author: Keefes, J.

text:
    B. Oswald v. John Mollet.

      Landlord and Tenant—Distress for Rent—Attornment—Parol— Assignment of Lease.

    1. The delivery of a copy of a lease and the assignment of notes given by the lessee to secure rent thereunder, constitute a valid assignment of the lease where such is the intention of the parties.
    2. Any act done by the tenant by which he recognizes a change of the person to whom the rent is due, is an attornment. •

      3. In the case presented, this court holds that an endeavor by a lessee to persuade the assignee of the lease to accept grain instead of cash rent, coupled with the remark that he was sorry he signed the notes to secure the payment of rent, but that they were “ all right,” amounted to an attornment.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding-.
    Messrs. Burrough & Warnook, for appellant.
    Messrs. Dale & Bradshaw, for appellee.
   Keefes, J.

This was a proceeding by appellant in distress for rent.- On the trial of the cause in the court below, this stipulation was made:

State of Illinois,) Madison County. $
In the Circuit Court, October term, A. D. 1887.
JB. Oswald v. John Mollet—Appeal.

It is stipulated and agreed that the following are all the facts in this case:

On the 1st day of June, 1886, Fridolin Oswald, being the owner of the real estate hereinafter described, leased to the defendant, by a proper instrument of writing, duly signed, sealed and delivered, the north half of the northeast quarter of section 33, and the east three-eighths of the south half of the southeast quarter of section 28, all in township 5 north, range 5 west of the third principal merid an, in Madison county, Illinois, for a term commencing on the 1st day of March, 1887, and ending on the 1st day of March, 1888, as to all of said premises not sown in small grain, and fur all the said premises which should be sown in small grain said term was to extend from the 1st day of June, 1886, to the 1st day of June, 1888. That as rent for said promises, said Mollet agrees in said lease to pay to said Oswald the sum of §300, for which rent said Mollet executed and delivered to said Oswald his three certain promissory notes, bearing date June 1, 1888, due in one year, sixteen months and twenty-one months after dale, respectively, each for the prinei pal sum of §100, and all payable to the order of said Oswald. That said lease was not made in duplicate; that the original lease, so executed as aforesaid, was, when so executed, delivered to said Mollet, in whose possession said lease has since remained, and that said Oswald retained a copy of said lease, which was not signed by said Mollet; that said Mollet took possession of said premises at the date of said lease, and has ever since continued in possession thereof; that in the latter part of September. 1886, said Fridolin Oswald duly assigned and delivered said notes to the plaintiff, B. Oswald, for a good and valuable consideration, and also delivered to him said copy of said lease, intending thereby to assign his interest in said original lease to him, the plaintiff; that in the early part of October, 1886, the plaintiff went to the defendant, John Mollet, and told him that said Fridolin Oswald had assigned and delivered to him said notes and lease for a valuable consideration, and told him he would now have to deal with and pay his rent to him, the said B. Oswald. That said defendant then told the plaintiff that he would prefer to pay one-tliird of the crops grown in lieu of money rent, but the plaintiff told him that he must pay the rent agreed upon and represented by the said notes, and the defendant told the plaintiff he was sorry he had signed the notes, but he had signed them and they were all right; that on the 26th day of July, 1880, and again on the 5th day of May, 1881, the said Fridolin Oswald, together with his wife, executed certain mortgage deeds to one John M. Kamm, to secure the payment of certain notes in said mortgages described; that said John M. Kamm afterward died, and one John J. Spindler qualified as his administrator; that in February, 1887, said John J. Spindler filed his bill in the Circuit Court of Madison county, Illinois, to foreclose said mortgages, and that at the March term, 1887, of said court, a decree of foreclosure was entered foreclosing said mortgages. Said mortgages and notes and decree in said cause are to be considered as offered in evidence in this cause, as are all the papers transmitted to this court from the justice court; that on June 7, 1887, said ¡premises were sold under said decree of foreclosure to Anna Suppiger for §3,100; that this plaintiff, B. Oswald, was not made a party defendant to said foreclosure suit, and neither was said John Mollet; that on the 16th day of December, 1886, the said F. Oswald made an assignment for the benefit of his creditors; that on the — day of -, A. D. 1887, said premises were duly sold at assignee’s sale to Catherine Katmn; that at said assignee’s sale, before said premises were sold, the plaintiff publicly read the notice hereto attached and marked A, which reads as follows:

“All who may be concerned are hereby notified that prior to the making and executing of the deed of assignment of Fridolin Oswald to Frederick Lcnscher, by virtue of which this sale is being conducted, I procured, for a valuable consideration, the assignment to me of the rent notes for, and the lease to, the north half of the northeast quarter of section 33, containing eighty acres; also the east three-eighths of the south half of the southeast quarter of section 28, containing 30 acres, all in township five north, range five, west of the third principal meridian, in Madison county, Illinois, and that I claim the rent of said premises for the crop year of 1886 and 1887, and any one purchasing at this sale will purchase subject to my claim for rent.
“ Balz Oswald.”

This stipulation states all the facts material in the consideration of the case. The only question for the court to determine is, whether appellant can sustain his action of distraint for rent; or, stated in another form, did the relation of landlord and tenant exist between appellant and appellee. We think the stipulated facts sufficiently show that there was an assignment of the lease to appellant. It is true that the assignment was by parol, but that does not detract from it, for it is well settled that such a lease may be' assigned by parol, when the rights of the parties are such as the stipulation disclose them to be in this case.

The stipulation states that by the assignment of the notes and the delivery of a copy of the lease, Fridolin Oswald intended to assign his interest in the original lease to appellant.

If was not, therefore, simply an assignment of the rent, but an assignment of the lease that was intended. But this alone is not sufficient to create the relationship of landlord and tenant between appellant and appellee. There must also be an attornment by appellee. The English statute of 4 Anne, by which the necessity of attornment was abolished when there had been an assignment of the lease, has not been adopted in this State. Fisher v. Deering, 60 Ill. 114.

An attornment is a continuation of the existing lease upon the same conditions in all respects, simply putting another in the place of the original landlord. Austin v. Aheare, 61 N. Y. 6.

The stipulation recites that appellant, after he got the notes and copy of lease, went to appellee and told him that Fridolin Oswald, who had made the lease to appellee, liad assigned and delivered to him the notes and lease for a valuable consideration, and that lie (appellee) would now have to deal with and pay the rent to him, appellant. Appellee then told appellant that he would prefer to pay one-third of tiie ero2)s grown on the land in lieu of money rent, but appellant replied that he must pay the rent agreed upon and represented by the notes. Appellee then said he was sorry that he had signed the notes, but that he had signed them, and they were all right,,

This is the evidence upon which appellant predicates an attornment. It must be conceded, where the tenant 2>ays rent to assignee of lease, this constitutes an attornment. Any act done by the tenant by which he recognizes a change of the person to whom the rent is due, is an attornment. An agreement to pay the rent to the assignee is sneh an act. Hayes v. Lawver, 83 Ill. 182.

The question remains, did what passed between appellant and appellee amount to an attornment. While the question is not free from donbt, it would seem that the negotiation on the part of appellee with appellant for a change of the rent from money rent to a share of the crops, and his declaration that the notes for the money rent were all right, after notice that the notes and lease had been assigned to appellant, was such a recognition of appellant as the person to whom the rent was due, as would amount to an attornment.

It is also urged that under the mortgage that was foreclosed on the leased premises, the rents of the land passed to the receiver appointed in that proceeding. It would seem to be a sufficient answer to this, that it does not appear that the receiver is making any claim to the rent. The same may be said in relation to the assignee under the general assignment made by Fridolin Oswald for the benefit of creditors.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    Joseph J. Hudson v. The People of the State of Illinois.

      Intoxicating liquors—Sale to Person in Habit of Getting Intoxicated— Twice in Jeopardy—Irregular Verdict—Waiver.

    1. Where a verdict against a defendant is so defective as to be a nullity, and it is set aside and a new trial awarded at his instance, he may be again tried on the original indictment.
    2. The defendant may waive his constitutional privilege, and a motion by him to set aside a fatally defective verdict will amount to such waiver.
    3. A verdict on an indictment containing six counts in the words, “ We, the jury, find the defendant guilty, four counts,” is fatally defective.
    [Opinion filed October 19, 1888.]
    Appeal from the County Court of Franklin County; the Hon W. J. N. Meyers, Judge, presiding.
    Messrs. F. M. Youngblood and R. H. Flannigan, for appellant.
    Mr. W. S. Cantrell, State’s Attorney, for appellees.
   Green, P. J.

