author: Mr. Justice Willis'

text:
    Bragio Bartoletti et al., Plaintiffs in Error, v. Henry Hoerner et al., Defendants in Error.
    Gen. No. 5106.
    1. Evidence—attorneys as witnesses. An attorney of record In a cause Is not for that reason disqualified as a witness for his client; his relation to the controversy only affects his credibility.
    2. Evidence—what not hearsay. Where a party in interest has referred to a third person as having a matter in charge and states that such person can tell with respect to such matter, the statements of the person so referred to become original evidence.
    3. Conveyances—what essential to establish deed as mortgage. While a deed absolute on its face may he shown by parol to be a mortgage, the law will presume, in the absence of proof to the contrary, that such a deed is what it purports to he—an absolute conveyance. He who claims such a conveyance to he a mortgage, must sustain his claim by proof which is sufficient to overcome such presumption of the law, and by proof which is clear, satisfactory and convincing. A deed absolute on its face will never he construed as a mortgage unless an obligation existed between the parties to the deed which the grantee therein might enforce.
    Bill in equity. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 13, 1910.

      Statement by the Court. This was a bill in equity filed by Bragio Bartoletti, in behalf of himself and the other plaintiffs in error, to have a deed of certain lots therein described made to defendant in error, Henry Hoerner, declared to he a mortgage, and for the right to redeem therefrom. The bill alleged that plaintiffs in error purchased from John H. Quinn and wife, September 27, 1904, lots four, five, twelve and thirteen in block ten, in La Salle Center Addition to Peru, for $2,850; that Quinn and his wife gave them a bond for a deed and $500 was paid; that they entered into and are still in possession of said premises; that they made improvements thereon to the extent of about $2,000; that the premises are now worth about $6,000; that after the execution and delivery of the bond, Quinn died; that prior to his death no further payments were made; that about three months before the filing of the bill, Walter H. Pan-neck, who was acting for defendant in error Hoerner, knowing the plaintiffs in error were anxious to borrow money to pay the balance of the purchase price, sent for plaintiffs in error, Amedeo Picchiono and Bragio Bartoletti, and represented to them that Hoerner would loan them sufficient money to pay the balance of the purchase price of said .lots, and also pay a certain mechanic’s lien of $900 thereon in favor of W. H. Hunter, provided plaintiffs in error would assign their interest in said- bond for a deed to him, and that thereupon he would pay the balance due to the Quinn heirs on said purchase, and take to himself a deed of said property, and hold the same as security for the money so advanced by him; that relying upon such statement, plaintiffs in error assigned their interest under said bond to Hoerner, who paid the balance due and the mechanic’s lien, and received a deed from the Quinn heirs; that plaintiffs in error were, at the time of the delivery of the deed to Hoerner by the Quinn heirs, conducting a saloon on a portion of said premises, and that Hoerner was interested in a brewing company; that shortly after the delivery of the deed to him, he notified plaintiffs in error that they must use the beer manufactured by this company exclusively, which they refused to do; that thereafter a beer driver of the brewery company with which plaintiffs in error had a running account, wrote in the back of their beer account book, “Bent for September, 1907, $50.00” without the knowledge or consent of plaintiffs in error; that they immediately notified Hoerner and the brewing company that they would not continue the use of their beer, and requested a statement from Hoerner of the amount paid by him to the Quinn heirs and Hunter; that he refused to furnish the same; and fraudulently claimed to be the owner of said premises in fee; that he instituted forcible entry and detainer proceedings before a justice of the peace of La Salle county, and by falsely swearing, obtained judgment against plaintiffs in error for possession of said premises; that said justice, at the request of defendant in error and his attorney, Panneck, fixed the appeal bond at $1,000 which plaintiffs in error were not able to furnish; that unless an injunction issue at once without notice, .restraining the defendants in error from proceeding under said judgment, plaintiffs in error would be dispossessed, and their rights unduly prejudiced. The bill further alleged that the $500 paid Quinn was deducted from the purchase price of $2,850 when Hoerner advanced the money; that while the deed was an absolute deed upon its face, it was not intended to be such by plaintiffs in error, but- on the contrary, it was expressly understood and agreed between plaintiffs in error and Hoerner, that the premises thereby conveyed should be held as security for the moneys advanced to pay the Quinn heirs and Hunter, and that upon the payment to him at any time thereafter, of the money so advanced, he would reconvey said premises to plaintiffs in error by an absolute deed; that plaintiffs in error had arranged for, and were willing to pay defendant in error, Hoerner, all that was dne him under the terms of said agreement together with interest thereon, upon the amount being ascertained; that plaintiffs in error had an equity to the value of $2,500 in the premises, out of which defendant in error Hoerner was trying to defraud them. The bill prayed that the deed from the Quinn heirs be decreed a mortgage; that the court decree the amount due, and that, upon payment thereof, Hoerner be compelled to convey the fee of said premises to plaintiffs in error; that because of the inability of plaintiffs in error to furnish bond, an injunction issue without bond and without notice, restraining Hoerner from taking any action under the judgment in the forcible entry and detainer proceedings, and restraining the issuing of a writ of restitution by defendant Huber on said judgment, and the bill concluded with a prayer for general relief.
    An injunction was issued in accordance with the prayer of the bill, and a motion to dissolve the same was overruled, whereupon, defendant Hoerner answered the bill, admitting that plaintiffs in error purchased the property from Quinn and wife for $2,850 on September 27, 1904; that a bond for a deed was made to plaintiffs in error, and $500 paid on the purchase price at that time; that they entered into possession of the property, and were still in possession of the same, and had made valuable improvements thereon, but denied that they amounted to $2,000, and averred that they were made on credit; that a mechanic’s lien was put upon said premises to secure the payment of said improvements, and that said defendant, Hoerner, paid said lien in full out of his own funds; denied that the property was worth to exceed $4,500; denied that Walter A. Panneck was authorized to arrange for him as alleged in the bill, and denied that he held the property as security for moneys advanced to or in behalf of plaintiffs in error; and the answer alleged that plaintiffs in error requested him to start them in the saloon business, and procured saloon fixtures from him; that he gave them credit until they were heavily indebted to him; that they told Mm they were behind in their payments on said premises, and suggested that he take an assignment of their contract, letting the $500 paid thereon wipe out the indebtedness to him, which was in excess of the $500, and that he completed the purchase as his own property, and that they should have the first chance to rent the property; that he replied that if the property would not cost $4,000 exclusive of said indebtedness, he would accept the proposition; but insisted that plaintiffs in error secure a lawyer and ascertain the amount due upon said premises; "that they secured Walter A. Panneck to act for them, and that he reported to Hoerner that the amount due to Quinn was $2492.64 and that there was a mechanic’s lien for $1,200 on the same, making a total of $3,744.75; that he paid said sum, and received a deed from the Quinn heirs for said property; and that prior to making said payment, plaintiffs in error, by their then attorney, Panneck, assigned said contract for a deed to him; that he gave them credit upon the books of the brewing company for $1,125; that thereafter he notified plaintiffs in error that they must handle the beer of said brewing company exclusively. The answer denied that said money so paid was a loan, and that said deed was intended as a mortgage; and alleged that since August 27, 1907, he had paid $24.34 insurance, and about $20 taxes on said premises; and admitted that in September, 1907, plaintiffs in error refused to take any beer from said company, and demanded a statement of the exact amount paid by defendant to the QMnn heirs and Hunter; that he refused to furnish such statement, because plaintiffs in error knew the amounts; and that, though urged to pay the rent for said premises, they had failed to do so; and also denied that he gave false testimony before the justice, and that he fraudulently claimed to be the owner of the premises in full; also that said deed was intended to be a mortgage as security for said sums of money advanced by him; and alleged that he was the owner in fee of said premises; that he bought the same in good faith, and did not hold it as security for any sums of money advanced to plaintiffs in error; that they had no interest in the same equitably or otherwise; and denied all unlawful combinations, etc., and admitted that he began forcible entry and detainer proceedings for possession of said premises and obtained a judgment.
    There was a trial, and at the conclusion of the evidence of plaintiffs in error, defendants in error moved the court to exclude, first, the testimony of Thomas N. Haskins on the ground that he was an attorney in the case; second, all the testimony of said Haskins as to conversations had with persons other than defendant in error, Hoerner, out of his presence; and also all the testimony of the witnesses Bartoletti and Picchiono as to conversations had by or with them out of the presence of defendant in error, Hoerner. The court sustained the motion to exclude the testimony of the witness Haskins, and that of plaintiffs in error as far as a conversation with Panneck was concerned. The court also excluded all the evidence, dissolved the injunction, and dismissed the bill for want of equity, and complainants sued out this writ of error.
    Butters & Armstrong, for plaintiffs in error.
    Browne & Wiley, for defendants in error.
   Mr. Justice Willis'

delivered the opinion of the court.

