text:
    City of Chicago v. Francis M. Sullivan, Administrator.
    Gen. No. 13,669.
    1. Instruction—when, upon preponderance of evidence, not improper. Held, that the giving of the following instruction was not error in that the same had been expressly approved by the Supreme Court.
    “While as a matter of law the burden of proof is 'upon the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence in this case preponderates in favor of the plaintiff, although but slightly, it will be sufficient to find the defendant guilty.”

      2. Pbactice—what does not waive motion for new trial. The mere failure to argue a motion for a new trial does not constitute an abandonment thereof.
    3. Negligence—when city guilty of. Held, that the evidence tended to establish the negligence of the city, it appearing that a hole existed in a public street against the rail of the car tracks and that the plaintiff was injured while driving a wagon carefully along such street without knowledge of the existence of such hole or means of ascertaining its existence.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    James Hamilton Lewis and John K. Caveriy, for appellant; P. J. O’Shea, of counsel.
    Quin O’Brien and Archibald A. McKinley, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of $3,000 against the city of Chicago in favor of the appellee, Francis M. Sullivan, who was plaintiff below. The judgment was recovered by Sullivan under the “Campbell Act” as administrator of the estate of Vaclav Stephanek, against the city for causing though its negligence the death of his intestate on July 30, 1904.

The suit was originally brought against the Chicago Passenger Railway Company and the city of Chicago jointly. The declaration was in two counts. Each alleged that the city of Chicago was possessed and had control of 21st street in the city of Chicago on July 30, 1904, and that on that date the Chicago Passenger Railway Company had a double track railway along said street, “whereupon it became and was the duty of the defendants and each of them to use all due and reasonable care and diligence to have and keep said tracks and the street there in a reasonably safe repair and condition so that injury might not he caused to travelers. upon the said street.”

It then proceeds to allege that the defendants on that date and long prior thereto permitted a dangerous hole to remain in the paving of said street “between and among and adjacent to the said tracks and right of way of said railway, at a point near the intersection of 21st street with Western avenue,” and that the defendants had knowledge of the defect in time to repair it had they used reasonable care.

The second count pleaded also an alleged ordinance of the city of Chicago accepted by the Chicago Passenger Railway Company, granting to said Railway Company a “franchise” to maintain said tracks in and along said street, and providing that the railway company should maintain the paving in the street to the width of their right of way.

Both counts alleged that “by means of the negligence” described in allowing the hole to remain in the street, the plaintiff’s intestate, on July 30, 1904, while in the exercise of due care driving a wagon along 21st street, was thrown from the wagon by reason of a wheel of said wagon going into the hole.

Both counts also make the allegations usual in such cases as to the next of kin and their deprivation of the means of support.

Each defendant pleaded separately the general issue.

During the progress of the trial, before a jury, while evidence was being heard on behalf of the plaintiff, the court sustained an objection to the introduction in evidence of an ordinance offered, on the ground that it varied from that pleaded. Thereupon the plaintiff dismissed the suit against the Chicago Passenger Railway Company, and it proceeded against the city of Chicago alone. Evidence was heard in behalf of both plaintiff and defendant.

The jury returned a verdict of $3,000 in favor of the plaintiff. A motion for a new trial and a motion in arrest of judgment were made, but not argued. After their denial by the trial judge an appeal was taken to this court.

Under the assignments of error the matters here argued are that the verdict was against the weight of the evidence, in that the jury should have found that the plaintiff’s intestate was guilty of contributory negligence, and that the single instruction given at the request of the plaintiff was erroneous. The instruction is the familiar one, which reads:

“While as a matter of law the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence in this case preponderates in favor of the plaintiff, although but slightly, it will be sufficient to find the defendant guilty.”

This court expressed dissatisfaction with this instruction in O’Donnell, Admr., v. Armour Curled Hair Works, 111 Ill. App., 516, but we simply declined in that case to reverse a judgment because it had not been given when asked. Since then the instruction has been expressly approved by the Supreme Court. Chicago City Railway Co. v. Fennimore, 199 Ill., 9; Chicago City Railway Co. v. Bundy, 210 Ill., 48.

It is said that the instruction in this case is not applicable to the circumstances proven. It seems to us that if it is not, the only reason can be that there was no conflict in the evidence, and indeed that seems to be the appellant’s contention. If that be so, the instruction certainly could have done the defendant no harm.

The principal contention of the appellant, however, is that the evidence shows contributory negligence on the part of the appellee’s intestate, or, to be more precise, that the evidence fails to negative the existence of contributory negligence on hi^ part. The argument in its behalf says: “It is true the question of contributory negligence is for the jury, but the verdict of the jury should certainly be based on the evidence; they have no right to go outside the record and by their verdict conclude that plaintiff was not guilty of contributory negligence in the absence of all testimony on this point. * * * It was the duty of the trial court to grant a new trial in this case because of the contributory negligence of the deceased.”

To this the appellee replies that neither this question nor any other affecting the weight or sufficiency of the evidence to sustain the plaintiff’s case can be raised in this court, because the motion for a new trial was not argued in the court below. It must therefore be considered waived, appellee insists, citing to this proposition Calumet Furniture Co. v. Reinhold, 51 Ill. App., 323, and Firemen’s Insurance Co. v. Horton, 68 Ill. App., 497.

These cases support the rule to which they are cited, but we have since that time limited and modified it. Hartford Fire Insurance Co. v. The Northern Trust Company, 127 Ill. App., 355; Eckels et al., Receivers, v. Hawkinson, 138 Ill. App., 627. In the last case the matter is discussed at some length, and it is pointed out that while the motion for a new trial may be so abandoned in the court below as to foreclose the defeated party from complaining of its denial in the court above, the mere failure to argue it is not to be considered such an abandonment.

Nor do we think that McLean County Coal Co. v. Simpson, 196 Ill., 258, is an authority which goes to the length claimed by counsel for appellee, as we understand his argument. The opinion in that case does indeed declare that by allowing the plaintiff’s case to go to the jury without moving for exclusion of the evidence, or for a peremptory instruction, the defendant concedes that there is evidence tending to support the plaintiff’s case, and that therefore in such case there is not preserved for the Supreme Court the question of law whether there is evidence tending to support the verdict. But the question of fact, the question whether the plaintiff has supported the burden of proof which the law casts on him, is open to the Appellate Court (which in passing on the decision of the motion for a new trial must weigh the evidence) just as much where no motion to take the case from the jury was made as where it was. This indeed the Supreme Court implies in the case cited. Upon the contention whether the preponderance of the evidence justified and supported the verdict, the statute, it says, “has granted but one appeal — that to the Appellate Court.”

We have examined, therefore, the evidence in this cause, to decide this contention. We see no reason for disturbing the verdict and judgment of the Superior Court.

It is not seriously contended that there was not negligence shown on the part of the city in allowing a hole a foot deep and seven feet long in the pavement of a street otherwise covered with cedar blocks to remain there for three months, “while teams got stuck in it every day ”; but it is insisted that there is no evidence that plaintiff, to use the language of defendant’s argument, “in driving along a street car track, not fast, not slow, in the bright daylight of an early summer afternoon,” was in the exercise of due care for his own safety, and the very fact that the wheel of his wagon fell into the hole is evidence that he must have been guilty of negligence himself.

The Supreme Court in C., C., C. & St. Louis Ry. Co. v. Keenan, 190 Ill., 217, said: “The question whether Kerr” (the plaintiff’s intestate) “was guilty of contributory negligence -was a question of fact to be passed upon by the jury, and while the burden of proof was upon the plaintiff to show that Kerr was in the exercise of due care for his own safety, it did not devolve upon him to establish such due care by direct and positive testimony, but such due care might be inferred from all the circumstances shown to exist immediately prior to and at the time of the injury, and in determining such question the juty might properly take into consideration the instincts prompting to the preservation of life and avoidance of danger.”

We think this rule applied to the case at bar disposes of the question of contributory negligence. The hole was against the rail of the car tracks; the wagon was being driven carefully, as a man had a right to drive in the streets of the .city; the driver, so far as the evidence shows, had no notice of the existence of the hole not to be gained by his immediate observation of the street; it is fairly and properly to be presumed he did not see it.; his wheel suddenly slipped into it and he'was thrown from the wagon and killed. We think his administrator’s right to recover is clear.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    John C. Patterson v. The Northern Trust Company et al.
    Gen. No. 13,685.
    This case is controlled by the decisions in Patterson v. Northern Trust Co., 132 Ill. App., 63 and 208; affirmed by the Supreme Court in 230 Ill., 334, and 231 Ill., 22.
    Bill in chancery. Error to the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    John C. Patterson, for appellant.
    Harry S. Mecartney and Judah, Willard, Wole & Reichmann, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

Despite the voluminous briefs filed in this cause, there is little for this court to say concerning it which has not been said in the two opinions filed in appeals with the same entitlement, 132 Ill. App., 63 and 208. The judgments involved in them have since been affirmed by the Supreme Court. Patterson v. Northern Trust Co., 230 Ill., 334, and Patterson v. Northern Trust Co., 231 Ill., 22.

