text:
    I. Lurya Lumber Company, Defendant in Error v. Abraham Bernstein et al., Plaintiffs in Error.
    Gen. No. 16,387.
    1. Mechanic’s liens — who not necessary party in action at Taw by subcontractor. If one member of a partnership who are the contractors is eliminated by the action of the owner and the remaining members of such partnership, a subcontractor is not required to join the retired partner in an action at law to recover.
    2. Mechanic’s liens — when notice of subcontractor sufficient. Held, that the notice set forth in this opinion was a substantial compliance with the statute.
    3. Mechanic’s liens — what notice of subcontractor need not recite. The statute does not require that the notice of the subcontractor shall state that the material was delivered or when payment therefor would become due. Notice to one of two partners is notice to both. The notice may be signed without the seal of the corporation attached and must necessarily be signed by an agent where the subcontractor is a corporation.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlie, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied March 28, 1912.
    Blum & Blum, for plaintiffs in error.
    Harry M. Fisher, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

The Municipal Court rendered judgment for defendant in error against Harry Stone and Mas Hanoch and plaintiffs in error, Bernstein and Wolf, for $503.09, after finding that defendant in error had established its right to a lien upon Lots 22, 23 and 24, Block 1 of Baron’s Subdivision of Brand’s Addition to Chicago. Bernstein and Wolf filed a plea of non-joint liability with the contractors.

The facts are not contested and are, in substance, that on July 11, 1908, Max Hanoch, Harry Stone and Barnett Luntz entered into a written agreement with Bernstein and Wolf, owners of said premises, to alter and repair for said owners a building on said premises on or before Sept. 1, 1908; that said owners were to pay therefor $6,000 on certificates of the superintendent as work progressed, to wit, eighty-five per cent, of the estimated value and the remainder on completion and after expiration of fifteen days, fifteen per cent, to be held by owner as security for completion; that pursuant to the contract said contractors employed defendant in error to furnish lumber and mill work on said buildings, which was accordingly furnished to the amount of $490.82, the last delivery being Oct. 30, 1908; that August 11, 1908, the copartnership between Stone, Hanoch and Luntz was dissolved, and Stone and Hanoch, with the knowledge and consent of Bernstein, proceeded with the work and thereafter payments were made on the building contract to Stone and Hanoch; that on October 15, 1908, a certificate was issued to Stone and Hanoch for $400 which was endorsed to defendant in error by them and- payment refused on ground there was no money due and architect had in ignorance of fact issued the certificate; that on Nov. 5th Hanoch and Stone refused to proceed with the work and Bernstein and Wolf completed it, Dec. 6, 1908, at their own expense; that on. Nov. 21, 1908, notice of defendant in error’s claim as a subcontractor was served on Bernstein; that Bernstein and Wolf were co-partners in the furniture business, and the buildings were constructed with partnership funds, and that M. Joseph is president of defendant in error; that there was $1,200 of extra work done by the contractors for which Bernstein and Wolf agreed to pay and did pay $4,800 to the contractors; and that $490.82 for lumber delivered and interest thereon of $12.31 has not been paid to defendant in error.

Plaintiffs in error insist the judgment should he reversed, (1) because the court had no power to render judgment, as Luntz, one of the contractors, was not made a party to the suit; (2) as no judgment was entered against Luntz, none could be rendered against plaintiffs in error; (3) no proper notice for a lien was served upon either plaintiff; and (4) the court improperly received the notice in evidence.

First and Second. The evidence discloses that as between the owners and contractors, Luntz, after the dissolution of the partnership existing between the contractors, was eliminated as a contractor, and that the owners assented to this elimination. This action between the contractors and the owners created as between them a novation, and gave the defendant in error the right in his suit to treat Hanoch and Stone as the only contractors. While, so far as the evidence discloses, defendant in error had a right to sue all the original contractors jointly with the owners, as he had furnished the material to all of them and had not released Luntz; yet,, the owners, plaintiffs in error, could not require defendant in error to make Luntz a party to the suit, as they had discharged or released Luntz as a contractor, and had accepted Hanoch and Stone as their sole contractors in the completion of the building. There was therefore no existing obligation between Luntz and plaintiffs in error, and no reason appears why he was a necessary party to this suit.

Third and Fourth. The notice was addressed to Abraham Bernstein and Henry Wolf, and is signed by defendant in error, per M. Joseph. It was dated Nov. 21, 1908, and on that date was served on Bernstein. The body of the notice reads as follows:

“Ton are notified that I. Lurya Lumber Company have been employed by Stone, Hanoch and Luntz to furnish lumber under their contract with you on your property (describing it) and that there was due the undersigned October 30, 1908, the sum of $490.82 for which undersigned hold your interest in grounds liable. ’

The notice complies substantially with all the requirements of the statute and it is sufficient. Par. 38, Chap. 82, Hurd’s Stat., 1909; I. Lurya Lumber Co. v. Bernstein et. al., ante, p 77.

The statute does not require the notice to state that the material was delivered or when payment therefor would become due. Beck Coal Co. v. Patterson, 237 Ill. 250. Notice to one of two partners is notice to both, and it was not necessary to personally serve both Bernstein and Wolf. Haywood v. Harmon, 17 Ill. 477; McDonald v. The W. R. Co., 35 Ill. App. 283. The notice may be signed without the seal of the corporation attached and must necessarily be signed by an agent where the subcontractor is a corporation. Cary-Lombard L. Co. v. Fullenwider, 150 Ill. 629.

The notice was properly admitted in evidence, and the court committed no error in rendering a joint judgment under the statute against the owners and contractors. Harty Bros. v. Polakow, 237 Ill. 559.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell Per Curiam.

license: Public Domain

text:
    Lafayette Upthegrove, Appellee, v. Chicago Great Western Railroad Company, Appellant.
    Gen. No. 5474.
    1. Verdicts — ialien not disturbed where two juries have concurred. If two juries have upon the same evidence found the same way the Appellate Court will not reverse solely on the ground that from a reading of the evidence in the record, it seems to the court that the preponderance of the evidence favors the defeated party.
    2. Instructions — when as to right of recovery will not reverse. An instruction which authorizes a verdict for the plaintiff if he has made out his case as alleged in his declaration will not effect a reversal if the declaration is sufficiently full so as to cover all the material elements necessary to he established and the other instructions are not framed in such way that the jury were likely to he misled.
    3. Trial — when interruptions and improper arguments will not reverse. Unnecessary interruptions and impropriety in argument will not reverse if both counsel have been equally culpable.
    Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied April 11, 1912; additional opinion filed.

      Certiorari denied by Supreme Court (making opinion final).

      Sheean & Sheean, for appellant; John Barton Payne, of counsel.
    T. J. Fitzpatrick and F. J. Campbell, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Upthegrove was head brakeman on a freight train, Extra No. 272, going east on the Chicago Great Western Bailroad, and was riding on the engine on September 5, 1907. The conductor and engineer had been ordered to reduce speed to fifteen miles per hour at the west switch at Fox station, but as the engine went around a curve some distance west of that switch it was flagged. The engineer failed to stop the train and further progress around the curve revealed a dump car standing on the main track with a heavy-iron upon it. Upthegrove saw that a collision was inevitable and jumped from the engine. He claims that he thereby received a rotary dislocation of the atlas, and, on December 5, 1908, he began this suit against the Chicago Great Western Railway Company to recover damages therefor and had a verdict and a judgment for $12,500. We reversed that judgment and remanded the cause for a new trial in Upthegrove v. Chicago Great Western Railway Company, 154 Ill. App. 460. Thereafter the name of the defendant was changed to Chicago Great Western Bailroad Company. Upon a second trial Upthegrove had a verdict and a judgment for $8,000 from which defendant below appeals.

Appellee introduced evidence tending to show that the signal flag should have been carried much farther west or the torpedoes should have been put upon the rail further west and that the engineer could not stop the train on the down grade under the circumstances then existing in time to avoid a collision; that appellee did receive a rotary dislocation of the atlas; that he has suffered great pain therefrom; that an effort to reduce the dislocation would probably produce a pressure upon the spinal cord and result in instant death; that he is and will be unable to perform any labor; that he was forty-three years of age and earning from $80 to $100 per month at the time of the injury. This evidence, standing alone was sufficient to justify a verdict for appellee, assessing his damages at $8,000. Appellant introduced evidence tending to show that the train could readily and easily be stopped between the time the conductor saw the flag and the time the engine reached the flag, á long distance west of the dump car, if the engineer had applied emergency air, as appellant claims its rules required; that the collision was solely caused by the negligence of the engineer and of the conductor; that appellee is feigning a dislocation of the atlas which does not exist; and that if he did receive such dislocation, it could have been readily reduced by proper treatment. Upon most of these propositions appellant has an apparent preponderance of the evidence. If we were reviewing the first trial, we should be disposed to hold that the case ought to be submitted to another jury. But two juries and two trial judges have now sustained appellee’s contentions, and we conclude that as appellee’s evidence makes a case supporting the verdict and judgment, we ought not again to reverse a decision favorable to appellee solely on the ground that from a reading of the evidence in the record, it seems to us that the preponderance thereof favors the appellant.

