text:
    The People of the State of Illinois, Defendant in Error, v. Harry F. Wilson, Plaintiff in Error.

      Dbam-shops — what proof essential to conviction for. maintaining saloon in anti-saloon territory. To warrant a verdict of guilty in such case it is essential that the People prove heyond a reasonable doubt that the act complained of took place in an anti-saloon territory or district.
    Error to the County Court of Champaign county; the Hon. W. G. Spurgin, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    F. T. Carson, for plaintiff in error.
    F. A. Coggeshall, for defendant in error; O. B. Dobbins, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of-the court.

Under an information filed October 28, 1910, charging the plaintiff in error with having maintained a nuisance, by keeping a place where intoxicating liquor was sold, in anti-saloon territory, he was found guilty by a jury in the County Court and sentenced to pay a fine of fifty dollars, to be committed to the county jail for a period of twenty days, and to enter into bonds that he would not thereafter permit the sale of intoxicating liquors upon the premises where he was found guilty of having maintained such nuisance. While the evidence fully warranted the jury in finding that the defendant had, within eighteen months prior to the filing of the information, sold intoxicating liquors upon the premises described in the information, it failed to establish that the place where the said nuisance was maintained was anti-saloon territory. The only attempt to show such fact was the introduction in evidence by the People, of a paper purporting to be a certificate of the town clerk of the town of Champaign, showing the result of a town election purporting to have been held on the 5th day of April, 1910, where the proposition “Shall this town continue to be anti-saloon territory?” was submitted; that 1661 votes were cast in the affirmative and 1304 in the negative.

To warrant a verdict of guilty it was essential that the People should prove beyond a reasonable doubt, that the act complained of took place in an anti-saloon territory or district. We do not think the proof made.was sufficient to establish such material allegation. It cannot be inferred from the mere fact ■that the question whether the town should remain anti-saloon territory was submitted to and answered in the affirmative by the voters, that the town theretofore had been declared to be anti-saloon territory.

For the reason stated, the judgment of the County Court must be reversed and the cause remanded.

;Reversed cmd remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    American Sales Book Company, Appellant, v. Edward Wemple et al., Appellees.
    1. Corporations — what not doing business in this state. Where an agent employed by a foreign corporation in a state having a restrictive statute, solicits orders, and an order so procured is sent by such traveling salesman to the home office of such foreign corporation, in a foreign state, for acceptance, and the same is there accepted and filled by direct shipment from the home office to the customer, the corporation is not deemed to be doing business -within the meaning of the restrictive statute.
    2. Pleading — when plea nul tiel corporation not essential. A plea of nul tiel corporation is not necessary in trials before justices of the peace or de novo on appeal therefrom. The question of corporate existence is sufficiently raised if counsel at the inception of the trial states that the corporate existence of the plaintiff is denied.

      Assumpsit. Appeal from the circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Charles G-. Briggle, for appellant.
    M. T. Layman, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit originally instituted before a justice of the peace, from whence it was taken by appeal to the Circuit Court. At the conclusion of the trial in the latter court, the judge directed a verdict in favor of the defendants, and rendered judgment thereon. The suit is for the recovery of the purchase price of merchandise sold by the plaintiff to the defendants.

The evidence discloses that a traveling salesman in the employ of the plaintiff called upon the defendants and procured from them a written order for certain merchandise. Such order, after specifying in detail the character and kind of goods desired, and the price and terms of payment, reads in part as follows: “This order is taken subject to the written approval of the American Sales Book Company of Elmira, New York, and when so approved shall be a valid and irrevocable contract between said parties. If the order is accepted an acknowledgment will be mailed from the factory. All accepted orders are subject to delay by accident, strikes or causes beyond our control,” to which clause is attached the name of the plaintiff. The evidence further shows that such order was forwarded to the factory of the plaintiff at Elmira, New York, and a card of acceptance of the same afterward mailed to the defendants, and the merchandise shipped from Elmira, New York, to them at Waverly, Illinois.

The motion to direct a verdict was predicated upon the alleged failure of the plaintiff to prove its corporate capacity to sue, and if ikwas a foreign corporation, its failure tó prove that it had complied with the statute relative to foreign corporations, so -as to authorize it to transact business in the State of Illinois. The remarks of the trial judge, as they appear in the record, indicate that the motion was sustained upon the latter ground.

The contention that the transaction here involved amounted to ‘ ‘ doing business ’ ’ in the State of Illinois contrary to the statute, is sufficiently answered by what is said in the opinion of this court in Hughes v. Pressed Radiator Co., 155 Ill. App. 80, in which it is held, under substantially similar facts, that where an agent employed by a foreign corporation in a state having a restrictive statute, solicits orders, and an order so procured is sent by such traveling salesman to the home office of such foreign corporation, in a foreign state, for acceptance, and the same is there accepted and filled by direct shipment from the home office to the customer, the corporation is not deemed to be “doing business” within the meaning of the restrictive statute.

"We think, however, that the contention that the plaintiff failed to prove its corporate capacity to sue, is well grounded. While it has been héld that in courts of record a written plea of nul tiel corporation is necessary where it is desired to raise the question of the corporate existence of the plaintiff, no such plea is necessary in trials before justices of the peace or de novo on appeal therefrom, no written or formal pleadings being required. All proper defenses are presumed to be pleaded. The present suit, as indicated by the summons, was instituted by the plaintiff in its alleged corporate capacity. The question of its corporate existence was sufficiently raised at the inception of the trial in the Circuit Court, at which time counsel for the defendants insisted orally that in order to recover it was essential that the plaintiff should make proof of its corporate existence. Thereafter its failure to make such proof was urged as a ground for directing a verdict. This, we think, was sufficient to raise the issue, and the defendants had the right to insist upon proof thereunder, precisely the same as if a plea had been filed. Town v. Proctor, 27 Ill. 413. Upon a careful search of the record, we are unable to find any evidence whatever tending to show that the plaintiff was a corporation, either de jure or de facto, or that it acted as or purported to be such. It is true that if it appeared that the defendants had contracted with the plaintiff as a corporation, or had executed written instruments to it as such, they would be estopped to deny the corporate existence. The evidence fails to warrant the application of such rule. The order in question in no way describes or refers to the plaintiff as a corporation, either directly or indirectly. Neither the word “corporation” nor “incorporated” appears thereupon. So far as the record discloses, there was nothing prior to the service of summons to advise the defendants that the plaintiff was or claimed to be a corporation, other than the use of the word “Company,” which is equally applicable to a partnership.

In the absence of proof of the corporate capacity of the plaintiff, the trial court properly directed a verdict for the defendants and the judgment will be affirmed.

Affirmed.


author: Mr.. Justice Puterbaugh

text:
    Annie Leutenmyer, Appellee, v. George McMahon, Appellant.
    Masters in chancery — when findings of fact not disturbed. Unless the evidence is clearly contrary to the findings of fact by the master, such findings will not be disturbed on review.
    Bill in equity. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 15, 1912.
    Charles G. Bhiggle, for appellant.
    John W. Sheehan and Hamilton & Catron, for appellee.
   Mr.. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in equity by which the complainant seeks to have set aside as fraudulent and void as to her, a creditor, a warranty deed to certain real estate, executed by one James McMahon, to his sons, George and Edward McMahon. The bill alleges and the evidence establishes the recovery by the complainant of a verdict against James McMahon for the sum of $275 on October 13, 1909; the mailing of the deed in question on the following day; the rendition of judgment upon such verdict on October 22, 1909, and the subsequent conveyance on December 22, 1909, by Edward McMahon to George McMahon of his interest in said property. The bill further alleges that said deed was made without consideration, for the purpose of defeating said judgment; that the property thereby conveyed was held in trust by the defendant, George McMahon, for the said James McMahon. The prayer of the bill, to which George is made party defendant, is that the said deed be decreed to be null and void as to the complainant, and that her said judgment be satisfied therefrom.

The defendant by his answer denies that said deed was made for the purpose charged in the bill, and alleges that he and his brother Edward McMahon bought and paid for the real estate in question, and were the equitable owners thereof; that the said James McMahon, their father, held the title of record merely as trustee for them; that when the verdict referred to was rendered against their said father, the deed in question was executed in fulfillment of an agreement theretofore made between them and their father whereby the latter had agreed to convey the property to them upon demand. The answer further alleges that the property was paid for out of the wages earned by the defendant, and the said Edward McMahon, who, although a minor, had been emancipated by his father. The defendant also filed a cross-bill to which a demurrer was sustained, whereby he asked to have the judgment in question set aside as a cloud upon his title. Acting in accordance with the findings and recommendations of the master in chancery to whom the cause was referred, the chancellor entered a decree in accordance with the prayer of the bill, and directing that the sheriff proceed under an execution issued upon the complainant’s judgment to levy upon, advertise and sell the real estate in question to satisfy the complainant’s said judgment and costs.

