text:
    William W. Ramsey, Appellant, v. Jesse W. Carr et al., Appellees.
    Gen. No. 5574.

      Partnership — when not established. Held, in this case, that the partnership claimed was not established.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Buell & Abbey and Duncan, Doyle & O’Connor, for appellant.
    E. A. Creen and A. E. Butters, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

The original hill of complaint was filed in this cause in the Circuit Court of La Salle county on April 6, 1910, by William W. Eamsey as complainant against Jesse W. Carr and Thomas H. Bellrose as defendants. The hill alleged that in July, 1909, the complainant entered into a verbal contract with Carr, who resided in Sheridan in La Salle county, whereby Carr agreed to procure certain riparian rights on the Fox River, to be used in the creation of water power, and Ramsey agreed to assist in the financing and developing of said water power project; that in pursuance of said agreement, Carr had procured certain property rights and had hired Bellrose to secure others, which had been done; that, on November 22,1909, upon representation by Carr that he either had procured or could procure all the necessary rights for the creation of such a water power as was contemplated, a contract in writing was entered into by Ramsey and Carr, whereby Carr agreed to transfer all said rights to Ramsey and accept for the same twenty per cent, of the stock of a corporation to be organized to develop water power and to reimburse for all expenses attendant upon the securing of said rights, and Ramsey agreed to use his best endeavors in financing and developing said properties and water rights. The bill further alleged that Carr procured such riparian rights in the name of Bellrose who was the employe of Carr, for the purpose of defrauding Ramsey; that Carr arid Bellrose, without regard to the contract between Ramsey and Carr were attempting to sell all their rights to unknown parties, and that, unless restrained, they would make a transfer of such rights to prevent Ramsey from obtaining a decree for the specific performance of said contract. The bill alleged, a partnership agreement between Ramsey and Carr in this enterprise of establishing a water power and prayed that the defendants be decreed to convey their rights to Ramsey and that they be enjoined from conveying such rights except in accord with said contract with Carr. A general demurrer to this bill was’ sustained and thereupon complainant below took leave to file an amended bill, which was done on July 20, 1910.

The amended bill re-stated many of the facts as alleged in the original bill, alleged a partnership between Ramsey and Carr, evidenced by the written agreement or contract of November 22, 1909, and prayed that it might be decreed that all the rights acquired by the defendants, (who were the same as those to the original bill,) were acquired for the benefit of said alleged co-partnership. A demurrer to the amended bill was overruled and the defendants thereto filed separate answers. One Eobert J. Eowe, filed an intervening petition, asking to be made a party defendant and, upon this being granted, he also filed an answer. Each of the three defendants denied any partnership existing between Eamsey and Carr; and Bell-rose denied that either Carr or Eowe had any interest in the rights which had been secured in his name. The cause was referred to a master to take and report, proofs, and upon this being done the court after a hearing entered a decree dismissing the amended bill for want of equity, and complainant below appeals therefrom, alleging that the material questions in this case are: 1. Was there a partnership agreement between Eamsey and Carr; and 2. Were the rights which were procured by Eowe and Bellrose obtained by them as agents of such partnership.

A great amount of evidence, both oral and documentary was presented in this case, and after a careful examination thereof, both in the abstract and the record itself, the facts appear proven as are hereinafter set forth. The defendant Jesse W. Carr, who was a physician in Sheridan in La Salle county, and his wife had met Mrs. Eamsey, the wife of appellant, and had invited Mr. and Mrs. Eamsey to visit them on the Fourth of July, 1909. No previous acquaintance existed between Eamsey and Carr. Eamsey was a representative of the Ambursen Hydraulic Construction Company, which owned and constructed a patent dam. For the purpose of introducing and selling said rjam., the company was accustomed, through its representatives, to assist water power owners to finance water power projects, provided the contract for constraction was given the Ambnrsen Company. Ramsey was in partnership with one John H. Martin in representing the Ambnrsen Company and received a commission from the Ambursen Company on any deals which might be successfully carried out with water power owners. During the visit of the Ramseys with the Carrs Ramsey accompanied Dr. Carr in his calls upon his patients, and, in the course of their drive along the Fox River, Ramsey explained his connection with the Ambursen Company and stated that the Fox River appeared to him to be a good field for the operation of his company. Ramsey stated that the Ambursen Company would cause a corporation to be organized which would undertake the construction of water power on the Fox River and would pay the expenses of any parties who secured water rights and engineering data and would pay them for their work by giving them twenty per cent, of the stock of such company. That afternoon Carr called in his neighbor Robert J. Rowe, and the proposition was explained to him. Rowe was county surveyor, and it was agreed that he should assist Carr in procuring water rights and should also prepare such engineering data as would be needed. Ramsey left Sheridan the next day and did not return for a month or more and, in the meantime, no mention had been made by him to Rowe that he had entered into any partnership arrangement with Carr. Thereafter Carr obtained some water rights in his name and endeavored to hire one Thomas H. Bellrose to secure other rights for him. Bellrose refused to be hired but secured quite a number of such rights in his own name. These he obtained for himself alone and not under any arrangement with any other person. He bore the expense of securing them out of his own pocket and was not recompensed therefor in any way by Carr.

Carr and Rowe were not very successful in obtaining water rights, and Ramsey and Martin seem to have come to the conclusion that they would have to rely upon Bellrose to do the work for them, for they had numerous conferences with Bellrose in their offices in Chicago with reference to this matter. Bamsey admitted on the witness stand that he knew that Bell-rose was financially interested in the water power proposition and was securing rights in his own name, and yet Bamsey does not claim ever to have mentioned to Bellrose the matter of his alleged partnership arrangement with Carr.

In the fall of 1909 Bamsey prepared the document which was afterwards executed by Carr and Bamsey on November 22, 1909, and sent it to Carr for execution. Carr did not execute it then, but went to Chicago with Bellrose a few days later and met Bamsey, at which time Carr told Bamsey he could not sign such a contract, as he (Carr) did not own all the water power rights. Carr was then told by Bamsey that that made no difference; that he only desired the execution of the contract so that he could have something to show “his people,” that they might know he had authority to talk with them in regard to this water power proposition. Carr thereupon signed the contract. Bellrose was requested to sign as a witness, but refused, as he was not made a party to it. He, however, agreed that if Bamsey could interest his company in the proposition, he (Bellrose) would turn over his riparian rights to Bamsey along with those of Carr and Bowe and all three would participate in the consideration to be received.

After the execution of this contract Bamsey repeatedly told appellees that the Ambursen Company had agreed to finance the project and that the negotiations could be closed as soon as a Mr. Church, an engineer in the employ of the company, could inspect the location of the proposed water power and make a report thereon. Various dates were fixed by Bamsey for the inspection by Church, but Church never appeared on the scene. At one time the Ambnrsen Company endeavored to interest another company in the project, bnt failed. The contract between Ramsey and Carr expired by its terms on March 22, 1910, and thereafter Carr notified Ramsey that his rights thereunder had terminated. In the meantime Martin had severed his connection with Ramsey and had endeavored to interest an Iowa party in the water power project, but without avail. When Ramsey received notice of the termination of the contract from Carr, he filed his original bill herein.

The material question in this case is whether or not a partnership existed between Ramsey and Carr, and we are unable to find sufficient evidence in the record to sustain Ramsey’s contention that such a relation did exist. The contract does not in express words establish a partnership relation between the two parties, and, even if it did, in our judgment it could not be enforced, as it lacks mutuality. WTiile the so-called contract requires Carr to do and perform various things, it .did not impose upon Ramsey any obligation to do anything. It is true, the contract contained the following language: ‘ ‘ 4th. The said William W. Ramsey for himself and his associates does hereby agree to comply with all the conditions herein within four months from date hereof,” but the conditions of the contract do not mention Ramsey by name or by implication nor require him to take any steps towards the carrying out of the contract. But further, if it could be said that the reasonable intendment of the language of the contract required Ramsey to make the financial arrangements for a water power corporation, still such an interpretation of the contract could not inure to the benefit of Ramsey, for he had entirely failed to make such financial arrangements and the time within which he was to perform such services had expired.

