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    Web Kinder, Administrator, Appellant, v. Perry King, Appellee.
    1. Administration of estates—debts of deceased. The estate acquired by an administrator is chargeable with the burdens placed thereon by deceased.
    2. Administration of estates—rights of administrator. An administrator acquires the exact interest in property owned by the deceased at the time of his death, subject to liens thereon, valid as between the parties.
    3. Mortgages—chattel mortgage, when void. A chattel mortgage is void as to third persons if possession is not taken on maturity of the debt, but the widow, heir, or administrator, of a mortgagor is not such third person.
    4. Mortgages—recording. As between the parties to a chattel mortgage, it is valid, though not recorded.
    5. Mortgages—chattel. A chattel mortgage is valid, though the mortgagor was insolvent and in possession of the goods at the time of his death, and the instrument was not filed for record until two days afterward, and the administrator will not be allowed to assail or impeach the acts of his intestate in behalf of unsecured creditors.
    Appeal from the Circuit Court of Lawrence county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.

      S. J. Gee and John E. McGaughey, for appellant.
    George W. Lackey and James Groff, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was a petition for citation hy Web Kinder, administrator, etc., alleging that Perry King was possessed of $2,000 worth of drilling tools, etc., which the said administrator was entitled to have delivered to him. The case was tried in the County Court and from there appealed to the Circuit Court of Lawrence county. The Circuit Court denied the prayer of the petition, from which order this appeal is prosecuted.

The petition was presented by the administrator and alleges that Perry King has in his possession property belonging to the estate of George McAuliff consisting of boilers, engines, rigs, drills, tools, etc., of the value of about $2,000, and asking that he show cause why such property should not be delivered into the possession of the petitioner. To this petition Perry King filed his answer admitting the possession of the goods, averring that he held possession thereof by virtue of a chattel mortgage given by George McAuliff on the 16th day of June, 1911, to secure a note for $1,000 due six months from date, which mortgage was filed for record on December 9,1911, and on December 16, Perry King took possession of such goods and chattels by virtue of such mortgage. To this answer Web Kinder, administrator, replied denying that such mortgage was a valid and subsisting lien for the reason McAuliff died the 7th day of December, 1911, and at the time of his death he was in possession of the said goods and chattels; that he was insolvent and that said mortgage was not placed on record until two days after the death of said George McAuliff and that possession was taken of the goods by Perry King on December 16th. That the J. Becki Manufacturing Company has a just claim against George MeAuliff for $920.55; that the Oil Well Supply Company has a claim for $667.88 and that this credit would not have been given if they had known of the said chattel mortgage; that property statements were made by said MeAuliff to each of said creditors and no mention was made of this chattel mortgage and that such credit was extended after June 16, 1911; that said MeAuliff had the said property in his possession up to the time of his death. The case was heard in the Circuit Court upon the following stipulation of facts, to-wit:

“George MeAuliff did on the 16th day of June A. D. 1911, make and execute to Perry King a note for one thousand dollars due in six months from date. Said note was secured by a chattel mortgage dated June 16th A. D. 1911, duly executed by George MeAuliff and acknowledged before John A. Keller the Justice of the Peace of the Township of Lawrence, State of Illinois, for value received. Said mortgage was on two complete drilling outfits used in drilling oil and gas wells and all their equipments, located in the County of Lawrence, State of Illinois, a copy of which is attached to the answer of Perry King herein or originals produced in court; „

We further state that George MeAuliff departed his life intestate on the 7th day of December A. D. 1911, in the County of Lawrence, State of Illinois, and that on the 9th day of December, 1911, Perry King filed for record the above named mortgage which is recorded in Book L, page 50, and that Perry King on the 16th day of December A. D. 1911, took possession of the property mentioned in the mortgage and advertised the same for sale in accordance with the terms of said mortgage.

We further state that Web Kinder was appointed' administrator of the estate of George MeAuliff, deceased, at the December term of the County Court, Lawrence County, Illinois, A. D. 1911, and that on the 20th day of December A. D. 1911, the said Web Kinder, administrator, caused a citation to be issued from the said County Court citing the said Perry King to appear and show cause why he should not deliver up possession of the drilling tools taken under the mortgage executed from George McAuliff to Perry King. That at the time of the death of the said George Mc-Auliff he was insolvent and had been for one year before his death but such facts were unknown to Perry King at the time of the execution of said mortgage or at the death of McAuliff or at the time of the taking possession of said property and advertisement of said sale of said chattels of George McAuliff. That he left a number of unsecured general creditors without any lien, attachments or judgments against the above described property at the time of his death, ¿mong which were the Oil Well Supply Company in the amount of $653.66; J. Beeki Manufacturing Co., $931.16; Ajax Iron Works, $253.14, as well as others. The total amount of his indebtedness at the time of his death was $3,026.61, exclusive of the one thousand dollars due Perry King, which had been allowed by the County Court of Lawrence county, Illinois, February Term' 1912. That the aforesaid creditors had no knowledge of or notice of the chattel mortgage of Perry King until it was recorded on December 9, 1911, after the death of George McAuliff, and have no security or means to secure payment except from the estate of George McAuliff. That the total assets of the estate of George McAuliff is much less than the total indebtedness of $3,026.61, as shown by the records of the Probate Court of Lawrence County, Illinois.” It was afterwards stipulated by the parties that the aforesaid property should be sold and the proceeds deposited in the First National Bank at Bridgeport to await the final determination of this suit, and that the money should then be turned over to the party in favor of whom the suit was determined.

There were several errors assigned by appellant but the only question involved in them is, did the Circuit Court err in refusing to require Perry King to deliver the property in question to the administrator, and this is the sole question for determination upon this appeal.

It is contended by counsel for appellant that the administrator as representative of the creditors of an insolvent estate occupies the same position as the creditors in respect to a mortgage, void because not recorded, and that as this mortgage was not recorded prior to the death of McAuliff no specific lien could be obtained by King by the recording of the same after the death of the mortgagor; that the administrator stands as trustee for the creditors and as such trustee it is his duty to take possession of all of the property of which the mortgagor died seized. In support of this doctrine he has referred us to several authorities which appear to sustain the contention of counsel; notably among the cases referred to is that of Blackman v. Baxter, Reed & Co., 125 Iowa 118, which holds that “after the demise neither the recording of an incumbrance nor the taking possession of the property can confer a preference. All rights are of necessity to be adjudicated as on the day of the decedent’s death, and, as in an insolvent estate, the administrator takes the property for the benefit of the creditors, their interest in the assets relates back to his death and right of possession.” This is the view taken by the courts of many states upon this question and if this view of the law should be held to control in this matter then the position taken by counsel for appellant, as to the right of petitioner to obtain possession of this property, would prevail. Many of the states, including Illinois, hold, that while it is true the administrator takes possession of the property for the benefit of the creditors and the representatives of the deceased, yet he only takes such rights in the property as the deceased owned at the time of his death. Woerner in his work upon the law of administration says, that in many other states, and among them Illinois, the administrator is not permitted to assail or impeach the acts of his intestate. Woerner’s American Law of Administration, sec. 296. In Choteau v. Jones, 11 Ill. 319, it is said: “An administrator is not the agent or trustee of creditors, for the purpose of avoiding a fraudulent conveyance. He is the representative of the intestate, and succeeds to his rights and interests. He stands in his place, and is hound by his acts. Whatever was binding on the intestate is binding on his administrator. He is clothed with no greater power than the intestate possessed.” It is said by Justice Dibell, a learned jurist of the second district, in Dearth v. Bute, 71 Ill. App. 494: “We understand it to be the settled law of this state that an administrator takes the estate as he finds it, cum onere; that he stands in the shoes of the deceased, and that whatever would bind the property in the hands of the deceased binds it in the hands of the administrator. Some states have statutes authorizing the administrator to attack the acts of the decedent as fraudulent. In other states the courts hold the administrator represents the creditors and may assert their rights, and so may assail a transaction for fraud of his decedent. But in many other states, and among them Illinois, the administrator is not permitted to assail or impeach the acts of his intestate.” It has been said by the Supreme Court of this state in discussing who are meant by “third parties” as that term is used in the statute. “Can it mean any other than creditors and subsequent incumbrancers? We understand the law to be, that a chattel mortgage is only void as to third persons if possession is not taken on the maturity of the note it was given to secure, but we have never understood that a widow, heir, or administrator of a mortgagor, was said ‘third person.’ They stand in the shoes of the deceased, and are his representatives, and concluded by all lawful acts and contracts he may have entered into or performed.” Sumner v. McKee, 89 Ill. 132.

