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    The Consolidated Coal Company of St. Louis v. Andrew Young, Administrator.

      Master and' Servant—Personal Injury—Negligence of Mine Otoner— Failure to Prop—Vice Principal—Contributory Negligence—Assumption of Bisk—Evidence.

    In an action to recover for the death of an employe of a coal company through its alleged negligence in failing to prop the roof of its mine, this court holds that the evidence does not show that deceased was directed by any authorized agent of the company to work in the place where the accident happened, and that it was his duty to call for props when he considered the same necessary to his safety.
    [Opinion filed June 15, 1890.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding,
    Mr. Charles W. Thomas, for appellant.
    Messrs. E. L. Thomas and Dill & Schaefer, for appellee.
   Reeves, J.

Caspar Larcher was employed as a miner in the mine of appellant. In this mine mining machines were used ; also persons whose labor consisted of drilling holes and blasting, or shooting the coal down after it ivas mined by the machines, and still others to load the coal so mined and blasted into boxes to be transported to the shaft bottom. There were persons employed, some whose labor was devoted to the transportation of the coal, after it was loaded in the boxes, to the shaft bottom, and others who were engaged in building roadways, and settingup props to prevent clod, rock and other overhanging material from falling. Over all these employes there was a pit boss, who had such power over the other employes as made him, as to the others, the representative of the common master, appellant. Larcher was engaged in loading the coal into boxes, after it was mined and blasted. While engaged in this work he was killed by the falling of a clod, and this action was brought by his administrator to recover damages for his death.

It is alleged that the clod that fell and crushed Larcher was not propped up by props, and that the pit boss, knowing that the clod was not propped, and knowing it was dangerous, nevertheless directed Larcher to continue his labor under the clod, and represented to Larcher that there was no danger in so working, that the clod would not fall, etc.

It must be conceded from the evidence found in this record that the pit boss did not personally direct Larcher to work at the place where he was when billed, and did not direct him to continue such work after it was begun. It is, however, contended that such direction was given by the “ shooter,” the man whose duty it was to shoot down the coal after it had been mined by the machines, and that the “ shooter ” stood ■in the place of the pit boss in his absence. We fail to find any sufficient support for this position in the evidence. Schilling, who was working with Larcher, says they were sent into the place where Larcher was afterward killed by the “ shooter,” but it is not shown anywhere in the evidence that' the “shooter” had the direction or control of the men in any particular, in the absence of the pit boss.

It appears that Schilling and Larcher left the room where they were at work in the morning, and went into the room where Larcher was killed, because they wanted to load out of a full place. . Schilling says he and Larcher knew there was a clod there, but they did not believe it was dangerous. They sounded it and it did not sound loose. The timber man also sounded it. The timber man said, It is a. wonder that clod stays up that way.” After the timber man left, Larcher sounded the roof and found it all right. Larcher was a coal miner by trade, of many years’ experience. He was a careful man, and he sounded the roof often, says Schilling. He also says the pit boss came yffiere they were at work, and sounded the roof, but said nothing. The pit boss testified that he was in the room where Larcher was afterward killed, in the morning of the same day. Larcher and Schilling were not there then. In the afternoon, in making the rounds, he found them there at work. He says': “I don’t know how they came to leave the place where they were working in the morning. I asked Larcher, and he said there was somebody else loading there, and he thought they ought to have the right to load out of a full place too. I neither told him to stay or not to stay. I left him his choice. When I went in there I sounded the roof, as was my custom wherever I went. I found it solid. I did not know then there was clod there, but I suspected it, and that is the reason I tried it. Larcher said to me that it was all right.” Schilling testified : “ In order to find out about clod, you generally sound it with a pick, and you can tell whether it is loose or not. When it is about to fall it sounds loose, and if not, it sounds solid. You can not tell the difference between clod and rock. Larcher and I both knew there was clod there. The timberman was in twice,, but we did not ask him to put up props.” The pit boss testified: “ It was the duty of the men, when they wanted props, to let the timberman know.”

This is the substance of the testimony upon the material points. As already stated, it fails to show any direction by the pit boss to Larcher- to work where he was killed. Even if we concede that he was directed to go there by the shooter,” in order to bind the master it must be shown that the “shooter” had the authority from the master to direct and control Larcher. Ho attempt was made to show any such authority in the “shooter.”

Larcher was an experienced miner and a^e to detect the necessity of props if any were needed, and in such case it was his duty to call upon the timberman for props. He made no such demand. Evidently Larcher thought the place safe. The usual tests failed to show that the clod was loose or loosening. Under the facts shown, we do not see how a recovery in this case can possibly be maintained. The judgment of the Circuit Court is reversed.

Judgment reversed,.


source: Caselaw Access Project

author: Reeves, J.

license: Public Domain

text:
    Edward McGuire v. William Goodman.

      Malicious Prosecution—ProbaVe Cause—Trespass—Cutting Trees— Evidence—Dochet Entries—Judge’s Minutes—Instructions.

    1. In an action for malicious prosecution brought by a person previously arrested upon an information charging trespass in cutting timb r, the charge having been dismissed before trial, this court holds that the evidence does not sustain the claim that there was not probable cause for the prosecution in question.
    2. When an action of this character is based upon proceedings in a justice court, the docket entries of the justice may, upon the refusal of the defendant- so to stipulate, be admitted to show the termination of the criminal proceedings therein.
    3. The minutes of the county judge upon his docket can not be substituted for the record of the court. It alone is competent to prove that which is required to be proven by the record.
    •4. A mistake or error not amounting to gross negligence will not affect the question of probable cause, when there is an honest belief on the part of the party swearing out a warrant for the arrest of another that such person is probably guilty.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Jackson County; the Hon. O. A. Harker, Judge, presiding.
    Mr. R. J. MoElvain, for appellant.
    Messrs. Hill & Martin, for appellee.
   Reeves, J.

Appellant made a complaint upon which appellee was arrested for trespass, for cutting timber, and brought before a justice of the peace for preliminary examination upon the charge. Subsequently the proceeding before the justice was discontinued, and an information against appellee and others making the same charge, was filed in the County Court, sworn to by appellant, appellee arrested and held to bail. Before trial upon the information, the state’s attorney ordered a nolle as to appellee. This suit was brought for malicious prosecution in the matter of the charge against appellee for cutting timber. In the tria: of the case in the Circuit Court, the plaintiff offered in evidence the docket-entries of the justice of the peace before whom plaintiff was brought, and also the minutes of the county judge upon his docket, which were admitted over the objection of the defendant.

There was manifest error in admitting the minutes of the county judge for any purpose. These minutes can not be substituted for the record of the court. The record alone is competent to prove that which is required to be proven by the record.

The docket entries of the justice of the peace might have been admitted for a specific purpose, namely, to show the termination of the criminal proceeding; but when this is done the jury should be told by the court that such evidence is only admitted to show that fact, and is not to be considered by the jury at all in determining the question of want of probable cause. The bill of exceptions fails to show any such qualification' by the court in the admission of this evidence. If we should follow literally the decision of the Supreme Court in Skidmore v. Bricker, 77 Ill. 164, these docket entries should not have been admitted at all; but we incline to adopt the ruling of the Appellate Court of the second district in the case of Comisky v. Breen, 7 Ill. App. 369, to this extent, that the record may be admitted where the defendant will not stipulate that the criminal proceeding has terminated, for the purpose of showing such termination, provided the court specifically and fully informs the jury that such evidence shall not be considered by the jury in determining the question of want of probable cause. When the defendant in a suit for malicious prosecution will stipulate that the criminal or other proceeding out of which the suit for malicious prosecution grows, had terminated before the suit for malicious prosecution was commenced, then the record should not be admitted, for the reason that if the evidence goes to the jury that the defendant in the criminal proceeding was acquitted or discharged, it would be very difficult for the jury-to leave that fact out of mind, when determining the question of probable cause. However, if the defendant will not stipulate that the criminal proceeding had terminated, it is difficult to see how, under the established rules of evidence, such termination could be pi'oved except by the record.

Under the evidence in the record, we hold the motion for a new trial should have been allowed. To us it appears that there was not satisfactory evidence that there was not probable cause for the charge against plaintiff. It is not denied that he cut a tree in Brokaw’s land without the consent of Brokaw or his agent, and without any color of title.

The plaintiff’s seventh instruction should not have been given. We find no sufficient warrant in the-evidence for the statement in this instruction, “that if defendant sought by the use of criminal process, a recovery of private property or for gain,” etc.

We can not approve all the language of the sixth instruction. This instruction reads as follows: “Although the defendant may have honestly believed at the time the prosecution against plaintiff was commenced, that there was reasonable and probable cause for such prosecution, yet, if this belief on his part, however confident and strong, was induced by his own error, mistake or negligence, without any occasion for suspicion given by the plaintiff, such belief of defendant will not amount to probable cause. While it is the law that an honest belief, in the party swearing out a warrant for the arrest of another upon a criminal charge, that such person is probably guilty, will not constitute probable cause, if he could not have entertained such belief but for gross negligence on his part, acting as an ordinarily prudent person would under like circumstances, still a mistake or error not amounting* to such gross negligence, would not affect the question of probable cause where there was such honest belief.

