text:
    Paul Oscar Steidtmann, Appellant, v. The Joseph Lay Company, Appellee.
    Gen. No. 15,391.

      Vebdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless clearly and manifestly against its weight. (See Steidtmann v. Joseph Lay Co., 234 Ill. 84.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 21, 1911.
    Rehearing denied April 5,1911.
    A. W. Martin and Edward H. S. Martin, for appellant.
    Emerson E. McGriff, Frederick S. McClory and Lyman M. Paine, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This case is before this court for the third time. It has also received the attention of the Supreme Court. Steidtmann v. Joseph Lay Co., 234 Ill. 84. The Supreme Court in its opinion says:

“The plaintiff offered to prove by the depositions of witnesses taken in Hamburg, and the testimony of witnesses engaged in the import trade in Chicago, that the meaning of the expressions, ‘laid down here at Bidgeville, Indiana,’ ‘free at Bidgeville, Indiana, U. S. duty unpaid,’ ‘f. o. b. Bidgeville, Indiana,’ and ‘free at Bidgeville, Indiana,’ did not differ in meaning, and according to the common, universal and exclusive understanding of merchants and importers throughout the United States and at Hamburg, their meaning was that the seller was to pay the cost of packing and transportation to Bidgeville, Indiana, and that the expense of customs duty on the goods was to be borne by the purchaser, without deduction from or credit on the purchase price of the goods as quoted. On objection by the defendant the court excluded the evidence.

“The testimony of witnesses is admissible to explain not only technical words of art or science, but words or phrases having a local meaning or a special meaning in a particular calling, trade, business or profession. Such evidence does not contradict or change the written instrument. The presumption is that such terms were used according to their understood meaning in the place or the business with reference to which the contract is made, and evidence as to such meaning is the only method of ascertaining the intention of the parties in entering into the agreement. * * * A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. * * * And this is so whether he knew of the custom or not. * * * Such general custom and technical meaning of words may be proved without being specially pleaded. * * *

The evidence offered should have been admitted.”

By reference to the letters which appear in the opinion of the Supreme Court it will be seen that the plaintiff in error wrote to the defendant in error offering to sell it “Grand bassa 8% cs. * * * pr. lb. c. i. f. New York, U. S. A., duty and consular invoice unpaid, against cas. less or three months’ acceptance from date of b/1 against documents.”

The appellee stated in its letter that it was procuring a similar article, which is a fibre used for making brooms, at $200 per ton “f. o. b. cars at this town, Bidgeville, Indiana, with privilege of deduction of two per cent, for cash in ten days. * * * In order to start this matter so that it can be better understood, we will say we can take five tons of 14 inch and five tons of 16 inch grand bassa, per sample that you^Ptojl, at $200 per ton laid down here at Bidgeville, In^ismsu two per cent off for cash in ten days after arrig|ij^(t In reply to this the appellant wrote: “In ordgj $g do business with you we will meet you and execute this order at your limit of $200 per ton, free at Eidgeville, Indiana, U. S. duty unpaid, two per cent off for cash, within ten days from arrival.”

It will be noticed that the offer made by appellant before the contract was entered into was on the basis of per cwt. at New York, or $170 per ton of 2,000 lbs. The freight from New York to Eidgeville was $5.60 per ton of 2,000 lbs., so that it appears from the record that the price delivered at Eidgeville, on the basis of the offer of the appellant, would be $175.60. It is hardly to be presumed that the appellee would have made a counter offer of $200 per ton at Eidgeville if it had supposed that it would be required in addition to pay the duty, which, as shown by the evidence, amounted to about $40 per ton. It is quite evident therefore that the purchaser expected, when its offer of $200 per ton was accepted, that that meant exactly what it said in its offer—“$200 per ton laid down at Eidgeville, Indiana,”—the duty being paid by the vendor. It may be true also that Steidtmann in accepting the offer and inserting in the acceptance “duty unpaid,” understood that the purchaser would pay the duty. It is fair to presume that he knew what the duty amounted to. If he did so understand, he must also have been aware that he would be receiving $200 per ton for the fibre at Eidgeville as against $170 at New York, which was the offer he made.

There was sharp controversy between the parties as to the meaning of the words “duty unpaid” in the letter from which the foregoing excerpt is taken. On the one side witnesses stated that it meant that the vendee should pay the duty in addition to the stipulated price. On the other hand it was asserted by the witnesses for the appellee that the words meant simply that the duty should be paid by the vendee but deducted from the purchase price. There is no contention between the parties but that under the terms of the contract the freight charges from New York or Newport News to Ridgeville were to have been paid by the vendee and deducted from the purchase price. Witnesses for the appellee insist that the duty should be treated in the same way, that is, paid in the first instance by the vendee and then deducted, as was the freight, from the purchase price.

The jury found a verdict for the defendant on which judgment was entered.

We have carefully examined the abstract in the case and are of the opinion that the lower court committed no error in the admission or exclusion of testimony or in giving or refusing to give instructions tendered by the parties, which should cause a reversal.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Margaret Cashin, Appellee, v. The Graham & Morton Transportation Company, Appellant.
    Gen. No. 15,414.
    Personal injuries—when owner of steamship transportation line not liable. The owner of a steamboat is not liable for personal injuries occasioned by a passenger seeking to get into an upper berth because of its failure to provide means for such ascent, it not appearing that any request for a ladder or for assistance was made or that there was any sudden movement of the boat which precipitated the injury complained of.
    Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed March 21, 1911.
    Statement by the Court. The appellee, plaintiff below, brought suit against the Graham & Morton Transportation Company for injuries claimed to have been sustained in attempting to get into the upper berth in a stateroom, which she had rented from the Transportation Company on a trip from St. Joseph, Michigan, to Chicago.
    The declaration contains two counts. The first one sets out that the plaintiff “rented from the defendant, for a certain consideration in money, the use of a certain stateroom during said trip. In said stateroom were two berths, one above the other, known respectively as the upper and the lower berth, the former being about four feet above the latter and the latter about one foot from the floor of the room. And the defendant, by its servants, then and there showed the plaintiff and her mother to said stateroom, and unlocked the door thereof. And it became and was the duty of the defendant to then and there furnish the plaintiff some means or contrivance wherewith and whereby she could ascend to and descend from said upper berth. But tbis defendant negligently failed to do. And the plaintiff, after partially disrobing, preparatory to ascending into said upper berth, discovered that there was no means of getting into such berth, •except by standing on the edge of the lower berth, grasping the edge of the upper berth with her hands, putting her leg over the edge of the upper berth, and then raising her body. This the plaintiff, in the exercise of due care and caution for her own safety, proceeded to do. Just as she had lifted herself up to a proper height to throw herself into the berth, being exhausted by the physical exertion, and while in the exercise of due care and caution for her own safety, her limbs gave way under the weight of her body, and she fell on the wooden edge of said upper berth, by reason whereof she was then and there seriously injured, and became and was sick, sore, lame and disordered,” etc.
    The second count is substantially the same as the first, except that it recites that it was the duty of the appellant to exercise “that high degree of diligence required of common carriers of passengers;” that it “negligently failed to provide a chair or other accommodation for the plaintiff, reducing her to the necessity of either standing up during said trip or purchasing from the defendant the use of a stateroom or berth. Aad the plaintiff, to avoid standing, did, together with her mother, by whom she was accompanied, rent from the defendant, for a certain consideration in money, the use of a certain stateroom during said trip. ’ ’
    A general demurrer was filed to the declaration, and was overruled.
    The plea of the general issue was then interposed and upon a trial before a court and jury appellee obtained a verdict, upon which a judgment was entered. The usual motions for a new trial and in arrest of judgment were made and overruled, exceptions being taken in due form.
    The only witness testifying as to the manner in which the accident occurred was the plaintiff herself. She testified that on a Sunday afternoon in July, 1905, she and her mother were returning from St. Joseph on a boat of the defendant; that they went through the cabin and found no seats; that thereupon she procured at the purser’s office a stateroom, to which she and her mother were conducted; that in the stateroom there were a stationary washbowl and stool and two berths, the lower berth being about eighteen inches above the floor, and the upper one three or four feet above the lower, and extended about two inches beyond the lower one; that she saw no stepladder or utensil of any kind to assist her in elevating herself from the floor to the top berth. Plaintiff further testified that although she did not see a ladder she did not ask any employe of the appellant to assist her or to furnish her with a ladder; that after her mother had lain down in the lower berth, she, appellee, without asking for assistance from any one, endeavored to climb into the upper berth; that in doing so she slipped, fell a few inches, and struck her right hip on the wooden edge of the berth; that this fall wrenched her hip, which made her sick and caused her great pain.
    Wolseley & Barker, for appellant; Henry W. Wolseley, of counsel.
    Frank Crozier, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

It is urged by the Transportation Company that this case should be reversed, because the evidence does not show any legal liability on the part of the appellant ; because the evidence does not sustain the allegations of the declaration; because the evidence varies from the allegations in the declaration as to the manner of the appellee’s injuries; because the court erred in refusing to give three instructions proffered by the appellant; because the court erred in refusing to give the jury a peremptory instruction to find the appellant not guilty; and in denying the motion in arrest of judgment.

