text:
    Wabash, St. Louis & Pacific Railway Company v. Emanuel B. Deardorff, by next friend, etc.

    1. Negligence — Hazards incident to service. — Action against a railroad company, by a brakeman, for an injury received while coupling cars. The sole and only negligence charged was in permitting iron to project overt], end gate of the cars. The evidence showed that it was customary to load cars with railroad iron in this manner; that for two years prior to the accident, iron had thus been loaded on the cars in the yards where appellee was employed, and no accident had happened; that no one knew the manner of loading the cars better than appellee, and those skilled in the business testified that cars so loaded are constantly coupled without accident. Held, that’ appellee must of necessity have known when he accepted the position that he was liable at any and all times, when on duty, to he called upon to make couplings of cars loaded in this maimer, and when he entered the service he assumed this as well as all other hazards of the ordinary perils incident to the service; that appellee failed to exercise the care and caution which the situation required.

      2. Fellow servants — Instructions.—Whether the person injured, and the persons by whose negligence the injury is alleged to have occurred, are fellow servants of the same master, is a question of fact to he found by the jury from all the evidence in a given case, and not a question of law for the determination of the court.
    Appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. Ckea & Ewing and Messrs. Outten & Vail, for appellant;
    that the railroad company was not guilty of negligence in loading its cars in the manner it did, cited Atchison, T. & S. F. Ry. Co. v. Plunket, 25 Kan. 188; Day v. T. C. S. & D. Ry. Co., 42 Mich. 523; Baldwin v. C. R. I. & P. R. R. Co., 50 Ia. 680: Mich. C. R. R. Co. v. Smithson, 45 Mich. 212; I. B. & W. Ry. Co. v. Flanigan, 77 Ill. 365.
    As to non-liability of employer for the risks ordinarily incident to the employment: C. & T. R. R. Co. v. Flanigan, 11 Bradwell, 147; Camp Pt. Mfg. Co. v. Ballou, 71 Ill. 421; Ladd v. New Bedford R. R. Co., 20 Am. R. 332; Nayler v. C. & N. W. Ry. Co., 5 Am. & Eng. R. R. C. 460; Ballou v. C. & N. W. Ry. Co., 5 Am. & Eng. R. R. C. 480; Sykes v. Packer, 99 Penn. 465: Green, etc., Co. v. Bresmer, 97 Penn. 103; Northern Central Ry. Co. v. Hasson, 39 Legal Intelligencer, 442.
    As to fellow servants: Smith v. Flint, etc., Ry. Co., 46 Mich. 258; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; Valtez v. O. & M. R. R. Co., 85 Ill. 500.
    Mr. I. A. Buckingham and Messrs. Eldeidge & Hostetlek, for appellee;
    as to fellow servants, cited C., R. I. & P. R. R. Co. v. Henry, 7 Bradwell, 322; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302.

       Two eases.

   Higbee, J.

By agreement of parties these eases are to be tried together, the facts relied upon for a recovery being the same in each.

The actions were brought against the railroad, the one by Emanuel Deardorff, a minor, in his own name, by his next friend, and the other by his father, to recover for a personal injury received by the said Emanuel in coupling cars on a side track of appellant’s road.

The circumstances of the injury were, that on the night of January 16,1880, a freight train on appellant’s road left Dan-ville for Decatur. On the way the rear brakeman became sick, and the conductor telegraphed to the latter place for a man to take his place when Emanuel B. Deardorff, a strong young man about nineteen years of age, who was then, and had been for some time previous, employed by the company as a brakeman, was assigned to that duty. Before the train arrived at Decatur, a freight train from the east, had side tracked near the east end of the 7th or coal track, three coal cars belonging to the Baltimore and Ohio road, loaded with old iron for Springfield. The iron rails were longer than the cars in which they were placed and one end rested on the bottom of the car, pressing against the gate at that end; thence, at an angle of two and a half feet in thirty, they passed over and rested on the gate at the other end, projecting from a foot and a half to two feet over the end of the car. About two o’clock A. m. the train arrived. The night was dark and foggy, and Deardorff says the lamp of the sick brakeman, which he took by the direction of the conductor, was somewhat smoked. He went to the 7th track to make the couplings of the Springfield cars, opened the switch and gave the engineer the signal to back up, and then went to the place where the coupling was to be made; did not notice what kind of a car it was nor that the iron rails extended over the end; in attempting to make the coupling he was struck in the head by the projecting iron, and received the injury complained of.

The first count of the declaration in each case chai’ges that the company was guilty of negligence in permitting its servants, engaged in a different department of its service, to so load the iron upon its cars as to project over the end of the same.

The second count charges the negligence to consist in receiving from other railroad companies the cars so negligently and dangerously loaded.

It is contended by appellant that the evidence wholly failed to sustain the charge of negligence against it; that the injury received by Deardorff was the result of his own negligence, and that he and the parties who loaded the cars were fellow servants, and for these reasons no recovery could be sustained against the company.

There was no defect in the cars themselves or their mode of coupling. The sole and only negligence charged was in permitting the iron to project over the end gate of the cars.

It is shown by the evidence that for a period of one to two years before the injury complained of, there were switched in the Decatur yards from five to six hundred cars daily. The manner of shipping railroad iron was almost entirely on fiat and coal cars, and for a period of three years before the accident to Deardorff, there were from fifteen to twenty such cars daily, on an average, passed through the yard loaded with such iron. Sometimes box cars and stock cars were used for the purpose, but in all kinds of cars used, whether box, stock, flat or coal cars, the iron was longer than the car and would project over the end of the car and the coupling had to be made by stooping under it. The testimony of persons skilled in the business shows that with reasonable care, cars loaded with railroad iron, timbers and telegraph poles extending over the end, are constantly coupled without accident. Indeed, no accident from this cause was ever known to have happened in the Decatur yards prior to the one by which Deardorff was injured. This manner of loading cars was known to no one better than to Emanuel J3. Deardorff. He was a bralceman, perfectly familiar with the business done in the yard at Decatur and on appellant’s road. He must of necessity have known when he accepted the position, that he was liable at any and. all times, when.on duty, to be called upon to make couplings of cars loaded in this manner, and when he entered the service he assumed this risk as well as all other ordinary perils incident to his service.

"We are also of the opinion that the party injured failed to exercise the care and caution which the situation required. It was but little short of recklessness to attempt to make the coupling, an act always attended with more or less danger, without looking at the car to be coupled. The least effort on his part to discover his danger would have disclosed it to him. If he failed to use the precaution necessary for his protection when he had the opportunity to do so, it was his own fault, and though attended with serious consequences, the law does not hold his employer liable for his loss.

For these reasons the court erred in overruling appellant's motion for a new trial.

The court also erred in giving to the jury in behalf of appellees, instructions 1, 2, 3, 4 and 5. They tell the jury that Emanuel B. Deardorff was not a fellow servant with certain other persons by whose negligence he claims to have been injured. In this the instructions invaded the province of the jury. Whether the person injured, and the persons by whose negligence the injury was alleged to have occurred, were fellow servants of the same master, was a question of fact to be found by the jury from all the evidence in the case, and not a question of law for the determination of the court. The legal definition of fellow servants may be given by the court to the jury in an instruction, but whether the proof brings a particular case within the definition is a question of fact for the jury. I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Higbee, J.

license: Public Domain

text:
    Andrew Chrisman v. Garr et al.
    b Verdict auainst evidence. — As plaintiff in error claimed the benefit of a credit from the sale of the chattel mortgage, and was entitled to it under the pleadings and proofs, and no good reason is shown why it was not allowed him, the judgment is reversed.
    2. Usury. — Where a note was made in the State of Indiana and was not shown to have been usurious by the laws of that State, the plea of usury was not sustained.

      Error to the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. Bobert L. MoKinlay and Mr. Henry S. Tanner, for plaintiff in error;
    that the verdict was against the weight of evidence, cited Booth v. Hynes, 54 Ill. 363; Southworth v. Hoag, 42 Ill. 446.
    Messrs. Sellar & Dole, for defendants in error.
   Higbee, J.

Plaintiff in error executed and delivered to defendants in error on June 11, 1880, his promissory note for $497 and secured the same by a chattel mortgage on an engine and separator. On the trial of this cause, which was a suit brought on the note, a judgment was rendered against plaintiff in error for the full amount of the note and interest thereon, notwithstanding the undisputed fact, as it appears by the record, that before the suit was commenced, defendants in error had taken possession of the mortgaged property, sold it under the mortgage, and bought it themselves at the sale for the sum of $695. Plaintiff in error claimed the benefit- of this credit on the trial of the cause and was entitled to it under the pleadings and proofs, and no good reason is shown why it was not allowed him.

The plea of usury was not sustained. The note was made in the State of Indiana and it was not shown to have been usurious by the laws of that State.

Judgment reversed and cause remanded.

Beversed and remanded.


text:
    Indiana, Bloomington & Western Railway Company v. Henry Craig.
    Fire from spares of engine — Evidence rebutting prima facie case against railroad company. — Where damage is caused by a fire communicated to property from sparks of an engine, the prima iacie case made out under the statute (R. S. 1881, Ch. 114, § 89) is rebutted by tbe company showing that at the time of the accident the engine, smoke stack and spark arrester were all safe and in good order and the engineer in charge of the locomotive was experienced and competent and properly performed his duty.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. F. Y. Hamilton, for appellant;
    cited C. & A. R. R. Co. v. Quaintance, 58 Ill. 389; R. R. I. & St. L. R. R. Co. v. Rogers, 62 Ill. 346; I. C. R. R. Co. v. Mills, 42 Ill. 407; C. & A. R. R. Co. v. Bloomfield, 7 Bradwell, 211; C. & A. R. R. Co. v. Smith, 11 Bradwell, 348; C. & N. W. Ry. Co. v. Baller, 7 Bradwell, 625.
    It should be shown that the fire emanated from the engine: St. L., V. & T. H. R. R. Co. v. Funk, 85 Ill. 460; C. &. A. R. R. Co. v. Clampit, 63 Ill. 95 ; I. C. R. R. Co. v. Frazier, 64 Ill. 28;. P., C. & St. L. R. R. Co. v. Campbell, 86 Ill. 443.
    Mr. W. E. Hughes, for appellee.
   Higbee, J.

