author: McCulloch, J.

text:
    John W. Corrington v. James C. Corrington et al.
    1. Probate jurisdiction—Executor’s account.—Appellant, as executor, filed his account in the county court, to the approval of which appellees filed objections in regard to certain sales of real estate. The only question before the court in reference to these sales was whether or not appellant, as executor, had committed a devastavit by selling the lands at an undervaluation when he might have sold them for more. Held, that a court of probate had jurisdiction to inquire into this question.
    2. Liability of executors.-—When executors have acted with reasonable diligence and an honest desire to do their duty faithfully, a mere error of judgment, in what was fairly matter of judgment or opinion, should not make them liable merely because subsequent events have shown they did not pursue the wisest course. Bat, on the other hand, they must be held to that degree of diligence which men ordinarily use in the management of their own affairs. The court is of opinion that the evidence in this record fails to show that appellant has failed to ex:reise that reasonable care, either in the sale of the land or in the matter of rentals.
    Appeal from the Circuit Court of Morgan county; the Hou. C. Epler, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Ketcham & Hatfield, for appellant.
    Messrs. Brown & Kirby, and Mr. O. P. Thompson, for appellees;
    that the county court exercises equitable jurisdiction in the adjustment and settlement of claims against estates, cited Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 203; Pahlman v. Graves, 26 Ill. 405; Moline Water Power v. Webster, 26 Ill. 234; Wilson v. Kirby, 88 Ill. 566.
   McCulloch, J.

Appellant, John W. Corrington, as executor of the last will and testament of his father, Joel Corrington, deceased, filed his account in the County Court of Morgan county, to the approval of which appellees, Wesley W. Corrington and James C. Corrington, filed objections. Upon a hearing in the county court, certain of these objections were sustained and appellant took an appeal to the circuit court.

By the terms of the will, after certain portions of the testator’s real estate had been disposed of, the executors therein named were directed to make sale of the residue in the time and manner they might deem best for the interest of his heirs and to distribute the proceeds equally between his six children therein named, including appellant and appellees.

The other executor named in the will failed to qualify, and appellant took upon himself the execution of the trust.

In the account rendered May 21, 1883, appellant charged himself with a balance in his hands at the time of a former report, rendered March 19, 1883, of $4,181.52; rent of farm for 1882, $375; proceeds of sale of 79 and 64-100 acres, $2,-389.20; proceeds of sale of 195 and 36-100 acres, $5,360.80. In his report of March 19, 1883, he had charged himself with rent of the farm for the year 1880, at $300, and for the year 1SS1, at the rate of $375. In a former report, filed July 16, 1881, appellant liad taken credit for the sum of $422.39, for taxes paid upon the testator’s land. This sum had' been carried forward in his subsequent reports to’his credit.

Several exceptions were filed to the reports of March 19, and May 21, 1883, three of which were sustained by the circuit court, namely., the third, fourth, and fifth.

The third exception is to the effect that appellant had failed to report the collection of a reasonable amount of rent for the use of the real estate of the testator, for the years appellant had control of it. The fourth is to the effect that appellant had reported a sale of all the real estate of said testator,"to appellant’s two sons, taking therefor a snm far less than the actual value of said lands.

The fifth is to the effect that the executor had charged the estate with the payment of taxes on said lands, which were paid in the lifetime of the testator. The proof shows these taxes to have been paid by appellant in the lifetime of his father. If he had any claim against the estate on account of such payment, he should have presented it for probate as required by the statute. R. S. Chap. 3, Sec. 72. This exception was therefore properly sustained.

The circuit court found that there belonged to said estate, one hundred and ninety-five and 36:100 acres of inclosed land, suitable for tillage and pasturage; that the fair and reasonable rental value of the same, which might have been obtained by the exercise of reasonable care and diligence, was $3.50 per aere, making a total of $1,841.28 for the three years, whereas appellant had charged himself with only $1,050 for that period. He was therefore ordered to charge himself with $791.28 additional on account of rent.

The court further found that the fair and reasonable value of the seventy-nine and 64-100 acres reported by appellant as sold to his son, J. B. Corrington, and for which it could have been sold by the exercise of reasonable care and diligence, was forty dollars per acre, making a total of $3,185.60, and that he had charged himself with only the sum of $2,389.20 on account of said sale. He was, therefore, ordered to charge himself with $786.40 additional on that account.

The court further found that the fair and reasonable price for the one hundred and ninety-five and 36-100 acres reported sold by .appellant to his son, W. W. Corrington, was $45 per acre, making the total of $8,791.21, and that he had charged himself with only the sum of $5,860.80. He was, therefore, ordered to charge himself with $2,932.40 on that account.

Brom this decree, so made, this appeal is prosecuted. The circumstances attending the two sales of the land by appellant to his sons are not altogether above suspicion. Nothing was paid down, but each purchaser gave his note to appellant individually for the full amount of the purchase money, payable twelve months after date secured by mortgage upon the premises sold. Appellant says he loaned the money to his sons to make their purchases, and then took mortgages back upon tile premises sold to secure these loans, Although these notes were dated March 1, 1883, appellant did not, in his report of March 19, 1883, report the money in his hands. If the money was actually loaned to the sons to make the purchase, it ought to have come back immediately into appellant’s hands as executor, upon his making the deed under the power contained in his testator’s will. But he did not report it until May 21, 1883, when he got ready to make distribution, at which time he reported the sales aa cash sales.

Mo attempt has been made to question the validity of the sale, but on the contrary, by their attempt to call upon the executor to account for the full value of the lands, appellees would seem to have affirmed the sale. The only question before the court below in reference to these sales, was whether or not appellant as executor had committed a devastavit by selling the lands at an undervaluation when he might have sold them for more.

It is first objected that the probate court had no jurisdiction to inquire into this question, but that appellees’ proper remedy was in a court of equity. By the sale of the land as well as by the terms of the will itself the real estate directed to be sold was converted into personalty. Rankin v. Rankin, 36 Ill. 293. If sold for less than its value when more might have been had for it, this would have amounted to a waste or devastavit of the estate. Lomax on Executors^ Ch. 4, Sec. 3. It was, therefore, within the province of the court of probate to correct the account by charging appellant with the value of the property sold. Wadsworth v. Connell, 104 Ill. 369. This objection is, therefore, not well taken.

The principle of law applicable to this case is that when executors have acted with reasonable diligence and an honest desire to do their duty faithfully, a mere error of judgment in what was fairly matter of judgment or opinion should not make them liable merely because subsequent events have shown they did not pursue the wisest course. But, on the other hand, they must be held to that degree of diligence which men ordinarily use in the management of their own affairs, and if through lack of that the interests of the trust estate are damnified, they must make good the loss.” Whitney v. Peddicord, 63 Ill. 249.

Tested by this rule we do not think the decree of the court below is sustained by the evidence. Several witnesses were examined as to their judgment of what the land was worth at the time of the sale, but none of them testify to any offer made to appellant of anything near the amount the court found he could have had by the exercise of reasonable diligence. Robinson testified that in his judgment the land was worth, on March 1, 1883, fifty dollars per acre; that he then wanted to buy it for his son-in-law, Salyers; that he had a conversation with appellant about it, who said that he need not look at it for less than forty-five dollars per acre; that he would uot give that, but afterward examined it with Salyers, and they both thought forty dollars about right. Salyers testifies this examination took place in the fall of 1881; that he would have given that price for it then if he had sold his farm, but for that reason did not try to buy it.

John Oder testifies he examined the land with a view of buying it in September, 1882, but was then told by appellant that he had priced it to his son William at $30 per acre, and could not price it to any one else until he had heard from him. This witness thought the land was worth $45 to $50 per acre, but he did not profess to be acquainted with the value of land in that neighborhood. He made no offer.

The following named witness, who had known the land for some years, gave its market value on March 1, 1883, as follows: William Latham, $50; John Virgin, $50; James P. Dewees, $40 to $45; William T. Bovce, $45 to $50; but none of them testify to any opportunities appellant had for selling at any of those prices.

On the other hand it appears that the land had been rented out for at least twenty-five years; that the buildings were old and in bad condition; the fences were worn out, the soil impoverished and overgrown with noxious weeds. Appellant made several attempts to sell the land to parties wishing to purchase, but failed. Thomas Berry examined it with reference to a purchase, but would not make an offer for it on account of its condition. Mewton Reed examined it with reference to a purchase, and offered $30 per acre for it, which lie considered all it was worth. He was not well acquainted with the value of lands there, but wanted to buy this for the timber that was on it, which he regarded as the most valuable part of it. Richard Ruble and Jacob Strawn, who had known the farm for some years, say the land was not worth more than $33 and $30 per acre, respectively. The testimony of these witnesses alone would tend very strongly to show that appellant, after keeping the land for three years and offering it for sale all that time, had not greatly abused his trust.

