author: Pillsbury, J. Bartol, C. J.,

text:
    Charles P. Kellogg et al. v. James H. Turpie.
    1. Practice—Failure to preserve objections by exception.— Where there is no hill of exceptions in the record preserving the motion to quash an attachment, the action of the court thereon, and exception to such action, the Appellate Court will not consider the error assigned.
    2. Contract—Obtaining goods by fraud.—Where goods are obtained upon credit by means of false and fraudulent representations of the purchaser’s ability to pay, the seller may rescind the contract of sale in toto, and bring trover or replevin for the goods before the time of credit has expired.
    3. Waiver of tort an affirmance of the contract—-Assumpsit.— Bringing assumpsit for the price of the goods sold is a waiver of the tort, and am affirmance of the contract of sale, and in such case the action is premature if brought before the expiration of the time of credit.

      4. When assumpsit may be maintained.—When goods have been tortiously obtained, in order that assumpsit will lie, it is essential that the wrong doer should 'have sold the goods, or in some way conveited them into money or money’s worth.
    Appeal from the Circuit Court of Kankakee county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Stephen B. Moore, for appellants,
    argued that where goods have been wrongfully obtained, the seller may waive the tort and sue upon an implied contract, as for goods sold and delivered, and cited Abbott et al. v. Barry, 6 C. L. Rep. 186; Wilson v. Force, 6 Johns. 110; Hill v. Davis, 3 N. H. 384; 1 Comyn on Contracts, 38; 3 Phillips on Ev. § 404; 1 Esp. Cas. 430; 2 Esp. Cas. 522.
    When the vendees have been guilty of fraud in the purchase of goods upon credit, the vendor, without waiting until the time of credit has expired, may reclaim the goods, or he may waive the tort and recover in assumpsit for their value. Young v. Marshall, 8 Bing. 43; Hill v. Perrott, 3 Taunt. 274; Lightly v. Clouston, 1 Taunt. 113; Kayser v. Sickel, 35 Barb. 88; Harpending v. Shoemaker, 37 Barb. 271; Roth et al. v. Palmer, 27 Barb. 652; Toby et al. v. Palmer, 27 Barb.

      The plaintiff may elect to sue in assumpsit rather than tort, and in making such election he does not thereby adopt the express contract, but relies upon the implied contract arising from delivery and possession by the defendant of the goods. He may sue for goods sold and delivered, leaving the transaction to be proven on the trial: Putnam v. Wise, 1 Hill, 234; Cummings v. Vorce, 3 Hill, 273; Berly v. Taylor, 5 Hill, 577; Brownell v. Flogler, 5 Hill, 282; Baker v. Dobbins, 2 Denio, 136; Osborn v. Bell, 5 Denio, 370; Camp v. Pulver, 5 Barb. 91; Hinds v. Twiddle, 7 How. 278; Butts v. Collins, 13 Wend. 154; Chancey v. Yeaton, 1 N. H. 151; Hill v. Davis, 3 N. H. 384; Stockett v. Watkins, 2 Gill. & J. 326; Ford v. Caldwell, 3 Hill, 248; Floyd v. Wiley, 1 Mo. 430; Mitchell et al. v. Bettman, 25 Barb. 409; Pierce v. Drake, 15 Johns, 475; M. & M. Bank v. Gore et al. 15 Mass. 75; Burton v. Driggs, 20 Wall. 225; Jones v. Baird, 7 Jones (N. C.); Haggerty v. Palmer, 6 Johns. Ch. 437; Keiler v. Field, 1 Page, 312; Morris v. Rexford, 18 N. Y. 553; Marsh v. Keating, 1 Bing. 198; Corliss v. Gardner, 2 Hall, 345.
    Mr. James FT. Oeb, for appellee;
    contending that the vendor cannot sue for the price of the goods before the period of credit has expired, but must sue in tort for the value, and that by declaring for the price he affirms the contract, cited Gray v. St. John, 35 Ill. 222; Chitty on Contracts, 363; 2 Greenleaf on Ev. § 104; Dellow et al. v. Hull, 5 Reporter, 14; Knott v. Smith, 1 C. M. & R. 312; Ferguson v. Carrington, 9 B. & C. 59; Piscataqua Bank v. Loudy, 3 Miles (N. Y.) 312.
   Pillsbury, J.

On the 20th of December, A. D. 1875, and in January and February, 1876, the defendant purchased bills of goods of the plaintiffs, on a credit of four months. March 1st, 1876, the plaintiffs commenced their suit by original attachment, and filed the common counts- in assumpsit as their declaration in the cause.

Subsequently such proceedings were had under leave - of court to amend affidavit for attachment, and the declaration, that on December 5th, 1877, the plaintiffs filed the following declaration, omitting the formal parts:

“For that, whereas, heretofore, to-wit: On the 20th day of December, 1875, and for a long time previous thereto, and all the time since, were, and have been under their said firm name, carrying on business at Chicago, in said State, as merchants, selling at wholesale, goods and merchandise, and that heretofore, to-wit: on the 20th day of December, 1875, the said defendant came to the place of business of said plaintiffs, in said Chicago, and represented to said plaintiffs that he, said defendant, was engaged in the business of selling goods and merchandise at, to-wit: said Kankakee county, and requested said plaintiffs to sell him, said defendant, goods, wares and merchandise, from time to time, on credit, and to induce said plaintiffs' to sell said defendant goods, wares and merchandise, on credit. Said defendant then and there stated and represented to said plaintiffs that he, said defendant, and his brother, William Turpie, jointly owned six hundred and forty acres of land, situated in said Kankakee county, worth the sum of ninety-six hundred dollars. That the said defendant was the. owner of a large amount of lands in the States of Indiana, Kansas and Arkansas, of great value; and that he, said defendant, owned lands in White county, in the State of Indiana, of the value of seven thousand dollars; and that he, said defendant, was worth the sum of twelve thousand dollars, over and above all his liabilities and indebtedness; and said plaintiff, relying upon said statements and representations, and believing them to be true, did thereafter, to wit: on the 20th day of December, A. D. 1875; and to wit: on the 7th day of January, 1876; and to wit: on the 18th day of February, A. D. 1876, at Chicago, at the request of the said defendant, sell to said defendant divers goods, wares and merchandise, at the price in the aggregate of a large sum of money, to wit: the sum of eleven hundred and twenty-four dollars and thirty-five cents, and of the value, to wit: of the sum of money last aforesaid, on a credit of four months from the date of the several sales of goods, wares and merchandise, for the price of the goods at said several times respectively sold. And at said several times then and there delivered said goods, wares and merchandise to said defendant, and he appropriated said goods to his own use. And the plaintiffs aver that all and singular these said representations of the said defendant, and his said statement as to his ownership of land, and of his being worth the sum of twelve thousand dollars over and above all his indebtedness and liabilities, were, all and singular*, false, and made with the intent to deceive said plaintiffs. As they aver, that said defendant at the time he made said representations and statements, was totally insolvent; all of which said defendant then and there well knew. And said plaintiffs aver, that the only inducement for them to sell goods, wares and merchandise to said defendant, on said credit, was the belief on their part that said representations of said defendant were true, without which they would not have sold said goods, wares and merchandise, to said defendant, oil said credit; and said plaintiffs further aver, they first learned said representations and statements of said defendant, as to said ownership of land, and said statements that he was worth the sum of $12,000 over and above all his liabilities and indebtedness, were false, and that said defendant was insolvent, as aforesaid, on, to-wit: the last day of February, A. D. 1876, and that as soon as they learned said representations and statements, so, as aforesaid, made by said defendant were false, they rescinded said contract of sale of said goods, wares and merchandise, so made as aforesaid, on credit, and demanded pay thereof, immediately, namely, the said value of said goods, at the time they were sold and delivered as aforesaid.

And so plaintiffs say that by reason of the premises, said defendant is indebted to said plaintiffs in a large sum of money, to-wit, said sum of $1,124.75, the reasonable worth and value of said goods, wares and merchandise, at the time they were sold and delivered to said defendant, as aforesaid. And the said plaintiffs aver that said goods, wares and merchandise, at the time of the sale and delivery thereof, were reasonably worth said last sum of money, to-wit: at Chicago, to-wit: at said county of Kankakee, whereof the said defendant, to-wit: on the day and year last aforesaid had notice, yet the said defendant though often requested, has not paid, etd.”

The affidavit for the attachment is in substance the same as the declaration.

The Circuit Court quashed the writ of attachment, and sustained a demurrer to the declaration, and the plaintiffs abiding by their declaration, a judgment for costs was rendered in favor of the defendant.

The plaintiffs bring the case to this court by appeal, assigning the following errors:

First. “The court erred in sustaining the demurrer to the special count of the declaration.”

Second. “ The court erred in dismissing the suit and quashing the affidavit for attachment.”

There is no bill of exceptions in the record preserving the motion to quash attachment, the action of the court thereon, and the exception to such action, hence we cannot consider the second error assigned.

This, however, is unimportant, as the same legal question arises upon the allegations of the declaration. It will be noticed that by the error first assigned, the only action of the court questioned is in sustaining the demurrer to the special count of the declaration.

This is in accordance with the agreement of counsel to waive, abstract, and submit the cause upon the statement contained in plaintiff s brief, and counsel for appellants fairly states the point arising in the cause when he says: “ The only question

I shall discuss is, will the action of assumpsit lie upon the facts stated in the affidavit and declaration?

“ I admit that the goods were sold upon a credit of four months, and before the expiration of the time this suit was commenced.”

What is the effect, then, upon the contract, of bringing assumpsit for the price or value of the goods sold under the circumstances alleged in the declaration?

The following propositions are undoubted law in this State: First. That where goods have been obtained tortiously, in order that assumpsit can be maintained, it is essential that the wrong doer should have sold the goods, or in some way converted them into money or money’s worth. Creel v. Kirkam, 47 Ill. 344; Johnston et al. v. Salisbury, 61 Ill. 316.

Second. That where a party rescinds a contract on the ground of fraud, such rescission must be total; a portion of the contract cannot be affirmed and a portion repudiated. Bowen v. Shuler, 41 Ill. 193; Ryan v. Bryant, 42 Ill. 78; King v. Mason, 42 Ill. 223.

