text:
    George W. Brenton, Appellee, v. Allen Newlin, Appellant.
    1. Contracts—what essential to recovery for worh done under. “Where work is done under a contract, as was the case here, the plaintiff can only recover therefor when he has fully or substantially performed the conditions precedent to his right of recovery as stated in the contract, or else averred and proved a sufficient excuse for his non-compliance with its conditions.” The pleadings must conform to the case as made by the evidence whether such evidence show full performance or part performance Justified by a valid excuse preventing full performance; likewise, if the contract provide for payment as the work progresses, recovery may he had for part performance under the common counts.
    2. Evidence—when declarations not binding. Declarations made out of the presence of the person sought to be hound thereby and not authorized by such person, are incompetent.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Statement by the Court. In the year 1905, John Colliflower and H. T. Cox, under the partnership name of Colliflower & Cox, had the contract for constructing a levee on the Indiana side of the Wabash river, opposite the village of Hutsonville, Illinois. In July of that year, the appellee began the construction of 1,000 feet of said levee. About the first of September of that year Colliflower & Cox became insolvent, and shortly thereafter were adjudged bankrupts and discharged under the laws of the United States relative to bankruptcy, the claim of $749 of Brenton for his work on the levee being scheduled by said firm as one of their liabilities. Appellee claims that he accepted a verbal contract of appellant by which he was to construct 1,000 linear feet of said levee, and that appellant told him that Colliflower & Cox would show him, appellee, where to work, and that no certain time was fixed in which to complete his contract. Appellee insisted that the terms of his contract were that appellant was to pay him nine cents a yard for every yard he put up if he put up 9,000 feet, and if he put up 1,000 feet he was to have ten cents a yard (a cubic yard), and was to be paid 80 per cent after the first hundred feet was completed, 80 per cent after the second hundred feet was completed, and so on. Appellee claims that he put about 715 linear feet into the levee, and that that amounted to about $749. He never did complete his contract of 1,000 feet, but quit along with all the other levee builders when news of the insolvency of Colliflower & Cox reached the camps. In his suit against appellant, appellee’s amended declaration contained only the common counts for goods, wares and merchandise sold and delivered; for money lent and for money paid out by plaintiff for defendant, and for money received by defendant for plaintiff’s use, and for interest; for the price of work then done and for material provided at defendant’s request; and for divers sums in arrears by the defendant to the plaintiff on an accounting to plaintiff. A bill of particulars was filed by plaintiff by order of the court, and the following is the item in said bill for which recovery was had by appellee, to wit: “Oct. 15, 1905, to building 7490 cubic yards of leveé at ten cents per yard—$749, as per contract with Newlin at his request.” Appellant pleaded non assumpsit, and on a jury trial verdict and judgment were rendered against appellant and in favor of appellee for $749.
    Parker & Eagleton, for appellant.
    P. B. May and P. G. Bradbury, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

It is urged on this appeal by appellant that there is no sufficient declaration in this case to support the judgment of the lower court. The only possible theory of recovery by appellee for the full amount of his claim at ten cents per cubic yard, under the pleadings in the case, and the hill of particulars, is that he fully complied with all of the terms of his contract. He did not complete his contract, according to his own evidence. He swears that he contracted to build 1,000 linear feet of the levee at ten cents per cubic yard, and that he was not to receive ten cents per cubic yard unless he completed as much as 1,000 feet of the levee. He only claims to have completed about 715 feet of the levee, while one of his witnesses states that he only completed 300 feet. He also states that he was only to be paid eighty per cent of the contract price for each section of 100 feet of completed levee until the entire contract was completed, as we understand Ms evidence. The only theory upon which he could be permitted to recover ten cents per cubic yard for building less than 1,000 linear feet of levee, under the contract as claimed by him, would be by averring and proving a sufficient excuse for his failure to complete a thousand feet of levee, as he had contracted to do. He does not pretend that the defendant ever gave him any cause for quitting the work prior to, or on, the day he did quit it. He places all of Newlin’s refusals to pay him for his work after he had quit the work. If he had proved that Newlin ordered Mm to quit the work or prevented him from performing the entire contract, a recovery could not be had at ten cents per cubic yard, under his declaration and his evidence, for the portion of the levee completed by Mm. He should in such case have declared upon the contract averring his part performance and stating an excuse for not completing the contract. Without such a declaration evidence that the defendant prevented his performance of an express contract is unavailing, and is not properly admitted. “Where work is done under a contract, as was the case here, the plaintiff can only recover therefor when he has fully or substantially performed the conditions precedent to his right of recovery as stated in the contract, or else averred and proved a sufficient excuse for his non-compliance with its conditions.” City of Peoria v. Construction Co., 169 Ill. 36; Parmly v. Farrar, 169 Ill. 606; Hart v. Carsley Mfg. Co., 221 Ill. 444.

It is not possible to sustain the whole of the court’s judgment, even upon the evidence of appellee. However, if his contract was to the effect that he was to build 1,000 linear feet of levee at ten cents per cubic yard, and was to be paid eighty per cent of the contract price for each completed section of 100 feet, in such case he could recover under the common counts eighty per cent only of the contract price for every such completed section, although the contract was not fully completed. Mt. Hope Cemetery Association v. Weidenmann, 139 Ill. 67. “Where the parties have made an express contract, no contract will be implied, and the action must be upon the express contract, and the recovery under its terms; and no recovery on the quantum meruit is authorized or can be sustained.” Illingsworth v. Slosson, 19 Ill. App. 612.

The court in its instructions to the jury did not follow the foregoing principles of law. These instructions tell the jury in substance that if they believed from the evidence that the defendant employed plaintiff to build a portion of the levee and agreed to pay him a certain stipulated price per yard, that then their verdict should be for the plaintiff for such sum as the work completed by him amounted to at such price. In another instruction the jury were told that if no price was agreed upon by the parties that then the plaintiff should recover whatever sum the evidence shows such work to have been reasonably worth. These instructions were not applicable to the pleadings or the evidence in the case, and were erroneous and misleading to the jury. There was no quantum meruit count in the declaration, and no evidence upon which to base it. The plaintiff, if entitled to recover at all, was only entitled to recover according to the terms of his contract as above explained, and the jury should have been so informed by proper instructions. The defendant in this case denied that he made any kind of a contract with the plaintiff to build this levee; but only. advised the plaintiff at his solicitation that plaintiff could earn more, or do better by talcing a contract on the levee with Colliflower and Cox, than he would by raising a corn crop for that year. We do not desire to discuss the evidence on its merits. The plaintiff introduced evidence tending to prove a right of recovery, and we cannot in such case reverse the case without remanding it for a new trial. We are of the opinion, however, that the verdict of the jury is manifestly against the weight of the evidence and in such case it would be our duty to reverse and remand the cause, if no other reason therefor appeared in the record. Donelson v. E. St. L. Ry. Co., 235 Ill. 625.

The court also erred in admitting the declaration of Mr. Bays to the effect that Allen Newlin was the man for the creditors of Colliflower and Cox to look to for pay for .their work. Mr. Bays was the attorney for appellee, was not authorized by Mr. Newlin to make such a statement, and such declaration was not made in the presence of Newlin, so far as the evidence shows.