But the most satisfactory evidence in the case is the estimate put upon the land by the parties interested in it. Joel Corrington died leaving six children his heirs-at-law, namely: Rosaline Allen, Emily E. McCoy, Frances Rowland, Wesley W. Corrington, John W. Corrington (appellant), and James C. Corrington, all of whom were interested in the land as devisees, or rather as legatees of the fund to be derived from its sale. James 0. and Wesley W. Corrington, both of whom seem to be non-residents of the State, are the only ones that file exceptions to the report. Mrs. Rowland sold her interest to appellant at $30 per acre, so that at the time of the sale in question, appellant was the owner of two shares or one third of the whole. Mrs. McCoy and Mrs. Allen acquiesce in the price obtained for the land. Appellant had offered the land to each of them at $30 per acre, but they neither purchased themselves nor did they offer to produce a purchaser at a higher price.

James C. Corrington, one of the objectors, saw appellant in the fall of 1881, who told him then the land was run down and thought he could not get more than $25 or $30 per acre, but that he told appellant the heirs would never be satisfied with that price, and he had better not sell it for that. Appellant and his sm, John B. Corrington, both testify that in that conversation appellant offered him the land at $30 per acre, which offer he declined, although according to his own testimony he then had $6,000 cash in bank. If the land at that time could have been sold readily for even $40 per acre it would seem very strange that he did not secure it for himself. Appellant kept the land for more than a year thereafter, and if it could have been sold for a higher price than appellant got for it, it seems strange those most interested in it, knowing as they did all the facts, did not procure a purchaser.

Wesley W. Corrington, the other objector, on the 27th day of March, 1882, wrote to appellant, apparently in answer to a letter from him, saying $30 per acre was his best offer for the land; that he, said Wesley, would give $31 per acre, and requested an immediate answer. Again, on the 29th day of August, 1882, he wrote again, offering $33-§- per acre, paying one half down on the first of March, 1883, and the remainder in two equal payments, with interest at six per cent. These were the highest offers appellant at any time had for the land. Mo reason appears to be given in the evidence why the last one was not accepted. It seems to have been made in good faith, after appellant had had the land for three years without any better offer. Appellant ought to explain why this offer was not accepted, or be charged with the amount of said offer in his settlement.

But the proof falls far short of showing that appellant, by the exercise of reasonable diligence, might have sold the land for the prices charged against him in the decree. It does not appear that he failed to give due publicity to the fact that the land was for sale, or that he failed to make use of reasonable efforts to induce persons wishing to purchase to examine it with reference to its sale. A large discretion was confided to him by the will, to sell in the time and manner he might deem best for the heirs. The evidence shows that he made repeated efforts to sell to persons wishing to buy, and failing in that offered the land to each of the heirs at $30 per acre, with the results before mentioned. We are unable to see in what respect he is at fault, unless it be in his failure to accept the offer of said Wesley W. Corrington.

The same might be said as to the rents. Upon the point as to what would have been a fair and reasonable rental value the witnesses differ in opinion very materially. But it appears from the evidence that on the 26th day of February, 1879, which was in. the lifetime of the testator, appellant and his two sisters, Mrs. Alien and Mrs. McCoy, had, as heirs of said Joel, rented the land to William W. Corrington, the son of appellant, who afterward purchased a portion of the land, lie to pay the taxes and put the farm in fair repair for the first year’s rent; for the second year he was to pa)' $300, and for the third year, or so long as the farm was to rent, he was to pay $375 per year. If this agreement was made under the authority of the testator, by his three children above named as his agents, we can see no reason why it would not bind the estate. But even if this were not so, it does not seem that any objection was raised to it by any of the parties interested until after the sale of the land and appellant had made his report. This is a circumstance tending to show at least that appellant was not abusing his trust. Without going over the evidence in detail as to the rental value, we are of opinion that the evidence in this record fails to show that appellant has failed to exercise that reasonable care in regard to the renting of the land, which, considering its situation and condition, a reasonably prudent person would have exercised in respect to his own.

For these reasons the decree of the circuit court will be reversed and the cause remanded for further proceedings.

Be versed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Citizens Gas Light and Heating Co. v. Nora O’Brien, Adm’x, etc.
    1. Statement.—Appellee’s husband was employed by appellant, a firm engaged in the manufacture of illuminating gas, as a laborer, and was told by the foreman to ascend a ladder in the room in which the apparatus was situated, and remove some planks lying upon the iron girders nearly over the superheater; while there deceased became dizzy and fell, receiving injuries from which he died. Appellee brings suit against appellant, and the gravamen of the charge is that by reason of the defective condition and operation of the apparatus, poisonous gases escaped into that portion of the room where deceased was negligently directed by the foreman to go, and that his death was caused by inhaling these gases.
    2. Expert testimony.-—-Where physicians were called in as experts, who testified as to what would be the products of the combustion of hard coal in the generator and superheater, and as to the effect these gases would have upon the human system, and the symptoms following their inhalation; and the portions of the apparatus, the number and situation of ventilators, dimensions of the room, etc., having been fully described by other witnesses, hypothetical questions were propounded to these witnesses, the intention of which was to draw out their opinions as to what would have been the condition of the air in the upper part of the building, as to its being impregnated with gases, with the means of ventilation described. Held, that the testimony as to the formation of gases, etc., was proper; hut the answers to the hypothetical question were inadmissible. An expert must have experience as well as theory in the matter about which he is called to testify. Although these physicians were skilled in the laboratory and had, in their practice, studied generally the subject of ventilation, none of them had any experience in the use, construction or ventilation of such buildings as the one in question.
    3. Negligence.—If an employe, by his disobedience of the orders of the foreman, increased his risk, and thereby, contributed to his own injury, it would he a question for the jury to determine, under proper instructions, whether his negligence was slight, and that of the defendant gross in comparison therewith.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Kerrick, Lucas & Spencer, for appellant;
    that it was error to permit the so-called experts to testify as experts upon the subject of ventilation without showing any peculiar knowledge or skill upon that subject, cited Beach v. Kirk, 11 N. H. 397; Heald v. Thing, 45 Me. 392; Clark v. Bruce, 19 Hun, 274; Rogers on Expert Testimony, 22; C. & N. W. Ry. Co. v. Adams, 108 Ill. 577; Hopkins v. Ind. & St. L. R. R. Co., 78 Ill. 32; Hamilton v. Des Moines R. R. Co., 36 Ia. 31; Muldowny v. Ill. Cent. R. R. Co., 36 Ia. 702.
    Mr. John T. Lillard, for appellee;
    as to the competency of the expert witnesses, cited Hyde v. Bacon, 1 Ia. 159; State v. Hinkle, 6 Ia. 380; Rogers on Expert Testimony, §§ 16-17; Jones v. Tucker, 41 N. H. 546; Dale v. Johnson, 5 N. H. 546; Hill v. Home Ins. Co., 129 Mass. 345; Tucker v. Mass. Cent. R. R. Co., 118 Mass. 546; Swan v. Middlesex, 101 Mass. 173; Lawrence v. Boston, 119 Mass. 126; Lawton v. Chase, 108 Mass. 238; Ardesco Oil Co. v. Gilson, 63 Penn. 146; Del. Steamboat Co. v. Storrs, 69 Penn. 36; Gay v. First German Congregation, 63 Penn. 156; Howard v. Providence, 6 R. I. 516.
   McCulloch, J.

This was a suit by appellee against appellant to recover damages resulting to her from the death of her husband, which she alleges was caused by the negligence of appellant, under the following circumstances. Appellant is the owner of a building intended to be used for the manufacture of illuminating gas by means of a certain apparatus manufactured by A. O. Granger & Co. This firm had about completed their contract for putting in the works, and had made one test of them on the day preceding that on which the accident happened which resulted in the death of appellee’s husband, but had not yet turned the same over to appellant.

The principal parts of this apparatus consist of a generator, located beneath the main floor, and three upright cylindrical chambers of about the height of eighteen feet above the floor upon which they stand. The first of these is called the super-heater, the second the condenser, and the third the scrubber. Coal is put into the generator and ignited, the combustion being greatly accelerated by a strong blast of air from a revolving fan. From the generator the smoke and gases, resulting from the combustion of the coal, pass into the superheater, where they are met by another blast of air from the fan, whereby the combustion is completed. The interior of the superheater is lined with fire bricks, and this process of burning coal is continued until these fire bricks are heated to a white heat, when the chamber is closed against the external air and the process of generating the illuminating gas is commenced. At the top of the superheater is a valve for the escape of the products of combustion during the heating process, but when the process of generating the illuminating gas is about to commence this valve is closed. The gases produced by the consumption of the coal daring the heating process, and which escape through the valve at the top of the superheater, are carbonic acid gas and carbonic oxide, both of which are said to be highly deleterious to human life when inhaled into the lungs.