While this last proposition is admitted by counsel for the appellants, it is most earnestly insisted by him in his very able brief, that where a party obtains goods upon credit by special contract which is based upon fraud, the special contract can be repudiated, and an action of assumpsit immediately sustained to recover the value of the goods; and he cites many authorities, which it is claimed sustain such doctrine. Not being advised that the point herein involved has ever been before our Supreme Court and there adjudicated, we have as fully and carefully examined all the authorities cited, and others brought to our attention in the examination, as our time and facilities would permit, and shall content ourselves with drawing largely upon them for this opinion, rather than stating merely our conclusions from them.

Mr. Benjamin, in his work on Sales, page 342, referring to this subject, says: “ This contract is voidable at the election of the vendor, not void ab vrvitio.

It follows, therefore, that the vendor may affirm and enforce it, or may rescind it. He may sue in assumpsit for the price, and this affirms the contract, or he may sue in trover for the goods or their value, and this disaffirms it.”

“ But in such cases,” says Mr. Chitty, in his work on Contracts, the vendor must either affirm or disaffirm the transaction as a whole, and therefore, where goods are fraudulently procured to be sold on credit, the vendor cannot sue for the price before the credit has expired; but he must sue in tort for the value of the goods, for, by declaring for the price, he affirms the contract; and where there is an express contract between the parties, the law will not imply any other.”

To the same effect is Story on Sales, Section 446:

u Where goods have been obtained through the fraud or misrepresentation of the vendee, the vendor may either affirm the sale or -rescind it and reclaim the goods. If he elect to rescind he must, as we have seen, do so within a reasonable time, and must take care to do nothing affirmatory of the contract, or his right to rescind will be lost. And, in such case, he should sue in trover or replevin for the goods, treating the whole contract as utterly nullified by the fraud, and he should be careful not to bring assumpsit, since, as the foundation of this action is the promise of the vendee, the contract is thereby directly affirmed, and his rights will depend upon the contract solely.”

In Smith v. Hodson, 4 D. & E., decided in 1791, in Court of King’s Bench, the plaintiff, as assignee in bankruptcy of Lewis and Potter, brought assumpsit against the defendant for goods sold and delivered by the bankrupts to the defendant, who was one of the creditors of the firm. The sale was claimed by the assignee to be fraudulent, and the question was whether in such suit the defendant could set off his claim against the bankrupt. Lord Kenyon, in delivering the judgment of the court, said: “It is expressly stated in the case that the goods in question were delivered by the bankrupts to the defendant with a view to defraud the rest of their creditors; and therefore an action might have been framed to disaffirm the contract, which was thus tinctured with fraud; for if the assignees had brought an action of trover, they might have recovered the value of the goods. * * * But- this is an action on the contract for the goods sold by the bankrupt, and although the assignees may either affirm or disaffirm the contract, yet if they do affirm it they must act consistently throughout. They cannot, as has often been observed in cases of this kind, blow hot and cold. * * * * * * Therefore, on the distinction between the actions of trover and assumpsit, we are all of the opinion that a nonsuit must be entered.”

The case of Ferguson v. Carrington, 9 B. & C. 58, 17 E. C. L. 37, is identical with the case at bar.

Lord Tentebdbn, before whom the cause was tried, was of the opinion that if the defendant obtained the goods witli a preconceived design of not paying for them, no property passed to him by the contract of sale, and that it was competent for the plaintiffs to have brought trover, and to have treated the contract as a nullity, and to have considered the defendant not as a purchaser of the goods, but as a person who had tortiously got possession of them, but that the plaintiffs by bringing assumpsit had affirmed that at the time of action brought there was a contract existing between them and the defendant. The only contract proved was a sale of goods upon credit. The time of credit had not expired and the action consequently was brought too soon.

Upon motion for a new trial, it was urged, as in this case, that the credit having been obtained by fraud, the plaintiff might sue before the credit expired.

The court held, by Bailey J., “ The plaintiffs have affirmed the contract by bringing this action. The contract proved was a sale on credit, and where there is an express contract, the law will not imply one.

By Littledale, J., “At the time when their action was brought, the defendant was not bound by the contract between him and the plaintiffs, to pay for the goods. The plaintiffs claim to recover for breach of contract.” By Parke, J., “As long as the contract existed, the plaintiffs were bound to sue on that contract. They might have treated that contract void on the ground of fraud, and brought trover. By bringing this action, they affirm the contract made between them and the defendant.”

In the subsequent case of Strutt and others v. Smith, 1 C. M. & R. 311, the goods were sold upon the following terms: 7£ per cent, discount, bill at three months, ten per cent, discount, cash in fourteen days. The plaintiffs contending that they were induced to sell the goods by the fraud of the defendant, within fourteen days, held the defendant to bail and declared the goods sold.

Park B. delivered the opinion of the court holding that: “ It is clear that the plaintiffs cannot avail themselves of the defendant’s fraud, so as to rescind the contract, and substitute a new contract of sale on different terms. They might possibly, on the evidence, have maintained trover, on the ground that fraud vitiated the contract; but if they treat the transaction as a contract at all, they must take the contract altogether and be bound by the specified terms. That was rightly decided in Ferguson v. Carrington. * * * * * He was not bound within the fourteen days to pay upon request.”

To the same effect are the eases of Read v. Hutchinson, 3 Camp. 352, and Bennett v. Francis, 2 Bos. & Pull. 550. In Selway v. Fogg, 5 M. & W., which was assumpsit for work and labor, th'e plaintiff gave evidence that the work was done which consisted in casting away rubbish, and that the value was 20l.

The defendant then gave evidence of a contract to do the work for 15?., which sum he paid.

The plaintiff insisted that that contract was obtained by fraudulent misrepresentation as to the depth of the rubbish carted away, and that being founded in fraud it was no answer to the action. A verdict went for plaintiff for 5?., with leave to defendant to enter a rule for non-suit. Such rule being obtained, the question was argued in the Exchequer, and the opinion of the court announced by Lord Abinger.

“ I am of opinion,” he said, “ that this rule ought to be made absolute. At the trial, I was impressed with the opinion, and still remain so, that the plaintiff cannot recover, and I think so on two grounds: First, because no one can be liable upon a contract which he never made, nor intended to make. The very idea of a contract being that it is an agreement entered into by two willing parties, acting with their eyes open. A party cannot be bound by an implied contract where he has made a specific contract, which is avoided by fraud. A person is not at liberty to say ‘ I have made two contracts, and if one of them is avoided by its fraud, then I will set up the other.’ But if he repudiate that contract on the ground of fraud, as he may do, he has a remedy by action of deceit.”

The second ground is not material to our inquiry.

Delone v. Hull, decided June 15, 1877, by the Court of Appeals of [Maryland, referred to in “The [Reporter” of January, 1878, was attachment to recover a sum of money alleged to be due for goods sold and delivered.

The goods were sold upon a credit of ninety days, and before the expiration of the credit, the action was brought, and the question there was the same as in the case at bar.

Bartol, C. J.,

speaking for the court, says: “There is no doubt of the proposition that where goods are obtained by means of a fraudulent purchase, the vendor has a right to dis-affirm the contract so as to re-vest the property in himself, and to recover its value in an action of tort against the vendee. Here the plaintiffs have not disaffirmed the contract, but have instituted their action upon it. In such case they must be bound by its terms, and cannot sue before the money becomes due. This is the principle of the common law, and there is nothing in the.act of 1864 to alter this. The action was brought prematurely.”

In Allen v. Ford, 19 Pick. 217, the same doctrine is announced: There it is said that: “If the plaintiff rescinds the contract, as he would have a right to do, the defendant failing to perform the condition of sale, his propier remedy for a conversion of the property is an action of trover, and he cannot waive the tort and recover the value of the goods in an action of assumpsit. In such a form of action the contract is admitted to exist at the time of the action brought, and where there is an express contract the law will not imply one.”

The Supreme Court of South Carolina, in Whittack v. Heard, 3 Rich. 88, holds that where the contract of sale is repudiated trover is the proper remedy, and assumpsit will not lie for their value.

We have referred to the above authorities at such length, in order that it may be seen that the very point involved in this was before the court in those, and the better to enable us to understand the distinction between them and the several cases cited as containing the contrary view.

Hill v. Perrott, 3 Taunton, 274, was a case where the defendant and one Dacosta, by a swindling transaction, procured the pilaintiffs to sell and deliver goods to Dacosta who was an insolvent person, and Dacosta gave in payment a bill indorsed by him, due at a future day. Dacosta immediately delivered the goods to the defendant. Hpon discovery of the fraud, the plaintiffs repudiated the pretended sale to Dacosta, as well as the worthless bill, and sued the defendant.

The court held that the defendant was the principal, and could not set up the sale to the insolvent, as he had procured it by fraud, and should pay for the goods.

This might well be, for, while the defendant was the purchaser, no credit was extended to him, but, through his fraud, they had given credit to the insolvent, who was only the defendant’s agent. That this was the principle of that case, see Selway v. Fogg, supra.

A case similar to the foregoing is that of Abbott’s and another v. Barry, 6 E. C. L. 186; the action was for goods sold and delivered, and the money counts. It appeared that one Phillips, being indebted to defendant, for the purpose of discharging the debt, procured wines from the plaintiffs by a string of contrivances, which amounted to a gross fraud, paying the plaintiffs only half the price of the wines, and giving a bill which was of no value, for the residue.

In these contrivances, the defendant was prime mover and participator, and furnished Phillips the money with which to pay in part. The wines were then under the direction and brokerage of the defendant, sold in Phillips’ name to Banyan, who accepted a bill drawn by Phillips for the amount, which Phillips immediately indorsed to defendant.

The court very properly held that the defendant was one of' the principals in the transaction, and that the profits of the sale-was money in his hands, which he held to and for the use of plaintiffs ; as by the fraud, the property in the wines had not changed.

This decision is in harmony with all the authorities, that where the defendant has disposed of the goods and received the-money therefor, the tort may be waived and assumpsit maintained for the money received.

So where the defendant has obtained by fraud money from the-plaintiff to be repaid at a future day, upon discovery of the fraud the plaintiff can repudiate the contract; the effect of which, is, that the defendant has money in his hands which in equity and good conscience he should at once return; hence, for so much money had and received, the action will lie in assumpsit. Such are the cases referred to of Hogan v. Shee, 2 Esp. 522, and the Manufacturers’ and Mechanics’ Bank v. Gore, 15 Mass. 75.

