text:
    Ada D. Brennan, Appellee, v. City of Streator, Appellant.
    Gen. No. 5487.
    1. Instructions — how to he construed. The instructions are to be construed as a series; they may supplement each other and the omissions of one may be supplied by the contents of another.
    2. Instructions — when defining obligation of city with respect to its streets not erroneous. An instruction which defines to the jury the obligation of a city with respect to its streets need not be limited to those exercising ordinary care in their use, where such obligation to exercise ordinary care is specified in other instructions given.
    3. Instructions — when omission of element of notice will not reverse. In an action for a sidewalk injury against a city if actual notice of defective conditions is established the omission in an instruction of the element of notice is not harmful.
    4. Instructions — when cannot he complained of as authorizing excessive allowance. If an instruction fail to limit the jury to the amount of damages claimed for medical expenses in the declaration the point cannot be urged on review if the excess of proof made in the trial court .was not objected to!
    5. Verdicts — lohen not excessive. Held, in an action for personal injuries, that a verdict of $3500 was not excessive where it appeared that the plaintiff by reason of a fall upon a defective sidewalk was seriously injured, was rendered incapable of again becoming a mother and suffered from a serious impairment of her nervous system.

      Action in case for personal injuries. Appeal from tlie Circuit Court of La Salle county; tlie Hon. Edgar Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    George E. Glass, for appellant; Bovs, Osborn & Griggs, of counsel.
    George F. Beleord and Browne & Whet, for appellee..
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Ada D. Brennan caught her foot under a water plug near a sidewalk in the city of Streator in the evening of July 7, 1906, and was thereby caused to fall and was injured and brought this suit against the city of Streator to recover damages for said injuries and had a verdict and a judgment for $5,000, from which the city appeals. It claims that the facts do not create a cause of action against appellant; that the court erred in rulings upon instructions; and that the damages are excessive.

Sterling street in said city runs north and south and is crossed by Wilson street and, next south of that, by Livingston street. Appellee and her husband and children lived, on the east side of Sterling street between Wilson and Livingston streets and just south of the middle of the block, and had lived there less than three months when this accident occurred. When appellee went to town prior to this accident, she usually took the car either at the middle of the block and went north on the car or went south to Livingston street and then turned off on Livingston and went by the home of a relative. She had been along the sidewalk between her home and Wilson street but two or three times and had not noticed this water plug. On this side of the street in that block the sidewalk began about one foot west of the lot line and. was about five feet in width, made of brick. Then there was a berm 10 feet or more wide between the sidewalk and the curb, in which was a row of trees two or three feet west of the sidewalk. Next west of the brick sidewalk was a space one and a half or two feet wide, worn down and packed by the travel of foot passengers. Forty-seven feet south of the' south line of Wilson street and at a distance variously estimated at from one to three inches west of the brick border of the sidewalk, was a water plug which stood from three to five inches above the ground, the pipe of which had an outside diameter of three and one-half inches and the cap on top a diameter of five inches. At eight o’clock of that evening appellee left her home intending to take a street car and go north on Sterling street. No car appeared to be coming, and she walked on north beyond the middle of the block on the sidewalk. She then discovered the light of an approaching street car, flashing upon the street ahead of her, and wished to reach the corner of Sterling and Wilson streets in time to take that car. Four women were going north ahead of her on the sidewalk, occupying the entire width. She started to go around them and caught the toe of her left foot under the cap of this water plug and was thrown and hurt. There was no street light at the corner of Sterling and Wilson streets and the moon was not up. The water plug had been in that place for several years. The superintendent of streets had been in that office more than one year and had known of the location of this water plug at that place all the time he had held that office. The plug was in the tramped and travelled portion óf the street immediately west of the sidewalk. This space had long been tramped and travelled by the public, and was in such a condition that the proper officers of the city could not have failed to know that the public travelled in that space. The location of the water plug, so near the sidewalk, made it dangerous to a pedestrian who might have occasion to walk on the travelled way immediately west of the sidewalk or to pass around people occupying the entire walk. It was more dangerous in the night time than in the day time, and was more dangerous than if it had been a much larger object, easily visible to the eye. We adhere to the views expressed by us in the City of Rock Island v. Larkin, 136 Ill. App. 579, and hold that the proof made a case for submission to the jury of the question whether the city was negligent in permitting that obstruction to be in that place where foot passengers might often travel in the night time. It was also a proper question for the jury whether appellee was in the exercise of due care for her own safety, and in view of all the evidence above stated, they could not well have found her guilty of any lack of due care.

Appellant complains of the first instruction, given for appellee. It merely stated what the suit was and what appellee alleged and it stated appellee’s allegations correctly. It is argued that the jury would understand from it that appellee was in the exercise of due care. It is not subject to that construction. It states that appellee alleges that she was injured while in the exercise of due care. It does not state what the issues were nor what was required to be proved to make a case, and we see no reason why it should have been tendered or given, but we are of opinion that it was harmless. The second instruction stated the duty of the city to use reasonable care to maintain its streets in reasonably good repair, so as to render its sidewalks reasonably safe for persons passing over the same. It is argued that it should have limited this duty of the city to those who were themselves exercising due care. The fourth instruction, given for appellee, required her to have used all due care for her own safety in order to recover. The sixth instruction, given for appellee, defined due and ordinary care. The ninth instruction, as modified, and given for appellant, stated that in order to find for plaintiff they must believe from the evidence, among other things, that when plaintiff stepped off the sidewalk and against the stop box she was in the exercise of due care on her part and was thereby guilty of no negligence which in any way contributed to the injury of which she complains; and that unless the jury so believed from the evidence, they must find a verdict for appellant. An instruction like instruction No. 2 was assailed on the same ground in City of Sandwich v. Dolan, 141 Ill. 435, and it was there held to be a sufficiently accurate statement of the duty of the city, when given in connection with other instructions requiring the exercise of ordinary care by the injured foot passenger as a condition precedent to the right of recovery. One of the objections to appellee’s instruction No. 3 is answered in the same way. Said instruction No. 3 also required of the city reasonable care to keep iñ reasonably good repair those parts of its streets immediately abutting and in close proximity to the edges of public sidewalks. We think this instruction is correct as applied to the locality of this obstruction, close to the edge of the brick sidewalk and in the way which had long been travelled by the public on foot, to the knowledge of the city.

Appellee’s instruction No. 4 is criticised because it treats appellee as “passing over said sidewalk” at the time in question. The proof is that she had been traveling upon said walk and that her right foot still rested upon the brick walk when the toe of her left shoe caught under the top of the water plug, situated from one to three inches from the brick walk, and while she was in the act of starting to pass around the four women who occupied the entire width of the brick walk ahead of her. That language of the instruction was therefore justified by the evidence. It is argued that said instruction No. 4 does not require notice to the city. It does require, besides various other things, that in order for plaintiff to recover it was necessary to show by the greater weight of the evidence that permitting said water plug to be and remain in said place was negligence on the part of the city, and this could not be, under other instructions, unless actual or constructive notice was established. As the plug had been there at least four years the jury could not have found otherwise than that constructive notice was established, and as it was shown without contradiction that the superintendent of streets had known of the existence of said plug at said place for over one year, actual notice was also established. Therefore the failure to embody the element of notice in this instruction was not harmful to appellant.. The 8th instruction on the measure of damages is objected to on the ground that when it uses the words “under all the evidence and instructions of the court in this case,” it thereby authorizes the jury to find the facts from the instructions. This contention we consider unsound. This instruction in substantially those words has been approved in many cases, including Cicero Street Ry. Co. v. Brown, 193 Ill. 274; National Enameling Co. v. McCorkle, 219 Ill. 557; and Donk Brothers Coal Co. v. Thil, 228 Ill. 233. This instruction also authorized the jury to allow appellee all moneys she had necessarily expended or for which she had become liable for doctor’s bills' while being treated for such injuries, in so far as they were shown by the preponderance of the evidence. Appellee’s attending physician testified that at the time of the trial she owed him for attendance and services rendered in connection with this injury some $375 or $400, he thought, but he did not remember how much it was. The declaration in each count alleged that appellee had laid out and expended divers sums of money, amounting to $300 in endeavoring to be healed of said injuries. Appellant argues that under this instruction the jury could have awarded $375 or $400, while the amount recoverable should have been limited in the instruction to $300, the sum named in the declaration. It will be seen that the doctor testified that he did not know how much she owed him. No question of this kind was raised in the court below when the amount specified in the declaration as expended for medical services could have been amended. Moreover the closing words of the instruction only allowed a recovery so far as such damages are claimed and alleged in the declaration. We are of opinion that no error was committed on this subject which is now available to appellant. Appellant’s instruction No. 13 as offered, required among other things that the jury should believe from the evidence that said obstruction was wilfully placed there by the city or allowed by it to remain if so placed by another. The court gave the instruction after striking out the word “wilfully.” The declaration did not charge that the city placed the obstruction there, nor that the city had done anything wilfully, and the amendment was proper.

