text:
    Isaac Edwards v. The Trustees of Schools.
    , Negotiable Instruments—Note—School Funds—Loan on Personal Security—Signature after Maturity—Agreement to Forbear—Consideration-Pleading.

    1. A plea in abatement to several counts of a declaration is waived by a subsequent plea in bar.
    2. The loan of school funds upon personal security in a larger amount than is prescribed by statute will not render void a note given therefor.
    3. A special plea which simply traverses a portion of the facts which the plaintiff is bound to prove to establish his right to recover under the declaration, is bad as amounting to the general issue.
    4. In an action on a promissory note against one who claims that his signature was affixed after the maturity of the note, this court holds that the evidence does not show a new and express consideration.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Lee County] the Hon. John P. Altgeld, Judge, presiding.
    Messrs. J. E. Lewis and A. K. Trusdell, for appellant.
    Messrs. P. M. James and Dixon & Bethea, for appellees.
   Upton, J.

This was an action of assumpsit commenced in the Circuit Court of Lee county on a promissory note of the following tenor:

“ Amboy, December 12, 1868.
“$150. One year after date we promise to pay to the Board of Trustees of Schools of Township 20, Range 10, in Lee county, for the benefit of the school fund of said township, one hundred and fifty dollars, with interest at the rate of ten per cent per annum from date until paid, payable semiannually in advance.
“ And we further agree to give any additional security which said trustees may at any time require, and no extension of the time of payment, with or without our knowledge, by the receipt of interest or otherwise, shall release us, or either of us, from the obligation of payment.
Signed “H. S. Sweet,
“ R. P. Treadwell,
“ Cyrus Bridgemar,
“ Isaao Edwards.”

The amended declaration contained five special counts, and the consolidated common count.

The appellant interposed a plea in abatement to the 1st, 2d, 3d and áth counts, a general demurrer to‘the 5th count and the general issue to the 6th count.

These several pleas were filed in May, 1885. On the 16tli of January, 1888, the appellant filed in said cause two pleas: first, non-assumpsit to the declaration; second, a special plea in bar to the whole declaration, averring that the note in question was given for township school funds, loaned on the personal security of the makers thereof, and in excess of the amount permitted by the statute of this State to be loaned on personal security, and therefore void, etc.

To this second plea appellees demurred, and that demurrer was sustained by the trial court, and appellant elected to stand by his said plea. On the 25th of April, 1888, appellant filed his other special plea in bar to the fifth count of the declaration, averring therein that the sole cause of action was the note in the fifth count of plaintiff’s declaration mentioned; that long after said note became due, appellant signed it, without any good or valuable consideration therefor, etc.; to which plea a demurrer was interposed and sustained upon the ground that it amounted to the general issue, and the appellant elected to stand by said plea.

The issues presented by the pleadings arise upon the plea of non-assumpsit, as before stated, and the correctness of the ruling of the trial court upon the demurrer of the several pleas as above set forth.

The question sought to be raised by the several pleas in abatement tiled in this case in Hay, 1885, are entirely nugatory, being waived by appellant in pleading over to the whole declaration in January, 1888. Klein v. Currier, 14 Ill. 237.

First. Was the appellees’ demurrer to appellant’s plea filed January 16, 1888, properly sustained by the trial court?

This plea avers that the several supposed promises in said declaration mentioned were made upon consideration of township school funds of township 20, range 10, in Lee county, Ill., then under control of appellees, and by it loaned to one H. S. Sweet in a sum exceeding $100, to wit, in the sum of $150, upon the personal security of R. P. Treadwell and Cyrus Bridgeman, whereupon, etc., said promises were void, and appellant prayed judgment, etc.

Sec. 57, Chap. 98, Gross’ Stat. of Ill., 701, among other things, provides that “ all loans of school moneys by township treasurers, etc., for a longer term than one year, or for a larger sum in amount than one hundred dollars, should be secured by mortgage on unincumbered real estate in double the value of the amount of such loan,” etc.

Appellant’s contention, therefore, is that under the above recited statute the note in said plea mentioned and here in question is void and can not be enforced. To this we can not yield our assent. The obvious intent of the statute in question was to protect the school funds and the interest of the public therein. It must, therefore, be construed with that intent in view. The defendant’s plea in that behalf clearly can not be availing to defeat a recovery in this case, and the demurrer thereto was properly sustained. 2 Morawetz on Corp., Secs. 673 and 674, and eases there cited; Gold Mining Co. v. Nat. Bank, 96 U. S. 640; National Bank v. Case, 99 U. S. 633; Little v. O’Brien, 9 Mass. 423; National Bank v. Stewart, 107 U. S. 676; Nat. Bank v. Whitney, 103 U. S. 99; Lester v. Howard, 33 Md. 558.

Second. Was the demurrer to appellant’s plea Sled April 25, 1888, rightfully sustained? That plea applied to the fifth count of the declaration only. It alleged that appellant signed the note in question after the same was delivered, and after it fell due, without valid consideration therefor.

This plea was bad. It was but a traverse of a portion of the facts alleged in the fifth count of the declaration, and which appellee was bound to prove in order to establish its right to recover in this action. Knoebel v. Kircher, 33 Ill. 308; Klein v. Currier, supra.

When it is shown that defendant’s signature is genuine, then a consideration is presumed, and the further presumption attaches that the note was signed at the time of its execution, or at the date thereof. But when it is shown that the signature was put thereon after the execution and delivery of the note, in pursuance of some subsequent arrangement, then the further proof is upon the plaintiff to show a new and express consideration therefor. Klein v. Currier, supra. This want of consideration, we think, is fully established in this case.

The plea alleges that appellant signed the note in question after its delivery, and after the same became due by its terms, in consideration of an agreed forbearance to sue the original makers thereof for “a reasonable” time, and alleges actual forbearance and delay to collect the note, according to such agreement, for “ a reasonable time.” This is the only consideration claimed by appellee, and the evidence wholly fails to establish that claim.

There is no evidence tending to show an agreement to extend the payment or to forbear the collection of the note to any definite or fixed time, or even that a reasonable time was agreed upon, or that appellant had any notice, knowledge or information of an agreement to extend payment or forbear collection of the note in question when he signed the same, and hence that could not have been, as to appellant, a money consideration in signing the note.

Therefore, an essential element of a cause of action against the appellant is wholly wanting, and it was erroneous to give judgment for appellees when their evidence failed to show any sufficient consideration for the alleged promise. Joslyn v. Collinson, 26 Ill. 62; Blanchard v. McCuller, 7 Ill. App. 436; Cassell v. Morrison, 8 Ill. App. 175; Anderson v. Morville, 10 Ill. App. 240; McHard v. Ives, 5 Ill. App. 400, and cases cited therein.

For this reason the judgment of the Circuit Court is reversed without costs or judgment for costs against appellee, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Upton, J.

license: Public Domain

text:
    John B. Cooper v. Anna Cooper.

      Trover—Husband and Wife—Personal Property of Wife—Live Stock— In crease—Instructs ons.

    1. In an action of trover brought by a widow to recover a number of horses and colts which had been in possession of her husband, this court holds that the evidence sustains the verdict for the plaintiff.
    2. It is proper to refuse instructions which are contained, in substance, in others given.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Kankakee County; the Hon. H. J. Pillsbuey, Judge, presiding.
    Messrs. Richardson Bros., for appellant.
    Messrs. Wm. Potter and H. K. Wheeler, for appellee.
   Upton, J.

This is an action of trover brought by the appellee to recover the value of a number of horses and colts to which appellee claims ownership, and which it is claimed appellant, prior to the commencement of this suit, converted to his own use.

The appellee is the widow of John W. Cooper, deceased, and the step-mother of the appellant. It was claimed on the trial in the Circuit Court, on the part of appellee, that in the year 1877 a black brood mare was purchased of one Seymore Del any for sixty or seventy dollars, and paid for by the appellee with her own means. That her husband, John W. Cooper, with whom appellee was then living, purchased this mare for appellee, and she was brought on to, and kept at the farm of her said husband, being a large farm comprising one thousand acres of land, worked and used upon the said farm, and while being so kept produced several colts, and it is for the produce or descendants of this black mare that this suit is brought.

- There was evidence given in the court below tending to show the purchase of this mare for appellee, by and with the advice of her husband, as being the best use to which appellee could put some money she had in her own right, and which she was desirous to invest. That her husband not only advised the purchase of this mare by appellee, but offered to and did, in fact, make the purchase for her, and agreed to keep the mare for appellee upon the farm, and that appellee should have the increase thereof, free of cost to her, seems fairly probable from all the evidence and circumstances in evidence in the case.

It further appears from the evidence that at the death of the husband of appellee, which was about six months prior to the commencement of this suit, there were some eight or nine of the descendants of this black mare living, and which, at the time of the commencement of this suit, were in the possession of the appellant, except one or two thereof, which had been before that time sold by appellant.

It further appears that this black mare and her descendants were kept, in the summer time, in a pasture which formed a part of the farm on which appellee and her husband resided, with other stock, consisting of thirty or more horses and colts, seventy-five or eighty head of horned cattle, and from 1,000 to 1,800 slieep, the property of appellee’s husband; that in the winter time, sometimes a portion of the col ts were wintered at the small farm of appellant, which was near to and adjoining that of appellee’s husband, and consisted of 100 acres of land; but that appellee had no knowledge or information that appellant claimed to be the owner of the black mare or any of the colts or descendants therefrom until after the death of her husband.

It further appears that at the time of the commencement of this suit appellant had in his possession (or the proceeds of) eight of the descendants of this black mare, which were of the value of §1,020 in tho aggregate, for which, before suit was brought, demand was made of appellant, and which he refused to deliver. It was not denied on the part of the appellant that he had these colts in his possession, or the proceeds thereof, or that the number or value thereof was not as above stated, but he insisted and contended that his father, the husband of appellee, purchased the black mare for him, the appellant, under an agreement that appellant was to have the produce of the mare by paying for the service of the horse begetting such produce, which appellant claimed he did, and that therefore these colts and horses here in question were his property, and hence he refused to surrender the same to appellee on her demand therefor.

