text:
    John Meredith, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,052.
    1. Transcript of record-what not competent to support or contradict. Affidavits will not be received in the Appellate Court either to contradict or to support a record certified from the court below.
    2. Appears and errors-what injunctional order supportive of appeal. An order for an injunction indorsed by the judge upon the bill, made in term time, is appealable, notwithstanding the failure or delay of the clerk to make entry thereof into the regular book for the entry of such orders.
    3. Injunctions-what not essential to right of appeal from temporary injunctional order. A motion to dissolve made in the lower court is not essential to the right to appeal from an order granting an injunction.
    4. Injunctions-when remedy at law exists. An injunction should not be awarded when an adequate remedy at law exists, as, for instance, when the relief sought is in effect the trial of the right to personal property.
    Bill in equity. Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed.
    Opinion filed August 10, 1908.
    Hopkins, Peffers & Hopkins, for appellant.
    A. C. Little and Murphy & Alschuler, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On April 8, 1908, appellee filed a bill in equity against Bittenhouse & Embree Company, the Aurora, Elgin & Chicago Bailway Company, and the Illinois & Fox Biver Central Bailway Company, and upon said bill, without notice, had an order for an injunction, and an injunction against appellant, restraining it from removing, using, selling, encumbering, etc., certain railroad iron or steel, consisting of ties, rails, spikes and fishplates. On May 7, 1908, appellant filed with the clerk of said court a bond for an appeal from said injunction order, which bond was approved by the clerk of the court. A transcript of the record was filed in this court while our April term was still in session. Appellee appeared and moved to dismiss the appeal. That motion was taken with the case. The case was submitted upon briefs filed by each party and was taken at that term. Section 123 of the Practice Act of 1907 allows such an appeal from an order granting1: an injunction, and requires this court to docket the case at once and to give it precedence over other cases in this court.

The motion by appellee to dismiss the appeal is based upon the alleged fact that the order granting the injunction was not an order of the court, but an order of the judge, and it is claimed that no appeal lies from such an order. The original transcript filed herein and certified by the clerk to be “a true, correct and complete transcript of the record in said court,” etc., recites that on April 8, 1908, “one of the days of the March A. D. 1908 term of said court, the following among other proceedings were had and entered of record in said court,” and then sets out the order for an injunction. Appellee obtained leave to file an amended record certified in the same manner by the clerk of the court, which shows such order for an injunction indorsed upon the bill of complaint, and does hot show any. other order for the injunction. Appellee also filed, in support of its motion to dismiss, the affidavit of the clerk of the court below to tlie effect that said order was attached to the bill or complaint, and that when said clerk filed said bill he copied said order into a minute book kept by him, “which minute book was not a book of judgments, orders or decrees, either interlocutory or final, of said city court,” and that he so copied said order so that he would have a record of the same in case the bill of complaint was lost or mislaid; that neither the judge of the court nor the court itself ordered him to make said copy in said minute book, and that the order which he inserted in the original transcript he took from said minute book, and that there was no other order for said injunction. Appellant thereupon filed an additional record, showing an order of said court in 1892, establishing the terms of said city court and fixing the fourth Monday of March for the first day of the March term thereof. Appellant also filed a certified copy of entries in the judge’s docket of said court, showing that in said court at said March term, 1908, the trial of a certain cause by jury began on April 8, and continued on April 9, 10, 11 and 13. Accompanying this was the affidavit of said clerk showing that, on each of said days, court was in open session and hearing said jury cause from 10 a. m. to about 4:30 o ’clock p. m. Affidavits cannot be received in this court either to contradict or support the record certified to us from the court below. Each party has resorted to such affidavits, but we fail to see that the affidavits materially change the situation disclosed by the several certified records filed here. It does not lie with the clerk to say that a minute book kept by him in his office, in which he records orders of court and from which he transcribes such orders into a record certified by him to be true, correct and complete, is not a book of judgments, orders and decrees of said city court, and that he kept such minute book merely for his own convenience. The cases relied upon by appellee were where- a judge made an order in vacation, granting an injunction, and it was held that the statute did not authorize an appeal from an order made by a judge in vacation. This order was made in term time and should have been entered by the cleric upon the record of the court. The statute gives an appeal from orders in term time granting an injunction, and the right to an appeal cannot be defeated by the act of the clerk in copying the order into a minute book, instead of into what he regarded as the regular book for the entry of such orders. Nor can the right of appeal be defeated by the failure or delay of the clerk in copying such order into the records of the court, as held in Schlesinger v. Allen, 69 Ill. App. 137, and Smith v. Nelson, 131 Ill. App. 145. This order was made on April 8, 1908. The supplemental record filed here shows that on that day the city court was duly in session holding the March term and trying a cause by jury. There is nothing to show that this order was not made between the hour of convening and the hour of adjourning of court on that day. The point urged by appellee that appellant should have moved to dissolve the injunction is decided contrary to that contention in Henderson v. Flanagan, 75 Ill. App. 283. The motion to dismiss the appeal is denied.

The meritorious question is whether the allegations of the bill justified the injunction against appellant. The record shows that before this appeal was perfected by filing the bond with the clerk, the Bittern house & Embree Company had demurred to the bill of - complaint and that demurrer had been sustained and as to that company the injunction had been dissolved and the bill dismissed and Meredith had prayed an appeal to this court, which his counsel say will be before this court at the next term. We therefore consider it our duty to refrain as far as possible from discussing the equities of the case as between Meredith and thó defendants other than appellant. The bill alleges that one S. W. Jacobs, who is not made a party to this suit, purchased certain railroad iron of the Bittenhouse & Embree Company; that appellee guaranteed that Jacobs would pay therefor; that the Bittenhouse <& Embree Company shipped and delivered said railroad iron to the Illinois & Fox Biver Central Bailway Company, at Yorkville, in Kendall county, by direction of Jacobs, but that said last mentioned company never owned said railroad iron; that Jacobs transferred said railroad iron to appellee because of his guaranty of the purchase price; that appellee afterwards gave the Bittenhouse & Embree Company his judgment note for the purchase price of said railroad iron; that said Bittenhouse & Embree Company entered judgment by confession against appellee upon said judgment note in Kane county and thereby acquired a lien upon real estate owned by appellee in Kane county worth far more than the amount of said judgment; that afterwards the Bitten-house & Embree Company sued the Illinois & Fox Biver Central Bailway Company in the Municipal Court of Chicago for the purchase price of said iron and recovered a judgment against it therefor and sued out an execution to the sheriff of Kendall county and levied the same upon said railroad iron, so acquired by appellee from Jacobs, and also upon other railroad iron in Kendall county owned by appellee; that the sheriff advertised all said iron for sale on said execution, and sold the same at sheriff’s sale to the Bittenhouse & Embree Company; that afterwards the Bittenhouse & Embree Company, by some arrangement between it and appellant, the nature of which is unknown to appellee, transferred said railroad iron, or a large part thereof, to appellant, and appellant had removed about 5,000 iron ties from Yorkville to the city of Aurora and had possession of the same; and that when said railroad iron was transferred to appellant the latter knew that it belonged to appellee. The bill asked an accounting between appellee and the Bittenhouse & Embree Company of the amount due on said judgment and of the amount of damages that appellee had sustained by the wrongful sale of his property, and offered to pay whatever might be due the Bittenhouse & Embree Company after deducting such damages. There was no prayer for any relief against appellant other than the injunction, except the general prayer for other and further relief. The prayer for an accounting between appellee and the Bittenhouse & Embree Company appeared to expect that appellee should be allowed damages against the Bittenhouse & Embree Company for selling appellee’s property to appellant. It is not charged that appellant was connected with any of the transactions between appellee and the other two defendants. It is not charged that appellant conspired with the other defendants to defraud appellee or did any unlawful act. The language of the bill is that the Bittenhouse & Embree Company “transferred” this railroad iron to appellant, and it must be assumed against the pleader that this was a sale, and appellee’s brief calls it a sale by the Bittenhouse & Embree Company to appellant. It must be assumed that appellant paid full value therefor. The only allegations against appellant in this bill are that by virtue of the various dealings set up in the bill, appellee became the owner of this railroad iron, and that after the Bitten-house & Embree Company became invested with the apparent title thereto by virtue of the sheriff’s sale, appellant bought said railroad iron or a part of it from the Bittenhouse & Embree Company with knowledge that appellee was the true owner.

We are of opinion that appellee had several complete remedies at law as against appellant. The only case stated against appellant in the bill is that it bought this railroad iron from another party when it knew that appellee owned it. Under chapter 140a of the Bevised Statutes relating to the trial of the right of property, appellee without giving any bond could have served a notice in writing upon the sheriff of Kendall county that the property upon which said sheriff had levied said execution against the Illinois & Fox River Central Railway Company was his property, instead of the property of the defendant in execution, and that he intended to prosecute his claim. Thereupon he would have obtained a trial of the right of property in the County Court, and if he proved that it was his property he would have had a judgment for the possession thereof. This would have been an adequate and complete remedy, so far as the title and possession of this property is concerned. He could have brought an action of replevin against the sheriff and thereby obtained possession of the property, and a judgment that he was the owner thereof, upon proving the case stated in the bill. Thompson v. Vernay, 106 Ill. App. 182. He could have brought an action against the sheriff in trespass for levying upon property not subject to the execution. We see no reason why under the facts stated in the bill he could not have brought an action of replevin against the Bittenhouse & Embree Company, after it bought the property at sheriff’s sale, nor why he could not have brought an action of replevin against appellant after it purchased the property from the Bittenhouse & Embree Company. Other legal remedies seem to us to be within reach of appellee, if he is the real owner of this property, and if appellant acquired the possession thereof from the Bittenhouse & Embree Company with actual knowledge that appellee was the owner thereof. It is familiar law that a party who has a complete remedy at law will not be permitted to resort to a court of equity for the relief which a court of law could give him. We° are therefore of opinion that it was error to award this injunction against appellant.