It is argued that the damages are excessive. At the time of this injury appellee was about twenty-eight and a half years old, was a wife and the mother of three children. She had been in good health theretofore, except that she was unusually nervous, had had peritonitis some seven years before and had been operated upon for appendicitis in a hospital some three years before. She was unconscious when picked up from the street, suffered great pain thereafter, had certain external bruises, was confined to, her bed for some weeks and thereafter to her house for some time. Appellée testified that her injuries were followed by a cessation of the menstrual flow for three months and then again for five months and then for seven months and that menstruation had entirely ceased for the two years preceding the trial. She was corroborated in this by her attending physician, and he and two other physicians who examined her twice before the trial testified that her nterns was atrophied and that in their opinion the menopause or change of life, had taken place in her, and that she would have no more children, and they attributed this to shock from some injury. They also testified to her great nervousness, which they attributed to this injury, and which they considered permanent, and her attending physician testified that at one time since this injury he feared that she would become insane therefrom. - Two physicians who had never examined appellee testified that in their opinion such a condition as was described could not result from such a fall and that in their opinion the physicians had not made a sufficiently thorough examination and that appellee had not received proper medical treatment, and that in their opinion, if she were properly treated, the functions of maternity would be restored, and that in their opinion she was suffering from neurasthenia and hysteria. It is difficult to understand how such serious results could follow a fall in which no bones were broken, and we would be better satisfied if the damages had been fixed at about $3,500. Nevertheless, if by this fall appellee at the age of twenty-eight and one-half years has been rendered incapable of again becoming a mother, or if her nervous condition is as' described by her attending physician and is permanent and is attributable to this fall, then we cannot say that this verdict is excessive.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr.. Presiding Justice Dibell

license: Public Domain

text:
    Anna C. Dunbar, Appellee, v. Charley Dunbar et al., Appellants.
    Gen. No. 5548.
    1. Appeals and errors — 'effect' of appeal from supplemental decree. An appeal from a supplemental decree does not search the whole record as does a writ of error, but only questions the decree appealed from, and leaves all previous final decrees unassailed.
    2. Pleading — when plea setting up former proceeding in equity insufficient. Held, that the allegations of the plea which relied upon the pendency of a former chancery proceeding from the decree rendered in which the appeal had been taken were insufficient.
    3. Jurisdiction' — when question of may he raised, on appeal. It is only where it appears upon the face of the bill that there is no jurisdiction in equity, that the jurisdiction of the court can be defeated on appeal where the question has not been raised by demurrer, plea or answer.
    4. Accounting — when fair cash rental value may he shown. Held, under the facts of this case, that a doweress entitled to an account of rents from the owners of the fee was properly allowed to make out a prima facie case by showing a fair cash rental value of the premises in question.
    5. Judicial notice — of what taken. The court takes judicial notice that the rental value of land which is cropped, does not accrue until the crop matures.
    Bill in equity. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court-at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Clark Art and Anderson & Andrews, for appellee.
    Grant Newell and Albert E. Bergland, for appellants.
   Mr.. Presiding Justice Dibell

delivered the opinion of the court.

Shortly before Anna C. Dunbar married Washington Dunbar and after their engagement to marry each other, he conveyed 80 acres of land to each of his four sons, without consideration. This was practically his entire estate. After the death of Washington Dunbar, Anna 0. Dunbar filed a bill in equity against said sons to have said deeds declared fraudulent as to her right of dower and to have it determined that she was entitled to dower in the premises. She had a decree on June 14, 1910, awarding her dower in said land, and appointing commissioners to set off the same, and assessing her damages for the detention of her dower against each of said four sons, and making the decree against each son a lien upon the land so conveyed to such son. The sons appealed to the Supreme Court from that decree, and that appeal was dismissed at the October Term 1910. Thereafter the commissioners set off her dower in said lands by metes and bounds, and a decree was entered on December 22, 1910, confirming their report, from which decree the sons again appealed to the Supreme Court. Thereafter Anna C. Dunbar filed this bill in equity to have a discovery from said sons of the rents and profits of said land for the year 1910 and to have an accounting of the amounts due her for the rents and profits of each of said four pieces of land for that year, and to have a lien upon the shares of said sons for the said rents and profits respectively owing by each of them to her. The sons filed a plea to said bill, in which they set up the proceedings of said commissioners to admeasure and set-off the dower of Anna C. Dunbar by metes and bounds and the decree approving the same in December, 1910; that they appealed from that decree and gave an appeal bond, whichJiad not been suspended or nullified; and they demanded the judgment of the court whether they should be compelled to answer the bill. The plea was set down for hearing and adjudged insufficient. The sons elected to stand by said plea and the bill was taken as confessed, evidence was heard in open court and Anna C. Dunbar had a decree awarding her $160 for her share of the rents and profits of each of said 80 acre tracts for the year 1910 and making each of said sums a lien upon the 80 acres held by the son against whom such -payment was adjudged. From that decree the sons prosecute this appeal.

The plea was bad in various respects. The appeal it set up was from the decree of December 22, 1910, which only approved the report of the commissioners and established the dower in each tract by metes and bounds, pursuant to said report. The decree of June 14, 1910, was the one which determined that appellee was entitled to dower in the land and the plea did not set up any appeal from that decree. The bill in this cause set up that defendants did appeal from that June decree, and that that appeal was dismissed. That allegation was confessed by their default. An appeal from a supplemental decree does not search the whole record, as does a writ of error, but only questions the decree appealed from and leaves all previous final decrees unassailed. Drummer Creek Drainage District v. Roth, 244 Ill. 68; Ellguth v. Ellguth, 250 Ill. 214. The appeal from the December decree did not vacate that decree or destroy its operation as an adjudication. It simply suspended its execution. Walker v. Doane, 108 Ill. 236-243; Moore v. Williams, 132 Ill. 589. The plea did not aver that said appeal was still pending. It must be taken as against the pleaders that their appeal had been disposed of adversely to their interests. The plea did not aver that the former suit was to recover for the rents for the year 1910 or that anything was recovered for the use by appellants of appellee’s interest in the real estate for that year. The court properly overruled the plea, and properly took the bill as confessed when appellants elected to abide by their plea and did not answer further.

Appellants contend that the court was without jurisdiction in this cause. This question was not raised in the court below and therefore cannot be raised here, the matter of an accounting and of establishing a lien upon the property of the fee owners who had taken and appropriated another’s share of the rents being within the general jurisdiction of courts of equity. It is only where it appears upon the face of the bill that there is no jurisdiction in equity that the jurisdiction of the court can be defeated on appeal, where the question has not been raised by demurrer, plea or answer. Kaufman v. Wiener, 169 Ill. 596.

It is contended by appellants that appellee should have proved how much each son received in cash or crops from the 80 acres occupied by him and how much he expended for repairs and taxes. Appellee proved that she had received nothing from the lands and proved by three of said sons that he rented at least a part of the lands to others in the year 1910 and by each of the four sons that he had no books or accounts by which he could show what he received from the lands that year, although the pendency of the former suit notified each of them that she claimed dower in said lands, and after June 14, 1910, they knew they would have to account to her for the use of her dower interest in the land. Appellee proved the fair cash rental value of each farm, and offered in open court, notwithstanding the bill had been taken as confessed, to let the sons prove any matters of set-off they might have. Their counsel stated to the court that they had nothing to offer. The court allowed one-third of what the proof showed was the fair, cash rental value of the property for that year. Appellants did not show that they had paid any taxes or made any repairs, though the opportunity was given them to make that proof. The matter rested specially within their knowledge, and appellee called each of them as her witness and gave the opportunity. We are of opinion that under these circumstances she had a right to prove the fair, cash rental valúe, and thereby made a prima facie case. The right to join the four sons in one suit was not questioned in the court below. This bill, though in form a new suit, is really supplemental to the former suit.

