text:
    Edward Sanford v. William M. Miller.
    1. Private entry book. — In a suit against appellant by appellee to recover money claimed to have been paid to appellant’s son, appellee introduced in evidence his cash book, which contained an entry of moneys paid out by him, and such hook was taken by the jury to the jury room. „ Held, that the book was not admissible in evidence. It was not a book of account between the parties.
    2. Agency — Declarations.—When the acts of the agent will bind the principal, his declarations and admissions respecting the subject-matter will also bind the principal, if made at the same time and constituting a part of the res gestae.

      3. Instructions. — The instructions in this case are erroneous in ignoring the question of the son’s authority to receive the money.
    Appeal from the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed June 14, 1886.
    Messrs. Bull, Strawn & Rugee, for appellant;
    as to agent’s declarations, cited Lindblom v. Ramsey, 75 Ill. 246; Reynolds v. Ferree, 86 Ill. 570.
    Messrs. Jordan & Wing, for appellee.
   Welch, J.

This is an action, brought hv the appellee against the appellant, to recover two hundred dollars and interest thereon, which the appellee claims that he paid to the son of the appellant in April, 1881. Appellee had, through the appellant, procured a loan of the sum of 85,000, from the Equitable Trust Company, of Connecticut, in November, 1877, for which sum the appellee executed his note with coupon interest notes, together with trust deed on his land, to the Equitable Trust Company. The note, coupons and trust deed were all forwarded by the appellant to the trust company. Appellee had paid through the appellant the coupon interest notes to the Equitable Trust Company up to November, 1880, and this controversy arises out of the interest due May 1, 1881, for the sum of 8200. On the 1st of November, 1882, appellee paid to the appellant the interest coupon due May 1,1881, with interest thereon ; said payment was made under protest and claim that he had paid the same to the son of the appellant, for him, as the agent of the Equitable Trust Company, on or about the 28th of April, 1881, and this suit is for the recovery of the sum thus claimed to have been paid. There is no pretense on the part of the appellee that this payment was made to the appellant in person. The appellee, to successfully maintain his rights to recover this money from the appellant, was required to have shown by a preponderance of the evidence two propositions. First. That he made the payment of the money to the son of the appellant. Second. That the son was the agent, general or special, of the appellant, to receive the money for him. The appellee, as to the payment, states that it was made by him to the son. The son denies the payment to him. On the trial the appellee recovered a verdict for the sum of $259.44 against the appellant. Motion for new trial. Motion overruled and judgment on the \ erdict, from which this appeal is taken. Various errors are assigned as to the admission of improper evidence on the part of the appellee, and the rejection of proper evidence offered on behalf of the appellant. Also as to the giving of improper instructions for the appellee, and the refusal to give proper instructions for the appellant. We shall not undertake to examine the various exceptions taken as to the admissibility of the evidence in the order in which they were made. , The evidence shows that in the latter part of October, 1881, the father of the appellee left the amount due for November interest, 1881, with the appellant to send to the company, which he sent as directed, and received a letter on the 7th of November, 1881, from the company, stating that the interest had not been paid for May. Appellant thereupon wrote a letter to the appellee to call at his office. About November 12th appellant met appellee and told him that the company had written that his • May interest had not been paid. Appellee said, “ I told him I thought I paid it to him; he said no, that I did not pay it to him. I said, I guess I must have paid it to Herman.’ He said I could not have paid it to Herman, because Herman was not in the office at that time. I told him that I would have to think the matter over and look at my book, where I was in the habit of making my entries.” About a week afterward appellee stated that he came to the conclusion that he had paid it to the son of appellant, from examining his cash books. He says in regard to this book, it runs from the time he commenced doing business on the farm, and it contains, an entry on page 27, dated April 27, 1878: “Paid interest and exchange account; interest from Equitable Life and Trust Company, $200 ; don’t recollect to whom the money was paid, think it was defendant.” ¡¡Next entry is on page 49, dated October 29, 1878 : “Interest and exchange account of interest on equitable loan, $200.” Thinks this was paid to the defendant. “I can not tell from my book to whom or when I made ¡May payment of 1879; it is under date of April 27, 1879 ; have no recollections as to whom I paid any of the payments of May, 1878, ¡November, 1878, May, 1879, or who was present at either time, nor who was in the defendant’s office when the money was paid.” “I know that the defendant did not have the coupons when the money was paid ; I will not swear there was a single occasion when I paid interest into the office when the defendant was not present; before that time I claim I paid his son.” This payment is of date April 28, 1881, on page 101: “ Interest and exchange account Equitable Loan and Trust Company, $200.” This book was allowed to go to and he taken by the jury to their jury room with them, which was objected to, apd exception taken by the appellant. We know of no rule of law under which this book could go to tiie jury as an account book, and if not competent to go to the jury it was improper to be taken by them to their room. It was not a book of account between the parties. There is no account with the-}appellant in the book, or any reference to him in it. This book is not an account book, such as is admissible in evidence either at common law or under our statute, our statute not changing the character of a book, but changing the character of evidence necessary to its admission. It should not have been admitted in evidence. It is further insisted by counsel for the appellant that the court erred in allowing the appellee to testify as to a converI sation had with the son of the appellant, to whom the money ! is claimed to have been paid by the appellee, some seven months after the money is claimed to have been paid, the conversation not being in the presence of the appellant. “It is a general rule that when the acts of the agent will bind the principal, then his declarations and admissions respecting the subject-matter will also bind the principal, if made at the same time and constituting a part of the res gestee. Story on Agency, paragraphs 134-137; Greenleaf’s Ey., Vol. 1, paragraph 113; Linbloom v. Ramsey, 75 Ill. 246; Reynolds v. Ferree, 86 Ill. 570. It is further insisted by counsel for appellant that the court erred in permitting the written notice given by the appellee, that the money was paid under protest, to go to the jury. This was error ; appellee should not have been allowed to supplement his evidence by this written notice. It is also insisted that the court erred in giving the 4th, 6th, 7th and 8th of the instructions asked by the appellee.

4th. The court instructs the jury that if from the evidence in the case they believe that the plaintiff, W. M. Miller, entered in his book every other payment of interest made to E. Sanford, except the one in dispute, and that there is no dispute as to the correctness of every other entry, save and except the entry of the payment under date of April 28,1881, then and that in case it is for the jury to determine from all the evidence as to whether the plaintiff mistakenly or falsely made the entry, under date of April 28,1881, or whether such entry was made in truth and in fact, and is a true record of a payment actually made.”

Holding as we have that the book should not have been admitted in evidence, this instruction with the book out, would have no place in the case.

“ 6th. The court instructs the jury, that if yon believe from the evidence in this case • that the defendant, E. Sanford, permitted his son, E. H. Sanford, to take charge of his office in the city of Morris, and transact business with the defendant’s clients, and that the plaintiff found the defendant’s son in charge of the office and paid to him the money in controversy, then in law it is the same as if he paid the defendant himself.”

This instruction is in conflict with the rule announced by the Supreme Court in Reynolds v. Ferree, referred to supra, and should not have been given.

“ 7th. The court instructs the jury that if they find from a preponderance of the evidence in this case that on or near the 28tli day of April, 1881, the plaintiff, William Miller, handed E. H. Sanford, son of the defendant, two hundred dollars in money, and that such sum was received by said E. H. Sanford for his father, the defendant, and that said son was agent of his father in receiving such money, and that the same was to apply on interest due, or soon to fall due, upon a loan in favor of the Equitable Trust Company, and that no application was made of said money upon said loan, arid that later the plaintiff, William Miller, in order to secure a release of a mortgage given by reason of said loan, he, Miller, paid to the defendant, E. Sanford, two hundred and thirty dollars under protest, then your verdict must be for the plaintiff for such sum of money — two hundred and thirty dollars — with interest thereon at six per cent, per annum from the time of its payment to the present time.

“ 8tli. The court instructs the jury that if they find from the evidence in this case that the plaintiff was indebted to the Equitable Trust Company, of Connecticut, on or near the last of April or first of May, 1881, in the sum of two hundred dollars interest money; and that on or near that time he called at the office of the defendant for the purpose of paying said interest; and that he found in said office the young Mr. Sanford, and that he then and there paid to the young Mr. Sanford the said interest money, and that young Mr. Sanford told the plaintiff that it would be all right, he would give it to his father, meaning the defendant in this case, and if you further believe from the evidence that said young Mr. Sanford, in the receipt of said money, was acting for and in favor of his father, the defendant, and that said interest money was not paid on said mortgage indebtedness by said E. Sanford, and that afterward the plaintiff, in order to procure the release of said mortgage, paid to the defendant two hundred and thirty dollars, being the May payment of interest due on said mortgage, together with interest upon interest, and that the plaintiff at the time he made such payment protested against making the same, then your verdict must be for the plaintiff for such sum of two hundred and thirty dollars with interest thereon at the rate of six per cent, from the time of its payment to present time.”

