text:
    District Grand Lodge No. 4, etc. v. Rosa Cohn.
    I. Voluntary beneficial associations—Suspension.—Defendant was a voluntary beneficial association, composed of subordinate lodges. The constitution adopted by the defendant for the government of its subordinate lodges provided that “ the manner of suspension for the nonpayment of dues and assessments shall be detailed in the by-laws of every lodge, and is left to their option.” The subordinate lodge in question never adopted any by-law on the subject of suspension as required by the foregoing provision. Deceased was declared suspended from such lodge for non-payment of dues. Six days before his sudden death by heart disease, he gave the amount due to the secretary, who took the money, and said he would bring the matter .before the association at its next meeting. Held, that the attempted suspension of deceased was wholly without authority, and void; that said payment was effectual to relieve deceased of the charge of the delinquency, and that he was in good standing at the time of his death.
    2. By-laws—Custom.—The fact that the subordinate lodge, in the absence of a by-law, had been accustomed to pursue a particular course of procedure as to suspensions, did not, under the circumstances of this case, give such custom the force of a by-law.
    Appeal from the Superior Court of Cook county; the Hon-Elliott Anthony, Judge, presiding.
    Opinion filed December 8, 1886.
    This was a suit brought by Eosa Cohn, widow of Joseph Cohn, deceased, against the District Grand Lodge No. 4, Order KA-her Shel Barzel, to recover the sum of $1,000, payable by the rules of the order to the widow, or other designated beneficiary of deceased members of the subordinate lodges in the district, out of the endowment fund in charge of said Grand Lodge. By agreement of the parties, the cause was submitted to the court below for trial, without formal pleadings, upon an agreed statement of the facts, a jury being waived. At such trial the court found for the plaintiff, and assessed her damages at $1,001, and for that sum and costs the plaintiff had judgment.
    From the agreed statement of facts it appears that Germania Lodge No. 83, Order Kesher Shel Barzel, is one of the subordinate lodges within the jurisdiction of the defendant Grand Lodge, and that said Grand Lodge and subordinate lodge are voluntary organizations governed by a constitution and bylaws which provide, among other things, for the creation of an “endowment fund” for the purpose of securing to the widow, children or legatee of every member who should die, an endowment of $1,000. To create such fund each lodge was required to contribute $1 for each member initiated, and an assessment of $1.50 for each member every month in the yeai1 except December and January; and it was provided that the several lodges should be responsible for the payment of all assessments according to the number of its members entitled to endowment, but that the mode of collecting the same from their members, either as a part of the regular dues or otherwise, should be determined by each lodge in its by-laws. In ease of the death of a member, the secretary of his lodge was required to send to the secretary of the endowment fund a certificate, stating the name, age and residence of the deceased, the cause, date and place of his death, and that at the time he was a member in good standing, and also the name and address of the beneficiary to whom the money should be sent. It was further provided that, on receipt of such certificate, if it should be found to be correct, and if the lodge should not be delinquent, the sum of $1,000 should be remitted by the Grand Lodge to the beneficiary named in the certificate.
    Among the provisions of the constitution adopted by the defendant Grand Lodge for the government of its subordinate lodges were the following:
    “ It shall be the duty of the secretary of each lodge to report at every regular meeting the names of any members in arrears. The manner of suspension for the non-payment of dues or assessments shall be detailed in the by-laws of every lodge, and is left to their option.
    “A member suspended for the non-payment of dues or assessments, and making application within ninety days thereafter, may be re-instated by a two-thirds majority of the members present and paying all his arrears.
    “ Every brother of the order obligates himself to support the constitution and laws of the order, and to conform to the laws, rules and regulations of the lodge of which he is a member.
    “Every lodge shall govern its own internal affairs, subject - to such restrictions as are imposed by the organic laws of the order.”
    It further appears that the laws of the order, as revised and adopted by the Supreme Lodge, of which the defendant Grand Lodge is a subordinate branch, provided among other things as follows:
    “A brother shall be considered in good standing if he shall have paid all charges, dues and fines against him, in the manner and at the time provided by the laws of his respective district and lodge, and if he shall not be under a sentence of suspension.”
    The by-laws of Germania Lodge provided, among other things, as follows:

      “ The regular meetings of this lodge occur on the second and fourth Sundays of each month.

      “ Special meetings, when called for by five members in good standing, stating in writing the purpose of the meeting, or if the president deem it necessary, may be had.
    “ At the last meetings in the months of March, June, September and December, which are the regular general meetings, as well as at all special meetings, all members living in this city (Chicago) shall have written invitations.

      “ Each member must pay a regular quarterly due of 82, payable at the last meeting in the months of March, June, September and December, of which twenty-five cents are payable to the United Hebrew Belief Association; also, the amount for paid night watches with sick members shall be chargeable to the members pro rata. For deaths in this district, the members shall pay the dues imposed by the board of endowment within thirty days, to the lodge.
    “The financial secretary shall keep proper accounts between the brothers and the lodge, receiving all moneys, and upon receipts thereior, giving them to the treasurer. He shall remind brothers in arrears of their delinquency, and shall report to the lodge such members as are indebted longer than the legal time.
    “ A member who does not pay his quarterly dues, fines and other demands to the lodge at the maturity of the legal time, may be declared in arrears, and he loses his financial demands on the lodge, as well as the right to vote and speak, and he recovers said rights only when he shall have paid his whole debt to the lodge.
    “Ho part of these by-laws, or of those which may be adopted in a legal way in the future, can be recalled, annulled, improved or amended, unless upon a written proposition of at least five members handed into the lodge. Said proposition must be read in two succeeding meetings, and if, in the third meeting, which must either be a quarterly or a special meeting, it shall have been read once more, and after debate two thirds of the votes favor it, it shall be considered a law.”
    The records of a special meeting of said lodge held May 25, 1884, contain the following:
    “ The president opened the special meeting for this evening. The resolution of brother M. Ohnstein was then read a third time as follows: ‘ That the quarterly dues of members
    of this lodge shall amount to five dollars and twenty-five cents; that assessments and all other contributions to the lodge be included therein, and that this rule govern the lodge for the year 1884.’ Upon a vote taken, the resolution was adopted, and was delared by the president as being the law from this date.”
    It is admitted that during the lifetime of the plaintiff’s husband, said Germania Lodge had no other printed by-laws in reference to arrearages and suspensions of members, or to their re-instatement after suspension, than those above set forth; and that said lodge had passed no by-law on the subject of suspensions such as is required by the constitution of said Grand Lodge, but has been accustomed to act as follows :

      “ A member who does hot pay his dues and assessments to the lodge within four weeks after the quarter, shall be notified to pay the same within fourteen days, and if he does not pay, he shall be considered in arrears, and he is not entitled to lodge benefits. A member so in arrears shall be notified by the secretary in writing, to pay within thirty days, in default whereof the member shall be suspended.”
    It is further admitted that, for five years prior to November 23, 1884, Joseph Cohn, the plaintiff’s husband, was a member in good standing of said Germania Lodge, and as a member in good standing, was entitled to the benefits of said endowment, amounting, in case of his death, to the sum of §1,000, payable to his wife; that after the passage of the resolution of May 25, 1884, he was charged on the books of the lodge, under date of June 22, 1884, with the sum of §4.75, representing his dues for the preceding quarter accord
      Ing to said resolution, less fifty cents to adjust the account ; that under date of October 12, 1884, he was charged on said boobs $5.25 for his dues for the quarter ending September 30, 1884, and also twenty-five cents for a special assessment chargeable against each member of the lodge ; that on May 22, 1884, the secretary of said lodge mailed to said Cohn a notice of his indebtedness of $4.75 for the quarter then past, and on October 22, 1884, he also mailed to him a notice of the indebtedness of $10.25, for the preceding two quarters, and notified him that unless a payment should be made within the next thirty days, he would be suspended from membership in accordance with the law ; that on the 23d day of November, 1884, said lodge recorded in its minutos the following: “The secretary notified the lodge that brother Joseph Cohn has received a lawful suspension notice to pay up at the latest, to-day, and that the same was not paid to-day. The president, then in the lodge, declared brother Joseph Cohn legally suspended.” November 24, 1884, the secretary notified said Cohn of his suspension, and on the second day following, said Cohn came to said secretary and paid him $10.25, the full amount of his dues to the lodge, saying that he wished to be re-instated in the lodge; that he had forgotten to attend the meeting of the preceding Sunday to pay his dues. Cohn requested of the secretary a receipt for said money, which the secretary declined to give him, telling him that he would take the money and place it before the lodge at its next meeting, and state that he, Cohn, wished to be re-instated in the lodge. Said secretary implicitly believed that he would be re-instated, and for that reason neglected to report the suspension to the Grand Lodge as required by the rules of that body. Cohn at the time appeared to be in excellent health, but on the 2d day of December, 1884, and prior to the next meeting of the lodge,-he suddenly died of heart disease. The secretary thereupon reported to the Grand Lodge the facts in relation to the suspension of said Cohn, to his subsequent payment of his dues, and to his death, but the Grand Lodge refused to pay said endowment to the plaintiff, and has ever since refused to pay the same.

      It was further admitted that at the time of said suspension of said Cohn and thereafter said Germania Lodge was in good standing with said endowment fund. It-was agreed that the court below, upon consideration of said admitted facts, should render judgment thereon, with the right to either party to appeal, and that if judgment should be rendered for the plaintiff it should be for the sum of §1,001 and costs, and that such judgment should be rendered notwithstanding the failure of .the Germania Lodge to forward a certificate of death, as required by the rules of the Grand Lodge as above set forth.
    Mr. Julius Stern, for appellant;
    that a by-law of a voluntary association need not of necessity be reduced to writing or be printed, in order to be. binding upon the members of the association, cited Bank of Holly Springs v. Pinson, 58 Miss. 421; King v. Ashwell, 12 East, 22; Angell & Ames on Private Corporations, § 328, 329; Field on Private Corporations, § 305.
    As to the vital necessity of a strict compliance, by members of voluntary beneficial associations, with the rules for making payment to the common fund: Yoe v. Benj. C. Howard Mut. Ben. Asso., 63 Md. 86 ; Madeira v. Merchants’ Exchange Mut. Ben. Asso., 16 Federal Reporter, 749.
    Messrs. Moses, Newmak & Reed, for appellee.
   Bailey, J.