Appellants contend that the decree of June 14, 1910, awarded appellee damages for the detention of her dower to the date of that decree, and therefore it was error to award her damages in this suit for the whole of the year 1910. The decree of June 14,1910, did adjudge that complainant be awarded damages for the detention of her dower in said premises from the date of her bill of complaint therein (elsewhere found to be January 28, 1908) to the date of that decree; and that each of said four sons pay her $320. There is other language in the decree, however, which leads to a different conclusion as to what was intended. That decree also found that the average and reasonable rental value of said premises was $6.00 per acre. That would make the annual rental value of each eighty $480 or $960 for two years; and dower therein, or one-third thereof, would be $320 for two years, and that was the sum awarded complainant against each son by the decree of June 14,1910. This was farm land. The proof shows that corn, oats, and hay were raised on these lands in 1910. The court takes judicial knowledge that the rental value of land which is cropped does not accrue till its crop matures, and that this is later than June 14, and that the use of a farm upon which to raise such crops from January 1 to June 14 would be of but little value. It is obvious that the two years for which the court awarded damages in June 1910, were the years 1908 and 1909, and that nothing was intended to be there awarded for the use or rental value of the land for part of the year 1910.

The decree is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    Elna Hakanson, Plaintiff in Error, v. La Salle County Carbon Coal Company, Defendant in Error.
    Gen. No. 5550.
    Mines and minees — when act does not avvly. Tbis statute bas no application until tbe actual mine is in operation and tbe mere fact that in tbe actual work preparatory to operation it is necessary that coal shall be removed does not render it an actual mine in operation.
    Action in case for death caused by alleged wrongful act. Error to tbe Circuit Court of La Salle county; tbe Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    J. L. Murphy and Browne & Wiley, for plaintiff in error.
    McDougall, 1 Chapman & Bayne, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The La Salle County Carbon Coal Company, hereinafter called the company, was engaged in opening a new coal mine at Cedar Point in La Salle county. It had sunk two shafts to the third vein and was engaged in opening main entries and other work, as hereafter stated, when, on July 3, 1907, certain pipes were being moved from one side of the main shaft to another side, and several joints of said pipes became disconnected and fell down the shaft. Hakan Bengston and others were riding down the shaft on an open platform called a float. The pipe fell upon them and killed Bengston and another and injured others. Bengston was about 50 years of age and left no widow or descendants, hut left a mother, Elna Hakanson, who brought this suit against the company to recover damages for the death of her son. The declaration alleged wilful violations of the Mining Act. The first connt charged that the company wilfully allowed Bengston to enter the mine to work therein, not under the direction of the mine manager, before all conditions had been made safe and while dangerous conditions existed in the mine and shaft. The second count charged that-the company wilfully failed to cause the shaft and equipment to be examined by a qualified mine examiner and wilfully failed to have an examiner perform any of the duties prescribed by Section 18 of the Mining Act with reference to the main shaft, though there were dangerous conditions therein. The third count charged that the company wilfully failed to equip the cage with a substantial cover of boiler iron, but wilfully used a cage therein which had no cover to protect the men riding on it from falling objects. The proof showed that the dangerous conditions had not been made safe, and that there was no mine examiner, and that the cage upon which Bengston was going down the shaft was a mere platform with no covering over the men riding thereon. At the close of all the evidence the court excluded the evidence and gave an instruction directing the jury to find the company not guilty. The ground of the motion was that this was not a coal mine and that the mining law was not applicable thereto. A motion by Mrs. Hakanson for a new trial was denied and the company had a judgment for costs. She sues out this writ of error to review said judgment and the only question is whether Chapter 93 of the Bevised Statutes, entitled “An Act to revise the laws in relation to coal mines and subjects relating thereto and providing for the health and safety of persons employed therein,” is applicable to the conditions existing when Bengston was killed.

The company had driven two shafts down over 540 feet to the bottom of the third vein and had connected them at the bottom by a way intended as an air passage. These shafts were about 200 feet apart and one was designed for the main shaft and the other for the escapement shaft. When they reached the coal they cut through it to the bottom of the vein, which was about 40 inches deep. They did not destroy this coal but took it to the top. They then cut a main entry east and another west and cut other entry ways north and south. They took out the vein of coal in cutting the entry and then took down enough earth and rock above the coal to make the entry about seven feet high. As far as practicable they took out the coal separately from the earth and rock and took the coal to the top. They then cut side entries at the end of each of these main entries and prepared places where rooms could be opened and where switch tracks could turn off from the main to the side entries. All the coal taken out in making these preparations for a coal mine, which could be kept separate from earth and rock, was taken to the top. This coal was taken up in either shaft and on small cages or on floats. This coal was not taken out and raised as a part of the operation of a coal mine, but in the work of preparing the plant to be operated as a coal mine. Light rails were put down in the entries on which to haul the coal to the bottom of the shaft. These were only one-half the weight intended to be used when the mine was ready for operation. The hoisting cages which were to be used when the mine was operated had not yet been installed and could not be installed until changes were made in the main shaft. A small blower had been inserted at the foot of the escapement shaft which was sufficient to cause a circulation of the air in the small area which had been opened, but it was wholly insufficient for the operation of a coal mine, and it was necessary, before operating the mine, that such entries should be cut as would enable the company to carry its ventilation system through all parts of the mine and to install a ventilating fan sufficient for that purpose. To do this it was necessary that various entries be cut through till they connected. The tower and the tipple house had not been finished. The sump at the bottom of the main shaft and the timbering upon which the hoisting cage should rest at bottom and at top had not been completed. Track scales had to be inserted, and shaker screens and a hoisting engine and tracks in the tower. Many other things were required to be done before the company was ready to mine coal; It is entirely clear that this plant was not being operated as a coal mine and had not been operated as a coal mine when Bengston was killed. Though the digging of the shaft began a year before, still this was not a coal mine in operation. The company was merely doing the work preparatory to operating a coal mine. The question is whether this work, so done by “company men” working by the day is within the protection of the Mining Act.

Various sections of that Act refer to the work of preparing a shaft for operation. Thus section 2 (a) is “Any shaft in process of sinking, and any opening projected for the purpose of mining coal, shall be subject to the inspection of the State Inspector of Mines for the district in which said shaft or opening is located.” Section 3 (a) fixes the time within which escapement shafts shall be completed after the hoisting of coal in the main shaft, and section 3 (b) limits the number of men who may be employed in completing the connections between the escapement shaft and the adjacent main. Section 34 (b) says that the word “excavation” shall signify any part of the mine excavated or being excavated. On the other hand, section 34 (a) defines the word “mine” and “coal mine,” as used in that Act, to signify “any and all parts of the property of a mining plant, on the surface or- underground, which contribute, directly or indirectly, under one management, to the mining or handling of coal.” It is clear that the main features of the act relate to a coal mine previously prepared and ready for actual operation in the mining of coal, and the mere fact that in opening this mine there was coal which had to be got out of the way and was therefore taken to the top and in common prudence was kept separate from earth and rock, so that when it reached the top it could be used or sold as coal, does not make the operation of taking this material out of the way the running of a coal mine. We consider this question practically disposed of by the opinion of the Supreme Court in Moore v. Dering Coal Company, 242 Ill. 84. There the decedent came to his death, as here, during the construction work preparatory to opening a coal mine, and it was held that the trial court properly entered a judgment for the defendant, whose liability was alleged to arise from a wilful violation of said Act in relation to Mines and Mining. The opening of the mine in that case had not proceeded as far as here and no coal had yet been removed, but we are of opinion that the principle is the same. As the plaintiff here based her cause of action solely upon an alleged violation of the Mining Act and as that Act, under the case above cited, is not applicable to construction work preparatory to opening a coal mine, the court properly directed a verdict for defendant.

