text:
    John S. Russell et al. v. Altha Fanning, Adm'x, etc.
    1. Voluntary Conveyance—When in fraud of cbeditobs.—1 2The general rule is that a voluntary conveyance, when the grantor is indebted at the time of its execution, is presumptive'evidence of fraud, and a fraudulent intent will be presumed from the fact that the party conveying was indebted at the time the conveyance was made, and as to pre-existing creditors every conveyance not made on a consideration valuable in law, is void. The want of a valuable consideration is only presumptive evidence of fraud, and may be rebutted by evidence to the contrary.
    2. Advancement to childben—When fbaudulent—Rule.—The rule by which the fraudulency or fairness of a voluntary conveyance to children is ascertained, is based upon a eom.para1a.ve indebtedness, _ or on the pecuniary ability of the grantor, at the time of the conveyance, to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their prospects of payment. This general rule is subject to the exception, however, that it may be shown that the grantor was in prosperous circumstances, and unembarrassed; that the gift to the child was a reasonable provision according to his state and condition in life, and enough is left for the payment of the debts of the grantor.
    3. Practice—Issue out of chancery—Finding by jury—Not conclusive.—In the trial of a feigned issue out of chancery, the chancellor may act upon or reject the finding of the jury, and have it re-tried or proceed with the trial and find the issues himself, and the evidence maybe considered and the verdict of the jury reversed in the appellate court, the same as though there had been no trial of a feigned issue by the jury.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Ketcham & Hatfield, and Mr. T. Gr. Taylor, .for appellants.
    Messrs. Epler & Callón, Mr. Oscar A. DeLeuw and Mr. H. Gr. Whitlock, for appellees;
    that oral evidence may be admitted to enlarge the consideration in a deed, cited Murray v. Smith, 1 Duer. 412.
    That the acknowledgment of a consideration in a deed is prima facie evidence of its payment, as against any person impeaching it collaterally: Thalhimer v. Brinckerhoff, 6 Cow. 90; Jackson v. McChesney, 7 Cow. 360; Carpenter v. Freeland, Lalor, 37.
    A bill of exceptions cannot be taken on the trial of a feigned issue out of chancery, but if at all, only on a motion for new trial: 2 Daniel’s Chancery Pr. 1305; Johnson v. Harman. 96 U. S. 372; Ex. Parte Story. 12 Pet. 343.
    There was no error in dismissing the bill: Jordan et al. v. Matthews et al. Supreme Court of Illinois, Jan. T. 1878.
   Lacey, J.

The bill in this case sets out that on the 15th Sept., 1869, Sampson, Wm. and Samuel A. Fanning executed to Andrew Russell, agent of complainants, their promissory note for .$2,097, due in one year from date, and on the 8th day of March, 1871, their other note to same payee, due in 18 months from date, each hearing interest at the rate of ten per cent, per annum, for $9,000. That at the time of the execution of said notes, Samuel Fanning was the owner in fee of the following described real estate, to wit: (1.) FT. W. ¿ Sec. 9, No. Í3, N. R. 10 west, 160 acres; (2.) N.E. ¿sec. 9, same town and' range; (3.) W ¿ S. E. 9, same town and range, 80 acres; (4.) N-end E. ¿ N. W. Sec. 35, 13, 18; (5.) N. V. N. E. 6, T. 13, N. R. 9—all of which was unincumbered.

That on Aug. 23,1871, Sampson Fanning and wife executed a deed of trust to Morrison & Dodd to secure payment of note of that date for $2,000 on the W. ¿ N. W. ¿ Sec. 9, T. 13, R. 10; note to become due Aug. 25,1874.

That Nov. 25, 1871, the said Sampson Fanning borrowed of Hiram K. Jones $4,000, and he and his wife executed their mortgage to secure the same on the E. ¿ N. W. Sec. 9, T. 13, R. 10, and W ¿, N. E. 8, T. 13, R. 10; note due three years after date.

That on the day following, said Sampson Fanning and wife (Nov. 24, 1874,) executed their several deeds of conveyance to their respective sons as follows: (1.) To George W. and ¥m. F. Fanning for N. W. 9, T. 13, R. 10, and 54 acres off of E. side of the E. ¿ N. W. 8, same town and range, consideration mentioned in deed as follows: cash in hand $1,000 and $12,000 deferred payments. That $6,000 was made up of the two above-named mortgages and the other $6,000 in four notes each, $1,500, due 24th Nov., 1876; that the four notes were payable to his daughters, Anne Creswell, Mary E. Phelps, Matilda J. Spencer and Margaret R. Reaugh; deed called exhibit “ A.” (2.) Tó Wm. F. Fanning 53 acres off of the north end W. ¿, S. E. Sec. 9, T. 13, R. 10, and N. end east half N.W. Sec. 35, in T. 13 R. 10; also N. W. N. E. for ¿ Sec. 6, T. 13, R. 9, and Lot 4, B. 7, in Chamber’s Addition to Jacksonville, for the pretended sum of $3,500; deed marked Exhibit “B,” (3.) To Andrew J. Fanning, the W. ¿, N.E. 8, and 26 acres off of the W. side, E. ¿ N.E. Sec. 8, and 27 .acres off of the S. end of the W. S. E. J-, See. 9, T. 13, ¡R. 10, for the pretended sum of $3,500—called Exhibit “ II.” A vendor’s lien was reserved in this deed to secure two notes of $1,500 each, to his two daughters, Sarah A. Fanning (now Donald), and Caroline Fanning—said notes also due live years from date. That at the time the said Wm. and Samuel A. Fanning, who signed the said Eussell notes with Sampson Fanning, were insolvent, that the said Sampson Fanning, at about that time, disposed of all his personal property, so that he was entirely insolvent.

The bill charges the lands were worth $16,000; that each of the above conveyances were made without any valuable consideration, in fraud of complainant’s rights. That the deeds were not recorded till March 6, 1873.

That on June 9, 1874, complainant recovered judgment in the Morgan county Circuit Court against Sampson, Wm. and Samuel A. Fanning for $8,057.90; that in 1874, execution Was issued thereon and returned “ no property found.” That on Dec. 8,1874, the lands embraced in the Morrison and Dodd mortgage were sold and purchased by Andrew Eussell. That the mortgage executed to Jones was in process of being foreclosed. That the said deeds were executed to his children as advancements, and without valuable consideration, and were fraudulent and void. Prays that said lands be subjected to sale for the payment of said judgment, subject to the Jones mortgage.

Defendants Sampson, Altha and George W. Fanning, and Wm. F. and Andrew J. Fanning, answer, admitting most of charges as to the judgment and deed, and charge that the interest on said notes to the daughters of Sampson Fanning was annual, and made payable to the latter. Setting up that there was an incumbrance on said land by mortgage to Eliza Thomas for $1,650. That said George W. and Wm. F. paid it off in pursuance of the contract of purchase between them and their father. Aver that they, G. W. and Wm. F., paid to Sampson Fanning $5,000 cash, and assumed the $6,000 in the Morrison and Dodd and Jones mortgage, and $9,000 note.

That on Dec. 8,1874, the W. i", N.W. I, S. 9, T. 13, E. 10, was subject to purchase made by Sampson Fanning for George and Wm. Fanning, on ¡Nov. 18, 1850, and by purchase from Sampson Fanning, ¡Nov. 1,1861, 'and subject to their peaceable possession since Nov., 1861, and payment of taxes since 1863; charge that George W. and Wm. F. Fanning have paid $9000 of the indebtedness on the trust deed and mortgage, and grantees in said deed have paid all the taxes since for ten years on 400 acres of said land since 1863.

That originally and at the time Sampson Fanning purchased said lands, George W. and Wm. F. furnished about one-half the money that purchased said lands.

That George W., Wm. and Andrew J. Fanning worked on said lands for a number of years in improving the same, with a verbal understanding and agreement that at some future time that Sampson would convey in fee, as compensation for such money and labor, to each of the respondents, George W., Wm. F. and Andrew J. Fanning, an 80-acre tract of said land; accordingly each one took possession of an 80-acre tract of said land: George, of his, in Dec., 1854; Wm. in Nov., 1861; Andrew, in March, 1869; and since then each one has had undisturbed and continuous possession, with the necessary acts of ownership, etc.

The answer of J ames M. Epler avers that the notes to Sarah A. and Caroline Fanning are signed by Andrew J. Fanning. That the notes to the other daughters are signed by George W. and William Fanning; that all the notes draw ten percent, interest, payable annually to Sampson Fanning, and are all secured by vendor’s lien on the real estate described.

That the notes payable to Caroline, Sarah, Mrs. Phelps and Mrs. ¡Reaugh, were indorsed to him for value received, and that he is a holder without notice of fraud or collusion.

The court below made up an issue out of chancery, and submitted the question to the jmy to find what the consideration of the several deeds were, and whether Sampson Fanning, at the time of the conveyances, had other property sufficient to pay his debts.

After trying the issue, the jury found as to “Exhibit A,” the deed by Sampson Fanning and wife to George W. and Wm. F. Fanning, that the. consideration was $1,000, cash and four notes of $1,500 each, being $6,000. That as to “Exhibit B,” executed by the same grantors to "Win. Fanning, the consideration was cash $1,300, and cash of George Fanning, $583.

That as to “ Exhibit H,” the deed by same grantors to Andrew J. Fanning, the consideration was, cash $500, and two notes, $1,500 each; and the jury found that at the time the said conveyances were executed (Nov. 24, 1871,) Sampson Fanning had other property sufficient to pay his indebtedness. The evidence shows, and in fact there is no dispute but that the notes referred to in the finding of the jury, were the same no.tes executed by the Fanning sons to their sisters, set out in the pleadings.

The testimony of all goes to show that these notes were intended as an advancement to them by their father, and was to be their distributive share of the estate. It will-appear that the consideration mentioned in all the deeds was $20,000; taking from this amount the notes given to the six daughters and the Morrison and Dodd & Jones mortgages, in all $15,000, and there remains $5,000, which would be $500 more than enough to give each one of the sons $1,500 each.