The'order is therefore reversed.

Reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    William N. Reynolds, Appellant, v. Austin Phillips, Appellee.
    1. Amendments and jeofails—when granting leave to amend after hearing, not ground for reversal. It is a matter resting within the discretion of the chancellor to permit an amendment of a cross-bill after the hearing so that the same will conform to the findings of fact by the chancellor.
    2. Intebest—when allowance of, appropriate. It is proper, where a settlement of accounts has been arrived at, to allow interest from the date of such settlement.
    Bill in equity. Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Stevens & Horton and Lucien Gray, for appellant.
    Kinsey Thomas, H. M. Waggoner and Chipereield & Chipereield, for appellee.
   Per Curiam.

This is a bill in equity by appellee against appellant to set aside an alleged written contract of settlement between them, and for an accounting.

The bill alleges, in substance, that on about April 1,1899, the parties entered into a verbal agreement for the purpose of buying and trading in real estate and personal property, the losses and profits to be shared equally; that thereafter a number of transactions were had under said agreement, whereby profits had accrued ; that the accounts of said partnership were kept by the defendant who had failed and refused to inform the complainant of the true profits but with the intent to deceive him had misinformed him with reference to the amount paid for the property purchased by them, and the prices received for the same; that the defendant had drawn from the partnership moneys greatly in excess of the amount to which he was entitled ; that on April 12, 1904, the defendant falsely represented to the complainant that he, the complainant, had received all the money or other property then due him excepting a joint interest in certain property in Canton and Peoria; and that he, the defendant, had fully accounted to the complainant for all of said partnership transactions; that the complainant, in ignorance of the facts, and believing and relying upon the statement of the defendant, entered into a written contract of settlement which recited the joint ownership of the Peoria and Canton property, and that all other matters between them to date were fully and completely settled; that said representations of the defendant were untrue and well known to the defendant to be so, and that said contract was a fraud upon the rights of complainant.

The bill prays for an accounting and for the surrender and cancellation of the contract aforesaid and for a decree against the defendant for whatever should appear to be due from him upon an accounting. The answer of the defendant denies the material allegations of the bill and denies that the complainant ever had any interest in any of the transactions mentioned in the bill. The defendant also filed a cross-bill asking that the Canton and Peoria property mentioned in the contract of settlement be sold and the proceeds divided between the parties. The complainant answered the cross-bill admitting that the interests of the parties in the property in question were as therein stated.

Upon a hearing by the chancellor of exceptions of the respective parties to the report of the master, the complainant withdrew his answer to the cross-bill and disclaimed any interest in the Peoria and Canton property mentioned in the contract of settlement. A decree was then entered, dismissing the cross-bill, setting-aside the contract of settlement, and directing the defendant to pay to the complainant the sum of $3,538 with interest thereon from April 12, 1904. To reverse such decree this appeal is prosecuted by the defendant.

Upon the issues of fact involved the chancellor' reached the following conclusions: That about the year 1899, appellant and appellee entered into a verbal partnership agreement to trade in real and personal property; that by the terms of such agreement appellant was to furnish the necessary money and appellee was to pay interest upon one-half of the same, the profits and losses to be equally divided between them; that pursuant to said agreement, they thereafter purchased certain land in Audrian county, Missouri, for $6,700, which land appellant afterwards sold at a profit of $6,700; that pursuant to said agreement they also purchased certain real estate in or near Beardstown, Ulinois, for $2,000, which was afterwards sold at a profit of $2,500; that the proceeds of such sales were received by appellant and out of the same appellee has already received $1,112, leaving appellant liable to account to him for $3,538; that the partnership arrangement continued until about April 12, 1904, when appellee demanded from appellant the balance of his said share of the profits; that the appellant although familiar with the true state of the account between them, concealed the same from appellee, and on April 12, 1904, represented to him that he had received all that was due him, with the exception of a joint interest in certain property in Canton and Peoria, Illinois, and further that he had fully accounted to appellee for his one-half of the profits arising from each and every of said partnership transactions; that he then prepared and procured appellee to execute a contract in writing’, reciting that the parties then owned jointly the Peoria and Canton property and that said contract was a full and complete statement of all other matters between them to date and that all former contracts between them were cancelled. The decree further finds that said agreement was fraudulently procured in the manner and under the circumstances averred in the bill, and to be a fraud upon the rights of appellee; that the Peoria property for which partition was asked in the cross-bill was not acquired by appellant in any of the partnership transactions aforesaid, but that the same was the property of appellant individually and that appellee was in no way interested therein; that having prior to the filing of the original bill quit-claimed to one Seneker all his interest in the Canton property appellee had no interest therein; that the court had no power to determine the respective interests of appellant and Seneker in said property for want of jurisdiction over the person of Seneker; and that from the evidence it was impossible to determine what sums, if any, appellant was entitled to be allowed as interest upon money advanced by him in connection with the said partnership transactions.

It is not denied by appellant that he and appellee were engaged in a number of ventures in which they were to share the losses or profits equally. There were, however, a number of them conducted by appellant subsequent to April 1, 1899, in which appellee p.1 aim a to have been interested as a partner, but which appellant contends were his individual ventures. The evidence as to them is exceedingly voluminous, irreconcilable and conflicting. To attempt to rehearse and discuss the same in detail would unduly extend the limits of this opinion. It will suffice to say that after a careful perusal of the record, we are of the opinion that the foregoing conclnsions of the chancellor were not unwarranted by the evidence.

It is insisted that it was error to permit appellee upon the hearing to amend his answer to the cross-bill so that the same would conform to the facts as found by the chancellor. The matter rested within the sound discretion of the chancellor and we cannot say that such discretion was abused.

The chancellor, under the circumstances, properly allowed legal interest upon the balance found by the decree to have been due to appellee from the day of the alleged settlement. Scroggs v. Cunningham, 81 Ill. 110; Robbins v. Laswell, 58 Ill. 203; Derby v. Gage, 38 Ill. 27.

We find that neither of the cross-errors was well assigned.

The decree of the Circuit Court will be affirmed.

Affirmed.


text:
    John J. Hanks, Appellee, v. Catherine E. Miller et al., Appellants.
    Appeals and errors—what essential to preserve questions of law for review. In order to preserve for review the question as to the propriety of the court’s action in overruling a motion to vacate a sheriff’s sale, etc., it is essential that the motion, the ruling thereon and an exception, be preserved by bill of exceptions; it is not sufficient that the clerk recite the same in his transcript.
    Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Jack & Deck, for appellants.
    Redmon & Hogan and Whitley & Fitzgerald, for appellee.
   Per Curiam.

The Circuit Court entered judgment overruling a motion by appellants to quash and vacate a sale by the sheriff of certain personal property under an execution upon a judgment against appellants and in favor of appellee, and to re-tax the costs allowed said sheriff for expenses in caring for the property prior to the sale. This appeal is prosecuted from such order.

While the transcript of the record prepared by the clerk recites that the motion in question was made, the ruling and judgment of the court thereon and the exceptions of appellants to such rulings are not embodied in a bill of exceptions signed and sealed by the judge as is required by law. People v. Drain. Com., 156 Ill. 614.

We are therefore precluded from considering the questions raised by the assignments of error, and must presume that the judgment was properly entered.

Affirmed.


text:
    Elizabeth Nees et al., Appellants, v. James S. Dumbauld, Appellee.
    Judgment by confession—when should he opened up. On motions to set aside judgments by confession, the court exercises an equitable jurisdiction, and if an equitable reason appears for the opening up of the judgment, the motion should be allowed.
    Judgment by confession. Appeal from the Circuit Court of Adams county; the Hon. Albert Akebs, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded with directions.
    Opinion filed April 21, 1908.
    Statement by the Court. On January 3, 1905, in the Circuit Court of Adams county, appellee took judgment by confession against appellants in the sum of $849.63, including $75 attorney fees allowed by virtue of the terms of the warrant of attorney accompanying the note of appellants given by them to William R. White on October 14, 1903, and due in nine months from its date.
    Afterwards a motion was made by appellants to vacate and set aside the said judgment, for a stay of proceedings pending a trial of the issues and for leave to plead to the merits. On April 15, 1905, and of the March term, 1905, of said court, such motion to set aside and for leave to plead was denied and an order was made by the court directing the sheriff to proceed in said cause and levy execution. Exceptions were duly taken to the action of the court in this respect and this appeal followed.
    A hearing of said motion was had upon affidavits.
    Appellants presented the affidavit of Elizabeth Nees charging appellee with fraud and collusion in company with one William R. White, in procuring from her the note sued on, and the affidavits of J. W. Dodd, Fred R. Coates, Clara Nees and Bose Fernandes in corroboration of the affidavit of Elizabeth Nees. ■
    Appellee offered upon the hearing of said motion the affidavit of appellee, Dumbauld, and William R. White, which disputed the affidavits of Nees, Dodd, Coates, Clara Nees, and Fernandes in most, if- not all, of the material allegations therein made.
    Albert Salzenstein and Davis McKeown, for appellants; Joseph N. Carter, of counsel.
    Carl E. Epler, for appellee; Vandeventer & Woods, of counsel.
   Per Curiam.