In the view we take of the case, the refusal of the court to give the jury a peremptory instruction to find the defendant not guilty is the only one that needs to be considered. Reference to the foregoing statement will show that neither in the declaration filed in this suit, nor in the evidence offered to sustain the same, was there any allegation of any mismanagement of the boat or any specific negligence of any employe of the boat. The negligence complained of is that the Transportation Company did not furnish “some means or contrivance wherewith and whereby she could ascend to and descend from said upper berth.” It cannot be said that this failure on the part of the Transportation Company was the proximate cause of the accident. The time was the evening. The boat arrived in Chicago at 10:30 p. m. Her mother retired in the lower berth. The plaintiff did not ask any employe of the boat to furnish her with a ladder or other means of getting into the upper berth; she did not attempt to summon any attendant, and apparently did not even ask her mother to assist her in getting to the berth, but undertook to do so herself without assistance. It does not appear that there was any unusual motion of the boat, whether caused by the negligence of the Transportation Company or otherwise.

In our opinion the injuries were the result of a mere accident from which the plaintiff, if she had used proper care, could have shielded herself.

Our attention is called by the appellee to the case of the Pullman Palace Car Co. v. Fielding, 62 Ill. App. 577. This was a decision of this court rendered in February, 1896. Fielding was sick and returning to his home. He tried to secure a lower berth but was unable to do so. He was promised by the conductor of the sleeping car and by the porter that the porter would be at hand at all hours of the night to attend to him. The porter showed him how to ring the bell. About the middle of the night he was awakened by violent pains, and wishing to get down from his berth rang the bell repeatedly but no response came. After endeavoring for twenty-five or thirty minutes at intervals to get the assistance of the porter by ringing the bell, he undertook to get down alone, and as he was doing so the car lurched as if starting to go around a sharp curve, and came back with a sudden jerk, which loosened his hold and threw him out of the berth and across the passage-way, or aisle. The court held that it was the duty of a sleeping car company, which furnishes upper berths, to have steps or other mechanical contrivances to assist a person occupying such a berth to alight from it without danger when the car is in rapid motion, and if steps are furnished, which is usually the custom, that servants be employed to bring them to the aid of the passenger, and in the night time such servants should be awake and ready to respond to the ring of the bell provided to call them. “It is not alone the undertaking of such company to provide a bed to sleep in, but also reasonably safe means of getting into and out of the bed.”

This case goes as far as any we have been able to discover in holding sleeping car companies and vessel owners, who provide sleeping accommodations for passengers, to the duty of providing suitable means for passengers in getting into and alighting from upper berths. It may be and probably is the law that under such circumstances a ladder or steps should be furnished, and perhaps an attendant to assist the passengers.

In the case before us, however, there is no showing that the vessel did not have such ladders and steps. Nor is there any showing but that it would have furnished one of these contrivances to the plaintiff in this case if it had been requested to do so. We hold that it was the duty of the appellee when she found that there was no ladder in the room to demand of the officers or attendants upon the boat that one be furnished to her, and if she required assistance in getting into her berth that she should have asked that an attendant be sent to her.

We find neither in the declaration in the case nor in the evidence produced at the trial, any charge or proof of negligence of such a character as would render the defendant liable.

Judgment reversed with finding of fact.


author: Per Curiam.

text:
    The People of the State of Illinois, ex rel. Otto Frellsen, Appellee, v. L. J. Johnson, Appellant.
    Gen. No. 5428.

      Dram-shops—what petition requesting submission of proposition to voters in compliance with law. Held, that the following petition requesting the submission of the proposition as to whether the town in question should continue to be anti-saloon, was a compliance with the law.
    “The undersigned, resident and legal voters of the town of St. Charles in the county and state aforesaid, respectfully petition that you cause to be submitted in the manner provided by law to the voters thereof at the next election, the proposition ‘Shall this town continue to be anti-saloon territory?’ ”
    Mandamus. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    H. L. Sheldon, for appellant.
    Aldrich & Worcester and F. W. Hartsburg, for appellee.
   Per Curiam.

The town of St. Charles in Kane county became anti-saloon territory in May, 1908, by an election held in accordance with the provisions of the Anti-Saloon Act of 1907. On February 3, 1910, there was filed with L. J. Johnson, the appellant, then acting as town clerk of the town of St. Charles, a certain petition, the heading and preamble of which read as follows:

“To the Town Clerk op the Town op St. Charles in the County op Kane, State op Illinois :
“The undersigned, resident and legal voters of the town of St. Charles in the county and state aforesaid, respectfully petition that you cause to be submitted in the manner provided by law, to the voters thereof at the next election, the proposition ‘Shall this town continue to be Anti-Saloon Territory?’ ”

Appellant, the town clerk, refused to submit the proposition to the people at an election, on the ground that the petition, in form and substance, did not comply with the law. Thereupon one Otto Frellsen caused a petition for a writ of mandamus to compel the town clerk to print the proposition upon the regular ballot and submit it to the people at the town election to be held on April 5, 1910, to be filed in the Circuit Court of Kane county on March 28, 1910, and on the 2nd of April, 1910, three days before the town election, the defendant filed a general demurrer to said petition for mandamus. The demurrer was overruled, defendant elected to stand by his demurrer, a judgment was entered awarding a peremptory writ of mandamus against defendant and that he pay the costs, and from that judgment defendant below appeals, perfecting his appeal the day before the election in question.

That part of the Anti-Saloon Territory Act which applies to the questions here raised is as follows: ‘ ‘ Section 8. All the territory within any political subdivision which has become Anti-Saloon Territory shall continue to be Anti-Saloon Territory throughout its entire extent, notwithstanding any change that may be made in the limits of any such political subdivision, until the legal voters thereof have voted, according to the provisions of this Act, to discontinue such Anti-Saloon Territory, and the following section shall be construed in harmony herewith. * * *

“Section 9. Upon the filing in the office of the clerk, at least sixty days before an election in any political subdivision, of a petition directed to such clerk, containing the signatures of legal voters of an Anti-Saloon Territory or district, in number not less than one-fourth of the total vote cast therein at the last election, to submit to the voters thereof the proposition ‘Shall this............ (political subdivision or district) continue to be Anti-Saloon Territory?’ (provided such petition corresponds in all other respects with the petition in this Act before described) such proposition shall be submitted at such election to the voters of such political subdivision or district and the provisions of sections one (1), four (4),five (5), six (6) and seven (7) of this Act shall apply in all respects, so far as applicable, to the proposition ‘Shall this .............. (political subdivision or district) continue to be Anti-Saloon Territory?’ to the submission of such proposition to such voters, to the petition therefor, to the recording of the vote thereon and to the proof and evidence of the petition and vote, except that in a district such proposition shall be submitted by separate ballot. * * *”

Appellant contends that the court below erred in overruling the demurrer to the petition and also in awarding the writ of mandamus, and, as grounds for these contentions, insists that the petition filed with the Town Clerk was defective in two respects. The first respect is which said petition is alleged to have been defective and not in compliance with the law is in its stating the proposition to be submitted thus: “Shall this Town continue to be Anti-Saloon Territory?” Appellant contends that, in compliance with the law above quoted, that proposition should have been thus stated in the petition: “Shall this Political Subdivision continue to be Anti-Saloon Territory?” or ‘ ‘ Shall this District continue to be Anti-Saloon Territory?” We are of opinion that this contention is not well founded. Section One of the Anti-Saloon Act provides that “In the phrase, ‘Shall this.......... become Anti-Saloon Territory?-’ the proper word, whether ‘town,’ ‘precinct,’ ‘city,’ or ‘village,’ shall be understood to be inserted in the blank, and the same shall he inserted in the petitions filed by and the ballots prepared for the voters of any town, precinct, city or village,” while Section Nine of the same Act, in providing the modus operandi of changing any territory from “dry” back to “wet” expressly states that “the provisions of sections 1 * * * shall apply in all respects, so far as applicable, to the proposition ‘Shall this ........... (political subdivision or district) continue to be anti-saloon territory?’ to the submission of such proposition to such voters, to the petition therefor,” etc. When the provisions of section One of the Act are considered with those of Section Nine, it becomes clear that the use of the phrase “political subdivision or district” in the statement of the proposition thus: “Shall this.......... (political subdivision or district) continue to be anti-saloon territory?” was intended by the legislature to indicate that the proper designation of 'the political subdivision, such as “town,” “precinct,” etc., should be inserted in the blank there left.