At the request of appellee the court gave to the jury the following instruction:

“1. The court instructs the jury that if you believe from the preponderance of the evidence and under the instructions of the court, in this case, that the plaintiff has made out his case as laid in the amended declaration, or either count thereof, then the jury should find for the plaintiff.”

Appellant contends that the giving of this instruction should reverse the judgment. The various cases wherein this instruction has been held reversible error, or not reversible error, according to the issues involved, are fully cited and discussed in Krieger v. A. E. & C. R. R. Co., 242 Ill. 544, and Cromer v. Borders Coal Co., 246 Ill. 451; in each of which cases a judgment was reversed for the giving of this instruction. It is therefore material to inquire what negligence was charged. The case was tried upon the first six counts of an amended declaration. The first count charged that appellant negligently left upon its track near Fox a dump car containing a large quantity of railroad steel, whereby the collision occurred. This count did not expressly charge that the servants of defendant who left said dump car on the track were not fellow servants with appellee, but as it had previously alleged that appellee was a brakeman on an eastbound train at that time, it is manifest that the facts alleged in the count negative the existence of any relation of fellow servant between appellee and the servants of appellant who left said dump car on the track. The second count charged that appellant negligently failed to have a flagman stationed a sufficient distance from said dump car so that the train could be stopped before colliding with the dump car and that said work in which said dump car was being used was under the charge of a steel gang, whose members were not fellow servants with appellee. The third count made the same charge as to the members of the steel gang and alleged as negligence a failure to place torpedoes upon the rails of the track or otherwise to warn the engineer so as to give him sufficient time and space in which to stop his train before colliding with the dump car. The fourth count charged that the men who were using the dump car were not fellow servants with appellee and that appellant negligently failed to give the engineer any warning that the dump car was on the track. The fifth count charged that the servants of appellant using the dump car were not fellow servants with appellee and that appellant negligently failed to give the engineer and conductor or either of them any notice by telegraph order or otherwise that said dump car was on the track. The sixth count likewise charged that the servants of appellant in charge of the dump car were not fellow servants of appellee and that appellant negligently failed to give notice to its servants in charge of said train, No. 272, that its track was in bad condition and unsafe upon which to run a train of cars. It will therefore be seen that each count of the declaration charged negligence in the steel gang or in the train dispatcher, whose duty it was to give telegraphic orders. When therefore the first instruction authorized a verdict for appellee if he had made out his case as laid in his amended declaration, it required him to prove negligence, either of the steel gang or of its foreman, in failing to send out a flag far enough or to place torpedoes on the rail far enough from the dump car to enable the engineer to stop the train after receiving that warning, or negligence in the train dispatcher who failed to give some telegraphic order which would have notified the engineer of the fact that the dump car was on the track. If the jury found that the collision was solely caused'by the negligence of the engineer or of the conductor or both, then it could not find for appellee, under the first instruction above quoted. Appellant by its second instruction caused the jury to be told that the engineer, conductor, foreman and brakeman were fellow servants and that if this injury occurred to appellee by reason of the negligence of one of these fellow servants, then they should find appellant not guilty, unless they further found that appellant was otherwise guilty of negligence as charged in some count of the declaration and that such negligence contributed to the injury and that said negligence of appellant and of said fellow servant or servants were concurrent canses of the injury and combined were the proximate cause thereof. In view of the allegations of each count and of the second instruction given at the request of the appellant, we conclude the giving of appellee’s first instruction should not be held to be reversible error. Appellant complains of the refusal of certain instructions requested by it. Appellant’s second refused instruction invaded the province of the jury and would have told the jury that the evidence on a certain point was uncontradicted, whereas the evidence on that subject offered by appellee and by appellant was not at all in harmony; but in all other respects the refused instructions were clearly embodied in those that were given at appellant’s request.

Appellant complains that the court erred in various rulings on the admission and rejection of evidence. We have examined the rulings complained of and do not find any reversible error therein. Appellant complains of language used by appellee’s attorney in the argument of the case before the jury and of his frequent interruption of the attorney for appellant in his argument. We think that during this argument counsel for both sides were more nervous than was necessary or fitting, and that sometimes appellee’s attorney interrupted appellant’s attorney when he should not have done so, but appellant’s attorney several times stated the evidence different from what it really was and sometimes undertook to discuss evidence which had been excluded or to state facts which he had not been permitted to prove, and this conduct necessarily led to interruptions; and we conclude that counsel for both sides were about equally responsible for the interruptions which occurred.

The judgment is therefore affirmed.

Affirmed.

Opinion

Per Curiam.

Appellant contends in its petition for a rehearing that the first instruction above set out was erroneous because it would permit a verdict for appellee even if his fellow servants, the engineer and conductor of his train, were guilty of negligence which contributed to his injury. As shown in the foregoing opinion, the jury could not find for appellee under said instruction unless it found that appellee’s injury was caused by the negligence of the steel gang or the train dispatcher, neither of whom could be called fellow servants of appellee under the proofs. Appellant would be liable to appellee for the results of the negligence of the steel gang and of the train dispatcher. If the jury had found that the negligence of appellee’s fellow servants, the conductor and the engineer of the train, also contributed to the injury, that would not have authorized a verdict for appellant. Where a servant is injured through the negligence of the master and of a fellow servant, the master cannot escape liability on the ground that the fellow servant also contributed, to the injury. Kennedy v. Swift & Co., 234 Ill. 606, and cases there cited. Hence, the instruction was not erroneous in the respect now suggested. The petition for a rehearing is denied.


author: Per Curiam.

text:
    Agnes Tennyson, Administratrix, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5517.
    1. Verdicts — when not disturbed in personal injury case. In an action for personal injuries the verdict rendered will not he disturbed if no errors of law have intervened and the evidence tends to establish the averments of the declaration which is sufficient in law to sustain the verdict.
    2. Arpeáis and errors — when admission of erroneous evidence

      will not reverse. The admission of erroneous evidence will not reverse if no prejudice appears to have resulted.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell. Judge, presiding.
    Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed November 23, 1911.
    Rehearing denied April 11, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    John E. Cochran and Garnsey, Wood & Lennon, for appellant; Knapp & Campbell and John C. Mechem, of counsel.
    Barr, McNaughton & Barr, for appellee.
   Opinion

Per Curiam.

At 7:30 or 7:45 p. m. of March 27, 1909, there was a “bosh slip” in blast furnace No. 1 of the Illinois Steel Company’s plant at Joliet, and three or four minutes later there was a very serious explosion in the engine room, about 400 feet distant, connected with said blast furnace, the roof and walls were largely destroyed and much other damage was done, and James Tennyson, the engineer on duty there, was killed. His administratrix brought this suit against the Illinois Steel Company to recover damages to the next of kin resulting from his death, which the declaration attributed to the negligence of the company. There was a plea of not guilty, a jury trial, a verdict for plaintiff for $10,000 and a judgment thereon, from which the defendant below appeals.

The declaration will be better understood by a preliminary statement of the machinery, appliances and method of work involved in this explosion, though these are so technical and intricate that our description must necessarily be incomplete. The record shows that blast furnace No. 1 is shaped much like an ordinary lamp chimney and is over 80 feet high; that it is lined inside with fire brick; that its internal diameter at the top is 15 feet, from which it gradually widens as it goes down until at about 23 feet from the bottom it is 20 feet wide,, and that from there it contracts to a distance of about 10 feet from the bottom, at which point it is 13 feet in width, and so continues from there to the bottom. The widest part is called “the bosh” and the bottom is called “the hearth.” A short distance below the top of the furnace and within it, is a bell shaped stopper which can be raised and lowered a distance of 2 or 3 feet. When raised, the outer rim of the bell fits against a projection or flange around the inside of the furnace wall and closes the top of the furnace. Just below the edge of the bell are some outlets to the side, one of which is called the “down-comer,” which is a pipe about 6 feet in diameter which conveys the gas generated in smelting from the top of the furnace to different parts of the works where it is used for fuel. If the pressure of the gas at the top becomes excessive, valves open automatically just below the bell into other pipes called “bleeders” through which the excess escapes into the open air. About in line with the bleeders were “explosion doors” originally put in to aid in the escape of gas and other material when there is a slip. About 10 or 12 feet from the bottom of the furnace an iron pipe, called a “bustle pipe,” with 3 feet infernal diameter, lined with fire brick, encircles the furnace. From the bustle pipe small pipes run to nine openings through the furnace walls, called “tuyeres,” and through the tuyeres air at a temperature of about 800 degrees is forced into the furnace under a pressure of 10 pounds to the square inch when the furnace is being operated. The other appliances connected with the furnace are the engine for forcing cold air through structures called “stoves,” which heat it to a temperature of 800 or 900 degrees Fahrenheit, or higher, and it is then forced into the furnace.