It was claimed by appellant that, under the alleged agreement with his father, he had had the exclusive control and possession of all the colts and horses- here in question for a period of more than five years before the commencement of this suit. The appellant pleaded the general issue and the statute of limitation of five years.

The cause was heard by a jury and a verdict was rendered for the appellee, plaintiff below, in the sum of §1,000, upon which the Circuit Court rendered judgment, after refusing appellant’s motion for a new trial, and the case is before us on appeal, and errors are assigned upon the record.

As to the question of the possession of these horses and colts there was some conflict in the testimony, but we think it fairly preponderates in favor of appellee’s claim that the colts were in fact in the possession of John W. Cooper, the father, and not the appellant; at least the evidence upon that point was sufficient to warrant the jury in so finding, and to preclude us from interfering with the verdict for want of evidence on that point to sustain it; and indeed, upon the merits of the case, as shown by the record before us, we think the appellee’s contention ought to prevail.

It is insisted, however, by the appellant, that the Circuit Court erred in giving appellee’s 1st, 2d and 3d instructions upon the question of notice.

These instructions were not erroneous, under the evidence in the case; nor was the modification by the court of the 4th, 5th and 6th of appellant’s instructions on the same point erroneous, and for the same reason.

The refusal of appellant’s 9th, 10th, 11th, 12th and 13th instructions by the court was not erroneous, as they had been given, in substance, in other instructions in the case, or were erroneous and were, therefore, properly refused.

Seeing no error in the record before us, the judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Lacey, P. J. O. B. Smith, J.,

text:
    The Home National Bank of Chicago v. The Estate of James S. Waterman.

      Guaranty—Debt of Another—Extension of Time without Consent—Estoppel—Corporations.

    1. Where the proper construction of a contract is doubtful, the conduct of the parties, their manner of treating it, and all the circumstances may be resorted to in order to ascertain its meaning.
    2. The death of one of several guarantors works a revocation of any authority previously existing to extend the time of payment of an indebtedness.
    3. A personal surety for the payment of a debt is released by an extension of the time of payment by valid agreement between the parties without his consent.

      4. To render a promise to pay the debt of another an original undertaking, some benefit must move between the promisee and promisor, and the original debt must be surrendered.
    5. In the .case presented, the assignment of valueless claims for the benefit of the grantors does not estop the appellee from setting up the extensions of the indebtedness.
    6. It is also held by this court that the agreement involved was a guarlinty only; not an assumption of the indebtedness referred to therein.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Kane County; the Hon. IsaAo J. Wilson, Judge, presiding.
    On the 10th day of August, 1882, the Home National Bank of Chicago was, and still is, a banking corporation, duly organized and existing under the laws of the United States, and doing business as such in the city of Chicago.
    On the iast named date the Sycamore Marsh Harvester Manufacturing Company was a manufacturing corporation, organized and existing under the laws of the State of Illinois, and at said date,- and for several years thereafter, carried on its business at Sycamore, Illinois.
    On said 10th of August, 1882, said Sycamore Marsh Harvester Manufacturing Company was indebted to the said Home National Bank of Chicago, for money loaned, to the amount of $20,000, which indebtedness was evidenced by two promissory notes, each for the sum of $10,000, and each made by said Sycamore Marsh Harvester Manufacturing Company, one dated June 5, 1882, and the other dated June 26, 1882, both of wdiich were payable in ninety days after date to, and were held by, said bank.'
    On the 10th day of August, 1882, said bank held, by pledge of said manufacturing company, and as collateral security to said claim of said bank against said manufacturing company, nine packages of fanners’ notes, so-called (being notes originally taken by said manufacturing company for goods sold by it to farmers and others about the country), said nine packages being numbered respectively, 0,302, 0,413, 0,568, 0,653, 0,654, 0,655, 0,659, 0,662 and 0,663, the total amount of which notes, at their face value, was 821,116.71.
    On said 10th day of August, 1882, O. W. Marsh, WW. Marsh, William Loomis, James 8. Waterman, Charles Brown, Charles Kellum and O. M. Bryan, being stockholders of said Sycamore Marsh Harvester Manufacturing Company, and owning a large majority of the stock of said company, executed and delivered to said bank their written agreement, of which the following is a copy :
    “ C. W. Marsh, Pres. W. W. Marsh, Snpt.
    “ J. S. Waterman, Y.-Pres. A. M. Stark, Sec. and Treas.
    “ Incorporated March 31, 1869.
    “ Office of The Sycamore Marsh Harvester Manufacturing Company,
    “Syuamore, BeKalb Co., Ill., August 10, 1882.
    “ Geo. W. Fuller, Esq., Cashier Home National Bank, Chicago, Ill.

      “Dear Sir: We, the subscribers, stockholders of the Sycamore Marsh Harvester Manufacturing Company, hereby guarantee, if you will deliver to C. W. Marsh, president, or to A. M. Stark, secretary of said company, the farmers’ notes now held by your bank as collateral to its claims against our said company (said notes being contained in packages 0,302, 0,413, 0,568,0,653,0,654, 0,655, 0,659, 0,662, 0,663—total 821,116.71), for the purpose of collection, that said collaterals shall be replaced by others equally acceptable to you in character and amount during the month of February, or if not that you shall be paid on or before March 1, 1883, such proportion of our company’s debt, or any extension thereof made in the meantime, in cash, as said farmers’ notes are held to secure. For the faithful performance of these conditions we hereby bind ourselves to and with you as the cashier of said bank.
    “O. W. Marsh,
    “W. W. Marsh,
    “ W illiam Loomis,
    “ J. S. Waterman,
    “Chas. Brown,
    “Chas. Kellum,
    “ O. M. Bryan.”

