text:
    The Kankakee Coal Co. v. Illinois Central R. R. Co.
    1. Railroads—Unjust discrimination.—Where, in an action brought under the statute against unjust discrimination the railroad company refused to abide their agreement, and ship as cheaply as other roads, and the shipper refused to pay the charges and would not ship at all, and the damages asked were for the profits that the shipper would have made if he had shipped his coal. Held, that the statute does not provide for a case where there has not been a shipment.
    2. Pleading.—The statute against unjust discrimination is a penal statute and it should be made clearly to appear that the precise statutory offense ■has been committed. The allegations as to quantity in the declaration not being made with reasonable certainty, the demurrer was properly sustained.
    Appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed December, 4, 1885.
    Mr. A. Sample and Mr. Stephen B. Mooee, for appellant;
    cited C. & A. R. R. Co. v. People, 67 Ill. 11; W. St. L. & P. Ry. Co. v. People, 105 Ill. 263.
    Mr. B. Fayee, Mr. Chas. II. Wood and Mr. Harrison Losing, for appellee;
    cited St. L., A. & T. H. R. R. Co. v. Hill, 14 Bradwell, 580; C. & P. R. R. Co. v. Forsaith, 59 N. H. 122; Strick v. Swansea Canal Co., 16 C. B. N. S. 256; In re Nicholson, etc., 5 C. B. N. S. 366; In re Harris, etc., 3 C. B. N. S. 712; In re Jones, etc., 3 C. B. N. S. 718; In re Oxlade, etc., 15 C. B. N. S. 680.
   Lacey, P. J.

This was a suit commenced in the circuit court by appellant against the appellee to recover damages for unjust discrimination in freight in favor of the Central Illinois Coal Co., and against appellant. The declaration consists of four counts to which the appellee demurred, which was sustained by the court, and the appellant abiding his dedaration the court rendered judgment against appellant for costs, from which judgment of the court an appeal is taken to this court and the action of the court assigned for error. The suit is brought under the act of 1873 against extortion and unjust discrimination. The action is brought under sections 2 and 3 of said act. Section 3 provides that, “if any such railroad corporation shall charge any person * * for anjr freight of any description upon its railroad for any distance, within this State, the same or any greater amount of toll or compensation than is at the same time charged, collected or received for the transportation of any * * like quantity of freight of the same class of equal or greater distance of the said railroad * * all such discriminating rates * * * shall be deemed and taken against such railroad as prima facie evidence of unjust discrimination prohibited by the provisions of this act.”

The declaration consists of four counts. In the first count .a contract is recited by way of inducement between appellant and appellee. It is averred that appellee agreed to transport appellant’s coal from Clark City to Chicago, and all intermediate points over its said railroad, at as low a rate as that given to any other coal company or person shipping coal on its said railroad, and that it should have its coal transported as aforesaid to Chicago, at as low rates as the Chicago and Alton Railroad Company should, and was transporting coal from Braidwood on the line of the said road to Chicago aforesaid. That appellant had laid out and expended a large sum of money, to-wit, §50,000, in purchasing a coal mine in said Clark City, and in sinking a shaft thereat, and providing necessary machinery and appurtenances for the purposes of mining and hoisting coal from its said mine, and there loa,ding the same on the cars for transportation over its said road from December, .1882, and from thence hitherto, at said Clark City; the plaintiff was ready and able to ship and transport over said defendant’s railroad to Chicago and intermediate stations * * * large quantities of coal daily, 100 tons per day, and from the first day of March, 1883, the plaintiff was ready and able to increase such shipments to 400 tons daily. Then the count charges in various language that the agreement was violated by the appellee charging the appellant a higher rate of freight, for transporting its coal by the car load, than it did the Central Illinois Coal Company, without specifying the amount of coal of the appellant that was overcharged or discriminated against, and avers that appellee refused to fulfill the agreement by refusing to carry its coal at as low a rate as the C. & A. R. R. Co. carried coal from Braidwood to Chicago. That the latter road .fromDecember, 1882 on, charged 75 centsperton,whi)e'appellee .charged it $1.36. The count closes by claiming damages by reason of such unjust discrimination and by reason of the failure and refusal of the appellee to transport coal for the plaintiff from its said mine to Chicago, at as low a rate as was charged by the Chicago and Alton R. R. Co. from Braid-wood to Chicago. The plaintiff was prevented from shipping its coal in the large quantities it was prepared to furnish, and was driven out of the market, and its mine, on which so much money had been expended on the faith of the representations and agreement aforesaid, rendered substantially worthless. This count should have been in assumpsit for breach of contract t) carry coal at as low a rate as the Chicago and Alton E. E. Co. from Braidwood, and at as low a rate as that given to any other coal company, or person shipping over said road to Chicago, a cause of action which would have been entirely foreign to the one provided for in the statute. The only damages claimed on this account are those arising from the appellant being prevented, as is averred, from selling and shipping its coal in the large quantities it was prepared to furnish, and being driven out of the market, and its mine, on which so much money had been expended on the faith of the representations and agreement of the appellee, being rendered substantially worthless. In this count of the complaint, discrimination in the terminal and switching facilities mentioned, is charged as a part of the discrimination in freights, it being the manner in one particular of such discrimination, and to •that extent a breach of the agreement. The fraud charged in this count, in order to make it a count in case as no doubt was intended, consisted in nothing more than the promise by the appellees to convey coal for certain prices, and the breach of such agreement. It is difficult to see how fraud can arise out of the facts set out. It was a mere promise and a breach as dec’ared.

The substance of the claim for damages arises from the fact, as it appears, that on account of the failure of the appellee to abide his agreement and ship as cheaply as the Chicago and Alton and other companies, the appellant refused to pay the charges demanded and would not ship at all, and now asks pay for the profits on coal that he otherwise would have shipped— 400 tons daily—and also the loss of the mine. We do not think that this class of damages could be recovered, for the reason that in ease of actual unjust discrimination the shipper, according to the provisions of the statute, can recover three times the amount of the damages, together with attorney’s fee, and does not provide for a case where there has not been a shipment but simply a demand for illegal freights on the one side and a refusal on the other to ship.

This would not be a case of unjust discrimination provided against by the statute, and if this count is framed under the provisions of the statute, as is claimed by appellant’s counsel, then it is bad for that reason; for it is not alleged that any particular amount of coal was actually carried and discriminated against, and the damages c1 aimed seem to be restricted to those named, and this seems to be the scope and intent of the count.

For this reason we think the demurrer was properly sustained to this count of the declaration.

The second count is very general in its terms, hut is framed somewhat on the same idea of the first count, relying upon the agreement set out in the first count. This count avers that the appellant, on December 1, 1882, and from thence hitherto, was prepared to mine and transport coal from Clark City to Chicago and intermediate stations in large quantities of coal, 200 tons daily, but defendant, to wit, December 1,1882, and from thence hitherto, refused to transport coal for appellant over its said road as cheaply as for a rival company, viz., the Central Illinois Coal Company, over the same route, in the same quantities, at the same time and in the same direction and for the same distance, but on the contrary, appellee charged, collected and received from the appellant a discriminating sum of, to wit, fifty cents per ton by the car load for the transportation of appellant’s coal over its road from Clark City, aforesaid, to Chicago and intermediate points, 10,000 tons of coal over and above what it charged, collected and received for the transportation of a like quantity of coal for said Central Illinois Coal Company by the car load over the same route, at the same time and in the same direction, and for a greater distance. This count, while having the fault of mixing up two causes of action in one, is not specific enough.

It does not give the specifications of the shipments hut charges that from a certain date the appellee refused to ship; hut it does not aver that those were the dates on which the illegal toll was taken, even if this general statement, if followed, had been sufficient. It fails also to show how much coal was shipped from Clark City to Chicago, and how much to intermediate points and what intermediate points. The count shows, if anything, that the shipments were made over equal distances, yet, in assigning the violation, it avers that the Central Illinois Coal Company was charged less freight for a greater distance.

The allegations must be made with reasonable certainty, so that appellee may know what it has to meet. This count is made somewhat under the language of the statute without dates or specifications, and was properly subject to de. murrer.

The third count avers that during the months of January, February and March, 1883, the appellee carried over its said road from Tracy to Kensington, a distance of 69 miles, the coal of the Central Illinois Coal Company, large quantities, to wit, 100 tons daily in train loads, for which service or transportation appellee collected from the Central Illinois Coal Company at 83 cents per ton, and during the same time appellees carried over its same road from said Clark City to said Kensington, a distance of 68 miles, the coal of the appellant in large quantities, to wit, 50 tons daily in carload lots, for which service or transportation the defendant unlawfully charged, collected and received of and from the appellant at the rate of §1.36 per ton. In the said count there is another allegation similar, except Chicago is made the point to which the coal was carried, and another allegation setting the time during April, May, June, July, August, September, October, November and December, 1883, and Kensington and Chicago being the destination, alleging that by force of the statute appellant has sustained damages and has the right to recover three times the amount.

It seems as though the pleader had designedly framed the allegations in such a way as not to explicitly bring himself under the provisions of the statute. It is not stated in the count that the freight mentioned was the “like quantity of freight of the same Fass.” It is stated that the coal shipped for the Central Illinois Company was in train loads, while the coal shipped for the appellant was in car load lots; nor is it stated that the coal used was of the same size or class, or that the coal itself was of the same class of freight. Although it might ordinarily be inferred that it was, both being coal, yet there might be circumstances connected with the two that would place it in different classes. There is no general averment on this point to cover it. The fact also, that the Central Illinois Coal Company shipped by the train" load, and the appellant only by the car load might make a material difference to the appellee in the cheapness with which it could ship. It might not, however, but the allegations do not clearly bring the case within the provisions of the statute, against unjust discrimination. The cars may have been of a very different size, and the cars used in shipping the appellant’s coal might have been much more expensive to use and of a different class.

