text:
    John Joohs, Appellee, v. Culver Construction Company, Appellant.
    Master and servant—care required in selection of employes. A master is not a warrantor or insurer of the competency of his servants. A servant upon entering the employ of his master is held to assume the natural and ordinary risks incident to the business in which he engages and impliedly contracts that the master shall not be liable for injuries consequent upon the negligence of a fellow-servant in the employment of whom the master has exercised ordinary care and prudence, that is, a degree of care and prudence proportionate to the exigencies of the particular service.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    Hamilton, Catron & Sampson, for appellant.

      Shutt, Graham & Graham, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The declaration in this ease alleges that on- May 9, 1904, appellant, the Culver Construction Company, was operating, by its engineer, a steam hoisting crane for raising, lowering and moving large stones in erecting the post office building in Springfield, and that appellee was then engaged in setting stones in said building; that said stones were large and heavy and were hoisted on the wall by means of said crane operated by an engineer employed by appellant; that it was the duty of appellant to furnish a careful, competent and experienced engineer to operate said crane, and by means thereof to hoist stone and assist appellee in placing same; that appellant sent one Prank Stout whom appellee did not know as an engineer, and who had .never theretofore operated said crane in connection with appellee’s work; that appellee declined to set stone in connection with Stout as engineer, until appellant, through its foreman, stated that Stout was a capable, competent and safe man to operate said crane, and that relying on such statement appellee began setting stone on the wall in connection with said Stout, as engineer; that not regarding its duty to furnish a reasonably safe, capable and competent man to operate said crane, appellant negligently furnished an inexperienced, unsafe and incompetent man in the person of said Stout to perform said duty, and that such fact was well known to appellant, but unknown to appellee; that said Stout by means of the said crane hoisted a large stone weighing 2,000 pounds to the place where it was to be set in the wall by appellee, and that in properly handling the said stone it was necessary by use of shears to keep the stone suspended while appellee was preparing its bed or position; that while appellee was standing on a scaffold outside of said wall, ready to prepare the bed for said stone to be set in, and while in the exercise of due care for his own safety, said Stout, because of his said inexperience, incapability and incompetency, suddenly jerked said stone by means of the crane, thereby causing the shears holding the stone to slip, throwing its weight on appellee so that the scaffold was broken and appellee was thrown eighteen feet to the ground, and the stone fell on him, injuring him, etc. To this declaration appellant pleaded not guilty and a trial by jury resulted in a verdict and judgment in favor of appellee for $3,000.

The crane in question was of the locomotive type operated by steam and weighed about forty tons. It was equipped with a thirty foot steel boom built to the frame, so that the whole frame necessarily moved on its base when the boom was slewed. The crane was provided with eleven levers to be used in controlling or operating its several functions. The tracks upon which the crane ran were laid between appellant’s stone yard and the building then under construction, and the crane was used to carry stone which had been dressed and cut according to specifications, from the stone yard to the building and there hoisted to its proper position upon the wall to be set by the stone setters. At the time of the accident the walls had been constructed to a height of about eighteen feet and were ready to receive the bell course of stone thereon. Prior to the day of the accident the crane had been regularly operated for some months by Joseph lies, but upon that day Frank' Stout was detailed by appellant to operate it.

The evidence introduced on behalf of appellee tends to show that appellee, who was then employed by appellant as a stone cutter and setter, seeing that Stout was operating the crane said to Alfred Roberts, who was employed by appellant as a department foreman, that he (appellee) didn’t care about setting stone with Stout acting as engineer of the crane, and that Roberts replied: “I don’t blame you. Go and get your tools and come down and cut stone.” And that thereupon appellee and his helper cut stone in the yard until noon; that at about one o’clock in the afternoon Boberts told appellee that James S. Culver, the president of appellant corporation, had given directions for appellee to go back on the wall, and that Stout, the engineer, would be all right; that thereupon appellee went upon the west wall of the building and set some stones by hand, which Stout had theretofore hoisted on the wall; that later in the afternoon appellee was called upon by Culver to set a large stone weighing from 1,500 to 1,800 pounds on the south wall of the building; that the stone was then being hoisted up with the crane by means of grab hooks commonly called “dogs,’?'the steel points of which were inserted in notches cut in the ends of the stone; that when the stone was thus hoisted upon the wall it became necessary to remove the dogs, because the projection of the hooks prevented the end of the stone from being placed sufficiently near to the adjoining stone on the wall, and to substitute what are known as “shears” for" the purpose of placing the stone in proper position in the wall; that the shears consist of a steel hook similar to the hook in the dogs, which is inserted in a notch in the side of the stone and a wooden block, usually covered with rubber, which is set against the opposite surface side of the stone; that appellee then directed Stout to take a strain or hoist on the tackle for the purpose of enabling the shears to firmly grasp and hold the stone; that the stone was then moved in approximately its proper position to be set in the wall on the mortar bed, and appellee directed Stout to “hold,” that is, to maintain the stone in its then position ; that as thus situated the stone rested at one end upon a 2 x 4 wooden piece, and at the other end on a piece of wood about the thickness of a lath, and the face of the stone projected about ten inches beyond the wall; that appellee then went down on the scaffold about five" feet below the top of the wall for the purpose of observing whether the stone was placed in line and properly fitted the adjoining stone; that while he was so employed the boom of the crane was suddenly jerked from one or two feet towards the southwest, whereby the wooden block of the shears on the face of the stone, was caused to slip and the stone was thrown off the wall, causing the injury complained of.

The evidence introduced on behalf of appellant tends to show that at the time the stone fell appellee was engaged in improperly attempting to move the stone and set it in position by means of a steel pinch bar, and that in doing this work appellee improperly took a position on the scaffold immediately beneath the stone. This is denied by appellee.

It is well settled that a master is not a warrantor or insurer of the competency of his servants. A servant upon entering the employ of his master is held to assume the natural and ordinary risk incident to the business in which he engages, and impliedly contracts that the master shall not be liable for injuries consequent upon the negligence of a fellow-servant, in the employment of whom, the master has exercised ordinary care and prudence, that is, a degree of care and prudence proportionate to the exigencies of the particular service. “It is such care as a reasonably prudent person would exercise, in view of the consequences that might reasonably be expected to result if an incompetent, careless or reckless servant was employed for the particular duty. Where the service in which the servant is employed is such as to endanger the life and person of co-employes, upon the plainest principles of justice and good faith, the master, upon engaging such servant, should be required to make reasonable investigation into his character, skill and habits of life.” Western Stone Company v. Whalen, 151 Ill. 472.

It was incumbent upon appellee in order to establish his right to a recovery, to show by a preponderanee of the evidence, that the servant employed by appellant to operate the crane was inexperienced, unsafe and incompetent, and that appellant had failed to exercise reasonable care and prudence in employing said servant to perform that duty.

The testimony of appellee, heretofore referred to, wherein he- related a conversation with appellant’s foreman, Roberts, relative to his disinclination to set stone while Stout acted as engineer constituted no substantive proof of Stout’s incompetency, but was merely offered for the purpose of showing that appellee had then no knowledge of Stout’s alleged incompetency.

The evidence in the record establishes beyond controversy that 'Stout, who, at the time in question was about thirty-three years of age, had, up to the time of his employment by appellant in 1902, an extensive experience as an engineer and machinist; that when eighteen years of age he ran a fraction engine in threshing grain, and at the age of twenty-two worked on locomotive engines; that from that time until his employment by appellant, he operated hoisting engines at coal mines, and was engaged in general repair work as a machinist; that in 1896 he successfully passed an examination conducted by the State Board of Mine Examiners and received a certificate of competency as a hoisting engineer; that when he was employed by appellant he was highly recommended as a competent man to handle engines and machinery; that when he was first employed by appellant he was put to work firing the engine which operated the crane in question, and as a hooker, during the construction of the state arsenal; that he worked there in that capacity for six months and occasionally operated the crane as engineer, some times in hoisting and placing stone for the stone setters; that he was subsequently employed by the Chicago and Alton Ry. Co. as repairer at its roundhouse for two years; that he was then reemployed by appellant as a general machinist and engineer, and when lies left on Saturday preceding the Monday on which the accident occurred, he (Stout) had charge of all the engines of appellant, and because of his familiarity with it was selected to instruct the 'fireman, Erickson, how to operate the crane.

Several of his former employers and others, competent to judge, testified that Stout was a careful man and was thoroughly competent, intelligently and properly to operate the crane. It further appears from the evidence that any man ordinarily competent to run a stationary or locomotive engine could, after a few hours of instruction and practice, qualify himself to properly operate the crane.. It is uncontroverted that Stout, prior to the accident had had more than six months’ experience in working with the crane and had devoted the greater part of that time to qualifying himself to operate it, and to instruct other servants of appellant how to operate it. No witness testifies that Stout was incompetent to operate the crane, and the evidence offered by appellee as tending to show that fact is of little, if any, probative value.

lies, whom Stout succeeded, testified that he saw Stout operating the crane on the day of the accident; that he operated it very slowly and carefully; that he could have run faster; that he saw him stop twice before he came up where he could hook to the boat and that a “competent man could probably have run the machine right up to what he was wanting to hook to without any stops, twice as fast as he was running. ’ ’

Harry Reitzer, who operated the crane a year prior to the accident, and for whom Stout was then acting as fireman, testified that Stout was then in charge of the engine for three or four days; that he was operating the digger attachment, excavating for a foundation; that he couldn’t hold the dirt in the bucket, but couldn’t say. that Stout failed to do anything else; that the bucket was hard to control some' times aud got out of line, and that he (Reitzer) had had the same experience.

