text:
    Westchester Fire Insurance Company, Appellant, v. Herman Struck, Appellee.
    Gen. No. 6,280.
    1. Account stated, § 15

      —when no presumption that omitted items not chargeable. The rule that omission of items from repeated statements of accounts raises a presumption that such items are not properly chargeable does not apply where certain items are omitted under an express agreement of the parties.
    2. Contracts, § 285*—what does not constitute an abandonment of a claim under contract. Failure to demand or collect during a period short of that fixed by the statute of limitations does not amount to an abandonment of a claim under a contract.
    3. Insurance, § 64*—when failure to demand payment does not defeat recovery by agent on contract for extra commissions. Failure of an insurance agent, for a number of years, to demand payment for extra commissions earned, where there was no evidence of an intent to abandon the claim, held not sufficient to defeat a recovery for commissions which became payable within the period limited by the statute of limitations.
    4. Insurance, § 64*—when action by insurance agent on contract for extra commissions not prematurely brought. In an action by an insurance agent to recover extra commissions which, according to contract, were to be a certain percentage of the excess of premiums over losses during each year of the agent’s employment, the action having been brought after the termination of such yearly periods, held that the possibility that there might be future losses on policies in force at the time of the institution of the action was immaterial.
    5. Contracts, § 349*—when third person may maintain action on in his own name. An insurance agent who had, under a trade name, contracted with an insurance company for commissions, held entitled to recover under the contract in his own name, he having at all times been the sole proprietor of the business, which fact was known to the company.
    6. Appeai and error, § 1494*—when exclusion of evidence as to existence of partnership harmless error. In an action, brought in his own name, by an insurance agent to recover commissions under a contract entered into by him under a trade name, held that the ruling out of evidence offered by the insurance company to show that the plaintiff was not the only one interested in the business but that he was in partnership with another at the time of making the contract, was harmless error, if error at all, the evidence being so strong as to leave no doubt that he was the sole proprietor of the business and that the defendant company knew it.
    7. Insurance, § 64

      —when instruction in action 6y agent for commissions under contract correct. In an action by an insurance agent for commissions, under a contract calling for payments at yearly intervals, an instruction that such contract, if proven by a preponderance of the evidence, would, as a matter of law, be presumed to be in force until it was shown by the evidence that it had terminated, or that it was the intention of the parties to abandon or rescind it, held proper.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Covet, Campbell & Covet and Evans & Evans, for appellant.
    Clarence W. Hetl and Harrt C. Hetl, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Herman Struck, the appellee, was agent of the Westchester Fire Insurance Company, the appellant, continuously at Pekin, Hlinois, from 1894, and also at Peoria, Illinois, from 1900 until March, 1914, when appellant terminated his agencies. On and after November, 1913, he collected at said agencies $1,539.40 of appellant’s money and refused to turn it over, claiming that appellant was indebted to him on a contract for extra commissions. This action of assumpsit was brought to recover that amount. Appellee pleaded a tender of $55.70, and a set-off of $1,488.97. Appellant replied a general denial to each plea and the Five-Year Statute of Limitations to the plea of set-off. On the trial the defendant was permitted to open and close the case. The tender was proven without controversy. The claim for extra commissions was confined to a period of five years before the beginning of the suit. For that reason we assume no point is here made on the statute of limitations. The main contention is whether appellee is, on the merits, entitled to judgment on his plea of set-off. There was a verdict for the defendant and judgment on that verdict against the plaintiff for costs, from which this appeal is prosecuted.

During most, if not all, the time that appellee was so acting as agent there was in that district a union among certain insurance companies, including appellant. This union employed an inspector and maintained an inspection bureau whose business it was to see that such company obtained proper rates on all policies written, maintained the agreed scale of commissions to its agents, and observed other rules of the union. Agents’ commissions were fixed on what was called the “graded scale” of fifteen, twenty, and twenty-five per cent, according to a classification of risks. Agents books were kept showing their business and monthly reports made through this inspection bureau. While appellee was acting as agent only in Pekin before his appointment at Peoria, appellant had some agreement with him, apparently in violation of union rules, to pay him an extra or bonus commission of ten per cent, on the net premiums after the deductions of losses paid for each year in addition to his graded commissions. After his appointment at Peoria it appears that in 1901 an authorized agent, now deceased, of appellant made a contract with him that he should continue to receive the same bonus or extra commission on his business at both offices so long as appellant’s company remained in his office, and that the extra commission would be paid to him directly, and that he should keep no record of the matter on his books and make Ms reports as though no such contract existed. The reason for this secrecy is obvious. Because of the death of the agent appellee did not testify to the contract, but it was proven by his bookkeeper, and letters of the agent were admitted in evidence, leaving no doubt that such contract was made. Appellee testified that it was never changed. The basis of computation was on the annual premiums received and annual losses paid. We need not enter into that in detail, because we do not understand appellant to deny that the amount claimed in the plea of set-off is correct if the contract was in force during the last five years of appellee’s agency, except two objections that we will notice hereafter.

Payments were made to appellee covering extra commissions before July 1, 1901, but after that time until November 1,1913, he made no claim on appellant for commissions above the graded scale. He made monthly reports of Ms business and settlements thereon during that period that showed business done, commissions charged and collected, and settlements made in accordance with the union agreement. The company sustained large and unusual losses in that district in the period from 1901 to 1909, which is said by appellee’s counsel to account for no claim made during that time. The son of appellee was appointed State agent of appellant about August, 1909, and so acted until 1913, apparently with authority to adjust such matters. Appellee talked with him, as such agent, about this bonus commission and told Mm it ought to be paid, and his son told him that he knew about the deal in Peoria and Pekin; that he had read letters to him written by Ms predecessor, but asked him not to press the matter wMle he was acting as agent, or something to that effect. The son testified that he was told by an officer of appellant when he assumed his duties that he would find any number of those contracts for extra commissions and he would have to treat them very carefully because it was something out of the ordinary.

Appellant devotes a large part of its brief to a citation of and quotations from authorities on the effect of accounts stated or settled and acquiesced in for a long time. It is true that ordinarily repeated statements of accounts omitting certain charges raise a strong presumption that such items are not proper charges for collection. Whether presumptions of law or fact, as a rule, arise from such a course of stating accounts and settlements thereon, we need not discuss, because we know of no law and can see no reason for applying such a rule to a case like this where the items were omitted under an express agreement that the account should be stated in that way. Appellant also insists that the failure to make any demand for payment for so long a time should be construed as an abandonment of the claim. There is certainly no rule of law that treats a failure to demand and collect as an abandonment of .the claim, or that denies the claimant’s right to collect in any period short of that fixed by the statute of limitations. It was said in Evans v. Gerry, 174 Ill. 595, 604: “Where an abandonment or waiver is relied upon, it must be shown to have been the clear intention of the parties to abandon the contract previously entered into. (Mix v. White, 36 Ill. 484.) Courts will indulge no presumptions in favor of a waiver of a contract where specific performance is attempted to be enforced, nor will it infer waiver or abandonment upon slight proof. (22 Am. & Eng. Encyc. of Lawr 1062.) ” This case was cited and its doctrine reaffirmed in Turn Verein Eiche v. Kionka, 255 Ill. 393, 398. We see no ground for holding that the contract was abandoned. The presumption is that the contractual relation continued to exist. (1 Corpus Juris, page 7.)

Appellant claims that there is no proof of the amount of loss on business of 1914; therefore no basis for computation for that year. Appellee ■ did make sufficient proof as to losses of 1914 to make a prima facie ease as to that item. If they were greater than he showed, it was in the power of appellant to show that fact. There is a suggestion by appellant that there might be future losses on policies in force at the time the suit was commenced, and therefore the net premiums could not then be computed, and the suit was prematurely brought. We may not understand appellant’s position. As we understand the contract, settlements were to be made each year on the basis of receipts and losses of that year. In this view of the contract the data was before the jury if the receipts and losses in each year, were sufficiently shown.

