author: Mr. Presiding Justice Duncan

text:
    Corn Products Refining Company, Defendant in Error, v. Oriental Candy Company, Plaintiff in Error.
    Gen. No. 16,627.
    1. Contracts — when rebates cannot be set off. If a proposition to rebate is conditioned upon the meeting of all the requirements of the proposition the right to such rebates does not arise unless such requirements have been observed, and then only at the time .and in the manner specified in the proposition.
    2. Contracts — when offer to rebate not illegal. A proposition offering to rebate with respect to purchases already made if the proposee shall voluntarily make certain additional purchases, is not illegal.
    3. Contracts — when violation of antitrust laws constitutes no defense; when such defense available. The fact that the plaintiff in an action of assumpsit was and is an unlawful combination and had violated the federal anti-trust laws, will not defeat a suit by such plaintiff for the recovery of the purchase price of property sold by it under a contract collateral to such wrong committed by it. In order for such a defense to prevail, the contract sought to be enforced must have been to further the objects of the illegal combination.
    4. Contracts — when section 6 of State antitrust act of 1891 no defense. In order to avail of section 6 of the State anti-trust act of 1891 as a defense to an action upon a contract, a violation in this state of such act must be shown; and such a violation is not established by showing that the plaintiff with respect to the particular subject-matter of its manufacture enjoyed a monopoly in Illinois.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Gustav E. Beerly, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Corn Products Refining Company brought this suit to recover of Oriental Candy Company, plaintiff in error, the stun of $817.88, a balance alleged to be due defendant in error on account of certain corn syrup sold to plaintiff in error during the months of November and December, 1908. The court gave judgment for said sum against plaintiff in error. A set-off was claimed by plaintiff in error for the sum of $817.88 for money due it as rebate; for moneys secured by charging it exorbitant prices for glucose and grape sugar; for money wrongfully exacted and withheld from it, and for money secured from it by a scheme or contract in restraint of trade.

It was also set up as a defense, that defendant in error was and is a trust combination and conspiracy, organized to monopolize the manufacture and sale of glucose and grape sugar in the United States, in violation of the laws of Illinois and of the United States, and has no legal capacity to sue; that it was organized by a combination of a number of different manufacturing companies which were then independent and competing glucose manufacturing concerns; that as such combination and conspiracy in restraint of trade it sold the goods sued for at an exorbitant price, and plaintiff in error bought the goods as it was not able to buy them elsewhere; that the goods sued for were sold above the current price and under an illegal and wrongful agreement to return to plaintiff in error the excess on the performance of certain unlawful and wrongful conditions.

The evidence shows that the goo.ds in question were purchased under the following contract in the form of a letter by defendant in error, accepted in writing by plaintiff in error, to wit:

Chicago, January 10, 1908.
Oriental Candy Co.,
Chicago, Ill.
Dear Sir—

We are in receipt of your order through Mr. J. J. Huxtable, for your entire requirements of our regular standard grades of Glucose and Grape Sugars (#70, Climax and Chicago Anhydrous) from January 1st to December 31st, 1908, inclusive, which we agree to furnish you upon the following terms and conditions:

Shipments f. o. b. cars at point of shipment, freight prepaid, as required in about equal monthly quantities.
Guarantee of Price : In consideration of your purchasing your entire supply of Glucose and Grape Sugar from us, if our regular market price in your market is lower on the day of shipment than the price at which your order is entered, we agree to give you the benefit of any such lower price.
Respectfully yours,
Corn Products Manufacturing Company,
S. C. Larkin.”

Plaintiff in error purchased all its requirements of glucose, or corn syrup, for the year 1908 of defendant in error, and made payment of all invoices of glucose purchased until some time in November of that year. After several attempts at settlement said parties entered into the following agreement, to wit:

“Chicago, January 16th, 1909.
Oriental Candy Co.,
Chicago, Ill.
Gentlemen :

You having deducted from your indebtedness to us the sum of $817.88 Dollars, covering your alleged share in profits on shipments for 1908, it is mutually agreed between us that the acceptance by us of check covering your entire indebtedness to us, except the amount which we claim you have no right to deduct for profit-sharing on 1908 shipments, shall in no wise hereafter prejudice our rights to claim that said deduction was wrongfully made, nor shall the payment by you of all of your account with us, except the sum aforesaid, in any manner prejudice your right to claim that said deduction was properly made by you; it being the intention of both parties that the matters remaining in dispute between us shall be limited entirely to the amount covering profit-sharing on 1908 shipments which you claim the right now to deduct, and which right-now to make said deduction is hy us denied.

Corn Products Refining Company,
By E. E. Yan Sickle, Oriental Candy Company,
By V. G. G.”

The written proposition of defendant in error, alleged hy plaintiff in error to be an illegal contract, and in restraint of trade, »etc., was made to it long after the contract for the purchase of glucose, and is as follows, to wit:

December 9th, 1908.
Gentlemen :
Profit Sharing for 1908.

We beg to inform you that this Company will pay to you on December 31st, 1909, fifteen (15) cents per one hundred (100) pounds on the total amount of Unmixed Corn Syrup (Glucose) which shall have been purchased from this Company by and shipped to you during the year 1908, on condition that you and your successors shall have purchased exclusively from this Company, or its successors, all glucose from whatsoever material manufactured, and all Com Syrup, Mixed or Unmixed, delivered in tank cars or barrels, required hy you or your successors during the year 1909, whether for re-sale or for use in your establishment, and shall have complied with all of the terms and conditions of sale, and shall have paid in full all the invoices covering the same.

This profit-sharing payment cannot he anticipated hy deducting from our invoices, but is only payable hy the company’s check on December 31st, 1909, on full compliance by you with the conditions above stated.

Please send us as soon after January 1st as convenient, a full detailed statement showing date of invoice, our order number, number of packages, and number of net pounds covering all shipments made to you during 1908.

Respectfully yours,
Corn Products'Refining Company.”

Plaintiff in error on December 24, 1908, deducted from its indebtedness tbe amount which it would have been entitled to, December 31, 1909, had it complied with the terms of defendant in error’s proposition of December 9, 1908. The refusal of defendant in error to allow that deduction, and the action of the court in sustaining the defendant in error in that refusal, furnish the sole ground of plaintiff in error’s insistence for a reversal of the judgment in this court, as it is admitted that the goods were bought and that said balance is due, unless the special defenses set up are sufficient to defeat the judgment.

If it be conceded that the proposition of defendant in error of December 9, 1908, amounted to a contract between the parties to this suit, and was for that reason binding on the parties, it is very clear that the alleged “profits” of plaintiff in error on the sales of glucose of 1908 cannot be allowed to plaintiff in error under the well established law of contracts. Said profits by the terms of the contract were not to be due and payable until December 31, 1909, and then only on condition that plaintiff in error had made full compliance with the terms and conditions of the contract, by buying, and paying for in full, all glucose, and all corn syrup mixed or unmixed required by it or its successors during the year 1909. The proof shows without dispute that plaintiff in error failed to purchase its requirements of glucose, etc., for 1909 of defendant in error and, therefore, never by the terms of the contract became entitled to the credit in question. On the other hand, if it' be a fact that defendant in error was and is an unlawful combination and had violated the Federal Anti-Trust Laws, as charged by plaintiff in error, such fact would not defeat the defendant in error in its suit for the recovery of the purchase price of property sold by it under a contract collateral to such wrong committed by it. In order for such a defense to prevail, the contract sought to be enforced must have been made to further the objects of the illegal combination. This was the rule under the common law, and it is also the rule under the Federal Anti-Trust Law, as declared by the Federal Courts, and by those decisions the courts of this state are bound. National Bank & Loan Co. v. Petrie, 189 U. S. 423; Connolly v. Union Sewer Pipe Co., 184 U. S. 540. The court in the latter case said:

“The buyer could not refuse to comply with his contract of purchase upon the ground that the seller was an illegal combination which might be restrained or suppressed in the mode prescribed by the act of Congress; for Congress did not declare that a combination illegally formed under the act of 1890 should not, in the conduct of its business, become the owner of property which it might sell to whomsoever wished to buy it. So that there is no necessary illegal connection here between the sale of pipe to the defendants by the plaintiff corporation and the alleged arrangement made by it with other corporations, companies and firms. The contracts under which the pipe in question was sold were, as already said, collateral to the arrangement for the combination referred to, and this is not an action to enforce the terms of such arrangement. That combination may have been illegal, and yet the sale to the defendants was valid.”

