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    The Western Union Telegraph Company v. L. W. DuBois.

      Telegraph Companies—Error in Transmitting Message—Suit liy Recipient—Parties—Agency—Damages.

    Whore a telegram as delivered states’a price lower than in the original, the receiver who has ordered goods on the faith thereof, may maintain an action in his own name against the telegraph company for the excess in price which he has been required to pay.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Tord County- the Hon. Alfred Sample, Judge, presiding.
    Messrs. Gross & Broadwell, for appellant.
    The acceptance of an offer or proposition transmitted by te^graph creates a contract between the sender and receiver, the terms of which will he evidenced by the messages. Dublé v. Batts, 38 Texas, 312; Trevor v. Wood, 36 N. Y. 307; Scott & Jarnigan on Telegraphs, Sec. 347; Bishop on Contracts, Sec. 322.
    A person selecting the telegraph as a means of communication, makes the telegraph company his agent, and he is bound by the message as delivered to the person addressed. W. U. Tel. Co. v. Harris, 19 Ill. App. 347, 354; Morgan v. The People, 59 Ill. 58; Durkee v. Vermont Cent. Ry., 29 Vt. 127; Dunning v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. (9 Tiff.) 307; Saveland v. Green, 40 Wis. 431; Wilson v. Minn. & N. W. R. Co., 18 N. W. Rep. 291; Scott & Jarnigan on Telegraphs, Secs. 345, 347; Bishop on Contracts, Sec. 328.
    The relation between the telegraph company and a person to whom a message is addressed, is not contractual. They are not in privity. It is only when the person to whom the message is addressed is the one interested in its correct transmission, and by whom the expense of sending it is borne, that he will be regarded as the one with whom the contract is made. De Rutte v. N. Y. Albany, etc., Elec., etc., Tel. Co., 1 Daly, 547; S. C., 30 How. 403.
    Messrs. Tipton & Moffett, for appellee.
    Without regard to what the English rule may be, the American rule, and especially the rule in this State, is, that “ there is sufficient privity of contract between the receiver of the message and the company to enable the former to maintain an action against the latter for negligence, although the price of transmission was paid by the sender.” 6 Wait’s Actions and Defenses, p. 17; Aiken v. Tel. Co., 5 S. C. 358; New York Tel. Co. v. Dryburg, 35 Pa. St. 298; W. U. Tel. Co. v. Valentine, 18 Ill. App. 57; W. U. Tel. Co. v. Pope, 11 Ill. App. 289; W. U. Tel. Co. v. Hope, 11 Ill. App. 289; Ellis v. Am. Tel. Co., 13 Allen, 226; May v. W. U. Tel. Co., 112 Mass. 90; Ellwood v. W. U. Tel. Co., 45 N. Y. 549.
    The delivery of the message by the company to the sendee amounts to a representation to him that it has been employed to transmit the intelligence it contains, which, if untrue, through the negligence of its servants, constitutes a misfeasance for which the company is liable to the receiver. Bigelow on Fraud, Ch. 1, Sec. 3; May v. W. U. Tel. Co., 112 Mass. 90.
    It is conceded that there was a mistake in the telegram as delivered to appellee and upon which he acted. And as the company offered no excuse for the mistake, it is attributable to its negligence. Tyler, Ulmon & Co. v. W. U. Tel. Co., 60 Ill. 440; W. U. Tel. Co. v. Tyler, 74 Ill. 168; Pope v. W. U. Tel. Co., 9 Ill. App. 283; Pope v. W. U. Tel. Co., 14 Ill. App. 535; W. U. Tel. Co. v. Pope, 12 Ill. App. 289; W. U. Tel. Co. v. Harris & Comstock, 19 Ill. App. 347; W. U. Tel. Co. v. Valentine, 18 Ill. App. 57.
    It was the duty of appellee when damages would necessarily follow by the negligent act of appellant to take such action in the matter as would cause the least damage possible.
    Having done so, his measure of damages, the actual damage sustained by him, was twenty cents per barrel, or $37.40; and this appellant is liable for in this action. W. U. Tel. Co. v. Valentine, 18 Ill. App. 57; Strausse v. W. U. Tel. Co., 8 Biss. 104; W. U. Tel. Co. v. Fatman, 73 Ga. 285; Rule v. W. U. Tel. Co., 55 Tex. 308; Wait’s Actions and Defenses, Vol. 6, p. 19, 20; Sutherland on Damages, Vol. 3, p. 298; W. U. Tel. Co. v. Harris, 19 Ill. App. 357.
   Wall, P. J.

This suit was brought by the appellee to recover damages alleged to have been sustained by reason of an error in the transmission of a telegram received by the appellee. The case made by the proof was that appellee, who was a restaurant keeper and dealer in fruit at Gibson, Illinois, wrote to J. H. Moore, also a dealer in -fruit, of Hortli Java, H. V., asking at what price the latter could furnish a carload of apples.

Moore answered by telegraph that the price would be one dollar and seventy-five cents per barrel, but by some negligence in transmission it read when received, one dollar and fifty-five cents, making a difference of twenty cents per barrel. The appellee being willing to purchase at the latter price, accepted the offer and sent two hunlred dollars on the account to JVIoore as was required by the custom of dealing between them.

In due time the carload of apples arrived at Gibson, and then, or just before, a bill of lading with draft attached reached the local bank for collection. This draft was for the balance at the rate of one dollar and seventy-five cents per barrel, and it had to be paid before the apples would be delivered.

When appellee learned the amount of the draft, it was apparent there was a mistake somewhere, and investigation revealed that the fault was with the telegraph company, appellant. Ho excuse for the error has been offered and it may be assumed none can he.

When appellee accepted the offer as contained in the telegram, he proceeded to dispose of the apples he then had on hand in anticipation of those thus contracted for, and when the car had arrived and the mistake was discovered, he was put to the alternative of taking the fruit at the advanced prices or of- submitting to the risk and inconvenience of the opposite course. He had advanced two hundred dollars and he needed the apples and l^e decided to pay the draft, which he did.

The difference in price amounted to §37.40 and to recover this sum the present action was commenced. The case was tried by the court by consent, a jury being waived, and there was a judgment for plaintiff for one cent and costs. From this judgment the telegraph company has prosecuted an appeal to this court, assigning errors upon the record in the appropriate way to present the point that upon the facts stated there is no liability from appellant to appellee. Cross-error is assigned by appellee for the purpose of raising the question as to the amount of damages, and presenting the proposition that upon the facts stated, appellee should recover of appellant the entire damage sustained, to wit, twenty cents per barrel, or §37.40, the amount sued for. ’ Thus two questions fairly arise for our decision :

First, can appellee, the "receiver of the telegram, sue the telegraph company for an error in transmission; and second if he can, what is the proper measure of his damages?

It is contended by appellant that the telegraph company was the agent of the sender and that it had no such relations, contractual or otherwise, with the receiver, as to support an action at the instance of the latter for the negligence in proof.

It is no doubt true that the company was the agent of the sender, and that appellee, if he had chosen, might have so treated the matter, and might have required the sender to look to the company for relief. This, of course, would be so upon the ordinary doctrine which holds the principal for the act of his agent, and binds him for any error or mistake of the agent in the transaction of the business about which he is employed. In such a case the receiver might well suppose the telegram had been correctly transmitted and might act accordingly, and in a controversy between him and the sender, the message as received would be deemed the original and furnish the basis of recovery. Morgan v. The People, 59 Ill. 58; Scott & Jarnigan on Law of Telegraphs, Sections 343 to 317.

But there are many cases where the only injury sustained falls upon the receiver, and when the sender could show no damage. For example, where the message is not promptly delivered, and the receiver loses thereby a valuable bargain, or where the sender had assumed merely to report the market by telegraph and the receiver is misled in making an order. It is apparent that the ends of justice would not be met by regarding the company as merely the agent of the sender in 411 cases, and in Hunting liability to the contractual relation so established.

In a certain sense, the telegraph company is a public agency. The franchise it liblds from the State 'enables it to take property for the purpose of locating its line by virtue of the eminent domain. It must serve all alike and must transmit messages in the order received. It has some of the qualities, though not all, of a common carrier, and has been held to some, though not all, of a carrier’s responsibility.

It is not surprising, then, to find that courts have held that to some extent the telegraph company is the agent of the receiver as well as of the sender, and that, even regarding it as the agent of the sender only, the receiver may hold it liable for any misfeasance (as contradistinguished from mere nonfeasance or neglect), whereby he sustains a loss. Such, it is believed, has been the uniform current of decision in this country, though formerly the ruling in England \yas otherwise, and is now, so far as we are advised. The leading case in America, followed generally by the courts and approved by text-writers, is N. Y. etc., Tel. Co. v. Dryburg, 35 Pa. St. 298. A message was given to. the company in Hew York, whereby the sender requested the receiver (Dryburg), a florist in Philadelphia, to send him two hand boquets by a certain time.

