text:
    Mary E. Owens, Administratrix, Appellee, v. Illinois Central Electric Railway Company, Appellant.
    1. Negligence—when absence of rules established. Meld, under the evidence, that the jury were justified in holding the injury sued for in this case was the absence of rules adopted and enforced by the defendant company.
    2. Master and servant—-when doctrine of assumed rish does not apply. Specific acts of negligence on the part of the master are not ordinarily assumed by the servant.
    3. Master and servant—when doctrine of fellow-servants does not apply. Where a servant is injured through the combined negligence of the master and a fellow servant and the negligence of the master is the proximate cause of the injury the master is liable notwithstanding the negligence of the fellow servant contributed to the injury.
    4. Contributory negligence—what not as a matter of law. It is not negligence as a matter of law for the road master of the defendant company to ride in the vestibule of one of its electric railway cars.
    5. Evidence—what competent upon duration of life. The Wiggles-worth tables showing the expectancy of life are competent in an action where the question of expectancy of life is material.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the November term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Page, Wead, Hunter & Scully, for appellant.
    Chiperfield & Chiperfield, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The defendant company, incorporated under the general railroad act of this state, owned and operated an electric railroad from St. David to Brereton, Illinois, commonly known as an interurban railroad. This line of road was ten or twelve miles long. Canton was located about five miles north of St. David, and Brereton about four miles north of Canton and about one-half mile south of Norris. Plaintiff’s intestate was in the employ of the defendant company and held what is commonly called the office of road master upon a railroad; his duties required him to see that the physical condition and the surface of the tracks were in proper condition for the operation of cars; he also had charge of all construction work. His duties required him to go over the track frequently and he did this almost every day." He had charge of the section gang who performed the labor upon the tracks under the direction of a foreman. The cars used upon the defendant’s road were at his service at all times for the purpose of hauling material for the purpose of keeping the road bed in proper condition and repair, and he had authority to stop the cars at any point along the line of the road either for the purpose of alighting from or boarding the cars and, to that extent, the persons in charge of the cars were under his direction. A Mr. Morton held the office of president and general manager of this road, and a young man by the name of Brown was designated as superintendent. In the usual operation of its road the company operated but one car but at certain times during the day when a coal mine known as the Simmons mine was in operation an extra car was run between Canton and this mine in the morning and evening for the purpose of transporting the miners to and from the mine. This car was only run when the mine was being operated; the men in charge of the regular car depended on seeing it for ■ information as to when it was being run. In going to and from his work, plaintiff’s intestate was accustomed to ride upon the cars of the defendant and the persons in charge of the cars had directions to collect no fare from him and he did not have a pass. On the morning of the accident, plaintiff’s intestate left his home about six-thirty for the purpose of going to his work; he boarded the regular car and he was riding in the front vestibule with the motorman and thé foreman of the section gang. When other cars than the one usually operated upon the road were running thereon for any purpose and they were required to pass each other, the only passing point in Canton was known as the Birch street switch. From the Birch street switch to the Simmons, mine, a distance of from a mile and a half to two miles, the track was straight with nothing to obstruct the view, and any car running between the mine and the Birch street switch could readily be seen by persons at the switch and when a car was seen approaching, it was the duty and was customary for the car arriving at the switch to await the arrival of the other car. On the morning of the accident, there was a dense fog which obscured the view of the track. The car upon which plaintiff’s intestate was riding arrived at the Birch street switch, but did not await the arrival of any car from the Simmons mine but proceeded on its way north toward the Simmons mine. It had proceeded but a short distance when it collided with a car coming from the Simmons mine, and as a result of that collision, the motorman, the section foreman, and the plaintiff’s intestate were killed. It is to recover for the death of plaintiff’s intestate that this action is brought.

The declaration consists of thirteen counts, four original counts and nine designated as additional counts. They allege, in various forms, acts of negligence on the part of the defendant, consisting of operating the road without any proper rules or regulations for the governing or movement of cars and the conduct of the men in charge thereof; that parties in charge of the operation and movement of the cars were permitted to run the same without any rules, regulations or directions ever being made or provided by defendant regarding the meeting and passing of cars. The second count charges that it was the duty of the defendant to transport or carry plaintiff’s intestate to and from his work upon its cars and that it was its duty to employ reasonably competent and safe men to manage and operate and control these cars, but that in that regard defendant neglected its duty, etc. The fourth count charges that it was the duty of the defendant to inform and advise its servants in charge of the said car of the time and place at which they would be expected to meet and pass other cars, etc. The other counts charge that it was the duty of the defendant to employ reasonably safe and competent and skillful persons to manage, operate and control their cars, but that it failed and neglected to perform this duty, etc. Also that it was its duty to provide and equip said cars with proper means and appliances for stopping the same and that it failed in this duty, etc.-; that it became and was the duty of the defendant on account of the dense fog existing at the time, to inform plaintiff’s intestate and the persons in charge of the regular car of the approach of the car with which they collided, and to give them information that upon that morning the car to Simmons mine was upon the track, all of which it failed to do; also that defendant failed upon the morning of the accident to give to the plaintiff’s intestate and the persons in charge of the car upon which he was riding directions or orders to wait at the Birch street switch for the arrival of the car with which they collided.

The general issue was pleaded. The trial resulted in a judgment against defendant for $7500.

It is insisted by defendant that the deceased had full knowledge of the method, manner and custom of the operation and movement of cars upon defendant’s road, that he was familiar with all the conditions existing, that he was fully conversant with and knew of all of the movements and operation of the cars thereon without being given specific information in regard thereto, that by continuing in the employment of the defendant company that he assumed as one of the risks of his employment the possibility of being injured in the manner and under the conditions by which he met his death. Defendant also insists that the, death was caused by reason of negligence of other servants of the defendant who were then and there fellow servants of the deceased, that he was a fellow servant of the motorman and conductor, that the injury was caused by reason of their negligence in failing to stop at the Birch street switch, and await the approach of the car with which they collided. It is also insisted by the defendant that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions, and that the judgment is excessive.

Upon the charges contained in the various counts of the declaration that defendant did not employ competent and reliable servants for the management and conduct of its business and that it did not provide proper rules and regulations for the conduct of its servants and the movement of its cars and did not provide the necessary means whereby information might be conveyed to the employes and servants in charge of the cars upon the happening of conditions in the movement and operation of the cars when information of such conditions might become necessary to be communicated to them, an examination of this' record discloses that there was, in fact, no one whose duty it was to supervise the management, control and operation of the defendant’s cars. Mr. Brown, who is designated as the superintendent, had been in the employ of the company from about the first of July, 1909, and he was the only person authorized to give specific orders to control the movements of these cars. The only railroad experience that he had had prior to the time of his employment by the defendant was as a clerk and ticket agent in an office of the T. P. & W. Bailroad; that in that office he had had no experience in the management, movement and operation of railroad trains or cars. The record further discloses that the company did not have, and there were no rules promulgated or regulations provided by it by which the management and operation of cars were to be governed. That his duties as superintendent consisted of taking care of the cash, keeping books, furnishing supplies, etc., and the usual duties of that character; that while Mr. Morton was designated as and held the position of president of the company, his connection with the operation of the road was only that of an adviser whenever he may have been called upon for consultation; his occupation was that of an agriculturist.

The record further discloses that on the morning of the accident, the car known as No. 9 had gone to the Simmons mine with miners and was returning to the car barn at the time of the collision. The motorman in charge of this car was what is commonly called a “roustabout” at the barns, and when called upon to do so he took charge of this car running to the Simmons mine. There was no schedule time for the cars at any points excepting the time of leaving the towns through or to which they ran, and the general movement and operation of the cars was left to the servants in charge thereof. While it is true that a small road does not and could not-require elaborate rules for its operation or the same definiteness and accuracy in the movement and operation of its cars as steam railroads on which trains are more frequently operated, it was a question of fact for the jury to determine whether under the conditions shown to exist, this company was guilty of negligence as charged against it in the declaration or some of the various counts thereof, and that question was properly left to the jury to be determined as a question of fact from all the evidence under proper instructions of the court.

