text:
    Town of Hudson, Appellant, v. Etta Carrithers and Fred Carrithers, Appellees.
    1. Roads and bridges, § 208

      —when evidence as to width of other roads inadmissible in action for penalty for obstructing road. In an action by a town against property owners to recover a penalty, under J. & A. U ¶ 9700, for obstructing a public highway by placing private telephone poles on the side of a road next such owners’ land and for leaving them there after having been notified to remove them by the county commissioners, evidence as to the width of other roads in the township by way of comparison held inadmissible.
    2. Appeal and error, § 1466*—when admission of evidence harmless error. In an action by a town against property owners for obstructing a road by constructing and maintaining private telephone poles therein, held that the admission of evidence on the part of defendants tending to show that for six years telephone poles belonging to a public telephone company stood in the same place where the poles in controversy were standing and were permitted to stand there by the highway commissioners was harmless error, as the evidence was more favorable to the plaintiff than to the defendants.
    3. Roads and bridges, § 208*—when evidence as to existence of fence admissible in action for penalty obstructing road. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein on the side of the road adjoining defendants’ premises, in which defendants claimed the poles were on their land, held that the admission of evidence of the existence of some of the old posts standing in front of defendants’ house, which were part of the original fence along defendants’ land, to prove the existence of such fence, was not inadmissible on the ground that the poles in controversy did not run as far as the house, where there was evidence tending to show that the posts which were still standing were part of a fence that extended in a direct line along the side of the road.
    4. Evidence, § 165

      —when self-serving declarations admissible. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein on the side of the road adjoining defendants’ premises, where the point at issue was whether there had been a dedication of the land on which the poles were placed, evidence that one of the defendants at a meeting of the school board, when the question of building a sidewalk over the land in dispute was taken up, refused to permit such sidewalk to be built on the ground that the land was private property, held admissible to show that the public, as represented by the school board, did not think there was a public right to lay a sidewalk over the strip in controversy.
    5. Roads and bridges, § 208*—when evidence properly excluded in action for penalty for obstructing road. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein on the side of the road adjoining defendants’ premises, when the point at issue was whether there had been a dedication of the land on which the poles had been placed, held that evidence that defendants’ ancestor, who formerly owned the land, in his lifetime asked the commissioners of highways for permission to place a wire and posts along the side of the strip in question for the purpose of protecting the path thereon from being ridden or driven over, was properly excluded.
    6. Roads and bridges, § 209*—-when instruction in action for penalty for obstructing road properly refused. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein on the side of the road adjoining defendants’ premises, in which the issue was whether the poles were within the highway, a requested instruction that the court “instructs the jury that no person or persons have the right to place telephone poles, telegraph poles or electric light poles along or upon a highway without the consent of the authorities having control thereof,” held properly refused.
    7. Instructions, § 126

      —when properly refused. Requested instructions which are abstract in form are properly refused.
    8. Roads and bridges, § 209*—when instruction in action for penalty for obstructing road erroneous as inapplicable to evidence. in an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein, in which the issue was whether there had been a dedication of the land in which the poles were placed, an instruction that the only evidence that there had been a dedication of the strip in controversy was such as arose from the proof of user by the public, held erroneous because excluding from the consideration of the jury other evidence introduced which tended to show a dedication on the part of the ancestor of one of the defendants.
    9. Roads and bridges, § 209*—when instructions on rights of adjoining owner in highway erroneous. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein, instructions on the right of the adjoining owner to make use of the highway, held correct.
    10. Roads and bridges, § 224*—what are rights of owner in fee of public highway to use such highway. The owner of the fee in a public highway outside of an unincorporated city or village has a right to use said highway for any purpose of his own not incompatible with the free, safe and convenient use thereof for public travel thereon. o
    11. Roads and bridges, § 210*—when obstruction of highway by owner of fee question for jury. In an action by a town against property owners for obstructing a public highway by constructing and maintaining private telephone poles therein, held that it was a question for the jury whether the use of the highway in such a manner by the owner of the fee constituted an obstruction of the highway.
    Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.-
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Hart, Fleming & Pratt, for appellant.
    W. R. Bach and Stone & Dick, for appellees.

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

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This case was instituted before a justice of the peace of the Town of Hudson to recover a penalty from Etta Carrithers and her husband, Fred Carrithers, for placing an obstruction on a public highway and for leaving the same there after having been notified to remove it by the commissioners of highways, contrary to section 71 of chapter 121, J. & A. Ann. St., ¶ 9700. On appeal to the County Court of McLean county, the case was tried by a jury and a verdict returned finding appellees not guilty. Two special interrogatories were submitted to the jury, to each of which the jury answered “no.” They are as follows: “(1) Are the poles in question in the public highway?” “(2) Do said poles obstruct the public highway?”

The highway in question is an important and much-traveled road, being connected with what is known as the Main street road, which runs from Bloomington north through Normal and then north through the Town of Hudson. Originally Hiram Havens owned the land through which this road runs, and fifty or sixty years ago opened the road through it for a public highway. Hiram Havens died testate, and by his will the land was devised to Mrs. Carrithers for her use during her life with remainder in fee to her children. Mr. and Mrs. Carrithers, appellees, reside on the north side of the highway at the corner of the intersection thereof with the Main street road. In November, 1914, Mrs. Carrithers erected seven poles at intervals in front of her land on the north side of the highway, for the purpose of carrying wires for an electric current with which to light her home.

Two defenses were interposed in the court below, one that the land on which the poles were placed never was dedicated as a part of the highway, and the other that even if it had been included in the part dedicated for the highway, Mrs. Carrithers being the owner of the fee therein subject only to the full enjoyment of the easement acquired by the public to use the same as a public road, the placing of said poles in the location where they were erected was not incompatible with the use of the highway by the public as a road, as they in no manner interfered with or restricted such use and were not therefore obstructions.

It is first insisted that the trial court erred in its rulings on the admission of evidence. Over the objection of appellant, appellees were permitted to prove the width of other roads in the township by way of comparison. Such testimony in actions of this kind is incompetent. Township of Whitley v. Linville, 174 Ill. 579.

Appellees introduced evidence tending to show that from 1901 to 1907 telephone poles belonging to a public telephone company stood in the same place where the poles in controversy are now standing and were permitted to stand there by the commissioners. This evidence was more beneficial to appellant than to appellees as it tended to show that the space occupied by these poles had been previously used by the telephone company and others with the consent of the commissioners. It certainly could have no harmful effect on the interests of appellant. Appellees introduced evidence tending to show where the old original fence was on the north line of the road by proving that some of the old posts were still standing in front of appellees’ house, and the admission of this testimony is assigned as error on the ground that the poles in controversy did not run as far as the house but only as far as the garden, and therefore any evidence tending to show where the old fence was in front of the house was incompetent. This contention cannot be sustained as there was evidence tending to show that the posts which are still standing were part of a fence that extended in a direct line along the north side of the road.

Appellees introduced evidence showing that children in going to school walked along the north side of the old wire fence which had been erected along the north side of the highway. In 1896 or 1897 a new fence was built just north of the path ,on the north side of the wire fence and turnstiles and bars were placed at either end of the little lane made by the two fences. This last fence was built to keep the stock off of the path. Appellees put cinders on this path and the evidence shows' that this path through this narrow lane between the fences was used by children going to school and others who desired to walk over the same, by permission of appellees. Subsequently the old fence rotted away and left the path on the outside of the north fence erected in 1896 or 1897. The witness Snavely testified that eighteen or twenty years ago he was a member of the school board and that Mr. Carrithers was present at a meeting of that body wherein the subject of the board contributing with Mrs. Carrithers towards the expense of building a sidewalk on this path was discussed and that Mr. Carrithers, on behalf of his wife, refused to permit the board to make the improvement on the ground that it was private property. It is urged that the admission of this testimony was erroneous in that it was a self-serving declaration. "While, as a general rule, self-serving declarations are inadmissible, yet in this case, where the point at issue was whether there had been a common-law dedication, this conversation was competent as tending to show that the public, as represented by the school board, did not at that time consider that there was a public right to lay the sidewalk over the strip in controversy, without the consent of Mrs. Carrithers.