But there is still another reason why a court of equity cannot look -with favor upon Eamsey’s contention that a relation of partnership existed between himself and oCarr by reason of the so-called contract. At the time of Eamsey’s first visit to the Fox Eiver, and during the progress of all the negotiations and nearly up to the time of the expiration of the contract, Eamsey was in partnership with Martin in representing the Ambursen Company in the sale of its patented dam. As stated before, the usual means employed by Eamsey and Martin for selling such dam was the inducing of property owners to form water power companies and incidentally to purchase the patented dam of the Ambursen Company, their employers. The effect of Eamsey’s partnership with Martin and his employment by the Ambursen Company would be to make him desirous of selling such dam or taking a contract for its erection on terms most favorable to the Ambursen Company and least favorable to the property owners or to the water power company formed by them. Eamsey and Martin were paid by commission by the Ambursen Company and, of course, the amount of their commission depended upon their obtaining terms as favorable as possible to the company. This position is entirely inconsistent with and antagonistic to Eamsey’s position as a partner of Carr in the formation of a water power company, where his interests and those of his partner should lead him to obtain the most favorable terms for the water power company, which terms would naturally be less favorable to the Ambursen Company. Equity cannot aid Eamsey when he assumes such positions, naturally hostile to each other. We conclude that Eamsey has not established any such equitable rights as he set up' in his amended bill of complaint.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Mary Kelly, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5578.
    1. Appeals and errors — when rulings upon instructions saved for review. If the hill of exceptions shows an exception to the action of the court in refusing an instruction the propriety of such action is saved for review without a motion for a new trial appearing in the hill of exceptions.
    2. Appeals and errors — when sufficiency of evidence not saved for review. If the motion for a new trial has been withdrawn the sufficiency of the evidence to support the verdict is not saved for review.
    3. Instructions — when motion for peremptory should he denied. Upon a motion for a peremptory instruction a question as to where the preponderance lies is not to be considered hut the instruction asked is to he refused if there is evidence tending to prove the plaintiff’s contentions.
    Action in case for personal injuries. Appeal from the City Court of Aurora; the Hon. E. M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Hopkins, Peppers & Hopkins and Franklin B. Hussey, for appellant.
    B. P. Alschuler, R. C. Putnam and J. C. James, for appellee.
   Mr. Justice Willis

delivered tlie opinion of the court.

Mary Kelly, appellee, sued the Aurora, Elgin & Chicago Railroad Company, appellant, for personal injuries alleged to have been received by her on one of its street cars. She claimed $10,000 damages. The company introduced in evidence an instrument purporting to be a release of the damages. At the close of all the evidence the company moved the court to exclude the evidence and direct a verdict of not guilty. This motion was denied and the instruction accompanying it refused. She had a verdict for $900. The company made a motion for a new trial, which it later withdrew. Judgment was entered on the verdict. The company prosecutes this appeal.

The only error assigned for a reversal of the judgment of the court below was the overruling of the motion at the close of all the evidence to instruct the jury to find appellant not guilty, and in refusing the instruction tendered therewith, for the reason that the release admitted in evidence was a bar to appellee’s' cause of action.

It was held in Illinois Central Railroad Company v. O’Keefe, 154 Ill. 508, and in Tarber v. Chicago and Alton Railway Company, 235 Ill. 589, that the action of the trial court in giving and refusing instructions may be reviewed without a motion for a new trial, where the rulings thereon have been excepted to and incorporated in the bill of exceptions. The bill of exceptions shows an exception to the action of the court in overruling the motion and in refusing the instruction. This authorizes this court to review the action of the trial court in refusing to instruct the jury to find appellant not guilty.

The evidence shows that Dr. MacDonald, appellant’s physician, and Adams, its claim agent, visited appellee at her home six days after the accident and had a conversation with her; that the sum of $25 was agreed upon to be paid to her; that Adams presented her with a paper and asked her to sign it; that her daughter was called in from an adjoining room and wrote appellee’s name, and appellee made her mark; and that Adams gave her a check for said sum. Appellee testified that Adams told her that it was a receipt for damages to her clothing and an umbrella that were injured in the accident, and for the wages of her daughter who gave up her employment for a period on account of appellee’s injury; that nothing was said about its being a settlement for her injuries; that she did not read the paper as she was too nervous, and her head and eyes were so had that she could not see with her glasses; that it was not read to her and that she took Adams ’ word that it was a receipt. The daughter testified that Adams asked her to sign a receipt; that she did not read the paper and he did not read it to her; that he did not tell her what was in it; that she thought she was signing a receipt; that she heard him say to her mother that the $25 was for damages done to the clothing and umbrella and for two weeks’ wages. Adams testified that he read the entiré paper to appellee; that he told her it was a regular form of release used in the settlement of claims, or words to that effect. MacDonald also testified that Adams read the paper to appellee and that she said it was satisfactory.

The release in its terms is sufficient to release any damages appellee may have sustained, if, however, appellee’s evidence is true, and she was induced to sign the release by representations that it covered merely her claim for damages to her clothing, the umbrella and for the daughter’s wages or if she signed it under such a belief, induced by the words or acts of Adams and MacDonald, her evidence tended to impeach the validity of the release. Illinois Central Railroad Company v. Welch, 52 Ill. 183; Chicago, Rock Island and Pacific Railway Company v. Lewis, 109 Ill. 120; Papke v. Hammond Company, 192 Ill. 631; Chicago City Railway Company v. McClain, 211 Ill. 589; Hartley v. The Chicago and Alton Railroad Company, 214 Ill. 78; Ohlmeyer v. Am. Steel and Wire Co., 168 Ill. App. 195, opinion filed by us this day. Since there was evidence tending to impeach the validity of the release, it was the duty of the court below, in passing on the motion to direct a verdict, to assume that such evidence was true, refuse the instruction, and submit the question whether the release was executed under such circumstances that it was not binding upon appellee, to the jury, as a question of fact, even if the verdict, if returned, should be set aside for the reason that it was against the manifest weight of all the evidence, and a new trial granted, because in passing on a motion for a peremptory instruction the question of the preponderance, of the evidence does not arise at all. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

Notwithstanding the fact that the only error assigned was the court’s refusal to direct a verdict, appellant’s argument is really that we should weigh the evidence and hold that Dr. MacDonald and Adams told the truth and that their evidence entirely outweighs and overcomes the evidence of appellee. The question of the sufficiency of the evidence to support the verdict of a jury and the judgment rendered thereon is •not open to review, even in courts having jurisdiction to determine that question, unless a motion for a new trial has been made, and the motion overruled and the exception thereto preserved by the bill of exceptions. Reichwald v. Gaylord, 73 Ill. 503; Law v. Fletcher, 84 Ill. 45; Illinois Central Railroad Company v. O’Keefe, supra. It may very well be that if appellant had not withdrawn its motion for a new trial we would be compelled to hold that there was a clear preponderance of the evidence that appellee understood and knew what she was doing when she signed the release, and is bound by it; but by withdrawing the motion for a new trial, appellant had withdrawn the question of the sufficiency of the evidence to sustain the verdict from our consideration.

The court did not err in refusing to direct a verdict for appellant, and the judgment is therefore affirmed.

Affirmed.


text:
    Michael D. Harvey, Appellee, v. William McGuirk, Appellant.
    Gen. No. 5581.

      Verdicts — when set aside as against the evidence. A second verdict based upon substantially tbe same evidence as was previously introduced will be set aside as against tbe evidence and a final judgment rendered in favor of tbe adverse party where tbe evidence does not support tbe judgment rendered in tbe lower court.
    Assumpsit. Appeal from tbe Circuit Court of Lee county; tbe Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.

    Reversed.
    Opinion filed March 13, 1912.
    Mighell, G-unsul & Allen and "William H. Winn, for appellant.
    Brooks & Brooks and John E. Irwin, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an action in assumpsit brought by appellee against appellant to recover half the profits alleged to have been made in a real estate transaction. The case was before this court in 158 Ill. App. 50 and a judgment for $1,250 in favor of appellee disposed of as follows: “The judgment is reversed, but as appellee may produce other evidence at another trial, the cause is remanded.” A second trial resulted in a verdict and a judgment in favor of appellee for $560.75 from which this appeal is prosecuted.

It is contended that the verdict is not warranted by the evidence and that the court erred in ruling on instructions. From the view we take of the facts it will be necessary to consider only the first contention.

The evidence shows that appellee and appellant are farmers. Appellee testified that in April, 1908, he told appellant that he was buying a farm, but did not have enough to pay for it and asked appellant if he had any money to loan; that appellant asked how-much land he was buying and who owned it and said: “Take me in partners in this matter, I have the money, and we can * # * turn this property on halves, ” and that he replied, “It is the Odell farm,” and appellant said, “Tes, I know all about that.” The proof shows that without any further conversation between the parties appellant bought the farm for $3,900 although the deed expressed a consideration of $8,000 and that he gave his notes for $4,500 secured by a mortgage on the farm; that he put in a crop and later exchanged the farm, subject to such mortgage, for town property and paid $1,000 in addition thereto, the consideration named in the deed being $9,500.

