text:
    Agnes Garry, Executrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,997.

      Negligence—what essential to recovery. In order to recover for personal injuries alleged to have resulted because of the defendant’s negligence, such negligence must be established by the plaintiff by a preponderance of the evidence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed June 3, 1910.
    John E. Kehoe and G. LeRoy Brown, for appellant.
    Hollett, Sauter & Henkel, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is an action on the case for a personal injury sustained by plaintiff, who fell off a street car going west on 61st street. Defendant is prosecuting this appeal to reverse the judgment rendered against it in a trial by jury.

A declaration of four counts was filed, but plaintiff discontinued as to the third and fourth counts. The cause of action stated in the first count is that plaintiff stepped upon the front platform of the car in question and became a passenger thereupon; that while he was in the exercise of all due care and caution for his own safety the car was “suddenly started and its speed and motion were suddenly and violently increased,” .whereby the “car was violently jerked” so that the plaintiff “was thereby jerked, jostled, overbalanced, knocked and thrown” from the car upon the ground in such manner that the car ran upon him and pushed and dragged him a considerable distance, by means whereof he was injured.

The cause of action stated in the second count is that plaintiff boarded and became a passenger on the car and that the appliances and mechanism of the car. were carelessly and negligently handled, managed and operated and the electric power carelessly and negligently applied rapidly, unevenly and suddenly and in such excessive quantities as to cause the car to be violently jerked and its speed and motion to be violently and suddenly increased, so that plaintiff, while in the exercise of all due care and caution for his own safety, was thereby jerked, jostled, overbalanced, knocked and thrown off the car upon the ground and thereby injured.

The testimony of the plaintiff is not clear and is very difficult to understand. In order to comprehend the theory of plaintiff himself as to the precise manner in which he was injured, that we might be able to determine what was the operating, proximate cause, we have not only read the abstract but we have also carefully examined the record.

Plaintiff was in the defendant’s employ driving a wrecking wagon but, when injured, he was not on duty. He had been having a vacation and it was his intention to return to his work the evening of the day he was injured. His hours of work were from six in the evening until seven in the morning.

As we understand plaintiff, his direct testimony is that he was forty-nine years of age; that on the morning of December 3, 1906, having been out to purchase meat, at about 8 o ’clock in the morning, he was at the northwest corner of Morgan and 69th streets on his way to his home at 6809 Throop street; that he desired to take a west-bound car on 69th street and signalled the second car that came; that the car stopped and he stepped on at the front end; that he had purchased two packages of meat which he carried under his left arm; that before he stepped on, a man stepped off the car at the front end; that just as he was getting on and had one foot on the step and the other on the platform, the bell rang for the car to go ahead and it went ahead; that he had a hold of the grab-handle, on the front of the vestibule of the car, with his right hand; that, “when I was getting right up on there, there was a man standing somewhere in the door, or around the door, I don’t know where;” that the motorman threw the controller handle around and put the power on which “jerked” the man standing so “he caught me some way and that overbalanced me and made me swing out;” that he was not still trying to get on, but was then on, that the jerk of the car threw the man standing up against him and forced him out while he was holding the grab-handle with his right hand; that he then swung around with his foot upon the eye-ring on the front corner of the car, to which the brake chain is hooked; that then “my arm here was swinging against the edge of the dash-board of the car, and I could not hold on, and I told” the motorman to stop; that he had to let go and fell with his head first below the step or corner of the car and was caught in there and became unconscious; that from the time the car started when this man “bumped” against him the car ran 225 feet to a feed store, west of the alley, before he dropped; that the car ran 30 or 40 feet, after the jerk; that it ran 30 feet after he called out to the motorman to stop; that his best recollection is that the car ran ,20 feet after he fell under it; that he first recovered consciousness about noon, when he was in the hospital; .that he knew the motorman whose name was Frank Hake, whom he called Hank; and that during the morning before he was injured he had had nothing to drink and had not been in any saloon.

Upon cross-examination he testified: That the distance from Throop street to Morgan street is about a quarter of a mile; that when he left home he walked east on the north side of 69th street and in going east stopped in no place other than the butcher-shop; that after he had obtained his meat he saw the keeper of the saloon, whom he knew, at the northwest corner of Morgan and 69th streets, standing in the saloon door;. that he went into the saloon and had one drink “a little whiskey—a little bit of whiskey; ’ ’ that he stopped in no other saloon that morning; that he had just put his second foot up on the platform when he was pushed—“I had hold of the grab-handle and was just putting it up;” that he did not then have both feet on the platform; that his right foot was on the step and he was just about to put the other up when “this jerk” . overbalanced him; that there was another person standing up against the body of the car south of the door-in “south corner” of the platform; that he had no difficulty in getting up the step and upon the platform of the.car; that the jerk occurred just as the car started; that he was standing “right by the side” of the motorman when he turned on his lever; that there were three men on the platform, including the motorman and excluding himself,1 when he got on; that the car started enough “to throw this gentleman up against me to swing me around; ’ ’ that he then held on with his right hand and held the meat under his left arm; that the eye-ring upon which he had his foot was on the corner of the bumper of the car, straight down from the hand-hold on a level with the top of the step.

Two other witnesses testified for the plaintiff: as to the occurrence. One, Mr. Napheys, testified that he sat on the north side of the car inside; that two ladies sat opposite him; that according to his recollection there was only one man besides the motorman on the front platform when plaintiff came on the car and that man stood to the left, on the other side of the door from plaintiff; that the first thing that attracted his attention to the accident was the agitation of the two ladies. On cross-examination this witness testified that he remembered the stopping of the car at Morgan street and plaintiff’s getting upon the car; that he saw plaintiff standing on the front platform and that he stood to the right of the motorman; that the car started in the usual way and, according to his recollection, there was no jerking or surging of the car and that he did not see how plaintiff fell off. The other witness to the occurrence on behalf of plaintiff saw very little of it and testified to nothing material.

On behalf of defendant the conductor on the car in question was called. He testified that he knew Garry, the plaintiff; that, without then knowing who it was, he first saw plaintiff, through the window of the car, getting up on the front platform; that he “gave the bell” and the car started easily as usual without any jerking or jarring; that, with reference to Garry’s falling, he noticed when Garry got on the car and he appeared to speak to the motorman and while doing so “he [Garry] went to step back, as though he was going to put his back up against the car * * * . Just as he did that, why off he went—off that quick (indicating) * * * . It was all done right quick.” The motorman testified that as the car came to Morgan street he “received no bell” to stop the car and no one got off the car but he saw Garry, whom he knew, standing there and stopped the car with the rear platform as near the cross-walk as possible; that in getting on the car “he came up to the car, and he had some packages in his left hand, and he took hold with his right hand, and when he lifted his foot he kind of staggered back and his hand let go again. I was standing there waiting for him to get on. Then he took hold again. That, time he got on np onto the car—np onto the platform ; ’ ’ that ‘ ‘ He says, ‘ Hello Hank, ’ he called me Hank instead of Hake, I said, ‘Hello Garry,’ and he says, ‘The car ahead didn’t stop.’ I said, ‘I noticed it didn’t;’ ” that “then he went to step in against the end of the car, apparently, and he stepped off the step and down he went right down on the ground—the side of the step;” that “when the car started Garry was up on the platform by my side and he had both feet on the platform;” that the car started up in the usual way, easily, without any jerk, or jarring or surging of the car and there was no jerk, jar or surging of the car up to the time he fell; that up to the time he stepped back, during that conversation, the car had travel-led about eighty or a hundred feet; that when he fell Garry kept hold of the handle bar and “went down kind of along the edge of the step;” that the car was stopped in a distance of twenty-five feet from the point where he made the misstep and when the car had stopped Garry was at the first journal-box from the front.

A witness, called on behalf of defendant, testified, in contradiction of Garry, that he was with Garry the morning the latter was injured and that the latter was in two saloons, while witness was with him and before he obtained the meat, and drank two “schnit” of beer. There is, also, a conflict of evidence as to whether Garry was under the influence of liquor.