A judgment was rendered in this case against appellant for the value of a stack of hay, burned, as is alleged, by sparks emitted from a locomotive drawing a passenger train going west on appellant’s road, on the afternoon of March 17, 1883. No one saw the commencement of the fire, hut there is no doubt from the evidence that it commenced outside of appellant’s right of way, in some dry grass in the field of Mr. Long, and ran from thence across the field into the meadow of appellee where the stack was burned.

Assuming that the fire was caused by sparks from the locomotive, this made out a prima facie case under the statute entitling appellee to recover, unless the same was rebutted by proof by appellant. This it has successfully done by proof showing that the smoke stack was supplied with the best appliances for arresting sparks, in use or known to the profession of locomotive engineers; that it was examined in the shops of the company ,by a skilled boiler maker on the day before and the day after the accident, and found to be in good condition and safe. The engineer in charge of the locomotive at the time of the accident was experienced and competent and properly performed his duty, and the engine, smoke stack and spark arrester were all safe and in good order, and the' grade nearly a level, requiring no extra .steam.

The proof of these facts fully rebutted the presumption of negligence arising from the mere fact that the fire was occasioned by the passing train, and entitled appellant to a verdict. C. &. A. R. R. Co. v. Quaintance, 58 Ill. 389. The verdict was not supported by the evidence, and the court erred in not granting a new trial.

Judgment reversed and cause remanded.


author: McCulloch, P. J.

text:
    Meredith Cooper v. Abraham McNeill et al.
    1. Master’s report — Evidence as to payment op check. — Where the hoots of a hank, supported by the testimony of its officers, showed that a note was paid at a certain time, and appellee did not claim to pay any part of it, while appellant testified under oatti that he paid it all. Held, that the master in stating the account between appellant and appellee should have allowed appellant the face of the note, less the discount, on the day it was given.
    2. Same. — Where a check was without any satisfactory explanation, hut the inference was that it was given in payment of a debt due from appellee to appellant, it was error for the master to charge appellant with the amount of the check, as there was no sufficient evidence to do so.
    3. Accounts of partners — Interest.—The general rule is that in the absence of any agreement to that effect, the accounts of partners with the firm do not draw any interest. But in this case, in view of the fact that appellant, after a delay of so many years, has failed to come to a settlement with appellee, and that he now comes into a court of equity seeking affirmative relief, he ought to be required to do equity, which is to pay interest at six per cent, on all balances found due from him to appellee from time to time, and that appellee do likewise.
    4. Accounts — Rate of interest. — Where the court allowed ten percent. interest upon the amount found due from appellant to appellee, from 1876 until the date of the decree, and there was no evidence of any agreement between them to pay ten per cent, interest per annum, and in 1873 a note for $2,000, payable in twelve months after date with ten per cent, interest, secured by mortgage, had been given to secure what appellant then owed to appellee or what he might thereafter owe him. Ueld, that this was not a contract to pay interest on that debt. The principal of the note and the interest thereon constituted the security out of which appellee was to be indemnified, and if the amount found due from appellant had amounted to the principal andynterest of that note, then a decree could have passed for that amount. But in the absence of any agreement to pay a higher rate, six per cent, is all that can be allowed for money found due on an account stated, or upon money paid to or for another at his request.
    5. Chancery. — The objection to the decree that the assignment of the note and deed of trust to T. does not carry with it the indebtedness of appellant to appellee, and that the decree in favor of T. upon his cross-bill, to which appellee was not made a defendant, is not a bar to appellee’s subsequent recovery of the debt, is not well taken, in view of the fact that in the original bill filed by appellant, both V. and appellee are made parties, and that appellee is therefore in court and will be bound by the decree.
    Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. McGuire & Salzenstein, Mr. Stephen French and Mr. L. F. Hamilton, for appellant;
    as to recovery of interest, cited Aldrich v. Dunham, 16 Ill. 403; I. C. R. R. Co. v. Cobb, 72 Ill. 148; Chicago v. Allcock, 86 Ill. 384; R. S. Ch. 72, § 2; Flake v. Carson, 33 Ill. 518; Myers v. Walker, 24 Ill. 133; Sammis v. Clark, 13 Ill. 544; Clement v. McConnel, 14 Ill. 154; West Chicago A. W. v. Sheer, 104 Ill. 586; Moss v. McCall, 75 Ill. 190; Athol Savings Bk. v. Pomeroy, 115 Mass. 573.

      A mortgage is only an incident of the debt, and passes in equity with the principal thing: Vansant v. Alimon, 23 Ill. 30; Purdee v. Bindley, 31 Ill. 174; Olds v. Cummings, 31 Ill. 188; Mapps v. Sharpe, 32 Ill. 13; Edgerton v. Young, 43 Ill. 464.
    But an assignment of the mortgage will not carry the debt: Hamilton v. Lubeck, 51 Ill. 415; 1 Jones on Mortgages, § 805.
    Messrs. Orendorff & Creighton, for appellees;
    cited Riley v. Quigley, 50 Ill. 304.
   McCulloch, P. J.

On the 10th day of September, 1873, appellant made a note for the sum of $2,000 to Abraham McNeill and Samuel T. Henry, payable twelve months after its date with ten per cent, interest per annum, which note was secured by deed of trust to one Williams. Appellant and McNeill had been in partnership in the business of buying and selling live stock, for which purpose they had borrowed some money and given their note in bank. It appears from the report of the master filed in the cause that McNeill had advanced toward the business of the firm the sum of $1,151.40 and Cooper the sum of $628.S6; that at the time of the making of said note for $2,000, the firm was indebted to the bank on overdraft the sum of $72.69 which Cooper paid, and on their note to the bank in the sum of $1,149.10. Of this last mentioned sum, McNeill paid $851.35 and McNeill and Cooper gave their joint note for $300 which Cooper was to pay. The original bill in this case sets up that the note for $2,000 secured by the deed of trust aforesaid, was given to indemnify McNiell for what Cooper was owing him on partnership account and for any advances he might make to or liabilities incurred for him in the future. The bill asks for an accounting between them, and that upon Cooper’s paying what might still be due to McNeill, the note and deed of trust might be canceled.

The note for $2,000 was subsequently assigned to Yocum, who was made a party to the bill and who filed a cross-bill to foreclose the deed of trust.

The court caused an account to be stated by the master, who found the balance due from Cooper to McNeill, January-12, 1876, to be $687.09 to which report exceptions were filed in due time by counsel for appellant, which were overruled by the court. The court then added interest on said sum of $687.05 at the rate of ten per cent, per annum from January 12, 1876, until the date of the decree, and rendered a decree of foreclosure in favor of Yocum for the sum of $1,193.79. From this decree Cooper has appealed to this court.

The first objection urged to the decree is, that in stating the partnership account, the master failed to give appellant credit for the proceeds of the $300 note given to the bank simultaneously with the giving of the $2,000 note, as so much money paid by him on account of the indebtedness of the firm to the bank. The books of the bank, supported by the testimony of its officers, show that this note was paid December 2-, 1873. Cooper testifies that he paid it on that day. The reason given by the master for not allowing it, was that appellant did not produce the note while in all other cases of payment he produced either check or note. At the same time he reports that McNeill did not show that he had paid it; he therefore gives neither party credit for its payment. That the note is paid is very certain; that it was paid by one or both of the makers is also very certain. McNeill does not claim to have paid any part of it, while Cooper testifies under oath that he paid it all. We can see no good reason why he should not be allowed the face of the note, less the discount, on the day it was given.

The second exception to the master’s report is that he has charged Cooper with a certain check for $182.32, dated January 9, 1876. This is. not claimed to have been a partnership transaction, but an advance or loan of money. McNeill can give no explanation of what the check was given for. Cooper attempts to explain it by saying it grew out of a trade in hogs between himself and Henry, who was a partner with McNeill. This, Henry denies. The check is therefore without any satisfactory explanation. The inference is it was given in payment of a debt due from McNeill to Cooper. 2 Parsons on Notes and Bills, 81. There is therefore no sufficient evidence to charge him with the amount of this check.

The third and fourth exceptions, we think, were properly overruled, and the evidence in support of those items needs no discussion at our hands.

The fifth exception to the master’s report is to the effect that interest at the rate of ten per cent, was allowed upon the partnership accounts between the partners. The general rule is that in the absence of any agreement to that effect, the accounts of partners with the firm do not draw any interest. Moss v. McCall, 75 Ill. 190. In the statement of the partnership accounts the master allowed interest at ten per cent, per annum upon McNeill’s excess over Cooper in the firm, from September 10, 1878, until January 12, 1874, at which time Cooper paid $500. This left a balance of $171.19, upon which the master allowed interest at ten per cent, per annum until January 30, 1875. At that date Cooper paid McNeill $200, which overpaid him $10.99. Had the master allowed Cooper credit for the $297.25, the proceeds of the $300 note on September 10, 1873, the balance against him would then have been $502.22. The payment of the $500 on January 12, 1874, would have nearly discharged this balance, and when Cooper afterward paid McNeill $200 on the erroneous supposition that he still owed him that amount on partnership account, McNeill would have owed Cooper nearly $200. If it was proper to charge Cooper with interest while he owed McNeill, then certainly it would be proper to charge McNeill with interest while he owed Cooper.

But for reasons yet to be stated we would not regard it inequitable to allow interest'on these balances at the rate of six per cent. We perceive no other valid objections to the master’s report.

It is assigned for error that the court erred in allowing ten per cent, interest per annum upon the amount found due from Cooper to McNeill from January 12, 1876, until the •date of the decree. We find no evidence of any agreement between them to pay interest at ten per cent, per annum. The note secured by the mortgage having been given to secure what Cooper then owed to McNeill or what he might thereafter owe him is not a contract to pay interest on that debt. The principal of the note and the interest thereon up to the time of the decree, constituted the security out of which McNeill was to he indemnified, and if the amount found due from Cooper had amounted to the principal and interest of that note then a decree could properly have passed for that amount. But in the absence of any agreement to pay a higher rate, six per cent, is all that can be allowed for money found due on an account stated, or upon money paid to or for another at his request. Chap. 71, Sec. 1. R. S. 1871. Athol Savings Bank v. Pomeroy, 115 Mass. 573.

