text:
    The Wight Fire Proofing Company v. Peter Roczekai, for use, etc.

      Personal Injuries—Negligence—Question for Jury.

    1. It is the province of the jury to draw inferences from the facts in evidence; and if the evidence tends to support the theory of the plaintiff, whether it is sufficient is a question for the jury.
    2. It is proper to strike out part of an abstract proposition contained in an instruction where what remains does not tend to mislead.
    3. In an action to recover damages for a personal injury alleged to have been caused by the negligence of tlie servants of defendants who were working on the same building, this court sustains a judgment for $2,000 for the plaintiff.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John F. Altgeld, Judge, presiding.
    Mr. Wm. Eliot Furness, for appellant.
    Ho appearance for appellee.
   Moran, J.

This was an action by appellee to recover damages for an injury which he sustained through the alleged negligence of the servants of appellant. There was a trial by the jury, a verdict in favor of appellee, judgment thereon, and the case is brought to this court by appeal.

It is admitted by the counsel for appellant that appellee was himself in the exercise of ordinary care at the time he received the injury, and that his injuries are severe and permanent in character and the verdict not excessive; but counsel strenuously contends that there is no evidence in the record on which a finding that appellant’s servants were guilty of any negligence which contributed to the accident which caused appellee’s injury, can be based. Appellee was engaged in doing some work for the mason contractor on one of the upper floors of the Phoenix Insurance Building, and over him on .the frame work of the roof the servants of appellant were at work preparing to lay fire-proof arches between the girders which form the frame-work of the roof. The girders of the roof, which had been put in place by a contractor who had done the iron work on this building, ran north and south, and when appellant’s servants went upon the frame work of the roof on the morning of the accident they found a loose girder about seven or eight feet long which was no part of the roof, and which was resting east and west upon the north and south girders. The roof girders were some six or seven feet apart and the morning was frosty and the iron slippery. Appellant’s servants began to put up a platform between the girders for the bricklayers who were to put in the tile, and the foreman of the appellant was standing on the girders hauling up a timber cross-piece from the floor below by means of a rope. This work was being done within some three feet of the loose girder, and the foreman in stepping around upon the roof girders a few moments before he began to haul up the cross-piece had stepped upon the loose one. While he was hauling up the timber cross-piece the loose girder dropped between the roof girders to the floor below and struck appellee and inflicted upon him the injury in question. There was no evidence that the loose girder was touched by any of the appellant’s servants at the moment that it fell, and it was in evidence that they had' nothing to do with placing it where it lay.

The court overruled appellant’s motion to exclude the evidence from the jury and the action of the court in that regard is the main ground of error urged.

We do not think that action of the court furnishes a ground of error. The court can not say, as a matter of law, that from the facts in evidence no inference of negligence could be drawn against appellant. Whether or not working in the manner they did, in such close proximity to the loose girder after they knew it was loose, was negligence, was a proper question for the jury, and we can not say that the evidence does not furnish a basis for the inference they have drawn. Where inferences are to be drawn from facts in evidence it is the province of the jury to draw them, and where the evidence tends to support the theory of the plaintiff, whether it is sufficient to establish that theory must be left to the jury to determine. Rice v. Illinois Cent. R. R. Co., 22 Ill. App. 649, and cases there cited.

We have examined the modification of one of appellant’s instructions which is complained of, and we are of opinion that the words stricken out by the court did not materially change the proposition as asked. The instruction as given is correct and it might have been given as asked, but the proposition is abstract, and the striking out of a portion of such a proposition where the remainder of the instruction does not tend to mislead can not be assigned for error. International Bank v. Jones, 20 Ill. App. 128.

We are of opinion that there is no error in the record and the judgment of the Superior Court must therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    Merrimac Paper Company v. Illinois Trust and Savings Bank, Trustee, etc., et al.

      Replevin—Sa les—Agency—Broker—Clerk—Discretion—Mistake.

    1. Where judgment or discretion is reposed in an agent who, in dealing with a third person, makes a mistake in judgment, the principal is bound.
    2. Where an agent has full authority to make a sale of goods, it is unimportant in whose name they have been stored.