In the latter case the Supreme Court, sustaining our opinion to the same effect, declared that they were “convinced that the demurrer to the cross-bill was properly sustained on the other ground stated in the chancellor’s order — that it showed no equity on its face.”

Again it says; “As we understand this record, appellant’s only basis of claim for injury by the issuing of the order of June 25, 1902, is that the Northern Trust Company should have insisted on strict forfeiture of the lease.

Appellant does not deny that he signed an agreement waiving this forfeiture, and that he authorized the bill of foreclosure in the original proceedings, which amounted to a waiver of notice to forfeit. He complains that certain agreements of his attorneys in filing the bill of foreclosure in the original proceedings, and in entering the decrees therein were not authorized by him. He does not deny that they were authorized to act as his attorneys, and he does not here or in the original proceedings show wherein they misled him or in any way acted without authority. He signed the agreement of March 15, 1898, substantially waiving any right which he may have had to a strict forfeiture, and never raised any question in this regard until he filed, years after, his answer and cross-bill herein. To insist upon a strict forfeiture of this lease under these circumstances would be most harsh and unjust. On the facts presented by this record, we think this delay amounts to such laches as to preclude him from now raising this question.”

This disposes at least of the first twelve paragraphs of the appellant’s amended bill in this case, of the dismissal of which by the chancellor below on the sustaining of a demurrer to the same, the appellant is here complaining. The allegations in these paragraphs are identical with the allegations of the cross-bill filed six months before, on which the opinion of the Supreme Court above quoted was given.

If there be anything in the remainder of the amended bill herein which is not covered by that opinion, it is based on the proposition that the Merrimac Building Company was not a corporation permitted to hold real estate, and that all its acts in the premises were null and void, and all the acts of the Horthern Trust Company in dealing with it illegal and reversible because of its knowledge of this incapacity.

In relation to this, the opinion of this court in Patterson v. The Northern Trust Company, 132 Ill. App., 208, says: “Twice has the Merrimac Building Company been recognized by plaintiff in error as a corporation, and its right as such to hold the title to the Stewart Building unchallenged, first, when the assignment of the Kohlsaat lease was made to it, and, second, when the bill here was filed against it seeking to enforce a lien under the covenants of the Kohlsaat lease. If the company were otherwise open to the attack made, so far as plaintiff in error is concerned, the doctrine of estoppel would be a complete defense.”

In affirming the judgment of this court in that case, Patterson v. Northern Trust Co., 230 Ill., 334, the Supreme Court says: “Appellant devotes a portion of his brief to the point that the Merrimac Building Company was not permitted, hy law, to hold real estate, and that all its acts in the premises were absolutely null and void. It is hardly proper for appellant at this late day to raise this question, if valid, it should have been taken into consideration hy him some seven years ago, when he joined in the hill to foreclose the trust deed, or even at an earlier date, when appellant, who is himself an attorney at law, joined in consenting to an assignment of the lease to the corporation which he now says is acting in violation of law in holding it.”

In Patterson v. Northern Trust Co., 231 Ill., 26, also, the Supreme Court says: “The appellee is barred hy his own acts from raising the question as to the right of the Merrimac Building Company to take as assignee under said lease, as he is also barred from questioning the authority of the Northern Trust Company to act as trustee under said deed of trust.”

The decree of the Circuit Court is affirmed.

Affirmed.


author: McAllister, P. J.

text:
    Albert M. Forbes v. Clemens J. Pausinsky.
    I. Pleading. — Averments in a special plea of knowledge in the plaintiff, before and at the time he became assignee of a certain note, of facts showing a total failure of consideration of the note, not traversed by the plaintiff, must be taken as admitted.
    > 2. Negotiable instrument — Failure or consideration. — If, without actual fraud, there is a want or failure of consideration of a note which would operate as a defense if the transferrer had sued, the transferree, chargeable with notice or knowledge thereof, is open to the same defense, if it he not accommodation paper.
    3. Sale — Condition, precedent. — Where the subject-matter of a sale is not in existence or not ascertained at the time of the contract, an engagement that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty but a condition, the performance of which is precedent to any obligation upon the vendee under the contract.

      4. Same. — Where the real character and qualities of certain shares were unascertained at the time of the sale, and they were offered and sold by the seller and purchased by the buyer as of a description giving them another and different character and quality, and they did not turn out to be of such description or quality, but worthless or not marketable by the name, denomination, or description by which they were sold and purchased. Held, that a condition precedent of the contract of sale was unperformed.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed November 16, 1883.

      Mr. William W. Farwell, for appellant;
    as to pleading, cited Wilson v. King, 83 Ill. 232; Gould on Pl. Ch. 3, § 167.
    As to the right of a purchaser to avoid a contract for material misrepresentations: 2 Parsons on Contracts, 780, 1, 6; Kerr on Fraud, 328; Sparling v. Marks, 86 Ill. 126.
    The assignee of stock is substituted not only to the right but to the obligations of the original subscriber: Angell & A. on Corporations, § 634.
    An agreement between members of a corporation that the shares of the capital stock not fully paid up, shall be regarded as fully paid and non-assessable, is void as to creditors: Union M. L. Ins. Co. v. Freer Stone Mfg. Co. 97 Ill. 637.
    Mr. William Vocee and Mr. Arnold Heap, for appellee;
    that a plea setting up an entire failure of consideration in the note, is not sustained by proof of .a partial failure of consideration, cited Burnap v. Cook, 32 Ill. 168.
    As to failure of consideration: Richards v. Betzer, 53 Ill. 466; Owings v. Thompson, 3 Scam. 502; Goodrich v. Reynolds, 31 Ill. 490.
    Mere negligence, however gross, is not sufficient to deprive a party of the character of a bona fide, holder of commercial paper; there must be proof of bad faith: 1 Parsons on Notes and Bills, 258; Chapman v. Rose, 56 N. Y. 137; Comstock v. Hannah, 76 Ill. 530; Shreeves v. Allen, 79 Ill. 553; Magee v. Badger, 34 N. Y. 247; Welch v. Sage, 47 N. Y. 143; Seybel v. Nat. C. Bk. 54 N. Y. 288.
    The fraud and circumvention contemplated under Ch. 98, § 11, must be of such a character as to show that it was used in obtaining the making of the note and not in the contract or in the consideration of the note: Murray v. Beckwith, 48 Ill. 391; Hewett v. Johnson, 72 Ill. 513; Conkling v. Vail, 31 Ill. 166; Culver v. H. &L. Bk. 78 Ill. 625; Latham v. Smith, 45 Ill. 25.
   McAllister, P. J.

This action was brought in the court below, by Pausinsky, as the assignee, against Forbes as the maker of a promissory note, bearing date March 5, 1882, whereby Forbes promised to pay Charles Schmidt six months after date, $400. The defendant filed a special plea which, technically speaking, was double, but, from the matters set out, amounts in both aspects to a plea of failure of consideration. In one aspect, the defense was that the note was obtained by false and fraudulent representations made by Schmidt and that plaintiff took the assignment of it with such notice and knowledge, as made that defense admissible as to him. The other defense set out in the plea is entirely independent of any fraud or fraudulent representations on the part- of the payee, and arises upon the following averments: That before the making of said note, Schmidt offered to defendant, to sell to him for the price of $400, five hundred shares, of ten dollars each, of full paid, non-assessable stock of the Germania Mining and Smelting Company, a corporation organized and doing business in, and under the laws of the State of Colorado; that defendant agreed with said Schmidt to purchase said shares of stock at the price aforesaid, and gave to him said promissory note in payment thereof: and Schmidt at the same time indorsed and delivered to defendant a certificate purporting to show that he, said Schmidt, was the owner of five hundred shares of ten dollars each of full paid, non-assessable stock of said company transferable on the books thereof. The plea then avers that said stock was not, and never was full paid, non-assessable stock: but that on the contrary, there had been paid only thirty-three cents and one third of a cent on a share; that all of which facts were well known unto the said Schmidt and unto said Pausinsky, at the time said note was given as aforesaid; and that said Pausinsky, before and at the time he became the assignee of said note, well knew on what consideration said note had been given. The plea then avers that defendant, so soon as he learned the facts, offered to both Schmidt and the plaintiff to surrender and indorse over said certificate, and demanded that his said note be given up, which was refused.

The plaintiff at first demurred to that plea, but afterward asked leave to withdraw his demurrer and reply, which was done. In his replication the plaintiff not only gives the go-by to the broad averment of the plea, as to his knowledge of all the previously averred facts therein, at the time of the giving the note, and did not traverse that averment, and thereby admitted its truth: but expressly admitted the truth of the averment in the plea, that before, and at the time, he became the assignee of said note, he well knew on what consideration said note had been given.

On the trial, before the court, without a jury, the plaintiff gave said note in evidence and rested. The defendant gave evidence showing that the note was given in consideration of the sale, by Schmidt to him of said stock, by the description of full paid, non-assessable stock of said company as set out in the special plea; and that it did not answer that description, that is, that it was not full paid stock at all; also his offer to return the certifícate properly indorsed, and demand, of the surrender of his note. The court below, however, found for the plaintiff and gave judgment for the full amount of the note, to reverse which the defendant prosecutes this appeal.

