author: Pillsbury, J. Leland, J.

text:
    Sarah A. Simpkins v. A. W. Berggren et al.
    Evidence—Op fraudulent transactions with other parties not admissible.—-Appellant brought replevin for crops levied upon under an execution against her son. On the trial, evidence was permitted to be given tending to show that the son had given a chattel mortgage upon his personal property to his brother, for the purpose of hindering his creditors, and that it had been foreclosed under circumstances that indicated its fraudulent character. The record failing to show that appellant was in any way connected with it, or had any knowledge of its consideration or object, such evidence should have been excluded. It is not even presumptive proof that another and different transaction with other parties is alike fraudulent.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. L. Douglass, for appellant;
    that the second instruction given for defendants was erroneous, there being no evidence on which to base it, cited Goodwin v. Durham, 56 Ill. 239; Holden v. Hulburd, 61 Ill. 280.
    The fifth instruction given for defendants submitted to the jury matters of law, and was therefore improper: Adams v. Smith, 58 Ill. 417; Carter v. Carter, 62 Ill. 439; Herrick v. Gary, 65 Ill. 101; Baldwin v. Williams, 63 Ill. 550.
    Mr. AdrianL. Humphrey, for appellees;
    contended that the pretended arrangement between appellant and her son was merely colorable, designed to cheat the son’s creditors, and that while fraud must be proven, it may be proven by circumstances, and cited Boies v. Henney, 32 Ill. 130; Bowen v. Schuler, 41 Ill. 193; Slattery v. Stewart, 45 Ill. 293; Steere v. Hoagland, 39 Ill. 264; Bullock v. Narrat, 49 Ill 62; Reed v. Noxon, 48 Ill. 323; Bryant v. Simoneau, 51 Ill. 324; Rothgerber v. Gough, 52 Ill. 436; Swift et al. v. Lee, 65 Ill. 336.
    That substantial justice has been done, and the Appellate Court will not interfere: N. E. F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; Perkins v. Fisher, 39 Ill. 164; Van Buskirk v. Day, 32 Ill. 260; Morgan v. Peet, 32 Ill. 281; Durham v. Goodwin, 54 Ill. 469; Yundt v. Hartranft, 41 Ill. 9; Potter v. Potter, 41 Ill. 81; Jarrard v. Harper, 42 Ill. 457.
   Pillsbury, J.

This was replevin brought by appellant against appellees, to recover 50 acres of standing corn and 20 acres of oats, which had been taken by appellees as sheriff and deputy, upon an execution against Benoni Simpkins, the son of appellant.

The premises where the grain was grown, were owned by Benoni Simpkins, the husband of appellant, in his lifetime, and by his last will and testament he devised the same to her during her natural life. Her son Benoni, the defendant in the execution, raised the grain in controversy, and the question upon the trial below was, whether it was liable to be taken in execution for his debts. It appears that for several years prior to 1876, he had farmed the place as tenant of his mother, but it is claimed that in the Spring of 1876, a different arrangement was entered into between them, by which he was to raise the grain for her at five dollars per acre.

The appellant testifies that in the spring of 1876 Benoni, her son, was not willing to rent the farm any longer, and was about to leave, and she, not wishing him to do so, contracted with him to raise the grain for $5 per acre, and upon those terms he remained upon the farm. Benoni swears that he thought it did not pay him to rent the place as he had been doing, and he wanted to leave the farm anyway, but finally made the contract to raise the grain for her at $5 per acre.

Dean Simpkins testifies: “ I am son of the plaintiff. I live on that farm now. A year ago I lived four and a half miles north of that, on my farm. I saw this crop that is levied upon. It was mother’s crop, as I understood it. She hired Ben. to raise it some time in the spring; he was to get §5 an acre. That contract was made at mother’s house in Maquon. I was present and heard the contract. He said he wanted to quit the place. She said she did not want him to. Then he said he would hire to her to work by the month. She said she did not want to hire him by the month, and I suggested she better hire hiip. to raise it by the acre, if he would raise it that way, and she said she would. She asked me what it would be worth; 1 told her I had paid §5 per acre. He said he would do it for that, and she said she would give it. Then ■ he went on and raised it.”

The testimony of these three witnesses, in our opinion, stands uncontradicted upon the record.- It is sought to weaken the force of this evidence by showing that' Benoni, to all appearances, carried on the place the same as he had in former years; that he had at various times sold and fed grain claimed by his mother, and that he did other work on the farm besides raising the crop, and that he acted relative to the place the same as any other farmer would. The circumstances of the case, however, destroy all the force of this class of presumptive evidence.

The appellant, was at the time of the trial below, seventy-four years of age. She was living on the home farm, and her son Benoni was living with her. She was unable to work the farm or attend to ordinary business affairs, and to whom should she look for assistance in such matters, if not to him? It does not appear but that he had the love and respect for his widowed and aged mother which is so justly due her as the author of his being, and so becoming-in the son, and, because actuated by that love he gratuitously rendered her all the assistance in his power, and conducted her business as he would his own, shall we conclude that their testimony is not to be believed? We see nothing in this record showing that the acts of the son are inconsistent with the testimony on the part of appellant, when considered in the light of their relations, and all the circumstances surrounding them.

Again, evidence was permitted to go to the jury tending to «show that Benoni had given a chattel mortgage upon his personal property to his brother Dean, for the purpose of hindering and delaying his creditors, and that it had been foreclosed under circumstances that indicated its fraudulent character. 'While, in our opinion, the defendants failed upon the proofs in that regard, we think that such testimony should have been excluded from the jury, as the record in the cause fails to show that the appellant was in any way or manner connected with it, or had any knowledge whatever of its consideration or its object.

We are not prepared to hold that a fraudulent conveyance of chattels to one person, is even presumptive proof that another and different transaction with other parties is alike fraudulent.

If it were thus to be presumed, it would be very unsafe to purchase property or make any contract relative to it, until you had first ascertained that the vendor had not prior thereto, been guilty of fraudulently conveying some of his other property.

The last clause of the fourth instruction given for the defendants, partakes too much of the character of a direction by the court to find for the defendants and was calculáted to mislead the jury. The People v. Roach, 77 Ill. 25.

In our opinion, the verdict is so palpably against the evidence that the cause should be submitted to another jury.

The judgment will be reversed and the cause remanded.

Reversed and remanded.

Leland, J.

I have been unable to come to the same conclusion in this case as that arrived at by the other members of the court. I think it quite probable that the defendant in execution, Benoni Simpkins, and his mother, the appellant, after the former had been the tenant of the latter for nine or ten years, and in February or March, 1876, and about 'the time a large judgment was recovered against the son on a security debt, made precisely the arrangement, with Dean to witness it, to which the mother, and her sons Benoni and Dean testify, viz: That she should pay Benoni five dollars an acre for raising the crop for her in the year 1876. I think, however, with mental reservation that it should be performed in the same way as the contract between the parties had been performed for the nine of ten preceding years, to-wit: By Benoni paying rent, and having the crops for his own use, without being subjected to the inconvenience incident to the unpleasant position of a judgment debtor on a security debt. The arrangement, which to those not in debt was an unusual and unreasonable one, was I think when made, a general one without details, as to the meadow and pasture land, as to harvesting the crops, and as to their sale after they were gathered, as to whether the four dollars an acre or four cents a bushel, as the case might be, for gathering, and the five dollars an acre for raising, were to be paid when the work was completed, or from time to time as it progressed, as to whose stock should be fed out of the crops, and how this should be adjusted, who should furnish horses, implements, seed, etc., and how it was to be arranged in case of contribution in unequal proportions, etc. etc.

It was evidently a general arrangement that the crops were .to be the mother’s, and she was to pay the son for the raising and gathering of them, made without time to fix all the simulated details, because of the pressure of the §1,140.45 judgment of Feb. 24, 1876 against William Keck and Benoni Simpkins. The supposed details were gradually added, from time to time, as they became necessary to give symmetry to the structure, or structures, if there were two—as raising one, and gathering one. In answer to the question, what did you agree to give him forgathering it? the mother says four dollars an acre, at which time, I imagine, Benoni’s countenance assumed a negative expression, plainly visible to judge and jury, but not capable of being reproduced here in ink, and she therefore said: “ I don’t know as that is a very high price; may be then it was four cents a bushel. It was something. I can’t remember such things. I told him to go and gather the corn, and I would pay him for it. He came and asked me if he should gather it.” That was after Housh levied upon it. She says that “ under the five dollar an acre contract, we did not say who was to furnish the grain to feed the teams; nothing said about it, as I know of. He paid some of the hands, and I paid some; there was nothing said about that.” In answer to a question as to what was said about the meadow land, she says there was nothing said about it. “ I don't thinh I wa/nt to give a history of my Ufe." She said also that in 1876 he used the meadow land, just as he had years before, without anything being said about it. She says she don’t know how many oats there were, or what became of them. Don’t know who thrashed them. Don’t know whether he fed them to the horses as before. Mrs. Benoni Simpkins, whose relations with her husband, however, were inharmonious, says that Mrs. Simpkins told her, speaking of the grain, that she would have to replevy it to hold it; that he, Benoni, could not hold it, because everything was mortgaged; that it was best for her to do so, so they would not take it away from him; that he dare not replevy it, etc.

I do not perceive anything in the conduct of Benoni inconsistent with the relations of the mother and son being the same in 1876 as in previous years. The mother and her two sons are the only persons who speak of a changed condition of things; and the change, if any, was not mentioned to neighbors and friends, nor discovered by them. The sale by the mother to others of corn, and the keeping account of the amounts, was proper to know what was paid in corn for rent. So as to any corn she may have had for herself. Benoni used corn and oats as he would use his own, on the farm, and he removed a portion of that replevied to his livery stable, and used it there as his own, after he left the farm. It does not appear how and when, if ever, his mother paid the $5.00 an acre, nor the four cents a bushel. If their relations were nominally, they were not really, changed. Suffice it to say, without going into a more critical examination of all the circumstances, that it seems to me that the court and jury below probably got at the real truth. Even, however, if they did not, I would not be disposed to interfere with their conclusions, in a case of conflict like this.

