text:
    C. Aultman & Co. v. Hugh Graham.

      Negotiable Instruments—Note—Surety—Settlement—Error in Computation—Receipt in Full—Correction—■Distinction bettveen “ Error’' and ‘' Mistake"—Instructions.

    1. Mutuality in error is not essential to the right of correction.
    2. In an action to recover from the surety a balance due upon a note, a mistake having been made and a receipt in full given upon payment of less than the correct amount, it is held: That a recovery should be had for the balance rightfully due; and that an instruction given for the defendant was improper,
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Bayburkt & Barky, for appellant.
    In the light of Graham’s testimony both parties acted under a misapprehension of the facts. This misapprehension being mutual, there was no compromise. Easton v. Strother, 57 Iowa, 506; Town v. Wood, 37 Ill. 512.

      If appellant’s attorney made a mistake when lie offered to give a receipt in full for $79.42, it is not bound' by that receipt. Eddie v. Eddie, 61 Ill. 134; People v. Cooper, 10 Ill. App. 384; Easton v. Strother, 57 Iowa, 506.
    A receipt purporting to be in full of all claims may be varied, explained, or contradicted by parol testimony. Ditch v. Vanhardt, 82 Ill. 134; 1 Greenl. Ev., Sec. 305.
    This is not an action to reform a contract. It seeks to recover the balance due on an entire debt, only part of which, by a miscalculation, was received. The mistake need be made by only one of the parties, and, having been made, whichever was the loser thereby may recover. Eddie v. Eddie, 61 Ill. 134; Town v. Wood, 37 Ill. 512; People v. Cooper, 14 Ill. App. 384; Bishop on Contracts, Secs. 313, 703.
    Defendant’s fifth instruction assumes as a matter of fact that defendant, Graham, knew there was a dispute between the Doutlietts and appellants. It also informs the jury that if Graham accepted in good faith the offer of settlement as a compromise of a claim he believed to be in controversy between other parties and appellant, he was entitled to a verdict. This is not the law. The offer to settle must be as a compromise of a disputed claim, as well as the acceptance of the same. To support the view that this settlement was a compromise of a disputed claim, it must appear from the record that the offer to settle was made as a compromise. The appellant proved it made a mistake and did not offer a compromise. Graham, claiming payment as a compromise, the burden of proof was upon him. American v. Rimpert, 75 Ill. 228.
    Messrs. Fifer & Phillips, for appellee.
    A sum paid in settlement of a larger disputed claim is a bar to suit for balance; and a, written receipt in full is evidence of the highest and most satisfactory character, which can only be overcome by the most convincing proof. Rosenmueller v. Lampe, 89 Ill. 212, and cases cited.
    In this case no mutual mistake is shown. Graham made the contract he meant to make; and appellant is seeking relief in a court of law against its own negligence.

      We are not disputing the proposition that where two persons contract under a mutual mistake of fact, such mistake may he relieved against in equity. There was here no mutual mistake, and this suit is not in equity. Under the authorities cited by appellant, the mistake must he common to both parties in order to avoid the contract.
    Appellant, by permitting the removal of the mortgaged property, released Graham. Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. School Trustees, 46 Ill. 428; Springer v. Toothaker, 43 Me. 381; Ferguson v. Turner, 7 Mo. 497; Commonwealth v. Miller, 8 S. & R. 452; Baker v. Briggs, 8 Pick. 121; N. H. Savings Bank v. Concord, 15 N. H. 119.
   Pleasants, J.

In August, 1882, Graham, as surety, signed, with It. H. & J. Douthett, five promissory notes to Aultman & Co., a manufacturing corporation of Canton, Ohio, for a steam threshing rig, which were secured by mortgage on the machine and five horses. The Douthetts removed to Dakota, taking the mortgaged property with them. They paid the first of these notes, and Graham, after their removal, paid the second. When the mortgage expired, in August, 1884, a new one was executed by the Douthetts in Dakota, upon the same property, and five additional horses. In the spring of 1886 it was foreclosed, but the proceeds were insufficient to pay the two remaining notes in full. Thereupon, on the 13th of April, J. C. McMath, appellant’s attorney, wrote to Graham communicating the result reported, that the net proceeds amounted to §593.64, leaving a balance due of §127.36, with interest from April 6th, and asking if, as surety, he would not prefer to pay it at once, rather than require the company first to obtain, at useless cost, a judgment against the principals. On May 4th he wrote again, referring to his previous letter as still unanswered, and correcting an error therein. He says he omitted to include attorneys’ fees for foreclosing, in the costs, which reduced the net proceeds to §541.30, and left a balance of §179,70.

In the meantime Graham had informed his attorneys and also Messrs. Holder, Milner & Co., appellant’s agents at Bloomington, of the receipt and contents of the first, and told them he would not pay until he should see a certified copy of the mortgage, and an itemized statement of the expenses of foreclosure. They so informed appellant by letters addressed .to appellant, but which did not reach its attorney until May 8th. On that day he inclosed to its said agents copies of all the notes, with the credits indorsed, and of the constable’s certificate of the mortgage sale, with a statement of the expenses, showing gross proceeds $668, and expenses $74.36, leaving net proceeds $593.64, and wrote that after his first letter to Graham he was informed by his correspondents that the statutes of Dakota allowed attorneys’ fees in such a case to be charged against the mortgagor, and that $50 had been so charged in this, and that therefore he insisted on the corrected balance, and would proceed to judgment unless Graham would pay it. Deducting this fee also, the amount to be credited would be $543.64, which was, in fact, indorsed on the two notes. At the same time he wrote also to Graham, and to his attorneys, to the same effect, referring them to the copies of papers so sent to Holder, Milner & Go. He had no copy of the mortgage, and the original was in the recorder's office in Dakota. Graham then called on Holder, was shown these papers and talked the matter over with him.

There ivas some further correspondence between these parties, from which it appears that neither the notes nor the mortgage provided for attorneys’ fees in the event of foreclosure or other legal proceedings to collect the debt; that Graham claimed to have been told by Douthett that the balance stated was not right, but the only specific objections suggested were to the attorneys’ fees, an item of $6.25, for crying the sale, and the supposed charge of compound interest; that McMatli insisted all payments had been properly credited by indorsement, and that computation from the figures given would certainly show that the balance stated did not include any compound interest. It also appears that, in his talk with Holder, Graham waived all objections to the account except to the item for attorneys’ fees.

On the 4th of August McMath wrote to him as follows: <!I am advised by Messrs. Holder, Milner & Go. that yon still decline to pay the balance due on the R. II. Bouthett notes, numbers 102068-9, unless the item of 850, attorneys’ fees, be dropped. My correspondents in Dakota, who foreclosed the mortgage, advised me that under the statute the attorneys’ fees should he paid by the mortgagor, and it was on the strength of this that I included it in the amount to he collected. However, rather than go to the trouble and expense of a tedious litigation, I will reduce the claim by the amount of the fee, and accept the balance, which is $77.36 plus four months’ interest at eight per cent. Send me a check for $79.42, and it will be accepted in full.” Thereupon appellee deposited that sum with Holder, Milner & Co., reepuesting them to advise appellant and get its receipt in full, hut not to remit the money until the receipt came. They did so, and the receipt came as follows: ‘‘ Canton, Ohio, August 10, 1886. Received of Hugh Graham, of Bloomington, Ill., $79.42, which is hereby accepted, as in full of his liability as surety on the notes of R. H. and Joseph Bouthett to C. Aultman & Co., Nos. 102066, 102067, 102068 and 102069. J. C. McMath, Attorney for C. Aultman & Co.”

On the 16th, McMath wrote to appellee: “I have to-day received from Holder, Milner & Co., a check for $79.42, which I had agreed to accept in full of your liability on the 1L II. Bouthett notes. The amount was thus stated to you by some mistake, as you may easily see by reference to my previous letters, which stated the amount to be $127.36, with interest at eight per cent, from April 8tli. This is the net amount, leaving out the item of $50, attorneys’ fees, to which you objected. I do not know how I came to make such an error in the amount, but it was probably a mistake in writing the letter. The difference is $51.33, which I will ask you to remit. I regret the annoyance that my blunder will cause you, and hope that you will overlook it.” Mr. Graham declining to comply, this suit was brought Oct. loth, in assumpsit on the common counts, with copy of the note attached, to recover the difference stated. It was tried on the general issue and resulted in a verdict and judgment for the defendant.

There can be no doubt that the statement of “'the balance” in McMath’s letter of August 4th as $77.38 and interest from April 6th, and his offer to accept that sum as in full of appellee’s liability, were made under a mistake of fact. The preceding correspondence and figures repeatedly given show it was really about $127.36 and interest. That is the precise amount stated in the first letter, and the trifling difference in the statement of a later one was due to an error in computation.

It appears that all this correspondence, except the letter last above quoted, was conducted on the part of appellant by Mr. Shanafelt, a clerk in its employ, and under the direction of McMath, who had charge of its collections. His explanation, which is entirely probable, is that he had memoranda relating to this claim containing statements of the balance both with and without the attorney’s fee, which were respectively $177-.36 and $127.36; that when about to write to Mr. Graham after they had concluded not to insist on the attorney’s fee, he looked for a memorandum, and seeing the one which stated the balance as $127.36 and supposing it to be the one including the fee, made the deduction from that amount and wrote accordingly. This supposition was a mistake as to the memorandum, and consequently, as to the fact it was supposed to represent. 1

But it is said on behalf of appellee that it was not a mutual mistake. He swears he did not know the actual balance; that it had been stated differently at different times; that he did not know the offer was made under any mistake; that from what he had been told by Douthett, he thought he was paying rather more than was really due and that he paid it in good faith and as being better than to litigate.