For the errors above indicated the judgment of the lower court is reversed and the cause remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Robert W. Troxell, Appellant, v. County of Union, Appellee.
    1. Pleading—what essential to affirm action of court in sustaining demurrer to declaration. If a demurrer is sustained to an entire declaration the action of the court in that regard in order to he affirmed must he approved as to each and every count composing the declaration.
    2. Pees and salaries—common law doctrine as to liability of county for witness fees. In the absence of a statutory provision to the contrary, the rule in this state is that no county is liable for witness fees in a criminal case, no matter whether the state or the defendant wins the suit.
    3. Pees and salaries—section J/7 of act construed. A foreign witness is entitled under this statute to his fees, whether sworn or not, if his evidence would have been material, and if his fees are proper and reasonable, when he has complied with the statute in the matter of making and tendering his affidavit as to such claim. Such a witness is not bound by the arbitrary and wrongful refusal of the judge to make the certificate provided for by the statute, nor is he bound by the erroneous decision of the judge with respect to such matter. If the judge refuses to rule and rules erroneously, his remedy is by action against the county and not by mandamus or appeal. If, however, the judge and the clerk make the certificates provided for by statute in favor of the allowance, the county treasurer is authorized to recognize the claim; but the certificate of the judge is not absolutely binding and conclusive as against the county.
    4. Statutory law—construction of provisos. The rule of construction as to provisos in statutes is that where they follow and restrict an enacting clause general in its scope and language, they are to be strictly construed and limited to the objects fairly within their terms. They should not be so construed as entirely to defeat the provisions of the enacting clause.
    Action of debt. Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Statement by the Court. Robert W. Troxell, appellant, brought this action of debt against the County of Union to recover certain witness fees alleged to be due him as a foreign witness in seven criminal cases theretofore disposed of in the County Court of said county. A demurrer was filed by appellee to the declaration in which was set forth as special grounds of demurrer, that the declaration shows that the affidavit of plaintiff claiming such fees as a foreign witness was never certified to by the trial judge as is provided by statute. The court sustained this demurrer and, appellant electing to stand by his declaration, judgment was rendered against him and in favor of the appellee.
    The declaration charges in substance in every one of the different counts, that the defendant is indebted to plaintiff in the sum of $26.30 for his actual appearance in said court in obedience to subpoenas issued out of said court at the request of the state’s attorney of said county, and served upon him at his residence in Springfield, Illinois, commanding him to appear as a witness in seven cases in said comity; that said causes were criminal prosecutions brought against seven separate and different defendants for selling liquor in no-license territory; that plaintiff attended said court four days as a witness in said causes in obedience to said subpoenas and was then excused from further attendance therein by the state’s attorney; that plaintiff necessarily traveled in going to, and returning from, said court a distance of 446 miles, which was the shortest, most direct, and usually traveled route; that after being discharged as aforesaid, he made and filed with the clerk of said court, his affidavit, setting forth the said distance traveled, that it was the usually traveled and most direct route, and the number of days’ actual attendance in said court, and that such attendance was at the instance of the state’s attorney. Further avers that plaintiff was a material witness in said cases, that said amounts claimed by him as mileage and per diem as a foreign witness were reasonable and in compliance with the statute and that the distance traveled by him was the most direct and usually traveled route; that he then and there presented to the presiding judge in said causes, his affidavit of claims and requested said judge to add his certificate that the amounts were reasonable and that the plaintiff was a material witness in said causes. It is further averred in the first, fifth, sixth and seventh counts of the declaration that said judge refused to so certify and still refuses so to do, but on the contrary did then and there hold that said amount was not reasonable, nor any part thereof, and that said plaintiff was not a material witness. And in the second, third and fourth counts of the declaration it is averred that said judge refused to so certify and still refuses so to do, without any good or sufficient reason therefor, arbitrarily, and wrongfully and arbitrarily, etc.
    Charles G. Briggle, T. C. Torrence and James Lingle, for appellant.
    William D. Lyerle, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The said demurrer being sustained as to every one of said seven counts to the declaration, the judgment of the lower court must be sustained, if it is sustained, upon the ground that no ■ one of said several counts presents a good cause of action. In the absence of a statutory provision to the contrary, the rule in this state is that no county is liable for witness fees in a criminal case, no matter whether the State or the defendant wins the suit. O’Kane v. The People, 46 Ill. App. 225. The decision of this case then necessarily depends upon the proper interpretation of that portion of paragraph 47, chapter 53 of our Statutes, entitled, “Fees and Salaries,” which provides as follows: “In criminal cases where a witness shall be required to attend from a foreign county or state, either before the grand jury or at the trial of the cause in the court, he shall he allowed five cents per mile each way in full of all compensation, escept the per diem for actual attendance upon such court or before such grand jury, which shall be one dollar per day for each day’s necessary attendance to be paid out of the county treasury of the county where the crime was committed on the certificate of the clerk of the court where the trial is being' had: Provided, he shall make affidavit of the distance traveled, that it was the usually traveled and most direct route, of the number of days’ actual attendance, and that such attendance was at the instance of the state’s attorney or the accused, or his attorney, to which shall be added the certificate of the judge that the amount is reasonable and that he was a material witness in the court or before the grand jury. ’ ’

It must be conceded that by the demurrer the defendant .admits that the plaintiff has done all that is required of him to do in regard to claiming and collecting his witness fees; and that he has stated a good cause of action, if there can be such a cause stated in any case where the trial judge has wrongfully refused to add his certificate to the plaintiff’s affidavit of claim.' In fact the only objections urged to the declaration by appellee is that it fails to aver that the trial judge’s certificate and the clerk’s certificate are added to appellant’s affidavit as suggested by the statute. The clerk could not be compelled to certify this claim unless the trial judge’s certificate was added; and if the clerk should do so without the judge’s certificate, the county treasurer could not be compelled to pay the same, until some court of competent jurisdiction had rendered a judgment for the claim in favor of appellant and against appellee. The trial judge could not be compelled to add his certificate for any certain amount, nor to certify that the plaintiff was a material witness, because his act in making this certificate is a judicial act as distinguished from a ministerial act, that is to say he acts according to his judgment and not in the matter of a set task where he can only act in accordance with specific and positive directions of a statute and without discretion. Hence, none of the aforesaid officers, nor all of them, could he compelled by mandamus proceedings to give him any proper relief. 19 Am. and Eng. Ency. of Law, 2nd Ed., 780, 785 and 786; The State ex rel. Carraher v. Graves, Judge, 13 Wash. 485.

It is averred in four of said counts that the trial judge did pass on appellant’s claim and held that the amount was not reasonable, nor any part thereof, and that said plaintiff was not a material witness. • So as to these counts there can be no question that mandamus proceedings could not be availing, for while the judge might be compelled by mandamus to decide the question, after deciding it he could not be compelled to change his decision. So those four counts of the declaration must be good counts and not demurrable, if the appellant has any remedy at all, unless he was compelled to appeal from the trial judge’s decision. While the act of the trial judge in refusing the appellant his certificate was a judicial act as distinguished from a mere ministerial act,.yet, it is not a judgment of a court of law in a legal sense and binding on appellant as such. Neither appellant nor the appellee was a party to any one of the criminal suits, and could not appeal from any judgment or order for costs, if one had been made therein. There is no right of appeal given to either of them. Ackerman v. The People, 99 Ill. App. 576; The State v. Fair, 35 Wash. 127.

There is much reason and justice in the idea expressed in this statute, that the burden of the expense of foreign witnesses in criminal cases ought to be borne by the whole people of the county where the crimes are committed, rather than by the foreign witnesses who have to travel long distances, through no fault of themselves, to give evidence as to occurrences out of their neighborhood. If they must bear their expenses in such cases, the burden is necessarily heavier on them than on the very people who are the more benefited and the more interested personally in the result of the prosecutions, the people of the county where the alleged crimes are committed. We are unable to see any cause for alarm by reason of this statute by reason of supposed frauds that might be perpetrated, if parties are allowed to maintain suits of this character where it is charged that the trial judge wrongfully refuses to certify a foreign witness claim, in view of the fact that such cases must be passed on by a jury of men who must bear their portion of the judgments, if the plaintiffs win. We are however much impressed with the claim of the appellee that justice will generally be done in these cases by the trial judges in the matter of the granting or the refusing of these certificates. But it is in this case in various ways very positively averred that the trial judge has wrongfully refused the certificate in this case, and under the rules of pleading this averment must be accepted as true on demurrer, and the question now is, is the appellant bound in this case by the arbitrary or wrongful act of the trial judge in refusing to grant the said certificate 1 The question is one of grave importance. If the appellant is so bound, then the county is also bound thereby; and in any case imaginable, the claimant and the county must be so bound, no matter how great a wrong might be perpetrated against either party. The next time a very great wrong may be done the' county by the trial judge by wrongfully or erroneously allowing a claim that is grossly excessive and fraudulent. In this case as in many others where the judge does not and cannot hear from the mouth of the witness the actual evidence of the witness, he must rely on other information as to the materiality of the evidence, and his certificate must necessarily depend on this information as to its correctness. A foreign witness is entitled under this statute to his fees whether sworn or not, if his evidence would have been material and if his fees are proper and reasonable, when he has complied with the statute in the matter of making and tendering his affidavit as to such claim. A close inspection of the statute convinces us that both the appellant and the appellee are entitled to their day in court, and that they are not bound by the arbitrary and wrongful or the erroneous decision of the trial judge. The plain provision and meaning of the statute is that such fees are to be paid out of the county treasury of the county where the crime was committed on (at the time of) the certificate of the clerk, if the witness shall make the proper affidavit required by the statute, and that the statute then further provides that the judge add his certificate as provided in the statute. We do not regard either the clerk’s or the judge’s certificate as an absolute requirement to the collection of the fees by such witness; but when both certificates are added, the treasurer would be completely exonerated in paying the claim. The rule of construction as to provisos in statutes is that, where they follow and restrict an enacting clause general in its scope and language, they are to be strictly construed and limited to the objects fairly within their terms. They should not he so construed as entirely to defeat the provisions of the enacting clause. Endlich on Interpretation of Statutes, secs. 185 and 186; Sutherland on same, sec. 223; Epps v. Epps, 17 Ill. App. 196.