A jury, with a woman for plaintiff, and a judgment creditor as the party in interest against her, rarely renders a verdict against the woman. It must be a clear case of awakened conscience or vis mayor, with the jury, I think, therefore, that there was something in the atmosphere surrounding the case, something in the pantomime of the trial below, plainly visible in the court-room in Knox, which is not discoverable in the printed abstracts, nor in the written record. There may be events of a conclusive character transpiring upon a trial which pen or types cannot well reproduce. I remember of hearing of one, observed by some of the spectators, overlooked hy others, which happened in a trial for burglary in this State some years ago, when burglaries were committed in the night time only. The question was one solely of the identity of the defendant, who was a stranger. A lady witness, in her evidence, misplaced a bureau. The prisoner leaned over and spoke to his attorney. The attorney immediately asked her if she was not mistaken as to the place in the room where 4t was situated. She reflected, and said she was.

It seems to me that the judgment debtor and the mother were alarmed by, and attempted to escape from the judgment for the security debt by the contrivance mentioned. At least the probability, according to the evidence, seems to me to be that way.

Complaint is made in appellant’s brief that the court below allowed appellees to prove that the judgment debtor had made a chattel mortgage to Dean Simpkins, his brother, and to endeavor to show that it was fraudulent as to the creditors of Benoni. The evidence was admitted, and the court charged the jury in relation to it as follows:

“ The court instructs the jury that the evidence introduced concerning the sale of property by Dean Simpkins, under chattel mortgage, and all evidence concerning said mortgaged property is immaterial, and not proper for the consideration of the jury, only so far as the proof may show such transaction to he connected with the transaction in question between the plaintiff and Benoni Simpkins, if such is the proof, and so far as it tends to throw light upon the transaction in question, and only such part of said evidence should be considered by the jury as connects the plaintiff with the transaction in reference to the property interests of Benoni Simpkins, if any.”

It appears from the evidence that there was a sale of the property described in the chattel mortgage; that several of the Simpkins family, and those related by marriage, bid at the sale, and there is evidence that the property thus purchased, was shortly afterwards in possession of Benoni. Among other purchasers was the mother, who purchased hogs which, after the sale, went into the possession of Benoni. In short, there was evidence,pvo and con, as to whether this chattel mortgage was dona fide or not; and if not, whether the mother was assisting in the covering up, if there were any. It seems to me that it was entirely proper to show that the members of the family, the mother included, were conspiring to shield Benoni from creditors, and that Benoni was in embarrassed financial condition ; also to show what means he had, and what debts he owed.

After critically examining the instructions given for the defendant below, it seems to me that they are carefully and thoroughly prepared, and that they state the law accurately. My judgment is, that the case has been fairly tried, that the verdict is not clearly against the weight of the evidence, that substantial justice has probably been done, and that the judgment should be affirmed.


source: Caselaw Access Project

author: Leland, J.

license: Public Domain

text:
    Elizabeth Holly v. William H. H. Augustine.
    1. Replevin—Declabations op ownebship bt the debtob.—In replevin for property levied upon by virtue of an execution, evidence was permitted of declarations of ownership of other property, by the judgment debtor made to the constable at a time when other executions were presented for payment. The declarations were not made in the presence or hearing of the claimant of the property, nor does it appear that they were made before or after the alleged sale to the claimant. If such declarations were made before the sale, the testimony was irrevelant; if after, it was improper. The judgment debtor cannot by bis own declarations create the evidence upon which the property might be applied to the payment of his own debts, after he had once disposed of it to the claimant.
    2. Question op pbaudulent sale—Instbuction—Law and pact.— Instructions asked by the plaintiff, wherein the question whether the gift or sale to the claimant was fraudulent, intended to hinder or delay the creditors of the judgment debtor, were properly refused. Instead of the law being stated by the court, both the law and the fact was left to the consideration of the jury.
    3. Questions op law in instbuctions.—Instructions leaving the jury to settle questions of law, undirected, are erroneous.

      4. Instructions not referring to the property in suit.—The qualifications attached by the court to the instructions given, were on a collateral subject, and did not apply to the hay and grain, the property in suit. The use of the farm may have been fraudulently given, and the sale of the chattels mentioned in the instructions might have been fraudulent, and yet the renting of the farm may have been fair and honest, and the hay and grain have been raised by the claimant and her husband. The instructions, to say the least, were inapplicable to the controverted facts in issue, and calculated to mislead.
    Appeal from the Circuit Court of Grundy county; the Hon. Josiaii McRoberts, Judge, presiding.
    Messrs. Hill & Dibell, for appellant.
    Messrs. Jordan & Stough, for appellee;
    that circumstances tending to show fraud are always admissible; and a jury may infer fraud from circumstances, cited Reed et al. v. Noxon, 48 Ill. 323; Bryant et al. v. Simoneau, 51 Ill. 324; Strauss et al. v. Kranert, 56 Ill. 254; Carter v. Gunnels et al. 67 Ill. 270; O’Donnell v. Segar, 25 Mich. 367.
    That appellant is bound by the statements of her husband, acting as her agent: Doan et al. v. Duncan, 17 Ill. 274; Goodrich v. Hanson et al. 33 Ill. 499; Whiteside v. Margarel, 51 Ill. 507.
    There being no visible change of possession, the declarations of the judgment debtor subsequent to the pretended sale are admissible against appellant: Whitaker v. Wheeler, 44 Ill. 440; Amick v. Young et al. 69 Ill. 542; Wyckoff v. Carr, 8 Mich. 44.
    Appellant and the judgment debtor had entered into a combination to defeat his creditors and his declarations as to the ownership of the property are admissible against appellant: Barron v. The People, 73 Ill. 256; Philpot et al. v. Taylor, 75 Ill. 309; 1 Greenleaf on Ev. § 111.
    There being no visible change of possession after the pretended sale, it was fraudulent as to creditors: Topping v. Lynch, 2 Rob. 484; Butler v. Stoddard, 7 Paige, 163; Jones v. O’Brein, 4 J. & Sp. 58; Searing et al. v. Butler et al. 69 Ill. 575.

      The verdict of a jury will not be disturbed when the evidence is conflicting, unless it is manifestly against the weight of evidence: Morgan v. Ryerson, 20 Ill. 344; Martin et al. v. Ehrenfels, 24 Ill. 187; Pullian v. Ogle, 27 Ill. 189; Millikin v. Taylor, 53 Ill. 509.
    It is the province of a jury to determine upon the credibility of a witness, and the mere number of witnesses to a fact should not always control; First Nat. Bank v. Haight, 55 Ill. 191; Carey v. Henderson, 61 Ill. 378; Chicago City R’y Co. v. Young, 62 Ill. 238; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Gill v. Crosby, 63 Ill. 190; Corgan v. Frew, 39 Ill. 31; McClurkin v. Ewing, 42 Ill. 283.
    A sale of personal property not accompanied by a continuous and visible change of possession, is fraudulent and void as to the creditors of the vendor: Rev. Stat. 1877, 521; Rhimes v. Phelps, 3 Gilm. 455; Thompson v. Yeck, 21 Ill. 73; Rothgerber et al. v. Gough, 52 Ill. 436; Topping v. Lynch, 2 Rob. 484; Butler v. Stoddard, 7 Paige, 163; Stanley v. Cobbins, 36 Vt. 422; Gleason v. Day, 9 Wis. 498; Smith v. Welch, 10 Wis. 91; Osen v. Sherman, 27 Wis. 501; Hilliard on Sales, 176.
   Leland, J.

This was an action of replevin, brought by appellant against appellee, who, as a constable, had taken corn and hay on execution against Geo. P. Augustine, father of appellant. On the trial below the attorneys, to save trouble, entered into this stipulation: 11 Stipulating to dispense with proof of demand and refusal before suit brought, and issue levy and proof of execution and judgment in this case; it is agreed that the only question in issue shall be whether the plaintiff, or Geo. P. Augustine, at the commencement of this suit was the owner of the property replevied.”

After the trial had progressed awhile, the attorneys found that they did not agree as to the proper construction to be put upon this stipulation; and when it came to drafting instructions they continued to disagree. And thus, as is often the case, the attempt to save a little trouble made more than it would if they had been less economical.

This is not the worst qf it. The writer of this opinion and liis brethren are not entirely harmonious on the subject. The strict literal construction, perhaps, is that it means who, inter partes, was the owner, the father or his daughter?

The writer of this .opinion is disposed, after construing it by the light of surrounding circumstances, to say that it means who, as against the constable with the execution, was the owner of the property, and so his Honor, the judge presiding at the trial, thought. Although, quite unusual, a masculine jury found against a feminine plaintiff, which makes rather a prima facie case that the jury was right; we apprehend, however, because the law of the trial required it.

Appellant, who was a married "woman, claimed that in August, 1873, she and her husband were living with her father on the farm of the latter; that her father’s wife, who was her mother, was ill; that she and her husband were about to leave for Chicago, and had their trunks packed; and that under these circumstances her father told her that if they would stay, and that if she would take charge of the house, as housekeeper, he would give her the use of the farm, and give her also the stock and farming utensils on it, and the household goods, the whole of no great value; that her father was in an unembarrassed and comfortable pecuniary condition at this time; that she accepted the proposition and remained, and that she was housekeeper, and that she worked the farm through her husband. Her mother died the following September.

The theory of appellee is, of course, the usual one—that the father was the real owner of the stock, farming utensils, furniture and farm, as before; and that the arrangement was one to avoid the inconveniences attendant upon his having too many creditors. Appellant and husband remained on the farm during the years 1874, 1875 and 1876, and were there when the levy was made on the corn and hay raised by them in 1876. The husband attended mainly to the business of farming.

The father was rather a coal miner than a farmer. He also kept store a little. The evidence was conflicting, and there was no such preponderance in favor of the plaintiff below, as to render it proper for that reason alone, to disturb the finding, although as to the corn and hay, the evidence preponderates in favor of the daughter and husband having raised it, rather than that the father did. It would seem that they carried on the farm, and allpwed him to attend to his store-keeping and mining business, while they raised the crops. If this were so, it does not matter much whose the farming tools, stock and household goods were in 1873, except as a circumstance from which it might be inferred that if there were deception "as to them, there might be as to the corn and hay raised in 1876.

The. rulings in, relation to the admissibility of evidence were in some instances erroneous and somewhat peculiar.