In all probability this was about the division of the estate that was intended to be made, for it would hardly be supposed that Sampson Fanning would cut off the three sons without anything. Yet it is contended that all this balance was paid by the sons and no portion given to them. All the circumstances of the case are opposed to such a claim. Sampson Fanning only reserved to himself the interest on the notes intended for his daughters for five years and until his death. The consideration named in the deed, exhibit “ A,” is $13,000. This, it is asserted, is made up of four $1,500 notes assumed to be paid to the daughters, the Jones mortgage of $4,000 and the Morrison and Dodd trust deed of $2,000, and one thousand in cash. The $1,000 George W. Fanning claims to have paid to Eliza Thomas, who held a mortgage on one portion of the land, and insists that it was his father’s debt, and that his father accounted to him for it in the settlement for the land described in deed “ A.”

James Thomas, husband of Eliza Thomas, testifies positively that this money was loaned to George W., and was the latter’s own debt, and that in discharging it he only paid his debt. Sampson Fanning was only indorser on the note. At one time Thomas demanded, security on the note, when Sampson Fanning replied that he was very willing to secure it; that he had a piece of land he intended to give the boys, and he would just put it in and secure the debt.

It appears, then, that no valuable consideration was paid for this deed by George W. and William F. Fanning. The Morrison and Dodd mortgage and the Jones mortgage were satisfied by the sale of the land on which they were respectively secured, as appears from the evidence.

The claim set up by George W., Wm. F. and Andrew J. Fanning, that many years ago they had advanced money and done work on portions of the land, and that each had been promised an 80-acre tract, and had taken possession of portions of the land each, seems to be disproved by the testimony of George W. himself; that at or about the time the above conveyances were made the Mill Co. owed Sampson Fanning about $6,000, which was discharged by offsetting their claim for advances on the land. This witness claims that it did not enter into the considerations of the deeds. Evidently it did not. The jury finds in case of Exhibit “ B,” the consideration to be $1,300 cash, paid by George W. Fanning out of the $3,500 claimed.

We are satisfied from the evidence that the jury did right in rejecting such claim. They only did not go far enough, and reject the balance. The money item “ Cash of George, $583,” is a portion of the money claimed by George to have been paid on the Thomas indebtedness, which was his own debt. It will be seen that this item could not have been turned, as claimed by George W. as a debt against Sampson Fanning, for the reason that he did not owe it, and could not accept it as payment from Wm. F. Fanning by giving credit to George W. on the Thomas account, leaving Wm. F. to pay George.

The evidence fails also to show that the item of $1,300 was paid by George for Wm. as claimed. The evidence of George on that point is vague and uncertain, and he is unable to give any satisfactory account of it. Cyrus Fanning, who took the acknowledgments of the deeds, and for some two hours after heard a good deal of • talk about the matter, neither heard anything about the payment of money or saw any paid. No other witness testifies to or knows anything about it. 'Not one of the family testifies to it but him. He has been mistaken in other material points in his evidence, and is more than likely mistaken in this. Wm. F. is not called to testify to this payment, who ought to know if he made it.

The only remaining deed is “ Exhibit H,” executed to Andrew J. Fanning. The jury find that $500 in cash and $3,000 in the notes were paid for that. The only evidence to show the payment of this $500 is the evidence of George W. Fanning, who swears it was paid by his brother, but did not see it done, and cannot or will not tell how he knows it was paid. He is wholly uncorroborated by Andrew, who might have been a witness, or by any one else.

This land has been all conveyed wholly without any valuable consideration. The finding of the jury that the debtor, Sampson Fanning, had remaining enough property to pay all his debts, we do not regard as being warranted by the evidence. It is true he had some personal property left, but not near enough to pay the debts against him, even the unsecured ones, and all his personal property was given to his children, the next spring after these conveyances, which left, him without any means save his money borrowed of Jones, if he had any. When he died in September, 1876, he had no property and was utterly insolvent. The doctrine as to voluntary conveyances as against pre-existing creditors, laid down by the Supreme Court of this State, is that all such conveyances are void. The general principle is that a voluntary conveyance, when the grantor is indebted at the time of its execution, is presumptive evidence of fraud; and a fraudulent intent will be presumed, from the fact that the party conveying was indebted at the time the conveyance was made, and as to pre-existing creditors every conveyance not made on a consideration valuable in law is void. This general rule is subject to some exceptions. If it bo shown that the grantor was in prosperous circumstances and unembarrassed; that the sift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor, the want of a valuable consideration is only presumptive, not conclusive evidence of fraud. It may be met and rebutted by evidence on the other side. Moritz v. Hoffman, 35 Ill. 553. The true rule by which the fraudulency or fairness of a voluntary conveyance is to be ascertained in this respect is founded on a comparative indebtedness, or in other words, on the pecuniary ability of the grantor a.t that time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their prospects of payments. Kipp v. Hanna, 2 Bland, 33. This doctrine was approved by the Supreme Court in the case of Emerson v. Bemis et al. 69 Ill. 537. The court say: “ where qualification has been admitted of the general rule that voluntary conveyances are void as to existing creditors, this is the tenor of authority in that respect.” See, also, case of Matthews v. Jordan, Jan’y term, 1877, record page 280 of Supreme Court, Springfield.

In this case the debt of complainants existed to the amount of seven thousand dollars. The debtor had property not to exceed two or three thousand, consisting of farm implements and stock on farm, and the $4,000 in cash obtained of Jones. The $2,000 obtained of Morrison & Dodd had gone into the mill. The $4,000 was being used up for his living; most of complainants’ debt had more than a year to run before due. This of itself shows that it was morally certain that the complainants’ debt could not be paid out of what would remain. The debtor, Sampson Fanning, was getting old, and about to retire from active business.

Besides there were the mortgage debts amounting to $6,000, upon all of which he was personally liable. Clearly these conveyances cannot be upheld under any of the exceptions laid down as a rule by the courts. *

It is claimed, however, that there is no proof that Win. and Samuel A. Fanning, the principals on the complainants’ notes, were insolvent. The return on the executions show that they have been insolvent ever since judgment was rendered in favor of complainants; besides, under the rule laid down by the Supreme Court, if it is desired to bring this cause within the exception, it devolves upon the other side to show that they were solvent.

It is insisted that the court below was bound by the finding of the jury on the feigned issue unless appellants had made motion to set it aside and to grant a new trial, and' that this court cannot review the findings of the jury unless such motion were made and exception taken to the overruling of the motion. That is not the rule in this State. All the evidence before the jury is heard in open court; the judge hears it as well as the jury. “In this State the practice has been for the Chancellor in all cases where there has been a trial of a feigned issue, to act upon it or reject it, and have it re-tried, or disregard it and proceed with trial and find the issues himself.” Meeker et al. v. Meeker, 75 111. 261. The evidence and the verdict of the jury may he reversed in this court, the same as though there had been no trial of a feigned issue by the jury.

The notes due the six daughters were an advancement, and as we have seen, fraudulent and void as against complainant’s claim, and while in the hands of the original payees, or of Sampson Fanning, or an indorsee with notice, or without value, they might be defended against by the makers in case the considertion failed; and hence the makers could not set up a valuable consideration for the conveyances in the signing of these notes.

If they passed into the hands of innocent holders, so as to make them liable on the notes, at all events they then might be regarded as having paid value for the conveyances.

James M. Epler sets up in his answer that he'is such holder without notice for value. His own evidence shows that as to four of the notes, he received them on the 6th of March, 1875 (this suit was commenced March 29, 1875); that he at the time paid nothing for the notes. They were.given, he claims, to secure him in raising money to pay off the Jones mortgage. He has never paid off the mortgage, but purchased the land at sale under decree of foreclosure, Aug. 14, 1875, thus leaving the note in his hands as holder, without consideration at that time.

The other two notes were not in his possession at the time this suit was commenced. What he may have done since with the notes could not affect the rights of complainants, nor affect their priority of lien on the land. We therefore think that the decree in this case ought to be reversed and the canse remanded; that decree should he rendered in this case setting aside the conveyances marked Exhibits“A,” “B” and “H,” so far as the rights of complainants are concerned; that the land and lots should he sold subject to the incumbrance of the Jones mortgage, and to the rights of those claiming under the foreclosure proceedings in relation to said mortgage, and except the land sold under the Morrison & Dodd trust deed. That the vendors’ liens retained for the benefit of the six notes spoken of as given to the daughters of Sampson Fanning, should be postponed to the rights of complainants. The court below is therefore ordered to proceed in accordance with this opinion.

Decree reversed and cause remanded.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Matthew T. Scott v. The People of the State of Illinois.
    1. Revenue—Suit eob amount due on eobeeited pbopebtt—What ■must be shown.—In a suit brought to recover the amount clue on forfeited property, the plaintiff must prove the amount clue; that the property has been forfeited, and that all the steps necessary to work a forfeiture have been taken. To create a forfeiture there must have been a judgment, a process issued for the sale of the property, an offer for sale, and a failure to sell for want of bidders.

      2. Bond eob a deed—Pabties.—The lots in question were listed and assessed in the name of appellant, he having a bond for a deed of the same from T. and W., reciting therein that on payment of the balance of tfie purchase money and all the taxes assessed against the lots, a deed should be executed, etc. HeM, that this bond, if it could confer any right of action on, T. and W. against appellant on a failure to pay the taxes, could only be construed as a covenant by appellant with them to pay to the State a debt for which they were liable, and for the breach of which they alone could sue.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.

      Messrs. Stevenson & Ewing, for appellants.
    Mr. J. W. Fifeb and Mr. Bobebt B. Pobteb, for appellee;
    that the tax is a personal deht and liability, and the lien attaches to other than the identical property taxed, cited Hill v. Figley, 23 Ill. 418; Dubuque v. I. C. R. R. Co. 39 Iowa, 56; Geneva v. Cole, 61 Ill. 397; Ryan v. Gallatin Co. 14 Ill. 78; Dunlap v. Gallatin Co. 15 Ill. 7; Baltimore v. Howard, 6 Har. &. J. 383; Dugan v. Baltimore 1 Gill. & J. 499; Burroughs on Taxation, 4, 253; Cooley on Taxation 300.
    Aside from the provisions contained in Sec. 230, distress is not the only way to collect taxes: Geneva v. Cole, 61 Ill. 397; Ryan v. Gallatin Co. 14 Ill. 78; Dunlap v. Gallatin Co. 15 Ill. 7.
    The contract in the bond is for the benefit of those to whom the taxes are due, and can be enforced by them: Beasley v. Webster, 64 Ill. 458; Steele v. Clark, 77 Ill. 471; Brown v. Strait, 19 Ill. 88; Eddy v. Roberts, 17 Ill. 505; Bristow v. Lane, 21 Ill. 194.
   Davis, J.