      [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Charles W. Needham, for appellant.
    Spaulding was not an agent of the company in any sense; he was a broker; if he was the agent of any one, he was the agent of the purchaser. Lycoming F. Ins. Co. v. Ruben, 79 Ill. 402; B. F. Ins. Co. v. Weary, 4 Ill. App. 74; Kings F. Ins. Co. v. Swigert, 11 Ill. App. 590.
    The course of business between these parties had been uniform and unbroken. The broker submitting the order, if acceptable to ¡the company, he was notified of their acceptance, and he in turn notified his purchaser. From that time on the transaction was wholly between the company and the buyer. The company could not be divested of its property except by its own act.
    It is a universal and fundamental principle of the law of personal property, that no man can be divested of it without his own consent. See Jennings v. Gage, 13 Ill. 611, and cases cited. The owner may place his property in the custody of another with power of sale, and the consent of the agent becomes the consent of the owner; but in such cases the power of sale must be unc'onditional, or it must affirmative’y appear that the condition has been met. It could not be claimed, for example, that, if ;an owner authorize a person to sell his horse provided the person can get $200 for him, that this will empower the person to sell and dispose of the horse for $100; and, if a party claim that he has purchased the horse for $100, and knew the horse belonged to the owner, and that the party in possession of it was acting merely for the owner, he can not hold the property as against the owner, for it is also a familiar rule that a party dealing with a special agent must know the extent of his power. See Peabody v. Hoard, 46 Ill. 242; Baxter v. Lamont, 60 Ill. 237; Taylor v. C. & N. W. R. R. Co., 74 Ill. 86.
    Condition as to price is no more important than a condition as to payment, as for example, that it shall be for cash; nor are these conditions more important in case of a sale on credit than that the purchaser shall give secured note or shall him self be of “ unquestioned credit.”
    These are all conditions which the owner has the right to impose, conditions which a careful owner will impose before relinquishing his right to his property; and property which has been obtained without complying with the conditions, may be recovered back by the owner on the ground that no title passed to the purchaser. There is a clear distinction between a contract of sale and a sale. Thus it has been held, if goods are contracted to a party who has, in part, performed his part of the contract, but who is to secure an indorser upon his note for the balance, he has no right to possession until the contract is consummated; and if, under such circumstances, he obtained possession of them without the consent of the owner, the owner may recover the possession without a rescission of the contract. Jennings v. Gage, 13 Ill. 611.
    Messrs. Howard Henderson and Edward W. Russell, for appellees.
   Moran, J.

Appellant was manufacturing paper in Massa clmsetts and shipped a certain lot of paper to Chicago to be delivered by a broker named Spaulding, to persons who had ordered it. Those persons refused to take the paper and Spaulding stored it in a warehouse in his own name. After it was so stored Spaulding went t.o Boston, and while there, his clerk in Chicago communicated to him an offer of one Beers to purchase the paper at seven cents per pound on time, he to give his notes for the amount at the purchase price, due in four and six months.

Spaulding telephoned fyom Boston to the paper company at Lawrence, Mass., stating the offer which had been communicated by his clerk, and the agent of the company replied that the pirice was satisfactory and to make the sale if the party was of first-class credit. Thereupon Spaulding directed his clerk to make the sale if Beers was responsible, and after the clerk had made inquiries of Beers with reference to his business and property he concluded he was responsible, and transferred the warehouse receipts for the paper to him, and received his notes in accordance with the offer and forwarded them to the paper company. Appellant then instituted some inquiries with reference to Beers, which resulted in satisfying the paper company that he was not in first-class credit and they brought this action in replevin to recover the paper which still remained in the warehouse.

The finding and judgment of the court below was for the defendant, and the plaintiff brings the record to this court by appeal, and insists that Spaulding had no authority to sell except in strict conformity with the conditions prescribed by the company, and that as Beers was not in first-class credit, the title to the paper did not pass by the transaction between him and Spaulding’s clerk.

Whether Beers was in good or first-class credit was a matter that appellant left to be determined by its agent. It is very plain from the circumstances that it was expected that the discretion with reference to Beers’ financial standing would be exercised for Spaulding by his clerk in Chicago, for appellant’s agent knew that Spaulding was in Boston, and Spaulding told him when he communicated the offer received from his clerk, that he knew nothing as to Beers’ standing. There is no pretense that there was any fraud on the part of Beers or of the clerk. The latter exercised his honest judgment. If Spaulding had been in Chicago and without any fraud reached the same conclusion reached by the clerk, it is, in our opinion, very clear that the company would be bound by the transaction, and that the title would pass.

The same result must, under the circumstances of this case, follow the exercise of judgment on the part of the clerk, for that the question of Beers’ financial standing should be determined for Spaulding by his representative in Chicago, must be taken to have been in the contemplation of the parties. Where judgment or discretion is reposed in an agent and he, in dealing with a third party, does so on a mistaken j udgment, no fraud intervening, the principal will be bound.

We can not perceive that the fact that the paper company did not know the paper was stored in Spaulding’s name, has any bearing on the case. The authority to sell and deliver the goods was full if Beers should be in good credit, and it therefore makes no difference in whose name the paper was stored.

We think the finding of the Superior Court was right, and the judgment will therefore be affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    The People, for use, etc., v. John C. McCoy.

      Practice of Medicine—Certificate—Statutory Penalty—Former Adjucli. cation.