The evidence shows that Thomas N. Haskins, who testified in behalf of plaintiffs in error, had been their attorney of record until four or five days before the trial, but that did not disqualify nor render him incompetent to testify in their behalf. Bishop v. Hilliard, 227 Ill. 382. Ñor would he have been disqualified had the record shown that he was their attorney at the time of the trial. It could only have affected his credibility. Glanz v. Ziabek, 233 Ill. 22; Domm v. Hollenbeck, 142 Ill. App. 439. It was error to exclude Haskins’ testimony. There was, evidence showing, that upon plaintiffs in error, Picchiono and Bartoletti, telling Haskins that they understood Hoerner had a deed to the property, Haskins asked Hoerner over the phone about it, and Hoerner referred Haskins to Panneck, and stated that Panneck had the matter in charge, and could tell him all about it. This made Panneck, Hoerner’s agent or representative. Therefore, the testimony as to Haskins’ conversation with him was competent, as was that of plaintiffs in error, Picchiono and Bartoletti. Panneck’s statement was in the nature of original, and not hearsay evidence, relating to the ultimate fact to be proved, and not some other fact. Greenleaf on Evidence, vol. 1, sec. 113. ‘1 The admissions of a third person are also receivable in evidence against the party who has expressly referred another to him for information, in regard to an uncertain or disputed matter.” Greenleaf on Evidence, vol. 1, sec. 182. It was therefore error to exclude conversations of Haskins, Bartoletti and Picchiono with Panneck, had out of the hearing of Hoerner.

All the documentary evidence shows Hoerner to be the absolute owner of the property. The assignment of the contract or bond for a deed was unqualified. The deed from the Quinn heirs to Hoerner was absolute, and Hoerner had a final judgment against plaintiffs in error for the possession of the premises.

“It is true, that a deed, which is absolute on its face, may be shown by parol to be a mortgage, but the law will presume, in the absence of proof to the contrary, that such a deed is what it purports to be —an- absolute conveyance. He who claims such a conveyance to be a mortgage, must sustain his claim by proof which is sufficient to overcome such presumption of the law, and by proof which is clear, satisfactory and convincing.” Helm v. Boyd, 124 Ill. 370; Williams v. Williams, 180 Ill. 361.

The proof shows that about three minutes after Hoerner told Haskins that Panneck had the matter in charge, and could tell him all about it, and before Haskins had conferred with Panneck or plaintiff in error, Hoerner called Haskins and stated to him that he had the deed to the property before him, and that it was a straight deed to himself. This might modify the effect of his former statement. Later, Haskins met Panneck on the street, and said, “Does Hoerner claim to own this property or does he simply hold the deed as security?” and Panneck said, “He is simply holding it for the money advanced.” Upon being asked to furnish a statement of the amount due, he told Haskins he would furnish it later, but could not at that time. While the proof shows that Hoerner said Panneck acted for him, yet two of plaintiffs in error who were present when the contract was assigned to Hoerner, testified that Panneck, who attended to the assignment, was their lawyer at that time, and had been for some time before. There was nothing in the conversation between Haskins and Pan-neck to show that plaintiffs in error promised to pay Hoerner the money advanced. There is some evidence tending to show that the assignment was intended to secure the money Hoerner had advanced, and there is proof that after Wiley became Hoerner’s attorney, he furnished Haskins with a copy of a statement of the account made by Hoerner; but there is no evidence that plaintiffs in error ever offered to, or promised to pay the same, or any part thereof. Hoerner claimed that plaintiffs in error were largely indebted to him at the time of the assignment of the contract for other matters. Plaintiffs in error admitted that they owed him something on account of license, beer, etc, He paid the Quinn heirs the balance due on the contract, and Hunter the amount of the mechanic’s lien; and there was some evidence of an agreement, that, if plaintiffs in error paid him these advancements, and the debts they owed him, they would receive a deed.

In any view that can be taken of all the testimony, including that which the court excluded, it does not appear that there was any agreement on the part of the plaintiffs in error to do anything, or to pay any money, and the assignment of the bond does not secure any debt. A mortgage is security for a debt or obligation, and an incident thereto, and it is therefore held that a debt or obligation of some kind is an essential element in a mortgage. There is no contention on the part of plaintiffs in error that there is in existence any debt or obligation which Hoerner can enforce against them. He holds no note, or any other evidence of indebtedness against them, and their proof shows that the only debt he held against them, his book account which they owed him, he gave them credit for on his books before this assignment was, in fact, made to him.

It is held in Burgett v. Osborne, 172 Ill. 227, that one seeking to show that a deed absolute in form was intended as a mortgage, must prove that an obligation existed between the parties to the deed, which that instrument was intended to secure. Plaintiffs in error do not contend that there is any obligation in existence that defendant in error can enforce against them, nor do they contend that they have made any payments to defendant in error, or attempted to make any to apply on any such indebtedness. There being no debt which Hoerner could enforce against plaintiffs in error, there was nothing which a mortgage could secure. In Batcheller v. Batcheller, 144 Ill. 475, the court said: “The burden was upon appellants to prove that this agreement was in fact a security for a subsisting indebtedness. It is not enough that the proof shall merely show a parol agreement to re-convey ; there must be a continuing valid indebtedness secured by it, which may be enforced by appellee in an action at law, or it is not a mortgage, whatever else it might be.”

In view of the conflict in, and uncertainty of the evidence in this case, it cannot be said that there is any clear, satisfactory and convincing proof as to the execution of the deed for the purpose of securing any indebtedness. Whether a deed absolute is a mortgage or not is a question which depends upon the intention of the parties, to be ascertained from all the circumstances of the case. It must be made to appear clearly that such a conveyance was intended to be a mortgage at the time of its execution. Burgett v. Osborne, supra. We find no evidence in the record sustaining the theory that the parties intended the deed in this case to be a mortgage, and the court did not err in dismissing the bill for want of equity at the close of plaintiffs in error’s proof.

The bill was not framed to seek specific performance of a contract of sale, and hence no relief of that kind could have been granted, even if warranted by the proof.

The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Ethelbert C. Richmond, Plaintiff in Error, v. City of Marseilles, Defendant in Error.
    Gen. No. 5134.

      Stkeets—when declaration charging injury does not state cause of action. Held, that the declaration in this case did not set up a cause of action in that it did not sufficiently allege that the place where the accident occurred was a public street in the possession and control of the city.

      Action in case. Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Rehearing denied April 13, 1910.
    Browne & Wiley, for plaintiff in error.
    Peter M. McArthur and Butters & Armstrong, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action of trespass on the case brought by Ethelbert C. Richmond, in July, 1907, against the city of Marseilles and Simon T. Osgood, for injuries alleged to have been sustained by reason of a defective sidewalk. To an amended declaration containing two counts, the city of Marseilles demurred. The demurrer was sustained and plaintiff below elected to abide by the amended declaration. There was a judgment dismissing the cause as to the defendant, the city of Marseilles, at plaintiff’s costs. A writ of error was sued out of this court by the plaintiff, which was dismissed for the reason that the suit was still pending in the court below as to the defendant Osgood. Thereafter the suit was dismissed as to Osgood and this second writ of error sued out.

The only question for our consideration is whether the amended declaration stated a cause of action against defendant in error, the city of Marseilles. The first count alleged that Osgood, prior to July 9, 1907, owned and possessed certain lands in the city of Marseilles, and laid out over said lands, a street, and did permit and give license to the people of said city of Marseilles and the public in general to use and pass over said street, and all parts thereof, and kept said street open for the passage of vehicles and pedestrians, and gave the city full and complete use and joint possession of said street; and that the city and Osgood . were possessed of and had control of a certain public sidewalk on said street, and that it was the duty of the city and Osgood to keep said sidewalk in safe repair, and yet they wrongfully and negligently permitted it to be and remain in a broken, dangerous and unsafe condition in a certain place for the passage of pedestrians; and that defendant knew the condition of said sidewalk at the time plaintiff was injured, or by the exercise of ordinary care could have known thereof; and that plaintiff, while exercising due care for his own safety while walking along and upon said sidewalk, unavoidably broke through said unsafe place with his left foot and leg, and was then and there thrown violently to the sidewalk and thereby injured.

It will be observed that this count charged that Osgood owned the land and laid out- the street, and that he kept it open for public use. It alleged that he gave the city full and complete use and joint possession thereof. This does not amount to an averment that Osgood dedicated and the city accepted the land over which the street was laid as a public highway. “To make a sufficient dedication, the proprietor of the soil must devote the portion thereof intended for public use to such use, and on the part of the public it must be accepted and appropriated.” City of Chicago v. Chicago, Rock Island & Pacific Ry. Co., 152 Ill. 561. We are of the opinion that the count having alleged that Osgood laid out the street on his own land, and tendered it to the city, to have made a sufficient statement of the case when tested by demurrer, it should have alleged that the city accepted the street, in order to make the city liable. Without such an averment, we do not think a case was stated in this count, or that the lack was supplied by alleging later that the city and Osgood were possessed of and had control of the sidewalk on said street. For all that we can see the pleader was relying upon some implied possession or implied control because Osgood had offered the street to the city. A city cannot be made liable merely because an owner of land has subdivided it, laid out a street through it, and opened it so the public can travel over it; but to make it liable to keep the street in repair as a highway, it must appear that the city has accepted the dedication or has taken charge of and repaired the highway by the proper authorities. Gentlemen v. Soule, 32 Ill. 271.