This is a penal statute and it should be made clearly to appear that the precise statutory offense had been-committed, as the rules applicable to penal statutes require. C., B. & Q. R. R. Co. v. The People, 77 Ill. 443. In the above case the court say, that a count in the decoration charging unjust discrimination, charging a greater rate per mile for shipping one car load of horses, commonly called ponies, from Quincy to Macomb, than for another party from the same starting point to Chicago, for one car load of horses; the court say that this count was bad for the reason that it did not sufficiently charge that it was a like quantity of freight of the same c’ass. There was no averment as to the weight of the animals, or their numbers or sizes, or cl ass of the cars containing them, or otherwise. “ The section itself recognizes the fact of there being railroad cars of different classes and numbers in defining unjust discrimination in respect to the cars. It provides that they be of the same “ class or number.” We therefore think that this count is also bad and that the demurrer was properly sustained. We now come to the fourth count in the declaration, which in substance is as follows: That the appellee under an agreement with the Central Illinois Coal Company agreed in substance that it would transport between the points named in the other counts of the declaration, the coal of the said Central Illinois Coal Company, for a compensation of 30 per cent, of the price for which the said company should sell the coal in the market, but the freight was not to be less than 75 cents per ton, but nrglit be more if the selling price should produce more, the Central Illinois Coal Company guaranteeing to ship 50,000 tons the first year and 75,000 tons during the second year, the agreement running two years from December 1, 1882.

The averment in this count that appellee carried coal at a less rate than charged for appellant’s coal must be understood, in view of all the averments in the count, to mean that the coal was shipped under the agreement, and that the per cent, of the sales received by appellee produced a rate of freight less than that charged appellant per ton over the same distance. The amount of coal shipped by the appellant at the various times charged in the declaration is not stated. The dates are given but the amount shipped at each time, five or six times, is omitted. It is merely stated that it was shipped in car load lots at 81-36 per ton. We infer then, that at least there were two car loads shipped at each time as the plural is used—“ car load lots.” It is not necessary to recite all the conditions of this contract and set out in the count, as what is shown is enough to illustrate the principle on which the decision is based. We do not think that the freight received on shipments of coal under such an agreement as this, when, as a result of the market it produced less freight per ton than charged appellant, can be regarded as a violation of the statute. We do not think that under the circumstances stated a comparison can be instituted in such manner as to render appellee liable under section three of the act against unjust discrimination. Such section was not framed in view of such state of affairs, and the shipments were not of like quantities. It may be a case of unjust discrimination; the proof might show it to be such, but the burthen of proof is on the appellant. There is no allegation that this was not a ionafide contract or that it was a device to evade the statute. The court below did not err in sustaining the demurrer to the declaration. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    The Miami Powder Co. v. Zenas N. Hotchkiss et al.
    1. Attachment—Corporation de facto—Estopped.—A suit in attachment was commenced by appellant, a corporation in Ohio, against appellee. There was no question as to the indebtedness, but appellee filed the plea of nul fiel corporation. Appellant- offered in evidence the statute law of Ohio, which provided for such corporations as the appellant, and user was abundantly shown. Appellee had given notes to the appellant by its corporate name. Held, that appellee can not, under the circumstances, question appellant’s corporate, existence.
    2. Presumption as to law remaining in force.—Where a law is shown to have been passed in 1852, it will be presumed that it remained in force until 1855, when the organization of the corporation in question under the statute is claimed to have taken place, and it will he presumed that it is still in force until the repeal is shown.
    8. Corporation de facto—How shown.—Two things are necessary to be shown in order to establish the existence of a corporation de facto; the existence óf a charter or some law under which a corporation with the powers assumed might lawfully he created, and user by the party to the suit of the rights claimed to he conferred by such charter or law.
    Appeal from the Circuit Court of Peoria county; the Hon. FL M. Laws, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs; Wilson & Raum, and Messrs. Puterbaugh & Putbrbaugh, for appellant;
    that defendant can not be heard to deny that the plaintiff was incorporated, cited Lombard v. Ch. Sinai Cong., 64 Ill. 477; Ramsey v. P. M. & F. Ins. Co., 55 Ill. 311; Stone v. G. W. Oil Co., 41 Ill. 85; Tarbell v. Page, 24 Ill. 46; Mitchell v. Deeds, 49 Ill. 422; Cin., LaF. & Ch. R. R. Co. v. D. & V. R. R. Co., 75 Ill. 116; Thompson v. Candor, 60 Ill. 244; Osborn v. People, 103 Ill. 229; Scanlan v. Keith, 102 Ill. 634; Angell & Ames on Corporations (9th Ed.), p. 635; Morawetz on Private Corporations, p. 139; Palmer v. Lawrence, 3 Sandf. (N. Y.) 161; Black River Co. v. Clarke, 25 N. Y. 208; Eaton v. Aspinwall, 19 N. Y. 119; Dutchess Col. Mfg. Co. v. Davis, 14 Johns. 238; McBroom v. Lebanon, 31 Ind. 268; Ransom v. Priairn Lodge, 51 Ind. 60; Ray v. Ind. Ins. Co., 39 Ind. 290; Lucas v. Greenv. Ass., 22 Ohio St. 339; Swartwout v. Mich. Air L. R. Co., 24 Mich. 389.
    As to incorporation of plaintiff: Mix v. Nat. Bk. of Bloomington, 91 Ill. 20; Field on Corporations, p. 388; Methodist Church v. Pickett, 19 N. Y. 485.
    Messrs. Stevens, Lee & Horton and Mr. G. B. Foster, for appellees ;
    cited Ramsey v. Peoria M. & F. Ins. Co., 55 Ill. 313; Welland Canal Co. v. Hathaway, 8 Wendell, 482; Williams v. Bk. of Mich., 7 Wendell, 543; Hammett v. Little Rock & N. Ry. Co., 20 Ark. 207; Merriman v. McGiveny, 12 Tenn. (Heis.) 497; Fredenburg v. Lyon Lake M. E. Ch., 37 Mich. 478; Greene v. Dennis, 6 Conn. 362; Abbott v. Omaha Smelting Co., 4 Brown (Neb.) 419; Buffalo & A. R. R. Co. v. Carry, 26 N. Y. 75; McFarland v. Triton Ins. Co., 4 Denio (N. Y.) 392; Leonardsville Bk. v. Willard, 25 N. Y. 547.
   Lacey, J.

There were three suits in attachment commenced by the appellant, against Z. N. Hotchkiss, one of the appellees, and a stock of goods, hardware, amounting to §6,000, was attached. The suits were commenced at different times, but by agreement they were all tried as one suit, the issues being the same.

The goods were all attached as the property of Z. N. Hotchkiss, the debtor. The other apypellee being the son of apypeL lce Z. N. Hotchkiss, and claiming the goods as his own through punchase from his father, came in and filed his pfiea of inter-pleader. The apypellee Z. FT. Hotchkiss, filed his pilea of the general issue, as well as the plea of nul tiel corporation.

Before the close of the case the court below excluded all the evidence introduced by the appiellant, and directed the jury to find a verdict for the defendant, Z. N. Hotchkiss, which was done and a verdict rendered accordingly, upon which a motion to set aside the verdict and for a new trial was overruled, and a Judgment against apypellant for costs was rendered, from which the apypiellant has appealed to this court.

The appellant is a corporation, organized and doing business as is claimed under the laws of the State of Ohio, and is engaged in the manufacture of gunpowder. Appellee, Z. M. Hotchkiss, was a hardware merchant, located in the city of Peoria, and had been for many years engaged as the agent of the company in the sale of its powder. Hot being able to pay for the powder at all times sold at stated periods of settlement, he was in the habit of giving his notes to the company for balances due. There was no dispute but that the debt from appellee, Zenas H. Hotchkiss, to appellant, was one, and the notes sued are genuine, and there was evidence tending to show the appellant’s right to recover on the issues that should have been submitted to the jury, unless the position of the appellees is correct in reference to the evidence on the plea of nul tiel corporation. If so, the evidence should have been excluded, and if incorrect, then the court erred .in excluding it. This seems to be the only question of importance requiring decision in the case, and we shall notice no other. The question in dispute is whether in this kind of a case it is competent to show a corporation de facto, and to establish that fact by showing a law under which it can be formed and user under the incorporation, and whether the appellee, Z. H. Hotchkiss, having dealt with the appellants as a corporation and recognized it sufficiently to procure its goods, is not estopped to deny its existence. It is contended on the part of the appellant that it is enough to establish the fact of the corporation by user, and the facts stated, and it is sufficient to establish a corporation de facto. On the other hand it is contended that appellants must establish the existence of the corporation de jure.

To establish the existence of the corporation de facto, appellants introduced among other things, the statute laws of the State of Ohio, duly proven, of 1852, entitled “ Kerwin’s Laws of Ohio for 1852.” The appellant offered in evidence the note, dated May 3, 1884, for §612.40, payable to appellants by its corporate name, signed by Z. H. Hotchkiss, one of the notes in suit, and also two other similar notes sued on in the same case, The notes were offered to show the indebtedness, and that appellee, Z. H. Hotchkiss, had recognized appellants as a corporation, and were admitted against objection of appellees. The appellant offered in evidence statement of account by Z. hi. Hotchkiss, of August 13, 1884, for same purpose, to show recognition as a corporation, the action being for $725.95, and admitted against objection of appellees. It was also intended to show by the accounts and notes that the appellee knew that the appellant was a corporation, and that lie dealt with it as such, and for that reason he could not deny it.

The introduction of this statute was objected to on the ground that it was not shown that it remained in force until 1855, the date of the alleged incorporation, but the court overruled the objection.

The appellant proved user from the date of the incorporation to the • time of trial, by showing the election of officers, and continued transaction of business by the appellant during aT that time. The appellant offered in evidence a certified copy of the certificate of incorporation, under the act referred to, with the accompanying certificate of the secretary of State of the State of Ohio, which was properly rejected because it did not comply with the act of Congress. The act of the legislature of the State of Ohio making the secretary’s certificate evidence, is not operative outside the State of Ohio. The seal of the State is entirely wanting in the certificate which the act of Congress requires. The admission of the statute of the State of Ohio was proper under the evidence, according to the provisions of our present statute, and in showing that the law was passed in 1852 it will be presumed that it remained in force till 1855, Avhen the organization under the statute is claimed to have taken place, and it will be presumed that it is still in force until the repeal is shown.

