text:
    The Cairo and St. Louis Railroad Company v. Gustavus Koerner et al.
    Attorney—Abandonment op case.—When an attorney accepts employment in a case, in the absence of a special contract to the contrary, the law implies an obligation on his part to attend to it until it is determined, and he cannot abandon it without just cause. He may demand payment of fees already earned, and if not paid, may upon reasonable notice withdraw from the case; but arefusal to pay some other demand will not justify him in leaving the case.
    Error to the Circuit Court of St. Clair county; the Hon. W&r. H. Snyder, Judge, presiding.
    Messrs. Judd & Whitehouse, for plaintiff in error;
    that the admissions of an officer of a corporation, made in the exercise of his duties, and concerning a matter within the scope of his authority only, are admissible against the corporation, cited C. B. & Q. R. R. Co. v. Coleman et al. 18 Ill. 297.
    An instruction assuming that certain material' facts in dispute have been proved, is erroneous: Duffield v. Delancy, 36 Ill. 258; Farnan v. Childs, 66 Ill. 544; Cusick v. Campbell, 68 Ill. 508; Chicago v. Scholten, 75 Ill. 468.
    Hr. L. D. Turner, for defendants in error;
    that where a client stands by and permits professional work to be done by an attorney under the direction of his attorney, he assents thereto by his silence and acquiescence, cited Eggleston et al. v. Boardman, The Reporter, June, 1878, 724.
   Allen, J.

The record in this case shows that defendants in error commenced an action of assumpsit against plaintiff in error in the St. Clair Circuit Court, returnable at the April term, 1876. In their declaration filed in the case, they ask a recovery for legal services in the sum of $2,500. There is no itemized account filed with the declaration, or in the case ; but simply an account for legal services, $2,500. A trial was had under this declaration, and a plea of the general issue before a jury, resulting in a verdict for defendants in error of $1,675.

The defendants in error claim fees for legal services in Chestnutwood v. Plaintiff in error, and for services in County Court, $1,000, on which they admit a payment of $750; also for services in Waterloo township, $1,000, and in Holbrook survey case, $125; also in case of People ex rel. Cairo & St. Louis Railroad Co. v. Depegt et al., $100; to making application for re-hearing in Cairo & St. Louis Railroad Co. v. Holbrook, $25, and also to legal services in injunction case of Holbrook, then pending and undetermined in the City Court of Alton, $500. Over this last item the principal controversy arises.

The court permitted the defendants in error to introduce evidence of the value of their services in this case while the cause was still pending and undetermined. Plaintiff in error objected to the evidence, on the ground that the relation of attorney and client still existed; that no reasonable notice of a withdrawal from the case had been given to plaintiff in error, and no bill for this service had been rendered by defendants.

Whether this evidence was proper on this trial must be dependent upon the facts and circumstances developed in its progress. The witness, G-. A. Koerner, states the employment: says that they had not given defendant notice that such employment would not be continued; had never made or presented any bill for such services, or demanded the same, but that he told Searls, the attorney of the company, “just before this trial began, that if the defendant would not pay us our demands for the old cases, that we would withdraw from this case at Alton, and put in our bill for it.”

G. Koerner says in his evidence: “ This forenoon I told Mr. Searls that unless our full amount was paid, or if we had to go on with the suit to get our pay, that we would withdraw from the Holbrook injunction ease, and put our charges for that case into this suit.” “ I told Searls, when he filed his plea, that after what had passed between the company and him, and between us, I considered the idea of defending the case as very strange, and to urge us into a trial as an offense and insult to us, intimating very strongly that if he did not withdraw the plea we would have no more to do with the company, and claim for all our services.” We never made any bill to the defendant for such services, or asked defendant for any pay upon that account, and gave defendant no notice of our intention to withdraw from the suit, until the conversation above alluded to with Mr. Searls. We felt justified in doing so, because the defendant would not pay our bill in the other cases, and thus compelled us to go into this trial, which is unpleasant to us.”

It is manifest from this evidence that the purpose to set up a claim for services in this suit did not exist when this suit was brought, but that it arose from causes occurring during the progress of the suit.' We understand that when an attorney takes an employment in á case, unless there is some special contract to the contrary, the law implies an obligation to attend to it until it is determined; that he cannot abandon it without just cause; that he may demand the payment of fees already earned, and that if not paid upon reasonable notice he may withdraw from the case. 2 Greenl. Ev. § 142.

In this case no notice was given until during the progress of the trial in court. Ho bill had been rendered, no demand of fees for this service, but if notice had been given, the reason assigned for withdrawing is not such as is recognized by the law. The same authority referred to above holds that a refusal to pay some other demand or liability will not justify an attorney in withdrawing from the case. So that in either view of the case it was error to admit the evidence to go to the jury. It is insisted by counsel for defendant that the evidence, independent of that in relation to the Holbrook injunction case, authorized the jury to find the verdict for $1,675, and that the jury must have left out of view the $500 charge in that case, else their finding would have been for a larger sum.

If there had been no conflict in the testimony as to the value of the other services rendered we might with some degree of certainty arrive at that conclusion, but as there was no special finding by the jury on that question, and as there was conflicting testimony as to the value of the other services, we do not feel authorized to conclude that the jury did not consider this $500 charge as well as others.

Again, the court permitted plaintiff in error to ask Buckston, a witness, whether the facts in proof would justify defendants in withdrawing from the Holbrook case, and (over the objection of defendants) the court permitted the witness to answer that “in his opinion they would.” How, whether they would or not justify a withdrawal was a question of law, and the opinion of the witness ought to have been excluded from the jury-

For these reasons the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Charles Ferriman v. Jehu Fields et al.
    1. ' Trespass—Who abe liable.—All persons who order, direct, aid, abet or assist in the commission of a trespass, are liable for all damages, though not benefited by the act.
    2. Ratification.—An attorney who instructs a constable as to the manner of making a levy, and afterwards with .full knowledge of the premises, receives the proceeds of the sale under such levy, ratifies and adopts the acts of the constable so as to make him a trespasser ab initio even if he was not a trespasser in the first instance.
    Appeal from the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding.
    Messrs. Wilson & Hutchinson and C. & B. B. Smith, for appellant;
    that when a sheriff makes himself a trespasser in the execution of a writ, all who direct, request, aid or abet, are joint trespassers with him, cited Wolf v. Boettcher, 64 Ill. 316.
    Mr. Jehu Fields, for appellees.
   Baker, J.

Schlanker & Co. made a general assignment to Ferriman for the benefit of their creditors, and the assignee took possession of the property. A week afterward Fields, as attorney for Henderson & Co. sued Schlanker & Co. and recovered a judgment against them. ¡Nearly a month after the assignee had taken possession under the assignment, Fields sued out an execution and delivered it to Gilbert, a constable and co-defendant herein, with directions as to levying it. Gilbert broke open the store and seized, removed and sold goods worth $331 to satisfy the execution. • The only controversy is as to whether Fields was a joint trespasser with Gilbert.

All'persons who order, direct, aid, abet or assist the eommis- . sion of a trespass or the conversion of personal property, are liable for all the damages, though not benefited by the act. A person may be guilty of the trespass, although he does not assent to the act until after it was committed. If a person sue out execution and give a bond of indemnity to the sheriff or constable to induce him to sell the goods of another, this is a sufficient interference to make him liable; so if he be in company with the officer at the time of the execution; and so, also, if he adopt the officer’s acts by receiving the goods or money. 1 Chit. Pl. 79, 80; Wolf v. Boettcher, 64 Ill. 316.

To our minds the clear weight of the evidence in this case shows that the constable in committing the trespass, was acting under the instructions of Fields; but, at all events, Fields ratified and adopted the acts of the constable. With full knowledge of the premises he took the proceeds of the sale from the constable, and refused to let the constable pay them to appellant. By this action he became a trespasser ab initio even if he was not a trespasser in the first instance. The court therefore erred in overruling the motion of appellant for a new trial. Inasmuch as some of the instructions given for the defendant Fields contravene the principles of law above enunciated, they are erroneous, and they probably misled the jury.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Bernard Flynn v. Lavina Gardner.
    1. Evidence—Use of meiiobandum.—A witness may refresh his memory by the use of a memorandum when he recollects having seen the writing before, and while the facts were fresh in his memory, though he has, at the time of testifying no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it he knew the contents to be correct.
    2. Husband and wife—Testimony by.—The statute allowing husband and wife to testify for each other in certain cases, is in derogation of the common law, and parties cannot avail themselves of its privileges unless they come within its provisions.

      3. Keeping boarding-house—Separate property of wife.—Under some circumstances, the business of keeping a hotel or boarding-house may perhaps be regarded as the separate property of the wife; but the fact that she makes the contracts for board, and receives the pay therefor, is not sufficient to prove a separate property. The presumption would be, where the husband and wife live together, that the husband is the head of the family, that the expenses were borne by him, and that he received the profits derived from the hoarders, and that his wife acted merely as his agent.
    Appeal from the County Court of White county; the Hon. Oblando Buebell, Judge, presiding.
    Messrs. Johnson & Graham, for appellant;
    that no proper foundation for the admission of the account book as evidence was laid, cited Bev. Stat. 1874, 489, § 3.
    Mr. P. A. Peaeoe, for appellee;
    as to the admission of evidence, cited Bev. Stat. 489, § 5.
   Baker, J.

Lavina Gardner, a married woman, sued Bernard Flynn for rent and for a board bill, and recovered judgment against him in the County Court of White county.

Upon the trial of the case, D. W. Gardner, the husband of appellee, against the objection of appellant, testified as a witness for appellee, for the purpose of establishing both the claim for rent and the claim for board. He was a competent witness as'to the rent, for the premises, rented were the sepa-, rate property of the wife; but he should not have been permitted to testify as to matters proving or tending to prove, the demand for board. We are not prepared to say that the business of keeping a hotel or boarding-house may not in some cases and under some circumstances, he the separate property of the wife, but we are of opinion that this record does not show such 'a case. Appellee and her husband were living together as husband and wife and liad a family, and appellant and his wife and bookkeeper boarded with them. It is true the evideuce shows that the wife had charge of the house, and made the contract with appellant for hoard, and the settlement with him in regard thereto, and received from him all moneys that he paid therefor. A wife may well, should there he hoarders in the family, make the contracts and settlements with such hoarders and collect the pay therefor, and yet all this would not prove any separate property in the wife. The presumption would be that the husband was the head of the family, and that the expenses of the family and of keeping the boarders were borne by him, and that he received and enjoyed, for the use of himself and family, the profits derived from the boarders, and that the .wife was merely acting as his agent. The fifth section of chapter 51 of the Revised Statutes of 1874, is in derogation of the common law, and parties cannot avail themselves of its privileges unless they bring themselves within its provisions. The evidence in this record does not rebut the presumption of the law and of our common experience, and establish the fact that this boarding of appellant and his wife was the separate property of the appellee within the meaning of the statute.