The proposition of the defendant in error of December 9, 1908, was not illegal. It was made to plaintiff in. error after its contract for purchases for the year 1908, which is also legal and binding; and appears to have been a mere voluntary proposition on the part of defendant in error, without imposing any obligation whatever upon plaintiff in error. It was a mere statement or proposition to give plaintiff in error certain profits on its purchases of 1908, on condition that it do certain things therein named, which plaintiff in error never did do, and which it never, was obligated to do, and was never in any way compelled or urged to do. It was simply a proposition that might have become an obligation on the part of defendant in error had plaintiff in error seen fit to have accepted its terms and to have performed the conditions upon which it was informed it could have the profits therein named. It is not an illegal contract or contract in restraint of trade, and would not have been, if it had been accepted and performed on the part of plaintiff in error. It was not in any sense a part of the contract for the purchase by plaintiff in error for the year 1908, and in no way affected the validity of that contract. This same proposition, in substance, or so-called contract, was in every way upheld by the Appellate Court of Indiana in the case of Bessire & Co. v. Corn Products Mfg. Co., 94 N. E. 353. Similar contracts have been held in other cases to be legal and not in restraint of trade. Dennehy v. McNulta, 86 Fed. 825; United States v. Greenhut, 51 Fed. 213; In re Corning, 51 Fed. 205; In re Greene, 52 Fed. 104; Whitwell v. Continental Trust Co., 125 Fed. 454; Walsh v. Dwight, 58 N. Y. Sup. 91; Moroney H. Co. v. Godwin P. Co., 120 S. W. 1088; Brown v. Raunsavell, 78 Ill. 589.

By Section 6 of the Anti-Trust statutes of 1891, it is provided:

“Any purchaser of ainy article or commodity from any individual, company or corporation transacting business contrary to any provision of the preceding sections of this act shall not be liable for the price or payment of such article or commodity, and may plead this act as a defense to any suit for such price or payment. ’

In People v. Butler St. F. & I. Co., 201 Ill. 236, our Supreme Court have decided, in substance, that as the legislature of Illinois is powerless to pass an enactment making an act committed in a foreign state punishable here in this state, our courts in construing the act, must necessarily confine it to those matters upon which the General Assembly has power to act, viz., trusts, pools, combinations, etc., formed within the state of Illinois. In other words, the statute is only violated by the doing of some one or more of the acts prohibited by the statute within the state of Dlinois. A foreign corporation by entering into a combine within Illinois, which is ¡forbidden by the statute, would stand upon the same footing as a domestic corporation, and would be liable to tbe penalties of said act, without regard to. tbe residence of tbe corporation. But as Section 6 of said act is by its express terms only leveled against “any individual, company or corporation, transacting business contrary to any provision of tbe preceding sections” of tbe act, it cannot be invoked as a defense to tbis act, as no violations of tbe said act witbin tbis state bave been proved. Chicago Wall P. Mills v. General P. Co., 147 Fed. 491.

Defendant in error is a New Jersey corporation, as shown by tbe evidence and tbe act charged against it in this case, tbe bolding by it of stocks of other corporations, is under tbe authority of that state, and they are held by it witbin that state. None of tbe facts proved, or sought to be proved by plaintiff in error, tended to show a violation of tbe anti-trust laws of Illinois. For tbe reasons aforesaid, tbe court did not err in refusing to admit certain evidence offered tending to show defendant in error to be an unlawful combine, etc., as tbe evidence was not confined to acts done within Illinois. Plaintiff in error has not specifically pointed out except in few instances tbe evidence excluded by tbe court, and which it is claimed was material to tbe issues, and tbe evidence specifically set forth as such excluded evidence, that the defendant in error bad no competition in Illinois or in tbe United States, that it was tbe only manufacturer of glucose in tbe United States since 1906, etc., does not bave any tendency to establish a defense against defendant in error’s claim. Tbe same is true as already indicated as to tbe affidavit of tbe President of Corn Products Befining Company as to tbe stocks owned and controlled in other companies.

As plaintiff in error did not complain of tbe giving of instructions in tbe trial court, no objections thereto will be considered by tbis court. Grollman v. Lake Geneva P. S. Co., 147 Ill. App. 332.

Tbe judgment of tbe court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Sarah Alice Houston et al., Appellees, v. Patrick Quinn et al., Appellants.
    1. Trial — when conduct of counsel will not reverse. If physical infirmities are necessarily shown by the evidence a reference thereto will not reverse in the absence of prejudice resulting, especially if the intention was not to arouse sympathy.
    2. Instructions — when as to damages will not reverse. An instruction upon this subject will not reverse if the court is satisfied that the jury understood the instruction as it was intended to be construed, the instruction so understood being proper.
    3. Damages — what competent upon the question of pecuniary loss. If there is actual loss of pecuniary aid the jury in estimating the amount of such loss may consider the probable length of the respective lives of the deceased and next of kin.
    4. Evidence — how age may be established. The age of a person may he approximated by the jury from considering the appearance of the person, the age of the marriage of such person and the ages of his or her children.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creigi-iton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Rufus M. Potts, Carl M. Reisch, W. H. Nelms and At.tt-ret) Adams, for appellants.

      C. F. Mortimer and John Gr. Friedmeyer, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is ah action under section 9 of the Dram-Shop Act, by the widow and minor children of Clarence Houston, deceased, against Patrick Quinn and Anna K. Midden, for the recovery of damages resulting from loss of their means of support, by reason of the death of the said Clarence Houston, which they allege was caused by the sale and gift to him of intoxicating liquors by the defendant Quinn, who. conducted a dram-shop in a building owned by the defendant Midden. A trial by jury resulted in a verdict and judgment against the defendants for $2,500.

The declaration charges, and the evidence warranted the jury in finding, that on December 13, 1910, the defendant Quinn was the keeper of a dram-shop in a building owned by the defendant Midden, in the city of Springfield; that upon that day the said Quinn sold to the said Clarence Houston intoxicating liquor in such quantities as to cause him to become so intoxicated that he was unable to perceive or apprehend danger from physical causes, and that in consequence thereof he fell against a moving street car and was so injured that his death resulted. The only reasons urged and argued for reversal of the judgment are, that one of counsel for the plaintiff made improper statements to the jury; that the trial court erred in giving to the jury the third instruction offered by the plaintiffs, and that the verdict and judgment are excessive.

It appears from the evidence that both the deceased and his widow were deaf mutes, and in his opening statement to the jury, one of counsel for the plaintiffs called the attention of the jury to such fact. It is insisted that the sympathies of the jury were thereby unduly aroused, to the prejudice of the defendants. The infirmities of the parties referred to were necessarily developed by legitimate evidence upon the trial. The connection in which the reference thereto was made convinces ns that the intention of counsel was not that suggested, and that such remarks were in no way intended to and could not have unduly aroused the sympathy of the jury.

The principal complaint made of the plaintiff’s third given instruction is that it permitted the jury to take into consideration in assessing damages, the loss of support sustained by the plaintiffs prior to the death of the said Houston by reason of his habit of drinking intoxicating liquor. We do not so construe said instruction. We are satisfied that the jury were not misled thereby. It merely permitted them to consider the evidence of what had occurred in the past, to aid them in determining what damages had been sustained by the plaintiffs through being deprived of future support, which were the only damages claimed by the pleadings or the instructions given or offered on behalf of plaintiffs. Evidence as to the habits of thrift, industry and ability to work, of the deceased, and whether or not he was disposed to and did furnish proper maintenance for the plaintiffs out of his earnings, was proper to be considered by the jury in determining the extent to which the plaintiffs would be damaged by reason of his death. This, we think, was the purport of the language criticised, and we are satisfied the jury so understood it.

It is further urged that the instruction is erroneous for the reason that it told the jury that in arriving at the damages sustained they had the right to take into consideration the ages of the plaintiffs. If there is actual loss of pecuniary aid, the jury in estimating the amount of such loss may consider the probable length of the respective lives of the deceased and next of kin. Swift v. Gaylord, 229 Ill. 330; Bonato v. Peabody, 156 Ill. App. 196; Goddard v. Enzler, 222 Ill. 462; Presley v. Tel. Co., 158 Ill. App. 220. It is insisted that the instructions were in this respect erroneous because there was no proof in the record of the age of the widow. This being a civil action the jury clearly had the right to, and doubtless did, determine her approximate age from her appearance while testifying, the date of her marriage, and the ages of her children.

We do not think the damages awarded are excessive. The evidence shows that Houston was forty-eight years of age, was healthy and industrious; that he earned from four dollars to four dollars and a half a day, and was employed three or four days a week, during eight months in the year, notwithstanding he at times drank to excess, and that he spent substantially all of his earnings in the support of his family.

We find no prejudicial error in the record and the judgment' will be affirmed.

Affirmed.


text:
    Nick Wetzel, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Common carriers — burden to excuse delay in transportation. If injury results to property in transit by reason of delay, tbe burden to justify such delay is upon tbe carrier.
    Action on the case. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    George B. Gillespie, for appellant; Glennon, Cart, Walker & Howe, Shepherd & Trogdon and Gillespie & Fitzgerald, of counsel.
    Stewart W. Kinkaid, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is ah appeal by the defendant from a judgment for $199 rendered against it in an action on the case. The first count of the declaration charges that the plaintiff on September 30, 1910, at about four o’clock p. m. delivered to the defendant seventy-three hogs of an average weight of 270 pounds, to be safely carried by the defendant from Wetzel, Illinois, to Indianapolis, Indiana, within a reasonable time, and safely delivered to the plaintiff; that a reasonable time for the transportation as aforesaid was eight hours; that the hogs were fat and heavy, in good health and good condition, at the time they were so delivered to the defendant; that at the time they were so delivered as aforesaid, and for some days then next following, the weather was very warm, and said hogs being fat and heavy, it was the duty of the defendant to keep the hogs moving and deliver them at Indianapolis within a reasonable time and to 'cause the said hogs to be drenched with water so as to prevent them from dying from heat; that the defendant failed to carry said hogs from said Wetzel to Indianapolis within a reasonable time, or to cause the said hogs to be drenched with water while being so transported, or to safely deliver them to the plaintiff, and that by the negligence of the. defendant in that behalf, eight of said hogs died from overheating in defendant’s cars, and were wholly lost to the plaintiff.