There are four stoves between the engines and the furnace to heat the air. Three of the stoves are in a row immediately south of the furnace and one is a short distance west of the furnace. The stove farthest from the furnace is about 150 feet south of it. Each stove is about 80 feet high and 20 feet in diameter, and is lined with fire brick, and has two'partitions of firebrick, one extending from the bottom to near the top, and the other from the top near to the bottom. The stoves are heated by gas taken from the top of the furnace by the down-comer, which gas is conveyed by a pipe to the bottom of the stove into which it is admitted with a proper mixture of air to cause it to burn. A stove is heated by the heat from the burning gas traversing the three chambers of the stove, from the bottom up one side, then over the partition and' down the" center chamber, then under the other partition and up the other side, and out into the open air through a stack. It takes three hours to heat a stove and three stoves are being heated at the same time, while the fourth is being used to heat the air for the furnace. The air for the furnace is heated by shutting the inlet for the gas and the outlet at the stack, and opening a valve from the cold air pipe into the top of the stove, and forcing the air into the chamber of the stove at the top on the side the heat traversed last, and then, through the stove which had been heated, in the opposite direction to that in which the heat traversed the stove, and out of the stove through a valve into a pipe 150 feet long, which is lined with fire brick and is about 8 feet inside diameter. This is called the “hot blast main,” and through it the heated air from the stove is forced into the bustle pipe and thence through the tuyeres into the furnace. The air when forced through a stove is heated to 800 or 900 degrees or higher, and in the course of an hour the stove cools so that it does not heat the air as at first, and then another stove which has been heated is connected with the cold air pipe and the hot blast main, and the cold stove is shut off from the hot blast main and the cold air pipe and is connected with the gas main to be again heated.

The engines for pumping the air are situated in a building about 400 feet south of the furnace. The air is sucked into the blowing pipes by the engines and forced past certain valves into a cold blast main about 3 feet in diameter. The cold blast main, raised a few feet above the ground, leads to the first stove, where the air ascends to the top of the stoves and over them. There are valves at the top of the stoves for shutting off the air from or admitting it to each of them. The cold blast main, the stove and the hot blast main, make one continuous main when the air is passing through the stove from the engines to the furnace, and the air is forced into the furnace under a pressure of 10 pounds to the square inch, as this furnace requires 33,000 cubic feet of air per minute.

It is necessary for the successful management of a furnace that the air forced into it through the tuyeres shall be of a uniform temperature. When a stove after being heated, is first connected with the air course, it heats the air more than it will after it has been cooled by the air passing through it. To keep the hot air at a uniform temperature in the hot blast main a smaller main connects the cold air main at the top of the stoves with the hot blast main between the stoves and the furnace. In this connecting main is a valve called “the mixer valve,” by which cold air may be admitted in any amount required from the cold air main without passing through a stove, and so may lower the temperature of the air in the hot blast main when a fresh stove is connected with it. The amount of cold air admitted is gradually diminished while a stove is being used, thus keeping the heat of the air at a uniform temperature of about 800 degrees in the bustle pipe during the entire hour each stove is successively used. There are various valves in the mains near the engines, in the cold air main just after it turns to ascend to the top of the stoves, and in the hot blast main, to keep the air pressure uniform or to cut it off, and means for ascertaining the heat in furnace, bustle pipes and elsewhere, which it is not necessary to describe.

In operating the furnace a certain amount of ore with proper proportions of coke, limestone, scrap and sometimes flue dust, is at intervals of about 15 minutes placed on the bell at the top of the furnace; the bell is then lowered a short distance and the raw material slides off the bell into the furnace, after which the bell is raised and closes the top of the furnace. The furnace is kept filled with material up to within about 15 feet of the top and, when filled, contains about 800 tons of material, which is called the “burden.” The temperature at the top of the furnace is about 500 degrees. As the smelting proceeds the burden descends in the furnace and the heat increases to about 3,000 degrees at the bosh, or “fusion zone,” so that the ore in that place is in a spongy state, and at the bottom of the bosh the iron is liquid and drips to the hearth; the coke is consumed and the limestone mixes with the impurities of the ore, forming slag, which floats on the top of the molten metal and is drawn off whenever it reaches a certain height on the hearth, through ah opening called the “cinder notch” a short distance above the opening where the molten iron is run out, which latter is called the “iron notch.”

The theory of the working of a blast furnace contemplates that the material will gradually and uniformly sink toward the bottom. In practice it does not always settle uniformly but the material sticks or hangs to the wall of the furnace, and this produces a condition called “hanging.” When this condition occurs, there is a space in the furnace between the part of the material that sinks and “the hang” which is filled with gas. This condition necessitates an operation called “slipping the fnrnaee,” which is so operating the appliances that the hang is forced to move down. When the hang is near the top of the furnace the burden above it is comparatively slight and the slip is light and not particularly dangerous, and that is called a “top slip” but where the hang is at the bosh the burden above it is much greater and the operation of slipping is much more dangerous, and such a slip is called a “bosh slip.” A light slip is of frequent occurrence, but a heavy bosh slip is rare and a serious matter. Any slip forces gas out of the furnace to some extent. Wh.en gas mingles with air in certain proportions an explosion will follow. That there is a hang in the furnace is usually discovered by the top charger. In the top of the furnace are four holes called “try holes” each about an inch and a half in diameter, and it is the duty of the charger to run a rod down through these holes after the charge has been put in the furnace, to determine whether the burden is moving properly. For this purpose rods of different lengths are provided and used. The fact that a furnace is hanging may sometimes be discovered by the foreman in charge of the furnace by an examination of the condition of the furnace through peep holes which are in the back of the blowpipes or tuyeres. If the charger discovers that the furnace is hanging, it is his duty to notify the foreman by blowing a whistle. If a hang occurs more than an hour and a quarter after the metal has been run out of the furnace, or, as otherwise expressed, after the furnace has been “cast” then the foreman must ascertain if there is slag or cinder in the furnace that would be splashed into the tuyeres by the fall of the hang, and if he finds that material present he must draw it off through the cinder notch. He must also examine the furnace through the peep holes. It is then the duty of the foreman to signal the men about the furnace and in the engine room, by blowing whistles, that he is about to force a slip. In front of the furnace is a Bristol recording pressure gauge, which indicates what air pressure is on at. the furnace at all times. The signal that a slip is about to be forced is notice to the engineer to slacken the speed of the engine and lower the pressure. The pressure is also lowered by opening a relief valve in the cold air main south of the stoves, which permits the cold air to escape before it gets to the stove. The burden sometimes slips by simply taking off the air pressure, which when on tends to hold up the burden. As soon as the foreman ascertains that the burden is beginning to slip, it is his duty to notify the engineer to restore the air pressure.