We have been unable to find any decisions on this statute. The nearest analogous cases to which we have been cited are the following: The State ex rel. Carraher v. Graves, 13 Wash. 485; DeSoto Co. Commrs. v. Howell, 51 Fla. 160.

We think that all of the counts in the declaration state good causes of action, and that the court erred in sustaining the demurrer thereto.

The judgment of the court is reversed and the cause is remanded for further proceedings in accordance herewith.

Reversed and remanded.


text:
    Augustus F. Mugge, Appellee, v. John Erkman et al., Appellants.
    1. Measure of damages—in action for improperly overflowing lands. The true measure of damages in such an action is the fair cash rental value of the land.
    2. Measure of damages—when loss of probable profits may be shown. , Loss of the probable profits of a business is not usually the subject of recovery in an action for damages; yet, where the business is of long standing and such profits are capable of definite proof and are within the contemplation of the parties, past profits for a considerable period may be taken into consideration in some cases by the jury in fixing the damages, and in such cases it is up to the defendant to show that there are other reasons why the profits or damages should be less.
    3. Evidence—what competent to ascertain fair cash value of land. In an action for improperly overflowing lands, where it is proven on the trial that land in the vicinity in question is not customarily rented for cash but for one-third of the matured crop delivered, it is proper to prove the character of the crops previously raised and how much per acre or how much and what crops it would have produced in ordinary seasons under ordinary circumstances, as tending to show the productiveness of the soil and as tending to prove the value of the land. The supposed value of what might have been raised on the land in the year in question had it been cultivated, less the cost of cultivation and marketing, however, is too remote and speculative.
    4. Appeals and errors—when admission of improper evidence will not reverse. Where a case is tried before the court without a jury the admission of improper evidence will not reverse if there appears sufficient proper evidence in the record to sustain the judgment, as the law presumes the trial judge only considered proper evidence.
    5. Watercourses—liability for overflowing lands. The doctrine that the owner of land has a right to drain the same by ditches on such land, discharging the waters thereof into a natural watercourse, is limited by the further doctrine that the natural flow of waters, whether surface or other waters, cannot be diverted from their natural course so as to do injury to another by causing more waters to flow on his land than otherwise would in a state of nature.
    Action in case. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.

      Statement by the Court. August F. Mugge was the owner of the northeast fourth of the southeast quarter of section 17; and William Randolph owned the southeast quarter thereof, while John Erkman owned the forty acres south of and adjoining Randolph’s southwest forty, all in Township 9 South and in Range 7 East of the 3rd P. M., in Saline county. Mugge, appellee, charged in his declaration that in 1908 a portion of his land was overflowed and damaged on account of the wrongful and negligent construction of a certain ditch and embankment by Erkman and Randolph. The defendants filed a plea of not guilty; and, on a trial before the court without a jury, judgment was rendered against defendants and in favor of the plaintiff for eighty dollars damages.
    James R. Williams, Noah C. Bainum and Winfield F. Scott, for appellant.
    Whitley & Somers, for appellee; Choisser, Choisser & Kane, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

The evidence shows that Randolph and Erkman constructed a ditch beginning near Erkman’s south line and a little west of his east line, running thence north to the south line of Randolph’s northwest forty, thence west to a point near the center of the south line of said forty, thence in a northwesterly direction to a point on the line between Randolph and Mugge and near the southeast corner of Mugge’s north twenty, and thence north on Randolph’s land to his northwest corner. The embankment was thrown up on the east side of the ditch. The evidence of a number of appellee’s witnesses tended to prove that this ditch and embankment caused water that fell on Erkman’s forty and Randolph’s south eighty and other lands, to be discharged on Mugge’s land that otherwise would not and could not have reached his said land; and that this increased water shed amounted to sixty acres or more, and that thereby his land was overflowed and damaged so that he could raise no crops on some ten or twelve acres of it in 1908. This evidence was contradicted by a number of witnesses for appellants; but the court has evidently decided this question in favor of the plaintiff, and the preponderance of the evidence seems to support the plaintiff in his contention. The evidence is too voluminous for discussion in detail; and as much the greater number of witnesses support the plaintiff’s contention, we do not feel warranted in disturbing the finding of the court whose province it was to determine upon which side was the greater weight of the evidence. There are two other facts proven in the case that tend to corroborate this claim of the plaintiff. The first is that the ditch was terminated at or near Randolph’s northwest corner without sufficient outlet, thereby causing the waters to be discharged at that corner and on to the east part of Mugge’s north twenty. It was proved that there were overflows there on the west side of this ditch onto Mugge’s land caused by the ditch and embankment on the east side thereof which tended to hold the water and force it west. In the second place it is shown by all the evidence, practically, that the east part of Mugge’s north twenty was higher ground than the west part of Randolph’s north twenty, and that the declivity of the land there for some distance was east and extended some three or four hundred feet in to Randolph’s northwest forty. It appears from the evidence, that the lowest point or waterway there extended from near the center of the south line of this forty and through the same to a point about four hundred feet east of the northwest corner thereof and thence north or northwest. Randolph’s south eighty and Erkman’s forty were very much higher lands than Mugge’s or Randolph’s northwest forty. In view of this evidence we cannot do otherwise than sustain the court in his findings that the plaintiff was damaged as claimed by him.

The court held that the true measure of damages is the fair cash rental value as contended by appellants; but it is insisted by appellants that the court admitted and considered improper .evidence in arriving at the damages, that is, the supposed value of what might have been raised on the land in 1908 had it been cultivated. It was proven on the trial that land in that vicinity was not customarily rented for cash, but for a third of the matured crop delivered, that is, the landlord got a third of the crop gathered and delivered to him by the tenant. The witnesses for this reason were not able to state what the cash rental value of said land was. As bearing on the question of the rental value of the land the conrt permitted the witnesses to tell the character of the crops that had been raised on the farm, how much corn it would ordinarily produce per acre, and the character of the soil generally as to fertility and productiveness. It was proven to be strong, fertile bottom lands, and capable of producing crops of any character raised in that vicinity, and that it had produced good crops for some eighteen or twenty years prior to 1908. We think that it was proper to prove the character of the crops previously raised, and how much per acre, or how much and. what crops it would produce in ordinary seasons under ordinary circumstances, as tending to show the productiveness of the soil and as tending to prove the value of the land. The true measure of damages for improperly overflowing the lands is its fair cash rental value. City of Chicago v. Huenerbein, 85 Ill. 594; K. & S. Ry. Co. v. Horan, 17 Ill. App. 650. The supposed value of what might have been raised on the land in 1908 had it been cultivated, less the cost of cultivation and marketing, would be too remote and speculative as a measure of damages, as held in the above cases. This holding is not equivalent to holding that it is improper to prove what crops had been raised and in what quantities, or what crops and in what quantities could be raised on it in ordinary years, which is evidence of the character and productiveness of the soil. The rental value of the land for 19Ó8, or the damages that plaintiff was entitled to recover, necessarily depended upon all the evidence before the court; and while we do not intend to be understood as holding that the damages of the plaintiff would be the value of any crop of an ordinary year, or a one-third thereof, yet we do hold that such evidence was proper under the circumstances in this case. Loss of the probable profits of a business is not usually the subject of recovery in an action for damages; yet where the business is of long standing and such profits are capable of definite proof and are within the contemplation of the parties, past profits for a considerable period may be taken into consideration in some cases by the jury in fixing the damages, and in such cases it is up to the defendant to show that there are other reasons why the profits or damages should be less. Chapman v. Kirby, 49 Ill. 211; C. C. C. & St. L. Ry. Co. v. Wood, 189 Ill. 352. For like reasons it was proper for plaintiff to show what his land had produced, and what it would ordinarily produce in the way of crops, as tending to prove its value and productiveness. As the court made a proper holding as to what the real measure of damages should be, we must hold that only proper elements of damages were considered, and the fact that some of the evidence admitted was improper does not require us to hold otherwise. It must be presumed in such cases that the court only considered proper evidence, if the evidence sustains the judgment.

It is next insisted by appellants that they had a right to drain the lands as they did because the ditches were on their own lands and discharged the waters into a natural watercourse. This doctrine must be further limited to the effect that the natural flow of waters, whether surface waters or other waters, cannot be diverted from their natural courses so as to do injury to another by causing more waters to flow on his lands than otherwise would in a state of nature. Bradbury v. The Vandalia L. and D. D., 236 Ill. 36; Comerford v. Morrison, 145 Ill. App. 615. The evidence tended to show that waters were conducted to this land out of their proper channel that would not otherwise have reached appellee’s lands, and that the levee prevented the waters from flowing off appellee’s lands east to the natural watercourse, and held them back on his lands. It was for the court to determine the questions, as to whether or not the plaintiff was damaged as alleged by him, and how much he was thereby damaged, and as the evidence supports the judgment and the record does not contain any reversible errors, the judgment of the lower court is affirmed.