Appellee, Struck, at and sometime before the Peoria contract for extra commissions was made,, was doing business under the name of Jas. A. Edds & Company. The agency was owned by appellee. No other person had any interest in it. It was not a Corporation, or partnership. About five years before the present suit was begun he changed the name both at Peoria and Pekin to Herman Struck. There is no controversy about these facts, but appellant claims that if it made the Peoria contract for extra commissions, as charged, it was with Jas. A. Edds & Company, and as the amount charged and recovered for in the plea of set-off accrued in the agency of Herman Struck, he could not recover under the contract with Edds & Company. The evidence is not only clear, as above stated, that Edds & Company was simply a trade name used by appellee in which he did business and made his reports to the company for a term of years, but it is also we think clear beyond question that appellant knew that fact. Appellant’s letters written to appellee in relation to this contract about the time it was made in 1901 were addressed to him personally; the contract was made with him personally. There is an indication that the name of the agency was changed because of a rate war at Pekin. We do not think any significance should be attached to the fact of appellee’s using this trade name. Objections were sustained to questions 'asked him and his bookkeeper in their cross-examination in relation to the use of that name which counsel stated were asked for the purpose of showing that the firm was composed of two men, and that at the time of the alleged agreement in 1901 the business in Pekin and Peoria was carried on in the firm name. If it was error to sustain such objections, it did no harm, as there was no question that the business was carried on at that time in the firm name, and the affirmative evidence that appellee was the only party interested, and that appellant knew it, is so strong as to leave no doubt about that matter.

' Appellant argues that the court erred in instructions to the jury, and summarizes that contention by saying that there is no evidence in the record tending to show the agency was for any specific length of time. (In which, as we have before seen, it is mistaken.) It says the agency was subject to revocation at any time because there was no express agreement for a fixed time, and that the court refused to adopt its theory that the repeated statements of account by appellee and acquiescence in the same by the company constituted settlements from time to time, but instructed the jury, at the instance of appellee, that if he had shown by a preponderance of the evidence that the contract for extra commissions was entered into as claimed by him, then, as matter of law, the contract is presumed to be in force until it is shown by the evidence that it terminated, or that it was the intention of the parties to abandon or rescind it, and refused instructions offered by appellant to the effect that if the parties made settlements based on such reports and the course of dealing from July 1, 1901, to November 1, 1913, led appellant and its officers to believe that appellee was writing insurance on such graded commissions, then it would be a fraud upon appellant for appellee to afterwards claim a greater commission than he had been making settlements for during the period covered by those statements, and he would be estopped from claiming any greater commissions than charged in his reports, and that the instructions of the court withdrew from the jury’s consideration appellant’s defense that the conduct of appellee in making settlements estopped him to claim the bonus commission. As we have before said, we do not think his conduct did so estop him as matter of law or matter of fact. He did not put his claim into his settlement statements because he had expressly agreed not to do so. The court could not instruct the jury as matter of law that the failure to demand payment of a valid claim short of the period of the statute of limitations should be considered as an abandonment of waiver of the claim, or as fraudulent on the part of the claimant. We do not think appellant’s criticism of the instructions well grounded. For the reasons above stated the judgment is affirmed.

Affirmed.

Niehaus, P. J., took no part.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Edwin Romberg, Appellee, v. Interstate Independent Telephone & Telegraph Company, Appellant. H. D. Kellogg, Appellee, v. Interstate Independent Telephone & Telegraph Company, Appellant.
    Gen. Nos. 6,283, 6,284.
    Gen. No. 6,285.
    Bonds, § 25

      —when holder of interest coupons secured hy trust deed has right of action. A trust deed securing bonds and interest coupons, held neither expressly nor impliedly to deprive the holder of coupons of a right to bring an action thereon at common law.
    Appeal from the Circuit Court of Kane county, as to Gen. No. 6,285, and County Court of Kane county, as to Gen. Nos. 6,283, 6,284; the Hon. Mazinni Slusseb, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Fred A. Dolph, William H. Gallagher and R Harold O ’Connor, for appellant; E. J. Marshall, of counsel.
    Alschuler, Putnam & James, for appellee Romberg.
    Robert G. Earley and Wentworth, Cavender & Kaiser, for appellee Kellogg.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section, number.

   Mr. Justice Carnes

delivered the opinion of the court.

The three cases above entitled were each begun in a justice of the peace court to recover on interest coupons attached to bonds issued by the appellant. Each tried on appeal in the court above indicated resulting in a judgment for the amount claimed, and appeal to this court. The same questions are involved, the same briefs and arguments are printed and filed in each case. Bach of the first two cases was for eight coupons, on which judgment was entered for $200. The third is on two coupons, on which judgment was entered for $51.86. Appellant says:

“The question involved in all of the cases is the right of an individual coupon holder to bring an independent action at law without reference to the rights of his co-bondholders or without notice to the trustee in the trust deed securing the bonds, where the trust deed conveys all property of the corporation of every kind in trust for the equal and pro rata security of all bonds without preference or priority and where the trust deed specifically vests all right of action in the trustee. ’ ’

Which question we would answer in the negative if it were true that the trust deed specifically vested all right of action on the coupons exclusively in the trustee. The coupons were the usual form, and were attached to bonds secured by a trust deed covering all the property of appellant. A large part of appellant’s brief is devoted to the propositions that the coupons, bonds and trust deed are all to be taken as a part of the same contract; that the holders of the coupons are charged with notice of and are hound by all the restrictions contained in the trust deed, and while not denying the right of these holders of coupons to bring these actions thereon in the absence of any restraining provision in the trust deed, appellant insists that there are such restrictions in that instrument contained precluding these actions by the plaintiffs, and cites many cases in support of its contention that the holder of coupons cannot maintain an action at law thereon in violation of stipulations in the trust deed securing the bonds to which they were attached forbidding such action. Belleville Sav. Bank v. Southern Coal & Mining Co., 173 Ill. App. 250, and Boley v. Lake St. El. R. Co., 64 Ill. App. 305, are cited and much relied on to support that position. It is assumed that those cases, if accepted as authority, control the decision here. In the Belleville Savings Bank case, supra, there was an expressed provision in the trust deed: “That no holder of any bonds or coupons should have the right to institute any action at law upon any coupon, or institute any suit or proceedings in equity, or otherwise, under said instrument except in case of refusal on the part of the trustee,” etc. In the Boley case, supra, the trust deed provided that: “Under no circumstances shall the holder of any bonds or coupons, or any number of such holders, have any right to institute, any action at law upon any coupon or coupons, or otherwise, or any suit or proceedings in equity or otherwise, under this indenture, for the purpose of enforcing any payment, covenant or remedy herein, or in said bonds contained, * * * except in case of refusal on the part of the trustees,” etc. In those two cases these restrictions were held binding on the holder of coupons. But in the Boley case the court said on page 313: “Provisions of this kind are to be strictly construed,” citing many authorities.

Appellees say they are willing to concede that their right of recovery depends upon whether or not there are any restrictions in the trust deed, which deprive them of their common-law right of action, and insist there are no such restrictions. Without further investigation or discussion, we will assume that the two above cited Appellate cases are good law, and discuss the question left by counsel for our consideration whether there are any such restrictions contained in the trust deed.

The parts of that instrument deemed by appellant material to this inquiry are as follows: It covers all the property of appellant wherever situated; recites that it is made “for the equal pro rata use, benefit and security” of all owners of bonds issued thereunder, “without preference or priority of one bond over another, by reason of priority in time of issue or negotiation thereof, or otherwise”; provides that in case of default in interest payment the holders of a majority in amount of the bonds may, by an instrument in writing, notify the trustee of such default and declare the principal and all said bonds due and payable and request the trustee to proceed under the trust deed “for the collection of the principal and interest of said bonds ’ ’; that the trustee might forthwith demand and take possession of all the property conveyed, and as the attorney in fact or agent of appellant, or in his own name, as trustee, have, hold, use, manage, operate and enjoy the same, with other provisions as to method of management, and that the trustee shall apply the net income without preference, priority or distinction of one bond over another, ratably and equally to the payment of the principal and interest of said bond; that the trustee with or without entering into possession of said .property, as aforesaid, “may proceed to protect and enforce the rights of all of the said bondholders under these presents by appropriate suit or suits in equity or at law” as it might be advised, with other provisions for a receiver, etc. It is provided: “That no holder or holders of any of said bonds or coupons shall have the right to institute any proceedings of whatever character or kind for the foreclosure of this indenture, or the execution of the trusts hereof, or for the appointment of a receiver, or for any other remedy under this trust deed, without first giving notice in writing to the said trustee,” etc. (No such notice was given.) Then follows provisions as to indemnity to be furnished the trustee, and manner of procedure; and further provided: 1 ‘ That neither the said trustee nor the holder or holders of any of said bonds, or any of the- said interest coupons intended to be hereby secured, shall institute any suit, action or proceeding for the foreclosure thereof, or for the appointment of a receiver otherwise than upon the terms and conditions and in the manner herein provided. ’ ’