Upon a rehearing allowed in this case wa are of the opinion that, upon the showing made in the affidavits, the order of the Circuit Court refusing to allow appellants to plead should be reversed and the appellants allowed to plead to the merits. Under the decisions in our state the doctrine has become firmly established that on motions to set aside judgments by confession the court exercises an equitable jurisdiction. In Rising v. Brainard, 36 Ill. 79, the court say: “The question properly before the court was not whether the judgment should be vacated for error of law, but whether in the exercise of its equitable jurisdiction, there was any equitable reason for opening the judgment.”

This statement of law was affirmed in Knox et al. v. Winsted Savings Bank, 57 Ill. 331, and in Mumford v. Tolman, 157 Ill. 258.

The order of the trial court is reversed and the cause remanded with directions to allow the judgment already entered to stand as security for appellee’s claim, if any is recovered; that action under the execution be stayed until the cause has been tried, and that appellants be allowed to plead to the merits.

Reversed and remanded with directions.


text:
      Commissioners of Highways of Town of Scott et al., Appellees, v. Commissioners of Highways of Town of Sangamon, Appellants.

    1. Mandamus-when question as to proper party to institute, waived. By failing to abide by a demurrer interposed, the defendants in a petition for mandamus thereby waive the question as to the propriety of the institution of the action by the party appearing as petitioner.
    2. Mandamus-what not defense to proceedings to compel payment of damages awarded upon laying out of road. In such a proceeding the regularity of the proceedings under which damages accruing to the several owners by reason of laying out the road, were assessed, cannot be questioned.
    3. Mandamus-when answer properly stricken. An answer filed by an individual commissioner appointed after the official answer of the commissioners has been interposed, is properly stricken from the files, as the proceeding is against the official body and not against the individuals composing that body.

      4. Pleading—when demurrer will not he carried hack. A demurrer will not be carried back to the pleading of the adverse party to which a demurrer has already been overruled.
    5. Damages—how may he assessed upon laying out of road. Upon laying out a road damages to several owners of a single tract of land may properly be assessed in gross, if the several owners so agree and request.
    Mandamus. Appeal from the Circuit Court of Piatt' county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Herrick & Herrick and Reed & Reed, for appellants.
    Ray & Dobbins and A. C. Edie, for appellees.
   Per Curiam.

This is a proceeding in mandamus instituted by the Commissioners of Highways of Scott and Mahomet townships in the county of Champaign, in the name of said towns, to compel the commissioners of highways of Sangamon township in Piatt county, in the event that they have funds on hand out of which to pay certain damages allowed for the laying out of a highway, to pay the same, and in the event that they have not sufficient funds on hand, to pay said damages, to draw orders therefor upon their treasurer, payable only out of the taxes to be levied for such road, and to proceed with all due diligence to do all acts and things necessary and lawful to be done for the speedy opening of said road for public travel. Upon a hearing before the.court without a jury a peremptory writ of mandamus was awarded in accordance with the prayer of the petition and this appeal followed.

The petition alleges that on September 17, 1906, the commissioners of highways of the towns of Scott and Mahomet in Champaign county and of the town of Sangamon in Piatt county, acting as a joint board, entered an order laying out a public highway along the boundary line between said towns, which order, containing all necessary recitals, including the settlement and assessment of damages for land to be taken, is set forth in full. The petition further alleges that on September 29, 1906, said joint board of commissioners divided the expenses and damages incident to establishing said highway, equally between said towns, one-third to each, and that an agreement to that effect was signed by all of the commissioners of said towns except Hiram Artman, commissioner of the town of Sangamon, who refused to sign the same; that a written agreement was then entered into allotting to each of said towns the part of said road each should open and keep in repair, which agreement was signed by all of said commissioners, except said Artman; that on October 20,1906, said joint board of commissioners divided the total amount of damages allowed to the several landowners into three groups of equal amount, one of said groups to be paid by each town, and passed a resolution requiring the several boards of commissioners to draw orders on their treasurer for one-third of said damages so allowed, payable out of the tax to be levied for such road, and that said Artman and A. J. Pike, commissioners of said town of Sangamon voted against said resolution; that J. C. Furnish, one of the commissioners of said town of Sangamon, was ready and willing to draw said orders and petitioners demanded of said Artman and Pike that they join with said Furnish in drawing orders in accordance with said resolution but that they refused and still refuse so to -do; that prior to the date of said order laying out said road, the commissioners of the town of Sangamon had made their tax levy, but did not include therein any sum for damages allowed on account of the laying out of said highway, and that upon the filing of said order laying out said road a contingency arose whereby it became the duty of said commissioners to make an additional levy of not to exceed 40 cents on the $100 and that said commissioners failed to perform their duty in that regard; that said commissioners of the town of Sangamon claim that there are not sufficient funds on hand to pay said damages; that said commissioners for the last four years preceding 1906, in each year, levied $700 for laying out, widening, altering or vacating roads and for ditching and draining roads; that only $1,000 of the $2,800 so raised has been used by said commissioners for the purposes for which the same was levied, and that they have placed the unexpended balance of said funds in the general fund.

To this petition, the respondents, Artma.n and Pike, filed their answer in which they deny the allegations of the petition and the truth of the recitals in the order laying out the said road, and allege that in the matter of condemning the right of way of said road over the lands belonging to the heirs of Alvin Caldwell, Sr., deceased, there were fatal irregularities in this, that the conservator of Alvin Caldwell, Jr., a lunatic, who had a life estate in a portion of said lands, had not been served with process of summons, and that said conservator had signed an agreement without authority of law whereby the damages accruing to the said Alvin Caldwell, Jr., and to Grace and Laura Caldwell, the owners of the fee, and to Mary Caldwell, a doweress, were assessed jointly. To this answer the petitioners filed their replication averring service of summons upon the conservator of the lunatic, the entering of a judgment by the justice of the peace, the appeal of the joint board of commissioners from said judgment to the Circuit Court of Piatt county, the entry of judgment in said Circuit Court, and that no appeal had been prayed therefrom, nor any direct proceeding instituted attacking said judgment.

Thereafter, at the next term of the Circuit Court the respondent Pike filed his plea averring that since the last adjournment of said court his term of office as commissioner had expired by law, and that one Harry Clark had been duly elected and qualified as his successor. A demurrer to this plea interposed by petitioner was sustained by the court, and leave was given to make said Clark a party defendant. Clark thereafter filed his answer denying the allegations of the petition and alleging that the suit could not be maintained by petitioners; that the petition did not disclose to whom the orders to be issued should be given, nor the several amounts thereof; and that the suit was not authorized by the electors of the towns of Scott and Mahomet. The answer of Clark was on motion of petitioners stricken from the files.

A demurrer interposed by respondent Artman to the replication was on motion of petitioners carried back to certain portions of the answer filed by respondents and sustained thereto, but was overruled as to the replication, and thereupon respondents elected to abide by their answer and by their demurrer to the replication. Upon the hearing then had before the court a peremptory writ of mandamus was awarded as heretofore stated.

It is first urged on behalf of appellants that the proceedings should have been instituted in the name of the People upon the relation of some person and not in the name of the towns of Scott and Mahomet. As appellants failed to abide by their demurrer to the petition, but answered the same, they must be held to have waived the question. Appellants, evidently anticipating that their action in that regard might be deemed a waiver, insist that their demurrer to the replication should have been carried back to the petition. It is a general rule of pleading that a demurrer will be carried back and sustained to the first faulty pleading in the line of the pleading demurred to, but one of the exceptions to this rule is that a demurrer will not be carried back to.a pleading of the adverse party to which a demurrer had already been overruled. Shearns v. Cope, 109 Ill. 340. In City of Chicago v. The People, 210 Ill. 84, which was a proceeding in mandamus, the respondents answered the petition after their demurrer thereto had been overruled. The relator replied to the answer and respondents demurred to the replications. It was held that the demurrer to the replications could not be carried beyond the answer. Appellants having answered the petition after demurrer thereto was overruled, precluded the demurrer to the replication from being carried back to the petition.

There is nothing in the record to show that this suit was instituted without the authority of the electors of the towns of Scott and Mahomet, if such authority was necessary, and the question is, therefore, not properly presented for our consideration and determination. Town of Big Grove v. Town of Fox, 89 Ill. App. 84.

Alvin Caldwell, Jr., a lunatic, who had a life estate in a portion of the lands taken for right of way for the road in question, having died before the petition for mandamus was filed, the questions involving his interest therein and the authority of his conservator to enter into an agreement that the damages accruing to the several owners might be assessed jointly, have become purely academic and are not necessary to be determined.