The second respect in which it is contended by appellant that the petition to the Town Clerk was defective is that it did not show on its face that the political subdivision wherein the question was to be sub-' mitted had the same boundaries as the political subdivision which had been made anti-saloon territory in the election of 1908. We do not consider that the petition left unstated any essential fact in regard to the territory in which the question was to be submitted. The petition asked that the question be submitted to the voters of “the town of St. Charles.” The boundaries and location of that town were well known, as well known in 1910 as in 1908, and especially to the town clerk to whom the petition was addressed, for he was the keeper of the town records and any change in the boundaries and location of the town of St. Charles since 1908 would inevitably have been brought to his attention as an officer of the town. But, aside from that, no answer was filed by the defendant setting np any change in the boundaries of that town; no presumption could be indulged in that there had been any such change'; and the presumption must naturally follow that there had been no such change. We consider that the petition was properly drawn and filed with the town clerk, that the writ of mandamus was properly awarded and that it should have been obeyed.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Willis

text:
    William Leisteko, Plaintiff in Error, v. Harry Smith et al., Defendants in Error.
    Gen. No. 5312.
    Landlord and tenant—what not defense to action for rent. It is not competent to reduce the amount of the landlord’s claim based upon a written lease by showing a reduction of rental value resulting by reason of bis failure to make certain repairs agreed to be made by him.
    Distress for rent. Error to the County Court of Lake county; the Hon. De Witt L. Jones, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Alfred E. Case, for plaintiff in error.
    Whitney, Dady & Runyard, for defendants in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

In April, 1907, William Leisteko leased a farm in Lake county to Harry Smith and Arnold Bigelow for five years from March 1, 1907, for $1,500: $500 to he paid on the signing of the lease; $300 March 1, 1908; $300 March 1, 1909; $300 March 1, 1910; $100 March 1, 1911. On March 1, 1908, Bigelow sold his interest in the lease to H. S- Roberts. The same month Leisteko made a lease of the farm to Smith and Roberts for four years from March 1, 1908, for $1,000; $300 to be paid on the signing of the lease; $300 March 1, 1909; $300 March 1, 1910; $100 March 1, 1911. The second lease was signed by Roberts only, bnt was treated by all the parties in interest as in force. On March 22, 1909, Leisteko issued a distress warrant against the chattels of Smith and Roberts. The warrant was levied and a copy filed with the clerk of the County Court of said county, to which they interposed a plea of the general issue accompanied by a notice of set-off of certain items of damage claimed by reason of Leisteko’s alleged breach of the covenants of the leases. The damages so claimed were: $400 for failure to roof barn; $175 for failure to build a corn crib; $20 damages to land for cutting a tree; $20 damages to hay stacks; to money exended for lumber, $7; to money expended for fuel, $4; total, $626. It was stipulated that Roberts should be substituted for Bigelow in all his rights and liabilities under the first lease; that both leases might be admitted in evidence; that the $300 rent due on March 1, 1909, had not been paid. Leisteko introduced the stipulations and the leases in evidence and rested. Smith and Roberts introduced certain evidence. The jury found the issues for Smith and Roberts, and assessed their damages at $300. Their verdict canceled the $300 rent admitted to be unpaid and added $300 as damages which was equivalent to allowing $600 for Leisteko’s alleged breach of the covenants of the leases. Three hundred dollars was remitted from the verdict. Motions for a new trial and in arrest of judgment were denied. Judgment was entered for costs against Leisteko and he sued out this writ of error to review such judgment.

There was no evidence that defendants in error sustained any pecuniary damage from plaintiff in error’s alleged failure to roof the barn, or to build a corn crib, or by cutting a tree, or to hay stacks, or that they expended any money for lumber; and no competent evidence that they paid any money for fuel. But there was evidence admitted over plaintiff in error’s objection, which if competent, tended to show that his alleged disregard of the covenants of the leases reduced the rental value from the amount fixed in the leases $100 to $125 per year from the date of the first lease until the end of the rental year following the beginning of the suit. The jury allowed all damages claimed by defendants in error except $26, and the evidence upon which their verdict was founded related principally to plaintiff in error’s alleged failure to roof'the barn, build a corn crib and repair fences. As before stated, the evidence failed to show that any pecuniary damage resulted for a failure to build a corn crib and the notice of set-off did not claim damages for failure to repair fences. The evidence also shows that the fences that needed repair were pasture fences, but does not show that any pecuniary loss resulted to defendants in error because of their defective condition. There was no evidence that the roof of the barn needed replacing. Neither was there a covenant in either lease that plaintiff in error should roof the barn. There was, however, in each lease a covenant that he would cover the south and east sides of the barn with lumber so as to properly protect “hay etc. from the weather.” The evidence shows that there was a shed or leanto on the south and east sides of the barn which was used for horses, chickens and hogs. It seems to be assumed that the covenant in the leases above stated referred to this shed. Defendants in error were permitted to prove over plaintiff in error’s objection that this shed was covered by a hay roof; that the covering was old and rotten and that water would drip through for two or three days after a rain. In as much as the lease expressly limited plaintiff in error’s agreement to covering the sides of the barn, we are of the opinion that the court erred in admitting evidence over plaintiff in error’s objection that the roof of the shed had not been replaced.

The action was not in equity to reform the leases, hut one in law to recover rent admitted to be due and defendants in error’s set-off or recoupment was of no avail save the amount in dollars and cents that the evidence showed they had sustained as damages. Therefore the court erred in admitting as evidence over plaintiff in error’s objection the opinion of witnesses to the effect that the rental value had been reduced by defendants in error’s claim for damages to a sum less than the amount stipulated for in the leases.

Plaintiff in error tried to show on the cross-examination of one of the defendants in error that at but slight expense they could have re-covered the roof of the shed with hay and prevented the damage claimed on account of its defective condition, but he was prevented from doing so on the objection of defendants in error. It has been repeatedly held that a party being damaged cannot stand by and suffer the injury to increase without reasonable effort to prevent further loss. It is not only the moral, but the legal duty of the party who seeks to recover for another’s wrong to use due diligence in preventing loss thereby. This principle applies to a breach of contract, and a party is not entitled to compensation for injurious consequences from such breach, so far as he had the information, time and opportunity to prevent them. Brant v. Gallup, 111 Ill. 487, and authorities there cited. Counsel for defendants in error in argument undertake to evade the operation of this rule of law on the ground that the questions were not proper on cross-examination. The witnesses of whom the questions were asked testified in detail relative to the defective condition of the roof of the shed, and other items of the damage claimed, and was then permitted to give his opinion as to the effect of the same upon the yearly rental value of the premises. To hold then that it could not be shown on cross-examination that defendants in error had or had not attempted to lessen or prevent the damage, erroneously limited plaintiff in error’s right of cross-examination.

There was a covenant in the leases that defendants might take firewood for their own use. One of them testified that they were prevented from taking firewood from the premises, and what, in his opinion, the firewood was worth; hut no witness testified that plaintiff in error did anything to prevent their taking firewood, nor did it appear in what manner they were deprived of it. The statement that they were prevented from taking firewood was a mere conclusion and it was error to admit such statement in evidence over plaintiff in error’s objection.

In as much as the principal damages claimed arose from the condition of the roof of the' shed and there was nothing in the leases binding plaintiff in error to cover it, and the total of all the other damages claimed would not amount to the rent admitted to be due which was wiped out by the judgment even after the remittitur was entered, it is obvious that this judgment does plaintiff in error a serious injustice and should be reversed and the cause remanded.

Reversed and remanded.


text:
    Fred Weir, Appellee, v. The Sanitary District of Chicago, Appellant.
    Gen. No. 5385.
    1. Appeals and errors—effect of failure to file proper abstract. In the second district the failure of the appellant to make up and file a proper abstract is ground for pro forma affirmance.
    2. Appeals and errors—cost of additional abstract. An additional abstract filed by the appellee to supplement an insufficient one filed by the appellant, will be taxed against such appellant.
    3. Jurors—when irregular summoning of, will not reverse. The fact that the jury list was not in strict compliance with the law, also the failure to draw the panel at the proper time, also the failure to summon a second panel from the body of the county, will not reverse (challenges to the arrays having been overruled), in the absence of a showing that the challenger was compelled to accept objectionable jurors.
    Action in case. Appeal from the Circuit Court of Marshall county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied April 6, 1911.
    John C. Williams, Frank J. Quinn and Walter Beebe, for appellant; Homer Barney, of counsel.
    Barnes & Magoon, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Fred Weir brought this action against the Sanitary District of Chicago to recover damages for lands overflowed by water turned into the Illinois Elver from the channel of the Sanitary District. The declaration charged that about sixty-nine acres were damaged thereby. The district’s plea was not guilty, and the trial resulted in a verdict for Weir for $700, and the district prosecutes this appeal from a judgment thereon.