Tor several days prior to the day in question a slow fire had been kept burning in the generator for the purpose of drying out the lining of fire bricks in the superheater. On the day next preceding that of the accident, the works had been started and a small quantity of illuminating gas manufactured. The draft had been shut ofif from the generator about five o’clock in the afternoon, leaving in-it a bed of partially consumed coal in an ignited condition, and the valve at the top of the superheater open. It remained in that condition over night, so that if any noxious gases were generated during that time they had free access to the upper part of the building. The fact that there was no draft of air through the generator would render combustion very slow and the escape of gases through the valve correspondingly diminished.

The building consisted of a brick wall with numerous windows and doors, and a slate roof supported by an iron frame. The roof was pierced with three openings, of the diameter of twenty and twenty-four inches respectively, for ventilating purposes. The intention was to place a pipe with a funnel-shaped mouth, opening downward, and projecting through the roof, directly over the valve at the top of the superheater to carry oft" what was emitted therefrom, but it had not yet been placed in position.

On the day in question, Mr. Odell, the agent of Granger & Go., was yet in charge of the apparatus for manufacturing gas, while one Burns, the superintendent employed by the appellant, had charge of the building and the works generally, and had the control of nearly if not all the men employed about the same. A few minutes before noon on that day Odell had the engine started with the intention of making another trial of the apparatus, but the blast had not yet been started through the generator. Some fresh coal had been put in during the forenoon, but the fire had not been started up, so that it appears the works were nearly in the same condition they had been during the night.

Some planks were lying upon the iron girders nearly over tlie superheater. Fearing these might take fire Burns sent the deceased, who was in appellant’s employment as a laborer, and one Clark to remove them. Deceased ascended by a ladder to the top of the condenser, and then taking hold of the iron girder, which was higher than his head, swung himself up to where the planks were. In the meantime Clark had taken off his coat and had gotten part way up the same ladder. Looking up he saw the deceased swing himself down to the top of the condenser. After standing there for a few moments he tottered and fell to the brick floor and received the injuries from which he died.

The gravamen of the charge is that by reason of the defective condition and operation of such apparatus poisonous gases escaped into that portion of the room where the deceased was directed to go; that Burns negligently directed the deceased to go there; that he was overcome by inhaling the said gases and fell to the floor, receiving the injuries from which he died; that appellant knew, or might by the exercise of reasonable care have known of the presence of such gases, but that the deceased did not know of the'same although he was in the exercise of reasonable care.

, There was no attempt to prove the presence of any of the illuminating gas in the building, but the proof was confined wholly to that which escaped through the superheater valve as the product of the combustion of the coal.

The presence of gas is attempted to be proved by the action of the deceased. Immediately after reaching the place where his work was to be done he left without accomplishing the object of his mission. Clark says he spoke to him but received no answer; that deceased looked overcome and “sorter” dizzy; that he went to sit*down, his knees began to quiver and he went over backward. Joe Kirby, a boy eleven years old, the only other witness who saw him fall, says he had his hands clasped around the boards; that he swung and let go when in the center of the condenser; tried to bend his knees a little; tried to get hold of the ladder, and fell; that Clark did not say anything, but hallooed when O’Brien fell; that deceased did not speak but made a little groan just before he fell, and that he fell forward.

Clark -also testified that when on the ladder he smelled some gas; that the superheater valve was open; the wind was on the blower, and that flame and sparks were issuing from the valve. His testimony is somewhat invalidated by the testimony of other witnesses, who ascended the ladder very shortly afterward and smelled no gas, and of others who overwhelm him upon the subject of the blast having been turned on the fire.

It is not contended that these noxious gases were afloat in sufficient quantities in the lower portion of the building to endanger life. Hor is there any evidence that Burns or any other agent of appellant had actual notice of their presence above. Burns, on the contrary, testifies he had no knowledge whatever they were there.

It is contended, however, that Burns, being a man of experience in the manufacture of gas and in the use of apparatus similar to this, if in the exercise of reasonable care would have known of the presence of these gases at the place to which he sent the deceased to work, and that his failure to inform himself thereof was culpable negligence, for which appellant is liable.

Two points were necessary to make out appellee’s ease. First, that the deceased met his death by reason of poisonous gases at the place where Burns had sent him to work; secondly, that Burns was guilty of negligence in not detecting their presence.

Some stress is laid, in the argument, upon the fact that the escape pipe had not been placed above the valve of the super-heater, and that in consequence thereof the gases were permitted to accumulate in the upper part of the building. On the other hand it is contended that if there was any negligence in that, it was the- fault of Granger & Co. and not of appellant. We can not see how it becomes material in this case to decide through whose fault it was that the gases were permitted to accumulate. The complaint is that Burns sent the deceased, who was ignorant of the situation, into a place of known danger. The construction of the building, the situation of the apparatus and the manner of its use may, if brought home to the knowledge of Burns, be circumstances tending to show that he ought to have known of the situation above, but the cause of action is the negligence of Burns in sending the deceased to work where he (Burns) ought to have known there was danger.

Upon the question of the presence of gas in the upj er part of the building, appellee’s counsel were not content to rest their case upon the testimony of Clark alone. He testified that when part way up the ladder he smelled gas, but other witnesses in as good a situation for observation as he, were prepared to testify they smelled none. Clark had testified that the blast had been turned into the generator, and that it was driving the blaze and sparks out through the superheater valve and making a very loud noise, while other witnesses were prepared to contradict him upon these very material points.

Counsel therefore called in, as experts, three witnesses learned in the science of chemistry. These witnesses all testified that the products of the combustion of hard coal in the generator and superheater would be carbonic acid gas and carbonic oxide; that the specific gravity of the former was greater, and that of the latter less, than the specific gravity of common air; that while both of them would mix with common air, the tendency of the former was to descend and of the latter to ascend; that both were highly poisonous, but the latter much more so than the former, and that large quantities of these gases would be driven through the superheater valve when the blast was on. These witnesses were all physicians in good standing and testified to the effect such gases would have upon the human system, and the symptoms following their inhalation when breathed separately or in a mixed state.

This line of investigation was properly within the province of expert testimony. If it could be shown that the combustion of coal in the generator and superheater would produce two poisonous gases; that both of them would to some extent mix. with and diffuse themselves through the-mass of air in a room, but that the more dangerous of the two would incline to the upper part of the room, while the tendency of the other would be to settle to the floor; that the inhalation of one or both of them was likely to be followed by certain symptoms; ■that the deceased had been exposed in aplace where such gases would, under the circumstances in proof, be likely to be found; that immediately thereafter he was seen to exhibit such symptoms, the jury could fairly conclude that such gases were then and there present.

The scientific knowledge thus imparted to the jury would form the connecting link in the testimony by which a certain known effect would be traced to its proper canse. The principles of science being thus brought to bear upon the facts testified to by witnesses who had learned the same from observation, the jury would be enabled to arrive at a proper conclusion.

But it is exclusively the province of the jury to draw their own conclusions from the evidence before them. Witnesses should not be permitted to perform that office for them. We are not aware that any rule can be laid down in general terms whereby the limits may be defined beyond which experts may not go in giving an opinion to the jury. Their duty is to give evidence; not to decide the case on trial. It is for the court to allow the witness to testify so long as his testimony tends to establish the matters in issue, but the court should arrest the inquiry whenever it would place the witness in the place of the juror.

When tested by these principles, we are of opinion that portions of the testimony of these witnesses was improperly received. The premises had been somewhat fully described by other witnesses as to the location of the different portions of the apparatus, the height of its several parts, the number of doors and windows in the building, the number, size and construction of the ventilators, dimensions of the. room, etc. Interrogatories were then propounded to each of these witnesses based upon a hypothetical state of facts assumed to have been established by the testimony of other witnesses, the intention of which was to draw out their opinions respectively as to what would have been the condition of the air in the upper part of the building, as to its being impregnated with gases, with the means of ventilation described. We select one of these questions put to Dr. Mason as an example.

Q. Doctor, if the roof of the building, taking this apparatus as eighteen feet high (showing plat-), the distance over the apparatus to a line from the top of a brick wall seven feet more, fifteen feet from that point to the cone of the roof, building- somewhere about thirty-four by thirty-six, witli a round opening in the center of the roof twenty-four inches in diameter, with a cap over it, with a head to the cap open four inches wide under the cap, so the gases will pass out, two other ventilators constructed in like manner in a room of that size, with this generator here, with three hundred pounds of coal in it in a state of combustion, what would in your judgment be the condition of the air as to being impregnated with these gases, with what means of ventilation and a supply of these gases as described?

To this question the witness made the following replj: “Taking the situation of the building as stated, there would be some gases in the upper part of the room; gas would tend to diffuse itself about the room.”

The question whether or not there were any such gases in the upper part of the room was a vital question in the case. Mow if this witness had been sitting by and had heard ail the testimony that had gone before, and had he then been called upon to testify what his opinion was as to the presence of these gases, and had he then given an opinion in favor of their presence, he would not have more effectually usurped the functions of the juror than he did in the answer given.

