should result in the destruction of the complainant’s business and the loss of his stock in trade, we see no reason why he may not be fully compensated by damages to be estimated by a jury; and if such wrongs are malicious and committed under circumstances of aggravation, he may be entitled to recover damages even beyond mere compensation as a punishment to the wrong-doers. It should be noticed that the bill contains no allegation that any of the parties charged are insolvent and not able to respond to him in any amount of damages which he may be able to recover at law, nor do the facts alleged raise a reasonable probability that he will be driven to a multiplicity of suits to obtain adequate redress.

But while the bill fails to show the existence of any municipal ordinance justifying his arrest or the interference with his business as charged, it also fails to- show that there is no such ordinance, and we can not say that it may not be within the legal competence of the city, under the power given it by statute to tax, license and regulate auctioneers, to pass ordinances under which the complainant might be arrested and prosecuted, even though it be conceded that he is entitled to a license as alleged in the bill. It was for him to show affirmatively that there was no valid ordinance justifyin y his arrest and prosecution in the manner complained of. In the absence of such showing we are justified in construing his pleading most strongly against him, to assume the existence of such ordinance.

The bill, in any view we are able to take of it, is clearly insufficient, and it follows that the demurrer was properly sustained.

The decree will be affirmed.

Decree affirmed.


author: McAllister, J.

text:
    George Middleton v. Kate Middleton.
    Temporary alimony.—Under the circumstances of this case, in view of the fact that the wife had entered into articles of separation, the court, in awarding temporary alimony, should have made the payment conditioned upon the husband’s failure to pay under the articles of separation, and provided for the application of so much as was paid under the order up'on said articles.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed March 3, 1886.
    June 9, 1885, appellee filed her bill against appellant, as her husband, setting forth his pecuniary ability, and charging him with having wrongfully neglected and refused to maintain lier and her infant child, alleging that she was living separate and apart from him without her fault; also charging him with having committed adultery ; praying that he be enjoined from disposing of his property; that she have the custody of said child and for a decree for separate maintenance, or such further or other relief as should be consistent with equity, etc. Summons was issued returnable to the July term, 1885, and was served July 10, 1885. July 2, 1885, the defendant appeared and filed an answer denying the charges in said bills and on the same day he filed a cross-bill charging complainant with adultery and praying for a divorce; to which cross-bill complainant, July 13, 1885, (having previously filed a replication to defendant’s answer to her bill) filed her answer, denying the several charges therein, and on the same day presented her petition to the court, under oath, asking for suit money, and alimony pending the suit, for herself and child. Upon a full hearing upon affidavits by and on behalf of the respective parties, the court, July 14, 1885, made an order requiring the defendant to pay to complainant the sum of two hundred dollars per month as temporary alimony, the first payment to be made July 20, 1885, and thereafter on the twentieth day of each month until the further order of the court, and that he pay to the solicitors for the complainant, within thirty days from that date, the sum of two hundred dollars as and for a reasonable solicitor’s fee in the case.
    It appeared that March 17, 1885, the parties entered into articles of separation, whereby defendant, amongst other things, covenanted to pay house rent for his wife, not exceeding fifty dollars per month, and to pay her one hundred and fifty dollars on the first Monday of each and every month for her support.
    The defendant appealed from said order to this court.
    Mr. M. S. Bobinson, for appellant.
    Messrs. Thomson & Felsenthal, for appellee.
   McAllister, J.

We are of opinion that the objections to the order appealed from, taken by appellant’s counsel, are none of them sustainable, except the last. The first is that the court erred in assuming jurisdiction over .the person of appellant at the June term, 1885, of the court against his objections.

It is true that the summons was returnable to July term, 1885, which did not begin until the 20th of that month, and the order appealed from was made July 14, 1885. But the defendant had previously come in, filed his answer and also a cross-bill, charging the complainant with adultery and praying for a divorce. Those steps having been taken by him, prior to the return term, conferred upon the court as complete jurisdiction of his person as it could ever obtain. The cause was at issue before the order. The defendant filing a cross-bill for a divorce was as efficient in calling into exercise the powers of the court over the matter of temporary alimony or solicitor’s fees for the wife, as if he had proceeded by original bill for a divorce.

The second and third objections are that, inasmuch as the wife’s bill was for separate maintenance, there was no authority in the court to allow her temporary alimony, and to that extent the order was erroneous ; and, it appearing that the parties had entered into articles of separation whereby, amongst other things, he had covenanted to pay her for house rent not to exceed fifty dollars per month and one hundred and fifty dollars per month for her support and that of their infant child, she had no standing in court upon a bill for separate maintenance.

If the case were, in reality, only a case of a bill by the wife for separate maintenance, and the articles of separation were fairly obtained and fully performed, then there would be a grave question whether the bill for separate maintenance would lie. Ross v. Ross, 69 Ill. 569. But such is not the case. Her bill is so drawn, that if it should be sustained by the evidence at the trial, she could, at her election, take a decree for a divorce. And besides, he, by his cross-bill, has become an assailant charging her with adultery and praying for a divorce from her on that ground, thus presenting an entirely different case from that assumed by counsel. Under the actual case, there can be no doubt of the correctness of the court in holding he had authority to award temporary alimony and solicit- or’s fees.