The 7th instruction should have been so drawn as to require the jury to believe from a preponderance of the evidence that the plaintiff paid to the son of the defendant the money, and that when it was paid, that the son had authority from the defendant as his agent to receive it for him. That if the jury so believe from the evidence, they should find for the plaintiff. The- 8th instruction is also erroneous in ignoring the question of the son’s authority to receive the money. For the errors herein indicated this judgment is reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    I. R. Snow v. A. J. Wiggin.
    1. Compabisoh op handweitinu. — Where the question at issue was the alleged indorsement of a note by appellee, who denied the signature to be Ms, the admission ini evidence of another note and of appellee’s plea, in order to compare Ms handwriting in such papers with the alleged indorsement would be error.
    2. Ibstbucttoits. — Instructions must be based on the evidence. As there was no evidence to support the court’s modification of the instruction in question, and its effect was to mislead the jury and injuriously affect appellant, it was error to give it.
    Appeal from the Circuit Court of Bureau county; the Hon. Geo. W. Stipp, Judge, presiding.
    Opinion filed June 14, 1886.
    Messrs. Henderson & Trimble, for appellant.
    Messrs. Eckels & Kyle, for appellee.
   Welch, J.

This was a suit brought by the appellant against the appellee to recover the amount of a note executed by John Iglehardt, March 27, 1883, to the appellee, for the sum of twenty dollars, payable six months after date, without interest, if paid when due; if not paid when due, eight per cent, interest from the date of the note.” This suit is against the appellee as the indorser of the note. Suit was brought before a justice of the peace; appellee denied the indorsement of the note, under oath; trial before the justice resulted in favor of the appellee; an appeal was taken by the appellant to the cir-. cnit court, trial resulting in favor of the appellee, from which this appeal is taken. Various errors are assigned.

1st. The court erred in refusing to admit proper evidence that was offered on behalf of the plaintiff, and in excluding such evidence from consideration by the jury.

2d. The court erred in refusing to give to the jury the plaintiff’s fourth instruction, as asked by counsel, and in modifying the said instruction, and in giving the same as so modified.

3d. The court erred in giving to the jury the defendant’s instructions, and each of them except the eighth.

4th. The court erred in refusing to set aside the verdict, and in overruling t’.ie plaintiff’s motion for a new trial.

5th. The court erred in rendering judgment in favor of the defendant and against plaintiff.

6th. The verdict of the jury is contrary to the law of the case.

7th. The verdict of the jury is contrary to the evidence in the case, and against the weight of the evidence.

It is insisted the court erred in not admitting in evidence a note of seventy dollars, and also the plea filed by the appellee denying the indorsement. Under the rule announced by our Supreme Court (Jumpertz v. People, 21 Ill. 376; Kernin v. Hill, 37 Ill. 209; Massey v. Farmers National Bank, 104 Ill. 327), there was no error in excluding this evidence.

The appellant, under the issues in this case, was required to show by a preponderance of the evidence, first, that the appellee indorsed the note, and second, that the maker had no property subject to execution at the maturity of the note, and had not had, up to the time of the institution of this suit. There is no conflict in the evidence as to the second proposition. All of the evidence sustains the proposition that the maker had no property subject to execution at and after the maturity of the note. The real issue was on the indorsement. Appellant testifies that the appellee indorsed the note — wrote his name across the hack of it with his own hand. Eroy states: “I saw Mr. A. J. Wiggin with his name on the back of this Iglehardt note.” [Roberts, a bank cashier, stated that he had seen notes in their bank that he knew Wiggin had signed, and that he knew his signature well enough to recognize it when he saw it. He said he thought the indorsement on the note was in the handwriting of Wiggin. Ferris, another bank officer, states that he thought he could recognize the defendant’s signature wherever he should see it, and that he thought the name indorsed on the note in question was ir. the handwriting of Wiggin. Wiggin himself states, on hie cross-examination, “I have looked at my name where I signed it to the plea and affidavit attached to the plea, by which I have denied the indorsement of the Iglehardt note, and I have looked at my name as it is written on the back of that note, and I admit that they look alike. I have always said that my name is written just as well on the back of that Iglehardt note as if I had done it myself. It looks just like my own writing and signature.”

Appellee, on his examination in chief, denies the indorsement. There being no other evidence in relation to the indorsement, it was essential that the jury should have been properly instructed. The fourth instruction asked by the appellant:

“ 4. The jury are instructed that it is immaterial, in this case, what idea the defendant had as to his liability as the indorser of the note in question; such liability is fixed by the law, and if the jury believe from the evidence that the defendant sold or traded and indorsed the note to the plaintiff by wilting his name thereon, then he is liable, in law, as the indorser, whatever may have been his intention or understanding at the time.”

But the court then and there refused to give the said instruction to the jury as asked by counsel for the plaintiff, and thereupon then and there modified the same by adding the following, to wit:

“ This is the law, if the jury believe from the evidence that he knew at the time he wrote his name on the back of the note that he was writing his name on the back of that note.”

And the court then gave said instruction, as so modified by the court, to the jury. To the.modification of said instruction by the court as aforesaid, and to the giving of the same as so modified, to the jury, the plaintiff by his counsel then and there excepted, etc.

The instruction as asked should have been given, and it was error to annex to it the modification; it responded to no issue made in the case. (The only issue presented was an unqualified denial of the indorsement.) The court by this modification told the jury, that “ although you may "believe that the appellee wrote his name upon the back of this note, you must still further believe that he knew that he was writing his name on the back of" the note.” Appellee made no claim that lie signed it by mistake, but claims his signature was a forgery. There was no evidence to support this modification, and its, only effect could have been to mislead the jury and to injuriously affect the appellant.

It is also insisted by the appellant that certain of the instructions given for the appellee should not have been given.

The first instruction was not accurately drawn, but we would not feel inclined to reverse on that account. The manner in which it was drawn was to some extent misleading. The sixth and seventh instructions given for the appellee should not have been given. There was no paper in evidence before the jury with which the jury could compare the signature of the appellee to the indorsement. This being so, both of the instructions should have been refused.

For the errors herein indicated, the judgment is reversed and cause remanded.

Reversed and remanded.


author: Baker, J.

text:
    William A. Wagner v. Mary E. Chaney et al.
    1. Drainage. — -The"court is of opinion that this case does not fall within the rule in this State allowing the owners of the upper or dominant heritage to construct drains that will impose an increased burden of water upon the lower or servient heritage, because the water was not to he discharged into a.ny natural and regular watercourse or channel leading from the land of appellees to that of appellant.
    2. Surface water. — In this State the same rule is applied to surface water flowing in "a regular channel that is applied to a watercourse continuously or usually flowing in a particular direction.
    Appeal from the Circuit Court of Livingston county; the Hon. H. J. PiLLSBUiiv, Judge, presiding.
    Opinion filed June 14, 1886.
    Mr. A. E. Harding and Mr. N. Q. Tanquery, for appellant.
    Messrs. Strawn & Patton, for appellees.
   Baker, J.

This was a bill filed "by appellant William A. Wagner, for an injunction to restrain appellees from draining their land, through the land of one Armstrong, and carrying the water therefrom by means of tile unto the lands of appellant. Answer and replication were filed, and upon the hearing the injunction was dissolved and the bill dismissed.

The farm of Armstrong lies south of appellant’s farm, and the farm of appellees, which we will designate as the Chaney lands, adjoins both on the west. The evidence shows that a portion of the Chaney lands is low and wet and slopes to the north and east and toward the lands of appellant and of Armstrong, and that the surface water therefrom inclines or tends in the direction of and across the said lands, and toward a small pond, three fourths of which is upon appellant’s land, and one fourth upon the Armstrong land. There isa gradual rise in the surface of the ground on the far or east side of this pond, for a distance of some eight hundred feet, in a northeasterly direction, and from thence a gradual slope to Turtle creek. There is no natural outlet to this pond until it overflows; hut some of the witnesses state that when the water has been high, they have seen it flowing therefrom across the land of appellant, to the northeast and to the creek. The evidence also shows that in 1883 appellant put in tile draining from this pond ■ and connected it with an open ditch that led to the creek, thereby draining it, and rendering tillable some ten acres of his land adjoining the pond. Thereupon appellees proceeded to tile their low and wet land, through the land of Armstrong, to the locality of the pond that had been drained, and were engaged in so doing, when they were enjoined, the appellant claiming that his tile extending from the pond to the open ditch was insufficient in size, the fall being very slight, to carry off such additional water.

