text:
    Vina Fuller, Appellee, v. George B. Kelso, Appellant.
    1. Negligence—when no variance between allegations and proof. In an action for malpractice there is no variance if the charge be that the plaintiff was placed in a bed which contained hot water bottles and hot soap stones and was in consequence burned, the proof showing that the hot water bottles and soap stones were placed in the bed after the plaintiff was put there.
    2. Appeals and errors—when rulings upon evidence not subject to review. In the absence of objections having been made, rulings upon evidence are not preserved for review.
    3. Appeals and errors—when final judgment not rendered upon reversal. If a verdict has been directed for one defendant in, an action for personal injuries and obtained as against another defendant, upon cross-errors assigned, even though the directed verdict was erroneous, a final judgment will not be entered on appeal as against the defendant in favor of whom such verdict was rendered, as so to do would be to deny the right of trial by jury.
    4. Appeals and errors—when judgment erroneous as to one defendant. In an action for personal injuries a judgment will not be reversed as to one defendant and affirmed as to another.
    5. Evidence—competency of photographs. A photograph which show's the injuries sued for is competent.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    De Mange, Gillespie & De Mange, for appellant.
    John Fuller and Welty, Sterling & Whitmore, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff resided at Clinton, Illinois. She consulted with one Dr. Bogardus concerning ailments with which she was afflicted, and through his advice and direction went to Bloomington and entered a sanitarium conducted by George B. Kelso and Anna E. Kelso, his wife. Anna E. Kelso maintained an office in the sanitarium at Bloomington, which was also the residence of herself and husband. George B. Kelso conducted an office in the business district of the city of Bloomington. Plaintiff was informed that two operations were necessary, but the one demanding immediate attention was for appendicitis, for which she was prepared and the operation performed. Certain complications were discovered by the physician which required the operation to be continued for something like an hour and a half. After it was finished, plaintiff was found to be in a very serious condition as a result of the operation and the shock to her system caused by the operation. She was given stimulants by injection and removed to her room in the sanitarium, and nurses under the direction of Dr. Tannus, who assisted in the performance of the operation, applied restoratives to the plaintiff for the purpose of bringing about a normal condition; her condition was such that the blood had left the extremities and collected in the vessels of the abdomen, the heart action had stopped and for the purpose of restoring normal circulation it was necessary to apply heat and in the application of heat to the plaintiff for this purpose she was severely burned. This action is brought to recover for these injuries-, alleging negligence on the part of the defendant in the performance of his services. The trial court sustained a motion at the close of the evidence and directed a verdict for the defendant Anna E. Kelso; the jury returned a verdict finding the defendant George B. Kelso guilty, fixing the damages at $2,500. Upon motion for a new trial, the court required the plaintiff to enter a remittitur of $1,000; thereupon judgment was rendered against the defendant George B. Kelso for $1,500, from which this appeal is prosecuted. Plaintiff has also assigned cross-errors on the record upon the action of the trial court in directing a verdict for the defendant, Anna E. Kelso.

It is first insisted by defendant that there is no proof of the charge of negligence made in the declaration and that under the familiar rule of law that the plaintiff must recover upon the charge of negligence contained in the declaration, if at all, the judgment is erroneous. The negligence charged in the declaration is that after the operation was performed upon plaintiff she whs removed to her room in the sanitarium and placed in a bed which contained hot water bottles and hot soap-stones, and that plaintiff was placed upon the soap-stones and permitted to remain in contact with the stone until she was severely and seriously burned and injured. The defendant insists, however, that because the evidence discloses that at the time the patient was placed in the bed no soapstones or other hot objects were in the bed but after she had been placed in the bed they were then applied to her, that the charge made in the declaration is not sustained. They were applied immediately after she was placed in the bed, plaintiff was unconscious at this time, and the law does not require her to set forth the various steps upon which the charge of negligence is based to any such nicety as is undertaken to be insisted upon by counsel for defendants. The charge of negligence in the declaration was sufficient to sustain the proof made under the evidence in this case.

The defendant does not attempt to deny that plaintiff was burned and received injuries of which she complains by reason of the hot soapstones being placed by the nurses in charge of the patient at his sanitarium immediately after the performance of the operation. The only other defense offered to the action is upon the rulings of the trial court upon the evidence and the giving of instructions to the jury and its failure to direct a verdict on motion of the defendant.

The only serious objection urged to the evidence is that the trial court erred in permitting plaintiff to show that other accidents of similar character had occurred at this sanitarium. It is sufficient to say in answer to this argument that no objection was made to this character of evidence at the time it was offered and the question is attempted to be raised for the first time in this court; it is too late. Objection is also urged to the action of the court in permitting photographs of the injuries to be submitted to the jury. The evidence discloses that these photographs were correct and truthful representations of the injuries and the only theory upon which error is urged is that the photographs might distort and that by certain manipulations they can be made to distort features and objects. However true this theoretical proposition may be, there is no evidence to sustain such an argument in this case. The evidence discloses that plaintiff was seriously burned and that she was greatly inconvenienced and suffered considerable pain for several weeks by reason of this injury, and we are satisfied that the jury were fully warranted in finding the defendant guilty, and the judgment rendered by the court after a remittitur of $1,000 is not excessive.

Criticism is made of instructions given on behalf of plaintiff and of the action of the court in refusing to give certain instructions asked by defendant, but after a careful examination of this' record we do not find that they are subject to the criticism made and we are satisfied that they substantially set forth the law applicable to the case and that the jury was fully and properly instructed; the questions which were proper to be given to the jury, embodied in the refused "instructions, were fully covered by the instructions given to the jury and there was no error in refusing the instructions asked by the defendant. We find no error in the record prejudicial to the defendant.

Upon the cross errors assigned by plaintiff, the evidence discloses that Anna E. Kelso conducted and maintained an office at the residence of herself and husband where the sanitarium was conducted, that she treatéd patients therein and assisted her husband in so doing, and under the evidence in this case it was a question for the jury to determine whether or not she was interested in the management and conduct of the sanitarium where the plaintiff was injured and the question should have been submitted to the jury under proper instructions and it was error for the court to direct a verdict in her favor upon motion. It is insisted by plaintiff upon the cross errors assigned that this court reverse the judgment of the trial court in directing a verdict in favor of the defendant Anna E. Kelso and render a judgment in this court against both defendants. To render such a judgment here would be to deprive the defendant Anna E. Kelso of the right of a trial by jury guaranteed to her. Plaintiff does not ask or seek reversal of the judgment against George B. Kelso, and while the cross error is well assigned, and on proper demand therefor this court would reverse this judgment, we have no power to reverse the judgment as to Anna E. Kelso and to affirm it as to George B. Kelso; plaintiff not seeking a reversal of the judgment as to George B. Kelso, we cannot reverse it as to Anna E. Kelso, the other defendant. Jansen v. Varman, 89 Ill. 100; Chaflin v. Dunne, 129 Ill. 241; Maxwell v. Habel, 92 Ill. App. 510.

The judgment, therefore, is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    John Hamm, Appellee, v. City of Litchfield, Appellant.
    Appeals and errors—when questions of law preserved for review. If a case is tried before the court without a jury no questions of law are preserved where no point is raised upon the pleadings and no exceptions are preserved to the rulings upon evidence and no propositions of law submitted.
    Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    M. M. Creighton and D. R. Kinder, for appellant.
    T. A. Gasaway, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant upon a declaration which consists only of the common counts. The controversy grows out of the following facts: On April 1, 1907, plaintiff and defendant entered into a written contract for the construction of a certain sewer in the city of Litchfield. As a part payment for the work to be done defendant was to pay out of its general fund $4,300. The work was begun upon the contract and after defendant had placed about ninety-five feet of the sewer in the ground ainjunction was secured by a taxpayer of the city of Litchfield restraining any further performance of the contract on the ground that the contract was void for the reason that the city of Litchfield was then indebted to an amount in excess of five per cent of the valuation of its taxable property, that the contract was prohibited by the constitution of this state. No further work was done and all proceedings thereunder were abandoned. Some time after this injunction had been granted, the city of Litchfield passed a new ordinance, re-let the contract and the sewer was finally constructed.

Under the second ordinance it was provided that the point of beginning of the sewer should be ninety-five feet from the place of its commencement provided in the contract with appellee under the first ordinance, this being the point to which plaintiff herein performed his portion of the original contract. Plaintiff, acknowledging the illegality of the original contract, brings this action upon the theory that the work performed by him in the construction of the ninety-five feet of sewer under the void contract was his property and the city having utilized that property became liable to pay therefor, notwithstanding the original contract was void. Upon the trial in the circuit court, a jury was waived and the court found for the plaintiff, and rendered a judgment against defendant for $500. Defendant appeals and insists on a reversal of that judgment upon the ground that the original contract having been void and an injunction having been obtained restraining defendant from paying to plaintiff any money or from any further performance of the contract, that no liability could under any circumstances arise by which defendant could be compelled to pay for the work performed, although it did connect with and use the sewer so constructed by plaintiff.

