text:
    Coal Run Coal Company v. Lester H. Strawn, Adm’r etc.
    Carrier and shipper—Shipper owning track.—Appellant operating a coal mine, for convenience in shipping laid and kept in repair a railroad track from its shaft to the railroad, a distance of three quarters of a mile. Appellant.did not own or lease any locomotive-engine or rolling stock, but the product of appellant was carried by said railroad company in its own trains, operated by its own employes over this switch and its own and connecting tracks of other railroad companies to appellant’s customers or consignees. Appellee’s intestate was fatally injured on this switch track by a , train of said railroad. Appellee brought suit against appellant for damages. Held, that upon the evidence the relation of appellant to the railroad company was not that of master to servant but of shipper to carrier, and appellant is not liable, since it fairly appears that as to the manner of opera ing and managing the train, in all its details, the¡railroad company acted independently, with its own machinery and by its own servants and under its own charter.

      Appeal from the Circuit Court of La Salle, county; the lion. George W. Stipe, Judge, presiding.
    Opinion filed August 20, 1884.
    Mr. E. S. Leland and Messrs. Gilbert & Eckels, for appellant;
    that if A employ B to do any kind of work, B to select, control and discharge the servants engaged in performing the work, such servants not being subject to the orders of A in respect to the details of the work, B is an independent contractor and not A’s servant, and B’s servants are not A’s servants, cited Scammon v. Chicago, 25 Ill. 424; Hale v. Johnson, 80 Ill. 185; West v. St. L., etc., R. R. Co., 63 Ill. 545; Eaton v. European, etc., Ry. Co., 8 Am. R. 430; Joliet v. Harwood, 86 Ill. 110; Milligan v. Wedge, 12 A. & E. 737; Schuler v. Hudson R. R. Co. 38 Barb. (N. Y.) 653; Boswell v. Laird, 8 Cal. 469; 1 Addison on Torts, 46; 2 Greenleaf on Ev. § 232b; Cooley on Torts, 546; Wood on Master and Servant, § 312.
    Messrs. Bull & Buger, for appellee;-
    that even in the case of an independent contractor, if the employer keeps control of the work, he is liable, cited 2 Hilliard on Torts, 447.
    The appellant was liable even if the cars and engine that caused Muhlieh’s death were under the entire and independent_control of the railroad company: I. C. R. R. Co. v. Finnigan, 21 Ill. 646; C., St. P. & F. du L. R. R. Co. v. McCarthy, 20 Ill. 388; Hinde v. W. Nav. Co., 15 Ill. 72; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 107; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370; West v. St. L. V. & T. H. R. R. Co., 63 Ill. 545; P. & R. I. R. R. Co. v. Lane, 83 Ill. 449.
   Pleasants, P. J.

Appellant, operating a coal mine near Streator, for convenience in shipping laid and kept in repair a railroad track from its shaft to the line of the C. P. & S. W. R. R. Co., a distance of three quarters of a mile or thereabouts. This track was extended to or connected with other shafts of other mines in the immediate neighborhood; but by whom or upon what arrangement for use, does not appear. Appellant neither owned nor leased any locomotive-engine or rolling stock. Its product was carried by said railway company in its own trains, operated by its own employes, over this switch and its own and connecting tracks of other railroad companies, to appellant’s customers or consignees. The railroad company in like manner served other shafts in the neighborhood to which this switch was extended or with which it was connected.

On the 15th of March, 1880, appellee’s intestate, Charles Muhlich, who was then in the employ of appellant, was fatally injured on this switch track by a train of said railroad company consisting of an engine and three empty coal cars. It had' been backed up near the shaft, on the lump track, where it had stood a few minutes waiting, for a car that was on the scales to be let down out of its way, to back up further. Deceased was forty or fifty feet west from the rear car, engaged in removing a fish plate, with his face to the west. When the car on the scale's had been let down, the signal to back up was given and the train run upon him.

The railroad company was then in the hands of a receiver appointed by the IT. S. Circuit Court, and this suit was brought against the coal company to recover damages for the alleged injury.

There are two counts in the declaration. The first avem that the deceased was at work for defendant repairing the track of a railroad owned by and under the control and management of defendant, and that while at work, and using due care, the defendant caused and permitted an engine and train of cal’s to be run and operated in such a negligent and careless manner that the same ran upon and killed him.

The second is in substance the same, with the further averments that the railroad connected the C. P. & S. W. R. R. with defendant’s coal-shaft, that the negligence Was gross, reckless and in total disregard of human life, and that the train Was not run, operated or managed by a fellow-servant or fellotv-servants of the deceased,

Issue Was taken by a plea of not guilty and the trial resulted in a Verdict for plaintiff for $3,500 damages. Motions by defendant, at the proper times, to exclude all the evidence for the plaintiff and for a new trial were overruled and judgment entered upon the verdict; from which judgment defendant took this appeal.

The evidence preserved in the bill of exceptions relates almost wholly to the circumstances immediately preceding and attending the unfortunate occurrence. As to the facts bearing upon the question of care or negligence on the part of the deceased and of the persons operating the train, respectively, it is conflicting; and we deem it unnecessary to discuss either the evidence or the instructions relating to that question, because the case must in our judgment be finally disposed of by a proper determination of the one that lies farther back.

It being conceded that the injttry was committed by persons in the employ of, and while operating a train belonging to the C. P. & S. W. R. R. Co., an incorporated common carrier by railroad, the plaintiff was bound, in order to establish the liability of defendant therefor, to show that it sustained to said railroad company, at that time, the relation of master.

This was the theory of the declaration. It did not claim that the train was being run under the charter of the defendant and could not have been lawfully run otherwise—-the ground of liability recognized in West v. The St. L., V. & T. H. R. R. Co., 63 Ill. 525; nor that defendant employed the railroad company to do the work and that it was necessarily dangerous, however carefully and skillfully done—the ground recognized in the City of Joliet v. Harwood, 86 Ill. 110. If it did it would be entirely unsupported by the evidence. The railroad company was doing its own proper work under its own charter, and the danger was not in the nature of that work, but altogether in the manner of doing it. But it avers that the defendant owning and managing the road caused the train to be run in a manner so careless and negligent as to kill the deceased. This can be sustained only by proof that what is charged was done by servants of the defendant.

Ho evidence of the terms of the contract between the Coal Company and the Railroad Company was introduced, and that of other facts showing their relations was very meager.

Miles Cavanaugh says: This railroad was put up by the Coal Run Coal Company for their own private use.

Michael Muhlich, a son of the deceased, says: I know about the branch railroad leading down to the shaft. Should judge the Coal Run Coal Company operates that road, judging from the nature of the time table. I have been acquainted with this road about a year and a half. * * * There are branches leading to other shafts. The Coal linn Coal Company controls the running of traffic over the road.

James Brady says: I' was in the employ of the O. P. & S. W. R. R. Co. as switchman. Downs had charge of the work as switchman or yardmaster. .■ Che engineer was working, I suppose, for. the C. P. & S. W. R. R. Co., and the fireman as well. The cars belonged to that company and were operated by that company.

Michael Murray says: I was working at the Pea-Rut shaft when he (Muhlich) was killed. I was running empty flats downTunder the shoot to be loaded, and when they were loaded I took them out. I always threw the switches and run the flats down myself. That was what I was there for.

James Downs testifies: I was then yardmaster for the C. P. & S. W. R. R. Co. My duties were to distribute empty coal cars around to the various coal shafts and pull out the loaded ones, and do such necessary work as the coal shafts demanded when the coal went over our road.

(Question by a juror.) You worked for.the C. P. & S. W. R. R. Co., but yon still done all the work which was ordered by the Coal Run Co.? (Answer.) We had to take empty cars down to the other shafts there and pull out what went over our road.

(Question by same juror.) If you were ordered to do so you worked for them? (Answer.) I don’t know as there ivas any ordering about it or anything of that kind. At that time the coal shaft shipped all their coal by the C. P. & S. W. R. R., and the Pekin road done their work; put on empties whenever called for and pulled out the dumps. In the morning the Coal Run Co. used to send word for us to “ bring down so many empties,” and we would bring them down to the shaft and take them out when loaded.

Upon the foregoing evidence, which is all we find in the record that bears upon it, the question is whether the railroad company was the servant of the Coal Run Company or an independent contractor.

In Arasmith v. Temple, 11 Bradwell, pp. 47-51 inclusive, the difference between these characters and the indicia ot' each, as we understand them from the authorities, were so fully stated that it is unnecessary here to repeat them. We find nothing opposed to them in the briefs of counsel in this case, but on behalf of appellee it is insisted that appellant, “ although it did not own the locomotive or cars, controlled the running thereof, directed when and where the several cars upon its railroad should be run or switched, and in all ways controlled the engineer, brakemen, switchmen and cars, as absolutely and completely as any railroad company runs its own trains and controls its own hands.” This broad claim ousts the railroad company entirely, and brings the train hands into direct relation with appellant as its servants. If just, it settles the question beyond a doubt. But no attempt is made to support it by argument. It is simply asserted as established by two short sentences above quoted from the testimony of Michael Mulilich and the fact, proved and conceded, that appellant owned the switch track. We think these altogether insufficient.