That Garry was “bumped” against, “overbalanced” or jostled by any person so as to occasion his falling is inconsistent with the testimony of every witness who testified on the subject, other than himself, and his testimony in that respect must be regarded as wholly disproved. In many respects his testimony, as to what occurred in connection with the fall, is clearly disproved by a clear preponderance of the evidence.

We think the plaintiff totally failed to establish by a preponderance of the evidence Ms case as presented in either the first or the second count and as testified to by him. No negligence on the part of the defendant appears to have been proven. The judgment must be reversed and the case will not be remanded.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Margaret C. Vaughan v. Lucy O. Cowles. George F. Leinbrandt, Appellant, v. Illinois Trust & Savings Bank, Receiver, Appellee.
    Gen. No. 15,005.
    Judicial sales—when purchaser not entitled to rents. A purchaser at a judicial sale is not entitled to the rents accruing from the premises purchased until full payment of the purchase price by him and confirmation of the sale by the court.
    Intervening petition. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Statement by the Court. At a sale of real estate by a master in chancery, under a decree in a partition suit, appellant bid in certain real estate, on April 17, 1906. He was not a party to the suit. Two separate-pieces of the real estate sold were bid in by him at an aggregate price of $6,000 and with his bid he made a deposit of $600. The master made a report of the sale- and on May 22, following, the court confirmed the sale.. Appellant paid the unpaid portion of his bid, $5,400,, to the master on June 1, 1906, and then received his deed of the premises from the master.
    It appears that the real estate appellant bought had" yielded rents aggregating $123 for the period of time-beginning April 17, 1906, and ending May 30, 1906.. This rent was collected by appellee .as receiver of the-real estate in charge thereof, under appointment in the partition proceedings. Appellant filed an inter-veiling petition for an order upon the receiver to pay appellant the rent collected for the premises in question for the period between April 17,1906, and May 30, 1906. The chancellor denied and dismissed the petition on March 9, 1908. Hence this appeal
    Edward J. Kelley, for appellant.
    Tenney, Coppeen, Harding & Sherman, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

We think the chancellor did not err in denying and dismissing the petition. There was neither a legal right nor equity in the case made thereby. The appellant was not entitled to the possession of the premises until the master’s sale was confirmed by the chan- ' cellor and full payment, according to the terms of the sale, had been made by appellant. The sale and purchase of the land was not complete until the confirmation and payment. Until there had been a final confirmation and tender of payment appellant was not entitled to a deed. A judicial sale subject to confirmation is open until confirmation is had. The deed could not relate back to the time when appellant made his hid because appellant did not then become entitled to the property.

Of course, by the decree of sale other and different terms of sale could have been provided for. The order of the chancellor is affirmed.

'Affirmed.


text:
    Lakeside Fish & Oyster Company, Defendant in Error v. Mutual Fish Company, Plaintiff in Error.
    Gen. No. 16,145.
    Municipal Court—when till of exceptions stricken. A bill of exceptions not presented and filed within sixty days after judgment or within such further time as may have been provided for within such sixty days, will be stricken from the record.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 3, 1910.
    Kaplan & Kaplan, for plaintiff in error.
    Stein, Mayer & Stein, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is a writ of error sued out of this court to procure the reversal of a judgment rendered in a case of the first class in the Municipal Court of Chicago. Defendant in error has presented a motion that the hill of exceptions brought up in the record be stricken. The motion is based upon the ground that the bill of exceptions was tendered after the expiration of the period of time, subsequent to the rendition of the judgment, during which bills of exception must, in that court, be tendered to the judge, according to the statute under which the Municipal Court exists and exercises its powers.

Section 38 of the Municipal Court Act, chapter 37, Revised Statutes, provides that in cases of the first class in the Municipal Court a bill of exceptions maybe tendered to the judge at any time within sixty days after the entry of judgment or within such further time thereafter as the court, upon application made therefor within such sixty days, may allow. The judgment was entered on July 16, 1909. The sixty days allowed by the statute expired on September 14, 1909. On September 9, 1909, within the sixty days, the Municipal Court, upon application, allowed an extension of time to September 25, 1909. The bill of exceptions was not tendered, however, until October 1,1909, when it was signed and filed. This was after the expiration of the period within which, according to the language of the statute, it was permissible to present a bill of exceptions. True, the Municipal Court, on September 22, 1909, allowed an extension of time to October 4, 1909. This second extension, however, was allowed after the expiration of the sixty day period, fixed by the statute, during which application for and allowance of further time might be made, and this extension had, therefore, no warrant in the law by which the court was created and through which alone the court derives the powers it exercises and, consequently, this extension was a nullity. The Municipal Court is not an inferior court in the common law sense of the term. It is a court of record of a limited specified jurisdiction ; but, while it is a court of record, it is none the less a special statutory court. The statute is the sole source of its power. In respect to the practice and procedure therein, it can rightfully exercise only such powers, and these within such time, as the statute creating it authorizes. Bills of exceptions in that court, as well as statements of facts in its fourth class cases, are creations of the statute. Without any statutory provision for bills of exceptions such documents would, in that court, have no existence, any more than would appeals or writs of error from its decisions if none were provided for. As the court is a creature of the statute, the statute—and the statute alone—prescribes not only the practice and procedure therein but appeals therefrom and the manner in which its records shall be made up for review.

The question here presented would have been an entirely different one had it arisen in connection with a record from one of the circuit courts of the state or the Superior Court of Cook county. The circuit courts and the superior court exist under and derive their powers-directly from the constitution, while the Municipal Court of Chicago is a court authorized by the constitution and created by a statutory enactment. The constitution provides that the circuit courts shall have original jurisdiction of all causes in law and equity and that instrument has placed the superior court on the same level with the circuit courts. " It was early held (Beaubien v. Brinckerhoff, 2 Scam. 270, 274) that the circuit courts exercise all the powers and jurisdiction of the courts of king’s bench and common pleas in England. It is not from any statute of this state that the circuit courts derive their powers respecting bills of exception and the practice in those courts is not regulated nor is the period of time within which bills of exception in those courts shall be presented or settled limited by any such statute. According to the constitutional provision which authorizes its existence, the contrary is true of the Municipal Court. Inherently the Municipal Court has no power to act in respect to bills of exception after the expiration of the time limitation imposed by the statute.

Moreover since this motion to strike the bill of exceptions was presented the Supreme Court, in Lassers v. The North-German Lloyd Steamship Company, 244 Ill. 570, which affirms an opinion rendered by the main branch of this court (150 Ill. App. 273), has disposed of the question here involved beyond further discussion. That case was a fourth class case in the Municipal Court. As to fourth class cases paragraph 6 of section 23 of the Municipal Court act provides that within thirty days after the entering of judgment “or within such further time as may, upon application therefor within said thirty days, be allowed by the court” a correct statement of the facts or a stenographic report of the proceedings shall be signed and placed on file. In the Lassers case a stenographic report was filed, but neither within the thirty days fixed by the statute nor within the further time allowed by the court within those thirty days. The Municipal Court allowed ,a second extension within the further time the court first allowed, but after the expiration of the statutory thirty days. Within that second extension the stenographic report was filed. ■ The stenographic report was ■stricken from the record by the Appellate Court because the Municipal Court was without power to grant the second extension of time and because the report was filed after the expiration of the first extension. This action of the Appellate Court the Supreme Court affirmed. Upon principle that decision is decisive of the question now before us.

The motion to strike from the record the bill of exceptions is allowed.

Upon an inspection of the assignment of errors it appears that the errors assigned are all of such nature as to require a bill of exceptions for consideration thereof. The bill being now stricken, nothing remains upon which a reversal of the judgment of the Municipal Court can possibly be predicated.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Christian Schmalfeld, Administrator, Appellee, v. Peoria & Eastern Railway Company, Appellant.
    1. NegligenCE-^what essential to recover for death caused by wrongful act. In actions to recover for death caused by wrongful act it is necessary to aver and prove three elements: (1) the existence of a duty on the part of the defendant to protect the deceased from the injury which resulted in his death; (2) the failure of the defendant to perform such duty; (3) the death of the deceased resulting from such failure.
    2. Negligenc^r-7-right of citizens to rely upon observance of speed ordinance. A person approaching a railroad crossing for the purpose of passing over the same is entitled to assume that the railroad company in running its trains over such crossing will observe the ordinances of the municipality with respect to speed.
    3. Pleading—effect of defective count after verdict. If one count of a declaration is sufficient, the fact that other counts contained in the declaration do not state causes of action is immaterial where the verdict in an action on the case is entire.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Rehearing denied. Opinion modified May 26, 1910.