The last point is, that “ the court erred in the amount of alimony awarded and in allowing solicitor’s fees without any evidence upon which to base the same.” The court did hear evidence on behalf of the respective parties to the fullest extent, as to the wife’s needs and the defendant’s pecuniary ability, as well also that bearing upon the conduct of the parties toward each other. If, however, the meaning of the order is, that the defendant should pay complainant two hundred dollars per month in addition to the sum he bound himself to pay her, by the articles of separation, or irrespective of what he was obligated to, or did pay under the same, it would seem to be unreasonable and unjust. The order to pay temporary alimony is without qualification; so that, if the defendant should comply with it, or it should he enforced against him, the complainant might nevertheless have her action at law upon the articles of separation, and payments in compliance with said order, would constitute no defense. We can conceive of no reason why the defendant should be placed in any such predicament. His wife, so far as appears, voluntarily and freely entered into the articles of separation, and in her bill in no way alludes to them or seeks to challenge their validity. That contract should, therefore, be regarded as valid andbinding upon both of them. We perceive no objection to the allowance of solicitor’s fees; but as respects the temporary alimony, the order should have made the payment conditioned upon defendant’s failure to pay under the articles of separation, and provided for the application of so much as was paid under the order, upon said articles.

The order will be reversed and the case remanded for further proceedings.

Order reversed.


text:
       Elijah C. Sprague v. O. B. Green et al.
    Mechanic’s men—No lien—Personal decree.—A court has no authority to enter a personal decree in a mechanic’s li en proceeding where, for any reason, no lien can be declared upon property, or a fund arising from property. Under the statute the decree in a mechanic’s lien proceeding only operates as a personal decree for any deficiency existing after there has been a sale upon execution of the property subject to the lien.
    Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Opinion filed March 31, 1886.
    Mr. I. K. Boyesen, for plaintiff in error;
    that it is error to order an execution in the first instance in a mechanic’s lien proceeding, cited R. S., Ch. 82, § 25; First Baptist Church v. Andrews, 87 Ill. 172; Race v. Sullivan, 1 Bradwell, 96.
    Messrs. Quick & Miller, for defendants in error.

      The case of Elijah C. Sprague v. William G. Hards is identical with the above and is reversed for same reasons.

   Moran, J.

On October 24, 1873, Sprague, plaintiff in error, entered into a contract with defendant in error, Hards, to do certain work on a building then being erected on certain real estate, in which Sprague had a leasehold interest. Work was done under .the contract; Sprague failed to payt and on December 23, 1873, a petition for mechanic’s lien was filed. O. B. Green filed, January 16,1874, an intervening petition setting out facts entitling him to a lien, for materials furnished to erect the building.

Long prior to the making of the contracts with the mechanics, Sprague had executed to the Connecticut Mutual Life Insurance Company a mortgage of the premises, and on June 28, 1872, a bill to foreclose said mortgage was filed in the United States Court for the Northern District of Illinois, so that the contracts were made with the lien petitioners and the work was done on the building pending the suit to foreclose the mortgage.

The several parties interested in the land were made parties defendant to the petitions, and the insurance company answered setting up its mortgage, the foreclosure proceedings, decree, sale November 16, 1874, and master’s deed dated January 9, 1875, and the purchaser at the sale also answered, setting out the same facts.

By the decree the court below found that Hards and Green were entitled to liens on the interest of Sprague in the land at the time the contracts were made and materials furnished, subject to the rights of the Connecticut Mutual Insurance Company under its foreclosure suit then pending, but found that the said foreclosure suit, the decree therein and deed thereunder, “extinguished and cut off and determined all the said right, title and interest of said Sprague, and of all persons claiming by, through or under him, acquired after the commencement of said foreclosure suit, in and to said premises.”

In thus finding the court below was correct, and the effect of such finding was that there was no interest in Sprague at the time of entering the decree to which a lien could attach. Davis v. Connecticut Mutual Life Insurance Co., 84 Ill. 508.

The contracts with Sprague having been made pending the foreclosure against the property on which the lien was sought to be established, were subject to the contingency of the decree of foreclosure, and all Sprague’s interest being closed out by proper proceedings under such decree, there was nothing for the court below to establish a lien upon.

The court proceeded, however, not to decree a lien on any estate or interest, but to ascertain the amounts due the respective petitioners from Sprague, and entered in favor of Hards and of O. B. Green, and against Sprague, personal decrees for the amounts so found due, and directed that executions issue in favor of each petitioner and against Sprague for such respective amounts.

This was error. “On a petition to enforce the lien, the 25th section of our present revision authorizes an execution to issue for any balance that remains after selling the property on which the lien exists and ordered to be sold; but neither it nor any other provision of the lienv 'aw authorizes a personal execution to issue, in the first instance, on an order or decree under a petition.” Baptist Church v. Andrews, 87 Ill. 172. Nor has the court authority to enter a personal decree in a mechanic’s lien proceeding, where for any reason no lien can be declared upon property or a fund arising from property. The statute does not authorize the entering of a decree for money due as a personal decree, and not ordering, any sale of the property or interest therein. The decree only operates as a personal decree for any deficiency existing after there has been a sale upon executions of the property subject to the lien. Bouton et al. v. McDonough County, 84 Ill. 396.