The trial was had in the court below without a jury, there was no demurrer to the declaration, no question raised as to the sufficiency of the pleading, or exception presented to rulings of the court in the admission or rejection of the evidence, and neither plaintiff nor defendant submitted to that court any propositions of law; consequently only questions of fact are involved.

Under the holding in Mutual Protective League v. McKee, Admx., 223 Ill. 264, no question is presented by this record for this court to determine and the judgment is affirmed.

Affirmed.


text:
    J. W. Landgrabe, Appellee, v. Wabash Railroad Company, Appellant.

      Animals—what no defense to action against railroad company for hilling cattle. While it is unlawful for a person to permit or allow stock to run at large upon the public highway, the violation of the statute which prohibits this is no defense in an action against a railroad company to fence its right of way in accordance with the requirements of the statute.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    E. J. Miller, for appellant.
    F. M. Harbaugh, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover damages for the killing of stock upon defendant’s right of way. The negligence alleged in the declaration is a failure to fence the right of way as required by the statute and that by reason of such failure stock belonging to the plaintiff was killed upon defendant’s right of way. Trial below resulted in a judgment against defendant for $150 damages for the stock killed and $25 attorney’s fees.

The right of action is based upon the provisions of paragraph 62, chapter 114, Hurd’s Revised Statutes, 1909. The action was originally brought before a justice of the peace, before whom defendant did not appear but appealed to the circuit court. Paragraph 62. chapter 114 of the statutes requires that a railroad shall fence its right of way within six months after its construction. The record discloses that the company, under this provision was required to build a fence. The fact that no fence existed for a distance of from a mile to a mile and a half from where the animals were killed or injured upon defendant’s right of way is not disputed; the only defense relied upon for this action is that plaintiff was guilty of contributory negligence and that contributory negligence consisted in herding his cattle upon the public highway along the right of way of the defendant at the point where no fence existed. The record discloses that plaintiff was a tenant farmer upon land lying to the east of the right of the way of defendant, that between defendant’s right of way and the land farmed by plaintiff there was a public highway, that a freight train was due upon defendant’s right of way at about four o’clock in the afternoon, that about this time plaintiff telephoned to the station agent at Sullivan inquiring about this train and was informed that the train was an hour late, that thereupon plaintiff turned his stock into the public highway in charge of his son to keep them off the track of the defendant company, that the train came about four thirty or four forty-five, that the boy was unable to keep the stock off the track of the defendant, and the train ran into the cattle, killing one and injuring others.

While the law makes it unlawful for a person to permit or allow stock to run at large upon the public highway and imposes a penalty therefor, the violation of this statute has repeatedly been held to be no defense in an action against a railroad company for failure to fence its right of way in accordance with the requirements of the statute imposed upon it, and by reason of it stock goes upon the defendant’s right of way and is killed or injured. Ewing v. C. & A., 72 Ill. 25; I. C. R. R. v. Davidson, 225 Ill. 624; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370-4.

The question as to whether or not after telephoning to ascertain the time at which this train would probably pass plaintiff’s residence and thereafter turning his stock upon the public highway in charge of a fourteen year old boy, with instructions to keep them off the railroad track, was contributory negligence, was a question of fact for the jury to determine under all of the evidence under proper instructions by the court, and we are not prepared to say that the verdict is clearly and manifestly against the weight of the evidence in this record, or that the jury were not justified in finding the defendant guilty.

It is insisted by the defendant that the court erred in refusing to permit it to show that the plaintiff had been in the habit of and that it was his usual practice to pasture his cattle or stock upon the public highway and to permit it to wander and go upon defendant’s right of way for the purpose of pasturage; even if plaintiff had been, previous to this time, in the habit of pasturing his cattle upon the public highway and that by reason of the failure of the defendant to fence its right of way in compliance with the provisions of the statute, the stock had at previous times wandered and gone upon defendant’s right of way for grazing purposes, this would be no defense to this action and would have been no evidence of contributory negligence on the part of the plaintiff in permitting his stock to be upon the public highway on the day in question. The court permitted all of the facts to go to the jury showing the conditions and circumstances under which plaintiff’s stock was upon the public highway and upon defendant’s right of way at this time, and thera was no error in sustaining the objections to the evidence offered by the plaintiff.

We find no error in the record in regard to the testimony upon the question of attorney’s fees. We find no error in the rulings of the court which would require a reversal of this cause upon the question of the admission and rejection of evidence, and upon an examination of the instructions complained of, we find no prejudicial error. The instructions given by the court as a whole substantially state the law correctly.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


text:
    J. V. Wickert, Appellee, v. L. M. Crosthwait, Appellant.

      Verdicts:—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed
    Opinion filed October 14, 1911.
    Rehearing denied December 8, 1911.
    Stone, Oglevee & Franklin, for appellant.
    De Mange, Gillespie & De Mange, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover a commission alleged to be due from the defendant to the plaintiff by reason of services alleged to have been rendered to defendant under and by virtue of an agreement made and entered into between them regarding the sale of lands. Trial resulted in a verdict and judgment against defendant for $3,200; to reverse that judgment this appeal is prosecuted.

The usual errors are assigned, and it is insisted by defendant that the court erred in the admission and rejection of evidence, in the giving and refusing of instructions, and that the judgment is contrary to the manifest weight of the evidence and against the law.

Defendant was a real estate dealer and in addition to handling the property of others and selling the same upon commission, he bought and sold lands upon his own account, and at the time the contract between plaintiff and defendant was entered into defendant claims to have been the owner of sections 1, 3, 5, 7, 9, 11,13, 15,17, 23 and 25 in township 17 south, range 50, west, in the state of Colorado. Plaintiff had been employed as a school teacher; his term of school expired and he entered into negotiations with the defendant for an engagement in the. real estate business; he asked to be employed on a salary but defendant declined to pay a salary and it was agreed that plaintiff should assist defendant in making sales of real estate and for which defendant was to pay plaintiff one dollar per acre.

Defendant insists that this contract related only to such lands as the defendant owned in the state of Colorado and which he was then undertaking to dispose of, and that for all such lands that plaintiff secured him a buyer or sent him a customer who purchased from him any of these lands at the price of ten dollars per acre he agreed to pay one dollar per acre bnt that this did not apply to lands not owned by defendant and that plaintiff did not secure or send to the defendant a customer who purchased any of said lands. On the other hand,' it is contended by the plaintiff that he was to receive one dollar per acre for any and all lands for which he sent to the defendant or procured for the defendant a customer and with whom the defendant made a deal in regard to the sale of lands, and that the contract related not only to lands owned by defendant but to all lands which defendant had for sale. Negotiations were entered into by plaintiff with various parties concerning the purchase of these lands, and he made trips to various places in connection therewith. Defendant further contends that before any trade or contract was consummated with customers secured by plaintiff, defendant had sold or disposed of all his holdings in the state of Colorado and so informed plaintiff; that he had listed with him for sale a certain tract of land lying in township 51 near the lands which he had owned; that these lands belonged to one Meacham. Plaintiff succeeded in interesting one James Bailey, owning land in Christian county, Illinois, in the Colorado property owned by Meacham; no deal was made wth him regarding this land, but it developed during the negotiations with James Bailey that his father, D. G. Bailey, owned property in the state of Nebraska and also in Pike county, Illinois; that a trade might be consummated with him for the Colorado land in exchange for the Nebraska and Pike county land. This trade was taken up and was finally consummated in November 1908 and the exchange of lands made. But it is insisted by defendant that he informed plaintiff before this trade was consummated that Meacham would pay no commissions' upon a trade of property and the only commission that he would be able to get from this transaction would be a commission of $500 to be paid by Bailey and that he would be willing to divide this $500 with the plaintiff. Plaintiff however denies that any subsequent agreement of this character was made.