We are of the opinion that under the laws of the state of Illinois the administrator has no greater rights in the property than his intestate had. He is bound by the acts of the intestate and takes it subject to the liens which the intestate had created and which were binding upon him.

The next question that arises is, was this mortgage valid between Perry King and the deceased though not recorded? We think it is a well settled doctrine of this state that as between the parties thereto a mortgage is valid and binding though not recorded. Barchard v. Kohn, 157 Ill. 579; Martin v. Sexton, 112 Ill. App. 199.

The mortgage was valid as between King and the deceased and being so the right that the administrator acquired in and to this property was taken with the burdens that the deceased had placed upon the property, and the administrator acquired the exact interest, no greater or no less, than was owned by the deceased at the time of his death, and while it may be a hardship to the other creditors, yet this seems to be the settled law of this state and we are of the opinion that the Circuit Court did not err in its determination of this question and the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

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    P. J. Soucy, Appellant, v. Louis Obert Brewing Company, Appellee.
    1. Landlord and tenant—landlord not covenanting to repair may recover rent. A lessee agreed to “maintain the demised premises in as good condition and repair as the same should be upon taking possession, natural wear, injury by fire, or other inevitable accident, excepted,” and that all inside repairs were to be'“made at expense of the lessee and all outside repairs at the expense of the lessor.” The building was constructed out of inferior material, one wall was out of plumb, and both the lessor and lessee were served with notice by the city building commissioner that the building was in an unsafe and dangerous condition, requiring immediate repair or removal, and directing that it should be braced so as not to be in danger of falling. The lessee abandoned the premises and refused to pay more rent, because the building was untenantable. Held, that the two clauses would be construed to require the lessee to make all the repairs, the expense of the outside repairs to be paid by the lessor,.and that in the absence of covenant of lessor to make repairs, the tenant is liable for rent.
    2. Landlord and tenant—covenant to repair not implied. A lessee, who undertakes to keep a house, being the whole of the premises, in as good repair as when he took it, fair wear and tear excepted, is not entitled to abandon it upon its becoming uninhabitable for want of repair during the term, the landlord being under no implied obligation to make repairs.
    3. Landlord and tenant—“caveat emptor" applies. The rule of “caveat emptor" applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant.
    4. Landlord and tenant—waiver of covenant. Where a landlord covenants to repair before the term, and the tenant takes possession without such repair having been made, he cannot abandon the lease and refuse to pay rent for a breach of any other covenant than for quiet enjoyment.
    5. Landlord and tenant—general repairs of apartment building. It is the duty of a landlord of a building, containing many rooms or apartments, which are rented to different persons, to keep up the general repairs of the whole building and the portions controlled by him.
    6. Landlord and tenant—repairs ordered by building commissioner not waiver. A landlord, in straightening up a demised building, on order from the building commissioner, does not thereby waive the tenant’s covenant to repair.

      7. Contracts—construction of, where written and printed clauses conflict. Where a type-written clause in a contract conflicts with a printed provision, the former should prevail but effect should be given to all the terms, if possible.
    Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1913.
    C. E. Pope, for appellant.
    Charles L. Obert and Dan McGlynn, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was an action commenced before a justice of the peace and appealed to the City Court of East St. Louis, Illinois, wherein a judgment was rendered against the plaintiff for costs and he prosecutes this appeal.

On September 14, 1909, Henry O. Jones leased to the appellee the premises known as 1001 and 1003 South 16th street, being the two story frame building situated on lot No. 139 of Central Place, to be occupied as a saloon and dwelling from October 1, 1909, until October 1, 1911. Appellee agreed to pay as rent for said premises $1,322 in monthly payments of $55 each, the first payment having been made on the delivery of the lease, and the second on the first day of November, 1909, and the remainder on the first day of each succeeding month. The lease provided, “Said lessee agrees to surrender the possession of said premises to said, lessor upon the termination of the term above created, or upon the forfeiture of this lease as hereinafter provided; and further agrees during the occupancy of said demised premises, to maintain and keep the same in as good condition and repair as the same shall be upon taking possession thereof, natural wear, injury by fire or other inevitable accident excepted; damage by fire or other calamity rendering said premises untenantable shall terminate this lease—there shall be no abatement of said stipulated rent or any part thereof so long as such lessee shall retain possession of said demised premises, or any part thereof.” The lease was of a printed form and immediately following the description of the premises the following clause was inserted in typewriting, to wit: “It is understood and agreed that all inside repairs are to be made at the expense of said lessee, and all outside repairs at the expense of said lessor.” It is further provided in said lease as follows: “To allow the party of the first part free access to the premises hereby leased for the purpose of examining or exhibiting the same, or to make any needful repairs or alterations of said premises which such first party may see fit to make.” While the lease contains many other provisions the above are all that are necessary for the purpose of determining the questions herein made.

On the 9th day of October, 1909, Henry O. Jones assigned this lease to appellant. The building upon said premises was constructed of inferior material and in its erection it was so built that the east wall was out of plumb and remained so from the time of its erection until it was destroyed by fire on about February 20, 1911. On November 17, 1910, the building commissioner of Bast St. Louis served a notice on appellant and appellee under the provisions of the city ordinance, notifying the parties that the building was in an unsafe and dangerous condition, requiring immediate repair or removal, and directed that the building be braced and plumbed so that it would not be in danger of falling on the street. Shortly thereafter Jones, the owner of the building, caused iron rods to be run through the middle of it from east to west, in an attempt to make the building plumb; but this did not have the desired effect and the building continued out of plumb and in the bracing that was done some of the studding under a window were pushed off the foundation sill. It also appears from the evidence that several of the treads and risers were off of the stairway and that the roof leaked in one place. Several of the witnesses for appellee testified to having examined the building, that it was out of plumb, describing the fact that some of the studding were off of the foundation and stairway out of repair and that the building was not safe for habitation. Other witnesses for appellant testified, that while it was true the building was out of plumb, and otherwise out of repair, they did not regard it as being unsafe but that it was in about the same condition as when erected. The lower floor was occupied as a saloon and the upper floor as a living room by the tenants of appellee who, from time to time, subleased it of appellee. It appears that the building and saloon were not actually occupied by any one after about the first of September, 1910, but appellee had placed some saloon fixtures in the building which continued therein until about the 10th to 15th of December, 1910. Appellee paid the rent up to December 1, 1910, and then refused to pay any more because, as the agent says, the building was untenantable, and it is claimed by appellee that at times he could not unlock the front door or get into the building, and that the iron rods put in the building had not helped it any, and that the building was in considerable worse condition than it had been before the repairs were made.

