text:
    Lorenzo Lamson, Warren A. Lamson and Leslie Gates, Partners, Appellees, v. Lawrence J. West, Appellant.
    1. Gaming, § 9

      —when pretended purchase or sale of grain through brolcer is gambling transaction. A pretended purchase or sale of grain made through a broker when neither the broker nor his client intends or expects that as between them the commodity-will be delivered or received, but both of them do intend that the losses or profits on the transaction shall be determined by the difference between the market price of the same when the deal is opened and when it is closed, or, in other words, when the intention is that the client shall win or lose money on the fluctuations of the market, it is as between them a gambling contract, and is not enforceable.
    2. Gaming, § 9*—how question whether transaction with broker is a gambling transaction determined. The question whether a transaction between a broker on a grain exchange' and his customer is a gambling transaction in no wise depends upon the relation between the broker and the party with whom he deals in carrying out his customer’s orders.
    3. Gaming, § 18*—when broker may not foreclose mortgage. In a suit to foreclose a mortgage given as security for a note given by a customer to a broker on a grain exchange in payment of losses sustained as the result of transactions on the exchange, where the evidence showed that the plaintiff knew that the defendant did not intend to receive or deliver any grain but that he intended to gamble on the rise and fall of prices, held that a decree of foreclosure was erroneous.
    4. Gaming, § 20*—when broker may not recover Jor services or for losses. When a broker engages to assist his client in committing the crime of gambling, he cannot recover from such client for his services or for losses incurred by himself on behalf of such client in forwarding the transaction.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    De Mange, Gillespie & De Mange, for appellant.
    Moses, Rosenthal & Kennedy and Livingston & Bach, for appellees; Walter Bachrach, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellant is a farmer and grain buyer at Glenavon, McLean county, Illinois, where he had two grain elevators having a joint capacity of 35,000 bushels of corn. Appellees are partners in the brokerage business and are members of the Chicago Board of Trade, maintaining offices in Chicago and a branch office in Bloomington, which was in charge of and managed by one Kelly. Appellant “did business” with appellees for several months. This “business”-consisted of ostensibly buying and selling grain in the Chicago markets. All told the “business” transactions aggregated about 1,700,000 bushels of grain, worth approximately $1,000,000, involving 157 different transactions. He was then worth from $60,000 to $100,000. These transactions were settled from time to time by appellees paying to appellant the profits he realized or by his paying them such losses as he sustained. That is, if appellant “bought” grain and the price of the grain increased, he would close the deal and appellees would pay him the difference between the market price when he “bought” and the market price when he closed out the deal. If the price of grain was lower when he closed out the deal than it was when he “bought” the grain, then he paid appellees the difference between the two prices. When he ‘ ‘ sold’ ’ grain and the market price was lower when the deal was closed than when it was opened, appellees paid appellant the difference and when the price was higher appellant paid appellees the difference. The market price of the commodity ostensibly purchased or sold by appellant was the criterion by which these settlements were made. The grain dealt in was not delivered nor was its delivery demanded at any time by either of the parties to this suit. Appellees executed these orders to buy or sell grain by making purchases or sales in their own name on the Board of Trade, and when the deals were closed settled with those with whom those deals were made. At times, if not at all times, when the deals showed a loss to appellant, appellees advanced the amount of such loss to those on the Board of Trade with whom the deals were consummated, expecting to be reimbursed by appellant. Appellant never knew who such persons were with whom the deals were consummated. In June and July, 1911, appellant “sold” over 100,000 bushels of corn through appellees’ agent Kelly, and when the deal was closed out, his losses amounted to $7,000, and he gave to appellees his note secured by a mortgage for that amount. This note not being paid at maturity, appellees began suit in the Circuit Court of McLean county to foreclose the mortgage given to secure it. In due time a decree was entered requiring appellant to pay appellees by a short day $8,950.

If these deals were bona fide purchases and sales of grain with the bona fide intention of all parties concerned to have the grain delivered according to the terms of the contract, then the decree is' right. On the other hand, if the transaction was a gambling transaction, it is void and unenforceable as to all who knowingly participated in it. Nash-Wright Co. v. Wright, 156 Ill. App. 243; R. E. Pratt & Co. v. Ashmore, 224 Ill. 587-590; chapter 38, sec. 132, Hurd’s Rev. St. 1911 (J. & A. ¶ 3735).

A pretended purchase or sale of grain made, through a broker, when neither the broker nor his client intends or expects that as between them the commodity will be delivered or received, but both of them do intend that the losses or profits on the transactions shall be determined by the difference between the market price of the same when the deal is opened and when it is closed, or, in other words, when the intention is that the client shall win or lose money on the fluctuations of the market, it is as between them a gambling contract, and is not enforceable. Jamieson v. Wallace, 167 Ill. 388, affirming 60 Ill. App. 618. In that case a bill was filed by the client against her brokers to recover back certain collaterals placed by her in their hands to make up losses which they claimed she had sustained in certain deals in stocks, made by them for her in the New York market, which she also claimed were to be settled for between herself and her broker on the rise and fall of the market. The answer of the defendants denied the substantial averments of the bill and alleged that the stocks were, in fact, purchased in the New York market and paid for, by them; that the collaterals were placed in their hands to secure them from loss from shrinkage in the value of the stock purchased, and that the transaction in New York was a bona fide purchase. On that point the Supreme Court said: “But whatever may be the fact as to the nature of the transaction between the appellants and those representing them in New York, so far as the transactions now involved are concerned, appellants and appellees were principals. The contract between the appellee and the appellants is the only contract which can be regarded in the decision of this case, * * * If the understanding between appellants and appellee was that the deal as between themselves should be settled upon differences, and that there should be no delivery of the stocks, then the contracts as between them were gambling contracts. ’ ’

In the case at bar, the contract sued on is one made between appellees, the brokers, and appellant, the client. It in no way involves the contract made by appellees, as appellant’s broker, with the other broker or his client, with whom the orders to sell or buy were placed.

If it was the purpose and intent of appellant to use the forms of legitimate trading on the Board of Trade for the purpose of putting over a gambling transaction, and appellees knowing or being satisfied that such was appellant’s purpose, for the sake of the commissions they might thereby derive, lent themselves and their position as brokers and members of the Board of Trade to further such unlawful purpose, then the transaction between them and appellant was a gambling enterprise and was unlawful and criminal under section 132 of chapter 38, Hurd’s Revised Statutes of 1911 (J. & A. ¶ 3735), then in force, and the relation between these parties in such transaction was not that of broker and client or principal and agent, but was that of principal and accomplices in crime (Weare Commission Co. v. People, 209 Ill. 528-542), and neither can recover from the other the fruit of such unlawful enterprise.