It is uncontradicted that Stout was digging at that time in made ground, consisting of rubbish and dump from the street, which frequently prevented the points of the bucket from shutting so as to hold the dirt; that the crane was necessarily so situated with reference to the work that the operator was unable to see the bucket.

Peter Erickson, who was fireman for Stout on the day of the accident, testified that Stout was detailed to instruct him how to run the crane; that Stout was about as unfamiliar with the crane as he was, and did not appear to know which way the machine would go when he pushed the lever one way or the other ; and that he saw Stout pull the wrong lever that day. These were merely the conclusions of the witness and he stated no facts which tended to. support his conclusions.

John P. Thompson, one of appellee’s helpers, testified that he saw Stout hoist a load of brick over the boom that day, by hoisting the fall too high. Stout testified that upon the occasion referred to by the witness Thompson, he hooked on to a box of brick and raised it to a place on the building where the wall cut off his view of the box, and that while the box was in that position he received an order to “hoist the fall,” which he did, with the result that the box was pulled' over the boom.; that the proper order to have given under the circumstances was to “hoist the boom.” There is no evidence corroborating Thompson’s testimony in this particular.

Assuming that the boom slewed as testified to by the witnesses for appellee, there is no direct evidence in the record that Stout did anything to bring about that result. Stout testified that he did not move any lever after receiving the order to hold the boom; that he then operated a lever to move the boom is merely inferred from proof of the fact that Stout was in charge of the crane and the further fact that the boom could not ordinarily be slewed unless the proper lever was moved.

We are constrained to the conclusion that the finding of the jury that appellant failed to exercise ordinary care in selecting and retaining Stout to operate the crane, and that Stout was incompetent to operate the same, is against the manifest weight of the evidence, and should, therefore, be set aside. Having arrivéd at the foregoing conclusion it is unnecessary to discuss and determine the other errors assigned.

The judgment is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    The People, for use of County of Vermilion, Appellee, v. Orin L. McCord et al., Appellants.
    1. Counties—what not voluntary payment. A claim allowed and paid hy a county to its treasurer in contravention of the constitution is not a voluntary payment within the meaning of the law so as to preclude a recovery thereof from the sureties of such treasurer.
    2. Counties—when fees earned hy treasurer not individual property. Commissions received hy the treasurer of a county for the collection of a drainage assessment are the property of the county where, the compensation of such treasurer has been duly fixed as provided by law.
    3. Counties—what fees cannot he claimed hy treasurer. A treasurer whose compensation has been fixed by resolution cannot afterwards claim as his own a salary subsequently provided for him as the supervisor of assessments.
    4. Counties—when treasurer not entitled to mileage. Mileage provided by the state law for an official cannot be legally claimed by him unless he makes the journey for which such mileage is provided.
    5. Counties—compensation of treasurer cannot he increased during term of office. Neither directly nor indirectly can a county increase the compensation of its treasurer during his term of office.
    Action of debt. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed in part and reversed in part and remanded.
    Opinion filed June 11, 1908.

      Buckingham & Troup, for appellants.
    J. W. Keeslar and W. J. Gunn, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action of debt instituted by The People of the State of Illinois for the use of Vermilion county, appellee, against Orin L. McCord and the other appellants herein, sureties on his official bond as treasurer of Vermilion county. The cause was tried and judgment entered upon the issues as made by the pleadings alone.. The declaration contains eleven counts and assigns as many breaches of the bond.

The first four counts aver that McCord retained and refused to pay over certain sums of money amounting to $129.70, being commissions on certain inheritance taxes collected by him, and that he was not entitled to receive commissions thereon. To these counts defendants. pleaded specially that said McCord, as county treasurer, collected certain inheritance tax due to the State of Illinois, and that there was due him, as commission, two per cent, on said collection; that he made a verified report and account to the board of supervisors of said county of all moneys received and disbursed by' him, including said sum as commissions; that said board had full knowledge of said claim and charge, and, having such knowledge, thereupon examined and audited said report and account and approved, settled and allowed the same to said McCord; and that said McCord so collected for his own use the various sums named in said counts of the declaration. To these pleas a general demurrer was filed, which, on motion of defendants, was carried back to the said several counts of the declaration. The demurrer to the pleas was sustained and was overruled as carried back to said counts of the declaration, and defendants electing to stand by their pleas, judgment was entered against them for the amount alleged to be due.

The fifth and eleventh counts of the declaration alleged that McCord collected and converted to his own use, certain sums of money amounting to $425, being two per cent, commission upon the amount of money in his hands as ex officio treasurer of the. Jamaica Special Drainage District in said county. To these counts of the declaration defendants interposed a general demurrer which was overruled by the court, and defendants electing to stand by their demurrer, judgment was entered against them for the amounts alleged to be due.

The sixth count alleges that McCord for each of the four years he was in office retained the sum of $44.80, making a total of $179.20, for mileage between the city of Springfield and the city of Danville, in making-settlement with the state treasurer for state taxes collected in Vermilion county; that said McCord did not go to Springfield, nor did any person go for him, to make said settlement with the state treasurer, but that said settlement was made by correspondence and checks or vouchers sent through the mail. To this count defendant pleaded specially the making of a verified report and account to the board of supervisors and the approval of said report by said board with full knowledge of the facts. To this plea plaintiff filed a general demurrer which on motion of defendants was carried back to the count of the declaration and the court overruled the demurrer to the plea and sustained the same as carried back to the count of the declaration, whereupon plaintiff electing to stand by its demurrer judgment was entered thereon for defendants.

The seventh count of the declaration alleges that McCord retained for himself and for his own use the sum of $415, salary as supervisor of assessments, from July 1, 1903, to November 30, 1903, at the rate of $1,000 per year; that said McCord was not entitled to any salary or emolument whatever as supervisor of assessments of said county, but that the duty of acting as said supervisor of assessments was part of his duty as treasurer of said county. To this count of the declaration defendants pleaded specially, averring that said McCord performed the duties of supervisor of assessments as alleged and the making by him of a verified report and account to the board of supervisors, and the approval of said report by said board with full knowledge of the facts. To this plea plaintiff demurred generally, and upon motion of defendants the demurrer was carried back to said count of the declaration. The court sustained the demurrer to the plea and overruled it to the said count of the declaration, whereupon, defendants electing to stand by their plea, judgment was entered against them for the amount alleged to be due.

The eighth and ninth counts of the declaration allege that McCord retained for his own use the sum of $1,000 for the year ending November 30, 1905, and the sum of $1,000 for the year ending November 30, 1906, said sums being for salary as supervisor of assessments for the years 1905 and 1906, respectively, at the rate of $1,000 per year; that the said McCord was not'entitled to any salary or emolument as such supervisor of assessments, but that the duty of acting as such supervisor of assessments was part of his duties as treasurer of said county. To these counts of the declaration defendants filed their general demurrers which were overruled by the court, and defendants electing to abide their demurrers, judgment was entered against them for the amounts alleged to be due.

The tenth count of the declaration alleges that McCord for the year ending November 30, 1904, kept and retained for his own use the sum of $996.75, which was then and there claimed by said McCord as clerk hire for the year ending November 30, 1904, and which was then and there allowed by said board of supervisors to said McCord for said purpose; that in allowing to McCord the said sum of money the said board of supervisors acted beyond its constitutional powers and without right or authority of law; that the said McCord had been allowed previous to his election and qualification as county treasurer, a certain sum per annum to pay all clerk hire necessary to conduct his said office; that said sum of $996.75 although, claimed by McCord as additional clerk hire, and although unlawfully allowed by the said board as such, was in truth and in fact not additional clerk hire, but was compensation to said McCord as supervisor of assessments of said county. To this count of the declaration defendants pleaded specially averring that for the year ending November 30, 1904, McCord performed the duty of supervisor of assessments in and for said county; that said McCord made a verified report and account to the board of supervisors of all moneys received and disbursed by him wherein he claimed as due to him and credited himself with said sum of $996.75, on account of compensation to himself for his services as supervisor of assessments for the year ending November 30, 1904; that said board was fully informed as to said claim and charge and thereupon audited said account and approved, settled and allowed the said sum of money to said McCord; that in making said allowance, however, said board- of supervisors itself changed the wording of the claim so that the same appeared on its face as clerk hire for the year ending November 30, 1904, because of the fact that much of the. work rendered as supervisor of assessments had in fact been performed by clerks employed by the said McCord. To this plea plaintiff filed a general demurrer, which, upon motion of defendants, was carried back to said count of the declaration. The court overruled = the demurrer to the plea and sustained the same as carried back to said count of the declaration, and plaintiff electing to abide its demurrer judgment was entered in favor of defendants on said count. Cross-errors assigned by appellee question the ruling of the court in sustaining the demurrers carried back to the sixth and tenth counts of the declaration.

