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    Marcella Crowley, Appellee, v. Patrick McCambridge et al. (Patrick McCambridge, Appellant), Consolidated with J. H. Alsdurf, Administrator, Appellee, v. Patrick McCambridge, Appellant.
    Gen. No. 5137.
    1. Administration of estates—what personal property. Moneys due upon • contracts for the sale of real estate made by a deceased party are to be considered a part of his personal estate even though no deed has been executed.
    2. Principal and agent—when death does not revolee power. Beld, under the facts of this case, the right to make delivery of a deed of real estate was more than a naked power and was not revoked by the heath of the principal.
    3. Principal and agent—how payments must he made hy one dealing with an agent. A person dealing with an agent and knowing the extent of that agent’s authority with respect to receiving payment, in order to protect himself must make payment to such agent in such manner as conforms to the authority of such agent, but in equity, under the doctrine of subrogation, any payments made in a manner not conformable to the agent’s authority, will be applied to the credit of the person making the same in so far as it appears that such payments have reached the proper source.
    4. Wills—what testamentary disposition void. A direction to make distribution after death is void under the statute of wills if such statute is not complied with in ■ making such direction.
    5. Accounting—when case should he referred to master. If it appears during the course of a chancery proceeding that a complicated account is to be stated, the court should refer the cause to a master to state such account.
    6. Jurisdiction—when, of court of chancery, cannot he questioned. A party who has invoked the jurisdiction of chancery with respect to a particular subject-matter, cannot attack the jurisdiction of such court in exercising jurisdiction with' respect to such subject-matter.
    Bill in equity. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    A. C. Norton and J. W. Eausoh, for appellant.
    Cornelius Eeardon and C. V. Hanson, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

Patrick Lamb made a contract in writing in duplicate under seal on July 9,1902, to sell to John H. Kane the land for the partition of which the original bill in equity in this case was filed. Mary Lamb, wife of Patrick Lamb, executed the contract with her husband. At the time the contract was made Kane paid $1,000 to Lamb on the contract, and agreed by the contract to pay $19,000, the balance of the purchase m'oney, on March 1, 1903, when the deed from Lamb was to be delivered to Kane. The $19,000 balance of the purchase money was to he paid by the purchaser assuming the payment of a $5,000 mortgage and a $1,000- mortgage with interest thereon from March 1, 1903, by giving to Lamb a mortgage for $4,000 which was to be a lien subject to the other mortgages, and by paying the remaining $9,000 in cash. On October 18, 1902, Kane sold to Patrick McCambridge his equity in the contract for $1,800 and made an assignment of his copy of the contract by an endorsement on the back of it which he signed, but the assignment is not under seal. McCambridge paid $450 to Kane on October 18, and paid the further sum of $550 on December 15, 1902, making up the $1,000 that Kane had paid on the contract, and was to pay the remaining $800 due Kane, being his profit in the deal, on March 1, 1903. The sale by Kane of his equity in the contract was made with the knowledge and consent of Lamb, who recognized the assignment as valid but would not release Kane from his liability. In .October, on the same day that Kane assigned his equity in the land to McCambridge, Patrick Lamb and his wife executed a warranty deed to McCambridge of the land described in the contract, subject to the two mortgages then on the land which the grantee in the deed assumed and agreed to pay as part of the $20,000 consideration named in the deed. The evidence shows that át that time, in the presence of witnesses, Lamb delivered this deed to Kane and directed him to collect the unpaid purchase money on the contract and to then deliver the deed to McCambridge. When the deed was executed Lamb handed it to Kane, and some person suggested that it be placed in the safe of M. J. McGrevy, and Mrs. Lamb said she could take care of it as well as McGrevy. Kane put the deed in an envelope, sealed it, wrote something on the back of the envelope, and handed it to Mrs. ■ Lamb, who put it in a bureau drawer in Lamb’s house where Lamb, his wife, McGrevy and Kane then were. When Lamb handed the deed to Kane he said to him, “You take care of that, and if I am not here when this is to be delivered, if I am dead and gone, you receive the money and pay it out as'I have told you and turn the deed over to McCambridge. ’ ’

Kane testified that at that time Lamb said he wanted to settle all his matters and had arranged how the money was to be paid, and asked him (Kane) to see that his plan was carried out; that Lamb told him how the money was to be disposed of, and Kane asked him to put it in writing, and Lamb said he would later. A witness, McGrevy, was present when the deed was delivered to Kane and heard Lamb tell Kane to settle his accounts, but did not hear how the surplus was to be disposed of. Later, in February, 1903, Lamb sent for McGrevy and had him reduce the instructions to writing, which were signed by Lamb and witnessed by McGrevy. This paper was given to Mrs. Lamb, who placed it in the drawer in which was the deed; after Lamb’s death, Kane, when he got the envelope with-the deed from Mrs. Lamb, also got the written instructions. This paper appears to have been lost, but Mc-Grevy and others testify to its contents. It was in the form of a will. Kichard F. Lamb testified it was in substance “To my son Kichard F. Lamb I give and bequeath $2,400 and $500 additional for horses left upon the homestead by him when going west, total amount he is to receive $2,900. To my son M. H. Lamb $2,000. Dick, you know you had $1,000. Mike, you know you had $1,000. To my nieces Florence and Loretta Issler, I bequeath the sum of $500. To my niece Marcella Crowley I bequeath the sum of $1,000 to be paid after mother’s death. There are $4,000 to remain in the land, notes of Patrick McCambridge drawing five per cent interest, and secured by mortgage on thé land, to do with as she pleases. * * *” The oral instructions to Kane were in substance like those in writing, except that by the writing the Isslers and Mrs. Crowley are to be given something.

Patrick Lamb died on February 10, 1903. Kane on March 1, 1903, collected from McCambridge the remaining $800 that was to be paid to him for his equity, and does not appear to have done anything further in the matter, except he states that a day or two after Patrick Lamb’s funeral he delivered the deed and the written instructions to Bichard F. Lamb, a son of Patrick Lamb, who lived at Slayton, Minnesota, to carry out Patrick Lamb’s instructions. Bichard F. Lamb on March 3, 1903, delivered the deed to McCambridge after McCambridge had presented certain claims he held against Patrick Lamb, assumed the .mortgages agreed to be assumed in the contract and paid to Bichard F. Lamb the balance due on the' contract by executing a note and mortgage for $4,000 to Mary Lamb, the widow of Patrick Lamb, and paying the remainder in cash.

In the settlement with McCambridge at the time the deed was delivered to him by Bichard F. Lamb, Me- ' Cambridge was allowed credit for $2,427.60 -on six notes and interest thereon which he held against Patrick Lamb, two of these notes being executed by B. F. Lamb .and Mary E. Issler, and these being the notes secured by the $1,000 mortgage mentioned in the contract.

Patrick Lamb was also indebted to other parties on notes or accounts which were paid by Bichard F. Lamb out of the money received by him from McCambridge. These debts, with the expenses of the last illness and funeral expenses and the purchase of a tombstone, amounting in all to $2,404.25, were paid out of the purchase money by B. F. Lamb. The Circuit Court allowed of these items $2,353.29. A deduction of $50.96, of which appellant complains, was made from the total, either because of an error in adding or for some reason which may be explained by the evidence, but which is not pointed out by either side. The following are the items from which the $2,353.29 was allowed:

“ Claims and Expenses of Patrick Lamb paid by Bichard F. Lamb ont of moneys received from McCambridge.
Taxes...................................$ 88.40
Funeral expenses......................... 235.00
Note to Beal and Benne signed by Patrick
and Mary Lamb....................... 750.00
Interest on same.......................... 17.95
Note to W. S. Pierce..................... 36.00
Note of Patrick and Mary Lamb to Mrs.
Kaylor............................... 300.00
Interest on same......................... 17.00
Paid milkman............................ 6.00
Expenses in clearing title.:............... 27.00
Fee paid W. J. Weldron...................' 20.00
Money left with McGrevy for use of. mother. 300.00
Bar bill to Mahaffey...................... 6.00 •
Patrick Welsh, borrowed money:........... 100.00
Grundy Co. National Bank................ 150.00
Paid Harty for fuel...................... 59.90
Paid for tombstone..........■............. 200.00
Paid Dr. O’Malley........................ 56.00
Paid Father Green....................... 10.00
Paid McCambridge for loan made to mother
during father’s illness................. 25.00
$2,404.25”

Marcella Crowley, complainant, on December 6, 1904, filed the original bill in this cause for partition. At the March term on June 27, 1905, after Kane and ■ McCambridge had filed an answer the complainant made a motion to dismiss her bill, and on the eighteenth day of September, 1905, the defendant McCambridge, made a cross motion to dismiss the bill for want of equity. No action appears to have been taken on these motions to dismiss. A cross bill was filed September 7, 1906, by McCambridge in which all the heirs of Patrick Lamb, the tenant, John H. Káne, and J. H. Alsdurf, administrator of the estate of Patrick Lamb, deceased, were made parties defendant. After McCambridge filed his cross bill Mrs. Crowley, the complainant, on April 7, 1908, filed an amendment to her original bill and J. H. Alsdnrf, administrator, joined as a complainant in the amended bill. McCambridge by filing his cross bill, and Marcella Crowley by filing her amended bill, waived their motions' to dismiss the original bill. On April 6, 1908, the written entry of appearance of Michael H. Lamb and Richard F. Lamb was filed entitled in both the original bill and cross bill to the September term, 1906, submitting themselves to the jurisdiction of the court as if served by summons more than ten days before that term of court. Florence Issler and Loretta Issler, the minor children of Mary E. Issler, a deceased daughter of Patrick Lamb, were served by publication, and a guardian ad litem was appointed for them.

