text:
    Joseph Claybaugh v. Robert B. Hennessy.

      Judgment Sustained upon Review of Evidence — Surrender of Note— Practice.

    1. Where a jury is waived and the cause is tried by the court, the same presumptions attach to the findings of the court as would have attached to the verdict of a jury.
    2. Upon a review of the evidence, which was conflicting, the judgment of the court below is affirmed, the question being as to whether a certain agreement was in effect the surrender of a note.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Edgar County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. James A. Eads, for appellant.
    Messrs. Sellar, Dole & Bacon, for appellee.
   Wall, J.

This was an action of assumpsit. Appellee held a note signed hy Johnson Claybaugh as principal and Joseph Claybaugh as surety, for $800, which had been reduced by payments to $300. Being unable to pay this balance the principal, Johnson, said to appellee that if he could borrow the money to pay it he would do so, to which appellee, as he says, replied that he thought the sum required could be borrowed from one Bibo. According to the version of appellee he saw Bibo and learned that he would Joan the money to Johnson on his note with Joseph and James Claybaugh and appellee as sureties, and so informed Johnson; and it was then arranged by him and Johnson that if such a note was made and the money obtained, appellee would retain the note he then had on Johnson and Joseph until the Bibo note, which was to run one year, was due, and if it was paid by Johnson that would settle the old note, but if appellee had to pay anything on the Bibo note, then he was to collect that on the old note. That a note was drawn up, signed by Johnson and his two brothers, Joseph and James, and by the former brought to appellee for his signature. He signed it and took the old note from his desk to make entry of the facts upon it when he was called out of the room by some person, and leaving the old note on the desk was absenta few moments; when he returned J ohnson was gone, and so was the old note; but that did not occur to him then, nor until after the maturity of the Bibo note, when he recalled the circumstance after having searched in vain for the old note, and was then informed by Johnson that he had it and owed appellee nothing on it. The note to Bibo was paid by appellee, Joseph, and James, in equal parts, and it is to recover the part paid by appellee that this suit was brought against Johnson and Joseph.

The case was heard by the court without a jury and there was a finding and judgment for the plaintiff below for §132. The same presumptions attach to this finding of the court that would to the verdict of a jury. It is purely a question of fact what was the arrangement, and whether the old note was, to be given up or whether it was to remain as stated by apjDollec.

Johnson denies the version of appellee as to this point and insists the note was surrendered and canceled by this transaction. Joseph says he knew nothing of the alleged arrangement and would not have consented to it.

There are, however, several circumstances which point the other way.. It is not probable the appellee would voluntarily and without consideration give up one third of the money secured by the old note for the sake of getting the other two thirds and the explanation made by him of the transaction is not hard to believe.

It is quite easy to believe appellant understood it the same way,and, while he now insists that such an arrangement would have put him in a more unfavorable position, it is not clear that he would have so regarded it then, or that this claim is now made in good faith. It was but a change of security so far as appellant was concerned and he probably considered it a desirable thing at the time. The conduct of appellant when appellee was trying to find the old note and before he recalled the circumstance of leaving it on the desk when Johnson was present tends to show that he knew more of the matter than he now admits.

There are some points on which appellee is contradicted by the testimony of Bibo and the case upon the whole proof is by no means free from doubt, but the trial court saw the witnesses, heard them testify and had the opportunity to observe many circumstances in their demeanor and general appearance which would properly affect the mind in reaching a conclusion but which it is impossible to incorporate in a bill of exceptions. We can not say, considering the evidence and the inferences reasonably to be deducted therefrom, that the finding is so clearly wrong as to justify interference by this court.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Watt., °J.

license: Public Domain

text:
    William Vanliew v. Second National Bank of Galesburg.

      Negotiable Paper — Recovery pro tanto on Note Held as Collateral, though Paid to Payee — Application of Payment — Practice.
    1. The holder of a note, assigned before maturity as collateral security for a pre-existing debt, may recover from the maker the amount due on said debt, although the latter has paid the note to the payee.
    2. Where said amount is less than the amount of the note a recovery may be had pro tanto, although the declaration claims the amount of the note.
    3. The maker is not entitled, upon the facts presented, to an allowance on account of a certain payment presumed to have been made to the holder by the payee.
    4. This court refuses to disturb the finding of the court below that the note was assigned before maturity, there being ample proof to justify said finding.
    5. This court may ignore an objection not raised below, and not specifically stated in the assignment of errors.
    [Opinion filed August 26, 1886.]

      In error to the Circuit Court of Fulton County; the Hon. Simon P. Shope, Judge, presiding.
    Messrs. C. G. Whitney and C. F. Robinson, for plaintiff in error.
    Messrs. John A. Gray and Williams, Lawrence & Bancroft, for defendant in error.
   Watt., °J.

This was an action of assumpsit on a promissory note given by plaintiff in error to A. H. Miller, for $3,000, dated November 24, 1880, payable three years thereafter, indorsed by the payee to one O. J. Beam, and by the latter to the defendant in¡ error. The indorsement last named was before maturity and as collateral security for a loan of $2,000 made by the bank to Beam.

Subsequently, and a short time before this note matured, plaintiff in error gave his three . notes of $1,000 each in payment of this note which Beam informed him was temporarily out of his possession, but which, claiming to own still, he promised to obtain and hand over to plaintiff in error in a short time. Plaintiff in error made several applications for the note, but was put off from time to time and did not learn where the note was held until he received notice and'request for payment from the defendant in error.

The three notes of $1,000 each which he gave in renewal or payment of this were negotiated to third parties before maturity. It appeared that the bank took the note in suit before maturity and before payment as above stated, and that it acted in good faith. The case was tried by the court without a jury and there was a finding and judgment for plaintiff below for the amount due on the Beam note, for which this was held as collateral, $2,073.33.

The holder of a note assigned before maturity as a collateral to secure a pre-existing debt, may recover from the maker the amount of money due him, the holder, although the maker may have paid the note to the payee. Mayo v. Moore, 28 HI. 428. This proposition is not controverted, as we understand, by plaintiff in error; but it is urged that upon 'a decíaration claiming the whole of the note, there can not be a recovery pro tanto for so much as the plaintiff is entitled to receive as holder for collateral security. Ho authority is cited for this position, and we should be surprised if any such could be found.

Prima facie the holder of the note may recover the full amount due. If he holds it merely as collateral, the surplus over his debt would be for the benefit of the payee ; but if the maker has a defense against the note in the hands of the payee, he may insist that the holder shall not recover more than the debt for which the collateral was held.

In other words, the maker may set up and avail of his defense pro tanto to the surplus. There is no valid reason for requiring special averments as to the amount plaintiff may recover in such case. He may declare, as was done, for the whole amount due upon the face of the paper, and recover whatever may ap>pcar from the evidence is due him from defendant.

It is next urged in the brief that the judgment is excessive by §232.58. This point was not made in the motion for new trial, nor is it specifically stated in the assignment of errors. We might therefore properly ignore it. Emory v. Addis, 71 Ill. 273.

It is based upon the fact that there appears an indorsement on the note in suit of §210 paid as interest after it came to the bank. This payment was not made by the plaintiff in error as he states, and it is to be presumed that it was made by Beam and applied by his consent or direction on other paper of his held by the bank. We find that after this interest was paid Beam renewed his note to the bank for §2,000. It is difficult to see upon what ground the plaintiff in error can take any benefit as against the bank by reason of this payment which he did not make.

It is urged, finally, that the note was not assigned to the bank before maturity and that it was taken subject to all the equities arising out of the transaction between plaintiff in error and Beam. We deem it not incumbent upon us to state and discuss the evidence bearing upon this point, but it suffices to say there is abundant proof to justify the conclusion reached by the trial court. Ho error appearing in the record the judgment will be affirmed.

Affirmed.


author: Wall, J.

text:
    Martha Barnes v. Betsy Gill.

      Fraudulent Conveyance — Bill by Widow, Who Joined hilt, to Set Aside —Excuse.

    The widow of the grantor can not maintain a bill in equity to set aside a conveyance in which she joined as his wife, knowing it to be without consideration and for the purpose of defrauding creditors, unless she can excuse her participation in the act complained of. The excuse that she was too sick to care what she did, is insufficient when it appears that she knew the nature and effect of the deed.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. O. Cunningham, for plaintiff in error.
    Mr. Francis M. Weight, for defendant in error.
   Wall, J.

This was a bill in chancery filed by Betsy Gill and J. E. Morrison against Martha Barnes and Thomas W. McHugh, administrator of William Gill, deceased.

' The bill alleged that said William Gill died intestate, leaving the said Betsy, his. widow, and being indebted to complainant, Morrison, in the sum of $25 for a medical hill, and to complainant, Betsy Gill, in the sum of $550 for money loaned and the interest thereon; that shortly before his death the said William Gill conveyed lot 7, block 3, etc., in Urbana, to said Martha Barnes, who was his only daughter, without consideration, and for the purpose of defeating complainants in the collection of their claims; that he died insolvent, his estate being insufficient to pay funeral expenses and widow’s award; that McHugh was appointed administrator, and prays for an account of the moneys due complainants, and for a sale of the property so conveyed to defendant Barnes. The administrator suffered a default, and the bill was taken as confessed against him. The defendant Martha Barnes answered, admitting the indebtedness to Morrison but averring that she had paid the same since the filing of the bill; denied the indebtedness to complainant Betsy Gill, and alleged that she joined with said William McGill, who was her husband, in the execution of the said deed, now charged to be fraudulent, with a full knowledge of its purport and intent, and if there was any fraud therein, she was a participant and ought not to be heard to complain thereof. To this answer replication was filed, and the cause having been heard a decree was entered according to the prayer of the bill, in favor of complainant Betsy Gill, for $546, to be paid out of the proceeds of the said lot, which was ordered sold, it being found the deed was fraudulent as against complainant, and though she joined therein, she was at the time suffering such physical infirmity as not to be chargeable with the consequences that would otherwise attach to her. participation in said conveyance.