It is a fundamental rule in pleading, that a material fact asserted on one side, and not denied on the other, is admitted. Simmons v. Jenkins, 76 Ill. 482, and authorities there cited. The averments in the plea of knowledge in the plaintiff, before and at the time he became assignee of the note in suit, of the facts showing a total failure of consideration of such note, not having been traversed by the plaintiff, must therefore' be taken as admitted. If so, then the note in the hands of the plaintiff was subject to that defense. “If, without actual fraud, there is a want or failure of consideration, which would operate as a defense if the transferrer had sued, the transferree, chargeable with notice or knowledge thereof, is open to the same defense, if it be not accommodation paper.” 1 Parsons on Bills and Notes, 258.

Did the facts show such failure of consideration? Schmidt, the payee of the note, agreed to sell to the defendant five hundred shares of ten dollars each, of the stock of the Germania Mining and Smelting Co., by a particular description, viz., that of full paid, non-assessable stock, for the entire price of $400, and the defendant agreed to purchase said five hundred shares at said price, as of that description, and not otherwise. How, in pursuance of that agreement, Schmidt indorses and delivers to defendant a certificate, purporting to show that he was the owner of five hundred shares of ten dollars each of full paid, non-assessable stock of said company, for which the defendant gives the note sued on in payment. But it turns out that such stock did not answer the description by which it was sold; that it was not full paid stock at all, and probably not non-assessable. The rule is, that when a vendor sells an article by a particular description, it is a condition precedent to his right of action, that the thing which he offers to deliver, or has delivered, should answer the description: Benj. on Sales, 2d ed. 487-8; Chanter v. Hopkins, 4 Mees. & Welsb. 399; Wells v. Hopkins, 5 Mees. & Welsb. 7; Shields v. Reibe, 9 Bradwell, 598 and cases cited.

The same rule is traceable in cases in which it has been held that the vendor, who sells bills of exchange, notes, shares, certificates and other securities, is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit or not marketable by the name or denomination used in describing it when the sale is made: Benj. on Sales, 2d Eng. ed. 492; Id. 2d Am. ed. 8 et seq.; Gompertz v. Bartlett, 2 Ellis & B. 849.

The doctrine applicable to both classes of cases is concisely stated in the notes to Cutter v. Powell, 2 Smith’s Leading Cases, 37, thus: “But where the subject-matter of the sale is not inexistence, or not ascertained, at the time of the contract, an engagement that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty but a condition, the performance of which is precedent to any obligation upon the vendee under the contract.” Citing, Chanter v. Hopkins, supra; Barr v. Gibson, 3 Mees & Welsb. 390; and Gompertz v. Bartlett, supra. In this last cited case the sale was of a bill of exchange by the description of a foreign bill; it turned out that it was not a foreign bill, but was in fact drawn in England, and, not having been stamped, was rnrthless. Its real character and qualities were unascertained and unknown to both seller and buyer at the time of the sale. It was held that the buyer was entitled to recover back the consideration paid, as money had and received to his use.

So, in the case in hand, the real character and qualities of the shares were unascertained at the time of the sale; they were offered and sold by the seller and purchased by the buyer, as of a description giving them another and different character and quality, and turned out not to be of such description or quality, but worthless or not marketable by the name, denomination or description, by which they were sold and purchased. It seems to us that a condition precedent of the contract of sale itself, was here unperformed; wherefore the consideration of the note has failed.

Being of opinion that, under the facts admitted by the pleadings and shown upon the trial, the defendant was entitled to judgment, the judgment below will be reversed and the cause remanded.

Judgment reversed.


author: Wilson, J.

text:
    First National Bank of Lanark v. John Scott Eitemiller.
    1. Comparative negligence. — In actions for personal injuries caused by the alleged negligence of the defendant, if the negligence of the plaintiff is slight and that of the defendant gross, and if it so appear when compared with each other, the plaintiff may recover.
    2. Instructions. — The element of comparison is the essence of the rule of comparative negligence, and an instruction which fails to institute a comparison of the negligence of the plaintiff with that of the defendant, is erroneous.
    3. Same. — Where defendant was making some changes in the sidewalk and plaintiff was injured by falling into an excavation made in the sidewalk, and an instruction was given that “it was defendant’s duty to have the work so done as to save and protect the public and all persons using the street or sidewalk from injury,” etc. Held that this was erroneous. Defendant was not a guarantor of the safety of persons using the sidewalk. He was only required to use ordinary and reasonable care in constructing the walk and guarding against danger.
    4. Object op instbuctions. — The object of instructions is to convey to the minds of the jury correct principles of law as applicable to the evidence which has been laid before them and nothing should be given to the jury unless it will promote that-object.
    Appeal from the Circuit Court of Carroll county; the Hon. Josn V. Eustace, Judge, presiding.
    Opinion filed November 16, 1883.
    This was an action on the case, brought by appellee, Eitemiller against appellant, the First National Bank of Lanark, to recover for an injury to his person, occasioned by falling into an opening in the sidewalk adjoining appellant’s building, which opening is alleged to have been negligently left uncovered and unprotected by appellant. The evidence tended to show that in making some changes in the sidewalk and outside stairway leading into the basement of the building, appellant had made an opening in the sidewalk directly by the side of the building about three feet and eight inches long, and thirteen inches wide. The work on the sidewalk was completed on the evening of August 3d, when the opening was covered up by one of the officers of the bank with a two inch plank, five or six feet long and twelve inches wide. The testimony further tended to show that the plank remained there covering the opening a part of the time, and a part of the time appeared to have been displaced, until the morning of the 7th, when it was taken away by the street commissioner.
    It further appeared that on the afternoon of the 7th, appellee, who resided a short distance from Lanark and was engaged in the dairy business, had come into the city and just prior to the accident was standing on the sidewalk near the opening with a jar under his arm, conversing with a man who kept a butter store in the basement of the bank building, and as the two started to go down the stairs, appellee fell into the hole and received the injuries complained of.
    There was a jury trial and the court, at the request of the plaintiff, gave the following among other instructions:

      1. The court instructs the jury that if they believe from the evidence that the plaintiff was injured and sustained damages as charged in the declaration, and that such injury was the combined result of an accident and of a defect or area opening in the sidewalk, and that the damages would not have been sustained but for the defect and open area, although the primary cause of the injury was accidental; still, if the jury believe from the evidence that the plaintiff was exercising ordinary and usual care, prudence and sagacity, and could not, in the exercise of such care provide against the accident and injury, then the defendant is liable, provided the jury believe from the evidence that the defendant was guilty of negligence in not remedying such defect by keeping the area safely and securely covered and guarded. If a barrier, guard or covering was reasonably necessary to prevent injury or accident befalling-into the area of persons traveling on the sidewalk, they exercising ordinary and reasonable care at the time, then it was the duty of the defendant to place a reasonable7 safe, sufficient covering or barrier over the area, or a guard should have been placed to warn people of danger.
    2. The court instructs the jury that when work is contracted to be done which is dangerous [of itself unless guarded, and the employer makes no provision in his contract for its being guarded, and makes no reasonable effort to guard it himself, then he is negligent; and if injury result therefrom, he can not escape liability on the ground that the work was done by a contractor.
    7. The court instructs the jury that where a party is permitted or allowed by a city or other municipal corporation to make, excavate and build areas in the streets or along the sidewalks of the city adjoining to for along the property of the party having or owning such premises, from which the said party is to receive the benefit in light or ventilation to his building or otherwise, the party making such excavation or area is under obligation, and it is his duty to have the work so done as to save and protect the public, and all persons using the street or sidewalk, from injury or harm from the making of such excavation or area, by constructing proper guards and coverings, and the use of all proper means to secure the persons using such street or sidewalk against injury or damage in consequence thereof; and the party making such excavation or area can not escape liability for injuries and damage suffered and sustained by other persons by reason of the negligent and improper construction of the work, and a failure to provide a means of securing persons traveling such street against loss or injury thereby because of being allowed or permitted by the city to make such improvements; nor can they avoid such liability by letting the work to a contractor, or delegating to such contractor their right to control the performance and execution of the work. That a city has no legal light to create and perpetuate a nuisance, nor permit any one else to do so. That while the making excavations and areas for the purpose designated is not in itself a nuisance, and may be allowed and permitted to property owners, by the city, for the improvement of their property, yet they may become such by the improper manner in which they are made and constructed, and the negligence of the parties constructing the same in not properly guarding and providing against injury by reason of their construction; and if the jury believe from the evidence that the defendant made an excavation and opened and constructed an area in the street or sidewalk along its building, in the city of Lanark, for the purpose of lighting and ventilating the same or for any other purpose, and that the said excavation or area was allowed by it to remain open and exposed, and for an improper length of time in a dangerous condition to persons passing along said street or sidewalk, and without proper guards or covering to prevent accident or injury therefrom, and that the plaintiff, in passing along the street or sidewalk in question, and if exercising ordinary care and caution, such as an ordinarily careful person would have exercised under the circumstances and conditions then existing, was precipitated or fell into said area or opening, and was thereby injured and damaged, he is entitled to recover from said defendant for such injuries, the amount the jury may believe from the evidence he has sustained thereby, not exceeding the amount claimed in the declaration.