The account book of appellee was introduced in evidence, over the objections of appellant. The foundation laid was not such as was required in this State before the law of 1867, which law was a relaxation of the rule. Boyce v. Sweet, 3 Scam. 120. Nor did appellee bring herself within the requirements of the statute. R. S. 1874, p. 289, § 5.

It is urged that the court committed error in permitting appellee, while testifying, to refer tq the memorandum book that had been kept by her husband.

She testified on the trial that every time she received any money from appellant she had her husband to set it down; that she could not remember the sums of money paid her—neither the dates, nor tire amounts paid, nor the number of payments made by appellant—without referring to the memorandum book; that she stood by her husband and saw him make each entry in the book, and knew them to be correct; that when appellant or his bookkeeper paid her money she went to her husband and told him to set it down.

A witness may refresh and assist his memory by the use of a memorandum or entry in a book when he recollects having seen the writing before, and while the facts were fresh in his memory, and though he has, at the time of testifying, no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it he knew the contents to be correct. 1 Green!. Ev. §§ 436, 437.

We are of opinion that this error is not well assigned.

It appears to us to be clear, from the evidence, that on the 1st day of May, 1877, appellant was not indebted for either board or rent, and that a full settlement was made to that date. All payments after that date were made by the clerk of appellant, and there is no discrepancy between the parties as to the amounts paid, except as to the alleged payment of $45, and upon this point we think that the deadweight of evidence is for appellant; otherwise we cannot reconcile with ordinary •human conduct the action of appellee in returning $25 as overpaid. She now claims that appellant was then in debt to her for board, but she made no claim for board at that time, and returned- the money of her own motion, and without any request from the clerk of appellant. It is true that it was part of $60 that had been paid as rent, but if board was then due and unpaid she naturally would have suggested its application to that purpose, instead of going to appellant’s bar-room and returning it, with the statement that she had been paid too much.

It is our opinion the finding of the court was manifestly against the weight of the evidence.

The judgment is reversed and the cause remanded.

Eeversed and remanded.


author: Allen, J.

text:
    Noah Johnston v. Charles A. Berry.
    PuiscrPAL and Agent—Ratification—Repudiation.—If a principal intends to repudiate the acts of his agent, it is his duty to do so at once on receiving knowledge of them. If, on the contrary, he neglects to do so, and by his silence and delay the party contracting with the agent is led to believe that he has consented thereto, and thereby parts with a valuable consideration, the principal will be held to an implied ratification of the agreement.

      Appeal from the Circuit Court of Jefferson county; the Hon. Mohrob C. Crawford, Judge, presiding.
    Mr. Thomas S. Casbt, for appellant;
    that a principal must disaffirm the unauthorized act of his agent as soon as the fact comes to his knowledge, cited Chitty on Contracts, 202; 1 Parsons on Contracts, 82; Paley on Agency, 171; 2 Kent’s Com. 615; Livermore on Principal and Agent, 396; Ward v. Williams, 26 Ill. 447; Williams v. Merritt, 23 Ill. 623; Searing v. Butler, 69 Ill. 575.
    If payment of an individual debt is made out of the firm property, with the consent of the other partner, or such payment is subsequently ratified by the other partner, it will bind the firm: Corbin et al. v. McChesney, 26 Ill. 231; T. W. & W. R. R. Co. v. Rodrignes, 47 Ill. 188; Marine Co. v. Carver et al. 42 Ill. 66; Casey et al. v. Carver et al. 42 Ill. 225.
    Mr. Charles H. Pattoh, for appellee;
    contended that appellant received the goods knowing that the party giving them was a clerk or partner, and had no authority to pay his debt in that manner, and cited Trustees, etc. v. McCormick, 41 Ill. 323.
    The burden is upon appellant to prove that appellee ratified the act: 1 Greenleaf’s Ev. § 74.
   Allen, J.

This suit was commenced before a justice of the peace, and taken by appellee to the Circuit Court. Trial at February term, A. D. 1878, and judgment for appellee for $115 and costs. The cause is brought to this court by appeal.

The facts are, substantially, as follows:

Appellee and one J. F. Baltzel were in the grocery business together in Mt. Vernon. They were brothers-in-law. Appellee furnished the capital, and Baltzel, for his services was to receive one-half the profits. Baltzel was indebted to appellant, and had given appellant two notes. He agreed with appellant to pay the notes, or part of them, out of the stock in the grocery, if appellant would credit the notes with what he got. With this agreement, appellant commenced getting groceries in October, 1875. Sometimes he bought of Baltzell ancl sometimes of appellee, until February, 1877, when his bill amounted in the aggregate to §115. That the house was selling for cash.

Some time in February, 1877, appellee presented his account to appellant and demanded payment.

Appellant notified appellee of his arrangement with Baltzell, and refused to pay appellee the account.

What occurred subsequently will appear in the opinion.

The only question raised by this record is, whether the evidence in this case sustains the judgment of the Circuit Court.

The appellee, when told by appellant of the arrangement between appellant and Baltzell, proceeded with appellant to the store of appellee to see Baltzell. Baltzell informed appellee that what the “ Major” (meaning appellant) “ said was correct.” Appellee replied, “I did not know it,” or “You did not tell me.” Appellant remained some time in the store with appellee, but nothing further was said by appellee about the matter. When appellant left the store, and from that time until August or September following, appellee—although meeting appellant almost daily—said nothing further to appellant about the bill. In about one month after the interview between the parties at the store, in the presence of Baltzell, appellant and Baltzell had a settlement, in which appellant settled the account by surrendering up to Baltzell one of his notes, and placing upon another a credit for the balance after paying off the one note; that Baltzell then entered at the foot of the account on the book, charge to Baltzell,” and from that time for five months appellant heard nothing more from appellee about the matter, when appellee again demanded payment of the account. Was the conduct of appellee at the time he was made acquainted with the facts, and afterward, such as to imply assent to the agreement made by his agent or clerk ?

If appellee intended to repudiate the contract of Baltzell, it was his duty to do so at once on learning what the contract was. Chitty on Contracts, p. 202; Parsons on Contracts, 1st vol. p. 82. He had no right to deceive appellant by his silence, and induce him to surrender his notes to Baltzell under the impression that he, appellee, was consenting to the arrangement; and if by his silence he led appellant to believe he was assenting to it, he, by implication, ratified the agreement. Ward v. Williams, 26 Ill. 447; Williams v. Merritt, 23 Ill. 623.

Appellee says he told appellant at the time he first presented his bill that he could not pay the individual debts of Baltzell. Appellant contradicts him in this, and says that it was at the time he demanded his bill, in August or September, that he made that remark; but whether this remark was made at the one time or the other, when appellee, in his own store, was confronted by his clerk or agent, and informed that appellant had such an arrangement with him, on which he had received the goods, it was his duty then and there to have repudiated the contract of his clerk, and by his silence at that time and for six months afterward, he impliedly ratified it. With these views, we believe the judgment of the Circuit Court is not supported by the evidence.

Judgment of the Circuit Court reversed and cause remanded.

Reversed and remanded.


text:
    William Newell v. Mary E. Clodfelter et al.
    Practice—Setting aside order—Notice to opposite party.—After a general order of continuance has been entered in a cause, it is error to set aside such order in the absence of the opposite party, no notice having been given him of any intended application to set aside.
    Appeal from the Circuit Court of Richland county; the Hon. James C. Allen, Judge, presiding.
    Messrs. Canby & Ekey, for appellant;
    that it was error to set aside the continuance without notice to appellant, cited McKee v. Ludwig, 37 Ill. 28; Mattoon v. Hinkley, 33 Ill. 208.

      Mr: B. B. Smith, for appellees.
   Baker, J.

On the 30th day of October, 1877, a decree was entered in this cause in vacation. At the.November term, 1877, of the Richland Circuit Court, a motion was filed to set aside the -decree that had been so entered, and said motion was sustained, and the decree was vacated, and a re-hearing of said cause was granted.

At the April term, 1878, of said court, a general order of continuance was entered in the case. On a subsequent day of. the term this order of continuance was set aside by the court in the absence of solicitors for appellant, and a final decree was rendered. No notice was given to appellant, or to his solicitors, of any intended application to set aside the order of continuance.

The appellant was entitled to a reasonable notice before the order of continuance was set aside, and a final decree upon the merits rendered against him. McKee v. Ludwig, 30 Ill. 28; Mattoon v. Hinckley, 33 Ill. 208.

For this error the decree herein must be reversed and the cause remanded for a re-hearing.

■As the evidence in the record is exceedingly meagre and unsatisfactory, and as there will be a re-hearing, wherein the evidence will probably present the facts in a more tangible shape, we omit any discussion of the errors assigned that involve the merits of the controversy.

Reversed and remanded.