While he doubtless did not remember the exact balance without the fee, it is certain it had been clearly stated to him in writing, together with the data from which it was ascertained ; that though as stated it was not always the same, yet the difference was trifling and easily accounted for; that the data were the same, and that the balance was never placed at less than $127.36. It would therefore be remarkable if he could so far forget such a matter in so short a time as not to know that its statement as $77.36 was a mistake, though he did not know the extent or cause of it.

But this ignorance on his part and good faith in accepting the offer as made would not bind appellant, if the amount therein stated was clearly an error. Mutuality in error is not essential to the right of correction. To warrant the reformation of an agreement on the ground of mistake of fact, the mistake must be mutual. The proposition supposes the existence of an agreement—that is, a mutual assent to all of its provisions; an actual meeting of minds in reference to them. If either party could have them reformed or changed merely because he was mistaken as to some fact, however material to him, he could thus bind the other to terms he had never, in act or intention, accepted. But if both were so mistaken and their agreement was based on a mutual misunderstanding of fact, then, though actually assented to as made, it would not be, in operation, what either contemplated, and therefore neither should be allowed to enforce it. .

A mistake of fact is a supposition of the existence or nonexistence of some subject, quality, condition or relation, contrary to the fact. It is no part of the agreement, nor does it appear therein or therefrom, either in terms, by reference or implication. It may arise wholly within the mind of the party acting under it, without a suggestion of any falsehood or suppression of any truth by the other. Thus acting of his own will, it must also be at his own risk. The agreement itself is just what both understood and intended it to be. It is sensible and consistent. The only trouble is that one party, in consequence of a mistake wholly his own, in reference to some fact, finds that it does not and can not operate as he expected. But the other was not acting under any mistake nor responsible for any. Expecting to submit to its operation according to its meaning against himself, he should have the benefit of it in his favor.

But an error is materially different. It is in the agreement or transaction itself, and yet so incompatible with it or with reason and the nature of things that the mind at once perceives it could not have been assented to and ought not to be there. In tills case the offer was expressed to be to “reduce the claim by the amount of the fee and accept the balance, which is §77.36 and interest.” How, when itismade to appear, either by the offer itself or by evidence aliunde, that the claim intended was §177.36 and the fee intended was S50, it is mathematically certain that the balance was not §77.36 but §127.36; and if appellant assented to the preceding terms it could not have assented to accept §77.36 and interest, though it so expressly stated. The statement of the balance was a pure error. So if A in terms agrees to pay B a certain sum as being the balance due upon a settlement of all their mutual claims, and it afterward appears that a proper claim of either party was omitted in the accounting it is certain that the balance stated is not the amount contemplated by the agreement. And we believe it will be found in every case that the error is in the transaction itself and is shown to be such by the other parts of the agreement proved. It should therefore be corrected whenever discovered, if correction is practicable without injustice. For error, of itself, can never be a ground of right to him in whose favor it would operate if nncorrected. If other action innocently taken upon it would make its correction injurious, the rule which places the loss where one of two innocent parties must suffer, might justly forbid it. But, excepting such cases, correction can do no wrong. It would neither impose any new obligation nor extinguish any existing when the error occurred.

In this case nothing appears that should prevent it. Appellee has assumed no position in consequence of the error which would make its correction injurious. He would not be bound as acceptor of an offer to take §127.36 and interest, but the question of his liability and its amount would be open, to be determined by the facts, including the erroneous statement of the balance, the offer to accept that amount as in full, and the receipt given in pursuance of it.

In the view thus taken of what an error is, it is clearly immaterial to inquire into the cause of it, or which party committed it, or which would suffer by its operation, or whether it was unknown at the time to only one or to neither of the parties. Nor is the right of correction affected by the fact, if it be a fact, that the offer was made by way of compromise of a disputed claim. The error is in the amount stated, and for whatever purposes made, or however or by whomsoever the error was committed, and whether unknown to both or only one of the parties, the true amount should be substituted.

But the court below, at the request of defendant, gave to the jury the following instructions :

“Ton are instructed that if you believe from the evidence that a receipt in full was given by plaintiff on payment of $79.42, then said receipt should govern unless plaintiff overcomes the same and shews by a preponderance of the evidence, not only that the acceptance of §79.42 as a full payment was a mistake on its part, but that defendant know that it was a mistake and sought to take advantage of the same.
If you believe from the evidence that defendant Graham did not in fact know of his own knowledge how much was due on the notes, but knew the amount was in dispute between Douthett and plaintiff, and if you further believe that under such circumstances he accepted the offer of plaintiff’s attorney to take §79.42 in full settlement in good faith as a compromise, then you are instructed that such settlement is binding and your verdict shall be for the defendant.”

For the reasons above stated we hold that the giving of these instructions was error for which the judgment should be reversed and the cause remanded..

Reversed and remanded.


source: Caselaw Access Project

author: Congee, P. J.

license: Public Domain

text:
    Kankakee Drainage District v. The Commissioners of Lake Fork Special Drainage District.

      Drainage—Statutes—Connection of Different Systems—Action of Lower against Upper District—■Statute of Limitations—Plea Hn Abatement— Damages—Evidence—Instructions.

    1. Where a ditch of an upper drainage district connects with that of a lower district, the cost of necessary enlargement, together with a fair proportion of the original cost of the lower ditch, is a corporate expense of the upper district, which should be apportioned by the commissioners thereof among the lands benefited according to benefits.
    2. In an action by a lower against an upper drainage district to recover the cost of the enlargement of the plaintiff’s ditch and a fair proportion of the original cost, the question as to the cost of the defendant’s ditch is immaterial.
    3. A plea in abatement by a corporation aggregate must purport to be by its attorney.

      4. It is proper t.o overrule a motion to quash a summons where no reason is assigned therefor and no proof offered in support thereof.
    5. After the court has sustained a demurrer to a plea of the statute of limitations, it is proper to refuse an instruction based on that defense.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of' Piatt County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. William B. Webber, for appellant.
    Messrs. S. B,. Heed, H. H. Crea and W. E. Lodge, for appellees.
   Congee, P. J.

This was an action brought under the 42d section of the drainage act of 1885 by appellee against appellant in the Piatt Circuit Court. The appellant district was organized under the drainage laws of May 16, 1879, in the Champaign County Court and the appellee district in the Piatt County Court, under the drainage, law approved May 29, 1879, and the several amendments thereto. The Kankakee district was the upper, and the Lake Fork the lower district; i. e., as the ditches of the two districts were finally constructed, the water from the Kankakee district flowed into and through the ditches of the Lake Fork or lower district.

The ditches in both districts had been laid out and partially constructed prior to July 1, 1885, but it was- after that when the ditch, of the Kankakee district was connected with that of the Labe Fork district, and therefore we are of opinion that the present drainage law, in force July 1, 1885, governs the rights of the parties in this action.

The declaration contained two counts. The first alleged that a ditch had been constructed by the Ijake Fork district of sufficient capacity to carry oE all the waters that would fall upon such district—to properly drain all its lands—and also to carry oE all water that would naturally flow into said district from lands above the same; that on the 12th day of July, 1885, the Kankakee district connected its ditch with the upper end of the Lake Fork ditch, so that a much larger quantity of water was caused to flow into the latter ditch than would naturally flow into the same, rendering it necessary to enlarge the lower ditch, which was done at great expense, etc., and that it was the duty of the Kankakee district to pay such cost of enlargement.

The second count declares for the amount of money the lands within the Kankakee district would have been chargeable with toward the construction of the Lake Fork ditch if such lands had been originally in the Lake Fork district.

To this declaration a plea in abatement to the jurisdiction of the court was filed reciting that the commissioners (naming them) in their own proper persons come and defend, etc. A demurrer was sustained to this plea, and appellant filed an amended plea of the same character, but purporting to be by them as commissioners. To this amended plea a demurrer was also sustained, and we think rightly. A plea in abatement by a corporation aggregate must purport to be by their attorney. Nixon, Ellison & Co. v. S. W. Ins. Co., 47 Ill. 444; Nispel v. W. U. R. R. Co., 64 Ill. 311.

The appellant next entered its motion to quash the summons, which was overruled. This, we think, was proper, as there was nothing shown in support of the motion that the issuance and service of the summons was forbidden by the statute; for aught that appears upon the face of the motion, or the summons, appellant’s commissioners may have been residents of Piatt County, although served in Champaign. The ruling of the court was no violation of the principle enunciated in Safford v. Sangamon Ins. Co., 88 Ill. 296.

Appellant then filed pleas of not guilty, upon which issue was joined, and a plea of the statute of limitations, to which a demurrer was sustained by the court. No error being assigned upon the court’s action in sustaining the demurrer, we can not notice the error assigned upon the refusal of the court to instruct the jury upon the statute of limitations. There being no plea of the statute of limitation before the jury, it would have been improper for the court to have given an instruction upon the subject. ■

Fpon trial, verdict was for appellee in the sum of $8,000-A remittitur was entered for $4,000, and judgment rendered for $4,000.