The appellant was tried in the County Court of Franklin county at the August term, 1886, on an indict-merit certified from the Circuit Court, containing six counts, in five of which he is charged with selling intoxicating liquors to A. D. Weston, a person in the habit of getting intoxicated, and in the sixth and last count he is charged with selling intoxicating liquor to said Weston, then intoxicated, and the jury returned the following verdict: “ We, the jury, find the defendant guilty, four counts of the indictment.” At the same term, on motion of defendant, a new trial was awarded. At the February term, 1887, defendant filed his motion to be discharged, in which he sets up the proceedings at said August term, and as reasons for his discharge, says that the court can not again place him on trial on said indictment, because he was acquitted as to two counts in said indictment, and the jury failed to specify in their verdict on which counts of said indietm nt they found him guilty, and on which counts they acquitted him; but at the August term, 1887, notwithstanding this motion, and against his objection then again made, defendant was again put on trial on 'the first five counts, and the State’s Attorney entered a “nolle pros." as to the sixth count of said indictment. It was stipulated on behalf of defendant and the people that the evidence offered on the trial at the August term, 1887, showed satisfactorily that said A. D. Weston was a man in the habit of becoming intoxicated at the times mentioned in said indictment, and the bartender of defendant had sold him intoxicating liquors some five or six times within eighteen months prior to the finding of said indictment, and the jury found defendant guilty in first, second, third, fourth and fifth counts of the indictment; whereupon defendant filed his motion for new trial, and in arrest of judgment, which were overruled by the court and judgment entered against defendant for fine of $20 on each of said counts, and costs. To reverse this judgment defendant took this appeal, and his counsel submits these two questions as the only ones to be determined by this court: 1. “ Can a defendant who has been tried on an indictment containing six counts, and a verdict rendered in the following words, £We, the jury, find the defendant guilty, four counts,’ and a new trial granted, be again put upon trial on the same indictment and a conviction on five counts sustained?”

2. “Did not the first trial and verdict operate as an acquittal absolutely on two of the counts in said indictment, and if so, could the court again place the defendant on trial on said indictment, there being no possible mode by which the court could determine which counts in the indictment the defendant had been acquitted upon?”

The verdict of the jury at the August term, 1886, was so defective that no judgment of conviction on any particular counts of the indictment could have been entered; hence it was a nullity, and defendant filed his motion to set it aside and for a new trial, which was sustained by the court and a new trial awarded. Such being the facts, the questions submitted must be determined by the rule announced in decisions of our Supreme Court and in the decisions of other courts of last resort, cited in text boobs, in cases where the facts and proceedings were the same as here; and any claim for the discharge of appellant must be based upon the declaration in our bill of rights, Sec. 10, Constitution of 1870, “ that no person shall be twice put in jeopardy for the same offense.” The jeopardy mentioned must be such in legal contemplation, and the constitutional privilege may be waived by one charged with an offense. In Lane v. People, 5 Gilm. 305, the court say, the judgment will be reversed at the instance of the prisoner and he will not in legal contemplation have been in jeopardy and may again be indicted and put on his trial for the same offense. The same doctrine is announced in Gerhard v. People, 3 Scam. 362; Bedee v. People, 73 Ill. 320; Phillips v. People, 88 Ill. 160; and in the treatises of many eminent writers on the subject of criminal law. The conclusion reached by us after an examination of authorities is, that the verdict at the first trial being a nullity, on which no judgment conid be rendered, and having been set aside and a new trial awarded at the instance of defendant,.he was not in contemplation of law in jeopardy, and could be tried again on the same indictment. In Law v. People, 1 Scam. 414, on the first trial a verdict of guilty was rendered against defendants, but the verdict was-so defective that no judgment could be entered upon it; defendants moved for a new trial, but withdrew the motion before any adjudication on it, and filed a motion in arrest of judgment, which the court overruled and set aside the verdict. Defendants were put on trial again on the same indictment and found guilty, their motion in arrest of judgment was overruled, judgment was entered on the verdict and the record taken to the Supreme Court, and it was there held the Circuit Court did not err in setting aside defective verdict, awarding new trial and putting defendants on trial again.

The defendant waived his constitutional privilege by the granting of his own motion and setting aside the defective verdict of the first jury at his instance. 1 Wharton, Criminal Law, Sec. 591; 3d Ibid., Sec. 3175; 1 Bishop, Criminal Law, Sec. 998. In the case of Logg v. People, 8 Ill. App. 99, cited by appellant, the court say: “The first and second counts of the indictment upon which the defendants were first tried being for distinct offenses, a verdict of guilty upon the second count only Avas equivalent in law to a verdict of not guilty upon the first count, and unless such verdict of acquittal should he set aside at their instance, they could not be again placed in jeopardy for the same offense.”

The Iuav thus stated is, as we understand it, marking clearly the distinction between cases where the verdict is set aside at the instance of defendants, and cases in which the verdict remains undisturbed.

The error in the contention on behalf of appellant is in assuming there is a verdict which, by finding defendant guilty in four counts out of six, necessarily acquits of two, Avhen the record shows no such verdict exists, it having been set aside on appellant’s motion.

We find no error in the record requiring the reversal of the judgment, and affirm the same.

Judgment affirmed.


author: Green, -J. P.

text:
    William H. Hayden v. Alton National Bank.

      Principal and Agent—Banker's Lien on Deposit—Set-off.

    1. A bank may set. off a matured indebtedness against deposits made by a third person as agent of its debtor.
    2. A joint and several note may be set-off against a debt due one of its makers.
    3. In the case presented, it is held: That the deposits in question were made by the agent as the money of the principa!; that the bank was so informed when the account was opened by him; and that no part thereof was set apart for specific purposes.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Baker & Baker, for appellant.
    We claim that the set-off was not a legal and proper one, and that under our Supreme Court decisions the plaintiff ought to recover and the set-off be denied. “ Demands to be set off must be mutual.” Waterman on Set-off, 252; Bridgham v. Tileston, 3 Allen, 371.
    “Demands to be set off must be mutual and between the parties to the action.” 1 Chitty Pl. 571; Babington on Set-off, 37; Gregg v. James, Breese, 107; Hinckly v. West, 4 Gilm. 136; Burgwin v. Babcock, 11 Ill. 28; Hilliard v. Walker, 11 Ill. 644.
    “ In general, a set-off must be claim of all defendants and no more against all plaintiffs and no more.” Hilliard v. Walker, 11 Ill. 644; Favorite v. Lord & Smith, 35 Ill. 142; Lemon v. Stevenson, 36 Ill. 49; Stenson v. Gould, 74 Ill. 80; Coats v. Preston, 105 Ill. 470.
    If the bank has any right whatever to apply this money deposited with it by the plaintiff on the notes in evidence, that right must rest upon the banker’s lien or banker’s right of set-off which, under certain circumstances, permits such application. In many States there is no such lien or right to set off. In this State, however, the lien on the funds of a depositor exists under certain circumstances.
    The law is, nevertheless: “ That where a deposit is general there is an implied undertaking on the part of the bank to return, not the same funds, but an equivalent sum whenever it shall be demanded.” Ward v. Johnson, 95 Ill. 215; Brahm v. Adkins, 77 Ill. 263; Otis v. Gross, 96 Ill. 612.
    “ The relation between the depositor and the banker is that of debtor and creditor.” Morse on Banks and Banking, 28; Johnson v. Ward, 2 Ill. App. 261; Ward v. Johnson, 95 Ill. 215; Graves v. Dudley, 20 N. Y. 80; Croskell v. Bower, 32 Beav. 86.
    “The doctrine is well established, where money is deposited in the bank in the ordinary course of business it does not raise a contract of bailment. The transaction amounts to a loan without interest and creates the relation of debtor and creditor; the bank receives the money deposited and undertakes to repay the same on demand at all events.” Edwards on Bailments, 66; Story on Bailments, Sec. 88; Marine Bank of Chicago v. Rushmore, 28 Ill. 463, 471.
    As to a banker’s lien, the Supreme Court, in the case of Commercial National Bank v. Proctor, 98 Ill. 558, says that “where a depositor in a bank is indebted to the bank by bill, note or other independent indebtedness, the bank has the right to apply so much of the funds of the depositor to the payment of his matured indebtedness as may be necessary,” etc. That is, where the depositor himself is indebted to the bank, and the depositor himself has funds in the bank, the latter may be applied to the indebtedness. That is the only condition or circumstance under which the lien exists or can be exercised. The depositor and the debtor must be identically the same person.
    The rule governing the lien of a banker on the money in his possession must of necessity be fixed and determined. It can not be shifting, now covering this case and now that. The business world demanded that it should be beyond question and quibble, and it has, therefore,' been laid down as an absolute rule governing such cases, that “the lien and the right of set-off only exist when the individual, who is both depositor and debtor, stands in both these characters alike, in precisely the same relation and on precisely the. same footing towards the bank.” Morse on Banks and Banking, 48; Grant on Banking (3d Ed.), 308.
    This is held to be the rule in England, as shown in the case of Watts v. Christie, 11 Beav. 355, and in the State of Arkansas, as indicated in the case of Dawson v. Real Estate Bank, 5 Ark. 283.
    This rule has also been adopted by our Supreme Court and by our Appellate Courts in Richardson v. International Bank, 11 Ill. App. 582; Coats v. Preston, 105 Ill. 470; International Bank v. Jones, 119 Ill. 407.
    “ Funds deposited in bank for a special purpose, known to the bank, can not be withheld from that purpose and set off against a debt due the bank from a depositor.” Grant on Banking, 300; Jarvis v. Rogers, 15 Mass. 397; Davis v. Bousler, 5 T. R. 492; Locke v. Prescott, 32 Beav. 261; U. S. Bank v. Manchester, 9 Barr. 479.
    Messrs. Wise & Davis, for appellee.
    Appellant’s agency and the name of his principal having been disclosed when he deposited- the money sued for, the action should be in the principal’s name. Rentchler v. Hucke, 3 Ill. App. 144.
    In an action by an agent to recover money due his principal a debt of the principal to the defendant may be set off. Coppin v. Walker, 7 Taunt. 237; Coppin v. Craig, 7 Taunt. 243; Higgins v. Senior, 8 M. & W. 834; Huntington v. Knox, 7 Cush. 371; Rabone, Jr., v. Williams, 7 T. R. 360 n.; Stinson v. Gould, 74 Ill. 80.