The decree will therefore be reversed.


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    Anton Junker v. Nicholas Kuhnen.
    Statute of Limitations.—An action of debt to recover against a stockholder of an insurance company upon the liability created by section 16 of the General Insurance Law of 1869. Held, that the liability sought to be enforced is in the way of a penalty, and to the recovery of such penalty the two year Statute of Limitations is a good plea.
    Eeeob to the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed March 31, 1886.
    Mr. Feancis Laokneb and Mr. Sidney C. Eastman, for plaintiff in error;
    cited Diversey v. Smith, 103 Ill. 391; Weid, enger v. Spruance, 101 Ill. 287; Gridley v. Barnes, 103 Ill. 211.
   Moran, J.

This was an action of debt commenced November 22, 1875, to recover against plaintiff in error, as a stockholder of the Germania Insurance Company of Chicago, upon the liability created by section 16 of the General Insurance Law of 1869. The declaration alleges debt against the company; that the company is insolvent; that the whole amount of capital of the corporation never was paid in ; that no certificate of such payment was given, or recorded as required, that in fact no more than half the stock had been paid in; and stating cause of action against defendant, alleges: “That on and after said 27th day of July, A. D. 1871, and at the time of the accruing of plaintiff’s said claim, and at the time of the insolvency of said company, the defendant was a corporator and stockholder in said corporation, and had subscribed for and owned his shares of the capital stock thereof at the price named of one hundred dollars for each share, amounting to the sum of one thousand dollars.”

Plaintiff’s loss occurred October 9, 1871.

Defendant below pleaded the two-year Statute of Limitations by a plea in proper form, and to such plea the court sustained a demurrer, and rendered judgment for amount claimed as damages.

The liability sought to be enforced against plaintiff in error is in the way of a penalty. Weidenger v. Spruance, 101 Ill. 278 ; and to the recovery of such penalty, the Statute of Limitations is a good plea. Gridley v. Barnes, 103 Ill. 211. It was error to sustain the demurrer, and the cause must therefore be reversed and remanded.


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    Van H. Higgins v. Stephen White et al.
    1. Notice—Unrecorded deed—Notorious possession.—Long continued, actual, open and visible possession of land under an unrecorded deed is regarded with like effect as if the deed had been recorded.
    2. Conveyances—Settlement by father upon minor son.-—A settlement of land by good and sufficient deed, though unrecorded, from a father, while solvent, upon his minor son, followed by possession by the latter, is good as against subsequent judgment creditors.
    Error to the Circuit Court of Cook county ; the Hon. Thomas Moran, Judge, presiding.
    Opinion filed April 7, 1886.
    Mr. George Burry, for plaintiff in error;
    that the deed of 1865 to John C. is invalid as against the plaintiff because it has never been recorded and the plaintiff had no notice of it by possession, cited McMechan v. Grilling, 3 Pick. 154; Plumber v. Robertson, 6 S. & R. 184 ; Cook v. Travis, 20 N. Y. 400 ; Staples v. Fenton, 5 Hun, 172; Bell v. Twilight, 18 N. H. 159 ; Billington v. Welsh, 5 Binn. 129; Smith v. Yule, 31 Cal. 180; Clark v. Morris, 22 Ill. 434; Stone v. Cook, 79 Ill. 424.
    Mr. Rueus Ring and Mr. Allan C. Story, for defendants in error
    ; as to possession, cited Woods v. Farmere, 7 Watts, 382 ; Plumber v. Robinson, 15 N. Y. 354; Flagg v. Mann, 2 Sumner, 554; Rogers v. Jones, 8 N. H. 264; Ellis v. Howman, 90 N. Y. 466.
    As to voluntary settlement when grantor is solvent: Sexton v. Wheaton, 8 Wheaton (S. C.), 238; Crawford v. Logan, 97 Ill. 396 ; Moritz v. Hoffman, 35 Ill. 553 ; Matthews v. Jordan, 88 Ill. 602; Tunison v. Chamblin, 88 Ill. 378.
   McAllister, J.

This is error upon a decree of the court below, dismissing on the hearing, for want of equity, the bill of pkintiif in error, Higgins, brought against Stephen White, John C, White and Emma H. White, to set aside a deed dated December 3, 1879, made by said Stephen to said Emma H. White, of certain described real estate situate in this county, comprising about fifty-one acres, and with improvements thereon, it being alleged that said deed was made to hinder^ delay and defraud complainant as a judgment creditor of said Stephen White, and was an obstruction to an execution against the latter, which complainant had caused to be levied upon said real estate as the property of said Stephen White.

It appears from the record that July 10,1877, one Osgood, recovered a judgment in the court below, against the Protection Life Insurance Company, of ten thousand and seventy-five dollars and sixty-seven cents, from which the latter took an appeal to this court, and that said Stephen White and one Simons were induced to sign an appeal bond on behalf of said insurance company as sureties, for the purpose of said appeal, which bond was in the penal sum of eleven thousand and five hundred dollars; that said judgment having been affirmed, and it having been assigned by said Osgood to Higgins, suit was brought on said bond in the name of the former for the u se of the latter, terminating February 18, 1880, in a judgment against said Stephen White, for the amount of said penalty as debt, and for the same amount as damages, on which an execution issued at once, which, April 9, 1880, was levied on the land in question, situate in this county, as the property of said White, which levy remained, no sale being made.