Also, where the vendor has been induced by fraud to take something in payment for his goods,-as the note or bill of some third party, payable in the future, which is worthless, he can treat the attempted payment as void, and sue at once for the price of the goods sold. Such is the case of Wilson v. Force, 6 Johns. 110. This is upon the ground that the. goods have not been paid for as agreed. The distinction between the two ■classes of cases is clearly stated in a note to the case above ■referred to, in 15 Mass. page 75, as follows:

“ Care must be taken to distinguish between cases where an -agreement has been made for time, for the payment independently of the security given, and the common cases in which goods are sold, and a bill taken in payment, payable at a future day, without any express agreement for time for the payment of the goods. In the last mentioned case, if the bill be disdionored, the drawer may be sued immediately, upon the origi;nal cause of action, without any regard being had to the time 'the bill has to run; because there being no agreement as to time, the party takes the bill as payment, and therefore if it 'turn out to be good for nothing, the creditor has not received that which the other undertook to give him, and may therefore pursue his remedy immediately.”

Keeping this distinction in view, it will not be difficult to harmonize nearly all the cases cited by the counsel for appellants with those referred to in former part of this opinion.

It is true, that in a cause tried before Eyre, C. J., in 1795, at nisi jyrius, he instructed the jury that if the defendant meant to impose upon or defraud the vendor of his goods, the defense that the credit had not expired would not avail him: DeSymons v. Minchwick, 1 Esp. 430. This is the only case in the English Courts that we have been able to find, where the exact point in the case at bar has been determined in favor of the position assumed by appellants.

All the other cases rest upon facts peculiar to themselves, which clearly distinguish them from Ferguson v. Carrington, As in Stedman v. Goach, 1 Esp. 3, where the vendor was induced to take'worthless notes of a third party in payment of his debt, or where the defendant by fraud, has procured the plaintiff to sell goods to an insolvent, and then get them into his own possession, as in Hill v. Perrott, and Abbots v. Barry, or where the defendant had fraudulently obtained money, then upon a rescission of the contract the money was recoverable as so much money had and received, as in Hogan v. Shee.

The case of DeSymons v. Minchwick supra, must be considered as overruled by the King’s Bench in 1829, in Ferguson v. Carrington, and in the Exchequer, in 1834, by the case of Strutt v. Smith, and by Selway v. Fogg.

The rule announced in DeSymons v. Minchwick, it appears, has been followed by the courts of Hew York, but they are not in harmony as to the grounds upon which their own decisions rest.

In Rath v. Palmer, 27 Barb. 652. where assumpit was brought, the court says: “Originally, and particularly in the English courts and in Massachusetts, a distinction was attempted to be established as to the cases in which the plaintiff should be allowed his election, and to confine it to cases where the fraudulent purchaser had parted with the goods, and received money on his sale of the same, which the courts allowed the plaintiff to treat as money had and received to plaintiff’s use.

But the cases in our own courts recognize no such distinction. They seem to allow it to be done in all cases where the plaintiff would have been allowed to pursue his remedy in tort, and the decisions in this court have been too numerous and too uniform to allow us now to set up any distinction or limitation even if it were desirable on principle.”

From this case, it appears that the rule that where goods have been tortiously obtained, the plaintiff can waive the tort and sue in assumpsit, only in those cases where the defendant has received .money for the goods, has no force in that State.

If this be so, the decision can have no weight in a State where -the rule is maintained, as it is admitted by the decision to be, in England and Massachusetts.

The rule established by the case is stated by Parker, C. J., in Jones v. Hoar, 5 Pick. 285. “ The whole extent of the doctrine as gathered from the books, seems to be that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong-doer sell the goods and receive the money, waive the tort, affirm the sale and have an action for money had and received for the proceeds. Ho case can be shown where assumpsit as for goods sold, lay in such a case, except it be against the executor of the wrong-doer, the tort being extinguished by the death, and no other remedy but assumpsit against the executor remaining.

That the rule announced in the above case is the law in our State is fully settled by the authorities referred to in support of our first proposition. The reason, then, for the law as declared in the case in Barbour, fails under those authorities. But the grounds of that decision are not tenable even in that State, as will be seen by the case of Wigand v. Sichel, in the Court of Appeals, 3 Keyes, 120, where the court, although sustaining the action of assumpsit, base their opinion upon an entirely different foundation.

“ It is not accurate,” says the court in that case, “ to say that the plaintiffs sought to avoid the contract of sale. It is the credit only that is sought to be avoided.

It was a sale of goods which the plaintiffs by their action affirmed. It was, however, a sale where the credit was obtained by fraud, and in law amounted to a sale for cash. In stating it in their complaint, therefore, to be a sale for cash, the plaintiffs but stated the contract according to its legal effect. They did not seek to avoid the contract of sale. They endeavored, merely by proof of the act of fraud, to reduce the transaction to a cash basis.”

While by the decisions in that State the court felt compelled to allow the action, yet, the adjudication of the common law courts in England and this country, endorsed by such eminent text writers as Story, Chitty and others, pressed upon it with such power, that it was forced to admit that bringing assumpsit affirmed the contract of sale. It was obliged, therefore, in order to sustain the action, to destroy the entirety of the contract of .sale, and to permit the plaintiffs to affirm that portion of the contract fixing the value or price of the goods sold, and to repudiate the credit given on such sale, upon which credit, undoubtedly, such price or value was based. While entertaining the highest respect for that very able court, we must be allowed to say that in our humble opinion, such doctrine is opposed to the whole current of authorities, and especially in our State, as shown by the cases cited under our second proposition, which is admi’tted by counsel for appellants to be undoubted law.

The goods were procured by contract, though fraudulent, one of the constituent parts of which was that time should be given for the payment thereof. With reference to this credit, the amount to be paid for the goods was determined; and we are unable to see how the credit was obtained by fraud, distinct from the other terms of sale, or how the credit can be avoided, and the sale be affirmed, with a different time of payment fixed, without the consent of the purchaser. If in such case the credit is the only part of the contract resting upon the fraud, and that can be severed from the other terms of sale, then it necessarily follows that the credit is the only portion of the contract that can be repudiated, leaving the contract of sale in full force in other respects; or, as the ISTew York court expresses it, “ it becomes a sale for cash.”

If, then, the legal effect of the contract, after such disaffirmance, is a sale for cash, the vendee is in no sense a wrong-doer, and the defrauded vendor cannot thus treat him, and re-vest himself with the title to the goods, which we believe is not considered good law anywhere.

With reference to these two cases, then, believing that the grounds upon which they rest are untenable under the law in this State, we feel constrained to dissent from the reasons and conclusions of the court in those cases.

The action of assumpsit is based upon a contract between the parties and a breach thereof by the defendant. In the bringing of the action, therefore, the plaintiffs admit that at that time there was a contract of some kind for the sale of the goods existing between the parties, and they seek to recover the value of the goods upon an implied contract to pay upon request, when they show upon the face of their special count, that the only contract between them was one to pay a certain price at a future day. If they rescinded the contract there was no sale, and the goods are still theirs; if they did not rescind, the contract is still in force, and they are therefore bound by its terms. By bringing the action of assumpsit, and attaching the property of the defendant, we are of the opinion that they have thereby created a conclusive presumption of affirmance of the contract of sale upon their part. Butler v. Hildreth, 5 Met. 49.

Upon a disaffirmance of the contract, the remedy by replevin to obtain the possession of the goods, or by trover for their value, with attachment in aid if necessary, was open to the plaintiffs for the assertion of their rights. Such we believe to be the law, according to the decided weight of authority; and while the distinction between the form of the action of trover and assumpsit is so clearly defined in the law, it would be unbecoming in us to make innovations where wiser men than we have shrunk from so doing. We are of the opinion, therefore, that the action was prematurely commenced, and that the demurrer was properly sustained to the special count of the declaration.

We see no error in the record that we can consider under the assignment of errors. The judgment of the court will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    Francis L. Cagwin v. E. Ball & Co.
    1. Statute or limitations—Money received by collecting agent. —Where a party receives notes for collection, and collects the amount due thereon, it is his duty to pay over as soon as the amount due upon any one note is collected, and his principal can have an action therefor, as to the money received, against him on his refusal to pay it over, and the Statute of Limitations begins to run from the time the money was received.

      2. Collections not a trust fund.—The sums so collected do not constitute such a trust as will save the bar of the statute. To exempt a trust from the bar of the statute, it must be, first, a direct trust; and second, it must be of a kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui qui trust.

    3. New Promise.—A promise to pay what is due, if anything, at the same time insisting that nothing is due, is not sufficient to take the case out of the statute.
    Appeal from the County Court of Will county; the Hon. Benjamin Olin, Judge, presiding.
    Hr. Geo. S. House, for appellant;
    that the statute begins to run whenever the plaintiff could bring suit, cited Shelburne v. Robinson, 3 Gilm. 599; 3 Parsons on Con. 90.
    A new promise must be of such a character as to clearly show a recognition of the debt, and an intention to pay it: Wachter v. Albee, 80 Ill. 47; Carroll v. Forsyth, 69 Ill. 127.
    As to the exemption of a trust: Hayward v. Gum, 82 Ill. 389; The Governor v. Woodworth, 63 Ill. 258.
    Fraud may be replied to the Statute of Limitations, but such fraud must be specially pleaded: Campbell v. Vining, 23 Ill. 525.
    Hr. Egbert Phelps, for appellees;
    that a trust was established, and no right of action could accrue until appellant assumed a position hostile to the trust, cited Ogden v. Larabee, 57 Ill. 389; Schroeder v. Johns. 27 Cal. 274; 3 Parsons on Con. 93; Lyle v. Murray, 5 Sandf. 590; White v. Leavitt, 20 Tex. 703.
    The statute does not begin to run as to an agent or attorney, for moneys collected by him, until a demand and refusal: Taylor v. Spears, 8 Ark. 429; Gardner v. Payton, 5 Cranch, 560; Judah v. Dyott, 3 Blackf. 324; Hyman v. Gray, 4 Jones, 415; Lever v. Lever, 1 Hill, 62; Merle v. Andrews, 4 Tex. 200; Roberts v. Armstrong, 1 Bush, 263; Sneed v. Hanley, 1 Hempst., 659; Blount v. Robson, 3 Jones, 73.
   Pillsbury, J.

