author: Per Curiam.

text:
    Security Trust & Savings Bank of Charles City, Iowa, Appellee, v. E. C. Telford and Joseph Telford, Appellants.
    1. Fraud, § 9

       — when party may not say that other party signing agreement was negligent. A party guilty of fraudulent conduct whereby he induces another to execute a written agreement will not be allowed to impute the negligence to the latter as against his own deliberate fraud even where the parties are dealing at arms’ length.
    2. Sales, § 51* — when parol evidence is admissible to show real contract as to warranty of tractor. Where the purchaser of a tractor is unable, due to failing eyesight, to read an order for the purchase of machinery which contains a warranty with a provision that the retention and use for six days of the machine without giving notice of a failure of warranty within such period constitutes an acceptance of the tractor, and relies, in signing it, on the fraudulent statement of the seller’s agent that it contains simply a mere order, parol evidence is admissible to show what the real contract was as to a warranty, and this does not contravene the rule that parol evidence is not admissible to change or vary the terms of a written contract.
    3. Sales, § 24* — when seller's ggent is guilty of fraud in procurance of order for tractor. The agent of the seller of goods is guilty of fraud in the procurance of an order for the purchase of a tractor where the purchaser is unable to read, owing to failing eyesight, and relies upon the agent’s statement that the writing is a mere order, when in fact it contains a provision as to warranty at variance with a prior agreement as to warranty and also a provision that it is the only agreement between the parties.
    4. Bills and notes, § 246* — when note is subject to same defenses in hands of purchaser as if in hands of payee. A chattel mortgage note, which indicates on its face its nature, is subject to the same defenses in the hands of a purchaser for value before maturity as it would be in the hands of the payee.
    Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.

      William H. Green, Stanley Watson and Albert Watson, for appellants.
    Kagy & Vandervort, for appellee.

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

   Per Curiam.

On March 7, 1916, the plaintiff obtained a judgment by confession, in vacation, against the defendants upon three promissory notes for a total amount of $2,373.50 and costs. Later on the defendants entered a motion in the Circuit Court of Marion county, Illinois, to vacate said judgment and for leave to plead therein. Leave was granted to the defendants to file pleas to the merits of the case but the judgment was not vacated. The defendants filed the plea of general issue and a special plea. The special plea avers that in the spring of 1912 the Hart-Parr Company sold the defendants a gas tractor engine, and warranted the same sound and fit for pulling plows and for doing defendants’ work on their farms and orchards at all times of the year when plowing should be done by draft animals, for which tractor the defendants paid cash $500 and executed their notes for the balance of the purchase price; and then avers that the engine was unsound and not fit to do the work as warranted, and that after repeated attempts to make it do the work it failed and the engine was taken back by Hart-Parr Company, and that thereupon another engine was purchased and the $500 paid was credited upon the second engine, and upon the sale of the second engine Hart-Parr Company agreed that it was sound and fit for pulling plows and for doing defendants’ work on their farm and orchard at all times of the year when plowing could be done by draft animals, and that in case the said engine would not do all of the work it was warranted to do the said Hart-Parr Company would take it back and return to the defendants all of the consideration received therefor, and that the defendants relying upon said warranty made and delivered said notes to the said Hart-Parr Company.

The plea further avers that the said notes were secured by a chattel mortgage and that it was so recited upon the face of the notes.

The plea then avers that the said engine would not and did not do the work as warranted and that the Hart-Parr Company after being notified of the aforesaid facts would not and did not make good the aforesaid warranty made by them. And then avers that the engine was valueless to the defendants. To this special plea the plaintiff filed three replications. The first was that the plaintiff purchased these notes from Hart-Parr Company in the regular course of business for a valuable consideration, and without notice of the claims set out by defendants in their said plea. To this replication a demurrer was sustained.

Plaintiff’s second replication to said special plea alleges that the tractor engine was sold to defendants under a written order and warranty, which provided that it was the only agreement expressed or implied between said Hart-Parr Company with the defendants relative to said tractor, and that use by defendants of said engine for six days constituted a complete acceptance of the same and that, in effect, if the engine failed to perform according to the warranty aforesaid said defendants must give the Hart-Parr Company notice as therein specified, and that the defendants accepted the said engine and did not give the notice to the Hart-Parr Company above referred to. The plaintiff’s third replication to the special plea sets out a written contract between Hart-Parr Company and the defendants by the terms of which agreement it was provided that Hart-Parr Company should furnish to defendants a tractor engine of the kind described, subject to the warranty printed in said contract, and the defendants were to pay the price of $2,288.39, which was to be paid in cash $431.39 and the remainder in three notes of $619, secured by a chattel mortgage, and that in the said agreement was a warranty that if properly operated it will develop its rated brake horsepower continually and that on firm level footing it will do the equivalent of as many ordinary work horses, and then provides that should any part, except batteries and belting, prove defective within ten months from delivery through inferior material or workmanship, that such defective part shall be furnished by Hart-Parr Company on board cars at its factory; and further provided that, “If inside of six days from its first use it shall fail to fill the warranty with respect to the development of power, notice shall be given the Hart-Parr Company, at their office at Charles City, Iowa, by registered letter or telegram, stating particularly wherein it fails to fill the warranty. ’ ’ And further provides that the use of the engine after the expiration of the six days named shall be conclusive evidence of the acceptance of the same and full satisfaction to the defendants. It also provides that this is the only agreement, express or implied, between Hart-Parr Company and the purchaser relative to the machinery above mentioned. And then avers that after the making of said agreement defendants received the engine and used it more t.bau six days and gave no notice of any defect therein. To these replications the defendants filed rejoinders, the first of which avers that the execution of the said written order and warranty set foidh in the plaintiff’s third replication was obtained from the defendants by the said Hart-Parr Company by fraud, in this, that the agent of the said Hart-Parr Company fraudulently represented to the said defendant Joseph Telford that the said wilting was merely an order for the gas tractor engine and contained no agreement or warranties of any kind, and that the said engine, if so ordered, would be delivered to the said defendants on the terms and Warranties set forth in the second plea of the defendants. And that the said agent of the Hart-Parr Company knowing that the defendant Joseph Telford, was unable to read the writing himself by reason of age and failing sight, and that through his reliance upon the fraudulent statements and representations of the said agent of the said Hart-Parr Company the said defendant Joseph Telford signed said writing. The second rejoinder to the said replication is to the same effect, varying in its terms. To these rejoinders a demurrer was interposed by the plaintiff and the court sustained the demurrer. The defendants then elected to stand by their rejoinders and the cause was tried upon the declaration and plea .of general issue.

It further appears that the bill of exceptions has not been properly preserved in this case and was stricken from the files, and the questions involved will have to be determined by the pleadings alone.

It will be observed that the rejoinders aver fraud and false representations in the obtaining of the written agreement that is set up in the replications in bar of defendants’ special plea. It is contended by counsel for appellee that the “Bejoinders specifically say that these supposed verbal warranties and this representation made by C. H. Swanson, the authorized agent of the Hart-Parr Company, was made before the execution of the writing and before the execution of this written order. It was principally for this reason that the Circuit Court sustained a demurrer to the rejoinders”; and argues that inasmuch as the supposed representations were made prior to the signing of the written order for the engine they cannot under any circumstances be considered, and that to consider them would violate the principle; that all agreements and statements made prior to the execution of the order must be considered as having been included therein; and claims that it is especially true in this, case because the written agreement specifically states that all contracts or agreements are contained within this written article. We fully appreciate that the principle of law herein contended for is a correct one, and that if this is' a valid agreement entered into by these parties they would be concluded by it, but the rejoinders in this case dispute the validity of this agreement. They say that the agreement presented by these rejoinders was obtained by fraud and false representations as to its contents, and then allege that the defendant Joseph Telford because of failing eyesight and the want of glasses was not able to read it, which plaintiff’s agent knew, and knowing that inserted in the agreement provisions that changed the contract entered into between Telford and the agent. If the agreement was procured by fraud and false representations then it is void, and the party procuring it can obtain no benefit therefrom. A party guilty of fraudulent conduct whereby he induces another to execute a written agreement will not be allowed to impute the negligence to the latter as against his own deliberate fraud, even where the parties are dealing at arms’ length. Linington v. Strong, 107 Ill. 295. “As between the original parties, when it appears that one has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other has been misled and influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable care and diligence.” Howell v. Wyatt, 168 Ill. App. 656, and cases there cited. It has been determined by this court in the case of Alfred Shrimpton & Sons v. Dunaway, 52 Ill. App. 448, that where an agreement was entered into between an agent of the plaintiff and the defendant upon terms agreed upon, that the agent then prepared the agreement but in its preparation made it different from the real agreement entered into, and the defendant without reading it directed his son to sign it, that it was such a fraud upon the defendant as would avoid the terms of the written contract. Proof tending to show that a certain agreement was made and that thereafter a written agreement was prepared but was not in accordance with the real agreement but contained another and a different agreement, and that before signing it was falsely and fraudulently represented to contain the exact agreement made, is not any violation of the principle that oral evidence cannot be introduced to vary the terms of a written contract. “We are of the opinion, also, the parol evidence was properly admitted to prove the real contract of the parties, and that the execution of the order evidencing another and different contract was procured by the fraud and circumvention of plaintiffs ’ agent. This ruling does not contravene the rule that parol evidence is not admissible to change or vary the terms of a written contract, and is the law in this State, as announced by our Supreme Court in repeated decisions, among which is Black v. Wabash, St. L. & P. Ry. Co., 111 Ill. 351.” Alfred Shrimpton & Sons v. Dunaway, supra. It must be borne in mind in this case that the defendant Joseph Telford was unable on account of his failing eyesight to read the agreement, and the representation to him under such conditions would have the same effect as if he was unable to read at all. It has been held in the case of R. J. Gunning Co. v. Cusack, 50 Ill. App. 294: “If the paper, under which the appellant claimed, was misread to Schilling, and he was deceived into signing for a period of three years, when told that it was for only one, the paper was void; Auten v. Gruner, 90 Ill. 300; and Schilling had the right to disregard it, certainly at the end of one year, and grant the right to use the wall to the appellee, who would be entitled to the aid of the law to protect him in that use.”