The message as received by Dryburg read two hundred boquets, and before the error was discovered he had cut valuable flowers and bought others, so that his damage, by reason of the mistake, was assessed at $100. We quote the following from the opinion of the court, per Justice Woodward:

“ That the relation of principal and agent existed between him (the sender) and'the company, there can be no doubt; but I do not think it equally clear that that relation was not established between Dryburg (the receiver) and the company. Telegraph companies are in some sort public institutions, open alike to all, and are largely used in conducting the commerce of the country. When a man receives a message at the hands of the agent of such a company and acts upon it, especially if, as Dryburg did, he use the same medium for responding to the message, it seems reasonable that for all purposes of liability the telegraph company should be considered as much the agent of him who receives as of him who sends the message. In point of fact the fee is “often paid on delivery, and I am inclined to think the company ought to be regarded as the common agent of the parties at either end of the wire. But, however this may be, regarding the company as alone the agent of the sender, is it to be doubted that an agent is liable for misfeasance, even to third parties?
“ For nonfeasance I agree the agent is responsible only to his employer, because there is no priority of consideration between the agent and a third party. The remedy in such cases must be sought in the maxim respondeat superior/ but, even to this rule there is an exception in the instance of masters of ships; who, although they are the agents of the owners, are also in many respects deemed to be responsible as principals to third parties, not only for their own negligence and nonfeasance but for those of subordinate officers and others employed under them. The general rule, however, was laid down by Lord Holt in Lane v. Colton, 12 Mod. 448, in these words: 6 A servant or deputy, as such, can not be charged for neglect; the principal only shall be charged for it; but for a misfeasance an action will lie against a servant or deputy, but not as deputy or servant, but as a wrongdoerThe compilers have “taken the rule from this source and the eases cited by them show that it has generally been followed. Paley on Agency, 396 et seq.: Story on Agency, sections 308, 309, 314 and 315,”

Bediicld, in his work on Carriers, in referring to the subject, section 550, says: “But we think the true distinction in regard to the party entitled to bring the action where any default in transmitting a message by a telegraph company arises, must rest upon the distinctions which everywhere obtain in actions on the case. First, the contracting party may maintain an action against the company on the ground of a breach of contract, as well as for any breach of duty as public servants; second, those who are injured by their neglect of duty as public servants, offering to serve faithfully all who may have any interest or connection with their operations, may have an action on the ground of a virtual tort in failing to perform this general duty of faithful and careful servants. This seems to be well illustrated by the ease last cited (Drybnrg case). The sender of the message might have maintained an action to recover all damages he sustained by an over order being sent by his correspondent On the other hand, the correspondent was not obliged to send the two hundred boquets and collect pay for them of the man who never intended to order them. He was not obliged to accept such man as his debtor, but might recover all his damages, if he so elected, of the party whose default and negligence had caused them.”

Wharton, in his work on Negligence, discussing the subject with reference to telegraph companies, remarks as follows:

“Section 7i)8. Liability for Erroneous Transmissions.—Here the company, having put itself in relation to the receiver and given him, through its negligence, erroneous information whereby he suffered loss, is liablefor negligence. It is true the point has been defeated in England, but it has, in this country, been maintained, and with justice; because (1) the company is the agent both of the sender and of the receiver, and (2) on the principle sio utere tuo ut alienum non laidas, if it undertakes to exercise a franchise it must do so in a way which may not injure others.”

Shearman &Redfield on Negligence, Secs. 558-60, approve» the doctrine announced in the Dryburg case, and suggest as an additional view that when two persons enter into a simple contract for the benefit of a third, the latter, though not a party, is in such privity with the parties and the subject-matter that he may maintain an action on the contract in his own name, a familiar and well-settled rule in this State. Eddy v. Roberts, 17 Ill. 505; Bristow v. Lane, 21 Ill. 194; Steele v. Clark, 77 Ill. 471.

In May v. W. U. Tel. Co., 110 Mass. 90, the suit was by the receiver, and the formal allegation was that the company had delivered a message never sent, falsely representing that it was authorized to deliver the message, whereby plaintiff was induced to send his goods and was damaged. The court? approving the action, said: “ It is not necessary to allege there was intent to deceive or that it was false withiri the knowledge of the defendant. It is not an action of deceit. It is an action in the nature of a false warranty against one acting as agent, representing that he had authority when he had not. Whether such representation is made in terms or tacitly and impliedly, he supposing but not knowing the fact to be true, he is liable to the person misled.”

Bigelow on Fraud, Ch." 1, Sec. 3, states the same doctrine and refers to this case as authority, saying: “This action is sometimes said to be based upon a breach of warranty and sometimes upon deceit. In either form of, action the injured party is entitled to recover against the supposed agent to the extent of the damage sustained.”

In La Grange v. Tel. Co., 25 La. Ann. 385, the action was by the receiver to recover for damages for goods sent to the wrong address by reason of error in transmitting the message. No question was made as to the right of the .receiver to sue, but the nature of the action was considered important to determine. The court remarked: “The action is, in our opinion, ex contractu and not ex delicto. The .defendants hold themselves out to the public as being ready to transmit for hire, messages for individuals, and to deliver faithfully for others such messages as are intrusted to them. They make themselves the agents of both the sender and the receiver, and their failure in their assumed duty creates an obligation in favor of the one who may be injured.”

In Aiken v. Tel. Co., 5 S. C. 358, it was held that there is sufficient privity of contract between the receiver and the company to enable the former to maintain an action against the latter, although the price of transmission was paid by the sender. The doctrine of the Dryburg case is approved in Sutherland on Damages, page 314, and in Field on Damages, Sections 415, 416 and 430. See also W. U. T. Co. v. Hope, 11 Ill. App. 289, which was an action by the receiver for failure to promptly deliver the message. We have found no authority in this country against the right of the receiver to sue for an injury sustained by him, though, as has been seen, the courts have not always placed the right upon the ground of contract.

It seems a logical view that because of the peculiar nature of the undertaking of the company in which it performs a service for both parties, it may be regarded as in a certain sense the agent of both. In a controversy between the sender and the receiver, the company may be deemed the agent of the one or the other, according to circumstances, as already intimated. &

The liability of the company to the receiver ex contractu arises ex lege. The contract is to be implied by law, in furtherance of justice, regardless of the intention of the parties.

There are many instances where the law will raise a promise although there is nothing to show that anything of the sort was intended, and when it is improbable that there may have been any such purpose, as when by force or fraud one gets possession of another’s money or property, or where a thief sells stolen goods which are reclaimed by the owner, or when one knowingly entices away or harbors another’s apprentice, a promise to return the property or to make compensation, as the case may be, will be implied. In such cases there is generally a concurrent i-emedy by an action for the tort, which the injured party may elect, if he chooses. Such cases differ from those of principal and surety and joint promisors where a contract will be implied and where there is no improbability that in fact there was a promise of payment. In these there is no liability ex delicto.

The public character of the business of telegraphing, the duty of the company to serve all alike, and to act when called on for a lawful purpose, must be considered' in determining the legal aspect of the situation. When the performance of this quasi public service is entered upon by the company at the instance of the sender, there is a clear undertaking with him to do the work well; and as the interest of the receiver is also to be affected, and as he may be expected to act upon the presumption that the work has been well done, the law will raise an assumpsit when the message is delivered that it is the one that was sent. Perhaps in strict terms, the contract thus implied is not a contract of agency, and that it may lead to confusion of ideas to speak of the company as the agent of both sender and receiver, but that the law will contemplate the company and the receiver asdiolding contractual relations, seems entirely rational.

When, however, the relations of the parties are considered independent of contract, there can be no question as to the liability in an action ex delicto. The law raises a duty, which is violated by neglect to perform, promptly and correctly the service undertaken, for which failure an action lies at the instance of the party injured; and aside from this, upon the ordinary principles of agency, the misfeasance of the agent will support an action.

After all, it is not very important, in a practical point of view, whether the liability be considered ex contractu, or ex delicto, since merely the form of action is involved in the analysis which is necessary to settle the question.

Whether considered in the light of tort or contract, it seems clear that the remedy in favor of the party injured directly against the party at fault is to be favored. It is a familiar maxim that the public is interested in the speedy end of litigation, and another that circuity of action is to be avoided. Hence the doctrine of set-off and recoupment. So here, when a new public agency is developed unknown to the law, when most of its rules and principles were formulated, it devolves upon the courts to apply such legal analogies as will promote justice and avoid undue and useless controversy. The Circuit Court properly held that the action might be maintained by the receiver.

As to the second question, affecting the measure of damages. In the cases to which we have referred there was no doubt expressed that the plaintiff could recover such damages as "were the proximate result of the fault complained of. The argument of appellant seems to be that appellee, having bought the apples at §1.55, should have held his vendor to the bargain, and let the latter seek his remedy against the company; but, as we have seen, he was not bound to do this; and then the inquiry is, what is the reasonable measure of his loss. We need not repeat the statement of facts, and will only add that it was one of the findings of the court that had the message read §1.75 when received, the plaintiff would not have accepted the offer. Considering the predicament in which he was placed, he did as any prudent business man might have done. He had been compelled to advance the greater part of the purchase money. The fruit was there and he needed it. The shipper was in a distant State, and, if solvent, it was not convenient to sue him there. He might reasonably suppose that the company would, upon learning the facts, make good the loss, and that, acting upon sound business principles, it would prefer to do so without cost or litigation.

It is suggested that the plaintiff might have replevied the fruit from the carrier. We do not care to consider that proposition, and can hardly see how the appellant company can with propriety lead us into that held of inquiry. We entertain no doubt that on the record as here presented the plaintiff’s loss should be measured by the difference between the price he intended to pay and the price which by stress of the circumstances he did pay—twenty cents per barrel—$37.40, and this sum should have been allowed him. The cross-error assigned by appellee in this respect is sustained.

The judgment will therefore be reversed and the cause i emanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

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    The Jacksonville Southeastern Railway Company v. Claus F. Carlsen.

      Railroads—Killing of Stock at Highway Crossing—■Negligence—Statutory Signals.

    In an action against a railroad company to recover for the killing of stock at a highway crossing, this court declines to interfere with the finding of the court below for the plaintiff.
    [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of Cass County; the Hon. Cyrus Eplbr, Judge, presiding.
    Messrs. Morrisoh & Whitlock, for appellant.
    Messrs. Ketoham & Gridley, for appellee.
   Wall, P. J.

This suit was brought to recover damages for killing a cow and some hogs belonging to plaintiff, by the engines running over the railroad of defendant. The case was tried by the court, a jury being waived, and there was a judgment for plaintiff for 875. The only question is as to liability for the cow.

The declaration avers the cow was struck on a public highway crossing; that the employes in charge of the train might by the exercise of proper vigilance have seen the animal and avoided the collision, and that the statutory signals were not given eighty rods before the crossing was reached.

It appeal's that the engine in question had nothing but a tender attached and was running at a high rate of speed. The engineer and fireman, and a brakeman who was on the engine, say they saw several head of cattle pass over the crossing and then this cow came running in the same direction as the others.