In addition to the foregoing facts, complainant proved that said Emma H. was the wife of said John C. White, and that he was the son of said Stephen; that after said judgment on said bond, and December 3, 1879, said Stephen White executed to said Emma the deed of the land in question, described in the bill, which was recorded the 15th of same month; that the only consideration therefor was a covenant on the part of said Emma, with a surety, to support said Stephen during the remainder of his life, he being an old man at that time; that at the time of said deed said Stephen was insolvent. Many other matters were shown in evidence on the part of complainant, which had no relevancy to the real issues in the cause. This bill was -filed, not as a creditor’s bill, but in aid of said execution levied upon the land in question as the property of Stephen White, by setting aside said deed and removing an obstruction to such execution. And if the foregoing were all of the case, the complainant would have been entitled to the relief. But it was set up by the defendants in their answers, and shown by the evidence, that said John C. White being the only child of said Stephen White, the latter, July 29, 1865, some twelve years before he signed said appeal bond, as a settlement upon said John C., who was "then about sixteen years of age, conveyed by a good and sufficient deed, the land in question to said'John C. White, the consideration expressed in the deed being one dollar, and natural love and affection. It was shown by uncontradieted testimony, that at that time the said Stephen White was free frdin all debts and liabilities, and so continued for eight or ten years thereafter; that the premises in question were then worth not to exceed seventy-five dollars per acre, and comprised not to exceed fifty-one acres, on which was a house that cost from three to four thousand dollars, and that said Stephen White was carrying on the business of making lime, which yielded an income sufficient for his support, and that he was the owner of property other than said land, to the amount of ten or twelve thousand dollars. There was no allegation in complainant’s bill respecting this last mentioned conveyance to said John C. White, and there was no evidence whatever, tending to show that it was made with the intention to defraud future creditors. In short, there was neither an issue nor any evidence involving the honaftdes or otherwise, of the making of that conveyance. The parties did not, for the first few years after the making it, deem it important to have the deed recorded, and when, after the great fire in Chicago, said John C. White wanted to leave it for record, he found that he had, after using it in evidence in certain ejectment and trespass suits respecting the land or some portion of it, left it before said fire with his attorney in Chicago, and it could not be found. It was found pending this case, and clearly established. Indeed, there was no controversy as to its genuineness or validity ; blit the contention was that, not having been recorded, it was inoperative. But it appears, by what seems to us to be the clear weight and preponderance of the evidence, that for several years prior to, at the time said Stephen White became surety upon said bond, and continuously, down to the time of judgment thereon and the levy of said execution, the said John C. White was in the actual, open and visible possession of said land, performing, from time to time, as occasion required, acts of ownership in respect thereto, of such a character as ought to have made his possession and ownership of said land a matter of notoriety in the vicinity thereof. In the light of the decisions of our Supreme Court, cited by counsel for defendants in error, under that head, we must regard that possession as notice of John C. White’s title to said land, with like effect as if the deed of July 29,1865, had been duly recorded.

This, then, is the case: Stephen White, being at the time free from debt or liabilities and having no intention of defrauding future creditors, in 1865, conveyed the land in question to his then infant son by way of settlement upon the latter, and that son, long before Osgood or Higgins became a creditor of said Stephen, went into and continued in the actual, open, visible possession of said land, and those subsequent creditors are endeavoring to subject said land to the payment of the judgment aforesaid, without alleging or proving any act or circumstances with which said John 0. White was connected, which might have a tendency to impair his rights in the premises.

It is clear law, that such a settlement by the father upon the son, under the circumstances as stated, is good as against Osgood, or Higgins, his assignee. Mixell v. Lutz, 84 Ill. 382; Moritz v. Hoffman, 35 Ill. 553 ; Gfridley v. Watson, 53 Ill. 186; Bridgford v. Riddell, 55 Ill. 261; Pratt v. Myers, 56 Ill. 23; Emerson v. Bemis, 69 Ill. 527; Patrick v. Patrick, 77 Ill. 555; Matthews v. Jordan, 88 Ill. 602; Patterson v. McKinneys, 97 Ill. 41.

As a matter of course, if John C. White’s title is good as against the judgment and execution in question, it is of no consequence that the said conveyance by Stephen to Emma-11. White, made in 1879, wa4 fraudulent- as to that judgment) John G. White having no connection with that1 transaction, in a way that estops him from setting up the prior deed to him.

We perceive no reason for sustaining tlie cross-error of Stephen White upon that part of the decree which subjected him to the payment of costs. The chancellor was vested with discretion as to the question of costs ; and Very good ground appears as to White’s conduct, which Avould justify the decree in that respect.

The decree will in all respects be affirmed.

Affirmed.