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

Reversed and, remanded.


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    George W. Turner v. N. H. Norton et al.

      Injunctions—Remedy at Law—Capias—Sec. 22, Chap. 79, Starr & C. Ill. Stat.-—Evidence.

    This court holds that an injunction obtained by .a judgment debtor arrested on a capias, restraining the issuance of further process, commanding the return of the capias and enjoining the further retention of such debtor in custody, was properly dissolved, there being a complete and adequate remedy at law.' • -
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Lawrence County; the Hon. William C. Jones, Judge,- presiding.
    Mr. H. H. Howard, for appellant.
    Messrs. E. B. Green and T. B. Huffman, for appellees.
    Turner had a complete remedy at law by appeal or writ of certiora/ri; he shows no reason why he did not pursue that, remedy. It is admitted in the bill rumors reached him of the judgment against him, but he says no official notice had been served on him until after the expiration of twenty days after the judgment was rendered. If he knew of the existence of the judgment he must appeal and not resort to injunction. High on Injunctions, 2d Ed., Secs. 1B5, 173.
    To entitle complainant to maintain his bill it should appear from the bill itself that the .judgment against which relief is sought did not result from negligence, inattention or carelessness of complainant, and he must show a clear case of diligence to entitle himself to injunction. High on Injunctions, 2d Ed., Sec. 113.
    We submit that this record can not be contradicted by parol evidence. “ The entry upon the justice’s docket was a judgment in bar, and the policy of the law forbids that parol proof should be admitted to show that the justice originally rendered judgment for non-suit and afterward changed it to a judgment in bar. The record or entry of the justice is higher and more trustworthy than any parol evidence can he.” Garfield v. Douglass, 22 Ill. 100.
   Reeves, J.

On the 10th day of August, 1887, appellant was arrested by appellee Myers, a constable, on a ca. sa. issued Ixv appellee Morton, a justice of the peace, under the provision of Sec. 22, Chap. 79 of Starr & C. Ill. Stats., on the affidavit, and at the suit of Henry Winklee. Such proceedings were had on the return day of the writ, that the writ was quashed on account of the insufficiency of the affidavit; at this point there is a conflict in the testimony as to what occurred. The transcript of the justice recites as follows:

“ August 15, 1887, parties appeared. * * * Writ of capias quashed on motion of defendant. Affidavit amended for new writ by leave of court. Case dismissed as to capias and proceed to trial on summons only. Defendant left the court when discharged from writ. Plaintiff’s witnesses sworn to try the case. Judgment rendered against defendant by default,” etc.

The appellant claims that when the capias was quashed the attorney for appellant stated to the justice that when the capias was quashed the plaintiff had the right to go on, treating the service of the capias as the service of a-summons; that the justice said to plaintiff’s attorneys that they could amend and go on, but they refused to amend or did not, and thereupon the justice announced that the case was dismissed and the prisoner was discharged ; appellant and his.attorney remained in court for ten or fifteen minutes, when appellant’s attorney said to the justice : “ Do I understand the court to say that the suit is dismissed and it is no use for ns to stay longer?” The justice replied, “ That is my understanding, unless the gentlemen desire to amend.” Thereupon the witnesses for the defendant claimed their attendance and he and his counsel left the office of the justice.

This version of what occurred before the justice is materially controverted by the justice and other witnesses. These witnesses insist that it was only a dismissal as to the capias that was spoken of, and that there was no statement of the justice that the suit was dismissed. The judgment was rendered August 15tli. An execution was sworn out the same day and the next day it was served on appellant. He then, and for nineteen days after, had the opportunity to take an appeal from the judgment. This execution was returned, no property found. On the 6th day of September a capias ad satisfaciendum, was issued upon the judgment, and on the 8th day of September appellant was arrested on this capias; whereupon he filed the bill in this case and procured an injunction restraining the justice from issuing any further process upon said judgment, and commanding the return of the capias in the hands of the constable, and enjoining constable flyers from longer retaining appellant in custody and directing him to return the capias to the justice.

Opon the hearing the bill was dismissed and the injunction dissolved. Taking the appellant’s account of what occurred before the justice as correct, which can by no means be admitted under all the testimony in the case, has he a standing in a court of equity ? We think not. He had abundant opportunity after he knew the judgment had been rendered against him, to take an appeal, and in this had an adequate and complete remedy at law.

Furthermore, if the capias ad satisfaciendum was illegally issued, he had a complete remedy at law for release from arrest under the writ by habeas corpus. In any view of the case the remedy of appellant at law was adequate and complete. The bill was properly dismissed for want of equity.

The decree of the Circuit Court is affirmed.

Decree affirmed.


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    The People, for use of Tirza A. Johnston v. James J. Borders et al.

      Guardian and Ward—Principal and Surety—Receipt in Full—Agency —Estoppel—Evidence—Secs. 2 and 4, Chai). 57, R. S.—Instructions.

    1. In an action to recover from the sureties on a guardian’s bond the amount shown to be due upon the settlement of his account, this court holds that the contention that the ward, without receiving the same, executed a receipt in full therefor for the purpose of discharging said guardian and the sureties upon his bond, and made an agreement with the former to act as her agent and to handle for her benefit, and not to pay over the balance so found to be due, is unsupported by the evidence.
    2. The fact that the ward signed such receipt did not estop her after the lapse of six or seven years from asserting her claim against said sureties, as it does not appear that the receipt caused any change of conduct on their part.
    3. An instruction attempting to recite the facts of a case should embrace all the facts.
    4. An instruction stating that a ward must demand payment from her guardian in his lifetime, and upon his death give notice to the sureties on his bond of non-payment as conditions precedent to recovery, is erroneous.
    5. Secs. 2 and 4, Chap. 57, R. S., do not prohibit a ward from answering in proceedings of this character, inquiries as to whether a deceased guardian ever paid any of the moneys due from him, and whether he was ever constituted agent to handle same.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Randolph County; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for appellants.
    Guthrie procured his ward’s receipt by fraud. He told her he could not make a settlement without it when the receipt had nothing to do with his settlement. She was his niece and confided in him. She had not been of age sixty days, and was, on account of her sex and inexperience, presumptively ignorant of all legal proceedings. She signed the receipt because her uncle told her it was a legal formality necessary to permit him to make a settlement of his accounts, and he perpetrated a gross fraud when he procured it.
    The case of Gillette v. Wiley, 19 N. E. Rep. 287, decided by the Supreme Court of this State at the June term, 1888, is conclusive of this cage. In that case the guardian procured his ward’s receipt by fraud and procured an order of the County Court discharging him from the guardianship. One of his sureties who had taken a mortgage from the guardian to secure himself, on the strength of the discharge released the mortgage, and the guardian sold the mortgaged land and became insolvent. The surety was, nevertheless, held on the bond. In this case the sureties have not been induced to act to their loss, and there was no discharge of the guardian by the court. The principle of estoppel can not here be invoked.
    The ward has not done anything in this case which has caused the sureties to change their condition or to be in any worse position than they would otherwise have been. They are not released unless the guardian is, and the guardian is only released by actually paying the money due.
    The theory of the defendants, as expressed in their fifth instruction given to the jury, that it was the ward’s duty to demand her money and notify the sureties that it was not paid, is new law not found in any of the adjudicated cases and not approved of in the case referred to, nor is it possible to find any law requiring a ward to make a demand or bring a suit on a guardian’s bond within six years, as is, by that instruction, supposed.
    Messrs. Koerner & Horner, for appellees.
    Inasmuch as the plaintiff, as an interested person, could not have testified in an action against the estate of Guthrie, it follows logically and necessarily that she could not be heard in the action against those who were defending in the same • right as the estate.
    The statute intends, in allowing a party to be a witness, that it shall be in cases only where both parties are upon equal grounds. Merrill v. Atkin, 59 Ill. 20; Langley v. Dodsworth, 81 Ill. 86: Brauger v. Lucy, 82 Ill. 91: Stone v. Cook, 79 Ill. 424.
    But independent of the second section of the act on evidence, the plaintiff is disqualified to testify as to anything said or done by Guthrie by the fourth section, which provides that no adverse party shall be a competent witness to testify to any conversation or admission by any deceased party or joint contractor, in a suit against the surviving partner or joint contractor. This applies to penal bonds. Henry v. Tiffany, 5 Ill. App. 548.
   Reeves, J.

At the May term, 1874, of the County Court of St. Clair County, George W. Guthrie was appointed guardian of Tirza A. Johnston and her three sisters, and gave bond as such guardian, with James J. Borders and Thomas M. Pollock as sureties, in the sum of $40,000. The bond was in the statutory form and bound the guardian, among other things> at the expiration of his trust, to pay over and deliver all the estate, title papers and effects remaining in his hands, or due from him to the person or persons entitled thereto.

