text:
    Joseph C. Reynolds, Appellee, v. Alton, Granite & St. Louis Traction Company, Appellant.
    (Rot to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Geobge A. Cbow, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action on the case by Joseph O. Reynolds against the Alton, Granite and St. Louis Traction Company for damages for personal injuries sustained while boarding a street car. From a judgment for plaintiff for $8,000, defendant appeals. This case was before the court on a former appeal, being reversed for error in instructions. See Reynolds v. Alton, G. C. & St. L. Traction Co., 183 Ill. App. 538.
    Plaintiff was thirty-eight years of age and had been a locomotive engineer for about twelve years, and he was earning at the time of the accident about $.160 per month, and was at the time in excellent health. He lived in the village of Madison. April 3, 1912, he had been driving in the afternoon with his family, and after supper he started to Granite City. He walked down to Second street and Madison avenue, and when he came to Second and Madison streets the car came from the south and east, going north on Madison to Granite City. When the car came around on the straight track two ladies were waiting, and the car stopped and picked them up, and when they got on he took hold of the hand hold and stepped on the step, and, as he did so, the car started suddenly and he was thrown. In some manner he lost his balance and fell, and as he fell he felt a numbing sensation in his right foot. He was taken from the office of„Dr. Hamm that night to the hospital where his foot was amputated. He remained in the hospital at Granite City at this time fourteen days after which he returned to his home and remained until June 3,1912; from there he went to a specialist in St. Louis where he remained five or six weeks and submitted to a second operation, the last amputation being between the ankle and knee joint. He was out of employment about nine months.
    In support of his contention he was to a certain extent corroborated by his age, his health, his family, and his employment. He was further corroborated by a Mrs. Kiser and a Mrs. Simons, who testified that he was at the office of the husband of the former at about the time he said he was injured, and that they saw him going up the street towards Dr. Hamm’s office.
    The defendant introduced the evidence of the conductor and motorman of this car to show that the car did not stop at the place in question, and that they did not take on passengers at that place, and did not see plaintiff; also the statements said to have been made by plaintiff to Dr. Scott that he was hurt while trying to get aboard a moving car. Evidence was introduced showing that Superintendent Johnson of defendant’s line inquired of the conductor and motorman of the 8:15 car whether they stopped at Second and Madison streets. He made this inquiry that night, having heard there was an accident at that place. Dr. Scott, who testified for defendant, and who, with Dr. Hamm, first waited on plaintiff and assisted in performing the first operation, said that plaintiff for some reason insisted on having an amputation above the ankle joint, and insisted upon a second amputation, offering $500 for it; that the second operation was not necessary. Dr. Scott was the surgeon at the time for defendant company and the Terminal Hospital Association, with other corporations. Drs. Hayward and Hale testified a second amputation was necessary.
    The court gave the following instructions: “If from a preponderance of the evidence in the case and under the instructions of the court, the jury shall find the issues for the plaintiff and that the plaintiff has sustained damages, as charged in the declaration, then to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in evidence.”
    “Common carriers of persons are required to do all that human care, vigilance and foresight can reasonably do, consistently with the character and mode of conveyance and the practical prosecution of the business, to prevent accidents to passengers while riding upon their cars or getting on the same.”
    “If, from a preponderance of the evidence and under the instructions of the court, you find the issues for the plaintiff and that he has sustained damages, as charged in the declaration, then in estimating and assessing such damages, the jury should take into consideration the personal injury sustained by the plaintiff, if any is proven by the evidence; the pain and suffering undergone by him, if any is proven by the evidence, and all damages, past, present and future, if any are proven by the evidence, in so far as said matters of personal injury, pain and suffering, damages or permanent injury, if any are shown by a preponderance of the evidence and under the instructions of the court, to be the direct and proximate result of the alleged accident to plaintiff and are alleged in the declaration.”
    “It is the duty of common carriers of persons, by and through their motormen and conductors, to stop their cars for a reasonable length of time to permit persons who are about to take passage on their cars to get aboard their cars in safety, and if you believe from the evidence in this case that the plaintiff, Joseph C. Reynolds, was at a regular stopping place of said defendant, at Second and Madison streets, in.the village .of Madison, on the evening of April 3, 1912, and was then and there about to get on said car for the purpose of becoming a passenger, and if you further find from the evidence that said car was stopped and by and through the negligence of the motorman and conductor then operating the same was not stopped a reasonable length of time to permit the plaintiff to safely get aboard said car while in the exercise of due care and diligence, and if you further find from the evidence that the car was negligently started without giving the plaintiff a reasonable length of time to get aboard said car at said time and place, and if you further find from the prepondenrance of the evidence that the plaintiff was then and there injured at Second and Madison streets by and through the negligence of the defendant as charged in his declaration, then the court instructs the jury you should find the defendant guilty.”
    Williamson, Burroughs & Ryder, for appellant.
    C. H. Burton, for appellee.

      Abstract of the Decision.
    1. Damages, § 209

      —when instructions correct. In an action for damages for personal injuries an instruction that it is not necessary, in order to enable the jury to estimate the amount of damages that any witness should have expressed an opinion as to the amount thereof, but that the jury may themselves make such estimate from the facts and circumstances in evidence, held correct.
    2. Cabbiebs, § 486

      —when instruction on duty to hoarding or alighting passengers correct. An instruction in an action by a passenger against a street car company for damages for personal injuries, as to the duty of a common carrier to protect passengers getting on or off cars, approved.
    3. Damages, § 78

      —when proper to show amount of accident insurance carried in action for personal injuries. Evidence as to the amount of insurance against accident carried by a person is competent in mitigation of damages going to the extent of the injury, in action against a street railway company for damages for personal injuries.
    4. Damages, § 80

      —when proper to show that operation was unnecessary. In an action to recover damages for personal injuries, evidence that a second operation to which plaintiff submitted was unnecessary, is proper.
    5. Appeal and error, § 1489

      —when exclusion of evidence harmless. The refusal to admit evidence as to the amount of insurance carried by a person in an action by such person for personal injuries is not prejudicial error where a witness for the objecting party has already testified as to what the other witness had to say about insurance.
    6. Damages, § 200

      —when instruction on elements to he considered, proper. An instruction in action by a passenger against a street car company for damages for personal injuries sustained while attempting to board a car, as to elements to he considered in computing damages, approved.
    7. Cabbiebs, § 486

      —when instruction on duty to stop to take on passengers, correct. An instruction in an action against a street car company for personal injuries as to the duty of common carriers to stop their cars to allow prospective passengers to get aboard, approved.
    8. Damages, § 125

      —when verdict not excessive. A verdict for $8,000 held hot excessive in an action against a street railway company for damages for injuries sustained, necessitating the amputation of the leg of plaintiff between the ankle bone and knee bone, plaintiff being a man thirty-eight years of age with twelve years’ experience as a locomotive engineer, earning $160 per month, and in excellent health at the time of the injury.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

9. Carriers, § 366*—when evidence sustains finding as to injury while boarding car. In an action against a street railway company for damages for injuries sustained while attempting to board defendant’s street car, evidence held sufficient to sustain a finding that plaintiff was injured while attempting to become a passenger on such car and that he did not board a moving car or attempt to commit suicide by throwing himself under a car of another line at another place.


source: Caselaw Access Project

author: Mr. Justice Harris

license: Public Domain

text:
    The John Deere Plow Company, Appellant, v. Robert C. Leeper, Appellee.
    1. Novation, § 2

      —who has burden of proving. A person who pleads a novation has the burden of establishing it by a preponderance of the evidence.
    2. Novation, § 1

      —what essentials of. The essentials of a novation are a previous valid obligation, an agreement of all of, the parties to the new agreement, the extinction of the old obligation and a valid new contract.
    3. Novation, § 2