Sec. 42 of the drainage act of 1885 provided: “And the owners of land outside the drainage district, or another dr'ainage district, may connect with the ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district; or if such connection shall, by increase of water, require an enlargement of the district ditches, then the outside owners of land so connecting, or other drainage district,.as may be, shall pay the cost of such enlargement. If individual land owners outside the district have or shall so connect, they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage shall be treated, classified and taxed like other lands within the district.”

The principal objections to the merits, as urged by counsel for appellant, if we understand them properly, are as follows;

■First, because evidence was admitted tending to show what amount would have been assessed upon the Kankakee district, or the lands embraced within it, in the aggregate, toward the construction of the Lake Fork district diteli, had the former district been originally included in the latter, instead of a classification of the lands by which the burden to be imposed upon each tract should be first ascertained and charged against it separately, according to the benefits received. If this were the true construction of this section, it is apparent it could not be enforced. The commissioners of Lake Fork district clearly have no authority to classify or assess the lands in the Kankakee district at any time.

The commissioners of the Kankakee district can not do so until the amount necessary to be contributed to the Lake Fork district ditch is ascertained in some legal way. It may be that the commissioners of the two districts could mutually agree upon this amount, but if they fail to do this, we think the proper method of arriving at it would he by suit, in which the amount the upper district, as a whole, should contribute to the lower for the use of the latter’s ditch, when no enlargement is required, could be determined, and then such amount should be apportioned by the commissioners of the upper district upon the lands of such district according to benefits, in accordance with the principles of apportionment laid down in the drainage law.

This view, we think, is supported by the language of the clause—16 If individual land owners * * shall so com neet * * * their lands benefited by such drainage shall be treated, classified and taxed like other lands within the district.” This clause, by express words, confines lands that are to he classified and taxed as other lands within the district, to individual land owners, making no express provision in reference to the manner in which other districts shall raise the amount required of them.

If the ditch of the lower district has to he enlarged to accommodate the waters from the upper district, the cost of such enlargement should also be borne by the upper district. And this amount, together with its fair proportion of the original cost of the lower ditch, is a corporate expense, to be borne by the upper district like other corporate burdens, and to be apportioned among the lands embraced in the district, according to benefits, by its own commissioners.

Second. It is objected that on the trial the cost of the ditch in the Kankakee district was not considered. We can not understand why this question should have any bearing upon the issue tried. The trial was for the purpose of determining the fair and equitable proportion of the original cost of the Lake Fork ditch to be borne by the Kankakee district, as well as the cost of enlarging it to carry the additional water flowing into it from the latter district.

An inquiry into the cost of the ditches in the Kankakee district would throw no light on the issue tried.

The law, as held by the court below, being in substantial compliance with the views herein expressed, the judgment of the court will be affirmed.

Judgment affirmed.


author: Wall, J„

text:
    Illinois Central Railroad Company v. Michael Sheehan.

      Railroads—forts of Servants—Liability of Master—Assault upon Passenger—Intoxication—Instructions—Damages.

    1. A railroad company is liable to a person who is assaulted by its employes while sitting in a passenger car, waiting for the train to start, although he has procured no ticket.
    2. The mere fact that a person is intoxicated does not authorize the employes of a railroad company to treat him with personal violence.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Champaign County; the Hon. Jajaes F. Hughes, Judge, presiding.
    Mr. J. S. Wolfe, for appellant.

      Mr. Francis M. Wright, for appellee.
   Wall, J„

The appellee recovered a judgment against the appellant for the sum of §150. The form of action was trespass on the case. The declaration alleged that plaintiff lawfully entered the car of defendant for the purpose of being carried as a passenger from Champaign to Ludlow, and that the agents and servants of defendant ejected the plaintiff, and assaulted and otherwise ill-treated him. The plea was not guilty. It appears from the record that the car in question was attached to and a part of a freight train, and that it usually carried passengers.

This car was standing at the usual starting place and was warmed and lighted. Hot long before the regular time of departure, plaintiff, intending to go to Ludlow, entered the car, and in doing so, pushed with some force against a brakemen, Myer, who was then in the act of changing his clothing. There were angry words between the two men, and there is some dispute as to the language used, but the plaintiff was suffered to come in and take a seat. Two other men, Smith and Carlson, with whom he was associated, and who were also going to Ludlow, had preceded him a few moments, and still another of the party, Bumly by name, came in a moment later. There were several other persons in the car who were also going as passengers. The brakeman, Myer, offended at the previous conduct of the plaintiff, went out and soon returned with the conductor and another brakeman. The conductor, on coming in, asked which were the inen who had forced the door, and Myer pointed out the plaintiff and Smith and Carlson. There is conflict in proof as to the details of what was then said and done, the plaintiff and his friends insisting that they acted wholly on the defensive, and that the train men were the aggressors; but the result of it was that the three men so pointed out by Myer were sharply assaulted and beaten and put out of the car. They were afterward suffered to return and were carried to Ludlow.

By the special finding of the jury it appears the plaintiff was intoxicated when he entered the car and that the entry was made in a violent manner.

The degree of intoxication or violence is not found, and in looking to the evidence on these points it is not easy to determine just how much there was of either. The general verdict of guilty perhaps implies there was not much, and the evidence would justify such a conclusion.

The plaintiff was, no doubt, somewhat uncouth and violent in his manner, and violated propriety to some extent in making his entrance. But his offense of pushing the door against the brake man was rather inadvertent than otherwise, and was a trivial thing which might well have been overlooked. However, it is probable that had the brakeman declined to admit i him on account of his rudeness and his intoxication, there would have been warrant for the exclusion.

After the plaintiff was admitted and took his seat there was no further occasion to object to his presence, except that he was intoxicated. Here arises one of the two points chiefly relied on by appellant in this and in the trial court: that as it is an offense against the State to be intoxicated in any public place, and as plaintiff was intoxicated in this place, which was undoubtedly public, he was not lawfully there, and hence it was lawful to eject him for this cause. While it may be the train men might have properly arrested and taken him before a magistrate on a charge of drunkenness (by virtue of the police authority conferred by statute on the employes of trains and steamboats), yet they were not authorized to inflict personal violence upon him because of what he had done, or of his then condition of intoxication.

It may be also, that if he was intoxicated they might have ejected him, if, after being requested, he had refused to go, using no unnecessary force, and this, even though his intoxication was not such as to render him disagreeable or dangerous at the time, if there was reason to believe that if allowed to remain he would become unfit to be treated as a passenger.

But the jury no doubt believed from the evidence that the action of the conductor and brakemen was inspired, not so much by the then condition of the plaintiff as by his manner of entering the car; in other words, that they intended to correct him for his past unseemly conduct; and as might have been expected on this theory of the case, it appears that after the punishment had been imposed the plaintiff and his friends were allowed to re-enter the car and were carried, on payment, of the regular fare, as far as they wanted to go without objection on account'of intoxication.

The other point urged by appellant is that plaintiff did not occupy such a relation to the defendant as to make it its duty to protect him against the misconduct of the servants of defendant. An argument not wanting in plausibility and citing many authorities is presented in support of this view. We think there is no analogy between the various cases referred to and the one at bar. In this case, the defendant had furnished a conveyance which was prepared for public use and to which the public were invited. It was not necessary that a ticket should be procured in advance or that any other arrangement should he made. It was customary for persons wishing to travel that way to enter and wait until the train started, and when called on, to pay fare or produce a ticket; and while one intending to' so travel might change his mind and leave the car before it started without incurring any liability, yet the defendant owed to all persons entering the car for that purpose a certain measure of duty, for a breach of which an action would lie. It was the duty of defendant to protect the plaintiff while so in the car against the unlawful assaults of the train men, and for such assault the defendant would he liable. This duty is as clear as it would be if one intending to take a train had entered a waiting room to remain until the arrival of the train. There could be no doubt in such a case the company would be answerable for the conduct of its employe in charge of the room. Appellant’s argument rests to some extent upon the proposition that the plaintiff was not a passenger as claimed in the declaration. It is not alleged that he was a passenger hut that he had entered the car to become a passenger, and so is the proof. True, he had purchased no ticket and no express contract of that sort had been made, but he had gone into a place prepared by defendant for public accommodation to be carried to the point desired for the fare to be paid. It would not be admissible that the servants of defendant in charge of the car could maltreat.him without liability on the part of defendant simply because no express contract of carriage had been entered into. There was, however, a conditional offer to carry implied by the circumstances which plaintiff accepted by going to the car, and thus an implied conditional contract arose between the parties.

The action of the court in giving and refusing instructions is pressed as ground of reversal. The points made in this regard are in substance those already noticed. After carefully examining 'the various instructions we are satisfied with the ruling of the court. Those given embody what we deem correct principles as applicable to the facts, and those refused so far as not embraced in those given are unsound or properly refused because there is no evidence on which to predicate them. It is not necessary to discuss all these in detail and we need only say that, in our opinion, the jury were well advised as to the law of the case.

The evidence, though conflicting in some particulars, is sufficient to support the verdict, and"we find no good reason to disturb the judgment, which is therefore affirmed.