The second count charges that such hogs were being so transported by the plaintiff for the purpose of selling the same upon the market for fat hogs in Indianapolis; that if the defendant had exercised proper diligence in transporting said hogs, they would have been delivered to the plaintiff in time to be sold upon the market on the morning of October 1, 1910, for $9.30 per hundred weight; that by reason of the failure of the defendant to exercise proper diligence in transporting said hogs, they were not delivered to the plaintiff at Indianapolis until about eleven o’clock a. m. of October 1, 1910, after the market had closed for that day, whereby the plaintiff was compelled to and did sell-the said hogs for..$9.20 per hundred weight.

The evidence discloses that eight hours was a reasonable time in which to transport and deliver the hogs at their destination; that they were delivered to the defendant at four o ’clock p. m. on September 30th; that the car in which they were loaded was permitted to remain at Paris, an intermediate station, until about four o’clock on the morning of October 1st, causing a delay of about six hours; that sixteen hours elapsed between the time they were received by the defendant and their delivery to the plaintiff at Indianapolis at ten o’clock a. m. on October 1st; that the weather was very warm on September 30th, but became cooler at midnight; that the hogs were not watered until fourteen hours after they were received; that they were in good health and condition when delivered to the defendant, and that upon their delivery in Indianapolis eight of them were found to be dead.

While the high temperature and the failure to sufficiently water the hogs contributed thereto, the jury was not unwarranted in finding that the death of the hogs was occasioned by the unreasonable delay in transportation. There was no evidence adduced by the defendant to meet the burden cast upon it to show that such delay and failure to water the hogs was not occasioned by its fault. Under the rule laid down in R. R. Co. v. Thompson, 71 Ill. 434, the verdict was warranted. No loss by reason of the failure to deliver the surviving hogs in time for the Indianapolis market as charged in the second count of the declaration was established. The allegations of the first count were sufficient upon which to base the verdict returned. The allegation of a failure to drench the hogs may properly be treated as surplusage.

We find no prejudicial error in the rulings of the court upon the evidence or instructions. The judgment of the Circuit Court is affirmed.

■Affirmed.


text:
    E. St. John, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Common carriers — burden to establish termination of relation of carrier. By showing delivery to the carrier and failure to deliver by the carrier the burden is cast upon the carrier to show that at the time the loss sued for occurred its liability as a carrier had ceased.
    2. Warehousemen — extent of liability of. A warehouseman is liable only for ordinary care and diligence in the preservation of property committed to its care.
    3. Instructions — ignoring_ material issue. An instruction which ignores a material issue in the cause is erroneous if it concludes with a direction to the jury to find in a particular way, and such an instruction is not cured by the contents of other instructions given.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cumberland county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Brewer & Brewer, for appellant; John Gr. Brennan, of counsel.
    Emery Andrews, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This suit was brought before a justice of the peace, and from thence taken by appeal to the Circuit Court, where trial resulted in a verdict and judgment in favor of the plaintiff for $152.78. The undisputed facts appearing in evidence are that the plaintiff shipped a car-load of hay from Bradbury, Illinois, a station upon the defendant’s railroad, to Chicago, Illinois; the hay was billed in the name of the plaintiff to his order “Notify Van Wie & Moorehead.” The plaintiff attached to the bill of lading a sight draft upon Van Wie & Moorehead of Chicago, and delivered the same to the First National Bank of Toledo, lilinois. The car arrived in Chicago in good condition, on September 10, 1910, and was afterwards, while on track, destroyed by fire. One of the important issues in the case is whether or not at the time the hay was destroyed, the defendant bore to the same the relation of common carrier or that of warehouseman. In Schumacher v. Ry. Co., 207 Ill. 199, the court defines and distinguishes the two relations in the following language: “Railroads as to freights committed to their charge, during the period of transportation and until they are delivered, bear two well recognized relations. While in transit and for a reasonable time after reaching the point of destination, they owe the duties and bear the relation of common carriers, and when the car containing the freight is delivered to the consignee upon .his own track, or at the place selected by him for unloading, if he have one, or to the consignee upon the company’s usual and customary track for the discharge of freight, with reasonable and proper opportunity to the consignee to take the. same, or when placed in the warehouse of such company or the warehouse of another selected by them, in any and all such cases such companies then bear to such freight the relation of warehouseman.”

The plaintiff by showing delivery to the defendant for transportation of the hay in question, and the failure to deliver the same, cast upon the defendant the burden of showing that at the time the hay was destroyed its liability as a common carrier had ceased. In the event of its failure to make such proof, the burden was cast upon it to prove that the loss of the hay was due to the act of Grod or the public enemy. R. Co. v. Montgomery, 39 Ill. 335; Express Co. v. Wilson, 81 Ill. 339. On the contrary,- if the relation of the defendant to the hay was that of a warehouseman, it was liable only for ordinary care and diligence in the preservation of the property. R. Co. v. Montgomery, supra; R. Co. v. Carter, 165 Ill. 570.

It will be seen that the question as to whether or not the liability of the defendant was that of a common carrier or of warehouseman, was of special importance, and perhaps decisive of the defendant’s liability. Sweeney, the yard clerk of the defendant, testified that he was on duty in the yards of the defendant on September 10, 1910, from» 6:45 a. m. until noon; that he saw the car in question at 7 o ’clock a. m. on one of the unloading tracks of the defendant, known as the team track; that the car was carded “Hay — Shippers Order —Notify Van Wie & Moorehead;” that the seals on both sides were intact; that as was the custom, he posted in the scale office a copy of his track report, which contained the following entry; “Car 11154 Hay Arrived 11:07 a. m. Shippers order Van Wie & Moore-head;” that on the morning in question Van Wie called at the scale office at about 9 o’clock, ascertained the number of the car, and asked what track it was on, and that witness told him; that he returned at 9:30 o’clock and told witness it was a*fair car of hay. Van Wie testified that he was advised at about 9 or 9:30 o’clock in the forenoon of September 10th that the ear in question was at the Weldon yards; that he went to where the car was, opened both doors and examined the hay, breaking the seals in order to do so; that he was not certain whether he closed the doors or not. The evidence shows that the Weldon yard or team track begins at Fourteenth street and runs south about a block and a half, and that it was the usual and customary track for delivery of freight by the defendant. The evidence of the defendant’s watchman shows that the hay in the car was set oh fire hy a small boy at about 3:30 o’clock in the afternoon of the day in question.

The foregoing evidence, which is practically uncontradicted, clearly shows that the car was delivered upon the defendant’s usuál and customary track for the discharge of freight, which was sufficient in the absence of proof that a particular place of delivery was designated by the plaintiff; that Van Wie & Moorehead had full notice of its arrival, and that they and the plaintiff had reasonable and proper opportunity to take the same. In such state of the proof the liability of the defendant was that of a warehouseman only, and the only question for the determination of the jury was whether or not it exercised ordinary care and diligence for the preservation of the property; the burden being upon it,’the defendant, to show such degree of care. Cumins v. Wood, 44 Ill. 416; Funkhouser v. Wagner, 62 Ill. 59.

The first instruction given at the request of the plaintiff told the jury that proof of the delivery of the hay by the plaintiff to the defendant at Bradbury made a prima facie case; that the burden was then upon the defendant to account for said hay, and that if they believed from the evidence that the defendant failed to deliver said hay to the plaintiff or to Van Wie & Moorehead, as provided by the bill of lading, their verdict should be for the plaintiff. It will be seen that the instruction, which directs a verdict, requires that the defendant in order to escape liability as an insurer, must have actually delivered the goods to the plaintiff or Van Wie & Moorehead, and ignores the question as to whether its liability was that of warehouseman or of carrier. The instruction was misleading in this respect and the error was not cured by other instructions given. The rule invoked by the plaintiff, that the entire series are to be considered in determining whether the jury could have been misled is not applicable when the improper instruction directs a verdict. Mooney v. City, 239 Ill. 414.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Carrie M. Ballah, Appellee, v. Peoria Life Association, Appellant.

      Insurance — when estoppel to enforce forfeiture arises. If the practice be adopted by a company of accepting premiums after their due date, personal notice must he given to the insured by the company that prompt payment of premiums will thereafter he required, otherwise a forfeiture cannot he made because of failure promptly to pay.

      Assumpsit. Appeal from 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 March 15, 1912.
    Rehearing denied April 18, 1912.