The only proof that tends to show that there was any profit realized by appellant is the amount of the consideration in the deed given in exchange for the town property, and the testimony of Charles Eoss that he heard appellant say in a saloon that he had a little deal with a man west of town and that he had cleared up $5,000 or $6,000 thereby and that it was Mike Harvey. Appellant denied that he had this conversation and denied being in the saloon at that time. Appellant testified that in addition to the $3,900 paid for the farm and $1,000 given on the exchange of property, that he paid $288 for interest and a release of the mortgage, $142 for perfecting the title, $356 for planting and harvesting the crop, $70 for taxes; that he realized $4,500 from the loan, $100 from the crop and $950 from the town property. Tins shows a loss of $206 in the entire transaction. He is corroborated in regard to the purchase price of $3,900 by the testimony of Mrs. Odell and the original articles of agreement for a deed; in regard to the $1,000 paid on the exchange of property by the purchaser; as to the taxes, interest and release of the mortgage by the receipts and one witness. As to the charges in perfecting the title his testimony is not contradicted. Some of the items paid out in planting and harvesting the crop were corroborated, and none of these items or the amount received for the crop were disputed, and that the amount received for .the town property was its fair cash market value is established by two witnesses. The evidence of the receipt of the $4,500 was introduced by appellee. It seems obvious that this evidence completely refutes any inference that there was a profit realized from the transaction.

Appellee introduced evidence to impeach appellant’s testimony on the ground that he made statements outside of court contrary to his sworn testimony, from which he argues that appellant was not telling the truth about his losses and the value of the farm. If it be true that appellant made the statements attributed to him, it would not tend to show that a profit was realized from the transaction for the reason that his testimony on every material question tending to show that there was a loss was abundantly corroborated by other credible evidence.

The only proof, aside from appellee’s own testimony, that tends to show that the parties were jointly interested in the transaction, is the testimony of one Brierton that he heard appellant say to one Dr. Johnson that he had entered into a partnership with appellee on the Odell deal. Appellant denied such conversation and Dr. Johnson testified that he had no recollection of it, and appellant denied that there was a partnership. Appellee did not take any part in the transaction, advanced no money towards the purchase of the farm, assumed no liability and did not agree to share any loss. All he did was to inform appellant of the location and ownership of the farm, which information appellant already possessed. In view of all the facts, the actions of appellee are inconsistent with his testimony that the parties entered into a partnership for a division of the profits. But, as no profits were realized from the transaction, it is immaterial whether there was a partnership or not.

The evidence in this record is substantially the same as in the former, and as we said in the opinion there, to sustain the judgment it must be shown by a preponderance of the evidence that appellant made a profit in the transaction, and as a clear preponderance of the evidence in this record shows that appellant realized no profits, the judgment is manifestly against the evidence and cannot be sustained.

Reversed.

Finding of facts to be incorporated in the record: We find that appellant derived no profits from the transaction, and that appellee was not a paitner of appellant therein.


text:
    August Prante, Appellant, v. John J. Hartman, Appellee.
    Gen. No. 5582.
    1. Appeals and errors — what not part of record. A bill of particulars is not a part of the record proper unless incorporated in a bill of exceptions.
    2. Instructions — when special accuracy required. Where the case is close on the facts the instructions must be peculiarly accurate.
    3. Instructions — ignoring material fact. An instruction is erroneous which ignores a material fact involved in the controversy.
    4. Instructions — what essential where verdict is directed. It is not required that one instruction shall state all the law, and the instructions may supplement each other and supply defects, but where an instruction directs a verdict upon certain conditions it must state the conditions correctly.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    Witte & Manus, for appellant.
    Roscos J. Carnahan, for appellee; Robert P. Eckert, of counsel.
   Mr. Justice Willis

delivered the opinion of the -court.

August Prante sued John J. Hartman before a justice of the peace of Stephenson county to recover for wages of his minor son, a set of horse shoes and the use of a horse. Hartman pleaded a set-off based on a charge for the care and keep of Prante’s stallion. Prante obtained a verdict and a judgment, from which Hartman appealed to the Circuit Court of said county. On a trial there the jury found the issues for Hartman on the plea of set-off and assessed his damages at $7. Judgment was entered on the verdict and Prante prosecutes this appeal.

It is stated in both briefs that each party amended his bill of particulars in the Circuit Court, appellant adding thereto damages to the stallion, and withdrawing his claim for horse shoes and the use of the horse; appellee increasing the value of his services and also adding damages done by the stallion. As the bills of particulars are not a part of the record and were not incorporated in the bill of exceptions, we cannot know what information they .contained. Hess Co. v. Dawson, 149 Ill. 138; Chicago Attachment Co. v. Davis S. M. Co., 33 Ill. App. 362; Robinson v. Holmes, 75 Ill. App. 203. But if amended bills of particulars were filed their omission from the bill of exceptions would in no way affect the issues here for the reason that there was evidence not objected to tending to establish the alleged amendments.

It is not disputed that appellant’s fourteen year old son went to live in the family of appellee some time in the spring of 1908 and remained there most of the time for about three years, nor is it disputed that for the first year he was to receive no compensation other than his board and care, but the evidence as to how much labor he performed and as to whether he was to receive compensation after the first year and what the amount of the compensation should be is in sharp conflict. It is not disputed that appellee kept appellant’s stallion for about eleven months.- Appellant’s proof tended to show that the value of the stallion was reduced from $500 to $200 while in the possession of appellee. Appellee’s proof tended to show that the value of the stallion was not depreciated to so great an extent. The testimony bearing upon all the material controverted issues was directly contradictory. That, in behalf of either party, standing alone, would have sufficiently supported a finding in his favor. In such state of the case it is familiar law that the instructions of the court upon the issues must .-be accurate.

Appellee’s second instruction told the jury that appellant was seeking to recover wages claimed to be due him for services rendered by his minor son; that appellee claimed a set-off for services rendered in keeping a certain stallion belonging to appellant, but omitted from the statement that appellant was seeking to recover for damages to the stallion, thus limiting appellant’s recovery to the services of his son. Instructions should not ignore any material fact involved in the controversy provided there is some evidence concerning it. Calef v. Thomas, 81 Ill. 478; Chicago Packing and Provision Co. v. Tilton, 87 Ill. 547; C. M. & St. P. Ry. Co. v. O’Sullivan, 143 Ill. 48.

Appellee’s third instruction told the jury that if they believed from all the evidence that appellant was entitled to recover for the services rendered by his son and if they further believed from a preponderance of the evidence that appellee was entitled to recover for services rendered by Mm in caring for the stallion, if tbe difference was for appellee they should find for him and if the difference was for appellant they should find for him. This instruction again limits appellant’s recovery to services rendered by the son and directs a verdict for appellee if what they allowed for appellant’s son is less than what they-allowed for services in keeping the stallion. The omission from the instruction of the element that appellant was also seeking to recover for damages to the stallion was not cured by any instructions in the case and could not be. It is not required that one instruction shall state all the law, and the instructions may supplement each other and supply defects, but where an instruction directs a verdict upon certain conditions, it must state the conditions correctly. W. St. B. & P. Ry. Co. v. Rector, 104 Ill. 296; Correll v. Payson, 170 Ill. 213; Ill. Iron and Metal Co. v. Weber, 196 Ill. 526.

The prejudicial effect of these instructions cannot, we think, be doubted, and because they were given, the judgment must be, and is reversed.

Reversed and remanded.


text:
    The People for use of Rock Island County, Appellee, v. David H. Lyons et al., Appellants.
    Gen. No. 5585.
    1. Evidence — when certificate to records not vitiated by clerical error. If the office of county clerk and that of clerk of the County Court are both held by the same person a certificate to records of the Board of Supervisors signed by such person is not vitiated by the fact that he appends to his signature the désignation of clerk of the County Court.
    2. Presumptions — as to performance of oficial duties. It will he presumed until the contrary is shown that a public official who signs a certificate attaches the proper seal.
    3. Counties — presumption as to proceedings of county boards. In passing judicially upon the records- of county boards where authority appears or is implied by law such records will be construed according to their intent and yet it will be presumed that the proceedings were rightfully had in the absence of all suggestion in the records to the contrary.
    4. Counties — extent of right to recover upon treasurer's bond. If the county treasurer retain money which' is given into his hands as supervisor of assessments the county may recover the whole sum retained irrespective of the distribution of the funds which subsequently has to be made.
    5. Reformation — jurisdiction of chancery. Where through the mistake or oversight in the execution of an agreement a seal necessary to its validity is omitted therefrom but the instrument purports to be, on its face, a sealed instrument, it will, ordinarily, itself furnish the evidence showing the oversight or mistake and a court of chancery will correct it.
    6. Fees and salaries. — when county treasurer not entitled to extra compensation. If after the term of office and the salary of a county treasurer have been fixed new duties are added to his office without creating a new office, he is not entitled to the extra compensation provided for the performance of such duties.

      7. Bonds — when county treasurer in default. Held, that under the bond of a county treasurer a recovery could be had against his sureties for sums retained by such county treasurer as extra compensation for services rendered as supervisor of assessments, notwithstanding the duties of supervisor of assessments were added to his office after his bond had been given.
    8. Interest — money appropriated by a public officer. In all cases where a public officer appropriates and converts to his own use moneys which he holds in his official capacity and upon proper demand refuses to pay over the same, such officer and his sureties will be liable on his official bond for the amount of money thus appropriated with interest thereon.
    9. Decrees — jurisdiction to enforce. A court of chancery always retains jurisdiction to enter such further orders or decrees to the end that complete justice may be done between all the parties necessary to carry into effect the original decree of the court.
    Appeal from the Circuit Court of Rock.Island county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    J. T. & S. B. Kenworthy and J. B. & J. L. Oakleaf, for appellants.

