text:
    Henry W. Leman v. Edwin Sherman et al.
    1. Will-—Appointment op trustee—Intention.—Where a will declared that “ in case of the death, resignation, refusal or inability to act of said trustee, I hereby direct that a new trustee be appointed by the county-court of said county (Cook) upon the application," etc., and the clause relating to such trustee’s bond was as follows, “ to file the same in the office of the clerk of said court.” Construed, that the testator intended to confer the power upon the county court as a court, and not as an individual.
    2. Trusts—Private individual conferring power on court.—-As the county court possessed no chancery powers, and had no authority given to it by law to act in the appointment of trustees in such a case, such power, was invalid. It is not competent for a private individual to confer any power upon a court, as such, over any subject-matter as to which the law has conferred no power or jurisdiction.
    3. Chancery jurisdiction.—The county court having no jurisdiction by law of the proceedings to appoint a new trustee, such proceedings were void and the appointment not valid, and it was proper to resort to a court of chancery to make a new appointment, establish title and secure the complete execution of the trusts.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Mokan, Judge, presiding.
    Opinion filed February 23, 1886.
    Francis C. Sherman died November 7, 1870, in Chicago, where his property was situated, leaving as his widow Electa Sherman, and three children, to wit, Francis T. Sherman, George C. Sherman and Martha S. Marsh. He also left a last will and testament, of which all that is material to this case is as follows:
    “ I do give, bequeath and devise my real estate in said city of Chicago, known as the Sherman House property, and described as lots seven (7) and eight (8), in block thirty-four (34), in the original town (now city) of Chicago, in said county, with the hereditaments and appurtenances, to Joshua L. Marsh, of said city, as trustee, and Ms successors forever.
    " In trust, however, for the following uses and purposes, and upon the following conditions: Immediately upon my death to take possession of said Sherman House property and collect and receive all the rents, issues and profits thereof then due or thereafter to become due ; and upon the termination in any manner of the lease or any portion thereof, or upon any portion thereof becoming vacant, to rent the same to such person or persons, and upon such terms and conditions as he may think best, provided that no lease or demise shall be for a longer term or period than ten years.

      “I do hereby authorize said trustee to insure said property as he may think best, and in case the same or any portion thereof shall be injured or destroyed by tire or otherwise, to repair or rebuild the same, and for that purpose to borrow money, if by him thought advisable or necessary, upon such terms and conditions and for such time and times and in such amounts as he may see fit; and to execute and deliver any and all necessary notes, bonds, mortgages, deeds of trust or other instruments in writing, to secure the payment of the same, upon said Sherman House property, and to renew or extend the time of payment of any such loan, or again borrow money for the payment of any such loan, or any I may have made on the same, and secure the same as aforesaid.

      “ After the payment of all taxes, rates and assessments legally levied, assessed' or imposed upon said property, and all premiums for insurance, and all interest as it matures, that may become due upon money borrowed for the purchase, improvement, rebuilding or repairing of said property, or that may have been borrowed by me and secured on said property, and after paying all expenses necessary for taking care of my cemetery lot at Graceland cemetery, and keeping the same in a suitable and proper condition, not exceeding two hundred and fifty dollars per annum, which I expressly direct him to have done, and all reasonable charges and expenses attending the execution of this trust, I direct said trustee to appropriate the remainder of said rents, issues and profits as follows :
    “ Hntil the indebtedness hereinbefore referred to for the purchase, improvement, repairing or rebuilding said property shall have been fully paid I direct my said trustee to pay to my said wife the sum of six thousand dollars per annum, and to each of my children living the sum of three thousand dollars per annum, all payable quarter yearly, and the remainder to the payment of said indebtedness.
    “ After said indebtedness shall have been fully paid I direct said trustee to pay to my said wife, while living, one third of such remainder, and divide the remainder among my children equally ; and after her death to divide the whole of such remainder among my children equally.

      "In case of the death of any of my said children the heirs of his or her body, if any, shall in all cases represent him oilier and be entitled to his or her share.
    “ It is my desire and I hereby direct that my said trustee shall have, hold and manage said Sherman House property, entire and undivided, and appropriate the rents, issues and profits thereof in the manner hereinbefore specified, during the natural life of my said wife and children, and until the death of the last survivor of them, and until the youngest child of any and all of my said children shall become and be of the age of twenty-one years, and then convey the same to the heirs of my said children, the heirs of each child representing and being entitled to one equal share.

      “In case of the death, resignation, refusal or inability to act of said trustee, 1 hereby direct that a new trustee be appointed by the county court of said county, upon the application of any person interested, and the notice to all other; persons interested, with all the powers of sand original trustee; and my trustee, before entering upon the duties of his trusteeship, shall enter into a bond with good and sufficient security, to be approved by said court, in such sum as'said court may determine, payable to some one of my heirs for the benefit of all concerned, conditioned for the faithful performance of the duties of his trust, and file the same in the office of the clerle of said court.

      “ The provision hereinbefore contained in relation to my trustee giving a bond shall apply as well to my trustee herein named, as to any trustee hereafter appointed.”
    The testator, by a codicil to said will, directed that the compensation of any trustee under said will, for the performance of duties of any kind or description, should not exceed fifteen hundred dollars per annum.
    Francis T. Sherman and George 0. Sherman were nominated in said will as executors. Hov. 15,1870, said will was admitted to probate and letters testamentary issued to said executors. Joshua L. Marsh, who was named in the will as the trustee of the Sherman House property, accepted the trust; and said Sherman House having been destroyed by the great fire of October 8, 1871, he proceeded to borrow money on the real estate and rebuild the house. But July 23, 1875, said Marsh having resigned his trust, one George Taylor was, by the decree of the County Court of Cook county, appointed trustee in place of said Marsh; accepted, entered upon and continued in the performance of the duties of said trust, until August 15, 1881, when he deceased, leaving a wife and infant-children. Electa, the widow of testator, and said George C. Sherman both died, the latter leaving no widow or issue. Francis T. Sherman and Martha S. Marsh aforesaid, were the only surviving children of said testator. But said Martha S. Marsh had two children living, viz., Ida Sherman and Edwin Sherman, and said Francis T. Sherman had four children living, to wit, Frances Ella, who was the wife of *Eben J. ■Marsh, Lulu M., the wife of F. J. Aldrich, Francis C. Sherman and Eaton G. Sherman.
    After the decease of said Taylor, and September 2, 1881, the said Martha S. Marsh filed a petition in the nature of a bill in chancery, in said county court mentioned in said will, setting out said will, the resignation of said Joshua L. Marsh as trustee, the appointment of said George Taylor as his successor, the death of the latter, the situation of 'the trust estate, etc., and with prayer for summons, specific relief, and for general relief. All the beneficiaries were named as defendants, several being infants. A summons in the usual form in chancery was issued, directed' to the sheriff, and by him served on the infants and all defendants found who had not appeared. Guardian ad lAtem, was appointed by the court for the infant defendants, and such proceedings were had in the cause, that the court, finding all the material facts in the petition to he true, caused a decree to be entered appointing Henry W. Le-man as trustee, upon condition that he execute and .file a bond with the clerk of said court in the penal sum of $50,000, and as successor to said George Taylor, deceased, to take charge of, manage and control said Sherman House property, with all the powers given by said will to said original trustee, Joshua L. Marsh; and that the title to said property be vested in said Leman as such successor in trust.

      Said Leman qualified by giving tlie required bond, and entered upon the duties of the trust.
    The service of said chancery summons was the only notice to the infant beneficiaries. There was no conveyance by Joshua L. Marsh, the trustee named in the will, to said George Taylor, who was appointed as his successor by said county court as aforesaid, July 5,1883; the above named Edwin Sherman, son of said Francis T. Sherman, a grandson of the testator and one of the beneficiaries under the will, and who was a minor at the time of said appointment of said Leman, brought this bill in the Cook County Circuit Court, setting forth the foregoing and other facts, making all the other beneficiaries under said will parties defendant, as well as certain creditors who had loaned money to the trust estate, also said Joshua L. Marsh and the heirs of said George Taylor-, deceased, for the purpose of having said circuit court determine whether or not the power purporting to have been given to the County Court of Cook county to appoint a new trustee was valid, the latter court having no chancery jurisdiction or authority given by law to act in such a case; whether, if valid, the power was well executed by the proceedings had in that behalf; also for the removal of said Henry W. Leman as such trustee, for reasons stated, and the appointment of another, and for general relief. U pon a hearing upon pleadings and proofs, the court below found that the said power of appointment of a new trustee, purporting to have been given by said will' to said county court, was invalid for the reason that said court was vested with no authority given by the law to act in such a ease; that therefore the supposed appointment of said Henry W. Leman was void, wherefore the court appointed a new trustee in place of said Leman, Hugh A. White, Esq., who duly qualified. Leman appealed from said decree to this court, and is the only party who has assigned error.
    Mr. James S. Cochean, for appellant;
    that the intent of the testator is the controlling principle; if the words-of the testator, however inaccurately used, will, in the light of the statute, admit of a two-fold construction, one of which will render the power inoperative, and the other uphold it, the court will adopt the latter construction, cited Kindig v. Smith, 39 Ill. 306; DeKay v. Irving, 5 Denio, 655; Mason v. Jones, 2 Barber, 229; Pond v. Bergh, 10 Paige, 140; Mowatt v. Carow, 7 Paige, 339; Wigram on Wills, 127.
    The power of appointment given to the county court by this will was valid and effectual: Morrison v. Kelly, 22 Ill. 610.
    Mr. William C. Wilson and Mr. David L. Zook, for appellees;
    that jurisdiction which a court doe; not possess by law can not be conferred by consent, cited The Central Bank of Georgia v. Gibson, 11 Georgia, 453; Dodson v. Scraggs, 47 Mo. 285-289; Jeffries v. Harbin, 20 Ala. 387; Chapman v. Morgan, 2 Greene (Iowa), 374; Randolph County v. Ralls, 18 Ill. 26 ; Peak v. The People, 71 Ill. 278 ; Monroe County v. Budley, 51 Barbour, 493; Germound v. The People, 1 Hill, pp. 344, 345.
    Jurisdiction can not be extended by contract: Beach v. Nixon, 5 Selden, p. 35; Lindsey v. McClelland, 1 Bibb, p. 262; Bents v. Graves, 3 McCord, p. 280; Folby v. People, Breese, p. 31.
    The county court having no jurisdiction conferred by law, over the subject-matter and there being no power- to confer-such jurisdiction by consent, appearance or contract, the appointment by the court was void: McCleary v. McLain, 2 Ohio, 368; Shaw v. Paine, 12 Allen, 293.
    As to' the poAver of a court of chancery to make appointment : 2 Sugden-on Powers, 506 ; Tiffany & Bullard on Trustees, 376-8 ; Davies 7th Eng. Law & Eq. R., 8-161; Branson v. Branson, 48 How. Prae. 489.
   McAllister, J.