      George B. Gillespie, for appellant; L. J. Hackney, J. P. Lindsay and Hamlin, Gillespie & Fitzgerald, of counsel.
    S. P. Robinson and Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action on the case by Christian Schmalfeld, as administrator of the estate of Mary Schmalfeld, deceased, against the Peoria & Eastern Railway Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the Cleveland, Cincinnati, Chicago & St. Louis Railway, the alleged lessee of the defendant. . Hpon a trial by jury in the circuit court of McLean county there was a verdict and judgment against the defendant for $1,000, from which judgment the defendant prosecutes this appeal. The declaration contains five counts. The first and second counts allege the negligent operation generally by the servants of said lessee railroad company of its engines and train of cars whereby plaintiff’s intestate, while in the exercise of due care for her own safety in attempting to cross defendant’s right of way on Allin street, in the city of Bloomington, was struck by said engine and cars. The third count alleges that the train -of defendant’s lessee was being operated at a greater rate of speed than ten miles an hour contrary to the provisions of an ordinance of the city of Bloomington, and that plaintiff’s intestate while in the exercise of due care for her own safety was struck by said train as aforesaid, at said street crossing, and killed. The fourth coimt alleges the existence of an ordinance of the city of Bloomington requiring defendant’s said lessee to place and keep a gate at Allin street in said city, and requiring the same to be in operation on every day of the week from seven o’clock in the morning until seven o’clock in the evening, and alleges that defendant’s said lessee had installed such a gate, and that plaintiff’s intestate, while the said gates were open so as to invite people to cross the said railway, and while in the exercise of due care for her own safety, and while attempting to walk across said railway, was struck by said engines and train and was thereby then and there greatly injured, and died in consequence of such injuries. The fifth or amended additional count alleges that while plaintiff’s intestate was attempting to cross said railroad she slipped and fell down upon said railroad and then and there became helpless and unable to get up and off said railroad at a time when said train of cars was at sufficient distance away to have enabled the servants of the defendant’s said lessee to have seen her in a position of peril, and to have stopped the train, if said servants had been maintaining a proper and suitable lookout to avoid injuring pedestrians in crossing said railroad; that it was the duty of the servants of the defendant’s said lessee as aforesaid, to stop their said engine and train of cars before their arrival at the place where plaintiff’s intestate was upon said railroad, but that the said servants of the defendant’s lessee, as aforesaid, then and there negligently and carelessly ran said train upon and against her and struck and killed her. To this declaration the defendant pleaded the general issue and a further plea denying that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company was the lessee of the defendant and the owner of the engines, train of cars, etc., as charged in the declaration. A trial of the cause in the circuit court of McLean county resulted in a verdict and judgment against the defendant for $1000, to reverse which judgment the defendant prosecutes this appeal.

Front and Grove streets in the city of Bloomington run east and west and Allin street runs north and south connecting said east and west streets. The tracks of the Peoria & Eastern Railway and the Lake Erie & Western Railway, which are nineteen feet apart from center to center, extend in an easterly direction to Front street and thence in a southeasterly direction, crossing Allin and Grove streets at grade. A street car track is located in the center of Allin street and crosses the track of the defendant at a point 120 feet south of Front street. The track of the Lake Erie & Western Railroad is located north of defendant’s track. From the intersection, of defendant’s track with the street car track northwesterly to Front street the distance is 210 feet, and about midway between said points, or to be exact 114¿ feet northwest of the point of intersection of said tracks, there is located on the north side of the Lake Erie & Western track a tower house where a tower man is stationed to operate gates at street crossings. Gates were constructed and maintained on the south side of defendant’s track and on the north side of the track of the Lake Erie & Western Eailway, where said tracks intersected Allin street in obedience to the provisions of an ordinance of the city of Bloomington for the purpose of protecting persons traveling upon said street and upon the sidewalks, from danger of approaching trains. By an ordinance of said city the speed of passenger trains running upon the track of the defendant railroad, within the corporate limits of said city, was limited to ten miles an hour. At the time in question the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company was operating its trains upon the railroad of defendant, as lessee, and the engine which struck and killed plaintiff’s intestate was then owned and operated by said lessee railway company. On February 20, 1908, at about 2 o’clock in the afternoon, Christian Schmalfeld, aged about 71 years, and Mary Schmalfeld, his wife, aged about 67 years, walked south on Allin street using the street car track which had been cleaned of snow, rather than the sidewalk which was covered by a recent heavy fall of snow. When they reached the track of the Lake Erie & Western Eailroad the evidence, while conflicting, tends to show and the jury were warranted in finding that the crossing gates were not lowered and the automatic alarm gongs were not sounding. As they went on to the last mentioned tracks and proceeded southward toward the track of the defendant company .the plaintiff was walking somewhat in advance of his wife, and when the latter reached the track of the defendant company she fell, and almost immediately thereafter, while plaintiff was attempting to assist her in arising or to lift her from the track they were both struck by an engine, which, together with another engine was hauling a passenger train owned and operated by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. The train was from fifteen to twenty-five minutes behind schedule time, and was approaching from the northwest on a down grade. While the evidence as to the speed of the train is conflicting, we are of the opinion that the jury were justified in finding that the train was then running at a speed of from twenty-five to thirty miles an hour. The striking of the plaintiff and his wife by the front engine resulted in injuring the plaintiff and in causing the death of his wife. The evidence tends to show that the engine whistled when it left the Union Station a distance of about half a mile west and north of the Allin street crossing, and again as it approached the crossing at Howard street, being the next street west of Allin street, and that several sharp, shrill blasts of the whistle, designated danger signals, were sounded after the train crossed Front street and as it approached Allin street.

It is first insisted on behalf of defendant that a verdict should have been directed in its favor because the evidence fails to show that the deceased was killed as the proximate result of any negligence charged in the declaration, and that such evidence does not sustain the negligence alleged in the declaration. What we have heretofore said with reference to the state of the proof as to the speed of the train and the failure of defendant’s lessee to lower the gates as said train approached the Allin street crossing disposes of the claim that the evidence fails to sustain the negligence of defendant’s lessee as alleged in the third and fourth counts of the declaration. True it is, as claimed on behalf of the defendant that in order to sustain a recovery in actions of the character here involved it is necessary to aver and prove three elements: (1) existence of a duty on the part of the defendant to protect the deceased from the injury which resulted in his death; (2) the failure of the defendant to perform such duty; (3) the death of the deceased resulting from such failure. McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232. It is further held in that case that the absence of any one of these elements either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence even after verdict. As we understand defendant’s contention it is that in neither of the counts of plaintiff’s declaration is the negligence charged alleged to have been the proximate cause of the death of plaintiff’s intestate. In the first and second counts of the declaration wherein defendant’s lessee is charged with general negligence in the operation of its engines and trains it is specifically alleged that plaintiff’s intestate “was then and there by the cause” (negligence) “aforesaid struck,” etc. In the third count, after alleging the existence of the speed ordinance of the city of Blooming-ton, and the violation by defendant’s lessee of such ordinance, it is charged that said passenger train then and there struck the deceased with great force and violence and by reason of being struck by said passenger train “os aforesaid’’ the deceased was thereby injured, etc. We are of opinion that the words “as aforesaid,” in the sense in which they are employed in the declaration, refer to the alleged negligence of defendant’s lessee, in exceeding the speed limit fixed by the ordinance, as being the proximate cause of the injury.