The second count contained no allegation that Osgood laid out a street across his own land and tendered it to the city, but alleged that there was a public street in the city of Marseilles called and known as "Osgood’s hill” or "Osgood’s driveway,” describing its location, and that the city and Osgood were possessed of, and had control of a public sidewalk on said street; and their duty to keep said sidewalk in a good and safe condition and repair; and that the city and Osgood negligently suffered it to be and remain in an unsafe condition and repair for a long space of time, and knew, or, by the exercise of reasonable care, could have known of that condition; and that by reason thereof the plaintiff was injured while in the exercise of due care for his own safety. This count contained all the elements necessary, if sustained by proof, to make a case against defendant in error, and the averment that Osgood had joint possession with the city, of the sidewalk, did not render it obnoxious to demurrer.

For the reasons indicated, the court properly sustained the demurrer to the first count of the amended declaration and erred in sustaining the demurrer to the second count. The judgment is therefore reversed and the case is remanded with directions to overrule the demurrer to the second count of the amended declaration.

Reversed and remanded.


text:
    Joseph Foss, Appellee, v. F. O. Hawley, Appellant.
    Gen. No. 5151.
    1. Appeals and ebbobs—when assignments of error waived. An assignment of error not argued is deemed waived.
    2. Verdicts—when not disturbed. If two juries have found the same way the Appellate Court will be slow to disturb the second verdict as against the weight of the evidence.
    Assumpsit. Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Sltjsseb, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 13, 1910.
    A. H. Switzer, for appellant.
    Bekjamiw F. Hebbthgtob", for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit in assumpsit brought by appellee against appellant before a justice of the peace of Kendall county to recover a balance of $110.73 claimed for work and labor performed, and for board and lodging furnished the hired men of appellant. There was a verdict and judgment for $87.73. On an appeal to the Circuit Court of said county, appellee obtained a verdict of $100.73. A motion for a new trial was made, and, upon the suggestion of the court, appellee remitted $15 from the verdict. The motion for a new trial was denied and judgment was entered for $85.73 from which appellant appealed to this court.

Neither party requested instructions. The assignment of error predicated on an exception taken to the admission of incompetent evidence was not argued and was therefore waived. W. St. L. & P. Ry. Co. v. McDougal, 113 Ill. 604; Case v. Phillips, 182 Ill. 187; Keyes v. Kimmel, 186 Ill. 109. The only question presented is that raised by exception to the denial of the motion for a new trial, i. e., does the evidence sustain the judgment?

That appellee worked for appellant upon his farm and lodged and boarded other of his hired men and boarded appellant and his son, and men employed by appellant in threshing and shelling corn, is not denied; that appellee' was to receive $30 per month, the use of a house and garden, firewood, and the milk of one cow is admitted. The difference arises over the number of men for whom board and lodging was furnished, the time appellee worked for appellant, and the amount due. Appellee claimed that he furnished board and lodging for two for a given period, and that he worked seventeen months and that, there was still due him $100.73. Appellant contended that he engaged to pay for the board and lodging of but one and that appellee worked a week less than seventeen months and that he had overpaid him. Both parties introduced their book accounts of the transaction, but unesplained; neither furnished a true statement of the account between them. Appellee testified to the accuracy of his account, and was in a measure corroborated by his two sons. Appellant testified to the correctness of his account, and there was some corroboration by parties upon whom he had given appellee orders in payment for his services. Appellee testified in rebuttal that two of the orders that appellant contended were given to him, were chargeable to his two sons who worked for appellant, and received orders from him, and on this point there was corroborating evidence from his two sons. One item of credit sought by appellant, and disputed by appellee, was the rental of a house owned by appellant and occupied by appellee prior to services rendered on the farm. Appellant claimed that appellee lived in it seventeen months, and was to pay $5 per month, but paid nothing. Appellee testified that he lived in the house only eleven months, and that the agreement was that he was to build corn cribs to pay for the rent; that appellant never had any corn cribs for him to build, and that he never paid any cash rent, hut made repairs enough on the house to pay the rent.

The evidence seemingly preponderates in favor of appellee’s contention. Two juries have decided the conflict in his favor. The trial couyt who saw the witnesses, and heard them testify has approved their finding, and we must decline to disturb their verdict.

The judgment is affirmed.

Affirmed.


text:
    Northwestern Elevator & Grain Company, Appellee, v. R. R. Smiley, Appellant.
    Gen. No. 5175.
    1. Instructions—what complaints cannot be made if court by consent has instructed orally. Where parties consent that the court instruct orally they cannot assign as error the failure of the court to give some instructions not asked which would have been proper and which if asked it would have been error to refuse.
    2. New trial—when newly discovered evidence does not justify. Newly discovered evidence does not justify the award of a new trial if such evidence is cumulative in character, is of an impeaching character or might have been obtained at the trial by the exercise of diligence and if it does not appear likely that its introduction would have produced a different result.
    Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 19, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    L. H. Hanna and Brown & Soule, for appellant.
    Hanley & Cox, and Jack, Irwin, Jack & Miles, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit in assumpsit brought by appellee against appellant to recover damages claimed to have been sustained by reason of appellant’s failure to deliver corn sold to appellee. There was a trial and a verdict and a judgment for appellee for $3,450, which was the difference between the contract price of the corn and the market price at Little York, on May 9, 1908. A motion for a new trial was overruled, and the defendant below appealed.

Appellant admits that on February 10, 1908, he sold appellee, through its agent, Shughart, 20,000 bushels of corn which he had on his farm near Little York, at 49 cents per bushel, to be delivered, as he contends, at appellee’s elevator in Little York as soon thereafter before March 1 as the condition of the roads would permit; and claims that if it could not be delivered by that time, he was to be relieved from the contract, and that the roads were not fit for delivery before the first of March, but were fit from March 30, to the first of May. Appellee contends that the corn was to be delivered as soon as the condition of the roads would permit.

The evidence upon these disputed facts is conflicting, preponderating apparently in favor of appellee, and we shall not disturb the conclusions of the jury thereon, bearing the approval of the trial judge.

Appellee’s proof tended to show that appellant came to Little York on March 20 and April 7, and again on May 2, and perhaps on some other dates before May 9, and that he said that he had not been able to deliver the corn, and would have to have some further time; but that he would deliver it; and that on May 9, he declared that the contract was ended; that he had legal advice that he was not required to deliver, and that he would not deliver.

By agreement of the parties the court instructed the jury orally. Among other things the court instructed the jury that if they believed that the contract had been proved as contended for by appellee, which contention was stated to the jury by the court, and if there was a breach of the same on May 9, by the refusal of appellee to be further bound thereby, then the measure of damages which plaintiff would be entitled to recover was the difference between 49 cents per bushel and the market price per bushel at Little York on May 9, with interest thereon from that date to the date of the verdict at five per cent per annum. As it is not argued that there was error in this reference to interest, there is no question to be considered concerning it. Appellant makes a number of objections to the instruction, contending among other tilings that it was error to refer to the 9th of May as the date when the jury might find a breach of the contract because there is evidence tending to show that the condition of the road was such that the corn could have been delivered on March 20, and that there is no evidence that it could not have been delivered at various other times after March 20. Appellee’s proof was such that it was entitled to an instruction telling the jury that if they found a breach on May 9, that would be the date for fixing the damages; and if written instructions had been asked, and such an instruction offered, it must have been given. Appellee may also have been entitled to an instruction telling the jury that if they believed that the state of the roads was such on March 20, that the grain could have been delivered, and there was no arrangement or request by appellant for further delay, that the contract was then broken, and the damage should be fixed as of that date. Appellant also introduced evidence, that on March 20, he told Shughart, appellee’s agent, that he considered the contract at an end; and appellant would have been entitled to an instruction fixing the damages as of that date if the jury believed that appellant did on that date so repudiate the contract. Appellant did not call the attention of the court to its failure to instruct on certain features of appellant’s proof, nor request further instructions, nor has he assigned as error that the court failed to give certain proper instructions.

It cannot be the law that where parties consent that the court instruct orally, either party can assign as error the failure of the court to give some instructions not asked which would have been proper, and which, if asked, it would have been error to refuse. To so hold would make oral instructions a trap for the court. The court might fail to instruct on the method of determining the weight to be given to testimony, on the effect of impeachment by contradiction, or on some other principle, but that would not be ground for reversal unless the court refused, when requested, to give such instructions, and that refusal was assigned as error. Here the main question litigated was whether appellant sold the corn to be delivered when the roads were fit, or only sold the corn in case the roads were in such shape that he could deliver it before March 1. There was a strong preponderance of evidence that _ appellant, after March 1, several times said that he was going to deliver the corn, but must have time; and that the final breach occurred because appellant demanded a percentage for the supposed shrinkage of the corn during the delay, which appellee would not concede. The instruction was correct as far as it went, and we are of the opinion that although it was not complete and did not cover every phase of the proof, a reversal is not justified because the trial judge did not instruct on every possible phase of the case which appellant’s testimony tended to establish. We consider that in disposing of this objection to the instruction, all others are answered.