    In an action to recover the statutory penalty for practicing medicine without a certificate, it is held: That there is no practical distinction between the charge involved in a former case against the defendant, and that here in question; and that the order revoking the certificate of defendant is invalid.
    [Opinion filed February 13, 1889.]
    Appeal from the Criminal Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Messrs. J. M. Hamilton and Charles C. Gilbert, Jr., for appellants.
    In this case the question of service of notice is entirely eliminated, and it stands as proven that notice was twice served upon McCoy to appear before the board. The board, therefore, had jurisdiction to examine into the case and revoke the certificate, if the charges were found to be true. This is established by the decision of the Supreme Court. In the case of Williams v. The People, the court say: “It may be conceded that under the 10th section of the act of 1877, to regulate the practice of medicine in this State, the State Board of Health had power to revoke certificates issued to individuals to practice medicine for the same reasons it might refuse to issue such certificates, viz., for unprofessional or dishonorable conduct.”
    The Supreme Court say, in their opinion in the former case, that this charge, if proven, does amount to unprofessional and dishonorable conduct. How, let us examine and see from this record whether the board did in fact, at its Springfield meeting, investigate and determine the charge against McCoy, as contained in the Alton notice, that “you make and publish statements and promises with reference to the treatment and cure of the sick and afflicted, which are calculated to deceive and defraud the public.”
    The proceedings of the hoard at their meeting at Springfield, May 21, 1885, are shown by the recorded minutes of the board. These minutes show that “ The case of Dr. J. Cresap McCoy, of Ho. 1516 Lucas Place, St. Louis, of Belleville, Alton, and elsewhere, in the State, was taken up for consideration.”
    The minutes further show-that there were submitted to the board certain of McCoy’s advertisements printed in the News-Democrat of Belleville, Ill., in St. Louis and Alton papers, and a copy of a twenty-four column issue of the St. Louis Wasp, and that these advertisements were “ adjudged to contain claims with regard to the treatment of the sick and afflicted, which were fraudulent.” How, if that was not an investigation and positive decision by the board upon the charge as specified in the Alton notice, that “ you make and publish statements and promises with reference to the treatment and cure of the sick and afflicted, which are calculated to deceive and defraud the public,” we utterly fail to understand the meaning of the English language employed. Then the record shows that the board, after their finding upon the facts, proceeded to revoke McCoy’s certificate for unprofessional and dishonorable conduct. The minutes of the board in this record show that it proceeded with as great exactness and regularity to the investigation of the charge against McCoy as would a Criminal Court, and that the board, from the evidence, adjudged that the claims and representations in his publications were false and fraudulent. If they were false and fraudulent, and no one but the Board of Health has a right to determine that question, then the Supreme Court has said in their opinion in the former case, that that would be conclusive evidence of “ unprofessional and dishonorable conduct.”
    Mr. William Brown, for appellee.
    The doctrine of res adjudícala embraces not only what has actually been determined in the former suit, but also extends to any other matter properly involved and which might have been raised and determined in it. Bennett v. Mining Co., 119 Ill. 14.
    A former adjudication of the matter in controversy is conclusive between parties in a subsequent proceeding upon the same matter, not only as to the matters actually determined, but as to every other thing -then within the knowledge of the complainant which might have been set up as ground of relief. Hamilton v. Quimby, 46 Ill. 90.
    The true test by which the question whether the plea is a bar in any particular case may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first. Campbell v. People, 109 Ill. 572.
    When a specific question lias been adjudicated in a former suit, its determination in the former suit will be conclusive upon the parties in the latter suit without regard to whether-the cause, of action is the same in both suits or not. Such estoppel to relitigate the same question is equally available to the plaintiff as to the defendant. Tully v. Bridges, 105 Ill. 336.
    In regard to former adjudication, no distinction lies between felonies and misdemeanors,' as the declaration in our bill of rights, that no person shall twice be put in jeopardy for the same offense, is sufficiently comprehensive to include any violation of the criminal law of the State, the word offense applying alike to crimes of whatever grade. Logg v. People, 8 Ill. App. 99.
    To be a bar, the offense charged in one indictment must agree in law and in fact with some offense of which the accused might have been convicted upon a prosecution upon another indictment, and in such prosecution there must have been an acquittal or conviction. Freeland v. People, 16 Ill. 380.
    The foregoing authorities, it seems to us, make it plain that the proceeding here is barred by the former case. It makes no difference that counsel did not offer the same evidence the first time. He had the right to have offered it and if he did not elect to offer it and the defendant was acquitted, it relieved him as effectually from any charge which might have been covered by the evidence as if it had been offered. All that the people could have done and proven to have secured his conviction, is the same as if it had been done. Of this the foregoing authorities seem to us to be conclusive.
   Per Curiam.

The judgment in this case must be affirmed. "We can see no practical distinction between the charge against defendant contained in the notice which is discussed by the Supreme Court in the case of The People v. McCoy, 125 Ill. 297, and that here in question. The charge stated in that case was “ making statements and promises calculated to deceive and defraud the public.” In the notice proved here the charge is “ that you make claims and promises * *. * which are false and fraudulent.”

Counsel is mistaken in the statement in his brief that the charge in this notice is “ that you make and publish statements.” The notice from which he quotes is of a trial to be held in Chicago and not at Springfield.

The record of the judgment of the State Board of Health in evidence in this case and the evidence introduced before said board are identical with the record and evidence in the one decided by the Supreme Court above referred to, and while it is true that there was not sufficient proof of service of the notice in that case, and the service in this case is well proven, we yet feel bound by the intimations given in the opinion of the Supreme Court, that the order of the board could not be sustained, even if there bad been service of the notice.

Judgment affirmed.


author: Garnett, P. J.

text:
    Chicago Forge and Bolt Company v. Alfred Major.

      Nuisances—Machine Shops—Trip Hammers—Damages—Limitations— Instructions.