The evidence further discloses that in 1902, James McMahon purchased the real estate in question from one Pierik, who executed to him a bond for a deed, which provided for monthly payments of $12 until the sum of $1,600, the full purchase price, was paid; that in August, 1904, said payments having been made, Pierik executed a warranty deed to James McMahon, pursuant to said contract; that after the purchase of the property, James McMahon occupied the property as a residence, together with his three sons, but that after the conveyance of the same to the defendant and Edward, he left the State of Illinois. The evidence adduced by the complainant tended to show that dur-' ing the occupancy of the premises James McMahon exercised rights of ownership over the property; was the reputed owner thereof and frequently referred to it as his property, in the presence of his sons, who failed to deny that such was the fact; that several years prior to the purchase of the property he received a sum of money, the proceeds of a fire insurance policy; that for the past ten years he had received a pension of $12 a month; that for several years he engaged to some extent in buying, selling and trading horses and other stock; that shortly before he conveyed the property in question to his sons, with the knowledge of his sons, he brought suit in his own name against several of his adjoining neighbors, claiming among other things that they had injured him in the peaceable possession of said premises; that during the trial of said suit, as well as the suit in which the judgment here involved was rendered, the defendant and Edward McMahon, who testified in behalf of their father, referred to said premises as the property of the latter. The evidence introduced by the defendant tended to prove that for a number of years James McMahon had no property or income other than his pension; that he was supported by his sons; that while the purchase of the property was made by him, each and all of the payments therefor were made from money furnished by the defendant and his brother George; that they permitted their father to take the bond and deed in his own name under an agreement that he would convey the same to them whenever they desired; that at and during the time said payments were being made George McMahon, the defendant, was of age, and Edward, although a minor, had been emancipated by his father, and that during all of said times both of them were employed and earned enough to make said payments, and further that several times when making payments James McMahon stated that his sons were providing the money with which to make the same.

Giving to the findings of the master upon the disputed issues of fact, the full weight to which they are entitled, by reason of his having seen and heard the witnesses testify, we are nevertheless not convinced, after a careful consideration of the evidence, that the finding of the decree that the conveyance in question was fraudulent as charged in the bill is sustained by the greater weight thereof. The various facts and circumstances relied upon by complainant are in our opinion far from sufficient to overcome the clear and otherwise uncontradicted testimony of the defendant and Edward, which is well corroborated.

The judgment which it is sought by the present proceeding to enforce was based upon a tort, and it therefore cannot be said that by permitting their father to hold the record title to the property, the defendant and his brother are estopped to assert their equitable rights thereto.

The foregoing views render it unnecessary to discuss or determine the other errors assigned as grounds for reversal.

The decree of the Circuit Court is reversed.

Reversed.


text:
    The American Bonding Company of Baltimore, Appellant, v. George W. Reid, Administrator, Appellee.
    Administration of estates — effect of order removing executor and ordering payment over of funds. If such executor at the time of the entry of such order' is in court, neither he nor his surety can collaterally attack the same. His remedy, or the remedy of his surety to question such an 'order, is by appeal.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Elting & Hainline, for appellant.
    J. Boss Mickey and George D. Tunnicliee, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court dismissing the petition of the American Bonding Co. filed in the County Court in the matter of the estate of Sarah C. Hunter, deceased. The averments of said petition, briefly stated, are that Sarah C. Hunter died March 16, 1905, leaving a last will, by which she bequeathed to Susan Venable the sum of $500. to he paid to her in cash within twelve months after the death of the testatrix, of which sum she was to enjoy the income during her life; that she devised and bequeathed to Delia Dixon a house and lot in Macomb, and the remainder of her personal estate, with the exception of sundry household goods which were bequeathed to various other persons; that said will provided that the property devised and bequeathed to said Delia Dixon should be held in trust by B. B. Anderson, who was named as executor of said will, until the said Delia Dixon had attained her majority, until ■which time the said Anderson was directed to nse the net proceeds thereof and snch part of the principal as he might deem wise, in caring for and educating the said Delia Dixon; that on May 3, 1906, Anderson duly qualified as such executor, and gave bond as such, with the petitioner the American Bonding Company as surety thereon; that Anderson thereupon took possession as trustee of all of said estate except the bequest to Susan Venable and the certain household goods bequeathed to others; that during said time he collected and received from said assets $2,536.97, and paid claims allowed amounting to $797.81, leaving a balance in his hands of $1,739.16, and thereafter held the same until December 5, 1908, when in answer to a citation issued upon the petition of Delia Dixon and Susan Venable, he filed a report as executor in which, in addition to the proceeds of the personal estate received and collected by him, he erroneously charged himself with $256.50, being rents collected from the real estate, and in addition to the amount of claims paid by him erroneously credited himself with taxes on the real estate, $103.10, repairs on real estate $213.54, income on legacy of $500 paid to Susan Venable, $37.50, the sum of $500 paid for board and care of Delia Dixon, and in addition thereto the sum of $137 as his compensation as executor, leaving a balance in his hands of $1,033.45; that objections were filed to said report by Delia Dixon and Susan Venable; that upon the hearing of said objections, said executor being present in person and the objectors by their attorneys, the court found that said executor had mismanaged said estate; that he claimed to have loaned the sum of $1,000 of the assets thereof but failed to advise the court to whom the same was loaned; that he should account for said sum as money on hand; that because of his mismanagement he was not entitled to compensation as executor, and ordered that the objections to said report be sustained and that said executor account for said sums of $1,000 and $167; that said executor having stated in open court that he was unable to account for said sums, he be removed as such executor; that one Sexton be appointed as administrator de bonis non of said estate, and that said Sexton should proceed to collect from said former executor and his bondsmen said sums of money. Said petition also avers that on November 18, 1910, said Susan Venable and Delia Dixon Commans filed another petition which set up that some question had arisen as to the legality of the order of May 1, 1909, removing said Anderson as executor and appointing an administrator de bonis non; that the petitioners desired that said Anderson be again cited into court as such executor and ordered to pay to the petitioners as legatees, or to an administrator de bonis non to be appointed by the court, the sum of $1,167 remaining in his hands, and to show cause why he should not be removed as such executor on account of his being guilty of a devastavit of said estate. Said petition further avers that pursuant to such petition, a citation was issued directed to the sheriff of Will county, Illinois, ordering Anderson to appear in response thereto on December 5, 1910; that he failed to appear on said day and was defaulted; that an order was thereupon entered finding that he was guilty of a devastavit removing him as such executor, and appointing the present administrator de bonis non to complete the administration. Said petition still further avers that said default and order of December 5, 1910, were void and prejudicial to the petitioner, and should be vacated, for the reason that the court did not have jurisdiction of the said Anderson, either as trustee or executor, or of said trust property, at the time the same were entered; that the record fails to show that any legal order was ever made requiring said Anderson as executor to pay over any money to the distributees under said will, nor that he had failed or refused to pay over the same under such an order ■within thirty days after demand, nor that any demand had ever been made upon him to do so, nor that any attachment had been issued for him to the sheriff of Will county where he resided or might be found, as required by law; that he was therefore never legally removed in either capacity, but was still trustee and executor under said will; that the petitioner was liable upon his bond for his acts as such executor, but not for his aforesaid acts as trustee; that said Anderson has charged himself as executor with moneys with which he should have charged himself as trustee; that said orders and each of them should be vacated, said estate opened up, and the petitioner permitted to have said account corrected according to law and the facts; that said report of January 29, 1909, has never been approved by the court, nor said executor legally discharged; that said estate is still open; that said orders upon objections to said report, and the findings thereon are not final, but are interlocutory only, and are prejudicial to the interests of the petitioner and should be vacated. The petition prays that said Delia Dixon Commans, Susan Venable and George W. Eeid, the acting administrator de bonis non, be required to answer the same; that the orders in question be declared void; that said petition be treated as objections to said report; that said default be vacated; that the petitioner be permitted to protect its interests, and that the court shall determine the true condition of said estate and trust fund.