The defendant is a voluntary organization, having for one of it objects the accumulation and administration of a fund. for the benefit of the widows, orphans or devisees of the. deceased members of the various subordinate lodges subject to its jurisdiction. Said fund is composed of contributions from said subordinate lodges, in proportion to their respective membership, and in consideration of such contributions, the defendant undertakes to pay the sum of 81,000 to the widow, orphans or devisee of each person who, at the time of his death, was a member in good standing in one of said subordinate lodges.

For several years Joseph Cohn, the plaintiff’s husband, was a member in good standing, of Germania Lodge, one of said subordinate lodges, under an arrangement by which the §1,000 payable at his death should be paid to the plaintiff.' On the 2d day of December, 1884, said Cohn died, and the plaintiff’s light to recover of the defendant the sum payable at his death, depends wholly upon the question whether said Cohn, at the time of his death, was a member in good standing of Germania Lodge.

By a law of the Supreme Lodge of the order, which is binding upon all subordinate lodges and their members, it is declared that a member shall be considered in good standing if he shall have paid all charges, dues and fines against him, in the manner and at the time provided by the laws of his district and lodge, and if he shall not be under sentence of suspension. One of the by-laws of the Germania Lodge provides that a member who does not pay his quarterly dues, fines and other demands to the lodge at the maturity of the legal time, may be declared in arrears, and he shall lose his financial demands on the lodge, as well as his right to vote and spealc, and he recovers said rights only when he shall have paid his whole debt to the lodge.

For some time prior to his death, said Cohn had been delinquent in the payment of his dues to his lodge, so that on the 26th day of November, 1884, six days prior to his death, the books of the lodge showed an indebtedness for dues and assessments of §10.25. On that day he paid that sum in full to the secretary of the lodge, said secretary receiving the money> 1 romising to place it before the lodge at its next meeting and so far as appears, said money still remains in the possession of the lodge, or of the secretary, who was one of its principal officers. We are of opinion that said payment was effectual to relieve said Cohn of the charge of delinquency, and that he was in good standing at the time of his death, within the meaning of said by-laws, unless there was, as the defendant claims, a valid sentence of suspension then in existence against him.

The records of Germania Lodge show that certain proceedings were had at a meeting of the lodge held on the 23d day of November, 1884, in relation to Colin’s delinquency, which it is alleged amount to a legal suspension. The record, verbatim, is as follows: “ The secretary notifies the lodge that Brother Joseph Cohn has received a lawful suspension notice to pay up at the latest to-day, and that the same was not paid. The president then, in the lodge, declared Brother Joseph Cohn legally suspended.” It Jalso appears that on the 22d day of October, 1884, the secretary mailed to said Cohn a notice of his indebtedness, and that unless a payment should be made within the thirty days next ensuing, said Cohn would be suspended in accordance with the law.” This seems to be the notice referred to in the proceedings for said suspension.

Was this suspension valid? The constitution adopted by the defendant for the government of its subordinate lodges provided that, The manner "of suspension for the non-payment of dues and assessments shall be detailed in the by-laws of every lodge, and is left to their option.” It is clear that this provision, which is a part of the fundamental law of Germania Lodge, required the adoption of by-laws fixing and prescribing the manner of suspending members for the nonpayment of dues and assessments, before the power to pronounce a sentence of suspension could be exercised. The language of said constitution is imperative and mandatory, and while it leaves the lodges free to adopt such mode of procedure in the matter as they see fit, the mode adopted, whatever it may be, is imperatively required to be embodied in the by-’aws of the lodge.

It is admitted, however, that Germania Lodge has never adopted any by-law on the subject of suspensions as required by the foregoing provisions of its constitution. It had then no mode of procedure consistent with or authorized by its organic law for suspending persons from membership, and its attempted suspension of Cohn was therefore wholly without authority and void.

The case would have been different, if there had been no provision in either the constitution or by-laws of the lodge on the subject of suspension. It might then have been held, perhaps, that it was an incidental power, inherent in organizations of that character, to suspend or expel its members for any cause which it might deem sufficient, and to adopt such mode of procedure in the premises as it might see fit. The admitted facts in this case, however, show that, by the organization and laws of the order, the subordinate lodges bear such relation to the Grand Lodge, that the latter was empowered to prescribe a code of laws or constitution for the organization and government of the subordinate lodges, and that in the exercise of that power it had required such lodges to provide by their by-laws for the manner of suspension from membership, and limited the power of suspension to the mode which should be thus provided.

But it is urged that, as Germania Lodge, in the absence of a by-law, has been accustomed to pursue a particular course of procedure, such custom should be given the force of a by-law. To this view we are unable to assent. It may be that in the ease of ordinary corporations, by-laws need not necessarily be in writing, but may be adopted by long continued and invariable custom, but the authorities on that subject do not hold that a custom may take the place of a by-law, but that it may be resorted to as evidence of the adoption of a by-law. But in the present ease, aside from the admission that the lodge passed no by-law on the subject of suspensions, no custom or usage is shown which affords any evidence of the adoption of an unwritten by-law. It appears merely that the lodge, in the matter of suspensions, has been accustomed to act in a particular manner, but it does not appear when, how long, or to what extent such custom has been pursued, or whether it has been uniform or only adopted in particular instances. This comes far short of such custom as will be construed into a r> by-law.

But there is another reason why the custom insisted upon can not be regarded as a by-law. The lodge passed, promulgated and caused to be published, a code of by-laws for the government of its proceedings in a great variety of matters, and we have failed to find any decision holding, that where a corporation has expressly adopted a code of by-laws, other by-laws will be implied from custom or usage. Indeed, the adoption and promulgation of a code of by-laws in the ordinary way, by an express vote of the members of the corporation, would seem to exclude the possibility of constructing additional by-laws from the mere customs or modes of procedure which the corporation may see fit to adopt in the administration of its affairs.

But even if the custom contended for should be given the force of a by-law, it seems clear that it was not pursued in attempting the suspension of Cohn. The following is the custom as set out in the record:

“A member who does not pay his dues and assessments to the lodge within four weeks after the quarter, shall be notified to pay the same within fourteen days, and if he does not pay he shall be considered in arrears, and he is not entitled to lodge benefits. A member so in arrears shall be notified by the secretary, in writing, to pay within thirty days, in default whereof the member shall be suspended.”

The dues as to which Cohn was delinquent were for the two quarters ending respectively June 30th and September 80th. The dues for the first of these quarters were payaFe. at the last meeting, which was the fourth Sunday in June, and for the second quarter the fourth Sunday in September. The only notice sent to Cohn in relation to the dues for the quarter ending June 30th, as shown by the record, was mailed to him May 22d, which was long before said dues were payabA The on'y other notice shown to have been sent him in relation to the dues of either quarter, was mailed October 22d, that notice requiring the payment of the dues of both quarters. It is not shown, as to the dues of either quarter, that after Cohn had failed to make payment within four weeks after the quarter, he was notified to pay within fourteen days, and failing to make payment within that time, reached that stage in the proceedings where he could be “ considered in arrears,” and after becoming so “ in arrears,” he was again notified to pay within thirty days, and make default in payment during all that period. But by the custom contended for, each of these steps was clearly essential to a valid suspension. It was necessary to wait four weeks after the expiration of the quarter, and then if the dues were unpaid, to notify the delinquent to pay within fourteen days. If he still remained delinquent, he was to he considered in arrears, and when so in arrears, he was to be again notified to pay within thirty days thereafter, and it was only when the delinquency had extended to the termination of this latter period, that sentence of suspension could be pronounced. There is no pretense that the fourteen days notice was given, or that any steps were taken to put Cohn “in arrears,” the first and only notice given after the expiration of either quarter being the thirty days notice which the secretary denominates a “suspension notice.” There is, then, no possible view of the case in which it can be held that the suspension of Cohn was valid or authorized. It follows that it was illegal and void. Such being the case, Cohn, at the time of his death, was entitled to be regarded, and should in law be regarded, as in good standing in his lodge. The court below then decided correctly in giving judgment for the plaintiff. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Franz Mamero v. William Henschel.
    Chancery.—The court is of opinion that the evidence in this case supports complainant’s theory that the surrender of ail his property and means of support to his son-in-law, was upon the consideration that the latter would support him during his life, and was not a mere gift. The son-in-law refusing to perform his contract, equity has jurisdiction to rescind such contract.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed December 8, 1886.
    Mr. Arnold Tripp, for appellant;
    that equity will interfere in a case like this, cited 1 Story Eq. § 246; Underhill v. Harwood, 10 Vt. 209; Copes v. Middleton, 2 Mad. Rep. 556; Stillwell v. Williams, 1 Jac. 280; McArtee v. Engart, 13 Ill. 242; Brown v. Schuler, 41 Ill. 192; McCormick v. Miller, 102 Ill. 208.
    Mr. Thomas Shirley, for appellee.
   Bailey, J.