Judgment affirmed.

I. C. R. R. Co. v. Jas. Smith.

Wall, J. This case is in its facts like the case of I. C. R. R. Co. v. Sheehan, except that there was no finding that plaintiff entered the car in a violent manner, and that the verdict is for $100. The judgment will be affirmed. ,

Judgment affirmed.

I. C. R. R. Co. v. Oscar Carlson.

Wall, J. This case is like the case of I. C. R. R. Co. v. Smith, in its facts and in the findings of the jury, though the verdict is for a different sum, $25. The judgment will be affirmed.

Judgment affirmed.


author: Conger, P. J.

text:
    Chicago & Eastern Illinois Railroad Company v. Alice Tilton.
    Railroads— Highway Crossing— Negligence — Obstructions — Instructions.

    1. There is a distinction between acts of negligence that maybe declared by the court as matter of law, and such as must be found by the jury. When the standard of duty is fixed and invariable under all circumstances, its omission is negligence and may be so declared by the court.
    2. In an action against a railroad company to recover damages for an injury caused by a collision át a road crossing, it is proper to instruct the jury that it is negligence on the part of a railroad company to suffer hedges or trees to grow upon its right of way to such a height as materially to obstruct the view at road crossings.
    3. The court may state what obstructions are unlawful, but the jury must determine whether the obstructions in question are such as are prohibited.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of "Vermillion Comity; the Hon. J. W. Wilkin, Judge, presiding.
    On petition for re-hearing.
    Messrs. William Armstrong and J. B. Mann, for appellant.
    Messrs. H. M. Steely and F. Bookwalter, for appellee.
   Conger, P. J.

A petition for re-hearing has been filed in this case [26 Ill. App. 362,] in which it is insisted that the reasons given in the opinion filed in this cause for condemning the eighth of appellant’s instructions apply with equal force to the first and second instructions given for appellee; that it is invading the province of the jury as much for the court to tell them as matter of law that “a railroad company has no right to permit or suffer a hedge-row, trees or anything else to grow upon or overhang its right of way to such a height as to materially obstruct the view of a highway or street crossing,” as to tell them it is negligence in one attempting to cross a railroad track, not to stop and listen and look for approaching trains.

Upon a careful re-consideration of these instructions we are of opinion there is a clear distinction between them, and that the first announces a correct principle, while the eighth does not.

Acts of negligence that may be so declared by the court, as matter of law, and such as must be found to be so by the jury, are clearly distinguishable.

The rule is well stated in Westchester & Phil. R. R. Co. v. McElwen, 67 Pa. St., where it is said: “The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury, and not for the court. It is always a question for the jury, when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is not fixed, but variable. Under some circumstances a higher degree of care is demanded than under others, and when the standard shifts with the circumstances of the case, if is in its very nature incapable of being determined as matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is defined by the law and is the same under all circumstances, its omission is negligence, and may be so declared by the court. And so when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, when both the duty and the extent of its performance are to be ascertained facts, a jury alone can determine what is negligence and whether it has been proved.”

In Wharton’s Law of Negligence, Sec. 420, it is said: “ The question of negligence is one of mingled law and fact, to be decided as a question of law by the court when the facts are undisputed or conclusively proved, but not to be withdrawn from the jury when the facts are disputed and the evidence conflicting.” See Thompson on Negligence, Yol. 2, p. 1236.

For a railroad company to suffer hedges or trees to grow upon its right of way to such a height as to materially obstruct the view at a public road crossing, we think is negligence, and it may be so asserted by an instruction. It is a fixed condition, not depending upon the particular circumstances of each case, but always and under all circumstances increasing the danger to those attempting to cross the track. The duty of the company to prevent such obstructions is always the same, and hence the omission of such a duty is always negligence.

Nor does this rule do violence to the general proposition that when the standard of duty varies with the circumstances of each case, the question of negligence is for the jury, and not for the court.

In the case at bar the court was authorized to instruct the jury, as matter of law, that appellant had no right to suffer a hedge row to grow upon or overhang its right of way to such a height as to materially obstruct the view at a street c r road crossing; hut whether there were obstructions of the character indicated by the instructions, would be a question of fact for the jury. The character of obstructions alleged to be upon the right of way, and whether they did or did not materially obstruct the view, would vary with the changing circumstances of each particular case, and hence the jury, and not the court, must determine in each case whether they were forbidden by the rule of law given them by the court.

While our statute has not declared such obstruction to be unlawful, the Supreme Court, in a number of eases has; and we apprehend these repeated rulings have fixed the duties of railroad companies in reference to this subject as conclusively as an act of the Legislature would have done. O. & M. Ry. Co. v. Clutter, 82 Ill. 123; Ind. & St. L. R. R. Co. v. Smith, 78 Ill. 112; Dimmick, Adm’r, v. C. & F. W. R. R. Co., 80 Ill. 338; C., B. & Q. R. R. Co. v. Lee, Adm’r, 87 Ill. 454; R. R. I. & St. L. R. R. Co. v. Hillmer, 72 Ill. 235.

In the Clutter case, supra, an instruction that it was negligence on the part of .the railroad company to permit grass or weeds to grow on its grounds so as to obstruct the view of the engine driver,” was approved and declared to embrace a correct principle.

As to the second of appellee’s instructions, we do not desire to enlarge upon what was said in reference to it in the opinion. We then said that it could only be understood by the jury as applying to the question before them as to whether the train of appellant was running at a greater rate of speed than allowed by the ordinances.

The re-hearing will be refused.


author: Wall, J.

text:
    Edward Wilson, Conservator, v. Magdalena Scovel et al.

      Promissory Note—Bill Toy Conservator to Restrain Collection of—Mental Incapacity.

    Upon a bill filed by the conservator of the payee of a promissory note to restrain the collection of a judgment thereon in favor of the assignee, on the ground that ihe assignment was void because of the mental incapacity of the assignor, this court affirms the decree of the court below dismissing the bill.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Fulton County; the Hon. John C. Bag-by, Judge, presiding.
    Messrs. D. Abbott and H. W. Masters, for appellant.
    Messrs. Barreré & Grant, for appellee.
   Wall, J.

This was a bill in chancery by appellant as conservator of Sarah Littlejohn to restrain the collection of a judgment obtained by appellee Scovel against appellee John Littlejohn, upon a promissory note payable to said Sarah Littlejohn, which note appellee Scovel claimed had been assigned to her.

The chief question was whether at the time of the alleged assigment the payee of the note was in such a mental condition as to be able in law to dispose of the note. Collateral questions were as to the consideration involved and as to the bona fides of the transaction so far as the assignee was concerned.

The Circuit Court, upon a hearing, dismissed the bill and rendered judgment for costs accordingly.

After carefully considering the evidence as it is preserved in the record we find no sufficient reason to disagree with the conclusion so reached, and the decree will, therefore, be affirmed.

Decree affirmed.


author: Cosgeb, P. J.

text:
    Edward Handy v. The People of The State of Illinois.

      Dram Shops — License — Payment “ in Advance” — Quo Warranto — Amendment of Information—Statutes—Remittitur.
    1. Under the act of 1883, a valid license to keep a dram-shop can not be issued unless the amount payable therefor be paid in advance for the entire period covered by the license.
    2. An information in the nature of a quo warranto lies to question the right of a dram-shop keeper to exercise the franchises, privilege and license to keep a dram-shop under a license unlawfully issued.
    3. Such an information may he amended. ■
    [Opinion filed May 29, 1888.]
    Appeal from the Circuit Court of Sc.ott County; the Hoa. George W. Herdman, Judge, presiding.