In support of the motion for a new trial on the ground of newly discovered evidence, appellant produced his own, and the affidavits of Andrew Anderson, John Floyd, A. D. Unckles, Henry J. Peterson, Ruth Kerr Smiley and Donald Warwick Smiley. Appellant’s affidavit refers, to an entry in a book in which Re says he reduced the contract to writing at the time it was made, and that he was unable to find the entry ' at the time of the trial because it was raining when it was made, and the pages of the book stuck- together ; that said entry was as follows:

‘1 Felly 10 08 sold Shughart 20000 bu corn to be delivered by 'Mch 1 ’08 provided roads are fit at 49$ Get blankets and keep dry.”

The affidavit also states that Shughart was at appellant’s house, measured the corn and put the measurements down in a book; that Shughart called appellant over the telephone February 29, and inquired what disposition appellant was going to make of the corn, and that appellant did not answer the phone because he was too sick; that Shughart told Andrew Anderson that the corn was to be delivered by the first of March, provided the roads were so it could be delivered; that S. O. Bartlett, a member of the appellee company, in reply to a remark of Henry J. Peterson, that the roads were so bad that appellant could not haul the corn in February, said that they were always willing to extend the time; that in the summer of 1908, Shughart had a conversation with one William Paine in the bank at Little York, which was overheard by the cashier, in which Paine offered to bet a dollar that appellee would lose its case against appellant, and Shughart said, “If I knew what Wray would swear to I wouldn’t be afraid to bet you;” that appellant had a conversation with Abe Haynes . who was near when certain conversation was had between Shughart and appellant regarding the sale of the corn, in which Haynes said that appellant then told Shughart that he wanted the corn off before the farming season commenced. The affidavits of Anderson, Floyd, Unckles and Peterson, were as to the admissions of Shughart and Bartlett referred to in appellant’s affidavit. The affidavit of Ruth Kerr Smiley was to the effect that Shughart was on appellant’s farm February 8, 1908, measuring the corn crib- and making a memorandum; that afterwards Shughart was in the cellar; that on February 29, Shughart called appellant over the telephone while appellant was sick in bed and that appellant did not answer the phone. The affidavit of Donald Warwick Smiley was to the effect that Shughart was on appellant’s farm February 8, 1908, measuring the corn crib and making a memorandum in a book; that after-wards he found Shughart and appellant in the furnace room.

A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, and which is not decisive; or, when there has been a want of proper diligence to procure the evidence on the trial. The nature of the newly discovered evidence in snch cases should be of a kind or quality, as, when considered with all the other evidence, would probably have resulted in a different verdict had it been produced on the trial. Harter v. The People, 204 Ill. 158. The rule is well settled that when the new evidence tends merely to discredit or impeach another witness it will not satisfy the requirements of the law for a new trial. Bemis v. Horner, 165 Ill. 347. No reason is given why Ruth Kerr Smiley and Donald Warwick Smiley, the infant children of appellant, ' were not produced upon the trial, and the entry in the book, upon which great stress is laid, can be as readily construed against appellant as for him, as it contains no suggestion that there was to be no sale if he could not deliver March 1. The entry was peculiarly within appellant’s own knowledge, but he did not testify in regard to making it at the trial, nor did he lay the foundation for the introduction of secondary evidence as to its purport.

In our opinion the alleged newly discovered evidence set forth in the affidavits is not decisive of the issues, raises no new points, tends only to impeachment, is merely cumulative, and by the exercise of proper diligence might have been produced upon the trial. We believe it is not within the rule of what newly discovered evidence must be in order to warrant the court in granting a new trial thereon.

There being no reversible error in the record, the judgment is affirmed.

Affirmed.


author: Me. Justice "Willis

text:
    In the matter of the estate of Cornelius W. Esmond, deceased. Ora B. Esmond et al., Executors, Appellees, v. S. E. Esmond, Appellant.
    Gen. No. 5220.
    1. Administration of estates—enforcement of set-off against distributee. The Probate Court has authority to determine the amount due from a distributee of an estate in course of administration and to authorize the executors to deduct, the amount of such indebtedness from the share of such distributee.
    2. Administration of estates—what constitutes advancement. Held, that a certain writing in evidence in this case was an acknowledgment that certain notes constituted advances to the signer of such writing who was a distributee of the estate in course of administration.
    3. Statute of Limitations—when no defense. The Statute of Limitations is no defense by a distributee to the setting off against his share of an advance received by him from the testator whose estate is in process of administration.
    4. Jury—when party not entitled to as a matter of right. It is not every issue arising in the probate court that entitles a party to a trial by jury.
    5. Juey-—when right waived. If a party is entitled to a jury trial his failure to demand the same operates as a waiver.
    Objections to executors’ report. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the -April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 13, 1910.
    H. M. Kelly a,nd Show & Haight, for appellant.
    Chase Fowler, George P. Hills and Browhe & Wiley, for appellees.
   Me. Justice "Willis

delivered the opinion of the court.

Cornelius W. Esmond died testate, March 16, 1906," leaving him surviving no widow, four sons and two daughters. His will was admitted to probate, April 12, 1906, and two sons were appointed executors thereof. Their inventory filed April 21, 1906, showed that he died seized of about fourteen hundred acres of land and more than $40,000 in notes and accounts. Among the notes were three signed by Samuel C. Esmond, a son, for, respectively, the sums of $1240, $840, and $3,708. The note for $3,708 was dated September 19, 1891, due five years "after date with interest at 5% per annum, on which interest payments were endorsed to September, 1893. A writing in the following words and figures was found among the effects of the deceased:

‘ ‘ State of Illinois, f County of Cook. 1s

Whereas, I, Samuel C. Esmond, have received of my father, Cornelius W. Esmond, certain sums of money, which is evidenced by- three promissory notes, executed by me and delivered to my father, which notes are now held by him; now in consideration of my said father’s foregoing collections of said notes at this time, I hereby agree and consent that the various amounts for which said notes were given, and the interest due thereon, shall be taken .and considered as an advancement to me, and the same to be so treated in the settlement of his, my father’s estate.

Dated November, 1900.

Provided, the $3,708.00 note may be subject to any defense which I may have against said note, on the final settlement of my father’s estate.

(Signed) Samuel C. Esmond. [Seal.]

Acknowledged by J. H. Fowler.”

On March 12, 1907, the executors filed a report in the Probate Court in which they charged these notes against Samuel C. Esmond or deducted the amount from his distributive share. On May 27, 1907, he filed objections to the executors deducting from his distributive share the amount of the $3,708 note. These objections were overruled, the report was approved, and the executors were ordered to deduct the amount of the note from appellee’s share, whereupon he prayed an appeal to the Circuit Court, and filed an appeal bond which was approved. The' Circuit Court dismissed the appeal, and an appeal was taken to this court, where the case was reversed and remanded, on the ground that, had there been a full record of the proceedings of the Probate Court in the Circuit Court, it might have appeared that there was no ground for dismissing the appeal. Esmond v. Esmond, 142 Ill. App. 233. The case was redocketed and a complete record of the proceedings in the Probate Court filed. The motion to dismiss the appeal from the Probate Court was renewed and denied. Thereafter a hearing was had upon appellant’s objections and they were overruled. He again appeals and assigns errors. Cross errors are assigned on the ground that the Circuit Court should have dismissed the appeal ’from the Probate Court. The motion to dismiss was based on the ground that the appeal bond, though filed in time, was not approved by the judge until after the lapse of twenty days.

From the view we take of the case, it is unnecessary to discuss the cross errors assigned.

It is contended that the Probate Court had no power to deduct the amount of the $3,708 note from appellant’s distributive share of the estate; that the executors should have proceeded in a suit at law, and obtained judgment before undertaking to set-off the note against his distributive share; and that by the course pursued, he was deprived of a trial by jury; and that the statute of limitations was a defense.

In support of his contention that the Probate Court lacked jurisdiction to deduct the amount of this note from his distributive share, appellant invokes the rule laid down in 14 Cyc. 121, and cites early Massachusetts and Albany cases, upon which it was predicated, and which are not recognized by subsequent decisions of the courts of those states as authority, since the rule therein announced has been changed in those states by statutory enactment. In Nelson Exr. v. Murfee, 69 Ala. 598, and Tilton v. Tilton, 196 Mass. 562, the reverse of the proposition was held to be the law. In any event, the rule invoked cannot be held to be the law in this state in view of the decisions of our Supreme Court.

