author: Pleasants, J.

text:
    William J. Brownell v. Elisha B. Steere.

      Partnership — Dissolution—Sale of Stock — Arbitration — Bill to Set Aside Award—Compensation of Co-partner—Damages—Costs—Interest.

      -1. In the absence of an express stipulation, a partner is not entitled to compensation for services rendered by him in the promotion of the business of the firm. Excess of labor on his part, however great, is no ground for such claim.
    2. One partner is not entitled to recover damages from a co-partner in the absence of fraudulent misconduct, or wilful and positive refusal to perform duties devolving upon him as partner, upon the ground that he had neglected the interests of the firm.
    3. Under an agreement to dissolve a partnership, sell the stock and submit to arbitrators all matters in controversy, the setting aside of the award does not operate to avoid the sale.
    4. Upon a bill filed to set asid? an award and for the settleimnt of partnership accounts, this court declines to interfere with the decree based upon a finding that the parties were liable as partners for services of a certain clerk, and that the firm was bound to pay the cost and expenses of defending a successful suit brought by him to recover therefor, it being clear that the same was defended in good faith.
    5. In absence of any unnecessary delay in accounting, the difference between the partners being as to an unsettled balance growing out of other claims, interest will not be allowed.
    [Opinion filed December 2, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Mr. Joiisr E. Pollock, for appellant.
    As a matter of law, McLean’s salary should have been charged to Steere, or Steere should have been charged an equal amount for his neglect of duty, or Brownell should have been allowed an equal amount for compensation for his time and attention to the business of the firm.
    In the ease of Lewis v. Moffett, 11 Ill. 399, Mr. Justice Catón, in delivering the opinion of the court, said: “But there is no inflexible rule of law that one partner shall not recover for extraordinary and unusual services, without an express agreement that he shall be paid for such services. The case of Bradford v. Kimberly, 3 Johns. Ch. R. 431, shows that where certain members of a firm are employed to render services which the law, or the agreement of the parties, does not impose upon them as partners, there the law implies an agreement that they shall be paid. After stating the general rule, the chancellor in that case proceeds: ‘ But where the several owners meet and constitute one of the concern an agent to do the whole business, a compensation is necessarily and equitably implied in such special agreement, and they are to be considered as dealing with a stranger.’ ”
    The above case has been cited and approved by the courts in a large number of cases throughout this country, wherever compensation, loss of time, or an implied agreement has been sought to be enforced by one partner as against the firm.
    In the case of Emerson v. Durand, Ex’r, etc., 64 Wis. 118, Chief Justice Cole said, in delivering the opinion of the court: “ This case differs in many important particulars from ordinary partnerships. The question is, can an agreement to pay the plaintiff what his services were really worth for the management of the business be fairly implied from the 'circumstances of the case and the acts of the parties.” And the court held in that case, citing Bradford v. Kimberly, 3 Johns. Ch. 431; Caldwell v. Leiber, 7 Paige, 483; Lewis v. Moffett, 11 Ill. 392; Levi v. Kerrick, 13 Iowa, 344; Godfrey v. White, 43 Mich. 171; Cramer v. Bachmann, 68 Mo. 310, and Sheridan v. Healey, 15 Chi. Leg. N. 104, that a partner might claim compensation for his services in connection with the partnership business if an agreement to that effect is fairly implied from the course of dealing between the parties, or from circumstances of equivalent force.
    In the case of Bradford v. Kimberly, 3 Johns. Ch. 431, it was held that “ one joint partner is not entitled, as against the others, to a compensation for his greater or more valuable services, in regard to the common concern, un’ess there be a special agreement to that effect. But where the several joint* owners of a cargo appoint one of the part owners their agent to receive and sell the cargo and distribute the proceeds, he is entitled, under such special agency, to a commission, or compensation, for his services, as a factor or agent, in the same manner as a stranger, and as such factor or agent he may retain the goods, or their proceeds, as security, not only for his advances, disbursements or responsibilities in regard to the particular property, but for the balance of liis general account.”

      In Marsh’s Appeal, 69 Pa. St. 35, Williams., J., delivering the opinion, said: “ The general rale that one partner can not charge the firm for his services is founded on the principle that each partner is bound to devote his skill and labor to the promotion of the common benefit of the concern, and is inapplicable where the reason of it fails.” Lewis v. Moffett, 11 Ill. 392.
    In the case of Cramer v. Bachtnann, 68 Mo. 310, it was held that “ whether a partner is entitled to remuneration for services rendered the firm, depends upon the intention of the parties; an express agreement is not necessary, and in order to ascertain whether such compensation should be allowed, the circumstances which surround the parties and their relative situations toward each other should be considered.”
    In the case of Caldwell v. Leiber, 7 Paige, 483, it was held that an agreement might be implied from the course of business between the co-partners.
    In the case of Levi v. Kerrick, 13 Iowa, 344, the court recognizes the exceptions to the general rule, and holds that an agreement may be implied from the course of business pursued between the co-partners, as disclosed by the evidence. See also Rowe v. Wood, 2 Jac. & W., 356; Boardman v. Close, 44 Iowa, 428.
    In Story on Partnership, 3d Ed., p. 293, Sec. 182, it is said : “In che next place, as there is an implied obligation in every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern, it hence follows that he must do it without any reward or compensation, unless, indeed, it be expressly stipulated for between the partners, as it well may be under peculiar circumstances.”
    In this case the award w:as defective and not binding on either of the parties. It is believed the construction given to the submission in this case by the Supreme Court required the award to be an entirety. Steere v. Brownell, 113 Ill. 415; Alfred v. K. & S. W. R. R. Co., 92 Ill. 609.
    The agreement in the submission that the stock should be put up and sold to the highest bidder between the partners. was only a part of the agreement and must he construed with the whole. And it is believed that a fair construction of it will not bind either of the parties to anything therein contained, except in the event that there would be a binding award rendered in pursuance thereof. Where the judgment of a court has been set aside and held for naught, it is difficult to understand why the parties should be bound by any of the preliminary proceedings in the ease. If the judgment is set "aside, the praecipe should also fall with it.
    The modern rule, as laid down in Morse on Arbitration and Award, page 456, is: “If, by the nullity of the award in any part, one of the parties can not have the benefit intended him as a recompense, or consideration for that which he is to do to the other, the award will usually be treated as void in the whole.”
    The question of interest in this State is purely a matter of statute: “Creditors shall be allowed to receive at the rate of six per centum per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing, on money loaned or advanced for the use of another; or money due on the settlement of account from the date of liquidating accounts between the parties on ascertaining the balance on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment. Starr and Curtis’ Annotated Statutes, Vol. 1, p. 1356, Sec. 2; Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, 13 Ill. 592; McCormick v. Elston, 16 Ill. 204; Aldrich v. Dunham, 16 Ill. 403; I. C. R. R. v. Cobb, 72 Ill. 152; Newton v. Shafer, 38 Ill. 379; Jassoy v. Horn, 64 Ill. 379; Daniels v. Osborn, 75 Ill. 615; Davis v. Kenago, 51 Ill. 170; Chapman v. Burt, 77 Ill. 337; Bedell v. Janney, 4 Gilm. 193; Devine v. Edwards, 101 Ill. 138.
    Messrs. Herrick, Lucas & Spencer, for appellee.
    In the absence of a special agreement to that effect, a partner can not have compensation for his services in and about the firm business. Roach v. Perry, 16 Ill. 37; Hanks v. Baber, 53 Ill. 292; Askew v. Springer, 111 Ill. 663; Burgess v. Badger, 14 N. E. R. (S. C. Ill.), 851; Kimball v. Lincoln, 5 Ill. App. 322; Strattan v. Tabb, 8 Ill. App. 227; Forrer v. Forrer, 29 Gratt., 134; Thornton v. Thornton, 1 Austr. 94; Randall v. Richardson, 53 Miss. 176; Brown’s Appeal, 89 Pa. St. 147; Lindley on Partnership, Vol. 2, 774; Bates on Partnership, Sec. 770.
    Wilson, J., in Kimball v. Lincoln, supra, says: “In the absence of an agreement for compensation, a partner is not permitted to charge for his personal services in managing the partnership business during the continuance of the partnership.”
    And in Strattan v. Tabb, supra, Wall, J., says: “The evidence shows that each member of the firm was equally interested in the stock, and that the claimant had general charge of the business, giving his whole time and attention, while the other partners gave their attention mainly to other pursuits. This would not give claimant a right to special compensation unless there was an agreement to that effect.”
    In Burgess v. Badger, supra, Scholfield, J., says: “We believe the rule to be well settled, that in the absence of a stipulation to that effect, one partner is not entitled to charge his coj>artners for his services, or because he has done more than his just proportion of the work. The law never undertakes to measure and settle between the partners their various and unequal services bestow'ed on the joint business.”
    In Forrer v. Forrer, supra, Staples, J., says: “Bo rule of law is better settled than that one partner is not entitled to compensation for his services while employed in the partnership business, unless it be so agreed between the partners. The doctrine is thus laid down by a writer of acknowdedged merit: ‘As it is the duty of each partner to devote himself to the interest of the concern, to exercise due diligence and skill for the promotion of the common benefit, it follows, that he must do it without any reward or compensation, unless there is an express stipulation to that effect; and there is no difference in this respect, although the duties performed by the partners have been very unequal in value and amount.’” Col-yer on Partnership, Sec. 183; Strong on Partnership, Sec. 182; Parsons on Partnership, p. 130; Franklin v. Robinson, 1 Johns. Ch. 157.
    “It has been not infrequently said that there is no rule as to the charging or allowing interest in settling partnerships, but that each case must stand on its own circumstance. It is true that there is no unbending rule similar to the disallowance of extra compensation for additional services on the part of a partner, nevertheless certain general guiding principles can be laid down.” Bates on Partnership, Sec.' 786.
    Interest should always be charged against a partner who unnecessarily delays accounting, or who uses the partnership funds about his own business. Derby v. Gage, 38 Ill. 27; Ligare v. Peacock, 109 Ill. 94; Stroughton v. Lynch, 1 John. Chy. 467; Johnson v. Hartshorne, 52 N. Y. 177; Broling v. Dobyns, 5 Dana, 434; Honore v. Comesnil, 7 Dana, 199; Taylor v. Young, 2 Bush. 428; Dunlap v. Watson, 124 Mass. 305; Crabtree v. Randall, 133 Mass. 552; Wells v. Babcock, 56 Mich. 276; Dimond v. Henderson, 47 Wis. 172; Bates on Partnership, Sec. 788; Lindley on Partnership, 977.
    Such an agreement is implied from a usage crediting interest on the books before and after the time in question. Miller v. Craig, 6 Beav. 433; Lloyd v. Canie, 2 Lans. 364; Pratt v. Holton, 11 La. Ann. 260.
   Pleasants, J.

