text:
    Fenton W. Booth et al., Appellees, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Appeals and errors—when freehold not involved. Eeld, in an action of trespass involving real estate, that in the absence of a plea of liberum tenementum, a freehold was not involved.
    2. Appeals and errors—when errors considered notwithstanding freehold may be involved. If all of the issues in a cause do not involve a freehold and errors are assigned some of which do and some do not involve a freehold, the Appellate Court will consider that the appellant by appealing to the Appellate Court has waived any question of freehold which may have been involved and will consider the remaining assignments.
    Action in case. Appeal from the Circuit Court of Clark county; the Hon. E. B. E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed June 4, 1910.
    Conger & Conger, for appellant; L. J. Hackney, Frank L. Littleton and Golden & Scholfield, of counsel.
    A. G. Poorman and Davison & Bartlett, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The declaration in this case contains three counts. The first count alleges, that whereas, the defendant was in possession of certain described premises as tenant of the plaintiffs, it wrongfully contriving etc. to injure the plaintiffs in their reversionary interests therein, while the same were in the possession of the defendant• as aforesaid, on, to wit: July 17, 1907, wantonly tore down, demolished and carried away a frame depot of the value of $1000, then and there being on said premises and converted the same to its own use. The second count alleges that as the defendant was seized of the same premises under and pursuant to a certain deed therefor, therein set forth in haec verba, executed and delivered by Lyman and Fayette A. Booth to the Danville and Southwestern Bailroad Company, whereby the defendant became bound to use and occupy said premi.ses for railroad depot purposes, and upon ceasing to so use and occupy said premises the same were to at once revert to the said Lyman Booth, his heirs and assigns; that said Lyman Booth afterwards died without assigning said premises, and the plaintiffs are his only children and heirs at law; that on or about July 17, 1907, the defendant ceased to use and occupy said premises for said railroad depot purposes, and afterwards tore up and removed its railroad tracks leading thereto, whereupon plaintiffs caused a notice to be served upon said defendant that they had elected to assume their rights under said deed and demanding immediate possession of said premises; that the defendant notwithstanding its agreements and covenants in said deed contained continued in possession of said premises as tenant by its own wrong and at the sufferance of plaintiffs and contriving wrongfully and wilfully to injure the plaintiffs in their reversionary estate and interest in and .to said premises, did, on the day aforesaid and on divers other days thereafter, wrongfully and wilfully tear down and destroy a certain frame building thereon formerly used for railroad depot purposes of the value of $1000, and carried away and converted the same to its own use, etc. The third count alleges that on, to wit: July 17, 1907, the defendant with force and arms entered the close of the plaintiffs, being the premises before described, and then and there tore down and destroyed a certain frame building thereon of the value of $1000, and carried away and converted the same to its own use, etc. To this declaration the defendant pleaded the general issue. The cause was tried by the court without a jury upon a stipulation of facts, as follows:—

“First, on the 18th day of December, A. D. 1879, Lyman Booth and Fayette A. Booth, his wife, executed, acknowledged and delivered to the Danville and Southwestern Railroad Company of the State of Illinois, a deed for certain lands therein described, which said deed is in the words and figures following, to wit:—

“ ‘The grantors, Lyman Booth, and Fayette A. Booth, his wife, of Marshall, Illinois, for and in consideration of the advantage which may arise to them by reason of the erection and maintenance of a depot landing on the premises hereinafter described, as well also the sum of one dollar in hand paid, do hereby convey and warrant to the Danville and Southwestern Railroad Company of the State of Illinois, the following described premises, to wit: Lot Three (3), in Block Thirty-seven (37) in the original Town of Marshall, in Clark County, Illinois, and it is expressly agreed between the said grantors and grantee that in case said premises shall cease to be used and occupied by said grantee, its successors and assigns, for railroad depot purposes, then the title to the same shall revert to the said Lyman Booth, his heirs and assigns and that such right of reversion is a part of the consideration of this conveyance. Dated this 18th day of December, A. D. 1879.

Lyman Booth (Seal)

Fayette A. Booth (Seal)

Acknowledge before Harrison Black December 18th, 1879. Filed for record Jan. 5th. 1880.’

“Second, that the said Danville and Southwestern Railroad Company took possession of said premises, built thereon a depot building during the year 1880 and remained in possession thereof and used the same as a depot building until about the year 1889, at about which time the defendant in this case, the Cleveland, Cincinnati, Chicago and St. Louis Railway Company succeeded in a legal manner to the rights and duties of the said Danville and Southwestern Railroad Company of the State of Illinois and continued to use said premises and said building as depot premises and building up to the time when the present controversy between the plaintiff and the defendant began as hereinafter set forth.

“Third, that in the summer of 1907 the said defendant Company made a new track for its railroad through Marshall, Illinois, in the neighborhood of one half mile east of the old depot, erected there a new depot building and on the 17th day of July, A. D. 1907, removed the business of the railroad from the said old depot building to the new and has continued to occupy the new depot building ever since.

“On the 17th day of July, A. D. 1907, Edwin Booth, N. T. Booth and Fenton W. Booth, children and only heirs of Lyman Booth and Fayette A. Booth, the grantors in the aforesaid deed, and both deceased prior thereto, caused the following notice to be served upon H. A. Newberry, the station agent of the said defendant at Marshall, Illinois, by delivering to him a true copy of the same, which is in words and figures as follows:

‘To the Cleveland, Cincinnati, Chicago and St. Louis Ry. Co., And to whom it may concern:—

‘You are hereby notified that in consequence of abandonment and cessation to use and occupy the premises now occupied by you as a depot landing the station of said company as provided in the deed of Lyman Booth and Fayette A. Booth, his wife, to the Danville and Southwestern By. Co. and recorded in the recorder’s office of Clark County, Illinois, in Volume 25 of Deeds on page 211, being Lot three (3), in Block thirty-seven (37), in the original town (now city) of Marshall, Illinois, the undersigned heirs of Lyman Booth, deceased, grantor aforesaid, have elected to declare a forfeiture of your right and title to said premises, and we hereby demand the immediate possession of the premises aforesaid.

‘You are further notified that we claim the full title and ownership of all buildings erected and now situated on said premises and you are hereby notified and ordered not to remove, destroy or injure the same in any way or manner.

‘Dated at Marshall, Illinois, this 17th day of July, A. D. 1907.

‘By Davison & Bartlett,

Their Attorneys.

Edwin Booth,

N. T. Booth,

Fenton W. Booth.’

“Fourth, that the track by this original depot building from the south connecting with the new line was finally tom up past the depot the day before the building was destroyed which depot was torn down on the 13th day of November, A. D. 1907.

“Fifth, that on the 13th day of November, 1907, an extra crew of carpenters working for the defendant, appeared to tear down said building and remove the same upon which the plaintiffs caused the following notice to be delivered by the constable to J. Toops in charge of said crew, which is in words following, to wit:

‘To the Cleveland, Cincinnati, Chicago & St. Louis Ry Co.

‘You are hereby notified that the undersigned claim to be the owners in fee of Lot three (3), Block 37 in the original town (now city) of Marshall, Illinois, and that the property and buildings belong to them.

“You are further notified that the undersigned have caused a suit in forcible entry and detainer to be commenced before Benson Martin, a Justice of the Peace, in and for the County of Clark and State of Illinois, for possession of said premises and will take such other steps as may be necessary to procure their rights therein and you are hereby notified and commanded to stop tearing down and razing the building on said lot, and that in event you shall so proceed to tear down and demolish the same an action will be brought in the Circuit Court of the proper county to recover the value thereof.

‘Dated at Marshall, Illinois, this 13th day of November, A. D. 3907.

‘By Davisox & Bartlett,

Their Attorneys.

Edwih Booth,

Fehtoh W. Booth,

N. T. Booth.’

“That said crew thereupon tore down and removed said building.

“It is agreed that said building at the time it was removed was worth $350.

“Sixth: It is further stipulated, that after the office of the station was removed from the old depot to the new depot on the 17th day of July, 1907, the depot was not used for loading or unloading passengers or freight. That a short time prior to the 11th day of November, 1907, a certain crew of laborers began tearing up the remaining portion of said track by the old depot, and deposited therein their tools, whereupon the plaintiffs commenced a suit in Forcible Entry and Detainer against defendant before Benson Martin, a Justice of the Peace, which suit was begun on the 11th day of November, 1907, the summons returnable on the 16th day of November, 1907.

“That one, H. A. Newberry, was the station agent of the defendant at Marshall, Illinois, and that when he as such station agent removed from the old to the new depot on July 17, 1907, he left in the old depot some of the old records of the defendant’s business, together with a few boxes of unclaimed freight, which boxes were a few days before the old depot was torn down, removed to the new depot, and the old records were burned and destroyed at the same time. He, as such agent, retained the key of the old depot building, and kept such building locked until it was torn down, when he sent such key in the office of the defendant at Mt. Carmel, Illinois.

