text:
    Peter Cashen, Jr., Appellant, v. J. W. Cashen, et al., Appellees.
    1. Partition—costs. Taxation of a solicitor’s fee as costs in partition should not be denied because defendants hired counsel to file an answer correcting the description of the property set forth in the bill of complaint, where such bill was corrected without information from the answer and before an answer was required to be filed.
    2. Partition—answer. Complainant is not bound, as a matter of law, to take notice of an answer filed before it was required by the rule of the court.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed April 11, 1912.
    W. B. McBride, for appellant.
    Graham & Graham, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is a bill filed for the partition of the estate of Peter Cashen, deceased. Complainant filed his hill setting forth the rights and interest of the parties in the estate of Peter Cashen, but omitted from the bill an eighty-acre tract which Peter Cashen owned at the time of his death and included therein a tract of eighty acres which he did not own. The interests of the parties to whatever estate the deceased died seized of was properly set forth.

Defendants employed counsel and filed an answer; the answer set forth the error in the bill wherein it included eighty acres not owned by the deceased, and omitted an eighty-acre tract which he did own at the time of his death.

The original hill was filed October 24,1910; the term of court to which it was filed did not convene until the twenty-eighth, day of November, 1910. To the original bill as filed defendants filed their answer on November 23, 1910, five days before the terms of court convened. On November 28, 1910, complainant was given leave and amended the original bill of complaint, by which amendment the error in the original bill regarding the eighty-acre tract was corrected. On hearing, a decree was entered in accordance with the prayer of the original bill as amended.

By a rule of the court regarding answers in chancery, it was provided that no answer was required to be filed until the morning of the second day of the term, which was November 29; on the morning of November 29'the court entered an order extending the time for filing answers in chancery until the second Thursday of the term.

Complainant’s evidence shows that at the time of amending his original bill he did not know that an answer had been filed, that he did not obtain any information of the error contained in the original bill from the answer. Defendants insist that the answer having been filed, complainant was bound to take notice thereof, and that the answer having disclosed the error, he cannot be permitted to say that he did not derive his information therefrom, and that defendants were required to employ counsel for the purpose of protecting their interest in this estate,' and that by reason thereof complainant is not entitled to have a solicitor’s fee taxed as costs.

Sec. 16, Ch. 22, Hurd’s Revised Statutes, 1909, concerning chancery practice, • provides that an answer shall he due on the return day of the summons, or within such further time as may be granted by the court. Complainant, therefore, was not bound to know that an answer had been filed before the morning of the second day of the term, which was November 29, and cannot, as a question of law, be held to be bound by notice that an answer was filed five days before the first day of court.

Having’ amended Ms bill on the first day of the term, upon his own motion, and without any information derived from the answer filed by defendants, and before any answer was required by the rule of the court, the mere fact that there was an error in the description of the property in his original bill is not sufficient to deprive complainant of the right to have a solicitor’s fee taxed as costs.

The answer to the amended bill admits all the allegations of the amended bill but denies the right to a partition. After the decree had been entered by the court directing a partition and the commissioners appointed, an agreement was entered into by and between complainant and defendants, whereby a division was made of this estate according’ to the interest set forth in the amended bill of complaint and by the commissioners ; the land could not be divided equally, and the rule concerning owelty was adopted in the partition by agreement of the parties for the purpose of preventing a sale of the premises, and those receiving the most land were required to pay the others cash to equalize the values; no question is raised concerning the division made.

Defendants insist, and offer evidence tending to show, that complainant’s solicitor forced a settlement of this partition suit so as to bring about an adjustment of certain matters concerning the settlement of the estate in the Probate Court; but conceding this contention as true, whatever was done to further that end occurred after the partition decree had been entered by the Chancellor, and had nothing whatever to do with the partition of the land or the right of the complainant to have a solicitor’s fee taxed. The controversy or difference which appears to exist grew out of the settlement of matters in the Probate Court and not from any matter arising in the partition suit, and so far as the record discloses, it was unnecessary that the defendants should have employed counsel to protect their interests in the partition proceedings. After the original bill had been amended properly setting forth the property of the deceased and the rights and interests of all parties therein, the rights of the defendants would have been properly taken care of and protected by the court on the allegations in the bill, even if defendants had been defaulted, and where such conditions are shown complainant is entitled to have a solicitor’s fee taxed as costs. Habberton v. Habberton, 156 Ill. 444-47; Stollard v. Nycum, 240 Ill. 472.

From a careful examination of this record and the questions involved, we are satisfied that no substantial defense was made or interposed by any of the defendants, that complainant was entitled to have a solicitor’s fee taxed as costs, and that the court erred in denying the motion of complainant to tax a reasonable solicitor’s fee. No other question than that of solicitor’s fee being raised upon this record, the decree of the Circuit Court will in that regard be reversed and the cause remanded to the Circuit Court with directions to the Chancellor to order a reasonable solicitor’s fee for complainant to be taxed as costs to be paid by the owners of fee in proportion to their interests in the premises.

Decree reversed in part and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Cleveland Grain Company, Defendant in Error, v. F. A. Vant, Plaintiff in Error.
    1. Grain inspection—when shipper is bound thereby. Where a person ships grain to a dealer with full knowledge of the conditions, method and manner of inspection in vogue at that place, he is bound by the grade placed on such, grain in the absence of fraud or unfairness. •
    2. Brokers—purchase of shipper's grain merely voidable. Where a grain broker purchases the shipper’s grain on his own account, such sale is not void but merely voidable.

      3. Brokers—hurden of proof. The burden is upon the shipper to establish the contention that the broker did not follow instructions relative to the sale of grain and that loss was sustained thereby.
    Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 11, 1912.
    C. M. Briggs and Jay Briggs, for plaintiff in error.
    R. R. Rodman, for defendant in error; Thomas A. Graham, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff in error was a grain buyer, located at Talbot, Indiana, from which place, in August, 1908, he shipped to defendant at Cleveland, Ohio, where it was engaged in the grain and brokerage commission business, five car loads of oats. The five cars of oats were shipped by plaintiff in error with instruction to defendant in error to sell for account of plaintiff in error when oats of the quality shipped would net plaintiff in error fifty cents per bushel at Cleveland. The oats were received by defendant in error and stored by it. Plaintiff in error had for a number of years been shipping grain to defendant in error at Cleveland. There was no public official at Cleveland whose duty it was to inspect or have charge of the inspection of grain shipped to that market. The Chamber of Commerce of Cleveland, composed of sixteen hundred business men, including the grain and commission brokers of Cleveland, employed an inspector who performed for them the duties of the inspection of grain shipped to that market. Plaintiff in error having previously shipped his grain to defendant in error, was familiar with and had knowledge of the fact that there was no public official inspector at this point, and having shipped his grain to defendant in error with full knowledge of the conditions existing at that place, must be held to have accepted and been bound by the conditions regarding the inspection of grain that existed there. It is contended by plaintiff in error that the five cars of oats shipped were of the grade known as No. 3 white oats, but on inspection at Cleveland four cars graded as No. 4 and one as No. 3.

The evidence discloses that between May 21 and May 25, 1909, white oats of the grade known as No. 3, could have been sold at Cleveland so as to net fifty cents, but there is no evidence in the record that oats of the kind shipped by plaintiff in error could, at any time after having been received by defendant in error, have been sold in the Cleveland market at a price that would have netted fifty cents per bushel. Numerous telegrams and communications passed between the parties relative to the condition of the market at Cleveland while the oats were being held in storage by defendant in error awaiting the market and instructions from plaintiff in error. On July 28,1909, at 9:25 a. m., defendant in error received from plaintiff in error this telegram, from Hoopeston, Illinois: “Do not hold oats any longer on my account.” On that day plaintiff in error was notified that the oats were sold at forty-six and a half cents. Plaintiff in error insists that this telegram was not sent until after defendants had sold the oats, but the record discloses that the oats were not sold by defendant in error until after the receipt of the telegram; that on receipt of this telegram defendant in error closed out the oats and closed its account with plaintiff in error by purchasing the oats at the market price in Cleveland, and reported to plaintiff in error that the oats had been sold at forty-six and a half cents per bushel. The amount received therefrom was not sufficient to balance the account between plaintiff in error and defendant in error, after deducting the amounts which defendant in error had permitted plaintiff in error to draw on the shipment.

Defendant in error brings this action to recover the balance of that account, which includes storage charges, commission, interest, insurance and expense in handling these oats. It obtained a judgment against plaintiff in error from which plaintiff in error prosecutes this appeal.

As cause for reversal it is contended that the oats were sold contrary to plaintiff in error’s orders and directions, that defendant in error had no right to make the sale, that the judgment is contrary to the law and the evidence, that improper evidence was admitted by the court, that proper evidence offered by plaintiff in error was rejected, and also that the court erred in the instructions given and refused.