These are all the provisions relied on by appellant in support of its claim of stipulations in the trust deed barring these suits at law. There "is nothing in the trust deed that expressly forbids the holders of coupons to bring actions at law thereon. We think the law is correctly stated in Jones Corporate Bonds, section 340, quoted in 49 L. B. A. (N. S.), page 160, as follows: “The fact that a railroad mortgage empowers the trustees, upon the written request of the holders of bonds to a specified amount, after breach of the condition, to sell the property is no defense to a suit at law upon the bonds or coupons after they are payable. The bonds are the principal debt, and the mortgage is only an incidental security. The. remedies at law and in equity do not clash and destroy each other, but exist together. * * * The mortgage might positively, or perhaps impliedly, take away from the bondholder his right of action at law upon the bonds or coupons; but the common-law right to enforce these obligations remains if not so taken away. ’ ’ Many other authorities on the subject are collected in the note to L. B. A. above referred to. The trust deed under consideration in the present case does not expressly take away the right of action at law on these bonds. The only question is whether it impliedly takes it away. We do not decide that it might be taken away by implication. An examination of the authorities leaves that question at least.doubtful; but even if it could be, there is no such implication in the trust deed under consideration except that arising from the evident intention that all the bondholders should share equally in the proceeds of appellant’s property if it became necessary to enforce payment by resorting to the trust deed. This implication, as will be seen by a reference to the authorities cited in the note to L. B. A. above mentioned, does not bar a suit at law on the coupons. Whether it prevents a collection of a judgment obtained in such suit at law by levy on and sale of property covered by the trust deed, is a question not now before us. It would seem from the published abstract of the opinion that the Appellate Court of the First District reached the conclusion here expressed in the case of Kellogg v. Interstate Independent Tel. & Tel. Co., 190 Ill. App. 187. Each of the three judgments is affirmed.

Affirmed.


text:
    R. B. Stoddard, Appellant, v. Daniel Keefe, Francis O’Neil and Walter Cooney, Drainage Commissioners of Drainage District No. 1 of Town of Hahneman, County of Whiteside, and State of Illinois, Appellees.
    Gen. No. 6,291.
    1. Drainage, § 91

      —when feasibility of improvement of drainage ditch question of fact. In a mandamus suit to compel drainage commissioners to so improve a drainage ditch as to prevent overflow on petitioner’s land, the feasibility of so doing held to be a question of fact for the trial court.
    2. Drainage, § 87*—what is duty of drainage commissioners in construction of ditches. While drainage commissioners are charged with the duty to furnish a sufficient channel for a drainage ditch, if it can be reasonably done, they are not required to expend large sums of money on schemes or experiments of doubtful benefit or utility.
    3. Drainage, § 90*—when mandamus will not lie to compel drainage commissioners to make improvements. A proposed improvement of a drainage ditch, held to be of such doubtful utility and effectiveness to prevent overflows as to justify the denial of a writ of mandamus to compel drainage commissioners to make such improvement.
    4. Drainage, § 101*—what does not constitute taking or damaging land. Allowing surface waters to drain upon lower lands or causing such water, which would otherwise evaporate' or seep through the soil, to be precipitated upon lower lands by artificial drainage, is not taking or damaging land, though without compensation made, in violation of the State constitution.
    5. Drainage, § 91

      —When proposition of law on duties of drainage commissioners correct. Propositions of law as to duties of drainage commissioners in determining upon a system of drainage; to keep ditches in repair; to remedy errors in location and construction of ditches; and to furnish an outlet sufficient to meet changing conditions in flow of water, held correct.
    6. Drainage, § 91*—when propositions of law as to duties of drainage commissioners in enlarging ditch properly modified. Insertion of the phrase “so far as practicable” in holdings of propositions of law as to the duties of drainage commissioners to enlarge a ditch, sufficient when constructed, so as to take care of additional flow of water into it resulting from ditches subsequently constructed in other districts, or from the construction of additional laterals and more extensive use of tile, held correct.
    7. Drainage, § 87*—what not duty of commissioners in altering construction of ditch. It is not the duty of drainage commissioners to so alter the construction of a ditch as to prevent the overflow of water on a landowner’s land, regardless of cost, since lands in a district cannot be assessed for a sum greater than the benefits derived from an improvement.
    8. Drainage, § 91*—when action for writ of mandamus to compel drainage commissioners to remedy defective conditions in ditch accrues. To entitle a landowner to a writ of mandamus to compel drainage commissioners to remedy defective conditions in a ditch, demand must be made within a reasonable time after the condition complained of arises, and suit brought within five years after such demand.
    9. Drainage, § 91*—when statute does not run against right to bring mandamus to compel drainage commissioners to remedy defective conditions in ditch. So long as a landowner does not know the cause of the insufficiency of a drainage ditch and is diligent in seeking the cause thereof, the statute of limitations does not begin to run against a right to bring a mandamus suit to compel the commissioners to remedy such condition.
    10. Drainage, § 91*—when statute not bar to mandamus suit to compel commissioners to repair ditch. If the insufficiency of a drainage ditch is due to failure to keep it in repair, the statute of limitations is no bar to a mandamus suit to compel the commissioners to remedy such condition.
    11. Drainage, § 90*—when commissioners may be compelled to remedy defective conditions in drainage ditch. It is not a defense to a mandamus suit, to compel drainage commissioners to remedy defective conditions of a ditch, that lands in the district other than those of the petitioner are sufficiently drained and will not be benefited by the improvement sought by the petitioner.
    12. Drainage, § 87

      —when commissioners no right to spill water from ditch. Drainage commissioners have no right to collect waters from lands distant from their district, convey them in artificial channels and spill them in large quantities upon lands in their district out of the natural course of their drainage.
    13. Drainage, § 91*—when petition for writ of mandamus properly dismissed. A petition for writ of mandamus to compel drainage commissioners to remedy a defective condition in a ditch, held properly dismissed where such condition existed more than five years before filing of the petition, and, if the petitioner did not know of it before such period, it was so obvious that he should have known of it.
    14. Mandamus, § 6*—when lies. Mandamus lies only where there is a clear legal right to have an act performed which it is the defendants’ duty to perform in the manner asked.
    Appeal from the Circuit Court of Whiteside county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    M. A. Stiver and Clyde Smith, for appellant.
    Carl E. Sheldon, for appellees.

      Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. ’

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number-

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment rendered against the petitioner, B. B. Stoddard, in a mandamus suit prosecuted by him against appellees, as commissioners of a drainage district organized under our Farm Drainage Act, to compel them to widen, straighten, deepen and repair their main ditch from the right of way of the C. B. & Q. B. B. Co., to its outlet in Green Biver, about two and one-fourth miles, so as to prevent overflow and damage to appellant’s half section of farm land abutting that part of the ditch. The case was tried by the court without a jury on pleadings, stipulations and evidence, presenting the questions: (1) Whether the part of the ditch sought to be improved is now reasonably sufficient for the purpose for which it is used? (2) Whether appellant’s land has been damaged by overflow because of an insufficiency of that part of the ditch? (3) Whether, if that part of the ditch is insufficient, it can reasonably be enlarged and* its present banks raised in the manner demanded by appellant? (4) If the above three questions are answered in the affirmative, whether appellant is barred by the statute of limitations or by laches from demanding in this proceeding the relief sought ?

The controlling questions are of fact, upon which the court heard much testimony. It appeared that prior to 1881 there was about 25,000 acres of land near Green Biver that was for a large part uncultivatable because of swamps and ponds, and therefore of little value; that it was capable of drainage into Green Biver by artificial means through large open ditches which would furnish outlets for tiling (we understand that the water on this land accumulated from surface drainage with a natural outlet, so far as it had an outlet, into Green Biver); that in 1881 appellees’ farm drainage district embracing about 7,000 acres near the river was organized, including all of sec. 32, T. 19 N., B. 7, in Whiteside county, Illinois, the east half of which section is now owned by appellant; that some work was done with teams and scrapers at about that time to construct a channel that would somewhat confine surface water in its course over that territory to the river; that afterwards in 1885 a classification of the lands in this district for the purpose of assessments for improved drainage was made, in which classification the east half of said section was set down at 90 and the west half at 70; 100 would indicate the highest assessment per acre to be made in the district. The scale of classification of all the lands ranged from 5 to 100, therefore we suppose the east half of section 32 was mostly unfit for cultivation and was presumed to be greatly benefited by the proposed improvement, though not necessarily all of it, even when tiled into the drainage ditch, fit to raise a com crop in a wet season. One Phebe Carter then owned the whole section and paid her assessment. A ditch with a twenty-five foot bottom down to sand was constructed from the upper part of the district to its southern boundary at the south line of said section 32, and thence south about half a mile to Creen River. It extended along the entire east line of said section 32. At about this time three other drainage districts were formed embracing the rest of said 25,000 acres of wet lands, and contracts were made between the commissioners of appellees’ district and the commissioners of said other districts respectively, permitting connection with the main channel of appellees’ district. Before 1899, the last of these improvements was completed and the entire water from the whole territory was discharging through this main channel of appellees’ district from artificial drains the same as now, except no doubt from time to time the flow of water was affected by different owners of land in the various districts tiling into the open ditches.

