text:
    J. I. Case Threshing Machine Company, Appellant, v. E. J. Ross et al., Appellees.
    1. Waeranty—what waiver of condition. If a chattel he warranted upon condition that payment therefor first be made, such condition is waived and the warranty becomes unconditional if defects in such chattel are recognized and the obligation to repair the same assumed without insisting upon payment.
    2. Evidence—when declarations of agent competent. The declarations of an agent made while in the act of performing his work for his concern are competent against such principal especially where no evidence to dispute the authority of such agent to make such declarations is offered by the principal.
    Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. John A, Gray, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Carr, Upham & Black and Charles J. Scofield, for appellant.
    Apollos W. O’Harra, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant brought suit in the Circuit Court of Hancock county against appellees to recover upon two promissory notes. Appellees set up in defense a warranty and a breach thereof, alleged to have been made to them by appellant as to the qualities of a threshing machine sold by appellant to appellees. There was a verdict and judgment in favor of appellees and this appeal followed.

The evidence tended to show that appellees first entered into negotiations with one Abe Kauffman and one J. F. Ochsner, who assumed to represent appellant, for the purpose of selling a threshing machine; that a written order was made by appellees and delivered to said Kauffman and Ochsner for the purchase of a machine; that afterward, it turned out, that the machine so ordered could not be delivered, and a new or second order, in writing, was made for the machine involved, at Peoria, by appellees to said Kauffman and another man, both of whom assumed to act for appellant, and a purported copy of the order delivered by them to appellees who retained the same while the original order was kept by appellant; that there was a variance between the written order left with appellant'and the one delivered to appellees in this, that the copy delivered to appellee did not require interest “from date” to be paid on the notes given in payment for the machine, if said notes were paid by October 1, 1905, while the written order retained by appellant required interest to be paid upon the notes from date, at 6 per cent per annum; that except for this difference the order and copy were identical, and in terms provided for the sale of a machine by appellant to the appellees for the sum of $975 witnessed by three promissory notes for the sum of $325 each, due on October 1, of the years 1905, 1906 and 1907, which notes were secured by a chattel mortgage upon the machine; that in said contract said appellant warranted the machine sold to be of good material and with good care to do as good work under the same conditions as any made in the United States, if properly operated by competent persons, with sufficient power, etc.; that if, after trial of ten days by the purchasers, said machine failed to fulfill the warranty and written notice thereof was given to appellant, a reasonable time should be given to the company to send a competent man to remedy the difficulty, and if the machine could not be made to fulfill the warranty the same should be returned to appellant and it notified, whereupon appellant should have the option to substitute another machine which should fill the warranty, or return appellees’ notes.

Said contract further provided by its terms that “failure to fully settle on delivery as above provided or to comply with any of the conditions of the warranty on the purchasers’ part * * * should discharge the company from all liability whatever.”

It further appeared from the evidence that pursuant to the terms of the order a threshing machine was delivered by appellant to appellees who first attempted to use it in threshing about the 25th day of July, 1905; that with careful and competent management and with sufficient power properly to operate a machine of that kind it could not be made to do good work or as good work as that done by similar machines under the same circumstances; that it was tried at various times for a period of about seventeen days, and that it would not take the straw from the back of the cylinder, but the same would wrap around the cylinder and choke the machine; that said Abe Kauffman saw the machine while it was being used by appellees and spent the most of one day trying to overcome the difficulty and make the machine work properly and failed to do so; that Kauffman then said to appellees that he would send another man who could fix it; that on the 26th day of July, 1905, appellees wrote appellant stating that the machine was not doing good work, and asking that an expert be sent at once, otherwise they would be compelled to get another outfit; that to this letter no reply was received by appellees and another letter was written about August 21, 1905, by appellees to appellant stating that the machine would not do good work; that on August 24, 1905, appellant wrote appellees saying that the complaint of appellees had been received and that the same had been referred to the Des Moines branch with a request that such branch communicate with appellees “immediately with a view of assisting in overcoming the trouble;” that on August 24, 1905, W. C. Black, general agent of appellant at Peoria, wrote to appellees that he had been advised of the complaint made, and asking if they were still running the machine and saying that he had referred the matter to Mr. Herring, who would be in their neighborhood soon and that he had requested him “to go and see appellees;” that Herring did not go to see appellees until some time in September, 1905, about two or three weeks after the letter from Black was so written on August 24, and at a time when appellees were not trying to use the machine and when they had no threshing to do; that as the machine could not then be tried it could be tried later on; that appellee, Bose, on September 5, 1905, wrote appellant’s agents at Peoria that he had a job of threshing on September 12, when the machine could be tried again; that on the next day appellant wrote Bose that endeavor would be made to have Herring at the place when the threshing was to be done on the 12th of September ; that Herring did not come on the date so fixed and the job set for that date was threshed by another machine.

Other correspondence followed between the parties, but we think we have stated, in substance, enough for the purpose of this opinion, and to quote more fully from such letters would be to extend the opinion to undue proportions.

The evidence father tends to show that no attempt was made by appellant to fix the machine, except the one made by Kauffman hereinbefore spoken of; that on the 22nd day of December, 1905, appellant, by virtue of the provisions of the chattel mortgage given by appellees upon the machine, sold the machine to itself for the sum of $478.25, which it credited upon appellees’ indebtedness. The evidence further tends to show, that at a time when Kauffman was at the house of Bose asking to have the notes changed in terms to agree with the written order held by appellant, appellee Boegner said to him that if they would make the machine go he would pay for it; that he would then not have to pay interest. The evidence further tends to show the notes for the machine and the chattel mortgage were drawn by Kauffman on the • 24th day of June, 1905, and that he wrote in the notes the clause concerning interest to the effect that the notes should only draw interest if they were not paid by October 1, 1905, which was the matter he sought to correct when he visited appellees in July or August, 1905.

Appellant first insists that it was error to admit in evidence the copy of the order when offered by appellees contending that snch copy was not the best evidence and that no proper ground was laid for the introduction of secondary evidence. However much we might be disposed to agree with appellant’s version of the law, yet we do not see how the admission of the copy, under the circumstances, could have prejudiced appellant’s case. The material matter for the jury to determine from the contract was the warranty and upon this branch of the case the original contract and copy were in the same identical words. The variance as to interest could not, in any way, have influenced the jury in deciding whether or not the machine was warranted and what it was warranted to do.

Furthermore, the court, by its fourth instruction given for appellant, told the jury to disregard the alleged copy of the order and to treat the order signed by appellees as the only contract of warranty in evidence in the case. Appellants further argue in this connection that the admission of such copy in evidence was harmful to appellant, because under the contract the warranty was a conditional one and no claim could be made under it until appellees had made settlement with appellant in accordance with the terms of the order.

This claim, in our judgment, is without merit. While it may be true that one of the provisions of the contract is, that failure to settle as provided by the terms of the contract or to comply with any of its conditions would discharge appellant from all liability under it, yet the appellant was in no position to urge such provision, even if it be conceded to be a legal one, under the circumstances shown in the case. Appellant from the time of making of the first complaint recognized its obligation to put the machine in good running order. Kauffman spent the better part of a day trying to overcome the difficulty and failed. After his failure the company was bound to send some one else to remedy the defect and in a way attempted to do so. In August, nearly one month after it had notice that the machine would not work, it promised to remedy the trouble through its branch house in Des Moines, and in the same month appellant’s Peoria agent wrote appellees that if they were still using the machine he would send Herring to them to see what he could do. Herring failed to come until some time in September when there was no threshing to do and appellees after that time sought to have Herring come and see the machine on the 12th of September, in which Herring failed. After appellant, by its conduct, had recognized its obligation to put the machine in running order and had assumed to put the machine in such order, it must be held to have waived its right to insist upon a settlement before appellees could rely Ppon the warranty and a breach of the same.

Appellant next contends that it was error upon the part of the trial court to admit in evidence the testimony of appellees concerning their transactions with Kauffman and declarations made by Kauffman and one Maulick, who were alleged to represent appellant.

Kauffman was one of the men who assisted in selling the machine and who drew or prepared the notes given in payment for it and the one who spent the major part of the day trying to put it in good running order. There was no evidence, whatever, offered showing want of authority upon the part of either Kauffman or Maulick. In view of the prima facie showing made by appellees, as to the acts of these two parties in and concerning business admittedly that of appellant, and with no evidence to dispute their authority to represent appellant, we find no error in the ruling of the court in this respect.