The master in chancery to whom this cause was referred found that it was appellant’s intention to gamble on the market. There is no exception to that finding, and it is amply supported by the testimony of appellant as well as by all the circumstances shown by the evidence. As to whether appellees knew that such was appellant’s intent, there is no testimony of any witness who heard appellant tell them in so many words “I am going to do some gambling on the markets, and I want your assistance,” but the evidence in the record is quite as convincing as such testimony would have been. It shows that Kelly, appellees’ agent at Bloomington, knew appellant, had seen his small elevators, knew their capacity approximately, and the limited amount of grain that could be handled through them, had almost daily conversations with appellant, either face to face or over the telephone concerning the deals; advised him when to “get in” or “get out,” and knew something of his financial worth. His knowledge was the knowledge of his principals. Besides these things appellees had personal knowledge that between October 5, 1910 and July 27, 1911, appellant had entered into 157 different trades in grain, for they had placed them; that these deals were all “settled” before the day of delivery; that they had given him several checks for “profits” he had made; that they had received checks from him in settlement of his losses; that these checks corresponded with the amounts the books of appellees showed were due to or from them at such times; that the totals of his deals far exceeded his needs as well as his financial ability to handle; that several of such deals were begun and closed on the same day; that in all of these transactions not a bushel of grain was ever delivered by or to appellant; that but one carload of grain was ever sent by appellant to appellees and that was not in connection with any of the 157 deals here in question; that during the time these deals were made, appellant was shipping the natural output of his elevators to other consignees; that appellees frequently demanded “margins” but never demanded the shipment of grain. They knew that appellant’s name did not appear and that he was not known in any of the transactions on the Board of Trade. These and many other circumstances lead to the irresistible conclusion that appellees knew that appellant was gambling in margins.

It would certainly be an unsophisticated person who would not be convinced to the point of absolute certainty that the deals, so far as appellant was concerned, were gambling ventures and not purchases and sales of grains.' Yet knowing such facts, appellees paid appellant’s losses and charged the same, together with their commissions, to him on their books, thereby aiding and abetting him in his gambling transactions. But one of appellees ’ firm took the stand to deny knowledge that these deals were gambling deals, neither was Kelly, the agent, called to the stand to deny it, but if they had all denied it, their testimony could scarcely have weakened the convincing force of the circumstances which tend to show they all knew to the contrary.

When a broker engages to assist his client in committing the crime of gambling, he cannot recover from such client for his services or for losses incurred by himself on behalf of such client in forwarding the transaction. Pope v. Hanke, 155 Ill. 617-623.

The decree of the Circuit Court is therefore reversed and the cause is remanded with directions to that court to dismiss the bill for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Fannie Mills, Appellee, v. Clifford W. Warner, Executor, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Hancock county; the Hon. Habby M. Waggoner, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Fannie Mills, plaintiff, against Clifford W. Warner, executor of the last will and testament of Jacob Gahm, defendant, for injuries alleged to have resulted from the malpractice by the defendant’s testator. From a judgment for plaintiff, defendant appeals.
    The plaintiff alleged that the malpractice occurred while the defendant’s testator was delivering her of a child, and consisted in puncturing her bladder with his instruments
    The evidence introduced on the part of plaintiff to show what Dr. Gahm did at the time of the birth of the child and what the result was upon the plaintiff was given by Mrs. Sarah Kinkaid, the mother of plaintiff. Her testimony showed that instruments were used; that plaintiff was not given chloroform or other anaesthetics; that after the child had been born the witness in the presence and hearing of plaintiff said to the doctor as he was about to depart: “There is something more you have got to do, you tore her literally all to pieces ’ ’; that he said, ‘ ‘ she will be all right, ’ ’ to which Mrs. Kinkaid replied “she never will,” and that plaintiff then said “I believe I’m flowing to death”; that this conversation related by Mrs. Kinkaid took place in the .presence of plaintiff, who, as the witness expressed it, “was right there on the bed, she heard every bit”; that within a few days after the birth of the child, plaintiff and her mother became convinced that plaintiff’s bladder was ruptured, and Mrs. Kinkaid suggested an experiment to, determine whether their surmises were correct; that Dr. Gahm, at Mrs. Kinkaid’s suggestion, injected water into the bladder, and it leaked out through the ruptured place and was caught in a receptacle held by Mrs. Kinkaid; that plaintiff knew why the experiment was made; that she knew what the test was and what the result of it was.
    The only testimony that was claimed showed any attempt on the part of the doctor at fraudulent concealment was in regard to two circumstances. One occurred the third day after the child was born. Mrs. Kinkaid had told the doctor that there was something wrong with plaintiff’s bladder, and he without making any examination expressed the opinion that the neck of the bladder was paralyzed and prescribed some medicine for it. There was nothing in this record to show that the doctor then knew or had reason to believe the bladder was ruptured, or that he attempted to hide any fact from plaintiff. The other circumstance was on the train some three months after the child was born, when Mrs. Kinkaid says the doctor offered her ten dollars not to say any more to plaintiff about her bladder being torn. The testimony regarding that incident as related by Mrs. Kinkaid showed that the doctor believed that plaintiff was being made worse by having her condition discussed with her and in her presence by the witness and some women whom the doctor called “Old handkerchief heads,” and said if it was not stopped she never would get any better, and that he would not treat her any more if such conversation was not stopped. Mrs. Kinkaid said: “If you think that I am making her worse by telling her that, I won’t say anything more to her about it,”

      Abstract of the Decision.
    1. Limitation of actions, § 46

      —when action for malpractice must he brought. An action for malpractice based on the fraudulent concealment of the patient’s condition by the physician must be brought within five years after the patient discovered from any source that she had a right of action.
    2. Limitation of actions, § 46*—when evidence insufficient to show fraudulent concealment of patient’s condition. In an action for malpractice, based on the fraudulent concealment of the patient’s condition by the physician, evidence held to show that the patient at the time the operation' was performed knew as much as did the physician about her condition, resulting from the operation alleged to have constituted malpractice and that the physician had made no attempt at concealment.
    Mack & Mack and Hartzell & Cavahagh, for appellant.
    Scofield & Califf, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Henry Warner et al., Appellants, v. Sylvester Wagner et al., Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Appeal dismissed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Bill for an injunction by Henry Warner et al., complainants, against Sylvester Wagner et al., defendants. From an interlocutory order dissolving a temporary injunction, the complainants appeal.
    Abstract of the Decision.
    Appeal and error, § 309

      —when appeal does not lie from interlocutory order. An interlocutory order dissolving a temporary injunction, without an order dismissing the bill, is not appealable.
    Whitaker, Ward & Pugh; for appellants.
    A. J. Steidley, for appellees; J. C. Willard, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Farmers’ Grain Company of Dorans, Appellant, v. Illinois Central Railroad Company, Appellee.
    1. Carriers, § 30

      —when laws governing interstate commerce control. When a contract is made for the transportation of goods from a point in one State to a point in another State, and the goods are loaded and started for their destination, the laws governing interstate commerce control, whether the goods ever leave the State or not.
    2. Carriers, § 30*—what is object of Carmack, Amendment to Interstate Commerce Act. The object of the Carmack Amendment to the Interstate Commerce Act was to help and not to hinder interstate shippers in recovering for losses of goods while in transit, and it should be construed in the light of such purpose.
    3. Carriers, § 138*—when evidence admissible to show who lawful holder of bill of lading. While the presumption is that one in possession of a bill of lading is the lawful holder thereof, it may be shown by competent evidence that another is in fact the lawful holder so as to entitle him to bring an action under the Carmack Amendment of the Interstate Commerce Act for loss to goods during transit.