Moran, J., took no part in the decision of this case.


text:
    Hoffman & Billings Mfg. Co. et al. v. The Haxton Steam Heater Co. et al.
    Chancery—Practice.—-A bill in chancery brought in the court below by appellants against A, B and C; 0 filed a demurrer to the bill which the court sustained; ane. .entered an order dismissing the bill as to C, but the case was left undisposed of as to A and B. Complainants appealed from the order. Held, that appeal or error will not lie. The order was not final.
    Appeal from the Circuit Oourt of Cook county ; the Hon-Thomas A. Moran, Judge, presiding.
    Opinion filed April 7, 1886.
    Mr. H. F. White, for appellants.
    Messrs. Stiles & Leaves, for appellees.
   McAllister, J.

This was a bill in chancery, brought in the court below by the appellants against Henry T. Lally, Edward G-. Asay and the Haxton Steam Heater Company. The latter filed a demurrer to the bill, which the court sustained, and entered an order dismissing the hill as to that defendant, but the case was left undisposed of as to the other two defendants. In that condition of the case the complainants appealed from that order. Appeal or error will not lie. The order was not final. Such a case can not be pending partly in this court and partly in the court of original jurisdiction at the same time. Mor can appellate courts be required to decide cases piecemeal. To do so would, in many eases, abrogate the rule requiring that in courts of equity all necessary parties must be before the court. Thompson v. Follansbee, 55 Ill. 427, is directly in point. The appeal should be dismissed.

Appeal dismissed.

Moran, J. took no part in the decision of this case.


text:
    Barnett Graff, use, etc., v. Jacob Kahn.
    Set-off—Surety sued atune.—Where a surety on a note, bond or other obligation, is sued alone, he can plead as a set-off a demand due to his principal only where he shows that the demand has been assigned to Mm or that he makes the set-off with the concurrence and consent of his principal, and such concurrence and consent must he evidenced in such manner as to bind the principal.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed April 7, 1886.
    Messrs. Moses, Mewman & Eeed, for plaintiff in error;
    as to set-off, cited Henderson v. Lewis, 9 S. & R. 382; Cole v. Justice, 8 Ala. 795; Winston v. Metcalf, 9 Ala. 756; Drew v. Towle, 7 Foster, 427; Concord v. Pillsbury, 33 N. H. 315.
    Messrs. Flower, Eemt & Gregory and Mr. Feed L-Brooks, for defendant in error;
    cited Waterman on Set-off, § 237; Baylies on Sureties and Guarantors, 408; Brandt on Suretyship and Guaranty, § 203.
   Moran, J.

Plaintiffs in error brought an action upon an attachment bond against Kahn, who signed the bond, claiming special damage. The bond was given in a suit of Benjamin v. Gaff, and after the suit was ended and the attachment quashed Gaff assigned the bond to Moses and Newman.

The question to be determined arises upon the defendant’s third plea, which was as follows:

18. 3d plea: And for a further plea, actio non, because the supposed writing obligatory in said amended declaration was given and executed for the benefit and on behalf of said William J. Benjamin, therein mentioned, who was the real party in interest in said attachment suit, and that this defendant was simply a surety on said supposed writing obligatory for the performance by said Benjamin of the conditions of said writing obligatory, and had no interest therein or in said attachment suit.

19. And said defendants further say that before and at the time of the execution of said supposed writing obligatory in said amended declaration mentioned, and before and at the commencement of this suit, the said plaintiff was and still is indebted to the said Benjamin in the sum of $696, for goods sold, and for which said Benjamin recovered a judgment against said Graff on Sept. 16, 1884, and the costs of suit, which judgment remains unsatisfied; that said Graff is, and at the commencement of this suit and for a long time prior thereto, has been utterly insolvent; which said sums of money exceed the damages by reason of said supposed breach, etc., and said defendant is ready and willing, and hereby offers to set off and allow to the plaintiff any damages occasioned by the supposed breach in said declaration mentioned, etc.

To this plea plaintiff demurred, the demurrer was overruled, and plaintiff electing to stand hy demurrer, there was judgment for defendant. The overruling of the demurrer is assigned for error.

The plea presents the question whether a surety, when sued alone, upon a joint and several undertaking, can set off against the plaintiff a claim due from the plaintiff to his principal, without showing that the claim has been assigned to him by the principal, or alleging that he has the concurrence and assent of the principal in so setting off the claim.

It is settled in this State that the right of set-off is not limited to cases of demands between all the parties to the suit. It exists where there are mutual debts between the real parties in interest. In Himrod et al. v. Baugh, 85 Ill. 435, it was held that in a suit against a party and his sureties a debt or demand due from the plaintiff to the principal defendant, he being the real party in interest, may be set off. After citing a number of authorities which, the court state, recognize an exception under such circumstances to the general rule that joint and separate debts can not be set off against each other, the court say: “ It 'seems to be in consonance with the equitable principles wh'ch so largely govern the relations of principal and surety, and we are struck with the fitness of allowing whatever, not merely personal, would be matter of defense for the principal debtor, were he sued alone, to be admitted as a defense in favor of the principal and surety, when they are sued together.”