We are of opinion that this case does not fall within the rule as announced and held in this State, allowing the owners of the upper or dominant heritage to construct drains that will impose an increased burden of water upon the lower or servient heritage, and for the reason that the water was not to be discharged into any natural and regular watercourse or channel leading from the land of appellees to that of appellant. In this State the same rule is applied to surface water flowing in a regular channel that is applied to a watercourse continuously or usually flowing in a particular direction. But we are unable to see from the evidence in this record that there was any well defined channel or natural outlet for the water, either from the Chaney lands to the pond or from the latter to Turtle creek. The most that can be said is, that the Chaney lands were slightly higher than those of appellant and sloped in the direction of them, both being low and wet, and that the water from the former ran or had a tendency to run, not in a compressed form or in a natural, definite and usual channel, but generally in a diffused state, both over the latter and over the adjoining premises of Armstrong. In the case of Peck et al. v. Herrington, 109 Ill. 611, which is relied upon by appellees, it was said that it may be regarded as a well settled rule that the owner of the upper field can not construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains for agricultural purposes, on his own land, as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well defined channel, which carries the water from the upper to the lower field. Here, there was in;the state of nature no usual channel, and the natural flow of the surface water was changed by the proposed new drain through the lands of Armstrong and appellees, and thrown upon the servient heritage at a different point and in a compressed form, and in such manner as to overburden the tiling appellant had put in for his own use, thereby endangering if not substantially destroying the land he had reclaimed, in respect to any beneficial use that might be made of it for agricultural purposes. The effect was to cast a body of unaccustomed water from the upper to the lower estate, and leave the owner of the latter to bear the burdens incident to such flowage.

We think that the circumstance "that appellant at first said that the intended tile drain might be constructed through the land of Armstrong, if Armstrong was willing, can not be regarded as making lawful the acts and proposed acts of appellees, and also that it can not be considered therefrom that appellant is estopped, and for the reasons that there was no consideration for such consent, and it was withdrawn before appellees began the work. The injunction was in apt time, as the drain that was contemplated had not been completed.

The supposed hardship to appellees is obviated by the fact that under the provisions of the drainage act for agricultural purposes, approved June 23, 1883, and in force July 1, 1883, the owner of the superior estate is permitted, upon the terms and under the limitations prescribed by the statute, to enter upon the inferior estate and drain through it.

We hold that it was error to dissolve the injunction and dismiss the bill. For that error the decree is reversed and cause remanded, with directions to make the injunction perpetual. '

Eeversed and remanded.


text:
    Henry S. Carpenter et al. v. First National Bank.
    1. Judgment by confession — Amendment.—When a judgment is ente -ed by confession by virtue of a warrant of attorney, and the defendants against whom it is rendered make application to the court, and upon their own motion have such judgment opened for the purpose of letting in a defense, then the time of final judgment in the suit, according to the true intent and meaning of the Practice Act as regards amendments in civil suits, is the time at which, after the defendants have been let in to plead, the final judgment or adjudication of the trial court upon the controversy between the parties is made.
    2. Same. — When the appellants were allowed to come in and defend against the judgment by confession in vacation, this opened up the pleadings and proceedings to such an extent that the court could properly permit an amendment in the declaration for the purpose of correcting a mere clerical error, the word “July” being used instead of “June,” and thereby obviate a variance between the declaration and the note in suit.
    3. Burden of proof — Right to open and close case. — The party against whom judgment would he given, in case no proof was offered on either side, has the burden of proof and the right to open and close the case. Tested by the pleadings, the burden of proof in this case was upon plaintiff.
    Appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed June 14, 1886.
    Messrs. Garnsey & Knox, for appellants;
    that the judgment entered by the clerk in vacation was void, cited Roundy v. Hunt, 24 Ill. 598; Chase v. Dana, 44 Ill. 262; Tucker v. Gill, 61 Ill. 236.
    The plaintiff should not have been allowed the opening and close of the case. The affirmative was on defendants all the way through the trial. The plea and stipulation amounted to no more than special pleas, and even when the issue is allowed to stand, if it be merely formal the defendant may open and close, and it is considered a right: 1 Greenleaf’s Ev., Sec. 75; Homan v. Thompson, 6 Car. & P. 717 (21 E. C.
      L. 645); Smart v. Rayner, Ibid. p. 721, (21 E. C. L. 656); Mills v. Oddy, Ibid. p. 728 (21 E. C. L. 659).
    Hr. E. C. Hagar and Mr. A. O. Marshall, for appellee ;
    cited R. S., Ch. 110, § 23; Keith v. Kellogg, 97 Ill. 147; Frear v. Com Nat. Bk. 73 Ill. 473; Hill v. Hamilton, 74 Ill. 437.
    As to opening and close: 1 Greenleaf on Ev., 75; Huddle v. Martin, 54 Ill. 258; Kells v. Davis, 57 Ill. 261; Kent v. Mason, 79 Ill. 540; Colwell v. Brower, 75 Ill. 516; Harvey v. Ellithorpe, 26 Ill. 418; Topper v. Snow, 20 Ill. 434; C. B. & Q. R. R. Co. v. Bryan, 90 Ill. 126; Amos v. Hughes, 1 M. & Rob. 494; McReynolds v. B. & O. River Ry. Co., 106 Ill. 152; Williams v. Simp, 12 Bradwell, 454; South Park Com’rs v. Trustees, 107 Ill. 489.
   Baker, J.

In the early part of 1884 Frederick W. Wood-ruff and A. L. Jones purchased some sixty thousand bushels of Kansas corn and had it stored in special bins, to their order, in the Joliet elevator at Joliet, Illinois. A part of this corn was disposed of during the spring, and on the 19th of June they shipped to Chicago five car loads of it, which arrived there at an early hour on the morning of the 20th. This left some forty-one thousand three hundred and seventy-three bushels still on hand, of which about seven thousand bushels were recognized as being in a bad condition and had been separated from the rest; and there was a question as to the real condition of the residue, and as to whether or not it would pass inspection at Chicago as Ho. 2 corn. The whole of this corn yet on hand, that which was damaged as well as that which was supposed to be good, was either on the 19th or on the 20th of J une, sold to H. S. Carpenter & Company, grain dealers at Joliet and appellants herein, at fifty-four cents a bushel. Fifteen thousand dollars of the price agreed to be paid for the corn lias been paid, and the present controversy grows out of an attempt to enforce the collection of a promissory note for §7,341.82 given for the residue of the purchase money. • The note was made payable to the First Hational Bank of Joliet, appellee, but it is admitted that it is not the property of the bank, but that Woodruff & Jones are the real owners of it.

On the 11th of July, 1884, the note, a warrant of attorney, affidavit, declaration and cognovit were filed in the office of the clerk of the Circuit Court of Will county, and the judgment thereon by confession entered in vacation for $7,377.34 against appellants and in favor of appellee. The declaration filed described a note dated the 19th day of JuVy, 1884, instead of a note bearing date the 19th of June, 1884.

On the 24th of July an order was made by the circuit judge, in vacation, staying the ¡execution that had been issued on the judgment; and at the September term of the court, on the motion of appellants, the judgment was opened and they were let in to plead, and an order was made that the judgment should stand as security. The general issue was filed, and with it a stipulation that any evidence might be given under it which could have been given under any special pleas; and by leave of the court the declaration was amended by striking out the word “ July ” in the description of the note, and substituting therefor the word “June. ”

After the case was called for trial at the January term, 1885, the appellants moved the court to enter an order allowing to them the opening and close of the cause, the appellants, for the purposes of the motion and the trial of the cause if granted, admitting the execution and delivery of the promissory note attached to the declaration; but the motion was overruled and an exception taken.

Upon the trial the contention of appellants was, that the purchase of the corn was made on the 20th of June, and was conditional that the five car loads that had been shipped to Chisago, and which was similar corn to the great bulk of that included in the purchase, had passed inspection at Chicago as No. 2 corn; and that to induce the closing of the contract, Woodruff fraudulently represented to them that said five car loads had passed such inspection as No. 2 corn, and displayed to them a telegram of that date, fraudulently sent by his partner, Jones, from Chicago, which read: “ Corn inspected ; all right.” They further claimed that the corn was purchased for the Philadelphia market and was intended to fill contracts they had with Gill & Fisher, limited, of Phila-. delphia, for “sail” corn, and with other Philadelphia firms, and that the vendors knew this; and that it was also known to the vendors that they intended to make a mixture of ¡No. 2 Chicago corn with dry rejected Illinois corn, tvvo thirds of the. first to one third of the latter, and thereby produce a quality of com which would pass inspection . at Philadelphia as “sail ” corn, and which could be turned in on their contracts; that the corn sent to Chicago was.inspected there as “rejected corn, soft and souring;” and that the corn purchased' by appellants, or most of it, was immediately, and before they-had notice of the actual result of the Chicago inspection, mixed with Illinois corn and shipped to Philadelphia, and arrived there in bad condition, did not pass inspection as “sail ” corn, and was sold and disposed of there at a considerable loss. It was claimed by appellants that this loss was sufficient to pay the.whole amount of the principal and interest of the note, and they sought to set oS this damage against it.

The contention on the part of appellee was, that the contract, was closed on the 19th of June; that Woodruff & Jones simply sold the grain on its merits, and after full inspection by appellants; that they did not warrant either its quality or condition, and that the, telegram of the 20th of June had nothing to do with the making of the contract; and further, that they had no notice it was intended for the Philadelphia market, or to fill contracts there.