“The old depot building was torn down November 13th, 1907. The material ivas hauled down to the new depot, and used by the defendant company, part in erecting oil house and privy at Marshall, Illinois; part in Paris, Illinois, in making water tank, and part in Ernest, Illinois, and balance at other places on the line.”

The trial resulted in a finding and judgment against the defendant for $350, to reverse which judgment the defendant prosecutes this appeal.

It is suggested on behalf of the plaintiffs that this appeal is improperly taken to this court because a freehold is involved. If the defendant had filed the plea of liberum lenemenlum and issue had been joined on such plea a freehold would have necessarily been involved. Weidner v. Lund, 105 Ill. App. 454; I. C. R. R. v. Hatter, 207 Ill. 88. Defendant however did not file such a plea. Furthermore, some of the errors assigned upon the record embrace matters which this court has jurisdiction to consider and determine, and the defendant by appealing to this court must be held to have waived any question of freehold which may have been involved in the propositions submitted to the trial court. Bennett v. Millard, 239 Ill. 332.

The first proposition of law submitted by the defendant to be held as the law of the case and which was so held by the trial court is, as follows:

“The court holds as a matter of law that if the business of the public required the defendant to construct a new depot at a place other than the one mentioned in the deed of Booth and wife to the Danville & Southwestern Railway Company of date December 18,1879, and to abandon the use of the said depot grounds in said deed mentioned, that then the said defendant had the right to remove all its property of any and every kind from the said depot grounds in said deed mentioned, at any time before it abandoned said grounds or within a reasonable time thereafter.”

Applying the law as held by the court in the proposition submitted by the defendant to the facts as stipulated, the finding and judgment of the trial court was not unwarranted. By this proposition the right of the defendant to remove the building in question was made to depend upon whether or not such building was removed before defendant abandoned the premises or within a reasonable time thereafter, and the court was clearly justified in finding that the defendant after it abandoned the premises had permitted an unreasonable length of time to elapse before it removed the building. The contention of defendant that by using the building upon the premises for the storage of unclaimed freight and some valueless records it was using the same “for railroad depot purposes” within the meaning of the deed, does not merit serious discussion.

Within the jurisdiction of this court to consider and determine the questions raised upon this record, there is no error therein, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    E. R. Darlington Lumber Company, Appellant, v. Amanda Burton et al., Appellees.
    Mechanic’s liens—when fee as well as leasehold interest subject to. If the owner of the fee in a lease authorizes the making of improvements, the fee is subject to a lien in so far as improvements are permanent in character and inure to the benefit of the owner, but in so far as such improvements are temporary and subject to removal by the lessee, a lien should not. be awarded as against the fee.
    Mechanic’s lien. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 26, 1910.
    C. C. Terry and George V. Reynolds, for appellant.
    ■.Walker & Woods, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree rendered in a proceeding by appellant to- establish a mechanic’s lien. The facts disclosed by the record, briefly stated, are as follows: On December 9, 1905, Amanda Burton and others, hereinafter designated as the Burton heirs, being the owners in fee as tenants in common of a tract of about 40 acres of land and another of about 120 acres, in the vicinity of Gillespie, Macoupin county, by written lease demised said premises to L. B. Armstrong and R. O. Isaacs for the term of five years. The annual rent reserved for the former tract was $240 per year, payable on January first of each year, and the taxes, and for the latter tract $360 per year payable on July first of each year.

The lease further provides that the premises should be used for park purposes, and that the lessees might improve the same, and should have the privilege of building a dam to form a lake, also roadways, driveways and either permanent or temporary buildings upon the premises; that upon the termination of the lease either by forfeiture or expiration the lessees or their successors should have the right to remove from said premises any buildings or fixtures they might erect thereon, if they so elected; that the nonpayment of rent should operate as a forfeiture of the lease, and that the lessors might at their election enter into and take possession of the premises; that said lease might be extended or that the lessees should have the privilege of purchasing the premises upon certain terms and conditions, and that the lease should be binding upon the heirs, executors and administrators of the parties. At the time of the execution and delivery of the lease, a corporation known as the Gillespie Park Amusement Company was being organized by Armstrong, Isaacs and others, and the lease was taken for the benefit of such proposed corporation, although the lessors had no knowledge of such fact. When the corporation was fully organized the lease was delivered to its officers, but no formal assignment thereof was made to the corporation.

The company entered into possession of the premises, and in the spring and summer of 1906 improved the same as provided in the lease, by building a dancing pavilion, skating rink, band stand, ice cream stand, and also by the construction of a dam to form a lake, purchasing the materials therefor from the appellant, E. E. Darlington Lumber Company, except the paints, which were furnished by the Behrens Drug and Mercantile Company. The rent was paid to and including the installment which fell due January 1, 1907, but the subsequently maturing rent was not paid. The lessees also failed to pay the taxes on the forty acre tract for the years 1906 and 1907, and the same were paid by the Burton heirs.

The present bill was thereafter filed by E. E. Darlington Lumber Company against the Burton heirs, Armstrong, Isaacs, the Gillespie” Park Amusement Company and the Behrens Drug and Mercantile Company, for the purpose of establishing a lien on said premises for the unpaid balance of its bill, alleging the facts substantially as above set forth, and further alleging that $460 of the materials furnished by it were uséd in the construction of a dam which was an improvement to said premises not of a nature to be removed, nor susceptible of being removed. Answers1 were filed'by all defendants. A cross-bill was filed by the Burton heirs, alleging the non-payment of rent as above set forth, and praying that the rights of thé complainant, if any, in said premises, and in the improvement of the leasehold interest be made subject and subordinate to their claim for rents. An answer was filed to the cross bill, and on January 16, 1908, a decree was entered finding the amount due E. B. Darlington Lumber Company for materials furnished to Gillespie Bark Amusement Company to be $1077.90, with interest from January 1, 1907; that there was due the Behrens Drug and Mercantile Company $55.75 with interest from January 1, 1907; that a lease was executed and delivered as above stated, and possession taken thereunder; that the premises were improved by the Gillespie Park Amusement Company under the lease; that the rent was paid to and including the installment which fell due January 1, 1907; that subsequently accruing rent had not been paid; that taxes upon the forty acre tract aggregating $68.68 which should have been paid by the lessees had been paid by the Burton heirs.

A lien was decreed in favor of E. B. Darlington Lumber Company and Behrens Drug and Mercantile Company, for the amount of their respective claims, but such lien was restricted to the leasehold interest in the premises and improvements thereon, and the decree expressly found that apart from títe leasehold interest and improvements there was no lien on the interest of the Burton heirs in the premises. The decree further provided that if such payments were not made within thirty days, the master in chancery should sell the leasehold interest and improvements, but that the purchaser or purchasers at such sale should have no rights in said premises or said improvements different or greater than the lessees in said lease, or their assigns, would have, were not such sale made, and ordered the master in chancery to bring the money realized from the sale into court to abide further orders. To reverse said decree this appeal is prosecuted by the E. R. Darlington Lumber Company.

It is contended by appellant that the Burton heirs, having by the express terms of the lease authorized the improvements to be made and placed upon the premises, by virtue of section 1, of the statute entitled “Liens” (R. S. 1908, page 1363), thereby subjected their fee simple interest therein to a lien for the materials furnished for such improvements and that the chancellor erred in not so decreeing.

In Brokaw v. Tyler, 91 Ill. App. 148, the lease to the premises upon which improvements were made, authorized the tenant to make improvements, and notwithstanding it was stipulated that such tenant should keep the premises free of all liens on account of such improvements, it was held that the lien attached to the fee. In Reliable P. & H. Co. v. Dallenbach, 145 Ill. App. 473, in which the lease to the premises provided that the building situated thereon should be used as a theater only and that the lessee should have the privilege at his own- expense to make alterations and repairs to the building, we held that a lien for labor and materials in remodeling and repairing the heating and plumbing system necessary to fit the building for use as a theater, was enforceable against the fee title to the premises. Neither of the leases involved in the foregoing cases contained any provision as to the ownership of the improvements authorized, upon the expiration of the term granted.

In Lumber Co. v. Jones, 187 Ill. 203, and Electric Co. v. Amusement Co., 236 Ill. 452, it was held that when the owner of the fee of leased land consents that the lessee shall make improvements which are by the terms of the lease to become the property of the lessor upon the termination of the lease, by expiration or otherwise, he thereby subjects his interest to mechanic’s liens for such labor and materials as may be furnished for such improvements.

Henry v. Miller, 145 Ill. App. 628, was a bill to enforce a lien upon the premises for repairs made by the lessee where the lease provided that the lessee should make such improvements and that the same should become the property of the lessor at the expiration of the lease. We there held that in view of the provisions of the lease referred to, the complainant became entitled under the statute to a lien upon the premises.