Executors have the right, and it is their duty to retain a sum equal to the indebtedness of the distributee of an estate, and apply the same in payment thereof before paying any money on his distributive share. Jeffers v. Jeffers, 139 Ill. 368. Probate Courts have • original jurisdiction in the settlement of estates and may exercise equitable as well as legal forms of procedure. Spencer v. Boardman, 118 Ill. 553; Shepard v. Speer, 140 Ill. 238; Bliss v. Seaman, 165 Ill. 422; Heppe v. Szczepanski, 209 Ill. 88. The Probate Court has jurisdiction to settle all questions in determining the distribution of estates, including advancements and indebtedness of legatees and distributees. Spencer v. Boardman, supra; Shepard v. Speer, supra; Hayward v. Loper, 147 Ill. 44; Ames v. Ames, 148 Ill. 321; Blake v. People, 161 Ill. 74. They have that right even if the indebtedness is barred by the statute of limitations. Hurd’s R. S., sec. 17, chap. 83; 1908, Jeffers v. Jeffers, supra; Steere v. Brownell, 124 Ill. 27.

We hold the court has authority to determine the amount of appellant’s indebtedness to the estate, and ■ authorize the executors to deduct such amount from his distributive share. Jeffers v. Jeffers, supra; Hurd’s R. S. 1908, sec. 66, chap. 3; Hayward v. Loper, supra. If there were any doubt on this subject, it is removed in the present case by the writing signed by appellant November 19, 1900, wherein appellant, in consideration of decedent’s foregoing collection of the notes, agreed and consented that the various amounts for which the notes were given and the interest due thereon should be considered as an advancement and to be so treated in the settlement of his father’s estate, and that the note for $3,708 might be subject to any defense he might have against it upon the final settlement of his father’s estate. This, we hold, allows the matter to be determined in the settlement of the estate in the Probate Court, and is clearly an acknowledgment that the notes were an advancement. Hurd’s R. S. 1908, sec. 7, chap. 39. The statement that the note for $3,708 might be subject to any defense that appellant might have against it upon the final settlement of his father’s estate does not, as claimed by appellant, amount to an assertion that he had a defense to the note, and that it was not to be treated as an advancement, but, in our opinion, means that it was to be treated as an advancement, and that it might be disposed of in the final settlement of his father’s estate in the Probate Court, and if at • that time he had any defense thereto, he might interpose it, notwithstanding that it was then treated as an advancement.

The statute of limitations is no defense to this note. Hurd’s R. S. 1908, sec. 17, chap. 83; Jeffers v. Jeffers, supra. If it were, the agreement of November 19, 1900, is such a recognition of the note and request to forego its collection at that time, that the statute of limitations would not bar its collection. Moreover, the executors had deducted it from appellant’s distributive share, and had filed their report before the expiration of ten years from the time it was due by its face.

Appellant contends that by the course pursued he was deprived of a trial by jury. It is not true that every person under all circumstances has a right to a trial of his cause by a jury. For instance, if one gives his promissory note for a sum of money secured by a real estate mortgage, if he is sued on the note at law he is entitled to a jury; but if a bill is filed against him to foreclose the mortgage he is not entitled to a jury trial, even if the foreclosure may result in a deficiency decree against him and a general execution against his property for the payment of a part of the debt. In Flaherty v. McCormick, 113 Ill. 538, a bill in equity for partition, Flaherty was in possession as a squatter or without any deed or record title, and not under the parties among whom it was sought to have the land partitioned; and he insisted that he was entitled to a jury trial. It was held that a party is only entitled to a trial by jury when the issues arise in a cause where' jury trials are a matter of right, and that in a cause in equity a jury trial is not a matter of right. This decision, based upon Heacock v. Hosmer, 109 Ill. 245, has been sustained and variously applied in Culver v. Colehour, 115 Ill. 558; Harding v. Fuller, 141 Ill. 308; Maynard v. Richards, 166 Ill. 466, and Keith v. Henkleman, 173 Ill. 137.

There are many questions arising in the settlement of an estate in the Probate Court between executors and distributees and heirs and persons holding advancements, including the settlement of the accounts of the executors, which are not of a nature to entitle a party to a jury trial. Probate Courts exercise an equitable jurisdiction in all matters that arise in the settlement of estates. We are therefore not satisfied that appellant had a right to a trial by jury. But section 7 of the act establishing Probate Courts provides that: “The Probate Court shall have the power to impanel a jury for the trial of issues or matters of fact in any matter or matters pending before the court.” Therefore, if the matters relating to this note for $3,708 were such that appellant was entitled to a jury trial, then the Probate Court had power to give him that trial under this section just stated, and so did the Circuit Court on appeal. But he did not demand a jury trial. In Heacock v. Hosmer, supra, it was held that where a party entitled to a jury trial in a civil case did not ask for a jury the right of trial by jury was waived.

We are of opinion that there is no reversible error in the record in the respects alleged by appellant, and therefore, without determining whether the Circuit Court should have dismissed appellant’s appeal from the Probate Court, the order is affirmed.

Affirmed.


text:
    Paul Wysocki, Appellee, v. Mineral Point Zinc Company, Appellant.
    Gen. No. 5095.
    1. Contbibutoby negligence—in connection with use of machinery. In determining the questions of contributory negligence and assumed risk arising by the servant’s employment in connection with the use of machinery, the jury are warranted in taking into consideration the nature of such machinery, its surroundings and location.
    2. Masteb and sebvant—what does not absolve from duty to warn. If a servant has some knowledge of the machinery about which he is employed the master is not absolved from his duty to warn him upon the creation of an extra-hazardous condition if such servant did not possess equal means of knowledge with the master.
    Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinneb, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. The Mineral Point Zinc Company had in the ore crushing building in its zinc plant at Depue, Bureau county, a number of elevators. They were wide belts with ore cups attached, passing over two pulleys fastened on shafting. Seven of these elevators extended into pits below the floor and the crushed ore was conducted to the cups near the floor of the pits through a spout and elevated as the belt moved. Elevator pit No. 2, located in the southeast portion of the building, was twelve feet long east and west by seven feet and eight inches north and south. It had a concrete floor seven feet and five and one half inches below the floor of the building. In the pit the elevator was enclosed in a wooden casing about five and one half feet long and two feet and seven and one half inches wide. There was a space between the casing and the end of the pit of about three feet and three inches. One of the wheels or pulleys over which the belt ran was inside the casing, on a shaft about two and one-eighth inches in diameter, which extended out on the north and south sides of the casing and revolved from fifty-eight to sixty times per minute. Iron bearings for the shaft were fastened on the outside of both sides of the casing and an iron frame holding the bearing with the wheel above, with which to adjust it. There was also a safety collar outside the bearing to hold the shafting in place, with a groove in it, in which was a set screw to hold the collar. At the top and between the safety collar and the bearing, was a cup used to oil the shaft and bearings. On December 6, 1905, Paul Wysocki, an employe of the company, while preparing to oil the shaftings in pit No. 2, had his right hand and sleeve caught under a piece of canvas hung over the shafting and his arm was so injured that later it was amputated. He brought this suit in the Circuit Court of Bureau county to recover damages for the injuries so sustained.
    The declaration charged appellant with the duty of providing appellee with a reasonably safe place in which to work,' and alleged that it failed so to do, also charged appellant with the duty of guarding and protecting the set screw in the collar, and alleged that it negligently permitted said set screw to project uncovered and unprotected from said collar, which condition was known to appellant and not known to appellee. Additional counts were filed containing the averments that appellant ordered appellee into the pit for the purpose of oiling shafting revolving at great speed while said shafting was concealed by a piece of canvas placed there by appellant; and that appellant negligently failed to warn him of the danger; that appellee did not know of, and did not possess equal means with appellant of knowing of such dangerous conditions, and that while carrying out express orders of appellant and in the exercise of due° care for his own safety, he was caught by the set screw and injured. A trial resulted in a verdict for appellee of $8,000. Motions for a new trial and in arrest of judgment were overruled.' Judgment was entered on the verdict and the company prosecutes this trial.
    H. M. and Cairo A. Trimble, for appellant.
    Duncan, Doyle & 0 ’Conor, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Counsel for appellant base their argument for a reversal of this judgment on two grounds only; that appellee was injured by a risk which he assumed, and that his own negligence contributed to the injury. Appellee replies that after creating a new and additional hazard by placing the canvas over the shafting no instruction or warning was given him.