The amended bill alleged that. McCambridge and Richard F. and Michael H. Lamb were conspiring to defraud complainant and the Isslers, and that there was due from McCambridge $13,000 and prayed in the alternative that if title be found to be in McCambridge, then that McCambridge and Richard F. and Michael H. Lamb be decreed to pay to the administrator any indebtedness owing by them to the estate, and sufficient of the balance due upon said purchase to pay (1) the debts allowed against the estate of Patrick Lamb and the costs of administration, (2) one-half the net returns from the sale after the payment of debts and costs of administration which belong to complainant Crowley and the Isslers.

The pleadings in the original bill and the amended bill neither charge nor plead that either Richard or Michael Lamb was indebted to their father. By the consolidation of the suit of the administrator against McCambridge and the administrator joining in the amended bill as a complainant, the entire McCambridge matter, including the collection of the money on the contract and the equitable distribution of the money, was placed under the jurisdiction of the chaneery court, but the collection of moneys loaned the heirs by Lamb was not by the pleadings included in such chancery proceedings.

In the assumpsit suit of the administrator against McCambridge, a jury was waived and by order of court that suit was consolidated with the chancery suit. An order of default was entered against Bichard F. Lamb and Michael H. Lamb, as to both the amended bill and the cross bill; and on April 7, 1908, by agreement of the parties it was ordered by the court “that the cross bill and the answer to the original bill stand also as the cross bill and the answer to the amendment to the original bill in this cause. ’ ’ Marcella Crowley filed a replication to the answer of the defendants, but no answer was ever filed to the cross bill of McCambridge, nor was any order made concerning any answer to the cross bill or replication thereto. The consent order as to the cross bill standing as a cross bill seems to be a misuse of terms.

To avoid unnecessary repetition reference is made to the statement of the Supreme Court in Crowley v. McCambridge, 237 Ill. 222, made in transferring this case to this court, which very fully sets forth the contents of the pleadings and the decree of the Circuit Court.

Moneys due upon contracts for the sale of real estate made by a deceased party are to be considered a part of his personal estate, even though no deed has been executed. Skinner v. Newberry, 51 Ill. 203; Fuller v. Bradley, 160 Ill. 51; note to Bowen v. Lansing, 57 L. R. A. 649.

It is insisted that the delivery of the deed to Kane by Patrick Lamb with the instructions to Kane regarding the delivery of the deed to McCambridge, and the collection and distribution of the balance of the purchase money, was an irrevocable appointment of Kane as the agent of Lamb. It is contended that Kane had such an interest in the subject-matter that the death of Lamb did not revoke the agency.

“It is a well established rule that the death of the principal puts an end to an agency when the authority is. not coupled with an interest, and no act of an agent subsequent to the death of the principal is binding upon the estate of the principal, for no one can do an act in the name of one who is dead.” 1 Am. & Eng. Ency. of Law, 1222 (2d ed.); Turnan v. Temke, Exec., 84 Ill. 286. Meacham in his work on Agency lays down the following rules (sec. 205): “What interest in the agent will be sufficient to render the authority irrevocable is not easy of exact and comprehensive definition. Certain it is, however, that it is not any interest which will suffice. But it must be an interest or estate in the thing itself or in the property which is the subject of the power; the power and the estate must be united and co-existent, and generally, of such a nature that the power would survive the principal in such a way as to be capable of execution in the agent’s name after the death of the principal.” ' Section 241, “Where, however, the authority of the agent is coupled with an interest in the subject-matter of the agency, it is not terminated by the death of the principal and a subsequent execution of it by the agent will be good.” “A power coupled with an interest, must create an interest in the thing itself upon which the power is to operate; the power and the estate must be united, or be co-existent, and this class of powers survive the principal and may be executed in the name of the attorney. Hunt v. Rousmanier, 8 Wheaton 174. Another class of powers is where they are created upon a valuable consideration and to operate as a transfer, mortgage or security, to another, although the power can only be executed in the name of the principal. * * * These are irrevocable by the act of the principal, for they are founded upon a sufficient consideration, and created to subserve purposes in which another! has an interest.” Bonney v. Smith, 17 Ill. 531; Gilbert v. Holmes, 64 Ill. 548.

McCambridge, when the contract was assigned to him on October 30 still owed $1,350 to Kane, $550 of this sum being money that Kane had already paid to Lamb and $800 his profit in the deal. Kane, however, still had another interest in the matter. When the deed was made he desired to have Lamb release him from the payments he had agreed to make on the contract. Lamb refused to do this, saying ££I will have my contract.” The sum due Kane from McCambridge over and above the amount due Lamb did not give Kane any interest as agent in what was due Lamb, but the payment of the $19,000 and the delivery of the deed was a subject-matter in which Kane was vitally interested because he would thereby be relieved from liability on his contract. Lamb by executing the -deed and placing it in Kane’s possession to deliver- on the payment of the $19,000 placed Kane in a position where he could carry out the contract, between Lamb and himself, that had been assigned to McCambridge, and thereby relieve himself from the liability he had assumed. We are of the opinion that Kane had such an interest in the subject-matter that the right to deliver the deed was more than a naked power and was not revoked by the death of Lamb. However, it is not material whether the agency to deliver the deed was revoked by the death of Lamb or not, for the reason that in equity McCambridge was entitled to the deed on the payment of the money, and the parties have by their pleadings confirmed the delivery of the deed. The remaining question is, did McCambridge pay the. purchase price in such a manner as that equity will relieve him from repayment.

Kane, having the right to deliver the deed, had the right to collect the money that was due on the contract as the agent of Lamb; he however had no right to collect it in any other way than he was authorized to. Whatever legitimate claims McCambridge had against Lamb he was by law'required to accept, but he had no right to accept a note payable to any other person than Lamb himself or to his legal representative. McCambridge paid in cash or its equivalent all of the $19,000 that remained due on the contract, except that he paid $4,000 by giving a note and mortgage to Mary Lamb due in ten years with interest at five per cent per annum.

McCambridge in making payments to an agent, was required to take notice of the power and authority of the agent, and to know and see that he made payments to the proper person. In place of paying to Kane, he made payments to Richard F. Lamb, by drafts payable to the order of Richard F. Lamb, and if Lamb misappropriated the money, which was improperly placed under his control by McCambridge, McCambridge remains liable on the contract as though payment had not been made. A court of chancery will, however, give appellant credit under the doctrine of subrogation for all money paid by him that has ultimately reached the parties it would have been paid to in due course of administration. The statement made by Lamb when the deed was delivered to Kane, “If I am not here when this is to be delivered, if I am dead and gone you receive the money and pay it out as I have told you,” shows that if Lamb should be living when the money was paid Kane would have nothing to do with the distribution, and demonstrates that the direction to Kane to collect and distribute the fund was in the nature of an attempted testamentary disposition by Patrick Lamb of his estate. The disposition not complying with the law concerning wills, was revoked by the death of Lamb. Barnum v. Reed, 136 Ill. 388; Garber v. Myers, 32 Ill. App. 175; Benner v. Bailey, 234 Ill. 82; Oswald v. Caldwell, 225 Ill. 224.

The summary of the items allowed by the decree as payments properly made is:

Ray mortgage assumed....................$5,000.00
Notes of Patrick Lamb, including the Richard F. Lamb mortgage notes..........,.. 2,427.60
Debts and expenses of Patrick Lamb paid ont
of purchase money.................;____ 2,353.29
Total allowed as credits to MeCambridge ..........................$9,831.85

The court refused to allow credit for the $4,000 mortgage taken to Mary Lamb, and refused to allow credit for the moneys paid to Eichard F. Lamb which had not been paid out in the payment of claims against the estate of Patrick Lamb, but did allow credit for money paid to Michael H. Lamb that would have been finally paid to him by the administrator^

The proof shows that on the day Mary Lamb died this note was transferred by her to Eichard F. and Michael H. Lamb, who afterwards assigned the note and mortgage to parties in Minnesota who have since that time collected the greater part of the note from MeCambridge.

There was no authority vested in Kane or Eichard F. Lamb to take a note to Mary Lamb in payment of part of the money due on the contract, and MeCambridge had no right to pay in that way, and credit for this was properly refused, unless in equity Mary Lamb had some claim on her husband’s estate, in which event MeCambridge might be subrogated to her right. The widow Mary Lamb was legally entitled to one-third of the personal estate. Mrs. Lamb received the $4,000 note given by MeCambridge, and while in law Me-Cambridge had no right to give it' to her, yet, in equity he will- be subrogated to her rights and given credit for all payments which were received by the proper distributees, so far as they were entitled to payment from the money in MeCambridge’s hands or from debts due from the heirs that were collectable by charging against the heirs the debts due from them to the extent of their distributive share of the balance due on the contract.