      —sufficiency of evidence to establish. The evidence held not to show a novation whereby the seller of a business was released from liability and the purchaser accepted by the former’s creditor in his stead.
    4. Principal and agent, ’§ 228

      —when agent’s declarations not evidence of authority. A witness may not state his conclusion as to what an agent said about his authority.
    Appeal from the Circuit Court of Massac county; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    H. A. Evans, for appellant.
    Fred R. Young, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Upon the trial of this case many of the facts were not in dispute, and from the record such facts appear to be as follows:

That prior to the 6th day of May, 1913, appellee was engaged as a partner with Utterbach in a general merchandise business; and as sole owner under the name of Deeper Implement Company, in the implement business. He was at that time a resident and conducting both of said lines of business in Brookport, Illinois. May 6,1913, in Oklahoma City, he met and disposed of his interest in the partnership business to one C. D. Howell, who was at that time a resident of Oklahoma; that in a short time thereafter Howell became a resident of Brookport, Illinois, and took possession of the partnership business and a further agreement was entered into by and between appellee and said Howell in and by which Howell became the owner of the implement business and took possession thereof and conducted the same from that time to about October, 1913, when he shipped the implements on hand to Clinton, Oklahoma, and returned to Oklahoma. Appellee and Howell, at the time of bringing suit, November 3,1913, were residents of Oklahoma.

It is further admitted that on May 6, 1913, appellee was indebted to appellant in the sum of $1,929.31, which was notes and open accounts, viz.: $208.59 open account for stock carried over from year 1912; $1,379.48 for stock purchased for year of 1913; and $341.24 in two promissory notes held by appellant against appellee for machinery purchased and sold. Most of this indebtedness falling due about October 1, 1913.

The item of $1,379.48 was an order signed “Deeper Implement Company,” at Brookport by direction of appellee, December 6, 1912, for goods, which were shipped to appellee at Brookport, February 20, 1913, which were received and in stock in May, 1913, when the business was transferred by appellee to HowelL The dispute arises over the oral agreement between appellee and Howell and appellee and appellant. Appellee says he sold the store and a part of the implements to Howell and made an agreement with him that he would let him have the entire implement business if it was satisfactory to the company. That agreement was made known to Mr. Schmidt, the agent for appellant, the latter part of May, 1913. Appellee asked Schmidt if it would be satisfactory for him, appellee, to turn over the business to Mr. Howell so far as the company was concerned. Appellee says this 'had reference to the machinery shipped in 1913 and Schmidt said, after talking with Howell in his, appellee’s, presence, it would be satisfactory to accept Howell “in my place and release me.” Appellee said he owed appellant the sum of $215; all other of his indebtedness was assumed by Howell. Howell, a witness called by appellee, says there were two trades: First a trade for one-half of general store and part of machinery accounts, that was about May 6,1913; second, about May 20,1913, for the rest of the machinery, the machinery he bought for that year’s business “I traded him an interest in some Texas land worth about $1,000, and a difference coming to me in first trade and I assumed all indebtedness on the machinery” except two notes due appellant. Howell further says, within a few days after second trade, appellee introduced Mr. Schmidt as representative of appellant, and as to conversation corroborates evidence of appellee, except in obtaining company’s consent and agreement to release appellee.

Schmidt, a witness for appellant, denies that he agreed to release Leeper from payment of account. He says appellee did not ask to be released but said he, appellee, stood behind the payment of the account. This is all the evidence tending to prove novation upon which appellee relies under the law to be released from payment of balance due appellant.

The law is established that a party pleading novation must prove it by a preponderance of the evidence. Netterstrom v. Gallistel, 110 Ill. App. 352. Three parties and four things are necessary to effect novation, original debtor, substituted debtor and the creditor, and these parties must be present and join in the contract. The four essentials: First, a previous valid obligation; second, the agreement of all the parties in the new contract; third, the extinction of the old obligation ; fourth, a valid new one. If any one of these essentials is wanting, there could be no novation. Hayward v. Burke, 151 Ill. 121.

It is not contended that appellant or its agent was present at the time either the first or second trade was made. And waiving for a moment the necessity of its presence at that time, the evidence does not prove that appellant ever agreed to release appellee. This is only mentioned and insisted upon by appellee himself in an indefinite statement of what was said, the record giving his conclusions of what was said. »The facts proven of what took place after this conversation are as consistent with appellant’s theory as with appellee’s theory. The verdict is for the amount of the two notes, $341.24, whereas appellee admits only the sum of $215, showing that the jury did not adopt the amount claimed to be due by either party. There was no theory upon which this case was tried that supports the amount of the verdict. We are of the opinion that the evidence of novation does not support the verdict, and that the verdict is clearly against the manifest weight of the evidence, and the motion for a new trial should have been sustained.

It was error to permit the witness to give his conclusion as to what the agent said about his authority to collect for appellant. The statement of the agent as to his authority is not competent.

Without novation was proven by appellee, the evidence offered would not be competent upon any theory, as it would simply tend to' prove a contract nudum pactum invalid and unenforceable, a promise to pay the debt of another within the Statute of Frauds, and invalid.

The error argued as to the modification of instructions we do not regard as misleading, but this objection may be removed on another trial of the case.

Therefore for the errors sustained, this judgment must be reversed and the cause remanded.

Reversed and remmded.


text:
    Carleton-Ferguson Dry Goods Company, Appellee, v. John Langenfeld, Appellant.
    1. Appeal and ebbob, § 824

      —when exceptions preserve themselves. Exceptions do not preserve themselves when no objection is made to the rulings of the trial court.
    2. Appeal and ebbob, § 590

      —when exceptions must he taken. Under section 83 of the Practice Act (J. & A. If 8620) an exception must be taken at the time a ruling is made.
    3. Appeal and eebob, § 936

      —when record amended to show exceptions. A motion to amend the record on appeal so as to show the taking of timely exceptions will he denied where it does not appear from the judgment or the clerk’s copy of the proceedings that any objection was made to the rulings in question.
    4. Appeal and ebbob, § 788

      —when hill of exception essential to review. The questions of the dismissal of an action as to the appellant’s codefendants and the amendment of the declaration are not reviewable where no exceptions were preserved by bill of exceptions.
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    L. B. Skipper and G. F. Merion, for appellant.
    Bundy & Wham, for appellee.

      See Illinois Notes Digest, Vols. XI to. XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

A suit in assumpsit was brought in the Circuit Court against appellant, A. J. McClelland and S. W. Ashbrook to recover the sum of $260.88. Personal service was had on all defendants. The declaration consisted of four counts. Defendant S. W. Ashbrook was defaulted. The defendant A. J. McClelland and appellant each filed special pleas and pleas of general issue. Replications filed and issue joined thereon.

At the January term, 1914, in open court, a stipulation was entered into, as follows: S. W. Ashbrook, claiming to be the buyer for A. J. McClelland, called upon appellee at its place of business in St. Louis and" purchased the bill of goods in question amounting to the sum of $260.88, and the goods were shipped and charged to A. J. McClelland by appellee. An invoice was mailed to McClelland which McClelland never saw' but which Ashbrook got possession of, addressed by appellee to said McClelland, Centraba, Illinois. Ash-brook had represented to McClelland that he was the selling agent for appellee, and obtained permission of McCleband to have said goods shipped in McClelland’s name; that he was furnishing the Langenfeld Hotel and might not be there at the time the goods came and did not want them lying around the freight house. When the goods came McClelland delivered the goods to Langenfeld at his hotel. Langenfeld received the goods and put them to use in his hotel and has retained them ever since, paid Ashbrook for the goods, but appellee company has never received any pay for the goods from Ashbrook, McClelland, or Langenfeld. Ashbrook was not the agent of appellee nor their salesman, and had nothing to do with its business. He, Ashbrook, was not authorized to buy the goods for McClelland; that Langenfeld received no bill of the goods purchased from appellee, and knew no other person in the transaction except codefendant Ashbrook, who told Langenfeld they were his goods. Langenfeld did not learn otherwise until January, 1913. The goods when delivered to Langenfeld were addressed to A. J. McClelland, Centralia, Illinois, but Ashbrook removed the crating from the goods and Langenfeld did not know in whose name they had been shipped. Mc-Clelland was at the time and had been a dealer in second-hand furniture and Ashbrook told the credit man of appellee that McClelland was such a dealer. By the stipulation a jury was waived and the cause submitted to the court on the 5th day of March, 1914. Prior to the time of the findings, and entry of judgment, appellee made a motion to dismiss suit as to defendants Ashbrook and McClelland and to amend declaration, which was granted. Amendment made, followed by judgment against Langenfeld.

