author: Per Curiam.

text:
    The Federal Contracting Company, Appellee, v. The Coal Creek Drainage and Levee District, Appellant.
    1. Contracts — when deviation in performance of building, will not preclude recovery. Recovery may be bad for a balance due under a building contract notwithstanding the wort was not done in exact compliance with the original specification if the deviation is clearly shown to have been instituted by changes subsequently made in such speci-cations.
    2. Contracts — effect of decision of architect. Where parties to a contract have agreed to submit all questions to the decision of an architect or other umpire and to.pay upon his certificate of performance, his acceptance and certificate is final and binding unless fraud or mistake can be shown.
    3. Contracts — when final certificate of architect not condition precedent to recovery. Notwithstanding a contract provides for the payment of certain work upon the certificate of an architect in charge of the work, such a certificate is not a condition precedent to recovery where a good and sufficient excuse is shown for a failure to obtain it.
    Assumpsit. Appeal from the Circuit Court of Schuyler county; the HoN. Harry Higbie, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed December 13, 1911.

      Cer-tiorari denied by Supreme Court (making opinion final).
    Glass & Bottenberg and L. A. Jarman, for appellant.
    Milton McClure and W. H. Dieterich, for appellee.
   Per Curiam.

This is an action of assumpsit brought in the Circuit Court of Schuyler County by the Federal Contracting Company, a corporation, upon a written contract entered into between it and the Coal Creek Drainage and Levee District, defendant, by which plaintiff undertook to do certain work of excavation and construction for the defendant. A trial before the court without a jury resulted in a finding and judgment in favor of plaintiff for $6,351.31 and costs, to which finding and judgment defendant excepted and has appealed to this.court.

The events leading up to the execution of the contract in question were as follows: The defendant drainage district was organized in 1896 under the levee act, and embraces about 6,700 acres of land, 4,900 acres of which are owned, by George B. Christie and Jesse Lowe. Frank J. Trout, Thomas K. Condit, John Schultz and T. J. Hodgson were some of the other landowners in the district. Several attempts were made to protect the land in the district from the overflow waters of the Illinois Biver, and in 1898 the district contracted with Christie & Lowe to build a levee about the same and to construct, certain interior ditches, F. 'J. Trout acting as manager of the work. Again in 1900 the district let a contract to Christie & Lowe to build the “Bluff Ditch,” the purpose being to intercept the bluff waters and conduct them around the district to avoid the pumping thereof. The interior ditches soon began to fill up, as there was no current for their drainage except that created by pumping the water, and the Bluff Ditch proved wholly insufficient for the purpose intended, so that the bluff waters continued to come down over the district and flood the lands. In 1908, Mr. Trout, then sole commissioner, at the instance of Christie & Lowe, took steps to further improve the district, with a view to the successful reclamation of the lands. Jacob A. Harmon, a civil engineer of Peoria, Illinois, was called into conference and requested to submit plans for the excavation of the old ditches and .the construction of new ones, under some method which would insure success. Harmon submitted a new scheme by which a series of settling basins were to be built in connection with the Bluff Ditch to receive the water and all soil deposits in times of heavy rain fall, and thus make the ditch care for the water and prevent its filling by deposit. T. J. Schweer, J. H. Coleman and George Hanna were then appointed commissioners in conformity with a decision of the Supreme Court that landowners within the district could not make an assessment for the improvements. The new commissioners advertised for bids, and the contract- for the entire work was awarded to the Federal Contracting Company of Beardstown, Illinois, a corporation having three stockholders, of which, as shown by the evidence, F. J. Trout is the manager and principal owner and who did all the-work.

The contract called for the re-excavation and improvement of Bluff Ditch, the construction of settling basins or reservoirs and the erection of levees at certain places on the lower side of said ditch; also the re-excavation of a ditch known as the Coal Creek Main Ditch, and the construction of three other ditches known as the “West Lateral,” the “East Lateral” and “Branch A of the East Lateral.” The plaintiff was also required to clear the right of way.

The specifications divided the work into two sections, section 1 being the Bluff Ditch and involving the movement of approximately 156,500 cubic yards of earth; and section 2, the -other ditches, called the open ditches, involving the movement of approximately 259,600 cubic yards.

The declaration consists of four counts. The first count, after setting out the contract in full, avers that plaintiff proceeded to do the work according to the profiles and specifications, but was unable to finish the work, known as Bluff Ditch, by January 1, 1909, and the balance of the work by April 1, 1909, as provided by the contract; that it was unable to complete and finish the contract until October 17, 1909; that the delay was not the fault of plaintiff, but was caused wholly by defendant; that the causes of the delay were, (1) because plaintiff was ordered to construct the Bluff Ditch to the height of 20 7-10 feet for the distance of three-quarters of a mile instead of 13 2-10 feet, as originally planned and constructed; (2) because the location of the channel of the Bluff Ditch was changed for one mile or more, requiring more difficult and prolonged work and handling of much earth; and (3) because the commissioners wrongfully caused the water to be pumped from the main ditch of the district to so shallow a depth that the plaintiff could not proceed with the work of dredging; that on October 17, 1909, it had fully completed all the work it had contracted to do in substantial compliance with its said' contract and with the plans, profiles and specifications therefor; and that on that date and ever since'that time has been entitled to a certificate of the completion of said work done to be executed by the engineer and commissioners, as provided by the contract, but that just before the work was finished, to-wit, on October 14, 1909, it was notified in writing by defendant that Jacob A. Harmon, the engineer of the district, was no longer the engineer in charge; that later the commissioners refused to give plaintiff a certificate of completion or to make a final estimate of the amount due it, presenting as a reason for its refusal a letter of one C. W. Brown, who claimed to be the engineer of the district; that the removal of Harmon and the appointment of Brown was part of a wrongful and fraudulent design on the part of two of the commissioners of the district, to prevent the issuance of the certificate, which said Harmon was ready and willing to issue; that the sum of $33,633.18 has already been paid plaintiff, but that there is still due and unpaid to it the sum of $5,738.45.

The second count alleges that defendant caused to be assessed against the lands in the district, $63,600, by proceedings in the County Court of Schuyler county, to make certain improvements in said district, and that plaintiff entered into a contract with defendant to do the work, as provided in the contract set out in the first count, and entered upon the construction of said work; that after work had been begun certain changes were made by the defendant and its engineer, which made it impossible for plaintiff to finish the Bluff Ditch by January 1,-1909, and the balance by April 1, 1909, and the work was not completed until October 17, 1909, for the reasons set out in the first count; that defendant did not adequately extend the time for completion of the work, but demanded that plaintiff put on additional force, and in consequence of such demand the plaintiff employed a large number of teams and men to work with scrapers, in addition to the land dredges already in operation; that plaintiff also sublet the work on Bluff Ditch at the price of eight cents per cubic yard; that if no changes had been made, the land dredges and equipment would have been adequate to have completed the work within the time specified; that on account of the additional help employed plaintiff paid out $5,-495.12 over and above the price at which plaintiff had contracted for the construction of Bluff Ditch; that the original estimate upon which the assessment was based exceeded the price for which plaintiff contracted to do this work by $6,000 and that defendant was, therefore, fully authorized to give directions for the work made necessary by the changing of Bluff Ditch, which fact was known to plaintiff when it consented to do the additional work required by the changes; that plaintiff did complete the additional work required by the changes on October 17,1909, and demanded a certificate of completion, as set forth in the first count, and that defendant was liable to pay to plaintiff, on account of such additional work, $5,495.12 in addition to the contract price, making the whole amount due plaintiff, $11,-233.57.

The third count alleges substantially the same cause of action as the second count.

The fourth count is the common counts, alleging defendant’s liability to plaintiff as $12,000.

On the trial plaintiff presented an amended account, showing the amount due to be $6,351.31, according to the certificate of the engineer, Harmon, and also the sum of $227.93 f or-extra work.

Defendant pleaded the general issue and three special pleas of set-off. The special pleas set up a cross-action for damages, based upon the allegation that the plaintiff did not perform the work mentioned in the manner provided for by the contract; denied that the engineer, Harmon, made any decision as to the quality and quantity of workmanship, and stated that any decision he did make was made fraudulently, negligently and in utter disregard of the rights of defendant and in fraud of its rights in the premises. The set-off claimed by defendant amounted to $17,783.44. A replication was filed and issue joined.