' In the part of the ditch here sought to be improved the volume of water is, and all the time has been, at times so large that reliance must be placed on the banks elevated by the deposit of soil in excavating the . ditch to confine it to the artificial channel. Appellant bought all of said section 32 in 1899, and sold the west half of it in 1912. In August, 1914, he served notice on appellees that the main ditch from the right of way of the railroad south to its outlet is not of sufficient width, depth and capacity to furnish ample and sufficient drainage to his land and other tributary lands, and to' prevent wash and overflow, and that he therefore demands that appellees proceed to deepen, widen and straighten the ditch and make sufficient banks thereto so that it will be of sufficient width, depth and capacity to furnish the necessary outlet to drain petitioner’s lands and other tributary lands, and prevent wash and overflow. Appellees, failing to comply with this demand, this suit was commenced to the April term, 1915, of the Circuit Court of Whiteside county. The petition filed prayed that appellees be compelled to make the improvement, using language substantially the same as used in the demand. Answers were filed, among other defenses setting up the statute of limitations, but the case was tried on a stipulation that all evidence might be received which would have been competent and admissible upon proper pleadings either on the part of the petitioner or respondents. It was not sought on the hearing to compel any improvement substantially other or different from that designated in the demand, and the argument here rests on the proposition that substantially that improvement should be ordered by the writ of mandamus.

It is clear that appellant’s farm has been benefited by the improvement and become valuable farm land, but that crops grown on a portion thereof are subject to damage from floods in extremely wet seasons, especially corn crops. He testified that during the fifteen years that he had owned the land he had seen it overflowed three times, and had seen the effects of overflow probably six or eight times. (He does not reside on the farm.) Another witness testified that it overflowed at some time during the year about eight times in the last ten years. Some of these times were in the early spring when most of such lands overflowed without damage. In 1915, after this suit was begun but before the trial, the tenant on the place lost from flood a considerable portion of his corn crop. In the present condition of drainage an extreme wet season will be unfavorable to cropping a part of the premises. Because of such danger some considerable part may have to be devoted to pasture or hay land, which temporary floods do not so much damage. Lands of that kind are of less market value than if capable of all farm uses.

Much testimony is devoted to the real occasion of this water on appellant’s land. Appellant’s evidence tends to show that the main ditch is not deep enough or wide enough, and the banks are not high enough to confine the waters in extreme wet times, and that there is a break in the banks above appellant’s lands where the water flows through in large quantities and down a natural depression upon his premises. Appellees’ evidence tends to show that the condition of appellant’s lands complained of is due to many causes: From the waters setting back from Creen Biver in the main ditch, and failure of traps on appellant’s tile drains to check the intake because they were permitted to get out of repair; that the banks of the ditch are often getting out of repair by reason of work of muskrats and other causes, and waters break through at various places. Appellees also claim that it is impossible that the water comes from an overflow at the north, as claimed by appellant. Their witnesses also testify to what is common knowledge of people living in this part of Illinois, that the summer of 1915, which is used as the most striking example of damage from floods, was an extremely wet season and that it was no uncommon occurrence that lands sufficiently drained for ordinary seasons were flooded because of the incapacity of the. artificial drainage to meet the unusual demand. It is not clear just what was the occasion of damage to appellant’s lands. His counsel argue, when their attention is turned to the statute of limitations and the defense of laches, that he did not know until a short time before making his demand how the trouble originated or how it could be remedied. This supports the presumption raised by other testimony that those questions are quite doubtful.

The drainage ditch cannot be reduced to a lower level than Green Eiver, its outlet. Appellees have no control over that river. It was dredged a few years ago and their drain washed out and deepened in consequence thereof and was substantially improved, but the bottom of Green Eiver, as well as of appellees’ main ditch, is sandy. The river filled up again to about its old level and conditions now are about the same as before the dredging. Appellant introduced the testimony of a civil engineer that the part of the ditch in question was not wide enough or deep enough, and he recommended a scheme for deepening and widening it. He admitted that it could not be permanently deepened if there was a sand bottom, and said that the dykes formed by the earth thrown up at the sides of the ditch were necessary factors in controlling the overflow; that if the ditch were widened and new dykes constructed they would not for sometime be as strong as the present dykes that have healed and hardened with age and the growth of vegetation and trees. He recommended that the dyke on appellant’s side of the ditch stand and the dredging be done entirely on the other side. It seems clear that this would imperil that landowner. Appellees called witnesses, some educated as civil engineers and others only experienced in matters of drainage, who testified that in their opinion, everything considered, the present ditch was capable of doing as effective work as the proposed enlarged ditch would do; that it could not be deepened because of the sand bottom and the level of Green Eiver; that the banks were solid and could easily be kept in repair, while new banks would require much time to get in firm condition. It also appeared that the expense of the proposed enlargement would be about $12,000.

It would unduly extend this opinion to discuss in detail the conflicting evidence as to the feasibility of enlarging the ditch as demanded by appellant. It was a question of fact to be decided by the trial court after seeing the witnesses and hearing them testify. Appellees aré charged with a duty to furnish a. sufficient channel, if it can reasonably be done. They are not required to expend large sums of money on some scheme of very doubtful benefit. The court in this proceeding was not authorized to compel a costly improvement that the evidence shows was an experiment quite as likely to result in no benefit as otherwise.

As we read the evidence it shows that the part of the ditch in question is not now sufficient to perfectly answer the purpose for which it is used; that appellant’s land has been damaged by overflow of water that could have been prevented by an ideal ditch; that it is impossible to construct an ideal ditch that will protect appellant’s lands and other lands similarly situated because of the high level of the Green Eiver bottom and of the sand subsoil under appellees’ ditch; that whether the ditch remains at its present width, or is increased to a greater width, there will troubles arise from time to time from breaking of the banks in high water, either from above or backing up from below, and that such troubles will have to be constantly guarded by the drainage commissioners and the owners of lands subject to overflow; that the change demanded by appellant is in the nature of an experiment of very doubtful utility and therefore that appellees were justified in refusing to make it, and much less would the court have been authorized in this mandamus proceeding to compel it.

Appellant urges that casting water upon one’s premises is a taking or damaging of property, and, if -without compensation, is in violation of our constitution, citing cases where properties have been so wrongfully damaged, and says that the water complained of here is not from surface drainage of the 7,000 acres of land within the district, but comes from other lands. We do not see much application of this argument to the facts of this case. As before said, we suppose it is all a matter of surface drainage and not a question of disposing of waters that come from subterranean lakes and streams. Owners of lower lands are subject without redress to damage from surface drainage of higher lands owned by others, even though waters are precipitated upon the lower lands by artificial drainage that would otherwise evaporate or seep through the soil. This principle was established in the case of Peck v. Herrington, 109 Ill. 611, and has been repeatedly reaffirmed in later Illinois cases citing that case.

The court, at the instance of appellant, held as law as follows except by the insertion of the phrase, “So far as practicable,” which in the following statement we have inclosed with brackets, that: “It is the duty of drainage commissioners to determine upon a system of drainage which shall provide main outlets of ample capacity for the waters of the district, having in view the future contingencies as well as the present,” and “to keep the ditches of the district in repair,” and: “If it shall be found that by reason of error in the location or construction of the ditches, or any of them, or from any other causes, the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, it is the duty of the commissioners to use the corporate funds of the district to carry out the original purpose to the end that all the lands so far as practicable shall receive their proper and equal benefits as contemplated when the lands were classified.” That if when defendants’ district was first established its outlet was of sufficient capacity for the then demand, and afterwards ditches of great length and capacity of other drainage districts were permitted to empty into defendants’ ditch and thereby burden it beyond its capacity, it would be the duty of defendant commissioners “to correct said insufficiency [as far as practicable] and furnish an outlet or outlets of sufficient capacity for the increased volume of water carried into it”; that “if the demands upon the outlet of a drainage district continue to grow and its relative capacity continues to diminish, the obligation of the commissioners to furnish an outlet of sufficient capacity correspondingly continues ’ ’; that if the outlet was originally of ample capacity, still, if the demands upon it either because of other lands being-drained into it by other drainage ditches, or by more minute drainage into existing ditches, as for instance by more extensive use of tile or additional laterals, so increased as that it becomes insufficient, the duty to furnish an outlet of ample capacity continues and requires the commissioners to improve such ditch so as to fulfil that duty. [So far as practicable.]