It appears to us that according to the averments of these rejoinders that the agent of the appellee was guilty of the making of false and fraudulent statements as to the contents of this agreement for the purpose of securing the signatures of the defendants thereto, and, if this is true, then under no conditions could he reap any benefit from this fraudulent act, and we think that it was a question of fact to be submitted to the jury as to whether or not he was guilty of the fraud charged. If the fraud charged should be proven, then the agreement would be void and the contract set up in defendants ’ special plea could be shown to be the real agreement between the parties. This being a chattel mortgage note, as shown by a recital contained in the face of the note, it was subject to the same defenses in the hands of appellee as it would be in the payee.

We are of the opinion that the court erred in sustaining the demurrer to appellants’ rejoinders, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Fred Lowrance, Appellee, v. American Glycerin Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bailment, § 11

       — what degree of care required of bailee for hire. A bailee for hire is bound to use ordinary care in the preservation of the property and such care as an ordinarily prudent man would bestow upon his own property.
    2. Bailment, § 11* — what is duty of bailee as to condition in which to return horse. Where a horse is delivered to a bailee for hire in good condition, it is his duty to return the animal in the same condition or show that he was not negligent in the care of the horse.
    3. Appeal and error, § 878* — what must be preserved in abstract. Objections and exceptions to the admission of evidence must be preserved in the abstract for the purpose of review of the question of the admissibility of the evidence.
    Appeal from the Circuit Court of Crawford county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 15, 1918.
    Statement of the Case.
    Action by Fred Lowrance, plaintiff, against American Glycerin Company, a corporation, defendant, to recover for the negligent death of plaintiff’s horse which had been loaned to defendant. From a judgment for plaintiff for $200, defendant appeals.
    Newlin, Parker & Newlin, for appellant.
    Jones & Lowe, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Witnesses, § 278* — when witness may he impeached hy contradictory statements. Where, in an action against a bailee for hire for the negligent death of plaintiff’s horse, after cross-examination of defendant’s driver, who had testified that he had driven the horse carefully and had seen nothing the matter with him until noon of the day he died, as to whether or not he had stated to certain persons that the horse was “off feed” and had been dragging for two or three days and had replied in the negative, and counsel for defendant asked the witness on redirect examination to give the conversations had with such persons, which he did, it was competent to show by way of impeachment that the witness made contradictory statements.

5. Bailment, § 27* — when negligence in care of horse shown. In an action against a bailee for hire for the negligent death of plaintiff’s horse, evidence held to sustain a finding that the horse died as the result of the want of due or reasonable care upon the part of defendant’s servant.


author: Mr. Justice Higbee

text:
    Joseph C. Reynolds. C. H. Burton, Petitioner, Appellant, v. Alton, Granite & St. Louis Traction Company, Appellee.
    Attorney and client, § 149a

       — what is not sufficient service of notice of attorney’s lien. The service of a notice for an attorney’s lien upon the attorneys for defendant is not in compliance with the requirements of the statute (Hurd’s Rev. St. ch. 82, sec. 55, J. & A. If 611), providing that attorneys claiming a lien upon claims, demands and causes of action placed in their hands for suit or collection by their clients shall “serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien,” etc.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    D. H. Mudge, for appellant C. H. Burton.

      Burroughs & Ryder, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Madison county, Illinois, dismissing the petition of appellant, C. H. Burton, to enforce against appellee an attorney’s lien, on May 11, 1912.

Appellant, as attorney for Joseph C. Reynolds, filed suit against appellee to recover damages for injuries sustained by Reynolds while attempting to board one of its cars in the Village of Madison. The firm of Burroughs & Ryder, afterwards Williamson, Burroughs & Ryder, represented appellee in the suit, and on May 29, 1912, filed a plea of not guilty in the case. Appellant had a written contract with Reynolds by which he was to receive 25 per cent, of whatever sum or sums should be obtained by compromise or suit in the Circuit Court, 5 per cent, additional in the Appellate Court, and 5 per cent, more in the Supreme Court. On May 18, 1912, appellant gave notice of his employment and claim of lien by giving the same to Burroughs & Ryder, who acknowledged receipt of same as attorneys for appellee. Trial was had at the January term, 1913, and judgment rendered in favor of Reynolds for $6,000. March 8, 1913, an assignment to appellant of 35 per cent, of this judgment was filed in the office of the clerk of the Circuit Court of Madison county. On appeal to this court that judgment was reversed and the cause remanded. [183 Ill. App. 538.] On the second trial of the case a judgment was rendered June 17, 1914, against appellee for $8,000, which was affirmed by this court [194 Ill. App. 87] but was afterwards reversed by the Supreme Court and the cause remanded. [273 Ill. 207.]

It appears that following the second judgment another assignment of 35 per cent, of the judgment by Reynolds to appellee was filed in the office of the circiiit clerk and that the firm of Williamson, Burroughs & Byder, as attorneys for appellee, acknowledged receipt of the notice of assignment. While a petition for rehearing was pending in the Supreme Court the case was settled, on May 4, 1916, for $2,000 through one C. H. Bartels, claim agent for appellee, without the knowledge or consent of the appellant. Upon learning of this settlement appellant made demand on the Traction Company for 35 per cent, of the $2,000, which the company refused to pay, and appellant filed this petition to enforce his attorney’s lien for $700. After hearing the evidence the court dismissed the petition and entered judgment against appellant for costs. The record shows that appellant served notice of his employment and claim for lien upon attorneys for appellee, and the sole question for us to consider upon this record is whether such service complies with the requirements of the Attorney’s Lien Act. The statute under which this cause arises, after providing that attorneys shall have a lien upon all claims, demands and causes of action placed in their hands for suit or collection by their clients, contains the following: “Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien, ’ ’ etc. Hurd’s Rev. St. ch. 82, sec. 55 (J. & A. 611).

In the case of Haj v. American Bottle Co., 261 Ill. 362, which was a proceeding to enforce an attorney’s lien, it was proved that notice was given to the party against whom judgment had been obtained by mail. The Supreme Court, in reversing the judgment of the trial court allowing the petition, said: “The statute creating the attorney’s lien creates a liability unknown before the passage of the act, and where that is the case the statute must be strictly followed. It requires notice, differing in that respect from the statute in New York and perhaps other States, and as it specifies no other method of service, personal service, under all the authorities, is required. The appellee not having complied with the statute creating the lien is not entitled to one.”

This court in Jackson v. Toledo, St. L. & W. R. Co., 186 Ill. App. 531, following Haj v. American Bottle Co., supra, held that there must be personal service of the notice of lien, and that such personal service should follow the law as to the service of process where the party to be served is a corporation, that therefore service of the notice, of lien upon the attorney for the party against whom the lien is sought to be enforced is not a compliance with the statute. It follows from these decisions that the notice in this case was not in compliance with the requirements of the statute and therefore the lien cannot be maintained. The judgment will be affirmed.