The declaration consisted of one original and eleven additional counts, and is of very great length, and is very full of details of the conditions and facts creating the duties set up in the several counts, which, it is alleged, the company negligently violated. It covers over 40 pages of the record, and can be only very briefly summarized here. The original count charged that appellant so negligently constructed, maintained, used, managed and operated said blast furnace, stoves, boilers, engines and other equipment and attachments, used with said blast furnace, that thereby a large volume of gas, generated in said furnace, was permitted to escape through a certain duct, pipe and equipment, connected with said furnace, to the engine room in which plaintiff’s intestate was at work, and said gas to explode, causing large quantities of iron and other material to be thrown against said intestate, and causing his death. The additional, counts will be referred to by their number. The first count described the slip and the connections between the furnace and the engine room, and charged that defendant negligently installed and maintained in a certain air pipe a valve, so inadequate and insufficient in design, construction and repair as to be worthless in preventing gases, generated in said blast furnace, from being forced out of the furnace and into and through said pipe and into said engine room, where plaintiff’s intestate was at work, whereby said furnace slipped and forced large volumes of gas through the air pipes and stoves and into the engine room, where it exploded and killed plaintiff’s intestate. The second count charged that appellant negligently failed to construct and maintain in said air pipe valves or explosion doors of such design and capacity that, in the event of a slip in the furnace and a forcing of the gases back through said pipe towards said engine room, said gases would escape through such valves, explosion doors or other devices, into the open air, and thereby prevent the escape of said gases into said engine room; and thereby, when said furnace slipped, gases were forced through said pipe into said engine room and ignited and exploded, etc. The third count charged that appellant so negligently operated said blast furnace that the material therein was caused to slip a great distance and thereby large quantities of gas were forced from said blast furnace along said air pipe into said engine room and there ignited and exploded. The fourth count charged that appellant so carelessly constructed and operated said blast furnace, stoves, boilers, engines, gas pipes, air pipes, blowers and other attachments that in consequence of such negligence great quantities of gas generated in said furnace were forced along said pipe into said engine room and there ignited and exploded. The fifth count alleged that a slip in the furnace would cause the gases generated therein to be forced out of the furnace and towards said engine room, and that appellant had installed a valve in said pipe to prevent the gases from being forced back into said engine room when a slip occurred; that a valve which would operate automatically, and the maintenance of the same in good repair and condition, was necessary to the operation of said blast furnace in á manner reasonably safe for the employes of appellant in said engine room; and that appellant negligently failed to construct, maintain and keep in repair an automatic valve to prevent the gases so generated from being forced from said air pipe into the engine room; and that by reason of said negligence the slip forced the gases through said air pipe into the engine room where it ignited and exploded and killed plaintiff’s intestate. The sixth count charged the duty of appellant to exercise ordinary care to cause the raw material in the furnace to sink with regularity and uniformity and to prevent said raw material from hanging therein for a long and unreasonable time while the furnace was in operation; and that appellant negligently permitted said, furnace to be operated for the space of,to-wit, six hours during all which time the raw material in said blast furnace was permitted to hang stationary therein, thereby permitting a heavy and dangerous slip of said raw material, to-wit, 400 tons thereof, to take place in said furnace for a distance of to-wit, 30 feet, thereby causing large quantities of gas from said furnace to be forced back through said air pipe into said engine room and to there escape and to fill said engine room and to become ignited and to explode, whereby plaintiff’s intestate was killed. The seventh count charged the duty of appellant in the construction, maintenance, operation and repair of said blast furnace to install, maintain and keep in repair , in said furnace explosion doors, bleeders and other like devices to carry off surplus gases generated in said furnace in the event of a slip therein, and that appellant negligently failed to perform this duty and thereby the slip forced said gases into the engine room where they exploded and killed plaintiff’s intestate. The eighth count charged that the construction, and operation of the blast furnace and equipment in a manner reasonably safe for employes in the engine room required that automatic valves be installed and maintained at all openings in the blast furnace connected with said air pipe, so adjusted and maintained as to close said openings whenever a slip occurred, thereby preventing the gas from being forced into the engine room; and that appellant negligently failed to install and maintain in such blast furnace such automatic valves or other like device, and in consequence of such neglect, when the slip occurred, the gas was forced from the furnace into the engine room. The ninth count charged at great length that there were certain proper proportions of iron ore, coke, limestone, scrap, steel and flux, which would settle down in the blast furnace with regularity and uniformity, while with improper proportions thereof the same would not settle with regularity and uniformity, but would clog, stick or hang in the furnace until a great quantity of the stock in the lower part of the furnace was consumed and created a great void between the bottom of the stock which was hanging and the top of the molten metal at the bottom of the furnace, which void would continue to grow greater while said upper portions of the material were hanging, and when said upper material fell towards the bottom, it would do so with great force and violence and would cause the gases generated in the furnace to be forced out of the furnace through said air pipe and into said engine room and thereby subject the workmen in the engine room to great and unnecessary danger, and that appellant negligently failed to supply said blast furnace with a sufficient quantity of coke and flux in proportion to the other materials used therein, whereby the stock was permitted to hang for a period of, to-wit, six hours, and thereafter to slip with great force down upon the'Volume of gases so generated, and thereby caused ■ large volumes of said gases to be forced back through the air pipe and stoves into said engine room, where said gases ignited and exploded and killed plaintiff’s intestate. The tenth count was similar to the ninth, but alleged that appellant negligently attempted to reduce said iron ore in said furnace by the use of an insufficient quantity of coke and flux, thereby causing the furnace to hang and thereafter to slip and fall a distance of, to-wit, 40 feet, down upon the gas generated in the furnace and thereby forced the gas into the engine room, etc. The eleventh count described at great length the blast furnace and the methods of its operation and that to operate the same in a manner reasonably safe it was necessary to cause the furnace to be slipped at short intervals, and it described at length the manner in which it should have been slipped, and that the manner in which the slip was conducted was exceedingly hazardous and dangerous; and described in detail wherein the manner of this slip was negligent, and its result in forcing said gas into the engine room, and the death of plaintiff’s intestate therefrom. The declaration duly charged that plaintiff’s intestate was in the employ of appellant and was in the exercise of due care, and that appellant had knowledge of the various conditions described and of the danger and of its duty, or should have had knowledge thereof by the use of due care. The names of the next of kin and the loss to them were properly stated.

Appellant introduced evidence tending to show that the furnace and the other appliances were all in good order and condition, and were the best approved methods and appliances for reducing iron ore known to the business, and that the furnace was conducted with due care and the slip properly managed, and that the slip and the explosion were a pure accident, occurring without any negligence on the part of appellant, and that it was a risk which plaintiff’s intestate assumed. If there had been a verdict and a judgment for the defendant, it could not have been disturbed in this court upon this evidence.

But there is other evidence which might reasonably lead the jury to a different conclusion. The furnace was discovered to be hanging at 6:15 p. m. and, after one unsuccessful attempt, a slip was finally produced at about 7:45 p. m. Appellant claims that it was not hanging before 6:15 p. m. and that from that time on it took the usual means to produce a slip. The evidence leaves it by no means certain that the hanging began at 6:15 p. m. Immediately after the slip the top charger measured with one of his rods and found that the burden had fallen 14 feet. The proof shows that when the furnace is moving with uniformity a burden of 800 tons, as this was, will sink 56 feet in 12 hours. If the material in the furnace below the hang moved as rapidly after the hanging began as before, it would take four hours for a void of 14 feet to be produced underneath the hang. But the weight of the burden having been taken off by the hang the jury might well conclude that the material beneath would sink less rapidly than usual. The jury therefore might conclude from the evidence that the burden had been hanging three hours or more before the slip at 7:45 p. m. or that it was hanging before five o’clock. This leads us to inquire what supervision this furnace had between five o’clock and 6:15 when the hanging was discovered. The superintendent left the plant at 5:30 and examined furnace «No. 1 some time before he left. The assistant superintendent was out of town from the middle of the afternoon. The general foreman of blast furnaces 1, 2, 3, and 4, after No. 1 was cast at five o’clock, that is, after the molten metal was drawn out of the iron notch, made an examination of No. 1 around the bottom of the furnace about 5:15. He then examined furnaces 2, 3, and 4, examining No. 4 last, and went to the office and left the plant about 5:45 p. m. The general foreman at night went on duty at 6 p. m. and apparently did not exercise any supervision over No. 1 at first but went to furnaces Nos. 3 and 4 and there heard about 6:45 p. m. that No. 1 was hanging. He then went to No. 1 and told the night foreman of furnaces Nos. 1 and 2 to keep after No. 1 which obviously meant to keep on trying to produce a slip, and the general foreman then went to a telephone to talk with the superintendent and did talk with him about this and another furnace till the slip occurred. The day foreman of furnaces 1 and 2 testified that they cast No. 1 at five o’clock and that right after that he looked around and found no indication that the furnace was hanging and left at ten minutes to six. The night foreman of furnaces 1 and 2 testified that he went on at six and cast No. 2 furnace right after six and was at No. 2 furnace at 6:30 p. m. when the whistle blew to show that No. 1 was hanging. He had evidently done nothing at furnace No. 1 before that, and after that he gave orders below. The hot blast man on the day turn on furnaces 1 and 2 quit at six o’clock, and apparently did nothing concerning furnace No. 1 after it was cast at five o’clock. The night hot blast man on Nos. 1 and 2 went on duty at six p. m., examined the heat in the lower part of the furnaces at No. 1 and then went to No. 2 and was there till he heard the signal that No. 1 was hanging. The hot blast helper at Nos. 1 and 2 on the night turn went on at 6 p. m. and after a little work at No. 1, went to No. 2 and worked there till the signal was given that No. 1 was hanging. These two men on the night turn, the hot blast man and his helper, were each about 19 years of age and had spent but a few months at this furnace or at this kind of work. The boss top filler on No. 1 that night went on duty at 5:50 p. m. At 6 he put down one of his rods through one of the holes in the top of the furnace provided for that purpose, and then put on another charge, and then put down his rod again at 6:15 and then found that the burden had not descended since his previous measurement and therefrom decided that the furnace was hanging. It is claimed from his evidence that he meant that it was not hanging at six o’clock when he first measured, hut it is evident from his testimony that he could not tell whether it was hanging till he made a second measurement and compared it with the first. The evidence shows that the man below could form some judgment whether the burden was hanging by looking through the peep holes at the tuyeres and also by ascertaining the amount of heat below. But the only sure test whether the furnace was hanging was the use of the rods at the top. There was no proof of the use of any rod at the top of No. 1 between five and six p. m. and therefore no positive proof that the furnace had not been hanging since five o’clock at least. Forty-five charges were put into the top of this furnace between 6 a. m. and 6 p. m. that day, or nearly one charge every 15 minutes. The evidence seems to show that these charges weighed about 16 tons each or more. No one testified that charges were pnt in between five and six p. m. but from the total number of charges that half day and the evidence that regularity and uniformity were constantly observed, the jury might reasonably infer that charges were put on every 15 minutes during that time. If the furnace was hanging all that time, the jury might well conclude that it was negligence to add 16 tons every 15 minutes to the hanging burden. This evidence therefore tends to show that from five to six P. m. this furnace did not have proper attention. Again, when the slip was finally produced a charge was resting on top of the bell, and immediately after the slip and before the explosion the top charger lowered the bell and discharged that additional weight of 16 tons upon the contents of the furnace, with a fall of 14 feet or more, thereby greatly increasing the pressure which forced the gas through the mains into the engine room, where its mixture with air produced the explosion. The jury may have concluded that it was the fall of that great weight at that instant which forced the gas into the engine room and produced the explosion which occurred three or four minutes after the slip. Again, explosion doors had been provided near the top of the furnace, and these had been bolted down, on the theory that the bleeders furnished a sufficient outlet in that direction for the gas at the time of the slip, and because men had been overcome by gas when they went to close the explosion doors after a slip. The proof is that when the burden slips it usually breaks up to some extent, and cracks open in the material, through which cracks some of the gas below the burden escapes upward to the top of the furnace. That there were such cracks produced when this burden slipped is evident from the fact that the force opened the bleeder valves and that the stock came out of the bleeders at the top of the furnace, which could not have happened if the burden had slipped in one solid mass. The jury may have concluded that if these explosion doors had not been bolted down but had been left to operate freely, they would have furnished sufficient relief to prevent the gas from being forced to the engine room. One of the valves at one of the stoves had been fastened by the use of an iron bar, so that it would not act automatically, and this may have deprived the furnace of relief which would otherwise have been afforded.