This was an action of debt commenced by appellee to recover from appellant an amount claimed to be due on forfeited property. The court below rendered a judgment in favor of appellee for $345.88 and costs of suit, from which judgment appellant appeals, and assigns for error the rendition of said judgment against him.

The suit was brought under section 230 of chapter 120 of the Bevised Statutes, entitled “ Bevenue,” which provides that “ The county board may at any time institute suit in an action of debt in the name of the People of the State of Illinois, in any court of competent jurisdiction, for the amount due on forfeited property.”

On the trial below no evidence was offered by appellant, and judgment was rendered on the following evidence produced by appellee: First. A list of lands and town lots situated in the county of McLean, etc., on which the taxes remain due and unpaid for the year 1876, which list embraces four town lots listed in the name of appellant, and which list is accompanied by the affidavit of the collector required by*law. Second. The record of a judgment rendered by the County Court of McLean county against the lands and lots in said county delinquent for the taxes levied and assessed thereon for the year 1876, and for special assessments, back taxes due for former years, and costs, etc., which judgment covers the said four lots listed to appellant. Third. A list of lands, town and city lots, in McLean county, forfeited to the State in 1877 for taxes; and Fourth. A bond for a deed from Toms and Weed to appellant for the conveyance to him of said four lots, with others, on payment of the balance of purchase money and the payment of the taxes which might thereafter accrue on said land. To all of which evidence appellant at the time objected, and preserved his objections by exceptions taken at the proper time.

The only question which we deem necessary to notice, is whether the foregoing evidence sustains the judgment rendered by the court below.

Section 230 above cited permits such suits to be brought to recover the amount due on forfeited property. Without determining the question whether, in such suits, it is necessary for the plaintiff to go behind the judgment and prove title in the defendant and an assessment of the property against which the judgment is rendered, it is clearly incumbent on him to prove the amount due and that the property has been forfeited, and that all the steps necessary to work a forfeiture have been taken. To create a forfeiture, there must have been a judgment, a process issued for the sale of the property, an offer of the property for sale, and a failure to sell for want of bidders.

Section 194 of same Chapter, page 291 of Eevised Statutes of 1874, provides that, The County Clerk shall before the day of sale make a record of the lands and lots against which judgment is rendered, which shall set forth the name of the owner, if known, the description of the property, the total amount of judgment on each tract or lot, and the year or years for which the same is due, in the same descriptive order as said property may be set forth in the judgment book, and shall attach thereto a copy of the order of the court, and his certificate that such record is correct. Said record so attested shall be the process on which all real property or any interest therein shall be sold for taxes or special assessments, as well as the record for the sale of such property.”

Section 201 of same chapter provides that, The collector in person or by deputy, shall attend at the court house in his county on the day specified in the notice ****** and then and there between the hours of * ' * * proceed to offer for sale separately and in consecutive order, each tract of land or town or city lot,” &c.

Section 203 provides that, “ Every tract or lot so offered at public sale and not sold for want of bidders, shall be forfeited to the State of Illinois.”

And section 199 provides that “ all tracts or lots forfeited to the State at such sale, shall be noted on said record,” referring to the record specified in section 194.

In this case only one of the steps necessary to be taken to create a forfeiture was shown in evidence, and that was the judgment rendered by the County Court. No process authorizing the sale, no offer to sell, no sale for want of bidders and no forfeiture to the State were shown. There was an entire failure to show the existence of those facts necessary to he proved, and which were required to be made matters of record by the provisions of the several sections above referred to.

There appears a paper in the record as offered in evidence, headed “ A list of lands, town and city lots in McLean county forfeited to the State in 1877, for taxes,” but where it comes from is not shown. There is no certificate of any clerk attached to it showing it to be a copy of any paper or record of a court. It gives the numbers of certain lots, but whether in Bloomington or some other city or town in McLean county, does not appear, and no persons.are indicated as being the owners of the lots specified, or in whose names listed. It comes far short of meeting the requirements of sections 194, 199 and 203, and proves nothing.

The bond of Toms and Weed to appellant for a deed, introduced in evidence, is under seal, and the rule that the person for whose benefit a contract is made may maintain an action in his own name upon it, although the consideration does not move from him, applies to simple contracts only.

In case of specialties, the rule is that where there is a covenant with one person to pay another a sum of money, the suit should be in the name of the former. Gautzert v. Hoge, 73 Ill. 30; Sandusky et al. v. Neal, (ante 624) decided at this term of this Court.

The bond in question, if it could confer any right of action on Toms and Weed against appellant on a failure to pay the taxes, could only be construed as a covenant by appellant with them to pay to the State a debt for which they were liable, and for the breach of which bond the former alone could sue.

We think the evidence offered in the case does not sustain the judgment of the court below, and therefore it must be reversed and the cause remanded.

Judgment reversed.


text:
    David Lytle & Co. v. Calvin Scott et al.
    1. Homestead—Not subject to judgment lien.—Premises held, as a homestead are not subject to a judgment lien, and the homestead right with the fee in such lands can he transferred, notwithstanding a judgment existed against the grantor at the time the conveyance was made.
    2. Conveyance in ebaud oe cbeditobs—Deed to minob son.—A father may convey to his minor son portions of his estate, in quantities suited to his state and condition, provided he retains ample funds unencumbered for the payment of his debts, and such conveyance will he valid. But where a person, being at the time largely indebted, conveys portions of his property to a minor son in consideration of love and affection, and retains no property in his possession wherewith to pay his debts, such conveyance will be set aside as being in fraud of the rights of creditors.
    Error to the Circuit Court of Edgar county; the Hon. W. E. Helson, Judge, presiding.
    Messrs. Trogdon & Capps, for plaintiffs in error;
    that a creditor’s bill enures to the benefit of all who prove their claims, whether made parties or not, cited Pennell v. Lamar Ins. Co. 73 Ill. 303.
    That the conveyances were in fraud of creditors and void: Gould v. Sternburg, 84 Ill. 170.
    Messrs. Bishop & McKjhlay and Mr. O. V. Jaquitte, for defendants in error;
    that a minor can take real estate by deed, cited Masterson et al. v. Cheek et al. 23 Ill. 72; Magee v. Magee, 65 Ill. 255; 2 Washburn on Real Property, 567.
    A father may release to his minor son his wages: Partridge v. Arnold et al. 73 Ill. 600; Magee v. Magee, 65 Ill. 255.
    Defendant in error had a right to convey his homestead, without regard to the claims of his creditors: McDonald v. Crandall, 43 Ill. 231; Hume v. Gassett, 43 Ill. 297.
    The conveyance to the wife of defendant in error was not fraudulent: Phillips v. North, 77 Ill. 243; Patrick v. Patrick, 77 Ill. 555.
    It was executed and recorded before the debts in question were contracted: Wooldridge v. Gage et al. 68 Ill. 157; Pratt et al. v. Myers et al. 56 Ill. 23.
   Davis, J.

This was a creditor’s bill filed by appellants against appellees in the Circuit Court of Edgar county to set aside certain conveyances as being made in fraud of creditors.

Appellants charge that on the 16th of July, 1876, they recovered three judgments at law in justices’ court against Calvin Scott for $556.78 and costs of suit, on an indebtedness contracted by him on the 8th of October, 1875. That transcripts of said judgments were filed in the office of the clerk of the Circuit Court of said county, and that executions were issued on said judgments, and were returned “no property found,” and that the same remain unpaid. That said Scott has since the 8th of October, 1875, put out of his hands by some pretended conveyance, all his real and personal property, with intent to deceive, hinder, delay and defraud appellants of their said judgments and other creditors of their just demands, and that said fraudulent conveyances were made to Edith Scott, his wife, John L. Scott, his minor .son, and George Inge. Appellants pray that such fraudulent conveyances may be set aside, and also for general relief.

Calvin Scott in his answer admits the rendition of said judgments against him; that they remain unsatisfied, and that at the time they were rendered he had no real or personal property liable to execution. Denies that the conveyances to said Edith Scott, John L. Scott or George Inge were fraudulent. He admits that at the time said bill was filed, all the property real or personal owned by him was three horses, one wagon and harness, worth $165.00, one cow worth $25.00, and necessary household and kitchen furniture, worth not exceeding $100. The other appellees jointly answered, denying that any fraudulent conveyances were made to them or either of them. The cause was referred to the master to take testimony, and was • subsequently heard on the bill, answers, replication and the testimony reported by the master, and on the hearing the court found the issues for the appellees, and rendered a decree in their favor dismissing the bill at cost of appellants. This decree is assigned for error by appellants. The conveyances alleged to have been fraudulently made, are three in number. The first in point of time, was executed by Owen S. Jones to Edith Scott on the 15th of July, 1875, for the consideration as expressed of $2,000, and conveys 80 acres of land in Edgar county. The next was executed by Calvin Scott, and Edith Scott his wife, to John L. Scott, their son, on the 10th of May, 1876, for the consideration as expressed therein of the love and affection they have for their son, and conveys to him lots one and two in block seven in the town of Scotland. And the other was made by Sarena Dicken and William Dieken, to John L. Scott, for the alleged consideration of $610. This deed is dated 19th January, 1876, and was acknowledged one year thereafter, and was recorded 27th of February, 1877, and conveys twenty acres of land as particularly described in the deed.