The petition was dismissed by the County Court upon motion of the defendants thereto, and judgment was entered against the petitioner for costs, whereupon the petitioner appealed to the Circuit Court, where a like order was entered.

We deem it unnecessary to discuss or determine the propriety of the proceedings in the County Court under the second citation, for the reason that the order and judgment of said court rendered on May 1, 1909, was final and conclusive in its nature, and the remedy of any one prejudiced or aggrieved thereby was by an appeal to the Circuit Court as provided by section 123 of the statute relating to county courts. The subsequent citation and proceedings thereunder are therefore immaterial and may properly be entirely disregarded. There can be no question that the County Court had full and complete jurisdiction over the subject-matter, as well as the person of Anderson; that both he and the Bonding Company as surety, although not a party to such proceedings, w;ere concluded and bound thereby, and if dissatisfied therewith should have prosecuted an appeal from the orders then entered. Ralston v. Wood, 15 Ill. 160. Anderson having been present in open court at the time of his removal and the entry of the order upon him to pay over the funds in his hands, neither he nor his surety can complain that the court did not proceed in the formal manner prescribed by the statute, by first attaching him for contempt. The law does not require the performance of an idle act. The disapproval of the report and the order to turn over the money found to be in his hands, to his successor, had the effect of closing the estate so far as Anderson and his surety were concerned, notwithstanding the estate was not fully administered, and after the lapse of the then present term could not be reviewed or modified except for fraud or mistake of fact. No such fraud or mistake here appears. Mere irregularities in such proceedings can only be urged in a direct proceeding for reversal by appeal.

We are of opinion that the order of the County Court entered December 5, 1908, finding that Anderson had in his hands as executor the sum of $1,167 and ordering him to pay the same to Sexton, the administrator de bonis non, was a final and binding order, not subject to review except by appeal as provided by the statute. The issues thus determined by the court are therefore res adjudicaba. There being no frand or collusion charged, the petitioner, as surety upon the bond of Anderson as executor, is bound and concluded by such order and judgment.

For the foregoing reasons the petition of the Bonding Company was properly dismissed, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John R. Howell, Appellee, v. Fred S. Wyatt et al., Appellants.
    1. Fraud — when representations as to value, actionable. Where the vendee is wholly ignorant of the value of the property and the vendor knows this and also knows that the vendee is relying upon his (the vendor’s) representation as to value and such a representation is not a mere expression of opinion hut is made as a statement of fact, which statement the vendor knows to he untrue, such a statement is a representation by which the vendor is bound.
    2. Fraud — when diligence in investigating representations not required. Where the representations relate to a material fact within the knowledge of the person making them or which he assumes to assert upon his personal knowledge and with respect to which the person to whom the representations are made has not the present opportunity or ability to test or verify, the latter has a right to rely upon such representations and in the absence of facts apparent to reasonably arouse suspicion and throw doubt upon the truth of the statement, he is not hound to go further and make inquiries in respect thereof.
    Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed March 15, 1912.
    Barber & Barber, for appellants.
    Robert H. Patton and E. E. Bone, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in ease for fraud and deceit, which in the trial court resulted in a verdict and judgment against the defendants, who are appellants here, for $3,000. The declaration charges that by two contracts in writing dated July 14,1909, and November 30,1909, respectively, the plaintiff bought from the defendants at the price of $4,500, a one-half interest in a stock of riding harrows, materials and machinery for making riding harrows, together with the right to use the patent on the same. The averments of fraud are that in order to deceive and induce the plaintiff to make the purchase, the defendants falsely and fraudulently represented to him: First, that they had at the time established a large and profitable trade in the said harrows; that they had in their place manufactured over 1,000 harrows, and had placed the same in the hands of users thereof, whereas they had not manufactured more than about 45, and had not established a large and profitable trade therein; second; that their credit was good, that the financial standing of Charles E. Wyatt was first class, and that he was able, ready and willing to furnish all the money necessary for the business, whereas in fact their credit had become bad and the said Charles E. Wyatt did not have such money in his own name; third, that they represented to the plaintiff, who was then and there inexperienced, and without any knowledge of the value of said materials and business, that they had on hand machinery and stock of the value of $10,000, when in fact it was not worth $1,000; fourth, that the machinery in question was sufficient and in such condition and order as to enable them to manufacture 30 harrows per day, whereas it was then wholly improper and inadequate for the manufacture of harrows, without expensive alteration thereof, and had never been adequate, and was not then adequate for the manufacture of even one harrow per day, and fifth, that there was in the materials and steel on hand sufficient for the manufacture of over 200 harrows, whereas there was material for the manufacture of but a small quantity, and such material was of such sizes that the same could not be used without the purchase of other materials. The defendants pleaded the general issue. Upon motion of the defendants, special interrogatories were submitted to the jury, in response to which they specially found that the plaintiff did not have a reasonable opportunity to examine the property in question before making the purchase thereof, and that he could not by the exercise of reasonable prudence and diligence have ascertained the falsity of the representations alleged to have been falsely made by the defendants.

The evidence introduced by the plaintiff tended to show that the representations substantially as charged in the declaration, were made by the defendants or one of them, to the plaintiff, for the purpose of deceiving him and inducing him to purchase an interest in the property in question, and that relying and acting upon such representations, and believing the same to be true, the plaintiff purchased a one-half interest in said property, paying therefor the sum of $4,500; that each and all of such representations were false and untrue, and that the defendants knew at the time the same were made, that they were so false and untrue.

The evidence discloses that the defendants had for several years prior to July 14, 1909, held the patent on a riding harrow and a long term lease on the building in which they manufactured the same; that prior to that date about 50 complete harrows were constructed, and a large number of sections and other parts and material were made ready for assembling; that said 50 harrows were sold and a few others assembled; that about the date in question, the defendants advertised an interest in said business for sale, in a newspaper, describing the same as a good manufacturing plant and “a splendid chance”; that the plaintiff in response to such advertisement applied to the defendants, and was told by them, or one of them, that they were manufacturing harrows; that they had given first class satisfaction, and the demand for the same was greater than they could supply; that it was a practical machine, endorsed by the farmer's, and there were over 1,000 of them in use; that the machinery had invoiced at $11,000 and was worth at least $9,000; that it was in such condition and order that thirty machines per day could be manufactured therewith, and that the value of the business, including the patent, was $9,000; that the plaintiff, who had prior thereto been a farmer and grain buyer, and who had no knowledge of machinery, or its value, and no experience in manufacturing, on several occasions inspected the plant and materials, but did not see the machinery in operation and thereafter purchased a one-third interest for $3,000, and was granted the option of purchasing a further one-sixth interest for $1,500; that after making the purchase, he and one of the defendants made a complete inventory of all the machinery and parts on hand; that thereafter he managed and controlled the business and on November 30, 1909, exercised the option granted him and purchased an additional one-sixth interest on the terms provided by the first contract.

The court admitted evidence bearing upon the misrepresentation concerning the financial standing and ability of the defendants, as giving color and credence to other representations, and as proper to consider in connection therewith, but not as a substantive element upon which to base damages. We think such ruling of the court was proper. The remaining representations clearly related to material facts. To establish the falsity of the same, the plaintiff introduced evidence which tended to show that the machinery and stock on hand at the date of the purchase was worth but little over $1,000 and was unfit and unsuitable for use in manufacturing harrows and their necessary parts, unless expensive alterations were made therein and other machinery purchased; that the defendants had not manufactured and sold, nor was there in use, the number of harrows represented by them, and that they had not established a large and profitable trade therein. There was also evidence tending to establish the truth of the special findings. Such facts, if proven, were sufficient to warrant a recovery. There was evidence tending to prove each and every of them. Both the general and special issues were properly submitted to the jury. Their conclusions of fact thereupon were not clearly against the weight of the evidence, and must be accepted as final except as' hereinafter stated, unless some error intervened upon the trial prejudicial to the defendants, or it appears that the damages awarded are excessive.

Where the vendee is wholly ignorant of the value of the property, and the vendor knows this, and also knows that the vendee is relying upon his (the vendor’s) representation as to value, and such representation is not a mere expression of opinion but is made as a statement of fact, which statement the vendor knows to be untrue, such a statement is a representation by which the vendor is bound. Murray v. Tolman, 162 Ill. 417; Custer v. Harmon, 105 Ill. App. 76; Hicks v. Stevens, 121 Ill. 186. It cannot be said as a matter of law that value is never a material fact. Statements of value made in pursuance of a scheme on the part of the defendant constitute fraud and deceit. Leonard v. Springer, 197 Ill. 532.