      Messrs. Oscab A. DeLevw and James Cai/laits, for appellant.
    What is meant by the words “ not less than at the rate of §500 per annum?” Webster’s definition of the word “rate” is “ the proportion or standard by which quantity or value is adjusted”—“ Degree in which anything is done ”—“ .Degree of value, price.” The word “ratably” he defines “by rate or proportion—proportionally.” We contend that these words are so used in order to enable the municipal authorities to control the divisions of time wdien payment in advance for such license must be made, but that in the exercise of such power they are limited to the amount of not less than §500 per annum. In Dennehy v. City of Chicago, 120 Ill. 634, 635; the court say, after reciting the clause of the act of 1883, just quoted, “ This proviso * * * simply affects the manner and condition of its exercise, and was manifestly designed only to produce uniformity as to the mode of granting licenses and the terms upon which they shall be granted to the extent that the general law assumes to establish uniformity in those respects.” Again, contemporaneous construction of this stat" ute by the local municipal authorities, sustains the reasoning here made. If the construction claimed by the people should be the true one, it would revolutionize the uniform system of ' all the local municipal authorities in this State in exacting the license fee by fractions in advance. The general law of this State delegates the whole subject and question of licensing, regulating and prohibiting the sale of intoxicating liquors to the cities, towns and villages, provided, that in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses. See Sec. 46 of the general incorporation act. And it is needless to quote or multiply authorities showing that the Supreme Court has liberally construed this clause of the general law.
    It is admitted by this record that Handy paid his money for his second quarter’s license, and, although the village authorities tendered him back his said §125 for the second quarter’s license, in controversy, yet they at no time revoked his license. It may be that the village authorities are vested with the power to revoke these licenses, but it has not been done in this case, and this is expressly made necessary before he can be proceeded against. Martel v. East St. Louis, 94 Ill. 67; Baldwin v. Smith, 82 Ill. 162.
    Again, the court granted leave to amend this information. This, we claim, is error. We are aware of the case of Hinze in 92 Ill. 406, and also in the Shufeldt case, 93 Ill. 597, but we do not think the statute of amendments and jeofails was there brought to the attention of the court, section 11 of which expressly provides that no part of the act should apply to in-formations, upon any popular or penal statute. This is clearly a penal statute, because in addition to the judgment of ouster a fine is imposed. People v. Waite, 70 Ill. 25; Commonwealth v. Chuly, 56 Pa. St. 270; Rex v. Parry, 6 Ad. & Ellis 810; Brightly’s Leading Election Cases, p. 144; People v. Moore, 73 Ill. 132; People v. North C. Ry. Co., 88 Ill. 537; Dillon’s Mun. Corp., Vol. 2, Sec. 722; High’s Ex. Rem., Sec. 628; State v. Mead, 56 Vt. Rep. 353.
    Mr. J. M. Bciggs and Mr. Thomas H. Devise, State’s Attorney, for appellee.
    The fee should have been paid in advance for the whole time, and not having been so paid, the alleged license was a nullity. Munsell v. Temple, 3 Gilm. 95; Lombard v. Cheever, 3 Gilm. 472; Spake v. The People, 89 Ill. 621.
    The third count in the information was framed to meet the theory that the license fee having been paid three months in advance at the time the license was issued, the defendant was entitled to the privilege of keeping a dram-shop for that period of time. We do not agree to that theory, but even if its soundness be conceded, at the end of that time the license ceased to have validity, because after it was issued, as is conceded by the stipulation, the- president and trustees of the village took no further steps in regard to the matter, and wdthout official action on their part, the clerk or treasurer, or both together, could not do anything which would operate as an extension of appellant’s privilege, or be equivalent to a renewal thereof. Under a provision in a special city charter, similar to the clause of the cities and villages act, relative to intoxicating liquors, the Supreme Court have decided that only the city council can determine the issuing of liquor licenses, and that the issuing thereof can not be delegated to the clerk or treasurer. East St. Louis v. Wehrung, 50 Ill. 31; Bibel v. People, 67 Ill. 175; Kinmundy v. Mahan, 72 Ill. 464.
    Counsel for appellant say the general law of this State delegates the whole power of licensing, regulating and prohibiting the sale of intoxicating liquors to cities, towns and villages. And so we say; but in exercising the delegated power they must regard the positive limitations imposed by the Legislature, and as between the people and appellant the village authorities had no more power to waive payment in advance than they had to waive the statutory bond required by the dram-shop act; and it is well settled that they can not waive that bond, and a license issued without requiring a bond to be first executed as provided by statute is void from the beginning. The State v. Henshall, 5 Chicago Legal News, 566, 567; Lombard v. Cheever, 3 Gilm. 472, 473.
    The Henshall case, just cited, was decided by the Supreme Court of Wisconsin upon a statute substantially like ours in its provisions relative to giving bond. However, it might be in a controversy between the village and appellant, if they should knowingly issue a license to him and take his money therefor without first requiring a proper statutory bond, as between him and the people, such license would be void db initio, and being thus void no order of revocation is neces-arv; and the cases of Martel v. East St. Louis, 94 Ill. 67, and Baldwin v. Smith, 82 Ill. 162, cited by appellant’s counsel, are not pertinent. The licenses in those cases were not void from the beginning—on the contrary they were held to be valid.
    Counsel say he is protected from criminal prosecution in this case, under the circumstances, even if no formal license had issued; and to this point they cite Prather v. People, 85 Ill. 36. That case has no application here. It is not a criminal prosecution to impose a penalty for unlawfully selling intoxicating liquors. There is no question of criminal intent involved in the case at bar. It is a civil proceeding instituted for the sole purpose of ascertaining whether appellant’s alleged license is valid. That it is a civil proceeding, although the information is criminal in form, is decided in Ensminger v. People, 47 Ill. 387, which, so far as we know, is the latest expression of our Supreme Court on that point. The Legislature has designated it a civil proceeding in the 7th section of the chapter on quo warranto.
   Cosgeb, P. J.

This is an appeal from a judgment of the Circuit Court of Scott county, Illinois, in which the people recovered judgment of ouster and a fine- of §100 and costs against the appellant, upon an information in the nature of a quo warranto, charging the appellant with usurping and unlawfully exercising the franchise, privilege and license to keep a dram-shop within the incorporated limits of the village of Bluffs, in the county of Scott and State of Illinois.

The cause was heard and determined by the court below, and judgment rendered upon the following stipulated and agreed state of facts, viz.: 66 That no plea or answer need be

filed to counts two and three of the information (a demurrer having been sustained to the first count), and

“L It is admitted that the village of Bluffs was and is incorporated under the general law, as charged in counts two and three of the information.

“2. That the ¡resident and trustees of said village did issue a license to the defendant, Edward Handy, as charged in said counts.

“ 3. That before said license was issued the sai_d Handy executed his bond to the people of the State of Illinois, in the penal sum of §3,000, with four good and sufficient sureties, freeholders of said Scott county, dated June 20, 1887, which was filed with the village clerk and approved by said village of Bluffs, and was conditioned as provided by Sec. 5 of the dram-shop act.

“4. That the record of said village of Bluffs, showing the action of said president and board of trustees of said village, of date May 16, 1887, is as follows: A motion made and carried that the petition and bond of Edward Handy for dram-shop license be received and accepted, and clerk to issue license, money to be paid in advance, no note and security be taken; so instructed by the board of trustees and president; his security and bondsmen being the following named persons: John Torrance, John Tieman, John E. Bagby and Herman Vanneer.

5. That the license so issued by said village of Bluffs, and the indorsements thereon, are in the words and figures following, to wit:

“Bluffs, June 20, 1887.
“ Granted to Edward Handy, dram-shop license for ten months, from June 20, 1887, till April 20, 1888, and said license payable three months in advance. Eeceived of Edward Handy the sum of one hundred and twenty-five dollars ($125) for the first quarter, commencing June 20, 1887, and ending September 20, 1887; second quarter due September 20,1887; third quarter due December 20, 1887, being four months till April 20, A. D. 1888.
“ H. A. Bruno,
Village Olerlc.
“ Corporate seal of the Village of Bluffs.
“August the 6th, 1887.
“Eeceived of Edward Handy one hundred and twenty-five dollars ($125) for second quarter, commencing September 20, 1887, and ending December 20, 1887.
“ 6. That the sum of $125 was paid by defendant for said license on the day it was issued, and accepted by said village, and three months thereafter, without any further order or action of said board of village trustees, the defendant paid $125 to the village clerk, who receipted him therefor and paid the same over to the village treasurer; but afterward the village board, to wit, on the 22d day of September, 1887, caused the same to be tendered back to the defendant, who refused to receive it and has not yet received it. That no order revoking said license has been made by said village board-That said defendant has kept a dram-shop within the corporate limits of said village, and therein has sold all kinds of intoxicating liquors at retail in less quantities than one gallon, from the date of said license doxvn to and including the day on which this proceeding xvas begun, and claimed the right so to do under the license aforesaid and none other, and now claims said license is a valid license to keep a dram-shop as aforesaid. That the bond so made by said Handy has not been surrendered or tendered back to him.
7. That the village had, before May 16, 1887, exercised the powers conferred on it by law, and passed an ordinance allowing dram-shops in said village, which was then, and continued to be, and is now in force. The sum to be paid for license therefor, in advance, to be §500, at the rate of §500 per annum.
66 8. That the defendant reserves the right, as he did on demurrer, to question the right to pursue this remedy against him, claiming that quo warranto does not lie.”

The errors assigned upon the record are:

1. The court below erred in granting leave to amend the information.

2. The court erred in imposing a fine on' defendant.

3. The court erred in rendering the judgment of ouster.

The first error is not well assigned. Sec. 9 of Chap. 7, R, S.; Hinze v. The People, 92 Ill. 414.

The fine of one dollar which was imposed upon the defendant by the trial court has been in this court remitted, which disposes of the second assignment of error.

The real question in the case is the proper construction of See. 1 of the act approved June 15, 1883, Sess. Laxvs, page 92, the language of which, so far as necessary to notice, is as follows : “ That hereafter it shall not be laxvful for * * * any village in this State to grant a license for the keeping of a dram-shop, except upon the payment, in advance, into the treasury of the village * * such suin as may be determined by the authorities of such * * * village, not less than at the rate of five hundred dollars per year.” Session Laws 1883, p. 92.

This language, xve think, can admit of but one construction, and that is, the proper authorities can not issue a valid license to keep a dram-shop unless the amount to be paid therefor be paid in advance for the entire period covered by the license, not less than at the rate of five hundred dollars per year.

The minimum rate per annum is fixed, and whether the license issue for a year or any shorter period, the amount required to be paid for such term as is covered by the license must all be paid in advance. If it may be in installments of three months, with equal propriety it could be divided into weekly or even daily payments, and thereby entirely defeat the object of the law, which was to require the license money to be paid in advance for and during the life of the license.

