text:
    Henry Nichols, Appellant, v. Union Stock Yards & Transit Company, Appellee.
    Gen. No. 20,325.
    1. Bailment, § 12

      —who has burden of proving negligence in case of fire. The law will not presume negligence where the failure of the bailee to deliver is explained by the fact that the goods bailed have been destroyed by fire and the bailee is therefore unable to deliver them, and the burden of proving negligence in such case is on the bailor.
    2. Bailment, § 25*—when agister’s negligence question for jury. In an action to recover for the loss by fire of cattle placed in defendant’s hands as an agister, evidence held, to present a question for the jury whether if defendant had exercised ordinary care the plaintiff’s cattle could have been removed from the pens before being reached by the fire.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    Rehearing denied May 8, 1915.
    Barger & Hicks, for appellant; C. O. Carlson, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; John D. Black, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The appellant, Henry Nichols, hereinafter called the plaintiff, sued the appellee, Union Stock Yards and Transit Company, hereinafter called the defendant, in the Superior Court of Cook county, in an action of assumpsit to recover damages for loss by fire, while in the possession of the defendant as a bailee thereof, of certain cattle belonging to the plaintiff. The amended declaration of the plaintiff (who was a dealer in cattle at the Union Stock Yards, Chicago) contained four counts, each of which alleged, in substance the delivery to and receipt by the defendant in certain pens in said yards of sixty-five head of steers belonging to the plaintiff; the promise of the defendant to care for and safely and securely keep the cattle while in its possession, and the loss by fire of the said cattle while in the defendant’s possession by reason of the negligence of the defendant in the care and keeping of the same. To this amended declaration the defendant filed two pleas: . First, the general issue, and second, a special plea to the effect that the cattle were not killed or destroyed while in the possession of the defendant by reason of its negligence in the care and .keeping of them. The case was tried before a court and jury, and at the close of the evidence for the plaintiff the defendant moved to have the court direct a verdict in its favor, which motion was refused by the court. The defendant then presented evidence in its behalf, and at the close of all the proof it again moved the court to direct a verdict in its favor and tendered its written instruction in that behalf, and thereupon the court gave to the jury the following instruction:

“Upon thé close of the evidence in this case, the court deems it, as a matter of law, its duty to advise the jury that the plaintiff has not, as a matter of law, established any liability against the defendant herein, by reason of the allegations in the plaintiff’s declaration, and by reason of each of the law counts therein, not being sustained by the evidence offered and received. The jury will retire and consider this instruction, and-if agreeable thereto, under the evidence in the case, they will return a verdict finding the issues for the defendant.”

The jury thereupon retired to consider their verdict and afterwards returned into court the following verdict: “In view of the instruction of the court as to the law, and while not expressing our personal views in this case, we, the jury, find for the defendant.” The defendant objected to this verdict being received because of its form, and thereupon the court further instructed the jury orally that the evidence in the case did not show any negligence on the part of the defendant, and that the jury, if they followed the court’s instruction, must adopt the form of verdict submitted to them. The jury thereupon retired and afterwards returned into court a verdict for the defendant in the ordinary form. The plaintiff’s motion for a new trial was overruled, judgment was entered on the verdict and this appeal followed.

It is conceded that the defendant was a bailee or agister of the cattle at the time they were destroyed by the fire, and that it was bound to exercise ordinary care for the preservation of the cattle.

The plaintiff contends that proof of the loss or destruction of the cattle while in the custody and possession of the defendant as such bailee raised a presumption of negligence on the part of the defendant and cast upon it the burden of showing that it exercised ordinary care of the cattle, and that the loss of the same resulted without its fault. The plaintiff further contends that when the motion to direct a verdict was made at the close of all the evidence, “even if the evidence of appellee as to the care taken of the cattle was wholly uncontradicted, whether or not it overcame the presumption of negligence raised by proof of the loss of the cattle while in its possession, and whether or not appellee, under all the evidence, was guilty of negligence and want of due care, depended upon the credibility of the witnesses and involved weighing all the evidence to determine the preponderance,” and that the trial court therefore had no power to direct a verdict for the defendant. The plaintiff further contends that regardless of the question as to whether or not proof of the loss of the cattle by fire while in the possession of the defendant rebutted the presumption of negligence on the part of the defendant and cast upon the plaintiff the burden of showing that the defendant did not exercise ordinary care of the cattle, there was evidence in the record, when all the proof was in, from which the jury, without acting unreasonably in the eye of the law, could find that the defendant had not exercised ordinary care in the keeping of the cattle, and that the loss resulted from such conduct and that therefore the trial court had no power to direct a verdict for the defendant.

The defendant contends that there is no evidence in the record tending to show that the defendant failed to exercise ordinary care for the preservation of the cattle, and that the trial court Was therefore justified in directing a verdict for the defendant at the conclusion of all the evidence. The defendant further contends that as it appears from the declaration of the plaintiff and from the evidence introduced in its behalf in its original case- that the cattle were destroyed by fire, such fact prima facie rebuts the presumption of negligence that ordinarily arises ip cases of bailments of this character, and casts upon the plaintiff the burden of showing negligence on the part of the defendant, and that the plaintiff has failed to successfully carry this burden.

The plaintiff insists that the mere proof of the loss of the cattle by fire did not rebut the presumption of negligence in this case and that it devolved upon the defendant to show that it had exercised the proper degree of care required by the nature of the bailment. The question as to which party carried the burden in the present case is an important one, and it has received careful consideration at our hands. There is no doubt that in a case of bailment like the present one, where there is a total default in delivering or accounting for the property bailed, this fact is treated as prima facie evidence of negligence on the part of the bailee, and it devolves upon him to show that he has exercised the degree of care required by the nature of the bailment. This rule proceeds upon the theory that the facts surrounding the care of the property by a bailee are peculiarly within his knowledge and power to prove, and that the enforcement of any other rule would impose great difficulties upon bailors. But it would also seem to be the law that where the failure to deliver is explained by the fact 'appearing that the goods bailed have been lost, stolen or destroyed by fire and the bailee is therefore unable to deliver them, the law will not presume negligence, and the onus or burden of proving the same passes to the bailor. Claflin v. Meyer, 75 N. Y. 260; Jones on Evidence (2nd Ed.) p. 223; 2 Kent’s Com. p. 587; Lamb v. Camden & A.R. & Transp. Co., 46 N. Y. 271; 3 Am. & Eng. Encyc. of Law (2nd Ed.) p. 751; Knights v. Piella, 111 Mich. 9 (Hunter v. Ricke Bros., 127 Ia 108; Schouler on Bailments (2nd Ed.) p. 31; Standard Brewery v. Hales & Curtis Malting Co.; 70 Ill. App. 363, affirmed 171 Ill. 602; Ford Motor Co. v. Osburn, 140 Ill. App. 633; Bryan v. Chicago & A. R. Co., 169 Ill. App. 181. The plaintiff cites in support of its contention several Illinois cases, none of which, we think, sustains its position. In Cumins v. Wood, 44 Ill. 416, the court apparently recognizes the rule that the presumption of negligence is rebutted where it appears that the goods have been destroyed by fire, but holds that the amount of the verdict in that case did not exceed the value of certain of the goods bailed that were not destroyed by fire. The cases of Hudson v. Bradford, 91 Ill. App. 218; Funkhouser v. Wagner, 62 Ill. 59; Chicago & A. R. Co. v. Peoria & P. U. Ry. Co., 157 Ill. App. 583 (also cited by the plaintiff) simply followed the general rule that was laid down in Bennett v. O’Brien, 37 Ill. 250, to the effect that where personal property is placed in the hands of a bailee in good condition, and is not returned at all or is returned in a damaged state, then in an action against the bailee by the bailor, the law will presume negligence on the part of the bailee and will impose upon him the burden of showing that he exercised such care as was required by the nature of the bailment. We think that the rule that appears to govern the burden of proof in this case is not a good one, and we agree with Mr. Justice Peckham (dissenting opinion Lamb v. Camden & A. R. & Transp. Co. supra) that it is illogical and unreasonable to hold that the presumption of negligence in cases of this kind is rebutted by the bailee, by simply proving that the property bailed was destroyed by an ordinary fire which broke out on the bailee’s own premises, without regard to the care exercised by the latter to prevent the fire or to save the property after the commencement of the fire. All the authorities seem to agree that the rule that there shall be a presumption of negligence in bailment cases like the present one, where there is a default in delivery or accounting for the goods, is a just and necessary one, and we think that it works a destruction of this wholesome rule to permit the presumption to be overcome by mere proof that the goods were destroyed by fire. But we must enforce the law as we find it, and we are therefore compelled to hold that the position of the defendant on the question now before us for consideration is sustained by the authorities.