It is argued that Mary Lamb was entitled to a widow’s award from the estate of her husband, and that McCambridge should be subrogated to her rights therein. There is no proof that any award has ever been set off to her and a court of chancery has no means of making such an allowance. Should an award ever be set off to her, she being deceased, it would go to the same parties that the estate of Patrick Lamb descends to. The appellant having made payments wrongfully must of necessity pay again all sums that have not been paid to parties to whose rights he may be subrogated, and he must be relegated to his remedy, if any, against the parties to whom he has wrongfully paid.

The evidence shows that in April, 1890, Patrick Lamb and his wife had by a deed conveyed the land described in the bill to Bichard F. Lamb and Mary E. Lamb (Issler). In July, 1897, Bichard F. Lamb and Mary E. Issler, executed two- notes for $500 each to Patrick McCambridge and secured the said notes by a mortgage on forty acres of said land; these notes and the mortgage constitute the $1,000 mortgage described in the Kane contract. In April, 1899, Bichard F. Lamb and Mary E. Issler, executed a note for $5,000 to Julia 1ST. Bay and secured the same by a mortgage on the remaining 160 acres of the said land. This is the $5,000 note and mortgage described in the Kane contract. In June, 1902, Eichard F. Lamb and Mary E. Issler in consideration of $1 reconveyed the said land by a warranty deed to Patrick Lamb. There is also proof that within a year prior to his death Patrick Lamb had given or loaned $1,000 to Eichard F. Lamb and a similar amount to Michael H. Lamb. There is no proof in the record of any other loans by Patrick Lamb to Eichard F. or Michael H. Lamb. On this proof the court found that Eichard F. Lamb was indebted to Pair4ok Lamb $6,039.56 and Michael H. Lamb was indebted to Patrick Lamb in the sum of $1,000, and neither Eichard F. Lamb nor Michael H. Lamb raise any question over such finding. There is nothing in the record showing how the court arrived at the finding that Eichard F. Lamb owed his father $6,039.56 except as it may be inferred that it is composed of the notes and mortgages against the land.

The deed from Eichard F. Lamb and Mary E. Issler to Patrick Lamb appears to be for a merely nominal consideration. The question whether the effect of such a deed is that if the consideration therein expressed is the true consideration, the grantors were under an obligation to clear the property from the encumbrance, is not presented by appellant. Neither the moneys advanced or loaned, if any, to Eichard or Michael or any other heir are mentioned in the pleadings, except that there is a prayer in the amended bill that Eichard and Michael pay to the administrator any indebtedness owing by them. Neither the amended bill, cross bill or answer contains any allegations on which any evidence could be admitted as to any debts or advancements made by Patrick Lamb to any of his children, and therefore the decree cannot be sustained in those respects where it affects the appellant.

It is contended by appellant that Patrick Lamb remained in possession of the land while the title was in Eichard F. Lamb and Mary E. Issler and recognized these mortgage debts as his own from the time they were given, and that if they are a debt of Eichard F. Lamb they are equally the debt of Mary E. Issler, and that if Eichard F. Lamb is to be charged with this indebtedness then the Isslers should be charged with the portion that would have been chargeable against Mary E. Issler, to the extent of any portion they otherwise would have received.

It is insisted that the court erred in not finding that the moneys paid to Eichard F. Lamb and Michael H. Lamb by Patrick Lamb, “were gifts or advancements from said Patrick Lamb to his children and not loans or charges against them.” If they were gifts then they should not be given any consideration in this cause, but if they were advancements or debts then they should be considered if there were proper allegations in the hill to present such matters for adjudication. The rule in this state is that grandchildren take per stirpes, or in right of their parents, and they take subject to advancements to the parents, and this principle applies to debts as well as to advancements. Woerner on Administration, sections 554 and 71; Simpson v. Simpson, 114 Ill. 603; Kershaw v. Kershaw, 102 Ill. 307; Statutes of Ill., chap. 40, section 8. There is but little evidence- in the record concerning the nature of the transactions between Patrick Lamb and his children, Since this case must be reversed and the pleadings may be amended and other evidence may be produced, we express no opinion as to whether the sums of $1,000 paid to Bichard and Michael Lamb by Patrick Lamb shortly before his death were gifts, advancements or loans.

The indebtedness for which the notes and mortgages were given appears to he the joint indebtedness of Bichard F. Lamb and- Mary E. Issler. If these notes are to be taken into account in the division of the proceeds of the sale of this land against Bichard F. Lamb when the Isslers also should account for the portion received by their ancestors before they receive anything further, and the court should hold the same rule applicable to Bichard F. Lamb and the Isslers to the extent of the portions of the estate that should be received by them. But it is contended that Bichard F. Lamb cannot he charged with the mortgage indebtedness on the land because Patrick Lamb had made the debts his own and the deed, although a warranty deed, was for the consideration of .$1. The evidence as to Patrick Lamb’s statements when he executed the deed to McCambridge and when he made the written memoranda as to how he desired his property distributed shows that he did not consider anything was due him because of the mortgages on the land. If the consideration named in the deed made by Bichard F. Lamb and Mary E. Issler was the true consideration then although the mortgages on. the land were a breach of the warranty all that the grantee could recover from the grantors is the consideration paid with interest. 8 Am. & Eng. Ency. of Law 172 (2d ed.); Wood v. Kingston Coal Co., 48 Ill. 356; Weber v. Anderson, 73 Ill. 439; Martin v. Martin, 164 Ill. 640.; Lloyd v. Sandusky, 203 Ill. 621. As the evidence now stands if the pleadings had alleged an indebtedness from Bichard Lamb to Patrick Lamb, still he could not be charged with the mortgage indebtedness, and the court erred in charging him with any part of such indebtedness to the prejudice of appellant.

The proof also shows that when Mary Lamb, the widow, died, she and the Issler children were living at Sioux Falls, South Dakota, with Michael H. Lamb. It also shows that Michael H. Lamb was appointed guardian of the Issler children by the Probate Court of Minnehaha county, South Dakota, where they were then living; that Michael H. Lamb qualified and gave bond as such guardian, and as guardian for the Issler children received from Bichard F. Lamb $1,000 of the purchase money received from McCambridge. The Circuit Court refused to allow this as a credit to Me-Cambridge. We see no reason why this should not be allowed to him.

The interest on the $5,000 mortgage to Julia Bay that had accrued to March 1, 1903, being $225, was paid on April 6, 1903, the day it became due, by J. W. Bausch out of the moneys Lamb received from McCambridge, and Bausch appears to have been acting for McCambridge and Bichard F. Lamb. This mortgage was assumed by McCambridge as a part of the purchase price, and McCambridge should have been allowed credit for the interest so paid.

J. H. Alsdurf was appointed administrator qf the estate of Patrick Lamb in June, 1905. The only claim presented against the estate of Patrick Lamb so far as the record shows is one for $51.28. This claim as presented in the Probate Court shows that $8.25 was for the services of an attorney in the matter of a title to land more than a year before the death of Lamb, and $42 for malting an abstract subsequent to the death of Lamb. The administrator however consented to the allowance of the claim. The evidence of the administrator is that $1,200 is required to pay his commission, for his surety bond, and the claims allowed his attorney, who is the same attorney who represents Mrs. Crowley.

The trial court, when it appeared there were so many items for which McCambridge claimed and was entitled to credit in equity and that a complicated accounting must be had, should have referred this cause to the master to state the account. Mosier v. Norton, 83 Ill. 519; Ennesser v. Hudek, 169 Ill. 494; Garlick v. Mutual Loan Assn., 129 Ill. App. 402. The stating of the account entails on the trial court a large amount of unnecessary work, and this court is unable to tell how the court arrived at the sum of $2,353.29, the amount of debts of Patrick Lamb paid by Richard F. Lamb.

The decree ordered Richard F. Lamb to pay to the administrator for the use of Mrs. Crowley and the Isslers one-half of the indebtedness over his inheritance owing to his father at the time of his death, with interest, making a total of $1,246.61. The decree further found and ordered that the administrator should recover from McCambridge for the use of Mrs. Crowley and the Isslers the amount inherited by them from the estate of Patrick Lamb. The court found the estate consisted of $11,572.40 balance owing from McCambridge to Patrick Lamb on March 1,1902, and the $6,039.50 owing by Richard F. Lamb to Patrick Lamb and the $1,000 owing by Michael H. Lamb to Patrick Lamb, one-half of the net value of which the court found to be $8,129.30 less $987.42, one-half of the amount still owing the estate by Richard F. Lamb after crediting him with his distributive share on his indebtedness, making a balance of $7,141.88, with legal interest from March 1, 1903, a total of $9,016.62 to he recovered by the administrator from McCambridge for the use of Mrs. Crowley and the Isslers, and that the administrator should recover from McCambridge the further sum of $600 being the part of the debts and costs of administration that the shares of Richard and Michael Lamb should bear. The decree ordered that McCambridge should recover of Richard and Michael Lamb $9,016.62, and said $600, and such further sum as he should have to pay as costs of this proceeding, and if the administrator should not require the sum of $600 with which to pay half the debts and expenses of administration, then that the estate refund to McCambridge such part of said sum of $600 as should not be so expended.

The court applied the entire share of Richard F. Lamb on his indebtedness to the estate and makes McCambridge pay the same for the benefit of the other heirs, and then orders McCambridge to pay $300 of it—one-half of the $600—to the administrator for the payment of debts and expenses of administration. If all of Richard F. Lamb’s share was properly ordered to be applied on his indebtedness to the estate, then McCambridge should not be ordered to pay it again to be applied on other debts, and it is also manifest that he should not be ordered to pay money to the administrator to pay commissions on moneys that never came to the hands of the administrator. The administrator is entitled to commissions only on money and property that comes into his possession and the commissions on the money that comes into his hands are paid out of such money.