Counsel for appellant offered to prove by the witness Smithson that Hiram Havens in his lifetime asked the commissioners of highways, of - whom the witness was one, for permission to place a smooth wire and short posts along the side of the path on the north side of the highway for the purpose of protecting the path from the people riding or driving over. it. An objection to this proof was sustained. The court was technically correct in sustaining the objection to the offer as made for the reason that the location of the north side of the highway was one of the matters in controversy, and the fact that Mr. Havens might have asked the commissioners for the privilege of stringing this wire alongside of the path on the north side of the highway could have thrown no light upon the question as to where the north side of the highway was. If the evidence had been admitted as offered, it would have been more favorable to appellees than to appellant as it tended to show the existence of the path and that Mr. Havens denied the right of the public to drive over it with their vehicles. If this offer of proof had been in such form as to tender proof that Havens asked permission to erect posts and extend the wire along the line now occupied by the poles, it would have been competent as an admission against Mrs. Carrithers by her grantor or ancestor privy in estate. Mueller v. Rebhan, 94 Ill. 142; Schell v. Weaver, 225 Ill. 159.

Appellant complains of error in refusing to give the following instruction: “The Court instructs the jury that no person or persons have the right to place telephone poles, telegraph poles or electric light poles along or upon a highway without the consent of the authorities having control thereof.” This is an abstract proposition of law and for that reason there was no error in refusing it, but it is bad as a proposition of law. The word “along” frequently means by the side of. A person would have a right to erect poles on his own property by the side of a public highway, and one of the issues in this case is whether these poles were erected upon the highway or on appellees’ land along or by the side of the highway. Under the statute telephone companies under certain conditions have a right to erect poles within a public highway even without the consent of the public authorities. Interstate Independent Tel. & Tel. Co. v. Toton of Towanda, 221 Ill. 299.

Instruction 3, given on behalf of appellees, stated that the only evidence in the case that there had been a dedication of the strip in controversy was such as arose from the proof of user by the public. This instruction was erroneous because it excluded from the consideration of the jury other evidence introduced which tended to show a dedication on the part of Mr. Havens.

Instructions 1, 2, 5, 8, 9, 10 and 11, given for appellees, all substantially involve the same proposition of law and may be considered as a group. The first instruction is as follows: “The Court instructs you that the burden is upon the plaintiff to prove by a preponderance of the evidence, first, the strip of land where the poles in question are located, is a part of the highway and, second, that the poles in question are a material obstruction to the use of said highway in its usual and customary manner, and if they fail to prove either of these matters, by a preponderance of the evidence, then your verdict should be for the defendant.”

The fifth instruction is as follows: ‘ The Court instructs you that the fee simple title to all of the highway from the Main street road, to the corporate limits of the Village of Hudson, is in Mrs. Carrithers and the heirs of her body, and that the only right of the public therein, is the right to travel over so much of it, as has been dedicated to the public as a highway, and that the owners of the fee may make any use of said highway that they may wish so long as such use does not interfere with the rights of the public to travel over said highway in the usual and customary manner. ’ ’

The other instructions mentioned announce the same principles stated in the first and fifth instructions in various different ways and qualify the word “obstinetion” by the words, “material,” “substantial” and “actual.”

In the case of Town of Old Town v. Dooley, 81 Ill. 255, it is stated: “The public only acquired an easement in appellee’s land by the location of the highway, with the rights and incidents necessary to its enjoyment as a highway; and, before the enactment of the statute, under the principles of the common law, he retained the fee simple title in the land and the exclusive ownership of everything connected with the soil, for every purpose not incompatible with the public right of way. So, also, he might make any and all uses of the land to which it could be applied, and all profits which could be derived from it, consistently with the enjoyment of the easement. Washburn on Easements, pp. 159-196; Angell on Highways, secs. 302, 303.” The case of Town of Palatine v. Kreuger, 121 Ill. 72, holds: “Where a highway is located over lands outside of an incorporated town, the public acquires only an easement of passage, with the rights incident thereto, while the owner of the land over which the road is laid retains the fee and the ownership of everything connected with the soil, for all purposes not incompatible with the public right of way. Town of Old Town v. Dooley, 81 Ill. 255; Dillon on Mun. Corp. sec. 544.” In Postal Tel.-Cable Co. v. Eaton, 170 Ill. 513, it is said: ‘ That the owner of the land upon which a public highway is laid out has the exclusive right to the soil, subject to the easement of the right of travel in the public, and the incidental right of keeping the highway in proper repair for the use of the public, is so well established that the citation of other authorities is not deemed necessary.” This ease also holds that the owner of the fee in the highway has a right of action in ejectment to oust a telephone company from erecting poles in a highway without first making compensation. The same rule is reiterated in Moore v. Gar Greek Drain. Dist., 266 Ill. 399; Tacoma Safety Deposit Co. v. City of Chicago, 247 Ill. 192. In the case of Interstate Independent Tel. & Tel. Co. v. Town of Towanda, 221 Ill. 299, the telephone company served notice upon the Highway Commissioners of the Town of Towanda that it proposed to erect telephone poles through said town over and along certain highways specified, and requested the commissioners to designate the portion of said town in which it should place its poles. The commissioners served the telephone company with notice to the effect that they protested against the use of the highways of the town by the telephone company, but in case it did place any poles in the highways they must be placed immediately adjoining the fences upon the lines of said highways. The telephone company constructed six miles of telephone lines consisting of poles, cross-arms and wires along the highways in said town. The question in issue was whether the poles so erected interfered with the proper uses of the highways by the public. The court held this to be a question of fact, and further held that if the commissioners having jurisdiction over a public highway specify the portion of highway to be used by a telephone company and the latter occupies that portion so specified, it will not be liable to a penalty for obstructing the highway, but if the commissioners have not specified what portion may be so used, “it clearly acts at its peril, and is bound to so place its lines as not to interfere with the use of said highway by the public, and if its lines are so placed as not to interfere with the use of the highway by the public, it is liable to the penalty prescribed by the statute for obstructing a public highway.” In the case of Nelson v. Fehd, 203 Ill. 120, the plaintiff sued the defendant for unlawfully and negligently digging a ditch in and along the north side of a public highway by reason of which the buggy of plaintiff, who was riding therein on a dark night along the side of the highway, slipped into the ditch causing him to be thrown therefrom and injured. The defense was that the defendant was the owner of the fee in the highway, that it was not unlawful for him to dig the ditch along the side thereof and that the same could not be considered an obstruction therein. The court held that whether this ditch was an obstruction was a question of fact for the jury to decide, and uses the following language: “The appellant also discusses the question of the liability incurred by the defendant in digging a ditch on the public highway the fee of which was in himself. The appellant had a right, upon this highway, to do that necessary for the drainage of his lands, provided he did not interfere with the use of the highway, rendering it less safe, useful or convenient for the public. (Postal Telegraph Co. v. Eaton, 170 Ill. 513; Elliott on Roads and Streets, 519.) If the ditch dug by appellant was an obstruction on this highway when his acts were unlawful. (Rev. Stat. chap. 121, sec. 71; Town of Canoe Creek v. McEniry, 23 Ill. App. 227; Boyd v. Town of Farm Ridge, 103 Ill. 408.) The finding of the jury was that the ditch was an obstruction, and that finding we are not authorized to disturb.”

The conclusions to he drawn from a consideration of the cases in this State is that the owner of the fee in a public highway outside of an incorporated city or village has a right to use said highway for any purpose of Ms own not incompatible with the free, safe and convenient use thereof by the public for public travel thereon, and that whether a use thereof in a particular manner by the owner of the fee therein interferes with the free, safe and conveMent use thereof by the public, and thereby becomes an obstruction, is a question of fact for the jury to determine. Such obstruction is not limited to an “actual,” “material” or “substantial” obstruction unless these words are-defined to mean any obstruction which interferes with the free, safe and conveMent use of the highway for public travel. The instructions as given were therefore erroneous. The judgment is reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mb. Presiding Justice Eldredge

license: Public Domain

text:
    Elizabeth Kackley, Appellee, v. Central Illinois Traction Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pleading, § 32

      —what constitutes surplusage in declaration for personal injuries. An allegation of due care in an action by a passenger in a public taxicab against a street railroad company for damages for personal injuries due to a collision is mere surplusage, and need not be proven.