Plaintiff also insists that the lands now claimed to be Meacham’s land and which were traded to Bailey for the Nebraska and Illinois lands are the same lands which were shown to him at the time of the original agreement as being owned by the defendant, and that they were marked upon a folder furnished to him by defendant. In the trade made between Meacham and Bailey, Meacham traded 3,200 acres of land, being sections 1, 3, 11,13 and 15, township 17, range 51, Kiowa county, Colorado. When this trade was made defendant requested Bailey not to inform plaintiff that a trade had been consummated and for a long time after this trade was consummated, during the months of December, January and February following, defendant kept insisting to the plaintiff that the trade was still hanging fire and that he was endeavoring to complete it. Plaintiff finally ascertained from Bailey that the trade had been made and the deal closed in November, 1908. He made demand upon defendant for his commission ; defendant replied and denied owing him anything and insisted that it was not consummated through plaintiff’s efforts, that the trade which he had started was with James Bailey and it fell through. The record discloses beyond any question that Bailey was brought to the defendant through the efforts of the plaintiff and it is admitted that plaintiff was instrumental in and did bring Bailey and Meacham together, but defendant insists that there was no agreement with plaintiff to pay him any commissions for any services rendered in this regard. The question as to what contract was made between defendant and plaintiff and to what lands the agreement, if any had been made, related to, upon which defendant was to pay a commission of one dollar per acre, were questions of fact to be determined by the jury, and we are not justified in holding that the jury were not warranted in finding from the record in this case that the defendant contracted with the plaintiff for the payment of one dollar per acre and that the contract related thereto applied not only to lands sold or traded by defendant, whether owned by him or not. The record discloses that defendant has tried to deceive plaintiff and to keep from him information regarding business transacted by defendant which plaintiff was entitled to be informed of, and that defendant has not acted fairly and honestly with plaintiff in regard to this matter.

Defendant also insists that his contract with the plaintiff related only to lands that were sold by him through the efforts of the plaintiff and that the contract, whatever it was, did not include traded lands. The question as to whether the contract was so limited was also a question of fact for the jury to determine and they have determined these questions adversely to the claim of the defendant, and in our opinion, the proof justifies their finding.

It is insisted by plaintiff that the lands which were traded to Bailey in this transaction were identical with those shown and marked upon the folder given to him by the defendant and are the lands to which the original contract related. While this is denied by the defendant, the folder was not produced by either party and the question as to whether any lands were marked upon that folder other than those owned by the defendant personally was also a question of fact.

It is insisted by the defendant that the question of the contract between plaintiff and defendant rests wholly upon the evidence of the plaintiff and that this record shows that he has been successfully impeached, and that therefore there is no evidence to sustain the findings of the jury. The question of the impeachment depends wholly upon the introduction in the record of the testimony testified to by the plaintiff at a former trial, and the question as to which testimony was correct and as to whether or not the plaintiff’s testimony was rendered incredible were also questions of fact for the jury, and it is not a question of law for this court' to hold that plaintiff was impeached, and even if it was we should be very reluctant to do so upon the evidence in this record. The question of the weight and credibility to be given to the testimony of the various witnesses is solely one for the jury to determine, and we are unable to say that they acted from any improper motive or from prejudice or passion.

Defendant insists that the contract sued on. in the case of Close v. Browne, 230 Ill. 228, is like the one at bar and that the decision in that case controls this, but an examination of that case discloses that the contract therein set forth and sued on was materially different from the one alleged by plaintiff to have been made by defendant with him in the case at bar. The finding of the jury that the contract alleged to have been made by plaintiff, as set forth by the testimony in this case, was the contract between plaintiff and defendant herein, and makes the contract so materially different from that sued on in Close v. Browne, that the case is not in point in the controversy here.

Defendant criticises the instructions given on behalf of the plaintiff and also insists that the court erred in refusing certain instructions asked by him. On a careful examination of these instructions and the criticisms made, we are satisfied that the court made no error in the giving or refusing of the instructions and that the jury were fully and properly instructed on all questions involved in this record.

Finding no error in this record which may have been in any manner.prejudicial to the defendant, the judgment is affirmed.

Affirmed.


text:
    Anna C. Hendrix, Appellee, v. Louis Goldman et al., Appellants.
    1. Dram-shops—what evidence competent in action for loss of means of support. Evidence of money borrowed and squandered is competent upon the question of damages in such an action.
    2. Instructions—when erroneous will not reverse. If substantial justice has been done' the giving of an erroneous instruction will not reverse unless it can be seen that the jury were misled by such instruction.
    3. Trial—when remarles of counsel will not reverse. Side remarks of counsel if improper will not reverse if no prejudice appears to have resulted therefrom.
    Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Charles Troup, T. B. Cosgrove, Rufus M. Potts, W. H. Nelms, Carl M. Reisch and Alfred Adams, for appellants.
    Clark & Hutton, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendants to recover for alleged injury to her support and property by reason of alleged wrongful sales of intoxicating liquors by defendant Groldman who was conducting a dram-shop. Defendant Bredehoft is made a party defendant under the statute, being the owner, or joint owner, of the premises in which Groldman conducted a dram-shop, for the purpose of establishing a lien upon his interest in the premises for whatever judgment might be recovered. Trial below resulted in a judgment against both defendants for $1,366, from which they prosecute this appeal.

The grounds urged for reversal are that the verdict is not supported by the evidence, that the court erred in the admission and rejection of evidence, and in the giving and refusing of instructions, that the damages are excessive, and also that improper remarks were made in the presence of the jury by counsel for the plaintiff. As a ground for reversal as to defendant, Bredehoft, it is insisted that the declaration alleges that he owned the property when, as a fact, he was the owner of only the undivided one-half interest.

Upon the question of the sufficiency of the evidence to support the verdict, there can be no question as to the liability of the defendants if the evidence of the plaintiff alone is to be considered and without any contradictory evidence there could be no question of the sufficiency of the evidence to support the verdict. There is some contradictory evidence offered by defendants, and the determination of the weight of the evidence where it is contradictory and conflicting is a question for the jury, and we are satisfied that the evidence in this case is sufficient to sustain the verdict of the jury.

Objection is made to the admission of the evidence of Mrs. Coley, who was a sister of the husband of plaintiff. The testimony given by her which was objected to related to money which Bay Hendrix received during the years 1907 and 1908, for a portion of which money this witness had signed notes with him, as surety. Under the evidence in this record and the habit and characteristic of the plaintiff's husband to waste and squander Ms money and that this money was also wasted and squandered, there was no error in the admission of this evidence, as it was properly admitted for the consideration of the jury for the purpose of determining the amount of damages plaintiff had sustained. It is insisted, however, that the transactions of borrowing this money were not in any way connected with the various times when the plaintiff’s husband was intoxicated, but we do not deem this as essential as the evidence discloses that the money was not for any permanent benefit and was squandered and wasted by plaintiff’s husband by reason of the condition in which he continued by reason of the unlawful sales of liquor to Mm by the defendant Goldman.

Upon the question of the giving and refusing of instructions, the first one of which serious complaint is made is designated as instruction No. 21. While this instruction is not accurate and instructions of almost the same language have been condemned by the Supreme Court, in view of all of the evidence in this case, together with the verdict of the jury, we cannot say that the jury in this instance has been in any manner misled by reason of the giving of this instruction, and where substantial justice has been done a reversal is not required by reason of an inaccurate instruction .unless it can be seen that the jury was misled by the instruction. This instruction does not follow the exact language of those condemned by the Supreme Court; the condemned instructions enumerate certain matters and direct the jury that from those matters alone the question of preponderance should be determined. The instruction here criticized does not entirely eliminate the question of the number of witnesses but informs the jury that the question of preponderance is not alone to be determined from the number of witnesses and, in effect, includes the question of number as well as other matters designated.

Complaint is also made of remarks of counsel for the plaintiff in the presence of the jury. The remarks complained of were made by plaintiff’s counsel after the opening argument when the defendants’ counsel notified the court that they had elected not to argue the case. The court immediately sustained the objection to the remarks of counsel, but it is insisted that this did not cure the error if any error was made. The remarks were not made to the jury in an argument of the case but were side remarks made by plaintiff’s counsel to defendants’ counsel and were merely comments upon the attitude taken by defendants’ counsel in declining to argue the case. While the remarks should not have been made and the objection was properly sustained by the court, we are unable to conceive how the defendants could have been injured by reason of the remarks complained of; the only injury that might possibly have resulted to defendants would have been upon the question of the amount of damages and from the record in this case, we are satisfied that the jury was not influenced by prejudice, passion or other improper considerations in arriving at their verdict. The evidence in the record fully sustains the amount of this verdict for actual damages, and while the jury, upon the record, would have been warranted in awarding exemplary damages and the evidence would have been sufficient to have sustained them, we cannot say upon this record that any such damages were awarded by the jury, and the judgment is not excessive.

