text:
    Frederick W. McKinney, Defendant in Error, v. Charles Mulvey Manufacturing Company et al., Plaintiffs in Error.
    Gen. No. 15,169.
    1. Landlord and tenant—what does not waive right to forfeit lease for nonpayment of rent. Failure to enforce- the strict performance of a lease as to the payment of the rent stipulated to be paid for a portion of the period of the demise does not waive the right of the landlord subsequently to enforce such strict performance and if the lease provides for the right of forfeiture without notice no notice of intention to forfeit is essential to the maintenance of an action of forcible entry and detainer for the recovery of possession.
    2. Landlord and tenant—rights of assignee of former. An assignee of a lessor succeeds to all the rights and remedies reserved by the lease made by the original lessor.
    3. Contracts—how executory under seal cannot he varied. An ex-ecutory contract under seal when its terms are clear and unambiguous cannot be varied, contradicted or modified by parol evidence of conversations or by parol agreements oral or written, made prior to or contemporaneous with, dr subsequent to its making in an action at law to enforce its provisions.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed October 21, 1910.
    Bolen- & Stewart, for plaintiffs in error.
    Charles Scribner Eaton-, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted from a judgment of the Municipal Court of Chicago rendered upon a directed verdict in an action of forcible detainer, instituted by Frederick W. McKinney, August 10, 1908, against Charles Mulvey Manufacturing Company, plaintiff in error, for the recovery of possession of premises in the city of Chicago. The plaintiff in error filed a plea of not guilty. During the trial the plaintiff dismissed the case as against defendants Barry and Gervais.

The plaintiff below, defendant in error here, to maintain his action offered in evidence a certain lease dated August 1, 1907, executed by one Albert L. Berry of the first part, and plaintiff in error of the second part, and an assignment in writing to the plaintiff by Berry of all his interest therein and the rents thereby secured, dated April 17, 1908; also evidence tending to show that the property described in the lease was occupied by the defendant, and that the same had been conveyed by Al. L. Berry to the plaintiff who was then the owner; that the rent for August, 1908, was not paid on or before August 5, 1908, according to the provisions of the lease, and on August 6, 1908, plaintiff elected to terminate the leasfe, and signed a notice to that effect and to surrender possession of the premises, which was served on the defendants on August 10, 1908.

USTo controverted question of fact is presented by the evidence. The main question in the case is presented by the evidence of the defendant on which it is urged that the plaintiff waived his right to declare a forfeiture of the lease by receiving past-due payments of rent, and that where such a provision of the lease is so temporarily waived the plaintiff could not thereafter enforce the strict terms and provisions of the lease in that respect by declaring a forfeiture without first giving to the defendant notice of his intention so to do.

The evidence of the defendant upon which this contention is based, and the same facts also appear in part in the testimony of the plaintiff’s witnesses, tends to show that the plaintiff did not give the defendant any notice on or before August 5, 1908, that he would declare a forfeiture or intended to do so, if the rent was not paid promptly on or before August 5, according to the provisions of the lease, except a letter to the defendant dated June 10, 1908, which among other things says: “This is to advise you that I insist upon prompt payment of rent on the 5th day of each month, and desire you to make a complete payment of the items due up to the 5th day of June before the end of this week;” and did not give any notice of such election until August 10, 1908; that a, check dated August 7, 1908, of the defendant for the amount of the rent due on August 5th was received by the plaintiff on August 7th through the mail. The check was immediately turned over to plaintiff’s attorney to be by him returned to defendant. This was done on the next day with a statement in the letter in which it was inclosed that the reason for returning it was that on August 6, 1908, the plaintiff had elected to declare the lease at an end, and a request that the defendant surrender possession of the premises at once.

In the afternoon of August 10, 1908, the defendant company tendered the currency, $166.66, for the rent to the plaintiff who refused to accept it. Later in. the afternoon the defendant company by its representatives went to the office of plaintiff’s attorney and placed upon his desk a sum of money, and a letter addressed to E. W. McKinney and Charles S. Eaton: The letter was as follows:

“Gentlemen: We hand you herewith the sum of $166.66 in currency, being August rent on the premises occupied by Charles Mulvey Manufacturing Company.”

Mr. Eaton refused to take the money stating he had no authority to collect any rents. The representatives then said that they would leave the money there, and Mr. Eaton replied that he would not be responsible for it. They then left the money on Mr. Eaton’s desk and went away. It remained there until the close of business for the day, when Mr. Eaton placed the money in an envelope without counting it, and on the trial of this cause tendered the envelope and its contents in court.

The evidence shows that the defendant company did not pay its rent promptly as provided in the lease, and as requested by the plaintiff, and that plaintiff brought suit for a part of the May rent and for the June rent. The July rent was not paid when due, and the plaintiff caused a five day notice to be served on the defendant company.

In the tenth paragraph of the lease it is provided:

“It is expressly agreed between the parties hereto that if default be made in the payment above reserved or any part thereof, or in any of the covenants or agreements herein contained, to be kept by the party of the second part, it shall be lawful for, and the party of the second part requests the party of the first part, or his legal representatives, at his or their election, to declare said term ended, to re-enter said demised premises or any part thereof and the said party of the second part or any other person or persons occupying the same to expel, remove and put out, using such force as he may deem necessary in so doing, and the said premises again to repossess and enjoy as in his first estate; and in order to enforce a forfeiture of this lease for default in any of its conditions it shall not be necessary to make demand or to serve notice on the party of the second part, and said party of the second part hereby expressly waives all right to any demand or notice from said party of the first part of his election to declare this lease at an end or declaring it so to be; but the fact of the non-performance of any of the covenants of this lease, shall in itself, at the election of the party of the first part, without notice or demand constitute a forfeiture of said lease, and at any and all times, after such default, the said party of the second part shall be deemed guilty of a forcible detainer of said premises.”

And the last clause of paragraph eight provides:

“nor shall the receipt of said rent or any part thereof, or any other act of apparent affirmance of the tenancy operate as a waiver of the right to forfeit this lease and the term hereby granted for the term still unexpired for any breach of any of the covenants herein.”

In Espen v. Hinchliffe, 131 Ill. 468, a forcible detainer case, the validity of a similar clause in a lease, waiving any notice by the landlord of his election to declare the term ended under any of its provisions, or any demand for the payment of rent or the possession of the premises, and agreeing that the simple fact of the non-payment of the rent reserved should constitute a forcible detainer, was upheld. This was followed in Belinski v. Brand, 76 Ill. App. 404; Kenyon v. Manley, 125 id. 615; and Sherman House v. Cirkle, 136 id. 381, all forcible detainer cases.

From the terms employed in the provisions of the lease quoted above, there can he no doubt that it was the clearly expressed intention of the parties to the lease to give to the defendant the first five days in each month in which to pay the rent, and to provide that, in case it was not paid within that time, the landlord would have the clear and absolute right to terminate the lease without the delay, trouble and annoyance of serving a demand and notice of election to terminate, or making any declaration to the defendant in a formal manner, either of his intention to terminate, or of the fact. The defendant, plaintiff in error, having voluntarily entered into these covenants of the lease as^a part of the inducement under which it was allowed to enter into the premises, had as full notice and knowledge of its default in the payment of the rent, and of the effect of such default, as if notice of the intention to terminate had been served upon it in advance. Furthermore, we are unable to perceive how the failure of plaintiff to take advantage of previous defaults on the part of the defendant, can constitute in law a waiver of the provisions of the lease, and establish a new contract between the parties whereby the plaintiff was required thereafter, before action, to give the defendant clear notice of his intention to insist upon a strict enforcement of the terms of the lease, in viejv of its provisions under consideration and especially of the last clause of paragraph eight of the lease quoted above. To so construe these provisions in an action at law, would he to present to this plaintiff, and every land-lord, sufficient inducement at all times and under all circumstances to stand strictly to and enforce promptly the provisions of the lease, for if the landlord, by accommodating delay extends any favor no matter how small or casual to his tenant, he exposes himself to the danger of having the law and courts of law read into his lease terms and provisions which the parties thereto intentionally and specifically eliminated. Such a construction would impose additional hardships upon the tenant and confer no corresponding benefits.

