text:
    Cora Cope, Appellant, v. Charles Oliver et al., Appellees.

      Verdicts—when not disturbed. A verdict will not be set aside on review if substantial justice appears to have been done.
    Replevin. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    L. J. Owen and Welty, Sterling & Whitmore, for appellant.
    Earl D. Riddle and De Mange, Gillespie & De Mange, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This was a suit in replevin by the plaintiff, Cora Cope, against the defendants, Charles Oliver and Cornelia Oliver, for the recovery of the possession of a piano and a number of various household utensils of trifling value. The jury returned a verdict in the following words: “We, the jury find the issues for the defendant.” The court overruled a motion by the plaintiff for a new trial, and entered judgment on the verdict in favor of the defendants and that they have return of the piano specified in the affidavit for replevin. At the trial before the justice of the peace from whence the cause came by appeal, the defendant, Charles Oliver, disclaimed any interest in the property replevied except the piano, and the only issue tried in the Circuit Court was as to the right of ownership and possession of the piano.

The evidence shows that Mrs. Cope, the plaintiff, was the mother-in-law of defendant, Charles Oliver, and that her daughter, Nellie Cope Oliver, the wife of defendant Charles Oliver, died intestate, without issue, prior to the commencement of this suit, leaving him surviving. Defendant Oliver claimed that the piano was presented to his wife Nellie by appellant, her mother; that the same "#as a part of the estate of his wife, and that upon her death he, as surviving husband, became the owner thereof under the statute; while the plaintiff insisted that the piano was purchased by her before the marriage of Nellie, for the use of said daughter and herself and that while the daughter had possession of and used the same, she, the plaintiff, had never parted with the title thereto. It further appears from the evidence that for several years prior to the death of Nellie, the plaintiff went to Missouri to reside, while her husband continued his residence at their former home in Leroy; that after her marriage Nellie and her husband established a home in another part of the city, and from time to time took from the old home various articles of furniture; that at the time of her death Nellie had at her home, in her possession, the piano in controversy. The evidence as to ownership was conflicting. A number of witnesses called by the defendant testified as to declarations of the plaintiff and her husband which tended to show that the piano was presented by them to Nellie when she graduated at the high school in Leroy. The plaintiff and her husband both denied such declarations, or that the plaintiff ever parted with the title to the piano. Under this state of the proof we are unable to say that the finding of the jury that the defendant Charles Oliver was the owner and entitled to the possession of the piano at the time of the commencement of this suit, was so palpably against the weight of the evidence as to require a reversal of the judgment.

We find no substantial error in the rulings of the court upon the evidence or instructions.

It is contended that the verdict of the jury was informal and insufficient in that it contained a general finding for the defendants without designating in favor of which of them the issues were so found, and relates to all the property involved in the suit, some of which was admitted on the trial to belong to the plaintiff; and further that the trial court erred in awarding the return of the piano to both defendants and in awarding costs against the plaintiff. The errors urged are largely technical, and do not affect the real merits of the case.

We are convinced that substantial justice was done by the judgment of the court, and the same will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    J. C. Utter, Appellee, v. Merkle-Wiley Broom Company, Appellant.

      Verdicts—when not disturbed. A verdict will not foe set aside whenever there is a contrariety of evidence and the facts and circumstances by fair and reasonable intendment will authorize a verdict notwithstanding it may appear to foe against the strength and weight of the testimony.
    Assumpsit. Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Shepherd & Trogdon and Henry S. Tanner, for appellant.
    Frank T. O’Hair, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellee against appellant, a corporation engaged in the manufacture of brooms at Paris, Illinois, for the recovery of a balance of salary claimed to be due him for services as a traveling salesman. A trial by jury in the Circuit Court resulted in a judgment in his favor for $600.

At the time of the institution of the suit, appellee, had been in the employ of appellant for ten or eleven years, soliciting orders in several of the eastern states. It had been his practice to travel in each year from the first of February until some time in May, and from September until December. The evidence shows that at the beginning of the year 1908, appellee asked that he be allowed to work seven and a half months, and allowed a vacation of four and a half months during the hot weather, for the sum of $1,500 for the year, and that such agreement was construed by the parties to mean $200 a month for the months he actually traveled. At the beginning of the year 1909, he entered into a new contract with appellant, as to the terms of which the parties are in controversy. He testified that the president of the company informed him at that time that they could not pay him as much as they had the year before, unless he traveled more months, and that the company would pay him but $150 per month during the ensuing year, and that he accepted the proposition. After the making of the latter contract, appellee traveled during the months of February, March and April, 1909, until the first of May, when he was called home by the president of appellant. During the months of June; July and August, he testified that he remained in Paris, but called frequently at the office of appellant, dictated a number of letters to his customers, examined the orders that came from his territory, and that during such time all orders received from his customers were credited up to him by the bookkeeper. The latter part of August he again took the road and traveled until the latter part of December, then returned to the factory, where he remained during the month of January, 1910, performing such services as were usual for traveling men in that line of business at that period of the year. He then asked that he be' credited with salary for the summer months at the rate of $150 per month, and upon the refusal of such request left appellant’s employ. Appellee’s contention is that he was employed by the year at $150 per month; that under the contract he was entitled to such salary whether he traveled or not, while appellant claims that he was employed to work for a salary at $150 a month, such salary to be paid only for the months he actually traveled.

The only ground for reversal argued is that the verdict was clearly and manifestly against the weight of the evidence. We have carefully read the record, and while we think the evidence seems to preponderate in favor of the appellant, we are unable to say that the verdict is so clearly and manifestly contrary to the evidence as to make it our duty to disturb the finding of the jury, who were the sole judges of the credibility of the witnesses and the weight to be given to their testimony. Applying the well-established rule 'that a verdict will not be set aside whenever there is a contrariety of evidence and the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict, notwithstanding it may appear to be against the strength and weight of the testimony (I. C. R. Co. v. Gillis, 68 Ill. 317; Lourance v. Goodwin, 170 Ill. 390; C. C. Ry. Co. v. McClain, 211 Ill. 589), it becomes our duty to affirm the judgment of the Circuit Court.

Affirmed.


text:
    Isaac A. Buckingham et al., Appellees, v. Harriet E. Penney, Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on review if substantial justice appears to have been done.
    Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    L. O. Williams, for appellant.
    Lemon & Lemon, for appellee; Buckingham & Gray, of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action by appellees for the recovery of attorneys’ fees for services claimed to have been rendered for appellant by them. Upon a trial by jury, judgment was rendered in favor of the plaintiffs for $553.67, included in which is the sum of $5 costs paid by appellees for the use of appellant, about which there is no controversy.

The evidence discloses that in an action for malicious prosecution instituted by appellant against one Johnson, she recovered judgment for $2,500, from which the defendant prosecuted an appeal to this court. Penney v. Johnston, 142 Ill. App. 634. Upon the trial of the latter case in the Circuit Court, appellant was represented by appellees, who reside at Decatur, Messrs. Ingham and Puller of Clinton, and Hon. J. C. McBride of Taylorville, all of whom were paid in full for such services. The evidence adduced by appellees tends to show that thereafter William Penney, the son of appellant, who represented her in that and other business transactions, employed appellees to prepare a brief and argument and argue the cause orally in her behalf in this court, for which services they were to receive the sum of $500, and further, that they performed such services in a manner satisfactory to appellant. Such evidence further shows that thereafter William Penney verbally and by several letters promised appellees to pay them said amount, and that he at no time ever claimed that the same was not due to them. Appellees. also proved that the usual and customary fee charged for similar services in Macon county was at least the sum claimed by them.

The evidence introduced on behalf of appellant tended to show that an agreement was entered into between appellant and the other attorneys who had represented her in the Circuit Court, that they should jointly continue to do so in this court, and that they were to receive jointly for their services the sum of $500. It is therefore contended by her counsel that because of the failure to join such other attorneys as parties plaintiff, no recovery can be had in the present suit. Although the jury was not unwarranted in finding the terms to have been as claimed by appellees, we do not think it necessary to determine the question. It is not controverted that -appellees performed all necessary services in this court in a satisfactory manner and without any assistance whatever from the other attorneys in question. It does not appear and is not claimed that either of them ever tendered their services, nor that appellant was injured by or ever complained of their non-participation, nor that her interests were not as well cared for by appellees as though all had joined in presenting her case. The amount of the verdict was not only the usual and customary fees for such services, but was clearly reasonable.

While the rulings of the court upon several of the instructions were technically inaccurate, we are satisfied from the whole record that substantial justice has been done between the parties.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.


text:
    S. W. Swisher, Defendant in Error, v. The Inside Grocery & Market Company, Plaintiff in Error.
    1. Sales—when title to personal property passes. The title to personal property passes by the delivery of possession.
    2. Statute of Frauds—when promise within. A promise by a corporation to pay the debt .of another is within the Statute of Frauds unless in writing.
    3. Contracts—what essential to novation. A novation is not created unless the old contract is extinguished.
    Error to the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.