Affirmed.


text:
    John Campbell, Defendant in Error, v. T. J. O’Gara et al., Trustees, Plaintiffs in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Statement of the Case.
    Action by John Campbell, plaintiff, against T. J. O’Gara, William Niblack and E. Weltman, as trustees in bankruptcy for the O’Gara Coal Company, a corporation, defendants, to recover damages for personal injuries sustained by him while working in the company’s mine. From a judgment for plaintiff for $9,000, defendants bring error.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1165

       — when only question for review is whether facts proved constitute cause of action. Where no complaint is made in a negligence ease that the trial court committed any error in its rulings on the evidence or in the giving or refusing of instructions, or that the verdict is excessive, the only question for review is whether the facts in proof constitute a cause of action.
    2. Mines and minerals, § 108* — what constitutes dangerous; condition in mine. The existence of a hole extending the full length of a curtain placed over the second crosscut from the face of coal in a mine where a miner is working so as to permit the proper circulation of air is a dangerous condition in the mine which should have been marked by the mine examiner, where the tendency of such a hole is to short-circuit the air and prevent the proper amount from circulating at the face of the coal and the removal of explosive gases released by undercutting coal and boring holes.
    3. Witnesses, § 253* — province of jury as to credibility. It is the province of the jury to determine the credibility of witnesses.
    Miley & Combe, for plaintiffs in error; A. E. Somers, of counsel.
    Lewis, Ronalds & Lewis and Clark & Hutton, for defendant in error.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    D. E. Keen, Defendant in Error, v. Melchoir Leipold et al. George S. Clarke, Plaintiff in Error.
    1. Judgment, § 124

       — what is nature and effect of default. A default admits only that the facts alleged in the declaration are true, and not that they constitute a cause of action, and if in law they do not constitute a cause of action, no judgment should be rendered by default on the declaration.
    2. Bills and notes, § 346* — when declaration is sufficient to show demand of payment and notice of nonpayment. A declaration in an action on a promissory note alleging the indorsement by one defendant as payee to plaintiff, the holder, that the defendants, in consideration of their alleged liability to pay the note, promised the plaintiff to pay him the amount thereof according to the tenor and effect of the note, that although requested to do so the defendants have not paid the sums of money specified or any part thereof but refuse to pay the same, is sufficient to show demand of payment and notice of nonpayment, in the absence of a demurrer, especially where a defendant is defaulted after personal service.
    3. Appeal and ebbob, § 1303* — when evidence presumed sufficient to support judgment. Where no evidence is preserved by the record, it must be presumed that the evidence was sufficient to support the finding and judgment of the trial court.
    4. Judgment, § 170* — when sufficient in form. No particular form is required in the proceedings of a court to render their order a judgment. It is sufficient if it be final and the party may be injured.
    5. Judgment, § 170* — when judgment in action on note is proper in form. In an action of assumpsit on a promissory note, a judgment reciting that plaintiff appears by his attorneys and defendants by their attorneys, that written entry of appearance of one defendant has been filed and personal service made on another, that such two defendants were three times called and solemnly defaulted “whereupon the court hears the evidence offered, and being fully advised in the premises” finds the amount due to be a certain sum, whereupon judgment is entered in favor of plaintiff against such two defendants for said sum and costs and execution awarded “and sci. fa. awarded” as to the remaining defendant “to issue returnable on the first day of the next term of this court, continued as to sci. fa,” held to be sufficient in form.

      Error to the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    E. B. Green and Theodore G. Risley, for plaintiff in error George S. Clarke.
    S. J. Gee and Frank Fornoff, for defendant in error.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This was an action of assumpsit in the Circuit Court of Wabash county to the November term, A. D. 1915, in which defendant in error, D. E. Keen, was plaintiff, and plaintiff in error, George S. Clarke, Melchoir Leipold and Elbert Epler, were defendants.

The declaration was as follows: “D. E. Keen, by Frank Farnoff his attorney, complains of Melchoir Leipold, George S. Clarke and Elbert Epler, of a plea of trespass on the case on promises.

“For that whereas the said Melchoir Leipold, on, to wit, the twenty-eighth day of February, in the year of our Lord one thousand nine hundred thirteen, in the county aforesaid, made his promissory note and delivered the same to the said George S. Clarke, and then and there promised to pay the said George S. Clarke, or order, on the twenty-eighth day of February, in the year of nineteen hundred fifteen, the sum of two thousand five hundred ($2,500.00) dollars, for value received, with interest thereon at the rate of six (6) per cent, per annum.
“And thereupon the said defendant,. George S. Clarke, on the day first aforesaid, indorsed and delivered the said note to the plaintiff.
“And thereafter, on, to wit, the seventeenth day of May, in the year of nineteen hundred thirteen, by virtue of a contract by and between the defendant Mel-choir Leipold and the defendant Elbert Epler, and in consideration of certain property therein mentioned, paid by the said Melchoir Leipold, the said Elbert Epler assumed and agreed to pay the said note.
“By means whereof the said defendants then and there, to wit, at the time last aforesaid, became liable to pay to the plaintiff the amount of the said note, according to the tenor and effect thereof.
“And, being so liable, the defendants, in consideration thereof, then and there promised the plaintiff to pay him the said amount, according to the tenor and effect of the said note.
“Yet, although the day of payment in the said note specified has elapsed, the defendants have not paid to the plaintiff the amount of said note, or any part thereof, but refuse so to do.
“Nor have the defendants, though requested, paid to the plaintiff the several other sums of money above specified, or either of them, or any part thereof, but refuse to pay him the same.
“To the damage of the plaintiff of three thousand five hundred dollars, and therefore he brings his suit, etc.”

A copy of a warranty deed conveying certain lands from Melchoir Leipold to Elbert Epler was filed with the declaration. The following copy of a promissory note was also filed with the declaration: “This note is secured by real estate mortgage on 511 acres of land in Cotton Grove Tp., Saline Co., Ill. No. - Mt. Carmel, Ill., Feby. 28th, 1913. $2500.00.

“Twenty-four months after date, for value received, we or either of us, promise to pay to the order of Geo. S. Clarke, the sum of twenty-five hundred 00/100 Dollars. Payable at American National Bank, Mt. Carmel, Ill.
‘1 Above mentioned sum and six per cent, from date, and ten per cent, of the face of this note as attorney fee, and to release all errors, waive all proceedings in the nature of a stay of execution, appeal or petition in error.
“The endorsers, signers and guarantors severally waive presentment for payment, protest, or notice of protest, and notice of non-payment, of this note, and dilig’ence in bringing suit against any party to this note, and sureties agree that time of payment may be extended without notice or other consent.
“Interest payable annually at 6% from date.
“Privilege is hereby reserved to pay on this note $100 or any multiple thereof, prior to its maturity on any interest maturing date. In case such payments are made the interest on the amounts paid shall cease.
..................[Seal]
Melchoir Leipold [Seal]
........._.........[Seal]”
Indorsed on the back of the note is the following: “Geo. S. Clarke, March, 1914, Recd. $100.00 int. on within note, D. E. Keen.”

There was personal sendee on George S. Clarke, and the written appearance of Melchoir Leipold was entered, but no service was had on Elbert Epler. At said term the following judgment was rendered: “And now on this day comes the plaintiff, by Fornoff & Willhite, and the defendants, by Allen Walker and H. P. French, their attorneys, and now, on this day, written entry of appearance of the defendant, Leipold, filed, personal service is shown on the defendant, Geo. S. Clarke; defendants, Leipold and Clarke are three times solemnly called and defaulted; whereupon the court hears the evidence offered, and being fully advised in the premises, finds amount due for principal and interest to be $2,758.75, whereupon the court enters judgment on finding in favor of D. E. Keen, plaintiff, and against said defendants, Melchoir Leipold and George S. Clarke, for said sum of $2,758.75 and costs, and execution awarded and sci. fa. awarded as to defendant, Elbert Epler, to issue returnable on first day of the next term of this court, continued as to sci. fa.”

George S. Clarke, one of the defendants below, brings the case into this court by writ of error. Two questions are raised by the assignment of error and argument in this case, viz.: Was the declaration sufficient to support the judgment and was the judgment in proper form? The contention of plaintiff in error is true, as a rule of law, that a default admits only that the facts alleged in the declaration are true, and not that they constitute a cause of action, and if in law they do not constitute a cause of action, no judgment should be rendered on the declaration by default. It is also contended by plaintiff in error that in order to charge the indorser of a promissory note it is necessary to prove demand of the maker and notice of nonpayment and dishonor, and that the declaration in this case is insufficient to support the judgment against plaintiff in error, who was an indorser, for the reason that these facts were not alleged. The declaration alleged the indorsement by the defendant George S. Clarke, who was the payee thereof to the plaintiff, D. E. Keen, that the defendants to the suit, in consideration of their alleged liability to pay the note, promised the plaintiff to pay him the amount thereof according to the tenor and effect of said note; that although requested to do so, the said defendants have not paid the sums of money specified or either of them or any part thereof, but refuse to pay the same to the plaintiff. Plaintiff in error was defaulted after personal service, and it would seem that under such conditions and in the absence of a demurrer the allegations of the declaration were sufficient to show demand of the defendants for payment of the note and notice to them all of the nonpayment thereof.