The judgment is therefore affirmed.

Affirmed.


text:
    Mary W. Anderson, Appellee, v. Wesley D. Patty et al., Appellants.
    Gen. No. 5555.
    1. Assumpsit — when lies to recover legacy. An action of assumpsit lies as against an executor to recover a legacy where the debts of the estate have been settled, the final account approved and the legacy ordered paid — there being sufficient funds in the hands of the executor to pay the same.
    2. Assumpsit — when propriety of action cannot he questioned. In failing to stand by a demurrer overruled and pleading the general issue and going to trial and failing to move in arrest of judgment the propriety of the maintenance of the action of ássumpsit cannot be urged.
    3. Assumpsit — when lies. Wherever money has been directed by an order of court to be paid by' an officer of the court to a party, the officer becomes a trustee for the party to whom it is ordered to be paid and the money is no longer in the custody of the law, and the person to whom it is ordered paid can recover it in an action for money had and received and his creditors can maintain garnishment against such trustee holding the money.”
    4. Pleading — effect of failure to file similiter. It is not error to proceed to trial without a similiter added to pleadings concluding, to the country.
    5. Pleading — effect of setting out instrument in haec verba. Where an instrument is set out in haec verba in a pleading the facts stated in the instrument are thereby sufficiently alleged as a part of the plea.
    6. Administbation oe estates — when County Court has jurisdiction to set aside order after term. After the lapse of the term of entry the County Court has jurisdiction to set aside an order for fraud, accident or mistake.
    7. Appeals and ebbobs — effect where trial is de novo. If upon an appeal the trial is de novo the effect of the appeal is to vacate the judgment appealed from.
    Assumpsit. Appeal from the Circuit Court of Henry county; the Hon. Emeby C. Gbaves, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Fred W. Potter, for appellants.
    Anderson & Andrews, for appellee.
   Mr. Presiding Justice Dibell

delivered tlie opinion of tlie court.

Appellee sued appellants in assumpsit to recover $500. After various rulings on special pleadings the cause was tried without a jury and the court assessed appellee’s damages at $511.51 and appellants entered a motion for a new trial. Thereafter appellee conceived that the court had erred in her favor in rulings upon the pleadings and she confessed the motion for a new trial and thereafter certain rulings upon the pleadings were rescinded. Those rulings need not be stated here. Thereafter there was further special pleading and a trial by the court, and there was a finding and a judgment for appellee for $512.10, which was the $500 sued for and interest. Defendants below appeal.

The declaration alleged that "William P. Williams, deceased, executed a last will in his lifetime which will was admitted to probate in the County Court of Marshall county in May, 1907, and that appellants were by said court appointed executors of said will and entered upon the discharge of their duties; that by said will it was provided that if appellee should elect to receive, out of the estate of said deceased, the sum of $500, she should be entitled thereto; that such proceedings were had in said County Court that all debts, expenses and other legacies except that to appellee, were paid before March 1, 1909, leaving in said estate assets of more than $20,000; that on December 19, 1910, appellee filed in said court her election in writing to receive said legacy of $500 and' said County Court thereupon entered an order upon appellants to pay the same in accordance with the will and with said election, by virtue whereof appellee became entitled to receive said $500 from the appellants, yet though often requested to pay the same, appellants have refused and wholly neglect to do so, to the damage of appellee of $600, wherefore she brings her suit.

It is contended that an action of assumpsit will not lie to recover a legacy. We doubt if appellants are in a position to raise the question. They did not abide by their demurrer to the declaration, but filed pleas in bar, including the general issue, joining issue thereon. A plea in bar is generally an admission by the defendant that the declaration states a cause of action. Appellants did not move in arrest of judgment. As appellants had the money with which to pay this legacy and were ordered to pay it and did not abide by their demurrer to the declaration charging them personally, we are of opinion they cannot now raise the question that assumpsit will no.t lie to recover a legacy. But we are disposed to hold that this action can be maintained. This is not merely an action to recover a legacy. The final report had been approved; all other debts and legacies had been paid; the amount of this legacy was but $500 and there were $20,000 of assets available to pay it. The County Court having jurisdiction of the estate ordered it paid, and it then became the duty of the executors to pay it. They then had in their hands money which from the entry of that order belonged to appellee. By a long line of decisions in this State of which Wilson v. Turner, 164 Ill. 398; First National Bank v. Gatton, 172 Ill. 625, and Donovan v. Purtell, 216 Ill. 629, are examples, it is held that assumpsit is an equitable action in which' plaintiff can recover from defendant so much money as he can show defendant in equity and good conscience ought not to retain, and that in such case the law implies a promise to pay, notwithstanding there was no privity between the parties. Wherever money has been directed by an order of court to be paid by an officer of the court to a party, the officer becomes a trustee for the party to whom it is ordered to be paid, and the money is no longer in the custody of the law, and the person to whom it is ordered paid can recover it in an action for money had and received and his creditors can maintain garnishment against such trustee holding’ the money. Weaver v. Davis, 47 Ill. 235; Commerce Vault Co. v. Barrett, 222 Ill. 169. In O’Connell v. McClenathan, 248 Ill. 350, holding invalid an act authorizing the garnishment of administrators and executors at any time after letters are issued and before an order of distribution, it was stated, on page 354 as the previous holding of the courts, that an executor or administrator may be summoned by garnishment process after an order of distribution has been made. The garnishment in such ease would be a suit at law in the name of the distributee for the use of his creditor against the administrator or executor. If that suit at law may he maintained in the name of the heir at law against the administrator or executor after an order of distribution, we fail to see how such a case is to be distinguished from this suit by the legatee against the executors after an order by the court upon them to pay the legacy. It is said in 2 Woerner’s Am. Law of Administration, Sec. 569, that the order of the Probate Court for the payment of legacies takes the place of the executor’s assent, which (idem, Sec. 453,)' was essential to authorize a suit against the executor at common law, and that thereafter the liability of the executor becomes a personal one. Section 119 of the Administration Act, R. S. Chap. 3, gives a legatee an action of account against an executor, and section 115 gives a legatee an action on the executor’s bond. An action on the bond is an action at law and is maintainable because there is a legal liability to pay. It is not brought against the executor as such, but against him personally. If he is under a legal liability to the legatee which will authorize that action at law against him personally, we see no reason why he may not also be sued personally by the legatee in ,an action in assumpsit. We are of opinion that the legatee ought not to be compelled to take the risk involved in attaching the body of the administrator under section 114.

.Appellants argue that issue was not joined on their pleas of payment and of partial payment. Appellee filed special replications traversing said pleas and concluding to the country. Appellants contend that there was no replication to their plea of nul tiel record and therefore that their said plea stands confessed and thereby recovery by appellee was barred. Said plea of nul tiel record concludes to the country. It is held in Hazen v. Pierson, 83 Ill. 241; Nieman v. Wintkler, 85 Ill. 468; Hefling v. Van Zandt, 162 Ill. 162; Highley v. Metzger, 186 Ill. 253; Raymer v. Modern Brotherhood, 157 Ill. App. 510, and in earlier cases there cited, that it is not error to proceed to trial without a similiter added to pleadings concluding to the country, and it is thus impliedly held that the lack of a similiter does not confess the prior pleading. But if more than a mere similiter had been required, though the earlier cases hold that a special plea not replied to is confessed, the later doctrine is that where a special rejoinder is required by the frame of the pleadings, and it is not filed, and the party filing the previous pleading does not take a rule upon his adversary to rejoin or pray judgment for want thereof, but the parties go to trial without such rejoinder, a written issue is waived and the parties go to trial as upon an oral pleading, and the irregularity is cured by verdict. Brazzle v. Usher, Breese, 14; Graham v. Dixon, 3 Scam. 115; Kelsey v. Lyon, 21 Ill. 558; Hewittson v. City of Chicago, 172 Ill. 112; Supreme Court of Honor v. Barker, 96 Ill. App. 490; Cook v. City of Marseilles, 139 Ill. App. 536; First National Bank v. Miller, 139 Ill. App. 608; Sanitary Can Co. v. Hones, 149 Ill. App. 244.

