text:
    Ella Walker, Appellee, v. Co-operative Coal & Mining Company, Appellant.
    1. Mines and miners—when wilful violation established. Held, under the evidence, that there was a wilful failure to inspect the place at which the injury occurred and that there was no error in the refusal of the court to direct a verdict.
    2. Mines and miners—what evidence incompetent. Held, that it was not error to refuse an offer to prove by an experienced miner a condition creating rumbling noises on the day before could be changed, and be in the condition described by the mine examiner on the next morning.
    3. Instructions—when erroneous will not reverse. Where it can be seen that an erroneous instruction did not mislead the jury a reversal will not be awarded.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    W. S. Louden and M. U. Hayden, for appellant.
    Thomas R. Mould and Thomas E. Ford, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This record brings before ns for review a judgment recovered against appellant for damages alleged to have been sustained by the death of the husband of appellee, which occurred in the coal mine of appellant where the deceased was employed as a miner.

The cause was submitted to a jury upon the second and third counts of the declaration. The second count charged that the deceased was employed in the mine in a cross-cut in shooting down and loading coal into boxes and that said working place was then and had been prior thereto in a dangerous condition by reason of the roof being loose and liable to fall; that it was the duty of appellant to have a mine examiner to inspect the mine before men were permitted to enter and inspect all places where men are permitted to pass or to work and to observe recent falls and other unsafe conditions and as evidence of his examination of all working places inscribe on the walls with chalk the month and day of the month of his visit.

It was further averred that appellant wilfully failed to make such inspection and inscription of such dangerous and unsafe condition in such working place by reason whereof the loose rock, slate and clod in said roof fell upon the deceased causing his death.

The third count charged a dangerous condition in the working place of deceased and a wilful failure to mark it as notice to keep out, and to report it to the mine manager; and wilfully permitting the deceased to .enter the mine to work without being under the direction of the mine manager to make such dangerous place safe, whereby he was killed by a fall from the roof while working in such dangerous place.

The evidence showed that the deceased was engaged as a miner in appellant’s mine and with his son had been mining coal in room No. 10 in what was called the fourth south entry. Boom No. 9 joined No. 10 on one side, and room No. 11 on the other. At the time of the accident the deceased had been engaged by the direction of appellant in driving a cross-cut from room 10 to room 9, but had not driven it through. He had not worked in the cross-cut for a couple of days but had been mining in room 10. The accident happened during the forenoon of March 19, 1910, and when the deceased and his son went into room 10 on that day they found the top coal in the cut-off leading from room 10 which had been driven by the deceased, had fallen during the night before, and the deceased and his son went in to load the fallen coal and while loading the first car a piece of rock weighing some five tons fell from the roof upon the deceased, causing his death. In support of the error assigned that the court refused to direct a verdict at the close of the evidence it is argued that the fall did not take place in the working place of deceased. A number of witnesses testify he worked in room 10 but as we view the evidence the cross-cut was driven off room 10 by the deceased and was part of it and it was proper for deceased to load any loose coal that might he in the place either by being mined or by falling there. It is further insisted in support of the alleged error that there was no evidence tending to show a dangerous condition there at the time the mine examiner examined the mine early on the morning of the 19th of March, and prior to the fall of rock. The circumstance showing or at least tending to show it was dangerous at that time, was the physical fact of the fall of top coal which tended to show a disturbance of the roof causing it to fall. In addition to this, a witness Foppe testified that he was a shot firer and the night before the accident when shots were fired he ran through the cross-cut and when the shot went off he heard it jar and “before the shot went off it roared in there;” that the rock composing the roof was cracking trying to come down and that it must have been in the cross-cut or the next room to it; that the popping and cracking of the roof sounded like it was in rooms 9, 10 and 11.

This witness stated on cross-examination that the rumbling noise was in the cross-cut. Another witness, Herman Smith, stated he was in the cross-cut on the same morning before the accident about half past eight; that he examined the roof and it was loose, had drawn loose from the main body of rock and was about ready to fall. A witness Smith also stated he was in the cross-cut that morning before the fall and sounded the rock and found it “drummy;” that the gas had cut the rock through the' cross-cut and the top coal had come down during the night:

This evidence tended to show the place was dangerous at the time the mine examiner visited it on the morning of the 19th.

It is insisted also there was no evidence tending to prove the mine examiner was guilty of a wilful violation of the statute in failing to mark the place as dangerous and as notice to keep out and the most the evidence shows was mere negligence on the part of the examiner.

If the evidence tends to show the place was in fact dangerous which we hold it did, appellant cannot excuse itself if its examiner wilfully failed to inspect the place and observe whether there were any unsafe conditions where men were expected to pass or to work, as alleged in the second count of the declaration.

This duty to inspect is imposed by section 18 of the Mines and Miners Act and if any dangerous conditions are discovered on inspection, it is the duty of the examiner for the protection of the miner to place a conspicuous mark thereat as notice to all men to keep out and at once report his finding to the mine manager. If he does not inspect he would not discover unsafe conditions and would have no mark or report to make. The evidence shows the place was not conspicuously marked as notice to the men to keep out, and the only mark by the examiner was the date mark “3-19,” indicating an examination.

The examiner testified that on the same morning before deceased entered the mine he went into room 10 and saw there a mass of top coal lying in the crosscut. This was immediately beneath the mass of rock that fell upon the deceased. He states he saw no signs of anything wrong; that he heard no rumbling noises and where the coal had fallen it had left what he supposed was solid rock, and he marked it safe by placing his mark in front of the top coal on the rock in the roof. He did not go over the fallen coal to examine the roof from which it had fallen. He says “he wasn’t supposed to go over top coal” and admits that he was not nearer than from six to ten feet to the rock which fell on deceased; that if there was an open slit between the rock and the coal (as testified by another witness) it must have been too far back to see it; that he did not test the roof and if he had he wouldn’t have found it because he did not go that far; and that he made no examination of that rock because there was some coal lying there he couldn’t get over well.

Under all the circumstances disclosed by the evidence of the pile of fallen coal in that cut-off, and the dangerous conditions that had been manifest to the workmen about there, it is quite clear there was a wilful failure to inspect the place and there was no error in the court refusing to direct a verdict.

Appellant offered to prove by an experienced miner a condition creating rumbling noises on the day before could be changed, and be in the condition described by the mine examiner on the next morning; that there were no indication of danger. If the examiner had inspected the rock over the fallen coal and found it in safe condition, the evidence would have been admissible, but not having done so there was no evidence of a safe condition at that time upon which the question was based, and it was not error to exclude it.

Error is assigned .upon instructions 5 and 6 given on behalf of appellee.

The first paragraph of No. 5 was based upon the duty to inspect and mark the dangerous place and is admittedly unobjectionable. The second paragraph states the further duty to allow no one to remain or enter the mine to work except under the direction of the mine manager until all conditions should he made safe. The paragraph was faulty and incorrect but as we are of opinion the verdict is clearly under the evidence in support of the second count, the paragraph could not have operated to appellant’s prejudice. Where it can be seen that an erroneous instruction did not mislead the jury to appellant’s prejudice, the error will not reverse.

The sixth instruction advised the jury that in this action the deceased could not he held responsible for contributory negligence or knowledge of danger but had a right to rely on appellant performing its statutory duty and any negligence of his could not be urged as a defense. The instruction was not improper.

We have carefully gone over the record in this case and find the verdict fully supported by the evidence, and finding no error warranting a reversal of the judgment, it will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Shirley

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Delmar Dorris et al., Appellants.
    Scibe facias—when upon recognisance held sufficient. Held, that the scire facias in this case stated a cause of action and sufficiently averred the essential elements to a recovery.

      Scire facias. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    W. H. Williams, for appellants.
    G. A. Hickman, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellants interposed a demurrer to a writ of scire facias issued out of the Circuit Court of Franklin county upon an alleged forfeited recognizance commanding appellants to show cause why such forfeiture should not be made absolute. The demurrer being overruled and appellants electing to stand by the demurrer, the court entered their default, heard the evidence, found appellants failed to show cause why the judgment of forfeiture should not be made absolute, and ordered and adjudged that appellee have and recover of appellants the sum of five hundred dollars according to the form, force and effect of the recognizance, from which order and judgment appellants appealed.

The only question presented on the record is whether the scire facias states a cause of action and we may consider the questions so presented in their order.

First. It is urged that as the recognizance was for the appearance of the defendant at the May term of the court, 1910, and as the averment is, the recognizance was forfeited at a term following, the writ is insufficient in not averring what was done by the court with the recognizance at the May term. It is admitted it would be presumed in the absence of a demurrer that the cause in which the recognizance was taken was unfinished business and had been continued by operation of law, but it is said where a demurrer was filed the presumption does not obtain.