      Wheeler, Silber & Isaacs and William L. Cundiff, for plaintiff in error; Frederick D. Silber, of counsel.
    Lindley, Penwell & Lindley, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Upon a trial of this cause before the court, the plaintiff recovered judgment against the defendant for the sum of $1,800 and costs. To reverse such judgment this writ of error is prosecuted by the defendant.

The first count of the declaration alleges that the plaintiff was, on July 14, 1909, possessed of the legal title to certain merchandise located in' Danville, and known as the “Carter & James stock;” that the plaintiff had the legal title to the same as. security for $2,000, being the balance due him from one Jack-man on account of the purchase price of said merchandise ; that the defendant corporation was desirous of purchasing said merchandise, and proposed that if the plaintiff would convey the same to Jackman, and Jackman would deliver it to the defendant, then the defendant would assume and pay to the plaintiff the indebtedness aforesaid; that the plaintiff did convey said merchandise to said defendant by bill of sale; that Jackman likewise did deliver said merchandise to defendant, all of which was done in reliance upon and in accordance with said promises; that the defendant then and there received said merchandise and has remained in possession thereof and become liable to pay to the plaintiff the said sum of $2,000 and interest.

The second count alleges that Jackman claimed to be the owner of the merchandise, subject to the lien of the plaintiff; that Jackman was indebted to the defendant; that the defendant proposed to Jackman that if he would deliver said merchandise to said defendant and procure the legal title in defendant, then defendant would cancel the indebtedness of Jackman and assume and pay the sums due from Jackman on account of the purchase of the merchandise, and that Jackman accepted said proposal and did deliver the merchandise, and executed a bill of sale therefor. The third count alleges that Jackman was indebted to the defendant corporation in the sum of $5,000 for shares of the capital stock subscribed by him, and that at a regularly called meeting of the defendant there was legally adopted the resolution “Exhibit B”; that said merchandise therein mentioned is the same described as belonging to the plaintiff; that the plaintiff, relying’ upon the promises in said resolution contained, did execute and deliver to the defendant a bill of sale to said merchandise, and Jackman delivered the merchandise to the defendant; that the defendant received and kept the merchandise and the bill of sale, by means whereof it became liable to pay to the plaintiff said sum of money. The fourth count alleges that the plaintiff executed and delivered to the defendant a bill of sale, whereby in consideration of $2,000 to be paid to him by the defendant, he sold and delivered unto the party of the second part the stock of merchandise in question; that the defendant accepted and retained said instrument and merchandise, and became liable to pay the plaintiff the sum of $2,000. “Exhibit B ’ ’ referred to in the third count, is as follows:

“Besolved, that whereas, W. Y. Jackman and W. S. Grimes are each possessed of a stock of groceries, fixtures, merchandise and appurtenances, each of which has been carefully appraised, and each of which is worth $6,000, and whereas said stock and property are desired by the corporation; and whereas said owners are willing to- sell same to this corporation at the appraised value and receive therefor respective credits upon their stock subscriptions; now, therefore, be it

“Besolved, 1. That the corporation purchase from W. Y. Jackman all merchandise, fixtures and appurtenances included in' what is known as the Carter & James stock and assume all outstanding accounts due thereon, at the sum of $5,000; and that the corporation pay therefor by giving credit to said W. Y. Jack-man of $5,000 upon Ms stock subscription herein; 2. That the corporation purchase from W. S. Grimes all merchandise, fixtures and appurtenances included in the business formerly at Oakwood, Illinois, and pay therefor by assuming all merchandise accounts due thereon and by allowing to said W. S. Grimes a credit upon his stock subscription herein of $5,000; 3. That upon the receipt of said property the President and Secretary issue and deliver to said W. S. Grimes and W. Y. Jackman respectively, certificates of shares of stock equalling at their face value the respective amounts of stock thus paid for by said respective parties by said respective credits.”

With the declaration the plaintiff filed an affidavit of merits stating that his demand was for the balance due on the purchase price of the stock of merchandise referred to in the declaration. The defendant thereupon filed an affidavit setting out the following special defenses: That the corporation was not liable to Swisher, as charged; that the corporation, as such, had no capacity to enter into said alleged contract at the time alleged in the declaration; that the claim of the plaintiff, if any, was against the officers, directors and stockholders of the corporation, and that the claim of the plaintiff was barred by the Statute of Frauds.

The evidence discloses that on July 3, 1909, the plaintiff Swisher was the owner of a stock of groceries in Danville, Illinois, which he sold to one Jackman. Jackman paid the purchase price, except the sum of $2,000, took possession of the stock, and thereafter, until July 14, 1909, conducted a grocery business in the regular way, buying and selling merchandise. A bill of sale was executed by Swisher at the time of the purchase, but retained by him. Thereafter, Jack-man, together with Grimes and Jackson, took steps for the formation of the defendant corporation, with a capital stock of $15,000, consisting of 300 shares of $50 each. It was agreed among them that Jackman was to turn over to the corporation the stock of groceries in question, in exchange for 100 shares of the capital stock; that Grimes was to turn over a similar stock of groceries owned by him, at Oakwood, Illinois, in payment for 100 shares of the capital stock; that 2 shares of the capital stock were to be given to Jackson as compensation for services rendered the corporation, and the remaining 98 shares of the capital stock were to be subscribed for equally by Jackson and Grimes. Jackman, learning that the plaintiff claimed to hold the title to the Danville stock of goods, as collateral security for the payment of the balance due thereon, advised the plaintiff that the corporation would assume and agree to pay such indebtedness. The plaintiff agreed to the transfer of the stock of groceries to the corporation, but claims that he never released Jackman from liability for the balance due to him. Application was thereafter made for a license to organize the proposed corporation, and the same was issued July 19, 1909. On July 14, the plaintiff, Jackman and Grimes, the subscribers to the capital stock of the defendant, held a meeting at which they were elected directors. They then as directors adopted the resolution hereinbefore set out as “Exhibit B.” At the same meeting a resolution was adopted for the issuance to Jackson of 2 shares of capital stock for services rendered and to be rendered by him. On the same day the plaintiff delivered to Jackman the bill of sale for the stock of goods in question, and Jackson gave him a check for $200, which was afterwards paid, signed “Inside Grocery & Market Co. by W. T. Jackman.” One hundred and forty-nine shares of capital stock of the defendant were thereupon issued to Jackman. The report of the commissioners licensed to organize the corporation was executed and sworn to on that day, and forwarded to the secretary of state, who on July 19, 1909, issued to the corporation a certificate of corporate organization, which was recorded as required by law, on August 14, 1909. On August 2, 1909, meetings of the stockholders and directors of the corporation were held, at each of which resolutions were adopted ratifying the acts of the stockholders and directors at the meeting of July 14. In November, 1909, the defendant corporation made an assignment for the benefit of its creditors, whereupon the plaintiff instituted the present suit for the balance due him of $1,800 upon the purchase price of the stock of goods in question, and a similar suit against Grimes and Jackman upon the same alleged indebtedness.

We are of opinion that under the foregoing facts, which are practically undisputed, the title to the stock of merchandise passed to Jackman upon the delivery of the possession of the same to him by the plaintiff on July 3, 1909. Jackman did not testify in the case, and the testimony of the plaintiff himself tends to show that the sale was absolute and not conditional. Whatever may have been his belief as to the effect of the retention by him of the bill of sale, under the circumstances the delivery of the possession of the property was sufficient to pass the title, followed as it was by the continuance of the possession for over ten days and the sale of stock by Jackman in the regular way. The balance due upon the purchase price constituted but an unsecured indebtedness from Jack-man to the plaintiff, for which the former continued to be liable. We regard as immaterial whether the defendant corporation was a corporation de facto or de jure at the time of the passage of the resolution in question, for the reason that its alleged agreement to pay the indebtedness of Jackman to the plaintiff was obnoxious to the Statute of Frauds. The indebtedness of Jackman to plaintiff was never extinguished. Plaintiff admits that he never released Jack-man, and the fact that he sued Jackman on that same debt is conclusive evidence of that fact. The Jack-man debt being and continuing in existence, the alleged promise of the corporation was merely to pay the debt of Jackman to the plaintiff. It was a promise to pay the debt of another, which, to be valid, should have been in writing and signed by the corporation. The original undertaking was Jackman’s agreement to pay the plaintiff $2,000; the collateral undertaking was the alleged agreement of the corporation to pay the Jackman debt. It cannot be held that there was a novation, one of the essentials of which is an extinguishment of the old contract. Hayward v. Burke, 151 Ill. 121. It is essential that the parties to the old contract either expressly or impliedly consent to the substitution of the new one. Bank v. Kirkwood, 172 Ill. 563. The alleged agreement of the corporation was within the Statute of Frauds and non-enforceable. Eddy v. Roberts, 17 Ill. 504; Netterstrom v. Gallistel, 110 Ill. App. 352; Haines v. Cox Bros., 109 Ill. App. 15; Chicago Lumber Co. v. Miller, 219 Ill. 79.