We do not think the foregoing authorities are wholly controlling in the present case, for the reason that it does not appear that all of the Burton heirs had actual knowledge that the improvements were being made as provided by the lease. Appellant must therefore rely solely upon the provision of the lease authorizing the improvements, which provision must be considered in connection with the further provision that any building or fixtures that might be erected during the term of the lease could be removed at its termination by the lessees, or their successors or assigns. The theory upon which the mechanic’s lien laws are based, is that the owner of the fee is benefited by buildings and improvements erected on the premises, they becoming a part of the realty, and that he in right and justice should pay for this accruing benefit, when it was induced or encouraged by his acts. It is founded upon the equitable doctrine that as the land is enhanced in value, the owner of the fee should pay for the improvements when he encouraged them. Boisot on Mechanic’s Liens, page 4. Where, however, the lease provides that any buildings and improvements that are erected on the demised premises by the lessee, may be removed by him at the expiration of the term, such buildings and improvements as are temporary in character and capable of being removed, do not become part of the realty, but remain personal property. The fee is in no way enhanced in value, and the owner can derive no benefit therefrom. In such case there can be no sound, equitable basis for requiring the owner to pay for the same, and the lien of the material-men, if any exists, extends only to the leasehold estate. Central R. R. Co. v. Shiver, 125 Ga. 218; Rice v. Culver, 172 N. Y. 61. For the foregoing reasons, we are of opinion that as to materials furnished for such improvements as were susceptible of removal under the terms of the lease, at the expiration of the term, the chancellor properly decreed a lien upon the leasehold interest only. The evidence shows, however, that a part of the materials furnished by appellant of the value of $460 were used in the construction of a dam across a stream of water whereby an artificial lake was created. It is obvious that such improvement could not be removed from the premises except at considerable expense, and without rendering the material used practically worthless, and totally destroying the lake. The privilege granted to remove such materials at the termination of the lease was therefore of no practical value or advantage to the lessee, and may be regarded as nugatory, and the improvement being incapable of removal necessarily inured to the owners of the fee of the premises. The Burton heirs having authorized the erection of improvements which they must be held to have known to be of that character and which of necessity would remain upon the premises at the expiration of the lease, and thus inure to the benefit of the then owner of the fee, cannot be permitted to invoke the removal clause in the lease to escape liability for the cost of the same.

It is insisted by the Burton heirs that inasmuch as the Amusement Company was not a party to the original lease, the express authority to make the improvements given to the original lessees cannot be held to have extended to the Amusement Company so as to bind the Burton heirs, and that it must be shown that they otherwise expressly authorized or actually consented to the making of the improvements. The lease was by express terms made binding upon the successors of the parties. The evidence shows that Amanda Burton acted for the Burton heirs in the collection of the rent due under the lease; that while the first installment was paid to her by Armstrong and Isaacs, the three following payments, being for rent due to January 1,1907, were made through the medium of checks drawn by the Gillespie Park Amusement Company and payable to order, and further, that she actually saw the improvements in progress and knew that the same were being made by the Amusement Company as the equitable assignee of the lease. The Burton heirs cannot therefore question the assignment of the lease to the Amusement Company, which in equity was as binding as though made in due form in writing.

While, as we have said, the decree was right in so far as it restricted the lien of appellant for materials purchased for the improvements capable of removal to the leasehold interest, the chancellor should have declared a lien upon the fee simple title for the cost of the materials used in the construction of the dam in question, and the failure so to do was error.

The decree will be reversed and the cause remanded with directions to the circuit court to so amend said decree as to establish a lien upon the fee simple title to the premises in question for the sum of $406.40 due the appellant for materials furnished by it and used in the construction of the dam authorized by the lease, and that said decree be further amended so as to provide that the purchaser or purchasers of said leasehold interest at such sale shall have no greater or different rights in said premises than the lessees or their assigns would have were not such sale made, but that the purchaser of the improvements other than the darn shall acquire the same free from any lien for accrued taxes or rent and further that said leasehold interest and said improvements be offered at such sale both separately and together.

The clerk of this court will tax one-half of the costs of this appeal to each of the parties thereto.

Reversed and remanded with directions.


text:
    James L. Storm, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Contributory negligence—when person approaching railroad crossing not guilty of. While a traveler approaching a railroad crossing is required to use such care as a person of ordinary prudence would exercise under the same circumstances, and this ordinarily demands the faculties of sight and hearing, it cannot be said, as a matter of law, that a failure to look and listen is under all circumstances negligence per se.

      2. Contributory negligence—duty of companion of driver about to cross railroad trades. It is the duty of one accompanying the driver of a vehicle to observe dangers and avoid them if possible by suggestion or protest.
    3. Statute op limitations—Injuries Act construed. The amendment to the Injuries Act which became effective on July 1, 1903, changing the time within which suit must be brought thereunder from two years to one year, is a statute of limitations.
    4. Statute of limitations—when not retroactive. The amendment to the Injuries Act which became effective on July 1, 1903, changing the time within which suit must be brought thereunder from two years to one year is not retroactive.
    5. Pleading—what declaration • sufficient after verdict. A count of a declaration defective in failing to charge any specific negligence or to in any manner show .in what the negligence consisted, held, good after verdict.
    6. Instructions—when abstract in form will not reverse. An instruction abstract in form which is not inaccurate ordinarily will not reverse.
    7. Negligence—when engineer in charge of train not guilty of. Although an engineer or fireman may see a traveler approaching a crossing, he may lawfully assume that such traveler will stop before he reaches a place of danger until the contrary appears; therefore even though an engineer may have seen a traveler in ample time to stop his train, a failure so to do may not constitute negligence.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1909.
    Beversed and remanded.
    Opinion filed March 30, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald, and W. 0. Kelly, of counsel.
    Richardson & Whitaker, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

On July 5, 1904, appellee brought an action in ease against appellant for wrongfully causing the death of his intestate, Flora May Storm. Hpon trial by jury, judgment was rendered against the defendant for the sum of $1,400, to reverse which this appeal is prosecuted.

The first count of the declaration charges, in substance, that while the said Flora May Storm was, with all due care, riding in a buggy across the railroad of the defendant, at a crossing thereof with a public highway, the defendant negligently and maliciously drove and managed its certain locomotive and train of cars across said highway, by reason whereof such locomotive engine struck and killed her. The second count charges that no bell or steam whistle on the' locomotive was rung or whistled at a distance of 80 rods from the crossing and kept ringing or whistling until the crossing was reached. The third count charges that the defendant neglected to sound a whistle or ring a bell before reaching the crossing. The fourth and fifth counts are predicated upon an alleged violation of Section 261, Chapter 38, of the Criminal Code relative to the observance of Sunday. Pleas of the general issue and the statute of limitations were interposed to the declaration. A demurrer was sustained to the latter plea. The declaration was then amended by stating in the various counts the name of the next of kin of the deceased. The defendant then refiled the plea of the statute of limitations, alleging that the cause of action did not accrue within one year next before the commencement of the suit, to which a demurrer was again sustained.

The evidence shows that plaintiff’s intestate, who was about 19 years of age, was at about noon on Sunday, August 3, 1902, traveling toward the west in a buggy, with the top up, drawn by a horse which was driven by a young man named Hilligoss, upon a public highway about a mile east of Shelbyville; that shortly before they approached the railroad crossing, Hilligoss whipped his horse and tried to cross the same ahead of an approaching train, and that the locomotive struck the buggy, causing the death of both Hilligoss and Miss Storm. There was evidence which tended to show that the highway was in a cut and sloped toward the railroad track, and that there was a field of growing corn toward the north and east, by reason of which approaching trains could not be seen until a traveler upon the highway was close to the track, and then only by looking backward in a easterly direction; that there were several teams upon the highway at and before the time of the accident, most of which were going westward; that Miss Storm was unacquainted with the surroundings and with the railroad tracks; that she was merely the guest of Hilligoss and had no control over the horse which he was driving. There was also evidence that several witnesses to the accident endeavored by shout and gesture to warn Hilligoss and Miss Storm of the approaching train, but that they either failed to hear or see such warnings or disregarded the same, and that Hilligoss urged the horse toward and over the track without looking or listening for approaching trains.

Upon the issue as to whether or not a whistle was blown or a bell rung for the crossing, there was sufficient evidence to warrant the court in submitting the same to the jury. We are not prepared to hold, as a matter of law, that the deceased was guilty of contributory negligence. While a traveler approaching a railroad crossing is required to use such care as a person of ordinary prudence would exercise under the same circumstances, and this ordinarily demands the faculties of sight and hearing, it cannot be said, as a matter of law, that a failure to look and listen is under all circumstances, negligence per se. Collison v. I. C. R. R. Co., 239 Ill. 532.