It is averred in the writ that at the November term the defendants did not appear but made default and that the appellants were defaulted, and the recognizance declared forfeited. This was an averment from which it will be presumed there had been nothing done with the cause at the May term before but that it went over as unfinished business and was continued to the November term. The People were not bound to take a forfeiture at the first term and if not so taken it could be taken at a subsequent term as was done here. Norfolk v. The People, 43 Ill. 9; Stokes v. The People, 63 id. 489. We think the averments of the writ are sufficient in this regard.

Second. It is insisted there was no averment that the recognizance was certified as required by law, or that it became a matter of record in the Circuit Court, and the writ was therefore obnoxious to a demurrer.

The scire facias standing in place of both summons and declaration must contain all necessary material averments. Farris v. The People, 58 Ill. 26. It should show the recognizance has legally become a matter of record. Shadley v. The People, 17 id. 252. And that it has been approved and certified. Rev. Stat. 1910, chap. 38, sec. 295. A scire facias cannot issue upon a recognizance until it becomes a matter of record and it is not a matter of record until it is certified and returned into the court. Bacon et al. v. The People, 14 Ill. 312.

“A scire facias stands in the place of a declaration and for the purpose of pleading fills the same office. * * * It was sufficient to state the recognizance according to its operation and legal effect or to set it out in its very words leaving it to the court to determine its legal effect. (1 Chit. Pl. 335.) The pleader chose the latter course and hence what appears from the recognizance need not be again averred.” Lawrence v. The People, 17 Ill. 172.

In this case the pleader did not aver the recognizance according to its legal effect but chose to set it out with its signatures and certificate in haec verba and after the signature of the bail as so set out, appears the following: “Taken entered into acknowledged and approved before me this 22d day of April, 1910. T. A. Sinks, J. P.” “No form of certificate is given by the statute and it is not material what language is used so that the officer took and accepted the recognizance for the purposes contemplated by law.” Lawrence v. The People, supra.

It sufficiently appears that the taking and approval appear from the recognizance set out in the scire facias and this is equivalent to such averment. Lawrence v. The People, supra.

It was further averred that said recognizance was filed in the clerk’s office of the Circuit Court of Franklin county, Illinois, on the 26th day of October, 1910, but there was no express averment that it became a record.

The statute provides that all recognizances taken in criminal cases shall be delivered to the clerk of the court before which the accused is bound to appear on or before the day mentioned in such recognizance for his appearance, and we are of opinion that when certified and delivered to the clerk a recognizance becomes a matter of record upon which a scire facias may issue and the further averment that it became a record was unnecessary. Raysor v. The People, 27 Ill. 190.

The scire facias stated a cause of action and there was no error in overruling the demurrer and rendering the judgment for the People.

The judgment will be affirmed.

Affirmed.


text:
    Harry Cunningham, Appellee, v. Illinois Central Railroad Company et al., Appellants.
    1. Negligence—when person upon right of way trespasser. The right of way of a railroad company is the exclusive property of the company upon which no person not having business with the company has the right to be, and if there for his own convenience he is a trespasser, and the mere acquiescence in such user gives no right to use it nor does it create any obligations for his especial protection.
    2. Negligence—when railroad company not liable. No liability arises from a mere naked license or permission to pass over the private property of a railroad company, except for wilful injuries.
    3. Negligence—when railroad company liable for failure to exercise. Where a railroad company gives an implied invitation to the public to use its private property it is liable for an injury resulting from its failure to exerbise ordinary care.
    4. Contributory negligence—care required of minor. The measure of care to be exercised of a child old enough to be chargeable with negligence is that measure of care which would be exercised by a child of his age, intelligence and experience under like circumstances.
    5. Instructions—when upon care required of child erroneous. An instruction upon this subject is erroneous and constitutes reversible error if the jury might conclude therefrom that the care exercised by any child of the age, intelligence, capacity and experience of the child injured, would be sufficient although he had used no care to observe or gain knowledge of the approaching train.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Burroughs & Ryder and C. E. Pope, for appellants; Charles A. Schmettau, of counsel.
    Geers & Geers and Webb & Webb, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This is an action by appellee for the recovery of damages caused by being run over by the front trucks of a locomotive which resulted in the loss of the right foot. There was a verdict for the sum of $10,548 upon which the court entered a judgment.

The cause was submitted to the jury upon the first and second counts of the declaration.

In the first count it is charged that the appellant, Illinois Central Railroad Company, was possessed of a railroad track extending through the village of Glen Carbon which crossed a highway or passageway open to the public extending from a certain street in said village to and beyond Coal Washer No. 2, which was used largely by the public upon the invitation and knowledge of said company and upon which crossing the appellants had reason to expect persons at any time, and it was the duty of appellants in approaching 'id crossing with engines and trains to use reasonable care to avoid persons who might be going over or upon the crossing, and in approaching the same to give warning by ringing a bell or sounding a whistle.

It was further charged that appellant, Toledo, St. Louis & Western Railroad Company, was possessed of an engine and train under the care and management of its servants and one Jordan, a servant of the Illinois Central Railroad Company, acting as pilot, who were driving the same along said railroad of the Illinois Central Company toward the crossing and while appellee in the exercise of due care was about to cross said railroad at said passageway, the said train was so negligently managed that it ran upon appellee, whereby he was thrown down and his leg and foot so crushed it was necessary to amputate the foot.

The second count is substantially like the first except it is charged the crossing was constructed and maintained by the Illinois Central Company in convenient condition for the passage of persons and vehicles; that it was held out to the public as a public crossing by said company and that it permitted and invited the use of it by the public.

The first question arising upon this record relates to the refusal of the court at the close of the evidence to direct a verdict in favor of appellants upon the ground, as urged, that assuming appellee was injured on the alleged crossing it was at a place where appellants owed him no duty under the declaration charging negligence; that appellee being a trespasser on the grounds of appellant, the Illinois Central Company, or at most a mere licensee, there could be no recovery for mere negligence.

The right of way of a railroad is the exclusive property of the company upon which no person not having business with the company has the right to be, and if there for his own convenience he is a trespasser, and the mere acquiescence in such use gives no right to use it nor does it create any obligation for his special protection. Wab. R. R. Co. v. Jones, 163 Ill. 167; I. C. R. R. Co. v. O’Connor, 189 id. 559; Same v. Eicher, 202 id. 556. The same rule applies to a licensee.

There was no evidence that the alleged crossing was on a street or public highway, and no liability for mere negligence can be based on any obligation of appellants arising out of any duty respecting a highway crossing. No liability arises from a mere naked license or permission to pass over the private property of appellant, Illinois Central Railroad Company, except for wilful injuries; but there is a distinction between such license or permission to pass over, and cases where the owner or occupant holds out any enticement, allurement or inducement to persons to pass over. L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 607. “A mere passive acquiescence by an owner or occupant in a certain use of his land by others involves no liability, but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition suitable for such use and for a breach of this obligation he is liable in damages to a person injured thereby.” Ibid.

There was evidence that the track of the Illinois Central Railroad Company ran east and west through the village of Glen Carbon, the principal part of the village being located on the north side of the tracks. A small number of houses occupied by families were located south of the tracks and near a coal washer. The houses had been so occupied several years prior to the erection of the washer, and the Illinois Central Railroad Company had built a crossing over its tracks with planks which was used by the people living in the houses on the south side. When the washer was built and several months before the injury to appellee, the said company removed the crossing about three hundred feet west near the washer, where it was located at the time of this injury. This crossing was built by placing planks between the rails of the tracks and constructing approaches from a street in Glen Carbon which ran parallel and near to the tracks. The evidence tends to show the crossing was generally used by the public for foot passengers and vehicles passing to and fro from the main part of the village to the washer and dwellings near there on the south side of the tracks. Under this evidence the court could not hold that in constructing the crossing and in its use by the public there was not evidence tending to próve an implied invitation to the public to enter upon and pass over it.

We are of opinion there was no error in refusing to direct a verdict on the ground appellee if on the crossing was a mere trespasser or licensee.

It is also contended the court erred in denying appellant’s motion for a. new trial on the ground the verdict was against the weight of the evidence. Whether the appellee was on the crossing and using it for highway purposes at the time he was injured, whether he was in the exercise of care, whether appellant, the T., St. L. & W. R. R. Co., whose train struck him, was guilty of negligence in not giving warning of its approach, were questions upon which the evidence was conflicting. The accident happened some four years prior to the trial of the cause and the memory of the eye witnesses to the accident was likely to be more or less affected by lapse of time. Appellee who was then eight years of age and his brother, two years younger, were on their way from a ball game to their home located on the south side of the railroad tracks near the washer. When they reached the crossing a freight train was proceeding east on the main track and they both testify they were waiting for this train to pass over the crossing so they could proceed. They both testify that appellee was on the passing track about the center of the crossing while the brother was off the crossing. There was a curve at this point and while appellee was there as these witnesses testify, a passenger train of the appellant, Toledo, St. Louis and Western Railroad, came around the curve towards the west without sounding a hell or whistle and appellee was struck by its locomotive. The mother of appellee states she saw him from her home south of the tracks shortly before the accident and he was on the crossing, but that her view was then obscured by the passing freight train and she did not know where he was when struck. Several other witnesses testify they saw the train moving over the passing track and there was no bell or whistle sounded. The engineer of the passenger train testified appellee was eight or ten feet east of the crossing between the two tracks when he first saw him slapping his hands against the passing freight train and that he attempted to run across the track in front of his train when struck and that the bell was ringing continuously after entering the passing track. This witness was corroborated by a witness Roman and the fireman as to the ringing of the bell and Roman testified he rang the bell himself and that there were no boards between the rails at the point where appellee was struck. The conductor of the freight train saw the accident and testified that appellee was twenty or thirty feet east of the crossing and that when he saw the danger appellee was in he noticed the bell on the passenger train was ringing.