The evidence shows that appellee, a Lithuanian about thirty-five years of age, entered appellant’s employ October 13, 1906, and worked as a common laborer unloading ore, laying track, sweeping floors, etc., until November 26, 1906, when he was set at work as day oiler in the ore crushing building; that on December 6, following, he went into pit No. 2 to oil the machinery and found a canvas over a part of the shafting; that he put his hand under it and tried to unscrew the oil cup; that the canvas caught in the shaft catching his hand and sleeve. He testified that the only instruction he ever received was from appellant’s superintendent Wray when he commenced work as oiler; that Wray told him to grease the machine; that Wray did not show him what machine he should grease; that he received no instructions or warnings of any kind; that he had nothing to do with Miller the foreman; that he never saw the canvas over the bearings until he went into the pit at the ° time he was hurt. Miller testified that he and Wray employed appellee; that he gave him instructions as to his duties and showed him where and how to oil and warned him to be careful; to look out, that it was dangerous; that he thought the canvas was placed over the shafting about the 29th of November; that he did not remember saying anything to appellee about it. Obert, appellant’s night oiler, testified that the canvas was over the bearings about a week before appellee was hurt, and that Miller told him about it when he put it there. Obert was not present at the time of appellee’s injury and claimed that nothing was said to him about the accident or conditions existing at that time, until about a year and a half after the occurrence; that he did not remember when appellee was injured but that appellee had been working as oiler for three or four months before he was hurt. He located the pit in which appellee was injured in the southwest corner of the building, but it was conceded that it was in the southeast. One witness testified that he cleaned out the pit three or four days before the accident and did not see the canvas covering the bearings. Appellant’s superintendent Wray testified that appellee knew but little or no English; that it was necessary to communicate with him in broken sentences and by signs, and to point to objects in talking with him.

The questions of assumed risk and contributory negligence were questions of fact for the jury, since, under the proof, reasonable minds might reach different conelusions. Clark v. Chicago, Rock Island and Pacific Ry. Co., 231 Ill. 548. In the determination of these questions, the jury were warranted in taking into consideration the nature of this machinery, its surroundings and location in a dusty pit seven and a half feet deep substantially taken up by the elevator casing, and the fact that appellant had covered this rapidly revolving shaft with a loose canvas. It was their province to determine the conflict in the evidence as to the length of time the canvas had been there, and as to whether warning and instructions were given appellee. It is plain that appellee was only a common laborer who had no special knowledge of machinery, and it is doubtful if warning was given him when he commenced oiling, and clear that he was not warned after the canvas was placed over the shafting. Even though appellee had some knowledge of the machinery,appellant would not be absolved from its duty to warn him upon the creation of an extra hazardous condition, as appellee did not possess equal means of knowledge with appellant. We think the evidence justified the jury in finding that covering the shafting with the canvas created a new and hazardous risk not incident to appellee’s employment; and that appellee was injured by this risk which he did not assume and of which he was not warned and had no knowledge, and that his own negligence did not in any way contribute to the injury.

The judgment is affirmed.

Affirmed.


text:
    William Lawton, Appellee, v. The Oglesby Coal Company, Appellant.
    Gen. No. 5122.
    1. Master and servant—commands by vice-principal. Where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant, and all commands given by him within the scope of his authority are in law the commands of the master.
    2. Master and servant—zohat risks assumed; what not. A servant not only assumes the ordinary risks incident to his employment, but also the dangers which are obvious and apparent. It is also true that when a servant enters the employment of the master, the ordinary risks of such employment which he assumes, include the negligence of fellow-servants associated with him; but he does not assume the risk of the negligence of employes of the same master who are not associated with him or who are not fellow-servants with him.
    3. Contributory negligence—when question of fact. The questions of contributory negligence and assumed risk are ordinarily questions of fact to be determined by the jury. These questions are never presented to the court as questions of law when the evidence is conflicting or when, conceding the testimony on the part of the plaintiff to be true, with the inferences that may legitimately be drawn therefrom, reasonable men might differ upon the questions whether the injury was caused in consequence of the negligence of the servant or the servant had assumed the risk which was the proximate cause of his injury.
    4. Trial—remarks of counsel. Remarks of counsel not warranted by the evidence if made in reply to what was said by opposing counsel, will not, ordinarily, constitute ground for reversal.
    5. Verdicts;—toñera not excessive. Held, in an action on the case for personal injuries that a verdict for $4,500 was not excessive where it appeared that the plaintiff at the time in question was of the age of 38 years and earned before he was injured from $730 to $780 per year, or from $2.35 to $2.50 per day; that as the result of the accident his hand was seriously injured and his earning capacity much impaired.

      Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. William Lawton, appellee, was a coal miner employed by the Oglesby Coal Company, appellant. For some time prior to May 26, 1906, the mine had been shut down and he had been doing various jobs for appellant about the works and elsewhere above ground. On the morning of May 26, 1906, at a little after seven o’clock, he was put at work with others helping to move, a house for appellant. Two other houses had been previously moved but he had taken no part in that work except to help put timbers under them. They had been moved by rope or cable and tackle. The apparatus and appliances used in the moving of this house consisted of three trucks placed underneath it, two at each of the rear corners and one in the middle of the front. A chain ran from the front truck to each of the rear trucks. The front truck had a bolster and king-bolt arrangement, which allowed it to be turned from side to side by the tongue which extended from it out in front of the house. On the end of the tongue was a drum around which was coiled a rope extending to the front corners of the house with a wheel attachment to the drum allowing it to be turned and the rope wound up on one side and unwound on the other for the purpose of moving the tongue from one side to the other in steering. Underneath the tongue and near the place of its attachment to the truck there was attached a chain to the front truck which ran out a little beyond the end of the tongue and was there attached to the rear pulley wheel. The power was secured from a traction engine which could be started gradually and easily and run an inch or ten feet. About thirty inches from the ground, a steel cable five-eighths of an inch in thickness and 1,000 feet long, was attached to the engine which ran back to the rear pulley wheel, around which it passed from the north to the south side, then ran out to the front pulley wheel and back again to the rear pulley wheel, where it was fastened to the iron frame or fork across the rear pulley wheel. To the other end of the same frame, the chain running from the front truck to the rear pulley wheel was attached. The front pulley wheel was attached to what was called the dead-man, which was made by burying a number of railroad ties lashed together with a chain, which was brought up out of the ground and attached to the fork or framework of the front pulley yheels. The pulley wheels were each three feet and three inches in diameter, made of iron, and had six or eight spokes each. Around the circumference was a groove one and a half inches deep in which the steel cable ran. This made the actual diameter of the wheel between the points of contact with the cable exactly three feet, and the circumference at the same place exactly nine and forty-two one-hundredths feet. The rim of the wheel in which the spokes were set, and in which this groove was made, was two and one-eighth inches deep. The frame or forks of the rear pulley wheel consisted of two pieces of iron about four inches wide and three-fourths of an inch thick, which ran across the center of the wheel, and were fastened together by bolts at the ends and through the center of the wheel. The bolt in the center was the axle for the wheel, and to the bolt on the rear end of the fork the cable was fastened which ran from the wheel back to the front truck. To the bolt on the front end of the fork was fastened the rear end of the steel cable. At the time of the accident the cable passed around the rear pulley from the south to the north side. The circumference of the rear pulley wheel traveled the same distance as the engine when the engine was pulling the house; and the house itself traveled one-third the distance traveled by the engine. The ground was not hard and it was necessary to place timbers underneath the trucks. Shortly after appellee began work, the engine was started and made a short pull and was stopped because one of the timbers in front of the front roller had become displaced. Charles Haage, a practical house-mover, then in the employ of appellant and in charge of the work, and William Harrison and appellee set about replacing the timber. Appellee was directed by Haage to lift up the rear pulley wheel which he did by taking-hold of the cable with his left hand within four inches of where it entered the pulley wheel groove on the south, and of one of the spokes on the north side of the wheel with his right hand, he standing on the east side of the wheel. He claims that while he was still lifting on the wheel, Haage, without warning him, gave the signal to the engineer to go ahead, and the engine started. Appellee’s hand was caught between the cable and the rim of the wheel where the cable entered the groove on the south side, and passed around the circumference just a trifle more than one-quarter of the distance, nearly to his elbow. He attracted the attention of the other men, his hand was released, and he was taken to the hospital where three fingers and about half of the index finger, and a small part of the palm of the hand, were removed. He brought this suit to recover damages for the injuries so sustained. The original declaration contained two counts, and before the trial three counts were added. The court instructed the jury to find appellant not guilty under the first count of the original declaration and the three additional counts. The case was submitted to the jury on the second count of the original declaration which charged that appellant was engaged in moving- a certain house, by means of certain appliances; that appellee was in the employ of appellant and engaged in helping- to move the house; that it was the duty of appellant to so equip the engine, one of said appliances, that appellee would not be exposed to unnecessary danger in the performance of his work, and to see that said engine was not suddenly moved forward while appellee was in danger of being injured; yet, disregarding its duty, appellant negligently caused said engine to be suddenly started forward, and thereby, while, in the exercise of due care, appellee was performing his duties, his left hand was caught and the fingers smashed, cut and bruised so that it became necessary to amputate them. At the close of all the evidence, the court overruled appellant’s motion to exclude the evidence and refused its instruction directing the jury to find appellant not guilty. Appellee had a verdict for $4,500. A motion for a new trial was overruled, as was also a motion in arrest of judgment. Judgment was entered on the verdict and the company appeals.
    Duncan, Doyle & O’Conor, for appellant.
    Thomas N. Haskins and Browne & Wiley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