Affirmed.


text:
    James C. Welch, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Measure of damages—in action for injury to land from permanent structure. If the suit is not based on the theory that the structure of the defendant constitutes a nuisance or an illegal and improper structure, but is brought to recover all past, present and future damages on the theory that the structure permanent in character, erected by authority and not negligently constructed, damages the property of the plaintiff, the true measure of damages is the depreciation in market value.
    2. Instructions'—when cannot he complained of. An error in instructions cannot be complained of if the instructions given at the instance of the complaining party contain like error.
    3. Instructions—propriety of, in action where injury resulted from overflowing land. Seld, that it was not error for the court to give an instruction to the jury to the effect “that rains that may be reasonably anticipated to occur at regular intervals of longer or shorter time is not an extraordinary rain within the meaning of the law,” etc.
    Action in case. Appeal from the Circuit Court of White county; the Hon. E. E. Newlist, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Statement by the Court. Appellee charged in his declaration that he was the owner of a thirty-seven acre tract of land in White county; that the defendant was possessed of and operating a railroad on its right of way and extending across the southeasterly side of said land; that in June, 1906, the defendant, appellant, constructed a grade embankment provided with an opening with a double sewer of iron pipes, each of said sewers being of the diameter of five feet and which were insufficient to permit at all times free passage of water through them under said embankment; that the natural flow of water was thereby intercepted and thrown back on appellee’s lands and the same and his corn crops of 1908 and 1909 were permanently damaged in the sum of $1,000. A trial by jury was had and a verdict and judgment were rendered against the appellant railroad company and in favor of appellee for $360.
    Noah C. Bainum, for appellant; L. J. Hackney and F. M. Parish, of counsel.
    Keen & Pearce, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

.. It is insisted here by appellant that the evidence does not support the verdict, and that therefore the court erred in refusing appellant’s motion to direct a verdict of not guilty. It is undisputed, and abundantly proved by the evidence, that prior to the spring of 1906, appellee’s lands and crops were not overflowed and damaged by the usual and customary floods that occurred from the rain falls in that vicinity. It is also abundantly proved by the evidence that since the construction of the embankments and sewers of the defendant in 1906, that the small branch or natural watercourse that flows through appellee’s lands and through the defendant’s said sewers, has been frequently overflowed, and that in 1908 and 1909, about four acres of appellee’s land were flooded with water of considerable depth, and his corn crops of said years destroyed. The plaintiff testifies that several times in each of those years he has seen the waters three feet above the top of the sewers, and that the branch has filled up with dirt and gravel about eighteen inches deep at the mouth of the sewers since the sewers were put in and that this deposit though gradually lessening in depth going west, extends for a considerable way up this branch. He is corroborated by a number of others including some of appellant’s witnesses, that the branch has filled considerably since the construction of the sewers, and that the waters in ordinary rains are held by the railroad embankment and that said waters were backed up from the embankment back to quite a distance on appellee’s land. The contention of appellant that the change made in the course of the branch by the owner of the land in 1905 is the real cause of appellee’s overflows is not sustained by the evidence. It appears that this change in the course of the branch was started about seven hundred feet up the branch, and that from this point to the railroad a new and straight channel was made in the branch, the same striking the old channel at or above the railroad. The evidence shows that no overflows were caused by this change from the time it was made to the time when the sewers were put in by defendant. The defendant’s civil engineer, L. H. Murray, testifies that at the point up the branch where this change in the channel began, he saw gravel deposit there, and that that point is six and three-tenths feet higher than the bottom of the defendant’s sewer pipes. No deposit or fill in the branch occurred above this point, and no overflow occurred above this point. The deposit or fill in the branch is from this point down to the sewer pipes of appellant. No fill occurred in the sewer pipes or below them, and the evidence shows the branch bottom is much lower just below the sewer pipes. These circumstances strongly corroborate the plaintiff’s theory that the bottom of the defendant’s sewer pipes are higher than the original bottom of the branch at that point, and that this lessened the fall of ' the branch, retarded the flow of the waters, and caused the branch to fill up between those points and establish for itself a new grade on its bottom of less declivity. This lessened declivity in the branch would itself tend naturally to cause an overflow, and there being no gravel or deposit or overflow above the point where the new channel of the branch began, together with the fact that there was deposit at this point and down to the sewers, would argue strongly that this point of the branch was lower, rather than shallower, than it was in the original channel, and that therefore the new channel did not cause or tend to cause the appellee’s damage. The weight of the evidence, therefore, clearly shows that the defendant’s sewers did cause the damage to appellee by overflows. This idea is further strengthened by the fact that prior to the putting in of these sewer pipes, the defendant maintained there a trestle of three bents of the total width of about sixty feet, and the branch was not thereby in the least obstructed, and no damage to land and crops had occurred.

It is further insisted by appellant that the court erred in refusing to instruct the jury that where land is wrongfully overflowed so as to deprive the owner of its use, the true measure of damages is its fair rental value., We have quoted the substance of the declaration' as abstracted by the defendant. The suit is not based on the theory that the sewers and embankment of the defendant constitute a nuisance or an illegal and improper structure. No question is raised here as to the sufficiency of the declaration in any respect. The clear intention of the declaration is to treat the structure as a legal and permanent structure, and to claim for all damages that occurred prior to the filing thereof, and for all future damages. The evidence does not disclose any negligence in the defendant in the construction thereof farther than the fact that the sewers are insufficient to carry off the waters of ordinary rainfalls without damage to plaintiff. A structure which is permanent in character and erected by legislative authority, and which is not shown to be negligently and improperly built so as to cause unnecessary damages to the landowner, and which is reasonably operated, is not a nuisance, but is what is known in law as a permanent legal structure that cannot be abated or enjoined. Nevertheless, under our present constitution the landowner is entitled to recover for all damages by reason of the construction and maintenance of such a legal and permanent structure, and the measure of damages against such a structure is for the whole damage, of which depreciation in market value is the measure. Where the injury is temporary in character and of a transient nature, resulting from successive acts, or even where the structure is erected by legislative authority and damages result from negligent or improper construction, the injured party may bring successive actions for resulting damages. North Shore St. Ry. Co. v. Payne, 192 Ill. 239, and authorities there cited.

The fact that some of the plaintiff’s instructions used such expressions as, “if proven by the preponderance of the evidence to be the negligent act of the defendant,” did not prejudice the rights of the defendant with the jury, so far as we are able to see. The question of negligence, or whether or not the damage was caused by the fault of the defendant by improper construction, was not in issue under the pleadings in this case. Both parties treated the structure in the trial as a legal structure and the question of negligence in building the structure should not have been submitted to the jury. Some of the defendant’s instructions contained similar objectionable matter, and the defendant is not in a position to complain of such error; but if it was, the error'is not a cause for reversal as the defendant could not have been injured thereby. It was not error in the court to give instruction No. 6 to the effect, “that rains that may be reasonably anticipated to occur at regular intervals of longer or shorter time is not an extraordinary rain within the meaning of the law,” etc. O. & M. Ry. Co. v. Ramey, 139 Ill. 9.

We have examined carefully the other instruction, No. 1 for appellee, of which appellant complains, and while somewhat objectionable as stating a mere abstract proposition of law, yet we are satified that no harm was done to appellant thereby. The evidence presents a clear case of recovery, and no other finding of the jury could be sustained as we view the evidence. Finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


text:
    P. W. Rose, Appellant, v. Arch Rock Camp, Modern Woodmen of America, Appellee.
    1. Appeals and errors—when hill of exceptions insufficient. A bill of exceptions is insufficient which is not certified or signed by the trial judge. An alleged certificate and signature of the judge attached to the record following the clerk’s certificate, does not cure the irregularity.
    2. Appeals and errors—how transcript should he certified. The clerk’s certificate to the transcript should be appended at the conclusion thereof; such certificate is the last necessity to a proper transcript.