The fourth, fifth and eighth propositions of law submitted by the' defendant, were in harmony with the foregoing Mews, and should have been held to be the law applicable to the facts in the case.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John T. Pierce, Appellee, v. Decatur Coal Company, Appellant.
    Master and servant—when doctrine of assumed risk does not apply. If a servant is ordered by his master to do certain work he has the right to assume that such master will not expose him to unnecessary danger and if in undertaking to do such work and in doing the same he acts as a reasonably prudent man would act under like circumstances the doctrine of assumed risk will not preclude his recovery.

      Action in case for personal injuries. Appeal from the Circuit court of Macon county; the Hon. William C. Johns, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Le Forgee, Vail & Miller, for appellant.
    Charles M. Borchers and Buckingham & Gray, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Upon a former appeal of this cause, the judgment for the plaintiff was reversed and the cause remanded. Pierce v. Decatur Coal Co., 151 Ill. App. 47. Upon a second trial the plaintiff recovered a judgment for $3,000, to reverse which this appeal is prosecuted.

0 The principal ground of negligence alleged in the declaration, and relied upon for recovery, was the failure of the defendant to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work. The cause was tried upon evidence introduced by the plaintiff only, which discloses the following facts. The plaintiff, who had been a carpenter for thirty years, had been in the defendant’s employ as mine carpenter for about fourteen months prior to the time he was injured. He worked under the direction of Armstrong, appellant’s general manager, and one Fahay, top boss of appellant’s mine. At the tipple of the shaft of the mine was a platform, rectangular in shape, and about twenty-one feet above the ground. It had been built many years before, and had not been inspected for several years. The supports were pine timber. The flooring consisted of two by four elm boards running east and west, and laid upon eight by eight sills running north and south. Along the west edge of the platform, which was unenclosed, the boards extended about fifteen inches beyond the sill. A track ran from the tipple along the west side of the platform, to a chute on the northwest corner, which had been used for several years. The track at the time in question was used for the storage of coal cars as they came up from the mine. Above the floor boards and outside the west rail of the track, was a seven by nine timber called a “dump log,” which lay directly above the sills to which the flooring was attached. The dump log extended out beyond the north edge of the platform for some distance, and at the other end lay upon three of the floor boards. The purpose of the same was to trip the coal cars and .throw the coal from them into the chute. There was a corresponding dump log east of the track, which had practically rotted away.-

■ The only time the plaintiff had ever been upon the platform was about ten days before the accident, when he had taken a piece of iron from the chute. Two days prior thereto he was directed by Fahay to go upon the platform and tear down the chute. There was some discussion between them as to whether the chute timber should be sawed or torn off, but the plaintiff was given no specific directions as to how or where he should stand on the platform while doing the work, or the tools he should use. He testified that he first removed the dump log, and then sought to detach one of the main timbers of the chute at the northwest corner of the platform; that he used a crowbar because, being right-handed, he was- unable to knock it off with a sledge; that if he swung at it right-handed and missed, the force of the blow might have thrown him off the platform; that the only way for him to adjust the crowbar so that he would not be thrown off in case it slipped, was to get out on the ends of the floor board beyond the sill and pry from there; that he stepped out and stood upon and about twelve inches from the end of one of those boards, and just as he put his crowbar in position to pry, the board upon which he stood broke, throwing him to the ground, breaking his thigh and hip bone. He further testified that in removing the dump log, he noticed that two of the floor boards immediately to the north of the one on which the latter stood, were rotten and broken off near the dump log, which he attributed to the moisture that had soaked in between the log and the floor board upon which it rested; that while he did not examine the remaining boards, upon one of which he afterward stood, they all seemed sound. There were no witnesses to the accident other than the plaintiff.

The evidence clearly shows that a proper examination of the platform by the defendant would have disclosed the condition of the board. It contends, however, that under the peculiar circumstances of the case, it was under no duty to specially inspect the platform for the plaintiff prior to sending him on it to work; that he had an equal or better opportunity than the defendant to know the condition of the boards; that although the defect was latent, such conditions could easily have been ascertained by the plaintiff in the exercise of due care, and that he therefore assumed the risk.

We are of opinion that the jury was fully warranted in finding that the platform upon which the plaintiff was ordered to work was defective and dangerous, and that such condition had existed for such length of time that the defendant, in the exercise of due care, should have known of the same. The negligence charged in the declaration was thus established. If it can be properly and justly held that under all the facts and circumstances disclosed by the evidence the plaintiff was not reckless in obeying the order to work upon the platform, but acted as a reasonably prudent person would have acted, it cannot be said that he assumed the risk. When he was ordered to stand upon the platform while wrecking the chute, he had the right to assume that the defendant, his employer, acting through its foreman or top-boss, would not expose him to unnecessary peril. The order itself constituted an assurance of safety, and an assumption by the defendant of the risk of any injury to the plaintiff by reason of any defect in the platform. We think the question as to whether the plaintiff acted recklessly in proceeding to work on the platform without any further inspection than the evidence discloses was made by him, and whether his conduct as a whole was that of a reasonably prudent man, was properly submitted to the jury, and that their finding thereon in his favor cannot be disturbed as being manifestly against the weight of the evidence. The defenses of assumed risk and contributory negligence, therefore, cannot be successfully invoked.

We find no prejudicial error in the rulings of the court upon the instructions. When read together they fully and fairly state the law applicable‘to the facts.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Al Plopper, Appellee, v. The St. Louis & Northeastern Railway Company, Appellant.

      Instructions—ignoring defense. An instruction which, directs a verdict for plaintiff if certain specified facts are found is erroneous if it excludes any material issue.
    Action in case. Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Amos Miller and George W. Black, for appellant.
    T. A. Gasaway, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case by appellee against appellant, the trial of which resulted in a judgment in favor of the plaintiff for the sum of $150. The first count of the declaration alleges that appellee was a passenger on the ear of appellant, having paid his fare to be conveyed from Staunton to Litchfield; that it. was the duty of appellant to so convey him; that the servants of appellant, while within the scope of their duty, wilfully and maliciously caused him to be ejected from said car, by reason whereof he was obliged to procure other conveyance and to incur additional expense to reach his destination. The second count alleges that the servants of appellant wilfully and maliciously and with force and violence pushed arid shoved appellee from the car. Appellant filed a plea of not guilty.

The evidence shows that appellee, who lived in Litchfield, purchased of the agent of appellant at Litchfield, a ticket to Staunton and return; that he boarded the car of appellant at Staunton on his return home; that two of his brothers, John and Ben, were on the car with him, and that a dispute arose between them and the conductor as to the payment of the fare of Ben, and that the conductor ordered the latter to pay his fare or get off the car; that a controversy then arose between the conductor, appellee and his brother as to the details of which the evidence was in irreconcilable conflict, but which resulted in the conductor compelling appellee to leave the car. The evidence fails to show, however, that force and violence were used, as alleged in the second count of the declaration.

By the second instruction given at the request of appellee, the court instructed the jury that if they believed from a preponderance of the evidence that the plaintiff was a passenger on the defendant’s car and that its agents or servants having in charge the management of said car, ordered and commanded the plaintiff to leave said car, in consequence of which order and command the plaintiff without any resistanee left the car in a peaceable manner, he was entitled to recover. The instruction was palpably bad. It directed a verdict in case appellee left the car peaceably upon the command of appellant’s servants, regardless of whether or not any actions of appellee necessitated or justified such command. The instruction being mandatory in form, the error in giving the same was not cured by other instructions given.

The judgment of the City Court will be reversed and the cause remanded.

Reversed and remanded.


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    Barnett Fuller, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Damages—what incompetent in action for personal injuries. Evidence as to the profits of the plaintiff in his business is incompetent in an action for damages for personal injuries.
    2. Damages-—effect of admission of erroneous evidence. If it appears that erroneous evidence offered and received hut after-wards excluded has affected the size of the verdict so as to. make it excessive, a remittitur will he ordered.
    Action in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed on remittitur.

    Opinion filed October 18, 1910.

      Remittitur filed October 29, 1910.
    John G. Drennan and Lemon & Lemon, for appellant.
    John Fuller and Herrick & Herrick, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Appellee recovered judgment for $6,750 against the appellant railroad company, as damages for personal injuries received by him while a passenger, through a collision of two freight trains of the appellant company, in its yards at Gfillman, Illinois, on July 30, 1908. The question of liability is conceded by app ellant, but it is contended that the verdict and judgment are excessive.