By the 15th, 19th and 22d assignments of error, it is insisted that the court invaded the province of the Probate Court in making an order distributing the moneys due from McCambridge amongst the heirs, and that the court had no jurisdiction in chancery. Inasmuch as the appellant filed a cross bill praying for relief from the hardship he had brought on himself, by not paying the purchase money to the proper party, he cannot be heard to insist that the Circuit Court did not have jurisdiction. The appellant is not entitled to have the administrator enjoined from prosecuting the suit at law, unless the court at the same time decrees that he do equity by paying to the administrator all moneys that have been diverted from the proper distributees by his unauthorized acts. With the distribution of the purchase money due from appellant he is not concerned further than where he is entitled to be subrogated to the rights of the distributees.

The court erred in not giving McCambridge credit for the interest on the Bay mortgage up 'to March 1, 1903; in not giving Bichard F. Lamb credit for the payment of $1,000 to the guardian of the Isslers; in not giving McCambridge credit therefor and in charging the Isslers therewith; in charging up any part of the mortgage indebtedness against Bichard F. Lamb because the evidence shows the deceased did not hold it as a debt against his son; in charging up against Bichard F. Lamb and Michael H. Lamb the sums the court found they owed the estate, and thereby affecting McCambridge’s rights without there being any allegations in the pleadings on which to sustain such findings; and in not finding that Mrs. Lamb took by the statute of descent one-third of the personal estate of her deceased husband; and in not finding that McCambridge is entitled to credit for so much of the $4,000 note as she was entitled to receive from the moneys collected from McCambridge, that remains for distribution after the payment of debts; and in ordering that McCambridge pay to the administrator the portion of the debts and expenses that Bichard F. Lamb should pay when already all the share of Bichard F. Lamb had been applied on the payment of what the' court found he owed the estate. However, since it appears that Bichard F. Lamb cannot be charged with the mortgage indebtedness and he will be entitled to a portion of the proceeds of the sale to McCambridge he will be charged with his portion of the debts allowed against the estate and costs of administration.

The decree is reversed and the cause is remanded with leave to the parties to amend their pleadings if they shall be so advised. Upon another hearing and on an interlocutory decree fixing the basis for an accounting not inconsistent with this opinion the cause should be referred to the master with- directions to take proofs and state an account between the parties and to report the proofs and the accounts so stated to the court.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    George O. Garnsey, Defendant in Error, v. Samuel Schwartz et al., Plaintiffs in Error.
    Gen. No. 5144.

      Judgment—when erroneously rendered because declaration not filed in apt time. It is error to render judgment as upon a default if it appears that the declaration was not filed hy the plaintiff within the time required by section 32 of the Practice Act; it not appearing that the defendant waived the requirement that such declaration should be filed within the time required by such act.
    Assumpsit. Error to the Circuit Court of Lake county; the Hon. Robert W. Weight, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Cooke, Pope & Pope, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a writ of error sued out to reverse a judgment in favor of George O. Garnsey against Samuel Schwartz and Mary Schwartz rendered at the December term, 1908, of the Lake county Circuit Court. George O. Garnsey on the 5th of December, 1906, began a suit in assumpsit in the Circuit Court of Lake County against Samuel Schwartz and Mary Schwartz. The summons was made returnable to the March term of 1907, and was duly served on both defendants more than ten days before the first day of the term at which it was returnable.

At the March term plaintiff not having filed any declaration, the case was continued. The succeeding term of court was the October term, but no orders appear to have been made in the cause at that term. At the December term, which began on the second day of . December, the cause-was continued for want of a declaration. Afterwards, on the fourth of December, the plaintiff filed his declaration containing the common counts with an affidavit of merits. No order was entered in the case at the March term, 1908. On June 25, 1908, at a special May term a judgment for $460 was rendered against both defendants by default for want of an appearance or plea.

Plaintiffs in error assign for error that the summons having been served in time for the March term, 1907, and no declaration filed until after the second term thereafter, it was error to take a judgment by default, and that the defendants were entitled to a judgment as in case of non-suit. 'Section 32 of the Practice Act of 1907 provides: “If the plaintiff shall not file his declaration, together with a copy of the instrument of writing or account on which the action is brought, in case the same be brought on a written instrument or account, ten days before the court at which the summons or capias is made returnable, the court, on motion of the defendant, shall continue the cause at the costs of the plaintiff, unless it shall appear that the suit was commenced within ten days of the sitting of the court, in which case the cause shall be cpntinued without costs unless the parties shall agree to have a trial; and if the declaration and copy of the instrument of writing or account on which the action is brought, shall not be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a non-suit * * V’

Section 32 of the present Practice Act is a consolidation of sections five and eight of the former Practice Act of 1845. The defendants were entitled to a non-suit, unless they had in some way waived the right secured to them by the statute. “Undoubtedly the right was one which may be waived, but we think a party should at least have an opportunity to be heard before he is considered as having waived the right * # *.” “He was not, under the circumstances, in default, and he should have been placed in that situation before a judgment was rendered against him by reason of it. Ordinarily, a party who, without any rule, fails to plead according to the practice of the court, is in default; but a party who is not required to plead, cannot justly be said to be in default for not so doing.” Pratt v. Grimes, 35 Ill. 164; Moody v. Thomas, 79 Ill. 274; Waidner v. Pauly, 141 Ill. 442. Plaintiffs in error not having waived their right to a judgment as in ease of a non-suit, it was error to render a judgment against them by default. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Caroline Moore et al., Appellants, v. Catherine Bradenburg, Appellee.
    Gen. No. 5159.
    1. Administration of estates—object of. The object of administration is to pay the debts of the deceased and distribute the remaining personal estate among the heirs according to the statute of descent.
    2. Administration of estates—jurisdiction of chancery. While fraud is one of the original heads of original equity jurisdiction, the administration of estates is not within the jurisdiction of courts of chancery except in extraordinary cases and then only in aid of the Probate Court where administration has been taken out and the powers of the Probate ‘Court are inadequate to give full and complete relief.
    3. Administration of estates—when chancery will tahe jurisdiction. A court of chancery, when the question of jurisdiction is raised, will only take jurisdiction when the Probate Court has first attempted to administer the estate in the regular course of procedure and for some extraordinary reason the powers of the Probate Court are inadequate to administer full and complete justice. Where such a condition arises, then a court of chancery will assume jurisdiction, supersede the Probate Court and take charge of the entire administration; where there has been no attempt to administer an estate in the Probate Court, chancery will not take jurisdiction.
    4. - Descent—how statute upon, construed. The statute upon descent is to be construed in connection with the Administration Act.
    Bill in chancery. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldrbdge, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. This is a bill in chancery filed by Caroline Moore, Frank. Brandenburg, George Brandenburg and Mary Jones, against Catherine Brandenburg, Christian Brandenburg, Ruby Brandenburg and Raymond Brandenburg. The bill was amended and as amended alleges that Peter Brandenburg departed this life intestate at Serena, in La Salle county, on August 16, 1907, leaving surviving him Catherine Brandenburg, his widow, and Christian Brandenburg, a son, who are made defendants and the complainants, Caroline Moore, Frank Brandenburg, George Brandenburg and Mary Moore, his children and only heirs at law; that no administration or settlement of the estate of Peter Brandenburg has been had and no administration taken out on his estate; that the deceased left no debts and his funeral expenses have been paid in full by the parties to this suit and there is no property or effects belonging to his estate other than is mentioned in the bill; that Peter Brandenburg at the time of his death and for a long time prior thereto was not of sound mind and memory but was old and infirm in body and mind, childish, in his dotage and ill; that he was totally incapable of transacting any business whatever or appreciating or understanding any business dealing or transaction or the nature or effect thereof or of making any disposition of his property or effects or of protecting himself or his interests; that he was under the influence of, and wholly at the mercy of those about him and that the defendants well knew his physical and mental condition at and during the time of all the actions, dealings and transactions between the defendants and Peter Brandenburg complained of; that while in said mental and physical condition Peter Brandenburg made certain pretended gifts, transfers and as- • signments to the defendants of his property and effects, of great value, that is to say, to Catherine Brandenburg, money, property, goods and effects to the valúe of $20,000; to Christian Brandenburg, goods, property, money and effects to the value of $10,000 and to Buby Brandenburg and Baymond Brandenburg, to each money, goods and effects of the value of $2,000; that all said pretended gifts, transfers and assignments were made wholly without consideration at the request and solicitation of said defendants, particularly the defendants, Catherine Brandenburg and Christian Brandenburg, with knowledge on the part of the defendants of the mental and physical condition of deceased. The bill alleges that defendants, Catherine Brandenburg and Christian Brandenburg, for a long period of time prior to the death of Peter Brandenburg took charge and assumed exclusive control of the property and business interests of Peter Brandenburg and retained charge of such interests to the time of his death; that the defendants, Catherine Brandenburg and Christian Brandenburg, taking advantage of the mental and physical condition of Peter Brandenburg and of the trust and confidence arising from and growing out of the possession by them and the handling and control of his property, persuaded and procured Peter Brandenburg to execute to defendants said, gifts and transfers, and fraudulently represented to him the nature and effect of said gifts and transfers, and that Peter Brandenburg relying upon said representations and upon the confidence and trust reposed in said defendants growing out of their relations with him, and their possession and management of his property, was induced to make such pretended gifts without a.t the time knowing or understanding the nature or effect thereof or the kind or amount of property so transferred.
    The bill further alleges that Catherine Brandenburg and Christian Brandenburg used and exercised undue acts and fraudulent practices and resorted to falsehood and misrepresentation to induce Peter Brandenburg to make said gifts and assignments and that he was under improper restraint and undue influence; that said defendants falsely represented to and deceived Peter Brandenburg as to the feelings of complainants for him and falsely represented that complainants were unfriendly to him and prevented complainants from seeing him except in the presence of defendants. The bill alleges that the defendants, . Catherine Brandenburg and Christian Brandenburg, received, collected and drew from the bank large sums of money, the property of Peter Brandenburg, and have retained the same and refuse to account for or surrender the same. The bill also makes Ruby Brandenburg and Raymond Brandenburg, who it is alleged are minors, defendants with Catherine Brandenburg and Christian Brandenburg, and prays that said pretended gifts and transfers to said defendants may be annulled and set aside, and for an accounting and that the rights and interests of the parties may be ascertained and for general relief. A “guardian ad litem was appointed for the minors. Catherine Brandenburg and Christian Brandenburg demurred to the bill. The court sustained the demurrer and complainants ■abiding by their bill, the court dismissed the bill for want of equity.