      3. Appeals and errors—what essential to save for review finding of court, etc. If a party desires to have the finding of the trial court on the evidence and its refusal of a new trial considered by the Appellate Court, he must, by bill of exceptions, show the motion for a new trial, its refusal by the court and exceptions to the ruling. It is not sufficient that the transcript of the record as made by the clerk shows such motion, its disposition and an exception.
    4. Appeals and errors—effect of insufficient transcript. An abstract which is no more than a mere index as to the judgment of the court, the verdict of the jury, etc., is not a compliance with the rules of the Fourth District, and the insufficiency thereof is ground for a pro forma affirmance.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 16, 1911.
    O. R. Morgan and Mansfield, Cowan and Boulware, for appellant.
    Spann & Spann, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This case originated before a justice of the peace. On appeal and a jury trial in the Circuit Court judgment was rendered against appellant, P. W. Rose, and in favor of appellee for costs of suit, after the court had directed a verdict in favor of the defendant upon the ground that the alleged contract between plaintiff and defendant was a gambling contract. The record shows that on August 22, 1908, appellant made a proposition to appellee at its lodge hall in Cypress, Illinois, that he would put his check for $25 in the hands of one Charles Tanner, a member of said lodge, to pay the expenses of an investigation of the records and accounts of W. J. Holshouser, banker, and Dr. F. S. Smith, clerk of appellee, if they were not found short, provided the said lodge would cause &aid investigation to be made and bear the expenses of said investigation if a sufficient shortage was found therefor and would pay to appellant ten per cent of whatever shortage was found, if any. The lodge by vote accepted this proposition. On such investigation being had, Holshouser, banker, was found short $141.30; and Smith, clerk, was found short $44. This suit was for the $18.53, or ten per cent commission, claimed by appellant on said shortage.

The contentions of the appellant are that said contract was valid and binding, and that it was not a 0 wager; and that the court erred in holding it to be a wager, and in instructing the jury to return a verdict in favor of appellee, and in its rulings on the admissibility of certain evidence. .

We are very sorry that we are unable to dispose of these matters on their merits. Appellee has called our attention to the fact that there was no proper bill of exceptions transcribed and certified in this cause. The trial judge’s signature is a necessary part of every bill of exceptions. The bill of exceptions in the record as certified to by the clerk is not certified or signed by the trial judge, although an alleged certificate and signature of the judge is attached to the record following the clerk’s certificate. The judge’s certificate is not certified as any portion of, or certificate to, the bill of exceptions. Not until the bill of exceptions is timely signed by the trial judge and filed in the lower court, does it legally become a part of the record of the cause. We cannot properly accept here anything that is merely attached to the transcript of the record as part thereof, and not certified to by the clerk of the trial court. If we could there would be no use or necessity for a clerk’s certificate at all. Eule 9 of this court specifically gives the proper order and contents of a transcript of the record to be sent up here by the clerk, to-wit: “First—A copy of the process; Second—The pleadings of the parties, respectively; Third—The verdict in jury trials; Fourth— The judgment of the court below, whether tried by the court or jury; Fifth—All other orders in the same cause made by the court; Sixth—The bill of exceptions ; and Seventh—The appeal bond in cases of appeal.” And by way of further explanation we now say that the clerk’s proper certificate is the eighth or last necessity to every proper transcript of a record to be sent up to this court; and the certificate is no part of the record, but is the only proper proof to us as to the contents of the record and should always follow the whole record so proved. There are other fatal defects to the alleged bill of exceptions found in this record. It is said in the abstract that the bill of exceptions begins on page 15 of the record. Page 15 of the record is headed, “Bill of Exceptions.” Appellant’s motions for new trial and in arrest of judgment are found on pages 12 and 13 of the record, and are nowhere found in the bill of exceptions, and no exceptions are found in the .bill of exceptions to the overruling of these motions by the court. If a party desires to have the finding of the trial court on the evidence, and its refusal of a new trial, considered by an Appellate Court, he must, by bill of exceptions, show the motion for a new trial, its refusal by the court, and exceptions to the ruling. It is not sufficient that the transcript of the record, as made by the clerk, shows such motion, its disposition, and an exception. The Firemen’s Ins. Co. v. Peck, 126 Ill. 493; Knott v. Swannell, 91 Ill. 25; James v. Dexter, 113 Ill. 654; Reichwald v. Gaylord, 73 Ill. 503; Daniels v. Shields, 38 Ill. 197.

Another ground for affirming the judgment below in this case is that the abstract fails to comply with rules 23 and 27 of this court. Brown v. Otrich, 119 Ill. App. 136. The abstract is no more than a mere index ias to the judgment of the court, the verdict of the jury, the motion for a new trial, the motion in arrest of judgment, and the exceptions thereto, the instructions of the court to the jury, and the assignment of errors. The abstract gives no sort of information as to the said portions of the record, but merely cites us to the record for such information. The abstract is not indexed as required. The index found in the abstract is only an index to the record.

An examination of the rules of this court and a study of the proper contents of a bill of exceptions by the attorneys who bring up cases here for review, ought certainly to avoid placing this court in the embarrassing-situation that we now find ourselves. For the reasons above given we are compelled to affirm the judgment of the lower court pro forma, and it is accordingly affirmed.

Affirmed.


author: Mr. Justice Higbee Mr. Justice Duncan

text:
    Thomas B. Jones et al., Appellees, v. William Bates, Appellant.
    1. Findings of court—when not disturbed. It is for the trial judge who hears the evidence and sees the witnesses on the stand, upon a consideration of their testimony, together with the reasonableness of the stories told by them, to say where the truth lies, and unless the finding by such judge is manifestly against the weight of the evidence it will not be disturbed on review.
    2. Evidence—burden of proof to establish failure of consideration. Where the defense of failure of consideration is interposed to a note the burden of establishing such defense by a preponderance of the evidence is upon the party alleging it.
    Assumpsit. Appeal from the Circuit Court of Massac county; the Hon. Warren W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    C. L. V. Mulkey, for appellant; H. A. Evans, of counsel.
    Courtney & Helm, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Thomas B. Jones and Vernon L. Bogers, partners doing business in the name of Jones and Bogers, appellees, commenced this suit by attachment against William Bates, appellant, on the ground of the latter’s non-residence, which fact was not contested.

A declaration in assumpsit was filed, consisting of two counts, the first of which was based on a promissory note and the second upon an open account, for goods sold and delivered by appellees to appellant.

A trial by jury having been waived, the court found the issues for appellees and entered judgment against defendant, for $3983.60 and costs, from which he appealed.

All the propositions of law offered by appellant, were given by the court. Appellant claims that the judgment in this case should be reversed solely upon the ground that the facts elicited upon the trial, were not sufficient in law to warrant the judgment given against him by the court below. The defense of appellant to the note in question was that there could be no recovery upon it for the reason that it was executed without any consideration and such fact was known to appellees at the time the same is claimed to have come into their hands.

The note sued on was as follows:

“$2341.17. Memphis, Tenn., June 29, 1908. January 1st, 1909, after date, we promise to pay to the order of ourselves twenty three hundred forty one and 17/100 dollars at................value received, with interest at the rate of six per cent per annum.
Wm. Bates
Best Talley
W. M. Bates.”

On the back of this note appear the names of the makers thereof.

The following facts appear to us from a careful consideration of the record to have been established. Some time prior to June 27, 1905, The Talley-Bates Construction Company, a corporation, entered into a contract. with the United States government, to do certain levee repair work on the lower Mississippi river and to secure the faithful performance of that contract, said corporation executed in favor of the government, a bond which was signed by Thomas B. Jones, one of the appellees, and H. T. Bruce, as sureties. To indemnify Jones and Bruce, as sureties, on said bond, and certain other obligations of said corporation, Ben Talley, the president, W. M. Bates, vice president, and L. P. Cummings, secretary and treasurer of said corporation, on the day above named, executed and delivered to Bruce and Jones their bond of indemnity, the condition of which was that they should save harmless the said Bruce and Jones and indemnify them in full for any loss or liability incurred or to be incurred by them as such sureties. The said construction company entered upon its work for the government under said contract, but some time in March, 1906, before the completion of the same, either the work was abandoned by the construction company or stopped by the government and the latter readvertised for bids for such portions of the work as remained unfinished. Separate bids were invited upon specific portions of the work to be done and in the month of July, 1907, the entire portion of the work unfinished, covered by said construction company’s original contract, was relet to various individuals. Among those whose bids were accepted for different portions of the work, were appellant, William Bates, Bruce and Jones, Henry Watkins and another person. Both appellant and Watkins were interested as stockholders in the Talley-Bates Construction Company. The contracts for the work as relet had been awarded to the several bidders above mentioned at a slightly higher price than the original contract provided to be paid to said construction company; yet notwithstanding this fact, for.some reason which does not fully appear, unless it is accounted for by the fact that they were interested in protecting the construction company from any loss occasioned by its failure to finish its work at the price agreed on, and before any contracts were drawn up, an agreement was entered into, whereby the several contractors above mentioned agreed to perform the respective portions of said unfinished work allotted to them for the same price the construction company had originally contracted to do it for and upon this basis the contracts were drawn and signed. Each of the new contractors gave a bond to the government with sureties for the faithful performance of his contract, the bond of Henry Watkins and that of appellant, William Bates, being signed by Bruce and Jones as sureties. Appellee Jones swore on the trial that the bond of Watkins was signed by him at the solicitation of Ben Talley, appellant, William Bates, and W. M.' Bates; that appellant solicited him to go on the bond some ten days or a week before it was made; that he said “he thought we ought to pull together on that business.” At the time the new contracts were entered into, the Talley-Bates Construction Company, together with Ben Talley, W. M. Bates and L. P. Cummings, gave to Bruce and Jones an obligation reciting among other things, that whereas on June 19, 1905, said construction company had entered into a contract with the United States government above referred to upon which the said Bruce and Jones were sureties, for the faithful performance thereof; and, whereas said construction company had failed to perform its said contract and said work had been readvertised and said Bruce and Jones at the request of said construction company had bid in said work at 16 cents per cubic yard, being the original contract price at which said construction company had agreed to do the same, said construction company, Ben Talley, L. P. Cummings and William M. Bates having agreed before the making of said bid by said Bruce and Jones to indemnify them against loss by reason of any increased cost of doing said work, over and above said original contract price, the parties aforesaid in consideration thereof bound and obligated themselves to pay said Bruce and Jones actual cost of executing said work, over and above said contract price of 16 cents per cubic yard. Similar obligations were also given by the same parties to the other persons contracting for said unfinished work. Subsequently Watkins defaulted on his contract and the government, in June, 1908, called on Bruce and Jones to make good the deficiency, the amount of the government’s claim being $2341.17.