As to complainant Morrison the bill was dismissed, his claim having been paid. The evidence to establish the debt due the complainant Betsy Gill is mainly the testimony of McHugh. He is related by marriage to this complainant, his wife being her daughter, and though he is administrator of the estate and is a defendant to the bill and should protect the estate as far as possible, he seems not only to have made no defense but to have suggested the suit, and by his own testimony furnished important proof to the complainant.

It is quite clear the deed was made without consideration and for the express purpose of defeating Morrison in the collection of his claim, and that this was known and understood by complainant, who as the wife of said William Gill, joined with him in the conveyance.

Manifestly, slie cannot ask the aid of equity to set aside the conveyance, unless the circumstances are such as to relieve - her of the consequences ordinarily attaching to her participation in the act complained of.

The excuse offered is that she was at the time in such ill health as not to be accountable for what she did. The only evidence to support this is in the testimony of Dr. Morrison and J. O. Ounningliam. Dr. Morrison says she suffered much from neuralgia and debility: that she was weak and childish, often scarcely conscious of what she was doing and taking little interest in . what was going on; but that she had mind enough, if her attention was called to the transaction, to understand the nature of it. Upon his being recalled he stated that he had not seen her for six months before the deed was made, and did not know her condition at that time.

Mr. Cunningham testified, being called by the defense, that he was present on a certain occasion a day or two before the beginning of that term of court, and heard the complainant state that on the day when the deed was made Mr. Gill came home with Eadebaugh, the notary who took the acknowledgment, and said to her he wanted to make the deed to prevent Dr. Morrison from collecting his bill; that the deed was not read to her, but Eadebaugh informed her what it was. On cross-examination, this witness stated that complainant also said in the same conversation, that when she executed the ' deed she was so sick she did not care what she did, and that Eadebaugh told Mr. Gill he had better keep still about the deed being made.

Eegarding the case as favorably for complainant as the record will permit, it is apparent that she was fully cognizant of the nature and object of the deed. This being so, does her ill health furnish sufficient ground upon which to avoid it? The evidence of Dr. Morrison, it must be conceded, is not enough for this purpose, and this branch of the case must rest upon her own declaration, stated in Cunningham's cross-examination, that she was so sick she did not care what she did. This declaration was made shortly before the trial, when she understood the importance and necessity of an explanation.

It is evident she knew what she was doing bnt the position is, she was too sick to care.

Such a state of facts might exist, and call for equitable interference to set aside the act. Perhaps comprehension might be attended by an utter lack of volition, but this is so unusual as to require proof much more clear and satisfactory than is to be found in this record.

It is unnecessary to notice other features of the case discussed in the briefs of counsel. For the reason indicated the decree will be reversed and the cause remanded.

Reversed cmd remanded.


author: Pleasants, P. J,

text:
    Charles A. King & Company v. Alonzo Luckey & Company.

      Action by Broker to Recover Advances — Gambling Transactions — Options — Evidence.
    In an action by a broker to recover advances made to cover losses on purchases and sales of corn ordered by the defendants, it is held: That the instructions as to the strictness with which said orders should be construed were erroneous as applied to the case presented; that under the evidence the transactions in question were not gambling transactions, and that certain evidence as to the “kind” of transactions between the parties was improperly admitted.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Champaign County; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. Francis M. Wright, for plaintiffs in error.
    Messrs. T. J. Both and J. L. Ray, for defendant in error.
    The plaintiffs’ account and the evidence in the case show clearly that these were gambling contracts. Lyon v. Culbertson. 83 Ill. 33; Webster v. Sturges, 7 Ill. App. 560.

      And as to the plaintiffs not having filled their part of the contract, whether legal or illegal, preventing a recovery, it is => entirely superfluous to cite authorities.
   Pleasants, P. J,

Plaintiffs in error owned an elevator and did a general commission business in grain at Toledo, Ohio, and defendants bought and shipped at Rantoul, Illinois. In May, 1881, the parties made an arrangement whereby King & Company were to advance money to Luckey & Company to purchase corn which was to be shipped to them for sale, and to have interest at the rate of eight per cent, per annum on daily balances due and one cent per bushel for selling. Defendants had no elevator but bought as they could by wagon loads and by contracts with farmers, on which they obtained advances from plaintiffs, and ordered sales in advance of shipments, and in some instances purchases also, to meet contracts of sales so made. For advances made on losses upon such transactions plaintiffs in error brought this suit, in assumpsit, on the common counts. Penfield was defaulted. Luckey filed the general issue and also a special plea that the promises declared on were all made in consideration of gambling contracts for the purchase and sale of options and differences in market values of grain at a future time, etc. Upon a verdict for the defendant, the court refused anew trial and entered judgment.

The account between the parties embraced other items, but those which constitute the balance claimed and are the subject of this controversy are these: ,

July 22, 1881. Loss, August 10, corn, purchase and sale.............................................................$287.00
August 5, 1881. Loss, August 2, corn, purchase and sale........................................................... 30.00
August 20, 1881. Loss, August S, corn, purchase and sale......................................................... 910.00

It is not denied that these purchases and sales were made, or that losses were sustained and advanced thereon as charged, but it is insisted, first, that they were gambling contracts, and second, that there was no authority whatever for the purchase referred to in the last item, and that the others were not in strict pursuance of the orders given.

Four telegrams from defendants to plaintiffs were introduced as follows: June 11, 1881, “ Sell five August corn ; ” June 16, 1881, “Sell five August corn;” July 22, 1881, • “ Buy twelve thousand August corn,” and of same date, “ Sell ten August corn.” It appears that upon receipt of these, respectively, plaintiffs made the sales and purchase as therein directed, hut the purchase was made in two lots, 10,000 in one and two in another; and further, that the defendants having failed to ship any grain for delivery on these sales they also purchased the deficient amount of 8,000 bushels, in two lots of five and three. There was positive and uncontradicted testimony that Penfield, in the absence of Lucbev, expressly directed the purchase of the 8,000 bushels, but the telegram was not produced nor its absence explained. Defendants however made no objection to the evidence.

Upon this state of the proof the court gave these instructions at thé instance of defendants:

1. “That an order to sell corn does not authorize the purchase of corn, and an order to purchase corn does not authorize the sale of such corn when bought; and if you believe from the evidence in this case that when Luekey & Co. ordered plaintiffs to sell corn, the plaintiffs, without other authority or orders, went- on the market and bought that amount of corn and then sold it again, and thereby loss occurred, that such losses can not be recovered of the defendants in this case.
2. “That an order to buy or to sell a certain amount of grain must be strictly complied with in order to charge the party making the order, and an order to sell 10,000 bushels of corn does not of itself authorize the sale of 8,000 bushels, or any other amount than 10,000 bushels, and does not authorize the purchase of grain for the purpose of making such sale; and therefore, if you believe from the evidence in this case that the defendants ordered the plaintiffs to sell 10,000 bushels of corn, and that the plaintiffs thereupon, without other or different authority or orders, went and bought 8,000 bushels of corn or any other amount, and then sold it again, and thereby a loss occurred, the plaintiffs can not recover such loss of defendants.”

We must think these instructions as applied to this case are quite erroneous. There is no dispute that these contracts for sale and purchase were all made in June and July, and were for August delivery ; that the orders wore to contract for the delivery, in August, of 20,000 bushels; that when the time for delivery came plaintiffs had, until they purchased the 8,000 bushels objected to, only 12,000, and that the deficit was due to the neglect of the defendants alone. Having then, at the instance of the defendants, become personally bound to deliver these 8,000 bushels also, the plaintiffs were by these circumstances impliedly authorized to procure them at the charge of the defendants. So that while the legal proposition of the . instruction may be sound in the abstract, it is wrong as applied, in that the hypothesis of fact contained therein wholly ignores these grounds of authority. The assumption* in the second instruction, that upon an order to sell 10,000. bushels the plaintiff sold only 8,000, is altogether unwarranted. They bought 8,000 to make it up, with the 2,000 remaining of the 12,000 after 10,000 were delivered upon the two orders for the sale of 5,000 each; the other 10,000 they were ordered to sell and did sell. ,

From the evidence it is clear to our minds as matter of fact that plaintiffs strictly complied with all the orders given, and ■ as matter of law, without reference to the evidence of Pen-field’s order, that they were fully authorized to make the purchase of the 8,000 bushels.

But the main question is whether these were gambling transactions within the meaning of the statute.

Upon this question three witnesses were examined. Mr. Southworth who was, during the period covered by these transactions and for sixteen years had been in the employ of plaintiff and had kept the accounts between these parties, testified most clearly and positively that these were purchases and sales of grain, actual and bona fide, in contemplation of its delivery and receipt, and not of settlement by payment or receipt of differences of market values, and that warehouse receipts therefor, of the full amount in each case, were delivered or received by the plaintiff; that they had never in any instance, to his knowledge, dealt in options or made contracts‘to be settled by the receipt or payment of differences, and that in these cases they expected and had reason to expect shipments from the defendants to meet the sales; that several ear loads were received by them between the dates of sale and delivery, but with orders accompanying or following each to sell them on the market in order to get the better prices ruling at the time, letting the sales for August delivery stand in the hope of getting enough of other corn in the country to fill them. Mr. Penfield, one of the defendants, testified that he understood and intended these telegrams as orders for real transactions and hot for unlawful options.

Mr. Luckey’s testimony was in the form of a deposition. The most material of the interrogatories, respecting the - several transactions referred to in the items of charge and his answers thereto, were objected to, but admitted. The following, respecting the first, is not an unfair sample. He was asked to “ explain what kind of a contract and transaction this was, and state fully whether you purchased of or sold to the plaintiffs said 10,000 bushels of corn, or whether any corn was in fact bought or sold or not in that transaction,” and answered “ This was an option or future contract. I did not purchase or sell any corn in connection with that transaction, neither did they purchase' or sell any corn on my account in that transaction, nor was there in fact any corn purchased or sold by anybody in connection therewith.”