Action for money had and. received, commenced February, 1874. Appellant being a private banker and collecting agent, received from appellees certain notes for collection, in 1870. These notes were collected in 1872, except one, which, was put in judgment and not yet paid.

The agent of appellees testifies that appellant told him, in 1872, that he had collected all the notes, except one for $9, and the one in judgment; that from time to time he wrote appellant but could get no reply.

Stevens, for appellees, states that he called upon Cagwin about two years ago with the claim. That Cagwin told him the money had been collected, but thought it had been all closed up. There might be $60 or $70 still due from him on account of it; if there was anything due he was willing to pay it, but he did not know that anything was due; never admitted any definite amount to be due; never promised to pay any definite amount.

The court found the issues upon the Statutes of Limitations, and upon the replication of a new promise in favor of plaintiff below, and rendered judgment for $274.

It is claimed, in support of this finding, that the judgment on one of the notes before the justice not having been paid, the plaintiff could not sue until all was collected, and hence the statute is not a bar.

This argument .proves too much, for if plaintiff could not sue for any until all was collected, no cause of action has yet accrued, as the appellant has never been able to collect the judgment.

As fast as appellant collected the amount due upon any one of the notes, he should have paid it over at once, and if he neglected or refused so to do, appellees could have maintained an action for it.

The statute commences to run from the time the cause of action accrues, which in this case was when the money was received by appellant, as there is no replication to the plea that he fraudulently concealed the cause of action, and no proof in the record to sustain such, if pleaded. The point made that the sums thus collected were trust funds, and therefore not within the statute, cannot be sustained under the authority of Hayward v. Green, 82 Ill. 389, where it is said: “To exempt a trust from the bar of the statute it must be, first, a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui que trust.”

There is no such trust here.

The evidence of a new promise is wholly insufficient to take the case out of the statute.

A promise to pay what is due, if anything, at the same time insisting there is nothing due, has never been held sufficient.

Such admissions are too uncertain and indeterminate to be acted upon: Carroll v. Forsyth, 69 Ill. 127; Wachter v. Albee, 80 Ill. 47.

We are of the opinion that the bar of the statute is complete.

The judgment must be reversed and cause remanded.

Judgment reversed.


author: Sibley, P. J.

text:
    William A. Jordan et. al. v. J. D. Easter et al.
    1. Effect of written instruments—Duty of court to construe. —It is the duty of the court to construe the effect of written instruments, and an instruction which submits the construction of such instruments to the jury is erroneous.
    2. Statement.—Appellees delivered harvesters to appellants under a contract, whereby they guaranteed the sale of a specified number during the year; and in case any remained unsold, appellees could require appellants to pay for those unsold, the harvesters to remain the property of appellees until paid for. At the close of the year a settlement was had, and appellants gave their notes for the machines remaining unsold, stipulating in the notes that they were given for the purchase of harvesters; that the machines should remain the property of appellees, etc.; and that appellees should have the right to possession thereof at any time, etc. Subsequently, at a meeting of the creditors of appellants, it was agreed by appellees, with other creditors, that appellants might sell the goods on hand, as the agents of their assignees, and the proceeds of such sale be divided pro rata among the creditors; such agreement not to release the claims of any creditor for goods in appellant's hands for sale on commission.
    3. Conditional sale.—Held, that appellants held the harvesters in question by menus of a conditional sale to them; that appellees, by joining with the other creditors in the agreement mentioned, had waived their right to retake the property, and they could not now assert it under a claim that appellants held the machines for sale on commission.
    Appeal from the Circuit Court of Grundy comity; the Hon. Josiah McEoberts, Judge, presiding.
    Messrs. Hill & Dibell, for appellants;
    argued that where personal property is sold with a reservation of ownership or title in the vendor, the sale is void as against third parties, and cited Hervey v. R. I. Locomotive Works, 93 U. S. 664; Murch v. Wright, 46 Ill. 487; McCormick v. Hadden, 37 Ill. 370; Ketcham v. Watson, 24 Ill. 591; Morris v. Grover, 2 Scam. 528; Butters v. Haughwort, 42 Ill. 18; 1 Parsons on Con. 537.
    Messrs. Garnsey & Knox, for appellees;
    contending that the title remained in appellees, and appellants could not dispose of the machines so as to prejudice their rights, cited Potter v. Dennison, 15 Gilm. 590; 2 Kent, 625; Story on Agency, § 225; Paley on Agency, § 340; 8 East. 13.
    That the settlement and giving of the notes did not waive their right to re-take the property: Murch v. Wright, 46 Ill. 487; Brundage v. Camp, 21 Ill. 330; W. U. R. R. Co. v. Wagner, 65 Ill. 197.
    The assignment by appellants did not divest appellees of their right to the machines, the assignees taking only the title of appellants therein: O’Harra v. Jones, 43 Ill. 288; Stow v. Yarwood et al. 20 Ill. 498; Dole et al. v. Olmstead et al. 41 Ill. 344; Goodwin et al. v. Mix et al. 38 Ill. 115; Reed v. Sands, 37 Barb. 185; Griffin v. Marguardt, 17 N. Y. 28; Harris v. Pratt, 17 N. Y. 249; In re Howe, 1 Paige Ch. 125.
    That parol evidence in relation to the settlement should not have been admitted to vary the written instruments: Hartford Ins. Co. v. Webster, 69 Ill. 392; Snyder v. Griswold, 37 Ill. 216; Harlem v. Boswell, 15 Ill. 56; Abrams v. Pomeroy, 13 Ill. 133; Broadwell v. Broadwell, 1 Gilm. 599; Lane v. Sharpe, 3 Scam. 567.
   Sibley, P. J.

This action comes up by way of appeal from the Circuit Court of Grundy county, where J. D. Easter & Co. recovered in replevin of the appellants seven Marsh harvesters. These harvesters were among others delivered to Jordan, upon a contract executed by him and the appellees, Ebv. 7th, 1874, by the terms of which they were to be shipped by Easter & Co. to Jordan, between the 1st of January and July, 1875.' In this contract, Jordan guaranteed the sale of the. machines, for which he was to have a certain sum for selling; and in case he failed to make sale, Easter & Co. could require him to take and pay for them himself, by note, to become due the 1st of August, 1876, or otherwise; the machines to remain the property of Easter & Co. until paid for in cash, or farmers’ notes. Eight of these machines, which were received by Jordan in the spring of 1875, were on hand Sept. 18th, 1876, when the agent of Easter & Co. called on Jordan and adjusted the matter of business then existing between the parties. Upon this settlement, four notes for 8300 each, payable on the 1st of August, 1876, were given by Jordan to Easter & Co. for the eight machines not sold. Attached to these notes was this memorandum:

The undersigned hereby waives all benefit of exemption laws, and all relief from stay of execution, valuation or appraisement laws, and agrees to pay an attorney’s fee equal to ten per cent, of face of note, to be entered up as part of judgment if this note is to be collected by suit. This note is given upon the purchase of a Marsh harvester, on the express condition that the title or ownership does not pass from J. D. Easter & Co. until this note and interest is paid in full; and the said J. D. Easter & Co., or their assigns, are hereby fully authorized and empowered to declare this note due any time they deem themselves insecure, exmn before the maturity of the note, and proceed to collect the note, and if they so elect, take possession of said Marsh harvester.”

At that time there was also executed by Easter & Co. the following receipt:

“ Office of W. A. Jobdan,

“ G-rundy county Agricultural Warehouse, Washington St.,

“Moebis, III., Sept. 18th, 1875.

“$1,200.

“Bec’dof W. A. Jordan four certain notes, of even date herewith, for the sum of twelve hundred dollars, being for eight Marsh Harvesters in hand; and we hereby agree that should we reduce the wholesale price for the season of 1876, that we will endorse upon said notes an amount equal to such reduction in price, provided that we may, at our option, take said machines, in good order, free of charge, except freight, upon the surrender of said notes given for the machines.

“ J. D. Easteb & Co.

“By Close.”

Jordan, after the execution of these notes and the receipt, prior to Oct. 11th, 1876, sold one of them, and appropriated the proceeds. On the latter date Jordan made an assignment of all his property to Conrad Burst, Wm. C. Downey and Hugh Hamilton, for the benefit of his creditors. Afterwards, on the 10th of Oct., 1876, the creditors of Jordan, including Easter & Co.,-held a meeting and entered into this agreement:

“At a meeting of the creditors of Wm. A. Jordan, of Morris, G-rundy county, 111., held this day, in said city of Morris, pursuant to a call made by Conrad Burst, Wm. C. Downey, and Hng-h M. Hamilton, assignees, to whom the said Jordan has heretofore conveyed all his property for the benefit of his creditors, it was unanimously resolved that the said Wm. A. Jordan be employed by the said assignees to take charge of all the assigned property, and assets, and proceed to sell and convert the same into money, under the supervision and direction of the assignees, who shall distribute the same under said assignment: On condition that the said Jordan shall accept such agency and agree to act in that capacity, without charge or expense to the assignees, and the said Jordan having signified his acceptance of such employment, and the conditions attached thereto; now, therefore, in consideration of these premises, we, the undersigned creditors of the said Jordan, whose names are hereunto subscribed, consent to and accept the arrangement proposed by said resolution, in full satisfaction of all our claims against the said Wm. A. Jordan, it being expressly understood that we do not intend hereby to release any claim which we, or any of us may have, to goods committed by us to the said Jordan for sale on commission. Witness our hands, this 25th day of Oct. A. D. 1876.”

The right of the appellees to recover these machines, depends principally upon the construction to be given to these written instruments.