      Certiorari denied by Supreme Court (mating opinion final).
    ~Woleenbarger & May and Dwyer & Dwyer, for appellant.
    A. B. Dennis and Thomas A. Graham, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit upon an insurance policy, and is before this court on appeal for the second time. The first trial resulted in a judgment for plaintiff, which was reversed by this court and the cause remanded. 159 Ill. App. 222. Upon another trial the plaintiff recovered judgment for $1,075. The declaration upon which the issues were tried, alleges the death of the insured on February 6, 1909; that said insured kept and performed all of the conditions of the policy except the payment of the quarterly premium of $5.04, which was due according to the terms of the policy, on November 12, 1908; that it was the custom of the defendant to accept premiums on said policy after they became due and to notify the insured of the premiums becoming due; that it did not notify him of the premium becoming due November 12, 1908, whereby it waived prompt payment of said premium as provided in the policy. The first plea of the defendant avers that the prompt payments of the premiums were a condition precedent to continuing said policy in force; that the quarterly premium due November 12, 1908, was not paid when due, and was not paid on or before the death of the insured, and that the policy ipso facto became null and void upon the failure to pay said premium and so remained to the date of the death of the insured. The second plea avers that the policy provides that if any premium be not paid when due, the policy shall become null and void, and avers that notice of the premium becoming due on November 12, 1908, was sent to the insured from the home office of the defendant on October 30, 1908, according to the custom of the defendant; that the said premium was not paid when due nor at any time thereafter, and that nothing was done by the insured to re-instate said policy.

To support the declaration the plaintiff introduced in evidence the policy which was issued and bears date November 12, 1903, together with certain receipts for premiums paid upon said policy, and also entries in the cash books of the defendant which showed that the first premium of $18.53 which should have been paid at the time of the delivery of the policy, was paid in two installments, — the first at the time the policy was delivered, and the balance one week later; that nine of the eleven premiums that became due on the policy prior to November 12, 1908, were paid after they became due, and two of them before they became due. The evidence further showed that the defendant never treated the policy as forfeited nor required the insured to be re-instated because of the failure to pay the premiums promptly when due, and further that the official receipt for the premium which became due November 12, 1908, was still held at the local office of the defendant at the time of the death of the insured. It does not appear that the defendant ever at any time notified the insured that it would discontinue its practice of accepting payments of premiums after they were due, or that it would thereafter require a strict compliance with the provisions of the policy, or that the policy would he forfeited if the premium falling due November 12, 1908, was not paid on or before a certain date.

In our opinion upon the former appeal, we held that where an insurance company in its course of dealing with the insured, led him to a reasonable belief that so much of the contract as provides for a forfeiture in a certain event would not be insisted upon, the company will not be allowed to set up such a forfeiture as a defense in a suit upon the policy. Ballah v. Peoria Life Association, supra. The custom, usage and practice of receiving and crediting assessments may warrant the jury in finding that prompt payment and the right of forfeiture were waived by the company. Jones v. Knights of Honor, 236 Ill. 113. We are not prepared to hold that the finding of the jury that, the practice of the defendant in accepting the payment of premiums after the same were in default, amounted to a waiver of the condition of the policy requiring prompt payment, was clearly unwarranted by the evidence. That the defendant was by such course estopped from insisting upon a forfeiture of the policy for non-payment within the time fixed by the policy, in the absence of personal notice to the insured that thereafter prompt payment would be required, seems to be well settled. Benefit Association v. Tucker, 157 Ill. 201; Ins. Co. v. Boss, 159 Ill. 476.

The contention of the defendant that there was a variance between the allegations and proofs in some particulars, cannot be now urged, for the reason that the defendant’s counsel failed to object to the evidence in question at the time it was offered. Swift v. Rutkowski, 182 Ill. 18.

The judgment of the Circuit Court is affirmed."

Affirmed.


text:
    Joseph F. Fisher, Appellant, v. Brown Leesman, Appellee.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Instructions — when refusal of correct will not reverse. The refusal of an instruction containing a correct abstract proposition of law will ordinarily not effect a reversal of a judgment.
    Action commenced before a justice of the peace. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Mangas & Hill, for appellant.
    Beach & Trapp, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action instituted before a justice of the peace for the recovery of damages alleged to have resulted to the plaintiff by reason of the defendant having destroyed a division hedge fence between their respective properties, without first having given notice in writing to the plaintiff as provided by sections 14 and 15 chapter 54 of the statute relating to fences. The cause was taken by appeal to the Circuit Court and there tried by a jury, which found the issues for the defendant. Judgment was entered upon said verdict, whereupon the plaintiff appealed.

The evidence for the plaintiff shows that in 1870 one Fossett owned a tract of land upon the north line of which he built a board fence; that thereafter the plaintiff bought the tract lying north of said fence and immediately adjoining the Fossett land for the distance of a quarter of a mile; that said fence having become decayed and useless, the plaintiff and Fossett jointly built a new board fence upon about tbe same line as the old one; that sometime thereafter, during 1877 or 1878, Fossett set out a hedge which subsequent surveys show was upon his own land, about six or eight feet south of the board fence; that in 1882 Fossett sold'his land to the defendant; that at that time the board fence was sufficient to turn stock and remained standing until long after the hedge had grown large enough for that purpose, but that it gradually fell or was taken down; that shortly after the defendant moved upon his land, the plaintiff told him that if he would trim the hedge and keep it up he could join on to it and use it as a fence, and thereupon the defendant joined his cross-fences to the hedge; that in January, 1909, the defendant cut down one-half of the hedge and in February thereafter the plaintiff built a new fence the entire length and about two feet north of the hedge, the remaining hedge fence being insufficient to turn stock, and then instituted the present suit.

The evidence introduced by the plaintiff further tends to show that there was a.parol agreement between Fossett and the plaintiff at the time of planting the hedge, that it should be accepted as the line between their properties ; that it should belong to the plaintiff; that it was planted as near the true line as they could determine, and was accepted and acquiesced in by them for many years as the boundary line, and that the defendant purchased with full knowledge of such latter fact.

The evidence adduced by the defendant tended to show that at the time he purchased the land he had no knowledge of any claim on the part of the plaintiff of ownership in the hedge; and further, that the plaintiff failed to keep the hedge trimmed, but permitted the roots to spread over the ground so that it failed to turn stock, and rendered a new fence absolutely necessary.

At the instance of the plaintiff the court instructed the jury that if they believed from a preponderance of the' evidence- that Fossett planted the hedge fence in question at the time he owned the land, and that he gave the said hedge to the plaintiff to keep and maintain, and that the defendant afterward purchased the premises from Fossett with the understanding that the said hedge fence was the property of the plaintiff, that the same became and was the property of the plaintiff, and further that if the boundary line between the properties was agreed upon between the plaintiff and Fossett, and that at the time the defendant purchased from Fossett he was informed and knew of the location of the said fence, and assented or agreed that the same was the boundary line between said lands, and that said fence had so remained as such boundary line, then the same established the boundary line, no matter whether it was or was not on the actual line of division between the premises.

On behalf of the defendant the court instructed the jury that if they believed from the evidence that Fossett and the plaintiff together built a division fence on what they supposed was the boundary line, and that thereafter Fossett planted the hedge fence some feet on his side of what he believed to be the boundary line, and some 6 or 8 feet south of the board fence built by him and the plaintiff, then in law the hedge fence belonged to Fossett as owner of the land and passed to the defendant under the deed of conveyance to him, as part of the land so sold to him, and that he had a right to cut down said hedge fence, unless they furthér believed that Fossett and the plaintiff by agreement fixed said hedge fence as the boundary line between them, and that the said hedge fence was to be the property of the plaintiff upon the plaintiff trimming and maintaining the entire hedge fence between him and Fossett.

The controlling issues of fact thus presented to the jury were whether an understanding and arrangement between Fossett and the plaintiff were entered into as claimed, and whether the defendant purchased with full knowledge of the same and consented that the line of the hedge should constitute the boundary line.

The evidence is conflicting and irreconcilable. The jury would not have been unwarranted in determining the issues of fact either way, depending upon the testimony to which they gave credence. We do not feel disposed therefore to disturb their finding.

The refusal of the seventh instruction offered by the plaintiff did not constitute error, it being but an abstract proposition of law. Instructions of such character tend to confuse and mislead the jury, and it is seldom, if ever, error to refuse the same. Moreover the instruction seems to assume that the hedge was regarded by both parties as the boundary line which question was one of the controverted issues in the case.

We find no prejudicial error in the record and the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Putertbaugh

text:
    John M. Hogg, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Attorney and client — what does not affect statutory lien of former. The statute giving the right to plaintiffs under certain circumstances to prosecute as poor persons is not modified or affected by the statute in regard to attorney’s liens and an attorney may preserve a lien notwithstanding the plaintiff in the cause sues as a poor person.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. CkeiGhton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Rehearing denied April 3, 1912.
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    Deennan & Lawlee, for appellee.
   Mr. Justice Putertbaugh

delivered the opinion of the court.