After much consideration of the matter we are of opinion- that the clause of the will in - question respecting the appointment of a new trustee does not admit of the construction that the testator intended to give the power to the individual who might, for the time being, happen to be the judge of the county court, but his intention Avas to confer the power upon the county court as a court, a judicial body, having a clerk, who kept the records of such court.

The proposition does not admit of controversy or discussion, that the County Court of Cook county possessed no chancery powers, and had no authority, given to it by law, to act in the appointment of trustees in such a case. The question, therefore, arises and is directly involved in this case, whether the supposed power in question was a valid power, or in other words, whether it is competent for a private individual to confer any power upon a court as such, over any subject-matter, as to which the law has conferred no power or jurisdiction. It is a familiar rule, and one as to which all the authorities agree, that consent can never give to a court jurisdiction of the subject-matter. That must be given by the law, or it does not exist. So, it must follow, that it is not in the power of a testator to confer upon a judicial tribunal a jurisdiction which is not conferred by law. Shaw v. Paine, 12 Allen, 296. In that ease the power was given to an individual described as the judge of probate for the time being, like the case of Pool v. Potter, 63 Ill. 533.

In Morrison v. Kelly, 32 Ill. 610, the deed of trust gave the power of appointing a new trustee to the court of chancery, as a court. That court having full jurisdiction over the subject-matter, the power was held to be valid. Mr. Justice Walker, in delivering the opinion of the court, used this language : a It will not be contested that a grantor conveying to a trastee, may confer a power upon an officer, as the chief executive of the State, a circuit judge, a probate judge, or upon any court of record, the power to appoint a trustee, in the event of the death of the trustee named in the deed.” That expression “ any court of record,” is invoked by appellant’s counsel as authority for holding the power as properly conferred by the testator upon the county court in this case. The case in which the learned judge used the expression, was one wdiere the court, in which the power was conferred, had jurisdiction of the subject-matter given it by the law. The observation was wholly impertinent and unnecessary as regarded that ease, and is, for that reason, not of binding authority. With all deference to the learning and ability of the judge who made it, we think, upon principle, it can not be the law.

Every question of this nature ought to be susceptible of solution, upon some elementary grounds. The very great pressure of business to which we are subject, and the necessity for a speedy decision by this court, have prevented us from making the thorough investigation which the importance of the question demands, and, if this were a court of last resort, it ought to receive at our hands.

It is apparent from the early discussions as to who may properly be the donee of a power, and when the power was valid, that such donee, was regarded in the same light asan attorney in fact, or an agent. Thus in Hearle v. Greenback, 3 Atk. 675, the question was in what cases, if any, a valid power of appointment could be conferred upon an infant. The arguments of counsel are very instructive. Lord Chancellor Hardwicke, as was usual with him, brought the case down to elementary principles, and held, that an infant could not exercise a power which involved prudence or discretion, before he arrived at years of discretion; that where a testator, by will, provided for the execution of a power by an infant and the power was coupled with an interest, it was void, because no private person could give to such infant a capacity which the law denied. S. C. 1 Ves. Sen. 298; Co. Litt. 52 a.

It is, however, the settled law, that a mere naked or collateral power may be conferred upon an infant, because the law recognizes in him after arriving at years of discretion, a natural competency. But an idiot, lunatic or other person otherwise non compos mentis, can not do any act as an agent or attorney binding upon the principal; because they have not any legal discretion or understanding to bestow on the affairs of others, any more than upon their own. Story on Ag. § 7.

Kent, Vol. 4, p. 325, says : “Every person capable of disposing of an estate actually vested in himself, may exercise a power, or direct a conveyance of the land. The rule goes farther, and even allows an infant to execute a power simply collateral, and that only.” In the execution of a naked, or collateral power, the law recognizes no want of legal capacity. But when he undertakes to exercise a power coupled with an interest, there being a want of legal capacity, the power is void.

The appointment of a new trustee in a case like that in hand, necessarily involves the exercise of prudence and legal discretion.

The reason why a person non compos mentis can not exercise a power is, that not possessing a natural and therefore not a legal capacity, he is incapable of exercising a legal discretion. The reason why an infant can not exercise a power coupled with an interest is the want of legal capacity to do the particular thing, and the law denying him such capacity it is not in the power of a testator to confer it by any words he may write in his will.

We can readily comprehend the reason why a court of chancery can exercise a power created by a deed or will. The law has conferred upon such court full and complete jurisdiction over the subject-matter. It is thereby endowed with a faculty or capacity for the exercise of a legal discretion as respects that subject-matter. But we can -not understand how, upon any known elementary principles, a court which is clothed by the law with no power, authority or jurisdiction, with reference to or over the subject-matter of a power, can be said to possess any faculty or capacity for the exercise of a legal discretion in respect to that subject-matter; because a court is purely the creature of law. It is an institution of the law. It possesses no natural faculties, and its legal capacity is such only as the law has given to it. If, therefore, the law had not conferred upon the county court a legal faculty or capacity for the exercise of a legal discretion in such a case as this was, it is entirely clear that it had none because the testator could confer none by his will. That the law had given the county court no jurisdiction or authority in such a case is not only not questioned but expressly conceded by appellant’s counsel.

It follows from these views that we agree with the chancellor who decided the case below, that the county court having no jurisdiction by law, of the proceedings to appoint appellant, those proceedings were void and the appointment not valid. The nature of the trusts, the great value of the property, the circumstances, all conspire to render it eminently proper to resort to a court of chancery to make a new appointment, establish title and secure the complete execution of the trusts. Hill on Trustees, 4 Am. Ed. 298, 302, *190 et seq.

But aside from the position that the decree below was wrong, appellant’s counsel insist that' the chancellor should have appointed appellant as trustee. The decree operates as a vindication of the motives and conduct of appellant, while acting as trustee under the proceedings of the county court; but we can discover nothing in the circumstances which clothed him with any superior, equitable right to appointment by the chancellor. The trusts were created for the benefit of those named as beneficiaries, and not for the benefit of any person as trustee. Besides, the law has confided the matter of choosing and appointing trustees- in such cases to the sound discretion of the chancellor. Unless there is a palpable abuse of such discretion, an appellate court can not interfere. We perceive no evidence of abuse. The person appointed is a reputable member of the bar, possessed of excellent business- qualifications-lie was acceptable to all-the adult beneficiaries save one only, and appellant was acceptable to none but that one. We think the decree below should be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Eliphalet W. Blatchford et al. v. Noel B. Boyden et al.
    1. Practice—Parties.—-In a suit on a replevin bond, brought by the coroner “ tor use,’’ etc., the party named as one of the usees is in no sense a party to the suit, nor is his presence in the suit, as a usee in any form at all essential to the protection of his equitable rights to a portion of the damages recoverable on the bond.