Tirza A. Johnston reached her majority on the 23d day of September, 1881. On the-2d day of November, 1881, Guthrie appeared in the County Court with the ward and made a final statement of his account as her guardian,-showing that he owed her $4,298.80. Below the statement of his account the county clerk wrote a receipt to Guthrie for that sum, and an acknowledgment that the statement of account was correct and the ward signed it. Guthrie, the guardian, died early in 1888, and shortly after, this suit was instituted against the sureties on the guardian’s bond to recover the amount due the ward as shown by the statement of account filed in the County Court November 2, 1881. Several pleas wore filed and the case went to a hearing upon the second plea of payment, and replication thereto, and a plea which set up in substance that on the 2d day of November, 1881, in the County Court of St. Clair County and in presence of said ward, who was then over eighteen years old, Guthrie made his final settlement as guardian, from which it appears that there was due her on that day the sum of §1,298.80, which the court approved, and that the ward, understanding all the facts and for the purpose of having the estate settled and the guardian discharged and the sureties on his bond discharged, made an agreement with said Guthrie to the effect that she should execute a receipt discharging the guardian and sureties, and that said Guthrie should act as her agent and retain the said sum of money for her benefit, and pay the same to her when requested, and for said purpose executed her certain acknowledgment in writing and filed the same in said court, in and by which she acknowledged having received said sum in full of all claims she had against said Guthrie as her guardian, whereby the bond became void.

To this plea a replication was filed denying, seriatim, all the allegations of the plea, except that of the settlement and amount due. Upon the trial of the case, the defendants introduced in evidence a book of account kept by Guthrie, beginning November 2,1881, with Tirza A. Johnston. To this no objection is shown to have been interposed. Had such objection been made, it would be difficult to state any legal ground upon which this evidence was competent.

The receipt of the ward plainly made out a prima facie case of payments, but the other evidence in the case conclusively shows that no money was paid by the guardian to the ward when the receipt was given.

The guardian was the uncle of the ward, and had her full confidence, and it is shown that she was made to believe by her uncle that it was necessary for her to sign such receipt to enable him to make a settlement with the County Court. Not only is it shown by the county clerk that no money was paid when receipt was given, but George B. Blair testifies that Guthrie told him he had not paid the money. He says: I asked him about taking the girls to Belleville and getting them to sign a receipt, and he said he took them to sign receipts so that he could settle with the court. I asked him how it was that he did not turn over to them any money. He said the court did not compel him to turn over the money to them. I asked him if he had turned it over since. He said he liad not, and that he still had their guardian money and had it loaned out.”

The allegation in the plea that the ward, after majority, made an agreement with the guardian to the effect that she should execute a receipt discharging the guardian and sureties, and that Guthrie should act as her agent and retain the money due her for her benefit and pay the same to her when requested, finds very little support in the testimony. It will be seen that the County Court did not enter an order discharging the guardian. The full text of the record of the court-is as follows: “And now comes George W. Guthrie, guardian of Tirza A. Johnston, ward, and presents to the court his final settlement with said ward, showing a balance due ward of $4,298.80, which is by the court examined and approved, and ordered to be filed and recorded.” The testimony of the mother of the ward is relied onto prové the allegation in the plea above set forth. We do not find that any fair construction of her testimony proves or tends to prove said allegation. A number of questions were asked this witness by the defendants, who called her, to which objections were interposed and overruled, which we think should have been sustained. We know of no rule of law that would warrant such a cross-examination of a witness by the party calling such witness, as was permitted of this witness.

George B. Blair testified that in a conversation with Guthrie in October, 1886, witness asked him, after Guthrie stated he had the girls’ guardian money loaned out, “Are you their agent—ever appointed you agent to loan that money?” He said they had not, but lie was acting with Mrs. Fellows, independent of the girls. In relation to Tirza’s money, he said “ he did not intend to pay her until she got married, or a short time afterward, to see how things opened out.” It is urged that the fact that Tirza got some money from Guthrie to put in the store with Sherrard, is proof tending to show that ■ Guthrie held her money as agent. Mrs. Sherrard swears that Guthrie told her this was rent money. These girls owned a large tract of land, and after they became of age their uncle acted for them in leasing this land and in collecting the rents. This agency in leasing their land and collecting the rents would seem to be the only support to be found for the theory that after these girls became of age, Guthrie held the money due to them from him as guardian, as agent, and not as guardian. We fail to find in the whole testimony in the case, any sufficient support of the allegations of the plea.

The fifth instruction given for defendants was vicious in several particulars. An instruction which attempts to recite the facts of a case should embody all the facts. Singling out particular.facts, and calling the attention of the jury to them without noticing the other facts of the case, is always objectionable. Again, this instruction, so far as it would lead the jury tv believe that a demand by the ward upon the guardian in his lifetime, for payment, and after his death, notice to the sureties that her money had not been paid to her, were necessary to be shown before she could recover, was clearly erroneous.

It is incidentally urged that the fact the ward signed a receipt in full under the circumstances shown in this case would, after the lapse of six or seven years, estop her from asserting her claim against the sureties. An estoppel in respect of the element here involved, is where one, by acts or declarations, represents a certain state of facts to exist and thereby brings about a change of conduct in another, he can not afterward be heard to assert a contrary state of facts if injury would result to the party who had acted, relying upon the truth of the representations. The guardian was not discharged. It does not appear that the sureties were lulled into inaction by the signing of this receipt. It is pertinent to inquire, what were these sureties led to do, or not to do, by the fact that this ward had signed a receipt to her guardian for the amount found due her? Nothing, so far as this record shows.

It does not appear that either of these sureties ever knew ' of the giving of the receipt. It was their duty, if they desired to be relieved from liability on the bond, to see to it that the guardian discharged his trust. Had they gone to the record of the County Court and found this receipt, they would also have discovered that the guardian had not been discharged. Inquiry of the clerk why discharge had not been ordered by the court, would doubtless have revealed the fact that no money was paid when the receipt was given. It may be safely assumed that if the county judge was made acquainted with the fact that no money was paid by the guardian to his ward when the receipt was signed, a discharge would not have been granted except upon proof of the payment of the money due. We can not believe that any court having charge of the interests of infants would think of discharging a guardian simply upon the production of a receipt from his ward, who was a young girl, barely eighteen years of age, and the niece of the person appointed her guardian, by virtue of - his relationship to her, when the court knew that no money had been paid her.

The case of Gillette v. Wiley, decided by the Supreme Coirrt of this State, and reported in 19 hi. E. Eep. 287, presents facts much stronger in support of an estoppel than are found in this case. The surety in that case had required the guardian to give him a mortgage on his farm to indemnify him as such surety. When the ward arrived at his majority the guardian made his final report, which showed a certain sum due the ward. The account was examined and approved by the court, and the guardian directed to pay the amount due to the ward. Shortly afterward he produced in court the ward’s receipt for the amount found due, and thereupon the guardian was discharged by order of court. The guardian applied to the surety to release the mortgage given him as indemnity, and the surety went to the County Court and examined the records in the case and found that the guardian had made final settlement and been discharged by the court. The surety then released the mortgage; the guardian sold the farm and subsequently became insolvent. The ward, some ten years after the discharge of the guardian, instituted proceedings to recover the money due him from the surety and succeeded. True it was claimed in that case that the receipt was procured by fraud, and excuse shown for the delay in proceeding to recover his money. On the other hand it was contended that by the ward’s carelessness in signing what turned ont to be a receipt to his guardian in full, he put it in the power of the guardian to practice a fraud upon the surety in gaining a release of the mortgage which the surety held as an indemnity.

. It should be stated that the ward in that case had first to have the order of the County Court discharging the guardian set aside, and for this reason brought his suit in equity. In the opinion the court say: “It is clear, however, that the guardian owed a duty .to his ward which could only be discharged by performance of the condition of his bond, and that no one except the ward had power to release the obligation of the guardian or his surety. Before the County Court could enter its order discharging the guardian, it must appear to that court that the guardian had complied with its former ' order and paid over to his ward all money in his hands belonging to said ward. Under the circumstances here shown, the mere order of the County Court would not avail to release the guardian, and if the guardian is not released by it, it is equally clear that the surety wrould not thereby be released.” Can it be contended for a moment that the signing of the receipt in this case, when no money was paid, released Guthrie? If not, then the sureties are not released.

The record discloses that during the trial, Tirza A. Johnston was sworn as a witness by plaintiff and asked if she was interested in the event of the suit' and answered that she was. This question was then asked: “ Did Guthrie, your guardian, ever pay you any of the money found due you on his final settlement as your guardian? ” The defendants objected to the putting and answering this question, because witness was interested in the event of the suit, and defendants were defending as representatives of a deceased person, George W. Guthrie, the principal of the bond, and the court sustained the objection. This witness was asked the further question: “Did you ever constitute George W. Guthrie your agent as to any money due you from him as your guardian?” A like objection was made and sustained. This ruling of the court is assigned as error. The action of the court below is sought to be sustained by Sec. 4, Chap. 57, Revised Statutes, on the subject of evidence. This section provides: “ In any action, suit or proceeding by or against any surviving partner or. partners, joint contractor or contractors, no adverse party, or person adversely interested in the event thereof, shall by virtue of section one of this aet be rendered a competent witness to testify to any admission. or conversation by any deceased partner or joint contractor,” etc.