    1. In an action to recover damages to plaintiff’s premises caused by the operation of certain trip hammers by the defendant in his shop situated near, it is held: That, in the absence of evidence, it will be presumed the shop as operated prior to its removal and enlargement in 1886, occasioned no injury; that the action is not barred by the statute of limitations even as to that part of the works operated prior to the removal; and that there was no error in the modification and refusal of instructions.
    2. An instruction for the appellee to the same effect as one asked by the appellant can not be assigned by the latter as error.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Oourt of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    This is an action on the case brought by appellee against appellant to recover damages alleged to have been caused to appellee’s premises by the operation of appellant’s bridge works. In 1871 the American Bridge Company erected its works, including two steam trip hammers, on its tract of land of about eleven acres near the city of Chicago. In 1881 appellee purchased the premises which are the subject of this action, and afterward erected a dwelling house thereon. From 1871 to about the year 1885, the works were operated where they were first built. Appellant acquired title to the works in 1885, moved the hammer shop to another spot on the eleven-acre tract, but nearer appellee’s house, and put up six steam trip hammers (including the two used in the first shop) which have been operated since November 1, 1886. The first count of the declaration avers that gas, smoke, noxious smells, vapor, steam and hot water come from defendant’s works by reason of the operation thereof, and pervade the premises of plaintiff, and the air over and around the same, making it unhealthy and destructive to the clothing and property of plaintiff and detrimental to his health, and that by reason of the jar and vibration caused by the operation of the trip hammers the plaintiff’s buildings and premises are damaged and rendered insecure, and the plaintiff thereby has suffered great personal and physical annoyance, injury and discomfort.
    The second count complains of injury to plaintiff’s premises caused by the noxious stenches, gas, etc., and the jar and shock of the hammers. The third count avers that by reason of the dust, cinders and hot water thrown by defendant upon plaintiff’s close, the plaintiff is hindered from the use, benefit and enjoyment thereof in so large and ample a manner as he otherwise might have enjoyed the same, and that the renting and selling values of the same have been greatly diminished thereby.
    Defendant pleaded the general issue and the five year-statute of limitations. Verdict for plaintiff for $450. Motion for new trial overruled and judgment on verdict. Defendant appeals.
    Messrs. Gardner, McFadon & Gardner, for appellant.
    Messrs. Edward Maher and John C. Simonds, for appellee.
   Garnett, P. J.

The statute of limitations might have been successfully interposed, if the suit had been based on injuries, alleged to have arisen from the hammer shop which was erected in 1871. No damages are sought to be recovered on that account, nor does the record show clearly that the shop as originally built and operated, injuriously affected the plaintiff in person or property. In the absence of evidence it would be presumed no injury was occasioned thereby. The removal of the shop, in 1886, to a point almost contiguous to appellant’s residence, and the enlargement of its machinery so as to increase the vibratory action and other offensive features, was alleged to be a fresh and distinct act of appellant, which was not even in part protected by the statute of limitations.

The contrary theory, that the statute was a bar as to so much of the injury as was caused by that part of the works operated by the American Bridge Company for more than five years before the commencement' of this suit, was rightly rejected by the trial court. The case presented was not the magnifying of an existing nuisance, but the act complained of is the original creation of a nuisance disconnected from all preceding acts of the defendant. This is the true view of the case unless the effect upon plaintiff’s property, of the operation of the hammer shop as originally erected, was precisely the same as the operation of the same hammer in the new shop. Whether the effect was the same, was a question of fact for the jury, which was not submitted to them by the instruction requested by defendant on this branch of the case, and for that reason the instruction was properly refused.

The ninth instruction as asked by defendant was as follows:

“ The jury are instructed that in this case the measure of damages to which the plaintiff is entitled can not exceed the depreciation, if any, in the market value of his property caused by the operation of defendant’s works. If the jury believe from the evidence that the plaintiff’s .property would sell for the same amount as before the operation of defendant’s works, independent of a rise in similar property, then the verdict must be for the defendant.”

The trial court refused to give this instruction in that form, but gave the following as a substitute therefor:

“ The jury are instructed that the plaintiff’s claim of damages is made on the ground that the operation of defendant’s works has depreciated the selling value of his property. If the jury believe from the evidence -that the operation of defendant’s works' has not depreciated or impaired the value of the plaintiff’s property.or its enjoyment as alleged by the plaintiff in his said declaration, then the verdict must be for the defendant.”

Appellant complains that this charge pérmitted the jury to find a verdict for plaintiff, if they believed defendant’s works diminished plaintiff’s enjoyment of his property, even though they increased its value. A number of authorities are cited in support of the proposition that as appellee has elected to treat the injury complained of as permanent, the action is of the nature of a condemnation suit, and his recovery must be limited to the depreciation in value of his property, and can not include damages for personal annoyance, discomfort or interference with his enjoyment thereof. However that may be, appellant has barred itself of any advantage it might otherwise have taken of this action of the court, by requesting another instruction involving the same theory of damages to the enjoyment of the premises. Having encouraged the court to adopt that view of the case, the appellant can not complain of the result. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358; Willard v. Swanson, 22 Ill. App. 424

The following instruction, numbered ten, asked by defendant, was refused by the court:

.“The jury are instructed that under the declaration in this case, the plaintiff’s claim of damages is made on the ground that the operation of defendant’s works has depreciated the selling value of his property. If the jury believe from the evidence that since the operation of defendant’s works the selling value of the plaintiff’s property is higher than before, and that the operation of defendant’s works has contributed to that increase of value in the plaintiff’s property by reason of its nearness to the works, then the verdict must be for the defendant.”