The evidence discloses that appellee was a man 46 years of age; that he had been engagd in farming, but had retired some 5 years prior to his injuries; that since, he had been engaged in the business of purchasing and shipping hogs and cattle. That as the result of the accident, both bones of his left leg were fractured a few inches above the ankle; that his collar bone was dislocated; that he received a scalp wound an inch and a quarter in length, and was scratched and bruised on various parts of his body; that he underwent great pain and suffering, and was confined to his bed and home four or five weeks. The evidence further shows that he had expended some $400 for the services of physicians and nurses. Over the objection of appellant, the court permitted him to testify that his earnings in his business had been prior to his injury, “anywhere from $1,500 to $3,000 per year,” and since his injury but about $400 or $500 per year. The court afterward, on motion of counsel for appellee, ordered that the testimony with reference to the earning capacity of the plaintiff before and since his injuries be stricken from the record, and instructed the jury, at the request of appellant, that they should not allow any damages for supposed profits lost by appellee since the time of the alleged injury.

Notwithstanding there was some slight evidence offered by appellee which tended to show that his chest was depressed and that as the result of the fracture of the bone of his left leg it was thereby made about a quarter of an inch shorter in length, that the arch of his foot had become flattened, and that all of such injuries were permanent in nature, and liable to increase with advancing years, we are impelled to the conclusion, after a careful consideration of all the evidence, that the greater weight thereof clearly shows that the damages awarded are excessive, which was doubtless due to the fact that the evidence relative to his earning capacity, which was admitted and afterward excluded, was considered by the jury in fixing the amount of its verdict. If appellee shall within twenty days hereafter, remit from the judgment the sum of $2,750, it will be affirmed in the sum of $4,000; otherwise the same will be reversed and the cause remanded.

Affirmed on remittitur.


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    B. F. Chapman, Appellee, v. City of Litchfield, Appellant.
    1. Variance—when question of, waived. If a party' procures the court to declare to the jury the rules of law applicable to the state of facts disclosed by the evidence and to direct them to return a verdict in accordance with his legal rights under such state of facts he cannot complain that the facts proven were not within the allegations of the declaration.
    2. Municipal corporations—what defense not available to. A city cannot avail of the defense of independent contractor where the work done by the contractor was such which the city was required itself to do and could not delegate.
    3. Damages—injuries resulting from sewer construction. If injuries to personal property result from sewer construction by a city such city is liable and such liability cannot be avoided by the interposition of the defense of independent contractor.
    Action in case. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    M. M. Creighton and Hill So Bullington, for appellant.
    Lane & Cooper and T. A. Gasaway, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the Opinion of the court.

In an action on the case, Benjamin F. Chapman, the-plaintiff, recovered a judgment against the defendant, city of Litchfield, for the sum of $100 and costs. The amended declaration charges that the plaintiff was the owner of certain premises in the city of Litchfield, upon which was situated a dwelling house occupied by himself and family; that the defendant constructed a certain sewer in and along a certain street in said city, in the vicinity of said premises; that in so doing, the said city left a large hole at or near the intersection of Edwards street and Montgomery avenue, at a distance of about thirty feet from the dwelling house of the plaintiff, which said hole became filled with rubbish, offal and putrid matter, thereby creating a nuisance, and that the defendant also permitted a certain other sewer, also constructed in the vicinity of the premises of the plaintiff, to remain open, from which sewer noxious and offensive odors and gases emanated and entered into and were diffused over, into, through and about said premises of the plaintiff, rendering the same unwholesome, unhealthful and uncomfortable, and endangering the health of the plaintiff and his family. During the trial the court permitted the plaintiff to amend his declaration, and refused thereafter to grant a continuance of the cause upon motion of the defendant. To the declaration the defendant pleaded the general issue and also a special plea of license.

There is evidence tending to show that the plaintiff was in the possession of certain premises in the city of Litchfield, upon which was situated a dwelling house, which had been for several years occupied by himself and family as a home; that the main sewer of the city, through which all the sewage of the city flowed, ran east down Edwards street several blocks, and then passed south of appellee’s house about sixty feet, parallel with his premises; that about April 1, 1907, said sewer was opened, under the direction of the board of local improvements of the city and the city engineer, by one Hamm, contractor, at a. point about one hundred feet southeast of appellee’s dwelling; that an additional sewer, known as the south sewer, was then constructed for a distance of about ninety-five feet from said opening; that there was left and permitted to remain in the walls of said original sewer, until the latter part of August, 1908, a hole about four feet square, from which hole noxious vapors, gases and other stenches emanated.

The evidence further shows that appellee’s said premises abut Montgomery avenue, a north and south public street, upon the east; that about thirty feet southwest of appellee’s said dwelling house, in Montgomery avenue, there was a hole about one hundred feet long, twenty feet wide and ten feet deep, in which during the wintér. and spring of 1909, refuse was deposited, under the direction and superintendence of the city. There is evidence tending to show that appellee frequently complained to the city authorities of such conditions and of the stenches and odors arising from the hole in the Edwards street sewer and from the refuse deposited in the hole in Montgomery avenue; that because of such conditions and of the odors and gases arising therefrom, it became necessary for the appellee to keep the windows and doors of his house closed; that during the warm weather the members of his family were unable to sleep, and had been compelled to purchase disinfectants for use in and about the premises.

The special plea is not abstracted, and it is therefore unnecessary to discuss or determine the questions raised and argued relative to the rulings of the court upon the pleadings. It is urged that the evidence with reference to the hole in Montgomery avenue was at variance with the allegations of the amended declaration, and that it was error to admit the same. It will suffice to say that we are of opinion that the court did not err in permitting an amendment to the declaration, nor in refusing to grant a continuance thereunder, and further that the allegations of the declaration were sufficiently broad after amendment to permit the introduction of evidence as to the hole in Montgomery avenue and its condition. The record shows that after the amendment of the declaration the city called and examined some fourteen witnesses as to the condition of such hole.

By the sixth instruction offered by the city, the jury were told that if they believed from the evidence that there were offensive, nauseous and noxious smells in or around the plaintiff’s house, yet if they believed that such smells originated from other place or places than the hole in Edwards street sewer or the hole in Montgomery avenue, they should find the defendant not guilty. Having thus procured the court to declare to the jury the rules of law applicable to the state of facts disclosed by the evidence, and to direct them to return a verdict in accordance with its legal rights under such state of facts, appellant cannot complain that the facts proven were not within the allegations of the declaration. Illinois Steel Co. v. Novak, 184 Ill. 501.

It is also urged that the court erred in refusing to admit in evidence the contract between the city and Hamm for the building of the south sewer, as tending to show that.the nuisance was created by the acts of an independent contractor. We think the contract was properly excluded. The statute delegates to appellant the duty and power to construct and keep in repair its culverts, drains, sewers, and cess-pools, and to regulate their construction, repair and use. It was not in the- power of the city to delegate the care of its streets to a contractor and by so doing relieve itself of responsibility for the maintenance of a nuisance in its streets, injurious to the health of its citizens. Having failed in the performance of such duty, and permitted the Edwards street sewer, which was under its direct control in that regard, to become and remain a nuisance, it cannot escape responsibility for injury to appellee and his family, merely because the original nuisance was created under the contract with Hamm. It is wholly immaterial whether or not the sewer was being constructed pursuant to an ordinance of the city. The evidence shows that the contractor was acting under the authority of the board of local improvements and the city engineer. Neither is it material whether or not public necessity and welfare demanded the construction of the sewer. The right to construct the sewer did not include the right to destroy or seriously impair the value of the property of a citizen by maintaining a nuisance.

The statute also gives the city power to regulate the throwing and depositing of ashes, offal, dirt, garbage or any offensive matter in the public streets. When the city had notice, as the evidence showed that it did, of the depositing of refuse in the hole in Montgomery avenue, and that a nuisance was thereby created, it was its duty to abate the same, and having failed to do so, it became liable to the appellee for damages resulting from such failure: The fact that the public at large may also have been injured by the existence of the nuisance, does not affect appellee’s right of recovery.

We think the given instructions when read as a whole, fairly presented the law applicable to the facts, and that the court did not err in the refusal of certain instructions offered by appellant. We do not think that the remarks of the trial judge when ruling upon the admissibility of the contract referred to, even if held to be improper, operated to prejudice the appellant. We find no prejudicial error in the record and the judgment of the circuit court will be affirmed.

Affirmed.