The court below excluded all the evidence offered by the appellant and therefore the latter dismissed the suit commenced October 23, 1884, and dismissed as to all the counts in declaration filed September 16, 1884, except the 1st and 2d counts of each of such declarations, the counts not dismissed being upon the notes dated May 3, 1884, and April 8, 1884, and left the declaration standing as to the said notes. There Avas evidence in the case tending to prove the appellant’s side of the issue on the attachment and no dispute that Z. N. Hotchkiss was indebted to the appellant on the notes and account.

If therefore the appellant, under the issue of nul fiel corporation, produced sufficient evidence to establish its existence de facto, then the court erred both in excluding the evidence and instructing the jury.

That a corporation de faeto can he proved by user under proper conditions there can be no doubt, and indeed the ap. pellee does not deny this proposition. Appellee concedes in his argument that if appellant had shown the certificate of organization, it would have been sufficient no matter how defective the organization was, and if such fact had been shown and appellee had dealt with it and given his notes, he would be estopped to deny its existence. On the other hand, it is claimed that showing the statute of Ohio under which the incorporation could have been formed, and the fact that defendant dealt with it as an incorporation, and user, is sufficient.

Upon full examination of the law we are satisfied that the law is with the appellant in his claim and that the court below erred in resolving it against it.

In Taylor’s Law of Private Corporations, section 145, note 4, as quoted in appellee’s brief, it is said “ Two things are necessary to be shown in order to establish the existence of a corporation de facto, viz.: The existence of a charter, or some law under which a corporation, with the powers assumed, might lawfully be created, and second, a user by the party to the suit of the rights claimed to be conferred, by such charter or law.”

To the same effect is Methodist Church v. People, 19 N. Y. 485, and Morawetz on Private Corp., section 139; Abbot v. Omaha Smelting Co., 4 Brown (Neb.), 419. In Jones v. Cincinnati Type Foundry Co., 14 Ind. 90, it is said: “lithe style by which a party is contracted with is, as is usual in creating corporations, viz., naming an ideality but disclosing that of no individual, as is usual in the case of simple partnerships, it has been treated as jyrima, facie, at least, indicating a corporate existence, and such, seems to have been the rule at common law.” See also Norris v Stops, Hobart, 11. With this holding of the law we fully concur.

In this case the statute law of Ohio, which was properly proven, provided for such corporations as the appellant herein, and user was abundantly shown, and besides all this the notes were given to appellant by its corporate name of the Miaina Powder Co., an ideality such as corporations usually adopt. Hotchkiss gave his notes to it and he must be held to have known that he was dealing with a corporation and obtaining its property, and surely if the corporation was recognized sufficiently by appellee to obtain its property it certainly ought to be good enough so far as the defendant is concerned to receive payment therefor from him, and defendant should be denied the right under the circumstances to question its corporate existence. We also think that the question has been thoroughly settled by the Supreme Court in this State, in favor of appellant. See Mix v. N’t’l Bank, Bloomington, Ill., 91 Ill. 20; Mitchell v. Deeds, 49 Ill. 422; Lombard v. The C. S. C., 64 Ill. 477; The C. L. F. & C. R. R. Co. v. The D. & V. R. R. Co., 75 Ill. 113; Thompson v. Candor, 60 Ill. 244; Hudson v. Green Hill Seminary Co., filed at Ottawa, May 15, 1885. The latter case conclusively settles the question in a case very similar to this one and no stronger in favor of the appellee in that case. The subscription to the capital stock of the company, user, the statute of Indiana, were shown, but no charter or certificate. Yet the corporate existence was upheld, with a citation of many cases. For the error committed by the court below in excluding appellant’s evidence and instructing the jury to find against it, the judgment is reversed and cause remanded.

Reversed and remanded.


author: Baker, P. J.

text:
    Jacob Weaver v. Walter H. Penny.
    1. Unliquidated damages.—Where the claim or demand for unliquidated damages relates to the transaction out of which the controversy has grown, it forms a proper subject-matter of set-off or affirmative recovery by way of cross-action.
    2. Pleading.—In such case, unless a plea of set-off is interposed or notice given under the general issue or plea of payment, there can not be in the absence of a stipulation, a recovery by a defendant for an excess of indebtedness in his favor, but he may even then, under the general issue, recoup to the full extent of the plaintiff’s damages without’ such plea or notice 'or stipulation.
    3. Damages.—Sale of diseased sheep.—Where a vendor at the time he sold certain sheep did not know that they were diseased, and had no notice or knowledge that they were to be placed where they would come in contact with cattle, it was error to instruct that the vendee could recoup for. the loss of the cattle.1 Such damages were not reasonably within the contempla^ tion of the parties.t
    Appeal from the Circuit Court of Henderson county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. J. W. Davidson, Mr. E. J. Adcock and Mr. W. C. Horcross, for appellant.
    Messrs. Stewart & Stewart and Mr. E. Cooper, for appellee.
   Baker, P. J.

This suit was on a promissory note given by appellant to appellee, for the price of some two hundred sheep sold by the latter to the former. The defense made, was that the sheep were warranted to be sound and free from disease ; that they were, in fact, diseased, and many of them died; and that they communicated the disease to a herd of short-horn cattle, resulting in the death of several of the cattle. Appellant claimed damages for breach of the warranty, and sought to recoup or set off such damages. The verdict was for the appellee for the full amount of the principal' and interest unpaid on the note.

In the case of Hartshorn v. Kinsman, 16 Bradwell, 555, we had occasion to examine and discuss the decisions in this State hearing upon the question of the right to recover unliquidated damages by way of set-off; and from these decisions we deduced the rule that unliquidated damages which do not arise out of the contract or cause of action sued on, are not a proper subject of set-off; but that where the claim or demand for unliquidated damages relates to the transaction out of which the controversy has grown, then it forms a proper subject-matter of set-off or affirmative recovery by way of cross-action.

In such latter case, unless a plea of set-off is interposed, or notice is given under the general issue or p’ea of payment, there can not be, in the absence of a stipulation, a recovery by a defendant for an excess of indebtedness in his favor; but he may even then, under the general issue, recoup to the full extent of the plaintiff’s damages, without such plea or notice or stipulation. In this case, a stipulation was made at the trial, that all evidence proper to be given to the jury under any proper special plea, might be given under the general issue. In view of this agreement, it follows that the rulings of the trial court upon the instructions, to the effect, in substance, that appellant could not recover an affirmative judgment against appellee for damages occasioned by a breach of the contract of warranty, but could only recoup to an amount not to exceed the plaintiff’s claim for principal and interest upon the note, were incorrect. We think, however, it was not such error as should reverse the judgment, as the record shows appellant was not injured thereby.

He claimed he was damaged by the breach of the warranty to a sum in excess of that due upon the note ; and the court held he could recoup to the extent of the note, hut could not recover any excess.

The verdict of the jury was for the full amount of the note and interest, and necessarily involved a finding by them that appellant was entitled tono damages for the supposed breach of warranty. The j ury evidently did not believe that any portion of the counter-claim or demand was established.

The instructions were, in one regard, more favorable to appellant than was his just due. There was evidence before the jury tending to show that the sheep in question had been placed in a pasture along with cattle, and that some of these cattle had died from disease communicated by the sheep. The instructions allowed appellant to recoup for the loss of these cattle, even if the vendor, at the time he sold the sheep, did not know they were diseased and had no notice or knowledge they were to be placed where they would come in contact with cattle. Such damages were not reasonably within the contemplation of the parties. The vendor would not be liable for such consequential losses, except in cases of willful fraud and deceit, or of notice that it was intended to put the sheep with other stock. Hadley v. Baxendale, 9 Exch. 341; Field’s Law of Damages, Sec. 288, and authorities there cited.

The rulings of the court upon the instructions, otherwise than as noted, were substantially correct.

In respect to the merits of the controversy, the evidence was conflicting as to whether or not the sheep were unsound or diseased at the time of the sale; it was for the jury to determine that question, and we are unable to say their finding was so against the weight of the evidence as to justify a reversal.

The judgment of the circuit court is affirmed.

Affirmed.


author: Baker, J.

text:
       Andrew F. Bigelow v. Village of Kewanee.
    1. Discretion of court.—Re-instating cause.—An appellate court will not interfere where the court below has refused a motion to set aside an order of dismissal and re-instate a cause unless there has been a palpable abuse of the court’s discretion resulting in substantial injury.
    2. Affidavit.—An affidavit, in such case which shows negligence on the part of the appellant, and states that there is a full and complete defense to the suit but does not show by facts stated that there is a meritorious defense, is insufficient.
    Appeal from the Circuit Court of Henry county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Chas. K. Ladd, for appellant.
    Mr. C. C. Wilson, for appellee.

       William Mellor v. Village of Kewanee involves the same questions as this case and is affirmed for the same reason.

   Baker, J.

Appellant was prosecuted before a justice of the peace for a violation of an ordinance of the village of Kewanee, and a fine of §25 was assessed against him. He appealed to the Circuit Court of Henry county, where the case was pending for trial at the special March term, 1885. When the case was called for trial, on the 2d day of April, neither he nor his attorney appeared, and thereupon, on motion of the Village of Kewanee, plaintiff below and appellee here, the appeal was dismissed for want of prosecution, at the cost of appellant, and procedendo awarded.

On a subsequent day of the term, a motion was entered to set aside the order of dismissal and re-instate the cause, said motion being based upon affidavits which are preserved in the record.

This motion was overruled and an exception taken ; and the case is now here by appeal. •

We have carefully examined the affidavits, and are unable to say there was anything improper in the action of the court, either in dismissing the appeal, or in refusing to set aside the order of dismissal. Such matters are largely addressed to the sound judicial discretion of the trial judge; and the established doctrine is that an appellate court will not interfere uffiess there has been a palpable abuse of discretion, resulting in a substantial injury.

We think the affidavits presented are insufficient, and ihow negligence on the part of appellant; they are also defective in that they do not show by facts stated, that there is a meritorious defense to the suit; the statement there is a full and complete defense, is the expression of a mere opinion or conclusion. Greenleaf v. Roe, 17 Ill. 474; Union H. & L. Co. v. Woodley, 75 Id. 436; Constantine v. Wells, 83 Id. 192; Hitchcock v. Herzer, 90 Id. 543.

We find no error in the record. The judgment is affirmed.