In that case he would have had in his mind’s eye all the facts testified to by the witnesses who had preceded him, and from such facts he would have made up his opinion; whereas, in this instance, he was called upon to give his opinion upon one of the principal issues in the case, based upon a partial and hypothetical statement of the facts as they were assumed by appellee’s counsel to have been proved by other witnesses. His judgment in the case we have supposed, would have been much more reliable "than in the case before the jury; and no judicial mind could in such case ever sanction the practice of allowing a witness to give his judgment or opinion as to the existence of a fact in issue drawn from the testimony of other witnesses. That would be plainly to substitute the judgment of the witness for that of the juror.

Another objection to this class of testimony exists in the fact that the witnesses are not shown to have had any special knowledge, skill or experience in regard to one subject upon which they were called upon to express an opinion. To make the opinions of experts admissible, it is necessary that the subject-matter of inquiry should be within the range of the peculiar skill and experience of the witness, and one of which the ordinary knowledge and experience of mankind does not enable them to see what inferences should be drawn from the facts. Rogers on Expert Testimony, p. 13; Hopkins v. Indianapolis & St. Louis R. R. Co., 78 Ill. 32; C. & N. W. Ry. Co. v. Adams, 108 Ill. 577; Hamilton v. Des Moines R. R. Co., 36 Iowa, 31; Muldoway v. Ill. Cent. R. R. Co., 36 Iowa, 702. However learned or experienced they may have been in the line of their profession, or in the science of chemistry, yet that does not qualify them for expressing their opinion upon matters altogether beyond and outside the range of their peculiar skill, experience or reading. If, as they testified, the tendency of carbonic oxide is to ascend to the upper part of the building, it would follow that, like the more ratified air, it would seek an outlet through the ven til at >rs; the rapidity of its escape wmuld depend somewhat up< n the temperature inside the building as compared with that outside of it, as well as by the condition of the doors and windows, as to whether they were open or not. It would also depend somewdiat upon the velocity and direction of the wind, the size and construction of the ventilators and many other circumstances which might occur to one accustomed to be about such buildings. The quantity of the gas in the building would, under these varying circumstances, also depend upon the length of time that had elapsed since the blast had been shut off, and whether or not any fresh coal had afterward been added. One versed in the science of physics might guess at it, but jurors are sometimes as good guessers as the most eminent scholars.

Dr. Mason’s testimony is that he had to some extent investigated the question of ventilation; that it is involved in his study, practice and teaching; that he had made observations for quite a number of buildings in connection with public school buildings, and in answer to a question by the court if he would consider himself competent for the ventilation of any building, answered that he had undertaken it.

Dr. Dyson testified that he had not given the question of ventilation much attention; that he had a general idea upon the subject, but had not made it a specific study.

Dr. Taylor was not examined as to his competency as an expert upon this question, and but few questions were put to him touching the same.

We would not be understood as saying that persons who are in the habit of being about such buildings might not have acquired such a special knowledge of the requirements necessary to good ventilation and the removal of gases that might accumulate therein, as to enable them to testify as experts. Buildings erected for special purposes, such as gas works, foundries, breweries, paper mills and the like, may require the adoption of certain appliances for their proper ventilation which would be wholly unnecessary or unadapted to the ventilation of dwellings, stores, churches or schoolhouses. Men learned in the sciences may testify concerning the laws which govern the circulation and diffusion of deletereous gases, but it oftentimes requires a careful study of the construction of the building itself in determining what effect these laws have in a particular instance. The members of this court have been made painfully aware of this fact by the escape of the product of burning gas from the fireplace into their conference room. A flue is placed in the wall to carry it off, and according to the laws of nature, as taught by books of science, this flue ought to perform its office without fault. But it is found by experience that under certain conditions of the atmosphere in the great dome that overtops the building, the action of this flue, as well as many others like it, is exactly the reverse of what it should be. Men of science who had never seen the building might puzzle their wits a long time to find out the cause of this, but the superintendent of the heating apparatus can explain it in an instant; and his explanation is perfectly consistent with the operation of that law which science would tell us should carry the products of the burning gas out through the fine in the wall. In a case like that the experience of the superintendent would prevail over the theories of science based upon a partial statement of facts, and yet when science has taken hold of all the facts the whole matter is readily and easily explained.

This illustration serves the purpose of giving point to the rule that requires one to have experience, as well as tlieoiy, in the matter about which he is called to testify as an expert. The witnesses in this case were no doubt eminent in their profession and skilled in the work of the laboratory, but none of them had any experience in the construction, use or ventilating of such buildings as the one in question. We are therefore of the opinion they were incompetent to give their opinions upon the subject-matter inquired of them.

Fire had been burning in the generator for some days and no doubt as great a quantity of these noxious gases had been emitted through the superheater valve during that time as on the day of the accident. Ho attempt was made to prove their presence there before that time or that Burns had any knowledge thereof. Could it be shown that he knew of the presence of these gases at the place in question on other days preceding, that might be an additional circumstance to charge him with notice of their presence on the day of the accident. But there are so many conditions, the existence or non-existence of which might give color to the occurrence, that to allow the opinions of witnesses who had never seen the building to go before the jury as a matter of evidence upon one of the main points in issue by which their verdict might be controlled, is error of a very grave character.

It is said that appellee ought not to recover because the deceased disobeyed the instructions of his foreman, Byerly, in the maimer of his getting up to where the planks were lying. We can not say as a matter of law that this is so. If he, by his disobedience of orders, increased his risk, and thereby contributed to his injury, it would be a question for the jury to determine, under proper instructions, whether his negligence was slight and that of the defendants gross, as defined by numerous adjudicated cases-.

Some criticism is indulged in as to some of the instructions given upon the part of appellee. Some of them are not wholly free from the objections taken, but they are of slight importance, and can be corrected on another trial without any further suggestion from us. But- for the admission of improper testimony the judgment of the circuit court will he reversed and the cause remanded.

Beversed and remanded.


text:
    Francis L. Bryant v. Robert Faries et al.
    Indorsement—Agency—Parol evidence,—Appellant sent an engine, boiler and other fixtures to appellees to sell. Appellees, without any instructions from appellant, put some repairs upon the engine, and then sold it, together with a boiler and other fixtures of their own, for $600, and without appellant’s knowledge or consent warranted the engine to do certain work. Upon a settlement it was agreed that appellant should receive $280 of the proceeds of the sale after paying incidental expenses, and appellees were to take a note from the firm to whom they had sold the engine, etc., for that amount, payable to themselves, and assign the same to appellant. Suit was brought by appellant against the makers of the note, but they interposed the defense of a partial failure of the consideration of the note, inasmuch as the engine failed to do certain work which appellees, as agents of appellant in making the sale, warranted it to do. Appellant recovered a judgment of §232, and now brings this suit against appellees upon their indorsement to recover the difference. Selcl, that appellees had the right to show, if they could, that they were acting merely as the agents of appellant, and that there was no consideration for the indorsement, but the court is of opinion that the evidence fails to rebut the prima facie case made by the indorsement. Appellees made the indorsement in settlement of a liability of their own to appellant, and according to the terms of the indorsement the law would presume a liability which they have failed to rebut.
    Appeal from the Circuit Court of Macon county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed October 3, 1884.
    Messrs. Outten & Vail, for appellant;
    as to the liability of appellees on the contract of indorsement, cited Crouch v. Hall, 15 Ill. 263; Raplee v. Morgan, 2 Scam. 561.
    As to the evidence of a different verbal agreement, made at the time of the indorsement, being inadmissible: Howes v. Merrill, 5 Cush. 82; Campbell v. Robbins, 29 Ind. 271; Jones v. Albee, 70 Ill. 34; Skelton v. Dustin, 92 Ill. 49; Beattie v. Browne, 64 Ill. 360; 18 Central Law Journal, No. 20, p. 382; Story on Agency, § 269.
    Mr. David Hutohisoh, for appellees.
   McCulloch, J.

Appellant, who was the owner of an engine, boiler, pumps and other fixtures, placed the same in the hands of appellees, who were engaged in the business of manufacturing, repairing and selling like machinery, to be sold by them on appellant’s account. Appellees, for the purpose of rendering the same more salable, but without any instructions to that effect from appellant, put some repairs upon the engine and then sold it, 'together with a boiler and other fixtures of their own, to the firm of Gregory & Wood, for the gross sum of six hundred dollars.

Upon a settlement between appellant and appellees it was agreed between them that appellant should receive two hundred and eighty dollars of the proceeds of said sale, after paying freight and other incidental expenses, including six dollars to appellees for making the sale. Appellees were to take a note of Gregory & Wood for that amount payable to themselves and assign the same to appellant. This was done according to the agreement, and this suit is brought by appellant against appellees upon their indorsement of said note.