The judgment shows jurisdiction of the parties, evidence heard, finding in favor of defendant in error and judgment against plaintiff in error and another for amount found due. No evidence was preserved by the record, so it must be presumed the evidence was sufficient to support the finding and judgment. Miller v. Glass, 118 Ill. 443. In the early case of Wells v. Hogan, 1 Ill. 337, Justice Lockwood laid down the rule that: “No particular form is required in the proceedings of a court to render their order a judgment. It is sufficient if it be final and the party may be injured.” That rule has since been followed and often reiterated by the Supreme and Appellate Courts of this State. In the case of Coats v. Barrett, 49 Ill. App. 275, a judgment in the following form was held sufficient: “The court being fully advised in the matter finds the issues for the plaintiff and proceeds to render judgment in favor of the said plaintiff and against the said defendant for the sum of two hundred and forty seven dollars and seventy cents, and the costs of this suit, and execution is awarded for the same.” While the judgment in this case may not be in the most approved form it clearly shows the plaintiff who recovers, the defendants against whom recovery is had, the amount of money recovered and awards execution. This is sufficient to show a valid judgment and under the circumstances disclosed by the record, it should be and accordingly is affirmed.

Judgment affirmed.


text:
    The Farmers National Bank of Allendale, Defendant in Error, v. Melchoir Leipold et al., Plaintiffs in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Statement of the Case.
    Action of assumpsit by The Farmers National Bank of Allendale, plaintiff,- against Melchoir Leipold and George S. Clarke, defendants, on a promissory note. From a judgment for plaintiff, defendants bring error.
    The decision in this case is governed by the decision in Keen v. Leipold, ante, p. 163.
    E. B. Green, Theodore G. Risley and Howard P. French, for plaintiff in error George S. Clarke.
    P. J. Kolb and M. J. White, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    H. D. Riegel, Appellee, v. Commissioners of the Bankston Special Drainage District in the County of Saline and State of Illinois, Appellants.
    1. Drainage, § 94

       — when petition to compel commissioners to construct and replace a bridge over a drainage ditch is sufficient. A petition to compel drain commissioners to construct and replace a bridge over a drainage ditch on petitioner’s premises which alleges that respondent commissioners constructed a drain across the lands of petitioner and that such premises were then and there and still are an “inclosed field or parcel of land,” is not demurrable because in the • alternative or disjunctive and because it does not state, whether the parcel of land is inclosed or not, since the language is that used in the statute relating to the construction of such bridges (J. & A. If 4552).
    2. Breading, § 35* — when sufficient. As a general rule a pleading is sufficiently definite if in the words of the statute it relies upon.
    3. Drainage, § 94* — when petition to compel commissioners to construct and replace bridge over drainage ditch is sufficient. A petition of mandamus by a landowner to compel drain commissioners to construct and replace a bridge over a drainage ditch constructed on petitioner’s premises which sets forth the facts and in the prayer for relief asks for a writ of mandamus compelling the commissioners to build and construct a suitable “bridge or proper passageway” of sufficient size, strength and capacity to afford a reasonably safe passage across such ditch where it crosses the premises of the petitioner, is sufficient.
    4. Drainage, § 94* — when judgment on petition to compel commissioners to construct and replace bridge over drain proper. Although two bridges had been previously washed away at a point along the drain through petitioner’s land, a judgment, on petition for mandamus to compel drain commissioners to construct and replace a bridge over a drainage ditch on petitioner’s premises, was not erroneous because providing for the construction of a suitable bridge or proper passageway and not for the rebuilding and replacing of the last bridge, where it is left to the commissioners to determine the kind of bridge or passageway.
    5. Drainage, § 94* — when petition to compel commissioners to construct and replace bridge over drain is sufficient. A petition by a property owner to compel drain commissioners to construct and replace a bridge over a drain on the petitioner’s land is not insufficient because alleging no facts as to what petitioner is using the premises for or whether they are cleared land or wild land, inclosed or uninclosed, or whether they are being used for agricultural purposes or otherwise, where it is alleged that the commissioners constructed a drain across the lands of petitioner and that said premises were then and there and still are “an inclosed field or parcel of land,” the words of the statute (J. & A. If 4552).
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    A. G. Abney and W. F. Scott, for appellants.
    S. D. Wise and A. E. Somers, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

The appellee, H. D. Riegel, filed a petition to the April term, 1917, of the Saline county Circuit Court to compel appellants, the Commissioners of the Bankston Special Drainage District in said county, to construct and replace a bridge across their ditch on the land of appellee, as provided by section 74 of the Farm Dkainage Act (J. & A. ft 4552), under which said district is organized and which is as follows: ‘1 There shall be constructed at least one bridge or proper passageway over each open drain where the same crosses any inclosed field or parcel of land, and the cost of construction thereof shall be charged as part of the cost of construction of such drain, and such bridge or passageway shall be maintained by the commissioners from the district funds: Provided, the commissioners may contract with owners of land crossed by such drain to maintain such bridges or crossing. ’ ’

Appellants filed their special and general demurrer to the petition which was overruled by the court. Appellants elected to abide their demurrer and the court entered a judgment of nihil dicit, from which the commissioners appealed. The petition, after alleging the organization of the drainage district and the ownership by appellee of certain land therein described, alleges that the commissioners constructed a drain across these lands of appellee and “that said premises were then and there and still are an inclosed field or parcel of land.” It is insisted by appellants that the quoted averment is bad and subject to demurrer because it is in the alternative or disjunctive and because it does not state whether the parcel of land is inclosed or not. This position seems to us to be without valid foundation. As we interpret the statute, the word “inclosed” is intended to .qualify or to be read with the words “parcel of land” as well as the word “field,” and the words “parcel of land” are intended as another way of expressing the word “field.” The phrase complained of is in the words of the statute, and it is a general rule that a pleading is sufficiently definite if in the words of the statute it relies upon. County of Rock Island v. Union Printing Co., 71 Ill. App. 636.

The petition also alleges that it became the duty of the commissioners to construct at least one bridge or proper passageway over the ditch upon the premises of appellee and to maintain the same from the funds of the district, and the prayer for relief asked for a writ of mandamus commanding the commissioners to build and construct a suitable bridge or proper passageway of sufficient size, strength and capacity to afford a reasonably safe passage across said ditch where the same crossed the premises of the petitioner. It is urged that this allegation and prayer are both insufficient “because they are in the alternative as to whether it should be a bridge or a proper passageway. ’ ’ Under the wording of the statute it does not appear to be the province of the petitioner or landowner to determine whether he shall have a bridge or some other proper passageway, but that it is for the commissioners to determine and to construct whatever in their opinion is a proper passageway whether it he a bridge or other structure. The statute seems to require the petitioner to set forth the facts and asks the court to compel the commissioners to construct a bridge or proper passageway, and that is what this petition does. The case of Stroud v. Commissioners of Union Drainage District No. 1, 157 Ill. App. 427, arose upon a petition very similar to the one at bar and under the same section of the statute. The trial court in that case awarded a writ “commanding the commissioners forthwith to build a suitable bridge or passageway over said ditch of sufficient size, strength and capacity to afford the petitioners a reasonably safe passage across said ditch.” The Appellate Court for the Second District, in an opinion affirming that judgment, said: “This order left the precise location of the bridge and its size and its cost to the sound judgment of the commissioners, only requiring that it connect the described lands and be of sufficient capacity to furnish the petitioners with a reasonably safe passage over the ditch, and we are of the opinion that it was proper to leave those matters to the official judgment and discretion of the commissioners.” If it is proper for the judgment in a case of this nature to leave it to the discretion of the commissioners whether they build a suitable bridge or passageway and what the size, strength and capacity should be, a petition which asks for a “bridge or proper passageway” is also proper and not subject to demurrer.

The petition alleges that the commissioners had formerly built two bridges across this ditch which had been washed away, the last one in the spring of 1916. It is contended that the judgment should have been to rebuild and replace this last bridge and not to construct a suitable bridge or proper passageway. The contention is more technical than substantial. The kind of bridge or passageway to be constructed was left to the decision of the commissioners, and it was for them to determine whether the rebuilding or replacing of the old bridge would afford the petitioner a reasonably safe passage across said ditch, and should they so decide this would no doubt be a compliance with the judgment.

It is also contended that the petition alleges no facts as to what the petitioner is using the premises for, or whether they are cleared land or wild land, inclosed or uninclosed, or whether they are being used for agricultural purposes or otherwise. The only requirement of the statute in this respect is that “there shall be constructed at least one bridge or proper passageway over each open drain where the same crosses any inclosed field or parcel of land.” The petition contained these words of the statute and was therefore sufficient in that respect. Other objections urged against the petition by appellants are of minor importance and appear to be without merit. The trial court properly overruled the demurrer to the petition and its judgment will be affirmed.