In January, 1877, appellant bought at sheriff’s sale the stock of boots and shoes previously belonging to O. Bugg, for whom John P, McLean, a son-in-law of appellee, had been salesman and clerk for sixteen years. Largely if not solely with the view of obtaining continued employment for McLean, appellee arranged with appellant to furnish half the price and become an equal partner with him. They had long been intimate friends; each had been a successful merchant and had handled boots and shoes as part of a general stock, but neither had any experiencé in that trade exclusively. There was no written agreement of partnership, nor any express understanding as to the conduct of the business or the duties of the respective partners. Whether there was any as to the compensation of McLean was a matter of dispute between them. The business was carried on under the firm name of W". J. Brownell & Company, until January, 1882, the first two years in the same store that had been occupied by Rugg. Appellee personally paid little or no attention to it. Appellant had the responsible management and gave to it the most of his time; but McLean, as was to be expected from his knowledge of the trade and of the stock and customers of the store, performed a prominent, if not the leading part, selecting for purchase, selling, keeping the books, making collections and having charge of the correspondence. During the five years of the firm’s existence, he drew from time to time and charged to himself upon its books, with the knowledge of appellant, the aggregate amount of §1,723.54, but had no settlement of his account. In January, 1882, appellant, claiming that appellee had agreed to pay it, directed McLean to charge it to him, and on McLean’s refusal so to do, made the charge himself. Appellee, on being informed of this, denied the alleged agreement and disallo wed the charge. A rupture immediately followed, and the parties thereupon executed an article in writing, whereby it was agreed that the firm was thereby dissolved except for the adjustment of its business, which shoxxld be dqne in the following manner: The store should be immediately closed, the goods on hand invoiced and delivered to Peter Whitmer, Lyman Ferre and Duncan Funk, who should immediately sell them to whichever of the parties should bid the largest percentage on said invoice price; and upon payment to them of one-half the amount of such bid deliver them to the pxxrchaser, to whom also the lease of the store shoxxld be assigned; and retaining such money in their hands, they shoxxld at once proceed as arbitrators to adjust and state the account between said parties touching the matters in difference between them as partners. They were also to determine whether the salai’y of McLean shoxxld be paid by appellee or by the firm, and other matters outside of the partnership, some of which xvere specifically mentioned, and make report of their finding in wilting. It further provided that upon such finding as to partnership-matters a decree and supplemental decree might be entered, and for the balance found due on the individual account a judgment rendered by the Circuit Court of McLean county; and that the money so in their hands at the time of making their report, or so much thereof as should be necessary, should be applied in payment of such indebtedness on the account stated.

Pursuant to said agreement, the goods were invoiced and offered for sale. Appellee bid 103 per cent., but appellant offered 104, amounting to $12,361.66, and they were sold to him at that price, being delivered about the 7th of February, 1882. The arbitrators then proceeded to hear the parties upon the matters submitted, and on the 6th of April following delivered their award, finding that the amount drawn out by McLean should be charged to appellee, as should be any additional claim if made by him on account of his services, and on the whole account, partnership and individual] including the purchase of the stock by appellant at the price above stated, a balance due from him to appellee of $3,785.59. Immediately upon the purchase, $2,500 in cash had been deposited by appellant with the arbitrators, and on delivery of their award he gave them his check on the bank of which arbitrator Whitiner was president, for the further sum of $1,285.59, and arranged for its payment cm presentation, thus making up the full amount of the balance so awarded, tó be delivered or tendered by them to appellee. The latter, however, was dissatisfied with the finding, refused to accept said amount as the balance due him, and filed the bill herein to set aside the awa d and praying for an account. On final hearing in the Circuit Gourt the award was sustained and a decree made dismissing the bill, which decree was affirmed by the Appellate Court, but on further appeal was reversed by the Supreme Gourt upon the sole ground that some of the matters in difference submitted were not settled by the award, other objections urged thereto being overruled, as technical and unsound. Steere v. Brownell, 113 Ill. 415. This decision was made March 30, 1885. On remandment, an interlocutory decree was entered, setting aside the award and referring the cause to a special master to take the proofs and report the same, with his findings thereon, and to state the account. Thereupon appellant sought to withdraw the §2,500 he had deposited with the arbitrators, which appellee opposed, but he succeeded in obtaining it about the 1st of January, 1886, on giving to the bank an indemnifying bond. About that time also McLean brought suit against these parties, as late partners, for a balance claimed to be still due him for his services to the firm. Appellant earnestly contested this claim, but appellee, though he filed separately the plea of the general issue, admitted through his counsel that something was due on a quantum meruit, leaving it to the jury to find the amount, without offering evidence on behalf of the defendants or in any way controverting that of the plaintiff; and the action resulted in a judgment against the defendants for §1,284.97 damages (including interest from its date) and $192.75 costs, which appellant paid April 8, 1887.

The master made his report December 3,1887, among other tilings charging appellant, in favor of the firm, with the amount of his bid for the stock, and with interest amounting to §3,607.85, allowing appellee to withdraw from the assets or their proceeds the balance remaining to his credit of what he had put into the business, and dividing only the residue equally between the parties, and charging the firm with what had been drawn out by McLean, the amount of his judgment and the costs and expenses incurred in defending the suit. His statement of the account showed a balance due from appellant to appellee of §8,695.45.

¡Numerous exceptions to this report were filed by each party, all of which the court overruled, excepting that of appellant to the charge for interest, and made a final decree for appellee for §6,891.53, being a reduction of the amount found by the master by one-half of the interest he had allowed.

Appellant here contends (1) that McLean’s salary, with the costs and expenses of the defense to his suit, should have been charged to appellee and not to the firm; (2) that appellant should have been charged for the stock its fair market value, and not the amount of his bid; and (3) that all the assets or their proceeds found to be in his hands, including whatever of original capital, still remained, should have been divided equally.

Having affirmed, in respect to the salary of McLean, that appellee expressly agreed to pay it, and that McLean was so informed at the time of his employment, which was denied, the burden of proof was upon him. The positive testimony relating to it was conflicting, and each side was supported by circumstances. Both the master and the chancellor1 found against him. We see no sufficient reason for overruling them. In such cases generally we must decline a discussion of the evidence as useless, but may here again remark that in a suit for a portion of this salary, in which appellant was both a defendant and a witness, the firm suffered judgment, which he paid.

If it was liable for this salary it was consequently liable for the costs and expenses of the defense to the suit brought for its recovery.

He next argues that if there had been no such agreement, still, under the circumstances of this case, equity should allow him a sum equal to the amount of McLean’s salary, as compensation for his own services in excess of those rendered by appellee.

The rule, as stated in Story on Partnership, Sec. 182, and approved by all the cases and writers on this subject, is that “ as there is an implied obligation on every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern, hence it follows that he must do it without any reward or compensation, unless, indeed, it be expressly stipulated for between the partners, as it well may be under peculiar circumstances. The reason is, that each partner, in taking care of the joint property, is in fact taking care of his own interest, and is performing his own duties and obligations, implied in, and constituting a part of, the consideration for the others to engage in the partnership; and the law never undertakes to measure and settle between the partners the relative value of their various and unequal services bestowed on the joint business, for the obvious reason that it is impossible to see how far, in the original estimate of the parties when the connection was formed, the relative experience, skill, ability, or even the known character and reputation of each, entered as ingredients into the adjustment of the terms thereof.” For a concise statement of it, see King v. Hamilton, 16 Ill. 196.