Section 10 of article 10 of the constitution of 1870, so far as it is here material provides, as follows: “The county board shall fix the compensation of all county officers with the amount of their necessary clerk hire, stationery, fuel and other expenses, and in all cases where fees are provided for, said compensation shall be paid only out of and shall in no instance exceed the fees actually collected: * * * Provided that the compensation of no officer shall be increased or diminished during his term of office. All fees or allowances by them received in excess of their said compensation shall be paid into the county treasury.”

Section 20 of the Act providing for a tax on gifts, legacies and inheritances and the collection of the same, provides that the treasurer of each county shall be allowed to retain two per cent, on all taxes paid and accounted for by him under the Act, in full for his services in collecting and paying the same, in addition to his salary or fees now allowed by law.

It is insisted on behalf of appellants that even if McCord was not entitled to demand or receive the amounts involved in the first four counts of the declaration, as fees for collecting inheritance taxes, yet, he having presented claims therefor to the board of supervisors and the same having been allowed by the board with full knowledge of the facts and without fraud or mistake, it constituted a voluntary payment of money under a mistake of law and under a claim of right and cannot be recovered back.

The provision of the constitution that the compensation of no officer shall be increased or diminished during his term of office is as effective as a limitation against the right of a county board to allow and a public officer to receive an increased compensation during his term of office, as it is against the authority of the legislature to increase such compensation by statutory enactment. In Parker v. Richland County, 214 Ill. 165, it was held that a county board could not by resolution, adopted after the election of a county treasurer, allow him additional compensation for his services. What may not be done in this respect by legislative enactment or by resolution of a county board, certainly cannot be accomplished by the act of a county board in approving the report and áccount of an official who assumes to credit himself with illegal fees which he retains.

In Cumberland County v. Edwards, 76 Ill. 544, it was held that a county was not estopped by the action of the county board in passing upon and approving a collector’s account, containing charges for illegal fees, and that the county board was powerless to allow as fees or commissions more than the sum fixed by law, and such allowance binds no one. This case was cited with approval in The People v. Parker, 231 Ill. 478.

Upon this question we approve what was said by this court in McLean v. County of Montgomery, 32 Ill. App. 131, as follows: “When a county board attempts to make an allowance not authorized by law, it is acting without jurisdiction, entirely beyond its power, and its acts are utterly void and do not bind the county. The board is the- agent of the county, and when allowing a claim against it over which it has jurisdiction, and the amount to be paid is discretionary, the conclusion reached would no doubt be binding upon the county; but when the board seeks to appropriate funds in the treasury in direct contravention of the statute it exceeds its powers, and in no sense does it estop the county from ignoring and repudiating such action.” The doctrine that a payment voluntarily made cannot be recovered back has no application here. In Allegheny County v. Grier, 179 Pa. 639, it was held that the maxim volenti non jit injuria had no application to the illegal payment of public funds to public officers. Counsel for appellants rely upon the case of The People v. Foster, 133 Ill. 496, as sustaining their contention. That was a suit against the sureties upon the official bond of a sheriff after the expiration of his term of office, to recover certain sums of money allowed to him by the county board for expenses in his quarterly report and account. It was there said in part: “Where the county board, acting within the general scope of its authority, and with knowledge of the facts, settles with the officer, who is guilty of no fraud, concealment or misrepresentation of fact inducing the action of the county board, and pays from the county treasury the amount found due to him upon auditing and examining the officer’s reports, it is to be treated as a voluntary payment of money, and will fall within the principle announced, and no action will lie against the sureties upon the officer’s bond to recover the same back.” It is to be observed that the court expressly limits the application of the principle invoked to those cases in which the county board acts within the general scope of its authority. That the court recognized this distinction in the application of the rule is evident from what is further said in the opinion, as follows: “For aught that appears from any averment of this pleading, the board may have been fully justified in allowing and paying those several sums to the sheriff. But whether that be so or not, it is clear that these allowances to Foster were within the general scope of authority conferred by law upon the county board.” And further it was there said: “The county board is expressly prohibited from increasing the compensation of the officer in any way during his term, and if they should do so, the act will be unauthorized and absolutely void. Here, however, that was not attempted to be done. Whatever they paid him was as part of his compensation previously fixed, as provided by law, and for expenses of his office allowed bv the board.” See also Moffett v. The People, 134 Ill. App. 550.

The court did not err in sustaining the demurrer to the pleas to the first four counts of the declaration and in entering judgment thereon against appellants.

The fifth and eleventh counts of the declaration relate to commissions received and retained by McCord upon taxes collected by him as treasurer of the Jamaica Special Drainage District, for which judgment was rendered against appellants. The Drainage Act (Hurd’s Stat. 1905, 823, par. 146) provides, that the county treasurer of the county in which the proceedings or the organization of a special drainage district are commenced and district organized, shall be the collector- and treasurer of such district. And the same Act in paragraph 148 provides, that the treasurer of such special drainage district shall receive for his services such sum as-may be fixed by the commissioners, not to exceed two per cent, of moneys collected by him, and that all fees and allowances shall be paid out of the .funds of the district. McCord was treasurer of the Special Drainage District by virtue of his office as county treasurer and the commissions received by him upon moneys collected for taxes for drainage purposes accrued to him by virtue of his office as county treasurer and as compensation in part for 1ns services as such officer. It was his duty to report the amount of such commissions received by him, to the county board as money belonging to the county, and as against which he was entitled to credit his salary as theretofore fixed by the board. Walker v. The People, 95 Ill. App. 637. When the commissions upon the taxes for drainage purposes accrued they no longer belonged to the drainage district but became the property of Vermilion county as fees earned by one of its officers.

Counsel for appellants make no argument in support of their assignments of error upon the action of the court in entering judgment against appellants upon the eighth and ninth counts of the declaration which involve the receipt and retention by McCord of $2,000 for salary as supervisor of assessments for 1905 and 1906, and said assignments of error must, therefore, be regarded as having been waived.

The seventh count of the declaration relates to the receipt and retention by McCord of $415 as salary as supervisor of assessments from July 1, 1903, to November 30, 1903, at the rate of $1,000 per year, and stands upon no different footing than the claim of $2,000 for salary as supervisor of assessments for 1905 and 1906, above referred to, except that as to said seventh count of the declaration appellants pleaded an auditing and settlement by the county board of - McCord’s report and account thereof. This plea we have shown was ineffectual as a bar to the action. It was held in Foote v. Lake County, 206 Ill. 185, that the section of the statute providing that in certain counties the county treasurer shall be ex officio supervisor of assessments, did not create a new office, but added new duties to the office of county treasurer, and that the compensation of a county treasurer as fixed by the county board, according to law, included payment for services as ex officio supervisor of assessments. If McCord was not lawfully entitled to any additional compensation for his services as supervisor of assessments for the years 1905 and 1906, the fact that the county board audited, and allowed his claim for salary as such supervisor of assessments for the fractional part of a year within his term of office did not determine his right to such salary.

The sixth count of the declaration relates to the receipt and retention by McCord of $44.80 per year, for each of the four years of his term of office, for mileage between the city of Springfield and the city of Danville in making settlement with the state treasurer of the state taxes collected in Vermilion county. Section 21 of chapter 53, entitled “Fees and Salaries,” provides in part, that county collectors shall be allowed in settlement of state taxes with the auditor ten cents per mile for each mile of necessary travel in going to and returning from the seat of government, for the purpose of paying over such tax. The declaration alleges that McCord did not personally go to Springfield, nor did any person go for him, to make settlement with the state treasurer, but that such settlement was made by correspondence and checks or vouchers sent through the mail, and these allegations are admitted by the plea, which merely avers the auditing and settlement by the county board of McCord’s claim therefor. The provision of the statute authorizing the payment to county collectors of the mileage in question was manifestly intended to cover the actual expense involved in going to and returning from the seat of government. If neither the county collector nor anyone for him, goes in person, no mileage accrues within the meaning of the statute, and no authority exists for its payment, but if mileage is paid and received by the county collector under such circumstances it does not necessarily follow that it belongs to the county. The money was paid out of funds which belonged to the state, not to the county, and if improperly paid, the state alone can recover it back. The court did not err in entering judgment in favor of appellants upon the sixth count of the declaration.

The tenth count of the declaration relates to the claim by and allowance to McCord, of the sum of $996.75 for additional clerk hire for the year ending November 30, 1904. This count of the declaration alleges that McCord had been allowed previous to his election and qualification as county treasurer a certain smn per annum to pay all clerk hire necessary to conduct his said office, and that said sum of money was not received by McCord as additional clerk hire but was in fact received by him as compensation for his services as supervisor of assessments. The plea to this count of the declaration does not deny the allegation of the declaration in that regard, but avers that McCord claimed said sum of money as compensation for services as supervisor of assessments and that the county board changed the wording of the claim so that the same appeared upon its face as for additional clerk hire, and that the claim was allowed in fact, as compensation to McCord for his services as supervisor of assessments and not as additional clerk hire. It is too clear to require argument that the county board could not do indirectly what it was not lawfully authorized to do directly. No shift or device should be permitted to prevail to accomplish an unlawful end. The People v. Smith, 130 Ill. App. 407. We think the court erred in refusing to enter judgment against appellants upon the tenth count of the declaration.