      Caroline Moore and Mary Jones appeal.
    C. A. Darnell and L. B. Olmstead, for appellants.
    Butters & Armstrong, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The only question presented for consideration is, does the bill state a case over which a court of chancery will take jurisdiction? The demurrer is general and special, the special ground of demurrer being that the complainants have a complete and adequate remedy ' at law.

The contention of appellees is that the remedy of complainants is to procure letters of administration on the estate of Peter Brandenburg, and that the proceeding against the defendants, whatever the nature of it might be, should be prosecuted by the administrator; and that under the facts stated in the bill the complainants who are some of the heirs, cannot maintain a suit in chancery against the remaining heirs and other parties. The granting of letters of administration with any proceedings that might be had in the ' Probate Court is not a remedy at law in the ordinary " sense.in which that term is used. In England originally the king by his ministers took charge of personal estates; afterwards the trust was committed to the ordinary, an officer of the ecclesiastical courts, and until 1859, the ecclesiastical courts had jurisdiction of personal estates. In the United States the right of administrating upon estates is regulated by statute and such proceedings are entirely statutory. The statutes of Illinois provide (section 18 of chapter 3): “Administration of the estates of all persons dying intestate shall be granted to some one or more of the persons- hereinafter mentioned,” etc. The wording of this statute has been substantially the same from the earliest legislation in the state. In 1905, a proviso was added, that when the heirs are residents of the state and the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration, this statute shall not apply. Hurd’s Statutes 1905, sec. 18, chapter 3.

The statute of descent (Hurd’s Statutes, chap. 39) provides that “estates, both real and personal, of resident and non-resident proprietors in this state dying intestate * * * shall descend to and be distributed in the manner following, to-wit: First. To his or her children, in equal parts * * * Fourth. When there is a widow * * * and also a child or children * * * the widow or surviving husband shall receive, as his or her absolute estate, one-third of all the personal estate of the intestate.” This statute must be construed with the chapter on administration. The object of administration is to pay the debts of the deceased and distribute the remaining personal estate amongst the heirs according to the statute of descent.

The bill alleges that the deceased died intestate; that no administration has been taken out; that there is no property or effects belonging to the estate other than is mentioned in the bill; that there are no debts and the funeral expenses have been paid. The bill however does not allege that the heirs are residents of Illinois or that there are no minor heirs, except as such may be inferred from the various allegations, and it is obvious the heirs cannot settle the estate by agreement and without litigation. While cases may be found in this state where suits by certain heirs have been maintained against other heirs or even against other parties to procure a distribution of the estate of deceased persons, they have usually been concerning the estates of infants and aré found in the earlier reports. Lynch v. Rotan, 39 Ill. 14; McCleary v. Menke, 109 Ill. 294. “While in some of the earliest cases in this state it is held that equity retains a general jurisdiction over administrators, concurrent with that exercised by probate courts, yet the rule as now declared is, that courts of equity will not exercise jurisdiction over the administration of estates except in extraordinary cases, and by the liberal statutory rules for the settlement of estates, based on equitable principles and enforced in courts of probate, the reasons for equitable jurisdiction' in such cases are greatly restricted. Probate courts are established for the settlements of such estates, and questions arising in the course of administration are decided by them to the practical exclusion of courts of equity.” Goodman v. Kopperl, 169 Ill. 136. The cases in which chancery has taken jurisdiction in the matter of estates are ordinarily in aid of administration and to assist creditors after administration has been taken out. In recent years legislation has extended the equitable powers of probate courts so that there is not now the reason that formerly existed for courts of chancery taking jurisdiction over estates. While fraud is one of the original heads of original equity jurisdiction, the administration of estates is not within the jurisdiction of courts of chancery except in extraordinary cases and then only in aid of the Probate Court where administration has been taken out and the powers of the Probate Court are inadequate to give full and complete relief.

Sections 81 and 82 of the Administration Act give ample powers to the Probate Court to cite parties before it and examine them concerning any concealed or embezzled goods, chattels, moneys or effects or any evidence of debts, or to cite any person who has knowledge or information concerning any indebtedness belonging to any deceased person, and to make such order in the premises as the case may require. The courts have held that in proceeding under this section the Probate Court exercises equitable powers and procedure. Martin v. Martin, 170 Ill. 19; Dougherty v. Hughes, 165 Ill. 395; Seavey v. Seavey, 30 Ill. App. 625.

Two of the defendants, Ruby and Raymond Brandenburg, are minors and are not heirs of the deceased, Peter Brandenburg. It also appears from the allegations of the bill that one of the defendants is the widow of Peter Brandenburg. Under the statute she is entitled to a widow’s award. A court of chancery has no power or authority to appoint appraisers to set-off such an award. If the estate.of Peter Brandenburg “were administrated by a court of chancery, as here proposed, the method of distribution would be different from that presented by the law.” Goodman v. Kopperl, supra. A court of equity, when it does assume jurisdiction over the administration of an estate, takes jurisdiction over the whole estate and no other court would interfere in a matter already within the control of a court of general jurisdiction. The Probate Court if this suit is maintainable will be deprived of all right to take any action in the matter of the estate. “It is also well settled that a court of chancery will not, except in extraordinary cases, supersede the Probate Court in the administration of an estate. To maintain the present bill would be to deprive the Probate Court of all further power and jurisdiction over the estate.” Strauss v. Phillips, 189 Ill. 27; Shepard v. Speer, 140 Ill. 238; Harding v. Shepard, 107 Ill. 264.

We conclude that a court of chancery will, when the question of jurisdiction is raised, only take jurisdiction when the Probate Court has first attempted to administer the estate in the regular course of procedure and for some extraordinary reason the powers of the Probate Court are inadequate to administer full and complete justice. When such a condition arises, then a court of chancery will assume jurisdiction, supersede the Probate Court, and take charge of the entire administration. There having been no attempt to administer this estate in the Probate Court the demurrer was properly sustained.

Affirmed.


text:
    Perry Asplund, Appellee, v. The Conklin Construction Company et al., Appellants.
    Gen. No. 5195.
    1. Statute of limitations—what not statement of new cause of action. If the declaration or any count thereof stated a cause of action, although it might be defectively stated, then the re-statement in legal form of the defective statement, is not the statement of a new cause of action.
    2. Statute of limitations—what not statement of new cause of action. If the original declaration was general in its terms and used the term “default” of the defendant instead of the term “negligence” and if it stated the necessary facts, although defectively, an amended declaration does not state a new cause of action if it follows the original declaration but merely sets forth the facts with greater preciseness and particularity.
    3. Torts—when evidence tends to establish joint liability. Held, . that the evidence tended to show joint liability where it appeared that both of the defendant companies were co-operating in the construction of the same telephone line, that they had their offices in the same room, that the men, tools and implements of one were used by the other, that the superintendent of one was in charge of the business of the other and that the employes of each company worked for either company as directed by the manager of one of them.
    4. Master and servant—when latter cannot recover. "Where there is a safe way and a dangerous way to do work, both equally practicable, and the employe adopts the dangerous way, there can be no recovery.
    5. Master and servant—when latter cannot recover. If the rules made by the master for the performance of work by servants are reasonable and practicable, and the servant is informed of the rules and then voluntarily adopts another or chooses a method in disregard of an express order, and is injured because of his disregard of the rule of the master, he assumes the risk of injury and cannot recover.
    6. Master and servant—when latter cannot recover. "Where a servant has equal means of knowledge of defects with the master he cannot recover for injuries sustained because of such defect.
    7. Instructions—must not ignore defense. An instruction is erroneous which directs the jury that they may find that the plaintiff was in the exercise of due care if it entirely ignores facts of which there was proof which tended to show that the plaintiff was not in the exercise of ordinary care, and which likewise ignores the question of assumed risk which was supported hy evidence in the cause.
    8. Instbuctions—when upon contributory negligence erroneous. Instructions upon the exercise of ordinary care asked hy the plaintiff are erroneous if they emphasize and repeatedly call the jury’s attention to a particular matter charged as contributory negligence by the defendant and ignore other matters of claimed contributory negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Donahoe, McNaughton & McKeown, for appellants; Joseph W. Jones, of counsel.
    D. E. Anderson, for appellee; S. E. Freund, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