Suit was brought in apt time by appellant against Gregory & Wood as makers of the note, but they interpose the defense that appellees, as agents of appellant in making sale of said engine, had warranted it to do certain work which it had failed to do, wherefore the consideration of the said note had in part failed. Upon the trial of that issue appellant recovered a judgment against Gregory & Wood for $232, which has been paid.

This suit is brought to recover the difference between that sum and the whole amount due upon the note, which for the purposes of this suit must be regarded as the consideration for the assignment.

It is contended on the part of appellees that having acted only as agents of appellant in making the sale of said engine and. in taking the note from. Gregory & Wood, their indorsement of the same operated only as a transfer of the legal title to appellant of that which in equity already belonged to him, and there being no consideration for such assignment, no action thereon will lie against them.

Conceding, as may well be done, that in a case of pure agency, where the agent has no interest in the transaction and has made no valid agreement to become liable as an indorser, his indorsement to his principal, of paper taken in his own name in the coarse of his principal’s business, creates no such liability, it does not follow that this case comes within the operation of that rule. It is equally true that an agent may make himself liable to his principal upon such an indorsement. The real contract between the parties, when it can be ascertained, according to the rules of evidence, must govern.

Appellees, by incorporating the said engine into an outfit composed in part of a boiler and other fixtures of their own, and then selling the whole at a gross sum, had made themselves responsible to appellant for the value of his engine: The adjustment of this liability was a sufficient consideration for their agreement, if any such was made, to become responsible to appellant as indorsers. He contends they did so agree, and that having without his authority made the said warranty, whereby he lost part of the note, they are liable upon their indorsement to make good the loss so sustained.

In support of the issues on.his part, appellant introduced the note and its indorsement; he then proved the consideration of the indorsement to have been the said settlement, ar.d then proved by the record of the former suit the loss he had sustained by reason of appellees having entered into said warranty in his name.

Appellees then endeavored to prove by parol evidence all the circumstances attending the transaction, for the purpose of showing they could not be held liable as indorsers. To all this class of evidence appellant objected oh the ground that it was an attempt to set up a different contract by parol from, that which the law would imply from the nature of the indorsement, but the court overruled his objections, and heard the evidence.

The case was tried by the court without the intervention of a jury. In such cases, even if improper evidence is admitted, we are not inclined to reverse, if enough competent evidence appears in he record to sustain the findmg of the court. But, to say the least of it, appellees had the right to show, if they could, that they were acting merely as the agents of appellant, and that there was no consideration for the indorsement. Scammon v Adams, 11 Ill. 575; Jones v. Albee, 70 Ill. 34. This they attempted to do, but we are of the opinion the evidence fails to susta'n their position.

Appellant was not known in the sale to Gregory & Wood, nor in the note from them to appellees. Although the note was made for the actual amount coming to appellant, yet that was done for the convenience of appellees and in part settlement of a debt owing them by Gregory & Wood. The indorsement was regular on its face, and bore no evidence whatever that it was intended to be without recourse. The consideration was, as before seen, sufficient to support the contract of indorsement, and from the face of the transaction the law would imply a liability.

This prima facie case has not been overcome. Oakes, one of the defendants, testifies that the understanding was, they were to assign the note to appellant. If they were not to be liable as indorsers, why was the note made payable to them, instead of to appellant, to be indorsed by them? and why, if they were not to be held liable as indorsers, did they not affix to their indorsement the usual words “without recourse”? These questions are not answered by the evidence.

On the other hand the testimony of appellant is that he told appellees that it would be satisfactory to him to take the note of Gregory & Wood with their indorsement; that he did not know the financial standing of Gregory & Wood; that he had never heard of Wood, and as they lived out of his county 1 e did not know if Gregory was good, but that the indorsement of appellees made the nóte good; that Oakes, with whom the business was done, agreed to take the note and indorse it, which was done, and he relied upon the indorsement.

There seems to be little if any conflict in the evidence. Appellees made tne indorsement in settlement of a liability of their own to appellant, and according to the terms of the indorsement the law would presume a liability, which they have failed to rebnt. We therefore hold that according to the evidence contained in this record appellant was entitled to recover. The judgment of the circuit court will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Jacob Schemerhorn v. A. K. Mitchell.
    1. Chattel mortgage on stock in trade.—Under a mortgage upon a stock of goods in trade and fixtures, the mortgagor, selling the goods in course of trade and replacing them with others with the consent of the mortgagee, invalidates the mortgage as to the stock in trade as against creditors, although as to the fixtures not embraced within such permission the mortgage might remain a valid lien.
    2. Replevin'—Pleading.—In an action of replevin an officer in a plea of justification, setting up a special property in himself or in the plaintiff in the execution, ought at the same time to traverse the right of property in the plaintiff in replevin. Although the allegation of property in the plaintiff may be the only issuable matter in such a case, yet often matter alleged by way of inducement to the traverse of plaintiff's right of property must necessarily be proved.
    3. Same—Wiiat necessary to prove.—Where it becomes necessary, in such case, to attack the title of the plaintiff in replevin, for fraud or for any other vice that would render the title void as to creditors, when the same would he good as between the parties, it is incumbent on the officer to show that the plaintiff in the execution occupies such a position as will entitle him to contest the title of the plaintiff in replevin.
    4/ Form of judgment.—Where a judgment upon which an execution was issued, reading as follows: “ The jury retired and returned the following verdict: We the jury find for the plaintiff in the sum of $200, and the same is the judgment of the court, with costs of this suit,’’ was questioned collaterally. Held, that the judgment was sufficiently formal.

      5. Officer—What proof necessary to show title to office.— Where to establish his title to the office of constable, a certificate of election, granted as provided by the statute (Ch. 79, § 9), was offered in evidence in a replevin suit, by a constable who had levied upon the goods. Held, that this was prima facie evidence of his right to the office. When defending in his own right, he may be called upon to show by competent proof a right to the office, but when the interests of the public or of third parties are involved, the party interested is only bound to show him to be an officer de facto.

    Appeal from the Circuit Court of Greene county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed October 3, 1884.
    Mr. War. M. Ward, for appellant;
    that the subsequently acquired property is subject to execution, cited Rhines v. Phelps, 3 Gilm. 455; Hunt v. Bullock, 23 Ill. 320; Davis v. Ransom, 18 Ill. 396; Titus v. Mabee, 25 Ill. 257; Stowell v. Bair, 5 Bradwell, 104.
    If the mortgagee allowed the mortgagor to hold the property for sale he lost his lien: Greenebaum v. Wheeler, 90 Ill. 296; Dunning v. Mead, 90 Ill. 376; Barnet v. Fergus, 51 Ill. 352; Ogden v. Stewart, 29 Ill. 122.
    Mr. James E. Ward, for appellee;
    that appellant’s right to exercise the functions of town constable was directly challenged, and it was therefore incumbent upon him to prove that he was a town constable, de jure, cited Outhouse v. Allen, 72 Ill. 530; Case v. Hale, 21 Ill. 632; Schleneker v. Risley, 3 Scam. 483.
    As to the judgment being void: Faulk v. Kellums, 54 Ill. 190; Martin v. Barnhardt, 39 Ill. 13; Edwards v. Evans, 61, Ill. 492; R. S. 1883, Ch. 79, §§ 46-122.
   McCulloch, J.

This was a suit in replevin, brought by appellee against appellant to recover certain furniture, fixtures and stock in trade, which appellant had levied upon as the property of Charles Schnell, by virtue of an execution in his hands in favor of the town of Greenfield against said Schnell, and upon which property appellee claimed to have a chattel mortgage executed by said Schnell and a former partner of his by the name of Finley.

The declaration contains two counts, one in the cejoit, the other in the detinet. The first count was not sustained by the evidence, for the property was not taken from appellee, but from Schnell, in whose possession it lawfully was at the time of seizure by appellant. Appellee’s case therefore rests upon the second count, to sustain which it 'was necessary to prove a demand upon appellant before bringing suit. Simmons v. Jenkins, 76 Ill. 479.

The affidavit, the writ and the declaration in replevin all describe the property by enumerating the specific items, except the stock in trade, which is described as a lot of cigars, tobacco and notions. The description in the mortgage is the same, except as to the stock in trade, which is described as a stock of groceries, confections, notions, cigars and tobacco.

On the trial it was admitted that appellee had proved • right to recover all the items of property specifically enumerated in liis mortgage, so that the contest is narrowed down to the property described in the writ as a lot of cigars, tobacco and notions. Some controversy seems to have sprung up in the course of the trial as to the property alleged to have been seized under the writ of replevin, but not described in the affidavit, the writ or the declaration. We can not see how any such question can properly arise in the case. If the sheriff exceeded the command of the writ he is responsible for his acts to the party injured. If the property seized comes under the description in the affidavit and writ, it would have to be returned in obedience to the command of a writ of retorno habendo, should one be awarded, or in default thereof the plain tiff in the replevin suit and his surety upon the replevin bond would become liable for its value. The only question before the circuit court therefore was whether or not appellee had a right to recover from appellant the property described in the writ and declaration as a lot of cigars, tobacco and notions.