Some of the questions raised by appellants involve the regularity of the proceedings under which damages accruing to the several owners by reason of laying out the road were assessed. These proceedings cannot be attacked collaterally in this suit. The respondents as commissioners of the town of Sangamon, together with the commissioners of Scott and Mahomet townships, acted jointly in prosecuting the proceedings which resulted in laying out the road and assessing the damages in question, and they are thereby estopped from setting up the irregularities complained of. Furthermore, we have no doubt but that the damages accruing to several owners of a single tract of land may properly be assessed in gross, if the said several owners so agree and request.

It is further urged that the court erred in striking the answer of the respondent Clark from the files. This proceeding is to be treated as a proceeding against the commissioners of the town of Sangamon and not against the said commissioners individually. In Sheaff v. The People, 87 Ill. 189, two of the individuals named as respondents in an action in mandamus had, during the pendency of the proceedings, ceased to be commissioners • and two others had become their successors, and, thereupon, leave was asked and refused to amend the answer showing such change in the commissioners, and it was said: ‘ ‘ The duty, the performance of which is sought to be enforced, rests upon no particular set of commissioners, but is obligatory upon such commissioners as a body, without regard to the individuals who compose that body. The naming of the individual commissioners in the petition was entirely surplusage. The whole proceeding might well be against the commissioners of highways of the town, simply, by that name alone, the duty being a corporate duty; and we regard any change of the individual commissioners which took place, and the refusal of the court to pay any regard thereto, as forming no ground of error.” Clark was merely the successor of Pike, the former commissioner, who had joined in answering the petition, and such answer was the answer of the commissioners of highways of the town of Sangamon as a body, and the answer filed by Clark, as an individual, was, therefore, not improperly stricken from the files.

What we have heretofore said sufficiently answers the objections urged to the rulings of the court in holding and refusing propositions of law submitted by the respective parties. The form of the writ here awarded' was approved in Commissioners of Highways v. Jackson, 165 Ill. 17. There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


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    The People, Defendant in Error, v. Louis Johnson, Plaintiff in Error.
    Appeals and erbobs—when freehold involved. A freehold is involved in a suit begun in a court of record to recover a penalty for obstructing a public highway where it is necessary to determine whether the public has a perpetual easement in said highway.
    Criminal prosecution for obstructing highway. Error to the Circuit Court of Christian county; the Hon. Feed C. Hill, Judge, presiding.
    Heard in this court at the May term, 1908.
    Transferred to Supreme Court.
    Opinion filed June 19, 1908.
    R. C. Neff, J. W. & W. B. McBride and Hogan & Wallace for defendant in error.
    F. P. Drennan and Provine & Provine, for plaintiff in error.
   Per Curiam.

Louis Johnson was indicted in the Circuit Court of Christian county under section 221 of chapter 38 of the Criminal Code, charged with having obstructed a public street. Johnson was convicted and fined and this appeal followed. The entire controversy in this case relates to the right of plaintiff in error to take and retain as owner in fee the exclusive possession of a strip of ground sixty feet wide and three hundred feet long adjoining block two of Johnson’s addition to the village of Morrisonville on the north and extending the whole length of said block.

It is claimed by defendant in error that said strip of ground was dedicated by one J. L. D. Morrison in 1886 as a public street in Johnson’s addition to said village and that it had been accepted by the proper authorities as a street and used as such by the public.

Plaintiff in error claims to- be the owner in fee of said strip of ground by virtue of a deed made in 1907 by the heirs of said J. L. D. Morrison to plaintiff in error.

Under such condition a freehold is involved and this court is without jurisdiction. Town of Audubon v. Hand, 223 Ill. 369; Taylor v. Taylor, 223 Ill. 425. In the former case the court said: “This court has repeatedly held that in suits begun in a court of record to recover a penalty for obstructing a public highway it is necessary to determine whether the public has a perpetual easemént in said highway and that a freehold is therefore involved.”

We therefore determine and find that the appeal involved was wrong’fully taken to this court. It is therefore ordered that the clerk of this court transmit the transcript and all files herein with this order of transfer to the clerk of the Supreme Court of the State of Illinois.

Transferred to Supreme Court.


author: Mr. Presiding Justice Baume

text:
      J. C. McClure, Plaintiff in Error, v. C. T. Putnam, Defendant in Error.
    1. Statute of Limitations—how question of tolling of statute by absence from state determined. Whether or not the party seeking to avail of the statute acquired a fixed and .permanent abode or dwelling out of the state, which operated to avoid the running of the Statute of Limitations, is a question of fact for the jury.
    2. Appeals and ebbobs—effect of failure to abstract instructions. The action of the court in giving or refusing instructions need not be reviewed by the Appellate Court in the absence of such instructions being contained in the abstract.
    Action commenced before justice of the peace. Error to the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Rehearing denied May 20, 1908.
    C. G. Taylor and G. W. Salmans, for plaintiff in error.

      J. B. Mann and L. T. Allen, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In a suit originally instituted January 6, 1906, before a justice of the peace, where there was a verdict and judgment against plaintiff in error for $134.40, plaintiff in error perfected his appeal to the Circuit Court of Vermilion county, where a trial by jury resulted in a verdict and judgment against him for $144.42. The suit was brought by defendant in error to recover the balance due upon an open account for lumber and coal alleged to have been sold and delivered to plaintiff in error. The first item of the account bears date July, 1896, and the last item of the account being a cash credit of $20, bears date January, 1900. There was evidence showing that plaintiff in error had admitted the correctness of the account, and it was, therefore unnecessary for defendant in error to introduce his books of account. If plaintiff in error desired seriously to contest the correctness of the account as evidenced by the books he had the means at his command to compel the production of the books.

The main defense interposed by plaintiff in error was that the cause of action was barred by the Statute of Limitations. To meet this defense defendant in error replied that after the cause of action had accrued plaintiff in error had departed from the state in 1900 and had resided out of the state until 1904, and that the time of such absence of plaintiff in error did not constitute any part of the time limited for the commencement of the action. Bev. Stat. 1905, chapter 83, sec. 18. The evidence tends to show that in 1900 plaintiff in error accompanied by his wife left the State of Illinois and went to Ann Arbor, Michigan, for the purpose of pursuing the study of law; that from that time until 1904, plaintiff in error, with his wife, continued to live at Ann Arbor in a rented house which was furnished by plaintiff in error with furniture taken by him from his home at Hoopeston, Hlinois; that he owned a house at Hoopeston which he leased, reserving a room or rooms in which he stored a portion of his furniture. There is also evidence tending to show that plaintiff in error entertained and. expressed an intention to return to Hoopeston upon the completion of his studies at Ann Arhor. Whether or not plaintiff in error acquired a fixed and permanent abode or dwelling place out of the State of Illinois, at least for the time being (Pells v. Snell, 130 Ill. 379), which operated to avoid the running of the Statute of Limitations, was a question of fact for the jury, and we are not prepared to say that the verdict of the jury upon that issue was not warranted by the evidence.

Objection is urged to the action of the court in giving and refusing certain instructions, but as all of the instructions given to the jury do not appear in the abstract the objections urged are not properly presented for review. Notwithstanding the failure of plaintiff in error to abstract all of the given instructions we have examined all of the instructions tendered by both parties as they appear in the record, and such examination -discloses no error which could have operated to the prejudice of plaintiff in error.

The instruction relating to the alleged partnership, between plaintiff in error and one Mitchell, offered by plaintiff in error and refused by the court, was properly refused because it omitted the necessary element that the sales were made by defendant in error upon the credit of such partnership.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Solon Banfill et al., Appellants, v. Heister & Wallace, Appellees.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against tbe weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Rehearing denied May 20, 1908.
    T. J. Sparks and Solon Banfill, for appellants.
    D. Chambers,, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Prior to March 1, 1905, appellee, C. E. Heister, was engaged in the monument business at Bushnell, Illinois, and was then indebted to Charles H. More, doing business as Charles H. More & Co., in the sum of $146 for one Montello granite die and in the sum of $40 for two granite bases. Thereafter the said Heister formed a partnership with appellee, S. T. Wallace, and the business was carried on by such partnership. After the formation of said partnership, appellee had occasion to use another Montello die and ordered the same from Charles H. More & Co. More & Co. refused to fill such order until, as it is claimed on behalf of appellants, appellees secured to More & Co. the payment of the amount due from Heister individually. It was claimed on behalf of appellees that the security then required by More & Co. was limited to the price of the first Montello die sold to Heister, and did not include the item of $40 above mentioned, for two granite bases. However this may be, appellees in order to procure the Montello die ordered by them assigned to appellant, Solon Banfill, for the use of More & Go., two contracts whereon J. A. Creel was liable to appellees in the sum of $295, which assignment was accepted by said Creel. Subsequently it was agreed between the parties that there should be paid by Banfill out of the proceeds of said contracts, the sum of $100 to one Alex. Frazier and the sum of $9 to one Crosthwait. Banfill collected the amount due on the Creel contracts, together with some interest, and applied the same to the payment of the several amounts above mentioned including the sum of $40 due from Heister to More & Co., for two granite bases. This suit was brought by appellees against appellants to recover said sum of $40, together with interest which appellees claim was not secured by the assignment of the contracts to Ban-fill and was improperly paid by him out of the proceeds of said contracts to More & Co. A trial by jury resulted in a verdict and judgment against appellants for $42 and this appeal followed.