The verdict was; “We, the jury, find the issue joined in favor of the plaintiff, and assess its damages on the 11th day of July, 1884, at §5,841.80.” Motions for a new trial and in-arrest of judgment were interposed by appellants and overruled. Judgment was then rendered upon the judgment in vacation by confession, on the 11th day of July, 1884, for the amount of the verdict, §5,841.80, with legal interest on said sum from July 11, 1884, and costs; and the clerk was ordered to indorse the amount of the verdict upon all executions issued upon the judgment, as the only sum which, with interest and costs, should be collected.

The Practice Act provides that at any time before final judgment in a civil suit, amendments may be allowed in any matter, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense. When a judgment ¡ is entered by confession, by virtue of a warrant of attorney, ¡ and the defendants against whom it is rendered make application to the court, and upon their own motion have sn h judgment opened for the purpose of letting in a defense, then the time of final judgment in the suit, according to the true intent and meaning of this statute, is the time at which, after the defendants have been let in to plead, the final judgment or adjudication of the trial court upon the controversy between the parties is made. When, tiien, the appellants were allowed to come in and defend against the judgment by confession in vacation, this opened up the pleadings and proceedings to such an extent that the court could properly permit an amendment to the declaration, for the purpose of correcting a mere clerical error, and thereby obviate a variance between it and the note in suit. That the use of the word “July ” instead of the word “June” in the declaration was a mere mistake of the variance, was apparent not only from the note itself, and the letter of attorney, which were on file in the case, but from the fact that an impossible date was stated in the declaration, as it would be preposterous to suppose that a judgment conld be entered, on the, 11th day of July, 1884, upon a promissory note not executed until the 19th of July, 1884. Courts of law exercise an equitable jurisdiction over judgments entered by confession upon notes accompanied by warrants of attorney, and it is necessary, to satisfy the demands of justice, that they should possess it, and exercise it liberally in all proper cases. Hall v. Jones, 32 Ill. 38.

The fact the amendment was made, obviates the point urged that the judgment entered in vacation was void, for the reason the power of attorney only authorized the confession of a judgment on a note dated the 19tli of June, 1884, whereas the declaration counted only upon a note dated July 19, 1884, and the cognovit confessed a judgment upon the promise and undertaking mentioned in the declaration, the attorney thereby exercising a power and authority that had not been conferred upon him; and for the further reason, such being the state of the record, the clerk had no power upon the papers filed, to enter up the judgment. There might be some force in this objection, had the amendment not been made. As the record stands, we think the cases of Roundy v. Hunt, 24 Ill. 598, Chase v. Dana, 44 Id. 262, and Tucker v. Gill, 61 Id. 236, have no application. In Roundy v. Hunt, the motion was to vacate and set aside the judgment, and not, as hi this case, merely to open the judgment and allow the defendants to file pleas; and moreover, no amendment had been made during the defect in the record. In Chase v. Dana and Tucker v. Gill, the defects in the records, which rendered the judgments void, had never been purged therefrom by amendments made in the trial courts. In the case before us, the alleged error was eliminated from the record in the nisi prius court, while the record was still before the court, and after the judgment and proceedings had been opened up at the instance of appellants themselves.

Objection is made to the action of the court in refusing to permit appellants to open and close the case upon the tria.

The rule, as held in this State is, that the party against whom judgment would be given in case no proof was offered on either side has the burden of proof, and has the right to open and close the ease. C. B. & Q. R. R. Co. v. Bryan, 90 Ill. 126; McReynolds v. B. & O. Ry. Co., 106 Id. 152; South Park Com’rs v. Trustees, 107 Id. 489.

Tested by the pleadings, the burden of proof was undoubtedly upon appellee, the plaintiff below. The only plea was the general issue, with a stipulation that special matter might be given in evidence under it and under the pleadings. If the note had not been given in evidence, or other evidence offered by either party, the judgment would have been against the plaintiff. Was the burden shifted by the proceedings had after the case was called for trial ? It will be noted that appellants did not file a written admission of the execution and delivery of the note sued on, or otherwise stipulate upon the record, or even offer to stipulate, that they did or would make such admission of execution and delivery even for the purposes of the pending trial, but merely made a qualified and conditional offer that they would make such an admission if their motion was granted. But their motion was not allowed, and so no admission of the execution and delivery was made, or even affirmatively appeared upon the record. If appellants really desired the opening and closing of the case, and for the purpose of obtaining it were willing to admit a prima faoie case in the plaintiff, they should have filed such pleadings as would have led to that result, or at the very least have made an unqualified and unconditional admission that would be patent upon the record and shift the burden of proof upon themselves ; they might then have been in condition to insist as matter of right they were entitled to open and close at the trial. But, instead of this, they made a conditional offer, which wTas not accepted, and tried, as it were, to drive a bargain with the court. We think there was no error in overruling their motion in that behalf.

Although the verdict in the case in form found the issues joined in favor of the plaintiff, yet it is apparent from the record that upon the mainly controverted issue the finding of the jury was for the defendants, who are appellants here. The amount of principal and interest due upon the note on July 11, 1881, the date of the judgment by confession, was §7,377.21, and that judgment was for that amount. The verdict of the jury was special, and assessed the damages to be §5,811.80 on the 11th day of July, 1881. It is manifest the jury made a deduction from the amount which otherwise would have been due upon the note at that date of §1,535.11, and under the evidence this could only have been done upon the ground that appellants had established, by the receipt of the evidence, that the Kansas corn had been purchased by them on the 20th of June, and on the false representation to them by Woodruff & Jones that the five cars of Kansas corn shipped to Chicago had passed inspection there and been graded as No. 2 corn, and that in consequence thereof appellants were entitled to damages to the amount of $1,535.44, and to have the same set off against or allowed by way of recoupment on the amount that otherwise would have been due upon the note. There is no pretense otherwise afforded bythe evidence for making the deduction. The verdict of the jury was evidently based on this theory: that the sale was predicated upon the false and fraudulent state.ment of the vendors that the five car loads of the corn sent to Chicago had passed inspection as No. 2 corn; but that either Jones & Woodruff had no notice the corn purchased was to fill existing contracts in Philadelphia, or that there was in the evidence no competent and legal proofs of damages to be based on Philadelphia re-sales. The jury must further have considered the Kansas corn in the elevator to be virtually and substantially Chicago corn, and for the reason the freight on it to Chicago was already paid by virtue of the terms of the contract under which it had been, transported from Kansas; and that therefore the basis of damages under the evidence before them wTas the difference between the price for which the corn was sold to appellants, fifty-four cents a bushel, and the average for which the five cars sold in Chicago, i. e. four cars at fifty cents a bushel, and one car at fifty-two cents a bushel. A calculation upon this basis produces substantially the verdict that was returned. We think that the evidence conclusively establishes the fact that the note, although dated June 19th, was actually written and .signed on the 20th of June ; and that the view that was evidently taken by the jury of the whole case, to judge from their verdict, was fully justified by the evidence which was» . before them.

The verdict of the jury having been for appellants on the issue whether the purchase was induced by the telegram and representations as claimed, it becomes wholly unnecessary to consider many of the objections made by them to the rulings of the court upon the admissibility of testimony, and for the reason the proposed testimony bore only upon that issue, and it having been found in their favor they were not damnified by such rulings.

The court refused to admit the testimony of either of the appellants with reference to the amounts they had received for the corn shipped to Philadelphia, as it was based solely on the reports made to them by the several parties to whom it had been consigned, and who, after it had arrived in bad condition and failed to grade, upon inspection, as “ sail ” corn» refused to receive it upon their contracts, and under arrangements made with appellants, disposed of it as best they could upon the market for account of consignors. This was but hearsay testimony, and it was properly excluded from the jury.

We regard but a single one of the instructions given at the instance of appellee as objectionable ; that was the 9tli, and as it referred only to the issue that the jury decided in favor of appellants, it is plain they were not injured by it.

Exception is taken to the action of the court in refusing one of the instructions requested by the appellants. We think the ruling of the court thereon was proper. It was with reference to the measure of damages; and under it, if the jury found the defendants were entitled to recover any damages, even if it was upon the theory upon which the verdict was afterward found, then they were directed, and without any reference to whether Woodruff & Jones had any notice of the Philadelphia re-sales or not, or even knew the corn was intended for the Philadelphia market, to compute the damages upon the basis of such re-sales, and of any extra expenses paid on account of the grain being in bad condition. The instruction was probably improper on other grounds, which it is deemed unnecessary now to consider.

We find no error in the record which should reverse, and it is therefore affirmed.

Affirmed.


text:
    First National Bank of Monmouth v. John C. Dunbar, Adm’r, etc.
    1. Banks — Special deposits appropriated. — If a special deposit in a bank is wrongfully transferred by the bank or its cashier and put with the funds of the bank, and reported and treated by the bank as a part of its assets, this constitutes a conversion, and no demand and refusal is necessary to maintain trover.
    2. Evidence — Parties in interest — Directors.—In a suit brought by one suing as an administrator of a deceased person against a bank the testimony of the directors of the bank is incompetent, as they are parties in interest.
    Error to the Circuit Court of Warren county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed June 14, 1886.
    Messrs. Grier & Dryden and Messrs. Kirkpatrick & Alexander, for plaintiff in error.
    Messrs. Matthews & Peacock and Messrs. McKenzie & Calkins, for defendant in error.
   Baker, J.