The court below found that plaintiff was entitled to recover the balance due for work done under the contract, which amounted to $6,351.31 but that it was not entitled to recover for extra work amounting to $227.92.

The main question to be considered is whether plaintiff did complete the work in the time specified and in the manner provided for by the specifications and the contract, and if not, was the delay occasioned by, and the change in the manner of construction due to the fault of the plaintiff, or made necessary on account of new duties, not contemplated by the contract, imposed upon plaintiff by defendant.

The questions involved in the construction of the two sections mentioned in the specifications are so different as to make a separate consideration of them advisable. The work called for in the first section, known as the Bluff Ditch, was all sublet by plaintiff to other contractors, and plaintiff itself did none of the work thereon. The contract contemplated, for the most part, the re-excavation and enlargement of the old ditch, but in some places the old bed was departed from. After the work had been begun by the sub-contractor, and in the absence of Trout, plaintiff’s manager, the commissioners and Harmon, their engineer, at the request of Mr. Christie and perhaps other landowners, directed the sub-contractor to move his machinery into the old ditch and make the excavation there instead of along the line designated in the plans, which the sub-contractor did. This change proved extremely detrimental to the rapid prosecution of the work, because the new conditions under which the machine was required to operate strained its capacity and caused frequent breaks and delays. Mr. Trout, on his return, disapproved of the change, but permitted the work to proceed. The work progressed, however, very slowly, and the commissioners and engineer, Harmon, fearing the work would not be completed before the spring floods, urged plaintiff to employ more help, whereupon plaintiff put another sub-contractor on the work, and later, upon the further solicitation of the commissioners, employed a large number of men with teams and scrapers. With this additional help, however, plaintiff was nnable to complete the work by April 1, 1909, to which date the time of completion of the work was extended. In addition to the above changes, it was discovered, after the work at the upper end of the ditch, where Hood’s basin was located, was well under way, that for three-quarters of a mile a mistake in the height of the levee had been made in the specifications, and that the levee for that distance would have to be constructed to a height of 20.7 feet instead of 13.2 feet, as provided for by the plans. This created an additional burden and delay, and taxed the capacity of the dredge to the utmost. In fact, the additional height could not be built with the machine then in use, and at the same time leave the berm provided for in the specifications, and in order to expedite the work ■ the engineer, Harmon, gave the sub-contractor orders to cut away a part of the berm, and as a result the work was not completed either in the time or in the manner contemplated and provided for by the contract. Although the original plans had been materially altered, and without consulting the manager of plaintiff in regard to some of the changes, yet the evidence shows that the work, as completed, was approved by the engineer and a majority of the commissioners, and that a certificate of completion was given by the engineer, Harmon, to plaintiff.

It further appears that the commissioners would have given an order for final payment of Bluff Ditch, but for the advice of their attorney that they should not pay in full for the work on the Bluff Ditch until the final completion of the whole work. However, this portion of the work was considered as completed, and the sub-contractors were allowed to withdraw their machinery.

The contract between plaintiff and defendant provided that the work should progress in such order as the engineer should direct and that he should give full instructions to the contractor • that his decision as to the quality and quantity of material and workmanship should be final; that he should make estimates of the work done each month upon which the commissioners should pay 85 per cent of the value thereof, and upon final completion of the work in accordance with the plans and specifications, he should prepare a final estimate of the amount and value of work done, deducting all previous payments, and if the work was accepted by the engineer and commissioners, the contractor should be paid in full; that the engineer should approve of the manner in which work, done by steam shovel or dredge, should be carried up the fill; that the word “engineer” in the contract and specifications should be understood to refer to Jacob A. Harmon, civil engineer of Peoria, Illinois, or his duly authorized representative acting in his behalf.

A careful examination of the contract sued on, and a thorough consideration of the evidence introduced to show the work done and the conditions under which it was done, forces us to the conclusion that plaintiff is entitled to recover the full amount remaining unpaid for work done under the Bluff Ditch portion of the contract, and that defendant district is not entitled to any set-off against the same. The work on the Bluff Ditch was done under the direction of the engineer named in the contract, was approved by the commissioners and a certificate of completion given by the engineer, which also met the approval of the commissioners. "While the work was not done in exact compliance with the original specifications, the deviation is clearly shown to have been necessitated by changes subsequently demanded by the engineer and commissioners. The law is well settled that where parties to a contract have agreed to submit all questions to the decision of an architect or other umpire and to pay upon his certificate of performance, his acceptance and certificate are final and binding unless fraud or mistake can be shown. Canal Trustees v. Lynch, 10 Ill. 521; Finney v. Condon, 86 Ill. 78; Michaelis v. Wolf, 136 Ill. 68; Barney v. Giles, 120 Ill. 154; Pacaud v. Waite, 218 Ill. 138; Lohr Bottling Co. v. Ferguson, 223 Ill. 88.

As to plaintiff’s right to recover the balance due under the contract for work done under section 2 of the specifications, we are of the opinion, after a careful examination of the record, that it is entitled to recover. The evidence shows that in July, 1909, plaintiff claimed to have finished this portion of the work in accordance with the specifications, and applied to the engineer for a certificate of completion. The commissioners and engineer, however, refused to accept the work as it then- stood, claiming that it was not properly and fully completed, and a controversy arose which was finally settled by an agreement - between plaintiff and the commissioners to the effect that some additional excavations should be made in the lower end of the main ditch, and when this was done, the whole work would he accepted and payment made in full. This work was done, hut in the meantime the hoard of commissioners had been reorganized (a dispute having arisen between the preceding board members), and the engineer, Harmon, was discharged and acceptance and payment refused.

Defendant contends that this ground of recovery cannot prevail, (1) because it is not set up in the declaration; (2) because no such agreement was made; (3) because, if made', it was not acted upon by the board at a regular meeting, but was the act of two commissioners individually; and (4) because such action, if taken, was a fraud upon the district and landowners,' as the work was not done in accordance with the specifications.

As to the first contention, it is sufficient to say the ground of recovery relied upon is sufficiently set out, when the pleadings are considered as a whole. It clearly appears by the testimony of two of ’the commissioners and the engineer that such an agreement was made between them and the plaintiff. We do not think it was necessary that the commissioners should have had such agreement entered upon their records before the same would become binding. It is enough that two of the commissioners, being, a majority of the board, together with the engineer, acting in good faith, approved of the work as finally completed, and under the circumstances in this case we do not think the charge of fraud can be sustained.

While no certificate of completion was given to" plain-, tiff, its failure to receive such certificate was not its fault, nor that of the engineer, bnt was dne to the fault of the reorganized board which had caused the dismissal of Harmon before the certificate had.been given. Harmon testified at the trial that he was ready to give a certificate, and a final certificate, as prepared by him, was properly admitted in evidence to show that the engineer, according to his testimony, had been ready and willing to give one. Where a contract provides for the payment of certain work upon the certificate of the architect in charge of the work, the obtaining of such certificate is a condition precedent to plaintiff’s right to require payment, and such condition must be strictly complied with, unless a good and sufficient excuse can be shown for non-compliance therewith. Wolf v. Michaelis, 27 Ill. App. 336; Downey v. O’Donnell, 86 Ill. 49; Fowler v. Deakman, 84 Ill. 130; Barney v. Giles, 120 Ill. 154; Michaelis v. Wolf, 136 Ill. 68.

We are of the opinion that plaintiff is entitled to recover the amount remaining due for work done under the contract, amounting to $6,351.31, but not for any extra work claimed by plaintiff, and finding no reversible error in the record, the judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    F. M. Fletcher, Appellee, v. W. E. Duncan et al., Appellants.
    1. Roads and bridges — when petition for opening of road confers jurisdiction upon commissioners. Held, that the petition in question in this ease sufficiently alleged that the petitioner was directly interested in the opening of the road in question.
    2. Roads and bridges — •when notices of meeting of commissioners to consider petition for laying out of road presumed sufficient. Where a ease is heard upon stipulation that notice was given of the filing of a petition for the opening of a road and thafo written notice was given of the time and place when the commissioners would meet to consider the prayer of such petition, it will be presumed on review that the notices referred to in such stipulation were in conformity with the statute.
    3. Boads and bridges — when order upon mandamus requiring opening of road sufficiently speeifie. Seld, in .this case, that the order set forth in the opinion entered pursuant to a petition for mandamus was sufficiently specific to require the commissioners of highways to open the road in question.
    4. Mandamus — when awarded requiring highway commissioners to open road. A mandamus will "be issued requiring highway commissioners to open a road where it appears that all the preliminary steps required by statute have been had and that it only remains for such commissioners to consummate the necessary proceedings for opening the road by obeying the mandates of the writ.
    Mandamus. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed December 13, 1911.
    5. H. CummiNs, for appellant.
    Smith & Fbiedmeyeb, for appellee.
   Per Curiam.