So in the absence of any agreement for a higher rate, six per cent, would be the maximum rate that could in any event be allowed as between partners.

In view of the fact that appellant, after a delay of so many years, has failed to come to a settlement with McNeill, and that he now comes into a court of equity seeking affirmative relief, he ought to be required to do equity, which is to pay interest at six per cent, on all balances found due from him to McNeill from time to time, and that McNeill do likewise.

It is further urged as an insuperable objection to this decree, that the assignment of the note and deed of trust to Yocum does not carry with it the indebtedness of appellant to McNeill, and that the decree in favor of Yocum upon his cross-bill, to which McNeill was not a defendant, is not a bar to McNeill’s subsequent recovery of the debt. If the cross-bill were the only bill in the case there would be great force in this objection. But the original bill in the cause was a bill filed by appellant in which both Yocum and McNeill are made parties, the object of which bill was to take an account between appellant and McNeill as to the amount due from appellant for which the note and deed of trust stood as security, and for leave to appellant to pay the same in order that the trust deed might be canceled.

McNeill is therefore in court and will be bound by the decree. If there is any controversy between him and Yocum as to which of them is entitled to the money he must now assert his claim or forever hold his peace. All parties in interest being before the court, it will be proper to decree a release of the the deed of trust upon payment of the money to whomsoever the court may find is entitled to it, and in default of such payment to order the premises to be sold. For the errors herein indicated the decree of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


text:
    F. K. Whittemore v. Andrew Shiell et al.
    1. Foreclosure suit — Parties.—It is a general rule that adverse claimants can not be made parties to a foreclosure suit for the purpose of litigating their titles. The only proper parties are the mortgagor and mortgagee, and those who have acquired any interests from them subsequent to the mortgage.
    2. Owner op tax title not a proper party. — The owner of a tax title, unless he has also acquired some interest in the equity of redemption, is not a proper party to a foreclosure suit for the purpose of testing the validity of his title. And when it appears, from a party defendant’s answer in a foreclosure suit, that his claim rests wholly upon his tax title, it is the duty of the complainant to dismiss his bill as to him.
    3. Mortgage — Change in security — Prior judgment. — Where a party buys land incumbered with a mortgage and contemporaneously with the purchase and as a part thereof, executes a note and mortgage in lieu of the one previously given, thus assuming the payment of the mortgage as part of the price of the.iand, the later mortgage will have priority over a judgment recovered against the purchaser after the first mortgage was given.
    Appeal from the Circuit Court of Morgan county; the Hon. 0. Epleb, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. W. P. Calloun, for appellant;
    cited Gaskell v. Wales’ Ex., 9 Stew.; Small v. Stagg, 95 Ill. 39.
    Messrs. Bbown, Kirby & Russell, and Messrs. Springer & Hummer, for appellees;
    cited Curtis v. Root, 20 Ill. 53; Christie v. Hale, 46 Ill. 121; I. C. R. R. Co. v. McCullough, 59 Ill. 176; Shaver v. Williams, 87 Ill. 469; Campbell v. Carter, 14 Ill. 286; Edgerton v. Young, 43 Ill. 464.
   McCulloch, P. J.

On the 18th day of March, 1884, James P. Willard executed his note and mortgage to appellee, Andrew Shiell, for the sum of $1,500, payable one year after date. On the 11th day of November of the same year, Wilmer S. Lamb recovered a judgment in the United States District Court against one B. F. Pucker for the sum of $327 and costs of suit. On the 4th day of February, 1878, the Willard mortgage being yet unsatisfied, said Willard conveyed the premises covered by the mortgage to said Pucker by a warranty deed, and as a part of the same transaction Pucker gave to Shiell a new note for the sum of $1,500, secured by a new mortgage upon the same premises, whereupon Shiell gave up the Willard note and in a short time thereafter released the first mortgage.

On the 3d day of October, 1878, Pucker executed his note and mortgage to C. F. Grassley for the sum of $200 which is yet unpaid. On the 15th day of July, 1881, the premises named in these several mortgages were sold under an execution issued upon the judgment in favor of Lamb, and against Pucker to appellant Whittemore for the sum of $564.24, and the same not having been redeemed he has procured a deed therefor.

On the 25th day of August, 1879, the said premises were sold at a tax sale, and one Dendel became the purchaser, and no redemption from the same having taken place, a tax deed issued to Dendel on the 27th day of August, 1881, and on the 27th day of December, 1881, said Dendel conveyed the said premises to appellee Willard.

On the 18th day of October, 1882, appellee Shiell filed his bill to foreclose his mortgage, in which Pucker and his wife and J. P. Willard, C. F. Grassley and two others are made parties defendant.

Grassley answered the bill, claiming that the premises were the homestead of said Pucker, that the Shiell mortgage contained no release of the homestead, which his mortgage did. He therefore claimed precedence over Shiell’s mortgage. He also filed a cross-bill for relief alleging the same facts.

Willard answei’ed the bill, setting up his claim under the tax title, and also a cross-bill, in which he sets up the same facts and also that he and Dendel have paid all taxes on the premises since the tax sale, and prays that he be decreed the title to the property and for general relief.

Whittemore answered the bill of Shiell, setting up the facts in relation to his title, acquired under the execution sale and claiming priority over the Shiell mortgage.

Grassley and Whittemore answered the cross-bill of Willard in which answers they set up that the tax title was void.

Shiell and Whittemore answered the cross-bill of Grassley, denying his equities as claimed, and Whittemore sets up that his title, acquired under the execution sale, is superior to the lien of Grassley.

The court found that the tax title held by Willard was void, but that Willard and Dendel had paid the taxes thereon from August 25, 1879, to April 14, 1883, and decreed that Willard should be repaid the same with interest at six per cent., amounting in all to $200.32, out of the proceeds of the sale of the property. The court finds due to Shiell the sum of $1,862.30, and to Grassley the sum of $293.50, which sums are to draw interest from the date of the decree; and to appellant Whittemore the sum of $564.24, which is to draw interest at six per cent, from July 15, 1881, all of which sums Rucker was decreed to pay within ten days from the date of the decree, or in default thereof, the premises should be sold by the master. The decree then directs that in case of a sale of the premises the master shall pay the costs of suit and the expenses of the sale, after which distribution shall be made of the proceeds of sale as follows: first, to Willard, $200.32, with interest from the date of the decree; secondly, to Shiell the sum of $1,862.50, with interest from the date of the decree; thirdly, to Whittemore, $564.24, with interest .from July 15, 1881; fourthly, to Grassley, $293.50, with interest from the date of the decree.

It is assigned for error that the court erred in decreeing the sum of $200.32, or any other sum, to be paid to Willard out of the proceeds of the sale. If it be true that Whittemore has a valid title as against Rucker, acquired through his execution sale, then, after satisfying all prior liens, he, as owner of the equity of redemption, would be entitled to the entire residue of the proceeds of the sale. Although it is not assigned for error we are unable to see why the court should have limited him to what he paid for his title with interest from the day of his purchase, for, if his title is a good one, it ought to have extinguished the Grassley mortgage; or if the judgment had lost its priority by reason of execution not having been issued in time to have preserved the lien, then appellant should have been postponed to Grassley. But the whole theory of appellant’s defense was that his judgment was the first lien, and so we infer that, as the court found, his rights take precedence of those of Grassley. He is therefore in a position to claim all the purchase money after prior liens shall have been satisfied.

It is a general rule that adverse claimants can not be made parties to a foreclosure suit for the purpose of litigating their' titles. The only proper parties are the mortgagor and mortgagee, and those who have acquired any interests from them subsequent to the mortgage. Jones on Mortgages, § 1440. The owner of a tax title, unless he has also acquired some interest in the equity of redemption, is not a proper party to a foreclosure suit for the purpose of testing the validity of his title. Horton v. Ingersoll, 13 Mich. 409; Roberts v. Wood, 38 Wis. 60. But it is argued that this case is analogous to one wherein the owner files a bill to remove a void tax title as a cloud upon his title, and that before the court will grant relief, it will order the complainant to pay the defendant all taxes legally assessed upon the land, which the latter has paid. Such is not the scope of this bill, nor could Shiell, who is out of possession, have maintained a bill solely for that purpose. When, therefore, it appeared from Willard’s answer that his claim rested wholly upon his tax title, which if valid, would have been paramount to all the mortgages as well as to the equity of redemption, complainant Shiell should have dismissed his bill as to him. He had no right to retain him as a party defendant, and by so doing let him in to set up a claim against the owner of the equity of redemption or subsequent incumbrances which had no relevancy to the subject-matter of the suit. Willard and Dendel paid the taxes in support of their tax title and so discharged the land from the lien created by them. They were not paid to relieve the titles held by the other parties of an incumbrance thereon, but in hostility thereto. Whittemore asks no relief against the tax title so acquired, and we can not see upon what principle he should be obliged to pay off these taxes or suffer them to become a lien upon his title. We are therefore of the opinion that the court erred in ordering these taxes to be paid out of the proceeds of the sale.

It is further assigned for error that the court erred in decreeing a foreclosure of the Willard mortgage in favor of Shiell and in decreeing Shiell to have priority over appellant. It is true that the court does find that Shiell is entitled to a decree of foreclosure of the Willard mortgage, and finds the sum of $1,862.50 due thereon. The substance of the decree, however, is that all the facts being considered, to wit, the making of the mortgage from Willard to Shiell, the sale by Willard to Rucker, the execution of the note and mortgage by Rucker in lieu of the one previously given by Willard, and the release of the Willard mortgage by Shiell, the latter had acquired a first lien upon the premises for the amount found due.