The appellant assigns as error that the verdict is contrary to the law in the case, and the court also erred in rendering judgment on the verdict.

It is insisted by counsel for appellant that under the terms and conditions of this lease the appellee had no right to abandon the premises and refuse to pay rent; while, upon the other hand, appellee claims that the building was untenantable; that the landlord failed and neglected to put it in proper condition for accupancy and that he had the right to abandon the premises and refuse to pay the rent.

The solution of this question depends almost entirely upon the construction of the lease in question. The lease provides that the lessee “Further agrees during the occupancy of said demised premises to maintain and keep the same in as good condition as the same shall be upon taking possession thereof, natural wear, injury by fire or other inevitable accident excepted.” And it was further written in said lease that, “It is understood and agreed that all inside repairs are to be made at the expense of said lessee and all outside repairs at the expense of said lessor.” Appellee contends that these clauses are conflicting and that the clause inserted in typewriting should prevail over the printed clause. We think this is a proper rule of construction if they are in conflict. It is, however, a further rule of construction that effect must be given to all the clauses of the contract, if it can be done. The intention of the parties to a joint contract is to be determined by a construction of all of the provisions of the contract. Ingraham v. Mariner, 194 Ill. 269.

As we read this contract it provides, in the printed part thereof that the lessee agrees “To maintain and keep the same in as good condition and repair as same shall be upon taking possession thereof, natural wear, injury by fire and other inevitable accident excepted. ’ ’ If there was no other provision with reference to this matter then the lessee would undoubtedly be required ■to keep and maintain the building in the condition he received it, at his own expense, except as to natural wear, injury by fire and other inevitable accident. The provision written in the lease by the parties at the conclusion of the description of the premises, as we view it, merely provides who is to pay for these repairs. “It is understood and agreed that all inside repairs are to be made at the expense of said lessee and all outside repairs at the expense of said lessor.” This does not pretend to change the former provision as to who shall make such repairs but simply provides who shall pay for particular repairs when made. As we read the two clauses, they, when considered together, require the lessee to make the repairs and that the expense of all outside repairs are to be paid by the lessor. But it is claimed by counsel for appellee that appellant put a construction upon this contract by going and making the repairs, by putting a roof thereon, by straightening up the building when notified by the street commissioner so to do. The work done in straightening up the building should, as we think, be referred rather to the notice of the commissioner than to any provision of the contract. It is also true that this work and the repairing of the roof are permitted by the contract, the fourth clause of which provides, “To allow the party of the first part free access to the premises hereby leased for the purpose of examining or exhibiting the same, or to make any needful repairs or alterations of said premises, which such first party may see fit to make.” We do not see that there is any ambiguity in the provision of this lease or inconsistency in the clause referred to.

We are unable to find any covenant in this lease which requires the lessor to make the repairs that are here claimed and in the absence of such a covenant the landlord is not bound to make repairs: “The law is well settled that the rule of caveat emptor applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant.” Sunasack v. Morey, 196 Ill. 571; Smith v. McLean, 123 Ill. 210.

It is claimed by counsel for appellee that under the decision of Bissell v. Lloyd, 100 Ill. 214, that the appellant would be required to make the needed repairs to the building in question. We do not so understand that case. That has application simply to a building containing many rooms or apartments which are rented to different persons and portions of them controlled by the owner, under which circumstances it is his duty to keep up the general repairs of the whole building, as he has control of it, but an entirely different rule prevails where the whole of the premises are leased to one tenant. Payne v. Irvin, 144 Ill. 482. The lessee in this case undertook “To maintain and keep the same in as good condition and repair as the same shall be upon taking possession thereof, ’ ’ natural wear, etc., excepted. “If he undertakes to keep the house in as good repair as when he took it, fair wear and tear excepted, he is not entitled to quit upon its becoming uninhabitable for want of repair during the term, and the landlord is under no implied obligation to do any repairs in such case.” Taylor’s Landlord & Tenant, sec. 360. While it may be true that this building became more out of repair after the letting than at the time, yet the appellee knew its condition at the time, knew that it was out of plumb and could see that it was built of inferior material, and was doubtless rented at a lower price than it otherwise would have been. It was rented to tenants from time to time until about three months before the refusal to pay rent, and during that time the agent of appellee took several persons to it and endeavored to rent it to them but was unable to do so, and it is reasonable to infer that because of their inability to rent it that they came to the conclusion that it was uninhabitable and that they had a right to abandon it, but we think the contract itself provides what particular things would justify the appellee in abandoning the premises. The provision in the lease is, “Damage by fire or other calamity rendering said premises untenantable shall terminate this lease.” There is no claim here of any calamity or damage by fire until February 20th, and it seems to us that to justify the tenant in abandoning the premises they must have been rendered untenantable either by fire or some calamity. “If he (the landlord) covenant to repair before the term commences, it may be the tenant might refuse to enter upon the term until the repairs were made, but having entered upon the term and received possession, he can not abandon the lease and refuse to pay rent for the breach of any other covenant except for quiet enjoyment.” Wright v. Lattin, 38 Ill. 293; Rubens v. Hill, 213 Ill. 535.

The evidence in this case was admitted and the instructions of the court given upon the theory that under the provisions of this lease the landlord was bound to make the repairs, and if he failed to do so the tenant was justified in abandoning the lease, which theory we are convinced is erroneous and that much of the evidence admitted was improper and many instructions given erroneous, and that the verdict of the jury is not sustained by the law and the court ought not have rendered judgment upon the verdict, and the judgment of the court is reversed and the cause remanded.

Reversed and remanded.


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    Eagle Iron Works Company, Appellee, v. Franklin County Collieries Company and T. C. Keller, Appellants.
    1. Mechanics’ liens—weight of evidence. Where on a hill for mechanic’s lien, alleging that in pursuance of a certain contract complainant constructed machinery for hoisting and loading coal for defendant who refuses to pay the balance due thereon, a cross-bill is filed alleging the machinery was inadequate and not adapted to the purposes for which it was installed, a decree for complainant will be reversed where the evidence shows the machinery was imperfect and had to be replaced at considerable expense.
    2. Recoupment—where machinery furnished is not according to the contract. Where complainant files a bill for a mechanic’s lien on certain machinery constructed for defendant, the fact that defendant has received and used the machinery does not prevent it from recouping damages if the machinery was not built according to the contract.
    3. Mechanics’ liens—set-off and counterclaims. In an action to enforce a mechanic’s lien an owner is entitled to make any defense against the contractor by way of set-off, recoupment, or counterclaim that he could in any action at law.
    Appeal from the Circuit Court of Franklin county; the Hon. Enoch E. Nbwxin, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1913.
    Underwood & Smyser, for appellants.
    Hart & Williams and Moses Pulverman, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