She was not noticed until she was about on the track, not more than one hundred feet from the engine, when it was too late to stop. Two or three sharp sounds of the whistle were given, but the cow was struck and killed. These witnesses state the proper signals were given eighty rods before the crossing was reached and that the highway was lower than the railroad—how much lower we are not told—and that the highway is fenced on each side up to the right of wav. The plaintiff had proved by several witnesses that they saw the collision and that if any signals were given, except the sounds of the whistle spoken of by the men on the engine when the cow was discovered, they did not hear them. The men on the engine do not say how much effort they had been making to ascertain that the track was clear or how much care they took to see whether the cattle were all across the track or whether there were any such obstructions to vision as would have prevented them from seeing the cow before she reached the track. According to all their testimony she was not more than one hundred feet ahead when they first saw her. Ho propositions of law were presented, and the only points for the court to decide were pure questions of fact, viz,, whether there was an omission to give the statutory signals or to keep a proper look-out, and whether the collision was the proximate result of either of these matters of negligence. The same effect is to be given this finding of the court as would be given the verdict of a jury.

This is the legal rule, and in a case like the present, where the question arises whether, admitting the negligence, the injury complained of was caused thereby, there is force in the suggestion that a finding by the court should be more persuasive than a verdict of a jury. All considerations being taken into account we do not feel warranted in setting aside the judgment and the same will therefore be affirmed.

Judgment affirmed.


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    Orient Insurance Company v. Henry T. Kemp.

      Contracts—Agency—Pleading—Failure of Consideration—Statute of P'rauds-

    In an action against an insurance company brought by a discharged agent io recover money paid by the plaintiff at the time of his appointment to settle the account of his predecessor, it is held: That the evidence fails to show an agreement for the plaintiff to act as the permanent agent of the defendant; that the judgment for the plaintiff can not be sustained under the common count for money had and received; and that, at most, there is but a pu’tial failure of consideration.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Adams County; the lion. William Marsh, Judge, presiding.
    Mr. D. J. Schuyler, for appellant.
    Messrs. Sprigg & Anderson, for appellee.
   Wall, P. J.

The appellee recovered a judgment in the Circuit Court for §267.25 upon, substantially, the following facts:

One Nichols had been the agent of appellant at Quincy and had fallen behind in his accounts. The appellant, through Noble, a special agent, was pressing him for a settlement, lie had been doing a general real estate and insurance agency business, and, besides the appellant, he represented four or five insurance companies. He became anxious to sell out and was negotiating with the appellee, Kemp, who was without experience in the business. The evidence is conflicting as to the part Noble took in this negotiation, but according to the version of appellee, lie urged him to make the trade with Hiehols and induced him to believe that he would be retained as the agent of appellant and that it was not the habit of appellant to change agents without good cause. This is denied by Noble, but it is not doubtful that he, Noble, was encouraging appellee to buy out Nichols, the motive being to collect through appellee the amount due the appellant from Nichols.

Appellee finally agreed with Nichols to buy the business, including all the real estate and insurance matters, for the sum of 8900, of which the amount due from Nichols to appellant, 8267.25, he paid to appellant, pursuant to an order drawn upon him by Nichols in favor of the appellant.

Appellant, before receiving this money, sent him a commission to act as its agent at Quincy. This commission specified no time during which the agency should continue, and there is no evidence aside from the statement of the appellee as to any understanding in this respect. It may he stated here that he insists the appellant refused to appoint him unless the arrangement was made by which the balance due from Nichols was paid, in effect, as it was. This is denied by appellant.

Appellee conducted the agency for six months, when appellant transferred it to another, and appellee surrendered his commission. No particular reason appears for this action of appellant though there is some proof that appellee had not succeeded very well, and there is also some proof that the change was made to favor a friend of an offi.-.ial of the appellant company. Appellee brought suit to recover the amount paid to appellant, alleging iu the special counts of his declaration that, in consideration of the payment of said sum, the appellant agreed to appoint him its agent “and that such appointment should be permanent.”

We think the evidence wholly fails to show any such agreement. Even if the commission, which he accepted as his sole authority to act as the agent of the company, should not be regarded as the contract between the parties, there is not enough in the preceding negotiations to justify the view that there was any agreement as to the term of the agency.

At most, there was but an expectation on his part that he could retain the position while he chose; but this is too indefinite to form the basis of a judgment. He accepted the commission, however, which was wholly silent on this point and under which he was at liberty to resign at pleasure. He "must have understood the rights of himself and the company were mutual in this respect and that there was no intention or purpose to make the term definite. ’He no doubt was willing to take the risk of an early removal. The proof does not sustain the material averments of the special counts.

We omit consideration of what would be the reasonable meaning of the word “ permanent ” in such a connection, and of the proposed application of the statute of frauds to the contract if it were subject to be construed as contended for by the appellee.

It is argued on behalf of.appellee, that the money may be recovered under the common count for money had and received. The evidence does not support such a recovery. It does not appear the money was obtained by fraud or through imposition or by any undue advantage.

If the claim is to rest upon the ground of money paid upon a consideration which has failed, the conclusive answer must be that, at most, there is only a partial failure, while here is a judgment for all; for the agency was enjoyed during a period of six months and there is no reason for the view that the money paid to the appellant was a fair proportion for that part of the Hichols business which was represented b\r the agency of the appellant company. The case at best is one where the contract was partially executed and where, as the parties can not be placed in statu quo, the remedy is to he had only under a special count upon the contract. 2 Greenl. Ev., Sec. 124.

In any view we are able to take of the case, the judgment is erroneous. It is therefore reversed and the cause remanded.

Reversed and remanded,.


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    Richard Seaton v. Henry Ruff.

      Replevin—Chattel Mortgage—Transfer of Mortgaged, Property—Evidence—Instructions—Estoppel—Practice.

    1. Where a mortgagee takes possession of mortgaged chattels under the mortgage, he holds the legal title, and may lawfully sell at private sale, being responsible to the mortgagor for any omission to comply with the terms of the mortgage.
    2. In an action of replevin brought to recover property which had been levied upon after foreclosure and sale, as the property of the mortgagor, this court declines to interfere with the verdict for plaintiff, there being no sufficient evidence of fraud.
    3. After the foreclosure of a chattel mortgage, the employment of the original owner to take charge of it does not of itself raise a presumption of fraud.
    4. An assignment of error which is not noticed in the brief, will be considered as waived.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. J. C. Beoady, for appellant.
    Messrs. Emmons & Wells, for appellee.
   Wall, P. J.

This was replevin by appellee against the appellant. The pleas were property in a third person, noth detinety and that defendant, as sheriff, had levied upon the property by virtue of an execution against one James IT. Ba1tliorpo, the then owner of the property. The plaintiff took issue on these pleas, and upon a trial by jury the finding was for plaintiff, upon which a judgment was entered.

The evidence tended to prove that said Balthorpe and one Bushnell, as partners, being the owners of the chattels in question, consisting of sundry horses, carriages, buggies and other vehicles, with the harness, robes, etc., pertaining to the same, in a livery stable on Hampshire street in the city of Quincy, on the 30th of June, 1884, executed a chattel mortgage thereon to secure the payment of- a promissory note for $2,600, due six months thereafter, to L. and C. H. Bull, bankers in said city.

The mortgage was properly acknowledged and recorded. On the 23d of September following," said L. and O. H. Bull transferred the note and mortgage to John H. Duker for the consideration of $2,500. Duker took immediate possession of the property and put his agent in charge of it, and on the next day sold the property to the appellee, Henry Buff, giving him possession. Buff put the property in charge of his agent, and causing the name of Balthorpe & Bushnell to be “ painted out ” of the sign, he posted up a notice in the office that he was the owner of the property. This action of Duker in taking possession and selling to Buff .was by virtue of certain provisions of the mortgage which it was claimed authorized such proceedings. Buff retained possession by his said agent for some three months, when he employed Balthorpe to act in that capacity. The business was carried on as usual and Balthorpe seems to have had charge and management from that time forward. He did not claim to be the owner, although the building occupied on Hampshire street was leased in his name, and afterward he leased another building on Vermont street to which the property was removed. He received a salary for his services, and this, together with the other expenses, was paid out of the earnings, so far as the latter were sufficient. In October, 1885, Buff sold all the property on credit to ' one Hatcher for $3,600, and took his note, secured by a chattel mortgage, to secure the debt. When this note matured, in May or June, 1886, Ruff gave notice of sale, and Hatcher, to save expenses, surrendered the property to Ruff, who thereafter claimed to own it and had possession, Balthorpe acting as his agent.

In December following the levy was made, under an execution issued December 16th, upon a judgment rendered December 6th. It is urged that the proof shows that the property all the while belonged to Balthorpe, and that the various transfers were merely colorable.

There was evidence tending to prove that Balthorpe was a great part of the time exercising such control and authority as to dispel the idea that he was only an agent, and these circumstances it is insisted are conclusive against the position of the plaintiff.

There seems to be no good reason to doubt that the debt for which the mortgage was originally given was bona fide, and that the transfers to Duker and Ruff were not with any fraudulent or improper purpose. When a mortgagee takes possession of mortgaged chattels pursuant to the provisions of the mortgage, he will hold the legal title. Being so vested and having possession, he may lawfully sell the property at private sale, being responsible, however, to the mortgagor for any injury sustained by him by reason of omission to comply with the terms of the mortgage. The mortgagor may waive all right to complain, and by his action may be estopped to say that the sale was not made pursuant to the power contained in the instrument. In such case the title of the purchaser can not be assailed by the mortgagor, nor by his creditors who have no lien upon the property at the time of the purchase.

It is not important to inquire whether the mortgagee in the present instance had sufficient grounds for taking possession, or whether the sale was authorized by the terms of the mortgage, for the plain reason that the only persons who had at that time any legal right to object—to wit, the mortgagors— acquiesced in it and waived all objections they might have interposed. McConnell v. The People, etc., 84 Ill. 584; Jone on Chattel Mortgages, chapter 16.