Appellant filed a plea puis darrein continuance, which set out a certain notice to appellee of an application to be made to the County Court of Marshall county on June 17, 1911, and service of such notice and a hearing in said County Court on June 16, 1911, and an order of said court setting aside and annulling the entire order of said court previously entered, which included the order to pay appellee said legacy, and that said order was still in full force, not appealed from and not reversed, and said plea prayed judgment if appellee ought further to maintain her action except as to a certain sum of money. After demurrer to said plea overruled appellee filed three replications thereto and appellants demurred to said replications and the court sustained the demurrer to the first replication and overruled it to the second and third, and appellants elected to abide by their demurrer to the second and third replications. Appellee by cross error questioned the action of the court in sustaining the demurrer to said first replication and appellants assert error in overruling the demurrer to the second and third replications.

The special plea had alleged notice of said subsequent proceedings in said County Court, served upon N. F. Anderson of the firm of Anderson and Andrews, attorneys for appellee. The first replication was that N. F. Anderson was not and is not attorney for appellee about the matters and things stated in said plea, but that James H. Andrews was and is her attorney in said matters. The special plea set out in full the order entered in the County Court at said later date, and it showed appellee appearing by E. D. Richmond, her attorney, and therefore showed that the court apparently had jurisdiction of the person of appellee, and the replication did not deny that appellee appeared there by her attorney, E. D. Richmond. Appellee contends that the special plea should have specially averred that she appeared by E. D. Richmond, her attorney, and that without such averment,the plea did not charge that she só appeared. The rule is that where as here, an instrument is set out in haec verba in a pleading, the facts stated in the instrument are thereby sufficiently alleged as a part of the plea. North v. Kizer, 72 Ill. 172; National Park Bank v. Halle, 30 Ill. App. 17; 4 Ency. Pl. & Pr., 918-920. Therefore this replication did not sufficiently deny the allegations of the plea which charged jurisdiction of the person of appellee, and the demurrer to it was. properly sustained.

The second replication to said special plea alleged that the County Court at the time of said proceedings in June, 1911, did not have jurisdiction of said matter in this “that no written motion, petition, bill, information, suggestion or any other written matter was presented to the County Court of Marshall county at any time, claiming fraud, accident, mistake or any other matter or thing within the equitable conscience of said court relative to” said previous order, wherefore said order set out in said special plea is null and void and the entire proceeding coram non judice. The proceeding in June, 1911, was several terms after the order approving the final report and directing the payment of this legacy. There was no pleading or claim that the administration had been closed in the County Court, and that court had jurisdiction to set aside any previous order upon a proper showing of fraud, accident or mistake. It will be observed that the replication does not charge that no claim of fraud, accident or mistake was made to the Probate Court or that it did not have before it any showing to that effect, but only that no written pleading or motion was filed which asserted fraud, accident or mistake. Under this replication the County Court had jurisdiction of the parties and had authority to set aside the previous order if fraud, accident or mistake therein was properly pleaded and proved. County courts have general jurisdiction in probate matters and their proceedings cannot be collaterally attacked. Schlink v. Maxton, 153 Ill. 447; Field v. Peeples, 180 Ill. 376; Bradley v. Drone, 187 Ill. 175. We are not called upon to decide whether upon a direct appeal this later order would be reversed because there was no written motion or pleading charging fraud, accident or mistake, but we are of opinion that that irregularity, if it was such, will not defeat the order when collaterally drawn in question. We are of the opinion that the court erred in overruling the demurrer to the second replication.

The third replication was to the effect that after the rendition of said later order, she appealed therefrom to the Circnit Court of said county and filed an appeal bond in apt time and in proper form and with sufficient securities, which appeal bond was approved by said County Court, whereby said later order was annulled. Appellants contend that an appeal does not vacate or annul the judgment appealed from, hut only suspends its execution, while leaving it meanwhile standing as an adjudication between the parties if the matter thereof arises in any other litigation. It will be observed that this is not the case of an ordinary appeal to the Supreme or Appellate Court, where the only question is whether the order shall be affirmed or reversed but this was an appeal to the Circuit Court where the cause would .be tried de novo. It is laid down in 2 Cyc., 971-972, that where the appeal will result in the cause being re-tried the judgment is vacated by the appeal, but where the appeal merely requires a review of errors and an affirmance or a reversal, the judgment of the lower court is not vacated. Bank of North America v. Wheeler, 28 Conn. 433, is to the same effect. 2 Woerner’s Am. Law of Administration, Sec. 550. We conclude that the demurrer to the third replication was properly overruled. Appellants stood by their demurrer thereto and thus confessed the replication and thereby confessed that the later order of June 1911 had been vacated by the appeal and was no longer operative. The plea puis darrein continuance therefore presented no defense to this action and the error in overruling the demurrer to the ■second replication is therefore immaterial.

Appellants contend that the court erred in sustaining appellee’s objection to an instrument which it offered which purported to be the last will of William P. Williams, deceased, to which was- attached the certificate of the clerk of the County Court that it had been duly admitted to probate. Appellee contends the latter fact could not be established by the certificate of the clerk, but that the will should have been accompanied by a certified copy of the order of the County Court admitting it to probate. Passing that by, we are unable to find that the will, if it had been admitted, established any defense to this suit. The effect of the will as to appellee was that it put one-sixth of the estate in the hands of trustees, except $500 which was to be paid to appellee if she would accept it, and the residue of said one-sixth, and the whole of it, if appellee did not accept the $500, was to be placed in the hands of trustees and the income thereof to be paid to her during her life, with a certain disposition thereof to her surviving children or others after her death. The proof shows that long before this controversy arose, one of the trustees told her that he had $500 to pay this legacy to her; that at that time she did not know but she might contest the will and so declined to receive it, and said trustee told her that he would deposit it in a certain bank, and afterwards told her he had deposited $500 in said bank. He did not show her any money or tender her any money, nor did he tell her that he had deposited the money in such a way that she could obtain it, nor did appellants prove that they so deposited it. Afterwards she elected to accept the legacy and filed a written election in the County Court and obtained the order of the County Court for the payment thereof to her. We fail to see that the will, if admitted, would have established any defense, and therefore it was not error to refuse to admit it. Appellee testified that just before the trial one of the executors told her that this $500 was still in the same bank.

The facts alleged in the declaration were proven. No defense was shown. The judgment is therefore affirmed. $

Affirmed.


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    Cora Lohrman, Appellee, v. Joseph Grundler, Appellant.
    Gen. No. 5559.

      Admissions — husband cannot bind wife. A husband cannot bind bis wife by admissions made in ber absence if be is not ber agent.
    Action commenced before a justice of tbe peace. Appeal from tbe Circuit Court of Livingston county; tbe Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    White & Tuesbueg, for appellant.
    Guy L. Louderback and W. W. Louderback, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Cora Lohrman sued Joseph Grundler before a justice of the peace for a balance claimed to be due her for furnishing meals for employes of Grundler under a contract between them, and she had a judgment for $180.32, from which Grundler appealed to the Circuit Court, where upon a jury trial plaintiff had a verdict and a judgment for $43.95, from which latter judgment Grundler prosecutes this appeal.