Plaintiff in error having had full knowledge of the conditions, method and manner of inspection in vogue at Cleveland, and having shipped his oats there with such knowledge, is bound by the method and manner of the inspection at that place, where on inspection they did not grade No. 3 white oats, and there is no evidence that the inspection was fraudulent or unfair.

Upon the contention that defendant in error wrongfully sold these oats, the record discloses that they were not sold or disposed of by defendant in error until after the receipt of the telegram directing it to hold the oats no longer on plaintiff in error’s account, and his only explanation for his message is that he did not then consider that he had any oats in Cleveland.

While the contention that defendant in error could not rightfully purchase the oats on its own account, as a general proposition of law, is correct, the record discloses that defendant in error offered on this day to sell these oats on the market but found no buyer, and having been directed by plaintiff in error to hold them no longer on his account, entered the sale of these oats on its books as purchased by it.

While a sale of this character is not void but only voidable, plaintiff in error does not undertake to avoid the sale but makes his defense upon the ground that the defendant in error had no right to make the sale except upon following his previous instructions, and upon the further ground that if defendant in error had followed the instructions given it by plaintiff in error, plaintiff in error would not have sustained any loss. As has been previously stated, the telegram of July 28 revoked all former directions regarding the sale of these oats, and upon the contention that the oats might have been sold, if the instructions of plaintiff in error had been followed, so as to prevent any loss to him, the burden was upon him to establish this contention by the evidence, and there being no evidence in the record that defendant in error could have sold the oats at a price designated by plaintiff in error in his instructions, at any time prior to the sending of the message of July 28, and having failed to show by any evidence that the price paid by defendant in error for the oats on July 28, was not the fair, cash, market value of these oats on that day, plaintiff in error has failed to show that he was damaged in any way by reason of the disposing of these oats by defendant in error on the 28th of July, as the record shows they did, and the record being silent as to any evidence which would establish any damages or injury to the plaintiff in error by the action of the defendant in error, the jury were warranted in returning the verdict they did, and the court did not err in rendering judgment thereon.

We do not find any substantial error in the rulings of the court upon the admission or rejection of evidence, neither do we find any prejudicial error in the giving or refusing of instructions; and the cause having been fairly and justly presented to the jury and determined by it, the judgment is affirmed.

Affirmed.


text:
    John C. Hoxsey, Appellee, v. St. Louis & Springfield Railway Company, Appellant.
    1. Electricity—pleading. A declaration in an action against one owning and operating an electric railway for negligence in allowing a broken telephone wire to come in contact with the trolley wire and to extend on plaintiff’s land, where he came in contact with it and was burned, is demurrable where it fails to set forth how or when the telephone wire came in contact with the trolley wire, and does not aver that such contact was caused by negligence of the defendant, nor that it had any control over the accident, or that the contact had existed long enough to constitute constructive notice.
    2. Pleading—construction. Though a declaration must be construed most strongly against the pleader before verdict, the contrary rule is applied after verdict.
    3. Pleading—sufficiency after verdict. To be sufficient to sustain a judgment after verdict, a declaration must aver a duty on the part of the defendant to protect the plaintiff from the injury complained of, a failure to perform the duty and an injury because of the failure; and to show the duty, the facts must be declared from which the law raises a duty.
    4. Electricity—pleading. A declaration is insufficient after verdict in an action against the owner of an electric railway for injuries received from coming in contact with a broken telephone wire which rested against the trolley wire, where such declaration fails to set forth when or how the wire came in contact with the trolley, or that the defendant was responsible for the contact, or that any knowledge of the contact existed before the accident, or that such contact continued for a sufficient time to give constructive notice thereof, and does not aver facts to charge the defendant with failure to perform any duty to the plaintiff.
    5. Instructions—reference to declaration. An instruction which directs a verdict if the jury finds that the case as laid in the declaration is proved should not be given where the declaration does not contain all the averments necessary to entitle the plaintiff to recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    Rivaker & Rivaker, for appellant; George W. Burton and George W. Black, of counsel.

      Edward C. Knotts, for appellee; Peebles & Peebles, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff, appellee, against defendant to recover for injuries alleged to have been received by plaintiff by reason of coming in contact with a telephone wire which had fallen across a trolley wire owned by defendant, upon which a highly dangerous current of electricity was conducted in the operation of its electric cars. Plaintiff recovered a judgment against defendant for thirty-five hundred dollars, from which it prosecutes this appeal.

The declaration contains but one count which, after a general, averment of the owning and operation by defendant of the electric railway, together with the trolley wire, avers:

“That on October 18, 1908, defendant carelessly and negligently suffered and permitted a certain other broken, loose and unfastened wire to be and remain upon and against its said trolley wire so charged with and carrying a great and dangerous voltage of electricity as aforesaid, which said broken, loose and unfastened wire extended from said trolley wire over and upon plaintiff’s premises, and by reason of its being upon and against said trolley wire as aforesaid became and was then and there charged with a great and dangerous current of electricity which defendant well knew or by the exercise of due and proper care should have known, and on the day aforesaid, while passing over and upon his premises, in the exercise of due care and caution for his own safety, he then and there came to, upon and against said broken, loose and unfastened wire so charged with an electric current, whereby he then and there received and sustained a great and dangerous electric shock and was also then and there seriously and painfully burned, in consequence whereof he became sick, sore, etc.”

The declaration contains no other averments concerning any acts performed or any acts failed to be performed on the part of the defendant.

Defendant did not demur to the declaration, but moved the court, at the close of plaintiff’s evidence, and again at the close of all the evidence, to direct a verdict for the defendant, both of which were overruled.

Defendant urges a reversal of this judgment and insists that the court erred in its rulings on the admission and rejection of evidence, on giving and refusing instructions to the jury, that the damages are excessive, that the declaration does not state a cause of action and is insufficient to support a judgment after verdict.

From the conclusions at which this court has arrived we deem it necessary to determine but two questions raised by this appeal.

If a demurrer had been interposed to the declaration the trial court would have been compelled to sustain it for the reason that the declaration does not set forth, how or in what manner, or when the telephone wire fell across, or came in contact with the trolley wire, or aver that it did so by reason of any act of negligence on the part of the defendant; neither does it aver that the defendant had any control over the telephone wire, or was in any way responsible for its falling on, or coming in contact with the trolley wire, or that prior to the time of the accident it had any knowledge or information concerning the contact of these wires, or that the contact had existed a sufficient length of time that defendant could be held to have had constructive notice thereof, neither does it aver that defendant had notice that the telephone wires were strung above and across its trolley wire. But the declaration not having been demurred to, the question now raised is whether the verdict has cured any or all of these defects so that the declaration is sufficient to sustain a judgment after verdict; if it is not so sufficient, then the judgment must he reversed.

While it is the rule that a declaration must be construed most strongly against the pleader before verdict, after verdict the contrary- rule must be applied and the declaration held to be sufficient as to all intendments that can properly be given it from the averments made.

In McAndrews v. C., L. S. & E. Ry. Co., 222 Ill. 232, the rule is clearly stated that a declaration in order to be sufficient to sustain a judgment after verdict must aver (1) the existence of a duty on the part of defendant to protect plaintiff from the injury of which he complains, (2) the failure of defendant to perform that duty, (3) the injury to the plaintiff resulting from such failure; and that when these three elements concur they unitedly constitute a cause of action, hut in the absence of any one of these elements, either in the declaration or the proof, the declaration will be insufficient to sustain a judgment, that it is not sufficient that the declaration allege a duty as a conclusion, but the declaration must state facts from which the law will raise the duty. This rule is also found in Devaney v. Otis Elevator Co., 251 Ill. 28; Mackey v. Northern Milling Co., 210 Ill. 115; in Ayers v. City of Chicago, 111 Ill. 406; in Schueler v. Mueller, 193 Ill. 402; and in O’Donnell v. Kavanagh, 158 Ill. App. 599.

The declaration in this case merely avers that defendant owned an electric railway, a trolley wire through which a current of electricity-for the operation of its cars was carried, together with the fact that a telephone wire belonging to the Girard Telephone Company came in contact therewith, and that by reason thereof the current of electricity was conducted to the telephone wire and that plaintiff came in contact with the telephone wire whereby he received an injury; it does not allege how or in what manner or when the telephone wire came in contact with the trolley wire, or that the contact was occasioned by reason of any negligent act on the part of the defendant, or that defendant had any control over the telephone wire or was in any way responsible for its contact with the trolley wire, or that it knew or had any knowledge of the existence of the telephone wire above the trolley wire, or that prior to the accident it had any knowledge or information concerning the contact of these wires, or that the contact had existed a sufficient length of time that defendant could be held to have had constructive notice thereof; neither does it aver any facts whereby it is sought to charge defendant with a failure to perform any duty owed to the plaintiff, or with doing any act which it was not lawfully permitted to do.