      “ Where a depositor in a bank is indebted to the bank by bill, note or other independent indebtedness, the bank has the right to apply so much of the funds of the depositor to the payment of his matured indebtedness as may be necessary.” Commercial National Bank v. Proctor, 98 Ill. 558; Morse on Banks and Banking, p. 45.
    ■ Where two or more parties enter into a joint and several bond or note it becomes the separate debt of each, and ■ may therefore be set off by the obligee or payee in an action brought against him by either of the obligors or makers. Fletcher v. Dyche, 2 T. R. 32; Dunn v. West, 5 B. Mon. 376; Stadler v. Parmlee, 10 Iowa, 23; Branch State Bank v. Morris, 13 Iowa, 136; White v. Rogers, 6 Blackf. 436; Pate v. Gray, Hemp. 155; Donelson v. Colerain, 4 Met. 430.
   Green, -J. P.

Appellant brought suit against appellee to recover an amount of money deposited with the latter by appellant in the name of “William H. Hayden, agent.” The cause was tried by the court without a jury, under a plea of the general issue and notice of “set-off,” stating that the defendant would insist the money sued for was the property of George D. Hayden and not plaintiff’s, and came to and was received by plaintiff as agent for George D. Hayden, and was deposited with defendant by plaintiff in his name, but as agent for George D. Hayden, who, before the commencement of this suit, was and is indebted to defendant on three notes, two for 81,000 each and one for 8300 (describing notes), signed by Geo. D. and Sarah Hayden, which notes became due before the commencement of the suit, and offers to set off and allow against demand sued for so much of said money due from said George D. Hayden to defendant as will be sufficient to satisfy and discharge such demand. ¡No findings of law were requested on behalf of either party. The court found the issues for defendant and rendered judgment against plaintiff for- costs, whereupon plaintiff took this appeal, his motion for a new trial having been overruled. It appears from the evidence said George D. Hayden had been engaged in business in Alton until August 2, 1887, when he disappeared, leaving no one in charge of his business; that a few days after his de. partnre, his brother, the appellant, came to Alton, and, as he says, at the instance of creditors of George D. Hayden, took charge of the business as the agent of his brother to look after it until it should be ascertained, where his brother was. During the time he was so acting, and on September 3, 1887, he opened an account with appellee in the name of “ William H. Ilayden, agent,” and between September 3 and 7,1887, deposited with appellee to the credit of that account §566.54; against this account a check for §40 and one for §22.50 had been drawn by appellant and paid by the bank, leaving a balance of §504.04, to recover which this suit is brought. It is claimed on behalf of appellant that this deposit was made by him in his own name; that it was received, accepted and entered by appellee upon its books as his; that the greater part of it was deposited and to be appropriated for a certain specific purpose with the consent of the bank, and under this state of facts appellee had no lien, as a bank, upon the sum deposited for the debt of George D. Hayden, and had no legal right to apply such balance of the depositas a credit upon the note of George D. and Sarah Hayden, or set off such note against said balance. The state of facts so claimed to exist was denied on behalf of appellee, and on its behalf it is claimed the money was deposited by plaintiff as the money of George D. Hayden, and it was so understood and made known to defendant by plaintiff; that the plaintiff was acting with defendant in depositing this money as the agent of George D. Hayden in conducting the business out of which the mouey deposited was derived. The evidence introduced in support of these disputed facts by the respective parties was conflicting, but the trial court, who saw the witnesses and heard them on the stand while being examined as such, occupied a position and had an opportunity enabling it to determine more accurately and fairly the weight and credit to be given the testimony of each witness than is afforded this court, and has settled that conflict and determined the disputed facts in favor of defendant below. Such finding ought not to be disturbed unless it is manifestly and clearly wrong. We have carefully examined all the evidence contained in the record and are satisfied the court below was warranted in finding that plaintiff, as agent of George D. Hayden, deposited the money with the bank as George D. Hayden’s money, derived from his business then being carried on by plaintiff as his agent; that defendant was notified of these facts at the time said account was opened, and was never informed to the contrary, and that no part of the money so deposited was set apart or appropriated for any specific purpose with the knowledge or consent of the hank; and in saying this we arc not unmindful of the fact that Wade testified, after the balance of the deposit had been indorsed as a credit upon the note of George D. and Sarah Hayden, and plaintiff was told of it and made no objection, plaintiff told him there were some debts incurred he felt morally bound to pay, and exhibited a memorandum showing the nature and amounts thereof, aggregating §207.13, and said if this sum was allowed him he had no objection to such application of the balance, and thereupon witness, after consultation with his associates in the bank, agreed to the request and consented to allow him that sum. Ho lawful consideration supports such promise, and the next day the plaintiff repudiated the arrangement by bringing this suit.

If this finding of the court was justified by the evidence, the questions remaining to be decided are, could defendant below set off a debt of George D. Hayden against the demand sued for? And was the note upon which said balance was indorsed as a credit a debt of his? Both these questions, we- think, must be answered in the affirmative.

When appellant claimed and was known to be acting for George D. Hayden merely as his agent, his acts and contracts must be deemed to be the acts and contracts of his principal only, and “ involve no personal responsibility on the part of appellant.” Story on Agency, Sec. 261, et seq. And in an action by him to recover money due his principal, a debt of the principal may be set off. Huntington v. Knox, 7 Cush. 371. If the suit is brought in the name of the agent instead of the principal, upon any contract knowingly made by the former for the latter, the other contracting party will generally be entitled to make the same defense, and establish the same claims against the agent that he would be entitled to if the suit was brought in the name of the principal. Story on Agency, Sec. 404.

Where a depositor is indebted to a bank, the latter has the right to apply so much as may be necessary of the funds deposited, undisposed of and remaining in its hands, to the payment of his matured indebtedness. Commercial Bank of Albany v. Hughes, 17 Wend. 94; Morse on Banks and Banking, 27. But appellant insists that a bank has a right of set-off against a deposit only in a case where a depositor and debtor is the same person, and that here appellant is the depositor and his principal is the debtor; hence, under the rule, defendant was not entitled to the set-off claimed. In law, however, under the facts found, George D. Hayden was the depositor, notwithstanding the deposit was made by his agent. The authorities cited, and many others not cited, support the view we have expressed. If the finding of the trial court was justified by the evidence, the debt of George D. Hayden due defendant was properly allowed as a set-off against the demand sued for. Appellant claims, however, that the note noon which the credit of $504.04 balance of deposit sued for was .indorsed, was not a debt of George D. Hayden’s, but was a joint debt of him and Sarah Hayden, and therefore not a proper set-off against his separate demand. The note reads as follows:

“$1,000 Alton, April 22, 1887.
“ Hinety days after date I promise to pay to the order of Alton national Bank one thousand dollars, with interest at eight per cent, per annum until paid, for value received,'payable at the Alton national Bank.
“ Geo. D. Hayden,
“ Sabah Hayden.”

On this note appellee could maintain suit against George D. Hayden alone, and if so, no legal objection forbids its allowance as a set-off against any separate demand of his against appellant. Set-off of a joint and several note against the debt claimed to be due one of the makers is admissible. Stadler v. Parmlee, 10 Iowa, 23, White v. Rogers, 6 Blackf. 436, and numerous other cases announce this rule.

We conclude, therefore, said note was a proper set-off as a debt of George D. Hayden against the demand sued for, and the court below did not err in so holding.

• The judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Phillips, J.

text:
    Frank Freishenmeyer et al. v. Bernhard Lehmkuhl.

      Creditor’s Bills — Fraudulent Conveyances — Mortgage — Badges of Fraud.

    1. Upon a creditor’s bill seeking to have a mortgage declared fraudulent and the property named therein subject to execution, this court holds that the allegations of fraud are not sustained by the evidence.
    2. The omission of the wife of a mortgagor to sign the mortgage and the failure to provide in the note secured for the annual payment of interest, are not such badges of fraud as will sustain a decree declaring the mortgage fraudulent.
    S. An insolvent debtor may secure a dona fide creditor without being chargeable with fraud, although others are left unsecured.
    4. The burden of proof is upon one who alleges fraud.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Mr. Franklin A. McConaughy, for appellants.
    The law is well settled in this State that a debtor can always prefer one creditor to the exclusion of all others and pay him in full. Francis v. Rankin, 84 Ill. 169; Morris v. Tillson, 81 Ill. 607; Welsch v. Werschem, 92 Ill. 115; Tomlinson v. Mathews, 98 Ill. 178; Goembel v. Arnett, 100 Ill. 34; Storey v. Agnew, 2 Ill. App. 353; Axtell v. Cullen, 3 Ill. App. 527.
    Fraud is not presumed. Pratt v. Pratt et al., 96 Ill. 184; Jewett et al. v. Cook, 81 Ill. 260; Hatch et al. v. Jordan, 74 Ill. 414.