It is also urged that an information in the nature of a quo warranto will not lie in a case like the present. This objection is not well taken. See Swarth v. The People, 109 Ill. 621.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Per Ouriam.

text:
    William B. McKinley et al. v. Charles L. Smith, Receiver, et al.

      Fixtures—Personalty—Modification of Decree.

    In a controversy between creditors of an insolvent manufacturing company as to which of certain machines were fixtures, this court having previously reversed the decree of the court below in part and remanded the cause for further proceedings, now declines to interfere with the decree as modified.
    [Opinion filed June 26, 1888.]
    In ekroe to the Circuit Court of Champaign County ; the Hon. O. B. Smith, Judge, presiding,
    Mr. Henkt M. Beaedsley, for plaintiff in error.
    The record shows that prior to December 29, 1883, the company had been a tenant on the land which on that day it bought of Beardsley and Harbison. Having been a mere tenant, the property described in the trust deed as chattel had been up to that time considered by all as chattel. It could not have been the intention of the parties that these chattels should became fixed to the realty so as to become part of it, and the landlord thus acquire title to it. When the land was bought and a deed for it obtained, it was then competent for the company to elect to consider these chattels as fixed or not. It made the mortgage naming them still as chattels. So, in fact, they never bee me part of the realty. The courts of Blinois have held constantly, that the intention of the parties is the one matter to which they will first look to determine the character of property in this class of cases. Jones v. Ramsey, 3 Ill. App. 303; Smith v. Moore, 26 Ill. 392; Kelley v. Austin, 46 Ill. 156; Arnold v. Crowder, 81 Ill. 56; Ballou v. Jones, 37 Ill. 95.
    The ease of Eaves v. Estes, 10 Kas. 314, was an action of replevin to recover possession of a steam engine, manufactured by Estes & Co. for Koehler. Before the engine Avas removed by Koehler to his mill he executed a chattel mortgage upon it. Prior to the placing of the engine in the mill, the mill and lot on which it Avas built were mortgaged. This mortgage was aftei'Avard foreclosed and the property purchased by Eaves, the defendant, who_ claimed the property as part of the realty. Kingman, C. J., in delivering the opinion of the court, said: “Under the light of the adjudicated cases, and having no regard to the terms of the chattel mortgage, it may well be doubted Avliether it ever becam j part of the realty as between vendor and vendee. See Walker v. Sherman. 20 Wend. 686, etc. * * But Avhen we consider the purpose of the parties as evinced by the mortgage, to make the engine retain the character of a chattel, regardless' of the manner of its attachment to the mill, and as the mortgage violated no principle of laAV, wrought no injury to the rights of others, and was in the interest of trade, Ave have no doubt that the engine continued to be personal property. "* * * In this ease the parties have declared that the engine shall retain its character of personalty; and the facts in the case do not overcome the inference drawn from the contract. It is not an inference drawn solely from the relation of the parties, or the nature of the estate, but a positive stipulation made by the parties. The intent is not inferred from facts or left in doubt.”
    The deed of trust is clearly a chattel mortgage. It describes the separate pieces of machinery, etc., says that they are situated upon-certain real estate, provides for possession to be retained by the itiortgagor until a failure to pay, provides that the mortgage is to be renewed from time to time during the life of the debt so that it shall be at all times a valid first lien on such chattel property, and provides for possession and public sale by the trustee in case of a failure to pay.
    The court below should have modified its former decree as directed. It should have found that all of the property named in the deed of trust under the head of “ machinery and chattels,” was, as between the parties before this court, chattel property, and that these plaintiffs in error have a first lien on all of said property under the deed to secure them for the moneys advanced upon the credit of the security offered by the deed.
    Mr. J. L. Eat, for First National Bank and H. H. Harris, defendants in error.
    In a manufacturing establishment where land and building are owned by the manufacturer and where machinery is permanent in its character and essential to the purpose for which the building is occupied it must be regarded as realty and passes with the building. Whatever is essential to the purpose for which the building is used will be considered as a fixture, although the connection between them be such that it may be severed without physical or lasting injury to either. Green v. Phillips, 26 Gratt. (Va.), 752; 21 Am. Rep. 323; Brennan v. Whittaker, 15 Ohio St. 446; Laflin v. Griffiths, 35 Barb. 58; McRea v. Central Nat. Bank, 66 N. Y. 489; Pierce v. George, 108 Mass. 82; Parsons v. Copeland, 38 Me. 537.
    As between mortgagor and mortgagee of a large brick building, certain boilers, engines, shafting and steam pipes for heating purposes, the latter fastened along the walls with wrought-iron spikes, were held to be a part of the realty, although called personal property in a deed and bill of sale to the mortgagor. Quimby v. Manhattan Cloth, etc. Co., 24 N. J. Eq. 260.
    In a late case in Massachusetts a contest arose where the owners of a machine shop had mortgaged the real estate to one party and mortgaged the machinery in the building to another as “personal property.”
    It was held that “such machines and their appurtenances as were specially adapted to be used in the shop and were annexed to it, passed by the mortgage of the real estate,” and that, too, when it appeared that the machines might be removed without injury to the building. Pierce v. George, 108 Mass. 78.
    Other articles, which appeared not to be essential parts oE the shop, were held to be personal, and went to the mortgagee of the personalty.
    And where such machinery was leased to the mortgagor, and he placed it in the buildings and mortgaged the property, the machinery, although the property of another, passed under the mortgage of the realty to the mortgagee. Fryatt v. Sullivan Co., 5 Hill, 116.
    These authorities show that the key to the solution of these questions is, “Were the fixtures essential to the enjoyment of the freehold? were, they part of one plant and factory? are they needed to make a complete factory ? ” And further, in such contests the “fixed” machinery of a factory or machine shop always goes with the realty.
   Per Ouriam.

This is a controversy between certain creditors of the insolvent Champaign Sugar Company, who intervened by petitions herein and presented their claim before the special master. The decree of the Circuit .Court having been affirmed in part, reversed in part and remanded for further consideration and modification according to the opinion of this court [McKinley v. Smith, 25 Ill. App. 168], the only question upon this appeal is whether the modification made is in accordance with that opinion.

We found and held that Harris and the bank, by virtue of their respective judgments, had acquired the first lien on the real estate, including fixtures, described in the trust deed of the company to Langley, but not upon the personal property therein mentioned, for the reason that execution had not been taken out on said judgments or either of them, and that certain other creditors had the first lien on-said personal property. We said: “Question is made as to what was personal property and what fixtures. Consisting of machinery used in connection with the building, it is difficult for us to determine, from the evidence in the record describing the several items, how to classify them. We are inclined to think the master’s findings in reference to them, approved and adopted by the decree, were not correct in some instances, the fanning mill, for example, and perhaps others. But we see no inequity in holding everything as personalty that was declared by the deed to be such, as against the judgments—not because the deed is at all operative as an incumbrance prior to the judgments, but because Harris .had thereby recognized those articles and machines as personal property. The intention of the board, thus manifested, to treat them as such, ought certainly to be regarded as a very weighty, if not a controlling circumstance in fixing their character.”

This was the matter in respect to which the decree was to be modified. Upon further hearing the Circuit Court found that the deed does not distinguish fixtures and personal property,. nor specifically declare the character of any item therein mentioned with reference to their distinction. It was not before the writer of the opinion when the passage above quoted was written, but he assumed, from the reiterated statement in the brief of counsel, without any distinct recollection of his own to the contrary, that it did so distinguish and declare. Thus, on page 21 the statement that “ the property described in the trust deed as chattel property, is such in fact, and not a part of the realty” is italicized. On page 24 it is said that, “ having been a mere tenant, the property, described in the trust deed as chattel had been to that time considered by all as chattel,” and that the tenant, after becoming the owner, “ made the mortgage (trust deed), naming them still as chattels.” On page 29 : 66 The parties advancing money then, and accepting of the bonds as collateral, did so understanding that the judgments were not, and were not to be made liens on that which, in the deed, with reference to which all parties made their agreement, was nominated as chattel.” All this was said of specific items of property, and was asserted throughout the brief on that subject, as if it were not questioned, and as estopping Harris, who was a member of the board, and also the bank which he represented. Doubtless this was the belief of the counsel, to which he still adheres; but it was matter of construction and inference only.

The language of the deed is as follows, after the description of the lot: “And the following described machinery and chattels, to-wit: two three-roll four-foot cane mills and gearing, and cane and bagasse carriers connected therewith; one one hundred horse power engine used for propelling said mills; six steam boilers; five open defecators and their copper coils ; two closed defecators and their copper coils; two evaporators and their copper coils ; seven bone-black filters; one vacuum pan and one vacuum pump; one hundred crystalizing cars; five centrifugals and gearing and mixer; one engine used for propelling the same ; fourteen iron tanks ; 30,000 pounds bone-black ; one bone kiln; four steam pumps ; one blower; all shafting and pulleys, belts, piping and valves. All of said property being situated upon the property above described.” This is all that is to be found therein from which to determine what was considered by the parties to be personal property, and what, if any, fixtures. The order of the board on which the deed was prepared, and which is quoted in the opinion, certainly shows they considered some of these articles fixtures.

We think, with the court below, that while the deed imports that some may be or are chattels, it does not declare all, or any of them specifically, to be such, and therefore leaves the character of each to be determined by proof aliunde.