The Circuit Court of Franklin county rendered a decree in favor of the complainant herein, and to reverse such decree the defendant prosecutes this appeal. On September 5, 1907, complainant filed its bill for mechanic’s lien in the office of the clerk of the Circuit Court of Franklin county) alleging that it was a contractor and builder and that on October 8, 1906, the defendant, Franklin County Collieries Company, entered into a contract with appellee for the erection of certain machinery upon the S. W. 14 of the N. E. 14 of section 19, T. 5 S., B. 2 E. of the third principal meridian in Franklin county, and that one Theodore C. Keller was at the time the owner of said lands and of a majority of the stock in said defendant corporation. The bill further alleges that in pursuance of said contract the complainant did erect for the defendants on said premises one pair of double pivoted self dumping cages, one dumping chute, one weigh hopper, one double deck shaking screen, one eccentric shaft, one twenty-five horse power engine, one four compartment receiving hopper, one bar screened with apron, slack hopper for mine run chute, one wagon chute, one bar screened with aprons, slack hopper for wagon chute; that the defendant Franklin County Collieries Company agreed to pay therefor $3,800, one-third when the machinery was shipped, one-third when erected and ready for operation, and the balance in 45 days thereafter. That the defendant on the 5th day of August, 1907, took possession of said machinery and has used the same ever since; that defendant has paid to complainant the sum of $500 upon said contract and that there is a balance due of $3,291, with interest. That on December 25, 1907, defendants filed an answer to said bill admitting that the defendant corporation entered into a contract with the complainant for the erection of said machinery but denies that the complainant built and completed the said machinery according to the terms of said contract, and avers that the machinery was planned and designed by the complainant for the purpose of caring for coal hoisted from defendant’s mine and that the complainant prepared all of the details of said work and assumed the responsibility therefor. That the complainant without any fault of defendants failed to complete such equipment according to the terms and conditions of said contract, and that the equipment furnished by the complainant was so inadequate and imperfect as to be incapable of use and that it would be necessary for defendants to remove such equipment and place new machinery therein. That the complainant by its said contract guarantied the material, workmanship and operation of the machinery to be first-class and that it was not in compliance with said guarantee, not adapted to the purposes for which it was erected and that by reason of the failure of complainant to comply with its contract in the erection of said machinery the defendant has been greatly damaged, and denies that the defendant is indebted to the complainant and asks that an account may be taken of the damages sustained by the defendant and a decree rendered against complainant for such amount, and denies thiit it is in any manner indebted to the complainant.

Thereafter the defendants filed a cross-bill in said cause alleging substantially the same matters as are set forth in the answer and asks the court to direct an accounting of the damages sustained by it and for a decree in its favor. Thereupon the cause was referred to the master in chancery to take the testimony, which was taken by the master and reported to the court at a later term. Thereafter the defendants procured a change of venue from the judges of said circuit. On December 15, 1910, the defendant entered a motion to amend its answer by averring that the complainant was a foreign corporation and not authorized to transact business or bring suit in Illinois upon contracts entered into in said state, and averring'that such contract was entered into in the state of Illinois. Objections were made to the allowance of said amendment and the matter was taken under advisement by the court. Afterwards on June 15, 1911, a stipulation was entered into and filed by the parties to this suit asking that the order for change of venue heretofore made be set aside and that the presiding judge, Honorable W. H. Oreen, decide the case upon the record as made and render such decree as in Ms judgment should be made therein. That afterwards on December 15, 1911, a similar agreement was entered into between the parties with reference to a hearing and decision upon the evidence that had been taken and reported by the master, and agreeing that said cause should be taken and determined by the Honorable E. E. Newlin, presiding judge.

It is claimed that the court erred in not dismissing complainant’s bill because the complainant was a foreign corporation and had not taken proper steps to authorize it to transact business in Illinois.

We are of the opinion that according to the facts as stated in the stipulation filed in tMs case the plaintiff does not come within the rule which proMbits foreign corporations from transacting business or exercising its corporate powers in this state.

Many errors have been assigned herein but under the view we take of this ease it is only necessary to consider the errors pertaining to the question of the right of complainant to recover the full amount of its claim, its failure to complete its contract according to agreement, the right of defendant to recoup damages, and the right of the court to dismiss defendants’ cross-bill. As the solution of these questions depends upon our view of the evidence, they will all be considered and determined together.

It is admitted that the contract upon which this action is based was prepared by the agents of the complainant, after consultation with the agents of the defendant corporation. In the negotiations leading up to the making of the contract, and in the performanee of it, George Parker represented the complainant and T. O. Keller the defendant corporation. Prior to entering into the contract Keller advised Parker that he desired to sink a mine upon the premises in question and wanted to make it of a capacity of two thousand tons, or more, in eight hours, and that he wanted cages, screens, dumps and other machinery of sufficient capacity and strength and durability to hoist and properly screen the coal and to bring it into a four compartment receiver hopper, preparatory to loading it. That he was not experienced in such matters of machinery and left the matter to Mr. Parker to determine what would and what would not be feasible to accomplish this purpose, and in pursuance and for the purpose of accomplishing the objects proposed by Mr. Keller, Mr. Parker prepared the contracts, specifications and details and represented that the machinery specified in the contract would be sufficient to accomplish the object sought to be obtained by Mr. Keller, and in the preparation of the contract Mr. Parker inserted a clause guarantieing the material, workmanship and operation of the machinery to be first-class. The real question here is, Was the machinery of the character, durability and quality contracted for, and was the machinery and its operation first-class 1

The evidence in this cause is quite voluminous and we will not undertake to consider it in detail. The chancellor did not hear the witnesses testify nor see them upon the stand but arrived at his conclusions in the same manner pursued by this court, by an examination of the record of the testimony. The complainant seeks to establish its cause of action by showing that the machinery in question was delivered upon the ground and put up and used by appellant in the hoisting and screening of coal, and introduced several witnesses who claim to have been present for a short time on two or three different occasions, who testified that the machinery appeared to be working all right upon those occasions, but we do not think that these witnesses made as careful an examination of this machinery as they should have done or that they even examined all of it. Their attention was confined principally to the screen, and it was developed by cross-examination of Mr. Parker, and some other of complainant’s witnesses, that there was some doubt in their minds about the machinery being of the proper capacity, strength and durability, or being properly placed; besides, at the time they examined the machinery the mine was not hoisting to exceed six hundred tons. Mr. Parker or any of his witnesses do not deny but what the screen clogged badly, that the drop caused a large amount of breakage in the coal, that the cages were weak, and in fact did not successfully dispute any of the particular defects claimed by the defendants. Mr. Parker says, £<I noticed the coal break in dropping into the cars, the drop caused a large amount of breakage. I think the screen is higher than necessary, probably thirty inches.” He admits that the coal clogged between the decks of the screen, but he thought that due to the size of the perforations. At all events he admits that the coal was not all properly screened.

We think the evidence in this case shows that the decree of the court is manifestly against its weight, as the evidence of several witnesses for defendant, many of whom worked with the machinery and were familiar with it, shows that the screen was located too high from the ground, that it produced an excessive drop and breaking, that it had too much pitch, that the coal ran rapidly across the screen without getting the dirt or smaller coal out of it; that when the coal was loaded upon the cars it was shown to contain a great deal of dirt, small coal that ought not to be there if properly screened; that the coal overflowed in the screen; that the eccentric rods used for driving the screen were too light, crooked, and that the design of the screen would not permit the use of straight rods which ought to have been used; that on account of the faulty construction the screen was out of repair very frequently and caused a great deal of loss of time by such breakage. The cages furnished were, as the evidence disclosed, weak; it became necessary to often repair, rivet and bolt them. Many of the witnesses say they were not fit to ride upon and that by reason of the light material that was used in the construction of the cages they were wholly unfit for the purpose of defendant. Some of the witnesses say the cages wobbled when they were riding upon them, some of the witnesses said they climbed up from the bottom rather than ride upon the cages. When the cages arrived, Jordan, the mine manager, condemned them before they were removed from the railroad cars and claimed they were too light but Mr. Parker said, “Give them a chance, they are plenty heavy enough;” but we think the evidence shows very clearly that they were not heavy enough to perform the work and by reason of getting out of repair frequently much time was lost in repairing them and the cages were finally set aside and other cages purchased to take -their place. Many other imperfections in the material furnished by appellee are pointed put, and, we think, fairly well sustained by the evidence. It develops that most of the machinery had been replaced with other machinery at a considerable expense. We are of the opinion that much of the machinery furnished by complainant was weak, defective and not adapted to the purposes for which it was purchased. While it is true as suggested by counsel for appellee, that a substantial compliance with a contract is all that is required, we believe that under the evidence as disclosed herein that complainant has failed to show a substantial compliance.