On the question of the statute of limitations and laches, the court refused to hold for appellant that a cause of action to petition for mandamus did not accrue until a demand had been made upon respondents to perform the duty which is the object of the mandamus suit, and that the petitioner was not required to make such demand until he had notice of the facts upon which this duty is based, and that he has in law five years within which to make a demand after notice of the default, or that he has a reasonable time within which to make a demand after he has notice of the conditions which he seeks to have remedied through his mandamus suit, and substituted the proposition that ‘ ‘ Demand must be made within a reasonable time after the condition complained of arises, and suit brought within five years after such demand.” The court held appellant’s propositions that if the outlet in question was gradually becoming insufficient and the petitioner and respondents did not know the cause, but were reasonably diligent in seeking to find the cause, but failed to do so, then so long- as this was the fact the statute of limitations would not run against this mandamus suit; that “If the alleged insufficiency of the outlet is due to a failure to keep the same in repair, the statute of limitations is not a bar to this action”; that “It is not a good defense to this petition that other lands in the district are sufficiently drained and will not be benefited by the improvement sought by petitioner”; that the defendant district “has no legal right to collect waters from lands miles away and convey them in artificial channels and spill them in large quantities upon petitioner’s lands out of the natural course of their drainage.”

The court held the law fixing appellees’ duty as claimed by appellant with the exception of holding that appellees were only required to act “so far as practicable.” Appellant argues that the question of practicability does not enter into the case; for instance, that the court should not have concerned itself with the question of cost; that there was an imperative duty on the defendant commissioners regardless of feasibility, practicability, or costs. We do not take this view of the law. The commissioners certainly could not have assessed the lands of the district for a greater sum than the entire benefit to the district because it could assess no landowner in excess of the benefits to his lands. (People v. Chicago & I. Traction Co., 267 Ill. 510; Drainage District No. One v. Dowd, 132 Ill. App. 499, 506.) We have no occasion to determine here the law as to appellees’ duties as held .by the court other than as just stated, but we think on the authority of Latham v. Holland, 133 Ill. App. 144; Peotone & M. U. Drain. Dist. v. Adams, 163 Ill. 428; People v. Henry, 236 Ill. 124, the holding was correct on that question, as well as to the propositions asked by appellant as the one to which he objects.

We are of the opinion also that the court correctly held the law on the question of the statute of limitations and laches (Meents v. Reynolds, 62 Ill. App. 17, 23) where this court said, citing authorities: “There is as much need for the application of the statute of repose in this class of cases as in others.” These holdings of law do not enable ns to determine on which ground the court dismissed the petition. We think the record fairly shows that the present condition complained of is not substantially different from what it was in 1899 when appellant purchased the land. If the ditch is obviously too small, it was then so, and if it is reasonably certain it should be remedied in the way petitioner demands, it should have been then so remedied ; and if the defendant did not know of the trouble more than five years before beginning this action, he should have known of it if it was certain and obvious, as he now claims; and if the court adopted his view of the damage, its cause and its remedy, he might well have held him barred by the statute of limitations or laches. If, on the other hand, the court took the view of the facts that we have hereinbefore expressed, the petition was properly dismissed without regard to the question of laches.

It is settled, oft-repeated law that mandamus lies only where there is a clear legal right to have an act performed; an act that it is the defendant’s duty to perform. It does not lie in a doubtful case. The relator must show a clear legal right to have the thing sought by it done, and in the manner asked. (Swigert v. County of Hamilton, 130 Ill. 538, 549; Chicago & E. I. R. Co. v. People, 222 Ill. 396; McGann v. People, 194 Ill. 526.) We find no error in the record, therefore the judgment is affirmed.

Affirmed.


text:
    Fred Pierce, Appellee, v. Village of North Utica, Appellant.
    Gen. No. 6,294.
    (Not to he reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 158

      —when power to make contract for nursing. A village has the power to make a valid contract with one to act as attendant upon a smallpox patient and to make his quarantine effective.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldeedge, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Fred Pierce, plaintiff, against Village of North Utica, defendant, on a contract for services. From a judgment for plaintiff, defendant appeals.
    The defendant contracted to pay the plaintiff three dollars a day to take charge of one afflicted with smallpox, who was confined in a house in the village.
    The house was quarantined and a police officer brought food to plaintiff and the patient. The plaintiff took charge of the food and remained in the house, making sure of the desired end that no one should be permitted to come in contact with the sick man.
    Melville W. Clark, for appellant.
    W. A. Panneck, for appellee.

      See Illinois Notes Digest, Voli. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Henry G. Heren, Appellee, v. Illinois Central Railroad Company and Peoria & Pekin Union Railway Company, Appellants.
    Gen. No. 6,298.
    (Not to The reported in full.)
    Abstract of the Decisionf
    Master and servant, § 683

      —when evidence insufficient in action by railroad employee for personal injuries. In an action by a section man for injuries sustained by being struck by a locomotive in a switch yard, where he testified that as he was crossing a track seven feet in front of a standing engine it suddenly started without warning and ran into him, and the engineer, fireman and head brakeman, all on the engine, testified that the plaintiff attempted to cross the track, without looking, thirty-five feet in front of the engine, which was moving six to eight miles an hour, and that the bell was ringing and whistle was blown, a verdict for the plaintiff held to be so manifestly against the weight of the evidence as to require a reversal.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde _ E. Stone, Judge, presiding. Heard in this court at the April term,1 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Henry G-. Heren, plaintiff, against the Illinois Central Railroad Company and the Peoria & Peldn Union Railway Company, defendants, for personal injuries sustained by being struck by a locomotive. From a judgment for plaintiff, defendants appeal.
    Stevens, Miller & Elliott, for appellants; John GL Deennan, of counsel.
    Weil & Bartley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Finley Barrell, Appellant, v. Lake Forest Water Company, Appellee.
    Gen. No. 6,302.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Claire E. Edwards, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Bill by Finley Barrell, complainant, against Lake Forest "Water Company, a public service corporation, defendant, to restrain it from shutting off the water on complainant’s premises because of his failure and refusal to pay a bill rendered for water furnished in the months of July, August and September, 1913, alleged to greatly exceed the amount he had used in that period. From an order dissolving a temporary injunction, complainant appeals.
    There was a prior hearing on a motion to dissolve this same injunction, in which the motion was allowed and appeal to this court by the water company. The order overruling the motion to dissolve was reversed and the court remanded the cause for another hearing on that motion.. The opinion was reported (not in full) in 191 Ill. App. 269.
    On reinstatement of the case, other affidavits were read covering the suggestions found in the opinion, and indicating a sharp controversy as to many material facts. The question before the trial court on this motion was whether the status quo should be maintained pending a final hearing.
    Frederick Sass and A. F. Beaubien, for appellant.
    Cooke, Pope & Pope, for appellee.

      Abstract of the Decision.
    1. Injunction, § 273

      —when temporary injunction dissolved. Whether a temporary injunction should he dissolved or remain in force depends upon the evidence produced at the hearing of a motion to dissolve such injunction.
    2. Injunction, § 269*—what is nature of hearing of motion to dissolve temporary injunction. A hearing of a motion to dissolve a temporary injunction is not a hearing on the "merits.
    3. Injunction, § 154*—lohen status quo preserved. ; Whether the status quo should he preserved by the continuance of a temporary injunction depends not only upon the probability of the case made on a hearing to dissolve such injunction, but also upon the relative injury that might be sustained by the parties, by the action of the chancellor in granting or refusing the motion contrary to what might be found on a final hearing to be the merits of the case.
    4. Injunction, § 154*—when preliminary injunction not dissolved. A preliminary injunction against the interference with the water supply of a customer of a water supply company because of the failure to pay bills will not be dissolved where a hearing on the merits is necessary under the bill, answer and affidavits in support and denial of the motion, as the continuance of the injunction would simply preserve the status quo, and the loss which the water company would sustain if the injunction was continued, would be small compared with that of the consumer if his water supply was cut off pending the hearing on the merits.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Frank Barney, Plaintiff in Error.
    Gen. No. 6,226.
    1. Intoxicating liquors, § 149

      —when evidence sufficient to connect defendant with offense. On a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held sufficient to connect defendant with the offense.
    2. Intoxicating liquors, § 130*—when presumed that beer is intoxicating. It. will be presumed that beer sold at a place where intoxicating liquors are sold is intoxicating liquor.
    3. Intoxicating liquors, § 151*—when evidence sufficient to sustain conviction for sale of. On a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held sufficient to sustain a conviction.
    4. Intoxicating liquors—when immaterial whether officer could close common hall to premises under judgment. Where a person is charged with selling liquor in anti-saloon territory at a place known as “129 North State street,” which is a building with a common hall dividing the part used by defendant and that used by another person, if the keeping and selling of liquor by the defendant is abated it is immaterial whether the officer could close the hall under the judgment.
    5. Criminal law, § 624*—what place defendant may not be sentenced to in order to worlc out fine. A convicted person may not be sentenced to a “county poor farm” to work out a fine under Hurd’s Rev. St., ch. 38, If 168b (J. & A. f 3795).
    6. Intoxicating liquors, § 259*—when judgment of conviction for selling intoxicating liquor sustained in part. On conviction of a person for selling liquor in anti-saloon territory, held that although the judgment was invalid and must be reversed in so far as it related to working out the fine, if not paid, on a “county poor farm,” it was otherwise valid and should be affirmed.
    Error to the County Court of Boone county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed in part and affirmed in part.
    Opinion filed August 10, 1916.
    William L. Pierce and Alexander J. Strom, for plaintiff in error.