This was a bill in chancery, brought by Franz Mamero against William Henschel, to set aside the cancellation of a promissory note for $3,000, and the release of a trust deed securing the same, and for a foreclosure of said deed* of tl'ust. The case, as shown by. the pleadings and evidence on the part of the complainant, is, in substance, as follows :

In 1874, Mamero, being the owner of certain real property in Cook county, entered into an arrangement with Henschel, who was his son-in-law, for the conveyance of said property to Henschel, the latter to pay nothing for it, but to execute and deliver .to Mamero his two promissory notes, one for $1,000 and the other for $2,000, and to secure the same by two deeds of trust on said property, it being agreed that if Henschel wished to retain said property, he should pay said notes with interest, and if not, he was to deed the property back to Mamero. Mamero was to collect the rent, and in case of his death, Henschel was to have the property clear of incumbrance. Hnder this arrangement the property was deeded to Henschel, and he executed the notes and deeds of trust. The $1,000 note and deed of trust were afterward deposited by Mamero with one Miehoff as security for a loan, and some time in 1877, when Mamero paid off said loan, said deed of trust was for some reason released. In September, 1881, the $2,000 deed of trust was also released, and a new note for $3,000, and a deed of trust securing the same, were executed by Henschel to Mamero, on substantially the same agreement as before. After the conveyance Mamero collected the rents, and managed the property in all respects as if it were his own, and continued to do°so until about June, 1883. Mamero was a man over seventy years of age and somewhat infirm, and in consequence of an improvident contract made by him at about the date last mentioned for certain changes and improvements in the building on said premises, Henschel suggested that he had better have the management of the property in his own hands and collect the rents, promising to give the same to Harnero for his support during his life, and if the rents should not he sufficient for that purpose, to apply as much of the property as should be necessary for Mamero’s support during life, Henschel to retain as his own whatever should remain after Mamero’s death.

This proposition was acceded to by Mamero, and to effectuate the arrangement, Mamero surrendered to Henschel the note and deed of trust for $3,000, and the note was canceled and the deed of trust released of record. Ho money was paid by Henschel as the consideration for the surrender and cancellation of the note and deed of trust, the only consideration being Henschel’s promise to furnish Mamero his support during his life. The note and deed of trust, at the time of their surrender to Henschel, constituted all the property and means of support that Mamero had. Mamero was then and for some time had been, living with Henschel. After Henschel had obtained the cancellation of said securities in manner aforesaid, he refused to carry out the agreement to support Mamero,- denying his liability so to do, appropriated said rents to his own use, and claimed said property as his own, free from any claim on the part of Mamero, and threatened to sell the same.and remove permanently to Europe.

All of the equities of the bill are denied by the answer, and in many respects the evidence given on behalf of the defendant tends to disprove the facts above stated, but on considering all the evidence, we-are of the opinion that it preponderates strongly in favor of the complainant, and that it sustains the complainant’s case as above stated in all its essential features.

The court, at the hearing, dismissed the bill for want of equity at the costs of the complainant, who brings the record to this court by appeal. *

We are of the.opinion that the prayer of the bill should have been granted, and a decree rendered setting aside the cancellation of the note and the release of the deed of trust’ and for a foreclosure. The earliest reported case in this State involving principles analogous to the present one, is Frazier v. Miller, 16 Ill. 48. There the complainant conveyed all his real and personal property to the defendant, upon condition that the defendant would support and take care of the complainant and his wife during their lives, the defendant giving a bond to that effect, but subsequently obtaining possession of said bond and withholding it from the complainant. The defendant did not perform his contract, but maltreated the complainant and his wife, and it was held that the complainant might proceed by bill in equity to have the conveyance rescinded. It was urged then, as it is here, that the complainant’s remedy was at law upon the contract, for support, but it was held, for reasons which are manifestly unanswerable, that under the peculiar circumstances surrounding cases of this character, the remedy at law is inadequate, and that a court of equity can give a more specific and effectual remedy by restoring the property. It was admitted that the case was new, and almost a matter of first impression, but the rule is applied, that where new cases arise out of the ordinary beaten track of equity, the courts do not hesitate to give the proper specific relief because there is no precedent. It was accordingly held that, under the circumstances, a decree rescinding the contract might be based upon the inference of an abandonment of the contract by the defendant, and also a presumption of a fraudulent intent in entering into it.

The case of Oard v. Oard, 59 Ill. 46 was like the foregoing in all its essential features, and the court, in holding that a bill might be maintained to rescind the contract, say : “ Cases of this sort are rare in our books, as, fortunately for our common humanity, they are rare in actual life. But, as was said by this court in Frazier v. Miller, .when they do occur they appeal so strongly to the conscience of the court for relief, that if the rescission of the contract can not be referred to any other head of equity jurisdiction, it would be proper to presume that it was made in the first instance with a fraudulent intent.”

A somewhat analogous principle was applied in Rockafellow v. Newcomb, 57 Ill. 186. There the complainant conveyed land to the defendant in consideration of a marriage contract, but after the conveyance the defendant refused to perform the contract. It was held that the refusal to marry destroyed the consideration, and that equity would rescind the contract on that ground. See also James v. Neely, 72 Ill. 449.

In the present case the complainant was the owner of a promissory note for $3,000, secured by a deed of trust, which constituted the sum total of his property and means of support. This he surrendered to the defendant, and if the consideration of such surrender was not a contract for support for the residue of his life, it was a mere gratuity. The defendant does not claim that he paid anything for the securities, but alleges that they were a gift. The version of the transaction given by the complainant is far the most reasonable, and is supported, in our judgment, by a large preponderance of the evidence. The defendant is not only shown to have refused to perform the contract which was the only consideration upon which he obtained the note and deed of trust, but by his answer and evidence he now repudiates all obligation to do so. The complainant in his old age is thus turned adrift helpless and penniless, and it would be a reproach to the administration of justice, if a court of equity, which claims to be the guardian and protector of the weak and helpless, and the punisher of fraud and imposition, could find no mode of administering adequate and effective relief.

The decree will be reversed and the cause remanded with directions to the court below to enter a decree setting aside the cancellation of the said note and vacating the release of the deed of trust, and for a foreclosure of the deed of trust and a sale of the mortgaged premises for the amount appearing to be due on said note.

Decree reversed.


author: Moran, J.

text:
    Charles W. Pardridge et al. v. Joel J. Bailey & Co.
    1. Agency—Implied authority to receive payment.—Where an agent is authorized to sell and is intrusted with the goods, he has an implied authority to receive payment.
    2. Ratification.—If the principal, whose goods have been sold without his authority, sues the purchaser for the debt due therefor, he ratifies the sale.
    3. Evidence of usage,—The usages of a particular trade may extend the scope of an agent’s authority, when dealing with a person who has no knowledge of special or particular instructions. It was therefore error to exclude the evidence offered in this case, as to the universal usage and course of business for dealers in the line of goods in question, to pay traveling men for samples sold and delivered by them, instead of paying the principal.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthoky, Judge, presiding.
    Opinion filed December 8, 1886.
    This was an action of assumpsit by appellees against appellants to recover for a bill of goods sold to appellants by one Holmes, who was a traveling salesman in the employ of appellants. Holmes had in his possession the usual lines of samples of appellees’ stock, and the course of business was for Holmes to take orders for goods and send them in, and appellees filed them or not as they saw fit. He had no authority to collect for the firm. About August 1, 1883, appellees received from Holmes a statement of a sale of certain sample goods. They entered the sale upon their books and rendered to appellants a bill dated August 7, 1883; appellants returned the bill by mail with the statement upon it, “ We gave your agent a check for this amount and hold receipt for same. Yours, etc., C. W. & E. Pardridge, Boston Store.”

      Appellants are retail merchants in Chicago, and carry on their business in three separate stores, under two distinct managements. One, known as the Boston Store, is under the management of one Charles Hetcher, who had entire control of the purchases and sales therein, but had no part whatever in the management of the other stores and has no information respecting sales or purchases therein.
    Holmes had, on two occasions prior to the sale of the bill of goods in question, sold small bills of goods to Hetcher at the Boston Store, and delivered the goods and received the pay for them in cash, Hetcher supposing that the goods belonged to Holmes. Early in August, Holmes came to Hetcher, and told him that he was sent out by his house to take up one of the travelers who got on a spree, and he had taken the samples away from him and brought them to Chicago to sell. Holmes did not tell what house he was acting for, but when Hetcher went to the Palmer House where the samples were, to look at them, he saw the name of Joel J. Bailey & Co., on them. Hetcher offered to take the goods at fifty off, and the next day Holmes came to Hetcher and said that the house would not take the offer of fifty off, hut would sell at forty off, and Hetcher agreed to take the goods at that price. Two days afterward Holmes brought the samples in trunks and left them to be checked off with the bill and said he would come in a day or two to get the money. The hill was found to "check all right, and when Holmes came in at the end of two days Hetcher made out a statement and ordered a check to be made out, as Holmes requested it to be, to Joel J. Bailey & Co., or bearer. The check was delivered to Holmes and he drew the money upon it. Holmes had in fact no authority from appellees to sell the samples, and they knew nothing about the matter till the sale was reported to them.
    On the trial appellants offered to prove that it was usual and customary among wholesale and retail dealers throughout the Hnited States, that when a traveling salesman is authorized to sell his samples for the retail dealer, upon the delivery of the samples, to pay the traveling salesman instead of the principal, and that the custom was known to plaintiffs, but the court would not permit the questions to be put tending to establish that such was the usual and ordinary course of dealing.
    There was a verdict for appellees for the price at which the goods were sold by Holmes, and judgment on the verdict, and the ease comes to this court by appeal.
    Messrs. Swett, Grossoup & Swett, for appellants;
    cited Howe Machine Co. v. Ballweg, 89 Ill. 318; Harris v. Simmerman, 81 Ill. 413 ; Putnam v. French, 53 Vt. 402; 2 Benjamin on Sales, § 1095 ; Hoskins v. Johnson, 5 Sneed, 569; Rice v. Graffman, 56 Mo. 434; Butler v. Dorman, 68 Mo. 298 ; Seiple v. Irwin, 30 Penn. 515.
    As to evidence of usage: Story on Agency, §§ 429, 443 ; Phillips v. Moir, 69 Ill. 163; Lyon v. Culbertson, 83 Ill. 33 Noble v. Nugent, 89 Ill. 552.
    Suing in assumpsit was a ratification of the agent’s act: Story on Agency, § 259; 1 Parsons on Contracts, 51; Morris v Tillson, 81 Ill. 607 ; Toledo R. R. Co. v. Elliott, 76 Ill. 67; Cochran v. Chitwood, 59 Ill. 83.
   Moran, J.