Appellee filed an additional abstract, accompanied by a motion to tax its cost to appellant and the motion was taken with the case. Appellant’s abstract does not show that a judgment was entered against it, nor any exception to a judgment. It does show that the jury returned a verdict for appellee, and the overruling of a motion for a new trial and an exception thereto. It does, however, contain many exceptions which do not appear in the record. It does not set out the challenge made to the array as the same is shown by the record, nor any of the reasons assigned to support the challenge. It does not abstract any of the maps, plats or exhibits referred to in argument by counsel for appellant. The testimony in the record begins on page 96 and ends on page 930, and this appellant has condensed into less than 40 pages. The most that can be said of it, is that it is a sort of skeleton index to the record. Obviously such an abstract does not adequately present the case sought to be reviewed, and clearly is not in compliance with Eule 16 of this court. The failure to abstract the evidence is sufficient to justify us in affirming the judgment. Gibler v. City of Mattoon, 167 Ill. 18; Martin v. McMurray, 74 Ill. App. 44; City of Chicago v. Fitzgerald, 75 id. 174; Arnold v. Gehring, 76 id. 486; Bochner v. Automatic Time Stamp Co., 80 id. 27. But as appellee has filed with us an additional abstract which saves us the trouble of reading a record containing 984 pages, we shall consider the case on its merits, and the cost of the additional abstract will be taxed to appellant.

It appears that when the case was called for trial, counsel for ■ appellant moved the court to quash the venire. The motion set out the grounds therefor and was supported by an affidavit of one of appellant’s attorneys. The panel was exhausted and the clerk was ordered to draw another panel, which was done. A motion to quash, supported by the same showing, was renewed to the new panel, and again denied. The ground upon which the motion to quash was based, was first, that in preparing the list of names for jury service in the different towns of the county, the supervisor of' Henry township had selected less than one-tenth of the names eligible to service; second, that the panel of jurors was not drawn at least twenty days before the return day of the term. Six more names on the jury list from the town of Henry would have met the strict requirement of section 1, chapter 78, Hurd’s Eevised Statutes and would have obviated the first objection. There is nothing in the record to show that any injury resulted to appellant from the omission from the list of the six names necessary to have met the requirements of the statute. A challenge to the array will not be sustained where it is not also shown that an injury has resulted in consequence of the refusal of the court to quash the panel. Wilhelm v. The People, 72 Ill. 468; Mapes v. The People, 69 id. 523; People v. Madison County, 125 id. 334; Siebert v. The People, 143 id. 571. The mere fact that the jury was not summoned twenty days before the first day of the term is not, alone, sufficient ground for. challenge to the array. Rockford Ins. Co. v. Nelson, 75 Ill. 548. The second panel was drawn from the box, whereas it should have been summoned from the body of the county. The examination of the jurors is not set out in appellant’s abstract, and it does not appear from the record that appellant was compelled to take any juryman who was prejudiced against it. The challenge to the second panel was not based on the ground that it should have been drawn from the body of the county instead of the box, and had it been, under the authority of the Siebert case, supra, would not have amounted to reversible error, in the absence of proof that appellant was required to take any juryman who was prejudiced against it. There was no error in overruling the motions to quash the panels.

It is urged that the court erred in excluding oral proof of the consideration of sales of similar lands, and in refusing to allow the deeds of other sales offered, to go in evidence, and in holding that such other lands must be exactly similar to the land involved in this suit. The only sale of similar land in the vicinity of the Weir land, was a sale from one Ford to one Fairbanks, and oral proof of that sale was admitted. Deeds showing sales of land to E. T. Hunter, Eedden Ames, Eobert Ford and Frederick Siebolt were excluded on appellee’s objection. The Hunter land was five miles distant from Weir’s land, and in another county. The Siebolt land was across the Hlinois river, tributary to another market and not similarly situated. Ames testified that his land was a great deal better than Weir’s land, and that he did not fix his valuation of Weir’s land by what he paid for his own. There was, therefore, no error in excluding these deeds from the evidence. "We are of the opinion that full latitude was allowed appellant in proving sales of land similarly situated to Weir’s land, and there is no evidence that the court ruled that such sales should be exactly similar.

Appellant urges as error that it was not permitted to show that Weir’s land and like lands, after January, 1900, and down to 1905, the time at which the suit was commenced, and the period to which both sides limited their proof, had a value and could have been sold or leased as a hunting or fishing preserve. To prove the value of the land for that period, appellant examined one A. C. Wilkie. The court sustained various objections to the questions put to Wilkie, on the ground that he had not shown himself competent to give an opinion on that subject, and appellant’s abstract notes, in each case, an exception to the ruling. The record discloses no exception to these rulings except to the last question put to Wilkie. That question was, “Do you know what the rental value per acre of this land would be between those dates for the purpose indicated in the question?” The objection sustained to this question was proper as the witness had answered to a question just preceding, that he did not know the value of this particular land for fishing and hunting preserve.

The evidence of the parties as to the number of acres overflowed, and the damage the land sustained by reason of the overflow, was widely divergent. Appellee testified that the tract contained 69 acres. For appellant, a witness, without measuring the land, testified that the tract contained about 47 acres. Appellee testified that 44 acres grew grass and had some trees, and that 15 acres could be plowed; that it was fenced and used for pasture, and could be pastured most years from July until the frost killed the grass; that, at the" time of the trial, the fence was gone; that the trees had died except a few on the highest knoll, and that it yielded no pasture except a little one year; that before January, 1900, it was worth $25 per acre, and since that time, about $1 per acre. For appellee, a witness testified that prior to January, 1900, the land was worth $20 per acre, and that since that time it had no value. The record shows that a number of witnesses testified for appellant, that the land was worth from one to eight dollars per acre before 1900, and gave it as much value since; but it is apparent from their evidence, that they were not as familiar with the land or the uses to which it could be put prior to 1900, as the witnesses who testified for appellee.

Appellant’s main contention is, that the evidence does not support as large an award for damages as was made. It is not denied that appellee received some benefits from the use of the land prior to January, 1900, and it is only claimed that the land since then might have been of use for a fishing and hunting preserve, and this claim is not supported by any proof. It is possible that had the judgment been two or three hundred dollars less, it would have been a nearer measurement of appellee’s damages, but we are not inclined to disturb the judgment, as we are of the opinion that it comes within the range of the testimony, and is supported by the evidence of those witnesses who best knew the uses to which the land had been put, and its value for a number of years prior to 1900 and its value and uses since; and we believe that it does substantial justice between the parties.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


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    Charles W. Deitz, Defendant in Error, v. The Dunham and Chemung Township Mutual Fire Insurance Company, Plaintiff in Error.
    Gen. No. 5388.
    1. Insurance—when township company waives provisions of policy as to location of property covered. Held, under the evidence, that notwithstanding the original policy contemplated that the property covered was located in a particular township, yet there was a waiver of the terms of the policy in that respect and that the company was liable upon destruction of such property in another township.
    2. Insurance—how policy to he construed. An insurance policy should be liberally construed in favor of the insured as the language of the policy is that of the company and is intended to give indemnity if possible.
    Assumpsit. Error to the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Calvin J. Hendricks, for plaintiff in error.
    Shurtleef & Heizer, for defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.-

The Dunham and Chemung Township Mutual Fire Insurance Company is a township fire insurance company, incorporated under the laws of Illinois and doing business in nine townships in McHenry county, including the townships of Seneca and Marengo. On May 13,1903, it issued a policy of insurance to Charles W. Deitz for a period of five years on a dwelling house, bam and household furniture, live stock, grain, farming implements, harness and wagons, in the township of Seneca. Some of the items of insurance were after-wards raised or changed, but the insurance was in force as to certain horses, wagons, buggies and harness on the 7th day of December, 1907, when a livery stable barn in the city and township of Marengo, rented by Deitz, was destroyed by fire, and with it eleven horses, seven sets of harness and two hnggies owned by him, being a part of the chattels covered by said policy of insurance. Upon refusal of the company to make good this loss, Deitz brought suit to recover the insurance and the case was tried by the court upon the policy and accompanying papers and a stipulation as to the facts. The court rendered judgment for Deitz for $768.28, being $700 on the horses and $75 on the buggies, after deducting therefrom the amount of an unpaid assessment. The company sued out this writ of error to review that judgment.

More than a year before the fire here in question defendant in error had temporarily removed to the city of Marengo, which it was stipulated was within the limits of the plaintiff in error, and had there rented a livery barn and stored therein his horses, wagons and harness, which had. formerly been on his farm in Seneca township. These chattels defendant in error used during the week in teaming and hauling gravel in the township of Seneca and other townships. On Saturday nights he brought this property to said livery stable barn and kept it there over Sunday. This was his general practice in regard to these chattels hut at times he kept this property in other localities where he was digging and hauling gravel, hut always within the limits of the plaintiff in error, and he still claimed his residence in the township of Seneca.

The plaintiff in error claims, as grounds for a reversal of said judgment, that this policy of insurance did not cover the harnesses and wagons except while contained within buildings or sheds on the premises of the assured in the township of Seneca; that the policy did not cover the horses except while the same were contained in buildings on the farm of the assured or while at large within the limits of the company; that the company conld not lawfully insure any such chattel property while situated in a livery barn, under the provisions of section 107 of chapter 73 of the Revised Statutes; that risks situated on any village plat were prohibited by the by-laws of the company, and it was stipulated that this livery barn was located on a village plat; that the assured is presumed to have known of all the by-laws and rules of the company and is to be bound by them; and that the burden of procuring a waiver is on the one who relies upon it, and that such waiver is not to be inferred from slight circumstances.