This provision excludes adverse party or person adversely interested from testifying to any admission of, or conversation with, the deceased joint contractor,and does not preclude such adverse party or person adversely interested, from testifying to facts other than admissions of, or conversations with, the deceased partner or joint contractor. Neither of these questions called for such admissions or conversations, and the objections should have been overruled, unless- under some other provision of the statute the witness was rendered incompetent. It is urged that she was incompetent under Sec. 2 of the same chapter. That section provides that no party to an action or person directly interested therein, shall be allowed to testify of his own motion or in his own behalf, where any adverse party sues or defends as the trustee or conservator of any idiot, etc., or as the executor, administrator, heir, legatee, or devisee of any deceased person. The defendants in this case did.not defend in any of these capacities. Section 4 was made to cover a case where the defendants defend as do these defendants, and as we have seen, that section only precludes the adverse party or person adversely interested from testifying to any admission or conversation .of the deceased joint contractor. We think the court erred in sustaining the objections to these questions. If the answers to these questions should include any admission of the deceased guardian or any conversations with him, that should be excluded; but the questions as framed did not call for any such admission or conversation.

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

Reversed and remanded.


author: Green, P. J.

text:
    Chicago and Alton Railroad Company v. William Willard.

      Railroads—Rules and Regulations—Tickets—Loss of—Failure to Find—Ejectment from Train—Reasonable Time—Trespass—Evidence— Verdict against the Weight of.

    1. A carrier by rail is bound to use the highest degree of care in the transportation of passengers, and to make and enforce reasonable rules necessary to the performance of such duty.
    2. Upon the failure of a passenger to obey such rules, he may be ejected from the car by the conductor or other proper person, without unnecessary violence.
    3. A passenger has no right to resist his lawful ejectment, and if he does so and is injured he can not recover.
    4. A rule requiring a passenger upon a railroad train to produce and exhibit his ticket to the conductor, or pay his fare, is reasonable and just.
    5. A passenger who has mislaid his ticket is entitled to a reasonable time in which to find it.
    6. The time occupied by a passenger train in running from one station to another is sufficient to allow a passenger, using ordinary diligence, to find a lost ticket.
    7. In an action of trespass brought against a railroad company for the recovery of damages for an alleged unlawful assault and ejectment from a train, this court holds that the verdict in behalf of the plaintiff is contrary to the evidence, and must therefore be set aside,
    [Opinion filed March 14, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Luke H. Hite and William Brown, for appellant.
    Mr. William Winkelmann, for appellee.
   Green, P. J.

This suit in trespass was brought by appellee to recover damages on an alleged unlawful assault and eiectior from defendant’s train by defendant’s servants. The judg ment below was for §475 and costs in favor of appellee, and appellant appealed.

So much of the declaration as is necessary to an understanding of the grounds for recovery claimed, is as follows: Plaintiff avers that on the day aforesaid he purchased a pass or ticket to be carried on said road from East St. Louis to Springfield, which pass or ticket was one of the regular and legally issued passes or tickets for conveyance of passengers issued by said defendant; and plaintiff, while in possession of said pass or ticket, entered a passenger car of defendant then in the act of moving, and defendant received plaintiff as such' passenger, and it became the duty of defendant to safely carry plaintiff from East St. Louis to Springfield. And plaintiff avers that about two miles from East St. Louis defendant, by its conductor, demanded of plaintiff his pass or ticket. Upon such demand plaintiff made diligent search in his pockets and about his person, but without avail, and thereupon informed the conductor that he had bought a pass or ticket, and had the same in his possession, but was unable to find the same, but if conductor would grant him time he would find said pass or ticket, and deliver same to conductor; but conductor, without a word of warning, seized plaintiff’s neck and threw plaintiff upon the floor of the car, and with force and violence pulled plaintiff out of the car and directed the brakeman to lay hold and pull plaintiff about, all of which brakeman then and there did, and the conductor refused to take plaintiff on said car and. convey him to Springfield, whereby plaintiff was compelled to remain off said train and await the arrival of the next of defendant’s train, to be conveyed to Springfield.. Plaintiff avers that at least fifty passengers were riding on said cars and all of them witnessed the ejecting of plaintiff, whereof plaintiff-was greatly hurt in his feelings, and put to shame and disgrace by reason of the assault and beating and throwing and pullin’g of plaintiff upon the floor, to the damage of plaintiff of $1,500.

The pleader, by the use of these averments, doubtless intended to charge that a reasonable time was not given plaintiff to produce and exhibit to defendant’s conductor, after demand therefor, the ticket which evidenced plaintiff's right to transportation, and hence that defendant’s servants were guilty of trespass in forcibly removing him from the train.

An examination of the record satisfies us that the evidence establishes the following facts: that plaintiff was forcibly removed from the train of defendant by its servants, he then having in his possession a coupon ticket issued by a railroad company other than defendant, entitling plaintiff to transportation over several lines of railroad, and, among others, that of defendant from East St. Louis to a point beyond Venice; that plaintiff got on defendant’s train at East St. Louis, and at or before reaching the first stop of the train after leaving East St. Louis, defendant’s conductor, then known to be such by plaintiff, demanded of him his ticket, which was not then produced, and conductor left plaintiff and passed through the car and took up and collected tickets or fares from all the other passengers, after which he again returned to plaintiff and demanded of him his ticket or fare, and warned him if he did not comply with such demand, he, the conductor,, would put plaintiff off the train at Venice, the next stop. That plaintiff did not at any time exhibit his ticket, or pay or offer to pay his railroad fare to the conductor, and was not ejected from the train until it had stopped at Venice, the next regular station beyond East St. Louis on defendant’s road, but not the first stop, and the force used in removing plaintiff from the train was made necessary by his resistance, and was not greater than required to overcome that resistance, and the jury possibly might have been warranted in finding, as a fact, that plaintiff told the conductor he had a ticket.

Having thus stated the material facts as we find them to be, we deem it proper to advert to some of the rules laid down by our Supreme Court, other courts of last resort in sister States, and in elementary treatises, touching the reciprocal rights and duties of passenger carriers and passengers. The carrier is bound to use the highest degree of care and diligence to provide for the safety and security of the passenger while being transported, and has the right to make and enforce reasonable and just rules to enable it successfully to perform the duties it owes its passengers, and the latter must comply with such rules, and failing and refusing so to do after reasonable notice and request made by one authorized to enforce the same, at once becomes an intruder, forfeits his right to be carried, and may be ejected by the use of. force without unnecessary violence.

The rule is reasonable and just which requires a passenger to produce and exhibit a ticket when requested by the conductor to pay his fare; if he fails or refuses to comply with such request, and as between the conductor and passenger the ticket purchased by the latter is the only evidence of the right of the passenger to be carried, the conductor can not be expected to accept explanations of the passenger when he fails to produce any ticket, but, if the passenger has mislaid his ticket, he is entitled to a reasonable length of time in which to search for it.

It is also held as a rule that if the conductor has the lawful right to eject the passenger and is proceeding to do so in a lawful manner, the latter has no right to resist, and if in doing so he receives injuries he will have no one to blame but himself. The rule requiring the passenger to exhibit a ticket or pay fare being reasonable and just, the conductor owes the duty to his employer to enforce it and to eject the passenger failing to comply therewith. The performance of this duty is a lawful act of the conductor unless unnecessary force or violence is resorted to by him, and resistance by the passenger to such lawful act is a wrong on his part; under such circumstances he has no right to repel force with force, and invite an assault and the struggle which might ensue. See Ill. Cent. R. R. v. Whittimore, 43 Ill. 420; C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 504; The Penna. R. R. Co. v. Connell, 112 Ill. 295; Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 295; Murphy v. Union Ry. Co., 118 Mass. 228; L. S. & M. S. Ry. Co. v. Pierce, 47 Mich. 277; Frederick v. M. H. & O. R. R. Co., 37 Mich. 342; Thompson’s Carriers, of Passengers, 336, 338; Hutchinson on Carriers, top paging 470, et seq. Summed up, then, the authorities cited support the -doctrine that the carrier has the right to adopt reasonable rules in order to enable it to properly execute its responsible and sometimes difficult duties, insure the comfort and safety of its passengers, and protect itself from wrong and imposition; that it is a just rule to require one claiming the right to transportation to produce and exhibit to the conductor, on request, the ticket which evidences such right (reasonable time being allowed him to comply with such request), or pay his fare; that it is the duty of the conductor to enforce this rule, and the duty of the passenger to conform thereto or forfeit his right to remain on the train and be carried.