It is claimed by appellant that Watkins defaulted in his contract with the acquiescence of his bondsman Jones, and that the latter thereafter procured the government’s agent to hire Watkins by the day to complete the job; that Watkins was paid for so doing the sum of $2341.17, the most of which was collected and retained by his bondsmen Bruce and Jones, but we fail to find this claim is substantiated by the proofs.

After the bondsmen had been called upon by the government to pay said amount of default, Bruce and Jones, on June 29, 1908, called at the office of the Talley-Bates Construction Company in Memphis, Tenn., where they found William Bates, a stockholder of the company, W. M. Bates, his father, who was vice-president, and Ben Talley, its president. They told the parties present that Watkins had defaulted to the amount of $2341.17; that the government had called on them to make good the deficiency and called their attention to the fact that they had agreed to save them (Bruce and Jones) harmless, for signing these bonds, and told them if they were honest men, they would sign a note to them for the amount of the deficiency. The parties appealed to, to sign the note, at first refused to do so and there is a sharp controversy between the parties present as to what occurred later.

The evidence for appellees tends to show that after a warm discussion the note was signed by the parties whose names appear attached thereto, it being understood that if a compromise was made with the government, the makers would oaly pay the balance after deducting the amount released by the government.

On the other hand the evidence for appellant tends to show the conversation became so heated that in consequence thereof both Bruce and Jones retired from the room; that subsequently Jones returned to the room without Bruce, reminded those present that he had befriended them in the past, said that Talley and appellant were both indebted to his firm, that his credit was somewhat strained and that to relieve that strain he wanted the note to show to his banker; that he would not discount it, but that after showing it to his banker would lock it up in his safe and it should stay there until he got his affairs with Watkins fully adjusted and that he would never use it again; that on these terms the note was signed, endorsed in blank and handed to Mr. Jones. It was for the trial judge who heard the evidence and saw the witnesses on the stand, upon consideration of their testimony, together with the reasonableness of the stories told by them, concerning the execution of the note, to say where the truth lay, and we find no reason to disagree with the conclusion reached by him upon that subject. Before the maturity of the note in the month following its execution, it was assigned by Bruce and Jones to Jones and Rogers, the appellees, the consideration for such assignment being that appellees would discharge to the government, the liability of Bruce and Jones on the Watkins bond. Watkins’ deficiency was afterwards compromised with the government for the sum of $1199.97, which was paid to the government by appellees on August 20, 1908.

It is to recover the amount so paid by them to the government that appellees bring suit on this note.

Watkins had bid off the work at a higher price than that which was to be paid by the government to the construction company. In case this work cost the government more than the construction company was to do it for, the latter would undoubtedly be liable for the difference' and they or their bondsmen would have it to pay. When the construction company prevailed upon Watkins to give up his higher rate and perform the work at the same rate they had agreed to do it for, they were relieved from the payment of any deficiency to the government, arising from the failure to perform that portion of the work, in case Watkins did perform it; and when they procured Bruce and Jones to go upon Watkins’ bond for the work, it was in effect the same as though they had remained as sureties for the construction company, as that company was the one really interested in the performance of the work. The construction company in which the makers of this note were stockholders, was therefore deeply interested in the performance of the work which Watkins had undertaken.

Appellant having set up failure of consideration, the duty of proving the same by a preponderance of the evidence, was upon him and this he has failed to do. On the contrary, the proof sustained the finding of the court below that there was a sufficient consideration for the giving of the note; and upon it appellees were entitled to recover an amount equal to that which they paid the government in compromise of the Watkins claim.

The open account upon which appellees seek to recover depends for proof upon a different state of facts from that which concerns the note.

Appellees were merchants in Memphis, dealing in hay, corn, oats and other feed for stock. Appellant, who also resided in the same place, was a contractor doing levee and railroad construction work, and had teams for that purpose. The account in question covers items for feed claimed to have been sold appellant by appellees, between August 19, 1907, and January 8, 1908. The total amount of these sales after giving credit for payments made thereon, and deducting therefrom an item of interest, which is charged in the account but not allowed by the court, amounted to $2783.63. Some of these items are admitted by appellant and others contested. The first item, amounting to $474.59, for oats and hay claimed to have been shipped to appellant at a point in Mississippi, on August 19, 1907, together with freight, is one of the contested items. Appellant insists that he never bought nor received the feed covered by that item and also that about September 1, 1907, he had a settlement with appellees, on. which occasion he paid them all he owed them. On the trial, however, when asked if he had ever denied to Jones and Rogers the receipt of the first item, he said, “No, I neither affirm or deny it. Don’t know anything about it.”

On the other hand appellee Jones swore that the said items of feed were shipped to appellant at the time named and exhibited a bill of lading of the Southern Railway Company at Memphis, Tennessee, showing that oats and hay of the amount claimed, were shipped on said date by that road, consigned to “Will Bates,” Smiott, Miss., and that these articles had never been paid for. This was a question of fact with the preponderance apparently in favor of appellees. The next seven items averaging about $250 each were not contested, but there was a controversy concerning the seven items succeeding them commencing October 31, 1907, and ending December 11 of the same year.

It does not appear to be denied by appellant that the feed included in said items was sent to bvm, but he states that on October 21, 1907, appellee Jones employed him to take his outfit and go down and help Watkins out with his contract, promising that he, Jones, would pay him for the work he did; that as a part of this contract Jones agreed to furnish appellant whatever supplies and cash he might need, while working on the Watkins contract, and deduct the amount from what would be coming to appellant on a settlement; that in accordance with such contract, appellant put his men at work on the Watkins contract on said last mentioned date and they worked thereon until December 12, 1907; that appellant did work on said contract amounting to $3523.55, for which he has never been paid.

Appellee Jones denies having made such contract with appellant,. and even if it were proven, it was a claim on the private account of appellant against Jones and could not be set-off against the co-partnership account sued on by Jones and Rogers, appellees, in this case.

Upon the whole record we are of opinion that the facts in the case sustain the right of appellees to recover both upon the note and the account. If to the amount of $1199.97 paid by appellees to the government in settlement of its claim, which is all they are entitled to recover upon the note, is added the amount of the open account, $2783.63, the result is the sum of $3983.60, the amount for which judgment was given against appellant by the court below. This was the correct amount which appellees were entitled to recover and the judgment of the trial court will accordingly be affirmed.

Affirmed.

Mr. Justice Duncan

having tried this case in the court below took no part here.


author: Mr. Justice Higbee Mr. Justice Shirley

text:
    Joseph King, Appellee, v. DeCamp Coal Mining Company, Appellant.
    Mines and minees—when wilful violation established as proximate cause. If the wilful violation charged and proved be the failure to maintain currents of fresh air as required by statute, and if the evidence shows that the plaintiff suffered in a manner such as would naturally result from such wilful violation, such wilful violation as the proximate cause of the injury is sufficiently established even though it appears from the evidence that the illness of the plaintiff might have resulted from other causes, there being, however, no evidence of the existence of such other causes.
    Shirley, J., dissenting.
    Action in case. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Wise, Keefe & Wheeler, for appellant.
    D. H. Mudge, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Madison county, in favor of appellee, for $800 recovered by him as damages on account of an illness alleged to have been occasioned by the wilful failure of appellant, his employer, to comply with that provision of the act in regard to Mines and Miners, requiring the maintenance of currents of fresh air throughout every coal mine, sufficient for the health and safety of all men and animals employed therein.