It is true that when the property was insured, it was then located in the township of Seneca and was so described in the policy of insurance, and that, when destroyed by fire, it was located in a different township, but, in our opinion, the actions of the plaintiff in error for some time before the loss must be construed as a waiver on its part of any departure from the terms of the policy. From the time of the issuing of the policy to the loss by fire, one Sullivan was the agent of the plaintiff in error. He knew of the fact that defendant in error had removed his chattels from his farm to the livery bam at Marengo and had talked with defendant in error in regard to it on several occasions, but had taken no steps towards the cancellation of the policy. It was stipulated, in addition to the above, that there was no by-law or resolution of the board of directors of plaintiff in error which regulated or limited the duties of its agents and that, during the time mentioned, he, as the agent of the company, had notice and knowledge as to the location and situation of the property in question. We must therefore consider that the company itself had notice thereof. Furthermore, the address of defendant in error, which had been “Woodstock” while he was living on the farm, had been changed to “Marengo” on the mailing list of the company and the notices of assessments had been mailed to him at the latter place. The company must, therefore, be considered to have known of the changed location of this chattel property on October 21,1907, before the loss here in question, when it mailed to defendant in error, at his new address in Marengo, a notice of an assessment upon all of the property covered by this policy, including that removed to Marengo. Even if we assume that the company could have cancelled the policy upon learning of the removal of the insured property from the farm to a livery barn on a village plat in the city of Marengo, still, with full knowledge of the facts, it failed to take advantage of this supposed departure from the terms of the policy, and instead, in effect, consented to such changes by the levying of such new assessment. Having treated the policy as still in force, the company could not now be heard to say that because of such changes in the location of the insured property it can no longer be held liable for any loss thereon. The company cannot collect an assessment upon certain property, having knowledge of the location of such property at the time of the assessment, and then refuse to be held liable for a loss on the same property because of such location. Plaintiff in error claims to be released from its obligation by reason of the fact that this assessment had not been paid at the time of the loss, but this argument is of no force because of a provision in the policy giving a period of ninety days in which to pay any assessment after the same becomes due.

The 18th by-law of the company reads as follows: “No risk shall be taken on any property situated on any village plat.” We do not interpret this to mean that no risk shall be taken on any horse or buggy situated temporarily on any village plat, but, regardless of the proper interpretation of this by-law, the fact remains that plaintiff in error had the power to waive the enforcement of this by-law, and it did waive this condition and others and consented to be responsible for this chattel property in this livery barn in the city of Marengo when, with full knowledge of all the facts, it made this assessment and sent a notice thereof to defendant in error. If the company, upon learning where the property was located, had cancelled the policy defendant in error would have had an opportunity to procure other insurance which would be valid in that location, but to permit the company now to declare that the contract of insurance was not in force would be an injustice to the insured. An insurance policy should be liberally construed in favor of the insured, as the language of the policy is that of the company and is intended to give indemnity if possible. Travelers’ Preferred Accident Assn. v. Kelsey, 46 Ill. App. 373; Phenix Ins. Co. v. Mechanics’ & Traders’ Bldg. Assn., 51 Ill. App. 479; Healey v. Mutual Acc. Assn., 133 Ill. 556; Niagara Fire Ins. Co. v. Heenan, 81 Ill. App. 678, 181 Ill. 575.

.The judgment is therefore affirmed.

Affirmed.


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    Joseph L. Whitlock, Trustee, Defendant in Error, v. Jennie E. Cummings, Plaintiff in Error.
    Gen. No. 5394.

      Jurisdiction—when not acquired. If no summons has been served upon a party and no appearance entered by him a personal judgment rendered against him is erroneous and no intendments will be indulged in its favor upon a direct proceeding to reverse.
    Error to the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Charles T. Farson and Steer, Arderson & Davis, for plaintiff in error.

      No appearance by defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

William Cnmmings died testate seized of certain real estate in Burean county and left surviving him Marvin S., Melvin S., Byron H., Harvey D. and Orlando W. Cummings, his only children and heirs at law. His will was not admitted to probate. On January 9, 1909, Marvin S., Melvin S. and Byron H., their wives joining, filed a bill in the Circuit Court of said county to partition eight tracts of land of which William Cummings died seized. Among other things the bill alleged that Harvey L. and Jennie E. Cummings, his wife, had executed to Joseph L. Whitlock a trust deed on Harvey D. Cummings’ 1/5 interest in the lands to secure a note executed by them. The bill made the other children and their wives, John I. Thompson, trustee, and Joseph L. Whitlock, trustee, defendants. The return on summons read: “Not found as to Harvey D. Cummings and Jennie E. Cummings.” Three supplemental bills were filed in aid of the original bill. Whit-lock, trustee, answered the bills, admitting their allegations, and averred that the trust deed was a first lien upon the interest of Harvey D. and Jennie E. Cummings in the premises, and asked that it be declared as such; and averred that he was entitled to a judgment for the deficit, if any remained after the application of the proceeds of the sale of their interest. He filed a cross bill containing substantially the same averments as set up in the answer, and asked for a judgment as at law; that execution issue thereon. The order referring the cause to the master found that Jennie E. Cummings had entered her appearance in writing, waiving service of summons. The record does not otherwise show that she entered her appearance. No such written appearance was contained therein, and the record is certified to be complete. The third supplemental bill was filed after the reference to the master, and related to a matter immaterial here. The decree based on the master’s report found that the five children of William Cummings, deceased, took the title to the real estate by descent, subject to the indebtedness secured by a trust deed to Thompson, and that Harvey D. Cummings’ 1/5 interest was subject to the lien created by the trust deed executed to Whitlock. The lands were sold, and the master reported that Harvey D. Cummings’ distributive share was $2,485.57 which was paid to Whitlock, trustee, to apply on the debt. On June 24, 1909, a personal judgment was entered in favor of Whitlock as trustee against Harvey D. and Jennie E. Cummings for $7,254.97 and execution was awarded. On June 29, 1909, the death of Harvey D. Cummings was suggested and the judgment was amended by eliminating his name therefrom; and Jennie E. Cummings sued out this writ of error to test the validity of the judgment.

The errors assigned are: that the court erred in entering the judgments of June 24 and 29, 1909.

Defendant in error has not filed briefs, but we will not indulge the presumption that he confesses the errors assigned, and we deem it unnecessary to discuss in detail all the points raised in support of plaintiff in error’s contention, or to consider them in the order stated, and as the judgment was reformed by eliminating Harvey D. Cummings therefrom, no further reference need be made to him. Plaintiff in error was not served with summons and did not appear. Therefore the court never obtained jurisdiction of her person. As this is not a collateral proceeding, no intendments can be considered in favor of the order thai erroneously found that she had entered her appearance.

Whitlock’s cross-bill made plaintiff in error a defendant. No summons was issued thereon. No rule was entered to answer the cross-bill, nor were any defaults taken thereon, nor was there any order entered taking said cross-bill for confessed. Even if the cross-bill was germane to tbe original bill, which we do not decide, yet no duty was imposed upon her to answer said cross-bill until the court had obtained jurisdiction of her person, and she had been called upon by the complainant by rule of court to do so. Michael v. Mace, 137 Ill. 485. Yet the court, in its final decree, entered a personal judgment against her. Such action of the court was clearly without authority.

The decree is reversed and the cause remanded.

Reversed and remanded.


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    Dora M. Leddy, Plaintiff in Error, v. Board of Education of School District No. 99, Defendant in Error.
    Gen. No. 5398.
    1. Schools—when resolution does not require yea and nay vote. A resolution ordering the discharge of a school teacher is not one “involving” the expenditure of money, as the word “involving” is to be construed as the equivalent of “requiring,” and no yea and nay vote is required.
    2. Schools—when meeting of hoard of education deemed regular. Special meetings of a board of education are presumed regular until the contrary is established.
    3. Schools—when discharge of teacher proper. A teacher who is insubordinate in refusing to admit a pupil dismissed by her until the conduct of such pupil can be investigated by the board, may properly be discharged.
    4. Appeals and ebbobs—when reversal will not he ordered. Notwithstanding technical error the Appellate Court will not reverse and remand a cause merely to enable recovery of nominal damages.
    Action commenced before justice of the peace. Error to the Circuit Court of Bureau county; the Hon. R. M. Skinnee, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    J. L. Murphy, for plaintiff in error.
    C. N. Hollerich and J. L. Spaulding, for defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Dora M. Leddy was employed by the Board of Education of School District No. 99 in Bureau county as teacher in the schools of said district for a period of nine months from September 1, 1908, at a salary of $50 payable at the end of each month. She did not teach after November 24, but was paid up to the first of December. In January, 1909, she brought this suit before a justice of the peace of said county to recover her December salary. Prom the judgment before the justice an appeal was taken to the Circuit Court of said county, and a trial there by the court without a jury resulted in a judgment against her for costs, and she sued out this writ of error to review such judgment.