On December 1, 1906, Perry Asplund began a suit in case against the Conklin Construction Company and the Interstate Independent Telephone and Telegraph Company to recover damages for injuries claimed to have been sustained by him while in their employ. A declaration consisting of seven counts was filed, averring that the plaintiff was injured on December 2, 1904. A general demurrer was filed and sustained to all the counts. On June 16, 1908, an amended declaration containing five counts was filed. A special demurrer was sustained to all the amended counts, and in January, 1909, each count of the amended' declaration was amended. The defendants, after a demurrer to the last amended declaration had been overruled, filed a plea of the general issue and two special pleas of the statute of limitation; that the several supposed causes of action, in the amended declaration declared upon, did not nor did any or either of them accrue to the plaintiff within two years before June 16, 1908. The plaintiff demurred to the special pleas. The court sustained the demurrer and the defendants abided by their special pleas. On a trial before a jury, a verdict was rendered against both defendants for $5,000 on which judgment was rendered. The defendants appeal to this court.

The first assignment of error questions the ruling of the trial court in sustaining the demurrer to the special pleas. The appellants contend that since a general demurrer was sustained to each count of the original declaration, it has been adjudged that the declaration stated no cause of action, and that therefore there was no cause of action stated in any declaration within two years from the time the cause accrued, and that the plea of the statute was a good plea and that therefore the demurrer to the pleas was erroneously overruled. If the declaration or any count stated a cause of action although it might be defectively stated, then a re-statement in legal form of the defective statement is not the statement of a new cause of action. In the original declaration the first count avers that plaintiff was in the employ of the defendants engaged in constructing a telephone line at the time he was injured and that the defendants by their servants carelessly planned and managed the construction of said line and that through the negligence of defendants he was injured; the fourth count, after averring that on December 2, 1904, the plaintiff was working as a lineman in the construction of a telephone line for the use of the defendants, avers that said telephone line and the construction thereof, “were then and there under the care and supervision of divers then servants of said defendants and each of them, who were then and there constructing, altering and maintaining the said telephone line as aforesaid, and whereas, it then and there, became and was the duty of the said defendants and each of them to provide for 'the plaintiff reasonably safe, sound and secure material with, on and about which to perform his said work as lineman, bnt therein the defendants and each of them wholly failed and made default, by means whereof and in consequence of said default and neglect of said defendants and each of them as aforesaid, the plaintiff who was then and there with all due care and diligence working as lineman on, in and about said telephone line was then and there precipitated with great force from a great height, to wit, twenty feet, to and upon the ground,” and injured, etc.; the fifth count avers as in the fourth count to the first “whereas” and then avers that “it then and there became and was the duty of said defendants and each of them to inspect certain cross-arms which were then and there a portion of the material used in the construction * * * of said telephone line, and to know that the said cross-arms were reasonably safe to use in the construction * ' * * of said telephone line, but therein the defendants wholly failed and made default; by means whereof and in consequence of said default and neglect of said defendants, and each of them the plaintiff,” etc.; the sixth count alleges the duty of the defendants to inspect a cross-arm and that defendants neglected to do so, etc.; the seventh avers the duty of defendants to furnish to plaintiff a safe cross-arm on which to climb and a neglect to do so.

The first count of the last amended declaration avers that “the defendants carelessly, negligently and wrongfully * * * failed to furnish to plaintiff a reasonably safe cross arm upon which the plaintiff might climb,” etc. The third count of the amended declaration avers that the -defendants negligently failed to inspect the cross-arm upon which it became necessary for plaintiff to climb and rest his weight. The fourth count avers the duty of the defendants to provide the plaintiff with reasonably safe and sound material with, on and about which to perform his work as a linesman but therein the defendants failed and made default and in consequence of said default and neglect of the defendants the plaintiff was injured. The second and fifth counts aver the duty of the defendants to inspect the cross-arms, which were a portion of the material used in the construction of said telephone line, and to know that they were reasonably safe to use in the construction of said line but therein the defendants failed and made default, and in consequence of said neglect of the defendants the plaintiff was injured. The original declaration was general in its terms and used the term default of the defendants in place of the term negligence, and while it stated the necessary facts yet it was a defective statement of plaintiff’s cause of action; there is no new or additional fact set forth in any count in the amended declaration that is not found in the corresponding count in the original declaration but only a more precise and particular statement of the cause of action set forth in the original declaration.- A declaration may contain sufficient averments to state a cause of action and be demurrable because it stated too much as when a count is bad for duplicity, and yet when it is divided into different counts, they may be good although containing nothing new. Lee v. Republic Iron and Steel Co., 241 Ill. 372; same case 148 Ill. App. 585. A count which is but a re-statement in somewhat different form of the cause of action set up in a count in the original declaration filed in time is not barred by the statute of limitations. Chicago City Ry Co. v. Leach, 182 Ill. 359; Chicago City Ry. Co. v. McMeen, 206 Ill. 108; C. C. Ry. Co. v. Hackendahl, 188 Ill. 300. There being no new or additional fact stated in the amended declaration, the demurrer to the pleas of the statute of limitations was properly sustained.

The appellant, Interstate Telegraph and Telephone Company, claims it is not liable because it was not constructing the line. The evidence shows that the Conklin Construction Company was engaged in constructing a new telephone line near Joliet for the Interstate Independent Telephone and Telegraph Company. The latter mentioned company by its charter obtained from the state the franchise and had secured the right to place the line on the public highway; the construction company had no right to build any line on the highway except for and under the rights of the Telephone and Telegraph Company. The evidence tended to show that both companies were co-operating in. the construction of the line; that they had their offices in the same room; that the men, tools, and implements of the Telephone and Telegraph Company were used in the work by the Construction Company; that the superintendent of the Telephone and Telegraph Company was in charge of the business for the Construction Company, and that the employes worked for either company as directed by the manager. These facts if proved tended to show a joint liability, if either company is liable. N. C. St. R. R. Co. v. Dudgeon, 184 Ill. 477; West v. St. L. V. & T. H. R. R. Co., 63 Ill. 545; Balsley v. St. L. & T. H. R. R. Co., 119 Ill. 68; Chicago and Grand Trunk Ry. Co. v. Hart, 209 Ill. 414.

The evidence also shows that appellee was an experienced lineman, having worked for several years at that employment; that he knew that the Construction Company did not inspect the cross-arms; that appellee had a safety belt, furnished by himself, attached to his person, but he was not using it at the time of the accident.

Appellee at the time of the accident climbed a pole on which a messenger wire, which is a strong wire intended to carry a bunch of smaller wires wrapped in a cable, had been strung five feet below the top of the pole. An assistant tied a painted ten-pin cross-arm about three and three-fourths inches in width by three inches thick to a rope, and appellee pulled the cross-arm to the top of the pole and placed it in a gain or notch which had been cut in the pole eight inches below the top and then drove in two lag bolts or screws to hold the arm in place. The lag bolts were driven in so tight that the washers between the bolt heads and the cross-arms were sunk into the wood. The cross-arm was not level and appellee climbed down and stood on the messenger wire and leaning out on the cross-arm put his weight on it and struck the cross-arm with his hand axe to try and adjust it, before fastening the " iron braces already attached to the cross-arm to the pole, when the cross-arm broke at a knot which extended through the cross-arm between where his weight was on it and the pole. The appellee fell to the ground and was injured. A man named Hansel was boss of the crew who were placing the cross-arms and stood some distance away to see when the arm was level. There is proof that other men on adjoining poles doing similar work used safety belts. Parsons, the superintendent for appellants, testified that he had instructed all the linemen, including appellee, not to work while up on poles without using their safety belts, and appellee testified that it was not customary for experienced linemen to use their safety belts when doing such work, but does not deny that Parsons gave the orders testified to by him. The contention of appellants is that appellee contributed to the injury by his method of doing the work and in not following Parsons’ instructions. There was proof that it was bad practice in construction work to drive both lag screws before adjusting the cross arm to a horizontal line and that he should have levelled the cross-arm after partly driving in a single lag screw before at- • tempting to drive the other, and that appellee negligently threw his weight on the cross-arm and while so doing struck the end of the cross-arm with his axe.

Where there is a safe way and a dangerous way to do work, both equally practicable, and the employe adopts the dangerous way there can be no recovery. Karr Supply Co. v. Kroenig, 167 Ill. 560. If the rules made by the master for the performance of work by employes are reasonable and practicable, and the employe is informed of the rules and then voluntarily adopts another or chooses a method in disregard of an express order, and is injured because of his disregard of the rule of the master, he assumes the risk of injury and cannot recover. Campbell v. City of Clinton, 94 Ill. App. 43; 20 Am. & Eng. Ency. of Law 105 (2nd Ed.).