Allen, J., took no part in the decision of this case.


text:
    William R. Gregg v. Ulysses E. Fisher.
    1. Partnership—Poweb of one partner to bind the firm.—In ordinary commercial partnerships, each partner has the right to pledge the partnership property, or to borrow money ancl give notes for partnership purposes, in the firm name; and when credit is extended to a partnership within the scope of its business, it will bind all the partners, notwithstanding any secret arrangement they may have among themselves, unknown to those giving the credit.
    2. Partnership note—Presumption—Burden of proof.—A note or bill made by one partner in the name of the firm, will he presumed to have been made in the course of partnership dealings, and the burden of proof is upon him who seeks to impeach it, to show the contrary, and that such fact was within the knowledge of the payee.
    3. Misapplication of funds by one partner.—A misapplication, by one partner, of the funds borrowed, constitutes no defense to suit for payment of the note, unless it be shown that the plaintiff at the time he loaned the money had knowledge that the same was to be used for other than partnership purposes.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Levi Davts, Jr., for appellant;
    as to the power of one partner to borrow money, etc. for partnership purposes, cited Ulery v. Ginrich, 57 Ill. 531; Story on Partnership, § 102.
    When credit is given to a firm within the scope of its business, all the partners will be bound, notwithstanding any secret understanding between them, which is unknown to those giving the credit: Story on Partnership, § 105; U. S. Bank v. Binney, 5 Mason, 176; Ethridge v. Binney, 9 Pick. 272; Winship v. Bank of United States, 5 Pet. 529; Buckner v. Lee, 8 Ga. 285; Michigan Bank v. Eldridge, 9 Wall. 544; Bush v. Crawford, 7 Bank Reg. 209.
    A subsequent misapplication of the money by one partner, made without the knowledge of the lender, will not release the firm from liability: Wagner v. Freschl, 56 N. H. 495; Blodgett v. Weed, 119 Mass. 215; Warren v. French, 6 Allen, 317; Hayward v. French, 12 Gray, 453; Emerson v. Harmon, 14 Me. 271; Church v. Sparrow, 5 Wend. 223; Onondaga Co. Bank v. DePuy, 17 Wend. 47.
    A note made by one partner in the firm name will be presumed to have been made in the course of partnership dealings, and the burden is upon him who alleges the contrary to show it was not: Parsons on Bills, 128; Doty v.Bates, 11 Johns. 544; Whitaker v. Brown, 16 Wend. 505; Foster v. Andrews, 2 Penn. 160; Ensminger v. Marvin, 5 Blackf. 210; Knapp v. McBride, 7 Ala. 19; Thurston v. Lloyd, 4 Md. 283; Manning v. Hays, 6 Md. 5; Hamilton v. Summers, 12 B. Mon. 11; Thicknesse v. Bromilor, 2 Cr. & J. 425; Barrett v. Swan, 16 Me. 180; Bank of U. S. v. Binney, 5 Mason, 176; Miller v. Manice, 6 Hill, 114.
    Mr. Charles P. Wise, for appellee;
    that the evidence did not sufficiently establish the loss of the notes, cited Dormandy v. State Bank, 2 Scam. 236; Palmer v. Logan, 3 Scam. 56; Rogers v. Miller, 3 Scam. 333; Mariner v. Saunders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626.
    The case in every aspect presents questions of fact which it was the province of the jury to decide, and their verdict should not be disturbed: Wiggins Ferry Co. v. Higgins, 72 Ill. 517.
   Allen, J.

This was an action of assumpsit, by appellant against appellee and Cyrus Gregg, partners, under the style of Fisher & Gregg, on two promissory notes executed in the firm name of Fisher & Gregg, to the order of appellant, each dated June 17th, 1872, and payable, respectively, in twenty and twenty-five days after date; one of them being for $275.00, and the other for $120.00. The third count contained the ordinary money counts, and under it appellant sought to recover back $150.00, advanced by him to defendants on a draft drawn on him in the firm name of Fisher & Gregg, and dated June 1st, 1872.

Ho service was had on the defendant Gregg, or appearance entered for him. Fisher appeared and filed his plea, denying that he executed the note, verified by his affidavit. He also pleaded the Statute of Limitations.

Upon the first plea plaintiff joined issue, and to the second replied that the “ cause of action accrued within five years.” Evidence was introduced by plaintiff showing the loss of the notes; also showing that defendant and Cyrus Gregg, at the time the notes were executed, were in partnership in selling drugs at Alton, 111., under the name and style “ Fisher & Gregg,” from June, 1871, until August, 1872. That the store was managed by Gregg alone, Fisher taking no active part in the management. The evidence further shows that Gregg borrowed money for the firm at different times, and from different firms, for which he executed the firm paper; that in the spring of 1872 he borrowed $600 from Pearly & Woodman, gave the firm note for its payment, and that that note was afterwards taken up by defendant, and two notes executed in the firm name for it.

Benj. Sargent testifies that Fisher & Gregg borrowed money from First National Bank on two occasions, in 1871 and ’72; notes each for $300; don’t remember who got the money; one of these notes was paid by Fisher’s check.

The plaintiff, Wm. Gregg, testifies that he loaned the money for which notes were executed to Cyrus Gregg, for the use of the firm of Fisher & Gregg, as he, Cyrus Gregg, said that he had before that time accepted two drafts drawn by the firm of Fisher & Gregg, and paid the money on them; that Fisher had thanked him for accepting these drafts; that he did not present notes to Fisher, though he had opportunities to do so. Cyrus Gregg was in the family of Fisher, and was having trouble, and he did not want to do it.

Wm. T. Evarts testified that he was in wholesale drug business at Alton in 1871 and ’72. Often sold bills to Fisher & Gregg, for which he took their firm notes; had as many as 18 or 20 of their notes at different times; notes were executed by Gregg in firm name; knows that Fisher paid one of these notes.

Cyrus Gregg testified: “Notes sued on were given by me to raise money to be used in firm, and it was so used. Often borrowed money and gave firm notes for its payment whenever it was to be used in business of the firm; never gave firm notes for money I owed individually; am son-in-law of defendant Fisher.”

Defendant Fisher testified: Was in partnership with Cyrus Gregg; did not allow Cyrus Gregg to borrow money or give firm notes; did pay one note in First ¡National Bank, but did not want to do it.”

Defendant then introduced cash book, or what purported to be cash book, kept by Gregg, in which certain charges and credits were entered to plaintiff, in which the money obtained on the two notes is not entered; never heard of these notes or drafts from Wm. Gregg. Cyrus Gregg’s reputation for truth is bad—would not believe him under oath.

John H. Smith testified that in Spring of 1872, he loaned Cyrus Gregg, for the firm of Fisher & Gregg, $200; when due, Gregg couldn’t pay it, and refused to give firm notes for it; said Fisher had forbid him to do so.

Several witnesses testified to bad character of Cyrus Gregg for the truth.

The court gave the following instructions for defendant:

If the jury believe from the evidence, that the draft sued on in this suit, was due more than five years before the commencement of this suit, then the jury, under the pleadings in this case, must find as to such draft for the defendant.

If the jury believe from the evidence in this case, that the notes claimed to be lost and sued on in this case, were made by one C. M. Gregg, who signed the firm name of Fisher & Gregg to the same; but if they further believe from the evidence, that the said notes, if actually given, were given for borrowed money, and that C. M. Gregg, as a member of said firm of Fisher & Gregg, had no power or right to give the firm note for any such purpose, then the jury, as to such notes, must find for the defendants.

Upon this evidence and these instructions, the jury returned a verdict for defendant. A motion for new trial was overruled, and judgment on verdict for defendant.

In ordinary commercial partnerships (such as this one), each partner has a right to pledge the partnership property, or to borrow money for partnership purposes, to draw, negotiate, accept or endorse bills of exchange and promissory notes or checks in the partnership name. Ulery v. Ginrich, 57 Ill. 531. The rule is also well settled, that when a credit is given to a firm within the scope of its business, whether the partnership be general or limited, it will bind all the partners, notwithstanding any secret arrangement they may have among themselves, which are unknown to those who give the credit. Story on Partnership, § 105.

Again, a bill or note made by one partner in the name of the firm, will be presumed to have been made in the course of partnership dealings; and if the other partners seek to avoid its payment, the burden of proof will lie upon them to show that it was given in a matter not relating to the partnership business, and that that fact was within the knowledge of the payee. Parsons on Bills, § 128.

How let us apply these principles to the evidence in this case: It is shown by the evidence that Fisher & Gregg were partners in a drug establishment; that Gregg conducted the business; that he made the purchases and sales, made collections, borrowed money when necessary to carry on the business of the firm, and that so far as the public knew, was fully authorized to execute notes and draw bills and drafts in the firm name. That the partnership was to all intents and purposes, so far as the public were advised, an ordinary commercial partnership, with the rights and privileges and liabilities that attach or grow out of such a partnership. That while this firm was doing business, Gregg, the business manager, borrowed this money for the use of the firm, and executed the notes sued on. What is there in the evidence to contradict this ? Fisher, defendant, admits the partnership; admits that Gregg borrowed money and executed notes in the name of the firm; admits that he paid some of the notes himself, but says that he told Gregg that he must not borrow money, and must not use the firm name in giving notes and drawing bills, etc. How, if, instead of contenting himself with saying this to his partner, he had informed the public and the men who were extending favors to the firm, that Gregg had no authority to borrow money and to execute notes in the firm name, he might have made his defense available. It is true that defendant shows by one “ Smith ” . that Gregg told him at one time that Fisher had ordered him not to give notes in the firm name; but Smith, so far as the evidence shows, is the only man outside the firm that had any notice of this secret reservation between the partners.

Then, so far as this evidence goes, neither this plaintiff nor any other individual or firm that extended favors to this firm, had any knowledge of such a restriction on Gregg’s power. Defendant paid some of the notes thus given, and although he may have paid them under protest as having been given in violation of an agreement between him and his partner, his protest seems to have been only a mental ” one, as he failed to say anything about the understanding to those who had been extending accommodation to his firm.

The evidence wholly fails to show that this plaintiff had any knowledge that such an agreement existed between the partners. Plaintiff testifies that when he loaned the money, he understood it was for the use of the firm, and in this he stands uncontradicted. He denies that he had any knowledge of an arrangement by which Gregg was not authorized to execute firm notes; in this he is uncontradicted. And although Cyrus Gregg may have misapplied the funds thus obtained, still that is no defense to a suit on the notes, unless it was shown that plaintiff had knowledge that he intended to misapply them; and the fact that Cyrus Gregg did misapply the money thus obtained, if proven, either by the cash book or in any other way, would be no defense to this action. Before the defendant could avail himself of such a defense, he must show that plaintiff had knowledge that the'money was to be used for some other than a partnership purpose. Parsons on Bills, 128. And however successfully the defendant may have been in impeaching Cyrus Gregg, plaintiff’s evidence upon these questions stands not only unimpeached, but un contradicted.