Affirmed.


text:
    Louis H. Gieseman, Appellee, v. Illinois Terminal Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Lotus Bep.kreuter, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Statement of the Case.
    Action by Louis H. Grieseman, plaintiff, against Illinois Terminal Eailroad Company, defendant, to recover damages for injury to plaintiff’s crops by overflow due to the construction of a railroad embankment with insufficient openings over a river valley and river, after changing the channel of the river. From a judgment for plaintiff for $975, defendant appeals.
    This case is governed by the decisions in the cases of Drda, Dettmer and Nivins against the same defendant, 210 Ill. App. 640, 653, and ante, p. 22, respectively.
    H. S. Baker, A. M. Fitzgerald and Warnock, Williamson & Burroughs, for appellant.
    Burton & Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Elizabeth Poland and John H. Sperry, Appellees, v. Supreme Tribe of Ben Hur, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Insurance — when burden of proof is on defendant to show death of insured as result of intemperate use of intoxicating liquor. In an action on a mutual benefit insurance certificate the burden of proof is on defendant to show that deceased came to his death as the result of the intemperate use of intoxicating liquor, so as to render available as a defense a condition of the certificate against the use of such liquor.
    2. Appeal and error, § 1411

       — when finding of jury not disregarded. A jury's finding, based on conflicting evidence, that insured did not come to his death as the result of the alleged, intemperate use of intoxicating liquor will not be disregarded on appeal where there is evidence fairly tending to support such finding and the verdict.

      Appeal from the Circuit Court of Fayette county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Statement of the Case.
    Action by Elizabeth Poland and John H. Sperry, plaintiffs, against Supreme Tribe of Ben Hur, defendant, to recover on a mutual life insurance certificate for $1,000 issued by defendant to Theodore J. Sperry, in which plaintiffs were named as berfeficiaries. From a judgment for plaintiffs for $1,000, defendant appeals.
    Arthur Roe and C. E. Pope, for appellant.
    Matheny & Welker, for appellees.

      See Illinois Notes Digest, Veis. 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 Higbee

delivered the opinion of the court.

3. In suban ce, § 895a* — when evidence as to habits of insured is admissible. In an action on a mutual death benefit certificate, in which the defense is a violation of a provision of the certificate that no benefit shall be payable if death is due to the intemperate use of intoxicating liquor, evidence that deceased was formerly not addicted to the intemperate use of intoxicating liquor is admissible.

4. Insurance — when burden on defendant to show that death of insured was due to intemperate use of liquor not shifted. The burden incumbent on defendant, in an action on a mutual death benefit certificate, to show that deceased met his death as the result of the intemperate use of intoxicating liquors is not shifted by the fact that the proofs of death contain the coroner’s verdict that deceased came to his death from “exposure by being under the influence of alcohol.”

5. Appeal and ebbob, § 1241* — when party may not complain of error in instruction. A party may not complain of error in an instruction where the same principle is embodied in an instruction given at his own request.

6. Appeal and ebbob, § 1561* — when refusal of instructions is harmless error. It is harmless error to refuse requested instructions covered by the main charge.

McBride, J., took no part in the consideration and decision of this case in this court.


text:
    Joseph J. Morris, Defendant in Error, v. Saline County Coal Company, Plaintiff in Error.
    1. Mines and minerals, § 22

      - — when second lease not deemed continuation of first lease. Where the owner of land gives a lease for coal mining purposes under which the lessee is not to he liable for surface subsidence, and the lease is assigned to a mining company, and, after conveyance of the surface, reserving mining rights, a second similar lease is given to the mining company and the mine is operated under the second lease and the first lease canceled, it cannot be deemed that the making of the second lease was a continuance of the first lease.
    2. Notice, § 14* — what is effect of possession by contract purchaser. Possession by a contract purchaser of the surface of land, the mining rights having been reserved, is notice to the world of whatever right he has in the premises.
    3. Mines and minerals, § 58* — what are rights of purchaser of land with notice of right of mining coal as to surface support. One who purchases land with the knowledge that the right to mine and remove coal has been reserved has the right to assume that the coal will be mined and removed in a lawful manner and that sufficient coal or supports will he left to support the surface.
    4. Mines and minerals, § 9* — acquirement of title to coal under land. The coal underlying land may he acquired by title absolutely in fee in one person while the right to the surface is in another.
    5. Mines and minerals, § 58* — duty of owner of mining rights to sustain surface of land with sufficient supports. The only distinction as to the respective rights of the owner of the surface of land and the owner of mining rights rests on the principle that the servient estate owes the servitude of affording sufficient supports to sustain the surface.
    6. Mines and minerals, § 60* — when burden is on mine operator to show subsidence of surface is due to buildings. The act of removal of superincumbent soil by a mine operator is prima facie the cause of its subsequent subsidence, and if the subsiding is, in fact, due to the weight of buildings erected thereon, then the burden is on the mine operator to so show, in an action by the owner of the surface against a lessee of mineral rights for damages for subsidence of the surface.
    7. Mines and minerals, § 60* — when damage done by subsidence up to time of commencement of suit may be shown by owner of

      surface. In an action by the owner of the surface of land against the lessee of mining rights to recover damages for injury due to subsidence of the surface, plaintiff may show the damage done to his property from the time of the first subsidence up to the time of the commencement of suit, since successive suits for actual damages may be brought from time to time as the damages are sustained, and in each suit the party may recover the damages he has sustained prior to its commencement, not barred by a previous recovery.
    Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 16, 1918.
    Whitley & Combe, for plaintiff in error; Warren Nichols, of counsel.
    W. C. Kane and A. E. Somers, for defendant in error.

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

   Mr. Justice McBride

delivered the opinion of the court.

The defendant in error, hereinafter called defendant, recovered a judgment against the plaintiff in error, hereinafter called plaintiff, in the Circuit Court of Saline county at the September term, 1916, for the amount of $5,950, to reverse which the plaintiff prosecutes this writ of error.

It appears from the record in this case that on and prior to December 14, 1906, John J. Parish was the owner of the southwest quarter of the southwest quarter of Section 16, and a portion of the southeast quarter of the southeast quarter of Section 17, all in Township 9 south, Range 6 east of the third principal meridian, in Saline county, Illinois, which was after-wards platted and subdivided into lots and blocks in the manner set forth in plaintiff’s declaration. On December 14, 1906, John J. Parish gave a lease or contract for the right to mine and remove the coal underlying said lands to Samuel W. McCune, which lease provided for the payment of a-stipulated amount per ton for the coal removed and contained a clause which is stipulated therein as rent for the privilege granted, and also provided that the lessee should not be liable for surface subsidence, in words as follows: “Without any liability for surface subsidence by mining out the coal,- or for not leaving pillars or artificial supports under the land. ’ ’ This lease was never recorded and the coal lands were never taken possession of by the lessee under said lease. In May, 1907, Samuel W. McCune, the lessee above named, assigned the foregoing lease to the plaintiff. By deed dated July 9, 1907, acknowledged July 15, 1907, and recorded July 27, 1907, Parish and his wife conveyed to E. E. Denison the surface of the tract of land above described, reserving the right to mine and remove the coal thereunder. On July 27, 1907, E. E. Denison conveyed the above-described lands back to Parish as trustee, “to be held in trust for the use of E. E. Denison, John Shaw, E. S. Marsh, F. B. Miller, W. E. Smith and John J. Parish, giving unto said trustee full power to survey, subdivide, plat, sell and convey by lots and blocks all the interest, right and title of the above-named beneficiaries in the land described herein.” This deed also reserves the right to mine and remove the coal under said lands, and both of these deeds were duly recorded in the recorder’s office on July 27, 1907. At the same time there was recorded in the recorder’s office a plat of an addition to West Harrisburg, and being a plat of lots, blocks and streets of the lands above described, together with a certificate of the surveyor and a map thereof. On the same day, July 27, 1907, John J. Parish as such trustee entered into an agreement with the defendant Joseph J. Morris to sell and convey to him Lots 1, 2,13 and 14 in Block 9; Lots 9, 10, 11 and 12 in Block 10; Lots 4 and 5 in Block 15; Lots 1 and 2 in Block 16; all in West Harrisburg Addition, and being a part of the lands above described and platted. Morris at that time paid a portion of the purchase price and on that day took possession of the above-described lots and, as he says, immediately began the erection of houses thereon, and by December 1,1907, had erected and completed five dwelling houses upon said property. The contract executed to Morris was not recorded, but after the full payment for said lots and on March 29, 1913, John J. Parish, as such trustee, for a consideration of $4,200 conveyed said lots to J. J. Morris, which deed was duly recorded on April 22, 1913. The contract and deed to Morris reserved the coal -underlying said, lands with the right to mine and remove the coal therefrom.