Special complaint is made by appellant of the court’s refusal to give its eighth instruction which in effect stated that if appellees failed to return the machine to appellant, then appellant was not required to substitute another and there was no liability upon the part of appellant under the warranty. This instruction was rightfully refused for the reason that appellant had assumed to make the machine sold meet the warranty expressed in the contract of sale. Appellant had attempted to make it work and had at different times assumed to have its agents visit and examine the machine with one purpose only in view, and that was to have it fulfill the contract. Under such circumstances appellees were not bound to return the machine to appellant. Other instructions given and refused are criticised, but we do not deem it important to canvass them. As a series the instructions given stated the law with substantial accuracy and fairly toward appellant.

The merits of the case seem clearly to be with appellees.

The judgment was right and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Ramsay

license: Public Domain

text:
    S. S. Falkinberg, Appellee, v. Modern American Fraternal Order, Appellant.

      Insurance—when custom, competent upon question of default in payment of premium. If there was a custom and well-established practice prevailing among the members and officers of an insurance order by force of Which a payment made to the secretary of the local lodge at any time before or upon the tenth day of each month was treated as having been made in apt time and that members so paying were not in default, upon proof of such custom and compliance therewith the defense of default in payment was completely met.
    Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Andrews & Vause, for appellant; David L. Wright, of counsel.

      Edward C. & James W. Craig, Jr., for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

S. S. Falkinberg brought suit against the Modern American Fraternal Order in the Circuit Court of Coles county upon a beneficiary certificate issued by that order upon the fife of Clara T. Falkinberg, wife of S. S. Falkinberg. Upon trial there was a verdict returned against the order in the sum of $500 on which the court rendered judgment and the order appealed.

The only question in the case which we deem it necessary to discuss is whether or not deceased was in arrears in the payment of assessments at the time of her death and the benefit certificate rendered inoperative on that account.

The certificate was issued to said Clara T. Falkinberg, on the 27th day of June, 1906, in the sum of $500 payable to appellee upon the death of said Clara, on which certificate the insured was to pay $1.25 mortuary dues each month to the secretary of the subordinate lodge located at Mattoon, Ulinois. Said Clara T. died suddenly on the fifth day of March, 1907, and at the time of her death her dues for the month of March had not been paid. They were received by the secretary of the local lodge on March 5, after her death, but by him tendered back at once upon his learning of the death of said Clara.

There is no claim made that the dues for the month of February, 1907, and all preceding months, had not been paid, nor that the dues for the month of March, 1907, had not been received by the secretary of the local lodge on the 5th day of March, under the circumstances just stated, but the claim is made by appellant that under the rules of the order the payment should have been made promptly on or before the first day of the month and that default in payment by that date rendered the certificate nugatory. ^ Appellee insists that there was a custom and well-established practice prevailing among the members and officers of the insurance order by force of which a payment made to the secretary of the local lodge at any time before or upon the tenth day of each month was treated as having been made in apt time and that members so paying were not in default.

A careful review of the whole evidence shows that there was such a custom prevailing prior to and at the time of the death of said Clara and that she had made payments conformably to such practice.

Several witnesses who were members of the order and who paid mortuary dues under the same regulations as deceased, testified that they paid their monthly dues to the local secretary at any time before the tenth of the month and that such payments were treated the same as though paid the first of the month. Pleasant T. Ellis testified that George M. Le-Crone, supreme secretary of the Fraternal Order, said to him that it was all right to pay dues at any time up to the tenth of the month inclusive. John Wool-ridge testified in substance that at one time he was secretary of the local lodge at Mattoon and that while he was acting as such the supreme secretary of the order said to him that if payment of dues was made in time so he could include the same in his monthly report, which should be mailed to the supreme secretary on the 11th of the month, it would be all right; that he accordingly included in Ms reports all members in good standing who paid their mortuary dues up to the date when he sent Ms report on the 11th of the month; that as long as he had the report in his hands he took dues from the members and that members paid their dues between the first and tenth of the month.

Nathan Ellis, who was secretary of the local lodge at one time testified, in substance, to the same practice ; that remittances were made to the supreme secretary on the 10th of each month and that mortuary dues were received at any time up to the time he sent in Ms report, the same as though paid on the first , of the month.

George Surby, who acted as a deputy organizer to local lodges of appellant, testified that he collected mortuary dues and knew of their being paid between the first and tenth of the month. Appellee testified in substance that his wife had paid dues to the secretary of the local lodge at different times between the first and tenth of the month during the period of her membersMp.

There is nothing in the evidence wMch tends to dispute the prevalence of such custom or that tends to show that deceased had not at different times before her death paid her mortuary dues after the first day of the month and before the tenth of the month agreeably to such practice. The case, upon the facts, comes clearly within the holding made by this court in North American Accident Ins. Co. v. Whitesides, 134 Ill. App. 290, where it was held that the insurance company by uniformly accepting premiums at any time before the tenth day of the month as a compliance with the terms of the policy or certificate, waived its right to insist on payment upon the first of the month, the day named in the policy as the day of payment. That prompt payment of assessments may be waived by an insurance company, so that the failure of a member to comply strictly with a regulation requiring such prompt payment will not work a forfeiture of Ms rights under his policy, is established in a long line of authorities. Loyal Americans v. Mayer, 137 Ill. App. 574, and cases there cited.

Under the custom and practice so established by the evidence in the case at bar, payment of the mortuary dues could have been made at any time up to and including the 10th day of March, 1907. There was therefore no default in payment of dues at the time of the death of said Clara T. Falkinberg.

There is no reversible error in tMs record and the judgment is affirmed.

Affirmed.


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    Alice B. Barry, Appellee, v. Chicago, Indianapolis & St. Louis Short Line Railway Company, Appellant.

      Damages—what not competent in action for injury to real property. If a permanent injury is alleged the proper measure of damages is the depreciation in value of the land actually and immediately affected. Evidence of the loss of the rental value of a portion of such land for a particular period is incompetent.
    ' Action on the case. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    George B. Gillespie and A. M. Fitzgerald, for appellant; L. J. Hackney, Jett & Kinder and Hamlin, Gillespie & Fitzgerald, of counsel.
    Amos Miller and Lane & Cooper, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Alice B. Barry brought suit in the Circuit Court of Montgomery county against the C., I. & St. L. Short Line Railway Company to recover damages alleged to have resulted to her by reason of the railway company making a wrongful excavation. There was a verdict in favor of Barry in the sum of $300, upon which the trial court rendered judgment and the railway company appealed.

The evidence shows that appellee owned a farm of 320 acres in Montgomery county, Illinois, through which she sold a right of way of about elevén acres to appellant in 1903, upon or over which appellant constructed its railway; that some time in 1904 or 1905 appellant removed a large amount of earth from its right of way and in doing so excavated or took out, with a steam shovel, the earth, etc., up to the line of its right of way, in such a manner that some of the land of appellee caved into the excavated right of way of appellant, carrying with it, in some places, the fence which appellant had built upon the line separating its right of way from the pasture and farming lands of appellee. About three-tenth of an abre of land was lost by appellee and the fence, for a considerable distance, on each side of the right of way, fell into and down upon the right of way and was therefore rendered insufficient to turn stock.

The only error which we care to discuss relates to the action of the court in admitting evidence that had for its object the fixing of appellee’s damages. Appellee was permitted to prove, over appellant’s objection, that about- sixty acres of land adjoining such right of way, which had formerly been used by appellee as pasture land, had not been used by her for about two years prior to the time suit was brought for the reason that, by the caving in of appellee’s land, the fence was thereby rendered useless and unfit to turn live stock, by means whereof she lost the value of the rental of such pasture land for such two years.

The admission of this evidence was error. The general rule as to the measure of damages in cases like the one at bar, when the injury is permanent, is the diminution in value of the land actually and immediately affected. Schroeder v. City of Joliet, 189 Ill. 48.

If the injury be permanent so that all damages may be assessed for both past .and future injury then the depreciation in the value of the real estate affected is the measure of damages to the owner. K. & S. R. R. Co. et al. v. Horan, 131 Ill. 288; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203.

Appellee insists, however, that the loss of the use of the pasture was properly admitted in evidence as the proximate result or consequence of the act of appellant in so excavating up to the line of the right of way, on the ground that the fence would, of necessity, be rendered useless by the caving of earth.