The sole issue.submitted to the jury for determination was whether or not the sum of $40 due from Heister to More & Co. was included in the amount Banfill was authorized to pay out of the proceeds of the contracts assigned by appellees. Upon this issue the evidence was sharply conflicting and would authorize a verdict for either party. In this state of the record the verdict of the jury must be held to be conclusive against appellants.

Appellants submit that the court erred in some of its rulings upon the evidence, and in the giving and refusing of certain instructions; but our attention has not been directed specifically to the grounds upon which such action of the court could have operated to the prejudice of appellants. It is elementary that the firm of Heister & Wallace could not be held liable to pay the individual indebtedness of Heister incurred before his partnership with Wallace without the consent of the latter. Subject to the application of this rule, the issue of fact was submitted to the jury upon proper instructions, and all of the evidence at the commaud of the parties hearing upon the issue of fact involved appears to have been submitted to the jury for their consideration. There is no error in the record prejudicial to appellants and the judgment will be affirmed.

Affirmed.


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    H. H. Howell, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Pleading—when declaration sufficient after verdict to show status of plaintiff’s intestate as that of more than mere licensee. Held, that the declaration in this case, after verdict, sufficiently alleged that the plaintiff’s intestate was something more than a trespasser or a mere licensee.
    2. Verdict—when set aside as against the evidence. A verdict will he set aside on review as against the evidence where clearly and manifestly so.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    George B. Gillespie, for appellant ; L. H. Hackney, Hamlin & Gillespie and R. L. McKinley, of counsel.
    J. W. Howell and Frank T. O’Hair, for appellee.
   Mr. Presiding Justice Baume

.delivered the opinion of the court.

This is a suit hy appellee against appellant to recover damages for wrongfully causing the death of appellee’s intestate, Constantine Mantzikos. A trial by jury in the Circuit Court of Edgar county resulted in a verdict and judgment against appellant for $1,254.25. The declaration alleges that the deceased was in the service of appellant doing construction work with other laborers at various points along its line; that a certain servant of the appellant was placed in charge of such construction work and of the deceased and other laborers who worked under him; that the deceased and other laborers were paid a stipulated price for their services and such laborers were required to furnish their own food,, provisions and supplies at a place of shelter and abode provided for them by appellant ; that while so engaged at and near the village of Wetzel the said laborers were provided a'certain handcar with which the deceased and said other laborers might proceed along said railway to a point where food and other necessary supplies for their support might be obtained; that the servant directing said deceased and his co-laborers had full power and authority to direct them to make use of a certain hand-car provided by the defendant for the purpose of procuring supplies along said railroad; that on August 2, 1905, said deceased and three other laborers, being so directed by said servant, so having authority to procure a hand-car, proceeded on the hand-car from a point near Wetzel to Paris, a distance of five miles, to obtain supplies, and while they were returning on the railway of appellant in the exercise of due care for their own safety, were fun down by an engine which was reversed and running with the tender forward at the rate of about twenty-five miles per hour, in the night time, without any light on the tender to warn persons rightfully upon the track that it was approaching; and that because of the negligence of the defendant in failing to provide lights, bells, whistles or some signal upon the front of said cars, engine and tender, or some part thereof, to notify persons of the approach of said train of cars, said deceased was then and there killed, etc. To this declaration appellant pleaded the general issue.

It is first urged by appellant that the declaration does not state a cause of action and that the court erred in overruling the motion in arrest of judgment. This position is predicated upon the assumption that the allegations of the declaration amount to nothing more than a charge that the deceased was a bare licensee upon appellant’s railroad at the time he was killed, and it is not alleged that the deceased was killed by the wilful or wanton act of appellant, but merely that his death resulted from the negligent failure of appellant to give warning of the approach of the train by a light upon the tender of the locomotive, or by some signal or warning sound of bell or whistle.

It must be conceded that as to a trespasser or bare licensee upon its track, a railroad company owes no duty except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril, and that to such trespasser or bare licensee a charge that the injury complained of resulted from negligence merely, is not sufficient to support a recovery. I. C. R. R. Co. v. Eicher, 202 Ill. 556; Thompson v. C., C., C. & St. L. Ry. Co., 226 Ill. 542. We think that the allegations of the declaration in the case at bar are sufficient after verdict to determine the status of the deceased in his use of the hand-car upon appellant’s track as more than a bare licensee.

While the declaration does not allege the existence of a contract between appellant and the laborers performing its construction work which imposed a duty upon appellant to provide means for transporting necessary provisions from a point of supply to the place where such laborers were engaged in working, it does allege that said laborers were provided by appellant with a hand-car whereby they might proceed along the railroad to a point where food and other necessary supplies might be obtained, and upon the occasion in question that the deceased with three other laborers was directed to take a hand-car and proceed to Paris, a distance of five miles, for that purpose. Under such circumstances the deceased and his co-laborers upon the hand-car were neither trespassers nor bare licensees, and the duty was imposed upon appellant to exercise reasonable care in the operation of its trains to prevent an injury to such laborers using a hand-car upon its track by its express consent and direction.

That this was the view of counsel for appellant as to the legal duty of appellant in the premises is manifest from a consideration of the instructions given to the jury at the request of appellant, which instructions predicated a right of recovery upon proof that the deceased was using the hand-car with the permission and consent of appellant ¡ that appellant was guilty of the negligence alleged in the declaration, and that appellee’s intestate was in the exercise of due care for his own safety.

It was incumbent upon appellee in order to establish the status of the deceased as other than that of a trespasser or bare licensee to show by a preponderance of the evidence that the hand-car in question was provided by appellant to be used by the deceased and his co-laborers for the purpose of procuring necessary provisions and supplies, and that some one acting for appellant, with authority so to act,’ expressly authorized and directed the deceased and his co-laborers to use the hand-car upon the occasion in question. A careful consideration of the evidence in the record compels us to the conclusion that it is not sufficient to support a finding against appellant upon this issue. The only evidence offered on behalf of appellee in support of the averment in the declaration that the handcar in question was provided by appellant to be used by the deceased and his co-laborers for the purpose of procuring necessary provisions and supplies, and that some one in authority expressly authorized and directed the deceased and his co-laborers to use the handcar, is the testimony of the witness Begas Begopoulos. This witness was one of the laborers who accompanied the deceased upon the hand-car from Wetzel to Paris. He was unable to speak English and his testimony was given through an interpreter. He, testified that all communication between the Greek laborers and the other employes of appellant was carried on through an interpreter.

In response to the question by counsel for appellee as to what the deceased or any of the Greek laborers who went to Paris said to the foreman about getting a hand-car to go to Paris to get provisions the witness, Begopoulos, testified: “The interpreter asked second boss, American, five minutes before he quit work, if we could get the hand-car to come to town to buy provisions.” He said, “Take it, here, let them have it.'” On cross-examination the same witness testified: “There were two men bossing the gang, a Greek and an Englishman. I never heard the Englishman’s name. The Greek foreman he asked the permission of the Englishman to take the car. The Greek came back and said it was all right. The name of the Greek foreman is Peter Economopoulas. The boss gave us permission to take the car. We talked to the Greek and both the Greek and Englishman came back and said ‘take the car. ’ Do not know the name of the English foreman. ’ ’ This evidence is manifestly too indefinite, uncertain and unsatisfactory to establish the identity of the person alleged to have authorized the deceased and his co-laborers to take and use the hand-car, or the authority oLsuch person to act in the premises.

Furthermore, the testimony of this witness is, we think, successfully impeached by a written statement signed by him on August 9,1905, in which he says that the hand-car was taken without the permission of the boss.

John Winn, a witness called on behalf of appellant, testified that he had charge of the gang of men employed in construction work at Wetzel; that no Greek was employed in any capacity as foreman or boss; that no application was made to him on behalf of the deceased or any of his co-laborers for permission to take and use the hand-car upon the occasion in question ; and that he did not give any such permission.

Having arrived at the conclusion that the verdict of thé jury upon the issue indicated is against the manifest weight of the evidence it is unnecessary to discuss and determine the other question argued on behalf of appellant. The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    Ida Armstrong, Appellee, v. John F. Armstrong, Appellant.
    Q-ifts-when deemed executed. A gift of a promissory note upon the consideration of love and affection is, ordinarily, not enforceable after the death of the maker, hut such a gift is deemed executed and such a note is enforceable after the death of the maker where, in his lifetime, he told the payee to sell the note and retain the proceeds.
    Objections to executor’s report. Appeal from the Circuit Court of Christian county; the Hon. Tbusian E. Ames, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Hogan & Wallace, for appellant.
    W. M. Provine and Frank P. Drennan, for appellee.
   Mr. Presiding Justice Baume

delvered the opinion of the court.

This is an appeal by John F. Armstrong, executor of the estate of Thomas D. Armstrong, deceased, from an order of the Circuit Court of Christian county, .sustaining objections interposed by Ida Armstrong to the final report of said executor.