      Appeal from the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Elizabeth Kackley, plaintiff, against the Central Illinois Traction Company, defendant, to recover damages for personal injuries sustained as the result of a collision between a street car operated by defendant and a public taxicab in which plaintiff was riding. From a judgment for plaintiff for $1,000, defendant appeals.
    Vause, Hughes & Kiger, for appellant.
    Henley & Henley, Dyas & Dyas and O’Hair & Rhoads, for appellee.

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

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

   Mb. Presiding Justice Eldredge

delivered the opinion of the court.

2. Pleading, § 32 —what constitutes surplusage. Surplusage comprehends whatever may be stricken from the record without destroying the right of action, or the charge, on one hand, or the defense on the other.

3. Negligence, § 112*—when negligence of driver of public taxicab may not be imputed to passenger. The negligence of the chauffeur of a public taxicab, which collided with a street car, in operating his cab without a license, and in violating an ordinance in stopping his car to receive a passenger on the wrong side of the street, cannot be imputed to the passenger.

4. Street railroads, § 91*—when occupant of public taxicab not guilty of contributory negligence. Where an occupant of an inclosed public taxicab has no means of communication with the chauffeur and does not know of his intention to back upon street car tracks and thereby place her in danger of collision she cannot be deemed guilty of contributory negligence.

5. Street railroads, § 113*—when evidence incompetent as being too remote. In an action against a street railroad for damages for personal injuries sustained as the result of a collision between the taxicab in which plaintiff was riding and a' street car, evidence that the conductor was slightly intoxicated an hour and a half to two hours before the accident, held improperly admitted as being too remote where there was no evidence that he was in a like condition at the time of the accident.


author: Mr. Presiding Justice Eldredge

text:
    In the Matter of the Estate of Llewellyn Davies, Deceased. A. C. Rice, Administrator, Appellee, v. John W. Davies et al., Appellants.
    (Not to he reported in full.)
    Appeal from the County Court of Morgan county; the Hon. William E. Thomson, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.

      Abstract of the Decision.
    1. Executors and administrators, § 236

      —when claims barred. Where more than one year has elapsed after letters of administration are granted, all claims not filed at the date of the filing of a petition for leave to sell land to pay debts are barred.
    2. Executors and administrators, § 402*—what unfiled claims, need not be set out in petition for leave to sell real estate. It .is unnecessary to set out in a petition by an administrator for leave to sell real estate to pay debts an estimate of the amount of just claims to be presented, where all claims not filed are barred because more than one year has expired between the date of the granting of letters of administration and the filing of the petition.
    3. Executors and administrators, § 420*—who need not be made parties to petition for leave to sell real estate. Persons who have filed claims against an estate need not be made parties to a petition by an administrator for leave to sell real estate to pay debts.
    4. Appeal and error, § 876*—what abstract must contain. The question whether a verification to a petition by an administrator for leave to sell real estate is properly verified cannot be considered on appeal by bill of review, where the verification nowhere appears in the abstract.
    5. Executors and administrators, § 29*—who may not nominate

      administrator. Nonresidents may not nominate an administrator nor act as such.

      Statement of the Case.
    Petition by A. C. Rice, administrator of the estate of Llewellyn Davies, deceased, complainant, against John W. Davies et al., defendants, for leave to sell real estate. After a judgment ordering the sale of certain real estate for the payment of debts, defendants filed a petition in the nature of a bill of review to secure the setting aside of such decree.
    Neiger & Gordley, for appellants; J. J. Neiger, of counsel.
    Julian P. Lippincott, Bellatti, Bellatti & Moriarty and Kirby, Wilson & Brockhouse, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

6. Executors and administrators, § 41 —how appointment of administrator may be attacked. The granting of letters of administration to a person is conclusive of his authority as administrator until set aside or annulled in a direct proceeding, and it consequently cannot be attacked in a proceeding by the administrator to sell real estate to pay debts, as such latter proceeding is collateral to that for the appointment of an administrator.

7. Executors and administrators—when nonresidents properly served by publication of notice and mailing of notices. Nonresident parties to a proceeding by an administrator to obtain leave to sell real estate to pay debts who are duly served by publication and the mailing of notices in conformity with statute are properly served, and it is unnecessary that the known attorneys of such parties be notified of such proceeding.

8. Executors and administrators, § 426*—when decree in proceeding by administrator to obtain leave to sell land to pay debts sufficient. A decree in a proceeding by an administrator to obtain leave to sell real estate to pay debts which was in the language of the statute, held not open to objection because it found that the deceased died “having claim or title to the premises sought to be sold,” and did not find the actual title to the lands he died seized of.


text:
    A. T. Hooper, Appellee, v. Kaskaskia Live Stock Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by A. T. Hooper, plaintiff, against Kaskaskia Live Stock Insurance Company, defendant, to recover for the loss of two horses claimed to have been insured by defendant. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when finding of trial court not disturbed as unsupported by evidence. Where a finding of a trial court is based upon conflicting evidence, it will not be disturbed on appeal as unsupported by the evidence, even though the evidence might support a finding to the contrary.
    2. Insurance, § 439*—validity of provision in policy for notice of illness of animal. A provision in a policy of live stock insurance requiring the insured to notify the company without delay of the illness of the animals insured is a reasonable one.
    3. Insurance, § 436*—what is effect of failure to give notice of illness of animal. Where an application for live stock insurance expressly stated that the policy issued thereon should be based upon information and answers contained therein, and the applicant in his answer to a question in the application agreed to notify the company at once in case 'of sickness or accident, and substantially “the same provision was contained in the policy, but the company received no notice of the sickness of the horses insured until after their death, held that as a result of the failure to give the required notice, the insurer had the right to return the premium and declare the policy void, and that it was immaterial whether there was a lawful delivery of the policy in question.
    Chapee, Chew & Baker, for appellant.
    R. C. Neff, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Edward B. Taylor and William B. Taylor, trading as Taylor Brothers, Appellees, v. Charles T. Foley, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Principal and agent, § 8

      —when evidence insufficient to show agency. In an action by a commission merchant against the maker and payee of drafts drawn on the plaintiff for fraud and deceit in wrongfully and fraudulently procuring plaintiff to pay such drafts, evidence held sufficient to sustain a finding that the maker was not the agent of the plaintiff for the purpose of buying horses for him, and that he had no authority to execute the draft in question.

      Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1915'.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action on the case by Edward B. Taylor and William B. Taylor, partners, trading as Taylor Brothers, plaintiffs, against James Berry and Charles T. Foley, defendants, for fraud and deceit in wrongfully and fraudulently procuring plaintiffs to pay three drafts drawn on them, each executed by Berry and payable to the order of Foley, for the payment of horses purporting to have been bought by said Berry from Foley. From a judgment in favor of plaintiffs, defendant Foley alone appeals.
    Lindley, Penwell & Lindley, W. H. Clinton and Charles Troup, for appellant.
    Acton & Acton, for appellees.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

2. Bills and notes, § 440 —when evidence sufficient to show fraud by payee of draft. In an action by a commission merchant against the maker and payee of drafts drawn on the plaintiff, where it appeared that the maker had authority to buy horses but was required to ship them to the plaintiff, who would sell them and credit the maker with the proceeds thereof, that the maker had authority to draw a draft for the purchase price of horses so shipped and for incidental expenses incurred in the buying and shipping of them, that the maker gave the payee such drafts in payment for checks for the ostensible purpose of buying and paying for horses purchased from a party from whom he claimed to have no authority to buy, and that he used the proceeds of such draft for his own personal purposes, evidence held sufficient to sustain a finding that the payee was guilty of fraud and deceit.