The evidence makes it clear that before causing the slip it was the imperative duty of the appellant to cause the mixer valve to be closed. One servant of appellant testified that he closed it, and another testified that after the explosion he saw it was closed; and others testified that it was closed, without knowing that fact of their own knowledge. There was, however, evidence from which the jury might conclude that these witnesses were mistaken and that the mixer valve was not closed. Nearly every other valve connected with these appliances between the furnace and the engine room and in the engine room was broken by the force of the explosion, except the mixer valve. From all the facts and circumstances in evidence the jury may have concluded that the fact that the mixer valve was not broken was the best evidence that it was not closed, and that, if it had been closed, the gases would have gone out through the stove and would have passed into the open air before reaching the engine room.

There was proof introduced by appellee, by at least two witnesses, that the various valves could have been so arranged when it appeared that there was danger of a heavy slip, that the gas would have passed off into the open air without reaching the engine room. Cross-examination by appellant tended to show that such an arrangement would be impracticable, expensive and dangerous to the machinery and to the men about the furnace and stoves, and re-examination tended to confirm the original statement, Appellant has a plant at Gary, Indiana, and there was proof that at the mills there automatic appliances had been installed to prevent gas being forced into the engine room by a heavy slip, and that these appliances were effective, but that they had been discarded because they were not a commercial success. "Witnesses testified that they would injure or clog up various apertures about the furnace. The jury may have concluded that in a matter so obviously dangerous as this to the lives of servants, appellant should have adopted those appliances of which it had knowledge, even though its officers regarded them as not a commercial success.

From the evidence which we have partially recited we conclude that the jury might reasonably decide that appellant was guilty of negligence charged in the declaration and that such negligence caused the death of Tennyson.

The assistant superintendent was first called and examined for appellee and was afterwards called and examined for appellant, and on cross-examination by appellee was asked: “Does the engine slack down now to the same pressure that it did at the time of this accident, when a slip is made?” Appellant objected that it was incompetent to show what was done after the accident and that the witness had already answered. This was overruled and appellant excepted and the witness answered that they are not slacked down quite as much. He was then asked: “You maintain a higher pressure?” and he answered “We try to.” No objection was interposed to this question. The appellant had contended that to aid in making a slip it was necessary to greatly reduce the speed of the engine in order to reduce the pressure of hot air underneath the burden, and that in this case* it became impossible to restore the speed and pressure right after the slip began sufficiently to counteract and overcome the pressure produced by the heavy slip, which forced the gas through the pipes. The tendency of the testimony of this witness in chief was to support the position of appellant. The cross-examiner was seeking to show, contrary to the contention of appellant, that by the use of certain valves the speed of the engine could be maintained and yet the pressure be taken off the furnace while a slip was being produced. The witness had denied this, and the purpose of this question was to call his attention to the manner in which they operated their engines at the present time, as showing that by operating the relief valve the pressure could be reduced though the speed of the engine was not slacked down so much, and his answer tended to show that that was true. But the same thing more complete, was obtained by the next- answer, to which no objection was made, and appellant was not harmed. Another witness for appellant was asked by appellee on cross-examination: “Were you there when Mr. O’Brien was killed in the engine room?” Appellant objected, the objection was overruled, appellant excepted and the witness answered: “No, sir, I was not at that furnace.” The court refused to permit the inquiry to be carried any further. It was not shown when or how 0 ’Brien was killed, nor was there anything to indicate that it was by an explosion or in the making of a slip or by the negligence of appellant or that he had been a servant of appellant. Perhaps the questions here referred to should not have been asked, but we find in them nothing which injured appellant or which would justify the reversal of a judgment in a case which occupied the attention of the jury for nine days. It is seldom that so little error of law is alleged in so large a record.

The jury awarded $10,000 damages. It is said that this is excessive. Deceased was earning from $49 to $52 every two weeks, or over $1,200 per year. He was in excellent health and was 42 years old at the time of his death. He left a widow and four children, the oldest aged 8 years and the youngest 7 weeks. This suit is brought to recover damages for their pecuniary loss. We cannot say that their loss does not equal the amount of this verdict.

The judgment is affirmed.

Affirmed.


text:
    M. F. Loughran et al., Appellees, v. John A. Gorman, Appellant.
    Gen. No. 5549.
    Appeals and eeeoes&emdash;when, affirmance results by operation of law. If but two of tbe justices participate upon tbe bearing of an appeal and they disagree, an affirmance by operation of law results.

      Foreclosure. Appeal from the Circuit Court of Will county; the Hon. Dobrance Dibell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    J. L. 0 ’Donnell, T. P. Donovan and J. A. Brat, for appellant.
    Barr, McNaughton & Barr, for appellee.
   Per Curiam.

Mr. Presiding Justice Dibell tried this case in the court below and therefore took no part in its consideration here. The other members of the court have given the case a careful examination and are divided in opinion as to whether the decree should be affirmed or reversed. The decree is therefore affirmed by operation of law.

The authorities for the affirmance of a judgment by an equally divided court are collected in Binder v. Langhorst, 139 Ill. App. 493.

Decree affirmed.


author: Mr. Presiding Justice Dibell

text:
    Dillon S. Brown, Administrator, Defendant in Error, v. Theodotia Burley et al. W. Leslie Lowe, Plaintiff in Error.
    Glen. No. 5454.
    1. Appeals and errors — when transcript not stricken. A portion of a record omitted by the appellant but supplied by the appellee will not be stricken at the instance of the appellant.
    2. Appeals and ekrobs — when certificate of evidence stricken. If a certificate of evidence be signed at a time when the court is without power to sign the same it will be stricken.
    3. Appeals and ebeobs — when finding by County Court presumed supported by evidence. Findings of fact contained in a decree of th3 County Court ordering the sale of real estate will be presumed supported by the evidence heard where no certificate of evidence is preserved.
    4. Appeals and errors — when assignments deemed waived. Assignments of error not argued are deemed to have been waived.

      5. Certificates of evidence! — when proper in County Court. If an appeal is properly taken from the County Court to an Appellate Court a certificate of evidence may be properly signed and sealed by the judge of the County Court.
    6. Certificates of evidence — when must be signed. A certificate of evidence must be prepared and signed at the time unless by an order of court it is permitted to be thereafter prepared and signed within a later time fixed by such order.
    7. Administration of estates — when laches no defense to application to sell real estate to pay debts. If all the assets have been exhausted except the homestead not worth over $1,000 which the widow continues to occupy as a homestead, holders of unsatisfied claims may wait till the homestead estate is extinguished before applying for a sale of the property no matter how long the lapse of time.
    8. Interest — when allowance upon balance of widow’s award proper. Where a money judgment has been entered providing for the payment of a balance due upon a widow’s award interest may be awarded from the time of the entry of such judgment.
    Petition to sell real estate to pay debts. Error to the County Court of De Kalb county; the Hon. William L. Pond, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Vincent D. Wyman and Otto W. Jurgens, for plaintiff in error.
    George Brown, for defendant in error; G. D. Bogers, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On March 11, 1907, Dillon S. Brown, administrator de bonis non of the estate of Thomas W. Burley, deceased, filed a petition in the County Court of DeKalb county for the sale of real estate to pay debts, the principal item being a balance due on the widow’s award and interest thereon. The widow and the heirs (all of whom were collateral) were made defendants; an amendment was filed to the petition; W. Leslie Lowe, an heir, answered; and there was a hearing and a decree for the sale of the real estate. Lowe sued out a writ of error from this court to review the proceeding and filed a record containing only the petition, the amendment, his answer and the decree. Defendant in error obtained a certiorari to have other parts of the record certified, and two additional records were filed on the same day, one containing various parts of the record proper omitted by plaintiff in error, and the other containing a certificate preserving the evidence introduced at the hearing, and he filed an additional abstract of said certificate of evidence. Plaintiff in error moved to strike the additional record and the additional abstract from the files, without specifying which record was meant. This motion was taken with the case. We see no reason for striking from the files those portions of the record and files of the court below which plaintiff in error omitted. Plaintiff in error contends that there can be no certificate of evidence in a probate proceeding in the County Court, relying upon Blair v. Sennott, 134 Ill. 78, 84. What was there said applied to such probate proceedings as are appealable to the Circuit Court, where they are tried de novo, and not upon the record of the County Court. But this case was properly brought to the Appellate Court. Fields v. Coker, 161 Ill. 186; Frier v. Lowe, 207 Ill. 410; Roberson v. Tippie, 215 Ill. 119; Wachsmuth v. Penn Mutual Life Insurance Co., 231 Ill. 29. In our opinion, a party aggrieved by a decree for the sale of real estate to pay debts has a right to have the evidence preserved by a certificate of evidence, for this is essential in order to have the case properly reviewed when removed to this court, or to the Supreme Court in case a freehold is involved. The remedy by appeal or writ of error would be very inadequate if the evidence could not be preserved. But the decree here reviewed was entered at the April term A. D. 1908, of the County Court, and no leave was then given to afterwards present a certificate of evidence, whereas this certificate was signed on August 14,1911, during the pendency of the case in this court. A certificate of evidence must he prepared and signed at the time, unless hy an order of court it is permitted to be thereafter prepared and signed within a later time fixed by such order. Harris v. People, 138 Ill. 63; Guyer v. D. R. I. & N. W. Ry. Co., 196 Ill. 370; Finch & Co. v. Zenith Furnace Co., 245 Ill. 586; City of Spring Valley v. County of Bureau, 115 Ill. App. 545; People v. Strauch, 153 Ill. App. 544. Therefore defendant in error had no right to a certificate of evidence at the time this certificate was signed, and the additional record containing such certificate of evidence and the additional abstract must be stricken from the files.