In this case defendant’s conductor, in the performance of his lawful duty, requested appellee to show his ticket, the only sufficient evidence of his right to be carried which the conductor was authorized to recognize; time was then given appellee while the train ran from the point such request was made and until it had reached Venice, the next station, and until the conductor had taken up and collected tickets, or fare, from every other passenger in the car, and it appears from the evidence that during all this time appellee did not endeavor to find his ticket so that he might be able to show it to the conductor on his return; that at Venice he was again requested by the conductor to produce his ticket or pay fare, and failed and refused to do either, although warned by the conductor of the consequences of such default; and having thus, by his own conduct, become an intruder, and forfeited his right to remain upon the train, he refused to leave the car, and force, occasioned by his resistance, became lawful and necessary to remove him from the train, and we find the force so used was ' not excessive. It is insisted, however, reasonable time was not given appellee to exhibit his ticket; in other words, that he was entitled to the right of being carried past the station at Venice to afford him time to find and produce it, and hence his ejection was wrongful. Under the facts proven it would be unreasonable to sustain this contention unless under some exceptional and unusual circumstances. The time occupied by a passenger train in running from one regular station to another is amply sufficient to enable a passenger, using ordinary diligence, to produce and exhibit his ticket to the conductor, and this is demonstrated in the case at bar. Within the time mentioned every passenger except appellee had shown his ticket or paid fare, and appellee alone was derelict. He had then forfeited his right to remain on the train by a failure and refusal to comply with reasonable rules adopted by defendant. His own dilatory action and negligence had brought about this result, and it then became his duty to leave the train when requested so to do by the conductor, and without resistance. Had he left the train quietly and peaceably, no struggle would have ensued; he would have been subjected to no íorcÜi or violence, and suffered only the inconvenience of two hours’ delay, for which no one but himself was to blame. Applying the law to the facts in this case, as we find them to be from the evidence, appellee had and has no legal right of action against the appellant, and no good reason exists for remanding the cause. In reaching this conclusion we have not been unmindful of the rule that it is the province of the jury to determine the weight and credit which should be given to the testimony, and settle conflicting evidence, but feel constrained in this case to recognize and apply another rule quite as salutary and equally imperative, and that is, if, when all the evidence has been carefully examined and fairly considered, the'finding of the jury appears to the court so manifestly wi'ong and unwarranted as in this case it appears to us to be, the verdict should be set aside. Railroad corporations must be compelled by the courts tó perform all the duties imposed upon them by the law, and in the manner required by the law, and it is the duty of courts of review to sustain judgments rightfully rendered against them for damages resulting from, or occasioned by, the wrongful and illegal acts of their agents or servants. But it is equally obligatory upon courts to hold passengers to a, like performance of the duties the larv imposes upon them, and to set aside verdicts and reverse judgments rendered in their favor, unwarranted by the evidence and against the law. In this latter category we place this case, and reverse the judgment of the Circuit Court without remanding the cause.

Judgment reversed.


text:
    Joseph Telford v. Gerhardt W. Garrells et al.

      Trust Deeds—Foreclosure—Usury—Agent's Commission— Voluntary Payment of Interest to Assignee of Note by Assignor—Subrogation— Interest upon Overdue Interest—Rea Adjudícala—Evidence—Solicitor’s Fees.

    1. A loan procured by an agent of the borrower upon the understanding that he is to receive for his compensation a certain percentage of the amount borrowed, and that the same is to be deducted therefrom and paid by the lender, he being in no wise benefited thereby, is not usurious.
    2. Where a principal makes a loan through his agent, who is not authorized to charge more than the legal rate of interest, and the principal does not know that such agent has so charged and does not receive the excess, the transaction is not usurious as to such principal.
    3. The allowance by the debtor upon settlement, of interest upon annual interest due and unpaid, will not render the transaction usurious.
    4. The assignor of a note may waive the statute which provides for a recovery by the assignee against the assignor only upon condition that the former shall first prosecute the maker to insolvency, or show that a suit against him would have been unavailing; and he may pay the interest due and unpaid upon the notes he has endorsed, and as against the maker retain his right to reimbursement therefor.
    5. Upon a bill to foreclose a trust deed, .this court holds that the notes in question are not usurious; that the husband alone was properly ordered to pay the mortgage debt; that the solicitor’s fee stipulated for was properly allowed, and that the claim that certain matters touching interest were res adjudicata can not be maintained.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Marion County; the Hon. William H. Snyder, Judge, presiding.
    Garrells filed his hill in the Circuit Court against Joseph Telford and wife and said assignees of T. Ryhiner & Co. to foreclose a trust deed executed 'by Telford and wife to secure the payment of twelve notes for $1,000 each,, dated April 21, 1880, payable to Ryhiner & Co., all of said notes, except the one last due, executed by the Telfords, and the last one signed by the husband only. Three of these notes matured in two years, three in four years, and the remaining six notes in five years after their date, with eight per cent, interest, payab'e annually. The nine notes maturing in four and five years were assigned by Byhiner & Co. to other parties, and from these parties, by assignments subsequently made, passed to Ga'rrells, who was admitted to be, at the hearing, the legal owner and holder of said nine notes, to enforce the payment of which he filed his said bill. The three notes due in two years were retained by Byhiner & Co., who became insolvent in 1885, and in 1886 their assignees in bankruptcy, said appellees, filed a bill against Telford and his wife to foreclose said trust deed as to said three notes, and in August, 1886, while the suit was pending, Telford paid to the assignees the amount due thereon, and thereupon the cause was dismissed at defendant’s cost.
    In the bill filed by Garrells, he claims there' is due him §9,000 principal, and interest thereon from April 21,1885.
    The Telfords, in answer thereto, set up, among other matters, that they paid the interest due on said nine notes from April 21, 1883, for the year ’ending April 21,1884, to Ryhiner & Co., Garrells not being then the owner of the notes; that on July 20, 1886, complainant and defendant Telford unlawfully and corruptly agreed that complainant would forbear the principal of said notes for one year, and for such forbearance defendant should pay him $763.20, which sum exceeded the lawful interest, and was paid by defendant to complainant for the-forbearance of said $9,000 for one year; and in their amended answer said defendants deny receiving $12,000 on the delivery of the twelve notes and trust deed, but allege they received no more than $11,760, and that Cone, the agent of Ryhiner & Co., charged and kept §240 as commission, and thereafter, as such agent, charged and received interest on the whole sum of $12,000 for the four succeeding years; that the contract for the loan of money evidenced by said notes and secured by the trust deed was a corrupt and usurious contract- between the parties to pay and receive more than eight per cent interest, in this, that by the terms of each of said notes respondents were to pay the principal sum named therein sixty days before said notes upon their face were due, together with th n full year's interest, to be paid sixty days before the end of the year, which said interest for two months was contracted and agreed to be paid in excess of the legal interest; and in pursuance of such usurious contract respondents paid the three notes first maturing, and the sixty days’ usurious interest, and all the interest on the other nine notes, $7‘20 per annum, up to and including the year 1884, and set up usury as a defense.
    The appellees, assignees of F. Ryhiner & Co., after filing their answer to Garrells’ bill, exhibited their cross-bill, alleging the assignment to Gruner, Haller & Co., by Ryhiner & Co., of the nine notes payable in four and five years; the default of the Telfords in the payment of the annual interest thereon, maturing April 21, 1884; the demand by Gruner, Haller & Co. upon Ryhiner & Co., as indorsers, for the payment of such accrued and unpaid interest; the payment thereof to Gruner, Haller & Co., by Ryhiner & Co., as indorsers, by means whereof the last named firm became and were, to the extent of such payment of §720 interest, subrogated to all the rights of the holders of said notes in the mortgaged premises, and were entitled to have said money, with lawful interest from the date of payment, repaid to them by the Telfords, or in default thereof are entitled to have the same repaid to them out of the proceeds of any sale of said premises under any decree foreclosing said deed of trust; further allege the assignment to complainants, on May 5, 1885, by Ryhiner & Co., under the laws of Illinois, of all their property, for the benefit of their creditors; that the Telfords did not pay said sum of §720 to Ryhiner & Co. prior to the date of said deed of assignment, nor to the complainants since that date; prays for accounting, etc.; that the Telfords be decreed to pay amount found due, .and in default of such payment the mortgaged premises be sold to satisfy said debt and costs.
    In their answer to said cross-bill the defendants deny they defaulted in the payment of said year’s interest; deny that Ryhiner & Co. paid it with their own money, but aver they paid it with money furnished by respondents; deny demand upon Ryhiner & Co., as indorsers, as alleged ; deny other material allegations in cross-bill and the right of complainants to the relief prayed for. The cause was heard upon bill, cross-bill, answers, replications and evidence introduced on behalf of Garrelis, the said assignees of Ryhiner & Co., and Joseph and Laura Telford.
    The court, in the decree, finds the facts to be substantially as alleged in the bill and cross-bill; finds the rights and interests of said assignees of Ryhiner in the mortgaged premises to be subject to the lien of Garrelis; that by the provisions of the deed of trust he is entitled to recover his reasonable attorney’s fees and to a lien for the amount thereof upon the mortgaged premises; that §250 is a reasonable sum to be allowed him for such fees; and that the total amount due him on August 29, 1888, for principal and interest on lfis said nine notes, is §11,416 ; that Ryhiner & Co. became and were subrogated, to the extent of said payment of §720, to all the rights and interests of the holders of said notes in the mortgaged premises, subject to the rights of complainant Garrelis; that there is due the cross-complainants, as assignees of Ryhiner & Co., the sum of §720 for said interest paid, and they are entitled, by way of subrogation, to a lien for that amount upon the mortgaged real estate, subject to the lien of Garrells. It is further decreed that defendant, Joseph Telford, within sixty days from August 29, 1888, pay to complainant Garrelis said sum of §11,416 and §250 solicitor’s fees, and to cross-complainants said sum of §720, with six per cent, interest from date of decree, and costs, and in case of default in making payments as decreed, the mortgaged premises to be sold, and proceeds of sale to be used and applied to the payment of costs, expenses and solicitor’s fees, and the debts found due said Garrelis and the assignees of Ryhiner & Co., the surplus, if any, to be brought into court, etc.; defendant Jose; h Telford alone appealed, and brings the record to this court for review, and asks that the decree may be reversed.