On August 30, 1907, John J. Parish and Anna, his wife, made and executed to the plaintiff, Saline County Coal Company, a lease or contract giving to said company the right to mine and remove the coal underlying said lands at a stipulated price of three cents per ton, and it was provided in said lease that the lessee should have the “right and privilege to excavate, mine, take put and remove all of the coal from or on said premises without any liability for surface subsidence occasioned thereby.” This lease also provided the right to use certain parts of the surface of the land for the purpose of erecting shafts or other structures to be used in and about the hoisting of coal. It is also provided in said lease: “It is hereby further understood and agreed that upon the execution of this lease that a certain lease, executed under date of December 14, 1906, between the first parties hereto and Samuel W. McCune, subsequently assigned by said Samuel W. McCune to the Saline County Coal Company, shall become null and void.” This lease was recorded on the 27th of February, 1908. It further appears that the Saline County Coal Company erected a shaft and prior to October 15,1915, mined and removed the coal underlying the lots above described. That in removing the coal the rooms were turned upon a 45-foot center and between 27 and 30 feet of the coal was removed. Witnesses testified that two-thirds of the coal had been removed therefrom and that the pillars were crushed and the roof had come down and the passageway closed, and that the pillars in some places were 50 feet apart and the width of the pillars varied from nothing to 30 or 40 feet, and that the removal of the coal from beneath the lots in question in the manner above specified caused the subsidence of the surface of said lots. The surface of the lots above described had their principal subsidence on October 15 or 16, 1915, and thereafter settled more. There were five four-roomed houses on the lots, five outhouses, coalhouses and closets, four drilled wells, four cisterns and three barns, summer kitchens and concrete and other walks. The houses were frame buildings with brick foundations and had been built about 7 years.

The declaration contained two counts, the first charging a negligent removal of the coal and the careless and wrongful neglect and failure to leave sufficient subjacent props thereunder. The second count charged the removal of the coal and the failure to leave sufficient props to permanently maintain and support the surface of said lots in their natural position.

The first contention of plaintiff is that as the lease to McCune dated December 14, 1906, was assigned to plaintiff and as a new lease was made by Parish to plaintiff purporting to have been executed on August 30, 1907, and recorded February 27, 1908, and that although the first lease was by the lessee McOune assigned to plaintiff and was by the plaintiff and Parish by their written agreement declared canceled and null and void by a second lease entered into on August 30, 1907, by and between the plaintiff and Parish, that this in effect continued the first lease, and that the first lease was effectual as to parties purchasing the surface of the land after the making of the first lease and prior to the making of the second lease. We do not believe that the making of the second lease was a continuance of the first in view of the evidence that the mine was operated under the second lease and not under the first, and that the first lease had been canceled. Even if it were to be so considered, it will be observed that after the making of the lease to McGune, which was not of record, and no possession taken under it and nothing done thereunder towards the removal of coal, Parish and his wife conveyed the land in question to E. E. Denison, reserving the right to mine and remove the coal, and that thereafter E. E. Denison conveyed the land to John J. Parish as trustee for the use of Denison and others as above named, which deed also reserved the right to mine and remove the coal. The terms of the trust were that the trustee was empowered to survey, subdivide, plat, sell and convey by lots and blocks all the interest of the said beneficiaries, therein reserving the coal. On the same day, July 27, 1907, John J. Parish as such trustee entered into a contract of sale with Morris, the defendant, for the sale of the lots in question. Payments were then made upon the lots and Morris entered into possession of the lots on that day, made improvements upon these lots and completed five houses thereon by December 1,1907. The lease to plaintiff, called herein the second lease, was not recorded until February 27, 1908, and so far as the record discloses the defendant Morris had no notice that a lease of any kind had been made of the coal right at the time he purchased the lots, and all that the record disclosed to him was that the coal under his lots had been reserved with the right to mine and remove the same. Up to the time of recording the second lease and at the time defendant went into possession of the lots there was nothing of record showing that the plaintiff or any one else had acquired the right to remove the coal under the surface of said premises without any liability for surface subsidence occasioned thereby. The claim of plaintiff is that it had the right to mine and remove this coal without any liability for surface subsidence. It is true that the defendant was in possession under a contract of purchase and some payments had been made and improvements begun, and, as we view it, he was entitled to the same protection under a contract as under a deed, if he was in possession. It could make no difference to the plaintiff whether the possession was under a deed or contract of purchase, or whether all of the purchase price had been paid or not, that was a matter between the vendor and the defendant in which plaintiff had no interest. Possession by defendant was notice to the world of whatever right he had in the premises. Redden v. Miller, 95 Ill. 336; Crawford v. Chicago, B. & Q. R. Co., 112 Ill. 314.

What were the rights of the defendant? He had purchased the lots with notice that the right to mine and remove the coal had been reserved. He had the right to assume that the coal would be mined and removed in a lawful manner and that sufficient coal or supports would be left to support the surface. ‘ ‘ Where the surface of land belongs to one and the minerals to another, no evidence of title appearing to regulate or qualify their rights of enjoyment, the owner of the minerals cannot remove them without leaving support sufficient to maintain the surface in its natural state.” Wilms v. Jess, 94 Ill. 464, and authorities there cited; Catlin Coal Co. v. Lloyd, 109 Ill. App. 122.

The coal underlying the land may be acquired by title absolutely in fee in one person whilst the right to the surface is in another. They may be held by separate and distinct titles in severalty. “The only distinction as to the respective rights rests on the principle that the servient estate owes the servitude of affording sufficient supports to sustain the surface.” Ames v. Ames, 160 Ill. 599. Whatever effect may be given to the clause in the lease, wherein it is provided that the plaintiff may take out and remove all the coal from said premises, “without any liability for surface subsidence occasioned thereby,” as to John J. Parish, the lessor, it certainly does not deprive the defendant of his right to support of the surface in the manner provided by law. It follows from what we have said that the leases above referred to were no defense as to a suit instituted by the defendant to recover damages for failure to support the surface of his lots, and the court did not err in refusing to admit them in evidence.

It is next contended that there is not a scintilla of evidence tending to prove that the subsidence complained of would have taken place had the premises in question been in their natural condition.

The evidence shows that about two-thirds of the coal had been removed by the plaintiff; that in many places the pillars were almost entirely gone and in others that they were crushed and that the roof had come down both in the rooms and in the entries; that the pillars or supports were very irregular and that the surface subsided because of the removal of the coal. The plaintiff claims that it was essential to the making of a prima facie case for the defendant that there be affirmative evidence to prove that by reason of the manner by which the coal was mined the land would have subsided had it been in its natural state, without any buildings or added weight upon it. There is no evidence in this case to show that the presence of the buildings in any manner hastened the falling of the surface of the ground. It simply appears that there were buildings upon the lots and that the coal was removed and the subsidence took place. We do not understand that it was the duty of the defendant to prove that the presence of the buildings did not contribute to the subsidence. The Supreme Court of Illinois has said approvingly, in quoting from Wood on Nuisances: “ ‘The mere presence of a building or other structure upon the surface does not prevent a recovery for injuries to the surface, unless it is shown that the subsidence would not have occurred except for the presence of the buildings. Where the injury would have resulted from the act if no building’s existed upon the surface, the act creating the subsidence is wrongful and renders the owners of the mines liable for all damages that result therefrom, as well to the buildings as to the land itself.’ * * * The act of removing all support from the superincumbent soil is prima facie the cause of its subsequently subsiding, but if the subsiding is, in fact, caused by the weight of buildings erected subsequent to the execution of the lease of the mine, this is in the nature of contributive negligence, and may be proved in defense. The authorities do not require that plaintiff’s proof shall exclude that hypothesis in the first instance.” Wilms v. Jess, supra. The same doctrine was announced by this court in the case of Donk Bros. Coal & Coke Co. v. Novero, 135 Ill. App. 633. If the erection of the buildings upon the lots in fact contributed materially or otherwise to the decadence of the surface then the duty was cast upon the plaintiff to so show, and there is no evidence in this record to that effect.

It is next contended that the court erred in the giving of defendant’s fifth, seventh and eighth instructions and in the admission of evidence of the value of the lots in question at the time of suit and in refusing plaintiffs ninth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth instructions, which announced an opposite principle to those announced in defendant’s given instructions. We think it was perfectly proper far the defendant to show the damages done to his property from the time of the first subsidence up to the time of the commencement of the suit. Successive suits for actual damages may b.e brought from time to time as the damages are sustained and in each suit the party may recover such damages as he has sustained prior to its commencement, not barred by a previous recovery. McConnel v. Kibbe, 33 Ill. 175. And the same doctrine is announced in the case of Catlin Coal Co. v. Lloyd, 109 Ill. App. 122.

It is insisted by plaintiff that the defendant should have taken means to have removed this property and reduced the amount of damages. We do not find any evidence in this record, and none has been pointed out, that anything could have been done by defendant to have prevented the continuation of the damages.

We are not able to say that the court erred in giving the instructions criticized upon behalf of the defendant and in refusing those offered and referred to on behalf of plaintiff.

It is next insisted that the court erred in giving defendant’s first instruction. Counsel say: “This was a peremptory instruction to find for the plaintiff and to take from the jury all questions except the question of damages.” It is true that this instruction did direct the jury to find a verdict for the plaintiff, and in view of the record in this case we do not see how the court could have done otherwise. The only defense that was offered by the plaintiff was that it had leases giving it the right to mine and remove the coal without being liable for surface subsidence but, as we have above decided, while the.leases may have been good as against the lessor (whether they were or not we are not determining) they were certainly not good against a purchaser who was in possession of the lots at the time that the lease was entered into and at and before the time the leases were placed upon record.