      Patrick H. 0 ’Donnell, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

An information containing twenty-nine counts was filed in the court below against Frank Barney, twentyeig*ht of which charged him with selling liquor in anti-saloon territory, and the twenty-ninth with keeping a room on the east side of North State street, in the City of Belvidere, generally known as No. 129 North State street, which was a place of public resort where intoxi- ‘ eating liquors were then and there sold, in violation of the act concerning anti-saloon territory, and which place was therefore a common nuisance. He was found guilty on the first eight counts and on the twenty-ninth count of said information, and was sentenced to fine and imprisonment under each count, and there was a judgment abating the nuisance under the twenty-ninth count. Barney prosecutes this writ of error to review said judgment.

Barney occupied the second floor of a place known as No. 129 North State street. The second story contained two apartments opposite each other, with a hall in the middle, and there was access to the hall from the ground by stairways both in the front and in the rear. It seems that Barney lived there and conducted an ice business in the city. Many witnesses went up either the front or the back way and went into this hall, and they were there met by Barney or some other person from his rooms and asked what they wanted, and they were sold beer and whisky and the same was usually, but not always, brought out and delivered to them in the hall, and this was in a remote part of the City of Belvidere, and it was at that time anti-saloon territory. It is contended that most of the witnesses used the word “Barney” only, and did not say “Frank Barney,” and may therefore have meant some other person than the defendant. It was proved by one or more witnesses that this was the place of business of Frank Barney, and that Frank Barney was in that place and in the adjoining hall. Thereafter many witnesses spoke of him as Barney. There was no suggestion that any other man of that name except Frank Barney was involved in the inquiry. We have no doubt that the jury correctly understood the witnesses to refer to the defendant, Frank Barney. It is contended that many of the sales were proven to have been of beer, without any statement that it was lager beer or a malt liquor. It was held in Hall v. People, 134 Ill. App. 559, that the word “beer” when employed in connection with sales in a place where intoxicating liquors are usually sold means an intoxicating drink, and that is based upon Myers v. State, 93 Ind. 251. See also, Welsh v. State (Ind.), 9 L. R. A. 664. There was proof of numerous sales of whiskey in this place, and at least at eight different times, and under the rule just cited it will be presumed that the beer was also intoxicating. There were proofs not only of sale and delivery from Barney’s room and in that hall of beer and whisky by Barney himself, but there was also proof of sales by Miss Stover, Miss Ballard and Miss Walls in Barney’s absence, and it was insisted that as this was not a regular saloon there could be no presumption that these women were his agents or servants, or that he was bound by their sales. There was proof of sales by at least two of these women and delivery of liquor by them when Barney was there, and we do not doubt that they were sufficiently shown to be persons for whose acts he was responsible. It may be doubted whether, under the evidence, this was not really a saloon. In the room first reached from the hall were two large ice chests and beer eases piled about the wall,- and from that room bottles of beer and bottles of whisky were brought whenever called for, and some were sold and delivered in that room, and it possessed many of the qualities of an ordinary saloon, and was called by several witnesses Barney’s place of business. There were enough sales of whisky and beer proven to have been made in that hall and in Barney’s room to justify a conviction under each of the counts under which Barney was convicted, and of numerous other sales of whisky and beer, and the verdict is amply sustained by the evidence. It is insisted that the hall could not be abated under the last count because not described therein, and also because the people living on the other side of the building on that story were entitled to the joint use thereof. If the keeping and selling of whisky and beer within Barney’s rooms, which are strictly and unquestionably 129 North State street, is abated, there is no danger that any beer or whisky will be sold or delivered in the adjacent hall, and the question whether an officer could close the hall under this judgment is immaterial.

In the judgment it was also provided that if defendant did not pay the fine and costs thereon after the expiration of his sentence of imprisonment, he “be required to work out said fine at the county poor farm, situated in the County of Boone, in said State, at the rate of $1.50 per day for each day’s work, pursuant to the statute in such case made and provided.” Paragraph 168b of the Criminal Code, Hurd’s Rev. St. 1913, page 839 (J. & A. ft 3795), provides that any person convicted of petit larceny or any misdemeanor punishable under the laws of this State in whole or in part by fine may be required to work out such fine and all costs in the workhouse of the city, town or county, or in the streets and alleys of any city or town, or on the public roads of the county, under the proper person in charge of such workhouse, streets, alleys or public roads, at the rate of $1.50 per day for each day’s work. The next section contains directions for the keeper of a workhouse, street commissioner, city marshal, supervisor of roads, or person in whose keeping such convicted person shall be placed. The fourth paragraph of section 25 of chapter 34 of the Revised Statutes relating to counties (Cal. Ill. St. Supp. 1916, ft 2769) gives the county hoards of the several counties power to cause to be provided a suitable workhouse in which persons convicted of offenses punishable by imprisonment in the county jail may be confined and employed, and to make rules and regulations for the management thereof. The court therefore had power to sentence this defendant to work out his fine (if the same was not paid) in a city workhouse, a town workhouse, a county workhouse, or on the streets or alleys or on public roads, under a proper person in charge thereof. We are of opinion that this does not authorize sentencing the defendant to work out his fine on the county poor farm, which, in and of itself, is not a building nor a place named in the statute. If in Boone county the county board had established a county workhouse at the poor farm, this defendant could have been sentenced to work out his fine in that workhouse; but then it should have been designated as the county workhouse, and would mean to work out his fine in or about the building designated as the county workhouse, and not to work it out upon the farm. The Legislature could have designated the county poor farm as a place where such a fine could be worked out, but did not do so. If this judgment had sentenced him to work out the fine in the county workhouse, it would have been assumed that there was such a place in the county, and no controversy on that subject would arise unless and until the sheriff was unable to deliver him at such a workhouse, because there was none established by law. In our opinion that part of the judgment which relates to the working out of the fine is invalid and must be reversed, but that portion of the judgment can be reversed without in any way affecting the validity of the rest of the judgment, under each count of which defendant stands convicted.

The judgment is therefore reversed so far as it provides for working out the fine on the county poor farm, and in all other respects it is affirmed.

Reversed in part and affirmed in part.


text:
    The People of the State of Illinois, Defendant in Error, v. George P. Powers, Plaintiff in Error.
    Gen. No. 6,227.
    1. Appeal and ebbob, § 963

      —how record, 'may not he impeached. The record of the trial court imparts verity and may not be impeached by affidavits on appeal.
    2. Appeal and ebbob, § 930*—when record may he amended. Where a record filed is incorrect, or omits necessary matter supposed to have occurred in the trial court, the record can only be corrected by application to the court below in term time, and the trial court has jurisdiction to hear and determine the matter at a later term, if there exists anything to amend the record by.
    3. Appeal and ebbob, § 1345*—when presumed that hill of exceptions presented to trial judge before expiration of judgment term. It will be presumed that a bill of exceptions signed by a trial judge after the expiration of the judgment term was presented to him before the expiration of such term, where there is nothing in the record on appeal to show when it was presented to him and he did not follow the customary practice of indorsing upon the bill the fact and date of its presentation to him for signature.
    4. Appeal and ebbob, § 831*—when hill of exceptions may he presented to trial judge. A hill of exceptions may be presented to the trial judge at any time during the term at which the judgment was rendered without any previous order permitting the same to be so presented and filed.
    5. Appeal and ebbob, § 839*—when right to file hill of exceptions expires. If a bill of exceptions is not presented during the term and no order is granted fixing the time for its presentation beyond the term, the right to file such a bill of exceptions expires with the term.