This declaration does not aver any facts from which the law will raise a duty owed from defendant to the plaintiff, or any neglect by defendant to perform any duty owed by it to the plaintiff, nor is there any proof in the record that will supply or cure the omission to make the necessary averments in the declaration, and it clearly falls within the rule stated in the above cases and is, therefore, insufficient to sustain a judgment even after verdict.

The court should have allowed defendant’s motion and directed a verdict for defendant.

Defendant also insists that the court erred in giving to the jury the following instruction on behalf of the plaintiff:

“The court instructs the jury that if you believe from a preponderance of the evidence that plaintiff has proven his case as laid in the declaration, then he is entitled to recover, and in such case you should find the defendant guilty.”

This instruction directs a verdict for the plaintiff if the jury finds that plaintiff has proven his case as laid in the declaration, and refers the jury to the declaration to determine what was necessary to be proven by plaintiff. "Where an instruction directs a verdict and refers the jury to the declaration, as is done by this instruction, to determine the proof necessary to be made by plaintiff, it is necessary that the declaration shall contain all of the averments necessary to entitle plaintiff to recover. By reason of the omission of the declaration to set forth the necessary averments as hereinbefore stated, this instruction is clearly bad and should not have been given to the jury.

For the reasons herein indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Thompson

text:
    Emily V. Seymour, Appellant, v. The Mutual Protective League, Appellee.
    1. Fraternal benefit societies—construction of rules. Clauses in the rules of a fraternal benefit society which provide that certificates in force two years shall be incontestable except for fraud, violation of the constitution and laws or failure to pay assessments, and also that benefits of a member who commits suicide will not be paid except in certain cases, are contradictory and should be construed most favorably to the insured permitting the incontestable clause to prevail.
    2. Fraternal benefit societies—constitution. The constitution of a fraternal benefit society merely has the force of a by-law and does not take away the power to adopt such other by-laws as the charter permits.
    3. Fraternal benefit societies—rules regarding payment of benefits. A beneficiary, on suicide of the insured, has no claim except for the amount paid to the fund by insured where the certificate provides that the member shall comply with the laws in force or that may be in force thereafter, and thereafter a clause providing that certificates shall be incontestable after two years, except for certain causes, is duly repealed and a clause is left in force which provides that only the amount paid to the fund shall be paid in case of suicide except in certain cases.
    Action on a benefit certificate. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.
    Rehearing denied April 3, 1912.
    Miller & McDavid, for appellant; C. C. Terry, of counsel.
    Harry C. Stuttle and Hill & Bullington, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The cause of action with the declaration and the pleas in this case are fully set forth in Seymour v. Mutual Protective League, 155 Ill. App. 21, where the judgment was reversed and the cause remanded for error in the trial court in sustaining a demurrer to a special replication to the pleas. The statement of the pleadings in that opinion will, for the sake of avoiding repetition, be adopted as a part of the present opinion. Upon the case being reinstated the defendant filed a rejoinder to the replication. The rejoinder sets forth that it is provided in the benefit certificate that it was issued upon the express condition that the insured shall comply with the constitution, laws, rules and regulations of the order and the by-laws of the council in force or that may be in force hereafter; that after the certificate of insurance containing said provisions was issued and before Edgar B. Seymour had surrendered it and had the new certificate issued, the incontestible clause set forth in the special replication was repealed by the supreme council of defendant, and the constitution and by-laws were amended in and by which amendment it was provided for the issuing of the last named certificate under the style of the “Five Year Natural Life Form” and the rate of insurance was increased; that after the repeal of the incontestible by-law, the second certificate, known as the Five Year Natural Life Form, was issued to Edgar B. Seymour, who accepted the same, paid dues thereon at a greater rate than under the first certificate, and that said new certificate provided that in the event of suicide the same should be null and void, and that said incontestible clause is not now a part of the laws of defendant and prays judgment, etc., except as to the sum of $19.85, tendered.

A demurrer was filed to the rejoinder, which does not appear to have been passed upon, nor was issue joined on the rejoinder. The case was thereafter tried by the court upon a stipulation of facts. The controlling facts in the stipulation are:

(1) That the defendant is a fraternal beneficiary society organized under the laws of Illinois; that it has a Supreme Council and subordinate councils and that it has a constitution, laws and by-laws, which are enacted by the Supreme Council.

(2) That on September 17, 1897, the defendant issued the certificate set forth in the declaration.

(3) That Edgar B. Seymour on May 1, 1905, surrendered the original certificate for the purpose of changing the beneficiaries.

(4) That Seymour accepted the first certificate and agreed to all the conditions therein.

(5) That he expressly agreed to obey the constitution, laws, and regulations then in force, or that may be in force thereafter.

(6) That at the time he became a member the laws, rules and regulations of the defendant provided:

Section 200. When certificates of membership shall be in force for two years, they shall be incontestible for any cause, except fraud, violation of the constitution and laws of this order, or a failure to pay the assessments.

Section 202. This order will not pay the benefits of a member who commits suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity or has been judicially declared insane; provided in such cases the amount of money contributed to the benefit fund by the member shall be returned and paid to the beneficiary out of such fund in lieu of the benefit.

Section 10. The Supreme Council at its regular meeting shall have complete charge of its affairs. It shall be vested with the sole power to legislate, alter, amend, annul or modify its laws except as herein provided.

(7) On February 25,1905, the Supreme Council, in pursuance to a call duly issued, unanimously passed a resolution in due form repealing Section 200 of the by-laws above set forth. That at such meeting an amendment was prepared and adopted for the abolition and repeal of the by-laws providing for the issuing of certificates of membership as held at that time by Seymour, deceased, and by-laws were enacted for the issuing of certain other benefit certificates known as the “Five Tear Natural Life Certificate” of defendant. That after that meeting the only form of certificate that could be issued in lieu of the original certificate held by Seymour was the Five Tear Natural Life Certificate; that a by-law was adopted at that meeting raising the monthly dues. That the rate of insurance to the said Seymour was raised from fifty cents to ninety-five cents per month. That the secretary mailed to every member, including Seymour, a notice of said amendments, and the notice to Seymour was not returned, although there was a return notice on the envelope, and Seymour thereafter paid the increased premiums. That after the 1st of May, 1905, Seymour for the purpose of changing the beneficiaries, surrendered his original certificate, and the New Five Tear Natural Life Certificate was issued to him, which was accepted and retained by him.

Each party submitted propositions of law in accordance with their theory of the ease. The court refused the propositions presented by plaintiff and held those to be the law, that were presented by the defendant, namely, that the society had power to and did on February 25, 1905, repeal Section 200 of its by-laws—the incontestible clauses—and that if the repeal of said clause was prior to the death of Seymour, then the plaintiff is bound thereby. The court found for the defendant and rendered judgment on the tender for plaintiff for $26.90. The plaintiff again appeals.

At the time the original certificate was issued to Edgar B. Seymour, section 200 of the laws of appellee provided that its certificates were incontestible after two years. The certificate was issued and accepted and “made a liability upon the order to the persons named within the express conditions that the insured shall comply with the constitution, laws, rules and regulations and the by-laws of the council in force, or that may be in force hereafter.” The by-laws at that time contained section 202, that the society would not pay the benefits of a member who commits suicide whether sane or insane, except it be committed in delirium resulting from illness or while under treatment for insanity or after an adjudication of insanity. Sections 200 and 202 are contradictory. If they had both been in force at the time of the death, they would be given the construction most favorable to the insured and the incontestible clause would control.

The “Constitution” of a benefit society has the force of a by-law only, and cannot take away the inherent power to adopt such other by-laws as the charter permits. (Supreme Lodge K. of P. v. Kutscher, 179 Ill. 341.) “A member of a benefit, society, who agrees to abide by and be governed by subsequently adopted by-laws, is bound by them unless they are unreasonable.” “A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed.” (Scow v. Royal League, 223 Ill. 32; Baldwin v. Begley, 185 Ill. 180.)

The original certificate issued to Seymour provided that it was issued “within the express conditions that the insured shall comply with the constitution, laws, rules and regulations of the order and the by-laws of the council in force or that may be in force hereafter. ’7 It was accepted by Seymour and he agreed to all the conditions therein. The by-laws in force at the time the original certificate was issued provided that the constitution and articles of association might be amended by the Supreme Council. It is stipulated that on February 25,1905, the Supreme Council passed a resolution in due form repealing the incontestible by-law in force when the certificate was issued, and that notice of this amendment of the by-laws was sent to Seymour, and that thereafter he had the certificate changed and paid the dues that had been increased under the amendments at that time made.