When Rucker bought the land it was incumbered by the Willard mortgage. Had it remained a charge upon the land appellant’s judgment would have become a lien upon the equity of redemption only. He suffers no prejudice by reason of the change of the security. This was done contemporaneously with the purchase by Rucker and as a part thereof, he assuming the payment of the Willard mortgage as part of the price of the land. In such case a prior judgment against Rucker attaches only to the equity of redemption. It is needless for us to discuss this point. It is fully settled by the Supreme Court in numerous decisions. Curtis v. Root, 20 Ill. 53; Christie v. Hale, 46 Ill. 121; I. C. R. R. Co. v. McCullough, 59 Ill. 176; Shaver v. Williams, 87 Ill. 469. We therefore see no error in this part of the decree. But for the error in retaining Willard as a party to the suit and the granting of any relief upon his cross-bill, as well as for adjudicating upon the validity of his tax title, the decree will be reversed and the cause remanded.

Reversed and remanded.


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    St. Louis, Vandalia & Terre Haute Railroad Co. v. Nicholas Hurst.
    1. Evidence — Deed gbanting bailboad bight of way, etc. — Damage by digging ditch. — An action brought by appellee against appellant, a railroad company, for damages caused by the latter opening a ditcli along its tract, by which the natural channel and flow of water was so changed as to cause the same to flow upon appellee’s land to his damage, etc. Held, that itwas error for the court to refuse to allow appellant to introduce in evidence a deed of land for the location of the railroad given by appellee to appellant which gave appellant such rights in appellee’s land as it might and could have acquired by regular condemnation proceedings, and an immunity from all damages that appellee might have claimed in sueh a proceeding. For if the ditching complained of was a necessary incident of the construction and maintenance of appellant’s road, the release in this deed would operate as a complete bar to any action therefor. The court is of opinion that before appellee can recover damages from appellant it must appear that appellant’s acts amount to a departure from or were not embraced within the purposes for which the release was made.
    2. Same — Statute of Limitations. — Where to the plea of the Statute of Limitations, appellee replied in effect, admitting the acts complained of were done more than five years before the .commencement of the suit, yet he ought not, on that account, to be barred of his action because the wrongs complained of constituted a continuing injury up to the time of suit brought. Held, that by joining issue and going to trial upon this replication, the acts of appellant at and from the time of the construction of the road in so far as they had a tendency to divert the water from its natural tendency and to precipitate it upon appellee’s land, were thrown open for investigation before the jury, and it was the right of appellant to have the verdict limited by the damages not covered by the release. For this purpose the deed was proper evidence, and should have been admitted.
    Appeal from the Circuit Court of Clark county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed February 5, 1884.

      Mr. John G. Williams and Messrs. Golden & Wilkin, for appellant;
    as to what a deed of land to a railroad company for its location is presumed to include, cited Pierce on Railroads, 133; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99; Rood v. N. Y. & E. R. R. Co., 18 Barb. 80; Hortsman 7. L. & C. R. R. Co., 18 B. Mon. 218; St. L., V. & T. H. R. R. Co. v Mollett, 59 Ill. 235; St. L. & S. E. Ry. Co. 7. Teters, 68 Ill. 144; Conwell v. S. & N. W. R. R. Co., 81 Ill. 232.
    In construing a grant, when anything is granted all the means to attain it and all the fruits and effects of it are granted also: Babcock 7. West R. R. Co., 9 Met. 553; Liford’s Case, 11 Rep. 54; Howton v. Frearson, 8 T. R. 56; Cent. R. R. Co. v. Valentine, 5 Dutcher, 561.
    Méssrs. Whitehead & Jones, for appellant;
    cited T. W. & W. Ry. Co. v. Morrison, 71 Ill. 616; Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Reed, 57 Ill. 29; City of Pekin v. Brereton, 67 Ill. 477; Gillham v. Madison Co. R. R. Co,, 49 Ill. 485; Gormley v. Sanford, 52 Ill. 158; St. L., V. &. T. H. R. R. Co. v. Capps, 72 Ill. 188.
   McCulloch, P. J.

The declaration in this case alleges that appellee is the owner of certain land through which appellant’s railroad runs; that the defendant^ by its agents and employes, went upon the land immediately west of and adjoining and on the land of appellee, and opened a deep ditch along its track for a great distance west of appellee’s land, and thence 'eastward to a point opposite the same and. on appellant’s right of way, and caused said ditch to open into his said land outside of said right of way, and in doing so changed the natural channel and flow of water so as to cause the same to flow upon the land of appellee,-to his damage, wherefore he brings suit, etc.

To this declaration appellant interposed three pleas: Eirst, not guilty. Second, the Statute of Limitations of fi7e years. Third, a release of the damages sued for.

To the nlea of the Statute of Limitations appellee filed two replications: first, that the cause of action did accrue within five years; second, that the wrongs complained of in the declaration constituted a continuing wrong to appellee up to the time of the bringing of the suit. To the third plea appellee replied that he had not released the damages sued for.

On the trial of the cause appellee called -several witnesses whose testimony tended to prove the facts alleged in the declaration and the damages resulting therefrom. On the part of appellant, witnesses were called whose testimony tended to show that at the place of the alleged injury there was a natural drain for at least a portion of the water complained of, and that some of it flowed there through the ditches made by appellant along the sides of its track for drainage purposes.

Appellant then proposed to introduce a deed from appellee to appellant, dated July 30,1868, whereby for divers considerations therein mentioned, appellee granted to appellant the right of way one hundred feet in width for so much of appellant’s railroad as might pass through the lands where the injury is alleged to have occurred, and whereby he released and relinquished all claim for damages' by reason of the location and completion of said railroad through or upon any part of the same. To the introduction of this deed in evidence appellee objected, and the court sustained the objection, to which ruling appellant in apt time excepted, and now assigns the same as error in this court.

The object of this deed was evidently to relieve appellant from the necessity of taking the necessary proceeding at law to condemn the right of way through appellee’s lands, which appellee, in consideration of the benefits to accrue to himself and the public from the construction of its railroad, was willing to grant without any other compensation. The deed will therefore receive such construction as will give it the effect intended, namely, to give appellant such rights in appellee’s lands as it might and could have acquired by regular condemnation proceedings, and an immunity from all damages that appellee might have claimed in such a proceeding. Such assessment might have included all such damages as would result to appellee from such acts of appellant as were reasonably necessary and proper in the construction, maintenance and operation of the railroad according to the plans then in contemplation, if any such existe;!, or according as the topography of the land through which it ran might render necessary and proper. J. & S. R. R. Co. v. Kidder, 21 Ill. 132; St L.; J. & C. R. R. Co. v. Mitchell, 47 Ill. 165. And what are the proper elements to be considered in assessing damages must depend upon the circumstances of each particular case. In the Kidder case, supra, the plan of the road with reference to a way underneath the track for the passage of the owner’s stock to and from a spring, was considerd a very material element. In the Mitchell case, supra, the cost of building and maintaining a fence along the right of way was a proper element. In St. L., V. & T. H. R. R. Co. v. Mollett, 59 Ill. 235, fruit trees on the land and ditching on adjacent lands were considered. In St. L. & S. E. Ry. Co. v. Teters, the danger of killing stock, and of the escape of fire, were regarded as proper to be considered. Eor all such damages as resulted from and were incident to the construction, operation and maintenance of appellant’s railroad, having due regard to appellee’s interests, the release was a complete indemnity. Conwell v. S. & N. W. R. R. Co., 81 Ill. 232. If the ditching complained of, whereby the waters for some distance along the track were gathered together at the culvert on the right of way throngh appellee’s land, and the discharge of the same at the place complained about were necessary incidents of the construction and maintenance of appellant’s road, then the release would operate as a complete bar to any action therefor.

To the plea of the Statute of Limitations, appellee replied in eifect, that admitting the acts complained of were done more than five years before the commencement of the suit, yet he ought not on that account to be barred of his action, because the wrongs complained of constituted a continuing injury up to the time of suit brought. By joining issue and going to trial upon this replication, the acts of appellant at and from the time of the construction of the road in so far as they had a tendency to divert the water from its natural course and to precipitate it upon appellee’s land, were thrown open for investigation before the jury. It was the right of appellant to have the verdict limited by the damages not covered by the release. For this purpose the deed was proper evidence and should have been admitted.

The rule is settled that where a condemnation takes place according to maps and plans introduced upon the trial, and these should afterward be changed, the land owner can recover any damages resulting from such change. P. & R. I. R. R. Co. v. Birkett, 62 Ill. 332. How far this rule can be made applicable to the present case we will not undertake now to say. But we are of the opinion that before appellee can recover damages from appellant it must appear that appellant’s acts amount to a departure from, or were not embraced within the purposes for which the release was made.

We have examined carefully the authorities cited by counsel for appellee in support of their theory of the case. They announce the well recognized principles that the owner of the dominant heritage may not flood the servient, nor may the owner of the servient heritage dam the water back upon the dominant. If, in the construction of appellant’s road, such a result should have followed, then, in the absence of a release, the damage resulting therefrom would have been a proper element to be considered in the condemnation proceedings which must, necessarily have followed before appellant could have entered upon the land. In that case the injury resulting from such proposed flooding of appellee’s land would have been compensated for by the damages awarded. It follows, therefore, that if the injury complained of here was the necessary result of the construction of the railroad, the damages caused thereby have been fully released. We are unable to perceive that these authorities touch the question now under consideration.

For the error in rejecting the deed when offered in evidence, the judgment of the circuit court will be reversed and the cause remanded.

[Reversed and remanded.