3. Fraud, § 6*—what constitutes. It is a fraud in law if a party makes representations which he knows to be false and injury ensues, although the motive from which the representations proceeded may not have been bad, and it is unnecessary that they be made with a design or intention to cause injury to the other party.


text:
    The People of the State of Illinois, Defendant in Error, v. Lyman Moore, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Christian county; the Hon. Charles A." Prater, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Lyman Moore, defendant, for the sale of intoxicating liquor in anti-saloon territory. To review a judgment entered against him, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Witnesses, § 243

      —what constitutes violation of right against self-incrimination. Service of notice and a subpoena duces tecum, calling for the production, by one on trial for selling intoxicating liquor in anti-saloon territory, of an internal revenue special tax stamp issued to a society of which he was president, held a violation of the defendant’s constitutional rights as guarantied by section 10 of article II of the Constitution, providing that no person shall be compelled to give evidence against himself.
    2. Intoxicating liquors, § 140*—when introduction of notice and subpoena duces tecum in evidence error. Introduction in evidence of a notice and subpoena duces tecum, served on the defendant in a prosecution for illegal sale of liquor in anti-saloon territory, calling for the production of an internal revenue special tax stamp issued to a society of which the defendant was president, held error.
    3. Intoxicating liquors, § 137*—when testimony of reporter in former case inadmissible. In a prosecution for selling intoxicating liquor in anti-saloon territory, the admission of testimony of a reporter, who had reported a trial of a case between the State and a certain party, that the defendant in the present case had testified that the defendant in that case was working for him, held error in the absence of preliminary proof showing how such testimony could have been competent, relevant or material.
    John E. Hogan and E. E. Dowell, for plaintiff in error.
    Harry B. Hershey, for defendant in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Abraham L. Heldman, Appellee, v. Orville J. Gunnell, Appellant.
    1. Bills and notes, § 74

      —what does not constitute material alteration of note. The detachment from a negotiable promissory note of a statement that certain stock had been deposited with the payee as security for payment thereof, held not to change the tenor or effect of such note or the liability of the maker thereon, and not an alteration as would prevent a recovery by the payee.
    2. Bills and notes, § 74*—what constitutes material alteration of note. The detachment from a promissory note, by the payee thereof, of a contemporaneous agreement whereby the maturity of the note was to be extended on the payment of certain monthly instalments thereon by the maker, held a material alteration of the note justifying opening of a judgment entered thereon by confession.
    3. Bills and notes, § 56*—what constitutes failure of consideration for note. Failure of the payee of a promissory note to carry out an agreement, attached thereto, to deliver to the maker certain shares of stock, for which such note was given in payment, held to amount to a total failure of consideration.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Frank O. Hanson and George K. Foster, for appellant.
    Ralph J. Heffernan, for appellee; M. A. Brennan, of counsel.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On November 28, 1914, appellee caused a judgment by confession on a judgment note to be entered in bis favor against appellant for the sum of $2,107.66 and costs. The note is executed by appellant and is dated November 4, 1914, payable on or before six months after date to the order of appellee for the principal sum of $2,000 with interest at the rate of six per cent, per annum after date and interest at the rate of seven per cent, per annum after maturity until paid. The note also includes the usual power of attorney to confess judgment thereon, together with costs and five per cent, attorney’s fees. Appellant made a motion to open up the judgment, for leave to plead and to stay execution, which motion was overruled, to reverse which action of the court this appeal is prosecuted.

In support of appellant’s motion he filed two affidavits executed by himself, in which he states that at the time of the execution of the note there was also executed concurrently therewith two written agreements which were attached thereto and made a part thereof, the first of which was executed by appellant and states that he has delivered to appellee to secure the payment of said note one certificate of twenty shares of the capital'stock of the All Ready Box Company of the market value of $2,000, and authorizes appellee or his assigns to at any time before or after the maturity of said note, if in the judgment of appellee or his attorneys said collateral depreciates in value, to sell the collateral, or any part thereof, at public or private sale and apply the proceeds upon said note, etc. The second agreement attached to the note is as follows:

“November 4th, 1914. Mr. Orville J. Gunnell, Dear Sir: Having this day sold you my twenty shares of the capital stock of the All Ready Box Co. for the sum of Two Thousand Dollars ($2,000.00) and for which I have received your collateral note of even date herewith in the sum of Two Thousand Dollars ($2,000.00), I hereby agree to extend the time for the payment of the balance due on said note from month to month so long as you pay the sum of Fifty Dollars ($50.00) on the 10th of each and every month and the interest due on said note semiannually from the date hereof. Tours truly, (Signed) Abraham L. Heldman.”

The affidavits further show that the note was given in full payment of the twenty shares of capital stock of the All Ready Box Company, which appellant had bought of appellee, and that by the terms of said agreement was to have or cause to be issued to affiant a certificate.of said stock, but the same was to be held by appellee as a collateral security described above; that both of these .contemporaneous agreements, executed concurrently with the note, attached thereto and made a part thereof, were detached from the note after the execution thereof without the knowledge or consent of appellant, and that the judgment was entered upon the note alone, without the accompanying agreements attached thereto; that the note thereby became materially and fraudulently altered, and is void and without effect.

The affidavits further set forth that appellant did not keep and perform his agreement to deliver to appellee said certificate of twenty shares of stock of the All Ready Box Company, neither has he applied to said company to have said certificate of stock issued in his name, and that no such certificate of stock has ever been issued to appellant and that he has never received from appellee, or any one for him, any consideration or anything of value in consideration for the execution and delivery to appellant of the above described note and agreements.

The first point made by appellant is that by detaching the statement as to the deposit of the stock as collateral security, a material alteration was made in the note because it changed the character thereof from a nón-negotiable note to a negotiable one. A note is not made non-negotiable by a statement attached that the maker has deposited with the holder, as collateral security, a certificate of stock. Section 5, Negotiable Instruments Act of 1907 (J. & A. ¶ 7644); Mumford v. Tolman, 157 Ill. 258. And it is a general rule that the acceptance of collateral security has no effect whatever on the legal rights and liabilities of the parties, as respects the original debt, either to impair or suspend the right of action thereon. Wilhelm v. Schmidt, 84 Ill. 183; Furness v. Union Nat. Bank, 147 Ill. 570. It follows that the detachment of the statement in regard to the collateral security did not change the tenor or effect of the note or the liability thereon in any manner and cannot be considered as an alteration of the note.

A more serious question is presented, however, in regard to the detachment from the note of the written agreement executed by appellee. It has been held from the earliest cases in this State that where contemporaneous agreements are entered into pertaining to the same subject-matter they must be construed together, and this principle applies to notes as well as to any other contract. In the case of Davis v. McVickers, 11 Ill. 327, it was held: “The notes sued on and the agreement set forth in the plea, having been executed at the same time, between the same parties, and respecting the same subject-matter, must be construed together, and considered as forming but one contract. Bailey v. Cromwell, 3 Scammon, 71; Duncan v. Charles, 4 ib. 561.”

In the case of Bradley v. Marshall, 54 Ill. 173, it was stated: “We do not concur in the objections taken to this plea. The note, and the written agreement as to the mode in which it should be payable, having been executed together, are to be construed as one agreement, and the plea shows performance, or readiness to perform, on the part of the defendant.” To the same effect are the following: VanZandt v. Hopkins, 151 Ill. 248; Gould v. Magnolia Metal Co., 207 Ill. 172; Bradshaw v. Combs, 102 Ill. 428; Commercial Register Co. v. Drew, 168 Ill. App. 347; Adams v. Long, 114 Ill. App. 277; Toledo Computing Scale Co. v. Tyden, 141 Ill. App. 21.

The original note was payable on or before six months after date. The agreement executed by appellee attached to the note extended the time of payment of the note by providing that $50 might be paid thereon each month. By this agreement the time for the payment of the note was extended to three years and four months. In 1 Daniels on Neg. Insts., page 178 it is stated:

“Where there is a contemporaneous written contract affecting the terms of a bill or note, it is to be construed together with the bill or note, in so far as each may be given effect and there is no repugnancy between them” and on page 179 the same author says: “The time of payment as fixed in the note may be controlled by a separate written agreement made at the time of the execution of the note.” Kraft v. Hora, 159 Ill. App. 363.

It is apparent, therefore, that the written agreement signed by appellee, which was attached to the note and was executed concurrently therewith, became a part thereof and together with the note constituted the contract between the parties. Section 123 of the Negotiable Instruments Act of 1907 (J. & A. ¶ 7763) provides that when a negotiable instrument is fraudulently or materially altered by the holder without the assent of all the parties liable thereon, it is voided except as against a party who has himself made, authorized or assented to the alteration; and subsequent indorsers. Section 124 of the same Act (J. & A. ¶ 7764) states what alterations are material and provides, among other things, that any alteration which changes the time of payment, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration. The detachment of said agreement unquestionably changed the time and manner of the payment of the note and was a material alteration thereof. The note oh which the judgment was entered by confession was not the contract entered into by the parties, if the facts set out in the affidavits are true, and they must be taken as true in the consideration of the motion.

The affidavits further show that appellee agreed to cause a certificate for the twenty shares of stock to be issued to appellant which he has failed to do, and that there is a total failure of consideration.