This appeal is prosecuted by the defendant to reverse a judgment rendered against it for $2,500 in an action in case for personal injuries, alleged to have been sustained by the plaintiff through the negligence of said defendant. The first additional count of the declaration charges, in substance, that the defendant’s railroad crossed in a northerly direction, a public highway in the city of Auburn, running east and west; that south of said highway and immediately west of the said railroad and within seven feet of the track, was a building 68 feet wide and 100 feet long, which obstructed the view of persons traveling upon said highway from west to east; that said highway was a public thoroughfare and was daily used by many children going to and from school; that by reason of said conditions said crossing was unusually dangerous, and due care and caution on the part of said defendant in approaching and crossing the same with its engines and cars, required that it should, and it became its duty to use other precautions for the safety of persons using the same, than the ringing of a bell or sounding of a whistle as required by the statute in such case; that notwithstanding such duty of the defendant, it negligently drove one of its locomotive engines with cars attached thereto, backward upon and across said crossing, and in so doing negligently failed to give any warning of the approach of said engine and cars, other than the. ringing of a hell; that by reason of snch negligence, while the plaintiff, a boy of seven years of age, was traveling toward the east npon said public highway, said engine and cars ran upon and against him, and thereby so injured him that amputation of one of his legs became necessary. The second additional count charges, in substance, that it was the duty of the defendant in approaching said crossing, to look out for the safety of persons traveling upon said street and about to use said crossing, and to give due and timely warning of the approach of said engine and cars; that notwithstanding such duty the defendant drove a certain engine and cars attached thereto across said crossing, and in so doing negligently failed and omitted to give due and timely warning of the approach of the same to and upon said crossing, whereby the plaintiff was injured as- charged in said first additional count. Both counts contain the usual averments of care and caution on the part of the plaintiff. The first original count is predicated upon the failure to give the statutory signals. Inasmuch as it clearly appears from the evidence that the bell upon the engine was being rung at and before the time the plaintiff was injured it will not be necessary to further consider such count. To this declaration the general issue was interposed. The suit was commenced in forma pauperis as provided by the statute. Thereafter a notice was served upon the defendant by the attorneys for plaintiff claiming a lien for their attorney fees, as provided by the statute. Rev. Stat. 1909, page 1441. After service of such notice the defendant entered a motion for a rule on the attorneys for the plaintiff to give security for costs. In response thereto the plaintiff entered a cross-motion, supported by affidavit, for leave to plaintiff to further prosecute the suit in forma pauperis, which cross-motion was allowed and the original motion of the defendant denied.

The evidence discloses that Monroe street is ahont 60 feet wide, and that the right of way of the defendant is about 100 feet wide; that on the southwest corner of the intersection of Monroe street and the right of way, there was a building about 70 feet wide east and west and about 112 feet long, which was used for storing lumber and is referred to in the evidence as the “lumber yard”; that said building abuts directly upon the only sidewalk on Monroe street, which sidewalk in turn abuts upon the right of way; that 80 feet east of said building is the “business” track of the defendant, which was not used for any other' purpose than the unloading and loading of cars, no switching being done thereupon; that east of the “business” track were the main and other tracks of the defendant ; that the view south along the railroad track, after passing the corner of the building, is wholly unobstructed, and a car upon said track two blocks distant from the crossing could be readily seen but that until one reached a point about eight feet of the track such view was entirely obstructed by such building; and further, that Monroe street was daily crossed by many children, ranging from 6 to 15 years of age, in going to and returning" from school. The evidence further shows that prior to March 12, 1910, the plaintiff who was on that day between seven and eight years of age, had for several months lived with his parents on the south side of Monroe street, in the block east of the tracks; that at about 11:30 o’clock in the morning of the day in question he started home from school. He testified, in substance, that he started from the road crossing up next to the house and ran down to the lumber yard door, and then walked on the track, and when he saw the train coming with a car in front, he commenced to run along the track trying to get away from the train, but that the bumper of the car struck him knocking him down; that he heard no bell ringing and saw nobody on the car, but that as the car hit him he heard some one on the engine shont “Get ont of the way.” He further testified that he ran upon the track without looking to see if a train was coming. Owen, a brakeman, testified that he was on top of the car at the time of the accident; that he saw the plaintiff run from behind the lumber yard and directly across the track; that he, the witness, yelled at him, and that the plaintiff then wheeled and ran “cataeornered” down the track. The witnesses for the defendant testified that the train, which consisted of an engine and one freight car, was runaing at the time at the rate of from three to five miles an hour, while Lee Hogg, the brother of the plaintiff, testified that it was moving faster than the plaintiff could run.

It will be seen that the evidence as to whether the plaintiff was running or walking at the time he first saw the train as to the speed of the train, and as to whether there was any one on top of the car at the 'time in question, is in conflict. We cannot say that the jury were manifestly unwarranted in believing the witnesses for the plaintiff upon these issues rather than those who testified for the defendant. That the crossing in question was a dangerous one, especially for children, cannot be denied. Whether in the exercise of due care the defendant was bound, in view of the surroundings, to adopt other precautions than the mere ringing of a bell, and whether the plaintiff exercised the degree of care for his own safety that a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily have used in the same situation, under the same or similar circumstances, were properly submitted to the jury. The jury has determined such issues in favor of the plaintiff, and we would not feel justified in disturbing their findings upon the ground that the same were unwarranted by the evidence.

Notwithstanding authorities of other jurisdictions cited by counsel seem to sustain their contention that the court erred in overruling the motion to require the plaintiff’s attorneys, in view of the fact that they had asserted their right to a statutory lien npon any judgment to he recovered, to give security for costs, we are not prepared to hold that the statute giving the right to plaintiffs under certain circumstances, to prosecute as poor persons, is modified or affected by the statute in regard to attorneys’ liens. We think the matter remains within the discretion of the court notwithstanding snch statute.

We find no error in the record, and the judgment of the Circuit Court is accordingly affirmed.'

Affirmed.


text:
    W. G. Anderson, Appellee, v. George W. Arnold, Appellant.
    Masters in chancery — when findings of fact not disturbed. Unless the evidence is clearly contrary to the findings of fact by the master, such findings will not be disturbed on review.
    Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Welty, Steeling & Whitmore, for appellant.
    A. M. Hester and Barry & Morrissey, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendant from a decree requiring him to pay to the complainant the sum of $2,194.38. The bill upon which such decree was rendered alleges, in substance, that the complainant and defendant, together with W. D. Hawk and W. H. Anderson, became security upon three certain notes executed by one Wilhite, and payable to the Corn Belt Bank of Bloomington, two for the sum of $70 each and one for the sum of $4,292.72; that the complainant was compelled to and did pay each of said notes, with interest thereon; that the said Wilhite, the maker of said notes, and the said Hawk, one of the said sureties,- were insolvent, whereby the defendant, as co-surety, became liable to the complainant for one-third of the amount paid by him in satisfaction of said notes, together with interest thereon from the date of the respective payments.

The answer of the defendant admits the making and payment of said notes; denies the insolvency of Wilhite and Hawk, and alleges that the said notes for $70 each represented interest upon the note for. $4,292.72; that at the time the latter note was executed, and for the purpose of protecting the sureties thereon, Wilhite procured to be issued to and placed in the hands of the complainant a certificate for shares of the capital stock of a coal company, of the par value of about $4,000; that afterward the complainant traded said stock for certain real estate in Iowa, taking the title to the same in his own name, and had since held and claimed to own said real estate; that the complainant having thus converted said stock to his own use, the defendant should only be required to contribute his share of the amount paid in satisfaction of said notes, after charging the complainant with the par value of said stock.

The master in chancery, to whom the cause was referred, found that both Wilhite and Hawk were insolvent as alleged in the bill; that the certificate of stock in the coal company was in fact issued to W. H. Anderson as trustee, and not to the complainant, as charged in the bill; that upon the hearing before him, the said master, the said W. H. Anderson produced said certificate of stock and offered the same in evidence, and testified that it fiad never been out of bis possession and was not used in said land trade; tfiat while tfiere was evidence tending to support tfie claim tfiat tfie certificate was so used as a part of tfie consideration for tfie deed to said real estate, no evidence was offered tending to show tfiat either of tfie sureties interested in said certificate had ever requested tfiat tfie same be sold for their benefit or that tfiere had ever been any notice to sell tfie same, or. tfiat said shares of stock had any market value in cash, or tfiat tfie value of tfie same had changed since its issuance to said trustee. Tfie master further field tfiat inasmuch as said certificate was thus under tfie control of tfie court, where either surety might by proper motion get tfie benefit of it as originally contemplated when issued to tfie trustee, and for tfie further reason tfiat tfie evidence failed to show any damage to either party by reason of anything tfie complainant may have done concerning said certificate, tfie defendant was not entitled to any credit as against the complainant growing out of said certificate, and recommended a decree in accordance with tfie prayer of tfie bill: Exceptions by tfie defendant to tfie master’s report were overruled by tfie court, and a decree rendered in accordance therewith.

Tfie evidence clearly shows' tfiat tfie certificate of stock was issued to W. H. Anderson, with tfie full knowledge and consent of tfie defendant; tfiat tfie same had never since been assigned but had been field by W. H. Anderson from tfie time it was so delivered to bim until after tfie commencement of tfie present suit. Tfie evidence further shows tfiat tfie Iowa land was conveyed to W. H. Anderson and not to tfie complainant as charged in tfie bill. Tfie testimony of Castle-man, who represented tfie owner of tfie Iowa real estate in tfie sale thereof, tends to show tfiat tfie only stock delivered to tfie vendor was about fourteen shares of which the complainant was the individual owner. While the evidence discloses that a contract was prepared purporting to be between the owner of the real estate on the one part, and the complainant, W. H. Anderson and Hawk on the other, by which it was agreed that stock of the coal company to the par value of $9,750 should be turned in as part consideration for the land, it further shows that the name of the complainant was attached thereto by W. H. Anderson, that the complainant thereafter repudiated said contract and was released by Castleman therefrom. The evidence further shows that the shares of stock in question had no market value and were of little, if any, actual value.