      2. Evidence—Faulty replevin bond.—A misdescription of the obligor in a replevin bond, when the records of the court show the error subsequently to liave been amended although no actual correction was made upon the papers themselves, will not prevent the bond being admitted in evidence under proper pleading, in a suit for damages thereupon.
    3. Panties—Replevin.—A creditor, at whose suit an attachment is levied upon goods not the property of his debtor, is not liable in replevin for the goods attached, either alone or jointly with the attaching officer.
    4. Chattel mortgage—Fraudulent.—A chattel mortgage expired by two years’ limitation while two executions were in the sheriff’s hands against the mortgagor, and it appeared that a short time prior to the expiration of the two years the mortgagee and mortgagor, in anticipation of the termination of the lien of the mortgage, entered into an arrangement by which the mortgagee was to take possession of the mortgaged property at the expiration of the two years and foreclose the mortgage by making a private sale of the property back to the mortgagor on credit and take a new mortgage to secure the purchase money, which arrangement was in fact carried out. Upon the two executions being levied the next day upon the property so held, and a replevin suit brought by the mortgagee to recover possession of the mortgaged property, Held that the jury were warranted in finding that the entire scheme was undertaken by the mortgagee for the purpose of so dealing with the property as to keep it in the possession and enjoyment of the mortgagor, and to protect it from the liens and claims of other creditors.
    Appeal from the Circuit Court of Cook county; the lion. Louin C. Collins, Judge, presiding.
    Opinion filed February 23, 1886.
    Messrs. Lyman & Jackson and Mr. David Fales, for appellants;
    that at common law a mortgage of goods which the mortgagor docs not own at the time of making the mortgage, though he may after acquire them, is void as to third parties, cited Jones on Chat. Mort., Sec. 138 ; Roy v. Goings, 6 Bradwell, 162; Titus v. Mabee, 25 Ill. 260; Hunt v. Bullock, 23 Ill. 326 ; Williams v. Briggs, 11 R. I. 476; Stowell v. Bair, 5 Bradwell, 104; Pettis v. Kellog, 7 Curtis, 450.
    A mortgage for purchase money takes precedence of all prior liens, and took precedence of the liens of the executions in the hands of the sheriff: Curtis v. Root, 20 Ill. 53; Austin v. Underwood, 37 Ill. 438; Fittz v. Davis, 42 Ill. 392; Jones on Mort., Sec. 464 et seq. Speer v. Skinner, 35 Ill. 282; Christie v. Hale, 46 Ill. 117 and 121; Self v. Sanford, 4 Bradwell, 328.
    In a suit on a replevin bond the defendant’s name must be correctly stated: Matthews v. Storms, 72 Ill. 320; Arter v. People, 54 Ill. 230.
    And a new defendant being instituted avoids action as to sureties: Wells on Replevin, § 433; Hanna v. Int. Pet. Co., 23 Ohio, 625.
    Mr. C. Stuart Beattie, Mr. Wm. H. Sisson, Mr. C. F. Gooding, Mr. T. L. Humphbeyville and Mr. Henby S. Goldsmith, for appellees;
    that a sale of chattels unaccompanied by change of possession is fraudulent per se and can not be explained as against creditors, cited Thornton v. Davenport, 1 Scam. 296 ; Kitchell v. Bratton, 1 Scam. 300; Rhines v. Phelps, 3 Gilm. 460 ; Powers v. Green, 14 Ill. 386.
    The lien of the executors upon the property of Munson was prior to and took precedence of any liens accruing by act of law or of the parties upon such property between April 4 and April 6, 1883: R. S. Ch. 77, § 9; Burnham v. Muller, 61 Ill. 453.
   Bailey, P. J.

This' was an action of debt on a replevin bond. It appears that, on the 6th day of April, 1883, Seth F. Hanchett, sheriff of Cook county, having in his hands two executions against the property of Charles S. Munson, one in favor of John L. Barn run and Ralph Arthur, for $1,048.65 and costs, issued February 10,1883, from the Superior Court of Cook county, and one in favor of Robert E. Jenkins,'assignee of the estate of Josiah R. Butler, for $733.14 and costs, issued March 1,1883, from the Circuit Court of Cook county, levied said executions upon certain goods and chattels, consisting of the furniture and fixtures in the Massasoit House, Chicago. On the following day Eliphalet W. Blatchford and Caleb F. Gates brought their replevin suit and caused said goods and chattels to be replevied from the sheriff. Hanchett, the sheriff, Burke, his deputy, and the plaintiffs in the executions were made parties defendant to the replevin suit.

In the affidavit in replevin, Jenkins was described as assignee of the estate of Josiah B. Butler, but in the writ and bond he was by mistake described as assignee of the estate of Joseph B. Barker. Subsequently, on motion of the plaintiffs in the replevin suit, leave was given to amend the files by changing the name of Joseph B. Barker to Josiah B. Butler, and at the same time and as a part of the same order, the court, on motion of said plaintiffs, ordered that the suit be dismissed at their costs, and that the defendants recover of the plaintiffs the possession of the property replevied, and have a writ of retorno hahendo therefor. It does not appear that said amendment was actually made in any of the papers in said suit. The property replevied not having been returned, the present suit was brought. In this suit Jenkins is named as one of the parties for whose use the suit is prosecuted, by his proper description, it being averred in the declaration that he was incorrectly described in the bond as assignee of the estate of Joseph B. Barker.

Objection was made at the trial to the admission of the bond in evidence on account of this error of description as to Jenkins’ trust capacity. The bond was correctly described in the decoration, and proper averments were made in relation to said error of description in the bond, and we see no reason why it was not properly admissible under -the defendants’ plea of non est factum.

But it is urged that by bringing suit for the use of Jenkins as assignee of Butler, the plaintiffs are seeking to impose upon the obligors a different liability from that imposed by the condition of the bond. In this view we are unable to concur. Jenkins, though named as one of the usees, is in no sense a party to the suit, nor do we think his presence as a usee in any form at all essential to the protection of his equitable rights to a portion of the damages recoverable on the bond. Though made a party to the replevin suit, neither he nor the plaintiffs in the other execution were necessary or even proper parties to that suit. They had no property, either general or special, in the goods and chattels levied upon, and no jiossession of them or right of possession. The legal custody and possession of said goods and chattels was in the officer only.

In Richardson v. Reed, 4 Gray, 441, it is held that a creditor at whose suit an attachment is levied upon goods not the property of his debtor, is not liable in replevin for the goods attached, either alone or jointly with the attaching officer. The principles upon which this decision is based, and which seem to us to be entirely sound and satisfactory, are stated by the court as follows: The grounds and incidents of a replevin suit are incompatible with the joinder of the creditor and officer as defendants. The writ of replevin assumes that the goods which are to be replevied have been taken, detained or attached by the defendant, and are in his possession or-under his control; and it directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond conditioned, among other thing;, to restore and return the same goods to the defendants, and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special, no right to the possession of them, and no right of action against a third person who may take them from the officer or destroy them. How then can the goods be returned on a writ of return or reprisal to him who never had possession of them, or right to possession ? Or how can he be entitled to damages for the taking and detaining of goods in which he had no property ? ” See also Grace v. Mitchell, 31 Wis. 533 ; Mitchell v. Roberts, 50 N. H. 486; Wells on Replevin, Sec. 143.

In this case the sheriff was the proper party defendant to the replevin suit, and the return of the property having been awarded, he was the proper party to recover, in the name of the coroner, for his own use as sheriff, the amount of the liens represented by both the executions in his hands. This right on the part of the sheriff was in no degree affected by the act of the plaintiffs in the replevin bond in improperly joining the execution creditors as co-defendants with him, or in naming them as such defendants in the condition of the bond. The right to enforce the entire liability upon the bond was in the sheriff, and no additional liability was imposed upon the obligors by naming Jenkins in any form as a usee.

The principal controversy in the case arises upon the defense made by the pleas in mitigation of damages filed by the defendants pursuant to the provisions of section 26 of the statute in relation to replevin. In those pleas it is alleged that the merits of the case had not been determined in the trial of the replevin suit, and that at the time of the com, mencement of the replevin suit, the goods and chattels replevied were the property of Eliphalet W. Blatchford and Caleb F. Bates, the plaintiffs in said suit.

To maintain their title Blatchford and Gates offered in evidence a chattel mortgage of said property, dated April 4,1881j executed by Charles S. Munson to them under their firm name of E. W. Blatchford & Co., to secure the payment of three promissory notes payable to E. W. Blatchford & Co., one for §4,800, due on or before six months from said date, and one for §5,800, due on or before twelve months from said date, both signed by Charles S. Munson and Maggie Munson, and one for §13,000, due on or before two years from said date, signed by Charles S. Munson. The mortgage contained a provision authorizing the mortgagees, in case of default, to také possession of the mortgaged property and sell the same at public auction after giving certain notice, or at private sale with or without notice, for cash or on credit.

It appears that a short time prior to the expiration of two years from the date of the mortgage, said notes being unpaid, E. W. Blatchford & Co., and Munson, in anticipation of the termination of the lien of the mortgage, entered into an agreement or arrangement by which they agreed, at the expiration of said two years, to take possession of the mortgaged property and foreclose the mortgage by making a private sale of the property back to M.rason on credit, and take a new mortgage from him to secure the purchase money. In pursuance of this arrangement, Blatchford and Gates, on the 5th day of April, 1883, in the morning or early part of the day, went to the Massasoit House, where said property then was, and took formal possession of the property, without moving it or in any way disturbing it as it was then distributed about the house. There was then another and prior mortgage for $5,000 on the property, in favor of another party, maturing the same day, which Biatchford and Gates paid off and satisfied, and Munson seems to have been indebted to them to a considerable amount for money advanced by them to him subsequent-to the date of their mortgage. Having taken possession of the property in manner above stated, Biatchford and Gates immediately executed a bill of sale of the same to Munson for a consideration therein expressed of $30,000, and reciting therein that the sale was made by them-as mortgagees, by virtue of the terms and provisions of the chattel mortgage from Munson to them. No portion of the purchase money was paid by Munson, but. immediately upon the execution to him of the bill of sale and as a part of the same transaction, he executed, acknowledged and delivered to Biatchford and Gates a chattel mortgage on said property to secure three notes to them, all dated April 4, 1883, one for $1,000, clue six months after date, one for $19,-400, due on or before seven months after date, both signed by Charles S. Munson and Maggie Munson, and one for $13,000, due on or before one year after date, signed by Charles S. Munson, said notes together aggregating $33,400. Said mortgage, as soon as it was executed, was placed on record, the date of its record being at 11 o’clock a. m., of the day of its execution. Shortly after the mortgage was recorded, viz., at about noon of the same day, Biatchford and Gates surrendered the possession of the property back to Munson. On the day following, the sheriff levied on said property by virtue of the executions then in his hands, and the next day they were replevied from him by the coroner.