      4. Carriers, § 58

      —when shipper remains owner of goods. In an action by a shipper under the Carmaclt Amendment of the Interstate Commerce Act, for loss of goods during transit, where bills of lading were delivered to the drawees of sight drafts attached thereto, with the stipulation that the goods were to be delivered to them only on payment of such drafts, held that the shipper still remained the owner of the goods so as to entitle him to maintain the action.
    5. Conflict of laws, § 33*—when law of forum governs. In regard to the introduction of evidence, courts are governed by the laws of the forum.
    6. Carriers, § 138*—when affidavit of weighers admissible. In order that an affidavit of one having personal knowledge of the weight of a shipment delivered to a consignee by common carriers may be admissible in evidence, under Hurd’s Rev. St. ch. 114, par. 118, sec. 1 (.1. & A. ¶ 8920), it is not necessary that the affidavit state that the affiant comes within the class named in the statute, but such evidence may be shown by other competent proof.
    7. Carriers, § 138*—when affidavits of' toeighers admissible. Where grain is sold subject to the weight taken by weighers of a board of trade at its destination and is delivered by the carrier without being weighed, affidavits of such weighers as to the amount delivered are competent evidence in an action by the shipper for loss of shipment.
    8. Trial, § 74*—when proof of value of lost property may be introduced. In an action against a carrier for the loss of a part of a shipment, proof of the value of the part lost may be introduced either before or after proof of the amount lost.
    9. Witnesses, § 194*—when evidence of witness refreshing memory from book admissible. In an action for loss of a shipment of grain, evidence of the plaintiff, who had made prior sales at the point of destination of the shipment in question and had made notations thereof in a book kept by him for that purpose, as to what the prices were at such point, a,s his memory was refreshed by the book, held admissible after proof that the entries in' the book were correct.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Bryan H. Tivnen, for appellant.

      Edward C. Craig, Donald B. Craig and Jambs W. Craig, Jr., for appellee; John G. Drbnnan, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellant brought suit in the City Court of Mattoon to recover of appellee, as a common carrier of grain, for losses claimed to have been sustained by appellant by reason of the failure of appellee to deliver at the destination points, parts of some eighty-nine different shipments made by appellant from Dorans, Illinois. The declaration contained a separate count for each shipment. Before the case was submitted to a jury all of these counts except eighteen had been eliminated. The plea of defendant was the general issue. At the close of appellant’s case, the jury by the peremptory instructions of the court returned a verdict finding appellee (defendant in the court below) not guilty.

It is not denied that appellee is liable to some one for any grain that was lost in transit, at its fair cash market value. Neither is it denied that appellant was the consignor in all the shipments in question, and that a bill of lading was duly issued to it on each of such shipments. It is, however, contended by appellee that all of the eighteen shipments except one were interstate shipments and governed by the provisions of the Carmack Amendment to the Interstate Commerce Act; that as to all of such shipments, whether interstate or intrastate, the evidence shows that appellant was not the owner of the grain or the lawful holder of the bill of lading when the loss, if any, occurred, and that in any event there is no proper evidence in the record to show either that there was a loss of grain in transit or what the market value of it was, either at Dorans, when it was received for shipment by appellee, or at the different points where the same should have been delivered.

The evidence shows that in seventeen of the eighteen shipments in question the destination of the grain was beyond the limits of the State of Illinois. Even if it be true, as is claimed by appellant, that some of these shipments were stopped and unloaded in Chicago, we think they must all be held to be interstate shipments, because when a contract is made for the transportation of guods from a point in one State to a point in another State, and the goods are loaded and are started for their destination, the laws governing interstate commerce control, whether the goods ever leave the State or not. United States v. Colorado & N. W. R. Co., 85 C. C. A. 27, 157 Fed. 321; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 194.

' On the question of who was the owner of the grain while in transit, appellee claims that the course pursued constituted a sale and transfer of the title to the grain at the point of shipment.

The evidence, however, does not bear out all that appellee claims for it. It does show that immediately upon receiving the bills of lading sight drafts were drawn by appellant on different persons at the point of destination of the various shipments, and that the bills of lading were delivered to the same persons on whom the sight drafts were drawn, but it further shows that such sight drafts were not drawn for the whole amount of grain shipped, but for only about ninety per cent, of it; that the amounts so obtained were treated as loans or advancements, and drew interest until the deal was closed after the grain reached its destination; that as between the drawer and the drawee of the sight drafts, it was understood and intended that the title of the grain should not pass until it was weighed at the destination and. was found to be of the grade specified, and that only so much of the grain shipped as reached its destination and graded up should be accepted and paid for. The evidence further shows that appellant in fact never did receive pay for any of the grain involved in the shipments in question except that which reached its destination and graded up. The parties to those transactions had a right to make such a contract. If that was the contract then appellant was the owner of the grain while in transit, and unless there is something in the Car-mack Amendment, when applied to the facts in this case, to prevent it, appellant was entitled to maintain an action to recover for so much, if any, of the grain as was lost in transit.

The part of the Carmack Amendment relied on is as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

Appellee contends that after appellant delivered to the drawees of the sight drafts the bills of lading it was no longer the lawful holder of them, and was prohibited by this amendment from recovering for any loss of or injury to such property while in transit.

The object of that amendment was to help and not to hinder interstate shippers in recovering for losses of goods while in transit, and it should he construed in the light of such purpose. Looney v. Oregon Short Line R. Co., 271 Ill. 538,

While by this amendment the right to recover for loss of goods in transit in interstate shipments is given and limited to the lawful holder of the bill of lading, and while the possession of the bill of lading, even by assignment or mere delivery, raises the presumption that the one in possession is the lawful holder, it is not conclusive and is always subject to be overcome by a showing that he is not. The mere possession of a bill of lading may be in one person, while the lawful holder of it may be an entirely different one. Whether the one- in possession of it is the lawful holder depends upon the intent of the parties in giving and acquiring such possession, and what that intent was may be shown by any competent proof. Mr. Justice Duncan, now of the Supreme Court, gives emphasis to the effect of the intent with which an assignment or delivery of possession of a bill of lading is made as bearing on the question of whether the possessor of it is the lawful holder in Idaho Sheep Co. v. Oregon Short Line R. Co., 188 Ill. App. 591. On page 596 of that opinion he says:

“The right of action is in positive terms of said amendment given to the lawful holder of the receipt or bill of lading, and it requires the carrier to issue the same. These provisions are sound and simple and need little or no explanation. The owner of the bill of lading was regarded in law as an owner of the goods or the thing shipped before the Carmack Amendment was ever enacted. The lawful holder of the bill of lading, even by assignment or by mere delivery thereof with intent to transfer the goods, has at all times been regarded as having the right to the possession of the goods shipped, and property rights therein according to the intent of the parties to the assignment or delivery, and could maintain an action for the possession of the same. Delivery of a bill of lading with intent to transfer the property in the goods is a symbolical delivery of the goods and passes a valid title "thereto "

In “The Carlos F. Roses,” 177 U. S. 665, 671, 44 L. Ed. 933, 935, the court says:

"Bills of lading stand as the substitute and representative of the goods described therein, and, while quasi-negotiable instruments, are not negotiable in the full sense in.which that term is applied to bills and notes. The transfer of the bill passes to the transferee the transferrer’s title to the goods described, and the presumption as to ownership arising from the bill may be explained or rebutted by other evidence showing where the real ownership lies. A pledgee to whom a bill of lading is given as security gets the legal title to the goods and the right of possession only if such is the intention of the ‘parties, and that intention is open to explanation. Inquiry into the transaction in which the bill originated is not precluded because it came into the hands of persons who may have innocently paid value for it. * * * Even if bills of lading are delivered, that circumstance will not be sufficient, unless accompanied wdth an understanding that he who holds the bill of lading is to bear the risk of the goods as to the voyage, * * * it cannot be held to work any change in the property. ’ ’

See also, Ensign v. Illinois Cent. R. Co., 180 Ill. App. 382, 383.

In Pecos & N. T. Ry. Co. v. Meyer (Tex. Civ. App.) 155 S. W. 309, the court defines the term “lawful holder” to mean the one beneficially entitled to recover for loss or injury, and says the manual possession.is not prerequisite to the right to sue.