Although it is assigned for error, that the court below refused to allow the witness, Jordan, to testify as to what took place between him and the agent of Easter & Co., in respect to the settlement of 18th Sept., 1875, and á majority of the court is of the opinion that he ought to have been permitted to answer the questions, since the written memorandum only related to the sale, and the condition of the title until payment made, many other facts surrounding the transaction, not intended to vary the contents of the written instruments, were proper to be proven by oral testimony. But it is quite clear that he should have been allowed to answer the question, Whether or not at the time of the assignment he had any property .in consignment for sale on commission.” Jordan was permitted to testify that he had considerable property that was turned over to the assignees, besides these Marsh harvesters. It then became important, in considering the construction of the composition agreement entered into by the creditors of Jordan, to know how he held it, in order to detemine the precise condition of the property which was so turned over. If Jordan held no goods on consignment for sale on commission, then the later clause of the agreement would have to be treated as a nullity, unless it could, by a forced construction to obviate that conclusion, be made to imply goods which had been obtained by means of conditional sales. But if Jordan had goods consigned to him for sale on commission, the language should be restricted to that class of property alone; and no other construction could reasonably be given to it. That Jordan, at the time of his assignment, held these Marsh harvesters by means of a conditional sale, admits of little question, whatever may have been the character of the delivery under the original contract of Nov., 1874, which seems to have partaken more of the nature of a delivery upon an agreement to purchase, than on a commission to sell; for the factor, by the terms of the contract, had agreed on certain conditions to become himself the purchaser, if he failed to make sale to others. By the settlement in Sept. 18th, 1875, when the notes were executed on the part of Jordan, and the receipt taken from Easter & Co., the character of Jordan’s possession was converted into that of a conditional purchaser, if it was otherwise before that time. The memorandum attached to each of the notes is that it was “ given upon the purchase of a Harsh harvester, on the express condition,” etc.; and the receipt executed by Easter & Co. to Jordan at the time these notes were given, also states that they were executed for the eight Harsh harvesters, which would seem to be conclusive evidence that Jordan did not hold the harvesters to sell on commission. It is said that by the terms of the receipt, Easter & Co. had the right to take possession of the harvesters at any time they chose, and therefore no sale could have been intended. We do not understand such to be the proper construction of the receipt. The wording is’, in substance, that if the wholesale price of the machines was reduced for the season of 1876, an amount equal to the reduction should be endorsed on the notes by Easter & Co.; or they would take back the machines if delivered in good order and free of charge, provided they preferred to do so.

The position is a correct one, that courts will construe contracts according to the intention of the parties who executed them. That is, the intention of all the parties, hot that either one can loosely or artfully insert into an agreement words of doubtful meaning, and then call upon the court to give them such a construction as the inserter intended, unless they will fairly bear that interpretation. Can there be any doubt that Jordan did not understand the writings of the 18th Sept., 1875, to mean a purchase by him of the machines?

Or that the creditors would have refused to sign the agreement of composition if they had given the same construction to the latter clause of it as is now insisted upon by the appellees. Nor unless they had understood that Easter & Go., by signing the agreement, had placed themselves upon the same footing with the other creditors, waiving all right to claim the machines as their own separate property. It is urged that Easter & Co. had other claims against Jordan besides the four notes, and were therefore his creditors independent of the notes, hence entitled to share in his assets as to those other claims. But is there any evidence that this fact was known to the other creditors at the time of the meeting and execution of the agreement, or that Easter & Co. did not then intend to put these four notes in as a claim against Jordan, for the purpose of obtaining a larger distribution of the assets in the hands of the assignees? None whatever, until after the agreement had been signed and the creditors adjourned and separated when the notes were tendered and the machines demanded of the assignee. How would it have been as the case stood when the composition agreement was executed by all of the parties, both debtor and creditors? They had agreed with Jordan that if he would devote his time, as agent of the assignees, to converting the assets into money, they would each take a pro rata share of it in full satisfaction of their claims. Now suppose the assets paid but fifty cents on the dollar, what was there to hinder the other creditors of Jordan, if they had seen the transaction in the light now sought to be viewed, from believing that Easter & Co. might present these notes as a debt against him, and obtain by that means a distribution sufficient to cover their other indebtedness in full; make the application on that alone, and hold these machines by virtue of the unpaid notes, while the balance of the creditors would be compelled to release their claims upon receiving one-lialf of the amount due upon them.

To instructions one, two, three, four and five, given for the plaintiff, no objection is discovered. They state the law with reasonable accuracy. That the assignees under this general assignment were in no better position than Jordan himself would have been to resist the claim of Easter & Co. to the harvesters, is a proposition too well settled in this State to require the citation of authorities in its support.

The 6th instruction given for the plaintiff, which is as follows:

“ 6. That if, from the evidence, the jury believe defendant Jordan agreed with plaintiffs that they (plaintiffs), should have the right to take possession of the machines in question at any time before the notes offered herein as evidence by the plaintiffs were paid on payment of freight on the machines, and that plaintiffs have not waived such right to take possession, but demanded said machines and tendered the freight charges thereon, said notes remaining unpaid and tendered, such agreement is valid and binding on Jordan and his assignees, and such a demand and tender to said assignees, would entitle plaintiffs to recover from them,” is liable to several objections. In the first place, it submits the question of the effect of the papers executed on the 18th of Sept., 1875, to be interpreted by the jury, all oral testimony having been by the court excluded. This was clear error. It is for the court to construe the effect of instruments in writing, and not submit that question to the jury. Bullock v. Narrot, 49 Ill. 62; Mitchell v. Town of Fond du Lac, 61 Id. 174; White v. Murtland, 71 Ill. 250; and it also completely ignored any change Easter & Co. may have made in respect to their right to take possession of the harvesters in signing the composition agreement, Oct. 25th, 1876. Instruction twelve is erroneous for the same reason, that it submits the question of law to the jury, whether the machines were held by Jordan on consignment for sale on commission. The judgment of the Circuit Court must be reversed and the cause remanded.

Judgment reversed.


author: Leland, J.

text:
    Thomas C. Hartshorn v. John L. Dawson.
    1. Appeals to Appellate Court—When appeal should be direct to Supreme Court.—The Appellate Court has no jurisdiction in common law suits involving a franchise or freehold. Actions of ejectment being common law proceedings, and directly involving the title to real estate, appeals therein should be made direct to the Supreme Court.
    Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Mr. L. E. Payson, for appellant.
    Mr. S. S. Lawrence, for appellee.
    Statement.—This was an agreed case, upon the following stipulation:
    “ It is hereby stipulated, that at the January term, 1874, of the Circuit Court of Livingston county, Illinois, a judgment was obtained by appellee in an action of ejectment (he being the plaintiff) against appellant. That Hartshorn appealed the case to the Supreme Court, to the September term, 1874. The judgment was affirmed in vacation, June 30th, 1876.
    “At the October term, 1876, of said Circuit Court, the case-stood on the docket. Upon the motion of the defendants below for a new trial under the statute upon payment of all costs to-that date, the said motion being filed August 1st, 1876. At said term (October, 1876,) the venue in said cause was changed to the Circuit Court of McLean county, by Hon. 27. J. Pillsbury, the then sole presiding judge of said court, upon his own motion, he having been of counsel for appellee in the case prior to his election.
    “ The files and papers in the case were still in the office of the-clerk of said -Livingston Circuit Court, at the January term, 1878. No costs of the change of venue having been paid by either party, and no stejis taken by either party to have the papers sent to McLean county.
    “ When appellee applied to Hon. F. Blades, presiding judge of the said court at that term (he having been elected at the June election, 1877, as an additional judge in said circuit under the new districting of the State), for leave to docket the case, &c., which motion was as follows, after entitling the cause:
    “ Now, on this day comes the plaintiff, by S. S. Lawrence, his-attorney, and enters his motion herein, to set aside and vacate .the order of this court, in said cause made at the October term '.thereof, 1876, certifying the files and records of said cause to McLean county, Illinois, for the disposition of the motion of ¡said defendants, filed in said cause August 1st, 1876, to vacate the judgment, and for a new trial in said cause. And also ■enters his motion for a Writ of Restitution upon the judgment ¡rendered in said cause, at the January term of this court, 1874.
    “ It is also admitted that the cause was docketed and motion ¡made for the new trial, more than a year after the original judgment for the plaintiff.
    “ With the motion, was produced the certificate of the affirm - ¡anee of the original judgment -by the Supreme Court, showing .affirmance June 20th, 1876, which was filed with the clerk August 4th, 1876.
    “ It was objected by the defendants below that the court had mo jurisdiction of the case to entertain the motion, on the sole ■ground that by the order changing the venue to McLean county in October, 1876, the Circuit Court of Livingston county lost jurisdiction of it, and could not take it except by consent, which defendants refused to consent to, and that this motion could be properly entertained only in the McLean county Circuit Court. That this, objection was specially made by defendants; that they objected to the Circuit Court of Livingston county taking any steps in the case. But the court overruled the objection, and entered the order as prayed, that the order changing the venue of the case, made at the October term, 1876, as aforesaid, be set aside and vacated: That the motion made by defendants at the October term, 1876, for a new trial, be overruled, and that a new writ of restitution issue on the original judgment. To all of which defendants excepted, and appealed to this court.”
    ■ Upon this state of facts this question is presented. Had the Circuit Court of Livingston county (Judge Blades, presiding), as against the objection of defendants, jurisdiction to entertain the motion and make the above order; or, in other words, did not the Circuit Court of Livingston county lose jurisdiction of the .case till it was disposed of in McLean county?

      This stipulation is made to save the expense of a lengthy record to raise the question of jurisdiction, and this is presented in good faith.
   Leland, J.

There seems to be an insuperable difficulty in the way of a decision of the question presented.

The Appellate Court, as we understand the statute, has no jurisdiction in common law suits involving a franchise or freehold. Though the Supreme Court has lately held that all chancery causes go to the Supreme Court by the way of the Aprjellate Court only, and has dismissed appeals in such cases for that reason, we are informed that suits at common law of that kind, as well as criminal causes, are considered and determined by the Supreme Court.

It seems clear to us that an action of ejectment now, however it may have been once, directly involves the title to real estate. Rev. Stat. of 1877, Sec. 34, p. 439.