As the judgment must be reversed and the cause remanded for reasons hereinafter stated, we shall refrain from a discussion of the evidence, further than to say that while the negligence of Hilligoss cannot be imputed to the deceased (Nonn v. Ry. Co., 232 Ill. 378), it was as much her duty as that of Hilligoss the driver, to observe dangers and avoid them, if possible, by suggestion or protest. In other words, she was required to exercise ordinary care to avoid injury. Davis v. Ry. Co., 159 Fed. 10. If she did exercise the same degree of care as an ordinarily prudent person would have under the circumstances, the negligence of Hilligoss, no matter how great, could not affect the right of appellee to recover. There was no connection shown between the alleged violation of the Sunday law, as charged in the fourth and fifth counts of the declaration, and the death of plaintiff’s intestate, and the court should have withdrawn the fourth and fifth counts of the declaration from the consideration of the jury.

^ It is insisted that the court erred in sustaining a demurrer to the plea of the statute of limitations. Such contention presents the questions, first, is the statute involved one of limitation; and second, if such, should it he given a retrospective effect. The deceased was killed on August 3, 1902, at which time, under section 2 of the statute entitled “Injuries,” her administrator had two years within which to bring suit, but subsequently an amendment to said statute-was adopted, which became effective on July 1, 1903, changing the time within which suit must be brought thereunder from two years to one year. Thus under the statute in force at the time Miss Storm met with her death, appellee had a right to bring suit at any time prior tó August 3, 1904. If the amendment be given retrospective effect, it is obvious that the present suit, which was instituted July 5, 1904, is barred thereby, and the demurrer to the plea should have been overruled. Counsel for appellant so contend, and rely chiefly upon Spaulding v. White, 173 Ill. 127; Coal Co. v. Fischer, 119 Ill. App. 284; Dare v. R. R. Co., 119 Ill. App. 256. In the former case the court held that section 7 of the act on wills, which confers jurisdiction upon courts of equity to entertain a bill to contest a will within three years after probate, is not a limitation law, nor does it create in parties interested a vested right to the full term so fixed, regardless of legislative changes, and that the period within which such proceedings might be started, might he so changed by amendment as to reduce such time from three to two years, and that such amendment would have a retrospective effect. The same rule is announced in Storrs v. St. Luke’s Hospital, 180 Ill. 368; also in Trust Co. v. Brown, 183 Ill. 42, where it is said, “The statute of wills is not a statute of limitation.”

In O’Donnell v. Healy, 134 Ill. App. 187, in which the precise question now under discussion was raised and determined, it is held that the amendment in question did not prescribe a condition to the right of action, but fixed a limitation, which is not retrospective in its operation. We concur in the view of the law as there expressed, which is well supported by authority and reason, and hold that the court did not err in sustaining the demurrer to the plea of the statute of limitations. See also Gruber v. Coal Co., 150 Ill. App. 427.

It is urged that the court erred in submitting the first count of the declaration to the jury. Although the count was defective in failing to charge any specific negligence, or to in any manner show in what the negligence consisted, and therefore obnoxious to demurrer, we think it was good after verdict. If the proof showed that the acts charged were negligent, the fact that the count also charged that the train was maliciously driven and managed would not prevent a recovery thereunder, notwithstanding there was no proof of malice or wilfulness. Guianios v. Coal Co., 242 Ill. 278. The plaintiff’s second instruction, while subject to criticism as being abstract in form, is not inaccurate. The plaintiff’s fifth instruction does not direct a verdict, but quotes the language of the statute, and is not subject to the criticism made. The objection to the plaintiff’s eighth instruction is hypercritical. The omission of the word “then” therefrom could not have misled the jury.

Plaintiff’s seventh given instruction told the jury, in effect, that if the engineer and fireman could by the exercise of reasonable care and watchfulness, have seen the deceased, in time to have stopped the train and avoided injuring her, without danger to themselves, they were bound to do so, and if they failed the defendant was liable. The instruction does not state a correct rule of law. Although the engineer and fireman may have seen the deceased in ample time to stop the train, they were under no obligation to do so from the mere fact of seeing her approaching the crossing. It has been repeatedly held that although an engineer or fireman may see a traveler approaching a crossing, he may lawfully assume that such traveler will stop before he reaches a place of danger, until the contrary appears: Schmidt v. Ry. Co., 191 Mo. 215; Ry. Co. v. Manly, 58 Ill. 300; Ry. Co. v. Lee, 68 Ill. 576; Ry. Co. v. Goebel, 119 Ill. 515. The instruction wholly ignores the question as to whether the deceased when first observed by the engineer or fireman, was in a place of danger or safety. If they had seen her in a place of danger, or in a situation indicating that she was about to place herself in danger, it would then have been their duty to stop the train if they could, but it is not the law that they were obliged to do so merely upon seeing her, as this instruction not only assumes, but expressly states.

In view of the close conflict in the evidence, the giving of this instruction constituted prejudicial error, for which the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Amos W. Walker, Administrator, Appellant, v. Michael Montgomery et al., Appellees.
    1. Appeals and errors—ialien additional evidence properly heard after remandment with direction to enter decree. After remandment with directions to enter a decree, additional evidence is properly heard if essential to fully and properly carry out such remanding order.
    2. Appeals and errors—what questions not considered upon second appeal. A question which might have been but which was not presented upon one appeal, will not be considered upon a second appeal of the same cause.
    3. Costs—what action of chancellor will not he disturbed. The awarding of costs is discretionary with the chancellor and the exercise of such discretion will not be interfered with in the absence of abuse.
    Bill in chancery. Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Rehearing denied May 24, 1910.
    Alden, Lati-iam & Young, for appellant.
    George B. Ehoads, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon a former appeal of this cause, the decree of the circuit court dismissing the bill was reversed as to the defendant, T. F. Dove, and the cause remanded with directions to enter a decree in favor of the complainant, in conformity with the views expressed in the opinion of this court, filed April 21, 1908. Walker v. Montgomery, 143 Ill. App. 216. We then held that T. F. Dove was not a purchaser in good faith from Montgomery, but took title to the farm with notice of the purpose and intent on the part of Montgomery to defeat Walker in the collection of his debt, and that he, Dove, “should therefore be held to account to appellant for the sum remaining after deducting from the amount received by Dove upon the sale to Buoy the $2,000 Dove paid for the land, added to the amount due on the $4,500 mortgage when he accepted the deed from Montgomery, and the taxes unpaid on the land when such deed was made, so far as the same should be required to pay appellant’s judgment and costs.” As to all the other appellees the decree of the circuit court was affirmed. From such decree Dove prosecuted an appeal to the Supreme Court, where, on October 26, 1908, the judgment of this court was affirmed. Walker v. Montgomery, 236 Ill. 244. At the ¡November term, 1908, of the circuit court, when the case was redocketed, the death of T. F. Dove was suggested and the complainant filed an amended and supplemental bill, making the executors of the will of Dove parties defendant. Said executors then, over the objection of appellant, submitted further evidence. ¡NTo evidence was offered by appellant further than to show that on May 1, 1907, he had received from the trustee in bankruptcy of Edwards the sum of $586.16 on account of his judgment against Montgomery and Edwards. Upon the evidence so introduced by the parties, the chancellor held that inasmuch as both this and the Supreme Court had theretofore found that Dove had received $9,000, from Buoy, for the Montgomery farm, he was precluded from considering any additional evidence bearing upon that point, and 'held that appellee should account for the said sum of $9,000 less the following deductions: Amount paid by Dove to Montgomery, $2,000; mortgage on the land $4,500; interest on such mortgage $218.56; taxes for the year 1900, $40.78; leaving a balance of $2,240.66, for which amount the court entered a decree in appellant’s favor and against the estate of Dove, and directed that the costs incurred in the circuit court should be paid equally by appellees as executors, and appellant. The chancellor further held that the estate of Dove could not be charged with interest on the fund fraudulently obtained by him upon the sale of the farm to Buoy from February 27, 1901, to the date of the decree. The result of such decree was to leave a balance of $979.32 still due appellant upon his judgments.

The grounds relied upon for reversal of the decree are:

First: That the circuit court should not- have received further evidence after the case was redocketed on the mandate from this court, but should have proceeded to state the account from, the record then before the court, as directed by this court. Inasmuch as the record upon the former appeal did not disclose the amount due as interest upon the mortgage, nor the taxes for the year 190Q, which items were manifestly essential in a proper accounting under the remanding order, the chancellor did not err in hearing evidence to ascertain and determine such facts. Such of the evidence taken as did not pertain thereto was disregarded by the chancellor and appellant was not prejudiced thereby.

Second: That the estate of T-. F. Dove should have been charged with interest on the balance found to be in his hands, at the rate of five per cent per annum, from February 27, 1901, to September 3, 1909. We are not called upon to determine this question, for the reason that it was not raised nor in any way called to the attention of the court upon the former appeal. Furthermore, if the remanding order then entered was not sufficiently specific in this respect, appellant should have presented the question to the Supreme Court by the assignment of cross-errors.