The bills of lading in evidence in this case contained a stipulation or rule that the same should be surrendered before the grain would be delivered. We think the evidence in this record fairly tends to show that the delivery of them to the drawees of the sight drafts was not intended as a transfer of the ownership of the grain, but was merely intended to place such drawees in a position where they could comply with the stipulation or rule referred to and thereby obtain possession of the grain, weigh it, grade it, and if it was up to grade, close the deal. If the title to the grain remained in appellant until it reached the point of destination and graded up and was accepted by the drawees of the sight drafts as their property, then of course no one but appellant could recover for loss or injury to the same while in transit. That being true, appellant, under the principle announced in the Pecos case, supra, would be the lawful holder of the bills of lading, while the grain was in transit whether it had them in its manual possession or not. The fact that appellant sold to others all the grain that finally reached its destination, and the further fact that bills of lading were delivered to such purchasers and were in turn delivered by them to appellee in exchange for the grain, cannot be held to defeat appellant’s right to recover for the grain that never reached its destination.

What has been said as to the ownership of the grain, and the effect of the delivery to the buyer of the bill of lading, applies with equal force to the intrastate shipment.

Appellant offered in evidence three affidavits of persons who weighed separate shipments of grain at their destination for the purpose of showing that all the grain shipped was not delivered. Objections made to these affidavits were sustained. The statute under which they were offered is paragraph 118, sec. 1, ch. 114, Hurd’s Revised Statutes (J. & A. ¶ 8920):

"Evidence — Shortage. If any such corporation shall, upon the receipt by it of any grain for transportation, neglect or refuse to weigh and receipt for the same, as aforesaid, the sworn statement of the shipper, or his agent having personal knowledge of the amount of grain shipped, shall be taken as true, as to the amount so shipped; and in case of the neglect or refusal of any such corporation, upon the delivery by them of any grain, to weigh the same, as aforesaid, the sworn statement of the person to whom the same was delivered, or his agent having'personal knowledge of the weight thereof, shall he taken as true, as to the amount delivered. And if, by such statements, it shall appear that such corporation has failed to deliver the amount so shown to be shipped, such corporation shall be liable for the shortage, and shall pay to the person entitled thereto the full market value of such shortage, at the time and place when and where the same should have been delivered.”

Appellee insists there was no error in refusing to admit these affidavits in evidence for several reasons: First, that they were not made by the person receiving the grain or by an agent of such person having a knowledge thereof; second, because they did not show on their face that they were made by the person named in the statute quoted; third, that appellant was not' the proper person to bring the suit and therefore it was immaterial to this suit what the grain weighed at the point of destination; fourth, that there was no proof in the record as to the value of the grain claimed to have been lost and therefore the amount of it was immaterial.

In regard to the introduction of evidence, courts are governed by the laws of the forum. The statute above referred to is a rule of evidence and provides that the sworn statement of the person to whom goods are delivered, or his agent having personal knowledge of the facts, shall be taken as true as to the amount delivered. The statute does not require that proof of whom the person is who makes the affidavit and what his relation is to the person who received the goods shall be contained in the affidavit. In the absence of such statutory requirement it is clearly competent to prove such facts by other evidence. The statute referred to being a rule of evidence only, does not and cannot tend to increase or decrease liability, and therefore applies to all shipments whether interstate or intrastate.

There is proof in the record tending to show that the railroads did not weigh the grain at its destination; that the grain in these shipments was sold subject to the weights taken by the weighers of the various boards of trade and exchanges at the various places where the grain was delivered. If that is true, then such weighers were by such arrangements constituted the agents of all persons concerned, for the purpose of weighing the grain, and their affidavits were competent evidence under the statute referred to.

The point made that as there was no proof of the value of the grain, therefore proof of the amount lost was immaterial, has no force. There is no hard and fast rule governing the order of the introduction of such proof. It is entirely competent to introduce first either proof of the amount of property lost and then of its value, or first proof of its value and then the amount lost.

Appellant offered proof as to what the market value of grain was at the point of destination of some or all of these shipments, but on objection it was excluded. The witness was not a resident of these several places, but he had sold grain on the market at all of such places and had kept a record of the same in a book kept for that purpose. Appellant offered to prove that these books were correct and that the witness by refreshing his mind by reference to them was able to tell what the fair cash market value of the grains in question was at the time and place in question. We think the evidence was competent. Of course its weight was a matter for the jury to determine.

For the errors pointed out the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    In the Matter of the Estate of Isaac Creighton, Deceased. Mary C. Creighton, Appellee, v. Robert F. Creighton et al., Executors, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 105

      —when Probate Court has jurisdiction. The Probate Courts of this State have jurisdiction to determine whether a petitioner is entitled to a widow’s award, even where, in determining that question, it is necessary to exercise equitable power.
    2. Executors and administrators, § 13*—when trial de novo on appeal. A hearing in the Circuit Court on appeal from the Probate Court is de novo.

    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Petition by Mary C. Creighton, petitioner, against Robert F. Creighton and others, executors of the estate of Isaac Creighton, deceased, respondents, to have a widow’s award, as provided by the statute, set apart. From an order in favor of the petitioner, the respondents appealed to the Circuit Court where a trial was had de novo. From a like order entered therein, the respondents appeal.
    Dwyer & Dwyer, for appellants.
    Actor & Actor, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

3. Executors and administrators, § 180 —when release 6y widow of right to award is void. Evidence introduced on a hearing of a widow’s petition to have her statutory award set apart, held to show that a release by her of her right thereto was obtained by fraud and misrepresentation, and was void.


text:
    Matthew Kerber, Appellant, v. Claus Stroh, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Bill for injunction filed by Matthew Kerber, complainant, against Claus Stroh, defendant, to enjoin the defendant from erecting and maintaining dikes along a drainage ditch on his land so as to cause drainage waters to back up on the complainant’s land. From a decree for complainant, defendant appeals.
    Twenty years before the filing of the bill the complainant’s grantor and the defendant had by agreement constructed a drainage ditch over the defendant’s land, draining a pond situated partly on his land and partly on that of the complainant, who was an upper proprietor. Thereafter the defendant, in order to prevent the water from such ditch overflowing his land, constructed dikes along the ditch, which, owing to its inadequate size, caused the water to set back on the complainant’s land.
    Livingston & Bach, for appellant.

      Abstract of the Decision.
    Waters and water courses, § 22

      —when construction of dikes may he enjoined hy upper riparian owner. Where a ditch across a lower proprietor’s land had served to drain the land of an upper proprietor for over twenty years, held that the latter could enjoin the former from building and maintaining dikes constructed within twenty years along the bank of the ditch so as to prevent waters therefrom from overflowing his land, it appearing that the dikes caused the water to back up on the upper proprietor’s land, owing to the insufficiency of the ditch to take care of the entire flow, since the upper proprietor had the right to have such excess water as the ditch could not take care of, flow over the lower proprietor’s land, as it had done before any artificial construction had been made.
    Sterling & Whitmore, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    George H. Lucas and Elizabeth Schleder, Appellees, v. O. A. Smith and Bettye Smith, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court" of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    In foreclosure proceedings by George H. Lucas and Elizabeth Schleder, complainants, against O. A. Smith and Bettye Smith, defendants, Elizabeth Schleder applied for and obtained a writ of assistance against O. A. Smith for possession of land purchased by the petitioner at the foreclosure sale. From such order, the defendants appeal.
    Abstract of the Decision.
    1. Assistance, Writ of, § 1

      —when appropriate process. A writ of assistance- is an appropriate process to be issued from a court of chancery to place the purchaser of mortgaged premises under a foreclosure sale in possession after the master’s deed has been' delivered to such purchaser, and the time for redemption has expired.
    2. Assistance, Writ of, § 13*—when purchaser at foreclosure

      sale entitled to. Where, after the expiration of the period of redemption of land sold on foreclosure, the master executed and delivered a deed thereto to the purchaser, who, on failure of the defendants to deliver the possession of the premises, filed a copy of the order confirming the master’s report and sale and caused a copy of the master’s deed to be served on the defendants and demanded possession of the premises, held that such purchaser had complied with all the requirements of law and terms of the decree and was entitled to a writ of assistance to obtain possession of the property.