It is claimed by appellants that these conveyances were voluntary, and were made by Calvin Scott to his wife and minor son while he was indebted to appellants and other creditors, and were made to delay, hinder and defraud them in the collection of their just claims. Appellees contend that these conveyances were not voluntary, and if they were, that Scott was not indebted to appellants at the time they were executed, and if indebted, that he retained enough property in his hands to reasonably .satisfy all his creditors; and further as to the deed to John L. Scott of lot two in Scotland; that such lot was the homestead of Calvin Scott, and was therefore exempt from execution, and the conveyance of it could not defraud’' appellants.

We think the evidence shows with sufficient certainty that lot two, in block seven, in the town of Scotland, conveyed to John L. Scott, was at the time of the conveyance worth less than $1,000, and was the homestead of Calvin Scott, and it being such, he had the undoubted right to convey it to whom he pleased, and a good title passed by the conveyance to his grantee.

In McDonald v. Crandall, 43 Ill. 236, it was held that the homestead right was not subject to a judgment lien. That the right could be transferred with the fee and the grantee would take it notwithstanding a judgment was in existence against the grantor when the conveyance was made.

We are also satisfied that when the conveyances from Calvin Scott and wife and Sarena and William Dicken to John L. Scott were executed, Calvin Scott was indebted to appellants in the sum of at least $1,050.

Scott commenced buying goods of appellants on the 15th of September, 1874, and continued making purchases from time to time until November 29th, 1875, when the last bill was made. Then his indebtedness, after deducting all payments, amounted to $1,130.43. By making some small payments he reduced this amount to $1,050.58, for which he gave his three notes dated on the 9th of March, 1876. These notes, after deducting a few payments subsequently made, were afterwards divided into smaller notes, and on these small notes the judgments were rendered by the justice on the 16th of June, 1876, as charged in the bill and admitted in the answer. These conveyances were also voluntary. The twenty acres were purchased and paid for by Calvin Scott, and at his request the deed was made to his son John, who was then a minor. No consideration passed from John Scott to his father for the twenty acres, or for lot one in Scotland. Calvin Scott in his testimony given as a witness, says: the only consideration for the deed from himself and wife to John Scott was the labor of his son previously performed. This labor the father was entitled to, as it was rendered by the son when, under age, and there is no evidence whatever to show that Calvin Scott voluntarily relinquished or forfeited his right to that labor. Magee v. Magee, 65 Ill. 256.

The evidence also establishes that when these deeds were executed, Calvin Scott, instead of retaining a sufficient amount of property to pay his debts, stripped himself of nearly everything he possessed. Under his direction, eighty acres of his land, costing $2,800, had been conveyed to his wife. His homestead had been deeded to his son, and except lot one and the twenty acres, he had nothing left which could be reached by execution but the remnant of a small stock of goods. The answer of Calvin Scott also admits that when the judgments were obtained by appellants, only thirty-six days after the deed from himself and wife to their son was executed, he had no real.or personal property liable to execution.

In Emerson v. Bemis et ux. 69 Ill. 541, our Supreme Court adopt the ruling of the court in Salmon v. Bennett, 1 Conn. 525, that Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed and not considerably indebted, and the gift is-a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unencumbered for the payment of the grantor’s debts, then such conveyance will be valid;” and in Kipp v. Hanna, 2 Bland, 33, that “ The true rule by which the fraudulency or fairness of a voluntary conveyance is to be ascertained in this respect, is founded on a comparative indebtedness; or in other words, on the pecuniary ability of the grantor at that time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their then prospects of payment.”

Testing these conveyances by the foregoing rules, they cannot be sustained, and we must therefore hold that the deeds from Calvin Scott and wife to John L. Scott of lot one in block seven, in the town of Scotland, and from Sarena and William C. Dicken to John L. Scott of twenty acres as described, are fraudulent and void, and must be set aside, and the lot and land thereby conveyed be held subject to the lien of appellants’ judgments.

As to the conveyance from Owen S. Jones to Edith Scott, executed on the 15th of July, 1875, we find that none of the goods purchased before that time formed any part of the indebtedness for which judgments were afterwards obtained. The goods purchased between September 15th, 1874, and October 7th, 1875, inclusive, amounted to $1,808.60, and that amount has long since been paid in full. All the other purchases were subsequent to the execution of the deed, and appellants have no claim whatever to this land as pre-existing creditors. We find no evidence that this conveyance was made to defraud appellants or other creditors of Calvin Scott, and therefore must sustain it.

The decree of the court below must be reversed and the cause remanded, with directions to the court to enter a decree consistent with this opinion.

Decree reversed.


author: Bailey, P. J.

text:
    First District
    March Term, 1886.
    The Tribune Company v. Hugh Bradshaw.
    1. Ratification—Presumption of.—To establish a case of authority by ratification, there must be some substantive proof; it must not rest upon probability or conjecture. When the intention with which an act was done is not clear, the presumption of ratification is far less strong where no relation of agency existed. Under the evidence in this case, held, that there was an entire absence of proof of any authority, either actual or apparent, in the party soliciting the advertisement, to bind the defendant by any contract, and that there was no subsequent ratification.
    2. Damages—Failure to insert advertisement.—The rule applicable to sales of personal property, viz., that where the article is one that can be bought in. the market the proper measure of damages for the breach of the contract to deliver is the difference between the contract price and the market price at the time of the breach, would apply to a ease for damages for a breach of a contract to insert an advertisement in a newspaper if an advertisement of like character was readily obtainable in the market.
    3. Damages when it is not possible to obtain article in market. —The rule that where one contracts to supply a thing which is not otherwise obtainable, the measure of damages for a failure to deliver is the difference between the-contract price and the cost of obtaining the best equivalent or substitute the purchaser can obtain on the occasion for the purpose, does net apply in this ease, because it does not appear that the advertisement, contracted for could not be readily obtained in the market at the contract price, and further, because plaintiff has never expended any sum of money in obtaining any such substitute or equivalent,

      Appeal from the Circuit Court of Cook county ; the Hon. John G. Rogeks, Judge, presiding.
    Opinion filed June 16, 1886.
    Messrs. Freeman & Walker and Mr. H. C. Bennett, for appellant;
    as to damages, cited Eisenlohr v. Swain, 35 Penn. St. 107; Marks v. Loomer, 4 Brad well, 198.
    Mr. Mason B. Loomis and Mr. Louis Munson, for appellee;
    as to ratification, cited Williams v. Merritt, 23 Ill. 626 ; Johnston v. Berry, 3 Bradwell, 256 ; Ford v. Williams, 24 N. Y. 359.
    As to measure of damages: Benton v. Fay, 64 Ill. 417; Hobbs v. London R. R. Co., L. R. 10 Q. B. Ill ; Paine v. Sherwood, 21 Minn. 225; Hamlin v. Great N. Ry. Co., 1 H. & H. 408; Ward v. Elkins, 34 Mich. 439 ; Collins v. Baumgardner, 52 Pa. St. 461; C. & R. I. R. R. Co. v. Ward, 16 Ill. 528; Weed v. Draper, 104 Mass. 28; Carli v. Seymour, 26 Minn. 276 ; Taylor v. N. P. R. R. Co.. 56 Cal. 317 ; Marsh v. McPherson, 105 U. S. 709 ; Strawn v. Cogswell, 28 Ill. 457.
   Bailey, P. J.

This was an action of assumpsit, brought by Hugh Bradshaw against the Tribune Company, to recover damages for the breach of a contract in relation to advertising. The evidence shows that in October, 1883, the defendant entered into a contract with one Palmer, by which, in consideration of a certain sum of money, it sold to him the use of one page of one issue of the Chicago Daily Tribune, and gave him permission to fill that page with such advertisements as he saw fit, reserving only the right to exclude such as might be objectionable in their character. Palmer was not an agent of the defendant, and had no business relations with the defendant other than those growing out of said contract. His scheme consisted in publishing a business index containing the names, business and address of the principal business men of Chicago, classified and arranged under proper headings; such index to occupy an entire-page of the Tribune and to be afterward printed on a large number of placards to be distributed and posted up in the hotels and railway stations of the principal towns of this and three adjoining States. The defendant had nothing to do with printing or distributing the placards, beyond merely giving to Palmer, at his request, the matrix from which the stereotype plate of the page containing the index was cast, it being of no further use to the defendant.

A few days prior to said publication, one Crawford called on the plaintiff at his place of business, claiming, as the plaintiff testifies, to represent the defendant, and having in liis possession certain printed blanks for receipts, purporting to be dated at the Chicago Tribune office, and after explaining.to the plaintiff said advertising scheme, solicited the insertion of his name, offering to make such insertion for $6. His representations to the plaintiff were, that said index waste be published once in the Daily Tribune, and then printed on 30,000 or 35,-000 placards, to be distributed as above stated. The plaintiff accepted said offer, paid Crawford the sum demanded and received from him the following receipt:

" Office of the Chicago Daily Tribune,
£i Chicago, October 11, 1883.
£i Deceived of Hugh Bradshaw §6 in full, for inserting his name and location in the Daily Chicago Tribune Business Index under the following heading: Tanks; and another list to be made under the head: Chicago—Her Leading Mechanical and Manufacturing Interests, etc.
£C J. A. Crawford, Agent.”

The evidence is uncontradicted that said Crawford was not the defendant’s agent and had no authority to make contracts on its behalf, and that the blank receipts in his possession were not furnished him by the defendant. Counsel seem to assume that he may have been in the employ of Palmer, but it is admitted that there is no evidence on that point.

Said index was published in one issue of the Tribune, and also upon a large number of placards, but for some reason the plaintiff’s advertisement was omitted therefrom. The plaintiff, noticing the omission, went to the defendant’s office and had an interview with W. L. Ogden, who was the defendant’s cashier and had general charge of its advertising business. At said interview the plaintiff asked Ogden if Crawford was authorized to receive subscriptions to the business index of the Tribune. Ogden replied by asking “ What have you got ? ’” The plaintiff then produced said receipt» which Ogden took and examined, and then turned and picked up one of said placards, of which a number were lying near him, and after looking at that, wrote in pencil, on the back of the receipt, “ Not published and no copy received,” and put the receipt in a drawer, and, turning to another drawer, took out $6 and offered it to the plaintiff. As he did that the plaintiff exclaimed, “ Hold on; I want that receipt.” Ogden then asked, “ What do yon want ? ” to which the plaintiff replied, I want that receipt.” Ogden then said, “I will refund yon $6.’” The plaintiff answered, “ I want more than six dollars” worth when I pay $6 for advertising.” Ogden then asked, “ What will you do about it? ” to which the plaintiff replied, “I will go back to the shop and send you a bill or give it into an attorney’s hands.” Ogden thereupon handed back the receipt which the plaintiff took and left.