Whether the deceased was killed by one of the ordinary hazards of his employment, the risk of which he assumed, was also a question of fact for the determination of the jury from all of the evidence relating to the customs, methods and manner of the operations and movement of the cars and the knowledge that deceased had thereof. Under the doctrine of assumed risks, specific acts of negligence on the part of the employer are not ordinarily assumed by the servant. Upon the record the jury was warranted in finding that the master was guilty of the negligence charged and that the plaintiff’s intestate was not killed by reason of one of the risks assumed by him in his employment.

Upon the contention that the plaintiff's intestate was killed through negligence of his fellow servants, the question as to who are fellow servants was one of fact for the determination of the jury. The contention of defendant that although the death may have been caused as a result of the combined negligence of the defendant and of fellow servants the defendant is not liable, is not tenable; the rule is clearly and definitely settled in this state that where a servant is injured through the combined negligence of the master and fellow servants, and the negligence of the master was the proximate cause of the injury, the master is liable, notwithstanding that the negligence of a fellow servant contributed to the injury. Ry. Co. v. McLallen, 84 Ill. 109; Ry. Co. v. Powers, 74 Ill. 341; Yeates v. I. C. R. R. Co., 241 Ill. 205; C. U. T. Co. v. Sawusch, 218 Ill. 130; Kennedy v. Swift & Co., 234 Ill. 606.

The fact that deceased was riding in the vestibule and was in the habit of riding in the vestibule of defendant’s car with its consent was not contributory negligence per se, but was a circumstance to be considered by the jury in determining the question of due care by deceased.

The contention that the admission of the Wiggles-worth table showing the expectancy of life of deceased was error, is not well taken; the courts have recognized this is a legitimate method of proof of this question and the admission of these tables in evidence has frequently been sanctioned by the Supreme Court and has been held as furnishing to the jury one means of arriving at the question of pecuniary loss by reason of the death.

The instructions given on behalf of the plaintiff critised by defendant are not subject to the criticisms made. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth refused instructions offered in behalf of defendant are framed in such a manner that each instruction is composed of from seven to thirteen separate and distinct propositions, some of law and some of fact, and in each of these the court was asked to instruct the jury that the plaintiff must prove by a preponderance of the evidence that the law imposed upon defendant the duties which the respective counts of the declaration alleged the defendant owed to the plaintiff, and in this particular the instructions were erroneous and were properly refused.

The instructions which were asked by defendant and refused upon the question of fellow servants do not correctly state the law; there was no error in refusing the instructions offered upon that question. We find no prejudicial error in the record upon the question of the admission and rejection of evidence, or in the giving or refusing of instructions.

We find no reversible error in this record, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Forest L. Buck, Defendant in Error, v. The Citizens Coal Mining Company, Plaintiff in Error.
    1. Master and servant—when declaration states cause of action. Beld, that the declaration in this case which alleged the furnishing by the master to the servant of a vicious mule in consequence of which he was injured, stated after verdict, a cause of action, notwithstanding such declaration showed that the plaintiff gained knowledge of the viciousness of such mule, it appearing that his injury resulted while obeying a command of his master.
    2. Pleading—presumptions which aid declaration after verdict. All intendments and presumptions are indulged in favor of the sufficiency of a declaration after default and judgment.
    Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Wilson, Warren & Child, for plaintiff in error.
    C. F. Mortimer and Oscar J. Putting, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff was a miner working for the defendant company as a mule driver; while driving a mule furnished to him by the defendant company and in the performance of his duties, uncoupling two cars from the mule, the mule gave a sudden jerk or lunge, which caused the cars to run together, catching plaintiff between them whereby he was injured.

This action is brought to recover for those injuries. The action was brought to the March term, 1911; defendant was properly served with summons but made no appearance at that term of court; a default was entered against it, damages were assessed by the court at $1,500 and a judgment rendered against defendant for that amount. No steps were taken by defendant, no motions made to set aside the default or judgment, but at the May term, 1911, a motion was made by the defendant to set aside the judgment and default. This motion was denied, and this writ of error was prosecuted.

It is conceded by defendant that by reason of the non-appearance of the defendant and by reason of no action being taken to set aside the default at the term at which it was entered the only question that can now be presented to this court as a ground for reversal of the judgment is upon the contention that the declaration filed by the plaintiff does not state a cause of action. The only question raised upon the declaration and argued by the defendant is that the declaration charges negligence on the part of the defendant in furnishing plaintiff with a mule named “Kate” for the purpose of hauling coal and that the mule was a mean, vicious, sulky, balky, kicking and dangerous mule and had a disposition to run away, that upon discovering these characteristics of “Kate,” plaintiff complained to the defendant but that the defendant, knowing the disposition and danger of said mule, negligently ordered and directed plaintiff to continue driving said mule, and that while in the performance of his duties, in driving “Kate” while hitched to two cars of coal, and while in the performance of his duty in uncoupling said cars and in the exercise of reasonable care for his own safety, “Kate” suddenly with a jerk caused the two cars to come together with great force and crushed and injured the plaintiff. It being contended that this declaration by its averments discloses that the plaintiff became acquainted with and knew the characteristics of “Kate” and had as much knowledge thereof as the defendant, that the declaration does not aver that the defendant had any other knowledge.of “Kate’s” characteristics than that disclosed to it by plaintiff at the time of his complaint, and that the declaration does not aver that the defendant promised to furnish any other mule or to cure or remedy any of the peculiar characteristics of “Kate,” and that the plaintiff in obeying the direction of defendant to continue driving “Kate,” in the performance of his work, assumed all risk incident to being injured in the manner complained of in his declaration and that by reason of such assumption of the risk there is no liability on the part of the defendant and that for this reason no cause of action is stated in the declaration.

Under the rule laid down in Western Stone Company v. Musical, 196 Ill. 385, it was the duty of the master to use reasonable diligence in furnishing the servant with a reasonably safe mule and that after notice to the defendant by the plaintiff of the characteristics of this mule and upon the order then given by defendant to continue in the use of this mule, it was the duty of the servant to obey and that he had the right to rest upon the assurance which the command to obey implied that there was no danger in continuing to drive “Kate” while in the hauling of this coal, that when acting in obedience to such order, plaintiff assumed no risk unless he acted recklessly in obeying it, and the question as to whether he did act recklessly in that regard was a question to be determined from the evidence, and this cause having been heard by the court without a jury and there being no evidence preserved in the record, this court must presume that the trial court heard sufficient evidence to justify the finding made by it, and that the proof was sufficient to justify the judgment. Sangamon Coal Mining Company v. Wiggerhaus, 122 Ill. 279.

Again, in the case of Illinois Steel Company v. Schymanowski, 162 Ill. 447, the Supreme Court has said: “A master is liable to a servant when he orders the latter to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it. Even if the servant had some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying.the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. The master and servant are not altogether upon- a footing of equality. The primary duty of the latter is obedience, and he cannot be charged with negligence in obeying an order of the master, unless he acts recklessly in so obeying. Whether he did so was a question of fact to be determined from the evidence. ’ ’

The rules governing this declaration are the same as if the cause had been tried with a jury, and the finding made by the court has the same effect as a finding of a verdict by a jury; and all intendments and presumptions must be held to be in its favor, and while certain rules of pleading are required of the plaintiff, that he shall state all that may be necessary in his declaration where its sufficiency is questioned by a demurrer and requires the judgment of the court thereon, the same technical requirement does not exist after a verdict and many of the requirements which must be stated to make a sufficient pleading when questioned by a demurrer, the failure to make such averments may be cured by the verdict. The rule that a pleading is to be construed most strongly against the pleader does not obtain after a verdict of the jury, or a finding by the court upon trial without a jury; and after a finding by the court for the plaintiff, all intendments and all presumptions are then in favor of the declaration and of the correctness of the judgment. Diamond Glue Company v. Weitzychowski, 227 Ill. 338; C. & G. T. Ry. Co. v. Smith, 124 Ill. App. 628.

After a careful examination of the authorities cited upon the question of its sufficiency, we are of the .opinion that the declaration stated a good cause of action, and is sufficient after a verdict.

The judgment is affirmed.