The item does not import nor was it ever claimed that defendants purchased of or sold to plaintiffs these 10,000 bushels or any other corn. It was hardly within the province of the witness to explain or state of what “ kind ” was the contract or transaction in question. He should have been confined to a statement of the contract or transaction itself, leaving to the jury to determine from the facts, under the instruction of the court, whether it was or was not of the kind known to. the law as option contracts. He could not have personally known, and it does not appear upon what other grounds, if any, he states, what the plaintiffs did not do and what was not done by anybody in connection therewith.

He proceeded to characterize the other transactions here involved in like manner and to tell what were and were not the intentions and acts of the plaintiffs and the other parties to the alleged contracts, as freely as of his own, but does not intimate that he was present on any occasion so referred to, nor state as of his own knowledge any facts throwing light upon anybody’s intentions, except that “ the defendants did not have 10,000 bushels of corn to deliver to King & Go. at that time,” and that King & Co. “ never, at any time, requested or demanded the delivery, neither did they offer to deliver corn to fill” the contract. If he means they never so requested of or offered to the defendants, it is not very cogent, if of or to the other parties to the sale or purchase, it is not clear how he knows.

These opinions and assertions of what he could not know can not be considered as contradicting the testimony of South-worth and Penfield as to what was done and intended. The only other evidence in the case, besides the telegrams mentioned, were some letters of Luckey and a telegram, which were not pertinent to the question.

We think, therefore, that the verdict was clearly unsupported by the evidence, and if not the result of prejudice must be attributed to improper testimony admitted and erroneous instructions given, as above indicated. The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William Carr v. James Barnett.

      Replevin — Statute of Limitations — When Action Accrues — E stray — Irregular Sale.

    Replevin brought to recover a horse ten years after it was irregularly soil as an estray is barred by the Statute of Limitations, the cause of action having arisen at the time of the unlawful conversion of the horse.
    [Opinion filed August 26, 1886.]

      In error to the Circuit Court of Vermilion County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. E. Bookwalter, for plaintiff in error.
    Mr. E. R. E. Kimbrough, for defendant in error.
   Wall, J.

It appeared that some ten years before the suit was brought the defendant took up the horse as an estray, had him appraised, and the animal being offered for sale under these proceedings defendant bought it and had ever since claimed and used it as his own. There was no concealment, fraudulent or otherwise, of his possession and claim, but the facts were unknown to the plaintiff until a short time before the suit was brought.

It was conceded that the law in regard to estrays was not fully complied with and, therefore, the title did not pass by the sale, but it was insisted that the Statute of Limitations of five years was a perfect defense. The court held otherwise and the plaintiff recovered.

If the defendant unlawfully appropriated the property to his own use under a claim inconsistent with that of the plaintiff, he was guilty of conversion and the plaintiff might have immediately brought and maintained trover or replevin without making a demand. 1 Gr. on Ev. Sec. 642; Hilliard on Torts, Vol. 2, Ch. 25; 1 Ch. Pl. 154.

We are of opinion that in this case the cause of action accrued more than five years before the commencement of the suit and the Statute of Limitations was therefore a good defense. The court erred in not so instructing the jury.

The judgment is reversed and the cause remanded.

Reversed cmd remanded.


author: Conger, J.

text:
    Charles E. Rose v. John Day.

      Action for Use and Occupation — Evidence of Title — Implied Agreement to Pay Rent.

    1. Possession for sixteen years, and. the payment of taxes under a claim of ownership, is sufficient evidence of title to sustain an action for use and occupation.
    2. Where it does not appear that a party is an intruder or trespasser •on land, that he holds it against the will of the owner, or that he is to enjoy the land without rent, the law will infer an implied agreement to pay rent.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Calhoun County; the Hon. George W. Herdman, Judge, presiding.
    Mr. J. S. Carr, for appellant.
    To maintain a suit for use and occupation the plaintiff must prove an express contract to pay rent or prove that he is the owner of the land used. Bailey v. Campbell, 1 Scam. 110.
    The action for use and occupation is founded upon a contract, express or implied, and the relation of landlord and tenant must exist between the parties. Dudding v. Hill, 15 Ill. 61.
    It affirmatively appears by the testimony of the plaintiff himself that the defendant was, and had been for five years past, in the possession of the lands for which suit was demanded, and not only refused to pay rent to Day but told him that he, Day, had no right to the land, and there is not even a pretense that he entered under Day. How then can it be said that the relation of landlord and tenant existed between them ?
    Messrs. Brown & Kirby, for appellee.
    The law implied a promise on the part of appellant to pay for the use of the land.
    The use of this strip of land was not adverse to Day but in subordination to his rights. Winslow v. Cooper, 104 Ill. 235.
    The circumstance that the land was not inclosed at the place where it was used by Mr. Rose is not material. Mr. Day had used and rented the other parts of the land continuously for years, and the deed was offered to enlarge the possession. Hubbard v. Kiddo, 87 Ill. 578; Austin v. Rust, 73 Ill. 491.
    The question having been fairly-submitted to the jury, their verdict should be conclusive of the facts.
   Conger, J.

This was an action originally commenced before a Justice of the Peace to recover for the use and occupation of a small piece or strip of land, lying between the street in front of appellant’s store and the Mississippi River, used by the appellant as a landing or place from which to ship apples, and upon which he had wood" piled.

Day had had possession of the quarter section of land of which the premises in controversy formed a part for the past sixteen years, paying all taxes upon it and claiming the whole under a deed purporting to convey the same to him. This was sufficient evidence of title in Day until rebutted to sustain an action for use and occupation. Keith v. Keith, 104 Ill. 397.

The only question of difficulty arising upon the record, is whether, under the circumstances as shown, an action for use and occupation can be maintained. Ho express contract of renting is shown. All that the evidence shows is that appellant had used the premises for five years past, and that a reasonable rent would be $10 per year.

We are inclined to hold, under the authority of Oaks v. Oaks, 16 Ill. 106, that the jury might be warranted in inferring an implied agreement to pay rent. That case holds that, “ when it does not appear that a party is an intruder or trespasser on land, or that he holds it against the will of the owner, or that he is to enjoy the land without rent, the law will infer an implied agreement to pay a reasonable rent therefor.” The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Wall J.

text:
    Michael Kelley v. David Wilson.

      Personal Injury — Action for Damages — Verdict, Sustained by Evidence —Instructions.

    In an action by a coal miner to recover damages for a personal injury caused by the falling of a rock from the roof of the defendant’s mine, it is held:

    That the evidence is sufficient to sustain the verdict in favor of the plaintiff; that an instruction to the effect that if the jury believed any witness had willfully testified falsely they might disregard his testimony except in so far as corroborated by other “ competent ” evidence, is not specially objectionable; and that the court properly refused to give certain instructions asked by the defendant, the point therein contained being fully covered by the instructions given.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Davis & Mann, for appellant.
    Messrs. F. Bookwalter and H. P. Blackburn, for appellee.
   Wall J.

The appellee was a coal miner, and was at work in the mine of appellant.

While passing through an entry going to the room where his work was, a heavy piece of rock fell upon him from the roof inflicting serious injury for which he ’ recovered a verdict and judgment for $1,500.

It is not contended the damages are excessive, hut that upon the facts there is no liability and that the court erred in giving, modifying and refusing instructions.

After thoroughly considering this evidence as presented in the abstract, we are unable to say that it does not warrant the jury in the conclusion that the defendant was guilty of negligence, and that the plaintiff exercised due care. It appears the roof was known by defendant to be unsafe, and no effort was made to prop it with timbers; that on the morning of the accident Henry, the pit boss, whose duties were those of a general superintendent, discovered the dangerous condition at the point in question and tried to remove the loose piece of rock, but being unable to do so passed on to the air shaft and went to the surface that way. He says he wanted to find the men whose business it was to clear away such rubbish, and that the entry was so obstructed by what had fallen that any careful man must have noticed it, and so being warned of the danger, could easily have avoided it. At any rate he gave no notice of it but left it so, and the plaintiff coming along shortly after, was hurt. It was proved that Henry knew of the dangerous condition at this point before. The plaintiff says that, though he knew the general nature of the roof and that there were no timbers in the entry, he did not know that this piece of rock was loose, nor that there was any special danger at that place; that he had his lamp in his cap, was giving no particular attention to the roof, carrying his tools and his dinner pail in his hands, when, without any warning, the rock fell upon him. He distinctly says there was no rubbish or other obstructions in the entry.

It is clear that superintendent Henry knew the danger to which any one coming that way would be exposed, and it is a fair question of fact whether the indications of danger were so patent as to justify him in leaving no other warning. The testimony is conflicting as to this, and we can not say the jury were without warrant in their conclusion, nor can we say that the plaintiff did not use ordinary and reasonable care under the circumstances, for his own protection.

These questions having been determined by the jury upon evidence sufficient to support the finding, we are not disposed to interfere.

It is objected that the court gave the following instruction: “ The court instructs the jury that if they believe that any witness who has testified in this case has testified wilfully false to a matter material in the case, that the jury arc at liberty to disregard his entire testimony, except so far as he may be corroborated by other competent evidence.”

The principle involved here has heen apprdved by the Supreme Court repeatedly, and the criticism upon it by counsel is that the word “competent” is used, leaving it for the jury to determine what is competent and what is not. The adjective “ credible,” is often used in such instructions, sometimes the term “ unobjectionable ” and sometimes “ unimpeached.” Crabtree v. Hagenbaugh, 25 Ill. 233; Yundt v. Hartrunft, 41 Ill. 9 ; McClure v. Williams, 65 Ill. 390 ; Rider v. The People, 110 Ill. 11; Quinn v. Rawson, 5 Ill. App. 130. “ Competent,” as here used, would no doubt be understood to signify “ sufficient ” or “ adequate,” which are among its primary meanings and would refer rather to the effect than the legal quality of the evidence.

We think the instruction should not be condemned on this ground. It is urged it must have been directed at the witness Henry, and that there was no sufficient evidence upon which to base it. Henry was flatly contradicted on a material point, and it may be that if his version was not correct, he was only mistaken, his memory being at fault, or it may be he wilfully misrepresented the fact. Mere contradiction will not impeach. There must be wilful false swearing upon a point material to the issue. While it is through the' medium of contradiction that the conclusion may arise that there was intentional untruth yet in general the conclusion rests mainly upon other circumstances. Begarding the testimony in this case we hold there was enough to justify the giving of the instruction.