At the trial, evidence was given tending to show serious damage was caused by the operation of defendant’s works to the plastering and paint on plaintiff’s house. According to the terms of the instruction, any contribution, however small, by the operation of defendant’s works, to the supposed increase in value of plaintiff’s premises, should be considered by the jury as an offset to any damages, however large, caused by the works to plaintiff’s house. The unfairness of the proposition is apparent. There was no error in the refusal of that instruction.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.


author: Gary, J.

text:
    John P. Zipp v. Uhland Hain No. 16 and Concordia Hain No. 15, V. A. O. D.

      Practice—Amusement—Parties — Instructions — Contracts — Sunday— Evidence.

    1. The Circuit Court, upon appeal from a justice of the peace, may allow the addition of a co-plaintifi by way of amendment.
    2. In the case presented, instructions that a contract for the renting of stands at a picnic was void because the picnic was on Sunday, were properly refused, there being no evidence to show that the picnic was in this State.
    [Opinion filed February 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin' S. Williamson, Judge, presiding.
    Mr. August Marx, for appellant.
    Messrs. Hendricks & Robinson, for appellees.
   Gary, J.

.This suit was commenced before a justice of the peace. On appeal to the Circuit Court, that court gave leave to amend by adding a co-plaintiff. This was warranted by the practice act and McDowell v. Town, 90 Ill. 859. On the conflicting evidence the verdict of the jury is final, and the instructions asked by the defendant, that the contract for the renting of stands at a picnic was void because the picnic was, on Sunday, come with a poor grace from one who does not intend to obey the law, and are not based upon any evidence that the picnic was in this State.

For aught that this record shows it may have been in an adjoining State, in which neither the Circuit nor this court has any judicial knowledge that Sunday is regarded.

Judgment affirmed.


text:
    Emily H. Pratt et al. v. John A. J. Kendig et al.

      Jurisdiefion—Freehold.

    Where both parties to a cause in equity claim the title in fee simple to real estate in controversy, this court is without jurisdiction on appeal, a freehold being involved.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Messrs. E. F. Allen and E. K. Smith, for appellants.
    Mr. H. S. Monroe, for appellees.
   Gary, J.

There was an original bill by appellees, and a cross-bill by appellants, by which, and the answer thereto, the parties respectively claimed the title in fee to the premises in controversy.

The appellees also asked an injunction against the prosecution of a forcible entry suit, by the appellant, Emily. The preliminary question on this record is: Is a freehold involved? for if it is, this court has no jurisdiction of this appeal. Bremer v. Calumet, etc., Co., 123 Ill. 104.

First, as to enjoining the forcible entry suit. The ground upon which it is done is that the fee is in the appellees; that she, by fraud, obtained the prior possession, upon which her right to recover in that suit is based, from a tenant of the appellees then in possession, and that in that suit the appellees could not make a successful defense.

Without determining that the appellees had the title they asserted, and which the appellants denied, the court could not give the relief prayed. If the court had found the title to be in the appellants, and had found that she had, by fraud, obtained possession from a tenant of the appellees, the rule of law that estops a tenant and those coming in under him, to deny the title of the landlord, would have been no ground for relief in equity, however effectual it might be in ejectment. A bill in equity will not lie merely to enforce an estoppel, without equity. Wadhams v. Gay, 73 Ill. 415-437.

In an action of trespass qu. cl., if the defendant pleads liberum tenernentum, the freehold is involved, and why ? Because it must be decided, if that issue is tried, whether the defendant has the title he claims; and therefore this court has no jurisdiction of an appeal in such a case. Piper v. Connelly, 108 Ill. 646.

The ultimate ground of the relief granted is, that the appellees have the title that they assert, which the appellants deny, and vice versa, and therefore their act of forcibly regaining the possession she fraudulently took from them is not so reprehensible as to debar them from the aid of the court in keeping what is theirs and not hers. And upon the other ground of removing a cloud upon the title of the appellees, each side asserts title in themselves, and denies it in the other. This brings the case within the decision in Bremer v. Canal, etc., 123 Ill. 104.

If both parties claim the fee, which .one of them is right' must be a question involving a freehold. The claim of one of them must be without foundation, and the greater or less color for the wrongful claim can only be found after investigation.

The power to investigate is jurisdictional, which must precede investigation. If it were held that a freehold was involved only where both parties’ claims were well founded, and that the court had jurisdiction until it had ascertained that condition to exist, no case would ever be without the appellate jurisdiction of this court because it involved a freehold, for no such case could ever arise.

The appeal must be dismissed because this court has no jurisdiction; that appertains only to the Supreme Court.

Appeal dismissed.


author: Moran, P. J.

text:
    The Rosencranz & Weber Company et al. v. Seth F. Hanchett et al.

      Bailments—Delivery of Goods to be Sold—Fraud—Evidence—Foreclosure.

    1. A delivery of goods to a retail dealer to be sold by him for cash, at not less than the invoice price, he to retain as commissions what he can get above that price, and to return the goods or the money received for them when called upon so to do, does not amount to a sale, even as to creditors of such dealer.
    2. In the case presented, the evidence is wholly insufficient to establish that the bailment was fraudulent in fact. ■
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Julius S. Gkinnell, Judge, presiding.
    Appellee Hanchett, as sheriff, levied an execution placed in his hands by the appellees, Bryant & Sproelmle, upon certain jewelry which was found in the possession of Shute, the defendant in the execution, in his jewelry store in South Chicago.
    Appellants replevied the goods, claiming them as their goods which they had placed in Shnte’s hands to sell for them as their agent. The trial was before the court without a jury, and the finding was against appellants. There was no conflict of evidence as to what were the terms under which appellants furnished the goods to Shute.