The same rule was applied in Engs v. Matson, 11 Bradwell, 639, and in Hayes et al. v. Cooper, 14 Bradwell, 490. In all these cases, as well as in all the cases cited in the opinion of Mr. Justice Sheldon in Himrod v. Baugh, the principal was a party defendant, with the sureties, and joined with them in the plea of set-off. There is nothing in those cases from which it can be implied that a surety, when sued alone, may, without the assent of the principal, set off a debt due the principal from the plaintiff in the suit, to discharge him, the surety, from his liability. On principle it is difficult to concede such right to the surety. It is the right of the principal to elect for himself whether he will discharge a claim which he holds against the obligee in the bond by off-setting -it .against his liability to .such.obligee. If .the surety has the right to set off such a claim without the concurrence of the principal, then he has the right to set off a claim that is larger as well as one that is less than the penalty in the bond, or the amount of damages claimed, and thus he might sacrifice his principal’s right of action for a thousand dollars, in discharging a liability against him of one hundred dollars pr less.

There could be np judgment on the- plea of set-off for any excess over the plaintiff’s claim, for the surety co.uld have no right to a judgment in his name for such excess, and the principal could np,t have a judgment in his favor in a ,§uit wdiere he was-not a party. A legal demand can not be split u p and made the basis of two actions. Set-off is but a cross-action, and-a claim which goes to judgment upon a plea of set-off , is as fully barred as if tiie same claim went to judgment in a separate action brought ¿hereon. .Forbes v. jgson, 6 Bradwell, 395.

Again, the payment of the claim set forth in this plea of set-off, by the obligee in the bond, by allowing it to be set off against his damages, would be no protection -to him in an action upon the claim.oy his creditor, the principal in the bond, for the reason that no .one can be bound by a judgment to which he is neither party nor privy.

This question was .considered by the Court of Appeals of New York, in the case of Gillespie v. Torrance, 25 N. Y. 306. There an accommodation indorser sought to avail himself, in a suit upon the note, of a breach'of warranty.as to the quality of the goods for which .the note was given. The court, after showing that defense was not failure of consideration for the note, but setting up a counter-claim of the principal maker against the payee of the note, gays: l£In the case which was shown on the trial, there would see,m to be a strong equity in favor of the defendant to have the note canceled or reduced, by applying toward its satisfaction the damages which appear to be due to Van Pelt (the principal in the note) for the breach of warranty. It is, however, an equity in which Van Pelt is interested to as great and possibly to a greater extent than the defendant, and can not be disposed of without having him before the court, so that his rights, as well as those of the defendant, may be protected.” The claim sought to be set up by the surety in that case was more strictly in the nature of a recoupment than of a set-off. It would seem to go more toward a reduction of the liability on the note, by showing a failure to perform the undertaking which was the consideration of the note. Such a defense by the surety presents a stronger basis than does an attempt to use a distinct claim of his principal as a set-off.

In the case of Lafarge v. Halsey, 1 Bosw. 171, where the sureties on a lease claimed the benefit in and sought to sot off in a suit against them for rent due, a claim of the lessee against the lessor for damages, the court said: “If by reason of any fact stated as part of this defense, Laura Keene, (the principal in the lease) might have set up a counterclaim or recoupment these defendants can not. She has assigned no such claim to them and without that they have no right to use what is in her a distinct cause of action, nor to use any part of it for their own benefit. If they are compelled to pay the rent they must, seek reimbursement from her, and she will have her recourse to the plaintiff for any damages she has sustained. That claim for damages these defendants have no right to diminish nor impair; and if she were to prosecute such claim, nothing done or proved by these defendants could be permitted to diminish her recovery.”

In Winstass v. Metcalf, 6 Ala. 756, the surety on a note was allowed to sot off the claim of his principal against the payee of the note, but the plea of set-off expressly alleged that it was with the concurrence and assent of the principal, and the note which constituted the set-off, was in the plea offered to be pro, duced in court. The court said, “The principal debtor is liable to indemnify his surety whenever the latter pays the debt; and when the former has procured a valid set-off, we perceive no sound reasons why the surety should not be permitted with Ms consent and concuri'ence, to enforce it in the same manner as if the suit was against both jointly. The case of Lyon v. State Bank does not assert a principle different from that now held ; for there no assent of the principal debtor was shown that the money due to Mon from the bank, and held in deposit, should be applied in discharge or as a set-off of the debt”

In B. & O. R. R. Co. v. Bitner, 15 W. Va. 455, the precise question here arising was decided. A surety who was. sued alone pleaded as set-off a claim of his principal for wages dué him for services rendered to the plaintiff in the suit on the bond. The plea was held bad, the court saying: “ It is true this court did decide in the' case of B. & O. Railroad Co. v. Jameson, 13 W. Va. 833, that in a suit of this character on a bond, like the one sued on in this case, the principal in the bond when sued could plead as a set-off his services rendered as an agent of the plaintiff. But this by no means establishes that the surety when sued alone on a joint and several obligation can plead as a set-off any demand due from the plaintiff to a person not a party to the suit, even though that person stands in the relation ol principal to the defendant as a surety.” (See also Springer v. Dwyer, 50 N. Y. 19 ; Sheldon on Subrogations, Sec. 101 and cases cited in notes ; Brandt on Suretyship and Guaranty, Sec. 203.)