Third: That the estate of T. F. Dove should not have been credited with the item of $218.56 interest upon the mortgage, and $40,78 taxes for the year 1900. The interest was an incident to the mortgage indebtedness, and the remanding order expressly provided for the allowance of the taxes in question.

Fourth: That the decree should have provided for full payment and satisfaction of appellant’s judgments, together with interest thereon, and costs. It is contended that the effect of the mandate of this court upon the former appeal, wherein it is said that “Dove should be held to account to appellant for the balance remaining in his hands so far as the same should be required to pay appellant’s judgments and costs,” was to require him to pay in full the judgments, the accrued interest thereon and costs, and that the present decree should have so provided. We do .not think the language used is capable of such construction, which would require that appellees should pay appellant’s claim in full without regard to the amount for which their testator was bound to account. What was meant thereby was that if it developed that the sum to be accounted for by Dove' equaled or exceeded the amount of appellant’s claim, he would be required to pay such claim in full, but no more.

Fifth: That the entire costs in the circuit court should have been taxed against the estate of T. F. Dove, except such as were actually incurred by those defendants who ultimately prevailed in this court. The awarding of costs was discretionary with the chancellor (Rev. Stat. 1908, 583; Scott v. Beach, 172 Ill. 273; Barton v. Mosher, 62 Ill. 237), and we cannot say that such discretion was abused. While a portion of the costs accrued by reason of the controversy between appellee and other grantees of and purchasers from Montgomery, the evidence of such transactions was competent as tending to show a fraudulent design on the part of Montgomery and knowledge thereof on the part of Dove.

We shall not discuss the cross-errors further than to say that we do not think the same are well assigned.

The decree of the circuit court is affirmed.

Affirmed.


author: Hr. Justice Puterbaugh

text:
    Albert Gehrt, Appellant, v. The Collins Plow Company et al., Appellees.
    1. Corporations—when chancery mil not order declaration of dividend. Unless a very strong case is made a court of equity will not order the directors of a corporation to declare a dividend inasmuch as equity has no jurisdiction unless fraud or breach of trust is involved.
    2. Corporations—discretion of directors as to dividends. The declaration of a dividend from a surplus or a division of profits is within the discretionary powers of the directors and in the exercise of their discretion will not be controlled or interfered with by the courts unless they act oppressively or unreasonably.
    Bill in equity. Appeal from the Circuit Court of Adams'county; the Hon. A. Akers, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 19, 1910.
    L. H. Berger, for appellant.
    Go vert & Lancaster, for appellees.
   Hr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree sustaining a demurrer to and dismissing for want of equity, a hill filed by appellant against appellees the material averments of which are substantially the following:

That complainant was and had been since June 1, 1889, the owner and holder of thirty shares of stock in The Collins Plow Company of the par value of $100 each; that said company was a corporation organized in the year 1881, under the laws of Illinois, with a capital of $15,000 and was authorized by its charter to manufacture agricultural implements and machinery, at Quincy, Illinois; that its charter would expire in the year 1911; that William H. Govert, at the time of the filing of the bill, was president, J. W. Brown secretary, and William ¡N". Brown treasurer, all three of said officers constituting the board of directors of said corporation. That since June 1, 1889, said corporation had been manufacturing, dealing in and selling plows, cultivators and kindred implements, at its manufacturing plants in said city of Quincy and elsewhere. That the shares of stock of said corporation, by reason of its earnings, profits and the increase of its assets, had increased from the par value of $75,000 to the book value of the sum of $236,000; that from the date on which complainant received his said stock to the present time, no dividend had ever been made or declared upon the same; that William H. Govert and J. W. Brown owned, held and controlled the majority of the stock of said company, the said William H. Govert acting as president and manager thereof, and the said J. W. Brown as secretary, and both the said Govert and the said Brown were two of the three members of the directory board of said company and exercised the full control of the affairs of said company; that for the past eighteen years no stockholders’ meeting had 1 been held by said company, nor had any statement of the condition and the affairs of said company been made to the stockholders thereof, although by the by-laws of said corporation it was provided that annual meetings of stockholders should be held on the first day of August in each year, excepting Sundays and legal holidays. That complainant, being desirous of ascertaining the true value of said stock by making a personal inspection and examination into the affairs and condition of said company, caused to be served on the said corporation and William H. Govert, its president, and J. W. Brown, its secretary, notices requesting permission to examine the records, books and accounts of said company, but that notwithstanding said request, the said company and the said Govert and Brown had declined and refused, and still refused to permit complainant or his attorney to make such examination or inspection as was in and by said notices requested, contrary to the provisions of the Statute of Illinois in such cases made and provided. That by reason of said refusal complainant was unable to ascertain the true condition and affairs of said company. That the said company, by and through the management and control of said Govert and said Brown, had accumulated a large surplus, to the injury of cofiiplainant, as would more fully and at large appear by the following statement, purporting to be a balance sheet for September 30, 1907, furnished to complainant during the month of June 1908, by said company:

Balance Sheet September 30, 1907.

Assets.

Cash, ............ $ 3,039.15

Bills Receivable, .., 34,038.51

Accounts Receivable, 62,758.89

Interest Receivable, 268.90 $100,104.85

Stock at Factory, Mercantile House and other

Transfer Points outside of States,........ 135,355.48

Real Estate (Last statement) .... 69,672.24

(Additional Investments),....... 7,345.16 77,017.40

Machinery and Tools, ................... 17,773.79

Office furniture and fixtures at Factory, Mercantile House and other Sales Branches, . . 1,645.17

Horses, Harness, Wagons and Vehicles in use, 1,275.00

Other assets, ........................... 996.10

$334,047.79

Liabilities.

Accounts Payable, (Hot due) . . . .$35,482.44

Bills Payable (Borrowed money) . 61,353.10 $ 96,835.54

Commission Certificates, (Hot due and payment contingent on payment of certain Bills Receivable), . .......................... 1,167.83

Capital Stock, ................$ 75,000.00

Surplus,...................... 161,044.42 236,044.42

$334,047.79

Amount of assets in excess of liabilities, ... .$236,044.42

That the surplus of said corporation exceeded the sum of $161,000 and that the assets of said corporation over and above all liabilities outstanding, excepting therefrom the capital stock, amounted to over the sum of $236,000 and that said corporation was then and had been adding to its surplus over and above the sums last above stated by its increase of business and profits, and that the net profits of said corporation exceeded the sum of 180,000, and that the business of said corporation ivas then in a prosperous condition, and the profits therefrom were growing larger and greater. That complainant had upon numerous and various occasions requested the said Govert to have the company declare a dividend upon its said stock, but that the said Govert had refused to permit or declare a dividend. That complainant had never been able to obtain access to the books and records of said corporation to ascertain who constituted the entire board of directors of said corporation, but that he was informed that the said Govert, J. W. Brown and William E. Brown did constitute the board of directors of said company, and that if any other person belonged to or constituted said board of directors, such fact was unknown to and withheld from complainant. That on many and divers times between the years 1890 and 1908, he has asked the said members of said board, or directors of said board, to declare a dividend upon the stock of said corporation held by him, but that each of said members of said board refused, and still persisted in refusing to declare a dividend on Ijis said stock or to the stock-' holders on their stock held in said corporation. That said1 corporation was carried on by the said Govert and the said Brown in a collusive manner with the intent of manipulating the affairs of said corporation to the detriment and injury of complainant, and to deprive him of the value of his said holdings and to prevent him from receiving any dividends, and to force him to sacrifice his said stock at a great loss. That the said Govert and the said Brown were and had been combining and confederating together in the manipulation and control of the business of said company so that they then owned nearly all the stock issued by said company, and by the policy of not declaring dividends and not holding meetings of stockholders as is required by the by-laws of said company, no one ceuld ascertain the true value or then present condition of the plant or stock, nor could said stock be sold on the open market. That the price and value of said stock could be and was fixed by said Covert and said Brown, who owned and controlled said company and its board of directors, at any price they pleased. That said Covert was a person of abundant means and was controlling this said company’s affairs with the sole and only purpose of utilizing its assets to his own benefit and to the exclusion of complainant’s rights. That the surplus of said company was sufficient to declare a dividend of one hundred per cent, on its stock, and leave a balance of over $100,000 on hand after making a dividend of $100 per share. That complainant believed that the assets of said corporation had increased since the making of the statement referred to as Exhibit “D,” and that the same were hoarded by said corporation to his detriment and injury.

The prayer for relief is that “The Collins Plow Company,” William H. Covert, J. W. Brown and William IST. Brown, directors, and the directors of the said Collins Plow Company whoever they may be, may be decreed to declare and pay a dividend on the stock of said company equivalent to a sum which will not impair its capital or endanger its creditors, and for such other and further relief in the premises as equity may require, etc.