      The burden of proving fraud rests upon the part}’ alleging it. O’Neal v. Boone et al., 82 Ill. 589; Waterman v. Donalson, 43 Ill. 29.
    Both parties must contemplate fraud. Hessing v. McCloskey, 37 Ill. 341; Brown v. Riley, 22 Ill. 45.
    The creditor is not affected by notice of other claims. Axtell v. Cullen, 3 Ill. App. 527.
    It is not contended by counsel here that in a suspicions case the fact that appellants could not give , the exact amounts within a few fractions, some years having elapsed, that the mortgage is for five years, and not signed by wife, which are, perhaps, “badges of fraud,” “ear marks of fraud,” “circumstances of fraud,” “"evidence of fraud,” or “arguments of fraud,” might not have some weight; but when, as in this case, there is no fraud or suspicion of bad faith urged, and none can be, these circumstances amount simply to nothing. Suspicious circumstances, when surrounding a doubtful case, will, of course, he entitled to some, perhaps much, consideration; when the fairness and honesty of the transaction is demonstrated and unquestioned, then the circumstances can not overcome the fact which is proved; in a case, too, where we are only called upon to deny, not prove our case. Both appellants were called by complainant; testified in a straightforward manner as to the whole transaction; were not contradicted; and this was all the evidence.
    “Its only effect,” says an author, speaking of these circnmstances or arguments of fraud, “in general, is to require a more stringent proof of the consideration for the transfer and the good faith of the parties than would be demanded where no such suspicion of unfairness exists.” Bump on Fraudulent Conveyances, page 76, citing Terrell v. Green, 11 Ala. 207.
    The decree in this case is technically erroneous, and mu§t be reversed. It should have been in the alternative, giving the defendant Behrmann a certain time to pay off the complainant’s judgment before directing sale under execution. Patterson v. McKinney, 97 Ill. 41.
    Messrs. Tureer & Holder, for appellee.

      Section 4, chapter 59, Vol 1, p. 1196, Starr & 0., reads: “Every gift, grant, conveyance, assignment or transfer of, or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, -x- * sllall be void as against such creditors,” etc.
    A debtor in failing circumstances is only allowed to place his property beyond the reach of his creditors by making a general assignment of it, when he does so for the benefit of the creditors, by devoting it unreservedly to the payment of his debts, and not with a view to his advantage in delaying until a favorable time the appropriation of the property for such purpose. Nesbitt v. Digby, 13 Ill. 387; Merry v. Bostwick, 13 Ill. 409; Boies, administratrix, v. Henney, 32 Ill. 139; Phelps v. Curtis, 80 Ill. 113.
    A debtor can not convey to a bona fide creditor so as to hinder and delay other creditors. Merry v. Bostwick, 13 Ill. 398; Power v. Alston, 93 Ill. 587; Emerson v. Bemis, 69 Ill. 537; Moore, administrator, v. Wood, 100 Ill. 455; Lawsen v. Funk, 108 Ill. 507.
    In the case of Merry v. Bostwick, supra, the Supreme Court say: “We think the evidence does show that Bostwick was indebted to Leeker in some-amount; but this circumstance does not relieve the transaction from the taint of fraud in law. The statute makes void all conveyances made with the intent to delay, hinder, or defraud creditors of their just and lawful claims.”
    This doctrine has been approved in Reed et al. v. Nixon, 48 Ill. 324, where it is said: “If the object in making the mortgage was to hinder or delay creditors, the instrument was not purged, because the grantor may also have had some other purpose in view.” And also in Hansen v. Dennison, 7 Br. 77.
    If, then, the mortgage from Freischenmeyer to Behrmann was made to delay complainant in the collection of his judgment, it is void in law, even though Freisckenmeyei- owed Behrmann something.
   Phillips, J.

This was a creditor’s bill filed by appellee against appellant, charging the recovery of a judgment by appellee against Frank Freischenmeyer November 13, 1885, in the County Court of St. Clair county for the sum of §838.85, the issuing execution on that judgment November 20, 1885, return February 1, 1885, “no property found,” and charging defendants in execution as being insolvent. That prior to the rendition of the judgment, but after the indebtedness upon which the judgment was rendered was contracted, on the 23d of October, 1885, defendant in execution made a mortgage to Henry Behrmann, one of the appellants, to secure a note for the sum of 81,000, bearing interest at the rate of eight per cent, per annum, due five years from date, and to secure this note executed a mortgage on certain property in the bill described ; that the premises mortgaged was the homestead of the judgment debtor, and his wife did not join in the execution of the mortgage; avers the mortgage was fraudulent; that the note was without consideration and was made to defraud creditors, and asks to have tlie mortgage declared fraudulent and void and that the property mortgaged be declared subject to execution. Oath to answer is waived.

The answer to the hill denies all allegations except the making of the mortgage and that premises are occupied as a homestead, and alleges that the mortgage was given by the mortgagor to secure the mortgagee for money before that time advanced, and to indemnify him for assuming various indebtedness of the mortgagor on which the mortgagee was security. Avers the mortgage was given in good faith for a good and valuable consideration. Explications filed, and on hearing the defendants were called as witnesses by complainant in bill. The testimony of mortgagor is that the mortgagee had paid one note for 8154, and three notes of 8100 each, on which he was surety for the mortgagor, and on another note for 8310 on which he was surety, lie had taken up some. The names of payees of notes are given. Further states that mortgagee had advanced to him cash, a loan, in 1883, for 877, and in 1884 for 8^5i and then states that he can not give all the items.

The mortgagee, on being called by complainant, testified to same facts, but one of the notes, stated by the mortgagor as $100, he states to be $106, and names an additional note of $108, and the $310 note is stated to be $315, and states cash advanced the same amounts as given by the mortgagor, with an additional §50. Both witnesses state the mortgage was made in good faith to secure a valid indebtedness. The several amounts stated make up the amount of the note secured by mortgage. The value of the property mortgaged is stated to be §4,000 to §5,000.

This was substantially all the evidence in the case. The court entered a decree as prayed for in the bill.

The evidence does • not show that the note was without a consideration; on the contrary, it appears from the evidence that the mortgagor was actually indebted to the mortgagee in the amount of the note secured by mortgage in good faith. The mortgage to secure the same must then stand and be held valid and binding as between the parties, unless shown to be fraudulent in law or fact. It can not be held fraudulent because a debtor consents to secure a creditor for a debt, owing in good faith; nor is fraud to be presumed, but the burden oí proving it rests on the party alleging it.

The absence of evidence showing fraud in fact in this case then leaves, as the only question to be determined, whether there is fraud in law. The appellee insists that the fact of this note having been given on five years’ time, without the interest provided for being paid annually, and the fact that the wife of mortgagor did not sign the mortgage and release homestead, are such badges of fraud that this decree should be affirmed. We can not so hold. We do not in this case find any sufficient facts shown by this evidence on which the decree can be sustained.

The decree is reversed and cause remanded.

Reversed and remanded.


text:
    Joseph Snell v. The People of the State of Illinois.

      Criminal Law—Disturbance of the Peace—Indictment—Motion to Quash —See. 56, Criminal Code—Practice.

    1. Where an indictment charges a crime in the words of the statute, additional words may be rejected as surplusage.
    2. Where the certiflcate of the bill of exceptions does not show that it contains all the evidence and instructions, errors assigned touching these matters will not be considered.
    [Opinion filed October 19, 1888.]
    Appeal from the County Court of Wayne County; the Hon. E. C. Kramer, Judge, presiding.
    Mr. Rufus Cope, for appellant.
    Mr. J. R. Creighton, State’s Attorney, for appellee.
   Phillips, J.

This was an indictment under Sec. 56 of the Criminal Code. There are two counts, one charging the disturbance of the peace and quiet of a certain family; the other charging the disturbance of the peace and quiet of a neighborhood; in other respects the counts are the same. The charging part of the first count is, “ did disturb the peace and quiet of Lucy Mix, then and there residing, by loud and boisterous language, and by threatening to fight and by fighting and by other disorderly conduct;3 3 and the first error assigned is the overruling a motion to quash the indictment; and the objection taken is, that the words, “and by other disorderly conduct,” are so general that they do not charge any acts with sufficient certainty.

The indictment charges a disturbance of a family “by threatening to fight and by fighting,” in the words of the statute | and while under that section the indictment can not charge an offense except what is made an offense by the statute, still the use of the words, “ and by other disorderly conduct,” would not render an indictment had, that it must he quashed. Where the offense is sufficiently charged in other words in the indictment, these words, “ and other disorderly conduct,” may be rejected as surplusage, and still leave the indictment sufficiently charging an offense in the language of the statute under that section. There was no error in overruling the motion to quash.

The other points raised by the assignment of errors can not be considered by us, as the certificate to the bill of exceptions does not show that either all the evidence or instructions are incorporated in the record.

The judgment will therefore be affirmed.

Judgment affirmed.


text:
    George Forlouf v. John A. Bowlin et al.

      Trespass—Real Property—Trust Deed—Rent—Attornment—Evidence —Distress Warrant.

    1. The grantee in a deed of trust can not, after condition broken, without entry or attornment, proceed to collect rent from a person in possession who is not a party to such deed.
    2. It is proper to allow a distress warrant in the hands of a constable, although not served, to be introduced in evidence in an action of trespass to which he is a defendant, as going to show his reason for being present upon the occasion in question.
    3. In an action of trespass, the evidence being conflicting, this court sustains the finding for the defendants.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Perry County; the Hon. Amos Watts, Judge, presiding.

      This was an action brought by appellant against appellees in trespass. The declaration contained two counts—one quare clausum fregit, the other de bonis asportatis; a jury was waived and trial by court. The judgment for defendants, and plaintiff appealed. The opinion states the facts.
    Mr. E. W. S. Wheatley, for appellant.
    Mr. B. W. Pope, for appellees.
   Phillips, J.