      There was a verdict and j udgment for the plaintiff for $1,000, and the defendant brings the case here by appeal.
    Messrs. Smith &Lee, for appellant;
    as to instructions, cited Chicago P. & P. Co. v. Tilton, 87 Ill. 547; Cushman v. Cogswell, 86 Ill. 62; Snyder v. State, 59 Ind. 105; Evans v. George, 80 Ill. 51; Newman v. McComas, 43 Md. 70; I. C. R. R. Co. v. Hammer, 72 Ill. 347; Ludwig v. Sager, 84 Ill. 99; Thorp v. Goewey, 85 Ill. 612.
    As to contributory negligence: Cooley on Torts, 674-5; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; Rockford, etc., R. R. Co. v. Byam, 80 Ill. 528; Benton v. Cent. R. R. Co. 42 Ia. 192; Fletcher v. Atlantic, etc., R. R. Co. 64 Mo. 484; Ind., etc., R. R. Co. v. McClure, 26 Ind. 370; Litchfield, etc., Co. v. Taylor, 81 Ill. 590; Cooper v. Cent. R. R. Co. 44 Ia. 134.
    Mr. J. E. Hunter, for appellee;
    that the instructions are not erroneous, cited Haywood v. Merrill, 94 Ill. 349; Stratton v. Central C. H. Ry. Co. 95 Ill. 25; C. B. & Q. R. R. Co. v. Payne, 59 Ill. 534; C. B. & Q. R. R. Co. v. Seirer, 60 Ill. 295; Village of Kewanee v. Depew, 80 Ill. 119; Hale v. Johnson, 80 Ill. 185; Sterling B. Co. v. Pearl, 80 Ill. 251; Teipel v. Hitsendegen, 3 Mich. 82; Morton v. Thubald, 2 Wis. 330.
   Wilson, J.

We are constrained to reverse the judgment below, by reason of errors contained in the instructions given to the jury, at the instance of the plaintiff. It is claimed by the plaintiff that, without fault on his part, he fell into an opening in defendant’s sidewalk, which the latter carelessly and negligently left uncovered, whereby he received the injury complained of. The defendant denies that it was guilty of any negligence, but that on the contrary, the accident occurred through want of care and caution on the part of plaintiff. Evidence was introduced tending to support the theories of the respective parties, as to the weight of which we express no opinion, it being sufficient to say that the facts, as shown, presented a proper case for the application of the doctrine in relation to comparative negligence, as now settled in this State. The rule, on that subject, may be stated thus: In actions for personal injuries caused by the alleged negligence of the defendant, if the negligence of the plaintiff is slight, and that of the defendant gross, and if it so appear when compared with each other, the plaintiff may recover: C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Chi. & N. W. Ry. Co. v. Thorson, 11 Bradwell, 631; Moody v. Peterson, 11 Id. 183. In the latter case Mr. Justice Bailey said, “ The doctrine of comparative negligence is founded upon a comparison of the negligence of the plaintiff with that of the defendant. This element of comparison is of the very essence of the rule. It must not only appear that the negligence of the plaintiff is slight and that of the defendant gross, but also that they are so when compared with each other.”

Such comparison the plaintiff’s first and seventh instruction wholly omits. Again, the jury were told by the first instruction, that if the plaintiff was exercising ordinary and usual care and prudence, the defendant was liable, if the defendant was guilty of negligence, in not remedying the defect by keeping the area safely and securely covered and guarded. This would create a liability if the defendant was guilty of any, the slightest, negligence. In other words, if the plaintiff was guilty of slight negligence, and the defendant was only guilty of equally slight negligence, the plaintiff was entitled to recover. Moreover, the jury were told by the instruction that the defendant was liable, provided they believed from the evidence that the defendant was guilty of negligence in not remedying the defect, and keeping the area safely and securely covered and guarded; using the copulative instead of the disjunctive conjunction, thus making it the duty of the defendant, not only to keep the opening safely and securely covered, but also, as the jury might understand the language, to keep it otherwise guarded. Such an instruction was liable to mislead and confuse the jury.

We see no substantial objection to the plaintiff’s second instruction. Its purpose was merely to inform the jury that the defendant could not shield itself from liability on the ground that the work was done by a contractor whom it had employed to do the work, and we think there was evidence sufficient to make it applicable to the case.

The plaintiff’s seventh instruction is replete with errors of which it will suffice to point out two or three. And first, like the first instruction, it wholly ignores the element of comparative negligence. In the next place it imposes upon the defendant a higher degree of obligation and duty in respect to the protection of the public, or persons, against injury through defects in a street or sidewalk, caused by the party sought to be made liable, than the law requires. The language used is, “ It is his duty to have the work so done as to save and protect the public and all persons using the street or sidewalk from injury,’? etc. Thus making the defendant a guarantor of the safety of persons using the sidewalk. Such is not the rule.

The defendant was required to use ordinary and reasonable care in constructing the walk and guarding against danger; such care as men of ordinary caution and prudence would use under like circumstances of peril: C. B. & Q. R. R. Co. v. Johnson, 103 Ill. supra, and cases there cited; 1 Thompson on Negligence, 102, et seq.

Again, the instruction, like the first, required the defendant to construct both proper guards and coverings. The instruction also contains several different propositions of law, so stated as to be liable to confuse and mislead rather than enlighten the jury. As was said in Baxter v. The People, 3 Gilm. 368, the object 'of instructions is to convey to the minds of the jury correct principles of law, as applicable to the evidence which has been laid before them; nothing should be given to them, unless it will promote that object.

For the reasons above indicated, the judgment of the court below is reversed, and the cause remanded for a new trial.

Beversed and remanded.


author: Bailey, J.

text:
    Jacob Beidler et al. v. Robert H. Fish.
    1. Questions op law. — Questions of law are for the court and it is error to submit tbem to tbe jury or to so frame instructions as to give an apparent license to tbe jury to determine such questions.
    2. Instructions. — Instructions which submit it to the jury to determine wbat acts constitute an unlawful interference with a plaintiff’s possession are improper.
    3. Landlord and tenant — Right op possession. — Where a landlord has a tenant in possession under a lease expiring at a certain time and executes to a third party a lease of the premises to begin at the expiration of the term of the tenant in possession, the right of possession, at the expiration of the first lease, vests in the second lessee.
    4. Cancellation op lease — Surrender op term. — Where a landlord executes to a party a lease, not under seal, of premises to begin at the expiration of the term of the tenant in possession of the premises, and such lease is surrendered by said party before the time for his term to commence, such surrender of tbe lease, if made with the intention of terminating or canceling the tenancy, and if such intention is assented to and participated in by the lessor, is valid as a surrender of the term.
    5. Agency — Instruments under seal. — An agent can execute a sealed instrument for and on behalf of his principal only when his authority so to do is in writing and under seal. Where agents’ authority is sufficient to enable them to execute a parol lease which would he binding upon their principals, their unauthorized use of a seal can not convert such parol lease into a specialty.
    6. Instructions — Evidence.—Where instructions discussed tbe doctrine applicable to sealed instruments and this was based upon and warranted by no evidence, such instructions weredmproper.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Baknum, Judge, presiding.
    Opinion filed November 16, 1883.
    This was an action of trespass brought by Robert H. Fish against Jacob Beidler and four others for breaking and entering the plaintiff’s store and basement and taking and carrying away divers goods, chattels, furniture, etc., of the plaintiff. The defendants among other things alleged that said plaintiff was in possession'of said premises, under a certain lease from defendant, Jacob Beidler, and one Henry Beidler, and justified said trespasses under certain provisions in said lease. Afterward a stipulation was made by the parties that, on the trial of the cause, the defendants should be permitted to give in evidence any matter of defense with the same effect? as though such defense were specially pleaded.
    The controversy grows out of an attempt on the part of the defendants to re-enter and take forcible possession of said premises after the expiration of the term for which they had been let to the plaintiff by said lessors. On the trial, the evidence as to whether the plaintiff held said premises under an oral or a written, lease was conflicting, but the defendant gave evidence tending to show that he was in possession under a certain lease in writing executed by said Jacob Beidler and Henry Beidler to him, bearing date March 21,1881, demising said premises for the term of one year from May 1, 1881, which said lease, after ' covenanting that said lessee would yield up said premises to the lessors at the expiration of said term, cpntained among other things also the following covenant's:
    “ It is expressly undei’stood and agreed by and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day of payment, whereon the same ought to be paid as aforesaid, or if default shall be made in any of the covenants or agreements herein contained, to be kept by the said party of the second part, his executors, administrators and assigns, it shall and may be lawful for said party of °the first part, their heirs, executors, administrators, agent, attorney or assigns, at their election, to declare said term ended, and into the said premises or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying in or upon the same, to expel, remove and put out, using such force as may be necessary in so doing, and the said premises again to re-possess and enjoy as in their first and former estate.
    “And if at any time said term shall be ended at such, election of said party of the first part, their heirs, executors administrators or assigns as aforesaid, or in any other way, the said party of the second part, the executors, administrators and assigns, do hereby covenant and agree to surrender and deliver up the said above described premises and property peaceably to said party of the first part, their heirs, executors, administrators and assigns, immediately upon the determination of the said term as aforesaid; and if he shall remain in possession of the same one day after any such default, or after the termination of this lease in any of the ways above named, he shall be deemed guilty of forcible detainer of said premises under the statute, and he shall be subject to all the conditions and provisions above named and to eviction, and removal, forcibly or otherwise, with or without process of law, as above stated.”
    The trespasses complained of were committed on the 8th day of May, 1882, after the expiration of the term granted in said lease. The evidence at the trial tended to show that some time prior to the expiration of said lease, the lessors, by their agents, Griffin & Dwight, entered into an agreement with Chapin & Gore to lease said premises to them for the term of three years from May 1, 1882, and that a written lease was drawn up in accordance with such agreement, and executed by Chapin & Gore on their own behalf, and by said Griffin & Dwight on behalf of the lessors; but the evidence also tended to show that Chapin & Gore never entered into possession of said premises under said lease, but that on learning, at or shortly before the commencement of their term, that lessors would be unable to put them into possession on the first day of May, surrendered their lease to said lessors, and that said lease was thereupon destroyed, upon the understanding between both parties that the contract of leasing between them should be annulled. The bill of exceptions recites that said lease to Chapin & Gore was read in evidence, but though purporting to embody all the evidence given at the trial, the bill of exceptions contains no copy of said lease, and no statement of its contents.
    At the instance of the plaintiff, the court gave to the jury the following instructions:

      1. “ The court instructs the jury, that this is an action of trespass brought by the plaintiff against the defendants for forcibly evicting him from the premises described in the declaration, and in order to maintain such action as against any defendant, it is only necessary for the plaintiff to prove that he was in the actual and peaceable possession of the property upon which the trespass is alleged to have been committed, and that such defendant unlawfully interfered with such possession, or caused unlawful interference therewith.
    2. “The court further instructs the jury, that when evidence to the contrary is wanting, a person in the actual peaceable possession of premises is presumed to be there rightfully, and no one, not even the owner of the prr !erty, has a right to go upon the premises and forcibly eject i d person in possession, or remove his property therefrom, against his .will, unless the person so entering has' some legal process from a court of competent jurisdiction, authorizing him so to do, or is authorized so to do by the party in possession,-.by license in a lease or otherwise. And even though the possession of land be wrongfully held, as if a tenant willfully hold over after the termination of his lease, this will not justify even the owner of the property in entering and taking possession forcibly against the will of the person in possession, unless the person so entering has legal process or license-and authority as above stated.
    3. “ The jurors are instructed as a matter of law, that any and all persons who incite, encourage, advise or direct unlawful acts, are liable as principals for such acts to the same extent as though they actually committed the acts themselves; and it is also the law, that what one does by an agent is the same as if done by himself; and if the jury believe from the evidence that the defendant, Jacob Beidlc., shortly before the alleged trespasses complained of in the declaration, unlawfully employed or directed the employment of any other person or persons to expel plaintiff from the premises mentioned in the declaration, and that the person or persons so employed unlawfully committed the acts complained of in the declaration in pursuance of such employment, then said defendant, Jacob Beidler, is liable for all such acts to the same extent as though he had done the same acts himself, but is not liable to a recovery in this action unless you believe from the evidence that the acts done or authorized, if authorized by him, were unlawful.
    6. “The jury are instructed as a matter of law, that if a landlord has a tenant in possession under a lease expiring at a-certain time, and executes to a third party a lease of the premises, to begin at the expiration of the term of the tenant in possession, then the right to the possession vests at the expiration of the first lease, in the second lessee; and if the jury believe from the evidence that the plaintiff executed the lease in evidence,!? Ted March 21,1883, and was in possession under it on the TÁth day of April, 1882, and continued in such possession until after the time of the alleged trespasses5 and that on the 17th of April, 1882, the Beidlers, by Griffin & Dwight, their agents, signed said last mentioned lease, and sent it to Chapin & Gore to be signed, and that they, before May 2, 1882, executed it and delivered it to the Beidlers or their agents as a lease accepted and executed by them, the said Chapin & Gore, then Chapin & Gore, and not the Beidlers, were entitled to the possession of the premises on and after the 2d day of May, 1882, and in that case, neither the Beidlers nor their agents had any right on May 8, 1882, to make an entry into said premises, no matter what conditions were in the lease to the plaintiff.
    8. “ The jury are instructed as a matter of law, that the cancellation of or destruction of a lease for a term of years, by the mutual consent of the parties? does not divest the lessee of his term, when the lease is under seal, and all the remedies and rights thereunder to either of the parties are left the same as though the leaie had not been destroyed; and if the jury believe from the evidence that the lease by Beidlers to Chapin & Gore was made, signed and delivered as set forth in the foregoing instruction, its subsequent destruction by tearing it up merely, would not revoke it or impair its validity, or the rights of Chapin & Gore to possession thereunder.”
    Proper exceptions wei’e preserved by the defendants to each of the foregoing instructions, and the jury thereupon found the defendants guilty, and assessed plaintiff’s damages at $650, for which sum and costs the court, after overruling the defendant’s motion- for a new trial, gave judgment for the plaintiff.
    Messrs. E. & A. Yan Buben, for appellants;
    cited Ambrose v. Root, 11 Ill. 497.
    The action guare elauswn fregit can not be maintained where the plaintiff has given the defendant the right to enter: Page v. De Puy, 40 Ill. 506.
    Mr. E. A. Sherburne and Mr. F. L. Salisbury, for appellee;
    as to instructions, cited P. M. & F. Ins. Co. v. Anapow, 45 Ill. 86; City of Chicago v. Scholten, 75 Ill. 468.
    A general exception to a series of instructions is of no avail if any of the instructions are good: Hayward v. Cattou, 1 Bradwell, 577; Haskins v. Haskins, 67 Ill. 446; Lincoln v. Claflin, 7 Wall. 132; Ellis v. The People, 21 How. Pr. R. 356; State v. Chapin, 10 La. An. 458-9; Goodwin v. Perkins, 39 Vt. 605; Bedman v. Malvin, 23 Ia. 296; Davenport Gas Co. v. City of Davenport, 13 Ia. 229; Hart v. Renesselear, etc., R. R. Co., 4 Seld. 37.
   Bailey, J.

The only questions we find it necessary to consider in this case, arise upon the instructions given to the jury at the instance of the plaintiff. The first and third instructions are clearly objectionable in submitting to the jury mere questions of law. The first instruction tells the jury that in order to recover, it was only necessary for the plaintiff to prove that he was in the actual and peaceable possession of the premises upon which the trespass is alleged to have been committed, and that the defendants unlawfully interfered with such possession, or caused unlawful interference therewith. Here it was left to the jury to say what acts constituted an unlawful interference with the plaintiff’s possession. The third instruction in terms submitted to the jury to find, from the evidence, whether defendant Beidler unlawfully employed or directed the employment of any other person or persons to expel the plaintiff from said premises, and whether the person or persons so employed unlawfully committed the acts complained of in the declaration; and again, whether the acts done or' authorized by said Beidler were unlawful. Language more clearly and directly submitting to the jury to determine what was and what was not unlawful, could scarcely be employed.

It is true the court, in the second instruction, attempted to define the rights of persons in peaceable possession of premises, and to point out the circumstances under which it would be wrongful to interfere with or expel them, but the errors in the first and third instructions were not thereby cured. In those instructions no reference is made to the rules of law laid down in the second instruction, and the jury are not limited in determining what was and what was not lawful, to the propositions covered by that instruction. Questions of law are for the court, and it is error to submit them to the jury, or to so frame the instructions as to give an apparent license to the jury, to take the determination of such questions into their own hands.

The sixth instruction holds, and we think correctly, that where a landlord has a tenant in possession under a lease expiring at a certain time, and executes to a third party a lease of the premises, to begin at the expiration of the term of the tenant in possession, the right of possession, at the expiration of the first lease, vests in the second lessee. This is in accordance with the decision in Gazzolo v. Chambers, 73 Ill. 75, where it is held that in such case the tenant alone must bring the action, and that the landlord is not entitled to possession, and can not recover the premises. And.in this case, if it is true that at the time the defendants attempted to re-enter under the covenants in the lease to the plaintiff, there was a valid outstanding lease of said premises from the Beidlers to Chapin & Gore, for the term of three years from the expiration of the plaintiff’s lease, the right of possession was in Chapin & Gore, and they alone were entitled to assert such right as against the plaintiff.