There can he no doubt but that the plaintiff, although not the original lessor in the lease, has succeeded to all the rights and powers of Berry, the original lessor. The plaintiff acquired the premises in question from Berry, the former own? er, by a deed bearing date April 17, 1908, which conveyed to him not only the premises, but also “all leases to tenants occupying premises.” Berry also endorsed upon the lease an assignment of all his interests therein to the plaintiff. Starr and Curtis Revised Statutes, sec. 14, chapter 80, Landlord and Tenant. The defendant attorned to the plaintiff. 'Whatever rights were in the original lessor under the lease became vested in the plaintiff by reason of the conveyance and the assignment, and by force of the statute. Thomasson v. Wilson, 146 Ill. 384.

In our opinion the defenses relied upon by the defendant were properly excluded by the trial court. The law is too well established by the authorities to admit of argument that an executory contract under seal, when its terms are clear and unambiguous, cannot be varied, contradicted or modified by parol evidence of conversations or by parol agreements oral or written, made prior to or contemporaneous with, or subsequent to its making in an action at law to enforce its provisions. 2 Kent’s Com. 556; Alschuler v. Schiff, 164 Ill. 298; Telluride Power Co. v. Crane Co., 208 id. 218; Taylor, Landlord and Tenant, section 44; Ross v. Griebel, 136 Ill. App. 399; Kenyon v. Manley, 125 id. 615; Schneider v. Sulzer, 212 Ill. 87.

We do not think that the sending of defendant’s check for the August rent on August 7, 1908, or the tender subsequently of currency for the rent constituted any defense to the action. Kor do we think the court erred in excluding the agreement of April 23, 1907, and the evidence of the payments of money under the agreement. At most the evidence tended to show equitable rights not available in an action at law. St. L. National Stock Yards v. Wiggins Ferry Co., 102 Ill. 514; I. C. R. R. Co. v. B. & O. R. R. Co., 23 Ill. App. 531. Whether the evidence showed equitable rights or not we do not decide. The cases in equity relied on by counsel for plaintiff in error are not applicable in this suit at law.

In the absence of any controversy in the evidence on the material facts and issues in the case, the trial court properly directed a verdict. Cougle v. Densmore, 57 Ill. App. 591; Marshall v. Grosse Clothing Co., 184 Ill. 421; Anthony v. Wheeler, 130 id. 128.

The judgment is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Sophia E. Hamilton, Defendant in Error, v. Clarence A. Tuttle, Plaintiff in Error.
    Gen. No. 15,182.
    Municipal court—when judgment not set asióte on review. A judgment rendered by the Municipal Court will not be set aside on review unless the Appellate Court is satisfied that the same “is contrary to the law and the evidence” or that the same “resulted from substantial errors * * * directly affecting the matters at issue between the parties.”
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed October 21, 1910.
    Steers, Williams & Steers, for plaintiff in error.
    P. H. Bishop, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, Sophia E. Hamilton, defendant in error, brought suit in the Municipal Court against Clarence A. Tuttle, defendant, plaintiff in error, to recover three months’ rent for a certain apartment at $135 per month, and recovered judgment for $405 from which this writ of error is prosecuted. The evidence offered by the plaintiff in the action tended to show that John Hamilton, former owner of the premises, leased the same by a written lease to John C. Carroll from June 1, 1905, to April 30, 1908, at $135 per month; that after taking possession under the lease Carroll died, and his widow, Marion Carroll, continued to occupy the apartment until March, 1906, when she as executrix of her husband’s will, assigned the lease to the defendant Tuttle, who occupied and assumed the lease and agreed to make all payments and perform all covenants and conditions of the lease on the part of the lessee. The defendant entered into the possession of the premises and paid all rent up to February 1, 1908, to the defendant in error, as landlord who had acquired title to the premises. Defendant vacated the premises in the latter part of January, 1908, and declined to pay any further rent.

The plaintiff in error contends that he rented the apartment from the plaintiff below direct through her agent, and that he paid three months rent in advance to the agent upon his oral agreement to make out a lease and send it to him; that the lease was never made out and executed by the landlord, and that plaintiff in error occupied the premises as a tenant from month to month, paid the rent to January 31, 1908, when he moved out and delivered the keys to the landlord’s agent who accepted them; and therefore he is not liable for the rent sued for.

Upon a consideration of the evidence we are of the opinion that the contentions of the plaintiff in error are not sustained and that the judgment of the Municipal Court is right and must be affirmed.

The evidence shows that there was an assignment of the lease to plaintiff in error with the assumption of the payment of the rent by the plaintiff in error, and with the consent of the defendant in error who accepted the plaintiff in error as her tenant and received the rent from him as it matured.

From an examination of the record we are not satisfied that the “judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties” and, therefore, the judgment must be affirmed (sec. 23 Municipal Court Act).

Affirmed.


text:
    David W. Gillespie, Defendant in Error, v. The Aurora, Elgin & Chicago Railroad Company, Plaintiff in Error.
    Gen. No. 15,207.
    Contributory negligence—crossing railroad trades. Seld, under the evidence in this ease, that the plaintiff in seeking to cross the railroad tracks in question was guilty of such contributory negligence as barred his right to recover.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed, but not remanded.
    Opinion filed October 21, 1910.
    Hopkins, Peepers & Hopkins, for plaintiff in error.
    Coburn & Case, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

David W. Gillespie brought an action in the Municipal Court of Chicago against The Aurora, Elgin & Chicago Railroad Company, defendant, plaintiff in error, to recover damages alleged to have been sustained by him through the negligence of the defendant. The trial resulted in a judgment against the defendant for $485 to reverse which this writ of error is prosecuted.

One of the grounds urged for a reversal of the judgment is that the defendant in error was not in the exercise of ordinary care for his own safety before and at the time of his injury.

The evidence shows that the defendant in error was injured at the intersection of Bellwood avenue in the village of Bellwood, with the tracks of the plaintiff in error, on January 9, 1908, about 3:30 in the afternoon. Bellwood avenue runs north and south, and the tracks of the railroad run east and west. About eighty feet north of the tracks of plaintiff in error, and parallel with them are the tracks of the Chicago & Great Western Eailroad in the village of Bellwood. Two tracks of the Chicago and Great Western Eailroad cross Bell-wood avenue, and two switch tracks, lying south of the main tracks, come up to the east line of Bellwood avenue, hut do not cross it. Plaintiff in error’s road is a double track road, the west bound trains using the north track, and the east bound trains the south track. The tracks east of Bellwood avenue are straight for a distance of nearly two miles. Defendant in error testified he had driven over the Bellwood avenue crossing one hundred times.

On the day in question defendant in error was driving a single wagon loaded with about 1,500 pounds of coal south on Bellwood avenue over the crossing and was struck by one of the trains of plaintiff in error going west on the north track. His wagon was overturned and defendant in error was thrown to the ground. As he approached the tracks of the Great Western Eailroad, a milk train was approaching the crossing from the east. The witness, Hoving, hearing the whistle and seeing the train shouted to Gillespie to stop, he could not make the crossing. Gillespie, however, continued to drive forward and the train just missed him. The witness, Moulton, who testified for defendant in error, was in a nearby saloon and saw Gillespie as he passed it toward the crossing. Moulton saw the milk train approaching, and fearing that Gillespie was in danger ran out in front of the saloon, but the milk train was passing between Gillespie and the witness and the witness did not see Gillespie at first. After the train passed the witness saw him between the tracks, but did not see the train strike him. Several witnesses for plaintiff in error testified that the crossing whistle was sounded from 1,200 to 1,500 feet east of the crossing and a warning whistle was sounded as the train approached the crossing and the emergency brakes were applied. The evidence shows that there was nothing to obstruct the view of defendant in error to the east down the tracks for a distance of half a mile or more. Defendant in error admitted that the seat of his wagon upon which he was sitting was six feet from the ground and stated in his evidence that when he saw the train approaching he urged his horse forward to the utmost. In this he is corroborated by the witness Roberts, a passenger on the front car of the train, who testified that defendant in error was urging his horse on trying to beat the train.

Upon a review of all the evidence we are clearly of the opinion that defendant in error, immediately prior to and at the time of the accident was not in the exercise of ordinary care for his own safety, and that his failure to exercise such care contributed directly to produce the injuries for which the action was brought. There can be no recovery, therefore, on the evidence. It has been held frequently that to cross a railroad under circumstances similar to those shown by this record constitutes such contributory negligence as to preclude a recovery. Peaslee v. Glass, 61 Ill. 94; Dick v. Swenson, 137 Ill. App. 68; Wabash R. R. Co. v. Monegan, 94 id. 82; T. St. L. & W. R. R. Co. v. Gallagher, 109 id. 67; I. C. R. R. Co. v. Batson, 81 id. 142; Cotter v. Chicago City Ry. Co., 141 id. 101.