After a careful consideration of all the evidence, we are of opinion that the greater weight thereof fails to show that the complainant converted said stock to his own use. In this state of the proof, the decree of the Circuit Court was proper and is affirmed.

Affirmed.


text:
    Nathan Bond, Appellee, v. City of Hoopeston, Appellant.
    1. Mandamus — when petition to compel payment of commissioners’ fees sufficient. A petition to compel a city to pay the fees of a commissioner appointed to estimate the benefits of an assessment, need not set up the ordinance providing for the making of such improvement or its provisions relative to the payment of the costs and expenses of the proceedings. It is sufficient to state generally the character, purpose and effect of the ordinance and the proceedings taken thereunder.
    2. Mandamus — when judgment compelling payment of commissioners’ fees sufficient. A judgment in mandamus compelling a city to pay the fees of a commissioner appointed to estimate the benefits of an assessment, need not disclose out of what fund the same should he paid.

      Mandamus. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Jay Briggs, for appellant; C. M. Briggs, of counsel.
    Robert R. Rodman and Arthur R. Hall, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a petition for a writ of mandamus against the city of Hoopeston, Illinois, requiring said city to immediately pay the petitioner, Nathan Bond, the sum of $400 due the petitioner by reason of his appointment by the County Court of Vermilion county, Illinois, as one of the commissioners to estimate the benefits of a certain local improvement in said city of Hoopeston. A general and special demurrer to the petition was sustained by the court, and the defendant elected to stand by its demurrer, refusing to further plead. Judgment was accordingly entered against the defendant in favor of the petitioner, awarding a writ of mandamus as prayed in the petition. The defendant seeks to have such judgment reviewed by this court.

The petition alleges that the city of Hoopeston passed an ordinance creating a local improvement, and that afterward, a petition was filed in the County Court of Vermilion county that steps be taken to ascertain the just compensation to be made for property taken or damaged, and to- ascertain the amount of benefits to the properties described in the petition; that afterward an order was entered designating and appointing the petitioner herein, and one Merritt, as commissioners to act with the president of the board of local improvements of said city, to ascertain such benefits in such proceedings; that the petitioner and the other commissioners afterwards made a report, and an assessment roll, and returned the same into the County Court, and thereafter a jury was impaneled and returned its verdict in favor of the petitioners; that afterwards the assessments were confirmed by order of the County Court; that at a hearing had upon evidence, the court fixed the compensation of each of said commissioners at the sum of $400 and entered an order accordingly that the petitioner receive such sum for his fees as such commissioner. The petition further alleges that the sum of money ordered by the County Court to he paid to the petitioner as commissioner’s fees was still due and unpaid and that there was in the hands of the treasurer of said city, not otherwise appropriated, ample funds for the payment of said judgment in full, and that said city of Hoopeston has the legal right to pay said judgment out of the funds in the hands of said treasurer, and prays that the court award a writ of mandamus commanding the city officers named in the petition forthwith to pay to the petitioner the amount of said judgment, together with interest thereon.

The causes of demurrer to the petition, briefly stated, are that no part of the ordinance providing for the making of the improvement in question is set forth in the petition; that it does not allege that said ordinance provided for the payment of the costs and expenses of such improvement out of any fund, or what the provisions of said ordinance were in reference thereto; that the order of the County Court fixing the fees of the petitioner fails to show whether the same is a general judgment or one payable out of a particular fund; that the averment that there were funds on hand in the treasury of the city not otherwise appropriated, and that the city had a legal right and authority to pay such judgment out of such funds, are hut conclusions of the pleader; that the petition fails to allege from what fund the money due to the petitioner is payable, whether from the public improvement fund or a special fund or from any fund under the control of the city.

It was unnecessary that the ordinance providing for the making of such improvement, or its provisions relative to the payment of the costs and expenses of the proceedings, should have been set out in the petition. It was sufficient to state generally the character, purpose and effect of the ordinance and the proceedings taken thereunder. The judgment of the County Court was final and conclusive of the right of the petitioner to receive and the duty of the city to pay the amount of the judgment. Neither was it essential that said judgment should disclose out of what fund the same should he paid.

Section 94 of the Local Improvement Act (Hurd’s Eev. Stat. (1909) 479) in express terms provides that the entire costs and expenses connected with the proceedings therein authorized, including the court costs, shall be paid by the city, in the present instance, out of its general fund. The proviso to said section does not affect the present case. Ricker v. City, 204 Ill. 191.

That there were funds on hand in the treasury of the city, not otherwise appropriated, is, we think, alleged with sufficient directness. The material allegations of the petition, the truth of which was admitted by the demurrer, clearly entitled the petitioner to the relief prayed, and the Circuit Court did not err in overruling the demurrer thereto nor in ordering the issuance of the writ.

The judgment is accordingly affirmed.

Affirmed.


text:
    Davis Bros., Appellees, v. Vandalia Railroad Company, Appellant.
    1. Evidence — when books not of original entry competent. Held, that the so-called day hook in which the plaintiffs entered thé weights of grain at the time of loading the same, although not strictly speaking original entries, was nevertheless competent.
    2. Evidence — when memoranda competent. Held, that memoranda purporting to show weights were competent where the witnesses who made such memoranda had no independent recollection of the transactions. ”
    3. Evidence — how accuracy or inaccuracy of scales cannot be shown. The accuracy or inaccuracy of scales cannot he shown by evidence of their condition long after their use in the transaction in question.
    4. Evidence — what not proper cross-examination. Cross-examination is not proper which seeks to interrogate with respect to matters not inquired about upon direct.
    5. Common cabbieks — burden to establish assent to conditions restricting liability. The burden is upon the carrier to show that the shipper assented to such conditions.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Outer, Ewing, McCullough & Weirman and E. J, Miller, for appellant.
    Marion Watson and Jack, Deck & Whitfield, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon appeal from a justice' of the. peace this case was tried in the Circuit Court, where the plaintiffs recovered judgment upon the verdict of a jury for $112.19. The defendant appeals.

The evidence shows that the plaintiffs operated a grain elevator at Fairbanks, a station upon the defendant’s railroad; that at such station the defendant maintained neither a depot, station agent nor scales; that during June, 1908, the plaintiffs shipped five cars of com from Fairbanks to Cincinnati over the defendant’s railroad; that there being no scales or agent at Fairbanks, the plaintiffs themselves weighed the com as it was loaded into the cars, upon the hopper scales used at their elevator, and prepared the bills of lading, which were afterward signed by the agent of the defendant at Arthur. The plaintiffs claim that when said cars arrived at their destination they contained about 172 bushels less corn than had been loaded into them at Fairbanks. They seek in the present action to recover the market value at Cincinnati of the com which they claim the defendant thus failed to deliver, predicating such right upon paragraph 118 of chapter 114 Hurd’s Revised Statutes, which in part provides that railroad corporations shall receive and transport grain in bulk within a reasonable time; that when such grain is received by it for transportation it shall carefully and correctly weigh the same and issue to the shipper thereof a receipt or bill of lading for such grain, in which shall be stated the true and correct weight; that it shall weigh out and deliver to the consignee at the place of delivery, the full amount of such grain, without any deduction for leakage, shrinkage or other loss in the quantity of the same, and in default of delivery of the full amount of such grain, shall pay to the person entitled thereto, the full market value of any such grain not delivered, at the time and place when and where the same should have been delivered; that upon the neglect or refusal of such railroad corporation to weigh and receipt for any grain as aforesaid, the sworn statement of the shipper or his agent having personal knowledge of the amount of grain so shipped, shall be taken as true as to the amount so shipped; and in case of the neglect or refusal upon delivery by such railroad corporation of any grain to weigh the same as aforesaid, the sworn statement of the person to whom the same was delivered, or his agent having personal knowledge of the weight thereof, shall be taken as trne as to the amount delivered; that if by such statements it shall appear that such corporation has failed to deliver the amount so shown to he shipped, it shall be liable for the shortage, and shall pay to the person entitled thereto the full market value of such shortage at the time and place when and where the same should have been delivered.

The evidence offered by the plaintiffs tended to show that as the grain was loaded into the cars, it was weighed upon the hopper scales; that each car-load was made up of three separate drafts, and memoranda made upon slips of paper; that such weights were transferred from the slips of paper to the day-hook and the slips then destroyed. Such day-book was admitted in evidence upon the trial, over the objection of the defendant. The plaintiffs admit that at the time the weights were inserted in several of the hills of lading they did not insert the exact weights as shown by the scales, hut that in specifying the same they were governed by the marked capacity of the car.

They insist, however, that the memoranda entered upon the day-hook showed the correct weights. We think that the evidence adduced by the plaintiffs was sufficient to sustain the verdict, and are further of opinion that the court did not err in its rulings as to the admissibility of evidence.