In addition to the testimony referred to as to whether appellee was on the crossing, some physical features in the way of blood spots appearing in the evidence are very material.

The testimony is that when appellee’s foot was run over he hobbled away thirty or forty feet to a pile of ties where he was picked up and placed on 'the platform of one of the cars.

A witness Perry testified he was section foreman for the Illinois Central Railroad and was at the place of the accident very shortly after it happened; that he found a blood mark on the track and one on the rail twenty-four feet east of the east end of the plank in the crossing and marked the place on the rail with red kale; that he saw no blood on the crossing but looked for none. Another witness, Berry, agent for the Illinois Central, testified to the same fresh blood stains at the same distance. from the crossing and that the stains with bone and cloth mashed thin were there on top of the rail. He was at the place fifteen minutes after the accident. The witnesses Miller and Hawkins corroborate Perry and Berry as to the place where there was fresh blood on top of the rail.

On behalf of appellee, Joseph Flannery, his stepfather testified he was there soon after the accident and saw blood on the crossing along the south rail about half way between the wagon tracks and southeast to the scale house about thirty feet; that he saw indications there of some one scrambling to get out of the way. This witness stated that in a former trial of this case he testified about seeing blood but he is contradicted in this by two witnesses who heard brm testify and the notes of the stenographer.

William Jacobs testified that he found blood at the same place testified to by Flannery and in his former evidence he said nothing about seeing blood on the crossing. We have carefully read his testimony and it is marked with statements inconsistent with the manifest weight of the evidence. A dispassionate consideration of all the evidence we think would lead any unprejudiced mind to the conclusion that by the greater weight of the evidence appellee was not on the crossing when injured.

Appellee’s second instruction was as follows:

‘‘As to the first and second counts of plaintiff’s declaration, the court instructs you that the plaintiff, before and while approaching the point where injured, and before and at the time of his injury, was only required to exercise for his safety, the same degree of care and diligence as children of his age, intelligence, capacity, experience, discretion, and understanding and knowledge of the conditions and surroundings then and there existing, would exercise or were able to exercise under like conditions and surroundings* If you believe, from the greater weight of the evidence, guided by the instructions of the court, that at and before the time the plaintiff approached the point where injured, and at and before the time of his injury, he exercised for his own safety, the same degree of care and diligence that children of his age, intelligence, capacity, experience, discretion, and understanding and knowledge of the conditions and surroundings then and there existing, would exercise or are capable of exercising under like conditions and surroundings, then the plaintiff cannot be charged with the want of reasonable care for his own safety.”

The measure of care required to be exercised by a child old enough to be chargeable with negligence, is that measure of care which would be exercised by a child of his age, intelligence, capacity and experience under like circumstances.

In addition to these elements this instruction tells the jury that if appellee also exercised the degree of care such child would have exercised with like knowledge of the conditions existing, he could not be charged with a want of ordinary care.

It is claimed this instruction was misleading as it eliminated the exercise of care on the part of appellee to discover the approaching train.

The hypothetical child by which appellee’s care was to be measured was a child with the same knowledge of conditions appellee had. Appellee was on a railroad track where the operation of trains was known to him and there was no evidence that he exercised any care to see the approaching train. He said he had no knowledge of its approach. It was his duty to use reasonable care to acquire knowledge of the approach of trains and this is not required by the instruction.

The jury would understand the instruction to mean that the care exercised by any child of his age, intelligence, capacity and experience would be sufficient, although he had used no care to observe or gain knowledge of the approaching train.

The instruction was misleading and in view of the evidence we think prejudicial.

Upon a consideration of the entire record which we have very carefully gone over we are of the opinion the verdict was against the weight of the evidence upon the material question whether appellee was on the alleged crossing when struck by the train. We are also of the opinion the damages in this case were excessive.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Marion County Oil & Gas Company, Appellee, v. John Dykstra et al., Appellants.
    1. Injunctions—when do not lie to restrain right to prospect mine. If the lessee in a mining lease is given the right to terminate the same at any time equity will not enjoin the execution by the lessor of a new lease etc., notwithstanding such lessee endeavors to waive such right of termination.
    2. Landlord and tenant—when waiver ineffectual. A waiver by the lessee of a right to terminate his lease, is ineffectual as against the lessor unless concurred in by him.
    Bill for injunction. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed November 11, 1911.
    Jonas & Haley and Stein, Mayer & Stein, for appellants.
    Nobleman & Smith, William F. Bundy and L. M. Kagy, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee by its bill prayed an injunction to restrain appellants from again leasing lands described therein for oil and gas, and from giving other persons the right to prospect thereon, and from interfering in any way with the possession of appellee or with its wells and pumps, or with the production of oil, and drilling and operating other wells upon the premises. A temporary writ of injunction was issued in conformity with the prayer of the bill. Appellants answered the bill and entered a motion in term time to dissolve the injunction. The motion was heard on the testimony of witnesses in open court and a decree entered overruling the motion to dissolve, making the injunction perpetual and for costs.

It appeared from the evidence heard by the chancellor that on September 2, 1908, appellants executed a lease to one M. A. Myers of a parcel of land, containing eighty-one and 37/100 acres, in which all the oil and gas under the premises were granted and conveyed to the lessee with the exclusive right to him and his assigns to drill and operate wells for oil, gas and water, and to erect all structures, machinery and appliances that he should deem necessary and expedient to the production of oil, gas and water, and the transportation of the same over the premises. It was further provided appellants should have one-eighth part of all oil produced and saved as compensation for the products of each well in which oil was found, and that appellee should have and hold the premises for said purposes for the term of one year and as long thereafter as gas or oil should be found or produced thereon. It was further provided that a well should be completed within six months from the date of the lease or the lessee should pay appellants at the rate of one dollar per acre every six months thereafter while the completion of the well was delayed.

There was a further provision that, upon the payment of one dollar, the lessee should have the exclusive option to release and terminate the grant or any undrilled portion thereof, at any time.

Under the clause of the lease last above quoted giving the lessee the right to terminate the lease at any time, appellee had no remedy by injunction to restrain appellants from the commission of the threatened acts complained of in the bill. Here was a power of revocation given appellee and a court of equity never interferes where such power exists. Watford Oil and Gas Co. v. Shipman, 233 Ill. 9.

In the case of Ulrey v. Keith, 237 Ill. 284, it was held that a suit' to enjoin the violation of a contract was governed by the same rule as a suit to enforce specific performance, and that where there was a lack of mutuality in remedy, courts of equity will aid neither of the parties in the enforcement of the contract but will leave them to their remedy at law.

That case was on a lease like this and with the same provision for a surrender by the lessee. It was sought to restrain the lessor from interfering with, or preventing the lessee from further entering upon and developing the lands for oil and gas, and after an extended discussion and the citation of numerous authorities it was held that while the lease was valid notwithstanding the surrender clause and that while the lessor could not compel a surrender, yet as a court of equity would not do a vain and useless thing, it would not grant an injunction where the party seeking it might, under the cancellation clause of the lease, nullify the decree by exercising his option not to proceed further.

The provision for a cancellation of the lease in this case comes within the reasoning and conclusions of the court in Ulrey v. Keith, supra, and with such provision in the lease injunction will not lie. Appellee endeavored to avoid this result by filing on the hearing in the Circuit Court what was claimed to be a waiver of its right or option under this provision. The written waiver was filed by order of the board of directors of the appellee and recites that it expressly waives all rights acquired or to be acquired by virtue of the said provision for the termination of the lease above referred to. We are of opinion the provision of the lease could not be changed or eliminated so as to be binding, except by the mutual agreement of the parties to the lease. Appellee was attempting to surrender a valuable right, the .right to surrender the lease with no consideration to support it, and such supposed waiver without a consideration would not be binding upon it or affect its right to the option to surrender contained in the lease.