The instruction, however, is erroneous, in assuming that if the lease to Chapin & Gore was once executed by the parties, it continued to be a valid subsisting lease at the date of the attempted re-entry, and in ignoring all the evidence in the case tending to show that, prior to that time, it had been surrendered by Chapin & Gore, and terminated by the mutual assent of the parties. The court seems to have proceeded upon a theory, more fully stated in the eighth instruction, that if the lease was once executed, its subsequent cancellation or destruction, though by the mutual assent of the parties, did not divest Chapin & Gore of the term thereby created.

It is held in England under the Statute of Frauds, that the destruction or cancellation of a lease has no operation as a surrender of the term. It is to be observed, however, that the third section of the English statute provides in terms that no leases of terms of years shall be surrendered, unless it be by deed or note in writing, signed by the party so surrendering, and in this country, in the States where this provision of the English statute has been adopted, the same rule prevails. But in our Statute of Frauds this provision has been omitted, andas was said in McKenzie v. Lexington,4 Dana, 129, where the Statute of Frauds was in this respect identical with ours, “ its omission in our statute, which is substantially copied from the English statute, is evidence of an intention on the part of our legislative to drop this formality in surrenders.” In the case here cited, it is held that a parol surrender of the lease with the possession of the premises would be valid, and upon this point said case is referred to with approval by our Supreme Court in Baker v. Pratt, 15 Ill. 568. If the lease were under seal, it may be that a different rule growing out of its nature and incidents as a specialty would apply, but it is no part of the hypothesis of the sixth instruction that the instrument was executed under seal.

It is true, the cancellation of the lease in this case was accompanied by no surrender of the premises, as in McKenzie v. Lexington, for the very excellent reason that Chapin & Gore had never been in possession, and so far as appears from the hypothesis contained in the instruction, the time for the term to commence may not have arrived when the lease was canceled. The lease was the only tangible thing in their possession which they could surrender, and we see no reason why such surrender, if made with the intention of terminating or canceling the tenancy, provided such intention was assented to and participated in by the lessors, was not valid as a surrender of the term. Apart from the provisions of the Statute of Frauds, the parol surrender of a term is valid, and as was said by Lord Chief Baron Gilbert in Magennis v. McCollogh, Gilb. Cas. 235, The cancellation of a lease was a sign of a surrender before the Statute.”

It follows from what we have said that the eighth instruction also is erroneous. In the-introductory part of the instruction, however, there is an attempt to limit the doctrine announced to cases where the lease is under seal, though, in the subsequent part of the instruction, it is held that if the Chapin & Gore lease was made, signed and delivered as set forth in “ the foregoing instruction,” its subsequent destruction by tearing up, would not revoke it or in any way impair its validity or the rights of Chapin & Gore to possession thereunder. The only preceding instruction in which the execution of the Chapin & Gore lease is referred to is the sixth, and in that no reference is made to its being under seal. The instruction, therefore, is not aided by the general statement of the rule applicable to sealed instruments.

But we are unable to find in the record any evidence that said lease was executed under seal. The lease does not appear in the record, and so we can not, by inspection of the instrument itself, ascertain the manner of its execution. There is evidence tending to show that it was signed by the firm of Chapin & Gore, and that the lessors’ names were subscribed to it by Griffin & Dwight, their agents, but it does not appear that either party affixed a seal to it. But even if Griffin & Dwight, in executing it for their principals, did make use of a seal, the instrument did not thereby become a specialty. An agent can execute a sealed instrument for and on behalf of his principal, only when his authority so to do is in writing and under seal. We find no evidence that the authority of Griffin & Dwight was under seal or even in writing, but it is affirmatively shown to have been merely oral. Their authority was doubtless sufficient to enable them to execute a parol lease, which would be binding upon their principals, but their unauthorized use of a seal could not convert such parol lease into a specialty. So far then as the instruction discussed the doctrine applicable to sealed instruments, it was based upon and warranted by no evidence in the case.

We would not be understood as laying down any rule in relation to the surrender of a term where the lease is under seal, as that question does not arise upon this record, but for the errors in the instructions above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: McAllister, P. J".

text:
    Benn P. Reynolds et al. v. Rosa Anspach.
    1. Jurisdiction — Pinal judgment. — Where an action, of replevin was brought in 1878, and defendants entered their appearance and entered a motion to quash the writ for want of sufficient affidavit, and plaintiff at the same time entered a cross motion for leave to amend such affidavit, and these motions were continued and nothing done by the court until 1882, when the suit was dismissed by the court for want of prosecution, and judgment de retorno and for costs was given against plaintiff. Held, that such judgment of dismissal, etc., was a final judgment, and when the term at which it was rendered had elapsed the court below had no power or authority to $et aside the judgment and re-instate the cause.
    2. Re-instating a cause — Notice.—Where no notice had been given defendants of a motion to set aside a former judgment and re-instate the cause and no plea had been filed by defendants, it was error for the court, in the absence of defendants and their attorney, to impanel a jury to try the issues between the parties.
    Appeal from the Superior Court of Cook county; the Hon. Tfrav Hawes, Judge, presiding.
    Opinion filed November 16, 1883.

      Mr. Jomsr Lyle King, for appellants;
    cited Coursen v. Hixson, 78 Ill. 339; Becker v. Sauter, 89 Ill. 596; Baragwanath v. Wilson, 4 Bradwell, 80.
    Messrs. Coopeb &Plotke, for appellee;
    cited City of Olney v. Harvey, 50 Ill. 453.
   McAllister, P. J".

This was an action of replevin brought July 20, 1878, in the court below, by Rosa Anspach against Brokiski and Reynolds. The defendants duly entered their appearance in the cause Dec. 13, 1878, and entered a motion to quash the writ for want of sufficient affidavit; the plaintiff, at the same time, entering a cross motion for leave to amend such affidavit. These motions were continued and nothing done in the case, until May 18, 1882, when the suit was dismissed by the court for want of prosecution, and judgment de retorno and for costs, given against the plaintiff. At a subsequent term, October 2, 1882, the plaintiff made a motion to have such former judgment set aside, and to have the suit re-instated upon the docket. This was granted. The defendants were in no respect notified that the motion would be made or had been granted. Afterward, and April 21, 1883, without any plea having been filed by either defendant, or their default having been taken for want of plea, in the ab-. sence of defendants and without any notice to them or their attorney, a jury was impaneled and sworn to try the issues, etc., between the parties. A verdict was rendered finding the property in the plaintiff, that defendants had wrongfully taken and detained the same, also assessing the plaintiff’s damages at $86.50. On this verdict the court gave judgment, and overruled the defendants’ motion made at the same term, to set aside such last mentioned judgment, and all the proceedings in said cause, subsequent to the original judgment of dismissal, etc., entered May 18, 1882. The court overruled such motion, and the defendants bring the record here for revision.

We are of opinion that such judgment, of dismissal, etc., was a final judgment, and that, when the term at which it was rendered had elapsed, the power of the court below over the canse had become exhausted, and such court had no power or authority, at a subsequent term, to set the said judgment aside, and re-instate the cause: Lill v. Stookey, 72 Ill. 495; Bank of United States v. Moss, 6 How. U. S. 31; Baragwanath v. Wilson, 4 Bradwell, 80.

But at all events, it was irregular for the court below to entertain such motion to set aside the former judgment,, and to re-instate the cause, without notice to the defendants or their attorney: Rauh v. Ritchie, 1 Bradwell, 188; Lill v. Stookey, supra; McKee v. Ludwig, 30 Ill. 28; Mattoon v. Hinkley, 33 Ill. 208.

We are further of the opinion that there was error in the court below impaneling a jury in the absence of defendants and their attorney, to try the issues between the parties; because no plea having been filed, there was no issue to try; the case was not in a condition to be tried: Adams v. Neeley, 15 Ill. 380; Seavey v. Rogers, 64 Ill. 534.

The only proper way in which the court could proceed, (even if it be conceded that the court had, under the circumstances, any power to act in the case,) was to have had the defendants called and on their failure to appear, to enter their default. In such a case the oath to the ju ry, as well as the action of the court would have been materially different.

The order of the court below entered October 2, 1882, setting aside the former judgment entered May 18, 1882, together with the judgment entered April 21, 1883, will be reversed.

Judgment reversed.


author: Bailev, J.

text:
    Henry J. Hubbard v. United States Mortgage Company et al.
    1. Trusts — Concurrent jurisdiction. — Where money is sought to be recovered from one as trustee, the fact that the cestui que trust has a remedy at law by action for money had and received, will not deprive a court of chancery of jurisdiction.