This view of the merits of the case makes it unnecessary for us to consider and decide the other assignments of error pressed upon our attention in the briefs and assignments of counsel.

The judgment is reversed with a finding of fact.

Reversed but not remanded.


author: Mr. Justice Dibell

text:
    Frank Sanford, Appellee, v. Edward H. Sanford, Appellant.
    Gen. No. 5263.
    1. Partition—what does not render allowance of complainant’s solicitor’s fees erroneous. Failure of the complainant to make parties defendants who appear to have a cloud upon the real estate sought to be partitioned will not defeat the complainant’s right to an allowance of a solicitor’s fee where upon such parties being made defendants by cross-bill it appeared that their claims were not valid.
    2. Partition—removal of clouds. The removal of clouds in a partition proceeding is incidental to the main relief sought and parties claiming interest adverse to the fee may be joined or not as at the time may seem expedient.
    3. Partition—propriety of allowance of cost of abstract of title. The cost of abstracts used by the complainant’s solicitor in preparing his bill and offered without objection in connection with the sale of the real estate involved may properly be allowed as costs to the complainant.
    4. Streets and alleys— what dedication not effective. A dedication by plat not in compliance with the statute is ineffective and an offer to dedicate not followed by acceptance is insufficient to give rise to a common law dedication.
    5. Dower—ivhen widow not entitled to. A widow is not entitled to dower in real estate which in the lifetime of her husband was held by him in trust for others.
    6/ Appeals and errors—-relief accorded where appellee unnecessarily encumbers record. If an appellee has unnecessarily encumbered the record which is filed on appeal, the additional cost occasioned by such course will be taxed against such appellee.

      Bill for partition. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    J. S. Dudley, for appellant.
    O. F. Hanson, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Edward H. Sanford and Frank Sanford were each owners of an undivided one-half of lots 11 to 18, inclusive, in block 3 in Gould’s addition to Morris, and said lots were in one compact body, wherein was one dwelling house and other buildings, constituting the homestead of their father, Edward Sanford, now deceased, during his lifetime. Said Edward H. and Frank Sanford, and their brother, William G. Sanford, each owned an undivided one-third of lot 10 in block 7, in Canal Trustees’ addition to Morris. All this real estate was in Grundy county, Illinois. Frank Sanford filed a bill against Edward H. and William G. Sanford for a partition of said premises. A decree for partition was entered, commissioners were appointed, who reported the premises incapable of subdivision, and there was a master’s sale, at which Frank bought the last named lot for $1,000 and the other lots and certain fixtures hereinafter referred to for $16,150. The sale was confirmed. A petition was filed for the allowance of solicitor’s fees to complainant. Much testimony was heard. Seven hundred and seventy-five dollars was allowed to complainant as a solicitor’s fee and $83 was allowed to him for abstracts of the property procured by him before the bill was filed. The same was ordered paid out of the proceeds of the sale. Edward H. Sanford appeals from those allowances.

The answer and the cross bill filed by appellant did not claim that the hill in any respect failed to properly set out the rights and interests of all the parties in interest. The decree finds the rights and interests of all the parties in interest to he as they are set forth in the bill of complaint. Ho appeal was taken from that decree, nor is it now contended that the decree was erroneous in so finding. What appellant contends is that there were certain apparent, defects in the title of the parties to the premises, and that the hill should have made the parties having those apparent interests defendants and should have asked to have the clouds removed. Appellant set up those supposed defects in his answer and in his cross bill and brought in those parties, and it turned out that they had no claim. The main defect which would appear of record was that between lot 14 on the west and the rear of lots 15, 16, 17 and 18 on the east the plat showed a strip 14 feet wide, which apparently had been originally laid out for an alley, though not named such on the plat. It is conceded that this plat was not so executed as to constitute a statutory dedication. It was only an offer to make a common law dedication. It was filed for record in 1866; the alley was never opened; the offer to. dedicate it was never accepted by the city of Morris; and the dwelling house occupied by the father of the parties as the family residence for many years prior to and until his death, stood directly across the alleged alley. The plat as to said alley therefore has never been effective. Hot being a statutory plat, a conveyance of the lots on each side would convey all of the alley, and therefore a description of the lots on each side included the alley in the description. Appellant contended that the line of the fence which had stood on the west side of lot 11 was slightly in on said lot, and that the buildings on lot 10 west thereof, stood slightly on said lot 11. The owners thereof disclaimed any right in lot 11. It turned out that an outhouse stood eighteen inches on lot 11 and that the eaves of a dwelling house on lot 10 projected very slightly over the true line. Appellant also contended that from the record one would conclude that the wife of William G-. Sanford had a dower interest in an undivided two-thirds of said lot 10 in block 7. William had bought the premises for himself and his brothers at a sale and was trustee for them as to two-thirds of the lot, and a few days later deeded to each of them one-third. His wife had no dower in the property so held by him in trust, and was not a necessary party to the partition of the other one-third. Davis v. Lang, 153 Ill. 175.

Section 39 of the Partition Act permits clouds to be removed from title in a partition proceeding, but it does not require that that shall be done. Section 40, relating to the allowance of a solicitor’s fee, does not require that the clouds upon the title shall be stated and removed in order to entitle complainant to an allowance • of a solicitor’s fee. That is a mere incident which may be brought into a partition suit if any owner desires, but it is not an essential part of it. Stollard v. Nycum, 240 Ill. 472. Sometimes it may be very advisable and desirable that the clouds should be removed, and sometimes it would be unwise to invite litigation on those subjects. It is obvious here that the city of Morris never could assert the right to have an alley opened between these premises, and that the slight encroachments upon lot 11 by the owners of the property west thereof were of the most trivial character. We think it a reasonable deduction from this record that the obstacles interposed by appellant in the court below were not because his interests were not properly served by the bill, but to prevent his brother from obtaining a solicitor’s fee. He filed lengthy exceptions to the answer of appellee to his cross bill. He filed numerous exceptions to the master’s report as to the facts. He filed objections to the commissioner’s report, most of which were of a technical character. He supported these by two affidavits by himself, in which he set up the existence of various fixtures in the house and barn, such as a range, mantels, gas chandeliers, marble washbasins in the bath room, and many other like articles, and also that there was hay in the barn, which had been there for two years, and certain loose lumber on the premises, and insisted that the commissioners should have reported whether they treated these articles as real estate in valuing the premises. Appellee consented to humor appellant in these contentions, and the decree described and provided specifically for the sale of many articles which were undoubtedly a part of the real estate and of some articles which undoubtedly were not. We are of opinion that the rights and interests of all the parties were properly set forth in the hill; that the record does not disclose that any attempt was made by appellee to secure any advantage of appellant; that the case was so conducted as to entitle appellee to the allowance of a solicitor’s fee; and that he ought' not to he defeated therein by the fact that appellant chose to resurrect and remove slight clouds upon the title.

The sum allowed was large, hut the labors of appellee’s solicitor were made very much greater by the constant objections and opposition needlessly and uselessly interposed by appellant (who is himself a lawyer), and by his solicitor, and we conclude that we ought not to disturb the allowance of solicitor’s fees. There were three abstracts on different parts of the property and they were very lengthy and involved. It is not claimed that the price charged for them was unreasonable. After appellee’s solicitor had drawn and filed the bill, he delivered the abstracts to appellant’s solicitor and the latter used them in connection with the plat of the homestead property in preparing for the hearing. They were used in proving title. At the master’s sale, in the presence of all the owners, the master stated that the abstracts would be delivered to the purchaser of the property. We think it fair to assume that a person would hid more for such real estate if he knew that he was to be furnished with abstracts than if he were left to procure them himself. We think that in such a case, where the abstracts have been used by the solicitor for the opposite party in preparing his pleadings and at the trial, and have been offered for sale with the land in the presence of all the owners and without any objection by them, and where thqy presumably have been included in the accepted bid, we ought not to disturb an order requiring that they be paid for out of the money realized from the sale.

Appellee offered in evidence these three abstracts, and they were admitted over the objection and exception of appellant. They were offered to show the amount of labor expended by the solicitors in preparing to file the bill. We are of opinion that they were no more competent evidence for that purpose thau would he the printed brief and argument of a lawyer in a suit for his fees, or a house in a suit by the builder for his compensation. They did no harm, except that they greatly encumber the record. They occupy about one hundred and twenty-five pages of the record in single-spaced typewritten lines. Appellant should not have been compelled to be at the expense of bringing these abstracts to this court. We think we should not reverse for the error in admitting them, but that appellant should have relief therefrom in the judgment for costs in this court. One-third of the cost of the record will be adjudged against appellee and all other costs of this court will be adjudged against appellant.