The judgment of the Circuit Court against appellants upon the first, second, third, fourth, fifth, seventh, eight, ninth and eleventh counts of the declaration and in favor of appellants upon the sixth count of the declaration will be affirmed, and the judgment of said court in favor of appellants upon the tenth count of the declaration, will, upon the cross-errors here assigned, be reversed, and the cause will be remanded for further proceedings not inconsistent with this opinion.

Affirmed in part and reversed in part and remanded.


text:
    Samuel B. Mason, Executor, Appellant, v. Bloomington Library Association et al., Appellees.
    1. Trusts—when rule against perpetuities not violated. A fund provided for the purpose of caring for a burial lot with no limit as to duration, does not violate the rule against perpetuities.
    2. Trusts—when cy pres doctrine operates to prevent failure of. The fact that for any reason an art studio provided to be established cannot be established by the institution or by the individuals mentioned by a testator, will not operate to render the bequest void but the same will be effectuated by a court of equity under the doctrine cy pres.

    3. Appeals and errors—of what complaint cannot he made. A party cannot complain of the action of the court with respect to a matter which does not concern his interests.

      Bill to construe will. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    Barry & Morrissey, for appellant.
    E. M. Prince, R. E. Williams and Louis Fitz Henry, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a bill to construe the last will and testament of Emily T. Perry. The said testatrix was the only child and only heir at law of Bacliel P. Bussell, who died December 1, 1883, leaving a last will and testament, which was duly admitted to probate and which contained among other provisions, not now material, the following:

“I give and bequeath to my daughter, Emily T. Perry, the use, occupation and disposition of any of my effects, excepting what is before devised herein, during her natural life; requiring her, in case she should die childless, to donate whatever may remain of said estate to some benevolent object, such as she may select.”

It is not important to determine whether this provision of the will of Bacliel P. Bussell was void for uncertainty, because Emily T. Perry was the sole heir of her mother, and if the bequest was void for such reason, she would take the property absolutely as intestate estate, upon the death of her mother. Emily T. Perry died childless April 1, 1894, leaving her husband, Nelson P. Perry, as her only heir at law, and leaving a last will and testament, which was executed April 27, 1892. The clauses óf the will of Mrs. Perry material to the questions here involved, are as follows :

1. “I direct first that all my lawful debts and funeral expenses shall be paid and that the sum of five hundred ($500) dollars shall be placed in the hands of a proper person as trustee (John H. Bussell of Middletown, Connecticut, being hereby empowered to name and appoint such trustee) from which said sum of five hundred ($500) dollars there shall be expended so much as such trustee shall consider necessary and proper for a monument at my burial place, and the residue of such sum of five hundred ($500) dollars shall, by such trustee, be put and kept at interest and such interest shall be annually expended in the care of the family burial lot, where I shall be buried. ’ ’

7. “I give, devise and bequeath in trust to Jonathan H. Cheney, of Bloomington, as trustee, six thousand ($6000) dollars upon the following trusts, viz: The said trustee shall keep and put said sum at interest upon good security, during the lifetime of my husband, Nelson P. Perry, and shall collect the interest therefrom and pay the same as collected to my said husband during the lifetime of my said husband, for his support, and no part of said fund, either principal or interest, shall ever be subject to or liable for the claim or claims of any creditor or creditors of my said husband in the hands of said trustee, or otherwise; and said trustee shall never in anywise be answerable to any creditor of my said husband for or on account of any of said fund, either principal or interest.”

9. “The residue of my estate, including therein the six thousand ($6000) dollars hereinbefore devised in trust to Jonathan H. Cheney, after said trust shall have terminated by the death of my said husband, I give, devise and bequeath to said Jonathan H. Cheney and Chalmers C. Marquis, trustees, in trust for the following uses and purposes, viz: To establish in connection with the Bloomington Library Association an art studio or art gallery and studio, meaning thereby a suitable place wherein works of art will be collected, kept, preserved or exhibited for the advancement of education in art. The conduct, management and- supervision of which art gallery and studio shall be in charge of the officers of the Bloomington Library Association. The said art gallery or studio shall be named the ‘Bussell Art Annex’ or some suitable name or appellation of which the name Bussell shall be a part, in commemoration of my mother, Rachel P. Russell. The said trustees may, in their discretion, turn over to said Library Association, the whole or a part of the principal sum of said fund, for the use aforesaid, or may put and keep the whole, or a part thereof at interest upon good security, collect the interest thereof and pay the same as collected to said Bloomington Library Association for the use as aforesaid.”

By the last clause of her will the testatrix nominated her husband, Nelson P. Perry, and Thomas C. Kerrick as her executors, and they, thereafter, duly qualified as such, and in 1896 filed their original bill to construe said will. The cause was referred to the master but before any hearing was had all the files, together with the evidence taken before the master, were destroyed by fire in 1900. While the cause was pending the executors, by agreement of the parties, sold the real estate, which formed the bulk of the estate involved, and held the proceeds to abide the result of the suit. Nelson P. Perry died January 29, 1905, leaving his last will and testament whereby he bequeathed the residue and greater portion of his estate to his sister, of which will appellant, Samuel B. Mason, was appointed executor. Thereafter, Thomas C. Kerrick, the surviving executor of the will of Mrs. Perry, was granted leave to supply the files and to amend and supplement the original bill. The Bloomington Library Association filed its answer claiming the residue of the estate under the ninth clause of the will, and appellant, as executor of Nelson P. Perry, filed his answer claiming the same fund as intestate property of the testatrix. Answer was also filed by the city of Bloomington, wherein it averred that the Bloomington Library Association had long since ceased to conduct a library and that all of its library and property had been sold and transferred to the Withers Public Library which was duly created under an ordinance of the city of Bloomington, and claimed that said city was entitled to said fund. Upon the hearing the chancellor entered a decree that the real estate mentioned in the will of Emily T. Perry belonged to her in fee; that there was in the hands of the surviving executor the sum of $4,972.56; that out of said fund there should be set aside $406 to comply with the first clause of said will, the sum of $94 having been expended by the executors for a monument; that John H. Russell had refused to appoint a trustee under said first clause; and that the residue of said fund, after paying costs of suit, should be turned over to trustees for the benefit of the Bloomington Library Association for the purpose of carrying’ out the provisions of the ninth clause of the will. The decree then appoints Samuel B. Mason, trustee, to receive the sum of $406 for the purpose of complying with the provisions of the first clause, and appoints J. H. Burnham and H. H. Green, trustees, to serve without compensation for the Bloomington Library Association, to receive from Thomas C. Kerrick, executor, the balance of the sum of $4,972.56, after deducting said sum of $406 and costs of- suit, and directs said executor to pay to said trustees said sum of money.

It is first urged on behalf of appellant that the trust sought to be created by the first clause of the will whereby the testatrix bequeathed the residue of $500 remaining unexpended after the purchase of a monument, to a trustee to be appointed by John H. Russell, to be kept at interest and such interest annually expended in the care of the family burial lot where the testatrix should be buried, is a private trust in contravention of the rule against perpetuities, and, therefore, invalid and void.

In this age the general public manifests an increasing interest in ornamenting and caring for places set apart for the burial of the dead, and it is a matter of common knowledge that funds are frequently provided to be held in trust for that purpose. Cemeteries are cared for and beautified by trimming the grass and cultivating foliage and flowers as are parks and other places of resort for the general public. The legislature has recognized the public interest and demand in this regard by enacting a law expressly authorizing” gifts and bequests to directors of cemetery societies or associations, of real or personal property to be held in trust by such directors and the income used for the improvement, maintenance, repair, preservation and ornamentation of burial lots, vaults, tombs and other structures in cemeteries. Rev. Stat. 1905, 223.

In Green v. Hogan, 153 Mass. 462, where the same question was involved, it was held that the enactment of a similar statute in Massachusetts indicated • that the legislature of that state regarded the maintenance and improvement of cemeteries and cemetery lots,whether in' a legal sense they were public or not, as a matter which concerned public interests, and thereby intended that .property might be lawfully given and held in perpetual trust for the preservation of burial lots in cemeteries, and such a trust was held to be valid. In Perry on Trusts, sec. 706, it is said: “It is now settled that a trust to build, maintain and keep in repair tombs, vaults and burying-grounds of the donors, their families or parishes, are so far charitable that they will be carried into effect.” We are.of opinion that the trust created by the first clause of the will is valid, at least to the extent necessary to constitute a sufficient fund for the purposes named.

It is next insisted that the ninth clause of-the will is invalid and void because it makes a bequest in favor of the Bloomington Library Association, a private corporation authorized to issue capital stock to the amount of $100,000 and to make annual distribution of the net rents and profits among its stockholders, and because it provides that the art studio or art gallery and studio is to be established in connection with said Bloomington Library Association, and that the conduct, management and supervision of said art-gallery and studio shall be in charge of said association.

The Bloomington Library Association which succeeded to all the property rights of a voluntary association theretofore existing known as the Ladies Library Association of Bloomington, was incorporated under and by virtue of an Act of the legislature approved February 23, 1867, for the purpose, as stated in said Act, “to establish and maintain a library and reading room, to procure literary and scientific lectures and otherwise promote the intellectual improvement of its members.” The association was empowered by the Act to create a capital stock not to exceed in amount $100,000, divided into shares of $50 each, for the purpose of promoting its objects, including the erection of a building for its use, and after the payment of all 'expenses to divide any overplus arising from the rents and profits of any real estate and buildings purchased or built with such capital stock, annually pro rata among the stockholders. The Act was declared to be a public Act.