      Messrs. Henry C. Goodnow and W. & E. L. Stoker, for appellant.
    Mr. W. C. Kueffner and Krome & Hadley, for appellees.
    “ The burden of proving a transaction usurious rests upon the party alleging it. The usury must be established by a preponderance of evidence, or else the defense fails. Where the lender of money, at the request of the borrower, pays out of the money loaned commissions and other expenses to third persons as agents of the borrower in procuring the loan, being of nc benefit to the lender, this will not render the transaction usurious.” Kihlholz v. Wolf, 103 Ill. 363.
    “ When a principal does not authorize his financial agent, in placing a loan, to charge a greater rate of interest than the law allows, and has no knowledge that a larger rate is charged by the agent, and does not receive the excess of interest, the defense of usury can not be sustained against him.” Boylston v. Bain, 90 Ill. 283; Brown v. S. A. Mortgage Co., 110 Ill. 235; Hoyt v. Pawtucket Ins. for Savings, 390; Cox. v. M. M. L. Ins. Co., 113 Ill. 382; Callender v. Roberts, 17 Ill. App. 539.
    “ A debtor, on settlement, may,if he chooses, allow interest on annual interest due and unpaid, and this will not render the transaction illegal.” Haworth v. Huling, 87 Ill. 23.
    A note given for interest on arrears of interest is not usurious. Edgerton v. Weaver, 105 Ill. 43; Wilcox v. Howland, 23 Pick. 167.
    At most, the claim of the appellee, Garrells, for interest on the overdue interest was one that he might not have been able to enforce at law. But it was acquiesced in by the appellant and the amount claimed was paid by him. That ended the transaction, and it can not affect the validity of the notes remaining unpaid.
    It is claimed that if appellant did not pay "the interest in question, that F. Eyhiner & Co. paid it as volunteers, and therefore can not recover it back. This depends wholly upon the relation of the parties to the debt. The notes were made payable to F. Byhiner & Co., and were by them indorsed to third parties. Counsel say that “when Byhiner & Co. assigned these notes the relation of creditor and debtor between them and Telford ceased to exist.” Is this true? The act of indorsement forms a new contract between the indorser and indorsee, which constitutes or implies a promise that the note is due and pajmble according to its tenor, and that the maker will pay the same at maturity, and that the indorser will pay the same if the maker does not; and this promise is made, not only to the immediate indorsee, but to every subsequent indorsee. 2 Parsons on Botes and Bills, 23.
    It is true that our statute provides that before a recovery can be had by an assignee against an assignor or indorser, that the assignee shall prosecute the maker to insolvency or show that a suit against him would have been unavailing. This is a protection the statute gives to the assignor, and is not made for the benefit of the maker. It is the duty of the maker of negotiable paper to pay it when it becomes due. The liability of the indorser is conditional, but the condition being solely for his benefit may be waived by him and can not concern the maker. Houck v. Graham, 106 Ind. 155; Hosier’s Appeal, 56 Penn. St. 76.
    Our own Supreme Court very fully considered the question of subrogation in Lochcnmeyer et al. v. Fogarty et al., 112 Ill. 583, and cited with approval Eddy v. Trevor, 6 Paige, 521, wherein it is held'that “it is an established principle of equity that sureties, or those who stand in the situation of sureties for those who pay a debt for them, are entitled to stand in the place of the creditor, or to be subrogated to all his rights as to any fund, lien or equity which he may have against any other person or property on account of the debt.” And see Lochenmeyer et al. v. Fogarty, 112 Ill. 583 ; Conwell v. McCowan et al., 81 Ill. 286; Richeson v. Crawford, 94 Ill. 165 ; Eddy v. Trevor, 6 Paige, 521; City of Keokuk v. Love, 31 Iowa, 119; Orem v. Wrightson, 51 Md. 34.
    Can the matter set up by these appellees in their cross-bill be considered as res adjudicata under the facts as disclosed in this record ?

      The bill filed by them against appellant in August, 1886, was to collect the amount due on the first three notes mentioned in the mortgage. ¡Nothing contained in that bill had any reference to the claim or demand embraced in appellee’s present cross-bill. The former suit was to compel appellant, as maker, to pay to ¡F. ¡Ryhiner & Co.’s assignees, as payees, the principal and interest of three notes; while this proceeding, under the cross-bill, is to compel appellant, as maker of nine other notes, to pay to the same parties the interest for one year on these nine other notes, which interest was paid by appellees as indorsers of- the notes to their indorsees. The interest on all of these notes was payable annually. It has been repeatedly held by the Supreme Court of this State that a note like the ones in question contains two contracts—■ one to pay the principal and the other to pay the interest; each contract forming a separate and distinct cause of action. “Being a promise to pay the debt at one time and the interest at another, it must be construed as containing distinct promises, giving several causes of action, and these being several in their origin, no subsequent event can make them one and entire.” Dulaney v. Payne et al., 101 Ill. 328; Wehrly v. Morfoot, 103 Ill. 185; McDole v. McDole, 106 Ill. ,458; Kurz v. Suppiger, 18 Ill. App. 630.
    As to when a prior adjudication between the same parties is conclusive and operates as an estoppel, we will only cite the recent case of The Riverside Co. v. Townshend et al., 120 Ill. 18. We can best state the rule by quoting the language of the court: “There is a well founded distinction laid down in the books between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or cause of action, and its effect as an estoppel in another suit between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action * * * concluding parties, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or • question actually litigated and determined in the original action, not what might have been thus litigated and determined.” Riverside Co. v. Townshend, 120 Ill. 18; Cromwell v. County of Sac, 94 U. S. Rep. 351.
   Green, P. J.

Appellant’s objections to the decree, so far as complainant Garrells is concerned, are, that the court refused to sustain the defense of usury ; that a solicitor’s fee of $250 was allowed ; that the decree was against the appellant alone ; and the findings of the court were against the evidence. It is insisted the notes are usurious on their face, because it is agreed therein that eight per cent, interest shall be paid for a period of sixty'days longer than .the makers are to have the use of the principal; the nine notes are exactly alike in tlioir terms, except as to the time of maturity, three becoming due in four, and six in five years; hence the following copy of one will correctly show the contract between the parties in each and all:

“$1,000. State of Illinois, Madison Count?, | Highland, April 21, 1880. j

Four years after date, we, the undersigned, Joseph Telford and Laura A. Telford, or either of us, promise to pay to F. Ryhiner & Co., or order, the sum of one thousand dollars, for money actually borrowed and received, with eight per cent, annual interest from this date until paid, said interest payable annually, sixty days previous to the lapse of each year, at the office and into the hands of F. Ryhiner & Co., at Highland, Madison county, Illinois, against special receipts therefor, signed and delivered by said F. Ryhiner & Co. for each such payment, such receipts to be good and valid toward any subsequent owner or holder of this note, the principal also payable at the office of F. Ityhiner & Co. sixty days before maturity of this note. Given under our hands and seals at the place and on the day and year first above written.

Joseph Telford, [Seal.]

Bo. 1935. Ladra A. Telford. [Seal.] ”

It is said this note, properly construed, binds the makers to pay the principal in forty-six months, and to pay interest thereon for the full period of four years; hence, an excess of interest is reserved for the time the principal is actually used over the amount of lawful interest allowed for its use for that length of time; but we understand by the very terms, “ with eight per cent, annual interest from this date until paid,” interest ceases when the principal is paid, and if that is paid at the expiration of ten months in the fourth year, ten months’ interest for the time the principal was used in that year is all the makers contracted to pay and all the holder has a right to demand, and such was the understanding and intent of the parties; hence, the note, for that reason, is not usurious on its face, nor was it usurious to contract for the payment of annual interest sixty days before the end of each year. Brown et al. v. Mortgage Co., 110 Ill. 235. It is further insisted the money for which these notes were given was loaned to Joseph Telford by Ityhiner & Co., through their agent,'Cone, to whom the borrower paid a commission of two per cent, on the sum loaned, and taking this sum as commission was a mere device to evade the usury laws, and tainted the transaction with usury; but we think the court properly found from the evidence, Cone was employed by Telford and acted as his agent in procuring the borrowed money; that the commission was paid him as a compensation for his services as such agent in negotiating the desired loan, of which commission the lenders received no portion, and from its payment derived no benefit; and that Telford received from Ityhiner & Co. the full sum of §12,000, for which the notes were given.