      The witnesses Weber and Shute stated the arrangement as follows:
    Weber: “The arrangement with Shute was this: I told Shute I would bring him down a lot of goods to equal or exceed $1,000, and I was to have the privilege of coming down whenever I saw fit and check up that stock of goods, and under no circumstances must any of the goods leave the store unless he got the money for them, and that either the goods or the money was to be there at all times. I made a list of the goods taken there, possibly on our regular bill-heads, but generally on memorandum bill-heads, with the prices fixed. He was to sell the goods at whatever he saw fit above the price billed to him, the wholesale price, and the proceeds of the sale were to come to us—that is, the invoice price. He was selling for his own benefit, so far as profit was concerned. Shute did not sell on credit with our consent. We told him he should not. As a general thing, he spoke to me when he sold on credit.”
    Shute: “Plaintiff agreed to leave some goods with me to sell. The goods remained there till sold. I accounted to it for the sale. Plaintiff first gave me about $1,000 worth under such conditions. Weber, I think, largely selected the goods and brought them down; afterward he came and checked over such as were there. If any were not there, I paid him for them. I had instructions from plaintiff about selling the goods. I was to sell for cash, and I sold for cash. I was carrying on that business for our mutual benefit. So far as these goods were concerned, I was not carrying on business on my own hook. I had all the profits of the business above the wholesale price of the goods, like any other retail dealer. Plaintiff did not pay any part of my expenses. I kept a bank account, and deposited part of my cash receipts. I kept no separate account of plaintiff’s money from my own. When I got goods myself plaintiff sometimes gave me a memorandum bill, and sometimes billed to me as agent. I did not change my sign.”
    Mr. D. Blackman, for appellant.

      Messrs. McClellan, Cummins & Moulton, for appellees.
    Where the owner of personal property delivers it to another with the understanding on the part of such other person that he may become the owner of it, or may sell and convey the title to it by paying the vendor a specified price, the transaction is a conditional sale, and the property, while in the possession of the person to whom it was so delivered, is liable to be taken by legal process of his creditors who have no notice of the real owner’s rights. Van Duzer v. Allen, 90 Ill. 499, p. 502 ; Mich. Central R. R. v. Phillips, 60 Ill. 190; Brundage v. Camp, 21 Ill. 330; Murch v. Wright, 46 Ill. 487 ; McCormack v. Hadden, 37 Ill. 370 ; Hervey v. R. I. Locomotive Works, 93 U. S. 671; Hurford v. Daniels, 102 U. S. 243 ; Marvin Safe Co. v. Norton, 7 Atlantic Rep. p. 421.
    A conditional sale of goods to be disposed of at retail by the vendee is fraudulent and void as to creditors, even in jurisdictions where conditional sales generally are held valid as to creditors without notice. Winchester Wagon Works v. Carman, 9 N. E. (Ind.) Rep. 709.
    Where the owner of goods delivers them to a third party for his selection or approval, with a view to such third party purchasing the same, they become the property of such third party as to his creditors without notice by his retaining possession of the same for an indefinite time, showing an intention to keep them in which the plaintiff acquiesces. Benjamin on Sales, Edition 1883, pp. 791-796; Elphick v. Barnes, 5 C. P. D. p. 326 ; Moss v. Sweet, 16 Q. B. 495 ; Humphreys v. Caravallo, 16 East, 45; Towle v. White, 21 Weekly Rep. 466; S. C. L. R., 6 Ch. App. 402, 403.
   Moran, P. J.

There is no evidence of actual fraud in this case, and the only question is, therefore, whether the arrangement testified to by the witnesses Weber and Shute was fraudulent in law as being a clothing of Shute with the ostensible ownership of the goods while the company attempted to retain the real ownership in them. If it was such, then the title to the goods passed to Shute, so as to be liable to levy and sale under an execution against- him. So if the arrangement was in fact but a scheme or artifice to sell the goods to Shute, under the form of a consignment or bailment, it would, as to his creditors, be held that the title was in him. But we are unable to find in this arrangement any evidence that it was anything else than what it purported to be, a delivery of goods by appellants to Shute, to be sold by him for cash at not less than the invoice price, he to have anything he could get over the invoice price for his commissions.

Shute contracted no indebtedness for the goods delivered to him, and was only to pay for such articles as he might sell. The course of business was such as, in our opinion, to repel the conclusion that the agreement was merely colorable. There was a regular system of checking up of the goods on hand and settling for such as had been sold, and there was no security taken that those not sold should ever be paid for. The case is clearly distinguishable from what is known as conditional sale, and also from such cases as Bastress v. Chickering, 18 Ill. App. 198. In that case promissory notes were given for the pianos which were delivered under the contract, and there were many other features of the arrangement which led to the conclusion that the consignment was but a device or contrivance to cover a sale and retain a vendor’s lien upon the goods.

Here the transaction is in form and purpose a delivery of goods to be sold on commission, which commission is contingent on the amount for which they can be sold above the invoice price. It can not he pretended that the appellants had not the right to retake the goods which, at any visit to Shute’s, they found to be in his hands and unsold. He was to have their goods on hand for them at all times or the money for such as he had sold. Under such an arrangement no interest in the goods passed to Shute. They were in his possession, it is true, but were at the risk of appellants, and if they had been destroyed by fire or otherwise, without Shute’s fault, the loss would clearly have been appellant’s.