The evidence tends to show that, at the time of the execution of the mortgage of April 4, 1881, there was an understanding between Munson and the mortgagees, that at its maturity, the mortgage, if not paid, should be renewed for another term, and that shortlybefore its maturity, Munson had several interviews with said mortgagees in relation to the matter, in which it was agreed that they should take such steps as would protect the property against other claims and liens, and that for that purpose the expedient of a foreclosure by taking possession and selling the property under the power in the mortgage to Munson, and taking back from him a mortgage for the purchase money, was adopted.

Such being the evidence, the jury found the issues for the plaintiff and assessed Ms debt at the penalty of the bond, and his damages at §2,543.50, the amount due on the executions in the sheriff’s hands.

We think the evidence warranted the verdict. Even if it should he admitted that the mode of foreclosure adopted, if i* had been undertaken and carried out in entire good faith, would have vested Blatehford and Gates with a lien superior to those of the creditors whose executions were then in the hands of the sheriff, the jury were warranted in finding that the entire scheme was undertaken by Blatehford and Gates for the purpose of so dealing with the property as to keep it in the possession and enjoyment of Munson, and to protect it from the liens and claims of other creditors. Such disposition of the property, made with that intent, however regular in form, was clearly in fraud of the rights of other creditors and void as to them.

We find no material errors in the instructions. In several of them the rule was laid down that, before Blatehford and Gates’ lien could he held superior to that of the execution creditors, it must appear that their mortgage was recorded prior to the delivery of the propeity by them to Munson, and it is claimed that such ruling was erroneous. Whether erroneous or not, it couldnofchave prejudiced the defendants, since the evidence shows without contradiction, that after the chattel mortgage was drawn up, Munson took it and went before a justice of the peace and acknowledged it, and then carried it to the recorder’s office and filed it for record. He then returned to the Massasoit House, where Blatehford and Gates or their representatives had remained in possession of the property, and received a delivery of it from them. There being no conflict in the evidence on that point, the instructions requiring the jury to find snch fact before finding for the defendants could have wrought no prejudice to them.

We find no material error in the record, and the judgment will therefore he affirmed.

Judgment affirmed.


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    Freeland B. Gardner et al. v. James C. Watson et al.
    1. Equity—Limitation.—Courts of equity follow the law in allowing the defense of the Statute of Limitations, and so long as there is no bar at law there is none in equity.
    2. Mechanic's lien—Limitation.—Section 28 of the statute relating to mechanics’ liens, as it stood prior to the amendment of. 1879, providing that suit must be brought within six months after the last payment was due, etc., in order to charge any other creditor or incumbrancer could not be extended by implication, so as to embrace or protect a purchaser of the property sought to be charged with the lien.
    3. Same—Same parties.—It is well settled that where a suit is brought to enforce, a mechanic’s lien against the owner, and upon amendment of the petition, a creditor or incumbrancer is made a party defendant, the suit will not be considered as having been commenced against such creditor or incumbrancer until he is so made a party defendant.
    4. Lis pendens.—For a Us pendens to affect a purchaser, there must he something in the pleadings at the date of the purchase to point his attention to the property purchased as the identical property in litigation.
    5. Landlord and tenant—Improvements.—The right of a tenant to receive payment from the landlord at the expiration of the tenancy, for fix-tures placed on the demised premises during the term, arises from no rule of law or legal duty growing out of the relation of landlord and tenant, but is always a matter of express contract, in the absence of which, the fixtures become the property of the landlord at the end of the lease.
    6. Same.—Such a contract, when not in any way made binding upon the assigns of the covenantors, is a mere personal covenant of the lessor, not running with the land so as to be binding upon his grantee, and gives no lien upon the premises capable of being enforced against the grantees of the original lessor, or any interest in rem. to which a mechanic’s lien could attach.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed February 23, 1886.
    On the 26th day of November, 1873, Jamos C. Watson and William H: Morrell, the appellees, filed their petition against Freeland B. Gardner and Edward, Benjamin, George, William R., and Ann H. Man ierre, for a mechanic’s lien. The petition alleged, in substance, that said Gardner owned and held a leasehold interest in lot one, block eight, in fractional section fifteen, addition to Chicago, under a lease to him from the other defendants, who were the owners of the fee, for a term of ten years from November, 1871; that between July 1, 1873, and November -20, 1873, the petitioners, at the request of said Gardner, set the engine and furnished pipe and fittings and the necessary labor and materials, in altering and repairing the steam heating apparatus, in the building standing on the premises; that the price and value of said labor and materials was $2,979.40, which said Gardner approved and promised to pay, and that of said sum $2,174.03 remained unpaid, and constituted a valid and first lien upon said leasehold estate. The petition prayed for a decree declaring and establishing such lien, and awarding a sale of said leasehold estate for the satisfaction of the same.
    February 14, 1874, Gardner appeared and answered, admitting that he leased said lot as charged in the petition, and erected on that and adjoining lots a hotel building known as the Gardner House, but denied that he employed the petitioners to do the work or furnish tlic materials in question, or ever undertook or promised to pay them therefor. Said answer also alleged that, prior to the furnishing of said work and materials, said defendant had leased said hotel to Fred S. Gould and H. H. Gardner, and that at the time said indebtedness accrued, said Gould owmed the lease and was in sole charge of said hotel as lessee, and that he alone contracted with the petitioner for said labor and materials, and a1 one promised to pay them therefor; that said Gould asked the defendant to have certain repairs done, the petitioners having proposed to said Gould to do the samo for $500 or about that suin, and that thereupon the defendant authorized said Gould to expend upon said repairs $500 or thereabouts of the rents coming due the defen.l.iut, offering to deduct the same from said rent, which was all the authority given by the defendant to said Gould or the petitioners in the premises; that said Gould then owed and has ever since owed the defendant an amount of rent exceeding the whole sum claimed by the petitioners, and that while the defendant did not authorize said Gould to expend so much, he is willing that they should collect the same of Gould, in which case he will deduct the same from the rent then and still due him.
    The defendants Manierre did not appear, nor were they served with process, nor does the record furnish any evidence that any summons was ever issued to them, or any steps taken by the petitioners to bring them into court.
    April 19, 1875, on motion of the petitioners, the cause was referred to the master to take proofs, and with the exception of certain depositions taken before the master May 1, 1875, and February 17,1876, and one deposition taken June 9,1875, in New York, before a commissioner, no further steps were taken in the case until May 7, 1880, at which date the petitioners filed their replication to the answer of Gardner. On the following day an order was entered, on their motion, setting the cause for hearing at the May term, 1839, of the cour', but nothing further was done until May 5,1881, at which date leave was granted the petitioners to amend their petition by making Ahira Cobb and Alva Bradley parties defendant.
    Cobb and Bradley afterward answered, alleging that on the 30th day of March, 1881, they became the owners in fee of the premises described in the petition, through various mesne conveyances from the Manierres, and still own the same. They admit the execution of the lease from the Manierres to Gardner, but allege that on the 1st day of November, 1881, the term of said lease expired, and that all the estate or interest upon which the petitioners claim a lien then terminated and ceased to exist. They also allege that they did not become parties to the petition until more than six months after any amount which may have been owing from Gardner to the petitioners for labor or materials became due, and that the petitioners’ lien, if they ever had one, was extinguished.
    On the 15th day of November, 1881, the petitioners amended their petition by alleging that the lease to Gardner contained a covenant providing for an appraisal oE the value of the demised premises at the expiration of the first five years of the term, as a basis upon which to compute the rent for the following five years, after which the lease provided as follows :
    “ And in case said parties can not agree for an extension of this lease at the end of said term of ten years, then the buildings and improvements which shall have been erected and made on said premises by the party of the second part, shall be appraised in the same manner as is agreed upon above for the valuation of said premises at the end of five years from this date, and shall be paid for by said party of the first part within sixty days after notice that such appraisement has been concluded.”
    By said amendment the petitioners also alleged that on January 15, 1872, said Gardner purchased the north half of lot four in said block eight, and afterward built on said lot one and said north half of lot four, said bxiilding knoxvn as the Gardner House; that the labor and materials in qxxestion were furnished by the petitioners at the request of Gardner, in making repairs on said building,, and that they thereby acquii-ed a valid and first lien upon said building, and upon the fee of the north half of lot four, and upon the purchase price of that part of said building which stands on said lot one. The prayer of the petition was also amended so as to pray for a sale of the building, and also of the north half of lot four, and of the right to obtain payment for the value of the bxiilding at the termination of the lease.
    Defendant Cobb having died, his widow and heirs at law wei-e made parties defendant, and thereupon they, as well as said defendant Bradley, filed their plea and also an answer to the amended petition, setting up in bar of said petition the limitation provided in section twenty-eight of the statute in relation to mechanics’ liens, and also the five years Statute of Limitation, and also alleged in their answer, among other things, that on the 15th day of January, 1872, said Gardner, beingthe owner in fee of said north half of lot. four, executed to one Balcom, as trustee, a trust deed conveying the same to him to secure an indebtedness of $30,000, and that on the 10th day of March, 1874, he executed a second trust deed to one White, as trustee, conveying said north half of lot four, and all of said Gardner’s right, title and .interest in said lot .one, to secure two promissory notes amounting to $60,000; that afterward, on the 6th day of April, 1877, the last mentioned trust deed was foreclosed and said premises sold and conveyed by the trustee to one Goodrich, and that on the 3rd day of March, 1881, said Goodrich sold and conveyed the same to said Co'bb and Bradley, whereby they became the owners of all of said premises, and all rights appertaining thereto, mentioned in the petition; that after said trustee’s sale, said Goodrich paid off said trust deed to Balcom, and thereby became subrogated to the rights of the holder of that security; that the right to receive payment for said building now belongs to the defendants, and that it was through the laches of the petitioners in failing to prosecute their petition with diligence, that their suit was not brought to trial long before the termination of said leasehold estate.
    By further amendment to the petition it was alleged, that the part of the Gardner House situated on lot one exceeded $20,000 in value, and that no steps had been taken under the lease to appraise or pay the value thereof.
    At the hearing, which was had on the pleadings and proofs, it was shown that the Manierres, being the owners in fee of lot one, executed to said Gardner the lease described in the petition; that said Gardner acquired the title in fee of the north half of lot four as stated in the pleadings, and that he subsequently erected on said lot and half lot the building known as the Gardner House; that the petitioners furnished labor and materials in making jepairs on said building as alleged in the petition, for which there was due them at the date of the hearing, including interest, the sum of $3,619.76, but whether the same were furnished at the request of said Gardner or of said Gould, and whether Gardner afterward undertook and promised to pay for the same, the evidence was conflicting.
    The evidence also showed the execution by Gardner of the trust deed to Balcom, for §30,000, on the north half of lot four, and of the trust deed to White for §80,000 on said north half of lot four and Gardner’s interest in lot one, and the subsequent foreclosure of the last mentioned trust deed, and the sale and conveyance of both lots by the trustee to Goodrich, as alleged in the answer. It was also admitted that, by a warranty deed dated September 12, 1871, Gardner conveyed to Goodrich the north half of lot four and the leasehold interest in lot one, and that Goodrich afterward paid the debt secured by the deed of trust to Balcom; also, that by deed dated July 31, 1889, the Manierres conveyed said lot one to Goodrich, and it was proved that by deed dated March 30, 1881, Goodrich conveyed lot one and the north half of lot four to Cobb and Bradley.
    The court found that the petitioners, at the time alleged in the petition, furnished said labor and materials in making repairs on said building at the request of said Gardner and that Gardner afterward promised to pay for the same, and that the petitioners are entitled to a lien on said premises therefor; that said Goodrich purchased said property pendente lite and subject to said lien; and it was decreed that the petitioners have a valid and first lien on said lots and building for §3,619.26, and that the right and titles of all the defendants are subject thereto, and that unless the same be paid within thirty days the master make sale of said premises, or so much thereof as should be necessary, and apply the proceeds to the satisfaction of said lien and costs. From this decree the defendants have appealed to this court.
    Messrs. Cook & TJptok, for appellants;
    that, if during the pendency of a suit in chancery, any new matter is set up by the complainant the defendant may insist upon the benefit of the Statute of Limitations until the time when the new claim is presented, cited Angell on Limitations, 316, note 3, 6th Ed.; Dudley v. Price, 10 B. Monroe, 84; Christmas v. Mitchell, 3 Ired. (N. C.) 535 ; Miller v. McIntyre, 6 Peters, U. S. 61.
    The principle of lis pendens is that the specific property must be so pointed out by the proceedings as to warn the whole world that they meddle with it at their peril, and it is notice only in relation to the property which is the immediate subject of the suit: Lewis v. Mew, 1 Strobhart’s Eq. Rep. 180; Edmunds v. Cranshaw, 1 McCord’s Ch. Rep. 264; Bouvier’s Law Dictionary, Vol. 2, p. 76.
    Mr. John Woodbbidge, for appellees.
   Bailey, P. J.