It is true, that by one of those legislative inaccuracies which a higher degree of care might have prevented, it is untruly assumed in section 89 (88), on page 746, Rev. Stat. of 1877, that appellant or plaintiffs in error may exercise an election in taking common law cases involving a freehold, and criminal cases, to the Supreme Court, and also in section 91 (90), that an appeal lies from the Appellate to the Supreme.Court in such cases. There is, however, no such election between the Appellate and Supreme Court provided for, nor is there any way provided for that class of cases going to the Appellate Court from a Circuit Court. On the contrary, in section 25 (8), on p. 323, Rev. Stat. of 1877, it is expressly enacted that the Appellate Court has not, but that the Supreme Court has, appellate jurisdiction in all such cases. The mistake probably occurred by reason of the Practice Act having been framed to fit an Appellate Court bill, and the latter having been changed, and the former not having been adjusted to it after the change; so that probably the last intention of the writer of the acts was expressed in the Appellate Court Act and not in the Practice Act.

"What the last intention of the legislature was, is more difficult to conjecture. We are not disposed to treat the incorrect assumption in the Practice Act as controlling the express words in the Appellate Court Act, which actually confer the jurisdiction upon the Supreme and Appellate Courts, respectively, without any ambiguity. We have no doubt, this case not being a chancery case, mentioned in Sec. 88 of the Practice Act, should go directly to the Supreme Court, under the express language of section 8 of the Appellate Court Act, and not via the Appellate Court, like the chancery cases mentioned in said Sec. 88. The expression “ chancery cases,” should exclude common law and criminal cases, under the maxim that the expression of one excludes the other. If this parting of law and chancery is an unexpected one to the members of the last legislature, let the next one bring the parties together, at its approaching session; and we hope, also, that the law will be made a little more clear in some rather obscure places.

For these reasons we feel compelled to dismiss the appeal, for want of jurisdiction.

Dismissed.

Pillsbtjby, J., took no part in this decision.

       For contrary opinion as to jurisdiction, see post p. 189.


text:
    The Wilmington Coal Mining and Manufacturing Company v. John Barr.
    1. Cokteact foe sebvices—Coestbuctioe.—Appellee entered into the service of appellant under a written contract, providing, among other things, in a rule of the company, which was made a part of the contract, that “ any employee wishing in good faith to leave the company’s service, may do so at any time without giving previous notice.” Under the provisions of this rule the right of appellee to quit appellant’s employ before the expiration of his term of service is unquestioned. Language contained in another portion of the contract, “that he would not stop work,” etc., cannot, in the light of the whole contract, be so construed as to make it an entire contract.

      2. Quitting in good faith—Evidence bearing upon that question.—The good faith of appellee in leaving the employ of the company, is presumed until the contrary is shown, yet the motive which induced him to this action is a matter to be fairly submitted to the jury, and hence the question asked a witness, whether he knew of appellee’s joining any strike or combination for the purpose of causing the company to pay him or other miners an advance in wages, was proper, and an answer should have been allowed.
    3. Practice—Instructions not all appearing in the record.— The objections raised by appellant of the refusal by the court to give instructions asked, cannot prevail, because, although the instruction refused may have substantially embodied the law applicable to the case, yet as the same principles may have been announced in other instructions given by the court, but not incorporated in the bill of exceptions, it is impossible to say that there was error in its refusal.
    4. Damages caused by leaving service—Recoupment.—The refusal of the court to permit testimony as to the damage occasioned to appellant by appellee leaving before the expiration of his time of service, cannot be considered error, for if appellant left in bad faith, he could not, under his contract, recover for any unpaid service, and recoupment would be unnecessary; and if he left in good faith, recoupment could not be allowed, because any injury the company may have sustained after the termination of the contract would not he the subject of recoupment, since it did not grow out of the same transaction.
    Appeal from the Circuit Court of Will county; the Hon. Josiah MoBobebts, Judge, presiding.
    Messrs. Snapp & Snapp, Mura & Murar, J. W. Meb.t?.tt,t.; and Geo. W. House, for appellant;
    that the contract for services was entire, and to entitle appellee to recover he must fully •perform his part, cited Eldridge v. Rowe, 2 Gilm. 91; Bagley v. Heald, 4 Gilm. 64; McMillan v. Vanderlip, 12 Johns. 166; Cutter v. Powell, 6 Tenn. 320; Barton v. Fitzgerald, 15 East. 258; 2 Parsons on Con. 11; Chitty on Con. 74.
    Hpon the question of recoupment: Sanger et al. v. Fincher, 27 Ill. 347; Lindley v. Miller, 67 Ill. 244; Streeter v. Streeter, 43 Ill. 155; Stowe v. Yarwood, 14 Ill. 424; 76 Ill. 430; Priestly et al. v. N. Ind. &. C. R. R. Co. 26 Ill. 205; Brigham et al. v. Hawley, 17 Ill. 38; McAper et al. v. Crofford, 13 How. 555.
    Appellant should have been permitted to show damages occasioned in consequence of appellee’s leaving its service; and the extent of such damages: Cooper v. Randall et al. 59 Ill. 317; Green v. Williams, 45 Ill. 206; Chapman et al. v. Kirby, 49 Ill. 211; Otto et al. v. Jackson, 35 Ill. 349; Mears v. Nichols, 51 Ill. 207; Haven et al. v. Wakefield, 39 Ill. 509; Smith et al. v. Wunderlich et al. 70 Ill. 426.
    Messrs. Haley & O’Donnell, and Mr. Wm. Mooney, for appellee;
    that it is presumed appellee acted in good faith until the contrary is shown, and the burden of showing the contrary is upon appellants, cited 1 Greenleaf on Ev. § 802; Best on Ev. § 314; Elkin v. Janson, 13 Mees. & W. 655; Chickering et al. v. Failes, Surv. etc. 26 Ill. 508; Dickinson v. Breedon, 30 Ill. 280; Frontien v. Frost, 3 Bos. & Pul. 302; Hamilton v. Singer Mf’g Co. 54 Ill. 370; Piner v. Cover, 55 Ill. 391.
   Sibley, P. J.

John Barr, in June, 1876, agreed with appellant to work as a collier under a contract, which, among other provisions, contained the following stipulations:

“'•This agreement, made this 13th day of June, A. D. 1876, between the Wilmington Coal Mining and Manufacturing Company, of the first part, and John Barr, of the second part, witnesseth:

“ That the said party of the second part has agreed, and by these presents does agree, to enter into the employment of the said party of the first part as a miner of coal, to commence on the — day of June, A. D. 1876, and continue therein until the first day of May, A. D. 1877, and to abide by and to adhere to and observe the rules and regulations hereto appended, which are made a part of this contract, and to abide by and observe all other rules and regulations promulgated from time to time by the said Coal Company, for the purpose of regulating mining and other employment in and about the coal mines of the said Coal Company; and not to be absent without leave, except in cases of sickness or other unavoidable contingency, that would prevent him from work; also to keep his roadway properly brushed down, and his room in good working order.

“And the party of the second part further agrees, that he will not stop work, join any strike or combination for the purpose of obtaining or causing the company to pay their miners an advance of wages, or pay beyond what is specified in this contract; nor will he in any way aid, abet or countenance any such strike,” combination or scheme, for any purpose whatever, during’ the time specified in the first clause of said contract.

“ IY. Any employee may be discharged at any time without previous notice, and any employee wishing in good faith to leave the company’s service may do so at any time without giving previous notice, but all arrearages of pay will be due and payable at the next regular pay-day after leaving said employment. Provided, when any employee is discharged by the company, a due-bill maturing on the next pay-day, will be given him for his balance.”

The trial in the Circuit Court resulted in a verdict for the plaintiff Barr, and damages assessed at $140.02. A motion was made for a new trial, which the court refused to grant, and an appeal was taken from the judgment there rendered.

On the trial the court permitted the witness Mackey to state what Robert Barr had .reported to him respecting the condition of John Barr’s room after he had quit work. If it was material to prove under the contract that his room should be kept in good order, Robert Barr was a competent witness for that purpose, and his declarations were mere hearsay, consequently should not have been admitted against the objections of the company.

Most of the questions put by appellant to the witnesses where the answers were disallowed by the court, which are now made the subject of complaint, were founded upon an erroneous construction of the contract, and therefore properly rejected.

Counsel for the company insist that the agreement is an entire one on the part of Barr, to work from the 15th of June, 1876, until the first of May 1877, and he having quit before-the expiration of the timé, without proof of a sufficient reason for so doing, cannot recover of the company for any services performed.

If the premises are correct, the conclusion is inevitable. But such a construction would violate the plain meaning of ordinary language. Rule 4, made a part of the contract, is explicit, that “ any employee, wishing to leave the company’s service, in good faith, may do so at any time without giving previous notice.” Could plainer words have been used to express Barr’s right to leave the company’s service at any time he chose, provided he left in good faith? The words that “he would not stop work,” etc., so triumphantly dwelt upon by counsel, to prove that he had absolutely agreed to remain in the company’s service until the first of May, have no such meaning.

Taken in connection with what follows, that he would not join in any strike, etc., means simply that while he remained in the employment of the company under the contract, he would continue to work, unless prevented by sickness or other unavoidable contingency. Ho astuteness is required to determine that to stop work, or quit entirely the service of another, are not convertible terms. Hence each clause in the contract can stand uncontrolled by the meaning of the other.

What is meant by quitting in good faith, is a proposition of easy solution. Grood faith is the opposite of bad faith, and here it is proper to remark that good faith is presumed until the contrary is proven. McConnell v. Street, 17 Ill. 253; Morrison v. Kelly, 22 Id. 626.

Bad faith might be inferred if Barr had quit the employment of the company, for the purpose of engaging in a strike or any other combination calculated to injure the interests of his former employers, contrary to the contract. In which case he could not recover for any services rendered, for the reason that he liad failed to comply with the terms of the agreement. The inquiry then arises, whether Barr left the employment of the company in bad-faith, and this was the main question to be determined by the jury. For it should be borne in mind, that the contract on his part was an entire one unless he left in good faith. That he quit before the expiration of the time stipulated in the contract there is no dispute. But the motive that induced him to this action was a matter to be fairly submitted to the jury. Therefore, when the witness Phelps was asked whether he knew of Barr’s joining any strike or combination for the purpose of causing the company to pay him or other miners an advance in wages, an answer should have been allowed.