If the borrower employs an agent to effect a loan and agrees to pay him as compensation for his services a percentage on the sum loaned, even though such commis'sion is paid by the lender to the agent, by request of the borrower, out of the sum loaned, the lender deriving no benefit therefrom, this will not affect the rights of the latter, or make the loan usurious; and in this State if the principal does not authorize his agent to charge more than legal interest upon the loan, and has no knowledge that a higher rate was charged, and does not receive the interest paid in excess of the legal rate, the defense of usury can not be sustained against such principal. Ryhiner & Co.’s rights were not affected by the transaction between Telford and Cone in the payment and receipt of the two per cent, commission, nor did that transaction make the loan usurious. Boylston v. Bain, 90 Ill. 283; Hoyt v. Pawtucket Inst. for Savings, 110 Ill. 390. Appellant also claims it was usurious to receive interest upon overdue interest. It appears that the annual interest on the nine notes due April 21, 1885, was not paid to Garrells until January, 1886. At that time Telford called on Garrells and paid the year’s interest, and interest on that for nine months it remained overdue. If Telford allowed and paid interest on interest in arrear, we do not understand the acceptance thereof by the holder affected his notes with usury or furnishes a reason for disturbing this decree. Haworth v. Huling et al., 87 Ill. 23.

The allowance of $250 for solicitor’s fees is also assigned for error; but it appears by the record the trust deed provided for the allowance of a reasonable attorney’s fee, and $250 was shown by the evidence to be a reasonable compensation for the services rendered by complainant’s solicitors. In the absence of any sufficient reasons for disallowing it, the fee so stipulated to be paid was properly allowed. McIntire v. Yates, 104 Ill. 491. It is said, however, that Garrells refused to accept the amount due him on the nine notes from Telford unless the $720 claimed in the cross-bill was also paid, and such refusal caused the present litigation; that therefore it was inequitable and unjust that Telford should be compelled to pay Garrells’ solicitors for carrying on a litigation which might have been avoided but for his wrongful refusal to accept the full amount of his claim; but the evidence failed to show that Telford at any time tendered Garrells the amount due him, and he was obliged to file his bill to enforce its payment.

The objection that Joseph Telford alone was ordered to pay the mortgage debt is without merit. He procured the money borrowed for his own use, and used it in the purchase of land, and can not be permitted to assign for error the order of the court that he repay the borrowed money. We will now examine and dispose of the objections to so much of the decree as applies to the cross-bill. This portion of the decree is claimed to be erroneous for the following reasons: first, because Telford himself paid the $7520 annual interest alleged to have been paid by Ryhiner & Co.; second, if the evidence fails to prove the payment by Telford, and Ryhiner & Co. did make such payment, they did so as volunteers, and could not maintain a suit therefor, and their assignees are not entitled to recover: and third, if it be held such payment by Ryhiner & Co. was not voluntary, then the claim therefor is res adjudícala, by reason of the final order dismissing the bill of appellees in 1886, mentioned in the statement of this case; and it is further insisted that Telford and the said assignees had a final settlement and adjustment of all claims, including this, in August, 1886. The first contention presents a question of fact, and the court was warranted by the evidence in finding that'Telford did not pay said annual interest, but Ryhiner & Co. did pay it. The second contention, that Ryhiner & Co. were mere volunteers, and as such could not pay the interest due, and thus, without the consent of the Telfords, make them their debtors, is not tenable when the true relation between the parties is understood. The Telfords owed this interest and were primarily liable to pay it to Ryhiner & Co., or to the assignees, if the notes were assigned, or in case of default by the makers and the payment thereof to the assignees by the indorsers, in fulfillment of their contract as such, then the Telfords, as makers, became liable to reimburse the indorsers, who, in discharge of a legal liability, paid for the makers the debt they by their contract had agreed to but had failed to pay, and the relation of debtor and creditor between the Telfords and Ryhiner & Co., to the extent of the interest so paid, was re-established, and to that extent the latter thereby became subrogated to all the rights and interests of the holders of said nine notes in the mortgaged premises. The provisions of th; statute for a recovery by the assignee against the assignor of a note, only upon condition that the former shall first prosecute the maker to insolvency, or show that a suit against him would have been unavailing, are said to apply in this case; but, as is suggested by counsel for appellees, these provisions are intended as a protection to the assignor, and not for the benefit of the maker. This liability of the assignor to a recovery by suit is conditional, but we perceive no reason why he may not waive the benefit of this condition, pay the annual interest due and unpaid upon the notes he has indorsed, and, as against the maker, retain his right to reimbursement. Conwell v. McCowan et al., 81 Ill. 286; Richeson v. Crawford, 94 Ill. 165.

The third and last contention above mentioned, that all matters between the Telfords and cross-complainants, including the claim for said §720, were res adjudicata by the decree dismissing said bill of appellees, can not be maintained. The sole purpose of that bill was to enforce the payment of the three notes due in two years, with accrued interest thereon, and the claim for interest paid on the other nine notes was not included or referred to ; it was a bill by those who represented the payees, and against the makers of the notes; but the cross-bill was filed to enforce the re-payment of interest upon nine other notes which the makers had failed to pay and the indorsers had paid. This was a claim and cause of action to recover which a separate suit would lie, and which complainants were under no legal obligation to consolidate with the claim set up in said bill. Conceding the correctness of the proposition insisted upon by the learned counsel for appellant, that under the doctrine of res adjudicata all matters actually determined or properly involved in a prior suit are barred as a subject-matter for a second or subsequent suit between the same parties, yet the facts in this record do not support the contention, nor does it satisfactorily appear that Telford and the assignees settled and adjudicated the claim for $720 in the settlement of August, 1886. The case of The Riverside Co. v. Townsliend et al., 120 Ill. 18, cited by counsel for appellees, supports our view upon the question of res adjudícala, which question is fully discussed in the opinion. We are satisfied the findings of the Circuit Court were justified by the evidence, and find no errors requiring the reversal of the decree. We affirm the decree.

Decree affirmed.


author: Phillips, J.

text:
    Leonard Miller v. W. W. Gray.

      Negotiable Instrument—Note—Principal and Surety—Notice to Sue— Unreasonable Delay.

    In view of the circumstances, this court holds that a suit commenced upon a promissory note thirty-six days after notice from the surety thereon to bring suit, was not brought in apt time.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of White County; the Hon. William C. Jones, Judge, presiding.
    Messrs. Organ & Organ, for appellant.
    Messrs. Williams & Parker, for appellee.
    The proof shows that Martin C. Beck, the principal in the note sued on, was wholly insolvent at the time the notice to sue was given; that his land was mortgaged for its full value; that he owned about $500 worth of personal property, and was in debt over and above incumbrances to the amount of $2,000. Suit against the principal on the very day the notice was given would have been unavailing, and Frank Beck, the other security, had paid one-half the note previous to the trial below. The fact that the principal’s mother allowed other notes to be settled out of her mortgage on the land does not prove that this debt would have been paid by her if converted into a judgment. -Martin Beck’s evidence shows that all judgments against him were not settled at the time of the trade. The appellant had every reason to believé that this note was still unpaid at the time he bought the land, yet he made no effort to have it settled out of the land—did not even request" it. There is no evidence but that Mrs. Beck would have allowed this note paid out of her mortgage just as willingly without judgment as with it, if the appellant had made any effort to have it done.
    While the insolvency of the principal may not excuse the payee from suing upon receiving notice from the surety, yet it is proper evidence to be considered by the court in determining whether the payee has, under all the circumstances, used súcli diligence as out statute requires.
    " The notice given by the appellant was insufficient. It does pot notify the appellee to sue upon the note. The notice reads as follows:
    “You are hereby notified that I don’t want to stand longer as surety on the note given by Martin C. Beck on which I am security. You will therefore make your money.”
    Similar notices under statutes like ours have been held insufficient because there was no positive demand to sue. Brandt on Suretyship and Guaranty, Sec. 504; Savage’s Adm’r v. Carelton, 33 Ala. 443; Bethune v. Dozier, 10 Ga. 235; Lockridge v. Upton, 24 Mo. 184. See also Bartlett v. Cunningham, 85 Ill. 22; Taylor v. Beck, 13 Ill. 316.
   Phillips, J.

Appellant, with one Francis Beck, were sure ties on a note for Martin C. Beck, payable to appellee. Appellant gave appellee a notice, as follows:

“ Carmi, Ill., Feb. 10, 1888.

“ Mr. W. W. Gray :

“You are hereby notified that I don’t want to stand longer as surety on the note given by Martin C. Beck on which I am surety. You. will therefore make your money.