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    Blanchard T. Pettingill et al. v. Lucy Drake.
    1. Evidence — Fraudulent intent. — To render a sale fraudulent under See. 1, Chap. 11, R. S. 1874, it is not necessary to show that the purchaser participated in the fraudulent intent as his title to the property is not in issue. Where the question at issue was whether a husband acting as the general agent of his wife, had within two years next preceding the commencement of this suit fraudulently conveyed or assigned the effects of appellee, his wife, or a part thereof, so as to hinder or delay her creditors. Held, that the evidence as to the transaction in this case was sufficient to have fairly raised upon the trial the question of fraudulent intent and it should have been submitted to the jury.
    2. Husband and wine — Evidence.—Where appellee was put upon the stand as a witness for appellants, and in order to charge her with a knowledge of the sale by her husband of her effects to one W., she was asked certain questions interded to draw out the facts that she had derived certain information concerning the sale from her husband and that she had given him certain directions in regard to it. Held, that this class of evidence does not come within section 5, chapter 51 of the statute. The wife was being examined with reference to her own business transactions in which it was alleged her husband had acted as her agent. She was not testifying against her husband and therefore he could not he prejudiced by anything she might say.
    Appeal from Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. Bunn & Park and Messrs. Cooper & Tennery, for appellants;
    that where a plaintiff has evidence tending to prove his case it is error to exclude it from the jury, cited Holliday v. Burgess, 34 Ill. 193; Merricks v. Davis, 65 Ill. 319; Craig v. Peake, 22 Ill. 185; Kohl v. Bindley, 39 Ill. 195; Crowley v. Crowley, 80 Ill. 469.
    Mr. W. C. Johns, for appellee;
    that the statements of an agent, when not part of the res gestee, are not evidence, cited 1 Greenleaf on Ev., § 113, Vol. 2, § 63, note 5; Waterman v. Peet, 11 Ill. 648; Whiteside v. Margarel, 51 Ill. 507.
    As to estoppel: Hunley v. Hunley, 15 Ala. 91; Reeves v. Matthews, 17 Ga. 449; Young v. Foute, 43 Ill. 33; Ray v. Bell, 24 Ill. 444; Baker v. Pratt, 15 Ill. 568; Smith v. Newton, 38 Ill. 230; Winchell v. Edwards, 57 Ill. 41; Tucker v. Conwell, 67 Ill. 552; Knoebel v. Kircher, 33 Ill. 308; Winslow v. Cooper, 104 Ill. 235.
    An insolvent debtor may sell his property, and if the transaction be an honest one, in good faith, and for an adequate consideration, it matters not how many creditors may thereby be prevented from reaching the property: Erb. v. Cole, 31 Ark. 554; Wood v. Shaw, 29 Ill. 444; Miller v. Kirby, 74 Ill. 242; Bowden v. Bowden, 75 Ill. 143; Waddams v. Humphrey, 22 Ill. 661.
    To impeach a sale’of property as fraudulent as to creditors, it is necessary to show that both the vendor and purchaser fraudulently intended to hinder and delay creditors: Ewing v. Runkle, 20 Ill. 449; Brown v. Riley, 22 Ill. 46; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Hatch v. Jordan, 74 Ill. 414; Bowden v. Bowden, 75 Ill. 143; Meixsell v. Williamson, 35 Ill. 529; Hessing v. McCloskey, 37 Ill. 532; Herkelrath v. Stookey, 63 Ill. 487.
    Even if the evidence was improperly excluded, if the verdict could not have been otherwise, a reversal will not follow: Stobie v. Dills, 62 Ill. 433; Crowley v. Crowley, 80 Ill. 469; Hazen v. Pierson, 83 Ill. 241; Caveny v. Weiller, 90 Ill. 159; Hubner v. Feige, 90 Ill. 208.
   McCulloch, P. J.

This was a suit in attachment, brought by the firm of Moses PettingiU & Co. against appellee, upon the ground that within two years preceding the filing of the affidavit she had fraudulently conveyed and assigned her effects or part thereof so as to hinder and delay her creditors. Appellee filed a plea in abatement to the writ denying the fraudulent conveyance, but suffered a default for want of a plea to the declaration. The jury assessed the damages against her at the sum of $566.30 but found in her favor upon the issue joined upon the plea in abatement, and the court rendered judgment accordingly. From this judgment the plaintiffs in the court below prayed an appeal to this court.

On the trial of the case before the jury, several witnesses were examined on the part of appellants to prove the fraudulent character of the disposition of her stock in trade by appellee,- at the close of which her counsel moved to exclude all the evidence upon that issue from the jury, which motion the court sustained and directed them to find for appellee; to which ruling appellants excepted, and assigned the same for error in this court.

It is contended on the part of appellee, that as she owned no property she could not be guilty of a fraudulent disposition of any. The evidence tends very strongly to show that her husband, Peter J. Drake, was doing business in her name with her consent; that he was acting as her general agent in carrying on-the store; that he contracted debts in her name for goods purchased for the store; that when sued for these debts, judgments were rendered against her, and that the bill of goods for which this suit was brought was purchased in her name. Upon that question the evidence was of such a character that a jury might properly have found her to be the owner of the goods.

It is not denied that the goods were sold to one "Wait. The evidence shows that Wait was doing business in Decatur, while appellee and her husband were carrying on the .business at Warrensburg; that when creditors began to press them for payment, the husband went to Decatur and endeavored to borrow money from Wait, who was already a creditor of the house in the sum of $172.07, but that he failed in obtaining the money; that thereupon Wait went to Warrensburg, and late on Saturday night, without taking any invoice of the stock, made a purchase of the entire contents of the store for the sum of $1,500, when the evidence tends strongly to show that they were worth from $2,000 to $2,500; that the $172.07 which appellee was then owing Wait was deducted from the purchase money, and Wait gave his check for $127.93, and for the balance, $1,200, he gave his note payable in nine months; that of the money so received, appellee’s husband sent $100 to his mother, and that au agreement was entered into with Wait, that if any of the creditors who wanted to settle would take "Wait’s note at nine months, he was to give them his notes, and indorse the amount of such notes on that for $1,200, but if any refused to do so he was to pay them the cash upon appellee’s request, but only such creditors as Drake directed were to be thus preferred by note or cash. In a very few days after the sale Wait had settled with preferred creditors to the amount of $823.53, leaving a balance unpaid on the $1,200 note of $366.47, whereupon the said note was surrendered and a new one given for the last named sum. This last mentioned note Drake turned over to his attorneys, to pay them for defending himself and his wife from threatened litigation.

At the same time there was owing to appellee, on notes and book accounts, about the sum of $1,500, which it seems were sold to the firm of Eace & Co., in payment of an indebtedness to them of $594.64. It therefore appears that out of the assets of the concern Drake effected a payment of preferred creditors to the amount of about $1,600, leaving nearly that amount of debts unpaid.

The question to be decided by the jury was whether this transaction on the part of Drake, acting as general agent of his wife, manifested an honest intent and effort to realize the full value of the assets of the concern for the benefit of appellee’s creditors, or did it manifest an intent upon his part to hinder and delay them by putting the assets beyond their reach. We are not bound to inquire whether or not Wait was an innocent purchaser, as his title to the goods is not in issue in this suit, but simply to inquire if Drake, the husband of appellee, had within two years next preceding the commencement of this suit, fraudulently conveyed or assigned the effects of appellee, or a part thereof, so as to hinder or delay her creditors, as provided in the sixth clause of section 1, chap. 11, E. S. 1874.

Without entering upon a minute discussion of the points in the testimony which might be regarded by the jury as badges of such fraudulent intent, we will simply say that, in our opinion, there was enough of it to at least have fairly raised the question upon the trial, and this being so, it is conceded by counsel for appellee that it ought to have gone to the jury. The point of his argument is, that there was no evidence in the case from which the jury could fairly deduce the inference of a fraudulen t intent.

On the trial of the case, appellee was put upon the stand as a witness for appellants. In order to charge her with a knowledge of the sale to Wait, she was asked certain questions intended to draw out the facts that she had derived certain information concerning the sale from her husband, and that she had given him certain directions in regard to it. All this evidence was excluded by the court, upon objections being made by her counsel. As at present advised, we can see no objection to this line of inquiry. She was being examined with reference to her own business transactions, in which it was alleged her husband had acted as her agent. She was not testifying against her husband, and therefore he could not be prejudiced by anything she might say. We do not regard this class of evidence as coming within the exceptions contained in the fifth section, chap. 51, B. S. 1874. But since counsel for appellants failed to follow up their questions with an offer as to what they expected to prove by sucli questions, we are unable, except in one instance, to see their materiality. We would not, therefore, be inclined to reverse the judgment for that cause. But for the error in withdrawing the evidence from the jury, the judgment will be reversed and the cause remanded.

Beversed and remanded.


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    Isaac C. Brown et al. v. Isaiah Thomas.
    1. Contbact — Lien—Estoppel.—Appellee agreed to furnish A with msrchandise, and A promised that appellee should be paid the first money received from A’s crop. There was no contract whatever that appellee should have a lien upon or any interest in the crop. Subsequently, appellant Brown leased the farm to A, who was his son-in-law, and furnished him the necessary expenses to carry on the farm. Held, that appellant could secure himself upon the crop for such advances by provisions in the lease, if made in good faith, or by pledge or mortgage subsequently made, for the arrangement between appellee and A would not deprive appellant of the right to secure payment of his advances, if by the use of greater diligence he could procure the first lien. And the fact that, after appellant leased the premises, he gave appellee an assurance or verbal guaranty that appellee should be paid, would not work an estoppel hipáis.

    2. Instructions — Bill on sale — Possession.—The third instruction is misleading, in that the plain inference to be drawn from it is, that although there may have been no delivery of the com under the bill of sale to appellee, yet as to all persons except subsequent purchasers the title would pass. If appellant, at the time of the execution of the bill of sale to appellee, was in possession of the property by a valid pledge or under a chattel mortgage, although it had neither been acknowledged nor recorded, and continued m such possession after the making of said bill of sale, he could not be regarded as a subsequent purchaser, and yet his lien would be protected by his possession. The instruction, therefore, fails to make a proper exception as to appellant, if he occupied either of the positions indicated.
    Appeal from the Circuit Court of Logan county; the Hon. C. Epler, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. M. D. Beechek and Messrs. Blikn & Hoblit, for appellant;
    as to estoppel in pais, cited The People v. Brown, 67 Ill. 435; Bigelow on Estoppel, 60; Hefner v. Vandolah, 57 Ill. 520.
    Messrs. Beach & Hodnett, for appellee;
    cited Simpson v. Pearson, 31 Ind. 1; Horn v. Cole, 51 N. H. 287.
   McCulloch, P. J.