- The appellant was tenant of John A. Bowlin, one of appellees, in certain premises in Jackson county, Illinois, for which rent was to be paid at the machine in kind, one-third of the crops raised. Appellant lived in Perry county, Illinois, on the E. W. J S. W. J- Sec. 33, T. 6 S., R. 1; W. 3d P. M., and hauled the grain in the straw from appellee Bowlin’s premises, in Jackson county, to the premises occupied by appellant in Perry county, there to be threshed.

This was in the fall of A. D. 1886. Some years prior thereto one August Heinzman, with Anna, his wife, executed a certain deed of trust to Joseph S. Slawson on said E. W. -| S. W. J- Sec. 33, T. 6 S., R. 1, W. 3d P. M., to secure the payment of one certain promissory note for the sum of $400, with interest from date at the rate of ten per cent, per annum, payable annually, due four years after date. Said note and deed of trust were of date January 12, 1878". The note was payable to Joseph N. Slawson and by him assigned and indorsed to John A. Bowlin, one of appellees. August Heinz-man died, and his wife, Anna, married appellant, and appellant and Anna, his wife, occupied such premises and farmed the same.

The deed of trust contained the following clause:

“ And it is hereby agreed by the first party that the sheriff of Perry county, Illinois, may sell said premises upon the conditions hereinafter named, in case of default in payment, to the second party or to any other person or persons, and convey, the same to the purchaser by deed. Together with .all and singular the tenements, hereditaments, privileges and appurtenances thereunto belonging or in anywise appertaining, with the rents, issues and profits thereof, and all the estate, interest and claim whatsoever of the said party of the first part, in law as well as in equity, in and to the premises hereby conveyed.”

After the note was indorsed to John A. Bowlin, and same being due, he claimed he was entitled to rent on said premises by virtue of the clause above quoted, and testifies that he notified appellant and his wife that if they remained on said premises another year he would claim rent for same, to which claim of appellee the appellant remained silent, so far as this proof shows.

In the fall of 1886, the appellee, John A. Bowlin, was by appellant notified that at a certain date he, appellant, would thresh the grain raised on appellee Bowlin’s premises, and he could get his rent at the machine in kind. Bowlin came with wagons and received that rent.

After receiving that rent, Bowlin claimed that by virtue of said deed of trust he was entitled to collect rent for the premises in Berry county occupied by appellant, and further claimed he had issued a distress warrant and pfiaced the same in the hands of one Charles Swigert, a constable, one of appellees.

Appellant denied the right of appellee Bowlin to collect rent, and denied all liability for any rent on the premises in the deed of trust described.

Whereupon appellee John A. Bowlin directed a levy of the distress warrant, and also directed Massoit Bowlin, one of appellees, to place on the wagon certain sacks of grain. Appellee Massoit Bowlin then seizing one of the sacks, appellant caught hold of the same sack, whereupon Massoit Bowlin struck and knocked down appellant. The machine was stopped and there was much quarreling, after which the appellees loaded one sack more than one-third of the grain raised on the premises in the deed of trust described, and hauled off the same.

Appellant brings his action of trespass and files bis declaration, containing two counts—one trespass guare clausum fregit, the other de honis asportatis—and to maintain the issue on his part shows the above facts.

Appellees, as a matter of defense, introduced evidence tending to show that after appellees had placed on the'wagon one sack, the appellant consented that appellee John A. Bowlin should take, as his rent, one-third of the grain raised on the premises in the deed of trust described, and that he should dispose of the same, and that should be a settlement of all lawsuits and difficulties between them; that the grain was hauled off, sold and credited on the note in the deed of trust described.

This claim of appellees that appellant consented to the delivery of grain as rent, and the same to be in settlement of all lawsuits and difficulties between them, is denied by appellant, and evidence is introduced tending to sustain him in that denial.

The appellees were there to receive rent of the Jackson county land on the invitation of appellant, or to aid John A. Bowlin in getting that rent. After receiving that, appellee John A. Bowlin claimed rent for the land in Ferry county occupied by appellant, and his right to have rent for the same was denied. Appellees’ claim that he was entitled to the same by virtue of the terms and conditions of the deed of trust above quoted can not be sustained.

Appellant was not a party to that mortgage; his right to the crop raised was by a right of occupancy that existed merely by consent of his wife, who had mortgaged the same, but Furlouf had never attorned to the appellee. It was true that there was condition broken, but there had never been an entry by the grantee in the deed of trust for condition broken, and even the mortgagor is not required to account to the mortgagee for rents and profits while he remains in possession. Moore v. Titman, 44 Ill. 367.

After condition broken the mortgagee may enter and render his security productive by the reception of the rents and profits. Id. But this appellant does not stand in a position that without entry for condition broken or attornment the appellee would have a right to distrain.

The appellee John A. Bowlin, however, was there to receive rent for his Jackson county land at the invitation of appellant. He took with him certain other parties, who are also appellees, to aid him, and also the constable, Charles Swigert, to whom he had delivered a distress warrant. That distress warrant was introduced in evidence, although the same had never been levied, and the admission of the distress warrant in evidence is assigned as error. The appellee Swigert, the constable, had the right to show the circumstances under which he was on the premises and that he was there with a di-tress warrant placed in his hands as an officer and the fact of the distress warrant being in his hands was proper for him to show. As the constable, Charles Swigert, was made a defendant in this action, he had a right to show that he acted in good faith and with reasonable prudence. To recover exemplary damages from him it must appear that he was actuated by malice or a reckless disregard of the rights of appellant. Becker v. Dupree, 75 Ill. 167.

To prevent a recovery of exemplary damages he had a right to show that he was there as an officer with a distress warrant and that he acted with reasonable prudence. There was no error in allowing the distress warrant to go as evidence on the trial.

There is here no count in trespass vi et armis, nor were any propositions of law submitted to the court to be held or refused, a jury having been waived and a trial by the court. The only remaining question raised by appellant is whether the evidence authorized finding defendants not guilty. The trial court had the evidence of the witnesses in reference to the direct issue as to whether the removal of the grain was consented to by appellant, and that the same was to be a settlement of all difficulties and law suits between them; that after the grain was all loaded 66 they shook hands on it,” and; to say the least, the evidence on this point was conflicting, but it can not be said there was no evidence tending to sustain this verdict, and where there is conflicting evidence to sustain the verdict, though the evidence may be conflicting, unless the verdict is manifestly wrong a new trial will not be granted. City of Chicago v. Ferguson, 60 Ill. 200; City of Galesburg v. Higley, 61 Ill. 287; Fitch v. Zimmer, 62 Ill. 126; White v. Clayes, 32 Ill. 325.

We can not say this verdict was manifestly wrong. Finding no error in this record the judgment will be affirmed.

Judgment affirmed.


author: Beeves, J.

text:
    Mary Price and Rebecca Foreman, Adm’rs, v. The American Bible Society and the Missionary Society of the M. E. Church of the United States.

      Corporations—Service of Process—Publication—Sec. 5, Practice Act— Proceedings in Rem.
    In an action in assumpsit against non-resident corporations, it is improper to sustain a motion to quash service because obtained by publication.
    [Opinion filed October 19, 1888.]
    Appeal from Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. G. & G. A. Koerner, for appellants.
    Mr. Geo. P. Strong, for appellees.
   Beeves, J.

This is an action of assumpsit. The defendant corporations being non-residents of this State, and having no agents of any kind upon whom service of summons could be made, the writ was returned with this indorsement by the sheriff:

“ This writ is returned not served, no president, clerk, secretary, superintendent, general agent, cashier, principal or any agent of the within named American Bible Society and Missionary Society of the Methodist Episcopal Church being found in my county.”

Thereupon the plaintiffs filed an affidavit, setting forth that the American Bible Society and the Missionary Society of the Methodist Episcopal Church are non-residents of the State of Illinois, and reside in the city of Hew York, State of Hew York; that a summons had been issued to the sheriff of St. Clair county in the cause, and returned indorsed as above set fortli. Publication was then made under Sec. 5 of the practice act, and in due time proof made of such publication and the mailing of copies of the same to the Bible Society and the Missionary Society, at Hew York City, Hew York.

The defendants moved the court to quash the service by publication, limiting their appearance to the purpose of said motion, which motion was sustained by the court below. To which plaintiffs excepted, and the plaintiffs declining to proceed further with the case, it was dismissed by the court. By appeal appellants, plaintiffs below, bring the case to this court.

Sec. 5 of the practice act reads as follows:

“An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not he found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said company found in the county, and in case the proper officer shall make return upon such process that be can not find in his county any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any other agent of said company, then such company may be notified by publication and mail in like manner and with like effect as is provided by Secs. 12 and 13 of an act entitled: “An act to regulate the practice in courts of chancery,” approved March 15, 1872.

It is conócded that appellants complied strictly with this section in bringing the appellees into court by publication. It is contended, however, that this provision of the statute only relates to proceedings in rem, and if intended for any other case, is unconstitutional and void. The first contention is based upon the fact, as claimed, that only in a proceeding in rem could any judgment be rendered uj)on such a service, and as to the second point, it is argued that if any judgment should be rendered upon such a service, except in a proceeding in rem, it'would be unconstitutional and void, and therefore the statutory provisions authorizing it would be unconstitutional and void. What judgment, if any, could be rendered upon the service had in this case, does not seem to us to be the question presented here for decision. Was the service by publication properly quashed?

This is the only question presented by this record. Whether upon the hearing such a case could be made as would authorize a judgment against appellees, can not now be determined, because we can not know what the case made will be.

We think the Circuit Court erred in quashing the service. The case is reversed and the cause remanded.

Reversed and remanded.


text:
    The City of McLeansboro v. Annie Lay.