In the respect mentioned the third count of the declaration is not fairly abstracted and a resort to the record was made necessary in order to discover the words which cure the alleged error. In the fourth count of the declaration we find no equivalent words charging the alleged negligence of defendant’s lessee in failing to operate the gates as being the proximate cause of the death of plaintiff’s intestate, and a judgment based upon proof of the negligence alleged in said count could not be sustained even after verdict. The fifth or amended additional count expressly charges the negligence therein alleged to have been the proximate cause of the death of plaintiff’s intestate. Conceding that plaintiff established no right of recovery under the first, second and fifth counts of the declaration, that the fourth count of the declaration was so defective as that judgment thereon against the defendant could not be sustained even after verdict, there was sufficient evidence introduced on behalf of the plaintiff to warrant a recovery under the third count, of the declaration and defendant’s motion for a peremptory instruction was properly denied. As the verdict in this case was entire and the third count in the declaration is sufficient to sustain such verdict, the same may not be set aside or reversed on the ground of a defective count in the declaration. Rev. Stat. 1908, page 1630, section 57, chapter 110.

The contention of defendant that the plaintiff and his wife saw the train approaching when they were upon the track of the Lake Erie & Western Railroad is not supported by the record. The plaintiff testified that when he reached the track of said railroad he looked east and west for an approaching train but saw none, no witness testifies to the contrary and no facts and circumstances tending to contradict the plaintiff are apparent in the record. There is evidence tending to show that when the plaintiff and his wife reached a point about midway between the track of the defendant and the track of the Lake Erie & Western Railroad they might have observed the train as it turned at or about Front street in a southeasterly direction toward the Allin street crossing, a distance of about 370 feet. There is evidence tending to show that when the plaintiff reached the track of the Lake Erie & Western Railroad he heard the engine whistle for the Howard street crossing, and the evidence tends to show that such signal was given as the train approached said crossing, but that subsequent thereto the whistle was not again sounded until the engine reached a point on the track about opposite the tower-house when the danger signals were sounded. The deceased had a right to rely upon the observance by defendant’s lessee of the provisions of the speed ordinance and the jury were fully justified in finding that if such ordinance had been complied with the deceased would have crossed the track in safety. The violation by defendant’s lessee of the provisions of the speed ordinance was properly found to be the proximate cause of the death of plaintiff’s intestate, unless it appears from the manifest weight of the evidence that want of due care upon her part contributed to her death, and upon the evidence in this record ive are not justified in so holding, but must hold the verdict to be conclusive upon such issue.

The sixth and ninth instructions given at the instance of plaintiff are complained of. The giving of like instructions has been so frequently held not to constitute reversible error that a reiteration of the rule has become wearisome.

It is complained that the court erred in refusing the 7th, 8th, 9th, 11th, 12th, 13th, 15th, 16th, 18th, 19th, 20th, 22nd, 25th, 26th and 27th instructions offered on behalf of the defendant. To analyze and consider each of these refused instructions would serve-no useful purpose, and would extend this opinion beyond all reasonable bounds. Altogether too many instructions were tendered to the court on behalf of the defendant, sixteen of which so tendered were given to the jury, and the instructions so given covered every issue involved. A careful examination of the refused instructions discloses that while two or three might have been given with propriety, the remainder were subject to criticism as assuming facts not based on the evidence, as infringing on the province of the jury, as giving undue prominence to particular facts and circumstances in the case, as being argumentative, and as being merely repetitions of others offered.

We find no reversible error in the record and the judgment of the circuit court will be affirmed.

Affirmed.


author: Per Curiam.

text:
    Arizona Breezley, Appellee, v. Little Vermilion Coal Company, Appellant.
    Appeals and errors—failure of appellee to file brief. A pro forma reversal and remandment will be entered if the appellee fails to file a brief, as provided by the rules of the third district.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Cbaiq, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    H. M. Steely, for appellant.
    No appearance for appellee.
   Per Curiam.

The plaintiff recovered a verdict and judgment against the defendant in the circuit court of Vermilion county for $2500, as damages alleged to have been sustained by the wilful failure of the defendant to comply with certain provisions of the Mines and Miners Act, whereby the husband of the plaintiff was killed by a fall of rock from the roof of his working place. From such judgment the defendant prosecutes this appeal, and has filed an abstract of the record and its brief as required by the rules of this court. Fío brief has been filed by the plaintiff, and as the questions presented by the assignment of errors do not justify us in attempting to sustain the judgment, unassisted by a brief on her behalf, the judgment will be reversed pro forma, and the cause remanded for another trial as provided by rule 29 of this court.

Reversed and remanded.


author: Hr. Presiding Justice Baume

text:
    Alice B. Barry, Appellee, v. The Chicago, Indianapolis & St. Louis Short Line Railway Company, Appellant.
    1. Covenants—how questions of construction determined. Whether a covenant contained in a deed which provides for the construction and maintenance of a culvert or cattle-pass, runs with the land, is to be determined by ascertaining the intention of the parties which is to be arrived at upon a consideration not alone of the language employed but of the facts and circumstances constituting the situation with reference to which such language was employed, and parol evidence is competent for the purpose of disclosing such situation.
    2. Covenants—when parol evidence incompetent. Parol evidence under the guise of showing the consideration is incompetent to vary or add to the terms of a deed containing a covenant.
    3. Baieroads—when deed imposes obligation to maintain cattle-guards. Held, that the deed containing a covenant to erect and maintain a culvert or cattle-pass imposed a continuing obligation upon the railroad, and such convenant ran with the land.
    4. Damages—when incompetent evidence will not reverse. The admission of incompetent evidence upon the question of damages will not reverse if the amount of the verdict is amply sustained by competent evidence.

      Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and Jett & Kinder, of counsel.
    Amos Hiller and Lane & Cooper, for appellee.
   Hr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit by Alice B. Barry against The Chicago, Indianapolis and St. Louis Short Line Railway Company, to recover damages alleged to have been occasioned by the failure of the defendant to construct and maintain upon its right of way over and across the land of the plaintiff, a culvert of iron pipe six feet in diameter, in pursuance of an alleged covenant therefor contained in the deed executed by the plaintiff for such right of way. A trial of the cause in the circuit court of Hontgomery county resulted in a verdict and judgment against the defendant for $800 and this appeal is prosecuted by it to reverse such judgment.

On February 13, 1903, the plaintiff together with her husband, for the expressed consideration of $1300, conveyed by warranty deed to John C. Davie, a strip of land, 150 feet wide, being 75 feet on each side of a certain location line of the defendant railway company, therein described, and also another strip of land 100 feet wide being 50 feet on each side of said location line, all in section 23, town 8 north, range 4 west, in Hontgomery county, Illinois. After a particular description of the land so conveyed there appears in said deed, an exception, as follows: “Goal rights reserved. Culvert at survey station 200 X 00 to be of iron pipe 6 feet diameter. A farm crossing to be established by the grantee east of the public road. Grantors to have right to maintain a-telephone crossing. Grantee to establish wing fences and cattle guards on said farm crossing. Grantors to establish gates on said farm crossing when they consider them necessary.”

On May 26, 1906, the said John 0. Davie, for the expressed consideration of $1 conveyed by warranty deed- the same premises to the defendant railway company, which deed contains the following: “This conveyance is nevertheless made subject to the reservation of coal rights and right to maintain a telephone crossing and subject to the stipulations concerning farm crossings, wing fences, cattle guards, and gates as set forth in said deed from Alice B. Barry and husband.”

The declaration alleges that the consideration for the deed from plaintiff to Davie was the sum of $1300 then and there paid by the defendant in cash, and further that when said defendant would build its railroad over and across her land it would build and maintain a culvert at survey station 200 X 00 to be of iron pipe 6 feet in diameter under and through the embankment of said railroad at said point, to permit cattle, horses and other live stock to pass across said railroad embankment through said iron pipe, and also to establish and maintain a farm crossing east of the public road over said right of way on the land of the plaintiff; that by the direction and request of the defendant one John O. Davie was named as grantee in said deed and said deed was delivered to the defendant; that, thereafter, in the same" year, the defendant took possession of said right of way and constructed its railroad thereon, and has ever since maintained and operated the same, whereby it became and was liable to fulfill and perform the covenants in said deed contained respecting the construction and maintenance of said culvert and farm crossing, and that although requested so to do the defendant has failed and refused to perform said covenants, to the damage of the plaintiff, etc.