It is urged that the court erred in modifying two instructions asked by defendant and in giving them as modified. We think no substantial or important change was produced by the modification in either instance.

It is further insisted the court erred in refusing two instructions asked by defendant upon the question of the care which was required of the plaintiff. We think the law on this subject was fully and fairly presented in other instructions.

Counsel especially urge that the second refused instruction was faultless.

Assuming it was, the point was as well made for all practical purposes in the others, which called the attention of the jury to the special matters wherein the exercise of care was needed, and suggested in plain terms the supposed matters wherein, from the standpoint of'defendant and upon his theory of the case, might be found the proof of plaintiff’s contributory negligence.

It is not to be supposed the verdict would have been different if these instructions had heen given, and as the point contained in them is found in those given, their refusal is not error. Ho other objections are made in the argument for appellant.

The judgment will be affirmed.

Affirmed.


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    Frederick Aholtz v. James F. Durfee.

      Ejectment — Neiv Trial — Delay in Paying Costs — Insufficient Excuse.

    Upon petition for the vacation of the judgment and for a new trial in an action of ejectment, it is held that a failure to pay the costs for more than a year after the close of the term at which the judgment was rendered is not sufficiently excused by an allegation that the clerk had not computed the amount thereof because of the absence of the files in the hands of some unknown person, it not appearing that the petitioner had used due diligence.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    Mr. H. Pasco, for appellant.
    Inasmuch as the statute allows a new trial as a matter of right within a year from the rendition of the judgment, and that in the discretion of the court another new trial might be had within a year from the rendition of the second judgment,, the court may grant a trial at any time within two years from the rendition of the first judgment. A failure to pay the costs within a year from the rendition of the first judgment is not a bar to a new trial, provided the costs are paid and petition for a new trial filed and motion entered after the expiration of one year, and within two years from the date of the rendition of the first judgment. Riggs v. Savage, 2 Gil. 400; Chamberlin v. McCarty, 63 Ill. 262; Myers v. Phillips, 68 Ill. 269; Shackleford v. Bailey, 35 Ill. 387; Stoltz v. Drury, 74 Ill. 107; Rountree v. Talbot, 89 Ill. 246.
    Messrs. Outten & Vail, for appellee.
    A party, where there is a judgment in ejectment against him, can not make a motion under the statute for a new trial during the year, and then after the year is up wait indefinitely to pay the costs, say six months, one year, or two years, at his pleasure, and then re-try the case. Pugh v. Reat, 107 Ill. 440; Oetgen v. Ross, 36 Ill. 335.
   Wall, J.

At the May term, 1881, of the Macon- Circuit Court, the defendant in error recovered a judgment in ejectment against the plaintiff in error for a lot in the city of Decatur.

On motion of plaintiff in error entered at the same term,, a new trial was granted under the statute upon payment of costs to be made within three months.

The costs were not paid until December 2,1882 — more than, a year after the close of the term at which the judgment was rendered. Application was made to the Circuit Court at the February term, 1883, based upon this payment, for an order vacating the judgment of the May term, 1881, and for a new trial of the case, which was denied, and the record having been brought here by writ of error we are asked to review this ruling of the Circuit Court.

In the sworn petition filed with the application it was alleged; as-an excuse for not sooner paying the costs that the clerk had not until that day computed the amount thereof, and that' until so computed the plaintiff in error did not know how much it was, and hence could not pay the costs because he did not know the amount.” Coupled with this is a statement that, as he believes, the papers in the case were taken out of the-clerk’s office about the time of the trial by some unknown person, and because of the absence of the files the clerk could not make up the fee bill and let him know the amount so he could pay, etc.

This statement is quite indefinite. It does not appear how long the papers' were absent, nor does it anywhere appear that plaintiff in error ever requested the clerk within the proper time to make up the fee bill, or that if he had done so the clerk could not have obtained the papers or make the necessary computation. Had such an effort been made and the payment of costs prevented, and thereby the rights of the plaintiff in error unduly prejudiced, a different case would exist. But, conceding that in such a case relief could be granted in the way here ado¡Dted, we are of opinion the petition did not disclose necessary diligence on the part of plaintiff in error, and for that reason," if for no other, the application was properly denied.

Affirmed..


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    Margaret A. Haldeman et al. v. Massachusetts Mutual Life Insurance Company.

      Usury — Broher’s Commissions — Foreclosure—Solicitor's Fees — Practice —Objection not Raised Beloiv.

    1. It is a well established rule in this State that brokers, in negotiating loans of the money of others, may charge the borrower commissions without thereby making a loan, at the full rate of legal interest usurious.
    2. Upon the foreclosure of a mortgage the decree may include a solicitor’s fee if the mortgage so provides.
    3. An objection not raised in the court below may be ignored by this court.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.

      Mr. Thomas F. Tipton, for plaintiff in error.
    Mr. A. E. DeMange, for defendant in error.
    “ The fact that an agent without the authority, knowledge or consent of his principal upon loaning the money of the latter exacts from the borrower a sum in excess of the lawful interest does not make the loan usurious.” Cox v. Mass. Mut. L. Ins. Co., 113 Ill. 382; Phillips v. Roberts, 90 Ill. 492; Hoyt v. Pawtucket, 110 Ill. 390.
    There is no principle of law which requires that an individual or corporation having money to loan should be compelled to refuse an application offered it because the broker sending the application may charge the applicant a commission for his services. So long as there is no agreement between the loaner and broker — no actual knowledge — the transaction can not be usurious. Hoyt v. Pawtucket, 110 Ill. 390; Payne v. Newcomb, 100 Ill. 611.
    The objection to the allowance of solicitor’s fees can not be raised here for the first time. K. & I. R. R. R. Co. v. Chester, 62 Ill. 235; Elgin v. Kimball, 90 Ill. 356; R., R. I. & St. L. R. R. v. Beckemeier, 72 Ill. 267.
    Parties are concluded by the master’s report where no exceptions are interposed. Jewell v. Rock River Paper Co., 101 Ill. 57; Pennell v. Lamar Ins. Co., 73 Ill. 303.
   Wall, J.

The principal question in this case is whether the transaction disclosed a violation of the statute against usury.

It appears that Tillotson and Waite and Tillotson and Fell were engaged in the business of insurance agents and loan brokers in the city of Bloomington. The appellee, an insurance company whose home office is in the State of Massachusetts, made these men their agents for insurance at Bloomington and frequently furnished them with money to be loaned in that locality.

It was customary for one wishing to borrow money to make an application containing the necessary information as to the proposed, security, etc., etc., and if the application was approved by the company the money would be forwarded to the broker who would pay it over to the borrower, less the commission which had been agreed on by the borrower and the broker at the beginning. It did not appear that the lender had anything whatever to do with this matter of commission, nor does it even appear that he knew of it in any instance. Of course it would be presumable in such a case that the broker was to be compensated by the borrower. The business was thus conducted for years, money being furnished repeatedly by the appellee and by other parties having money to loan upon such applications, the lender in no instance paying anything for the services of the broker. Such a transaction occurred when the debt involved here was originally contracted, and when it matured a renewal was effected through these brokers for which they made a charge, which also was paid by the borrower, but so far as shown by the evidence without the knowledge of the lender.

The appellants now testify that they considered the brokers to be not their agents but the agents of the appellee. On the other hand the brokers and the executive officers of the company testify that the brokers were understood to be the agents of the borrowers.

We think the evidence fully justifies the latter view, and that it is quite consistent with common experience and obser-1 vation. The broker might be the agent of one or the other, or of both parties, and in conducting a negotiation resulting in a loan he would naturally be trusted and depended upon to some extent by' both.

For example, if he is the agent of the borrower, the lender might not hesitate to send him the money direct and rely upon him to see that all the formalities necessary to render the loan legal and the security binding were complied with according to law.

In such a case it would be an unreasonable stretch to say that the lender had received some incidental service which he had not paid for but which the broker was willing to perform because of his commission which was paid by the borrower, and therefore the transaction was tainted with usury. While the courts have ever held that no shift or device to evade the laws against usury can be tolerated, yet this statute is to be administered according to its spirit and interest and to reach the object which the Legislature designed to accomplish.

Th§ history of such laws shows many differences of opinion as to the ground upon which and the purposes for which they have been enacted. One writer has said that a host of great names from'Aristotle to Potier might be cited who rank all interest of money under the name of usury, and condemn it, but the sense of mutual benefit has on this point resisted with equal firmness the decrees of the church and the speculations of philosophers, and a regulated and reasonable interest has had the sanction not only of our own municipal Jaw, but of the most cultivated and enlightened human reason. Lord Bacon, in discussing the subject, concludes that two things are to be reconciled, “ the one, that the tooth of usury be grinded, that it bite hot too much; the other that there be left open a means to invite moneyed men to lend for the continuing and quickening of trade.” It is a justification for such laws that according to all experience unlimited usury leads to unlimited oppression, and that the extortion of the creditor and the resistance of the debtor tend to produce an unhealthy condition of trade and business, and no other will perhaps be generalljr accepted at the present day. It is purely a question of policy and expediency to be determined from the standpoint of the public good. The law, then, fixes the rate which must not be exceeded and will permit no evasion, but it will not be captions, and anxious to infer a design to evade'where none existed, nor will it ingeniously build up a superstructure of usury upon an unsubstantial foundation. It is a well established rule in this State that brokers negotiating loans of other people’s money may charge the borrower commissions without thereby making a loan at the full rate of legal interest usurious. Ballinger v. Bourland, 87 Ill. 513; Phillips v. Roberts, 90 Ill. 492; Boylston v. Bain, 90 Ill. 283; Hoyt v. Pawtucket Ins. Co., 110 Ill. 390; Cox v. Mutual Ins. Co., 113 Ill. 382; Callender v. Roberts, 17 Ill. App. 539.

The case at bar is in its facts very much like the case of Cox v. M. I. Co., 113 Ill. 382, and what is there said is strongly in point, if not absolutely controlling here.