As the plaintiff tried its case upon the theory that the presumption of negligence applied in this case and introduced no proof touching the care exercised by the defendant as to the cattle, the court would have been justified under the law in sustaining the defendant’s motion to direct a verdict for it at the close of the plaintiff’s evidence, but the defendant did not see fit to rest its case on the plaintiff’s evidence, and it introduced proof in its defense, and the question for us to decide is, was there any evidence in the entire record from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that the defendant had not exercised ordinary care for the preservation of the cattle ? If there was, the court had no right to direct a verdict for the defendant at the conclusion of all the evidence.

The record is silent as to how the fire started, but it is clear that it did not start in the pens in which the cattle of the plaintiff were kept. The defendant was not only required to exercise ordinary care to prevent the starting of the fire, but it was also required to exercise ordinary care to save the cattle after the fire started. After a careful examination of all the evidence bearing on the question of the care exercised by the defendant in the care of the cattle, we have reached the conclusion that there is evidence in the record from which, if it stood alone, a jury could, without acting unreasonably in the eye of the law, find that if the defendant had exercised ordinary care after the fire was discovered the cattle belonging to the plaintiff could have been liberated from the pens in which they were confined, before the fire reached said pens, and saved. This conclusion necessitates a reversal of this case.

The judgment of the Superior Court of Cook county will be reversed and the cause remanded for a new trial.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Johanna Ran Longhi, Appellee, v. Emilio Longhi, Appellant.
    Gen. No. 20,338.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Bill by Johanna Rau Longhi against Emilio Longhi in the Circuit Court of Cook county for separate maintenance. The bill charges adultery, cruelty and desertion. Decree finding the defendant guilty of cruelty and desertion. The complainant was awarded eighty dollars per month for her support, and twenty dollars per month for the support, education and maintenance of their child, and one hundred and twenty-five dollars for solicitor’s fees. Defendant appeals.

      Abstract of the Decision.
    1. Husband and wife, § 211

      —when separation agreement valid. An agreement between the husband and wife for separate maintenance of the wife, which is free from fraud or duress, and which makes an equitable provision for the wife, considering the station in life of the parties, is valid and is a bar to a separate maintenance proceeding brought by the wife, but they cannot by such an agreement between them deprive a court of chancery of its power over the care, custody and support of the minor children of the parties.
    2. Husband and wife, § 267*—when award in separate maintenance .not disturbed. In a bill for separate maintenance, the amount of the allowance that shall be decreed rests in the judicial discretion of the chancellor, which is subject to review, but the amount .allowed will not be disturbed on appeal unless he has abused his discretion.
    3. Husband and wife, § 243*—when award in separate maintenance not excessive. In a separate maintenance proceeding, an award of eighty dollars per month for the support of the wife and twenty dollars per month for their minor daughter, held not excessive although defendant had previously transferred valuable property to complainant, same not producing any income at the time of the decree.
    4. Husband and wife, § 239*—when chancellor may change allowance in separate maintenance. Upon application, the chancellor may at any time after making an allowance in an action for separate maintenance make such alterations in the allowance for maintenance as are reasonable and proper.
    Gorman, Pollock, Sullivan & Livingston, for appellant.
    John C. Mechem, for appellee; Mechem & Bangs, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Brownell Machinery Company, Appellee, v. Aza O. Walworth, trading as A. O. Walworth & Company, Appellant.
    Gen. No. 20,351.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remarfded.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by Brownell Machinery Company, a corporation, against Aza O. Walworth, trading as A. O. Walworth & Company, in the Municipal Court of Chicago for the sum of $2,097.69 for certain machinery sold by the plaintiff to the defendant.
    The case was tried before a court and jury, and sometime during the morning of November 13, 1911, the jury retired to consider their verdict. Thereafter, about noontime of the same day, the jury returned into court, “and announced that they had reached a verdict, which verdict was handed to the clerk, opened, and read in open court as follows: ‘We the jury find the issues for the plaintiff and assess its damages at $581.62, ’ which verdict was received by the court. The jury then retired and was allowed to separate for lunch and was directed to return at 2 p. m. The clerk made a memorandum of said verdict upon the half-sheet and minute book.” At two o’clock on the afternoon of the same day, the jurors, who had tried the case, were called back into the box by the court and the following occurred:
    “The court: Gentlemen of the jury, in this case I dislike very much to be compelled to take this course, hut I see no other way. We have been a day and a half trying the case, and the verdict could not stand. This is your first day, and perhaps you haven’t yet learned that certain verdicts can’t stand. Unless the verdict is responsive to both the law and the facts, it can’t stand; and it is the duty of the judge to set it aside. Of course, many verdicts are set aside. Some jurors sometimes think that their verdicts are final; they are not at all. The court has the power to set it aside, and it is not only the power, but it is the duty of the court to set a verdict aside if it does not respond to the evidence and the law involved. This verdict does not. There is no possible ground or theory upon which a verdict for $581 could be sustained in this case. Either it must be a verdict for the whole amount, or a verdict for no amount whatever.
    The parties in litigation in any trial may compromise their own cases; that is up to them. Neither the judge nor the jury has the right to compromise the parties’ cases. We may find simply for one party or another, but it is none of our business, this matter of compromising cases. We can’t compromise- their cases for them; they can compromise their own cases. You have the right to find the rights of the parties in cases, and then it is up to them to compromise, if they choose. We can*t compromise, and I am not criticising you because perhaps in this case you sought to compromise between the parties; but such verdicts are set aside one right after the other.
    Now, in this case, either this plaintiff is entitled to recover the full amount or it is not entitled to recover anything at all. I said to counsel here, there might be possibly a question here as to the right of the plaintiff to recover for the services of a watchman during the time when this machinery'was in this building; that was the only question in the case. The question, however, was not controverted upon the trial, and therefore nothing was said about it. I have therefore stricken from the claim of the plaintiff, of $1,365.29, the amount charged for watchman, $132, leaving a balance of $1,233.29.
    Mr. McCormick: Let the record show that the plaintiff consents to striking out that amount.

      Abstract of the Decision.
    1. Tbial, § 260

      —when court cannot direct jury to return different verdict. When the verdict of the jury has heen- announced, received and recorded it is final, and the court has no power to recall the jury after they have been dismissed and direct a different verdict.
    2. Tbial, § 261*—when jury may correct verdict. Until a verdict is received and recorded it is not considered valid and final, and it lies in the power of the jury to alter, amend and correct the same, but not afterwards.
    3. Tbial, § 260*—when court may correct verdict. If a verdict returned by the jury is defective or informal, the court may send the jury back with directions as to how the verdict should be made up, or if the verdict is good, in substance, the court may after verdict, even at a subsequent term, if the case is still pending, amend the verdict as to matters of form but not as to matters of substance.
    The Court: And I will therefore direct you to sign a verdict for that amount. This amounts then, gentlemen, simply to this, that the court directs the verdict; and that being so, it is a question then for the defendant; if the court has made an error, of course the defendant will take advantage of that error upon appeal. You may therefore sign this verdict for $1,233.29.”
    Thereupon the jury, acting under the instruction of the court, returned a verdict for the plaintiff for $1,233.29, and the clerk of the court, also acting under the orders of the court, erased from the half-sheet and minute book the memorandum of the verdict for $581.62. Proper objections were made and exceptions were preserved by the defendant to the aforesaid action of the court. A motion for a new trial was overruled ; judgment in favor of the plaintiff for $1,233.29 was entered, and this appeal followed.
    Lighthall & Blake, for appellant.
    Bryan, McCormick & Wilber, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice G-ridley