We are unable to say that any reversible error was committed by the court in the trial of this case, or that the verdict is unjust or manifestly against the weight of the evidence, and the judgment of the lower court is affirmed.

I'Judgment affirmed.


text:
    The People of the State of Illinois for the use of the State Board of Health, Appellant, v. J. H. Black, Appellee.
    1. Physicians and surgeons, § 5

       — when person engaged in practice of medicine so as to require license to practice. A chiropractic who treats various diseases by manipulation of the vertebre which contain the nerve centers of the particular portion of the body that is diseased and does not use any drugs is engaged in the practice of medicine so as to necessitate the proeurance of a license, under J. & A. f 7388, providing that any “person shall be regarded as practicing medicine * * * who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to, or deformity of, another.”
    2. Physicians and surgeons, § 8* — when instruction in action to recover statutory penalty against chiropractic practicing without license is erroneous. In an action against one practicing as a chiropractic without a license to recover the statutory penalty, an instruction that if the jury believed “by a preponderance of the evidence that the defendant did not practice medicine, but that his acts were in fact, an adjustment of the human body for the purpose of adjusting the spinal column or other organs for the nerves for the purpose of causing the flow of blood to flow freely, and by so doing that, the blood would flow freely, and thereby the cause removed, then the defendant would not be guilty of practicing medicine in violation of said statute, unless he held himself out or advertised himself as a doctor or physician,” is erroneous.
    Appeal from the Circuit Court of Gallatin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 16, 1918.
    Edward J. Brundage, Marsh Wiseheart and Bartley & Bartley, for appellant.
    Roedel & Roedel, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

This is an action of debt instituted before a police magistrate by appellant on March 6,1917, and against the appellee to recover a statutory penalty for practicing medicine in the State of Illinois without a license so to do. The case was appealed to the Circuit Court and there tried, which resulted in a verdict and judgment for the appellee, to reverse which judgment this appeal is prosecuted.

It appears from the record in this case that the appellee is a graduate of the Davenport School of Chiropractics and was located in Gallatin county, Illinois, and for about 18 months prior to the beginning of the suit was located at Junction City in said county. He opened up an office and placed a sign thereon with the words, “Doctor Black, Chiropractic,” and carried on the practice of his profession in that office, at times visiting the homes of his patients and there treating them. His theory of ailments was, as he stated it: “To take the pressure off of certain nerves and blood vessels, to relieve this pressure and that evens up the circulation, and so the disease congestion will disappear. This pressure will cause too much blood to flow or too little in certain parts of the body, and that will cause a congestion, will cause a pressure and this pressure on the fine network of nerves will cause a pain. Pressure on a nerve will cause a pain and as soon as you relieve the nerves, these nerves, as they come out through the vertebras, they are supposed to have, when there is no pressure on one, something like a hundred per cent, of nerve energy, electricity or vitality, or anything you want to call it, and when there is a pressure made on this nerve, there can’t be a full hundred per cent, of the nerve energy to this region, and that will throw the blood from one way or the other.” He further stated that he finds the seat of the pressure by the vertebrae and then by manipulation of the vertebrae relieves this pressure upon the nerves and that nature then effects the cure. His mode of treatment principally was to lay the patient down upon his face and then by means of the hands manipulated the vertebra which contained the nerve center of the particular portion of the body that was diseased. He and the witnesses all say that he did not use any drugs but relied solely upon this manipulation to effect a cure. He treated rheumatism, diseases of the stomach, heart disease, dropsy, liver complaint, paralysis, granulated sore eyes, appendicitis and other diseases, and he and the witnesses stated that his treatment consisted of the adjustment of some misplaced vertebra to relieve the pressure.

The appellant claims that the verdict of the jury was contrary to the law and the evidence and that the court erred in the giving of appellee’s instructions.

By an act of the legislature which became effective on July 1, 1899 (J. & A. ft 7378), it was provided that no person should practice medicine, or any of the branches thereof, or midwifery in this State without first applying for and obtaining a license from the State Board of Health to do so, and then prescribes the manner in which the license may be obtained, and a penalty for the violation of this statute. Section 7 of the Act (J. & A. ft 7388) defines who are to be regarded as practicing medicine, and provides as follows: “Amy person shall be regarded as practicing medicine, within the meaning of this act, who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to, or deformity of, another.” This section then contains a proviso relieving certain persons, but such proviso has no application to the case on trial. It is undisputed that the appellee maintained an office or place of business with a sign thereon, “Doctor Black, Chiropractic,” in Junction City; that people came to his office at various times for treatment and were therein treated. That he also went to the homes of some of the individuals and there treated them. He treated Charles Ginger for rheumatism, Nora Thompson for nervous headaches, George Reardon for progressive paralysis, Jesse Cathlin for heart trouble, Oscar Tad-lock for a general breakdown and stomach trouble, Sam Wembro for kidney and bladder trouble, John Woods for toothache and other persons for different diseases; but all of the treatments were made by manipulation of the vertebrae or twisting of the neck with his hands or by pressure upon the spinal column, in some parts with his knees. This was termed by appellee and most of the witnesses in their testimony as being an adjustment of misplaced vertebrae. Different vertebrae were operated upon for the different diseases, the appellee being able, as he claimed, to determine which vertebrae to manipulate, or what part of the spine for the particular disease with which he was confronted. From the testimony of the several witnesses he was quite successful in his treatment and very reasonable in his charges and did in most cases receive compensation for the work performed.

The only question with which we are confronted is, “Do the acts as detailed by the several witnesses constitute a treating, or professing to treat or operating on the patient for any physical ailment?” It is not disputed that he claimed to be able to cure many of these diseases. While it is true he said he did not cure them but he relieved the pressure upon the nerves and nature effected the cure. All any physician could do would be to place a patient in condition for nature to perform its work and effect a cure. It undoubtedly, as the evidence of the doctor shows, requires skill to be able to determine what the disease is and what particular manipulation is required in order to effect the cure, which undoubtedly requires skill and learning along these particular lines, and the very object to be accomplished by this statute is to prevent persons who are not possessed of such skill, or who do not understand the human system and the mode of treating, from practicing upon afflicted people. Even though the appellee may have fully understood these matters, as he claimed, yet another person without the education might undertake to operate upon and treat different persons for their various afflictions without in fact knowing what the real trouble was, or whether by the particular act or treatment a cure will be effected or the person injured thereby. Very few of the people who have not given such matters a careful study would be able to determine before employing such as to whether they had the ability or not, and the object of this statute is to provide that no one shall be allowed to practice medicine or operate upon or profess to treat persons without they have the requisite knowledge so to do, and this is to be determined by a competent board appointed by the government of the State. “We all agree that the objects and purposes of this and similar statutes are to protect the sick and suffering, and the community at large, against the ignorant and unlearned who hold themselves out as being possessed of peculiar skill in the treatment of disease; from holding themselves out to the world as physicians and surgeons without having acquired any knowledge whatever of the human system or the diseases and ailments to which it is subject. Without some knowledge of the location and offices of the various nerves, muscles and joints, the manipulation of those parts and the flexing of the limbs cannot be intelligently, if, indeed, safely, practiced.” People v. Gordon, 194 Ill. 560. We think the questions here involved have been fully and definitely settled and determined by the case of People v. Gordon, supra, and are of the opinion that the appellee was engaged both in professing to treat and in treating the several witnesses who testified in this case without a license so to do, and that the verdict of the jury was manifestly against the law and the evidence in the case.

Appellant also complains of many instructions given by the court on behalf of the appellee, particularly the eighth instruction, which is as follows: “And you are further instructed that if you believe by a preponderance of the evidence that the defendant did not practice medicine, but that his acts were in fact, an adjustment of the human body for the purpose of adjusting the spinal column or other organs for the nerves for the purpose of causing the flow of blood to flow freely, and by so doing that the blood would flow freely, and thereby the cause removed, then the defendant would not be guilty of practicing medicine in violation of said statute, unless he held himself out or advertised himself as a doctor or physician. ’ ’ This instruction is in conflict with section 7, defining who are to be regarded as practicing- medicine, and in conflict with the construction of this section as placed upon it by the Supreme Court in the case of People v. Gordon, supra, and was both misleading and erroneous and should not have been given by the court.

Other objections have been urged by appellant in its brief, but we do not deem it necessary to give the objections any further consideration as sufficient has already been said to indicate clearly the position of this court upon the questions involved.

We are of the opinion that the verdict of the jury was manifestly against the evidence and the law and that the instruction referred to was erroneous and misleading and should not have been given, and the judgment of the lower court is reversed and the cause remanded.

jReversed and remanded.