One Bailey was permitted, against objection, to testify that the husband came to his place in Mazon to buy a boar-pig, and told witness he was buying the pig for Geo. P. Augustine, as near as he could recollect; that it was to go on the farm there. A motion to strike out this evidence was made, and overruled. One Ferris was allowed, against objection, to state for defendant that the father offered to sell him some cattle in 1876, also that he owed him, and proposed to give a mortgage upon some horses and a mower. After he had done testifying, a motion was made by plaintiff’s counsel to strike out all the evidence of the witness, which was granted, and said evidence ruled from the jury. Then there was a motion to strike out all the evidence offered by defendants in relation to other property than that replevied, and the motion was also granted except as to the evidence of Bailey about the boar-pig.

After this the defendant Augustine, the constable, testified that he had previouslyleyied upon some cattle upon the farm, which the father turned out as his. And thereupon the court, either because of this evidence, or because of a change of opinion otherwise produced, sua sjponte directed that the testimony of the witness Ferris, and the evidence heretofore excluded in relation to other property than that replevied in this suit, be restored to the jury, and that the previous ruling excluding the same, be rescinded, to which plaintiff excepted.

Objection was made by the plaintiff to a conversation held between the defendant and the father in relation to the property other than that in suit, which defendant was called upon by his attorney to state as a witness, and which conversation was not in the presence and hearing of plaintiff. The court allowed the witness to introduce his own conversation, as well as that of the father, in evidence. The substance of the conversation was that when witness previously went to the father with one other execution, he told witness that he would turn out property to satisfy it, if he would give him the full time of the execution. He said: “ Go and take some two-year olds —go and take any of them; they are all mine.” He did not tell me the cattle or property belonged to Mrs. Holly at the time of presenting any execution.” Witness also said that he levied on the cattle, and sold part—that he levied four executions.

It does not appear, by the evidence of this witness, whether the levy of other executions was before or after the alleged gift, or rather sale, from the father to the daughter; but perhaps by the evidence of the latter two, it is made to appear to have been after. If before, it was irrelevant; if after,, improper. Randegger v. Ehrhardt, 51 Ill. 101; Miner v. Phillips, 42 Ill. 123; Wheeler v. McCorristen 24 Ill. 40.

Even if the "court explains to the jury that they should only consider the evidence for the purpose of showing fraudulent intent on the part of the vendor, it is improper. Gridley v. Bingham, 51 Ill. 153.

The transaction between the father and the daughter was rather a sale for a valuable consideration than a gift. In either event, however, the father could not, by his own declarations, create the evidence upon which the property might be applied to the payment of his own debts, after he had once disposed of it to his daughter. The conversation was not, it is-true, as in the cited cases, about the very property in controversy, but the principle is the same, especially as the whole case seems to have been tried as though about these chattels.

Some of the instructions were, we think, erroneous. The writer is not disposed to say anything about those which give construction to the stipulation. As the case is to be reversed, the attorneys can rescind it and make a better one. We do not consider it anything more than one for the purposes of that trial.

The plaintiff’s second, fifth, sixth, seventh, eighth and ninth were properly refused, because they ignored tire question oí a contrivance to hinder, delay or defraud creditors.

Conceding, for the sake of the argument, that the question whether the sale or gift was fraudulent as to creditors, was in the case, notwithstanding the stipulation, we think the court erred in the manner of leaving this question of fraud to the jury. Instead of the facts being stated by the court, the jury was allowed to determine both the law and the fact.

To one of the instructions of plaintiff this was added: “And in determining the question of ownership the jury is to consider the evidence bearing upon the question of possession of the property, and whether there were any acts of Mrs. Holly and G. P. Augustine which in law would be fraudulent against the creditors of the said Geo. P. Augustine.”

To another this was added: “unless the jury shall believe, from the evidence, that the acts by Mrs. Holly and Geo. P. Augustine were fraudulent m law, so as to render the contract ■between them void as to the creditors of said Augustine.”

To another this was added: “Hnless the jury shall believe, from the evidence, that the possession and control of said property so remained with said G. P. Augustine as to malee Ms contract fradulent in law as to his creditors.”

There should have been a statement of the facts necessary to make the sale or gift fraudulent as to creditors, either in these qualifications, or by reference to, and the adoption of, facts stated elsewhere. The jury are left to settle questions of law, undirected: White v. Maitland, 71 Ill. 250; Mitchell v. The Town of Fond du Lac, 61 Ill. 174; Bullock v. Narratt, 49 Ill. 62.

Again, these qualifications are on a collateral subject, and do not apply to the property in suit—corn and hay. When the alleged gift or sale was made, there were some farming implements, three or four horses, some hogs, a few cows, some young cattle, household furniture, etc., and the instructions seem all to be on the subject of these chattels. The standing corn and the hay were not sold, nor given by the father to the daughter. The use of the farm may have been fraudulently given, but the daughter and her husband raised these crops. There may have been a fraudulent sale of these chattels, and yet the renting the farm may have been fair and honest. ' The instructions, to say the least, were inapplicable to the controverted facts in issue, and calculated to mislead.

This is also the case as to the defendant’s given instructions. They are all about sales and gifts of personal property, not about fraudulent leasing of land, and crops raised thereon: “ The jury are instructed that if the father sold these goods and chatties, that is, horses, hogs, farming implements, cattle, household furniture, etc., and remained in possession, then the raising the corn and hay was fraudulent, and the jury should find for the defendant.”

The following are three of the defendant’s given instructions:

“If the jury believe,from the evidence, that after August, 1873, there was not an actual, public and continued change of possession of the goods and chattels alleged by plaintiff to have been given her by Geo. P. Augustine, and if Geo. P. Augustine remained in possession of said goods and chattels and the farm products for the purpose of selling or mortgaging in his own name said goods, chattels and farm products, even if he did so as agent for Elizabeth Holly, the transaction was void as to creditors" of Geo. P. Augustine, and the jury will find for the defendant, and the issues m this case are for him”

“ Whenever the vendor of personal property retains, apparently, the same possession of the property after the sale as before, and" the change of possession is in no way indicated to the public, the sale is void in law as to creditors of the vendor; a sale of personal property without a public and continued change of possession is good as between the vendor and vendee, but not as to the creditors of the vendor. How, if the jury believe, from all the evidence in this case, that there was not a public and continued change of possession, but that Geo. P. Augustine retained, apparently, the same possession of the property after as before the sale, and that the change of possession was in no way indicated to the community, than on this point the 1cm is for the defendant, and the jury will so find.”

“A sale of goods is fraudulent as against creditors, unless accomjianied by an actual and continuous change of possession. If the vendor remain in possession for the purpose of controlling and managing the goods as agent for the vendee, the transaction is void as to creditors. How, if the jury believe, from all the evidence in this case, that Geo. P. Augustine retained apparently the same possession of these goods after the pretended sale to his daughter, and controlled and managed the same as her agent, and such agency was not revealed to the community, then the transaction was void as to his creditors, and your verdict must be for the defendant.” The italics are ours.

Heither one of the three instructions has anything to do with the growing corn, and the hay replevied. There was no evidence about the corn and hay having been mortgaged. The jury were therefore instructed that if they believed, from the evidence, that horses, hogs, cattle, fanning implements and household furniture, etc., were sold or given by the father to his daughter in 1813, and that he remained in possession after the sale and gift, that therefore there was some fraud as to the corn and hay raised on the farm in 1876, and the jwry must find for the defendant. This appears to us to be a non sequiter, and that the instructions are erroneous.

Without pursuing the subject farther, we conclude that there must be a reversal "for the errors mentioned.

Reversed and remanded.


text:
    The Chicago & Northwestern Railway Co. v. Catharine E. Clark, Adm’x.
    1. Accident eboh a passing engine—Instruction as to cabe.—An instruction that if the deceased at the time he was killed was using reasonable care, etc., is erroneous. The language, as it stands, ignores the fact of any previous neglect on the part of the deceased, and according to the instruction, no matter what previous neglect there had been, if he were not negligent at the time of the collision, a recovery could be had.

      2. Especial care not required to guard against the willful neglect of others.—The fact that the deceased was permitted by the company to unload freight at a dangerous place, and that the servants of the comp my knew that the deceased was using a restive, skittish horse, afraid of the cars, does not impose upon them the exercise of especial care in the management of their engine to avoid any accident by frightening such horse. While to a certain extent the care and caution of a defendant should be greater to protect one incapable by reason of tender years, mental imbecility! or the like, from protecting himself, yet the willful neglect of a plaintiff fully able to protect himself, should not be urged as a reason why the care and caution of a defendant should be anything more than ordinary.
    Appeal from tlie Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.
    Mr. B. Cook, for appellant;
    that plaintiff cannot declare for negligence in running an engine, and recover for placing a ear in an unsafe place to he unloaded, cited Cent. Mil. Tract R. R. v. Rockafellow, 17 Ill. 541; Mayer v. Humphrey, 1 C. &. P. 251; Moss v. Johnson, 22 Ill. 633; Sherman v. Blackman, 24 Ill. 350; Cast v. Roff, 26 Ill. 452; Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; McKenney v. Neel, 1 McLean, 551; Angell on Carriers, § 592.
    That declarations of the company’s agent, made after the fact, are not admissible: 1 Greenleaf on Ev. § 113; Linblom v. Ramsey, 75 Ill. 246; M. C. R. R. Co. v. Carrow, 73 Ill. 348; M. C. R. R. Co. v. Gougar, 55 Ill. 503; C. & N. W. R’y Co. v. Fillmore, 57 Ill. 265; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. B. & Q. R. R. Co. v. Riddle, 60 Ill. 534.
    The care and caution of a plaintiff is not confined to the very time of the injury, but the question is also involved whether he was justified in being where he was at the time and under the circumstances: Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290; Keokuk Packet Co. v. Henny, 50 Ill. 264; Quinn v. Ill. Cent. R. R. Co. 51 Ill. 495.
    As to the rule of damages in such cases: C. & N. W. R. R. Co. v. Jackson, 55 Ill. 497.
    Instructions not based on evidence are erroneous: Ind. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Andreas v. Ketcham, 77 Ill. 377; American v. Rimpert, 75 Ill. 228; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Holden v. Hulburd, 61 Ill. 280; Paulin v. Hawser, 63 Ill. 312.
    There must be negligence on the part of defendant, and no want of ordinary care on the part of the plaintiff, to warrant a recovery: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576.
    The act of leaving horses unhitched, or driving skittish horses in close proximity to a locomotive, is negligence: Deville v. Southern P. R. R. Co. 50 Cal. 383; P. W. & B. R. R. Co. v. Stinger, 2 Cent. Law Jour. 555.
    The verdict of the jury was found under improper instructions of the court, and hence should have no weight: T. W. & W. Ry. Co. v. Moore, 77 Ill. 917; Ill. Cent. R. R. Co. v. Hammer, 72 Ill. 347; Volk v. Roche, 70 Ill. 297.
    Mr. F. Saokett and Mr., W. H. Bennett, for appellee;
    that a railroad company is liable for the negligence of its servants: cited G. & C. U. R. R. Co. v. Loomis, 13 Ill. 548; G. W. R. R. Co. v. Geddis, 33 Ill. 304.
    Hpon the question of comparative negligence: C. B. & Q. R. R. Co. v. Payne, 48 Ill. 499; C. B. & Q. R. R. Co. v. Triplett, 39 Ill. 482.
    That deceased was not guilty of contributory negligence, in unloading cars at a point designated by the company: Newson v. N. V. Cent. R. R. Co. 29 N. Y. 383; Spooner v. Brooklyn City R. R. Co. 54 N. Y. 230; Ill. Cent. R. R. Co. v. Schultz, 64 Ill. 172; Ill. Cent. R. R. Co. v. Hoffman, 67 Ill. 286.
    The degree of care to be exerci-sed by railroad companies, depends upon the circumstances of the case: T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; Schmidt v. C. & N. W. R’y Co. 83 Ill. 403.
    Negligence is a question of fact to be determined by the jury: I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; Nor. Line Packet Co. v. Binninger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177.
    Where the evidence is contradictory, involving the credibility of witnesses, the verdict should not be disturbed except in a very clear case: Carey v. Henderson, 61 Ill. 378; Chicago City R’y Co. v. Young, 62 Ill. 238; Dietrich v. Rumsey, 45 Ill. 209; Davis v. Hoeppner, 44 Ill. 306; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151.
    As to the rule of damages: Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290; Tilley v. Hud. R. R. R. Co. 29 N. Y.
    If substantial justice has been done, the verdict will not be disturbed. Dishon v. Schorr, 19 Ill. 59; Schwarz v. Schwarz, 26 Ill. 81; Rice v. Brown, 77 Ill. 549; Cuttingham v. Owen, 71 Ill. 397; Sterling Bridge Co. v. Baker, 75 Ill. 139.
   Leland, J.