Assignments of error argued by appellant are.:

First. Appellant is not liable in assumpsit for purchase-price of goods because he paid Ashbrook.

Second. Because it was error to permit appellee to dismiss after default had been entered as to defendant Ashbrook.

Third. Because the suit was an action ea> contractu, appellee must prove a promise as to all defendants and is not permitted to take a judgment against part of the defendants and dismiss as to the other defendants.

Fourth. That Ashbrook represented to appellee he was the agent of McClelland and that appellee dealt with him upon the representations so made.

Fifth. The refusal of the court to hold appellant’s propositions of law 1, 2, 3, 4, 5, 6 and 11.

Sixth. That it was error to enter judgment under appellant’s propositions of law 8, 9 and 10 held by the court.

Error was joined upon this appeal at the present term of this court November 7, 1914. Appellee filing its brief and argument asking for an affirmance upon the ground, that no exceptions are preserved by bill of exceptions or the record to the dismissal of the suit as to defendants Ashbrook and McClelland and the amendment of the declaration; that no exception is preserved by bill of exceptions to the finding and judgment of the court. A copy of appellee’s brief and argument was served upon appellant November 6, 1914. Appellant on the 13th day of November, 1914, files in this court his motion suggesting to this court that there are omissions and defects in that portion of the transcript of the record covering the bill of exceptions and admits that the bill of exceptions does not show exceptions were preserved to the ruling of the court in dismissing the suit as to codefendants Ashbrook and McClelland; that it does not show exceptions were preserved to the findings of the court against appellant Langenfeld, not to the rendition of' final judgment; that all such exceptions were in fact taken in apt time and which under the statute are allowed as a matter of right.

Appellant further represents by said motion that in order to correct the transcript it will be necessary to set aside the order of submission and withdraw joinder in error on part of appellant, continue cause in this court so that cause may be redocketed in Circuit Court and proper orders secured in term time amending said record and transcript, praying that a writ of certiorari may be awarded directed to clerk of Circuit Court requiring him to send up a true transcript of the record and proceedings and for a continuance in this court.

Appellee on the 13th day of November, 1914, files in this court his objections to the allowance of appellant’s motion: Because the motion came too late; because the defects in the' transcript of record were pointed out by appellee to appellant before the case was taken in this court; Because the copy of the judgment and the copy of the minutes of the court purport to be full copies as set forth in the abstract.

This being the condition of this record as it is presented to this court, the first question to be passed upon is the allowance of the motion of appellant against the objection of appellee.

Appellant admits the exceptions referred to are not preserved by bill of exceptions and that the exceptions to the amendment of declaration and dismissal as to codefendants Ashbrook and McClelland are not shown by the record.

Appellant further admits that it is necessary to have these exceptions appear in the transcript of record to have the errors assigned considered. Appellant further admits that in order to have the exceptions properly appear in the transcript of the record, it will be necessary for the cause to be redocketed in the Circuit Court and the bill of exceptions amended in that particular, and no memoranda, minutes or notes are made a part of the motion which is under oath showing anything to amend from. The judgment was entered March 5, 1914. The time given for filing a bill of exceptions was ninety days. The term has long since adjourned. The bill of exceptions was signed and filed May 30,1914.

The appellant insists exceptions were taken in apt time and are under the statute allowed as a matter of right. If appellant means by this statement that without the party objecting to the ruling of the court, that exceptions preserve themselves under the law, his contention cannot be sustained. Under the Practice Act, where the record shows objections were made, exceptions follow the ruling on objections, but this does not mean that a party who does not say anything has the right to have an exception inserted as a matter of right under the statute. Under Section 83 of the Practice Act (J. & A. ¶ 8620): “Exceptions taken to decisions of the court shall be allowed and the party excepting may assign for error any decision so excepted to.” This means an exception at the time the decision was made. If so made and does not appear in its proper place in the transcript of record, and the party seeks to have it so appear after the adjournment of the term at which the exception was taken, and the time for filing bill of exceptions has expired, must be made from some memorial paper, minute or reporter’s notes, and preserved as a part of the record pursuant to law. An amended record cannot be received here, which shows affirmatively that an amendment to a bill of exceptions in the court below was made upon the testimony of witnesses as to their recollection of what was said or done. The affidavit of an attorney as to what was read or said amounts to nothing more nor less than the testimony of a witness as to his recollection, and is insufficient. Village of North Chillicothe v. Burr, 178 Ill. 218: “An amendment of a bill of exceptions, which is based upon an affidavit filed by counsel, and not upon the notes of the official stenographer nor upon any minutes kept by the trial judge, should not be allowed. Chicago, B. & Q. R. Co. v. Levy, 57 Ill. App. 365.” “An amendment of a bill of exceptions, incorporating evidence alleged to have been omitted from the original bill of exceptions, should not be allowed at a term subsequent to that at which the trial was had, unless there is something in the record to amend by.” Wallahan v. People, 40 Ill. 103.

From this motion sworn to by counsel for appellant with the time that had intervened between the entry of judgment, filing of original bill of exceptions, and joinder of error in this court, it affirmatively appears that counsel is relying upon his recollection as to objections or exceptions entered by him at the time. If not, he would have made the necessary showing to have justified the Circuit Court in permitting him to amend, as we may presume the Circuit Court would only permit him to amend if within the law. It would accomplish no good purpose to sustain the motion to amend and continue if the showing is insufficient to amend upon or for this court to receive an amended bill of exceptions. There is no showing that the clerk failed to make a complete certificate of everything he has pertaining to the transcript of the record. The motion suggesting diminution of the transcript of record, for writ of certiorari, and to continue will be denied.

It is now the .settled rule of practice in this State that an Appellate tribunal cannot inquire into the sufficiency of the evidence to support the judgment unless there is an exception to the finding and judgment when tried by the judge without a jury or on a motion for new trial and exception to the overruling of the same where trial is had by jury. This "must be preserved by bill of exceptions. Firemen’s Ins. Co. v. Peck, 126 Ill. 493.

The rale of practice is well understood by the profession and admitted by appellant in this case under the motion heretofore denied, there were no exceptions preserved in the transcript of record as. to dismissal of suit as to codefendants Ashbrook and McClelland, to amend declaration and no exceptions preserved by bill of exceptions to the findings and judgment of the court. The rulings of the court and the court’s holding on the propositions of law submitted are so interwoven with the evidence that we cannot inquire into the sufficiency of the evidence to support the findings and judgment of the court or whether or not the propositions of law refused or given were applicable to the court’s findings upon the evidence.

This disposes of all the contentions of appellant that have been argued.

The judgment of the Circuit Court will therefore be affirmed.