In McCullough v. Porter, 4 Watts & S., 177, goods were placed in the hands of the execution debtor, who, at the time, was insolvent, to be sold by him at not less than the invoice prices of the said goods, the invoice price of the goods, when the same were sold, to be paid over by him, and all for which said goods should sell for above invoice price to be retained by him for the support of himself and family; the goods remaining on hand or unsold to be returned by him, and for the goods so returned he was to have credit.

The goods were levied on and sold under the execution/'and trespass brought to recover the value by the parties who delivered the goods under such agreement to the execution debtor. Chief Justice Gibson delivered the opinion of the court on the appeal, and, construing the contract, said : “ The plaintiffs simply agreed to consign goods to an insolvent friend to be sold on their account for not less than the invoice prices; and the proceeds to the value of those prices were to be remitted.to them on the goods returned. Thus the excess of the sales over the invoiced prices was to be the amount of the commissions, and that it was to be contingent, is the only feature of the case which differs it from the ordinary consignment on commission.” The learned judge then goes on to show that if such an agreement is not a trick to cover an understanding inconsistent with its terms, which is a question of fact, it must be held, as a matter of legal construction, not to be a fraud in law, and in illustrating says: “Were I to put my horse into the custody of a friend to be sold for a designated sum, with permission to retain whatever he should get beyond it, it would not be suspected that I had ceased to own him in the meantime, or that my friend would not be bound to return him, even without a stipulation, should he have failed to obtain the prescribed price.” See also Thompson v. Pratt, 94 Pa. St. 275; Schloss v. Heilbronner, 27 Vt. 623.

As it was charged that the arrangement was fraudulent in fact, the evidence showing the pretended foreclosure of the chattel mortgage, and that the goods covered by the same were left in the possession of Shute so short a time before the arrangement attacked was made, was competent to be considered. But when considered, we are of opinion that it was wholly insufficient to establish that the bailment was fraudulent in fact.

The bailment did not cover/or purport to cover, any of the goods which were mortgaged, and the title to none of the goods which were covered by the mortgage is involved in the suit. The proof of the sham transaction with reference to the foreclosure is not enough to show that the bailment was a fraud in fact against the clear statements of the witnesses. The finding in that respect is, we think, clearly against the evidence. The judgment must therefore be reversed and the cause remanded.

Reversed and remanded.


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    Charles E. Bronte et al. v. John H. Leslie.

      Negotiable Instruments—Lex Loci—Note—Where Payable—Second Suit upon the Same Note.

    1. Where a promissory note fails to designate a place of payment the presumption is that it is payable at the place where made.
    2. It is also presumed that a note was made where dated and -that the parties contracted with reference to the law of that place.
    8. A judgment on the merits in favor of the defendant in an action on a promissory note by an assignee thereof, is a bar to a subsequent action by the payee.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Francis A. Riddle and John S. Stevens, for appellants.
    There was no evidence before the court as to the place where the note was executed except such as the instrument itself furnishes. It is dated “ Cincinnati, Ohio, August 29, 1883,” and is made payable there. Ho testimony was offered to show that it was made at a different place than where it bears date; and it appears by the evidence that at that time the makers were residents of that State. The law, therefore, presumes that it was made at the place it is dated, and that the parties contracted, when executing it, with reference to the laws of that State. Longee v. Washburne, 16 N. H. 134; Lennig v. Ralston, 23 Pa. St. 137; Hefflebowen v. Detrick, 27 W. V. 16.
    The Supreme Court of this State, in the case of Parks v. Brown, 16 Ill. 454, which was an action on an indorsed note, says, in speaking of the right of a maker to say whether the suit shall be in the name of the payee or the indorsee, the indorsement being erased: “It is not the privilege of the defendant to constitute himself the guardian of the plaintiff’s rights, as between assignor and assignee, or payee and holder. "* * * The defendant has a right to require that there shall be such a plaintiff as will make the recovery a bar to any other action by another for the same debt. When this is done, he is protected.”
    Grant, the assignee, answered every requirement of this rule, as plaintiff in the suit in Ohio, and the judgment there rendered must be a “ bar to any other action by another for the same debt.”
    It must be conceded that the judgment in the Court of Common Pleas would estop Grant; that as to him as the owner of the note when that judgment was rendered, the whole subject-matter of the action became res judicata. How, then, could Grant, with no property interest remaining in him in the note, with a judgment recorded which discharged the paper, pass it back to the payees and thereby re-invest them with every right they possessed on the day the note was executed? Manifestly, he was powerless to do anything of the kind.
    “ If a party, after a judgment against him, assigns his interest, his assignee will be bound; as it is conclusive against the assignor, it must be against the assignee, for the substitute can be in no better position than the principal.” Herman on Estoppel, etc., Vol. 1, Sec. 144.
    A judgment for the maker, in an action on a note in the name of the payee for the use of the holder, is a bar to a pcond suit by the assignee in his own name. Drake v. Perry, 8 Ills. 122.