      Searle & Marshall, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On September 13, 1902, the board of supervisors of Bock Island county fixed the annual salary of the county treasurer for the term beginning December 1, 1902. Later David H. Lyons was elected treasurer of said county. He presented to the county board an instrument dated January 16, 1903, purporting to be his official bond as such, which was approved January 27, of that. year. It contained, among other recitals, the following: “signed with our hands and sealed with our seals,” and was signed by all the defendants except W. C. Bennett and Thomas E. Cassidy, executors of the will of J. S. Leas, a deceased signer. The signers of the instrument omitted to affix their seals. On December 3,1906, the date of the expiration of his term of office he withheld $3416.70. The board of supervisors demanded this sum and he refused to pay it, claiming it as compensation for services as supervisor of assessments. Later a bill in equity charging the foregoing facts in detail was filed in the name of the people for the use of Bock Island county against Lyons and all the living signers and the executors of Leas, a deceased signer, praying that the bond be reformed by affixing the seals of the signers and that an accounting might be had with Lyons and a money decree entered against all the signers for any amount found to be due, with interest thereon, and for general relief. A demurrer to the bill was overruled. Lyons answered the bill in full, admitting some of the charges, denying others and demanding strict proof thereof. The other defendants answered, professing ignorance of the charges, demanding proof thereof and adopting Lyons’ answer. There was a hearing and a decree. reforming the bond by affixing the seals of the signers thereof and a finding that it was the official bond of Lyons as county treasurer and that its conditions had been broken and the defendants were ordered to pay $3416.70 with interest thereon at 5% per annum from December 3, 1906, the date of the demand, and costs of suit, except the defendants, Bennett and Cassidy, who were directed to pay in due course of administration of Leas’ estate. The court retained jurisdiction of the cause for the purpose of enforcing the decree. All the defendants appealed.

Appellee offered in evidence a transcript of the proceedings of the board of supervisors of Bock Island county fixing the salary of the county treasurer, signed, “Henry B. Hubbard Clerk of the County Court.” To the left of the signature was the word, “Seal”. It is contended that this certificate should have been signed by the county clerk and should have had the seal of the county attached. No authority is cited in support of this contention. The law makes the county clerk keeper of the records of the board of supervisors. Hubbard explained that he had but one seal, that of clerk of the County Court, and he certified that he was clerk of the County Court and keeper of the records of the board of supervisors, and that the copy was true and correct. As the same person acts in the dual capacity of county clerk and clerk of the County Court, a certificate is not necessarily vitiated because he attaches to his' signature the words, “Clerk of the County Court,” when he should attach the words “County Clerk”. Parties are bound to take notice of the fact that the clerk of the County Court is county clerk. People v. Munroe, 227 Ill. 604; People v. Phinney, 231 Ill. 180. Since the presumption always is that public authorities do their duty, it will be presumed until the contrary is shown that. the public official who signed this certificate attached the proper seal. Lyman v. City of Chicago, 211 Ill. 209; City of Peoria v. Central National Bank, 224 Ill. 43; Waite v. Green River Drainage Dist., 226 Ill. 207. Besides the evideuce of the county clerk proved the correctness of the copy, and a record may he proved by an examined copy. People v. Joyce, 154 Ill. App. 13.

It is also contended that the proceedings, if properly certified, are insufficient because the record thereof does not show the legal organization of the board or that there was a quorum present and a majority voting for the resolution. In passing judicially upon the records of county boards where authority appears or is implied by law, such records will be construed according to their intent and it will be presumed that the proceedings were rightfully had, in the absence of all suggestion in the record to the contrary. State v. Crawford Co. Supervisors, 39 Wis. 596. It will be presumed that the members of such board as public officers have done their duty (Loesnitz v. Seelinger, 127 Ind. 422, 25 N. E. 1037), that their meetings were properly convened and at the time designated by law (Loesnitz v. Seelinger, supra; Bartlett v. Eau Claire county, 112 Wis. 237), and that a quorum of the board was present. Lacey v. Davis, 4 Mich. 140; State v. Crawford Co. Supervisors, supra. And where the record recited the adoption of a certain resolution without disclosing a majority, it will be presumed that such resolution received the necessary majority. Giddings v. Wells, 99 Mich. 221. In Bartlett v. Eau Claire Co., supra, it is said: “All reasonable liberality must be accorded the minor deliberate bodies of the state; notably county boards * * * where, by reason of the character and vocation of the men comprising such bodies, the technicalities of procedure are not strictly enforced, nor perhaps fully understood. We must not expect nor demand the records of such meetings should be made with the accuracy and technicality of. those of monetary corporations, conducted under the direction of skilled counsel; nor, indeed, of the legislature itself.” In Giddings v. Wells supra, the court, in speaking of a record of a board of supervisors, said: “When, therefore, the record does not disclose the majority, bnt does set forth the adoption of. the resolution, it will be presumed that it received the necessary vote under the law.”

The jurisdiction of a court of chancery to so correct mistakes in contracts and agreements as to make them express the actual intent of the parties is one of the ancient and well established heads of the jurisdiction of that court. Where, through mistake or oversight in the execution of an agreement, a seal necessary to its validity is omitted therefrom, but the instrument purports, on its face, to be a sealed instrument, it will, ordinarily, itself furnish the evidence showing the oversight or mistake, and a court of chancery will correct it. Henkleman v. Peterson, 154 Ill. 419. The bond, by its recitals, shows plainly that it was intended as and for the official bond of Lyons as county treasurer. That it was intended to be under seal is shown by the recital, “Sealed with our seals.” Lyons and his sureties,’by signing, acknowledging and delivering this instrument, furnished all the proof the law requires to justify the decree of reformation. Henkleman v. Peterson, supra.

In Keith v. Henkleman, 173 Ill. 137, damages were assessed on the bond reformed in Henkleman v. Peterson, supra, on the ground that equity having taken jurisdiction to reform the bond would retain it for the purpose of giving complete relief, by assessing the damages on the bond.

All the sureties except Allen, Ainsworth and Leas testified that they signed the instrument as and for the official bond of Lyons as county treasurer, and all who testified, except Oakleaf, said that they did not notice the absence of the seals. He said he signed the instrument as the bond of Lyons but that he noticed the absence of the seals. It is argued that the bond cannot be reformed as to Allen, Ainsworth, Leas and Oakleaf. Under the authority of Henkleman v. Peterson, supra, we are of the opinion that the court was warranted in holding that they were hound by the statement over their signatures, “Sealed with our seals,” and that Oakleaf’s oral evidence could not overcome this statement.

Appellants contend that Lyons was entitled to the amount retained by him as supervisor of assessments by virtue of the law of 1898. At the time Lyons qualified as county treasurer the office of supervisor of assessments and county treasurer were not different, but the same office. In Parker v. County of Richland, 214 Ill. 165, it was held, on the authority of Foote v. Lake County, 206 Ill. 185, that Sec. 2 of the revenue act of 1898 providing that in counties of this class (Eock Island) the county treasurer shall be ex oficio supervisor of assessments, does not create a new office, but adds new duties to the office of county treasurer, and also that under that act the compensation of county treasurer, as fixed by the county board according to law, includes payment for his services rendered as ex of do supervisor of assessments. True, after he took the office of county treasurer for which this bond was given and after his salary had been -fixed by the board of supervisors, the act of 1903 was passed, allowing compensation to county treasurers as supervisors of assessments but the act of 1898 not creating a new office, and simply adding new duties to the office of county treasurer, whose compensation had been fixed by the resolution passed before he came into office, that compensation could neither be diminished nor increased during his term of office. Therefore it cannot be held that Lyons was entitled to retain the money as supervisor of assessments.

Lyons had but one account book which was entitled, “Collector’s and Treasurer’s Accounts of County Funds of Eock Island county,” which, on the credit side, contained four entries, one after the other, of amounts paid the supervisor of assessments for a portion of the year 1903 and the others for the years 1904, 1905 and 1906 respectively. Appellants contend that if Lyons retained any money unlawfully, it was as county collector and not as county treasurer, and that his bond as county collector and not his bond as county treasurer is liable therefor. To this, we think, there are two replies. First, he credits himself as having paid this to the supervisor of assessments. The supervisor of assessments is under the holding in Foote v. Lake county and Parker v. County of Richland, supra, the county treasurer, and if he paid the money to the supervisor of assessments, he paid it to the county treasurer, and the fact that he did not, on the other hooks of the county treasurer, charge himself with that sum, cannot make any difference with his liability as county treasurer. Second, if he paid the money as collector to the county treasurer, the county treasurer is liable, regardless of his hooks. The statute requires the moneys received by the county collector to he paid to the county treasurer, and it is from the county treasurer that the statute of 1898 requires the salary of supervisor of assessments to he paid. He could not lawfully have it in his hands to retain for that salary, if the act had been followed, until it was in his hands as treasurer. We conclude that his bond as treasurer was properly held liable for the sum so retained by him under Ms “claim of right” as supervisor of assessments.