This is an appeal from an order. of the Circuit Court of Sangamon county, entered in a proceeding- for mandamus, directing the appellants, W. E. Duncan, John Edwards and A. H. Hughes, Commissioners of Highways of Buffalo Hart Township, and their successors in office, forthwith to meet in session and enter upon their records the proper orders for opening a road 20 feet in width, for private and public use, over the lands of Noah M. Cass, therein particularly described and located.

It is first urged that the petition for the proposed road did not confer any jurisdiction upon the highway commissioners over the subject-matter, for the reason that it is not therein alleged that the petitioner is directly interested. The petition alleges that the petitioner is the owner of certain described ten acres of land; that he resides thereon with his wife and child, and that said land is not connected with any private or public road. Tbe facts alleged sufficiently make it appear that tlie petitioner was directly interested in the opening of the proposed road, and his statement that he was “directly interested” would have added nothing to the effectiveness of the petition.

It is further urged that there is no evidence of any attempt to comply with the statute in respect to posting notices of the time when and the place where the commissioners would meet to consider the petition for the laying out of the road. Appellants have apparently overlooked the fact that they stipulated in open court that they, gave notice of the filing of the petition for the opening of the road in question, and that written notice was given of the time and place when they would meet to consider the prayer of said petition. The cause was heard in part upon such stipulation and it must be held that the notices so generally stipulated to have been given were in conformity with the statute.

Complaint is made that the order of the court requiring the appellants to open the road is not sufficiently specific. The order designates “a road for private and public use over the lands of Noah M. Cass, twenty feet wide and described and located as follows : Beginning at a point 44 rods south and 40 rods west from the northeast corner of Section 29 in Buffalo Hart Township, in the County of Sangamon, in the State of Illinois, and running thence west along the line of the lands of Noah M. Cass and Lewis Cass, 40 rods, more or less, to a public highway; thence south 20 feet; thence east 40 rods, more or less, to the lands of F. M. Fletcher; thence north 20 feet along the lands of Noah M. Cass and F. M. Fletcher to the place of beginning, connecting the lands of F. M. Fletcher with a public highway. ’ ’

This description of the road appears in all of the proceedings had for its establishment, and is sufficiently specific to meet all requirements.

All of the preliminary steps relating to the location and description of the road, the acquiring of title thereto, including the ascertainment and tender of damages therefor, appear to have been properly executed, and it only remains for appellants to consummate the necessary proceedings for opening the road by obeying the mandates of the writ.

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

Affirmed.


text:
    George R. Paulen, Administrator, Appellee, v. Springfield Consolidated Railway Company, Appellant.

      Beleases — what essential to set aside on ground of insanity. Before a release made by an insane person who lias received tlie benefit and advantage of the consideration paid thereunder can be set aside, the third party to such release is entitled to a return of the consideration paid, unless such third party is chargeable with knowledge of such insanity or lack of mental capacity or is guilty of fraud, misrepresentation or want of good faith.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Bobert B. Shirley, Judge, presiding. Heard in this court at the November term, 1910.
    Beversed and remanded.
    Opinion filed December 13, 1911.
    ' Wilson, Wabeen & Child, for appellant.
    RobeRt H. Patton, for appellee.
   Per Curiam.

This is a suit by appellee against appellant to recover damages for wrongfully causing the death of appellee’s intestate, Mary Paulen. A trial by jury resulted in a verdict against appellant for $3,000, whereof appellee remitted $234, being the amount received by his intestate in her lifetime in full settlement cf her claim against appellant for damages arising ont of the injury in question, together with interest thereon. Judgment was then entered against appellant for $2,766.

In the view we are constrained to take of the case, upon the record as made, it is only necessary to consider and determine the question relating to the alleged release,.

Appellee’s intestate was injured January 17, 1907, in a collision with a street car operated by appellant on Second street in the city of Springfield. Thereafter, she evidenced symptoms of insanity, as an alleged result of her injuries, and on November 1, 1907, she was adjudged insane and committed to the State Hospital for the Insane at Jacksonville, where she died in June, 1908. On February 18, 1907, an agent of appellant paid to the deceased $200, and in consideration therefor procured her signature to a release, under seal, of and from all claims for injuries sustained by her by reason of the collision in question. Appellee’s intestate received the money and the benefit and advantage thereof, and there was no offer or tender by her or by her conservator in her lifetime, or after her death by appellee, as her administrator, to place appellant in statu quo, prior to the commencement of this suit, and until the remittitur was entered.

There is not a scintilla of evidence tending to show that appellant was chargeable with knowledge of the insanity of appellee’s intestate or that it was guilty of any fraud, misrepresentation or want of good faith in procuring the release.

A contract entered into by an insane person or lunatic before inquest found is not void, but voidable. Jordan v. Kirkpatrick, 251 Ill. 116.

In this state the rule appears to be well settled that before a voidable contract made by an insane person, who has received the benefit and advantage of the consideration paid thereunder, can be set aside, the other party to the contract is entitled to a return of the consideration paid, unless such other party is chargeable with knowledge of such insanity, or lack of mental capacity, or is guilty of fraud, misrepresentation, or want of good faith. Jordan v. Kirkpatrick, supra; Pawnee Coal Co. v. Royce, 184 Ill. 402; Litchfield & Madison Ry. Co. v. Shuler, 134 Ill. App. 615; Fecht v. Freeman, 251 Ill. 84.

Appellee should not be permitted to speculate with reference to the possible outcome of his suit for damages.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. PresidiNG Justice Philbrick

text:
    Albert A. Poiset et al., Appellees, v. Nettie Townsend et al., Appellants.
    1. Pleading — when cross-hill may he filed. When a party defendant in a chancery proceeding has filed an answer, that defendant may as a matter of right file a cross-hill germane to the orginal hill.
    2. Pleading — when cross-hill germane to original hill, pi a partition proceeding a cross-hill which requires an accounting as to rents and profits after the death of the ancestor, is germane to the original bill.
    3. Jurisdiction — when question cannot he urged. No question can he raised that a court of law was the proper forum in which to determine a particular issue if the parties have submitted such issue to a court of chancery without question.
    4. Witness — when party in interest competent. Notwithstanding the adverse party sues in a representative capacity a party in interest is compétent to testify as to matters against his interest.
    5. Administration of estates — propriety of allowance of claim where another party is jointly liable. A claim is properly allowed against the estate of a deceased person who with respect to such claim was jointly and severally liable with another person.
    6. Administration' of estates — when allowance of claims not binding upon heirs. The rendering of a judgment in the probate court in the settlement of an estate, is not binding upon the heirs. When it is sought to subject the real estate of the deceased to the payment of such judgments, the heir has a right too show either that the judgments are not proper claims against the estate, that the personal property has been misapplied or wasted, that there are personal funds which the administrator has not reduced to possession, or, in fact, anything that will defeat the right of the administrator to proceed against the real estate.
    7. Partition — what cannot he determined in proceeding for. In a partition proceeding it is not proper for the court to determine the validity or invalidity of the action of the probate court in allowing claims against the deceased owner.
    Partition. Appeal from the Circuit Court of- Pulton county; the Hon. Harrt M. Waggoner, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed December 13, 1911.
    Marvin T. Bobison, for appellant.
    B. F. BobiNsoN and Harvey H. Ati-iertoN, for ap-pellee.
   Mr. PresidiNG Justice Philbrick

delivered the opinion of the court.

Martha A. Poiset died June 25, 1908, and left surviving her Francis Poiset, her husband, and Albert A. Poiset, Lonisa Fahey, and Nettie Townsend, her children and only heirs at law.

She died seized of the premises described in the bill of complaint for the partition of which this bill was filed by Francis Poiset, the surviving husband, who owned an undivided interest in part of the premises, and Albert A. Poiset, the son.