      Municipal Corporations—Defective Sidewalh—Notice—Personal Injuries —Contributory Negligence—Instructions—Evidence.

    1. Reasonable diligence must be used by a municipal corporation to keep its sidewalks, wherever located, in a reasonably safe condition.
    2. Notice will be presumed where a sidewalk has been out of repair a considerable length of time.
    3. In an action against a municipal corporation to recover for injuries suffered through a defective sidewalk, this court, upon a review of the evidence, declines to interfere with a verdict for the plaintiff.
    [Opinion filed October 19, 1888.]
    In ebbob to the Circuit Court of Hamilton County; the Hon. C. C. Boggs, Judge, presiding.

      Messrs. A. M. Wilson and T. B. Stelle, for plaintiff in error.
    “ So far as the question of notice to a city of defective sidewalk is concerned, the law is well settled that the city will not be held liable unless it has notice of the defective walks, or unless it has notice of such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent person to such knowledge.” City of Chicago v. Murphy, 84 Ill. 224; City of Chicago v. Stearns, 105 Ill. 554.
    A city is not always liable for an injury caused by a defective sidewalk. Notice of the defect must be shown, or circumstances from which it may he inferred. City of Peru v. French, 55 Ill. 318; City of Chicago v. Murphy, 84 Ill. 224.
    It is the duty of a person walking on the sidewalk to use his eyes to direct his footsteps, and failing to do so is such negligence as to preclude a recovery. Village of Kewanee v. Depew, 80 Ill. 119; City of Quincy v. Barker, 81 Ill. 300.
    A city is only required to keep its sidewalks in a reasonably safe condition. Rockford v. Hildebrand, 61 Ill. 155; Village of Gibson v. Johnson, 4 Ill. App. 288; Chicago v. McGiven, 78 Ill. 347; Gridley v. Bloomington, 88 Ill. 47; City of Quincy v. Barker, 81 Ill. 300; City of Bloomington v. Reed, 2 Ill. App. 542; Chicago v. Bixby, 84 Ill. 85; Grayville v. Whitaker, 85 Ill. 349.
    A judgment will be reversed when the verdict is manifestly against the weight of the evidence. Reynolds v. Lambert, 69 Ill. 495; C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 226; Smith v. Slocum, 62 Ill. 354; Chicago v. McCarthy, 75 Ill. 602; Rock Island v. Vanlandschoot, 78 Ill. 485.
    It appears in evidence that the city used reasonable efforts to keep its sidewalks safe, and hence no recovery can be had. Chicago v. McGiven, 78 Ill. 347; Rockford v. Hildebrand, 61 Ill. 155; City of Quincy v. Barker, 81 Ill. 300; City of Gilman v. Haley, 7 Ill. App. 349.
    Messrs. R. R. Barnett and Walker & Hails, for defendant in error.
   Green, P. J.

This was an action in case, brought to recover damages for personal injuries, alleged to have resulted from defendant’s negligence in suffering its sidewalk to be and remain in bad and unsafe repair, and the planks to remain broken and unfastened, by means whereof plaintiff, in passing along and upon said sidewalk, tripped and stumbled against one of the unfastened planks, and was thereby thrown and fell and received the injuries complained of. Issue was joined on the plea of “ not guilty.” The cause was tried by a jury. A verdict was rendered, finding defendant guilty and assessing plaintiff’s damages at $125. Defendant’s motion for a new trial was overruled and judgment entered on the verdict, to reverse which defendant sued out this writ of error. It is insisted on behalf of plaintiff in error, this judgment should be reversed because plaintiff was not in the exercise of reasonable care at the time she was injured, because improper remarks were made by her attorney in addressing the jury, because the court refused to give defendant’s sixth instruction as requested, and because the evidence did not establish the negligence charged. In our opinion, however, the judgment ought not to be reversed for the causes mentioned, or any of them. , 1

By the testimony of plaintiff and her sister it is sufficiently shown that at the time of the injury plaintiff was not guilty of any negligence contributing thereto. It also appears, so soon as objection was made to what was being said by plaintiff’s counsel in addressing the jury, he at once ceased the further use of any objectionable remarks, and the small amount of' damages awarded indicate that the remarks which were made had not created any considerable prejudice in the minds of the jury against defendant.

The refused instruction reads as follows: “If you believe from the evidence that the walk in question was in the outskirts or more sparsely settled part of the city, where the travel was not frequent, then the city authorities would not be held to the same degree of diligence in seeing that the walk was secure, that they would if it were in the more densely populated parts of the city, or along the more frequently traveled thoroughfares.”

This instruction was calculated to mislead the jury if given, and it was properly refused. The degree of diligence required of the city by the law in keeping its sidewalks on public streets in reasonably safe condition for the use of pedestrians, is not less in one part of a city than another. Reasonable diligence must be used in the performance of this duty with respect to all such sidewalks.

Upon the question of defendant’s negligence as alleged, the evidence, as is usual in this class of cases, was conflicting. Defendant’s witnesses give it as their opinion the walk was a good one and in good condition, but none of them were present at the time and place of the injury, and taking all their testimony together, the jury had reason to doubt the correctness of such opinion. One of these witnesses, the mayor observed the condition of this walk but twice only; once about ¡November 1, 1886, when his attention was called to its dangerous condition, caused by the earth being washed away from beneath it, and again between the 1st and 8th of ¡November. On these occasions he says he observed no loose, broken or rotten ¡flanks in the walk.

Jones and Robinson, aldennen of the city and witnesses on its behalf, went together to examine this sidewalk in September, 1886. Jones said he saw where the earth had been washed out at the same place spoken of by the mayor, but did not see any other defect in the sidewalk, or any loose or broken planks. Robinson testified he noticed two or three loose planks in the walk on that occasion, but otherwise it was in good condition. From this it would appear that, although loose planks were in the walk, Jones did not notice them, and Robinson did, and Jones observed the dangerous condition of the walk where the earth was washed out, but Robinson, in company with him, with equal opportunity to see, did not observe it. These were the only examinations of this walk made by the city officials as shown by the record. Three of the remaining four of defendant’s witnesses testify they saw loose planks in the walk in the fall of 1886. One of them also then observed rotten planks therein, and another on cross-examination admitted some of the planks he then saw there might have been rotten. It' further appears that on November 6, 1886, when plaintiff, who had been on this walk but twice before, was accompanied by her sister and walking side by side with her, the sister stepped on a plank in this sidewalk, near its end next the street, and the other or inside end of the plank was thereby thrown up, tripping the plaintiff and causing her to fall and injure herself. Both these witnesses testify they saw the plank as it was thus thrown up, or immediately after, and the inside end of it was rotten. These witnesses were not impeached nor their testimony contradicted; it was shown also this sidewalk had been built two or three years before the injury to plaintiff; that it was constructed by laying stringers lengthwise with the street. On these, boards were nailed, with their ends projecting over the stringers, so that if two persons were walking together on the walk, and one stepped quicker than the other on one end of a board so laid, the other end of it would be thrown up if not securely fastened, and thereby trip the other person as the latter moved forward. The material used in constructing this sidewalk was partly lumber taken from an old sidewalk, and the balance new lumber.

Evidence was also introduced showing that old boards or rotten boards would not hold nails well, and that in August and September, 1886, in the walk in front of Millard’s, where the plaintiff fell, there were loose boards, some of them rotten, and these were nailed down in October. One witness for defendant also testified the walk was old and shackly; that he usually walked in the middle of it, and if two persons walked on it side by side and any of the boards were loose they were liable to fly up. It further appears the city official, when a man was sent to repair this walk, directed him to nail down all loose boards. That this walk was out of repair at the time and place of injury, and the board which was thrown up and caused the injury was rotten at the end and therefore could not be securely fastened, we think was clearly proven, and that it had been in that condition a sufficient length of time for a reasonable diligence on the part of defendant to have discovered and remedied the defect with a new board, admits of little doubt in the light of all the evidence. In addition to this, it appears this walk had been built a length of time sufficient for the city authorities to have learned how it was constructed, and the kind of material used, and under the circumstances no other notice of its condition would be necessary. Ordinary observation was sufficient to inform the city authorities that this walk, constructed as it was, and with such material as was used, might not be reasonably safe. The law imposed the duty upon defendant to keep this sidewalk upon its public street in a reasonably safe condition for persons to walk over, and when it got out of repair so that it was unsafe and insecure, and so remained for a considerable time, notice of its defective condition will be presumed. City of Chicago v. Dalle, 115 Ill. 386; City of Aurora v. Hillman, 90 Ill. 63; City of Springfield v. Doyle, 76 Ill. 202.

We are satisfied this case was fairly submitted to the jury under instructions stating the law very fully and clearly. The verdict was warranted by the evidence, and the judgment is affirmed.

Judgment affirmed.


author: Greer, P. J.

text:
    City of Salem v. Maggie E. Harvey, Administratrix.

      Municipal Corporations—Negligence—Defective Bridge—Next of Kin— Damages—Questionfor Jury—Personal Injuries.

    1. The right to maintain an action for compensatory damages is created when the defendant, by its wrongful act or negligence, caused the death of one who leaves next of kin surviving and has contributed to the support of some one or more of them.
    2. The question as to how much of the judgment recovered each of the next of kin of the deceased is entitled to receive, is for the Probate Court to determine.
    3. The measure of the damages in such cases is a question for the jury, subject to the rules that compensatory damages only are recoverable and that a finding which is evidently the result of passion or prejudice Will be set aside.