The defendants having pleaded in bar the limitation provided by section fifteen of the Statute of Limitations, and also that provided by section twenty-eight of the statute in relation to mechanics’ liens, the question is presented whether the case made by the pleadings and proof is one to which either of those statutes applies.

We are inclined to the opinion that the petitioners are not barred of their lien under the provisions of the general Statute of Limitations. So far as that statute is concerned, the right to enforce the lien would seem to continue until the debt itself is barred. Courts of equity follow the law in allowing the • defense of the Statute of Limitations, and so long as there is no bar at law there is none in equity.' It is clear that the debt is not barred, as the present suit was brought against the principal debtor within less than five years from the time the debt became due and payable. In point of fact it was brought within less than one month from the time the debt became due, and was pending continuously down to the date of the decree. The filing of the petition- against Gardner arrested the running of the statute as against the debt.

But the provisions of section 28 of the statute in relation to mechanics’ liens present questions of greater difficulty. That section, as it stood prior to the amendment of 1879, provided that mechanics’ liens should not be enforced as against or to the prejudice of any other creditor or incumbrance, unless suit should be instituted to enforce such lien within six months after the last payment for labor or materials should have become due and payable. This limitation, as held in Dunphy v. Riddle, 86 Ill. 22, can not be extended by implication so as to embrace or protect a purchaser of the property sought to be charged with the lien, and the amendment of 1879, passed several yeirs after the rights of the petitioners had accrued and after their petition had been filed, extending the same limitation to purchasers, can not, we think, be held to affect the rights of the parties to this suit.

The petition was filed November 26, 1873, but as then framed it sought to enforce a lien only on Gardner’s leasehold interest in lot one and the building erected thereon. No allusion was made in the petition in any form to lot four, but the allegation was merely that Gardner held a leasehold interest in lot one, and that the petitioner, at the request of Gardner, furnished the materials and labor in making certain repairs upon the building standing thereon, and the petition prayed merely for a lien upon and a sale of such leasehold interest. Such was the entire scope of the petition until November 15, 1881, at which time it -was so amended as to be made to apply to the north half of lot four.

The evidence discloses two incumbrances on the property executed by Gardner, the first being the trust deed for $30,-000 to Balcom, dated January 15, 1872, conveying the north half of lot four, and the second being the trust deed for $60,-000 to White, dated March 10, 1874, conveying the north half of lot four and the leasehold interest in lot one. The White trust deed was foreclosed April 6, 1877, and on such foreclosure all the property conveyed by that instrument was sold and conveyed by the trustee to Goodrich, who afterward conveyed the same to Cobb and Bradley, Goodrich having in the meantime, in order to protect his title, paid off the Balcom trust deed. It is clear then that Goodrich, as well as his grantees, Cobb and Bradley, so far as they took'title through the foreclosure of the White trust deed, or are entitled to be subrogated to the Balcom trust deed, occupy the relation of creditors and incumbrances, and are to be protected as such.

It is well settled that where a suit is brought to enforce a mechanic’s lien against the owner, and upon amendment of the petition a creditor or incumbrancer is made a party defendant, the suit will ‘not be considered as having been commenced against such creditor or incumbrancer until he is so made a party defendant. Dunphy v. Riddle, supra; Clark v. Manning, 4 Bradwell, 649; Bayard v. McGraw, 1 Id. 134; McGraw v. Bayard, 96 Ill. 146. The Balcom trust deed was executed before the petitioners’ lien accrued, and neither the trust deed nor the party secured was made a party to the suit within the six months limited by the statute. That security, then, is unaffected by this proceeding, and whatever rights Goodrich may have acquired by paying it off, must be held to be still superior to the petitioners’ lien. Having been compelled, in order to protect the title which he had purchased, to pay off the incumbrance, we think that, upon well recognized principles of equity,he is entitled, as against the petitioners, to be subrogated thereto, and that the same right is now held by his grantees. Lunt v. Stephens, 75 Ill. 507.

The other trust deed was executed after the original petition was filed, and therefore, as to all property within the scope of the petition, it must be regarded as a conveyance pendente lite. But the petition, as has already been remarked, did not then embrace the north half of lot four, and had no reference to that lot. It can not be regarded, then, as constituting at that time a suit instituted to enforce a lien on that lot, within the meaning of said twenty-eighth section.

We can not adopt the view suggested by counsel for the appellees, that so long as the building was in fact situated partly on lot one and partly on the north half of lot four, the averment in the petition that the repairs were made in the building, brought lot four within the scope of the petition, although no mention was made of that lot. There was no averment that any part of the repairs were made in that portion of the building situated on that lot, but the averment is, on the contrary,- that they were made in a building situated on the premises described, viz., lot one.

The petition certainly should have contained averments sufficient to constitute it a Us pendens as to the north half of lot four. As held in Lewis v. Mew, 1 Strob. Eq., 180, for a lis pendens to affect a purchaser, there must be something in the pleadings, at the date of the purchase, to point his attention to the property purchased, as the identical property in litigation. In Miller v. Sherry, 2 Wal. 237, it is held that a credit- or’s bill, to be a Us pendens, and to operate as a notice against real estate, must be so definite in the description of the estate, as that any one reading it can learn thereby what property is the subject of the litigation. The same rule substantially is laid down in Griffeth v. Griffeth, 9 Paige, 315; and in Edmunds v. Crenshaw, 1 McCord’s Ch. 252.

Here the petition made no mention of lot four, and eontained no suggestion showing either directly or inferentially that the repairs in question or any portion of them were made on that lot, and it prayed merely to have a lien established on the defendant’s leasehold interest in lot one. How could any one reading it have learned or been led to suspect that lot four was in any sense the subject of the litigation? So far as that lot is concerned, it is manifest that the suit must be regarded as having been commenced Movember 1, 1881, the date of filing the amendment to the petition.