This was an action on the case for the damages consequent upon the death of a husband, sustained by his widow and next of kin, alleged to have been caused by the negligent management of a switch engine of the appellant, at a station. At Sterling there were many railroad tracks, the general course of which, at the place of the injury, was east and rvest, converging, of course, at the east and west ends of the depot grounds into-the track, as it is between stations. Among these tracks, there were four substantially parallel, at and near the place of collision. The northern one was called the house track; the next one south, and fourteen feet eight inches therefrom, was named the Morrison track; the next, thirty-one feet south'from the Morrison, was called the main track, and the other was a more southern one, and a safer place for loading and unloading cars, and on wdiich cars were often placed for that purpose.

The deceased was loading wheat from cars on the house track into a two-horse wagon, to be hauled to a mill south of all the-tracks, and less than a quarter of a mile from the place of loading. It appears, without conflict, that the deceased preferred this place of loading, as more convenient than the one at the southernmost of the four tracks, mainly because the neighborhood of the last named place was more muddy. It also appears that appellant, to some extent, tolerated this preference of the deceased, and allowed him and others to load their wagons out of cars at the house track opposite the freight house, which was close to it on the north of it.

Deceased was a vigorous man, and evidently not a timid one —one who prided himself upon his skill in the management of a team of horses. He considered the danger of loading at the house track as of little moment, and was perfectly willing to exchange the greater safety and more inconvenience of the southern track, for the greater convenience and less safety, if any in his estimation, of the house track, and frequently did so.

After having said thus much about the two southernmost tracks, we may dismiss them as of no further use in this opinion, and confine ourselves to the two northernmost ones. There were three freight cars on the house track, immediately south of the freight house. Deceased had hauled six loads to the mill, and he was about loading the seventh and last, out of the center car. He was just upon the point of driving his team up alongside of the center car. The switch engine was coming on the Morrison track, headed east. The horses on the wagon were headed nearly west. The off-horse, the one nearest the freight car, was not a safe one, and deceased knew it; the near horse, a black, was. The off-horse had run away, and was afraid of an engine and cars, and deceased had frequently been told he was unsafe. He was the successor of a safe mate of the black. As the engine came towards the place of collision, its speed was slackened, and its motion must have been quite slow ■—nearly stopped when the collision took place. We do not perceive in what respect the engineer and fireman managed the engine improperly. It is a little difficult to describe exactly how the wagon and engine came in contact; but about one thing there seems to be no conflict, and that is, that the southernmost hind wheel of the wagon and the cylinder on the north side of the engine came together, so as to dent or bruise the brass of the cylinder, and that the position of the wagon at the time of contact was longitudinally nearly northwest and southeast; and it is also almost conclusively shown that the wagon was backing instantly before the contact. If while the backing was in progress, the wagon tongue and reach formed one right line, the'hind wheel would make a right line track. If the end of the wagon tongue was south of the line of the reach, the track of the hind wheel would be curved with the convex side to the north. If the end of the tongue was to the north of the line of the reach, the track would be also curved, but with convexity towards the south.

For all practical purposes, if there were backing southeastwardly so that the south hind wagon wheel came in contact with the north cylinder, we may take the above case of a right line track of the hind wheel, wre would then have the wagon moving southeasterly, the engine slowly easterly, and contact as above. What is the effect upon a man standing in the wagon, where men usually stand while driving? The momentum of the wagon is destroyed by the contact. The momentum of the center of gravity of the man continues, throwing it outside of the base southeasterly. The south side-board of the wagon prevents the man from saving himself, and he plunges diagonally southeastwardlv over the side-board. If the contact of the locomotive, moving eastwardly, should slide the wagon laterally northward, the base of the man would move northwardly faster than the center of gravity, and the fall would be aided and made more southward. The man, thus falling, so fell that an engine-wheel passed over his arm. There was amputation, and he died in two days. Probably the headlong fall, rather than the crushing of the arm and amputation thereof caused the death. That it would not have happened if the predecessor of the unsafe off-horse hand been by • the side of the safe near horse, no one can doubt. He would have been safe enough as it was if he had got out in time, and stood at the head of the horses, or if he had called upon those who were helping him load, to take them by the bits, but he was evidently a man who did not like to ask any one to help him manage' a pair of horses. He could attend to that himself.

We are not disposed to attach much importance to the admitted evidence, as to what Gault said to Wilcox. It was a mere repetition of that which had frequently occurred before on allowing deceased to have his preference as to the place of loading, with the same caution, frequently given before, i. e., “ the house track is not as proper as the southernmost one, but if you prefer it with its greater danger, we will tolerate it, once more if you will be speedy about your work.” We do not suppose that deceased, or appellant contemplated that the business of switching was to be suspended, while the deceased was at work, but that it was to continue as it had before, when the engine had, on repeated occasions, passed and repassed about its work while deceased was about his. We do not understand it to be the declaration of agents about past transactions, but in the nature of unenforced advice given by a superior to an inferior. Although the case seems to us to be one where there is much evidence tending to show negligence on the part of the deceased, and much tending to show that the engine was prudently and properly managed, while passing the wagon and horses, and that the motion of the engine had almost entirely ceased at the time of contact, that deceased was not borne along by it; that it did not pass on and leave him, but that he was taken up from the side of the engine, at the place where he fell; still as two juries have found against the defendant, (70 Ill. 276), we do not feel justified in reversing merely because the verdict is against the evidence.

We, therefore, pass to the consideration of the question whether there was any erroneous ruling.

We have already, incidentally, said all we desire to about the Gault and Perry conversation.

As we have tioncluded to reverse, for reasons hereafter mentioned, it is perhaps unnecessary to say anything about the variance between the proof and allegations other than to suggest to appellee, whether it would not be prudent to amend the declaration by inserting therein an allegation that appellant negligently suffered and permitted deceased to load and unload in dangerous proximity to the Morrison track, etc., so that we will not have that question here the next time the case comes up, if ever. •

Plaintiff’s first given instruction is defective in this, to-wit: It states that if the said Horace Clark was, at the time he was killed, using reasonable care and caution to avoid being injured, and defendant was negligent, etc., the jury must find defendant guilty. If, instead of the words “ was at the time using,” the simple word “used” had been adopted, the instruction would have been accurate. The language, as it stands, renders it unnecessary for deceased to have avoided taking an unsafe horse there, to have hitched the off-horse to the freight car, to have driven him westwardly and northerly around the west end of the freight house, or to to have called for his fellow-workmen to take the horses by the bits, or to have done so himself, though such conduct would have made it absolutely safe for deceased. No matter what previous neglect there had been, if he were not negligent at the time of the collision, he could recover, according to this instruction. See Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290 ; Deville v. Southern P. R. R. Co. 50 Cal. 383; Quinn, adm’x v. I. C. R. R. Co. 51 Ill. 495; C. B. & Q. R. R. Co. v. Daniel, 81 Ill. 450; P. W. & B. R. Co. v. Stinger, 2 Cent. Law Journal, 555.

The third instruction given for plaintiff, is as follows. It is somewhat novel:

3. “ If the jury believe, from the evidence, that at the time the accident in question occurred, the said Horace Clark was engaged in unloading freight from a freight car of the company at a place upon the company’s depot grounds, where he had been directed or permitted by the company so to do, and that in unloading said freight, said Clark was using a horse, restive or skittish when in the vicinity of moving cars or engines; and if they further believe from the evidence, that the said character of said horse was then well known to the agents of the company running the engine which inflicted the injury in question; if the jury believe, from the evidence that such injury was inflicted by said engine, then it was the duty of said agents to be especially careful in operating said engine in the immediate vicinity of said horse, and to use all reasonable and proper care to avoid causing any accident by frightening said horse.”

The deceased had been warned about his skittish off-horse, and told that he was dangerous in the neighborhood of locomotives.

Is it possible that railroading must stop, or be conducted with especial care and caution every time an unwelcome and annoying animal is brought into the neighborhood of the appellant’s engine, against the oft repeated intimations of appellant’s servants that the driver should keep him away?