      6. Appeal and error, § 846

      —when judge may receive and sign dill of exceptions after term. Where a bill of exceptions is not presented within the term, the judge may not thereafter receive and sign such a bill except by consent of parties, and the order of the court, by such consent, in term time extending the time.
    7. Intoxicating liquors, § 151*—when evidence insufficient to show that defendant Jceeper of place where liquors sold. On a prosecution for the sale of intoxicating liquor, where it appeared that defendant had sold the premises in which it was alleged that the liquor was sold to his wife, and that the premises had been rented to another person to be used for the sale of soft drinks, but that defendant had a desk in the front part of a room on the premises, evidence held insufficient to establish that defendant was the keeper of a place in which intoxicating liquors were sold, so as to authorize its abatement as a nuisance.
    8. Criminal law, § 594*—when judgment reversed as a whole. A judgment of conviction for selling intoxicating liquor in anti-saloon territory under one count and of being the keeper of a place which is a nuisance under another count must be reversed as a whole, where the defendant is not guilty under the latter count.
    Error to the County Court of Boone county; the Hon. William C. DeWolf, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    William L. Pierce and Alexander J. Strom, for plaintiff in error.
    Patrick H. O’Donnell, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and sect/on number.

   Mr. Justice Dibell

delivered the opinion of the court.

George P. Powers was convicted under the first count of an information charging him with the sale of intoxicating liquor in violation of the anti-saloon territory act (J. & A. 4637 et seq.), and under the eighth count charging him with being a keeper of a place which was a nuisance under the same act. He was sentenced to imprisonment and a fine under each count and there was a judgment for the abatement of the alleged nuisance. He has sued out this writ of error to review said judgment.

In this court the State’s Attorney entered a motion to strike the bill of exceptions from the record, and accompanied said motion by a supplemental record, duly certified, showing the order for the adjournment of the term at which said conviction was had in the court below. We took that motion with the case. Defendant in error filed affidavits setting up his version of the facts in the court below concerning the presentation and signing of said bill of exceptions. The State’s Attorney moved to strike said affidavits from the files and we took that motion with the case. The State’s Attorney then filed counter-affidavits tending to show an entirely different state of facts concerning the presentation and signing of said bill of éxceptions in the court below. We have, therefore, to determine: (1) Whether the affidavits shall or shall not be considered here; and (2) whether the bill of exceptions shall be stricken from the files.

By many decisions it has been settled that in a reviewing tribunal in this State the record of the court below imports verity and cannot be contradicted by affidavits, nor can any deficiency therein be supplied by affidavits filed in such reviewing court. If the record filed is incorrect, or omits necessary matter supposed to have occurred in the court below, the record can only be corrected by an application to the court below in term time, and the court below has jurisdiction to hear and determine the matter at a later term, if there exists anything in the record to amend by. These rules are stated and applied Wilder v. House, 40 Ill. 92; People v. Jameson, 40 Ill. 93; Herrington v. McCollum, 73 Ill. 476; Roche v. Beldam, 119 Ill. 320; Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288. The reason for these rules is thus stated in Wisconsin Cent. R. Co. v. Wieczorek, supra: “The judgment of courts of review must always he formed upon the record, and from that alone. If they should assume to cure mistakes or omissions of the parties or counsel in the court below, by supplying matters omitted, inadvertently or otherwise, from the record, they might in like manner change the record in other respects, to the detriment of parties litigant. To do so would introduce the greatest uncertainty and confusion, be the exercise of a power with which they are not vested, and destroy the security and certainty which should inhere in judicial proceedings. ’ ’ It follows that the affidavits filed by the plaintiff in error, and also those filed by the State’s Attorney must be stricken from the files. But this does not include the supplemental record filed by the State’s Attorney, which we permit to stand.

The record is certified to contain all the orders of record in the court below in the cause in question, and the supplemental record shows when the term ended. It therefore appears from the record that the judgment in this cause was entered on December 6, 1915; that no application for leave to present a bill of exceptions or to fix a time within which a bill of exceptions might be presented was ever made to the court in this cause; that the term adjourned on December 7, 1915, and that the bill of exceptions was approved by the State’s Attorney under date of December 9th, and was signed by the judge under date of December 9th, and was filed by the clerk on December 9, 1915; and the statute shows that the next term of said County Court began on the second Monday of December, 1915, which was December 13th. This bill of exceptions was therefore signed and filed in vacation. It is well settled that a bill of exceptions may be presented to the trial judge at any time during the term at which the judgment was rendered without any previous order permitting the same to be so presented or filed; but if it is not presented during the term and no order is granted fixing the time for its presentation beyond the term, the right to present a bill of • exceptions expires with the term, and if not presented within the term the judge may not thereafter receive and sign any bill of exceptions except by consent of the parties, and the order of the court, by such consent, in term time extending the time. In Underwood v. Hossack, 40 Ill. 98, it was held that where a trial judge had signed a bill of exceptions, the court of review would presume that he would not have done so unless it had been presented to him in proper time, and that the mere fact that it was not filed in proper time does not rebut that presumption. This was again held in Goodrich, v. Cook, 81 Ill. 41, and in Village of Hyde Park v. Dunham, 85 Ill. 569. Underwood v. Hossack, supra, is cited with approval in Magill v. Brown, 98 Ill. 235; Hawes v. People, 129 Ill. 123; and in Olds v. North Chicago St. R. Co., 165 Ill. 472, where the language of Underwood v. Hossack is quoted as follows: “The judge having signed the bill of exceptions, we will presume that he would not have done so, unless it had been presented to him in proper time.” That case is also cited in Conductors’ Mut. Aid & Benefit Ass’n v. Leonard, 166 Ill. 154; Pieser v. Minkota Milling Co., 222 Ill. 139; T. E. Hill Co. v. United States Fidelity & Guaranty Co., 250 Ill. 243; and People v. Rosenwald, 266 Ill. 548; though in some of these cases Underwood v. Hossack, supra, was treated as if it had affirmatively appeared that the bill of exceptions was presented to the judge in time. The Appellate Courts of this State have followed Underwood v. Hossack in holding to the presumption that the bill of exceptions was presented in apt time because the trial judge signed it. The fourth district held this in Morrison v. People, 52 Ill. App. 482; the first district in Banker v. Miller, 148 Ill. App. 182; and Mangold v. King, 184 Ill. App. 50; and this court in Yunker v. Marshall, 65 Ill. App. 667. We have not found any case where the principle announced in Underwood v. Hossack, supra, has been overruled. We therefore consider it decisive in this case, and we therefore presume that this bill of exceptions was presented to the trial judge before the end of the judgment term, from the fact that he afterwards signed it, there being in the record nothing to show when it was presented to the trial judge, and he not having followed the common and approved practice of indorsing upon the bill the fact and date of its presentation to him for signature. The motion to strike the bill of exceptions from the files is therefore denied.