It is urged by appellant that appellee was injured by a risk he assumed under his contract of service. As appears from the evidence, Haage, a practical building mover, was, at the time of appellee’s injury, in full charge of the work of moving the building. As such he was the vice-principal representing the master at that time and place. He gave the order to appellee to lift the wheel, and there was no danger in this work unless the engineer started the engine, which the evidence shows he would not do without a signal from Haage. There is proof that while appellee still had hold of the wheel, Haage, by waving his hand, gave the signal to start the engine, without warning appellee of his intention so to do. There was also some proof that Haage did give warning, but there is no proof that appellee saw the signal or heard the warning, and his testimony was that his position was such that he could not see the signal, and that he did not hear any warning, and Haage testified on cross-examination that the house was moving before he gave the warning. “Where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant; and all commands given by him within the scope of his authority are in law the commands of the master.” City of LaSalle v. Kostka, 190 Ill. 141; Chicago & Alton R. R. Co. v. May, 108 Ill. 288; Wenona Coal Co. v. Holmquist, 152 Ill. 581; Mobile & Ohio R. R. Co. v. Godfrey, 155 Ill. 78; Fraser & Chalmers v. Schroeder, 163 Ill. 459; Illinois Steel Co. v. Schymanowski, 162 Ill. 447; Graver Tank Works v. O’Donnell, 191 Ill. 236. It is true that the servant not only assumes the ordinary risks incident to his employment, but also the dangers which are obvious and apparent. It is also true that, when a servant enters the employment of the master, the ordinary risks of such employments, which he assumes, include the negligence of fellow-servants associated with him. But he does not assume the risk of the negligence of employes of the same master who are not associated with him or who are not fellow-servants with him. Illinois Third Vein Coal Co. v. Cioni, 215 Ill. 583; Illinois Steel Co. v. Coffey, 205 Ill. 206; Chicago & Eastern Illinois Railroad Co. v. White, 209 Ill. 124. Whether appellee, in taking hold of the wheel in obedience to an order from Haage, the man in charge of the work, assumed the risk of injury which might result from the act of Haage, without warning appellee of what he was about to do, in causing the engine to be started, while he knew or ought to have known that appellee still had hold of the wheel, was a question of fact for the jury, and their finding thereon, in our opinion, is supported by the evidence.

It is claimed by appellant that it was contributory negligence for appellee to take hold of the cable in front of the wheel; that he could, with safety, have taken hold of the rim of the wheel where the cable was already upon it, or of the spokes. Whether appellee, in taking hold of the wheel as he did, was guilty of negligence which contributed to his injury, or whether he acted as a reasonably prudent person would do for his own safety under like circumstances; was also a question of fact for the jury; and they, in determining that question, had a right to consider that the engine was standing still; that appellee knew that Haage, who was in charge of the situation, and who had ordered him to take hold of the wheel and knew that he had hold of it, was standing by, and that it was only at his signal that the engineer would start the engine.

The questions of contributory negligence and assumed risk are ordinarily questions of fact to be determined by the jury. Those questions are never presented to the court as questions of law when the evidence is conflicting, as it is here, or when, conceding the testimony on the part of the plaintiff to be true, with the inferences that may legitimately be drawn therefrom, reasonable men might differ upon the questions whether the injury was caused in consequence of the negligence of the plaintiff or the plaintiff had assumed the risk which was the proximate cause of his injury. It clearly was for the jury, in view of the facts, to say whether the appellee so far contributed to his injury by his own negligence as to defeat his right to recover, and whether he assumed the risk of being injured when he entered upon the employment. We think the court did not err in declining to take the case from the jury.

It is urged that counsel for appellee, in his closing argument to the jury, made remarks not warranted by the evidence and prejudicial to the interest of appellant. An examination shows that much of the language complained of was used id reply to what was said by counsel for appellant. The court sustained objections thereto, and we do not consider that the remarks were of such a character as to have influenced the jury to the prejudice of appellant.

It is urged that the damages are excessive. Appellee was thirty-eight years of age and earned, before he was injured, from $730 to $780 per year, or from $2.35 to $2.50 per day. It is apparent that with his hand in the condition disclosed by the evidence, his earning capacity is very much impaired. The amount of the judgment at the highest legal rate of interest would produce an income of but $315 per year.

In the absence of evidence that the jury were influenced by prejudice or passion, we do not feel disposed to lessen the amount of the judgment by ordering a remittitur.

Finding no reversible error, the judgment is affirmed.

Affirmed.


text:
    Duncan McDougall, Appellee, v. Thomas W. Burrows et al., Appellant.
    Gen. No. 5146.

      Injunctions—when lie to enforce negative covenants in deeds. A valid covenant contained in a deed of real estate restricting the obstruction of a sewer will he enforced in equity by injunction against the grantee in such deed and those claiming under him.
    Bill in chancery. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stouoh, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. Duncan McDougall, appellee, filed his bill in chancery in the Circuit Court of LaSalle county alleging that on January 19, 1901, he conveyed to Thomas W. Burrows certain real estate within the city of Ottawa by a deed which contained the following clause:
    “Paul street sewer between said block 87 and block 100 west of Fox river, empties into an open sewer which runs immediately along the foot of the bank or bluff along the crest of which said stone wall and fence are constructed, and this deed is made upon the express condition, which is part of the consideration hereof, that said sewer, where it runs adjacent to and across the property hereby conveyed, shall be and remain open and unobstructed by any material of any kind, thrown over said bank so as to slide down into and obstruct said sewer, it being expressly understood that said sewer shall not be obstructed by the owner or occupant of any of the premises hereby conveyed.”
    ¡ The bill further alleged that he was the owner of and in possession of lot 8 in block 87 in State’s addition to the town of Ottawa on the date of said conveyance and that the same was adjacent to the real estate mentioned in said deed; that the sewer described in said deed as the Paul street sewer emptied into an open sewer which discharged into the Fox river; and that the said conveyance to Burrows was made upon the express condition that it was made a part of the consideration for said deed that said open sewer should be and remain open and unobstructed by any material of any kind thrown over said bank so as to slide down into and obstruct said sewer; and that said deed contained the covenant that said sewer should not be obstructed by the owner or occupant of any of the premises conveyed by such deed; that Burrows by virtue of the said deed became owner of and is in possession of the real estate described in said deed; that a conveyance was made by Burrows and his wife to the Ottawa Banking & Trust Company, but that their rights were subject to his rights. The bill further alleged that the said Thomas W. Burrows ever since the execution and delivery of said deed openly, persistently and flagrantly violated said condition or restrictive covenant and caused and permitted to be thrown over said bank and stone wall all kinds of debris, ashes, stone, bricks, cinders, old metal cans, old crockery, old wall paper, old clothes, tree trimmings, grass cuttings and other material and that much of said material slid into and obstructed said sewer, and was a menace to the health and comfort of complainant and all people residing in the neighborhood of said open sewer. The bill prayed that Thomas W. Burrows and the Ottawa Banking & Trust Company be made parties defendant and that they be restrained from obstructing the sewer.
    The defendants filed a demurrer which they afterward withdrew and filed an answer wherein they admitted the execution of the deed and that it contained the restrictive clause set out in the bill and alleged that they accepted said deed because said clause was merely an agreement not to obstruct with material thrown over the bank or wall, the Paul street sewer, a public sewer of the city of Ottawa, and averred that they assumed no burden other than that cast upon Burrows by the laws of the State of Illinois and the ordinances of the city of Ottawa, and admitted that Burrows owned said lot 8 as averred in the bill at the date of the conveyance but averred that about April 2, 1907, Burrows conveyed said lot and other property to the Ottawa Banking & Trust Company, and that the title then was in that company, and that said restrictive clause created no duty from defendant to complainant other than was due the general public; and alleged that to entitle complainant to the relief asked he should allege and prove other damage than that suffered by the general public and that as he did not make such allegation the remedy provided for the protection of the public was an ample remedy at law to which the complainant had access; and that complainant did not aver and it was not a fact that he was without an adequate remedy at law. Burrows denied that he had obstructed the said sewer in the manner stated in said bill of complaint, and stated that complainant was not entitled to the relief asked because the relief asked for was no different than that could be asked for by the public in general; that the complainant was guilty of laches in not taking action for nearly seven years; that the open sewer was a nuisance per se and that no two citizens of a populous city, can by private contract, create a right to maintain a public nuisance, and referred to the ordinances of the city of Ottawa; and further denied that there was any equity in the bill or that there were any facts sufficient to confer jurisdiction upon a court of chanc.ery or that upon the showing made plaintiff was entitled to any relief. The Ottawa Banking & Trust Company alleged that it held the property free from the clause in the deed.
    A replication was filed and the cause was referred to the master to take and report proofs and findings of law and fact. The master heard the evidence and reported that the evidence supported the allegations of the bill, that the equities of the cause were with appellee, and recommended that a decree be entered in accordance with the prayer of the bill. Objections were filed to the master’s report and it was ordered that they stand as exceptions. The court overruled the exceptions and entered an order confirming the master’s report and perpetually enjoining Burrows and the owners and occupants of the premises described in said deed of appellee to Burrows from obstructing said open sewer and that appellants pay the costs. The defendants prosecute this appeal.
    Jarvis B. Burrows and Butters & Armstrong, for appellants.
    Snow & Haight, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The evidence shows that Burrows caused or permitted, the sewer to be obstructed as charged in the bill and that such obstructions caused foul odors to arise therefrom; that the sewer was in full view of Mc-Dougall’s house, which was near, and that he was disturbed in the enjoyment of his home by reason of the obstructions.