Would it not have been a proper answer to a request to “ stop switching, because you will scare my horse,” to say “the law does not allow you to bring your unsafe horse into such dangerous places? We cannot stop our trains, or our switch engines. We have told you that we did not want him here.” The instruction is not based upon the fact, that the company had allowed and permitted the use of the restive or skittish horse, but simply on the ground that deceased had been directed or permitted to unload freight at the place where he was unloading it. The instruction as applied to the evidence, is, that although you are using the unwelcome horse at the permitted place of unloading, the engineer and fireman must take especial care not to frighten this animal, improperly there.

It may be, that to a certain extent the care and caution of a defendant should increase as that of a plaintiff diminishes; or rather that the defendant should be more careful to protect one incapable of self-protection by reason of drunkenness, mental imbecility, tender years, or the like, but we do not think that the willful neglect of a plaintiff fully able to protect himself, should be urged as a reason why he should recover, or that the care and caution of the defendant should be anything more than ordinary, because of the carelessness of the plaintiff being so great. The words “ especial care ” have no fixed legal signification, and with prejudiced jurors, if there should be such, might mean what they desired to have them. This instruction also excludes the consideration, that although the horse was restive or skittish, the engineer and fireman may have believed that under the coiltrol of the deceased there was no danger, as they had passed the team safely so many times before with the engine. It should, at least, have had added to it, “ and that if, because of such restiveness or skittishness the engineer and fireman had reason to apprehend danger, they should have taken more than ordinary care, i. e., especial care. It would have been proper to have said that what amounts to ordinary care depends upon all the circumstances in evideñce in this case. But the rule should always be ordinary care, under the circumstances in evidence, though what would be ordinary care in one case might not be in another condition of the facts.

Exception is also taken to the plaintiff’s fifth instruction, allowing as an element of damage the loss of the physical, moral and intellectual training which the children would have received from their father if he had lived, because there is no evidence on which to base it. Counsel have overlooked the evidence of McKinney, with whom the widow was raised from a child. He says, “I think his moral character and conduct towards his family, in reference to their moral education and instruction was good.” The instruction is a substantial copy of the one on p. 294 of the 52 Ill.

We are inclined to think that there was nothing in the defendant’s fifteenth, seventeenth and eighteenth refused instructions, which could not, if the jury was not pressed for time, have been discovered in the eighteen given instructions, by the exercise of reasonable research.

For the reasons aforesaid, we think another jury should pass upon the case, and therefore, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Pillsbury, J.

text:
    Franklin Miller v. The Buckeye Mutual Fire Insurance Company.
    Submission and award — Pleading—Non bst factum.—Plaintiff brought suit upon an award of arbitrators, and in his declaration counted upon a written submission, and made profert thereof, to which defendant filed a plea denying that such submission was. ever made by defendant. Plaintiff demurred to the plea. 3eld, that the plea presented a good defense. The demurrer admitted the truth of the facts alleged in the plea, and if there was no submission the award was not binding. Where the action is upon an award it is necessary to allege a mutual submission.
    Appeal from the Circuit Court of Stephenson county; the Hon. J. V. Eustace, Judge, presiding.

      Mr. Henry C. Hyde and Mr. J. I. Heff, for appellant;
    that arbitrators are considered the agents of both parties, cited Ballance v. Underhill, 3 Scam. 453; Morse on Arbitration, 106.
    That every reasonable intendment will be indulged to sustain an award: Karthus v. Ferrer, 1 Pet. 222; Butler v. The Mayor, 1 Hill, 489; Merritt v. Merritt, 11 Ill. 565.
    The award concludes the parties from again litigating the same subject matter, and is a bar to a suit upon the original .cause of action: Smith v. Douglass, 16 Ill. 34; Armstrong v. Martin, 11 Johns. 189; Gerrish v. Ayers, 3 Scam. 245.
    The award will not be set aside, though the submission may not be in conformity with the statute: Eisenmeyer v. Sauter, 77 Ill. 515; Colcord v. Fletcher, 50 Me. 400; Mitchell v. Wilhelm, 6 Watts, 260; Fox v. Hazleton, 10 Pick. 275; Norton v. Savage, 10 Me. 456; Randolph Co. v. Ralls, 18 Ill. 29.
    Mr. Andrew Hinds and Mr. E. P. Barton, for appellee;
    argued that adjustment of differences by arbitration was purely statutory, in derogation of the common law, and the parties must bring themselves within the provisions of the statute, and cited Senior v. Brebnar, 22 Ill. 252; Moore v. Hamilton, 2 Gilm. 429; Ætna Ins. Co. v. Stevens, 48 Ill. 32.
   Pillsbury, J.

Action of debt upon an award, commenced by the appellant against the appellee, in the Circuit Court of Stejihenson county. The >declaration contained five counts originally, to which the defendant pleaded, and-?. a general demurrer being overruled to all the pleas except the first, the plaintiff dismissed all the counts in his declaration but the second and third, and the defendant withdrew its first plea. The plaintiff thereupon abided by his demurrer to the third, fourth and fifth pleas to the second and thirds counts in the declaration, and judgment was rendered for the defendant for its costs.

The plaintiff thereupon appealed to this court, and assigns for error the overruling of such demurrer. The second and third counts set out the agreement or submission in Tioee verba, declaring that the plaintiff and defendant duly executed the same, and makes jprofert thereof, and alleges that it is in the words and figures following:

“ State of Illinois, ) Stephenson County. )

“ In the matter of claim made by Franklin Miller for'loss by fire, under policy of insurance Ho. 770, in the Buckeye Mutual Fire Insurance Company.

“ Whereas, Henry C. Hyde, county judge of Stephenson County, upon an appeal to him for that purpose, made by Franklin Miller, in the matter of said loss by fire, did, on the 18th day of January, A. D. 1878, in pursuance of a notice and application for that purpose, appoint William Askey, Oscar Taylor and Abram T. Green, as a committee of reference, to determine matters of dispute between said Franklin Miller and the said Buckeye Mutual Fire Insurance Company, in relation to said loss by fire under said policy of insurance, said appointment having been made by said county judge, in pursuance of an act of the legislature of the State of Illinois, entitled ‘An act to authorize the formation of township insurance companies,’ and also of one of the provisions of said policy of insurance.

“ And whereas, objection has been made by said Buckeye Mutual Fire Insurance Company to the appointment of the persons composing said committee of reference, for the reason that they were not present at the time such appointment was made. And whereas, the hearing of said matter of dispute between said Franklin Miller and said Buckeye Mutual Fire Insurance Company was by the committee of reference aforesaid postponed until Wednesday, January 23d, at ten o’clock in the forenoon of that day.

“And whereas, said Buckeye Mutual Fire Insurance Company, by William Wagenhals, its president, and George J. Donmeyer, its secretary, and Franklin Miller on his own part, have mutually agreed that the following named persons, to wit: Edward L. Conkrite, James S. Taggartand J. H. Pierce, shall be substituted for, and take the place of, the committee of reference hereinbefore named as having been appointed by the county judge of said county, and in all respects act and dispose of said matter of dispute between the said Buckeye Mutual Fire Insurance Company and the said Franklin Miller, the same as if they had been originally appointed by said county judge of said county on an appeal for that purpose to act as a committee of reference in the matter of said dispute; objections being hereby waived to the manner and form of this appointment, ^neither of the parties hereto waiving any rights they may have had under the original appointment by the county judge as aforesaid.

“ It is agreed that said Edward L. Conkrite, James S. Taggart and J. H. Pierce, shall meet as such committee of reference, at the county court room, in the court house at Freeport, to hear and determine the matter of dispute aforesaid, on Wednesday, the 23d day of January, A. D. 1878, at 10 o’clock in the forenoon of said day.

“ In witness whereof, the said Buckeye Mutual Fire Insurance Company has caused these presents to be signed by its president, and attested by its secretary, and the said Franklin Miller has hereunto set his hand, this 18th day of January, A. D. 1878.

“ The Buckeye Mutual Fire Insurance Company,

“ By William Wagenhals, its President,

“ Franklin Miller.

“Attest:

“ George J. Donmeyer,

“ Sec’y Buckeye Mutual Fire Insurance Company.”

Each of said counts also contains a verbatim copy of the alleged award upon which the action is based.' The third and fourth pleas to these counts seek to raise the question of the jurisdiction of the county judge, and of this committee of arbitration, under the charter and by-laws of the company, and the conditions contained in the policy, which questions we have deemed unnecessary to consider, inasmuch as in our opinion the fifth plea constitutes a perfect defense to the actions.

The fifth plea is as follows:

“And for a further plea to said second and third counts in said declaration, said defendant says aetio non, etc., because it says it did not execute the instrument in writing in each of said counts in the words and figures set forth, and in each of said counts alleged to have been executed by this defendant, and of this said defendant puts itself upon the country, etc.

“Andrew Hinds,

“ E. P. Barton,

“ Def’ts’ Attorneys.”

These counts in the declaration as a foundation for the jurisdiction of the arbitrators to act, allege veiy properly the execution of the submission. The plea denies that the defendant ever made the same, and the demurrer admits the truth of the plea. If there was no submission, of course the award is not binding upon the defendant. Where the action is upon the award it is necessary to allege in the declaration a mutual submission. Cole v. Chapman, 2 Scam. 35.

The fifth plea, therefore, presenting a good defense to the action, the judgment for defendant was right. One good plea is sufficient to bar the action. Evans v. Anderson, 78 Ill. 607.

The judgment must be affirmed.

Judgment affirmed.


text:
    Horace Waters et al. v. Robert M. Cox et al.
    1. Contracts—Lex loci.—Although, as to personal property, the general rute may be that the law of the domicile of the contracting party governs, because chattels have no situs except that of their owner, still, if the contract be in relation to personal property situated at the time of contracting in the foreign jurisdiction, the lex loci should govern.
    2. Property purchased in another State.—So where a piano was purchased in the State of Michigan, under a contract which by the courts of that State has been construed to be a mere bailment, and the purchaser removes to this State, the courts here will construe such contract in accordance with the rule established in Michigan, and the party, or those claiming the property through him, will acquire no other or greater right or ownership in the property than could have been acquired under the contract had he remained in Michigan.