“ Leonard Miller.”

A letter from appellee of date February 13,1888, acknowledging receipt of that notice; was in evidence. On the 20th of March, 1888, suit was brought against appellant and others, makers of the note, and judgment recovered before a justice of the peace, and an appeal prosecuted to the County Court. Because of the judge of that court having been of counsel the 'cause was certified to the Circuit Court, and on trial the plaintiff recovered a judgment, and this appeal is prosecuted.

The notice and receipt of it by appellee being shown, was the notice sufficient ? It shows the relation of principal and surety; that the surety did not want to be longer held, and directed the payee to make the money. The notice was sufficient under Sec. 1, Chap. 132, Starr &.C. Illinois Stats. At the time of giving that notice the principal *was the owner of one tract of two hundred acres of land, worth between §5,200 and §6,000, and another tract worth §800, and personal property to the value of §600 to §800. The first tract was incumbered for §5,000 and the second for §800. A part of the incumbrance on the first tract was held by the mother of the principal in the note. About the time of giving the notice the appellant was about to purchase the two hundred acre tract from Martin C. Beck, the principal in the note, and did, on or about the 10th day of March, purchase that tract for §5,200, and there then being judgments against the principal, Martin C. Beck, to the amount of §1,028, those judgments were, with his and his mother’s consent, paid from the purchase money by appellant. Money was made on executions in the hands of constables against Martin C. Beck after the 10th of February, 1888. At the time of the notice the principal in the note was indebted, over and above the incumbrance on his land, about §2,000. From these facts thus appearing, was the surety on the note released by the failure to sue at an earlier day ? Did the payee sue in time? The notice to sue was received on the 13th day of February and suit not brought until the 20th of March following. This was not within a reasonable time, nor was it due diligence on the part of the payee. From the facts it further appears that after the receipt of notice there was money made on execution against the ] rincipal. It also appears that all judgments against the princ pal were paid out of the purchase money. " This was twen y-five days after the notice. .It might well be held that such facts appearing, a suit prosecuted to judgment on notice from appellant would have been paid by the principal.

The evidence shows sufficient facts to discharge the appellant as surety, and it was error to entér judgment against him. The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Centralia and Chester Railroad Company v. Elihu H. Henry et al.

      Railroads—Construction—Right of Way—Condemnation — Damages— Appeal—Entry xmder Bund—Trespass.

    1. Upon proceedings brought by a railroad company to condemn a right of way across private property, a bond having been given by such company under See. 13, Chap. 47, Starr & C. Ill. Stats., subsequent to an appeal from the finding of the jury as to damages, this court holds that its entry thereunder was proper; that the affirmance of the judgment by the Supreme Court vested the right of way in the company, and fixed its liability on its bond in the amount of the judgment, together with interest and costs.
    2. The question as to the adequacy of damages, the same not appearing among the causes specially assigned in support of the motion for a new trial, ■ must be considered waived. Such question can not be first raised in this court.
    3. A temporary abandonment of the right of way would not defeat the right of recovery of damages.
    4. In case of abandonment after entry under bond, the obligors would be bound to the extent of the damage done.
    [Opinion filed June 15, 1889.]
    Appeal from tlie Circuit Court of Washington County; the Hon. William H. Snyder, Judge, presiding.

      Messrs. W. S. Forman and Daniel Hay, for appellants.
    Messrs. J. A. Watts and W. Henry Moore, for appellees.
   Phillips, J.

The facts out of which this action originates are as follows:

In 1886 the Centralia & Chester Railroad Company filed before Judge Vernor, County Judge of Washington County, in vacation, its petition to condemn a right of way over the lands of appellees, and such action was taken thereon that on Rovomber 15th, a jury assessed as compensation and damages for said right of way the amount of 8650, with which amount appellees were not satisfied, and they appealed the case to the Supreme Court. While said appeal was pending, the railroad company executed a bond with Thomas B. Reedies and W. S. Forman as securities, as provided by the statute in such case, which allowed said railroad company to take possession of right of way. In the following March said railroad company took possession of part of said right of way—a strip fifty feet wide and about 100 yards (300 feet) long—and cut down the timber thereon, and also plowed the right of way across a ten acre piece of land.

The judgment of the lower court was affirmed by the Supreme Court. Suit was then brought on the bond, on the ground that the railroad company had taken possession of this right of way and had retained possession thereof, and were in possession of same when this suit was instituted. The railroad company and its co-defendants, Reedies and Forman, deny that said possession as taken gives the owners of the land a right for the full compensation assessed by the jury in condemnation proceedings, and claim that the railroad company were not in possession of said right of way when this suit was instituted, so that the first real contest is over the question of possession. In the Circuit Court judgment was given against the railroad company and co-defendants for full amount of assessment of jury in condemnation proceedings.

The servants of the company entered on the land, cut the timber standing thereon, and plowed a furrow along the sides of the right of way thus condemned, and gave notice of possession. In so doing the company was not guilty of a trespass, for the reason that by the judgment of the court, and the filing of the bond, the right to enter was given by the statute. Sec. 13, Chap. 47 Starr & C. Ill. Stats.; Johnson v. J. & C. R. R. Co., 23 Ill. 202. Having thus entered and' exercised acts of ownership, after having filed the bond to authorize such entry, the affirmance of the judgment by the Supreme Court vested the right of way in the company. The liability of the company on its bond then resulted. That liability was for the amount of the judgment with interest and costs. Cook v. South Park Commissioners, 61 Ill. 115; I. & St. L. R. R. Co. v. McClintock, 68 Ill. 296 ; St. L. & S. E. R. W. Co. v. Teters, 68 Ill. 144. A special plea was filed, averring the defendant had not taken possession and kept possession of said right of way as alleged in the declaration, and was not in possession when this suit was instituted, to which replication was filed. By filing the bond and entering into possession, which was shown by the evidence, no action against the company as a trespasser could be maintained. The evidence clearly showed the entry into possession, and the right of recovery then resulted, and there was no evidence to show an abandonment of the right of way' on the part of the company. It is insisted the damages are excessive. • The motion for new trial assigns special causes for new trial, and the question of amount of damages is not made in the motion. As that cause is not made in the motion it must be held as waived. O. O. & F. R. V. R. Co. v. McMath, 91 Ill. 104.

Hot being made in the Circuit Court, the question can not for the first time be raised here. Jones v. Jones, 71 Ill. 562; Penna. Co. v. Cordon, 101 Ill. 109; P., Ft. W. & C. R. R. Co. v. Reich, 101 Ill. 159.

The first instruction asked by the appellants, that if the railroad company had failed to take and keep possession of the right of way as condemned, and was not in actual possession of the right of way on the day the suit was instituted, then only nominal damages could be found, and the second, if the jury believe the railroad company had, before the institution of this suit, abandoned the possession of the land in dispute, then they are only liable for nominal damages, were properly refused. There was no evidence on which to base the second, and even had there been evidence on which to base it, a temporary abandonment of possession would not defeat the right of recovery. Nor is it the law that only nominal damages are recoverable if there had been abandonment; for the entry hot being a trespass, the right of entry being given by reason of filing the bond, the obligors would be liable to the extent of damages sustained by plowing the land and cutting trees thereon, and loss of use and such other damages as might be shown by the evidence. Finding no error in the record, the judgment is affirmed.

Judgment affirmed.


text:
    Centralia and Chester Railroad Company v. Maria J. Brake et al.

      Railroads—Construction—Right of Way—Condemnation—Damages— Appeal Bond,—Immaterial Issue—Repleader.

    1. In an action brought against a railroad company on an appeal bond given by it in condemnation proceedings, this court directs the award of- a repleader, for the reason that defendant’s special plea, on which issue was joined, made an immaterial issue, and for the further reason that it does not appear that the bond upon which suit is brought was offered in evidence in the trial court.
    2. A verdict can not aid an immaterial issue.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Washington County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. W. S. Forman and Daniel Hay, for appellants.

      Messrs. J. A. Watts and W. Henry Moore, for appellees.
   Phillips, J.

The Centralia & Chester R. R. Co. instituted proceedings for condemnation of right of way over lands of appellees, under Chap. 47, Starr & C. Ill. Stats., and judgment entered. The railroad company prosecuted an appeal to the Supreme Court and filed its appeal bond. The judgment was affirmed. This is an action on the appeal bond. The appellees, by leave of court, amended their declaration and ade^ed an averment that the railroad company, after filing the appeal bond against the protests of plaintiff, entered into possession of the right of way, etc: To that averment, which was an unnecessary one, the defendants filed a special plea denying that the railroad company had entered and taken possession and remained in possession, etc., and replication was filed. There was also a plea of non est fa'otum. The special plea on which issue was taken made an immaterial issue. A verdict can not help an immaterial issue. Tidd’s Prac. 921.

Further, we have looked into the record and can not find the appeal bond sued on was offered in evidence. We must, therefore, reverse and remand this cause, with directions to the court to award a repleader.

Reversed and remanded vñth directions.