The fact that Balthorpe was employed as agent of the mortgagee after foreclosure, while it is a circumstance to be considered, is by no means conclusive against the good faith of the transaction. Indeed, it does not necessarily raise a presumption of fraud. It may be consistent with the. most perfect good faith. Brown v. Riley, 22 Ill. 45; Read v. Wilson, 22 Ill. 377.

The circumstances of the sale to Hatcher, who was a man of no means and was a relative of Balthorpe, are urged as strongly indicative of fraud.

It was testified by Hatcher that he expected to get money from a claim he had in litigation in Missouri when he made the purchase, but was disappointed.

It is probable that Ruff was anxious to dispose of the property, and was willing to sell to any one who had a reasonable prospect of being able to pay. Ruff bought the-property originally because he held a claim of 3400 against Balthorpe. lie frequently paid out money on account of it while he had it. It was assessed in his name and he kept it insured, and when it was destroyed by fire, after this suit was begun, he collected the insurance. After a careful reading of the evidence as it appears in the abstract, we think there is no good reason to set aside the verdict so far as the facts are concerned, and that there was no error in denying a new trial upon this ground.

The assignment of errors questions the ruling of the trial court in giving and refusing instructions, but in the brief there is no reference to this point. We are, therefore, not advised of the reasons for this assignment. It is our practice to consider as waived or abandoned an assignment of error which is not noticed in the brief, and in the present instance we so regard it.

No other point is urged, and the judgment will be affirmed.

Judgment affirmed.


text:
    People of the State of Illinois et al. v. M. E. O’Hair et al.

      Drainage—Organization of District—Sufficiency of Petition—Quo Warranto—Act of 1885—Practice—Pleading.

    1. Proceedings relating to the right of individuals to act as drainage commissioners, are reviewable in this court, an office and not a franchise being involved.
    2. The finding by drainage commissioners at their final meeting, that the petition for the formation of the district has the requisite number of signers, is conclusive in all subsequent proceedings in the absence of fraud or collusion on their part.
    3. Upon quo warranto to test the organization of a drainage district, there being no error in the rulings of the trial court affording sufficient grounds for reversal, this court declines to interfere with the judgment for defendants.
    [Opinion filed November 23, 1888.]
    In error to the Circuit Court of Coles County; the Hon. J. ¡F. Hughes, Judge, presiding.
    Messrs. S. M. Leitch, State’s Attorney, and Wilet & Heal,’ Chas. G. Eokhart and James A. Connolly, for plaintiffs in error.
    Messrs. Craig & Craig, for defendants in error.
   Wall, P. J.

This was quo warranto to test the organization of a drainage district, the main objection being that the petition had not been signed by a sufficient number of land owners within the proposed district. The defendants filed their plea in which it was a leged that the petition was so signed, upon which there was issue.

The cause was continued to the next term of court, when leave was, asked and granted to file an additional plea. The plaintiffs moved to strike this plea from the files and the motion being denied they then demurred to the plea. The demurrer was overruled and the defendant asked leave to amend the plea, which was granted, whereupon motion was made to strike the plea as amended from the files, which was denied, and a demurrer was interposed to the amended plea, which was also overruled. It does not appear what this amendment was, but we may assume it was some formal matter which had been overlooked, and that it is not material to consider now. Leave was then given to amend the information by making a change of parties relators. .The relators then elected to stand by their demurrer to the second plea as amended, and the court entered judgment for the defendants, that they might have, use and enjoy their said office, etc. On the same day leave was given defendants to withdraw their first plea, and thereupon plaintiff asked leave to reply to the second plea, which was denied, and judgment was then “rendered in favor of the defendant upon the whole case,” as it is stated in the record. . „

The case comes here by writ of error, and it is suggested by the defendants in error that a franchise is involved, and that the case should have gone to the Supreme Court for that reason. In People, etc., v. Hotz, 92 Ill. 426, a similar question was presented, and it was there held an office is not a franchise.

The objection must be overruled, and we pass to the points raised by the assignments of error. That mainly controverted isj as to the effect of the finding of the commissioners at their final meeting, that the petition was signed by the requisite number of land owners of the district as finally organized.

It is provided by Sec. 15 of the farm drainage act of 1885,' that such finding “ shall be conclusive; ” but it is argued by plaintiffs in error that this language does not mean that the finding shall be so regarded in a direct proceeding where the sole object is to test the validity of the organization, and that it was not designed that' the commissioners should be permitted thus to preclude all inquiry into the vital facts upon which the organization must depend. Upon a careful examination of the various provisions of the act, we ¿re inclined to hold that the finding is conclusive in all subsequent proceedings, whether the attack be direct or collateral, except, of course, in case of fraud or collusion upon the part of the conr missiouers.

The terms employed are general, admitting of no exception unless implied by law, and we are impressed with the belief that the Legislature designed to vest in the commissioners the power of investigation and decision, for the purpose of a final determination. Important considerations readily suggested would require that this question should have an early and summary as well as conclusive settlement. The policy of the law seems to be that its various provisions shall be liberally construed to accomplish the desired end, and that all reasonable intendments shall be indulged in support of the proceedings thereunder.

It is urged also that the court erred in not striking the second plea from the files and in rendering judgment for defendants upon the demurrer to second plea while there was issue undisposed of in the first plea. It is true that in quo warranto the burden is upon the defendant to disclaim or justify, and it may be, as insisted, that the provision of the practice act allowing a defendant to file several pleas is not applicable. We are not disposed, however", to consider the error in this instance, if it be error, as of grave importance. When the court refused to strike the plea from the files the plaintiffs interposed their demurrer and after the demurrer was overruled and judgment was rendered thereon for defendants) leave was given to withdraw the first plea and then judgmeut was finally rendered for the defendants. The result is that even if, by demurring, the motion to strike from the files was not waived, yet when final judgment was rendered the record contained but a single plea. The matter thus complained of is at most but an irregularity for which we can not reverse the judgment.

It is also urged that it was error to refuse permission to reply to the second plea after the first had been withdrawn. The plaintiffs had elected to stand by their demurrer to the second plea and it was matter of discretion in the court whether to permit them to change their position in this respect. After the second plea was withdrawn, if the court could see by what was before it, whether in the suggestions made by the parties or otherwise, that the ends of justice required that such leave be granted, it should have done so. There is nothing in the present record from which we can in for or presume that the court unfairly exercised its discretion in this respect and we find here no ground for reversal.

It is objected also that the record of Jnne 4th, made by the commissioners, shows that there was an adjournment from May 18th to May 24th, which was a period of more than three days, thus exceeding the limit allowed by Sec. 13. It is so recited, but on referring to the record of the second meeting it appears to have been held on the 21st of May, and we must regard the recital May 24tn, as a mere clerical error. A similar clerical mistake occurs in the description of land contained in the district as finally organized, one parcel in section eight being designated as (N. W. -J) northwest half of the northeast quarter, while in the recital at the beginning of the order it is the west half of the northeast quarter. Obviously, the word north is an accidental interpolation and should be disregarded.

It is also suggested that the final order includes lands in section seven which appear nowhere else in the proceedings. The description of lands contained in the district is not set out in the abstract, and upon referring to the record we are unable to find that the lands mentioned in section seven are embraced in the final order. We conclude that counsel are laboring under a misapprehension as to this matter.

Having considered all the points, though not in the order as they appear in the brief, we are of opinion the record discloses no such error as requires us to reverse the j'udgment and the same will therefore stand affirmed in this court.

Judgment affirmed.


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    Frey Brothers v. Harrison & Atchison and J. H. Harrison.

      Attachment—Fraud—Insolvency—Sales.

    1. A creditor may accept property in payment of his debt in preference to others, although he knows the debtor is insolvent.
    2. An action upon the debt incurred in the purchase of property amounts to an affirmance of the sale.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Bayburr & Barry and A. E. Be Marge, for appellants.
    The court erred in refusing plaintiffs eighth and ninth propositions. By them the court was asked to hold that a purchaser from one who had obtained title by fraud, before he can claim protection as an innocent purchaser, has the burden of proving that he has actually paid a new and valuable consideration, or has done some other act which, if his purchase were set aside, would place him in a different and worse pecuniary condition than he was in before the purchase, and that he was without notice of the fraud committed by his vendors. This is the law as laid down by Bigelow on Fraud, p. 309; Easter v. Allen, 8 Allen, 7; Hoffman v. Strohecker, 9 Watts, 189.
    It is not enough that sale be made on good or Iona fide considerations; it must be both. Waite on Fraudulent Conveyances, p. 28.
    That the burden was on Harrison, the claimant, has been decided by this court and also by our Supreme Court. The claimant must prove by a preponderance of the evidence that the-property in question was and is the property of said claimant. Hansen v. Dennison, 7 Ill. App. 77.

      The court held in this case that it was error in the trial court to refuse to instruct the jury that the burden was upon the claimants, saying that in a trial of the right of property it devolves on the claimant to affirmatively show that he is the owner. Marshall v. Cunningham, 13 Ill. 20; Craig v. Peak, 22 Ill. 185.
    When-the evidence of the parties shows the alleged indebtedness to be much less than that named by them in the conveyance, it is a badge of fraud. Peebles v. Horton, 64 N. C. 374; Marriott v. Givens, 8 Ala. 694; Enders v. Swayne, 8 Dana, 105.

    And though a conveyance recite a valuable consideration, if the recital is not true in fact, if there is want of satisfactory evidence to establish it, there can be no inquiry into the good faith of the grantee; the fraud must be visited on him. Pickett v. Pepkin, 64 Ala. 524; Clark v. Chamberlain, 13 Allen, 257.
    Where a creditor shows indicia, or badges of fraud, the burden rests on the grantee to repel the presumption which the facts so shown generate. Wait on Fraudulent Conveyances, p. 311; Harrell v. Mitchell, 61 Ala. 270.
    This, Mr. Harrison has failed to do.
    Messrs. Fifer & Phillips and George W. Herrick, for appellees.
   Wall, P. J.