      The decree of foreclosure provided, in substance, that defendants should pay to complainants, the holders of the mortgage foreclosed, the amount found due by a day fixed; that in default thereof the premises be sold; that at the expiration of the time of redemption the master should execute and deliver to the purchaser a deed for the premises sold; and that upon the delivery of such deed the holders thereof should be let into possession of the premises so conveyed. The record showed that the premises were sold and were purchased by petitioner; that after the time of redemption expired, the master executed and delivered to her a deed for the same, but that defendants did not deliver up possession of the same to her; that petitioner then caused a copy of the order confirming the master’s report of sale, and a copy of the master’s deed to be served on defendant 0. A. Smith, and thereupon demanded possession of the premises, which he still refused to surrender.
    O. A. Smith, for appellants.
    G. W. Cunningham, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

3. Assistance, Writ of, § 6 —when incident of foreclosure proceedings. A writ of assistance for possession of property, purchased on a foreclosure sale, after the expiration of the period of ' redemption is not a new suit but is an incident of the foreclosure proceedings.

4. Assistance, Writ of—what may not he tried on application for. The title to property cannot be tried on an application for a writ of assistance, as only the right of possession is involved.

5. Assistance, Writ of—•when no advantage may he taken of filing of sworn answer. When no answer is necessary to a petition for a writ of assistance or when the answer under oath is waived, no advantage can be taken by filing a sworn answer.

6. Assistance, Writ of—when no advantage may he taken of absence of replication. Where an answer to a petition for a writ of assistance is necessary and one is filed, if the matter is submitted for hearing without a replication and without objection, no advantage can thereafter be taken of the absence of it.


text:
    R. W. Sutton, Appellee, v. Alexander Hance, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action in trespass for false imprisonment by E. W. Sutton, plaintiff, against Alexander Hance, defendant. From a judgment for , plaintiff, defendant appeals. The plaintiff alleged that he was arrested at the instance of the defendant by a police officer without a warrant.
    Abstract of the Decision.
    False imprisonment, § 28

      —when evidence sufficient to show that plaintiff was arrested on warrant properly issued. In an action in trespass for false imprisonment, where the plaintiff’s sole contention was that he was arrested without a warrant, evidence held to show that he was arrested on a warrant duly issued out of a court of competent jurisdiction.
    P. M. Moore and John H. Chadwick, for appellant.
    W. W. Reeves, Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Eva Conrad, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1915. ■
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action for personal injuries by Eva Conrad, plaintiff, against the St. Louis, Springfield & Peoria Bail-road, a corporation, defendant. From a judgment for plaintiff, defendant appeals.

      Plaintiff boarded a car of defendant at Peoria, Illinois, to be conveyed to Mackinaw. The car was well filled. Some of the witnesses said there were no vacant seats and others that there were. Plaintiff said she saw none. After the car had gone a short distance it came to a stop, and the evidence tended to show that when it started again it did so with a jerk, although there was quite a sharp conflict in the evidence on that point. Whatever the facts were as to the suddenness with which the ear was started, plaintiff was jerked, was thrown, or fell down to the floor of the car. There was a conflict in the evidence in regard to whether she came to a sitting posture or was prostrate upon the floor. She was assisted to arise and accepted a proffered seat and continued her journey to her home town, where she alighted from the car and walked to her home, about four blocks. The next day she went to church and Sunday school, where she says her neck and hips hurt her severely. From there she went to a doctor’s office and was advised to put a hot water bottle on her hips and hot applications on her neck, which she did with good results, but she claimed that she suffered considerable pain as well as other ill results of the fall for several weeks. The extent of her injuries was also seriously contested. She brought this suit later, charging in the first count of her declaration that defendant negligently managed and operated its car and particularly that it negligently and violently started its car; and in the second count, that the car was crowded with passengers and that while she was attempting to get a seat defendant violently, carelessly and negligently started its car suddenly and -with great force and threw her down. She secured a verdict and judgment for $3,375.
    Prettyman, Velde & Prettyman and George W. Black, for appellant; George W. Burton, of counsel.

      Abstract of the Decision.
    1. Instructions, § 7

      —when jury should be instructed accurately. Where the evidence is sharply conflicting, it is important that the jury he instructed with substantial accuracy.
    2. Trial, § 185*—what instruction directing verdict must comntain. An instruction directing a verdict for the plaintiff must include all the elements necessary to a recovery.
    3. Negligence, § 204*—when direction of verdict erroneous. Where a count in a declaration in an action for personal injuries limits the denial of contributory negligence to the instant of the injury, an instruction directing a verdict for the plaintiff on proof of the allegations in such count by a preponderance of the evidence is erroneous, as a plaintiff must negative contributory negligence in getting into the position in which he was when injured.
    4. Negligence, § 208*—when instruction ignoring contributory negligence erroneous. An instruction in a personal injury action to the effect that a common carrier is held strictly responsible for all consequences which directly flow from the negligent conduct of its servant, held erroneous in ignoring the question of contributory negligence.
    5. Negligence, § 228*—when instruction on due care erroneous. An instruction in an action for personal injuries, limiting the necessity of the exercise of due care on the part of the plaintiff to the time of the injury and immediately before that time, held erroneous in consideration of the facts shown.
    6. Appeal and error, § 1542*—when instruction on damages not reversibly erroneous. In an action for personal injuries, an instruction allowing the jury to consider all elements of damage concerning which there was any evidence in the case, held not reversible error where there was no evidence of any elements of damage not declared on in the declaration. ' ,
    7. Damages, § 211*—when instruction allowing damages for prospective suffering and loss of health erroneous. In an action for personal injuries, an instruction that the jury might consider on the question of damages, among other things, “also such pros-, pective suffering and loss of health, if any, as the jury may believe from the evidence before them in this ease the plaintiff has sustained by reason of such injuries, if any, in the future upon the plaintiff," held misleading and erroneous.

      T. N. Smith and Curran & Dempsey, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

8. Evidence, § 437 —when sufficient basis shown for hypothetical question. In an action for personal injuries, evidence that the plaintiff suffered from pain in the hips, held sufficient on which to base a hypothetical question in which “pain in the buttocks" was mentioned as an element of damage.

9. Evidence, § 436*—what facts may be assumed in hypothetical question. In an action for personal injuries alleged to have been sustained by the plaintiff while traveling on the defendant’s railway train, an objection to a hypothetical question put to an expert witness for the plaintiff on cross-examination, assuming that the injury was caused by an automobile accident, concerning which there was nothing in the evidence, but which examining counsel advised the court they expected to prove, held improperly overruled, as in such case any fact which in the sound discretion of the court is pertinent to the inquiry, whether the same has been testified to or not, may be assumed in a hypothetical question to test the accuracy, learning or skill of the witness. •

10. Evidence, § 165*—when report of conductor inadmissible as self-serving statement. In an action for personal injuries alleged to have been sustained by the plaintiff while riding on the defendant’s railway train, a report made by the conductor of the train to the defendant concerning a conversation he had with the plaintiff shortly after the accident, was held inadmissible, as at best it was but a self-serving statement.