      2. Same. — Where it was admitted by the bill that complainant, as the holder of a portion of a mortgage debt purchased of the mortgagee, was en« titled to the benefit of the mortgage security, and to share in the proceeds of the mortgage sale and, after deducting the costs and expenses of sale and such disbursements as the mortgagee had made under the stipulations in the mortgage, the residue of said proceeds constituted a fund in the hands of the mortgagee to he applied by it to the payment of the mortgage debt. Held, that complainant has a right to recover against the mortgagee a money decree for his distributive share of the net proceeds; that the mortgagee in executing the power of sale and in receiving and distributing the proceeds of the mortgage security was the trustee of an express power, and especially was this the case after it had transferred to an assignee a portion of the mortgage debt.
    3. Demurrer. — Where the fact that a debt sought to be collected is barred by the Statute of Limitations appears on the face of the bill, advantage may be taken of the bar on demurrer.
    4 Statute oe Limitations — Ron-resident corporation. — A corporation must dwell in the place of its creation, and can not migrate to another jurisdiction. Where it appeared upon the face of a hill that, while complainant’s cause of action arose more than five years before the commencement of the suit, yet the defendant corporation, at the time the cause of action arose, was, and ever since that time had been, a non-resident of the State. Held, that the Statute oí Limitations did not run.
    5. Same — Doing bdsiness by agents. — While a corporation created in one State, which has been continuously doing business in another State by its agents for years, will bring itself during all that time within the jurisdiction of the latter State, yet as there is no legal presumption that this corporation was in this State by its agents in such a manner as to enable it to avail itself of the bar of the Statute of Limitations, nor does such fact appear by the bill, the court is of opinion that its absence is sufficiently alleged to bring the case within the exception in the statute. .
    6. Express trust. — Where money sought to be recovered is held by the defendant as trustee of an express trust, the Statute of Limitations can not commence to run until the trustee disclaims the trust, or assumes a position adverse to the complainant.
    7. Laches. — Mere laches alone, short of the period fixed by the Statute of Limitations as a bar, will not preclude the assertion of an equitable right where the adverse party is not lulled into security by the delay, or prejudiced thereby.
    8. Chancery practice. — Relief which is consistent with the facts stated in the bill will be granted under the general prayer, although not specifically prayed for.
    Error to the Circuit Court of Coolc county; the Hon. William H. Barnom, Judge, presiding.
    Opinion filed November 16, 1883.

      Mr. Charles L. Easton, for plaintiff in error;
    as to the relation of trustee and cestui que trust, cited Perry on Trusts, § 920.
    By the terms of the mortgage on foreclosure, the proceeds of the sale are to be applied on the whole debt: Humphreys v. Morton, 100 Ill. 592.
    The remedy of the complainant is only adequate and.complete in a court of chancery: Hearne v. Hearne, 55 Me. 445; Himes v. Keighblingher, 14 Ill. 469; Dias v. Brunell, 24 Wendell, 8; Pardoe v. Price, 16 M. & W. 450; Bartlett v. Dimond, 14 M. & W. 49; Curtis v. Smith, 6 Blatch. 537; State v. Digges, 21 Md. 240; Dorsey v. Garey, 30 Md. 4S9; Hukell v. Page, 6 Bissell, 183; Brooks v. Brooks, 11 Cush. 18; White v. Sheldon, 4 Nev. 280; Perry on Trusts, § 843; Hill on Trusts, § 42; Story’s Eq. Jur. § 962.
    The Statute of Limitations will be a bar only when the trustee repudiates the express trust by clear and unequivocal acts or words, and claims to hold thenceforth the estate as his own, not subject to any trust, and such repudiation and claims are brought to the notice of the cestui que trust in such manner as to require him to act upon a clearly asserted adverse title: Merriam v. Hassam, 14 Allen, 522; Baker v. Whitting, 3 Lunn. 486; Albretch v. Wolf, 58 Ill. 186; O’Halloran v. Fitzgerald, 71 Ill. 53; Perry on Trusts, §§ 863-4; Bigelow on Estoppel, 3d ed. 427.
    Where a demand is necessary, the Statute of Limitations will not commence to run until a demand is made: Lillie v. Hoyt, 5 Hill, 400; Baird v. Walker, 12 Barb. 298; Hitchcock v. Hitchcock, 13 Barb; 632; Stafford v. Richardson, 15 Wend. 305.
    Messrs.' Dexter, Herrick & Allen, for defendants in error;
    that complainant had a complete and Adequate remedy -at law, cited R. S. 1881, Ch.2; Hancock v. Harper, 86 Ill. 449; Barnes v. Johnson, 84 Ill. 95; Belden v. Perkins, 78 Ill. 449; Claflin v. Godfrey, 21 Pick. 1; Cook v. Basley, 123 Mass. 396; Rogers v. Dashiell, 8 Allen, 343; Pomeroy’s Eq. Jur. 164; Crooker v. Rogers, 58 Me. 339; Catlin v. Birchard, 13 Mich. 110; Eddy v. Smith, 13 Wend. 488; Taylor v. Turner, 87 Ill. 296.
    When courts of law have concurrent jurisdiction with courts of equity and the party proceeds in equity, if barred at law, he will also be barred in equity: Manning v. Warren, 17 Ill. 267; Sloan v. Graham, 85 Ill. 26; Hancock V. Harper, 86 Ill. 445; Kane v. Bloodgood, 7 Johns. Ch. 90; Pratt v. Northam, 5 Mason, 95; Etting v. Marx, 4 Fed. R. 673; Hall v. Russell, 3 Sawy. 515; 2 Story’s Eq. Jur. § 1520; Tiernan v. Rescariere, 10 G. & J. 217; Breckenbridge v. Churchill, 3 J. J. Marsh, 11; Wood on Limitations, § 58; Godden v. Kimmel, 99 U. S. 201.
    Where the Statute of Limitations is a bar to a complainant’s case in equity and this bar appears on the face of his bill, advantage may be taken of it by demurrer: Ilett v. Collins, 103 Ill. 74; 1 Dan. Ch. Pr. (5th ed.) 560-1.
    A plaintiff who relies on an exception from the Statute of Limitations must plead and prove it; the defendant did not negative the exception: Wood on Limitations, 17; Bevan v. Cullen, 7 Barr. 281; Moore v. Capps, 4 Gilm. 315.
    If the company had agents here who could have been served with process, the Statute of Limitations would run in its favor: Penn. Co. v. Sloan, 1 Bradwell, 364; McCabe v. R. R. Co. 14 Rep. 450; Guinn v. I. C. R. R. Co. 14 Rep. 463.
    Complainant is barred by his ladies: Furlong v. Riley, 103 Ill. 628; Story’s Eq. Pl. §§ 484, 751; Lansdale v. Smith, 15 Rep. 385; Munn v. Burges, 70 Ill. 606; Dempster v. West, 69 Ill. 613; Burr v. Borden, 61 Ill. 389; Cox v. Montgomery, 36 Ill. 396.
   Bailev, J.

The writ of error in this case brings up for review the decree of the court below, sustaining a demurrer to and dismissing the bill for want of equity. So far as material to the questions urged by counsel in their arguments, the case made by the brief is briefly as follows: On the 2d day of August, 1872, Almon G. Sanford being indebted to the United States Mortgage Company, a corporation created by the legislature of the State of Hew York, in the sum of §10,000, for money loaned, executed and delivered to said company, as evidence of said indebtedness, his bond in the penal sum of $20,000, conditioned for the payment to said conrpany, its successors or assigns, said principal sum of $10,000 on the first day of October, 1877, with interest at the rate of nine per cent, per annum, payable semi-annually, on the 1st day of April and October in each year, until said principal sum should be paid, said interest being further evidenced by eleven interest coupon^, the first for $150 and the residue for $450 each.

To secure the payment of said bond and coupons, said Sanford and wife, on said 2d day of August, 1872, executed to said mortgage company a mortgage upon certain real estate in Cook county, Illinois. In said mortgage it was provided that if said company should expend any money, either in effecting insurance on the mortgaged premises, or in- payment of taxes or assessments, or in redemption from sales therefor, or to protect the title or possession of said premises, or any part thereof, the moneys so paid should be a charge on said premises, and be secured by said mortgage, and draw interest at the rate of ten per cent, per annum. Also, that if default should be made in the payment of any of said interest for one month after the same should become due, according to the condition of the bond, the ■ principal sum, together with all arrearages of interest thereon, should, at the option of said company, thereupon become due and payable, and 'collectible immediately or at any time thereafter, and in case of default in the payment of the principal, or of the interest, or any part thereof, at the time the same should become due according to the condition of the bond, said company, its successors, or assigns, might sell said mortgaged premises at public auction after giving certain notice, and out of the proceeds pay: (1) the costs, charges and expenses of the advertisement, sale and conveyance; (2) all moneys paid by said company for insurance, taxes, assessments, or to protect the title or possession of said premises; (3) all of said principal money and accrued interest thereon that should, at the time of the sale, remain unpaid, and (4) render the surplus, if any, to said Sanford, his heirs or assigns.