We cannot agree with this contention. The right to insist upon appellant’s building and maintaining a fence upon the line of its right of way is expressly given by statute and appellant could have been forced to erect a fence, and maintain the same, suitable to turn stock, without regard to the configuration of the ground or the exact location of its line of right of way, and in the event that appellant neglected or refused to so maintain its fence, the appellee, upon notice to appellant, could have built the same, and have recovered from appellant double the value thereof. The right to recover for a permanent injury to the field, and a right to compel the appellant to fence the field were two distinct and independent rights. The loss to appellee of the use of the pasture was too remote and the admission of evidence upon that subject was prejudicial error.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Joseph H. Myers, Appellant, v. Edward W. Tillson, Appellee.

      Contracts—default as affecting performance. A party to a contract who is in default is in no position to insist upon performance. ^
    Action commenced before justice of the peace. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    S. H. Cummins and Masters & Masters, for appellant.
    Timothy McGrath, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant instituted suit, before a justice of the peace of Sangamon county, against appellee, upon a trial of which, judgment was rendered in favor of appellant in the sum of $125. Appellee prosecuted an appeal to the Circuit Court of said county where, upon trial had before a jury, there was a verdict in favor of appellee upon which the court rendered judgment and this appeal followed.

Appellant, a grain buyer at Croft, Illinois, entered into a contract in May, 1907, with appellee, a farmer, to buy from appellee some corn in crib at 45 cents per bushel and also appellee’s growing wheat crop at 75 cents per bushel, and his growing oat crop at 32 cents per bushel, upon delivery to appellant. Appellant claimed that the oats amounted to 1,388 bushels and that they were not delivered as they should have been under the terms of the contract and that the price of oats advanced from 32 cents per bushel to 46% cents per bushel at the time they should have been delivered and therefore he should recover the difference.

Appellee claimed that the oats which he sold to appellant under the contract were 700 bushels only instead of 1,388 bushels, the difference being what he was to retain for feed and seed and, as such feed and seed, excepted from the terms of the contract, and that appellant refused to pay for 125 bushels of wheat, which was delivered by appellee to appellant under such contract and that by reason of such refusal to pay for such wheat appellee was absolved from further performance of the contract upon his part.

The main question is whether or not appellant had refused to pay appellee for the 125 bushels of wheat which appellee claimed he had delivered to appellant under the contract, prior to the time that appellee refused to make delivery of the oats claimed by appellant. A review of the evidence as abstracted does not satisfy us that the verdict was against the manifest weight of the evidence. The conflict was sharp upon this issue and the evidence so evenly balanced that the jury would have been warranted in finding either way thereon. The claim made by appellee that he had delivered to appellant 125 bushels of wheat and that appellant had failed to pay appellee for such wheat upon delivery as provided for in the contract, prior to the time he instituted the present suit, presented a question which was purely one of fact and one which it was peculiarly within the province of the jury to determine.

There being sufficient evidence to warrant the verdict upon this score it follows that when suit was brought by appellant to recover for a failure to deliver the oats, he, himself, was in default and in no position to urge that appellee be held to performance of the contract.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


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    Clarence Dunkelbarger, Administrator, Plaintiff in Error, v. Donald McFerren, Defendant in Error.

      Automobiles—act of July 1, 1908, construed. A motorcycle is included within the language of this act which imposes certain obligations upon a person driving an automobile "or other conveyance of a similar type or kind.”
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbouqh, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded with directions.
    Opinion filed May 19, 1908.
    J. C. McClure, C. G. Taylor and G. W. Salmans, for plaintiff in error.
    J. H. Dyer and J. B. Mann, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Plaintiff in error brought suit in the Circuit Court of Vermilion county against defendant in error to recover for damages alleged to have accrued to the estate of Josiah Dunkelbarger by reason of the negligence of defendant in error in the operation of a motor cycle, which resulted in the death of said Josiah Dunkelbarger. There was a judgment in favor of- defendant, and a writ of error was prosecuted.

In the declaration it was alleged that defendant, on the 11th day of September, 1906, was possessed of and using and operating a certain vehicle or conveyance for the transportation of passengers, which said vehicle was then and there of a similar nature to an automobile and was propelled and operated by the use of gasoline and known as a motor cycle along a public street in the city of Hoopeston in said county; that while defendant was operating and using said vehicle conveying himself and another, said Josiah Dunkelbarger was passing along said street with two horses hitched to a wagon, upon which Dunkelbarger was riding, driving said horses; that while he was so driving said horses and while in the exercise of due care for his own safety he met said defendant so riding, operating and running said motor cycle so propelled by gasoline ; that it was then and there the duty, as provided by statute, of defendant, if the horses of said Josiah Dunkelbarger should appear to become frightened by the approach of said contrivance or motor vehicle, to bring the same to a full stop until said horses had passed; that as said Josiah Dunkelbarger, so driving said horses, approached said contrivance, his said horses became frightened at the puffing and popping noises made by said motor cycle; that said defendant, not regarding his duty in that behalf, when said horses appeared to be frightened at said motor cycle, failed and neglected to bring said contrivance to a full stop until said horses had passed, but continued to proceed along said street to and beyond said team of horses; that said horses became frightened at said motor cycle and ran away; that by reason thereof said Josiah Dunkelbarger was thrown from his wagon and injured, from the effects of which he died; that said Josiah Dunkelbarger left a widow and three children surviving him who were deprived of their means of support, whereby an action accrued to the plaintiff, etc.

A demurrer to such declaration was sustained by the court. Plaintiff in error elected to stand by his declaration.

Defendant in error contends that the vehicle or contrivance described in the declaration does not come within the provisions or meaning of the automobile act which went into effect on July 1, 1903, and therefore there was no duty resting upon defendant to stop his motor cycle under the averments made in the declaration.

The act of July 1, 1903, provided that it should be unlawful for any person or persons to drive, run, conduct or propel any automobile, or any other conveyance of a similar type, or kind, used for the purpose of transporting passengers or freight or any other purpose, whether propelled by steam, gasoline or electricity, in excess of 15 miles per hour, etc., and that, whenever it should appear that any horse driven by another person upon any street, road or highway, was about to become frightened by the approach of any such automobile or vehicle, it should be the duty of the person driving or conducting such automobile or vehicle to cause the same to come to a full stop until such horse had passed.

Under the declaration the main question argued by defendant in error is whether or not the motor cycle which defendant in error was operating comes within the meaning of the words “or other conveyance of a similar type .or kind,” etc., as employed in the statute.

These words as used in the statute are not of intricate or doubtful meaning, but are of general use. A motor cycle is propelled by the same power as an auto-. mobile, the use of which power causes the same loud and rapid explosion. It moves with kindred speed and when not propelled by human power, has many of the general features of an automobile; the main difference being that it runs on two wheels instead of four. If two motor cycles should be fastened and operated together side by side for the purpose of carrying passengers there would be no question that the vehicle so constructed would be of a type or kind similar to an automobile, and yet if defendant in error’s contention be correct, such contrivance ceases to be of such kind or type when separated into two distinct conveyances.

The statute in question was broad in its terms and in our judgment it would be a perversion of the plain meaning of the words of the act to say that a motor cycle, used in carrying passengers, was not similar to an automobile in either type or kind.

Defendant in error also contends that there is no averment in the declaration that the horses, which deceased was driving, became frightened by the approach of the motor cycle, or that such fright was in any way apparent to appellee while he was approaching such horses.

These criticisms are without merit. The declaration in terms alleged that the horses became frightened as deceased, while driving them, approached the motor cycle and became unmanageable while said motor cycle was passing, and in said declaration it was further alleged that defendant in error, unmindful of his duty under the statute, neglected to stop his vehicle when said horses appeared to be frightened by it.

The allegation that said horses became frightened while the motor cycle was approaching deceased and that such fright was apparent, is in effect an averment that such fright was apparent to defendant in error.

The declaration sets up a good cause of action and the demurrer thereto should have been overruled. The judgment is reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Elsina Wingo, Plaintiff in Error v. T. W. Ramsey, Defendant in Error.

      Judgments—when, of justice, not void. If the hearing of a case before a justice is set for a specific hour and his docket shows that judgment was rendered at such hour, the defendant not appearing, a reviewing court will not conclude that such justice had failed to observe the established practice of waiting an hour before proceeding with the hearing.
    Action commenced before justice of the peace. Error to the Circuit Court of Schuyler county; the Hon. Gut A. Williams, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Glass & Bottenberg, for plaintiff in error.
    D. L. Mourning, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Elsina Wingo brought suit against T. W. Bamsey before H. T. Pemberton, a justice of the peace of Schuyler county, to recover upon a judgment that had been previously rendered in favor of said Wingo and against Bamsey before one W. H. Hodge, also a justice of the peace of said county, who was succeeded in office by said Pemberton. Such proceedings were had before said Pemberton as justice of the peace that an appeal was taken to the Circuit Court of said county where, upon trial being had before the court without a jury, judgment was rendered in favor of Bamsey, and against Wingo for costs of suit. Wingo sued out a writ of error.