The fact that appellant received and used the machinery would not prevent it from recouping damages if the machinery was not built according to the contract entered into. Hyde v. Love Bros., 63 Ill. App. 43; O. H. Jewell Filter Co. v. Kirk, 200 Ill. 382.

While we doubt if the complainant has, by the evidence, as appears in this record, shown such a compliance with its contract as would entitle it to enforce a lien, yet as it appears from the answer and the cross-bill filed by the defendant herein, that they are seeking to recover damages for failure to comply with the contract, we are disposed to remand this case for another trial, as it is provided by section 27 of chapter 82 of Hurd’s Revised Statutes: “The owner shall be entitled to make any defense against the contractor by way of set-off, recoupment or counter claim that he could in any action at law, and shall be entitled to the same right of recovery on proof of such in excess of the claim of the contractor against the contractor only. * * * And in event that the court shall find in any proceeding in chancery that no right to a lien exists, the contractor shall be entitled to recover against the owner as at law, and the court shall render judgment as at law, for the amount which the contractor is entitled, together with costs in the discretion of the court.”

It is disclosed by" the evidence in this case that the defendant has retained possession of and is using a portion of the machinery furnished and because of this fact and of the claim of the defendant for damages the case will have to he remanded for another trial had in accordance with the views herein expressed.

We are further of the opinion that the court erred in dismissing defendants’ cross-bill.

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

Reversed and remanded.


text:
    Abbie Hobson, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    1. Cabbiebs-—prima facie case. Evidence that plaintiff was a passenger on defendant’s car when an accident happened and injury resulted to her, is sufficient to make a prima facie case.
    2. Cabbiebs—evidence. Where the evidence is undisputed that plaintiff was thrown violently against the seat in front of her so as to injure her side and cause her to become sick, a verdict finding defendant guilty of negligence will be sustained though defendant’s witnesses testified the car came to a slow and easy stop.
    3. Evidence—testimony of physician who examined plaintiff a few days before the trial. Testimony of a physician, who has attended plaintiff for several months, regarding her physical condition a few days before the trial, is properly admitted.
    4. Evidence—testimony of physician as to cause of injury and the pain suffered. Testimony of plaintiff’s physician as to the cause of the injury and the pain suffered is not prejudicial when corroborative and accumulative of facts and conditions established by evidence of defendant.
    5. Damages—when verdict is sustained. Where plaintiff, a healthy woman able to carry on her business, teaching school and vocal music, is injured in an accident on defendant’s electric railway so that she is nervous and unable to teach school without great exertion and exhaustion, a verdict for $3,110.00 is not so large as to show passion, prejudice or disregard of the evidence by the jury.
    6. Continuance—when not error to deny motion for. Where plaintiff is allowed at the close of her evidence, to amend her declaration by increasing the ad damnum from $3,000.00 to $5,000.00 there is no error in refusing to continue the case, where defend* ant’s affidavit is uncertain and indefinite and shows no particular reason why additional preparation is required.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    Rehearing denied May 29, 1913.
    Richard Yates and H. C. Dillon, for appellant; George W. Burton and George W. Black, of counsel.
    Warnock, Williamson & Burroughs, for appellee.
   Mr. Presiding Justice McBride

delivered the

opinion of the court.

A trial was had in this case in the Circuit Court of Madison county, which resulted in a verdict for plaintiff and defendant appeals.

On September 16, 1911, appellant was engaged in operating an electric railway from Springfield to Granite City, Illinois, and on that date appellee was a passenger, for hire, of appellant, from Staunton to Edwardsville. Appellant’s train consisted of two cars operated by electricity. About two miles south of Hamel on said road the trolley wire was broken and down for a distance of some three hundred to four hundred feet; the ends of the wires had been picked up and tied to a pole on the side of the track and tied in such manner, as some of the witnesses described it, as to form an angle, and extended across the track. Upon arriving at the place of the broken wire the conductor and motorman concluded that they would coast across this break in the wire and in attempting to do so the trolley wire that had been tied up, in some manner struck the stove pipe projecting out of and above the roof of the rear end of the car communicating electric current to the pipe and to the stove in the car and caused a flash of light in the rear end of the car. Very shortly thereafter, if not immediately, as described by the witnesses of the appellee, the car gave a lurch and was suddenly stopped and the appellee was violently thrown on to the back of the seat in front of her, causing the seat to turn over and in this manner appellee was injured in the right side, which, as claimed by her, injured her liver, dislocated her kidney and caused her to vomit and for a while, at least, she was very sick.

There is a conflict in the testimony of the witnesses for appellee and appellant as to the speed at which the car was being operated, and the manner in which it stopped. Appellee’s witnesses say it was operated at a good rate of speed and all of a sudden stopped very abruptly, and others say it stopped suddenly with a great crash, while appellant’s witnesses testified the car was running slowly, that it stopped in an easy manner and that there was no crash or jerking connected with the stopping of the car.

It is disclosed by the evidence that the appellee was engaged in teaching.school; that she had graduated in music and was preparing herself for a music teacher; that the injury she received so affected her breathing as to partially disable her from singing as she had prior thereto, and that she was weak, nervous and unable to perform her duties as she had formerly done and that such injuries were permanent. Doctor Wall, at the suggestion' of counsel for appellant, was permitted to and did treat the appellee for several weeks, but later on Doctor Wall was discharged and Doctor Ferguson, family physician of appellee, was called in and treated her up to the time of the trial, and there is some conflict in the evidence of the physicians as to her permanent injury.

It appears from the evidence that prior to this injury the appellee was a stout, healthy woman and able to endure a great deal of work, and as she says, she was able to sing almost an unlimited time without being tired but after the injury she was nervous, weak and unable to perform her daily work of teaching or singing, except with great effort.

The declaration, after the formal averments, alleges that, “Two miles southwesterly from said station of Hamel aforesaid, the said car in which she was so riding then and there operated by and in control of said defendant, was violently and suddenly stopped, by means and in consequence whereof the plaintiff was then and there thrown to, upon and against portions of said car, towit, seat and floor, by means and in consequence whereof she was stunned, wounded and crushed, the ligaments and muscles of her abdomen were bruised and strained and certain organs of her body, towit, her liver and ovaries were bruised and injured to such an extent that the same and also her right kidney were permanently injured and the functions thereof impaired, and her body in and about such organs was then and there otherwise wounded and crushed and also by reason of the shock of so being thrown and injured, her nervous system was and continues to be greatly deranged and shattered,” and then alleges that by reason of such injury she was sick, disordered and permanently injured, and suffered great pain, and continued to be hindered and prevented from attending to and transacting her usual affairs of business, and has especially been hindered and prevented from continuing and completing her education in vocal music, and of gaining a livelihood by means thereof.

At the conclusion of the trial a verdict was rendered in favor of plaintiff for $3,110.