11. Appeal and error, § 812*—what bill of exceptions must contain. The conduct of counsel during trial not shown in the bill of exceptions will not be considered on appeal as ground for reversal.


text:
    Adrian B. Cooper and Charles Cooper, trading as Cooper Brothers, Appellants, v. Brown-Danskin Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 177

      —how construed. A contract must be so construed as to carry out the intention of the transacting parties as expressed in the language used.
    2. Exchange of property, § 1*—when inventory price of merchandise given in exchange for land deemed controlling. A contract for the sale of a stock of merchandise by the plaintiffs to the defendant and for the purchase by the plaintiffs from the defendant of land, the amount to be paid for the merchandise to be allowed as credit on the purchase price of the land, 'construed to mean that the defendant, after allowing a specified part of the purchase price of the stock of merchandise as credit on the land, was to pay to the plaintiffs in cash, on the execution of a bill of sale of the merchandise, the difference between such sum and the amount at which it was inventoried at the time of the transfer, and not the difference between such sum and the amount the defendant should realize from the sale of it.

      Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with judgment here.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action by Adrian E. Cooper and Charles Cooper, partners, trading as Cooper Brothers, plaintiffs, against the Brown-Danskin Company, a corporation, defendant, to recover a balance due on a sale of a stock of merchandise. From judgment for defendant, the plaintiffs appeal.
    Edward C. Knotts ajid Victor Hemphill, for appellants.
    James B. Searcy and B. O. Willard, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    William H. Stroh, Thomas Christensen, Fred J. Stein, Henry Brandt, Harmon Heinrichs, Martin Meyer, T. J. Liddle, Charles Sheppleman, Edward J. Steinberg and A. M. Kuntz, Appellants, v. A. J. Casner, Frank Elliott, Peter Leenerman, Henry Zanders and E. Rudolph, President and Board of Education of Sibley High School District, in the County of Ford, and the Sibley High School District, Appellees.
    1. Equity, § 223

      —what is proper practice when part of hill demurred to. Where part of a bill in equity is answered and a demurrer is filed to the remainder, the court should first dispose of the demurrer and, if it is overruled, require an answer to the part demurred tó and hear the issues made, and if the demurrer is sustained, it should hear the issues made by the answer.
    2. Equity, § 229*—when hill may not he dismissed. Sustaining a demurrer to a part of a bill does not authorize the dismissal of the bill where it contains proper allegations not challenged by the demurrer showing a right to the relief asked.
    3. Schools and school districts, § 86*—who may maintain hill to enjoin performance of void contract hy school district. Owners of property and taxpayers in a township high school district may maintain a bill to enjoin the performance of a contract made by such district and claimed to be void when the performance of it would effect the rights generally of the taxpayers of that school district.
    4. Schools and school districts—what powers are possessed by. School districts are municipal corporations and have only such powers as are specially granted to them by the statutes or such as are necessary to carry into effect such granted powers.
    5. Schools and school districts, § 82

      —when school districts no power to make contract. A high school district and a school district, lying within such high school district, have no power to enter into a contract to build and maintain a school building jointly.
    6. Schools and school districts, § 55

      —when officers of schools may not delegate powers. Boards of education of township high schools and boards of directors of district schools cannot delegate to others the discretionary powers conferred upon them by law.
    7. Schools and school districts, § 86

      —when taxpayer may enjoin fulfilment of contract for construction of school building. A taxpayer in a high school district may enjoin such district and the board of education therein from carrying out an alleged contract with the directors of a school district, situated within such high school district, providing for the joint construction and maintenance of a school building.
    Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Cloud & Thompson, for appellants.
    Kerr & Lindley, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellants, owners of property and taxpayers in the Sihley Township High School District in the County of Ford, filed their bill in chancery against that high school district and its board of education, praying for an injunction and restraining the defendants from issuing certain proposed bonds to the amount of $12,000, and from carrying out “an arrangement” or contract already entered into with School District No. 48, lying within said Sibley High School District, and its board of directors, to jointly build and maintain on the site of the schoolhouse of said District No. 48, a building to be used jointly by the two districts for school purposes.

Appellees answered so much of said bill as referred to the bond issue, confessing the allegations thereof and admitting that they should be enjoined from issuing such bonds, and filed a demurrer to the balance of the bill. The court, without first disposing of the demurrer, heard the part of the bill answered unto and granted the relief therein prayed. Later the demurrer was heard and sustained. Just what was done by the court with the bill when the demurrer to part of it was sustained is left in doubt. On page 25 of the transcript it is recited ¿hat a decree was entered “dismissing the bill of complaint for want of equity * * * which said decree is a separate written and signed decree in the words and figures following, towit.” Then follows a decree showing the sustaining of the demurrer and the dismissal of that part of the bill demurred to for want of equity, but reciting that as the bill was properly filed to restrain the bond issue, the defendants (appellees) should pay the costs.

Again on page 32 of the 'transcript appears what purports to be the clerk’s record of the same proceedings, showing the hearing on the demurrer, that it was sustained and that a decree was entered “dismissing the bill of complaint for want of equity.”

As we view it, it is immaterial whether the bill or part of it was dismissed, either of such orders would be erroneous.

The practice of answering a part of a bill and demurring to the balance, at the same time, in one paper or pleading, while perhaps permissible in some cases, is not to be favored, and when it is done' the court should dispose of the demurrer first, and if it is overruled, require an answer to so much of the bill as has not already been answered, and then hear the case on all the issues so made by the pleadings, thereby obviating the necessity of separate hearings on the merits of the separate issues made by the pleadings. In ease the demurrer is sustained, the court should then hear and determine the issues that are made on the part of the bill answered. Sustaining a demurrer to part of a bill does riot authorize the dismissal of a bill where it contains proper allegations not challenged by the demurrer showing a right to the relief asked. Beau-champ v. Gibbs, 1 Bibb (Ky.) 481; Cole v. Cole, 69 N. J. Eq. 3 (59 A. 895); Kollehner v. Brown, 143 Ill. App. 425.

That appellees as owners of property and taxpayers in the township high school district may maintain a bill to enjoin the performance of a contract made by such district and claimed to be void, when the performance of it would affect the rights generally of the taxpayers of that school district, has been settled by the Supreme Court. Stevens v. Henry County, 218 Ill. 468; Lindblad v. Board of Education, 221 Ill. 261.

Counsel for both appellants and appellees have argued this case upon the apparent theory that the sustaining of appellees’ demurrer amounted to a holding by the court that the contract sought to be enjoined was a legal one, and that the bill is sufficient, when the truth of the averments therein contained is confessed by the demurrer to fairly present the question of the legality or illegality of such contract to the court for determination. We will therefore limit ourselves to the determination of that question.

Before the contract can be held to be a legal contract two questions must be answered in the affirmative: First, Can two school districts lawfully unite in building and maintaining a schoolhouse to be used by the two districts jointly? Second, If it would otherwise be legal to so build such a building, would the fact that' one person was a member of both the Board of Education of the Township High School District and the Board of Directors of School District No. 48 render such contract void?

School districts are municipal corporations. As such they have only such powers as are expressly granted to them by statute or such as are necessary to. carry into effect such granted powers. Harris v. Kill, 108 Ill. App. 305; School Directors v. Fogleman, 76 Ill. 189.