The witness, when his father was killed, was living in Kansas, and does not pretend to know or to have had any means of “ judging’bvho at that time operated the road. His acquaintance with the road itself did not begin until more than a year afterward. His opinion on that subject, at any time, “judging from the nature of the time table,” can hardly be treated as evidence. If the time table was of such a nature as to be a means of judgment, it should have been presented to the jury for theirs, without his opinion; but it was not so presented. If there was one, every presumption from the known circumstances would be that it was fixed by agreement, general or special, with the railroad company, acting as independently as the coal company, and not without regard to its will. And if not so fixed, it would still he no evidence that the railroad company did not control as to the manner of running and operating its trains, Avhich is the real point of inquiry. So of his opinion that “ the coal company controls the running of traffic over the road.” The meaning of this is by no means clear. Having been laid down for its private convenience and being in no sense a public railroad (Koelle v. Kuecht, 99 Ill. 403-4), the coal company, unless restrained by express contract, could undoubtedly take up the rails, refuse permission to the railroad company or any other party to carry anything over it, or anything but its own product, or only so much of anything, and on such terms, as it should see fit. In that sense it controlled the running of traffic over it. But having given permission to this railroad company to carry over it so far and for such purposes as it did, Avhether by contract or mere license, neither this witness nor any other states a fact tending to prove that appellant had in Iuav or pretended to exercise any control o\rer or interference with the manner of running and operating its trains. It handled only coal cars and them only so far as it was necessary in order to load them. On the other hand it fairly appears that as to the-manner of operating and managing the train, in all its details-, in getting these cars to and from the place where they Avere loaded, the railroad company acted independently, Avitli its own machinery and by its own servants. All of the train hands were in its employ. Downs, its yardmaster, gave the signal to move the train that ran upon the deceased and its Engineer obeyed it, both acting for said company in the performance of its proper, independent, contract work, Avhich Avas to carry the coal of the appellant.

Upon the facts, then, we find the relation of appellant to the railroad company to have been that of shipper to carrier. If there is a single circumstance which for a moment might seem to distinguish it, as shown in this case, from its purest form, it is that the shipper provided a portion of the carrier’s facilities for the performance of its proper work, and a very important portion, namely, a railroad track for the short distance mentioned. This circumstance, however, does not so distinguish it, even in appearance; for the shipper surrendered this track to the carrier for the time and purpose required, and the latter then had it as fully and exclusively as if it had been its own. We find no evidence that appellant controlled or directed it about its work in any particular, further than all shippers of such freight do and must direct their carriers by rail. Such carriers are not servants of .the shipper, but independent contractors, and for injuries resulting from their negligence or that of their servants, the shipper is not liable.

In divers rulings, upon the motions of defendant above referred to and in giving and refusing and modifying instructions not necessary to be here specified, the circuit court proceeded upon views of the law or of its application to the facts which were notin harmony with those herein set forth, and as we think, therein erred, for which the judgment is reversed, and the cause remanded for further proceedings in conformity herewith.

Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    Archibald C. Parks v. Theophile Laroche.
    1. Contract sob a good title—What party may be compelled to accept.—Where a party does not contract for a title of record but simr ply for a good title, he may he compelled to accept one,not of record if such title is good to a moral certainty, which is tantamount to being free from reasonable doubt. (
    2. Title by limitation.—A title by limitation is capable of meeting the above requirement, for though such title may be, in general, “ doubtful and uncertain,” even in a high degree, yet in a given case, where the prior record title is shown to have been in one against whom the statute under which adverse possession becomes available has ran, it is in law and fact as firm as a deed can make it. The court is of opinion that the title by limitation in this case is good to a moral Certainty, and that appellee must perform his contract.

      3. Lapse op time.—The lapse of nine years between the date of a judgment and the sale on execution upon such judgment, will not impeach it.
    4. Time, how computed.—In a bill for specific performance by the vendor where the title is one by limitation, the time should be computed from the time the statute begins to run to the date of the decree.
    Appeal from the Circuit Court of Iroquois county; the Hon.. Franklin Blades, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Kay & Euans,for appellant;
    that amoral certainty that the title is good is all that is required if it is not possible in the nature of things that there should be a mathematical certainty of a good title, cited Lyddal v. Weston, 2 Atk. 20; Strober v. Dutton, 6 Phil. (Pa.) 185; Dobbs v. Norcross, 24 N. J. Eq. 327.
    As to the distinction between a good title of record and a good title: Page v. Greeley, 75 Ill. 400.
    The vendor is entitled to the benefit of all the time, from the time the statute begins to run to the date of the decree: Hepburn v. Auld, 5 Cranch, 262; Hepburn v. Dunlop, 1 Wheat. 231; Seymour v. Delaney, 3 Cowen, 445; Langford v. Pitt, 2 P. Wins. 629.
    Messrs. Doyle, Morris & Pierson, for appellee;
    that a purchaser who has bargained for a good title shall not he compelled to take one which is subject to suspicion, cited Brown v. Cannon, 5 Gilm. 182; Morgan v. Smith, 11 Ill. 199; Kimball v. Tooke, 70 Ill. 560; Snyder v. Spaulding, 57 Ill. 480; Bishop v. Newton, 20 Ill. 179.
   Pleasants, P. J.

In January, 1876, Jesse H. Thompson gave to appellee a bond to convey lots 4 and 8 in block 12 of the town of Milford, “by good and sufficient deed * * * clear of all incumbrances whatever,” upon his payment of two small notes at maturity, with interest according to their tenor, and all the taxes in the meantime to be levied on said premises. Appellee went into possession under this contract, made some improvements, paid the note first maturing and a small amount on the other, which was for $200 and due January 1, 1878. In January, 1879, Thompson tendered him a proper deed and presented the note, but he refused to accept or pay. In July, 1880, Thompson assigned the note and conveyed the lots by warranty deed to appellant, who on the 23d of October following tendered a like deed of himself and wife to appellee, together with the deed from Thompson, and demanded payment; and appellee again refusing, on the same day filed the bill herein, praying that he be required to pay the amount remaining due on said note bv a short day, or in default thereof that his interest in the premises be sold under the direction of the court to pay the same.

The defense set up was that the title was not clear and such as was required by the bond; which the circuit court sustained upon the proofs, and made a decree dismissing the bill.

It appears that by a patent from the government to William Pickerel, issued October 10, 1883, and conveyances following, the title to these lots became vested in 1838 in Jacob Wagner; that on November 13, 1855, they were sold on execution upon a judgment against him, of June 4, 1846, in favor of the administrator of the estate of said patentee, and that on February 13, 1856, upon said sale, a deed was made to George B. Joiner, the purchaser, who with his wife executed a deed of February 11, 1856, purporting to convey them to James Love-lass and David McDonald; that McDonald and wife executed a warranty deed, of March 17, 1858, of the entire interest, to Daniel Pruitt; and that from him, through seven mesne conveyances, successively and regnIarly executed, and each with full covenants of warranty, this interest was in terms passed to said Jesse II. Thompson on the 23d of November, 1874.

The plat of the town of Milford, made for and acknowledged by said patentee, was filed for record October 10,1836. Lots 4 and 8 compose the south tier in block 12, extending across it east and west, from street to street. From the earliest recollection of witnesses, going back to a time anterior to the sheriffs sale to Joiner, they have been inclosed together, improved by a dwelling house, stable and garden thereon, and occupied continuously until now—during the last eight years by appellee, who is still in possession. McDonald occupied them in 1S5G and exclusively until he conveyed to Pruitt. It does not appear that the latter, who conveyed in December, 1859, ever occupied them in person; but it is shown that his grantee did, a3 did also three of the other five successive deed holders intervening between him and Thompson, and that at different times not fixed by the proof they were occupied by renters.

James Lovelass was of age when McDonald conveyed. He lived near Milford for some years, and then moved back to Indiana, where he died in the summer of 1876, leaving a widow and minor children.

Since appellee did not contract for a title of record, he may be required to accept one not of record, if good ” enough. Page v. Greeley, 75 111.400. How good that must be can hardly be stated more favorably to the purchaser than was done in Brown v. Cannon, 5 Gilm. 180-4, where the principal authorities on that side are referred to and the rule announced that it must be free from reasonable doubt. A title by limitation, however, is there recognized as capable of meeting this requirement; for though such may be in general doubtful and uncertain,” even in'a high degree, yet in a given case, where the prior record title is shown to have been in one against whom the statute under which adverse possession becomes available lia.s run, it is in law and fact as firm as a deed could make it. Seymour v. DeLancey, Hopkins’ Ch. E. (N. Y.) 486; Strober v. Dutton, 6 Phila. (Pa.) 185. A title that is good to a moral certainty—which is tantamount to being free from any reasonable doubt—is all that can in such case be required. In Lyddall v. Weston, 2 Atk. 20, Lord Ch. Hardwicke said: “This is one of the cases of willingness and unwillingness in a purchaser. It is the business of this court to carry such agreements into execution, and it must govern itself by a moral certainty, for it is impossible in the nature of things there should be a mathematical certainty of a good title. * * "x" There are often suggestions of old entails, and often doubts what issue persons have left, whether more or fewer, and yet these were never allowed to be objections of that force as to overturn a title to an estate.”