Upon the trial it appeared that the basis of Wingo’s right of recovery was a judgment alleged to have been had in Wingo’s favor and against Bamsey on March 19,1900, before’said W. H. Hodge, for the sum of $35 and costs of suit. The docket which had been kept by Hodge as justice of the peace and which had come into the hands of Pemberton as his successor showed that summons was issued in said cause on March 12, 1900, returnable on the 19th day of that month, at nine o’clock a. m.; that on that date at nine o’clock a. m. the defendant failed to appear and show cause why judgment should not be rendered; that therefore the suit being for house rent in the sum of $35 etc. it was considered and adjudged that said plaintiff (Wingo) have and recover of the said defendant (Ramsey) the sum of $35 for her demand and costs, etc.

Defendant in error, Ramsey, contended in the court below, on trial of this cause, and makes the same contention here, that the judgment which said Hodge, justice of the peace, rendered on said March 19,1900, was inoperative and void because the docket, as he claims, shows affirmatively upon its face that the justice of the peace entered such judgment at nine o’clock a. m. without waiting at all for defendant to appear, that under the authority of the First National Bank of Chicago v. Beresford, 78 Ill. 391, it was incumbent upon the court to hold the case open for one full hour for the defendant to appear.

In determining this matter it is unnecessary to review this well-established practice in justice courts by force of which no action can be taken within the hour, for the reason that the record of the judgment involved in no way, in our judgment, runs counter to such practice.

Defendant in error argues that because the record of the judgment states that at “nine o’clock a. m. defendant failed to appear,” etc. we must conclude as a matter of law the justice of the peace did not wait until ten o’clock a. m.

The weakness of the contention so made by defendant in error lies in the fact that there is nothing in the record which shows affirmatively that the justice of the peace did not wait the full hour. If he had so waited he would still have entered his judgment conformably to the return hour as established by the sum-mans. Since the words “nine o’clock” as found in the summons have been and are construed to mean a full hour after or up to ten o’clock, such expression as found in the judgment may be safely construed to mean the same thing. Furthermore in the absence of an affirmative showing that the justice of the peace did not wait the full hour for defendant to appear, it will be presumed that he did his duty in that respect. First National Bank v. Beresford, 78 Ill. 391-394.

Defendant in error further contends that the justice of the peace, Hodge, had no power to enter the judgment on March 19, 1900, upon the statement of evidence made in said record and insists that the trial court was in error in refusing to hold his fourth proposition of law submitted upon that point. This contention seems to be wholly without merit, but even if it possessed merit, we would refuse to review it, since such fourth proposition as tendered has not been abstracted.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Sadie L. Enright, Appellant, v. Charles R. Current, Appellee.

      Instbuctions—when peremptory should he given. If there is no evidence, or hut a scintilla of evidence tending to prove the material averments of the declaration, the jury should he directed to return a verdict for- the defendant. If, however, there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eyes of the law, find that all the material averments of the declaration had been proved, then the case should be submitted to the jury.
    Trespass on the case. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Cbatg, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.

      Jones & Bookwalter and T. B. Cosgrove, for appellant; Nellie B. Kessler, of counsel.
    J. B. Mann and F. L. Draper, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant brought suit in the Circuit Court of Vermilion county against appellee for alleged malicious prosecution. Upon the conclusion of the evidence offered by appellant, on motion of appellee, the court directed a verdict in favor of appellee, upon which judgment was thereafter rendered. Appellant prosecuted this appeal.

It appears from the evidence that appellee was the owner of the furniture, fixtures, good will and lease of a hotel property in Danville, Illinois, and wishing to sell, advertised the same in a Chicago newspaper; that appellant, having seen the advertisement, entered into negotiations with appellee which resulted in her buying on December 21, 1907, a one-half interest in such property, exclusive of the dining room which was run separately by one Delia Gahan; that said appellee retained the ownership and control of the other half interest in said property and undertook to and did run the business jointly thereafter with one Vichborn, who acted for appellant in the conducting of the hotel business; that on the seventeenth of February, 1908, appellant, through Vichborn, purchased the other half interest in said property and business and that said Delia Gahan continued to manage the dining room separately as she had done before. It further appeared that after the sale by Current of his entire interest in the property and in March, 1908, said Delia Gahan, while appellant and Vichborn were in control of the said business, caused said appellant and her manager, Vichborn, to be arrested on the charge of living in an open state of adultery; that a preliminary hearing was had before a justice of the peace upon such charge, which resulted in the discharge of the accused parties. Thereupon, appellant brought suit against Current for malicious prosecution upon the trial of which the court directed a verdict in favor of Current as hereinbefore stated.

The question to be determined is whether or not the evidence with all its reasonable inferences and intendments showed or fairly tended to show that appellee was guilty of the charge of malicious prosecution brought by G-ahan against appellant. Woodman v. Ill. Trust and Savings Bank, 211 Ill. 578.

The only matters given in evidence by appellant or offered by her in evidence which, it is claimed, tended to connect Current with the prosecution commenced by Gahan are the following: Appellant proved that about April 1, 1908, appellee said to one Hayden that the hotel had a bad reputation on account of the people that were there and that he tried to get them out through Miss Gahan but that she had failed, and appellant offered to prove that about the time Current first advertised the property for sale in the Chicago papers and about ten days before the sale to appellant he said to one Doney that he wanted a partner and that what he wanted of a partner was to “skin” him. While the above may have amounted to a scintilla of evidence to go to the jury on which to base . a verdict, it cannot be said to amount to any more than a scintilla.

The rule upon this subject is stated in Libby, etc., v. Cook, 222 Ill. 206, in the following words: “If there is no evidence, or but a scintilla of evidence tending to prove the material averments of the declaration, the jury should be directed to return a verdict for defendant. If, however, there is, in the record, any evidence from which, if it stood alone, the jury could without acting unreasonably in the eyes of the law find that all the material averments of the declaration had been proved then the case should be submitted to the jury.”

We do not see how it can be claimed that the statement made by appellee that he wanted a partner that he might “skin” him in any way shows or tends to show that Current induced or encouraged Gahan to prosecute appellant for adultery. The most that can be claimed for the wish expressed, viz. to “skin” some prospective partner, is to say that Current was willing to be financially dishonest, not that he proposed to charge some innocent party with the commission of a crime or misdemeanor.

The statement proved to the effect that appellee said to Hayden that the hotel had a bad reputation on account of the people that were there and that he had tried to get them out through Gahan but she had failed, with all the inferences and intendments that can be reasonably drawn therefrom does not support or tend to support the charge that appellee was responsible for or connected with the criminal prosecution set in motion by Gahan.

The judgment is affirmed.

Affirmed.


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    Quincy Gas, Electric & Heating Company, Appellant, v. O. N. Barr et al., Appellees.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Govert & Lancaster, for appellant.
    J. G. Gilmer, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant brought suit in the Circuit Court of Adams county upon an account against appellees. There was a verdict, upon a plea of tender, in favor of appellees, and this appeal followed.

The controversy related to a claim made by appellant in the sum of $55.33 for gas and electricity furnished by it to appellees for the month beginning July 19, and ending August 19, 1907. Appellees insisted upon the trial that there was only $22 due from them to appellant for such gas and electricity consumed by them during such period of one month, which amount they tendered to appellant and brought into court in due time and deposited it with the clerk of such court in full of appellant’s demand.

The jury found the tender to be sufficient, the court approved the same and rendered judgment against appellant for costs. Appellant insists that the verdict is against the manifest weight of the evidence and should be set aside.

We have examined the evidence as abstracted and do not think the verdict is so manifestly against the weight of the evidence as to make a reversal necessary. The issue was purely one of fact and seems to have been fairly submitted to the jury. There was evidence which tended to corroborate each party in the contention made and there was a sharp conflict in the evidence upon the question of the amount of gas and electricity used by appellees and also upon the claim made by appellees that appellant had furnished them with a defective meter.

There is no reversible error in the record and the judgment is affirmed.

Affirmed.