Appellant interposed in his defense the pleas of non cepii and non detinet, upon which issues were joined to the country; also a plea of property in said Schnell and one of property in himself, to which appellee replied; upon which replications issue was also joined. He also pleaded two pleas setting up that he was a constable, and that a writ of fieri faoias came into his hands in favor of the town of Greenfield against the said Schnell, issued upon a judgment still in force and unsatisfied; that by virtue of such execution he levied upon the goods and chattels in controversy as the property of said Schnell, and that the same were his property and not the property of appellee. To the first of these pleas appellee filed two replications: first, that the said goods and chattels were his property; secondly, that appellant was not a constable. To the second of these last named pleas appellee also filed two replications: first, that appellant was not a constable; secondly, that there was no valid judgment to support the execution.

The evidence very clearly shows that after the execution of the mortgage and before the levy the mortgagors went on and sold nearly all the stock in trade on hand when the mortgage was executed and replaced it with other goods. If this was done with the consent of the mortgagee it would render the mortgage fraudulent as to creditors, so far as it covered the goods so permitted to be sold: Greenebaum v. Wheeler, 90 Ill. 296; Dunning v. Mead, Id. 376; Barnet v. Fergus, 51 Ill. 352; Ogden v. Stewart, 29 Ill. 122; although as to the furniture, fixtures and other property not embraced within such permission it might remain a valid lien. But as to after acquired property a chattel mortgage can not be made valid against the claims of creditors. Hunt v. Bullock, 23 Ill. 330; Titus v. Mabee, 25 Ill. 257.

The issue presented by these two pleas, in which appellant relied upon his levy, is the right of property in appellee. They are sometimes called and treated as pleas of justification. While setting up a special property in the officer, or perhaps in the plaintiff in the execution, they ought to traverse the right of property in the plaintiff, and it has been held in some cases that this is the only issuable matter, all antecedent allegations being considered merely as inducement. Jackson v. Hobson, 4 Scam. 411; Anderson v. Talcott, 1 Gilm. 365; Boswell v. Green, 1 Hutch. 390; Brown v. Dissett, 1 Zab. 267.

The burden of proof is upon the plaintiff to show a right of property in himself, and whatever he is bound to prove the defendant may disprove by any competent evidence. So when appellee liad introduced evidence of title derived from Finley and Schnell, it was competent for appellant to show that the property described in the mortgage had been sold and replaced by other property of the same description, or to show that the property was by permission of appellee being sold in. franc! of creditors.

What is proper proof in such cases will depend somewhat upon the nature of the plaintiff’s claim. It is sometimes said to be sufficient for the officer to produce his writ. But where it becomes necessary to attack the plaintiff’s title for fraud or for any other vice that would render the title void as to creditors, when the same would be good as between the parties, it is incumbent on him to show that the plaintiff in the execution occupies such a position as will entitle him to contest the title of the plaintiff. If he relies upon an execution he must at least show a valid judgment. Johnson v. Holloway, 82 Ill. 334. If he relies upon a writ of attachment he must be prepared to prove the existence of the debt. Sandford Mfg. Co. v. Wiggin, 14 N. H. R. 441; Edey v. Fath, 4 Bradwell, 275. And in case of a fraudulent sale he might be required to go further and show the existence of the debt at the time of such sale.

These principles are well illustrated by the case of Tucker v. Gill, 61 Ill. 236. In that case the debtor had made a sale of certain hogs to the plaintiffs in the replevin suit. After this sale a judgment against the seller was entered up by confession before the clerk in vacation. An execution, issued upon the judgment so confessed, was levied upon the hogs so sold, and the title of the plaintiffs was contested upon .the ground of there having been no delivery of the hogs under the contract of purchase. The plaintiffs in the replevin suit attacked the validity of the judgment on the ground of variance between it and the- cognovit. The court held the judgment to be absolutely void and therefore that neither the plaintiff in the execution nor the officer had any light to exercise any control over the property, nor to question the sufficiency of the delivery under the contract of purchase.

It is very clear, therefore, that although the allegation of property in the plaintiff maybe the only issuable matter in such pleas as the defendant below interposed in this case, yet, in making proof of the titles of the respective parties, it may and does often happen that matter alleged by way of inducement to the traverse of plaintiff’s right of property must necessarily be proved. Especially would this seem to be true in view of our statute, which provides that if the property is held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the'same'was rightfully held, with proper damages, within a given time, or make return of the property. R. S. Ch. 119, Sec. 22.

If, therefore, appellant has made the proper proof that he had a valid execution issued upon a valid judgment, that he was a constable for said county of Greene, and that he, as such officer, levied upon the property in question by virtue of said execution, he has not only defeated appellee’s right of recovery, as to the property purchased after the execution of the mortgage, but he has also shown himself entitled to a return of the same unless appellee will pay the judgment. He is also in a position to attack appellee's claim to the balance of the stock in trade for fraud.

It is insisted on the part of appellee that the judgment is x-oid for want of form. It reads as follows: “The jury retired and returned the following verdict: We, the jury, find for the plaintiff in the sum of two hundred dollars, and the same is the judgment of the court xvith costs.” We are of opinion this is sufficiently formal as a judgment. The cases cited by counsel for appellee were in direct proceedings in error or upon appeal to reverse the judgments therein rendered. Hone of them declare the judgments xvould have been void when questioned collaterally.

It is further insisted that the execution was void because it was issued before the expiration of twenty days after the rendition of the judgment and that there is no proof of any affidavit having been made as required by law in such cases. A sufficient answer to this position is that the transcript of the justice’s docket introduced in evidence shows that an affidavit was so filed. But even if that were not the case, the execution was not absolutely void, and therefore, as between the parties to it, the levy was valid and appellees can not attack it on that ground. Brown v. Jerome, 102 Ill. 371; Johnson v. Holloway, 82 Ill. 327; Jackson v. Hobson, 4 Scam. 411; Hartman v. Cochrane, 2 Bradwell, 592.

It is next insisted that the necessary proof was not made that appellant was a constable of the county of Greene. Appellant claims tobe a police constable elected under the charter of the town of Greenfield. By Art. III, Sec. 3, it is provided that “ at all elections held under this act, when a police magistrate or constable are to be elected, there shall be three judges and two clerks; one of the poll books shall be returned to the president of the council and one to the county clerk, who shall proceed in all cases, as when justices of the peace and constables are elected by general laws of this State. By Art. VII, Sec. 1, it is provided that a town constable shall be elected at the same time as the police magistrate, who shall have the same powers within said county and shall give bond and qualify as other constables. Pr. Laws 1867, Vol. 3, 405, 409.

It is provided by R. S. Ch. 79, Sec. 9, that “ Certificates of election shall be granted to' constables elect by the county clerks which shall be sufficient to authorize them to act.” This certificate takes the place of the commission from the governor to be issued to justices of the peace, as provided for in the next preceding section, and is not to issue until the constable shall have been duly qualified.

Such a certificate was issued to appellant, and the same was offered in evidence in the trial of this case, together with proof of his acting as constable. We are of the opinion this was at least prima facie evidence of his right to the office. There being no evidence to the contrary, this point was sufficiently proved, 1 Greenleaf on Ev., Sec. 92, and cases cited. Schlencker v. Risley, 3 Scam. 483; Outhouse v. Alien, 72 Ill. 529.

The two last cited cases hold that something more than mere reputation is necessary to establish the title of an officer when he interposes a plea of justification in his own defense, but we do not understand them to hold that he is bound to support his title by the same degree or quality of evidence that would be required in a proceeding by quo warranto to oust him from his office. When defending in his own right he may be called upon to show by competent proof a right to the office, but when the interests of the public or of third parties are involved, the party interested is only bound to show him to be an officer defacto.

We are therefore of opinion that the levy was a valid one, and that, as to that portion at least of the stock in trade as was purchased after the execution of the mortgage, the judgment of the court should have been for the defendant, appellant in this court.

At the time of the execution of the mortgage the property belonged to the firm of Finley & Sclmell, but in the meantime Finley had sold his interest to Selin ell, so that at the time the execution issued the property belonged to Sclmell exclusively. There can no question arise therefore as to the property being partnership property, or of its being primarily liable for the firm debts, and it was error for the court to instruct the jury upon that point. The exceptions to the other instructions we think are sufficiently covered by what has already been said.