“The contract requiring compliance with any bylaw that might thereafter be enacted, and the certificate being accepted with such a clause therein, there was no vested right of having the contract in the certificate remain unchanged, because the recognition of the power to make new by-laws is necessarily a recognition of the right to repeal or amend those theretofore made.” (Fullenwider v. Royal League, 180 Ill. 621; Scow v. Royal League, 223 Ill. 33).

In Scow v. Royal League it was held that a by-law of a benefit society providing that “if any member shall die by his own hand, sane or insane, his beneficiary or beneficiaries shall receive only one-half of the face value of the benefit certificate” was valid and binding on a member, who was admitted to the society before the adoption of the by-law, and who had agreed to be bound by all by-laws then in force or thereafter adopted. The assured, Seymour, accepted the original certificate with a similar provision.. It is stipulated that in February, 1905, the incontestible by-law was duly repealed, and that Seymour thereafter committed suicide, and that the appellee has tendered to appellant the money paid in by the assured to the benefit fund. The beneficiary under the stipulated facts has no further claim on the society.

The judgment is affirmed.

Affirmed.


author: Mr. Justice" Thompson

text:
    Ed. Finch, Plaintiff in Error, v. J. W. McIntosh, Defendant in Error.
    1. Contract—to dig well. Where a contract to drill a well has been written by the person agreeing to perform the work, it will be construed most strongly against him on the point as to whether or not certain language amounts to a guaranty of the quality of the water.
    2. Contract—when not guaranty of quality of water. Where a person has written a contract whereby he agrees to drill a well which shall furnish a “good and sufficient supply of water," the word “good” does not qualify the word “water” so as to amount to a guaranty of the quality of the water.
    Action on written contract. Error to County Court of McDonough county; the Hon. Conrad G. Gtjmbardt, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 13, 1911.
    Rehearing denied April 3, 1912.
    Flack & Lawyer, for plaintiff in error.
    Elting & Hainline, for defendant in error.
   Mr. Justice" Thompson

delivered the opinion of the court.

This is a suit originally instituted before a justice of the peace by plaintiff to recover $168.50 from defendant. From the judgment of the justice an appeal was taken to the county court, where the court at the close of the evidence directed a verdict for the defendant on which judgment was rendered, and plaintiff prosecutes this writ of error. There is no controversy over the facts. On June 16, 1910, the parties to the suit entered into a written contract under which Finch agreed to bore or drill a well and furnish the casings, at his own expense, on the premises of McIntosh, at a point “selected by McIntosh, at an agreed price per foot. The contract was prepared by and is in the writing of McIntosh. The conclusion of the contract is: “It is further agreed that the well must furnish a good and sufficient supply of water for the use of said McIntosh for his house, outbuildings and stock, before he is liable for any costs of any kind or description thereon. Payment is due when well is completed in good shape by said, Finch and water supply proved.” It is over the meaning and construction of these sentences that the controversy arises.

Finch drilled a well under the contract and reported to McIntosh that he had struck water; a pump was installed and the well was tested. It is not controverted but that the well furnished a sufficient supply of water, but the water contained sand and mud. McIntosh refused to accept the well in that condition and insisted that the casing, which had been extended down to the solid rock, should be extended into the rock so as to shut off the sandy and muddy water, and the drilling continued until good water was obtained. This Finch refused to do, insisting he had fully complied with his contract and that he is entitled to he paid the agreed compensation.

A written contract by which a party agrees to sink a well that will supply a given quantity of water, does not require that the water shall be potable and fit for washing and making steam, although the well digger knew the well was sunk for a hotel keeper and that he desired water of that character for hotel purposes. American Well Works v. Rivers, 36 Fed. R. 880. In a contract to dig or bore a well there is no implied warranty that, water will be obtained, but only that the work will be done in a workmanlike manner. Butler v. Davis, 119 Wis. 166; Lemke v. Hage, 142 Wis. 178.

The contract sued upon having been prepared and written by the defendant, if the language is uncertain and the intention obscure and open to construction, as to whether the language used constitutes a guarantee of the quality of the water, it must be construed most strongly against him. Massie v. Belford, 68 Ill. 290; Rankin v. Rankin, 216 Ill. 132. The solution of the question involved depends upon the grammatical construction of the words “good and sufficient supply of water.” Does the word “good” qualify the word “supply” or the word “water”? If it qualifies the word “supply,” then the direction of a verdict for the defendant was erroneous, if it qualifies the word “water” then the direction of the verdict for the defendant was correct. The words “good” and “sufficient” are adjectives qualifying the word “supply.” “Of water” is a prepositional phrase modifying the word “supply.” The words “good and sufficient” have no reference to the quality of the water, and there is nothing in the contract having any reference to the quality. In a contract to convey land by a “good and ■sufficient deed” the words good and sufficient relate only to the validity of the deed to pass the title which the grantor had and do not imply that the title is valid or free from incumbrance, unless there is something in the agreement or attendant circumstances to show that the parties intended a g’ood title to pass. Tinney v. Ashley, 16 Pick. 546; Bowen v. Vickers, 1 Green’s Chy. 520; Barrow v. Bispam, 6 Halst. 199. If the defendant desired a particular quality of water he should have provided therefor in the contract. The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Mary Electa Cort, Appellee, v. Laura A. Massie, Executor of the last will of Nancy A. Massie, deceased, Appellant.
    1. Appearance—jurisdiction acquired over legatee appealing and moving to vacate order of distribution. Where it is ordered that an executrix pay legacies and that the owner of a life estate in a legacy shall give a bond to protect the remainder-man,, and it does not appear that notice was given in accordance with the Administration Act, R. S. ch. 3, Sec. 112, on the subsequent appearance of the legatee, it will be presumed that the County Court has jurisdiction over her, and a motion to vacate the order as to the bond will give the court full jurisdiction over her person.
    2. Executors and administrators—when appeal from County Court gives Circuit Court jurisdiction. Where notice as provided in the Administration Act, R. S. v. 3, Sec. 112, is not given the owner of a life estate in a legacy of a final order of distribution that requires her to give bond to protect the remainder-man, an appeal from the order of the County Court refusing to vacate the order gives the Circuit Court jurisdiction over her and the subject of the appeal.
    3. Executors and administrators—what matters considered on appeal from distributive order. Where an order, showing the final report of an executrix, orders payment of legacies and that the owner of a life estate in a legacy shall give bond to protect the remainder-man, the order as to the bond is so connected with the order as to- payment that, on an appeal from a refusal to vacate the -order as to the bond, the rights of the legatee concerning the legacy may be considered.
    4. Executors and administrators—propriety of judgment on appeal to Circuit Court. On an appeal to the Circuit Court by a legatee from an order showing a final account, directing payment of legacies and requiring the legatee to give bond to protect a remainder-man, it is error for the court to reverse the order as if it were a court of review, and it should render a final judgment directing payment of the legacy on terms that will protect the remainder-man.
    5. Courts—practice on appeals to Circuit Court. The practice on appeals from the Probate Court in matters of administration of estates to the Circuit Court is the same as on appeals from justices of the peace to the Circuit Court.
    6. Wills—when bond must be given to protect remainder-man. Where a legacy is bequeathed to a non-resident for her life, on motion of the remainder-man the County Court should require the legatee to give a bond to the remainder-man for its payment at her death.
    7. Wills—construction of dequest. On a bequest of the balance of a testator’s personal estate “to have, use and enjoy for and during her natural life” with a remainder over, the legatee is only entitled to the use of the legacy for her life.
    Appeal from the Circuit Court of Hancock county; the Hon. Habry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 15, 1912.
    Statement by the Court. Nancy A. Massie, by her will probated in the County Court of Hancock county, October 24,1908, provided in the seventh clause as follows: “Of the balance of my personal estate I give, devise and bequeath the one-half thereof to my sister, Mary Electa Cort, to have, use and enjoy for and during her natural life with remainder at her death to Virgil C. Massie or her heirs at law.” The ninth clause of the will provides: “For the purpose of avoiding litigation or contention among the heirs and legatees concerning the provisions of this will, I direct that any controversy over the meaning or effect of the provisions of this will, shall be settled and governed by the construction of my executrix hereinafter named, and her decision of such matter shall be final.”
    Laura A. Massie was appointed executrix by the will and qualified. On November 24, 1908, the County Court set December 20,1909, as the time for the executrix to appear and make her final report. On December 20, 1909, she filed her final report, giving in detail the property that came into her hands, and showing that all debts had been paid, and the amount she had in her hands for the several legatees, among which is the statement that there is due Electa Cort to have, use and enjoy for and during her natural life with remainder at her death to Virgil C. Massie, or her heirs at law as directed under paragraph seven of the last will and testament of said deceased, the sum of $1,033.46.