Affirmed.


text:
    J. M. Dickey, Appellant, v. F. W. Ghere, Appellee.
    1. Sales—what not essential to warranty. No exact words aro necessary to constitute a 'warranty. If from all the circumstances in evidence, including the representations made by the vendor, the vendor has knowledge of the use for which the article sold is desired, a warranty is established and an action for its breach will be sustained.
    2. Instructions:—predicated upon evidence. An instruction is erroneous which is not predicated upon any evidence in the cause.
    3. Instructions—must he confined to issues. Instructions which are not confined to the issues in the cause and which are calculated to mislead are erroneous and should be refused.
    4. Instructions—must not he argumentative. Instructions argumentative in form and calculated, to mislead are erroneous and should be refused.
    Appeal from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Jack & Deck, for appellant.
    Montgomery & Boland, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

In this action appellant brought suit against appellee to recover damages for a breach of warranty of a separator and engine sold by appellee to appellant. The trial below resulted in a verdict and judgment against appellant for costs.

Appellee was for a number of years the owner of a threshing outfit which at the time of the contract with appellant relating thereto was stored in a barn at Bethany, in Moultrie county. Appellee placed the outfit in the hands of one Drake, a broker, for sale. Through his influence appellant was induced to go to Bethany and look at the threshing outfit; appellee accompanied them from Decatur, Illinois.

The action is based upon an alleged warranty of the threshing outfit by appellee to appellant at the time he made the purchase. Appellant purchased the outfit for use in the state of Colorado, where the machine was shipped. Upon arrival it was proved to be utterly worthless for the purpose for which it was purchased. Appellant returned to Decatur, Illinois, and sued appellee for damages claimed to have been caused by reason of the alleged breach of warranty. The grounds urged for reversal of the judgment are that it is contrary to the evidence, that the court erred in the admission and rejection of evidence, and in giving and refusing instructions to the jury.

On examination of the record we find that appellee had for a number of years been engaged in operating the threshing outfit in question in Moultrie county; when purchased by appellant the outfit had been stored at Bethany, Illinois, for one season by appellee. Desiring to dispose of the outfit, appellee gave a written description of the property to one Drake who was a broker at Decatur, Illinois. Drake finally induced appellant, who was desirous of purchasing a threshing outfit for the purpose of taking it to the state of Colorado, to go to Bethany and look at this machinery. Upon this trip he was accompanied by appellee, Drake, and a machinist who went at the instance of appellee for the ostensible purpose of operating the automobile in which they made the journey. The barn at which the threshing outfit was located had but one entrance and it was impossible to make any thorough examination of the threshing outfit on that occasion. The record further discloses that appellee was informed by appellant of his object in purchasing the machinery and of the. work it was expected to perform, that appellant was assured by appellee that the threshing outfit was practically new and in good condition and would do the work expected of it, but that when put to the test in Colorado it failed to operate, that it was not a machine which could or would do the work for which it was purchased, that an expert machinist in Colorado had been employed for the purpose of attempting to put it in condition to do this work and that his efforts had resulted in a total failure, that the machinery was of no value except for junk, that it had been in use for ten or twelve years and was virtually worn out and the reason that appellee had ceased to use it in Moultrie county as a threshing outfit was because it could not be made to perform its work satisfactorily.

While no exact words are necessary to constitute a warranty, it is evident from this record that appellant purchased the machinery upon representations made by appellee, and that in doing so he relied upon these representations, and the statements made by appellee hat the machinery was in good condition. That it would perform the work expected of it as described by appellant to appellee cannot be considered merely as representations ; that the machine would not and did not perform the work which appellee assured appellant it would perform there can be no question. The verdict is clearly against the manifest weight of the evidence.

Upon the question of the giving and refusing instructions, the first instruction complained of and designated as first instruction given on behalf of defendant told the jury that no recovery conld be had upon an implied warranty. This instruction was not based upon any evidence or any issue in this case. The issue was upon the question of an expressed warranty, and an implied warranty does not arise unless the machinery has been manufactured by and under the direction of the vendor for a special purpose and sold by him for a special purpose. This instruction could only tend to confuse the jury in determining the question of warranty. The next instruction complained of is designated as number three. It informed the jury that before the plaintiff could recover he must not only prove the warranty but must prove a breach of the warranty, and then specifically directs the jury .that in order to prove that warranty it was necessary that appellant show that the statements alleged to constitute a warranty related to facts existing at the time of the sale. It also directs the jury to take into consideration the age and condition of the machine in determining whether or not appellee made an express warranty of this machinery; how this could in any manner assist in determining this question we are unable to perceive. We are unable to determine the object of this instruction. It could have been of np assistance in determining the issues involved in this cause, and should not have been given. Complaint is also made of the fourth instruction given at the instance of appellant. This instruction is erroneous for the same reason assigned to the third one. The sixth instruction is erroneous as being argumentative, as well as undertaking to inform the jury that certain statements made by appellee did not amount to a warranty. It is unnecessary to go into detail ujion the criticisms made of the instructions given as a series on behalf of defendant; the instructions are so misleading and argumentative as to render them of little purpose in undertaking to define the law applicable to the facts in this cause.

The judgment must be reversed and the cause remanded.

Reversed and, remanded.


text:
    Theodore E. Mester, Appellee, v. Quincy National Bank, Appellant.
    1. Contracts—how liability determined. Where an agreement or contract is signed hy parties, or a person is obligated by the execution of a certain written instrument, that instrument must control, and the question of liability depends upon the construction of this instrument.
    2. Banks—when liable as trustee. If a bank receive money in trust to be paid out by it only when certain conditions exist if it pays out such money before such conditions exist it is liable to the person from whom it received such money.
    3. Evidisnce—when conversation out of presence of party ineompetent. Material conversations had out of the presence of a party are incompetent as to him unless he is in some way connected therewith.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, "presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied November 8, 1911.
    Govert & Lancaster, for appellant.
    Wilson & Wall, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by Theodore E. Mester against the Quincy National Bank to recover $1,000 deposited with that bank by plaintiff as part subscription for stock in the International Leather Company, a proposed corporation then being’ promoted. The trial below resulted in a judgment against defendant, from which it appeals.

One A. B. Donelson undertook to promote and incorporate a corporation known as the International Leather Company at Quincy, Illinois. The proposed capital stock of the corporation was $100,000. Certain articles of agreement for subscription for this stock were prepared and the Quincy National Bank was made trustee to receive deposits. The first subscriptions were made and partial payments made to the bank under agreement that unless $100,000 was subscribed and paid within a certain time the partial payments made to the bank as trustee were to be returned to the subscribers. The requisite amount of stock was not subscribed within the required time, and the money then paid to the bank as trustee was repaid to the subscribers. The proposition was again taken up and new subscriptions started. Plaintiff herein was one of the latter subscribers. He was furnished with a written statement of the conditions upon which the subscription was made and the deposit placed in the hands'of the bank as trustee. That paper is as follows:

“international leather company,
Quincy, Ill., 2-26-1904.
Quincy National Bank, Trustee, for Stock Subscriptions, $2000.0.0.
The undersigned hereby agree with the Quincy National Bank, Trustee, and with the signers of other agreements of which this is a counterpart, to pay to said Quincy National Bank, Trustee, $2000.00 Dollars for 200 shares (Par value $10.00) Preferred Stock and 200 shares (Par value $10.00) Common stock, One-half of said purchase price to be paid to the Quincy National Bank, Trustee, on the signing of this agreement; the balance upon demand of the Treasurer of the International Leather Company when such demand is made and met, the Quincy National Bank shall deliver Certificates of stock herein subscribed for.
Quincy, Ill., Mar. 3, 1904.
Received of Theo. E. Mester the sum of One Thous- and Dollars, being the first payment designated in above subscription agreement.
The Quincy National Bank, Trustee,
J. M. Winters, Cashier.”

The bank paid the $1,000 deposited with it by plaintiff to Donelson. The attempt to raise the required amount of capital stock was not successful, the venture was a failure and the incorporation of the company was never completed. Plaintiff demanded of defendant a return of his money; it was refused. Appellant contends that it paid the money to Donelson upon an order given it by him for that purpose; this is denied by appellee.

Appellant insists that the judgment should be reversed on account of the improper admission of evidence on behalf of the plaintiff, and that under the terms of the contract or instrument signed by it, it cannot be held liable for the payment of the money to Donelson.

The uniform rule of evidence is that where an'agreement or contract is signed by parties, or a person is obligated by the execution of a certain written instrument, that instrument must control, and the question of liability depends upon the construction of this instrument.