It is said that exceptions to this rule are allowed where an agreement for compensation may be fairly and justly implied; and further, in general terms,that it may be so implied “from the nature of the services rendered, in connection with the duties and obligations imposed by the copartnership articles.” Lewis v. Moffett, 11 Ill. 398; or “ from the course of business or dealing between the copartners,” Levi v. Karrick, 13 Iowa, 350; oi‘ “from circumstances of equivalent force,” Emerson v. Durand, 64 Wis. 118. But these cases themselves, and those therein cited, seem to limit the scope of such general terms, and confíne the exceptions, so called, to services of a special character, which the partner, as such, was not bound to render, either by the terms of the copartnership agreement or by implication of Jaw arising from their character and their relation to the partnership business. In respect to such services he is regarded as not a partner but a stranger; and in strictness these are not exceptions to the rule as stated, which clearly contemplates only those properly pertaining to the relation of a partner, or prescribed by the agreement, in the rendition of which he is only “performing his own duties ” as a partner;

In the case before ns, the partnership and its business were of a very ordinary kind. It is not pretended that appellant rendered any service not properly and usually devolved upon the partners in such a business, and clearly embraced in their implied obligation. The unusual feature about them was not in their nature or character, but simply and solely their excess "in amount over those rendered by his copartner. And it is well settled that mere excess, however great, is no ground of right to compensation. Burgess v. Badger, 124 Ill. 288, Roach v. Perry, 16 Ill. 37; Lewis v. Moffett, 11 Ill. 398; Strattan v. Tabb, 8 Ill. App. 227; Bradford v. Kimberly, 3 Johns. Ch. 431; Godfrey v. White, 43 Mich. 181.

It is suggested that if appellant is not entitled to compensation, as such, he should be allowed it, in effect, as damages against appellee for his neglect. But he is not charged with fraudulent misconduct or with wilful and positive refusal to perform any duty devolving upon him as a partner; and it is only in such cases that damages are allowed. Marsh’s Appeal, 63 Pa. St. 35; Caldwell v. Leiber, 7 Paige, 483. It does not appear that at any time before the dissolution appellant complained of his neglect or claimed that hejwas disappointed by it; nor was any evidence offered to show or tending to show how or how much he was damaged thereby. Indeed, from the course of dealing between the parties and other circumstances in proof, we think it may be fairly inferred that appellee was never expected to give his personal attention to the business —in other words, that by a fair understanding between them he was released from the implied obligation so to do.

The claim that appellant should have been charged for the stock he purchased no more than its fair market value, rests upon the proposition contended for, that the effect of the decree setting aside the award was to vacate the bid also.

The award alone was set aside, and we think it clear that the sale was no part of it. n >r in any way dependent upon it. For the agreement expressly provided that it should be consummated, in the manner and upon the terms therein prescribed, before the arbitrators were to proceed to a hearing upon the matters submitted. It contemplated that the stock would be delivered to the purchaser and might be absolutely disposed of by him before the award could be made. Certainly a binding award was expected to follow. The sale was made to facilitate it, but not in consideration of it. Appellant got, in the stock, all he bid for. The price was to be treated in the settlement and award just as the stock would have been if there had been no sale. It is so treated by this decree, and we think rightly.

It appeared from appellant’s individual account that at the time of its dissolution he was indebted to the firm. The balatice against him was §535.84. He had thus withdrawn all of his original capital. There remained to the credit of appellee, after transferring the amount of McLean’s compensation from his account, where appellant had placed it, to that of the firm, the sum of §1,614.37 of money actually invested in the business. It was therefore proper to allow him to withdraw it before division.

On cross-errors assigned, appellee complains of the charge against the firm for the costs and expenses of the McLean suit, insisting that appellant, having all the assets of the firm in his hands, ought to have paid the claim without suit. We agree with the master, that the defense was justified by the circumstances and was made in good faith, in the interest of the firm. It should bear the expense.

Again, he complains of the disallowance by the court of the charge against appellant for interest. The master charged him at the rate of six per cent, per annum on the whole amount of the assets fixed by the bid, less the §2,500 deposited in part payment, from the 7th of February, 1882, when the goods were delivered to him, to January 1, 1886, when said deposit was returned to him; on the whole amount, from that date to April 8, 1887, when he paid the McLean judgment; and from that time, on said amount, less the amount of said judgment, to December 3, 1887, when the master’s report was filed—in all, the sum of §3,607.85; which the court, on exception thereto sustained, struck out.

It is conceded that there is no fixed and unbending rule as to the charging of interest in such cases, but that each must stand on its own circumstances. It is insisted, however, that it should always be charged against a partner who unnecessarily delays accounting, or who uses the partnership funds about his own business.

We do not regard this as such a case, but rather as one of mutual account for money demands, with the balance in dispute and unsettled until the decree herein was made.

Upon the purchase of the stock by appellant, what had been the interest of appellee therein was thereby converted into a money demand. What was due him on this purchase was never disputed; but there were other claims, by each party against the other—on both individual and partnership account —and the balance on the whole was unsettled. But there ■was no unnecessary delay in accounting. All these matters were at once, upon the dissolution, referred for adjustment and settlement to a board of their own choosing, and immediately upon their reporting the balance found against him, appellant tendered the full amount. And this tender he kept good; for althorlgli he withdrew the money deposited when the award was set aside, his indemnifying bond should be considered an equivalent substitute. He had good reason for the belief that the balance found by the award was all that was really due, and would ultimately be so established. The Circuit Court and this court had sustained that finding. It was set aside by the Supreme Court upon grounds which did not certainly indicate that it would l»e materially changed. In respect to the item which makes the difference, within $20, between it and the amount found by this decree—the compensation of McLean—we can not doubt that the position of appellant was taken in good faith, as it was supported by not a little evidence. If the decree had been in his favor on that point, it would be difficult to state a sufficient reason for overruling it. The case was a close one. 'Perhaps the decisive circumstance in relation to it was that the burden of proof was upon the appellant. The question continued to be in court and in process of settlement Appellant interposed no hinderance. It was not settled until this decree was made.

Under these circumstances, we think the court was right in disallowing the charge for interest. Perceiving no material error in the record, the decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William Fesser v. Philip Achenbach et al.

      Hoads—Vacation of—Dedication—Jurisdiction—Injunctions.
    1. The owner of land can not complain of an order merely vacating a road established thereon by dedication, on the ground that the commissioners of highways making the order did not first obtain from him a release of his supposed damages or have them assessed by a jury.
    2. The ascertainment and allowance of damages, if not agreed upon and released, is jurisdictional only where the order involves the actual taking of land.
    [Opinion filed January 21, 1888.]
    Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding:
    Messrs. H. M. "Vandeveeb and John Gr. Desunan, for ■ appellant.
    Mr. James M. Tayloe, for appellees.
   Pleasants, J.

The bill herein, filed by appellant, sets forth that complainant for twenty years has owned and resided on the If. and If. W. J of the S. E. J- of Sec. 21, T. 13, E. 3; W. of the 3d P. M.; that Philip Achenbach owns the S. W. J of the S. E. J of said section, and Jacob Lienhart the E. -J of the S. E. J thereof; that complainant’s dwelling house and appurtenant improvements are on the If. W. J of said S. E. J, near the northwest corner thereof; that for more than fifteen years a public road, established by dedication, forty feet in width, has been located from the south line of said section north on the line between the east and west halves of the southwest quarter, thence east on the line between the north and south halves of said section to the line between sections 21 and 22, and thence north on said last mentioned line to the north line of said sections; that said road connects at its southern terminus with an east and west public road leading to the county seat; that the commissioners of highways of said town, by a pretended order of September 10, 1886, attempted to vacate so much of said road as lies between the south line of said section 21 and the line between the two sections mentioned, running by complainant’s dwelling house; that in pursuance of such pretended order said Achenbach and Lienhart were proceeding to close up that part of said road—the south quarter of a mile (between their respective lands) completely, and one-half of the remainder (lying between the land of complainant and that of said Lienhart), thereby cutting off complainant’s outlet on the south and destroying the utility of the part not embraced in said order; that complainant was never made a party to this proceeding, nor were the damages to him by such attempted vacation ever released or assessed; that he would be damaged by such vacation more than $500, and suffer irreparable injury; and that there was not time enough to obtain a oertiorari before the road would be closed. Achenbach, Lienhart' and the commissioners of highways are made parties defendant, and the prayer is for an injunction. A general demurrer was interposed by the defendants, which the Circuit Court sustained, and thereupon entered a final decree dismissing the bill.

It appears from the bill that for five years, more or less, complainant resided on these same premises without the advantages, whatever they may be, of the road in question; and that notwithstanding the order of vacation complained of, if it shall be executed, he will still have twenty feet in width of the old road from his residence east to that part which is not embraced in the order, and as much more on his own land as he may see fit to use for a road. To what extent that part of the old road would afford him communication with the county seat and other points he may desire to reach, does not appear; but the bill is to be taken most strongly against him, and for aught it avers he may thereby have as convenient access to them as by the south outlet of the old road.

But if he has not, the question is whether he can complain of an order merely “vacating” a road established on his land, by dedication only, on the ground that the commissioners of highways making the order did not first obtain from him a release of his supposed damages or have them assessed by a jury; in other words, whether such release or assessment is, in such case, jurisdictional.