text:
    Mexican Import Company, Appellant, v. Pennsylvania Railroad Company et al., Appellees.
    Gen. No. 20,811.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 4, 1915.
    Statement of the Case.
    Action "by Mexican Import Company, a- corporation, plaintiff, against Pennsylvania Railroad Company, a corporation, Pennsylvania Company, a corporation, and Pittsburg, Cincinnati, Ckicag’o & St. Louis Railway Company, a corporation, defendants, to recover damages occasioned by reason of defendants’ alleged failure to exercise proper care in the handling and transportation of two carloads of tomatoes, and by reason of alleged unreasonable delay in the transit thereof, whereby the freight was either chilled or frozen.
    From a judgment for defendants entered on a verdict directed on their motion, plaintiff appeals.
    The defendants filed a joint affidavit of merits deny: ing that the damage, if any, to the tomatoes was occasioned by any failure on their part to exercise proper care while the same, were in their possession and control, or that there was any unreasonable delay in the transit of the same, and alleging that if the freight was damaged, the damage was incurred prior to the time of delivery to the defendants, and that the freight was delivered to the consignee in the same condition as when delivered to the defendants.
    Plaintiff’s evidence disclosed the following facts in substance: Refrigerator car “P. F. E. 10026,” loaded with tomatoes from Mexico and consigned to plaintiff at Chicago, arrived in Chicago over the tracks of the Chicago, Bock Island and Pacific Bailroad Company on Saturday evening, December 30, 1911, and was placed on a team track of said railroad company. On Sunday morning, one Davies, an inspector of fruit and vegetables and employed by plaintiff to examine the condition of the tomatoes, went to the team track with one Taylor, manager for plaintiff, and there met the foreman of the team track; the seal of the car was broken, one of the doors was opened, and Davies and Taylor went into the car. Davies testified in substance that he was inside the car from twenty to thirty minutes; that during all this time said door remained open; that it was “very cold,” that the temperature was less than twenty degrees above zero, and that it was “awful windy;” that there was an alcohol-fed heater in the bunkers of the car, which raised the temperature of the car; that the tomatoes were loaded in boxes, each box containing four square baskets and each basket containing about fifteen or twenty tomatoes, each wrapped in paper; that there was space for ventilation between the tiers of boxes; that he examined the various boxes in the usual manner and saw about four or five per cent, of the load; that none of the tomatoes which he examined were chilled or frost-bitten; that from his examination he reached the conclusion that all of the tomatoes were in a good, merchantable condition and fit for shipment to New York City and other eastern markets; that upon coming out of the car he personally closed the door and said foreman put seals on the car; and that then the witness left and did not again see the car. Three days after said examination, on January 3, 1912, plaintiff gave orders through the Chicago office of the Pacific Fruit Express that said car be reconsigned to plaintiff at Philadelphia, Pennsylvania, and the car was started for that destination. On- the afternoon of January 5, 1912, plaintiff telephoned the office of the Pennsylvania Company in Chicago directing it to divert said car, then en route to Philadelphia, to “Mexican Import Company, New York City; notify Lyon Brothers, New York City.” Plaintiff’s evidence did not show that any further examination was made of the contents of the car until it reached New York City or what was the condition of the tomatoes when plaintiff gave said reconsignment order, or what was the temperature in Chicago from December 31, 1911, to January 3, 1912. The car arrived in New York City and was unloaded on the morning of January 8, 1912, at the piers of the defendant Pennsylvania Bailroad Company. It was found that the tomatoes were greatly damaged, that those which had been near the doors of the car were frozen and that the others were badly chilled. Subsequently, the entire carload was sold for $43.15.1
    Befrigerator car “P. F..E. 3997,” also loaded with tomatoes from Mexico and consigned to plaintiff at Chicago, was placed on a team track of, the Chicago and Eastern Illinois Bailroad Company in Chicago on January 24, 1912. Davies testified, in substance, that at the request of plaintiff he examined the contents of this car on January 24, 1912; that the temperature was then about twenty-four degrees above zero; that he was engaged in said examination from twenty to thirty minutes, during which time one of the doors of the car was open; that there was an alcohol-fed heater in the car which raised the temperature of the car; that he made an examination similar to that made of the contents of car No. 10,026, and found the tomatoes in good condition and fit for shipment to New York City. Two days thereafter, on January 26, 1912, plaintiff, through said Chicago office of the Pacific Fruit Express, reconsigned said car, No. 3,997, to “Mexican Import Company, New York City; notify Lyon Brothers Company.” It does not appear that any further examination was made of the contents of this car until it reached New York City and was unloaded on the morning of February 1, 1912; neither does it appear what was the condition of the tomatoes on January 26, 1912, or when the car reached the tracks of any of the defendants. When the ear was unloaded in New York City some of the tomatoes were found to be badly chilled and damaged. The tomatoes were sold for $768.25. i
    Counsel for plaintiff did not contend that the shipments of said tomatoes, contained in said two cars, were continuous shipments from Mexico to New York City, but they stated in their reply brief: “When shipping directions were given by plaintiff for these cars at Chicago, to send them to New York, they were on the team tracks of the Chicago, Bock Island & Pacific and "the Chicago & Eastern Illinois Bailroads, respectively. Those railroads were the initial carriers in the transits to New York City, and they moved the cars from Chicago, to the next carrier en route.” Counsels’ position was that defendants were connecting and delivering carriers, that a sufficient prima facie case against them, as such carriers, was shown by the evidence, and that the court erred in instructing the jury at the close of plaintiff’s case to find for the defendant.
    Plaintiff’s evidence did not disclose that there was any unreasonable delay in the transit of either car from Chicago.
    Charles A. Butler, for appellant; Franklin Raber, of counsel.
    Loesch, Scofield & Loesch, for appellees.

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

   Mr. Justice G-ridley

delivered the opinion of the court.

Abstract of the Decision.

1. Cabbiebs, § 199*—when connecting carrier presumed to have received freight in good condition. The presumption is that goods which have been received by the initial carrier in good condition are received in a similar condition by each successive carrier up to the carrier making the delivery, and where the goods are in bad order upon delivery, the burden is on the delivering carrier to show that it provided proper means of transportation and exercised the degree of care which the goods required, or that the damage occurred before it received the goods.

2. Cabbiebs, § 199*—what burden on shipper in action against delivering carrier. In an action by a shipper against the last of a series of carriers to recover for damage to freight, the burden is on him to show that the freight was in good condition when delivered to the initial carrier and that it was damaged when it arrived at its destination.

3. Cabbiebs, § 139 —when evidence insufficient to show that freight was in good condition on delivery to carrier. In an action against the last connecting carrier for injury to a shipment of tomatoes, by freezing or chilling, evidence that one car of the shipment, which consisted of two cars, was examined two days before the delivery to the initial carrier, and the other three days before, is insufficient to raise the presumption that' the freight was in good condition when delivered to the initial carrier, where it appears that the weather between the time of examination and the time of delivery was very cold and that the cars were opened for the examination.


author: Mr. Justice Gridley

text:
    James Wells, Appellee, v. Village of Wilmette, Appellant.
    Gen. No. 20,883.
    . 1. Municipal cobpobations, § 407*—when liable as trustee for improper distribution of special assessment fund. Where a municipality which had collected the full legal amount of the principal and interest of certain instalments of a special assessment applied the fund to the payment of outstanding bonds, and interest thereon, issued against the instalments, in the order of their presentation, with the result there were no funds to meet plaintiffs two bonds which were presented last, owing to the tact that the interest on the bond issue exceeded the interest on the assessment, the failure of the municipality to prorate the interest among the bondholders amounts to a misappropriation of plaintiff’s proportionate share of the fund, which renders the municipality liable to him therefor.
    2. Municipal corporations, § 407

      —when treasurer required to prorate interest payments out of special assessment fund. It is the duty of the treasurer of a municipality to keep an account of the receipt of the principal and interest of the several instalments of a special assessment fund and of the amount of bonds outstanding against the instalments, and to prorate the payment of interest where necessary, even though he does not know who owns the outstanding bonds.
    3. Municipal corporations, § 148*—when liable for wrongful distribution of special assessment fund by treasurer. Wrongful distribution of a special assessment fund by a village treasurer to the detriment of the holder of bonds issued against the fund renders the village liable, although the matter of the distribution was not brought to the attention of the village trustees until some time after it was made.
    4. Municipal corporations, § 407*—lohen not relieved from prorating interest in distributing special assessment fund. The facts that the statute authorizing bond issues against special assessments gives municipalities the privilege of redeeming the bonds at the time of any annual payment of interest and permits any property owner to pay his assessment with such bonds which are to be accepted for their par value, and accrued interest, do not relieve the municipality from prorating the interest payments on the bonds where the interest on the assessment is insufficient to pay the interest on the bonds.
    5. Municipal corporations, § 403*—when payment of judgment recovered for wrongful distribution of special assessment fund not payment of special assessment bond. Where a judgment is recovered against a village by the holder of a bond issued against a special assessment for a violation by the village of its duty as trustee in distributing the special assessment fund, the payment of such judgment does not constitute the payment of a special assessment bond out of the general funds.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 4, 1915.