Plaintiff in error assigns four errors upon the record: (1) that the court erred in finding that there was a deficiency of personal estate; (2) that the court erred in finding that the deficiency amounted to $223; (3) that the court erred in finding that the estimated costs due and to accrue and the interest on the unpaid award ^should be included in the amount of the deficiency for which the real estate should be sold; (4) that the court erred in ordering the sale of the whole of said real estate. As to the first and second errors alleged it is sufficient to say that the court found in the decree in detail that the administrator de bonis non had made a just and true account of the condition of the estate to the court; that the personal estate of the deceased was insufficient to pay the debts, and that the amount of the deficiency was $223, besides interest and costs accrued and to accrue from the date of the filing of the petition; and that these findings of fact must be presumed to have been supported by the proofs presented upon the hearing, since plaintiff in error did not cause the evidence to be preserved by a certificate of evidence and has obtained from us an order striking from the record the certificate of evidence obtained by defendant in error. The fourth error assigned is omitted by plaintiff in error from his abstract and is not argned in his brief and must be considered abandoned. But if it were not waived, we do not understand that the fourth assignment means that the court erred in ordering a sale of the real estate, but that the court should not have ordered the sale of all of it, but only of so much thereof as would suffice to pay the deficiency. Here again, plaintiff in error, in the absence of a certificate of evidence, is bound by the finding in the decree that it will be necessary to sell the whole of the real estate to pay said deficiency and that a portion of the real estate cannot be sold without manifest prejudice to the heirs of deceased. Plaintiff in error in his answer, filed below, admitted the allegation of the petition that this was, before Thomas W. Burley died, and at the time of his death, his homestead, and has ever since been occupied by his widow, Theodotia Burley, as her homestead, but he denied the allegation of the petition that the same was and had always been worth less than $1,000. He did not allege that it had ever been worth more than $1,000 but only denied that it had been and was worth less. The homestead estate allowed by law is of the value of $1,000. Thomas W. Burley had died and the original administration had been begun in 1877, and plaintiff in error in his answer alleged that the administrator was barred by laches and delay from selling this real estate to pay debts; but it is well settled that, if all the assets have been exhausted except the homestead, not worth over $1,000 which the widow continues to occupy as a homestead, holders of unsatisfied claims may wait till the homestead estate is extinguished before applying for a sale of the property, no matter how great the lapse of time. People v. Lanham, 189 Ill. 326; Hanna v. Palmer, 194 Ill. 41; Graham v. Brock, 212 Ill. 579; White v. Horn, 224 Ill. 238. Hence, if plaintiff in error by his assignments and argument had not abandoned his defense of laches, still it could not be maintained. The decree did not expressly find the premises worth less than $1,000 but only by implication, bnt plaintiff in error had not alleged that it was worth over $1,000 and had raised no material issue on that subject. The decree found that the widow had filed her consent in writing to the sale of her homestead and dower interests, and plaintiff in error has not raised the question whether, under those circumstances, real estate can be sold to pay debts.

As to the third assignment, it is obvious that the costs attending a sale of real estate to pay debts must be paid out of the proceeds of the sale, and that they cannot be determined beforehand with precise accuracy. The petition charges, and the decree finds, that Thomas W. Burley left no descendants, but left a large number of collateral heirs, including W. Leslie Lowe, and that they were duly notified; and the decree finds also that Theodotia Burley, the widow, had purchased and obtained conveyances of this real estate from all the collateral heirs except W. Leslie Lowe. Except as to costs, the deficiency shown in the just and true account is for an unpaid portion of the widow’s award and the interest thereon. Plaintiff in error urges that interest is not allowable on a widow’s award, and that, if it is allowable thereon after the widow has elected to take it in money, it is not found here that she had so elected. It is clear that interest cannot be allowed from the date when the widow’s award is made. Stunz v. Stunz, 131 Ill. 210; Field v. Field, 215 Ill. 496. The Stunz case intimates that it may lie so allowed after she has elected to take it in money. By finding that the administrator de bonis non had filed a just and true account and that the deficiency was so stated, the court found that Mrs. Burley was entitled to interest on the award, and if, to obtain a correct conclusion to that effect, it was necessary to show a money judgment therefor, we must assume in the absence of a certificate of evidence that such showing was made. But in the additional record filed by defendant in error, which we have allowed to stand, is, among other proceedings and orders in the estate, a money judgment in favor of the widow for a certain balance due her on her widow’s award, to be paid in due course of administration as a claim of the second class. We are of opinion that the widow was entitled to interest on that judgment, and the correctness of the computation of interest thereon in the just and true account is not questioned by plaintiff in error.

We are of opinion that the errors alleged are not well assigned, and the decree is therefore affirmed.

Affirmed.


text:
    Western Cottage Piano & Organ Company, Defendant in Error, v. Thomas W. Burrows et al., Plaintiffs in Error.
    Gen. No. 5458.
    1. Corporations — when defense of ultra vires unavailing. In an action by a corporation to recover money disbursed by it, stockholders who have received the benefit of the disbursement of such money cannot defend against their promise to repay the same upon the ground that such disbursement was ultra vires the corporation; especially is this true where such stockholders occupy positions of trust and confidence.
    2. Instructions — when errors will not reverse. Errors in instructions will not effect a reversal if no substantial defense was interposed.
    3. Pleading — when estoppel available. While estoppel may be pleaded specially yet it may also be proved without pleading it.
    Assumpsit. Error to the Circuit Court of La Salle county; the Hon. Richard M. Skinner, Judge, presiding.
    Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Eddy, Haley & Wetter and Butters & Armstrong, for plaintiffs in error.

      C. B. Chapman and Duncan, Doyle & O’Conor, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On December 16, 1904, plaintiffs in error executed and delivered to defendant in error a promissory note payable to the "order of defendant in error three years after date, for the principal sum of $30,045 with interest at 5% per annum. No part of said note was paid. On December 26, 1907, defendant in error brought this suit against the maters of said note and filed a declaration containing a special count upon the note and the common counts. The principal defenses are that the transaction out of which the note arose was ultra vires, and that the signing of the note by plaintiffs in error was without consideration, and that the only purpose of the note was to properly adjust the books of the company for the time being, with no intention 6n the part of any one that the note should ever be enforced. There was a jury trial and a verdict in favor of defendant in error for $39,146.07. Motions by plaintiffs in error for a new trial and in arrest of judgment were denied. Defendant in error had judgment on the verdict, and the defendants below prosecute this writ of error to review said judgment.

The note here sued upon was given in final liquidation of a debt which was originally evidenced by a note dated December 24, 1902, due on or before five years after date, in the principal sum of $30,000 with interest at 5% per annum, payable to the order of A. H. Merrifield, signed by plaintiff in error, Thomas W. Burrows, and endorsed upon the back by L. B. Merrifield. We conceive it to be a material question who was the primary debtor in that transaction, and there is a direct conflict in the evidence on that subject. The matters here litigated are set forth and discussed to a considerable extent in Western Cottage Piano & Organ Company v. Burrows, 144 Ill. App. 350, and Merrifield v. Burrows, 153 Ill. App. 523. L. B. Merrifield died April 15, 1903. He was the president of defendant in error, and for many years lie and liis immediate family had been the owners of a majority of the stock in defendant in error, and in a prior like corporation whose legal existence had expired by limitation of time. He was seriously ill for a long time before his death. He had a wife, Mary C. Merrifield, a son, Louis W. Merrifield, and a daughter, Lilla M. Wood, the wife of George B. Wood, a clergyman. Thomas W. Burrows was a physician in active practice and was in attendance upon L. B. Merrifield during the long illness which resulted in his death, and had also acted as physician for all the other members of the family. Jarvis B. Burrows was a lawyer; had been receiver of a street railway corporation in which L. B. Merrifield. owned a large interest; and had been attorney for L. B. Merrifield and for L. W. Merrifield and for defendant in error in various matters. L. B. Merrifield during his long illness had great confidence in the Burrows brothers and their relations were very intimate, and L. B. Merrifield came to believe that it would be highly advantageous to himself and to his family to have the Burrows brothers associated with him in the ownership of the capital stock of defendant in error, of which, as before stated, L. B. Merrifield and his wife and his son and daughter and son-in-law owned a decisive majority, the rest of the stock being owned by A. H. Merrifield and 0. 0. Merrifield, brothers of L. B. Merrifield, and by several other persons. It was proposed that a holding company be organized under the laws of New Jersey and that all the stock which could be obtained be placed in the hands of that company and voted by it, and such a company was organized in New Jersey, but the plan was found to be impracticable and was abandoned. It was decided that all the capital stock held by others than the L. B. Merrifield family should be bought in; that the stock of the L. B. Merrifield family should be valued at $100 per share; that the outstanding stock when purchased should he valued at what it cost to huy it; that the stock should be equally divided between L. B. Merrifield and the members of his immediate family on the one hand, and the Burrows brothers on the other (the total number of shares of the capital stock of defendant in error being 1,000); and that the Burrows brothers should pay to L. B. Merrifield a sum sufficient so that the stock which they obtained, so purchased in, should cost them as much as the Merrifield stock was valued at under this arrangement.