There was no error in the decree upon this point. It is assigned as error that the decree includes the sum of $100 for the solicitor’s fee of complainant which is taxed as a part of the cost of the case. The mortgage contains a clause expressly authorizing this to be done. It provides that “it (fee $100) shall be added to, and become a part of the debt hereby secured to be included as a part of the judgment or decree, or to be taxed as a part of the costs of such suit, as the court may elect.”

A similar provision was held sufficient to support the decree in Dana v. Rodgers, 43 Ill. 260, and there seems to be no reason why the stipulation may not be enforced according to its terms. See also Ball v. Miller, 38 Ill. 110.

It does not appear, however, that this objection was made specifically in the answer, or that by any other appropriate mode it was brought to the attention of the court belo.w, although the claim was distinctly made in the bill.

Therefore, if the objection were tenable, it might well be held that it could not be presented here for the first time.

The decree will be affirmed.

Affirmed.


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    David H. Harts and Stephen A. Foley v. James S. Jones and James A. Emmons.

      Sales — Fraud—Possession Retained by Vendor — What Amounts to, Change of Possession.

    1. An absolute sale of personal property which is capable of removal,, but which is not removed from the possession of the vendor, is fraudulent as against creditors and subsequent purchasers, although made in good faith and for an adequate consideration.
    2. This rule is held to apply to a lot of corn plows separated from the vendor’s stock, and also to another lot so separated and placed in a separate building rented for the purpose, but remaining under his control.
    [Opinion filed August 26, 1886.]

      Appeal from the Circuit Court of Logan County ; the Hon. G. W. Herdman, Judge, presiding.
    Statement hy Conger, J. In the fail of 1884 Harts and Foley contracted with Jacob Mangas to construct for them 100 corn plows at §15.50 each, §9 to be paid in cash and $6.50 to be credited on the account Mangas owed them, such payments to be made as the plows were completed. Payments were made from time to time as the plows were completed. Some time in the spring of 1885 Mangas told appellants that the plows were in his way and he was told by Harts to rent a building called the Primm Building, which( stood just across the alley running in the rear of the lot on which Mangas’ shop stood. Mangas rented such building, but says he does not know that he told Primm at the time for whom he was' renting. Seventy of the plow's were completed, except they were not put together and had no shovels, and in such condition were stacked up in the Primm building. The other thirty had no shovels and lacked one coat of paint, which Mangas was to put on when the plows were sold or shipped, and in that condition were stacked up on the back end of Mangas’ lot in a separate row or stack from any others, although there were other plows of a similar character on the back end of Mangas’ lot near to those in controversy. Man-gas says he remained in control of the Primm building and went in and out of it.
    About the last of February, 1885, Mangas notified appellants that the plows were completed, when they went to his shop, went into the Primm building, counted the plows there, seventy in number, and thirty outside on the rear end of Mangas’ lot, and settled with Mangas-in full for the 100 plows.
    For about three weeks in April and May, 1885, Mangas, by the authority of appellants, sold eighteen of these plows, taking notes (when cash was not paid) in his own name, and afterward assigning them to appellants. Appellants and Mangas testify that after the settlement in February the plows were considered by all of them to be the property of appellants.
    While the property was in this condition appellees levied upon it as the property of Mangas by virtue of executions against him, and appellants seek to recover the property by writ of replevin.
    • The Circuit Court found that the property was liable to the debts of Mangas and that no sufficient delivery had been made to enable appellants to hold the property as to creditors of Mangas.
    . Mr. E. E. M. Cochead, for appellants.
    Under a contract of sale, where nothing remains to be done on the part of the seller, in the way of ascertaining, appropriating, or delivering the property sold, the title to it, inde.pendently of the Statute of Frauds, immediately vests in the .buyer, unless it can be shown that such was not the intention of the-parties. Townsend v. Hargraves, 118 Mass. 325; Lester v. East, 49 Ind. 588; Terry v. Wheeler, 25 N. Y. 520; Marble v. Moore, 102 Mass. 443; Thorndike v. Bath, 114 Mass. 116; Arnold v. Delano, 4 Cush. 40.
    The evidence clearly shows that appellants’ plows were separated from all other plows, seventy of them being placed in a separate building rented by appellants, across the alley from the lots occupied by Mangas, and thirty tongues with axle attachment were stacked up in a row on the back part of Mangas’ lots, near the Primm building. What better evidence could be offered to show the intention of the parties to vest the title in the appellants than counting, examining, receiving, separating and paying for the property ? See Straus v. Minzesheimer, 78 Ill. 492, and cases there cited.
    The appellants had the right, after they had taken possession of the plows and paid for the same, to employ Mangas to sell the plows for them, without thereby subjecting them to a lien in favor of the creditors of Mangas. Wright v. Grover, 27 Ill. 426.
    The putting on of one coat of paint on a part of the plows .had nothing to do with the determining the number, quality, identification, price or possession of the chattels, as all of that had been done before, and nothing remained to be done toward the completion of the contract. Shelton v. Franklin, 68 Ill. 333; Bertelson v. Bower, 81 Ind. 512.

      Messrs. Beach & Hodnett, for appellees.
    Even if, as between the vendor and vendee, the tit1 e to personal property has passed to the vendee, still there must be an actual delivery of the possession of -the property to the vendee, and it must be removed, if capable of removal, to bind subsequent purchasers, or execution or attachment creditors. Thompson v. Wilhite, 81 Ill. 356; Ticknor v. McClelland, 84 Ill. 471; Thompson v. Yeck, 21 Ill. 73 ; Curren v. Bernard, 6 Ill. App. 341; Lewis v. Swift, 54 Ill. 436; Thornton v. Davenport, 1 Scam. 296; Kitchel v. Bratton, 1 Seam. 300 ; Richardson v. Rardin, 88 Ill. 124; Updyke v. Henry, 14 Ill. 378; Burnell v. Robertson, 5 Gilm. 282; Lafever v. Mires, 81 Ill. 456.
    The- title to personal property does not pass to the purchaser, as between vendor and vendee, by virtue of the contract, until the contract is completed and nothing remains to be done under the agreement. Schneider v. Westerman, 25 Ill. 514; O’Keefe v. Kellogg, 15 Ill. 347; Frost v. Woodruff, 54 Ill. 155.
   Conger, J.

We are inclined to think there was not such a delivery of the plows in question1 as would pass the title to appellants, as to the creditors of Mangas.- “Any absolute .sale of personal property which is of such a character as to be capable of being removed, where it remains with the vendor, is fraudulent in law as to creditors and subsequent purchasers, notwithstanding the sale may be in good faith and for an adequate consideration.” Thompson v. Welhite, 81 Ill. 356 ; Ticknor v. McClelland et al., 84 Ill. 471.

The property was all capable of removal, and of being placed where no°one would be misled as to the transfer of possession from Mangas to appellants." As we understand the rule supra, it means a removal which shall be visible and apparent to the world — one that shall apprise the public that there has been a change of possession.

Had the possession, and control of the Primin Building been clearly in appellants, or some third party, the case would have been different. While Mangas and the appellants testify that such building was rented at their request, and doubtless as between theihselvcs was so understood, yet, in fact, Mangas remained in control of it and there was nothing to apprise the public of anything to, the contrary.

The same may be said of the plows stacked upon the rear end of Mangas’ lot. To Mangas and the appellants their separation from the other'plows might be quite apparent and sufficient for their purpose but it would not apprise strangers of any change of ownership or possession.

We think the judgment of the Circuit Court was right and it will therefore be affirmed.

Affirmed.


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    Robert Stubblefield v. Pelig Soule.

      Landlord and Tenant — ■Action against Tenant for Breach of Covenants of Lease — -Recoupment—-Practice.
    In an action on a lease against, a tenant to recover damages for a breach of its covenants, the defendant may introduce, by way of recoupment under the general issue, evidence tending to show that the plaintiff had represented the roof to be in good condition, but that it was leaky and the defendant’s goods were injured in consequence.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Blades & Neville, for appellant.
    Messrs. Kerrick, Lucas & Spencer, for appellee.
    The rejected evidence amounts to a charge of fraud on the part of appellee in procuring the appellant to accept the lease and fraud as a defense must be ¡headed. Kirkland v. Lott, 2 Scam. 13; Anderson v. Jacobson, 66 Ill. 522; Elston v. Blanchard, 2 Scam. 420; Fitzpatrick v. Beatty, 1 Gilm. 454; Newell v. Supervisors, 37 Ill. 253; Klein v. Horine, 47 Ill. 430; Jones v. Albee, 70 Ill. 34.
    The evidence was not admissible under the general issue without notice, it not appearing and no claim being made that it went to appellee’s entire cause of action. McCullough v. Cox, 6 Barb. 386; Mayor v. Trowbridge, 5 Hill, 68; Whitbeck v. Skinner, 7 Hill, 53; Heaston v. Colgrove, 3 Ind. 265; Estep v. Morton, 6 Ind. 489 ; Sedgwick on Measure of Damages, 435.
   Conger, J.

This was an action by appellee upon a lease; the declaration averring that the premises described in the lease were in good repair when taken by appellant, and that they were injured by him while in possession, and that he did not trim the hedges 'and haul out the manure as he had covenanted to do in the lease. To this declaration a plea of the general issue was tiled.

By way of recoupment under the general issue, the appellant proposed to prove “ that the plaintiff represented to him before entering into the lease that the roof of the dwelling house was in good condition, and that it was not and that plaintiff knew it was not, and that on account of the leaky condition of the roof the furniture and carpets of the defendant were damaged, and that on account thereof the plaintiff was obliged to move out of the house, and did move out about the first of January before the expiration of the lease.”

Upon objection being made by appellee the court excluded this evidence, and as we think, erroneously.

In Stow v. Yarwood, 14 Ill. 424, which was an action of trover, the plea was, as in this case, the general issue, and the court say: “ The principle deducible from the adjudged cases is, that mutual demands arising out of the same subject-matter and capable of being balanced against each other, may be adjusted in one action. One demand is considered as reduced or liquidated by the other, and the surplus is regarded as the real cause of action. This doctrine , of recoupment tends to promote justice and prevents needless litigation. It avoids circuity of action and a multiplicity of suits. A claim originating in contract may be set up against one founded in tort.”