Upon the contention that the judgment is erroneous as to Bredehoft, and, being erroneous as to him, cannot be sustained as to the other defendant for the reason that the declaration alleges the ownership of the property in defendant Bredehoft, the evidence only discloses that he is the owner of the undivided one-half and that the record does not disclose any positive evidence of the consent or that any witness testified that he did consent to the sale of intoxicating liquors in this building by the defendant Goldman, the record does disclose that this building has been used for the purpose of conducting a saloon therein for three or four years, although the defendant Goldman has not conducted it during all of that time; defendant Bredehoft did know that the only business conducted in this room was that of a dram-shop and did know that intoxicating liquors were being sold there, that he had been in the building a number of times during the time in which Goldman was conducting his business, and with this evidence in the record, it was a question for the jury to determine whether he consented thereto and it was justified in finding that he did so consent.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


text:
    Kinsey C. Kent, Appellant, v. William H. Beam, Appellee.
    1. Damages—when cannot he recovered for breach of contract to convey land. No contract for the sale and conveyance of land having been entered into by the owners or by one in authority in their behalf, no recovery can be had for a refusal to convey.
    2. Statute of frauds—when contract within. A contract for the conveyance of land must be signed by the owner or by one duly authorized in writing.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    W. B. McBride and J. E. Hogan, for appellant.
    Frank P. Drennan, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover damages for alleged breach of contract for the sale of real estate. Trial below resulted in a verdict for the defendant and a judgment against plaintiff for costs, in bar of action, from which he appeals.

The' declaration in this case charges that the defendant bargained and sold to the plaintiff a certain tract'of land in Christian county at the price of $155 per acre, that plaintiff paid to the defendant $1,000 on the contract price and that by the terms of the contract defendant agreed to furnish plaintiff with an abstract of title showing the premises free and clear of all encumbrance. By his pleas, defendant denied all of the allegations in plaintiff’s declaration and specially pleaded the Statute of Frauds. The issues were joined and trial had. At the close of all the evidence for the plaintiff, on motion of the defendant, the court excluded the evidence and directed a verdict for the defendant.

The record in this case discloses that defendant did not reside in Christian county but that one Louis Johnson attempted to act as agent of the defendant and entered into a parol contract of sale with the plaintiff for the transfer of the eighty acres of land in question. Johnson was a banker at Morris onville, Illinois, and also handled real estate on the side. He wrote defendant in April, 1909, that he had a purchaser who was willing to buy the eighty acres in question at $150 an acre, and asked defendant to write him what he thought about it: Johnson destroyed the reply and it was not produced in evidence, but J ohnson testified that in the reply defendant informed him that there was a mortgage on the land for $4,000 to run for five years, that they would be willing to sell it at $150, but since the mortgage was placed on the land there would be no sale at the present time, but that if he came back to Morrisonville he would talk it over with Johnson. Johnson replied as follows:

“Tours of the 16th inst. at hand and contents noted. It seems to me that if we can secure a purchaser at $150 per acre is a long price and I am satisfied he would assume the loan you have made on it, don’t seem to me that you can realize the interest on a $150 value and pay the taxes. Think it over and let me hear from you again soon. It may be a long time before we will be able to find a purchaser at this figure. We are having too-much rain here, entirely too wet.”
Defendant replied on January 12:
“We have now decided to sell the 80 acres owned by us and will sell for $155 an acre. In one of my letters I said I would come and talk with you, but did not get to come that way. If I owned the 80 acres myself would not sell.”

To this letter Johnson replied on January 14:

“Tours of the 12th inst. at hand and contents noted, saying you had decided to sell the 80 acres at $155. Upon this notice I have bargained and sold this 80 acres for you at $155 per acre, terms cash, on or about March 1,1910. I have taken $1,000 in cash to bind the purchase, balance $11,400 on or before March 1st. Please send me the names of your brothers and sisters and wives and husbands if they have any and I will prepare the deed and forward the same to you for signatures. Tou are also to furnish abstract up to date showing a good title.”

On January 16, defendant wrote J ohnson as follows:

“Received your letter last night and have written to my brother and sister in Spokane that you will buy the 80 acres at $155 and told them to wire me at once. I will get a reply about Wednesday. They told me to find a purchaser at that money but wish to tell them. The abstract is up to date and the title clear. We put a $4,000 mortgage on the 80 acres last May for 5 years; the abstract is with the mortgage in Springfield. Hoping this will be satisfactory for a few days.........”

On January 25, defendant again wrote Johnson:

“I received a letter from my brother and sister that live in Spokane in regard to the 80 acres; they say they are not satisfied with the amount as I had written to several persons in regard to selling the land and they want it at that price, too, and wouldn’t hardly know who to let it go to. My brother and sister think they ought to get a little more money, now this piece of land is going to be sold, so please write me and oblige.”

Johnson also testified that he knew that the defendant did not own this land, that it was owned jointly by the defendant and his brother and sister. The correspondence as disclosed by this record shows that Louis Johnson as a real estate dealer undertook to find a purchaser for the real estate owned by the defendant and his brother and sister, without any instructions or directions so to do by the defendant, and having obtained what he supposed would be a buyer at $150 per acre, reported to the owners of this land that he could sell it for them at that figure, but that he wanted $100 commission for so doing, and the correspondence' does not in any particular disclose or show that the defendant or any one owning this land ever undertook to enlist or engage the services of Johnson or requested him to find a purchaser for this land or authorized him to execute any papers for the sale thereof; no terms of sale were ever mentioned in the correspondence and no time when delivery would have to be made, but Johnson, without any authority whatever, undertook to make a sale of this land and accepted $1,000 as cash payment thereof; he was never authorized or directed to do so. Plaintiff knew that Johnson was not the owner of this land and in dealing with him, even though he was the agent, the record does not disclose that he attempted in any manner to ascertain the authority of Johnson to make the sale or to receive any payment upon the pretended sale. In addition to the fact that' the evidence discloses no authority in Johnson to make a sale of this property, the defendant pleaded and relies upon the Statute of Frauds and the section of that statute which is- as follows:

“No action shall be brought to charge any person upon any contract for the’sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum thereof shall be in writing and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized in writing, signed by such party. ’ ’

The record will be searched in vain for any intimation of evidence tending to show that defendant or any one ever authorized by him signed any contract or memorandum relating to the sale of this real estate, and in this state of the evidence, the Statute of Frauds presents a complete defense to this action. The trial court committed no error in directing a verdict for the defendant and rendering judgment thereon.

The judgment is affirmed.

Affirmed.


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    H. W. Churchill, Appellee, v. J. A. Richards, Appellant.
    Brokers and factors—when commissions not earned. In order that a successful claim for commissions may be made for effecting a sale, proof of employment or the acceptance of services rendered with knowledge of the claim for commissions must be established.
    Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed with finding of facts.
    Opinion filed October 14, 1911.

      Herrick & Herrick, for appellant.
    Richardson & Whitaker, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Action brought by PI. W. Churchill as plaintiff against J. A. Richards to recover for alleged services in bringing about the trade of a stock of goods for a farm in Shelby county between defendant Richards and one Kircher. Defendant Richards owned a stock of goods at Paris, Illinois; he was engaged in the real estate business as broker and trader, and resided in Piatt county. Plaintiff was a real estate broker residing in Shelby county. Plaintiff and- defendant had been acquainted for a number of years and had theretofore made several trades. Defendant wrote to plaintiff, asking him if he had anything in Shelby county that he could trade for the stock of merchandise. This was the beginning of their negotiations in regard to this transaction. Plaintiff replied that he had one hundred and eighty acres that he thought could be traded for the stock of merchandise, and asked defendant to come to Shelby county to look at this farm. When defendant arrived there he found the farm belonged to one Richardson; he was introduced to Richardson by plaintiff for the purpose of effecting a trade of the farm for the stock of merchandise. Richardson was also a real estate dealer and resided in Shelby county. The farm did not suit defendant, the land was in two tracts, one, of one hundred acres, and the other, eighty acres. A trade was not made for this land. After this trade failed, Richardson then proceeded to negotiate with defendant by seeking a trade of the stock of merchandise for a farm belonging to one Kircher. Negotiations were then carried on for this trade. Parties visited the stock of merchandise and defendant examined Kircher’s farm. The farm was of greater value than he desired to handle and no trade could be effected for it unless a bnyer could be found for the Kircher farm. Richardson, the real estate dealer of Shelby county, who was negotiating for Kircher, then consented to purchase the farm at a stipulated price per acre if defendant would trade with Kircher. This trade was then consummated, Kircher taking the stock of merchandise, defendant the farm, and Richardson purchasing the farm.

Plaintiff brings this snit for services on the theory that he was the means of bringing Richardson and Richards together, and it was through his efforts in this behalf that the trade between defendant and Kircher was finally consummated. Plaintiff does not contend that he was employed by defendant to find a purchaser or a person who would trade for the stock of merchandise, but insists that for the reason that defendant asked plaintiff, Churchill, if he had anything in Shelby county that he could trade for the stock of goods, that he is entitled to a commission for services by reason of his having introduced Richardson and defendant. It is not contended that he had anything to do with the transaction, other then introducing Richards to Richardson. In the trade between Richards and Kircher, Richardson, the real estate agent to whom defendant was introduced by plaintiff, was the agent of Kircher and was acting for and representing Kircher throughout the trade and received and was paid his commission by Kircher for its consummation.