Affirmed.


text:
    Chicago & Alton R. R. Co. v. Richard Addizoat.
    1. Baggage.—Common carrier.—Wheist relation ceases.—A railroad company is an insurer of the baggage of a passenger so long as the relation of a common carrier exists, and that exists as to such baggage until its arrival and discharge at the place of destination and until the owner has had reasonable time and opportunity to claim and take it away. If it is not called for within such reasonable time, the company may store it in a secure warehouse, and from thence its liability as a carrier ceases and that of warehouseman is assumed.
    . 2. Reasonable time.—The reasonable time within which the owner must apply for his baggage when it is transported by the same train on which he himself travels, is directly after its arrival and transfer to the platform, making due allowance for the confusion occasioned by the arrival and departure of the train and for the delay necessarily caused by the crowd on the platform,
    3. Sauk.—A passenger should not prolong the strict and rigid liability of a railroad company as a common carrier longer than is reasonably necessary under the circumstances and exigencies of the particular case, or for any purpose of his own convenience. If a party is informed that his baggage has not arrived on the train he came on and he gives no directions concerning it and no information to identify himself so notice of its arrival can be given, it is his duty to make inquiry for it the first convenient opportunity after the arrival of the next train and within a reasonable time.
    Appeal from the Circuit Court of Will county; the Hen, Chas. B. Blanchard, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. George J. House, for appellant;
    cited Merchants’ Dispatch Trans. Co. v. Hallock, 64 Ill. 284; C. & A. R. R. Co. v. Scott, 42 Ill. 132; Porter v. C. & R. I. R. R. Co. 20 Ill. 407; C., R. I. & P. R. R. Co. v. Fairclough, 52 Ill. 106; C. R. I. & P. R. R. Co. v. Boyce, 73 Ill. 510; 2 Redfield on Railways, Acc. 171, Sub. Sect. 3; Roth v. B. & S. L. R. R. Co. 34 N. Y. 548; L. C. & L. R. R. Co. v. Mahan, 8 Bush. 184; Onimit v. Henshaw, 35 Vt. 605.
    Messrs. Wing & Goodspeed and Mr. Wm. Mooney for appellees;
    cited C. & R. I. R. R. Co. v. Warren, 16 Ill. 505; C. R. I. & P. R. R. Co. v. Boyce, 73 Ill. 513; Van Horne v. Kernut, 4 E. D. Smith’s N. Y. R. 454; Bartholomew v. St. L. J. & C. R. R. Co. 53 Ill. 232; Stevens v. B. & M. R. R. Co., 1 Gray (Mass.), 277.
   Baker, J.

The appel lee, Richard Addizoat, purchased three tickets entitling him, his wife and children to transportation upon the railroad of appellant, from Chicago to Braidwood, and checked his baggage, consisting of two trunks, to the latter station.

He took passage with his family at 5 o’clock p. m., of August 10, 1882, on what is known as the Joliet and Dwight accommodation train, and arrived at Braidwood at thirty-five minutes after seven the same evening. Upon the arrival of the train he and his family went to the residence of one John Miles, about four hundred yards from the depot, where they remained that night and the next day. The two trunks arrived at Braidwood on the same train, and were put off on the platform of the depot, from whence they were transferred to the baggage room where they remained until six o’clock in the afternoon of the next day, when both they and the depot were destroyed by fire.

From the time of the arrival of the accommodation train on the evening of the 10th, to the time of the fire, four regular passenger trains on appellant’s road had arrived at Braidwood from Chicago; the first at 11:15 p. m., of the lOtli, and the others respectively at 2 and 11:15 a. m., and 3:05 p. m., of the 11th. The trunks were not demanded or sent for at any time during the 11th day of August.

The only material fact in the case that is really in controversy, is whether or not appellee, upon the arrival of the accommodation train at 7:35 p. m., of the 10th, called for his baggage.

We can hardly believe from the evidence in the record that the jury affirmatively found, as matter of fact, that there was a demand for the trunks, and especially so, as the instructions did not submit the case specifically upon that ground, but were to the effect the responsibility of the company as a common carrier terminated on the expiration of a reasonable time after the arrival of the baggage, and that “ the question of what is a reasonable time must be determined by the jury, in view of all the evidence and the facts and circumstances surrounding the transaction.”

Under this instruction the jury probably concluded that, although no demands were made on the 10th, yet, that as matter of fact, a reasonable time in which to call for the trunks had not expired at the time of the burning.

There is no testimony tending to prove the baggage was asked for on the evening of the tenth, except that given by appellee himself, and that is of so contradictory and unsatisfactoi-y a character, that but little reliance can be placed on it. It is in conflict with the evidence of the baggagefnan, and with his own statements'made^to Poston shortly after the fire, and with the inherent probabilities growing ont of the circumstances surrounding the transactions. There are also facts in the record tending strongly to prove the trunks were intentionally left at the depot for appellee’s own convenience, until such time as he should have made certain contemplated arrangements, and found a place to put them.

A railroad company is an insurer of the baggage of a passenger so long as the relation of a common carrier exists, and that, exists as to such luggage until its arrival and discharge at the place of destination, and until the owner has had reasonable time and opportunity to claim and take it away. If it is not called for within such reasonable time, then the company may store it in a secure warehouse, and from thence its liability as a carrier ceases and that of a warehouseman is assumed. C. R. I. & P. R. R. Co. v. Fairclough, 52 Ill. 106; C. R. I. & P. R. R. Co. v. Boyce, 73 Id. 510. In the case last cited, the Supreme Court said: “What constitutes such reasonable time and opportunity is a mixed question of law and fact, depending very much upon the particular facts of each individual case; but when the facts are undisputed it is purely a question of law.”

We understand the rule of law to be that the reasonalfe time, within which the owner must apply for his baggage^ when it is transported by the same train on which he himself travels, is directly after its arrival and transfer to the platform, making due allowance for the confusion occasioned by the arrival and departure of the train, and for the delay necessarily. caused by the crowd on the platform. C. R. I. & P. R. R. Co. v. Boyce, supra; Onimit v. Henshaw et al., 35 Vt. 605; Roth v. B. & S. L. R. R. Co., 34 N. Y. 548; L. C. & L. R. R. Co. v. Mahan, 8 Bush. 184; Bansemer v. T. & W. Ry. Co., 25 Inda. 435; Porter v. C. & R. I. R. R. Co., 20 Ill 407; Richards v. Railroad Company, Idem, 407.

Our conclusion is, that if appellee did not claim his trunks on the evening of the tenth of August, and they were placed in a secure baggage-room, then the company ceased to hold them as a common carrier, but held them only as a warehouseman, and is not liable in this action, which is based solely on the liability of a carrier.

Upon the theory that appellee is correct in his statements with reference to the transaction, and that he called for his baggage immediately after the arrival and departure of the accommodation train, the case presented is of somewhat more difficulty.

He states the answer of the baggage-man to his demand was, that the trunks were not there. The natural and reasonable, conclusion from the answer and the circumstances would be that there had been some failure to place them on the train in Chicago, and that they would be transported to the place of destination by the next regular passenger train from Chicago, which would be at 11:15 p. m.

As the case stood upon the answer of the baggage-man, the failure or false admission of failure of the company to comply with its duty to bring the luggage by the Joliet and Dwight accommodation, would excuse appellees from remaining at, .or returning to the depot, at a l.te hour of the night, and from dancing attendance upon the train due at two o’clock in the morning. But a passenger ought not to prolong the strict and rigid liability of a railroad company as a common carrier longer than isreasonably necessary ¡ nderthe circumstances and exigencies of the particular case; or for any purposes of his own convenience. Even if appellee was informed that the baggage had not arrived, yet as he .gave no directions concerning it, and no information to identify himself, so notice of its arrival could le given, it was his plain duty to have made inquiry for it the first convenient opportunity after the rrriv.d of the next Ira n, and within a reasonable time. He did not do this, and his conduct was unreasonable, and justifies the conclusion the trunks were left either for h's own accommodation, or from such a degree of negligence as shou’d preclude him from a recovery in the absence of negligence on the ] a-t of the company that would render it liable as a warehouseman. Stevens v. Boston & Maine Railroad, 1 Gray, 277, cited by appellee, v e do not regard as in point, as it differs in several of its material circumstances from the facts claimed to exist in this ease; there the goods were demanded in the afternoon, and not b 3ing delivered, were burned the night following, so there was no reasonable time and opportunity for a second demand; besides, the mistake being discovered in ten or ffte n minutes, no message was sent to the consignees, who w re well known, and moreover the answer to the tiu.ckman asking for them was that the goo Is bad already been delivered to some other truckman and were not there, which precluded the idea there was any understanding they were to be ca"ed for again.

It is urged that the baggage-man, by the false statement the luggage was not there, and his negligence in not making a right and true delivery when demand was made, continued the liability of the company as a common carrier until a reasonable time after the mistake or falsehood should be corrected by giving the owner notice of the receipt of the property at its place of destination.

This might be so, if the company had or was given such information as would enable it to make the notification; but the evidence shows the baggage-man did not know appellee, and was not notified either of the name of the appellee or where he might be found.

The law is not so unreasonable as to require an impossibility of any one. Upon the theory.of appellee’s account of the transaction, the plain intendment from all that transpired would be that he would call again for the trunks, and that no notice was expected or desired.

We think the verdict of the jury against the law and the evidence, and think it was error to refuse the motion for a new trial.

In any view that can be taken of the evidence, appellee has no cause of action; and the judgment is therefore reversed.