The contract under which plaintiff in error was employed provided, that if, she were “dismissed # * *” for “wilful violation of the rules * * *” or “for breach of * * * contract or any other sufficient cause, * * * then she” should “have no compensation after such dismissal.” On the 15th of October she had trouble with a girl pupil, sent her home and told her to stay at home until she could be obedient. She did not report the dismissal of the pupil to the superintendent of schools, or to the board of education. Neither the superintendent nor board of education, except one member of the board, the pupil’s father, knew of her dismissal until November 21, when her father asked the superintendent for an explanation of her dismissal, and requested that she be taken back into the school. The superintendent, upon learning this, informed plaintiff in error that she had made a mistake in suspending the pupil and failing to report such suspension; that such a suspension amounted to an expulsion; that the power to expel or suspend pupils rested entirely with the board of education; that plaintiff in error should admit the pupil back into her grades until the matter could be investigated by the board of education. She told the superintendent that the pupil could not come back until she made a public apology and gave some assurance that she would do as she was told. The following day, plaintiff in error still persisting in her refusal to admit the pupil, the superintendent dismissed the pupils from the room under the care of plaintiff in error and informed her that she would have to see the board of education before she could teach longer. On November 24, 1908, a special meeting of the board of education was held at which both the superintendent and plaintiff in error were present, and each made statements to the board. There is some conflict in the evidence as to just what was said by plaintiff and the superintendent in the presence of the board, but it is clear that she was requested to take the pupil back and that she said that she thought the girl was not acting right; that she would not teach in the same room and have the girl attend school. The board requested plaintiff in error to go back and teach, assuring her that if the board found the pupil was insubordinate they would take proper action. Plaintiff in error refused to comply with the request of the board. The board gave her until the next day at 10 a. m. to consider the matter and report to the clerk of the board whether she would obey its order. She on the day following, reported to the clerk of the board that she would not go back and teach under the conditions required of her by the superintendent■ and the board; and the clerk reported her refusal. On December' 1, 1908, at a special meeting of the board, a resolution was passed discharging plaintiff in error for insubordination; and a notice of the adoption of such resolution was served on plaintiff in error the same day.

It is contended by plaintiff in error that she was not legally discharged because the resolution passed by the board was a matter involving the expenditure of money, and was not passed by a yea and nay vote; that the special meetings of November 24, 25 and December 1 were not legally called; that if she were legally discharged, she had entered upon her duties as teacher for the month of December and was entitled to wages for that month; if not for the month, at any rate for the 1st and 2nd school days thereof; and for that reason alone, judgment should not have been rendered against her for costs.

"We are of the opinion that plaintiff in error’s dismissal did not involve the expenditure of money within the meaning of the statute. The word “involving,” as used in the statute, has, as we think, the meaning of the word “requiring.” Plaintiff in error’s dismissal stopped the expenditure of money to the extent of her salary, instead of requiring it. There is no evidence in this record that we have been able to discover that the special meetings of November 24, 25 and December 1 were not legally called. The presumption of law is that public officers, including of course members of school boards, have done their duty, and that their official acts have been regularly performed, until the contrary appears.

The record of the meeting of the board shows that plaintiff in error was discharged for insubordination. The contract under which she was employed provided that she might be discharged for a wilful violation of the rules of the board or any other sufficient cause. When she refused to obey the request of the superintendent and the board to continue teaching and admit the suspended pupil until the merits of such suspension could be investigated, she violated the rules of the board, and the board was justified in discharging her on the grounds of insubordination. In our opinion, to hold otherwise would be assuming the position that a teacher, whether competent or not, could assume control of the school affairs, disregard the orders of the superintendent and the board of education, suspend and expel pupils at will and thereby materially interfere with the proper and legal conduct of the school.

Moreover, if there had heen no contract under which the board was justified in dismissing plaintiff in error, we are of the opinion that her refusal to comply with the request of the board justified the board in discharging her under the authority conferred upon them by law. Section 115, chapter 122, paragraph 3 Hurd’s E. S., authorizes the board of school directors “to dismiss a teacher for incompeteney * * * or other sufficient cause.” Section 127, same chapter, provides “that the board of education shall have the powers of school directors, be subject to the same limitations,” and paragraph 9 of the same section empowers them to “dismiss and remove any teacher whenever in their opinion he is not qualified to teach, or whenever in their opinion the interests of the school may require it.”

We think that the request of the board was reasonable, and that her refusal to comply therewith justified the board in dismissing her in the interests of the school.

As stated, she did not teach after November 24, although she held herself in readiness. On the 25th of November she notified the board that she would not teach under the requirements imposed by it. By this she practically discharged herself. But if it were true as contended for in argument by counsel for plaintiff, that the board actually owed her for two days’ teaching in December, that would entitle her to recover nominal damages only, and this court has frequently held that it will not reverse and remand a case where nominal damages only can be recovered.

A number of propositions of law were requested and ruled on, but as the holdings of the court thereon are not seriously questioned in argument, we deem it unnecessary to extend the opinion in a discussion of the legal accuracy of such holdings.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Chicago, Peoria & St. Louis Railway Company, Plaintiff in Error, v. Woolner Distilling Company, Defendant in Error.
    Gen. No. 5401.
    Common carriers—when right to recover demurrage established. Held, that the right of a carrier to demurrage was established. (See Woolner Distilling Co. v. Peoria & Eastern Ry. Co., 136 Ill. App. 479; Schumacher v. C. & N. W. Ry. Co., 207 Ill. 199.)
    Assumpsit. Error to the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded. '
    Opinion filed March 16, 1911.
    Stevens, Miller & Elliott, for plaintiff in error; Wilson, Warren & Child, of counsel.
    Joseph A. Weil and Frank J. Quinn, for defendant in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This is an action in assumpsit, brought by the Chicago, Peoria & St. Louis Railway Company against the Woolner Distilling Company in the Circuit Court of Peoria county to recover demurrage charges claimed to be due from defendant to plaintiff, involving about 190 cars delivered to defendant company from time to time during the period from July 4, 1904, and ending March 30, 1905, the amount of demurrage claimed being based upon the rules of the car service association governing the terminals at Peoria and vicinity. The cause was referred to a spécial referee for the purpose of taking an accounting of the number of days that cars had been detained by the defendant after the expiration, in each case, of the time allowed by the rules of the association for unloading. This referee found and reported that the total number of days detention of cars was 1541 upon which plaintiff was entitled to demurrage at the rate of $1 per day. A trial was had by jury upon this report and certain oral evidence and exhibits and, at the close of the plaintiff’s evidence, the court instructed the jury to find a verdict in favor of the defendant, which was done. A motion for a new trial was overruled and judgment was entered against the plaintiff below, in bar and for costs, from which it prosecutes this writ of error.

The main contention of plaintiff in error is that the court below erred in holding that the railroad company was required to give direct notice to defendant that cars were being held for it, and that evidence showing that the defendant had received such notice, though not from the railroad company, was incompetent, and as a preliminary to a discussion of that point, it is necessary that a short statement be made of the method employed in handling the cars in question.

The cars here in question were all cars of coal. These cars were shipped from the mines, consigned to various wholesale coal companies in Peoria. None of the cars were consigned or addressed directly to defendant in error but, just before or upon their arrival at the railroad yards at or near Peoria, it was the custom for the consignees, the wholesale companies, to give directions to the railroad to cause such cars to be delivered to the defendant in error. The rules of the car service association, which was an association of a large number of railroads having for its purpose the control and disposition of ears, require that notification of the arrival of freight shall be made immediately by some means agreed upon between the agents of the various roads and the respective consignees, and that a charge of $1 per day shall be made by the railroads for each day each car is retained after the expiration of forty-eight hours, which time is allowed for unloading each car. It is conceded by defendant in error that, in each case, notice was given by the railroad company to the wholesale coal dealer to whom the car was consigned on the arrival of the freight, and that, in each ease, the railroad company was then directed to deliver the car to defendant in error. In each case, also, it is conceded or not disputed that defendant in error was notified of the arrival of the coal by the consignee; but defendant in error claims that because it was not notified directly by the railroad company, it cannot be held liable for demurrage by reason of delay in returning the empty cars to the railroad company. The switching facilities of defendant in error were such that only five cars could be unloaded at one time and, if plaintiff in error held more than five cars for delivery to defendant in error, as was almost invariably the case, it was necessary for the railroad company to hold the cars in its yards until it could secure an opportunity to place the cars, in lots of five at a time, on the unloading track of defendant in error.