On principle and authority, therefore, we think it clear that where a surety on a note, bond or other obligation, is sued alone, he can plead as a set-off a demand due to his principal only where he shows that the demand has been assigned to him or that he makes the set-off with the concurrence and consent of his principal, and such concurrence and consent must be evidenced in such manner as to bind the -principal. The plea of set-off of defendant Kahn was defective, and for the error in overruling plaintiff’s demurrer to said plea the case must be reversed and remanded.

Reversed and remanded.


text:
    John V. Farwell et al. v. Robert E. Jenkins.
    1. Pleading—Attachment.—As the statute formerly was, a plea in abatement was the only form in which a traverse of the facts stated, in the affidavit for attachment could be made; but as the statute is, since the revision, it is not so specially provided; and as to whether or not "a plea verified by affidavit according to the statute traversing the facts stated in the affidavit for the attachment would still have to be in form a" plea in abatement, qucere.

    2. Same—Interplea by assignee of insolvent debtor.—It is competent for the assignee of insolvent debtors, when his assignors have refused to ti averse the facts stated in the affidavits upon which an attachment suit had issued against them, not because those facts were true but because of collusion with the plaintiffs in the attachment suits, upon leave of court to intervene by interplea, setting up the assignment and his title to the property a,nd to traverse in the same plea the alleged facts on which the attachment writ issued.
    3. Same—Verification.—Such a plea being one which introduces new matter must conclude with a verification.
    Appeal'from the Circuit Court of Cook county; the Hon. John Gr. ¡Rogues, Judge, presiding.
    Opinion filed April 7, 1886.
    This was an action by appellants, John Y. Farwell & Co. against Barber & Hartman, upon a promissory note, bearing date October 21,1885, whereby the defendants promised to pay the plaintiffs on demand, the sum of twenty-seven thousand six hundred sixty-two dollars and sixty-two cents. October 30, 1885, an attachment in aid was sued out and levied upon a quantity of goods of defendants, Barber & Hartman. By special leave of the court,(Barber & Hartman not appearing to contest the case or attachment proceedings) ¡Robert E. Jenkins, December 15,1885, interpleaded, and in his plea, which was verified by his own oath, set up that the goods seized by the attachment writ were the property of Barber & Hartman at the time of the seizure, October 31, 1885, but that November 2, 1885, the said goods remaining their property, they executed to him, said Jenkins, a general assignment, under the statute, of all their property, for the benefit of their creditors, whereby he, the said Jenkins, became and was invested with all the right, title and interest of said Barfier & Hartman, ,in and to all their property, including that in said goods. The plea then proceeded to traverse all the facte stated,, as the grounds for issuing said attachment, in the.affidavit for film .same, concluding to the country. To that interplea the plaintiffs filed a special demurrer. First. That said interplea does not conclude with a verification, Tout to the country. Second. That said inter-plea contains no prayer for judgment. The court overruled said demurrer, and plaintiffs elected to stand -by their demurrer. Judgment was entered quashing -the attachment and plaintiffs bring the record to this court by appeal.
    Messrs. Tenney, Bashford & Tenney, for appellants.
    Messrs. Hodges & Shippen, for appellee.
   McAllister, J.

There being no bill.o.f. exceptions, the offiy questions that legitimately arise upon this appeal, must be upon the action of the court in sustaining the interplea of Jenkins, by overruling the .plaintiff’s demurrer thereto. The first object "on taken here to that plea is that it is not a plea in abatement, but that it traverses the fact’s stated in the affidavit for thp attaehipcnj;, -which, under .the statute, can he dope only -by the defendants ip .the attachment, and by a plea jn ahateme.pt. As the .statute formerly -was, a :plea in -abatement was the.only form in which said traverse.coffid he made. But, as .the-statute is since the-revision, jt is not specially so provided. Section 27 of the .Attachment Act reads : “ Tlie defendant may plead traversing the facts stated in the affidavit upon which -the attachment issued, which plea shall be verified by affidavit.” Perhaps, -by virtue of the provision of section twenty-six, the plea would be, in its nature, a jalea in abatement, inasmuch as its purpose is to quash the writ. That, section declares: “ The practice and pleadings .in attachment suits, except as otherwise provided in this act, shall conform, as near as may be, to the practice and pleadings in other suits at law.” 1 Starr & Cur. Stat. pp, 320-321.

So that, where the defendant in the writ pleads traversing the facts stated in the affidavit, it may be that the plea, notwithstanding the change in the words of the statute, would still have to be, in form, a plea in abatement. But the inter-plea under consideration is not controlled by that view. Section 20' of j the Attachment Act, says: “In all cases of attachment, any person, other than the defend mt, clain in ? the property attached, may interplead, verifying his plea by affidavit, etc. Then section eleven of the act concerning voluntary assignments (1 Starr & Cur. 1306) gives the assignee the sam; power over the estate of the assignor as he himself had, at the time of the assignment; power to sue for and recover in the assignee’s own name everything belonging to the assigned estate; power to do whatsoever the assignor might have done in the premises. How, giving to these several provisions a fairly liberal construction with reference to their objects and purposes, as the courts shoulddo, it seems to us entirely clear, that if the defendants in the attachment in this case refused to traverse the facts stated in the affidavit upon which that writ issued, not because those facts were true, but because, by collusion with the plaintiffs, they desired to give them a preference in fraud of the statute, or even without any fraudulent purpose, it was competent for the assignee of those defendants, upon petition to and leave by the court, to intervene by inter plea, setting up the assignment and his title to the property, and for the purpose of preventing the injustice of the property of the defendants in the attachment being wrested from their other creditors, without any foundation in truth and in fact for such attachment, to traverse in the same plea the alleged facts on which that writ issued. Waples on Attachment, p. 480; Bamberger v. Halberg, 78 Ky. 376 ; Davis v. Eppinger, 18 Cal. 377; Speyer v. Ihmels, 21 Cal. 279.