Where the representations .relate to a material fact within the knowledge of the person making them, or which he assumes to assert upon his personal knowledge, and with respect to which the person to whom the representations are made has not the present opportunity or ability to test or verify, the latter has a right to rely upon such representations, and in the absence of facts apparent to reasonably arouse suspicion and throw doubt upon the truth of the statements, he -is not bound to go further and make inquiries in respect thereof. Endsley v. Johns, 120 Ill. 469; Hicks v. Stevens, supra. As between the original parties, when it appears that one has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other has been misled and influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable care and diligence. Linington v. Strong, 107 Ill. 295; Leonard v. Springer, supra.; Kehl v. Abrams, 210 Ill. 218; Antle v. Sexton, 137 Ill. 410. The questions of fraud and the degree of prudence exercised by appellee in the present case were questions of fact for the determination of the jury. Kehl v. Abrams, supra.

By the instructions of the court the jury were told that if they believed from a preponderance of the evidence, that the defendants, before the execution of the contracts in this case, represented to the plaintiff that they had placed 1,000 of the riding harrows in question in the hands of farmers before that time; that the financial standing of Charles Wyatt was good, and that he was worth in his own name about $150,000; that the machinery in the plant in question was sufficient and in such condition and order that they could manufacture 30 harrows per day, and that there was material and steel on hand sufficient for the manufacture of 200 harrows; and further, that the statements and representations in question were made by the defendants, or one of them, were false in a material respect, and were known by the defendants to be false, at the time when the same were made; that the plaintiff, at the time he entered into the contract in question did not know that said representations were false, and could not by reasonable care and caution have ascertained the falsity of such representations, or that he was intentionally, knowingly and fraudulently misled or influenced by the defendants to rely upon the truth of the defendants’ statements and not to make an investigation as to the truth of such representations, and relied upon such representations, and because thereof entered into the contracts in question; that the value of said materials and machinery and business as the same was represented by the defendants was greater than the actual value of the same in the condition in which the same in truth existed at that time; then the jury should find the defendants guilty, and should assess the plaintiff’s damages, if any, at such sum as they should find from a preponderance of the evidence equals the difference between the actual value of said property and business as it existed at the time of the sale, and the value of the same as it was represented by the defendants, if any. Under the foregoing authorities the jury were thus fully and fairly and correctly advised as to the law applicable to the issues involved.

"While we are not disposed to disturb the verdict in so far as it finds the issues in favor of the plaintiff, we are of opinion that the damages awarded are excessive. No basis is afforded by the evidence for the assessment of damages other than the misrepresentations as to the value of the leasehold, patent right, machinery and stock on hand. It appears that the same were represented as being of the value of at least $9,000 while in fact the same were not worth to exceed $1,500, making a difference of $7,500. "We do not think, in view of the fact that from the time of the purchase of a one-third interest until the subsequent purchase of an additional one-sixth interest, the' plaintiff participated in the conduct of the business and assisted in taking an inventory of the tangible property, that he can be said to have exercised reasonable care and caution to ascertain the value of such' additional interest or that he was during such period so fraudulently misled or influenced by the defendants as to excuse the exercise of such diligence.

We are of opinion that the damages should have been limited to such as were occasioned by the contract for the purchase of a one-third interest, to-wit, $2,500. If the plaintiff shall within ten days from the entry of judgment herein remit the sum of $500 the judgment of the Circuit Court will be affirmed in the sum of $2,500; otherwise said judgment will be reversed and the cause remanded.

Affirmed on remittitur.

Remittitur filed and judgment affirmed.


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    In the matter of the Estate of Julia A. Bennett, Deceased, Samuel H. Bennett, Appellant.
    1. Mortgages — when assignment treated as security. If a debtor assign his interest in an estate, receiving contemporaneously from the creditor a right to re-purchase such interest, the two instruments are to be construed together, and in the absence of evidence clearly establishing that it was intended by the parties as a contract of re-purchase whereby the indebtedness was extinguished, it must be treated as a mortgage.
    2. Administration oe estates — what within jurisdiction of Pro-hate Court. The Probate Court has jurisdiction to determine to whom a fund in the hands of an administrator shall he paid if all parties to the controversy over the fund are before the court.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson,' Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Mabin & Morris, for appellant.

      Lindley, Penwell & Lindley, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal hy Samuel H. Bennett from an order of the County Court of Vermilion county, sustaining exceptions to his final report as administrator of the estate of Julia A. Bennett, deceased. The controversy arises from the following facts: On February 20,1907, Samuel Bennett was acting as conservator of the estate of his mother Julia A. Bennett. On that day William Bennett, his brother, executed to him an assignment of his prospective interest in his mother’s estate. Contemporaneously therewith Samuel executed and delivered to William a writing reciting in substance that said assignment was made in consideration of the fact that the said William Bennett was indebted to him at the time of making the same in the sum of $1,503, and that the assignment was made for the purpose of securing payment of such indebtedness with six per cent interest from February 20, 1907, and that if said William should pay to him said sum and interest before the death of said Julia A. Bennett or within six months after her death, he would transfer to him his said interest in the estate of said Julia A. Bennett.

Julia A. Bennett died May 20, 1908, leaving Samuel, William, and a daughter, Laura Oakwood, as her only heirs. Samuel by virtue of his conservatorship proceeded to administer her estate. After the execution of the foregoing assignment to him by William he had, as conservator, converted her entire estate into notes secured by mortgage, amounting to $8,952.26, and at the time of her death had securities for approximately that amount in his hands, there being practically no indebtedness existing against her. After the death of his mother, William executed and delivered to one M. B. Bailey a writing by which, after reciting, in- substance, that there was due from him to said Bailey the sum of $1,000 or more, that there was then due to him from the estate of his mother a sum of money, that he had theretofore executed the aforesaid assignment to Samuel Bennett to secure the payment of $1,503, that said Samuel had withheld a larger sum than was due him under said assignment and had refused to pay him the balance due; he assigned to said Bailey any sum which might be decreed to be due to him from said Samuel, all his rights in the estate of said Julia A. Bennett, and any claim he might have against said Samuel personally or as conservator or administrator of said estate of Julia A. Bennett.

In February, 1909, Laura Oakwood procured an order to be entered by the Probate Court directing, the administrator to pay to each of the heirs the sum of $2,000 on account of their distributive shares. In reporting distribution under such order said administrator reported that the share of William had been assigned to him, whereby the moneys payable to William had become the property of him, the said administrator. Said report was approved by the court on February 27, 1909. On February 16, 1910, he filed in the Probate Court what he termed his final report as administrator, again taking credit for said former distribution, which report was ordered approved. Notice of final settlement to be made on November 14, 1909, was afterward given to the heirs and parties in interest, whereupon William Bennett and said Bailey filed objections to all previous reports of said administrator, prayed that the orders approving the same be vacated, and that upon final settlement said administrator be ordered to deduct from the distributive share of William in said estate the amount due to him, Samuel, to then pay to Bailey the balance up to $1,000 and if there remained any balance after making such payments, that he pay the same to William. The Probate Court sustained said objections and entered an order in accordance with the prayer of said petition. Upon an appeal to the Circuit Court a similar order was entered, whereupon Samuel Bennett, individually and as administrator, prosecuted this appeal. He contends that the legal effect of the instrument executed by him to William was to give him a right to re-purchase only, and that William having failed to execute such right within the time prescribed by the instrument, the transfer should be regarded as absolute, while appellees insist that the two instruments when construed together, as they properly should be, constitute a mortgage only.

We are of opinion that the two instruments should be construed together and that in the absence of evidence clearly establishing that it was intended by the parties as a contract of re-purchase whereby the indebtedness was extinguished, it must be treated as a mortgage. Keithley v. Wood, 151 Ill. 566; Darst v. Murphy, 119 Ill. 343; Jeffery v. Robbins, 167 Ill. 375. Such mortgage not having been foreclosed according to law, either by sale after notice or by foreclosure in equity, the mortgagor and Bailey, his junior lienor or encumbrancer, had the unquestioned right to redeem within the statute of limitations, and such right could be asserted in any court having equitable jurisdiction, and that Samuel Bennett being in possession of the property without having foreclosed the right of William to redeem may properly be regarded in equity as holding the same in trust for William, and as trustee liable to account for the value of the same over and above the amount due to him from William.