The proofs for the People showed that the place of business here involved, No. 423 South State street in the City of Belvidere, was formerly owned and operated as a saloon by Powers, and had a sign in front with the name of Powers upon it; that that locality became anti-saloon territory on May 7, 1914, and so remained up to the time of the filing of the information in this cause, which'seems to have been October 27 or 28, 1915. Ettner, a patrolman, testified that he had seen Powers open his place of business in the mornings and close it in the evenings in May, June and July, and had seen Powers go in and take off his coat and hat and walk around there. Avery, a detective,, testified that in his presence on December 22 or 23, 1914, Powers sold Youngs, another detective, a bottle of liquid, a part of which was afterwards analyzed and found to contain ninety-three per cent, alcohol. Avery also testified that on December 23, 1914, he bought a glass of cider of Powers at that place which he considered hard cider and an intoxicating liquor, although he drank it and it did not intoxicate him to the slightest extent. Peterson testified that on September 17, 1915, he bought and paid for lager beer at that place from one Sharp. Moore, a detective, testified that he and Behling, another detective, obtained whisky from Sharp at that place on October 1, 1915, and that later that day Behling sent one Blank into this place on that business and he afterwards came out and delivered to Behling a pint of whisky. Behling testified to the same facts. He lived in Bloomington, and testified that he reached Belvidere on September 22, 1915, and left it on or about October 1,1915, and that he saw Powers in that place of business once selling a cigar. Blank testified to the occasion of his buying a bottle and taking it outside to Moore, the detective. Johansen, a policeman, testified that he had seen Powers around that place during the year 1915 quite often, and practically every day, unless he was out of town, and he had seen Powers back of his desk or walking back and forth, and had seen him take off his coat and hat and walk back of the counter or bar, and saw him there, as a rule, from seven to six; and that on a certain Saturday in 1915 he counted the number of persons going in from 7:00 a. m. until after ten o’clock at night and counted 367 persons. He had seen probably 200 to 250 people going in on other days, and this occurred for about a year. On cross-examination he said that probably double that number had gone into a certain grocery store that came under his observation during one day. The chief of police said he had seen from 50 to 100 people per day going into that place between May 7, 1914, and October 28, 1915. The defense proved that at the time this became anti-saloon territory Powers owned the building, which was a two-story brick; that the upstairs part was unoccupied; that immediately upon its becoming anti-saloon territory he leased the premises to one Clark for a soft drink parlor, or a place where ice cream and soft drinks and cigars were sold, at a rental of $35 per month, and that he received that rent and had no connection with the business carried on in that room back of the screen, and that he never sold any intoxicating liquor there or saw any sold or knew of any being sold after he leased the place to Clark. He testified that in the front of the building between the screen which had led to the former saloon and the front door, he had a desk and a safe and one or more chairs, and that he kept that by an arrangement with Clark as his private office. Clark had been a bartender for him when he kept the saloon. Sharp and another man worked for Clark after the latter became tenant, and Powers testified they had never worked for him. Powers testified that •his principal business was the management of two race horses; that in the fore part of the season of 1915 he was training these horses at the fair grounds at Belvidere, a mile and a half distant from this office, and that he went daily to the fair ground and spent the day there except Sundays; that he kept in his office certain articles which he used in connection with the training of his horses and each morning he went there early and opened the front door, to which he had a key, and took out these articles and then left the building and went to the fair grounds, and returned again at night and left the articles in the building; and that he was not in the habit of being in the ice cream and soft drink parlor run by Clark. He testified also that he transacted certain business at that place in reference to a farm which he managed. Powers testified that in July he went with his horses to Iowa and returned to Belvidere for the fair week there the first part of September, and then went to Wisconsin and Minnesota with his horses and did not return until about the middle of October, and that he was not in Belvidere, nor within six hundred miles of there, at the time when the two witnesses above referred to testified to seeing him in that place of business. He was corroborated as to his action in the horse business and to the time he put in at the fair grounds in Belvidere, and as to the times of his absence in Iowa, Wis-cousin and Minnesota by various witnesses. He also testified that on November 24, 1914, he conveyed these premises to his wife as security for a loan she made to him of $6,000, and that the premises were then worth $8,000, and that he thereafter continued to collect the rent for her and to cause the premises to be kept in repair and bills for light and heat to be paid; that on January 19, 1915, a written lease to Clark was executed, which he signed as agent for his wife, and under which Clark thereafter continued to pay rent at $35 per month. The lease contained provisions that no intoxicating liquors should be sold there during the term of the lease, and that the tenant should be entitled to an extension of the lease unless said town became saloon territory before the 1st of May, 1916, in which ease there should be no extension. Except one matter to be hereafter stated, there is no evidence that the oral lease to Clark, the deed from Powers to his wife, ' and the written lease by Powers as agent of his wife to Clark were not all genuine, bona fide transactions, and the rent paid from month to month as testified to by Powers, except the fact that his name was on the front of the building, that he had his office in the front between the door and partition, or screen; that he was seen there from time to time, and that two witnesses say he sold them a bottle of whisky in December, 1914; and one of these witnesses says that he bought of Powers a bottle of hard cider at about the same time. The proof was that the cigar case operated by the tenant stood between the front door and the partition, and that Powers sometimes sold a cigar therefrom when no one else was there to wait on a customer; but Powers testified that he had no authority to do that. There was no proof how many customers there would be likely to be on Saturday or any other day of the week in a place strictly devoted to ice cream, soft drinks and cigars, and the jury were not warranted in inferring from anything in the evidence that the number of persons attending that place was evidence that liquor was sold there. Certainly the officer who counted the men going in all day could have taken the names of various people who went in and they could haye been called as witnesses and it could have been ascertained from them whether they drank, or saw others drink, intoxicating liquor in that place, and not have left the matter to the conjecture of the jury; or, if in such a place as Belvidere, no shop of that kind which did not sell intoxicating liquor had any such patronage, that fact also could have been shown. It may be that under this evidence a conviction under the first count could be sustained on the ground that the jury and the trial judge believed the witnesses who testified that Powers sold a bottle of whisky in December, 1914; but it seems to us that the foregoing testimony does not establish that Powers was the keeper of the place and does not authorize a judgment shutting up and abating the place. The proof is all one way, that Clark is the tenant and that Sharp and another man are his clerks, and that Clark professes to run a place where he sells soft drinks, ice cream and cigars, and we feel that on this proof his business should not be destroyed by a judgment to which Clark is not a party. It is true that we held in Grom v. People, 135 Ill. App. 453, and Gaul v. People, 136 Ill. App. 445, that we could affirm a conviction under one count of such an indictment and reverse the conviction under another count, but the Supreme Court reversed the latter judgment in People v. Gaul, 233 Ill. 630, and held that judgments under such an information must be affirmed or reversed as to all counts. If the conviction under the last count can be sustained, it can only be because of certain answers made by Powers on recross-examination just at the close of the evidence. He was asked if on or about April 30, 1915, he said to the mayor of the city: “I own the building where I am and I don’t want it closed. I want to run it so I can sell cigars and soft drinks and I will not sell any liquor in violation of the law. If you close it up, I will get no revenue from it, but by selling cigars and soft drinks I. can make $30 or $40 a month in it”; and he answered that he had a conversation something to that effect. He was then asked if he had another talk with the mayor on or about June 6, 1915, in which he said: “That you would lock up the upstairs of your building; that no liquor had been sold nor would there be any liquor sold as long as you had charge of it; that you would lock all doors going upstairs and all doors except the front door.” He answered thus: “He asked me if they was selling liquor there and I told him they wasn’t selling nothing at all. They was just selling soft drinks.” Afterwards, he said he had a conversation something to that effect. The conversations with the mayor leading up to these statements were not given. The first one implies that he owned and was running the building. The second one, when considered with his answer, showed that he used the word ‘ ‘ they ’ ’ and not the word “ I. ” He said “they” were not selling liquor; “they’’ were selling soft drinks. When this language is considered in connection with all the other evidence in the case, we do not think it warrants the abating or closing up of a place of business which the proof shows that Clark is running under a written lease and for which he regularly pays rent, since he is not a party to this suit and has had no opportunity to defend it. As we must affirm or reverse the judgment as to both counts, it is our duty to reverse the judgment and remand the cause for further proceedings.

Reversed and remanded.


text:
    J. E. Pickens, Appellee, v. City of Kankakee, Appellant.
    Gen. No. 6,262.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 1225

      —when notice of personal injuries sufficient. The statutory notice of personal injuries filed with the city attorney and city clerk is sufficient, although it does not contain the address of the attending physician, where such physician also holds the position of city physician and there is no other physician of the same name in the city, as it must be assumed that the residence of such physician is known to the city officers and that by the exercise of reasonable diligence they could ascertain any fact for which resort to the attending physician was necessary.

      Appeal from the Circuit Court of Kankakee county; the Hon.. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by J. E. Pickens, plaintiff, against the City of Kankakee, the Kankakee Water Works and Fred Herscher, defendants, to recover for personal injuries sustained as the result of .falling into a hole in the street at night and striking his leg against a water pipe and faucet in said hole. From a judgment in favor of plaintiff for $2,000 against the City of Kankakee after dismissal before trial as to defendant Kankakee Water Works and judgment for defendant Herscher on a directed verdict, defendant city appeals.
    H. H. Whittemore, for appellant.
    C. M. Clay Buntain and T. F. Donovan, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, and Cnmnlative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

2. Evidence, § 444 —when opinions of physician partly based on subjective symptoms competent. Opinions of a physician founded in part upon subjective symptoms, the knowledge of which is derived by the physician during the treatment of the patient, are competent.

3. Evidence, § 444*—when medical witness may testify as to subjective symptoms. A medical witness is not disqualified from giving his opinion founded on subjective symptoms by the mere fact that after having treated the patient for some time he became a witness in his behalf.

4. Municipal corporations, § 1085*—when presumed to have had notice of defect in street. A city is presumed to have had notice of a hole in the street around an iron pipe and water faucet, three feet wide and from four to eighteen inches deep, so as to have had time to repair it where the hole has existed in substantially the same condition for more than two and a half months.

5. Municipal corporations, § 972*—when required to keep street in condition for pedestrians. Where a pedestrian walking upon a street in which no sidewalk had been laid was injured by falling into a hole therein soon after reaching the portion of the street where the sidewalk began, and while actually attempting to get upon the same, it was held that the city should have anticipated the use of that portion of the street by pedestrians and was therefore liable for failure to exercise reasonable care to keep it in a reasonably safe condition for such use.

6. Damages, § 115*—when verdict for personal injuries not excessive. A verdict for $2,000 in favor of a contractor for temporary injuries to his knee joint and leg, held not excessive.

7. Instructions, § 151*—when properly refused. Requested instructions covered by the main charge are properly refused.

8. Instructions, § 13*—when properly refused. Requested instructions which are involved are properly refused.