This action was for the recovery of the value of four Roseville township bonds, of the par value of one thousand dollars each, claimed to have been deposited for safe keeping with plaintiff in error by the intestate of defendant in error. The first and second counts in the declaration were in case, for the loss of the bonds through negligence; and the third count was in trover, for the wrongful conversion of the bonds. The finding of the jury was for defendant in error on the third count specifically and only, and was therefore a virtual finding for plaintiff in error on the first and second counts. Judgment was rendered on the verdict for §4,200 damages and for costs.

Docs the evidence show that Byers, defendant in error’s intestate, ever deposited any bonds with the bank? And does it otherwise sufficiently sustain the verdict? When Oakley, the bank examiner, took possession of the bank and its property, on the 8th day of April, 1884, he found among its assets six Roseville township bonds, of the denomination of §1,000 each, of the issue of 1881. It does not appear from the testimony, otherwise than as here often suggested, when, where or from whom these six bonds, or any of them, were procured; and they were not mentioned in any entry upon the books of the bank," or in any report made by it, as a part of the assets of the bank prior to the report to the comptroller of October 2,1883. The evidence shows that March 17, 1882, Byers gave to Hubbard, the cashier of the bank, his check on the bank for §3,950, which was on that day paid by the bank out of moneys he had on deposit there, and charged up against him on the books of the bank, in the body of which check it was stated, in the handwriting of the cashier, that it was for four Roseville township bonds of §1,000 each; and also that on the same day a receipt was given by the cashier to Byers for four bonds of Roseville township of §1,000 each, in which it was expressed that they were received for safe keeping in our vault.” In the pass book of Byers with the bank there appears, in the handwriting of the cashier, a credit of the date of June 4, 1883, of §240 for “ bond interest;” this would be the amount of the interest coupons that fell due on June first on four of these bonds, and it appears that the intestate did not have or claim to have any bonds other than these in the bank. A conversation between the deceased and one Curry was given in evidence by plaintiff in error, which was to the effect that he, the deceased, had never seen the bonds, but that the cashier had bought them for him. The documentary evidence of defendant in error was supplemented by the testimony of Hubbard, the defaulting cashier of the bank, whose statements were in entire conformity with and in corroboration of the truth of that which appears upon the face of the check, receipt, bank book and pass book. It is urged, however, that there were but thirteen of these bonds issued; that six of them belonged to the bank, and the wdiereabouts of the others were accounted for on the trial, and that therefore it is impossible that Byers could have deposited four of them with the bank on the 17th of March, 1882. This is assuming as an established fact that the bank had and owned six of these bonds at that date, whereas the evidence does not show that the bank either had or claimed them prior to the time of the report of the date of October 2, 1883.

We think that from the evidence the jury were justified in believing that the cashier bought the bonds on or prior to the 17th of March, 1882, for Byers, that they were paid for by the check, and left on special deposit in the bank; that the interest coupons were collected by the bank • for and credited to Byers; and -that afterward, and prior to the 2d of October, 1883, the cashier, for the purpose of covering up to some extent his embezzlement of the hank funds, abstracted these bonds from the special deposit envelope in which they had been placed along with other papers, and transferred them to the funds of the bank and incorporated them as a part of its assets. Even if it had affirmatively appeared that the bank owned these six bonds prior to the transaction between Byers and Hubbard, yet the jury would have been justified in finding for defendant in error; for Hubbard was the cashier of the bank, and its agent with whom third parties were to deal, and had a right to sell and dispose of its choses in action and other personal property. It is urged that the only reasonable explanation of the transaction is that Byers gave his check to Hubbard, intending to make him his agent to purchase bonds for him, and that instead of doing so, Hubbard, after giving the receipt, drew and used the funds himself. This theory is inconsistent with the papers that were signed at the time, and the jury did not arrive at the conclusim suggested from the evidence that was before them, and we can not say the conclusion they reached was not the more reasonable one.

We think there is no merit in the point that no demand for the bonds was made until after the bank examiner had taken possession of them, and it was beyond the power of The bank to comply with such demand. If the special deposit was wrongfully transferred by the bank or its cashier, and put with the funds of the bank, and reported and treated by the^ bank as a part of its assets, then this was a conversion, and no^ demand and refusal was necessary in order to maintain trover. But if the bonds should be regarded as a special deposit, notwithstanding such transfer, yet the bank, although it had failed and its property was in the hands of the federal authorities, had the right and power, under section 5228 of the Revised Statutes of the United States, “ to deliver special deposits.”

Errors are assigned in reference to some of the rulings of the court upon the trial, and upon the instructions.

The point is made that defendant in error was permitted to put two or three leading questions to Hubbard, over the objections of plaintiff in error. The objections were genera1, and it does not appear they were as to matter of form, or placed upon the ground the questions were leading, and it is plain from the record that they did not elicit categorical, or even satisfactory answers ; and besides this, trial courts must be allowed to exercise a large discretion in the matter of leading questions. The objections to the questions propounded to Guy Stapp were properly sustained; the answers called for were with reference to matters that were res inter alios acta, and would have been but secondary evidence, even as to such transactions between other parties. There was no error in holding that the testimony of the directors of the bank was incompetent evidence. They were all stockholders and parties in interest, and defendant in error was suing as the administrator of a deceased person. Although Hubbard may have been the agent of Byers in the purchase of the bonds, yet that would not have the effect to render them competent to testify to the matters it was proposed they should, under the second exception of section two of the Evidence and Depositions Act; it was not proposed to examine them with ref erence to any conversation or transaction that took place between Hnbbard (such agent) and the bank, or even with reference to the conversation or transaction that transpired between Hubbard and Byers. The questions put to Stapp and Young, on cross-examination, were in respect only to the issues formed on the first and second counts of the declaration, and had reference solely to the alleged negligence of plaintiff in error; and as those issues were found in its favor by the jury, no harm was done.

The refused instructions asked by plaintiff in error also were relevant only to the two counts upon which the jury failed to find a verdict for plaintiff in error, and the same remark may be made in reference to the two instructions that were modified by the court. It is therefore deemed unnecessary to consider the rulings made by the court thereon.

The first instruction for defendant in error was limited to the count in trover, and as applied to that count, it was substantia lly correct. Although some of the unnecessary statements therein were rather too broadly expressed, yet the substance of it was, that if the bank received the bonds for safe keeping, it was bound to return them upon demand; otherwise defendant in error would recover in trover, unless some good excuse was shown by the evidence for non-delivery.

The third and fourth instructions contained the propositions that the true and legal owner of personal property is never divested of his title by the unauthorized, wrongful act of any other person, and that the person who buys stolen property, acquires no title as against the true owner. The court evidently did not bear in mind that the property involved in this litigation consisted of bonds payable to bearer, and transferable by delivery, and that they were commercial paper. The rule stated as above by the court in these instructions has no application to such paper, at least when it has passed into the hands of a purchaser for value, without notice. The statement in the third instruction was perhaps sufficiently qualified by the language that followed, but there was no such qualification to the fourth. However, the instructions must be considered from the standpoint of the facts of the particular case on trial. Hubbard was the cashier of the bank, from the date of the purchase of the bonds by Byers to the day the bank closed; and although he may have been the agent of Byers in making the original purchase, yet such agency ended when that purchase was closed, and in the matter of the special deposit lie was the agent of the hank, and notice to him that the bonds were held as a special deposit and for safe keeping, and were the property of Byers, was notice to the bank of the same facts. The evidence is undisputed that Hubbard, as cashier and agent for the bank, procured for it all six of the bonds, and if four of the bonds so procured were the bonds of Byers, then, howsoever they were procured, whether by purchase or otherwise, Hubbard, in such transaction, had notice of the ownership and title of Byers, and through him, its cashier and agent, the bank had the same notice he had, and could not possibly have been an innocent purchaser or holder of the bonds. It is a well settled doctrine of the law that notice to the agent is notice to the principal. We think that in the light of the evidence the incorrect statements of the law contained in these instructions could not have misled the jury to the detriment of plaintiff in error.

We see no valid objection to the fifth instruction; it merely left it to the jury to decide in regard to the credibility of the witnesses and the truthfulness of the several and various statements made by them.

We may remark that the instructions as a series were carelessly and inaccurately drawn, but that we are unable to see that they could have worked an injury. The salient points to establish the case of the plaintiff below were the facts that a special deposit was made as claimed, and that without the knowledge or consent of the depositor, the subject-matter of such deposit was transferred to the general funds of the bank and converted to its use. These points were fully and explicitly covered by the instructions given, and must affirmatively have been found by the jury. It is immaterial, then, that as to some of the matters of detail the instructions were not technically correct.

Those that were given at the instance of plaintiff in error presented the law of the case to the jury as fully and as favorably as could in reason be asked.

We find in the record no error that should reverse the judgment, and think that it should be affirmed; and it is so ordered.