Reversed.


author: Welch, J.

text:
    Chicago, Burlington & Quincy R. R. Co. v. Archibald M. Rogers.
    Where the gravamen of the action is mere negligence, there can he no recovery where there is a want of ordinary care to avoid the injury.
    Appeal from the Circuit Court of Mercer county; the Hon. A. A. Smith,'Judge, presiding.
    Opinion filed December 4, 1885.
    On the 27th day of July, 1881, appellee, in copartnership with Dunn and Harvey, shipped five cars of cattle from Aledo to Chicago on appellant’s road, and by the terms of the contract of shipment, appellee received a pass or permit to accompany the stock on the same train, to take care of it, which he did, taking his son with him also for that purpose. At Mendota, the size of the train was increased to forty cars, each thirty-two feet long, which, with the locomotive, tender and caboose car, made the entire train 1,400 feet in length. On arriving at Leland, a station about twenty miles east of Mendota; and about sixty miles west of Chicago, about one o’clock at night, the train stopped, the locomotive being east of the depot, but far enough west of the east switch to allow west-bound trains to pass on the north side of the depot on the north main track (the road being double track west of TAand and single track east of there for some distance), and the rear end of the train being several hundred feet west of the west end of the depot grounds and west of the cattle guard, built to keep stock off the track, and which was also used as a culvert or waterway for the water to pass from the' south to the north side of the track, being about eight feet wide and about six feet deep. The conductor had gone forward to the depot to register his arrival and obtain orders, while the brakeman remained in the caboose car with the appellee and his son. After the train had stopped, appellee inquired of the brakeman where they were, to which he replied, l-< Lei and.” Appellee then asked the brakeman how long the train would remain there, to which the brakeman repl'ed, “ fifteen minutes to half an hour.” Appellee further inquired of the brakeman if he would have time to look after his stock, and the brakeman replied “ Tes.” Thereupon, the night being dark, appellee took his lantern and got Off the caboose car accompanied by his son, and, leaving the hrakeman in the car, went forward on the roadbed where the road was fenced on both sides, holding his lantern up so as to see his cattle in the cars, and not using his lantern to see whether the way he Avas going Avas safe; and on coming to the cattle-guard and culvert, fell into it and Avas injured. There Avas evidence that some stock trains stopped where this train stopped, and that some persons in charge of the stock on such other trains, got off of their trains at this point, and that nothing Avas said or done by those in charge of such trains, to prevent it.
    Trial on the foregoing facts. Verdict for appellee of $2,650; remittitur by appellee of $1,650, and judgment for appellee for $1,000 and costs. From Avhich judgment this appeal was taken. Various errors are assigned.
    Mr. II. Bigelow, for appellant.
    Mr. B. O. Taliafero and Messrs. Cornell & Morgan, for appellee.
   Welch, J.

We deem it unnecessary to. examine the various errors assigned. Under the Iuav and the facts in this case, no recovery for the appellee can be sustained.

It Avas said by Judge McAllister in the case of the C. & N. W. Ry. Co. v. Thorson, 11 Bradwell, 634, “ It seems to be a settled rule of laiv in this State now, that to enable a plaintiff to recover on the ground of mere negligence, as distinguished from the willful tort of the defendant, it must appear that the injured party exercised ordinary care, such as reasonably prudent persons would exercise under like circumstances, to avoid the injury complained of. C. B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 520-21, and cases there cited. There was no evidence in this case tending to show any willful tort on the part of the appellant, and it is plain that no such tort was relied upon as the basis of the action. The cause of action was predicated upon the mere negligence of the appellant.

We deduce from the foregoing rule of law, that where the gravamen of the action is mere negligence, there can he no recovery where there is a want of ordinary care to avoid the injury. The doctrine of comparative negligence as formulated by the Supreme Court of this State has no application in this case.

Applying this - rule to this case, can it he said that appellee exercised such care as a reasonably prudent person would have exercised under the circumstances to avoid the injury ? It was a dark night; appellee had a lantern which he might and could have used to see that the way he was going was safe, and if' he had used it, might have avoided the injury. It was a want of ordinary care on the part of appellee not to use his lantern to see the condition of the track on which he was going and whether it was safe, and as such would prevent a recovery by him. Even though it should be conceded that the appellant was guilty of negligence, which under the view we take of this case we are not called upon to decide, it was not wanton or willful. In our view, under the foregoing facts, no recovery can he sustained in favor of appellee.

The judgment in this case is reversed.

Judgment reversed.


text:
    Chicago, Rock Island & Pacific R. R. Co. v. Lawrence Harmon.
    1. Evidence.—Deceased witness.—A witness who was present at a former trial and heard the testimony of a witness since deceased, and could give the substance of such deceased witness’ testimony on such former trial but not the exact language. Held a competent witness to state what the testimony of such deceased witness was on the former trial.

      2. Same.—Stenographer's notes.—The notes of a stenographer taken contemporaneously with the testimony in a previous trial, if he can testify positively as to their accuracy, may be put in evidence to prove the testimony of a deceased witness.
    3. Common carrier.—Damages.—It is the well settled law of this country that a common carrier cannot by contract stipulate for complete immunity against his gross negligence; as to the right to stipulate for a partial exemption from his full liability, qumre; authorities cited pro and con.

    4. Same.—Agreed basis op damages.—But whether or not a common carrier has such right, there is nothing unreasonable or against public policy in an agreement entered into between the shipper and the carrier at the time of shipment fixing the value of the animal at the time and place of shipment as the basis upon which the damages are to be computed.
    Appeal from the Circuit Court of Peoria county ; the Hon. D. McCulloch, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Thos. F. Witheow and Mr. James C. Hutchins for appellant.
    Mr. Lawrence Harmon and Mr. George B. Foster for appellee.
   Welch, J.

This case was before this court at the May term, 1882, and is reported in 12thBradweIl, 54. It was again before this court at its December term, 1884,-and -was affirmed and is now before us again for consideration, a rehearing having been granted. We refer to 12 Bradwell, supra, for a statement of the case.

On the trial Mr. Wells, who was one of the attorneys, was called as a witness on the part of the appellant to testify as to the testimony given on a former trial of the cause by Mr. Ellwood then deceased, and testified as follows:

I am attorney for the company, and was such attorney in the trial of this case before. I remember Ellwood, who testified on the part of the defendant in that case.

Q. Do you remember generally the substance of his testimony as given at that trial ?

A. I think I remember the substance of all his testimony. There was an immense amount of cross-examination, and of course I do not remember the details, but I think I remember fully the substance of his testimony.

Q. Do you remember the fact of the attorney for the defendant in this case asking Ellwood this question: “ Do you know Hick Algiers?” and of his answering, “I know him when I see him.”

. (Objected to by plaintiff; objection sustained, and defendant then and there excepted.)

' Q. Do you, or do you not remember of the attorney for the defendant asking him this question, “Do you know-? ”

By the Court: To cut this matter short I will simply say that you have not yet laid the proper foundation for the testimony of this witness on his recollection of the substance of the witness’ testimony. I can not allow you to go on and repeat the questions and answers in the presence of the jury, and thus get before the jury indirectly what you could not get before them directly. You have not laid the proper foundation.

(To which ruling of the court defendant then and there excepted.)

Q. Did you ever see the letter now shown you ?

A. Yes, sir.

Q. In connection with whose testimony?

A. In connection with the testimony of Ellwood and others.

The Court: Is your recollection sufficiently distinct and comprehensive so that you can go on and detail the evidence of that witness without having the questions put to you?

A. I could detail the substance of his direct examination, and the substance of the-material parts of his cross-examination. It was a very long and rapid cross-examination, and there is a great deal in that, that I do not remember anything about.

Mr. Foster: Then I submit that it is manifestly improper.

The Court: It is not necessary to argue it. I think the rule is so strict in a case of this kind that the witness not only must be able to state the substance of the material parts, but also that which would go to impair his credibility, if any question of that kind were asked; and it is necessary that the witness should be able to state that he remembers all the testimony substantially; not merely the testimony upon material parts, but substantially all his testimony, because the credibility of the witness is a very important matter to go before the jury. I think I will have to exclude the whole of it.

(To which ruling of the court the defendant then and there excepted.)

Defendant offers in evidence in connection with the testimony of Ellwood, the letter marked Exhibit B, in regard to which the witness Algiers was interrogated. The letter is as follows:

“N. Algiers; I took from the C., R. I. & P. Bailmad one .bay mare and colt. I led the mare to the river and gave her all the water she wanted. I started with her td L. Harmon’s residence. I was at the house one hour before I noticed the mare was sick. I done all I could for her till Harmon come. When he come he throwed ice water all over her. I started for Doctor Price. When we got there Harmon was throwing water on her still. Harmon told me that she was the cheapest one he bought. I think he paid §100 for her. The mare was sweating a little when she came from the cars the next day. Harmon ordered me to take the mare and colt to his farm. I done so. When I got there with her Harmon ordered me to go to town and get some ice and throw ice water on her. I done so until the mare died. Harmon told me he would get twice the value of her.

H. Algiers.”

(Objected to by plaintiff as improper; objection sustained and defendant then and there excepted.)

Mr. Cratty: We expect to show by Mr. Frank Bradléy that he was present when that letter was written at the dictation of Algiers, and was read over to him by Mr. Ellwood.

It is apparent that the specific objection was that his recollection was not sufficiently comprehensive to allow him to testify as to what was stated by Ellwood. The objection was that the witness whs not competent, and the court having held upon the specific objection that he was not competent, no offer to show what such witness would testify to was necessary. In Rush v. Rock Island, 97 U. S. 639, at the second trial, the depositions of Connelly and Harson were offered to prove the contents of the depositions of Powers and Moore, which had been used on the former trial, these witnesses having died and their depositions having been burned. Connelly was the counsel for the defendant. He said he gave the main and principal points of the depositions of the deceased witnesses, and a^b the main and principal points of the cross-examination and reexamination of said Powers, as given when Powers’ deposition was taken. Harson stated that he remembered the substance of the testimony of each of these witnesses, but was not ab'e to give the exact language of either. The court in that case held there was no error in admitting this testimony. The precise language of the deceased witness was not necessary to be proven. To hold otherwise would, in most instances, exclude this class of secondary evidence, and in so far defeat the ends of justice. In Iglehart v. Jernegan, 16 Ill. 513, it was held that the substance of what a deceased witness had sworn to is proper, and that the precise words need not be proven.