We are further of opinion that the Probate Court had jurisdiction to determine and adjust the equities of the parties in and to the funds.

The fund in.question was in the hands of the administrator, subject to the order of the Probate Court; all parties in interest were present. The Probate Court thus had jurisdiction of both the subject-matter and the parties. It would seem that upon reason and principle, such court, possessing as it did, full equitable powers in the administration of the estates of deceased persons, had jurisdiction to adjust the equitable rights of the parties to such fund.

The judgment of the Circuit Court is affirmed.

:Affirmed.


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    Ezekiel W. Edwards et al., Appellees, v. Alfred L. Hamilton et al., Appellants.

      Agency — when agent liable to account to principal. While an agent may undoubtedly buy of his principal, or have an interest in the sale of property belonging to his principal, in such case the burden is upon the agent to show that the principal had knowledge not only of the fact that the agent was buying, or interested, but also of every material fact known to the agent which might affect the principal, and that having such knowledge such principal freely consented to the transaction. If the agent makes a secret profit on a transaction negotiated for his principal, his principal can compel him to account therefor.

      Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Edward D. Henry, for appellants.
    Walker & Woods and Bell & Burton, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit, the declaration consisting of the common counts only. The issues were tried by the court without a jury, and resulted in a judgment in favor of the plaintiffs for $1,370. The controversy arises out of the following facts: The plaintiffs, who resided at Carlinville, Illinois, had at some time prior to 1908 given to the defendants a sixty days’ agency to sell their farm of 130 acres near Modesta, Illinois, under which nothing was accomplished. On September 25, 1908, the plaintiff, Ezekiel Edwards, agreed with the defendant Hamilton that if the latter would sell the farm for $105 an acre within sixty days, he would allow him $1 per acre as commissions. On December 14th thereafter, Courtney met Edwards and his wife at Yirden, and introduced one Alsbury to them as a prospective buyer for the farm. Alsbury offered to buy the farm at $15,000 provided he could turn over property of the value of $2,500, in part payment therefor. Edwards refused this proposition, stating that he wanted all cash. Thereafter, on the sanie day, an instrument in writing was executed by the plaintiffs, but not by the defendants, which recited that in consideration of one dollar in. hand paid, the plaintiffs would at any time before March 2, 1909, sell and convey to the defendants the farm in question, upon the receipt from them of $13,000; that such agreement was made upon the express condition that the defendants should pay to the plaintiffs the sum of $1,000 within ten days from that date, which sum should be credited upon said purchase price of $13,000, and that a failure to make said $1,000 payment within ten days from that date would render the agreement null and void; that the plaintiffs should furnish the defendants with, an abstract of title to the premises showing them to be possessed of a good merchantable title thereto and allow them a reasonable time in which to examine the same. At the bottom of the said instrument, is an assignment by Courtney to Hamilton of his interest in the same. On December 15, 1908, Alsbury entered into a contract with Hamilton for the purchase of the property for $14,000; $2,000 of the purchase price to be paid in cash and the balance when a deed should be delivered on March 1, 1909. On December 18th, Hamilton, ont of the cash payment made by Alsbnry, paid to the plaintiffs the sum of $1,000 for which they signed a receipt endorsed upon the agreement heretofore referred to, and recited that the payment was the amount due on said agreement at that date, leaving a balance of $12,000 to be paid to them on or before March 2, 1909, and that in case the title to the lands described in the above contract proved defective and a certain sale of said lands to John C. Alsbury should fail on that account, said sum of $1,000 should be returned to said Hamilton. On January 4, 1909, at the request of Hamilton, the plaintiffs conveyed the farm to Alsbury by a deed, which recited the consideration to be $14,500. On January 6th Hamilton paid an additional $3,000 to the plaintiffs, and on March first the balance due, and the deed was delivered to Alsbury.

No propositions of law were presented to the trial judge. The only error assigned is that the finding and judgment were contrary to the evidence. The defendants contend that the evidence shows that they were in fact the real purchasers of the property in question, and that in selling the same at a profit to Alsbury, they violated no duty or obligation toward the plaintiffs; that their course in the matter was legitimate and proper; while the plaintiffs contend that the dealings and transactions were the result of a preconceived scheme Upon the part of the defendants, while assuming to be acting in the interest of the plaintiffs, to acquire gains without assuming financial risk or responsibility. There is evidence to show that the plaintiff, Ezekiel Edwards, repeatedly told the defendants that he would sell the property for $13,000 only in case they could not get a better price, and that they as often assured him that $100 per acre was all they could get; that at the time the deed conveying the land to Alsbury was read to the plaintiffs, they inquired why the consideration in the deed was $14,500 when they were only getting $13,000 for the farm, and that no explanation was made except the statement that it was immaterial what consideration was named in the deed. The evidence still further shows that the defendants were real estate dealers of many years’ experience, one of them being an attorney at law; that the plaintiffs were both aged, and had but little experience in business affairs of the nature here involved; that Ezekiel Edwards was unable to read writing and could read print imperfectly only and with difficulty. The evidence still further tends to show that the defendants never invested any money in the transaction; that the cash payments they made to the plaintiffs, of $1,000 and $2,000 respectively, were from payments made to them by Alsbury.

It will be observed that while under the terms of the contract the plaintiffs bound themselves to sell at the price named, the defendants were not bound to purchase. The position of the defendants that they were the real purchasers of the property and were making a separate and independent sale and conveyance of the same to Alsbury is inconsistent with the receipt which they procured to be signed by the plaintiffs at the time of making the cash payment of $1,000 which recites that if the title to the land should prove defective and the sale of the same to Alsbury should fail on that account, the said sum of $1,000 should be returned to the defendant Hamilton. The defendants do not claim to have at any time disclosed to the plaintiffs the facts relative to their purchase and the sale by them to Alsbury, and the evidence shows that they did not. The statement made in a letter written on January 6, 1909, by the defendant Courtney to the plaintiffs, stating that they had finally got Mr. Alsbury to accept the deed, is inconsistent with any other view than that the defendants were acting as agents of the plaintiffs in the, transaction.

We shall not attempt to further detail or discuss the evidence. It will suffice to say that the court was fully warranted in finding that the relation of principal and agent existed between the parties at the time of the transaction in question. It is well settled that an agent must act with absolute good faith and candor toward his principal. He cannot by any secret shift, evasion or device speculate in the subject-matter of his sale or become the purchaser thereof, without a full and candid statement of the facts to his principal. Authority to an agent to sell at a stipulated figure does not amount to a contract to give him all that he sells for above that sum. It is still the duty of the agent to make the property bring the highest price that can be obtained, and account to his principal for the whole sum less his reasonable or agreed compensation. Kellogg v. Keeler, 27 Ill. App. 244; Kerfoot v. Hyman, 52 Ill. 512. While an agent may undoubtedly buy of his principal, or have an interest in the sale of property belonging to his principal, in such case the burden is upon the agent to show tha,t the principal had knowledge not only of the fact that the agent was buying, or interested, but also of every material fact known to the agent which might affect the principal, and that having such knowledge such principal freely consented to the transaction. Tyler v. Sanborn, 128 Ill. 136. The evidence warrants the conclusion that the defendants, by devious methods, attempted to make and retain a secret profit on the plaintiff’s" property, which they had undertaken to sell. Such being the case, the law will compel them to account for the same. Helberg v. Nichol, 149 Ill. 249; Tyler v. Sanborn, supra. It cannot be said that the finding of the court in favor of the plaintiffs is clearly and manifestly against the weight of the evidence.'

The judgment of the Circuit Court is affirmed.

Affirmed.