As to lot four, then, the limitation prescribed by section twenty-eight of the mechanic’s lien law applies, and the petitioners’ lien must be held to be subject to the White trust deed. By the foreclosure of that security their lien, so far as it affected that lot, was cut off and wiped out, and became incapable of subsequent enforcement.

How stands their right to a lien as respects lot one ? At the time of the decree the term of Gardner’s lease of that lot had expired, and the lien, so far as it is attached to the term demised to the lessee, necessarily expired with it. It is now sought to extend the lien upon the fund arising under the covenant in the lease, which provides for the payment by the lessor to the lessee at the expiration of the lease, of the appraised value of the buildings and improvements placed on the lot by the tenant during his tenancy.

The statute provides that the lien thereby created shall extend to an estate in fee, for life, for years, or any other estate, or right of redemption, or any other interest which the owner may have in the lot or land at the time of making the contract. The only question is, whether the right secured to the tenant by the covenant in the lease to receive payment from his lessors for the buildings, etc., at the expiration of the tenancy, was an interest in the lot, within the meaning of the statute.

The right of a tenant to receive payment from the landlord, at the expiration of the tenancy, for fixtures placed on the demised premises during the term, arises from no rule of law or legal duty growing out of the relation of landlord and tenant. It is always a matter of express contract, and in the absence of such contract, the fixtures, at the expiration of the term, become, by operation of law, the property of the landlord without payment. We have then to look solely to the' terms of the covenant in the lease to determine the rights of the parties in this case.

It .should be observed that the covenant is merely that the appraised value of the buildings, etc., “shall be paid' for by said party of the first part,” but no mention is made of their assigns, nor is the covenant in any way made binding upon the assigns of the covenantors. In Hansen v. Meyer, 81 Ill. 321, a lease contained a clause binding the lessor to pay for certain fixtures and furniture not then in esse, but which the lessecwas to put into the building demised, but there was no provision that the covenant should be binding upon the assigns of the lessor, and- it was held, on the authority of Spencer’s Case, 5 Coke, 16, that the grantee of the lessor was not liable to the lessee on the covenant, and could not be compelled to pay him for such furniture and fixtures. The covenant was there treated as the mere personal covenant of the lessor, and not running with the land so as to be binding upon his grantee.

We are unable to see how, in the light of the foregoing authorities, or upon any recognized principle of law, the covenant can be held to have given to Gardner any interest in the land itself. He doubtless would have had his action against the Manierres, his lessors, for the value of his improvements, but that gave him no lien upon the premises capable of being enforced against the grantees of the Manierres, or any interest in rem to which a mechanic’s lien could attach.

The petitioners’ lien having expired with the leasehold estate, and they being unable to take anything by virtue of the covenant in the lease, they had no right to be decreed a lien as respects lot one, and their lien upon lot four having, as we have already seen, been barred by the statutory limitation, they were entitled to no relief, and the decree in their favor is erroneous.

The decree will be reversed with directions to the court below to dismiss the petition at the costs of the petitioners.

Decree reversed.


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    Alonzo W. Rollins et al. v. Owen Duffy.
    1. Principal and factor.—Where a factor is directed by his principal to sell at a given price, and he sells below that price, he is guilty of a breach of duty and is liable to his principal for actual damages.
    2. Same—Contract.—Where an agreement was to order goods only when they could be sold at a price named, a breach of this agreement would entitle the principal to recover his actual damages, which would be the difference between the best market price for which the p-in-inal could have sold his goods if they had not been ordered by the factor and what he actually received.
    3. Evidence.—When parts of a conversation are 'material and other parts are not only immaterial but have a direct and manifest tendency to prejudice the other party in the minds of the jury, it is the duty of the court to admit only those portions which are material.
    4. Evidence of efforts to compromise.—Where evidence of efforts to ootain a settlement and of offers to arbitrate was responsive to no issue in the case and had a manifest tendency to unduly prejudice the jury in favor of the defendant, the error in the admission of such evidence can not be cured by instructions.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed March 8, 1886.

      Messrs. Wisigley, Bulkley & Gray, for appellants;
    as to measure of damages, cited Frothingham v. Everton, 12 N. H. 239; Marfield v. Goodhue, 3 Comst. 62; Blot v. Boiceau, 3 Comst. 62; Parker v. Braucker, 22 Pick. 45 ; Brown v. McGraw, 14 Pet. 494; Field v. Farmington, 10 Wall. 149 ; Austin v. Crawford, 7 Ala. 342 ; Ainsworth v. Partillo, 13 Ala. 460 ; Hilton v. Vanderbilt, 82 N. Y. 591; Blair v. Childs, 10 Heisk. 199 ; Beadles v. Hartmus, 7 Baxt. 476.
    As to evidence of efforts to compromise: Rollins v. Duffy, 14 Bradwell, 69; McCausland v. Wonderly, 56 Ill. 412; Wilson v. Sherlock, 36 Me. 297; Small v. Gilman, 48 Me. 515 ; Bonfield v. Parker, 36 N. H. 358.
    Mr. Edward J. Comstock and Mr. Elbert H. Gary, for appellee;
    that the voluntary admissions of a party, no matter when or how made, if made with knowledge of the circumstances, are proper to be given in evidence, cited Robbins v. Butler, 24 Ill. 387; C. & N. W. Ry. Co. v. Boone, 44 Ill. 240; Ashlock v. Linder, 50 Ill. 159; 1 Greenleaf on Ev., § 192, note 2; Snow v. Batchelder, 8 Cush. 513; Arnold v. Johnson, 1 Scam. 196; Yundt v. Hartrunft, 41 Ill. 9.
   Bailey, P. J.

This case was before this court at the October term, 1883, on an appeal by the plaintiffs from a judgment in favor of the defendant for §179 on his plea of set-off. The leading facts involved in the controversy are sufficiently stated in the report of the case as then presented. Rollins et al. v. Duffy, 14 Bradwell, 69. That judgment having been reversed and the cause remanded, the defendant filed two special pleas of set-off upon- which issues of fact were taken by the plaintiffs, and on a trial before the court and a jury a verdict was rendered in favor of the defendant for §218.22, and for that sum and costs the defendant had judgment.

The first of said pleas of set-off alleges, in substance, that connected with the said several supposed premises in the declaration mentioned, and as a part of the same transaction, the plaintiffs, in .consideration of the profits to be made by them, bargained and agreed with the defendant that if they could sell certain blankets belonging to the defendant for a sufficient price so that the defendant should receive for the same, after deducting all expenses and set-offs, the sum of forty-eight cents per pound, then and in that case and not otherwise, the plaintiffs were to direct the defendant to forward said blankets to the plaintiffs; and that the plaintiffs afterward, at divers times, directed the defendant to ship to them said blankets, and the defendant, confiding in said promise and agreement, shipped said blankets to the plaintiffs; but the plaintiffs did not regard their said agreement in this, that the said plaintiffs sold said blankets for such a price that the defendant did not receive therefrom the sum of forty-eight cents per pound, but a less sum; whereby the defendant suffered damages and loss to the amount of $1,000.

The second plea alleges that the plain tiffs, bargained and agreed with the defendant, that if the plaintiffs could sell certain blankets of the defendant for such price that the defendant should receive therefor, after deducting all set-offs, the sum of forty-eight cents per pound, then and in that case the plaintiffs should notify the defendant to "ship said goods, in consideration whereof the plaintiffs wrere to receive whatever sum the plaintiffs should sell the same for in excess of forty-eight cents per pound; and that afterward, at divers times, the plaintiffs notified the defendant that they had sold said goods and requested the defendant to ship the same, whereupon the defendant, confiding in said bargain and agreement, shipped to the plaintiffs said blankets, but the plaintiffs did' not regard them agreement in this, that the said plaintiffs sold said blankets for a price such that the defendant did not receive forty-eight cents per pound therefor, but a much less sum, whereby the defendant suffered damage and loss to the amount of $1,000. Both pleas offer to set off said damages against the damages claimed in the declaration.

A question arose at the trial as to the measure of damages applicable to the case made by these pleas. Is it the difference between what the defendant realized for his goods and forty-eight cents per pound, or the difference, if any, between what the plaintiffs sold them for and the market price? If tlic plaintiffs guaranteed such sales as would net the defendant forty-eight cents per pound, then the defendant is clearly entitled to recover the difference between that price and what he has actually received. That, however, does not seem to be the contract set up in the pleas. Ho agreement is alleged to sell at a price which would net the defendant forty-eight cents per pound or any other specific price, the agreement set up being altogether silent as to how or on what terms sales should be made.

The agreement alleged is, to order goods when, and only when, they could be sold at the price named. This was not a guaranty, but an agreement limiting and defining the mode in which the plaintiffs were to discharge their duties as agents or factors of the defendant. A breach of this agreement, like any other breach of duty by factors, entitled the defendant to recover his actual damages. And what were such damages? If the plaintiffs had not ordered the goods, the defendant would have retained them, and could have disposed of them to other purchasers at the best market price. The difference, then, between what he could have thus obtained and what he has actually received, is the measure of his loss, and therefore the measure of his legal damages.