Before plaintiff is entitled to recover it is incumbent upon him to show that he was employed or that his services were requested by defendant for the purpose of assisting him in securing a buyer or a person who was willing to trade his property, either upon the terms submitted by defendant or upon the terms afterward agreed upon by him, either with the plaintiff or with some person produced by the plaintiff.

Upon the question of employment, plaintiff relies wholly upon a letter written by defendant to him of date July 20, 1908, the language of which is as follows: “Have you anything in your county that is good, clear of encumbrance, that you could trade for this stock or part of same, say the hardware?” This communication in no way requested plaintiff to find a buyer for his stock of merchandise nor was it a request by defendant that the plaintiff should find a person for him who would trade for the property. This letter, addressed to the plaintiff as a real estate agent, was nothing more than an inquiry of the plaintiff whether he was representing any property as agent for parties who would be willing to trade for this stock of merchandise; and plaintiff treated the inquiry as such and replied, either by telephone or by letter, notifying defendant that- he had a tract of one hundred and eighty acres that he thought could be traded for this stock of goods. In response to this, defendant went to Shelby-ville, where he met the plaintiff. He was then introduced to Richardson who owned the land the plaintiff thought could be traded for the stock of merchandise. Plaintiff did nothing further than to introduce defendant to Richardson and told them to make their trade. No trade was, however, consummated for this land, and it was after defendant declined a trade with Richardson that Richardson, also in the real estate business, took up the question of the trade with defendant for the Kircher land; in this trade Richardson represented Kircher the same as Churchill represented Richardson in the attempted trade for the Richardson land. The trade was consummated and Kircher paid Richardson for his services. Richardson never disclosed that he was representing Churchill and defendant had no knowledge of such a contention. Richardson by reason of' Ms representing Kircher and receiving a commission from him for the trade could not claim to be, or receive compensation as, a representative of defendant. Eichardson in no manner disclosed that he was the representative or was the agent of Churchill and dealt with defendant as an agent representing Kircher and defendant had the right to deal with him as such agent representing Kircher as principal. Instead of disclosing any agency as is now claimed by Churchill through Eichardson, Kircher in his testimony says that at the time of the negotiations Eichardson said Churchill was not interested and was not known in the deal. Churchill was not acquainted with and never knew Kircher until long after this trade was consummated. In fact, never knew that Kircher had any land for trade or sale and he was not instrumental in any manner in bringing about the trade between Eiehards and Kircher, and never having been employed by Eiehards for the purpose of securing a person who would trade for this property he is not entitled to recover in this action.

From the conclusions arrived at upon this record, it is unnecessary to determine the other questions raised. The clerk, will enter in the judgment of this Court the finding of fact that there was no employment by Eiehards of Churchill and that Churchill did not bring about the trade between Eiehards and Kircher.

Reversed with finding of fact.


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    Jacob N. Hilton, Executor, Appellee, v. Dr. T. C. Searight, Appellant.
    1. Res judicata—ivhat essential to application of doctrine of. The doctrine of res judicata requires, first, that the parties to the cause of action shall be identical; second, that the subject-matter of the litigation must be the same as that involved in the second controversy.
    2. Res judicata—when action upon promissory note is. If upon the hearing of a claim against an estate the administrator put in evidence a note due from the claimant without limiting the purpose for its introduction a judgment upon such hearing is res judicata with respect to a subsequent claim brought by the administrator upon such note.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed October 14, 1911.
    Louis FitzHenry and Lester H. Martin, for appellants.
    Stone, Oglevee & Franklin, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This cause of action is brought by Jacob N. Hilton, executor, etc., against T. G. Searight; judgment below was recovered by plaintiff against defendant.

The action is brought by plaintiff as executor against defendant upon a promissory note executed by defendant in the lifetime of plaintiff’s testator. Trial below resulted in a judgment against defendant for $433.35. The note in question was dated the twelfth day of December, 1900. Defendant, during the lifetime of plaintiff’s testator, was called to attend him in a professional way. After the death of plaintiff’s testator, defendant was notified to pay the note to plaintiff. Defendant replied that he had an account against the estate of plaintiff’s testator for professional services and that he would call and they would undertake to adjust the matter. No satisfactory settlement was made and Dr. Searight, defendant herein, filed his claim in the county court against the estate of plaintiff’s testator; the claim amounted to $1,350. A trial was had before the county court on this claim without a jury; it resulted in a judgment in favor of defendant herein for $250. Claimant appealed from the judgment of the county court to the circuit court where the cause was tried de novo without a jury; that trial resulted in a judgment in favor of claimant, defendant herein, for $435.35. No appeal was ever prosecuted therefrom. Upon the trial of that cause in the circuit court, plaintiff herein offered in evidence the note upon which this action is brought. The note was admitted in evidence, taken by the jury to its juryroom, and remained in the files of that cause until the trial of this action in the circuit court when leave was granted to remove it from the files for the purpose of using it in this cause. In the county court upon the claim filed by defendant herein against the estate of plaintiff’s testator, no written pleadings were filed and none were necessary.

In defense to this action, defendant pleads res adjudicaba, and setting forth in his plea the litigation had in the county court upon the estate of plaintiff’s testator. The note had an endorsement thereon of the payment of $20, December 31, 1901, and the evidence on that hearing disclosed that another payment of $60 had been made on the note. Plaintiff now contends that the note was not offered in evidence in that cause of action as a set-off, but merely for the purpose of showing that defendant herein was indebted to plaintiff and that he had been making payments on that note notwithstanding the fact that he claimed to hold an account against plaintiff’s testator, and that the note was offered merely to show that fact for the purpose of discrediting defendant’s testimony and not as a set-off. The principle of res adjudicata is so well settled that when a claim has been once adjudicated no action can be again maintained thereon, and the only question to be determined upon this record is whether or not the hearing in the county court upon the claim against the estate of plaintiff’s testator and in which the note in question was used as evidence was a final determination of this matter and if it was, then the plea of res adjudicata in this case is good and this action cannot be maintained. The doctrine of res adjudicata requires, first, that the parties to the cause of action shall be identical, second, that the subject-matter in litigation must be the same as that involved in the second controversy. Wright v. Griffey, 147 Ill. 496; Cramer v. Wilson, 202 Ill. 83.

When these facts have been established then the doctrine of res adjudicata is applicable and applies to all matters which have been or which might have been adjudicated under the pleadings and under the evidence offered in the former action. Rogers v. Higgins, 57 Ill. 244; Leathe v. Thomas, 218 Ill. 268; In re Northwestern University, 206 Ill. 66.

Section 66, chapter 3 (on Administration) of the Revised Statutes is as follows:

“When a claim is filed or a suit brought against an executor or administrator and it appears on the trial that such claimant or plaintiff is indebted to such executor or administrator the court may give judgment therefor and an execution may issue thereon in favor of the executor or administrator.”

While under this section of the Statutes it was not necessary that plaintiff herein should have produced the note for determination in that case, neither was it necessary for him, in order to have it determined in that controversy, to have filed a plea of set-off, as under the practice in probate courts no written pleadings are necessary and under section 66, supra, where it was made to appear in that trial that the claimant was indebted to the executor, that court then had full and complete jurisdiction in that controversy to determine the rights of these parties. The note in controversy was offered in evidence, and was taken by the jury to their juryroom for determination in arriving at a verdict in this case and determining the amount that the estate of plaintiff’s testator was indebted to the claimant, if any. If the note was produced at the former trial only for the purpose of showing its existence and that payments had been made thereon it was not necessary to have put it in evidence on that hearing or that the jury should have been permitted to take it to the juryroom on considering their verdict. Its offer as evidence was not limited to any special purpose. The note having been used as evidence in that cause must be considered to have been used for all purposes for which it might legally have been considered by the jury unless the contrary is shown.

In re Northwestern University, 206 Ill. 66, supra, the Supreme Court has said: “The principle of res adjudícala reaches further; it extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery of defendants which might have been but were not presented.” In the hearing on the claim against the estate of plaintiff’s testator, the note here sued on was presented as a defense in that action; the jury was not instructed, so far as the record discloses, that it was presented in evidence for any limited purpose, and that hearing must now be held to have been a full and complete litigation of this cause of action; the plea of res adjudicata was established by the evidence and is a complete defense to this action.

The judgment below is reversed.

Reversed.


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    Prudential Insurance Company of America, Appellee, v. Catherine C. Dugger, Appellee, and John L. Boling, Appellant.