If appellee falsely represented to appellant that the roof of the dwelling house- was in good condition when it was not, and appellant was thereby damaged, such damages, in our opinion, could be recouped in the present action. Borroughs v. Clancy, 53 Ill. 30.

It would reduce or liquidate the demand of appellee to the extent that such damages might be allowed, and would therefore be proper under the general issue. Babcock v. Trice, 18 Ill. 420; Murray v. Carlin, 67 Ill. 286; Cooke v. Prebble, 80 Ill. 381.

For the error in excluding this evidence, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    City of Springfield v. City of London Insurance Company.

      Special Tax on Insurance Companies — Power of Municipalities to Levy —Statutes—Repeal—Office of Proviso.

    If Ill, Sec. 23, Ch. 24, Starr & C. Ill. Stat., authorizing municipalities having fire departments to tax foreign insurance companies, is repealed by If 32, Sec. 30 Oh. 73, such power being saved only to municipalities to which it has been expressly granted by statute.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Sangamon County: the Hon. James A. Creighton, Judge, presiding.
    Statement of the case by Conger, J. This is an action of debt by the city against a fire insurance company not incorporated under the laws of Illinois, to recover two per cent, upon the gross receipts of the company for the year 1885. The declaration contains two counts, both making proper allegations as to the defendant being a foreign 'fire insurance company, and that it did business in the city in 1885 of §5,000 in premiums, and that during all of that time and for many years before, the city kept and maintained an organized fire department. The city is incorporated under the general law.
    The first count avers that by an ordinance of the city then (1885) and still in force, it was provided that foreign insurance companies engaged in effecting fire insurance in said city should pay into the city treasury two dollars upon the hundred dollars, and at that rate upon the amount of all premiums paid or agreed to be paid for insurance in said city, payments to be made on January and July 1st each year, and that the sums so received should be set apart for the support and maintenance of the fire department of said city.
    The second count avers that previous to 1885 the city levied upon the gross receipts of all such companies a tax or license fee of two dollars upon t.he hundred of premiums, to be paid January and July 1st each year, to be devoted exclusively to the support of the fire department.
    Both counts allege the premiums were the gross receipts, and both allege the failure of the company to pay.
    A general demurrer was interposed to the declaration and sustained, and the city electing to stand by it, judgment was rendered against the city for costs.
    Messrs. Greene, Burnett & Humphrey, for appellant.
    Mr. James C. Conkling, for appellee.
   Conger, J.

We are of opinion that the action for the two per cent, of the gross receipts of the insurance company can not be maintained for the reason there is no existing law justifying it.

In the general law there was formerly a provision (Chap. 24, Sec. Ill, Starr & Curtis,) which declared that “ All corporations, companies or associations, not incorporated under the laws of this State, engaged in any city in effecting fire insurance, shall pay to the treasurer the sum of $2 upon the $100 of the net receipts by their agency in such city, and at that rate upon the amount of all premiums which, during the half year ending on every first day of July and January, shall have been received for any insurance effected or agreed to be effected, in the city or village, by or with such corporations, companies or associations respectively. * * * Provided, that this section shall only apply to such cities a,nd villages as have an organized fire department, or maintain some organization for the prevention of fires.” This is the only authority we have been able to -find justifying the city in passing the ordinance in question, and this is unquestionably repealed and abrogated by Sec. 30 of Chap. 73, passed in 1879, and in force July 1, 1879.

This section provides that Every agent of any insurance company * * * shall return to the proper officer * * the amount of the net receipts of such agency for the preceding year, which shall be entered on the tax list * * * and subject to the same rate of taxation, for all purposes, State, county, town and municipal, that other personal property is subject to at the place where located; said tax to be in lieu of all town and municipal licenses, and all laws and parts of laws inconsistent herewith are hereby repealed: Provided, that the provisions of this section shall not be construed to prohibit cities having an organized fire department from levying a tax, or license fee, not exceeding two per cent., in accordance with the provisions of their respective charters, on the gross receipts of such agency, to be applied exclusively to the support of the fire department of such city.”

It is clear to us that the intention of the Legislature in the Act of 1879 was in lieu of every species of municipal tax or license, to subject the net receipts of insurance companies of the agency within the county, town or municipality, to the same rate of taxation as other personal property.

But it is insisted that the provision to this section gives the power to all cities, having an original fire department, to levy a tax or license fee of two per cent, on the gross receipts of the agency.

We can not assent to this view. In Minis v. U. S., 15 Pet. 433, it is said: “ The office of a provision is, generally, either to except something from the enacting clause, or to restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the Legis-' lature to be brought within its purview.” In Boon v. Joliet, 1 Scam. 258, it is said: “ A provision in a statute is intended to qualify what is affirmed in the body of the act, section or paragraph preceding it.”

We hold that Sec. 30 of Chap. 73 repealed Sec. 110 of Chap. 24, and the provision at the end of Sec. 30 only has the effect to save the power of levying the two per cent, upon gross receipts, “in accordance with the provisions of their respective charters,” and is to be construed as saving such power only to those cities whose charters had a special power of the kind in them at the time of the passage of the act; but it was not intended to create or confer such a power upon other cities. In other words, it saved the power to those municipalities expressly having it by their charters, but did not confer it upon others.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Congee, J.

text:
    The Northwestern Benevolent and Mutual Aid Association of Illinois v. Sarah W. Bloom.

      Life Insurance— Suicide — Construction of Application and Certificate Together as one Instrument — Pleading.
    1. In an action brought on a certificate or policy of life insurance, the assured having committed suicide, it is held that the application, containing a stipulation excepting death from suicide from the risk, must be construed with the certificate as one instrument.

      2. An allegation that the assured “ did then and there immorally, wrongfully and wickedly” commit suicide, is substantially an allegation that he committed the act while sane,
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Carter & Grover and T. B. Pape, for appellant.
    The agreements contained in the application are made warranties by the clause in the certificate referring to them. Blisson Life Ins. 85, and cases cited in note 2; Kelsey v. Universal L. Ins. Co., 35 Conn. 225; Fame Ins. Co. v. Thomas, 10 Ill. App. 545; S. C., 103 Ill. 91; Miles v. Conn. Mut. L. Ins. Co., 3 Giay, 580.
    If they should be considered representations, they are as a-matter of law'made conclusively material. Fame Ins. Co. v. Thomas, 10 Ill. App. 545; Price v. Phoenix Mut. L. Ins. Co., 17 Minn. 497; S. C., 10 Am. Rep. 166; Campbell v. New Eng. Mut. L. Ins. Co., 98 Mass. 381; Jeffries v. Life Ins. Co., 22 Wall. 47.
    The failure to perform a material promissory representation avoids the policy. Schultz v. Mut. L. Ins. Co., 6 Fed. Rep. 672; Houghton v. Manufacturers Mut. L. Ins. Co., 8 Met. 114; Clark v. Manufacturers Ins. Co., 8 How. 235; Kimball v. Ætna Ins. Co., 9 Allen, 540; Blumer v. Phoenix Ins. Co., 45 Wis. 622; S. C., 48 Wis. 535; S. C., 33 Am. Rep. 830.
    The language of the certificate makes the performance of the agreements in the application a condition precedent to the enforcement of the contract. Schultz v. Mut. L. Ins. Co., 6 Fed. Rep. 672; See also Insurance Co. v. Trefz, 104 U. S. 197.
    Where two instruments' are executed as parts of the same transaction, whether at the same or different times, they will be taken and construed together as one instrument. Neil v. Chessen, 15 Ill. App. 266; Hunt v. Frost, 4 Cush. 54; Stacy v. Randall, 17 Ill. 467; Gardt v. Brown, 113 Ill. 475; Torrence v. Shed,. 112 Ill. 466.

      The application in this case is not merged in the certificate of membership, but together with that forms the contract of insurance. It contains the agreements entered into by the insured, while the certificate contains the obligations assumed by the benevolent association. Supreme Council of Royal Templars of Temperance v. Curd, 111 Ill. 284; Caffery v. John Hancock L. Ins. Co., 17 Fed. Rep. 25; Grattan v. Metropolitan L. Ins. Co., 92 N. T. 274; Blooming Grove Mut. F. Ins. Co. v. McAnerney, 102 Pa. St. ,335.
    Sanity will be presumed, and if insanity be relied on to avoid the consequences of suicide, it must be pleaded and proved. Weed v. Mut. Ben. L. Ins. Co., 70 N. Y. 561; Phadenhauer v. Germania L. Ins. Co., 7 Heisk. 567; S. C., 19. Am. Rep. 623; Knickerbocker L. Ins. Co. v. Peters, 42 Md-414.
    The contract sued on in this case is a contract with the insured, and not with the beneficiary. Highland v. Highland, 109 Ill. 366; S. C., 13 Ill. App. 510; Johnson v. Van Epps, 110 Ill. 551; S. C., 14 Ill. App. 201.
    The beneficiary is bound by all of the covenants and agreements contained in the contract. Caffery v. John Hancock Mut. L. Ins. Co., 27 Fed. Rep. 25; Fitch v. Am. Pop. L. Ins. Co., 59 N. Y. 557.
    Mr. J. F. Cabeott, for appellee.
    The plaintiff need not aver the truth of statements contained in the application.. Herron v. Peoria Mar. and F. Ins. Co., 28 Ill. 235; M. B. L. Ins. Co. v. Robertson, 59 Ill. 123; Piedmont Ins. Co. v. Ewing, 92 U. S. 377.
    The plaintiff need not aver the performance or non-performance of conditions subsequent. Forbes v. Am. Mut. L. Ins. Co., 15 Gray, 249; Ætna Ins. Co. v. Phelps, 27 Ill. 71.
    Nor the performance or non-performance of negative prohibited acts. Hunt v. Hudson Riv. F. Ins. Co., 2 Duer, 481. Troy F. Ins. Co. v. Carpenter, 4 Wis. 20.
    Nor need he allege that he is within the excepted risks. Lounsbury v. Protection Ins. Co., 8 Conn. 458; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416.