We are satisfied that notice to defendant in error that a car was at its disposal was sufficient, whether it came from the railroad company through its distributing agency, the Peoria & Pekin Union Terminal Railway, or through the consignee or other parties. The record clearly shows that a certain custom or usage had been in force for many years in that locality, by which the wholesale dealer, upon being notified by the carrier of the arrival of the freight, would give directions to the carrier as to the delivery of the freight and would also give notice to the ultimate purchaser that such a car was in Peoria at its disposal. Even if it should be considered that the purchaser from the wholesale dealer was in fact the consignee and as such entitled to notice, still the rules of the car service association state that such notice shall be given as may be agreed upon, and long continued acquiescence by defendant in error in the manner employed in giving notice would be necessarily held as an agreement thereto. It seems clear that the court below erred in refusing to allow plaintiff in error to prove that actual notice of the arrival of the respective cars in question had been given to defendant in error, and what kind of notice that was and how given. Furthermore, the evidence showed that the Peoria manager of the car service association had several interviews with the manager of the defendant company, concerning the rules of the several railroads relating to car service, and that, on one occasion, before any óf the charges here sued for were incurred, the manager of defendant company agreed to pay without question any demurrage charges accruing after that date. We consider that plaintiff in error should have been permitted by the court below to introduce its evidence tending to show that defendant in error had received notice of the arrival of its freight.

The facts in this case are substantially the same as those contained in the statement of the court in Woolner Distilling Co. v. Peoria & Eastern Ry. Co., 136 Ill. App. 479. See also Schumacher v. C. & N. W. Ry. Co., 207 Id. 199.

For the error in the rulings upon the evidence presented, this judgment must be reversed and the cause remanded to the lower court.

Reversed and remanded.


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    Eugene B. Dickinson, Conservator, et al., Appellees, v. Ross R. Donovan, Administrator, Appellant.
    Gen. No. 5404.
    1. Administration of estates—power of prolate courts with respect to persons presumptively dead. Probate courts have power to administer the estates of persons proven by eye witnesses to be dead and of persons presumptively dead.
    2. Jurisdiction—when court of chancery not ousted. If a suit he instituted in chancery to determine the ownership of a trust fund, the question to he ascertained being as to when a cestui que trust died, the grant of letters of administration by the Probate Court and the making of a finding as to the date of the death of such cestui que trust does not affect the jurisdiction of chancery in such suit.
    3. Presumptions—as to death from, absence. Death from absence is presumed to have occurred seven years after disappearance unless the facts and circumstances establish an earlier death.
    Bill for accounting. Appeal from the Circuit Court of Woodford county; the Hon. Georoe W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Joseph D. Irose, for appellant; Ed. E. Robeson, of counsel.
    Orman Ridgely and Thomas Kennedy, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Mary E. Major died testate. Her will named Jo Major, Elijah W. Dickinson and Roger B. Dickinson, executors and trustees. On November 28, 1890, letters testamentary were issued to the executors named by the County Court of Woodford county. The will provided that after certain payments were made, the property should be divided into as many equal shares as the testatrix had children living at her death, and descendants of any child or children deceased at that time; that an equal share be paid to each of the living children, and the share or shares of any deceased child or children be held in trust for the benefit of the descendants of such deceased child or children, until they reached the age of 21 years; that in case any descendant of any deceased child or children should die before that age, such share should be paid to his or her brothers and sisters. Catharine Wright, a daughter, died prior to the death of the testatrix, leaving Albert M. Wright, her husband, Will O. Wright and Gruy Wright, her only children and descendants. Albert M. Wright married again, and four children were born of such marriage. The executors distributed the estate, except the share belonging to the children of Catharine Wright, deceased, which they retained as trustees. On October 3, 1901, they paid Guy Wright his share. On August 25, 1908, he filed a bill in chancery in the Circuit Court of said county, setting up the facts above stated, and alleged that Will C. Wright died before reaching the age of 21, and averred that by reason thereof, he was entitled to Will C. Wright’s share as the sole surviving descendant of Catharine Wright, and asked that the trustees be ordered to pay the same to him.. The bill, among others, made Albert M. Wright and the children of the second marriage parties defendant. Afterwards Eugene B. Dickinson was appointed conservator for Guy Wright and was substituted as complainant. On December 16, 1908, Boss B. Donovan became a party defendant by leave of court. He filed a cross-bill. It alleged that he was appointed administrator of the estate of Will C. Wright by the Probate Court of Cook county; that an order was entered in that court finding that Will C. Wright died on the 16th day of April, 1900; that Albert M. Wright, his father, Guy Wright, his brother, Charles B. Wright, Fred Wright, Joseph A. Wright and Frank C. Wright, his half brothers, were the only heirs at law of Will C. Wright; that Will C. Wright became 21 years of age in 1898; and was then entitled to his share, but it was not paid to him; that he, as administrator, was entitled to the share of Will C. Wright, and asked that the trustees be ordered to pay it to him. Issués were joined on the bill and cross-bill. On the hearing the court found that Will C. Wright was born on or about November 25, 1877; that he died shortly after April 15, 1893, prior to the time he became 21 years of age; that Guy Wright was the only surviving brother of Will C. Wright descended from Mary E. Major, and that he had no sisters; that the administrator of the estate of Will C. Wright, had no rights or equities in the subject-matter of the suit; and the court dismissed his cross-bill for want of equity, and ordered the trustees to file an account of the trust estate and pay the amount thereof to the conservator of Guy. Wright on his giving them a bond to indemnify them in case Will C. Wright should return; and Ross R. Donovan prosecutes this appeal.

It is contended by appellant that probate courts have exclusive original jurisdiction, and when the Probate Court of Cook county assumed jurisdiction of the estate of Will C. Wright and appointed an administrator, its judgment was conclusive and cannot be questioned in this proceeding. The conservator and trustees reply that as the bill was filed before the Probate Court of Cook county took jurisdiction of the subject-matter, the Circuit Court of Woodford county had exclusive jurisdiction of the trust fund, and the Probate Court was therefore without jurisdiction; that the law does not confer jurisdiction of an estate of a person that is only presumptively dead upon probate courts, but only of the estates of persons who are actually proven by eye witnesses to be dead. We are not disposed to hold that probate courts cannot administer upon the estate of one presumptively dead. Of course such administration would be void if he afterwards appears. And it is equally true that if administration is taken on the evidence of witnesses that they saw the party claimed to be dead buried, nevertheless if either the witnesses were mistaken in their identification of the party, or testify falsely to that fact, and he afterwards appeared, the administration would also be void. It is essential to the management of property and the payment of debts and the conduct of the business of life that power should exist to administer the estate of one presumptively dead. If the administration in Cook county was authorized, as we hold, still it does not follow that the administrator is entitled to the trust fund. The grant of letters of administration only authorized the administrator to receive such personal estate as was due to Will C. Wright at the time of his death, and if he had no estate at that time, the administrator would take nothing. We are also of the opinion that the commencement of this suit constituted no legal obstacle to the granting of letters of administration in Cook county, and that the granting of such letters did not disturb the jurisdiction of the Circuit Court of Wood-ford county, or alter in any way its right to determine whether Will C. Wright died before or after he was 21 years of age, and that such court cannot be deprived of its jurisdiction by the fact that after the bill in this case was filed, those who would inherit the fund if he died after he was 21, procured such a finding from the Probate Court of Cook county.

The material question presented by the record is: when did Will C. Wright die? The evidence shows that he was born November 25, 1877; that he disappeared from his usual place of abode in April, 1893; that diligent inquiry was made at his last place of residence, and among his relatives, and others who would probably have heard from him if living; and that he had not been heard from at the time of the trial. The rule is that the absence of a person for seven years from his usual place of abode or resort and of whom no account can be given, and from whom no intelligence has been received within that time, raises the presumption that he is dead. Whiting v. Nicholl, 46 Ill. 230; Johnson v. Johnson, 114 Ill. 611; Reedy v. Millizen, 155 Ill. 636; Hitz v. Ahlgren, 170 Ill. 60. Applying this rule to the facts above stated, Will C. Wright died in April, 1900, more than a year after he reached the age of 21, unless all the facts and circumstances in evidence give rise to the contrary presumption. Johnson v. Johnson, supra; Reedy v. Millizen, supra; Policemen’s Benevolent Association v. Ryce, 213 Ill. 9.