It is first urged that the declaration fails to state a cause of action because the damages sought to be recovered arise out of the alleged breach of a covenant in a sealed instrument, to which instrument the defendant was not a party, and because it appears from the deed therein set out that neither the defendant nor the grantee in said deed covenanted to maintain the culvert or cattle pass therein mentioned. The determination of the question thus presented involves a construction of the alleged covenant, and whether or not such covenant shall he held to be one running with the land. The construction to be placed upon the alleged covenant presents a question of law for the court, and such construction so as to effectuate the intention of the parties is to be arrived at upon a consideration not alone of the language employed, but of the facts and circumstances constituting the situation with reference to which such language was employed, and parol evidence is competent for the purpose of disclosing such situation. Gage v. Cameron, 212 Ill. 146. It appears from the competent parol evidence in the record that at the time of the conveyance in question the plaintiff owned and operated a farm consisting of 320 acres, and that the land conveyed by plaintiff to defendant’s grantor aggregated about 19 acres within the boundaries of said farm; that the said strip containing about 19 acres extended over and across a tract of 100 acres, then used by the plaintiff as a pasture, and whereby the same was divided so that 35 acres was on the east side of said strip of land and 65 acres was on the west side thereof; that the construction of defendant’s railroad on said strip of land necessarily involved the construction of an earth embankment about 25 feet high; that in the absence of a passage-way through said embankment the only means of access from one portion of the pasture to another was by the public highway; that the pasture on the east side of said strip of land was without any water for stock while the pasture on the west side of said strip was provided with water from springs. The evidence further discloses that a culvert having a diameter of two feet extending through defendant’s railroad embankment was amply sufficient to afford an adequate drainage of plaintiff’s land; that the defendant constructed its embankment on said right of way within a few months after the conveyance of the same by plaintiff to Davie, and about three years prior to'the conveyance of the same by Davie to the defendant; that when the defendant constructed said embankment it caused to be placed therein an iron pipe six feet in diameter at the location designated in the deed and shortly thereafter, when the defendant operated its trains over said embankment, the weight of the embankment together with the operation of trains thereon, crushed said iron pipe so that its diameter at its east and west ends was about 5-|- feet, and its diameter at its center was 4|* feet.

Much confusion exists as to the proper statement of the rule whereby a covenant is to be construed as one running with the land, and also as to the particular facts necessary to be shown for the application of such rule. In Dorsey v. St. L. A. & T. H. R. R. Co., 58 Ill. 65, it was said: “A covenant is said to run with the lánd when either the liability for its performance or the right to enforce it, passes to the assignee of the land itself.” In Wiggins Ferry Co. v. O. & M. Ry. Co., 94 Ill. 83, the court quoted with approval a portion of the text from Taylor on Landlord and Tenant, as follows: “In order that a covenant may run with the land, its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment. It must not only concern the land, but there must be a privity of estate between the contracting parties,—for if a party covenant with a stranger to pay a certain rent, in consideration of a benefit to be derived under a third person, it cannot run with the land, not being made with the person having the legal estate.” In the same case the court gave its assent to a statement of the rule, as follows: “Whether a covenant will or will not run with the land does not, however, so much depend on whether it is to be performed on the land itself, as whether it tends directly or necessarily to enhance its value, or render it more beneficial and convenient to those by whom it is owned or occupied.” In Gibson v. Holden, 115 Ill. 199, and L. & N. R. R. Co. v. I. C. R. R. Co., 174 Ill. 448, the like form of expression was sanctioned by the court, as was also the statement that in cases falling within such rule every successive assignee of the land will he entitled to enforce the covenant.

The evidence discloses that Davie who was named as grantee in the deed from plaintiff was a mere vehicle for the conveyance of the land to the defendant; that such conveyance was in fact made for the use and benefit of the defendant and at its request; that the defendant paid to the plaintiff the consideration named in said deed, and took possession of the land therein described with full knowledge of the restrictive provisions and covenants in said deed contained. The possession in the first instance by defendant of the land conveyed by plaintiff to Davie was referable solely to such conveyance. If the covenant in question be held to be one running with the land the plaintiff, in our opinion, would be entitled to enforce the same against any subsequent grantee notwithstanding the absence in the covenant of a provision binding the assignees of the covenantor. The covenant, if it should be held to impose a continuing duty upon the defendant, relates to the interest or estate of plaintiff in lands of which the strip conveyed formed a part, and the covenant to construct the culvert through the strip conveyed was clearly intended to, and in fact would, beneficially affect the value and mode of enjoyment of the remaining land of the plaintiff. The language of the particular covenant here involved, viz: “Culvert at survey station 200 X 00 to be of iron pipe 6 feet diameter,” taken in connection with the facts and circumstances constituting the situation with reference to which such covenant was entered into, necessarily implies a duty on the part of the covenantor to maintain a culvert of the character and dimension indicated thereby. The words “to be of iron pipe 6 feet diameter,” are not only descriptive of the character and dimension of the culvert when constructed, but in the absence of any limitation, they must be held to impose a continuing duty on the part of the covenantor to maintain a culvert of iron pipe 6 feet in diameter. To hold otherwise would render the covenant wholly ineffectual to serve the purpose intended by the parties. The plaintiff was a party to the deed as grantor and covenantee, but if she had not been a party thereto and merely one for whose benefit the covenant was made, she would be entitled to bring an action in assumpsit in her own name for a breach of such covenant, notwithstanding the instrument which created the covenant was under seal. Webster v. Fleming, 178 Ill. 140. The declaration is sufficient to support the action and the trial court did not err in refusing to give the peremptory instruction requested by defendant.

It is further urged that the trial court erroneously admitted evidence offered on behalf of the plaintiff of conversations between the plaintiff and her husband and one Duane, the chief engineer of construction in the employ of the defendant, to the effect that the plaintiff should use the culvert as a cattle pass and that the same should be maintained by the defendant as such, which conversations were had prior to the execution and delivery of the deed from plaintiff to Davie. This evidence was offered and admitted upon the theory that such parol agreement by Duane was a part of the consideration moving from the defendant to the plaintiff for the conveyance of the right of way, and plaintiff relies upon the rule announced in Lloyd v. Sandusky, 203 Ill. 621, to sustain the competency of such evidence, and the ruling of the trial court in admitting the same. In the case cited it was held that the statements in a deed of the amount and the receipt of the consideration are formal recitals, the legal operation of which is to prevent a resulting trust, and they may be explained, varied or contradicted by parol evidence, but it was there further held that such evidence was inadmissible for the purpose of affecting the terms of the deed. The evidence admitted in the case at bar did not apply to the consideration alone, but was directed specifically to the terms of the deed, and was therefore inadmissible. The error in this regard, however, could not have operated to the prejudice of the defendant because the construction of the covenant involved was a question of law for the court, and as we have heretofore held, the covenant is one running with the land and imposed the duty upon the defendant of maintaining the culvert as a cattle pass for the benefit of the - plaintiff’s land.

The measure of damages in the case is the depreciation if any, in the value of plaintiff’s land caused by the breach of the covenant involved, and there is competent evidence in the record fixing the amount of such damages at from $900 to $1000.

Some incompetent evidence tending to show certain elements of damage not proper to be considered by the jury, was admitted over the objection of the defendant, but as the damages awarded to the plaintiff are amply supported by competent evidence in the case, the error in admitting such incompetent evidence should not operate to work a reversal of the judgment.

The instructions given at the instance of the plaintiff, are not in harmony with the views heretofore expressed with reference to the admission of the evidence affecting the terms of the deed, and some of the instructions tendered by the defendant were modified by the court so that they involved like inaccuracies, and the given instructions taken as a series are in other respects subject to criticism. What we have heretofore said renders unnecessary any further discussion of the instructions tendered by the defendant and refused by the court. The instructions as offered were properly refused.