For the reasons given, the judgment of the trial court is reversed and the cause remanded with directions to sustain appellant’s motion to open up the judgment and for leave to plead.

Reversed and remanded with directions.


text:
    Carl Hinton, Appellee, v. Rudolph Muhlman, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Champaign county; the Hon. B’ean'klim' H. Boggs, Judge, presiding. Heard in this court at the October term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Affirmed on remittitur; otherwise reversed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action for assault and battery by Carl Hinton, plaintiff, against Rudolph Muhlman, defendant. From a judgment for plaintiff, defendant appeals.
    The plaintiff, who owned half of a quantity of corn stacked on a field belonging to the defendant, which was under lease to the plaintiff, was told by the defendant not to remove it until he had husked it all. In attempting to enter the field to remove the corn, the defendant struck him on the head with a pitch fork.
    Plaintiff fell to his knees, got up, ran towards and past the wagon and was followed by defendant until the latter got to the rear end of the plaintiff’s wagon, when he reached into the wagon with the pitchfork and by means thereof drew out a gun. When plaintiff saw that defendant had taken the gun out of the wagon he stopped running, held up his hands and asked not to shoot him. Defendant discharged the gun into the ground, handed it to a farm hand and walked away from the scene of the trouble. Plaintiff attempted to drive his team into the field, but fell to the ground and was talcen back to his house by the farm hand. He became unconscious and delirious and was confined to his bed for several days.
    Abstract of the Decision.
    1. Assault and battery, § 13

      —when lease admissible in evidence. In an action for assault and battery where the defendant pleaded in justification that the plaintiff was attempting a trespass upon the defendant’s premises, held that an unexpired lease of such premises from the defendant to the plaintiff was properly admitted in evidence.
    2. Damages, § 175*-—when financial condition of defendant may be considered. In cases where exemplary damages are recoverable, the pecuniary resources and financial condition of the defendant are elements for the jury to consider in estimating and assessing damages.
    3. Assault and battery, § 13*—-when evidence as to amount and value of real estate owned by defendant admissible. In an action for assault and battery, evidence showing what real estate the defendant owned and the value thereof, held properly admitted on the question of exemplary damages though not accompanied by evidence showing what mortgage indebtedness it was subject to, as that was a matter of proof for the defendant.

      Herrick & Herrick and Green & Palmer, for appellant.
    Dobbins & Dobbins, for appellee.

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

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

4. Assault and battery, § 22 —When exemplary damages authorized. When an assault and battery is made wantonly and wilfully, or maliciously, or with undue violence, exemplary damages are authorized.

5. Assault and battery, § 1*—when malice is inferred. Malice is inferred where an assault and battery is committed with a reckless disregard of the rights of the person assaulted.

6. Assault and battery, § 15*—when justification for assault question for jury. In an action for assault and battery upon one attempting to enter a field of the defendant, the question whether the defendant’s being scratched by barbed wire while the plaintiff was attempting' to open a gate amounted to an assault upon the defendant justifying the latter’s assault, held for the jury.

7. Assault and battery, § 22*—when evidence of financial resources of defendant admissible. Where the defendant, in an action for assault and battery, struck the plaintiff on the head with a pitch fork while he was attempting to enter a field which he had leased from the defendant, evidence held to tend to show wantonness and maliciousness on the part of the defendant, so as to render the admission of evidence of the defendant’s financial resources proper on the question of exemplary damages.

8. Instructions, § 159*—when instruction not erroneous. An instruction as to the measure of damages in an action for assault and battery, held not erroneous in not defining an unlawful assault where the term was adequately defined in other instructions.

9. Instructions, § 110*—when erroneous as inapplicable to pleadings. An instruction permitting a recovery for the amount of a physician’s bill, which the plaintiff had not paid but which he had become liable for, is erroneous where the declaration contains no allegation that the plaintiff became liable for any such damages.

10. Damages, § 190*—when must be proved by direct and positive evidence. When damages are of such a character as to be susceptible of being proven by direct and positive evidence, such proof must be made, showing the exact amount thereof.

11. Appeal and error, § 1709*—when defects in instructions waived. Defects in instructions not complained of on appeal will be considered waived.

12. Appeal and error, § 1655*—when error in instruction on damages curable by remittitur. Error in an instruction stating that damages may be allowed for the amount of a doctor’s bill incurred by the plaintiff but not paid, there being no allegation in the complaint covering such item, may be cured by ordering a remittitur of such amount, where it is definitely shown by the evidence.

13. Assault and battery, § 17 —when instruction as to insufficiency of evidence to support plea of justification proper. In an action for assault and battery, an instruction that there was no evidence to support the defendant’s plea of justification on the ground that the plaintiff was unlawfully attempting to enter the defendant’s field, held proper on the evidence.

14. Appeal and error, § 1560*—when refusal of instructions harmless error. Where a party litigant offers an unreasonable number of instructions, judgment will not be reversed for an error in refusing to give some of them if, upon consideration of those given, it can be seen that the jury were fully informed as to the law of the case.

15. Assault and battery, § 13*—when evidence of prior threats inadmissible. In an action for assault and battery, evidence of prior threats of the plaintiff towards the defendant, held properly excluded in the absence of evidence showing that there was any attempt to carry them into execution at the time of the assault.


text:
    William F. Kurtz, Appellee, v. John Evans, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of DeWitt county; the Hon. Frederick C. Hill, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by William F. Kurtz, plaintiff, against John Evans, defendant. From a judgment for plaintiff, defendant appeals.
    Herrick & Herrick, for appellant.
    Edward J. Sweeney, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 37 —when broker not procuring cause of sale. Where, in an action for commissions for the sale of the defendant’s farm, there was no contradiction of the purchaser’s testimony that he, when told by the plaintiff that the defendant’s farm was for sale, knew it was for sale and so stated to the plaintiff, and uncontradicted evidence showed that the plaintiff did nothing further in connection with the sale, held that the plaintiff was not the efficient or procuring cause of the sale and not entitled to commissions.

2. Evidence, § 222*—when evidence inadmissible as hearsay. In an action for real estate commissions, testimony of the plaintiff that the defendant’s son stated, out of the presence of the defendant, that the defendant would treat the plaintiff right in the matter of paying him commission, held improperly admitted.

3. Trial, § 133*—when remarks of counsel to jury improper. In an action for breach of contract, a remark to the jury by counsel for the plaintiff that the defendant was a business man, successful and rich, held improper and vicious.


text:
    John H. McGlothlin, Appellee, v. Herman Peters, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at, the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by John H. McGlothlin, plaintiff, against Herman Peters, defendant, for assault and battery. From a judgment for plaintiff, defendant appeals.
    The plaintiff claimed that while standing in a gap in a hedge along a highway, he was struck on the head by a bottle thrown by the defendant from a passing automobile.
    Abstract of the Decision.
    I. Appeal and error, § 1236

      —when objection as to lack of evidence may not be raised on appeal. Where the sole defense to an action for assault and battery was that the defendant did not commit the act alleged to have constituted the assault and battery, held that the contention, that a judgment for the plaintiff could not be sustained because there was no evidence of intent to commit the act, could not be raised for the first time on appeal, though the declaration did not allege negligence.
    2. Assault and battery, § 15*—when malice is question for jury. In an action for an assault and battery, the question of malice is for the jury.
    3. Assault and battery, § 14*—when evidence sufficient to show malice. In an action for assault and battery, malice may be inferred from evidence showing that the act complained of was committed with a wanton, wilful or reckless disregard of the plaintiff’s rights.
    4. Assault and battery, § 22*—when instruction on punitive damages improper. The mere throwing of an empty bottle from a passing automobile into a hedge along the side of a country highway, where no persons are in view or where the one throwing the bottle might not reasonably expect any person to be, held not such an unlawful act as to make it wanton or malicious, or a reckless disregard of a person struck therewith, so as to warrant the giving of an instruction on punitive damages.
    H. H. Willoughby, for appellant; Edward C. Knotts, of counsel.
    Robert H. Patton, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    In the Matter of the Estate of William W. Dyer, Deceased. William A. Dyer et al., Appellants, v. William E. Hall, Administrator, Appellee.
    (Not to he reported in full.)
    Appeal from the County Court of Morgan county; the Hon. Geobge W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Petition by William E. Hall, administrator, de bonis non with the will annexed of the estate of William W. Dyer, deceased, petitioner, against William A. Dyer et al., defendants, to sell the testator’s real estate for payment of debts. From a decree for petitioner, defendants appeal.
    William W. Dyer died in February, 1880, leaving a widow, Harriet C. Dyer, several children, considerable property, both real and personal, and substantial debts both secured and unsecured. He also left a will. The only provisions in the will relating to his wife are as follows:
    (Clause Fourth) “My will is that my beloved wife, Harriet C. Dyer, have full control of the real estate for the purpose of raising my children on, while she remains my widow. In case she should marry, then in that case she is to be an equal heir with my children. ’ ’
    (Clause Sixth) “I furthermore will that after my debts are paid, and when my youngest child is twenty-one years of age, then my real estate be sold and an equal division be made between my children, and should my wife remain my widow, then in that case she is to hold her dowery right real estate during her natural life, but should she marry then in that case she is to have an equal division with my children as above stated.”