      That thereupon, in consideration of the delivery of said paper to said bank, and of the undertaking of the signers thereof therein expressed, said bank delivered to said C. W. Harsh, for-said manufacturing company, as president, said nine packages of farmers’ notes, and said Marsh thereupon receipted for the same, said receipt therefor being indorsed on the back of said contract and now appearing thereon.
    The notes thus delivered to C. W. Marsh for said company aforesaid were sent by it to a bank at Lincoln, Nebraska, for collection, and they were paid in part and the money received by the manufacturing company.
    That said collaterals, said farmers’ notes, were not replaced by others during the month of February, 1883, as contemplated and provided in and by said contract, nor were the same at any time after said 10th day of August, 1882, either returned or replaced by others, as contemplated by said contract.
    Neither was said bank paid its said indebtedness referred to in said contract on or b ;fore March 1, 1883, as therein provided, nor has it ever been paid said indebtedness in full, but the amount of $16,605.49 remains unpaid, figuring interest to February 7, 1888.
    James S. Waterman, one of the signers of the agreement of August 10, 1882, departed this life on the 19th day of July, 1883, leaving a last will and testament, which was duly proven in the County Court of DeKalb county, in which court the estate of deceased is being administered, Philander M. Alden and George S. Kobinson being the executors of said will.
    On the first of July, 1884, the claim of the Home National Bank against said estate, based upon said agreement of August 10, 1882, was filed in said County Court, there being then due said bank on account of said indebtedness referred to in said agreement, $15,932.99. A final determination of said claim, adversely to the bank, was made by said court on the • 24th day of May, 1887, and an appeal was taken by the bank to the Circuit Court of DeKalb county, and because of the interests of the judge presiding in that court, the venue was changed to the Circuit Court of Kane county. The case was by agreement of parties submitted to the court for trial without a jury. A hearing was had on the 6th and 7th days of February, 1888. On the 7th day of May, 1888, the court finds for the defendant and the plaintiff appeals to this court.
    While the foregoing facts, which are not controverted, are the principal ones upon which the claim of the bank is based, yet there are many others which have been made to appear from the evidence.
    Additional and subordinate facts in the case:
    The said indebtedness of said Harvester Manufacturing Company to said bank was extended from time to time upon the application of said company, until the 30th day of June, 1884, there being then due the said bank on account of said indebtedness the sum of $15,925.49, the difference between that amount and the sum of $20,000 having been paid by said company in the meantime. That of the whole number of extensions, four extensions were made before the 19th of July, 1883, and three extensions were made after that date.
    That at the several times at which said indebtedness was extended, between said 10th day of August, 1882, and the 30th day of June, 1884, the day of the entry of judgment thereon as hereinafter stated, the old notes executed by said Sycamore Marsh Harvester Manufacturing Company given therefor were surrendered, and new notes executed by the said company were given for said indebtedness. That not only the notes originally given to evidence such indebtedness, but all subsequent notes given upon the several extensions of such indebtedness, were what are called “judgment notes,” having attached thereto as a part thereof a power of attorney authorizing the entry of judgment upon said notes at the option of the holder thereof, either before or after the same were due, according to the terms thereof.
    This is appellee’s statement and is added:
    The indebtedness of the Sycamore Harvester Manufacturing Company to the Home ¡National Bank being in two notes, each for $10,000, at the time the agreement guaranty was made, continued to be renewed from time to time for the same sums respectively until ¡November 28,1883. On October 3, 1883, after the death of J. S. Waterman, one of the $10,000 notes had been renewed as usual. On November 28, 1883, the other $10,000 note was divided into two notes, one for $5,500 and the other for $4,500. On January 16, 1884, the $4,500 note was paid from the proceeds of drafts drawn by the maker, the Harvester Company, upon the Lincoln National Bank, which drafts had been deposited with the note for $4,500 when it was given, and were payable at its maturity. At the time of giving this $4,500 note and the deposit of the drafts above mentioned, the Home National Bank surrendered to the Harvester Company all the farmers’ notes remaining in its hands, which had been deposited as collateral for the whole indebtedness, and which then amounted to about $8,000. At least three extensions of the notes representing the indebtedness of the company were made after the death of James S. Waterman, which occurred on July 19,1883.
    That some time before the death of Waterman, a corporation called the Marsh Binder Manufacturing Company, had been organized under the laws of the State of Illinois, the stockholders in which were sribstantially the same as those in the Sycamore Marsh Harvester Manufacturing Company, the said C. W. Marsh being president of both said companies, and until his death the said J. S. Waterman being director and vice-president of both said companies. That said Marsh Binder Manufacturing Company, upon its organization, succeeded to the plant and manufacturing business of the Sycamore Marsh Harvester Manufacturing Company, and from thence the assets of the last named company consisted principally in the stock of the binder company, old machines and bills and accounts receivable.
    That on the 30th day of June, 1884, a number of judgments were entered against said Sycamore Marsh Harvester Manufacturing Company and against said Marsh Binder Manufacturing Company, respectively ; and on the same day said Marsh Binder Manufacturing Company made an assignment for the benefit of its creditors, under the insolvent laws of the State of Illinois.
    That while said Sycamore Marsh Harvester Manufacturing Company had on said 30th day of June, 1884, become unable to pay all its liabilities as the same matured, yet it had a very large amount of assets, among which was a large number of doubtful and desperate farmers’ notes, the greater portion of which were in the hands of C. W. Mosher, Lincoln, Nebraska, for collection. It also had accounts and agricultural implements in the hands of the agents of said company, all of such assets aggregating nearly $200,000 bf supposed value, an amount of assets supposed by the officers of the manufacturing company to be quite sufficient to pay ultimately all its debts and liabilities, but it turned out differently.
    That on said 30th day of June, 1884, said Home National Bank having heard of the entry of said judgments and of said assignment, procured a judgment to be entered in its favor against said Sycamore Marsh Harvester Manufacturing Company for said sum of $15,925.49, the balance of said indebtedness of $20,000 then due said bank, said judgment being entered in the Superior Court of said Cook county, in said State of Illinois, upon which judgment execution was immediately issued, but nothing could be made thereon.
    That no part of the said indebtedness evidenced by said judgment aiter its rendition has ever been paid to said bank.
    That shortly previous to the entry of said judgment against said Harvester Manufacturing Company and the assignment of said Binder Manufacturing Company, to wit, on the 20th day of June, 1884, said Binder Mmufacturing Company transferred to said Harvester Manufacturing Company, by bill of sale, a quantity of harvesters and binders then in the hands of certain agents of said Binder Company; and at the same time said Binder Company transferred to said Harvester Company three certain commission contracts referred to in said bill of sale.
    That afterward, on the 2d day of August, 1884, said Sycamore Marsh Harvester Manufacturing Company, by its contract in writing then entered into, to which contract the then living signers of said agreement of August 10, 1882, and the executors of said Waterman’s estate were parties, duly assigned and transferred to Charles Helium the interest of said Harvester Company in upward of $200,000 in amount of farmers’ notes, then in the hands of one C. W. Mosher, but belonging to said Harvester Company (subject to certain liens thereon in favor of said Mosher, amounting to about $57,000), which transfer of said notes or the proceeds thereof to said Kellum was made for certain purposes in said agreement of August 2,1884, specified among which purposes was the following: “ For the security of the signers of said writing to said Home Hational Bank on their liability on said writing,” meaning said agreement of August 10, 1882. Said farmers’ notes by said contract of August 2, 1884, assigned to said Kellum as security as aforesaid, are still under the control of said Kellum as trustee for himself and associates signing said agreement of August 10, 1882, subject to the claims, if any there be unpaid, of said Mosher against the same as aforesaid.
    Mr. Charles D. F. Smith, for appellant.
    The contract in question is an original undertaking, and not a collateral one. It is not a mere guaranty of the debt of another. A contract of guaranty, in general, is a “ collateral engagement to answer for the debt, default or miscarriage of another,” as distinguished from an original and direct engagement for the parties’ own act. Chitty on Contracts, 10th Am. Ed., 546. If the contract in question is a contract of guaranty, in the sense that it is an engagement to answer for the debt or default of another, it must have been in writing.
    If, on the other hand, it is an original and direct engagement for the party’s own act, it would be binding though not in writing. Hence, those authorities which tend to determine whether the contract in question is one which must be in writing, or one in which writing may be dispensed with, will aid in determining whether this is a contract of guaranty or an original and direct engagement of the parties entering into it, binding upon such parties in the first instance and at all events. Says Chitty: “ Whether the engagement was original or collateral—that is, whether it was binding on the party in the first instance and at all events, or only in case the other party made default—depends on the contract between the parties. But this is to be collected, not altogether from the particular words of the guaranty or promise of the defendant, but from the circumstances in each case, and the general features of the transaction.” Chitty on Contracts, 10th Am. Ed., p. 557. In Blank v. Dreher et al., 25 Ill., 293, the court say: “ Whether an undertaking is original or collateral merely, is to he determined, not from the particular words used, but from all the circumstances attending the transaction. Both the terms of this contract and the circumstances of the transaction show the nature of the contract.” The use of the word “guaranty” does not necessarily indicate that the undertaking is collateral and not an original undertaking. The word is often used in the sense of “promise” or “agree.”
    Although a contract be apparently a contract to pay the debt of another, yet it may be an original undertaking as distinguished from a collateral undertaking to guarantee or answer for the debt of another, and be binding upon the party entering into it, notwithstanding the contract may not be in writing, because it is an original undertaking and not a collateral one. Says Chitty: “It has been said that although the debt of another formed the subject-matter of the defendant’s undertaking, still if he promised to pay the debt upon some new consideration raised by himself, and the consideration was the creditors’ resignation of a charge or lien on goods, which afforded him a remedy or fund to enforce payment, the case does not fall within the statute. And it may be stated as a general rule, that whenever the leading object and main purpose of a promise is a benefit to the promisor which he did not enjoy before, it is not within the Statute of Frauds, although its effect may be to discharge another from a debt or obligation.” (Chitty on Contracts, 10th Am. Ed., 560, 561.)
    In the case of Leonard v. Vredenburg, 8 Johns. 29, Kent, Ch. J., thus states the law: “ But, if a promise to pay the debt of another be founded on a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not a case within the statute. It is considered in the light of an original promise. The case of Williams -v. Leper proceeds upon this distinction, and the point is too clearly settled to be questioned.” In this case the learned chief justice says: “ There are then three distinct classes of cases on this subject, which require to be discriminated. First, cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor. Second, cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. * •* * Third. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. The first two classes of cases are within the statute of frauds, but the last is not.”
    This case of Leonard v. Yredenburg, 8 Johns. 39, is often referred to by the courts, and is referred to and approved in Smith v. Finch, 2 Scammon, 321, which case holds the law to be that “ when the promise to pay the debt „of another arises out of some new and original consideration of benefit or harm between the newly contracting parties, the consideration is sufficient,” and in such cases the statute' does not apply. See also Nelson v. Boynton, 3 Metc. 96; Clifford v. Luhring, 69 Ill. 401; Bunting v. Darbyshire, 75 Ill. 408; Curtis v. Brown, 5 Cush. 491; Borchsenius v. Canutson, 100 Ill. 82; Allen v. Thompson, 10 N. H. 32.
    Messrs. Wilson & Moore, for appellee.
    The contract was a conditional one, based upon a contingent act of the bank to which it was addressed: “ If you will deliver to C. W. Marsh, president * * * the farmers’ notes now held by your bank, * * * you shall be paid,” etc.
    This was a mere proposition, which the bank had a right to decline, and, so far as the makers knew, may have declined. There is not only no evidence of the giving of any notice of acceptance, but it is particularly shown that there was no notice of acceptance.
    Without this notice the contract never became binding.

      In Oakes v. Wells, 13 Vt. 106, it was held that a guarantor is entitled to notice of the acceptance of his guaranty unless it is absolute in its terms. If a man writes, “ If you will do such a service for so and so I will pay you,” it is equivalent to “ Do it for him and notify me in a reasonable time, and I will pay you.”
    Is the delivery of the notes by the bank, in pursuance of this agreement, to be treated as a delivery to the guarantors ? Counsel for the bank so claims, solely on the ground that the makers of the guaranty were stockholders of the company, and that a delivery to the company amounts to a delivery to them. This assumes that a few of the stockholders are the same as the company—an assumption which is founded upon a misapplication of certain language of Morawetz in his book on corporations; the language being, even as used by Morawctz, a mere theoretical joroposition of his own, which is not sustained by authorities, and is not recognized as law, to wit: that the incorporators and the incorporation are one and the same, and that the property of the corporation belongs to the corporators. All the other text books take precisely the opposite view of a corporation, and distinguish it in express language from the persons who compose it; and all the decisions, so far as we have been able to ascertain, where the question arises, make a radical distinction. The Supreme Court of Michigan, in the case of Hansen v. Donkersley, 37 Mich. 134, decided that the individual liability of the stockholders in the corporation was, under the statutes of Michigan, a secondary liability, in the nature of a guaranty, and was released by an extension of time given to the company in taking its note for the debt. See also Witters v. Sowles, 82 Fed. Rep. 767.
    It has been held, and is now the accepted doctrine, that shares of stock are personal property, although all the property of the company is real estate. The share of stock is simply a right to such a proportion of the net assets of the company in distribution, and is not in any sense an interest in the assets. If it were so, all the stockholders must necessarily be parties defendant to a foreclosure suit against the company, or, in ejectment, must be co-defendants. The stockholders are indeed in a way interested in the prosperity and success of the company; probably but for that they could not have been induced to sign the guaranty; but their interest is not so direct that the benefit the corporation got in delivering up securities, can with any reason be said to accrue to them. This company was heavily in debt; all its assets, including these securities, were required to pay its debts, and none of them were expected to, or did in fact, benefit the stockholders in the least. They were not indebted for their stock; the return of the securities could not even tend to relieve them of their liability. But further no benefit would have been derived, in any event, without showing that this security was collected by means of the delivery to the company, and would not have been, if retained by the bank; otherwise no benefit accrued to anybody. Decisions are very numerous, holding, that notwithstanding an incidental benefit may accrue to the promisor, it is not sufficient to make him liable, even on a direct promise to pay the debt of another, unless it was so definite and appreciable as to raise an implied assumpsit, and, without the promise, he would have been bound to pay. See Smith’s Leading Cases (8th Ed.), p. 559.
    However this may be, it is clear that a part of the stockholders do not comprise the company, and can not be treated as identical with it, even on authority of Morawetz.
    It is not necessary for us to cite authorities to the effect that an extension of time to the principal discharges the surety. Upon this subject we will refer only to the case of Dodgson v. Henderson, 113 Ill. 360. In that case it was held that the promise of a maker of a note which had matured to keep the money for another year, and pay the same interest as before, is a sufficient consideration for an extension of time by the holder of the note, and that where such an agreement was made without the consent of the surety he is ■discharged.
    This is clearly a contract of guaranty only, the debt being still that of the company, and the promise being that the company should pay it, or such extensions as should be made before March 1, 1883. It was extended repeatedly after that time, always with the president of the company, and never, as the evidence shows, either with the knowledge or consent of either of the other sureties. If it could he inferred, however, that Waterman, who nominally held an office in the company, which was not then in business and connected with which he had no duties, ought to he charged with notice, yet certainly that would end at the time of his death on July 19, 1883; but both these notes, now merged in judgment, were extended at least three times after that date, and the evidence shows that this was entirely without the knowledge or consent.of his executors, even assuming that they had power to consent.
   Lacey, P. J.