Appellants argue that they were not liable to he charged with interest because there was no legal- demand for the fund. The evidence is conclusive that on December 6, 1906, a committee from the board demanded the money and that Lyons refused to pay it. The rule is plainly laid down in Cassady v. Trustees of Schools, 105 Ill. 560, that in all cases where a public officer appropriates and converts to his own use moneys which he holds in Ms official capacity and upon proper demand refuses to pay over the same, such officer and his sureties will be liable on his official bond for the amount of money thus appropriated, with interest thereon. Section 2 of the Interest Act specifically allows 5% per annum on all moneys due on bonds.

It is insisted that the court erred in retaining jurisdiction of the cause for the purpose of enforcing its decree. The decree which finds and settles the rights of the contestants is final and appealable, but the court always retains jurisdiction to enter such further orders or decrees to the end that complete justice- may be done between all the parties, necessary to carry into effect the original decree of the court. This power is inherent in a court of chancery and is also authorized by Par. 42, Chap. 22, Hurd’s E. S.

Appellants further contend that the amount retained by Lyons was out of the general taxes and would be distributed by tile county treasurer among various taxing bodies, and that at most the county could only recover its just share of it and that the county could not recover the whole fund, but that each taxing body would have to resort to a separate suit. We are of the opinion that the county had a right to the entire amount, and that the distribution thereof among the several taxing bodies is a matter which does not concern appellants.

The decree is therefore affirmed.

Affirmed.


text:
    Crawford Locomotive & Car Company, Appellee, v. Galesburg Malleable Castings Company, Appellant.
    Gen. No. 5589.
    1. Sales — what not waiver of right of inspection. Neither an inspection and approval of patterns for castings nor a waiver of the right of inspection at the place of manufacture is a waiver of the right of inspection at the place of delivery.
    2. Appeals and eeroes — when assignments waived. Assignments of error not argued are deemed to have been waived.
    Appeal from the Circuit Court of Knox county; the Hon. R. J. Geieb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Williams, Lawrence, Welsh & Green and F. 0. McFarland, for appellant.
    Lucey & Larkin and Hardy, Welsh & Hardy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In 1908 the Crawford Locomotive & Car Company of Streator, Illinois, appellee here, was engaged in the business of repairing and rebuilding railroad cars, in which process certain malleable iron castings were used. In June of that year after some preliminary negotiations, appellee placed with the Galesburg Malleable Castings Company, appellant here, an order for a large number of such malleable iron castings, which were to be used in the repair or re-building of certain cars of the Atchison, Topeka & Santa Fe Railway Company. By this order or contract, appellant was to begin delivery of the castings on December 10th, and to complete the delivery by December 30, in the same year. Appellant did not comply with its agreement with regard to the time when delivery was to commence and there was considerable correspondence between the parties, consisting mostly of urgent and repeated requests by appellee that delivery be hastened and as many promises by appellant that the castings would be ready for shipment in a short time. Appellant did make and deliver many of the castings named in the order and such were inspected and approved by the railroad company within the terms of the contract, but there were two different kinds of castings, commonly called by the parties “C. M. 67” and “C. M. 117” of which none had been manufactured when the time within which the contract was to be carried out had expired. A large number of such castings were made and delivered after such time had passed and, upon being inspected and tested by the railroad company, were found to be defective and were returned to appellant. In the meantime appellant had been paid in full by appellee for all castings made by it under the contract, including those which were found to be defective. The castings which were rejected were returned to appellant and appellee purchased castings elsewhere with which to complete its rebuilding contract, with the railroad company. Appellee then sought to induce appellant to return to it the money paid for the defective castings, and this appellant refused to do. Appellee thereupon brought this action against appellant and, upon a jury trial, had a verdict and a judgment for $1563.50 from which defendant below appeals. It is not argued here that the amount of the judgment is erroneous or excessive if appellee is entitled to recover.

A large number of errors are assigned by appellant but the only points argued here are that the railway company had either inspected and approved these castings, or that it had waived the right to inspection, and that appellee is bound by either action on the part of the railway company and cannot thereafter reject some of the castings and be reimbursed therefor. These were questions of fact, involving much correspondence and much oral testimony as to personal interviews and, after a careful examination of the entire record, we are of opinion that the jury were justified in finding that the railroad company had not inspected and approved those casting’s nor waived inspection prior to their condemnation and return by appellee. The evidence shows that the entire burden of procuring inspection of these castings rested upon appellant. At the same time that the original order was sent to appellant, appellee notified appellant that the material was subject to the inspection of the railway company in the usual manner. In reply thereto, appellant asked appellee if appellee wished to have submitted to it hard iron samples of the castings, or whether appellant should rely wholly upon the inspection of the railway company’s inspector. To this appellee replied that it did not desire any samples sent to it at all as the inspection was entirely in the hands of the railway company. Thereupon appellant wrote appellee: “We note what you say in regard to the inspection of our castings and will take this matter up with the Santa Fe people.” While it was customary for the railroad company to inspect the material at the place of manufacture, still it reserved the right to do so at the place to which it might be shipped if it wished, and it is not denied but what appellant had in its possession before any work was done on appellee’s order certain inspection certificates furnished by the railroad company wherein this right to inspect at destination was reserved. Appellant claims that one Beinha- It, an employee of the railroad company stationed at appellant’s plant, was placed there for the purpose of inspecting these castings and did so and approved them. From all the evidence we are of opinion that Beinhardt was not an inspector of castings and did not represent the railroad company for that purpose, but was located at appellee’s plant for the purpose of exercising a general supervision over its work of re-building cars for bis employer.

Appellant relies upon a letter of date December 2, 1908, from one Hodges, general purchasing agent of the railroad company, to appellant, in which occurs the following: “We have arranged matters so that Mr. Armstrong” (chief inspector of the company) “and one of our pattern makers from Topeka will visit your plant within the next week or so and go over the patterns thoroughly. As agreed last night, it will' not be necessary to hold up any shipments which you are making to the Crawford people,” and contends that this language must be construed to mean the waiving by the railroad company of the right to inspect the castings before shipment. We do not so consider it. At the time this letter was written none of the particular castings in question here had been made, nor were any made for at least thirty days thereafter, and we conclude that the jury were fully warranted in finding that this letter did not refer to such castings. But, if we give to this letter the meaning ascribed to it by appellant, still we cannot consider it as decisive of the point involved. An inspection and approval of the patterns by the railroad company cannot be construed as an approval of the castings made from such patterns, for the patterns might be correct in every particular and yet every casting made therefrom might be defective. Again, even if the railroad could be said to have waived the right to inspect these castings at the place of manufacture, that action could not be construed as an approval of the castings or as a waiver of the right to inspect them anywhere, for by its inspection specifications, the railroad, company expressly reserved the right to inspect material, if desired, at the place of destination.

Again, under the contract and the specifications of the railroad company, it was the duty of appellant to notify the railroad company whenever it had castings ready to ship and the railroad company then had the right to send an inspector to appellant’s establishment and inspect snch eastings before shipment, if desired. Late in December or early in Jannary appellant notified the railroad company that it was about to ship a car load of these castings and the railroad company caused them to be inspected before shipment. It does not appear that any such notice was given the railroad company thereafter until the following May, although repeated shipments were made by appellant to appellee during that period of time. The failure of appellant to offer the railroad company an opportunity to inspect each shipment of castings before it left the place of manufacture was one for which appellee cannot be held responsible.

The president of appellant has testified that the railroad company never waived inspection of material that was to be shipped to appellee. It can hardly be said that appellant has suffered by reason of any delay in inspection, for it is not claimed that the lapse of time caused the castings to deteriorate, and it is proven and not denied that the rejected castings were unfit for use. These castings were paid for by appellee before inspection and when inspection by the proper party had been made in accordance with the conditions attaching to the contract and the castings were found to be defective, appellee was entitled to have refunded to it the money it had expended for such defective materials.

Errors are assigned in connection with the rulings of a trial court on the admission of evidence and the giving or refusal of certain instructions, but as these points are not argued by appellant here, they must be considered as waived.