The vital question raised by this appeal, is whether or not the facts alleged in the bill are sufficient to warrant the intervention of a court of equity to enforce the declaration of a dividend by the board of directors of the corporation. Under the conclusions reached by us, it will be unnecessary to consider or determine whether or not the bill is subject to special demurrer for multifariousness or impertinence, or whether a sufficient or proper demand upon the board of directors that they declare a dividend is therein alleged.

It requires a very strong case to induce a court of equity to order the directors to declare a dividend, inasmuch as equity has no jurisdiction unless fraud or a breach of trust is involved. Cook on Cor. No. 545; 2 Beach on Pr. Corp. No. 601; Hunter v. Roberts, 83 Mich. 63; Burden v. Burden, 159 N. Y. 287; Greeff v. E. L. Society, 160 N. Y. 19.

The declaration of a dividend from a surplus, or the division of profits, is within the discretionary powers of the directors, and in the exercise of their discretion they will not be controlled or interfered with by the courts unless they act oppressively or unreasonably. Cook on Cor. 3545; Clark on Cor. 347; Morawetz on Pr. Cor. 447; Taylor on Pr. Cor. 3562—3, 2 Beach on Pr. Cor. 3602; Hunter v. Roberts, 83 Mich. 63; Wolfe v. Underwood, 96 Ala. 329; Pratt v. Pratt, 33 Conn. 446; Beveridge v. R. R. Co., 112 N. Y. 1; Greeff v. E. L. Society, 160 N. Y. 19. In determining the disposition to be made of the gains of a business, the directors are invested with a very liberal discretion. They may reserve of them whatever their judgment approves as necessary or judicious for repairs and improvements, and to meet contingencies, both present and prospective (Park v. Grant Locomotive Works, 40 N. J. Eq. 114), and may also in the exercise of a sound discretion, increase the assets of a company beyond their nominal amount by retaining and accumulating profits or earnings and applying them to the purchase of property or other purposes not beyond the corporate powers.

2 Beach on Pr. Cor. 3601; March v. Ry. Co., 43 N. H. 515; Pratt v. Pratt, 33 Conn. 446; Burden v. Burden, 159 N. Y. 287.

If there is a large surplus and in their opinion the interests of the corporation make it necessary or advisable, they may expend the same in improvements or in extending the business of the corporation. Clark on Cor. 347; Wolfe v. Underwood, 96 Ala. 329; McNab v. Mfg. Co., 62 Hun, 18. To ' authorize the intervention of a court to decree a dividend, it must appear that there are surplus profits to divide and that they can be separated from the necessary working capital without detriment to the interests of the stockholders or the prosperity of the business of the company. Hunter v. Roberts, 83 Mich. 63; Park v. Grant Locomotive Works, 40 N. J. Eq. 114.

By the bill under consideration it is not made to appear either by definite averments or by the statement “Exhibit D,” that the amount of earnings on hand is in excess of what the directors, in the fair exercise of their discretion, could regard as necessary or proper to be retained for use in the transaction of the business, or to meet contingencies, present or prospective. It is not alleged that any of the funds have been diverted from the objects for which the corporation was formed, nor is it shown that the directors are undertaking to expand the scope of the enterprise beyond the limits contemplated when it was started. The bill does not show that the affairs of the corporation are in such a condition that there is no occasion or necessity to withhold the accrued profits in order to meet legitimate demands and requirements of the business, to provide for its continued operation and future prosperity. Eor aught that appears the course pursued by the directors may be for the best interests of all the stockholders, and the one suggested by business foresight and sagacity. The bill wholly fails to show that the directors, in not declaring a dividend, do not fairly exercise their judgment or discretion in the interest of the corporation; or that they wilfully abuse their authority on the subject, or are acting in bad faith towards any of the stockholders or in disregard of their duties in the premises. Wolfe v. Underwood, supra.

The allegations of the bill as to the conduct of G-overt and J. W. Brown, are in no sense averments of facts, and if they were, do not connect the board of directors with such conduct. The bare charge that these defendants are conducting the company’s affairs in an unconscientious and collusive manner, or that they are combining and confederating together, in the manipulating and controlling the business, without stating the means Used by them, or stating any specific acts of wrong-doing, is not sufficient wherewith to charge either of them or the board of directors with any fraudulent conduct in the transaction of the company’s business.

For these reasons, we are of opinion the bill is obnoxious to a general demurrer and that the chancellor properly so held.

The decree of the circuit court is accordingly affirmed.

Affirmed.


text:
    A. D. Cowan, Appellee, v. E. E. Day, Appellant.
    1. Brokers and factors—when real estate commissions earned. If a broker is the procuring and efficient cause of the sale of property he becomes entitled to his commissions.
    2. Brokers and factors—what not abandonment precluding right to commissions. After a broker has produced a purchaser who has entered into a contract of purchase, the fact that he endeavors to sell such purchaser other property does not constitute an abandonment of the first transaction and deprive him of the right to commissions if he has produced a purchaser ready, able and willing to purchase.
    3. New trial—ichen newly discovered evidence not ground for. Newly discovered evidence will not require a new trial if it was not so clearly material and conclusive that its production would probably lead to a different result upon a new trial.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Livingston & Bach, for appellant.
    Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $100 rendered against him in favor of the plaintiff. The action is in assumpsit. The declaration alleges that the defendant requested the plaintiff to find and send to him a purchaser for certain real estate in the city of Bloomington, Illinois, and in consideration for so doing promised to pay the plaintiff a commission of two per cent of the amount such purchaser would pay for the premises; that the plaintiff did send to the defendant a purchaser for said premises to whom the defendant sold the same for the sum of $6,000, whereby the defendant became liable to pay the plaintiff two per cent commission upon said purchase price, but had refused so to do.

The plaintiff testified that he was engaged in the real estate business at Bloomington; that in the latter part of June, 1908, the defendant told him that if he would find a buyer for a certain piece of property he would pay two per cent commissions. The defendant testified that all he told the plaintiff on the occasion in question was that he would not list the property with him, but that if he would sell the same for him for $6,500 he would pay him a commission. The defendant thereafter, on December 28, 1908, sold the property to one Mrs. Kane, for $5,000. The evidence showed that prior to the conversation referred to, the plaintiff had been endeavoring by correspondence to sell certain other property to Mrs. Kane, but had been unable to do so; that after his conversation with the defendant he told one Mrs. Crawford, a friend of Mrs. Kane, that the defendant’s property was for sale, and asked her to so inform Mrs. Kane, but he was not personally acquainted with Mrs. Kane, and did nothing further in the matter than as stated, and that hearing nothing from Mrs. Kane thereafter relative to this particular property, he endeavored to interest her in other property which he had for sale. Mrs. Crawford testified, that at the request of the plaintiff, she told Mrs. Kane that the plaintiff had the defendant’s property for sale and that he thought it would suit her and would like to have her look at it and call upon him about it.

At the time the defendant sold the property to Mrs. Kane, he had no knowledge that the plaintiff had ever communicated with her, directly or indirectly, relative to purchasing the same. Inasmuch as the evidence as to the terms of the contract between the parties is in conflict, and the' finding of the jury relative thereto cannot be said to be clearly against the evidence, the plaintiff’s version of the terms of the contract must be taken as the true one. Under such contract, all that the plaintiff was required to do to entitle him to commissions, was to procure a purchaser for the property who was ready, willing and able to buy and complete the purchase. Although he did not personally introduce Mrs. Kane to the defendant or show her the property, or even communicate with her in person, she was induced to apply to the defendant through the instrumentality of the plaintiff. His efforts were thus the procuring or efficient cause of the sale of the property and he became entitled to commissions under his contract with the defendant. Hafner v. Herron, 165 Ill. 242.

It is contended by the defendant that the plaintiff having after the making of said contract, ceased his efforts to sell the property and endeavored to sell Mrs. Kane different property, he, the defendant, was justified in considering the contract as abandoned, and had the right thereafter to sell the property to Mrs. Kane through his own efforts, without becoming liable to the plaintiff for commissions under the contract. We do not think the fact that while the contract between the plaintiff and defendant was in force, the plaintiff did not confine his entire efforts to procuring a purchaser for the defendant’s property, constituted an abandonment of his employment under the contract. All he was required to do thereunder was to cause to be found a purchaser for the property. There was nothing in the terms of the contract which required him to cease endeavoring to sell other properties listed with him to Mrs. Kane. He was not employed to sell the property but merely to send the defendant a purchaser, and when he called Mrs. Kane’s attention to the fact that the property was for sale he had performed on his part. The theory of abandonment invoked has therefore no application to the present case.