On the fourth day of December, 1874, Henry .J. Hubbard, the complainant, purchased of said mortgage company, coupons numbered 4 and 5, maturing respectively the first day of April and October, 1S74, paying said company therefor the sum of $954.43, the amount then due on the same, and received said coupons from said company, said coupons being so purchased by the complainant on the faith of their being secured by said mortgage. Said company afterward, claiming that default had been made, for more than one month, in the payment of the eighth interest coupon, which matured April 1, 1876, and claiming to act under the power contained .in said mortgage, elected to declare the whole of said mortgage due, and advertised the mortgage property for sale, and sold the same on the 28th day of December, 1876, to Samuel D. Babcock, its president, for $10,000, and caused a deed of said property to be executed to said Babcock, said deed being recorded January 30, 1877. The complainant is still the owner of said coupons .4 and 5 and has owned them ever since he purchased them, and no part of them has ever-been paid or satisfied. Shortly before filing the bill, the complainant demanded payment of said coupons of said mortgage company, which was refused, the company claiming that the complainant did not purchase said coupons, but acted as the agent of said Sanford, in paying to said company the amount due thereon. The purchase of said premises, at said mortgage sale, by said Babcock, as the bill alleges, was made by him for and on behalf of said mortgage company, and the title thereby obtained is held by him for said company, The bill further alleges that there was no provision in said mortgage empowering the mortgagee to become a purchaser at said mortgage sale, and claims that the sale for that reason was inoperative, and conferred no title upon the purchaser.

The bill as originally filed, prayed that the complainant be decreed to have a lien on the mortgaged premises prior to that of the mortgage company, and that said Sanford be decreed to pay the amount due the complainant, and in default of such payment that the mortgaged premises be sold, and the proceeds applied to the satisfaction of the same; or if it should be deemed more equitable that an account be taken of the amount, the mortgage company and the complainant be allowed to pay the same, and on such payment that said Babcock and said company be ordered to convey to the complainant their interest in said premises, and that said premises be sold to pay the amount due the complainant, and the amount so paid by him to said company and costs, and that the defendants be foreclosed of their equity of redemption and for such other or further relief as might be equitable. An amendment to the bill was afterward filed, charging the insolvency of said mortgage company, and alleging a fraudulent conspiracy between said company and said Babcock to acquire title to said premises in the manner stated in the bill, with the intention of cheating the complainant out of the amount due him, and praying for a decree against said Babcock therefor.

• Counsel for the appellees urge in support of the decree, 1, that the complainant is shown by the bill to have an adequate and complete remedy at law, and therefore, that a court of equity has no jurisdiction, and 2, that upon the face of the bill, the complainant’s action appears to be barred, first, by the Statute of Limitations, and secondly, by his laches.

Counsel have limited their discussion of the case to the complainant’s right to recover against the mortgage company a money decree, for his distributive share of the net proceeds of the mortgage sale, and we shall, therefore, consider the sufficiency of the bill in that aspect alone, expressing no opinion as to whether the complainant has shown himself entitled to any portion of the other relief specifically prayed for.

Taking the averments of the bill as true, and they are so admitted by the demurrer, there can be no doubt that the complainant, as the holder of a portion of the mortgage debt, was entitled to the benefit of the mortgage security and to share in the proceeds of the mortgage sale. After deducting the costs and expenses of sale and such disbursements as the mortgagee had made under the stipulations in the mortgage, the residuo of said proceeds constituted a fund in the hands of the mortgagee to be applied by it to the payment of the mortgage debt. About this there seems to be no dispute. The question is, can the complainant recover his share of said, fund in equity, or must he resort to his action at law for money had and received?

We are not prepared to say that an action at law will not lie. It is to b‘e observed, however, that the amount to which the complainant is entitled, so far as appears is still unascertained, and can only be arrived at upon an accounting with the mortgage company in respect to the costs, expenses and disbursements it is entitled to deduct before making distribution, and this fact is urged as a serious obstacle in the way of maintaining such action. But whether such action could be maintained or not is by no means decisive of the jurisdiction. of equity. The mortgage company in executing the power of sale and in receiving and distributing the proceeds of the mortgage security, was the trustee of an express trust. Especially was this the cise after it had transferred to an assignee a portion of the mortgage debt. It then became charged with the duty, on converting the security into cash, of administering the proceeds, not for itself alone but also for the benefit of its assignee.

The jurisdiction of courts of chancery in cases of trusts was originally exclusive. Courts of law in many cases, however, now afford a remedy by means of the equitable action for money had and received, where the remedy was originally in equity only. But the assumption of this jurisdiction by courts of law has not taken it away from courts of equity. In this respect their jurisdiction is now concurrent. It was so held in McCrea v. Purmort, 16 Wend. 460, on bill filed to recover of the defendant certain moneys which he had received as a trustee of the complainant. Mr. Justice Co wen, in delivering the unanimous opinion of the court of errors, says: “ It is objectecf that the complainant had an adequate remedy at law. I need hardly say that the argument in that form is far from precluding relief by bill in equity. If the complainant had a remedy at law by action, for money had and received, which I think he had, yet equity has a clear concurrent jurisdiction. That is founded on the fact that McCrea took the money as a trustee. The action for money had and received is in the nature of a bill in equity. There are numerous cases wherein courts of equity and law have proceeded upon the same ground to adminster each its own appropriate form of redress. There can not be a doubt that this is one of those cases.” In Varet v. New York Ins. Co., 7 Paige, 560, a cargo upon which the defendant had written a policy was seized under the Berlin and Milan decrees and condemned. The complainant and defendant having adjusted the loss at $5,000, compensation to that amount was made by the French government and paid over to the defendant. On bill filed to recover said money from the defendant, it was objected that the complainant’s remedy was at law, but it was held that although an action for money had and received might lie, still the complainant had his remedy in equity, since the defendant, receiving the fund under such circumstances, held the same as a trustee for the complainant. In deciding the case, Chancellor Walworth said: “ The equitable action of assumpsit is now allowed in many cases of this kind, where the remedy originally was in equity only. But the fact that a remedy now exists at law in such cases does not deprive this court of its ancient jurisdiction to grant relief here. Or, in the language of an English Chancellor, this court is not at liberty to give up its jurisdiction because courts of law have fallen in love with it.” The case was afterward affirmed by the court of error, on appeal, where the same doctrine was again announced. 24 Wend. 505. The present case does not differ in principle from those above cited, and we must therefore hold, that the bill makes a case within the jurisdiction of a court of chancery.

Is the complainants’ suit barred by the Statute of Limitations? Where the fact that a debt sought to be collected is barred by the Statute of Limitations appears on the face of the bill, advantage may be taken of the bar on demurrer: Ilett v. Collins, 103 Ill. 74. Does such bar appear on the face of the bill in this case? The mortgage sale is averred to have been made by the defendant on the 28th day of December, 1876, and the bill was not filed until May 5, 1882, more than five years thereafter. But if it is assumed that the complainant’s claim might be barred in five years, the bill shows that the defendant is a corporation created by the legislature of the State of Hew York. It necessarily follows that it is a resident of that State, for as held in Bank of Augusta v. Earle, 13 Pet. 519, it must dwell in the place of its creation, and can not migrate to another jurisdiction. It thus appears upon the face of the bill that while it is true that the complainant’s cause of action arose more than five years before the commencement of the suit, yet the defendant, at the time the cause of action arose, was, and ever since that time has been, a non-resident of this State, thus bringing the case within the exception provided for in the eighteenth section of the statute. True, if the corporation had been continuously doing business in this State by its agents during the entire five years, thus bringing itself during all that time within the jurisdiction of the courts of this State, the statute would, notwithstanding its corporate non-residence, have run against it: Pennsylvania Co. v. Sloan, 1 Bradwell, 361. But there is no legal presumption that it was in this State by its agents in such manner as to enable it to avail itself of the bar of the statute, nor does such fact appear by the bill, and we must therefore hold that its absence is sufficiently alleged to bring the case within the exception in the statute.

We are, however, inclined to the opinion that, as the money sought to be recovered is held by the defendant as trustee of an express trust, the statute could not commence to run until the trustee disclaimed the trust, or assumed a position adverse to the complainant, and this was not done, so far as appears by the bill, until about two weeks prior to the commencement of the suit, when the complainant alleges that he demanded payment. A question may also arise as to whether the complainant’s cause of action does not arise upon the stipulations of the mortgage itself, so as to be upon a written contract within the meaning of the sixteenth section of the Statute of Limitations, and so subject to the limitation of ten years.

What we have already said disposes also of the question of laches. As held in Gibbons v. Hoag, 95 Ill. 45, mere laches alone, short of the period fixed by the Statute of Limitations as a bar, will not preclude the assertion of an equitable right, where the adverse party is not lulled into security by the delay, or prejudiced thereby. Nothing appears showing that the defendant was or could have been prejudiced by the delay, and laches, therefore, can not be interposed as a defense.

It is further insisted that the prayer of the bill is not sufficient to warrant a decree in favor of the complainant for the payment to him of his proportion of the proceeds of the mortgage sale. It is true that such decree is not specifically prayed for, but the bill contains a general prayer for relief, and under that prayer, such decree may properly be granted.

Thus, in Stanley v. Valentine, 79 Ill. 544, it was held that relief which is consistent with the facts stated in the bill, will be granted under the general prayer, although not specifically prayed for. See, also, Isaacs v. Steel, 8 Scam. 97; Bruner v. Manlove, Id. 339; Bryan v. Primm, Breese, 59; Curyea v. Berry, 84 Ill. 600.

For the error of the court below in sustaining the demurrer to the bill, the decree will be reversed and the cause remanded.

Decree reversed.