It appears that, previous to this interview, Palmer had placed in Ogden’s hands some money, with which to reimburse any of his advertisers who, from any omission or error, were entitled to have their money refunded; and it appears that the $6 offered to the plaintiff by Ogden was a portion of that money. It also appears that Palmer had left with Ogden a few of said placards, to he handed to any of said advertisers who might call for them.

The jury, at the trial, found the issues for the plaintiff and assessed his damages at $357. Prom this sum the plaintiff remitted $6, and the court, after overruling the defendant’s motion for a new trial, gave judgment in favor of the^ plaintiff for $351 and costs.

The first question presented by the record is, whether the evidence is sufficient to sustain any recovery against the defendant. The contract upon which the action is based was entered into by the plaintiff and Crawford, and, in order to establish the defendant’s liability, it is incumbent upon the plaintiff to prove that Crawford was the defendant’s agent, with actual or apparent authority to bind it by such contract, or that his acts have been ratified by the defendant. But, as has already been remarked, he was not the defendant’s agent for any purpose. Ogden, the only witness who had any knowledge as to the actual relations between Crawford and the defendant, and the only one who was examined on the subject, testifies positively that Crawford was never in the defendant’s employ at any time, and in this his testimony is not contradicted. Nor does the evidence tend to show that the defendant clothed Crawford with any indicia of agency or held him out to the world as its agent. The only circumstance relied upon is the possession by Crawford of certain blanks purporting to have emanated from the defendant’s office; but Ogden, the only witness on that point, testifies that the defendant never printed any such blanks and never gave any 'such to Crawford, and in this he is not disputed. There is then an entire absence of proof of any authority in Crawford, either actual or apparent, to bind the defendant by any contract whatever. So far as appears he was an entire stranger to the defendant.

Was there proof of a subsequent ratification or adoption of the contract by the defendant ? It can not be said that any express ratification is shown, and we are inclined to the opinion that the evidence is too equivocal and unsatisfactory to warrant the jury in finding a ratification by implication. To establish a case of authority by ratification, there must he some substantive proof; it must not rest upon probability or conjecture, Evans on Agency, 64. And when the intention with which an act was done is not clear, the presumption of ratification is far less strong where no relation of agency existed. Abbott v. May, 50 Ala. 97. The only evidence of ratification, so far as we can see, is that which relates to the interview between the plaintiff and Ogden, and the foregoing narrative of the interview is in substance the one given by the plaintiff himself in his testimony. The only inquiry that he claims to have made of Ogden was whether Orawford was authorized to receive subscriptions to this Business Index. Ogden knew that the compiling and publication of such index was Palmer’s enterprise, and so far as he knew, the plaintiff, who was a stranger to him, had the same knowledge. The plaintiff presented himself as the holder of a contract with a person who was, presumably, one of Palmer’s agents, and Ogden had a right to assume, until he had some intimation to the contrary, that the plaintiff, before entering into such contract, had informed himself as to the nature of the enterprise and the party with whom he was contracting. Ogden may well have understood him as desiring to know whether Crawford was Palmer’s agent, such, under the circumstances, being the more obvious purport of the inquiry, and as the plaintiff vouchsafed no explanation and did not press the question, Ogden was justified in treating with him throughout upon that basis. He was not called upon to explain that Palmer was the principal in the Business Index enterprise, as he had a right to assume that such fact was known to the plaintiff already, and for the same reason Ogden’s failure to state how he came by the money which he offered to return to the plaintiff, has no special significance. It is time that where the evidence is doubtful and may admit of different interpretations, the question of ratification must be determined by the jury; but in this as in other eases, this court exercises a supervisory power over the verdicts of juries upon questions f f fact, and when we are of the opinion that, the evidence does not fairly warrant the conclusion to which the jury have rrived, it is our duty to set the verdict aside. This we are inclined to do in the present case.

But an equally serious difficulty arises upon the question of damages. The plaintiff assumes that by his failure to obtain an insertion of his advertisement in the Tribune Business Index, published by Palmer, he has been deprived of all opportunity of obtaining an advertisement of his business in that or a substantially equivalent manner. This assumption, however, seems to be wholly without proof. Ho evidence is pointed out, and we find none in the record, which tends to show that the same mode of advertising by means of a business index, printed in the Tribune or some other newspaper, and afterward printed and distributed in the form of placards, is not a matter of frequent occurrence. There is no evidence tending to show that the plaintiff might not, within a reasonable time after the publication of the index in question, have obtained an insertion of his advertisement in a similar placard published in substantially the same way and at the same price. The rule applicable to sales of personal property is, that where the article is one that can be bought in the market, the proper measure of damages for the breach of the contract to deliver is the difference .between the contract price and the market price at the time of the breach. Saladin v. Mitchell, 45 Ill. 79; Phelps v. McGee, 18 Id. 155; Smith v. Dunlap, 12 Id. 184; Sleuter v. Wallbaum, 45 Id. 43; Deere v. Lewis, 51 Id. 254; Kitzinger v. Sanborn, 70 Id. 146. We think that a rule entirely analogous to the foregoing should apply in determining the measure of damages for the breach of a contract like the one in suit, if it be true that an advertisement of like character was readily obtainable in the market. If no such advertisement could be obtained, so as to invoke the application of a different rule in the admeasurement of damages, it was for the plaintiff to show that fact. As he has made no such proof, it will be presumed that a similar advertisement could have been readily obtained at the same price, and such price must be held to constitute the measure of damages.

The defendant, however, produced and examined a witness who appears to have had considerable experience in the various modes and schemes of advertising, and attempted to prove by him what he claimed to be an equivalent mode of advertising and its cost. Said witness frankly admitted that he knew of no equivalent except an advertisement printed in a newspaper and upon placards, and distributed in the mode actually pursued in case of said Business Index; but on being asked what, in his opinion, would be the best substitute, assuming that there was no opportunity to obtain an advertisement of that kind, he answered that the only thing he knew of was for the plaintiff to print an equal number of his own business cards, and send them by mail and have them posted up in as many places as it was proposed to distribute and post up said Business Index. To print and distribute 30,000 cards in that manner, not including the expense of getting them posted up as proposed, would cost, according to the testimony of this witness, something over $350; and it is élearly upon this estimate that the jury fixed the amount of the plaintiff’s damages. There is no evidence that the plaintiff ever adopted this or, any other mode of advertising as an equivalent for the one provided in the contract, or that he ever contemplated doing so.

We do not call in question the rule, contended for by counsel for the plaintiff, that where one contracts to supply a thing which is not otherwise obtainable, the measure of damages for a failure to deliver is the difference between the contract price and the cost of obtaining the best equivalent or substitute the purchaser can obtain on the occasion, for the purpose. Such rule, however, is notapplicahleto the present case, for the reason already stated, that it does not appear that the advertisement contracted for could not be readily obtained in the market at the contract price, and for the further reason that the plaintiff has never expended any sum of money in obtaining any such substitute or equivalent. The cases where this rule of damages has been applied seem to be where the plaintiff, after the failure of the defendant to deliver according to his contract, has expended money beyond the contract price in procuring a substitute for the thing contracted for. Thus in Hinde v. Lindell, L. R., 10 Q. B. 265, the defendant contracted to supply to the plaintiff two thousand pieces of gray shirtings, to tie delivered on a certain day at a certain price. Shortly before the day fixed for their delivery the defendant informed the plaintiff that he would be unablelto perform his contract, upon which the plaintiff endeavored to get the shirtings elsewhere, but there being no market for them in England, that kind of shirtings could be obtained only by a previous order for their manufacture. The plaintiff, therefore, in order to fill a contract with his sub-vendee, procured two thousand pieces of other shirtings, of a somewhat superior quality, at an advanced price. It was held that there being no market for the article contracted for, and the plaintiff having done the best he could, he was entitled to recover the difference in price. A somewhat similar rule was applied in Barries v. Hutchinson, 18 C. B. (N. S.) 445, where the defend ant contracted to sell the plaintiff a quantity of caustic soda, a commodity not ordinarily procured in the market, and in consequence of the delay in delivery the plaintiff was obliged to pay a higher rate of freight and insurance. It was there held that the plaintiff was entitled to recover the excess of freight and insurance. In Hobbs v. L. & S. W. Ry. Co., L. R., 10 Q. B. 111, the plaintiff with his wife and two young children took tickets of the defendant’s railway from Wimbletonto Hampton Court by a midnight train. They got on the train but it did not go to Hampton Court, but to another place where the party were compelled to get out. It being late at night they were unable to find accommodations at an inn, or to get any other conveyance, and had no alternative but to walk to the plaintiff’s house, a distance of four or five miles, where they arrived at aboutthree o’clock in the morning. The jury assessed the plaintiff’s damages at twenty-eight pounds, eight pounds being for the inconvenience suffered from having to walk home, and twenty pounds for the illness of the plaintiff’s wife caused thereby. The court disallowed the damages for the sickness of the plaintiff’s wife, but held that the plaintiff was entitled to recover the damage occasioned by his being compelled to walk home.

In Hamlin v. G. N. Ry. Co., 1 Mees. & Wels. 408, a tradesman took a ticket to go by railway from London to Hull. On arriving at Grimsby, an intermediate station, he found no train ready to take him to Hull the same night, as there should have been according to the published time-bills. He slept at Grimsby, and in the morning paid one pound and four shillings fare to Hull. In consequence of the delay he failed to keep appointments with his customers, and was detained for many days. It was held that he would have been entitled to perform the contract at the expense of the railway company, yet, not having done so, he was not entitled to recover anything more than nominal damages in addition to the one pound and four shillings, and perhaps the cost of his bed, etc., at Grimsby.