Counsel for appellants argue at length that the clause in question in the deed is not a negative restrictive covenant, but that it is a condition subsequent, and as such, a bill in chancery will not lie to prevent the grantee from failing to comply with its terms, and say that this is their only contention on this appeal. This distinction is not important here as appellee is not seeking to declare a forfeiture or attempting to reenter and take possession of the land on account of the violation of the terms of the deed. The main question presented by this record is whether or not the Burrows deed contained such an agreement that he and those holding under him were bound to refrain from obstructing the sewer. A full and exhaustive review of the authorities sustaining the right to an injunction in cases involving the same principle as that at bar is contained in Frye v. Partridge, 82 Ill. 267, and the court there said: “We are aware of no restriction upon the right of an owner to convey upon such terms and conditions as he may see proper, and as may be acceptable to the grantee, except that the right should be exercised with proper regard to public policy, and that the conveyance should not be made in restraint of trade. When a vendee purchases with full notice of a valid agreement between his vendor and the original owner, concerning the manner in which the property is to be occupied, it is but a reasonable and equitable requirement to hold him bound to abide by the contract under which the land was conveyed.” We think the deed shown by the record to have been ac-, cepted by Burrows contains an agreement binding him and those holding under him to refrain from obstructing the sewer, and that it was not contrary to public policy or in restraint of trade, and was sufficient to warrant a court of equity in restraining him and his vendees from so doing.

We have examined the cases cited by appellant and find nothing inconsistent with the right of appellee to maintain the bill.

The decree is therefore affirmed.

Affirmed.


text:
    Robert McCabe, Appellee, v. Atchison, Topeka & Santa Fe Railway Company, Appellant.
    Gen. No. 5186.
    1. Appeais and ebbobs—how record of trial court cannot be shown. The state of the record of the trial court cannot be shown by affidavits of counsel.
    2. Measure op damages—in action for unreasonable delay in transporting by carrier. In such a case the measure of damages is the difference between the market value of the goods at destination at the time when they should have arrived there if moved with reasonable diligence and the market value of the same goods at destination at the time when they actually did arrive there.
    3. Instructions—must be predicated upon the pleadings. An instruction is improper which is not predicated upon the pleadings in the cause.
    4. Common cabbiebs—obligation vHth respect to delivery. Carriers by railroad are not bound to deliver the goods carried to the consignee personally, or give notice of their arrival, to discharge their liability as carriers, but when the goods have reached their destination if the consignee is not personally present to receive them, the carrier may safely store them in a suitable warehouse, and where the carrier is not required in the usual course of business or expected to remove the freight from the car, as in the case of steel rails, iron and the like, and there is no contractual relation to the contrary, or if no place of delivery is designated or required, it is sufficient to place the goods on the side track of the consignee in the usual and customary place of unloading by the consignee. ■
    Assumpsit. Appeal from the County Court of Knox county; the Hon. R. C. Rice, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.

      Williams, Lawrence, Welch & Green and Lee. F. English, for appellant; Robert Dunlap, of counsel.
    Charles Dickerson, for appellee; A. J. Boutelle, óf counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action in assumpsit to recover for the loss of a carload of steel rails shipped by appellee from Galesburg, Illinois, over the line of appellant, the Atchison, Topeka & Santa Fe Railway, in July, 1903, to the Commonwealth Steel Company, at Granite City, Illinois. The declaration contained a special and the common counts. The special count alleged that appellee delivered 30,300 pounds of old steel rails of the value of $300 on July 30, 1904 (afterwards amended to read 1903), to appellant to be carried and delivered to the Commonwealth Steel Company at Granite City; the failure to take due and reasonable care in the conveyance and delivery thereof, and the loss thereof to appellee. The plea of non assumpsit was interposed, and on a trial appellee obtained a verdict and a judgment for $225 and the defendant below appeals.

Appellant contends that appellee’s proofs in chief did not make a case, and that the court erred in denying its motion made at the close of appellee’s evidence in chief to instruct the jury to find for appellant. After that motion was denied appellant introduced evidence to establish its defense, and the error, if any, in denying the motion was thereby waived. At the close of all the evidence, appellant renewed its motion for a directed verdict in its favor, which was denied, thus raising the same question raised by the motion for a new trial, whether or not the proof made a case for appellee.

The proof showed that 30,300 pounds of old steel rails were received by appellant at Galesburg from appellee to be carried and delivered to the Commonwealth Steel Company at Granite City under a bill of lading issued by appellant; that the car containing the shipment was carried by appellant to Pekin and delivered to the Chicago, Peoria & St. Louis Railway Company to be forwarded to Granite City; that the car was placed on a side track at Granite City at the usual and customary place for unloading shipments received for the Commonwealth Steel Company, by the St. Louis Merchants’ Bridge Terminal Company, which connected with the Chicago, Peoria & St. Louis Company; that the car was refused by the consignee and was forwarded by the St. Louis Merchants’ Bridge Terminal Railway Company to Madison Town, Illinois, where it was unloaded by that company.

The placing of the car by the St. Louis Merchants’ Bridge Terminal Company at the usual and customary place for unloading shipments received for the Commonwealth Steel Company at Granite City, was a delivery of the car containing the property sued for, within the meaning of the contract of shipment, and the placing of the car there terminated the liability of appellant, as we understand the rule laid down in Illinois Central Railroad Company v. Carter, 165 Ill. 570; Gratiot Street Warehouse Company v. St. Louis, Alton & Terre Haute Railroad Co., 221 Ill. 418. The car remained at Granite City thirty days, before the Terminal Company removed it to Madison Town, where it was unloaded. If there were any improper handling of the car after it had been placed at the usual and customary place for unloading shipments received by the consignee, that was not a wrong for which appellant could be held liable. The liability therefor, if any, must rest upon some other party, whether upon the consignee or the Chicago, Peoria & St. Louis Company, we are not called upon to determine.

The car was shipped on July 30, 1903, and reached Granite City on October 8, 1903. Appellee contends that this was such an unreasonable delay in the shipment and delivery as to make appellant, as a carrier, responsible for the value of the goods. No count in the declaration charged unreasonable delay in delivering the goods or placed the supposed liability of appellant on that ground. Appellee asked leave to file an amended record, and filed an affidavit stating that on the day of the trial he obtained leave to, and did file an additional count charging an unreasonable delay in the shipment and attached to the affidavit a copy of said count. We, therefore, gave him leave in vacation to file an amended record and abstract. But no such record was filed. We are unable to find anywhere in the declaration any such count. The record does disclose that on the day of the trial he had leave to amend the declaration and did file an amendment which is set out in the record, but this amendment only substituted “1903” for “1904” as the year in which the goods were shipped. We cannot here accept an affidavit of counsel as showing the condition of the record in the court below. The record must be certified by the clerk of that court, and as appellee filed no amendment here, we must assume that the record as filed here is correct. Therefore, there was no charge in the declaration that there was any unreasonable delay in carrying the car from the place of shipment to the place of delivery.

The value of the goods as originally shipped was not the proper measure of damages, as stated in appellee’s second instruction, but the difference between the market value of the goods at destination at the time when they ought to have arrived there if moved with reasonable diligence and the market value of the same goods at destination at the time when they actually did arrive there. There was no evidence whatever that the market value of the steel rails in question at Granite City was less on October 8 than it was on July 30.

Appellee’s second instruction was based on the theory that appellant might be liable for an unreasonable delay in the delivery of the goods. In the absence of an averment in the declaration that there was such an unreasonable delay, it was error to give this instruction.

It was also error on the part of the court, in the absence of such an averment, to insert in appellant’s seventh given instruction the words, “safe delivery within a reasonable time. ’ ’

It was also error to refuse appellant’s tenth instruction which read that-carriers by railroad are not bound to deliver the goods carried to the consignee personally, or give notice of their arrival, to discharge their liability as carriers, but that when the goods have reached their destination, if the consignee is not present to receive them, the carrier may store them safely in a suitable warehouse, or where the carrier is not required in the usual course of business, or expected to remove the freight from the car, as in the case of steel rails, iron and the like, and there is no contractual relation to the contrary, or if no place of delivery is designated or required, it is sufficient to place the goods on the side track of the consignee in the usual and customary place of unloading by consignee. Illinois Central Railroad Company v. Carter, supra; Gratiot St. Warehouse v. St. Louis, Alton & Terre Haute Railroad Co., supra.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.