The main question in this case is, was the agreement executed by J. 8. Waterman, deceased, and others, August 10, 1S82, an original agreement between appellant and the makers thereof, or was it a collateral one holding the relation of a guarantee of the debt of the Sycamore Marsh Harvesting Company to appellant? If the latter, the extension of the time of the payment of the principal debt without the consent of Waterman in his lifetime, or his administrators after his death, would work a release of the said appellee, the executor of Waterman, from liability. The time of payment was extended by the parties thereto by a valid and binding agreement some three different times, without the appellee’s consent and after the death of Waterman.

We have carefully read and considered the able and carefully prepared argument of both the appellant’s and appellee’s counsel, and have also examined some authorities not referred to, and we find the authorities on the question not entirely uniform and not easily reconcilable, but we think the weight of authority, and especially in this State, is in favor of holding that the agreement was collateral and was not an absolute assumption of the original indebtedness of the Sycamore Marsh Harvesting Company as is contended for by appellant’s counsel. We regard the agreement as one of guaranty only, and a mere substitution by the Sycamore Marsh Harvesting Manufacturing Company, of the responsibility of the signers of the agreement for the collateral securities held by the appellant and delivered over to the said company upon the delivery of the agreement to appellant. It will he noticed that the agreement expresses on its face that it is a guaranty, and it has ever been so treated by all the parties since its execution. The principal debt was not surrendered, but renewed from time to time, and finally passed into a judgment in favor of appellant and against the debtor company, and is still in a subsisting judgment.

It is a well recognized rule of law that if there is anything doubtful in the construction of a contract, the conduct of the parties, their manner of treating it, and all the circumstances, may be resorted to for the purpose of ascertaining its true meaning. Burgess v. Rodgers, 124 Ill. 288. It is contended by appellant that, as the agreement speaks of a possibility of renewal, it gave authority to the Sycamore Marsh Harvesting Company and appellant to renew without additional consent of Waterman. Without stopping to inquire what the true interpretation would be if Waterman had been alive when the three last renewals were made, we understand the law to be that any power of that description would be revoked by the death of the party giving it. The death of Waterman worked a revocation of any authority to extend the time oE payment of the original debt that may have existed prior to that time. Risley v. Fellows, 5 Gilm. 531.

In case collateral security is put up by a third party, or a third party becomes security for the payment of principal indebtedness, and the time of payment of such indebtedness is extended by valid agreement by the parties thereto without the consent of the owner of the collaterals or the personal security, such action has the effect in law to release the collaterals or the security, as the case may be. Reed v. Cramb, 22 Ill. App. 34, and some case affirmed by title of Price v. Dime Savings Bank, 124 Ill. 317.

Again, recurring to the question of whether the agreement of August 10, 1882, was in the nature of a.n original agreement, we can say, as we before said, that it is not free from embarrassment. But it appears to be well settled that, in order that the promisor should become principal, there should be some benefit moving between the promisee and promisor, who undertakes to pay the debt of another, and that such consideration should be of some direct advantage to such promisor, in order to make it an original debt and divest it of the character of a mere security, and the original debt must be given up. Borchsenius v. Canutson, 100 Ill. 92; Eddy v. Roberts, 17 Ill. 505; Wilson v. Bevan, 58 Ill. 232; Hardy Bros. v. Warner, 88 Ill. 561; Williams v. Corbitt, 28 Ill. 262; Hughes v. Hughes, 41 Ill. 214; Bunting v. Darbyshire, 75 Ill. 408; Hurto v. McKnight, 29 Ill. App. 238; Ames v. Foster, 106 Mass. 403; Westhumer v. Peacock, 2 Clark, 529. See, for an extreme case, as making the promise assume the character of a new indebtedness, Allen v. Thompson, 10 N. Y. 32.

The collaterals in this case were not delivered to the makers of the agreement nor for their benefit, but to the Sycamore Marsh Harvesting Company, as the receipt shows; hence they received no benefit, directly or indirectly, therefrom, except as stockholders of the corporation, nor was the original debt satisfied or given up. Opposed, however, to the Illinois cases above cited on the question of the extinguishment of the original debt, may be, to some extent, the case of Foley v. Cleveland, 4 Cow. 439.

The appellant raises the question that the appellee is estopped on account of the assignment of old accounts and other assets of the Harvesting Company to Judge Helium for the benefit of the signers of the agreement. This, no doubt, would be a good point, at least to the amount received, but we fail to find from the evidence that anything was ever received or ever will be. The accounts appear to have been uncollectible, at least to any greater extent than they had been previously pledged, and there was nothing left of the other assets.

Taking the case as a whole, we must hold that Waterman, on account of the extensions of the time of payment, and the taking new notes from the Sycamore Marsh Harvesting Company and delivering up the old ones to the original debtor after Waterman’s death and without appellees’ consent, releases the latter, as executor of Waterman’s estate, from the obligation as surety. The judgment of the court below is therefore affirmed.

Judgment affirmed-

O. B. Smith, J.,

dissenting. I do not agree with either the argument or conclusions of the majority of the court in this case, but hold that the judgment of the court is neither supported by the facts nor the law in the case. I shall not enter upon a general discussion of the case, but content myself with a single observation or two. I hold that, under all the facts disclosed by the evidence in the case, the agreement of March 10, 1882, signed by Waterman and others, was, beyond all doubt, an original undertaking to pay the bank if it would ¡iart with the farmers’ notes which it held as collateral security, notwithstanding it is called a guaranty.

The farmers’ notes were to be delivered to the Marsh Harvester Company for its own benefit, and the Marsh Harvester Company was but another name for the signers of the agreement, including Waterman. They were the chief and principal stockholders and owners of the failing and bankrupt Harvesting Company, and they were carrying on the business under the corporate name almost exclusively for their own use and benefit. It was a private affair, composed very largely of the parties to this agreement, who owned nearly all the stock. They borrowed the money from the bank for their own private benefit; they again induced the bank to give up its col-laterals for their own private benefit and to pay other debts. Three of these very men who signed this agreement—the two Marsh’s and Waterman—are the chief officers of this private corporation, controlling and managing it for themselves and their co-contractors and stockholders for their own private benefit, and these facts abundantly appear from the proof in the case. Instead, therefore, of Waterman and the other makers of this contract of August 10, 1882, being mere sureties or guarantors, they were the direct and almost exclusive beneficiaries of the notes procured from the hank, and the mere fact that they were doing business under the cloak of a private corporation instead of a firm where the stockholders and the partners were the identical same persons, can not deprive the transaction of its real character, nor change the fact that the men who made the contract were also the men who received nearly the entire consideration for its execution. It is a matter of no importance that the several packages of farmers’ notes these men secured from the bank by this contract were not worth their face. They were (on the face) worth more than the amount the Harvesting Company owed the bank, and formed an ample consideration for the execution of the contract. Considering, then, the relation of Waterman and the others (who signed the contract) to the private corporation and the bank, it seems to me to be a perversion of the use of language to say that these men were mere guarantors or volunteers, without valuable considerations and without a direct personal interest in the transaction, so as to entitle them to the consideration and protection which the law justly and wisely throws around those who are sureties and guarantors in fact and in truth, without any consideration for their undertaking. I have no controversy with the majority of the court as to what the law is in the many cases cited, holding that a real guarantor or surety in fact will be released by extensions of the principal debt, without their consent, for a valuable consideration, and especially so after the guarantor is dead, but I hold that such authorities have no relation or application to a case where the proof shows that the relation of guarantor or surety does not exist.

Believing, as I do, that the contract of August 10, 1882, set out in the opinion of the court, is an original and independent undertaking, upon a sufficient and valuable consideration moving to the makers thereof, it is then wholly immaterial how many extensions the bank may have made of the original notes. It would not release a principal maker. The judgment of the court below was wrong, and ought to be reversed.


author: Lacey, P. J.

text:
    Kankakee and Seneca Railroad Company et al. v. Owen Horan.