Affirmed.


author: Per Curiam.

text:
    Charles W. Carroll v. Thomas B. Holmes.
    Practice. — Briefs in type-writing are not in compliance with rule 22 of this court. The briefs so written are ordered stricken from the files and the judgment reversed, pi-o forma, under rule 27.
    Appeal from the Circuit Court of Marshall county; the Hon. S. S. Page, Judge, presiding.
    Opinion filed June 18, 1886.
    Mr. F. S. Potter, for appellant.
    Messrs. Burns & Ong, for appellee.
   Per Curiam.

In this case the briefs of appellee and the reply brief of appellant are both written with “type-writers.” Pule 22 of this court provides that printed briefs will be required in all cases. We can not recognize briefs in typewriting as being in compliance with the rule. In the present instance, some of the copies filed are legible, while others are quite illegible ; and no doubt this latter would frequently be the case if a practice of this kind was permitted.

It is ordered that the briefs of appellee and the reply briefs of appellant be stricken from the files; and that the judgment be reversed, pro forma, under rule 27, for the want of briefs on the part of appellee, and that the cause be remanded for a new trial.

Reversed and remanded.


author: Moran, J.

text:
    Lyman Everingham et al. v. Edward A. Lord.
    1. Practice — Motion to suppress depositions. — A motion to suppress depositions made two days before the trial is in apt time.
    2. Goods sold by sample — Warranty.—In every sale of goods by sample, the vendor impliedly warrants the quality of the bulk to be equal to that of the sample, and there is no distinction between the contract as expressed in words and as implied by law, and any custom or usage which would be competent evidence to affect the rights of the parties under the warranty implied, would be competent under the same warranty expressed.
    3. Usage or custom. — No usage or custom can he set up in contravention of the express terms of a contract; but a usage or custom may add new terms not expressed in or covered by the contract, which are incidental and not repugnant to it.
    4. Board op Trade usage. — Where the usage sought to he proved had reference to the method ot dealing on the Board of Trade, with regard to the time within which inspection and objection to corn sold by sample with an express warranty that the hulk was equal to the sample should he made, held, that evidence of the custom was competent, as this point of inspection and time for objection was in no way covered by the express contract, and as the custom was reasonable and proper, and the parties, being Board of Trade members, must be presumed to have dealt with reference to it.

      Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 9, 1886.
    Mr. John E. Burke, for appellants;
    as to evidence of custom, cited Bywater v. Richardson, 1 Ad. & E. 508; Smart v. Hyde, S M. & W. 723; Parker v. Ibbetson, 4 C. B. (U. S.) 346; Dixon v. Dunham, 14 Ill. 329; Bailey v. Bensley; 87 Ill. 556.
    Mr. Millard B. Powers and Mr. Frank E. Lord, for appellee ;
    as to evidence of custom, cited Dixon v. Dunham, 14 Ill. 326; Fay’v. Strawn, 32 Ill. 302; Cadwell v. Meek, 17 Ill. 228; Deshler v. Beers, 32 Ill. 368; Barlow v. Lambert, 18 Ala. 704; Yates v. Pym, 6 Taunt. 446; Van Hoesen v. Cameron, 20 N. W. Rep. 609; Schenck v. Griffin, 38 N. J. L. 471; Steward v. Scudder, 4 Zab. 96; Spears v. Ward, 48 Ind. 541.
   Moran, J.

Before the trial of this case in the court below, a motion was made by defendants’ attorney to suppress the depositions of certain witnesses taken in the State of Pennsylvania under a commission addressed To W. I. Woodcock, Esq., Hollidaysburg, Blair county, Pennsylvania, or to any judge, master in chancery, notary public, or justice of the peace of the State and county above mentioned.” The deposition appeared to have been taken before one Ephraim Gerst, a notary public, and the certificate was signed by Gerst as notary public, but there was no certificate of his official character attached to or accompanying the deposition. The motion to suppress was overruled. This was error. There is nothing in this record to show that defendants had in any way waived or forfeited the right to object to the depositions and to have them suppressed for the cause assigned. The motion was made in apt time. The rule as established in this State by numerous decisions is, that such motion may be made after leave has been obtained to open the depositions and before the trial is entered upon. A motion made two days before she ease is called for trial, as this motion was, is certainly not too late. Corgan v. Anderson, 30 Ill. 95; Kimball v. Cook, 1 Gilm. 423; T. W. & W. R. R. Co. v. Baddeley, 54 Ill. 19; Swift v. Castle, 23 Ill. 209; R. R. I. & St. L. R. R. Co. v. McKinley, 64 Ill. 338; Merchants’ Dispatch Co. v. Leysor, 89 Ill. 43; Kassing v. Mortimer, 80 Ill. 602.

This action was brought to recover for a breach of warranty in the sale of a car load of ear-corn. The parties plaintiff and defendant were members of the Chicago Board of Trade. The sale of the corn in question was hy sample, and the evidence tended to show with an express warranty that the bulk of .the car load was equal to the sample. After the appellee, Lord, had agreed to take the corn, he gave directions that it should be shipped to Cessna Station, Pennsylvania. The shipping directions were given to appellants’ agent who made the sale of the corn.

The main controversy in the case grows out of the ruling of the trial court, as to the effect, on the rights of the respective parties, of an alleged usage or custom on the Chicago Board of Trade, that corn sold by sample must be inspected by the purchaser, or by his direction, within twenty-four hours after the purchase, and rejected if it is faulty; and upon a failure so to inspect and reject within said time, unless an extension of the time is obtained, the purchaser is held to have accepted the corn and taken it at his own risk, and can not thereafter complain that the bulk was not equal to the sample. There was conflict in the evidence as to whether an express

arranty was given, at the time of the sale, that the bulk should equal the sample, but there was no contest that the sale was made by sample.

The court admitted proof of the usage with reference to sales made by sample merely, but refused to admit evidence offered to show that the same usage obtained when there was an express warranty that the bulk was equal to the sample, and upon that point instructed the jury for the plaintiff as follows:

“ The jury are instructed that no custom, however good, will be permitted to vary the express terms or language of a contract. Proof of usage or custom can only be received to show the intention or understanding of the parties in the absence of an agreement, and if the jury believe from the evidence that the car of ear corn in question was purchased by plaintiff from defendants, under an express agreement by defendants that it should be equal to the sample shown, and that the corn was not equal thereto, they are instructed that no proof of custom or usage can be considered as releasing defendants from the terms of such an agreement, and they must find the issues for the plaintiff and assess his damages, if any, at such an amount as they believe from the evidence he has sustained.”

By ruling out the evidence offered and instructing the jury as in the foregoing instruction, the court made a distinction between cases in which the warranty that the bulk shall be equal to the sample is implied and where it is express.

In every sale of goods by sample, the vendor impliedly warrants the quality of the bulk to be equal to that of the sample, and we are entirely unable to see any distinction be. tween the contract as expressed in words and as implied by law. It was said by Abbott, C. J., in Parker v. Palmer, 4 B. & A. 387, that, “The words ‘per sample’ introduced into this contract may be considered to have the same effect as if the seller had in express terms warranted that the goods sold should answer the description of a small parcel exhibited at the time of the sale.” And in Bradford v. Hanly, 13 Mass. 139, Chief Justice Parker said, “We are all dfecidedly of the opinion that a sale by sample is tanian ouut to an express warranty that the sample is a true representative of the kind.’’ The express warranty claimed by the plaintiff in this case; then, was co-extensive and identical, in legal import, with the warranty implied from the sale by sample merely, and any custom or usage which would be competent evidence to affect the rights of the parties under the warranty implied, must be equally competent under the same warranty expressed.

Mo usage or custom can be set up in contravention of the express terms of a contract. If the parties by the terms of their contract cover the point as to which the usage is shown to exist, the contract will, under the invariable rule, contro the rights of the parties to it; but while the usage or custom can not contradict the stipulations in the contract, it may add new terms not expressed in or covered by the contract, and which are incidental and not repugnant to it.

Ever since the leading case of Wigglesworth v. Dallison, it has been the established rule that customs which do not contradict the agreement, but add-to it a consequential right or duty, are binding on the parties without reference to the question whether the agreement is by deed or parol, or the undertakings are implied from certain acts of the parties-1 Smith’s Leading Cases, 670, and cases cited in the note; Ala. and Tenn. Rivers R. R. Co. v. Kidd, 29 Ala. 221; Leach v. Beardslee, 22 Conn. 404; Lyon v. Culbertson, 83 Ill. 33.

All persons dealing in any branch of business are presumed to be acquainted with any usage affecting it, and are presumed to deal in reference to it. Such a usage is evidence of what is reasonable; that is, of what is suitably adapted to secure both parties in their rights; Casco Manufacturing Co. v. Dixon, 3 Cushing, 410. The usage sought to be proved in this case had reference to the method of dealing on the Board of Trade, with regard to the time within which inspection and objection to corn sold by sample with an express warranty that the bulk was equal to the sample, should be made. This point of inspection and time for objection, was in no way covered or attempted to be covered by the terms of the express contract which plaintiff claims was made, and hence if the custom or usage which defendant sought to prove, in fact existed, and was reasonable and well established t it was competent, for it in no manner’ contradicted or varied the terms of the express contract, and the parties to the contract both being members of the Board of Trade, must be presumed to have dealt with knowledge of and reference to it.