The order is therefore affirmed.

'Affirmed.


text:
    William Leonard, et al., Appellants, v. Joseph Garland, et al., Appellees.
    Gen. No. 5273.
    1. Injunctions—what not involved in appeal from order dismissing hill. An appeal from an order dismissing a bill for an injunction does not bring up for review the propriety of the previous action of the court in denying an application for a preliminary injunction upon such bill.
    2. Injunctions—when hill properly dismissed upon denial of motion for temporary injunction. If the bill is for an injunction only, the court may properly dismiss it upon denying the injunction sought.
    Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Bichabd M. Skinneb, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    Butters & Armstrong, for appellants.
    John Garland, D. L. Dunavan, B. E. Lincoln and Charles S. Cullen, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

William Leonard and others, the appellants, owners of land in Union Drainage District No. 1 of the towns of Freedom and Ophir in LaSalle county, Illinois, filed a hill in equity against the Drainage Commissioners of said District and the Northwestern Clay Manufacturing Company, hereinafter called the company, for an injunction. The bill alleged that the improvement for which the District was organized was a tile ditch about two miles long. The specifications required the best quality of hard burned vitrified tile. The bid of the company provided for vitrified drain tile. The contract called for vitrified glazed- drain -tile of the best quality. The bill alleged that about one mile of the work was done and that the tile furnished was of a poor and inferior quality and was not vitrified tile and was not hard burned, but was uneven, cracked, broken and crooked and of insufficient strength, and would crumble and disintegrate, and that they were culls and were worthless on the market, and that there was a conspiracy between the Drainage Commissioners and the company to put upon the District, at a cost of - over $4,000, tile of but little if any value. The bill asked an injunction compelling the Drainage Commissioners to remove from the ditch all tile not in accordance with the specifications and agreement, and from placing in the ditch tile not of the kind and quality specified, and that they be ordered to so complete the work as to be in accordance with the specifications and contract, and that they be enjoined from using in the improvement any of the tile now being used that is not in accordance with the specifications and the contract, and that the commissioners be enjoined from paying the company any money whatever upon the contract for the furnishing of said tile. The bill was filed on October 20, 1908. On November 5, 1908, appellants entered a motion for a temporary injunction, and the same was set to be heard on November 14. On the latter date the Drainage Commissioners and the company filed answers in which it was averred that the tile used was hard, vitrified, drain tile, in accordance with the specifications of the contract. The conspiracy was" denied. The record recites that affidavits were also filed, and the motion for an injunction was heard and denied. No further action was taken at that term of court, and no action was taken at the January term, 1909, nor at the March term, 1909, nor at the June term, 1909, which convened on the second Monday of June, till July 7, 1909, at said June term, when on motion of the appellees, the court dismissed the bill at the complainants' costs. This is an appeal by complainants below from the decree dismissing the bill. This appeal does not bring up for review the order denying the motion for an injunction, and, if it did, the proofs upon which that motion was heard and decided are not preserved in the record. We must therefore assume that the order denying the injunction was required by the case presented upon the hearing of that motion. The bill was for an injunction only, and the court might properly have then dismissed the bill. Titus v. Mabee, 25 Ill. 232 Goddard v. C. & N. W. Ry. Co., 202 Ill. 362. That which the court could properly have done on November 14, 1908, it did not lose the power to do by its delay in entering the dismissal. As the bill was for an injunction only and the court properly denied the motion for an injunction, the decree dismissing the bill must be sustained.

The decree is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    William C. Hammer, Appellee, v. The Huber Manufacturing Company, Appellant.
    Gen. No. 5276.
    1. Trial—what conduct of counsel not cured by sustaining of objection. To sustain an objection to a question which implies that in a previous trial a verdict was rendered against the opposite party is not enough to remove the harm done as a result of the impropriety of the question.
    2. Evidence—when exclusion of competent will not reverse. The rejection of competent evidence will not reverse unless harm appears to have resulted.
    Assumpsit. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed upon remittitur.
    Opinion filed October 18, 1910.
    Henry Waterman and J. E. Boulware, for appellant.
    Forrest M. Lowes and Sturtz & Ewan, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

William G. Hammer, the appellee, is a dealer in coal at Geneseo and for many years has operated a threshing machine in Henry county during the fall. Appellant, the Huber Manufacturing Company, is an Ohio corporation, engaged in the manufacture and sale of traction engines, separators, wind stackers, and other machinery comprising a modern threshing machine outfit. It had an Illinois agency at Peoria and Charles Wagner was its manager for Illinois. Appellee claimed to have made a contract with appellant on certain machinery sold and delivered by appellant to parties living in Henry county. Appellee brought this suit against appellant on May 6, 1907, to recover said commissions. He filed the common counts and appellant filed a plea of the general issue, and there was a jury trial and a verdict for appellee for $300. Appellant • obtained a new trial, and upon the second trial appellee had a verdict for $1,450. Appellee remitted therefrom $153.38, a motion by appellant for a new trial was denied, and appellee had judgment for $1,296.62, from which defendant below appeals.

By his amended bill of particulars appellee claimed the following commissions: $425 for an engine delivered to Schuttler & Goeble, May 15, 1906, at $1,700; $75 for a boiler delivered to Hill Brothers on May 15, 1906, at $300; $30 for a second hand engine delivered to John H. Boltenhouse on May 15, 1906, at $300; $550 for a separator, self feeder and traction engine delivered to Wolfe & Vandermoon on June 15, 1906, at $2,200; $307.50 for a separator, stacker, feeder and weigher, delivered to Schuttler & Goeble, July 1, 1906, at $1,230; and $487.50 for an engine delivered to Fred Lemmert Hay 1, 1907, at $1,950. The commissions are all charged at 25%, except on the second hand engine, delivered to Boltenhouse, which is charged at 10%. The total claimed in the amended bill of particulars was $1,875.

Appellee and Wagner had a conversation on November 4, 1904, in which appellee claims the contract was made. Wagner wrote letters to appellee soon thereafter and appellant claims that those letters contained the contract. Appellee and Wagner are not agreed as to what was said in the oral conversation. The parties agree that appellee was not to be known to the general public as an agent of appellant, but that appellee was to talk in favor of appellant’s goods throughout Henry county; was to base his commendation of them upon his many years’ use of them; was to advise Wagner of all persons whom he could ascertain were thinking of buying machinery of the kind and Wagner was then to come or send other agents to see the parties and make a deal with them at such prices as they might agree with the purchaser upon, and appellee was to have commissions upon any goods those agents might so sell. So far the parties practically agree. Appellee claims that the contract was to continue till the parties chose to terminate it. Appellant claims that it was only for the one year of 1905, during which appellant did not sell and deliver any goods in Henry county. Appellee’s testimony is unsatisfactory on many points. At times he seemed to claim commissions only on goods sold and delivered to persons to whom he had talked in favor of appellant’s goods and whose desire for such goods he had communicated to appellant. At other times he gave such a version of the contract as entitled him to commissions on all goods appellant delivered in Henry county, whether he had anything to do with the sale or not. He claimed in his testimony that the commissions were due him when appellant collected its pay for the machines; and again that his commissions were due him when the money for the machines was due, whether appellant had collected it or not; and again that the commissions were due him as soon as the goods were delivered in Henry county. In the conversation on Hovember 4th, appellee expressed himself as dissatisfied with appellant’s separator, and he testified that he told Wagner he would not recommend that separator, and he claimed and exercised the right to talk and work for a separator manufactured by a rival company. Wagner testified that appellee agreed not to talk against appellant’s separator, and to work for no other company except appellant.