On June 1, 1885, one Sarah B. Withers conveyed to said association a certain lot in the city of Bloomington, upon the condition among others, that said association should erect or cause to be erected upon said lot a building suitable for placing therein its library for the use of the same by its members and the public under the usual, and customary regulations adopted by such organizations. The said association accepted said conveyance and erected a building on the premises at a cost of $20,880, and equipped the same with books, pictures and furniture at a cost of about $25,000, and used and conducted the same as a public library and reading rooms until June 18, 1894. On that day said association conveyed to the Board of Directors of the Withers Public Library, organized under the laws of the State of Illinois and an ordinance of the city of Bloomington, all of its property of every character, in trust, upon the condition, among others, that the same should be used as a free public library for the use and benefit of the inhabitants of the city of Bloomington forever, and said property has since been and is now so used.

Since June 18, 1894, the Bloomington Library Association has ceased to exist as a going concern so far as the exercise by it of its charter powers is concerned. It has had and has no property of any consequence, and has not conducted a library, nor has it any facilities for conducting and managing an art studio or art gallery and studio.

The bequest in the ninth clause of the will here involved does not create a trust for the benefit -of the Bloomington Library Association, as is insisted by counsel for appellant. The bequest is to certain trustees, in trust, “to establish in connection with the Bloomington Library Association, an art studio or art gallery and studio * * * wherein works of art will be collected, kept, preserved or exhibited for the advancement of education in art.” A charity has been authoritatively defined, as follows: “A charity in a legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts .under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by .erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show it is charitable in its nature. ’ ’ Jackson v. Phillips, 14 Allen 556; 2 Perry on Trusts, sec. 697; Crerar v. Williams, 145 Ill. 625; Kemmerer v. Kemmerer, 233 Ill. 327.

In 1892, when the will was executed; and in 1894, when it became effective, the Bloomington Library Association was conducting a public library for the use of the public. The testatrix was 'then an active member of the association. The bequest was in trust for the “advancement of education in art,” not alone of the members of the association, but of the patrons of the library, as it was then conducted, viz: the general public. There are no words in the will limiting the benefits of education in art to any particular class, or to the members of any particular organization, but the benefits intended to be thereby conferred in that regard are general. The provisions of the will directing that the art studio be established in connection with the Bloomington Library Association and that the officers of said association conduct, manage and supervise the same, are merely incidental to the main purpose and object of the gift, which is the establishment of an art studio or art gallery and studio for the advancement in education of art. The fact that for any reason the art studio cannot be established in connection with the association and cannot be managed and controlled by the officers of the association will not operate to render the bequest void. If the main purpose of a charitable bequest is capable of accomplishment, although not in the precise manner contemplated by the donor, a court of equity will effectuate the purpose cy pres.

“If a fund is given in trust for a charity, with a direction to accumulate beyond the legal period, or with any other illegal or impossible direction as to the incidental management of the funds, the court will direct a management that is legal and possible, cy pres the original direction; and this on the ground that the donor did not intend his charity to fail because one of the incidental directions could not be carried out.” 2 Perry on Trusts, sec. 728; Ingraham v. Ingraham, 169 Ill. 432; Grand Prairie Sem. v. Morgan, 171 Ill. 444; Hauser v. Harris, 42 Ill. 425.

It is insisted that in the absence of any showing that Jonathan H. Cheney and Chalmers C. Marquis, the trustees appointed by the ninth clause of the will, had resigned or had refused to serve, the chancellor erred in appointing J. H. Burnham and H. H. Green as trustees to act under said clause of said will. As the trustees named in the will do not object to the substitution, appellant cannot be heard to complain.

We are of opinion that the finding of the chancellor that the rest and residue of the funds in the hands of the executor, after paying the sum of $406 to a trustee' under the first clause of the will and the costs of suit, should be turned over to trustees for the benefit of the Bloomington Library Association for the purpose of carrying out the provisions of clause nine of the will, was erroneous. As has heretofore been stated •that association since June 18,1894, has not conducted a library and has had no property or facilities for so doing. It has nothing with which an art studio or art gallery and studio can be connected, and its officers, as such, have no authority or control over or with respect to any property which can be used to carry out the provisions of clause nine of the will. The incidental conditions therein prescribed by the testatrix, relating to the establishment of a place in connection with the Bloomington Library Association and the management and control of the charity by the officers of said association, have become and are impossible of performance, and the court should, therefore, have effectuated the charitable use cy pres. The record before us does not authorize this court to enter more specific directions with reference to the manner in which the intention of the testatrix should be effectuated upon an application of the doctrine of cy pres.

The decree of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


author: Mr. Justice Puterbaugh

text:
    John Hoskins, Appellee, v. Sarah Augusta Mann et al., Appellants.
    Bill of interpleader—when should he dismissed. A bill of inter-pleader collusively interposed should be dismissed, it appearing in this case that the stakeholder complainant was not indifferent, that he had never in fact been harassed by contending claimants and. that the bill was in reality filed in the interests .of one of the parties defendant;
    Bill of interpleader. Appeal from' the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    J. B. Titus and R. M. Peadro, for appellant.
    Craig & Kinzel, for appellee.
   Mr. Justice Puterbaugh

h delivered the opinion of the court.

The appellee, John Hoskins, filed a bill of inter-pleader in the Circuit Court against Sarah A. Mann, Phoebe D. Hoskins and Musetta Henton, the object of which was to have determined which of said defendants' was entitled to certain rents due from the complainant for the use and occupation of 160 acres of land for the year beginning March 1, 1906, for which he had executed a promissory note to one John Henton, for the sum of $720.

The facts out of which the controversy arises, briefly stated, are as follows: In the year 1904, John Henton, who was the owner of several tracts of land in Moultrie county, conveyed to each of his grandchildren, Sarah A. Mann, Phoebe D. Mann, and Myrtle M. Mann, a tract of 80 acres of land by deeds dated August 1, 1904, which were to be delivered to the grantees upon his death. From the date of the deeds until his death on July 16, 1906, he continued from year to year to collect rent for said tracts of land. On November 14, 1905, he rented to appellant, Hoskins, who had intermarried with Phoebe D. Mann, the tracts of land theretofore conveyed by him to Phoebe D. Hoskins and Sarah A. Mann, for the year beginning March 1, 1906. In payment of rent for the same, Hoskins executed his note payable to John Henton for $720, payable December 26, 1906. On March 21, 1906, he rented the tract conveyed to Myrtle M. Mann for the term of one year to one William Spaugh, who executed and delivered to him in payment of the rent to March 1,1907, a note for $480, payable December 25, 1906, which note, at the request of Henton, was made payable to Musetta Hen-ton, his dáughter-in-law. During the lifetime of John Henton, he delivered said notes to the said Musetta Henton in consideration of care and attention rendered him by her. A bill of interpleader similiar to the one under consideration was also filed by Spaugh against Musetta Henton. Sarah A. Mann, Phoebe D. Hoskins and Myrtle M. Mann, by their answers and cross-bill, claim that they were entitled to the rent for said premises by virtue of the deeds made to them by their grandfather, which were filed for record a day or two after his death. Musetta Henton, by her answer, claimed title to said notes by virtue of the delivery of the same to her by John Henton prior to his death.

Decrees were rendered upon hearing, finding Musetta Henton to be the owner of the notes and order- ■ ing the respective complainants to pay the amounts due thereon to her. To reverse the decree in the cause to which they were defendants, this appeal is prosecuted by Sarah A. Mann and Phoebe D. Hoskins.

It will not be necessary to determine the other questions involved for the reason that the evidence develops that both the present bill and that of Spaugh were filed as the result of collusion between the complainants and Willis Mann, the father of the defendants, Phoebe D. Hoskins, Sarah A. Mann and Myrtle M. Mann. Willis Mann testified that acting in the interest of his daughters, he employed the attorneys to file the bills; that he told complainant Hoskins that he “was going after this rent and that he thought it would be best to do it this way;” that he employed the solicitor to file the bills in the interest of his daughter, Mrs. Hoskins, and “to look after her interests all the way through.” That she had never claimed the rent due from her husband, the complainant, until after the bill was filed. Upon the hearing of his bill William Spaugh testified as follows: “I am the party who filed this bill of interpleader in this case; it was drawn up and fetched out to where I was; I did not employ any lawyer to bring the suit; Willis Mann got me to do it; he came out to my place to see about it and I told him all right, that I would come in with him; he said it would be to my best interest to take this proceedings, so I wouldn’t have to pay the rent twice, or something like that; we went up to Mr. Peadro’s office and he asked me if I had rented it and farmed it and I said I had given my note and I told him who the note was given to; I don’t know that I told him that I didn’t know why the note was given that way. I think I told him I had given the note at the request of Mr. Henton that way; Mr. Mann asked me to file the bill; he said he would put up for it when I said I didn’t want to get into law; Myrtle May Mann never asked me for the rent, nor neither has Mrs. Henton; I did not aim to pay the rent to anybody until I got the note; I am ready to pay it this afternoon, if I get my note; I told Mr. Mann I would come in with him and that I did not want to pay the note but once; he said it would not cost me anything; he did not just tell me that he would pay the attorney’s fees.”