A. H. Merrifield owned 140 shares, and he sold them for $33,600'. He was paid $3,600 in cash and received for the balance the note for $30,000 already mentioned, which transaction was consummated on December 24, 1902. It is the claim of plaintiffs in error that L. B. Merrifield conducted the negotiations and bought this stock from A. H. Merrifield and that it was his stock and his debt, but that L. B. Merrifield feared that if A. H. Merrifield knew that L. B. Merrifield was the buyer he would not sell at that price, and therefore Dr. Burrows was represented to A. H. Merrifield by both L. B. Merrifield and Dr. Burrows as the purchaser of this stock, and the papers were made so to read. There is testimony in the record to that effect, but there is a very great preponderance, both of oral and documentary evidence, that this was a purchase from A. H. Merrifield by Dr. Burrows. Dr. Burrows drew three papers that were executed that day.' He signed the note for $30,000 thereby making himself on the face of the papers the principal debtor. No adequate reason is shown why he would consent to give his note for another man’s debt. He testified that L. B. Merrifield wrote his name across the back of the note and then told Dr. Burrows to sign it as maker. There is oral testimony that Dr. Burrows told a witness that when he bought this stock, A. H. Merrifield refused to accept his unsecured note for $30,000 and that therefore he found it necessary to procure the endorsement of L. B. Merrifield upon the note. Dr. Burrows gave his personal check to A. H. Merrifield for $3,600 the cash payment. Dr. Burrows drew and took from A. H. Merrifield on that day a receipt wherein A. II. Merrifield acknowledged that he had received from Thomas W. Burrows $33,600 in full for 140 shares of the stock of defendant in error. He also took from A. H. Merrifield a bill of sale to Dr. Burrows of 140 shares of the stock of defendant in error. A. H. Merrifield assigned the certificate in blank. There is evidence that this was temporarily left with L. B. Merrifield to secure him for his liability as endorser on the note. What afterwards was done with it will appear hereafter. That stock has ever since been owned by one of the Burrows brothers and is a part of the 500 shares which they now possess. Dr. Burrows testified that in 1903, when he was alone with L. B. Merrifield in the home of the latter a little over a month before L. B. Merrifield died, they had a settlement in which L. B. Merrifield agreed to pay this $30,000 note. If that were true, it would be a serious abuse of the confidential relations existing between Dr. Burrows, the trusted physician and friend, and this very sick man, to have a transaction involving perhaps $200,000 closed without the presence of any member of the family of L. B. Merrifield, and it would be very strange that L. B. Merrifield should consent to transact alone so important a matter with any one when he had other members of his family near at hand, and when his son, L. W. Merrifield, lived about a block away. The evidence, however, is clear and convincing that the son, L. W. Merrifield, and the son-in-law George R. Wood were both present at that interview, and that Mrs. Wood was in the house and knew of it, and that no such arrangement or promise was made by L. B. Merrifield; but, on the contrary, that there was then present a certain exhibit 29 in the handwriting of Dr. Burrows, which plainly shows that in the arrangements of that day this $30,000 note was recognized as a liability of Dr. Burrows. Again, at about the end of one year from the date of the $30,000 note, Dr. Burrows caused a servant of defendant in error to make out a check of defendant in error to A. H. Merrifield for $1,500 for one year’s interest on said note, and directed the bookkeeper to charge the same, one-half to Dr. Burrows and one-half to Jarvis B. Burrows, on the books of the company, and that check was delivered to A. H. Merrifield in payment for one year’s interest, and was so charged on the books of defendant in error. It is not reasonable to believe that Dr. Burrows would have paid this interest if this were really the debt of L. B. Merrifield. After L. B. Merrifield died, Dr. Burrows became the administrator of his estate. A. H. Merrifield filed a claim against the estate of L. B. Merrifield based upon the endorsement of L. B. Merrifield on the back of this $30,000 note, and Dr. Burrows caused or permitted it to be allowed. Thereafter A. H. Merrifield died, and his widow, Lucy D. Merrifield, became administrator of his estate. Before L. B. Merrifield died, he had divided most of his property among his wife and children. Mrs. Lucy D. Merrifield feared that she could not collect this note from Dr. Burrows and feared that there was not enough property left in the estate of L. B. Merrifield to pay it, and she accordingly filed a bill in equity against the L. B. Merrifield family charging that the gifts by L. B. Merrifield to his family would prevent the collection of this claim, and were fraudulent as to her. Thereupon Dr. Burrows wrote and inserted in a local newspaper over his signature a long statement, in which he declared that he purchased this stock from A. H. Merrifield, and paid therefor part cash, and for the rest gave his note payable five years after date secured by the endorsement of L. B. Merrifield, in order to obtain which he put up collateral security with L. B. Merrifield, and that he was amply able to pay the note when it became due without any recourse whatever upon his endorser, and that this note was an unjust attempt to collect the debt 'before it was due. The note here sued upon signed by Dr. Burrows and J arvis R. Burrows, was given to procure satisfaction of that claim in the manner hereinafter stated. The fact that Dr. Burrows signed the present note is strong evidence that the original note was his indebtedness. In addition to all this, the oral testimony of John G-amber, deputy probate clerk, Duncan McDougall, the attorney of Lucy D. Merrifield, and the evidence of Lucy D. Merrifield, George R. Wood and Louis W. Merrifield, all shows that on many different occasions Dr. Burrows said that this $30,000 note to A. H. Merrifield was his personal debt, and that he would pay it, many of these statements being made long after the death of L. B. Merrifield. There are other facts and circumstances in evidence tending to prove that this was the personal debt of Dr. Burrows. Dr. Burrows denied some of these statements, and testified that he did not recollect others. When all this evidence is considered, it must be regarded as conclusively established that Dr. Burrows bought this stock from A. H. Merrifield, and that the $30,000 note was his own debt whereby he agreed to pay a part of the consideration for that stock.

There are many facts in evidence that show that J arvis R. Burrows was jointly interested with Dr. Burrows in the buying of the A. H. Merrifield stock and of all the other stock which they procured and which made up the 500 shares which the Burrows brothers now own. The A. H; Merrifield certificate was surrendered and was used as a part of the stock included in a certificate for a large number of shares which was issued to Jarvis R. Burrows and which he still owns. As already stated, one-half of the first year’s interest on the A. H. Merrifield note, paid by direction of Dr. Burrows with a check of defendant in error, was charged to Jarvis R. Burrows in his account with the defendant in error. It does not appear that Jarvis E. Burrows was present when this check was drawn and this charge was made, hut he was an officer of the corporation, he was often at its office and had access to its books, and he testified that he probably saw this charge upon the books. After 500 shares of the stock had been procured by and for the Burrows brothers, they divided it equally between them, so that Dr. Burrows owned 250 shares and Jarvis E. Burrows 250 shares, and all the Merrifield stock for which this $30,000 note was given went into the shares of stock issued to Jarvis B. Burrows, and all this stock is now held as collateral to other indebtedness of Dr. Burrows and Jarvis E. Burrows, not involved in this suit. The fact that Jarvis E. Burrows signed the note here in suit is evidence tending to show that he was interested in that transaction as part owner of the stock paid for thereby.