This was a proceeding by attachment at the instance of appellants, against Oscar C. Harrison and Charles M. Atchison, upon the alleged grounds of fraud in contracting the debt, and that the defendants had within two years fraudulently disposed of their property. J. H. Harrison interpleaded, claiming that he was the owner of the property attached, by virtue of a purchase from the attachment defendants.

The issues were submitted to the iourt, a jury being waived, and there was a finding for plaintiffs against the defendants, and a finding for the claimant. The latter finding is the subject of complaint in the present appeal.

The property was sold and delivered to the claimant by the attachment defendants before the writ was issued, for the purpose of paying a debt which the latter owed the former. There is no reasonable ground to doubt that this debt was bona fide, and that the transaction was for the real purpose of paying it. The debtor had the right to prefer his creditor, and the latter had a right to be preferred, and to this end he might take the property, even though he knew the debtor was insolvent, and that other creditors would thereby be hindered and delayed. Such a transaction is not in contravention of the statute of frauds.

The plaintiffs, by suing upon the debt incurred in the purchase of the property, seem to have affirmed the sale, and in such case the claimant would not be unfavorably affected by notice of the alleged fraud in which he took no part. Gray v. St. John, 35 Ill. 222; Bump on Fraud. Conveyances, 183-5, 205-6.

The pro positions of law submitted to and held by the court were all the appellants could properly ask.

We find no error in the record and the judgment will be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Spoor Mackey v. Belle Plumb et al.

      Equitable Estoppel—Bill to Restrain the Payment of Money on Execution—Concealment—Fraud.

    1. When one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief, so as to alter his previous condition, the former is concluded from averring against the latter a different state of things as existing at the same time.
    2. This court declines to interfere with a decree dismissing a bill filed by a judgment debtor to restrain the sheriff from paying over money in his hands on an execution in favor of another who is not estopped from asserting her claim.

      [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Kebbiok, Lucas & Spenoeb, for appellant.
    It is laid down in all the books, and so far as we are advised, since the case of Pickard v. Sears, 6 A. & E. 469, universally conceded to be the law, that “when one by his words or conduct wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” White v. Walker, 31 Ill. 437; Hefner v. Dawson, 63 Ill. 403; Kinnear v. Mackey, 85 Ill. 97; Going v. Outhouse, 95 Ill. 350; Hill v. Blackwelder, 113 Ill. 291; Talcott v. Brackett, 5 Ill. App. 69; Litzelman v. Howell, 20 Ill. App. 588; Sessims v. Rice, 30 N. W. Report. 735; Continental Nat. Bank v. The Nat. Bank of Commonwealth, 50 N. Y. 575; Bigelow on Estoppel (2d Ed.) 434.
    It is also laid down as a correct rule of equity jurisprudence that “when a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.” Note 1, Bigelow on Estoppel, 453.
    Messrs. Benjamin & Mobbisey and Mr. Jacob P. Lindlby, for appellees.
    In view of the fact that Belle Plumb continued in the employ of Bailey Plumb for more than eight months after the judgment note was given to appellant, and while large sums of money, amounting to seven hundred dollars, were being paid to appellant, without drawing her wages, can it be said that she was guilty of moral turpitude or fraud?
    If the element of fraud is wanting there is no estoppel. This our Supreme Court has repeatedly said. Chandler v. White, 84 Ill. 435, 438; Dorlarque v. Cress, 71 Ill. 380, 382; Davidson v. Young, 38 Ill. 145, 152; Powell v. Rogers, 105 Ill. 318.

      And see St. Joseph Mfg. Co. v. Daggett, 84 Ill. 556, where it was held that an agent acting under the direction of his principal was not estopped. St. Joseph Mfg. Co. v. Daggett, 84 Ill. 556-562.
    In the case at bar Belle Plumb was simply doing as she was directed to do by her principal.
    K There must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of' his title—the effect of the estoppel being to forfeit his property and transfer its enjoyment to another.” Boggs v. Mining Co., 14 Cal. 368; Anaheim Water Co. v. Water Co., 64 Cal. 195; Henshaw v. Bissel, 18 Wal. 271.
   Conger, J.

On the 19th of November, 1886, one Bailey Plumb, a retail dealer in paints and wall paper in Blooming-ton, Illinois, was indebted to appellant on open account in the sum of §2,968.27, for goods in his line previously furnished him by appellant. On that day appellant sent Mr. Barrett, who was his credit man, to Bloomington, to see about the account. Mr. Barrett saw Mr. Plumb, and by him was referred to appellee, Belle Plumb, his daughter, and book-keeper, for information. Mr. Barrett and Belle went over the books and when through Barrett testifies that he asked Belle, “ Now is this all you owe? Do your books show everything? ” and he says she replied: “ Yes, this is all; we owe nothing but what is on the books, and you have seen all.” This is denied by Miss Plumb.

After this examination Mr. Barrett took from Mr. Plumb a judgment note for the amount due appellant, returned to Chicago and delivered it to his employer. Upon this note during the succeeding eight months Mr. Plumb made payments amounting to §700 to §750. In June, 1887, Bailey Plumb, finding himself in failing circumstances, executed three judgment notes, to wit: One to Eugene Jackman for §2,103; one to Mrs. Skinner for §225; and one to appellee Belle Plumb, for §960, on which judgments were at once taken; executions issued in the order above mentioned, and Bailey Plumb’s stock of goods sold.

Appellant then took judgment for the balance due him on Plumb's note, issued execution, and the same was returned No property found,” whereupon appellant filed a bill against appellee Belle Plumb, and the sheriff, seeking to restrain the sheriff from paying over to Belle Plumb the money in his hand, made by her execution, but asking that such money should be applied upon appellant’s execution against Bailey Plumb. The indebtedness to Jackman existed at the time of the examination of the books in November, 1886, and was known "to appellee Belle Plumb. The indebtedness to herself at that time to the amount of about $700 also existed, and was due her for her wages at the rate of $40 per month as bookkeeper and saleswoman for her father, but neither of these accounts appeared upon the books of Bailey Plumb.

The bill proceeds upon the theory that there was a fraudulent concealment of the financial condition of Bailey Plumb, by appellee Belle Plumb, in her interview with Barrett, by which appellant was deceived and misled, and that in consequence appellant took no active measures to secure himself until it was too late, and that therefore appellee Belle Plumb is now estopped from asserting her claim against Bailey Plumb until appellant’s debt shall be satisfied, there not being sufficient assets to satisfy both.

We are not altogether satisfied with the finding of the master upon the question of fact, for Belle Plumb gives a different version of the transaction from that of JVIr. Barrett; but waiving that question, and assuming that the finding as based upon Barrett’s statement is correct, we are of opinion that the Circuit Court decided correctly in dismissing the bill. The rule of equitable estoppel is thus defined in Pickard v. Sears, 6 A. & E. 469: “ When one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief, so as to alter his own previous position, the former is .concluded from averring against the latter a different state of things as existing at the same time.” The above definition has been approved by our own Supreme Court. Hill v. Blackwelder, 113 Ill. 283; Hefner v. Vandolah, 57 Ill. 520.

It is entirely too uncertain what appellant would have done, had he known, at the time of Barrett’s investigation, of the existence of these debts. When it is asserted that he would have changed his then attitude toward Bailey Plumb had he known these facts, such assertion is mere speculation.

His debt after that date, instead of being increased, was decreased by payments made to him by Bailey Plumb to the extent of some 8700.

Had appellant known the true facts, would he have continued selling Bailey Plumb goods, and receive payment in full for the same and partially upon the old bill, or would he have refused further credit and sought to enforce collection by legal means? and had he chosen the latter course would he have succeeded in placing himself in a better position than he is now? Ho one can tell. In the language of Wellington v. Small, 3 Cush., page 149, “How could this plaintiff prove that he suffered any damage from the acts of the defendant which are averred in the declaration ? How could he prove that he would have secured his debt by attaching the property of his debtor, if the defendant had not intermeddled with it? Other creditors might have attached it before him; or it might have been stolen or destroyed while in the debtor’s possession. The fact that the plaintiff has suffered actual damage from the defendant’s conduct is not capable of legal proof because it is not within the compass of human knowledge, and therefore can not be shown by human testimony. It depends on numberless unknown contingencies, and can be nothing more than a matter of conjecture.”

We think the Circuit Court decreed properly in dismissing the bill, and such decree will therefore be affirmed.

Decree affirmed.


author: Pleasahts, J.

text:
    Jacob Fenter v. The Toledo, St. Louis and Kansas City Railroad Company.

      Nuisance—After-Acquired Title—Notice to Defendant—Evidence—Discretion—Error without Injury—Pleading.

    1. There can be no recovery for maintaining a nuisance erected before the defendant acquired title, in the absence of notice and a request to abate the same, unless the defendant has done something to increase it, or it is of itself a fresh nuisance.
    2. The admission of evidence tending to prove notice in behalf of plaintiff after defendant’s evidence is in, is discretionary with the court.
    3. This court can not consider instructions asked which do not appear in the abstract.
    [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Henley & Bose, for appellant.
    The nuisance complained of being an obstruction placed in, and obstructing the natural flow of water in a natural stream, and maintained and used by the defendant, notice to abate or request to remove was not necessary before suit was brought. Caldwell v. Gale, 11 Mich. 83; Colocton Stone Co. v. B. & S. G. R. R. Co., 52 Bar. 390.
    All that is necessary (even if so much is necessary) to sustain this action against a grantee of premises which work a nuisance to another, is that the grantee should have knowledge of the fact of the nuisance and permit or maintain its existence in defiance of the known claims of the plaintiff.
    Actual notice, and knowledge of such facts as would necessarily lead a person acting in good faith to actual notice, are one and the same thing. White v. Kelly, 42 Ill. 510.
    A want of notice or knowledge resulting from a failure to use proper diligence to ascertain it furnishes no protection to a party. 7 Wait’s Act. & Def. 373.
    What would not, in a replication, be a departure in pleading, may he given in evidence in reply to a defense under the general issue. Caldwell v. Gale, 11 Mich. 86.
    Messrs. Wiley & Meal, for appellee.
    A grantee who simply maintains a nuisance can only beheld liable upon notice and request to abate. Groff v. Aukenbrandt, 19 Ill. App. 148; Cooley on Torts, p. 611; 3 Sutherland on Damages, p. 395; Penruddock’s Case, 3 Cal. 205; Pierson v. Glean, 14 N. J. L., 36; Eastman v. Manufacturing Co., 44 N. H. 143; Nichols v. City of Boston, 98 Mass. 39; Slight v. Gutzlaff, 35 Wis. 675; Grigsby v. Water Co., 40 Cal. 396.
   Pleasahts, J.