This appeal is not prosecuted for the purpose of having reviewed, and appellants do not question, • the rights of the partie's in the real estate as determined by the decree of partition. The portions of the decree which are appealed from relate to the question of rents and profits of the land; the right of Nettie Townsend, one of the defendants, to file a cross-bill for an accounting of rents and profits; to the rights of the. administrator, who is made a party defendant to this proceeding; to the findings of the court concerning the condition of the estate as reported by the administrator in the county court, and to the refusal of the court to determine the question of rents and profits as between the heirs.

On July 27, 1908, letters of administration upon decedent’s estate were issued to John W. Barlow who assumed the duties of administrator. Judgments were allowed upon numerous claims presented in the county court, and on October 9, 1908, the administrator filed in the county court his report of the condition of the estate, showing a deficiency in the personal estate of $4,074.71. He made no application in that court to sell the real estate to -pay debts, and is made a party defendant to this proceeding.

The bill avers that Albert A. Poiset, one of the complainants, was a tenant of Martha J. Poiset in her lifetime and was occupying-all the premises except the city property at the time of filing this bill. It further avers that all rents due from Albert A. Poiset to March 1, 19Q8, were paid to the decedent in her lifetime, but contains no averments of the payment of any. rent since that time, and does not ask for an adjustment of rents and profits. It avers the payment of taxes for the year 1908 by Albert A. Poiset, who asks to be reimbursed therefor; also that certain judgments have been allowed by the county court; that the report of the administrator shows there is insufficient personal property to pay the claims allowed, and prays that, if the premises are divided, the rights of the administrator be protected and that he be decreed to have a lien on the premises for whatever amount may be necessary to finally settle the estate, and that in the event of the sale of the premises that a sufficient fund be paid to him to make final settlement of the estate in the county court.

Nettie Townsend filed fier answer denying tfiat Albert A. Poiset fiad paid all rent accruing to tfie decedent in fier lifetime, denying tfie validity of tfie judgments allowed in tfie county court, denying tfiere is a deficiency of personal property to tfie amount of $4,074.71, and denying tfiat Albert A. Poiset was entitled to be reimbursed for tfie taxes paid by fiim until fie sfiould account for tfie rents and profits.

Tfie cause was referred to tfie master in cfiancery, tfie court rendered a decree on tfie master’s findings witfi tfie exception of fiis findings designated as Nos. 2 and 10, to wfiicfi exceptions filed by Nettie Townsend were sustained. Tfiese findings do not in any .way affect tfie questions now raised by tfiis appeal. The decree found tfiat Albert A. Poiset fiad paid all rent due for tfie premises to tfie «decedent to March 1, 1908. It made no findings as to tfie rents accruing from March 1,1908, to tfie time of tfie death of tfie decedent, June 25, 1908, or from June 25, 1908, till tfie filing of tfie bill, but found tfiat tfie court fiad no jurisdiction under tfie pleadings and evidence to adjudicate tfie question of tfie rents and profits in tfiis proceeding, or to require an accounting therefor from June 25, 1908, the time of tfie death of tfie decedent.

After tfie report of. tfie master. was filed, Nettie Townsend asked leave to file a cross-bill praying for an accounting of tfie rents and profits from tfie death of tfie deceased until tfie filing of tfie bill. Tfie chancellor refused to permit tfie filing of this cross-bill.

When a party defendant in a cfiancery proceeding has filed an answer, tfiat defendant may as a matter of right file a cross-bill germane to tfie original bill. While rents and profits accruing from tfiese premises prior to June 25, 1908, if any were unpaid, belonged to tfie administrator as personal property, from the death of tfie decedent, June 25, 1908, until tfie filing of the bill, the rents and profits belong to tfie heirs and not to tfie administrator, and was germane to tfie original bill; the rights of the parties to those rents and profits should have been determined. It was error for the chancellor to deny to Nettie Townsend the right to file her cross-bill for. this purpose; she should have been permitted to file it, and defendants required to answer.

Upon the contention by appellants that the court erred in finding that Albert A. Poiset had paid all rents due up to March 1, 1908, to the deceased during her lifetime, or to her husband for her, this was a question presented by the averments of the bill in this case; issue was joined thereon by the defendant, Nettie Townsend, denying that the rents had been so paid. No question was raised that a court of law was the proper forum in which to determine this question, and the parties having submitted this question to the court in this proceeding, they cannot now insist that the court did not have the right to determine that question.

It is insisted that Francis Poiset, the surviving husband, was an incompetent witness to show payment of this rent. The question of his ineompetency depends on whether his testimony was for or against his interest in this cause. If any such rent was due it was personal property belonging to the estate of Martha J. Poiset. As surviving husband he was- entitled to receive one-third of the personal estate after payment of the debts. It was to his interest to have more than sufficient personal property to pay the -debts. The effect of his testimony was to reduce the personal estate. His testimony was against his own interest. He was, therefore, a competent witness. But conceding that he was incompetent, there is sufficient competent evidence to show this rent was paid.

Appellants also insist that because one of the notes for $3,000 on which judgment was allowed against the' estate was signed by decedent jointly with Francis Poiset, the surviving husband, and the consideration therefor was the purchase of the city property in Avon, tlie title to which was conveyed to them jointly, it is not a proper claim against the estate. That fact would not deprive the owner of the note from proceeding against the estate for the amount of the note, but if the estate was required to pay it the administrator should then he required to proceed against the other joint maker for his contributive share.

It is insisted by appellants that the chancellor erred in refusing to determine by his decree the validity or invalidity of the judgments in the county court against the estate, and that the heirs should have had the right in this proceeding to determine whether their interest in the real estate should he taken for the purpose of paying those judgments. The chancellor properly found that the question of the validity or invalidity of those judgments could not he determined in this proceeding, and, therefore, should not have found there was a deficiency in the personal estate and that it amounted to $4,074.71; for .the reason that the administrator asks no relief by cross-hill but only appears as a defendant.

It has been repeatedly held that the rendering of a judgment in the county court in the settlement of an estate is not binding upon the heirs. When it is sought to subject the real estate to the payment of these judgments, the heir has a right to show either that the judgments are not proper claims against the estate, that the personal property has been misapplied or wasted, that there are personal funds which the administrator has not reduced to possession, or, in fact, anything that will defeat the right of the administrator to proceed against the real estate.

In the decree awarding partition the chancellor should not have found there was a deficiency in the personal estate or determined the fights of the administrator, as it then had no power to direct that any fund should be paid to him; unless the circuit court should finally, upon report of the commissioners that the premises were not susceptible of division, enter a decree directing a sale of the premises, it could make no provision for the administrator. It should only enter a decree subject to the rights of the administrator.' The question of what rights the administrator had in this proceeding should have been reserved until after the report of the commissioners and his rights preserved in the decree of sale,' if one was ever entered.

The administrator had a right to resort to a sale of all of this real estate, if it was necessary for the payment of debts, without any decree by a court of chancery, and the question as to whether or not the administrator should be paid any funds out of the proceeds of the sale of real estate in a partition proceeding should not be determined by the court before it is authorized to decree a sale. While it has been held that upon entering a decree of sale the Court has the right to decree that a certain amount shall be paid to the administrator for the purpose of a final settlement of the estate, any such fund being paid to the administrator must go_into his hands as the proceeds of the sale of real estate, asid the decree should direct that whatever amount is so paid to him should be held by him as the proceeds of the sale of real estate, and be accounted for by him to the County Court as such, and upon application by the administrator in that court to apply that fund to the payment of judgments allowed against the estate. The heirs will then have the right to contest the right of the administrator to so apply it.

The court properly found that Albert A. Poiset had paid taxes for the year 1908, and that he should be reimbursed therefor, as payment was made for the benefit of the heirs. If any fund should be. found to be due from him to the heirs on taking an account of the rents and profits, this should be offset against his claim for taxes.

For the errors indicated, the decree must be reversed and remanded.

Reversed and remanded.


author: Mr. PresidiNg Justice Philbrick

text:
    William Childers et al., Appellees, v. Chicago & Alton Railway Company, Appellant.
    Common carriers — burden of proof to establish assent of shipper to limitations upon liability. The burden of proof is upon the carrier to show that a contract of shipment was signed by the shipper with full knowledge of the conditions and terms expressed in the contract which limited the liability of the carrier.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. B. Weaver, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed December 13, 1911.
    PattoN & PattoN, for appellant,- Silas H. StrawN, of counsel.
    Smith & Friedmeyer, for appellees.
   Mr. PresidiNg Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiffs against defendant to recover damages alleged to have been occasioned to a carload of horses shipped by plaintiffs from Peoria to Springfield over defendant’s railroad. Plaintiffs recovered a judgment against defendant for $300,. from which this appeal is prosecuted.