Are not those that are suggested against the title of appellant here of just this character? It is not contended that anj’body can by any legal possibility successfully oppose it, unless it may be some one claiming under Jacob Wagner or James Lovelass. No doubt that Wagner, on the 13th of November, 1855, had a perfect record title to both these lots, is intimated. It may be that at the time of his death he was in possession of them; but he was not then seized. His title had been divested, subject only to the right of redemption, by judicial sale on that day. One witness testified that according to his recollection the possession of McDonald, in 1856, immediately succeeded that of the family of Wagner, whose ■widow continued to live on the premises “quite a little time after his death,” the date of which is not shown; and he is not contradicted as to the fact by any other. Upon this statement it is said that the sheriff’s sale may have been made , after his death—a possibility, indeed, but the evidence referred to has no tendency to prove it as a fact, and it is too improbable to be the basis of a reasonable doubt. Every presumption is in favor of the regularity of the sheriff’s proceedings on the sale, and the inference to be unhesitatingly drawn is that the widow, having no prospect of redeeming, yielded possession to the grantee of the purchaser as soon as she could make other arrangements for a residence, without contest or protest. . The judgment, being in favor of the patentee, was not improbably for the purchase money, so that she had no claim of dower. The lapse of so many years between the date of the judgment and the sale will not impeach it. Lampsett v. Whitney, 2 Scam. 441. The heirs of Wagner, then— and who they were, and whether lineal or collateral, does not appear—having never redeemed nor offered to redeem, were never seized. McDonald being in possession, and claiming title under proceedings that divested their ancestor, and they having no intervening title, the statute began to run as against the ancestor. It appears from the record that the sheriff’s deed to the purchaser was dated the 13th of February, 1856, from which arises the suspicion of a mistake therein of 1856 for 1857, as might easily occur so near the beginning of the new year, which would make it just fifteen months after the sale and strictly in conformity with the direction of the statute. But if not, no one having a right has complained that it was executed prematurely, and there being no pretense of a redemption or of an offer to redeem, by anybody, the possession by McDonald under that deed, based on a sale that divested Wagner, would be directly adverse to his title and not to that of his heirs. They are therefore barred, as he would be, if living, even though the sheriff’s deed had been void. But it is not claimed that it was void. The doubt insisted on is rather based upon the title of James Lovelass, as possibly outstanding in his heirs. Nov is it denied that the deed of the entire premises by McDonald, his co-tenant, in March, 1858, and the possession following, was a disseisin of Lovelass. Goewey v. Urig, 18 Ill. 242; Lavalle v. Strobel, 89 Id. 384-5. So that the statute would begin to run against him from that time, and would have barred his heirs also when this bill was filed if the adverse possession had been continuous, notwithstanding his death in 1876, because it contained no clause or qualification saving their rights. The People v. White, 11 Ill. 350, and eases there cited; Peoria County v. Gordon, 82 Id. 435. But it is claimed that the evidence does not show such continuous adverse possession beyond a reasonable doubt. We think differently, from the facts above stated, and which are not contradicted. The lots were inclosed and built upon for residence in Wagner’s time. Several witnesses so testily, and that they have been actually occupied “continuously ” ever since. Nearly all of the deed holders are shown to have lived on them during the period of their respective claims under their deeds; and at different times not definitely fixed, but which must have been intervals between such possessions, it was occupied by tenants who rented. The time should be computed from the date of the disseisin to that of the decree, which was twenty-six years. Hepburn v. Auld, 5 Cranch, 277; Hepburn and Dundas v. Dunlap and Co., 1 Wheat. 179.

We therefore regard the title of appellant as free from reasonable doubt—good, to a moral certainty. He was consequently entitled to the relief asked, and it was error to deny it. The decree is reversed and the cause remanded for further proceedings in conformity herewith.

Reversed and remanded.


text:
    John R. Bassett, Adm’r pro tem., v. Emily J. Noble.
    1. Where administrator has a claim—Appeal by administrator pro tem.—Where an adminisirator pro tem., having been appointed by the county court to appear and defend a ciaim filed against the estate by (he administrator (R. S. Ch. 3, § 78), took an appeal to the circuit court. Held, that the last sentence of section 78 of the statute does not by implication leave the estate, when defeated in the lower court, without remedy by appeal. Section 68 giving an appeal in all cases to either party, is not thus limited by section 78.
    2. Living in family—Suit for wages—Declarations.—Where appellee, who had lived for many years in the family of her uncle, was suing his estate for wages and money alleged to have been loaned, and the declarations relied on as a new promise to take the case out of the Statute of Limitations, did not amount to a recognition of a legal liability or indebtedness on any account, but were expressions of a desire from a sense of gratitude to reward the claimant, and related to her work alone and not to money loaned, and were not made to her or her agents legally or equitably interested in the claim. Held, that such declarations would be insufficient to revive an indebtedness, if any existed, barred by the statute.
    3. Interest.—Where there was no evidence of an agreement to pay interest, and the principal due, if any, was not fixed, certain or agreed upon, hut was upon a running and unsettled account, interest could not he recovered.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Bassett & Wharton, for appellant;
    that the entries would be admissible to show payment of a preceding debt, but not that it ivas a loan of money, or that a debt was created by it from the person who made the entry or in whose book it was made, cited Adams v. Taylor, 21 Ill. 102; 2 Greenleaf on Ev. § 112; 4 Phillips on Ev. 121; McKinstey v. Pearsoll, 3 Johnson, 319.
    Appellee is estopped from claiming wages unless an express contract is proved: Fetterhoff v. Paul, 73 Id. 173; Morton v. Rainey, 82 Ill. 215; Miller v. Miller, 16 Ill. 296; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421; Griffin v. Bank, 74 Ill. 259; Meyer v. Temme, 72 Ill. 574; Brush v. Blanchard, 18 Ill. 46.
    As to allowance of interest: Sammis v. Clark, 13 Ill. 544; City of Chicago v. Allcock, 86 Ill. 384; Devine v. Edwards, 101 Ill. 142; West Chicago Alcohol Works v. Sheer, 104 Ill. 586; Flake v. Carson, 33 Ill. 526; Myers v. Walker, 24 Ill. 133.
    Mr. Louis D. Holmes, for appellee;
    as to the right of appeal, cited R. S. 1884, Ch. 3, § 72; Hosing v. Att’y General, 104 Ill. 295; Schooner Constitution v. Woodworth, 1 Scam. 511; Lewis v. Shear, 93 Ill. 123.
    Facts and circumstances may be shown that will imply a promise to pay and an express contract need not be shown: Warren v. Warren, 105 Ill. 567; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421.
   Pleasants, P. J.

Appellee, in 1848, at the age of four years, having lost her mother, was bound, with a younger brother, to her grandfather, William Crapnell, who died in 1859. Before his death the farm on which he lived had become the property of his son, appellant’s intestate, by whom it was then being carried on and with whom his widowed mother, an unmarried sister, appellee’s brother (afterward killed in the war) and appellee continued to reside. His mother died in 1871. His sister married in 1877, but remained with him except for a year or less during which she was in Texas. In 1870 he took to raise a bound girl, then of the age of twelve years, who lived with him until 1876, after which the family or household consisted of himself, his sister and the appellee, until his death. Besides the usual farming operations he cultivated for the last five or six years a truck garden. Appellee, from the time she was physically able, was always industrious, faithful and helpful, doing housework mainly, together with her aunt and the other girl mentioned, but frequently assisting him in the garden and on two or three occasions in unloading and shucking corn. That he highly appreciated her services and character was shown by invariable kindness in his conduct and expressions. He sent her away to school at Aledo before she became of age and kept her there afterward, providing for her tuition, board and other expenses, and later at the Sister’s Academy in Davenport, Iowa. He took her with him to church and on his visits about the neighborhood, and allowed her to buy for herself at the stores in town what she saw fit, on his credit, without restriction. Every witness on both sides testified that she was treated in all respects just as a member of the family.

She had $50 from her grandfather’s estate in March, 1866, and small sums occasionally from her grandmother, the highest shown being one dollar. She also did some sewing for other persons from time to time for which she received pay, and some premiums at fairs. This is all that appears in relation to her pecuniary means or resources.

Meithershe nor her uncle ever kept an account with the other. There was never any express contract nor anything whatever said between them about wages or other compensation for her services, although he undoubtedly intended as he repeatedly stated to provide for her liberally with land, as a reward for her faithfulness, which she well deserved. But without executing it, in December, 1881, he died, a bachelor, intestate.

Appellee became his administratrix, but having a demand of her own against the estate, which she filed Mov. 25, 1882, the county court appointed appellant to appear and defend for it. On the trial there she was allowed $3,350, and in the circuit court on appeal, $2,500, of which $500 was remitted, and thereupon the motion for a new trial was overruled and judgment entered for the claimant for $2,000. Bassett then appealed to this court.

Appellee has assigned for cross-errors that the circuit court overruled her motion to dismiss the appeal from the county court, and allowed Bassett to file an amended appeal bond. It is contended that his functions ended with the trial in the county court, and that the circuit court acquired no jurisdiction of the case so as to allow an amended bond to be filedj or take any other action therein but to dismiss the appeal.