The agent of appellees had possession of the samples, and represented that he had authority to sell them. Appellants had no knowledge as to the authority of the agent, except from his representations that he had authority to sell at a certain price, and they purchased the goods at the price, and the agent delivered the goods to them, and they, in good faith and at his request, paid him for them. Where an agent is authorized to sell and is intrusted with the goods, he has an implied authority to receive payment. Story on Agency, Sec. 102; Capel v. Thornton, 3 Carr. & Payne, 352 ; Rice v. Graffman, 56 Mo. 434; Hoskins v. Johnson, 5 Sneed, 470; Putnam v. French, 53 Vt. 404.

The agent in this case had no authority to sell, but by abandoning the suit in trover commenced by them, and suing on the contract for the price at which the goods were sold, appellees have ratified the authority which the agent assumed to have when he made the sale.

" If the principal, whose goods have been sold without his authority, should sue the purchasers for the debt due therefor, that would amount to a ratification of the sale, for the suit would not upon any other ground be maintained in that form.” Story on Agency, Sec. 259 ; Cochran v. Chitwood, 59 Ill. 53.

A subsequent ratification is as good as a prior authority, and the consequence of bringing suit upon the contract must be to ratify the sale ah initio. The case stands thus then. The plaintiffs say : Our agent had the possession of our goods and had authority to sell and deliver to you at the price which you purchased them at, but he had no authority to receive the pay for them, and you, having paid him for them, must now pay us the contract price over again.” The defendants say: “We dealt with your agent, who had the goods and delivered them to us, and who, you now say (by bringing this suit), had authority to sell them to us; and we, having no notice that you forbade your agent to receive the price, supposed in good faith, from his having the goods and the right to sell them, that he was authorized to receive the price, and we in good faith paid it him, and we ought not to be compelled to pay again.”

The law is with the defendant. Had appellees maintained their suit in trover, thus repudiating a sale, the question to be determined would be different. The court below instructed the jury so as to ignore the rule that the agent’s authority to receive the pay would be implied from his possession of the goods and authority to sell them, and required the appellants to prove, in order to maintain their defense, that the agent had express authority to receive payment. This was error. It was also error to exclude the evidence offered by appellants to prove the universal usage and course of business for dealers in that line of goods, to pay traveling men for samples sold and delivered by them instead of paying the principal. The usages of a particular trade' may extend the scope of an agent’s authority when dealing with a person who has no knowledge of special or particular instructions. The rights of principals against third persons, arising from the acts and contracts of their agents, may be further illustrated by the consideration of payments made to or by the latter; and first, in relation to payments made to agents, such payments are good and obligatory upon the principal in all cases where the agent is authorized to receive payment, either by express authority or by that resulting from the usage of trade, or from the particular dealings between the parties.” Story on Agency, 429.

In all cases where such usages exist and an agency is to be exercised touching such matters, the natural presumption in the absence of all controverting proof is, that the agency is to be conducted in the manner and according to the practices which are allowed and justified by such usages. U. S. Life Co. v. Advance Co., 80 Ill. 549 ; Noble v. Nugent et ah, 89 Ill. 522 ; Putnam v. French, 53 Vt. 402.

The evidence offered tended to prove the usage claimed to exist, and whether in fact it would establish the existence of it was a question for the jury. For the errors indicated, the judgment will be reversed and the case remanded.

Reversed and remanded.


text:
    Charles E. Duer v. Charles A. Morrill.
    1. Agreement to stay execution.—An agreement to stay execution is not an agreement to give time for the payment of a judgment.
    2. Surety’s liability.—An agreement which will discharge a surety must operate upon the instrument he signs. A contract with the principal which only affects some collateral right which the plaintiff may have, if it does not postpone that on the original undertaking, is immaterial.
    3. Surety’s undertaking—Agreement to stay execution eor a given time.—A and B, to prevent the levy of an attachment against C, undertook and promised to the effect “ that if the said plaintiff (D), shall recover judgment in said action (against C,) we will pay to the said plaintiff, upon demand, the amount of said judgment, together with costs.” Held, that the taking of the judgment and th6 demand on A or B to pay it, fixed his liability, and whether the plaintiff in the suit neglected to issue execution upon the judgment or so agreed that he would be prevented from enforcing payment of it by execution for a given time, could in no manner affect the rights of A or B.

      Error to the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed December 8, 1886.
    This was an action of debt brought by defendant in error upon an undertaking given to prevent the levy of an attachment in an attachment suit brought in the District Court of Montana, in and for the county of Choteau, by said defendant in error, against one W. H. Burgess, to recover on a promissory note of said Burgess, given by him to defendant in error, for merchandise. The undertaking was in the words following:
    Charles A. Morrill, doing business under the name and style of C. A. Morrill & Co., plaintiff, v.
    Undertaking on release of attachment.
    William H. Burgess, defendant.
    Whereas, the plaintiff in the above entitled cause has commenced an action in the said court against the said defendant for the recovery of $1,843.39, and whereas, an attachment has been issued, directed to the sheriff of Choteau county, and placed in his hands for execution, whereby lie was commanded to attach and safely keep all the property of the said defendant within this county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demands, therein stated, in conformity with the complaint, at $1,843.39, unless the defendant give him security by an undertaking of at least two sureties, in an amount sufficient to satisfy said demand, besides costs, in which case to take such undertaking.
    And whereas, the said defendant is desirous of giving the undertaking mentioned in said writ, now, therefore, we, the undersigned residents of the county of Choteau, and territory of Montana, in consideration of the promises, and to prevent the levy of said attachment, do hereby jointly and severally undertake in the sum of $3,700, and promise to the effect that if the said plaintiff shall recover judgment in said action, we •will pay to the said plaintiff upon demand the amount of the said judgment together with costs.

      Witness our hands and seals this 8th day of January, 1884. Signed:
    W. H. Burgess, Charles E. Buer. W. J. Mirar.
    Affidavit attached sworn to by Charles E. Duer and W. J. Minar, before Henry G. Mclntire, notary public.
    Notarial certificate dated January 9, 1884.
    After the giving of said undertaking, a motion was made by the attorneys for Burgess to strike out the complaint, but the motion was overruled and Burgess given one day to say whether he had a defense.
    Some negotiations were had by the attorneys for the defendant, Burgess, seeking to gain further time to answer, but that being refused by the attorney for the plaintiff, some five days after, the plaintiff, who was, by the practice of the Montana court, entitled to a default, an agreement was made by the attorneys of the respective parties in open court, that the defendant, Burgess, should confess judgment in favor of the plaintiff, Morrill, for §1,900.40, and execution on said judgment should be stayed for ninety days. The judgment was accordingly entered by the court, and a stay of execution ordered. After the expiration of the ninety days, the amount of said judgment was demanded of Minar and Duer, and upon their refusal to pay, suit was commenced upon the undertaking in Montana, which suit was afterward dismissed without prejudice aifd the present action commenced.
    To the declaration filed in the superior court, several pleas were filed, setting up as a defense for the appellant, that he was a surety upon the undertaking sued on; that the judgment in the Montana court was by confession, and was in pursuance of an agreement between Morrill and Burgess, and that it was a part of the agreement that a stay of execution should be granted, which stay effected an extension of time to Burgess to pay the judgment, and such agreement was without the knowledge, privity or consent of Duer, and that during the period of the stay, Burgess had goods and chattels out of which the debt could have been made.

      It appeared in evidence that the note on which judgment in the Montana court was obtained, wras sent to the attorney there, with instructions to secure the same or enforce collection by suit, and that he had no further authority or instructions in that regard, and that the l la'ntiff in the suit was not present in court when the agreement to confess judgment and for a stay of execution was made, and had no knowledge of any such agreement. The case was submitted to the court without a jury and there was a finding and judgment against the defendant in debt, and damages assessed at $2,158.08, and the case is brought to this court by writ of error.
    Messrs. Paddock & Aldis, for plaintiff in error.
    Mr. Emery S. Walker and Messrs. Cratty Bros. & Aldrich, for defendant in error;
    that the extension must pertain to the contract sued upon and not merely to some other matter, cited U. S. v. Hodge, 6 Howard, 279.
   Moran, J.

The liability of the plaintiff in error arises on the terms of the undertaking, by which, to prevent the levy of the attachment, he undertook and promised to the effect “ that if the said plaintiff shall recover judgment, in said action, we will pay to the said plaintiff, upon demand, the amount of the said judgment together with costs.”

The import of this undertaking is not that the defendant in the attachment suit should pay the judgment, but is a positive agreement that the signers of the undertaking would pay the amount of the judgment on demand. The taking of the judgment and the demand on them to pay it fixed their liability, and whether the plaintiff in the suit neglected to issue execution upon the judgment, or so agreed that he would be prevented from enforcing payment of it by execution for a given time, could in no manner affect the rights of the plaint, iff in error. Upon the rendition of the judgment the signers of the undertaking might undoubtedly pay the same, and those who signed as sureties could take such steps as they saw fit against the judgment debtor without regard to any stipulation to stay execution. Palmer v. Vance, 13 Cal. 553; Drake v. Smith, 44 Iowa, 410.