Moreover, if it should be held such waiver was binding on appellee and that it could not thereafter surrender the lease at its option, this would amount to a material alteration of the instrument by it which it cannot do, and it is immaterial whether it is or is not prejudicial to appellant. The attempted waiver by appellee of its right to surrender under the lease was ineffectual as between the parties and did not alter its rights and obligations in any respect. The provision for a surrender was still contained in the lease and the remedy by injunction could not be invoked.

Aside from this question the evidence does not show grounds for relief by injunction. The evidence heard tends to show a compliance on the part of appellee with the terms of the lease, but there was no evidence of any acts by appellants of which a court of equity would take cognizance. The evidence was that appellant, John Dykstra, said he would stop appellee from pumping the wells on the land; that he wanted appellee to stay off the land; that he had arrangements by which he could get one thousand dollars for another lease, and that he was going to make another lease.

There is no evidence of a threatened multiplicity of suits or of the insolvency of appellant, John Dykstra, or that any threatened acts of appellants would result in irreparable injury. There was no evidence from which it could be inferred that any threatened acts if committed would not be susceptible of compensation in damages. There was nothing in the evidence to warrant the interference of a court of equity by injunction.

It will not be necessary to determine the other questions raised by the assignment of errors.

The motion of appellee to tax the costs of the supplementary abstracts to appellants will be denied.

The decree of the Circuit Court will be reversed and the cause remanded with directions to enter a decree dissolving the injunction and dismissing the bill.

Reversed and remanded with directions.


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    The People of the State of Illinois, Defendant in Error, v. William Arms, Plaintiff in Error.
    1. Information—effect of error in printing. A motion to quash an information upon the ground that the filing of it had an impossible date, will not be granted where the impossible date is claimed to arise from the inverted letter “n” in the word “hundred”.
    2. Information—when form of conclusion will not affect. It is not required either by statute or by the constitution of the state that an information charging the selling of intoxicating liquor in anti-saloon territory shall conclude either “contrary to the statute” or “contrary to the form of the statute”.
    3. Dram-shops—when record of election competent in action for selling intoxicating liquor in anti-saloon territory. Held, that the record in question was competent inasmuch as it showed that the election in question was held in the town in question notwithstanding the certification showed that such election was held in a township.
    4. Instructions—when as to right to disregard testimony erroneous. A jury has no right to disregard the entire testimony of a witness because he has been successfully impeached as to any material part of his testimony. It is only where a witness has wilfully and knowingly sworn falsely to a material fact that his entire testimony may be disregarded except where corroborated.

      Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Mooneyham & Seeber, for plaintiff in error.
    G. A. Hickman, for defendant in error.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

The state’s attorney filed an information of ten counts charging plaintiff in error in the first nine counts with selling intoxicating liquor in anti-saloon territory and in the tenth count with keeping a nuisance.

Plaintiff in error was convicted upon all the counts of the information but the judgment was arrested as to the eighth count. On the remaining counts there was judgment and sentence.

A motion was made to quash the information on the ground the filing of it had an impossible .date. The impossible date is claimed to arise from the inverted letter “n” in the word “hundred.” It was an apparent error in printing and the objection had no merit.

It is further urged each count concludes contrary to the statute instead of contrary to the form of the statute. We are of opinion neither conclusion is necessary. It is not required by statute, and the constitution only requires prosecutions to be carried on “in the name and by authority of the People of the State of Hlinois” and conclude “against the peace and dignity of the same.”

Especial objection is made to the tenth count but we see no objection to it.

The People relied upon the testimony of a witness Carl Eainey to prove the offenses charged in the several counts. The witness testified to purchasing twelve or fifteen drinks of whiskey from plaintiff in error in his place of business at the place averred in the information and of seeing another person purchase liquor there once.

Objection was made by plaintiff in error to the admission of the record of the result of the election upon the question whether the town of Cave should become anti-saloon territory, for the reason as claimed, the record showed what purported to be an election in a township instead of a town, and there was no such political subdivision as a township. It is true the proposition to become anti-saloon territory can only be submitted to the political subdivisions of towns, precincts, cities and villages, and technically speaking a township is a geographical territory six miles square, and not a political subdivision and not a town, although the terms are sometimes used interchangeably.

The record in this case, however, shows an election in the town of Cave, while the town clerk in writing up the record recites it is a correct statement of the annual township meeting. The record shows the meeting was called to order by the town clerk. Moderator chosen. Supervisors report read, a levy made for the expenses of the town, and signed by the moderator and town clerk. The record then recites there was an annual township election and an election for town officials from supervisor to school trustee and the vote upon the question whether the town should become anti-sa.loon territory; all certified to by the town clerk. It is apparent from the record this was an annual town meeting in the town of Cave and the record will not be held invalid for the two mistaken recitals that it was a township meeting and a township election. The proof on this question was sufficient.

Complaint is made of the fifth instruction given on behalf of the People. It reads as follows:

“You are instructed that while the- law gives the defendant the right to testify in Ms own behalf still you are not bound to blindly receive Ms testimony as true and you should not do so if you believe from all the facts and circumstances in proof in the case that he is mistaken or has testified falsely and in passing upon the credibility of the defendant’s testimony you should take into consideration his interest in the result of this suit and if you believe from the evidence in the case that the defendant has been successfully impeached in any material part of his testimony, you have a right to disregard his whole testimony except in so far as the same has been corroborated by other credible evidence and circumstances in proof.”

The instruction was erroneous. The jury have no right to disregard the entire testimony of a witness because he has been successfully impeached as to any material part of his testimony. It is only where the witness has wilfully and knowingly sworn falsely to a material fact that his entire testimony may be disregarded except where corroborated. Pollard v. The People, 69 Ill. 148. As the evidence stood, the giving of this instruction was highly prejudicial to appellant and for this reason the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Virginie Vincent, Appellant, v. Albert H. Laurent, Appellee.
    1. Forcible entry and detainer—proviso in section 18 construed. The proviso in section 18 of the forcible entry and detainer act requiring in case of appeal that the appeal shall be prayed and bond filed within five days from the rendition of the judgment, applies to judgments rendered on the original trial, whether in a court of record or before a justice of the peace, and has no application to the filing of the bond for an appeal to this court where the suit originated before a justice.
    2. Landlord and tenant—how lease construed. A lease should be construed as a whole and such construction placed upon it if possible as will render all its clauses harmonious and consistent; the chief object is to arrive at the intention of the parties.
    3. Landlobd and tenant—particular lease construed. Held, under the terms of the lease in question in this case that the parties contemplated a new lease at the expiration of the term of five years, and not an extension.

      4. Landlobd and tenant—how option -¡or new lease must he exercised. Where the lessee has an option to renew a lease he should notify the lessor before the term expires whether he elects to renew, as the lessor should know when the term expires whether he has or has not a tenant and the mere act of holding over is not sufficient to show an affirmative election to renew the lease for an additional term.
    Forcible detainer. Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Gilbert & Gilbert, for appellant.
    Angus Leek and Michael J. O’Shea, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was a suit in forcible detainer begun by appellant against appellee to recover the possession of a building occupied by appellee. The suit was begun before a justice of the peace where there was a judgment in favor of appellee. From that judgment appellant appealed to the Circuit Court where on a trial de novo there was a judgment in favor of appellee from which appellant prayed an appeal to this court.

Appellee has filed a motion in this court to dismiss the appeal for the reason the appeal bond was not filed within five days from the rendition of the judgment in the Circuit Court, and the motion has been taken with the case. It appears from the transcript of the record that the judgment in the Circuit Court was rendered on November 12, 1910, and the appeal bond was filed twenty-seven days' afterwards on December 9,1910, the court having given appellant thirty days from the date of the judgment in which to file her appeal bond.

Upon a consideration of sections 18, 19 and 20 of the act entitled “Forcible Entry and Detainer” we conclude that the proviso in section 18, requiring, in case of appeal, that the appeal shall be prayed and bond filed within five days from the rendition of the judgment, applies to judgments rendered on the original trial whether in a court of record or before a justice of the peace, and has no application to the filing of the bond for an appeal to this court where the suit originated before a justice, and we concur in the reasoning and conclusions reached in Davis v. Hamilton, 53 Ill. App. 94, and Ehlert v. Security and Safety Deposit Company, 72 Ill. App. 59. This cause originated before a justice of the peace where a judgment was rendered against appellant. She there prayed an appeal to the Circuit Court and filed her bond within five days in compliance with the proviso in section 18, supra, which brings the case within the rule laid down in the cases above cited. The motion to dismiss the appeal will be denied.

On the first day of June, 1905, appellant by a written lease of that date demised to appellee for a period of five years, or until June 1, 1910, the premises in controversy reserving as rent for the same seventy dollars payable monthly in advance. There was a covenant on the part of appellee “that at the expiration of the term of the lease he would yield up to the party of the first part without further notice.” The lease had the further usual covenants against assigning it without the written assent of the lessor; a right of re-entry in case of default in any of its terms, and concluded with the following provision: “It is further covenanted and agreed between the parties aforesaid that the party of the first part agrees that the party of the second part shall have the refusal to release said premises for five years more at the same rate at the expiration of this lease.”