In the present case, if the plaintiff had, in good faith, after the failure of the defendant to perform its contract, caused the same to be performed in the manner provided by its own terms, if that could be done, or if not, then in such manner as would, under all the circumstances, have formed the nearest and hest substitute or equivalent therefor, the rule of damages which he now seeks to invoke might have applied. The amount of his damages would then have become liquidated and fixed, and the only question would have been whether ho had adopted a proper mode of carrying out the contract at the defendant’s expense. But as the matter stands, the amount of his damages, outside of the contract price paid, is wholly uncertain and speculative. He has expended no money to procure a substituted performance of the contract, and there is nothing in the evidence suggesting the least probability that he will ever do so. His damages then consist first, of the contract price paid, and second, in a deprivation of the advantages or profits which he would have realized as a result of the advertisement if it had been published. There is no other conceivable loss or damage to which he has been subjected by reason of the non-performance of the defendant’s contract. Of these two items the first is fixed, certain and proximate, while the second is merely speculative and remote, and therefore incapable of being estimated or made the subject of a recovery at law.

For the reasons above set forth, we are of the opinion that the verdict is not sustained by the evidence, and for that reason the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Merchants National Bank v. Augustus W. Ritzinger et al.
    1. Banks—Lien upon depositor’s fund.—A bank has no such lien upon its depositor’s fund, held by it on deposit, as to authorize it to apply such fund upon an indebtedness or liability of its depositor not yet due.
    2. Checks—Holder mat sue direct.—A check drawn by a depositor upon his bank operates to transfer the sum therein named to the payee, provided the depositor has on deposit a sufficient sum to pay the check at the time it is presented for payment. In such case the payee may sue for and recover the amount of the check in his own name, and an assignment of the check carries with it the legal title to the amount of money therein named to each successive holder.
    Appeal from the Superior Court of Cook county; the Hen. Joseph E. Cart, Judge, presiding.
    Opinion filed June 16, 1886.
    This was an action of assumpsit, brought by Augustus W. and Frank L. Bitzinger, copartners under the firm name of Bitzinger & Co., against the Merchants National Bank of Chicago, upon a bill of exchange or check for $2,000, drawn upon the defendant by A. & J. S. C. Harrison, of Indianapolis, Indiana, payable to the order of William Haerle, and by him indorsed to the plaintiffs. Said bill of exchange or check bore date July 19, 1884, and was of the tenor following:
    $2,000. Two Thousand Dollars. Original.
    State of Indiana.
    Banking House of
    A. & J. C. S. Harrison,
    Indianapolis, July 15, 1884.
    Pay this our first check (second unpaid) to the order of William Haerle, two thousand dollars.
    To Merchants Nat’l Bank, Chicago, Ill.
    No. 130,263. A. &. J. C. S. Harrison.

      The evidence shows that said paper was presented to the defendant for payment by one of the plaintiffs and payment demanded on the 28th day of July, 1884, and that it was again presented to the defendant for payment on behalf of the plaintiffs by their attorney, on the 1st day of August, 1884, and that on both occasions payment was refused. A. & J. C. S. Harrison were bankers at Indianapolis, and it appears-that for several years previous to the transactions in question, there was a reciprocal account kept between said banks, grouping out of collections and remittances, said account being sometimes in favor of one bank and sometimes in favor of the other; and each seems to have been in the habit of drawing cheeks or drafts upon the other, if it saw fit to do so, whenever the balance was in its favor. At the date of the check sued on, said account showed but a small balance in favor of A. & J. C. S. Harrison, but on the following day it was increased to something over §1,900, and on the 28d day of the month it was further increased to $2,002.33. On the 18th day of July, 1884, A. & J. O. S. Harrison failed, and on the 26th day of- that month the defendant charged their account with the full amount of said balance, and applied the same upon a note for $5,000 which the defendant bank then held against Wm. B. Dickson & Son, maturing August 3, 1884, upon which A. & J. C. S. Harrison were liable as indorsers.
    Upon the trial before the court, a jury being waived, it was held that the defendant was .liable for the amount of said check and interest, and judgment was thereupon entered in favor of the plaintiff for $2,170 and costs. The defendant brings the record to this court by appeal.
    Messrs. Frank J. Smith & Helmer, for appellant;
    that the instrument in question is a foreign bill of exchange, and that being a foreign bill of exchange suit can not be maintained thereon by the holder until there has been an acceptance, cited Edwards on Bills and Promissory Notes, *161; Daniel on Negotiable Instruments, § 113 ; Downes v. Church, 13 Peters, 205; Morse on Banking, 526; Mandeville v. Welch, 5 Wheat. 286; Cowperthwaite v. Sheffield, 3 Comstock, 243.

      Messrs. Peckham & Brown, for appellees ;
    cited Fourth National Bank of Chicago v. City Nat. Bk. of Grand Rapids, 68 Ill. 398; Com. Nat. Bk. of Chicago v. Proctor, 98 Ill. 658; Nat. Bk. of Am. v. Indiana Banking Co., 114 Ill. 483; Munn v. Burch, 25 Ill. 35 ; Brown v. Leckie, 43 Ill. 497; Chalmers’ Digest or Law of Bills of Exchange, etc., Art. 254; 2 Daniel on Negotiable Instruments, 584.
   Bailey, P. J.

It is clear that the defendant had no such lien upon the funds of A. & J. C. S. Harrison, held by it on deposit, as authorized it to apply the same upon an indebtedness or liability of its depositors not yet due. Such is the settled law of this State. Fourth National Bank v. City National Bank, 68 Ill. 398; Commercial National Bank v. Proctor, 98 Id. 558 ; Bank of North America v. Indiana Banking Co., 114 Id. 483. The attempt to apply the amount of said deposit to the payment of the Dickson note, which had not yet matured, must be regarded as wholly nugatory, and as in no way affecting the rights of the holder of A. & J. C. S. Harrison’s check. For all the purposes of this suit it must be held, that at the time the check in question was presented for payment, A. & J. C. S. Harrison had standing to their credit, on their account with the defendant, the sum of §2,002.33.

The rule in this State, established by a long line of decisions, is, that when a depositor draws his check on his banker, such check operates to transfer the sum therein named to the payee, provided the depositor has on deposit a sufficient sum to pay the check at the time it is presented for payment. In such ease the payee may sue for and recover the amount of the check from the bank in his own name, and an assignment of the check carries with it the legal title to the amount of money therein named, to each successive holder. Munn v. Burch, 25 Ill. 35; Brown v. Leckie, 43 Id. 497 ; Hnion National Bank v. Oceana Bank, 80 Id. 212 ; Bickford v. National Bank of Chicago, 42 Id. 238; Bank of America v. Indiana Banking Co., 114 Id. 483. We are able to see no circuinstances in this case which take it out of this rule. We are of the opinion that the court decided correctly in sustaining the plaintiff’s right to recover the amount of the check and interest.

The judgment will he affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    Benjamin Poyer v. Village of Des Plaines et al.
    1. Chancery—Restraining prosecutions under ordinances.—As a general rule, a bill in equity will not lie to restrain prosecutions under a municipal ordinance upon the mere ground of alleged illegality of such ordinance.
    2. Bill to restrain prosecution under alleged illegal ordinance.—Where some of the provisions of an ordinance as to the holding of public picnics were of questionable validity and others were undoubtedly valid, and seven suits having been brought against a person for a violation of such ordinance, he filed a bill in equity against the village and its officers to restrain them from further prosecution until the validity of the ordinance could be determined at law, and the bill failed to show that the prosecutions which had been instituted or which were threatened, were not prosecutions under the valid portion of the ordinance and contained only a general allegation of irreparable injury without stating the facts and circumstances to show it, held, that the action of the court below in sustaining the demurrer to such bill, dismissing the bill and dissolving the temporary injunction which had been obtained, was proper.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed June 19, 1886.
    This is an appeal from the decree of the court helow, sustaining a demurrer to dismissing the bill of appellant, dissolving a temporary injunction which he had obtained, and assessing damages for the wrongful suing out of such injunction. .The bill was brought by Poyer, the appellant, against the village of Des Plaines, S. Garland and August Moldenhauer, the latter being a justice of the peace of said village, to restrain them and each of them from prosecuting him, under a certain ordinance of said village, for the repression of public picnics and open air dances in said village, and from interfering with him in his business of having public picnics on his grounds in said village on the ground that said ordinance is unconstitutional and void. The ordfhance in question was passed and approved May 10, 1883, and is as follows:
    “Section 1. That all public picnics and open air dances within the limits of said village are hereby declared to be nuisances.
    Section 2. That for any person or persons to rent, use or allow to be used, any yard, ground, grove or other real estate within the corporate limits of the village of Des Plaines for public picnic purposes or to permit or in any way allow the use of such property for any. purpose, by which disorderly persons are gathered in or about said village of Des Plaines shall constitute and is hereby declared to be a nuisance; any person creating or permitting any nuisance mentioned and declared in this ordinance to exist, having the right or power to abate the same, shall be subject to a fine of not less than fifty dollars and not exceeding one hundred dollars in every case; and such renting or using or allowing to be used of any such premises for the purposes aforesaid, or any of them, shall be deemed the creating of a nuisance, and the author thereof be subject to a like fine.”
    The bill alleges the bringing of seven suits against him under said ordinance, but does not show what disposition was made of them, and that defendants had threatened to bring others. It sets out the bringing of another which was tried before said justice, Moldenhauer, and a jury, wherein he was found guilty, fined fifty dollars, and took an appeal to the criminal court, where the case is still pending ; and prays that defendants may be restrained from further prosecutions, until the validity of said ordinance can be determined at law. The bill alleges by way of showing irreparable injury, that if the ordinance should be adjudged void, said village would not be legally liable to him for his damages, but there is no allegation that the other defendants or the municipal officers participating in the enforcement of the ordinance, are any of them insolvent. Although the plaintiff alleges in general terms irreparable damage, yet he sets out no facts or circumstances in support of the allegation.
    Mr. John Gibbous, for appellant;
    cited Third Ave. R. R. Co. v. Mayor, 54 N. Y. 159; Butler’s Appeal, 73 Pa. St. 448; Mayor v. Radecke, 49 Md. 217; Mayor v. Pilkington, 2 Atk. 302; Frewin v. Lewis, 4 M. & C. 249; Wood v. City of Brooklyn, 14 Barb. 425.
    As to irreparable injury: Wahle v. Reinbach, 76 Ill. 322; Owens v. Cross, 105 Ill. 354; Hamilton v. Stewart, 59 Ill. 330 ; Met. City Ry. Co. v. Chicago, 96 Ill. 620; Goodell v. Lassen, 69 Ill. 145.
    Messrs. Stiles & Lewis and Mr. C. S. Cutting, for appellee ;
    that a court of equity has no jurisdiction to restrain the enforcement of a penal ordinance on the ground that it is illegal and void, cited Yates v. Village of Batavia, 79 Ill. 500; Phillips v. Stone Mountain, 61 Geo. 386; Garrison v. City of Atlanta, 68 Geo. 64 ; Pierce v. City of Little Rock, 39 Ark. 412 ; Medical, etc., Institute v. Hot Springs, 34 Ark. 559; Burnett v. Craig, 30 Ala. 135 ; Cohen v. Goldsboro, 77 N. C. 2; Devren v. First Municipality, 4 La. An. 11; Levy v. City of Shreveport, 27 La. An. 620 ; Gaertner v. Fond du Lac, 34 Wis. 497; Torpedo Co. v. Clarendon, 19 Fed. R. 231.
   McAllister, J.