At the time the note here sued upon was executed and during the negotiations prior thereto, the confidential relations between the Burrows brothers and the members of the Merrifield family still continued. Dr. Burrows was the vice-president and treasurer of the company, Jarvis E. Burrows was its attorney, and also held an office and was a director. The other directors were Louis W. Merrifield, G-eorge E. Wood, and Mary O. Merrifield. The Merrifields. urged Dr. Burrows to pay the claim allowed against L. B. Merrifield ’s estate in favor of A. H. Merrifield. He declared that he was unable to do so then, but would be able to do so when that note by its terms became due, which would have been December 24, 1907. Dr. Burrows and Jarvis E. Burrows proposed that the corporation pay the claim and that the Burrows brothers would give their note therefor to the corporation payable at about the time when the A. H. Merrifield note would mature by its terms. Wood at this time was living at Wheaton. He was sent for and came to Ottawa, and a conference was held at which the Burrows brothers, L. W. Merrifield and George R. Wood were present and in which the proposition was again stated by the Burrows brothers and discussed that the company should raise this money and pay the claim and that the Burrows brothers should give their note, payable at about the maturity of the A. H. Merrifield note by its terms, for the amount required to liquidate the claim. A directors’ meeting was then held and Jarvis R. Burrows presented a resolution which he had prepared, authorizing the officers of the company to borrow $30,000 for corporate purposes. Wood raised the question why the purposes should not be stated correctly in the resolution and was told by Dr. Burrows and Jarvis R. Burrows that it might be that it would not be necessary to use the money for this purpose, and that there were other proper corporate purposes for which they could use it if it became unnecessary to pay this claim, and also that this arrangement would be legal and proper if the stockholders agreed to it and the board of directors authorized it. The assurances given by Dr. Burrows and Jarvis R. Burrows procured the adoption of the resolution without dissent. Some time thereafter four notes of the corporation for $5,000 each were prepared and executed by the corporation by its president, and endorsed by Dr. Burrows and Louis W. Merrifield, and said notes were further secured by a certificate of deposit which Mary C. Merrifield had in the sum of $14,000. These papers were delivered to Rickards & Company, a Chicago firm, and on October 18, 1904, they discounted the said four notes for $19,642 and a draft for that amount was given to Dr. Burrows and Louis W. Merrifield which one of them brought to Ottawa. Louis W. Merrifield then took said draft and deposited it in a bank in his own name, for the reason that his mother’s collateral had been put up as security and his father’s estate was held for the claim, and not enough money had yet been secured to pay it and he therefore thought he ought to keep it under Ms own control till they were ready to pay the claim. He took from the hank for tMs sum an interest bearing certificate, and the interest received thereon was afterwards turned over to defendant in error. Thereafter, on December 16, 1904, the corporation, acting through its officer, Dr. Burrows, borrowed from a local bank $8,000 giving its note therefor; and thereupon the certificate of deposit for $19,642, and the money obtained from the local bank, and something over $2,000 of the funds of defendant in error on deposit in the bank, were placed in the hands of Dr. Burrows, the vice-president and treasurer, and by him paid to Lucy D. Merrifield, administratrix of the estate of A. H.. Merrifield, deceased, in full satisfaction of the claim, the amount so paid being $30,545 and somewhat less than the amount due to the estate of A. H. Merrifield, the deduction being a concession to procure the settlement. Thereupon, on December 16,1904, the note in suit here was prepared and signed by Dr. Burrows and by Jarvis R. Burrows and delivered to the corporation. Thereupon Dr. Burrows directed the bookkeeper to charge the estate of L. B. Merrifield with these payments, and to credit it with a note for $30,545 balancing the account so opened. There was in fact no note of that amount. Why the note then taken from the Burrows brothers was $500 less than the amount so paid out that day in satisfaction of the A. H. Merrifield claim does not seem to be clearly explained. Apparently the Burrows brothers claim that they then paid the corporation this difference of $500 and the Merrifields deny it.

It is contended that this transaction was ultra vires, that the corporation had no lawful authority to pay tMs claim, or to lend its credit or money to pay the same, and that therefore the note which it then received from the Burrows brothers is void, and cannot be enforced by the corporation. It mil be observed that tMs is not a case where an effort is being made to force the corporation to perform a contract it has made, and the corporation is insisting that it has incurred no liability, because the contract was one which it had no power to perform. If, after the board of directors had agreed that this money should be raised, and should be turned over in satisfaction of the claim, defendant in error had then refused to do so, and this were a suit to compel it to pay the A. H. Merrifield claim, as it had agreed to do, no doubt it would be a complete defense to the corporation that it had no power to make such a contract. But here the corporation has performed all that it agreed to do. It has paid the debt of Thomas W. Burrows to A. H. Merrifield, it has paid for the 140 shares of stock which were sold to Thomas W. Burrows by A. H. Merrifield, and which were transferred into a certificate of stock to Jarvis B. Burrows, and which he now owns. To permit the doctrine of ultra vires to now excuse Dr. Burrows and Jarvis B. Burrows from paying this money back as they agreed to do, is to allow the principle of ultra vires to be used, not in favor of justice, but to defeat justice. "We are of the opinion that after the Burrows brothers have had the benefit of this transaction, and have become the owners of the stock for which this money was paid, they should be estopped from denying their liability to pay back the money of which they have had the benefit. This is especially true in view of the fact that this action by the corporation was procured upon the representations of Dr. Burrows, the trusted physician and familiar friend of the Merrifield members of the board of directors, and of the Merrifield stockholders, and the trusted friend of their deceased father, and of Jarvis B. Burrows, who had been attorney for their father, and was the attorney of L. W. Merrifield, and was the attorney of the corporation; and that these men lulled into security the Merrifield branch of the board of directors by assuring them of the propriety and legality of this action. The corporation is not declaring this action ultra vires. The majority of the board of directors are seeking to enforce payment. If the rights of creditors of the corporation are concerned at all, it is to have this money paid back into the treasury of the corporation. No stockholders are claiming that this was ultra vires except the two stockholdérs who received the benefit; one, the man’ who, as treasurer, paid out over $30,000 of the money of the corporation in satisfaction of his private .debt; the other, the stockholder whose stock was paid for by the money so taken from the treasury. They are asserting the illegality of their own acts to escape paying back the money which they then obtained. Dr. Burrows certainly owes the corporation this money. As the stock which Jarvis R. Burrows owns was obtained and paid for with this money, no bne can object to his also admitting a liability on his part to pay therefor. If Dr. Burrows could have paid this money back on the day this note was given, it was his duty to do so. If Jarvis R. Burrows could assist, no one else could object to his doing so when he was the actual beneficiary of the payment. It was the duty of this corporation to get this money back, no matter how wrongful the paying out of it may have been. The corporation, on the theory of plaintiffs in error, could have immediately sued Dr. Burrows for the money and could have recovered, íhe Burrows brothers declared that they could not pay the money then, but that they could pay it at the time when the A. H. Merrifield note would have matured by its terms, which was three years later. Why should Dr. Burrows not be permitted to agree to pay it back at that time, and to agree to give his brother as security? The corporate form ought not to be permitted to be used to carry out a fraud, or work injustice. The real fact is that Mary C. Merrifield, Louis W. Merrifield, Lilla M. Wood and George R. Wood own one-half of this corporation, and Dr. Burrows and Jarvis E. Burrows own the other half, and the latter have persuaded the former to let them use the funds of the corporation to pay for a part of the stock owned by the Burrows brothers. They agreed to pay for it in three years; they put that agreement in writing and each of them signed it. It is just, equitable and right that they should pay it. Nothing stands in the way of their paying it except a technical rule of law. The plaintiffs in error seek to invoke the alleged illegality of that which they themselves urged and procured the others to consent to, as their only defense against paying this money back. "We are of opinion that the form ought to yield to the justice of the action.

Plaintiffs in error contend that the court erred in admitting the testimony which shows who bought the property for which the A. H. Merrifield note was given, and whose primary debt that note was; first, because this proof contradicts the judgment of the Probate Court, allowing said note as a claim against the estate of L. B. Merrifield, deceased; and second, because this proof is immaterial. The judgment of the Probate Court determined that L. B. Merrifield wrote his name on the back of the note, and thereby became liable to A. H. Merrifield therefor; but it did not decide whether L. B. Merrifield was liable thereon as principal or as surety for Dr. Burrows. That judgment had no tendency even to prove that L. B. Merrifield was the principal debtor or that the note was given to pay for capital stock bought by him. We are of opinion that in determining whether or not the makers of the note sued on are estopped to set up the defense of ultra vires, it is important to know whether, in inducing the other members of the board of directors to pay the A. H. Merrifield claim they were inducing those other directors to whom they occupied these confidential relations to pay for property purchased by Dr. Burrows, and thereby acquired for Jarvis E. Burrows, or whether they were thereby inducing the corporation to pay the debt of the ancestor of the owners of the other half of the capital stock. In determining the motives actuating Dr. Burrows and Jarvis R. Burrows in persuading the corporate officers to consent to this use of the corporate money, it is important to know whether they were serving their own interests, or were merely acting from a spirit of friendship to the owners of the other half of the capital stock.

Complaint is made of the giving of instructions for defendant in error and of the refusal of instructions requested by plaintiffs in error. While the instructions given for defendant in error may not be in every particular absolutely correct, yet in the main they accord with the views herein expressed, and we think it sufficient to say of the refused instructions that part of them were incorrect and the rest were sufficiently embodied in the instructions which were given at the request of plaintiffs in error. If there are any errors in the rulings upon the instructions, yet we are of opinion that plaintiffs in error are estopped to set up the defense of ultra vires, and that with that defense eliminated no substantial defense to this note appears, and that the judgment ought to stand, and that a verdict against the defendant in error could not be sustained upon this record.

Omitting the declaration and a large number of demurrers and similiters contained in the record, the number of pleas, replications, rejoinders and surrejoinders, amount in number to seventy, which we regard as a great abuse of special pleading. It would require a volume to set out all these special pleadings1 and discuss them at length and we do not deem it our duty to burden the reports therewith. While estoppel may be pleaded specially, yet it may also be proved without pleading it. German Fire Ins. Co. v. Grunert, 112 Ill. 68; Evans v. Howell, 211 Ill. 85, 93. Therefore in answering every pleading of any kind filed by plaintiffs in error wherein they set up a claim that this transaction was ultra vires and because thereof no recovery can be bad, defendant in error bad tbe right to prove tbe reply to such pleading that plaintiffs in error were estopped, and having proven that estoppel, in our judgment defendant in error disposed of tbe only substantial defense interposed.

We find no reversible error in tbe record, and tbe judgment is therefore affirmed.

Affirmed.