On the 2nd day of June, 1910, appellant made a demand for the immediate possession of the premises on the ground as stated in the demand that the term had expired and that appellee had failed during the continuance of the lease to exercise his right of refusal to release the premises. Upon appellee’s refusal to deliver the possession, this suit was instituted.

Appellant testified that up to the time the lease expired on or before June 1, 1910, appellee gave her no notice in any way that he wanted a renewal of the lease; that she had not asked him if he desired a new lease and had prepared no new lease and asked him to sign it; and that he had paid no rent after the 1st of May, 1910, when he paid for that month in advance.

The agent for appellant testified that in March, 1910, appellee had some painting done on the front of the building and asked the witness if he would allow something on the bill and witness answered he would, and allowed him ten dollars on behalf of appellant. This was substantially all the evidence. The court found the appellee not guilty of wrongfully withholding the possession of the premises and rendered a judgment against appellant for costs.

Error is assigned upon this action of the court and also upon its ruling on propositions of law asked by appellant.

By the propositions the court was requested to hold that the provision of the lease above quoted did not make the lease a present demise or leasing of the premises in question or give the lessee the privilege of an extension of the lease for a further period of five years after the expiration of the original term if the lessee so elected, but was a covenant for a renewal—an agreement to release at the expiration of the term at the same rate, at the option or election of the lessee; that to entitle the lessee to a renewal for a further term of five years he must exercise his option or election during the continuance of the original term and it would be too late to do so after such term had expired; that he could not entitle himself to such renewal by merely remaining in possession without further agreement or consent of the lessor and that in the absence of such notice of a renewal by the tenant before or at the expiration of the original term of the lease was bound to surrender the premises at the expiration of said, term without notice to quit, or demand for possession. These propositions were all refused by the court.

The construction to. be placed upon the provision of the lease quoted giving appellee “the refusal to release said premises for five years more at the expiration of this lease,” will determine whether there was error in the refusal to hold such proposition as law.

The question has been exhaustively argued, appellant construing the provision as a covenant for renewal of the lease, and that the principles of law embodied in said propositions were applicable, while appellee contends the execution of a new lease was not necessary to give appellee the benefit of another term, nor was he required to give notice of his election during the term of the original lease; that by merely holding over after June 1, 1910, he sufficiently elected to exercise his option to hold over for the additional term of five years, and by the terms of the lease the active obligation rested upon appellant affirmatively to ascertain from appellee whether he desired to exercise his option to continue for the additional five years before she could terminate the tenancy.

The lease should be construed as a whole and such construction placed upon it if possible as will render all its clauses harmonious and consistent; the chief object is to arrive at the intention of the parties. 18 Am. & Eng. Ency. 617. By the language used, it seems quite clear the parties contemplated a new lease at the expiration of the term of five years and not an extension, or to state it another way, the parties contemplated a lease for five years and not for a term of ten years at the option of the lessee. Appellee covenanted to deliver np the premises at the expiration of the term without further notice and the further provision was, that appellee should “have the refusal to release said premises for five years more at the same rate at the expiration of this lease.”

Construing these provisions together it seems clear that the intention was to let the premises for five years and to give appellee the right to elect whether he would take another lease for a like term at the same rent. This he had the right to do. If he elected to have another term and placed himself in position to entitle him to it, appellant could not disturb his possession. Erchorn v. Peterson, 16 Ill. App. 601. Both parties were not bound by the provisions to release. Appellee had the right to elect to take an additional term of five years hut was not hound to do so. He was only bound under the lease to take the premises and pay rent for five years. In such case it was not a present demise for a longer term than five years both parties not being hound, but a covenant to renew the lease at the end of the term for five years longer at the option of appellee. Hunter v. Silvers, 15 Ill. 174; Sutherland v. Goodnow et al., 108 id. 528.

No new lease was executed. Appellee gave no notice during the term that he would exercise his right to have a renewal of the lease, but remained in possession until June 2nd, the second day after the lease terminated, before appellant made demand for possession, and it is contended this was sufficient to constitute him a tenant for another term of five years under the lease.

In our opinion there was no waiver by appellant arising from appellee’s merely remaining in possession until June 2nd. Appellant had received no rent and had done nothing amounting to the waiver of any right which she had. Nor do we believe the mere circumstance of appellant’s agent paying ten dollars towards the painting done by appellee above referred to amounted to any waiver or estoppel.

Construing the provisions of the lease as providing for a renewal the question arises whether appellee was bound to give notice to appellant of his election to exercise his right to have a renewal during the continuance of his term and was therefore holding without right, or whether by merely holding until June 2nd he sufficiently elected to exercise his option so as to entitle him to a renewal of the lease as contended by him.

Upon an examination of the cases cited by counsel we conclude the better doctrine to be where the lessee has an option to renew a lease, that he should notify the lessor before the term expires whether he elects to renew, as the lessor should know when the term expires whether he has or has not a tenant. Am. & Eng. Ency. Vol. 18, 692. In cases giving the lessee the privilege to extend the term as distinguished from a renewal, no notice of the lessee’s election to extend is required in the absence of a stipulation therefor, merely remaining in possession being sufficient notice. (Ibid. 693.)

Where the option is to renew a lease we are of opinion the mere act of holding over is not sufficient to show an affirmative election to renew the lease for an additional term. Andrews, Admr., v. Marshall Creamery Co., 60 L. R. A. 399, and cases cited. “The covenant of renewal itself implies the creation of a new term and some exercise of the right of election to assume the obligations involved should appear. The tenant may if he sees fit by any appropriate act indicating his intention to do so and before the privilege has expired by the expiration of the term, bind himself to a new lease, the terms and conditions of which are expressed in the first lease.” Ibid. We approve the principles announced in the above citations and they are amply supported by authority although there are decisions to the contrary. There was no effort on the part of appellee to exercise his option and give notice before the expiration of the term as was the case in Cusack v. The Gunning System, 109 Ill. App. 588, and appellant having committed no act amounting to a waiver of her right to possession, we are of opinion her right was clear and undisputed, and the court erred in not holding the propositions of law asked by her and in not finding the appellee guilty of wrongfully withholding the premises from appellant.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    American Radiator Company, Appellee, v. Charles A. Blakie et al., Appellants.
    1. Mechanic’s liens—when notice by subcontractor sufficient. The purpose of the notice required to be given by a subcontractor is to inform the owner of the amount claimed by the subcontractor so that the amount may be retained by the owner from the sum due the contractor. Held, in this case, that it was not necessary to specify the particular number of radiators upon which the claim was predicated.
    2. Mechanic’s liens—what objections to notice of subcontractor not available. The authority of the person giving a subcontractor’s notice cannot be first questioned on review.
    3. Mechanic’s liens—when subcontractor entitled to lien. Notwithstanding material may have been shipped by the contractor for cash and the terms afterwards changed, if at the time notice is given by the subcontractor an indebtedness exists to him from the contractor such subcontractor is entitled to a lien against the property for the material to the extent that the owner was indebted to the contractor and also to the extent that the owner has paid the contractor in violation of statute.
    Appeal from the Circuit Court of Wabash county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      E. B. Green and Theodore G. Risley, for appellants.
    Howard P. French, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

The decree in this case declared a lien in favor of appellee for the sum of $146.63.

Appellants about July 1, 1910, entered into a contract with the firm of Struby and Harris to place in their dwelling on real estate owned by them a heating plant to cost $414. After this contract was made Struby and Harris ordered and received from appellee one boiler and nine radiators and placed them in the dwelling as part of the plant. The contract price was $74.30 for the boiler and $72.33 for the radiators, a total of $146.63. The boiler was shipped from Buffalo, N. Y., on September 8th and the radiators from Litchfield, Illinois, September 7, 1910. The boiler was shipped cash, the radiators on thirty days ’ time. After the boiler was shipped the terms were changed by appellee to thirty days’ time. On October 10th, following, appellee served a subcontractor’s notice on appellants that it had been employed by Struby and Harris to furnish material consisting of boiler and radiators under a contract between said firm and appellants on appellants’ property (describing it), and that there was due therefor the sum of $146.63 and that the appellee would hold the premises liable for the amount.

It appears from the testimony of appellant, Charles Biakie, that before the boiler and radiators were delivered Struby represented to Biakie that he had the material with bill of lading attached and could not get it until he had paid for it, whereupon Biakie paid him $300 on the contract with which to pay the draft; that Biakie did not know of the change in the terms of sale of the boiler by appellee from cash to thirty days’ credit and he further testified that Struby and Harris did not complete the job. Struby and Harris paid nothing on the material.

It further appears appellant Blakie made the payment of $300 without requiring a sworn statement from Struby and Harris as provided in section 5 of the mechanics lien law.