      Waters—Railroad Embankment—Injury to Reversionary Interest—Evidence—Instructions—Remittitui—Costs.
    1. In an action to recover damages to a reversionary interest in real estate, caused by an embankment obstructing a watercourse, evidence to show the depreciation in value of the land from such cause is admissible.
    2. In the case presented, the bill of complaint filed by a defendant against the plaintiff in the United States Court, containing admissions against the complainant’s interest, and a portion of the petition for a change of venue, were properly admitted in evidence.
    3. An owner of land adjacent to a legal watercourse can not complain of an increased flow of water, caused by the digging of ditches and drains by the owners of lands bordering upon the same.
    4. Where one obstructs the outlet of a natural watercourse, undertaking to provide another in its stead, lie is bound to have the same of such dimensions as to anticipate and provide for any legal increase in the flow of water.
    6. Where the court allows the appellee to remit part of the judgment and affirms as to the balance, the costs of the appeal are taxed against the appellee.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Grundy County; the Hon. Charles Blanchard, Judge, presiding.
    Mr. G. S. Eldridge, for appellant.
    The Kankakee & Seneca Railroad Company had the constitutional and lawful right to cross the Parker slough ; and, if necessary, to change the course of the slough, if it did it in a manner prescribed by the statute. R. S., title Railroads, etc., Sec. 20, Par. 5; Angell on Watercourses, 6th Ed., Sec. 4651), 465c, 465d, and cases cited; Bellinger v. N. Y. C. Ry. Co., 23 N. Y. 42; Morrison v. B. & B. Ry. Co., 67 Me. 353; Morris v. Vt. Cen. Ry. Co., 28 Vt. 99; 1 Sutherland on Damages, 191; 3 Sutherland on Damages, 433; Babcock v. Ry. Co., 9 Met. 553; Keithsburg, etc., Ry. Co. v. Henry, 79 Ill. 290; Stevens v. C., B. & Q. Ry. Co., 57 Ill. 675; Menkeiss v. Ry. Co., 72 Mo. 514; C. & E. Ry. Co. v. Loeb, 8 Ill. App. 627; I. C. Ry. Co. v. Bethel, 11 Ill. App. 17, and cases cited; Ellet v. St. Louis, etc., Ry. Co., 76 Mo. 518; Houston Ry. Co. v. Parker, 50 Tex. 530.
    The injuries complained of in the building of the trestle at the Parker slough, and on the plaintiff’s east line, etc., are in no sense permanent injuries, because, conceding there was a diversion of the water onto the plaintiff’s land from the Parker slough, the plaintiff could have easily remedied it. He sues for an injury to his reversionary interest. He has, as yet, sustained none. He was not in possession at the time of the injury complained of, and can only maintain an action when he shall acquire the possession. He had not, at the commencement of this suit, the actual possession or the right thereto. He has no right to assume that upon the reversion of the estate, the state of things complained of will exist, unless they are of such an obviously -permanent character that they are immovable or irremediable and can not be relieved against. This suit is altogether premature, in any view. The suit by Frank Horan is all-sufficient. A suit for damages to a reversionary interest presupposes, of course, that some permanent structure or obstruction has been erected or placed somewhere off his premises, which the plaintiff has no lawful right to remove or interfere with, or that some obstruction has been erected or placed on his premises, or other damaging thing has been done upon his premises of which he can not be relieved. For a mere diversion of water upon the plaintiff’s land, which might be provided against, the plaintiff, if in possession, may dig a ditch on his own land and relieve himself, and what it costs to do it may be recovered' for, or he may sue and recover what it would cost him to relieve himself from the overflow.
    In this case there was no occasion to remove any obstruction, either on or off the plaintiff’s premises. All he was required to do was to provide means for the escape of the water, which might have been done at a comparatively trifling expense, and this is the limit of his recovery for such injuries. C., R. I. & P. R. R. Co. v. Cary, 90 Ill. 514; Field on Damages, pp. 592-602, Secs. 734, 737, 738, 748, and cases cited; I Hilliard on Torts, 608, Sec. 18; 1 Sutherland on Damages, 193; 3 Sutherland on Damages, 433; Miller v. St. L. & C. R. R. Co., 31 Mo. 262; Seely v. Alden, 61 Pa. St. 302; Mumford v. Oxford Ry. Co., 36 Eng. Law and Eq. R. 850; Fisher v. Thirkill, 21 Mich. 1, and cases cited; Pinney v. Berry, 61 Mo. 359, and cases cited; Cumberland, etc., Co. v. Hitchings, 65 Me. 140; Bathishill v. Reed, 37 Eng. Law and Eq. R. 317; Luther v. Winnisinmet, 9 Cush. 171; Brower v. Chandler, 3 Wis. 46; Uline v. N. Y. Cen. & H. R. R. R., 101 N. Y. 98, and cases cited.
    The record shows that the jury, under the instructions of the court, assessed the damages at one-half of the present value of the farm, placing the value at the maximum fixed by the most enthusiastic witness—$30 for 240 acres—$7,200 ! as if the plaintiff were in possession and no outstanding tenancy in Frank Horan. The plaintiff is an old man, seventy years of age and upward, and his son in possession under a tenancy for life. The only measurb of damages could be the damages to the reversionary interest, whatever that might be worth, and not the depreciation in the present value of the land. Sutherland on Damages, Vol. 3, p. 392; Randall v. Cleveland, 6 Conn. 328; Van Dusen v. Young, 29 N. Y. 9; Shadwell v. Hutchinson, 2 B. & Ad. 97; Dutro v. Wilson, 4 Ohio, 101; Larkin v. Goodsal, 2 Peake, 15; 1 Ad. on Torts, 315; Baxter v. Taylor, 4 B. & Ad. 72; Funkman v. Newman, 11 Ad. & E. 40; Harder v. Harder, 26 Barb. 409; Agate v. Lowenstein, 6 Daly, 291.
    Messrs. S. C. Stough and R. M. Wing, for appellee.
    The depreciation in the market value of property arising from the infliction of a permanent injury upon it, is the proper and legitimate measure of damages to the owner. Ill. Cent. R. R. Co. v. Grabill, 50 Ill. 241; The Chicago & Ia. R. R. Co. v. Baker, 73 Ill. 316; C., B. & Q. R. R. Co. v. McGinnis, 79 Ill. 269; C., M. & St. P. R. R. Co. v. Hall, 90 Ill. 42; K. & S. R. R. Co, and C., I., St. L. & C. Ry. Co. v. Horan, 22 Ill. App. 145.
    The market value of property is a present and subsistcnt right in the owner, and this value is capable of proof other than by actual sale of the property. Any other rule of law would be manifest injustice to the owner, and, in this case, a denial of all remedy to the plaintiff until he sold his farm; and then, by virtue of another principle of law, he would be remediless for the want of any interest or ownership in it. Ottawa Gas Light Co. v. Graham, 38 Ill. 73; I. C. R. R. Co. v. Grabill, 50 Ill. 241; C., R. I. & P. Ry. Co. v. Cary, 90 Ill. 514; Troy v. Cheshire R. R. Co., 23 N. H. 102.
   Lacey, P. J.

This case, in its facts, is similar to the case of the same appellants v. Frank Horan, except the latter sued to recover damages for loss of crops, he being a tenant of appellee. In this case the suit was brought by appellee to recover for injury to his reversionary interest to his 240 acres of land. For a full statement of facts and for many of the legal questions to be passed upon in this case, the above case of Frank Horan, 23 Ill. App. 259, is referred to. See, also, same appellants v. Frank Horan, 17 Ill. App. 650; also the case now under consideration, 22 Ill. App. 145.

The objections made by appellants to the admissibility of certain evidence touching the measure of appellee’s damages are, as we think, not well taken. It was proper to show the depreciation in value of the land caused by the overflow thereof through the wrongful act of appellants in the improper construction of the railroad. As to the introduction of certain maps by appellee, it may be said that the jury were the judges, from the evidence, whether they were correct or not. The admission in evidence of a portion of appellants’ petition for change of venue was not error, as has been decided by this court heretofore. The bill of complaint of one of the appellants, filed against appellee in the United States District Court of Uorthern Illinois, contains admissions against the interest of appellants, and was properly admissible.

The demurrer of appellee to the bill is not an admission of the truth of the bill, except for the mere purposes of the demurrer. Appellants complain that the declaration is not sufficient, and that judgment in this case should have been arrested on account of it, but, after an examination of the declaration, we find it in the usual form, and according to approved precedents, and hold it sufficient.

It is complained that the tenancy of Frank Horan of the land in question was of some value, and should have been deducted from the damages to the reversion, but the evidence shows that the tenancy, if it can be called one, was only one at will, and was of no value. The appellee was entitled to immediate possession at anytime he chose to call for the land; it was only damages to the crops that Frank Horan recovered, which he planted from time to time, and which were his by gift from his father.

It is strenuously insisted by counsel for appellants that the court below erred in not allowing him to introduce certain mortgages given by one of the appellants, the Kankakee road, to the other, as being evidence tending to rebut appellee’s testimony to the effect that the Kankakee Company had no money, and could not build the railroad in question.

We think there was no error in rejecting it. The evidence, as we heretofore held, was fully sufficient to raise a prima facie case that the appellant, the Cincinnati Company, which we so call for brevity, was the chief builder—or, at least, one of them—of the road in question, and the Kankakee Company, the other appellant, only a mere agency, its name being used by the Cincinnati Company for some convenient purpose of its own. The introduction of these mortgages would in no wise rebut such prima facie case. On the other hand, the fact that, while appellants had ample proof in their possession to settle the question, they failed to introduce it, but attempted to overthrow the evidence of appellee on that point by such an insignificant circumstance, would make the presumption stronger that the Cincinnati Company was the real builder of the road.

The mortgages were evidently only another link in the chain of devices to use the name of the Kankakee Company to build the road, the object of which the proof does not plainly disclose. But evidently the Cincinnati Company was the main builder of the road, possessed and operated it.