In the second instruction given by the court to the jury for defendant, they are told “ that if they believe from the evidence that Gregg signed the name of the firm of Fisher & Gregg to the notes for borrowed money, and that Gregg had.no power or right to give the firm note for any such purpose, then the jury as to such notes must find for defendant.” That instruction was, in our judgment, calculated tó mislead the jury. The jury might believe that by an agreement between Fisher and Gregg, Gregg had no right to execute notes in the name of the firm, and that no recovery could be had on those notes for that reason. Tet, if the plaintiff loaned money for the purposes of the firm, and took the notes without any knowledge of the secret agreement between Fisher and Gregg, then the defendant Fisher vrould be liable, and the verdict should have been for the plaintiff.

With these views, the judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.


author: Tanner, P. J.

text:
    Trustees of Schools v. Matthew Stokes et al.
    1. Township treasurer—Payment oe money to successor—Action in name oe trustees oe schools.—When a township treasurer goes out of office it is his duty to pay over all moneys in his hands to his successor, and on a failure to do so, an action will lie upon his official bond therefor, at the suit of the trustees of schools, whether an apportionment of such moneys has been made among the several districts or not. If an apportionment has been made, it is not necessary that the hoard of trustees should sue for the use of* the teveral districts.
    2. Costs against trustees.—The court erred in giving judgment for costs against the plaintiff. Courts are forbidden by statute to charge costs where any agent of any school fund suing for the recovery of the same is plaintiff, and shall be unsuccessful in such suit.
    3. Testimony as to district ponds.—It was error to exclude from the jury evidence going to show that district funds.went into the hands of the defendant as treasurer, and that he refused to pay over the same on demand, hut converted them to his own use.
    Appeal from the Circuit Court of Union county; the Hon. Monroe 0. Crawford, Judge, presiding.
    Mr. W. S. Day, for appellants;
    that the trustees were the proper parties to bring suit, cited School Directors v. The People, 79 Ill. 511; Adams et al. v. The People, 82 Ill. 132; Rev. Stat. Chap, 112, § 62.
    School directors of the several districts would have no right to sue; they have only certain specified powers, and until authorized by an order of the board of trustees, have no right to receive any portion of this fund: Glidden et al. v. Hopkins, 47 Ill. 525; Newell v. School Directors, 68 Ill. 514; Wells v. The People, 71 Ill. 532; Peers v. Board of Education, 72 Ill. 508; School Directors v. School Directors, 73 Ill. 249; School Directors v. Fogleman, 76 Ill. 189; Clark v. Directors, 78 Ill. 474; Wilson v. School Directors, 81 Ill. 180; Tappan v. The People, 67 Ill. 340.
   Tanner, P. J.

This was an action of debt, instituted by the Board of Trustees of Schools, on the official bond of Matthew Stokes, as township treasurer. The cause was submitted to a jury, and a verdict returned in favor of appellees. A new trial was refused, and judgment rendered for appellees for cost.

The case is brought to this court by appeal, and various errors alleged. We propose, however, to notice only such of them as we think will properly dispose of the case.

The appellant urges that “the court erred in excluding from the jury the testimony in relation to district funds.” The fourth and fifth breaches of the declaration charge that district funds to the amount of two thousand dollars, went into the hands of Stokes, as treasurer, and that he refused to pay the same over to his successor in office upon demand, but that he converted said, funds to his own use. The court, in the first instance, permitted testimony to go to the jury, which showed that various sums of district money went into the hands of Stokes as such treasurer, but afterwards excluded such testimony from the' consideration of the jury. We are of opinion this was error.

The next alleged error which we shall notice, is that the court erred in giving instruction for the defendants.” The instruction of which complaint is made is as follows: “The court instructs the jury, that whenever a State or county fund, paid into the hands of a township treasurer, is apportioned and divided among the various districts of a township, then after such apportionment and division, no recovery can be had against a township treasurer for such funds under a declaration like the one in this case.” This instruction should not have been given. Section 40, Chap. 122 R. S. 1874, requires that the township board shall cause all moneys for the use of townships and districts to be paid to the township treasurer, and provides that for any improper conduct in the discharge of his duty as treasurer, they may sue him upon his bond. The bond sued on in this case is in pursuance of the 55 section of the same act, and made payable to the appellants, and requires that Stokes shall deliver to his successor in office all moneys, books and papers, securities, and other jDnrperty in his hands, as such township treasurer.

Section 34 provides that the trustees shall ascertain on the first Mondays of April and October óf each year the amount of State, county and township funds on hand subject to distribution, and shall apportion the same, and that the .funds so appropriated shall be placed on the books of the treasurer to the credit of the respective districts, and the same shall be paid out by the treasurer on the legal orders of the directors of the proper districts.

From these provisions of the statute we are unable to see why Stokes, when he went out of office, was not required to pay to his successor in office any and all moneys that he had in his hands as such township treasurer, whether such funds had been apportioned or not among the several districts of the township. The appellees have not seen proper to furnish us with any brief or argument in support of this ruling of the court, and we cannot clearly determine from the brief of the appellant upon what ground the court gave the instruction. If, however, it was upon the theory that the suit should have been brought to the use of the districts among which the funds had been apportioned, it was erroneously given in this respect. In the case of Tappan v. The People, 67 Ill. 340, the court held that a suit brought in the name of the people to the use of the trustees of schools, against the collector of taxes, to recover district school taxes in his hands, was properly instituted. The point that the suit should have been brought to the use of the district was urged in that case, and is disposed of by Justice Sheldon in these words: “Neither the trustees of schools nor the township treasurer would recover the taxes for their private use. The recovery would be in trust for the several school districts wherein the taxes were levied.” So, in the case at bar, moneys recovered would go into the hands of the treasurer, and be held for the benefit of the districts to which it belonged by the apportionment.

We are, therefore, clear in opinion that when a delinquent treasurer goes out of office and retains moneys which he received by virtue of his office, and refuses to pay the same to his successor in office, that a right of action is created thereby in favor of the board of trustees, and against the delinquent and his sureties upon his official bond, whether an apportionment or division of the fund has been struck or not among the various districts of the township. And when an apportionment has been made to the several districts, it is not necessary that the board should sue to the use of the districts. The money recovered would be held in trust for the districts entitled to the same, according to the apportionment.

The fourth assignment of error is, that “ the court erred in giving judgment against plaintiffs for cost.” We also think this was error. The 78 Sec. Chap. 122, R. S. 1874, provides that “ no justice of the peace, probate justice, constable, clerk of any court, or sheriff, shall charge any costs, in auy suit where any agent of any school fund suing for the recovery of the same, or any interest due thereon, is plaintiff, and shall be unsuccessful in such suit.”

This statute has been construed by the Supreme Court of our State in a case similar to the one at bar, adversely to the ruling of the Circuit Court. Trustees of Schools, etc. v. Walters et al. 12 Ill. 154; Trustees of Schools v. Hill et al. 85 Ill. 409. We deem a further examination of the errors assigned unnecessary, as they, even if well made, would not require any directions to be given to the Circuit Court on another trial of the cause.

For the several errors indicated, the cause must be reversed and remanded.

¡Reversed.


text:
    James C. Waugh v. James Suter et al.
    1. Motion in arrest of judgment.—Where there is a good count in the declaration to support the judgment, a motion in arrest cannot prevail. So where the declaration contained special counts on a bil 1 of exchange, and also the common counts, on a motion in arrest of judgment on the ground that the bill of exchange showed upon its face that it was the obligation of a corporation and not that of the defendants individually, the common counts would support a judgment against defendants.
    2. Judgment must be against all—Practice on default.—Where an action was against two jointly, one defendant answering and the other sufiering default, the issue as to the defendant who pleaded should have been tried, and the same jury should have assessed the damages against both; and it was error to render final judgment against the defendant in default, and take no proceedings against the other. The defendant in default has a substantial interest in having the judgment joint as to himself and co-defendan*-, as it might be immediately enforced against him, and therefore has the right of appeal therefrom.
    3. Motion to set aside—Discretion of the court—Diligence.— A motion to set aside a default is addressed to the discretion of the court, and will not be reviewed unless that discretion has been abused. But such motion should disclose a meritorious defense, and reasonable diligence in making it. Although the question of a meritorious defense is the most important, yet in this case the diligence shown is not such as would justify this court in reversing the case on that ground.
    Appeal from tbe Circuit Court of St. Clair county; tbe Hon. Wh. H. Snyder, Judge, presiding.
    Mr. James M. Dill and Mr. W. C. Kdeffner, for appellant;
    contending tliat the bill of exchange on its face showed it to be the obligation of a corporation, cited 1 Daniel on ¡Negotiable Instruments, 309; Safford v. Wyckoff, 1 Hill, 11; 4 Hill, 442.
    Being payable in another State, it was a foreign bill and should be protested: 1 Daniel on Negotiable Instruments, 8; Mason v. Dousay, 35 Ill. 424.
    The default should have been set aside: Mason v. McNamara, 57 Ill. 274; Sourbry v. Fisher, 62 Ill. 135.
    Proof of the character in which defendants signed the bill may be shown: Byles on Bills, 27; Haile v. Pierce, 32 Md. 327; Mechanics Bank v. Bank of Columbia, 5 Wheat. 326; R. F. & P. R. R. Co. v. Snead, 19 Gratt. 354; Brockaway v. Allen, 17 Wend. 40; 11 Mass. 97; 31 Mo. 193; 40 Mo. 69; 7 Cal. 535; 5 B. Mon. 51; 2 Conn. 680; 8 Cow. 31; 19 Me. 352; 16 Vt. 220; 2 Met. 47; 6 How. 371; 2 Ala. 274; 9 Barb. 529; 7 H. & J. 409; 21 Conn. 627; 16 Ga. 458; 1 Kernan, 200; 1 Crunch, 105; 49 N. Y. 390; 15 Wall. 664; 47 N. Y. 597; 9 Gratt. 68; 5 Wall. 689; 21 Pick. 490; 1 Clifford, 519.
    Messrs. Koeener & Turnee, for appellees;
    that on a judgment by default, defendant is precluded from raising the question whether the paper was properly indorsed, cited Underhill v. Kirkpatrick, 26 Ill. 84.
    The paper shows a personal liability of defendants: Powers v. Briggs, 79 Ill. 493; Burlingame v. Brewster, 79 Ill. 515.
   Baker, J.