Upon the question of the condition upon which the subscription was paid and under which, defendant held the fund as trustee, it must be construed alone from the instrument, and upon its construction this court holds that the bank received the money to be held until final payment was made; that the proposed corporation was to deliver to the defendant bank the stock subscribed for and when the stock was delivered to the bank and finally paid for by the plaintiff, then the bank iras to deliver the stock to the plaintiff, and until such time all money held by it was held in trust for the benefit of the parties entitled thereto and that the entire amount of the subscription was required to be held by the bank until final payment was made and the stock delivered; that any payment prior to that tjme by the defendant bank was unauthorized; that while no definite person is designated in the agreement as to whom payment should be made, the only proper construction of the contract from its general terms is that it. was to be made to the corporation, and that any other payment was not justified or warranted and was unlawful and that under no construction of the contract could payment to Donelson be held valid. This is virtually conceded by appellant from the defense made that payment was made to Donelson upon an order of the plaintiff. Plaintiff, however, denies that he ever gave such order or even authorized any such payment to be made other than by the terms of this .paper. The burden of proof upon the question that plaintiff authorized the payment is upon defendant.

On the question of the improper admission of evidence, the specific evidence complained of is that the court permitted plaintiff to prove by various witnesses a conversation had between Donelson, the promoter, the defendant and the several witnesses at the Tremont Hotel in the city of Quincy regarding the conditions upon which the subscription was made. Neither the defendant nor any officer of the defendant or any person representing the defendant was present at this conversation and there is no evidence that the conditions which were claimed to have been stated at this conversations were ever brought to the knowledge of defendant or that defendant ever knew any of the conditions named in this conversation. The admission of this evidence was improper, and if considered by the jury in determining its verdict, was highly prejudicial to the defendant, and this court is not in position to say and we cannot hold that defendant was not prejudiced by the testimony. The court also permitted plaintiff to testify to a conversation had between him and Donelson, that subscriptions to be taken in the second attempt to subscribe this stock were not to be upon the conditions named in the first undertaking. This conversation was not had in the presence of any officer of defendant nor is there any testimony that any officer knew or had any information of such conversation; it was also incompetent and improper.

On account of the admission of this incompetent evidence, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    William Witt et al., Appellants, v. William Gallemore, Appellee.
    1. Instructions—when should he accurate. Where a case is close on the facts the instructions should be especially accurate.
    2. Instructions—when upon effect of contract erroneous. An instruction which leaves to the jury to determine how the parties to a contract understood the same, is erroneous; the question is what the contract was and not how it was. understood.
    3. Instructions—when upon preponderance of evidence erroneous. An instruction which undertakes to tell the jury upon what facts and circumstances they shall determine the preponderance of evidence, is erroneous, as invading the province of the jury.
    4. Instructions—when submit questions of lam. An instruction is erroneous in submitting a question of law to the jury where it instructs the jury as to what is essential to make a contract.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Hubbard, Schmiedeskamp & Groves, for appellants.
    J. T. Gilmer and Cyril W. Armstrong, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiffs against defendant to recover damages for the breach of an alleged contract for the sale of eighty hogs claimed by plaintiffs to have been sold by defendant to thepi- and which he failed to deliver and which they were ready, able and willing to take and pay for as per their alleged contract. Trial below resulted in a verdict and judgment against plaintiffs for costs, from which they prosecute this appeal.

On the morning of March 10, 1909, William Witt, a member of the firm of Witt Brothers, called defendant over the telephone at his residence and had a conversation with him concerning the purchase and sale of eighty head of hogs. This conversation was heard by several persons, ranging from eighteen to sixty-five years of age, who were eavesdropping on the wire, also by two telephone operators. The evidence of these parties and the evidence of the plaintiffs and defendant is hopelessly in conflict and the question as to whether the conversation had between the parties with regard to the sale and purchase was such as to constitute a contract between them is so close that it is necessary that the jury should have been accurately instructed as to the law applicable to the facts in this case. Turner-Hudnut Co. v. Vaupel, 111 Ill. App. 147; E. St. C. Ry. Co. v. Meeker, 119 Ill. App. 27; I. C. R. R. Co. v. Burke, 112 Ill. App. 415.

The instructions in this case are so conflicting and erroneous that they furnish no guide whatever to the jury arriving at a verdict. The first instruction given on behalf of defendant informed the jury that it was incumbent upon the plaintiffs to prove by a preponderance of the evidence that the parties to the alleged contract understood the terms and conditions alike. This instruction submitted not a fact as to whether a contract had been made but submitted to the jury the question whether the parties understood the contract alike. It was not a question of their understanding, but a question of the terms of the contract, if any contract was made, which should have been submitted to the jury. This instruction also undertook to tell the jury upon what facts and conditions and circumstances they should determine the preponderance of the evidence and eliminated from the consideration of the jury the question of the number of witnesses testifying. Instruction number three told the jury that if there was a misunderstanding between the parties, then there was no contract; such is not the law. If a contract was made and the terms expressed, then the language used must determine what was meant, and a difference in understanding of the language used could not defeat the contract. Instruction number six is subject to the same criticism. Number eleven left to the jury a question of law as to what was essential to make a contract. The eighth refused instruction requested on behalf of the plaintiffs should have been given to the jury; it is' a correct statement of the law and no other instruction covered the questions submitted by this instruction. Plaintiffs’ refused instruction number nine is also a correct statement of the law and should have been given to the jury. It is unnecessary to go into detail apon all of the questions raised upon these instructions; from what has been said, the other errors will not be repeated on another trial.

The judgment is reversed and the cause remanded.

jReversed and remanded.


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    Joseph Stewart, Appellee, v. The Vandalia Railroad Company, Appellant.
    1. Evidence—what not part of res gestae. A conversation between an engineer and a conductor of a train out of the presence of the plaintiff, held, no part of the res gestae and in nowise binding upon the plaintiff who was suing a carrier for injury of a horse owned by the plaintiff.
    2. Common carriers—when limitations of liability not enforced. Limitations of liability sought to be imposed by a carrier will not be enforced against the shipper unless he is shown to have assented thereto.
    Appeal from the Circuit Court of Edgar county; the Hon E. B. E. KIMBROUGH, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Dyas & Dyas, for appellant; Outten, Roby, Ewing & McCullough, of counsel.
    H. S. Tanner and Frank T. O’Hair, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff shipped a race horse over defendant’s railroad from Paris, Illinois, to Monticello, Illinois. In his declaration, plaintiff alleges that by reason of negligence on the part of the defendant in careless and improper handling and movement of the car while switching it and while in the train in going from Paris to Monticello, the horse became sprained in the hips and hack and was bruised and otherwise greatly injured and damaged. Trial be- ' low resulted in a judgment against defendant for $375. It seeks to reverse this judgment upon the ground that the evidence does not sustain the charge of negligence in the handling and movement of the car in which the horse was placed, and also on the ground that plaintiff signed a shipping contract for the shipment of this animal, in and by which contract it was required that any claim for damages should be made within five days after the removal of the animal from the car, and that no such claim was made by plaintiff until long after that time.

The question of the handling and the movement of the car while the horse was in transit and whether or not the horse was damaged by reason of any improper or violent movement of the car or train were both questions of fact for the jury, to be determined by them upon the consideration of all the evidence under proper instructions of the court.

Complaint is made of the refusal to permit defendant to show a conversation between the engineer and conductor of the train on which the horse was taken from Paris to Monticello. This conversation was between employes of the defendant, plaintiff was not present nor any one representing him, and it was no part of the res gestae of the action, and the court did not err in sustaining the objection to this conversation.

The evidence on the question of how the car was handled and whether or not injury was occasioned thereby was conflicting and we are not prepared to say there is not sufficient evidence in this record to warrant the finding of the jury.

Upon the question of the requirements of the contract that claim should be made within five days after the horse was removed from the car, the burden was upon the defendant to show that the shipper knew the conditions of the contract and that he voluntarily assented thereto. The record does not disclose that the shipper’s attention was in any manner called or directed to the terms and conditions of this contract: To sustain this contention, defendant relies wholly upon the fact that plaintiff had shipped horses a number of times over various railroads, and had at one time read a contract with the railroad company and .the question as to whether or not in this instance the shipper’s attention was called to and he knew the conditions of this contract was one of fact for the jury, and by their verdict they have found against the defendant on this question, and we are not prepared to say that they were not justified in so doing.

There being no error upon the giving and refusing of instructions by the court, the judgment is affirmed.