We have been cited to no express grant to school boards to do the tilings contemplated by the contract sought to be enjoined, and indeed it is not claimed that any such power has been expressly conferred upon such boards, but if we understand the argument of appellees, it is contended that from the power to build schoolhouses and maintain schools which both the Township High School District and District No. 48 undoubtedly have, an implied power arises to do those things jointly. We cannot subscribe tq that contention. The power given to school districts to build schoolhouses and the power and the duty as well, which is clearly theirs, to maintain public free schools is coupled with ample and expressly defined means by which those things may be accomplished.

By pursuing the means specifically provided by statute, schoolhouse sites may be chosen, purchased and paid for; schoolhouses built and paid for; teachers hired and paid, and schools maintained and the expense thereof paid. No power is granted to or duty imposed upon a school district in these matters which either requires or authorizes a sharing of responsibility, burden or benefit with any other district. The power on the part of appellee to make the contract in question not being necessary in order that it may perform any duty expressly imposed on it or exercise any power expressly given it by law, it cannot be implied.

While the bill does not contain any sufficient averments showing that the contract in question included a joint operation of the schools by the combined boards of the two districts, the prayer for relief seems to have been drafted upon the theory that such joint operation was contemplated by the terms of the contract. If it was so included, such provisions would be void for the same reason as has already been suggested, and for the further reasons that the law has given to the boards of education of township' high schools and the boards of directors of district schools throughout the State many distinct discretionary powers, as, for instance, the employment of teachers, the salary to be paid them, the amount of school to be held, the studies to be taught and many others. The law contemplates that these discretionary powers shall be exercised by those who have been chosen by the people as members of these respective boards, and the people have a right to have those powers exercised by those only in whom they have so placed their confidence; and not by such persons and others jointly. These discretionary powers cannot be delegated. Lindblad v. Board of Education, 221 Ill. 261.

Again the discretionary powers of the two boards, while in many respects similar, and in some particulars possibly identical, are also in many respects different. To illustrate, the high school board may establish grades and manual training and domestic science departments. No such authority is given the board of directors of district schools. Other such instances might be cited.

Any contract .between a board of education of a township high school by which it is attempted to delegate to or share any of these discretionary powers with a board of directors of a district school is void, and if the performance of such contract involves the expenditure of the money of either of such districts, its performance may be' restrained by injunction at the instance of a taxpayer of such district. Stevens v. Henry County, 218 Ill. 468; Lindblad v. Board of Education, 221 Ill. 261.

For the reasons suggested; the order of the Circuit Court sustaining the demurrer to the bill and dismissing the same is reversed and the cause is remanded to that court with directions to overrule the demurrer and to grant leave to complainants, if they shall seek such leave, to amend their bill so as to show more clearly the terms and provisions of the contract sought to be enjoined, especially with respect to the proposed use in common of such proposed school building by such contracting districts after the same is completed, and for such other proceedings as are not inconsistent with the views here expressed.

In view of what has been said, it will be unnecessary to determine the question whether the fact that one person was a member of both boards when the contract in question was entered into will render the contract void. We think, however, that the point is controlled by what was said by the Supreme Court in City of Chicago v. Tribune Co., 248 Ill. 242.

Reversed and remanded with directions.


author: Mr. Justice Thompson

text:
    Catherine Gehrig, Administratrix, Appellant, v. Chicago & Alton Railroad Company, Appellee.
    1. Death, § 73

      —when instruction on coroner’s verdict as prima facie proof of death erroneous. In an action for death, the elimination of the words “the cause and manner of” from an instruction requested by the plaintiff, to the effect that the coroner’s verdict rendered on an' inquest on the body of the plaintiff’s intestate was prima facie proof of the matter therein stated, in so far as it related to the cause and manner of the death, held erroneous.
    2. Death, § 73*-—when instruction on effect of coroner’s verdict

      on inquest erroneous. An instruction in an action for death stating that, in the absence of any evidence contradicting the findings therein, a verdict of a coroner’s jury rendered on an inquest on the body of the deceased should be taken as true as regards the cause and manner of death, held erroneous as directing the jury as to the weight to be given such evidence, and as directing the jury’s attention to evidence tending to prove matters in issue between the parties.
    3. Appeal and error, § 1241

      —when party cannot complain of instruction. A party cannot complain of the giving of an instruction where an instrtiction identical therewith was given at his own request.
    4. Instructions, § 91*—when instruction on weight of evidence misleading. An instruction stating that if the jury should be in doubt and be unable to say on which side the greater weight of the evidence was, the plaintiff could not recover, held misleading, as the jury might be in doubt where the preponderance was still believed to be on the side of the plaintiff.
    5. Trial, § 185*—when instruction directing verdict misleading. An instruction directing a verdict upon the determination of the preponderance of the evidence, held misleading in not restricting the reference to the material issues in the case and in repetition of the.words “to find for the plaintiff,” or equivalent expressions.
    6. Negligence, § 213*—when instruction on ordinary care misleading. In an action for death, the use of the word “could” for the word “would” in an instruction as to the care required of the plaintiff’s intestate, stating that if the jury believed “the accident could have been foreseen or prevented” by the deceased by the exercise of ordinary care they should find for the defendant, held misleading.
    •7. Negligence, § 213*—when instruction on contributory negligence misleading. In an action for death, an instruction that the plaintiff could not recover if the deceased had done any acts which contributed to his death, held misleading in not stating that such act must have been one done while the deceased was not in the exercise of ordinary care.
    8. Railroads—when instruction on mutual rights of railroad and person approaching crossing erroneous. An instruction that a railroad company was not required to slacken its speed on approaching a highway crossing in an unincorporated village and that it was the duty of a person approaching such highway crossing to look out for trains and keep in the clear, held erroneous.
    •9. Railroads, § 779*—when instruction on care required of per

      son approaching crossing erroneous. An instruction stating that a person familiar with a crossing of a public highway over a railroad is bound to use care in approaching and passing over it proportionate to the danger, if any, of so approaching and crossing it, held erroneous, as such care need only be proportionate to the known danger or to the danger reasonably to be expected there.
    10. Railroads, § 779

      —when instruction on care required of person approaching crossing erroneous. An instruction that where a crossing from its location is more than ordinarily dangerous, persons using it are bound to use more than ordinary care in crossing it, proportionate to the danger, held erroneous, as ordinary care is all that a person is required to use, and is such care as an ordinarily reasonable and prudent person would use under all the circumstances and conditions existing at the time or place which are, or ought to be, known to the party.
    11. Instructions, § 20*—when instruction on propriety of juror consenting to verdict erroneous. An instruction that no juror should consent to a verdict which did not meet with the approval of his own judgment, held erroneous, as it was a suggestion or bid for a disagreement.
    12. Instructions, § 118*—when should not he given. Instructions should not be given unless there is some evidence on which to base them.
    13. Instructions, § 14*—when repetition of expression improper. Repetition in instructions of the expression that the jury should find for the defendant, held improper, as liable to give the jury the impression that the court was expressing an opinion on the merits of the case.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    W. J. Reardon, for appellant.
    Curran & Dempsey, for appellee; Winston, Payne, Strawn & Shaw, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number..

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case begun by appellant, Catherine Gehrig, administratrix of the estate of John Gehrig, deceased, against the Chicago & Alton Railroad Company, to recover damages for the benefit of the next of kin of John Gehrig, whose death is averred to have been caused by the negligence of the appellee. The negligence averred against appellee - is general negligence in running a train and failure to give either of the required statutory signals.' On a trial before a jury a verdict was returned in favor of the appellee, on which judgment was rendered.