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    The Town of Anchor, Appellant, v. Daniel B. Stewart, Appellee.
    1. Roads and bridges—prosecution for removal of sidewalk. A judgment for the defendant in a prosecution for a penalty imposed by statute for “purposely” destroying a sidewalk is proper where the jury are justified in concluding that the defendant in moving the sidewalk in question acted in good faith.
    2. Roads and bridges—propriety of judgment for costs against town. In an action to recover a penalty prescribed by the Roads and Bridges Act a judgment for costs against the town is. appropriate in the event of a determination of the action against it.
    Action commenced before justice of the peace. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Bracken, Young & Peirce, for appellant.
    Barry & Morrissey, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This suit was commenced in the name of the town of Anchor, by the highway commissioners of said township, to recover from the defendant a fine or penalty and damages for an alleged violation of paragraph 73, chapter 121, of the Revised Statutes, entitled “Roads and Bridges” (R. S. 1909, p. 1927), which reads as follows: “If any person shall purposely destroy or injure any sidewalk * * * he shall forfeit a sum not less than three nor more than one hundred dollars, and shall be liable for all damages occasioned thereby and all necessary costs for rebuilding or repairing the same. ’ ’ The cause was tried by a jury in the Circuit Court, upon an appeal from a justice of the peace, and a verdict of not guilty was returned. Judgment was thereupon entered that “the town of Anchor take nothing by said action and defendant go hence without day and have and recover from the plaintiff, the town of Anchor, his costs and charges in this behalf expended.” The plaintiff brings the case to this court by appeal.

The evidence shows the following facts: In the year 1880, the defendant laid out on land owned by him, what was known as the original town or village of Anchor, which was never incorporated. On the east side of said village as platted, there was a public highway 60 feet wide. By his plat the defendant left a strip 20 feet wide between said highway and block 3 of said village, which strip, together with the abutting public highway, had been used by the public for over twenty years. The defendant owned some store buildings at the north end of said block' 3, along the front of which he built and thereafter maintained a board platform or sidewalk. A short time prior to the commencement of this suit, a portion of such sidewalk became out of repair and was in an unsafe and dangerous condition. He was notified by the commissioners of highways that he would be responsible if any one was injured, by reason thereof. While the evidence upon this question was conflicting, the jury was warranted in finding that the commissioners directed him to remove the entire walk. He removed a section of the same, and later upon being requested by one of the commissioners to replace it, refused to do so. The commissioners thereupon rebuilt the walk at a cost of $16.27, which was paid by the township.

It is not disputed that the defendant originally built the walk at his own expense. He was not required by law to replace or repair it. It was in an unsafe and dangerous condition. If any one had been injured by reason thereof the defendant and not the township would have been liable for the resultant damages. Town v. Kemper, 55 Ill. 346; Bussell v. Town, 57 Ill. 35. The jury was justified in finding that he believed in good faith that he was authorized to remove the' sidewalk. We are of opinion that the statute relied upon is inapplicable in the present case. The verdict rendered was therefore in accordance with law and justice and we are not disposed to disturb the same.

It is insisted that the court erred in rendering a judgment against the town for costs. Paragraph 50 of Chapter 139 of the statutes entitled Township Organization (R. S. 1909, p. 2235) provides that “In all suits or proceedings prosecuted by or against town officers in their name of office, costs shall be recovered as in like cases between individuals. Judgment recovered against the town or against town officers, and actions prosecuted by or against them in their name of office, shall be a town charge, and when collected shall he paid to the person or persons to whom the same shall have been adjudged.” Paragraph 74 of chapter 151 of the statutes entitled “Roads and Bridges” (R. S. 1909, p. 1927) provides that actions of the present character shall be brought in the name of the town ánd before any justice of the peace or police magistrate within the town, and that such officer shall have the same jurisdiction as in other cases; it also provides that any person other than the commissioners of highways may bring the suit in the name of the town, but that in such case the person bringing the suit shall give a bond for costs as is provided .for in case of nonresidents. We think the foregoing provisions of the statute clearly show that it was proper to render judgment for costs against the town. The judgment of the Circuit Court is affirmed.

'Affirmed.


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    Harry O. Carrott, Plaintiff in Error, v. Michelmann Steel Construction Company, Defendant in Error.

      Instructions—effect of motion for peremptory. Upon a motion to direct a verdict the evidence in favor of the party against whom the motion is directed must be considered in its most favorable light to him, together with all the inferences in his favor which can be legitimately drawn therefrom.

      Action in case for personal injuries. Error to the Circuit Court of Adams county; the Hon. A. Akebs, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Wilson & Wall, for plaintiff in error.
    Govert & Lancaster, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. At the close of the plaintiff’s evidence the trial court directed the jury to return a verdict finding the defendant not guilty.

The first count of the declaration alleges that at the time of the injury to the plaintiff, on August 9, 1909, the defendant was the owner of and occupied a certain building on premises situated in the city of Quincy; that at such time and place a large number of metal wheels, weighing about 900 pounds each, and owned and controlled by the defendant, were then and there, without bracing, so insecurely and negligently leaned by the servants of the defendant, against the outside wall of its said building, that such wheels were likely to fall and thereby injure persons lawfully upon such premises and near said wheels; that one Hoskins, at such time and place, pursuant to a contract between the defendant and himself, was engaged in painting the roof of defendant’s said building, and that the plaintiff was employed by Hoskins to assist him; that in performing such work it became necessary for the plaintiff to use ladders and move the same around and about the outside of such building and near to the place where such wheels were so leaned as aforesaid, and that the defendant had either actual or constructive notice of such facts; that while the plaintiff was so assisting Hoskins, and while he was carrying a ladder around and about the outside of said building, near to the place where such wheels were so leaned as aforesaid, and while he was in the exercise of ordinary care for his own safety, one of said wheels, by reason of the insecure manner in which the same was so leaning against the wall of said building, fell upon the leg and foot of the plaintiff, and so injured several of the toes upon his right foot, as to render amputation of the same necessary. The second count is similar to the first except that the ownership of the wheels and who negligently piled them at the place in question is not averred. The third count differs from the first in that it is charged therein that the defendant negligently permitted certain of said wheels to remain leaning against the outside wall of said building, without bracing the same. Defendant filed the plea of general issue and a special plea denying that Hosldns was employed by the defendant to paint said building.

The evidence introduced by the plaintiff tends to prove the following facts: The factory building of the defendant was situated on the southwest comer of Second and Hampshire streets in the city of Quincy. From its northeast corner, the north or boiler room wall extended west for about thirty feet, then south for about eight feet, and then directly west along the engine room for about twenty feet, thus forming an ell, hereinafter described as the eight-foot wing. For a number of days prior to the accident, a number of metal wheels belonging to the defendant, about four feet in diameter and weighing over 300 pounds each, bad been leaning against the outer side of the boiler room wall. The rim of each of them was about 12 inches in width. The testimony of the various witnesses was that the rim of the wheel nearest the building rested upon the ground from 12 to 24 inches, from the outer wall. The other wheels rested each against the one preceding it, and the wall. About one-third of the last or one farthest west projected beyond the corner of the north wall. The ground sloped slightly at a distance of about three feet .from the wall of the building, toward the north and northwest. Along the boiler room wall, east of where the wheels were standing, a large quantity of angle-iron was piled, and about six feet west of the eight-foot wing and parallel with it, was a pile of scrap iron about four feet high. Hos-kins was engaged in painting the roof of the building, pursuant to a contract between him and the defendant. The plaintiff and the other man in Hoskins’ employ received their orders solely from Hoskins. In the space between the pile of scrap iron and the wall of the eight-foot wing, Hoskins had, several days before the accident, placed an extension ladder, forty feet long and about eighteen inches wide, and composed of two parts, against the wall of the building, so that the bottom rested upon the ground about two feet out from the- wall, and the top extended three feet above the roof.

Prior to the time he was injured, the plaintiff had climbed up and down the ladder several times. On the day of the accident he had taken down the upper extension of. the ladder, and returned for the purpose of removing the lower extension. The pile of scrap iron mentioned, and two wires which ran from the north corner of the ell to the engine room wall, rendered it difficult to raise and move the'ladder back from the building. The plaintiff faced the east, and grasped the side of the ladder, near the bottom, with both hands, and attempted to draw it towards him. While he was so doing, the wheel which projected beyond the corner of the boiler room wall fell upon and injured him.

It is insisted that the verdict was properly directed because there was no positive affirmative evidence of negligence on the part of the defendant. We are unable to reach such conclusion. The foregoing evidence, together with all reasonable inferences to be drawn therefrom, we think was sufficient to require the submission of the issues of fact whether the wheel was insecurely placed, and, if so, whether so placing the same constituted negligence on the part of appellee’s servants, and the further question whether appellant, in the exercise of due care, should have known of the conditions and any danger attendant thereupon, to the jury for its determination.

Upon a motion to direct a verdict, the evidence in favor of the party against whom the motion is directed, must be considered in its most favorable light to him, together with all the inferences in his favor which can be legitimately drawn therefrom. O’Leary v. Ry. Co., 235 Ill. 187; Waschow v. Coal Co., 245 Ill. 517. When reasonable minds might reach different conclusions from the evidence offered, together with all justifiable inferences to be drawn therefrom, it is not the province of the court to take the case from the jury. Offutt v. Col. Exp., 175 Ill. 472.