Algiers had testified that he did not cause the letter signed N. Algiers to be written, and that he did not ask Ellwood to write a letter for him, and that he did not say in the presence of Ellwood and Bradley that wdien he took the mare from the car, he led her to the water and gave her all the water she wanted, and that he was at the house of Mr. Harmon one hour before he noticed the mare was sick, and that soon afterward he started to get Dr. Price, and when he returned, Mr. Harmon was throwing water on her still, and that Harmon told him she was the cheapest one he bought. He denied that he said that he thought Harmon paid $100 for the mare, and that when he took her to the farm, Mr. Harmon ordered him to get ice and throw ice water on her, and that he did so until the mare died. He says that the letter was not written at his dictation, nor read to him "afterward. That the colt was wet with sweat, but not sick. In view of the testimony of Algiers as to what he did and as to the condition of the mare when she was taken by him from the cars, and his specific denial of all connection with this latter, and of making any statements to Ellwood in regard to it, we hold, under the foregoing authorities, that Wells was a competent witness to state what Ellwood had testified to on the former trial. And the objection having been based upon that ground, we hold the court erred in sustaining the objection. And we are further of the opinion that the evidence was material.

Mr. Watson, the stenographer at the former trial, was called by appellant, and testified as follows:

“Am a stenographer. I reported the case of Lawrence Harmon v. The Chicago, Rock Island and Pacific Railway Company, tried at the December term; A. D. 1881, of the Peoria County Circuit Court. I took down the evidence given at that trial in shorthand, and afterward wrote it out in longhand. The manuscript now shown me and called here the bill of exceptions in the former trial, is the longhand transcript as taken by me. It was written by myself, and is in my handwriting. The testimony of Mr. Ellwood, commencing on page 2.19, was written out by me from my shorthand notes that were taken at said trial, and it is a full and correct statement of his testimony, to the best of my knowledge and belief. It is the substance of all that he testified.

Defendant offers in evidence bill of exceptions prepared and filed in the case of Lawrence Harmon v. The Chicago, Rock Island and Pacific Railway Company, January 26,1883, embodying the evidence of various and sundry persons, taken at the former trial of this case, and offers to read in evidence therefrom the testimony of Mr. Ellwood, commencing on page 249 of said bill.

(Objected to by plaintiff, because the proper foundation has not been laid for its introduction. Objection sustained.)

In the case of Rush v. Rock Island, supra, the court say; The living witness may use his notes taken cotemporaneously with the testimony to be proved in order to refresh his recollection, and thus aided he may testify to what he remembers, or if he can testify positively to their accuracy, they may be put in evidence. In Mineral Point R. R. Co. v. Keep, 22 Ill. 9, it was said: What better evidence of the testimony of a deceased witness could there be than correct notes of it at the time. It fulfills one of the most important requirements of the law that the best evidence shall be produced in the power of the party to produce. * * * It seems to us that such minutes sworn to be correct are far better and more satisfactory evidence than the imperfect and fleeting recollection of any man could possibly be, and we do not feel the force of a reason which shall require us to disregard a higher for an inferior grade of testimony. . In Brown v. Luehrs, 79 Ill. 575, it was said: “It is urged that the stenographer’s transcript of the evidence, taken at the common law trial, was improperly admitted. as evidence. The shorthand writer who reported the trial, testified'that he wrote up the testimony; dictated it to two copyists; that the transcript of the testimony of the witnesses was correct; that they were sworn and testified as therein stated. We think the transcript was properly admitted.”

Under the statement made by Watson, the stenographer, and in the light of the foregoing authorities, we hold that the transcript of Ellwood’s evidence should have been admitted and that the court erred in excluding it.

It is insisted by counsel for appellants, 1st. That under the contract of shipment, appellee’s right of recovery for damages was limited to the sum of §100 for each animal injured or lost; and, 2d, it is further insisted that if this view is not sustained, the measure of appellee’s damages for the injury .or loss of the animals should be computed at the value or cost of the same at the time and place of shipment.

The rules of appellant provide that “The line will not assume liability over one hundred dollars on horses and valuable live-stock except by special agreement.” And that “ agents are not allowed to receive and ship such valualfle horses or other animals, until a proper contract or release is signed by the owner or shipper thereof.” The memorandum of the agreement with the shipper in this case was:

“Chicago, Bock Island and Pacific Bailwáy.”

“Bo. of cars.

“224.

Station, July 5, 1881.

“Memorandum of an agreement, made and concluded this day by and between the Chicago, Rock Island and Pacific Railway Company, of the first part, by their station agent, at the above named station, and W. J. ¡Neely, of the second part, witnesseth : That whereas the sa-id Chicago, Rock Island and Pacific Railway Company transports cattle, hogs, sheep, horses, lambs, calves or other live-stock, only as per tariff in use at this date for stock per car load, or when taken less than a car load as per special rates, published on the tariff prices, and in accordance with the foregoing rules and regulations,

“It is further agreed, that in case of any damage or loss to any of said stock, while in course of shipment, the same, so far as it shall fall upon said company, shall be computed at the value or cost of the same at the place of shipment under this bill of lading.

“And this agreement further witnesseth, that the said party of the second part has this day delivered to said railway company-one (1) car load o£ 1 mare and colt, to be transported to Peoria station on the conditions above expressed.

“ D. M. Hall, Station Agent.

“(Duplicate.) “W. J. ¡Neely.”

At common law a common carrier was held as insuring the safe arrival at its destination of the commodity intrusted to it for transportation against all acts except what were denominated acts of God and the public enemy, but this strict accountability did not include the condition of the article at the time of its arrival as compared with its condition when received. And in case of animals it is not an insurer against injuries or death caused by their nature which could not be guarded against by foresight and vigilance.

Judge Higby, in Illinois Central R. R. Co. v. Jonte, 13 Bradwell, 425, says : The right of a railroad company to exempt itself from liability for loss or damage to goods delivered to it for carriage, except when the same is caused by the neghgence of its own servants, is settled by a number of well considered cases in this State. Indeed the doctrine is carried beyond this in the case of Arnold v. Illinois Central R. R. Co., 83 Ill. 275. Justice Scholfield in delivering the opinion of the court says: The .doctrine is settled in this court, that railroad .companies may contract or exempt themselves from liability on account of the negligence of their servants other than that of gross or willful, and to sustain the same cites the following cases: I. C. R. R. Co. v. Read, 37 Ill. 484; Same v. Morrison, 19 Ill. 133; W. T. Co. v. Newhall, 24 Ill. 466; Adams Express Co. v. Haynes, 42 Ill. 89. The same is held in St. Louis and I. M. Ry. Co. v. Larned, 10 3 Ill. 294. The distinction is here drawn between gross negligence and slight. As to gross negligence, protection by contract is not allowed — as to slight negligence, immunity may be given by agreement. If a common ca rrier can not by contract stipulate for complete immunity against gross negli gence, can it by contract stipulate for a partial exemption from his full liability in cases of gross negligence ?

There is little if any conflict of authorities that a common carrier can not by contract stipulate for immunity against his gross negligence. It may be considered as the settled law of this country. As to the right to stipulate for a partial exemption from his full liability, the authorities are not uniform-The right is sustained in the following cases:

Hart v. Railroad Co., 5 Fed. Rep. 151; Harvey v. Railroad Co., 74 Mo. 538; Squire v. N. Y. Central R. R. Co., 98 Mass. 239; 137 Mass. 72; Newburgh v. Howard, 6 Phila. 174; Hopkins v. Westcott, 6 Blatchford, 64; Belger v. Dinsmore, 51 N. Y. 166; Magnin v. Same, 56 N. Y. 168; 62 N. Y. 33; 70 N. Y. 410; South and North Ala. R. R. Co. v. Henlon, 52 Ala. 606; Same v. Same, 56 Ala. 368; Muser v. Holland, 17 Blatch. 538. The opposite rule is sustained in Southern Express Co. v. Moon, 39 Miss. 822; Chicago, St. Louis and N. O. R. R. Co. v. Abels, 60 Miss. 1017; U. S. Express Co. v. Blackman, 28 Ohio State, 144; Black v. Goodrich Transportation Co., 55 Wis. 319; Kansas City R. R. Co. v. Simpson, 30 Kan. 645; Moulton v. St. Paul Ry. Co., 81 Minn. 85; Galt v. Adams Express Co., 48 Am. Rep. 742.

In our view of this case there was no error in the refusal of the instruction limiting appellant’s liability to $100. For under neither view of the law, as above stated could that instruction have been sustained. , It was in violation of the rule of the railroad company itself, that the line will not assume liability over 8100 on horses and valuable live stock “ except l>y special agreement” for in this case the special agreement provided, “ It is further agreed that' in case of any damage or loss to any of said stock, while in course of shipment, the same, so far as it shall fall upon said company, shall be computed at the value or cost of the same at the place of shipment under this bill of lading.”

When the limitation of liability was based on a rule, we would concur in what is said in 12 Bradwell, supra, as to the necessity of assent thereto. As to the second proposition, that the measure of damages for the injury or loss of the animals should be computed at the value or cost of the same at the time and place of shipment, it presents another and different question. All the authorities referred to above which hold that a common carrier of persons or property can not by agreement, however ]51ain and explicit, even partially exempt itself from liability in damages to the party injured when such injury is the result of gross negligence of the carriel’, its servants or agents, base their ruling upon the ground of public policy. And those courts which hold that it may partially limit its liability also hold that such limitation must he reasonable.

Under the view we take of the agreement in this case we are not called upon nor is it necessary for us to decide as to which of these conflicting rules is correct, as we hold the agreement entered into between the shipper and the appellant at the time of the shipment is valid under either view of the authorities above cited. The value of the animal at the time and place of shipment was fixed as the basis upon which the damages were to be computed. There was nothing unreasonable or against public policy in this limitation, fixing the value at the time and place of shipment as the basis upon which the damages should be computed. The jury should have been instructed to compute the damages on this basis.

Bor the errors herein indicated the cause is reversed and remanded.

Reversed and remanded.