For the reasons aforesaid the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Harry Huntington v. James A. Chambers et al.
    1. Pleading.—Appellant pleaded the general issue and the Statute of Limitations to a declaration in assumpsit, containing the common counts, for goods sold by appellees to appellant and one F., who were declared against as partners. Held, that the fact of the part-nersh p could only be put in issue by a plea in abatement properly verified as directed by the statute.
    2. Practice—Exception to ruling.—Even if the court below erred in refusing appellant leave to file an additional plea, appellant can not complain of the same now, as he did not except to the ruling' at the time.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed November 21, 1884.
    Messrs. Henley & Bose, for appellant.
    Mr. D. S. McIntyre, for appellees;
    that the general issue with notice denying partnership, and properly verified, is not sufficient, cited Hunt v. Weir, 29 Ill. 83; Shufeldt v. Seymour, 21 Ill. 524.
   Per Curiam.

The declaration in this case is in assumpsit, containing the common counts only, for goods, wares and merchandise, sold by appellees to appellant and one John Fife, who are declared against as partners.

Appellant pleaded the general issue and the Statute of Limitations.

The evidence tended to show that the goods for which the suit was brought were purchased of appellees by Fife, and the only defense relied upon by appellant was that he was not a partner at the time of the purchase.

The plea did not put in issue the fact of the partnership averred in the declaration. That fact could only he put in issue by a plea in abatement, properly verified as directed by the statute. Warren v. Chambers et al., 12 Ill. 124; Shufeldt v. Seymour et al., 21 Ill. 524; McKinney v. Peck, 28 Ill. 174; Aultman v. Webber, 4 Bradwell, 427.

Appellant complains that the court refused to let him file a proper plea to admit of said defense. The record does not show that the court refused to permit such a plea to be filed. It shows that the court refused leave to appellant to file an additional plea; but what the plea was which appellant proposed to file does not appear. It is not copied into the record nor is its contents stated. But even if the court erred in refusing the leave asked, appellant can not complain of the same now, as he did not except to the ruling at the time.

Under the pleadings and proof the court rendered the proper judgment, and we see no reason to change our judgment of affirmance.

Judgment affirmed.


author: Davis, J.

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    John Hoover v. Rachel Redmond.
    1. Statement.—A suit in equity, brought by appellee, to set aside a sale of land, made under an execution issued on a judgment obtained by appellant against appellee’s two sons, and to remove the cloud upon the title caused by such sale. On May 15, 1879, appellant recovered the judgment at law. About a month before this judgment became a lien on the land, the property in question was conveyed by the son to appellee for §2,400, but the scrivener made a mistake in the deed in describing the land, writing the east half instead of the we<t half, as intended by the parties. In August, 1881, the same scrivener attempted to correct the mistake by erasing the word “west” and inserting “east,” and the deed as thus attempted to be corrected was again filed for record. December 14,1882, the land was sold as the son’s property under an execution issued on the said judgment.
    2. Possession as notice.—Where at the time a son attempted to convey certain land to appellee, his mother, it was occupied by his brother, and a few days after she purchased the land appellee removed some bedding and a rocking chair into a bedroom occupied by her son, and took up some shrubbery and planted it on such land, but the son still occupied the house, and she did not take actual possession of the land and reside in the house until several months after appellant’s judgment against her son had become a lien on the land. Held, that putting the few things in one of the rooms of the house and transplanting the shrubbery was not such an open, visible, notorious and exclusive possession as was calculated to put appellant upon inquiry. But had it been shown that the son, who was in possession at the time of the sale by his brother, was appellee’s tenant, then his possession would have been her possession, and inquiry should have been made of him.
    Appeal from the Circuit Court of Coles county; the lion. C. B. Smith, Judge, presiding.
    Opinion filed November 21, 1884.
    Mr. A. J. Buyer, for appellant;
    as to notice by possession, cited Hassett v. Johnson, 48 Ill. 72; Winkler v. Meister, 40 Ill. 349.
    In bill to remove cloud, title must be shown: Hutchinson v. Howe, 100 Ill. 19; Hopkins v. Granger, 52 Ill. 509; West v. Schnebly, 54 Ill. 523; Emery v. Cochran, 82 Ill. 65.
    Mr. Horace S. Clark and Mr. Chas. Bennett, for appellee;
    that a freehold is involved in this case and therefore the appellate court has no jurisdiction, cited R. S. 1883, 340, § 25; Hutchinson v. Howe, 100 Ill. 11; Gage v. Busse, 94 Ill. 590.
   Davis, J.

This was a suit in equity, brought by appellee to set aside a sale of land, made under an execution issued on a judgment obtained by appellant against John and Benjamin Redmond, sons of appellee, and to remove the cloud upon the title caused by such sale.

It appears by the record that on the 15th day of May, 1879, appellant recovered a judgment at law against John and Benjamin Redmond in the Circuit Court of Coles county, and within a year thereafter an execution was issued on the same, by virtue of which the judgment obtained by appellant became a lien on the lands of John and Benjamin Redmond for the period of seven years. On the 14th of December, 1883, the land in controversy was sold as the property of John Redmond, under au execution issued on such judgment, and was purchased by appellant for the amount of his judgment, interest and cost.

On the 17th of April, 1879, about a month before the judgment of appellant became a lien upon the land of John Bedmond, he attempted to convey, by deed, to his mother, Bachel Bedmond, the west half of the northeast quarter of section thirty-five, town fourteen, north, range eight, east, in Coles county, Illinois, which appellee claims she purchased on that day from her son, John Bedmond, for the sum of twenty-four hundred dollars, but the scrivener who wrote the deed made a mistake in describing the land which the parties intended should be conveyed, he describing it as the east half instead of the west half of the northeast quarter of the section. This deed, shortly after its execution, was recorded as executed, and about the 1st of August, 1881, or about the time of the discovery of the mistake in the description of the land, the same scrivener who committed the original mistake attempted to correct it by erasing the word “ east ” and inserting the word “west” in the deed which he originally drew, and the deed as thus attempted to be corrected was again recorded.

At the time John Belmond attempted to convey the land to appellee, it was occupied by Benjamin Bedmond, and appellee resided on a farm near by. A few days after she purchased the land she moved some quilts, double coverlets and a rocking chair into a bedroom not occupied by her son, Benjamin, which he was willing she should use. After she had purchased the laud and before the 15th day of May, 1879, she took up some shrubbery and pie plant roots and moved them from where she was living to the land she purchased, also rose bushes, peonies, pinks, and some currant bushes, and trimmed and trained up on wires her grape vine. She took actual possession of the land and commenced residing in the house on the premises a few days before the 1st day of January, 1880, but several months after the judgment of appellant had become a lien on the land.

On the case, as made by the evidence, the court below decreed that the judgment obtained by the said John Hoover Was no lien upon the land in controversy as against appellee, and that the levy, sale and purchase were null and void, and that said John Hoover should be forever enjoined from taking out any deed Under his certificate of purchase, and pay the Costs.

To reverse this decree, appellant prosecutes this appeal.

On the trial in the circuit court, appellee was sworn as a witness, and testified to actual notice given by her to appellant, while the latter, who was also sworn as a witness for himself, testified with equal directness and as positively that he had never received any notice from appellee, or any one else, that Mrs. Bedmond had purchased the land in controversy, or had any interest whatever in the same.

On the question of actual notice; the evidence being, as we conceive, equally balanced, it remains to be determined whether the decree of the court below can be sustained on the ground that appellee had such possession of the premises at the time appellant’s judgment became a lien upon thejland, as put him and all others dealing with the property upon inquiry, which, if properly prosecuted, would have led to the knowledge of appellee’s claim of title to the land and of the mistake made in the description of the land in the deed under which she claimed to hold the premises in controversy.

The law°in this State is, that notice by possession of the premises, to be sufficient, must be of that open, visible character which from its nature is calculated to apprise the world that the property has been appropriated and is occupied; also who the occupant is, or from which the occupant may be readily ascertained. It must be of such a. character as, in its nature, is calculated to arrest the attention, and put any other person claiming title, upon inquiry. Truesdale v. Ford, 37 Ill. 210; Keys, impleaded, etc., v. Test, 33 Ill. 316; Strong et al. v. Shea et al., 83 Ill. 575.

Such actual, notorious and visible possession of premises is sufficient notice to a subsequent purchaser, either at a private or judicial sale, of the occupant’s interest and title. Phillips v. Pitts & Co., 78 Ill. 73.

When the judgment of appellant became a lien on the land of John Bedmond, appellee was residing with her family on another farm in the neighborhood, and the land in controversy was actually occupied by Benjamin Bedmond, and was in his open and visible possession. There was nothing to indicate to appellant or any other person who might wish to purchase the land, that appellee claimed any interest or title whatever to the premises. The few acts she did while residing with her family on another farm in the neighborhood, such as removing shrubbery, rose bushes, currant bushes and the like, and putting a few things in one of the rooms of the house on the premises occupied by Benjamin Bedmond, which a stranger might reasonably suppose belonged to the family in possession, was not such an open, visible, notorious and exclusive possession as was calculated to inform persons in the vicinity and those seeing the property, that some person had appropriated it and was using and occupying it for his own use. These acts were not calculated to arrest attention and put prudent and careful persons on inquiry to ascertain whether the person doing such trifling acts had any claim or title to the land upon which they were done. Had it been shown that Benjamin Bedmond, who was in the actual possession of the land at the time it is claimed to have been sold by John Bedmond to appellee, was the tenant of appellee, then his possession as such tenant would have been her possession, and inquiry should have been made of him, and if so made, appellant would have obtained full knowledge of the claim of appellee to the land, and of the mistake made in the deed conveying it to her. But no proof of such tenancy was made.