It is claimed by appellant that the appellee has failed to prove the allegations of her declaration, that she was thrown and injured by reason of the violent and sudden stopping of the car, by a preponderance of the evidence, and that because of such failure she is barred from a recovery herein. There is a conflict of evidence upon this question. Appellee’s witnesses, some of them say, “It was going at a good rate of speed and all of a sudden stopped very abruptly;” another said, “The lights went ont and the ear stopped as short as it could; we were all thrown hither and thither.” Another witness says, “The car stopped suddenly, with a great crush.” And appellee says, “All of a sudden there was an awful jerk and I had a sensation of a gone feeling and I didn’t know any more until they were giving me water, or something. ’ ’ A witness for appellant stated, “It stopped in an easy manner, easy way.” The motorman says, “Car drifted slowly, four or five miles an hour, very slow. I brought car to a stop by applying air; car just came down to an ordinary stop. An ordinary stop is to apply your air and release it just as the car stops motion and leaves no jar.” The conductor said, “The car coasted under this trolley break without any power, speed probably four or five miles . an hour, coasted about four hundred feet, four pole lengths. Car then came to a stop in the usual way, easy like way. Not enough to jar any one.” While it is not disputed by counsel for appellant that the testimony of witnesses for appellee does show that the car stopped suddenly, yet he says it is not shown by a preponderance of the evidence, that the witnesses for appellant were equal in number to those of appellee and had superior knowledge upon this question, they were not so much excited as witnesses for appellee and for this reason their testimony should be accepted in preference to that of appellee. This is a question purely within the province of the jury. They were the judges of the weight to be given to the testimony of the several witnesses, and this court has no power to disturb their verdict upon this ground, unless it appears that such verdict was manifestly against the weight of the evidence. So far as it is disclosed by this record, the witnesses had equal opportunities to see and know what occurred, and in addition to this, the evidence is undisputed that the appellee was thrown so violently against the seat in front of her that it caused the seat to turn over, and she was thrown against the seat with sneh violence as to injure her side and cause her to vomit and become very sick, and we cannot say that the verdict of the jury should be disturbed for this reason. It certainly appears from this evidence that appellee was a passenger, that an accident happened and injury resulted, which of itself is sufficient to make a prima facie case. It is said in the case of Chicago City R. Co v. Carroll, 206 Ill.323: <£ ‘By the law they [railroads] are bound to the utmost diligence and care, and are liable for slight negligence. Proof that defendant was a passenger, the accident, and the injury, make a prima facie case of negligence. This is done, and the burden of explaining is thrown upon the plaintiffs.’ The rule above quoted has, from the time of its announcement to the present time, been adhered to by an unbroken line of decisions in this State.”

It is next contended that the court erred in admitting much of the testimony of Doctor Ferguson. Counsel takes the position that because an examination of appellee'was made but a few days before the trial that practically all of his testimony should be excluded, under the doctrine laid down in the case of Chicago & E. I. R. Co. v. Donworth, 203 Ill. 192. The facts in that case developed that the patient was not at that time under the treatment of the physician and never had been under his care, and that the examination was made three years after the injury, and solely for the purpose of testifying in that case, and that in his opinion that the hearing of appellee was injured, but such opinion was obtained principally by a test of holding a watch at some distance from the ear of the patient and then asking him if he heard the ticking of the watch. This case, however, is easily distinguished from that one, in this, that Doctor Ferguson had been treating the appellee for more than three months prior to this trial, and at least two months before this suit was commenced, and as we read his testimony, such history of the case as was given by Doctor Ferguson was obtained from her when he first commenced treating her, and in the regular course of treatment. It is true that only a few days before the trial he made a physical examination of the appellee and at that time discovered that her right kidney had been displaced and was what he termed a “movable kidney;” but this was not ascertained from anything that she said or did but from the examination that he made and the conditions that he found to exist. We think the evidence of Doctor Ferguson, under the conditions here shown to have existed, comes within the rule laid down by our Supreme Court in the case of Chicago City Ry. Co. v. Bundy, 210 Ill. 39, and City of Chicago v. McNally, 227 Ill. 14.

It is further argued by counsel that the declaration of appellee to Doctor Ferguson as to the cause of the injury, and the pain suffered, were very improper and tended to enhance appellee’s damages. An examination of the testimony of Doctor Wall, witness for appellant, gives fully the statements made by appellee to him while he was treating her, as to the cause of the injury, and that the principal symptom was pain, which he learned from her, and that he treated her for these pains from time to time; and while he says that he discovered no injury to the kidney or to the organs of the voice, he does, however, give many of the symptoms and conditions that is said by Doctor Ferguson to have existed. The testimony of Doctor Wall was offered by appellant and is fully corroborative as to the symptoms given by Doctor Ferguson, and as the testimony of Doctor Ferguson was corroborative and accumulative of facts and conditions which were established by the evidence of appellant, we are unable to see how the error, if it were such, could be prejudicial to the appellant. Greinke v. Chicago City Ry. Co., 234 Ill. 564.

It is insisted by counsel that the damages awarded to appellee in this case were excessive. The appellee, prior to her injury, was a stout, healthy woman, able to endure a large amount of work and to carry on her business of teaching school and vocal music with ease and comfort to herself, and enjoyed the pleasures of health without even a day’s sickness to mar it, but since the injury she has been depressed, nervous, unable to teach her school without great exertion and exhaustion, and if the testimony of her physician, her mother and herself is to be relied upon, as to her condition, then we are not able to say'that the jury was not warranted in finding a verdict for the amount that it did, and as has often been said by the court, this is a matter largely within the discretion of the jury, and unless the amount determined was of such magnitude as to show passion, prejudice or disregard of the evidence by the jury, then the court would not be warranted in disturbing it, and we do not feel that the verdict should be disturbed on that account.

Again, it is said that the court erred in permitting appellee to amend her declaration by increasing the ad damnum from $3,000 to $5,000 at the close of plaintiff’s evidence, and refusing to continue the case upon the affidavit made by appellant. Before the commencement of the trial appellee was permitted to amend her declaration by adding the words, “and also her right kidney,” thereby adding to the injuries set forth in her declaration. This amendment was agreed to by counsel for defendant, and the affidavit filed by them relates, as we take it, solely to this amendment and not to the increasing of the ad damnum, as they say they were “not prepared to meet any serious trouble to the kidney, and especially is not prepared and could not prepare through the exercise of all due diligence to meet the charge of injury to the kidney to the extent involved in this last said amendment to the declaration.” We are unable to see any reason why it would require any more preparation to meet a charge of the injuring of the kidney to the extent of $5,000 than of $3,000, especially when no particular reason is shown by the affidavit why such additional preparation is required, and we think the affidavit is otherwise uncertain and indefinite and that the court was fully warranted in refusing to continue the case.

It is further contended that the court erred in refusing appellant’s instructions Nos. one, four, and five. While we are not prepared to say that these instructions lay down the law correctly but if they do then the propositions announced in these instructions are covered by the given instructions Nos. eight and ten. We are of the opinion that the court was liberal in the instructions given to appellant.

After a careful examination of this record, and the law, we are not able to say that any reversible error was committed in the trial of this case, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Higbee

text:
    Fred Grimm, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Evidence—when exclusion of photographs of the scene of an accident proper. It is proper to exclude photographs of the scene of a highway accident on an interurhan road where at the time of the accident there was about four feet of snow on the ground and the pictures were taken after the snow had disappeared.
    2. Appeals and errors—harmless error. Error alleged by defendant because of the refusal of an instruction as to the measure of damages need not be considered where defendant admits that the amount of the verdict is justified.
    Appeal from the Circuit Court of Madison county; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    Williamson, Burroughs & Ryder, for appellant.
    Geers & Geers, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought suit against appellant for injuries to his wagon, harness and horses, which were struck by one of appellant’s cars and recovered a judgment for $150, from which this appeal is prosecuted.