      The certificate contains no warranty. The authorities define a warranty in insurance to he a part of the contract, evidenced by the policy, and a binding agreement that the facts stated are strictly true. 1 Phil. on Ins., 5th Ed., Secs. 754, 756; Flanders on Ins., 204-5.
    To constitute a warranty it must be contained in the policy; or if contained in another instrument it must be made part of the policy by the agreement contained in the policy. Wall v. Howard Ins. Co., 14 Barb. 383.
    A representation in insurance may, for the purpose of this case, be defined to be a statement in regard to a material fact made by the applicant for insurance to the insurer, with reference to a proposed contract of insurance. 1 Phil, on Ins., Sec. 524 et seq.

    As representations simply, they are not a part of the contract of insurance. Flanders on Ins., 201, and cases cited; Campbell v. New Eng. Mut. L. Ins. Co., 98 Mass. 381.
    A representation is of some matter extrinsic to the contract, and generally, if not always, relates to the present state and condition of the subject insured. Alston v. Mechanics Mut. Ins. Co., 4 Hill, 330.
    A stipulation or representation relied upon as a warranty should either be written in the policy, or expressly made a part of it; for the policy is the only legal evidence of what the contract is. Dow v. Whetten, 8 Wend. 160; Jennings v. Chenango Co. Mut. Ins. Co., 2 Den. 75; Am. Life Ins. Co. v. Day, 39 N. J. L. 89; M. B. L. Ins. Co. v. Robertson, 59 Ill. 123.
   Congee, J.

On the 3d day of March, 1882, Lewis H. Bloom made application for a certificate of membership in the appellant company upon one of the printed forms prepared by the company, which, after giving a number of answers as to the condition of his health, family, etc., contained the following claim: “It is expressly stipulated and agreed that the foregoing application and declaration shall be the basis of the contract between the above named applicant and ■the Horthwestern Benevolent and Mutual Aid Association of Illinois, said contract not to be in force or binding upon the association until after the payment of the membership fee and the approval of the application by the medical director, and that if any misrepresentations or fraudulent or untrue answers have been made, or any facts which should have been stated have been suppressed, if death should result from suicide, or if he or she shall omit, neglect or refuse to pay any of the assessments on or before the day on which they shall fall due then, and in either event, this agreement shall be null and void, and all money which shall have been paid shall be forfeited to the association.”

(Signed) “ Lewis H. Bloom.”

Upon this application, on March 8, 1882, the association issued a certificate of membership providing for the payment within sixty days after the death of said Bloom, to his wife, Sarah W. Bloom, appellee herein, $2,000.

The said certificate or policy contained this clause: “ This certificate is issued upon the condition that the said Lewis H. Bloom shall comply with the constitution and by-laws of the association, and that the statements in the application for this certificate arc true.”

Bloom died and his wife brought suit upon the certificates and to the declaration appellant filed eight special pleas, setting up in a variety of ways, as a defense to the action, the suicide of Lewis H. Bloom.

‘ In the first special plea the language in which the suicide is charged, is, “ Did wrongfully, and to the injury of the defendant, commit suicide.” In the second, “ He, the said Lewis H. Bloom, committed suicide, and the death of him, the said Lewis H. Bloom, did then and there result from said suicide.” In the third the language is, Did then and there, immorally, "wrongfully and wickedly, for the purpose of destroying his life, strangle himself by means of hanging himself by the neck until he was dead.” In the sixth and seventh, the language is, “Wrongfully, wickedly and fraudulently, and of his own volition, committed suicide.”

The eighth special plea sets forth the clause above quoted of the application, avers it to be a part of the contract of insurance, and a part of the policy or certificate, and concludes with the charge of suicide .upon the part of Bloom.

A demurrer was filed to all these pleas and sustained by the court; appellant refusing to answer further judgment was rendered against it for $2,162.20. It is claimed by appellee, “that the application not being incorporated into the certificate, and not being expressly referred to in it, so as to make it a part and parcel thereof, should not be considered in construing the contract between these parties.”

We are of opinion that the application and certificate were executed as parts of the same transaction; that they should be taken and construed "together as one instrument, and that the true nature of the contract entered into can be determined only by considering the mutual undertaking of both parties as set forth in both. Stacy v. Randall, 17 Ill. 467.

In the language of Boyal Templars of Temperance v. Curd, 111 Ill. 288, “ the first part of this contract — the part obligatory upon the beneficiary — is the application of Lewis H. Bloom.”

It is plain and simple in its language, and can not be misunderstood. It contains this: “It is expressly stipulated and agreed that the foregoing application and declaration shall be the basis of the contract, * * * that if death should result from suicide * * * then this agreement shall be null and void.” What agreement is meant? Certainly not the application, for that is not in itself a contract but simply a proposal on the part of Bloom. The agreement that is to become null and void in case of suicide by Bloom is the mutual and entire contract of insurance entered into by both parties, and set forth and contained in both the application and certificate.

Beither is it important to determine whether the performance of the agreement, contained in the application, not to commit suicide, is or is not a condition precedent to the enforcement of the contract. Appellant is not now relying upon that point even if true, nor complaining because the declaration does not aver a compliance with the provision, but by its pleas, itself brings it forward and sets it up as a defense.

It is also objected that none of the pleas expressly allege that Bloom committed suicide when sane. We are inclined to think, however, that after construing the language used by the pleader most strongly against him, there can be no reasonable doubt as to the meaning upon this point of the third, sixth and seventh pleas.

In the third, the language is, “ Did then and there immorally, wrongfully and wickedly ” and in the sixth and seventh, Wrongfully, wickedly and fraudulently, and of his own volition, commit suicide.”

These expressions can not properly be used in reference to the act of an insane man. One whose reason is dethroned, and who is acting from an insane delusion, does not act immorally, wrongfully, wickedly or fraudulently. We-think these pleas do substantially, and not merely argumentatively, allege that Bloom committed suicide when sane, and in his right mind, and therefore do allege such a violation of the contract as, by its terms, renders it null, and void.

We think the Circuit Coxirt erred in sustaining the demurrer to these pleas, and the judgment of the Circuit Court will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Margaret Foster v. Henry C. Latham.

      Certificate of Acknowledgment — How far Conclusive — Surplusage— Holder of Notes Secured by Trust Deed as Trustee.

    1. In the absence o£ proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, his certificate in proper form must prevail over the unsupported testimony of the grantor that the same is false and forged.
    2. The use of the word “ notarial ” before the word “ seal," in a certificate of acknowledgment of a Justice of the Peace, is surplusage, and does not invalidate the certificate.
    3. The holder of notes secured by a trust deed may be the trustee therein.

      [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Sangamon County; the, Hon. J. J". Phillipps, Judge, presiding.
    Messrs. Orendorff & Patton, for plaintiff in error.
    The evidence does not warrant the master in chancery in finding that Margaret Foster ever executed the trust deed in question to Henry C. Latham.
    In proof that she did, complainant relies solely upon the recitals of the notary public, John D. Keedy. There is no proof that he was at the time such an officer. There is no seal of any such officer attached. Surely such a recital, unauthenticated by a seal, can not prove the execution of said instrument or deed. Margaret Foster, not being proven to have ever waived her homestead and dower right, ought not to have had her rights foreclosed under this trust deed. Holbrook v. Nichol, 36 Ill. 161.
    A trustee is agent of both cestui que trust and beneficiary. 2 Perry on Trusts, 156; Clarke v. Wilson, 53 Miss. 119; Ashuelot R. R. Co. v. Elliott, 57 K. H. 397; McGovern v.. Knox, 21 Ohio St. 547; Jones on Mortgages, Secs. 1770, 1771.
    He can not acquire interests hostile to the interests of the cestui que trust. Lee v. Fox, 6 Dana, 172; Chapin v. Weed, 1 Clark, 464; G., C. & S. R. R. Co. v. Kelly, 77 Ill. 426.
    A trustee in a deed of trust for security is subject to the same rules that govern all trustees. Perry on Trusts, Sec. 602.
    Messrs. Matheny & Matheny, for defendant in error.
    The word “ notarial ” is surplusage, and surplusage in an acknowledgment otherwise perfect will not vitiate. Stuart v. Dutton, 39 Ill. 91.
    A certificate of acknowledgment is stronger as evidence than the denial of the grantor. Lickmon v. Harding, 65 Ill. 505 ; Canal & Dock Co. v. Russell, 68 Ill. 426 ; Kerr v. Russell, 69 Ill. 666; Russell v. Baptist Theo. Union, 73 Ill. 337; Fitzgerald v. Fitzgerald, 100 Ill. 385.

      A certificate of acknowledgment is stronger even than the denial of the grantor with proof that the deed is not in his. handwriting. Kerr v. Russell, 69 Ill. 666; Blackman v. Hawks, 89 Ill. 512; Tunison v. Chamblin, 88 Ill. 378.
    A certificate of acknowledgment is a record and imports verity. Kerr v. Russell, 69 Ill. 666; Blackman v. Hawks, 89 Ill. 512.
    It seems to be held in the following cases that a certificate of acknowledgment can only be impeached by showing fraud or collusion between the party.and the officer, and that simple negative of the facts therein stated will not avail. Graham v. Anderson, 42 Ill. 514, 519; Kerr v. Russell, 69 Ill. 666 ; Strauch v. Hathaway, 101 Ill. 11; Monroe v. Poorman, 62 Ill. 523.
    There is no such an inconsistency between the position of the defendant in error as holder of the notes on the one hand, and as trustee on the other hand, that the courts will refuse him relief.
    Had the loan originally been made for a third party, it would have been lawful for Latham to purchase the notes secured by this deed. Darst v. Bates, 95 Ill. 493.
   Congee, J.

This was a bill filed by Latham to foreclose a trust deed which is claimed in the bill to have been executed by plaintiff in error and her husband, Henry Foster, to defendant in error, as trustee, to secure a series of notes executed by said Henry Foster, payable to himself and afterward indorsed to Latham. ■ Latham furnished the money for which the notes were given and it was used by Foster and his wife in discharging a prior incumbrance upon the same property, upon which the deed of trust in suit was given. Plaintiff in error answers, denying the execution or acknowledgment upon her part of the trust deed.