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    Kankakee & Seneca R. R. Co. v. Frank Horan.
    1. ' Injury to .chops;—In an action to recover damages against a railroad company for hindering a party from cultivating portions of his farm, and for injury to and destruction of his growing crops by the flooding of his lands occasioned by a diversion of the water from an ancient water course, for the lands he is prevented from tilling he is entitled to recover the rental value.
    2. Same—Damages.—For the lands where the crop is not up, the damage should he estimated upon the basis of the rental value and the costs of seed and labor in breaking up and planting or sowing. Where the crop is up, or more or less matured, the party may recover in addition to the above, the Cost of any labor bestowed after the planting or sowing; or at his option he may recover the value of the crops, at, the time of its destruction, with the right to the purchaser to mature the crop and harvest or gather it. Where the crop is injured but not destroyed, the assessment should be commensurate with the depreciation in value.
    Appeal from the Circuit Court of Grundy county; the Hon. Chas. Blanchard, Judge, presiding.
    Opinion filed December 5, 1885.
    Mr. G. S. Eldrbdge, for appellants ;
    as to damages, cited C. R. I. & P. R. R. Co. v. Smith, 111 Ill. 363; O’Connor v. Fond du Lac, etc., Ry. Co., 52 Wis. 526; Conwell v. S. & N. W. Ry. Co., 81 Ill. 232; Randle v. Pacific R. R. Co., 65 Mo. 333; Mills on Eminent Domain, § 226; 1 Sutherland on Damages, 191; Keithsburg, etc., R. R. Co. v. Henry, 79 Ill. 290; C. & E. I. R. R. Co. v. Loeb, 8 Bradwell, 627.
    Mr. S. C. Stough, for appellee;
    as to measure of damages, cited 1 Sutherland on Damages, 17; People’s Ice Co. v. Steamer Excelsior, 44 Mich. 236; Folsom v. Apple River Log Driving Co., 41 Wis. 608; Taylor v. Bradley, 39 N. Y. 129; Smith v. Chicago, etc., R. R. Co., 38 Ia. 518; Richardson v. Northrup, 66 Barb. 85; C. & R. I. R. R. Co. v. Ward, 16 Ill. 522; Ogden v. Lucas, 48 Ill. 492; Chapman v. Kirby, 49 Ill. 211.
   Baker, J.

This was an action on the case hy appellee against appellants to recover damages for hindering him from cultivating portions of his farm, and for injury to and destruction of his growing crops, hy the flooding of his lands, alleged to have been occasioned by a diversion of the water from an ancient watercourse.

There was a verdict and judgment for appellee for §1,176.10 and costs.

We understand the rules deducible from the decisions in this State, as to the measure of damages in such cases as this5 to be as follows:

1st. That for the lands plaintiff was prevented from tilling, he is entitled to recover the rental value.

2d. That for the lands where the crops were not up, the damage should be estimated upon the basis of the rental value, and the costs of seed and labor in breaking up and planting or sowing.

3d. That in cases of destruction where the crops were up or more or less matured, plaintiff should recover as is last above stated, and in addition thereto the cost of any labor bestowed after the planting or sowing; or, at his option, he may recover the value of the crop at the time of its destruction, with the right to the purchaser to mature the crop and harvest or gather it.

4th. That where the crop was injured but not destroyed, the assessment should be commensurate with the depreciation in value.

C. & R. I. R. R. Co. v. Ward, 16 Ill. 522; Olmstead v. Burke, 25 Id. 86; Green v. Williams, 45 Id. 206; Cilley v. Hawkins 48 Id. 308; Ogden v. Lucas, 48 Id. 492; Chicago v. Huenerbein, 85 Id. 594; Booker v. V. & C. Ry. Co. 101 Id. 333.

In this case the trial court gave no instruction to the jury stating the rule that should control them in estimating the damages, but simply instructed them that they iC should find for the plaintiff in such an amount as in their opinion, under the evidence, would fully compensate plaintiff for the injury.” This was virtually telling the jury to base their assessment upon any theory suggested by any of the testimony admitted in evidence.

• There was no evidence before the jury as to the rental value of the lands, or respecting the cost of seed, or cost of the labor bestowed on the crops, or as] to the values, at the time of injury or destruction of the crops of corn, hay, buckwheat, and millet, with the right to mature and harvest or gather. There was, however, very considerable incompetent testimony bearing on the question of damages admitted ■over the objection of appellants. It consisted of statements as to the average crops in ordinary seasons, and surmises as to what plaintiff’s farm would have yielded per acre with good husbandry, and other matters of a similar nature. In the absence of circumstances that would justify a verdict for smart money, all that a plaintiff would, in any event, be entitled to recover, would be the value of the crop at the time of destruction with the right of use of land as above stated, but an assessment upon the basis of the testimony before the jury would give the plaintiff the full benefit of a matured crop, and that too of a crop which is dependent upon a great variety of contingencies. The recovery would thus he for probable profits that might have been made had the land not been overflowed; and such damages are too remote and speculative. The damages should be ascertained by evidence of facts existing at the time of destruction and the application of the judgments of witnesses to those facts.

Begarding many of th¿ items of injury, there was no competent data in evidence upon which to base an assessment of damages; and much of the testimony before the jury was admitted upon a wrong theory as to the measure of damages. The instructions of the court, when applied to such testimony, must have misled the jury. We are unable to find competent evidence in the record to sustain a verdict for the amount of damages assessed.

Proof of the statements of Cox, a subordinate agent or officer, were not admissible to show the relations existing between the appellant corporations and their joint liability.

Otherwise than as indicated in this opinion, the ruling of the court below on the very numerous questions raised by the assignments of error, were, in our opinion, substantially correct. Constitution of 1870, Art. 2, Sec. 13; T. W. & W. Ry. Co. v. Morrison, 71 Ill. 615; J., N. W. & S. E. R. R. Co. v. Cox, 91 Ill. 500.

The judgment is reversed and the cause remanded. ■

Beversed and remanded.


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    Charles W. Burroughs v. Daniel Comegys.
    EvrDEXCK—In April appellee contracted with appellant to deliver a certain quantity of corn in return for some oats. In May appellant made a similar contract with one G. Appellee brought an action against appellant for fraud in mixing sand with the oats. G. was allowed to testify as to the sand foun 1 in the oats sold him. Held, that such evidence was inadmissible. The transactions were separate and distinct, and proof of the character of one was no proof of the character of the other.
    Appeal from the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed December 5, 1885.
    On the 17th day of April, 1882, a contract was made between the appellant and appellee, that appellee should deliver to the appellant forty bushels of corn, and should receive from the appellant sixty bushels of oats in exchange therefor. In pursuance of this contract, on the same day appellee delivered to the appellant on his premises, a wagon load of thirty-one bushels and sixty-six pounds of corn, and received from appellant per weight thirty-seven bushels and twenty-six pounds of oats. The oats were on that day taken home by appellee and by him left in his wagon covered by some old boards. The oats were received on Monday and remained in the wagon until the latter part of the week, untouched and unnoticed except a few handfuls that were used to pack some eggs, when two sacks of them were taken out of the • wagon by appellee and sown. The appellee during the following week continued to take oats from the wagon into his field and sow them until upwards of twelve bushels had thus been used and no sand or dirt had been observed in them by the appellee or any member of his family, so far as this record shows. On Monday, May 1, 1882, one John Graham made a contract with appellant to furnish appellant forty bushels of corn, for which he was to receive from the appellant sixty bushels of oats. On the second day of May, Graham delivered to the appellant at his house some twenty-five bushels of corn and received from the appellant some sixty bushels of oats. On the morning of the fourth of May, Graham, with a bag of the oats which he received from appellant, went over to the farm of appellee to interview him and ascertain if there was sand in the oats he had received from appellant. lie had examined appellee’s oats in the wagon on the day before and states that he found sand the same as in his own that he had got from appellant. Up to this time appellee had not discovered any sand in the oats. After being informed by Graham of the presence of sand in his oats, appellee made an examination of his oats in his wagon and found some sand in them. This was some nineteen days after he had received them. The amount of sand claimed to have been in the oats was a pound to the bushel. The number of bushels of oats delivered was ascertained by filling a bushel and a half basket and weighing it and multiplying that weight by the number of basketfuls.
    Appellee instituted this suit before a justice of the peace, which suit by appeal was taken to the circuit court, where a verdict was rendered and judgment entered in favor of the appellee for three dollars and seventy-five cents.
    This appeal is prosecuted to reverse that judgment and various errors are assigned.
    Mr. S. 0. Stough, for appellant;
    cited 1 Best on Evidence, 475, § 251; Holcombe v. Hewson, 2 Camp. 391; 1 Greenleaf on Evidence, §§ 51, 52; Vason v. Beall, 58 Ga. 509; Tucker v. Peasley, 36 N. H. 180; Blackwell v. Hamilton, 47 Ala. 472; State v. Lepage, 157 N. H. 245; Griffith v. Payne, 39 Eng. Com. L. 34.
    Messrs. Jobdon & Wing, for appellee;
    as to the admissibility of Graham’s evidence, cited Bump on Fraudulent Conveyances, 583; Cary v. Hotailing, 1 Hill, 311; 1 Phillips on Evidence, note 333, p. 452, Cowen & Hill’s Ed.; Erving v. Motley, 7 Bing. 543; Rowley v. Bigelow, 12 Pick. 307; Jackson v. Zimmerman, 12 Wend. 299; McElwee v. Rutton, 2 Bail. 128; Lowry v. Pinson, 23 Am. Dec. 140; VanKleek v. Leroy, 4 Abb. N. S. 433; Hersey v. Benedict, 15 Hun, 287; Miller v. Barber, 66 N. Y. 568; People v. Shulman, 80 N. Y. 375; Viele v. Goss, 49 Barb. 98; Lansing v. Russell, 13 Barb. 521; French v. White, 5 Duer, 259.
   Welch, J.

Were it not that there is something more involved in this suit than the pecuniary amount of the judgment to the appellant, we should feel inclined to apply to this suit the maxim de minimis non curat lex. But finding that the questions presented by this record involve what is of more value than silver or gold to the appellant, his character for honesty and fair dealing, we have given to the case that consideration which the gravity of the question involved seems to demand.

Appellee’s cause of action is based upon the claim that appellant deliberately and intentionally put the sand and dirt in the oats for the express purpose of defrauding appellee in the weight of the oats; that was the only effect it could have upon the oats. The evidence upon this subject is very unsatisfactory, and it was absolutely essential to a fair and impartial trial, that no incompetent evidence should be admitted, the effect and tendency of which might be to influence and bias the minds of the jury.

On the trial, appellee examined John Graham, who testified : “ I got oats from the defendant in the spring of 1882; he said I got sixty-two bushels, but I did not think that I got over forty bushels.”