This was an action on the case for nuisance, against appellee, in whose favor judgment was rendered below on the general verdict. The declaration contained four counts, of which the first averred that defendant “wrongfully built a dam, or has continued the same in' a certain branch or creek which ran through plaintiff’s premises;” the second, that it “ wrongfully built a dam across said creek and has maintained the same;” the third, that it wrongfully made a large excavation or reservoir in the bed of said creek * * and built or maintained a dam in said creek;” and the fourth, that it “ wrongfully constructed a dam * * * or has wilfully, wrongfully and unlawfully constructed or maintained said dam,” etc., each charging specific injuries, as that the water was backed upon him, his ford destroyed and his premises rendered unhealthy.

Thus each count attempted to charge distinct wrongs, either cumulatively or alternatively. The defendant, however, saw fit to plead the general issue, thereby admitting their sufficiency, and plaintiff lost no right or advantage on the trial by reason of any supposed defect in their form.

It appeared that the dam was constructed and the reservoir excavated in 18S3, by the Toledo, Cincinnati and St. Louis Bailroad Company, on land then owned by Jacob Fickes, at a point about thirty-seven rods from plaintiff’s lines; that the defendant company first came into existence in June, 1886, by the consolidation of the Toledo, Charleston & St. Louis Bail-road Company, the Bluff ton, Kokomo & Southwestern Bail-road Company, and the Toledo, Dupont & Western Bail way Company, and that it acquired the land on which the dam was built in November of that year.

The admission of the record of the deed from Fickes to the defendant, over plaintiff’s objection, on the ground that the absence of the original had not been sufficiently accounted for, did no harm if it was error, since the date of defendant’s organization was fixed by agreement of the parties as a substitute for the articles of consolidation offered, and that the dam was built on land of Fickes’, as above stated, was proved by parol evidence without objection. Thus it is certainly shown that neither the defendant nor either of its constituent companies constructed the dam. The only other cause of action alleged was its wrongful maintenance or continuance by the defendant.

It will be observed that the nuisance complained of is the dam itself, and not the use of it or of the reservoir created by it. The injury alleged is the effect of the dam, without regard to its use by defendant. In Groff v. Aukenbrandt, 19 Ill. App. 150, the court said: “ Cases of this kind are to be distinguished from those where the nuisance consists in the use of the erection, and every act of using it is a fresh nuisance; as the operating of manufactories that emit noisome smokes or smells, the using of a pipe that wrongfully takes the water from another, and the like, where every act of user is a new nuisance.” Here it is obvious that the use of the water in the reservoir, or the excavation of the reservoir, could not maintain or continue the dam or give it the effect complained of.

Now, it did not appear that defendant had done any work upon the dam, or any affirmative act in maintenance of it, that would of itself constitute a fresh nuisance, or increase or aggravate the injurious effect of the one already existing when it acquired the land; and the court instructed the jury, in substance, that in that case, plaintiff could not recover in this action without first notifying defendant that the dam was injurious or 'offensive, and requesting it to remove it—of which there was no evidence.

It is claimed by appellant that because such notice or request was not in terms alleged in the declaration, which was nevertheless admitted to be sufficient, he was not bound to prove it. We hold that the declaration alleges a “ wrongful ” maintenance of the dam, and thereby, though defective in form as to several particulars, a substantially good cause of action ; and if it had been proved, a verdict for plaintiff would have cured the defective statements. But the allegation of wrongfulness was material and could be proved only by evidence of something actually done by way of maintenance, or a neglect to remove the dam after such request or notice. In the absence of such, the verdict was properly against him. Groff v. Aukenbrandt, supra; Same, affirmed, in 125 Ill. 51, and cases there cited. After the evidence for defendant was closed plaintiff again offered himself as a witness in his own behalf to prove a conversation, before suit commenced, with Mr. Chapman, the general agent of defendant, who had testified on the trial, in which, as claimed, he did so notify and request said Chapman as such agent. But the court held this was necessary evidence in chief, and sustained the objection to it on that ground.

The admission or rejection of it, at that stage of the trial, was matter of discretion. If it appeared that Chapman was still present, and that plaintiff could suffer no disadvantage due to the time of its admission, we think the court in the exercise of its discretion might well have received it; but it does not so appear, and we can not say that in excluding it there was such an abuse of discretion as to require a reversal of the judgment.

Some points are suggested in the argument upon refused instructions and special findings. These instructions and findings, however, are not in the abstract. The judge seems to have given instructions prepared by himself, in lieu of those asked on both sides. We think they cover the case and state the law applicable to it with substantial accuracy.

Perhaps it was going too far to say that proof of boih the notice and request referred to was necessary to entitle plaintiff to recover, but it was harmless, since there was no evidence-tending to prove either.

Judgment affirmed.


author: Oohg'eb, J.

text:
    Hester A. Tewes et al. v. A. E. Harmon.

      Costs—-Relaxation if—Secs. 15 and 26, Chap. 33, R. S.

    1. Under Sec. 15, Chap. 33, R. S., providing that the court may limit the number of witnesses whose fees are to be taxed, action must be taken before the fee bill is made up by the clerk.
    2. In all other cases the responsibility attending the taxing of costs rests upon the clerk, and his action can only be inauired into by virtue of Sec. 26, Chap. 33, R. S.
    3. A determination by the court under the latter section, must be based upon evidence, or upon comparison thereof with the items in question.
    4. The court will not be warranted in retaxing costs merely for the reason that fees of witnesses brought to court but not called upon to testify appear in the bill.
    [Opinion filed November 30, 1888.]
    In errob to the Circuit Court of Champaign County,1 the Hon. C. B. Smith, Judge, presiding.
    Messrs. Bat & Slauson, for plaintiff in error.
    Mr. J. O. Cunningham, for defendant in error.
    The evidence in the case as heard by the court showed that a great number of witnesses were brought into court, and that six were brought in by the plaintiffs in error at an expense of more than $10 for witness fees, not to speak of sheriff’s fees, and no use made of them except to largely increase the fee bill. Against such a result has the legislation of this State been aimed. Sec. 12, Chap. 26, Rev, St. 1845; Sec. 15, Chap. 33, Rev. St. 1874. The latter section, under which the court acted, reads as follows: “ The court may limit the number of witnesses whose fees are to be taxed against any party, to such number, not less than two, as shall appear to the court to have been necessary.” This section came under consideration in the Supreme Court in a ease recently decided, but not yet reported. Chicago B. & N. Ry. Co. v. Bowman, 13 N. W. Rep. 814. Here it was held, as often before held under the former section, that the granting or refusal of a motion such as made in this case, is in the discretion of the trial court, and can only be reviewed upon an abuse of that discretion. Peoria, etc., R. R. Co. v. Bryant, 15 Ill. 438; White v. Hermann, 51 Ill. 243; White v. Murtland, 71 Ill. 250; Boyle v. Levi, 73 Ill. 175.
   Oohg'eb, J.

This was a motion made in the court below by defendant in error to retax the costs. There had been two trials of the cause in the Circuit Court, and upon each trial some five or six witnesses had been subpoenaed and weie present at the trial in obedience thereto, but were not called and sworn.

After these trials and after the clerk had made up the fee bill of the costs, at the March term, 1888, a motion in writing was entered by defendant in error to retax the costs as to these witnesses, and is based upon the following reason alone : that said witnesses “ were brought to court by the defendants (plaintiffs in error), and not called nor in any manner sworn or used.” An affidavit of defendant' in error stating the same fact was the only evidence, except the fee bills, heard in support of the motion.

The court allowed the motion and retaxed the costs as desired by the motion.

Counsel for defendant in error cite as authority for the action of the court, Sec. 15, Chap. 33, B. S., which is, 66 The court may limit the number of witnesses whose fees are to be taxed against any party to such number, not less than two, as shall appear to the court to have been necessary.”

This section clearly gives the trial court the power to limit the number of witnesses to be taxed, and the action of the court under its provision being in its discretion, could only be reviewed for an abuse of that discretion.

But we think this section has no application to the present case. The court, under this section, must act before the fee bill is made up by the clerk, and may, by proper action, determine how many witnesses shall be taxed against the respective parties, and by this determination the clerk will be governed when he makes up the fee bill.

But aside from this one instance the clerk, in making up fee bills and taxing costs, is not governed by the directions of the court, but the law has imposed the duty of determining the legality of each item charged, upon him, and his action in taxing the costs can only be inquired into by virtue of See. 26, Chap. 33, R. S. In proceeding under the last named section we hold that there must be an examination by the court, and a finding, which presupposes that evidence has been heard, or that upon an inspection of the fee bill, items are found contrary to, or not warranted by the law. From this fin'ling either party may appeal and have it reviewed, and in case the evidence and record do not sustain the finding of the trial court it can not be upheld.

This brings us to the question whether, upon such examination made under Sec. 26, the court will be warranted in retaxing the bill of costs as mado^ out by the clerk for the reason alone that witnesses taxed against defendant in error “ were brought to court by the opposite party and not called nor in any manner sworn or used.”