The trial court therefore erred in directing a verdict for the defendant, and the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Ida B. Gillham, Appellee, v. Byrd O. Estes, Appellant.

      Insurance—when proceeds charged, with equitable lien. Money advanced by reason of an agreement, to be secured by a life insurance policy to be obtained, will be protected and impressed as an equitable lien against the fund accruing upon the death of the insured where the insured has caused the original beneficiary named in such policy to be changed.
    Bill in chancery. Appeal from the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 18, 1910.
    W. O. L. Jewett and J. A. Warren, for appellant.

      J. M. Riggs, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by Byrd O. Estes, from a decree rendered upon a bill filed by Ida B. Grillham, appellee. The controversy arose out of the following facts: In the month of October, 1905, the complainant, Ida B. Grillham, the aunt of Hubert B. Estes, a young unmarried man without means, and in debt, agreed to furnish or assist him in obtaining money to pay his debts and to defray his expenses while completing his business .education, upon condition that he should indemnify and secure her by procuring a policy of insurance upon his life, in the sum of $2,000. On .November 14, 1905, pursuant to said arrangement, Hubert procured a policy of life insurance in the Mutual Benefit Insurance Company for the sum of $2,000, payable to Ella Estes, his mother, if she survived him, and then to complainant, and if neither survived, to his heirs and assigns. It was mutually agreed by Hubert, his mother and complainant, that in the event of his death before that of complainant and the payment of the proceeds of the policy to his mother, the latter should indemnify the complainant as hereinbefore stated.

The insurance policy was delivered to the complainant, who afterward paid premiums on the same amounting to $174.80. She also borrowed the sum-of $500, the proceeds of which were furnished to Hubert, which loan she afterward repaid with interest, and also became liable to pay for supplies furnished him, the sum of $127. With the money so received from the complainant, Hubert paid his debts and completed his education. Thereafter he married appellant, Byrd O. Estes. Prior to the marriage, complainant informed appellant of the indebtedness of her prospective husband to her. Appellant thereupon stated to complainant that she expected to receive $1,000 from her father upon her marriage, and would apply the same upon such indebtedness, upon condition that $1,000 of the life insurance in question should be assigned to her. Appellant failed, however, to make such payment. Thereafter, without the consent of complainant, or Ella Estes, the original beneficiary thereunder, at the request of the insured the policy was changed by the insurance company so as to provide that $2,000 of the proceeds should be payable to appellant and Ella Estes, share and share alike, or to the survivor of them, in case either survived the insured; otherwise to the insured, his executors, administrators or assigns. Hubert Estes died insolvent, April 15, 1908, without having repaid to complainant the money advanced by her to Mm, or his indebtedness for which she was liable, the total amount of which, with interest, exceeded the sum of $1,400.

The insurance company interpleaded in the cause and deposited the proceeds of the policy, $2,002.79, in a bank, subject to the order of court.

The chancellor found that notwithstanding under the terms of the policy the insured had the right to change the beneficiary, inasmuch as appellant had failed to pay appellee the sum of $1,000 according to her agreement, and appellee did not consent to the change, the insurance company had no right to make the change, and the same was nugatory; that appellant was therefore not entitled to any of the proceeds of said policy, and that the same be paid to Ella Estes, to be disposed of by her according to the agreement and understanding among her, Hubert and appellee.

The decree upon the interpleader was right, and is affirmed. The decree distributing the proceeds, however, was erroneous, in that it provided that the entire amount should be paid to Ella Estes. We hold that under the agreement in question, appellee, Ida B. Grill-ham, had a vested interest in the policy to the extent of the indebtedness of the assured to her accruing under the terms of the agreement among the parties. The attempt to change it without her consent was nugatory. Royal Arcanum v. Tracy, 169 Ill. 123. Subject, however, to such rights, we are of opinion that he could legally designate a new beneficiary, and that the change operated to transfer to appellant the remainder of the benefit. Under the terms of the agreement in question, after the attempted change as to beneficiary, Ella Estes became but a trustee for appellee, and had no beneficial interest in the policy. Her consent to such change was not required. The decree should have provided that out of the proceeds of the policy, appellee should be reimbursed, and that the balance remaining be paid to appellant.

The costs of appellee’s additional abstract will be taxed to appellant, and the remainder of the costs of this court to appellee.

The decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree in conformity with the views herein expressed.

Reversed, and remanded.


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      J. V. Manussier et al., Appellants, v. William Wright, Appellee.
    1. Negotiable Instruments—sections Ilf and 52 of Act of 1907 construed. A bank who acquires a note from the original payee to whom it is given is not “a holder in due course" within the meaning of section 14 of the Act of 1907 unless at the time it became the owner thereof such note “was complete and regular upon its face,” or unless the same was filled up and made complete and regular strictly in accordance with the authority given by the maker.
    2. Instructions—estoppel to complain. A party cannot be heard to complain of an instruction where he has procured one of like character to he given on his own behalf.
    Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.

      William H. Hartzell and Seymour L. McCrory, for appellants.
    Charles J. Scofield and J. Paul Califf, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellants, partners doing business as The Basco Bank, against appellee Wright and one Massie, for the recovery of the amount due upon a certain promissory note signed by Wright and Massie, for the .sum of $1,420.20, upon which, under date of October 31, 1908, there was endorsed a credit of $455.68, leaving a balance due thereon at said date of $964.52. Judgment was rendered aginst Massie by default. To the declaration appellee filed the general issue and a special verified plea denying the execution of the note. The jury returned a verdict in favor of the defendant. Judgment was rendered thereon in bar of action and for costs, to reverse which the plaintiff prosecutes this appeal.

The evidence shows that the appellants on June 4, 1908, and for several years prior thereto, had been engaged in the banking business in the town of Basco, Hancock county, Illinois. Massie was a farmer and stock dealer, residing in the vicinity of Basco. On that day he was indebted to said bank in the sum of $1,420.20, upon an overdue note and overdraft account, of which the bank was demanding payment. Appellee testified that in February or March, 1908, Massie came to his farm, and told him he wanted to buy some cattle to make out a car-load, and wanted to borrow $300 or $350 for that purpose, and asked appellee to sign a note with him for the amount; that he signed the note to the Basco Bank, with the blanks for the amount, date and time when due not filled out, and that the note was to be filled out for from $300 to $350 for the purpose above stated. Massie testified that he told appellee he wanted to straighten up at the Basco Bank; that he had a note there, and an overdraft, the amount of which he did not state, and that appellee signed the note for that purpose. The evidence shows that Massie carried the note for some time, and then, in the early part of June, 1908, mailed the same to the bank; that upon receipt of the same, the cashier of the Basco Bank, and one of appellants, filled the blanks in the note by writing in the words “On demand” stamping the date, June 4,1908, on the note, and filling the blank space for the amount with $1,420.20; that he made no inquiry of appellee concerning his instructions to Massie as to filling out these blanks, and that Massie afterward paid $455.68 on the note, which payment was endorsed thereon.

It is contended on behalf of appellee that he was not liable on said note for the reason that at the time of the signing of the same by him and its delivery to Massie, it was agreed that said note was to be filled in for about $300 or $350, and that it was to be given to buy some cattle to make out a load. _ On behalf of appellants it is contended that at the time of the execution of the note by appellee, either that nothing was said as to how the note was to be filled, or that Massie told him he wanted to straighten up at the Basco Bank; that he had a note there, and a little overdraft, but that nothing was said as to the amount of the note or the amount of the overdraft. Appellants contend, first, that the delivery of the note in blank", with the signatures of Massie and appellee thereto attached, to appellants, carried with it, by implication, prima facie authority to appellants to fill in the blanks necessary to complete the note, and when the same was filled in by their cashier the burden was cast upon appellee to overcome such prima facie authority by a preponderance of the evidence. Second, that when appellee signed the note as surety and delivered the same to Massie in blank, he thereby constituted Massie his agent to fill in the blanks necessary to complete the note, and was bound by Ms acts even though the latter exceeded the authority given him, unless appellee has shown by a preponderance" of the evidence that appellants Mew that Massie had exceeded his authority. Third, that appellee having made Massie his agent to do whatever was necessary to be done to complete the note, the instructions given by Massie were those of appellee, his principal, and he was bound thereby notwithstanding Massie may have exceeded his authority or acted in bad faith with appellee, unless notice that Massie had exceeded his authority or had acted in bad faith was brought home to appellants by a preponderance of the evidence. Fourth, that inasmuch as Massie sent the note in question to the bank by mail without any instructions whatsoever, the bank had a right to fill in the note for the amount actually due.

Whatever may have been the rule prior to the enactment of the Negotiable Instruments Law of 1907, the liability of appellee must be governed by such statute.

The jury, who were the sole judges of the credibility of the witnesses and the weight to be given to their testimony, doubtless credited appellee rather than Massie upon their respective versions of the conversation between them at the time the appellee signed the note. The law must therefore be applied.upon the hypothesis that the facts are as appear from the testimony of the latter.