Appellee’s bill of particulars claimed $1,815. The verdict, $1,450, was $425 less, and it is conceded by appellee that appellant did not deliver to Shuttler & Goeble the engine which that firm obtained on May 15, 1906, but that it came from another company and appellee conceded that appellant is not liable to him for commissions thereon. The jury were warranted in finding that appellee rendered service which helped to bring about the sale of the boiler delivered to Hill Brothers on May-15, 1906. The proof shows that appellant received $292.50 therefor and the commissions thereon at 25% would be $13.12. The preponderance of the evidence is that appellee never did anything which tended to bring about the sale of the engine to Boltenhouse. There is no evidence that appellee ever assisted in making the trade whereby Wolf & Vandermoon obtained from appellant the machinery above mentioned. Appellee rendered some assistance in obtaining an order from Shuttler & Carney in January, 1905, which appellant did not accept or fill. Thereafter, Carney withdrew and Goeble took his place, and Shuttler & Goeble gave an order in December, 1905, which appellant filled in July, 1906. Hnder the proof appellee not only was not instrumental in obtaining this second order, but the proof is clear that appellee tried to prevent Shuttler & Goeble from buying that machinery from appellant and tried to induce them to give the order to a rival company. Hnder the proof we are of opinion that the jury should not have allowed appellee commissions on that sale. Appellee assisted in the giving of an order for machinery by Fred Lemmert in 1905, which appellant did not accept. After-wards appellant took another order from Lemmert in April 1907, which was filled shortly before this suit was started. Appellee did nothing towards obtaining this last order from Lemmert, but the jury were .warranted by the evidence in finding that this purchase resulted in part from appellee’s former efforts to interest Lemmert in the machinery manufactured by appellant. The proof is that appellant received $1,300 for this machinery, commissions on which at 25% would amount to $325. We are therefore of opinion that under the evidence appellee was justly entitled to receive from appellant $73.12 for commissions on the sale to the Hill Brothers and $325 for commissions on the sale to Fred Lemmert, a total of $398.12 and that the evidence did not justify the jury in finding a larger verdict. The jury were warranted in finding that the commissions agreed upon for these items were 25% and that the contract continued in force as to" work actually done by appellee for appellant till this suit was commenced. We are of opinion that the evidence would not warrant a finding that appellee was entitled to commissions upon goods sold by appellant with which appellee had nothing to do, especially in view of the fact that there is a clear preponderance of the evidence that appellee in certain instances was unfaithful to appellant and tried to prevent persons from buying goods from appellant and tried to sell them other goods instead, especially with reference to appellant’s separator.

Appellee’s counsel improperly asked a question which implied that there was a verdict against appellant at the first trial. The court sustained an objection to the question. That did not remove the evil done by the question. Still, we do not feel that the judgment should be reversed for that alone. The court sustained an objection by appellee to an offer in evidence by appellant of a contract made February 28, 1906, between the Northwest Thresher Company and appellee, wherein appellee accepted the agency of a company engaged in the manufacture of like machinery, for Geneseo, in Henry county, and the trade tributary thereto, for the season ending November 1, 1906, and agreed not to, directly or indirectly, engage in the sale of, nor take orders for, machinery of the character involved in this suit, made by other companies than said Northwest Thresher Company. We are of opinion this contract should have been admitted as tending to defeat appellee’s claim for commissions from appellant on any other goods than those which appellee actually assisted in selling. No special harm seems to have been done appellant by its rejection, because the oral proof showed that in certain instances appellee worked against appellant and for said Northwest Thresher Company, especially since we have herein rejected all claims except those where appellee rendered substantial assistance in procuring the sales.

This opinion will be lodged with the clerk and counsel notified thereof. If, within seven days, appellee remits all of the judgment, except $398.12, the judgment will be affirmed in that sum, at the costs of appellee. If such remittitur is not entered, the judgment will .be reversed and the cause ^remanded for a new trial.

Appellee having filed a remittitur herein of all the judgment, except $398.12, the judgment is affirmed in the sum of $398.12, at the costs of appellee.

Affirmed upon remittitur.


text:
    Elias V. Allen, Appellant, v. Cordelia Allen, Adm’x., et al., Appellees.
    Gen. No. 5313.
    1. Evidence—when interest does not disqualify; when disqualifies. If children of a deceased ancestor claim land in litigation as heirs at law of such ancestor, the testimony of the adverse party in his own behalf is not competent against them even though taken by the master before the death of such ancestor; but where such children claim not as heir’s but as grantees in a deed from such ancestor, such adverse party is competent.

      2. Conveyance—"burden of proof to establish nondelivery. A claim that a deed was never delivered, but, upon the other hand, was placed in escrow and wrongfully recorded must be established by a preponderance of evidence by the party making it.
    3. Liens—when reservation contained in deed enforced. If land sold upon execution has been redeemed for the benefit of the owner of the equity of redemption and upon a settlement a reconveyance is made to such owner subject to a right of user for a specified period, the valuó of such right of user will be recognized and enforced as a lien against the premises in question.
    Bill in chancery. Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed 'and remanded with directions.
    Opinion filed October 18, 1910.
    R. D. Robinson and Moreland & Moreland, for appellants.
    E. J. King and M. J. Daugherty, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Marion Allen was in possession of 80 acres of land near Maquon, in Knox county. Andrew 0. Housh, his judgment creditor, levied an execution on the interest of Marion Allen therein. The south 11 acres were set off for a homestead and the north 53 acres were bought by Housh at the execution sale. Thereafter Elias V. Allen, a brother of Marion Allen, purchased the certificate of sale from Housh for less than the face thereof, giving his notes to Housh therefor. In due time he obtained a sheriff’s deed, mortgaged the property to one Huggins, and with that money paid the notes he had given Housh. Elias Y. Allen did this to aid Marion Allen in redeeming the property. The execution sale was in 1888 and the sheriff’s deed in 1889. Thereafter Elias worked the premises for six years by arrangement with his brother, Marion. The first three years he gave his brother, Marión, a share of the crop as rent. The second three years he allowed Marion a certain sum per acre per year as rent, and applied the same upon the indebtedness Elias had paid to Housh. Thereafter Marion resumed possession of the land. In fact, Marion Allen owned only an undivided one-half of this 80 acre tract. The other undivided one-half thereof had been owned by his first wife, who had died .intestate, leaving their six children, who inherited that undivided one-half subject to Marion’s right of homestead. These six children seem to have been apprehensive that they would lose their rights in the land. On January 26, 1899, Elias Y. Allen, Marion Allen and several of his children by his first wife met in the office of E. P. Williams, an attorney at Gales-burg in said county, and the question whether Marion was still indebted to Elias upon the Housh redemption money and what should be done with the title held by Elias was the subject of discussion, and Elias executed and acknowledged a quit claim deed of said north 53 acres of said land to Marion Allen. It recited that it was given “for a valuable consideration, a portion of which is already paid, atid the remainder to be hereafter paid as hereinafter mentioned,”' and after a description of the premises, it contained the following special provision:

“Subject however to the right of the grantor to the use and occupancy of the north forty (40) acres of said fifty-three (53) acres until the 1st day of March,-1902. The use of said forty (40) acres hereby expressly reserved and retained by the grantor, as compensation for part purchase price of the land herein sold, and Marion Allen expressly agrees to pay all taxes on the forty (40) acres during said time: and in default of his doing so, Elias Y. Allen retains a lien on said premises and the right to occupy said forty (40) acres until all moneys due for taxes thereon during said three years are fully repaid to him.”

The deed was then placed in the possession of J. M. Kisley, a banker at Knoxville in said county, where it remained about six years. It was then obtained by a son of Marion Allen and kept a few months and then Marion’s second wife and 'one of his sons placed said instrument on record on January 16, 1906. On January 27, 1906, Elias Y. Allen filed a hill in equity against Marion Allen, alleging that he held the title acquired by said sheriff’s deed to secure.him for the money paid to Housh at his brother Marion’s request, and that the deed of January 26, 1899, from himself to Marion was never delivered to Marion, but was placed in the hands of Uisley in escrow to be held till Elias had been paid in full for the amount due him by Marion; that such payment had not been made and that the possession of the said deed had been fraudulently procured by Marion or some one for him and that said deed had been fraudulently recorded, and that the title had never thereby passed to Marion Allen. The bill asked that the deed be surrendered, the record thereof canceled, that an accounting be had, and that, if Marion would pay Elias the sum due Mm, the land then might be conveyed to Marion. Marion Allen answered, alleging that he owned but an undivided one-half interest originally in the land and admitted the Housh judgment, and denying substantially all the other allegations of the bill. He denied that he was indebted to Elias, and alleged that he had a right to record the deed. The cause was referred to the master to take proofs and the testimony of Elias Y. Allen was taken, but the testimony had not been completed nor reported to the court when Marion Allen died on December 5, 1907.