      3. Mortgage of such chattels—Rights of mortgagee.—The purchaser having no right under the contract to mortgage the property while residing in Michigan, he cannot, on removing to this State, execute a chattel mortgage which will be valid as against the claims of the bailor.
    Appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Mr. Geo. Putebbaugh, for appellants;
    contending that the law of the place where the contract was made should govern its construction, cited Bradshaw v. Newman, Breese, 133; Stacy v. Baker, 1 Scam. 417; Phinney v. Baldwin, 16 Ill. 108; Mumford v. Canty, 50 Ill. 370; Blyston v. Budgett, 10 Ind. 28; Cox et al. v. United States, 6 Pet. 172; Smith v. Hutchings, 30 Mo. 383.
    It is a legal presumption that a contract is to be performed where made, unless a different place is specified: Lewis v. Healey, 36 Ill. 433; Denny v. Williams, 5 Allen, 1; McAllister v. Smith et al. 17 Ill. 328; Roundtree v. Baker, 52 Ill. 241.
    A court can take notice of a contract only by the light of the laws where it was made: Smith v. Whittaker, 23 Ill. 367; Adams v. Robertson, 37 Ill. 45; Roundtree v. Baker, 52 Ill. 241.
    Contracts made in another State will be enforced here, though not conforming to the laws of this State, where they are not based on immoral considerations: Mumford v. Canty, 50 Ill. 370; Story on Conflict of Laws, § 242; Kanago v. Taylor, 7 Ohio St. 134; Booker v. Stacy, 25 Miss. 471; Holt v. Renwick, 11 N. H. 285; Langworthy v. Littell, 12 Cush. 111; Knowlton v. Erie R’y Co. 19 Ohio St. 260; Dyke v. Erie R’y Co. 45 N. Y. 113; Hill v. Spear, 50 N. H. 253; Boothby v. Plaisted, 51 N. H. 436; Levy v. Levy, 78 Pa. St. 507; N. S. Bank v. Donnelly, 8 Pet. 379; Wilcox v. Hunt, 13 Pet. 379; Andreas v. Pond, 13 Pet. 65.
    One State will regard and enforce the laws of another State with reference to which the parties contracted: Groves v. Nutt, 13 La. 117; Hughes v. Klinguder, 14 La. 845; Blanchard v. Russell, 13 Mass. 1; Prentiss v. Savage, 13 Mass. 20; Martin v. Hill, 12 Barb. 631; Forward v. Harris, 30 How. 338; Cox v. United States, 6 Pet. 172; McDougal v. Rutherford, 30 Ala. 686; Walker v. Forbes, 31 Ala. 9.

      A contract is to be construed by the laws of the place where, by its terms, it is to be performed: Gaddin v. Shipley, 7 B. Mon. 575; Brodhead v. Noyes, 9 Mo. 157; Sherman v. Gassett, 4 Gilm. 521; Bumers v. Clemens, 58 Pa. St. 24; Evans v. Kittrell, 33 Ala. 449; Thompson v. Ketchum, 4 Johns. 285; Pomeroy v. Ainsworth, 22 Barb. 118; Boyd v. Ellis, 11 Iowa, 97; Tyler v. Shipman, 33 Iowa, 194; Ferguson v. Fyffe, 8 Cl. & F. 121; Roundtree v. Baker, 52 Ill. 241.
    Under the laws of Michigan, a conditional sale, where the property is to remain in the vendor until payment, creates a bailment, and the vendee is only a bailee: Whitney v. McConnell, 29 Mich. 12; Cause v. Tregent, 11 Mich. 65; Trude v. Anderson, 10 Mich. 357; Deyo v. Jamison, 33 Mich. 94; Johnson v. Whiteman, 27 Mich. 463; Giddy v. Altman, 27 Mich. 209; Preston v. Whitney, 23 Mich. 267.
    A bailee can grant no more interest than he has in the thing: Burton v. Curyea, 40 Ill. 320; Bremer v. Peabody, 8 Kernan, 121; Daws v. Perrin, 16 N. Y. 325; Newsom v. Thornton, 6 East. 17; Fawcett et al. v. Osborne et al. 32 Ill. 411.
    Messrs. Cbatty Bros., for appellee;
    that the contract of sale with delivery of possession to the vendee, the title to remain in the vendor, is void as against the creditors of the vendee, cited Green v. Van Buskirk, 5 Wall, 307; Hervey et al. v. R. I. Locomotive Works, 3 Otto, 664.
   Leland, J.

The facts in this case as agreed to in the bill of exceptions, are as follows: Appellants, who are residents of Flew York, make and sell pianos. They had an agent for the sale of their instruments at Grand Rapids, Michigan. On the 10th of Ffovember, 1874, at Grand Rapids, they delivered a piano to one James W. Burrows, who gave them two notes of that date therefor, one due twelve months and the other eighteen months after date; these notes bore date at Grand Rapids, and they had each thereunder written the following, viz.

“ The above note is given by the maker to Horace Waters & Son as evidence of a part of the price to be paid by said maker, fur a certain style 5 piano, numbered 15,696, made by Waters, if. T. owned "by Waters & Son, which they have agreed to sell and have delivered to said maker.

“ But it is distinctly understood and agreed between said parties, that said Waters & Son have not sold, but have only agreed to hereafter sell the said instrument to said maker, and that said instrument is to remain and continue the property of said Waters & Son, until said note and one other note made by said maker for the same purpose, each for the same amount, are fully paid, and a bill of sale of said instrument is given by them, therefore, and that until that time said maker has no property in and no right to sell, mortgage, pledge or make any other disposition whatever of the said instrument.

“ This statement may be detached from the above note without being deemed an alteration or mutilation thereof.

“ James W. Bubbows.

“ Witness:

“ J. A. Bubbows, Sb.”

That said Burrows has never paid said notes, nor any part thereof, nor have plaintiffs ever given said Burrows a bill of sale for said piano.

That afterwards, on or about the first day of August, 1875, Burrows removed from Michigan to Peoria, Blinois, taking with him said piano, without the knowledge or consent of plaintiffs; and afterwards, without the knowledge or consent of plaintiffs, said Burrows executed a chattel mortgage on said piano, as hereinafter stated. Either party to refer to the laws of Michigan without verifying the same, except as directed by the Court, for its own satisfaction.

That the piano replevied was brought by said Burrows from the State of, Michigan, and he used it in his theater, in Peoria, Illinois.

That soon after coming to Peoria, Illinois, to-wit: about the 19th day of ETovember, 1875, said Burrows became indebted to defendants for $500, and to secure payment said Burrows made and executed a chattel mortgage on a large amount of his personal property, including the piano replevied in this suit, which mortgage was duly acknowledged and recorded, as required by the statute of this State.

That afterwards executions were issued on judgments obtained against ‘said Burrows, who also made default in the conditions of said mortgage. Whereupon defendants foreclosed said mortgage in the usual manner, by placing the same in the hands of the officer who held the executions against said Burrows, and under the said executions and mortgage above referred to, the officer took full possession, as to the requirements of the statute relating to mortgages, of the whole of the personal property of said Burrows, including the said piano, and offered the same at public auction, after having duly advertised by posting notices. At the sale of said property the same was struck off and bought in by said defendants, the proceeds of said sale being insufficient to pay amount of said mortgage. Upon purchasing said piano, said defendants took possession thereof, and continued in the full and peaceable possession of the same until the commencement of this suit.

This was all the evidence introduced by either party.

Appellants replevied the piano in Peoria; there was a trial by the court without a jury, and finding and judgment for appellees. If the above facts had all transpired in this State, there could be no doubt of the correctness of the finding below, but it is claimed that in Michigan the above contract is a valid one, and that by the law of that State, Burrows was a mere bailee, and that the appellants could there have maintained replevin for the piano, even against a Iona fide purchaser for value from Burrows, and this seems to have been so adjudged in Michigan. We are not advised that any of the following "cases to that effect have been overruled: Couse v. Tregent, 11 Mich. 65; Preston v. Whitney 23 Mich. 267; Johnson v. Whitmore, 27 Mich. 463; Whitney v. McConnell, 29 Mich. 12; Deyoe v. Jamison, 33 Mich. 94.

Such we understand still remains the law in Michigan.

It is claimed by appellee that appellants permitted Burrows to remain in Peoria from August 1st, 1875, to November 19th, possessing and claiming the piano as his; that the first note had matured nine days before Burrows executed the mortgage in Peoria; that appellants had an agent in Grand Rapids, and that it is reasonable to presume that the agent knew of Burrows leaving, and where he was.

If the evidence warrants the conclusion that appellants negligently suffered and permitted Burrows to bring the piano to, and deal with it as his own in this State, the lex loei rei sitce might govern, but negligence and knowledge of this kind ought not to be inferred under the stipulation in this case. Ho such cohstruction should be put upon the stipulation, which is that appellants did not know of nor consent to the removing, nor the mortgaging of the piano. There is nothing in the stipulation justifying the inference that appellants knew where the piano was at any time before the replevying. See, however, on this subject, Born v. Shaw, 29 Penn. St. 288.

If they did know it after the purchase, at the sale by appellee, the delay to sue did no harm to appellees, though it might have done to purchasers from appellees. As Burrows, by the law of Michigan, was not the owner, but merely a bailee, he could confer no greater right to the mortgagee by the mortgage than he had himself, and that the piano could, have been replevied from him is clearly apparent.

In the case in the 29th Michigan it is true the contract provided that the piano should remain at the residence of the bailee until the written assent of the bailor should be given to move the same. The contract in the case in the 11th did not contain any such clause, and so in the other cases. We do not think the casein the 29th differs from the others because of this clause, nor that for the want of such clause Burrows had the right to move the piano out of the State, and thus find a purchaser who could hold it as moved out with consent of appellant. The bailee had no right to dispose of it at all without the consent of the bailor. We use the expression bailee because the Supreme Court of Michigan treats the conditional vendee, under the conditional executory contract, as a bailee merely. We are referred by appellees to the cases of Green v. Van Buskirk, 5 Wallace, 307, and same case, 7 Wallace, 139, and Henry v. Rhode Island Locomotive Works, 3 Otto, 664. We concede that these cases might be in point if appellants had permitted the piano to be brought to this State, but the stipulation is that it was brought here and mortgaged with'out-their knowledge or consent. Suppose the piano had been loaned or hired out to Burrows for a week only, and he had taken it to Peoria and done with it precisely what he did, the hardship to appellees would have been just as great; and yet no one would question appellant’s right to pursue and replevy it. If, therefore, by the law of the place of the contract, Burrows had no right to dispose of the piano to a purchaser for value, so that the purchaser could hold it against appellants, what is the difference? If he could not do so in Michigan, he surely could not in Illinois, unless appellants had allowed the piano to become subject to the laws of Illinois. Surely not if it was brought here and mortgaged against their knowledge and consent.