On the first day of January, 1882, appellant, Isaac C. Brown, leased certain premises to his son-in-law, David B. Yale, for farming purposes, to hold for the term of one year from that date; said Yale as rent for the same, was to deliver to said Brown, in the crib, one half of all the corn grown on the land and one half of all other crops. It was further stipulated in said lease-that no part of said crops should be sold or removed from the said premises until the rents and all moneys advanced or loaned, or sureties given or paid by said Brown for the use of said Yale, should be paid, and that the lessee should deliver up the premises to the lessor at the end of the term.

It appears from the evidence that Yale was a man of very little means pecuniarily, and that prior to the leasing of the said land, and in anticipation thereof, he had made application to appellee for credit in his store for goods to be paid for after he should have raised his crop. In pursuance of the arrangement'then made, appellee sold goods to Yale to the amount of $435.

When the crop had matured it was put into the cribs belonging to Brown, on the same farm, but not on the same ground leased to Yrale, after which a measurement and estimate of the number of bushels of corn raised on the land was had between Brown and Yale, but no division of the corn was actually made. Nor does the evidence show clearly that there was any other agreement between them than that contained in the lease, that the grain so placed in the cribs should be held by Brown in pledge for the payment of money advanced to Yale as provided for in the lease.

On the 16th day of January, 1883, said Yale executed to appellee a bill of sale, in substance as follows:

“ I have this day sold and delivered to Isaiah Thomas, one crib of corn containing fifteen hundred and eighty bushels, more or less; the exact amount of bushels is to be determined when the corn is shelled and weighed. The crib containing said corn is the north plank crib, and is situated near the south west corner of the north west quarter of section thirty-one (31), town twenty-two (22), range four (4) west, county of Logan, State of Illinois, on the farm and near the residence of Isaac 0. Brown. The said Isaiah Thomas is to pay the said David B. Yale forty-five cents per bushel for said corn as follows: Four hundred and thirty-five dollars on merchandise account due said Thomas from said Yale, and the balance when said corn is shelled and weighed.” At the same time there was an understanding between Yale and Thomas°that the latter was not to haul the corn until the May following. In the meantime by permission of Thomas, Yale took one hundred and fifty bushels of said corn and with it went to Dakota to reside.

There is some evidence tending to show that when Brown learned of this bill of sale to Thomas, he undertook to foreclose a chattel mortgage which Yale had given him on the corn, and for this purpose nominally placed one William Caruthers in possession, who advertised the same for sale under the chattel mortgage.

At this stage of the business, appellee sued out the writ of replevin in this case 'against Brown and Caruthers for the corn in the north plank crib, as described in the bill of sale, under which writ the corn was seized.

On the trial of the case it was contended that appellant Brown had given appellee such assurances, during the time the latter was furnishing goods to Yale, that he should receive his pay for the same out of the crop, as to estop Brown from setting up a superior title thereto to that of appellee.

The court at the request of appellee gave to the jury the following among other instructions:

First. If you believe from the evidence that the defendant, Brown, and his son-in-law, Yale, agreed that the crop raised by Yale in 1882 should pay the plaintiff for the provisions that he, Yale, should get from the plaintiff while he was raising the crop, and that Yale so informed the plaintiff, and that plaintiff thereupon went and saw Brown, and that Brown, either directly or indirectly, intentionally induced the plaintiff to believe that such was the agreement, with a view of getting plaintiff to furnish Yale the provisions, and that by reason of such inducements plaintiff advanced the provisions to Yale, then you are instructed that Brown could not be heard to say that he was not to be paid out of such crop for such provisions; and if in pursuance of such agreement, said Yale, by written bill of sale, sold and delivered the corn in controversy to the plaintiff in payment of said debt for provisions, and that thereafter the defendants took possession of such corn, claiming the same under a chattel mortgage and advertised the same for sale, and that thereupon the plaintiff brought this suit, then you should find the issues for the plaintiff.

There are two fatal objections to this instruction, according to our understanding of the testimony; first, in that it does not appear that any agreement existed between Brown and Yale on ; the one part, and appellee of the other, that the crop raised by Yale in 1882 should pay appellee for the provisions Yale should get from him while raising the crop. Secondly, the evidence is not sufficient to create an estoppel against Brown claiming the corn.

The evidence upon which this instruction was predicated is substantially as follows: Appellee testified: I had an arrangement with Mr. Yale about furnishing him means of support; he came to me in September, before he raised his corn, and said he was going to raise a crop of corn, and wanted me to furnish his family with supplies during the time he was raising a crop/ as he was a son-in-law of Brown’s, I supposed it would be all straight; he said if I would furnish him goods, I can arrange about the ground”; he said it would help him out; I told him I would certainly let him have the goods, but if he raised a crop of corn, I must have my pay; be replied, “You shall have the first money that comes out of the corn.” While I was furnishing these provisions to Brown’s son-in-law, I spoke to Brown about it; he did not say he would pay me, but he did say “you shall have your money.” I furnished these supplies to Yale in good faith on that crop of corn he was raising. I had another talk with Yale after the one last named, and he told me he would pay me as soon as he gathered the corn crop.

McCallister testified on behalf of appellee as follows:- “ Mr. Yale has gone to Dakota. I had some conversation with Mr. Brown while Yale was raising his crop of corn. Brown said he wanted Yale to farm his land. It was good fertile land, and wanted him to raise a crop, and Thomas had kindly promised to furnish Yale supplies for his family, the land being good. He thought Yale could. pay Thomas and some other debts; that he would pay Thomas if any one; was to pay Thomas out of his crops. I think Mr. Brown told me this in the spring of 1882, before the crop was planted.”

Hewkirk testified on behalf of appellee as follows: “I am acquainted with Brown. I had a talk with him about his son-in-law running his place. He said it gave his son-in-law employment, and that Mr. Thomas had agreed to carry him during the time he was raising his crop and take his pay out of the corn and that Thomas was a good man to offer to help him, and if he could not pay him, he would. I think this conversation was in the fall of 1881, about the time of fall plowing, long before any crop was planted.”

According to this testimony appellee seems to have had two reasons for giving credit to Yale; first, the fact that be was Brown’s son-in-law. Secondly, that Yale promised be should have his pay out of the first money that should come out of the corn. There was no contract whatever that he should have a lien upon or any interest in the corn. It was a simple giving of credit upon his prospects of raising a crop, such as many farmers in straitened circumstances are obliged to ask for and receive. Appellee knew, and so did Brown, that Yale had nothing to pay with unless he should succeed in raising a crop. This agreement for credit was made befoi’e Brown had leased the land to Y ale. But the crop could not be raised without money to pay the necessary expenses of carrying on the farm. This, Brown agreed to and did furnish. We see no reason why he could not secure himself for such money by provision in the lease, if made in good faith, or even if not secured by the lease, why he could not be secured by pledge or mortgage subsequently made. His language used to appellee can amount to no more than an assurance or a verbal guaranty that appellee should be paid, but they certainly did not mean that Brown had no right to purchase the corn, or to take a mortgage upon it, or receive it in pledge as security for money advanced to pay the expenses of raising it. The terms of the arrangement as testified to by appellee are not that he should have a lien upon the crop, but that he should be paid out of the first money received for it. This plainly implies that Yale was to be at liberty to sell the corn and pay appellee out of the proceeds. This certainly did not deprive Brown of the right to secure- payment of Ms advances, if by the use of greater diligence he could procure the first lien. The elements of an estoppel in pais are wholly wanting. »

The court also gave the following instruction for appellee:

Second. The court instructs the jury, that “if you believe from the preponderance of the evidence, that there was an understanding and agreement between the defendant, Brown, and his son-in-law, Yale, that Tale should raise a crop of corn on the land of Brown in the year 1882, and that Yale was to get his provisions for his family from the plaintiff while the crop was being raised, and that he" was to be paid for such provisions out of the crop raised by Yale, and that Yale so informed the plaintiff, and that the plaintiff, relying thereon, advanced to Yale the provisions for himself and family during the raising of the crop; and that after the crop was raised, said Yale, in pursuance of such agreement, sold to the plaintiff, by written bill of sale, the crop in controversy, and then delivered the same to the plaintiff, with Brown’s consent, in payment of such indebtedness; and if you further believe that Brown afterward placed a chattel mortgage in the hands of the defendant, Caruthers, with instructions that said Caruthers should take possession of such corn and sell the same, and that defendant, Caruthers, did take possession of said corn, under said mortgage, and advertise the same for sale, and that thereupon plaintiff brought this suit, then you should find the issues herein for the plaintiff.”

This instruction is faulty in that it is uncertain whether it means that Yale should have delivered the corn itself or only the bill of sale to appellee, with the consent of Brown. Ye fail to see any evidence to support it in either view. The corn certainly never was delivered to appellee, for it was in possession of Brown, on his own farm and in his own crib, from the time it was gathered until the suing out of the writ of replevin in this case. ÍTor is there any evidence that Brown ever consented to Yale’s executing and delivering the bill of sale to appellee in payment of the debt, but on the contrary, the testimony shows that Brown never knew anything about the bill of sale until a short time before the commencement of this suit. The instruction also wholly ignores the question as to whether or not Brown had received possession of the corn in pledge for the payment of his claim.

The court also gave the following instruction for appellee: “ The court instructs the jury that the contract offered in evidence by the plaintiff, as between Yale and Thomas, would be sufficient to pass the title of the corn in controversy to Thomas, and no other or further delivery would be necessary to pass the title of David B. Yale in the corn to Isaiah Thomas; but such contract of sale without delivery of the possession of the corn would not be valid and sufficient as against subsequent purchasers.” The plain inference to be drawn from this instruction is, that although there may have been no delivery of the corn, yet, as to all persons except subsequent purchasers the title would pass. If Brown was at the time of the execution of the bill of sale to Thomas in possession of the corn by virtue of a valid pledge or under a chattel mortgage,-although it had neither been acknowledged nor recorded, and continued in such possession after the making of said bill of sale, he could not be regarded as a subsequent purchaser, and yet his lien would be protected by his possession. This instruction, therefore, fails to make a proper exception as to appellant, if he occupied either of the positions indicated. It was therefore misleading, and ought not to have been given.