For this proposition counsel relies on the provision of the statute under which Bassett was appointed, being § 72 of Oh. 3 of the R. S., and as follows:

“ When an executor or administrator has a demand against his testator or intestate’s estate, he shall file his demand as other persons; and the court shall appoint some discreet per_ son to appear jand defend for the estate; and upon the hearing the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appear just. Should any executor or administrator appeal in such case, the court shall appoint some person to defend as aforesaid.”

The argument is, that the right to appeal, for a trial de novo, is derived wholly from the statute and can be exercised only in the cases and manner and to the extent thereby allowed, and that the power of appointment to appear and defend for the estate on appeal, being given only where the executor or administrator takes the appeal, it does not exist where he does not take it. And therefore, is the anomalous and startling conclusion, though the claimant may appeal the estate may not.

From this view we must dissent. The right of appeal is not derived by either party from this section. It recognizes but does not confer it. That right is given by the 68th section, which declares that “ in all cases of the allowance or rejection of claims by the county court, as provided in this act, either party may take an appeal from the decision rendered to the circuit court of the same county,” etc. This was such a case. The only peculiarity about it was that the general representative of the estate was the party adverse to it. It was necessary, therefore, if a defense was to be allowed, to provide somebody to appear for it specially quoad hoc. Section 78 meets this necessity and no more. John R. Bassett was duly appointed for that purpose. lie was not thereby made administrator, but the attorney lor the estate m this case; and although the authority conferred by the appointment may not have extended beyond the case in that court, it embraced all that an attorney duly appointed for any other party eouid legitimately do in such case in that court, if successful on the trial there, no further action on his part would be recpiired. His functions under the appointment would be ended, and the fact that he tried the cause below would not authorize him to appear on appeal in another court. Covill v. Phy, 24 Ill. 37. Hence, the necessity of the provision for a new appointment where the claimant appeals. But if unsuccessful, and he thought it his duty, then by further and legitimate action in that court, to wit, by filing a propei bond and getting it approved, he would acquire a status in the circuit court on appeal, by operation of the law and the express sanction of the county court. Hence there was no necessity for a provision for a new appointment in that case. In our opinion, then, the last sentence in section 78 does not, by implication, leave the estate, when deieated in the lower court, without remedy by appeal, and thus limit the operation of the GStli, which in the clearest terms gives it in all cases, to either party. The cross-errors are not well assigned.

Appellee’s account of her claim as filed embraces:

First, money loaned, in eight smns aggregating $302.40, the latest of which, with one exception, is charged as of Juiy 6, 1871. Of the one excepted, which is of August, 1881, amounting to $30, there.was no evidence offered. The same is true of another item of $40. Of the others, excepting the $50 from her grandfather’s estate in 18G6, the receipt of which it was said he verbally admitted, the only evidence consisted of entries in his “ Cash account,” in pocket diaries of 1860 and 1870, in the following form: “ Of Em. $—” or “ Cash received of Emma $—We do not say that these entries were incompetent, but it must be apparent in the light of the evidence as to the relations of the parties and her pecuniary means, and from some of the amounts stated, as $113.7(9 and $14.Ifl, and the place and manner of their appearance, that their weight as proof of loans is but slight. Certainly they are not inconsistent with the supposition that the sums mentioned were moneys received by her for him, and paid over at the times respectively stated. According to the evidence, “she sometimes did sell things from the market garden when he was away from home, and would give the money to him.”

However that may he, these items were all barred by the Statute of Limitations, unless revived by a new promise sufficient for that purpose. Upon a careful examination we fail to find any evidence that he ever in any way alluded to these items or either of them, or to such indebtedness to her as for money loaned, or for any cause that could embrace money loaned. All of it that the record shows which can refer to or include these is the naked entry as made in the diary. The instructions numbered 3 and 5 given for the claimant, upon the subject of new promises to revive a claim otherwise barred by the statute, applying as well to those as to any other items of her claim, were therefore erroneous as given.

Second, wages, being for fifteen years at $4 per week, $3,120. Mo witness testifies to the value of her services, or to any facts upon which to estimate or infer them. James Pullen says: “ Parm hands were worth from a dollar to a dollar and a half a day—plaintiff did not work in the field a great deal, only worked occasionally.” Charles Penny says: I did the field work. Plaintiff assisted William in the truck patch while I was there—would do as much as he did generally. She did the housework. Hired hands, men, were worth $18 per month, including board. Emily did not work with us in the field.” Anna Corken says: “ I can not say what her work was worth. Parm hands were worth one dollar per day, or $18 per month”; and Edwin A. Crapnell says: “Wages for girls were $2-per week during the time Emily was at brother’s, for housework, with board.” It does not appear directly or by reasonable Inference that she worked in the field as much, in all, as four days, and how much is entirely uncertain. Her aunt, who was there all the time except about a year, and assisted in the housework, says she “ never saw her in the cornfield plowing or gathering corn, but saw her once or twice unloading corn.” Anna Corleen, who lived for eighteen years within a mile and a half, and was there frequently, saw her unloading corn once. Hannah Crapnell, a sister-in-law of the deceased, who knew the claimant from her childhood, and was often there, “ never saw her working in the field.” Edwin A. Crapneli, brother of deceased, says the same. Mary Moseley, who knew her and her uncle from her earliest recollection, saw her doing all kinds of housework but never working out of doors.” Those who did so see her fail to specify any number of times and speak of them as only occasional and very rare. The truck patch had been cultivated for five or six years; for the last year or two the deceased was not able to do much of the heavy work, and claimant helped him considerably; but the evidence furnishes no means of estimating the time or amount. The housework which she did quite regularly, was not heavy, as is expressly shown, and during nearly all the time she had help. So that the most certain and definite evidence of the value of her services is the testimony of Edwin Crapnell, that girls’ wages were $2 per week.

This claim also is barred for all but five years, unless anew promise was shown. And here we find no evidence whatever of any promise or expression on the subject by the deceased to the claimant. In every instance the language is shown to have been addressed to some other person who was neither her agent to receive a promise or do anything else in respect to her claim, nor one having any legal or equitable interest in it.

In only one was she present. On that occasion, which was in Movember, 1881, a month or so before his death, he said •'‘she must and should be paid for her work, and that he wanted to make her a deed of the north eighty acres—he wanted to pay her for her work;” but on cross-examination the witness, her aunt, Mrs. Stephenson, testified that “ what he said about it was said to me; he said Emma had been a good girl; had worked hard, and he wanted to reward her for it.” About the same time he said to Alexander Davis: “I have concluded to give Emma all I have; she has been such a good girl and help to me.” Elwood Moseley says he heard him tell Edwin that “he wanted Emma well paid; that she had been a good, faithful girl, and he wanted her to have all his real estate.” Anna Corleen says she heard a conversation between William, his brother, Edwin, and C. W. Bras, when William was on his death bed, in which he said: “ Edwin, I want Emma to have my real estate; she has been a good, faithful girl, and worked hard, and I want her well paid. Edwin said she should have it, and William said that will be right.” Both Edwin and Bras deny this, and say that William was very low; that Bras had been sent for to draw his will; that on this subject he went only so far as to say that “he wanted all of his real estate-—and then stopped, being unable to finish the sentence.

The foregoing is all the evidence that is claimed to show a new promise. Of which it is to be observed first, that these declarations hardly amount to a recognition of legal liability or indebtedness on any account, but are rather expressions of a desire, from a sense of gratitude, to reward the claimant; second, that they relate to her worl& alone, and not to money loaned, or any other cause; and third, that they were not made to her or her agent, nor any person legally or .equitably interested in the claim. Such declarations would be insufficient, for either of these reasons, to revive an indebtedness barred by the statute: Keener v. Crull, 19 Ill. 189; Norton v. Colby, 52 Id. 193; Wachter v. Albee, 80 Id. 47; McGrew v. Forsyth, Ibid. 596; Bloomfield v. Bloomfield, 7 Bradwell, 261; Katz v. Moessinger, Ibid. 536.

For these reasons also, then, the instructions above referred to, Nos. 3 and 5 for plaintiff, were erroneous. Each of them assumed that there was some evidence tending to show language used by deceased to the claimant, admitting a debt to be due to her from him, and showing an intention to pay it.

Interest amounting to $1,200 is charged on the sum so claimed for wages. If the views above expressed are sound, interest is chargeable only on the unpaid wages for five years at the most. But we think none could be lawfully recovered, because there was no evidence of an agreement to pay interest, and the principal due, if any, was not fixed, certain or agreed upon, but was upon a running and unsettled account. Ditch v. Vollhardt, 82 Ill. 134; Cooper v. Cooper, 12 Bradwell, 478; Ibid. 421. The instruction numbered 10, asked by defendant but refused, was proper, because, as we have attempted to show, there was no evidence tending to support the claim for interest.

The next item is for use of horse for eleven years, $275. All that the record shows in relation to this is contained in a single sentence of the testimony of Mrs. Stephenson, which is as follows: “Plaintiff owned a horse that my brother had on the place for twelve or fourteen years, and it was used in doing all kinds of work.” IIow much of this time, if any, was within five years of the filing of the claim, on what terms the horse was used, if any were agreed on, or how much it was worth if not agreed on, are matters of pure conjecture. Of course no interest was recoverable bn this item.