The charge of the declaration was that appellant wilfully failed to force into the working place of appellee, currents of fresh air by reason whereof great quantities of carbonic oxide, powder smoke, gas, coal dust, lamp smoke and dirt, and deleterious air accumulated at said working place and in consequence thereof appellee became ill, his system poisoned and his throat, lungs and head permanently affected and injured.

The proofs show that for some months prior to June 26, 1908, appellee was employed in mining and loading coal in appellant’s mine; that at said time and prior thereto, by reason of a defect in a curtain at a cross cut, leading from the entry in which appellee was employed, some distance from his working place, the air forced into the entry, passed through said cross cut, forming a-short circuit instead of passing through a cross cut located near appellee’s working place, so that the men employed there could only work for from ten to fifteen minutes until they would have to seek fresh air to avoid suffocation; that their heads and lungs would become stopped up; that the air was so dusty, dirty and smoky, appellee and his companion could not see each other; that the conditions made appellee sick and he would have to go back to the cross cut to get good air; that the mine shut down temporarily on June 26 and on July 1 appellee was taken sick with bronchial pneumonia, was attended by a physician, confined to his bed for some time and not able to go to work until September following.

It was not contested that appellant failed to comply with the statute in regard to the maintenance of currents of fresh air at appóllee’s working place, nor that appellee was seriously ill with bronchial pneumonia, as claimed by him, but appellant insists that the proof fails to show the dangerous and unlawful conditions existing at his working place, caused the sickness of appellee. The physician who attended appellee testified that his illness could have been caused by the injurious conditions existing at his working place but that there were a number of other causes which could produce the same result. Appellant’s contention is that appellee must prove that the dangerous condition existing in his working place was the proximate cause of his sickness, and that where the testimony leaves that matter uncertain and shows that ■any one of a number of things might have brought about his illness, for some of which his employer would be responsible and for others of which he would not, it was not for the jury to speculate as to what was the real cause of the injury to his health.

Appellant’s theory would no doubt be a proper one in a case where the facts fully supported its premises but it is not applicable in this case for the reason that while the proofs show that the conditions existing at appellee’s working place in the mine could have produced his illness, yet there is a total absence of any proof whatever tending to show the existence of any of the other conditions named by the physician which could have produced the same result. Under these circumstances the jury naturally and properly concluded that the failure of appellant to comply with the statute was the proximate cause of the injury to appellee.

Appellant complains of instruction No. 5 given for appellee, which was as follows: 1 ‘ The court instructs the jury that they are, from the evidence and under the instructions of the court, the judges of all questions of fact in this case and the court does not intend by any instructions given, to tell the jury how they should find as to any question of fact in this case. ’ ’ Appellant insists this instruction is erroneous because its effect is to inform the jury they could determine the facts and evidence as they pleased, without the aid of the instructions and unrestrained by any rules of law the court might lay down. We are unable to appreciate the force of appellant’s argument in this regard, for the reason that the instruction in controversy plainly told the jury that they were the judges of-all questions of fact “from the evidence and under the instructions of the court,” plainly indicating that in determining the questions of fact, they must do so in the light of the rules of law laid down by the court in the instructions.

Counsel for appellant, in support of their position, refer to the case of West Chicago St. E. E. Co. v. Shannon, 106 Ill. App. 120. In that case two instructions which told the jury they were the sole judges of the questions of fact in the case to be determined solely from the evidence, were criticised by the court. Those two instructions, however, were not like the one under controversy here, for the reason that they failed to contain the provision included in appellee’s instruction No. 5 in this case, requiring the jury to determine the questions of fact both “from the evidence” and “under the instructions of the court.” The instruction here given for appellee was wholly free from the vice of the instructions given in the case above referred to and was in no respect erroneous.

The judgment of the court below will be affirmed.

Affirmed.

Mr. Justice Shirley

dissents on the ground that

the breach of duty complained of was not shown to be the proximate cause of appellee’s illness.


author: Mb. Justice Higbee

text:
    John J. Boyd, Appellee, v. David A. Kimmel, Appellant.
    1. Instructions—when do not leave questions of law to jury. Although it is a practice not to he commended for the court to refer the jury to the declaration for the issues, it has not been considered error to make such reference where the instruction requires proof of the averments of the declaration. To tell the jury that the plaintiff is entitled to recover if he has proven his case “as charged in the declaration” is not the equivalent of telling the jury that the plaintiff is entitled to recover if he has proved the material allegations of his declaration.
    2. Instructions—what proper in action for trespass. An instruction which tells the jury that in order to maintain an action for trespass it is only necessary for the plaintiff to prove by the greater weight of the evidence that he was in the actual and peaceable possession of the property upon which the trespass is alleged to have been committed and that the defendant unlawfully interfered with such possession, is proper, where it is limited by a direction as follows: “unless the defendant has proven that he was the owner of the same premises” at the time or times of such trespass or trespasses.
    3. Pleading—effect of plea liberum tenementum. A trespass is not admitted by a plea of liberum tenementum where a plea of not guilty is also filed.
    Trespass. Appeal from the County Court of Union county; the Hon. M. C. Crawford, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    William D. Lyerle, for appellant.
    James Lingle, for appellee.
   Mb. Justice Higbee

delivered the opinion of the court.

Appellee instituted this suit in the County Court of Union county to recover damages alleged to have been caused by appellant by removing and relocating certain division fences, between certain lands owned by them respectively.

The declaration was in trespass, to which pleas of the general issue and liberum tenementum were filed. A demurrer to the latter plea having been overruled by the court, replication was filed thereto by appellee.

It was admitted upon the trial that in the year 1908, prior to the commencement of this suit, appellant took down the division fences in question and moved them some distance on the land owned by appellee and relocated them.

The only substantial question in issue was as to the true location of the lines between the lánds owned by the respective parties. Appellant contended that the lines were properly established by a survey made by one Koenig in the year 1870, while appellee contended the correct lines were established by a survey made in 1907 by Townsend and Frizzell. The jury returned a verdict finding the Townsend-Frizzell survey to be correct and that defendant was guilty and assessing plaintiff’s damages at $15. The court below having overrruled a motion for a new trial, made by appellant, entered judgment in favor of appellee for said damages of $15, and costs, from which an appeal was taken to this court. When the case was considered here we were of opinion that under the pleadings in the case, as well as by the manner of trial, a freehold was involved and the cause was therefore transferred to the Supreme Court for determination. That court, however, held that the County Court did not have jurisdiction to try a case involving a freehold and render a judgment binding as to the title, but that it did' have jurisdiction to hear an action for damages, not exceeding $1,000 for injury to real property; that while a freehold was incidentally involved in this litigation, no judgment could rightfully be rendered that either party was possessed of a freehold under any possible evidence. The transcript and files in the case were therefore directed to be transferred to this court.

Upon the trial in the court below, the question of the location of the true lines between the premises of the respective parties was fully presented to the jury and a considerable amount of evidence relating thereto was introduced. It is unnecessary for us to review the testimony of the several witnesses upon this subject, but it is sufficient to say, that the finding of the jury that the “Townsend-Frizzell” survey was the correct one and established the true division line, was a reasonable finding under the proofs.

Appellant complains that there was error on the part of the trial court in giving appellee’s instructions one, two and four. The first of these instructions stated that plaintiff was entitled to recover, “If he has proven the trespasses or either of them in manner and form as charged in the declaration, by the greater weight of the evidence or the preponderance thereof, no matter how slight that preponderance is, unless the defendant has shown by the evidence that he was the owner at the time in question of the land where said trespass was committed. That the plaintiff in order to recover is not required to establish his case or prove the same beyond a reasonable doubt.” Appellant’s criticism of this instruction is that it leaves the jury to determine what allegations of the declaration are material and he refers to R. R. Co. v. Bailey, 145 Ill. 159, and Baker v. Summers, 201 Ill. 52, as supporting his position. In the former case the court gave an instruction to the effect that if the jury found “all the material allegations of the declaration” were proved, they should find for the plaintiff and while the instruction was condemned for the reason that what constituted the material allegations of the declaration, was a question of law, the case was not reversed on that account for the reason that other instructions given fully informed the jury what was necessary to be proven to entitle the plaintiff to recover and without the proof of which no recovery could be had. The instruction we have under consideration in this case did not refer to the “material” allegations of the declaration and its sole purpose was to inform the jury as to the weight of the evidence required to prove the trespass. Other instructions in the case informed them correctly as to the real question of fact they were called upon to determine. In the second of said cases, an instruction also authorized the jury to base their finding upon proof of the material allegations of the declaration and the court said “there was no instruction telling the jury what the material allegations of the several counts were and what were the material allegations, was a matter of law for the court. Although it is a practice not to be commended for the court to refer the jury to the declaration for the issues, it has' not been considered error to make such reference where the instruction requires proof of the averments of the declaration. The proper method is for the court to inform the jury by the instructions in a clear and concise manner as to what material facts must be found to authorize a recovery.”