This involves a construction of several sections of the “Act in regard to roads and bridges in counties under township organization,” approved June 23, 1883. (Laws of 1883, p. 136, and Starr & C. Ill. Stat., p. 2146, et seq.

Appellant concedes that from Sec. 35 it would seem that a public highway might be lawfully “vacated” without compensation to the owner of the land over which it passed, but insists that, considered in connection with sections 39, 40, 41, 48 and 47, it does not really so indicate.

And it is true that in these sections the establishment, alteration, widening and vacation of roads are put in the same category, and the proceedings therein prescribed, which include the ascertainment of damages to land owners, are made alike applicable to each; but we think it appears, as well from these as from other provisions, that wherever damages are to be ascertained as a prerequisite to the validity of the order, in cases of “vacation,” the Legislature intended only such vacation as is involved in or connected with the exercise of the power to “take” land for road purposes—as in “re-locating” or “altering” a road by vacating a portion of it and taking new land in its place, or in vacating the whole and substituting a new road (which may be included in the same petition, Anderson v. Wood, 80 Ill. 15), and that the damages to be so ascertained in such cases are those only" which are caused by the “taking” of the new land.

Thus by Sec. 39 it is provided that the commissioners “ shall also, before they order any road to be established, altered, widened, or vacated, ascertain, as hereinafter provided, the aggregate amount of damages which the owner or owners of land over which the road is to pass shall be entitled to, by reason of the location, alteration, or vacation, of such road.” The statute then proceeds to provide—evidently in reference to such damages and such land owners only—by Sec. 40, that the damages may be agreed upon by the commissioners and such land owners, or released by such owners; by See. 41, for their ascertainment by a jury, if not so agreed upon or released, on summons to the land owners; by Sec. 42, for service of such summons on resident land owners who are infants or have a conservator; by Sec. 43, on nonresident and unknown owners, by service on the occupant, and posting notices stating the time and place fixed for hearing, as in ihe summons, “and describing the road to be established or altered and■ the lands for which damages are to be assessed/” by Sec. 46, that the jury may visit and examine the proposed location, alteration, widening or vacation, and the lands to be taken and affected thereby, and make a written verdict specifying the amount of damages, if any, which every such owner shall recover, provided that, except for property actually taken, they may consider the benefits conferred, which proviso is not inconsistent with the constitutional provision against taking or damaging private property for public use without just compensation. C. & P. R. R. Co. v. Francis, 70 Ill. 238, and Eberhart v. C., M. & St. P. R. R. Co., 70 Ill. 347.

By reference to preceding sections it appears that if the petition, whether for location, alteration, widening or vacation, is refused, or if it is simply for vacation, and the prayer is granted, the commissioners are to file a copy of their order, together with the petition, with the town clerk, and that concludes the proceeding. Secs: 34 and 35. But if it is for an order that involves the actual taking of land, and is granted, then the commissioners are to cause a survey to be made and the damages to be assessed.

From these provisions it appears that the ascertainment and allowance of damages, if not agreed upon and released, is jurisdictional only where the order involves the actual taking of land.

And so we understand the Supreme Court to have expressly held in Brown v. Robertson, 123 Ill. 631, and we have referred to the other sections of the statute only becaus-- that court referred to Sec. 39 alone.

The same conclusion is reached on principle. Complainant had no legal interest in the highway as such, except as one of the public, and that was not a vested right to its continued maintenance against the will of the public. Those authorized to act for them having surrendered their right, whatever inconvenience or loss of value he may suffer by reason of it is damnum absque injuria. Their proceeding was not a taking or damaging of private property for public use, but the reverse.

Decree affirmed.


author: Per Curiam.

text:
    John S. Condell, Jr., v. Krohn, Feiss & Co.

      Sales—Fraud—Replevin—Evidence—Practice—Acquiescence.

    1. In an action of replevin to recover goods alleged to have been obtained with the intention not to pay for them, by one who transferred them to the defendant, this court declines to interfere with the verdict for the plaintiffs, the question of fraudulent intention being for the jury.
    2. Upon a question of fraudulent intention in the purchase of goods a wide range of inquiry is permissible.
    [Opinion filed January 21, 1888.]
    In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Patton & Hamilton and Jones & Salzenstein, for plaintiff in error.
    ■Where there are no false representations, and the intention with which the vendee ordered the goods is alone relied on to avoid the sale and delivery, it must be shown that at the very time of the contract of sale the vendee had formed a positive and predetermined intention never to pay for the goods. It is not sufficient to show the kind of fraud relied on here, that the purchaser buys the goods without intending to pay for them. Such a negative or indifferent state of mind as respects payment will not render the sale fraudulent. Catlin v. Warren, 16 Ill. App. 418.
    To constitute such fraud there must be a preconceived design never to pay for the goods. A mere intent not to pay for the goods when the debt becomes due is not enough. A design not to pay according to the contract is not equivalent to an intention never to pay for them, and does not amount to an intention to defraud the seller, although it may be evidence of such contemplated fraud. Nor is it enough to constitute the fraud that the buyer is insolvent, and knows himself to be so at the time of the purchase, and conceals the fact from the seller, and has no reasonable expectation that he can ever pay the debt. The only intent that renders the sale fraudulent is a positive and predetermined intention, entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods. Burrill v. Stevens, 73 Maine, 395; Cross v. Peters, 1 Greenl. 378; Baggs v. Barry, Curtis C. C. 259; Rowley v. Bigleton, 12 Pick. 306; Noble v. Adams, 7 Taunt. 59; Bristol v. Widsmore, 1 B. & C. 514; Kirby v. Wilson, R. & H. 178; Stewart v. Emerson, 52 N. H. 301; Bilandt v. Wales, 19 Mo. 36; Thompson v. Rose, 16 Conn. 71; Morrill v. Corbin, 13 Ill. App. 81.
    The case of Schroeder v. Walsh, 120 Ill. 403, establishes three propositions of law directly applicable to a correct decision of this case.
    1. Where a sale of goods is sought to be avoided for fraud, the fraud must be shown by at least a preponderance of the evidence, or the sale will not be defeated. Generally the proof of the fraud should be clear and satisfactory.
    2. A man has a perfect right to deal with his relations, to buy and sell to and from them, and the presumption of the law is that dealings between relatives are fair and honest, without any wrongful or fraudulent intent, and no presumption of fraud attaches to such dealings.
    3. That in the absence of a bankrupt law or a statute to the contrary, a debtor in failing circumstances, who does not seek the benefit of the general assignment law, may prefer one creditor to another equally meritorious, if done in good faith.
    Messrs. Orendorff & Patton and John M. Palmer, for defendant in error.
   Per Curiam.

Eeplevin against the sheriff for 5,000 cigars part of a stock taken on five writs of execution against L. S. Ensel, who was then in possession and apparently the owner. Those in controversy he obtained from the plaintiffs by a formal purchase, but as they allege, with the intention not to pay for them. On that ground alone they based their right of action and recovered.

It was a very proper case for a jury, involving the single question of his intention in respect of payment at the time he ordered them. He positively denied the fraud charged, and to establish it against such denial plaintiffs necessarily relied on proof of circumstances. These embraced very many of such as would be expected on that theory, but hardly on any other, as, known insolvency at the time of the pretended purchase, his indebtedness being largely due to near relatives on old transactions of doubtful odor; unreasonably large purchases in the aggregate, but of moderate amounts of many dealers, recently made; the execution of judgment notes sufficient to cover his stock, of which five-sixths in amount were to these relatives, after the goods were shipped on his order from Cincinnati and before they arrived; judgments soon after confessed on these notes; the conveyance to his brother, at the same time, of his valuable residence property, in expressed consideration of indebtedness due him, and the transfer of all his other real estate (in Missouri) and all his old'notes and accounts to apply on debt to the bank, leaving nothing visible out of which plaintiffs and other creditors could realize their claims; the purchase of' his stock from the execution creditors who had bought under judgments confessed on the notes referred to, at a large discount, by his son-in-law, whose means would hardly warrant it; and the resumption of business on the old stock with Ensei in charge as his manager. These are the principal facts which, with many suspicious incidents, plaintiffs claim to have shown and urge as indicating his intention not to pay. They were all supported by proof—-many being established undeniably by records and documents in evidence. They were clearly competent as tending to prove the intention charged, and were of the only bind of proof of which such an intention is susceptible.

We do not say that any of them, if proved, were sufficient to establish it, nor express any opinion as to the weight of all combined; but they were proper for the jury to consider, and to determine their weight. Nor do we overlook the facts that Ensei claimed he was not insolvent at the time he ordered these goods, and that the amount of his recent purchases was not unreasonably large, in view of trade prospects, and that evidence was introduced to explain other suspicious circumstances. But this conflict of evidence as to facts, and these differences as to the significance of those not contested, brought the case all the more clearly within the exclusive province of the jury. Eor a just finding upon these points the jury certainly had the best advantages. They saw and heard Ensei testify. He was the most prominent if not the most important witness in the case. His manner on the stand clearly challenged and must have received their closest attention and most careful consideration. It would be presumptuous for us to substitute our best estimate of the bearing and weight of his testimony. And so of the other witnesses.