Marion Allen had also three children by his second wife. All his children were of age. On January 27, 1906, the same day on which Elias filed his original bill against Marion, the latter and his second wife, and Ms children, caused deeds to be prepared, which were executed that day by some of the parties and soon thereafter by the others who were resident elsewhere, and which were recorded a few months later. By those deeds the six older children conveyed their interest to their father, Marion, and Marion and his wife conveyed the farm, except eight acres in the southwest corner, to the nine children in equal parts, subject to a life estate in Marion; and Marion and wife conveyed the eight acres to a son and he conveyed the eight acres to the second wife, and she conveyed the eight acres to Marion for life. On December 30, 1907, soon after the death of Marion, certain of Ms children filed a bill against the rest of the children for a partition of the 72 acres, to which suit Elias Y. Allen was made a defendant under the charge that he claimed some kind of a lien on the premises, hut that his claim was unfounded. On March 24, 1908, in the original suit begun by Elias V. Allen, the death of Marion Allen was suggested and leave was granted to amend the bill in that case, and the bill was amended by making defendants thereto the administratrix of Marion Allen’s estate and his children. They filed another answer, in which they denied all the material allegations of Elias Y. Allen’s bill, and denied that Marion Allen was indebted to Elias Y. Allen. Elias Y. Allen demurred to the bill for partition and that demurrer was overruled. He then filed a plea of former suit pending and afterwards withdrew that plea and made no further answer in the partition suit. Thereafter, the two cases were consolidated. The master, who had taken a part of the testimony, filed a report thereof and went out of office and the cause was referred to his successor to take further testimony. He took and reported further testimony, including a deposition. The consolidated cause was heard upon those proofs. The bill of Elias Y. Allen was dismissed for want of equity, and a partition of the 72 acres among the nine children of Marion Allen was decreed. Elias Y. Allen appealed from that decree to the Supreme court and the record was transferred to this court, no freehold being involved. Allen v. Allen, 242 Ill. 510.

If the children of Marion Allen were claiming this land as his heirs at law, the testimony of Elias Y. Allen in his own behalf would not have been competent evidence against them, even though taken by the master before Marion’s death (Smith v. Billings, 177 Ill. 446), but they claimed, not as his heirs at law, hut as grantees in a deed executed by Marion Allen, and hence Elias V. Allen was a competent witness in his own behalf against them. Oswald v. Nehls, 233 Ill. 438. The oral evidence of the negotiations and transactions between the parties is unsatisfactory. Elias Y. Allen was nearly seventy years of age when he testified, and his memory was evidently much impaired and very uncertain. The children of Marion Allen who testified could give but a slight account of the conversations and dealings between Elias and Marion at which, they were present. The documentary evidence must he chiefly depended upon.

It is conceded by every one that Elias V. Allen held the title only to secure the repayment of the moneys he had advanced for Marion, with interest thereon. He had received to apply on that indebtedness, the use of the 53 acres for three years, and he was not sure whether it was at $3 or $4 per acre per year. Though the Housh judgment was $787.42, Elias purchased the certificate on ¡November 27, 1888, for $546.41, so that the rent paid a large portion of the debt. We are of opinion that the deed from Elias to Marion, executed on January 26, ' 1899, in the office of E. P. Williams, is satisfactory proof that it was then agreed between the parties that Elias should have the use and occupancy of the north 40 acres of said tract from that date until the first day of March, 1902, that is, for the three farming years of 1899, 1900 and 1901, and that that use and occupancy by Elias for those years should complete the payment of what Marion was required to pay to redeem the premises.

So far as the bill of Elias Y. Allen is based upon, the claim that the deed from Elias to Marion was never delivered, but was placed in escrow with Hisley and was wrongfully obtained from ¡Nisley and wrongfully placed on record, we are of opinion that it is not sustained. The burden of proving that allegation was upon Elias. There is no apparent preponderance of evidence that the deed was placed in escrow, but the preponderance appears to be that the deed was delivered to Marion before the parties left the office of E. P. Williams, and that a son of Marion Allen caused the deed to be placed with his own papers in ¡¡Nisley’s bank for reasons pertaining only to Marion Allen and his family.

But it does not follow that Elias should be denied all relief. The Supreme court has held (Allen v. Allen, supra) that his bill is to be regarded as a bill for an accounting and for a foreclosure of his lien upon the real estate, treating the deed to him as a mortgage to secure him. The deed back to Marion did not release that lien. The recitals therein, which we have hereinabove set out, show that the parties there agreed that what Marion had already paid by the use of the land, as already mentioned, and what he was to thereafter pay by giving Elias the use of the north 40 acres for the time therein mentioned would complete the payments of what Marion owed to Elias. It matters not whether they reached this settlement by a careful computation or merely by a proposition made on one side and accepted on the other. The fact is that they then agreed that Elias should be paid the balance due him by giving him the use and occupation of the north 40 acres from January 26, 1899, to March 1, 1902, a period of three years, one month and five days, the further provision being added that Marion should pay the taxes on the land during that period and that, if Elias was obliged to pay them, he should have a lien on the land for such taxes. The parties fixed the use of this land for that period as a compensation to Elias for what was still due him. He had not had the land nor anything else as its equivalent. We are of opinion that under that deed he has a lien upon the land for just what it was agreed he should have. The decree appealed from deprives him of that right.

As Elias V. Allen did not receive the use of the land as agreed, he should now be paid the value of said use and interest thereon, and should have a lien on the undivided half of said north forty acres therefor. The decree is therefore reversed, and the cause is remanded, with directions to the court below to hear proof and ascertain the fair cash rental value of said forty acres for the respective periods from January 26, 1899, to March 1, 1900; from March 1, 1900,. to March 1, 1901; and from March 1, 1901, to March 1, 1902; and to allow Elias V. Allen said rentals with interest on such rental value at the rate of five per cent per annum from the end of each such rental year to the entry of the decree, and to enter a decree of partition, giving Elias Y. Allen a lien upon the undivided one-half of said forty acres for the total sum of said rentals and the interest, and providing for the payment thereof from the proceeds of the sale of said undivided one-half of forty acres, if partition be not made.

Reversed and remanded with directions


text:
    Fannie T. Butters, Admx., Defendant in Error, v. Chicago, Burlington & Quincy Railway Company, Plaintiff in Error.
    Gen. No. 5321.
    1. Appeals and ebbobs—when ruling upon motion for peremptory instruction waived. The introduction of evidence ensuing the overruling of a motion for peremptory instruction waives the right to question the propriety of such ruling.
    2. Instbuctions—what essential to justify giving of peremptory. The giving of a peremptory instruction is not authorized unless there is no evidence or but a scintilla of evidence tending to prove the material allegations of the declaration.
    3. Instbuctions—use of phrase “at the time he was hilled” as applied to exercise of ordinary care. Held, in view of all of the instructions given in this case, that the use of the phrase “at the time he was killed” as applied to the exercise of ordinary care was not too restrictive.

      4. Contbibutoby negligence—driving upon tracks. Whether a person is guilty of negligence in approaching and driving upon tracks in front of a train is ordinarily a question of fact to be determined by the jury.
    5. Contbibutoby negligence—driving upon tracks. Contributory negligence cannot be imputed to a person approaching and driving upon railroad tracks for a failure to anticipate that the defendant’s servant would approach the crossing in question at a rate of speed prohibited by ordinance.
    6 Evidence—when conviction of crime competent upon question of credibility. Conviction of grand larceny being conviction of an infamous offense is competent to be shown as affecting the credibility of a witness, and by statute such witness may be compelled to testify as to whether or not he was convicted of such crime.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Henry county; the Hon. Emeby C. Gbaves, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied November 18, 1910.
    Opinion filed October 18, 1910.
    Rehearing denied November 18, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Robert O. Morse and Nicholas J. Demerath, for plaintiff in error; Chester M. Dawes and J, A, Connell, of counsel.

      E. F. Anderson, Thomas J. Welch and James H. Andrews, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

Main street in the city of Kewanee runs north and. south. The main line of the Chicago, Burlington & Quincy Railway, Company crosses it nearly at right angles, hut inclining slightly to the south as it goes west and slightly to the north as it goes east, and is on a straight line for over half a mile west, where it comes around a curve. The crossing of Main street and the railroad is in a busy part of the city. West of the street and north of the railroad is the factory and foundry of a pump company, some of the smaller buildings of which come to the railroad right of way some distance west of the street. East of Main street and immediately north of the right of way is the plant of the Kewanee Light & Power Company, whose buildings come to the right of way. East of Main street and immediately south of the railroad is the plant of the Western Tube Company, containing extensive works, in which from 500 to 600 employes work at night.