There is no claim made by the bill, that the ordinance in question was not enacted by the proper authority of the village of Des Plaines, or that the subject-matter of it was not within the scope of the police powers conferred upon that corporation. While some of the provisions of the ordinance may be of questionable validity, there are others, which seem to us to be undoubtedly valid. The bill fails to show that the prosecutions which have been instituted, or which are threatened, were not prosecutions under the valid portion of said ordinance. If attempts to show instead, that the plaintiff below was not, in fact, guilty of having public picnics on his grounds of such a character as that disorderly persons would be gathered in and about said village, and that therefore he had not violated that portion of the ordinance, which, we think can not be successfully assailed. The question whether or not plaintiff had been guilty of such violation, can not be withdrawn from the courts of law into a court of equity for determination. It would be against fundamental principles to do so. Davis et al. v. American Society et al., 75 New York, 362. In that case, the defendants, whom the plaintiffs sought to have restrained from enforcing a penal or criminal law, were acting under a statute which the court held to be valid, but the plaintiffs placed their right to relief on the ground, among others, that they had not, in fact,, violated the statute. But the Court of Appeals held that to bc^ no ground for relief, because the only proper tribunal for the determination of that question was a common law court and ai jury. In that case, counsel for the plaintiffs cited the case of Wood v. The City of Brooklyn, 14 Barbour, 425, which has, been relied on by counsel for appellant in the case at bar. And the Court of Appeals made one distinction betweeen the' case in Barbour and that in Davis et al. v. American Society, supra, which will be found to exist between it and the case at bar. It was this: that in the Jatter the statute was valid ; but in the case of Wood v. City of Brooklyn, the ordinance, so far as it applied to Wood and his business, was wholly void. He had a license under the statute of the State, as an inn keeper, which authorized him to sell intoxicating liquors on Sunday to liis guests and to travelers.

The city of Brooklyn passed an ordinance so general in terms as to prohibit even inn keepers duly licensed under the State law from selling to their guests. Wood having a vested right under his license to sell to his' guests, and the city of Brooklyn being by statute without authority to pass so unqualified an ordinance, the latter was held void so far as Wood was concerned. His case presented special circumstances. He was intruded upon by the police, arrested on Sunday, ' locked up without the privilege of bail, and tried summarily, without jury, on Monday, although he applied for jury trial. He showed, by facts and circumstances, a clear case of irreparable injury. There are two distinguishing features between that case and the one at bar. First, in the former the ordinance, so far as it related to the class of persons to whom Wood belonged, was unauthorized by law and void. Secondly, irreparable injury was shown by facts and circumstances in a peculiar degree. In the case at bar, a part of the ordinance, and applicable to plaintiff’s business and conduct, was legal and valid. But plaintiff avers that he did not violate that part. Thirdly, the bill here contains only a general allegation of irreparable inj ary, without stating the facts and circumstances to show it. Such general allegation is not sufficient in such a case. Johnson v. Kier, 3 Pittsburgh R. 204 ; Amelung v. Seekamp, 9 Gill & J. 468; 1 High on Inj., § 34.

There is no allegation that the persons charged with the instituting or carrying on the prosecution under the ordinance were, or any of them, insolvents. Davis v. American Society, etc., 6 Daly, 85.

It is a general rule, supported by the prevailing current of authority, that a bill in equity will not lie to restrain prosecution under a municipal ordinance, upon the mere ground of alleged illegality of such ordinance. And the reason is obvious. The party prosecuted has a complete remedy at law. He can avail of such illegality as a legal defense in the respective prosecutions. If his rights of person or property are infringed by such prosecutions, he has his action at law against any person participating in the act. Yates v. The Village of Batavia, 79 Ill. 500; West v. The Mayor, etc., of New York, 10 Paige, 539; 2 High on Inj., §1244, and cases cited in notes. Kerr v. Corporation of Preston, 6 L. R. Ch. Div. 463; Saull v. Brown, 10.

But the counsel for appellant cites the case of Third Avenue R. R. Co. v. The Mayor, etc., of New York, 54 N. Y. 159, and insists that that case establishes a qualification of the above rules and is an authority in support of the bill in the case at bar. That case was decided upon a ground, and upon a principle wholly wan ting here, and, in our opinion, leaves the general rules above stated as unaffected. Every case of a bill for an injunction, which is an application addressed to the sound discretion of the chancellor, must depend upon the particular facts and circumstances set out. How, in the case last cited, seventy - seven suits had been commenced at the same time, by the corporation of New York, in a justice’scourt, against the railroad company, for an alleged violation of a municipal ordinance, whose validity the latter assailed. The railroad company applied to the court of equity to restrain the city from prosecuting all but one of said suits, until the validity of the ordinance could be tested at law. The bill was demurred to, and, at sp ecial term, the demurrer was overruled and judgment went for plaintiff, from which the city took an appeal to the Court of Appeals, where the judgment below was affirmed. The decision of the case, as we understand it, was placed upon the ground that if the seventy-seven suits had been brought in a court of record, the law would entitle the railroad company to ask for and have them all consolidated, since the circumstances would bring them within the rule for consolidation. But, having been brought in a justice’s court, which had no power to effect such consolidation, the defendant was thus deprived of the right, and subjected to unnecessary expense and vexation thereby. The court regarded the application to a court of equity, as simply to secure to the defendant, in such suits, the same result or benefit to which it would have been entitled as a matter of course, if the suits had been brought in a court of record; and, in that view, that case was distinguishable from West v. Mayor, etc., 10 Paige, 539. We can perceive no application that can be made of that case to the one in hand. Ho such element or circumstances exist here.

We are of the opinion that the decree of the court below sustaining the demurrer to the bill was right; and, perceiving no error in the matter of the assessment of damages on dissolution of the temporary injunction, the decree will, in all respects, be affirmed.

Affirmed.

Mobah, J., took no part in the decision of the case.


author: Moran, J.

text:
    William W. Charles v. W. L. Lasher.
    1. Sale—Delivery.—As between vendor and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery, but as against subsequent purchasers, attaching creditors, mortgagees and others in like relations, to render a sale valid there must he a delivery of the property, either actual or constructive.
    2. Delivery to carrier specially designated.—Where goods are delivered by a vendor to a carrier specially designated by the purchaser, the carrier is regarded as the agent of the purchaser, and the delivery is a good delivery to the purchaser.
    3. Delivery to common carrier.—In cases where the purchases are made between parties who are distant from each other, and nothing is said as to the way the goods are to be sent, a delivery by the vendor to a common carrier in the usual and common course of business, tranfers the property to the vendee.
    4. Drayman—Common carrier.—The court is of opinion that it is very doubtful if a truckman or drayman who carries goods from one part of a city to another, is to be regarded as a common carrier within the full legal meaning of the term.
    5. Question of law.—Where there is a contest as to whether certain acts have been done essential to pass the title of property, ownership is a question of law to be determined by the finding of certain facts ; the jury are to find the facts and the court to state the conclusion or the law.
    Appeal from Circuit Court of Cook county; the Hon. Ejek Hawes, Judge, presiding.
    Opinion filed June 23, 1886.
    This was replevin by appellee against appellant for a piano. It appeared from the evidence that in February, 1883, Lasher went to the salesroom of the Chicago Piano Storage Co. to advance money on a mortgage which he was taking on a piano being sold by said company to a Mrs. M. E. Potter. Lasher testified, on the trial, as follows: “Was present at the sale and saw and heard the storage company sell to Mrs. Potter, the piano. After the bargain was made Mrs. Potter made chattel mortgage and notes and gave them to me and I advanced the money for the piano. After the sale and at the same time of the acknowledgment of the mortgage, I saw the piano put upon a dray and heard the storage company’s salesman tell the drayman to take the piano to Mrs. Putter’s residence, at Mo. 38 E. Harrison street. I did not go with the piano nor see it delivered at Mrs. Potter’s house, and I never saw the piano from the time I saw it put upon the dray until I saw it in Mr. Charles’ office.” It appeared from the evidence of Mr. D. H. Tolman, who was a loaner of money, that on May 22, 1883, G. C. Wheeler, manager of the Chicago Piano Storage Company,-produced to Tolman a warehouse receipt for the piano, which receipt was issued by the proprietors of the Garden City Warehouse, and said receipt was assigned by Wheeler as' secretary of the storage company, and was placed in Toknan’s hands as collateral security to the note of the storage company, on which Tolman then and there advanced one hundred dollars. Afterward Tolman sold the warehouse receipt, under the power in the note, to Charles. Charles gave the receipt to an expressman, with directions to go to the warehouse, surrender the receipt and bring the piano to his office; and after the piano had been brought to his possession, Lasher took it on the replevin writ. It further appeared that the Chicago Piano Storage Company failed about May 25, 1883; and also that Mrs. Potter paid to Lasher the two notes first coming due, after the making of the mortgage, but defaulted when the third note came due; and that at that time, May 20,1883, the piano was not at her house.
    The court gave to the jury the following instructions, at plaintiff’s request: “If the jury believe from the evidence that the plaintiff in this case held the chattel mortgage on 'the piano in question, and the notes secured thereby, which have been introduced in evidence, made by Mrs. M. E. Potter on purchase by her of said piano from the Chicago Piano Storage Company, and the delivery of the same to her, if you find from the evidence it was delivered to her, and that some of said notes were past due and unpaid at the time this suit was commenced, and further find from the evidence that the plaintiff had before that time, while holding said notes and mortgages as owner, demanded possession of said piano from the defendant, and he had refused to give it up, then the plaintiff was entitled to such possession, and the jury will find for the plaintiff.
    2. “ The jury are instructed that the mortgage introduced in evidence made by Mrs. M. E. Potter, was a lien upon the piano therein described if owned by her from the date of record, thereof, to wit, from the 28th day of February, 1883, so long as any of the notes secured thereby had not matured ; and that such lien was paramount to any adverse claim against said piano acquired subsequent to such date of record, and entitled the owner and holder of said mortgage to take possession of said piano wherever found upon default in payment of any of said notes. And if the jury believe from the evidence the said M. E. Potter was the owner of the piano in question, and that the plaintiff owned and held said mortgage on the same, and the notes secured thereby, and that at the time he commenced this suit, to wit, on the 30th day of July, 1883, some of said notes were past due and unpaid, then he had a right to take possession of said piano under said mortgage wherever found, as against any person acquiring an adverse claim therein after the record of said mortgage, February 28, 1883.”
    The verdict and judgment was for plaintiff, and the case comes here by appeal.
    Messrs. Frank J. Smith & Helmer, for appellant.
   Moran, J.