Affirmed.


text:
    Pioneer Lumber Company, Appellant, v. Woods Brothers Silo & Manufacturing Company, Appellee.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. FtANNiGAN, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit brought by the Pioneer Lumber Company against Woods Brothers Silo & Manufacturing Company. The issues joined were referred to a referee for proofs and conclusion.
    The plaintiff filed exceptions to the referee’s report, which were sustained as to conclusions, and overruled as to evidence. No exceptions were taken to the court’s findings; and judgment was entered in favor of defendant and against plaintiff for costs. No exception was taken to the judgment. The plaintiff appeals. A bill of exceptions was presented to the trial judge after the time limited for filing it had expired, and as the trial judge refused to sign it, no bill of exceptions was made a part of the record on appeal.
    The plaintiff contended that the evidence was not sufficient to sustain the judgment, and that a bill of exceptions was unnecessary. Also that because of section 68 of chapter 110 of the Practice Act (J. & A. U 8605), when the court in its discretion refers a case to a referee, the action, so far as procedure is concerned, is transformed from a case at law to one on the chancery side.
    W. L. Coley, for appellant; Abbott & Edwards, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 788

      —when hill of exceptions essential to review. In order that a ruling of a trial court on matters other than those appearing on the common-law record may he reviewed, the questions must he preservéd in a bill of exceptions.
    2. Appeal and error, § 788

      —when hill of exceptions essential to review of judgment on referred case. The reference of a- case to a referee does not transfer the action, so far as procedure is concerned, from the law to the chancery side of the court, so as to permit the review of a judgment without a hill of exceptions.
    3. Appeal and error, § 1002

      —when hill of exceptions essential to' review weight of evidence. The question whether a judgment is sustained by the weight of the evidence is not open to review, where neither the evidence nor exceptions to the judgment are preserved by hill of exceptions.
    John E. Hamlin, John L. Flannigan and S. W. Baxter, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


text:
    Joseph A. Head, Margaret B. Haller and William Dulaney, Appellants, v. Village of Wood River, Michael F. Manning, Treasurer, and Fred Penning, Appellees.
    1. Reference, § 10

      —when exception necessary to referee's report. One who does not except to a master’s report is hound thereby.
    2. Municipal corporations, § 457

      —when land for sewers may he acquired hy purchase. Section 3 of the Act of 1910 (J. & A. 1512) relative to the construction of sewer outlets, pumping stations, etc., beyond the limits of certain cities, and permitting the acquisition of land therefor by gift, purchase, condemnation or otherwise, does not apply to such improvements when wholly within the limits of a municipality.

      3. Municipal cobpobations, § 457

      —when land for sewer and water system may be acquired by purchase. A right of way for a water and sewerage system lying wholly within the limits of a municipality must, under section 13 of the Act of 1897 (J. & A. f 1400) be acquired by condemnation and not by purchase.
    4. Municipal cobpobations, § 457

      —questioning purchase of land for sewer and water system in confirmation proceeding. A contention that a village improperly acquired land by purchase instead of condemnation, as required by section 13 of the Act of 1897 (J. & A. If 1400), for the construction of a water and sewerage system wholly within the limits of the municipality, need not be made by taxpayers in a proceeding in a County Court for the confirmation of a special assessment for the improvement.
    5. Municipal cobpobations, § l§l

      —fwhen fraud must be alleged in suit to enjoin purchase of land for sewer and water system. Fraud need not be alleged or proved in an action by taxpayers to enjoin a village from paying for land purchased instead of condemned as required by section 13 of the Act of 1897 (J. & A. V 1400) for a water and sewer system wholly within the limits of the municipality.
    6. Municipal cobpobations, § 457

      —when taxpayers estopped to question validity of purchase of land for water and sewer system. Taxpayers cannot be estopped from questioning, nor can they waive the want of power in a village to purchase instead of condemning, as required by section 13 of the Act of 1897 (J. & A. 1400) for a water and sewerage system wholly within the corporate limits.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed May 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Levi Davis, for appellants.
    Warnock, Williamson & Burroughs and William P. Boynton, for appellees.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The bill filed in the Circuit Court by appellants is for an injunction to restrain the Village of Wood River and Michael F. Manning, treasurer of said village, from paying to Fred Penning, one of appellees, in any manner, any part of two special assessments, against the property of said Penning, one for a local improvement, a sewer system, and the other for a local improvement, a water system, the two assessments amounting to $1,750, and to enjoin Fred Penning from receiving any money on two warrants on the treasurer of said village on account of said assessments and from assigning said warrants.

The facts over which this controversy arose, so far as material, are as follows:

The board of local improvements of said village recommended two ordinances, viz., No. 24 and No. 25, for the water system and sewer system respectively, which said ordinances were passed by the village board of trustees on the 9th day of May, 1912, and on the same date approved. Each ordinance required the improvement to be made and paid for by special assessment of property in the usual way. Each ordinance contained a clause that the land necessary for a right of way, where such line is not in the streets, avenues or alleys of said village, had been acquired by, granted to and is now in the possession of said village.

Fred Penning, one of the appellees, was the owner of a tract of land in said village through which, under ordinance No. 24, the water system should run, describing the strip, and under ordinance No. 25, the sewer system should run, describing the strip. There had been a plat prepared but not recorded of said land. Petitions for the levy of special assessments for said improvements were filed in the County Court of Madison county on the 25th day of May, 1912. The appellants and the said Fred Penning are owners of real estate in said village along the line of the improvements and taxpayers of the village of Wood River. They were notified of said proceedings and were in court. Assessments were made pursuant to each of said petitions, except that the land of said Penning was .not mentioned or assessed. Appellants filed objections to the assessments for the reason that Fred Penning’s land was not assessed. Appellants and Fred Penning came to an agreement and objections were withdrawn and said Penning’s land was assessed. The right of way across Penning’s land was acquired by the village by two deeds from him, which recite that the right of way is conveyed for purpose of improvements only, and in consideration thereof said tract of land is not to be assessed for the construction of said improvements, and the village to assume any assessments that might be made. These deeds were not made a part of the proceedings in the County Court, and the only reference thereto was to the effect that the village had acquired the right of way.

January 9, 1913, the village board ordered warrants drawn, payable to M. F. Manning, special collector of said village, for $60 against the water fund and $69 against the sewer fund of said village, reciting that the same were for F. Penning’s special assessments. These warrants were drawn in accordance with the directions of the village board and are dated January 22, 1913. The bill alleges that the rights of way were worth less than $100. The village of Wood River and Michael F. Manning, treasurer, file answer to the bill, admitting the passage of the ordinances, and the acceptance of deeds and proceeding in County Court, and claiming for themselves good faith. Fred Penning filed answer in substance the same as answer of village and its treasurer, but denying that he had received any warrant for $129, or any other sum.

A temporary injunction was issued. Replications to answers and upon reference to special master evidence taken and reported by special master with his conclusion or findings. Objections were filed by appellee to master’s findings, which objections were on the hearing to stand as exceptions to master’s report. The finding of the master was in favor of appellants, except as to amount of $300 allowed Fred Penning as a reasonable compensation for the rights of way. The report recommended a decree permanently enjoining the said village from paying the balance of the $1,750 assessment to Fred Penning and the said Fred Penning from receiving same" in warrants or money. The court on the hearing sustained the exceptions and entered decree dismissing bill.

The appellants filed no exceptions to master’s report and as to the amount of $300 allowed Fred Penning for right of way under the bill, evidence and report of the master, they are bound.