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    H. Mueller Manufacturing Company, Appellee, v. John Boland, Appellant.
    Justices of the peace—when appeal from, should not he dismissed. If a general appearance Is filed by the defendant without objecting to the absence of an appeal bond, it is error to dismiss the appeal without giving leave for the filing of a new bond.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Lee Boland, for appellant.
    Buckingham & Gray, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee instituted suit against appellant before a justice of the peace in Macon county and recovered a judgment for the sum of $53.50. Appellant undertook to perfect an appeal from such judgment to the circuit court of said county but in executing the appeal bond he failed to sign the same himself, although it was signed by two sureties and was in regular form. When the case was called for trial in the circuit court and after a jury had been partially examined, on the motion of appellee, the appeal was dismissed for want of an appeal bond and a cross motion for leave to file an amended bond was overruled. From this action of the court an appeal to this court was perfected.

The record discloses that on the day set for trial in the circuit court, viz., February 21, 1908, and at the time when the case was regularly called for trial, both parties were present in court personally and by their respective attorneys; that upon the call of the case for trial, counsel for each party announced orally to the court that his client was ready for trial; that thereupon a panel of twelve jurors was regularly called into the jury box by the clerk; that counsel for appellee examined three of such jurors when it was discovered that the purported appeal bond had not been signed by appellant. Thereupon the appeal was dismissed as hereinbefore stated.

We hold that the office of an appeal bond when filed before a justice of the peace, is to remove a cause from that court to another court for trial and that a general appearance by the appellee in such other court without objection to the bond, is a waiver of appellee’s right to assert that there is no appeal pending. In Lyman v. Williams, 84 Ill. App. 82, it was held that one who entered a general appearance in a cause similar to the one now under consideration, submitted to the jurisdiction of the court, although the appeal bond was not signed by the person purporting to take the appeal. This doctrine is not qualified or modified by the opinion in Harrison v. Nelson, 96 Ill. App. 397, cited by appellee, for in that case there was no general appearance entered, but a motion, having for its object only, the dismissal of the case for want of jurisdiction.

The action of the court in dismissing the appeal after a general appearance had been entered, without giving appellant leave to amend or to supply a good and sufficient bond, was error for which the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    H. B. Sinsabaugh, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common cabbierS'—when burden of exculpation upon. When the evidence is that cattle were in good condition when delivered to the carrier for shipment and that when they arrived at their destination they were to some extent bruised and damaged, the burden is upon the carrier to show that they were not injured through its negligence.

      2. Common cabbiebs—what evidence tends to rebut presumption of negligence. If the burden has been cast upon the carrier to show lack of negligence in transporting mules, it is competent as tending to rebut the presumption of negligence to show that other mules carried on the same train in another car reached their destination without injury.
    3. Evidence—what record entries incompetent. A book kept by an agent of a railroad company in which the condition of property upon reaching destination is recorded, even though provided for by a regulation of the company, is not competent in itself but may be.used by such agent for the purpose of refreshing his recollection.
    Action on the case. Appeal from the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed May 19, 1909.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and James Vause, Jr., of counsel.
    Craig & Kinzel, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Coles county against appellant to recover damages to a carload of mules alleged to have been occasioned by the negligent and careless manner in which said mules were handled by the servants of appellant while being shipped from Mattoon, Hlinois, to East St. Louis, Illinois. There was a recovery in such court in the sum of $100 in favor of Sinsabaugh and the railway company appealed.

Appellee shipped two car-loads of mules on the eighth day of October, 1906, from Mattoon, Illinois, to East St. Louis, over the appellee’s line of road. There were twenty-five mules in one car and twenty-two in the other. They were shipped at the same time and under one contract. They were transported in the same train and arrived at their destination at the same time. The train in which the mules were shipped reached East St. Louis on schedule time, but the evidence tends strongly to show that when the mules arrived at the yards at Bast St. Louis, those in one of the cars were somewhat scarred, bruised and otherwise injured. It was to recover damages for this injury that suit was instituted.

Appellant first insists that the trial court committed error in the rejection of competent evidence offered by appellant.

The evidence is undisputed that the mules were in good condition when delivered to the carrier for shipment and that when they arrived at their destination they were, to some extent, bruised and damaged. The burden was therefore upon the carrier to show that they were not injured through its negligence.- Wabash R. R. Co. v. Johnson, 114 Ill. App. 545; M. C. Ry. Co. v. Osmus, 129 Ill. App. 79.

Appellee offered no testimony whatever tending to show that such mules were roughly or negligently handled by any of the servants of appellant while en route, or that the train itself was negligently or carelessly managed, in any way, but seems to have relied solely upon the presumption of negligence which arises when stock is in good condition at the time it is received, by the carrier, but damaged when delivered.

Appellant contended upon the trial that from the appearance of the injuries themselves it was evident that the mules were hurt by one another, either by biting, kicking, or striking, and that such injuries were attributed solely to the nature or vice of the animals themselves.

In this condition of things and with the burden cast upon it to show that such injuries were so the result of such disposition of the mules, appellant offered to prove that the mules in the other car and transported in the same train were not injured at all, and that the two cars were handled in the same manner by appellant’s servants. This evidence the court held to be incompetent and it was rejected. This was error. Such evidence, if admitted, would have tended to show that the servants of appellant were not guilty of the negligence charged in plaintiff’s declaration. The evidence was undisputed that the two cars, containing appellee’s mules, were coupled together and so remained during the shipment, and that the cars were handled in the usual and ordinary manner by the servants of appellant; that when switching was done en route, these cars were not moved or disturbed but left standing on the main track, and that at no time was the train jerked. It would seem that any negligence of the company that would have injured mules in one car would, under the circumstances recited, have injured those in the other car. This was at least a very significant circumstance attending the shipment and one of which appellant should not have been denied the benefit.

Appellant next insists that it was wrong not to permit it to introduce in evidence a book kept by the clerk of appellant at its yards in East St. Louis in which it was his duty to record the condition in which shipments of live stock were there received, but in this we see no error. While the book may have been kept in pursuance of a regulation of the railroad company for the purpose of better enabling it to determine what its servants had observed as to the condition of stock received at said yards, yet that would not make the entries in said book, of themselves, competent evidence. The yard clerk who made the entries was not offered as a witness by appellant, and if he had been he could have been permitted to make use of such entries only as a means of refreshing his memory.

To allow an agent of appellant to record in a book his conclusions as to the conditions in which the mules were received and then to admit such entries in evidence, would be to receive the judgment or conclusions of the witness instead of his testimony, and in that way accord to his unsworn statements greater value than his testimony under oath could have.

Whether or not appellee knew of the terms of the written contract and assented thereto, and whether he was advised that appellant had two established rates of freight on shipments of live stock were questions of fact which were in sharp conflict and were for the jury to determine, under the evidence, and we refrain from expressing any opinion in relation to those matters.

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

Reversed and remanded.


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    W. H. Hilton et al., Appellees, v. William L. Oakes, Appellant.
    1. Appeals and ebeobs—power to reverse without remanding. Even though the evidence was such as not to justify a peremptory instruction, yet the Appellate Court will reverse without remanding on the ground that the weight of the evidence does not authorize the verdict.

      2. Contbacts—when strict performance essential. Substantial performance of a contract providing for the construction of a monument provided for by definite specifications is not sufficient; strict performance is essential.
    Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Albebt M. Rose, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed May 19, 1909.
    Rehearing denied, opinion modified June 30, 1909.
    James M. Taylor and Leslie J. Taylor, for appellant.
    Hogan & Wallace, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellees, W. H. Hilton and W. E. Barbre, brought suit for the use of the First National Bank of Taylor-ville, Hlinois, against William L. Oakes to recover the price of a monument, alleged to be due by the terms of a written contract. There was a verdict and judgment in favor of appellees in the sum of $744.68, from which Oakes has prosecuted an appeal.

The case was before this court upon a former appeal at the November term, 1905, when the judgment was reversed and the cause remanded in an opinion reported in 127 Ill. App. 208, and as the subject-matter of the controversy was there fully set out, it is unnecessary to state it in detail in this opinion.

Upon the former hearing we held that the contract involved required appellees to erect a monument which should, when completed, strictly comply with the terms of the contract, and from that holding we have no disposition to depart. Counsel for appellees, in their brief, say that “in the trial of the present case the theory of strict compliance was the one on which the case was tried.” In the trial last held at the close of all the evidence upon the part of appellees, appellant offered a motion to take the case from the jury upon the ground that there was no evidence upon which a verdict could be returned in favor of appellees, which motion was overruled by the court and an exception saved. This motion was renewed by appellant at the conclusion of all the evidence in the case which motion was also overruled and exception had.