The four instructions given on the part of the appellee are objected to by appellants’ counsel. We have carefully examined the same and find them substantially correct, and not obnoxious to the objections made to them. We have heretofore passed on most of the questions raised by them, and appellants’ objections thereto. Nor do we see any error committed by the court in the several modifications of the appellants’ instructions; nor in refusing the defendants’ refused instructions offered by appellants. We do not deem it necessary to particularly mention any of them except the 13th refused instruction. It was as follows:

“ 13. If the jury find, from the evidence, that the outlet for the water of the Parker slough, constructed on or near the east line of Bertrand D. Parker’s land, afforded as good facilities for the discharge of the water running through said slough as were afforded by said slough before said railroad was constructed and the course of said watercourse interfered with, then neither of said defendants is liable in this action for any damages relating to the plaintiff by waters flowing from said Parker slough over the premises occupied by reason of the trestle and opening at said locality. And if the jury find, from the evidence, that, in consequence of the artificial ditches, cuts and other excavations made by neighboring land owners since the construction of the railroad, the amount of water discharged into the Parker slough, and which flowed therefrom upon the premises of the plaintiff, was increased, and exceeded in amount the waters which • flowed through said slough before the railroad was constructed and said watercourse interfered with, neither of the defendants in this case is liable for any damages done by said excessive flowing of water over said slough over the premises occupied by the plaintiff, providing nothing was done in the construction of the railroad, or in connection therewith, to diminish the flow of water through the Parker slough, or to diminish the capacity of the Parker slough to convey water, or to increase the flow of water from the Parker slough onto the plaintiff’s land.”

While we do not think that the evidence, fairly considered, would justify the instruction, we do not think the proposition good as a legal question.

It, in substance, tells the jury that the appellants, when fixing the culvert for the passage of the water of the Parker slough, a natural watercourse, were only bound to construct it so that it would become no obstruction to the water then flowing into it, but as to any increase of water caused by the drainage into it by people along the course of the slough, the appellants would not be liable, though the culvert were not sufficient to admit of the passage of such waters. We do not subscribe to this doctrine. The Parker slough was a watercourse, and it was the legal right of any one along its line for miles above the railroad, where the waters naturally shed toward the slough, to drain into it, and no one below, owning land along the slough, would have any legal remedy against such person so draining water into the slough above them for any damage done to his inheritance by means of an increased flow of water caused thereby. In other words, the slough was a legal watercourse for the drainage of all the land, the natural tendency of which was to cast its surplus water caused by the falling of rain and snow into it, and this whether the flow was increased by artificial means or not. It would seem legitimately to follow that the railroad company would be bound, in providing a passage way for the slough, to anticipate and provide for any such legal increase of the water flow. If it did not, it was doing a wrong and a legal injury to any one situated like the appellee, who was damaged in consequence of a failure on its part to do its duty. There was no proof of any water being illegally cast into the slough, or by any one who had not a right to drain into it. It may be that the provision nullifies the point of the instruction in regard to the increased flow of water supposed to be caused by draining into it. If it does, then the instruction had no particular meaning, other than' if the railroad did not cause the damages by obstructing the passage of water it would not be liable; and this proposition was contained in nearly all the instructions. If the proviso is understood to apply to the condition of the slough at the time the culvert was built, then our criticism will hold good.

The áppellee recovered a judgment in the court below for the sum of §7,200, from which this appeal is taken. Since the cause came into this court the appellee has entered his motion herein, to be allowed to remit of the said verdict the sum of §3,200, which motion is allowed by this 'court, and we are requested to only affirm the judgment of the court below for the sum of §4,000. Finding no error in the record upon which a reversal can be had, and being satisfied with the judgment after the remittitur, the judgment of the court below is affirmed for the sum of §4,000, and reversed as to the balance.

But in such case the costs of the appeal must be taxed against the appellee, which we so order to be done. Warner v. Snell, 91 Ill. 472.

Judgment affirmed for $4,000.


text:
    William R. Long v. William P. Long.

      Administration—Advancements—Statute—Receipts—Ignorance of Law.

    1. An heir who has receipted for his share of an estate, less an advancement, can not subsequently]recover a further sum from the administrator, upon the plea that the advancement was not evidenced as the law requires.
    2. Upon appeal by the administrator from an order allowing a certain sum as the share of the appellee in an estate, this court declines to in. terfere, the receipts of other heirs being conclusive as to advancements made to them.
    3. Relief on the ground of mistake in law is only granted in rare cases.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Lee County; the Hon. William Brown, Judge, presiding.

      Messrs. W. & W. D. Barge, and W. E. Ives & Son, for appellant.
    The acknowledgment in writing is a necessary part, of the advancement, and the advancement is not made without such acknowledgment. Since, then, the advancement must be made in the lifetime of the intestate, and the acknowledgment in writing is a necessary part of that advancement, the acknowledgment in writing must also be made in the lifetime of the intestate. Long v. Long, 118 Ill. 638; Pigg v. Carroll, 89 Ill. 205; Bigelow v. Poole, 10 Gray, 104; In Re Ashley, 4 Pick. 21; Weatherhead v. Field, 26 Vt. 665 ; Sherwood v. Smith, 23 Conn. 516; Bigelow v. Rice, 22 Pick. 508.
    And, if it be said that the administrator has settled with all the heirs excepting appellee, and taken receipts from them, it is a complete answer to say that they were made and given upon the basis and with the understanding that appellee had received his full share of the estate, and these settlements would not have been made or these receipts given on any other basis or understanding; and since it has been claimed by appellee, and decided by the courts, that he has not received his share of the estate, neither the appellant nor any of the other heirs is bound by that settlement or concluded by those receipts.
    These receipts are not contracts, and may he explained or contradicted by parol evidence, and shown to have been given under a mistake, either in fact or in law. White v. Merrell, 32 Ill. 511; Russel v. Church, 65 Pa. St. 9; Gore v. Kline, 1 Harris, 60.
    Where a mistake has been made in the settlement of an estate, it will be corrected, and the power of a court of probate is sufficient for the correcting of the mistake, and to relieve the administrator from the effects of it. Brandon et al. v. Brown, Ex’r, 106 Ill. 519 ; Seller’s Appeal, 86 Conn. 186.
    Mr. John H. Crabtree, for appellee.
   Lacey, P. J.

This was an appeal from the County Court of Lee county, from an order of that court in allowing to appellee the sum of $5,240 as his distributive share of the estate of William Long, deceased, his grandfather.

It is insisted by appellant, a son of one of the heirs of William Long, deceased, that the appellee received by such order, too great an allowance; that while he was entitled to one-eighth only of said estate, he, by the order, received one-fourth of it. It appears that William Long, deceased, died in July, 1877, leaving surviving him no widow, but eight heirs, to wit: Appellant, William B. Long, John Long, Alexander Long, Elizabeth Coleman, Catherine McBnrney and Margaret Chandler, his children, and William Jennings, John Jennings, Amanda Fisher and William P. Long, his grandchildren. William P. Long, the appellee, was entitled to a child’s share, being the only surviving child of James Long, the deceased son of said William Long, deceased, and the other grandchildren above named were entitled to a child’s share, as the children and heirs of Julia Ann Jennings, deceased, the daughter of the deceased William Long. The said William Long, deceased, died leaving real and personal estate to the amount of $20,960, as fixed by the court in its decision upon appellee’s exceptions' to appellant’s administrator’s report) filed November 1879, and the court made an order requiring the appellant to pay to appellee, as his distributive share of the estate, the sum of $5,240, from which order appellant took an appeal to the Circuit Court. During the pendency of the appeal and before the cause was tried in the Circuit Court, Alexander Long, Elizabeth Coleman, Catherine McBnrney, William Jennings and John Jennings, by their guardian, Amanda Fisher, filed their bill in equity in the Circuit Court of Lee county, against William P. Long and William B. Long, the administrators of William Long, deceased, in which it was alleged that the appellee had received his share of the estate, by way of advancements from William Long, deceased, and was hence entitled to no portion of the estate, and a temporary injunction was granted by the court, restraining appellant from paying any portion of said $5,240, allowed appellee by the County Court. Upon a final hearing the bill was dismissed and the injunction dissolved, and the decree was afterward affirmed by this arid the Supreme Court, upon respective appeals to those courts. See Long v. Long, 19 Ill. App. 383, and same v. same, 118 Ill. 638.

It appears that the appellant made out his report of final settlement above mentioned, on the theory and basis that several of the heirs received their shares of the estate of William Long, deceased, in whole or in part in his lifetime, byway of advancements, as follows: The appellant in full and John Long in full, save $116, and Catherine McBurney in full, save $50 ; Margaret Chandler in full, save $200; Alexander Long, all except $4,000. The Jennings heirs received by way of advancements the sum of $1,120, paid to their mother by William Long in his and her lifetime. All the heirs above named except the appellee acquiesced in the report, took no exception to it, and received the balance of their allowance, and all receipted in full except the appellee, who alone resisted, being charged with the alleged advancement to him, and succeeded in defeating the claimed advancement on the ground that it was not evidenced as required by the statute; that is, the gift or grant claimed as an advancement was not expressed or charged in writing to the estate as an advancement, or acknowledged in writing by the appellee, although there was evidence going to show that he had in fact received his share, as intended by the deceased mid himself, by way of a deed for a valuable tract of land. As to John Long and appellant, the evidence shows that the amounts received by them respectively was so received with an express agreement between them and their father, that the amounts should be taken in full for their expectancy in their father’s estate. This, under the rule laid down in Bishop v. Davenport, 58 Ill. 110 and Galbraith v. McLain, 84 Ill. 379, would bar them from claiming any shares in their father’s estate. Alexander Long, with a full knowledge of all the facts, executed his receipt in full to the administrator for his full share, having received, as a balance, $4,000 from the administrator. The same is true as to Elizabeth Coleman, who receipted for her advancement with a full understanding of the charge, amounting to about $463. The same may be said of the Jennings heirs. It is insisted by counsel for the appellant that the parties who have received and receipted for the above claimed advancements may hereafter come into the County Court and ask for a re-adjustment of the settlement of the estate and claim their full share, notwithstanding that they have settled for and allowed the advancements, with a full knowledge of the facts in the case. It is thought also that they were mistaken in the law in regard to the allowance of advancements, and that they were not aware of the provisions of the statute requiring charges for advancements to be in writing, or acknowledged in writing, to be legal advancements.