On January 9, 1905, Thomas D. Armstrong executed his promissory note for the sum of $300, payable to his granddaughter, Ida Armstrong, two years after date. It is conceded that the note was executed without con sideration and was delivered to the payee as a gift. Sometime in February, 1905, the payee, Ida Armstrong, assigned the note by endorsement to Fred H. Kinney, and received from Kinney the face value of the note. Thomas D. Armstrong died in August, 1905, leaving his last will and testament, whereby lie bequeathed to said Ida Armstrong a certain portion of his estate. Thereafter Kinney filed said note as a claim against the estate of Thomas D. Armstrong, and having established the fact that he was an innocent purchaser of the note for value, before maturity, recovered judgment against the estate for the amount thereof. John F. Armstrong, as executor of the estate of Thomas D. Armstrong, deceased, filed his final report as such executor, and therein deducted from the distributive share of Ida Armstrong as a legatee under said will, the said sum of $300 paid by him to Fred H. Kinney -in satisfaction of the judgment recovered against the estate on said note. To this report .of the executor objections were filed by Ida Armstrong and upon a hearing in the County Court such objections were sustained. • The executor appealed to the Circuit Court where a hearing was had before the court, and a like order entered sustaining the objections to the report. From this order the executor has appealed to this court.

The evidence in the record discloses the followin'?1 o facts: At the time of his death, and for one or two years prior thereto, Thbmas D. Armstrong had lived at the home of his daughter-in-law," Josephine Armstrong, mother of the appellee, Ida Armstrong, in Taylorville, Illinois; that after writing and executing the note in question on January 9, 1905, Thomas D. Armstrong gave the • same to Josephine Armstrong,' and directed her to 'send it to his granddaughter, Ida Armstrong1/ then temporarily absent in Lincoln, Illinois; that shortly thereafter, Thomas D. Armstrong told Josephine Armstrong that he had taken legal advice in the matter of his note to Ida, and directed Josephine to write to Ida and tell her to come home and dispose of the note, so that she conld get the money on it, that there might he trouble unless she sold it; that upon the return of Ida Armstrong to Taylorville, Thomas D. Armstrong told her to sell the note, that that was what he gave it to her for and he wanted her to have the money; that Ida Armstrong then sold the note to Fred II. Kinney, and thereafter told Thomas D. Armstrong that she had sold it and received the money thereon, and he told her that was what he wanted her to do.

It is well settled law that a promissory note executed without any other consideration that that of natural affection, and intended merely as a gift to the donee, cannot he made the basis of a recovery either at law or in equity by the. donee against the donor or against his estate after his death. Williams v. Forbes, 114 Ill. 167; Richardson v. Richardson, 148 Ill. 563.

It' is insisted on behalf of appellant that the case at bar comes within the rule above stated, and that thé trial court therefore erred in sustaining the objections of Ida Armstrong to the executor’s report. .Special reliance is placed by counsel for appellant upon the ease of Bichardson v. Bichardson, supra. In that case the husband in his lifetime gave to his wife, without consideration therefor, certain notes, which she, after his death and before maturity of the notes, sold and assigned to an innocent purchaser, who recovered the amount of the notes from the estate, and it was held that the sale of the notes by the widow was fraudulent as against the heirs of her deceased husband, and that his estate having been held liable to the purchaser, in good faith, of said notes, a court of equity .had power to deduct from the distributive share of the widow in her husband’s estate, the amount which the executor had become liable to pay to the holder of said' notes. W.e think the facts in the case at bar distinguish it from the facts involved in the Richardson case and must necessarily lead to a contrary conclusion.

By directing the payee of the note to sell the same in his life time and to retain the proceeds of such sale, the deceased, in effect, constituted the note a mere vehicle for the purpose of obtaining the money thereon and giving such money to the payee. It was as though the deceased had himself negotiated his own note and given the proceeds thereof to his granddaughter. In such case, there can be no question but that the gift by the deceased to his granddaughter of the money so obtained would have been fully executed.

The order of the Circuit Court was right and will be affirmed.

Affirmed.


text:
    Sarah Allen, Administratrix, Appellee, v. Springfield Consolidated Railway Company, Appellant.

      Verdict—when set aside as against the weight of the evidence. A verdict clearly against the preponderance of the evidence will be set aside on review. ' ft
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Wilson, Warren & Child, for appellant.
    John C. Snigg and John G. Friedmeyer, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant for $4,000 for wrongfully causing the death of her intestate, Thomas J. Coyne.

The first count of the declaration alleges that the deceased became a passenger for hire on one of the street cars of appellant and that he alighted from said car for ■ the purpose of permitting another passenger to alight, and with the intention of again boarding said car; that after he had so alighted and while in the exercise of due care he was attempting to board said car, the servants of appellant negligently and without giving him sufficient time to board said car started the same forward whereby he- was thrown therefrom to the ground, etc. The second count alleges that while the deceased in the exercise of due care was attempting to board said car, and had gotten onto the first step of said car, the servants of appellant negligently caused said car to be started, whereby, etc.

Numerous errors are assigned by appellant and relied upon for a reversal of the judgment, but in the view we are disposed to take of the case, it will only be necessary to consider and determine the assignment that the verdict of the jury is against the manifest weight of the evidence. Upon another trial of the case, if one is had, the other errors assigned, should, and doubtless will be, eliminated.

It is uncontroverted, that between 8 and 9 o ’clock in the morning of February 15, 1906, the deceased was seen by a policeman sitting on the edge of the sidewalk at the corner of Fifth and Monroe streets; that he was then intoxicated and asleep; that the policeman awoke bim and told’ him he would either have to get off the street or go home, and deceased expressed his willingness to go home; that he was asked his name, where he lived, and what car he took to reach home, and when the Governor street car, being the car designated by him, reached that place, he was assisted on to it by the policeman. The conductor on the car testified that he also helped to put the deceased on the car; that in reply to his inquiry, the deceased said he desired to get off at Smith street; that when the ear stopped at the crossing on Lincoln avenue, the deceased started to get off and he told him it was not Smith street, and that the deceased said he would get. off there anyway; that a little girl was then about to leave the car at that place and he asked deceased to wait until she had alighted; that the deceased did so and then as he stepped out of the car he took hold of the handle on the outside, on the north side of the car, with his right hand and turned around and attempted to catch the other handle with his left hand, but missed it and fell to the ground; that during all of that time the car had not moved.

The only evidence in the record in support of the allegations in the declaration is the testimony of James Coyne, a son of the deceased, aged 14 years, who testified that as he was going to school he saw his father on the car at the Lincoln avenue crossing, immediately after a lady had left the car; that his father had hold of the bar of the car and his left foot was on the car; that the car started up with a jerk and his father held on and shouted, “Wait a minute;” that the conductor said nothing and the car proceeded westward; that his father could hold on no longer and fell off. On cross-examination he testified that he was about half a block west of Lincoln avenue when he first saw his father; that the car was then standing still on the crossing,that his father was standing holding the bar and had his foot on the step of the car; that as soon as the lady alighted from the car, the conductor rang the bell and the car started forward and did not stop again; that before his father boarded the car he heard him call out, “Wait a minute;” that the car then proceeded at full speed and his father could not hold on any longer and fell off about half a block from Lincoln avenue, and that he walked to where his father was lying and picked him up. Upon re-cross examination he testified that he was within 12 feet of the car when the conductor rang the bell; that he ran from the middle of the block to Lincoln avenue and was there when the car started, and then ran back again to the middle of the block where his father fell off.

Aside from the testimony of the conductor and motorman, which is in direct conflict with the testimony of James Coyne, five disinterested persons testified as witnesses on behalf of appellant. Charlotte York testified that she was on her front porch and saw the car when it stopped at the crossing on Lincoln avenue; that she then saw the deceased on his hands and knees and saw the conductor lift him up; that when the car started west again she saw the deceased standing by the fence on the south side of the street. Mrs. Nannie Asa testified that she saw the deceased stagger across the street to the corner and that when he had reached the south side of Governor street the car had traveled about 40 feet west of Lincoln avenue. Mrs. W. W. Waggoner testified that she did not see the deceased fall, but she saw him when he was led across the track and saw him start over to the corner, where he leaned or fell against the fence; that the car was then standing at the usual stopping place. Martha Field testified that she saw the car cross Lincoln avenue and saw the deceased go around the rear of the car as it was standing at the crossing; that he then staggered over to the corner, and after he crossed the street the ear pulled out; that he was standing by the fence when the car started. W. D. Asa testified that he saw the deceased on the ground and that the car was then standing at the crossing ; and that the deceased had crossed the track on his way to the south side of the street before the car moved.

It is apparent from a consideration of the foregoing, that the testimony of the five distinterested witnesses named, corroborates the testimony of the conductor and motorman in all substantial particulars, and that it is in direct conflict with the testimony of James Coyne, the only witness relied upon by appellee to sustain her case. The apparent contradictions and inconsistencies in the testimony of the last named witness, clearly indicate that he was either hopelessly confused while testifying or grossly mistaken in his narration of the facts.