Although the general rule may be, that as to personal property the law of the domicile of the contracting parties governs, because chattels have no sifat,s except that of their owner, still if the contract be in relation to personal property, situated at the time of the contract in the foreign jurisdiction, the lex loci would govern; this distinction appears in the case cited from Otto, and also in Green v. Van Buskirk, reversing the decision of the Supreme Court of New York, where the law of the domicile was applied, and so it was in the dissenting opinion in 5 Wallace.

See, also, Story on Conflict of Laws, where the whole subject is exhaustively treated, and particularly see sections 385 to 395. Appellant’s counsel has referred the court to a very large number of cases in support of the position that appellant’s right to the piano depends upon the law in Michigan. Among them are cited a few from this State, as follows: Bradshaw v. Newman, Breese 133; Stacy v. Baker, 1 Scam. 417; Phinney v. Baldwin, 16 Ill. 108; McAllister v. Smith, 17 Ill. 333; Smith v. Whitaker, 23 Ill. 367; Lewis v. Hadley, 36 Ill. 433; Adams v. Robertson, 37 Ill. 45; Mumford v. Canty, 50 Ill. 370; Roundtree v. Baker, 52 Ill. 241.

We have examined as many of the authorities cited with others, as we deemed it necessary to do, and we have arrived at the conclusion that the case is one where comity requires the application of the lex loci contractus, and that a case of exception is not made out which renders the lex fori applicable. There are many exceptions to the general rule, and these exceptions are sometimes so strongly stated as to seem to amount to an abolition of the rule itself. It is sometimes said that if the contract be immoral or unjust, and that enforcing it will be injurious tp the rights, the interest, or the convenience of the State, or its citizens, or if the lex loci contractus and the lex fori come in direct collision as to conflicting rights acquired in each, the comity of nations must yield to the positive law of the land, and if there be an express statute, this might well be so.

If in all cases where the laws of the two places differ, the lex fori is .to control, there could never be any question. Where there is no conflict, but both laws are alike, there would be no necessity for choice.

After careful consideration and reflection upon the vexed question, while we may regret that the doctrine of the Michigan Supreme Court, according to the cases-cited, is not the same as that of our own Supreme Court (Murch v. Wright, 46 Ill., 487, and previous cases), we feel compelled by comity to apply the lex loci contractus to the peculiar facts in this case, and reverse the judgment and remand the cause.

Reversed and remanded.


text:
    Fabian Langdoc, use, etc. v. Mahlon Parkinson et al.
    1. Suit on replevin bond—Breaches.—Appellees executed a bond in replevin, conditioned, first, to prosecute the suit with effect; second, make return of said property, if return thereof be awarded; and third, save and keep harmless the officer in replevying the same. Upon the impaneling of a jury to try the replevin cause, the plaintiff took a nonsuit. This was a clear breach of the first condition in the bond.
    2. Damages for not returning property—Proof of.—On the trial in Circuit Court for damages, by reason of a breach of the conditions of the bond, the fee-book showing the taxation of defendant’s costs before the justice, was offered in evidence and excluded. This fee bill included items, as costs, for service and return of writ of retorno, etc. If there was a breach of the bond in not returning the property, plaintiff should have been allowed to show the costs incurred in getting the property back, if not all the other items in the bill of costs, and the court erred in excluding the fee bill as evidence.
    3. Costs on writ of betobno.—The costs of a writ of retorno hdbendo are not the recovered costs in the judgment, but costs accruing after, of enforcing the judgment, and such costs are recoverable under a breach of the second condition of the bond mentioned.
    4. Recovery of all costs in the replevin suit.—Under the first breach, and perhaps under the others, the costs which the defendant recovered by reason of the failure to prosecute the replevin suit with effect, may be recovered.
    Appeal from the Circuit Court of Iroquois county; the Hon. Feanklin Blades, Judge, presiding.
    Mr. Kobebt Doyle, for appellant;
    cited Petrie v. Fisher, 43 Ill. 442; Fahnestock v. Gilham et al. 77 Ill. 637; Stevison v. Earnest, 80 Ill. 513; Atkins v. Moore, 82 Ill. 240.
   Leland, J.

This was an action on a replevin bond, in the usual form, given by appellees, the former as principal, and the latter as security, to Fabian Langdoc, as Coronor of Iroquois county. Parkinson brought replevin for a stallion against Pearson, the cestui que use.

A jury was impaneled in the replevin suit, and, thereupon, the plaintiff, Parkinson, took a nonsuit. There was judgment of return of the stallion, and that defendant Pearson have and recover of the plaintiff Parkinson his costs and charges. The suit was* commenced before a justice, and of course the pleadings were oral. The justice, according to his transcript, after careful consideration decided that plaintiff have and recover of defendants $18.95, and costs taxed at $9.90. The Circuit Court, a jury having been waived, found for the defendants.

The bill of exceptions contains the bond, the judgment of return in the replevin suit, and for costs; also the fee book with the taxation of defendant’s costs, at$19.40. The court, however, excluded the evidence of the taxation of costs as incompetent.

The conditions of the bond were: first, that Parkinson should prosecute his suit to effect, and without delay; second, make return of said property, if return thereof shall be awarded; third, save and keep harmless the said Coroner in replevying said property.

It did not appear on the trial whether the stallion had or had not been returned, and there was no evidence of his value. From the items of costs in the excluded taxation of them, it would seem that a writ of retorno habendo had been executed. Such items as these appear: “Retorno habendo service, 65 cents; 8 miles travel, 40 cents; return of writ, 10 cents; levy, 65 cents; 6 miles travel, 30 cents; keeping horse levied on, .00.”

If there were a breach of the bond for not returning the horse, as is apparent from the above items in the fee bill, it was error to exclude this taxation of the costs which Pearson or Langdoc incurred in getting back the horse, which plaintiff in the replevin suit caused him by not performing his obligation to return. Plaintiff below, if he had obtained the horse back by virtue of the power of the writ, would gain nothing by showing it unless he could prove what it cost him to get him back. The court did not sustain the objection to the fee-book because the offered evidence was out of its proper order, but because it was incompetent. It would, perhaps, have- been more orderly to have proved first, the compulsory, not voluntary, return; and second, the expense of the compulsion to do that which it was Parkinson’s duty to have done without compulsion, and other damage because of the detention, if any. We think, therefore, plaintiff should have been permitted, under the second breach, to prove what it cost to get the stallion returned by process of law, if not all the other items in the bill of costs. There may, of course, be other damage besides this. If Parkinson did not return the horse, and there was consequent expense in order to obtain him, with other damage, there was a breach of the second condition of the bond, and damages more than nominal. If the objection had been sustained, on the ground that the breach should be first proved, and the damages thereafter, there would have been no error in the exclusion.

The costs of the writ of retorno habendo are not the recovered costs in the judgment, but are costs accruing after judgment; costs of executing or enforcing the judgment. We see no reason why such costs are not recoverable as damages on the second breach of the bond, if as mentioned.

We think, however, the law is, that under the first breach, and perhaps under all and each one, the costs which the defendant recovered because of the failure of plaintiff to prosecute the replevin suit to effect by taking a nonsuit—that is, the defendant’s costs recovered in that suit—are properly allowable as damages.

The replevin bond is as well for the benefit of the party defendant in the replevin suit as for the officer. Fahnestock v. Gilham, 77 Ill. 637.

As to allowing costs as damages, see Morris on Replevin, 265; Tibbal v. Cahoon, 10 Watts, 232; Balsey v. Hoffman, 1 Harris (Pa.) 603; Arnold v. Bailey, 8 Mass. 145; Lutes v. Alpaugh, 3 Zab. (N. J.) 165; Leighton v. Brown, 98 Mass. 515; Seldner v. Smith, 40 Md. 602; Peacock v. Haney 37 N. J. L. 179.

That there was a breach of the first condition of the bond is clearly proved, and that there should have been judgment for plaintiff, we have no doubt. Humphrey v. Taggart, 38 Ill. 228. That there should have been damages for not returning the stallion, if there were a breach of the second condition, is also clear. The amount of the damages would, of course, be less if defendant in' replevin received his horse, though by means of compulsion, than if he had never obtained him. The book containing the taxation of costs should not have been excluded.

Beversed and remanded.


author: Sibley, P. J.

text:
    Jonathan N. Hyde et al. v. Ezekiel Howes.
    1. Parties—Non-joinder—Must re pleaded.—An objection that another person is jointly liable with the defendants, can he taken advantage of by plea in abatement only. Whether a formal written plea is necessary, in actions commenced before a justice, is immaterial, since the oath or affidavit that must accompany such plea, has not been dispensed with by the statute.
    2. Former judgment — When a bar.—A judgment is conclusive upon the parties only in respect to the grounds covered by it, and the law and the facts necessary to uphold it. There being nothing in the record in this case, to show that the question in controversy was adjudicated by the court in a former trial, the former judgment does not constitute a bar to this proceeding.
    3. Hearsay—Not admissible.—The plaintiff should not have been permitted to state that he commenced the work in question, in consequence of information purporting to come from the defendants. Proving what he had heard without in any way connecting the defendants with the truth of the report, was hearsay testimony and not admissible.
    Appeal from the Oircuit Court of Lee county; the Hon. William Bbown, Judge, presiding.
    Messrs. Dixon & Bethia, for appellants;
    that the facts in issue were determined in a former suit, and the appellee is estopped from again asserting them, cited Freeman on Judgments, § 257; Herman on Estoppel, § 81.
    It is not essential to such estoppel, that all the parties should he the same in both causes: Bigelow on Estoppel, 60; Davenport v. Bennett, 51 Ind. 329; Ragor v. Kendall, 70 Ill. 95; Mack v. Brown, 73 Ill. 295.
    Mr. D. D. O’Bbien, for appellee;
    cited Freeman on Judgments § 267; Bigelow on Estoppel, 97; Baker v. Cleveland, 19 Mich. 230.
   Sibley, P. J.