The so-called day-book, in which the plaintiffs entered the weights of the grain at the time of loading the same, although not strictly speaking original entries, was nevertheless competent. Redlich v. Bauerlee, 98 Ill. 134. Neither was it error to admit the memoranda made by the witnesses Eoach and Eichter, purporting to show the weights of the cars upon their arrival at Cincinnati, notwithstanding the witnesses had no independent recollection of the transaction. Chisholm, v. Beaman, 160 Ill. 101; Ryan v. Miller, 153 Ill. 138; Watte v. Costello, 40 Ill. App. 307; Hayden v. Hozie, 27 Ill. App. 533. While there was some evidence tending to show that the accuracy of the hopper scales used by the plaintiffs had never been properly tested prior to the time they were so used, the jury was not unwarranted in finding to the contrary. The defendant complains that it was not permitted to prove that inspection of such scales several months thereafter disclosed that the same were not in plumb and therefore unreliable, or to introduce in evidence records showing what the corn weighed at Terre Haute while en route. The condition of the scales long after their use in the present instance and the weight of the grain at Terre Haute was clearly immaterial, and the evidence in question was not improperly excluded. Thé court did not err in refusing to permit the defendant to interrogate the plaintiff, John Davis, upon his cross-examination, as to the condition of the cars at the time he loaded the grain, for the reason that the witness had not been interrogated relative thereto upon his direct examination.

We find no error in the instructions given by the court at the request of the plaintiffs. They in effect state the provisions of the statute upon which the plaintiffs base their right to recover, and correctly state the effect thereof when applied to their contention as to the facts. It is strenuously insisted that said instructions are erroneous in that they authorize a recovery without regard to the restrictive conditions of the bills of lading, which require that claims of this character shall be presented to the agent of the defendant at the point of delivery, within a specified time; provide that the carrier shall not be liable for differences in weight or for shrinkage of grain carried in bulk, and further that the carrier shall not be liable for loss of damage to property if such loss occurs beyond its own line. Where a contract limiting the liability of a carrier is contained in a bill of lading* constituting both a receipt and a contract, the burden is-upon the carrier to show that the shipper assented to the terms and conditions of the contract, and the question as to whether or not he did so consent is one of fact for the jury. Wabash R. R. Co. v. Thomas, 222 Ill. 337; Kirby v. R. R. Co., 242 Ill. 418. There was no proof tending to show that the plaintiffs in the present case assented to the restrictions and conditions of the bill of lading, other than such inference as might be drawn from the fact that they filled the blanks in the forms furnished by the defendant after having had such forms in their possession and an opportunity to examine the contents of the same. This alone was insufficient to warrant the jury in finding that the plaintiffs understood and assented to the terms, and conditions of the bills of lading. The defendant offered no instructions as to the effect of the restrictive clauses, and the attention of neither the court nor jury was directly called to them. We do not think it was prejudiced by the failure to refer thereto in the instructions given in behalf of the plaintiffs.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Mamie McCurrey, Appellee, v. Metropolitan Life Insurance Company, Appellant.

      Insurance — what validates void policy. Where a policy of insurance is absolutely void from the beginning, the company cannot claim the right to forfeit the premiums even though the policy specifically so provides; if it retains the premiums it validates such a policy.

      Assumpsit. Appeal from the Circuit Court of Vermilion county; tlie Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    William E. Bach and Ealph B. Holmes, for appellant.
    O. M. Jones and Walter J. Bookwalter, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit upon a life insurance policy issued by the defendant to the husband of the plaintiff, in which she is named as beneficiary. To the declaration, which consists of one count, in which the policy is set out in haec verba, the defendant pleaded the general issue. Upon the trial the plaintiff introduced the policy, proofs of death, payment of the premiums, and a stipulation to the effect that after the death of the deceased, the plaintiff went to the office of the defendant and demanded the’ amount due upon the policy, whereupon the defendant denied all liability thereunder and refused to pay her anything. The defendant introduced in evidence a stipulation to the effect that the disease as the result of which the insured died was a serious one, — one affecting sound health, and which affected the sound health of the insured at the time of the delivery of the policy.

The evidence shows the policy was issued February 14,1910, and the insured died December 24,1910. The proofs of death contain a statement by a physician that he had treated the insured for the disease of which he died, during the month of September, 1909, prior to the date of the policy. The policy contained the following provisions: “This policy is void if the insured before its date has been attended by a physician for any serious disease.” “If this policy is or shall become void all premiums paid shall be forfeited to the company.” It is contended by the defendant that the policy in question was void ab initio, and further, that it was not compelled to return the premiums, thereby placing the parties in statu quo, or in the alternative retain such premiums, thereby ratifying the insurance to the full amount. We understand the law to be that where a policy of insurance is absolutely void from the beginning, the company cannot claim the right to forfeit the premiums. In such case no premiums are earned for the reason that at no time has the company assumed any risk. Dickerson v. Ins. Co., 200 Ill. 270. See also, Ins. Co. v. Schroyer, 95 N. E. 1004 (Indiana). Applying such rule to the case at bar it must he held that by retaining the premiums paid, the defendant ratified the otherwise void contract and is liable thereunder.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John H. Workman et al., Appellants, v. Esau Workman, Appellee.
    1. Contracts — when consideration must he proved. If a writing provides for the payment of money a consideration must be shown unless such writing is a negotiable instrument.
    2. Contracts — what essential to authorize filling of Hanks. There is no right in the holder of a contract negotiable or otherwise to re-write it or insert omitted provisions except where the. signer by leaving a blank, obviously delivers it with such intention.
    3. Negotiable instruments — what not. A writing providing for the payment of money which does not state to whom it is payable is not a negotiable instrument.

      Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Patton & Patton, for appellants.

      John M. Pfeifer and Graham & Graham, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit for the recovery of the amount alleged to he due upon an instrument in writing in the words and figures following, to wit:

“Dec. 17, 1900.
Esau Workman, Due Twenty-fore & Hundard and forty dollars with fore per cent interest from date.
Esau Workman. ’ ’

beneath which and in the same handwriting appears the following:

“Aprile 28,1902 Paid one thousand dollars the above Aprile 1,1907, Paid 5 hundard dollars on the above. ’ ’

It is conceded that the instrument in question is in the handwriting of John Workman, deceased, and that the signature is in the handwriting of Esau Workman, one of his sons. The writing in question was found, after his death, by the executors of said John Workman, upon one of the pages of a book kept by him during his lifetime, whereupon they detached the page upon which the writing appeared, and instituted the present suit thereupon. The defendant pleaded the general issue. It was stipulated upon the trial that the defense of want of consideration might be interposed to said writing without a special plea.

The plaintiff made proof of the defendant’s signature to said instrument, and that the paper on which the writing appeared was a sheet from an old book containing grain accounts found in the desk of the deceaséd at his home, and then offered the instrument in evidence.

The court refused, however, to admit the same. No effort was made to prove consideration. Under the proof so made the plaintiffs contend that the court should have admitted the writing in evidence and instructed the jury to return a verdict for the amount claimed by them to be due thereon. They contend that inasmuch as the deceased had frequently advanced money to the defendant, as well as to his other children, taking their notes therefor, this was the culmination of a series of advances to him. The defendant insists that the writing was not enforceable without proof of consideration; that it was not an instrument which under the law of Illinois will import consideration, being uncertain in amount, and no payee being named; and further, that even if it should be held to import consideration, the circumstances appearing in evidence show clearly that it was not held by the deceased as an obligation of the defendant.

If the writing in question was a negotiable instrument under the statutes of Illinois, no proof of consideration was necessary; otherwise it was essential that a consideration be shown. We are of opinion that inasmuch as the instrument is silent as to whom it is payable, if to any one, it is not negotiable. To constitute an instrument a promissory note, it must show an undertaking or engagement to pay, and to a person named in it, or to the bearer or holder of the instrument. Smith v. Bridges, 1 Ill. 2; Mayo v. Chenoweith, 1 Ill. 155; Walters v. Short, 10 Ill. 252; Weeger v. Mueller, 102 Ill. App. 258.

Counsel for plaintiffs insist that the instrument falls within the rule laid down in Weston v. Myers, 33 Ill. 424, where the court says: “It is’ reasonable to infer an authority from the maker who has issued a note or due bill for value wherein no payee is named, and which is endorsed by the maker, to fill up the blank with the name of the maker so as to make it a note payable to his own order.” We do not think the instrument here involved falls within such rule. It does not appear that the same was issued for value, or that it was endorsed by the maker, or that it was held by the plaintiffs for value.

While it is true, as contended, that when in a note or due bill the name of the payee has been omitted, a bona fide holder has the right to fill in the omitted name of the payee, even on trial (Weston v. Myers, supra), and that words omitted in a note which are plainly inferable from the rest of the language will he considered the same as if not omitted (McClenthan v. Davis, 243 Ill. 290), it is also essential that some apparent omission should exist. In the instrument under consideration there is no blank; no physical break or separation. There is no right in the holder of a contract, negotiable or otherwise, to rewrite it or insert omitted provisions, except where the signer by leaving a blank obviously .delivers it with such intention. Smith v. Willing, (Wis.) 68 L. R. A. 940.

The trial court properly refused to admit the instrument in evidence. The judgment is accordingly affirmed.