We think such a reason not sufficient to justify the action of the court and would repeat what we said in Highway Coms. v. Hamilton Bros., 21 Ill. App. 199, upon this subject: “ The only apparent ground for the order was that witnesses whose fees were retaxed, though subpoenaed for the defendants, were not called to testify. This would not, as a matter of course, be sufficient i eason why the party should not recover the costs of such witnesses. It often happens that witnesses are summoned in anticipation of an attack, which, tiiough threatened, is abandoned when witnesses are present. Smith v. Kinkaid, 1 Ill. App. 620.”

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

Reversed and remanded.


author: Congee, J.

text:
    John M. Clark v. Charlotte F. Clark.

      Divorce—Incest—Desertion—Condonation—Attorney and Client—Privilegcd Communications—Delay,

    1. Upon a bill for divorce charging the defendant with incest, the evidence being conflicting, this court declines to interfere with the verdict for the. complainant.
    5. It is proper to refuse an instruction to the effect that, if the complainant had sexual intercourse with the defendant after she knew that he had com-miffed incest, she thereby condoned the offense.
    3. In the case presented, it was proper to admit parol statements made by the daughter at the time she signed a statement to the effect that the defendant had not been guilty of incest with her, such statement having been introduced to impeach her.
    4. It was also proper to exclude the names of witnesses who appeared before the grand jury, there being no claim of variance between their evidence then and at the trial below. It is to be presumed that they appeared before the grand jury in obedience to law, and such appearance, if shown, would not indicate bias or prejudice against the defendant.
    5. In the absence of a cross-bill, the complainant may dismiss a bill for divorce at any time prior to a decree. Such dismissal upon payment of solicitor’s fees and alimony, does not amount to a condonation of previous acts of adultery,
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Vermillion County; the Hon. J. F. Hughes, Judge, presiding.

      Messi's. Consideb H. Willett and Chakles P. Johnson, for appellant.
    Messrs. W. B. Laweenoe, C. A. Allen and H. M. Steeley, for appellee.
   Congee, J.

This was a bill for divorce, charging appellant with incest with his daughter, India, and also with desertion. A decree was rendered as prayed, and appellant brings the record to this court and "assigns a number of errors, which we shall notice in the order they are presented in the brief of appellant’s counsel.

It is first insisted that the Circuit Court erred in excluding from the jury evidence tending to show who were the witnesses before the grand jury to procure an indictment against appellant upon the charge of incest with his daughter India, for the purpose of showing, as claimed by appellant’s counsel, the bias or prejudice existing in the minds of the witnesses introduced upon the trial of the bill for divorce. The fact, if shown, that any of the witnesses introduced upon the trial of the divorce suit were also before the grand jury, would show nothing as to their feelings toward appellant, for it would be presumed they appeared before the grand jury in obedience to law. Had they made different statements before the grand jury from those made during the trial, that could. have been shown for the purpose of impeachment, but no claim of that character is made. We think there was no error in the ruling of the court upon this question.

It appears that appellee had previously filed a bill for divorce, and that upon receiving from appellant $2,000 in settlement of attorney’s fees and alimony she had dismissed her suit, and it is next urged that this was a condonation of the charges contained in the present bill.

By our statute the process, practice and proceedings in bills for. divorce shall be the same as in other cases in chancery, and the practice in chancery is well settled that the complainant, at any time prior to a decree, has the right, unless a cross-bill has been filed, to control the fortunes of his own bill, and dismiss it, as a matter of course. Mohler v. Wiltberger, 74 Ill. 164.

Neither do we think there is anything in the point made that there was condonation by delay in filing the bill. We think the delay was not unreasonable, and was sufficiently explained.

The next objection made is that the court refused to give the jury an instruction that if appellee had sexual intercourse with appellant after she knew that the incest had been committed, such act would condone the adultery of the husband.

This instruction was properly refused ; first, because there was really no sufficient evidence upon which to base it; and secondly, it is too general in its language. To have such an effect, the intercourse upon appellee’s part must have been voluntary. The language of the instruction would embrace any act of sexual intercourse, even though procured by force upon the part of the husband, and resisted by the wife.

It is next objected that it was improper to show the statements of India Clark made at the time she executed a written statement in which she declared that her father had not been guilty of the crime of incest with her.

Such written statement was placed in evidence to contradict her evidence given during the trial, and was no more than proving her verbal statements made prior to the trial for the purpose of impeaching her ; hence it follows that all that she said at the time of making such supposed contradictory statement was proper to go to the jury.

Iler written statement was not a contract, and therefore all the authorities relied upon to show that a written contract can not be changed or modified by verbal statements or explanations made at the time, are not in point.

We have carefully examined the record upon the point made that privileged communications were given in evidence, contrary to the well established rule of law in such case, and while professional etiquette was not kept at the high standard to be desired, we can not say that the rule itself has been violated.

As to the merits of the case, we do not care to enter into details. The charge was a revolting one, hut the jury were the sole judges of the relative weight of the evidence of appellant and his daughter, the two principal witnesses upon that point, and as, they have chosen to believe the daughter’s statement of the affair, we see no good reason for interfering.

The decree, of the Circuit Court will be affirmed.

Decree affirmed.


text:
    Daniel T. Foster and John Eddy v. Richard W. Hart.

      Evidence—Secs. 4, Chap. 51, B. S.—Replevin—Partnership.

    1. In an action of replevin to recover a wagon from a firm, of which a surviving partner in a firm which had owned the wagon is a member, the plaintiff is incompetent as a witness in regard to statements and admissions by the deceased member of such former firm, touching an alleged sale to the plaintiff.
    2. Purchasers of a partnership interest from an executor, are representatives of the. deceased as to the, property purchased, and are within the protection of Sec. 4, Chap. 51, R. S.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Mr. John T. Lillabd, for appellants.
    A purchaser from an executor stands in the shoes of the executor and succeeds to all his rights. He is a “ representative” of the deceased and of his estate, as to the property purchased. Merrill v. Atkin, 59 Ill. 19; Davis v. Davis, 26 Cal. 37; Stuckey v. Bellah, 41 Ala. 700; Wamsley v. Crook, 3 Neb. 344; Fisher v. Morse, 9 Allen, 440.
    An éxecu tor, or other party who has sold property, may be made a party to the record by notice to come in and defend a suit brought by a third party claiming the property, Marlott v. Clary, 20 Ark. 281; Brewster v. Countryman, 12 Wend. 446; Reggio v. Brogiotti, 7 Cush. 166; Craighead v. McLoney, 99 Pa. St. 211 (216); Bachelder v. Brown, 47 Mich. 366; Hall v. Hamblett, 51 Vt. 589; 1 Sutherland on Damages, 140.
    No adverse party, or person having an interest adverse to a surviving partner, is competent to testify to an admission or conversation with a deceased partner, not occurring in the presence of the surviving partner. Ill. Statutes, Chap. 51, Sec. 4; Henry v. Tiffany, 5 Ill. App. 548; Hanna v. Wray, 77 Pa. St. 27.
    *e These sections of the statute like all other remedial statutes have a spirit that extends beyond the mere letter, and it is the duty of the courts to so construe such statutes as to effectuate the object of the law-makers as gathered from the enactment. A thing within the intention is within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention.” Redden v. Inman, 6 Ill. App. 55; Boynton v. Phelps, 52 Ill. 210; Whitmer v. Rucker, 71 Ill. 410; Stone v. Cook, 79 Ill. 428; Reinecke v. People, 15 Ill. App. 241; Perry County v. Jefferson County, 94 Ill. 214; People v. Hoffman, 97 Ill. 234; People v. Canal Com’rs, 3 Scam. 153; Berdan v. Allan, 10 Ill. App. 102; Anderson v. C., B. & Q. R. R. Co., 117 Ill. 26.
    Messrs. Neville & Liedley, for appellee.
    We submit that Mary J. McBean, as the executrix of Isaac McBean, or in any capacity, had no title and no right whatever to make a sale of any of the partnership’s property of McBean & Foster, either by joining the surviving partner in a sale, or in any other way. On the death of Isaac McBean the legal title to all the partnership property passed by operation of law to the surviving partner, D. T. Foster, and he alone had power to make sales of the partnership property. The appellant Eddy is abundantly proved by this evidence to have had knowledge of the death of Isaac McBean, and of the further fact that the wagon in controversy was a part of the partnership property of McBean & Foster prior to the sale to Hart, of which he had notice also. The appellant Eddy is presumed by the law to know that the personal representative of a deceased partner has no title to the partnership property or any part of it. It certainly can not with dignity be argued that Mrs. McBean could in any way be made liable on any implied warranty of the title of the wagon in controversy for the reason that one who knew that the wagon was partnership property is presumed to know that she could have no title whatever to it. Again, there is no implied warranty of title to a chattel by a vendor unless the vendor at the time of the sale be in possession, and that possession must be such as imports title in himself. The possession of an agent, an officer of the law, or of an executor or administrator, is not such as will create or support an implied warranty of title upon the sale of a chattel. There is nothing in the evidence to show that Mrs. McBean ever had possession of this wagon. In fact, the evidence shows the contrary. ' On the above propositions, we ask the court’s attention to the following authorities: Miller v. Jones, Adm’r, 39 Ill. 54; Belton, Adm’x, and Yates, Sur., v. Fisher, 44 Ill. 32; Bond et al. v. Ramsey, 89 Ill. 29; Vincent & Bertrand v. Morrison, Breese, 227; Par. on Contracts, Vol. 1 (6th Ed., star p. 575); Defreeze v. Trumper, 1 Johns. 274; Vibbard v. Johnson, 19 Johns. 77; Reid v. Barber, 3 Cow. 272; McCoy v. Artcher, 3 Barb. 323; Bucknam v. Goddard, 21 Pick. 70.
    If an executor or an administrator makes any contract which he is not authorized by the will or the law to make he is personally liable on the contract, and the estate is not liable. Cornthwaite v. Nat. Bank, etc., 57 Ind. 268; East Tenn. Iron Co. v. Gaskel, 2 Lea. 742; Merchants’ Bank v. Weeks, 53 Vt. 115; Jessup v. Jessup, 102 Ill. 480; Ferrin v. Myrick, 44 N. Y. 315.
    Mary J. McBean could lawfully have had no more connection with the sale of this wagon to Foster & Eddy than any other person could have had. Statute, Ch. 3, Secs. 87 to 90; Forrester, Ex., v. Oliver, Adm’r, 1 Ill. App. 259; Remick, Adm’r, v. Ewing, 42 Ill. 342.
    The pretended sale of the wagon in controversy by Foster to Foster & Eddy, i. e., to himself and Eddy, is and was absolutely void as against the executrix. Nelson v. Haynes, 66 Ill. 487.
   Conger, J.