Joseph Grundler had a farm or place in Canada and a furnished house and had regular and transient employes, one of whom was the husband of appellee, who had gone from this state to Canada to work for appellant. Appellee went to Canada to visit her husband. She claims that Grundler then proposed that she stay there and do the cooking and furnish the meals for himself and his employes and that he would furnish the house and the conveniences already in it of beds and bedding, cooking utensils, etc., and the use of one cow, and would pay her at the rate of $15 per month for the meals for each of the men, and that he would pay the hills of the grocer and butcher and deduct them from the amount which would be coming to her, and that she made that contract with him in the presence of her husband and remained there for a certain length of time and did the work and furnished a certain number of meals. It was agreed how much appellant paid for grocer and butcher bills. She and her husband testified to the contract. Appellant denied that he ever made any contract with her on the subject. Appellant sought to prove a conversation with the husband in the absence of appellee in which a contract was made with the husband for the doing of this work, and that after the work was done he and the husband had an accounting and found that there was $56 coming to the husband and that after-wards and after their return to Illinois, he had a conversation with the husband in which the husband told him, after going over the figures, that if appellant would pay the husband $223 he would give him a receipt in full, including labpr, board and provisions. The court refused to admit this testimony. It was not proposed to show that appellant paid the husband any sum whatever in settlement, but only conversations in which certain sums were mentioned and agreed upon, but not paid. The husband could not bind the wife by admissions in her absence. It is contended that this evidence would have a tendency to impeach the testimony of the husband that he was present and heard the contract made between appellant and appellee. We conclude that it would have introduced an immaterial issue and would have tended to mislead the jury and that it was properly kept out. If appellant made the contract with appellee and she performed the labor, then she is entitled to be paid therefor, notwithstanding the husband in other conversations may have assumed to agree to settle her claim with his claim for wages, or may even have treated it as if he had a right to collect pay for her services.

The judgment is affirmed.

Affirmed.


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    Aurelia J. Hanson et al., Appellants, v. J. C. Ralston et al., Appellees.
    Gen. No. 5584.
    1. Injunctions — when temporary cannot he made permanent. A temporary injunction cannot be made permanent in part and continued temporary in part.
    2. Injunctions — when do not He to restrain enforcement of judgment. If the remedies existing at law have not been exhausted an injunction does not lie to restrain the enforcement of a judgment rendered at law.
    3. Injunctions — what essential to maintenance of action to restrain enforcement of judgment at law. Equity will only relieve against a judgment at law for fraud, accident or mistake, and then only where the party applying for relief was free from negligence.
    Bill in chancery. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Pbost, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    B. A. Knight, for appellants.
    Feed H. Smith and R. K. Welsh, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Aurelia J. Hanson and Alfred J. Hanson filed a bill of complaint against Ralston Brothers and Lewis Haw-key, sheriff of Winnebago county, wherein they alleged that Ralston Brothers recovered a judgment in the Circuit Court against Alfred J. Hanson on July 19,1910, for $252.20 and costs in an action on a promissory note; that Alfred J. Hanson had paid $50 which had not been credited on said note, and that the judgment was $51 more than was due when the judgment was taken; that an execution upon said judgment had been levied by the sheriff upon personal property owned by Aurelia J. Hanson and not by Alfred J. Hanson, and that an excessive amount of personal property had been seized under said execution. The bill prayed for an accounting as to the true amount due on the note and for an injunction to restrain the defendants from selling any of said personal property under said execution. A temporary injunction was issued by a master. Defendants answered. They admitted that $50 had been paid which was not credited in taking judgment, hut they alleged that this was due to the neglect of Alfred J. Hanson and his attorney; that Ralston Brothers made many efforts to get Hanson or his attorney into court on the day when the judgment was to be taken in order that he might see that the computation was correct,- and that no bill in equity' was necessary but that Hanson well knew that if he had produced his receipt to the defendants or their attorney, due credit for said payment would have been given him upon said judgment and said execution without the bringing of a suit for an injunction. The answer denied that Aurelia J. Hanson was the owner of the personal property levied upon and denied that the levy was excessive. Complainants moved to make permanent the injunction as to the sum of $50 on the judgment. This motion was denied. Defendants then by leave of court withdrew their answer and demurred to the bill. The demurrer was sustained. Complainants elected to abide by their bill and the suit was dismissed. Complainants appeal and assign that the court erred in refusing to make the injunction permanent as to the $50 and in sustaining the demurrer.

When the motion was made to make the injunction permanent as to the $50 the temporary injunction was in force. The cause had not been set down for final hearing nor had it been heard nor had complainants abandoned the issue as to the ownership of the personal property levied upon. The court could not enter a final decree on one subject and leave another subject to be litigated. Again, there was no injunction as to the $50 and hence no injunction on that subject to be made permanent. The injunction only restrained the sale of the personal property levied upon. The motion to then make the injunction permanent as to the $50 was properly denied.

The bill was subject to demurrer for many reasons. Each complainant had an interest only in one part of the subject matter of the suit. Alfred J. Hanson had no interest in enjoining the sale of the personalty belonging to Aurelia J. Hanson. Aurelia J. Hanson had no interest in the matter of the $50. Aurelia J. Hanson could not maintain a bill in equity to enjoin the sale of her personal property if her personal property was levied upon under an execution against another and not against herself. She had at least three remedies at law. She could have a trial of the right of property under the statute; she could replevy the property from the sheriff; and she could let the sale go on and sue the sheriff in trespass. Alfred J. Hanson could not maintain a bill in equity upon the facts stated by him in relation to the $50. Equity will only relieve against a judgment at law for fraud, accident or mistake, and then only where the party applying for relief was free from negligence. Kretschmar v. Ruprecht, 230 Ill. 492. The bill charges that this judgment was taken for $51 too much, either through the fraud or mistake of Ralston Brothers, but it does not say which and it charges nothing showing fraud.' Alfred J. Hanson was a party defendant to that suit; he had an opportunity to defend and he does not allege that he tried to obtain credit for said $50 or brought that payment to the attention of the court. The court therefore did not err in sustaining the' demurrer.

The decree is affirmed.

Affirmed.


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    Hans Helmeland, Appellee, v. D. J. McDonald, Appellant.
    Gen. No. 5576.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against tbe evidence unless clearly and manifestly so.

      2. Instructions — how to be construed. Instructions are to be construed as a series and tbe omissions of one may be supplied by tbe contents of another.
    Assumpsit. Appeal from tbe Circuit Court of Kane county; tbe Hon. Mazzini Slusseb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    N. J. Aldrich and James Mahee, for appellant.
    John M. Raymond and John K. News all, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The common counts and the general issue were the pleadings in this suit by appellee against appellant, wherein appellee recovered a judgment against appellant for $980 for wages. Appellant owned a large farm a little west of Aurora. For a number of years he ran it as a dairy farm and had a large number of milch cows thereon and young cattle. He also kept blooded stallions and brood mares, some of the mares being owned by him and some by others, and he there trained race horses. These were kept in a barn erected for that special purpose. The land was largely used for pasture and meadow and for raising oats and other feed for the stock. Appellant’s main business was that of a railroad contractor, and during much of the time covered by appellee’s employment appellant had contracts in the south. When appellee first began to work for appellant, either appellant or his wife were upon the farm, and had direction of its affairs. Thereafter appellant began to be absent for two weeks or a month or two months at a time, and afterwards appellant’s wife ceased to live upon the farm, and finally appellant was absent in the south in his railroad work nearly all the time for about two years. Appellee was first hired by appellant and labored as a common farm hand from November 1, 1904, to March 1, 1905, at $30 per month. In the latter part of February 1905 appellant hired appellee at $40 per month, and no other rate was ever named between them. Appellee testified that appellant offered to give him $40 per month if he would stay for one year and that he accepted that offer. Appellant testified that he offered him $40 per month if he could manage the farm, as the foreman was going to leave, and that appellee accepted that offer. Appellee testified that before the end of that year, March 1, 1906, he told appellant that he wished to leave at the end of the year, and that appellant asked him to stay till he could get another man to take his place, and that he accordingly stayed, and that appellant hired another man but the latter never came and appellant went away on his railroad business in the south and appellee stayed on. Under date of June 25, 1906, appellant wrote appellee a letter which appellee construed to mean that he would thereafter be paid what his services were reasonably worth and he claims that from that time on he was entitled to recover what his services were reasonably worth, and that they were worth $80 per month. He stayed till September 28, 1909. From the time when the bargain at $40 per month was made his duties were greatly increased, especially after appellant and his wife ceased to reside at the farm. He began as an ordinary farm hand under the control of appellant or his foreman. He ultimately came to have entire charge of the farm, hired and discharged men, paid the bills incurred at the farm, collected the proceeds of the farm and bills due appellant in connection with the horse business, determined when to sue and when not to sue persons owing appellant on matters connected with the farm, and when and how much credit to extend and when it was necessary to exact security and what security to take. During the term he was there he handled about $3800 of the avails of the farm. He wrote many letters to appellant, giving details of the farm business and the horse business, and he received from appellant many letters with full details concerning- the conduct of the farm business. Many times appellant directed him exactly what to do. Many other times appellant directed him to use his judgment and discretion, and he did so.