Under section 14 of the Negotiable Instrument Act, where a negotiable instrument is wanting in any material particular, the person in possession has prima facie authority to complete it by filling up the blanks therein, but in order that such instrument, when completed, may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given, and within a reasonable time. But if any such instrument, after completion, is issued or negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had. .been filled up strictly in accordance with the authority given and within a reasonable time. Rev. Stat. 1909, p. 1535. Section 52 provides that a holder in due course is a holder who has taken the instrument under the following conditions: (1) That the instrument is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Ibid. 1538.

The liability of appellee upon the note in suit must therefore turn upon the question as to whether or not, under the circumstances, appellants were holders of such note in due course, within the meaning of the statute quoted. We are of opinion that they were not. The note was not complete and regular upon its face when it was delivered to appellants’ cashier. Boston Steel Co. v. Steuer, 183 Mass. 140. It therefore could not be enforced •against appellee, unless filled up strictly in accordance with the authority given by appellee, and within a reasonable time. It is not contended that any direct authority was given by appellee to the cashier, nor is there any evidence in the record showing any authority was given to the cashier by M'assie. It does appear that a letter of some character or nature was sent to the bank together with the note, but appellants were not permitted to show the conténts thereof, having failed to introduce the necessary preliminary proof as to its loss. True it is that they attempted upon cross examination of the cashier, to show by him the loss of the letter, a search therefor, and its contents, but the court properly held that such inquiry was not proper cross examination. The testimony sought to be introduced would have been material and competent, but no attempt was made to introduce the same in the proper manner or at the proper stage of the proceedings. That appellants were deprived of the benefit of the evidence, if favorable, was the fault of counsel and not due to error on the part of the court. It must therefore be assumed that the cashier filled the blanks without authority from appellee, direct or indirect, express or implied. When he did so, without investigation or inquiry, it was at the peril of appellants, and' the burden devolved upon them to show authority for so doing. This they failed to do. The foregoing view is not only warranted by the plain language of the statute, but is further supported by VanderPloeg v. Van Zuuk, 135 Iowa 350, where it is held that a payee who takes a note for past indebtedness, in which a blank has been wrongfully filled out, is not a holder in due course, within the meaning of the section in the Negotiable Instrument Law requiring blanks to be filled according to instructions, but providing that, if such an instrument, after completion, is negotiated to a holder in due course, he may enforce it, as if it had been filled up strictly in accordance with the authority given. The Iowa and Illinois statutes upon this point are identical, except that the Iowa statute, in the fourth sentence, uses the language “is negotiated to a holder in due course,” and the Illinois statute uses the words, “is issued or negotiated to a holder in due course,” which difference does not affect the case at bar.

. It is urged that certain of the instructions given by the court at the request of appellee, deprived appellants of the benefit of the prima facie case made by them in the introduction of the proof of the execution of the note, by placing upon them the burden of proving that the blanks in the note had been filled strictly in accordance with authority. We do not understand the instructions in question as having that effect. They simply apply the law to the facts without telling the jury where the burden of proof lies. Moreover, appellants are estopped to raise the question by instruction No. 8, given at their request, in and by which they assumed the.burden of proof throughout the case. It is well settled that a party cannot be heard to complain of an instruction where he has procured one of like character to be given on his own behalf. Comerford v. Morrison, 145 Ill. App. 615. For the reason last stated, they cannot complain of the modification of their instruction No. 7. Appellants’ instruction No. 9 was properly refused. While directing a verdict, it wholly ignored appellee’s defense. Instruction No. 10 was properly refused, as there was no theory of the evidence upon which it could be properly based.

Appellants invoke the rule that when one of two innocent persons must suffer by the wrongful act of another, the loss must fall upon him who put it in the power of the person to commit the act which caused the loss. Appellants cannot be properly held to have been innocent parties within the meaning of the rule stated. They knew the note was incomplete in a most important particular, and proceeded without inquiry as to authority, to supply the missing terms. The rule is therefore inapplicable.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Nellie M. Presley, Administratrix, Appellee, v. Kinlock-Bloomington Telephone Company et al., Appellants.
    1. Pleading—admissions implied from general issue. Held, that the ownership and operation of telephone wires was admitted by the filing of the plea of the general issue.
    2. Negligence—when doctrine of assumed risk does not apply. The doctrine of assumed risk is only applicable to cases arising between master and servant.
    3. Negligence—when exclusion of evidence erroneous. If evidence as to the proper and approved method of doing certain work is admitted it is error to exclude evidence in denial.

      4. Negligence—when ordinance competent to rebut charge of. If the plaintiff claim that certain, methods of construction are negligent it is error to exclude an ordinance offered by the defendant which required the adoption of the methods of construction so complained of.
    5. Evidence—what competent upon probable duration of life. It is proper to use approved standard life tables to show the probable duration of the life lost and of the next of kin of the deceased.
    6. Instructions—when upon liability for negligence erroneous. An instruction is erroneous which charges the defendant with liability for negligence without limiting such charge to the negligence alleged in the declaration.
    7. Instructions—when upon question of damages erroneous. An instruction upon the subject is erroneous which does not limit the jury to the evidence as the basis of fixing the compensation to be awarded.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Lillard & Williams, Sigmund Livingston and William R. Bach, for appellants.
    Jacob P. Lindley and John E. Pollock, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by Nellie M. Presley, administratrix of the estate of John W. Presley, deceased, against Kinlock-Bloomington Telephone Company (hereinafter designated as the Telephone Co.), Bloomington & Normal Railway &. Light Company (hereinafter designated as the Lighting Co.), and Bloomington & Normal Railway, Electric & Heating Company. Upon a trial by jury a verdict was returned against all of the defendants, for the sum of $10,000. After verdict the suit was dismissed as to the Bloomington & Normal Railway, Electric & Heating Company, a remittitur of $3,000 was entered by the plaintiff, and judgment for $7,000 rendered against the remaining defendants, who are the appellants in this court.

The declaration charges that plaintiff’s intestate, who was in the employ of the city of Bloomington, while engaged in trimming a street lighting lamp, was killed through coming in contact with a high tension electric current, which was being conveyed upon the wires which were a part of a system maintained and operated by the city for lighting the streets. The declaration further charges that said current was conveyed to the city wire by a telephone wire belonging to and controlled by the defendant Telephone Co. as a part of its system, and that through the negligence of the defendants, said telephone wire became rusted and defective and by reason thereof broke and fell upon the wire of the Lighting Co., and also upon the city wire, thus creating a cross, whereby the high current upon the wire of the Lighting Co. was conveyed to the city wire; and that the insulation of the Lighting Co. was ragged, torn and worn out, and that there was no guard between the telephone wire and the lighting wire, by reason whereof Presley was killed as aforesaid. One count is predicated upon the violation of an ordinance of the city which provided that “any electric wire pole or electrical support or other electrical apparatus in said city which shall not he properly insulated or installed or shall cause any unnecessary risk or danger to person or property in said city is hereby declared to be a nuisance, and any person, company or corporation who shall maintain or use the same in such dangerous condition shall he fined as hereinafter provided. And the city electrician is hereby authorized to cut out the same and prevent its further use.” The general issue only was pleaded.

The evidence discloses the following facts: On and prior to October 26, 1907, the city of Bloomington maintained and operated an electric system for the purpose of lighting its streets, over the wires of which a current of electricity passed in the night time only. The defendant Lighting Co. maintained a system for the purpose of furnishing electricity to its street car line and light and heat to private citizens. A current of the strength of 2,200 volts was in circulation upon its line during the entire time. The Telephone Co. maintained poles and wires through a certain alley running east and west lying between Washington and Jefferson streets. Its wires extended across Prairie street which runs north and south. The Lighting Co. maintained certain wires which ran north and south on the west side of Prairie street in said city and passed underneath the telephone wires at a distance of four or five feet. The city also had a wire running north and south on Prairie street, attached to the same poles with the Lighting Co., and at about the same level. There were no guards or sufficient protection to prevent the telephone wires, in case the same parted, from falling on the wires of the Lighting Co. On the day in question one of them broke and fell across and rested upon both the wires of the Lighting Co. and the city wire. A current of 2,200 volts was thus carried from the Lighting Co. wire to the telephone wires, thence across to the city wire, and along the same to a point at G-ridley and Mill streets, where Presley, at about eleven o’clock in the day-time, was engaged in trimming an electric lamp. Through contact with the city wire he was instantly killed. An examination of the surroundings immediately thereafter disclosed that the insulation on the electric light wire was in good condition, but that there was no guard or netting to prevent it from coming in contact with the other wires, and a test then made showed that while the telephone wire was resting upon the electric light wire and the city wire, the latter wire carried the high tension current, but that when the telephone wire was removed such current was absent.