The question may have been a little informal, but as no objection was interposed on that account, it was error to exclude the answer. Tor if, after leaving the company’s service, lie joined a strike or combination, for the purpose of forcing it to advance his or the miners’ wages above the contract price, this circumstance might have tended to prove that when he quit he had that object in view. How much weight it would have had with the jury is not a question now to be considered. The company ought not to have been deprived of the benefit of a full investigation into all the circumstances connected with Barr’s intention in quitting the company’s employment.

The third and fourth errors assigned by appellant cannot prevail, since the instructions given by the court for either party are not preserved in the record. The first and second asked by the company do not state the law with any degree of accuracy. The third, which is this:

3. “ If the jury believe, from the evidence, that the defendant quit working for the company in bad faith, before the 1st day of May, 1877, and joined a strike of the miners of Braid-wood, then such conduct of his was a violation of the contract, and the plaintiff cannot recover, and the jury will find for the defendant,” although substantially embodying the law applicable to the case, yet as the same principle may have been announced in other instructions given, not incorporated in the bill of exceptions, it is impossible to say that there was error in its refusal. One of the objections urged against it by appellee has little force. That there was no testimony upon which to base it. Besides being an incorrect assumption, still after having induced the court to improperly exclude a portion of what was sought to be proven on that subject, then to insist upon the advantage thus taken, by which proper testimony had been suppressed, is a reason which the doctrine of estoppel alone ought to render unavoidable.

The refusal of the court below to permit the witness to testify as to the amount of damages which the company had sustained in consequence of Barr’s having left its employment, is not subject to the objection made.

Tor if Barr quit in bad faith, he could not, as we have seen, recover at -all, and any recoupment in that case would have been quite unnecessary.

If there was no proof of bad faith at' the time of leaving, this recoupment could not be allowed, because any injury the company may have sustained by reason of Barr’s conduct after the termination of the contract, would not be the subject of recoupment, since, it did not grow out of the same transaction for which the suit was brought.

For the reasons indicated, the judgment of the Circuit Court is reversed, and the cause remanded for a new trial.

Judgment reversed.


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    The City of Elgin v. Lewis S. Eaton.
    1. Excavation in streets — Rights op adjoining owner.—The distinction between the case of an excavation made in a street, and one made by an individual upon his own adjoining land, as respects the right of recovery by the owner of abutting premises, is that such owner has the legal right to use the street; his right of ingress and egress is disturbed, and he may have damages therefor; while if the adjoining proprietor excavates upon his own land no harm is done unless his neighbor’s lot has been disturbed thereby.
    2. Statements op counsel to jury.—The court intimates that if it appeared in the record, as claimed by appellants, that counsel for plaintiff in his ai-gument to the jury, told them that “ what they ought to do was to award to the plaintiff the amount of the old verdict, and enough more to make plaintiff whole for the trouble and expense occasioned by the new trial,” it would be inclined to reverse for that cause.
    3. Evidence—Bias op witness.—It is competent, in cases of this kind to show the bias or feeling of witnesses, and in what direction are their sympathies, and questions tending to show a sympathy with one of‘the parties to a cause are proper, and should be allowed.
    4. Limit op recovery.—An instruction asked by the defendant, that the jury “ should not allow any damage to the plaintiff for any injury done to his premises by the grading of Bridge and Jackson streets, before the 8th day of August, 1870,” should have been given, and itwas error to refuse it. For any injury before that time because of excavations near to, but not on the lots of appellee, there was no remedy.

      Appeal from the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding.
    Mr. Eugene Clifford, for appellant;
    contending that the city is the owner in fee of the streets, cited Gross’ Stat. 102, §39; Hunter v. Middleton, 13 Ill. 50; Manley v. Gibson, 13 Ill. 308; Leech v. Waugh, 24 Ill. 228; Stephani v. Brown, 40 Ill. 428; I. B. & W. R. R. Co. v. Hartley, 67 Ill. 439; St. John v. Quitzow, 72 Ill. 334; Gebhardt v. Reeves, 75 Ill. 301.
    It was error to permit persons who have shown no particular experience or knowledge of the subject to testify as to the value of property or extent of damages: Robertson v. Stark, 15 N. H. 109; Rochester v. Chester, 3 N. H. 349; B. &. W. R. R. Co. v. O. C. R. R. Co. 3 Allen, 142; Harger v. Edmunds, 4 Barb. 256; Walker v. Protection Ins. Co. 16 Shep. 317.
    As to the meaning of the word “ damaged,” as used in the Constitution: People ex rel. v. McRoberts, 72 Ill. 38; Beardstown v. City of Virginia, 7 Chicago Legal News, 314; 2 Dillon on Corp. §488; 1 Kent Com. 462; Sedgwick on Con. Law, 221; Bouv. Law Dic.; Sedgwick on Measure of Damages, 29; Hills v. Chicago, 60 Ill. 86.
    An action will not lie against a corporation for the act complained of, unless an action would lie against a private person for a like act: Nevins v. City of Peoria, 41 Ill. 502; City of Quincy v. Jones, 76 Ill. 231; Stone v. Fairbury R. R. Co. 68 Ill. 394; Stetson v. C. & E. R. R. Co. 75 Ill. 74; C. B. & Q. R. R. Co. v. McGinnis, 9 Chicago Legal News, 86.
    That plaintiff has no interest in the street except in common with the public: Canal Trustees v. Hazen, 11 Ill. 554; Hunter v. Middleton, 13 Ill. 50; Plant v. L. I. R. R. Co. 10 Barb. 26.
    The contract for the grading was made before the adoption of the present Constitution, and hence no action can be maintained: Cooley’s Const. Lim. 555; Chicago v. Rumsey, 10 Chicago Legal News, 333; Smith on Statutory and Const. Construction, 289.
    Messrs. Botsford & Barry, for appellee;
    that the admission of the profile as evidence of the future cutting, was proper, cited Kidder v. Jacksonville, etc. R. R. Co. 21 Ill. 131; City of Elgin v. Eaton, 83 Ill. 535.
    The testimony as to damages was proper. The question of values or damages to real estate is not a question for experts: Alexander v. Mt. Sterling, 71 Ill. 366.
    A person damaged by the making of a public improvement may recover therefor: City of Pekin v. Brereton, 67 Ill. 477; Shawneetown v. Mason, 82 Ill. 337; City of Pekin v. Wrinkle, 79 Ill. 56; Brokaw v. Bloomington, 79 Ill. 194; Clayburgh v. Chicago, 25 Ill. 535; City of Elgin v. Eaton, 83 Ill. 535.
    As to the measure of damages: C. & P. R. R. Co. v. Francis, 70 Ill. 238.
   Leland, J.

This same case has been to the Sujireme Court, and so far as the right of appellee to a verdict is concerned, it is settled that he has a cause of action under section 13 of article two, of the Constitution of 1870, though the law may have been otherwise before August eighth, 1870, when the Constitution went into effect.

The distinction between the case at bar and one where there is a similar excavation by an individual on his own adjoining land, is plainly apparent, appellee had the legal right to use the street. If the adjoining proprietor excavated on his own land, no harm was done unless appellee’s lot was disturbed, because he had no right to use the neighboring land. He had no right of ingress and egress to be disturbed.

If it appeared in the record as stated in appellant’s brief, that on the argument of the case, appellee’s counsel told the jury that “what they ought to do was to award to the plaintiff the amount of the old verdict, and enough more to make him whole for the extra trouble and expense occasioned by the new trial,” we would be strongly inclined to reverse for that cause alone. Brown v. Swineford, Cent. Law Journal, Sept. 13th, 1875, p. 208, but having carefully examined the bill of exceptions, we find nothing of the kind in it.

The amount of this verdict indicates that there was no leaning on the part of the jury in favor of the corporation, and against the appellee, which is sometimes to be feared where jurors may be contributory tax-pavers. It may be, however, that they were from the country, were not influenced by any such consideration, so that their sympathies may have been allowed to operate in the usual manner.

The verdict is liberally large, according to the evidence. The plaintiff estimated his own damages at $1,500, but no man’s judgment in his own case is of any real value.

There were ten other witnesses, whose opinions ranged from $500 to $1,100. A careful computation makes the just medium, including the evidence of plaintiff, a trifle over $900. If, however, we make an aggregate of the average amount sworn to by the ten, and divide by that figure, the amounts as sworn to by appellee’s witnesses would make a just verdict less than $900.

Some seven witnesses for the appellant testified that though it would cost something to put the premises in shape, they would really be worth as much more as the cost of doing it. Take the average of the evidence of these seven, and according to that there would be no injury—perhaps a benefit. Therefore, to get the just medium from all the evidence, the divisor above should be seventeen instead of ten, and the quotient between five and six hundred. And so it seems in this case, as well as others, that however strong the sympathies of a jury may he in relation to individuals, they never exhibit much for the treasury of a municipal corporation to which their taxes are not tributary.

Though the verdict in this case may seem to us a large one, we fear that it will always be so, in similar cases; and that, if there are always to be reversals in such cases when verdicts seem to too large, there will be few or no affirmances. The presence of the plaintiff is felt, and his inconvenience is made prominent. Those who do not sleep well of nights because they know not where to look for the means to pay their taxes are too far in the back ground to be visible.

Where, however, plaintiffs obtain too large verdicts, they must see to it that they are obtained according to law. It is the settled law of this State that a just verdict will survive a pressure of bad law, which will destroy an unjust one.

There are some unaccountable mistakes in the abstract in this case.

One 27. P. Thompson, who had been an alderman, was called as a witness for the plaintiff. On the cross-examination by the defendant’s counsel, the following question was asked: “ Was there any agreement between you and Eaton, or made by Eaton in your presence, in regard to this grade? ”

According to the abstract, an objection to this question was overruled, and exception taken. According to the record, this objection was sustained.

Eaton himself had testified, on cross-examination, without objection, that he had made an agreement in 1871, with a committee of the city council, of which committee Thompson was one, on a grade which would make about a two-foot cut at his front on Jackson street.

We do not perceive why, on the cross-examination of Thompson, it was not proper, under these circumstances, to ask Thompson this question, if for no other reason than to show what the feeling or bias of the witness may have been. It was important to know where his sympathies were, and to a reasonable extent to inquire into his conduct as a member of the committee. One Lynch testifies that there was an understanding' among the aldermen that Thompson was acting for Eaton.

O. H. Oollin, according to the abstracts, was called as a witness for the defenda/nt. According to the record, for the plaintiff.