It is also insisted by appellants that the defect in the cross-arm was so obvious that the appellee, an experienced lineman, must have seen it and therefore he assumed the risk. Where a servant has equal means of knowledge of defects with the master, he cannot recover for injuries sustained because of such defect. Whether the defect was so obvious that the appellee must have seen it and whether he had equal means of knowledge with appellants were questions of fact for the jury, but they were defenses which could not be ignored. Appellants were required to furnish appellee with reasonably safe material with which to work, but if they furnished him with material so defective that he knew the danger of working with it then he assumed the risk and cannot recover.

Instructions numbers five, six and seven given to the jury at the request of appellee refer to the safety belt. Number five is:

“The court instructs the jury that if you believe from the evidence that an ordinarily prudent lineman accustomed to the work in which the plaintiff was engaged at the time of the accident, would have done the work the plaintiff was then doing without using a safety belt, then you may find that the plaintiff was exercising reasonable care for his own safety, even though he was not using a safety belt at the time of the accident.”

Number six is very similar in language to the fifth. Number seven is:

“The court instructs the jury that if it was not usual and customary among linemen to use a safety belt in performing work such as the plaintiff was performing at the time of the accident, then it was not necessarily contributory negligence on the part of the plaintiff to work without a safety belt at that time and ■under those circumstances.”

Number five is misleading and directs that the jury may find that the appellee was in the exercise of due care in doing the work without using the safety belt, and entirely ignores the facts of which there was proof that appellee was ordered not to work on poles without a safety belt, the claim made by appellant that appellee was guilty of contributory negligence in the way he drove the lag bolts and afterwards attempted to adjust the cross-arm, and the question of assumed risk if the defect was so obvious that appellee saw it. These three instructions were erroneous in emphasizing and repeatedly calling the jury’s attention to the use of the safety belt and ignoring the other matters of claimed contributory negligence. Because of the error in the giving of these three instructions the judgment is reversed and the cause remanded.

Reversed and remanded.

'Mr. Presiding Justice Dibell took no part in the consideration of this case.


author: Me. Justice Thompson

text:
    John Obstetar, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5200.
    Master and servant—what risks assumed. Seld, under the evidence in this case, that the plaintiff was injured because of assumed risk, namely, a latent defect in a water tube which no inspection could have discovered, by reason of which defective tube an explosion resulted.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibeix, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed with finding of facts.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    Garnsey & Wood, for appellant.

      Donahoe, McNaughton & McKeown, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by John Obstetar against the Illinois Steel Company, to recover damages for injuries sustained by him while in the employ of the defendant as a boiler washer. The case was tried upon two counts. The first count contains a general charge of negligence on the part of the defendant in permitting its boilers to become in bad and unsafe repair by means whereof the plaintiff while washing a boiler in close proximity to another boiler was injured in consequence of the explosion of said other boiler. The second count alleges negligence on the part of defendant in permitting the interior of the flues to become dirty, covered with scale, weakened and burnt out, and that the defendant neglected to inspect the boilers at proper times and with proper care. On the trial plaintiff obtained, a verdict for $5,000 on which judgment was rendered and the defendant appeals.

The evidence shows that the boilers of appellant company are what are termed' Sterling water tube boilers in which the drums, tubes and flues are the water and steam containers. Viewed from the outside, each boiler is a rectangular brick structure about twelve feet wide, twenty feet long and twenty-two feet high. This structure forms the fire box and while the boiler is in operation is filled with flames and hot gases, and within these walls the entire boiler proper is contained except where the heads of the drums protrude through the walls. Within the lower part of the fire box and horizontally across it, towards the back of it, are two drums called mud drums, each about the same distance from the bottom; these are about a foot apart and connected by tubes so that water may circulate from one to the other; each of these drums is about four feet in diameter and twelve feet long. There are also three other horizontal drums near the top of the fire box, one near the front, one about the center and the third near the back. The front and back drums are four feet in diameter and the middle drum is five feet in diameter and all extend across the fire box. A person looking into the fire box through the door in front sees four rows of water tubes running from the lower front drum to the upper front drum; each row extends across the fire box from wall to wall. There are sixteen tubes in each row; each tube is about sixteen feet long and about four or four and a half inches in diameter. Behind this bank of tubes is a wall of fire brick three inches thick extending from the mud drum to within about two feet of the top front drum so that this wall slants towards the front of the boiler. A similar set of rows of water tubes runs from the front mud drum behind the fire wall to the upper middle drum. Behind this bank of tubes is another fire wall extending from the upper middle drum to within about two feet of the space between the mud drums. A similar set of water tubes runs from the back mud drum to the upper back drum. The upper drums are also connected by what are called circulating flues; one set extends from the front drum to the middle drum and another from the middle drum to the back drum. These circulatory flues run from the uf>per sides of the drums. There are also circulating flues connecting the two upper front drums at their lower sides. Above these circulating flues, which are slightly arched, are laid steel sheets and upon these sheets are laid the masonry which forms the top of the boiler.

The boilers are fired with waste gas from the blast furnaces. The fire first strikes the front rows of tubes, then goes up over the front fire wall between it and the front upper drum, then strikes the middle set of tubes, then goes under the middle fire wall and then strikes the third set of tubes and thence out of the boiler. A series of boilers are connected together discharging steam into a steam feed pipe.

At the time of the accident appellee was standing on a platform by the side of number two boiler washing it, it having been shut down for that purpose. While there an explosion occurred in the number three boiler near number two, displacing bricks and plates at the top of the boiler and severely burning the appellee. It is claimed by the appellee he was injured by the explosion and bursting of one of the circulatory flues in the number three boiler. It is claimed on the part of the appellant that what burst was a tube in the seventh row of tubes, one that runs from the front mud drum to the middle drum.

The only witness who testified on behalf of plaintiff as to what exploded was a man named John Pruss, a witness who spoke English imperfectly. At the time of the accident Pruss was- employed as a boiler washer’s helper, but he was not present at the time of the accident and did not see the exploded boiler until after" it had been repaired, when he washed the boiler. He testified that at that time two sheets of steel which support the masonry above the boilers were out of place and that he saw a new steel circulating flue in the boiler between the middle and back drum. He says that the boiler was' very dirty, that he never washed as dirty a one before; “that boiler may be dont was wash for a year before it was cleaned. In seven or eight days there cant be so much scale in the boiler if you "never touch them. Cant be so much scale in that boiler for a month if you dont touch them at all.” He also testified when he got through washing the boiler the mud drum was filled with scale up to the manhole; that the amount of scale was six times as much as in any other boiler he ever washed; that the other circulating flues had scale on them but this one was clean and that there was no new tube in that boiler or tube that had been repaired; and that the flue introduced in evidence by appellant was not the one that burst. He says that he cleaned out all the tubes connecting the middle and the mud drums and that every one was dirty, and that there was .so much scale in the tubes that the cleaning machine would not go into the tubes.

On behalf of appellant William McMullen, a foreman of boilers, testified that number three boiler was put in in 1905, and it was inspected every eighteen or nineteen days both inside and out. Frank Sullivan, a boiler chipper, testified that the boilers were inspected every eighteen or twenty days, but he did not know when number three was inspected. Daniel Sullivan, a boiler chipper working with appellee when he was injured, testified that the boiler that exploded was washed within two weeks before the accident. William Fitzgerald, a boiler inspector for the appellant, testified to the method of inspection, and that he had inspected the boiler that exploded eight or nine days before, the accident; that it was all right at that time; that he saw this boiler fifteen minutes after the accident and that the tube that gave way was in the seventh row, the flue third from the manhole a foot or so from the top middle drum. He testified that the exhibit produced in court was the tube that exploded and says that it was not a circulatory flue that exploded. Peter Whalen, appellant’s superintendent of boiler service, testified that he saw the boiler fifteen minutes after the accident and identified the exhibit, by punch marks which he had placed there, as the tube that exploded. Charles T. Mason, assistant engineer of appellant, testified that he saw the boiler installed; that it was tested with cold water to 225 pounds pressure, which is a more severe test than a hot one; that he examined the boiler the forenoon of the day of the accident and identified the tube which burst as a number seven tube. James Sparrow, a boiler inspector for the Casualty Insurance Company, testified that he inspected the boiler the day after the explosion before it had been washed; that it was practically in good condition except the burst tube; that he examined the other tubes and found no scale on them; that he examined and tested the exploded tube; that he examined the burst part of the weld and found the knitting part was not as it should have been; that there was no test known which would ascertain such defect, and he explained the method of welding these tubes.

The very clear preponderance of the evidence is that it was not a circulatory flue that exploded, as testified to by Pruss, but a tube in the second row of the middle bank of tubes connecting the lower front drum with the upper middle drum; that the cause of the explosion was a defective weld which no inspection or test could have discovered. The proof further shows that these tubes were tested to 225 pounds; that there was a safety valve set at 150 pounds steam pressure, and there was a Bristol recording automatic pressure gauge which recorded the pressure on the boiler, and this record shows that the pressure never reached a danger point. The only evidence in the record showing neglect was that of the witness Pruss, who is mistaken as to what exploded; it is clearly shown that it was not a circulating flue that exploded, but it was a water tube, and the explosion resulted from a latent defect which no inspection could have discovered—a defect similar to the defect in Illinois Steel Company v. Laughran, 136 Ill. App. 432. The very clear weight of the evidence established that the appellee was injured because of an assumed risk—a latent defect in a water tube, and that the appellant company is not guilty of the negligence alleged in the declaration. The judgment is reversed with a finding of fact.