Affirmed.


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    C. L. Geer, Appellee, v. John L. Chapin, Appellant.
    1. Brokers and factors—when commissions earned. If a real estate agent is the procuring cause of a sale upon the terms which he was authorized to sell, he is entitled to his commission even though he had not disclosed to the owner who was his prospective purchaser.
    2. Appeals and errors—ivhen slight errors will not reverse. Even though slight errors have intervened a reversal will not be ordered if substantial justice has been done.
    Appeal from the Circuit Court of Pulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Marvin T. Robison, for appellant.
    M. P. Rice, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought to recover commissions claimed to be due for services rendered in bringing about the sale of real estate. The judgment below was for $129 against appellant.

John L. Chapin was the owner of 129 acres of land located in Pulton county, Illinois. Appellee resided in Rogers, Arkansas. In the spring of 1900, appellant listed the tract of land in Pulton county with appellee for sale at $155 per acre, with an agreement that if appellee sold the land he was to receive one dollar per acre commission. Appellee undertook the sale of this land upon those terms. It was priced and shown to various persons and finally it was shown to one Levi Chipman and was priced to him at $157.50 per acre. In attempting to interest Chipman in this property, appellee wrote to appellant informing him that he had listed the land to Chipman at $157.50 per acre, and asked appellant if he would be willing to give appellee as commission all over $155 an acre that he might receive, making the price $155' per acre net to appellant, and if this was satisfactory to reply by two letters, one stating that the least he would take for the farm was $157.50 per acre,—this was for the purpose of being shown to Chipman; the other was a private letter to appellee in answer to his request and stated that he would take $155 net and give appellee all over that as his commission. Appellee did not consummate the sale with Chipman; nor did he inform appellant who his expected buyer was. When Chip-man failed to make a purchase through appellee, he then directed a letter to appellant and offered him $155 per acre for the land; this was accepted by appellant and the contract closed. Appellee demanded his commission of $129 which appellant refused to pay.

It is insisted by appellant that his original contract with appellee was that if appellee did not consummate a sale at the price originally agreed upon, then he was to receive no commission and that appellant reserved the right to make a sale himself. Regardless of what the original agreement was, appellant authorized an increase of the price at which the farm was to be sold, and on such agreement appellee was to receive a greater compensation than that in the original agreement. Appellee undertook negotiations upon these terms and through no fault of his, as the record discloses, Chipman undertook the deal directly with the owner and through him the sale was actually consummated upon the original terms offered to appellee by appellant, and appellant thereby, through the efforts of appellee, secured a sale of his premises at the price and terms originally agreed upon and has derived all the benefits and fruits of the labor of appellee, and appellee is entitled to his commission for such services at the price agreed upon. Scott v. Stuart, 115 Ill. App. 535-39.

The fact that appellee did not notify appellant whom his prospective purchaser was has caused no damage to appellant and was therefore immaterial. Appellant received the price for which he had agreed to make the sale. Rigdon v. More, 226 Ill. 382.

Complaint is made of the rulings of the trial court upon the admission and rejection of evidence, and also upon the instructions given and refused. While there are some inaccuracies in the instructions and some slight errors upon the question of the introduction of evidence and the record is not free from error, there is no error prejudicial to appellant and where substantial justice has been done by a judgment, the judgment should not be reversed upon slight errors which are not shown to have been prejudicial to the party complaining. Jones v. C. & E. I. R. R. Co., 68 Ill. 381.

There being no prejudicial error in this record, the judgment is affirmed.

Affirmed.


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    Commissioners of Highways of Cold Springs Township, Plaintiffs in Error, v. Thomas Bruner, Defendant in Error.
    Roads and bridges—when highway becomes such by dedication. A highway becomes dedicated to the public where the owners upon the respective sides build their fences in such way as to indicate the existence of the highway and the land is used as a highway pursuant to such dedication.
    Action commenced before justice of the peace. Error to the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Richardson & Whitaker and W. E. Lowe, for plaintiffs in error.
    Chafee & Chew, for defendant in error; Thomas M. Headen, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by Commissioners of Highways against defendant to recover a penalty for the obstruction of an alleged highway in the town of Cold Spring, county of Shelby. This action was commenced before a justice of the peace, where a judgment was rendered against defendant for three dollars and costs. Defendant appealed to the circuit court, where a trial resulted in a verdict and judgment against plaintiffs for costs, from which this appeal is prosecuted.

The grounds of reversal urged are that the verdict is against the weight of the evidence, that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions.

Plaintiffs claim a highway, both by right of prescription and by dedication.

The record discloses that the. defendant became the owner of the southeast quarter of the southwest quarter of section 18, town 10, north, range 2, east of the third P. M., Shelby county, about four years prior to the time of the obstruction of the alleged highway by him; that twenty years or more prior to that time, this land was owned by a party by the name of Helms; the southwest quarter of the southeast quarter was, during all of that time, and is now, owned by one Johnson. The public highway which it is claimed has been obstructed by defendant extended in a northerly and southerly direction between these two tracts of land.

This record further discloses that at the time Helms owned the property now owned by defendant and while the land on the east was owned by Johnson, both Johnson and Helms constructed fences along what was supposed to be the line of their property, and the boundaries of the highway of the width of fifty feet were marked off by the erection of these fences. Helms erected a fence on the west side of this highway, and Johnson erected a fence on the east line, and the highway so laid out was travelled by the public and generally used by it. By building these fences the owners of the adjacent property, Helms and Johnson, dedicated the land enclosed between the fences as a public highway. Maltman v. C. M. & St. P. R. R. Co., 41 Ill. App. 230; Green v. Oakes, 17 Ill. 249; City of Chicago v. C. R. I. & P. Ry. Co., 152 Ill. 561.

The use of the land lying between these fences by the public for twenty years or more would create a highway by prescription, even if there had been no dedication by the owners of the land, and the public highway having existed for twenty years or more prior to the time that defendant Bruner became the owner of the land, he had no right or authority to build or construct any fence or make other obstruetions therein.

The record further discloses that after defendant Bruner became the owner of the land a survey was made for the purpose of locating the half-section line between these tracts, and it is contended by defendant that the location of this line by the surveyor showed that nearly the entire fifty feet of the highway was upon defendant’s land and that in accordance with that survey, he moved his fence out into the public highway and reconstructed it at a point twenty-five feet we'st of the half-section line, and the effect of this was that the fence he constructed is located within a few feet, at some places, and at others at the edge, of the travelled highway. So far as the issues involved in this case are concerned, it is immaterial where the half-section line is and whether this highway lies twenty-five feet on each side thereof or not.

While the evidence discloses that at times, when the condition of the road was such as to render it difficult of passage, the travelling public did go upon the land of the defendant, and it is also shown by the evidence that the public did not at all times keep in the one regular beaten path, but where the line of a highway is marked and indicated by fences, and the public acquires right therein by prescription, the right attains to all enclosed between fences. Village of Peotone v. I. C. R. R., 224 Ill. 101; Township of Madison v. Gallagher, 159 Ill. 105.

The record discloses that for more than twenty years the public had used a roadway near the half-section line and that it was generally travelled by the public to gain access to a public highway on the north, and the right to a public highway by prescription depends wholly upon user by the general public, and the question as to whether the public officials did or did not work and repair the road or regard it as a highway is immaterial. However, the highway commissioners of Cold Spring township had cut brush and other rubbish on the north end of this road. Road District No. 1 v. Beebe, 231 Ill. 147.

The variation of the travel between these fences is an immaterial matter. The action of the parties in building the 'fences definitely settled the question of the boundaries of the highway. There is no claim that the highway was ever laid out by the commissioners upon or along this half-section line, or that the owners of the adjoining land ever designated the half-section line as the center of the highway. The right of the public to a highway at this place exists both by dedication and by prescription. The verdict is so clearly against the manifest weight of the evidence as to require its reversal.