Considerable noise was caused by the electric plant and the tube works. There was an electric light at night nearly over the crossing. The crossing was protected by gates operated from a tower. An ordinance of the city limited the speed of passenger trains to ten miles per hour. Some time between midnight and one o’clock in the morning of April 30, 1902, a carriage drove south on Main street from north of the railroad. A young man and a young woman were seated on the front seat and another young man and young woman were upon the back seat. The young man on the front seat was driving. One of the two young men was Charles A. Butters. It is not now known whether he was on the front seat or the back seat, though as he worked for a livery stable it might perhaps be presumed that he ivas driving. There were four railroad tracks across the street. The first reached from the north was a switch track; the second was the west bound main track; the third was the east bound main track; and the fourth a switch track. As this carriage drove across the east bound main track it was struck by an east bound fast mail train. The four persons and the two horses were killed and the carriage was demolished. Butters was a little less than nineteen years old. He left surviving him his father, mother and two unmarried sisters. He was in good health, steadily at work, and turned all his wages over to his parents. His administratrix brought this suit against the railway company to recover damages for his death for the benefit of the next of kin. In different counts of the declaration it was charged that the train was run at a high and dangerous rate of speed; that it was run at a speed in violation of said ordinance; that no statutory signals were given; that the gates were not down as they should have been when the train was coming, and thereby plaintiff’s intestate was led to believe the crossing was safe; that the dangerous character of the crossing required that a flagman or watchman be there stationed, and none was so stationed; and that the company was guilty of negligence generally in the manner in which it propelled the train over the crossing. There was a plea of not guilty, a jury trial, a verdict and a judgment for plaintiff for $4,000 and this is a writ of error to review the judgment, sued out after the dismissal of an appeal.

Of the objections to the rulings of the court upon certain evidence, we think it only necessary to say that we regard the rulings as not erroneous and the matter as not important in view of the other testimony. It is argued that the court erred in refusing to direct a verdict for defendant at the close of plaintiff’s evidence. Defendant did not stand by that motion, but thereafter introduced testimony, and this was a waiver of the motion. Langan v. Enos Fire Escape Co., 233 Ill. 308. It is argued that the court erred in not directing a verdict for defendant at the close of all the evidence. The trial court was not authorized to grant that motion unless there was no evidence or but a scintilla of evidence tending to prove the material averments of the declaration. Libby, McNeill & Libby v. Cook, 222 Ill. 206. The negligence of defendant was clearly established. The ordinance was in evidence and the unlawful speed of the train was clearly established. A witness testified that in his judgment the train was running at from 65 to 70 miles per hour when it reached Main street. Other proof showed that the brakes were set and fire flying from them at about that time and that the train ran over half a mile before it stopped. It was about half an hour late. It carried mail only and was not scheduled to stop at Kewanee. This proof was not controverted and it established the charge of negligence in running at a rate of speed prohibited by ordinance, and might well have been held by the jury to establish the charge of running at a highly dangerous rate of speed over an important street of the city. There was evidence that no whistle was blown by this engine, and other evidence that the whistle was blown only at the curve half or three-quarters of a mile distant, and still other evidence that it was blown almost continuously from said curve to Main street. There was an apparent preponderance of evidence in favor of defendant on this subject. There was positive evidence that the bell was ringing and that it was not ringing. Manifestly, the court could not take the case from the jury on any theory of a lack of evidence to establish defendant’s negligence.

It was for the jury to say whether plaintiff’s intestate was negligent in approaching and driving on the track in front of this train. Plaintiff in error contends that the negligence of Butters is so clearly proven that no reasonable mind could find otherwise and, for that reason, the court should have directed a verdict at the close of all the proofs, and this is the material question in the case. As already shown, the jury may fairly have concluded that there was considerable noise at that crossing by reason of the adjacent plants then in operation. There was an arc light over the crossing, which would have a tendency to prevent persons on the street being as quickly conscious as otherwise of the headlight on the engine. The gates were up. Plaintiff in error contends that this fact should not be considered, in the absence of proof that it was customary to operate these gates at that time of night and that Butters knew thereof and relied thereon. Plaintiff in error induced the court to instruct the jury that “where a railroad company maintains gates at a crossing and the gates are open, it is an invitation to the public to cross and that it is safe for them to do so.” This was followed by a qualification but this qualification did not relate to the fact that it was night time nor to the question whether plaintiff in error was accustomed to operate the gates at that time in the night. With that instruction in the case given at plaintiff in error’s request, plaintiff in error can hardly be heard to say that the condition of those gates was not an invitation to these young people to drive across and information to them that it was safe to do so. A witness for defendant testified that the carriage was driven on a walk as it approached the railroad tracks from the north; that he rode up by the left side of the carriage on a bicycle and recognized the young women and talked with them, but did not know the young men; that he heard the train whistle at the curve and saw the headlight at that point when he and the carriage were on the north switch track. Some witnesses testified that this curve was half a mile west and a witness who had the best means of knowing testified that it was three-quarters of a mile west of Main street. The man on the bicycle testified that he told the young people in the carriage that the train was coming and they had better wait, and some one of them replied that they had time to get across, and he then went ahead and left them, and heard no crash, and did not know of the accident till next morning. He testified that while he was talking with them, the driver sitting on the right side in front had the lines in his right hand lying in his lap, his face turned towards the east and his left arm over the back of the seat. This witness admitted that he had since been convicted of grand larceny and served a term of imprisonment in the Reform School therefor. This was an infamous crime (People v. Russell, 245 Ill. 268; Bartholomew v. People, 104 Ill. 601), and in a civil case the witness may be compelled to testify to such conviction for the purpose of affecting his credibility, as impeaching testimony. Revised Statutes, chap. 51, sec. 1. The jury and the trial judge saw this witness and heard his testimony, and, in view of this impeaching testimony, we cannot know that they could or should have believed him. There were things in his testimony tending to discredit it. For instance, as he rode by the left hand side of this carriage, the faces of the occupants were turned towards him, that is, towards the east, and yet he testified that the headlight of this engine, half or three-quarters of a mile to the west, shone in their faces. But, if we assume that this testimony was all worthy of belief, and that the driver or Butters then saw this train at that distance away, he had a right to presume that defendant would not run its train in violation of the ordinance, and contributory negligence could not be imputed to him for a failure to anticipate that defendant would approach this crossing at a rate of speed prohibited by the ordinance. Dukeman v. C. C. C. & St. L. R. R. Co., 237 Ill. 104. If the engine was half a mile distant when this witness left the party, and it had traveled that half mile in obedience to the ordinance, it would not have reached this street till at least three minutes had passed and these young people would have been far beyond the railroad; but if the engine ran at 70 miles per hour, the time in which it covered the intervening space was less than thirty seconds. Under all this evidence we cannot say that the jury ought to have found that the deceased was not in the exercise of due care as he approached and went upon this crossing.