Reversed.

Finding of fact, to be incorporated in the judgment:

We find that appellee was injured by the bursting of an imperfect water tube which was an assumed risk of his employment and that appellant was not guilty of the negligence alleged.

Mr. Presiding Justice Dibell took no part in the decision of this case.


text:
    Thomas Gardner, Appellee, v. Chicago, Lake Shore & Eastern Railway Company, Appellant.
    Gen. No. 5202.
    1. Appeals and errors—when sufficiency of evidence not saved for review. The sufficiency of the evidence to sustain the amount of the judgment or the determination of the jury upon the questions of contributory negligence and assumed risk is not saved for review if such questions were not urged in the motion for a new trial and an exception preserved to the ruling of the court on such motion.
    2. Appeals and errors—when exception not properly preserved. The record written hy the clerk showing that a motion for a new trial was overruled and that an exception was preserved thereto is not sufficient; both of such matters in order to he duly preserved must he supplied by incorporation in the hill of exceptions.
    8. Trial—when remarles of counsel not ground for reversal. A remark of counsel to the effect that he was not going to ask for any instruction is not ground for reversal if made in response to a question hy the court and if not an intentional violation of the rules of practice.
    4. Evidence—competency of proof as to surroundings of accident. It is proper to show the surroundings and location of the place where an accident occurred and also the conditions prevailing at such place at the time of the accident.
    5. Instructions—approved form upon duty to inspect iralces. An instruction upon this subject as follows, approved.
    “It is conceded in this case that when plaintiff pulled on the rod it came, hut that does not alone make defendant liable. If you find from the evidence, that in the exercise of ordinary care the defendant could not have known of the condition of the rod and its attachment, then you will find the defendant not guilty.”
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Opinion modified and refiled, rehearing denied April 13, 1910.
    Garnsey, Wood & Beye, Lennon & William, for appellant; Knapp & Campbell, of counsel.
    Donahoe, MojSTaughton & McKeown, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Thomas Gardner brought a suit in case against the Chicago, Lake Shore and Eastern Railway Company to recover damages for personal injuries sustained by him while in its employ. The declaration contains several counts alleging that the defendant negligently failed and neglected to exercise reasonable care in the inspection of certain cars, brakes, appliances and attachments thereof before the plaintiff was required to handle the same, whereby a certain rod and part of the brake system was suffered to be and remain insecurely attached to other parts of said brake system, and that the plaintiff, while in the exercise of ordinary care for his own safety and in the performance of his duty, pulled said rod to release the air from the brake and said rod pulled away from the car, whereby he fell thirty feet and was injured. Plaintiff recovered a verdict for $15,000 upon which judgment was rendered and the defendant appeals.

The evidence shows that on April 30, 1907, Thomas Gardner was a switch foreman in the yards of the appellant company adjacent to the works of the Illinois Steel Company; that the appellant company delivered coal and iron ore to the Steel Company; that a track on which cars loaded with material were delivered to the Steel Company was on a trestle or elevated platform about thirty feet above the surface of the ground, and was known as the Tónica or High Line. It was a rule -of the company that cars delivered over this line to the Steel Company should be inspected by the company’s inspector before being placed on the High line, and if any defects were discovered it was the duty of the inspector to place a bad order card on the car and mark with chalk the particular part of the car found defective. On the night of April 29th a train consisting in part of new Union Pacific cars loaded with iron ore, was switched into the yards of the company, and the cars were placed on the High line a little before midnight. When an engine equipped with air is attached to the train the brakes are controlled from the engine. When the engine is not equipped with air, the brakes are released by releasing the air on the train by hand. This was done by pulling a rod attached to the valve on the air cylinder, thereby permitting the air to escape, and is called bleeding the car; each car must be bled separately. There was a sidewalk twenty inches wide, consisting of planks resting on long ties which extended beyond the rails a sufficient distance to carry the walk along the side of this elevated track for the accommodation of switch and train men, but there was no guard rail by the sidewalk for the protection of the men. This High line was close to the Steel Works and in a noisy and dark place due to the noise and smoke from the furnaces. The place was so noisy that it could not be determined by the sense of hearing that the release valve was operating while the rod was being pulled; the hissing-noise of the escaping air was destroyed by the noise of the blast furnaces, so that the switchman, when releasing the air by pulling the rod, had to watch the piston in the brake cylinder to see if the air escaped. Appellee in the performance of his duty had released the air from two Union Pacific cars; he stepped to the third Union Pacific Car, pulled the rod, and it pulled out causing him to lose his balance and fall from the top of the High line to the ground below, breaking both his legs.

Appellant has argued that the case should be reversed for the following reasons: (1) that the verdiet and judgment cannot be sustained upon the evidence ; (2) that the appellee was injured because of an assumed risk or of his own contributory negligence; (3) that just preceding the arguments in the case the presiding judge asked counsel for appellee, “Have you your instructions ready Mr. McNaughton?” and he replied, “I am not going to ask for any instructions”; (4) that the verdict is excessive; (5) that the court erred in the admission of evidence, and (6) that the court erred in modifying an instruction asked by the appellant.

The bill of exceptions in this case does not contain any ruling of the trial court upon the motion for a new trial nor any exception to any ruling concerning the motion for a new'trial; neither does it contain any reference to the judgment or exception to the judgment. In order for the appellant to raise any question concerning the sufficiency of the evidence to sustain the amount of the judgment, or the question of contributory negligence and assumed risk, or that the judgment is excessive, • the question should each of them have been urged in the motion for a new trial and an exception preserved to the ruling of the court. The record proper of the clerk shows that the motion for a new trial was overruled and that the appellant excepted thereto, but that cannot take the place of an exception in a bill of exceptions. Yarber v. C. & A. Ry. Co., 235 Ill. 589; People v. Moritz, 238 Ill. 494; Daniels v. Shields, 38 Ill. 197; City of Toluca v. Arnold, 108 Ill. App. 584; Dolph v. Sullivan, 129 Ill. App. 245. “In order to present to this court the question as to whether a verdict is against the evidence, it is necessary for the parties against whom the verdict passes to make a motion for a new trial, and upon the motion being overruled, to except to. such ruling and ■ to preserve that exception by the bill of exceptions. In this case the clerk, in writing up the judgment, recited in the entry thereof in the court record, the denial of the motion for a new trial and the exception of plaintiffs in error to the denial of the motion. Bnt that avails nothing. Such an exception cannot be made to appear in that manner. It can only be preserved by the bill of exceptions.” People v. Moritz, supra; Yarber v. C. & A. Ry. Co., supra.

With reference to the remark of counsel that he was not going to ask for any instructions, it was made in response to the question of the court. It was not an intentional violation of the rules of practice, and it was neither addressed to the jury nor intended for them. The court ruled on the objection of counsel in their favor, and as there is no exception-to overruling the motion for a new trial we think this question is not saved for review.

During the trial plaintiff was asked, “What class of switchmen with reference to energy and activity are assigned to duty on the High line?” He answered, “Why they generally pick out the best men they can find and put him up there in order to do that work. It has all to be done quick.” Appellant moved to exclude the. answer and the court excluded the first sentence of the answer. There was no objection to the question and we see no objection to the part of the answer that was permitted to remain. It was simply a description of the work.

It was further contended that the court erred in admitting evidence concerning the noise and smoke of the furnaces of the Steel Company to go to the jury. It was proper that the surroundings and location of the High line and the appellee at the time of the accident should be given to the jury; there was no error in its admission. C. & E. I. Ry. Co. v. Beaver, 199 Ill. 84.

During the examination of the witnesses Hugh Grow-ran and Bobert M. Cray, the court was asked to exclude their evidence as to the operation of the Westinghouse and New York air brake systems on the ground that there was no evidence showing that either of these systems was on the car in question. There was involved in the case the question of how to properly bleed cars by hand. They testified as experts upon air brakes and the proof is that there is no other 'system used except the New York or Westinghouse air brake systems upon freight cars at the present time, and that they are operated in the same manner. There was also evidence by three other witnesses on the same question, concerning which no motion was made to exclude. We find no reversible error in ruling upon the admission of testimony.

It is also argued that the court improperly modified an instruction asked by the appellant. The instruction asked was:

“It is conceded in this case that when plaintiff pulled on the rod it came, but that does not alone make defendant liable. If you find from the evidence that there was no reason, in the exercise of ordinary care, why the defendant should have known of the condition of the rod and attachment, if any, then you will find the defendant not guilty.”

The court modified the instruction to read as follows :

“It is conceded in this case that when plaintiff pulled on the rod it came, but that does not alone make defendant liable. If you find from the evidence, that in the exercise of ordinary care the defendant could not have known of the condition of the rod and its attachment, then you will find the defendant not guilty.”

The instruction as presented was misleading and adroitly intended to withdraw from the consideration of the jury the fact that the appellant owed to appellee the duty of inspecting the brakes. The instruction as given to the jury is an accurate statement of the law, and was liable to mislead as asked. The appellant has no just cause of complaint in the modification. But further, said modification is not assigned for error, and there being no exception to the denial of the motion for a new trial, the question is not in any way presented for review. The assignment that the court erred in overruling the motion for a new trial preserves no question for review where no exception to the denial of the motion for a new trial is preserved in the bill of exceptions. The judgment is affirmed.

Affirmed.