      Letters testamentary were duly issued on March 6, 1880, to Samuel Wood, the executor named in the will. In March, 1880, he sold the personal property. The May term, 1880, was fixed as the time for the presentation of claims, and due notice thereof was given by, the executor. One James Banson held a claim amounting with interest to more than $4,500, secured by a trust deed. This claim he presented to the County Court as a claim against the estate and the same was allowed. Out of the proceeds of the sale of the personal property the executor paid the preferred claims and a dividend on the seventh-class claims both secured and unsecured. By this means a trifle over $1,100 was paid on the Banson secured claim. Thereafter on June 28, 1882, Banson secured a decree of foreclosure and sale of the premises covered by his trust deed to pay the unpaid' portion of his claim. In that decree the court, having the will of the deceased and the trust deed before it and having jurisdiction of all the heirs, devisees and personal representatives of the deceased, decreed that the widow and minor children of the deceased were entitled to a homestead interest in the real estate of her husband, notwithstanding the provisions of those two documents, and caused the same to be duly set off and allotted. Under that decree all of the real estate of the deceased, except the' homestead so set off and about twenty-six acres of farm land, was sold and produced about $400 more than enough to pay the unpaid part of the Banson claim and the costs of the foreclosure proceedings. This surplus was turned over to the executor of the deceased to be by him handled in the due course of administration. There still being insufficient funds in the hands of the executor to pay the allowed claims, he filed his petition in the County Court for leave to sell the remaining twenty-six acres of land to pay debts. On April 4, 1883, that court entered its order setting off to the widow as her dower nine of the twenty-six acres mentioned, and ordered the executor to sell the remaining seventeen acres to pay debts. This order was carried out, and on May 26, 1883, he made a report to the County Court of the amount of funds in his hands and the amount of the unpaid debts and asked for an order of distribution of such funds and for an order relieving him from making further report until after the death' of the widow. The court approved the report, ordered the distribution, found that nothing further could be realized from which the unpaid claims could be liquidated until the termination of the homestead estate, and ordered that the executor be excused from making further reports “until the termination of the life estate of the widow.” The widow died November 18, 1913. The executor of her husband’s will had died many years before that time. On .February 24, 1914, the petitioner, having been appointed administrator de bonis non with the will annexed, filed his petition for leave to sell the lands previously set off to the widow as her homestead and dower interest, to pay the balance of the claims allowed against the estate, after due credit had been allowed thereon for all the moneys that had come into the hands of the executor for that purpose, whether the same had been so applied or not. The prayer of that petition was granted, and the lands in question were ordered sold.
    L. O. Vaught, H. W. English and I. Dyer, for appellants.
    Kirby & Wilson, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 482 —when binding upon heirs of estate. On petition by an administrator de bonus non to sell real estate, after termination of the widow’s life estate therein, for payment of debts of the estate, held that the heirs, who had been duly made parties to a proceeding • in which the widow’s dower had been set off to her by a decree which had been unchallenged could not object to the validity of such decree on the ground that the widow was allowed to take both under the will and the statute.

2. Executors and administrators. § 372*—what are remedies of secured creditors. A secured creditor of an estate may present his claim for allowance in the Probate Court where the estate is being administered, or he may resort to his security, or he may pursue both methods.

3. Executors and administrators—when claims are promptly paid. Where letters testamentary were issued a month after the deceased’s death and, within four months after the expiration of the time within which claims could have been presented, the executor reported the amount of money in his hands and obtained an order allowing liquidation of claims, so far as funds were available, and within a year thereafter filed another report showing balance due with interest on unpaid claims and balance on hand, and, as it appeared that no other funds could be realized until the death of the testator’s widow, obtained an order directing payment and excusing him from making further reports until that time, held that the contention that claims had not been promptly paid and that interest had been unnecessarily allowed to accrue was not tenable.

4. Executors and administrators, § 526*—when attorneys' fees properly allowed. Where the judge who entered a decree directing the sale of real estate and payment of claims of an estate was a member of a firm of attorneys acting for the executor, their fees were allowed to 'stand, there being no showing that they were exorbitant or more than other attorneys would have charged for the same service.

5. Homestead, § 94*—when reallotment of to widow not permissible. In the absence of a showing of fraud in the allotment of a homestead to a testator’s widow, held that it was not incumbent on creditors of the estate to have a reallotment made on the ground that the homestead was, at the time it was allotted, worth more than prescribed by the statute, or that it had subsequently increased in value, and to have the surplus applied to their claims.

6. Homestead, § 100*—what does not constitute abandonment of. Failure of a widow to live on a homestead, held not to amount to an abandonment thereof where she controlled it, rented it and had the proceeds from it.

7. Appeal and error, § 1466 —when admission of evidence harmless error. On a hearing on a petition for the sale of land of an estate to pay a balance on' claims due beyond payments ordered by a prior decree, the admission of evidence that claims so ordered paid by such decree were, in fact, paid, held harmless error, if any, since the payment of such prior dividends was not in question, and, in the absence of proof to the contrary, they are presumed to have been paid.

8. Executors and administrators, § 374*—when creditors not guilty of laches in failing to subject land to claims. An order of a Probate Court directing the payment by an executor of claims pro rata so far as funds were available, and excusing him from making any further report until the death of the- testator’s widow, to whom dower had been assigned in the testator’s land, held to present creditors, who relied and acted thereon, from being held guilty of laches in not proceeding, before the widow’s death, to subject the land to the payment of their claims.


text:
    Daniel B. Stewart, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Daniel B. Stewart, plaintiff, against Illinois Central Railroad Company, defendant, for damages resulting from a fire alleged to have been caused by sparks escaping from the defendant’s locomotive. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Railroads, § 919

      —What constitutes prima facie case of negligence in causing fire. In an action for damages resulting from a fire alleged to have been caused by sparks escaping from the defendant’s locomotive, evidence held to justify a finding that the fire was so caused and, under Hurd’s Rev. St. ch. 114, sec. 103 (J. & A. ¶ 8891), to make a prima facie case of negligence justitying the submission of the case to the jury.
    2. Trial, § 153*—when case should go to jury. When there is any evidence in the record from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments in the declaration had been proven, the case should go to the jury.

      At the request of the plaintiff the court instructed the jury as follows:
    “The Court instructs you that you should-not find a verdict for the plaintiff upon speculation, possibilities, or _ mere_ probabilities; the law requires that before plaintiff is entitled to a verdict the evidence must show by a preponderance,
    “First: That the fire was in fact caused by a spark or sparks emitted from defendant’s locomotive in question.
    “Second: That the defendant was negligent either in the equipment, repair, or management of the locomotive, and that such negligence, if any, caused it to emit sparks, and, that the sparks so emitted, started the fire which destroyed the property in question, and
    “Unless the plaintiff has proven each of these requirements by the preponderance of the evidence, your verdict should be for the defendant.”
    Charles L. Capen and De Mange, Gillespie & De Mange, for appellant; John G. Drennan, of counsel.
    Livingston & Bach and Barry & Morrissey, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

3. Railroads, § 919 —when burden of proof on railroad in action for negligence in causing fire. Where the plaintiff, in an action for damages caused by fire resulting from sparks escaping from the defendant’s locomotive, has made out a prima facie case of negligence under Hurd’s Rev. St. ch. 114, sec. 103 (J. & A. ¶ 8891), the burden of proof to overcome such a case is on the defendant.