If, as the great preponderance of the evidence tends to show, the deceased, while intoxicated, and by reason of such intoxication, fell from the street car in attempting to alight therefrom, while the same was stationary at the crossing, appellant is not liable.

Because the verdict of the jury is contrary to the manifest weight of the evidence in the ease, the judgment of the Circuit Court is reversed and the cause' remanded.

Reversed and remanded.


text:
    Cosmos Keller, Appellant, v. County of Jersey, Appellee.
    Appeals and ebboks—when nothing preserved for review. If it does not appear from the hill of exceptions that the appellant excepted to the finding and judgment of the court and if it does not appear that any propositions of law were submitted to the court to be held as the law of case, there is nothing preserved for review (except such questions as arise from the common law record).
    Assumpsit. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Rehearing denied May 21, 1908.
    H. W. Pogue, for appellant.
    Vaughn & Chapman, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellant against appellee to recover for services rendered as bailiff at the September term, 1908, of the Circuit Court of Jersey county. The case was tried by the court without a jury and resulted in a finding in favor of appellee and judgment against appellant for costs.

The only alleged errors urged upon our attention by appellant for a reversal of the judgment are, that the finding and judgment of the court is against the evidence, and that the court erred in applying the law to the facts as found.

It does not appear from the bill of exceptions that appellant .excepted to the finding and judgment of the court, neither does it appear that any propositions of law were submitted to the court to be held as the law of the case. In the absence of such showing in the bill of exceptions the action of the trial court in the respects indicated, is not properly preserved for review in this court. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Tucker v. Duncan, 224 Ill. 453.

The judgment of the Circuit Court will be affirmed.

Motion to tax cost of additional abstract to appellant is denied.

Affirmed,.


text:
      George Powers, Administrator, Appellee, v. Chicago, Burlington & Quincy Railway Company et al., Appellants.

    1. Master and servant-duty of railroad company to locomotive fireman. A railroad cooipany employing a locomotive fireman is not an insurer of the safety of the tracks upon which he is required to run nor is such company required to furnish the most approved appliances or to exercise the highest degree of care to provide safe tracks, but it is the duty of such company to exercise reasonable care to provide reasonably safe tracks, switches, appliances and equipment.
    2. Master and servant-when negligence of fellow-servant will
      not preclude recovery. If a servant is injured as the result of the combined negligence of his master and a fellow-servant, the master is nevertheless liable.
    3. Master and servant—how question of duty of railroad company to patrol track determined. Whether a company, having actual knowledge of a heavy storm, is, with respect to its servants, under the obligation to patrol its tracks, is a question of fact to be determined by the jury, and whether it has violated such duty, likewise, is a question for the determination of the jury. The duty to patrol, if it exists, is a non-delegable one.
    4. Pleading—what admitted Toy plea of general issue. By interposing merely a plea of the general issue, a defendant railroad company impliedly admits the allegations of the declaration concerning the ownership and operation of the railroad.
    5. Evidence—when rulings with respect to, not ground for reversal. In the absence of prejudice, rulings upon questions of evidence, even though technically erroneous, are not ground for reversal.
    6. Instructions—propriety of reference to declaration. It is not improper for the court to refer the . jury to the declaration to determine the negligence charged.
    7. Instructions—when refusal of, precluding recovery upon particular count, not ground for reversal. Where the evidence warrants a recovery under one count of the declaration, it is not error for the court to refuse an instruction to find for the defendant under a count of the declaration not supported by the evidence.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cass county; the Hon. Harrt Higbee, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Rehearing denied May 22, 1908.
    Sweeney & Walker, for appellant; Chester M Dawes, of counsel.
    Mills & McClure, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment for $10,000 in the Circuit Court of Cass county, in favor of appellee and against the appellants, in an action on the case to recover damages for wrongfully causing the death of appellee’s intestate, George H. Stinson. The first count of the declaration charges that the appellant railroad company was the owner of certain railroad and switch tracks, which the appellant railway company operated as lessee; that the deceased, George H. Stinson, was employed by' said railway company as a locomotive fireman and that it was the duty of appellant to exercise reasonable care to furnish the deceased with a reasonably safe place in which to work; that appellants negligently connected a side track at Ipava with the main track there by means of an “automatic frog-switch ” and “split rail switch,” whereby cars standing* upon the sidetrack were allowed to pass from said side track on to the main track automatically, and without throwing the switch by hand; that said side and main tracks were constructed on a heavy down grade without any derail, or other safety device, to prevent cars on the side track from escaping on to the main track; that at about 1 o’clock a. m. on June 30, 1906, in consequence of the negligence of appellants three ears escaped from said track and ran down the main track, whereby the deceased, while in the discharge of his duties as fireman on a locomotive engine 'hauling one of the appellants’ passenger trains on said main track, and while the deceased and the engineer in charge of the engine were in the exercise of due care for their own safety, said engine with great force and violence collided with said freight cars on the main track thereby killing the deceased, etc. The additional amended count charges that on June 30, 1906, a storm of some severity, of which appellants had notice, occurred at Ipava and vicinity, and three cars then and there standing upon a side track were started in mo-0 tion by wind and blown from said side track on to the main track and on said main track a distance of two miles to the foot of a grade, where said cars stopped; that it was the duty of appellants, then and there, after a wind storm of any severity, to patrol said main track, or by otherwise inspecting it, to discover obstructions thereon, and that if said track*had been so patrolled, or otherwise inspected, said three cars would have been discovered thereon; that appellants did not then and there patrol or otherwise inspect said track, and did not use reasonable care to provide a reasonably safe place for the deceased tó work, but on the contrary wholly neglected to perform their duty in that respect, whereby said three cars on the main track were not discovered, but were permitted to remain thereon for three hours after said wind storm; and that while the deceased was in the discharge of his duty, as alleged in the first count, he was killed as therein charged, etc. To this declaration appellants pleaded the general issue.

The facts as conclusively determined by the evidence in the case are substantially as follows: The main and side tracks in question run east and west through the village of Ipava. The side track, about 1,600 feet in length, is located north of the main track upon a three-degree curve and is connected at its east end with the main track by a split switch with spring-rail frog. When cars are desired to be run from the side track to the main track, the switch is ordinarily operated with a hand lever, whereby the north split rail is disconnected from the north rail of the main track, and the south split rail is connected with the south rail of the main track. If, however, cars on the side track are run with sufficient momentum, the force of the pressure exerted by the flange of the car wheels upon the split rail is sufficient to open the switch and permit the cars to go upon the main track, and after the cars have so passed over the switch the spring in the frog operates automatically to close the switch. The switch at the east end of the side track was not equipped with a derail contrivance, the function of which is to throw cars off the track on to the ground, when the switch is not in proper position to connect the side track with the main track. From a point on the side track 700 feet west of its connection with the main track, there is a slight incline, the grade being- 1.07 feet, or one-tenth of a foot in each 100 feet. Taking into consideration the slight grade of the side track mentioned and the curve in the track which operates to produce some friction upon the upper rail by the flange of the car wheels, either while stationary or in motion, the portion of the side track here involved presents the same conditions with reference to the movement of cars-thereon as does a level track. A split switch such as the one in question is a standard type of switch ordinarily used on western railroads, and by appellants, without a derail contrivance, where the track conditions are similar to those in question. At about 9:30 o’clock in the forenoon of June 29,1906, a freight train operated by appellant railway company stopped at Ipava and took one of six freight cars standing upon the side track. Five cars, one partially filled with corn, and four stock cars, were, left upon the side track about 200 feet from the main track, and the brakes were set upon three of the cars. At about ten o’clock at night on the same date, a severe wind and rain storm prevailed along the line of appellants’ railroad about Ipava, of which storm appellant railway company had notice, as is evidenced by the following cautionary telegram sent by J. W. Mulhern, superintendent of the Galesburg division of appellant railway company and delivered to the conductor of passenger train No. 52 at Galesburg:

“Engr. No. 52 D 6/29 Acct. very heavy rain and wind storm trains will run carefully over track liable to be affected. JVM.”

A copy of this telegram was given by the conductor to the engineer of train No. 52 and by the latter to the deceased, as is evidenced by the fact that the same was found in a pocket in the clothing of deceased after his death. At about 1 o’clock in the morning of June 30, 1906, and at a point on the main track about a mile and a half east of Ipava, train No. 52, a passenger train consisting of a locomotive and six cars, upon which J. (x. De Sollar was locomotive engineer and the deceased was fireman, collided with the five freight cars which were standing there at the bottom of an up grade, and which had escaped from the side track on to the main track. The force of the impact derailed the locomotive and appellee’s intestate was crushed between the cab and the tender, sustaining an injury from which he died. A portion of rule No. 1152 relating to the duties of a section foreman embodied in a book of rules issued by appellant railway company to govern the conduct of its employes, is as follows: “In case of heavy storms and rains or violent winds have the entire section patrolled both day and night, especially watching points where obstructions are likely to occur. Except in case of emergency, allow no work that will obstruct the track to be done during fog or storm.” The evidence tends to show that the wind storm which prevailed on the night of June 29th, while general in its scope, was most severe within a comparatively narrow path directly in line with the side track upon which the five freight cars were standing, and that within that path trees were blown down, and more damage was done than in other territory adjacent.