Several witnesses called on behalf of appellees, who were engaged in the business of selling and erecting monuments, testified that they had examined the monument in question and that in their opinion such monument was a first-class job as required by the contract. In view of this evidence the trial court, not being empowered to weigh the evidence and determine the issue as one of fact, properly refused to give the peremptory instructions requested by appellant. This court is, however, authorized to reverse the judgment without remanding the cause' upon the ground that the weight of the evidence does not authorize the verdict. C. C. C. & St. L. Ry. Co. v. Alfred, 123 Ill. App. 477; Toolen v. Chicago Towel Supply Co., 222 Ill. 517.

The contract involved provided among other things that the'monument should be a light, fine grained, gray granite monument, subject to inspection by the purchaser and if not first class in every particular, purchaser need not receive it until made so at expense of the builder.

This language is too plain to be misunderstood and clearly means that the monument when finished must be not only of light, fine grained and gray granite, but that the work should be first-class in every detail.

The monument was what is commonly known as a combination job, with the cap, die and one base hammered and the other two bases rock faced. A consideration of all the evidence offered by appellees shows that there was slight difference in the shades of gray between some of the separate pieces composing the monument; that one base was a shade darker, while another base also was a little different shade from the others; also that there were some ten or twelve bruises or drill marks about six inches apart on one side of the second base of the monument, which were there when appellees turned the monument over to appellant as a completed job under the contract.

From such evidence it further appeared that such drill holes were made when the size and shape of the base were determined upon, and when the base was separated from the adjoining granite. The base, when its size was determined upon, was not large enough to proportionately fit the adjoining pieces and permit of pitching out these drillholes. Either the drill holes had to be allowed to remain in full view upon the base, or the base had to be so reduced in size by pitching out the bruises that it would appear proportionately small, when compared with the other pieces.

It further appeared from such evidence of appellee that while it was usual in many cases to permit drill holes to so remain upon such monuments, yet when it was practicable to pitch these marks, or drill holes out, it was the rule to pitch them out; that it was preferable to do so and the work looked better to have them out. From the evidence of appellee, only one conclusion can be drawn consistently and that is, that the base upon which these drill marks appear was too small to fill the place it was designed to fill and be free from drill holes. These drill holes seemed to have their centers along a line which marked the outside measurement of the base on one side. To have made the work upon that side of the base look like the base upon its other sides, it would have been necessary to reduce the size of the base approximately one-half of the diameter of the drill holes.

Appellees were bound by the contract sued on to do first-class work in every particular, and appellant was not put to his election to determine whether he would accept a monument with drill holes appearing along the whole of one side of the second base, or to accept one with its second base too small and out of proportion to the other parts of the monument.

We are clearly of the opinion that the great weight of the evidence did not authorize a verdict for appellees, and find as a fact to be incorporated in the judgment of this court that the work tendered to appellant was not in strict compliance with the contract between the parties.

The judgment of the trial court is reversed, but the cause is not remanded.

Reversed.


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    Henry C. Goebel et al., Appellees, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    1. Tender—effect of, as admission. A tender is an admission of liability and leaves open only the question of the amount of such liability.
    2. Measure oe damages—for loss of merchandise in transit. In such a case the measure of damages is the value of such merchandise at the place of destination.

      Action commenced before justice of the peace. Appeal from the County Court of Morgan county; the Hon. Fbancis E. Baldwin, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Rehearing denied June 30, 1909.
    Kirby & Wilson, for appellant; Chester M. Dawes, of counsel.
    Edward P. Brockhouse, for appellees; Bellatti & Barnes, of counsel.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellees sued appellant to recover the value of a duplicate shipment of flour, made under an alleged order to appellant, and upon the trial had before a jury in the County Court of Morgan county a verdict was returned in favor of appellees in the sum of $159.46 upon which a judgment was entered from which this appeal has been prosecuted.

It appeared from the evidence that on the 22nd day of April, 1907, appellees, who were flour millers at Jacksonville, Illinois, received an order from B. C. Hall of Elmwood, Illinois, for 30 barrels of flour, at the aggregate price of $117 at Jacksonville and on June 15, 1907, shipped the same to Hall upon appellant’s line or road; that appellees prepaid the freight thereon to appellant in the sum of $6.11; that this shipment of flour, when it was received by Hall was found to be unfit for use, having become spoiled while in appellant’s care; that upon an examination by appellant, it took back the flour from Hall and disposed of it; that on the 24th of June, 1907, appellees replaced the flour, i. e., shipped a like amount of the same kind and quality to Hall and paid to appellant the freight charge of $6.11 and that thereupon Hall paid appellees the sum of $117, being the amount of the first shipment.

It further appeared from the evidence that there was an advance in price of $1 per barrel upon flour of the grade involved, between the date of the order of the first shipment and the time of the making of the second shipment to Hall, and that upon appellees’ learning of the loss of the first shipment Goebel, one of the appellees, notified E. F. Mitchell, the local agent of appellant at Jacksonville, of such loss and asked bim what appellees should do. It is claimed by appellees that in response to these inquiries made by Goebe], Mitchell, acting as such agent of appellant, said, “make a duplicate shipment and make claim for the difference.”

This suit was brought by appellees upon the theory that appellant was liable to them for the value of the flour at Elmwood at the time of the delivery there of the second shipment and upon this theory the verdict was returned and judgment rendered, now sought to be reversed.

After suit was brought appellant made a tender of $117, the value of the first shipment, together with interest and costs, which tender was kept good by bringing the money into court.

Appellant contends that the right of recovery was in Hall as consignee; that by delivery of the goods to the common carrier, the property in the goods vested in the consignee and that no one else could, by substitution, maintain suit in his own name. Whatever merit there may have been in this contention, if made in proper form, appellant now is in no position to urge, for the reason that it has admitted a liability in appellees’ favor by making tender in court of the money it concedes to be due. County of La Salle v. Hatheway, 78 Ill. App. 95; Frew v. Ill. Cent. R. R. Co., 57 Ill. App. 42; Toledo, St. Louis & Western R. R. Co. v. Beals, 137 Ill. App. 430.

In admitting a liability by its tender appellant left no question undetermined except the amount of recovery. The undisputed evidence showed that at the time of the delivery of the second shipment at Elm-wood the flour had advanced $1 per barrel over the price at which it was sold on the order of April 22, and that its value at the time of such second delivery was fully $153 at the place of delivery.

The value of merchandise at the place of destination is the measure of damages. Northern Transportation Co. v. McClary, 66 Ill. 233.

The verdict was for the value of the flour at Elm-wood at the time of the second shipment with interest.

There is no error in the record and the judgment is affirmed.'

Affirmed.


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    Plaindealer-Herald Publishing Company, for use, Appellee, v. County of Coles, Appellant.

      Counties—power of Circuit Court to authorize expenditures. The Circuit Court has no power to authorize its cleric to incur an expenditure for the printing of its dockets so that the same may be distributed one copy to the judge and one copy to each member of the bar, etc.; neither section 19 of chapter 110 nor section 34 of chapter 37 confers such authority.
    Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 22, 1909.
    John McNutt, for appellant.
    James Vause, Jr., for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Coles county against appellant to recover the sum of $35 alleged to be due from the county to appellee for printing done by appellee upon the order of the circuit clerk of said county. There was a judgment in appellee’s favor for the amount claimed, and this appeal followed.

Appellee filed a declaration in which it was in substance alleged that at the October term, 1899, of the Circuit Court of Coles county the judge thereof- made the following order: “Ordered that the clerk have printed a sufficient number of copies of the bar docket at this term of court and at each term hereafter to furnish one copy each to the judge, clerk, sheriff, master in chancery and to each member of this bar and attorneys appearing in any cause and that he furnish the same to such officers and attorneys;” that in pursuance of such order the clerk of said court gave directions to appellee by force of which a bar docket was printed and furnished by said appellee to said clerk for the use of each of the attorneys having business in said Circuit Court and that the reasonable value of such bar dockets was $35, etc.

Appellant demurred to said declaration, and the demurrer having been overruled, appellant elected to abide by its demurrer and now brings the case to this court to have determined the right of the clerk of the Circuit Court to bind the county to the payment of the reasonable cost of printing such bar dockets.

Appellee in support of its claim contends that, since under section 19 of the Practice Act, the clerk of the Circuit Court has power “to furnish the judge and bar at each term with a copy” of the docket and since section 34 of chapter 37 of the revised statutes provides: “The said courts (Circuit and Superior) may from time to time make all such rules for the orderly disposition of business before them as they may deem expedient, consistent with law,” the order made by said court was fully authorized and under it a recovery was warranted.