Appellees sued appellant, and John Thomas, in the St. Clair Circuit Court, in an action of assumpsit. The declaration contained three special counts, and the common counts. The following bill of exchange was specially counted on:

“ Office of Belleville Nail Mill Co.
“ $223.51 Bellevile, Ills. Nov. 15th, 1875.
“ Three months after date, pay to the order of T. Swartboust 6 Co. two hundred and twenty-three 51-100 dollars, value received, and charge the same to account of Belleville Nail Mill Co.
“John Thomas, Vice-Pres’t.
“ James C. Waugh, Sec’y.
“ No. 188.
“ To F. H. Peeper, .Treasurer,
Belleville, Ills.”
Across the face of'said instrument the following was written:
“Accepted, payable at the Continental Bank, St. Louis, Mo.
“ F. H. Pieper, Treasurer.”

Thomas filed the general issue, and also a stipulation that all his evidence might be given under it. A default was taken against appellant, and the clerk assessed the damages, and the court rendered final judgment against him for $225 and costs. During the then term of the court, appellant moved the court to set aside said default, and filed an affidavit in support of his motion. But the court overruled said motion, and appellant excepted. A motion in arrest of judgment was also entered by appellant and overruled by the court, and an exception taken.

Appellant brings the record to this court, and assigns various errors.

It is urged that the court erred in overruling the motion in arrest of judgment, because the bill of exchange shows upon its face that it is the paper of the Belleville Hail Mill Company, and also because the declaration does not aver that it was protested. If either or both of these propositions were admitted as correct, still this would not help the case of appellant, so far as the motion in arrest is concerned. As has been stated, the declaration, in addition to the special counts, contains the common counts; and when there is a good count in the declaration to support the judgment, a motion in arrest cannot prevail. Bradshaw v. Hubbard, 1 Gilm. 390.

nevertheless, the motion in arrest should have prevailed herein, and it was error to render final judgment against appellant. The action was against two joint contractors, and process was served upon both. A plea was filed by one only, and a default was entered against the other. There was an assessment of damages, and a final ■ judgment against the defendant in default, and no proceeding whatever was taken as to the defendant who filed a plea. After the default of appellant was entered, the issue as to the other defendant should have been tried, and the same jury that tried that issue should have assessed the damages against both. The rule is inflexible, that in actions on contract against two or more, and all are served with process, judgment must go against all or none; for, as a contract is indivisible, so is the judgment thereon. The only exceptions to this rule are where the defense is personal—such as infancy or bankruptcy. Dow v. Rattle, 12 Ill. 373; Briggs v. Adams, 31 Ill. 486; Faulk v. Kellums, 54 Ill. 188.

Appellant has a substantial interest in having the judgment joint as to himself and his co-defendant, and the judgment might be immediately enforced against him, and therefore he has the right of appeal. Freeman on Judgments, § 35, and cases there cited.

It is also urged that the circuit court erred in refusing to set aside the default entered against appellant. The rule is that the motion to set aside a default is addressed to the discretion of the court, and that ordinarily the appellate court will not review its exercise, but only do so in furtherance of justice, when that discretion has been wrongfully and oppressively exercised. Freeman on Judgments, Chap. 7; Greenleaf v. Roe, 17 Ill. 474; Rich v. Hathaway, 18 Ill. 548; Scales v. Labor, 51 Ill. 232; Mason v. McNamara, 57 Ill. 274; Dowberry v. Fisher, 62 Ill. 135. Applications to set aside a default should show a meritorious defense, and a reasonable degree of diligence in making it. In our opinion a meritorious defense was shown in the application. The affidavit states that the only and sole cause of action is the bill of exchange, a copy of which is given above, and that said bill is the paper of the Hail Mill Company, and not the paper of appellant, and the details of the transaction are given in full in the affidavit. The paper itself, upon its face and as declared on in the special counts, seems to indicate that it is the paper of the Hail Mill Company. The direction to charge to account of Belleville Hail Mill Co., and the fact that the bill is headed as issued from the “ office of Belleville Nail Mill Co.,” seem to indicate that it is its bill. 1 Daniel on negotiable Instruments, §§ 410, 411; 1 Parsons on Hotes and Bills, Chap. 5, § 10. We do not regard the cases of Powers v. Briggs, 79 Ill. 493, and Burlingame v. Brewster, 79 Ill. 515, as repugnant to our conclusions. In the first case the persons signing the note expressly professed to bind themselves, and added the words, “ the trustees of the Seventh Presbyterian Church,’! to indicate the capacity or trust in which they acted; and in the latter case the body of the note showed a personal undertaking inconsistent with the idea of corporate liability.

In applications to set aside default, we regard the point of a meritorious defense as altogether the more important of the two required, and where the judgment is evidently unjust, a certain degree of neglect may, especially as terms can be imposed, be held to be excusable. Freeman on Judgments, §§ 114, 511.

In this case, however, the diligence shown by the affidavit of appellant is not such as would justify this Court in reviewing the action of the Circuit Court, and holding that the overruling of the motion to set aside default was error.

But, as there was error in rendering final judgment against appellant, while leaving undisposed of the issue as to his co-defendant, the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Sarah Talbot et al. v. Elizabeth C. Rountree.
    1. Will—Construction—Legacy—Upon what property charged. —The first clause of testator’s will, after devising to his wife the use, during her life, of all his real estate, concluded: “Also all my household and kitchen furniture, goods, chattels, moneys and effects belonging to me at the time of my death, to have the said personalty as her own, with authority to sell and dispose thereof as she may deem best, but subject to the payment of the bequest to E. hereinafter named.” The bequest to E. was of such a sum as would produce an annual income during her life of §150. Reid, that this specific bequest was not a charge upon the real estate; but it appearing that the widow had come into possession of sufficient personal estate to make provision for its payment, and had elected to take under the will, it was noterror to render a personal decree against her for the payment of the amount due on the bequest, and to enforce future compliance with the bequest, the" court might order the widow’s interest in the lands sequestered.
    2. Residuary legatee—Sequestration op lands.—The testator’s daughter was made residuary legatee, after the death of the widow, of all the lands and personalty. Reid, that it was competent for the court to make the payment of this legacy a charge upon all the interest of the widow, but that the court erred in ordering a sequestration of the lands for the payment of the specific legacy to E. for a longer period than the life of the widow. By the terms of the will, the residuary legatee will become charged with the payment of this specific legacy, but until she comes into possession this liability will not attach.
    Erbob to the Circuit Court of Washington county; the Hon., George W. Wall, Judge,- presiding.
    Mr. S. L. Bryan and Messrs. J. A. & A. 1. Watts, for plaintiffs in error;
    that the specific legacy was to be paid out of the personal estate, and that not being sufficient, the legacy abated, cited Heslop v. Gatton, Ex’r, 71 Ill. 528; Redfield on Wills, title, Abatement of Legacy.
    Mr. P. E. Hosmer and Mr. James M. Rountree, for defendant in error;
    that the specific legacy became a charge upon the real estate, cited 2 Redfield on Wills, § 208; Lapham v. Clapp, 10 R. J. 543; Willis v. Watson, 4 Scam. 64; 1 Scam. 276; 4 Gilm. 329; 53 Ill. 325; 6 Ill. 45.
    Upon the rule for construction of Wills: Smyth v. Taylor, 21 Ill. 296; Boyd et al. v. Strahan et al. 36 Ill. 355; Siegwald v. Siegwald, 37 Ill. 430; Brownfield v. Wilson et al. 78 Ill. 467.
   Allen, J.

This was a bill of chancery, filed by defendant in error, alleging that H. H. Talbot died testate, and, among other bequests, bequeathed to defendant in error, -during her life, the sum of $150.00 yearly, to be paid in installments of $75.00, semi-annually; that by his will the testator ordered that a sufficient sum be placed at interest, by the executor or the wife of deceased, as they might agree, to bring the sum of $75.00, half yearly, to be placed to the credit of defendant in error in the bank; that the bequest was by said will made a charge against the real estate of deceased; that the executor has ‘paid over to widow of deceased under the will all the personal estate; that the widow and executor have failed and refused to place at interest a sufficient sum to provide for payment of bequest to defendant in error; that there is due defendant in error the sum of $75.00, which by the will fell due July 1st, 1877; and charges that the widow is aged, and the residuary legatee, Emily Brown, is managing her affairs, and will waste the whole estate if not restrained. Bill prays judgment for the installment due, and asks for the appointment of a receiver to collect rents of real estate, to raise a fund to be placed at interest for benefit of defendant in error.

Plaintiffs in error answered and denied all material allegations in bill; also insisting that the bequest to defendant in error was not made a charge on real estate, but was a specific charge upon the personal estate, and claimed that if the personal estate was not sufficient to pay the bequest, it failed.

The court rendered a decree against Sarah Talbot, widow, and George W.. Akin, executor, for $76.50, and ordered an execution to issue for that sum and costs, against Sarah Talbot, and that George W. Akin, executor, pay in due course of administration; and further decreed that said Sarah Talbot and George W. Akin, executor, pay into the Washington County bank a sum sufficient to raise at semi-annual interest the sum of seventy-five dollars, or that they deposit notes secured by deed of trust on real estate to an amount sufficient to raise from interest thereon the sum of $75.00, semi-annually, to be paid to defendant in error; and that in default to do so in 30 days, that the sheriff óf Washington county sequestrate all the real estate of said Sarah Talbot (except the place on which she resides), or so much thereof as may be necessary to bring from the -rents thereof the sum of $75.00 semi-annually, and to collect the rents and pay the same in, or deposit the said sum on or before the first days of January and July of each year, during the natural life of the complainant (defendant in error), or during the refusal of the said George W. Akin and Sarah Talbot to create and establish such fund; said amount so deposited to be subject to the order of said complainant (defendant in error).

The controversy in this case grows out of the construction to be given to the will of H. H. Talbot, the husband of one of the defendants to the bill, Sarah Talbot, and the father of defendant in error, and of Emily Brown, plaintiff in error.