This is a replevin suit for a wagon worth about §200. The wagon was owned by McBean & Foster, a firm conducting a bus line and transportation business in Bloomington, Illinois, until March 30, 1887, when McBean died, leaving Foster, his surviving partner, and Mary J. McBean, his executrix, to settle his estate. On June 1, 1887,'the said surviving partner and executrix sold the undivided partnership interest of Isaac McBean, deceased, in the bus line and transportation business, including the wagon in controversy, to appellant, John Eddy, who formed a partnership with the surviving partner, D. T. Foster, to continue the bus line and transportation business. On June 11, 1887, appellee, Hart, replevied said wagon from Foster & Eddy, claiming he had bought the wagon of Isaac McBean some two weeks before McBean’s death.

Appellee, Hart, against the objection of appellants, was permitted to testify as to this transaction with McBean, including the statements of McBean in reference thereto.

The only question we deem it necessary to notice is, whether Hart was a competent witness by whom to prove the statements and admissions of McBean.

Section 4 of Chapter 51, R. S., provides: 56 In any action, suit or proceeding by or against any surviving partner or partners, * * * no adverse party, or person adversely interested in the event thereof, shall by virtue of section 1 of this act be rendered a competent witness to testify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation.” * * * Had Hart sought to recover the wagon in question from Foster, the surviving partner, before the interest in such property had been sold to Eddy, it is quite clear McBean’s conversations and admissions could not have been proven by Hart, when made, as in this case, in the absence of Foster. And we perceive no good 2'eason why the same role would not be applied under the circumstances existing in the case at bar.

The intention of this limitation was to secure mutuality of right in testifying, and that one party to the suit should not testify in a case when the party with whom the contract was made, or the ti'ansaction was had, was dead, or from any cause incapacitated from testifying. Whitmer v. Rucker, 71 Ill. 410.

The section under consideratio2i should be construed so as to effectuate the object and intention of the Legislature, and that was, when a pai'ty to a contract is dead, those who succeed to his rights in the subject-matter of the cont2'act, whether as executors, heirs, surviving partners or purchasers, shall be protected from the statements and conversations of the deceased, made in their absence, when sought to be shown by the testimony of the adverse party. Were it otherwise, the moment the interest in property of a deceased partner should be sold, a party claiming such property, whose mouth up to that time ■ would be closed by the law, could claim it as against the purchaser and maintain his claim by testifying to the conversations of the deceased; thus practically destroying the beneficial effects of the statute.

If the property of a deceased partner can only be protected against the testimony of an adverse party up to the time it is unsold, and the moment it passes into the hands of a pur. chaser it is no longer under such protection, the right of the surviving partner to sell the interest of his deceased partner would be of little value.

We hold in this case that the testimony received was not competent, first, because it was substantially a suit against Foster as surviving partner, and secondly, because Foster and Eddy, as the purchasers of the deceased’s interest in the property. had a right to invoke the aid of the statute, the same as Foster could had he been sued alone as surviving partne2\ The judgment of the Circuit Coui-t will be reversed and the cause remanded.

Reversed and remanded.


text:
    The Phoenix Insurance Company of Hartford, Connecticut, v. Isaac M. Frisch and David Frisch, Partners.

      Insurance—Pleading—Damages—Practice.

    1. A general demurrer can not he sustained to a declaration containing one good count.
    2. Up m appeal from a judgment by defendant it will be presumed that the evidence was sufficient to sustain the finding as to damages, when it is not preserved in the record.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Sangamon County; the [Ion. J. A. Creighton, Judge, presiding.
    Messrs. Wilson & J ones, for appellant.
    Messrs. Jones & Salzenstein, for appellees.
   Conger, J.

This is an action of assumpsit. The declaration contained a special count upon an. insurance policy, and also the common counts. To this declaration appellant filed a general demurrer, which the court overruled, and thereupon appellant filed a plea of the general issue; but this was, hv leave of court, withdrawn by appellant; and refusing to plead further, a judgment by default was taken against it, evidence heard by the court, and appellee’s damages assessed at the sum of 81,067.81, upon which judgment was rendered against appellant

The errors assigned upon the record are:

1st. The court erred in rendering judgment against appellant.

2d. The court erred in overruling the demurrer to the plaintiff’s declaration.

Without determining the sufficiency of the sjiecial count, there can he no question that the common counts were good, and it is well settled that a general demurrer can not be sustained to a declaration containing one good count, however many bad ones there may be: Reece v. Smith, 94 Ill. 362, and authorities therein cited.

The evidence heard by the qourt upon the assessment of damages is not preserved in the record, and wo must therefore presume it was sufficient to support the finding of the court. Motsinger v. Coleman, 16 Ill. 71.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: OomdeRj J.

text:
    Jefferson Parrott v. Joseph B. Swain.

      Entire Contracts—Action to Recover for Threshing—Evidence—Error without Prejudice.

    1. It is proper to sustain an objection to a question which calls for a conclusion from other facts.
    2. This court will not reverse for an error which has worked no injury to the appellant.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
    Messrs. O. H. Dümmer and Oscar A. De Letjw, for appellant.
    Messrs. Morrison & Whitlock and George W. Smith, for appellee.
   OomdeRj J.

This was a suit by appellee against appellant to recover for threshing the wheat in a nine-acre wheat field of appellant.

The defense was that the contract of threshing also included another field of appellant containing about fourteen acres, and lying one and a half to two miles distant from the former.

The work was finished in the first field on Saturday afternoon from five to six o’clock, and appellee desired to move his machine to the second field and finish that also that afternoon, claiming that on Monday he was compelled to work elsewhere, and also insisting that the work could be done that evening. Appellant insisted that it was too late, and that they could not move the machine, set it up and complete the job until after dark, and that his men whom he had hired were not willing to work so late.

The evidence was conflicting as to what the contract was, as to the time the first field was finished, and also the time it would take to'complete the second. Verdict and judgment for appellee for §7, being his full charges for threshing the first field.

Several of the witnesses were asked by appellant’s counsel the following question: “ Was there time that night to go over to the other wheat field and thresh the wheat there that night?” Objection being made, the objection was sustained and exception taken, and this is the principal error relied upon by appellant.

The most serious objection to the question is, that the answer to it would only be the witnesses’ conclusion from other facts, such as the distance over which the machine would have to be moved, the time required to move it, the time the first field was finished, and the time it would require to thresh the second field.

All these separate facts (unless perhaps the last) were gone into by the witnesses, so far as the parties upon either side desired, without objection, and the ultimate conclusion to be reached from them all, whether there was or not sufficient time to thresh the second field in a reasonable and customary manner, would have to be determined by the jury.

Appellant, upon cross-examination, did give to the jury his opinion that it was too late, after finishing the first field, to complete the second that night. Nearly all the witnesses gave their opinion as to the time when the first field was finished, and the only expert witness upon the question of the time it would take to move the machine, stated that it would take from one and three quarters of an hour to two hours to do so.

We are therefore of the opinion that the jury were as fully informed upon this question as they "would have been had the excluded evidence been admitted.

It is also urged that the court erred in sustaining the objections to the evidence offered by appellant as to his damages; but as the verdict of the jury can only be sustained upon the theory that appellee’s version of the contract was the true one, the error, if any, would work no hardship to the appellant; for if appellee complied with his contract, and threshing the second field was not done because of the fault of appellant, as the jury have found, no question of damages to appellant from a failure to thresh the second field could arise.

The j udgmeut of the County Court will be affirmed.

Judgment affirmed.


text:
    James M. Gooch v. John M. Tobias.

      Trespass—Instructions.

    1. This court reverses a verdict for the defendant in an action of trespass for destroying certain goods, on the ground that instructions given for the defendant call for a higher degree of proof than is required in civil cases.
    2. The law does not require the plaintiff to “satisfy” or “ convince ” the jury by a preponderance of evidence in such cases.
    [Opinion filed November 23, 1888.]

      Appeal from the Circuit Court of Clark County • the lion. J. W. Wilkin, Judge, presiding.
    Messrs. Golden & Hamill, for appellant.
    Mr. James W. Geaham, for appellee.
   Wall, P. J.

This was an action of trespass for destroying certain goods of the plaintiff. The verdict was for the defendant and judgment was rendered accordingly, a motion for a new trial having been overruled.

The court gave the following instructions at the instance of defendant:

“The court instructs the jury that, while circumstantial evidence is legal and competent in this case, vet in order to make his case by circumstantial evidence, plaintiff must have proved such circumstances as to -satisfy the jury by a preponderance of the evidence that the defendant committed the wrongful act charged.
“The court instructs th-e jury that if they believe from the evidence that the defendant, John M. Tobias, or some other person, destroyqd the goods of the plaintiff, then in that event the jury should return a verdict of not guilty, unless the jury are convinced by a preponderance of the evidence in the case that the defendant, John M. Tobias, is guilty.”

These instructions call for a higher degree of proof than the law requires in order to warrant a recovery in civil cases, and in the light of the following decisions of the Supreme Court, it was error to give them: Herrick v. Gray, 83 Ill. 85; Graves v. Caldwell, 90 Ill. 612; Protection Life Ins. Co. v. Dell, 91 Ill. 174; Ruff v. Jarrett, 94 Ill. 475; Stratton v. Central City Horse Ry. Co., 95 Ill. 25.

The evidence was such that it is impossible to say the plaintiff was not unduly prejudiced by this action of the court. The judgment will be reversed and the cause remanded.

Reversed and rema/nded.