On the night of January 18, 1914, John Gehrig’s body was found with the head severed from it, upon the tracks of the Peoria & Pekin Union Railway at Wesley Crossing, a public highway crossing of said tracks in Wesley City, an unincorporated village. The trains of appellee run over said tracks. It was admitted in the record by appellee that Wesley Crossing is a public highway and that John Gehrig was killed by the Chicago and Alton train that came out of the hump yards about two or three minutes before nine o’clock that night, but it was not admitted that John Gehrig came to his death by being struck by a Chicago & Alton train as stated in the coroner’s verdict. No witness saw how Gehrig came to his death. The appellant contends that he was struck by the locomotive of appellee on the crossing, while appellee contends that it was not guilty of any negligence and that Gehrig lost his life by attempting to get on the train and falling between the cars.

Since the case must be reversed for errors in giving and modifying .instructions, it is unnecessary to review the evidence at this time.

The appellee introduced in evidence the verdict of the coroner’s jury, the material part of which is: “that the said John Gehrig, now lying dead at Kneck’s morgue in the said City of Pekin, County of Tazewell, State of Illinois, came to his death by being struck by C. & A. train No. 97, engine No. 310, south bound, on the south part of the crossing of the public road, in-Wesley City, on the night of January 18, 1914, at about 9 p. m. This accident occurred on the P. & P. U. tracks at Wesley City.”

The first instruction given at the request of appellee told the jury that the coroner’s verdict was admitted for the sole purpose of establishing the death of Gehrig and not for the purpose of proving or tending to prove how he came to his death.

The appellant requested that the following instruction be given the jury: “The court instructs you, that the coroner’s verdict, admitted in evidence, is the result of a public inquiry held upon the body of John Gehrig, and such verdict is prima facie proof of the matters therein stated, in so far as it relates to the cause and manner of the death of said John Gehrig; and in the absence of any evidence contradicting such finding, then such finding should be taken as true and may be acted upon by the jury. ’ ’ The court erased the words “the cause and manner of” and gave it as thus modified. Section 10 of chapter 31 of the Statute (J. & A. ¶ 2400) provides: “Every coroner, whenever and as soon as he knows or is informed that the dead body of any person is found, or lying within his county, supposed to have come to his or her death by violence, casualty or any undue means, he shall repair to the place where the dead body is, and take charge of the same and forthwith summon a jury of six good and lawful men * * * and upon view of the body to inquire into the cause and manner of death.” Section 14 (J. & A. ¶ 2405) of the same chapter provides: “It shall be the duty of the jurors * * * to inquire how, in what manner, and by whom or what the said dead body; came to its death, and of all other facts of and concerning the same, together with all material circumstances in any wise related to or connected with said death, and make up and sign a verdict and deliver the same to the coroner.”

The statute requiring the jury to inquire into the cause and manner of death, it was erroneous to erase from appellant’s instruction the words stricken out by the court and to give the first instruction requested by appellee. United States Life Ins. Co. v. Vocke, 129 Ill. 557; Foster v. Shepherd, 258 Ill. 164. The instruction requested by appellant was erroneous in telling the jury the weight that they should give to the evidence therein mentioned, and particularly in directing the attention of the jury to evidence that tended to prove the contention of one of the parties concerning which there was a controversy. The verdict was evidence that should be considered by the jury with all the other evidence in the case.

The appellant insists that the seventh instruction given at the request of appellee is erroneous. This is an instruction frequently given and states that “the greater weight of evidence in the case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the greater weight of the evidence is, the jury should take into consideration,” etc.. The first instruction given at the request of the appellant is identical both in wording and punctuation with tho instruction of which appellant complains. Counsel for appellant has no reason to complain of errors made by himself. The instruction has been held to be erroneous (Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621; Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409), in omitting the element of the number of witnesses testifying on either side of any fact or set of facts.

The fourteenth instruction given for appellee is misleading in telling the jury if they are in doubt and unable to say on which side the greater weight of the evidence is, then the plaintiff cannot recover. The jury might be in doubt where the preponderance is and still believe it is on the side of plaintiff. The instruction also contains the statements “before she can recover,” “she cannot recover,” “should be in favor of defendant” and “plaintiff cannot recover,” following certain propositions as to the weight of the evidence. The instruction directs a verdict upon the determination of the preponderance of the evidence and is misleading in not restricting the reference to the material issues in the case and in the repetition of the words “to find for the appellant,” or equivalent expressions. Thiele v. Hetsel, 184 Ill. App. 633.

Appellee’s instructions numbers 17, 19, 27 and 29 are misleading and erroneous in the use of the words “might” or “could” for the word “would” in propositions concerning due care, such as: If you believe “the accident could have been foreseen or prevented” by Gehrig by the exercise of ordinary care you should find for the defendant.

Appellee’s instruction No. 21 told the jury that if Gehrig did any act that contributed to his death the plaintiff could not recover. If the deceased was not in the exercise of ordinary care or his negligence and want of ordinary care contributed to his death the appellant could not recover, but the instruction was clearly misleading as given. The fact that Gehrig went near the railroad contributed to his death, but he could go near the railroad and still be in the exercise of due care.

Appellee’s twenty-second instruction tells the jury that the State does not require the appellee to slacken the speed of its train in approaching the crossing known as Wesley Crossing, and it is the duty of persons on the highway in approaching the crossing at that place to look out for the approach of trains and to keep in the clear. It was the duty of Gehrig-to use due care in approaching and passing over the crossing, and the railway company had the right to run its trains at such speed as was consistent with the safety of travelers crossing the highway in the exercise of due care. (Passwaters v. Lake Erie & W. R. Co., 181 Ill. App. 44.) The instruction as given, in substancetells the jury that the deceased must have stopped, looked and listened and that the railroad had the right to run the train at any speed regardless of the rights of travelers, and is erroneous. Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 137.

Appellee’s twenty-third instruction tells the jury that a person familiar with the crossing of a public highway over a railroad is bound to use care in approaching and passing over such crossing proportionate to the danger, if any, of so approaching and crossing it. The instruction should be proportionate. to the known danger or the danger reasonably to be expected there.

Appellee’s twenty-fourth instruction tells the jury that where a crossing from its location is more than ordinarily dangerous, persons using the same are bound to use more than ordinary care in crossing the same in proportion to the danger. Ordinary care is all that a person is required to use, and is such care as an ordinarily reasonable and prudent person would use under all the circumstances and conditions existing at the time . and place which are, or ought to be, known to the party. Miller v. Eversole, 184 Ill. App. 362. Appellee’s twenty-sixth instruction told the jury that no juror should consent to a verdict which does not meet with the approval- of his own judgment, etc. This instruction was a suggestion or bid for a disagreement and should not have been given. City of Evanston v. Richards, 224 Ill. 444.

Appellee’s thirty-fifth instruction tells the jury if they believe from the evidence that the deceased was killed by said train while attempting to get on it to ride, then he was a trespasser and appellant cannot recover. We do not find in the record any evidence that the deceased was trying to get on the train to ride, and appellee has not pointed out any evidence of such fact or any evidence from which such a circumstance might reasonably be inferred. Instructions should not be given unless there is some evidence on which to base them.

The court gave twenty instructions for appellant and thirty-five for appellee, many of them repeating. the same propositions of law. Those of appellant were misleading and very liable, from the repetition of the expression that “the jury should find for the defendant” to give the jury an impression that the court was expressing an opinion on the merits of the case.

For the errors pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.