      Insurance—what facts rescind assignment of policy. To stop payment of a cheek given in consideration of the assignment of a policy operates to rescind the contract of assignment and precludes the assignee from thereafter asserting title to such policy.
    Bill of interpleader. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Hart & Fleming, for appellant.
    De Mange, Gillespie and De Mange, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The Prudential Insurance Company of America issued an endowment cumulative dividend policy upon the life of John S. Dugger on the 15th day of May, 1901, for $1,000 payable to the insured if alive twenty years from that date, or if John F. Dugger died in the meantime, Charles Dugger and William L. Dugger were named as beneficiaries. The beneficiary under the policy was afterwards changed to Catherine C. Dugger, the wife of the insured. In the early part of the year 1910 John F. Dugger was taken sick; he died February 1, 1910. While he was in the hospital during the month of January the policy was turned over to one Frank DeValon. At that time there was some question as to whether or not the policy of insurance was then a valid and subsisting contract upon the life of John S. Dugger. DeValon took the policy for the purpose of ascertaining whether a loan could be secured thereon for Dugger, and in pursuance of this Boling was approached for a loan. At the request of Boling, Dugger signed a request to the insurance company for information regarding the value of the policy, but before anything was done to consummate this matter, Dugger died, leaving Catherine C. Dugger his widow and the sole beneficiary under this policy. She was without means to pay the expenses of Dugger’s last illness and his funeral expenses, and DeValon, who claimed to be a friend of the family, then undertook the task of ascertaining the value of this policy ostensibly for Mrs. Dugger; for this purpose and for the purpose of finding a person who would advance money thereon if it had any value, the transaction with Boling was continued. Boling made inquiry from several insurance agents in Bloomington as to the value of this policy but claims that he could get no definite information in regard thereto. Boling had been • engaged in the purchase of insurance policies and the advancement of money on insurance policies. Boling first offered Mrs. Dugger $50 for the policy. Upon representations to her by Boling that the policy was comparatively of no value, Mrs. Dugger agreed to an assignment thereof to Boling. A contract was finally signed by Mrs. Dugger for the purpose of raising immediate funds for the purpose of settling up the funeral expenses, and Boling gave Mrs. Dugger a check for $200 for the policy, claiming to be acting as her friend in this matter. After this transaction Boling then went to the agent of the Prudential Insurance Company of Bloomington and requested that he be furnished with blank proofs of loss; he was then informed that the company prepared its own proofs of loss and that they would not be furnished to him; he then requested that the proofs of loss be made to show that the policy belonged to him; this the agent refused to do and informed Boling that the proofs of loss should be made out showing Mrs. Dugger as the sole beneficiary under the policy and that the papers should be executed in that way and they might after that time be assigned by her to Boling. Boling ascertained that the value of this policy was something over $800 against which there existed a lien of some $150.

Because the proofs and vouchers could not be made in the name of Boling he at once stopped payment on the check which he had given to. Mrs. Dugger. The check had been executed in the afternoon after banking hours and by the next morning its payment had been stopped. Mrs. Dugger was about to go to Michigan but after payment of the check had been stopped was persuaded by Boling to remain in Bloomington until the proofs of loss could be made, and the papers returned to her and an assignment made by her to him, and for this he agreed to pay her one dollar per day for the time she so remained. Before this time arrived, Mrs. Dugger also learned the value of this policy and refused to execute the assignment requested by Boling, transferring the proceeds of the policy to him; she offered to return the check and demanded the surrender of the assignment of the policy to her. This was refused by Boling who also refused to release his interest therein except upon the payment of $100 to him; this amount Mrs. Dugger refused to pay.

With the proofs of loss made in the name of Mrs. Dugger and she claiming the proceeds of the policy by reason of being the beneficiary therein and Boling claiming the proceeds by reason of the assignment to him, the Prudential Insurance Company filed its bill of interpleader in the McLean Circuit Court and prayed that Mrs. Dugger and Boling be required to establish which one of them was entitled to the proceeds of the policy. Issue was joined upon this inter-pleader, the cause referred to the master in chancery who reported that Catherine C. Dugger was entitled to the proceeds of the policy, and upon his report to the chancellor, his findings were approved and a decree rendered directing the payment of the money to Mrs. Dugger, from which decree defendant Boling appeals.

The only questions involved in this controversy are whether or not the interpleader was properly filed and whether or not the evidence supports the findings of the master and the decree of the chancellor.

Upon examination of this record we find that upon the death of John F. Dugger, Catherine, his widow, was left without funds with which to pay the funeral expenses and the.expenses of his last sickness; that this condition of affairs was known to both DeValon and Boling, appellant herein; that DeValon and Boling deliberately entered into a conspiracy for the purpose of defrauding Mrs. Dugger out of her rights under this policy, and that scheme was only thwarted by the action of the agent of the Prudential Insurance Company in refusing to make the proofs of loss out in the name of Boling as assignee of the policy; that at the time Boling represented that he did not know the value of this policy and that it was of comparatively little value, if any, and before he made his check to Mrs. Dugger for $200, he knew the value of this policy and knew that it then insured the life of John S. Dugger for $880 and that premiums had been paid upon that policy sufficient to carry the policy of that value until the fifteenth day of February, 1908; that the policy was subject to a lien of $79 as a preferred lien and an outstanding indebtedness of $120.22. This information was conveyed to Boling by a letter dated January 21, 1910, by the assistant actuary of this company and was given in response to the inquiry made while Dugger was still living, at Boling’s request.-

The record also discloses that for the assistance that De Valon rendered to Boling in securing the assignment of this policy he was paid $50.

Even had the assignment been made for a full and valuable consideration and under a valid contract with Mrs. Dugger, Boling rescinded the entire transaction by stopping payment upon the $200 check which he gave Mrs. Dugger and cannot after thus rescinding the contract by his deliberate act insist upon her fulfilling the terms of the agreement. The agreement to pay Mrs. Dugger one dollar per day until the draft for the proceeds of the policy were received and assigned to him was but an attempt to continue and further carry out the fraudulent undertaking by Boling and DeValon to defeat this woman out' of her money. That portion of the contract was not binding upon her for this reason.

The findings of the master and the decree rendered by the chancellor are fully justified by the evidence in this record, there being no prejudicial error in either the receiving or rejection of any evidence upon the hearing.

Affirmed.


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    L. O. Foster, Appellee, v. Walker Smith, Appellant.
    1. Sales—when recovery cannot be had for breach of warranty. If a horse die by reason of an ailment not existing at the time of the sale thereof and not relating to the warranty alleged to have been made, no recovery can be had for breach of warranty.
    2. Measure op damages—in action for breach of warranty. The measure of damages in an action for breach of warranty is the difference between the value as warranted and its value at the time of the purchase.
    Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.

      Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied and opinion modified November 8, 1911.
    B. F. Shipley and Herrick & Herrick, for appellant.
    L. E. Stone, for appellee; W. F. Gray, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant for alleged breach of warranty of a team of horses, sold by defendant to the plaintiff. It is sought to recover not only damages for breach of warranty but also the purchase price paid by plaintiff to defendant for the horses. Trial below resulted in a judgment against defendant for $449.14. It is to reverse this judgment that this appeal is prosecuted.

The record discloses that the plaintiff purchased from defendant a team of horses, that plaintiff paid for the team, took possession thereof and that some time after, while plaintiff still retained and had possession of this team, one of the horses died but that its death was not caused by reason of any ailment or defect that existed at the time of the purchase and sale and plaintiff having taken possession of, kept and retained this horse and its death having occurred by reason of an ailment not existing or relating to the warranty alleged to have been made, plaintiff cannot recover the value of this horse from the defendant, but the loss under such circumstances must be borne by the .plaintiff. While there is evidence in this record tending to show a warranty and a breach thereof, the question as to whether the horses were warranted as claimed is a question of fact that must be determined by a jury from all the evidence in the case under proper instructions of the court, and the basis of recovery upon proof of the warranty and breach thereof is not the purchase price paid, but is the difference between their value if they had been as warranted and their actual value at the time of purchase.

Plaintiff not only retained possession of the horses and lost one by reason of death, but the jury awarded him as damages more than the contract price paid to the defendant, without any competent proof on the proper measure of damages.

It is contended that by reason of a subsequent agreement made between the parties the loss of the horse by death must be borne by the defendant, but the evidence discloses this agreement was never executed but was only executory and the contention of plaintiff that by reason of this executory agreement the loss must be borne by the defendant is not tenable.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    J. H. Bell, Appellee, v. Mattoon Waterworks and Reservoir Company, Appellant.
    1. Eminent domain—when judgment not res judicata. When a petition to condemn does not describe any land of the defendant except that to be taken and no cross petition is filed by the defendant, a judgment rendered as the result of such petition is not res judicata of the question of damages to land damaged but not actually taken.

      2. Statute of limitations—what applies where real property damaged. The five-year limitation period applies as to real property damaged but not actually taken.
    Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.