It is first contended by appellants that the decree declaring a lien is erroneous for the reason the notice of appellee was insufficient to create a lien; that there was not a substantial description of the material furnished and the notice was not sufficiently signed.

The form of such notice by a subcontractor required by section 24 of the statute concerning liens is as follows:

“To (name of the owner): You are hereby notified that I have been employed by (the name of contractor) to (state here what was the contract, or what was done, or to be done or what the claim is for) under his contract with you on your property at (here give substantial description of the property) and there is due to me or is to become due (as the case may be) therefor the sum of.......................dollars.
Dated at............this........day of..........
A. D........
(Signature)....................”

The purpose of this notice is to notify the owner of the amount claimed by the subcontractor so that the amount may be retained by the owner from the sum due the contractor. It was not necessary particularly to specify the number of radiators. The notice stated the claim was for radiators furnished and this was a substantial compliance with the requirement of the statute. The notice was signed “American Radiator Co. by Ralph W. Condee,” and it is argued that it does not appear in what capacity Condee was acting for appellee. The authority of Condee to give the notice for the appellee cannot be raised here since it was not raised in the trial court. No objection was made to the introduction of the notice in evidence.

It is further contended the transaction being a cash sale under the original contract between the contractors, Strnby and Harris, and appellee, the lien law did not apply. Notwithstanding the boiler was shipped cash and the terms afterwards changed, at the time the notice was given Struby and Harris were indebted to appellee for both boiler and radiators, and appellee was entitled to a lien against the property for the material to the extent that the owner was indebted to the contractors and also to the extent that the owner had paid the contractor in violation of section 5 of the lien law. That section provides:

“That it shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor * * * before the owner shall pay * * * to said contractor or to his order any money or other consideration due or to become due such contractor, or make or cause to b.e made to such contractor any advancement of any moneys or any other consideration, a statement in writing under oath or verified by affidavit of the names of all parties furnishing material and labor and of the amount due or to become due each * *

Section 32 provides:

“No payment to the contractor or to his order of any money or other considerations due or to become due the contractor, shall be regarded as rightfully made as against the subcontractor laborer or party furnishing labor or materials if made by the owner without exercising and enforcing the rights and powers conferred on him in Sec. 5 * * * of this act.”

Appellant not having required of the contractors, Struby and Harris, the affidavit provided for in section 5 supra but having paid them $300 without such affidavit, the sum of the payment was not rightfully made under sections 5 and 32, and did not relieve appellants’ property from a lien in favor of appellee for the payment of its claim of $146.63, for the material which had been furnished at the time of the payment.

Appellants could have protected both appellee and themselves by requiring of Struby and Harris the affidavit provided for in section 5.

Finding no error in the decree, it will be affirmed.

Affirmed.


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    George Bernhardt, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Statute oe Limitations—when begins to run for injury to real property. Where a permanent structure legally authorized, such as a railroad embankment, is built and there is no improper or negligent construction, all damages past, present and future are sustained when the structure is erected and its operation begun, and the Statute of Limitations begins to run on the completion of the structure. Where, however, “a structure is built by legislative authority and damages result from negligent or improper construction, the party injured is not bound to assume the imperfect structure will be permanent, and he may bring successive actions for resulting damages. The remedy for negligent or improper construction is to hold the party responsible for all damages resulting therefrom until the cause of damage is removed by a proper construction.” In case of such negligent or improper construction the injured party may at his election either treat the structure as permanent and sue for all damages, past, present and future, or he may treat it as temporary and transient, assuming it will be removed, and sue and recover for each recurring injury resulting from such negligent construction.
    2. Watercourses—duty of railroad company intersecting. Railroad companies in intersecting watercourses are required to restore them to such state as not to impair their usefulness unnecessarily.
    3. Measure oe damages—for overflouring lands. The true measure of damages where lands are wrongfully overflowed so as to deprive the owner of their use, is the fair cash rental value.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Kramer, Kramer & Campbell, for appellant; Edward Barton, of counsel.

      C. E. Chamberlin and Barthel & Klingel, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was an action by appellee to recover damages for the alleged wrongful erection of its railroad embankment with insufficient openings for the passage of surface waters whereby appellee’s lands were rendered less fit for. the cultivation of crops for a period of five years prior to the filing of the suit. A jury returned a verdict for appellee for the sum of $780 upon which there was a judgment.

Appellant interposed a plea of the general issue and in addition thereto a plea of limitations that the cause of action did not accrue within five years.

It appeared from the evidence that appellee was the owner of a tract of land located in Silver Creek bottom about ninety acres of which were in cultivation. He had owned the land since 1891. Silver Creek is a stream flowing in a southerly direction and appellee’s land is located about a mile north of the embankment of appellant which is the subject of complaint here, and on the west side of the bottom near the bluffs. The bottom along there west of the creek is about a quarter of a mile in width. The testimony further shows that the banks of the creek are higher than appellee’s land through which there is a kind of slough or low ground where the water in a state of nature flowed south, and flowed into Silver Creek still south of the embankment prior to its construction. In the year 1901 appellant built a solid embankment for its railway entirely across the bottom, a distance of nine hundred feet west of the creek and across the bottom on the east side a distance of five hundred feet. The embankment was twenty-five feet high. No openings were made except at the creek where there is a bridge making an opening of four hundred feet. Between the embankment and the land. of appellee there is a highway and an electric railway across the bottom; each has openings on the west side, of the bottom, the former an opening one hundred and seventy-eight feet and the latter one of about one hundred and forty feet through which the water on the west side was accustomed to flow.

There was evidence of several witnesses that since the erection of the embankment of appellant the surface waters which had formerly flowed through the openings of the highway and electric road on to the creek beyond the embankment, were dammed and kept back by it upon the lands of appellee and others along the west side of the bottom and were caused to stand upon the lands two or three days longer than they stood before, and to the extent that no crops could be raised in the five years prior to the bringing of the suit except the year 1906 when a crop was raised. The testimony of appellant’s witnesses was to the effect that the embankment would not so affect the land at its distant location but as the evidence was conflicting there was no error in refusing to direct a verdict for appellant upon this question.

It is contended the motion to direct a verdict should have been given for the reason the undisputed evidence showed the Statute of Limitation began to run upon the completion of the embankment in 1901 more than five years prior to the bringing of the suit.

Where a permanent structure legally authorize!, such as a railroad embankment, is built and there is no improper or negligent construction, all damages past, present and future are sustained when the structure is erected and its operation begun, and the Statute of Limitations would begin to run on the completion of the structure. C. & E. I. R. R. v. Loeb, 118 Ill. 203; North Shore St. Ry. Co. v. Payne, 192 id. 239.

Where, however, “a structure is built by legislative authority and damages result from negligent or improper construction, the party injured is not bound to assume the imperfect structure will be permanent and he may bring successive actions for resulting damages. The remedy for negligent or improper construction is to hold the party responsible for all damages resulting therefrom until the cause of damage is removed by a proper construction.” North Shore St. Ry. Co. v. Payne, supra; O. & M. Ry. Co. v. Wachter, 123 id. 440; C. B. & Q. R. R. Co. v. Schaffer, 124 id. 112.

In case of such negligent or improper construction the injured party may at his election either treat the structure as permanent and sue for all damages, past, present and future, or he may treat it as temporary and transient, assuming it will be removed, and sue and recover for each recurring injury resulting from such negligent construction. Strange v. C. C. C. & St. L. Ry. Co., 151 Ill. App. 478; Same, 245 Ill. 246.

Appellee’s declaration in substance averred a negligent construction in the erection of the embankment without sufficient openings to permit the free passage of water whereby the flow of the waters coming naturally on appellee’s land from the overflow of Silver Creek and which ought to and naturally would run off the land over and along the place occupied by the embankment had been diverted from its natural course and had been caused to flow in larger quantities upon the land and to remain thereon for a longer period of time than it naturally would, and causing the land to become wet and swampy and to a large extent unfit for cultivation during the five years prior to the bringing of the suit.

Bailroad companies in intersecting watercourses are required to restore them to such state as not to impair their usefulness unnecessarily. This duty arises at common law and it is also imposed by statute. O. & M. Rwy. v. Thillman, 143 Ill. 127.

We are of opinion the evidence heretofore adverted to was sufficient to support the verdict that the embankment was improperly and negligently constructed without- sufficient openings, resulting in the damages complained of; and was also sufficient upon appellant’s plea of limitations to authorize a recovery; appellee electing to treat the structure as temporary, and to sue for recurring injuries, and that there was no error in refusing to direct a verdict nor in refusing to set it aside on these grounds.

Appellant assigns as error that the damages were excessive.

The most the evidence showed or tended to show was a loss of crops for four years. Witnesses familiar with the character of the land and what it would produce on an average before the embankment was built, testified a fair cash rental value would be on an average two dollars and a half or three dollars per acre annually; appellee stated that about half the time 'he raised a full crop of sixty-five acres of the ninety acres in cultivation.