The custom or usage, if it exists, would, in view of the business of commission men of the Chicago Board of Trade? seem to be proper and reasonable.

At common law if a purchaser of goods by sample desired to repudiate the sale on the ground that the bulk did not correspond with the sample, he was bound to do so within a reasonable time. Parker v. Parker, supra.

In great centers of trade where the volume of business is immense, usages which facilitate the completion of transactions and speed the final settlement of accounts between the parties interested, are natural and indeed necessary, and when proved to exist, the courts apply them to the parties as the law of their dealings.

In Sanders v. Jameson, 2 C. & K. 557, a custom of the Liverpool corn market very similar to the one claimed to exist on the Chicago Board of Trade, namely, that “ if corn be sold by sample, and the buyer does not on the day the corn is sold, examine the bulk and reject it, he can not afterward reject it or refuse to pay the whole price,” was held to be a reasonable usage, and binding on the parties dealing in the market.

It follows from the foregoing considerations that the court below erred in the instructions given and above set out, and in the ruling that evidence of the alleged custom could not be received where there was an express warranty that the bulk was equal to the sample.

The court erred also in admitting evidence as to the damages. It does not appear from the record that the vendor of this corn was informed before the sale that it was wanted for any special purpose, or that it was to be'shipped to Pennsylvania. The shipping directions appear to have been given to the vendor after the sale was made. The true rule of damages in such cases is announced in Goodkind v. Rogan, 8 Bradwell 413; and if on another trial of this case, the facts shall remain as in this record on that point, the rule stated in said case will govern as to damages.

The case must be reversed and remanded.

Beversed and remanded.


text:
    Benton Mauzy v. August Kinzel.
    1. Negligence of hotel proprietor. — An action brought by appellee against appellant, to recover damages for an injury sustained by[appellee from falling down an elevator shaft which had been left unguarded. The premises were kept by appellant as a lodging house and appellee, his guest, while searching for a water closet in the night time, fell down this shaft. Appellant did not have the control of the elevator and never used it. Held, that it was appellant’s duty to have maintained h barrier to the entrance which led to the elevator.
    2. Practice — Admission of evidence. — It is a matter of discretion with the trial court whether a party will be permitted to give further evidence after his case has been closed and the exercise of such discretion is not ordinarily subject to review.
    Appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    Opinion filed June 9, 1886.
    This action was brought to recover damages for an injury sustained by appellee from falling into an elevator shaft, through an opening alleged to be upon premises kept by appellant as a lodging house or hotel. Appellee was a guest of the hotel, having, with a companion, taken a room for the night. At an angle in the hall from which the room opened was a short hall in which was an opening leading into the elevator shaft, which opening was without a door or barricade to prevent persons passing through it. This short hall leading to the elevator was used by appellant to store some articles of furniture in, but he did not use the elevator. The evidence tends to show that he knew the door into the elevator shaft was left open from time to time by men who went through there to fix the elevator. Appellee, in the night, was compelled to answer a call of nature, and in groping around in the darkness for the water closet, found this opening in the elevator and mistook it for a door leading to the water closet, and stepping into it was precipitated to the bottom of the shaft and received the injury complained of. There was a water closet on the same hall on which appellee’s room was situated, a little distance down the hall. There was a verdict and judgment for appellee, and the case is in this court by appeal.
    Mr. George W. Cass, for appellant.
    Messrs. Kraus, Mayer & Brackett, for appellee.
   Moran, J.

It is urged as one ground of error, that the court below allowed the plaintiff to introduce further testimony after his counsel had announced that plaintiff’s case was in, and after defendant had moved the court to exclude the evidence as being insufficient to sustain a verdict.

It is a matter of discretion with the trial court whether a party will be permitted to give further evidence after his case has been closed, and the exercise of such discretion is not, ordinarily, subject to review: Wellborn v. Odell, 29 Ill. 456; Chillicothe Ferry R. & B. Co. v. Jameson, 48 Ill. 281.

As to the merits of the case we have carefully examined the evidence in the record and the instructions given by the court, and we are of the opinion that there is no ground for reversal of the case.

Whether the appellee was in the exercise of ordinary care at the time of the accident, was left to the jury on full and perspicuous instructions given on behalf of both plaintiff and defendant, and the jury, upon consideration of ail the facts, ha ve found that he was guilty of no lack of ordinary care. The com-t fully and fairly instructed the jury, at appellant’s request, as to his duties, and as to the measure of the care due from him for the safety of the guests of his house.

Complaint is made that the court refused to give defendant’s instruction telling the jury that if they found from the evidence that defendant did not have control of the elevator in the building, nor of the passage way leading to the elevator, then it was not the duty of the defendant to protect or guard said elevator shaft, and the plaintiff can not recover, etc.

It was conceded that the defendant had the use and control of the hall on which the plaintiff’s room opened, and from which the short hall, on which the elevator shaft was situated, led off. Granting that defendant had no control of the elevator shaft, or the small hall leading to it, it was his duty to have maintained a door or barrier at the entrance from the main hall to the small hall which led to the dangerous aperture. To leave the approach from his hall to another which conducted his guest to a pit fall, open and unguarded, was such negligence as would make him liable, in our opinion, and that he had no actual control of the small hall, and the shaft itself, would not relieve him. When the conditions are permitted to he such, in a hotel, that from slight want of attention, or from the confusion or misapprehension that naturally attends a stranger in feeling his way through a dark hall, one may be led up, without meeting door or barrier, to a well hole into which a plunge is taken, it may be to death, the hotel keeper can not escape the charge of negligence on the plea that he had no right to close up the well hole itself. He might bar or close up tire entrance to a small hall, and .thus prevent guests of his house, who were unacquainted with the location and the limits of his possession and control in the halls, from entering the passage to tread which in the darkness was dangerous.

The language of the Supreme Court in the case of Hayward v. Merrill, 94 Ill. 357, is peculiarly applicable to the facts of this case. The proprietor of a hotel, to which he invites the public to come that he may make gains thereby, has no right to permit the existence of such an opening as this one was, unless suitably guarded, that the slightest mistake on the part of the guest might not prove fatal. * * * The opening ought to have been better protected than it was, and the omission to do so, under the circumstances proven, may well be attributed to the defendant as gross negligence.”/

There was no error in refusing the instruction, and the judgment was correct, and must therefore be affirmed.

Affirmed.


author: McAllister, J.

text:
    John G. Keith v. Lawrence Lynch.
    1- Estoppel nr pais. — Estoppels -in pais are odious, and must be strictly made out. The party setting up an estoppel in pais must show that there was a willful intent to make him act on the faith of the representation, and that he did so act. The elements indispensable to the application of an estoppel in i>ais, were not only not clearly, but were not fairly made out in this case.
    2. Tortious act op servaht. — The mere fact that a tortious act is committed by a servant while he is actually engaged in the performance of the service he has been employed to render, can not make the master liable. Something more is required. It must not only be done while so employed, but it must pertain to the particular duties of that employment.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed June 9, 1886.
    This was an action on the case, brought by Lynch against Keith, to recover for a personal injury received September 18,1884, while engaged in the hold of the schooner “Homer,” for the purpose of unloading a cargo of coal for and at the dock of Pratt, Parker & Co., Chicago, the consignees of said cargo. The declaration averred that defendant, Keith, was the owner of said schooner at the time, and that the injury to plaintiff was occasioned by the negligence of defendant and his servants.
    On the trial, plaintiff introduced evidence tending to show that while he was so at work in said hold, and passing under an open hatchway, a heavy piece of timber was suddenly precipitated down through said hatchway, and descending about a dozen feet struck plaintiff on one of his legs, producing a fracture thereof; that some repairs were being made on the vessel at the time, for which said piece of timber was to be used; that said repairs were being made by Hiller Bros., whose employes were handling the timber when it was go permitted to fall through said hatchway, and that the captain of the vessel participated in the aetof handling it. And there was evidence tending to show that the injury to plaintiff was the result of the misfeasance or nonfeasance of the persons, or some of them, who were handling said piece of timber, but there was no evidence tending to show defendant’s presence at the time, or that the work was being done under his personal control. It appeared that the defendant was not in fact the owner of any interest in the schooner and never was, but that he had acted solely as agent of the owner, who was Mrs. AnnHalsted. It inferentially appeared that Chicago was the home port of said vessel. For the purpose of holding defendant as owner of the vessel by way of estoppel in pais, the attorney of plaintiff testified, that soon after the injury, and before suit brought, he asked the defendant if he was the owner of the schooner “ Homer” and that defendant answered that he was; that said attorney informed defendant, at that time, that he was tiie attorney of plaintiff. It appears that the defendant, as witness on his own behalf, testified that said attorney never made any such inquiry of him, and that he did not tell said attorney that he, defendant, was such owner; that the said attorney and defendant were the only witnesses to said conversation, and plaintiff was not present. There was no evidence tending to show that said attorney ever informed the plaintiff of what he had been so told by defendant, or that he, or bis attorney, did not know, at the time of bringing the suit, by whom the said schooner was in fact owned at the time of the injury.
    The court, at the instance of plaintiff’s counsel gave to the jury the following instructions :
    “ If the jury believe from the evidence that the defendant, in answer to any inquiry by the plaintiff’s attorney as to who was the owner of the vessel on which the accident in question occurred, and knowing or having reason to believe that such inquiry was made for the purpose of finding out who was liable for the injury, represented that he was owner of the vessel, intending the plaintiff to believe that such was the fact, and that the plaintiff believing such representation to be true, and acting thereon, .brought this suit against the defendant as the owner of the vessel, and would not have done so but for such representation, then the jury are instructed that the defendant is bound by such representation, and is estopped from denying that he was the owner of the vessel, and must, for the purposes of this suit, be regarded by the jury as the real owner of the vessel, no matter who was in fact the owner.
    “ The jury are further instructed that if they believe from the evidence, that the men engaged in lowering the timber into the vessel were under the direction and control of the captain, as to the mode and manner of doing this work, then they are to be regarded as the servants of the owner of the vessel, and the captain is to be regarded as the agent of the owner; and if the jury further believe from the evidence that the captain, or the men so directed and controlled by him as aforesaid, (if the jury believe from the evidence that they were so directed and controlled,) were guilty of negligence in such work, and that by reason of such negligence the plaintiff was injured, as alleged, while himself in the exercise of ordinary care and rightfully in the hold of the vessel, at the place where he was hurt, and that he was rightfully there, if there with the knowledge and consent of the captain of the vessel, then they will find a verdict for the plaintiff, if they believe from the evidence that the defendant was the owner of the vessel, or if, under plaintiff’s first instruction, they regard him as the owner. ”
    The jury found for the plaintiff and assessed his damages at §526, and judgment being given, defendant prosecutes this appeal.
    Messrs. Schuyler & Kremer, for appellant.
    Messrs. Lewis & Judson, for appellee.
   McAllister, J.