      Virgil C. Massie was present at the final settlement of the estate and insisted that he, as remainder-man, should be protected, and that as he would be entitled to the $1,033.46 after the death of Mary Electa Cort, that said money should not be paid over to her without some provision to protect said fund, so that upon her death he would have the benefit of it. On December 20, 1909, the County Court e'ntered an order showing the submission of the final report, that the executrix had in all things administered said estate according to law, that all debts were paid, that a certain amount remained in her hands for distribution and that the amount due each legatee is properly computed. Then follows a paragraph ordering that the executrix pay to the legatees therein in accordance with the provisions of the will the legacies found due them as shown by the report. Succeeding that paragraph is the following : “It is further ordered by the court that as to the amount of the legacy due to Mary Electa Cort under the seventh clause of the last will and testament of said deceased to-wit the sum of $1,033.46; that before said executrix pay to her the amount of said legacy that said Mary Electa Cort shall enter into and deliver to the executrix a good and sufficient bond with good and sufficient sureties to be approved by the court, which said bond shall be payable to the people of the State of Illinois for the use of Virgil C. Massie and the same shall be filed and recorded in the office of the clerk of this court, which said bond shall be conditioned that the said Mary Electa Cort shall properly and safely use and enjoy said legacy of $1,033.46 for and during her natural life, and that at her death said sum of $1,033.46 will be paid to Virgil C. Massie the residuary legatee under said paragraph seven of said will.”
    At the April term of the County Court, Mary Electa Cort filed a motion asking that the paragraph of the order relating to her giving a bond be vacated. The court heard evidence in open court and overruled the motion. Mary Electa Cort appealed from the order overruling her motion to the Circuit Court. On the hearing in the Circuit Court the only evidence offered on the part of Mary Electa Cort were the original records and papers contained in the transcript which it was agreed were correctly set forth. On the part of the executrix, Virgil C. Massie testified that he was present in the County Court, and insisted that the County Court protect his interest in the legacy. The executrix also offered in evidence her notice of final settlement, with an affidavit that the same had been posted at certain public places and a copy mailed to each of the heirs and legatees, Mary Electa Cort being named among them, but there was no order offered in evidence showing that the County Court had directed what notice should be given.
    The Circuit Court entered an order finding that on December 20, 1909, the County Court was without jurisdiction of the person of Mary Electa Cort, the appellee, aUd that the court erred in overruling the motion to vacate the paragraph of the order relating to the giving of a bond, that the court should have vacated that paragraph and “said motion is now here sustained by this court and the order of the said County Court overruling the said motion is now here in this court set aside and reversed. It is therefore, considered, ordered, adjudged and decreed that the said last paragraph of the said order be vacated, annulled, set aside and for naught held and the same is so vacated accordingly.” This appeal is prosecuted from the order of the Circuit Court.
    S. P. Lemmon and O’Harra, 0 ’Harra, Wood & Walker, for appellant.
    W. B. Sheets and Scofield & Califf, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellant insists that it was immaterial whether the County Court had jurisdiction of the person of appellee at the time the court made the order of distribution and the order that appellee give a bond, for the reason that by afterwards appearing in the County Court and moving to vacate that part of the order for a bond and making no objection to the remainder of the order concerning the report, the court thereby acquired jurisdiction of appellee. She also contends that by inserting in her report that there was due “Electa Cort to have, use and enjoy for and during her natural life with remainder at her death to Virgil C. Massie or his heirs at law,” she exercised the power given to her by the ninth clause of the will to make final decision as to the meaning and effect of the provisions of the will, and that appellee, having* entered her appearance in the County Court and made no objection to the final report, is bound thereby. Appellant further insists it was her duty as executrix to require a bond and to see that the remainder-man was protected. Appellee contends that the use of the "vyord “have” in the seventh clause indicates that possession was to accompany the use and enjoyment of the fund; and that no express trust having been created and no evidence of non-residence or insolvency adduced and no bond required by the will no bond could be required by the court.

The statute, section 112, chapter 3, title, administrators, provides: “that no final settlement shall be made and approved by the court unless the heirs of the decedent have been notified thereof in such manner as the court may direct.” While there is no evidence in the record either that there was or was not any special order of the County Court directing what notice should be given the heirs and legatees or any general order in that regard, yet it is not necessary to consider the question as to whether the County Court being a court of general jurisdiction in the .matter of estates, the presumption will prevail that it had jurisdiction over the person of Mary Electa Cort, for the reason that she subsequently entered her appearance. By making the motion to vacate so much of the order as required her to give bond, before the legacy should be paid to her, she gave the court full jurisdiction over her person, and the court had unquestioned jurisdiction over the subject-matter. Her appeal, from the order of the County Court refusing to vacate that part of the order requiring her to give bond, gave the Circuit Court jurisdiction over her and the subject of the appeal. The order that she should give a bond for the repayment of the legacy at her death to the remainder-man is so connected with the order that the executrix pay the legacy to her that the appeal from the order that she give bond involved her right to and the entire order concerning the legacy.

The Circuit Court did not render a final judgment, but vacated the last paragraph of the order and set aside and reversed the order of the County Court refusing to vacate that part of the order concerning the bond. The judgment of the Circuit Court was improper for the reason it reverses and vacates the order of the Probate Court as if the Circuit Court were a court of review, exercising functions similar to those of the Supreme or Appellate Courts. Pavlicek v. Roessler, 222 Ill. 83.

The trial was de novo. The practice on appeals from the Probate Court to the Circuit Court is the same as on appeals from justices of the peace to- the Circuit Court. There being no question raised as to the accuracy of the account, the Circuit Court should have rendered a final judgment directing the payment of the legacy to the legatee on such terms and conditions as would protect the remainder-man and carry out the terms of the will. The record shows the legatee Mary Electa Cort is a non-resident of Illinois, her residence being in Missouri as appears from the bond executed by her on her appeal.

The terms of the will only give to Mary Electa Cort the use of the legacy for her life. Trogdon v. Murphy, 85 Ill. 119; Dickinson v. Griggsville Nat. Bank, 209 Ill. 355. While the testatrix did not by her will require that the life tenant should give a bond, yet when the remainder-man asked that he be protected and it appeared in any way that the legacy of which appellee had the use for her life was about to be taken out of the state, the court should have required her to give a bond for its payment to the remainder-man at her death. The case is reversed and remanded with instructions to the Circuit Court to enter such an order as will secure to the life tenant the use of the legacy and also secure to the remainder-man the payment of the legacy, after the death of the life tenant.

jReversed and remanded with directions.


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    John A. Ayers, Appellant, v. City of Jacksonville, Appellee.
    1. Municipal corporations—when bill to enjoin city from, acting under a contract is not demurrable. A bill to enjoin a city from acting under a contract with a well drilling company is not demurrable where it alleges non compliance with R. S. c. 24, art. IX., § 50, as to bids on public work, and certain ordinances, sets forth ordinances containing certain requisites as to contents of advertisements, estimate of cost and preparation of plans and avers noncompliance therewith, and tha,t the advertisement called for bids for boring wells while a contract was let for boring wells and installing pumps and other equipment, and that the price is excessive.
    2. Municipal corporations—necessity of setting up defense of laches in answer. Where a taxpayer suing to enjoin a city from acting under a contract has not in his pleading undertaken to excuse the delay, if the city desires to make avail of the defense of laches it must set it up in its answer, so as to give the complainant an opportunity to amend by making allegations accounting for the delay.
    3. Municipal corpobations—when delay in bringing cause to hearing is not harmful. On a proceeding to enjoin a. city from acting under a contract it cannot urge laches and delay in bringing the cause to a hearing where the only work done under the contract was not objected to by the complainant and the city could have expedited the hearing as well as the complainant.
    4. Officers—authority to act. Where public officers derive their powers from and their duties are prescribed by statute, all persons dealing with them in reference to public affairs are bound to take notice of their powers and duties and to see that such officers are acting within the scope of their authority.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Statement by the Court. John A. Ayers, a resident and taxpayer in the city of Jacksonville, in behalf of himself and all other taxpayers in said city, filed a bill in chancery, returnable to the May term of the Circuit Court of Morgan county, praying an injunction restraining the city of Jacksonville from taking any steps to carry out a contract made by the said city with the American Well Works Company, of date February 24, 1911, for furnishing electric driven deep well pumps, etc.
    The bill alleges that the city of Jacksonville is a city incorporated under chapter 24, of the Revised Statutes of Illinois, and that among the ordinances of the city are the following: Sec. 575. “Where any public work shall be ordered by the city council of the city of Jacksonville, and before the letting of any contract therefor by the city, the probable cost of such work shall be first ascertained.”
    Sec. 506. “All contracts for the making of any public improvements in said city, to be paid for in whole or in part by special taxation, and any work or other improvement, when the expenses thereof shall exceed the sum of $500 shall be let to the lowest responsible bidder therefor in the manner hereinafter prescribed, provided that any such contract may be entered into * * * without advertising for bids * * * when authorized by a vote of two-thirds of all the aldermen elected to the city council.”
    Sec. 507. Whenever any local or public improvement shall be ordered it shall be the duty of the city engineer to prepare a plan and profile of the improvement and specifications, which shall be kept on file in his office and open to inspection of any person interested.
    Sec. 508. Provides for advertising for bids for improvements for ten consecutive days, which advertisement shall state the nature and extent of the improvement; the place where the specifications thereof may be seen; when and where the bids will be opened, and that the right to reject any and all bids shall be reserved in the advertisement.
    It is alleged that on February 9, 1911, the city council passed a resolution directing the city clerk to advertise “for bids for two twelve inch wells to be put down and equipped same as other wells at the Widen-ham-Daub Wells. Specifications will be in the city clerk’s office after February 11,1911, bids to be opened February 23, 1911, at regular meeting of city council;” that Earl M. Henderson is the public engineer of the city of Jacksonville and that no plan of the proposed improvement or specifications were prepared by the public engineer and there was no estimate of the probable cost, but that certain specifications were prepared by O. S. Cummin of Gardner, Hlinois, which were incomplete and were placed on file in the office of the city clerk, but were never approved by the public engineer of the city of Jacksonville, and that on February 11th, 18th and 21st, an advertisement was inserted in the Illinois Courier, a newspaper published in the city of Jacksonville as follows:

      “Bids for Wells.
    Sealed bids for furnishing all material, machinery and labor for drilling two 12-inch inside diameter wells and drilling test holes, will be received at the office of the city clerk of the city of Jacksonville until February 23rd, 1911, at 12 o’clock noon.
    Each bidder is required to give a certified check in the sum of 10 per cent of the bid, that he will enter into contract to complete the work.
    George W. Davis,
    City Clerk.”
    It is further alleged that on February 23, 1911, at a meeting of the city council, two bids were opened, one from the United Well Works Company for $3,580 and one from the American Well Works Company for $7,832, and they were referred, by a vote of seven to two, out of twelve aldermen, to the public improvement committee of the council,.with power to act; that on March 2, the public improvement committee made a report, that it had entered into a contract on February 24, 1911, with the American Well Works Company of Aurora for drilling two wells, and for the furnishing and installing of two electric driven deep well pumps with all pipes, fittings, motors, foundations, etc., according to the specifications for $7,832. The contract provides that the work shall be begun on or before March' 2, 1911, and that the same shall be completed according to the specifications within fifty days from the date thereof.
    It is also alleged that the contract is invalid because of the omission to advertise for bids for pumps, motors, foundations, etc., as required by the statute and ordinances of the city, and that the specifications prepared were exceedingly favorable to the only bidder upon the work; that the American Well Works Company has its employees at work digging the wells and will proceed within a few weeks to install said deep well pumps and other equipment and the city of Jacksonville will pay the contract price therefor, to the irreparable injury of complainant.

      The bill was afterwards amended by inserting that the cost of the improvement will exceed $500 and the lowest bid received therefor was $3,580, that the reasonable, expenses of drilling each of said twelve-inch wells will not exceed $200 and of each of the test holes $25, that the contract price is at least $2,000 in excess of the sum at which a contract might have been let to competent and responsible parties for the work and material in the specifications, if proper and legal notice had been given. The bill and amendments are verified. A general demurrer was filed to the bill as amended, which was sustained and the bill dismissed for want of equity.
    William N. Hairgrove andBsLLATTi, Barnes & Bellatti, for appellee.
    Worthington & Reeve and Kirby, Wilson & Baldwin, for appellant.
   Mr. Justice Thompson

delivered the opinion of the court.

Section 50 of Art. IX, of Chapter 24, of the Statutes, requires all public work in cities, when the expense thereof shall exceed $500 to be let to the lowest responsible bidder in the manner to be prescribed by ordinance, provided that such contract may be entered into by the proper officer without advertising for bids by a vote of two-thirds of the aldermen. The ordinance of appellee provides that the city engineer «ball prepare plans and specifications for any public improvement when one is ordered; that proposals for bids shall be advertised for ten days, and that the advertisement shall state where specifications for the improvement may be seen with the time when and the place where the bids will be opened.

The advertisement in the present case contains no reference to specifications nor when or where the bids will be opened. It only asks for bids for drilling two twelve-inch wells and test holes, which the bill represents will not cost over $500. Under such advertisement, bids were received from two bidders, one offering to do the work according to the specifications for $3,580, the other for $7,832. On February 23, 1911, by a vote of seven aldermen out of twelve, the bids were referred to a committee with power to act. The committee entered into a contract with the highest bidder to do the work and furnish the equipment for $7,832. This contract was approved March 2, 1911, by the vote of only seven aldermen.

The bill praying to have the city enjoined from acting under or recognizing this contract was filed April 28, 1911, to the May term of court, which began May 8th. On the first day of the term the defendant asked for time to answer and it was given until May 15th when it filed a general demurrer. No further action was taken by either party until June 30th when the demurrer was sustained. The complainant on July 3rd amended his bill. The original demurrer was permitted to stand as a demurrer to the amended bill, and on July 3rd the demurrer was sustained and the bill dismissed for want of equity.

Appellee insists that the demurrer was properly sustained for two reasons (1) that complainant was guilty of laches in filing his bill, and in his further failing for practically two months to make any effort to bring the matter to a hearing before the court, (2) if the advertisement was insufficient yet “the contract was not ultra vires and the city was urging the contractor on with the work and accepted the benefit.”

As to the first contention of appellee the question of laches was not raised in the trial court. Where the complainant has not in his pleading undertaken to excuse the delay, the defendant if he desires to avail himself of the defense of laches must set it up in his answer, so. as to give complainant an opportunity to amend by making allegations accounting for the delay. Hutchinson v. Bambas, 249 Ill. 624; Henshaw v. State , Bank, 239 Ill. 515; Zeigler v. Hughes, 55 Ill. 288. The bill alleges that the contractor is engaged in boring the wells and will within a few weeks proceed to install the pumps, etc. It does not appear that at the time the bill was filed, anything had been done by the contractor except part of the work called for in the advertisement and no injunction is sought against the digging of the wells. The defendant city, if it was interested in having the suit disposed of, could have expedited the hearing as well as the complainant after the term began.

No question is made concerning the apparent defect of parties. The contractor, to whom the city awarded the contract, is not made a party, but no mention of that fact is made by either party to the suit, although the rights of the contractor are such that the final decree might have materially affected it. Since counsel for neither party has discussed this question, we are not called upon to express any opinion concerning it.

The bill alleges that the contract made by the city was invalid because of the failure of the city to comply with the statute and ordinances in reference to letting contracts for public work by the city and the requirement of the ordinances that the advertisement shall state the nature and extent of the improvement with the place where the specifications may be seen. The ordinances also require that before a contract is let an estimate shall be obtained of the probable cost. The advertisement for bids only asked for bids for boring wells. The bill alleges that the expense of boring the wells will not exceed $500 and yet a contract for boring wells, installing pumps and other equipment, etc., at an expense of $7,832 was made under this advertisement. It is alleged the contract price is much in excess of the reasonable value of the work and material contracted for and was made when there was a bid to do the work and furnish the equipment according to the specifications for $3,580. The ordinances also require that the city engineer shall prepare plans and specifications and the bill alleges that the plans and specifications were neither prepared nor approved by the city engineer. If the allegations of the bill are true there appears to have been a total and wanton disregard of the law in the making of that part of the contract sought to be enjoined.

Cities are .given by the statutes the right to contract for public improvements but in making contracts they must proceed according to law. There is a distinction “between contracts where the parties have an inherent power to contract, and contracts where as here, there is no inherent power to contract, but the contract is purely by virtue of a special statutory authority. In the former instance, the contract is presumed to be lawful, and it devolves upon those who claim its invalidity to show that it is unlawful. But in the latter instance, as we have heretofore shown precisely the reverse is held. The burden there is upon those seeking to enforce the contract to show that it is within the statutory authority. It is, therefore, not upon the plaintiffs in error in the first instance to establish the invalidity of those contracts, but upon the defendants to establish their validity.” Dement v. Rokker, 126 Ill. 174.

Where public officers derive their' powers from and their duties are prescribed by statute all persons dealing with them in reference to public affairs are bound to take notice of their powers and duties and to see that such officers are acting within- the scope of their authority. Tammer v. Lavalle, 92 Ill. 263; Bogne v. People, 224 Ill. 449. The allegations of the bill charge the appellee with a total disregard of the statutes and city ordinances and are sufficient to require an answer. It was error to -sustain the demurrer. The decree is reversed and the cause remanded with instructions to overrule the demurrer.

Reversed and remanded.