      Craig & Kinzel, for appellant.
    C. C. Lee and J. H. Marshall, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff to recover from the defendant, Mattoon Waterworks and Eeservoir Company, for alleged damages to property owned by plaintiff lying adjacent to lands taken by the defendant company by right of eminent domain for the purpose of establishing a reservoir to supply the city of Mattoon with water.

Plaintiff was the owner of one hundred and thirty-eight acres located in sections four, five, and nine, town eleven, north range seven east of the 3rd P. M. The defendant company was incorporated for the purpose of furnishing and supplying water to the city of Mattoon and its inhabitants under a section of the statutes providing for the incorporation of such companies. In the building of its reservoir and maintaining the same, it became necessary to use or occupy part of the premises owned by the plaintiff. Under the right of eminent domain, the defendant company condemned the lands necessary for its use. In the petition filed by the defendant company no lands were described excepting that which it was necessary for the defendant company to take and use. The balance of the property, which all consisted of one farm upon which plaintiff resided, was not mentioned in the petition to condemn, and the defendant company in that condemnation proceedings did not disclose by its petition that the plaintiff was the owner of any land other than that which they proposed to take under the right of eminent domain. Plaintiff did not file a cross petition setting forth that he was the owner of any other lands or that any other lands were being damaged or injured by the construction or use of the reservoir to be built and maintained by the defendant company. In the condemnation proceedings the jury fixed the damages for the land to he taken and used by the defendant company; the verdict of the jury in that case was as follows: “We, the jury find that just compensation to the defendant, J. H. Bell, for the lands taken, described in the petition, is five thousand two hundred eighteen dollars and fifty-two cents.” This condemnation proceeding was had in December, 1907.

The declaration alleges the ownership by the plaintiff of the property claimed to be damaged and sets forth the condemnation of the property taken by the defendant company, alleging that the plaintiff is the owner of other property than that taken by the condemnation proceedings, that the same all constituted one farm and that by reason of the construction of the reservoir and the maintaining of the same by the defendant company the lands lying adjacent thereto and which were not taken in the condemnation proceedings have been injured and damaged and it is to recover that damage that this action is brought. The trial below resulted in a verdict and judgment against defendant for $1,350.

The defendant company urges a reversal of that judgment and for cause thereof insists that the condemnation proceedings had before the county court of Coles county and which are set forth in the record herein is a complete bar to the maintenance of this action by the plaintiff on the ground of res adjudicata, that the action is also barred by the Statute of Limitations, that the court erred in the giving and refusing of instructions, and that the verdict is contrary to the law and the evidence and is excessive.

Upon the contention that the verdict is contrary to the evidence and is excessive, if the plaintiff is entitled to recover any damages it was a question of fact for the jury to determine the amount of such damage under proper evidence and instructions in the trial below. The evidence is conflicting and varies considerably as to the amount of damages occasioned to the land. The lands taken by the defendant company in the condemnation proceedings divided the farm of the plaintiff so that fifteen acres remained on one side of the reservoir, and fifty-two acres upon the other side. The distance by ordinary travel around the public highways between these two tracts of land is something like two or three miles. The fifty-two acre tract was entirely cut off from the public highways. After a careful examination of all the evidence in the case, we cannot say that the verdict is not warranted by the evidence or that the damages are excessive.

Under the Eminent Domain Act, where condemnation proceedings are properly brought and can be maintained by the petitioner, the petitioner has the right not only to set forth in the petition the lands which it is required to be actually taken for its purposes but also to set forth and describe the lands lying adjacent thereto which are owned by parties a part of whose land is sought to be taken, alleging the damages to such adjacent land if any such damage will, or is likely to be caused by reason of the construction of the work upon 'the lands songht to be taken; bnt it is not necessary that the petition should set forth any other lands than those actually required to be taken. When a petition does not describe any land excepting that to be actually taken by the petitioner and no cross petition is filed by the defendant a part of whose land is proposed to be taken, the only question then involved under the pleadings is the value of the land actually taken. In the case of Jones v. C. & E. I. R. R. Co., 68 Ill. 381, upon the question of damages recoverable under an action to condemn, the Supreme Court has said: “The evidence shows appellant owned other lands abutting the tract on which the railroad is constructed, but the court very properly instructed the jury they could only allow for damages occasioned to the property described in the petition. Had appellant desired to have damages assessed for injuries to contiguous lands owned by him, he ought to have filed a cross petition.”

The practice in the courts of this state in eminent domain proceedings has uniformly been that where the petitioner only describes lands actually taken, the question of damage to contiguous land owned by parties whose land is to be taken is not a proper question to be determined without a cross petition setting forth the ownership of such adjacent lands and alleging damage thereto. The Supreme Court has universally held that where the petitioner sets forth the owning of the entire tract by the defendant, then a cross petition is unnecessary and the whole question of the value of the lands taken and of the damage to adjacent lands is necessarily involved in that proceeding. City of Bloomington v. Miller, 84 Ill. 621; I. W. E. R. R. Co. v. Mayrand, 93 Ill. 591.

The petition and order entered in the condemnation proceedings are offered in evidence for the purpose of showing res adjudicata, but the petition does not describe any land except that sought to be taken and the verdict of the jury was only for the land actually taken. The order authorizing the defendant company to take the land under the condemnation proceeding provided only for the payment of damages for lands actually taken. It is insisted by the defendant company that a plat was attached to the condemnation petition which plat had marked upon it lines indicating all of the land owned by plaintiff, and that this was sufficient to bring the entire question of the damages, not only to the land taken but damages to land not taken, into that record; but an examination of this plat, even if it could possibly be made a part of the petition, does not even attempt to describe any land or show any land owned by the plaintiff, by any matter or description whatever, outside of the lands actually taken. While the law upon the question of res adjudicata, and for the purpose of determining that question, is that all matters which under the pleadings might properly be heard in that action are presumed and conclusively held to have been heard, it does not extend to" any matter where under the pleadings the rights involved in that action could not be determined and are not shown to have been heard in that court from the records of that court, then the former action is not res adjudicata. The evidence heard upon the petition of condemnation is not offered in this record and the presumption is that that cause determined only such questions as were proper under the pleadings, and the condemnation proceeding is not res adjudicata as to the rights of the parties involved in this action. The building - of this reservoir and its maintenance necessarily involved the confinement of a considerable body of water which might at any time overflow and damage the lands adjacent thereto. It was not necessary that the plaintiff herein should have filed a cross petition and undertaken to prove consequential damage by reason of the construction of the reservoir by circumstantial or speculative evidence, but he had the right to wait the determination of this question until the question of damages might be positively and specifically determined and bring his action at law for the recovery of such damages at any time within which the law permitted the action to be brought.

Upon the proposition that this cause of action is barred by the Statute of Limitations, the condemnation proceedings were had in December, 1907. Even if the right of action accrued at the time of the condemnation proceedings, as contended by defendant,

the right of action is not barred in two years, as contended for by defendant, but is controlled by section 15, chapter 83 of the Revised Statutes, and the contention of appellant that the cause of action is barred by the Statute of Limitations is not tenable. C. & E. I. v. McAuley, 121 Ill. 160.

Defendant criticises instructions number two and three given on behalf of plaintiff. On examination we do not find them subject to the criticism made, and find no error in giving them. Defendant also complains that the court erred in refusing to give instructions designated as defendant’s refused instructions number two, four and six. There is no element involved in these instructions which was not included in those given, and all of the questions therein raised were properly and sufficiently given to the jury by other instructions; it was not error to refuse them.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


text:
    Arthur G. Loomis et al., Plaintiffs in Error, v. Federal Union Surety Company et al., Defendants in Error.
    1. Service of process—when upon foreign corporation confers jurisdiction. Service upon the representative designated for service pursuant to statute is good as to a foreign corporation even though the transaction involved in the litigation took place outside of the state of Illinois.
    2. Abatement—what not former suit pending. An action pending in a foreign jurisdiction cannot be pleaded in abatement or in bar of an action in this state.
    3. Parties—when demurrer properly sustained. If it appear that the defendant is neither a necessary nor a proper party to the bill, a demurrer interposed by such party is properly sustained.
    Error to the Circuit Court of Coles county; the Hon E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed in part, reversed in part and remanded.
    Opinion filed October 14, 1911.
    James Vause, Jr., for plaintiffs in error.
    Henry A. Neal and Samuel Dowden, for defendants in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is a bill filed by complainants against defendants for the purpose of compelling the Federal Union Surety Company to pay over to complainants certain moneys alleged to have been paid to it by the defendant, C. C. C. & St. L. Railway Company, upon a contract made between the Collier Bridge Company and the railroad company, the performance of which contract was guaranteed-on the part of the bridge company by the Federal Union Surety Company. The bill was filed in Coles county. The C. C. C. & St. L. Railway Company, was the only defendant found in that county; service was had upon the Federal Union Surety Company and the Collier Bridge Company, who were foreign corporations, by summons served upon their representatives appointed under the statute requiring the designation of some persons within the state upon whom service can be made. To this bill, the defendants, the Federal Union Surety Company and the Collier Bridge Company, filed pleas in abatement denying jurisdiction of these defendants. The railroad company demurred to the bill. The pleas to the jurisdiction were held good and judgment rendered against complainants upon these pleas. After the pleas had been held good the demurrer of the defendant railroad company to the bill was sustained and the bill dismissed, with judgment against complainants for costs, and it is from this judgment that complainants prosecute the writ of error to this court.