The last is for nursing in last illness, twenty days and nights, $100. We quote all the evidence on the part of the claimant in .reference to this, which is from the testimony of Anna Corleen: “ Mrs. Stephenson was sick—very low—during William’s last sickness. Plaintiff waited on both of them and did the housework, washing included. Her services during that time were worth five dollars per day.” What time? How many days? The claim is for twenty days and nights. This witness on cross-examination says: “I was at the house two days before William died. I only saw Emma working two days; there were two men with William both nights that I was there.” And Edwin testifies: “I was with him almost constantly during his last illness; was there every night and the greater part of the day time. Mr. Foy, Mr. Moseley and others were there, two men remaining with him every night. Miss Moble did not nurse him or set' up with him. She was doing the housework.” Manifestly this item is not proved but is disproved. And thus the entire claim, if any, is reduced, by the proof, to five years wages at a rate materially less than is charged.

The general defense Insisted on as against the claim for services was that they were rendered, not as a servant, hut as a member of the family; without any promise, express or implied, or any expectation of wages; and from what has been said it is apparent that there was much evidence to sustain it. Claimant was not bound to her grandmother, though it was intended she should be to both grandparents during her minority if they should live so long. She was under age when her grandfather died, and William B Crapnell might stand to her in loco ¡parentis, which would constitute the relation of parent and child so far as it affects the matter in controversy. Whether he did in fact was a question for the jury. Yet by the fourth instruction for claimant, they were told, as matter of law, that iC she did not occupy the same relation to him as his child,” and thereby the question was withdrawn from their consideration, which was error.

Whatever claim appellee may have upon grounds of moral right against this estate, we are constrained to find, from a legal standpoint, that the verdict was for a much larger sum than is supported by the evidence. For the errors above in- . cheated the judgment will be reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.


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    Alpheus P. Hall et al. v. Jacob Edwards.
    1. Evidence.—The court is of opinion that the new evidence introduced ' to show that the instrument upon which the vendor’s lien was based was without consideration, does not change the aspect of the case (93 Ill. 249), since it was taken thirteen years after the events testified about, and the witnesses were closely related to appellant and his grantor, and knew the evidence of the facts as presented in the former record before the Supreme Court, and were doubtless affected as to their recollection, by the statements and discussions of the family in the meantime.
    2. Repudiation of agreement.—The defense as to the parol agreement fails for the reason that an answer was in fact filed by defendant's recognized solicitors, and without notice to the contrary, complainant's agent in the foreclosure case was authorized to regard it as the act of the defendant, and a repudiation of the agreement.
    3. Usury.—The court is of opinion that there was no usury in taking the bonus in question, and the agreement for a larger rate of interest than originally received, since there was an additional risk assumed by the creditor in substituting for part of the security previously held, another tract of land, with the value and condition of which he was unacquainted.
    Appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Willougby & Daugherty, for appellants.
    . Messrs. Williams & Lawrence, Mr. W. B. Bradford and Mr. George W. Thompson, for appellee; cited Edwards v. Hall, 93 Ill. 329-335.
   Pleasants, P. J.

On the 23d of December, 1870, appellant executed to Leander Douglass an instrument in writing as follows: “Whereas, Cyrus M. Hall purchased of L. Douglass S. W. 25, T. 9, N., R. 3 East, and N. W. 36, T. 9, N., R. 3 East, and I have purchased from said Hall said S. W. 25-9-3; and whereas, said Douglass has this day conveyed to said Hall said half section of land and taken a mortgage on said N. W. 36-9-3 and N. E. 31-9-4 E., to secure $4,407.97, in one year from Nov. 1, 1870, with 10 per cent, interest, said sum being due for the purchase of said first namedJialf section of land, now, in consideration of the premises, I agree that in case said purchase money is not made under, said, mortgage, said Douglass shall have a lien therefor upon said S W. 25-9-3 East, above described.

Dated Dec. 23,1870. A. P. Hall.”

On which was indorsed the following: “Having sold and conveyed to A. P. Hall the within described "property, southwest 25-9-3, I agree to save him harmless from the within mentioned lien of said purchase money.

Dated Dec. 23, 1870. C. M. Hall.”

Said Gyrus and appellant were sons of Chauncey Hall, who had taken a bond for a deed for the quarter section last above mentioned from the former and assigned it to the latter. At this time Cyrus was owing on his purchase $3,000 with interest at six per cent, per annum from Nov. 1, 1865, and was being pressed for the money. On the other hand, he had received from his father the price in full on his sale and was being pressed for the deed. To meet both these demands he made the arrangement above recited. The amount of the mortgage note mentioned was made up of the principal sum then dne and interest thereon computed at eight per cent., compounded, instead of six simple, as originally reserved, and the papers were dated back as of November 1st, to make the time five years, even.

In default of payment the mortgage was foreclosed by appellee, for whom Douglass had held the title to the land and to whom he had assigned the note and mortgage with the instrument above copied; and the sale under the decree having failed to bring the full amount of the debt-, this bill was filed to enforce the lien for the deficiency upon the S. W. 25-9-3, claimed under that instrument.

The defense originally set up was simply that this instrument was executed after the whole matter had been fully settled by the delivery of the note and mortgage and of the two deeds, and was therefore without consideration; which complainant denied, claiming that it was part and a material part of the same transaction.

It is conceded that the note, mortgage and deeds were signed on the same occasion, early in the evening of Dec. 23, 1870, at the residence of Cyrus M. Hall, in the town of Maquon and eighteen miles from the county seat; and-that at the meeting for this purpose, besides Douglass and C. M. Hall, there were present, in and out, more or less, the latter’s wife, his son, his father, his hired man, the magistrate who took the acknowledgments and the attorney of appellant. All of these, excepting the hired man and the wife and son, were called to testify in the case, and while, as might have been expected after the lapse of seven years and from the different degrees of interest felt in them, they differed as to many circumstances not in themselves impressive or important, excepting Douglass they all agreed and were sufficiently positive that they heard nothing said about his retaining a lien on the quarter section conveyed to appellant, and that the agreement here in question was not among the papers then signed. Appellant testified that he was not present and knew nothing of the terms of the settlement between Douglass and his brother, except as he was afterward informed, but was represented on that occasion by Wm. Humphrey, his attorney; that lie was himself at his father’s house, some three hundred yards distant; that after being notified that his deed was made out he went over to his brother’s where his attorney picked it up from the table and handed it to him, and they returned after a few minutes; and that his first conversation with Douglass about his land was at his father’s house, an hour or so afterward, when the latter came in and said it was all settled up exoejyt that he wanted an instrument in writing to show that the title to the N. E. 31, of which he claimed to have no knowledge, was clear, and induced appellant to sign this paper upon the representation that it would not hurt him if the land was free from incumbrance, that he wanted it to show his client that he had acted in good faith, and that it was not to go upon record; and that witness signed it without reading it or hearing it read or knowing its contents, except as Douglass represented them. And in relation to this interview his father, his mother and his brother-in-law testified to substantially the same effect.

Mr. Douglass’ recollection of the circumstances not important in themselves was also somewhat confused. In some particulars he was contradicted by several witnesses; as to some he was unable to answer; he was not sure just when and where the paper was signed; in some instances he cor rected his own statements previously made, and was generally more or less uncertain. He was, however, very positive and emphatic that he did not deliver the deed to Gyrus before it was well understood that he was to retain his lien upon the S. W. 25, conditionally, as expressed in the agreement; that it was a part of the same transaction, and that he never made the representations mentioned as to its object or effect. It is certain that on the morning of the 24th of December he took the mortgage, deeds and this agreement together to the county seat and filed them for record.

Upon the testimony of these witnesses, which with the several instruments referred to embraced all the evidence in the case, the circuit court dismissed the bill. But the Supreme Court on appeal reversed that decree for reasons confined to a comparison of the weight of the evidence, as set forth in the opinion reported in 93 Ill. 329, and remanded the cause for further proceedings in conformity therewith.

Thereupon appellant amended his answer, and so set up, by way of additional, defenses, a parol agreement by the agent of complainant in the foreclosure case, in consideration of the agreement by Cyrus to interpose no defense, that he would bid off the mortgaged premises for the full amount of the debt, interest and costs; and also that the settlement between Douglass and Cyrus, as to the new rate of interest fixed thereby, was usurious. He also filed a cross-bill praying to have the agreement canceled as a cloud upon his title. Several of the witnesses were re-examined upon some points, and the following additional ones were called, viz.:

The hired man testified that he was in the room a part of the time when the parties were at C. M. Hall’s to sign the papers; that A. P. Hall was not then present; that he came in afterward with his attorney, took his deed, and turned around and went out, without signing any paper or having any conversation about it, and that he had not been there before during that evening.

Mrs. C. M. Hall testified that appellant did not sit down while he was there, nor sign any paper; that she did not understand anything about the terms of this settlement in particular, and that she had refused to be sworn on the former hearing for reasons relating to the family.!