The letter of June 25, 1906, first directed him as to the harvest and as to hiring men and as to certain other things about the farm and dairy business. The letter then gave various directions with reference to sending four certain colts to Lexington, at which place counsel say there were to be races. Then the letter contains these words: “Look after'drivers and everything and I will see you well paid and a present besides. I will give you a horse good enough to go down and beat the gang — before (I am done).” The letter then proceeds with other matters about the farm. Appellee construed the quoted part above to mean that he would thereafter be paid a reasonable compensation for his services, and he testified that he thereupon took entire charge of the farm and dairy business and horse business, and it is clear that he relied upon that letter as giving him an increase of compensation for his increased responsibility. He testified that he considered $80 per month the price which he ought to have, and he produced a witness, a farmer in the neighborhood familiar to some extent with the service he rendered, who testified that $80 per month was the reasonable and going price for such services. Appellant produced several witnesses owning large farms in that county, who testified that $40 per month was the usual and going rate for such services. These men, however, were not specially familiar with the responsibilities assumed by appellee and they were talking' with reference to farms where the owner lived on the farm or near by and was in constant touch with its operation. One of them, who hired a foreman, refused to state what he paid his foreman and refused to testify that it did not exceed $40 per month. The wages herein referred to were in addition to board and lodging. Appellee’s successor testified that he did the work for $50 and his dinners, and that he lodged and otherwise boarded himself, but it also appeared that he claimed more and afterwards settled on that basis. Shine, a nephew of appellant, testified that near the close of appellee’s employment he was sent by appellant to the farm to go over the accounts of the farm, and that while he was there appellee told him that he was working at $40 per month. Appellee denied this conversation.

The letter of June 25,1906, from appellant to appellee, is capable of the construction that appellant meant that he would see appellee well paid for his services in connection with getting the four colts to Lexington. His horses, one of which he said he was going to give appellee, ranged in value from $2500 to $10,000. Appellant never gave appellee any horse, and he did not, after the Lexington races were over, offer him any additional compensation because of his services there. The letter contained instructions about many other matters connected with the farm and is capable of the construction that he intended to see appellee well paid for all the work he thereafter did for appellant. Certainly if appellant understood that appellee was working for him for $40 per month all the time, it is strange that he should have told him that he would see him well paid. In view of the large increase in appellee’s duties and responsibilities from the time he took charge of everything and appellant went to the south to remain, the jury might well believe that appellant meant that because of these added responsibilities and duties appellee would be well paid and would be paid more than $40 per month. If the jury refused appellant the credit for $200, hereinafter discussed then a computation will show that they allowed appellee about $55 per month. The third item of the bill of particulars was as follows:

“To superintendent of farm and stock from March 1, 1906, to Sept. 28, 1909, 42 months and 28 days, at $80 per month. $3,435.00”

Appellant contends that this means that there was an express contract for $80 per month, and that such express contract for $80 per month is not proved, and that appellee could not recover for that period under an implied contract. We are of opinion that the bill of particulars does not mean to state whether appellee seeks to recover for that time under an express or an implied contract, but only states the time and the amount which he would claim. While the jury might have found differently under this evidence, yet we cannot say that they should have done so nor that their finding is unjust to appellant.

Appellant claimed a credit for $200 which appellee did not admit. The burden was upon appellant t.o prove that credit. He testified that in West Virginia, where he was at work upon a railroad contract, he placed $200 in bills in an envelope with a piece of paper on which he wrote that this was to pay the men, addressed the envelope to appellee, took it and other mail to the post office, handed it to the postmaster, who came out to him and received it, and told bim to .register this letter, but afterwards learned that he did not do so. Shine testified that he saw appellant put the money in the envelope but did not see him deliver it to the postmaster, and that when he afterwards went over appellee’s accounts, lie called appellee’s attention to the fact that he had not credited appellant with this $200 and that appellee said that he received it and that he had at the house the envelope in which the money came. Appellant testified that at about the end of appellee’s employment appellee admitted to him that he received this money. Appellee denied that he received the money and that he made any such admissions either to Shine or to appellant. Appellant was a business man. He had a bank account here in Illinois. He made all other remittances to appellee by check. He gave no reason why he sent this remittance in bills. It was an unsafe way to send money and it was unreasonable that he should do it. He did not even write a letter to inclose with the money, giving either appellee’s name and address or his own. He did not testify that he paid the postmaster the price of a registered letter, nor did he prove by the postmaster that he delivered such a package to him with directions to register it. Appellant testified that appellee is honest. The receipt of such a package through the mails on one occasion only could not fail to be remembered by appellee. We are of opinion that the jury were warranted in concluding that appellant had not supported the alleged credit by a preponderance of the evidence.

Complaint is made of the ruling of the court upon the instructions, but when they are all read as a series, we conclude that the jury were properly and sufficiently instructed. The refused instructions are in part embodied in those which were given for appellant and they omit the element of the increased .duties and responsibilities placed upon appellee, and were in that respect insufficient under Ingalls v. Allen, 132 Ill. 170.

The judgment is therefore affirmed.

Affirmed.


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    C. Otto Anderson, Appellant, v. Lon Eastman, Appellee.
    Gen. No. 5588.
    1. Verdicts — when not disturbed as against the evidence. A verdict will not he set aside as against the evidence unless clearly and manifestly so.
    2. Sales — when instructions as to warranty proper. Instructions are good where their effect is to tell the jury that if a complete contract of sale with or without warranty had been made on the previous day then such subsequent representations, made after the property was delivered and accepted hut before the last of the money had been paid, would not constitute a warranty where no new or additional consideration was paid.
    3. Instructions — effect of use of ivord “plaintiff” where “defendant" was intended. Such a clerical error if obvious to the jury will not effect a reversal.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Johnson & Johnson, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Dibell

delivered tlie opinion of tlie court.

Anderson bought a borse of Eastman and paid bim $82.50 therefor. Tbe borse bad tbe beaves. Anderson brought tbis suit against Eastman to recover damages for a breach of an alleged warranty that tbe borse was sound, and bad a judgment before a justice of tbe peace, but on a trial in tbe Circuit Court on appeal, there was a verdict and a judgment for Eastman, from which Anderson appeals.

Appellant and bis witnesses testified to a warranty that tbe borse was sound and of good wind. Appellee and bis witnesses testified that there was no warranty, except that the horse was not balky. Appellant and his witnesses testified that if the horse had been sound, he would have been worth about what appellant paid for hixn and that, in the condition in which he actually was, he was worth about $2.00 or $2.50. Appellee and his witnesses testified that if the horse had been sound he would have been worth about $150 and that, in the condition in which he was when sold, the horse was worth from $80 to $100. XTpon these subjects there is no clear preponderance of the evidence either way. The jury saw the witnesses and heard them testify and the trial judge has approved their verdict and the judgment cannot be disturbed here upon the evidence in this record.

Appellant argues that the 8th and 12th instructions, given for appellee, were erroneous. They were to the effect that if any representations were made by appellee after the sale of the horse was consummated and without a new consideration moving from appellant to appellee, then such representations would not constitute a warranty. The horse was examined and bought on a certain day, on which day in the course of making the bargain appellant now claims the horse was warranted to be sound and appellee now claims, that he was only warranted not to be balky. Five dollars was then paid down for the express purpose of binding the bargain. All the details of the contract had been agreed upon. Appellee was to deliver the horse the next day and the rest of the purchase price was then to be paid. Appellee took the horse to appellant’s home the next day and delivered him to appellant, as agreed, and appellant then paid appellee the balance of the agreed purchase price. Appellant and his two daughters testified that after the horse had been delivered to appellant at the barn and before the money was paid in the house, appellee said .the horse was sound, and appellant testified that this was in answer to a question put by him. Appellee denied that he made that statement. The effect of these instructions was to tell the jury that if a complete contract of sale with or without warranty, had been made on the previous day, then such subsequent representations, made after the horse was delivered and accepted but before the last of the money has been paid, would hot constitute a warranty, where no new or additional consideration was paid. We understand these instructions to correctly state the law. In the 8th instruction the word “plaintiff” is used where the word “defendant” was intended, but. appellant has made no point upon that mistake and it is obvious that it did not mislead the jury.