Further, an agreement to stay execution is not an agreement to give time for the payment of a judgment. The judgment is payable when entered, and may be discharged at once. Execution is but a method of enforcing payment by levy and sale of the defendant’s property. The order staying execution did not disable the plaintiff from demanding payment from the undertakers at once, and bringing immediate suit on the instrument on which plaintiff in error was surety. 31 Miss. 99.

An agreement which will discharge a surety must operate upon the instrument he signs. A contract with the principal, which only affects some collateral right which the plaintiff may have, if it does not postpone that on the original obligation, is immaterial. U. S. v. Hodge, 6 How. 279.

The questions as to whether the attorney had authority to make the stipulation granting stay of execution, and whether there was, under the circumstances, any consideration which would support such an agreement, we deem it unnecessary to decide. The judgment of the superior court will be affirmed.

Judgment affirmed.


author: McAllister, P. J.

text:
    Julius Lipman v. William Link et al.
    1. Attachment creditor garnishing citizens of another state— Assignment.—A delivered to B a voluntary deed of assignment, made under and in conformity with the laws of New York, where it was executed. B, the assignee, accepted the trust and took possession of all the property, effects and estate of A. The day after the assignment, 0 sued out a writ of attachment against A in Chicago, and garnished D and others who were residents and citizens of Illinois, and who were indebted to Ain divers sums of money on open accounts. A, B and C were residents and citizens of New York,, where they did business. The assignee came in by way of interpleader,, setting up the facts in the case and claiming the funds as such assignee - There was no creditor of the attachment debtor,, who was a citizen or resident of Illinois, to question the operation of the assignment upon the funds aforesaid, in the hands of the garnishees. Held, that said assignment was operative as against the attachment creditor prosecuting his remedy in this State.
    2. Assignment Off another state preferring certain creditors.— It is not against the public policy of this State to recognize such assignment^ although it provides for preferences as permitted under the Mew York law. At common law a debtor in failing circumstances had the right to prefer one creditor over another, and the provision in our statute against preferring creditors has no relevancy to any assignment made out of this State.
    Appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed December 8, 1886.
    Mr. E. A. Otis, for appellant;
    as to the situs of a debt, cited Wharton on Conflict of Laws, 359; Kirkland v. Hotchkiss, 100 U. S. 419; Speed v. May, 17 Penn. 91; Caskie v. Webster, 2 Wall. 131; Guillander v. Howell, 35 N. Y. 657; Atwood v. Protection Ins. Co., 14 Conn. 555.
    As to the distinction between a voluntary and an involuntary assignment: Story on the Conflict of Laws, § 411; Rhawn v. Pearce, 110 Ill. 350; B. & O. R. R. Co. v. Glenn, 28 Md. 287.
    A voluntary assignment of choses in action, valid by the laws of the State where it is made, will be sustained as against the claims of an attaching creditor .residing in the same State as the assignor: Burrillon Assignments, § 310; Meyer v. Alexander, 108 Ill. 385; Chaffee v. Fourth Nat. Bk., 71 Me. 514; Story on the Conflict of Laws, § 512; Bentley v. Whittemore, 19 N. J. 462; Ockerman v. Cross, 54 N. Y. 29 ; Green v. Van Buskirk, 7 Wall. 139; Thurston v. Rosenfield, 42 Mo.; Train v. Kendall, 137 Mass. 366.
    Messrs. McClellan & Cummins, for appellees ;
    that courts refuse to give effect to contracts which contravene the laws or policy of their own State, cited Wharton on Conflict of Laws, § 490 ; Story on Conflict of Laws, § 327; Forbes v. Cochrane, ;2 B. & C. 448-471; Smith v. Godfrey, 8 Foster (N. H.), 382; Meservey v. Gray, 55 Me. 540; Milnor v. N. Y. R. R. Co., 53 N. Y. 367; Harrison v. Sterry, 5 Cranch, 298; Pardo v. Bingham, 6 Eq. 485.

      A foreign assignment is of no force or effect in this State except by comity. It is the settled policy of this State that comity will not be exercised to defeat the rights and remedies of attaching creditors who are citizens of this State. The rights of citizens of any other State bringing suit by attachment in this State, must be governed by the same rule in compliance with the first clause of section 2, article 4 of the federal constitution : Meyer v. Alexander, 108 Ill. 394; Rhawn v. Pearce, 110 Ill. 350; Hibernia Nat. Bk. v. Lacomb, 84 N. Y. 367; Payne v. Lester, 44 Conn. 196 ; Kidder v. Tufts, 48 N. H. 121; Green v. Van Buskirk, 7 Wall. 139 ; Warner v. Jaffray, 96 N. Y. 258 ; Ward v. Maryland, 12 Wall. 430 ; Slaughter House Cases, 16 Wall. 75; Corfield v. Coryell, 4 Washington C. C. R.; Paul v. Virginia, 8 Wall. 180; Ducat v. City of Chicago, 48 Ill. 178.
   McAllister, P. J.

The material facts well pleaded in the interplea of appellant to which the court below sustained a demurrer, are, that the respective persons summoned as garnishees were citizens of this State doing business in the city of Chicago ; that they had purchased goods of, and be • come indebted to, the firm of Kossuth, Marx & Co., who were citizens and residents of the State of New York, in divers sums of money, upon open accounts; that said firm of Kossuth, Marx & Co. had become indebted to the firm of Link & Conkling, also citizens and residents of said State of New York, and to other creditors, in divers large sums of money, which they were unable to pay; that September 4 1885, they, said Kossuth, Marx & Co., in said State, and in all respects in pursuance of the laws thereof, made and delivered to appellant Lipman, also a citizen and resident of said State, a voluntary deed of assignment whereby they conveyed and transferred to said Lipman all the property, effects and estate of them, the said Kossuth, Marx & Co., including their said claims against said garnishees in trust, for the benefit of their creditors, but to some of whom preferences were given; that said assignee then and there duly accepted the said trusts under said deed, and that thereupon the same became valid and operative by the laws of New York, in accordance with whose laws it was made.

It appears that on the next day, September 5, 1885, said firm of Link & Conkling caused a writ of attachment against said Kossuth, Marx & Co., to be sued out of the court below, and there being no property of defendants capable of seizure found by the sheriff, said several persons first above mentioned were served as garnishees; that said assignee, Lipman, came in by way of interpleader, setting up the above matters and notice to the respective garnishees of said assignment, and claimed the funds in the hands of said garnishees, as belonging to him by virtue of said assignment. To that pleading the court below sustained the general demurrer of said attaching creditors and gave judgment in their favor, from which the assignee, Lipman, took this appeal.

By that ruling the court below held, in effect, that although the assignment was a voluntary one; was made under and in conformity with the laws of the State of New York where it was executed; that although the funds in the hands of the several garnishees were due upon open accounts t,0 the defendants in the attachment, and payable to them in the State of New York, of which State they were citizens and residents, as well also the said plaintiffs in the attachment and assignee; and although there was no creditor of said attachment debtors who was a citizen or resident of the State of Illinois to question the operation of said assignment upon the funds aforesaid, in the hands of the garnishees ; that yet, notwithstanding the facts stated, said assignment was not operative as against said attachment creditors prosecuting their remedy in this State.

The question is whether, upon the precise facts stated, the decision below is sustainable.

It is a general rule that contracts valid by the laws of the State or country where they were made and to be performed, are valid everywhere. This rule springs from and is based upon principles of enlightened jurisprudence among civilized nations, and not from any constitutional provisions. It is likewise a general rule, that although the courts of a country may be open alike to all suitors, whether citizens, subjects or aliens, yet such courts will not afford a remedy upon a foreign con. tract, even if valid by the laws of the country where made, if to enforce it would be against the positive law or public policy of the country of the former. This is because the privilege of coming into such courts exists by comity, and is subject to conditions imposed by the country extending it. Our federal constitution contains the declaration: “ That the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”

That provision confers upon citizens of one State the right to go into the courts of another State, the same as the citizens of the latter are entitled to. But, while it may modify the doctrine of comity between the States in many particulars, yet it has never been regarded as abrogating it altogether.

In Heyer et al. v. Alexander et al., 108 Ill. 385, there was a voluntary assignment made in the State of Missouri by an assignor to an assignee, both being citizens and residents of that State, covering real property situate in the State of Illinois ; but the assignment was in trust for the benefit of the creditors of the assignor. In attachment proceedings brought in the Circuit Court of East St. Louis, by a creditor of the assignor and citizen and resident of this State, the assignee came in as interpleader, claiming the property by virtue of the assignment which was valid by the laws of the State of Missouri. The Supreme Court said : “ The question is, will our laws permit that trust to be unconditionally enforced as against his creditors resident in this State ? This conveyance is only valid by the comity between the States, and the same comity in some cases imposes terms upon the conveyance for the protection of the inhabitants of the State where the property to be affected is situated. In some of the States it has been held that a deed of assignment by a non-resident debtor to a trustee for payment of debts, will not be enforced against creditors in the State where the land is situated;” citing Chaffee v. Fourth National Bank, 71 Maine, 514, in which one point decided by the Supreme Court of Maine, was that “ Comity between the States is not thus to be extended, to the prejudice of our citizens.”

The case of Heyer v. Alexander, supra, was decided against the assignee interpleading, solely on the ground that the plaintiff in the attachment was a citizen and resident of this State—a domestic creditor of the assignor, and that the former may have given credit to the latter, on account of the very property in question situated in this State.

The case in hand is entirely wanting in any such element or feature.