Such construction of the sections mentioned would be a perversion of the plain meaning of the words employed in the statute. The language quoted from the Practice Act and relied upon by appellee, merely gives to the circuit clerk power to furnish the judge and bar at each term a copy of the docket and does not give him power to print and furnish a copy to each member of the bar. To hold that the clerk is authorized to furnish to each member of the bar a printed copy of the docket under an enactment which alone authorizes a copy to the judge and bar would be to read into the statute words which are not there.

The rule of the court above quoted, in our judgment, gave the clerk no power beyond that which he already had under the section authorizing one copy of the docket to be furnished to the judge and bar. Under said section 34 of chapter 37 the court only had power to make rules “for the orderly disposition of business.” Gregson v. Allen, 85 Ill. 478; Rozier v. Williams, 92 Ill. 187.

The rules here contemplated are those which have reference to procedure and practice and are limited in their application to the disposition or transaction of business before the court for determination.

We are constrained to hold that the order of October 1899 was unauthorized and that the demurrer therefore should have been sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    C. V. McClenathan, Appellee, v. Emmons Davis et al., Appellants.
    Negotiable instbuments—what within definition of. A note payable at a specific time after the death of a life tenant is a negotiable instrument within the legal definition of the term.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Ckaig, Judge, presiding.
    Heard in this court at the November term; 1908.
    Affirmed.
    Opinion filed May 28, 1909.

      Walter V. Dysert and Ray & Dobbins, for appellant, Emmons Davis.
    Acton & Acton, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in assumpsit in the Circuit Court of Vermilion county against appellants. There was a verdict in favor of appellee in the sum of $1,567.77, upon which the court rendered judgment and this appeal followed.

It appears from the evidence that on the 21st day of September, 1893, one H. V. Davis, the father of appellant, Emm oris Davis, and Elizabeth G-amble, made a warranty deed for the expressed consideration of $100 to said Emmons Davis, for a tract of land of 115 acres in Champaign county, Illinois; that hv the making of said deed to said Emmons Davis and of certain other deeds to brothers of said Emmons, the said H. V. Davis conveyed and deeded to the said brothers all of his property and real estate, reserving to himself a life estate in the lands conveyed, without having in any way conveyed to said Elizabeth any real estate and without having given to her any personal or other estate. It further appeared from the evidence that while matters were in this condition said Elizabeth Gramble had a conference with said Emmons in which she claimed to him that the deeding of all the father’s property to her brothers was a fraud upon her rights and that she intended to proceed in court to have the conveyances set aside unless some settlement could be made between them; that thereupon it was agreed between said Emmons Davis and said Elizabeth that said Emmons would give her his note for $1,500 and would induce each of his brothers to do the same; that in pursuance of such arrangement said Emmons Davis made and delivered to said Elizabeth his promise in writing in the words and figures following, to-wit:

“For value received, I promise to pay Elizabeth Gamble, or order, the sum of Fifteen hundred dollars, in twelve months after I shall become the legal owner of one hundred and fifteen acres of land conveyed to me by my father, H. V. Davis, reserving to him, H. V. Davis, a life estate in said land, by which at his death, I am to become possessed of and the owner in fee of said one hundred and fifteen acres situated in the southeast corner of section thirty, in township eighteen north, range eleven, east of the 3rd P. M., Champaign Co., Ill.
(Signed) Emmons Davis.”
March 6th, 1894.
■Witness Thus. J. Smith.”

It further appears from the evidence that said H. V. Davis died on the 3rd day of July, 1906, and that on the 5th day of June, 1907, and before the expiration of twelve months after the death of said H. V. Davis, appellee for a valuable consideration purchased the said instrument in writing from said Elizabeth Gamble, who duly endorsed said instrument and guaranteed payment thereof.

Counsel for appellant in their argument say that the vital question in the case is this: Is the instrument sued upon a negotiable promissory note payable at all events, or does its payment depend upon a contingency or event which may never happen, in which latter event it would be a mere contract and not negotiable.

It is true that all other questions in the case depend upon the solution of this one, and that disposition of that question is decisive of the entire controversy.

Appellant contends that the condition expressed in the writing upon which the promise of payment depends is “a question of law and fact as to whether H. V. Davis then had good title to said premises, also whether the supposed conveyance to Emmons Davis was sufficient to carry the fee simple title.” This seems to us to be a strained construction of the language employed and not to express the true meaning of the instrument. The promise upon the-part of the maker was, in legal effect, to pay G-amble in twelve months after the death of the father, the sum of $1,500. The land involved had already been conveyed to Emmons by his father as expressed in the writing, while so in the writing Emmons states that by the death of his father he becomes possessed of and the owner in fee of the premises conveyed.

Here is the distinct and positive statement by Emmons that upon the death of his father his estate in the lands conveyed becomes absolute, i. e. he becomes the owner in fee. The promise then is to pay twelve months after the expiration of H. V. Davis’s life estate in the lands, which of course ends and terminates upon the death of said H. V. Davis.

We therefore hold that the promise to pay did not depend upon a contingency that was uncertain and was not one that might never take place, but upon the contrary depended upon the happening of an event that must inevitably take place.

A note payable at a certain time after the death of a person would be a negotiable instrument for the person would be sure to die and hence the payment is not conditional. Shaw v. Camp, 160 Ill. 425; Beatty v. College, 177 Ill. 280.

The judgment was right and is affirmed.

Affirmed.


text:
    Eva J. Cline, Plaintiff in Error, v. Hugh W. Bunn, Defendant in Error.
    Appeals and ebrobs—when finding of court not disturbed. A finding of fact by the court will not be set aside on review as against the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed June 14, 1909.

      Rayburn & Buck, for plaintiff in error.
    Barry & Morrissey, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Eva J. Cline brought suit in the Circuit Court of McLean county against Hugh W. Bunn to recover the amount alleged to be due upon a promissory note. There was a trial had before the court without a jury, which resulted in a judgment, in favor of Bunn and against Cline, for costs. Cline sued out a writ of error.

It appeared from the evidence that Isaac Bunn, who was the father of both the parties to the suit, died owing one Hiser upon a promissory note for the principal sum of $500; that Ruth Ann Bunn, the widow of said Isaac, as executrix of his last will and testament, settled or adjusted the said Hiser claim on the next day after the expiration of the time allowed for presenting claims against the estate by agreeing with her son Hugh W. Bunn that in consideration of said-Hugh W. Bunn paying and taking up the Hiser claim, which then, on January 20, 1904, amounted to $542.30, she would surrender and give up to him a note made by him, Hugh W., to her, said Ruth Ann Bunn, on December 4, 1902, for the principal sum of $500, due in two years from its date with interest at 6% which is the note now in dispute.

Defendant in error claims that at the time of the adjustment of the Hiser claim, his mother, after agreeing to surrender and give to him his said note of $500, attempted to find it and after looking among her papers she was unable to find it and further said that it must be in the hands of Eva J., her daughter, plaintiff in error, who then resided in the country a few miles away and that she, the mother, would have the note brought in and surrendered to him. Plaintiff in error contends that the note sued on had never been paid or in any way adjusted by defendant in error; that there was no consideration for the mother’s promise and that as the note was delivered and endorsed to her before maturity she was an innocent holder.

There is some dispute as to the terms of settlement had between the mother, acting as executrix of the last will of Isaac Bunn, her son, Hugh W. Bunn, and one Hester, who represented Hiser in the adjustment of his note at the time when it is claimed by defendant in error that the mother agreed to get and surrender to him the note now sued on, but it is not disputed that in pursuance of the terms of such arrangement or settlement and immediately following such settlement defendant in error paid and took up the Hiser note and that the mother, as executrix, in her report of her doings as such filed shortly thereafter asked credit for having paid the Hiser claim in the sum of $542.30 and in her report stated that said Hugh W. Bunn had in fact paid said sum for her as executrix.

The undisputed facts above referred to so clearly establish the claim of payment by defendant in error of the note sued on at the request of the executrix that we would be unwarranted in reversing the judgment of the trial court upon the assignment of error relating to that subject-matter.

'Since the trial court was warranted in finding that the defendant in error paid the Hiser claim, or in some way adjusted it, at the request of the mother, there was ample consideration for her promise to allow defendant in error credit for such payment and to agree, upon her part, to surrender to him the note now sued on.