The judgment is therefore affirmed.

Affirmed.


text:
    School Directors of District No. 181, Appellants, v. George Mathis et al., Appellees.
    Gen. No. 5593.
    1. Injunctions — what essential to restrain expenditure of taxes collected on account of illegality of school district. In order to grant such an injunction the illegality of the organization of the district must first be established.
    2. Injunctions — when services deemed to have been rendered in obtaining dissolution. Notwithstanding work done in obtaining the dissolution of an injunction may subsequently be availed of in connection with obtaining a dismissal of the bill the services rendered will be deemed to have been performed in obtaining the dissolution of the injunction.
    3. Injunctions — when defendant made such at its own request entitled to damages upon dissolution. If the real party in interest is made a defendant at its own request and moves for and obtains a dissolution of the injunction granted it is entitled to an award of damages.
    4. Injunctions — what proper upon assessment of damages after dissolution. If the use of taxes collected is restrained the interest on money borrowed in lieu thereof is properly included in an award of damages after dissolution.
    5. Injunctions — what damages improper upon dissolution. Expenses incurred not shown to have been necessary are improperly included in an award of damages after dissolution.
    6. Schools — how illegality of transfer of territory from one district to another cannot he determined. The illegality of the transfer of territory from one district to another cannot he collaterally inquired into.
    Bill in equity. Appeal from the Circuit Court of Henry county; the Hon. Emeey C. Geaves, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed in part and reversed in part.
    Opinion filed March 13, 1912.
    Harry E. Brown, for appellant; Bartlett S. Gray, of counsel.
    George W. & Jos. L. Shaw, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The school directors of District 181 in Henry County filed a bill in equity against the trustees of schools of township 18, range 5, and the treasurer of said township to enjoin the trustees from apportioning any school taxes collected from sections 5 and 6 to school district 180, and to enjoin the trustees from honoring any orders drawn by district 180 out of the taxes collected from said sections 5 and 6. The bill alleged that sections 5 and 6 had been within said district 181 and still are a part thereof; that the trustees attempted to transfer said sections 5 and 6 from said district 181 to district -180 and that their order on that subject was without jurisdiction for certain defects in the procedure stated in the bill; that because the attempted reorganization of district 180 was invalid, there was now no legal district 180 in existence; that the trustees have ordered a distribution of certain funds on the basis that sections 5 and 6 are a part of district 180 and the treasurer will use said funds for the payment of orders of said district 180 unless enjoined; that the town collector of that township had collected taxes for school purposes from the owners of land in sections 5 and 6 and either has paid or is about to pay the same to the township treasurer and said taxes will be applied for the benefit of district 180 unless the treasurer is enjoined. A temporary injunction was issued and served. Thereafter, the school directors of district 180 petitioned the court to be made parties defendant and that request was granted. Thereupon said school directors of district 180 entered their motion that the injunction be dissolved and the bill dismissed, because it appeared from the face of the bill that it was without equity. Upon a hearing of that motion the injunction was dissolved, and the school directors of district 180 ashed and were given leave to file a suggestion of damages and filed such suggestion, wherein they claimed (1) $50 for solicitor’s fees in securing the dissolution of the injunction, (2) $2.87 as interest on $259 taxes collected upon said sections 5 and 6 from March 30, 1911, the date of the injunction, to June 22, 1911, the date of its dissolution, and (3) “Expenses incurred by said school directors of district No. 180 in and about coming to Geneseo and Cambridge to secure legal advice with reference to said injunction and on hearing on damages, $30.” The court allowed $50 for solicitor’s fees, $2.87 for said interest item, ■and $15.75 for expenses, a total of $68.62 and then dismissed the bill for want of equity. Complainants below appealed and continued the injunction in force under the statute.

There is a valid law under which territory may be detached from one school district and added to another. The bill shows that there was an attempt.by the proper school officers to detach sections 5 and 6 from -school district 181 and annex the same to school district 180. The bill alleges that there are certain defects in the proceedings by which this transfer of territory was attempted, by reason of which defects the transfer was invalid, and that by reason of the imperfection of said proceedings school district 180 legally ceased to exist. The court could not grant a permanent injunction pursuant to the prayer of this bill without first hearing and determining the question whether said proceedings for the transfer of .the territory were valid or invalid. If some court having jurisdiction to determine that question shall decide that the attempted transfer was without legal effect, then the school taxes paid upon land in sections 5 and 6 must be credited to school district 181. If it is determined that such transfer was valid, then such taxes should be credited to school district 180. It is fundamental to the granting of the relief prayed that it be determined that the proceedings for the transfer of said territory were illegal and void. It is settled in Ogle v. City of Belleville, 238 Ill. 389, that the legality of that transfer of territory cannot be inquired into in this collateral proceeding. The court therefore properly dissolved the injunction and dismissed the bill.

The proof shows that the solicitors for school district 180 charged $50 for all the services that they rendered and that that was a reasonable and customary fee for such services in that county. Appellants contend that the services were rendered not only in procuring a dissolution of the injunction, but also in procuring a dismissal of the bill, and that they are not liable for the latter. services. This position is disposed of adversely to appellants’ contention in Marks v. Columbia Yacht Club, 219 Ill. 417, where the court said: “It makes no difference whether there was a demurrer interposed or not, or that the knowledge about the case gained upon the hearing of the motion to dissolve was subsequently used upon the trial of the case on its merits. If the injunction is the primary object of the suit and a motion is made to dissolve, counsel will be entitled to a reasonable fee based upon the labor performed in the attempt to dissolve.” Appellants also contend that the school directors of district 180 were not enjoined and therefore cannot be allowed any damages upon the dissolution of the injunction. District 180 was the real party which was to be deprived by this injunction of the school taxes collected from sections 5 and 6, and it was a necessary party defendant, and it had a right to be made a defendant and to move to dissolve the injunction which prevented it from obtaining the benefit of these funds. It was properly made a defendant, and, when made a defendant, had a right to have this injunction dissolved. We approve the allowance of the solicitor’s fees. The proof shows that the district was deprived of the use of $259.98 from the day of the injunction to the date of its dissolution and that it borrowed money to meet the orders and paid interest thereon to meet the orders which should have been paid out of that fund. It is not disputed that $2.87 was a correct computation and it was properly allowed as damages.

It is not clear what items the court allowed amounting to $15.75. Some of the proof related to the expenses of the. directors of district 180 in attending the hearing upon the assessment of damages. This hearing was four days after the injunction had been dissolved, and for those expenses appellants are not liable as damages. If any director testified as a witness at that hearing he would be entitled to his witness fees and mileage as costs in the case. The sum of eight dollars was also claimed for the use of an automobile to carry the directors to see their lawyers and for other expenses for board and meals at that time and at the hearing of the motion to dissolve. Something is claimed to have been paid to a notary public before whom it is claimed the directors executed some necessary papers. No papers were filed in this cause which were either acknowledged or sworn to by the directors. It is not shown that it was necessary to hire an' automobile or that it was necessary for the directors to make these trips to the county seat, or that the directors held any meeting at which they authorized any such expenses to be incurred. The question presented by the motion to dissolve the injunction and dismiss the bill was purely one of law arising on the face of the bill,. and there is nothing to show that the presence of the directors at the county seat was necessary. We are therefore of opinion that the evidence did not justify the allowance of the item of $15.75 and this regardless of the serious question whether school directors can lawfully be paid by the district for their traveling expenses when upon the business of the district, which question we do not decide. It is manifest that appellants are only liable for such expenses as the district could be compelled to pay.

The decree appealed from is therefore reversed as to $15.75 of the damages awarded and is in all other respects affirmed. Each party will pay the costs made by it in this court.

Affirmed in part, reversed in part.