Where a factor is directed by his principal to sell at a given price, and he sells below that price, he is guilty of a breach of duty, and is liable to his principal for actual damages. As said by Chief Justice Marshall in Hamilton et al. v. Cunningham, 2 Brock. 366, “a person acting on commission, who by his misconduct has brought loss upon his principal, is responsible to the precise extent of the loss produced by that misconduct.35 The amount of the loss is not necessarily dependent upon the price limited by the principal, for it may be that if the goods had not been sold, the principal could not have obtained that price in any other way. See 3 Sutherland on Damages, 30 et seq., and cases cited.

The plaintiffs called witnesses and offered to prove by them the market value of such blankets as those in question in Ghiago, Kansas City, and other western markets, during the year 1881, and from that time up to the date of the trial, which evidence was excluded by the court.

We are of the opinion that under the contract set up in the picas, such evidence was admissible. In Blot v. Boiceau, 3 N. Y. 78, where goods were shipped to a factor with specific instructions as to the price, and he sold beYw that price, it was held that the measure of damages in an action brought by the principal was the amount of injury actually sustained, and that it was competent for the factor, in reduction of damages, to show that the goods at the time of the sale and down to the time of the trial were worth no more than the price for which they were sold. To the same effect see Hinde v. Smith, 6 Lans. 464; Taylor v. Ketchum, 5 Robt. 507. We think the same rule applies here where the plaintiffs were to order the goods only when they would bring a stipulated price.

The court in his instructions to the jury seemed to proceed upon the theory that the contract pleaded and proved, was one by which the plaintiffs guaranteed to the defendant a net product of forty-eight cents per pound for his blankets. If such had been the contract, we think the instructions on this point would have been substantially correct. But the contract being as we have seen of a wholly different character, the instructions were inapplicable and erroneous.

The defendant was examined as a witness in his own behalf, and among other things testified to various conversations between himself and one of the plaintiffs, after the disputes between the parties had arisen. In detailing one or more of these conversations, the defendant was permitted, against the objection and exception of the plaintiffs, to state, and that too at very great length, various efforts and persuasions on his part to obtain a settlement or compromise, and especially to have the matter in dispute between him and the plaintiffs submitted to arbitration. These overtures were simply declined, and this portion of the conversations was connected with no admissions on the part of the plaintiffs and had no tendency to explain or qualify anything said by the other party. This san e evidence was admitted on the former trial, and on the appeal from the judgment then rendered we held, in terms which should not have been misapprehended, that its admission was erroneous. The court, as we gather from the record, seemed to be of the opinion that because certain portions of these conversations were admissible, it was competent for the party-proving them to testify to all that was said by both parties, whether material to the issues or not. "We do not so understand the rule. Where parts of a conversation are material, and other parts are not only immaterial but have a direct and manifest tendency to prejudice the other party in the minds of the jury, it is the duty of the court to admit only those portions which are material. Any other rule would place it in the power of a party to manufacture evidence in his own favor ad libitwm. It would be in his power to engage his adversary in conversation and make to him any statements he pleased, and then come into court and under guise of testifying to a conversation with the other party, get before the jury his own statements, which would be clearly incompetent if offered in any other form.

This evidence of efforts to obtain a settlement and of offers to arbitrate was responsive to no issue in the case, and yet it had a manifest tendency to unduly prejudice the jury in favor of the defendant and against the plaintiffs, and to impress them with his eminent fairness and their unfairness, and it could have been offered for no other purpose. That it had that effect on the minds of the jury can scarcely admit of doubt. The doors ought always to be closed so far as possible against such evidence. Its dangerous tendency can not be obviated by instructions, and that the error’ in admitting it can not be thus cured is well settled. L. B. & M. R. R. Co. v. Winslow, 66 Ill. 219 ; Lycoming Fire Ins. Co. v. Rubin, 79 Id. 402.

The evidence as to the terms upon which the defendant shipped the blankets to the plaintiff, at least so far as those shipped in September are concerned, is conflicting; and while as to that consignment the preponderance of the evidence seems to us to be in favor of the plaintiffs, yet, as the jury have taken a different view of the evidence, we should not be disposed to disturb their verdict on that ground. As to the blankets shipped in October, there seems to us to be very lit-tie, if any, evidence tending to show any contract or understanding in relation to the price at which the goods should be sold.

For the errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Chicago, Rock Island & Pacific Ry. Co. v. Lucy Givens.
    1. Evidence.—The testimony of a person that he did not hear a familiar sound, like the ringing of a bell, when he admits that he was not listening or thinking of the matter, is entitled to very little, if any, weight.
    •2. Speed of train.—In the absence of a municipal ordinance regulating the rate of speed, no rate which is consistent with the safety of the train and those on it can be declared to be negligence per se.

    3. Employe as witness.—The mere relation of employe to one of the parties to a suit, be it a railroad company or an individual, is not of itself, apart from any other consideration, any impeachment of a witness.
    4. Witnesses—Preponderance of evidence.—"While the preponderance of the evidence does not always depend upon the number of witnesses, yet where many witnesses who are in a position to know the facts as to which they testify concur in their testimony, and are only disputed by a few who have had no better opportunities to know the facts, a jury should not act from mere will or caprice, but should have some tangible and substantial reason for so doing before rejecting the testimony of the many and accepting that of the few.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed March 8, 1886.
    Mr. Thomas F. Withrow and Mr. James C. Hutchins, for appellant;
    cited C. & A. R. R. Co. v. Gretzner, 46 Ill. 75; R. R. Co. v. Eaves, 42 Ill. 288 ; Kelly v. R. & T. Co., 11 Mo. 1; C. R. I. & P. Ry. Co. v. Bell, 70 Ill. 107.
    Mr. B. M. Shaffnee, for appellee ;
    cited Wabash Ry. Co. v. Elliott, 98 Ill. 484; Ewing v. C. & A. R. R. Co., 72 Ill. 25; Chicago W. D. Ry. v. Klauber, 9 Bradwell, 613.
   Bailey, P. J.

This was an action on the case, brought by the appellee against the appellant to recover damages for a personal injury. The declaration consists of five counts. The first count charges that the defendant, by its servants, so carelessly and improperly drove and managed their locomotive engine and passenger ears, that by and through the negligence and improper conduct of the defendant, by its servants in that behalf, said engine and cars ran and struck with great force and violence against the plaintiff, and caused the injury complained of. The negligence charged in the second count is a failure to ring a bell or sound a whistle as required by the statute, thereby causing said injury. The third count sets up an ordinance of the town of Lake, requiring all railroad companies whose tracks cross any public street in said town, to station and keep at each crossing a flagman to warn persons traveling in the direction of such crossings of the approach of cars and locomotive engines, or other impending danger, and alleges a failure" by the defendant to station a flagman at the crossing of the defendant’s track, over Fifty-first street, in said town, thereby causing said injury to the plaintiff. The fourth count sets up an ordinance of the town of Lake, prohibiting the running of any locomotive engine or passenger or freight car on any railroad track in said town at a greater rate of speed than ten miles an hour, and avers that said locomotive engine and ears were being run at a greater rate of speed than ten miles an hour in violation of said ordinance, thereby causing said injury. The fifth count is identical "with the first, with the addition of an averment that the plaintiff’s occupation was that of a seamstress, and that by reason of her injury she was prevented from pursuing such occupation.

The defendant pleaded the general issue, and the cause being tried before the court and a j ury, a verdict was rendered, finding the defendant guilty and assessing the plaintiff’s damages at 810,000. The plaintiff afterward entered a remittitur darrma as to §3,000 of said damages, and judgment was thereupon rendered in her favor for §7,000 and costs.

2io evidence was given of the ordinances set up in the third and fourth counts of the declaration, and the court very propérly instructed- the jury to find the defendant not guilty upon those cotints. The verdict then can be' sustained only tinder the other counts. '

The only charges of negligence We have to consider, so far as the defendant is concerned, are, first, that of carelessly and improperly driving and managing the locomotive engine and cars,- as alleged in the' first and fifth counts; and second, that of failing to ring a bell or' sound a whistle; as alleged in the second count. As to the latter of these charges-, we think the evidence clearly and largely preponderates in favor’ of the defendant. The only witnesses by whom the plaintiff sought to prove that no bell was rung, apart from her own testimony, were James Watson and Thomas and John McCann. All three of these witnesses, while' testifying that they heard no bell, admit that they were not listening or paying any particular attention to' the matter. Common experience teaches us that the testimony of a personthat he did not hear a familiar sound, like the ringing of a bell, when he admits that he was not listening or' thinking of the matter, is entitled to very little, if any, weight. See remarks of Mr. Justice Cooley on this subject in Marcott v. M., H. & O. R. R. Co., 49 Mich. 99. The plaintiff testified,- it is true, that she listened and heard no bell. On the other hand, the fireman, whose business it was to see that the bell was ringing, testifies positively that there was a béll rung by steam, Which had been ringing continiiously several miles before reaching the crossing; McMasteis, who was- in the employ of the defendant as a yardmaster, and who Was standing near the track about six rods from the place of the accident, in the direction from which the .train was coming,- also swears that he heard the bell ring, and that he usually took notice of every train to see' whether the bell was ringing. Ey'an, another yardmaster, who was standing at the crossing, Porter, a br'akemap, who was standing on the platform of one of the cars, Jenkins, the' engineer in charge of the engine, and T.vomley, an engineer, Who Was standing at the crossing, ail swear that the bell was ringing, and that they heard it.- Most of these Witnesses, as well as several others, testify that the usual signal for the crossing was also given by blowing the whistle, and as to that there is no material contradiction. This evidence creates a clear and unmistakable preponderance in favor of the defendant. The jury could not properly find that no bell was rung or whistle sounded, and their verdict, so far as it is based upon the second count of the declaration, can not be sustained.