The objections urged to the rulings of the court were not many, nor in our opinion very serious. Ensel’s agreement with the bank was competent, as tending to show that his real estimate of the value of the property he transferred to it was too far below what- he stated on the trial, where his solvency at the time was in question, to be accounted" for on any supposition- consistent with that of his honesty or truthfulness.

Hpon a question of fraudulent intention, such as was here charged, a wide range of inquiry must be allowed. The purchase of the stock from the judgment creditors by Stern, and its subsequent management by Ensel, may be regarded, in view of his relations to the other parties and to the property, as part of the res gestae. Besides, the failure to renew the motion to exclude the evidence on that subject, may well be treated as an acquiescence in its admission.

We do not think the instructions fairly subject to the criticisms of counsel, and oh the whole see no sufficient reason for reversing the judgment. It will be affirmed.

Judgment affirmed^


text:
    John W. Sherrick v. The Town of Houston.

      Highways—Poll Tax—’Regularity of Proceedings—Sec. GO, Act of 1887—“ Able-Bodied”—Definition—-Gun Shot Wound—■Eoidence—Conflict ■—Expert Testimony.

    A man who is ordinarily physically able to perform the labor usually performed by able-bodied men on the public roads, is not exempt from liability for the poll tax provided for in Sec, 60 of the act of 1887.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Bonnet & Woods, for appellant.
    Messrs. Carter & G-overt, for appellee.
   Per Curiam.

In the spring of 1884 the commissioners of highways of the town of Houston levied a poll tax of $1.50 against appellant for road purposes, and on his refusal to jiay it brought this suit before a justice of the peace, which was appealed to the Circuit Court, where a trial by jury resulted in a verdict and judgment against him for that amount.

The only alleged ground of defense upon the merits was that he was not an “ able-bodied” man. It was said that he had been "wounded at the battle of Cliickamauga, and it appeared that a bullet passed between the tibia and fibula of his left leg, about half way from the ankle to the knee, injuring both of those bones, and so healing as to affect the limb specially and his nervous system in general. The question was as to the extent and effect of these injuries. Seven doctors testified as experts, from an examination of the limb, that in their ju lgment he was not an able-bodied man, and several of them that he could not do a day’s work on the road without injury to his health.

On the other hand, there was the testimony of two witnesses to his distinct admission made with reference to the question of his liability to perform road labor under the statute, that he was an able-bodied man. He said that when he was a commissioner the board made a rule that such labor should not be required of any pensioner, and therefore only, he refused to pay the tax. A considerable number of others, who knew him and had observed him at different times at different kinds of work on his own farm and for his neighbors, from such personal acquaintance and actual observation believed him to be an able-bodied man.

It is true they did not observe him for any great length of time continuously, nor at very hard work.

He owned a large body of laud, most of which he rented out, and employed all the help he wanted on what he cultivated. He was under no necessity of much, or hard personal labor. It seems to have been a question of technical ability in the view of experts and actual ability in the view of farmers and laborers who knew and observed him. The court’s idea, as conveyed by the instructions given to the jury, was that an “able-bodied” man, in the sense of this statute (Sec. 60 of the road and bridge law of 1887), was one who is “ ordinarily physically able to perform the labor usually performed by able-bodied men on the public roads.” The evidence showed that there was some lameness in appellant’s left foot, and that at times he complained rof rheumatism (which some of the doctors, however, said was not rheumatism, but the effect of his wound upon his nervous system); but if is probable that some of the jurors who performed such labor were subjects of some slight special lameness or weakness, and also of rheumatism at times. But few laborers are entirely free from such troubles.

We think the court’s definition was not what is represented by counsel—an ability to do one day’s work in a year—nor so understood by the jury; “ ordinarily ” able to do such work, though with exceptions of rheumatic and other such days, as in the cases of most men, was a sufficiently liberal and substantially a correct definition. In the light of that definition and of all the evidence the jury found him liable to road duty? and we do not feel authorized to overrule them. The somewhat famous and forcible remarks of Judge Breese on the comparative weight of the opinions of experts and the judgment of actual observers who are not experts, seem to apply here.

A defense was also attempted on the ground that in levying this tax the commissioners had not followed with due strictness the provisions of the statute. The objections urged to these proceedings and to the evidence offered to prove them were so many as to make a discussion of them all separately and in detail impracticable. Nor can we make a selection that would satisfy the party or counsel as to those not included. We therefore go no further in this direction than to say that, considering the object of the proceedings and the character of the officers, these objections were technical, unsubstantial, and properly overruled.

Nor do we think it possible that appellant could have been prejudiced by the exclusion of evidence complained of, if the rulings were erroneous. The pension certificate was not a judgment, in rem or otherwise, conclusive upon the plaintiff. It had no tendency to prove any material fact that was disputed. The proof of a gun-shot wound in the leg was abundant aliunde, and the fact not disputed. That he was a pensionerwas immaterial. He might have received a pension for the loss of an eye, if he had lost one, but that would not ex-, empt him frdm liability for road labor or the commutation poll tax. Prather was corroborated by a witness who was uncontradicted. Plaintiff declined to testify.

We perceive no good reason for reversing the judgment, which will, therefore, be affirmed.

Judgment affirmed.


author: Wall, P. J.

text:
    William H. Broadwell v. David Sanderson.

      Principal and Surety—Note—Delivery—Subsequent Signature—New Consideration—Evidence—Weight of-—Number of Witnesses—Instructions.

    1. Where a note is signed by a third person after its delivery to the payee, and not as a part of the. original transaction, a new consideration is necessary to render such third person liable thereon.
    2. The weight of evidence is not to be determined merely by the number of witnesses who testify to the point in question.
    3. The statute providing for want or failure of consideration as a defense has modified the rule that a written instrument can not be varied by parol. In such cases the statute permits the whole truth as to the consideration to be shown.
    4. In the case presented there was no substantial error in giving or refusing instructions.
    5. It is proper to refuse an instruction the substance of which is contained in others given for the same party.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cvrtjs Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, for appellant.
    Messrs. Brown & Kirby, for appellee.
   Wall, P. J.

This was an action of assumpsit upon a promissory note payable to appellee and signed by W. B. Broadwell and the appellant, W. II. Broadwell. The latter alone was sued. He pleaded, first, the general issue and several special pleas, setting up a want of consideration for his signature to the note. The ease was tried by jury and there was a verdict for plaintiff for the amount of 82,102.66#. On motion for a new trial the plaintiff remitted §1,000. The motion was overruled and judgment entered accordingly. The record is brought to this court and various errors are assigned, which will be noticed in the order as they appear in the brief.

The defense rests upon the alleged want of consideration, it not being denied that the appellant signed the note.

The principal maker was W. B. Broadwell, the son of appellant. He signed the note in California, where he resided, and where appellee then was, and handed it to appellee, and the contention of fact was whether it was then understood that it should be presented to appellant and signed by him as security.

The consideration was the payment of the amount named by appellee to appellant for said W. B. Broadwell, who was then owing appellant; in other words, a loan to W. B. to be applied on his debt to W. H. Broadwell, the appellant.

Appellant insisted that there was no such understanding as to his signing the note, but that he signed it after the money was paid, at the mere request of appellee and without any consideration. If the paper was signed by the principal and delivered to the payee as complete and executed, and was afterward signed by appellant, not as a part of the original transaction nor pursuant to the understanding upon which it was signed by the principal, and handed to appellee, there was no consideration for the signature of appellant and his defense was good. Harwood v. Kiersted, 20 Ill. 374; Randolph on Commercial Paper, Vol. 2, Sec. 920.

This was the issue of fact submitted to the jury, and it is insisted by the appellant that the verdict is clearly against the weight of the evidence. If this is to be determined by the number of witnesses the position is well taken; but of course that is only one element for consideration, and it is by no means conclusive. Much more depends upon the manner and appearance of the witnesses and their general conduct while testifying, as well as the nature of the facts testified to. After carefully considering the evidence as it is abstracted we are not disposed to interfere with the judgment on this ground. In this connection may be noticed the objection that it was error to permit the appellee to testify to the circuinstances and the understanding with which the principal signed the note and gave it to appellee. The appellant opened the door for this by the testimony of the principal, W. B. Broadwell, lending to prove that there was no understanding^ that appellant was to sign as surety, and he can not be heard to object. But there is no ground for objection. Our statute, Sec. 9, Chap. 98, B. S., in providing for the defense of a want, or failure of consideration, has necessarily modified the rule of evidence against varying a written contract by parol, and, as has been said by the Supreme Court, the door is thrown wide open to disclose the whole truth about the consideration, and this is the only mode by which effect can be given to the statute. G. W. Ins. Co. v. Ries, 29 Ill. 272; Gage v. Lews, 68 Ill. 604; Mann v. Smyser, 76 Ill. 365.

It is urged that it was error to give the following instruction, Bo. 3:

“If a party sign a note as surety for another, in consideration that the principal shall receive the benefit thereof, such ■ consideration is a valid consideration in law, and the signer thereby becomes liable to the lender as the principal, and in this case it is immaterial how much, if any, benefit the defendant received for signing said note, provided he signed it in consideration.that his son, W. B. Broadwell, should receive credit for the amount of the same, and that his son by reason thereof did receive such credit.”