The evidence discloses that plaintiffs” were dealers in horses at Springfield, Illinois, that they purchased a carload of horses in Peoria from the Peoria Livestock Company. One Clark, a horseman in Peoria, loaded the horses for plaintiffs and delivered them to the defendant for shipment. He signed plaintiffs’ name to the shipping contract as their agent. He had made a great many shipments of horses over railroads, and was familiar with the contracts usually'signed for such purpose. The horses were' shipped from Peoria on November 18, 1909, at about nine o’clock p. m. and arrived in Springfield on the following morning at about five o ’clock and were unloaded at a stock pen in Springfield at about eleven o’clock on the morning of the 19th. When the cars were unloaded plaintiffs discovered that some of the horses had been bruised and were otherwise injured. They called the attention of the agent of the defendant at Springfield to this fact, and under his direction prepared and presented to him for forwarding to the proper department a claim for the damages alleged to have been occasioned to these animals. The amount of this claim as then presented was $205. Defendant failed to make settlement as demanded, and this action is .the result.

The charge of negligence in the declaration is improper, rough and negligent management in the handling of the train in which this car was shipped between Peoria and Springfield. The horses showed more or less rough usage on the trip. . There is no direct evidence in the record showing any unusual handling or movement of the train; the evidence does show, however, that the door of the car in_which the horses were shipped was by some means'broken off; this was first noticed by men in charge of a train following the one in which this car was while the trains were at a station known as San Jose. The evidence further "discloses that on one end of the car several boards were broken and other indications of rough handling of the car were shown. It is insisted by defendant, however, that the car door was broken off by reason of the vicious propensities of the horses in the car, that they were not tied and it was possible for them to have moved about in the car from one place to another, and that the horses became vicious, kicked, fought and bit each other, and that the car door was kicked off by the horses. There is no direct evidence of how the car door was broken off, and these facts were submitted to the jury and it was their province to determine whether or not from the evidence disclosed the horses were injured by negligent management and control of the car or from their own vicious dispositions. Upon this question they have determined these facts against the contention of the defendant.

There is no dispute in the record as to the amount of damage occasioned to the horses, and plaintiffs admit that the jury were not warranted in finding a verdict in excess of $275, and they now offer to remit $25 from this judgment and authorize this court to enter a remittitur. The amount of plaintiffs’ original claim having been made immediately on receipt of the horses before the full extent of the injuries to the horses had been ascertained and the proof not only showing damages in excess of that amount but that two other horses were injured, the plaintiffs are not limited in their recovery to the amount first claimed.

Defendant insists .that by reason of the contract signed by- plaintiffs by their agent, Clark, the liability for damage to these horses was limited to gross, wilful or wanton negligence on the part of the defendant, and that by reason thereof a less rate was granted on the shipment than would have been granted under the usual published rates of the defendant. It also insists that in the shipping contract the value of each animal is limited to $100, and the value of the horses shown by the evidence ranges from $135 to $275 each, that even if a recovery can be had the judgment should be reduced to the proportion which each horse valued at $100 would sustain to the value of each horse injured •at the value proven. It has been repeatedly held by the courts of this state that where a contract of shipment is signed by the shipper upon presentation by the railroad company the burden of proof is upon the defendant to show that the contract was signed with a full knowledge of the conditions and terms expressed in the contract which limit the liability of the defendant, and we cannot say upon this record that the jury were not warranted in finding that neither plaintiffs nor their agent, Clark, were informed or had any knowledge of the conditions limiting the liability of the defendant, either as to negligence, value of the horses or the rate charged, as expressed in this contract. The statute prohibits limiting of the common law liability of a railroad company in the shipment of stock or freight except upon a specific contract entered into and signed by the shipper, and we are not prepared to say that the jury were not warranted in finding that the shipper did not assent'to or know the conditions contained in the contract.

It being conceded by plaintiffs that the judgment of the trial court is for $25 in excess of the amount of damages proven and the defendant having been compelled to appeal to this court, where the plaintiffs authorize a remittitur of $25 on the judgment rendered, plaintiffs will be required to pay the costs of this appeal, and judgment will be entered in this, court for $275 against defendant.

Judgment affirmed for $275; plaintiffs to pay costs of appeal.

Affirmed on remittitur.


text:
    William Nunes, Appellant, v. J. H. McFarlin, Appellee.
    Statute of fkauds — when promise within. The promise of a person to pay an obligation which is to arise from the use of property by a third person, unless in writing is within the statute of 'frauds where the credit was extended to such third person.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.
    J. 0. Priest, for appellant.
    Kirby, Wilson & Baldwin, for appellee.
   Mr. PresidiNg Justice Philbrick

delivered tlie opinion of the court.

This is an action brought by William Nunes, plaintiff, against J. H. McParlin, defendant, to recover the reasonable value of the use of certain personal property claimed by plaintiff to have been borrowed from the plaintiff by one L. A. McLain. ■ Plaintiff attempts to hold defendant liable for the value of such use upon the theory that prior to the time of the hiring of said personal property by plaintiff to the said L. A. Mc-Lain, defendant McParlin promised to see plaintiff was paid therefor.

The cause was tried in the court below by agreement without a jury. The court found the issues for the defendant and rendered judgment against the plaintiff, from which he prosecutes this appeal.

No questions of law were submitted by either plaintiff or defendant to be passed upon by the trial court. Consequently, the appeal to this court presents only questions of fact.

The evidence discloses that defendant was a general contractor to do certain work in the building of an interurban line between Jacksonville and Springfield, Illinois; that L. A. McLain was a súb-contractor of defendant upon this work. McLain did not possess the necessary scrapers, dump wagons, etc., for the prosecution of this work, and plaintiff rented him certain vehicles to be used in the prosecution of the work. Arrangements were made for renting this property to Mc-Lain prior to any conversation or communication between plaintiff and defendant regarding it. Consequently, any promise that defendant may have made to the plaintiff whereby he agreed to pay plaintiff for the use of the propery rented to McLain was within the Statute of Frauds and void, and for which defendant' cannot be held liable. It is contended, however, by plaintiff that before the property was rented to Mc-Lain defendant promised to see that plaintiff was paid for the use of the property. Even if this contention of plaintiff was correct, the record discloses that instead of an unconditional promise, defendant’s promise was only to pay such hills as McLain might O. K., and that McLain did not 0. K. this hill, and never authorized or requested defendant, to pay it.

Upon either theory the finding of the trial court was correct, and is fully warranted by the evidence.

The judgment is affirmed.

Affirmed.


author: Me. Peesidihg Justice Philbrick

text:
    The People of the State of Illinois, Defendant in Error, v. Stanley Bitzkus, Plaintiff in Error.
    1. Judgments — when refusal to set aside ground for reversal. While the question of setting aside an order dismissing an appeal foi want of prosecution is ordinarily one addressed to the sound discretion of the trial court yet if such discretion is arbitrarily exercised a reversal will be ordered. Held, in this case, that there was an abuse of discretion in failing to allow to the defendant under prosecution for disturbing the peace reasonable opportunity to obtain counsel after counsel which the defendant had relied upon, had unexpectedly withdrawn from the case.
    2. Criminal law — when affidavit confers jurisdiction. An affidavit sworn to before a notary public is sufficient to confer jurisdiction as to a criminal charge over which such justice has jurisdiction.
    Error to the Circuit Court of Macoupin county; the Hon. Truman A. Snell, Judge, presiding. 'Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 13, 1911.
    James B. Searcy, for plaintiff in error.
    James H. Muephy and Victos Hemphill, for defend-ant in error.
   Me. Peesidihg Justice Philbrick

delivered the opinion of the court.

On October 24, 1910, John Cook subscribed to an affidavit before a notary public making complaint that defendant and Joe Bitzkus, bis brother, were guilty of disturbing the peace, challenging to fight, etc. This affidavit was filed with a justice of the peace as a complaint and a warrant issued thereon by the justice. Defendant and his brother were arrested, tried, found guilty by a jury before the justice and fined fifteen dollars. An appeal from the judgment was taken to the County Court. After the convening of the term of the County Court to which the appeal was taken, the death of the brother of defendant was suggested and the cause and appeal were dismissed as to' him.