The case of Rhawn et al. v. Pearce et al. 110 Ill. 350, is also unlike this case and has no application as an authority. There Hixe assignment Avas ininvitum under the insolvent Uavs of Pennsylvania. Here, it was by a voluntary deed. The distinction between the íavo classes of cases is marked and emphasized in the opinion of Mr. Justice Craig, in that case, and is well settled by the authorities.

In Burrill on Assignments, § 303, the learned author says: It may be primarily observed that there is a clear and well defined distinction, supported by the weight of American authority, between involuntary transfers of property, such as work by operation of law under foreign bankrupt assignments and insolvent laws, and a voluntary conveyance.” The case of Rhawn v. Pearce, supra, involved an involuntary assignment ; the case at bar a voluntary transfer. In the former ease the supposed transfer in Pennsylvania being involuntary, so far as the debtor was concerned, and effected by operation of the statutes of that State, it was regarded here as if it had never taken place. Hence the case involved, in reality, only the question whether, the debtor and creditors both being citizens and residents of Pennsylvania, the latter had the right to come into our courts and reach by garnishee process a debt due from one of our citizens to the said debtor. Ho advance beyond established land-marks of the law was needed, and none was attempted by the able and discriminating judge Avho prepared the opinion of the court in that case.

Under the privilege and immunity clause of the constitution above quoted, Lipman, the assignee in New York, was entitled to come into the cause by Avay of interplea, the same as any citizen of this State would be, and if there exists here no rule of positive law or of public policy which forbids, and there is no creditor of the assignors who are citizens or residents of this State to be prejudiced by the enforcement of the trusts of the assignment, then the assignment should be recognized as operative against the attaching creditors. On the other hand, said attaching creditors, although citizens and residents of the State of New York, had, under the same constitutional provision, the right to resort to our courts, and sue out a writ of attachment, the same as any of our citizens might. But to say that doing so made them citizens, residents or domestic creditors here, within the doctrine of the case of Heyer v. Alexander, supra, would be an unbecoming resort to pure fiction, as a substitute for indispensable facts.

Thus far, we are unable to perceive any reason that has a tendency to support the ruling of the court below. But it is contended by counsel for appellees, that because said assignment in New York provided for preferences, its recognition here would be against the public policy of the State.

It was the settled law in this State, that at common law a debtor in failing circumstances had the right to prefer one creditor over another, where he did so in good faith. Howell v. Edgar, 3 Scam. 417; Cooper v. McClun, 16 Ill. 435.

In 1877 an act was passed entitled, An act concerning voluntary assignments, etc., of which section 13 is as foil ows: “ Every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.”

We are aware of no other statutory provision relating to the subject; and that just quoted has no relevancy to any assignments made out of this State, because it is in terms limited to such as are made in this State.

The right of a failing debtor to create, in good faith, preferences as to his creditors, being one arising at common law, it will require something beyond the provision above quoted, to afford a proper basis for the supposed rule of public policy. And we agree with the court of errors in New Jersey, in Bentley v. Whittemore, 19 N. J. Eq. 462, that in order to support the contention of appellees here, it is necessary that the statute of this State should prohibit preferences between non-resident creditors under an assignment legal by laws of the debtor’s domicile. Burrill on Assignments, § 310, and authorities cited.

Upon the whole case, we are of opinion that the ruling below is not sustainable; that the judgment should be reversed and the cause remanded, with directions to that court to overrule said demurrer to appellant’s interplea.

Judgment reversed.


text:
    Henry T. Steele v. Grand Trunk Junction Ry. Co.
    1. Plea ln abatement—Pending- op suit.—In an action of forcible detainer brought to recover possession of certain premises, an action pending founded upon a supposed forfeiture of the lease of the premises before the expiration of the term by reason of an alleged failure to pay rent pursuant to a notice to do so, under the statute (which suit afterward turned out not to be maintainable, because the proper statutory notice had not been given) was pleaded in abatement. Held, that the pending of such suit was not sufficient to sustain the plea in abatement. They were not the same identical causes of action.
    2. Judgment upon plea in abatement.—In ordinary actions at law in courts of record, the judgment on the finding of the issues for the plaintiff upon a plea in abatement, is interlocutory or final according to the nature of the action. If the action be for damages in assumpsit or tort it is interlocutory. But if it be in debt for a sum certain or for a specific recovery of land or goods, it is final. Such rule applies to the statutory action of forcible entry and detainer.
    Error to the Circuit Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed December 8, 1886.
    Mr. H. F. Vallette, for plaintiff in error;
    that the plea in abatement ought to have been sustained by the court, cited Buckles v. Harlan, 54 Ill. 361; 1 Chitty on Pleading, 488 ; Com. v. Churchill, 5 Mass. 174; Bancroft v. Eastman, 2 Gilm. 259 ; McConnell v. Stettinius, 2 Gilm. 712.
    That it was indispensable to the rendition of the judgment given that the court should require further evidence as to the merits of the case: 1 Chitty on Pleading, 498, 499 ; McCartee v. Chambers, 6 Wend. 649.
    Mr. F. H. Culver, for defendant in error;
    that the pending action could not be pleaded in abatement to. this suit, cited Blackwood v. Brown, 34 Mich. 4; Smalley v. Edey, 19 Ill. 211; Vansant v. Alimon, 23 Ill. 30; Thielman v. Carr, 75 Ill. 385 ; Kessinger v. Whittaker, 82 Ill. 22; Merrin v. Lewis, 90 Ill. 505.
    Upon a decision on a plea in abatement being decided in favor of the plaintiff, the judgment is final that he do recover : Stephens on Pleadings, 104; Gould’s Pleading, 277, 278 ; Green’s Practice, (Mich.) 284 ; Puterbaugh’s Practice, 149 ; Chitty on Pleading, 483 ; 2 Greenleaf on Evidence, § 27; Chase v. Deming, 42 N. H. 274; Meyer v. Erion, 20 Ohio, 382; Young v. Gilies, 113 Mass. 34.
   McAllister, P. J.

This was an action of forcible detainer, brought in justice’s court, May 14, 1884, by the Grand Trunk Junction Pailway Company, against Steele, to recover the possession of certain premises definitely described in the complaint, for the cause that said premises had been let by one Howe to Steele, for the term of one year, at a specified rental; that Howe had conveyed the ¡iremises to the plaintiff below ; that said lease had expired by lapse of time, and defendant below held possession of said premises, after such termination of said lease, without right. Steele filed a plea in abatement in justice’s court, setting up the pendency of a former suit between the same parties, alleged to be for the same identical cause of action. On appeal from the justice’s judgment to the superior court, said plea in abatement was orally traversed, and the cause submitted to the court for trial without jury. The court, upon the evidence, found the issues upon the plea in abatement for the plaintiff below, and, without requiring or receiving any further evidence on behalf of plaintiff, but against the objection of the defendant, rendered final judgment against him, and he brings error to this court.

The action pending, set up as matter of abatement in the plea, was shown to have been for a cause of action founded upon a supposed forfeiture of said lease before the expiration of the term, by reason of an alleged failure to pay rent pursuant to a notice to do so, under the statute. The cause of action in that case was not the same identical cause of action as that of this present case; and besides it was not maintainable, because the proper statutory notice had not been given, as afterward turned out, when that case came to be tried. The pending of that suit was not, therefore, sufficient to sustain the plea in abatement, and the court below properly so held.

The remaining question is whether, upon the court finding for the plaintiff below, it was indispensable to the rendition of the judgment given that the court should require further evidence as to the merits of the case or otherwise. There was no question of damages involved. The action was for the recovery of the possession of land specifically described in the complaint.

It is well settled that in ordinary actions at law, in courts of record, the judgment on the finding of the issues for the plaintiff, upon a plea in abatement, is interlocutory or final according to the nature of the action. If the action be for damages in assumpsit or in tort, it is interlocutory. But if it be in debt for a sum certain, or for a specific recovery of land or goods, it is final. 2 Tidd’s Pr. 740 ; Glould’s Pleading, 4th Ed. Ch. 5, § 159, and authorities in note.

Such being the rule in actions at common law, will it apply to this statutory action? § 11 of the act entitled Forcible Entry and Detainer, reads: “ Trials under this act in courts

of record shall be the same as in other cases at law: Provided, no special pleading shall be required; but the defendant may, under the plea of not guilty,” give in evidence any matter of defense to the action.” 1 Starr & C. St. 1182.

We thinkthe judgment should be affirmed.

Affirmed.


text:
    Michael’s Bay Lumber Co. v. John Jenks.
    1. Services rendered—Recovery under indebitatus count.— With respect to debts for work and labor or other personal services, and for materials used in performing the work, it is the rule that if preceded by the defendant's request, then, however special the agreement was, yet if it were not under seal, and the terms of it have heen performed on the plaintiff’s part, and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient.
    2. Same.—Under an indebitatus count in assumpsit or debt the plaintiff may recover, although there be no evidence of a fixed price.
    Appeal from the Superior Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Opinion filed December 8, 1886.
    Mr. Mason B. Loomis, for appellant.
    Mr. Wm. H. Condon, for appellee.
   Bailey, J.

This was a suit in assumpsit, brought by John Jenks against the Michael’s Bay Lumber Company, to recover for certain services alleged to have been rendered by the" plaintiff to the defendant in the sale of posts and telegraph poles at Chicago. The declaration contains two special counts, alleging services under an express contract of agency. The first count alleges that on the 24th day of June, 1885, the plaintiff, at the request of the defendant, agreed to enter the employ of and work for the defendant as agent, in the sale of posts and telegraph poles at Chicago, and to make contracts for the defendant therefor, during the remainder of the year 1885, and that in consideration thereof the defendant undertook, promised and agreed to employ the plaintiff to act for the defendant as its agent at Chicago for the purposes aforesaid, from June 24, 1885, until the close of the year, and agreed to pay the plaintiff therefor one cent for each and every post sold or contracted to be sold, and three per cent, of the profits arising from the sale or contracts made for the sale of telegraph poles by the plaintiff for the defendant; that the plaintiff accepted said terms, and in pursuance of said employment, on June 24,1885, entered into the service of the defendant, and while in said service, contracted and sold for the defendant 28,000 posts and <27,000 telegraph poles, the profit arising from the sale of said poles being forty cents each.