Affirmed.


text:
    The People of the State of Illinois, ex rel. etc., Appellants, v. Texas Special Drainage District et al., Appellees.
    1. Contracts — what void as against public policy. An official body vested by statute with discretionary powers, has no right to contract to exercise such discretion in a particular manner.
    2. Mandamus — when lies against drainage commissioners. The statute makes it the duty of drainage commissioners to provide outlets of ample capacity and proper construction for waters of the district. Such duty is mandatory, and the performance thereof may be enforced by mandamus. In the performance of such duty the commissioners have discretionary power to determine the system of drainage and outlets to be adopted and the location of drains and the details of the work, and, ordinarily, the courts will not interfere with such discretion. Where, however, it is clear that such discretion has not been properly exercised, but on the contrary, grossly abused, the courts may by mandamus, upon a proper showing, exercise that character of discretion which the commissioners should and have failed to exercise.

      3. Mandamus — what essential to petition where specific mandate to drainage commissioners required. Where a specific mandate directing drainage commissioners to exercise a certain character of discretion is sought, the allegations of the petition should he specific as to the nature of the drainage, the quantity of water, and other details.

      Mandamus. Appeal from the Circuit Court of De Witt county;' the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Livingston & Bach, for appellants.
    E. B. Mitchell, Fred Ball, B. F. Shipley, M. J. Hinchclife, John Fuller and Herrick & Herrick, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The Circuit Court sustained a general demurrer to the petition for mandamus hereinafter substantially set forth, and upon the petitioner electing to abide thereby, dismissed such petition and rendered judgment against the petitioner in bar of action and for costs. From such judgment said petitioner has perfected an appeal to this court, contending that said petition is sufficient in law to warrant the issuing of the writ as prayed.

The petition, in substance, alleges that the relatrix is the owner of certain described premises included within the Texas Special Drainage District, consisting of about 1,000 acres, which premises are subject to assessments that may hereafter be levied for the construction and maintenance of the drainage improvement of said district. It further alleges the organization and confirmation of said district; that the signers of the petition fur the organization thereof were T. C. Grady, H. P. Grady, W. G. Phares, who are the only present commissioners of the district, and defendants in this action, R. B. Mayall, a former commissioner, Oscar M. Phares, a brother of said W. G. Phares, Lida Zigler, and Emma Bay; that the plan and purpose of said commissioners is to construct a drainage ditch to carry off water from an area of 6,000 acres; that in order to make the improvement of value to the lands of the petitioner, the said drainage ditch must be an open ditch, and that it is impracticable to construct a tile drain; that a tile drain will not afford the relief to the land contemplated, and that the expenditure of moneys for the construction of a tile drain would be wasteful; that the commissioners selected one Bell, a competent civil engineer, to design and plan said work; that said Bell recommended an open ditch; that the commissioners, in accordance with said recommendation and report of said civil engineer, then and there decided to construct an open drainage ditch; but thereafter, notwithstanding their action in that regard, with knowledge that the efficient and proper method of constructing said proposed improvement would be the construction of an open ditch, and that a tile drain would be inefficient and that the expenditure of money therefor would be wasteful, said commissioners, contrary to their honest and impartial discretion in said matter, and for the purpose of avoiding litigation, pending and threatened, against their title as commissioners, and to escape the possibility of being obliged to pay certain court costs and expenses to which they were then subject, fraudulently entered into a written contract with certain landowners in said district, which said contract is- set out verbatim in the petition, and recites, in substance, that whereas there was an election contest pending in the County Court to which said commissioners were defendants; and whereas a quo warranto proceeding to test the validity and organization of the said drainage district, in the Circuit Court of said county, was also pending, as well as an action on the case for damages on account of alleged filling in of a certain ditch in said alleged drainage district; and whereas, there had been.considerable controversy in the past in regard to whether an open ditch was required or whether it was practicable to tile the land in said district; and whereas, the parties to said agreement were desirous of settling the matter of a system of drainage, and all other controversies between them so as to avoid further litigation, costs and expenses, and desired that said system be constructed at the lowest minimum cost, in consideration of the premises it was thereby agreed by and between the parties whose names were signed to said contract, as landowners, and the said drainage commissioners: First, that the system of drainage in said district should be a tile drain or drains of sufficient capacity to take care of and properly drain the lands in said district, provided, however, that if said commissioners and the engineer for said drainage district should thereafter determine that it was more practicable to construct an open ditch as an outlet for said drainage system, on, in and through a certain described portion of said district, they might so construct said portion of said drainage district, without violating said agreement; second, that the then present drainage commissioners, W. G. Phares, T. C. Grady and. Hiram Grady, should continue to act as such commissioners, and that said election contest, quo warranto proceedings and damage suit should be dismissed; third, that the classification for assessments in said drainage district should first be made by three disinterested persons not the owners of land included in said district, as then constituted, but residing and owning land in the counties of Mason or DeWitt, Illinois, not related to any of the landowners or parties in interest in said district, by consanguinity or otherwise, who were to be selected one by said drainage commissioners, one by the other parties to the agreement, and the third by the two thus selected; that the classification as made by these three men should be adopted by the said commissioners and the assessments in said district should be based thereon; fourth, that the said commissioners should employ one Hicks as an engineer to survey and superintend the construction of said drainage system, — provided, that if the said commissioners deemed it wise and profitable, they might employ some other competent civil engineer to assist the said Hicks in the surveying and superintending the construction and installing of said drainage; fifth, that thereafter Fred Ball, Herrick & Herrick, John Fuller, M. J. Hinchcliff, B. F. Shipley and E. B. Mitchell should be employed by said drainage commissioners, as attorneys for said drainage district; sixth, that thereafter should any person or persons institute any legal or chancery proceedings of any kind against said commissioners or test or question the validity of said drainage district, or that was inconsistent with the execution or carrying into effect of such agreement, the parties to said agreement should lend their support and assistance in causing said lands to be drained as nearly as practicable by the system of drainage therein provided. The petition further alleges that by virtue of said contract, the commissioners, for various benefits to be derived by them, had contracted to exercise their discretion and power in determining the method and construction of said improvement, which contract, if carried out, would be directly in conflict with the disinterested discretion and judgment of said commissioners and in violation thereof, to the permanent injury and irreparable loss to the petitioner and other landowners, in the district; that the commissioners in consequence thereof, were incapable of exercising a disinterested, honest, impartial and unprejudiced discretion, and that it was impossible for said commissioners to exercise discretion in determining whether said improvement should be by open ditch or tile drain without being influenced, constrained and impelled to follow the obligations imposed by said contract. The petition further alleges that the commissioners threatened and intended to and would carry out the provisions of said fraudulent and improper contract, and let contracts for tile drains, and refused and would refuse to exercise their true, impartial and disinterested judgment and discretion as to the method of said improvement, by means whereof petitioner was denied her legal rights. The petition is verified and prays for a writ of mandamus commanding the said district and commissioners “to abandon the said contract, and to order that the proper construction of said drainage improvement for said drainage district, is the construction of an open ditch of sufficient depth and width to drain the surplus water from all the land in said district,” and that said district “construct an open ditch of sufficient depth and width to drain said water accordingly.”

The only question presented for our determination is whether or not the petition in question is sufficient in law to require the defendants to answer the same. That the contract set out therein is illegal and void seems too clear to warrant discussion.- An official body vested by the statute with discretionary powers, has no right to contract to exercise such discretion in a particular manner. The agreement set out in the petition was not only ultra vires but in violation of the oaths of the commissioners and contrary to public policy. It was null and void and unenforceable. "While the petition does not allege that the commissioners had acted under such contract, it does aver that they threaten and intend to immediately carry out the provisions of the same. For the purposes of the demurrer such allegation must be taken as true.

The statute makes it the duty of the commissioners to provide outlets of ample capacity and proper construction for waters of the district. Such duty is mandatory, and the performance thereof may be enforced by mandamus. Langen v. Dr. Dist., 239 Ill. 430. In the performance of snch duty, however, the commissioners have discretionary power to determine the system of drainage and outlets to be adopted and the location of drains and the details of the work, and, ordinarily, the courts will not interfere with such discretionary power. Where, as in the present ease, it is clear that such discretion has not been properly exercised, but on the contrary, grossly abused, the courts may by mandamus, upon a proper showing, exercise that character of discretion which the commissioners should and have failed to exercise.

We are of opinion, however, that the allegations of the present petition are not sufficiently specific as to the nature of the drainage, the quantity of water, and other details, to enable the court to intelligently exercise the discretion devolving upon it. We are not prepared to hold, for this reason, that the petition was sufficient to warrant a mandamus compelling the commissioners to construct an open ditch instead of installing a system of tile drainage. It cannot be conclusively presumed from the mere fact that the commissioners have illegally contracted to adopt the latter system of drainage, that the former is the better and proper. The question must be determined from a consideration of all the facts essential to such determination.

The statute contemplates that in the performance of the general duty specified therein, the commissioners should exercise their impartial, disinterested, unbiased judgment. Under the averments of the petition, this they have failed to do. They have therefore failed to perform their primary general duty. We are of opinion that the allegations, of the petition were sufficient, if established by the proper degree of proof, to warrant the court in issuing a writ commanding the defendant commissioners to proceed forthwith to provide within their district outlets of ample capacity and proper construction for the waters of such district, independently of and without regard to any agreements or obligations attempted to be imposed upon them by the terms of said void contract, and prohibiting and enjoining them from further acting thereunder or in conformity thereto. It follows that the petition was not obnoxious to the general demurrer and that the court erred in sustaining the same.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.