The first instruction given on behalf of the defendant is erroneous in not having any evidence in this record upon which it could be based; there is no intimation in this record in any way that the parties originally fencing this road intended to give twenty-five feet on either side of the half-section line. The second instruction given on behalf of defendant informed the jury that if there had been any dispute about this highway shown by the evidence, that the plaintiff could not recover; it is immaterial whether there had been any dispute or not, or whether any question had been raised as to the extent of the public highway or as to its exact location if, for fifteen years prior to the time of the dispute the same had been used as a public highway, any dispute, arising after that time was wholly immaterial, and no evidence of the dispute of the existing of the highway after that time should have been received in this record. The third instruction is also erroneous in not .stating the law as to a dedication. This instruction told the jury that unless the evidence showed with minute exactness the width, length and breadth of the land claimed to have been dedicated and also the exact amount of land contained therein, then the plaintiffs could not recover; the law does not require any such strictness of proof as laid down in this instruction. The seventh instruction given on behalf of defendant is subject to the same criticism as the first; there is no evidence in this record upon which to base it.

We find no error in the refusal of the instructions requested by the plaintiff and which were refused, as the propositions of law contained therein were fully covered by the other instructions given to the jury.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    William H. Turner et al., Executors, Appellees, v. James G. Turner, Appellant.
    1. Appeals and errors—when decree not set aside. A decree in a court of chancery sustained by the evidence will not be disturbed on review.
    2. Appeals and errors—when cost of additional abstract taxed. The cost of an additional abstract if rendered necessary by the insufficient abstract filed by the appellant will be taxed in favor of the appellee.
    Bill in equity. Appeal from, the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed in part and reversed in part.
    Opinion filed October 14, 1911.

    Beach, Hodnett & Trapp, for appellant.
    Hoblit & Smith, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This cause was first heard in this court at the May term, 1909, and opinion filed December 1, 1910, and a rehearing granted; as a result of the rehearing, this court has arrived at the following conclusions:

Emanuel Turner, the father of complainants and defendant, died testate in Logan county, Illinois, on the 17th day of November, 1906. By his will he appointed complainants and defendant executors thereof, said executors being his sons, who, with his widow, Martha Turner, were the only persons entitled to share in his estate. He was the owner of large tracts of farming lands in Logan county, had an account in the bank at Middletown, in said county, besides owning a large amount of personal property. It appears that the deceased at different times loaned money to his several sons, taking notes, and chattel mortgages to secure them, and that these transactions between them continued for many years prior to the time of his death. His will was admitted to probate, complainants and defendant qualified as executors and entered upon the execution of their trust.

After the appointment of the executors, appellees insisted that their co-executor, appellant, was indebted to the estate in certain amounts, and demanded payment thereof; payment was refused and appellees filed their bill in equity asking for an accounting and set forth in said bill various notes which they alleged appellant owed the estate.

The cause was referred to the master, the master made his report and findings. The cause was heard before the chancellor upon exceptions to the master’s report. The exceptions were overruled, the master’s report approved and a decree rendered against appellant, and to reverse that decree this appeal is prosecuted. •

While a great variety of expressions are used in assigning errors in this record, they in fact raise but one question, whether or not the evidence in this case is sufficient to sustain the decree.

At the time of testator’s death he was eighty-four years of age. He had in his possession several notes and chattel mortgages executed by appellant. The only notes upon which any question is raised by this appeal, however, are two notes, one for $733, dated November 4, 1895, and one for $500 which is described in a chattel mortgage dated November 6, 1906. The $733 note was in the possession of testator at his death, but the alleged note of date November 6, 1906, was not found among the papers of testator but a 1 mortgage in which this alleged $500 note is described was on record, and was found by appellees among testator’s papers. Appellees insist that the reason this note was not found among testator’s papers is, that just prior to the death of testator it was wrongfully taken by appellant from a box in which testator kept his valuable papers at home.

Appellant contends that the note for $733 was paid before the death of testator, and that the alleged note for $500 designated as being dated November 6, 1906, never existed and that the only basis for this note being mentioned or described is, that the chattel mortgage of that date which was on record and found among testator’s papers was made to secure the indebtedness represented by another note dated December 2, 1905-, and that it was the intention to renew that note of December 2, 1905, by the execution of a new note and chattel mortgage of date November 6, 1906, but that in fact no renewal note of date November 6, 1906, was ever executed.

The decree found that appellant owed the note of date December 2, 1905, as well as the note of November 6, 1906. Appellant does not question the indebtedness of December 2, 1905, but insists he does not owe the note of date November 6, 1906.

The master found appellant owed both of these notes and his findings were approved and decree rendered thereon by the chancellor, requiring appellant to account for these two notes with others not now questioned. The note for $733 was in the possession or control of testator at the time of his death, and the presumption is that it was not paid. The burden was upon appellant to overcome this presumption. A great deal of stress is placed by appellant hpon the fact that this note was nearly barred by the Statute of Limitations, that it had only a few months to run at the time suit was brought and. that no attempt had been made by testator to collect the note in his lifetime and appellant insisted that the reason he did not insist on the note being delivered to him was because he felt secure and safe from the- fact that it was paid and that he never would he disturbed or called upon by his father to account for it again, hut all the evidence on this question was given, due consideration by the master and he found that this note had not been paid.

There is no direct evidence of the payment of this $733 note, except the testimony of appellant. While numerous witnesses testified that the testator in their presence had said that appellant had paid him “a” note, and also that deceased had said he was lucky in going to town at a certain time, when appellant had sold some hogs, because appellant paid him a note, no witness attempts to connect any of these conversations of the testator with this particular note, except a daughter of defendant and her evidence is vague and uncertain. Upon the plea of payment the burden was on appellant to show that the note was paid.

Regarding the note of $500 alleged to hear date November 6, 1906, there is no direct evidence that it ever existed, hut to show its execution plaintiffs rely wholly upon the fact that the mortgage of date November 6, 1906, which describes this note was found among the papers of testator by the executors, hut the attorney who drafted this mortgage testifies positively that no such note was executed at the time of the execution of the mortgage, and the justice before whom the mortgage was acknowledged says he saw no note at the time he took the acknowledgment, and the testimony of the surviving widow and of Irvin Turner, one of the complainants, who had examined the contents of the box which was taken to the barn by defendant a short time before the death of Emanuel Turner, is that no such note was ever seen by them in this box, and we are satisfied, after consideration of this cause upon the rehearing, and we are of the opinion, that the alleged note of $500 never existed, and that no liability exists against defendant by reason of the recital of the $500 note in the mortgage found among testator’s papers of date November 6, 1906. If recovery could be had upon it, it would have to be upon proof of the lost note and before recovery can be had upon a lost note it must be shown to have been executed, and there is no sufficient proof of its execution in this record. Neither is there any proof of any other existing indebtedness which the mortgage of November 6, 1906, is alleged to have been executed to secure.

There being no controversy as to the $500 note of date December 2, 1905, the decree is affirmed in all matters except wherein it requires appellant to account for the alleged $500 note of date November 6, 1906, and in that respect the decree is reversed.

Affirmed in part and reversed in part.

Motion by appellees to tax costs of additional abstract furnished by appellees against appellant, which motion was taken with the cause, is allowed.


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    Alice J. Stephens, Appellant, v. The Commercial=News Company, Appellee.
    1. Slander and libel—what not defense. It is no defense to an action of libel to show that the publication was predicated upon information obtained from the chief of police and others at the police station and that at the time of the publication and afterwards nothing was known with respect to the truth or falsity of the publication except as indicated from the information thus obtained.
    2. Slander and libel—what evidence incompetent. " In an action of libel conversations had with third parties out of the presence of the plaintiff which bear upon the truth or falsity of the publication made, are incompetent.
    3. Slander and libel—when malice presumed. Where a publication is shown to have been made and charges a felony malice is presumed.
    Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1911.
    Beversed and remanded.
    Opinion filed October 14, 1911.
    Be-hearing denied December 8, 1911.
    A. B. Dennis, for appellant.
    Charles Troup, for appellee.
   Mr. Presiding Justice Philbrick

delivered tlie opinion of the court.

This is an action for damages brought by plaintiff against defendant on a charge of libel. The article complained of was published in a newspaper published by defendant at Danville, Illinois, charging plaintiff with being guilty of renting rooms for immoral purposes and with pandering, alleging damages to the plaintiff, under the usual averments in actions of this character.

Defendant filed a plea of general issue and a special plea claiming privileged communication, upon the theory that the article published was the publication of a judicial proceeding. Replications were filed and a trial had which resulted in a verdict for the defendant, upon which the court rendered judgment against plaintiff in bar of action and for co'sts.