      [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Marion County; the Hon. Amos Watts, Judge, presiding.
    Messrs. M. Schaeffer and J. E. Bryah, for appellant.
    We insist that the evidence shows no such wrongful act, default or neglect on the part of the officers of the city as would make the city liable in damages.
    Absolute security is not demanded. Ordinary care or diligence is all that is required from the city. City of Peru v. French, 55 Ill. 317; City of Bloomington v. Bay, 42 Ill. 503; City of Chicago v. Dalle, 115 Ill. 386; City of Springfield v. Doyle, 76 Ill. 202; Town of Grayville v. Whitaker, 85 Ill. 439.
    We insist, also, that in this case there is no such next of kin of the deceased as those specified in our statute (Chap. 70, Sec. 2) as entitled to damage on account of the death of Jennie Harvey. She was not a minor. She owed no one any services; no one was dependent upon her or had any claim against her; not even doctor bills or funeral expenses. Ho pecuniary injury. Who of these next of kin lost one dollar by the injury or death of Jennie Harvey? Certainly there can be no recovery for bereavement, loss of society, grief or pain or wounded feelings. City of Chicago v. Major, 18 Ill. 349; Chicago & R. I. R. R. Co. v. Morris et al., 26 Ill. 400; C. and A. R. R. Co. v. Shannon, 43 Ill. 338; I. C. R. R. Co. v. Weldon, 52 Ill. 290; I. C. R. R. Co. v. Baches, 55 Ill. 379; Holton v. Daly, Adm’r, 106 Ill. 131; Quincy Coal Co. v. Hood, Adm’r, 77 Ill. 68.
    We further insist that under the authorities above cited, as well asunder the instructions of the court as given at the instance of defendant upon the evidence in this cause, the verdict and judgment could not, even on the theory of guilt of the defendant, be for more than nominal damages. There is absolutely no evidence of pecuniary injury or loss by any of the next of kin. A misapprehension of the facts, or a total disregard for the instructions of the court, must have actuated the jury,.and the court erred in not setting the verdict aside. In this class of cases, in which such strong appeals are made to the prejudices of the jurors, courts should not hesitate to require full compliance with the requirements of the law to sustain a recovery.
    Messrs. Thomas E. Merritt and Heery 0. Goodrow, for appellee.
   Greer, P. J.

This action was brought by appellee, administrator of Jennie Harvey, deceased, against the city of Salem, to recover of it damages for the benefit of her next of kin, for negligently causing the death of the intestate. The suit was instituted under and by virtue of the provisions of Chap. 70, Starr & C. Stat., 1290.

A verdict for §2,000 was returned, of which sum plaintiff remitted §500 and judgment for §1,500 was then rendered for plaintiff, to reverse which the defendant appealed. The negligence averred is, that appellant wrongfully and negligently suffered and permitted a bridge upon its street to be and remain in a bad and unsafe condition and the railing broken and unfastened. As deceased was passing along and upon the bridge in a buggy, the horse attached thereto became frightened, stopped, and backed the buggy against the broken and unfastened railings, and the buggy, with deceased therein, was thrown off the bridge, and fell a distance of about fifteen feet from the top of the bridge upon the ground, whereby she received the injuries that caused her death.

2no ruling of the trial court in admitting or refusing to admit evidence, or in giving or refusing instructions, is challenged l>y appellant, or suggested as a reason for reversal; but the principal points we are invited to examine relate to questions of fact. And at the outset we desire to say that, after carefully examining all the evidence, we are satisfied the jury were warranted by it in finding the defendant guilty of the negligence as charged; that by reason of such negligence plaintiff received the injuries which caused her death, and that no negligence on her part or on the part of the person driving the horse contributed to bring about or cause the accident. The bridge in question was in a public street in the city of Salem; the law required appellant to keep said bridge in a reasonably safe condition for public travel; this duty it failed to perform, and at the time of the injury the bridge was unsafe and insecure as averred, and this defective condition had existed a sufficient length of time for defendant below to discover and repair the defect by the exercise of reasonable care and diligence; hence, no other notice of the unsafe condition was required to create liability for such negligence. Chicago v. Dalle, 115 Ill. 386.

It is insisted, however, on behalf of appellant, that no next of kin of deceased, as specified in the statute, survived her, who are entitled to damages on account of her death, because she was not a minor, owed no service to any of her surviving kin, nor were any of them dependent on her; hence only nominal damages could be awarded, and the damages alloured were excessive. The right to maintain this kind of action and recover more than nominal damages is created when the defendant, by its wrongful act or negligence, causes the death of one who leaves next of kin surviving, and has contributed to the support of some one or more of them, and the facts bring this case within the operation of the statute. Deceased lived with her father, mother and sister. Her father was a carpenter, and worked when he could get work; her mother was an aged lady in bad health; deceased left two brothers who were married, and were not dependent on her; the sister also supported herself. The evidence shows deceased did work at home when not employed elsewhere, and contributed to the support of the family as much as she could; that she was strong and healthy up to the time of injury, and was industrious; that she taught school in her neighborhood a summer term immediately prior to the time she was injured, and had then been employed to teach the winter term at an increased salary. These being the facts, it would be unreasonable to hold that nominal damages only could be recovered, even if the two surviving brothers and sister were not dependent on her, and she did not owe service to her parents. The question of .how much of the judgment recovered each of the next of kin will be entitled to, is to he settled by the Probate Court when the administratrix is called upon to make distribution. Conant v. Griffin, 48 Ill. 410; R., R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 190; I. & St. L. R. R. Co. v. Whalen, 19 Ill. App. 316.

Upon the question of the amount of damages recoverable in this class of cases, our courts have frequently said, how damages are to be estimated must be largely left to the discretion of the jury; and this is necessarily so, hut subject to the rule that compensatory damages only are recoverable, and that findings which are evidently the result of passion or prejudice will be set aside. This court has said, in I. & St. L. R. R. Co. v. Whalen, supra, “ There are no exact rules by which the pecuniary loss can be estimated, and hence the damages must be left largely to the jury.” C. & A. R. R. Co. v. Shannon, 43 Ill. 346; Chicago v. Scholten, 75 Ill. 468.

In view of all the facts disclosed by the record, we can not hold the verdict to have been the result of prejudice or passion on the part of the jury, or that the damages recovered are excessive, or other than compensatory, and the jury were instructed most fully and favorably for defendant below upon every matter material for its protection against an improvident finding. We perceive no error requiring the reversal of the judgment appealed from, and the same is affirmed. Judgment affirmed.


author: Gjgeen, P. J.

text:
    Voorheis & Miller v. Hugh L. Bovell, Administrator.

      Administration—Action by Administrator—Set-Off—Recovery for Services—Evidence—Instructions.

    In an action brought by an administrator to recover .for services of his intestate as manager of a store for a period of about six years before his death, this court, upon a review of the evidence, which is conflicting, holds that it sustains the judgment for the plaintiff.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Clay County; the Hon. O. C. Boggs, Judge, presiding.
    Messrs. Wilson & Hutchinson, for appellants.
    Messrs. Callahan & Jones, for appellee.
   Gjgeen, P. J.

Bovell, administrator of the estate of Howard B. Lutes, recovered a judgment in the court below for $2,000 against appellants for the services of Lutes as manager of their store in Robinson, Illinois, for five years and about ten months; to reverse this judgment appellant took this appeal. In April, 1879, Lutes Bros, there failed and made an assignment. The assignee, by order of the County Court, sold, and the appellants bought for $1,600 all the assets of the bankrupt firm, which included stock of goods, notes, accounts, and also $613.10 cash collected by the assignee for goods sold by him from the stock before appellants purchased. This bankrupt estate inventoried $1,83745, and Lutes Brothers, at the time of the assignment, owed appellants $3,033.90, on which debt the assignee paid them a dividend of $617.10 out of the $1,600 received for said assets. The stock of goods remained in the store and plaintiff’s intestate took charge of and managed the business of appellants there up to the time of his death, in March, 1885. These goods were put in the stock by appellants at a valuation of $3,120.95, and the firm is credited and merchandise charged that amount therefor on the books. Inasmuch as we find no error in modifying defendants’ fourth instruction, and no serious objection to the instructions given for plaintiff to the jury, we have left for our consideration hut this one other question: Was the jury warranted by the evidence in their finding for plaintiff? It is insisted on behalf of appellant that the evidence would not justify the jury in finding appellee entitled to recover upon the quantum meruit count in his declaration, but establishes the fact Lutes was to receive as full compensation for his services one-half of the net profits of the business he was managing, less balance due appellants from Lutes Brothers remain'ng unpaid after deducting $617.40 dividend paid them by assignee, and that the note of the intestate for $150 pleaded as a set-off and the amount drawn by him from the business as shown by the evidence, together amount to more than one-half the net profits less said balance, and hence his estate was indebted to appellants when this suit was brought. Without lengthening this opinion by a detailed statement "of the account between the intestate and appellants as we think it ought to be stated, we are satisfied from the evidence, if Lutes’ account is given the benefit of one-half the profits on the purchase of assets bought by appellants at a net cost of $986.81, and the benefit of correcting some errors in footings that appear in the accounts to his disadvantage, and allowing him $450 per year in addition to half the net profits, the verdict might be sustained even upon the theory that the compensation of Lutes was to depend upon the profits of said business; and we are further of the opinion the jury were justified by this evidence in finding for appellee on the quantum meruit count in his declaration.