4. Railroads, § 932*—when evidence sufficient to sustain verdict in action for negligently causing fire. A verdict for the plaintiff in an action. for damages resulting from fire caused by sparks escaping from the defendant’s locomotive, held justified by the evidence.

5. Railroads, § 941*—when instruction in action for negligence in causing fire not misleading. In an action for damages resulting from a fire caused by sparks escaping from the defendant’s locomotive, an instruction held not open to the criticism that it was likely to be understood by the jury to mean that the defendant was required to disprove negligence by the preponderance of the evidence, in view of another instruction that the plaintiff, in order to recover, was required to prove, among other things, by a preponderance of the evidence, that the defendant was negligent and that the damage resulted therefrom.

6. Damages, § 207*—when instruction on not erroneous. The rule that an instruction is bad which advises the jury that it is their duty to assess damages, if they believe certain facts to be established by the evidence, applies only to cases where exemplary damages may be recovered and not to those in which compensatory damages only are sought.

7. Appeal and error, § 1466*—when admission of evidence harmless error. In an action for damages for the destruction of property by fire, a question as to what was the total fair cash value of all the property destroyed, held improper but harmless error, where it amounted simply to a request to the witness to add up items of damage previously testified to by him, and the Verdict was for an amount substantially less than such estimate.


text:
    William O. German, Appellee, v. Supreme Tribe of Ben Hur and Walter Buckel, Appellants.
    1. Mandamus, § 154

      —when answer in proceeding to compel reinstatement of member of fraternal benefit society sufficient. Where it appeared from the averments of the answer, in a mandamus proceeding to compel the reinstatement of a member of a fraternal benefit society, that the relator, on becoming a member of the society, had agreed to be bound by its constitution and bylaws which required, among other things, that members submit to its duly constituted tribunals and abide by the decisions thereof, and that a tribunal provided by the laws of the society for that purpose as set out in the answer, having before it the relator and a complaint charging him with a violation of the laws and rules of the society, proceeded in the manner provided by the laws of the society, found him guilty, expelled him from the society and canceled his benefit certificate, held that a demurrer to the answer was improperly sustained, it appearing that the action of the society had been conducted in accordance with the rules and regulations provided in such a case.
    2. Insurance, § 856*—when decision of internal tribunal binding. The courts will not interfere with the merits of a controversy between a fraternal benefit society and one of its members where rules and laws of such society governing such controversies, to which the member has agreed to be bound on becoming a member, have been duly observed.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Busby, Weber, Miller & Robinson, Sidney S. Breese and Arthur J. Donovan, for appellants.
    E. S. Smith, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from an order entered in the Circuit Court of Sangamon county in a mandamus proceeding wherein William O. German was relator and appellants were respondents, in which that court declared null and void certain proceedings had by the executive committee of appellant, the Supreme Tribe of Ben Hur, whereby the relator, German, who had theretofore been a member of that society, was expelled therefrom, and ordered that he be reinstated as such member and that appellant Walter Ruckel, as collector of dues for the said society, accept dues lawfully assessed against the relator as a member of the society.

The substance of the petition for mandamus is that the Supreme Tribe of Ben Hur is a corporation organized under the laws of Indiana with its principal office in that State, and was authorized to do and was in fact doing business as a fraternal life insurance society in Illinois, collecting funds therefor by assessment on its members; that the executive committee of the society had without justification or legal authority expelled German from the society and canceled his benefit certificate for $2,300, which he had theretofore held in that society, and that the said society and one Walter Ruckel, its collector of dues at Springfield, Illinois, had refused to accept from him further dues as a member of the society and treated his benefit certificate as no longer in force.

The answer of the society is very lengthy. It covers about fifty pages of the abstract. This answer is adopted by the other appellant, who adds some additional matter. The substance of these answers is that the relator while a member of the society had violated its laws and rules and had been tried for and found guilty of such offense by the regularly constituted forum of that society for that purpose, and had been duly and regularly expelled from the society, and that his benefit certificate had been properly canceled. The answers admit that the society was organized in the State of Indiana and had its principal offices in that State; that it was authorized to do business in Illinois as a fraternal beneficiary association, and shows that it has a lodge system with a ritualistic form of work and representative form of government, and that its officers reside outside of the State of Illinois. It contains either actually, or by proper reference, the charge or complaint on which he was tried, the evidence presented to the tribunal at the time of the trial, and the finding thereon, together with the order of expulsion. The by-laws, rules and regulations of the society, so far as the same were considered to pertain to the questions here involved, are also made part of the petition and answers.

To these answers a general demurrer was filed by the relator, and upon a hearing the same was sustained. Respondents elected to stand by their answers, whereupon the order above referred to was entered and this appeal followed. In the view we take of this case it is unnecessary to determine whether the courts of this State can exercise visitorial powers beyond the limits of the State so as to control the internal management of the appellant society, which is a foreign corporation. As we understand the holding of our Supreme Court in the case of Babcock v. Farwell, 245 Ill. 14, that question is one rather of policy than of jurisdiction, of power to enforce orders that might be made, rather than of the right to make them. We have therefore deemed it advisable to determine this case upon the merits of the controversy. ‘

The facts averred in these answers are admitted by the demurrer to be true. It is therefore admitted, for it is averred in the answers, that when German applied for membership in this society he signed a written application which contains, in part, the following:

“I hereby solemnly promise to abide by and conform to all the laws, rules and regulations of the Supreme Tribe of Ben Hur that may now be in force or that may hereafter he adopted.” * * * “I will use every reasonable effort to further the interests of the Order;”

that when he was initiated into the order he took an obligation which contained the following:

“I will to the utmost of my ability endeavor to promote the interests of this order”; which was taken and assented to by him; that the articles of association of the society provide:

“The legislation of this association shall be adopted only by its Supreme Tribe, which shall be the governing body”;

that the laws of Indiana under which this society was organized provide:

“The Supreme Lodge or other similar governing body shall have exclusive right to change, amend, or otherwise alter the by-laws of the association”; that the articles of association provide for an executive committee; that under the laws of the association that committee have power and authority to expel members who shall violate the general ritualistic laws of the society; that the laws of the society further provide.:

“The Executive Committee shall also have full power and authority to remove from any office he may hold and to reprimand or expel any member from the society for any one of the following causes:

“1. Where such member shall in a newspaper or by letter or circular, written or printed, or openly and orally, in a supreme meeting, of in the meeting of any local court, while in session, publish or use insulting language, reflecting upon an officer or member of the Supreme Tribe of Ben Hur, or any officer or member of a local court, whether such officer or member be present or not; or

“5. Where such member shall publicly and maliciously speak of and concerning any officer of the Supreme Tribe of Ben Hur, or any officer of his local court, any false and defamatory matter relating to his conduct as an officer of the Supreme Tribe, or as an officer of his local court”;

that the laws of the society provide how and by whom complaints and charges may be made against members and how, by whom and when the same can be heard or tried and that “the decision of the executive committee on such complaint shall be final and conclusive.” It is further so admitted that charges were duly made against German; that he was notified and appeared and defended, and that he was found guilty and expelled from the society, and his benefit certificate was canceled.

It therefore appears that the tribunal provided by the laws of the society for that purpose, having before it the relator and a complaint charging him with a violation of the laws and rules of the society, proceeded in the manner provided by the laws of the society, found him guilty, expelled him from the society and canceled his benefit certificate. That proceeding and the laws and rules of the society under which it was conducted relate to the internal government of the society. With the merits of the controversies concerning such matters, courts will not interfere. Nib-lack on Benefit Societies, sec. 113, page 217 (2nd edition). When German became a member of the society, he not only by implication agreed to abide by its laws, rules and regulations (Engel v. Walsh, 258 Ill. 99-103; Bostedo v. Board, of Trade, 227 Ill. 90), but he did so in express terms. In the Engel case the Supreme Court said:

“Courts will not interfere to control the enforcement of by-laws of such associations, but they will be left free to enforce their own rules and regulations by such means and with such penalties as they may see proper to adopt for their government.”

We think the answers of these appellants set up as a complete defense on the merits and that the demurrer to them should have been overruled.