The respective bills of Hoskins and Spaugh allege, in substance, that the defendant, Musetta Henton, is claiming to be the owner of the note therein involved and entitled to receive the sum due thereon, and that the other defendants were demanding from the complainant the rent for which the note was given; that the complainant does not collude with any of the parties, nor exhibit his bill at the request of either or any of them but solely of his own free will to avoid being molested, vexed or harassed, etc. To each of said bills is attached the affidavit of the complainant to the saíne effect. The foregoing averments and affidavits are essential to a bill of interpleader in order to prevent an abuse of the proceeding by issuing the same collusively to give an undue advantage to one of the contending parties, and therefore must be proved as alleged. Where an affidavit of non-collusion is filed, the question of collusion is reserved until the hearing when it may be raised. It will be seen from the testimony quoted that the proceedings were in reality instituted, not by the complainants as indifferent stakeholders to avoid being harassed, but by the father of several of the defendants and in their interest. It further appears that neither of the defendants had, prior to the filing of the bill, demanded payment from the complainant of the note or the sum of money in controversy, or in any manner harassed him, and further that the attorney who filed the bill was employed by Willis Mann, who agreed to indemnify the complainant against the payment of any costs or solicitor’s fees. These facts clearly show an attempted abuse of the proceeding and it was the duty of the chancellor when the same was made to appear, to have dismissed the bill for the want of proof sustaining essential averments of the same.

The decree under consideration will b'e reversed and the cause remanded with directions to the Circuit Court to enter a decree dismissing the bill upon hearing for want of equity.

Reversed and remanded with directions.


author: Per Curiam.

text:
    William Spaugh, Appellant, v. Myrtle M. Mann, Appellee.
    This case is controlled by the decision in Hoskins v. Mann, ante, p. 49.
    Bill of interpleader. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded with directions.
    Opinion filed April 21, 1908.
    J. B. Titus and R. M. Peadro, for appellant.
    Craig & Kinzel, for appellee.
   Per Curiam.

This is an appeal from a decree of the Circuit Court upon a bill of interpleader filed by appellant and against appellee and Musetta Henton.

The questions involved are sufficiently stated in Hoskins v. Mann et al., ante, p. 49. In accordance with the views there expressed the decree of the Circuit Court will be reversed and the cause remanded with directions to the Circuit Court to dismiss the bill upon hearing for want of equity.

Reversed and remanded with directions.


text:
    Musetta Henton, Appellee, v. George W. Henton, Appellant.
    1. Negotiable instruments—what consideration sufficient to support. The existence of a claim founded upon an equitable duty such as would be enforced by a court of equity, is a sufficient consideration for a promise to pay it and such promise may be enforced in a court of law.
    2. Negotiable instruments—what consideration sufficient to support assignment. Services rendered and to be rendered in the future are sufficient by way of consideration to support the assignment of a promissory note.

      Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Voigt & Bennett, for appellant.
    Craig & Kinzel, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon the trial of this cause by the court without a jury, appellee recovered judgment in assumpsit against appellant for $465, being the amount of principal and interest due upon two promissory notes dated December 25, 1905, for the sums of $160 and $296, respectively, executed by G. W. Henton, payable to the order of John Henton and by him assigned and indorsed to appellee. In addition to the general issue, spécibl pleas were filed to the declaration, the first three "of which deny the validity of the alleged assignment and indorsement of the notes and aver that the payee was not of sound mind at the time he indorsed and assigned the same. The fourth special plea in substance alleges that the consideration of the notes had failed 'except as to the sum of $171, of which fact appellee had full notice, and that the same were assigned to her without any valuable consideration. The evidence discloses the following facts: John Henton was the father of appellant George W. Henton, Melvin Hen-ton and Mrs. Mack Tudor. In July, 1903, he executed deeds to said children, conveying to each, without consideration, a tract of 160 acres of land for life, with remainder to the heirs of their bodies, respectively. About a year thereafter he delivered said deeds to Mrs. Tudor and directed her husband, Mack Tudor, to have them placed on record. Prior to this time each of said children had been paying their father rent for the tracts of land so conveyed to them, respectively. There was evidence which fairly tended to show, and the trial judge was not unwarranted in finding, that at the time of the delivery it was understood by the parties that each of the grantees was to continue as before to pay rent to the grantor, their father, during the remainder of his life,, and that each of them did so. Pursuant to said arrangement on December 25, 1905, appellant executed and delivered to his father, John Henton, the notes in suit in payment of the rent of the land theretofore conveyed to him for the year beginning March 1, 1906. In January or February, 1906, John Henton assigned and delivered said notes to appellee, Musetta Henton, the wife of his son, Melvin. The evidence in the record fails to show as alleged in the pleas that John Henton was not of sound mind when he executed and delivered the notes.

The contention first argued by appellant is that there was no consideration for the notes as between the maker and payee. We think that the conveyance of the real estate by John Henton to appellant prior to the execution of the notes, amounted to a sufficient consideration for the promise by appellant to his father to pay rent, notwithstanding the land had been already conveyed to him without any reservation in the deed. The existence of a claim founded upon an equitable duty such as would be enforced by a court of chancery, is a sufficient consideration for a promise to pay it and such promise may be enforced in a court of law. 6 Am. & Eng. Ency. Law, 710.

It is next argued that appellee paid no valuable consideration for the notes. There is evidence tending to show that John Henton was an aged man in ill-health and for several years prior to his death had made his home with Melvin Henton and appellee, his wife; that he required constant and particular attention and assistance, which was given him, at his request, by appellee; and that the notes were given to her in return for such services. Such facts created at least a moral obligation upon the part of John Henton to compensate appellee for services of the character mentioned already rendered and to be rendered in the future, so long as he remained under her care, and constituted a sufficient consideration for the transfer of the notes to appellee. Finck v. Green, 225 Ill. 304. Our views are in substantial accord with those of the trial court, as expressed in the proposition of law submitted by appellant and modified and held by the court.

The judgment will therefore be affirmed.

Affirmed.


text:
    Andrew J. Baldwin, Plaintiff in Error, v. George M. Smith, Defendant in Error.
    1. Replevin—when owner may take possession. The lawful owner of personal property has the right in person or by agent to take possession of property owned whenever and wherever it may be found, if such possession may he taken in a lawful and'' peaceable manner.
    2. Replevin—what essential to recovery in action for. The plaintiff in an action of replevin must recover upon the strength of his own title.
    3: Replevin—effect given to return of officer. In an action of replevin the return of the officer upon the writ is conclusive as between the parties and cannot be contradicted or avoided in the suit for the purpose of defeating any rights which may have been acquired on the strength of it.
    Replevin. Error to the Circuit Court of Pike county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded with directions.
    Opinion filed December 7, 1907.
    Rehearing denied May 22, 1908.
    W. E. Williams, Paul F. Grote, William Mumford and W. H. Crow, for plaintiff in error.
    Jefferson Orr and George C. Weaver, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in replevin by plaintiff in error against defendant in error for the recovery of the possession of certain cattle alleged to have been unlawfully taken from the possession of plaintiff by the defendant. A verdict was returned in the Circuit Court finding the issues for the defendant. Motions, by the plaintiff for a new trial and in arrest of judgment were overruled, and a judgment awarding the return to the defendant of the property described in the declaration was entered. To reverse such judgment this writ of error is prosecuted by the plaintiff.

The material facts involved, briefly stated, are the following: The plaintiff, who is 76 years old, was married in 1897 to his present wife, Esther Baldwin, then a widow with several children, and the owner of a farm of 140 acres and some personal property. In 1902, the parties ceased living together, plaintiff leaving the farm and his wife continuing there. While they were both upon the farm considerable personal property was accumulated including a large number of hogs and cattle. On April 2, 1903, plaintiff filed a bill in equity against his wife alleging the existence of a partnership between them in the conduct of the farm and praying an accounting. On August 8th, thereafter, the plaintiff went to the farm in the nighttime, drove away the cattle in controversy and placed them in the custody of one Willard, who lived about nine miles from the Baldwin farm. Upon discovering that the cattle had been taken away, Mrs. Baldwin on August 9th procured a warrant to issue against plaintiff and Willard upon the charge of lar‘ceny of the cattle. The warrant was delivered to the defendant who was the sheriff of the county. The defendant accompanied by two of his deputies then proceeded to the Willard farm where they found the plaintiff and Willard in charge of the cattle. After some conversation the cattle were surrendered to the defendant and were by him on the same day delivered to Mrs. Baldwin. On the following day the present suit was instituted by the plaintiff for the recovery of the cattle. A writ of replevin was issued to the coroner of the county, who, as appears from the return of the writ, served the same by reading it to the defendant and also by “seizing: from the possession of the defendant” and delivering to the plaintiff the cattle described therein, with the exception of four head which he was unable to find. The sole plea of the defendant being property in Esther Baldwin, the only material and proper issue submitted to the jury under the pleadings was whether the rights of ownership and possession of the property in controversy were in the plaintiff as/against the world. We shall not occupy the time and space necessary for a review of the evidence relating to the ownership and right of possession of the property at the time it was surreptitiously taken from the defendant by the plaintiff. It will suffice to say that upon full consideration of the same, we are satisfied that the jury were fully warranted in finding that the cattle in question were the separate property of Mrs. Baldwin; that the plaintiff had no legal or equitable right either of ownership or to the possession thereof, and that the seizure by him was unlawful.