In the view we take of the case, plaintiff, under the evidence in the record, has established her right to recover substantial damages by reason of the breach by defendant of the covenant involved, and as the amount of such damages according, to the proper measure is fully warranted by the evidence, a re-trial of the case for the mere purpose of assessing damages upon a record which shall be free from errors not affecting that issue, would necessarily result in substantially a like verdict and judgment. In such case we are not disposed to reverse the judgment. Finding no error in the record prejudicial to the defendant upon the merits of the- controversy here involved, the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Frederick DeFreitas, Appellee, v. William Nunes, Appellant.
    1. Assault and battery—what pleading essential to self-defense as answer to civil action. In the absence of a plea of son assault demesne, self-defense or justification is not available by the defendant as a substantive ground to a civil action of assault and battery.
    2. Instructions—when omission of word “unlawful” harmless error. In an instruction defining an assault and battery the omission of the word “unlawful” is harmless error if the evidence sustains the unlawful character of the assault.
    3. Appeals and errors—what instructions cannot he complained of. A party cannot complain of instructions which contain a vice common to other instructions given at his own instance.
    Trespass. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Layman & Morrissey and Bbllatti, Barnes & Bellatti, for appellant.
    Miles & Neiger and William N. Hairgrove, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In this action in trespass for an assault and battery, the plaintiff, Frederick DeFreitas, recovered a verdict and judgment in the circuit court of Morgan county against the defendant, William Nunes, for the sum of $1500. The defendant prosecutes this appeal, and the only errors relied upon for a reversal of the judgment relate to the action of the court in refusing to admit evidence offered by the defendant, and in giving alleged erroneous instructions.

The defendant was the father-in-law of the plaintiff and sought to prove statements which had been made to him by his son, George, as to the alleged mistreatment by the plaintiff of his wife at the home of the plaintiff on the evening preceding the day upon which the assault was committed. The evidence was properly excluded as being too remote and mere hearsay, hut the defendant was accorded any advantage he may have sought from the admission of such evidence by the fact that a recital by the witnesses of what occurred and what was said upon the occasion of the assault and battery, fully disclosed the information which defendant claimed to have received from his son.

Notwithstanding the fact that the only plea filed by the defendant was that of the general issue, the case was tried and instructions submitted and given at the instance of both parties upon the theory that the plea of son assault demesne was interposed by the defendant. In the absence of such a plea, self-defense or justification were not available by the defendant as substantive grounds of defense to the action. Olsen v. Upsahl, 69 Ill. 273; Gizler v. Witzel, 82 Ill. 322; Illinois Steel Co. v. Novak, 184 Ill. 501; Chicago Title & Trust Co. v. Core, 223 Ill. 58.

The first instruction given at the instance of the plaintiff, while somewhat inartificially drawn, states the law more favorably for the defendant than the well-established rule permits. By this instruction the plaintiff assumed the burden not only of showing that the defendant committed the assault by shooting as alleged in the declaration, but also that such assault was not committed by the defendant in self-defense. If self-defense had been properly a substantial issue in the case it would not have been necessary to have given a legal definition of what constituted self-defense in every instruction bearing upon that issue.

The second instruction tendered by the plaintiff and given by the court improperly omits the word “unlawful” used in the statute in defining an assault and battery, but as the evidence in the case clearly establishes the unlawfulness of defendant’s assault upon the plaintiff, no harm could have resulted to the defendant by the instruction as given.

It is a sufficient answer to defendant’s criticism of the third and fourth instructions given at the instance of the plaintiff to say that the 16th, 17th, 21st, 22nd, and 26th instructions given at the instance of the defendant are inaccurate in the like respect. Woods v. Dailey, 211 Ill. 495; Purtle v. Bell, 225 Ill. 523.

The fifth and sixth instructions given at the request of the plaintiff relate to the law of self-defense and were more favorable to the defendant than the issues in the case warranted.

The record is free from any error prejudicial to defendant and the judgment of the circuit court will be affirmed.

Affirmed.


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    American Surety Company of New York, Appellant, v. Eli S. Sperry, Guardian, Appellee.
    1. Guardian and ward—right of surety upon bond to discharge, A surety upon a guardian’s bond has a right by petition to require his principal to account , and to give a new bond.
    2. Guardian and ward—when petition by surety should not be dismissed. It is error for the court to dismiss a petition by a surety which prays for some relief to which he is entitled.
    Petition for release of surety, etc. Appeal from the Circuit Court of Vermilion county; the Hon William B. Scholfield, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    L. Bi Atkins, O. M. Jones and W. J. Bookwalter, for appellant.
    Bearick & Meeks, for appellee.
   Mr. Presiding Justice Baume

delivered the 'opinion of the court.

On January 13, 1909, the American Surety Company of ¡New York filed its petition in the county court of Vermilion county, in the matter of the estate of Chester H. Chapman, a minor, then pending in said court, wherein it averred in substance, as follows: That on September 11, 1899, one Eli S. Sperry was duly appointed guardian of said minor and filed his guardian’s bond in the penal sum of $5000 with John W. Goodwine and Arminda Goodwine as sureties thereon; that, thereafter, on December 23, 1901, said Sperry as such guardian invested certain funds of said minor in real estate in the county of Vermilion in the State of Illinois, describing the same, and that said funds were not derived from the sale of real estate belonging to said minor; that on March 23, 1907, the said Sperry filed in said court his official bond as guardian of the said minor in the penal sum of $16,000 with the petitioner as surety thereon, setting out said bond in haec verba; that on October 5, 1907, the said guardian invested certain funds belonging to said minor in 167,753 acres of land in the county and state aforesaid, particularly describing the same, and that said funds were not derived from the sale of real estate belonging to said minor; that on March 27, 1908, the said Sperry as such guardian filed in said court his official bond dated March 26, 1908, in the penal sum of $22,000 with L. C. Messner and W. H. Rice as sureties; that it desires to be relieved and discharged from all further liability as surety upon the said bond of said Sperry as guardian of said minor. The prayer of the petition is that the said Sperry as such guardian of said minor be required to file in said court within a short day to be fixed by the court his report and account showing all his acts and doings as such guardian from the date of his appointment to the filing of said petition, and that he be required to restore the funds of his ward invested in real estate, as aforesaid, or to proceed to a sale of the said real estate for the purpose of re-investing the funds derived from said sale in such investments as may be authorized by law, and when such sale shall have been made, he be required to report the same to the court, and upon the approval of his accounts he be required to file a new bond with sureties to be approved by the court; and that the petitioner may thereupon be released and discharged from all liability upon the bond whereon it is surety.

On the same day the said petitioner filed its petition containing the like averments and prayers, in the matter wherein the said Sperry was guardian of Wilmer G. Chapman, a minor. To these petitions, Sperry, as guardian of said, min- or, interposed his general and special demurrers which were sustained by the county court and said petitions dismissed. From the order dismissing said petitions, the petitioner appealed to the circuit court, where on a hearing upon the demurrers to said petitions said demurrers were sustained and judgment entered against the petitioner in bar of said proceedings and for costs. From this judgment in said proceedings, as consolidated in the circuit court, the petitioner prosecutes its further appeal to this court.

The main question presented for our consideration and determination by counsel for both parties, is, whether or not it was within the power of the county court to direct the respondent, Sperry, as guardian of the minors, Chester H. and Wilmer G. Chapman, to invest the funds belonging to his wards, not derived from the sale of their real estate, in the purchase of real estate. There is no averment in the petitions that the funds belonging to his wards which are alleged to have been invested by Sperry in the purchase of real estate were so invested by the direction of the county court. It is elementary that on a hearing upon a demurrer to a bill or petition, facts extraneous of the petition cannot be considered in determining the sufficiency or insufficiency of such bill or petition. The question sought to be presented as above indicated, is, therefore, upon this record, purely academic.