In November 1877, Ezekiel Howes commenced suit before a justice of the peace of Lee county, to recover of J. N. Hyde, Geo. M. Berkley and Geo. L. Schuler, a balance claimed to be due him upon a contract for ditching some swamp lands, which it was supposed would benefit the appellants as well as other adjoining owners. Before the justice the plaintiff recovered a judgment of $175 by default. The defendants appealed to the Circuit Court of that county, where upon a trial by jury, the same result was obtained and an appeal was there taken to this court.

One of the errors here assigned and urged with much apparent earnestness, we do not think it proper to consider, for if, as it is supposed, that Col. Dement was jointly liable with the other person sued, this error could have been taken advantage of by a plea in abatement only. 1 Chitty Pl. 46; Saunders, Pl. and Ev. 13; Lurton v. Gilliam, 1 Scam. 577. Whether a formal written plea was necessary or not, is immaterial, since the oath or affidavit that must accompany such a plea has not been dispensed with by any statutory provision. Hor is the fourth error assigned well taken. For the newly discovered evidence is entirely cumulative and not at all conclusive of the case. The same may be said of the point made, that appellee is estopped from asserting any claim he may have had against appellants by the record in a former suit commenced by Geo. B. Schuler against him, and determined by the court in favor of Schuler. It is insisted that the question of his liability with the other appellants was a necessary one for adjudication by the court, and therefore appellee is barred by way of estoppel. “ A judgment,” says Bigelow on Estoppel 22, “ is conclusive upon the parties only in respect to the grounds covered by it, and the law and the facts necessary to uphold it.” The doctrine established by the authorities does not vary the proposition. Then, inasmuch as there is nothing in the record to show that the question in controversy in this case was adjudicated by the court in that trial, what was there outside of the record to render it necessary that the court should have determined the rights of the parties in respect to the present cause of action ?

The matter to be decided on that trial was simply whether Ezekiel Howes was liable to Geo. B. Schuler on an individual indebtedness, and nothing else. Mo difference how that claim arose, whether by means of Schuler’s having, through mistake,. overpaid his private subscription to this work to Howes, or grew out of some other transaction, it certainly cannot necessarily be inferred that Howes, in the suit, undertook by way of set-off, to establish a joint claim in his favor against Schuler and the other appellants, and that the court investigated the claim and adjudicated the question of their liability to him.

In respect to the first error assigned, that the court should not have permitted the plaintiff to answer as a witness the question put to him, whether he did not commence work in consequence of information purporting to have come from one of the defendants, there appears to be nothing in the case to take the answer to this question out of the general rule of hearsay evidence, and was therefore objectionable. The plaintiff was then seeking to establish a liability on the part of the defendants, by proving what he had heard without in any way connecting them with the truth of the report. So the admission of what Moore said to the witness Watson, about the character of the work done, was erroneous. Moore was sent there for the purpose only of making a survey of the work, and had no authority, as agent or otherwise, to admit away any of the rights of the absent parties. If his opinion was desired he should have been called as a witness.

The only other errors assigned relate to the action of the court in refusing to grant a new trial. The passing upon this question has necessitated a close examination into the evidence in the case. We. do not propose to enter upon any detailed view of the testimony. But a word or two by way of the conelusion arrived at, may be considered not altogether inappropriate. Appellee, in his testimony, says that he made a verbal contract with appellants at the court house in Dixon, in the fall of 1876, to dig a mud ditch, and that it was necessary to take out two feet in order to get a proper start. His contract was 50 cents per cubic yard for the first two feet, and for this excavation the appellants agreed to become personally responsible to him. There was some talk of making it deeper, for which, if made, he was to have $1 per cubic yard. But no agreement on that occasion was entered into in respect to the latter portion of the work.

After he had taken out the first two feet he met the parties at Schuler’s store, and they settled with him for that job. Berkley then asked him about the digging of the next or third foot. Dement said for taking out that he would give §100. Schuler and Berkley offered §50 each. Hyde proposed §25. Berkley also remarked that they would get up a subscription, and told Howes to wait until he heard from them, and when enough was subscribed to take out another foot they would let him know. Some further conversation took place, but this is substantially all that appellee claimed was said by appellants in respect to becoming personally responsible to him for the work. A subscription paper was subsequently prepared, when these, with several other persons, subscribed the amount which they had agreed to pay. Howes afterward commenced the work, and as he was erroneously permitted to answer, against the objection of appellants, that it was in consequence of information purporting to come from one of them, having failed to show that such information did in fact come from any one of them. After he had commenced the work he says that Dement, Schuler, and, he thinks, Hyde and Berkley, viewed it. But he had no conversation with them during the time the work was progressing.

The real question is, what was the understanding of the parties as to whether the work was to be done by subscription, or that appellants agreed to become personally liable for it? Howes does not state that they made any promises of the kind, and all of the appellants swear positively that no such agreement was talked off. But that it was distinctly understood the work, after the first two feet, was to be done, if at all, by subscription alone and that they were not to he responsible for any more than the amount each severally promised and afterward subscribed to pay. If this was not the case it may be asked why did they tell Howes to wait till they had procured a sufficient subscription to do the work, and would notify him of that fact before commencing it? Why did Howes state to the witness Vrooman, while examining the subscription paper that he was ‘doing the work by subscription. Why were the sums named in that paper made payable to Howes, and why did he draw orders on the subscribers, reciting that the amounts subscribed by them were due him, if he was performing the work relying solely upon the promise of appellants to pay for it?

Yan Arnam, who was present at the first meeting of these parties at the court house, and was also a bidder for the job, testified that he declined to take it unless appellants and Col. Dement would become personally responsible for the pay, but it was understood, the work was to be done by subscription, and that Howes remarked at the time the subscribers were perfectly good, and he would take them. The four persons, however, concluded to have two feet taken out at their own expense, and Howes was to assist in getting up subscriptions and pay $50 himself. The fact has not escaped our attention, that opposed to this array of evidence, there are a few loose admissions made by the appellants or some of them, that they considered themselves liable to pay any balance that might remain after the subscriptions were all collected. Whether these expressions should be considered as a mere matter of .individual opinion, if made at all, or intended ás a promise made subsequently by way of indemnification, we do not think sufficient to obviate the necessity of awarding a new trial, for the reason that the verdict was clearly against the evidence.

Judgment reversed and cause remanded.

Judgment reversed.


text:
    Lewis H. Gillett v. Eliphalet Fuller.
    Assault and batteey.—Appellee commenced a quarrel with appellant and assaulted and beat him so that he was unable for several weeks to attend to his ordinary business. The record fails to show any evidence justifying the assault, and the verdict is so manifestly against the weight of evidence as to require a reversal. Under the evidence, appellant has sustained and should receive substantial damages.

      Appeal from the Circuit Court of Kane county; the Hon. T. D. Murpiiy, Judge, presiding.
    Messrs. Little & White, for appellant;
    that the verdict was clearly against the evidence, and a new trial should be granted, cited Puterbaugh v. Crittenden, 55 Ill. 485; C. & A. R. R. Co. v. Purvines, 58 Ill. 38; Smith v. Slocum, 62 Ill. 354; Knott v. Skinner, 63 Ill. 239; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; C. C. & I. C. R. R. Co. v. Troesch, 57 Ill. 155; Davenport et al. v. Springer et al. 63 Ill. 276; Schwartz v. Lammers, 63 Ill. 500.
    Mr. H. F. Hiohols and Mr. A. J. Hopkins, for appellee;
    contending that the case was one peculiarly within the province of a jury to decide, and, it appearing that substantial justice has been done, their verdict should not be disturbed, cited DeClurg v. Mungin, 46 Ill. 112; Union Hide & Leather Co. v. Schœnmann et al. 48 Ill. 74; Ottawa v. Sweely, 65 Ill. 434; Smith v. Schultz, 1 Scam. 491; Gillett et al. v. Sweat, 1 Gilm. 475.
   Pillsbury, J.

At a school meeting held in their district, for the purpose of electing a school director, the parties to this suit became engaged in a dispute about school matters, and high words passed between them.

The appellee commenced the quarrel, and soon advanced across the room in a threatening manner to where appellant was seated, talking with some of the electors present, and as appellant arose, Fuller struck him a most cruel blow upon the side of the head, cutting open the scalp, and knocking him about ten feet into the chimney corner; then followed him up, and as appellant seized a chair with which to defend himself he was again knocked down and beaten in a most brutal manner. The appellant was so severely injured, that he was unable for several weeks to attend to his ordinary business, a portion of which time he was under the care of a physician.

The appellant at the time was sixty years old, while the appellee was not over thirty years, weighing 200 pounds, strong and muscular, and the extent of the injury inflicted upon appellant with his fists, is sufficient proof of his fighting qualities.

This record is barren of any evidence tending to show excuse or justification for this unlawful act, yet the juryfound the defendant not guilty.

The evidence shows that the appellant owns five hundred acres of land in that school district, and pays a school tax of $280, and also owns one thousand acres of land elsewhere, while the appellee, in comparison, is poor; and undoubtedly this verdict is the result of that prejudice which, especially in these days, rest in the minds of many against those who have, by the exercise of industry and frugality, acquired more property than their less provident or less fortunate neighbors.

We can see no other basis in this record for this unjust verdict. Verdicts of not guilty, in actions both civil and criminal "where personal violence has been inflicted or attempted, where the proof of guilt is clear and positive, as in this case, have a direct tendency to bring the law itself into disrespect, its administration into contempt, and to induce the injured to take the law into their own hands.

If courts and juries will not so enforce the law as to protect ■the persons of the weak against the assaults of the strong, then we must expect them to place themselves upon an equality by the use of deadly weapons.

In criminal prosecutions the courts are powerless in case of an unjust acquittal, but must discharge the defendant and give him another opportunity to demonstrate his prowess. In actions for damages for personal injuries, however, the jury are not the final arbiters, and the courts in clear eases ought to see that he who unjustifiably beats his neighbor, shall respond in damages to the extent of the injury inflicted.

It is urged by counsel for the appellee, that this court ought not to set aside the verdict, as the appellant will probably recover nothing more than nominal damages on a re-trial of the cause.

We are of opinion that the appellant has sustained and should receive at the hands of a jury substantial damages; and for the purpose of enabling him so to do, the judgment will be reversed and the cause remanded.

Judgment reversed.