We think the evidence fails to show that appellee had such possession of the premises as put appellant on inquiry, and that failure.to make such inquiry does not deprive him of the character of an innocent purchaser. The evidence therefore fails to sustain the decree of the court below, and it must be reversed and the cause remanded.

Decree reversed.


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    George H. Cox. v. Henry Keiser.
    1. Taking a note foe a debt—Extending time of payment —Taking a note or acceptance for a pre-existing debt extends the time of payment of such debt until the maturity of the note or acceptance and suspends the remedy of the creditor until the maturity of the note or bill.
    2. Mechanic’s lien—Debt not due.—A petition for a mechanic’s Hen, filed by appellee October 26, 1882. Appellee had made repairs on A's mill and in settlement, July 1, 1882, accepted three drafts payable respectively in two, four and six months. In September, 1882, A conveyed the premises to appellant. These acceptances were not received by appellee in absolute payment. He deposited them in a bank and they were credited to him on his account and in his bank book. He indorsed them to the bank, but as they fell due and were not paid he took them up. On the trial appellee produced the three acceptances and proved that he had paid the money hack to the bank for them after he had filed his petition in this case. Held, that the claim of appellee was not due when he filed his petition for a mechanic’s lien, and it was error for the court to decree him a lien on the premises in controversy and for a sale of the same.
    Appeal from the Circuit Court of McLean county; the lion. O. T. ¡Reeves, Judge, presiding.
    Opinion filed November 21, 1884.
    Messrs. Williams, Burr & Capen, for appellant;
    that taking a note or acceptance at a future day for a debt extends the time of payment of the debt and suspends the remedy for its collection until the maturity of the note or acceptance, cited Happy v. Mosher, 48 N. Y. 313; McCreary v. Carrington, 35 Ala. 689; Wilbur v. Jerneyon, 11 R. I. 113; Mowring v. Mobile Ins. Co., 27 Ala. 254; Smith v. Owens, 21 Cal. 11; Hall v. Richardson, 16 Md. 396; Black v. Zacharie, 3 How. (U. S.) 527; 2 Addison on Contracts, *1200.
    Messrs. Herrick, Lucas & Spencer, for appellee;
    that when the notes were taken there was an implied agreement that if not paid at maturity appellee might surrender them and sue oil the original contract, and when there was a default in any material part of the contract appellee had the right to rescind the entire contract, cited Shaffner v. Killian, 7 Bradwell, 620; Bannister v. Read, 1 Gilm. 92; Carney v. Newberry, 24 Ill. 203; Dobbins v. Higgins, 78 Ill. 440; Withers v. Reynolds, 2 B. & Ad. 882; Franklin v. Miller, 4 Ad. & Ill. 599.
    Even if the notes had become the property of the hank that would not be a waiver of the lien, if they were produced on the trial: Bayard v. McGraw, 1 Bradwell, 141; Ruch v. Fisher, 8 Phila. 44; Graham v. Holt, 4 B. Mon. (Ky.) 87; Kean v. Dufreuse, 3 S. & R. 233; Oliphant v. Church, 7 Harris, (19 Pa. St.) 318.
   Davis, J.

This was a petition for a mechanic’s lien filed by appellee on the 26th day of October, 1882, against Thomas J. Cox et al.

Thomas J. Cox was the owner of a flouring mill and Keiser was a millwright in Bloomington. Keiser commenced on the 20th of April, 1882, and from that time until the 19th of June, of same year, did certain repairs and applied certain machinery for this mill, amounting in the aggregate to the sum of §850, under the orders of Thomas J. Cox. Ho specific contract as to price was made between the parties, but appellee was to receive what said labor, repairs and improvements were reasonably worth, and they were to be completed, furnished and put in within a reasonable time. Ho time was specified in the contract when payment should be made for such work and materials, but on the 1st day of July, 1882, appellee and the said Thomas J. Cox had a settlement, and Oox on that day accepted three drafts drawn on him by appellee for 8283.33 each, with interest, one payable in two, one in four, and the other in six months after date. These acceptances were not received by appellee in absolute payment. He deposited them with the People’s Bank, of Bloomington, and the bank credited him with the full amount of them on his account and in his bank hook. He indorsed them to the bank, bnt as they fell due and were not paid he took them up. They were in the hands of the bank at the time of the commencement of this suit.

On the 12th of September, 1882, Thomas J. Oox conveyed by warranty deed the premises in controversy to appellant.

On the trial appellee produced the three acceptances which he had taken from Thomas J. Cox on the settlement, and proved that he had paid the money back to the bank for them after he had filed his petition in this case.

On the hearing the court below found the issues for appellee, and rendered a decree in his favor for $795 and a lien on the premises in controversy. To reverse the decree the case is brought by appellant to this court.

It is claimed by appellant that when proceedings were commenced by appellee to enforce the lien in this ease the debt was not due, for that appellee, by taking the three acceptances of Thomas J. Cox, due at a future day for the amount found due on settlement, suspended the right of appellee to enforce his lien until the maturity of the notes.

Sec. 1, of chapter 32, entitled Liens, Revised Statutes, page 717, provides, among other things, that the person who furnishes labor, materials or services to the owner of land, shall have a lien upon such land for the amount due to him for such labor, material or services. By this section it seems that to entitle a party claiming a lien to file a petition to enforce it, his debt must be due. If his debt is not due he can not commence the proceeding originally. He must wait until some party entitled to a lien commences a proceeding, when, under section 16 of same chapter, page 718, he may become a party and have his claim allowed, subject to a reduction of interest from the date of the judgment to the time such claim is due or payable. Was appellee’s claim due when he filed his petition in this case for a lien?

In the cise of Happy v. Mosher et al., 48 N. Y. 313, it was held that taking a note upon time for an antecedent debt does not operate as payment of the debt for which it was given, but it always has the effect of extending the time of payment of the debt until the note matures, and until its maturity no suit could be brought upon it.

In McCrary v. Carrington, 35 Alabama, 698, it is held, the only effect which the giving by a debtor of his bill of exchange for a pre-existing debt, has upon such debt, is to suspend the creditor’s remedy upon it until the maturity of the bill.

The rule in ¡Rhode Island is, giving a note for a precedent debt does not prima faeie operate as absolute payment of the debt, but rather as an extension of credit or as only conditional payment; and if the note at maturity is not paid, the right to sue the original debt and enforce its securities revives. Wilbur et al. v. Jernegan et al., 11 Rhode Island, 113.

In Black et al. v. Zacharie & Co., 3 Howard (U. S.), 433, the facts were that Black had sold on account of Zacharie & Co. a cargo of sugar and molasses, and the supposed debt for which the attachment in the case was issued was for the proceeds of the same. One question arising in the case was whether at the time of the commencement of the suit of Zacharie & Co. there was any debt due to them upon which the attachment could, under the circumstances, be maintained. Justice Story in delivering the opinion of the court said, “It is plain to us that there was no debt due to Zacharie & Co. at the time when the attachment was made. The supposed debt was for the proceeds of a cargo of sugar and molasses, sold by Black on account of Zacharie & Co. Assuming those proceeds to be due and payable, Zacharie & Co. had drawn certain bills of exchange upon Black, which had been accepted Jby the latter for the full amount of those proceeds, ahd all of those bills had been negotiated to third persons, and were then outstanding, and three of them were not yet due. It is clear upon principles of law that there was a suspension of all right of action in Zacharie & Co., until after those bills had become due and dishonored, and were taken up by Zacharie& Co. It amounted to a new credit to Black for the amount of those acceptances, during the running of those acceptances.”

Chitty in his work on Contracts, page 1134says: “Where the creditor accepts a bill or note on account of his debt, it is held to be taken by him as a qualified or conditional payment, and accordingly during the currency thereof, the original remedy is suspended or in abeyance.”

We are aware that some courts have held differently, but we are inclined to uphold the doctrine that the taking a note or acceptance for a pre-existing debt extends the time of payment of such debt until the maturity of the note or acceptance taken, and suspends the remedy of the creditor until the maturity of the note or bill.

In this case, therefore, the claim of appellee was not due when he filed his petition for a mechanics’ lien, and the court erred in granting him a decree for a lien on the premises in controversy, and for a sale of the same. The decree must be reversed and the cause remanded.

Decree reversed.

MoOullotjoit, J., dissents.