The special master, as directed by the order of reference, reported the proofs and his conclusions thereon, and found that all the engines, cane' mills, mixers, gearing for centrifugals, filters, the bone kiln, vacuum pan, steam pipes, shafting, hay scales and all machinery used about the sugar house, except defecators, copper coils for same, evaporators, copper coils for same, steam pipe connecting same, two wooden juice tanks, two wooden water tanks, fourteen iron tanks, two wooden iron-lined tanks, seven iron filters, one hundred crystalizing cars, one juice pump and one hot water pump, are attached to and part of the real estate, and this finding was approved by the court below. We thought it evidently erroneous as to the fanning-mill, and not improbably so as to some other articles; but to us much of the machinery mentioned was unfamiliar, and the testimony in regard to its attachment to the building or soil, and its use in the process of making sugar or syrup, not entirely clear; while the master and chancellor, being on the ground, were in better condition to understand and appreciate it. Therefore, since the decree was certainly to be modified as to the fanning mill, we desired the court to reconsider it as to the other articles, and especially with reference to the weight to be given to the supposed characterization of them by the deed of trust. This has now been done, and on such reconsideration upon the evidence, including said deed, and further argument of counsel, the chancellor has seen no sufficient reason for modifying his original findings except as to the fanning mill; and, while the law is difficult of application as to some other of these articles, we are not prepared to hold he has erred in respect to them.

The decree, as modified, will therefore be affirmed.

Decree affirmed.


author: Wall, P. J.

text:
    James W. Tufts v. Susan Johnson.

      Replevin—Conditional Sale—Declaration—Matter of Defense.

    In an action of replevin brought by the vendor of a soda water apparatus for a forfeiture under a contract for a conditional sale, the court below improperly sustained a general demurrer to the declaration, which sufficiently states a cause of action.

      [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Cbeighton, Judge, presiding.
    Action of replevin. Demurrer to declaration, which was sustained as to two counts thereof.
    The two counts of the declaration to which demurrer was sustained, allege that appellant delivered to Fleury Medicine Company (now Fleury and Company) one soda-water apparatus and founts upon a conditional sale, taking therefor a series of notes, all of which contained a provision that the title should remain in Tufts until all the notes were paid, and allowing Tufts to retake possession for non-payment of notes at maturity, setting out one of said notes in haee verba. That certain of said notes had become due and payable and remained unpaid, and that appellant was therefore entitled to the possession of the apparatus and founts. One of the counts alleges that the defendant, Susan Johnson, well knowing that Tufts had claim and title to said property, colluded with Fleury and Company, and received from them a bill of sale to said property, and took possession of the same, which was without a valuable consideration, and done by the said Fleury and Company for the object and purpose of defrauding the plaintiff.
    The other count alleges that the defendant herein, well knowing that the plaintiff had claim and title in and to the said apparatus and founts above described, then and there negotiated with and received from the said Fleury and Company, by purchase, the said apparatus and founts, and refused to deliver the same upon demand. A general demurrer having been interposed and sustained to these counts, the plaintiff withdrew the other counts and judgment was rendered against him for costs.
    Messrs. Oeendobef <fe Patton, for appellant.
    Messrs. John C. Snigg and John M. & John Mato Palmee, for appellee.
   Wall, P. J.

The only question is, whether the fourth and fifth counts were obnoxious to a general demurrer. It is not controverted that upon the substantial facts alleged, the plaintiff had the right to retake the property as against the vendee or any one holding under him with full notice of the plaintiff’s rights, and this, it is said by appellant, and we presume correctly, was the point involved and discussed on the argument of the demurrer.

Appellee insists, however, that the declaration fails to show that, at the commencement of the suit, the situation alleged by the pleader still continued. In other words, while plaintiff alleged that on a day named he was, by reason of the non-payment of certain overdue notes, entitled to resume the property which “defendant unjustly detained and refused to deliver to plaintiff, though requested so to do, until, etc.,” still it did not appear but that the notes were paid before suit was commenced, thereby cutting off the rights of the plaintiff. This very technical objection, if a valid one, should hardly vitiate a declaration upon a general demurrer, and we may safely assume under our present practice that if suggested below it would have been obviated by amendment. We are not satisfied, however, that it is really valid, even upon the reasoning of the brief.

It appears default in payment of the notes at maturity terminated ipso facto the rights of the vendee; that there was such default, and therefore plaintiffs had the right to retake, which state' of things continued “until, etc.,” meaning until plaint filed. If, after default, the plaintiff waived or accepted payment, or if any facts occurred which would in law prevent him from asserting the forfeiture, it should be set up by way of defense. We are of opinion it was error to sustain the demurrer. The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: GojS'gbr, J.

text:
    The People ex rel. Abraham Brokaw v. Commissioners of Highways.
    Highways—Obstructions—Remedies—Mandamus—Statutes.
    This court affirms the judgment of the court below, sustaining a demurrer to a petition for a writ of mandamus to compel commissioners of highways to remove an obstruction in a highway, the statutory remedies being complete and effective.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding. .
    Messrs. James S. Ewing and James S. Seville, for appellants.
    The commissioners of highways permitted a party to build a fence across said road, and have persistently refused to cause said obstruction to be removed; and though notified in writing by appellant to act in the matter, absolutely refused to take any action with reference to the road whatever.
    It is conceded by the demurrer to the petition that appellees refused to perform any part of their duty; not only that, but lent the sanction of their permission to the violation of the law.
    The question here involved is different from that made in the County of St. Clair v. The People ex rel., 85 Ill. 396, and Commissioners, etc., v. The People, 66 Ill. 339, or any other case decided in this State.
    We can readily understand how mandamus might not be the proper remedy Ci to remove the obstructions of long standing, maintained as a matter of right by land owners, and believed by the right authorities not to be in the limits of the highway;” but how it could be said it is not the duty of the highway commissioners to keep the' public roads free from obstructions under all the provisions of the law above referred to, we are unable to understand.
    Messrs. Tiptoe & Beaver, for appellees.
    “ When an indictment will lie for obstructing a public' highway, and will afford a remedy convenient, beneficial and effectual in its nature, as a mandamus to compel the opening of the highway, a mandamus will not be awarded,, and when it appears that a highway has been obstructed, after having been opened and traveled by the public, the proper remedy is by a prosecution, under'the statute, against the party causing the obstruction, and not by mandamus to compel the commissioners of the highways to remove the obstruction and -open the road.” Commissioners Town of Hale ex rel. v. Welch, 73 Ill. 204.
    And to the same effect see People v. Curyea, 16 Ill. 547; People ex rel. Kloppe, 92 Ill. 138; Kloppe v. Stanley, 190 Ill. 197; Hyde Park v. Thatcher, 13 Ill. App. 616; Commissioners v. People, 2 Ill. App. 27; People v. Dulaney, 96 Ill. 512; People v. Village of Crotty, 93 Ill. 186; Trustees v. Kay, 8 Ill. App. 32; Mulliner v. Brownson, 114 Ill. 512; Commissioners v. People ex rel. Brokaw, 19 Ill. App. 253; S. C., 118 Ill. 339.
    The court in cases of mandamus may, in its discretion, refuse to grant the writ when the effect of granting the same will throw on the public the burden of repairing the road, which may be of little or no benefit to the public, and of peculiar benefit to the land owner or land owners along the line.
    In the case of Supervisors v. People, 16 Ill. App. 309, the court say: “ The right of the party asking for a writ of mandamus must be unquestionable. That this is the settled law is beyond controversy. Green v. The People, 45 Ill. 225; County of St. Clair v. The People, 85 Ill. 396; People v. Town of Clayton, 88 Ill. 44; People v. Davis, 93 Ill. 133.”
    While it is true that they are not bound to show that they have no other remedy, yet it must be the law, that a man, under the statute, broad and liberal as it is, can not bring mandamus on all occasions, but must show a proper cause for
      mandamus under the decisions, and unless he does so he is not entitled to the writ, and the court will consider the question whether or not there are other and better remedies open to him.
   GojS'gbr, J.

This was a petition for a writ of mandamus to compel appellees to remove an obstruction placed across a highway. A demurrer was sustained to the petition and it was dismissed.

It is averred in the petition that some one had built a stake and rider fence across a public highway that had been opened and in use for more than twenty years, and that as petitioner was informed and believed, such fence had been placed there by the permission of appellees.

Under such circumstances the relator had a remedy complete and effective either by virtue of Secs. 221 and 222, Chap. 38, where a fine of 8100 is provided and the nuisance shall be abated by the sheriff, or the ordinary penalty provided for obstructing highways to be found in road and bridge act. Corns., etc., v. The People, etc., 73 Ill. 203.

The judgment of the Circuit Court will he affirmed.

Judgment affirmed.


text:
    City of Champaign v. Ursula Forrester.

      Municipal Corporations—Nuisance—Improper Use of Sewer—Ordinance—Resolution—Evidence—Instructions.