While it was competent for Jenkins to come in by inter, plea, yet in the frame of the plea he was, under the provisions of section twenty-six aforesaid of the Attachment Act, subject to the general rules of pleading. He, by his interplea, introduced new matter into the pleadings, viz., the assignment under the statute, by the defendants in the attachment, to him, averring title to the gdods which had been seized under that writ; and the interplea concludes to the country, thus depriving the plaintiffs of opportunity of answering such new matter. That was assigned as special cause of demurrer. Chitty says: “It is an established rule in pleading, that whenever new matter is introduced on either side, the pleading must conclude with a verification, in order that the other party may have an opportunity of answering it.” (1 Chit. Pl. 557.) Bailey v. Smith, 1 Root, 243; Service v. Heermance, 1 Johnson, 91; McClure v. Irwin, 3 Cow. 313. It is the practice in this State, where the interplea sets up a conveyance or title to the property, to conclude the plea with a verification. Laclede Bank v. Keeler, 103 Ill. 425.

For the error in overruling the special demurrer of plaintiffs to the inter plea, the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    Village of Hyde Park v. Joseph B. Robinson.
    Injury on sidewalk—Damages.—A judgment of $4,250.50 for damages to appellee, a stranger, for an injury caused, while walking in the evening on a sidewalk, by a fall into a ditch, which intersected the course of such sidewalk and which the village authorities had negligently left without barriers. Held, that the damages are not excessive.
    Appeal from the Superior Court of Cook county ; the lion. Sidney Smith, Judge, presiding.
    Opinion filed April 28, 1886.
    Messrs. Willard & Driggs, for appellant.
    Messrs. H. H. C. Millee and Mr. I. Stiles, for appellee.
   McAllister, J.

This was an action on the case brought by appellee, Robinson, against the appellant, the village of Hyde Tark, to recover damages for a personal injury to plaintiff, occasioned Nov. 12, 1881, while traveling in the dark at night upon a sidewalk made of boards, along one of the public streets or highways of said village, by inadvertently walking into an open ditch which intersected the course of said sidewalk, and was left, as it was alleged, without any guard or barriers to prevent such accidents, through the negligence of the defendant. There was a trial, and verdict- and judgment passed against the defendant for forty-two hundred and fifty dollars and fifty cents; and defendant brings the case here by appeal.

There is not a question of law presented by the record; but a reversal is asked upon the ground that the verdict of the jury was contrary to the instructions of the court given on behalf of the defendant, and because the damages were excessive.

The plaintiff gave testimony tending to show that at the time in question he was a stranger in the locality; that he wanted to reach a certain railroad depot to take the cars; that it was after dark and very dark; that he went from Kensington avenue upon a sidewalk along the public highway, known as the Thornton Road ; that while walking carefully, and not suspecting any danger, he was plunged into a deep ditch and severely injured. It appeared that this sidewalk had been open and used by the public for several years; that it was made of boards, thus inviting the public to use it; that the course of it was intersected by a ditch running nearly at right angles with the course of the walk, about eleven feet wide and nine and a half-feet deep, containing water; that the sidewalk on either side of the ditch came up. to within a few feet of it; that it was left without guards or barriers, and had been in that condition for months previous to the injury; nor was there any light near it at night.

The defendant endeavored, but, as we think, without success, to prove that the boundaries of Thornton Road had recently; before the time in question, been altered by the village authorities, so that some portion, at least, of the sidewalk on which the plaintiff traveled; was'outside such new boundaries. But we think a preponderance of- the' evidence was against that theory; at all e'vehts, it'-was a-mere question of fact for the jury. If, as "was" shown, said sidewalk had been open for and used by the public' for y'éars before, and it be conceded' that the village made a change of the boundaries of the highway on paper, bii't left thd" sidewalk dpén for the use of the public, as it had beén fof year's before,- tints inviting the public, and inducing strangdrs to go upon' it, in the belief that' it; was safe, and it was;-in fact, unsafe in the way above stated, the municipality would be- liable to any one injured, while in the exercise of ordinary care, by falling into said ditch.

We are of opinion' that the negligence of the defendant was manifestly gross; and it appeariiig that the injury to plaintiff was serious, causing great suffering and disability, with an almost absolute certainty of being permanent, it is no case for us to interfere, on the ground of excessiveness of damages.

Perceiving no error in thé record, the judgment below will be affirmed.

Affirmed.