The provisions of the will under which the controversy arose are as follows:

First. I give, devise and bequeath to my wife, Sarah Talbot, during her natural life, the possession, use, control, rents, issues and profits of all my real estate, now owned by me, and hereinafter described, so far as the same remains undisposed of at my death, and any real estate hereafter acquired by me, and owned by me at the time of my death; also, all my household and kitchen furniture, goods, chattels, moneys and effects belonging to me at the time of my death; to have the said personalty as her own, with authority to sell and dispose thereof as she may deem best, but subject to the payment of the bequest to Elizabeth C. ¡Rountree hereinafter made.

Second. I give, devise and bequeath to my daughter, Elizabeth C. Rountree, in fee simple, lots ¡No. forty and forty-two in Barger’s addition to ¡Nashville, and the sum of one hundred and fifty dollars yearly, so long as she lives, to be paid her' in half-yearly installments of seventy-five dollars each; to be paid her at the Washington County Bank, in ¡Nashville, Illinois, on the first days of January and July, promptly, by my wife or executor, as they mcvy agree. And to provide for the payment of this bequest I hereby direct that a sum sufficient to bring that amount at least, be deposited in said bank, or loaned out and well secured; and the interest arising from said deposit or loan be placed to the credit and subject to the order of my said daughter to the amount of one hundred and fifty dollars yearly, as above.

Fifth. I give, devise and bequeath to my daughter, Emily Brown, in fee simple, after the death of my said wife, lot ¡No. eight, and east third of the south two-thirds of lot No. six, both in block No. four, in the Town of Nashville; and all the residue of my goods, chattels, household and kitchen furniture, moneys and effects remaining unexpended after my wife’s death, subject, however, to the payment every six months of the bequest to Elizabeth 0. Rountree, during her natural life, as hereinbefore provided for.”

The first question that is presented by plaintiff in error is: Does this will make the bequest to defendant in error a charge upon, the real estate of the testator? After devising to his wife, Sarah Talbot, during her natural life, the possession and control, issues, rents and profits of all the real estate that he might own at his death; also all household and kitchen furniture, goods and chatties, moneys and effects at his death, to have said personalty as her own, with authority to sell and dispose of as she might deem best, “but subject to the payment of the bequest to Elizabeth C. Rountree hereinafter made.” Row, what is it that is subject to the bequest of Elizabeth Rountree? Is it the real estate devised to the widow during her life, the rents and' profits issuing out of the real estate? or is it the personally that the widow takes, that is to become subject to the bequest of Mrs. Rountree? In the construction of wills we must give to their language the primary acceptation of the word used: “ for we are told that a testator is always presumed to use words in which he expresses himself according to their primary acceptance.” Wigram on Wills, p. 55. Unless from the context of the will it appears that he used them in some other sense. Row, by the terms of this clause of the will, Mrs. Talbot was to have the personalty, subject to the bequest to Mrs. Rountree. The word personalty has a strict and primary sense, and is applied to chattels personal, things movable, as contra-distinguished from things real or attached to the realty. In construing this clause of the will, then, we cannot reject the word personalty used by the testator, for no word in a will can be rejected and another substituted for it, without the clearest certainty that it was the intention of the testator to use the word in some other sense. Redfield on the Law of Wills, p. 471-2.

We fail to find anything in the context that warrants a different interpretation, or that the testator intended to use the word personalty in any other than its primary sense, but we do find in the context that which strengthens us in the opinion that it was only the bequest of the personal estate that was to be subject to the bequest to Mrs. Rountree.

The second bequest gives to Elizabeth 0. Rountree lots 40 and 42, in Barger’s addition to Rashville, in fee simple, and the “ sum of $150 yearly, so long as she lives, to be paid her in half-yearly installments of $75.00 each, to be paid at the Washington county bank, &c., by my wife or my executor, as they may agree.” ¡Now, the executor only had to do with the personalty. The real estate was to go to the widow during her life and to the devisees named in the will at her death.

Again, in the 5th clause in the will, the testator devises and bequeaths, after the death of the widow, lot 8 and ■§• of S. -| of lot 6, block 4, in ¡Nashville. “ The residue of his goods, chattels, household and kitchen furniture, moneys and effects, remaining unexpended after my wife’s death, subject, however, to the payment every six months of the bequest to Elizabeth Rountree, as hereinbefore provided.”

Taking the three clauses, of the will together and giving them a construction consistent with each other, we are clear in our conviction that it was not the purpose of the testator to make the bequest to Mrs. Rountree a charge upon the real estate, but that it was his purpose to provide that out of the personal estate provision should be made to secure to her this $150 annually, and that it was the duty of the executor to see that done as directed in the will, and that Mrs. Talbot, the widow, in electing to take under the will and in receiving the bequest of the personalty, became chargeable with the bequest to Mrs. Rountree during her life, and that Mrs. ¡Brown, as the residuary legatee of the personalty, will take it subject to the payment of the bequest. This view of the question harmonizes with the other provisions in the will. This leads us to a consideration of the decree rendered by the Circuit Court herein. The court found from the evidence that the widow had received from the executor $1,800, and from rents from real estate $2,900. Plaintiffs in error insist that the widow could not in any event be held liable to defendant for more than the interest on $1,300, inasmuch as that was all from the personal assets that she received from the executor. The record shows that the executor was made a witness and testified in the cause below. It is possible that something in his testimony may have led the court to conclude that the widow had received more than the $1,300, for which she was chargeable.

The records show that $2,918.25 was received by the widow from the executor for rents from real estate. Whether any portion of this rent had accrued and was due at the death of testator, or whether it was rents that accrued after his death, is left to mere conjecture. All rents due at the date of the testator’s death would go to the executor as personalty, and would form a part of the personal estate of the testator, which by the terms of the will, would be subject to the payment of the bequest to Mrs. Bountree. Bents that accrued afterward would go, under the will, directly to the widow, and would not be subject to this bequest. From the fact that the executor was handling the rents, and in the absence of any proof that he was acting as the agent of Mrs. Talbot in collecting them, and the fact that he charged himself with them, and credited himself when he paid them over, and that he settled in the County Court upon this basis, would indicate that the rents had accrued before the death of the testator, and from the record we take that view. If this view is correct, then Mrs. Talbot has from the personal estate of the testator an abundant sum out of which she may secure to defendant in error the $150 per annum, and becomes liable personally for it, and it was not error for the court to -so find and so decree.

The bill charges that the executor and the widow were in default in the payment of one installment of $75.00, and the court find that charge to be sustained by the evidence, and for that sum and the accrued interest, rendered a personal decree against the widow for that installment and the interest. It is insisted by plaintiffs in error that the court had no right to render a personal decree against Mrs. Talbot, but we believe that, having accepted under the will, and having taken the personalty, she was personally liable to defendant in error for whatever was due and unpaid.

The bill charges a refusal by Mrs. Talbot and the executor to secure to defendant in error her bequest to so place a sufficient sum at interest as to raise $150 a year, for the use of defendant in error. The answer admits that this has not been done. The record shows the widow, Mrs. Talbot, had it in her power to do this; that she failed to do so. A court of equity has power to compel her to comply with the conditions upon which she enjoys the bequest in the will, and to accomplish this, has power to render against her such decree and sequestrate her property, and the rents, issues and profits of any lands to which she is entitled, either in fee or for life, to the end that defendant in error may have that to which the will entitles her. Revised Statutes, Chap. 22, § 42. But in doing this, due regard must be had to the rights of others under the will. Since the will only makes the payment of this bequest or legacy a charge on the personalty, a court of equity would not be authorized to charge its payment upon any of the lands beyond the natural life of the widow, Mrs. Talbot. It could not become a charge upon the lands which go by the will to Emma Brown, after the death of her mother, nor to any other lands which are devised by the will to other devisees upon the death of Mr. Talbot. By the terms of the will the residuary legatee, Mrs. Brown, will become personally liable for the payment of the bequest as the legatee, but until she comes into possession, this liability will not attach. It was competent for the court to make the payment of this bequest a charge upon whatever interest Mrs. Talbot had in the lands, and to sequestrate the rents, issues and profits to an extent sufficient to secure the payment of the bequest during the life time of Mrs. Talbot; but upon the death of Mrs. Talbot these lands go, under the will, immediately to the other devisees in the will, and to sequester lands devised to Sophia Brown (and Ida Rountree, by the 3d and 4th clauses in the will), after these lands vest in them upon the death of Mrs. Talbot, would be to violate the provisions of the will by which these lands and the rents, issues and profits all go to them.

The decree of the Circuit Court makes the sheriff a receiver, and directs him (in the event that the executor and widow fail to make the provision required by the will) to sequestrate the rents of all the lands owned by the widow (except the place where she resides), and to collect the rents and pay to complainant in the bill (defendant in error) $75.00, or deposit the same to her credit in bank on the 1st days of January and July in each year during her natural life. This decree would m alee the bequest a charge upon the lauds devised to Mrs. Talbot beyond her natural life, if defen dan in error survived her, and throw the burden of this bequest upon whoever took the lands under the will at the death of Mrs. Talbot. This would, in our judgment, violate the provisions of the will. We believe the Circuit Court erred in decreeing a lien upon the lands, and sequestrating the rents and profits beyond the natural life of Mrs. Talbot, and for this reason we reverse the decree of the Circuit Court.

Reversed and remanded.


author: Baker, J. Allen, J.

text:
    David T. Bonnell v. David B. Lewis.
    1. Practice in chancery—Facts must appear in the record.—It is the established doctrine in this State that the evidence or the facts on which the decree is based must appear somewhere in the record. It is not essential that they should be embodied in the decree. If they are already apart of the record in the cause, by being contained in the Master’s report, or in depositions taken as the law requires, or in exhibits, or are made a part of the record by a certificate of evidence, it is sufficient. If not thus preserved, they must appear upon the face of the decree.
    2. Exceptions to the rule.—Proceedings for mechanic’s lien are an exception to the general rule above stated. So,, also, where the decree is based upon the verdict of a jury in an issue out of chancery, the evidence heard by the jury need not be preserved in the record. But if in such case the court should enter up a decree contrary to the verdict, such decree must be sustained by evidence contained in the record.
    Error to the Circuit Court of Jersey county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. James H. English, for plaintiff in error.
   Baker, J.

The bill filed in this cause was for an injunction, and to redeem lands sold on execution.