The evidence showed that Will C. Wright was living at his father’s home in Chicago at the time of his disappearance; that he had always lived at home; that he had a happy disposition and was on friendly terms with the family; that he was not in trouble of any kind; that he could read and write; that he was present at the reading of Mary E. Major’s will; that a copy of the same had been sent to him; that he knew that the trustees had furnished money to buy clothing and other necessities for him; that he knew the money came from Mary E. Major’s estate; and there were facts and circumstances proven from which it might be inferred that he knew that when he became 21 years old, he would receive a share of the same. The proof also shows that he kept a position but a short time; that he had lost his place a day or two before his disappearance, but did not let his father or step-mother know of it; that he left home on the morning of April 15, 1893, ostensibly to go to work; that he did not return that night; that his father and step-mother made a diligent search for him, not only at the place where he worked, but also at the places he usually frequented. They published advertisements in the daily papers through the agency of a company that made a business of tracing lost persons. He has never applied for any help to the trustees of Mary E. Major’s estate, and has never since been heard from. He was a mere boy who had no home except his father’s. He had never independently supported or taken care of himself. His case differs from that of a grown man, self reliant and accustomed to take care of himself. His father had threatened to whip him if he lost another job. He may have run away in order to avoid a whipping. Boys running away from home at that age are likely, in a short time, to return or call for help if living. He must be presumed to have affection for his brother Guy, and also for his half brothers, and apparently did have for his father and step-mother. There is nothing to show that there was any reason why he should not return if living. It is much less likely that a boy of his age -would remain away from home a sufficient time to give rise to the presumption of death than in the case of a grown man, accustomed to take care of himself and possibly embittered by business losses or charged with crime. He knew who and where the trustees were, and if alive would naturally have applied to them for help. In view of his immature age and under all the circumstances appearing in evidence, we are of the opinion that the trial court was justified in holding that the presumption of death arising at the end of seven years was overcome by the contrary presumption that he died before that time and under the age of 21 years.

His death occurring before he reached the age of 21 years, the administrator of his estate had no interest in the share of the estate of Mary E. Major, bequeathed to the descendants of Catharine Wright, deceased, and it was not error to dismiss his cross-bill for want of equity.

The decree is affirmed.

Affirmed.


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    George (Eppo) Imminga, Appellee, v. Winnifred Dinan et al., Appellants.
    Gen. No. 5407.

      Injunctions—when refusal to dissolve etc., proper. Held, under the showing of the record in this cause, that an order refusing to dissolve an injunction and also an order to adjudge in contempt for the violation of such injunction, were both proper and should he affirmed.
    Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Hayden N. Bell, for appellants.

      Charles H. King and Clarence W. Diver, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Appellee was a tenant of appellant in Lake county. They both owned chattels on.the farm. She held a chattel mortgage on two of appellee’s horses to secure an indebtedness of $94. She replevied the horses and possibly other chattels, although the record is vague as to the latter. She advertised the horses for sale under the mortgage. Appellee filed a bill in the Circuit Court of said county to restrain the sale. It alleged that the indebtedness secured by the chattel mortgage had been paid and averred -that the mortgagee (Winnifred Dinan), William Spunner and George P. Spunner have conspired to injure him, and made them defendants. An injunction writ was issued on the bill restraining the sale of “certain personal chattels.” The writ is not in the record, and its full scope cannot be determined. The defendants filed a joint answer signed by their solicitor, and filed their individual affidavits and that of another person in support of the answer, and moved the court to dissolve the injunction. Appellee moved the court that the defendants be attached for contempt, for a violation of the injunction by selling property other than the horses. Both motions were denied, and the cause was referred to the master to state and report an account between the parties, and the defendants prosecute this appeal from the order refusing to dissolve the injunction; and appellee assigns cross-errors on the refusal of the court to adjudge the defendants guilty of contempt.

No certificate of evidence was taken showing what proofs were heard in support of the motions, and for aught that we can know, appellee may have proved that the mortgage debt was fully paid, and appellants may have proved that they had not sold any property included in the injunction.

If, however, the affidavits appearing in the record are assumed to have been presented as proof upon the hearing in support of the motions to dissolve and for an attachment for contempt, and to be all the proofs the court heard, the order denying the motions should be affirmed for the reason that the affidavit in support of the bill was positive that the mortgage indebtedness was fully paid, while those in support of the answer were made upon information and belief only that the indebtedness was not fully paid.

The bill was directed chiefly to the chattel mortgage and it did not distinctly allege that appellants were seeking to sell any other property except that contained in the mortgage, and it appears to be the fact that the chattel mortgage only covered the horses, and appellants have not sold them.

The injunction restraining the sale of “certain personal chattels” was extremely indefinite. It is not shown that appellants are financially irresponsible, and if they have disposed of any of the property belonging to appellee, he will, no doubt, receive credit therefor in'the master’s statement of account.

The order appealed from is affirmed.

Affirmed.


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    Frank Hettinger, Appellee, v. Patrick Drew, Appellant.
    Gen. No. 5410.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against tbe evidence unless clearly and manifestly against its weight.
    2. Instructions—must be predicated upon the evidence. An instruction is properly refused which is not predicated upon any evidence in the cause.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Brooks & Brooks, for appellant.
    John E. Erwin, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Prank Hettinger brought this suit against Patrick Drew, before a justice of the peace of Lee county, to recover damages for an alleged breach of a verbal contract for the sale of 2,000 bushels of corn. Prom a judgment of $66.20 rendered by the justice an appeal was taken to the Circuit Court of said county, and a trial there resulted in a verdict for Hettinger of $60 and Drew prosecutes this appeal from the judgment entered on that verdict.

Appellant here urges that the verdict is manifestly against the weight of the evidence, and that the court erred in refusing an instruction requested by him.

The evidence is undisputed that on September 23, 1909, appellant entered into an oral contract with appellee to sell him 2,000 bushels of No. 3 grade corn at fifty cents per bushel to be delivered on or before December 25, following. Appellant now claims that the contract also contained a provision that if the corn did not grade as No. 3 appellee should pay forty:nine cents per bushel for .it.- Appellee denied that the contract contained such a provision. On December 16, 1909, appellant hauled ten loads of corn said to contain sixty bushels each, to appellee’s elevator. Appellee examined the corn and decided it would not grade No.

3 and refused to receive it and pay fifty cents per bushel for it. Appellant did not ask appellee to take the corn at forty-nine cents per bushel, but asked him what he would pay for it, and appellee replied that he would not take it at any price, but that he would ship it to Chicago and allow appellant whatever it would sell for less the expenses and Ms commissions. Appellant declined this offer and said to appellee that he could sell the corn as No. 3. Appellee replied that if Lang or Ostrander, other grain buyers, took it for No. 3 he would not ask for commissions, and appellant said that if he did not sell it for grade 3 he would pay appellee three cents per bushel as commissions, which would be the amount of the judgment obtained. Appellant then drove with his corn to Ostrander’s elevator and. he refused to take it and appellant took it home. Appellant claims that he afterwards sold the corn as grade No. 3. The evidence shows that appellant sold 300 bushels of corn to a neighboring farmer who needed it to feed for fifty-three cents per bushel, which was the price No. 3 corn was selling at, but the farmer testified that he was unfamiliar with grades, and did not know whether the corn he purchased would ■ grade No. 3 or not, but that he had to have it to feed and appellant offered it to him for fifty-three cents per bushel and he bought it. Appellant sold the rest of the corn to his brother, who testified on the trial be- - fore the justice that it graded No. é and on the trial in the Circuit Court that it graded No. 3. He, however, was not in the business of buying and grading corn and assumed without knowing that a certain part of the corn was that wMch had been intended to be delivered to appellee. He mixed with the 1,700 bushels of corn which he assumed was that which would have been delivered to appellee 400 bushels of other com which he bought of appellant and sold the whole amount not as grade 3 but as no grade corn. Ostrander testified that the corn that appellant drew to his elevator after appellee had refused to accept the corn tendered by appellant would not grade No. 3 and he was doubtful if it would grade No. 4.

In contradiction of appellant’s contention that it was a part of the contract that if the corn did not grade No. 3 appellee should take it at forty-nine cents per bushel is not only appellee’s expressed denial, but the further fact that at the trial of the case before the justice appellant did not testify to any such contract, and that he does not now claim that when he hauled the corn to appellee and appellee declared that it would not grade No. 3, and declined to receive it, that he then told appellee that under the contract he would have to take it at forty-nine cents per bushel. He did not testify that at that time he said anything about forty-nine cents, but only that he asked appellee what he would give for it. '

It was for the jury to reconcile the conflict in the evidence and decide whether the corn tendered appellee was No. 3 corn; and whether appellee agreed to pay forty-nine cents for it, if it was not No. 3. The jury and the trial judge who saw the witnesses and heard them examined and cross-examined, having decided these questions in favor of appellee, we see nothing in the record to warrant us in holding that the verdict is against the weight of the evidence.

Appellant’s refused instruction told the jury that if they believed from a preponderance of the evidence that appellee and appellant entered into an agreement that appellant would deliver 2,000 bushels of corn to appellee at fifty cents per bushel if it graded 3 and forty-nine cents if it graded 4, and if they further believed from the evidence that appellant tendered a whole or part of. the corn to appellee and offered to take a 4 grade and forty-nine cents per bushel and appellee refused to receive the corn, then the jury should find the issues for appellant. This instruction was based upon the supposition that there was evidence that appellant tendered the corn to appellee and offered to take a No. 4 grade at forty-nine cents per bushel and that appellee refused that offer. There was no evidence upon which to base such an instruction and therefore no error in its refusal.

The judgment is affirmed.

Affirmed.