Section 1 of an act entitled “An Act to provide for releasing sureties on the bonds of guardians,” etc., approved May 11, 1877, and in force July 1, 1877, provides: “That whenever any surety on the bond of any guardian, conservator of any idiot or insane person, or the trustee of any fund or property appointed by the court, or the heir, executor or administrator of such surety, desires to be released from further liability upon any such bond, he may petition the court in which said bond is filed for that purpose, and upon notice being given to such guardian, conservator or trustee in such manner as the court may direct, the court shall compel sitch guardian, conservator or trustee, within a reasonable time to be fixed by the court, to appear and settle his accounts and file in such court' a new bond with such penalty and security as may be approved by the court, which being done, the surety may be discharged from all liability on such bond.” Rev. Stat. 1908, 1495. The petitions here involved recite the desire of the petitioner to be released from further liability as surety upon the bonds of the respondent as guardian of Chester II. and Wilmer G. Chapman, minors, and pray that the respondent be required to file a report and account of his acts and doings as such guardian from the date of his appointment to the time of the filing of said petitions. Under the provisions of the section of the statute above quoted, it became the duty of the county court to grant the prayer of the petitions in the respect indicated, and the dismissal by said court of said petitions upon sustaining the demurrers thereto was error. Conceding that the allegations in the petitions did not warrant the court in granting the prayers of the petitioner in other respects, and that such allegations and prayers were obnoxious to the demurrers interposed thereto, the petitions should not have been dismissed, or judgment entered in bar of the proceedings, but such petitions should have been retained for a hearing upon that portion thereof which conformed to the provisions of the statute entitling the petitioner to be released as surety upon the bonds of the respondent. Gibbs v. Davies, 168 Ill. 205.

For error in entering judgment against the petitioner in bar of the proceedings such judgment is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


text:
    John Whealon, Appellant, v. First State & Saving Bank of Litchfield, Appellee.

      Instructions—requests for contradictory. A party cannot complain of the action of the court in refusing an instruction which contradicts in its statements of law another instruction given at the instance of the same party.
    Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel B. Dwight, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Hill & Burlington, for appellant.
    Paul McWilliams, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On September 26, 1907, the plaintiff deposited in the defendant bank the sum of $500 as earnest money upon the purchase by him, through his agent, T. H. Wood,, of a certain farm then owned by one W. B. Armstrong. On October 15, following, the defendant paid said sum of money to said Armstrong upon a check therefor signed “John E. Whealon by D. R. Kinder.” Kinder was an attorney at law who had been retained and consulted by the plaintiff with reference to the purchase by him of the land from Armstrong. Upon learning that the defendant bank had paid said money to Armstrong, the plaintiff brought this action in assumpsit against it to recover the amount of the said deposit. A trial by jury resulted in a verdict in favor of the defendant and a judgment against the plaintiff in bar of his action and for costs, to reverse which judgment the plaintiff prosecutes this appeal.

The question involved is purely one of fact. When the deposit in question was made by the plaintiff there were present the plaintiff, together with 1ST. W. Snell, the cashier of defendant bank, D. R. Kinder, the attorney for the plaintiff, Michael Morrisson, the president of the defendant bank, and T. H. Woods, the real estate broker employed by the plaintiff. Snell, Kinder and Woods when called as witnesses on behalf of defendant all testified, in substance, that when the plaintiff deposited the money in the defendant bank he orally instructed the cashier, Snell, to pay the same to Armstrong upon the order or a check to he drawn by Kinder, when the latter should have approved the abstract of title to the farm. Kinder testified that he thereafter approved said abstract. Snell testified that Kinder came to the bank and said the abstract was all right and directed the payment of the money to Armstrong; that he (Snell) told Kinder that it would be necessary to have a check to make the debits and credits appear properly on the books of the bank and that Kinder then gave the check as above indicated, and the money was placed to the credit of Armstrong. The plaintiff denied that he authorized the payment of the money upon the order or direction of Kinder. In this state of the record we must hold that the jury were amply justified in finding that the defendant bank rightfully paid the money to Armstrong.

The plaintiff offered some evidence which was excluded by the court tending to show that when Kinder claimed to have examined and approved the abstract and so informed the defendant hank, said abstract had not in fact been prepared and submitted to Kinder, and the ruling of the trial court in excluding such evidence is assigned as error. In a proceeding by the plaintiff against Kinder, the evidence excluded would have been competent, but such evidence had no bearing upon the issue of fact involved in the'case at bar. The case of Merchants Nat’1. Bank v. Kichols & Shepard Co., 223 Ill. 41, cited by plaintiff in support of the doctrine that an agent cannot enlarge the scope of his authority by his own statements or declarations is not in point, because the scope of Kinder’s authority as agent for plaintiff does not rest upon the statements or declaration of Kinder but upon the testimony of the witnesses Kinder, Snell and Woods as to the statements and declarations made by plaintiff. The defendant had no duty to perform with reference to the abstract of title, further than not to pay the money until such abstract had been approved by Kinder, and Kinder’s statement to it that he had approved the abstract was conclusive upon it within the scope of Kinder’s authority as established by an apparent preponderance of the evidence.

While the second and fifth instructions' given to the jury at the instance of the defendant are not wholly accurate, in view of the evidence in the case, and the other given instructions, which stated the law with substantial accuracy, they could not have operated to mislead the jury. The first of plaintiff’s refused instructions was properly refused because it injected into the case a question not in issue. The second of said refused instructions is in conflict with the first instruction offered by plaintiff and given by the court and plaintiff cannot complain because the court refused to give to the jury contradictory statements of the law at his request.

There is no error in the record prejudicial to the plaintiff, and as the verdict is apparently right upon the merits of the controversy, the judgment will be affirmed.

Affirmed.


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    Merchants and Farmers State Bank, Appellant, v. W. W. Sheridan et al., Appellees.
    1. Bankruptcy—what not affected by composition agreement. A composition agreement does not operate to prevent a party from realizing upon any security of which he could have availed himself if no such agreement had existed.
    2. Bankruptcy—when creditor not bound to disclose security. If property pledged to a creditor belongs to a bankrupt co-partnership, which is the debtor, the creditor upon filing his claim against such bankrupt is bound to disclose the fact that he held the same as security for the payment of the partnership debt; but if the property pledged belongs to a third person, no such duty devolves upon the creditor.
    3. Pledges—when foreclosure appropriate. Foreclosure lies for the purpose of enforcing a debt against a pledge given as security therefor if there are conflicting claims as to the ownership and right of possession of the pledge.
    Bill in equity. Appeal from the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    E. J. Miller, for appellant.
    Walter Eden and B. M. Peadro, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The complainant, Merchants and Farmers State Bank of Sullivan, filed its hill in equity against W. W. Sheridan and B. M. Peadro to foreclose its alleged lien upon a certain diamond which formerly belonged to the defendant Sheridan, and was claimed by him to have been deposited with the complainant for safe keeping, and the title to and right of possession of which was claimed by the defendant Peadro under and by virtue of a bill of sale therefor from said Sheridan while the same was in possession of complainant under its claim that the diamond was delivered to it by Sheridan in pledge as security for the payment of certain indebtedness owing to it by said Sheridan and his mother, Carrie Sheridan, as copartners doing business as W. W. Sheridan. Upon issues joined on the separate answers of said Sheridan and said Peadro to said bill of complaint and complainant’s replications to said answers the cause was referred to the master in chancery to take the proofs therein, and upon a hearing upon said proofs the chancellor entered a decree dismissing said bill for want of equity. To reverse such decree the complainant prosecutes this appeal.

The right of the complainant to invoke the remedy sought was unchallenged by the defendants either by demurrer to the bill or by their answers thereto.