    1. In an action against a municipal corporation to recover damages caused by the improper use of a sewer having its outlet through a ditch in the street in front of the plaintiff’s premises, it is held: That, the court below properly admitted a certified copy of a resolution oE the city council authorizing such use in violation of an ordinance, as evidence to show that the city knowingly permitted and assented to such violation of the ordinance ; that the defendant is liable for permitting and authorizing such improper use of the sewer ; and that there was no error in giving and refusing instructions.
    2. A municipal corporation is liable to the head of a family for damages caused by an improper use of a sewer in violation of an ordinance, which it not only permits but authorizes.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Champaign County ; the Hon. J. F. Hughes, Judge, presiding.
    Mr. E. L. Sweet, for appellant.
    Messrs. Eat & Slauson, for appellee.
   Wall, P. J.

The declaration alleged in substance that the city had control of a certain sewer which was constructed solely for the purpose of carrying water from certain streets, and that it was its corporate duty to so control and manage the sewer as to inflict no injury upon the plaintiff, yet that the city did knowingly authorize and permit divers persons and owners of property adjacent to said sewer and to other sewers emptying therein, to connect therewith and drain into it divers privies and cess-pools, in violation of the ordinances of the city, whereby filth was carried into an open ditch in the street in front of the premises owned by the plaintiff and occupied as a dwelling house, causing the air to become laden with foul odors, and producing annoyance, discomfort and injury to plaintiff and her family, and rendering the premises unwholesome and unfit for occupancy. The plea was not guilty. The case was tried by jury and there was a verdict for plaintiff, assessing damages at $425. From the judgment entered upon this verdict an appeal is prosecuted to this court.

It is urged that the court erred in admitting in evidence a certified copy of a resolution of the city council permitting the “ Carter House, ” a hotel, to connect its privy and cesspool with the sewer. It is argued that the city is not liable for a failure to prosecute those who violate its ordinances, and that it could not by a mere resolution give legal authority to violate the ordinance which prohibited making such a connection with the sewer, nor could it repeal the ordinance by such means.

It is not necessary to assume that the resolution had such effect in order to make it competent.

It was clearly admissible for the purpose of proving the allegation that the city knowingly permitted its ordinance to be thus violated. The resolution proved this and also that the city co-operated with the offender; and by other proof it appeared that it received a consideration of §50 for the permission. Grant that the ordinance was not repealed, still it is shown by this resolution that the city consented to its violation.

a A resolution is an order of the council of a special and temporary character; an ordinance prescribes a permanent rule of conduct or government.” Dill., Mun. Corp., Vol. 1, Sec. 244. note.

This was an official act of the city of a formal character, properly provable under the issues and strongly tending to make out a material allegation contained in the declaration. It was competent evidence.

It is further objected that the court erred in an instruction for the plaintiff as follows:

66 The court instructs the jury that if they believe from the evidence that the city of Champaign constructed the sewer in the street called Walnut street, and the open ditch into which it emptied, and had the control and management thereof, and that the aldermen and city council of said city knew that the said sewer and open ditch into which it emptied, mentioned in the evidence, were filthy and offensive, and knew that persons were draining privies into the same, and permitted the same to continue up to the time this suit was commenced, and that offensive matter from said sewers and privies was deposited in the street adjacent to plaintiff’s residence, and that odors arose from said offensive matter in said sewer and ditch into which it emptied and entered the dwelling of the plaintiff and rendered the same unhealthy, uncomfortable and offensive, and made the plaintiff’s house disagreeable and unhealthy to live in, as alleged in plaintiff’s declaration, then the plaintiff is entitled to recover such damages as the jury, may find from the evidence will compensate her for such injury, if any, to herself and family, by reason of such offensive odors.”

It is argued that this instruction does not confine the jury to the consideration of damages caused by the connection with the Carter House. Ho reason is suggested why the jury should he so confined. There was proof of other instances where the city had, not by resolution, knowingly permitted, if not expressly authorized, such connections, and the evidence was sufficient to predicate the instruction in this respect. It is said that it is objectionable because it asserts in effect an absolute duty on the part of the city to prevent the bad odors arising from the ditch which annoyed the plaintiff.

We see no objection in this regard. We think, upon the facts assumed, there was liability, and that is all the instruction asserts.

The further objection is made that it instructs the jury to give damages for injuries to the plaintiff’s family. It authorizes the jury to give the plaintiff “such damages as will compensate .her for such injury, if any, to herself and family, by reason of such offensive odors.” It is apparent that the head of a family, a householder,- is damaged by anything which renders his habitation uncomfortable and unwholesome to himself or bis family. It can not be denied that the discomfort and ill health produced by such a cause as here alleged may be an injury, not only to every person affected, hut especially so to the head of the family, the householder; and, when carefully considered, this is all the instruction affirms upon this point. Possibly the jury, on a careless reading, might give it the construction contended for; and if defendant, was apprehensive that the jury might so misunderstand, it was its privilege to ask another instruction making the point clear.

From the verdict we are satisfied there was no misunderstanding. The amount allowed was certainly warranted by the evidence, and if the instructions were justly subject to the complaint made we should hardly feel disposed to consider it ground for reversal.

The further point is urged that the court erred in refusing the second instruction asked by the defendant. That instruction is as follows:

“ The court instructs the jury that the city council of the city of Champaign has not the power to authorize any one to violate any ordinance of said city; that all persons must take notice of this fact, and that any attempt on the part of the city council," if any such is shown, to authorize any person or persons to empty any privy or cesspool into the sewer in question, is absolutely null and void, and does not make the city responsible for any injury occasioned by such privy or cesspool being emptied into said sewer.”

The point here made is, in effect, the same as that presented in the objection to the resolution of the council above referred to, extending to all cases where, by any means, the city had permitted the ordinance to be violated. The proposition assumed by this instruction goes to the foundation of the plaintiff’s case. We regard it as essentially unsound.

True, as suggested, a city is ordinarily not liable for omitting to prosecute those who violate its ordinances, but the case supposed goes much further. An act is permitted and authorized which not merely violates an ordinance but perverts a sewer to an improper use and inflicts directly an injury upon the plaintiff.

The case is, in effect, the same as though a street or sidewalk were suffered to become unsafe from unlawful or improper use, or from any cause, and damage ensues, in which ease the city is held liable if it had notice, or if the circumstances were such that notice would be presumed. Here is a defective condition authorized by the city, and it can be no defense that the supposed authority was, in a legal sense, invalid. It can not be urged as a defense that the corporate act complained of was itself-insufficient or in violation of law. The case for the plaintiff does not imply that kthe authority under which the sewer was tapped was valid. The law is invariably broken when actionable tort is committed. e‘A municipal corporation is liable to indictment for a public nuisance maintained by it, and is also liable lor damages at the suit of an individual who sustains special damages therefrom. * * * If it allows its streets to remain out of repair, or if it neglects to abate nuisances injurious to the health of its citizens which it has the power to remove, or if it permits any public nuisance to exist upon its property, it may bo indicted and punished the same as an individual. * * * When a municipal corporation has ample power to remove a nuisance that is injurious to the health, endangers the safety or impairs the convenience of its citizens, or when, in the prosecution of a public work, it creates a nuisance, it is liable for all the injuries that result from a failure on its part to exercise the power possessed by it, and for the injuries resulting from its wrongful acts.” Wood on Nuisances, Secs. 743 and 744; Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Reed, 57 Ill. 29; City of Jacksonville v. Lambert, 62 Ill. 521.

¡No other objections are urged in the brief.

We are satisfied that the evidence fully sustains the case adeged in the declaration and that the judgment should be affirmed.

Judgment affirmed.


text:
    B. S. Prettyman et al v. Joseph B. Irwin.

      Equity Jurisdiction—Practice—Sa le—Fraud.

    1. The question of jurisdiction to grant relief in equity, if not raised before, will not be considered by this court unless the case be one where chancery would under no circumstances take cognizance of the subject-matter.
    2. Upon a bill alleging fraud, this court declines to interfere with a decree for the complainant.
    [Opinion filed September 21, 1888.]

      In ebbob to the Circuit Court of Tazewell County; the Hon. S. S. Page, Judge, presiding.
    Messrs. William Don Matts and William L. Peetttman, for plaintiffs in error.
    Mr. T. H. Gteeen, for defendant in error.
   Wall, P. J.

Appellants insist upon the fact alleged in the bill that the remedy, if any, was at law, and that there was no jurisdiction to grant relief in equity. The point was not made below, and it comes too late now unless the case be one where chancery would under no circumstances take cognizance of the subject-matter. Stout v. Cook, 41 Ill. 447; Hickey v. Forrestal, 49 Ill. 255; Bd. Supervisors v. Davis, 63 Ill. 405.

Fraud is one of the heads of original equity jurisdiction. With very limited exceptions it may be said that it is the subject of general if not universal jurisdiction in equity concurrent with courts of law in cases cognizable in the latter and exclusive in those beyond the reach of the courts of law. 1 Story’s Eq. Jur., Sec. 184. .

In the present case fraud is charged and denied in the pleadings and found by the decree. Various considerations are also urged by appellee in support of the position that the remedy at law, if any, was inadequate, and that relief in equity was essential to prevent circuity of action and to fully administer all rights involved, but we deem it unnecessary to dwell upon this branch of the case. The only question really important is, whether the substantial allegations of the bill are sustained by the proof.

We have carefully examined the entire case as presented in the abstract, frequently referring to the record, and after weighing the arguments of both sides we are inclined to agree with the conclusion reached by the Circuit Court. Without discussing the testimony, we need state only the result of our examination. The decree will be affirmed.

Decree affirmed.