The declaration alleged that appellant was operating an electric ear over its railway on the public highway, between East St. Louis and Edwardsville; that appellee was the owner of four horses, a wagon and certain harness used therewith, which horses and wagon were then and there being driven with due care by a servant of appellee, along said road and near the railroad of appellant; that appellant so carelessly, negligently and improperly drove and managed one of its cars that the same struck with great force and violence against said horses, wagon and harness, injuring the same and greatly depreciating the value thereof.

On February 20, 1912,' at about 9:30 p. m., two of the employes of appellee, Wenzell and Dressell, were returning to Collinsville from East St. Louis, with a four horse team attached to a covered moving van along a highway known as the Collinsville-St. Louis road. The highway runs substantially east and west, and on the south side of it appellant operates its electric railroad. The night was cold and stormy and at the time of the injury the wind was blowing hard and the snow was in places from four to five feet deep entirely covering the car tracks as well as the balance of the highway. In the course of the journey, at a point in Madison county, Wenzell turned to the back end of the wagon, when his attention was called to the reflection on the back curtains caused by the headlight of one of appellant’s cars approaching from the east. He at once concluded that the wagon was too close to the track and returning to the front of it snatched the lines from Dressel, to whom he had handed them, and tried to pull the team away from the track, but it was too late to prevent a collision.

It was claimed by the men in charge of the van and they so testified on the trial, that snow was blowing from the northeast in which direction they were traveling, making it difficult for them to see; that the car made no noise as it approached and that no whistle or gong was sounded; that the car passed the horses, but crashed into the back wheel of the wagon, overturning it and throwing down three of the horses.

On the other hand there was proof on the part of appellant to the effect that the snow came from the northwest, clogging up the motorman’s window, making it difficult for him to see out; that the car was proceeding at a rate of speed not exceeding ten miles an hour; that warning signals were given by blowing the whistle and ringing the gong at the nearest crossing, the distance to which from the place of the injury, does not clearly appear; and that the motorman continued to sound the gong at intervals of two or three seconds; that appellee’s lead team had been turned across appellant’s track and one of the men was attempting to lead them across to the south side of the track; that the car ran into this team and the injuries complained of were caused by that collision.

Appellant complains that the court erred in its rulings in regard to the evidence and in refusing to give one of its instructions. Also that the verdict and judgment are against the weight of the evidence.

The complaint of appellant in regard to the rulings on the evidence, was that the court refused to admit certain photographs of the scene of the injury for the reason that at said time the ground was covered with snow, while at the time the pictures were taken the snow had disappeared. We are of opinion that the court properly refused to permit these photographs to be admitted in evidence for the reason that they might have been misleading to the jury. An inspection of them discloses inequalities in the ground and differences of level between the highway and the railroad track, which might have been wholly obliterated by a covering of snow of the depth of that which occurred on the night in question. The jury might have considered it negligence for one to drive upon or close to appellant’s track under conditions shown by the photographs, while the same jury might have properly found that it was not evidence of negligence that one should drive close to or even upon the track in a driving snow storm in the night time, when the ground was already covered to the depth of several feet.

The only one of appellant’s instructions which was refused, related to the measure of damages, but as counsel for appellant in their argument, admit that the permanent injury to appellee’s horses justified the amount of the verdict, and that in view of that fact the refusal to give the instruction did not constitute reversible error, we need not give the matter any further consideration.

The real substantial question presented to us to determine is whether the judgment in this case should be sustained under the facts disclosed by the record. Two witnesses, the two drivers, testified to the facts connected with the occurrence for appellee and they both stated that the horses were not on the track and that the car struck the wagon. Two witnesses for appellant, a passenger, who was standing near the front of the car, and a motorman, testified to seeing the collision and they both said the car struck the lead team of horses. The conductor and two of appellant’s section men, who were on the train at the time, testified to facts which on the whole seemed to corroborate the claim of appellant that the horses were struck by the car, although portions of their testimony are not inconsistent with the claim of appellee that the wagon, and not the horses, was struck. Some of the witnesses for appellant, testified that appellee’s drivers were drunk or under the influence of liquor at the time of the injury. This was denied by the two drivers, who swore that they had had no liquor to drink that day, except, a glass of beer apiece, which they took with a sand-wick, early in the evening at East St. Louis. It is admitted hy counsel for appellant that as an abstract legal proposition, appellee’s servants had a right to be upon appellant’s track, that is they were not trespassers there. But it is claimed that they were guilty of negligence in being there at the time and in the manner they were and that appellant was guilty of no negligence tending to cause the collision. These were questions of fact however for the jury, which was properly instructed and while the case is a close one,- yet we cannot say from a careful consideration of all the proofs, that the verdict of the jury was so manifestly against the weight of the evidence as to demand a reversal of the judgment for that reason.

Judgment affirmed.


author: Mr. Justice Thompson

text:
    Edna Gola, Administratrix, Appellee, v. Missouri & Illinois Coal Company, Appellant.
    1. Mines and miners—when mule shown to be unruly. The evidence establishes that a mule in a mine was wild and unruly when no witnesses testify for defendant and plaintiff’s witnesses, including the driver of the mule and the boss driver, testify that the mule was fast and sometimes fierce and could not always be depended on.
    2. Mines and miners—when risk of disposition of mule not assumed. It cannot be said that a mule driver was acquainted with the disposition of a certain mule and assumed the risk of working where she was being used, where it appears that such driver had never driven her, and it is not shown that he knew or had an opportunity to know that at times she could not be controlled.
    3. Mines and miners—when company chargeable with knowledge of disposition of mule. A company is chargeable with knowledge of the wild disposition of a mule used in its mine where she had been used for a year and a half and the boss driver knew of her disposition.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 23, 1913.
    Rehearing denied May 28, 1913.

      Barthel, Farmer & Klingel, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee as administratrix of the estate of her deceased husband Abe Gola, brought this suit against appellant the Missouri and Illinois Coal Company, to recover damages for alleged wilful negligence causing the death of appellee’s intestate.

The deceased was a mule driver employed in appellant ’s mine. The declaration containing but one count charged that the defendant negligently provided and furnished one, Joe Schnolia, also a mule driver in said mine, with a mule “Flora” which was wild, untrained, unruly and unmanageable and therefore unsafe and dangerous to servants working in said mine and that said mule was liable to become unmanageable and travel at a rapid and violent rate of speed when its driver was approaching the parting and cause the cars drawn by it to run against and violently collide with other cars being on said parting and so injure servants while there in discharge of their duties, all of which defendant well knew or by the exercise of ordinary care should have known, and that on the day of the accident which caused the death of plaintiff’s intestate the deceased and the said Joe Schnolia were engaged, each with a mule, in bringing loaded cars of coal to the parting or switch.

That deceased had preceded Schnolia to the parting with his trip of loaded cars and that said Schnolia in following with his trip of cars was unable to control the mule “Flora” which he was driving and that said mule ran rapidly and violently with said cars and so caused the said cars to violently collide with the ears brought to the parting by deceased, while the deceased with due care for his own safety was attempting to couple his cars with other cars on said parting, whereby deceased was caught between the cars and so crushed and injured that he died.

Defendant filed the plea of not guilty. The case was tried by the jury and the jury returned a verdict against the defendant for $2,000. A motion by defendant for a new trial was overruled and judgment entered on the verdict and the case comes here on appeal from said judgment.

The errors assigned may all be considered under the assignment which questions the sufficiency of the evidence to support the verdict and judgment. If the evidence is not sufficient it was error for the trial court to refuse the peremptory instructions asked. The only question presented by the record or by argument of counsel is one of sufficient evidence, tested by the rules of law.

There was no conflict of evidence. The only witnesses testifying were those introduced by the plaintiff.