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

Affirmed.


text:
    Thomas J. Stout, Appellee, v. Albert C. Taylor, Appellant.
    Gen. No. 5594.
    1. Automobiles — when duty of driver to stop. When the driver of an automobile sees that a horse is frightened, he has no discretion, — it is his absolute duty to stop.
    2. Appeals and eeeoes — when rulings upon evidence not saved for review. If evidence received is complained of the compiaint will not be considered upon review in the absence of an objection having been interposed.
    3. Appeals and eeeoes — when rulings upon evidence not saved for review. If the evidence claimed to have been erroneously omitted is not abstracted or if set out in the brief the record page is not given the complaint will not be considered on review.
    4. Appeals and eeeoes — hoto motion to exclude should he made. If a motion to exclude evidence is made and a part of the evidence is competent the motion should be specific as to the incompetent part, otherwise it will not be considered.
    5. Evidence — when medical expert may predicate opinion upon subjective symptoms. Where a physician giving an opinion obtained subjective symptoms while treating the plaintiff for his injuries such opinion is competent.
    6. Instructions — when not erroneous in failing to limit jury to actual pecuniary damages. An instruction is not wrong which tells the jury that in making an estimate of damages 'they shall exercise their judgment upon the facts in proof by connecting them with their own knowledge and experience. where the reference is to their general knowledge “which they are supposed to possess in common with the generality of mankind.”
    7. Verdicts' — when not excessive. Held, in an action on the case for personal injuries, that a verdict for $250 was not excessive where the plaintiff received injuries to his back and ankle and used crutches for three months.
    Action in ease for personal injuries. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Sturtz & Ewan, for appellant.
    Charles E. Mulligan, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On August 4, 1910, appellee was riding with one Berry in a buggy drawn by one horse, going west on the highway from Neoponset to Kewanee. About a mile east of Kewanee there was a railroad track crossing the highway at an acute angle. On the north side of the highway, east of the crossing, there was. a ditch about eight feet deep. As they were approaching this crossing an automobile driven by appellant was coming toward them. When it was about 15 feet west of the crossing Berry’s rig had stopped about 20 feet east of the crossing on the north side of the highway near the ditch. As the automobile passed over the crossing the top was jerked up. The horse became frightened and shied violently, went into the ditch, threw appellee on the ground and dragged the buggy over his body. Appellant did not stop, but increased his speed and passed on. Appellee brought this suit in the City Court of Kewanee to recover for the injuries sustained. The case was submitted to the jury on the first and third counts of an amended declaration. The first count charged general negligence in running and managing the automobile. The third count charged that it was driven at a great rate of speed and that the horse became frightened as the automobile approached and that appellant did not stop as required by Section 12 of the “Motor Vehicle Law”. A plea of not guilty was interposed. Appellee had a verdict and a judgment for $250 from which this appeal is prosecuted.

It is contended that appellee was guilty of contributory negligence which should bar Ms recovery. That was a question of fact upon which there was ample evidence to support the conclusion of the jury that he was not negligent.

As to the rate of speed appellant was driving the automobile at the time it approached and passed the buggy and the manner in which he was managing it at that time, the evidence is conflicting, but it conclusively shows that appellant knew that the horse was frightened and that he did not stop. In Ward v. Meredith, 220 Ill. 66, the court, in interpreting the language of section 2 of the act of 1903 regulating the speed of automobiles, which is the same as used in section 12 of the “Motor Vehicle Law”, said: “ ‘Whenever it shall appear that any horse,’ etc. is about to become frightened, means whenever it might, by the exercise of reasonable diligence, appear to the driver of the automobile that the horse was about to become frightened it would be his duty to stop, ’ ’ citing as authority Christy v. Elliott, 216 Ill. 31. Under these authorities; appellant had no discretion as to what he should do. It was his duty to stop his automobile when he saw that the horse was frightened.

Appellant complains that the court permitted proof that he did not stop after the accident, on the ground that such evidence made a cause of action not set up in the declaration. The abstract does not show that such evidence was objected to. Had it been, there might be some force in the contention, if appellee was proceeding under the common law count alone, but the ease is based upon the statutory charge that appellant failed to stop. If appellee was precluded from showing that the automobile did not stop he could not prove his case.

Counsel argue that the court erred in permitting appellee to testify that he had a wife and three children. This evidence is not set out in the abstract. Counsel reply that it is set out in their brief and that that ought to be sufficient. The brief does not state on what page of the record such evidence can be found. Courts do not search records to find some ground for reversal not referred to in the abstract. Rule 16 of this court, 137 Ill. App. 625, requires the abstract to show everything relied upon for a reversal.

The abstract does show that a motion was made at the close of appellee’s evidence to exclude several items of testimony, one of which was the alleged testimony concerning appellee’s family. This motion was denied and it is urged that the ruling was erroneous. Some of the evidence sought to be excluded was clearly competent. If this motion had been granted the jury would not be able to know what parts were excluded. It should have pointed out the particular parts of the evidence sought to be excluded. The court properly denied the motion. Coburn v. Moline, East Moline & Watertown Ry. Co., 149 Ill. App. 132.

It is urged that it was error to permit a physician called by appellee to give an opinion based on subjective symptoms. The physician testified that he thought his back was sprained, but at no time that he examined him were there any outward signs; that when he pressed certain regions appellee said it was tender. This statement was made to the physician while treating appellee for the injuries received in the accident, and not in an examination made for the purpose of testifying. Under such circumstances, the testimony of the physician was competent. Collins v. Waters, 54 Ill. 485; West Chicago St. R. R. Co. v. Carr, 170 Ill. 478; Chicago City Ry. Co. v. Bundy, 210 Ill. 39. Moreover, if the court erred in ruling on such testimony, appellant could not avail of the error here for the reason that the abstract does not show an objection to its introduction.

It is urged that the 29th instruction given on behalf of appellee was erroneous. The instruction thus complained of is as follows:

“If from the evidence in the case and under the instructions of the court, the jury shall find the issue for the plaintiff, and that the plaintiff has sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but tbe jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the business affairs of life.”

It is said that the instruction was wrong, because it did not limit the jury to the actual pecuniary damages established by the evidence, but left them free to give such sum as in their opinion he might be entitled to recover.

The instruction is not, in our opinion, objectionable in the respect here indicated. An instruction is not wrong which tells the jury that, in making an estimate of damages, they shall exercise their judgment upon the facts in proof by connecting them with their own knowledge and experience, where the reference is to their general knowledge, “which they are supposed to possess in common with the generality of mankind.” They are authorized to test the truth and weigh the evidence by their knowledge and judgment derived from experience, observation and reflection. City of Chicago v. Major, 18 Ill. 349; Ottawa Gas Light and Coke Co. v. Graham, 28 Ill. 73; Springfield Ry. Co. v. Hoeffner, 175 Ill. 634. Where an instruction, in an action for damages for a personal injury, authorized the jury to award such reasonable sum as would compensate the plaintiff for the impairment of his power to earn money in the future, and such reasonable sum as would compensate him for the pain and anguish suffered by reason of his injury, it was held that these elements were, from necessity, left to the sound discretion of the jury. B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535; I. C. R. R. Co. v. Cole, 165 Ill. 334; West Chicago St. R. R. Co. v. Carr, supra. Damages for such injuries, as are named in this instruction, must necessarily be left to the sound discretion and judgment of the jury, basing their exercise of such discretion and judgment upon the evidence in the case, and bringing to bear on such evidence their general know!edge and experience as business men. Springfield Ry. Co. v. Hoeffner, supra.

It is also urged that the judgment is excessive. Appellee testified that he sustained injuries to his back and ankle and used crutches for three months; that before the accident he earned from $1.50 to $2.00 per day, but had not been able to work much since on account of the pain in his back. The proof shows that he was at some expense to be treated and a physician testified that his back would never be as strong again. This evidence, we think, fully justifies the amount of the judgment.

The judgment is clearly right upon the merits and there being no prejudicial error in the record, it is affirmed.

Affirmed.


text:
    John Ryan, Appellee, v. John McGirr, Appellant.
    Gen. No. 5604.
    1. Pleading — effect of failure to file replication. When the parties proceed to trial without a written issue being made upon the pleas the formal written issue is considered as waived, or an oral issue is considered as joined, and the irregularity is cured by verdict.
    2. Instbuctions — when refusal of correct will not reverse. The refusal of a correct instruction asked by the defendant as to the burden of proof will not reverse where the evidence of the plaintiff was not controverted by the defendant.
    Judgment by confession. Appeal from the Circuit Court of De Kalb county; the Hon. Duane J. Cabnes, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    John A. Dowd all, J. E. Matteson and H. A. Jones, for appellant.

      Cliffe & Cliffe, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On September 7, 1910, John Ryan obtained a judgment by confession against Timothy Duggan and John McGirr on a note for $500 with interest at 6% dated July 10, 1907, payable one year after date. Thereafter the judgment was opened with leave to plead. Duggan filed pleas of the general issue and discharge in bankruptcy. There was a replication to the bankruptcy plea. McGirr filed a plea of the general issue and a special plea setting up fraud and circumvention in obtaining his signature, in that it was represented to him that if he would sign the note, Duggan’s wife would also sign the same as co-surety, and that the note should not be delivered to or received by Ryan unless she signed it. This plea was verified. No replication was filed thereto. At the close of the evidence the suit was dismissed as to Duggan. There was a verdict and a judgment of $502.50 for Ryan, and Mc-Girr prosecutes this appeal.