As between vendor and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery; but as against subsequent purchasers, attaching creditors, mortgagees and others in like relation, to render a sale valid, there must be a delivery of the property, either actual or constructive.

In this case there is no pretense of constructive delivery, and while it is plain that there was a sale of the piano from the storage company to Mrs. Potter, and that the same was paid for by her, it is very doubtful whether the evidence introduced proves an actual delivery of the piano to her. The burden of proving such actual delivery rested upon the plaintiff, and it was his duty to produce to the jury, evidence to establish such fact of delivery. The proof is that the piano was put upon a dray and the drayman was ordered to deliver it at the house of Mrs. Potter. When goods are delivered by a vendor to a carrier specially designated by the purchaser, the carrier is regarded as the agent of the purchaser, and the delivery is a good delivery to the purchaser. Bradford v. Mareby, 12 Ala. 520; Cross v. O’Donnell, 44 N. T. 661.

And in cases where the purchases are made between parties who are distant from each other, and nothing is said as to the way they are to be sent, a delivery by the vendor to a common carrier, in the usual and common course of business, transfers the property to the vendee. McGuder v. Gage, 33 Md. 344; Benj. on Sales, Sec. 181; Comstock v. Affcolter, 50 Mo. 411.

But even if we assume that the drayman to whom the piano was given, in this case, was a common drayman, who held himself out to carry goods from one place in the city to another for hire, yet we think a delivery to him can not be regarded, in law, as a delivery to the purchaser. Such a carrier may, as to goods which he undertakes to carry for hire, assume the duties and obligations of a common carrier, but it is extremely doubtful whether such draymen or truckmen who carry goods from one part of a city to another, are to be regarded as common carriers within the full legal meaning of the term. Bund v. Dale, 8 Carr. & Payne, 207; Moses v. Boston & Marine R. R. Co., 24 N. H. 71.

It is not shown, however, in this case, that the drayman who was directed to deliver the piano, and who was in charge of the dray on which it was placed, was a common or public drayman; and in view of the fact that it is a very general-practice in this city for business houses to deliver at the homes of their customers bulky articles purchased, the inference is strong that the drayman who was directed to deliver the article in this case, was the servant of the Chicago Piano Storage Company, and driving a dray owned by them, and used in their business. If so, delivery to him was not delivery to or for the purchaser, and unless from other facts in this case the jury could find the delivery at the house, no delivery was proved. We do not say that, from all the evidence, the jury could not possibly infer delivery, but the grounds for such inference were at least slight, and under such conditions accuracy in instructions was essential to guide the jury, and wé are of the opinion that the court committed an error in the second instruction set out in the above statement of facts.

Where, as in this case, there is a contest as to whether certain acts have been done essential to pass the title of property, ownership is a question of law to be determined by the finding of certain facts. The court left it to the jury to find from the evidence whether Mrs. Potter was the owner of the property in question. This was leaving to the jury a question of law. As against the storage company and all persons not standing in the relation of subsequent purchasers, she was the owner; but as against defendant, whether she was the owner in law depended upon the point of delivery. In Ennis v. Lamb, 10 Brad well, 454, the court below left it to the jury to find, from the evidence, whether a party became the lawful, bona fide owner of a certain house in question, and this court held that a question of law was thus submitted to the jury, and reversed the case.

Where the conclusion is one of law from facts to be found, the jury are to find the facts and the court to state the conclusion or the law, and to submit mixed questions of law and fact to the jury is error. White v. Murtland, 71 Ill. 250; Harding, Ex., v. Worthman, 84 Ill. 446.

There is in the second instruction no reference to the first, in which reference as to delivery is made, and no instruction was given in the case, which told the jury what would amount to a delivery which would make Mrs. Potter the owner as against a subsequent mortgagee or pledgee of the piano. The second instruction was an instruction disposing of the entire case, and not controlled or modified by connection with or reference to any other.

For the error pointed out the judgment will be reversed and the case remanded.

Reversed and remanded.


text:
    Morgan Burns et al. v. George A. Follansbee et al.
    1. Action upon penal bond—Damages.—Where several parties are named as obligees or covenantees in a penal bond for the performance of covenants, and the covenants run to them jointly, and there is nothing appearing upon the face of the bond to show that the interests of such obligees or covenantees are several, in an action upon the bond all the obligees must join as plaintiffs, and there can be no recovery, except for damages in which all such obligees are interested.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed June 23, 1886.
    This was an action of debt brought by George A. Follansbee and ten others, as joint obligees, against Burns and Taylor, as obligors, in an injunction bond dated May 27, 1884, in the penal sum of five hundred dollars, conditioned for the performance of covenants. The condition so far as material was as follows:
    “Now, therefore, the condition of this obligation is such that if the above bounden Morgan Burns and John P. Taylor, their executors or administrators, or any of them, shall and do well and truly pay or cause to be paid to said above mentioned obligees, their executors, administrators or assigns, all damages which may be sustained by the said defendants by reason of the wrongful issuing of said injunction, and also all such costs and damages as shall be awarded against the said complainant Burns, in case the said injunction shall he dissolved, then the above obligation to be void,” etc.
    The breach assigned is that the plaintiffs, said obligees, were obliged to and did pay out and expend divers sums of money in and about employing counsel, etc., to the amount of five hundred dollars, in defending said suit and obtaining the dissolution of said injunction, which was dissolved by the court, and no part of which expenses, etc., had been paid by the defendants.
    The pleas were non est factum, nil clébet and a traverse of the breach.
    On the trial the plaintiffs gave no evidence tending to show that any of the plaintiffs had actually paid, laid out or expended any money toward the defense, or on account of said injunction suit, except as to four of said plaintiffs who had contributed the sum of $18.33 each, for the purpose. As respects the others of said plaintiffs, there was no evidence tending to show that either of them had expended any money or incurred any legal liability to pay any, on account of said injunction suit, or to prove that they or either of them was in any way or manner damnified by reason of said injunction or said suit.
    The court, at the instance of plaintiffs’ counsel, gave to the jury this instruction:
    “ The jury are instructed that if they believe from the evidence that a part of the plaintiffs have not paid any part of the expenses incurred as damages suffered by the plaintiffs by reason of the wrongful issuing of the injunction, if they believe from the evidence that the proper court has decided such issuing to have been wrongful, but that part of said plaintiffs have paid such expenses, then the plaintiffs are entitled to recover in this action such damages as you may believe from the evidence they have suffered.”
    The jury found for plaintiffs, debt $500, and damages $201.50, for which judgment passed, and defendants prosecute this appeal.
    Messrs. McClellan & Cummins, for appellants;
    cited Rees v. Peltzer, 1 Bradwell, 315; Ovington v. Smith, 78 Ill. 250; Jevne v. Osgood, 57 Ill. 340; Alexander v. Colcord, 85 Ill. 323.
    Mr. Henry V. Freeman and Mr. Thomas A. Banning, for appellees.
   McAllister, J.

Where several parties are named as obligees or covenantees in a penal bond for the performance of covenants, and the covenants run to them jointly, and there is nothing appearing upon the face of the bond to show that the interests of such obligees or covenantees are several, then the law is inflexible that in an action upon the bond all -the obligees must join as plaintiffs, and there can be no recovery, except for damages in which all such obligees were interested. Damages sustained by a part only of such obligees are not recoverable in that action. Bradburne v. Botfield, 14 Mees. & Welsh. 559; Farni v. Tesson, 1 Black. 309; Ovington v. Smith, 78 Ill. 250; Safford v. Miller, 59 Ill. 205; Rees v. Peltzer, 1 Bradwell, 315.

The covenants in the bond sued on are joint with all the obligees, and nothing appears on its face to show that the interests of the obligees were several.

The evidence failed to show a joint interest of all the obligees and plaintiffs in the damages sought to be recovered,

The instruction for plaintiffs directing a recovery for damages, in which a part only of the plaintiffs were interested, was clearly erroneous. We think also that the court erred in excluding evidence offered by defendants below, which would have tended to show that the counsel for whose fees the recovery was sought, were not, in fact, employed by the obligees in the bond, and had no right to look to them for their pay.

The judgment will be reversed and the cause remanded.

Judgment reversed.