The evidence upon this point is the certificate of acknowledgment of John D. Keedy, a Justice of the Peace, certifying in the usual form to the execution of said deed of trust by plaintiff in error and her husband, offered by defendant in error, and the testimony alone of plaintiff in error, offered in her own behalf, that she never executed or acknowledged the said deed, of trust.

We had supposed it-was settled beyond controversy by the Supreme Court of this State that “in the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer’s certificate of the acknowledgment in proper form must prevail over the unsupported testimony of the party grantor that the same was false and forged.” Lickmon v. Harding, 65 Ill. 505; Fitzgerald v. Fitzgerald, 100 Ill. 385.

The certificate of acknowledgment is as follows :

“ State of Illinois, Sangamon County.
I, John D. Keedy, Justice, of the Peace in said county, do hereby certify that Henry Foster and Margaret Foster, his wife, personally known to me to be the same persons whose names subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead and dower.
Given under my hand and notarial seal this 20th day of
July, A. D. 1878.
[seal.]- John D. KeedY,
Justice of the Peace.”

And it is insisted that this is the certificate of a notary, and not a good certificate because there is no notary’s seal attached. There is no force in the objection. The use of the word notarial” is mere surplusage, and does not invalidate the certificate.

The next objection taken is that Latham could not be a trustee and cestui que trust by the same instrument.

We do not think this objection is'well taken. In Longwith v. Butler, 3 Gil. 38, the court quotes with approval the following language of Lord Eldon: “ Here the mortgagee is himself made the trustee. It would haye been more prudent for him not to have taken upon himself that character. But it is too much to say that if one party has so much confidence in the other as to accede to such an arrangement, this court is, for that reason, to impeach the transaction.” Justice Koerner proceeds to hold that a mortgagee under a mortgage containing a clause to sell, may sell the mortgaged premises and convey a good title to the purchaser.

In the case of Darst v. Bates et al., 95 Ill. 513, the court say: “ Indeed, it is quite common to make the holders of the notes or their assignees trustees in mortgages with powers of sa^e, and this has repeatedly received the approval of this court.”

Here it is not sought by the trustee to avail himself of the power contained in the deed to sell, but he is asking a court of equity to take charge of the property and order it sold in the usual way.

The decree of the Circuit Court was in our opinion right, and will be affirmed.

Affirmed.


author: Coroer, J.

text:
    George H. Dennis v. John W. Piper.

      Negotiable Paper — Suit by Surety on Note Given to Indemnify Kim— Fraud and Circumvention — Notice—Pleading.
    1. A plea of fraud and circumvention in procuring a note, from which it appears that the surety was not deceived as to its character or amount and in which it is alleged that certain representations as to what future circumstances might create a liability were false, is bad on demurrer.
    2. One of two notes, made by the same principal, was given to indemnify the surety on the other note. In an action by said surety on the note payable to him, it is held that a plea to the effect that the plaintiff failed to give the statutory notice to the payee of the other note, is bad on demurrer, the defendant not having requested the plaintiff to give such notice.
    3. The payment of interest already due on a note constitutes no consideration for its extension.
    4. The language of a plea must be construed most strongly against the pleader.

      [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court for Greene County; the Hon. Geo. W. Herdmae, Judge, presiding.
    Messrs. W. M. Wallace and James R. Ward, for appellant.
    Mr. W. M. Ward, for appellee.
   Coroer, J.

This was an action of assumpsit on a note for $650, dated October 6, 1882, payable to appellee and signed by one O. E. Southworth, and appellant. ' To the declaration; appellant filed a plea of non assumpsit, upon which issue was joined, and three special pleas. The second plea was as follows:

2d. Plea by defendant, George H. Dennis, alleging that the causes of action in plaintiff’s declaration were one and the same, to wit, the' note sued on ; that John W. Piper, the payee, and O. E. Southworth, the principal maker, obtained from him the same by the use of fraud and circumvention; that Piper and Southworth before the execution of said note, on, to wit, October 6, 1882, colluding together to injure and defraud him, the defendant, falsely and fraudulently represented to him that if he (Dennis) would execute the said note sued on, as surety, that he (Dennis) would only be liable thereon "in case of a failure on the part of said Piper to pay another note for $650, which Piper had signed as surety for Southworth and payable to B. B. Bartholomew, of the same date, to wit, Cctober 6, 1882, and that the note in the declaration mentioned was for the purpose of indemnifying Bartholomew from loss in case of a failure to make the amount payable to him, out of the said Southworth, principal, and Piper, the surety; that he (Dennis) signed the note as surety for the purpose of collaterally securing the payment to Bartholomew of the note signed by Southworth and Piper; and that it was agreed and understood by and between Piper, Southworth and himse’f, that he (Dennis) was to be liable on the note sued on only in case of the failure of Piper to pay Bartholomew the note South-worth and Piper had executed to Bartholomew, and that Piper had afterward on, to wit, August 6, 1885, paid to Bartholomew the amount of said note.

This is not a good plea of fraud and circumvention. “ A fraud in obtaining a note may consist of any artifice practiced upon a person to induce him to execute it, when he did not intend to do such an act. It is not fraud which relates to the quality, quantity, value or character of the consideration that moves the contract, but it is such a trick or device as induces the giving of one character of instrument under the belief that it is another of a different character, such as giving a note or other agreement for one sum or thing, when it is for another sum or thing, or as giving a note under the belief that it is a receipt.” Latham v. Smith, 45 Ill. 25.

It is not alleged in this plea that appellant was in any way deceived in reference to the instrument he signed, either as to its character or amount,- but only that there were false representations made as to what future circumstances might create a liability upon the note, which could only be made available in' a different plea from the one here presented.

The third plea was as follows:

3d. Plea by George H. Dennis, defendant, alleging that the note sued on was given as collateral security for a note maturing at the same time and oE the same date and amount as the note sued on; that O. JEt. South worth was principal, and plaintiff, Piper, was surety on the other note; that the principal maker, Southworth, on August 6,1883, at maturity of said note, had sufficient property free from all incumbrances and exemptions to have paid said other note, and that had the surety, Piper, given to the payee of said other note proper notice to bring suit on said other note at the maturity thereof, and used any diligence to secure the payment of said other note to the payee thereof, that said Piper would have been lawfully released from the payment of said other note, which release of said Piper would have released him, Dennis, from the note sued on, and that although the said Piper could have been released as aforesaid from the payment of said other note by the use of ordinary diligence as aforesaid, yet he failed wholly, Wilfully, fraudulently and negligently so to do, to the great and needless damage of defendant, (Dennis); -that he (Dennis) was wholly powerless to compel said plaintiff, Piper, to give said notice, and because he was thus powerless and unable to compel plaintiff to take proper steps to release both plaintiff and defendant (Dennis) from their respective notes, and because the plaintiff has in this respect acted in bad faith toward defendant, when he could and should have kept defendant harmless, he, the defendant, became thereby released from all liability on said note, and that two years after said other note became due, to wit, August 6, 1885, the principal, South-worth. became and is now insolvent,.and that by the negligence of the plaintiff it is impossible to recover anything from said Southworth, the principal maker of both notes.

This plea presents no defense. Piper would not be required to give the statutory notice to Bartholomew to bring suit unless requested by Dennis.

Dennis had it in his power to compel Piper to sue South-worth and himself upon this note now in suit had he desired to give the proper notice to Piper, and the amount could have been made, according to the showing of the plea, out of the principal, Southworth, and thus released all the sureties. The fourth plea is as follows:

4tli. Plea by defendant, George H. Dennis, alleging that the whole consideration of the note sued on was for the benefit of the principal maker, Southworth, and no part was for the benefit of defendant, Dennis; that he (Dennis) was surety on said note; that the plaintiff knew the aforesaid facts at the time of the execution and delivery of said note; that after the maturity of said note, on August 6, 1883, the plaintiff, for a valuable and binding consideration, to wit, $52, as interest, then and there paid to him by said Southworth, contracted and agreed then and there with said Southworth to extend the time for the payment of said note, and did then and there as aforesaid, for the consideration aforesaid, extend the time of the payment of said note until the 6th day of August, 1884, to the said Southworth, without the knowledge or consent of defendant (Dennis), and that said Southworth did then and there at the maturity of said note agree to keep the money one year longer as aforesaid, at the same rate of interest, and that afterward, on August 6, 1884, the plaintiff, without the knowledge or consent of the defendant (Dennis), did a second time especially contract and agree with said Southworth, for a valuable consideration, the further sum of $52 to him paid as interest, to extend the time of payment of said note from August 6, 1884, to August 6, 1885, and that said Southworth did then and there agree to keep said money at the same rate of interest from August 6, 1884, to August 6, 1885, for the consideration aforesaid, and that the plaintiff did then and there a second time extend the time of payment of said note as aforesaid, without the knowledge or consent of defendant (Dennis).

The pleas aver that in consideration of the payment of $52 interest paid by Southworth, Piper agreed to extend the time of payment of the note, but it does not aver that this $52 was not for interest then or past due, and applying the rule of construing the language of a plea most strongly against the pleader,' it is not an unreasonable construction of the language used, to say it means interest then due upon the note, and if this is its meaning the plea is fatally defective. The performance by Southworth of a legal obligation then resting upon him could not form the consideration of a new undertaking upon the part of Piper. It is the payment of interest in advance that will constitute a consideration to support and enforce an extension. Waters v. Simpson et al. 2 Gil. 570; Warner v. Campbell, 26 Ill. 280.

Beither is it averred in the pleas that the agreement on the part of Southworth to keep the money for a year longer was any part of the consideration upon which Piper’s agreement to extend the time was based, but both extensions are distinctly based upon the consideration of the sum of $52 to him, Piper paid as interest.

We think the court properly sustained the demurrer to these pleas, and the judgment of the Circuit Court will be affirmed.

Affirmed.