The j ury was furnished with evidence giving different versions as to the kind and character of com pensation Lutes was to receive. For the appellants, Harper, testifying from his recollection of a conversation or conversations between Voorheis and Lutes the day after he sold the assets, says he understood Lutes was to manage the business, and was to have an equal interest in the profits thereof; from these profits the debt due appellants from Lutes Brothers, less dividend received, was to he paid, that his best recollection is, said debt was to be paid out of the profits from this purchase and the business generally.

Ferriman testified that Lutes, in a conversation with him in Cincinnati, in 1883, when witness was trying to sell him some goods, said he was managing the store, and Voorheis & Miller furnished the goods; he got half the profits and was r.llowed $450 a year to live on; that he did not know whether Lutes said the $450 was to be taken out of his share of the profits, or whether he was to have that much in addition to his share of the profits.

Oliver testified that Lutes told him, in the fall of 1884, in the store at ¡Robinson, in reply to the question, How are you running the store?” “I am running it this way: I go to Cincinnati and select the goods; Voorheis & Miller pay for them; I bring the goods here and sell them, and out of the proceeds pay the expenses, and divide the profits by two, and I get one half.”

The appellee, on his own behalf, testified, as administrator he called on appellant Miller, and asked for Lutes’ account with the store, whereupon Miller gave him a written statement (read in evidence), in which Lutes was charged with the sums of money drawn by him daring the years he was employed, and credited with salary for five years ten and a half months at $450 per year, and being then asked by appellee if that was the actual condition of Lutes’ account, Miller replied: “ Lutes has not a dollar interest in the store or in the profits;” and Miller, when called to rebut this testimony, admitted the truth of it. It thus appears the jury heard several versions of the kind and character of compensation Lutes was to receive. If Harper’s evidence was relied on by itself, the jury might have found the compensation was to be half the profits, less the amount of a certain debt. From Ferriman’s testimony they might have found Lutes was to receive half the profits and $450 a year; from Oliver’s, that his compensation was to be one-half the net profits, and from appellee’s testimony', Miller’s admission, the written statement of account, and the fact that no credit is given in any account on the books to Lutes for a share of the profits during the whole time he was employed, the jury could just as fairly find the compensation of Lutes was not to be fixed upon the basis of profits. Miller, who presented the statement and made the reply to appellee, was then inquired of by one having a right to the information sought; he was called on to speak by one having a right to receive a true answer; he then had as full and accurate knowledge whether Lutes was to be compensated with a share of profits as Lutes had when he made the declaration attributed to him, and if the jury chose to believe Miller’s statement, fortified as it was by other circumstances, rather than Harper’s understanding of the matter, or the declarations of Lutes to Ferriman and Oliver, we see no good reason why they might not do so. Miller, by the written statement, recognized the fact that Lutes was to have a salary, and did not claim the amount named was the sum fixed or agreed upon, but when asked if that was the actual condition of Lutes’ account, merely answered, “ Lutes has not a dollar interest in the store or in the profits.” This would not, probably, have been his reply if the amount of the salary was agreed upon; hence the jury had the right to conclude that Lutes was to receive for his services such salary as appeared from the evidence they were reasonably worth, and find a verdict accordingly. This was done, and the verdict was for a sum not larger than the evidence warranted, after deducting from the salary earned the amount of all money drawn by Lutes.

We do not think the verdict should be disturbed, and the judgment is affirmed.

Judgment affirmed.


text:
    James M. Anderson & Co. v. William H. Dezonia.

      Master and Servant—Contract of Hiring—Traveling Salesman—Special Agreement—Uecovery of Wages—Evidence.—Instructions—Usage.

    In an action to recover for services performed by the plaintiff as a traveling salesman, the contention being as to whether the compensation was to be a commission upon sales or a, regular salary, this court, upon a review of the evidence, declines to interfere with the verdict for the plaintiff.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Jackson County; the Hon. O. A. Habkeb, Judge, presiding.

      Mr. W. W. Baer, for appellants.
    Messrs. G. W. Smith and Hill & Martin, for appellee.
   Green, P. J.

This cause has been twice tried in the court below, with a like result; in each instance the jury returned a verdict for appellee; the record of the first trial was before us on appeal, and the case is reported in 23 Ill. App. 422. In the opinion it is said, the recovery was evidently had upon a special agreement relied upon by appellee, whereby appellants were to pay him a salary, which agreement consisted of an offer made in a letter in reply to an inquiry made by appellee and his answer thereto, and the letter is the same one referred to by witnesses in this record. It is further said in the opinion, the letter contemplates further action before the amount to be paid should be fixed, and because of this and because from the proof it appears that the parties did not treat it as a special contract of hiring, the court was not convinced it should have the construction contended for. By the record now before us it appears plaintiff below claimed a right to recover upon two theories—one under a special contract for a salary of $100 or $125 per month made with defendants through their agent, Carter, or in case the jury did not find from the evidence such special contract had been made, then he was entitled to recover the amount his services were reasonably worth.

That Carter was authorized to employ a traveling salesman for the defendant is sufficiently shown by the testimony of plaintiff and witness Powell, if the jury believe them in preference to the other witnesses testifying to the contrary; and we are not willing to hold upon an examination of this record that .there was not evidence of a special contract by a])]) ell ants to pay appellee a salary not less that $100 per month and his expenses, not to exceed $125 per month, and evidence sufficient to justify the court in giving the instructions excepted to by appellants. Plaintiff testified he lived at Cairo, had known Carter eight or nine years; about February 8,1886, wrote to Carter at St. Louis, asking him if he knew of an opening in St. Louis for a man who had eight or nine years’ experience on the road as a salesman; that he received a reply to that letter from Carter, written upon one of defendants’ letter-heads, stating J. M. Anderson wanted a man to put in northwest Missouri, which territory had been idle for three months, directed plaintiff to come at once, that his salary would be §100 or §125 per month, and stated where plaintiff could move his family so he could be at home every Saturday. Plaintiff also testified he knew Carter was in defendants’ employ when he wrote, and on receipt of reply to his application telegraphed defendants lie would be up on Monday, and did report in person at their office in St. Louis that day; that before going out on his trip, Carter told him lie would have to itemize liis expenses, which would be limited to §125 per month, and ho did keep an itemized statement of them, and furnished it to the house; that he considered lie was working on a salary offered through Carter.

Barkley testified he knew plaintiff intimately, and also knew Carter and J. Anderson; that in January or February, 1S86, plaintiff showed him a letter signed by Carter, of the house of J. M. Anderson & Co., written on aletter-Iiead of that firm; that he. read the letter; it said plaintiff’s salary would be from §100 to 8125 per month; the territory mentioned was northwest Missouri; think it suggested where he should take his family.

Powell testified he had known plaintiff eight years, and worked as a traveling salesman for defendants over a month in 1886; was employed by Carter; defendants referred him to Carter; he made the terms; that in the early part of 1886, at defendants’ office, told Carter he employed Dezonia on a salary, and did not see why he could not give witness such. Carter replied he knew him so long and had so much confidence in his selling goods that they gave him the benefit of it. There was evidence also showing that when salesmen were paid a salary they were required to keep an account of their expenses, and were not when working for a commission on sales. Carter, who testified for defendants, said he wrote to plaintiff that defendants wanted a man to travel in northwest Missouri; that the man who had worked that territory and was discharged was a good salesman and was paid $100 a month salary and allowed $125 for expenses; thought he would like the territory and make a success of it; if so, it would pay him a salary of $100 to $125 per month; did not promise plaintiff a salary because he had no authority. Both defendants denied a salary was to be paid plaintiff, and one testified that béfore plaintiff started on his second trip he asked to be allowed a salary, but witness replied the best he could do was to pay him four per cent, on the gross sales; that plaintiff then left, seemingly dissatisfied, was absent about ten days, then returned and started out on a trip, accepting, as witness supposed, the proposition made to him. The other defendant also testified that before plaintiff started in to work for them he said he preferred to make a trial trip, with the understanding that the firm would pay what his services were worth; that on his return the firm could arrange about his salary in the future, and was satisfied it would pay him what his services were worth. This was the only agreement made by the firm, and the firm never had any contract with plaintiff to pay him a salary. Carter did not deny saying to Powell what the latter testified to, but said he did not remember such conversation, and was not willing to swear that he did not have it. Plaintiff denied all the material matter touching his employment and how he was to be paid as testified to by the defendants. It does not appear that on this branch of the case there was a contest as to whether the salary was fixed by the terms of the letter, or the amount was to be determined by plaintiff’s success in selling; but appellants contended there was no contract to pay a salary to appellee, and he was to work for a commission, while appellee denied this and insisted he was to be paid not less than $100 a month salary. The only evidence tending to support the contention of defendants that appellee was to work for a commission was the testimony of the one defendant above quoted and denied by appellee. In this conflict of testimony as to the language of the letter and the acts and conversations of the parties, the instructions excepted to were properly given. The giving of them evidently mode no difference in the result, as the amount of the verdict was based upon a compensation of not more than §100 a month, which was the lowest sum mentioned in the letter, and if the jury did not find a special contract proven, under the instructions given, they were fully justified in allowing appellee quite as large a sum as §100 per month for the reasonable value of his services as shown by the evidence. The claim set up by appellants, that by the usage and custom in St. Louis, in the absence of a special contract, plaintiff’s compensation would be fixed at not more than four per cent, commission on his gross sales, is untenable. We see no reason for setting aside the verdict or reversing the judgment, and the same is affirmed.

Judgment affirmed.