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    The First National Bank of Danville, Appellee, v. Albert Delay et al., Appellants.
    1. Masters in chancery — effect given to report. While the report of a master in chancery does not have the same force as the verdict of a jury or the findings of a chancellor from oral testimony, yet where the master has seen the witnesses and observed their demeanor while testifying, his findings of fact are entitled to due weight, particularly where no question as to the competency of the evidence is made and the findings are approved by the chancellor.
    2. Creditor’s bills — when return nulla "bona not essential. A bill to set aside an alleged fraudulent conveyance in aid of an execution may be instituted and 'maintained as soon as the judgment is recovered.
    Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1911.
    Alarmed.
    Opinion filed March 15, 1912.
    F. Li. Draper and Charles Troup, for appellants.
    Swallow & Swallow, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The bill in this case, while in form similar to a creditor’s bill, may properly be treated as a bill to set aside an alleged fraudulent conveyance in aid of execution, the allegations of the bill being sufficient. It alleges the recovery of a judgment by the complainant against the defendants, Albert Delay and one Joseph Ogden, for $612.41; the issuance of an execution thereon, and the return of said execution by the sheriff nulla bona. It further alleges the insolvency of both Delay and Ogden, and that said Delay was the owner of a certain lot in the city of Danville the legal title to which was in his wife, the defendant, Sarah 0. Delay, but that the said Sarah C. Delay held the title in trust for the defendant, Albert Delay, the same having been procured by the said Albert Delay to be transferred to her for the purpose of hindering, delaying and defrauding the complainant and other creditors of the latter.

The answers of the defendants, Sarah C. and Albert Delay, deny that the conveyance to the former was made for the purpose of hindering and delaying the creditors of Albert Delay or that she held the title to said real estate in trust for him. The answer of Sarah C. Delay admits that her husband, Albert Delay, conducted the negotiations as the result of which the property was conveyed to her, and avers that he was acting as her agent in the transaction, and that the consideration paid for the property was money which she had earned in the earlier part of their married life, together with her share of moneys earned by the joint efforts of her husband and herself; that shortly before the purchase of the property in question, a division was had between her and her husband of the property jointly accumulated by them, and that the money used in paying for said property came from her separate property and funds which she had after the division aforesaid.

The decree finds that the defendant, Albert Delay, was the equitable owner of the property in question and authorizes the complainant to proceed upon another writ of execution to be issued upon said judgment, and the sheriff to proceed thereunder to levy upon and sell the said real estate in satisfaction of -complainant’s judgment. "We are not prepared to hold that the finding that the lot in question was paid for by Albert Delay and was his property, and that the conveyance of the same to his wife, Sarah C. Delay, was in fraud of the rights of complainant, the indebtedness to whom existed prior to the time of said conveyance, is contrary to or unsupported by the evidence.

Practically the only evidence introduced in support of the allegations of the answers of the defendants was the testimony of the defendants themselves. Their stories are in some respects unreasonable and self-contradictory, and impeached by the testimony of a number of witnesses in material particulars. A careful examination and consideration of all the testimony satisfies us that the master was warranted in refusing to credit either of them. While the report of a master in chancery does not have the same force as a verdict of a jury or the findings of a chancellor from oral testimony, yet where the master has seen the witnesses and observed their demeanor while testifying, his findings of facts are entitled to due weight, particularly where, as in the present case, no question as to the competency of the evidence is made and the findings are approved by the chancellor. Keuper v. Mette, 239 Ill. 586.

The contention of the defendants that the bill was prematurely filed because no demand for payment of the execution was made by the sheriff upon either of the debtors, and that the execution was not served upon them, or either of them, is without merit.

As has been said, the present bill may be treated as a bill to set aside an alleged fraudulent conveyance in aid of an execution, in which case the complainant had the right to proceed as soon as he recovered his judgment. Dawson v. Bank, 228 Ill. 577.

The decree of the Circuit Court is affirmed.

Affirmed.


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    T. E. Smith, Appellee, v. Toledo, St. Louis & Western Railroad Company, Appellant.

      Railroads — duty in constructing railway. The law casts a duty upon a railway company when constructing its railway so to construct the same as not to interfere with the natural drainage of the lands over which and adjacent to which it passes. If the flow of surface water in the natural condition of the land before the railroad was constructed, is across the proposed right of way of the railroad, means must be furnished whereby it may flow after the construction in the same manner as prior thereto. If an embankment is built, culverts and drains sufficient in size and number must be constructed to carry across the right of way the natural .drainage of the adjacent lands; that is to say, such quantities of water as are produced by rain-falls common in the vicinity, or such large or heavy rains as from the history of the community are reasonably to be expected or anticipated. A railway company is not required however to furnish better means of drainage for surface water than existed previous to the construction of its railroad. It is only required to refrain from interfering or obstructing the means of drainage provided by nature. Nor is it bound to provide sources of egress for accumulations of water produced by rains that are extraordinary in their nature and quantity and without precedent in the vicinity of its road, even though it might by the exercise of extraordinary means coupled with unusual foresight, have provided against damages by the same.
    Action in case. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 15, 1912.
    C. E. Pope and H. M. Steely, for appellant; Charles A. Schmettau, of counsel.
    Barnett & Boyle, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages alleged to have been occasioned to the property of the plaintiff, dne to an overflow of water upon his land. The declaration charges that on October 15, 1909, the plaintiff was the owner of a tract of land upon which was situated a certain building and machinery used by him in the manufacture of artificial ice and in the production of electricity; that the defendant used and operated a certain railroad track and embankment supporting the same, which embankment was adjacent to the property of the plaintiff; that the water which fell upon the land south of said track naturally flowed toward said track and across the ground occupied by the same, and but for said embankment would have flowed away in such a manner as not to injure the premises of the plaintiff; that the defendant negligently maintained across its said embankment and tracks a culvert for the purpose of carrying away the water, which said culvert was not sufficient in size for that purpose; by means whereof the said water flowed in and upon the premises of the plaintiff and thereby damaged his property. The second count of the declaration charges the maintenance of the culvert in question, and that the plaintiff by reason thereof was prevented from carrying on his business and deprived of gains and profits. A trial by jury resulted in a judgment in favor of the plaintiff for $350.

The evidence shows that the ground in the vicinity of the manufacturing plant of the plaintiff and the railroad of the defendant is low in grade, and that the defendant has since the construction of its railroad maintained an embankment immediately east of said plant, for the distance of over 1,000 feet; that it constructed and maintained two culverts through said embankment, which openings were sufficient to take care of all the water which flowed to them prior to June 25, 1909; that on the evening of that day the rain fell in such unusual quantities and within so- short a space of time, that the water rushed down in torrents from the south toward the railroad embankment and flowed over the top thereof into the plaintiff’s plant, flooding the land both north and south of the railroad and sweeping away the embankment in question; that the railroad tracks were entirely submerged for a distance of 2,000 feet; that a huge lake several feet in depth was formed on both sides of the railroad •track, which entirely surrounded plaintiff’s plant.

The law casts a duty upon a railway company when constructing its railway to so construct the same as not to interfere with the natural drainage of the lands over which and adjacent to which it passes. If the flow of surface water in the natural condition of the land before the railroad was constructed, is across the proposed right of way of the railroad, means must be furnished whereby it may flow after the construction in the same manner as prior thereto. If an embankment is built, culverts and drains sufficient in size and number must be constructed to carry across the right of way the natural drainage of the adjacent lands; that is to say, such quantities of water as are produced by rainfalls common in the vicinity, or such large or heavy rains as from the history of the community are reasonably to be expected or anticipated. •A railway company is not required, however, to furnish better means of drainage for the surface, water than existed previous to the construction of its railroad. It is only required to refrain from interfering or obstructing the means of drainage provided by nature. Nor is it bound to provide sources of egress for accumulations of water produced by rains that are extraordinary in their nature and quantity and without precedent in the vicinity of its road, even though it might by the exercise of extraordinary means coupled with unusual foresight, have provided against damages by the same. 2 Woods Railway Law, 1049; R. R. Co. v. Halloren, 53 Texas 46.

In Illinois Central R. R. Co. v. Bethel, 11 Ill. App. 17, where the facts involved were similar to those at bar, it was held that a railroad constructing its road pursuant to legislative authority over watercourses on private land, is bound to make suitable bridges, culverts or other provisions for the carrying off of the water effectually, and to keep them in suitable repair for the purpose, if practicable; that what will be deemed reasonable care in respect to the construction or repair of such bridges, culverts, etc., is that the railroad shall bring to bear all the engineering skill, knowledge and care ordinarily applied to works of like kind, in view of the size and habits of the stream and the character of its channel — such as are deemed sufficient to avoid all danger from such stream in connection with such works, in all ordinary floods or freshets. The court lays, down the proposition that by ordinary floods is understood all usual and expected freshets occurring in the stream; by extraordinary floods, freshets not occurring annually — such as are not usual and always to be expected in certain seasons in each and every year. And where a railroad has exercised ordinary care in the construction and repair of the bridges and culverts over watercourses on private land, and is not otherwise guilty of negligence, it cannot be made liable for damages occasioned an adjacent proprietor by extraordinary floods choking or washing out the channel of the stream. This case is referred to and cited with approval in Chicago & Alton R. R. Co. v. Calkins, 17 Ill. App. 55, and R. R. Co. v. Horan, 22 Ill. App. 145. See also People v. Cement Co., 22 Ill. App. 159, and Ry. Co. v. Barton, 38 Ill. App. 469.