There is no way of computing with accuracy the true measure of- loss where lands are overflowed so as to deprive the owner of their use. The lands might produce much or little or nothing, depending upon a variety of circumstances. In such case the rule has been adopted that the measure of damages should be the fair cash rental value, any other rule being speculative and uncertain. City of Chicago v. Huenerbein, 85 Ill. 594. The evidence tended to show appellee was deprived of the use of ninety acres for four years by reason of the improper structure which at a rental value of two dollars and a half per acre would be considerably more than the amount of the verdict.

Finding no error in the record, the judgment will be affirmed.

'Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Marion Ezell, Plaintiff in Error.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence where not clearly and manifestly against its weight.
    2. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in other instructions given.
    Error to the Circuit Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Mooneyham & Seeber, for plaintiff in error.
    G. A. Hickman, for defendant in error.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was. a prosecution under an indictment containing two counts charging plaintiff in error with selling intoxicating liquors in anti-saloon territory. He was found guilty on both counts upon which there was judgment and sentence.

The errors, relied on for a reversal, are that the evidence introduced on behalf of the people failed to show any sales of intoxicating liquor and upon giving and refusing instructions. No testimony was offered on behalf of plaintiff in error and but one witness was introduced by the People. This witness testified that plainfiff in error was engaged in the restaurant business and that he went to the place and called for tamberine and received a pint of the so-called beverage and on the same day he called for and received a bottle of jingo; that there was no labels on the bottles and that he paid twenty-five or thirty cents for the tamberine and ten cents for the jingo.

The witness testified that he had no judgment about what the tamberine was as he was not a whiskydrinker ; that he had drank whisky and knew its taste and that it tasted like whisky and had the color of it, although there was a good deal of difference between it and the taste of whisky. He said he could not tell from what he drank whether it would intoxicate if taken in sufficient quantities or not, and could not remember whether he smelled it.

In regard to the jingo the witness said he had drunk lager beer and that the jingo he purchased tasted, a little like it and if it was beer it was a poor quality and at least third grade.

In reading over the testimony of the witness some disinclination to testify appears, it seems to us. So far as our observation has gone, the names “tamberine” and “jingo” are confined to beverages sold in anti-saloon territory, and we are of opinion the evidence strongly tended to show that the tamberine and jingo purchased by the witness were whisky and lager beer and were spirituous and malt liquors respectively and being such were within the statutory definition of intoxicating liquors without proof that they had intoxicating qualities. With this evidence in the record, and where the jury saw the witness on the stand and heard him testify and returned a verdict of guilty, we are not disposed to disturb it.

We have examined instructions one, three and five given on behalf of the People and are of opinion they substantially state the law as applied to the evidence and there was no error in giving them.

Complaint is made of the refusal of the court to give instructions nine and ten asked by plaintiff in error. Number nine is upon the subject of a reasonable doubt and as the subject was fully covered by several other given instructions there can be no ground of complaint. Number ten was fully covered by number seven which was given.

Finding no error, the judgment will be affirmed.

Affirmed.


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    L. Morrison, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Damages—wliat proof incompetent. Damages may not be predicated upon the hearsay statements of parties not called as witnesses.
    2. Damages—when profits not recoverable. In an action by a passenger against a carrier to recover for negligence in carrying such passenger to a wrong destination, special damages claimed for loss of profits are too remote.
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    W. W. Barr and Charles E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    Charles H. Holt, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment against appellant for the sum of seventy-five dollars damages in an action charging negligence in carrying, him to a wrong destination.

Appellee who is described in his declaration as an optometerist and who testified he was a refractionist or specialist in fitting eye glasses, was at Centralia and desired to go to Patoka on the morning train, both places being on the line of appellant’s roads. He purchased a ticket from appellant’s agent and was told by him when the train would leave and on what track. Appellee was informed by some one standing at a train that it was the train for Patoka and appellee got aboard. The train left Centralia and by the time the train reached Ashley it was discovered appellee was upon the wrong train, a train that did not go to Patoka. The conductor directed him to get off, which he did and found he would have to return to Centralia leaving Ashley at 2:35 p. m. When he returned to Centralia it was late in the afternoon, too late for him to go to Patoka on that day. Appellee had advertised he would be in Patoka and he claimed damages for loss of time, additional expense, and the reasonable value of his services at Patoka if he had reached there as advertised.

He was permitted over objection to testify that he had been informed afterwards by five different persons that they had purchased glasses from other dealers at certain prices as appellee was not in Patoka, and that in calculating how much profit he would have made, he had lost one hundred and fifteen dollars by not being at Patoka.

All this testimony was inadmissible. It was mere hearsay. The parties who made these statements were not sworn and there was no opportunity to cross-examine them; moreover, such prospective profits were too remote and speculative. The special damages claimed for loss of profits that the passenger might have made are too remote. Such expected profits had reference to a collateral enterprise of appellee and did not arise out of any alleged breach of appellant’s contract to carry him to Patoka and cannot be presumed to have entered into the consideration of the parties. They were contingent, remote and speculative and could not be recovered.

' The court erred in admitting the evidence and in not sustaining appellant’s motion to strike it out.

Error is assigned on appellee’s instructions II a and III a.

It is said there was no evidence tending to show that any brakeman of appellant directed appellee to take the wrong train and that both instructions are based on such supposed testimony. We think tho testimony tends to show the fact and the instructions are not erroneous in this respect.

It is further said that instruction II a ignores the element of reasonable care on the part of appellee. The flagman of the train who was letting the passengers on says no ticket to Patoka was shown him and the instruction should have contained the element of reasonable care on the part of appellee in boarding the train.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed, and remmided.


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      Jacob Weiss, Appellee, v. Sandoval Zinc Company, Appellant.

    1. Pleading—departure defined. A departure in pleading is where a party quits or departs from the case or defense he has first made and has recourse to another.
    2. Statute oe Frauds—when replication not departure. A replication which replied to a plea predicated upon the one-year provision of the Statute of Frauds, that the contract in question was in writing, is not a departure from the declaration which did not allege that the contract sued upon was written.
    Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Nobleman & Smith, for appellant; Samuel L. Dwight, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment for the sum of $500 damages recovered by appellee for the alleged breach of a contract of employment.

The assigned errors relied on in the argument that the court improperly admitted a written contract in evidence and overruled appellant’s motion in arrest of judgment may be considered together, as both propositions involve a question of pleading, it being claimed that under the pleadings the written contract was not admissible and the judgment should have been arrested because of a departure in pleading.

The declaration was in assumpsit consisting of one count, declaring upon a contract by which appellee was employed for a period of five years at a salary of sixty dollars per month for the first year, and seventy-five dollars per month for the remaining four years, and alleging that without any reasonable cause he was discharged whereby he was damaged.

In addition to the plea of the general issue appellant interposed a plea of the Statute of Frauds and Perjuries, alleging the promises set forth in the declaration were not to be performed within a year, and that there was no memorandum or note thereof in writing signed by the appellant or by any person lawfully authorized by it in writing. To this plea in confession and avoidance appellee filed a replication traversing the plea, and averring the contract mentioned in the declaration was in writing signed by appellant, and setting it forth in haec vert a.

It is contended the replication was a departure from the declaration (which did not aver the contract to be in writing) upon which no judgment under the evidence could be rendered. The evidence showed the contract was in writing.

The replication in our opinion was not a departure from the declaration. A departure in pleading is where a party quits or departs from the case or defense he has first made and has recourse to another. It occurs for example where the replication contains matter not pursuant to the declaration and which does not support and fortify it. Chit. Pl. Vol. 1, 644, 12 Ed.

The replication did not set forth a different contract from that alleged in the declaration, and did not depart from it. That it was alleged to be in writing in the replication and not so alleged in the declaration did not make it a different contract but supported and fortified the declaration. “When the contract is in writing it is not necessary to state that circumstance in a declaration and even in cases where by the Statute of Frauds the promise is rendered ineffectual unless there be a memorandum óf its terms in writing, it is not necessary in a declaration at law * * * to show that the requisition of the statute has been complied with in this respect.” (Ibid. 304.)

The plea of the Statute of Frauds is a personal privilege which may be waived unless pleaded. Lear v. Chouteau et al., 23 Ill. 39; Ruggles v. Gatton, 50 id. 412. The statute does not make such contracts void but only voidable, and the courts will enforce them until the bar of the statute is set up. It is not necessary to anticipate the defense of the statute and aver in the declaration the contract to be in writing, but such averment may be made in the replication when the defense of the statute is made by plea.

There was no error in admitting the written agreement in evidence under the pleading or in overruling the motion in arrest of judgment.

It is further contended the court erred in admitting evidence of money having been furnished appellee by others to live on and that he had been so assisted when out of employment. The evidence was irrelevant and improper, but as the evidence in the case showed a breach of contract and consequent damages, no evil could result from it unless it would be in the recovery of excessive damages.