A son of C. M. Hall, who was at that time about thirteen years of age, testified to the same effect, and further, that his father signed the agreement to indemnify appellant, indorsed on the paper in question, on the next morning, at his grandfather’s house; that Douglass then told his father it was a matter to show that he was acting in good faith for his client, and was not to be of record; that his grandmother went to a drawer and handed a deed to appellant, who handed it to Douglass, together, as witness thinks, with a dollar for recording it.

Mrs. Meeks, a sister of appellant, remembers that he went over to C. M. Hall’s that evening with Humphrey to get the deed, and was not gone, as she should judge, over ten minutes; that he brought back a deed which he gave to his mother to put away; that Douglass came over there for the first time a while afterward, and after witness had gone to bed; • that on the next morning Douglass said the paper was only intended to show his client that he was acting in good faith, and was not to go on record. She could not say whether her brother had then signed it.

Mrs. Camp, another sister, stated the same. She too had .retired when Douglass came.

Upon this testimony, old and new, a decree was entered for complainant, to enforce thelien as prayed in the bill, and defendant took this appeal.

The court is of opinion that the new testimony does not materially strengthen the old or change the aspect of the case as to this ground of the defense. It was taken thirteen years after the events testified of. The witnesses were closely related to appellant and his grantor. They knew the evidence of these facts as presented in the former record, shared the disappointment at the view taken of it by the Supreme Court, were advised of the objects and needs of the new hearing, and doubtless affected, as to their recollection, by the statements and discussions of the family in the mean time. These circumstances would greatly lessen the weight and force which their testimony would otherwise carry.

But what is more important to consider is that it relates only to the time of signing the agreement in question by appellant, as being an hour or two after he had received Ins deed and at another place, and to representations by Douglass as to its character and object—circumstances which, as the Supreme Court hold, are not decisive of the real issue, nor very material to it. Douglass had nothing to do with the deed from Cyrus M. Hall to appellant. He could not dictate its form nor interfere with its delivery at any time. But that deed could not release his lien. So that if appellant did get it before he signed this agreement and had never agreed to the retention of the lien until he signed the latter, these facts would avail him nothing unless the deed from Douglass to his grantor had also been previously delivered, and without condition or without notice to him of such condition; and the issue is whether it had or had not been so delivered. Upon this issue the new witnesses throw no new light.

It seems that the settlement between Douglass and C. H. Hall must have been agreed on during the afternoon and before the arrival of the justice of the peace. When he came the papers to be acknowledged had been drawn and he heard nothing of the terms of that settlement. Ho witness besides the parties to it pretends to know anything on the subject directly, except Ghauncey Hall and Win. Humphrey, who claim to have been with them during most of the negotiation, and whose testimony was fully before the Supreme Court. That of Hall is not referred to in the opinion, whether because it was overlooked by the writer just at the time of writing, or because it was deemed unimportant or sufficiently disposed of by what was said of the other, we have now no means of knowing; but it could hardly have escaped notice or failed to receive due attention in the consideration of the case. They were both positive that the S. W. 25 was to be released; but they differed as to some of the circumstances, were uncertain about others, and Humphrey testified to one at least that did not occur. He stated twice and “ distinctly remembered ” that when Douglass received the new mortgage he delivered to Cyrus the old one, though nobody will now pretend that there was any old one. And he mentions a significant fact, not adverted to by the Supreme Court, which is that Cyrus refused, against his remonstrance, to make a deed of general warranty to appellant and qualified the covenant; and further, that instead of taking the deed so made to his client, who had declined to attend because he was not on friendly terms with his brother, he went and brought him to aet for himself in the matter of its acceptance after explanation by the way of the effect of the covenant as qualified. Why was this, if they did not all understand that the lien of Douglass upon the S. W. 25 was not absolutely released? It is altogether probable that several plans of settlement had been discussed, and that Douglass, in speaking of the one he claims was finally agreed on, did say that it would in fact release that quarter .if the N. E. 31 was free from incumbrance and of the value they represented it. And this being one object of the parties and the main one of these two witnesses, it may well be that the practical effect, thus declared by Douglass and recognized by all, came to be remembered by them after so long a time as the legal effect, while the reservation of the lien, being upon a condition which they thought so unlikely to happen, made but a slight impression and at length passed out of mind.

G. M. Hall’s testimony that appellant’s land was released may be accounted for in the same way, so far as it goes, and more easily than that of his father and Mr. Humphrey, for it was in law and fact released as between Douglass and himself. But that he then knew it was retained against the land in the hands of appellant, this qualification of his covenant of warranty and his written recognition of the fact by the guarantee he indorsed on appellant’s agreement must be held to prove, as' against his statement upon mere recollection seven years afterward.

Appellant knew the terms of settlement only as he was informed. But Humphrey told him of the qualified covenant in the deed made to him, before he received it; he went to his brother’s, got his deed from the table by the hand of his attorney and went out without waiting to learn whether the business had been completed between Douglass and his brother and the deed to his brother delivered or not, and he himself says that Douglass told him before he signed the agreement that it was “ all settled up except he (Douglass) wanted” that agreement. Hnder these circumstances his denial, so ■long afterward, can have but little if any weight as against his written agreement made at the time.

These contemporary writings signed by the parties in interest, both of which declare against their interest that the agreement in question was a part of the transaction, supported by the positive testimony of Mr. Douglass and by the probabilities of the case, must still be held under the decision of the Supreme Court, to outweigh the present recollection of those same parties to the contrary, and that of two other witnesses related to them and to the transaction as were Chauncey Hall and Mr. Humphrey.

This agreement was not the result of an afterthought on the part of Douglass. Mr. Roberts, the justice of the peace, states that while they were together and before the papers were executed Douglass remarked that he knew nothing about the N. E. 31, and Cyrus M. Hall said he would guarantee it. Duty to his client then plainly required that he should not release the lien upon S. W. 25 except upon the condition set forth in appellant’s agreement, and he saw it.

Hall knew the N. E. 31. If it was what he represented the conditional lien on S. W. 25 could do no real harm, and by the conveyance of it to him and its omission from the mortgage back Douglass enabled him to make the deed to his brother according to his bond, subject only to this nominal incumbrance. To so just a precaution, by an attorney ignorant of the new security, in behalf of a client, he could not well object. And that nothing was said about it to appellant when he came in and got his deed may be due to the known ill feeling existing on his part toward his brother and an unwillingness to excite it in that house and presence. It was better to leave the arrangement with him to be made by Mr. Douglass afterward and elsewhere.

The time, then, at which this agreement was signed being immaterial, what remains of the new testimony relates to Mr. Douglass’ representations as to its effect, which is pertinent only as tending to show fraud in its procurement and to impeach his credibility. For reasons above suggested in reference to the recollection of Chauncey Hall and Mr. Humphrey about the terms of settlement, xve incline to think that these new witnesses have in like manner mistaken what he said in reference to the practical effect of the paper upon the assumption of the value and condition of N. E. 31, as'statedi for its legal effect. This is not only the charitable, but also under the circumstances the probable and natural view of their testimony. It impeaches nobody’s veracity or intelligence.- It reconciles the denial of Hr. Douglass with their assertions. It makes Hr. Humphrey’s advice about signing the agreements intelligible and consistent with his duty as an attorney, and the whole transaction business-like and sensible. The only other views that can be taken of it are that it is willfully false, involving perjury in the witnesses, or literally true. The latter would impeach not only Hr. Douglass, but C. H. and A. P. Hall and Hr. Humphrey in respect both to honesty and intelligence. It make's Douglass false in his testimony, grossly dishonest in design toward his client and the Halls, and stupid in the execution of both, and the latter as weak in being deceived by the one and dishonest in abetting the other. On the whole we are of opinion that the reasoning of the Supreme Court is not affected by the additional evidence produced on this hearing.

The defense secondly set up by the answer fails for the simple reason that admitting the agreement for the sake of the argument, which Adams denies, and his authority to make it, which he also denies and of which no proof was adduced, it was not observed by the defendant.

An answer was put in. It is said that the cause was continued, not because of this answer, but to obtain service on another defendant. That, however, does not change the fact that an answer was filed for Cyrus-H. Hall, contrary to the alleged agreement. It is-also said that this answer was drawn and filed by Hr. Hannaman as solicitor, in ignorance of the agreement and without the request or knowledge of Hall. But this, if true, is unavailing, because the complainant was not aware of it.

The answer was in fact filed by defendant’s recognized solicitors, and without notice to the contrary Adams was authorized to regard it as the act of the defendant and a repudiation of the agreement.

We see no usury in taking the bonus, so called, of 8507.97, and the agreement for a larger rate of interest than was originally received. Manifestly these were not the considerations for forbearance alone. There was an additional risk assumed by the creditor in substituting for part of the security previously held, another tract of land with the value and condition of which he was unacquainted. And whether this substitution was so made as to release the former absolutely, or only upon condition, does not affect the principle. The one would be as valid a consideration in law as the other. Here was the additional risk of the necessity for another suit to enforce the renewed lien, with the unknown delay, expense and trouble that might attend it.

Perceiving no substantial error in the record, the decree will be affirmed.

Decree affirmed.