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    Peerless Pattern Company, Appellant, v. Silverbloom Dry Goods Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 432

       — when objection as to lack of verification of plea is too late. The objection that a plea is not verified must be raised in the trial court and may not be raised for the first time on appeal.
    2. Pleading, § 453* — when verification of plea is waived. The verification of a plea is waived by going to trial upon the pleadings as framed.
    3. Pleading, § 451* — how benefit of failure to file sworn plea may be availed of. If a plaintiff desired to avail itself of any benefit of the failure to file a sworn plea it should have moved for judgment or taken proper steps to have stricken the plea from the files.
    Appeal from the County Court of Madison county; the Hon. Henry B. Eaton, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Statement of the Case.
    Action by Peerless Pattern Company, plaintiff, against Silverbloom Dry Goods Company, defendant, to recover a balance dne on a contract for the sale of patterns. From a judgment against it for costs, plaintiff appeals.
    Newell & Brown, for appellant; M. J. Brown, of counsel.
    R. Guy Kneedler, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Sales, § 147 — when duty lies on purchaser to return unused goods within reasonable time after expiration of contract. Where patterns are delivered under a contract providing that patterns shall be shipped from time to time at a certain price each and that such as are unsold shall be returned and credit given at the full purchase price, and the term of the contract is for 5 years, and from term to term thereafter, with the option of cancellation within 30 days before expiration of any term, and it is provided that if notice is given the seller the agreement will be continued for 4 months thereafter in order to give the seller an opportunity to transfer the account, it is the duty of the purchaser to return the unused goods within a reasonable time after the expiration of the contract.

5. Sales, § 147* — what does not constitute unreasonable delay in returning goods after expiration of contract. A delay of 18 months, after the expiration of a contract for the purchase of patterns, in returning unused patterns to be credited on the purchase price, is not unreasonable where the contract contemplated that if notice to terminate the contract was given by the purchaser the agreement should continue for a certain number of months to give the seller an opportunity to transfer the account and the seller disregarded letters from the purchaser after the expiration of the 4 months’ period as to what should be done with the patterns and gave no direction as to their shipment.


text:
    John W. Cassidy, Appellee, v. M. E. Kirkpatrick, Mayor of Granite City, Illinois, Appellant.
    1. Municipal corporations — what is object of statute as to causing publication of treasurer’s report. The object of Hurd’s Rev. St. ch. 24, sec. 97 (J. & A. If 1369), providing for the making of reports to a City Council of receipts and expenditures as from time to time required and also for an annual report, and that the clerk shall immediately cause the report to be published in a newspaper in the city, if there is one, and, if not, then by posting the same at a public place in the clerk’s office, is to secure a publication of such report that the inhabitants may know how the expenditures have been made, and the city clerk is only a means for causing such publication, and the fact that a contract for printing is made by a printing committee is immaterial.
    2. Mandamus, § 74

       — when mayor compelled to sign warrant for publication of treasurer’s report. Where the publication of a city treasurer’s report is authorized by law and the city has received the benefit thereof and the bill therefor has been approved by the City Council and a warrant issued by the clerk, as ordered by the council, and presented to the mayor, in the absence of fraud a prima facie duty upon the mayor’s part to sign the warrant is shown, and, upon his failure to sign, he will be compelled to perform his duty by mandamus.
    Appeal from the City Court of Granite City; the .Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1918.
    Harry Faulkner, for appellant.
    J. M. Bandy, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

The City Council of Granite City directed a warrant to be drawn in favor of the appellee for $300 awarded to him, as services for the publication of a treasurer’s report. The warrant was issued and signed by the city clerk but appellant as mayor refused to sign same, and this action of mandamus was brought against him to compel him to execute the warrant. The court below directed the execution of the warrant and this appeal is prosecuted to reverse that order.

The petition as amended sets forth that the appellee was the owner and publisher of a newspaper in the City of Granite City. It alleges that the city is a municipal corporation and that M. E. Kirkpatrick is the acting mayor of said city. It sets forth the number and names of aldermen, the name of the city treasurer, whose time expired April 30, 1917, and also the name of the city clerk. It alleges that the city treasurer, as required by law, made out and filed with the city clerk his annual report as such treasurer of the city for the fiscal year ending April 30,1917. The petition further alleges that the City of Granite City made its annual appropriation for the fiscal year ending April, 1918, and in said appropriation $1,000 was set apart and appropriated for printing purposes.

The petition further states that it is the duty of the city to examine said annual report of the treasurer and, if correct, to approve said report and to have the same published in some newspaper of the city, if there be one. It further alleges that the City Council approved said report and ordered a printing committee to have said report published in the newspaper, and that the printing committee authorized the appellee to print the report, and that the report was printed by him and that his charge for the work was $300. That the same was published at the lowest figure possible to obtain, and the lowest offer by any other paper. The petition further alleges that after said publication had been examined and approved by the City Council that a warrant for $300 was directed to be drawn in appellee’s favor. That it was accordingly so drawn and was signed by the city clerk but that the appellant as mayor refused to sign the said warrant; and then asks that he be required to execute the warrant as required by law.

To this amended petition the appellant filed a demurrer. Upon a hearing the court overruled the demurrer and the appellant elected to abide by the demurrer and judgment was rendered upon the demurrer in favor of the appellee.

The only questions argued and insisted upon by. counsel are, that the publication was made by order of the City Council through its committee; that the same was not in accordance with the provisions of the statute and counsel for appellant relies upon section 97 of chapter 24 of Hurd’s Rev. St. (J & A. ff 1369) as authority for requiring the publication to be made by the clerk, and insists that before the' publication can be a lawful one that the clerk must have caused its publication. The statute referred to 'is as follows: “The treasurer shall report to the city council or board of trustees, as often as required, a full and detailed account of all receipts and expenditures of the corporation, as shown by his books, up to the time of said report; and he shall, annually, between the first and tenth of April, make out and file with the clerk a full and detailed account of all such receipts and expenditures, and of all his transactions, as such treasurer, during the preceding fiscal year, and shall show in such account the state of the treasury at the close of the fiscal year; which account the clerk shall immediately cause to be published in a newspaper printed in such city, if there be one, and if not, then by posting the same in a public place in the clerk’s office.” The object of this statute is to secure a publication of such report of the treasurer that the inhabitants may know how the money may have been expended, and the city clerk is only made a means or instrument for causing such publication, and the fact that he may have caused its publication, or that some other officer of the city may have done so, could, in our judgment, make no differ-once. The clerk was not authorized to pay or make any contract for the payment for such publication, but its payment must be made by the City Council. The work of the clerk was merely clerical. If the clerk had made a contract for publication which was exhorbitant then the City Council could have only been required to have paid a reasonable compensation for the work. The publication of the report was a matter authorized by law to be done, and the City Council has the power to control the finances of the city and direct where and when payments may be made from its treasury. The manner or means whereby the making of the publication is accomplished cannot, in our judgment, be at all material if no fraud has been practiced. The City Council ordered the publication to be made and received the benefit of it. We do not believe that where correctness of the bill has been tested and approved by the City Council, and no fraud shown to have been practiced, and the publication itself having been authorized by law, that the mayor should be permitted to say it should not be paid. The city having received the benefit of the publication, and having audited the account, and ordered the warrant to issue therefor, and such having being drawn by the clerk and presented to the defendant, shows a prima facie right in the appellee to have the defendant perform his duty, and upon refusal so to do, without reasonable excuses, he will be compelled to perform it by mandamus. People v. Hastings, 5 Ill. App. 436. Where the City Council had the power and the means to contract and pay for such publication, and the publication had been furnished, the bill audited and allowed and warrants ordered to be issued in payment therefor, “In the absence of any fraud being claimed, these facts made the warrants valid by way of a settlement of a disputed claim against the city; for which reason also it was the duty of the appellant, as mayor, to sign the warrants.” Frederick v. People, 83 Ill. App. 89, 92.

Counsel for appellant, in his argument cites in support of his position the ease of Roemheld v. City of Chicago, 131 Ill. App. 76. We do not regard this case as of benefit to the appellant, as there the work performed was held not to be within the contract but the work for which payment was sought to be recovered was extra and not contracted for, but, upon the other hand, there was a clause in the contract itself which restricted the liability of the municipality. Also the case of Hope v. City of Alton, 214 Ill. 102, is relied upon, but the court in that case also held that the work performed was in violation of an ordinance of the City of Alton, and payment for such work was actually prohibited by such ordinance; and while the Supreme Court in that case recognized that when a city gets what it had authority to have, in some way it should pay for what it received, whether it exercises the power in the prescribed way or not; it avoids this rule by the statement that the contract sued upon was prohibited by a valid ordinance.

The City Council had authorized the publication in this case, the work had been done to the entire satisfaction of the council, the clerk had also approved the work, and we believe that it would be very technical and manifestly unjust to permit appellant to deprive the appellee of his just compensation for the services rendered by him by arbitrarily refusing to sign the warrant.

The judgment of the lower court is affirmed.

Judgment affirmed.