In support of the objection, it is said the jury were misled by the instruction and probably understood that it was immaterial whether defendant received any consideration for signing the note provided his son got the benefit of the credit, ignoring the real issue, whether the note was in fact executed completely in California. We think it would not mislead the ordinary j nror. The proposition contained in the instruction is sound, and when read in connection with the other instructions for plaintiff and with those for defendant, which very strongly stated in several forms of expression the issue from the standpoint of the defendant, there is no reason to suppose that it had any improper effect on the jury.

The following instruction is objected to as calculated to mislead the jury.

7. “ The court instructs the jury for the plaintiff, that where a note is signed by two persons, both are equally liable, and either one or both may be sued thereon, and it makes no difference whether the note read, ‘I promise to pay,’ or ‘we promise to pay,’ or ‘we or either of us promise to pay.’ ”

Here again is a correct legal proposition, which was suggested, no doubt, by the language of the note and perhaps by the comments made thereon during the trial.

We can not presume the jury would understand it to mean, as counsel suppose, that if W. B. Broadwell was liable W. H, Broadwell was also. The jury must be given credit for more penetration and intelligence. It was not denied by any one that the former was liable, and the whole question was as to the liability of the latter, though his signature was admitted. The purport and evident object of the instruction was to advise the jury as to the legal meaning of a note signed by two and reading, “I promise to pay.” When the jury considered this in connection with all the other instructions they could not misunderstand it or be misled by it.

It is objected, finally, that instruction Ho. 1 asked by defendant should have been given. We think all of it that was proper will be found in those which were given, and there is no occasion for complaint as to this; but the appellant can not be heard upon the point, because it is not assigned for error nor included in the motion for new trial. O. O., etc., Ry. Co. v. McMath, 91 Ill. 104.

The judgment will be affirmed.

Judgment affirmed,.


author: Conger, J.

text:
    William M. Ashlock v. Walter Vivell.

      Infancy—Sale of Horse to Infant—■Promissory Note—Plea of Infancy— • Fraudulent Intent—Pleading.

    1. An infant who obtains possession of property through the pretense of a purchase, intending at the time not to pay for it, is not to be regarded as the purchaser thereof.
    2. An action to recover damages for such a tort is not an attempt to enforce a contract indirectly, no contract having existed.
    [Opinion filed November 21, 1888.]
    Appeal from the Circuit Court of Greene County; the Hon. G. W. Heedman, Judge, presiding.
    Mr. James R. Ward, for appellant.
    A purchase of property, made with the intent not to pay for it, is fraudulent as between the buyer and seller and no title passes. Farwell v. Hanchett, 120 Ill. 580; Bowen v. Schuler, 41 Ill. 192; Stewart v. Emerson, 52 N. H. 319; Wallace v. Morss, 5 Hill, 391; Eckstein v. Frank, 1 Daly, 335; Donaldson v. Farwell, 93 U. S. 633.
    An infant purchasing property with the intention not to pay for it, is chargeable in an action for a tort. It is a fraud. Strain v. Wright, 7 Georgia, 572; Schuneman v. Paradise, 46 How. Pr. 426; Wallace v. Morss, 5 Hill, 392; Cary v. Holstling, 1 Hill, 311; Badger v. Phinney, 15 Mass. 359.
    A purchase with such intention is such a fraud as will entitle the vendor to avoid the sale, although there were no fraudulent misrepresentations or false pretenses. Farwell v. Hanchett, 120 Ill. 580; Stewart v. Emerson, 52 N. H. 319; Hannequin v. Naylor, 24 N. Y. 139; Devoe v. Brandt, 53 N. Y. 462; Davis v. Stewart, 8 Fed. Rep. 603; Talcott v. Henderson, 31 Ohio, 162; Johnson v. Monnell, 2 Keyes, 665.

      The fraudulent intent may he found from acts of the purchaser after the sale. Bowen v. Schuler, 41 Ill. 192; Walker v. Davis, 1 Gray, 506; Badger v. Phinney, 15 Mass. 359.
    It is sufficient for the avoidance of the sale that the purchaser bought the property with the intention, at the time, not to pay for it; the law does not require, in addition thereto, that it appear that the purchaser used means to deceive and did deceive the vendor. Farwell v. Hanchett, 120 Ill. 580.
    Where such a sale is rescinded by the vendor, the contract is treated as a nullity, and the vendee considered not as a purchaser of the property, but as a person who had tortiously got possession of it, and the form of action in such case, where there is a conversion of the property, is trover. Kellogg v. Turpie, 93 Ill. 266; Allen v. Ford, 19 Pick. 217; Read v. Hutchison, 3 Camp, 351.
    Where property is sold to an infant on credit, and he avails himself of his infancy to avoid payment, the vendor may reclaim the goods as having never parted with his property in them. Badger v. Phinney, 15 Mass. 359.
    The disaffirmance of a voidable contract of an infant, avoids it ah initio, and it ceases to he effective for any purpose. Rice v. Boyer, 108 Indiana, 472.
    The appellee, by pleading infancy, elected to avoid the contract of purchase. This want of assent of appellant is fatal to the contract; it never became complete. The title to the horse did not pass. The contract of sale_being incomplete, appellant could avail of the remedy in tort. Walker v. Davis, 1 Gray, 506.
    An infant is responsible in damages for his torts and frauds, the same as adults. Davidson v. Young, 38 Ill. 149; Matthews v. Cowan, 59 Ill. 345; Strain v. Wright, 7 Georgia, 570; Schuneman v. Paradise, 46 How. Pr. R. 426; Wallace v. Morss, 5 Hill, 392; Badger v. Phinney, 15 Mass. 359; Rice v. Boyer, 108 Ind. 472.
    Mr. Jobs' G. Hendebsos, for appellee.
    There is no allegation in the replication of concealment of the fact of infancy, and no allegation that plaintiff did not then and there know he was dealing with a minor. As the pleader is silent as to his knowledge of defendant’s minority, such silence is equivalent to an allegation that he then and there knew the fact. The rule is tersely stated in Lemon v. Stevenson, 36 Ill. 49, as follows: “The most unfavorable construction must be adopted against the pleader. He is always presumed to state his' case as strongly in his favor as it will bear;” also in People ex rel. v. Swigert et al., 107 Ill. 503.
    If the actual age and appearance of the defendant were such that no one could be deceived by his false statement, then the plaintiff would be without remedy. If his appearance is that of a minor “ it ought to be sufficient to put a party who may be affected by it upon inquiry from a different and competent source, and if he disregard so obvious a precaution, he must submit to the legal consequences of his unguarded conduct.” Conroe v. Birdsall, 1 Johns. Cas. 128.
    In Story’s Equity it is said that “It is well settled that no liability in damages can be fixed upon an infant by reason of a false representation that he is of age, whereby a credit has been given him.” Note to Sec. 240, Story’s Eq., 13th Ed., citing Johnson v. Pye, 1 Sid. 258; Bartlet v. Wells, 1 Best & S. 836; Merriam v. Cunningham, 11 Cush. 40; Burley v. Russell, 10 N. H. 184. And the same principle is again laid down in note to See. 385, citing same cases, also Conrad v. Lane, 26 Minn. 389. See also Gilson v. Spear, 38 Vt. 315, and Liverpool Adelphi Loan Association v. Fairhurst, 9 Exch. 430.
   Conger, J.

The declaratioii in this case consists of two counts. The first an ordinary count in trover for the value of a horse. The second setting forth in detail the sale of a horse worth $250 by appellant to appellee, who was a minor, 'the giving of a note therefor, the concealment by appellee of his minority, and df an intention not to pay for the horse, the sale and conversion of the horse to appellee’s use, and his refusal to pay the note he had given. A demurrer was sustained to the second count. A plea of general issue was filed and also a second plea, averring that the plaintiff delivered the horse to the defendant under a contract of purchase, and in consideration of the delivery of the horse the defendant executed and delivered the promissory note described to the plaintiff; that defendant sold the horse, and at the time of making of the note and the sale of the horse the defendant was under twenty-one years of age, and that at the time the defendant arrived at the age of twenty-one years he did not have, and at no time since did he have, the possession of the horse or any part of the proceeds of the sale thereof.

To this second plea a replication was filed, averring, in substance, that at the time of making the purchase the appellee did not intend to pay for said horse, and with such fraudulent intent upon his part not to pay for the horse, he, by such fraudulent means, procured the delivery to him of said horse, gave his note therefor with the fraudulent intent then formed not to pay said note, but defeat its payment by the plea of infancy, and that he took the horse to a foreign State, sold it and converted the proceeds to his own use; that he afterward refused to pay the note, whereupon appellant tendered him back his note and demanded his horse, etc.

To this replication a general demurrer was filed and sustained by the court, and upon the trial that followed all the instructions of appellant based upon the theory of his replication were refused, and a verdict and judgment for appellee followed.

Counsel for appellee cite a number of authorities upon the question of a minor falsely representing himself to be of full age, but we fail to see their application, except as authority to sustain the demurrer to the second count of the declaration, and as to the propriety of that ruling of the court we do not feel called upon to express an opinion.

The second replication is based entirely upon the alleged fraudulent intent existing in the mind of the appellee, at the time of the pretended purchase, of never paying for the property.