The Lighting Co. contends that the evidence shows that the volt wire in question was owned and controlled by the Union Gas & Electric Co. and that the only connection the Lighting Co. had therewith was that it generated electricity at its light plant and sold and delivered the electric current when generated, to said Union Gas & Electric Co. at the Lighting Co. plant, where the current was measured through meters, and that thereafter the Lighting Co. had no authority or control of said current, or of the wires of said Union Gas & Electric Co. upon which it was thereafter conveyed. The Telephone Co. contends that the proof shows that the wire which fell and is charged in the declaration as belonging to and being controlled by it as a part of its telephone system, together with the poles and cross-arms upon which it was strung, belonged to the McLean County Telephone Co. It is therefore contended that because of the failure of the plaintiff to prove the averments of the declaration as to the ownership and operation of the respective wires, a verdict should have been directed in their favor. By pleading the general issue only, the defendants impliedly conceded that at the time of the death of Presley, they owned and were operating the wires in question. McNulta v. Lockridge, 137 Ill. 270; Life Ass’n v. Wells, 200 Ill. 445; Ry. Co. v. Carroll, 206 Ill. 318; Penn. Co. v. Chapman, 220 Ill. 428; Tract. Co. v. Jerka, 227 Ill. 95; Pell v. R. R. Co., 238 Ill. 510; Winn v. R. R. Co., 239 Ill. 122; Brunhild v. Traction Co., 239 Ill. 621. No proof of the ownership or control of the wires was necessary, inasmuch as the averments of the declaration in that regard are not put in issue by the pleadings, and were thus admitted.

While the -evidence is somewhat in conflict, we are of opinion after a careful review of all the evidence, that it tends to show that the wires in question were not properly protected or guarded, so as to prevent contact between them and the deflection of the current of electricity from one to-the other; that the defect was one of original construction; that Presley at the time he met with his death was in the exercise of due care and caution for his own safety, and that his death was caused by reason of his having come in contact with the city wire as charged in the declaration. These issues were of fact, and were properly submitted to the jury. It cannot be held, as contended, that Presley assumed the risk of injury as an incident to his employment, as he was not in the service of either of the defendants. The doctrine of assumed risk is only applicable to cases arising between master and servant. Conrad v. Springfield Railway Co., 240 Ill. 12.

It is complained that the trial court erred in its rulings upon the admissibility of evidence. We think this contention well founded in the following particulars : The plaintiff was permitted to introduce evidence tending to show that the proper and approved method of stringing wires over high tension wires was to erect or construct a guard or net of wires so as to prevent the upper wires from falling upon the high tension wires below. The defendants sought to introduce evidence to the contrary but were not permitted to do so. This was error. Whether the maintenance and operation of the wires were in accordance with the approved and customary method, and whether guards or netting was the usual construction, were material issues in the case. The defendants also offered in evidence ordinances of the city which provided for the consolidation of wires on any pole or system of poles of any other company, under the direction of the city electrician; also providing-how electric wires should be insulated, and further, that all telephone and telegraph wires should be strung upon the same set of poles so far as possible. The ordinance in question tended to show that the method of construction adopted by the defendant was, in part at least, in compliance with the city ordinances, and that the Telephone Co. was compelled by the same to use the pole in question. The facts shown hy the ordinance were material to the issues in the case, and it was error to refuse to admit them in evidence.

The court did not err in admitting the life tables for the purpose of showing the prospective life of the plaintiff. It is proper to use approved standard life tables to show the probable duration of the life lost (Calvert v. Light Co., 231 Ill. 290), and of the next of kin of the deceased. Swift v. Gaylord, 229 Ill. 330. The propriety of their use to show the expectancy of the life of the plaintiff, unless accompanied by proof of the prospective life of the deceased, is questioned by appellants. It will suffice to say that appellants were at liberty to introduce the latter proof if they so desired. Numerous other errors upon the question of admissibility of evidence are urged and argued. It would unduly extend the length of this opinion to discuss the same in detail. Some of them are well assigned, but will doubtless be corrected upon another trial.

Plaintiff’s given instruction 3 charged' the jury that the Telephone Co. might be responsible for any negligence that might have occurred on account of the defect or condition of any of the wires upon said pole. This instruction was erroneous, for the reason that it did not limit the responsibility of the Telephone Co. to the negligence charged in the declaration. It is elementary that recovery can be had only on the negligence charged in the declaration. Ratner v. Ry. Co., 233 Ill 169. The instruction is further defective in that it directs the jury that the Telephone Co. might be responsible for any “negligence” that may have occurred on account of the defect or condition of any of the wires on said pole, thus ignoring the issue as to whether or not said company exercised proper care in construction and maintenance; and furthermore makes such company responsible for any negligence no matter who may have been guilty of the same, and whether known to said company or not. Plaintiff’s given instruction 4 in effect tells the jury that it is incumbent upon them to find some one guilty, and should not have been given. Number 5 tells the jury that if the death was caused by the negligence of the defendants or of some one or more of them, as charged in said additional counts, the plaintiff was entitled to recover. The instruction should have been so limited as to give a right of recovery only against such defendant or defendants as were proven guilty of the negligence charged. Plaintiff’s eighth given instruction, upon the question of damages, is erroneous in that no reference whatever is made therein to the evidence, and the instruction permitted the jury to fix compensatory damages upon any basis they saw fit.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Town of East Nelson, Plaintiff in Error, v. F. E. Leeds, Defendant in Error.
    Roads and bridges—what essential to establish liability for obstruction of highway. The evidence must conform to the complaint and show that the defendant obstructed the place in the highway fixed in the complaint as alleged as having been obstructed.
    Action commenced before justice of the peace. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    E. E. Weight and W. K. Whitfield, for plaintiff in error.
    John E. Jennings, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action originally brought before a justice of the peace, by the town of Bast Nelson, on the relation of the commissioners of highways of said town, for the recovery from appellee of the statutory penalties for obstructing a public highway and failing to remove the alleged obstruction after notice. The trial in the Circuit Court resulted in a verdict and judgment in favor of the defendant.

The evidence discloses that prior to the bringing of the suit, the commissioners of highways had served a notice in writing upon the defendant, demanding that he remove from the public highway in question a certain fence described as “being in the highway the entire distance from the southeast corner of the forty acre tract herein described to the southwest corner thereof, the fence in question being constructed out of posts and wire and runs logitudinally with the highway in question and being over in the highway several feet.” The notice further recited that unless said obstruction was removed from said highway within a short period from the date thereof, suit would be entered against defendant for the penalties provided by statute. The commissioners of highways thereafter filed a complaint with a justice of the peace, charging an obstruction of the highway in question, in substantially the same manner as described in the foregoing notice. In both the notice and complaint, the defendant was charged with having obstructed the highway for the entire length of a forty acre tract therein described. It was therefore incumbent upon the plaintiff to establish such fact by the greater weight of evidence, and recovery could not be had upon proof that he was obstructing a part of the entire distance running on said road. Township v. Adkins, 232 Ill. 510; Farlow v. Town, 186 Ill. 256; Town v. Pruett, 215 Ill. 162. Having in its complaint given a particular description of the place obstructed, the plaintiff was bound to prove the same. Fallow v. Town, supra. The defendant was entitled to be informed by the written notice, of the place which he was charged with obstructing, so that he might ascertain his rights at such place.

The evidence shows that the highway in question was obstructed by a fence erected and maintained by the defendant at the east end of the line of the forty acre tract described. As to the west end, the evidence was in close conflict, and we cannot say that the finding of the jury that no obstruction existed at that place was clearly against the evidence. It cannot therefore be said that the fence was substantially in the highway for the entire distance.

It is urged that the court erred in not permitting the plaintiff to introduce evidence tending to show the width of the highway east and west of the portion which it was alleged was obstructed. Such evidence was immaterial and properly rejected. Township v. Linville, 174 Ill. 579. For the same reason, the newly discovered evidence presented on the moiion for new trial was also immaterial.

Complaint is made of the third instruction given at the request of the defendant. It is insisted that the same was misleading, in that it gave the jury to understand that the defendant could not be found guilty unless the proof disclosed the fact that the fence in question “had been built several feet over in the highway” for the entire quarter of a mile. What has been said disposes of this contention. Moreover, the alleged misstatement of the law complained of appears in several of the instructions given at the request of the plaintiff, which inform the jury that if they believe from the evidence that the defendant had obstructed the highway for the entire distance of a quarter of a mile,, as alleged in the notice, they should find the issues for the plaintiff. The plaintiff is thus estopped from contending that the instruction in question was erroneous in the respect specified.

It is also urged that the court erred in giving the third instruction offered by the defendant. The instruction recites each of the specific averments of the complaint, and requires the plaintiff to prove the saíne as a condition precedent to recovery. We perceive no error in giving the. same.

The judgment of the Circuit Court is affirmed.

Affirmed.