The second instruction given for plaintiff required of Butters the exercise of due care “at the time he was killed.” The tenth instruction contained the same language. It is argued that this was restricting the exercise of due care to the instant when the. engine struck him, whereas he was required to exercise due care as he approached and went upon the crossing. There are a few cases where language of this character has been criticized. It has, however, in effect been approved in many of the latest cases. Thus, in Krieger v. A. E. & C. R. R. Co., 242 Ill. 544, it was held that the words “at the time of the injury,” in such an instruction did not limit the requirements to the time when the plaintiff was on the track, but included the whole occurrence. In L. S. & M. S. Ry. Co. v. Johnsen, 135 Ill. 641, the plaintiff had been injured and one of the essentials to his recovery, stated in an instruction in his behalf, was “that the plaintiff was exercising due care himself at the time.” The court held that the words “at the time,” used in the instruction, referred to the whole transaction or series of circumstances, from the time plaintiff reached the tracks to the time when he was injured, leaving it to the jury to determine whether he used due care before he stepped upon the track. This language was quoted with approval in Peterson v. Chicago Consolidated Traction Co., 231 Ill. 324. Like holdings are found in Knox v. American Rolling Mill Co., 236 Ill. 437; Chicago North Shore St. Ry. Co. v. Strathmann, 213 Ill. 252; St. Louis Nat. Stock Yards v. Godfrey, 198 Ill. 288; C. & A. R. R. Co. v. Harrington, 192 Ill. 9; C. C. C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217; L. S. & M. S. Ry. Co. v. Ouska, 151 Ill. 232; McNulta v. Lockridge, 137 Ill. 270. We therefore conclude that the jury would understand that these instructions referred to the whole occurrence and to all the circumstances relating to plaintiff’s intestate riding or driving on this crossing and being killed. We cannot suppose that the jury would be so foolish as to think that the court meant that Butters must have exercised due care only at the very instant when the engine struck him and extinguished his life. Plaintiff in error complains of the refusal of instruction No. 4, requested by it, which required that Butters should have been in the exercise of due care at the time and immediately before the accident. That element was embodied in the instructions already mentioned, interpreted in the light of the foregoing decisions. Various given instructions required him to have been in the exercise of ordinary care for his own safety to entitle plaintiff to recover, and that he should have been without negligence on his part contributing to the injury. One instruction, given at the request of plaintiff in error, made it a defense if the jury believed from the evidence that plaintiff’s intestate could have avoided the injury to himself by the exercise of ordinary care on his part, and that he did not exercise such care, and placed the burden of proof on that subject on appellee. Instruction Ho. 18, as requested by defendant, was modified, but as given it contained language, requested by defendant, telling the jury that if Butters, as he approached the railroad track, did not observe all reasonable precautions to avoid injury, but drove directly on the track without taking any steps to ascertain if a train was approaching, then plaintiff could not recover, unless the servants of defendant were guilty of wilful and wanton negligence. Instruction Ho. 19, given at defendant’s request, submitted the question whether sufficient notice was given Butters to enable him to get out of the way by the exercise of ordinary care. Another instruction, given at defendant’s request, told the jury that Butters was just as much in duty bound to exercise ordinary care to look out for the approaching train and to avoid a collision with it as defendant was to look out for the team and carriage and avoid a collision with it. In another instruction, requested by plaintiff in error, the jury were told that if Butters, by the exercise of ordinary care, could have seen and heard the approaching train for a distance of a quarter of a mile before it reached the crossing, and that he did not exercise such care or paid no attention to the train, but went upon the track where the train was approaching and was then struck by the train and killed,' there could be no recovery. Other given instructions were drawn on similar lines. When all these instructions are read as a series, we are of opinion that it is impossible that the jury could have been misled by the giving of instructions Hos. 2 and 10 for plaintiff, and the refusal of Ho. 4, requested by defendant.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    The People ex rel., Appellee, v. George Garrett, Appellant.
    Gen. No. 5318.
    1. Quo warranto—what plea in justification must set up. In an action of quo warranto to determine the title to an office the defendant if he justifies must set up his title specially.
    2. Quo warranto—when plea does not show title to office of highway commissioner. A plea of justification in quo warranto does not show title if it fails to set up facts showing qualification to hold the office and compliance with the law pertaining to the manner of taking possession thereof.
    Proceeding by information. Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    C. A. McLaughlin and E. L. Moeeitt, for appellant.
    William H. Stead, Charles J. S'coeield and Saeeord & Graham, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The Attorney-General, by leave of court, filed an information against George Garrett, charging that for the space of sixty days now last past and more, in the county of Henderson, Garrett had unlawfully held and executed and still did hold and execute without any warrant of right whatsoever the office of compaissioner of highways of the town of Biggsville, in the said county of Henderson in the State of Illinois, which office said Garrett during the time aforesaid had usurped and still does usurp; and the information prayed due process of law against said Garrett, requiring him to answer by what warrant he claims to hold and execute the office and the franchise aforesaid. Garrett filed an amended plea as amended, wherein he set up various steps leading to his alleged election and qualification to said office. The Attorney-General filed a demurrer to said amended plea as amended. That demurrer was sustained and judgment of ouster was entered against Garrett, from which he prosecutes this appeal.

It is clear that in a plea in response to such an information, the defendant, if he justifies, must set out his title specially. Thus, it was said in Catlett v. People, 151 Ill. 16: “In the proceeding by information in the nature of a quo warranto the defendant must answer by a disclaimer of title, or justify by showing title. If he disclaims, the people are at once entitled to judgment. If he justifies, he must set out his title specially. He must show on the face of the plea that he has a valid title to the office. The people are not bound to show anything. Being called upon to show by what warrant he exercises the functions of the office, if he does not exhibit good authority for doing so the people are entitled to judgment of ouster.” Again, in People v. Central Union Telephone Co., 232 Ill. 260, 271, the court said: “When the people call upon one to show by what authority he exercises a license or privilege, which must emanate from the State or one of its agencies, the allegation of usurpation may be, as it was in this case, of the most general character, and the information merely calls upon the defendant to set forth particularly the grounds of his claim and the continued existence of his right. The office of an information in the nature of a quo warranto is not to tender any issue of fact, but simply to call upon the defendant, in general terms, to show by what warrant or charter the privilege claimed is held and exercised. The defendant cannot traverse an information which is of that character, and a plea of not guilty or non usurpavit is not an answer to the information. The People are not bound to show anything, and the defendant must answer by disclaimer or by justifying, and if he justifies he must set out his title, particularly showing by what right he exercises and enjoys the license or privilege. The sole purpose of the information is to require the defendant to show by what warrant he is holding and exercising the license, privilege or franchise in question, and it is sufficient to allege, generally, that he is holding and exercising the same without lawful authority.” The necessity that the defendant should show his qualification for the office is thus stated in 32 Cyc. 1454: “Upon an information to oust the occupant of an office defendant may disclaim holding the office; but if he does not, he must justify by setting out in his plea all the facts necessary to establish a lawful right to the office. The plea should show expressly that defendant had all the qualifications necessary to the enjoyment of the office, and in case a continued usurpation is alleged should set out the continuance as well as the original existence of such qualifications; and it should appear that defendant accepted the office, and qualified by taking the proper oath and filing bond, or otherwise complied with the law’s requirements.” Did this amended plea as amended comply with these rules ?

The first three sections of article 9 of chapter 139, entitled “Township Organization,” are as follows:

“1. 3STo person shall be eligible to any town office unless he shall he a legal voter, and have been one year a resident of such town.

“2. Every person elected or appointed to the office of superintendent, town clerk, assessor, commissioner of highways or collector, before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe, before some justice of the peace or town clerk, the oath or affirmation of office prescribed by the constitution, which shall, within eight days thereafter, be filed in the office of the town clerk.

“3. If any person elected or appointed to either of the offices above enumerated shall neglect to take and subscribe such oath, and cause the' certificate to be filed as above required, such neglect shall be deemed a refusal to serve.”

The amended plea as amended did not contain any averment that appellant was eligible to the office of commissioner of highways of said town, nor did it state any facts which would show that he was eligible to hold that office. It contained no averment that he had been a resident of that town for one year. That appellant was required to show his qualification to hold the office is laid down in the foregoing quotation from 32 Cyc. 1,454, and is plainly held in Markiewicz v. People, 126 Ill. App. 203. In Massey v. People, 201 Ill. 409, the plea there under consideration alleged that the defendant possessed all the legal qualifications for alderman, and it was implied that this was a sufficient allegation of qualification where the plea was questioned only by a general demurrer, but it was also implied that if it had been questioned by a special demurrer, his legal qualifications must have been particularly shown. It is true that in People v. Heidelberg Garden Co., 233 Ill. 290, there is a single sentence based on Attorney-General v. McIvor, 58 Mich. 516, which suggests that the qualifications need not be alleged, but this seems to have been by way of illustration only, and seems not to be in harmony with the Catlett case, supra, and the Central Union Telephone Co. case, supra, and with other cases generally in this state. If appellant had stated in general terms that he possessed the qualifications which entitled him to hold the office, it may well be that the sufficiency of that allegation could not be questioned by general demurrer, but that a special demurrer would be essential to compel him to set out the particulars of his possession of the statutory qualifications for the office; but where, as here, there is an entire absence of any averment that he was qualified to hold the office, we are of opinion that he has not shown title in himself, and that a judgment of ouster properly followed.

He alleged that he took and subscribed an oath of office, and generally that allegation is sufficient when questioned only by a general demurrer. The statute under consideration further required that within eight days after he took and subscribed the oath of office he should cause the same to be filed in the office of the town clerk and that his neglect to do so should be deemed a refusal to serve. The amended plea as amended contained no averment that appellant had caused the oath to be filed in the office of the town clerk at any time, nor that he had done so within eight days after the oath was taken and subscribed. It may well be doubted whether in construing this plea most strongly against the pleader, it should not be assumed that he had failed to comply with this provision and had thereby refused to serve. But we prefer to place our judgment upon our conclusion that the plea is fatally defective 'in not alleging either specifically or in general terms that he possessed the statutory qualifications for the office. It is argued that the amended plea as amended is defective in various other material matters, hut if we are right in the conclusion above expressed, it is unnecessary to extend this opinion by a discussion of those supposed defects.

The judgment is affirmed.

Affirmed.