For these reasons the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Hulda Purvis v. Isabelle Standifer.
    Pbactice — Motion to continue cause. — Where a motion was made to continue a cause to make application to the coui-t below to amend the bill of exceptions by adding the seal of the judge, and by incorporating matter which had been inadvertently omitted. Held, that the motion comes too late, as the defects in the record of the court below were apparent ever since it was certified ,o hy the clerk, and it was the duty of appellant’s counsel, if he had desired to have the record amended, to have made his motion before the cause had been submitted.
    Appeal from the County Court of Moultrie county; the Hon. J. Meeker, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. W. H. Shinn, for appellant.
    Messrs. Eden & Clark and Mr. S. M. Smyser, for appellee.

      Two cases.

   Per Curiam.

"When these two cases were reached upon the call of the docket on the fourth day of December, it appearing that errors had been assigned upon the records and briefs filed upon both sides, they were taken under advisement. On the next day, upon application of appellant’s attorney in each case; leave was given to file additional records from the court below. In the second of the above entitled cases such additional record was filed, but it appearing that the new matter certified by the clerk does not constitute a part of the record, we have stricken the same from the files.

A motion is now made to continue the causes, to enable appellants to make application to the court below to amend the bill of exceptions in each case, by adding the seal of the judge and by incorporating matter which has been inadvertently omitted therefrom.

This application, if it, had been made in time, might have met with our favorable consideration ; but the defects in the record of the court below have been apparent ever since it was first certified to by the clerk, and if appellant’s counsel had desired to have it amended he should have made his motion before the cause had been submitted. We are of opinion the motions made at this late day came entirely too late, and they will be overruled.


author: Pee Cubiam.

text:
    Hardin Myers v. A. H. Antrim.
    1. Bill 'ow exceptions — Amendments.—When once a bill of exceptions becomes a part of the records of the court, the only way in which it can he amended is by an order made in open court, after notice to the parties in interest.
    2. Amendments — What necessaby to state. — In making amendments, the court must of necessity find in what particulars the bill of exceptions fails to correctly state the facts as they transpired on the trial of the cause, and when a correction is ordered, the record should clearly state the amendment intended. Where the order found no facts to justify an amendment, nor did it indicate what amendment was made or intended by the court should be made. Held, that it did not justify the judge in amending the bill of exceptions according to his recollection of what transpired on the hearing of the cause at the trial term.
    Appeal from the County Court of Moultrie county; the Hon. J. Meekeb, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. W. Gf. Cochean and Mr. W. H. Shinn, for appellant.
    Messrs. Eden & Clabk, for appellee.
   Pee Cubiam.

This cause was tried at the August term, 1883, of the Moultrie County Court, resulting in a judgment against appellant. By the order of the court, the bill of exceptions was to be signed and filed within thirty days. Within the time fixed by the order, the judge signed and filed what purported to be a bill of exceptions, and the same is copied into the transcript and certified by the clerk to this court as a part of the record in the case. The case was taken on call on the 4th day of December, and on the 11th it was discovered that the bill of exceptions, as copied into the record, was not under the seal of the judge who signed it, nor did it show that any exceptions were taken by appellant to the rulings of the court below, and thereupon appellant entered a motion to continue said cause until the next term of this court, to enable him to apply to the court to amend the record of said bill of exceptions; and this motion was held under advisement until the present time, to allow a term of the Houltrie County Court to intervene so as to enable appellant to apply to that court for such amendment. Appellant now presents to this court what purports to be an amended record, and asks leave to file the same, which application is resisted by appellee. On inspection it appears by the amended record that on the 14th day of the present month (January) an order was made and entered of record in the trial court, reciting the appearance of the parties, a motion by appellant to amend the bill of exceptions, the finding of the court that the same was incomplete and ordering that the same be amended. Neither the motion nor the finding of the court showed in what respect the bill of exceptions was incomplete, nor was it stated in the order what amendment was made. Eight days after the order was made the judge of the county court signed, sealed and filed in said court an entire new bill of exceptions, essentially different from the orginal bill filed at the trial term.

The first bill of exceptions signed and filed at the August term became thereby a part of the records of the court, and the judge who signed it had no more right than any other person to alter or change it. When once a bill of exceptions becomes a part of the records of the court, the only way in which it can be amended is by an order made in open court, after notice to the parties in interest. The act of allowing the amendment is a judicial act which should be based upon the evidence heard by the court. This evidence may consist of the minutes of the judge made at the trial of the cause, the records of the court, or any other legal evidence which will enable the court to determine what amendment, if any, is needed to make the record speak the truth. Upon questions of fact, such as whether or not particular evidence was heard, instructions given or refused, or exceptions taken on the former trial, the parties to be affected by the findings of the court are entitled to be heard. In making amendments the court must of necessity find in what particulars the bill of exceptions fails to correctly state the facts as they transpired on the trial of the cause, and when a correction is ordered the record should clearly state the amendment intended. The order in this case finds no facts to justify an amendment, nor does it indicate what amendment was made or intended by the court should be made. It did not therefore justify the judge in subsequently amending the bill of exceptions, according to his recollections of what transpired on the hearing of the cause at the August term.

The leave asked to file the amended record is denied.

No exceptions having been taken and preserved in the record to the rulings of the trial court, and the bill' of exceptions being without a seal, the judgment is affirmed.

Affirmed.


text:
    William H. Grindol v. William S. Ruby.
    1. Laches — Equitable belief. — Where the payment of a judgment was available as a defense in a suit at law, and would, if proved, have constituted a complete defense to a suit against a party, and such party neglected his defense and suffered judgment to go by default, he would be barred from setting up the same facts as a ground of equitable relief.
    2. Where maker of note dies — Rights of surety and holder. —Where the maker of a note dies, the holder of the note may proceed against the surety within the two years (Ch. 182, § 8, R. S. 1874), and collect the debt from him without probating the claim against the estate of the principal. If then the surety would protect himself, the way is open to him to pay off the debt and take out letters of administration in his own name upon the estate of the principal. Where both parties have an equal opportunity to administer upon the estate, equity will not hold the creditor responsible for not doing so for the protcetion of the surety.
    Appeal from the Circuit Court of Piatt county; the Hon. O. B. Smith, Judge, presiding.
    Opinion filed February 8, 1884.

      Mr. William E. Nelson, for appellant;
    that equity will not interpose and give relief in a case where the remedy is complete and adequate at law, cited Douglas v. Martin, 108 Ill. 28.
    Mr. I. A. Buckingham, for appellee;
    cited Brandt on Suretyship and Guaranty, § 211; White v. Walker, 31 Ill. 435.
   McCulloch, P. J.

This was a bill in chancery brought by appellee against appellant to enjoin the collection of a judgment rendered by a justice of the peace. The bill alleges that some time in the year 1877, appellee became security for one E. A. Boberts, upon a note payable to the firm of Penniwell & Grindol, of which firm appellant is the surviving partner; that on the 4th day of March, 1878, judgment was rendered in favor of the payees against Boberts alone, before a justice of the peace; that on the 20th day of September, 1878, a sci. fa. issued upon said judgment to make appellee a party to the same, and judgment was rendered against him on the 26th day of the same month; that after the rendition of said judgment and about January 1, 1879, and more than two years before the filing of the bill in this case, said E. A. Boberts died intestate,. leaving ample property to pay her debts, and that during said two years said judgment might have been made from her estate, but that the same had not been presented in the county court; that Penniwell, before his death, received property from the estate of Boberts in discharge of said judgment, but neglected to enter satisfaction thereof; that appellant had caused execution to issue thereon which was about to be levied upon appellee’s property; and then the bill prays for an injunction against the collection of the said judgment.

The court found that Penniwell had received property in satisfaction of said judgment, and thereupon rendered a decree making the injunction perpetual. From this decree appellant prosecutes an áppeal to this court.

After a careful examination of the evidence we are satisfied it does not support the finding of the court. But even if this were not so, the fact so found could avail appellee nothing as a ground of equitable relief. The proof shows conclusively that the death of said E. A. Roberts occurred on the 3d day of August, 1878. This was after the judgment had been rendered against her, and before the sci. fa. had been sued out against appellee. It also appears from appellee’s own testimony that the satisfaction of the judgment, if any such had taken place, occurred after the death of Mrs. Roberts and before the scire facias had been sued out against him. This payment of the judgment, as now contended for, was therefore available in the suit at law, and would, if proved, have constituted a complete defense to the suit against him. But he neglected his defense and suffered judgment to go by default. This bars him from setting the same facts up as a ground of equitable relief.

A second ground of relief set up in the bill is, that appellant having for more than two years after the death of Mrs. Roberts failed to have the judgment against her probated'in the county court, the surety is discharged by virtue of Chap. 132, § 3, R. Í3. 1874. The facts in proof appear somewhat different from the allegations in the bill in the important particular that the bill alleges the note had been reduced to a judgment against both principal and surety before the death of the former, whereas the proof shows that the judgment was not rendered against the surety until after her death. We are not therefore called upon to express any opinion as to what the effect of this statute would be upon the facts alleged, but will confine ourselves wholly to the case made by the proof. The statute referred to provides, in effect, that where the principal maker of a note shall die, if the creditor shall not within two years after the granting of administration, present the same to the proper court for allowance, the surety shall be released to the extent that the same might have been collected of such estate if presented in proper time.

Before the enactment of this statute it was the law that where the principal maker of a note died, the neglect of the holder to present the same against his estate until the surety had lost his remedy against the estate, did not discharge the surety. In such case it was the duty of the surety to see that the note was paid, and having paid it himself he had a rem edy over against the estate of his principal. Villars v. Palmer, 67 Ill. 204. This statute will not permit the holder to lie by until the surety shall have lost all remedy against the estate of his principal and then endeavor to compel the surety to pay the debt. If he does so the surety is discharged.

But this is not all of this section of the statute. It further provides that it shall not be so construed as to prevent the holder from proceeding against the surety within the two years. This is just what appellant did. He had a right to sue appellee upon the note within the two years and collect it if he could. Having brought such suit we are unable to see what effect this statute can have upon the case. The meaning of it appears to be that if the holder fails to present the claim against the estate within two years after the granting of administration, and further fails to bring suit against the surety, within the two years, his right of action against the latter is barred; but if he commences suit against the surety within such two years, his action is not barred. The commencement of such suit is therefore a notification to the surety to seek his remedy against the estate of his principal, by paying the debt and filing his claim against the estate, or to be forever barred from so doing. If he fails to do so the remedy of the creditor against both principal and surety is preserved. This is just and equitable. If the surety fails to pay the debt and thereby entitle himself to indemnity out of his principal’s estate, he is in no position to complain of the laches of the creditor in not doing the same thing.