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    George Baldwin, Appellee, v. Toledo, St. Louis & Western Railroad Company, Appellant.
    1. Instructions—defendant’s right to have instructions on preponderance of evidence. A defendant in a personal injury case requesting two instructions on the proposition that unless the jury believe the plaintiff has proved by a preponderance of evidence that at and just before the time of the accident he was in the exercise of due care, or if the evidence therein preponderated in favor of the defendant, or was evenly balanced, the verdict must be for the defendant, is entitled to have one of them given.
    2. Instructions—when jury cannot determine what is proper evidence. An instruction as to the credibility of employes to the effect that the jury should consider their evidence with the proper evidence in the case is improper in leaving it to the jury to decide what is proper evidence.
    3. Witnesses—when instruction on credibility is properly modified. That the jury may consider testimony of employes “from the way the witnesses have testified and borne themselves upon the witness stand” is properly erased from an instruction on the credibility of employes, and it is proper to insert the words “from all the evidence, facts and circumstances shown in the evidence in the case.”
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    H. M. Steely and O. E. Pope, for appellant; Charles A. Schmettait, of counsel.
    C. W. Fleming, for appellee; Thomas A. Graham, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action by plaintiff against defendant to recover damag’es for a personal injury received at a street crossing while attempting to cross defendant’s railway in the village of Ridgefarm, in Vermilion county. There was a verdict and judgment in favor of plaintiff for $1,800, and the defendant appeals.

The declaration contains three counts and avers due care on the part of the plaintiff and negligence on the part of defendant; (1) that it carelessly and improperly drove and managed its train; (2) a violation of the statutory requirement of ringing a bell or sounding a whistle and (3) a violation of an ordinance of the village of Bidgefarm limiting the speed of passenger trains to ten miles an hour.

It is conceded that the train was running in violation of the requirements of the ordinance of the village of Bidgefarm. The evidence is conflicting concerning the violation of the statute. It is insisted on the part of the appellant that the proof does not show that the plaintiff was in the exercise of due care at the time of the accident, but in the view we take of this case, that there was error in refusing instructions asked by the defendant, we do not think it necessary to review the evidence or to express any opinion concerning the facts.

The appellant requested two instructions on the proposition, that unless the jury believe the plaintiff has proved by a preponderance of the evidence that the plaintiff at and just before the time of the accident was in the exercise of due care, or if the evidence preponderated in favor of the defendant or was evenly balanced on that question, then the verdict must be in favor of the defendant. No instruction of that character was given. The defendant was entitled to have one of these instructions given. Complaint is made concerning the refusal of other instructions, but the substance thereof appears to have been given in other instructions.

Appellant also insists that its eleventh instruction was improperly modified by the court. The instruction is concerning the credibility of witnesses who were in the employment of the appellant. As asked it told the jury that they should “take their evidence into consideration, and with proper evidence in the case give it such weight and credibility as you may consider it entitled to from the way the witnesses giving testimony have testified and borne themselves on the witness stand.” The court modified it by erasing the words “from the way the witnesses have testified and borne themselves on the witness stand” and inserted the words “from all the evidence, facts and circumstances shown in the evidence in the case.” The instruction as asked should have been refused as the test in the instruction as asked was not the only matter to test it by; the addition of the court was proper. The instruction as asked however should have been refused for the reason it left to the jury to decide what was proper evidence in the case; they are required to consider all the evidence in the case. Because of the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John Driza, Appellee, v. Jones & Adams Coal Company, Appellant.
    1. Mines and minees—when question whether sufficient props were furnished is for the jury. In an action for injuries received because of alleged wilful violation of the Mines and Miners Act in failing to furnish sufficient timbers and props on request, it is a question of fact for the jury whether sufficient props were furnished where one witness testifies that he was in the room before the accident and that there were no props in the room not set up and two testify that they saw the room before and after the accident and that there were no props or timbers there and on the other hand four witnesses testify that there were props and cross bars, in the room before the accident which could have been used.
    2. Mines and miners—when miner cannot recover for injuries. A miner injured by the falling of slate cannot recover if he was only allowed to enter the mine under the direction of the mine manager to prop the roof of his room and to make it safe.
    3. Mines and minees—when question for jury whether miner entered mine as miner or as company man. It is for the jury to say whether a miner when injured had been allowed to enter the mine as a miner of coal or as a company man under the direction of the mine manager where the evidence is conflicting whether he got his “life check” from the usual place or whether he got it from the company’s office with a memorandum of the condition of his room attached thereto and whether he received instructions from the mine manager to timber his room.
    4. Mines and minees—what' term, “miner" ordinarily means. As ordinarily accepted the term "miner” includes all laborers in a mine whether digging coal or timbering and making places safe.
    5. Instructions—requisites of instruction directing verdict. An instruction purporting to state the facts necessary to recovery and directing a verdict for the plaintiff on finding such facts should not ignore an affirmative defense which is supported by evidence and which if established would defeat recovery.
    6. Instructions—when directing verdict cannot he supplemented. A defective instruction directing a verdict cannot be supplemented by another.
    • 7. Instructions—when instruction directing verdict will reverse. In an action for injuries caused by alleged wilful violation of •the Mines and Miners Act, it is reversible error to give an instruction which directs a verdict but does not refer to a defense, supported by evidence that the plaintiff was a company man working at making conditions safe when the injuries were received.
    8. Instructions—when misleading in use of word miner. Where the defendant alleges that the plaintiff was injured while working under the direction of the mine manager, an instruction is misleading which uses the term “miner” without distinguishing between a miner working at his calling and one entering the mine and working under direction of the mine manager to make conditions safe.
    Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Brown, Wheeler, Brown & Hat and John T. Creighton, for appellant; Mastin Sherlock, of counsel.
    William J. Lawler and T. J. Sullivan, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee recovered a judgment for $2,850.00 against appellant in the Sangamon County Circuit Court for an injury sustained by him Monday, March 7,1910, by a fall of slate from the roof of his room while working in defendant’s mine. The declaration contains several counts. In our opinion, recovery can be had only under the second or sixth counts. The second count alleges a violation of clause (a) of Section 16 of the Mining Law, in that the mine manager wilfully failed to provide a sufficient supply of props, caps and timbers, delivered at the usual place when demanded, in suitable lengths and dimensions for securing the roof. The sixth count avers that in the room where plaintiff worked, there was an unsafe roof and that by the statute it is provided that no one shall be permitted to enter into the mine to work therein, except under the direction of the mine manager, until all conditions have been made safe; that in violation of the said' provision defendant allowed plaintiff to enter said mine to work therein not under the direction of the mine manager. The count, however, describes the section of the statute as clause (c) of Section 16 of the Miner’s act, while the proper description of this provision is clause (b) in Section 18 of the act.

Appellee commenced work in room 10 as a miner about a month before the accident. The room was then about 100 feet long and ten feet wide. At the face there was a horseback, so called, running diagonally across the room. Appellee drove the room narrow from the horseback to a point twelve feet in, and then began to widen the room. He took eight props from near the entry and set them in a bunch close to the right hand side of the car track to support the roof. Appellee after extending the room to a width of fifteen feet drove it forward to a point fifteen to twenty-five feet beyond the location of the props. After appellee had set up the eight props he demanded at least ten times, as he says, props, caps, timbers and crossbars from Davis, the mine manager; he also claims he made a similar demand on Thomas Green, assistant manager, about a half a month after he began work. Appellee claims no attention was paid by the mine manager or assistant manager to his demands and that on the day of the injury none of the demanded and required props, etc., had been furnished. Appellant’s defense to that count is that Driza was furnished with sufficient props, timbers, etc., to properly support his roof, and that when Driza entered the mine on the morning of the injury he went as a company man, so called, under the direction of the mine manager, Davis, to make safe the dangerous condition of the room.

With reference to the demand for timbers, in addition to Driza’s testimony, Martin Titus testified he heard Driza order props and all kinds of timbers from Davis early in the week before he was hurt, and again the Saturday morning before the injury. Davis and Green both testified that no demand was made by Driza for props and timbers. As to whether or not the necessary props and timbers were supplied the evidence is conflicting.

• On the part of appellee, in addition to his own testimony, Burkhardt, a driver, who was in Driza’s room on the morning previous to the injury, testified that there were no props or timbers there not set up, and John Papulauskas testified he was in the room Saturday previous to the injury and on the following Monday and saw no props, timbers, crossbars or anything of the kind. Martin Titus testified he was in Driza’s room Monday both before and after the accident and that there were no props or timbers, in fact nothing at all.

On the part of appellant there is evidence that there were eight props in that room that were not set up. Davis, the manager, and Green, assistant manager, William Tillie, a surveyor’s helper, and Pavelick, a shot-firer, testified that on the day of the injury there were props and crossbars in appellee’s room which he could have used to support the roof. It was a question of fact for the jury to decide from the evidence whether or not sufficient props and timbers had been furnished in accordance with Driza’s demand.