In the first place, we may remark that the evidence fails to show that any of the parties who have receipted on the basis of advancements were not fully advised as to the statute, or that they would have claimed their respective shares in full if they had been so advised. Courts of law and equitjq except in extraordinary cases, will not relieve against mistakes of law, and we do not deem this one of that class of cases where the courts should interfere to grant relief on the grounds of a mistake of law. The law as to advancements is regulated by the statute, and can be ascertained by reference to its provisions, and parties to avail themselves of its provisions must insist on it before allowing advancements in settlement of claims against estates. If the deceased made the advancements with the intention of charging them as such, and failed on account of his ignorance of the statute, and his children were alike in ignorance of such statute, but knew his intention, good conscience, though not the law, would require them to allow the claim for advancements, and if they allowed them before they ascertained that they could not be legally charged to them, the law would not be swift to grant them relief on the grounds of such a mistake. And when it is considered that relief on the ground of a mistake in law is only granted in rare cases, it is readily perceived that it ought not to be granted in a case like this, where a court of equity could only feel that such heirs had only done what good conscience required them to do—allowed the charge of advancements. The case of Brandon v. Brown, 106 Ill. 519, can not be regarded as applicable, even if the heirs should undertake to compel the administrator to re-adjust their claims. In that case the administrator’s report was allowed to be charged where strong equity demanded it, and by it a great wrong was prevented. We can not see from the evidence how the administrator can be harmed by the allowance of appellee’s claim.

It has not been shown to us that the amount of it is too large, if the advancements are allowed as suited and repealed by the administrator. Perceiving no error in the record or judgment in the court below, the judgment is affirmed.

Judgment affirmed,.


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    The Town of Wheaton v. Abigail W. Hadley.

      Municipal Corporations—Personal Injuries—Defective Sidetvalh—Damages—.Evidence—Instructions.

    1. In an action against a municipality to recover damages for personal injuries suffered through a defective sidewalk, this court holds that the officers thereof bad constructive notice of the condition of the walk, which had stood a long time and become rotten from exposure.
    2. The amount of damages to be awarded in such cases is within the discretion of the jury, the verdict being subject to be set aside whenever so excessive as to indicate that the jury were actuated by prejudice or other improper motive.
    [Opinion filed May 25, 1889.]
    "Appeal from the Circuit Court of DuPage County; the Hon. C. W. Uptoh", Judge, presiding.
    Mr. Elbert H. Gary, for appellant.
    It may be treated as the well-settled law that, before a municipal corporation can be held liable for damages resulting from a defective walk, there must be actual notice to the corporation of the defect, or it must have existed a sufficient length of time to have enabled the corporation, by the exercise of reasonable diligence, to make discovery and to remedy the defect. Dillon, Sec. 790; Chicago v. Murphy, 84 Ill. 224; Chicago v. Stearns, 105 Ill. 554; Dewey v. Detroit, 15 Mich. 307; Ward v. Jefferson, 24 Wis. 342; Joliet v. Walker, 7 Ill. App. 267. The sidewalk in question was carefully examined and thoroughly repaired by the street commissioner of appellant about three weeks before the plaintiff was injured. There is no doubt this walk was ten or fifteen years old, or that the sills in places were decayed and the boards loose at times, but it is just as certain ¿that great pains were taken to keep it in repair, that it was thoroughly repaired shortly before the fall, and that there was no notice, actual or constructive, after that time, of any defect. There is not, therefore, involved simply a disputed question of fact that has been settled by a jury, but upon the law, applied to the evidence, clearly shown, the defendant was not liable. As bearing upon this question, see City of Joliet v. Gerber, 21 Ill. App. 622; Chicago v. Murphy, 84 Ill. 224; Chicago v. McCarthy, 75 Ill. 602.
    In country villages, where the amount of taxes that can be raised is greatly limited because of the small value of the property assessable, it is impossible to build stone, brick or other expensive walks that will not get out of repair, and cheaper walks must be depended upon. The travel, comparatively speaking, is light, and a very less degree of care in keeping in repair is required. This principle is well established. It is impossible to prevent accidents, or occasional defects, or to secure absolute immunity from danger. There is no profit to the corporation in making or repairing sidewalks. Having control over the streets, it is bound to use reasonable care, and no more, iii keeping them in reasonably safe condition, taking into consideration all the circumstances, including its knowledge and means of knowledge. The traveling public must do the same.
    Messrs. A. H. Barry and J. F. Snyder, for appellee.
    It was the duty of the town authorities to keep the sidewalks in question in a safe condition for travel, so far as that could be done in the exercise of reasonable care and prudence in that respect Cooley on Torts, 625; The People v. The Mayor, etc., 63 Ill. 207; Prideaux v. Mineral Point, 43 Wis. 513; Mayor, etc. v. Cooley, 55 Ga. 17; Dillon on Municipal Corporations, Sec. 996, et seq.; Chicago v. Dale, 115 Ill. 386.
    The testimony shows conclusively that the town authorities were guilty of negligence, and that they failed to perform this duty.
    But, admitting, for the sake of the argument, that appellant did not have actual notice of the unsafe and dangerous condition of the walk in question between the date of repairs and the accident, did appellant have constructive notice of the unsafe and dangerous condition of this walk between these dates? Upon the doctrine of constructive notice, we cite the following authorities: Dewey v. The City of Detroit, 15 Mich. 307; Shear. & Red., Neg., 148; Mayer v. Sheffield, 4 Wall. 189; City of Springfield v. Doyle, 76 Ill. 202; Schwickhardt v. St. Louis, 2 Mo. App. 571; Hume v. N. Y., 74 N. Y. 264; Albrittian v. Huntsville, 60 Ala. 486; Chicago v. Dale, 115 Ills. 386.
    The evidence clearly shows that the walk in question was about fifteen years old, that the stringers were thoroughly decayed and the boards were mostly loose. Loose boards had been picked up and set against the fence, and members of the town council notified. People had fallen down on this walk before. The town council had discussed the question of rebuilding it and of repairing it, the spring of the accident. All of this testimony goes to show that the walk had been in a defective and dangerous condition for a long time prior to the accident, and that the walk needed rebuilding before it could be made safe.
    “Where a party is injured from a defective sidewalk, caused by the stringers upon which the boards rested being decayed so as not to hold nails, so that a loose board tipped when stepped upon by a companion walking with the person injured, and the proof showed that the stringers had been in this condition a long time before the accident, though it failed to show affirmatively the city knew of the particular board being loose at the time, it was held that the city was chargeable with notice of the unsafe condition of the walk, and was guilty of negligence in not having it repaired.” City of Aurora v. Hillman, 90 Ill. 61.
   Lacey, P. J.

This was an action on the case to recover damages for injuries resulting from falling on a sidewalk of appellant, a municipal corp>oration, on Cross street, in said town, between Seminary and Wesley streets, because of the defective condition of the sidewalk. In not keeping it in safe condition, the appellant is charged with negligence. The accident took place on the 26th day of April, A. D. 1886. The ad damnum in the declaration was in the sum of $5,000, and the recovery $1,000.

On the day of the injury the appellee, in company with Miss Vauglm, was walking along Cross street, going south, Miss Vaughn being on the inside of the walk and the appellee being on the outside. When about sixty feet south of the Adams barn, Miss Vauglm stepped on a loose plank, which flew up and caught the appellee’s feet and threw her violently on her face and hands, dislocating the ulna of the left arm at the joint where it joins the wrist, and inflicting a severe shock to her nervous system, which, it is claimed the proofs show, produced epilepsy and atrophic ulcers, as is claimed by appellee, but denied by the appellant. The appellant claims that the sidewalk was in good repair at the time of the accident, and, if out of repair, it had not been so out of repair a sufficient length of time to charge the town with constructive notice of its defective condition—hence there should be no recovery. Further, appellant claims that the damages are excessive, and that the court gave erroneous instructions on the part of appellee and'refused proper ones asked by it.

We will first notice the claim that the sidewalk was in good repair.

The sidewalk, it appears, was very old, not having been • replaced for fifteen years, and was badly decayed and in a very-dilapidated condition, which the authorities well understood or should have known. The stringers were so decayed that they would scarcely hold a nail, and had sunk into the ground so that the sidewalk rested on the ground. The boards of the sidewalk were also decayed, and many of them loose.

It is true the evidence shows that a short time before the accident the authorities made an attempt to repair it by nailing down some of the boards, not, however, putting in any new stringers, but it is evident from the testimony that it could not, without new material and almost an entire replacement of the sidewalk, be repaired so as to place it in a good, safe condition. It seems to us that the evidence was ample from which the jury might find both that the sidewalk was badly out of repair at the time of the accident, and that the town had notice of it. They were further justified in finding that appellee was in the exercise of care and caution to prevent injury at the time she received the fall.

Where a sidewalk has stood as long as this one and become rotten from exposure to the weather and time, the authorities ought to be held to have constructive notice of its condition, for with reasonable care such condition could be easily ascertained.

As to the point that the damages are excessive, we can only say that such matters are wholly within the discretion of the jury, only subject to be reviewed and the verdict set aside when they are so excessive as to convince the court that the jury were actuated by prejudice or other improper motive, or that there is a manifest want of evidence to support the verdict. In this case it appears that the injury was serious even without the alleged resulting consequences of epilepsy and atrophic ulcers. As to this last and subsequent condition, we think the jury might reasonably find that it was traceable to the injury resulting from the fall. The jury were the judges of the evidence in this particular. The jury, as we think, were justified in the verdict as respects the damages. We think the appellee’s instructions were not erroneous, or either of them; nor did the court err in refusing the respective instructions offered by appellant. The jury were very fairly and fully instructed, and no reasonable objection can be made to the action of the court in this particular.

There seems to have been a fair trial. The judgment is affirmed.

Judgment affirmed.

Judge Upton, having tried the case in the court below, took no part in the hearing here.


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    The Plano Manufacturing Company v. A. M. Parmenter.

      Negotiable Instruments—Note—Guaranty—Cause of Action—Sales— E lection— Warranty—Instructions.