Whether or not plaintiff in error had notice before she acquired the note, of the claim made by defendant in error that the note had been adjusted by him and that it should be surrendered to him, was purely a question of fact for the trial court to determine upon all the evidence. A consideration of such evidence does not satisfy us that the holding upon that subject was unwarranted. The note, by its terms, was due on December 4, 1904, and came into possession of plaintiff in error on June 8, 1904, and was endorsed to her by the mother without recourse. Plaintiff in error contended upon the trial and so testified that she had never been notified that the note had been adjusted and was to be surrendered to defendant in error, and defendant in error testified that in March, 1904, nearly three months before plaintiff in error claims she received the note from her mother, he told plaintiff in error not to take the note from their mother as he had paid the same.

The evidence was close upon this question as to whether or not plaintiff in error had notice when she acquired the note, of the claim of payment or settlement made by defendant in error, but we have no doubt that in arriving at its conclusion the trial court was influenced by the fact that at the time of the taking of the note by plaintiff in error from her mother, she had removed to and was living in the home of her mother.

The issue was purely one of fact and one which the trial court, with superior advantages, could, acting as a jury, determine better than we can. We are not disposed to hold that the trial court was in error in finding that the note sued on had been adjusted and that plaintiff in error took the note with knowledge of such facts.

The judgment was right and is affirmed.

Affirmed.


text:
    August Hackart, Jr., Appellee, v. Decatur Coal Company, Appellant.
    Mines and Minees Act—what evidence of demands for props not prejudicially erroneous. Held, that evidence of ineffectual demands for props made on the day of the injury not being disputed, it was not prejudicial error to receive in evidence other demands for props which had not been complied with.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed June 14, 1909.
    Le Forgee & Vail, for appellant.
    Jack & Deck and Redmon & Hogan, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

August Hackart, Jr., brought suit in the Circuit Court of Macon county to recover damages alleged to have resulted from injuries sustained by him while working in the mine of said Decatur Coal Company. There was a verdict in favor of Hackart in the sum of $3,135 upon which the court rendered judgment and this appeal followed.

Appellee was in the employ of appellant as a coal miner and while engaged in such services he was seriously and permanently injured by a fall of slate from the roof of appellant’s mine. There was conflict in the evidence upon some features of the case, but a careful examination of all the evidence satisfies us that the chamber in which appellee was at work was only about four and one-half or five feet high from floor to roof; that appellee, at the time he received the injury complained of, was working in a kneeling position and was injured by a fall of slate upon the back portion of his body and head and upon his legs, which broke his legs and caused some injury to his back and head; that on the morning of the day of the injury, and before the injury took place, demand was made in the manner which was customary in said mine for caps and props by appellee’s father for use by himself and appellee in the room in said mine where they were working together; that sufficient caps were not furnished appellee and his father for their use and that the fall which caused the injury sued for was caused by the failure of appellant to furnish suitable and sufficient caps to stay and support the roof under which appellee was at work.

On the trial of the cause appellee was permitted to prove over objection of appellant that appellee and other coal miners in the employ of appellant in its said mine had frequently demanded props and caps at other times prior to the day of the injury of appellee and that appellant had failed to furnish the same upon such demand.

The admission of this evidence is assigned as error by appellant and is the only assignment which we deem of enough merit to warrant discussion. All the evidence upon the subject of demand for props and caps by appellee just before his injury, was given by appellee and his witnesses and was amply sufficient to warrant the jury in finding that appellee had made such demand prior to the time of his injury and long enough prior to that time so that such props and caps could easily have been furnished to appellee in time to have averted the fall which caused the injury. Appellant offered no evidence of any kind showing or tending to show that such demand for props and caps had not been made as claimed by appellee, but sought to justify its action in that respect by showing that props could be and sometimes were used for caps, which did not in any way dispute the demand or tend to show that the caps demanded were furnished. Under such circumstances we do not see how the admission of the testimony complained of could have been prejudicial to appellant’s cause. If the case had been a close one upon that point and there had been testimony upon the part of appellant that no demand had been made for props and caps as claimed by appellees just prior to the injury, then the admission of the evidence complained of would have been prejudicial error, as evidence of other demands followed by failures to comply therewith, would have influenced the jury to believe that the demand and refusal alleged to have existed in the instance under discussion had been established, but since appellant by none of its servants, nor by its superintendent, pit boss, or manager, disputed or denied the demand testified to on behalf of appellee, the admission of the evidence, although technically erroneous, was not an error so prejudicial to appellant as to warrant a reversal upon that account.

The merits of the case are with appellee, the record is free from reversible error, and the judgment is affirmed.

Affirmed.


author: Wilson, J.

text:
    William C. Dow v. Josephine Blake.
    Delivery oe distress warrant—Landlord not liable for tortious taking.—The delivery of a distress warrant to an officer or person, with directions to execute it, does nob render the landlord liable lor the unauthorized and unapproved acts of the bailiff or his assistants. As there is no proof in the present record, either of a ratification by the landlord or of any tortious taking of plaintiff's goods by the bailiff or his assistants, defendant is not hable.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed June 25, 1884.
    Mr. Bobert Hervey, for appellant;
    that the delivery of a distress warrant to an officer with directions to execute il, does not render the landlord liable for the unauthorized and unapproved acts of the ba-l:ff and his assistants, cited Buchanan v. Goeing, 3 Bradwell, 635; Cooley on Torts, 468; Perrin v. Claflin, 11 Mo. 13; Princeton Bank v. Gibson, 20 N. J. 138; Laively v. Fahnestock, 18 Md. 391; Averill v. Williams, 1 Denio, 501; Clay v. Sandefar, 13 Mon. 334.
   Wilson, J.

This was an action of trespass brought by appellee against appellant, for the alleged taking and carrying away of certain articles of household furniture belonging to appellee. There was a jury trial, resulting in a verdict and judgment for appellee for $23.50.

We have not been furnished with any brief on the part of appellee, but upon a careful reading of the evidence as set forth in the bill of exceptions, it is manifest the finding and judgment were unwarranted. Appellee occupied, as tenant of appellant, certain rooms in a house on North Glark street, which she hired out to roomers. Rent being due and in arrears, appellant issued his distress warrant to one Baleóme, who went to the premises, served his warrant upon appellee, took an inventory of the.furniture belonging to appellee, and placed one O’Neil in possession of the same as custodian, subsequently substituting in his place one Kennedy, who remained in possession until evening of the same day. when, thinking all would be safe, he went home, locking the front door and taking the key with him. After the custodian had left, aud at about half past eight or nine o’clock the same night, appellee removed all her effects out of the house through the back door into an alley, and thence into another house. She subsequently executed her promissory note to appellant in settlement of his claim for rent, which, however, as appears, she never paid. She testified that just before leaving she missed certain articles from her rooms, being the goods mentioned in the declaration, but there is no evidence that they were taken by Baleóme or by either of the custodians, both of whom swear that they neither touched nor removed anything. Whether the articles were taken away by roomers or were lost in the hurried removal in the night time, or how otherwise, is wholly conjectural. At the time of giving her note to appellant for the rent, appellee made no complaint that any of her goods were missing, and the first intimation appellant had that she claimed to have lost any was the commencement of the present suit. The burden of proof was upon the plaintiff to show the taking of the goods by appellant or by his authority or approbation. This the proof clearly failed to do.

But if it had been shown that Baleóme or either of the custodians had tortiously taken the articles, for the taking of which this suit is brought, it does not follow that appellant would have been liable therefor. The delivery of a distress warrant to an officer or person with directions to execute it, does not render the landlord liable for the unauthorized and unapproved acts of the bailiff or his assistants. Becker v. Dupree, 75 Ill. 167; King v. Cook, 4 Bradwell, 525.

In Cooley on Torts it is said “ Every party has a right to assume that the officer will proceed to execute lawful process in a lawful manner, and if instead of doing so the officer proceeds illegally, the party is not responsible unless he has participated in or advised the abuse.” Cooley on Torts, 468. Here appellant issued his distress warrant in a proper case, in due form, and to a proper person, with directions to distrain the goods of his tenant to satisfy the unpaid rent, and he gave no other directions. If the officer or his assistants, going outside of the limits of their authority, wrongfully took away any of the plaintiff’s goods, and such acts have not been sanctioned or subsequently ratified by appellant, he is not chargeable therefor. But there is no proof in the present record either of a ratification or of any taking.

The judgment of the court below is reversed and the cause remanded.

¡Reversed and remanded.