The appellees have filed separate briefs in this case, both making the same contention as to the law applicable to this case. When from an investigation we arrive at a conclusion, the difference between appellants and appellees is whether' or not the transaction between the village board and Fred Penning for right of way and the making of the deeds was within the powers of the village board to make. If not, it is a void transaction, and no partial performance would work an estoppel as against a taxpayer seeking to enjoin the wrongful appropriation of funds in payment thereof. The rule is different if it is a power vested in the board of trustees exercised in a wrongful manner; then the authorities cited on estoppel apply. The fact that under the local improvement law there are two different acts, the one of 1897 for improvements within cities and villages by special assessment or special taxation sections 12 to 33 (J. & A. ¶¶ 1399-1421) provide the exclusive method by which the village could obtain private property for the construction -of a sewer. The Act of 1899 and Act of 1910 for the construction of outlets, furnishing pumping stations, etc., outside the corporate limits of cities under 100,000, paragraph 608, Cities and Villages Act, section 3 (J. & A. ¶ 1512), provides that the city or village may acquire by gift, purchase, condemnation or otherwise, land for said purposes. This act applies to improvements of this kind when partially within and partially or wholly without corporate limits, and has no application to the case at bar nor is it in conflict with Act of 1897. The mode of procedure is not cumulative as to the acquisition of property for a public use. Section 53 of the Cities and Villages Act (J. & A. ¶ 1443), under local improvements, has to do with the levying- of assessments for improvements under the Act of 1897, but the property acquired must be acquired under section 13 of said Act (J. & A. ¶ 1400).

The Supreme Court of this State in the case of Litz v. Village of West Hammond, 230 Ill. 310, have construed this section in the following language: ‘ ‘ Where private property must be acquired for the making of any local improvement, to be paid for, in whole or in part, by special assessment, the statute requires that the title thereto shall be obtained by condemnation proceedings,” and that method is exclusive. Snydacker v. Village of West Hammond, 225 Ill. 154.

The fact that deeds were made by Penning and the warrants issued for a part of the consideration is of no consequence in this case. “So long as they had not been paid, the funds of the village were not, in fact, applied to the purchase of this real estate, and so long as those funds remained in the hands of the village treasurer their unauthorized expenditure might be restrained at the suit of the taxpayer.” The law applicable to cases cited by appellees that where the municipality, itself, after the contract was executed by the other party thereto, has sought to avoid the performance of the contract on its' part, where it did not put the other party in statu quo or where it did not offer to do so, is not applicable to the case at bar. This is a suit brought by taxpayers not parties to the contract. Litz v. Village of West Hammond, supra.

The contention of appellees that appellants were bound to make their objections to the acquisition of this right of way in the County Court is equally as nntenable. The question of whether the County Court might not have determined the question of right of way is not involved. The only reference to what had been done was only the statement that the right of way had been acquired. It might be presumed that if acquired it was acquired according to law.

Because we are of the opinion that this right of way could only be acquired by condemnation and because the transaction was invalid and void, it was not necessary to aver and prove fraud. There could be no waiver or estoppel as against appellants because the board of trustees were without the power to purchase the right of way.

The findings of the special master were right and the exceptions should have been overruled, and a decree entered accordingly.

The decree will therefore be reversed with directions to vacate and set aside decree and order sustaining exceptions of appellees and each of them; that an order be entered overruling exceptions of appellees and each of them to master’s report and decree entered accordingly.

Reversed and remanded with directions.


text:
    Preston Sargent, Appellant, v. M. H. Mundy, Administrator, Appellee.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Wahash county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Petition was filed by Preston Sargent in the County Court in the.estate of James Sargent, deceased, then in due course of administration, alleging that he was a son and heir at law of the deceased; that M. H. Mundy, the defendant, was the administrator; that his report as administrator falsely showed the payment by petitioner to the administrator of $985, and the payment by the administrator of a like sum to the petitioner; that the petitioner was not indebted to his father at the time of his death in any sum, and that he did not pay said sum or any other sum to said administrator ; that the administrator did not pay said sum to petitioner or any other sum as shown by said report; that the administrator falsely and wrongfully obtained said receipt from petitioner, which purports on its face to be for $985. Petitioner prayed for a citation against the administrator to strike such item from his report, and for the withdrawal of such receipt. A trial in the County Court resulted in a finding for petitioner, which was reversed on an appeal to the Circuit Court, from which an appeal was taken.
    The facts were that James Sargent, a man about eighty-two years of age, a wife eighty-five years of age, a son, appellant, sixty-three years of age, and an adopted son, constituted the family and heirs at law of James Sargent, now deceased; that James Sargent was confined to his bed with sickness, an invalid, and very hard of hearing; that during that time he sold his home for $2,000 and from the proceeds paid $1,000 to his wife, and $985 to the appellant, Preston Sargent. The day before the transfer the petitioner went to the home of his father and solicited the payment to him from the husband and wife of a part of the funds which was paid for this property. James Sargent had but little property, and he and his wife were old, with but little understanding! of business methods. Preston Sargent was not an educated man, but knew that he got out of the sale nearly one-half the funds, but how he obtained it whether as a gift, a loan, or for what purpose, is not satisfactorily shown.
    Abstract of the Decision.
    1. Exeóutors and administrators, § 532a

      —vihen citation lies to strike item -from administrator’s report. A person who is interested in an estate may file a petition for a citation in the County Court, during the pendency of an administration proceeding, to have an item stricken from an administrator’s report, improperly charging him with an indebtedness to the estate or the receipt of money therefrom.
    2. Appeal and error, § 1078

      —when appellee must assign cross-errors. An appellee who does not assign cross-errors on the refnsal of a court to dismiss a proceeding for want of jurisdiction cannot question such ruling on appeal.

      The evidence further showed that about a year after James Sargent’s death, the administrator had several conversations with the petitioner concerning the money obtained by him from his father, and that finally the petitioner gave the administrator the receipt in question.
    E. B. Green and Theo. G. Risley, for appellant.
    Howard P. French, for appellee; M. H. Mundy, pro se.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section ¡lumber.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

3. Gifts, § 29 —when evidence sufficient to show gift. Where a son of an aged parent solicited and obtained a portion of the money received by the parent from the sale of a home, held that the evidence did not show that it was a gift.

4. Executors and administrators, § 355 —when receipt from heir not fraudulently obtained. A receipt obtained by an administrator from an heir for money received by the latter from Ms father shortly before his death, held not obtained by fraud, and to be based on a sufficient consideration.


text:
    D. D. Haynie, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by D. D. Haynie, administrator of the estate of Arthur Greenlee, deceased, against the Illinois Central Eailroad Company for the benefit of the next of kin of the dec'eased for the wrongful killing of Arthur Greenlee. From a judgment for plaintiff, defendant appeals.
    The evidence showed the employment of Harry Warren by defendant in its yards to keep trespassers off of the property, protect the company’s property, and to prevent men from stealing merchandise and material; that it was not his duty to make arrests, that he was not sworn in as officer; that his duty was to inquire the business of trespassers, and if they had none it was duty to get them to leave; that if he found anyone on the right of way he thought was interfering with the company’s property, it was his duty to notify the watchman in charge and cause the trespasser to be arrested and turned over to the police; that' he was not authorized by his employer to nor was it aware that he carried a weapon.
    Abstract of the Decision.
    Master and servant, § 846

      —lohen master liable for watchman shooting trespasser. Where a watchman employed by a railroad company to warn off trespassers, and to call the police to make arrests on their refusal to obey, shot and killed a trespasser as he was running from the property of the company, it is not answerable, where it had not authorized the watchman to nor was it aware that he was carrying a weapon, since the latter’s act was not within the scope of his employment.
    The evidence of the plaintiff tended to show that the deceased, together with two other young men, between twelve and one o’clock at night started to walk from Centralia to Odin, and while passing north through the defendant’s yards along the main track of defendant, they were met by Warren, whom they did not know; that one of the young men spoke to Warren but that he made no reply, and when the latter was opposite Arthur Greenlee that he spoke to him and asked him what he had on him; that Warren had a flash-light in his hand and cast the light on Greenlee; that Warren pulled a gun out of his pocket; that Greenlee started to run off the track, when Warren fired one or two shots and then he ran after and fired more shots at Greenlee, who was shot in the back, from which he died.
    W. W. Barr, John J. Bundy and Kagy & Vandervort, for appellant.
    Jonas & Haley, Noleman & Smith and Bundy & Wham, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.