The greater weight of the evidence in the case at bar, clearly and satisfactorily establishes that a rainfall of the character in question had never occurred in that vicinity before, and justified the conclusion that no ordinarily prudent person could have foreseen that the same was likely to occur. It is further establisbed by tbe same degree of proof, tbat tbe defendant bad provided means of drainage by tbe construction and maintenance of culverts under and through its embankment sufficient in number and size for tbe surface water to drain and flow across its right of way in tbe same manner as it bad been accustomed to flow before tbe construction of tbe railroad, and tbat tbe overflow of tbe land upon which tbe plaintiff’s plant was situated and tbe territory south of tbe railroad, was not due to any insufficiency in tbe culverts, and tbat tbe same damages would have been occasioned bad tbe railroad not been there. We are therefore of opinion tbat tbe verdict is not sustained by tbe greater weight of tbe evidence; tbat it is clearly contrary thereto. In such state of tbe proof it becomes our duty to reverse tbe judgment rendered thereon. We find as a matter of fact tbat tbe defendant was not guilty of tbe negligence charged in tbe declaration, and tbe clerk of this court will incorporate such finding in tbe judgment.

Tbe judgment of tbe Circuit Court is reversed.

Reversed.


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    Commissioners of Road Districts etc., Appellees, v. Jane A. Swain, Appellant.
    1. Roads and bridges — effect of prescriptive use. Where there has been an adverse, uninterrupted user for a period of twenty-years, the public acquires an easement in the land over which the high-way passes, and the right of entry of the landowner is barred, and if he obstructs the highway he will be liable. The fact that the highway may have been laid out in the first instance by the town authorities does not change the principle.
    2. Roads and bridges — when question of jurisdiction in action to recover penalty for obstruction of highway, waived. If such an action be instituted in the individual names of the commissioners rather than in the name of the district in which the offense was committed, the question is waived by the defendant proceeding to trial upon the merits.
    3. Justices of the peace — jurisdiction in action to recover penalty for obstruction of highway. Justices of the peace within the county where the district is located have jurisdiction to determine such an action.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Worthington & Reeve, for appellant.
    Kirby, Wilson & Baldwin, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The plaintiffs, who were road commissioners of road districts 7 and 8, in Morgan county, instituted this proceeding before a. justice of the peace, to recover from the defendant the statutory penalty for obstructing a public highway. The cause was appealed therefrom to the Circuit Court, and a verdict returned against the defendant for $3, for obstructing the public highway after notice to remove the same, and $196 for suffering the obstruction to remain for a period of 196 days after notice to remove the same. Upon motion for new trial the plaintiffs entered a remittitur of $157 of the penalty, theretofore fixed by the jury, for suffering the obstruction to remain after being duly notified to remove the same, and judgment was rendered against the defendant for $42 and costs.

It is admitted that a public highway had existed for many years somewhere along the line of the east side of the defendant’s land, the controverted question upon the trial being whether the obstruction complained of was upon a part of such public highway. The evidence discloses that for some time prior to the year 1861 and to the date of the construction of the alleged obstruction, the public highway which lay along the boundary line between road districts 7 and 8, was fenced on both sides by hedge fences, and from hedge to hedge averaged about 50 feet in width; that next to the hedge fences strips seven or eight feet in width were set apart as "grass plats; that next to the grass plats on either side of the road, there were ditches from two to three feet in width, for carrymg off surface water, and that between the ditches lay the main traveled wagon road. The evidence further discloses that this condition existed for the full length of the road. The evidence further shows that in the year 1906, a portion of the hedge fence along the west side of the road was damaged by fire, and that the defendant thereupon removed the same, for a distance of 89 rods, and built a fence some ten feet east of the line of the- hedge fence, thus taking into her field a part of the grass plat on the west side of the road. On June 13, 1910, the defendant was notified by the plaintiffs to remove such fence, and upon her failure to do so, on June 27th, filed the complaint upon which the present proceeding is founded, before a justice of the peace who resided in Morgan county but outside of the road districts in question.

The defendant offered in evidence a record of the proceedings of the county commissioners of Morgan county, which tended to show that a highway forty feet wide and within the boundaries of the alleged existing highway, was established and located by the county commissioners in 1852, but the court held such record to be incompetent and immaterial and refused to admit the same. The issue presented and tried was whether the strip fenced in by the defendant was a part of the public highway. The evidence introduced by the plaintiffs showed that for over forty years the strip of land bounded by the hedge fences had been a public highway; that the road had been graded, tiled, ditched and maintained in the usual manner; that the public had used or had the right to use at will, without interference, all of the road between the hedge fences. The plaintiffs contend that by reason thereof a highway, the boundaries of which were hot co-extensive with the highway as originally laid out, had been established by prescription. The defendant insists that the evidence shows that any use by the public of the strip of ground outside of the line of the highway as located by the county commissioners, was merely permissive and not adverse to her right, and was not continued for a period of twenty years; that there is no evidence in the record to show that the strip of land upon which the obstruction was located, was ever used by the public under any claim of right, or that any road commissioner or other person ever asserted a right in the public to said strip, until about four years after the alleged obstruction was erected. Upon the question of fact thus presented, as to whether there had been an adverse, uninterrupted user for a period of twenty years, the evidence was in conflict. We cannot say that the finding of the jury in favor of the plaintiffs was clearly against the weight of the evidence. We are, therefore, not at liberty to disturb the same.

Under the facts established by the plaintiffs’ evidence, the law presumes that all the land lying between the hedges has been dedicated for the use of the public, and the same became a public road to the same extent as though it had been laid out under the statute, without regard to the location of the highway as originally laid out. It is well settled that where there has been an adverse, uninterrupted user for a period of twenty years, the public acquires an easement in the land over which the highway passes, and the right of entry of the land-owner is barred, and if he obstructs the highway he will be liable. The fact that the highway may have been laid out in the first instance by the town authorities does not change the principle. The right of the public arises from the adverse, unintermpted user of the land for a highway for twenty years. It is the adverse possession and nse which bar the right of entry of the owner, and whether the user begins under proceedings to lay out a highway, or where the owners of lands voluntarily remove their fences and turn the land over to public use, can make no difference in principle. Landers v. Town, 154 Ill. 630; Town v. Clark, 250 Ill. 57. Although the records of the county commissioners offered in evidence might properly have been admitted we are convinced the probative force of the same would have been so slight as not to have affected the verdict; The instructions given by the court, when taken as a whole, are in harmony with the foregoing rule. We do not regard the authorities cited by counsel for the defendant as adverse thereto.

It appears from the original complaint, that this suit was instituted in the individual names of the commissioners, and not in the name of the districts in which the offense was committed as is provided by paragraph 139, chapter 121 of the statutes. Rev. Stat. 1909, page 1937. While a motion for a new trial was pending in the Circuit Court, the plaintiffs were granted leave to amend such complaint and process, so as to obviate this objection, but the abstract fails to show that such amendment was formally made. It is urged that inasmuch as the suit was not properly instituted in the name of the districts, the justice of the peace before whom it was instituted was without jurisdiction to hear the same. We are of opinion that having failed to raise the question of the jurisdiction of the Circuit Court, and proceeded to trial upon the merits, the defendant must be regarded as having waived the objection, the basis of which is more technical than substantial. Cox v. Com., 194 Ill. 355. For the same reason, the contention that the judgment should be reversed because the proceeding was not instituted before a justice of the peace of the district in which the alleged offense was committed, the justice who heard the case was without jurisdiction, is without merit. Justices within the county where the district is located have jurisdiction to try and dispose of matters of this character. The object and purpose of the requirement of paragraph 243 of the Roads and Bridges Act, are hut to confer upon those charged with the violation of the provisions, the right to be sued within the road district in which the offense is alleged to have been committed, and not to limit the jurisdiction of justices of-the peace over the subject-matter. It affects the jurisdiction of the person merely. While the right of the defendant to be sued before a justice residing within the district was a substantial one, it was nevertheless one which could be and was waived by her failure to raise the question in apt time.