The evidence upon and concerning this transaction between the witness and defendant, was here objected to by defendant’s counsel; but the court overruled the objection and admitted the evidence, to which ruling of the court the defendant, by his counsel, then and there excepted.

“G-ot the oats from the middle bin, in door yard, near the house. I discovered sand in the oats I got. Hoticed sand first when I was sowing them. I did not put the sand in them. The wind blew the sand in my eyes, whiskers and on my coat and in my hair, when I was sowing them. This was the firstl discovered the sand. It wasabout two hours afterl got the oats that I discovered the sand. A tin water pail was set in the wagon on the oats, and when it was picked up sand was found on the bottom of the pail. ^Noticed sand on my coat and in my hair. My boy put some oats in his mouth to chew and found sand in them.”

This evidence was objected to by defendant as it was coming in, but the court overruled the objection and defendant excepted.

“In the evening I went to unload the oats, for I thought it was going to rain, and I saw sand in the bottom of the wagon. Got my oats after Comegys got his. Thought there were about two hundred bushels left in the bin. I got into the bin to help load the oats and defendant told me to get out of the bin, that he would shovel the oats himself, and I got out of the bin. It was bank or mason’s sand. He has sandy land down on the bottom. We unloaded about one half of the oats in a crib at the house and drove the balance into the field. Discovered sand within two hours. I got my oats after Comegys got his.”

The foregoing evidence concerning the oats that witness got from defendant, together with the evidence about sand being in them, and the time and manner of discovering the sand, was all objected to by defendant at the time it was coming in, but the court overruled all such objections and the defendant excepted.

Some oats and sand were shown witness which he stated were the oats he got from Burroughs, and that they'came from his wagon, and were some which he scooped up with his hand. They were then shown to the jury under objection of defendant, which objection the court overruled and the defendant excepted.

George Graham was also introduced and testified against the objection of appellant to the same transaction of his father with the appellant. The admission of this evidence by the court against the objection of appellant is one of the errors assigned. It is insisted by the counsel for the appellee that there was no error in admitting this evidence, and we are referred to Bump on Fraudulent Conveyances, 579, 583; 1st Hill, 311; 13 Pick. 307; 12 Wendell, 299, and to other authorities, as sustaining the action of the court in the admission of this class of evidence. We have examined these authorities, and the rule deducible from them is, that in cases to prove the fraudulent intent of a debtor in a conveyance, or of a vendee in a purchase, evidence of other fraudulent transfers at or about the time of the transfer in controversy is competent. As in the case in 1st Hill, 311, where the vendor sought to recover goods from the vendee upon the ground that the purchase was fraudulent, that no title passed. And in 12 Wendell, 299, where the question was whether a voluntary deed was fraudulent, evidence of other contemporaneous transactions of the grantor and grantees in relation to other portions of property was held admissible. In all the cases referred to the question was the intent with which the substantive act was done.

How the transaction of appellant with Graham, on May 2d, can in any manner indicate what his motives, purposes or intentions were on April 17th toward appellee, we are unable to perceive. What appellant did to Graham on May 2d, in no manner tends to prove what he did with appellee on April 17th. They were separate and distinct transactions, and proof of the character of one was no proof of the character of the other. It is an established rule that the evidence offered must correspond with the allegations, and be confined to the point in issue. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the reason is, that sncli evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead them. 1st Greenleaf Ev., Secs. 51, 52; 1 Wharton Ev., Sec. 29; 1st Best Ev., Sec. 251, page 476.

In the view we take, it was only competent for the appellee to show what was the condition of the oats that he received from the appellant, and in doing this it was competent for him to show what the condition of the oats was in the bin from which his was taken, just before and after he took his, as tending to show what the condition of his was when it was taken by him, from the bin. Graham and his son were competent to testify as to its condition when seen by them in the bin, and their testimony should have been limited and confined to, that. They should not have been allowed to testify concerning the barter and trade between Graham and the appellant for the bats and corn, what was said at the time or subsequently, in relation thereto, nor the circumstances attending that transaction. The effect of such testimony was to prejudice the minds of the jurors against the appellant. As said by Lord Ellenborougli, in Holcombe v. Henson, 2d Camp. 391, This is res inter alios acta. We can not here inquire into the quality of different beer furnished to different persons. ' The plaintiff might deal well with one and not with the other.” The objections made by the appellant during the trial, to the admission of all of this evidence as to the trade of Graham with the appellant for oats, what was said at the time and subsequently, and all the circumstances attending the transaction should have been sustained, and the court erred in overruling the objections thereto, and in admitting it in evidence. Inasmuch as this case will have to he reversed and remanded for another trial, we will refrain from commenting on the evidence further.

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

Reversed and remanded.


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    FIRST DISTRICT.
    No. 46-2160.
    Samuel Sheller, etc., v. Britton E. Cluck
    Opinion filed Nov. 25, 1885.
    A suit in assumpsit to recover the amount of a promissory note for $500 and interest, purporting to have been executed by the defendants to the plaintiff. No complaint is made of any of the rulings of the court at the trial, nor of any of the instructions given to the jury. The court being of opinion that the verdict was not contrary to the preponderance of the evidence the judgment is affirmed.
    Attorneys for appellant, Mr. James Siiaw, Mr. E. E. Dutciier and Mr. Nelson Fletcher ;
    for appellee, Mr. J. M. Hunter.
   Opinion by Bailey, P. J. Judge below, John Y. Eustace.


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    No. 58-2172.
    The People, etc., v. John H. Steinway et al.
    Opinion filed Nov. 25, 1885.
    A suit on constable’s bond for failure to returnan execution within ten days after the return day thereof. On the justice’s docket of the suit in which the execution was issued appeared the following entries : u July 19, 1883. On affidavit of plaintiff execution ordered and issued to constable Steinway. And on the 27tli day of September, 1883, returned by him, no property found.” “ Execution returned to court October 9, 1883, indorsed as above.” On the trial by the court below, without a jury, the court found for the defendant. This court affirms the judgment on the ground that the entries on the justice’s docket would seem to indicate that after the return of the writ by the constable, September 27th, it was taken away by some one not named and again returned to the justice while holding court on the 9tli day of October, and thus the return shown by the docket is of itself a sufficient answer to the alleged breach of the bond.
    Attorney for appellant, J. F. Snyder ;
    for appellee, Thomas Shirley.
   Opinion by Bailey, P. J. Judge below, Lorin C. Collins.


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    SECOND DISTRICT.
    No. 1389.
    John H. Conlon v. Eliphalet W. Blatchford et al.
    Opinion filed Dec. 4, 1885.
    This was an action brought by appellees below to recover on a promissory note given for flax seed. One Dement had sold the seed to appellants in the spring, taking a note payable to appellees for the value thereof, said note containing a further agreement to sow the seed on suitable ground, harvest the same and sell it to appellees at twenty cents less than market rates, etc. Dement at the same time took an agreement signed by appellants and himself, to the effect that he, Dement) would furnish a certain kind of machine for threshing said crop at fifteen cents per bushel, and would take all their straw at nine and six dollars per ton according to quality. Dement failed to furnish any machine for threshing, and the result was the seed was very poor by reason of not being threshed in time, and much was wasted, besides the straw being a total Joss. The appellant defended against the note by endeavoring to hold appellees bound by the contract of Dement and offset damages by reason of Dement’s failure to fulfill his contract relative to threshing, etc. The court below treated the two contracts as not being one and the same, and held that the. appellees were not bound by the Dement contract, as from the papers themselves it appeared that Dement was agent .for appellees in the matter of selling the seed, and acted for himself alone in the contract as to the threshing and the straw. The judgment of the court below is affirmed.
    Attorneys for appellant, Messrs. C. J. & O. 0. Johnson;
    for appellees, Mr. "W. Stager.
   Opinion by Lacey, P. J. Judge below, J. 1VI. Bailey.


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    No. 1391.
    Lewis Steward v. Annie H. Miller.
    Assumpsit by appellee against appellant on a promissory note executed by the latter to the former, resulting in a verdict and judgment for §2,968.33. The plea stricken from the files was, in substance, a plea of want of consideration, and all the testimony admissible under it was also admissible under the plea the note was executed without any good or valuable consideration, filed the preceding January, and upon which issue had been taken. The action of the court was right; the plea was useless and incumbered the record. There was no error in overruling the motion for a continuance; the affidavits upon which it was based, were insufficient and showed no just and adequate grounds for the postponement of the trial. In relation to the absent witnesses, Pierson and Lull, it may be remarked that all the statements contained in the several affidavits may be true, and it yet be a fact that appellant well knew from the time suit was instituted, in May, 1883, not only the place of residence of said witnesses but also that he could prove by them most, if not all, of the material matters mentioned in the affidavits, without taking any steps to secure their attendance or their depositions. Some statements are made in the affidavits respecting the equitable ownership of the moneys secured by the note. That instrument is the individual contract of appellant, executed by him to appellee; the sum mentioned therein is payable to her, and any suit for its recovery must be prosecuted by her, or in her name. If there is any just claim that the beneficiary interest in the proceeds of the note is vested in the estate of Margaret Eldridge, deceased, that fact will be ascertained and proper adjudication thereof had in the citation proceedings commenced in the county court, and now pending, on appeal, in the circuit court. The application for leave to file, by the next morning, further and additional affidavits in support of the motion for a continuance, was addressed to the discretion of the court below, and its decision thereof is not the subject of review in this court. McBain v. Enloe, 13 Ill. 76. It is assigned as error that the court tried the case with the second, third and fourth pleas unanswered. There is nothing in the point. Replications were on file traversing the material allegations of each of said pleas. It is not requisite that a replication should specifically deny each and every particular fact stated in a plea, when all the facts so stated constitute hut one ground of defense ; in such case the plaintiff may deny collectively or in general terms. Holland v. Kibbe, 16 Ill. 133. Finding no errors that are well assigned, the judgment is affirmed.
    Opinion filed Dec. 4, 1885.
    Attorney for appellant, Mr. Randall Cassem;
    for appellee, Mr. A. J. Hopkins, Mr. H. J. Aldrich and Mr. F. H. Thatcher.
   Opinion by Baker, J. Judge below, Chas. Kelluh.