Nelson Madison, who was in the employ of appellant railway company as section foreman, in the section.of the railroad where the accident occurred, testified that he lived in Ipava, about four blocks from the switch in question; that he went to bed at about 9:30 o’clock on the night of June 29th and that he heard the wind about 15 minutes later; that he arose and went out on the porch of his house where he watched the storm and then closed the window and locked the door and returned to bed, where he remained until he was awakened at about 2 o’clock"a. m. to look after the wreck; that he did not consider the storm to be more than a usually hard wind, or that it was sufficiently severe to require him to make an inspection, and that the track was not patrolled that night.

J. G-. De Sollar, the engineer of the wrecked train, testified that the night was dark and stormy; that he kept a sharp lookout for anything he could see but at times could not see very much; that as he neared Ipava he discovered an object on the track about 400 or 450 feet ahead of his train; that he could not see any further ahead than that distance; that as soon as he discovered the object he hollered to the deceased, “George, look out for yourself;” that he then shut off the engine, opened the sand box and applied the air brakes and lever, and that the train was stopped as soon as possible.

A preponderance of the evidence tends to show that the side track, for a point 50 or 60 feet west of its connection with the main track, was on a slight up grade to such connection, but however that may be, it is clearly established by the evidence that no derails were used upon appellants’ railroad at switch connections, where the side track was practically level, as in the case at bar, and that at all points where derails were used for the purpose of making a reasonably safe track, the side tracks were on a much steeper down grade than the grade of the side track in question.

Appellants were not insurers of the safety of the track, nor were they required in this case to furnish the most approved appliances, or exercise the highest degree of care, to provide a safe track, but their obligation to the deceased was fulfilled if they exercised reasonable care to provide reasonably safe switches and equipments. Rogers v. C., C., C. & St. L. Ry. Co., 211 Ill. 126. We are clearly of the opinion that the evidence in this record does not convict appellants of the negligence charged in the first count of the declaration.

The alleged liability of appellants arising under the allegations of negligence in the additional count of the declaration presents a more serious question. It is urged on behalf of appellants that the death of the deceased was caused by the negligence of his fellow servant, the engineer De Sellar; that De Sellar was negligent in failing to observe the directions to run his train carefully over the track liable to be affected. This position necessarily assumes that appellants were not guilty of negligence contributing to the death of the deceased. If a servant is injured as a result of the combined negligence of his master and of a fellow servant, the master is nevertheless liable. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145.

Furthermore, the duty imposed upon the master to exercise reasonable care to provide a reasonably safe place for his servant to work, is a duty which cannot be delegated, so as to relieve the master from liability. Rogers v. C., C., C. & St. L. Ry. Co., supra; Deering v. Barzak, 227 Ill. 71. If the appellant railway company was guilty of negligence in failing to inspect or patrol the track in the path of the storm and thus discover the obstruction which caused the accident it cannot escape liability therefor upon the ground that the negligence of a fellow servant of the deceased concurred in causing such accident. The duty, if it existed, to inspect or patrol the track after the storm was a duty resting upon the appellant railway company, which it could not delegate, so as to relieve itself from liability.

We are not, however, persuaded that the locomotive engineer was guilty of negligence. The evidence does not disclose at what rate of speed the train was running at the time of the collision, but the results following the collision do not impress us as justifying the conclusion that it was running at a rate of speed beyond the ability of the engineer to reasonably control. In the face of the direction to “run carefully over track liable to be affected,” it will not be presumed, in the absence of evidence to the contrary, that the engineer periled the lives of himself, the train crew and the passengers by running his locomotive at a dangerous rate of speed. As we have heretofore said, it is conclusively established that the appellant railway company had actual notice that a very heavy rain and wind storm had prevailed or was prevailing, along the line of railroad over which train No. 52 was scheduled to run, and this knowledge said appellant must have acquired immediately after the storm arose, as it was communicated to the train crew at Galesburg, a station a very considerable distance from the place of the accident. Having such actual knowledge, it became a question of fact for the jury to determine, whether- in the exercise of reasonable care to keep the track in a reasonably safe condition for travel, it was incumbent upon appellant railway company to patrol or otherwise inspect the track, and whether or not the space of three hours which followed the storm and preceded the accident, was a reasonably sufficient time in which to perform that duty.

While the portion of rule 1152, heretofore mentioned, requiring séction foremen, in case of heavy storms and rains or violent winds, to have the entire section patrolled both day and night, was not competent to be admitted in evidence for the purpose of establishing a substantive ground of recovery, it was competent as tending, together with the other evidence in the .case, to establish the negligence alleged in the additional count of the declaration. It was equivalent to an admission by the appellant railway company that reasonable care to keep the track in a reasonably safe condition, required that the track should be patrolled when the conditions mentioned in the rule existed. L. S. & M. S. Ry. Co. v. Ward, 135 Ill. 511; Chicago City Ry. Co. v. Lowitz, 218 Ill. 24.

The duty to patrol the tracks being one which the appellant railway company could not delegate so as to avoid liability, it can make no difference that the section foreman did not consider the storm of sufficient severity to require action by him. It is significant in this case that the language of the telegraphic direction by the superintendent of appellant railway company, heretofore referred to, characterized the storm which had prevailed in almost the precise words employed in the rule offered in evidence. By that telegram the train crew were notified that “very heavy rain and wind storm” conditions existed, and in the rule offered in evidence, “heavy storms and rains or violent winds” are the conditions stated, requiring* the entire section to be patrolled both day and night.

It is urged on behalf of appellants that the telegraphic direction referred to superseded the necessity or duty devolving upon the railway company to patrol or otherwise inspect the track. This contention is necessarily predicated upon the theory that the duty to inspect or patrol the track could be delegated to the train crew. The premise of this contention being false it necessarily follows that the contention is without merit.

Upon the whole record we are of opinion that the jury were not unwarranted in finding appellants guilty of the negligence alleged in the additional count of the declaration.

In view of the fact that appellants only pleaded the general issue, there is no force in the insistence of appellant railroad company that appellee failed to prove the ownership of the railroad by said company, as alleged in the declaration. By interposing merely a plea of the general issue, appellants impliedly admitted the allegations of the declaration concerning the ownership and operation of the railroad. Penn. Ry. Co. v. Chapman, 220 Ill. 428; Chicago Union Trac. Co. v. Jerka, 227 Ill. 95.

It is urged that the court erred in permitting appellee to prove that there was a derail device at the west end of appellants’ side track at Ipava, and also at other points on the line of the railroad. An examination of the record discloses that some of the evidence complained of was admitted without objection, and in response to cross interrogatories propounded by counsel for appellants to witnesses called by appellee who had not been interrogated upon that subject in their direct examination, particularly the witness J. Gr. Be Sollar and the witness Nelson Madison when recalled by appellee. Appellants could not, therefore, have been prejudiced by the ruling in the instances in which objection was interposed. Other objections urged to the admission of certain testimony are so clearly without merit as to require no discussion. Appellants’ criticism on the first and second instruction given on behalf of appellee are not justified. What has heretofore been said as to the liability of appellant railroad company answers the first objection to the first instruction, and the second objection, manifestly due to an oversight, is withdrawn. The second instruction merely referred the jury to the declaration to determine the negligence charged and has repeatedly been held to be unobjectionable. Chicago City Ry. Co. v. Carroll, 206 Ill. 318.

The tenth instruction offered by appellants and modified by the court was improper as offered, and as modified and given to the jury it was most favorable to appellants. What we have heretofore said in discuss-ing the alleged contributory negligence of the locomotive engineer, precludes the necessity of further discussion of the objection urged to the modification by the court of that instruction. The thirteenth instruction offered by appellants, and given to the jury as modified by the court, is alleged by the modification to have informed the jury that the burden of proof as to the knowledge of appellants of the presence of the freight cars upon the main track was not upon appellee. There is no basis for such objection to the instruction as modified. The instruction as given expressly makes proof by appellee by a preponderance of the evidence of the fact of such knowledge, a prerequisite to a finding that appellants had such knowledge. It is also urged that by the modification, the instruction authorized a recovery upon proof of constructive knowledge of that fact, while the declaration alleged actual knowledge only.

We do not so read the declaration, hut if the modification of the instruction was subject to the criticism made, it would avail appellants nothing, because the instruction as offered contained a like reference to constructive knowledge.

Error is assigned upon the action of the court in refusing certain instructions offered by appellants. Where the evidence warrants a recovery under one count of the declaration it is not error for the court to refuse an instruction to find for the defendant under a count of the declaration not supported by the evidence. Franklin Prtg. Co. v. Behrens, 181 Ill. 340. There was no error therefore in refusing the second instruction offered by appellants. The third refused instruction was argumentative, and inaccurate in its statement of the duty imposed upon the appellants and was properly refused. The fourth refused instruction was inaccurate in that it recognized the right of appellant railway company to escape liability by delegating the performance of a duty primarily resting upon it.

In view of the fact that the evidence conclusively established knowledge on the part of appellant railway company that a very heavy wind storm prevailed on the night of the accident there was no error in refusing the fifth, ninth and twelfth instructions offered by appellants.

There is no reversible error in the record, and the judgment of the Circuit Court will be affirmed.

Affirmed.