It was also erroneous to admit evidence of a balance of ten dollars due appellee for work performed under the contract for the reason the. declaration only declared specially for a breach of the contract.

Upon examination of the evidence we find the damages excessive, and find the amount due appellee under the contract, after deducting the sum earned by him after he was discharged to be $448.50, and the judgment will be affirmed in this court for that amount.

Affirmed.


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    L. C. Perks et al., Appellants, v. H. B. Eshleman, Appellee.
    1. Appeals and errors—how motion to dismiss must be made. The rules of the 4th District require that motions to dismiss appeals must he in writing and a motion to dismiss an appeal not in writing which does not go to the merits of the case cannot be considered.
    2. Negotiable instruments—when subject to defenses. An assignee of a negotiable instrument is not an innocent purchaser if attached to the note when purchased was a contract and the note recited that it was “given to comply with the contract attached and is a part of said contract.”
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Charles L. Rice, for appellants.
    C. S. Miller, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

The record discloses that the suit was brought against appellee and one J. H. Bradley, defendants; that a default was taken against Bradley and that the cause proceeded to judgment as to appellee without a final judgment being entered as to Bradley. It is argued the appeal should be dismissed for the reason it would not lie until the case was finally disposed of as to all parties.

This motion to dismiss" the appeal is incorporated in the brief of appellee.

Bule 19 of this court requires all special motions to be in writing and filed with the clerk together with the reasons in support thereof on the day before they shall be submitted to the court. No motion to dismiss the appeal was filed as required by the rule and the motion not going to the merits of the ease will not be considered now, C. & E. I. R. R. Co. v. Binkopski, 72 III. App. 22; Olson v. Sheffield, 90 Ill. App. 198.

The original declaration contained one special count declaring on a promissory note for the sum of $240. It was averred the note was executed by appellee to Bradley and by the latter assigned to appellants. The declaration also contained the common counts. The court sustained a demurrer to the declaration. The demurrer was to the whole declaration including the common counts which were not demurrable. Appellants took leave to amend the declaration and filed a special count in which it was averred in substance appellee had entered into a written agreement with Bradley for the purchase of raspberry plants which appellee agreed to properly plant and cultivate according to the best methods; that Bradley agreed the plants should be free from all diseases which they were subject to and that appellee further agreed with Bradley that when the plants matured and should bear fruit he would pick and ship it to market and out of the proceeds pay Bradley $240, the purchase price of the plants. It was further alleged the plants were furnished according to the agreement but appellee failed as to proper cultivation, and so negligently and improperly set out and cultivated the plants that they failed to bear, and that he had failed to pay the purchase price to the damage of the plaintiffs. This count was treated as sufficient by appellee.

A lot of special pleas appear in the record treating the original count on the note as being still a part of the declaration although a demurrer to it had been sustained. These pleas set up a total failure of consideration for the note of which it is averred appellants had notice. Beplieations were filed traversing the averments of the notice alleged in the pleas. The parties having by their pleadings and introduction of evidence treated the original special count as a part of the pleadings and the amended special count as stating a cause of action we shall so treat them.

To maintain the issues appellants introduced the note in evidence signed by appellee dated November 27, 1908, which promised to pay Bradley $240 on July 1st, after date, with seven per cent after maturity until paid. The following recital was written in the face of the note: “This note given to comply with contract attached and is a part of said contract.” Appellants also introduced the contract which was of the same date as the note signed by Bradley and appellee. The contract provided that Bradley was to furnish appellee with raspberry plants at the rate of twenty dollars per thousand to the amount of the note of $240; that appellee was to set out the plants carefully and properly at a time indicated by the first party and to have them properly cultivated at proper times according to the best methods. It was further provided that when the plants bore fruit appellee was to pick, pack and send the berries to market and after paying the expenses pay the residue of the proceeds upon the note until it was finally paid. Bradley by the contract agreed the plants should be free from all diseases such plants were subject to. Bradley, as a witness for appellants, testified the note was given for twelve thousand raspberry plants and the contract executed; that under the contract he furnished the plants and instructed appellee how to plant them; that he had had the plants inspected by the State Entomologist about September 15,1908, and he found them free from disease and that he himself had examined them and they were not diseased. Appellee testified he set the plants in good land for the raspberries; that he cultivated them thoroughly and according to instructions; that they soon began to die and in three or four months, half were dead and in the year 1910 they were all dead.

The witness says the plants had a disease called rootgall which he discovered when the plants began to die. He further states he picked no berries from the plants. Other witnesses corroborate appellee that the plants perished from rootgall. The evidence shows and there is none to the contrary that the plants were properly planted and cultivated by appellee as provided in the agreement and this being so, there could be under the terms of the contract with Bradley no liability to pay the note to him as it was to be paid from the proceeds of sales of raspberries to be grown from the plants. As to Bradley there was a total failure of consideration.

It is claimed appellants purchasing the note before maturity were not affected by the contract and were innocent assignees of a negotiable instrument. Appellant Perks testified that when he purchased the note the contract was attached and the recital in the note is that it “was given to comply with contract attached and was part of said contract.”

The note was made part of the contract in express terms and both note and contract must be read together as one instrument. Canterberry v. Miller, 76 Ill. 355; Wilson v. Roots, 119 id. 379.

Appellants not only had notice of the terms of the agreement and took the note subject thereto, but they also took it subject to such terms for the reason the instrument was not negotiable, being payable upon a contingency. They were equitable assignees and took it subject to the same defenses appellee could have interposed to the instrument in the hands of Bradley. Daniel on Neg. Ins. (3rd Ed) par. 41; Husband v. Epling, 81 Ill. 172.

The undisputed evidence that appellee properly planted and cultivated the plants and that they died and no fruit was borne by them was a complete defense under the agreement and the rulings of the court on instructions hot being in conflict with the views expressed in this opinion the judgment will be affirmed.

Affirmed.


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    David Berthall, Appellee, v. Mary E. Goss et al., Appellants.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    Replevin. Appeal from the Circuit Court of Perry county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Nelson B. Layman and Benjamin W. Pope, for appellant.
    W. O. Edwards, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee brought suit against appellants to recover fifty-five bushels of wheat. His affidavit in replevin described the wheat as being in a granary located on the northeast quarter of the northeast quarter of section ten, township five, range two, west of the third principal meridian, in Perry county. The wheat was not found at the place described but at- another place and it is urged this was a fatal variance. The evidence shows, and indeed there is no dispute, that the wheat sought to be recovered was wheat raised upon a piece of land purchased by appellee from appellants while the wheat was growing; that it was the same wheat due as rent in kind for the land and this being so and the wheat levied upon being identified as the same wheat, the description of the place was immaterial and might be rejected as surplusage. The levy on that particular fifty-five bushels of wheat was the object and purpose of the replevin writ and it was immaterial whether it was found in the place described or some other place.

It is also contended that the verdict finding appellee entitled to the property was against the weight of the evidence. It was sought by appellants to show that by parol agreement with appellee they were to have the wheat.

It appeared from the undisputed evidence that on November 8, 1909, appellants executed and delivered to appellee a deed of warranty conveying to appellee forty acres of land described as the northeast quarter of the northeast quarter of section ten, township five, range one, west, in Perry county, Illinois, and that at the time of the delivery of the deed the wheat in controversy was growing on the land and was afterwards harvested and threshed by the tenant, and delivered to appellants, as part of the amount of wheat due for the rent of the land described in the deed. There was no reservation in the deed of the growing crops.

Appellee argues that a verbal reservation is not binding or admissible in evidence where there was no reservation in the deed. Considerable evidence was introduced by appellants to the effect that prior to the execution of the deed appellee agreed to give one thousand dollars for the land and one-third of the crop. This evidence was admitted without objection and as error cannot now be assigned upon it, it will not be necessary to determine the question.

Whether there was such an agreement between the parties was disputed. In addition to the testimony of appellants that appellee did agree before the deed was made that he would pay one thousand dollars for the land and one-third of the crops growing, a witness named Wexel who was at the time in the employment of appellants, says he heard the conversation and that was the agreement. A witness Gunderson testifies that after the deed was made appellee in response to a question that he had bought the land and would have some wheat next year, said “No.”

These conversations were denied by appellee and as to the statement of Gunderson appellee is corroborated in his denial by another witness. Appellee testified that at the time of the execution of the deed appellants told him he should have the wheat. The tenant testifled he heard appellants say after the deed was made that appellee was to have the wheat. Martha Finney also testified that after the execution of the deed appellant, Malinda Goss, told her that in the first place she reserved the wheat but appellee would not buy the land and they then agreed to let him have the wheat to get him to buy the land because they needed the money.

The evidence was conflicting and the verdict should not be disturbed as being against the weight of the evidence on this question.

This disposes of all the alleged errors to which the attention of this court is called. The judgment of the Circuit Court will be aErmed.

Affirmed.