On the morning on which the cause against defendant was set for trial in the County Court defendant appeared and awaited the call of his case; at about ten o’clock it was called for trial, and defendant’s attorney then announced to the court that he withdrew his appearance as attorney for defendant. It was the only case left to be tried on that day. The court then informed defendant, who is a foreigner, barely able to make himself understood by the use of the English language, that it would be necessary for him to procure other counsel. At the suggestion of the presiding judge, he left the court room for the purpose of employing an attorney to represent him. He visited one attorney whose services he was not successful in engaging, he then visited another whose services he secured, and with this attorney he returned to the court room after an absence of about fifteen minutes. When he returned with his attorney he found the trial court had dismissed his appeal on motion of the state’s attorney and had adjourned court for the day. On the convening of court the following morning, he appeared with his counsel and presented to the court by affidavits facts which if true show his innocence,'also showing his diligence in securing other counsel, together with an affidavit of the attorney whom he had engaged to represent Mm, and asked to have the order dismissing the appeal set aside. The court denied this motion, and defendant appeals to this court.

While the question of setting aside an order dismissing an appeal for want of prosecution is ordinarily-addressed to the sound discretion of the trial court, the court must not exercise this discretion arMtrarily. Mason v. McNamara, 57 Ill. 274; Dunlap v. Gregory, 14 Ill. App. 601.

Defendant’s counsel having withdrawn upon the call of the case for trial and the trial court having informed defendant it would be necessary to secure counsel and having permitted him to leave the court room for the purpose of engaging counsel, it was the duty of the court to have given defendant a reasonable time in which to engage other counsel; it was an abuse of the discretion of the court to dismiss the appeal before defendant had had a reasonable time to return with counsel. Defendant has prosecuted his defense, so far as the record shows, in good faith and he should have been permitted to have submitted his cause to a jury upon the appeal taken to the County Court.

The trial court erred in refusing to set aside the order of dismissal and in refusing to reinstate the cause for trial in that court, and for this reason the judgment must be reversed.

Counsel for defendant insists that the fact that the affidavit was subscribed before a notarypublie did not confer jurisdiction upon the justice of the peace, but that in order to give the justice of the peace jurisdiction it was necessary that the affidavit should be subscribed before'the justice. This contention is untenable for the reason that article 18, chapter 79, Hurd’s Revised Statutes, 1909, is as follows: “In all cases of offenses of which a justice of the peace has jurisdiction he may, upon affidavit of any competent person, issue his warrant * * * ”.

And section 2 of chapter 101, on Oaths and Affirmations, provides that: ‘ ‘ * * * notaries public shall have power * * * to administer all oaths of office and all other oaths authorized or required of any officer or other person, and to take affidavits concerning any matter or thing, process or proceeding, commenced or to he commenced, or pending before any justice of the peace * *

These sections clearly gave the justice jurisdiction to issue his warrant upon affidavits subscribed before a notary public.

The judgment is reversed and the cause remanded.

Reversed and. remanded.


author: Mr. Justice Thompson

text:
    Malinda Garman, Appellee, v. City of Waverly, Appellant.
    1. INSTRUCTIONS — when as to negligence in presuming that side-wallc is safe, erroneous. If the person using a sidewalk knows that the same is not safe it is error to instruct the jury that such a person may indulge in the presumption that such sidewalk was safe for ordinnrv travel.
    2. Instructions — must not assume facts in dispute. An instruction is erroneous which is likely to be construed by the jury as assuming that the sidewalk in question in an action for personal injuries was defective.
    3.' Instructions — must he confined to the evidence. An instruction is erroneous which does not restrict the jury to the evidence in determining the issues before them.
    4. Instructions — when upon ordinary care erroneous. An instruction upon this subject is erroneous as applied to the care to be exercised in using a public sidewalk which omits the element of knowledge by the plaintiff of the condition of such sidewalk.
    Action in ease for personal injuries. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    C. F. Wemple and Kirby, Wilsoh & BaldwiN,' for appellant; JohN A. Bellatti, of connsel.

      W. N. Hairgrove, C. C. Terry and M. T. Layman, for appellee.
   Mr. Justice Thompson

delivered tlie opinion of the eonrt.

This is an action in case begun by plaintiff seeking to recover damages for injuries sustained by her through falling from a sidewalk into a stairway leading into a shop in a-basementon the south side of the public square, in the city of Waverly, about nine o’clock at night on the evening of August 27, 1910. The declaration avers that the city was negligent in permitting the stairway so constructed to remain unguarded.

A jury returned a verdict in. favor of the plaintiff for $2,500. A remittitur of $500 was entered, and judgment rendered for $2,000. The defendant appeals.

The evidence shows that a stairway six feet wide, leading from the sidewalk down into a basement shop, projected two feet into the sidewalk. The stairway led .to a room, the floor of which is about eight feet below the sidewalk, and was guarded at either end by an iron railing. The stairway had been in that condition for about twenty years. The testimony of ap-pellee shows that she was 52 years of age and had lived in Waverly eight years; that she lived about a quarter of a mile from where the accident occurred; that she passed the stairway frequently; that she did her shopping at the principal dry-goods store in Wa-verly which is located immediately east of the building the stairway complained of is in; that she knew the stairway was there but ‘ ‘ did not know it was out in the walk like it was ’ ’ until she was hurt and that she had been down in this basement shop once. Appellee and her husband went down town the evening of the accident between sunset and dark. She heard there was preaching over at the southwest corner of the square and went to hear it. The preaching was in front of this stairway, where a Mormon preacher spoke for some time in the street and a crowd, through which a policeman kept a passageway open, gathered on the sidewalk. After the preaching was over, and while looking for her daughter, she fell down this stairway and broke her armi.

Various errors are assigned as to the admission and rejection of evidence, but the rulings of the court were correct in that regard. It is only necessary to consider the assignment concerning instructions. The first instruction for plaintiff is:

“The jury are instructed, as a matter of law, that any person traveling upon a sidewalk of a city, which is in constant use by the public, has a right either in the day or night time, when using the same with due diligence and care, to presume, and to act on the presumption, that it is safe for ordinary travel throughout its entire width, and free from all dangerous holes or obstructions. ’ ’

From the evidence of appellee a jury might find that she knew all about the situation of the stairway. She admits she knew it projected into the sidewalk but did not think it projected so far. Knowing the stairway was there, she could not presume it was not. The instruction quoted is correct as a general proposition where a person has no knowledge of a defect, but it is not the law where a person knows that the sidewalk is not safe. A person, knowing a sidewalk to be unsafe, has no right to presume it is safe and -act on such presumption. Concerning such an instruction it was said in City of Spring Valley v. Gravin, 182 Ill. 232: “Had there been any evidence to show that appellee was aware of the condition of the street the instruction would have been improper,” and in City of Sumner v. Scaggs, 52 Ill. App. 551, the case was reversed because of error in giving such an instruction. The giving of abstract propositions liable to mislead a jury has invariably been condemned.

The second instruction is awkwardly worded, and is liable to be construed as assuming that tbe sidewalk was defective. -!-

Tbe third instruction does not refer to tbe evidence and tells tbe jury that if they find that tbe stairway built in said sidewalk was not kept in. such condition as to render said sidewalk safe for pedestrians and plaintiff was injured while in tbe exercise of due care, then they will find for tbe plaintiff. Tbe jury should be limited to tbe evidence 'for tbe source of their belief.

Tbe fifth instruction in defining due care omitted tbe element of knowledge of tbe plaintiff if she has any.

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

Reversed and remanded.


text:
    B. F. Neal, Appellee, v. Robert G. Bloomfield, Appellant.
    Brokers ' and factors- — when commission cannot he recovered. A broker is not entitled to compensation for services rendered in effecting a sale of property if be bas not acted in good faitb towards tbe vendor.
    Appeal from tbe Circuit Court of Cumberland county; tbe Hon. Wm. B. Scholiteld, Judge, presiding. Heard in tbis court at tbe October term, 1911.
    Reversed with finding of fact.
    Opinion filed October 13, 1911.
    Greathouse & Bussard, for appellant.
    Brewer & Brewer, for appellee.
   Mr. Justice Thompson

delivered tbe opinion of the court.