      Statement by the Court. This is an appeal from a judgment for $1,050.74, rendered by the Circuit Court of Cook county in an action of assumpsit brought by James Wells, plaintiff, against the Village of Wilmette, defendant, upon two special assessment improvement bonds for $500 each, dated August 31, 1897, and maturing on December 31, 1903, and December 31,1904, respectively. The cause was tried before the court without a jury upon a stipulation as to the facts. Plaintiff’s amended declaration consisted of a special count and the common counts, to which the defendant filed a plea of the general issue, and it was stipulated that all defenses might be raised under that plea without filing special pleas.
    From the stipulation of facts it appears that on July 23, 1896, an ordinance was passed for the paving and otherwise improving of a portion of Central avenue in said village, the cost thereof to be paid for by a special assessment to be levied in accordance with the provisions of the statutes then in force; that a petition was filed in the County Court and the assessment was confirmed on November 28, 1896, for $22,176.11; that the assessment was divided into seven instalments, the first being for $4,629.88 (which was afterwards reduced to $2,613.32, by rebate to the,property owners pursuant to resolution of the board of trustees of said village), and the second and succeeding instalments being each for $2,813.68; that the contract for the doing of the work was let to Charles M. Porter on April 3, 1897, at the price of $17,738.90; that the contract provided, inter alia, that the village should pay the contractor in bonds upon monthly estimates at certain rates for the work actually performed, that the contractor should be paid from the special assessments made for the improvement when collected, and from no other fund and in no other manner save at the option of the village, that the bonds should bear interest at the rate of six per cent, per annum and should be issued in accordance with the provisions of the Act of June 17, 1893 (J. & A. 1479), and might be redeemed at the option of the village in the manner provided for in said act, that the contractor should make no claim ag’ainst the village in any event except from the collection of the special assessments, made or to be made for said improvement, and should take all risk of the invalidity thereof, and that the village should not be liable in any event by reason of the invalidity of the special assessments, or for failure to collect the same; that thereafter the contractor completed the work, which was accepted by the village, and a final estimate was issued to him on October 2, 1897; that bonds in the sum of $16,800, dated August 31, 1897, to anticipate the second and succeeding instalments of said special assessment, were issued and delivered to the contractor, that the accrued interest on said bonds at the "time of their delivery amounted to $76.70, and that a warrant for $862.20, payable out of the first instalment, was also delivered to him, making a total payment to him of $17,738.90, the contract price; that the costs and expenses of making, levying and collecting the assessment were paid out of the first instalment; that tire total amount collected on all seven instalments was $22,176.11, of which $19,495.40 was principal and $2,680.71 was interest, and that the total amount paid out of said seven instalments was $22,176.11; that the total amount collected on the second and succeeding instalments was $20,073.64; that the total amount paid out of said second and succeeding instalments was $20,073.64, of which $15,804.48 was principal and $4,269.16 was interest on said bonds; that the sixth and seventh instalments of the assessment, as confirmed, were each for $2,813.68, which instalments bore interest at six per cent, per annum from and after December 29, 1896; that eight bonds, known as “Series E” bonds and aggregating $2,800, were issued against the sixth instalment of the assessment, of which bonds five were for $500 each, and three were for $100 each; that plaintiff purchased bond No. 4 of said series in the open market for value and before maturity; that by the terms of said bond the village promised to pay to bearer on December 31, 1903, the sum of $500 with interest thereon from date, August 31, 1897, at the late of- six per cent, per annum, payable -annually on presentation of the coupons attached, and it was recited on its face that the bond was issued to anticipate the collection of a part of the sixth instalment of said assessment, which instalment bore interest from December 29, 1896, and that the bond and the interest thereon were payable solely out of said sixth instalment of the assessment token collected, and further that the bond was redeemable at the option of the village at the time of any annual payment of interest, after twenty days’ notice by publication in any newspaper published in Cook county; that eight bonds, known as “Series F” bonds and aggregating $2,800, were issued against the seventh instalment of the assessment, of which bonds five were for $500 each, and three were for $100 each; that plaintiff purchased bond No. 2 of said series in the open market for value and before maturity; and that said last-mentioned bond was for $500, dated August 31, 1897, and maturing December 31, 1904, and was payable solely out of said seventh instalment when collected, and was in other respects similar to said bond No. 4, above mentioned.
    It further appears that the village received on account of said sixth instalment the sum of $3,118.79, which was made up of $2,813.68, the amount of said instalment as confirmed, and $305.11 interest collected thereon, and to this amount of $3,118.79 was added $129.33, transferred from the fifth instalment, making a total of $3,248.12, which sum was all that the village ever collected or received on account of said sixth instalment, and which sum included all interest legally collectible; that this sum of $3,248.12 was all paid out by' the village, of which $2,357.34 was paid on the principal of the bonds, Series E, issued against this instalment, and $890.78 as interest on the bonds; that the interest on all the bonds of said Series E was paid by the village and that the principal of all said bonds was paid in full, except bond No. 4; that the village redeemed two of the bonds of said series before maturity, and not at a date when any annual payment of interest was due, viz.: Bond No. 3, for $500, on April 12, 1900, and bond No. 1, for $500, on February 11, 1902; that at the maturity of the bonds of said series, December 31, 1903, the village paid the principal of bonds Nos. 2 and 5, for $500, each, and also the principal of bonds Nos. 6, 7 and 8 for $100 each, and also the accrued interest on said bonds and the accrued interest on bond No. 4; that on January 3,1904, plaintiff presented said bond No. 4 for payment; that at this time there was in the village treasurer’s hands only the sum of $57.34 to the credit of said sixth instalment; that plaintiff was paid said sum and such payment was indorsed upon the bond as a credit upon the principal thereof, but the village refused to pay plaintiff the balance of the face of the b’ond.
    It further appears that the village received on account of said seventh instalment of the assessment the sum of $3,029.92, which was made up of $2,813.68, the amount of said instalment as confirmed, and $216.24, interest collected thereon, which sum of $3,029.92 was all that the village ever collected or received on account of said seventh instalment, and which sum included all interest legally collectible; that said sum of $3,029.92 was all paid out by the village, of which $2,247.14 was paid on the principal of the bonds, Series F, issued against this instalment, and $782.78 as interest on the bonds; that the interest on all the bonds of said Series F was paid by the village and that the principal of said bonds was paid in full, except bond No. 2 for $500 and bond No. 8 for $100; that the village also redeemed two of the bonds of this series before maturity, viz.: Bond No. 5, for $500, on February 16, 1900, and bond No. 1, for $500, on February 11, 1902; that at the maturity of the bonds of said series, December 31, 1904, the village paid the principal of bonds Nos. 3 and 4, for $500 each, and also the principal of bonds Nos. 6 and 7, for $100 each, and also the accrued interest on said bonds and the accrued interest on bonds Nos. 2 and 8; that the village also paid the sum of $47.14 on the principal of said bond No. 8 (not now in question); that on January 3, 1905, plaintiff presented said bond No. 2 for payment; that at this time there was in the village treasurer’s hands no money to the credit of said seventh instalment or any instalment, and the village refused to pay plaintiff the face of said bond or any part thereof.
    It further appears that all bonds issued to anticipate the collection of the sixth and seventh instalments of said assessment, which were paid, were paid by the village treasurer in the regular course of business; that at no time was the matter of the payment of any of said bonds brought to the attention of the president or board of trustees of sáid village until after January 3, 1905, at which time there was no money in the village treasury available for the payment of the bonds sued upon; that said village on and since January 3, 1905, has received no money for or on account of said assessment or any instalment thereof; and that no part of said assessment or any instalment thereof or any interest thereon remains uncollected.
    It further appears that on July 6, 1897, the village adopted a resolution assuring certain objectors, who had appealed to the Supreme Court, that if they would dismiss their appeal and allow the improvement to be commenced at an early date the village would rebate proportionately to the property owners the excess of the assessment over and above the actual cost of the improvement and the proper costs and expenses of the assessment, and would also cause to be rebated, as far as possible, the accrued interest on the assessment, such rebate to be made before the collection of the assessment, provided that in making such rebate ample provision should be made to take care of the interest on the bonds and to cover contingencies; that' on October 2, 1897, the village adopted a resolution directing the finance committee and the village attorney to ascertain and adjust the amount of the rebate to be returned to the property owners, in order that a certificate might be issued by the village to its collector, authorizing him to credit such rebate on the first instalment; and that on October 17, 1897, the village adopted a resolution authorizing and directing the village collector to make a reduction of forty-five per cent, on the first instalment on each description of property affected by said assessment (such deduction not to apply to the public benefits assessed against the village), and further authorizing and directing-said collector to collect interest on all instalments from and including June 1, 1897, which date was fixed as the day upon which the instalments should begin to bear interest, and stating- that interest which had accrued prior to June 1, 1897, on said assessment should be rebated, and that said collector should act in accordance with the resolution. Counsel for plaintiff (appellee) state in their brief and argument here filed:
    “The 45 per cent, abatement of the first instalment was wholly illegal, but the appellee cannot take advantage of it because as a bondholder he is interested in this action only in the amounts actually collected and disbursed on the sixth and seventh instalments. The 'abatement of interest on all instalments which had accrued prior to June 1, 1897, nullified the recital in the bond that interest ran from December 29, 1896, and was also illegal, but the appellee cannot take advantage of it because the interest so abated.did not reach the village treasurer’s hands.”
    The defendant, Village of Wilmette, on the trial submitted to the court twelve propositions of law. Nos. 1 to 4 inclusive were held as law. But the court refused to hold as law propositions Nos. 5 to 12 inclusive, to which rulings the defendant excepted. The court in effect held, by the refusal of the 5th proposition, that there had been a wrongful diversion by the village of a part of the funds applicable to the payment of the bonds and interest issued against the 6th and 7th instalments respectively; by the refusal of the 6th proposition that all the moneys collected by the village had not been lawfully disbursed; by the refusal of the 7th and 8th propositions that it was not the duty of the village treasurer to pay at maturity the bonds, issued to anticipate the collection of the 6th and 7th instalments respectively, in the order in which they were presented, so far as the funds in his hands to the credit of said respective instalments would reach; by the refusal of the 9th and 10th propositions that all moneys collected by the village on said 6th and 7th instalments, respectively, had not been lawfully disbursed prior to the times plaintiff presented bonds No. 4, Series E, and No. 2, Series F, and demanded payment thereof; and by the refusal of the 11th and 12th propositions that the village is generally liable upon said two bonds because of the failure of the village treasurer to apply the 6th instalment moneys pro rata upon all unpaid 6th instalment bonds, and to apply the 7th instalment moneys pro rata upon all unpaid 7th- instalment bonds. The court ascertained what was the proportionate share of the funds on hand to the credit of the 6th instalment belonging to plaintiff, as the holder of bond No. 4, Series E, on December 31, 1903, and found that the unlawful withholding of that share began January 3, 1904, when payment thereof was refused, and allowed interest, at the rate of five per cent, per annum, on said proportionate share from said date to the date of judgment. Said share and interest thereon were figured at the sum of $542.69. The court also ascertained what was the proportionate share of the funds on hand to the credit of the 7th instalment belonging to plaintiff, as the holder of bond No. 2, Series F, on December 31, 1904, and found that the unlawful withholding of said share beg’an January 3, 1905, when payment thereof was refused, and interest at said rate on said share from said date to the date of judgment. Said share and interest thereon were figured at the sum of $508.05. And the court found in favor of the plaintiff for $1,050.74, which is the total of said two sums, and, after overruling a motion for a new trial, entered judgment on the finding against the village, to the entry of which the village excépted. No complaint is made as to the correctness of the court’s figures, but it is urged that the court erred in entering in this action a judgment in any amount against the village.
    Charles H. Jackson, for appellant.
    Henry F. Hawkins, for appellee; George A. Mason, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Counsel for the respective parties agree that the action of assumpsit for money had and received is an equitable action and lies to recover moneys to which a plaintiff is equitably entitled; that a special assessment when collectéd is a trust fund; that a municipality is a mere instrumentality for the collection of such assessment and its proper distribution among the parties equitably entitled thereto; and that "a municipality incurs no general liability except where it unlawfully withholds moneys actually collected and equitably due the contractor, bondholder or property owner. Counsel for the village does not deny that the' second and succeeding instalments of the special assessment in question, when collected, became trust funds for the retirement of the bonds issued against said instalments respectively, but counsel contends that the village, as trustee, can only be liable for the moneys collected on the sixth and seventh instalments where it appears it has diverted such moneys to purposes other than the payment of the bonds, and interest thereon, issued against said instalments respectively, and that as it appears from the stipulated facts that the amounts of both instalments as confirmed, together with all interest thereon legally collectible, have been collected, and have been disbursed only for the payment of bonds, and interest thereon, issued against said instalments respectively, the village is not liable to plaintiff in this action in any amount on the unpaid bonds held by him. In other words, counsel contends that the village, as trustee, in the present case did its full duty when it paid bonds, and interest thereon, out of the proper instalment fund in the order of presentation to the extent of the fund, and that the remedy of plaintiff, a bondholder who did not present his bonds for payment until after other bondholders had been paid and the respective funds became exhausted, is by way of a supplemental assessment.