In such state of facts Mrs. Baldwin had the right to, in a lawful and peaceable manner, retake possession of the cattle by herself or agent whenever and wherever they might be found. It is insisted by plaintiff that the evidence shows that the defendant acquired possession by duress, intimidation, false imprisonment and abuse of process, and that the law will not protect such possession; that mere possession is sufficient as against a wrong-doer. The evidence is conflicting as to whether the defendant made use of the warrant and his official position to coerce the surrender of the cattle, or whether he acted merely in a private capacity as the agent of Mrs. Baldwin and made no use of the warrant for that purpose. The jury were instructed that if they believed from the evidence that the defendant obtained possession of the cattle by threats or intimidation, such taking was forcible and unlawful. The jury found such issue in favor of the defendant and we believe it was justified in so doing. It is also contended that inasmuch as the evidence shows that the cattle were not in the possession or control of the defendant at the time of the issuance of the writ, but that he had theretofore delivered them to the plaintiff, the court erred in ordering the return of the property to him. It is well settled that in an action of replevin, the plaintiff must recover upon the strength of his own title, and where his title is denied, the burden of proof is upon him to show a general and special property in the goods themselves. The question raised by the pleadings in the present case is not whether the right of property was in Esther Baldwin, but whether the right to immediate possession was in the plaintiff. Pease v. Ditto, 189 Ill. 456. The plaintiff failed to show any title or right to the possession of •the property in himself and such was the effect of the verdict returned which verdict was responsive to the issues and warranted by the evidence.' The right of property having been adjudged against the plaintiff, the court properly gave judgment for a return of the cattle to the defendant as is provided by the statute.

In an action of replevin, if the defendant ihsists upon a return he must contest the plaintiff’s right of •recovery. This he may do by pleading specially that the right of property is in some one other than the plaintiff. “Tiie object of these allegations by the defendant is to .procure a return of the property, and to impose oh the plaintiff the necessity of proving title to sustain his action. These allegations, when made, require the plaintiff to make out his right. If the defendant pleads property in himself or a third person, he must in the same plea traverse the plaintiff’s allegation of right. In such case the allegation of property in the defendant, or a third person, is only considered as inducement to the traverse of the plaintiff’s right, and the plaintiff must take issue on the traverse and not on the inducement. On such an issue, the substantial matter in dispute is the right of the plaintiff to the property. The plaintiff holds the affirmative of the issue, and must sustain his right, or fail in the action. What the plaintiff must prove,' the defendant is at liberty to disprove. This he may do, by showing a state of facts inconsistent with the plaintiff’s claim of right.” Anderson v. Talcott, 6 Ill. 371; Constantine v. Foster, 57 Ill. 36.

The contention that inasmuch as Smith admitted in his testimony that he did not have possession of the cattle at the time the writ was served upon him, he was not entitled to any other verdict than that of not guilty and that the court erred' in awarding to him a return of the property, is untenable. The indorsement of the coroner upon the writ as returned into court recites that he had served the writ by reading the same to the defendant “and also by seizing from the possession of the defendant George M. Smith” and delivering to the plaintiff the property described in the writ.

Such return was conclusive between the parties and cannot be contradicted or avoided in the suit for the" purpose of defeating any rights which have been acquired on the strength of it. In other words, it is protected the same as any other official record. Cobbey on Beplevin, section 661 and cases cited. As between the parties the officer’s return that he took the goods-out of the defendant’s possession is conclusive. Ibid.; Sams v. Armstrong, 8 Mo. App. 573. While the return if incorrect might have been amended in accordance with the facts on due notice and a proper showing, no steps to that end were taken and it was therefore conclusive as made. Ibid., sec. 663.

Although we do not fully approve of all the rulings of the court upon the given instructions, the merits of the case appear to be so clearly with the defendant that we are satisfied that the plaintiff was not prejudiced by any inaccuracies contained therein. When-read together they state the law applicable to the facts with substantial accuracy. Those refused were either covered by others given, or were not in accord with the view of the law herein expressed.

It is also insisted that Esther Baldwin, being the wife of the plaintiff, was an incompetent witness. Inasmuch as the litigation involved her separate property she was clearly a competent witness under tie statute. Cassem v. Heustis, 201 Ill. 208; Funk v. Eggleston, 92 Ill. 515.

It is further urged that the judgment is erroneous because it directed the return of more property than was actually seized. It is admitted by defendant that the judgment is incorrect in this respect and that a return should have been awarded for but twenty-four instead of twenty-nine head of cattle.

The judgment of the Circuit Court will therefore be reversed and the cause remanded with directions to so amend the said judgment as to award a return only of the property described in the return to the writ of replevin.

Reversed and remanded with directions.


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    Carl P. L. Ott et al., Appellees, v. Leopold Flinspach, Administrator, Appellant.
    1. Statute op Limitations—when indorsement upon note does not toll. Indorsement of a payment by the payee does not toll the running of the statute in the absence of corroborative evidence of such payment.
    2. Statute op Limitations—what tolls running of 10-year period. While a new promise must be in writing to toll the running of the 10-year statute, a payment made upon a note is sufficient to toll the statute, if established by parol evidence.
    3. Statute op Limitations—when payment by executor tolls. A payment by an executor of a deceased maker of a note will toll the statute, if such executor had power to pay the just debts of the deceased.
    4. Tenants in common—when co-tenant cannot enforce face value of claim. A tenant in common who purchases a lien claim against the common estate can only enforce the same as against his co-tenants to the extent of the amount paid for such claim with legal interest.
    Bill for partition. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded with directions.
    Opinion filed December 7, 1907.
    Rehearing denied, May 20, 1908.
    John E. Pollock and John Gr. Boeker, for appellant.
    Jesse E. Hoffman, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This-is a bill by appellee for the partition of certain real estate in the city of Bloomington. Appellant, a defendant to the original bill, filed a cross-bill in the cause seeking to foreclose a mortgage on a part of the premises, given to secure the payment of a promissory note held by his intestate. The chancellor held upon the hearing that the note in question was barred by the Statute of Limitations and dismissed the cross-bill for want of equity.

The note involved, which is for the principal sum of $1,500, is signed by Louis Flinspach, is payable to the order of Collon D. James, on the first day of April, 1877, with interest at the rate of ten per cent, per annum from date until paid, interest payable semiannually, and is secured by a mortgage of even date therewith upon the property in question and executed by Flinspach and wife to James. It bears the following indorsements:

1. “Received interest on the within bond in full to April 6,1885. Collon D. James.”

2. “For value received I hereby assign and transfer the within bond to Francis X. Wochner. C. D. James.”

3. “Nov. 2, 1893. There is now due on this note and the mortgage that secures it the sum of $1,839.05.”

4. “Aug. 27, 1903. Received of Katherine Flinspach fifty and no 100 dollars of the principal on within note. The said Katherine Flinspach being executrix of the will and testament of Louis Flinspach, deceased.”

5. “Without recourse. Albert Wochner, executor of Francis X. Wochner.”

The only question presented by this appeal is whether the note in question is barred by the Statute of Limitations, or whether the statute was tolled by the payments thereon.

The first indorsement of the payment of interest to April 6, 1885, purporting to have been made by James, the payee, is not sufficient, in the absence of corroborative evidence of such payment, to toll the statute. Wellman v. Miner, 179 Ill. 326.

The third indorsement is shown by the evidence to have been made under the following circumstances. On November 2,1893, Flinspach, the maker of the note and Francis Wochner to whom the note had been assigned, met at the office of James S. Neville who was acting as the attorney of Woclmer. Neville computed the amount of principal and interest then due upon the note and found the same to be $1,930. Flinspach thereupon presented a bill for blacksmithing due from Wochner to him amounting to $91.95, which by the direction of Wochner was deducted from the amount due upon the note leaving $1,839.05 still due thereon. The third indorsement was then placed upon the note by Neville. We think the latter indorsement thus corroborated and explained, sufficiently established a payment upon the note by the maker and served to toll the statute for an additional period of ten years. While it is essential under the statute that a new promise to pay must be in writing, it is not necessary as contended by counsel for appellee, that the evidence of a payment should be in writing. Parol evidence is sufficient. Bowles v. Keator, 47 Ill. App. 98; Willett v. Maxwell, 68 Ill. App. 120; s. c., 169 Ill. 540.

It is not controverted that on August 27, 1903, Katherine Flinspach, appellant’s intestate, while acting as the executor of the will of her deceased husband, Louis Flinspach, paid to the executor of the will of Wochner, who was then deceased, the sum of $50, which appears upon the note as the fourth indorsement. It is contended by counsel for appellee that such payment was unavailing to toll the statute inasmuch as no special authority was conferred upon Katherine Flinspach by her husband’s will to make such payment, and that therefore she could not by making the same, toll the statute as against the rights of the heirs or remaindermen of the real estate. We are of opinion that the. executrix had ample authority to make the payment in question as executrix. By his will the testator directed the payment of all- his just debts and authorized his executrix to sell and convey all or any part of his estate for that purpose. Said will further provided that after the payment of the indebtedness, his widow should have the use of the remainder for and during her natural life, and that upon her death the same should be equally divided among the children of the testator. , Where the personal representatives of a deceased person has unquestioned authority from his decedent to make payment upon an indebtedness, his acts therein will bind those whom he represents to the extent of creating a new promise and bringing an indebtedness otherwise barred from out the Statute of Limitations. Waughop v. Bartlett, 165 Ill. 135. We therefore conclude that the note in question was not barred by the Statute of Limitations at the time the cross-bill was filed, and further that the mortgage given to secure tlie payment of such note was a valid and existing lien upon the real estate conveyed thereby.