It is contended that the absence of a replication to the plea of fraud and circumvention amounted to a. confession of the facts therein stated and Ryan was not entitled to judgment as against McGirr under the plea of general issue; that the court erred in ruling on the evidence and the instructions.

The case was tried precisely the same as if a replication had been filed to the plea and issue formally joined. McGirr made no objection to proceeding to trial as the pleadings were. He might have taken a rule on Ryan to reply to the plea or prayed judgment for want of replication. This he did not do. It is now the settled doctrine in this state that when the parties proceed to trial without a written issue being made upon the pleas the formal written issue is considered as waived, or an oral issue is considered as joined, and the irregularity is cured by verdict. Ross v. Reddick, 1 Scam. 73; Barnett v. Graff, 52 Ill. 170; Strohm v. Hayes, 70 Ill. 41; People v. Lindblom, 215 Ill. 58; Wetz v. Greffe, 71 Ill. App. 313; Supreme Court of Honor v. Barker, 96 Ill. App. 490; Stitzel v. Franks, 126 Ill. App. 260. Therefore the court properly treated the case as if the special plea had been traversed and issue joined. On that issue the burden was on McGirr. The note was introduced in evidence, and the proof of the fact that McGirr signed it made a case for Byan under the declaration and the plea of the general issue, and McGirr introduced no evidence to defeat that contention except the evidence in support of his special plea.

The evidence shows that Duggan applied to Byan for a loan; that Byan said he could have the money if he would furnish him a bankable signer and that Mc-Girr would do; that Byan left the money at a bank and Duggan presented the note signed by himself and Mc-Girr and received the money. Byan testified that he never had any talk with McGirr about the note and that he only spoke to Duggan about it and that Duggan’s wife was not mentioned. Duggan testified that he told Byan he thought he could get McGirr and that nothing was said about another signer. McGirr testified that a week or two before he signed the note Byan told him that Duggan wanted to borrow some money and asked him if he would sign a note if Duggan’s wife would sign it and he said he would; that later Duggan told him his wife would sign the note and he signed it and handed it to Duggan. McGirr made two interest payments of $50 each on the note. There was sufficient space between the signatures of Duggan and McGirr for another signature. McGirr was not permitted to prove what he thought and what others thought was the reason why there was a space between the two signatures. All that McGirr was entitled to prove was what, if anything, was said about that. He was not permitted to prove that Duggan’s wife had property. If he signed on the condition that Duggan’s wife would sign before the note was delivered and if Eyan knew that condition when he received the note, then the plea would be sustained, regardless of the wealth or poverty of Duggan’s wife. So, likewise, if there was no such condition the note would be valid, regardless of her wealth or poverty. There was some evidence tending to show that Duggan made some kind of a promise to pay the note after he went into bankruptcy and perhaps after he was discharged. That promise was so indefinite and uncertain that it had no effect upon the rights of the parties and if it amounted to an extension of the time of payment of the note, which we are of opinion it did not, still McGirr could not avail thereof in the absence of a plea alleging an extension of time to the principal debtor without the knowledge and consent of the surety. There being no such plea, no question arises on this record as to whether that would release the surety. McGirr was allowed to prove everything that was said relating to the issues. There was a clear preponderance of the evidence against the truth of McGirr’s plea of fraud and circumvention and the jury were warranted in finding that there was no promise made to McGirr that Duggan’s wife would sign the note and that he did not sign it on condition that she also would sign it. We find no error in the rulings of the court on the evidence.

For appellee the court instructed the jury that the principal controverted question was whether there was an agreement between McGirr and Eyan before the signing of the note that Duggan’s wife should also sign it and that if they believed from the evidence there was such an agreement, Eyan could not recover and their verdict should be for McGirr, and if they believed from the evidence there was not such an agreement or if they believed that the evidence was equally balanced as to whether or not there was such an agreement, then their verdict should be for Eyan.

The court refused an instruction requested by McG-irr which, stated that the burden of proof was on By an to establish the case by a preponderance of the evidence. This instruction stated the law correctly and might well have been given, but in as much as McG-irr offered no evidence to defeat the note except the evidence in support of his special plea upon which he had the burden of proof, and in as much as the jury were properly and accurately instructed in all other respects, the refusal of the instruction did not harm him. ¥e are not called upon to decide, and do not decide, whether the special plea presented a valid defense.

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

Affirmed.


text:
    Amelia C. Schubert, Executrix, Appellant, v. Philip C. Schubert et al., Appellees.
    Gen. No. 5607.
    1. Appeals and errors — when motion to strike certified copy of pleas properly denied. Held, that it was not error for the court to refuse to strike certified copies of pleas which had been duly filed in the Probate Court and that a denial of such motion was the equivalent of approving the filing of such certified copies which filing had been without leave previously granted.
    2. Evidence — what competent upon genuineness of note. Where the genuineness of a note filed as a claim against a deceased maker is in question the financial condition of the alleged lender at the time of the alleged making of the note for money borrowed as well as the financial condition of the deceased maker together with other circumstances are competent to be shown.
    3. Evidence — how impeachment cannot he made. Impeachment of a witness cannot be predicated upon an immaterial matter.
    4. Evidence — when will competent where question of genuineness of note of testator involved. Held, that the will of the testator was competent where the alleged note was filed as a claim to show the hostility of such deceased to the alleged payee, and that comparison of the signature to the will with the alleged signature to the note was proper.
    5. Instructions — when singling out evidence of expert witnesses not error. If neither side could gain an advantage the singling out of expert witnesses in the instructions of the court will not effect a reversal.
    6. Negotiable instruments — what material alteration. So to change the date of a note as to bring it within the Statute of Limitations is a material alteration.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    T. W. Shields and T. F. Donovan, for appellant.
    Cooper & Hobbie, W. H. Savary and Edgar L. Masters, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

On March 7, 1907, John J. Schubert filed a claim against the estate of his mother, Wilhelmina Schubert, deceased, in the County Court of Kankakee county, based upon a promissory note dated March 4, 1897, for the payment of- $3,000 five days after date, with interest at 7% per annum. No affidavit was made to this claim by John J. Schubert until April 25, 1909, and shprtly thereafter he died. Amelia C. Schubert the appellant, was appointed executrix of the estate of John J. Schubert, and the hearing in the County Court on said claim proceeded in her name as such executrix. Upon a trial in the County Court the claim was allowed for the full amount with interest. The executors of the estate of Wilhelmina Schubert appealed therefrom to the Circuit Court, and, upon a trial in that court, the jury returned a verdict in favor of said estate and against the claimant. A motion for a new trial was overruled, judgment was entered upon the verdict, and claimant below appeals to this court. Appellant points out a large number of alleged errors which are relied upon to secure a reversal of the judgment of the lower court, most of these being with regard to rulings of the lower court as to the admission of evidence.

Three defenses were made to the claim of John J. Schubert; first, that if the note was ever in fact made, it was made in 1891, and that the figure “1” in said note has been changed to a “7” constituting a material alteration and rendering the note void; second, that, if the note was ever in fact made, it was made in 1891, and any claim based upon it was barred by the statute of limitations; and third, that the signature to the note was not that of Wilhelmina Schubert, but was a forgery. In the County Court appellees filed a plea, denying the execution of the note, and supported it by their affidavit, but in the transmission of the papers in the case on appeal, neither the plea nor the affidavit nor a certified copy thereof, was sent up to the Circuit Court. On the day when the trial in the Circuit Court began appellees procured a certified copy of said plea and affidavit from the county clerk and had it filed in the Circuit Court, without first obtaining leave of court. After appellees had begun the introduction of their proof, appellant moved to strike the additional transcript from the files, and her counsel asserted that they had not previously discovered it in the files. The motion was denied and this action is assigned for error. The question whether the or-, iginal plea and affidavit, instead of a certified copy thereof should have been transmitted by the county clerk to the Circuit Court, was not raised by the motion, but we see no reason why it was not proper to file a certified copy thereof. Appellant must have known that such plea and affidavit had been filed in the County Court, and that it had been omitted from the transcript by mistake, and must have anticipated that when its absence from the record was discovered, leave to file the original or a certified copy would be asked and allowed. The denial of the motion to strike the certified copy from the files was equivalent to granting leave to file it, or was an approval of the act of appellees in filing it. If appellant was taken by surprise, she should have asked a continuance. It is obvious, from the evidence that was introduced, that appellant was fully prepared to go into the question of the genuineness of the signature to this note, that being the principal question litigated, and that appellant was not harmed by the court’s ruling on its motion.