Counsel for plaintiff argue that the position taken by counsel for the village is too narrow; that it assumes that if the entire trust fund of a particular instalment of an assessment is used in the payment of bonds and interest there can be no misappropriation of the funds; that it ignores the well-established rules which govern in the disbursement of trust funds; and that, in effect, it prefers certain claimants to the fund, who happen to present their claims first, instead of treating all claimants having equal rights alike. Counsel further argue that any misappropriation of the fund of a particular instalment of an assessment will render a municipality generally liable; that this may take the form of paying bonds or vouchers issued against another assessment, or of paying’ for items of work and labor not properly chargeable to the assessment, etc.; or that it may take the form, as here, of-over-paying interest to certain interest coupon holders, thereby depleting the fund available for the payment of the principal of the bonds issued against a particular instalment. And counsel contend that under the provisions contained in article IX of the Cities and Villages Act (J. & A. ¶ 1388 et seq.) and sections 1, 2, 3 and 4 of the Act of June 17, 1893, it was evidently contemplated by the legislature that each instalment of an assessment should constitute a trust fund for the retirement of the principal of the bonds issued against such instalment, and that the interest collected on each instalment should constitute a trust fund for the payment of the interest on the bonds issued against such instalment; in other words, that the instalment is pledged to the retirement of the principal of the bonds issued against the instalment and that the interest collected on the instalment is pledged to pay interest on those bonds.

It appears from the stipulated facts in the present record that the village received the full amount of the sixth and seventh instalments as confirmed, viz.: $2,813.68 for each instalment; that, as the bonds issued against each instalment amounted to. $2,800, the village received enough from each instalment to pay the principal of all of the bonds issued against the particular instalment; that the village received $305.11 as interest on the sixth instalment, which was all that was legally collectible from the property owners on said instalment; that the village paid out $890.78 as interest on all the bonds issued against said instalment; that the village received $216.24 as interest on the seventh instalment, which was all that was legally collectible from the property owners on said instalment; and that the village paid out $782.78 as interest on- all the bonds issued against said instalment. It thus appears that the village did not collect enough money in interest on each instalment to pay all the -■interest (that was actually paid out) on the bonds issued against each instalment, and that the deficiency in each case was caused thereby. And counsel for plaintiff contend that because of these facts it was the duty of the village to see to it that the principal of plaintiff’s bonds be paid in full out of the proper fund, as well as the principal of the other bonds payable out of the fund, and that it was the duty of the village to prorate the interest actually collected from the property owners among the coupon holders entitled thereto, and that because the village did not do this, but paid the bonds and interest on the principle “first come first served,” it is liable in this action to plaintiff, as the holder of the two bonds sued on, for the plaintiff’s proper proportionate share of the respective funds.

After careful consideration we have reached the ■conclusion that, under the facts disclosed, the trial court did not err in its finding and that the judgment appealed from should he affirmed.