text:
    Ellen Finty, Appellant, v. J. G. Kinder, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clay county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Ellen Finty against J. Gr. Kinder for specific performance of a written agreement, and for an injunction and other relief. From a judgment for defendant, plaintiff appeals.
    The allegations of the bill were in substance: That plaintiff was the owner of three lots in Xenia, Illinois, on which were store buildings and warehouses, known as the ‘ ‘ Finty Stores; ’ ’ that defendant by contract in writing of date June 2, 1911, • purchased the stock of goods in this store, and in the contract of purchase and as a part thereof was the following clause which was the foundation of this proceeding: “At the time of the adjustment (which may be between the dates of July 5th and July 15, 1911), a regular bill of sale for said stock is to be given and a lease on the buildings in which it is located, for a term of five years, is-to be made and entered into on the part of the said J. Gr. Kinder and Miss Ellen Finty, the owner of the property, at Seven Hundred and Eighty Dollars per annum, payable in monthly instalments of Sixty-five Dollars each, falling due on the first day of each month thereafter for the full term of the time.”
    The bill alleged that defendant in pursuance of the terms of the agreement took possession of the premises July 15,1911; that plaintiff had always been ready and willing to perform her part of the agreement to lease the premises; that she caused a draft of lease to be made and tendered to defendant July 15, 1911, but he refused to accept the same; that defendant about December, 1913, gave plaintiff notice of his intention to vacate the premises; that defendant was a resident of the State of Missouri;. that unless defendant was enjoined by order of court he would remove the remainder of his stock of goods and refuse to execute the lease, and that he was about to vacate the premises so that plaintiff would have no relief for the balance of the rent.
    The prayer of the bill was for specific performance, for injunction until contract was performed and for relief.
    A demurrer to the bill was overruled, the answer of defendant admitting that he entered into the contract in question; that he entered into the possession of the premises on July 15, 1911, and occupied the same until the 25th day of December, 1913; that he offered to execute a lease with plaintiff in compliance with his understanding and agreement but plaintiff refused to accept same, and by reason thereof he was discharged of any liability on that account, and that the plaintiff is barred from relief because of her laches and delay in filing the bill. Eeplication was filed and evidence heard in open court. There was a finding for defendant and a decree dismissing the bill for want of equity.
    The written agreement between the parties containing the paragraph with reference to the leasing of these premises was for the sale of a stock of goods in the building in question sold by plaintiff to defendant and settled for by defendant. The latter took possession of the premises in question July 15, 1911, and occupied the same until December 25, 1913, and paid plaintiff each month the sum of Sixty-five Dollars as rent therefor during the time he occupied same. About the 15th day of July, 1911, plaintiff caused to be prepared a lease for said premises with the provision against subletting the premises and a provision that at the time of the termination of the lease the fixtures were to be turned back to plaintiff in as good condition as the same were at the time of leasing, usual wear excepted. This lease was submitted to defendant and he refused to execute the same. Defendant in turn, about the same time, submitted to plaintiff a lease permitting subleasing and a clause that plaintiff was to make repairs, and providing that defendant was not to be held responsible for breakage or destruction of property and fixtures. The matter of entering into a lease was then dropped until December, 1913, when plaintiff presented the lease, omitting clauses that were before objectionable. This lease defendant refused to accept.
    Abstract of the Decision.
    1. Appeal and error, § 1325

      —when only competent evidence presumed, to have teen considered. It will be presumed that the trial court did not consider incompetent evidence in arriving at its conclusions where there was competent evidence to sustain the decree.
    2. Appeal and error, § 1711

      —when error deemed vjaived. An error in regard to the admission of incompetent evidence will be deemed waived where there is no claim made upon appeal that the court refused to admit competent evidence.
    3. Specific performance, § 44

      —jurisdiction to enforce agreement to lease. The jurisdiction of a court of equity to enforce specific performance of a contract for a lease depends upon the facts averred in the bill, and while not on the same ground that a court takes jurisdiction of a contract involving a freehold, it is upon the averments in the bill that the party entitled to possession or under the agreement is out of possession, and that to rely upon the remedy at law means endless and expensive litigation, multiplicity of suits, irreparable injury, etc., or some of those elements.
    Kagy & Vandervort, for appellant.
    James H. Smith and John L. Boyles, for appellee.

       See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

4. Specific performance, § 44 —when agreement to lease not enforced. Specific performance of an agreement to lease property will not he granted when the terms of the agreement are not fully and clearly stated.

5. Landlord and tenant, § 23 —lohen rights lost under agreement to lease. One who enters into an agreement to lease property for a term of years at a stipulated monthly rental waives his rights under the agreement, where the tenant refuses to sign and accept the lease proffered by the landlord and is permitted to remain in possession upon payment of the stipulated rental.


text:
    Lee S. Trainor, Appellee, v. Chicago Sandoval Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit and on consolidated common counts by Lee S. Trainor against Chicago Sandoval Coal Company for service performed as a civil engineer. From a judgment for plaintiff, defendant appeals.
    The first count alleged that on, to wit, February 1, 1913, defendant promised to pay plaintiff as much money as he reasonably deserved when requested; that he refused to do so and that he had not paid such sum to plaintiff, to the damage of plaintiff of eight hundred dollars.
    The second count alleged at on, to wit, the 1st day of December, 1912, the defendant was desirous of having its two mines in and near the village of Sandoval, Illinois, surveyed and the rooms and entries thereon shown, and defendant was then and there a civil engineer and had experience in surveying coal mines and, in consideration of the promises, that plaintiff, at the request of defendant, would purchase the necessary material and would ■ employ the necessary civil engineers, chief-of-party and instrument man, chain men and helpers, and would superintend and oversee the surveying of said coal mines, the said defendant undertook and promised to pay plaintiff as compensation for said service, material and furnishing the necessary chief and instrument 'man, chain men and helpers, the cost of the material and one dollar per hour for chief-of-party and instrument man and fifty cents per hour for chain men and helpers used and employed in and about surveying said coal mine.
    There was a further allegation that plaintiff, on the 15th day of December, 1912, and divers days thereafter, did furnish material, men and service in accordance with said agreement, amounting in the aggregate to eight hundred dollars and thereafter on the 15th day of January, 1913, defendant paid plaintiff the sum of one hundred dollars to be applied on said account and defendant, although requested on the 1st day of February, 1913, refused to pay plaintiff said amount or any part thereof, and still neglects and refuses so to do.
    The third count was the consolidated common counts. A copy of account sued upon was filed with declaration. The plea of general issue was filed to this declaration.
    Upon the trial the evidence offered by plaintiff and admitted was under the second count of the declaration.
    The contract as testified to by plaintiff was that in answer to a telephone call from Mr. Butterlv, the superintendent of the mine, he, plaintiff, went tó Sandoval on the 29th day of November, 1912, met Butterly at the mine and talked about the work. ‘ ‘ He said they wanted a complete survey of the workings and, of course, the necessary top. He asked me what I could do the job for. I told him- it would cost him one dollar per hour for the chief-of-party, the man in charg’e of the work, and I asked him if he desired me to furnish the helpers and he said he preferred I should furnish them, and nothing was said relative to price for the helpers. The company was to furnish plugs and tools to drill the holes. They furnished plugs a part of the time and I furnished them a part of the time. The mine company was to pay for helpers. I was to bill against them every two weeks. The first two weeks ended on January 1, 1913, and on the 15th of January I got one hundred dollars, about one-half of what I asked for. The company was to pay the necessary expenses of myself and men on top. I believe that is all the contract. ’ ’

    From the exhibits introduced in evidence by plaintiff he received his instructions as to the work in writing, and, among other things, he was to make a map showing all working places and those adjacent with entries, leading to same, survey all entries that were working and those that had been stopped and all rooms that were working and those that had been stopped lately, and make a map in scale of one hundred feet to the inch.
    There was no evidence that defendant ever accepted or used any part of this work, or that any part of it was tendered to it in the form of plats or notes so that it might be used.
    Plaintiff relied and sought to recover upon the theory of the law that because he was stopped by defendant without cause he was entitled to a verdict for the contract price.
    Noleman & Smith, for appellant.
    J. J. Bundy, for appellee.