    1. Documentary evidence consisting of several distinct papers, referring to one and the same transaction, should be admitted together in evidence in a controversy based thereon.
    2. The plaintiff can not he required to elect between a contract and a promissory note where both are parts of the same transaction and the action is based on both.
    3. The guarantor of a promissory note given for a harvesting machine can not defend on the ground of a breach of warranty in the contract of sale requiring the return of the machine upon certain conditions if there has been no return or offer thereof.
    4. Instructions raising issues not involved in the case and not supported by the evidence, should not be given.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. Arthur Keithley, for appellant.
    Mr. John M. Tennery, for appellee.
   Upton, J.

This cause was tried in the Circuit Court of Peoria county on appeal from a justice of the peace, wherein appellant was plaintiff. Appellant is a corporation engaged in the manufacture of harvesting machinery, with its principal office at Chicago.

In the winter of 1886 it entered into a written contract with appellee, who resides at Knoxville, Illinois, for the sale of its machines at that point and vicinity.

The parts of the said contract deemed necessary to be considered here are the appointment of appellee as the agent of appellant for the purpose above indicated, which agency was to continue until September 1, 1886; the price specified at which its harvesting machines were to be sold was fixed at §180; the machines sold were warranted by the appellant to the purchasers thereof, through its agents, to the effect that such machine was well made, of good materials, and, with proper care and management, was capable of doing first-class work; that purchasers should have one day to give the machine a fair trial, and if it would not work well, written notice thereof, stating wherein it failed, was to be given the agent of whom it was purchased and the appellant at Chicago, and a reasonable time allowed to remedy the defects, if any, (the purchaser rendering necessary aid and friendly assistance) and if the machine could not be made to do good work it should be returned to the agent at the place where it was received by the purchaser, and a new machine given in its place, or the notes and money would be refunded, which terms of warranty were not to be changed or varied by the appellee.

The fourth ciause of the contract provided that if any of the machines should be sold by appellee on credit, settlement therefor might be made at the net price, in notes of good and reputable parties or persons, the payment of which notes was to be guaranteed by the appellee, and that a failure of appellee to indorse such guaranty of payment upon such sale notes should not affect his liability on “ this contract of guaranty of payment thereof" and that machines or goods of appellant sold under the contract on credit by the appellee, or upon any other terms, should render appellee liable therefor in cash upon demand.

In consideration whereof appellant was to allow appellee a commission of twenty-five per cent off, on the list price of $180, for each machine, upon all sales thereof, for cash or on credit, to parties who were trustworthy and financially responsible, and upon appellee’s contract of guaranty, as above set forth.

In June or July, 1886, appellee having received from appellant, harvesting machines, for sale under said contract, sold one of said machines to Bussell and McGill for $150, to be paid for on the first of the ensuing August, and subject to the warranty above set forth. This machine was put in use by the purchasers. Some complaint was made as to the working of it; that it was of heavy draft; that the steel frame was out of plumb, which caused the main pinion, running inside the master wheel, to cut out rapidly. Appellant, by its agents, made efforts to remedy the defects complained of.

Bussell and McGill still remained dissatisfied, as they claimed, with the machine, but continued to make use of it for the entire harvest of 1886, and did their own harvesting with it, doing all the work they had to do with a harvesting machine for that season, but did not deliver or offer to deliver the machine to the agent of whom it was purchased, or to the appellant, but refused to pay for it as they had agreed.

In the fall of 1886 appellee’s agency terminated under the contract, and it became important to both appellee and appellant that, in the settlement between them, this machine sold to Bussell and McGill, and still remaining in their possession, should be adjusted and settled for, to accomplish which it was agreed that Bussell and McGill should meet the general agent of appellant, one Charles G. Van Bess, at the store or place of business of appellee, and adjust the matters in dispute in reference thereto, if possible.

The parties accordingly met, as agreed, and effected a settlement between them, which was, in brief, that Bussell and McGill should keep the machine so purchased of appellee, and execute their promissory note for the sum of $150 of date of December 1, 1886, payable to appellant, or order, on or before September 1, 1887, with interest at eight per cent per annum; and thereupon appellant, by its agent, Charles G. Yan Ness, and with the full knowledge, if not the express consent of appellee, executed and delivered to Eussell arid McGill a contract of warranty of said machine of the following tenor and effect: In consideration of a settlement made in full this day and date for one Steel Crown Plano Harvester and Binder, purchased of A. M. Parmenter, by Charles Eussell and F. W. McGill, said harvester and binder not having given satisfaction to the purchasers, who claim that said harvester and binder is defective, and therefore it is agreed hereby by the Plano Manufacturing Company that they will send a competent expert to adjust and repair said harvester and binder, and put the same in first-class working order for the harvest of 1887. If said machine can not be made to do as good work as any machine of its class, and the defects, if any, can not be remedied by the expert of said Plano Manufacturing Company, the said machine shall be returned, and a new one furnished by the said Plano Manufacturing Company in its place, free of any extra charge to said purchasers.

“If the above conditions and agreements are not fulfilled, then the note given by the above named purchasers in settlement shall be null and void, or the money, if any paid, shall be refunded to the purchasers, Charles Eussell and F. W. McGill.”

Upon this settlement being made, appellee was allowed his commission on the sale of said machine, of twenty-five per cent, as agreed, and appellee guaranteed the payment of the note so given for said machine by indorsement in writing on the back thereof, and the note was taken at its face value by appellant, and allowed to appellee upon settlement of his accounts with appellant as such agent.

Prior to the harvest of 1887 the appellant sent one or more experts to repair and adjust the machine; Eussell and McGill made some complaints concerning the working of it, by correspondence and otherwise, which resulted in appellant sending experts to adjust the same, if needful or required. Eussell and McGill used the machine during the harvest of 1887, cut and harvested their own grain, as well as that of others, all that the parties had to cut that season, and that machine still remains in the possession of Bussell and McGill, without return or offer of the return thereof to appellant or its agents. The note of $150 given for said machine, as above stated, and guaranteed by the appellee, not being paid at maturity, this suit was commenced against appellee, as the guarantor of payment thereof. Appellant was defeated on the hearing in the Circuit Court, before a jury, and the cause is before this court on appeal, and errors are assigned upon the record.

What the defense to this suit was in the court below, in fact, does not clearly appear from this record. Bo complaint is made that appellant did not procure experts to repair and adjust the harvester and binder, as agreed; but the complaint is that the machine was not and could not be adjusted or repaired so as to be in first-class working order, or to do as good work as other machines of its class. If that be conceded, of which there is no proof in this record, it then became the duty of the purchasers, under the contract, to return the machine to appellant, within a reasonable time, and demand of appellant the fulfillment of the contract, viz., the delivery (free of extra charge) of a new machine, or in case of refusal, the cancellation of the note.

There is no claim or pretense, as we have shown in this case, of a return or delivery of the old machine to appellant, or its agents, at any time, before or after the bringing of this suit.

Under these circumstances we are unable to perceive any principle of law which should invalidate the note of Russell and McGill given for the price of the machine, or which would preclude the legal enforcement thereof, shown by the record before us. Morgan v. Stulford, 3 Ill. App. 323; Osborne v. Flood, 11 Ill. App. 408; Osborne v. Drozer, 13 Ill. App. 380, and cases therein cited.

The Bussell and McGill note for $150 being, as we have shown, a valid and subsisting claim, past due at the commencement of this suit, and offered in evidence by appellant in the Circuit Court, the payment of which was guaranteed by appellee, both by the original contract creating his agency, and by his indorsement of guaranty on the back of the said note, all of which were proper evidence on the part of appellant, and should have been admitted on the trial in the Circuit Court, entitled appellant to judgment for the principal of said note, with the interest thereon accruing according to the tenor and effect thereof, unless overcome by other and further evidence in the case, the burden of which was cast upon ap¡ ellee by putting in evidence the contract, note and guaranty, which appellant sought to do, but was denied the right by the ruling of the Circuit Court, holding that appellant should elect whether he would predicate his cause of action upon the note and guaranty thereon, or the original contract creating appellee’s agency, and contract of guaranty therein, when in law and fact, as we have shown, both were but parts of the one transaction, and should have been admitted in evidence on the trial.

It is' said that the guaranty appearing on the note was denied by appellee, but, as we think, was completely overcome, if not by the evidence of appellee himself, at least by the testimony of Van Hess, and the other evidence and circumstances in evidence in the case; but if we concede the claim to its fullest extent, still there remains the appellee’s original contract of guaranty to appellant of all notes taken for the sale of machines on time, which, as between appellant and himself, was valid and obligatory, even though appellee had not in fact put his name on the back of this note. The execution of this conti act is undisputed. The original contract of agency with appellee was in no legal sense trenched upon, altered or impaired by the subsequent contract of Van Hess with Bussell and McGill, before referred to, of the execution of which appellee had full knowledge at the time, and to which no objection was made by him at the time of its execution and delivery.

Under such circumstances we think the Circuit Court was in error in compelling appellant to elect in procedure in the trial. It had the right to introduce the original contract with appellee, and the note and guaranty thereon, as parts of the same transaction, for at least the original contract to guarantee notes for deferred payments on the machines sold on time, and upon which commissions had been paid appellee, was proper evidence to show a consideration for the actual guaranty of payment by appellee upon the note, and clearly admissible for that purpose, and the guaranty of appellee, as well as the note upon which it was written, was competent evidence in this case, and should have been admitted in evidence in connection with the other testimony on the hearing in the Circuit Court.

The Circuit Court, we think, also erred in giving to the jury the first, second, third and fifth instructions for appellee. They were each erroneous and misleading, raising issues not involved in the case, and there was no evidence in the case upon which to base some of them.

Besides, we think, in view of all the evidence contained in this record, that the harvesting machines filled the warranty in letter and in spirit, and, in fact, that there was no legal defense to this suit. For these reasons the judgment of the Circuit Court is reversed and the cause is remanded for further proceeding not inconsistent with the views herein above expressed.

Reversed and remanded.