While the plea of general issue was filed, there was no denial on the trial of the publication of the article complained of and which was produced in evidence, and unless the article was a privileged communication there was no defense presented to the action.

It is insisted by the plaintiff that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions to the jury, and that the verdict is contrary to the evidence.

The record discloses that plaintiff was arrested upon complaint filed and taken before the police magistrate. She was never tried and never had a hearing upon the charge that was brought against her. The reporter who wrote the article published in the defendant company’s paper obtained all his information from statements made by the chief of police and others at the police station, and admits in his cross-examination that be knew nothing of the truth or falsity of the charges made against plaintiff in the article complained of, and that it was so near the time of the paper going to press that he had no time to investigate the charges, accepted them as the truth, wrote the article and it was published in the paper and this is the purport of the judicial proceedings which is set forth in the special plea filed by defendant. These facts, although proven, present no defense whatever to this cause of action. The court permitted evidence of the conversations had with the chief of police and other parties at the police station to be given in evidence over objections of the plaintiff. These conversations were had out of her presence and she had no knowledge of them. They were utterly incompetent for any purpose whatever. The objection to them should have been sustained. These conversations were highly prejudicial to the plaintiff. The court also erred in not permitting plaintiff to deny or show that she was not guilty of any of the charges made in the article complained of, and also erred in not permitting her to deny the charge in the article that she had signified a willingness to plead guilty to the charges made.

The instructions given to the jury on behalf of defendant are based upon the theory that this article was obtained as the result of a hearing at a judicial proceeding, hut there is no evidence whatever in this record of any judicial proceeding ever having been had. The information upon which the article was based was derived from gossip obtained at the police station, and all the instructions given on behalf of the defendant upon the theory of a judicial proceeding were erroneous and should have been refused. Instructions number two . and number ten complained of are not correct statements of the law. The question of the intention of the defendant was not a material matter in this action. Instruction number ten is also erroneous in informing the jury that the defendant might rely upon statements told him by’the chief of police if they believed the statements were true. If such could he permitted to be the law on libel, then almost every charge of libel could be defeated. Storey v. Early, 86 Ill. 461; Spolek v. Hoffman, 204 Ill. 532.

The eleventh instruction is erroneous in telling the jury that the plaintiff was required to show that malice was the basis of the publication. Such is not the law. Where a publication is shown to have been made and the publication, as in this case, charges a felony, malice is presumed.

It is useless to go further into the question of these instructions given as a series upon the part of the defendant ; they cannot he sustained upon any theory of the law.

For the errors above indicated, the judgment is reversed and the cause remanded,

Reversed and remanded.


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    A. M. Firey et al., Appellees, v. Judson Harmon, Receiver, Appellant.

      Instructions—when cannot he complained of. A party cannot complain of the giving of an instruction where he has caused the court to give an instruction containing an error such as he complains of.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Outten, Roby, Ewing & McCullough, for appellant.
    LeForgee, Vail & Miller and Barger & Hicks, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover loss of an elevator by fire alleged to have been caused by reason of negligence on the part of appellant in failing to have the engine which it is alleged caused the damage properly equipped with the latest and most approved device for the arresting of sparks and the escape of fire and negligence in the management and operation of the engine at .the time. Trial below resulted in a judgment against appellant for $4500, from which, it prosecutes this appeal.

There is no dispute upon the questions of law applicable in this case; the errors assigned are as to the sufficiency of proof and to the giving and refusing of instructions.

The elevator was located near the right of way of appellant ’s railroad at the station of Koby. The fire occurred about half past nine o’clock on the evening of October 19,1908. The engine which it is alleged caused the fire left Decatur, Illinois, about nine o’clock that evening; it was due to pass Eoby at 9:59, but was a few minutes late.' There is a slight grade in approaching the station but not sufficient to require any different management in the operation of trains. On the evening of the fire, a number of young people were attending a dance at the home of one of the citizens of Eoby, about one hundred and fifty feet from the elevator. The train was seen to pass the elevator by a number of persons most of whom testified in this cause. About ten or fifteen minutes after the train passed, fire was noticed in the elevator; one or two of the witnesses testified that it appeared to them to be a light or lamp inside of the elevator. This was seen through a window near the top of the elevator. Other witnesses testified that at the time the engine passed the elevator it was puffing, and throwing from the smoke stack great volumes of smoke in which were a great many sparks varying in size from the size of the end of the finger to the size of a dime, that these sparks were thrown and alighted upon and around this- elevator. One witness especially testified that his first notice of the fire was upon the ledge of one of the windows in the elevator and as soon as noticed by him he gave the alarm of fire and then removed his horse which had been tied near the elevator, and by the time he returned to the elevator the fire had gained considerable headway. Other witnesses testify that within fifteen or twenty minutes after the engine had passed, the entire inside of the elevator was ablaze and burning so furiously that it was impossible for anybody to go above the first floor, and that any attempt to extinguish the fire was useless. The elevator with its machinery was entirely destroyed. The evidence also discloses that the elevator had not been in use for a number of days, that it had been swept out and was virtually clean, with no rubbish or material which might be easily ignited or set on fire; that there had been no other fire in or about the elevator for several days.

Appellant insists that the record discloses that the engine was equipped with the latest and most approved spark arrester in general use, that it was handled by a skillful engineer and fireman, that it was carefully and properly handled at the time when the alleged fire is supposed to have been caused, 'and that upon this condition of the proof, although the jury may have been justified in finding that the fire was started by reason of sparks escaping from the engine, there is no liability on the part of appellant.

Upon the question of the engine being equipped with the latest and most approved spark arrester in general use, we do not so find this record. While there is some evidence of that fact, the evidence is not positive. Some of the witnesses knew nothing about spark arresters on other roads, whether or not the one used upon their road was in general use or not, hut their testimony was that it was as good as any, and appellant’s witnesses testified that if the engine was equipped with the latest and most approved spark arrester in general use and was properly handled by servants of appellant that sparks such as were described by witnesses for appellee could not possibly have escaped therefrom; also at the time the engine was passing through the village of Roby the engineer was giving the fireman, who was soon to be examined for the position of fireman, instructions as to the method, the best and easiest manner of using and operating an engine, that just before arriving at Roby the fires had been replenished so as to give a good head of steam at that point, and that the greater the exhaust of steam through the smoke stack the more sparks escape. Upon this record the jury was fully warranted in finding that the fire was caused by reason of sparks escaping from the engine of appellant at the time it passed this elevator.

We are satisfied that the jury was fully warranted in answering the special interrogatories which were submitted to it upon the questions of whether or not the engine was equipped with the latest and most approved ■ spark arrester in general use and whether or not the engine was properly handled and skillfully managed at the time it was passing the elevator, in the negative, and that the fire was caused by reason of sparks escaping from the engine, in the affirmative; these findings are justified by the record and are not against the weight of the evidence.

Appellant complains of the eighth instruction given on behalf of appellee for the reason that in instructing the jury as to the requirements of appellant in having its engine equipped with the latest and most approved spark arrester, the court uses the words “in common use” instead of “in general use” and required appellant to maintain that the spark arrester used by it was in common use on other roads, insisting that they were only required to have the latest and most approved spark arrester without reference to its common use, etc. In appellant’s fifth instruction given to the jury by the court, the same language is used and by this . instruction the jury was informed that the law required it to have its engines equipped and supplied with the best and most approved appliance in common use for arresting sparks, and having used this language it is not in position to complain of similar language used in the instruction given on behalf of appellee.