      Abstract of the Decision.
    1. Contracts, § 300*—when nonpayment not a breach. There can be no recovery on an inseverable contract for the performance of services and furnishing of material because of failure to pay for the value of services rendered and material furnished up to a certain period, where, although payments are provided for on account, there are no stipulated times for acceptance of work and payment therefor, and the part of the contract performed has not been accepted or appropriated by the defendant.
    2. Contracts, § 203*—when contract not severable. A contract for the performance of services and furnishing of material is not severable where, although payments are provided for on account, there are no stipulated times for acceptance of the work and payment therefor.
   Mr. Justice Harris

delivered the opinion of the court.


text:
    John H. Drury, Administrator, Defendant in Error, v. East St. Louis Light & Power Company, Acme Electric Company and H. C. Windt. East St. Louis Light &, Power Company, Plaintiff in Error.
    1. Negligence, § 1

      —what are elements. The essential elements for a cause of action for negligence are, the existence of a duty on the part of the person charged to protect the complaining party from the injury received, a failure to perform- that duty, and injury resulting from such failure.
    2. Negligence, § 119

      —when declaration bad for failure to aver duty. In an action against an electric light company, for the death of a child which was killed by coming into contact with an electric conduit pipe along the outside of a school building which had been installed by a third person and had become charged as a result of insufficient grounding, a declaration held to be bad as failure to allege a duty towards such child.
    3. Electricity, § 10

      —when electric company not bound to inspect work of another. An electric lighting and power company, which is engaged in the business of supplying light and power to buildings in a city, and, in pursuance of its contract, has connected its wires with wires that have been placed on a building by another person, owes no duty to the owner of the building to investigate and inspect the work of such other person, so as to make it liable for injuries sustained by another person as a result of the faulty construction by such other contractor.
    4. Electricity, § 7

      —what is proximate cause of injury. The proximate cause of an injury to a child which met its death as a result of coming into contact with a charged electric ground conduit pipe extending alongside a building into the ground is the charging of the ground conduit pipe with electricity, where such pipe becomes charged owing to insufficient grounding, and not any negligence of a lighting company which had fulfilled its contract by connecting its service wires with those in the conduit alongside the building, and which had been installed by another person.
    Error to the City Court of East St. Louis; the Hon Robert H. EYannigan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed May 1, 1915.
    Rehearing denied July 7, 1915.
    Barthel, Farmer & Klingel, for plaintiff in error.
    Keefe & Sullivan, for defendant in error.

       §ee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

Defendant in error filed in the City Court his declaration in case consisting of one count against plaintiff in error and the Acme Electric Company and H. C. Windt, alleging damages in the sum of $5,000. That plaintiff in error was on the 9th day of October, 1912, and for a long time prior thereto, possessed of and operating a certain electric light and power plant in said county of St. Clair, and was on said day possessed of and using certain poles, other equipment and appliances upon, along and over certain public streets in the city of East St. Louis under certain franchises of said city, and on said day was furnishing electricity for lighting purposes to one of the public school buildings in said city ° situated near the corner of Broadway and Tenth streets, known as Lincoln School, and had its electric wires and lighting appliances extended along and upon certain streets and to and upon said building for the purpose of furnishing an electric power circuit to said school building.

It is further alleged that said electric wires of plaintiff in error were connected with the power circuit wiring placed upon the said school building by the, other defendants, Acme Electric Company and H. C. Windt, thus furnishing the means by which plaintiff in error furnished the power to the mechanical appliances used in said school building; that it therefore became the duty of plaintiff in error to use care commensurate with the dangers resulting to persons liable to come in contact with the line over which its current was being delivered, considering the dangerous character of the element being delivered; but plaintiff in error, disregarding its duty, negligently and carelessly omitted to provide lightning arresters or other appliances on its secondary wires to prevent heavier currents from being carried into said school building over its wires than the wiring of such building was capable of safely carrying.

It further alleges that the defendants, Acme Electric Company and H. C. Windt, under an arrangement with the Board of Education of the City of East St. Louis, undertook to wire said building in a proper workmanlike manner with such wiring as was reasonably safe to conduct the electricity from wires of plaintiff in error to the portions of said school building, where it was required for power purposes; and in performance of the work so undertaken by the defendants it was necessary to drive an iron or steel shaft to which a ground wire was attached into the ground on the outside of said building to such a depth as would constitute a proper conductor; that said defendant negligently failed to insert said iron or steel shaft to a sufficient depth to become a proper conductor and negligently failed to seal the conduits in which wires were inclosed, thereby permitting water to enter and damage the insulation.

That prior to the injury herein complained of, a heavy current of electricity was conducted upon and from the wires of plaintiff in error to the wiring from said school building because of the negligent failure of plaintiff in error to properly guard against such a current, whereby the insulation was burned from the wires inclosed in one of said conduits on said building, whereby the said conduit became charged with electricity, which charge of electricity was therefrom communicated to the iron or steel shaft extending into the ground on the outside of said building; and that on account of the negligent failure of the defendants Acme Electric Company and H. C. Windt to sufficiently insert said iron or steel shaft into the ground, electricity was prevented from escaping into the earth, and that by reason thereof said iron or steel shaft became heavily charged with electricity.

Defendant in error further alleges the iron or steel shaft was on the outside of said school building and in the school yard, used as a playground by defendant in error’s intestate and other children attending said school; that the fact said shaft was so charged was unknown to defendant in error’s intestate and the other school children and was not discoverable in the exercise of ordinary care; that on the 9th day of October, 1912, while the intestate, who was then a boy attending said school, was at play in the said school yard and while exercising due care he came in contact with said iron or steel shaft, receiving therefrom a charge of electricity from which he died. Allegation as to next of kin, and damages $5,000.

The plaintiff in error filed to this declaration a special demurrer which was afterwards withdrawn and the plea of not guilty and a special plea filed, denying that plaintiff in error owned or possessed wires, appliances, irons or tubes by and through which defendant in error’s intestate received the shock which caused his death. The defendants Acme Electric Company and H. C. Windt filed plea of not guilty. A trial by jury resulted in finding all defendants guilty and assessing the damages of defendant in error at $2,000. Motion for new trial overruled and judgment on verdict.

Error is assigned by plaintiff in error alone. It will therefore be unnecessary to discuss either the law or the evidence as applied to defendants Acme Electric Company and H. C. Windt, as the judgment against them has not been appealed from and stands.