In the record there is no certificate of the evidence, or bill of exceptions, or master’s report, or finding in the decree of any of the specific facts necessary to sustain the decree. With the record, but not properly a part thereof, we find a number of loose ex-$>art& affidavits that appear to have been presented to the Judge in vacation, at chambers, upon a motion to dissolve the injunction; but these affidavits were not, unless by agreement of parties, admissible in evidence on the final hearing. No such agreement is shown, nor is there anything whatever in the record tending even to show that they were used on the hearing.

It is the established doctrine in this state that the evidence or the facts on which the decree is based, must appear somewhere in the record, but they do not appear in this, unless we are prepared to hold that the statement in the decree that the cause come on to be heard on the bill, answer, replication, and proofs, and that the court, having heard the evidence, found that the said bill, and each and every allegation thereof was true, is a sufficient finding of the facts to sustain the decree.

Under the old English chancery practice, the decree not only recited the evidence as the facts upon which it was based, but contained recitals of the pleadings in the cause. Where a decree was rendered which did not recite the facts upon which it was founded, or which the court considered as proved, it was error apparent on the face of the decree. Brend v. Brend, 1 Vernon’s Ch. Rep. 213; Bonham v. Newcomb, Idem, 215; 2 Daniell’s Chy. Pl. and Pr. 10, 20, and notes; Burdine v. Shelton, 10 Yerg. 41.

In 1st Harrison’s Ch. Pr. 108, it is said that the facts which were proved and allowed, viz: alleged by the court to be proved, must be particularly mentioned in the decree.

In Broad v. Broad, 2 Ch. Ca. 161, Lord North declared and was clearly of opinion that it was not enough to say “on reading the proofs it is decreed, but on reading the proofs it appeared thus and thus, and it is therefore decreed.”

In the United States the decrees are usually general, and contain a mere reference to the pleadings, and for the purpose of examining all errors of law the pleadings, exhibits, depositions regularly taken and on file in the cause, and master’s report, are as much a part of the record before the court as the decree itself.

And such is the doctrine in this State. In England, and for the purposes of a bill of review, that which was not in the decree was not considered a part of the record, and therefore in all cases the facts were required to be set forth in the decree itself. But with us it is otherwise; here it is not absolutely essential that the facts should be embodied in the decree. If the facts necessary to support the decree are already a part of the record in the cause, by reason of being contained in the master’s report, or in depositions taken as the law requires and on file in the cause, or in exhibits, or are made a part of the record by the certificate of the judge or a bill of exceptions, then they may be omitted from the decree, and the decree yet be not erroneous. Even in such case it is much the safer and better practice to incorporate them in the decree.

If the specific and essential facts, or evidence thereof, upon which the decree is predicated, are not otherwise preserved, then they must necessarily appear upon the face of the decree. It is a sine qua non that the facts are in the record.

We would refer to Moore v. School Trustees, 19 Ill. 88; Wilhite v. Pearce, 47 Ill. 413; Durham v. Mulkey, 59 Ill. 91; Ward v. Owens, 12 Ill. 283; Nichols v. Thornton, 16 Ill. 113.

Upon a writ of error in a chancery cause, the court will not presume that any evidence was given in the court below, except what appears in the record. The testimony of the witnesses or the facts proved by them must appear in the record. Reddick v. State Bank, 27 Ill. 148; White v. Morrison, 11 Ill. 361; Osborn v. Horine, 17 Ill. 92; Stacy v. Randall, 17 Ill. 467.

There are some exceptions to the general rule. A bill taken for confessed is not an exception, for there the bill itself is evidence of the facts well alleged therein, and it is a part of the record.

But a contrary rule is held applicable to proceedings under the mechanics’ lien law, and in this respect they are unlike other chancery proceedings. In such cases the practice has never obtained in this State of preserving the evidence in the record as a necessary support of the decree. Kelly v. Chapman, 13 Ill. 530; Ross v. Derr, 18 Ill. 245; Kidder v. Aholtz, 36 Ill. 478: Lewis v. Rose, 82 Ill. 574.

So, also, if an issue out of chancery is submitted to a jury, and the decree of the court is based upon the verdict of the jury, it is not requisite that the evidence should be preserved; but if in such case the court enters up a decree contrary to the verdict, such decree must be sustained by evidence contained in the record. Thatcher v. Thatcher, 17 Ill. 63; Becker v. Becker, 79 Ill. 533; Shillinger v. Shillinger, 14 Ill. 147; Wheeler v. Wheeler, 18 Ill. 39; Davis v. Davis, 30 Ill. 180; Hawes v. Hawes, 33 Ill. 286; Bowman v. Bowman, 64 Ill. 75; all, or most of which, are referred to by appellee in his brief, were without exception decrees entered fro confesso on bills for divorce, and that evidence was required to be heard at all was owing to a statutory requirement. ' It is not necessary to preserve in the record of a divorce suit the proofs heard by the court on a decree pro confesso. In Shillinger v. Shillinger, supra, which is the leading case of this character, and which construes the statute requiring proofs in such case, the court says: “It is not necessary that the evidence upon which the court acts should be preserved in the record; but it will be sufficient if the record shows that the court heard evidence and found the allegations of the bill to be true.” In Davis v. Davis, supra, it was expressly shown in the decree that the court heard proof and was “ satisfied of the truth of the allegations as in the said complainant’s bill alleged and set forth,” and the court disposed of the matter by saying: “ This complied with the law —it is not necessary that the proof should appear in the record.” The other cases cited are to the same effect, and show that a general finding, in so many words, that the allegations of the bill are true, is not regarded as a compliance with the requirement in ordinary chancery causes that the facts or the evidence must be preserved in the record; but that such divorce proceedings, like proceedings under the mechanics’ lien law, are considered exceptions to the general rule.

And such has uniformly been the understanding and the practice of the bar, and it is difficult to see why any safe and prudent practitioner, if a statement in the decree that the court found from the evidence each and every allegation .of the bill to be true is sufficient, should draw up his decree by setting forth in detail the facts found, and thereby jeopardize the rights and interests of his client by a possible omission of that which might be regarded by the appellate court as a material fact. We are wholly unable to perceive any material difference between finding all the allegations of a bill to be true, and finding each and every allegation of a bill to be true.

The practice contended for. would be loose and unsatisfactory; it would be impossible to know with any certainty upon what grounds the court founded its decree, and such practice might be conducive to fraud and oppression.

The statement in this decree is not a statement either of the evidence or of the facts proved, but it is a mere statement of the conclusion of the court from the evidence or from the facts proven.

We are of the opinion, therefore, that both the errors are well assigned, and that the Circuit Court erred both in finding the issues for the defendant in error, and in rendering a decree in his favor; for there is nothing whatever in this record to justify such finding or upon which to base such decree.

The decree is reversed and the cause remanded.

Reversed and remanded.

Allen, J.

I dissent from the opinion of a majority of the court in this case. The court finds from the evidence each and every allegation of the bill to be true. The bill is a pa,rt of the record, and the court finds each allegation supported by the evidence. Would it be any stronger if each allegation of the bill was specifically mentioned, and a special finding as to that specific amount? This, it is admitted, would be a sufficient finding, and I do not believe that the decree in this cause should be reversed because it does not thus specifically find. This finding is not a general finding by the judge, but a finding on each and every allegation in the bill, and for this reason, I cannot concur with a majority of the court.


text:
    Edward S. Wilson v. John P. Higgins.
    Evidence—Burden of proof.—It is a fundamental rule in judicial determinations, that to enable a plaintiff to recover, he must support his alleged cause of action by a preponderance of testimony.
    Appeal from the Circuit Court of Richland county; the Hon. John H. Halley, Judge, presiding.
    Messrs. Wilson & Hutchinson, for appellant.
   Tanner, P. J.

This cause was tried on appeal from a justice of the peace. The facts were submitted to a jury, and verdict returned in favor of the appellee. A motion for a new trial was made, overruled, and judgment rendered on the verdict. The appellant excepted to the rulings of the court, and brings the ease to this court by appeal, and alleges for error the refusal to grant a new trial.

We think the error well assigned. It is a fundamental rule in judicial determinations that to enable the plaintiff to recover, he must support his alleged cause of action by a preponderance of testimony. The appellee has not done so in this case. The testimony is brief, and we give it entire as it appears in the bill of exceptions:

Plaintiff testifies: “I was in court house; defendant called me out and asked me if I would sell him a wagon; I agreed to let him have a wagon; he wanted to get one on account of John W. Brothers; I agreed to let him have one—he to give me a note on Brothers; I was up here (Olney) and saw Wilson soon after, and told him the wagons were on the road. When they came I was putting them together, and Richard Rowland came after a wagon for Wilson; I asked him if he had Brothers’ note; he said he knew nothing about any note; Rowland said Wilson was not at home; I then told him to take the wagon home and keep it till Saturday —merely as a loan—by which tíme I would see Wilson, and if he did not get Brothers’ note he could return the wagon; I afterwards named the matter to Wilson. When I sold the wagon Brothers was in Illinois; he afterwards moved to Indiana; and Wilson agreed to go down with me and help me make the money out of him; I asked him to do so once or twice, but he never did so; Brothers has since died; I then asked Wilson about paying for the wagon; he said he owed me nothing—that my debt was due from Brothers; I then sued him for the wagon; it was worth $100.”

Sabins Blair testified: “I was helping Higgins put up some wagons. Bichard Bowland came there and wanted a wagon. Higgins refused; Bowland said he must have it. Higgins then said he would lend it to him till Saturday, when he would see Wilson about it. Then Bowland took the wagon. He was working for Wilson. The wagon was worth $100 cash.” Plaintiff rested.