We find no prejudicial error in the rulings of the court upon the evidence or instructions. The motion for a new trial because of newly discovered evidence was properly overruled. The evidence in question, even if admissible, is clearly not so material and conclusive that its production would probably lead to a different result upon a new trial. Janeway v. Burton, 201 Ill. 78.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    E. O. Eichelroth, Appellee, v. P. J. Long, Appellant.
    1. Warranty—what essential to enforcement. One who seeks to enforce a warranty imposing mutual and dependent obligations and covenants must show compliance upon his part. Provisions in a warranty relative to notice of breach and return of property warranted are material and substantial parts and cannot be disregarded by the vendee.
    2. Warranty—who unauthorized to waive conditions. If a contract containing a warranty expressly provides that no agent shall have power to change the same in any respect, an agent of the vendor is unauthorized to waive conditions or requirements of the contract of warranty.
    Action commenced before justice of the peace: Appeal from the Circuit Court of Montgomery county; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Lane & Cooper, for appellant.
    M. M. Creighton and T. A. Gasaway, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon an appeal of this cause from a justice of the peace, appellee recovered judgment against appellant in the circuit court for $138.16. The suit is based upon a note dated June 22, 1908, payable on or before September 1, 1908, to International Harvester Company of America, for the sum of $130 with six per cent interest and signed by appellant. The note was given in payment for a binder sold to appellant by appellee, who was the agent of the Harvester Company, in April, 1908. The order for the binder contains the following warranty:

“International Harvester Company of America (incorporated) warrants the above machine to do good work, to be well made of good materials, and durable if used with proper care. If, upon one day’s trial with proper care, the machine fails to work well, the purchaser shall immediately give written notice to International Harvester Company of America at 1 Monroe Street, Chicago, Illinois, and to the agent above named, stating wherein the machine fails, shall allow reasonable time for a competent man to be sent to put it in good order and render necessary and friendly assistance to operate it. If the machine cannot be made to work well, the purchaser shall immediately return it to said agent and the price paid shall be refunded which shall constitute a settlement in full of the transaction. Use of the machine after one day (or harvesting more than twelve acres) or failure to give written notice to said Company and its agent, or failure to return the machine, as above specified, shall operate as an acceptance of the machine and fulfillment of this warranty. Ho agent has power to change the contract of warranty in any respect, and the above order can be canceled only by said Company’s Chicago office. This express warranty excludes all implied warranties, and said Company shall in no event be liable for breach of warranty in an amount exceeding the purchase price of the machine.”

(Signed) “P. J. Long.”

“Dated the 22nd day of April, 1908.”

“Sold by E. O. Eichelroth.”

The evidence shows that appellee, who was the agent of the International Harvester Company at Litchfield, Illinois, procured the order and note in question; that said note was afterward transferred by endorsement to appellee; that the binder was delivered to the son of appellant and that he began to cut wheat with it about noon on the same day; that the machine failed to operate properly; that upon the first or.second day after its delivery, the trip hammer broke, whereupon appellant notified appellee and requested him to call and examine and repair the machine; that a few days later he called upon appellant at his office in Litchfield, and complained that tho machine did not do good work, and that appellee promised to send a man to repair the machine, and told appellant to go ahead and use it in the meantime; that appellant continued to use the machine through the harvest, after which time appellee sent an agent out, who attempted to adjust the same so that it would work satisfactorily; that appellant claimed the machine failed to do the work according to the warranty and offered to return it to appellee, hut that appellee refused to accept the same and brought this suit.

At the close of all the evidence the court instructed the jury to return a verdict for the plaintiff for the amount of the note and interest.

We do not think it necessary to determine whether or not the claim of appellant that the machine failed to do good work as warranted, is established by the evidence, for the reason that upon the alleged failure of the machine to work well after one day’s trial, appellant failed to comply with the terms of the contract by immediately giving notice of such fact to either the Harvester Company or to appellee, or by returning the machine to appellee as agent within a reasonable time. The evidence shows that no notice of any character was given to the Harvester Company, and it does not appear that such company was ever advised of appellant’s complaint that the machine failed to work. The evidence further discloses that instead of returning the machine to appellee upon discovering its alleged defects, appellant kept and used it the entire season, cutting in all about 100 acres of grain.

It is well settled where one seeks to enforce a warranty imposing mutual and dependent obligations and covenants, he who seeks to enforce it must show compliance on his part before he can insist upon performance by his adversary. The clauses in the warranty relative to notice and return are material and substantial parts of it, and are for the protection of the seller, and the purchaser is no more at liberty to disregard them than he is any other clause of his contract. When appellant made this contract he agreed that he would satisfy himself within one day whether the binder worked to his satisfaction and filled the warranty, and further that if it did not, he would at once give the notice required by the contract, and that if he failed to give such notice, such failure should operate as an acceptance of the machinery and fulfillment of the warranty. The provisions in the contract are plain, and need no construction. Had appellant complied therewith he could then be heard to show that the warranty failed; not having complied with them, his mouth is closed by his own agreement and he cannot be permitted to show that the machine did not comply with the warranty. The contract expressly provided that no agent should have power to change the same in any respect, and further that the express warranty therein contained excluded all implied warranties. It cannot therefore be held as contended, that appellee as agent waived the conditions or requirements of the contract. Moreover, the evidence further shows that when the note in suit became due, appellant did not claim that there had been any breach of the warranty but requested appellee to accept payment of one-half of the amount due and a new note for the balance, due in one year, which offer was refused by appellee, because appellant would not pay him an additional sum in consideration of the extension of time.

We find no error in the record which we consider prejudicial to appellant. The merits of the case seem to us to be clearly with the appellee, and the judgment will be affirmed. •

Affirmed.


text:
    Max Warren, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common carbiebs—when restriction of liability inoperative. Limitations of a carrier’s liability contained in a shipping contract are not binding upon the shipper unless his assent thereto is established by a preponderance of the evidence.
    2. Common cabeiebs—effect of violation of Interstate Commerce Act. The fact that a contract between a shipper and a carrier violates the Interstate Commerce Act does not prevent or affect the shipper’s right to recover for injuries or damages occasioned by the negligence of the carrier in the shipment.

      3. Evidence—of what judicial notice not taken. Judicial notice will not be taken of an official classification of freight rates made under the Interstate Commerce Act.

      Action in case. Appeal from the Circuit Court of Shelby county; the Hon. Tbuman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald, and W. 0. Kelly, of counsel.
    Bichardson & Whitaker, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum for $325. The declaration contains three counts, the first two of which charge that the plaintiff, on January 14, 1907, shipped three carloads of cattle from Windsor, Illinois, to Indianapolis, Indiana, over the defendant’s railway; that the defendant negligently ran and operated the train in which said cattle were placed, so that said train was left standing on various sidetracks between Windsor and Indianapolis, by reason of which said cattle did not arrive at Indianapolis within a reasonable time, whereby they became bruised, shrunk, and lessened in weight, and the market for said cattle declined, to the damage of the plaintiff, etc. The third count charges the same negligence, with the additional allegation, that the train did not arrive at Indianapolis within 35 hours, and that the defendant negligently permitted said cattle to remain in said cars in which they were transported, after they were loaded at Windsor, for the period of 35 -hours, without food or water, contrary to the statutes of the state of Illinois and the United States, and that by reason of such negligent management and operation of said train, and such negligently keeping said cattle in the cars, without unloading, feeding or watering the same, the plaintiff was damaged.

In addition to the general issue the defendant interposed a special plea alleging that the shipment was an interstate shipment made in accordance with the interstate commerce law, subject to the regulations of the Interstate Commerce Commission, and the provisions of the limited liability livestock contract upon which the rate paid for the transportation of the cattle was based; which said contract was filed as a part of the official classification number 29, with the Interstate Commerce Commission. The contract in question is set out in haec verba, and it is then averred that the plaintiff did not comply with one of the provisions thereof, which made it a condition precedent to recovery that he should make an affidavit of claim and send the same to the freight claim agent of the defendant within five days after the cattle were removed from the car. To such plea the plaintiff replied, first, that the defendant received and accepted an unverified claim from the plaintiff and thereby waived the making of claim under oath; second, that while a contract was signed hy the plaintiff with the defendant for transportation of plaintiff’s cattle from Windsor to Indianapolis, as alleged in that plea, the plaintiff understood that in signing said contract he was doing so for the purpose of procuring transportation for himself from Windsor to Indianapolis, and not for the purpose of limiting or waiving any of his legal rights or consenting to the terms of said contract, and that the plaintiff never read said contract and did not know the terms and conditions of said contract, and was never advised or informed by any one as to its terms and provisions. A demurrer was overruled to said replications.