The undisputed evidence as to the surroundings where the accident occurred are: That plaintiff in error, engaged in the manufacture and sale of electricity for lighting and power purposes by franchises, had poles and wires in the streets of East St. Louis. One of these poles was near the comer of Eleventh and Broadway streets, about four hundred feet from the school building in question, upon which pole was the primary wire carrying 2200 volts of electricity and a transformer which is used to reduce or step down the voltage in this ease from 2200 to 440 volts. The plaintiff in error had from this pole extending to the school building in question three secondary wires attached to the building by staples and insulators and connected with the wires of the Board of Education near the upper end of a conduit pipe upon the side of the building about eighteen feet from the ground, an ordinary gas pipe placed perpendicularly with a joint at the lower end passing through the wall to the inside about ten feet above the ground. At a point about two feet below this joint on the outside of the building another iron pipe was placed perpendicularly against the building, known as the “ground pipe.” A number four or six copper wire connected this conduit pipe from the angle or joint from the outside with this ground pipe. Insulated copper wires were placed in the conduit pipe extending out of the pipe about six inches on the inside of the building and connecting up motors and machinery which were installed by the Board of Education in the year 1910 by contract with the defendants Acme Electric Company and H. C. Windt, and after installation examined and a certificate issued by the city electrician. The day of the injury there had been a thunderstorm in the morning between 9 and 10 a. m. The accident occurred about 1 p. m. An examination after the accident revealed the following facts: Transformer in good condition; secondary'wires of plaintiff in error carrying about 440 volts. Insulation in conduit was broken at the angle where same went through the wall. The ground conduit instead of extending into the earth about twelve to eighteen inches from top of ground turned out from building and was imbedded in cinders, making it a nonconductor of electricity. The ground conduit had been placed there for the purpose of taking care of the leakage of current on the conduit pipe and from the evidence would have done so had it been driven into the earth as was intended. This pipe at the time of the accident was found to be charged with the same voltage of electrical current that was carried by the service wires on the building. This was a school for colored children, and the deceased, Boy Colvin, about nine years of age, at play, caught hold of this ground conduit and was electrocuted.

The plaintiff in error argues errors assigned in the admission of evidence, refusal to permit cross-examination of witnesses, in limiting the time of argument, the refusal of instructions, and the giving of improper instructions for defendant in error. The above errors, if this ease was tried upon a correct application of the law to the facts, would not be reversible error, but as we differ with the trial court as to the law to be applied to the admitted facts and for that reason find it necessary to reverse on the merits, we will not discuss the above errors separately but will proceed to a discussion of the errors argued that we think control any finding to be made:

First. The sufficiency of the declaration to sustain the verdict.

Second. The negligence of plaintiff in error.

Third. Was any negligence of the plaintiff in error the proximate cause of the accident.

The declaration upon which this case was tried consists of one count and must be tested under the rule applicable after verdict. There is no dispute as to the rule but the application of the rule. “A verdict will aid a defective statement of a cause of action by supplying facts defectively or imperfectly stated or omitted which are within the general terms of the declaration.” Sargent Co. v. Baublis, 215 Ill. 428.

The converse of this proposition is not true. That where facts or conclusions are stated in a declaration which do not constitute a cause of action, the verdict will not aid or assist in supplying the cause of action. The defendant in error recognizes this as a rule of pleading well established. Plaintiff in error makes three complaints as to this declaration under the evidence : First. A duty; second, a breach of the particular duty pleaded; third, an injury to defendant in error resulting from such a breach of duty.

A breach of duty was alleged by way of stating the construction of the wires, poles and connections of plaintiff in error with this school building but in no way connecting plaintiff in error with any duty to either wires, appliances attached to school building, or to defendant in error. The allegation as to breach in disregarding its duty in that behalf, negligently and carelessly omitted to provide lightning arresters or other appliances on its secondary wires, to prevent heavier currents from being carried into said school building over its wires than the wiring of said building was capable of safely and properly carrying. There is no averment that lightning arresters were necessary for the safety of the wiring of the building or protection of any one. There is no averment of either facts or conclusions that any duty rested upon plaintiff in error to prevent heavier currents from being carried into said building over its wires than the wiring of said building was capable of safely and properly carrying.

Defendant in error says this may be supplied by inference. That would be supplying by inference the essentials to a cause of action. It is said that good pleading only required sufficient facts to be stated to raise a duty under the law. There are no facts averred that the plaintiff in error had done anything or failed to do anything that it owed either to the school board or defendant in error over the wiring and appliance supplied by others than plaintiff in error. Defendant in error by his declaration recites a breach of duty, and the only attempt found in the declaration to connect plaintiff in error with a breach of duty is, as follows: ‘ ‘ That prior to the injury a current of electricity was conducted upon and over the wires of the defendant (plaintiff in error), to the wiring from said school building, because of the negligent failure of defendant, (plaintiff in error) to properly guard against such a current whereby the insulation was burned from the wires inclosed in one of the said conduits, * * * the conduit became charged with electricity and was communicated to the steel shaft entering the ground, etc.”

It is not charged that electricity was not to pass over these wires when from a reading of the declaration the contrary appears to be the fact. It is not charged that more than an ordinary charge passed over these wires. There is no charge that this current or charge of electricity caused the injury. There is a charge that the negligent construction and failure of the defendants Acme Electric Company and H. C. Windt to sufficiently insert the steel shaft into the ground that it became heavily charged, and that defendant in error’s intestate came in contact therewith and was killed.

This declaration either by statement of facts or conclusions fails to state a cause of action against plaintiff in error as to any duty it owed defendant in error in the way of construction or in the handling of its current, and it would follow no duty, no breach of duty, and no connection between breach of duty and injury.

The declaration is an attempt by innuendo and inference after verdict to hold plaintiff in error to account for the mistake in construction of some one else upon the theory that electricity is a dangerous agency, which is admitted. That does not mean that when two or more contractors are responsible to the same authorities that one of them must assume that the other does not understand his business, and because he does not so assume and-examine into what the other has done becomes liable for not doing so. If there was an allegation that by the exercise of reasonable diligence these defects could have been discovered or that plaintiff in error knowingly did something or failed to do some act it should have done, a different case would be presented. The law applicable to this declaration as to its allegations against plaintiff in' error is found in the case of Devaney v. Otis Elevator Co., 251 Ill. 28:

“The essential elements of a cause of action for negligence are: (1) The existence of a duty on the part of the person changed to protect the complaining party from the injury received; (2) a failure to perform that duty; and (3) an injury resulting from such failure. When these elements concur they constitute a cause of action for negligence, and the absence of any one of these would render the pleading bad.”

What has been said as to the declaration would apply with equal force to plaintiff in error’s second and third assignment of error:' “Negligence of plaintiff in error,” and “the proximate cause of the accident.” The evidence connecting plaintiff in error with this injury is more uncertain and indefinite than the pleadings. The undisputed evidence as to the negligence of plaintiff in error as argued by defendant in error is that it was responsible for its failure to investigate and discover the defect and failure of the ground conduit to be properly inserted in the earth.

It is claimed by defendant in error that because plaintiff in error was handling a dangerous agency it was its duty, notwithstanding it was contracted with and paid for connecting its wires on to wires that had been put in, and inspected by some other person, to make an investigation and inspection of all of such work, and if it failed to do so it became liable for all injuries occurring by reason of faulty construction of some other persons. While defendant in error cites some authorities so holding, they are from other jurisdictions. We do not understand that our courts intend to go so far but only to hold for reasonable diligence.

The responsibility of plaintiff in error ceased when it coupled on to a conduit erected by the school board for that purpose and that conduit was apparently safe.

When we take this view of the law as to the responsibility of plaintiff in error as to this construction, it is not necessary to extend this opinion into a discussion that there is no evidence showing that any negligence of plaintiff in error is the proximate cause of the injury. The proximate cause of the injury was the charging of this ground conduit with electricity, and it was charged because it was not properly driven into the earth, for which plaintiff in error was not responsible. The burden was assumed by defendant in error to plead and prove that plaintiff in error did something or failed to do something the law imposed upon it as a duty, and this burden was carried by defendant in error throughout the trial.

A peremptory instruction was offered by plaintiff in error at the close of evidence for defendant in error and again at the close of all the evidence and refused, and this was error for which the judgment must be reversed, and as there is no controversy over the facts that under the law could inure to the benefit of the defendant in error, the judgment will be reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact. We make the following finding of fact to be made and entered as a part of the judgment:

We find as a fact that plaintiff in error was not guilty of any negligence that contributed to the injury.