Appellant also complains that the court erred in refusing defendants’ instruction marked as refused instruction number four. An examination of the instructions given discloses that the proposition of law contained in the fourth refused instruction was fully covered by the instructions given on behalf of both appellants and appellee; there was no error in refusing this instruction.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


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    John S. Wilson, Defendant in Error, v. Samuel Storm, Plaintiff in Error.
    1. Evidence—what incompetent in action to recover payment made in connection with proposed exchange of properties. Conversations with respect to negotiations which preceded the actual trade agreed upon, are incompetent in such an action, and likewise evidence as to the achual value of the land involved in the trade.
    2. Contracts—ivhat does not justify refusal to perform. A contract duly entered into without fraud or undue influence must be performed if valid even though its terms may not have been understood.
    Error to the Circuit Court of Shelby county; the Hon. Alrert M. Eose, Judge, presiding. Heard in this court at the November term, 1910.
    Beversed and remanded.
    Opinion filed October 14, 1911.
    Bryan H. Tivnen, for plaintiff in error.
    W. O. & W. L. Kelley and Feed E. Latch, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

John S. Wilson was the owner of eighty acres of land in Shelby county encumbered by a mortgage of $3000. Samuel Storm was the owner of one hundred acres of land in the same county encumbered by two mortgages, one for $5500 and the other for $2000. After considerable bickering concerning a trade between these two men of the respective farms, a trade was finally consummated between them, the deeds were drawn up and examined by the parties, they were signed and acknowledged before a police magistrate, $500 was paid as part of the consideration for the trade from Wilson to Storm, and the deeds were left in the possession of Abercrombie, the justice of the peace, pending the time when the parties would meet for the exchange of deeds and the payment of the balance of the consideration. Before this time arrived, plaintiff Wilson conceived the idea that he had made a had contract and that he was paying too much for the Storm land and finally upon their meeting declined to proceed further with the contract upon the terms expressed in the deeds; he then claimed they did not express his contract as he understood it. Defendant Storm demanded the completion and fulfillment of the contract and offered his deed to plaintiff upon the payment of the balance of the consideration. Plaintiff declined to make any further payment, refused to exchange deeds and demanded the repayment of the $500; this was refused and plaintiff then brought suit to recover the $500 paid to defendant on this contract. He recoverd a judgment against defendant, from which defendant Storm prosecutes this appeal.

The pleadings consist of the common counts, to which the plea of general issue was filed. The record discloses that plaintiff’s contention in this transaction is that the farms were to he traded upon the basis that there was no encumbrance on either farm, that the value of the land of plaintiff Wilson was $110 per acre, that the value of the land of defendant Storm was $130 per acre, and that it was on this basis that the trade was made and understood by him. Defendant on the other hand, insists that the farm's were to be traded according to the contract expressed in the deed, that each was to assume all encumbrances on the other’s land and that Wilson was to pay Storm $4,800 to hoot. ’ ’ Plaintiff Wilson did his own figuring in reference to the trade with defendant, who first insisted that $5000 bé paid to him, but they finally agreed on $4800. This contract was agreed upon at the home of defendant Storm and the contract as agreed upon at that time was afterwards reduced to writing by the execution of the deeds. Wilson read the deed executed by Storm before it was acknowledged before the justice of the peace and knew the contents of both deeds at the time ■ they were delivered to the justice of the peace to be held pending the conclusion of the transaction.

All of the evidence permitted to be introduced by the trial court concerning former conversations, bickerings, and attempts to trade had between parties was incompetent and should not have been admitted. The court also improperly admitted evidence as to what was the value of these two farms. The actual value upon the market cannot in any way throw any light upon the transaction as to what the contract made between these two parties was.

The only basis upon which plaintiff seeks to recover ' is that he did not understand the contract which is contained in these deeds and did not understand it as executed and contends that each party was to pay the encumbrance on his own land and they were to be exchanged free of encumbrance. The pleadings do not set forth of allege any fraud or deceit on the part of defendant Storm; neither is there any proof of any such acts upon his part, and the contention of plaintiff that the contract made is not expressed in these deeds is based almost wholly upon his own testimony. There is no evidence that any undue advantage was taken of plaintiff in the trade, but the record discloses that the trade was entered into fairly and tba.t the contract as made is fairly and properly expressed in these deeds ; the deed executed by plaintiff himself contains the provision thát the farm was conveyed to Storm subject to an encumbrance of $3000 thereon and which encumbrance grantee in that deed, Storm, assumed and agreed to pay. That deed was drawn and executed by and at the request of the plaintiff and acknowledged by him with that provision in it, and his contention that the deed does not contain the contract and the conditions upon which this trade was made is unsupported by evidence in this record. There is nothing-in the record to show that plaintiff was not fully capable and able to fully understand the trade that he made; the record shows that he did.his own figuring and did use pencil and paper for the purpose of making his computations, and the fact that he made miscalculations thereon, if he did, or did not figure it correctly was through no fault of the defendant, and he cannot be held responsible therefor.

The jury arrived at their verdict in this case either through sympathy for the plaintiff or on account of the incompetent evidence admitted by the court. The judgment in this case is so clearly against the manifest weight of the evidence that it must be reversed.

The judgment is reverse'd and the cause remanded.

Reversed cmd remanded.


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    George Galanos, Appellee, v. Springfield & Northeastern Traction Company et al., Appellants.
    1. Instructions—when refusal of peremptory proper. Where the declaration contains a good count to which the evidence in the record is applicable, a verdict should not be directed. 0
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the HoN. T. M. Harris, Judge, presiding. Heard in this court at the November term, 3911.
    Affirmed.
    Opinion filed October 14, 1911.
    King & Miller, for appellant.
    Beach & Trapp and Peter Murphy, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This action is brought by appellee against appellant to recover for injuries received by appellee while in the employ of appellant as section hand; the trial below resulted in a verdict against appellant for $350.

The record discloses that appellant employed gangs of section men each working under a foreman; that appellee was in the employ of appellant as a section man; that while in such employ it became and was part of his duty to assist in hauling refuse, brick and mortar on cars of appellant; that the several section gangs were jointly doing this work; that in this work it was necessary to load the refuse upon flat cars, haul it to its destination and unload it; that in doing this work standards were placed upon the sides of the flat cars and boards placed on edge against the standards for the purpose of holding the refuse upon the cars. After the cars had been taken to their destination and the load removed therefrom they were then returned to the point of reloading, and the boards- that were placed against the standards for the purpose of preventing the dirt from falling off were either laid flat upon the cars or set on edge along the standards. There is some evidence that it had been customary and usual to lay the boards flat upon the cars, but that in order to save time at the point of reloading, the section men were directed by the foreman to place the boards on edge against the standards so they might be in place when arriving at the point of loading. At the time of the injury while the cars were returning to the point of reloading, through the jolting or jostling of the oars, the boards became displaced upon the flat car and either did or were in danger of coming in contact with the poles that support the wires holding the trolley wire along the right of way of appellant. While appellee was upon the car one of these boards hit him, knocking him from the car and injuring him. The board hit appellee after coming in contact with the pole. There is some evidence that one of the section foremen saw that the boards were displaced and were about to come in contact with the pole, when he directed appellee to seize the boards and replace them in their position upon the car. While appellee was attempting to obey this command the board struck him. This evidence was afterwards excluded by the court upon the ground that the person who directed appellee to replace the board was not the foreman under whom appellee was working, but was the foreman of another section gang, and it is insisted that as to appellee the foreman who directed appellee to replace the board was not a vice-principal.

The first count of the declaration charges that appellee was directed by the foreman who was a vice principal to do and perform certain dangerous work and this command consisted in directing him to take hold of or replace the hoards in position on the ear at or ahont the time they were liable to come in contact with the pole along the right of way. The second additional count charges negligence in the handling and operation of the cars and that by reason thereof the board became displaced and appellee was injured by being struck by it. The evidence is conflicting as to what caused the board to come in contact with the pole and as to how or in what manner appellee was struck thereby.

The argument of counsel for appellant seems to be very labored and is technical in the extreme. With the evidence which related to the count containing the charge of directing appellant to perform certain dangerous work excluded by the court, it is evident that the verdict was rendered, and permitted to stand, on the second count of the declaration. This count stated a good cause of action. There is evidence tending to prove it, and it was not error for the trial court to refuse to give a peremptory instruction for defendant. Where the declaration contains a good count to which the evidence in the record is applicable, a verdict should not be directed. Scott v. Parlin etc., 245 Ill. 460.

While the evidence in this case is close, we cannot say that the finding of the jury upon the issues of fact involved is clearly unwarranted, and unless this court can say that the verdict is clearly against the manifest weight of the evidence, it should not'be disturbed.

Criticism is made of the third instruction given on behalf of appellee in that it turns the jury loose and permits them to find a verdict without confining them to the charges of negligence in the declaration. Upon examination of this instruction, we do not find it subject to the criticism made. While the instruction is inaccurate in some particulars, we think it sufficiently confined the jury in its deliberations to the allegations of the declaration and the evidence in the cause, and that the giving of the instruction was not such error as to require reversal of the cause.

Finding no prejudicial error in the record, the judgment is affirmed.

Affirmed.