Tbis is a suit brought by B. F. Neal, against Robert G. Bloomfield, to recover for services averred to have been rendered by Neal for Bloomfield in relation to a sale of a dwelling bouse and eight acres of land in tbe village of Toledo, Illinois. A verdict was returned in favor of the plaintiff for $75 on which judgment was rendered and the defendant appeals.

The evidence shows that appellant, who had formerly lived in Toledo, sold his business there, retaining the ownership of his residence,, and moved to Oklahoma City. About October 1, 1909, appellant received a Toledo newspaper from which he saw that Anslem Armer, a business man in Toledo, had sold his residence in that village. Appellant at once wrote to Ar-mer seeking to sell to him appellant’s Toledo residence. Armer answered the letter and the correspondence was kept up until December 20, 1909, when a sale of the property was made to Armer for $3,750. On November 5, 1909, appellee wrote to appellant from Toledo stating that he thought that John Tracy and he might be able to sell appellant’s residence property to a horseman. Appellant, on November 8, replied to the letter stating that his price was $4,000 and if appellee had a buyer to have him make an offer and he would allow two per cent commission. These two letters were tlie only letters passing between appellant and ap-pellee until December 24, when appellee wrote appellant that the horseman had bought property in Charles^ ton, but that Armer offered $2,500 and some property in Toledo for appellant’s residence and asked appellant what he thought of the offer. This was the first information appellant had that appellee had talked to Armer about the property and the letter was written four days after the deed had been made to Armer.

Appellee testified that he learned through Tracy that Armer wanted the property, and upon learning that fact, that he went to Armer and talked with him about it; that he told Armer that one Zite Jones wanted to buy it but if he, Armer, wanted it he would not show it to Jones or to any one else, and that he kept a buyer away because Armer wanted him to do so.

It is clear from the evidence that appellee not only was not the procuring canse of the sale to Armer, but that he did not act in good faith with appellant. Ap-pellee'conld not act in the double capacity of agent for appellant, and at the same time be an agent for a purchaser in endeavoring to have him get the property and not some other person, who might'have given more for it. Bunn v. Keach, 214 Ill. 259; Young v. Trainer, 158 Ill. 428. Good faith on the part of appellee, as an agent of appellant, required that he should endeavor to sell the proerty to whoever would give the most. Under the evidence the appellee is not entitled to any commission. The judgment is reversed with a finding of fact.

Reversed.

Finding of fact: The appellee was not the procuring cause of the sale.


text:
    Charles A. Johnson, Appellant, v. C. F. Peterson, Appellee.
    1. Evidence — when admissions competent. Where admissions are made by a party to a suit, sueh admissions are original and substantive evidence against him, and not necessarily for impeachment, and may be proved without laying á foundation by asking him if he made the statements.
    2. Assumpsit — when recovery cannot be had on quantum meruit. In the absence of evidence as to the value of the services sued for, a recovery cannot be had upon a quantum meruit.

    Assumpsit. Appeal from the Circuit Court of Eord county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed November 1, 1911.
    Johnson & Johnson and Frank Lindley, for appellant.
    Cloud & Thompson, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit in assumpsit brought by a real estate agent, to recover commission for procuring a purchaser for an eighty acre farm owned by defendant. The declaration contains only the common counts. The defendant filed the general issue. Upon trial, a jury returned a verdict in favor of the defendant, on which judgment was rendered. The plaintiff appeals.

Plaintiff contends that the trial court erred in permitting questions to be asked a witness as to certain admissions and statements made by plaintiff, which were contradictory to the evidence given by plaintiff, without first requiring the plaintiff to be asked if he had not made such statements. Where admissions are made by a party to a suit, such admissions are original and substantive evidence against him, and not necessarily for impeachment, and may be proved without laying a foundation by asking him if he made the statements. 1 Encyc. of Ev. 610 , Brown v. Calumet River Ry. Co., 125 Ill. 600; Borrowers & Investors Build. Ass’n v. Cochrane, 103 Ill. App. 29.

Plaintiff testified that in October, 1910, he went to see the defendant, who authorized him to sell his farm for $150 an acre net to him, for $4,000 cash, the balance of the purchase money to be secured by a first mortgage on the farm to run five years with five per cent interest, and that plaintiff was to have as his commission all that the farm sold for over that amount. Plaintiff further testified that on November 3rd, he took Benjamin Dyer to see the farm; that on November 5th Dyer told the plaintiff that he would purchase the farm at $160 per acre and pay $4,000 on March 1st, and give a first mortgage for the balance; that plaintiff that afternoon met defendant on the streets of Paxton and told him that he had sold the farm to Dyer for $4,000 down, and a first mortgage for the balance, and that defendant then informed him he had a right to raise the price when he saw fit and that a real estate man had told him he could get $160 an acre net and he had raised the price to $160 per acre. Defendant testified that he authorized plaintiff to sell his farm at $150 an acre and that plaintiff was to have a commission of $1 an acre; that he told plaintiff that another man named Eoden was also an agent to sell it; that he saw plaintiff on November 5th, on the streets of Paxton, and told him that he had raised the price of his land to $160 an acre; that plaintiff did not tell him at that time or any other that he had found a purchaser, but that plaintiff did tell him that he expected a man "to come in next Monday” and that plaintiff never mentioned Dyer’s name to him; that he had told plaintiff he was going to rent the farm on the 5th, and when plaintiff told him a man was coming on Monday he waited until the 9th of November and then called plaintiff by telephone and. asked him if he had anybody to buy the farm and plaintiff told him no, and that he then rented it to plaintiff’s cousin.

Plaintiff testified that he told Dyer on the evening of November 5th, that defendant wanted more money, and Dyer said let it go, he would not give any more. Plaintiff did nothing thereafter towards selling the farm. On November 24th Dyer through another agent contracted for the purchase of the farm at $165 an acre, paying $1,000 cash and agreeing to pay $2,500 March 1st next, and to give a first mortgage for the balance.

The evidence as to the terms of the agency was conflicting and the jury were justified in finding that the minds of the parties did not meet. The evidence of plaintiff shows that he contracted not to furnish a purchaser but to sell the farm and that plaintiff did not sell the farm.

There was no evidence as to the value of the services rendered, therefore no recovery could be had on a quantum meruit on the common counts. Parmley v. Farrar, 169 Ill. 606; Hart v. Carsley Mfg. Co., 221 Ill. 444.

The jury were fully instructed on the part of the plaintiff and we find no error either in giving or refusing instructions. The judgment is affirmed.

Affirmed.


author: Mr. Justice ThomfsoN

text:
    Theron A. Powers et al., Appellants, v. Walter Phillips, Appellee. Theron A. Powers et al., Appellants, v. Crip Bogard et al., Appellees. Theron A. Powers et al., Appellants, v. Guy Simpson et al., Appellees.
    1. Contempt — upon what decree cannot he predicated. Contempt for the violation of a decree will not he adjudged if such decree was obtained by consent and by corrupt means.
    2. Fraud — how may he established. Fraud is rarely proved by direct evidence, but is proved by facts and circumstances which raise an inference of fraud.
    Appeal from the Circuit Court of Mason county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.
    LeForgee, Vail & Miller, C. W. GreeNfield and I. R. BrowN, for appellants.
    W. H. Dieterich, for appellees.
   Mr. Justice ThomfsoN

delivered the opinion of the court.

In February, 1910, a decree was entered in the circuit court of Mason county restraining certain defendants and their agents and servants, together with all parties having notice of the decree, from going upon certain described lands for the purpose of bunting or fisbing. Subsequently three petitions were filed each asking for a rule against the respondents therein to show cause why they should not be attached for contempt for violating the injunction. Writs of attachment were issued and the respondents answered the rule in each case by alleging that the injunction was obtained by fraud practiced on the court by the complainants and certain defendants named, Boyd, and the attorney for the defendants, and alleging that'Crane Lake, the body of water upon which the injunction restrained parties from fishing and boating, is navigable and denying that the complainants were entitled to the injunction obtained by them. The cases were consolidated and the court after hearing the evidence entered an order discharging the rule. The petitioners appeal.