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    Frederick P. Burgett et al. v. John S. Paxton et al.
    1. Damages on injunction bond.—Appellants filed a bill to enjoin the sheriff and judgment creditor from selling certain land under execution against one W., and executed to them a bond conditioned to “ prosecute such injunction suit to effect, and pay all costs and damages that may arise in said case or grow out of the same in any manner whatever.” The judgment creditor then assigned his judgment against W., and the assignee of the judgment was on his own petition made a co-defendant with the sheriff and original judgment creditor, hut no new bond was given. On final hearing the injunction was dissolved and hill dismissed, and the sheriff and original judgment creditor brought action upon the bond “for themselves and for the us.e of” the assignee of the judgment. Held, that the penalty of the bond was limited to the damages sustained by the obligees, and the assignee of the judgment not being named or referred to in said bond, no recovery could be had for any damages sustained by him. •
    2. Bond—Not Transferable —The bond being an obligation to pay contingent upon conditions personal to the obligees would not be transferable without Consent of the obligors, and did not run with the interest covered by it.

      3- Surety'—Liability strictly construed.—The liability of a surety is not to be extended by implication or construction beyond the terms of his contract.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed August 20, 1884.
    Mr. B. C. Taliaferro, for appellants
    Mr. Louis D. Holmes, for appellees.
   Pleasants, P. J.

In 1878 three of the appellants filed their bill against John S. Paxton, who was then sheriff of Mercer county, and Frank H. Bernard, who was plaintiff in an execution held by him, to enjoin the sale of certain laud that had been levied on as the land of Wells Willets, and executed to them a bond, with the other appellant as surety, conditioned Jo “prosecute said injunction suit to effect and pay all costs and damages that may arise in said case or grow out of the same in any manner whatever.” The judgment against Willets on which said execution issued having then been assigned to Shadrach C. Burlingim, he was afterwards made a party defendant to the bill on his own petition and allowed to answer it, but no new or other injunction bond was given or required. On final hearing upon the pleadings and proofs a decree was made dissolving the injunction and dismissing the bill, which decree was affirmed by the appellate and supreme courts. 99 Ill. 293. Thereupon, on November 11, 1882, this action was brought upon said bond by Bernard, and Paxton, the obligees therein named, “ for themselves and for the use of Shadrach C. Burlingim,” against appellants, the obligors. The declaration in the assignment of breaches averred that the plaintiffs and said Burlingim had paid to solicitors, and for costs and expenses in the circuit, appellate and supreme courts a large sum of money, to wit, $1,500; that the execution sale was prevented, from July 26, 1878 until July 12, 1881, whereby for all that time only six per cent, per annum was realized for interest on the judgment, which was for $1,200, instead of eight per cent., as otherwise would have been; and, generally, that they suffered damages to a large amount—all by reason of said injunction.

Upon issue joined on a plea of nil debet a jury was waived and trial had by the court, on which there was a finding for the plaintiffs and judgment thereon entered, añera motion by defendants had been overruled, for the penalty of the bond, to be discharged on thv "payment of $567, the damages assessed. Defendants bring the record here for review by appeal.

Whether the amount so found included anything for interest more than the judgment bore while the execution sale was restrained, or for anything whatever besides solicitors’ fees and costs paid, we are unable to ascertain. The evidence would perhaps have warranted the finding for solicitors’ fees alone, unless, as claimed by appellants, the injunction was only ancillary or incidental, in which case the recovery should have been limited to the amount paid for services strictly directed to the procurement of its dissolution.

We regard the right to the injunction as the principal and ultimate question in the case. Everything in it that was material or relevant bore upon that question. It depended on two others: first, whether the Bernard judgment was a subsisting lien, and, second, whether it had precedence of the claim of Burgett as to the land levied on; and these comprehended the whole controversy.

We should therefore not be disposed to reverse the judgment in this case for the alleged errors of allowing damages for loss of interest on the amount of the Bernard judgment against Willets, or too much for solicitors’ fees for procuring the dissolution of the injunction.

But it was shown and formally agreed by the parties on the trial, that neither Bernard nor Paxton, the plaintiffs, had sustained any damages; that neither of them had any interest in the judgment against Willets when the injunction was sued out; that Burlingim alone assumed the entire defense of the injunction suit, employed the solicitors therefor, paid all the fees, costs and expenses, and sustained all the damages, whatever they were, in his own sole interest.

Plaintiffs could p foperlv recover, if at all, only for such as are described and claimed in their declaration: Mix v. Singleton, 86 Ill. 191. All that are therein claimed are described as having been susta’ned by them, and Burlingim, that is, jointly. It may be doubted whether under any good declaration upon this bond they could recover for JBurlingim’s portion of those so sustained. Ovington v. Smith, 78 Ill. 250. Put is there not here a variance between the allegation and the proof that would be fatal to this judgment, even if the bond covered all that were either claimed or proved?

We hold, however, that a proper construction of the language in the condition—“ all costs and damages that may arise in said case or grow out of the same in any manner whatever” •—must limit the description to such as actually and legitimately accrue to the obligees; and see no ground upon which appellants can be held liable, at the suit of any party, on this bond, for damages sustained by Burlingim alone. He was not named nor embraced by any description or reference in it as one of the obligees. It did not purport to be for the use of anybody that might be damnified, except those so named, nor are we advised of any law that gives it, as it does some others, that effect. It was not assigned to him; and if it had been, the obligation to pay being contingent upon conditions that were personal to the obligees—the accruing of certain damage to them—it was like a policy of insurance or other such agreement to indemnify, not transferable without consent of the obligors, and did not run with the interest covered by it. He acquired none of their rights in it by succession or representation. Mor did they represent him. When his interest was made known he became a necessary party to the injunction bill. Bernard then had no interest in the Willets judgment, and Paxton, being an agent purely instrumental was only a nominal though a necessary party. The court would not allow them to represent Burlingim; therefore he appeared for himself. But this was after the bond had been executed in terms that did not include him. He might have asked and obtained an order of the court that another should be executed, but he did not. Without it lie voluntarily proceeded and incurred the damages in question.

This is an action at law and a surety is involved. The liability is not to be extended by implication or construction beyond the terms of his contract. We are not aware that the strictness of the rule which disregards consideration of equities and of intention, beyond the terms as declared in Sharp v. Bedell, 5 Gilm. 88, pp. 93 et seq., has been at all relaxed. The People v. Tompkins, 74 Ill. 486-7; Cooper v. The People, 85 Id. 417; Mix v. Singleton, 86 Id. 194; Phillips v. Singer Mfg. Co., 88 Id. 307.

Holding those damages not covered by the obligation, the judgment of the circuit court therefor is reversed.

¡Reversed and remanded.


author: Davis J.

text:
    Josiah Mason et al. v. Trustees of Schools et al.
    The court is of opinion that the additional testimony offered on the new trial does not strengthen the case of appellees (11 Bradwell, 455), and that on the whole proof as made it fails to justify the decree of the court below.
    Appeal from the Circuit Court of Morgan county; th'e Hon. C. Epler, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Brown & Kirby, for appellants.
    Mr. C. D. Hodges and Mr. J. W. English, for appellees.
   Davis J.

This was a suit in chancery commenced by appellees, who were judgment creditors of Josiah Mason, one of the appellants, to set aside two deeds as fraudulent and void as against them, to certain lands in Greene county.

The case was before ns at the May terra of this court and is reported in 11 Bradwell, 455. We then held that the proof in the case fell far short of justifying the decree rendered in the case by the court below, which was that the deeds were fraudulent and void as against the complainants in the bill, and we reversed the decree and remanded the cause.

Since then the case has been again tried by the Circuit Court of Morgan county on the same testimony, with the additional evidence of three witnesses, the testimony of one of whom, it is conceded by appellees, establishes nothing.

The court below again found the issues for appellees and decreed as before.

We do not think the additional testimony offered on the new trial strengthened the case of appellees, and we are still of the opinion that on the whole proof as made, it fails to justify the decree of the court below. It must therefore be reversed and the cause remanded.

Decree reversed.


author: Davis, J.

text:
    George Baren v. John Cain.
    1. Bailment—A ssumpsit.—For a breach of a contract of gratuitous bailment, an action of assumpsit will lie. Where a horse was loaned without compensation, to a party, and while in his possession received injuries from which he died, and the bailor brought an action before a justice of the peace, based on a demand for §150, and the bailee appealed to the circuit court, where the suit was taken from the jury and dismissed for want of jurisdiction and judgment rendered against the bailor for costs. Held, that this was error. A justice of the peace, and therefore the circuit court, had jurisdiction (R. S. Ch. 79, § 13).
    2. Negligence—Burden op proop.—Where goods when placed in the hands of a bailee are in good condition, and when they are returned are in a damaged condition, or are not returned at all, the law will presume negligence on the part of the latter and impose upon him the burden of showing that he exercised such care as was required by the bailment.
    Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Sibley, Carter & Govert, for appellant
    Messrs. JBonney & Woods, for appellee.
   Davis, J.

This was a suit brought by appellant before a justice of the peace on a demand of $150, and after a trial and judgment against appellee, an appeal was taken to the circuit court.