The evidence discloses the following facts: On January 14, 1907, the plaintiff had three car-loads of cattle at Windsor, which he intended to ship to Indianapolis over the Wabash Railway. Upon learning that the company could furnish but two cars for the purpose on that day, he inquired of Hurst, the agent of the defendant company at Windsor, if he could furnish him with three cars over his road. Hurst replied that he had but two cars on hand; that he did not know whether he could get a third one or not, but that he would try to do so. He afterwards informed the plaintiff' that he had no car in sight, but that there was one at Hattoon which he could have brought to Windsor on the eastbound train Wo. 71, due at Windsor at 4:20 o’clock in the afternoon, in case that train ran. Plaintiff then said he would bring his stock over to the defendant’s road for shipment, whereupon Hurst suggested to him that he ship two car-loads on 'the Wabash and the other on the defendant’s road, to which the plaintiff replied that he wished to ship all the cattle together. Hurst then told him that the notice was so short that he could not depend upon securing the third car, to which plaintiff replied that he desired to go personally with the shipment and would bring the cattle over to the defendant’s road and await the arrival of the third car, and take his chances of getting out.

Train Wo. 71 in question was delayed because of a broken engine, and the third or additional car was sent on an extra train which arrived at Windsor at 8:15 o’clock in the evening. In the meantime the plaintiff had loaded the two cars that were already at Windsor. At 5:52 o’clock that afternoon, train Wo. 54, a local east bound train, arrived at Windsor. Prior to its arrival, Hurst asked the plaintiff to allow the two cars already loaded to go forward on Wo. 54, and let the third car follow whenever it was received; that the engine had broken down; that it was not definitely known when the extra would arrive at Windsor, and he thought it advisable to let the other two cars go forward. Plaintiff, however, held the shipment until the arrival of the additional car, and the three cars were finally attached to Wo. 62, the next train east, at 11:45 p. m., and arrived at Hattoon at 1:40 a. m. The shipment was then transferred through the Mattoon yards to train Wo. 92, the first east-bound train leaving after the arrival of Wo. 62. When train Wo. 92 arrived at Fontanet at 8:50 o’clock in the morning, is was side-tracked on account of the derailment of another train, which resulted in blocking the road until about 3 :30 o’clock in the afternoon. The cars finally arrived at Indianapolis at 10:40 o’clock in the evening, and were left at the stock-yards.

The plaintiff signed and received a copy of the shipping contract set out in the defendant’s special plea. He testified, however, that he did not read the same nor know nor was he advised of its terms and conditions by any one. There is evidence to show that when the cattle were unloaded at the Indianapolis stock-yards, they were skinned and bruised and had shrunk at least 25 pounds per head in weight, and such condition was due largely to their being confined in the cars in transit for an unusual length of time. There is also evidence to show that the usual ordinary time for transporting cattle from Windsor to Indianapolis, is from ten to fourteen hours, and that twenty-eight to thirty-five hours is unreasonable. The court therefore did not err in refusing to direct a verdict for the defendant.

Inasmuch as the plaintiff refused to ship the first two cars on train Ho. 54 and elected to wait for the arrival of the third car the defendant cannot be held responsible for the delay occasioned in leaving Windsor, and proof of such delay was therefore incompetent. It also appears from the evidence that in no event after leaving Mattoon could the shipment have arrived at Indianapolis in time for market on the 15th, and the proof that the market on the 16th was ten cents lower than on the preceding day, was therefore improperly admitted, and the fifth instruction offered by the plaintiff, which referred to such decline in the market, in fixing the measure of damages, should not have been given.

It is further urged as ground for reversal, that the second plea was not answered by the replications of the defendant thereto, and that the court therefore erred in overruling the demurrer to such replications. The declaration seeks to recover upon the common law liability. By the plea it is sought to show that the shipment was made under the contract therein set out, by the terms of which the common law liability of the defendant is restricted. By the replications the plaintiff seeks to avoid the effect of the contract by the allegation that although he executed the contract, he never read the same and did not know and was never advised or informed by any one as to the terms and conditions thereof, thus in effect denying the execution of the contract, at least so far as the restrictive features were concerned. An issue of fact was thus joined upon the question as to whether or not the restrictions of the common law liability were actually known or assented to by the plaintiff. If the' defendant, upon whom the burden rested, failed to show such assent, the restrictions of liability were not binding upon the plaintiff. Wabash R. R. v. Thomas, 222 Ill. 337. If the plaintiff did not know or assent to the special provisions of the contract it is obvious that he could not be held to have known that the special rate which it is claimed was accorded to him under the Federal Interstate Commerce Act, was conditioned upon his acceptance of the restrictive conditions of the contract. The contention that there is a conflict in the laws of the United States and those of the state, and the latter must give way to the former, is without force. There is nothing in the Interstate Commerce Act which prevents the law of the state where the contract is made or injury is done, from having full force- and effect, even though in doing so the result be to nullify the limitation contained in the published schedule of rates and uniform live-stock contracts, and give the shipper larger damages than he could have obtained had he been bound by them. R. R. Co. v. Hughes, 191 U. S. 477; R. R. Co. v. Solan, 169 U. S. 133. The fact that a contract between the shipper and carrier violates the Interstate Commerce Act does not prevent or affect the shipper’s right to recover for injuries or damages occasioned by the negligence of the carrier in the shipment. Insurance Co. v. Carriers Co., 91 Tenn. 537; Storage Co. v. Insurance Co., 151 U. S. 368; Kirby v. C. & A. R. Co., 242 Ill. 418. Moreover, the official classification of rates referred to in the special plea was not introduced in evidence, and inasmuch as we are not required to take notice of the same judicially, we are not called upon to determine questions dependent upon its contents.

The first and second refused instructions offered by the defendant were properly refused, as they in effect confined the defendant’s liability to the delay, if any, caused by the crew of the train upon which the cattle were shipped. The plaintiff was not bound to prove that the negligence complained of was due solely to the particular individuals' in charge of the train. If the delay was occasioned by any negligen.ce in the general operation of the defendant’s railroad, he was entitled to recover.

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

Reversed and remanded.


author: Mr Justice Puterbaugh

text:
    John J. Gilchrist, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Common carriers—what makes prima facie case of negligence. Held, in an action to recover for the value of a horse alleged to have been killed through the negligence of the defendant carrier, that proof of delivery of such horse in live and good condition and of its death while in the custody of the carrier, made a prima facie ease against it, subject to be rebutted by proof that the death of such horse was not caused by the failure of the carrier to exercise the degree of care which the nature of the property required.
    Action in case. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed.
    Opinion filed May 28, 1910.
    Blink & Covey, for appellant; Winston, Payne, Steawn & Shaw, of counsel.
    Peter Murphy and Baldwin & Stringer, for appellee.
   Mr Justice Puterbaugh

delivered the opinion of the court.

This suit is brought to recover the value of a horse of the plaintiff alleged to have been killed through the negligence of the employes of the defendant company. Trial by jury resulted in a judgment in favor of the plaintiff for $125, to reverse which the defendant prosecutes this appeal.

The declaration charges that the defendant received and undertook to carry the horse in question from Lincoln to Bloomington, and there safely deliver the same to the plaintiff ; that the horse was loaded into a car upon the side track. then switched from the side track out onto the main track and then taken down the main track until it reached the train of freight cars to which it was to be attached; that in so doing the servants of the defendant negligently ran the locomotive up to and against said car with great force and violence, by reason whereof the horse, while standing crosswise in said car, was thrown down upon the floor and its neck broken, causing its death. The evidence substantiates the charges of the declaration, except as to what caused the death of the horse, it being contended by the defendant that while the car containing the horse was standing on the main track, the horse became frightened by the noise of the locomotive passing on the other track, causing him to rear up, throw himself and break his neck. Proof of the delivery of the horse in live and good condition and its death while in the custody of the defendant, made a prima facie case against the defendant, subject to be rebutted by proof that the death of the horse was caused not by the failure of the defendant to exercise the degree of care which the nature of the property required. Burke v. Ex. Co., 87 Ill. App. 505; R. Co. v. Fox, 113 Ill. App. 180; R. Co. v. Johnson, 114 Ill. App. 545. The material issue of fact involved in the case is therefore whether the horse was caused to fall by reason of the negligent manner in which the car was handled, or by reason of its inherent vice.

The clear preponderance of the evidence, which was largely the testimony of witnesses called by the plaintiff, and which we have carefully considered, establishes that the horse was unaccustomed, to the noise of moving locomotives and cars, and that while the car in which it was loaded was-standing upon the main track, after having been switched from the side track, the locomotive passed by said car on the side track about 8 feet distant from the main track, and that the horse became frightened at the noise necessarily attendant upon the operation of the locomotive, reared up and fell down, and that by- reason of the shortness of the halter by which it had been tied by the plaintiff to the slats of the car, the weight of its body was thrown upon its neck, causing its neck to break. The death of the horse was therefore not due to a want of care on the part of the carrier but to its own proper or inherent vice, and the burden cast upon the defendant was overcome. The evidence was manifestly insufficient to establish the charge that the loss of the horse was occasioned by the negligence of the defendant as charged in the declaration, and the verdict returned was clearly against the weight of the evidence.

The judgment will be reversed and the clerk will embody in the judgment the finding that the defendant was not guilty of the negligence charged in the declaration.

Reversed.