In Village of Wilmette v. People, 214 Ill. 107, 112, (which was an action arising before the Act of June 17, 1893, was passed) it is said: “The interest which the holder of the vouchers was entitled to receive was that, and that only, which the statute required the property holder to pay in order to discharge the lien against his property.” And the rule seems to be firmly established that it is the duty of a trustee, in case the fund in his possession is insufficient to satisfy all the claimants having equal rights, to prorate the fund among them. In Colby v. Copy, 35 N. H. 434, 436, it is said: “But if he (the trustee) holds the different claims among which he is by law entitled to make the appropriation, not in his own right but as agent or trustee for others, he owes to them the duty to make a just and reasonable application of the money according to their respective equitable claims. Equality is equity' ordinarily between parties, who stand in similar relations. The general rule, therefore, clearly should be, that when an agent or trustee receives money generally, and he holds claims of different persons, to each of whom he is under the same obligations, he should apply the money ratably to the discharge of all the claims, and this obligation would be in no way affected by the circumstance that if the debts were all his own, he would have the undoubted right to apply the money to either of them at his election.” In Hewitt v. Hayes, 205 Mass. 356, 365, the court says: “If the total amount that can be held

by all the claimants who are entitled to a charge upon the fund thus determined exceeds the amount of the fund, then that amount is to be divided among them in proportion to the amounts of their respective charges.” In 27 Cye., page 1765, it is stated: “Several debts or claims, all equally secured by the same mortgage, are as a general rule entitled to share ratably in the proceeds of its foreclosure, whether they are all held by the mortgagee, or belong to as many different owners, * * *. And the rule is applied as between the holders of a series of bonds all secured by the mortgage, and is also applied for the benefit of holders of interest coupons detached from the bonds. ’ ’ In Dillon on Municipal Corporations, vol. 2 (5th Ed.) p. 1390, sec. 893, that author says: “Under special improvement bonds the municipality was held to be a statutory trustee for collection, bound to the exercise of due diligence to collect according to law, enforcing the same through municipal machinery as an agent of the owners of the bond and answerable for failure to perform this duty, or not paying over, or failing to pay the money collected. * * * None of the bondholders has any right of priority in the fund derived from the assessments. This is a trust fund pledged to the payment of all of the bonds, and the right 'of the holder of a part of the bonds is only to such portion of the fund realized as the sum of his bonds bears to the entire amount of the issue of bonds.” We are of the opinion that the acts of the village complained of amounted to a wrongful diversion or misappropriation by the village of plaintiff’s proportionate share of, funds collected from the sixth and seventh instalments of said assessment, and that the village is liable in this action for such proportionate share. In Donohue v. Village of La Grange, 183 Ill. App. 222, 226 (affirmed 263 Ill. 607), this court said: “If, however, the village wrongfully diverted any of the special fund, or used it to pay claims not legally chargeable against the fund, then the village is liable in assumpsit to. the extent of such wrongful use or payments, to the person to whom the moneys so used were rightfully due. Conway v. City of Chicago, 237 Ill. 128.”.

Counsel for the village further urges that it was impracticable and difficult in this case to prorate the interest among the interest coupon holders. We do not think so. The village treasurer is required to keep special assessment moneys in separate funds and to keep a separate account of each fund. Dolese v. Mc-Dougall, 78 Ill. App. 629, 644. If his books are properly kept he knows at the end of any year how much assessment he has received on an instalment, and how much interest thereon, and how much interest on other instalments. When interest coupons are presented he can easily ascertain whether he can pay them in full or whether he must prorate the interest fund. And we do not think that it is material that the village treasurer did not know who owned the outstanding bonds, or that the matter of the payment of any of the bonds was not brought to the attention of the board of trustees until after January 3, 1905. The village treasurer knew what bonds were unpaid and how much was on hand to the credit of each fund, and the village through its treasurer made the payments at its peril.

Counsel for the village says that if municipalities are required to apportion the fund on hand, in cases where deficiencies exist, instead of being required to levy a supplemental assessment, difficult questions will arise in the administering" of these funds. And counsel asks what would be the duty of the village treasurer in case certain lands were sold at tax sale for delinquent special assessments and certificates of sale issued to the village? This question does not arise on this record. And whether a supplemental assessment would lie is not now material. The question is, was there an improper distribution or diversion of certain funds of the original assessment as collected? Under the facts disclosed we think the village misapplied the trust funds of the two instalments in question by paying out more interest than was collected from the property owners, which it had no right to do to the prejudice of plaintiff, and to that extent it failed in its duty as trustee and should account to plaintiff in this action for his proportionate share of said funds.

While it is true that special assessment bonds are not negotiable and the bondholder has no greater rights than the contractor to whom they were issued (Northern Trust Co. v. Village of Wilmette, 220 Ill. 417; National Bank of La Crosse v. Petterson, 200 Ill. 215), we do not think that this should abrogate the equitable doctrine as to the duty of a trustee to prorate trust funds and the corresponding right of various beneficiaries standing in similar relations to be treated alike. If the contractor, or one purchasing from him, holds all the bonds, there is no necessity for the application of said doctrine of prorating, but it would be applicable if there was more than one contractor, and no good reason is perceived why it should not be applicable to several persons who have purchased bonds which were originally issued to one contractor.

By section 2 of the Act of July 1, 1893, the corporate authorities, issuing bonds such as were issued in this case, are given the privilege of redeeming the bonds at the time of any annual payment of interest upon twenty days’ notice by publication, and by section 4 of said act it is provided that any property owner may pay his assessment wholly or in part with the bonds issued under the act on account of such assessment, and that in making such payment such bonds shall be taken at their par value and interest accrued to the date of making the same. Counsel argues that from these provisions it would appear that it was not the theory of the law that there should be any prorating of the bonds or interest under any circumstances. We do not think that this follows. And it does not appear front this record that any of the bonds redeemed before maturity were redeemed on any annual interest payment dates or after a proper notice. Neither does dt appear that any property owner purchased any of the bonds and paid, or attempted to pay, his assessment wholly or in part therewith. While the statute (section 56, ch. 24, Hurd’s R. S. 1895, J. & A. ¶ 1482) gave to the property owner the option to pay any instalment or instalments which may have been assessed against his land, at any time before maturity and thereby stopping the further running of interest, and while it would appear that it was the intention that bonds issued against any instalment should be paid in full as soon as there was money available for that purpose, it nevertheless appears from the facts in this record that when plaintiff presented his 6th instalment $500 bond for payment a day or two after its maturity there was only the sum of $57.34 left in the fund for the payment of the principal of the bond, and when he presented his 7th instalment $500 bond for payment there was nothing -left in that fund. And it does not appear that this was occasioned through any fault of plaintiff. It is true that plaintiff was paid more interest on his bonds than his pro rata share, but counsel for plaintiff state that such excess interest so paid was taken into consideration by the court in reaching the finding made in this ease, and no complaint is made by counsel for the village as to amount of the finding.

Counsel for the village further argues that this judgment must be paid out of the general funds of the village and that the present board of trustees cannot lawfully use moneys raised by general taxation to pay any part of the special assessment bonds sued upon. We think it is a sufficient answer to say that such general funds would not be used to pay special assessment bonds as such but to pay a judgment based on a violation of the duty of the village as trustee. City of Chicago v. McNichols, 98 Ill. App. 447.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Hugo Oppenheim and Bernard Strauss, trading as Oppenheim & Strauss, Defendants in Error, v. J. H. Mower, Plaintiff in Error.
    Gen. No. 20,231.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon.. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914. and reversed and remanded in rehearing opinion filed June 4, 1915.
    Affirmed
    in opinion filed April 13, 1915,
    Statement of the Case.
    The action in this case was started in the court below to recover for goods, wares and merchandise sold and delivered by Oppenheim & Strauss, a corporation. After a hearing, the trial court, on February 2, 1914, entered a finding against the defendant and in favor of Oppenheim & Strauss, a corporation, and upon this finding a judgment was entered on the same day. On February 5th, three days after judgment had been entered, the attorney for the plaintiff, on due notice given the defendant, the plaintiff in error here, appeared and moved the court upon his unsworn statement alone to enter an order amending the prcecipe, statement of claim, summons, record and entry of. judgment by striking from all the papers and record the words, “a corporation,” as a description of the plaintiff below, and inserting instead the words “Hugo Oppenheim and Bernard Strauss, a Co-partnership, trading as Oppenheim & Strauss.” The court sustained the motion and ordered the amendments and the judgment to be corrected.
    Moses, Rosenthal & Kennedy, for plaintiff in error.
    S. R. Clute, for defendants in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Judgments, § 84 —when amendment not allowable. The amendment of a judgment three days after its entry so as to make it run in favor of “Hugo Oppenheim and Bernard Strauss, a Co-partnership, trading as Oppenheim & Strauss” instead of being in favor of “Oppenheim & Strauss, a corporation” is not an amendment for a defect or imperfection in matter of form and is, therefore, not authorized by the Statute of Amendments and Jeofails (J. & A. H 301).


text:
    Antanas Rimkus for use of Eva Zauninte, Appellee, v. A. Olszewski, trading as A. Olszewski Bank, Appellant.
    Glen. No. 20,619.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914. Rehearing granted and opinion filed June 4, 1915.
    Affirmed.
    Opinion filed May 11, 1915.
    Statement of the Case.
    Action by Antanas Bimkus, for the use of Eva Zauninte, plaintiff, against A. Olszewski, trading as A. Olszewski Bank, defendant, to recover the amount of a savings account deposited by plaintiff with defendant.
    The evidence showed that the account was assigned verbally by plaintiff to Eva Zauninte for a valuable consideration and that the passbook showing the account was delivered to. her by him.
    From a judgment for plaintiff entered on the verdict of the jury, defendant appeals.