E. A. Wilson, defendant, testified: “ I got a wagon from Higgins; it’s along time since. We, Wilson & Hutchinson, were litigating for John W. Brothers, and he owed our firm largely. We asked him for pay. He had no money, but said “he had a deal with John P. Higgins, the plaintiff, and that if we could use a wagon and would give him credit for $100, he would make arrangements with Higgins by which we should get a wagon. We consented, and he afterwards came to our office and said he had made the arrangements with Higgins, and it was all right. I saw Higgins shortly afterwards, and told him Brothers owed Wilson & Hutchinson, and had agreed to see him, and arrange to get a wagon of him, which he (Higgins) was to charge to Brothers, and for which we, Wilson & Hutchinson, were to give Brothers credit for $100. Higgins said Brothers had seen him, and that it was all right; that he had a car-load of wagons on the road, and when they came we should send and get one. When they came I sent Bowland with my team to get a wagon. He got it. There was no arrangement by which we were to get Brothers’ note. Brothers said he would arrange with Higgins for the wagon. Higgins said Brothers had made the arrangement, and we got the wagon, and gave Brothers credit for it Don’t know what the arrangement between Higgins and Brothers was. We never agreed, and I never agreed to get Brothers’ .note.» Higgins never spoke to me about it for more than two years. When we got this wagon and gave Brothers credit for it, Brothers was good. Two years (or more) after that Brothers had failed, and after his failure, Higgins came to me and said Brothers had not paid him for the wagon, and he thought I ought to pay. I told him Ihad nothing to do with the matter; that credit had been given Brothers on the firm books for the wagon, and that I had settled with my partner for his half of it, and it was his carelessness if he had lost it. Still later he came to me again and said Brothers had property in Indiana, but it was so covered up with mortgages that he was afraid to attempt to make it. I told him I would go over with him to try to help him find a levy any time he wanted o go, but he never came, and I never heard any more of it till I was sued. “ I did not buy the wagon of-Hi gins individually. It was got by the firm on Brothers’ account, and this Higgins understood at the time.” “ We never had Brothers’ note, and there never was any understanding that we should get it for Higgins. Bowland w.-»s not my agent for any purpose, nor authorized to make any- contrae;; for me with Higgins; nor did he notify me that Higgins had sent the wagon as a loan, or demanded any note, and I afterward saw Higgins, I presume once a wee'r, to 'the time he first mentioned the wagon to me, which was two yea s or more afterwards.”

T. W. Hutchinson testified: “Wilson, the defendant, and myself, bought this wagon of John W. Brothers, and paid him for it by giving him credit as agreed upon. He was to get the wagon of plaintiff on a private dealing between them, the nature of which they never explained to me. We first made the bargain with' Brothers. Then Wilson told plaintiff what the understanding was, and he consented to it, and promised to furnish us the wagon when his next car-load arrived, which he said was on the way. We never agreed to get Mr. Brothers’ note for Mr. Higgins, nor did he ask us to do so. We did not need the wagon—should not have thought of buying it, but as it was offered us on - a debt, we accepted it at $100, and I discounted my half of it to Mr. Wilson, giving him $10 off, and he paid ine $40 for my half.”

On cross-examination witness said: This was five or six years ago; did not remember fully all the circumstances, but was sure the bargain between Brothers and Wilson & Hutchinson was fairly and fully stated to Higgins, and that Higgins agreed to it. The talk was between Wilson & Higgins in witness’ presence. He ver heard of this claim by Higgins for two or three years after the wagon was got and its value divided. I never authorized Howland nor any one else to change the bargain under which we were to get the wagon, and never till to-day heard of any- claim that he did so.”

The appellee is unsupported in his statement that the wagon was to be paid for in a note to be given by Brothers to him, which appellant was to procure and deliver. But appellant is fully corroborated by Hutchinson in his statement of the contract, from which it clearly appears that the wagon was sold to the appellant and T: W. Hutchinson by Brothers, and was delivered in pursuance of an arrangement made by him with the appellee.

It may have been the intention of the appellee at the time he delivered the wagon, to abandon his contract with Brothers, and hold appellant liable, but before he could do so he would have to apprise appellant of the fact, either before the delivery of the wagon, or within a reasonable time thereafter. If delivered to appellant through his agent Howland, merely as a loan, and not on the contract, it was the duty of appellee to bring this fact to the- knowledge of appellant. According to his own statement, he took upon himself the duty of informing appellant that the wagon was a loan. He says: “I told him (Howland) to take the wagon home and keep it until Saturday, merely as a loan, by which time I would,see Wilson.” The only expression used by appellee in his testimony, from which even an inference can be drawn that he ever informed the appellant that the wagon was not delivered on the contract with Brothers, is that “I afterwards named the matter to Wilson.” But precisely when or what matter he named to appellant we are left to conjecture.

The appellant states that he was never informed by ¡Rowland or the appellee that the wagon was delivered as a loan, but that about two years after he got the wagon, and after Brothers had become insolvent, the appellee informed him that Brothers had never paid for the wagon. This statement is not denied by the appellee. If the appellee did not deliver the wagon on the contract with Brothers, hut merely as a loan, we are at a loss for a reasonable interpretation of this language: “When I sold Wilson the wagon, Brothers was in Illinois; afterwards he moved to Indiana, and Wilson agreed to go down with me and help me make the money out of him; I asked him to do so once or twice.” If he sold the wagon to Wilson, why seek to make the money out of Brothers, who was a non-resident, and in nowise indebted to him?

We are satisfied that the verdict of the jury was palpably against the evidence, and should have been set aside and a new trial awarded. The judgment of the Circuit Court is reversed, and the cause remanded.

¡Reversed.


text:
    The Indianapolis and St. Louis Railroad Company v. John Dawson.
    Agekt—Authority to employ assistakt.—Appellant employed P. as detective to recover a lot of stolen goods and capture the thieves. P. engaged appellee to assist him, telling him that if the company didn’t pay him he (P.) would. The evidence failing to show any authority in P. to employ appellee for the company, the verdict cannot be supported.
    Appeal from Alton City Court; the Hon. IIenky S. Baker, Judge, presiding.
    Hr. J. H. Yager, for appellant;
    that the authority of the servants of a carrier is a question of fact to be determined by the jury, and the burden of proof is upon the party claiming such authority, cited 2 Redfield on Railways, 131; Thurman v.Wells, 18 Barb. 500.
    A party claiming to be ati agent cannot establish such agency by his own uncorroborated testimony: Maxey v. Heckethorn, 44 Ill. 437.
    Declarations of an agent, to be admissible as evidence, must have been made in respect to matters within the scope of his employment: Osgood v. Bringhoff, 32 Iowa, 265; Rawson v. Curtis, 19 Ill. 456.
    Instructions should be based on evidence in the case: Gibson v. Webster, 44 Ill. 483; Harmit v. Thompson, 46 Ill. 460; Bullock v. Narratt, 49 Ill. 62.
    Mr. John J. Bkenholt, for appellee;
    that an agent binds his principal by such subordinate acts as are necessary to be done in connection with the principal act, cited 2 Parsons on Contracts, 57.
    Where a principal allows his agent to so act as to give one employed by him reason to believe that he is employed by the principal, he will be bound:. Gowen Marble Company v. Tarrant, 73 Ill. 608.
    Appellee supposed, and had a right to suppose, from the conduct of the officers of appellant that the company was his employer: Wilson Sewing Machine Co. v. Boyington, 73 Ill. 534; I. & St. L. R. R. Co. v. Miller, 71 Ill. 463.
   Allen, J.

This suit was brought by appellee against appellant in the City Court of Alton, and tried by a jury. Verdict for Appellee for $100. Motio i for new trial overruled, and judgment for appellee for one hundred dollars and cost, from which judgment the cause is 1 ronglit to this court on appeal.

Appellee testified that he was marshal of the city; that in 1875 B. B. Prettyman informed appellee that appellant had offered a reward of $100 for the capture of thieves, and recovery of goods stolen from appellant’s cars near Alton; that Prettyman had been acting as detective for appellant, and promised t.ppell.e tlivt appellant should pay him, appellee, if he recovered the goods, and that if appellant did not piy, he, Prettyman, would; that under the arrangement, lr\ appellee, pass.d over appellant’s road to Mattoon free of charge; tiiat while in appellant’s office in Ma;.oon, saw Judge Steel, who promised appellee that if he captured the thieves and recovered the goods, he (Steel) would see that a.pp.llee was well paid. “I captured the thieves, and they were sent to the penitentiary.” “ I also recovered the greater part of the goods va ue $400.’’ “ I don’t know if Prettyman had any authority from the company to employ me on behalf of the company.”

Dawson, tickecE a ent, and Burgess, freight agent, both testify as to return of goods captur :d by appellee.

Dawson says he knows that Prettyman was working the case, and that appellee, was in telegraphic communication with Prettyman at Mattoun.

Lewis Hurvel testifies that he was present with appellee and Prettyman in saloon in Alton. Prettyman said to Dawson, “ he would pay Dawson $100 if he would recover goods and capture the thieves.”

Philip Riley testifies that he heard Prettyman say he would pay for all trouble appellee would be at.

On part of appellant, Egbert B. McClure testifies: Was general freight agent for appellant. Appellant hired Prettyman as detective in certain cases. Prettyman had no authority from appellant to employ others; never was regularly employed by appellant; was employed in this case to work it up and recover stolen property, for which appellant promised to pay him $100 for recovery of goods stolen. Appellant paid Prettyman $160 for recovery of goods and capture of thieves. Judge Steel was never the regular attorney of appellant; was sometimes employed by it in cases in Mattoon, where he resides. Appellant has no regular detectives; only pays detectives by the job.

The court gave to the jury two instructions, to both of which exceptions were taken by appellant. We discover no objection to the first, but the second instruction is objectionable. It reads as follows:

2. “If the jury believe from the evidence that John Dawson was employed by the Indianapolis and St. Louis Railroad Company, and that the company received the benefit of said services, then the j ary must find for the plaintiff in any amount not exceeding §400.”

This instruction lends to the jury a very wide discretion. It should have restricted them in their finding to such sum as the evidence showed his services were worth, orto such sum as they believed from the evidence appellant had agreed to pay, but the jury may well have concluded that under this instruction they were only limited in their finding to the sum of §400.

It was error to give the instruction in that form, but upon the'whole evidence in this case, we fail to find enough to support this verdict. It turns upon the question as to whether Prettyman was authorized by appellant to employ others to to capture thieves and goods at appellant’s expense. We think the evidence wholly fails to show such authority. Taking the testimony of appellee himself, it leaves the mind in doubt as to whether he regarded himself employed by appellant or by Prettyman, for he says Prettyman told him “if the company didn’t pay him he would.”

McClure testifies that Prettyman was only employed by the company by the job; never in regular employment, and the same as to Steel’s employment. We think the evidence fails to show any authority in Prettyman (or Steel either) to employ appellee, and that the evidence fails to support the verdict of the jury. Judgment of court below reversed and cause remanded.

Reversed and remanded.