We are also referred by counsel for appellee to the following authorities as conclusive against the right of. recovery in the present case:

Gooley on Torts, pp. 109, 110, says:

“ There are some cases, however, in which an infant can not be held liable as' for a tort, though on the same state of facts a person, of full age and legal capacity might be. The distinction is this: If the wrong grows out of contract relations,
and the real injury consists in the non-performance of a contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly, by counting on the infant’s neglect to perform it or omission of duty under it as a tort. The reason is obvious. To permit this to be done would deprive the infant of that shield of protection which, in matters of contract, the law has wisely placed before him.” Icl., pp. 106, 197.

Chancellor Kent says: “ The fraudulent act, to charge him, must be wholly tortious, and a matter arising ex contractu, though infected with fraud, can not be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action.” 2 Kent’s Com. p. 277, 10th Ed. '

But this case as presented by the replication does not consist in a failure to perform a contract, but alleges that appellee became possessed of the horse by fraudulently going through the forms of a contract of purchase, when, in fact, no contract was ever made. In Farwell v. Hauchett, 120 Ill. 577, our Supreme Court, while holding that one purchasing goods with an intent not to pay for them gets no title, uses the following language: “ The fraudulent vendee is not considered as a purchaser of the goods, but as a person who has tortiously got possession of them.”

If an infant vendee obtains possession of goods through the pretense of a purchase, but intending at the time not to pay for them, there is, in fact, no contract executed between himself and his vendor. Their minds never meet. The transfer of possession as made by the vendor is based upon a supposed contract of sale, while such possession is received by the vendee Fraudulently and tortiously. If the vendor knew the secret intentions of the vendee, he would no more surrender his property than he wrould to one seeking to take it from him by violence and without right. Hence, an action to recover damages for such a tort is not an attempt to enforce the contract indirectly hy counting on the infant’s refusal to perform it, for no contract existed; but a recovery is sought for the damages occasioned by the wrongful and fraudulent act of the infant.

Such a case is to he distinguished from one where an infant vendee, hy virtue of an agreement, made at the time in good faith, to purchase and pay for goods, acquires their possession, and when sued for the purchase price pleads his infancy to defeat a recovery. In the latter case he has made a contract, which he may legally avoid if he desires; but in the former he neither made nor intended to make any contract, but obtained the possession of the property by fraud. Tyler on Infancy and Gov., page 183, Sec. 125; Rice v. Boyer, 108 Ind. 479; Kellogg v. Turpie, 93 Ill. 266.

We think the demurrer to the second replication should ' have been overruled.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Congee, J.-

text:
    C. B. Chapman v. Jacob Windmiller.

      Sales—Fraudulent Conveyances — Preferences — Notice — Subsequent Sales.

    1. A creditor violates no rule of law in accepting goods in payment of his debt, although he knows that the transfer to himself will defeat other creditors and that his debtor intends to pay him in preference to them. This rule also applies to subsequent sales by the vendee to a third person.
    2. In an action to recover the value of goods alleged to have been wrongfully attached and sold as the property of a third person from whom the vendor of the plaintiff derived title, this court reverses the judgment for the plaintiff b 'Cause of defective and conflicting instructions touching alleged fraud and notice.

      [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. Charles Sooeield, Judge, presiding.
    Messrs. Asa C. Matthews and Obb & Cbaweobd, for appellant.
    Messrs. JR. W. Mills and Mobrison & Whitlock, for appellee.
   Congee, J.-

This was an action by appellant against appellee as sheriff of Pike county. Certain attachment writs had been issued against Mrs. Lizzie Fishel and placed in the hands of appellee as sheriff, by virtue of which he seized and sold the stock of groceries involved in this case. She had been doing a grocery business under the name of Fishel & Co., her husband, Ferdinand Fishel, attending to the business for her.

Lizzie Fishel had previously bought this stock of goods from her brother-in-law, Albert Fishel, to whom she was still indebted for the purchase price, having given her note therefor. This note was in the hands of Annie Fishel, the wife of Albert.

Lizzie Fishel, on the first day of January, 1887, sold, as she claims, the entire stock of goods to her sister-in-law, Annie Fishel, in payment of the said note, and on the same day Annie Fishel, as she claims, sold the same stock to appellant in payment of certain indebtedness owing to appellant and others.

Shortly afterward the goods were" seized by the attachment writs issued in favor of various creditors of Lizzie Fishel, sold, and the proceeds applied on such writs, and now appellant seeks to recover their value from the appellee, claiming that the sales made were in good faith and transferred the title of the goods to himself before any lien attached under the attachment writs. The defense is based upon the theory that the sale from Mrs. Lizzie Fishel to Annie Fishel was a mere sham and fraudulent and void as to her creditors, and that appellant had actual knowledge thereof, or of such facts and circumstances as would be equivalent to actual notice, and therefore took no title as against such creditors.

We shall express no opinion upon the facts as presented by the evidence, for the reason that, in our opinion, the instructions given to the jury upon the part of the appellee were clearly erroneous. One of them was as follows:

“ That in order to charge a party with notice of the fraudulent purpose or intention of another in the sale of personal property,it is not necessary that such notice should be proven by direct or positive evidence, but such notice may be proven by facts and circumstances. And if in this case they believe from all the evidence in the case that Lizzie Fishel, for the purpose of hindering and delaying her creditors in the collection of their debts, sold the goods in question to Annie Fishel, and that said Annie Fishel had notice of such fraudulent intention, or that she had notice of such facts as would have enabled her to have ascertained said alleged fraudulent intention by inquiries, and such as would have put a reasonable person on inquiry, and it fails to appear in the case that she, Annie Fishel, made any inquiry or investigation as to the purpose or intention of Lizzie Fishel in making said sale, then Annie Fishel would be legally chargeable with notice of such fraud, if any there was, and Annie Fishel, in that event, was not a bona fide purchaser of said goods, and acquired no title to the same by said purchase; and if they further find from the evidence that the plaintiff, Chapman, made the qmrchase of the same goods from Annie Fishel with notice of the fraudulent intent in the first sale, or that Chapman had notice of such facts and circumstances as would put an ordinarily prudent man upon inquiry as to the intention of the vendor in making said sale, and that upon inquiry such fraudulent intent in first sale, if any there was, could have been ascertained, then Chapman is legally chargeable with notice of the fraudulent intention in making said salo, and he acquired no title to said goods as against the creditors of Lizzie Fishel.”

This instruction proceeds upon the theory that if the saTe was made by Lizzie Fishel “for the purpose of hindering and delaying her creditors in the collection of thei'r debts, and that Annie had notice of such intention, or of facts to put her upon notice, the sale would be void and pass no title as to the «•editors of Lizzie Fishel. By it the jury are virtually told that although Annie Fishel took the goods in payment of an honest debt due her, and for the sole purpose and with the intention alone of securing herself, the sale would still be fraudulent, if she knew or could know that the motives that induced Lizzie to act were fraudulent.

This proposition is followed up by the further one that if appellant, when he bought of Annie, had notice of Lizzie’s fraudulent intent in making the first sale, then his purchase from Annie, though made in good faith by both himself and his grantor, and in payment of honest debts, would be void and transfer no title as against the creditors of Lizzie Fishel.

In our opinion, both of these propositions are erroneous. As to the first sale, in order to render it void as to Annie Fishel, she must have participated in the fraud, and intended on her own part to defraud the creditors of Lizzie Fishel.

Although she may have known that Lizzie Fishel intended by the sale to defraud her creditors, she would not be affected by that knowledge if she received the goods in payment of an honest debt.

As to the second sale, any knowledge that appellant may have had of a fraudulent intent upon the part of either Lizzie or Annie Fishel would not affect his title, if in such purchase he took them in payment of an honest debt. Gray v. St. John, 35 Ill. 222; Anderson v. Warner, 5 Ill. App. 420; Dudley v. Danforth, 61 N. Y. 626; Ewing v. Runkle, 20 Ill. 457.

If the creditors of Lizzie Fishel were claiming title to the goods because Lizzie Fishel had fraudulently procured them of such creditors, it would be true that she could transfer no better title than she herself had to one who had notice of her defective title, and in such a case notice to the vendee becomes important; but when, as in the present case, such creditors are seeking- to sell the goods in question as the property of Lizzie Fishel, and because, as they assert, she has never legally parted with the title so far as they are concerned, a different question is presented—and that is, that a creditor violates no rule of law when, actuated alone by the natural desire to protect his own interest, he receives goods in payment of an honest debt, although he may know that the effect of such purchase will be to deprive other creditors of all means of obtaining satisfaction of their claims, and although he may also know that his debtor intends to pay him and thereby defeat his other creditors. Gray v. St. John, supra.

The instructions for the appellant seem to be based upon the theory of the law we have advanced, and had they not been so squarely contradicted by those given for appellee might have been sufficiently clear; but we think the instruction we have quoted was not the law and must have misled the jury, and for that reason we feel constrained to reverse the judgment of the Circuit Court, and remand the cause.

Reversed mid remanded.


author: Pleasants, P. J.

text:
    Martin Gallagher et al. v. The People of the State of Illinois.

      Dram-Shops—•Information—Presentation By State's Attorney—Affidavit —Statute—Question of Fact—Instructions.