On a cross-examination by appellant's counsel, not by appellees, this question was propounded to the witness:

“ You had a controversy with the city about grading in front of your lots, hadn’t you?”

Objection was made by appellee, which was sustained, and there was exception taken. This question ought to have been answered. “ A fellow feeling makes us wondrous kind,” and all lawyers fully appreciate how important it is to know whether a plaintiff and his witness are in the same boat.”

The refusal of the following instruction of the defendant below, was error.

■“ The jury are instructed that they should not allow any damage to the plaintiff for any injury done to his premises by the grading of Bridge and Jackson streets, before the 8th of August, A. D. 1870.”

For any injury before that time because of excavations near to, but not on the lots of appellee, there was no remedy. Quincy v. Jones, 76 Ill. 221.

Appellee himself testifies that - there was grading done on Jackson street in 1865 or 1867—he thinks 1865; that the grading in 1865 was about two feet on Jackson street; of that he is positive, because he laid his sidewalk then on Jackson street? and the sidewalk was about seven inches higher than the street, and about two feet below the sills of his house.

The portion of the injury thus caused in 1865, and which is included in, and forms part of that estimated by all plaintiff’s witnesses, should have been deducted, as the jury would have been directed, if this instruction had been given, not refused.

The challenge for cause, of the juror Guthbertson, and the motion to change the venue, were both, we think, properly overruled. The place of the supposed prejudiced judge was supplied by an unprejudiced one. We do not fully appreciate the position of appellant’s counsel, that the motive for swearing that the circuit judge was prejudiced, was to get a change of the place of the trial. If such were the motive, it adds a new one to the already too many other bad ones, for that kind of affidavit-making which have come to our notice. We are disposed to do the affidavit-maker the justice of believing that counsel are mistaken as to his motive.

For the errors heretofore mentioned, we think it just and proper that another jury should hear the evidence in the case.

Eeversed and remanded.


text:
    The President, etc. Town of Fairbury v. Charlotte C. Rogers.
    1. Municipal cokpobations—Construction op sidewalks.—It cannot be insisted that whenever a municipal corporation raises its sidewalk above the adjacent ground, that railings must be placed on each side of it, otherwise a liability may arise from a negligent construction. Nor is it allowable to determine that four feet is not a sufficient width in a sidewalk, to protect a municipality from the charge of negligence. The question of negligence in construction must in a great measure depend upon the particular circumstances of the case, and hence an assumption that a sidewalk only four feet wide is of itself a circumstantial act of negligence, is unwarrantable.
    2. Instruction as to negligence.—An instruction that the jury should consider the evidence of the witnesses who passed over the sidewalk at the same time with the plaintiff, upon the question of the darkness of the night, and their knowledge of the walk, and not upon the question of the negligence of either plaintiff or defendant, is erroneous. If numerous persons passed over the walk the night of the accident, without perceiving any difficulty in the passage, or danger of mishap, such fact would be a proper circumstance for the jury to consider in determining whether the plaintiff used ordinary care to escape the injury complained of.
    Appeal from the Oircu.it Court of Livingston county; the Hon. H. J. Pillsbuby, Judge, presiding.
    Hr. B. T. Pebby and Hr. S. S. Lawbence, for appellant;
    that it is the duty of a municipal corporation to see that its sidewalks are reasonably safe only, cited City of Rockford v. Hildebrand, 61 Ill. 155; City of Chicago v. McGiven, 78 Ill. 347.
    The evidence as to whether the sidewalk was reasonably safe, was proper and should have been admitted: City of Joliet v. Verley, 35 Ill. 58; Alexander v. Mt. Sterling, 71 Ill. 366.
    It must appear affirmatively that plaintiff was exercising due care for her personal safety: City of Mendota v. Fay, 1 Bradwell, 418.
    Where both plaintiff and defendant were negligent, it must appear that plaintiff’s negligence was comparatively slight, and that of defendant gross, to entitle the plaintiff to recover: Sterling Bridge Co. v. Pearl, 80 Ill. 251.
    Plaintiff cannot expose herself to danger and recover damages for an injury which she might have avoided by the exercise of reasonable precaution: Lovenguth v. Bloomington, 71 Ill. 238; C. & A. R. R. Co. v. Becker, 76 Ill. 25.
    Mr. L. E. Paysox, for appellee;
    contended that the question of safe construction of the sidewalk was for the jury, cited City of Chicago v. McGiven, 78 Ill. 347; City of Chicago v. Langlass, 66 Ill. 361; Alexander v. Mt. Sterling, 71 Ill. 366.
    It is the duty of a city to protect the public from such hazards-by erecting barriers: City of Chicago v. Gallagher, 44 Ill. 295.
    It was proper to restrict the effect of the evidence in this case by instruction: Rockford v. Hildebrand, 61 Ill. 155; Champaign v. Patterson, 50 Ill. 61.
    It was proper to instruct the jury that the fact that the walk in question was made wider and better by the defendant soon after the accident, is a circumstance tending to show how the village authorities regarded it: Chicago v. Powers, 42 Ill. 169.
   Sibley, P. J.

The declaration in this case contains but one count charging that 'the village of Fairbury was a corporation, and had within its limits sundry streets and alleys which it became its duty to keep in good and safe repair; that by the side of one of those streets a ditch had been dug to the depth of four feet, and the width of six. That the ditch ran at right angles with a crossing that had been constructed over it for foot passengers forty inches wide without any.guard or railing ■on either side to protect persons from falling off into the ditch, ■and that owing to such negligent and defective construction of the crossing, in the absence of any lamps to light up the way, the appellee during the darkness of the night, while using due «care, fell into the ditch and was injured.

There was considerable testimony on the trial of the case in the Circuit Court besides that of Mrs. Rogers, the plaintiff, who swore that in returning from church about nine or ten «o’clock in the evening on a cloudy and moonless night, being mnable to see anything, as she was feeling her way carefully .along the walk,' stepped off and fell into the excavation. She ;says that the darkness was so great that she could not see at :all, but supposed she had passed the ditch before she undertook to step off the walk. There were several persons imme-diately before and many that followed directly after her, all of •whom seem to have found no difficulty in seeing their way mpon the walk notwithstanding the obscurity of the night, which it is clearly proven was not as dark as she represented it. The jury, upon the testimony, found the defendant guilty, and assessed the plaintiff’s damages at $i,050. From the judgment entered upon that verdict, the town of Fairbury appealed to this court, and has assigned several errors • for reversing the action of the Circuit Court, the most of which we do not consider well taken. Whether the verdict is so contrary to the weight of evidence as alone to have required a new trial, we do not feel disposed to express a decided opinion.

Sin ce the judgment must be reversed for other reasons, and the cause submitted to another jury, it does not become necessary to pass upon that error assigned. Still, it may be remarked that the appellee in her declaration, and through the whole case, seems to assume an attitude that the construction of a plank walk over the ditch of four feet wide only (which is the width all the witnesses concur in stating) without any guards or railing at the sides, was, per se, an act of negligence on the part of the town.

It will hardly be insisted that whenever a municipal corporation raises its sidewalk above the adjacent ground, that railings must be placed upon each side of it; otherwise a liability may arise from a negligent construction.

Then if it is allowable to determine that four feet is not a sufficient width to protect a municipality against the charge of negligence, the inquiry may well arise, what width is requisite for these walks to be made in order to free the corporation from any liability on account of a defective construction? It is evident there must be some limit in width to render a construction unobjectionable. What that width shall be is a question not easily determined, and must, in a great measure, depend upon the particular circumstances of the case. Hence the assumption was an unwarrantable one that the construction of a walk four feet wide only was of itself a circumstantial act of negligence.

Airs. Rogers, it will be recollected, when she comes to testify upon the stand, does not pretend that the narrowness of the walk was the cause of the accident, but the erroneous supposition that she had passed the ditch, induced her to step from the pdank, when she was precipitated into the gutter, some three feet deep.

Upon a careful examination of the case, we are inclined to think that the first instruction given for the plaintiff in the court below, as follows:

1. “ The jury are instructed that they should only consider the evidence of witnesses on the question of their passage over the walk in question, on that night, in determining the darkness of the night, their knowledge of the walk, and not upon the question of either the negligence of plaintiff or defendant,” was calculated to mislead the jury, and should have been modified or refused. The jury may have understood it to mean that in considering the testimony of the witnesses who passed over the walk on the occasion' of the accident, they should disregard entirely the question of negligence on the part of either the plaintiff or defendant. This, certainly, the court could not have intended the jury to understand as the correct law of the case. If those persons who went over the walk at the time of the accident, found no obstacle in the way, either of darkness or otherwise, to prevent a safe passage, it would tend strongly to prove that the plaintiff failed to use ordinary care to avoid the accident. Hence, the evidence was pertinent to the question of negligence, as well as to the darkness of the night, and a knowledge of the walk by the witness or the plaintiff, who appears to have been acquainted with it for many years. If numerous persons were piassing over that structure on the occasion of the accident, without perceiving any difficulty in the passage, or danger of mishap occurring, would not such fact be a proper circumstance for the jury to consider in determining whether the appellee exercised ordinary care to escape the injury complained of? If, as was said in the case of C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 274, the fact that other persons previous to the one for which suit was brought, were injured by the mail catcher, “had the force of direct testimony .to produce conviction that it was placed in dangerous proximity to the railroad,” .the converse of that proposition must also be a correct rule to be guided by.

Thus, if many people passed along over that walk at the time of the accident, and no one received any injury on account of an imperfect construction, should the jury be told that they must not consider the circumstance as tending to prove negligence on the part of the plaintiff, or reasonable care exercised by the corporation in constructing the walk? Nor is it a sufficient answer to say that the language used in the instruction is susceptible of a different meaning.

For, as the Court says in the city of Freeport v. Isbell, 83 Ill. 440, “ an instruction should be so prepared as not to be of doubtful or uncertain meaning, otherwise the jury may be misled.”

This instruction being liable to the objection there pointed out, and the evidence in the case of such a character as to render the right of recovery against the corporation doubtful, we are of opinion that the case should be submitted to another jury. The judgment is therefore reversed and the cause remanded for a new trial.

Judgment reversed.

This case having been tried before Pillsbury, J., he took no part in the decision here.