The record discloses that in March, 1909, the petitioners filed a bill in chancery in the circuit court of Mason county, praying for an injunction restraining certain parties from trespassing on certain lands,' of about the extent of 1,500 acres, and the waters overlying part of said described lands. Three other bills in chancery of the same nature were filed by other complainants at the same time seeking to restrain the same defendants from trespassing ón other lands in the same vicinity. These chancery suits were not consolidated but the same counsel acted for all the complainants, and the expenses of the litigation were paid by the complainants in proportion to the acreage claimed by each. The bills allege that the complainants are the holders and owners and in possession of the lands therein described; that said lands are in part covered with water of various depths ranging from the margin to fifteen or twenty feet, which waters connect with the Sangamon and Illinois rivers, together with certain lakes and sloughs which are not meandered ; that said waters are stocked with fish; that wild fowl congregate in large numbers upon said lands and waters; that said lands and waters are of no value for agricultural purposes but are of great value for fish and game preserves and that complainants have expended large sums of money in protecting and caring for said game; that the defendants, residents in that locality, persist in going upon said lands and waters of complainants for the express purpose of hunting ánd fishing thereon, after having been requested to keep off, and that the defendants state they intend to continue to so trespass on said lands and waters; that complainants have repeatedly caused certain of the defendants to be arrested and fined for said trespasses; that defendants insist they have the right to go upon said lands for the purpose of fishing and hunting, and that said defendants carry guns and rifles and shoot at random and are a menace to the lives of complainants; that some of the defendants with other parties are handed together as the “Hunter’s and Fisherman’s Protective Association;” that.the defendants are insolvent; that the damages so caused to complainants are irreparable and cannot be computed in money and that complainants are remediless except in a court of equity. The bill makes the Hunter’s and Fisherman’s Protective Association of Illinois and fifty-eight individuals, parties defendant, and prays an injunction restraining the defendants and such other parties as have notice of the injunction from going on said land for the purpose of fishing or hunting. Summons was served on forty-one of-the defendants.

Thereafter many of the defendants met and 'selected a committee to secure counsel to defend against the suits. A subscription was taken up to employ counsel; W. F. Boyd, one of the defendants, subscribed $100 while the average subscription varied from $1 to $5. The total subscriptions amount to about $400. "W.- F. Boyd was one of the committee to employ counsel and he employed an attorney who filed answers for himself and thirty-two other defendants in each of the four chancery suits. The canses were referred to the master to take the evidence, and it was taken and reported to the court. Upon the coming in of the master’s reports the complainants dismissed the bills against all the defendants who answered except William Boyd, John Boyd, Henry Boyd, Orlando Bntler, Jeff Butler, Brack Lane, William Harris, Henry Swan, Charles Powell, John Breeden and Thurman Breeden. The attorney for the defendants then withdrew the answers of all the remaining defendants except the Boyds, and the defendants whose answers had been withdrawn were defaulted.

Decrees were then entered by consent against the Boyds and against the defaulted defendants, finding among other things that complainants are the owners in fee simple or in possession by lease or otherwise of the real estate described in the bill; that said real estate was purchased or leased for the purpose of a game or fishing preserve, and that the waters overlying said lands are non-navigable and not meandered. The decrees perpetually enjoin and restrain the defendants, their agents and servants, together with all persons having actual notice of thé issuance of the decrees, from going upon said lands.

Walter Phillips and Crip Bogard are the only respondents who were parties to the injunction suits. The bills were dismissed as to them “for want of equity.” The remaining respondents were not parties to the bills in any way. The evidence taken on the contempt proceeding shows that W. P. Boyd, the most active defendant in the injunction 'suits, received about $300 from the subscription to employ counsel on behalf of the defendants to resist the granting of the injunctions; that he “handled the financial part for all the parties;” “that he collected money for the defense;” and that he employed the solicitor who did draw and file the answers for those who answered, and to whom he paid the money collected. One of the bills in chan-eery was filed by John H. Wehner as complainant. Respondents, npon the hearing under the rule to show cause, called Wehner as a witness; thereupon counsel for petitioners admitted in open court “that in the original proceedings in which the aforementioned decrees were entered on behalf of the several complainants, the counsel fees of the solicitors for the several complainants in the said causes were assessed against the complainants in the said causes according to the acreage of the lands owned and controlled by the said several complainants in said causes, said lands being the lands which were the subject-matters of the said suits, against trespasses on which lands the injunctions in the said several suits had issued. Counsel for petitioners also admitted in open court that the complainants in the aforesaid causes paid to one L. A. Jarman, solicitor for the defendants, or some one of them in the said causes, the sum of $1,500 in settlement of the said causes with the defendants, John Boyd, William Boyd, and Henry Boyd, defendants in the said causes, which said sum of $1,500 was assessed against the said complainants in said causes on the acreage basis aforesaid.”

The proof further shows that W. F. Boyd received secretly from the complainants as a part of the settlement the right to fish in at least most of the waters that were in controversy. The payment of the $1,500 was also treated as a secret and on the trial of this matter Wehner was instructed by his counsel not to answer questions concerning it. It was paid by complainants in these suits with the other complainants to buy up Boyd, who had retained counsel for all the defendants who filed answers. It is not claimed there was any authority given by the defendants to their counsel, except by the purchased defendant Boyd, to withdraw the answers or that the defendants whose answers were withdrawn had any notice of such action. After the agreement for the payment of the $1,500 to the Boyds and the granting to W. F. Boyd of fishing rights, Boyd then wanted the injunctions against the other defendants as strong as possible so that he would not be interfered with by other defendants fishing. Petitioners secretly paid money to and made concessions to the principal defendant in the cases, — the defendant who in the bills of complaint they name as the most aggressive and persistent. They took decrees against him restraining him from hunting or fishing on the land and at the same time secretly gave him the right to fish. He did not buy the right to fish from the complainants, but they while apparently taking injunctions against him, conceded to him secretly what they were enjoining him from, and gave him and the other two Boyds $1,500 in addition to the right to W. F. Boyd to fish, yet neither the right of Boyd'to fish nor the receipt by him and his brothers of any money is mentioned or in any way referred to in the decrees. No reason is suggested by petitioners why any concession was made to W. F. Boyd or payment made to the Boyds. W. F. Boyd gave the complainants nothing therefor, unless it was the withdrawal of the answers of the other defendants and consent decrees.

Fraud is rarely proved by direct evidence, but is proved by facts and circumstances which raise an inference of fraud. Swift v. Yanway, 153 Ill. 197. The facts and circumstances proved in the record show very clearly that petitioners did not venture to rely on the proof made by them in the injunction suits, but that they resorted to the fraudulent expedient of buying out the defendant entrusted with the management of the defense.

“Whenever a judgment or decree is procured through the fraud of the parties or by collusion or both for the purpose of defrauding some third person, he may escape from the injury thus attempted by showing even in a collateral proceeding the fraud or collusion by which the judgment or decree was obtained.” 2 Freeman on Judgments, 111-336; 1 Black on Judgments, sec. 293. “A collusive judgment is open to attack whenever and wherever it may come in conflict with the rights or interests of third persons; and fraud is not a thing that- can stand, even when robed in a judgment.” Atlas Nat. Bank v. More, 152 Ill. 528; Elting v. First Nat. Bank, 173 Ill. 368; Bank of Danville v. Cunningham, 48 Fed. R. 510.

Two of the respondents, Walter Phillips and Crip Bogard, were defendants in the original injunction suits. The hills were dismissed as to them for want of equity. There is no reason why they should desire to question the decrees since they do not enjoin them any more than they enjoin complainants. The remaining respondents were not parties to the original bills. The injunction suit was a civil proceeding. No person not a party to those suits has the right to have them reviewed. None of the respondents are employes, agents, servants, or in any way in privity with any of the defendants. They are not co-conspirators, sympathizers or abettors of the defendants in the original bills. They are citizens having the common right that all citizens have in public waters of the state. They assert in their answers to the rule-that the waters, where the alleged trespasses were committed, were public navigable waters.

The proof shows that the decrees against the Boyds are consent decrees, corruptly and secretly bought by the payment of money and the concession to W. F. Boyd of rights of fishing, neither of which facts is •mentioned in the decrees. Contempt proceedings cannot be sustained against respondents, not parties to the original suits, under decrees obtained in such a manner. Bespondents may not by such decrees be foreclosed of their rights or required to respect them. The rule to show cause was properly discharged and the order is affirmed.

Affirmed.