If this case had been determined by the jury upon the actual truth of the relation of defendant below to the persons and things connected with and contributing to tlxe injury complained of, it is clear that defendant could not be held liable; for there is a total absence of evidence tending to show any participation by him in the particular acts which occasioned the injury, either by being present and aiding, or by any order or direction on his part; and the evidence was explicit and uncontradicted that he had no interest in the vessel, and acted only as agent for the owner in employing the captain and hands. The law, as laid down in Stone v. Cartwright, 6 Term R. 411, is directly applicable. Nicholson v. Mounsey, 15 East, 384; Story on Ag., § 313.

The case was decided against the defendant, as we are bound to presume, on account of the first instruction which the court gave on behalf of the plaintiff, which had the effect of barring or shutting out the actual truth of the case, by what is called an estoppel. In Andrews v. Lyons, 11 Allen, 349, the Supreme Court of Massachusetts made this statement of the law in regard to such estoppels: “ The modern doctrine on this subject of estoppels in pais is thus stated by Lord Campbell, in Howard v. Hudson, 2 El. & Bl. 10: ‘If a party willfully makes a representation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an estoppel. It is not quite properly so called, but it operates as a bar to receiving evidence contrary to that representation, as between those parties. Like the ancient estoppel, this conclusion shuts out the truth, and is odious, and must be strictly made out. The party setting up such a bar to the reception of the truth must show that there was a willful intent to make him act on the faith" of the representation, and that he did so act.’ ”

In the present case the plaintiff introduced the testimony of his attorney, to the effect that before bringing the suit he inquired of defendant if he was the owner of the schooner “Homer” and that defendant replied that he was. The defendant, in his testimony, explicitly denied that any such inquiry was made to or answer given by him, and those two were the only witnesses on the subject. In looking at the evidence of the conversations between the attorney and defendant, as given by the former, it is manifest that the defendant had in mind, in what he said, a suit in admiralty against the vessel as for a marine tort, and he was not informed of any desire or intention to bring an action against, the person of the owner. We are unable to find any evidence tending to show that neither the plaintiff nor his attorney had any knowledge as to the actual ownership of the vessel, except what defendant had said to the attorney, or that they relied on what he said and thus changed their position. The elements indispensable to the application of the doctrine of estoppel in pads were not only not clearly, but were not fairly made out. But, at all events, the case stood in such way, upon the evidence, that accuracy and freedom from any substantially misleading tendency in the instruction for plaintiff upon the matter of estoppel, were imperatively demanded, in order to avoid giving the plaintiff an undue advantage in his resort to a doctrine, which, when applied to a case like this, is odious and not favored, but which in this case was not fairly made out by the evidence. By the first’instruction for plaintiff the jury were told: “If the jury believe from the evidence that the defendant, in answer to an inquiry by the plaintiff's attorney as to who was the owner of the vessel on which the accident in question occurred, and knowing or having reason to believe that such inquiry was made for the purpose of finding out who was liable for the injury, represented that he was owner of the vessel, intending the plaintiff to believe that such was the fact'' etc.

That instruction, as to several of the vital facts, speaks the language of assertion or assumption, instead of that of hypothesis or supposition. It assumes that some inquiry was made by plaintiff’s attorney, of the defendant, as to the ownership of the vessel — a fact explicitly denied by the defendant. It assumes that the defendant intended to have the plaintiff believe that he, the defendant, was the owner of the vessel. Whether or not there was any intent of that kind on the part of defendant was one of the facts to be found by the jury.

By the second instruction for plaintiff, the defendant was held responsible for misfeasance or nonfeasance on the part of the captain of the vessel in respect to the handling of the piece of timber to be used in making the repairs, without any evidence tending to show that the captain was authorized by the owner or the defendant to superintend in making such repairs, or that he was acting within the scope of his employment; and, without any hypothesis in the instruction, as to his being so authorized, or acting within the scope of his employment. If the captain was not acting under the command or direction of the owner as to the particular acts which occasioned the injury, then it is eleme* -y law that the principal was not liable for his acts of commission or omission, unless they were done in the course of his employment. “ The mere fact that a tortious act is committed by a servant while he is actually engaged in the performance of the service he has. been employed to render, can not make the master liable. Something more is required. It must not only be done while so employed, but it must pertain to the particular duties of that employment.3’ Snyder v. Railroad Co., 60 Mo. 413; C., B. & Q. R. R. Co. v. Casey, 9 Bradwell, 638.

The vessel was in her home port. The defendants had em ployed Miller Bros., a dry-dock firm, to make the repairs, and they were making them at the time of the accident. The court could not properly assume that the captain, merely because he was captain, had authority to interfere with or control the manner of doing the work, or that the doing these repairs pertained to his duties. For the errors in the instructions mentioned, the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    Continental Life Ins. Co. v. Caroline S. Rogers.
    Notice. — Where the form, of the action or of the pleadings gives notice to the opposite party to be prepared to produce a particular instrument then in Ms possession, if necessary, to contradict the evidence of the other party, notice to produce the instrument is not required. Held, that the declaration in this case operated as implied notice to the insurance company to produce the written notice and proof of death.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed June 9, 1886.
    Messrs. Swift & Campbell, for appellant.
    Messrs. Smith & Burgett, for appellee.
   McAllister, J.

This was an action by appellee against the insurance company, appellant, upon a policy of insurance issued by the latter, May 23, 1881, whereby, in consideration of certain premiums to be paid by the assured, appellant insured the life of Herbert S. Rogers in the sum of five thousand dollars, for the period of ten years, for the benefit of appellee, the wife of said Herbert.

The declaration sets out said policy in hceo verla, avers the due payment of all the premiums, the death of said Herbert S. Rogers, and that plaintiff had, within two years after the death of said Herbert, produced to the defendant, at its home office in Hartford, Connecticut, due notice and satisfactory proof, in writing, of the death of said Herbert S. Rogers, etc. On the trial, under the plea of general issue, the plaintiff gave testimony tending to prove all the essential elements of her cause of action, and the defendant offered no evidence by way of defense. The jury found the issue for the plaintiff and her damages to be five thousand five hundred and twenty-two dollars and fifty cents; for which, plaintiff had judgment and defendant prosecutes this appeal.

The principal point relied on by appellant’s counsel for reversal is, that the court allowed plaintiff to give secondary evidence of said notice and proof of death, without- first having given defendant notice to produce them on the trial.

The rule is well settled that where the form of the action or of the pleadings gives notice to the opposite party to be prepared to produce a particular instrument then in his possession, if necessary, to contradict the evidence of the other party, notice to produce the instrument- is not necessary. Neally v. Greenough, 5 Foster, 325, and cases there cited; 2 Phil, on Ev., Cow. & Hill’s Dotes, 5tli Ed., marg. p. 538, note 461.

We think the declaration in this case operated as implied notice to defendant to produce the papers in question. The plaintiff’s evidence fairly tended to prove every essential element of her cause of action, and defendant offered none. Perceiving no substantial error, the judgment will be affirmed.

Affirmed.