The judgment of the Circuit Court is therefore reversed and the cause is remanded to that court for further proceedings not inconsistent with the views here expressed

Reversed, and, remanded,.


text:
    Laurens W. Cook, Appellant, v. Morris Augustus, Defendant.
    1. Statutes, § 152

      —when not repealed by implication. Repeals of statutes by implication are not favored, and both a prior and subsequent statute will remain in force unless they are so repugnant that they cannot operate together.
    2. Bills and notes, § 240*—when purchaser not holder in due course. A purchaser for value before maturity of a promissory note bearing on its face a statement that it is secured by chattel mortgage is not a holder in due course, and such note is subject to the defense of breach of warranty of the article for which it was given in payment.
    3. Bills and notes, § 440*—when evidence sufficient to show notice by purchaser of breach of warranty. In an action on a promissory note by a purchaser thereof before maturity, evidence held to justify a finding that the plaintiff had actual notice of a warranty of a machine for which the note was given in payment and that there was a breach of such warranty.
    4. Trial, § 195*—when peremptory instruction properly refused. A peremptory instruction for a defendant is properly refused where there is evidence fairly tending to support the plaintiff’s case.
    5. Evidence, § 134*—when secondary evidence inadmissible. Admission of secondary evidence of the contents of letters written by an adverse party’s attorney, held improper in the absence of any showing that an attempt had been made to produce the originals, though they were without the State.
    6. Evidence, § 275*—when letters improperly admitted in evidence. Where secondary evidence of letters was improperly admitted, held that originals of letters written in reply thereto, without sufficient proof of their genuineness, were improperly admitted on the theory that they were part of the correspondence.

      7. Appeal and error, § 1498*—when exclusion of evidence harmless error. Where a witness gave evidence identical with that which certain questions were intended to elicit, held that a ruling sustaining objections to such questions was harmless error, if any.
    8. Sales, § 273*—when notice of failure to conform to warranty waived. A seller, by acting on a notice that an article was not according to a warranty, which is different from the kind of notice required by the contract of sale to be given it, thereby waives such term of the contract.
    9. Bills and notes—when assignee not entitled to notice of breach of warranty of article. The assignee of a note secured by chattel mortgage is not entitled to notice of claimed defects constituting a breach of warranty of an article for which such note was given in payment, in order that such breach may be set up as a defense in an action by him on the note.
    10. Instructions, § 1*—when requested instruction properly refused. An involved, uncertain, argumentative instruction, not based on the evidence, held properly refused.
    Appeal from the County Court of Macon county; the Hon. John H. McCoy, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Crea & Housum, Whitley & Fitzgerald and Vail & Miller, for appellant.
    Cart, N. Weilepp and Redmon & Hogan, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee gave to the Rumley Products Company his promissory note in settlement for an oil tractor engine and some gang plows to be drawn by it, for use upon his farm. The note was secured by a chattel mortgage, and that fact was noted on the face of the note. Before maturity the note was transferred to appellant by indorsement on the back by the payee without recourse on it. Upon a trial of a suit brought on that note the jury found the issues for the defendant, and judgment was entered on the verdict against the plaintiff in bar of bis action and for costs. The defense interposed was breach of warranty of the machinery for which it was given. By chapter 95, paragraph 7602, page 4351, Jones and Addington’s Annotated Statutes of Illinois, it is provided: ‘ That all notes secured by chattel mortgages shall state upon their face that they are so secured, and when assigned by the payee therein named, shall be subject to all defenses existing between the payee and the payor of said notes the same as if said notes were held by the payee therein named. ’ ’ Appellant claims that the section quoted was repealed by implication by the Negotiable Instrument Act. Section 57 of that Act, paragraph 7696, page 4414, Jones and Addington’s Statutes, provides: “A holder in due course holds the instrument free from any defect of title of prior parties, and free from any defenses available to prior parties among themselves * * Then follows certain exceptions not involved in. this controversy. Section 52, paragraph 7691, page 4412, of the same statute, provides: “A holder in due course is a holder who has taken the instrument under the following conditions:

“1. That the instrument is complete and regular on its face.

“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact.

“3. That he took it in good faith and for value.

“4. That at the time it was negotiated to bim he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ’’

Section 58 of that same chapter, paragraph 7697, page 4416, Jones and Addington’s Statute provides “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the samé defenses as if it were non-negotiable * *

Repeals by implication are not favored, and both statutes will remain in force unless they are so repugnant that they cannot operate together. Chicago, B. & Q. R. Co. v. Doyle, 258 Ill. 624, 629 and 630.

The two acts under consideration are not inherently inconsistent. One applies to promissory notes taken in due course, the other applies to promissory notes on the face of which is written the words: " This note is secured by chattel mortgage.” As to such notes the statute creates the infirmity that they are subject to all defenses existing between the payee and the payor thereof. A purchaser of such a_ note does not take it in due course because he has notice of that infirmity. Under both statutes such notes are subject even in the hands of innocent purchasers to all defenses existing between the payee and maker thereof. The note sued on was not taken in due course and is subject to the defenses interposed to it in this case.

Besides that there was evidence tending to show that appellant had actual notice of the circumstances and conditions under which the note was given. Under the proper instructions given in this case the verdict of the jury for the defendant amounts to a finding that appellant had notice that there was a warranty of the machine for which the note was given and that there was a breach of such warranty, and we do not feel justified in holding that such finding is contrary to the manifest weight of the evidence.

Because there was evidence in the record fairly tending to support the plaintiff’s case when appellant’s motion for a peremptory instruction was made, it was properly overruled.

Secondary evidence was admitted, over objection, of the contents of certain letters claimed to have been written by appellee’s attorney to "the Burnley Products Company without any showing that any attempt had been made by appellee to obtain the originals of such letters. This was clearly error. It is not a sufficient answer to this contention that the letters were beyond the limits of this State and therefore the courts of this State could not compel their production. It may well be that if the Burnley Products Company had been requested to send appellee these original letters, it would have complied with that request.

Letters purporting to-have been written by the Bumley Products Company in answers to the letters above referred to as being improperly admitted, were also admitted in evidence, without sufficient proof that they were the genuine letters of that company. The theory of the court seems to have been that they were part of a correspondence and that they were sent by the company in reply to the letters written by appellee’s attorney above referred to. The contents of the letters in reply to which they wepe written not being properly in evidence, the replies were also improper, at least in the absence of proof of their genuineness.

Complaint is also made that the court sustained objections to certain questions asked by appellant of witnesses. If these rulings were erroneous the error was harmless, for an examination of the record discloses that in each case complained of the witness while on the stand gave the identical evidence the questions were put to elicit.

The court instructed the jury, in substance, that if the Products Company accepted and acted on a different kind of notice than that provided for in the contract, that the machinery was not according to the warranty, it thereby waived the terms of the contract in that particular. The instruction was correct. Dollarhide v. Hopkins, 72 Ill. App. 509; Avery Planter Co. v. Rigg, 56 Ill. App. 599; Jacobs v. Crumbaker, 67 Ill. App. 391.

Appellant complains of another instruction on the theory that he as assignee of the note was entitled to notice of the claimed defects constituting a breach of the warranty.' He cites no authority in support of that contention, and we believe none can be found. If there was no other reason why this contention could not be supported, a sufficient one is found in the provisions of the chattel mortgage act, heretofore referred to.

The refusal of one instruction offered by appellant is complained of. It is involved, uncertain, argumentative, not based on the evidence and was properly refused.

For the errors pointed out, the judgment is reversed and the cause is remanded for another trial.

Reversed and remaaided.


text:
    Jacob Cohen and Benjamin Cohen, Appellants, v. H. H. Devereaux and Chicago-Springfield Coal Company, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Morgan county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the April term, 1915.
    Appeal dismissed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Bill for an accounting filed by Jacob Cohen and Benjamin Cohen, plaintiffs, against H. H. Devereaux and Chicago-Springfield Coal Company, a corporation, defendants. Upon a hearing before the court upon exceptions to the master’s report recommending that the bill be dismissed, the court found that a partnership existed between the parties and referred the case to the master to state an account between them. To reverse such order of reference, the complainants appeal.
    Sheen & Galbraith and A, Jacobson, for appellants.

      Abstract of the Decision.
    Appeal and error, § 297

      —what does not' constitute final decree. An order of reference to a master in chancery for the purpose of having an account stated between the parties is not a final decree, and an appeal will not lie therefrom.
    J. Marshall Miller, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.