The court below permitted the introduction of a considerable amount of evidence in relation to the financial condition of both Wilhelmina and John J. Schubert about the year 1897, which showed in brief, that John J. Schubert had no such deposit at that time in any Kankakee Bank as would have enabled him to loan the sum of $3,000; that in 1897 he had borrowed $1,000 from another party, at the same time telling the party making the loan that he was short of money, that in 1889 he had given a mortgage to his father to secure the payment of a series of notes evidencing an indebtedness for a large sum of. money, and that said mortgage was not released until about two years after the date of this alleged note of Wilhelmina Schubert; that Wilhelmina Schubert was very economical and not in the habit of incurring debts'; that she lived very simply and was receiving such an income from her husband’s estate as would not render it necessary for her to borrow a large sum of money; and that she and her son John were on extremely bad terms. Appellant objected to the introduction in evidence of the bank book of John S. Schubert, by which it was shown that his balance at a certain bank in Kankakee during the few months preceding the alleged date of this note did not amount at any time to more than a few hundred dollars; to the admission in evidence of his tax schedule for the year 1907, in which this note was not listed; to the evidence of officers of certain other hanks in Kankakee that Schubert did hot have an account with those establishments during the months preceding the date of the note; to the evidence of the loan to John J. Schubert of $1,000 in 1897; to the evidence in relation to the habits of Wilhelmina Schubert and her financial condition; to the admission in evidence of the mortgage from John J. Schubert to his father and of the release thereof; and contends that all this evidence was incompetent. There was no evidence that John J. Schubert had ever pressed his mother to pay this note, which was due only five days after its date. The principal litigated question in this cause was whether this was a genuine note of Wilhelmina Schubert or not. If the financial condition of John J. Schubert in 1897 was such that he would not be likely to have any such sum of money to loan; if his financial condition at that time and after was such that, if any such money was due him, he would be likely to- insist upon and compel payment; if his mother had an abundance of money for her simple needs and was careful and prudent in her expenditures; and if she and her son were on bad terms and seldom met or spoke; all this would tend te show that it was improbable that she ever borrowed such a sum of money from her son. Under the authority of Thorp v. Goewey, 85 Ill. 611; Sager v. St. John, 109 Ill. App. 358; Gregory v. Est. of Gregory, 129 Ill. App. 96, and cases there cited, we are of the opinion that this evidence of the financial condition of John J. Schubert and his mother was properly admitted.

Appellant called Miss Josephine Kohl as a witness, who testified to her knowledge of the signature of Mrs. Schubert, and that in her opinion, the signature to the note in question was the genuine signature of Mrs. Schubert. On cross-examination she was shown a paper, the will of Mrs. Schubert, and after examining it, testified that the signature to the will was not the genuine signature of Mrs. Schubert and that the signature to the note was genuine. No objection was made at that time to this testimony on the ground of lack of authority to permit the comparison, or for any other reason. After appellant’s case in chief had been closed, appellees offered and the court admitted in evidence, the will of Mrs. Schubert, the order of the County Court admitting it to probate, and the inventory in- said estate, the object of the offer being stated to be the impeachment of Miss Kohl. Objections to this evidence were made and overruled and exceptions were duly preserved. Thereafter the will was used by both parties for the purpose of having their expert witnesses compare the signature to the will with the signature to the note, and the question whether or not the ruling admitting this will in evidence was correct we regard as the most serious question in the case.

We recognize it as the rule laid down in a large number of decisions by the Supreme Court, collected by us in Stitzel v. Miller, 157 Ill. App. 390, 399, that the genuineness or falsity of a handwriting or signature cannot be proved by comparison with other admittedly genuine handwriting or signatures, unless said other handwriting or signatures are in evidence in the case for some other legitimate purpose, or at least among, the files of the case and a part of the record. ' Though that judgment was reversed in Stitzel v. Miller, 250 Ill. 72, yet the rule above stated was recognized and sustained. Appellees offer many reasons in support of the introduction of the will, among them being that it was competent for the purpose of impeaching Miss Kohl; that the will was a part of the files in this case and therefore could be used for the purpose of comparison, and that it was admissible for the purpose of showing the relations between the parties .and a motive on the part of John J. Schubert for the presentation of the claim. We are of opinion that the will was not competent for the purpose of impeaching Miss Kohl. The question whether this was the genuine signature of Mrs. Schubert to the will was immaterial and, if objection had been made, could not have been raised, and Miss Kohl could not be impeached upon immaterial matter. We are also of opinion that the will was not among the files in this cause. The files in this case properly consisted of the claim and affidavit of claim filed in the County Court, the record made there on the trial and allowances of the claim and any motions and orders which may have been made and papers which may have been there filed with regard to it. We do not think it can be said that all of the files of the County Court in connection with the admission of this will to probate and the administration of the estate are brought into this case of the claim against it, so as to make them competent under the rule permitting the use of the files. Certainly the will, the order admitting it to probate and the various papers relative to the administration of the estate could not properly be transmitted to the Circuit Court by reason of the appeal of this one claim.

We conclude however, that the will and the order admitting it to probate were properly admitted in evidence to show the hostility of the decedent to her son at the time of the execution of the will, and to show a reason for his determination to bring a claim against the estate and thereby reimburse himself in part for what he had lost by reason of being cut off in his mother’s will. This was supplemented by evidence of a conversation by him afterwards with regard to the action of his mother in giving the bulk of her estate to his brother and sister, in which he stated: “They got their money, and I only got a dollar, and I’ll get the rest”, and the evidence of another conversation in which he used bitter language indicating an intention to nse this note to redress the wrong done him by the will. Although appellees did not put their offer on that ground, we conclude that the will was competent evidence on the issues in this case. Being therefore competent and in evidence, each side could use it for any legitimate inference they could draw from it, and their witnesses then had a right to compare the signature of the note with the signature of the will. Craig v. Trotter, 252 Ill. 228, and cases there cited. The order admitting the will to probate found that Mrs. Schubert signed her name thereto. The evidence o'f appellant’s expert .witness shows that appellant had prepared to use this will on the trial for the purpose of demonstrating the genuineness of the signature to the note, and that appellant’s expert had examined the will and note and compared them with each other for that purpose more than eight months before this trial. The inventory of the estate of Wilhehnina Schubert was accompanied by the order of the County Court approving'it, which wás prima facie binding upon John J. Schubert, an heir at law and legatee, and therefore upon his executrix. We conclude that, on the ground previously stated, appellees had a right to prove the financial condition of Mrs. Schubert to the date of her death, and that was all the inventory proved. We are unable to see that appellant was harmed, as there was no dispute but what the inventory correctly showed the condition of the estate. The will and the note both being properly in evidence, we are of opinion that it was proper to permit enlarged photographic copies of these signatures to be made and introduced in evidence to illu&trate the theories of the expert witnesses who testified to the similarity of or the difference in these signatures and as to whether or not any of the figures in the note had been altered.

Instruction No. 19, given at appellees’ request, told the jury that if they believed from the evidence that the note in question had actually been executed in 1891 and that no new contract was ever entered into thereafter between the payee and Mrs. Schubert for the payment thereof, then the note was barred by the statute of limitations and they should find for the appellees. Appellant complains of the giving of this instruction, on the ground that it failed to inform the jury that the note would not have been barred by the statute of limitations, even though executed in 1891, if a payment of interest had been made thereon or if it had been thereafter recognized or acknowledged as an existing indebtedness by Mrs. Schubert in her life time. The objections of appellant to this instruction might be well taken if there had been any evidence that any interest had been paid on the note or that Mrs. Schubert had acknowledged it as an existing indebtedness and had promised to pay it at some later date, but there was no such evidence and we therefore consider the instruction correct. Complaint is made by appellant of instruction No. 20 given at the request of appellees, on the ground that it singles out and gives prominence to the evidence of expert witnesses, and that it directs the jury to give weight to the opinions of such experts, regardless of whether or not such opinions are based upon facts found to be true from the evidence. Each side offered one expert witness, and neither side, therefore, would secure any advantage from any supposed singling out of that kind of evidence. With regard to the second point made against this instruction, we need only quote from the instruction itself, as follows: “Expert testimony is the opinion of such a witness based upon the facts in the case as shown by the evidence.” We do not consider the objection to this instruction well taken. Appellant objects to instruction No. 21 on the ground that it fails to take into consideration the question whether or not the change from the figure “1” to the figure “7” if made, was a material alteration or not, and also that it did not submit to the jury the question whether or not, if there had been such an alteration in the date of the note, it had been made by the holder or with his knowledge or consent. "We do not consider that these objections are well taken. If the date of this note had been changed from 1891 which would have made it an outlawed note long before Mrs. Schubert died, in 1897, so as to bring it within the Statute of Limitations, that would be a material alteration, and that question was to be decided by the court and not by the jury. Milliken v. Marlin, 66 Ill. 13; Donnell Mfg. Co. v. Jones, 49 Ill. App. 327. The court was not required to submit to the jury the question whether or not said alteration, if there was one, was made by the holder or with his knowledge or consent, as there was no evidence that the note had ever been in the custody of any one but John J. Schubert.

Appellant assigned for error the failure of the trial court to grant a new trial on the ground of newly discovered evidence, but as that assignment has not been argued, it must be considered as waived.

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

Affirmed.