We do not think, however, that appellant is entitled to enforce the mortgage lien as against appellees for the full amount due upon the face of the note. Katherine Flinspach purchased the note for $810 which was much less than the amount then actually due thereon, and she was at the time of such purchase the life tenant of the property in question. Appellant therefore is only entitled in equity to a decree for the sum of $810 with interest thereon from the date of the purchase until decree.

Where a tenant in common purchases an encumbrance upon.land held by himself and others as co-tenants, such purchase will inure to the equal benefit of all such co-tenants. Mauzy v. Dazey, 114 Ill. App. 652, and cases there cited.

The decree will be reversed and the cause remanded with directions to the Circuit Court to enter a decree consistent with the views herein expressed.

Reversed and remanded with directions.


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    Ella A. Vandeveer, Appellee, v. Anderson Brothers, Appellants.
    Master and servant—what risks are assumed. A servant assumes the risk of all the known dangers incident to his employment and takes upon himself the hazard of defective appliances and unsafe places, if, after his employment, he knows of the defects or conditions and voluntarily continues in the employment without objection; if the danger is such that a person of ordinary intelligence would know what would follow from the defective appliances or unsafe surroundings and he has knowledge of such conditions, such knowledge carries knowledge of the danger and the risk is assumed.
    Action in ease. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed, with finding of fact.
    Opinion filed December 7, 1907.
    Rehearing denied May 21, 1908.

      J. C. & W. B. McBride, for appellant; J. E. Hogan, of counsel.
    Frank P. Drennan, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case brought by appellee against appellants to recover damages for wrongfully causing the death of Horatio Vandeveer of whose estate appellee is administrator. The jury returned a verdict for the plaintiff and assessed her damages at $1,000. Judgment was rendered upon such verdict and the ■defendants appealed. At the close of the plaintiff’s evidence and again at the close of all the evidence, motions to exclude the same and direct a verdict for the defendants were interposed and overruled.

The first additional count of the declaration avers, in substance, that on April 14, 1905, the defendants were engaged in the business of manufacturing brick; that in making the same dirt was thrown into a mud-pit containing a large auger; that said auger was laid in a trench on one side of the pit; that said auger was propelled by steam power and was used to mix and convey mud from the pit to a molding machine; that connected with said molding machine was a large belt running on the outside of the pit and next to the auger, by the use of which the surplus mud was conveyed from the molding machine back to the pit to be again mixed; that on the day aforesaid the deceased was in the employ of the defendants as pit-man and as such was required to work inside of the mud-pit in mixing mud and feeding it to the auger; that it was a part of his duty as such pit-man, whenever the belt upon which the mud was carried would clog or stop, to reach over the auger, take hold of the belt and start the same, or when the mud began to roll upon the belt, to reach over and pack the mud so as to cause it to be carried by the belt back into the pit; that defendants had negligently placed the trough containing said auger upon one side of the pit with a foot-hold but two inches wide upon which the pit-man was obliged to stand in order to reach the belt over the auger; that while the deceased was attempting to pack the mud thereon as aforesaid, he slipped and fell into the auger receiving injuries which caused his death, etc. The second additional count alleges that the deceased was inexperienced in the performance of said work in the manner detailed and described, and that it was the duty of the defendants to instruct him in regard to the dangers attendant thereon; that the defendants failed to so instruct him; that the defendants then and there negligently permitted said auger to be exposed the full length of said trough without any railing along the side of the auger, and that while the deceased was engaged as such pit-man in performing his duty in the manner in which the same had been done by other pit-men in the employ of defendants, and while engaged in assisting in starting the belt or in packing down the mud thereon, slipped and fell into said auger.

The fifth count alleges that it was the duty of the defendants to adopt rules and methods of using the machinery and performing the work so as to make the performance of the work reasonably safe and that they had negligently and carelessly permitted an unsafe method to be adopted in the performance of said work and failed to warn the deceased of the dangers attendant thereon; that deceased was inexperienced and did not know of such dangers; that defendant did know of them and while performing his work in accordance with such dangerous method or system, on account of his inexperience and the failure to warn him, or adopt rules, the deceased received the injury.

■ The evidence discloses that appellants who were engaged in the business of manufacturing brick, operated a machine for molding brick, on the south and east side of which there was a mud pit. Attached to the west side of the mud pit there was a conveyor commonly called an anger used to convey the mud from the pit into the molding machine. Outside of and on the west side of the pit was a belt that ran at an elevation of about thirty degrees, the lower end of which was at or near the molding machine and the upper end near to the farthest end of the auger from the machine. Such of the cuttings from the brick as were fit to be worked over were thrown upon this belt, carried back to the farthest end and dumped upon a slanting board attached to the south end of the auger box and again thrown into the auger. The mud pit which was built upon the surface of the ground was about six feet deep, ten feet wide and sixteen feet long. The auger which was exposed its full length and operated by a shaft attached to its south end, was in an open box about fifteen inches deep, twelve inches wide and built upon the west side of the mud pit, the top of the box being about fifteen inches from the top of the pit. The shaft was covered by a box about fifteen inches square. West of the box, nearly opposite to it and about eighteen inches below it, was a lever that worked a friction clutch by the use of which the auger could be thrown in and out of gear without interfering with the operation of the other machinery. The deceased was injured the ninth morning after he had commenced work at the brick yard. He was employed in the capacity of pit-man, his duties being to spade and throw mud from the pit into the auger, whence-it was carried into the machine; and also, to turn watér upon the mud into the auger to temper it. When he came to work, May, the foreman of appellants, directed him how to perform these duties and also how to operate the lever, and to cover the auger when filling the mud pit.

The mud pit was usually filled during, the afternoon and the machinery operated in the forenoon. On the day of the accident the deceased had thrown into the mud pit one spade of about fifteen inches of depth over the pit and part of the second spade. At about ten o’clock the making of brick was discontinued but the machinery including the auger continued in operation. Shortly thereafter the deceased stepped upon a board which projected about two inches from the wall on the west side of the pit and immediately above the top of the box containing the auger. From some cause his foot slipped off the board, causing him to fall into the pit, and his foot was drawn into the auger and so crushed that he thereafter died.

The evidence on the part of appellee tends to show that mud had clogged upon the belt; that deceased had climbed upon the board in question for the purpose of removing the same, and that such was the method usually followed by other pit-men in the employ of appellants in removing mud from the belt.

The evidence adduced by appellants tends to show that the mud belt was running and that the deceased had no occasion to get upon this board to help the mud along the belt; that he was standing up on the west side of the mud pit over the auger engaged in a conversation with one Long at the time his foot slipped; that the auger was at the time exposed and there was very little, if any, mud in it, and that deceased by stepping a few feet to. the south end of the auger could have moved the lever and stopped the auger without interfering with the other machinery, and then with safety have stepped up over the auger, or that he could have stepped to the edge of the pit and there descended a pair of steps that were built for going in and out of the pit to the belt.

It has been repeatedly held in this state that a servant assumes the risk of all the known dangers incident to his employment and takes upon himself the hazard of defective appliance and unsafe places, if, after his employment, he knows of the defects or conditions and voluntarily continues in the employment without objection. And that if the danger is such that a person of ordinary intelligence would know what would follow from the defective appliance or unsafe surroundings, and he .has knowledge .of such conditions, such, knowledge carries knowledge, of .the. danger and the risk is assumed. E., J. & E. Ry. Co. v. Meyers, 226 Ill. 358, and cases .there cited.. .

.Waiving the controverted questions as to whether the appliances and surroundings were defective or unsafe, and whether.or not the deceased was in the exercise of ordinary care when injured, we are constrained to hold that the evidence clearly establishes the fact that the deceased must have known the conditions existing at the place provided for him to work and any. dangers arising therefrom or attendant thereon, and that under such circumstances he assumed the risk of injury when he stepped or stood upon the narrow ledge. immediately over the moving auger. The evidence discloses that he was thirty-seven years of age and was.possessed of ordinary intelligence. The machinery and appliances by which he was surrounded were simple both in construction and manner of operation. He had worked .as pit-man for over a week and must have seen the continuous revolutions, of the auger when in use, and known that wlien standing upon a-narrow ledge immediately over the auger he was liable to lose his foot-hold, and fall upon .the auger, in which event serious injury would result.

These .facts were established by the. evidence . of several of the witnesses called in behalf of appellee, and are not controverted by any evidence in the record. . For the reasons stated the judgment of the Circuit Court must be reversed, without remanding the cause. _ ,

Reversed with finding of fact.

Finding of fact, to be incorporated in the judgment of this court. We find that the injury which caused the death of appellee’s intestate resulted' from 'a danger the risk of which was assumed by him under his contract of employment.