The second count sets out the contract in the same terms as the first, except that it alleges that the term of service was to continue from June 24, 1885, during the residue of that year and during the year 1886, and also alleges the same amount of sales of posts and telegraph poles, and the same profits from the sales of the poles; but the count further alleges that the defendant agreed with the plaintiff to furnish and supply all the posts and poles which the plaintiff should sell or contract to sell, and that although the plaintiff did sell or contract to sell large quantities of posts and poles, and would have sold and contracted to sell a much larger number than he did, at prices fixed by the defendant, yet the defendant, violating its aforesaid agreement with the plaintiff, on the 22d day of October, 1885, without reasonable or justifiable cause, wrongfully discharged the plaintiff, whereby the plaintiff was unjustly deprived of divers gains, profits, etc.

In addition to said special counts, the plaintiff filed a quantum valebant count for goods, wares and merchandise sold and delivered, and the common indebitatus assumpsit counts for goods, wares and merchandise sold and delivered ; for money lent and advanced, and paid, laid out and expended; for money had and received ; for interest for the forbearance of money ; for money due upon'an account stated; and also “for the price and value of work done, and materials for the same provided by said plaintiff for said defendant at the like special request of said defendant.”

The plaintiff gave evidence tending to show a contract between him and the defendant, by which he was to serve as the defendant’s agent in the sale of posts, ties and telegraph poles, and that by said contract he was to receive one cent for every post and tie sold, and three per cent, of the profits of all telegraph poles sold, but his evidence shows that in making said contract, nothing was said as to how long he was to remain in the defendant’s employ, no time being fixed. It thus appears that there was a clear variance between the terms of the contract proved and the contract alleged in the special counts. The contract alleged was for a fixed and definite term of service, while the contract proved was for no fixed period. It is clear that by reason of said variance, no recovery can be sustained under the special counts.

The trial before the court and jury resulted in a verdict and judgment for $575.57. We see no reason why the recovery may not be sustained under the common counts. If no term of service was stipulated for, the contract was terminable at any time at the pleasure of either party, and when so terminated by the defendant, it' was fully performed so far as the plaintiff was concerned, and nothing remained to be done but to pay him for the services he had performed. The case made by the evidence, then, was not one of partial performance, and where the agent has been wrongfully discharged and so prevented from full performance. Whether a recovery in such case could be had under the common counts, need not be considered here. The question is, whether services rendered upon a contract which has been fully performed can be recovered for under the indebitatus assumpsit counts.

It is a familiar rule of pleading, that when the terms of a special contract have been so far performed that nothing remains but a mere debt or duty to pay money, then the amount due may be recovered under a general count. 1 Chitty on Plead., 350, note f, and authorities cited. Says Mr. Chitty: “With respect to debts for work and labor or other personal services, and for materials used in performing the work, it is the rule that if preceded by the defendant’s request, then, however special the agreement was, yet if it were not under seal, and the terms of it have been performed on the plaintiff’s part and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient.” Ibid. 359.

It is claimed that the contract so far as it relates to the telegraph poles, was not fully performed, because the plaintifl was to receive, according to his version ot the contract, three per cent, of the profits of the posts sold, while the services performed consisted of making a contract on behalf of the defendant for the sale of posts. It is true that the plaintiff in one place states that he was to have three per cent, of the profits of all posts he could.sell, but the entire evidence renders it apparent that the procuring orders or contracts for posts were sales within the meaning of the parties. But even if that were otherwise, the plaintiff, in making such orders, performed services for which he is entitled to compensation, and recovery can be had therefor under the indebitatms count. The defendant insists that in order to such recovery there should have been a quantum meruit count. The rule, we think, is otherwise. The learned author already quoted, in discussing the office and necessity of quantum mermt counts says: “ AlthoughSir William Blackstone mentions the quantum meruit and valebant as useful, and as then to have been supposed, necessary variations to avoid the risk of the plaintiff’s not being able to prove an agreement to pay a fixed price, the opinion of the profession has long been that such quantum meruit and quantum valebant counts are wholly unnecessary, and that under an indebitatus count in assumpsit or debt, the plaintiff may recover, although there be no evidence of a fixed price.” Ibid. 352.

The evidence of the employment of the plaintiff by the defendant to perform the services in question, and as to the performance of said services, is conflicting, but we find no such preponderance of the evidence in favor of the defendant as should take the case out of the general rule that where the evidence is conflicting, the verdict of the jury should be held to be conclusive. We find no material error in the instructions to the jury, or in the rulings of the court at the trial. The judgment will be affirmed.

Judgment affirmed.


author: Bailey J.

text:
    Zeno Schirmeier et al. v. Elizabeth Baecker.
    1. Practice—Amendments.—In an action on the'case, defendants, failing to appear, were defaulted, and the plaintiff’s damages were assessed by a jury at $250. Before final judgment defendants appeared by attorney and entered their motion in arrest of judgment, on the ground of misjoinder of counts, which motion was overruled, the plaintiff at the same time, by leave of court, amending her declaration by striking out the objectionable counts. Defendant then moved to set aside the verdict, and for leave to file a plea of not guilty instanter. Held, that the action of the court in overruling such motions and rendering judgment for plaintiff for $250 and costs was proper.
    2. Same—Presumption.—In support of the judgments of courts of general jurisdiction, the law will indulge in any reasonable presumption not rebutted by the record itself, and upon that principle it will he presumed that the court who heard the evidence would not have permitted the amendment above and given judgment on the other counts, if any portion of the evidence adduced before the jury had app.ied to any of the counts expunged.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 8, 1886.
    Messrs. Blanke & Chytraus, for appellants;
    cited 1 Chitty on Pleading, 202; Dalson v. Bradberry, 50 Ill. 82; Bardill v. Trustees, 4 Bradwell, 93 ; Empire Fire Ins. Co. v. Real Estate Trust Co., 1 Bradwell, 391.
    Mr. Lours Weser, for appellee ;
    cited Snyder v. Gaither, 3 Scam. 91; Lusk v. Cook, 1 B’s B. 84; Ottawa G. L. Co. v. Thompson, 39 Ill. 599; Demesmey v. Gravelin, 56 Ill. 93.
   Bailey J.

This was an action on the case, brought by Elizabeth Baecker against Zeno Schirmeier and Johanna Mueller for malicious prosecution. The declaration consisted of five counts. The first count alleged that the defendants maliciously and without probable cause appeared before George Kersten a justice of the peace, and sued out a warrant for the arrest of the plaintiff, for an alleged violation of an ordinance of the city of Chicago, and maliciously and without probable cause procured the arrest and imprisonment of the plaintiff thereon. The second count was like the first, except that it alleged the suing out of the warrant before Max Eberliardt, anpther justice of the peace. The third count complained of a similar grievance committed by defendant Schirmeier alone, and the fourth and fifth counts complained of similar grievances committed by defendant Johanna Mueller alone.

The defendants were duly served with process, but, failing to appear, were defaulted, and the plaintiff’s damages were thereupon assessed by a jury at $250. After the assessment of damages, and before final judgment, the defendants appeared by their attorneys and entered their motion in arrest of judgment, on the ground of the misjoinder of counts; which motion was overruled, the plaintiff at the same time amending her declaration, by leave of the court, by striking out the third, fourth and fifth counts. The defendant then moved to set aside the verdict, and for leave to file a plea of not guilty instanter/ which motion was overruled, and the court thereupon rendered judgment in favor of the plaintiff for $250 and costs. The defendants bring the record here by appeal.

If the declaration had remained as originally drafted, there can be no doubt that the motion in arrest of judgment should have been sustained. Mr. Chitty lays down the rule as follows: “In actions by and against several persons, whether ex contractu or ex delicto, all the causes of action must be joint. Thus, a plaintiff can not, in a declaration against two defendants, state that one of them assaulted him, and in another part that the other assaulted him, or took his goods, for the trespasses are of several natures and against several persons, and they can not plead to the declaration.” 1 Chitty on Pleading, 224. The same learned author, in discussing the consequences of a misjoinder of counts, says: “The consequences of a misjoinder are more important than the circumstance of a particular count being defective, for in the case of a misjoinder, however perfect the counts may respectively be in themselves, the declaration will be bad on general demurrer, or in arrest of judgment, or upon error.” Ibid. 228.

It can not be doubted, however, that it was within the discretion. of the court, under our present statute, to permit the plaintiff to amend her declaration by expunging all the counts except those in which the • defendants were jointly charged with malicious prosecution. After the amendment there was no longer any misjoinder of counts, and the only question is, whether any prejudice is shown to have been done the defendants by the amendment. The practical difficulty with the judgment if it had been rendered upon the declaration as it was originally drafted, aside from the impossibility of forming proper issues, would have been, that it could not have been determined from the record whether the damages which were assessed against both the defendants jointly, may not have been given in whole or in part for forts, of which one or the other was wholly innocent. Is such difficulty obviated by the amendment ? We think it is. The evidence upon which the jury assessed the plaintiff’s damages is not preserved in the record, and it is impossible for us to know to which count it may have applied, except by means of those ¡resumptions which the law raises in support of the judgments of judicial tribunals. In support of the judgments of courts of general jurisdiction, the law will indulge in any reasonable presumption not rebutted by the record itself, and upon that principle it will be presumed that the court who heard the evidence would not have permitted the plaintiff to expunge from her declaration the last three counts, and take judgment on the other counts, if any portion of the evidence adduced before the jury-had applied to either of the three counts so expunged. The record shows nothing to the contrary, and so it must be deemed to be established by legal presumption that the plaintiff’s damages were assessed under the first and second counts, and that no damages were given by the jury under the other counts. We can not see, then, how the defendants are shown to have been prejudiced by the amendment.