The most vital question in the case concerned the character of the mule “Flora,” what was her disposition, was she unruly and unmanageable and untrained as claimed by plaintiff? On this point the witnesses all agree that she was a “fast mule.” That she could sometimes be controlled by her driver and sometimes she could not.

Schnolia, who was driving the mule “Flora” at the time of the injury testified that he had been driving that mule about a year and a half. That she was a fast mule and would not mind. That there was an incline of the track toward the parting which he was approaching with his trip, at the time of the accident. ■That in driving down slopes or inclines, the way cars are held back is by the driver placing one foot on the tail chain and one hand on the rump of the mule, while the other hand is placed against the car and thus a “break” is formed by which the car is checked or stopped. That the mules are trained to push back or hold back when the driver puts his hand on their rump.

That on this particular day and trip he was unable to control the mule. That he placed his right hand on the car and his left on the mule in the customary way and tried to stop her, but could not. That as he neared the parting he saw some one signal him to slow up and he tried to hold the mule back but could not, the mule kept going fast. That he hollered “whoa” several times but the mule would not stop and when close to the rear of Abe Gola’s trip of cars he unhooked the mule, and got off the car and tried to hold the car by pushing back on it but was unable to check it and his cars bumped into Gola?s ears and injured Gola.

The evidence shows that the mule “Flora” was nervous, inclined to be fast, and at times unmanageable. The boss driver, who ought to have known and whose duties required that he should know if the mule was a safe, reliable animal, testified that sometimes she could be depended on and sometimes she could not, that she would not hold back at times and was pretty fast, sometimes pretty fierce.

When carefully considered the evidence clearly establishes the bad character of the mule as to disposition and unmanageableness as charged in the declaration.

The proof being sufficient on this point it only remains to determine whether deceased was acquainted with the disposition of the mule, and knowing the same, assumed the risk of working at the parting where the mule was being used to haul cars.

It appears from the evidence that the deceased never drove that mule, nor is it shown by the evidence that he knew or had opportunity to know that at times she would not be controlled. This knowledge is chargeable however to the appellant through the acquaintance of the boss driver with the mule and the length of time the mule was used in the mine. Nor can it be said on this record that deceased was guilty of contributory negligence when he attempted to couple the cars under the circumstances shown by the evidence. It was the practice and custom for the flagman at the parting to signal all incoming drivers if there was anyone at the parting liable to be injured and have such incoming driver slow up or stop. The flagman was on duty and signaled Schnolia to slow up and the driver of “Flora” was unable to control her. G-ola knew of the custom and doubtless relied on the flagman to warn incoming drivers to slow up or stop and on Schnolia to obey the signal and control his mule.

We cannot say the deceased assumed the risks of danger from the bad disposition of the mule, nor can we say from the evidence the deceased was not in the exercise of due care for his own safety. The jury found the facts in favor of appellee and the trial judge approved the verdict and we would not be authorized to reverse the ease unless we found that the verdict and judgment were manifestly against the weight of the evidence and this we cannot do. We think the evidence sufficient to support the judgment and the court did not err in refusing to give the peremptory instruction asked by defendant.

The judgment is therefore affirmed.

Affirmed.


author: Me. Justice Thompson

text:
    W. B. Hamilton, Appellee, v. The Century Manufacturing Company et al., Appellants.
    1. Judgments—joint. A joint judgment against codefendants in an action for breach of warranty on a motor buggy purchased by mail order will be reversed where the evidence shows that the contract was made with only one of the defendants, though only the general issue is pleaded.
    2. Pasties—joint liability. While the statute relieves plaintiff from showing joint liability in the first instance, yet in the absence of a plea denying joint liability, the defendant may present such defense under the general issue.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventek, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 23, 1913.

      C. E. Pope and H. F. Driemeyer, for appellants.
    Johhson & Johnson and W. L. Coley, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

W. B. Hamilton, plaintiff below brought this suit against The Century Manufacturing Company, a corporation, The Century Manufacturing Company, a corporation doing business as the Winner Manufacturing Company, Alfred N. Schulein, Solomon Schulein, and J. J. Connors, defendants, claiming that the defendants were jointly liable for damages for an alleged breach of warranty of a motor buggy he purchased by mail order from the Winner Manufacturing Company of East St. Louis.

Hamilton lived at Lenox, Georgia, and the motor buggy was shipped to him at that place, by the Winner Manufacturing Company, and received by him there, but the buggy could not be made to run satisfactorily and appellee claims it did not run as guaranteed by said company in their “advertising literature” sent him and on the representations of which he was induced to make the purchase.

To the declaration the defendants filed the general issue only. A jury was waived and the case was tried by the court.

The court found for the plaintiff and rendered judgment on finding for $428.50 and costs.

Two grounds for reversal are urged by appellant: First, misjoinder of defendants. Second, insufficient evidence.

If the first objection is found to be well made there will of course be no need to discuss the evidence re-, lating to the alleged contract of warranty.

This action is ex contractu and must be governed by the rules of law which apply to such cases.

In actions ex contractu against two or more defendants it must appear from the evidence that there was a joint contract by all the defendants, otherwise there can be no recovery against any one of them. This is the general rule. Kingsland v. Koeppe, 137 Ill. 344; Pluard v. Gerrity, 146 Ill. App. 224.

Appellee while recognizing this general rule of law contends that appellants are precluded from the benefits of such rule because they failed to file either a plea in abatement or a verified plea in bar denying joint liability.

Appellee to sustain this contention relies on section 54 of the Practice Act (chapter 110, R. S. 1911), which provides: “In actions upon contracts, expressed or implied, against two or more defendants, as partners, or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants or their Christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar, denying the partnership, or joint liability, or the execution of the instrument sued upon, verified by affidavit.”

In construing this section our courts have held that while it relieves the plaintiff from showing joint liability in the first instance still in the absence of a plea denying joint liability, the defendant may under the general issue present such defense.

It has also been held that the defendant without filing a plea denying joint liability, may successfully claim such defense where it affirmatively appears from the evidence that no joint liability existed under the contract sued on. United Workmen v. Zuhlke, 129 Ill. 298; Powell Co. v. Finn, 198 Ill. 567; Heidelmeier v. Hecht, 145 Ill. App. 116.

Appellee contends that the affirmative evidence alluded to must come from the defendants. We do not so understand the law. If it appears affirmatively from the evidence of the plaintiff alone, it is sufficient to defeat a joint recovery. Could it be held in a suit against several defendants on a contract signed by one only and where the plaintiff’s evidence shows such a contract, that all defendants sued would be liable, because they failed to plead nonjoinder! Affirmative evidence, from what ever source showing no joint liability is clearly sufficient to defeat a recovery.

Hence it follows as a matter of law from repeated holdings of the courts of this state, that where it appears from the evidence of either plaintiff or defendants, even on the plea of general issue alone, that the defendants sued were not jointly liable, a judgment against all defendants jointly cannot be sustained.

In this case it affirmatively appears from the evidence introduced by plaintiff to sustain his action that his contract was with the Winner Manufacturing Company alone. He made his contract of purchase of the motor buggy through correspondence with the Winner Manufacturing Company, all the advertising matter which is claimed to constitute the warranty of the motor buggy was sent out by the Winner Manufacturing Company.

The record is absolutely barren of any facts showing participation or interest in the sale by any of the defendants except the Winner Manufacturing Company. It alone if any one is liable under that contract, according to the evidence.

Under such a showing, the judgment in this case, against all of the defendants cannot be sustained.

We refrain from discussing the sufficiency of the evidence concerning the alleged warranty, for the reason a retrial may develop other or different facts.

For the error in rendering a joint judgment against all of the defendants, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.