    1. In a prosecution for selling liquor to persons in the habit of getting intoxicated, by information presented in the County Court by the state’s attorney, such information may be verified by the affidavit of some other person.
    2. In the case presented, the information being verified by a third person and presented by the state's attorney, it did not require indorsement by the judge of the court below.
    3. The question whether persons to whom liquor has been sold were in the habit of getting intoxicated, is one of fact, directly provable, and not an opinion or conclusion from other facts.
    4. Where, in a prosecution for selling liquor to persons in the habit of getting intoxicated, the court has given an instruction in the words of the statute, it may properly refuse others purporting to define the word ‘‘ habit.”
    [Opinion filed December 1, 1886.]

      Appeal from the Comity Court of Schuyler County ; the Hon. E. J. Pemberton. Judge, presiding.
    In connection with this case see the following ease between these parties.
    Messrs. O. A. De Leuw and G. Barrere, for plaintiffs in error.
    Messrs. S. B. Montgomery, State’s Attorney, and Gray & Waggoner, for defendants in error.
   Pleasants, P. J.

This was a prosecution by information containing one hundred and two counts for selling liquor to persons who were in the habit of getting intoxicated, filed in the County Court of Fulton county, and removed by change of venue to Schuyler, where a trial by jury-resulted in a conviction on eleven counts, and judgment was entered upon the verdict.

After the caption, it proceeded as follows: “How on this day comes into open court, in his own proper person, W. M. Vandevender, state’s attorney in and for said county, in the name and by the authority of the people of said State of Illinois, and prosecutes in this behalf for and on behalf of said people, and informs the court,” etc. It concluded, “ against the peace and dignity of the said people of the State of Illinois,” and was signed by said state’s attorney. But it was verified by the affidavit of Charles S. Phelps, and was without an indorsement by the county judge that there was probable cause for filing the same. And because it was not so indorsed nor verified by the affidavit of the state’s attorney, the defendants moved the court to strike it from the files. The motion was denied, and this.ruling is the principal error here assigned.

A majority of this court think it was right. The statute provides .that “ all offenses cognizable in the Comity Court shall be prosecuted by information by the state’s attorney, attorney general or some other person, and when an information is presented by any person other than the state’s attorney or attorney general, it shall be verified by affidavit of sueli person that the same is true, or that the same is true as he is informed and believes. Before an information is filed by any person other than the state’s attorney or attorney general, the judge of the court shall examine the information, and may examine the person presenting the same, and require other evidence and satisfy himself that there is probable cause for filing the same, and so indorse the same.” Starr & C. Ill. Stat., Vol. 1, p. 727, Sec. 235.

It is conceded that the Constitution requires, though the statute in terms docs not, that every information, by whomsoever presented, must be verified by affidavit. Myers v. The People, 67 Ill. 503. At common law it differs from an indictment only in being presented by a competent public officer on his oath of office instead of a grand jury on their oath.” 1 Bouv. Law Dict. 631; Bishop on Crim. Procedure, Vol. 1, Sec. 141, 3d Ed.

By the English law, as it stood when our forefathers imported it to this country, the right to make an information was exclusively in the attorney general, or if that office was vacant, the solicitor general; and he acted therein upon his official discretion without the interference of the court. The court did not grant him leave to file it, for the right was his without leave. Bishop, Sec. 142.

As has been seen, our Constitution has changed the common law in that the officer can not file the information upon his oath of office alone, but it must be further supported by a distinct affidavit; and the statute has still further changed it in three particulars, viz: (1) It may be presented by a person other than the public prosecutor; (2) when so presented it must be verified by the affidavit of such person that the same is true, or that he is so informed and believes; and (3) the judge in such case must examine it and certify by his indorsement thereon that there is probable cause for filing it.

It is claimed that the information in the case was “ filed ” or “ presented ” by Charles S. Phelps, and not by the state’s attorney, and therefore is fatally defective for want of the judge’s indorsement that there was probable cause for filing it.

This claim rests upon the sole reason that it was verified by his affidavit, and in our opinion is untenable. The provision that when presented by a person other than the state’s attorney or attorney general it must be verified by the oath of such person, implies that it may be presented by the state’s attorney or attorney general and yet be verified by the affidavit of some other person. And this is altogether reasonable. In most cases the state’s attorney will have no personal knowledge of the offense and can not so verify the information; and in many, may not be willing or able to swear that he believes the affidavit or statement given him, and yet be satisfied that public justice demands an investigation; in which case he should be willing, upon proper affidavit of some other person, officially to present and be responsible for the information, rather than to discredit the charge in advance by refusing to do it. For if he should refuse, the party complaining may present it himself, and if he can procure the indorsement of the judge it will be the duty of the state’s attorney to prosecute it no less than if he had presented it. In Parris v. The People, 76 Ill. 274, the information was in the name of and signed by a private eiti-zen, and though held bad for other reasons, this was not suggested as a defect. Here the information, on the face of it, purports to be given by the state’s attorney in his proper person, as such, and is signed by him. This is according to the form at common law where it is presented by the attorney-general. See Bishop, Sec. 146.

We are of opinion, therefore, that it was presented by the state’s attorney, and not by Charles S. Phelps. Its presentation by the public-prosecutor, which, like all his official acts, is under the sanction of his official oath, with the affidavit of such other person, is regarded by the law as a protection to the accused against any abuse of the process of the court equal to that afforded by the indorsement of the judge when it is presented by an unofficial person.

In respect to the other points made, we hold that whether the persons to whom the defendants sold liquor were in the habit of getting intoxicated was a question of fact and not of opinion nor a conclusion from other facts, and was therefore directly provable; that having given an instruction in the language of the statute, it was not error to refuse others asked which purported to define the term “ habit35 as used in the statute (Mullinix v. The People, 76 Ill. 211), and that the judgment was properly several. Perceiving no material error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Martin Gallagher et al. v. The People of the State of Illinois.

      Dram-Shops — Common Nuisance—What Must Appear to Warrant Conviction—Evidence.
    1. To warrant the conviction of a dram-shop keeper for keeping a common nuisance, it is only necessary to show that the defendant kept a place for the sale of liquor, and that at such place, within eighteen months before the filing of the information, intoxicating liquor was sold to a person who was intoxicated, or who was in the habit of getting intoxicated.
    2. Upon an information charging the defendants with keeping a common nuisance, under Sec. 7 of the dram-shop act, it is held: That there was no error in the refusal of the court to quash the information; that the court properly permitted witnesses to state that certain persons named were in the habit of getting intoxicated; that the refusal to permit certain witnesses to state whether they had contributed money to aid the prosecution of the case, though improper, is not such error as to require a reversal; and that certain other matters in regard to the prosecution and the defendants’ license were properly excluded.
    [Opinion filed February 17, 1887.]
    In error to the County Court of Fulton County; the Hon. T. A. Boyd, Judge, presiding.
    In connection with this case, compare the case of Nicholson v. The People, ante, p. 57.

      Messrs. II. M. Masters and G. Barbers, for plaintiffs in error.
    Messrs. W. M. Yaudevendbr, State’s Attorney, and Gray & Waggoxer, for defendants in error.
   Per Curiam.

This was an information charging the defendants with keeping a' common nuisance, under Sec. 7 of the dram-shop act. There was a conviction and judgment thereon that the defendants each pay a fine of $50, and be imprisoned in the county jail for twenty days, and abating the saloon, etc.

It is urged the information should have been quashed because not filed as required by law. In another case wherein these parties were connected (ante, p. 397), we had occasion to consider the subject here involved, though, not in precisely the same aspect as now. We are inclined to hold there was no error in this respect, nor do we' think the first and second counts are subject to the objection of duplicity.

Another objection, which we considered in the former case, is here presented, that the court permitted witnesses to state that certain persons named were in the habit of getting intoxicated. Tor the reasons then expressed we hold there was no error in this respect.

It is urged, also, the court erred in not allowing defendants to ask the witnesses Eskridge, Brown and Bice, on their cross-examination, whether they had not contributed money to aid the prosecution of the case. It was a proper question, tending to show the interest they took in the case, and might, in some degree, have affected their credibility with the jury; but the majority of the court are of opinion, in view of the other evidence and of the whole record, that the refusal to allow this question is not such error as to warrant a reversal of the judgment.

It was sought to prove by Daudson and Euchelberger that they had signed the complaint on information in the case; that they were members of the executive committee of the Temperance League, and that they had proposed, if the defendants would quit the business, no new suits would be commeneed against them. This was excluded by the court, and, as we think, properly.

The court excluded the license of defendants to keep a dram-shop. No valid objection is perceived to this ruling. Thedefendants were not charged with selling without a license, but with selling to persons to whom the law says liquors shall not be sold.

More important questions arise upon the construction given by the court to the section of the statute under which the information was presented, as shown in the giving and refusing of certain instructions. In effect,, it was held that if at any time within eighteen months before the filing of the information the defendants kept a place for the sale of liquor, and that at such place within that period intoxicating liquor was sold tó a person while intoxicated, or who was in the habit of getting intoxicated, such sale would sustain the charge set out in the information, and that in such case it was immaterial whether the seller knew the character or condition of the person to whom the liquor was sold.

A majority of the court agree with the construction thus put upon the statute. The evidence was ample to sustain a conviction under this view of the law, and the judgment will be affirmed. .

Judgment affirmed.