We do not think that there was any error in refusing to impose, as the terms upon which the amendment should be allowed, a vacation of the verdict with leave to the defendants to plead. The imposition of terms on allowing an amendment, is largely within the discretion of the court. The amendment in this case consisted merely in the abandonment of a portion of the plaintiff’s declaration. Ho new cause of action was introduced, nor was any cause uf action already declared upon re-stated, so as to admit of the introduction of a different defense, or of any different line of evidence. Assuming, as we must, that the evidence upon which the damages were assessed applied only to the first two counts, the plaintiff’s right to abandon and dismiss the other counts was so much a matter of course, that there was no error in refusing to impose any terms whatever.

We are of the opinion that there is no error in the record, and the judgment will accordingly be affirmed.

Judgment affirmed.


text:
    Anglo-American Packing and Provision Company v. John Baier.
    1. Evidence—Practice.—Where the question put to a witness in terms called for a statement as to the general habits of the plaintiff as a worker, which was incompetent and illegal evidence, and the court deliberately, after discussion, decided that that species of evidence was competent, and overruled the defendant’s objection to it, defendant, in order to make its exception available, was not required to move to have the answer excluded.
    2. Same—Waiver oe exception.—-Nor would the failure to object when the same species of evidence was subsequently offered have any tendency to operate as a waiver of the exception preserved.
    3. Negligence—Evidence.—Upon the question whether plaintiff was in the exercise of ordinary care and skill at the time of the injury, it is competent to prove by persons having knowledge of the fact that he was commonly careless and .unskillful in the particular matter in question.
    4. Instructions.—An instruction to disregard incompetent evidence does not cure the error of admitting such evidence.
    Error to the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed December 8, 1886.
    This was an action by Baier against the Anglo-American Packing and Provision Co., to recover for a personal injury to the former, occasioned, as it was alleged, by the negligence of the latter. Upon a trial under the plea of general issue, the plaintiff below had judgment for $7,500, exclusive of costs, and defendant below brings error to this court.
    It appears that October 6, 1883, said plaintiff being employed by defendant in the capacity of feeder to a certain machine operated by steam power, called a sausage grinder, it was his duty to put pieces of meat which had been prepared and placed upon a table opposite an opening in said machine, into the same, for the purpose of having it cut and ground into sausage meat; that said opening where said meat, was so put into said machine was so high above the floor of the room that plaintiff was obliged in the performance of his work to stand upon a stool which stood about eighteen inches above said floor; that while plaintiff was so engaged on the day aforesaid, his left hand was put into said opening so far as to get caught by some of the knives of the machine, which, was then in operation, and so cut and lacerated thereby that amputation of said arm above the wrist became necessary and took place. It was alleged and sought to be proved that the plaintiff, at the time in question, was in the exercise of reasonable care and prudence, but that said stool on which he was standing was in a bad and unsafe condition, by reason whereof it tipped and went out of its proper place, in such manner as to cause plaintiff to unavoidably thrust his hand into said opening; that he had but a short time previously called the attention of defendant’s foreman of said work to such condition of said stool, and that he had promised to have it repaired, but had not done it. On the other hand it was contended on the part of defendant, that plaintiff carelessly put his hand into said machine without stopping it, or turning off the power, in order to remove meat in there which clogged the machine; that the said stool was in a reasonably safe condit-ion, and that no actual foreman of defendant had been notified of defects therein, or promised to have it repaired.
    The plaintiff below called one Free as a witness, who testified that he had worked with plaintiff at the defendant’s factory, but was absent at the time of the injui'y in question. The plaintiff’s counsel asked the witness to state what were the habits of the plaintiff as a worker. To this defendant’s counsel objected, but the court overruled the objection and defendant duly excepted. The witness answered: “He was a steady quiet, workingman. He was a good workingman.” After that ruling the plaintiff’s counsel asked the same question of two other witnesses for plaintiff, and obtained substantially the' same answer; but the defendant did not renew the objection to such inquiry.
    The plaintiff called as a witness one Englen, who testified that he was close by the machine and was assisting the plaintiff; that he was stooping down just at the time of the accident, and so did not see how plaintiff got his hand into the machine, which was then in motion by steam power. He testified as to the bad condition of the stool and the machine itself, as well as to the manner of operating it. On cross-examination by defendant’s counsel, he was asked the following questions: “Did the meat ever get clogged up in that machine? If the meat got clogged up in that machine, what would you do to free it, or what would Mr. Baier do? Is’nt it a fact that Mr. Baier used to put his hands down into the funnel for the purpose of freeing the machine from the meat ? ” To each of which questions the plaintiff’s counsel objected; the court sustained each objection, and the defendant’s counsel excepted. When the case was submitted to the jury, the court, at the instance of plaintiff’s counsel, instructed the jury to disregard the evidence of said Free as to plaintiff’s habits as a worker, but said nothing as respects the testimony of the other witnesses to the same effect.
    Messrs. Page & Booth, for plaintiff in error.
    Mr. Philip Stein, for defendant in error.
   McAllister, P. J.

We are of opinion that the court erred in overruling the objection of defendant below to the question put to witness, Free, as to plaintiff’s habits as a worker. The counsel for the latter concedes in his argument that the answer of the witness was incompetent. But he contends that the error is unavailing, because there was no motion on behalf of defendant below to exclude the answer, and also because questions of the same import and character were put by plaintiff’s counsel to other witnesses without objection on the part of defendant, and substantially the same answers given. That, the counsel says, was a waiver of the exception taken to the question to Free, and the answer of the other witnesses being properly in, because not objected to, the defendant could not be prejudiced by the answer to the question put to Free.

We do not regard the positions so taken as tenable.

The question put to Free, in terms, called for a statement as to the-general habits of the plaintiff below, as a worker. It therefore called for incompetent, illegal evidence. And when the court deliberately, after discussion, as the record shows was the case here, decides that that species of evidence is competent and overrules the defendant’s objection to it, the latter, in order to make its exception available, was not required to move to have the answer excluded. All such rules of practice are based upon sound sense and considerations of convenience in the administration of justice. Gilmer v. City, etc., of Montgomery, 26 Ala. 665.

The defendant below, having taken the opinion of the court as to the competency of that species of evidence when the question was put to Free, and preserved an exception to the ruling, was at liberty to rest upon that exception, and was under no necessity, in order to make it available, to renew the objection when the same species of evidence was offered by the same party a second or third time. George v. Morris, 23 Ark. 121.

Mor did the failure to object when the same species of evidence was subsequently offered have any tendency to operate as a waiver of the exception preserved. Pfiel v. Kemper, 3 Wis. 315; Flanigan v. Lampman, 12 Mich. 58.

We are also of opinion that the court erred in refusing to allow the questions set out in our statement of the case, and asked by defendant’s counsel on cross-examination of plaintiff’s witness, Englen, to be answered.

Considering the nature and tendency of the evidence of that witness upon his direct examination, each of the questions asked and excluded on cross-examination was legitimate and proper. The plaintiff below was subject to the burden of proving tha1 there was no want of ordinary care and prudence ón his part to avoid the injury. Mot only that, but the theory of the defendant below, based upon the very circumstances attending the accident, was, that the latter was not the proximate result of defects in the machine or its appurtenances, but was occasioned by the plaintiff having used his hands to remove the meat, when the machine got clogged with it, without turning off the power and stopping its action. In short, that the injury was caused by his own carelessness.

The witness testified to circumstances tending to show that, in the absence of every other, the tipping of the stool was the proximate cause. Mow, would it not have been competent, on cross-examination, to have drawn out of the witness the fact that the plaintiff, at the very time, was improperly using his hands to remove a clog without first turning off the power? Of that there can be no doubt. The facts sought to be drawn out by the questions put and excluded had the same tendency, and were, therefore, proper cross-examination. The last of those questions was this:

“ Isn’t it a fact that Mr. Baier used to put his hands down in the funnel for the purpose of freeing the machine from the meat?”

By that question the witness was called upon to speak as to a fact, not from hearsay or reputation, but from his own personal knowledge; and which might lead to the development of the truth, that the plaintiff was commonly careless and unskillful as a feeder of said machine. There is high authority for saying that upon the question whether plaintiff was in the exorcise of ordinary care and skill at the time, it is competent to prove, by persons having knowledge of the fact, that lie was commonly careless and unskillful in the particular matter in question. Adams v. Carlisle, 21 Pick. 146; Baldwin v. Western Railroad Co., 4 Gray, 335.

Under the decisions in this State, the instruction of the court to the jury to disregard the evidence of Free as to plaintiff’s habits as a worker, can not he regarded as curing the error of admitting that evidence, especially since the court left to the jury that of the same species, called out from the other two witnesses, by questions the same as that to Free, which the court ruled to be proper.

The record shows that the trial involved a sharp contest, upon the questions of negligence as respected both parties, and what was the proximate cause of the injury. There was no such clear preponderance of the evidence in favor of the. plaintiff below, as to justify this court in holding that the evidence improperly admitted, could not possibly have influenced the jury, or that any substantial error against, could not have prejudiced the defendant’s case. The damages are very large, and there are some other rulings and points presented by the record and urged as errors, which we not deem it necessary to discuss, but which, when considered in connection with the errors stated, go to satisfy us that, under the circumstances of this case as tried, the defendant below did not have a fair trial, and that the case should go before another jury. The judgment will therefore be reversed and the cause remanded for a new trial.

Judgment reversed.