As to the negligence charged in the first and fifth counts, the only misconduct complained of, so far as we can see, is that of running the train at % high rate of speed. In the absence of a municipal ordinance regulating the rate of speed, no rate which is consistent with the safety of the train and those on it, can be declared to be negligence per se. Eapidity of travel and the vast saving of time resulting therefrom to the com. inunity are among the capital benefits which are conferred upon the public by railroads, and railroad companies are at liberty, when not restrained by positive law, to adopt the highest rate of speed consistent with the safety of the persons and property which they undertake to transport.

We are unable to see, in the light of the foregoing principles, that any rate of speed was established by the evidence which justified the jury in convicting the defendant of negligence. While the plaintiff and perhaps Watson testify that the train was running at a high rate of speed, neither they nor any of the plaintiff's witnesses attempt to be specific as to the rate except Thomas and John McCann. The former, though disclaiming any experience which would enable him to tell anything about it, being pressed by counsel finally ventured an opinion that the train was running at from twenty-five to thirty miles an hour. John McCann, a lad seventeen years of age, and who from the circumstances disclosed by the evidence must have been so occupied at the time as to be able to give the approaching train but little attention, fixed the rate at thirty-five miles an hour. On the other hand eight witnesses, all of them men of experience in railroad matters, testified for the defendant, and all fixed the rate at from eight to twelve miles an hour. It is true these witnesses were all, in one form or another, in the employment of the defendant, but none of them, with the exception perhaps of the engineer and fireman, can be said to have any interest in the suit or any responsibility, either pecuniary or moral, for the injury to the plaintiff. We have yet to learn that the -mere relation of employe to one of the parties to a suit, be it a railroad company or an individual, is of itself, apart from any other consideration, any impeachment of a witness. It is true the preponderance of the evidence does not always depend upon the number of witnesses, but where many witnesses who are in a position to know the facts as to which they testify, concur in their testimony, and are only disputed by a few who have had no better opportunities to know the facts, a jury should not act from mere will or caprice, but should have some tangible and substantial reason for so doing, before rejecting the testimony of the many and accepting instead that of the few witnesses. USTo such reason is apparent in this record. The clear preponderance of the evidence seems to us to show that the defendant’s train, at the time the plaintiff was injured, was not running at to exceed twelve miles an hour, and so far as we can see, the evidence furnished the jury no ground for holding that such rate of speed was negligent.

We are also of the opinion that the evidence shows a want of ordinary care on the part of the plaintiff at time of the injury. At the Fifty-first street crossing, there are a large number of parallel tracks belonging to the defendant and to the Lake Shore and Michigan Southern Railway Company, crossing the street at right angles. On either side of said tracks are gates or bars which are kept in a perpendicular position while no trains are passing or approaching, but which are turned down to a horizontal position by the flagman so as to form a barrier across the street when a train is about to pass. Just before the accident, the plaintiff, in company with witness Watson, a man who seems to have been somewhat infirm, was walking toward the crossing on Fifty-first street. They were walking leisurely, and on reaching a point near the first track, they stopped and stood conversing with each other for a few minutes. As they were about to proceed, they saw a flagman who was standing at the crossing, make some motion with his hand or flag, and call to them, as they testify, “ Come on.” They admit that they understood from the words and gestures of the flagman that there was danger, and that there was a train approaching. The evidence seems to show that before stepping onto the track where the accident happened, and while the train was a considerable distance away, both the plaintiff and Watson saw and knew that the train was approaching. Notwithstanding this, they pressed forward in haste to get across in advance of the train. The plaintiff succeeded in getting Watson, who could walk but slowly, safely across, and stepped across the track herself, but not far enough to escape a projecting part of the engine, which struck her and inflicted the injury complained of.

The evidence furnishes very considerable ground for believing that the plaintiff and Watson were mistaken in supposing that the flagman beckoned or called to them to come across, but that his gestures and words were both intended to indicate danger and to deter them from coming; but even if their version of his conduct is correct, we can not see how it justified the plaintiff in making a rash and needless attempt to cross the track after she knew and saw the approaching train. If it be admitted that she saw the train or knew of its approach in sufficient time to arrest her steps and wait for it to pass by, and such we think is the fair conclusion to be derived from the evidence, there is no view of her conduct which we can take, which exculpates her from the charge of gross negligence.

A number of other errors are assigned which we do not deem it necessary to notice ; but as the verdict of the jury seems to be contrary to the clear preponderance of the evidence, ■ the judgment will be reversed for that reason, and the cause remanded for a new trial.

Judgment reversed.


author: Wilson, P. J.

text:
    George Frost et al. v. Corwin C. Thompson et al.
    Waiver.—Proof of a waiver of the time limited in a parol contract is not necessarily confined to an express agreement between the parties; it may be shown by facts and circumstances sufficiently indicating an intention to waive. The court is of opinion that under the evidence in this case, the two weeks limitation was ignored by principal and broker.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed May 29, 1885.
    Mr. O. F. Wisner and Mr. E. H. Gaby, for appellants.
    Messrs. Frank J. Smith & Helmer, for appellees.
   Wilson, P. J.

This suit was brought by appellants against appellees to recover for commissions on the sale of lands. There was a jury trial resulting in a verdict for the defendant, upon which judgment was rendered, and the plaintiffs appealed to this court. After a very careful examination of the record, we are forced to the conclusion that the verdict was not warranted by the evidence. Appellants were engaged somewhat extensively in buying and selling on commission, pine lands in the State of Michigan, their place of business being at Detroit. Appellees, Thompson and Hall, resided- in Chicago and Michigan respectively, with head-quarters at Chicago. They were the owners in fee, and by purchase contracts, of large tracts of pine lands in Michigan, which they desired to sell, and on October 12, 1882, they placed in the hands of appellants for sale some twenty odd thousand acres of these lands. By the terms of the contract, which was reduced to writing, the sale was to be made in the next succeeding two weeks, and if the lands were sold for §200,000, appellants were to have five per cent, commission for making the sale. Immediately after the contract was executed, appellants caused a map of the lands to be made, and entered actively upon the business of finding a purchaser by correspondence and personal negotiations with their customer's in Hew York City, Buffalo, Cleveland and in other parts of the country, and finally, on the 3d day of November, a few days after the expiration of the two weeks specified in the contract, they concluded a sale of the land to Lee & Co., of Buffalo, for §200,000, upon the conditions and terms of payment prescribed in their written authorization from appellees, Lee & Co. giving their check for §25,000 to apply on the contract. Lee & Co. were men of large mean's, and it is not disputed that they were ab'e to make the deferred payments and fulfill the contract in all respects. Upon receiving the check from Lee & Co., appellants telegraphed appellees in Chicago that the sale was concluded and directed them to draw for the §25,000.

Under this state of facts, appellants having found a purchaser who was able, ready and willing to take the land upon the terms prescribed, it would not be doubted that they had earned the stipulated commissions if they had made the sa'e within the designated two weeks; but it is insisted by appellees, and this is the principal ground of defense relied upon by them, that the failure to sell within the two weeks precludes a recovery. It may be conceded that such failure would, in the absence of any extension, or waiver of the time limited in the contract, defeat a recovery, but we are of opinion under the facts disclosed by the evidence, that appellees ought to be held to have waived the two weeks limitation, and to have extended the time. We shall not go over the evidence in detail, as the case is to be sent back for a new trial. It is sufficient to say the proof shows that appellants, with the full knowledge, consent and approbation of appellees, continued their efforts for the sale of the property, after the expiration of the two weeks just as before, down to the time of the consummation of the sale to Lee & Oo. Hothing was ever said about any new authorization or different arrangement as to commissions or otherwise, after the expiration of the two weeks, nor at any other time. Appellees, after as during the two weeks, were urging appellants to find a purchaser as soon as possible, they being anxious to make a speedy sale of the pro perty. They were kept advised by appellants from time to time of the progress they were making toward finding a purchaser, and there was no apparent change at any time in their relations to each other. Only a day or two before the sale was concluded, appellee Thompson wrote to appellants, “I understand you are to have $10,000, if you sell for $200,000,” and suggests whether five per cent, isn’t rather high where the amount of the sale is so large. The only five per cent, ever spoken of was that mentioned in the written contract. The very day before the sale, having been telegraphed by appellants that they expected Lee to come from Buffalo.the next day to close the trade, appellees sent a messenger from Chicago to Detroit to represent their interest, saying in a letter which he bore that they would be responsible for any funds placed in his hands. These and many other equally significant facts and circumstances disclosed by the evidence, seem to us to point to but one conclusion, namely, that the two weeks limitation was wholly ignored by both parties. Proof of a waiver of the time limited in a parol contract is not necessarily confined to an express agreement between the parties; it may also be shown by their acts and conduct in respect thereto; such waiver may be shown by facts and circumstances sufficiently indicating an intention to waive. Vroman v. Darrow, 40 Ill. 171.

It appears that on the same day of the consummation of the sale to Lee & Co., appellees, without waiting to hear from the messenger sent by them to receive the money at Detroit, sold the property to another party in Chicago, and telegraphed appellants to return the $25,000 to Lee & Co. Of this sale appellants had no knowledge until after they had concluded the sale to Lee & Co. We are of opinion that under the evidence appellants were entitled to recover, and that the case ought to be submitted to another jury. The judgment below is accordingly reversed and the cause remanded for a new trial.

Reversed and remanded.