      Abstract of the Decision.
    Banks and banking, § 200

      —when parol transfer sufficient to pass title to savings account. A parol transfer of a savings account, accompanied by delivery of the pass book and for a valuable consideration, of which the banker has notice, is sufficient to transfer title to the transferee.
    Anthony A. Slakis, for appellant; William Schwemm, of counsel.
    Charles C. Bodenstab, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    Florence A. Pangburn, Administratrix, Appellee, v. Knickerbocker Ice Company, Appellant.
    Gen. No. 20,900.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this Court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Action by Florence A. Pangburn, administratrix of the estate of John Franklin Pangburn, deceased, plaintiff, against Knickerbocker Ice Company, a corporation, and Levi & Company, defendants, to recover for the wrongful death of plaintiff’s intestate. The action was dismissed as to defendant Levi & Company and there was a verdict and judgment for plaintiff against defendant ice company, for $8,000, from which defendant appeals. .

      The facts were as follows: Levi & Company were in control of an ice house in which the defendant ice company delivered ice through a door in the east end of the building near the roof. The building had a flat roof and immediately over the door was a six by six beam eighteen feet long, which was securely fastened to the roof. The east end of this beam extended about two feet beyond the building. The beam did not extend out far enough from the building, and perhaps the chain from which the pulley block was suspended did not raise the pulley block high enough to permit the ice brought up by the tackle to go in at the door, and a plank four feet three and one-half inches long was nailed to the top of the beam, the east end of which extended east of the east end of the beam eighteen inches, leaving two feet nine and one-half inches of the plank resting on and nailed to the beam. On top of this plank a block of wood was placed and the chain from which the pulley block was suspended was passed around the block and plank a few inches east of the east ■end of the beam. The beam, plank and block on top of the plank had been in the position described at least eighteen years before the accident. During all this time the defendant provided the pulley block, rope, tongs and other appliances for raising the ice and attached the pulley block to the chain. The defendant ice company and it alone used the beam, plank, chain, pulley block and tackle for the purpose of raising ice. On the day of the accident, certain of the ice company’s employees, including the deceased, were engaged in unloading a car of ice which stood just east of the ice house, and hoisting ice by means of the tackle and putting it into the ice house through the door above mentioned. In this work a horse was used to hoist the ice. In doing so it was found that the ice could not be raised high enough to go in at the door without the pulley block striking against the plank from which it was suspended. About one-third of the carload of ice had been raised before the accident, and each time that ice was hoisted the pulley block struck against the beam with such force as to cause a jar, and the ice company’s superintendent decided that the trouble should be remedied and directed the deceased to go up on the roof and remedy it. In obedience to the order, deceased went on the roof and attempted to remedy the trouble by inserting another block of wood between the chain and the block of wood over which it passed, for the purpose of raising the chain and the pulley block suspended from it. The deceased inserted a block of wood under the chain and signaled the men below to hoist the ice: He then laid down, either on or alongside of the beam and plank with one hand resting on the plank and with his head and body extended about a foot from the building so that he could see as the ice was hoisted whether the trouble had been remedied. When a lot of ice had been hoisted to within, a few feet of the door, the strain on the projecting east end of the plank pulled that part of the plank which was nailed to the beam loose from the beam, and the plank, chain, pulley block, ice, etc., fell to the g*round, a distance of thirty-five or forty feet, carrying with them plaintiff’s intestate, and in the fall he was so injured that he died from the effect of his injuries.
    The plank did not break, but the strain on the outer end of the plank acting on the end of the beam to which the plank was nailed, as a fulcrum, pulled that part of the plank which was nailed to the beam loose from the beam and permitted the plank and appliances attached to it to fall to the ground. An examination of the plank and beam showed that the plank was rotten; that a part of the nails by which it was fastened to the beam were pulled through the plank and remained sticking in the beam, and other nails were pulled out of the beam and remained in the plank. The position of the deceased on or alongside of the plank did not tend to pull the plank loose from the beam, for his weight rested on that part of the plank which was nailed to the beam and not on that part of the plank which extended beyond the end of the beam.
    The jury returned two verdicts, one finding Levi & Company guilty and assessing plaintiff’s damages as against them at $3,000; the other finding the ice company guilty and assessing plaintiff’s damages against it at $5,000. The record showed that, “thereupon, the trial judge orally instructed the jury that there was a mistake in the rendering of the verdict, and stated orally and not in writing that if they found all the defendants guilty all must be included in one verdict, and they should then assess whatever damages they, the jury, found from the evidence and under the instructions of the court the plaintiff has sustained. The trial judge then directed the jury orally to return and bring in such a verdict, all of which was done in the absence of the defendant, etc. * * * Thereupon, the jury returned into the court and presented to the court the following verdict, signed by all the jurors: ‘We, the jury, find the defendants guilty and assess the plaintiff’s damages at the sum of -$8,000. ’ And as soon as the said proceedings came to the knowledge of the Knickerbocker Ice Company it then and there by its counsel excepted to said procedure, etc.” The court sustained the motion of Levi & Company for a new trial and the suit was then dismissed as to them, and denied the ice company’s motion for a new trial and entered judgment on the verdict against the ice company.
    McKinley & Hansen, and Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    James C. McShane, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 188*—when master liable for injury to servant acting in obedience to its order. Evidence in an action to recover for the death of an employee caused by a fall from a roof, examined and held to warrant a finding that the employee had gone on the roof in obedience to an order of the master to remedy a defect in a hoisting apparatus affixed to, the roof.

2. Master and servant, § 167*—tohen master chargeable with notice of defect in appliance. Evidence, in an action to recover for the death of an employee alleged to have been caused by the fall of' a defectively fastened hoisting appliance, examined and held to warrant a finding that the master knew or by the exercise of due care care could have learned that the appliance was so unsecurely fastened that it was liable to be pulled loose.

3. Master and servant, § 125*—what degree of care owed by master as to safety of appliances. A master, who employs in his work a hoisting appliance, consisting of a beam projecting from a roof and having attached to and projecting from it a plank, owes its employees the duty of exercising ordinary care to keep the beam and plank in a reasonably safe condition.

4. Master and servant, § 134*—■when master guilty of negligence in using defective appliance. In an action to recover for the death of an employee alleged to have been caused through the fall of part of a hoisting appliance, consisting of a beam and plank fastened together, the evidence examined and held to warrant a finding that the master was guilty of negligence in permitting the plank to be and remain unsecurely fastened to the beam.

5. Master and servant, § 698*—when risk not assumed by servant. In an action to recover for the death of an employee alleged to have been caused by the fall of a defective hoisting appliance, evidence examined and held not to. warrant a finding that the employee assumed the risk of the fall of the appliance.

6. Master and servant, § 699*—when servant not guilty of contributory negligence. In an action to recover for the death of an employee alleged to have been caused by the fall of a defective hoisting appliance which he was on the roof adjusting in obedience to the master’s order, evidence examined and held not to warrant a finding that the employee was guilty of contributory negligence.

7. Master and servant, § 161 -—when duty of inspecting appli-. anees on master and not on servant. The duty of inspecting a hoisting appliance which the master used in his business is on the master and not on the servant, and the latter has the right to assume, in the absence of anything tending to the contrary, that it is securely fastened when he goes on it to adjust it in obedience to the master’s orders.