In that court appellant, by his witnesses, established the following facts: He was the owner of a young horse, and appellee, who was a sewing machine agent and a neighbor, applied to him to borrow a horse for the purpose of hauling sewing machines around the country a little and to go to Quincy. Appellant loaned the horse to appellee for such purpose on the 19th day of March, 1883, and was to receive no compensation for the use of the horse. Appellee was to have the use of the horse until plowing time, at which time appellant would want him for his own use. Appellee took the liorse and put him in his stable, and a few days afterward the horse came home badly hurt. The horse had been tied to the gate of appellee’s premises and had jumped upon the pickets of the gate, and was so badly injured that he died shortly afterward.

When appellant had introduced ail his testimony to the jury and had rested his case on such testimony, appellee, by his counsel, moved the court to dismiss the suit on the ground that the court had no jurisdiction of the subject-matter of the suit. The court sustained the motion and dismissed the suit, and rendered a judgment against appellant for costs of suit.

To reverse the judgment this appeal was taken by appellant, and the errors assigned are that the court erred in sustaining the motion to dismiss the suit for Avant of jurisdiction, in dismissing the suit, and in rendering judgment against appellant for costs of suit. These errors, avo think, are Avell assigned. The eAddence established a contract of gratuitous bailment. A bailment is defined to be a delivery of goods, in trust, on a contract, express or implied, that the trust shall be duly executed, and the goods re-delivered as soon as the time or use for which they were bailed shall have elapsed, or be performed. Jones on Bailment, 117. For the breach of such a contract, it seems an action of assumpsit will lie. Chitty in his work on Pleading, Vol. 1, page 102, lays down the rule that assumpsit will lie against attorneys and solicitors, wharfingers, surgeons, innkeepers, carriers and other bailees, for neglect and other breach of duty. The same author, in the same work, Vol. 1, page 99, says: “ The breach of all parol or simple contracts, whether verbal or Avritten, or express or implied, or for the payment of money, or for the performance or omission of any other act, is remediable by action of assumpsit.”

In notes to section 3 of Story on Bailment, page 6, the author, after citing numerous cases, says: “And so a bailee being trusted with another man’s goods must be taken to be a sufficient consideration if the bailee once enters upon the trust and talees the goods into his possession.” And further he says: “ The modern ca^es of Whitehead v. Greetham, 1 McClel. & Younge, 205, etc., etc., seems fully to sustain the doctrine that a delivery of the thing bailed is a sufficient consideration to support an action of assumpsit in cases of this sort.” And again he says: “ In respect to the form of action it seems that in most if not in all cases of bailment, the bailor has his election of a remedy against the bailee for negligence, misfeasance, or tort, either by an action on the case, or of assumpsit.”

Section 13 of Chapter 79 of Revised Statutes, page 692, provides that justices of the peace shall have jurisdiction in actions arising upon contracts, whether under seal or not, express or implied, for the recovery of money only. The sixth clause of the same section provides that justices of the peace shall have jurisdiction in all cases where the action of debt or assumpsit will lie, if the damages claimed do not exceed two hundred dollars.

Where goods when placed in the hands of a bailee are in good condition, and when they are returned in a damaged state, or not returned at all, in an action by the bailor against the bailee the law will presume negligence on the part of the latter, and impose upon him the burden of showing that he exercised such care as was required by the bailment. Funkhouser v. Wagner, 62 Ill. 59.

While it seems that negligence on the part of the bailee will be presumed in such a case by the non return of the property bailed, yet really in the case before us the question was not fully presented, for the case was taken from the jury and submitted to the court on the single question of jurisdiction over the subject-matter of the suit. We think the justice of the peace, and therefore the circuit court, had jurisdiction of the case, and it was error for the court below to take it from the jury and dismiss it and render judgment against appellant for costs of suit.

The judgment must therefore be reversed and the cause remanded.

Judgment reversed.


text:
    Alexander R. Chesnut v. Thomas J. Chesnut, Ex’r etc.
    1. Inference from guvinq a check.—The natural inference from the giving of a check is that it was given in payment of a debt due the payee from the drawer, and in order to charge the payee as a debtor to the drawer, it must be shown that, the check was in fact loaned to the payee.
    2. Evidence.—A father executed a power of attorney to his son, authorizing and empowering him to release judgments and mortgages, to collect and receipt for moneys, to deposit in bank and withdraw therefrom moneys, and generally to transact business. By this suit the executor of the father's estate seeks to recover the amount of a check from W. to the father, and the amount of a check from the testator to appellant, his son. Held, that to charge appellant with the amount of the W. check it must he shown by a preponderance of evidence that the money came into his hands. As to the second check, in the absence of all evidence showing that the transaction was a loan ,or that the money was received on the check for the use of the testator, the executor can not recover.
    Appeal from the Circuit Court of Morgan county; the Hon. C. Eplee, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Brown & Kirby, for appellant;
    that a check payable to A or bearer is not evidence of money lent and advanced to A by the drawer of the check; the presumption is that it was given in payment of a debt, or that value was received for it at the time; cited Fleming v. McLain, 13 Pa. 177; Baker v. Williamson, 4 Pa, 469; Conroy v. Warren, 3 Johns. 259; King v. Phillips, 1 Pet. R. 350.
    Messrs. Morrison & Whitlock, for appellee.
   Davis, J.

This was a suit brought by Thomas J. Chesnut, executor of the estate of Alexander K. Chesnut, deceased, against Alexander K. Chesnut, the appellant, to recover a sum of money claimed to have been received by appellant for the use of the testator of appellee. It appears by the record that on the first day of May, 1880, Alexander E. Chesnut, Sr., had on deposit to his credit with the firm of M. P. Ayers & Co.*, bankers, the sum of $2,095.63, which was afterward withdrawn by three checks, as follows: one dated May 13th, payable to A. E. Chesnut, Jr., for $200; one of May 14th, to Irwin Dunlap for $232.90; and one of same date to A. E. Chesnut, Jr., for $1,612.73, which last amount was placed to the credit of A. E. Chesnut, Jr. on the books of the bank. It also appears that on the 24th of May, 1880, Alexander E. Chesnut, Sr., held a note on Wiegand & Widmayer for $659.33, which they paid on that day by a check drawn by them on the Jacksonville .National Bank, payable to A. E, Chesnut or bearer. This check was paid over the counter at the bank on the 31st day of May, 1880.

On the 31st day of May, 1880, Alexander E. Chesnut, Sr., executed a power of attorney to his son, authorizing and empowering him to release judgments and mortgages, to collect and receipt for moneys, to deposit in bank and withdraw therefrom moneys, and generally to transact business for him, but ■when this power of attorney was in fact delivered does not appear.

By this suit the executor seeks to recover the amount of the check from Wiegand & Widmayer to Chesnut for $659.33 and the amount of the check from the testator to appellant for $1,612.73, and interest on each sum from the date of the payment.

The cause was tried by agreement without a jury, and the court below found for appellee and rendered a judgment in his favor against appellant for $2,768.66.

This appeal was taken to reverse the judgment and among the errors assigned are the following: That the court erred in finding the issues for the plaintiff. That the court erred in rendering a judgment for plaintiff, not supported by any competent evidence, and the court erred in not rendering a judgment for the defendant. We think these errors are well assigned. So far as the judgment embraces the check for $659.33 of Wiegand & Widmayer, it is not supported by any evidence whatever. The check was made payable to A. E. Chesnut or bearer and was paid over the counter by the bank to some one who presented it, but who that person was is unknown.

The evidence tends to prove that the check was received by A. It. Chesnut, Sr., in payment of the note, on the 24th of May, 1880. Where it was between the time it was received by the old gentleman and the day it was presented at the counter of the bank for payment is not shown, nor is it shown that appellant, ever had it in his possession or knew of its existence. To charge appellant with the amount of this check, it musí be shown by a preponderance of evidence that the money came into his hands. The mere fact that appellant was empowered by his father to do those acts specified, in the power of attorney, and the directions of the father with reference to putting money in bank without specifying what money, as testified by Mrs. Dunavan and disputed by appellant, can have no weight in fixing the liability of appellant for the Wiegand & Widmayer check m the absence of all testimony that he ever had it in his possession, or received the money which was paid on it at the counter of the bank.

The other check for $1,612.73 embraced in the amount of the judgment was given by the testator and made payable to the order of appellant and by him drawn from the bank. What was the nature of the transaction between the father and son, which resulted in the giving of t-liis check is not made to appear by the evidence. The claim of the executor to recover the amount of this check is based solely on the naked fact that the check was given by the testator to appellant and the money received by the latter from the bank. In the absence of all testimony showing that the transaction was a loan of money, or of the check from the father to the son, or that the money was received on the check for the use of the testator, the claim of the executor for the amount of the check can not be sustained. The natural inference from the giving a check is, that it was given in payment of a debt due the payee from the drawer; and in order to charge the payee as a debtor to the drawer, it must be shown that the check was in fact loaned to the payee. 2 Parsons on Notes and Bills, 34; Cooper v. McNeill, 14 Bradwell, 403.

We think the evidence fails to support the finding of the court, and therefore the judgment must be reversed and the cause remanded,

- Judiment reversed.