These requirements seem to have been fully complied with in the series of instructions given in this case and objection to the instruction in question is therefore without substantial force.

Appellee’s second instruction informed the jury that appellant by his second plea, which was liberum tenementum, confessed the trespasses charged but claimed that he was the owner of the place in question, and therefore had a lawful right to commit said trespass. This instruction was not strictly correct, as a trespass is not admitted by a plea of liberum tenementum where a plea of not guilty is also filed. Street R. R. Co. v. Morrison, 160 Ill. 288.

In this case the entry of appellant upon the premises claimed by appellee and the doing of the acts charged against him were admitted as a matter of fact upon the trial and the jury could not have been misled by the instruction. They were compelled necessarily, under the uncontroverted proofs, to find appellant guilty, if they fixed the division line in accordance with the claims of appellee as they did.

The complaint of instruction No. 4 is that-it erroneously told the jury that in order to maintain an action for trespass it was only necessary for the plaintiff to prove, by the greater weight of the evidence, that he was in the actual and peaceable possession of the property upon which the trespass is. alleged to have been committed and that the defendant unlawfully interfered with such possession.

Appellant rightfully asserts that it is a rule of law that the owner may retake his property from a wrongful holder in a peaceable manner, without committing a trespass. This instruction, however, is not subject to the objection urged against it, for the reason the condition contained in the instruction, is that plaintiff would be entitled to recover in such case “unless the defendant has proven that he was the owner of the same (premises) at such times.” This proviso contained in the instruction effectually disposes of the objection presented to the same by appellant. A careful consideration of the whole record fails to disclose any reversible error committed in the trial of the cause. The judgment of the court below will be affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    Anthony Range, Appellee, v. Helmbacher Forge & Rolling Mill Company, Appellant.
    1. Master and servant—duty of former to warn. The master cannot be held liable for failure to warn a servant against a danger with which the servant is acquainted or that is open and obvious; also, that the obligation of a master to warn an inexperienced servant does not arise unless the master has reason to believe he is inexperienced and is not aware of the danger.
    2. Master and servant—recklessness of servant. A servant cannot recklessly or negligently go into a place of danger and in case he receives injury, recover damages, because it appears that he was at the exact time the injury occurred in the exercise of ordinary care for his safety.
    3. Master and servant—liability to inexperienced servant. Held, under the evidence, that it was for the jury to determine whether the master was liable for an injury which resulted to an inexperienced servant to whom the accident happened by reason of his clothing being caught in a set-screw in consequence of which he was carried around a shaft.
    4. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in other instructions given.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.

      Heard in this court at the October terra, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Wise, Keefe & Wheeler, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee against appellant for personal injuries, received under the following circumstances, as shown by the evidence.

Appellant operates a plant for the manufacture of iron and steel products in Madison county. On December 10, 1908, appellee, who was 26 years of age, raised on a farm and without experience elsewhere, was employed by the assistant foreman to work for appellant. On the first day he piled iron and the next day was turned over to a millwright as his helper. There were three sets of shafting at the plant, one in the machine shed and two in the scrap iron shed. In assisting the millwright, appellee oiled the shaft in the main shed and one of those in the scrap iron shed. These two were about six feet from the ground and there were boards or platforms on a level with them on which he stood while he did the oiling. The other shaft in the scrap iron shed ran north and south, was about ten feet long and rested on brackets at each end. On the shaft was a pulley that received the power and another that communicated it to the scrap iron shears operating below the shaft. Over the shears was a roof or platform on the west side of which was an elevated track for cars called the high line. At the north end of the platform a piece of timber, 2 by 8 inches, set edgewise, ran from the high line out over the shaft. Over the brackets above the ends of the shaft was a boxing and in the top of the boxing, an oil cup into which the oil was poured for lubricating th e shaft. At each end of the shaft next to the bearing was a two inch collar held in place by a set screw, running through the same .to the shaft, which was % of an inch square and projected above the collar an inch and a half. When the shaft was in motion the screw head revolved about 290 times a minute. Late in the day on December 14, 1908, appellee’s foreman ordered him to oil the shaft, just described. It was then in motion and appellee dressed in overalls and jumper, took an oil can, went up the ladder at the south end of the platform and while standing thereon, poured oil in the oil cup at that end of the shaft. He then stepped on the platform and passed to the north end of the shaft on the east side thereof. While standing on the platform and oiling, or preparing to oil, the north end of the shaft, his clothing was caught by the projecting set screw, and he was carried around the shaft a number of times, until all of his clothes were torn from him. He was thrown on a pile of hot scrap iron, by which he was severely burned, before he was rescued. One leg was broken and he was bruised over his entire body. At the time of the trial, over a year later, he had not entirely recovered.

At the time of the injury appellee, who had only been at work a few days, did not see the set screw, did not know what it was, was not informed concerning it or the danger attending it, nor in any way instructed as to how to oil the shaft.

The theory of appellee is that the set screw was invisible when in motion and that this fact was or' should have been known to appellant; that it was unknown to appellee and could not have been discovered by him, in the exercise of ordinary care, and that appellant carelessly ordered him to oil the shaft without informing him of the presence of the screw.

Appellant insists it is shown that the screw could have been seen and also that appellee did not adopt the proper and safe way to perform the duty ordered; that he could have safely oiled it from the high line or from the west side of the platform or walked out on the edge of the 2 by 8 timber that extended over the shaft.

"While it is true it was shown the oil cup could have been filled in the way suggested by appellant, it was not shown that any one way was the only proper one, nor that it could not have been safely oiled from the east side of the platform, by one who knew of the existence of the set screw and understood the danger. It is apparent that each way had its disadvantages and dangers, for an inexperienced hand.

It was clearly within the province of the jury to say whether appellee was guilty of a lack of care for his own safety in adopting the way he did, to oil the shaft, in place of one of those suggested by appellant. It was also for the jury to determine whether appellee’s clothing was caught on the set screw or at another point on the revolving shaft, as suggested by appellant, and as there is ample evidence tending to show it was caught on the screw, as they must have found, such finding should not be disturbed.

Appellant complains that the count of the declaration on which the judgment is based, sets out it was the duty of appellant to inform appellee of the presence of the set screw in question, but failed to state that defendant did not so inform him, and therefore the declaration was defective. There was no special demurrer filed, covering this question, nor was there a motion entered in arrest of judgment. The proof clearly showed such failure on the part of appellant, and we are of opinion the defect, if indeed there was one when the whole declaration is taken together, was cured by the verdict and cannot be effectively raised on appeal.

Appellant rightfully argues that a master cannot be held liable for failure to warn a servant against a danger with which the servant is acquainted, or that is open and obvious; also that the duty to warn an inexperienced servant does not arise unless the master has reason to believe he is inexperienced and is not aware of the danger. These rules of law cannot, however, avail appellant in this case for the reason that the conditions under which they could be applicable were not established by the proofs.

Appellant criticises the first instruction given for appellee, because, after stating certain conditions necessary for appellee to prove in order to establish his case, it authorized a recovery, if the jury further believed from a preponderance of the evidence that “at the time plaintiff was injured he was in the performance of his duties, and was in the exercise of ordinary care for his own safety.”

It is true that a person cannot recklessly or negligently go into a place of danger, and in case he receives injury, recover damages because it appears he was afterward, at the exact time the injury occurred, in the exercise of ordinary care for his safety; but that state of facts does not exist in this case. Appellee was ordered by appellant to go where he did, was not instructed how to perform his duties there, and was ignorant of the danger. We think a fair interpretation of “the time plaintiff was injured” under the circumstances in this case includes all the time he was engaged “in the performance of his duties” in oiling the shafting in question.

Appellant also complains that its sixth instruction was refused by the trial court. There was no error in this regard for the reason, as examination of the refused instruction shows, that the principle laid down was covered by two other instructions given for appellant.

No substantial reason appears from the record why the judgment should be reversed and the same is therefore affirmed.

Affirmed.