The bill filed by complainants sets forth with proper averments the contract between the Collier Bridge Company and the C. C. C. & St. L. Railway Company for the construction of certain cement work upon the right of way of the railway company in the state of Indiana, that this contract was guaranteed by the defendant, Federal Union Surety Company, that the work required to be done by the bridge company under this contract was sub-let by it to complainants herein, that during the progress of the work certain payments were made to complainants herein, but before the completion of the work the Collier Bridge Company became financially embarrassed and was unable to perform its contract, that thereupon an agreement was made by complainants with the defendant railroad company and the defendant Federal Union Surety Company by which complainants proceeded with and finished the work provided to be done by it and that in payment for this work the defendant railroad company paid the_ defendant surety company under agreement that payment by it should be made the complainants; that the surety company failed and refused to make the payment to the complainants after the completion of the work.

The pleas which were filed by the defendant bridge company and the defendant surety company were to the jurisdiction of the court of the persons of these defendants and these pleas respectively allege that defendants were foreign corporations, that the contract under which the work was performed by complainants was governed by the laws of the state of Indiana and related to work done and performed in that state, that no contract relating to the said transaction was made by either of these defendants within the state of Illinois, and that for work done and contracted for outside of the state of Illinois the courts of this state could obtain no jurisdiction by service upon the legal representatives of these corporations within the state of Illinois. A demurrer was filed to these pleas and overruled.

The question raised by this appeal as to these defendants is whether or not these pleas presented a good defense to the jurisdiction and whether or not by service had the circuit court of Coles county could obtain jurisdiction of the defendants, the Federal Union Surety Company and the Collier Bridge Company; if it did, then the demurrer to these pleas should have been sustained and the defendants required to answer the bill. The cause of action against, the defendant railroad company as set forth in the bill was merely one of discovery and was only for the purpose of compelling it to disclose the amounts of money paid to the Federal Union Surety Company for work performed by complainants, and as to it the only question raised is whether the bill of discovery will lie for this purpose and whether the railroad company is properly joined as a party defendant. Complainants herein were residents of Coles county. The plea to the jurisdiction filed by the Federal Union Surety Company was signed by Samuel A. Dowden, one of the solicitors of that corporation; the plea that purported to have been filed by the Collier Bridge Company is not signed by the Collier Bridge Company but is signed by the Federal Union Surety Company by Samuel A. Dowden, solicitor, and so far as the record in this case shows, there is no plea on file signed by the corporation, the Collier Bridge Company. The sufficiency of the pleas to the jurisdiction filed by the Federal Union Surety Company and the Collier Bridge Company, defendants, was heard and a judgment rendered thereon on the fifteenth day of the October term, 1909, of said court; on the seventeenth day of that term the demurrer was filed by the defendant railroad company to the bill; the judgment of the court on this demurrer was rendered at the January term, 1910.

Section 26 of chapter 32 of Hurd’s Revised Statutes, 1908, is as follows:

“Foreign corporations, and the officers and agents thereof doing business in this state, shall be subjected to all the liabilities, restrictions and duties that are or or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers. * * *”

Section 102d of the same chapter is as follows:

“All actions brought against any company or corporation doing business under this act, may be brought in any county where the cause of action accrued or where the plaintiff or complainant resides or in any county where the company or corporation does business, and process may be- directed to any county in this state for service and return.”

Section 7 of chapter 110, Hurd’s Revised Statutes, 1908, is as follows:

“The courts of record of the county wherein the plaintiff or complainant may reside, shall have jurisdiction , of all actions hereafter to be commenced by any individual against any insurance company either incorporated by any law of this state or doing business in this state. And all process issued in any cause commenced in the county where the plaintiff may reside, wherein an individual may be plaintiff or complainant and such company defendant, may be directed to any county of this state for service and return. ’ ’

It must be conceded that the defendant, Federal Union Surety Company, and it is not contended otherwise, is an insurance company falling within the provisions of the statutes of this state relating to such companies. U. S. F. & G. Co. v. First Nat’l. Bank, 233 Ill. 475; People v. Rose, 174 Ill. 310.

Defendants in error ask this court to construe these sections of the statutes to mean that unless the contract was made within the state of Illinois and was to be performed in the state of Illinois, the sections of the statute above set forth do not apply, but we are unable to see any reason for or upon what theory this court can construe the statute in this way. There certainly is nothing in the statute that would indicate that any such limitations could be put upon it and where the reading of the statute is plain and the language unambiguous then it is unnecessary for a court to construe it; but the court is required to follow the statute and enforce it as it is written. People v. Rose, 174 Ill. 310, supra.

The contract executed by and between the Collier Bridge Company and complainants contains the recitation that the complainants herein are residents of Coles county where this action was brought, and unless a contrary showing is made to appear, the presumption prevails that complainants are residents of the county wherein the suit was brought, and to construe the statute as insisted upon by defendants, Collier Bridge Company and Federal Union Surety Company, would be to compel residents of this state to go to a foreign jurisdiction in order to litigate the matters herein involved. The section of the statute which requires the appointment of a legal representative of the defendant companies in the state of Illinois does not use any language which will bear the construction attempted to be placed upon the statute by the defendant corporations, and it is very evident that the legislature did not so intend it. These defendants are authorized to do business in the state of Illinois and .their appearance here for that purpose does not limit them as to the nature of the business they shall perform in relation to their operations, and it must be held that by reason of the license granting them permission to do business within the state, they did, for all purposes for which they entered the state, become citizens thereof and that must be held to include the right to sue or to be sued. It was the evident purpose of the legislature in making these provisions relating to foreign corporations that they should be brought within the jurisdiction of the courts of the state of Illinois to the same extent and for the same purposes as corporations which were resident in the state. People v. Van Cleave, 187 Ill. 125; St. Joseph Railroad Company v. Crane, 102 Ill. 249.

The pleas in abatement also set forth and allege that a former suit was begun and was still pending in Putnam county, Indiana, for the same identical cause of action as set forth in the bill of complaint herein, and the defendants insist that this is ground for the abatement of this action. The courts of this state have not held that action pending in a foreign jurisdiction can be pleaded in abatement or in bar of action in this state. While it is true that as between courts of the same state which have concurrent jurisdiction, the one first obtaining jurisdiction will retain it and in another action begun in the courts of that state the former action may be pleaded in abatement, the doctrine does not go to the extent that a suit pending in a foreign jurisdiction may be pleaded in abatement in a court of another state. A party is permitted to pursue his remedy in both jurisdictions but is entitled to but one satisfaction. L. Ins. Co. v. Corbett, 165 Ill. 592; McJilton v. Love, 13 Ill. 486.

The pleas in abatement to the jurisdiction of the Circuit Court of Coles county were insufficient and the court erred in holding them sufficient.

Upon the question raised as to the sustaining of the demurrer filed by the defendant railroad company, as far as the bill relates to the railroad company, it was purely one of discovery and contains no prayer for relief as against the railroad company and was for the purpose of ascertaining the amount of money paid by it to the defendant surety company, and for the purpose of compelling it to disclose this it was joined as a party defendant with the Federal Union Surety Company and the Collier Bridge Company. All the information sought to be obtained could and might have been obtained from it by the examination of the officers of the defendant company on the witness stand upon the hearing of the cause between the other defendants and it was wholly unnecessary that the defendant railroad company should have been a party to this action, and not being either a necessary party or a proper party the demurrer as to it was properly sustained.

Upon the point raised that the plea filed by the defendant Collier Bridge Company was not signed by it, and that a reversal of this judgment is necessary for that reason, it must be conceded while it was probably an oversight on the part of the defendant Collier Bridge Company it nevertheless leaves the record in this case with a plea to the jurisdiction held sufficient without such plea having been filed, but in the consideration of this case we have considered it and determined it upon the theory that the plea was properly filed, as the plea which the record contains is identical in all particulars with the plea filed by the defendant surety company and what has been said in reference to that applies to both pleas.

The action of the court in sustaining the demurrer of the defendant railroad company is affirmed, but for the reasons indicated the judgment holding the plea sufficient and quashing the writ against the Federal Union Surety Company and the Collier Bridge Company is reversed and the cause remanded.

Affirmed in part, reversed in part and remanded.