The defense of appellant most earnestly urged, however, is that appellee was not working in the mine at the time he was injured, as a miner proper as that term is used in the Mines and Miners Act, and as the term is popularly understood, but that when he entered the mine he entered as a company man under the direction of the manager, Davis, to make safe a dangerous place j that the mine inspector, Voiseley, had inspected Driza’s room about 2:30 o’clock a. m. on that day and found the place needed timbering and that the roof was drummy and unsafe, and that he put a danger mark in chalk on the brow of the room about ten or twelve feet from the face, and made a report for the manager at the company’s office and also another report which was kept in a shanty at the foot of the shaft; that his report as to the room stated, “slate down; cross timbers needed at the face;” that he took Driza’s “life check” off the board where it was placed by Driza and left it with a memorandum of the condition of the room in the company’s office. Davis testified that at seven o’clock a. m. March 7th, Driza came for his life check, and that he told Driza that, “He had a little slate down and that his place needed timbering and to go in there and timber his place and clean the place up, clean the slate up,” and handed him his life check. The bookkeeper, Stafford, testified that he heard a conversation between Driza and Davis on the morning of the 7th about the check for his room, but could not remember the words. Driza testified that he did not get his check from the manager on the morning of the 7th, but from its usual place.

It is urged by appellee that even if Davis’ testimony is true, that his statement to Driza when he handed him the “life check” did not convert Driza into a com-party man, and that Davis’ directions were in the nature of instructions as to his duties in taking care of his room as provided in Section 16 of the Mines and Miners Act, and that it was in no sense a direction by the mine manager to make a dangerous place safe.

“Where an employe in a mine is injured while in the performance of the duty of putting in necessary props and making surrounding conditions safe, he cannot recover of a mine owner by virtue of the several provisions contained in the Mines and Miners Act compliance with which he was engaged in making.” Kelly-ville Coal Co. v. Bruzas, 223 Ill. 595; Gallatin Coal Co. v. Andrewzewski, 137 Ill. App. 1; Cappelin v. Jones and Adams Coal Co., 164 Ill. App. 267. In Paietta v. Illinois Zinc Company, 153 Ill. App. 506, it was held that the statute does not require that the mine manager must be personally present at all times, while conditions are being made safe. The statute is observed if the men, who enter the mine to change unsafe conditions, shall do so under the direction of the mine manager. Appellant contends that appellee’s situation is brought within the purview of that case and for that reason he is not entitled to recover. If Driza when injured was not in his room to work therein except under the direction of the mine manager, but had only been permitted to enter the mine for the purpose of propping up his room under the direction of the mine manager and making it safe then there can be no recovery. It was a question for the jury to say from all the evidence whether appellee when injured had been permitted to enter the mine as a miner mining coal or as a company man and was working under the direction of the mine manager making conditions safe.

With the case showing such a conflict in the evidence the court gave the following instruction:

“The court instructs the jury that, if the jury believe from a preponderance of the evidence that the plaintiff on the 7th day of March, A. D. 1910, was in the employ of the defendant as a miner, and engaged and at work at his said employment in the tenth room of the fifth B east entry, off the first B south entry in the mine of the defendant and that said room prior to the injury to the plaintiff needed props, caps and timber to support the slate at the roof of said room at a place where plaintiff was required to work therein • and that there was not in said room any props, caps and timber to secure the roof at said place where plaintiff was required to work, and that the plaintiff had demanded or ordered props, caps and timber of the mine manager of the defendant, and that the mine manager of the defendant wilfully failed to furnish said props, caps and timber, delivered at the usual place, for the securing of the roof of said room, and that such wilful failure of the mine manager of the defendant to furnish such props, caps and timber as above mentioned, after such demand, was the proximate cause of the injury to the- plaintiff, then the jury will find for the plaintiff.”

This instruction directs a verdict if certain facts are shown by the evidence. It contains no reference to the defense urged by appellant, that the appellee was a company man working at making the room safe under the direction of the mine manager, a defense that there is evidence to support.

The term “miner” in its ordinarily accepted meaning includes all classes of laborers who work in a mine whether digging coal or timbering and making places safe. An instruction for a plaintiff, which purports to state the facts essential to a recovery and. directs the jury to find a verdict for the plaintiff on finding such facts, should not ignore an affirmative defense, which there is evidence tending to prove and which, if established, would defeat a recovery. Mooney v. City of Chicago, 239 Ill. 414; Chicago Suburban W. & L. Co. v. Hyslop, 227 Ill. 308; Illinois Iron and Metal Co. v. Weber, 196 Ill. 526; Boden v. Kewanee Coal & Mining Co., 157 Ill. App. 484; Ranney v. Chicago & Alton R. R. Co., 158 Ill. App. 104. It is also the law that an instruction directing a verdict cannot be supplemented or cured by any other for the reason that if the jury read and obeyed it they would find for the plaintiff, although they might believe the defense urged was proved. Mooney v. City of Chicago, (supra); Ranney v. C. & A. R. R. Co., (supra). The instruction was misleading in the use of the term miner without distinguishing between a miner working at his calling and a miner entering the mine and working under the direction of the mine manager making conditions safe. The giving of the instruction directing a verdict without reference to the defense which there was evidence tending to prove was reversible error. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People, ex rel. Ida Roehl, Appellee, v. Harry McKeown, Appellant.
    1. Evidence—entry on hotel register. An entry on a hotel register is not competent evidence of the facts therein recited or in corroboration of testimony that a person was elsewhere at the time of the commission of a certain act.
    2. Evidence—entry on hotel register may he used to refresh memory. The entry on a hotel register may he used to refresh a witness’s memory where he first testifies that the entry when made was correct.
    3. Appeal and error—harmless error. Where on cross-examination of defendant’s witness a fact is elicited which is not warranted by the direct examination, and subsequently similar evidence is given in behalf of the relatrix without denial on the part of the defendant, the prior error is harmless.
    4. Bastardy—harmless error. An instruction in a bastardy proceeding to the effect that same is a civil proceeding to provide for the support, maintenance and education of the bastard child, though argumentative, is merely harmless error.

      Appeal from the Circuit Court of Macoupin county; the Hon. Truman A. Snell, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    H. H. Willougby and Edward C. Knotts, for appellant.
    James H. Murphy and Victor Hemphill, for appellee ; L. M. Harlan, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a prosecution on a charge of bastardy where a verdict and judgment were rendered against the defendant from which he appeals. The relatrix testified that the defendant had intercourse with her in the village of Staunton on the night of Easter Sunday, April 11, 1909, about ten o’clock. Fred Haase testified, on behalf of the defendant, that he and the defendant left Staunton about six o’clock that evening and went to Mt. Olive, a village about six miles distant, where they registered at a hotel at 1 a. m. the next morning and stayed there until the next day. The defendant did not testify in the case but offered in evidence the hotel register to which an objection was sustained. This ruling it is urged was error.

The witness, Haase, testified that from memory he recollected the date without the entry on the register. The entry on the register, while it might be used to refresh his memory, if he had first testified that the entry when made was correct and that he did not remember the date without the memorandum, yet it was not competent evidence either of the facts therein recited or in corroboration of his testimony. Kent v. Mason, 1 Ill. App. 466; 14 Encyc. of Ev., 724; 1 Green-leaf on Ev., 437. This entry was subject to the further objection that it was a self-serving statement of the appellant, and while it was competent evidence against him it was not competent in his behalf.

The witness Haase was asked on cross-examination what the defendant told him about the relatrix and answered that he said he had intercourse with her. This should not have been permitted as it was in no way connected with the facts elicited on the direct examination. However, since similar evidence was given on behalf of relatrix by a witness Mueller, and the defendant made no denial of either the evidence of relatrix or Mueller, the error in the cross-examination of the witness Haase was harmless.

The witness Fred Haase testified that he had intercourse with the relatrix on April 14, 1909, and a witness David Hebenstreit testified that he had intercourse with her on March 29th. The evidence of these two witnesses was denied by the relatrix and was impeached to such an extent by their own admissions of contradictory statements made out of court, their admitted willingness to help the defendant and hostility to the relatrix, that a jury would be justified in finding that they were unworthy of belief.

It is also insisted that the giving of the second instruction given on behalf of the relatrix was error. This instruction told the jury that this is a civil proceeding to provide for the support, maintenance and education of the bastard child of the prosecuting witness. This instruction while it stated the law correctly yet it gave the jury no information upon any legal proposition concerning any issue submitted to the jury. It was in the nature of an argument and we cannot see how it could in any way affect the finding of the jury. It was therefore harmless error.

It is also argued that counsel made improper remarks in their argument to the jury but we are of opinion that the remarks were justified by the evidence. It is also urged that the verdict and judgment are not supported by the evidence. After a review of all the evidence we are satisfied that it fully warrants the finding of the jury.

Finding no reversible error the judgment is affirmed.

Affirmed.