It is conceded by the plaintiffs that the right to recover for the original obstruction is barred by the statute of limitations, and it is urged that the verdict was therefore erroneous in that the sum of $3 was assessed as a penalty for the original obstruction. We do not so understand the verdict. By its terms it finds the defendant guilty of obstructing the public road after notice to remove the same, as charged in the complaint, and assesses “the penalty for the same at the sum of $3.00,” and further assesses a-penalty of $196 “for suffering said obstruction to remain 196 days after notice to remove the same.” The complaint is that the defendant “has unlawfully obstructed and now obstructs unlawfully the public highway” (describing same) “by encroaching on said public highway with a post and wire fence and wooden gates,” etc., and that the defendant “although notified by these complainants to remove the said obstruction from said public highway has refused and still does refuse to remove the same.”

Notwithstanding two different penalties are assessed, the verdict, though awkwardly drafted, in effect found the defendant guilty of the latter charge only. The jury had the right to' fix the penalty for maintaining the obstruction for fourteen days after notice, at the sum of $3 per day, and such is the amount of the verdict and judgment after remittitur. The refusal of the defendant’s 24th instruction was therefore not prejudicial.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    United States of America, for use, etc., Appellant, v. Fidelity and Deposit Company of Maryland, Appellee.
    Mechanic’s liens—what not within contemplation of Federal statute providing bond of contractor to protect sub-contractors. Feed furnished for the teams of a contractor is not included within such statute.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    Jesse W. Barrett and Barthel, Farmer & Klingel, for appellant.
    Fred B. Merrills, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought in the name of the United States of America for the use of Anise Hastings, administratrix de bonis non of Samuel Hastings, deceased, against Fidelity and Deposit Company as surety on a contractor’s bond.

Defendant filed a general and special demurrer to plaintiff’s declaration, which was sustained by the court. Plaintiff chose to abide her declaration, and judgment having been entered against her for costs, she has appealed to this, court, assigning as errors that the court below erred in sustaining the demurrer to the amended declaration and in rendering judgment against her for costs.

The declaration charged that on August 26, 1902, the Shutt Improvement Company entered into a contract with the United States to construct, enlarge and repair a certain levee or levees in the lower St. Francis Levee District in the states of Missouri and Arkansas, that at the same time said Improvement Company, together with the Fidelity and Deposit Company of Maryland, in accordance with the statutes of the United States, in such cases made and provided, entered into a bond in the sum of $18,750, providing for the faithful performance by said Improvement Company of the covenants and conditions of said contract and also that said Improvement Company should “promptly make full payments to all persons supplying labor or materials in the prosecution of the work provided for in said contract;” that said Samuel Hastings, now deceased, sold and delivered to said Improvement Company to be used, arid which was actually used, in the prosecution of the work provided for, certain materials and merchandise, consisting of hay, grain, etc.; that said materials were actually used as feed for the teams which were engaged in and about the work of the construction, enlargement and repair of said levees; that of the amount to be paid said Hastings for said feed, there yet remains due and unpaid the sum of $3168.76.

Appellee in addition to a general demurrer filed a number of causes for special demurrer, but while we fully appreciate the gravity of all the questions raised by the causes of special demurrer so assigned, we deem it unnecessary to discuss here more than one of them, as that one seems to fully demonstrate that appellant’s declaration did not state a good cause of action.

The special cause of demurrer with which we are concerned states, “The declaration does show that the material alleged to have been furnished the contractor by the usee, is not material within the contemplation of the statute and is not chargeable to the defendant under the alleged bond.” The statutes of the United States referred to in the declaration provide “that hereafter any person or persons entering into a formal contract with the United States for the construction of any public building or the prosecution and completion of any public work or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond with good and 'sufficient sureties, with the additional obligations that such contractor or contractors, shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.” Vol. 2 U. S. Compiled Stat. 1901 p. 2523.

The question presented for our consideration under the special cause of demurrer above referred to is, whether the feed for teams furnished by Hastings to the Shutt Improvement Company, is or is not to be considered as material supplied that company in the prosecution of the work provided for in the contract, the language of the declaration and that of the statute being identical upon this subject.

In the case of Standard Oil Co. v. City Trust Co., 21 App. D. C. 369, it was held that lubricating oils used in the operation of the machinery of a dredge, were not materials supplied in the prosecution of the work within the meaning of the Act of Congress. In Trust Co. v. U. S., 147 Fed. Rep. 155, the plaintiff sought to recover the price of 700 tons of coal furnished the contractor for the use of hoisting engines, pumping engines and locomotives in the construction of a dry dock for the Government, and the court held the coal came.within the meaning of the statute and the surety was liable therefor, saying in the course of the opinion, “The materials need not be permanent constituents of the structure itself, but must be necessarily incident to the execution of the agreement, to come within the purview of defendant’s contract, and the coal consumed in carrying on the work, is of that character. ’ ’ The writer of that opinion discusses among other cases, Standard Oil Co. v. City Trust Co., supra, saying in reference to the same, “If the oil was really used for the preservation of the machinery, we would fully concur; but if it was in fact wholly consumed in doing the work which had been contracted for, we do not find this authority persuasive. ’ ’

In Am. Surety Co. v. Lawrenceville Cement Co., 110 Fed. Rep. 717, the court said, in distinguishing between those items sued for which the bond covered and those which it did not: “The underlying principle which has governed the master is correct in that he has discriminated between labor and materials consumed in the work or in connection therewith, and labor and materials made use of in furnishing the so called contractors’ plant and available not only for this but for other work.”

In the case of U. S. v. Morgan, 111 Fed. Rep. 474, it was held that the equipment of a steam launch used on ia contract, material for the construction of dump cars, tracks, derricks, storage sheds, shovels and similar tools, were not materials "within the statute; because “they did not enter into the construction of the public work but were in the nature of tools and appliances to be used by the contractor for his own convenience and advantage, in his execution of his contract. ’ ’

The court in U. S. v. Kimpland, 93 Fed. Rep. 403, reached the conclusion that this statute did not cover board and lodging furnished to laborers, on the contract work, saying “Sica (the claimant) gave food and necessaries to the men to give the men strength and facilities to labor; hence the men worked. But this labor was not the service rendered by Sica.”

Under an Ohio statute, which provided that “A person who performs labor or furnishes materials for or in construction of any railroad,” should be entitled to a lien for the same upon the railroad, it was declared that hay, grain, straw and feed furnished a contractor for teams employed by him on the work, were not within the meaning of the act. Penn. Co. v. Mehaffey, 75 Ohio St. 432.

In Ferguson v. Despo, 8 Ind. App. 523, under a statute giving a lien upon the right of way and franchises of a railroad corporation to “all persons who shall perform work or labor or furnish materials in the way of grading etc.”, the court refused to allow for board and groceries furnished the workmen of certain contractors, for the reason that the same were not materials entering into the construction of the work.

It will thus be seen that the question of what constitutes materials in the prosecution of the work provided for in the contract under the statute in question, is one which is not clearly covered by any general rule of construction and that the authorities upon the subject are not entirely harmonious. It might be sufficient to bring certain materials furnished to a contractor within the statute, that they were wholly consumed in the prosecution of the work, while as to others it would seem to be necessary that they should directly enter into the construction of the work. Of course the feed furnished for the teams by Hastings did not enter into the construction of the work being done by the Improvement Company, nor can it in our opinion, be properly said that it was wholly consumed “in the prosecution of the work.”

It is probably true that the feed was eaten and wholly consumed by the teams in question but that was for the purpose of maintaining the life of the teams and they could be used not only for this work but for subsequent work. In that respect the feed was similar to oil used for the preservation of machinery as referred to in City Trust Co. v. U. S., supra.

Coal purchased by a contractor doing such work would only be used in operating machinery, while- engaged in actually prosecuting the work, but the teams would have to be fed, whether they were working or not.

It appears to us the rule laid down in the case of U. S. v. Kimpland, supra, that the statute did not cover board and lodging for laborers on the contract, applies with equal force to feed furnished teams working on the contract. From a consideration of the case, and an examination of a number of authorities, where this statute has been under consideration, we have reached the conclusion that the feed furnished by Hastings, for the teams of the contractor, is not included within the statute relied on, and that the declaration therefore does not state a good cause of action.

The court below properly sustained the demurrer to the declaration and its judgment will accordingly be affirmed.

Judgment affirmed.