The uncontroverted facts established by the evidence are substantially as follows: On July 1, 1906, W. W. Sheridan and Carrie Sheridan, his mother, as co-partners, conducted a retail clothing business in Sullivan under the name of W. W. Sheridan, and- said co-partnership was then indebted to the complainant in the principal sum of $2504.23 represented by notes aggregating $2100 and an overdraft for $404.23. On or about said date, W. A. Steele, the president of complainant bank, interviewed the defendant Sheridan in his place of business relative to the overdraft of $404.23 and requested that it be “fixed up.” Sheridan then gave to Steele the diamond in question, which was claimed by Sheridan to be worth from $600 to $700, but which appears from the evidence to have been worth from $350 to $400, and on the same day or within a day or two thereafter Sheridan gave to the complainant a note that covered the amount of said overdraft. In September, following, said co-partnership was further indebted to complainant in an overdraft for $42.-95, and thereupon the complainant obtained judgments by confession upon said notes against said co-partnership for the aggregate amount of $2667.40, upon which judgments executions were issued and levied upon the stock of goods belonging to said co-partnership. Shortly thereafter the Sheridans employed the defendant, E. M. Peadro, an attorney at law, to institute their voluntary proceedings in bankruptcy, and on September 30, 1906, said W. W. Sheridan executed to said Peadro, in consideration for legal services, a bill of sale for said diamond, and also executed a written order addressed to W. A. Steele directing him to deliver the said diamond to said Peadro. In October 1906, before Peadro had completed the preparation of the necessary papers with reference to the contemplated voluntary proceedings in bankruptcy, creditors of said co-partnership other than the complainant, instituted involuntary proceedings in the United States District Court to have said co-partnership adjudged bankrupt, and thereupon the sale of the property under the executions issued upon the judgments by confession in favor of the complainant was enjoined by said court, and said property came into the possession of the trustee in bankruptcy appointed by said court. The complainant filed its claim against said bankrupt co-partnership with the referee in bankruptcy, as being unsecured, and the same was allowed as an unsecured claim. Thereafter, a composition agreement, the details of which are not here necessarily involved, was entered into by the creditors whereby they were to-receive 33^-% of the amount of their claims, which composition agreement was approved and confirmed by the court.

The only controverted question of fact in the case relates to the purpose for which the defendant, W. W. Sheridan, gave to complainant or to W. A. Steele, its president, for it, the diamond in question. Steele testified that upon the occasion when he went to see Sheridan with reference to “fixing up” the overdraft for $404.23, Sheridan took the diamond from his pocket and handed it to him, saying in substance, “I will give you this as security for the $400 note,” referring to a note for that amount signed by W. W. and Carrie Sheridan; that he told Sheridan he did not know anything about the value of the stone and didn’t want it, and Sheridan replied, “Ton take it, it will stand as security, and you sell it as soon as you can;” that he took the stone to the bank where he thereafter kept it in the safe; that Sheridan subsequently frequently asked him if he had made any sale of the diamond.

Z. D. Whitfield, teller of complainant bank, testified that he saw Sheridan who asked him if Steele had shown him the “sparkler” which he (Sheridan) left with Steele for. security, and upon his replying that he didn’t know anything about it, Sheridan told him he had given it to Steele as security to cover the overdraft; that he thereafter heard Sheridan tell Steele to sell it for $350 or $400, but not to take less than that; that Sheridan was in the bank several times and asked Steele whether he had done anything with the diamond.

Hugh Lindner, a witness called on behalf of the defendant Peadro, testified that upon one occasion while he was clerking for Sheridan he heard a conversation between Sheridan and Steele with reference to the diamond; that he heard Sheridan ask Steele if he (Steele) didn’t want to buy a diamond and Steele replied, “No,” but he would take it and sell it for him; that Sheridan gave Steele the diamond and Steele took it with him; that he was 30 or 35 feet from Steele and Sheridan while they were conversing and did not hear all the conversation between them. Frank Moore, also a witness called by the defendant Peadro, testified that he was in Sheridan’s place of business and heard a conversation between Steele and Sheridan; that as Steele started out of the store Sheridan asked him if he did not want to buy a diamond and Steele replied, “He didn’t want to buy it but he might take it over and try to sell it for him;” that Steele then returned to the office in the storeroom where Sheridan was, and where Steele and Sheridan had some further conversation which he did not hear; that he did not see the diamond and did not see Sheridan give it to Steele. The defendant, W. W. Sheridan, did not testify as a witness in the case, but there is in evidence a letter written hy him to Steele under date of September 6, 1907, in which he says: “As you have sold the store formerly mine you no doubt have rec’d what monies you had invested, in which case you will express me by return mail the diamond I left in your keeping. This is no more than right, Mr. Steele, and I trust I will receive the diamond at once.”

The above and foregoing is all the evidence in the case bearing upon the controverted question of fact involved and in our opinion warrants no other conclusion than that Sheridan pledged the diamond in question to the complainant bank as security for the payment of the $400 note made to it by the co-partnership.

There is no appearance in this court hy the defendant Sheridan but it is urged on behalf of the defendant Peadro that the decree must have necessarily' been predicated upon a finding hy the chancellor, first, that the composition agreement having been accepted and the money paid thereunder complainant’s claim was satisfied and that the pledge, if it was a pledge, was released; or second, that the diamond was pledged as security for the payment of the $400 note, and inasmuch as more than $400 of the entire indebtedness was realized by the complainant the pledge was thereby released; or third, that as the .diamond was given to Steele for the purpose of being sold for a sum not less than $350 or $400, and as Steele did not sell the stone under that agreement or attempt to do so, the giving by Sheridan of the bill of sale and the order heretofore mentioned revoked the authority of Steele; or fourth, that a settlement was had which liquidated all the indebtedness of the Sheridans to the complainant.

It is not pretended that the diamond in question belonged to the co-partnership, but it is conceded that it was the individual property of W. W. Sheridan. Sheridan, although a member of the co-partnership, was a distinct and separate entity from the copartnership. In re Bertenshaw, 157 Fed. Rep. 363. The composition agreement did not operate to prevent complainant from realizing upon any security of which it could have availed itself if no such agreement had existed. In re Mertens, 144 Fed. Rep. 818, it was held that where the individual property of one partner of a firm is pledged to secure a debt of the partnership, and the partnership is afterwards declared bankrupt, the creditor is entitled to prove the full value of his claim against the partnership, without any deductions for the security pledged; and that a creditor of a bankrupt partnership is not required to apply securities in his hands, which are the individual property of one of the partners, upon his claim against the partnership, but may prove his claim against the bankrupt partnership, and have it allowed in full. Broperty pledged by a third person as security for the payment of a debt of another stands in the position of a surety of the debtor. Price v. Dime Savings Bank, 124 Ill. 317. Section 16 of the Rational Bankruptcy Law of 1898, provides that the liability of a person who is a co-debtor with or guarantor -or in manner surety for a bankrupt shall not be altered by a discharge of such bankrupt, and section 14c of the same law provides that the confirmation of a composition shall discharge a bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge. If the property pledged had belonged to the co-partnership the complainant bank upon filing its claim against the bankrupt co-partnership would have been bound to disclose the fact that it held the same as security for the payment to it of the partnership indebtedness, but as the property pledged belonged to a third person no such duty devolved upon the complainant. The second proposition advanced by the defendant Peadro, that inasmuch as more than $400 of the entire indebtedness was realized by the complainant, the property pledged as security for the payment of the note for that amount was thereby released, is also untenable. The composition agreement provided for the payment to the creditors of the bankrupt co-partnership 33-¿-% of the amount of their claims, and the payment made to the complainant in pursuance of such composition agreement was not available to discharge certain items constituting a part of the entire indebtedness to the exclusion of certain other items. At most such payment to the complainant was only operative to discharge 33-?.-% of the amount due on said $400 note.

In the face of the conflicting claims of the defendants, Sheridan and Peadro, to the ownership and right of possession of the diamond in question, and the threatened litigation by Peadro to establish his alleged claims, complainant was fully warranted in filing its bill herein to obtain a decree for the foreclosure of the pledge, before attempting to sell the same under circumstances which must necessarily have operated to depreciate its selling price.

Other than the composition agreement which was approved and confirmed by the court in the bankruptcy proceedings there is no evidence tending to show any settlement or compromise of the debt due the complainant from the co-partnership, and as said composition agreement did not operate to release the pledge sought to be foreclosed the complainant is entitled to a decree foreclosing the same.

The decree of the circuit court will be reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.