In this case it appears from the evidence that administration has never yet been granted upon the estate of Mrs. Boberts, and therefore, if we give the statute a literal interpretation, the bar thereby created has not yet taken place. But it is claimed that it was the' duty of appellant to have administered upon the estate as a creditor and by that means to have collected the debt. It might be a sufficient answer to this position to say the statute does not so provide, and there being no common law requirement to that effect appellant was under no such duty. But perhaps a better answer would be, that the statute above quoted expressly provides that the holder of the note may proceed against the surety within the two years, and, as we construe it, collect the debt from him without probating the claim against the estate of the principal. If, then, the surety would protect himself, the way is open to him to pay off the debt and take out letters of administration in his own name upon the estate of the principal. "Where both parties have an equal opportunity to administer upon the estate, equity will not hold the creditor responsible for not doing so for the protection of the surety.

We are therefore wholly unable to see any possible grounds appellee has' for any relief in a court of equity. The decree of the court below will therefore be reversed and the cause remanded, with directions to the circuit court to dismiss the bill.

Reversed and remanded.


text:
    David Haddix v. Frederick Einstman.
    1. Bailment — Trover—Demand.—Appellant offered to sell certain grain to one W., agent of appellee, but failing to agree as to the price, a contract of storage was made and W., at the time of delivery, instead of storing all the grain, had the larger part mixed with appellee’s grain and shipped to appellee, and the balance, on appellee’s order, shipped elsewhere. A sale of the grain had not taken place, as the right of election was never exercised by W. Held, that an action of trover will lie against appellee, and as there was an actual conversion of the property by the bailee, no demand is necessary before bringing suit.
    2. Willful or corrupt act not necessary to bender party liable. — In trover the innocent purchaser of stolen goods becomes responsible for their value to the real owner. It needs no willful or corrupt act to render a party liable in this form of action.
    Appeal from tlie County Court of Morgan county; the Hon. M. T. Layman, Judge, presiding.
    Opinion filed February 8, 1884.
    Messrs. Morrison & Whitlock, for appellant;
    cited Story on Agency, §§ 14, 55, 56, 58, 131; Wharton on Agency, §130; Searing v. Butler, 69 Ill. 575; Ward v. Williams, 26 Ill. 451; Williams v. Merritt, 23 Ill. 625; Foster v. Rockwell, 104 Mass. 167.
    A purchaser, in good faith, of stolen property is liable in trover: Sharp v. Parks. 48 Ill. 511; Newkirk v. Dalton, 17 Ill. 413.
    Where the proof shows a sale of the property, or any other actual conversion, a demand is not necessary: Howitt v. Estelle, 92 Ill. 218; 1 Chitty on Pl. 177, 6th Am. ed.
    Mr. George W. Smith and Mr. Owen P. Thompson, for appellee;
    that where the specific thing delivered is not to be returned, the contract is one of sale, cited Grier v. Stout, 2 Bradwell, 602; Richardson v. Olmstead, 74 Ill. 213; Lonergan v. Stewart, 55 Ill. 45; Story on Bailments, §§ 283, 439; Chase v. Washburne, 1 Ohio, 244.
   McCulloch, P. J.

This was an action of trover brought

by appellant against appellee to recover the value of a quantity of wheat. It appears from the evidence that appellee was engaged in the business of buying and shipping grain at a place called Lowder, where he had a warehouse. His business at that point was under the care and management of his agent, Warner. Appellant and Warner both testify that in the month of August, 1881, appellant offered to sell his wheat to Warner for one dollar per bushel, but the latter offered him only ninety cents. It was then agreed that the grain should be stored for one month without charge, and after that appellant should pay one cent per bushel per month for storage. At the same time Warner was storing wheat for other farmers in appellee’s warehouse and putting the same in separate bins.

Appellant’s wheat was delivered by his tenant wdio had raised the same, appellant not being present at the time of delivery.

At the time of delivery, instead of storing all the grain, Warner had the larger part thereof put on board the cars and mixed with other grain of appellee, and at once shipped the same to appellee at Toledo, Ohio; and afterward the balance was, on appellee’s order, shipped to Batty Brothers at Waverly.

If these witnesses tell the truth, and we see no reason to doubt their veracity, the contract was one of simple bailment. In this respect it differs very widely from the case of Grier v. Stout, 2 Bradwell, 602, and kindred cases cited by appellee’s counsel. There, there was no expectation that the identical grain was to be returned. Here, on the contrary, the contract of storage has nothing in it, so far as we can see, from which it can be even remotely inferred that appellant intended to part with his ownership in the grain. It is true he testifies Warner was to have the right at any time to take the wheat at one dollar per bushel, or to sell it for that price. But that right of election was never exercised by Warner, and so the sale never took place.

The evidence seems to us very clear, therefore, that appellee has converted appellant’s wheat to his own use without paying for it, and this without appellant’s consent. This constitutes the tort for which the action of trover will lie. And where there’ has been an actual conversion of the properly by the bailee, no demand is necessary before bringing suit. We therefore think appellant’s light of action was clearly made out. Howitt v. Estelle, 92 Ill. 218.

The view taken of the case by the court below seems to have been that appellee could not be held liable for the acts of Warner, unless they came within the scope of his agency in carrying on the business of appellee, or unless they were subsequently ratified by appellee with full knowledge of all the facts. If, therefore, Warner had no authority from appellee to receive the wheat in store, then appellee would not be responsible for Warner’s wrongful conversion of it, unless appellee subsequently ratified his acts. In accordance with this view the court instructed the jury that, unless Warner had authority from appellee to take the wheat on deposit as a warehouseman, they should find for the defendant. By the second instruction for appellee, the jury were told, in effect, that if Warner took the wheat on deposit without authority of appellee, and cpnvertéd it, or a part of it, to his own use or for the use of appellee, then appellee was not responsible for the same in this form of action, unless appellee ratified the act of Warner after full knowledge of all the facts of the case. The same idea pervades all the other instructions given for appellee. This view of the law in its application to the proof in this case is a total misconception. Had Warner, without the knowledge or consent of appellee, received the grain in store, and then converted it to his own use, or sold it to some third party and failed to account for the money, the question of authority and ratification might have been presented. But in this case appellee himself got the wheat and converted it to his own use. Warner was his agent, through whose hands he appellant’s grain. It matters not how innocently he may have acted. He received the grain which belonged to appellant and converted it. He neither bought it of appellant nor did either he or Warner sell it in pursuance 'of the contract, as testified to by appellant, but mixed it with his own grain and so rendered it impossible for appellant to regain it. This in itself was a conversion./" It needs no willful or corrupt act to render him liable in this form of action. The action of trover was originally founded upon the fact that the plaintiff had casually lost his goods, and defendant having found them, had converted them to his own use. Hnder this action the innocent purchaser of stolen goods becomes responsible for their value to the real owner. Sharp v. Parks, 48 Ill. 511.

These instructions must have misled the jury, for otherwise they should have found for appellant. For the reasons aforesaid the judgment of the county court will be reversed and the cause remanded.

Reversed and remanded.


author: Casey, J.

text:
    Henry Wlecke v. The People.
    1. Sale and gift of intoxicating liqtjohs. — The sale and gift of intoxicating liquors to a minor, under the statute, are distinct and separate offenses and the proof of one will not sustain a charge for the other.
    2. Ybbdict — Evidence.—Where there were four counts in an indictment and the defendant was found guilty by a jury as charged in the indictment and the judgment and verdict were upon each count in the indictment, and there was no evidence whatever to sustain the fourth count. Held, that the judgment was improper.
    Error to the County Court of Jefferson county; the Hon. William B. Anderson, Judge, presiding.
    Opinion filed October 10, 1883.
    Mr. A. M. Green and Mr. Eobert W. Carpenter, for plaintiff in error;
    that a judgment must be for a sum certain, cited Freeman on Judgments, § 49; Faulk v. Kellums, 54 Ill. 188.
    The giving and selling of intoxicating liquor are two separate and distinct offenses under the Dram Shop Act: Humpeler v. The People, 92 Ill. 400.

      Mr. Waknek U. White, for- defendant in error;
    that the judgment is valid, cited Charlton v. Commonwealth, 5 Met. 532; Cawley v. State, 37 Ala. 152; State v. Mose, 35 Ala. 421; Johnson v. State, 29 Ala. 62; State v. Hooker, 17 Vt. 658; Guild v. Hall, 91 Ill. 223; Townsend v. The People, 3 Scam. 326; Kroer v. The People, 78 Ill. 299; Sahlinger v. The People, 102 Ill. 241.
   Casey, J.

The first three counts in the indictment in this case charged the defendant (appellant here) with selling intoxicating liquor to a minor, in violation of the statute. The fourth and last count in the indictment charged the defendant with giving intoxicating liquor to a minor, in violation of the statute. Upon a trial of the cause in the county court (to which court the indictment had been certified) the defendant was found guilty by a jury as charged in the indictment, judgment entered upon the verdict, and the defendant was fined the sum of twenty dollars on each count in the indictment. Motions for a new trial and in arrest of judgment were made and refused by the court, and exceptions taken to the ruling of the court. As has been said, the judgment and verdict were upon each count, in the indictment. This was clearly erroneous. There is no evidence whatever in the record to sustain the fourth count in the indictment. There is no evidence whatever showing that the defendant gave intoxicating liquor to a minor as charged.

There is proof in the record of the sale of intoxicating liquors to a minor, but the sale and gift of intoxicating liquors to a minor under the statute are distinct and separate offenses, and the proof of one will not sustain á charge for the other. Humpeler v. The People, 92 Ill. 400. For this reason the judgment of the county court must be reversed and the cause remanded.

Reversed and remanded.