8. Instructions, § 166*—when orgl instruction as to form of verdict not error. Where, in an action against two defendants to recover for the death of plaintiff’s intestate, the jury returns two verdicts, one finding one defendant guilty and assessing the damages againSt it at a certain sum, and the other finding the other defendant guilty and assessing the damages against it at a different sum, it is not error for the court to instruct the jury orally, and in the absence of defendants, that if they should find all the defendants guilty, all must be included in one verdict and they should then assess whatever damages they should find, from the evidence and under the instructions, the plaintiff had sustained and that they should return and bring in such a verdict.


text:
    In re Estate of Warren Springer, Deceased. Appeal of Marguerite Springer, Executrix, Appellant, v. Wallace L. DeWolf et al., Appellees.
    Gen. No. 20,930.
    Estoppel, § 51

      —when executrix estopped to contest order directing payment of claim. When, on a citation issued to an executrix to show cause why the executrix, who had filed an account showing a deficiency of personalty, should not sell the realty to pay debts, the executrix stated that realty was incumbered and that the holder of the incumbrance was willing to lend her on the realty an amount sufficient to pay all debts of the estate and that the realty was worth more than, the amount of the loan, and does effect the loan and pay off all of the debts with the exception of a judgment claim, allowed and ordered paid by the Probate Court, based on a judgment from which no appeal was taken and to reverse which no writ of error was sued out, she is estopped by her conduct to claim that the only resource of such claimant is by a proceeding to compel the sale of the realty to pay debts.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.

      Eugene M. Bumphrey, for appellant.
    George W. Wilbur and William T. Alden, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court affirming an order of the Probate Court which directed the appellant, Marguerite Springer, as executrix of the will of Warren Springer, deceased, to pay the claim of appellees which was allowed by the Probate Court July 24, 1912, for $25,190.97, as of Class 7, to be paid in due course of administration.

In obedience to an order of the Probate Court the executrix filed June 2, 1913, a just and true account of the estate of Warren Springer, exhibiting a deficiency of personal assets of $42,036.58, which was on the same day approved. One of the liabilities shown by such account was that of appellees for $25,190.97. William T. Alden, a creditor of the estate of Warren Springer, caused a citation to issue commanding the executrix to show cause why she did not sell real estate to pay debts. In answer to this citation the executrix stated that the real estate was incumbered for $211,000; that the holder of such incumbrance ’ was willing to lend her $300,000 on such real estate as security to be used in paying claims against the estate of Warren Springer; that the value of said real estate was much more than $300,000, and such loan would be sufficient to pay all debts due from deceased.

The executrix was the devisee of said real estate and the loan of $300,000 was obtained by her on the security of such real estate. Out of this sum she paid the debts due from deceased with the exception of that due appellees, and deposited $30,000 of the money so borrowed with the Chicago Title & Trust Company to secure it on a guaranty of title against liability to pay appellees their claim for $25,190.97 and interest, and applied to her own use nearly $30,000.

Appellees then filed in the Probate Court, pursuant to notice, their petition setting up the facts above stated, and praying that said Marguerite Springer be ordered without delay to pay them the amount of their judgment against said estate for $25,190.97 and interest. The answer of Marguerite Springer consists of an attack on the judgment and the statement that there is no sufficient showing that she has money to pay the claim.

The Probate Court entered an order that Marguerite Springer as executrix pay to appellees the amount of their claim as allowed with interest within twenty days. It was from this order that the appeal to the Circuit Court was taken. On the hearing in that court the order of the Probate Court was affirmed and the appellant here ordered to pay to the appellees here the amount of their claim as allowed by the Probate Court against the estate of Warren Springer within twenty days with interest from July 24, 1912, and from this order and judgment the present appeal was taken.

Appellant was excused from selling the real estate to pay debts, on her statement that if so excused she would secure a loan of $300,000, which would be sufficient to pay all the debts due from said estate. She did procure the loan, but instead of using all of the amount so borrowed to pay the debts of the estate, she applied nearly or quite $30,000 to her own use and now insists that the only recourse of appellees is to institute a proceeding to coerce her to sell real estate to pay debts.

We think that she is estopped by her conduct from asserting that the order of the Probate Court directing her to pay said claim was improperly entered and that the only recourse against her now is to institute another proceeding to coerce her to file a petition to sell real estate to pay debts. The claim which she has failed and refused to pay is based on the judgment of the Circuit Court of May 27, 1912, a judgment from which no appeal was taken and no writ of error prosecuted to reverse. That judgment was amended in form only and remains in full force. It is final and conclusive against the appellant on the question of the validity of the claim of appellees against the estate of Warren Springer. The amount of that judgment including interest from May 27 to July 24, 1912, was $25,190.97, and for that sum it was allowed as a claim against the estate, and the executrix in her just and true account included such claim as a liability of the estate. ■

The order of the Circuit Court entered October'29, 1913, affirming the order of the Probate Court appealed from was proper, as was the order and judgment that appellant pay to appellees the amount of their claim of $25,190.97 against the estate of Warren Springer, with interest, and the same is affirmed.

Affirmed.


text:
    Marguerite Springer, Executrix, Appellant, v. Wallace L. DeWolf et al., Appellees.
    Gen. No. 20,928.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honore, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Claim by Wallace L. DeWolf, Mary F. Kellogg and Lucy E. Bell, against the estate of Warren Springer, deceased, and Marguerite Springer, as executrix of the will of said Warren Springer, defendants.

      Abstract of the Decision.
    Executors and administrators, § 227

      —when amendment of proof of claim properly allowed. Following the decision in DeWolf v. Springer, 190 Ill. App. 116, held that the amendment of the proof of claim involved was properly allowed.
    May 27,1912, a judgment was entered in the Circuit Court in. favor of plaintiffs against defendants. After the expiration of the judgment term the judgment was amended by striking out the words, “Estate of Warren Springer, deceased,” and adding, “as a claim.of the seventh class, to be paid in due course of administration. ’ ’ From this order an appeal was taken and the order was affirmed by Branch B of this Court. DeWolf v. Springer, 190 Ill. App. 116. Before the amendment was made, a copy of the judgment was filed in the Probate Court as a proof of the claim of the plaintiffs in the judgment against the estate of Warren Springer. After the judgment was amended the claimants were given leave to file an amendment to their proof of claim as of the date of filing such claim. From this order an appeal was taken by the executrix of the will of Warren Springer to the Circuit Court, where the order appealed from was “confirmed” and leave given to file as an amendment to their proof of claim filed in the Probate Court, a copy of the order amending the judgment. From this order and judgment, the executrix appeals. See Springer v. DeWolf, post, p. 60.
    Eugene M. Bumphrey, for appellant.
    George W. Wilbur and William T. Alden, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Marguerite Springer, Executrix, Appellant, v. Wallace L. DeWolf et al., Appellees.
    Gen. No. 20,929.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honore, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Claim by Wallace L. DeWolf, Mary F. Kellogg and Lucy E. Bell, against estate of Warren Springer, deceased, and Marguerite Springer, as executrix of the will of said Warren Springer, defendants.
    Claimants recovered a judgment in the Circuit Court May 27, 1912, against the estate of Warren Springer, deceased, and Marguerite Springer, his executrix, for $25,000. A copy of the judgment order was filed in the Probate Court as a claim against the estate of Warren Springer and allowed July 24, 1912, for $25,190.97 as of class seven, to be paid in due course of administration. After the expiration of the judgment term the judgment was amended by striking out the words “Estate of Warren Springer, deceased,” and adding the words, “as a claim of the seventh class, to be paid in due course of administration.” Before the amendment was made, a copy of the judgment ofi the Circuit Court entered May 27, 1912, was filed in the Probate Court as a proof of the claim of the plaintiffs in the judgment against the estate of Warren Springer. After the judgment was amended, the claimants, by leave of the Probate Court, filed a copy of the amended judgment order as an amendment to their proof of claim as of the date of the filing of their claim.
    Marguerite Springer as executrix of the will of Warren Springer, deceased, filed in the Probate Court her petition praying that the order and judgment of that court entered July 24, 1912, allowing the claim of appellees as claimants against the estate of Warren Springer as of class seven for $25,190.97 he vacated and set aside. The prayer of the petition was denied and the petition dismissed, and the executrix prayed and was allowed an appeal to the Circuit Court. In that court the order of the Prohate Court appealed from was “confirmed,” the prayer of the petition denied and the petition dismissed. This appeal is prosecuted from the order of the Circuit Court. See Springer v. DeWolf, ante, p. 58.
    Abstract of the Decision.
    1. Judgment, § 252

      —when amendment proper. The court may, after the expiration of the judgment term, permit a judgment, recovered against the estate of a decedent and his executrix, to he amended by striking out the words, “Estate of * * *, deceased,” and adding the words, “as a claim of the seventh class, to be paid in due course • of administration,” the amendment being one of form only.
    2. Executors and administbatobs, § 227*—when amendment of proof of claim, properly allowed. Where the judgment on which a proof of claim is based is amended after the proof is filed, it is proper to allow the amendment of the proof of claim by filing a copy of the judgment order as amended.
    Eugene M. Bumphrey, for appellant.
    George W. Wilbur and William T. Alden, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.