      Levi v. McCraney, 1 Morris (Iowa), 124, is exactly in point with the case at bar. It was a suit of the payee of a note against the maker after a judgment had been rendered in favor of the latter, upon the merits,in a former suit by an assignee of the note. The court held the former judgment a bar to the second action. “If such were not the case,” says the court, “ there is hardly any limit to the extent to which a defendant might be unjustly harassed.”
    Messrs. Tenney, Driggs & Hawley, for appellees.
   Moran, J.

On the 29th of August, 1883, appellants executed their promissory note at Cincinnati, Ohio, whereby they jointly and severally promised to pay to George and John H. Leslie, or order, $3,000 six months after date. The consideration of the note was the sale to appellants of certain shares of stock of a mining company in Mexico known as The Santos Manufacturing and Mining Company. The note was transferred by indorsement and delivered to one William Grant, in the city of Chicago, and he, as the owner and holder of it, brought suit upon it after it matured, against the appellants as makers, in the Court of Common Pleas in Hamilton county, Ohio, in which county appellants resided. Appellants all appeared in said suit and answered that Grant did not receive the note before maturity, and set up as their defense, want of consideration, alleging, among other things, that the stock of The Santos Manufacturing and Mining Company which they received from the payees of the note was fraudulently represented by said payees to be of value, when, in fact, it was worthless. The allegations of the answer were traversed in proper form by Grant, and upon the issues as thus made up a trial was had upon the merits, which resulted in a verdict and judgment for the defendants.

Over a year after the rendition of said judgment, George and John H. Leslie instituted this suit upon the same note as payees and owners thereof. To the declaration, which contained a special count on the note and the common counts, appellants filed, with other pleas, a special plea setting up the above mentioned judgment in bar of the action, and to this plea appellees repliedmiZ tiel record. The case was submitted to the court without a jury, and the death of George Leslie having been suggested, the suit was ordered to proceed in the name of the surviving plaintiff. The case was tried upon the issue presented by the plea setting up the Ohio judgment, and after the evidence was all in, the court held the following proposition of law: And the court, finding that the note was made and assigned in the State of Illinois, and that at the time the note became due, and ever since hitherto, the makers thereof were residents of the State of Ohio, and not of the State of Illinois, held as a legal conclusion that a judgment in favor of the defendants upon the merits of the suit brought in the State of Ohio against them by the assignee, was no bar to the action by the payees, and therefore the plaintiff was entitled to recover.

There is no evidence in the record to support the finding that the note was executed in the State of Illinois. It was dated Cincinnati, Ohio,” and no place of payment being designated, it must be taken to be payable there. It is a presumption of law that an instrument is made at the place where dated, and that the parties contract with reference to the law of such place. Longee v. Washburne, 16 N. H. 134. We do not perceive that the finding in that regard, if supported by the evidence, could be material, and we must therefore treat the proposition as holding simply that the Ohio judgment against the assignee was not a bar to a subsequent suit on the note by the payees.

There seems to be a dearth of authorities on the question thus presented, and no case which we have been referred to presents any discussion of the principles which govern its decision. We are of opinion that this case is not to be distinguished in principle from that of Zimmerman v. Zimmerman, 15 Ill. 84. There a suit was brought by the second assignee of a note against the maker, and after hearing evidence, the justice of the peace, before whom the action was tried, rendered a judgment against the plaintiff for costs. Suit was afterward brought upon the note by the first assignee against the maker, and the transcript' of the judgment against the second assignee was offered in evidence, and it was shown that said suit was upon the same note. The Supreme Court held the first judgment a bar to the second action.

That a judgment in favor of the defendant, in an action upon a note by an assignee thereof, where the. merits were determined, is a bar to subsequent action on the note by the payee against the maker, was held by the Iowa Supreme Court in Levi v. McCraney, 1 Morris, 124, and by the Supreme Court of Kentucky in Soward v. Coppage, 9 S. W. Rep. 389. Following these authorities, we are compelled to conclude that the court erred in holding the proposition of law above set out.

The Ohio judgment in the suit brought by the assignee was a bar to this action • brought by the payee against the makers of the note.

For the error indicated, the judgment must be reversed.

Judgment reversed.


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    Aaron Gibbs v. Samuel A. French et al.

      Action of Debt on Penal Bond—Damages in Excess of Ad Damnum— Remittitur—Costs.

    In an action of debt on a penal bond, wherein the damages adjudged exceed the ad damnum, this court suggests that the decisions by the Supreme Court to the effect that this is error are based upon a mistake, the ad damnum having reference only to the damages sustained through failure to pay the penal sum mentioned in the bond. The plaintiffs having remitted the excess, in this case, the judgment is affirmed, costs being allowed to defendant up to, and including only, the entry of the remittitur.

    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P.Altgeld, Judge, presiding.

      Mr. Frederick C. Hale, for appellants.
    Messrs. French & May, for appellees.
   Gary, J.

The only error in this case, it being an action of debt on a penal bond, is that the damages adjudged exceed the ad damnum,. And this error is an artificial one, growing out of a mistake made in Fournier v. Faggott, 3 Scam. 347, and persistently adhered to ever since, that in actions on penal bonds the ad damnum must be large enough to cover the damages assessed.

The statute of 1845, which is the earliest to which I have access, was probably the same as the earlier one to which reference is made in 3 Scammon, and the only change made by the practice act of 1872 is by placing “shall” in lieu of “ may” in the second line of Sec. 20. In substance, this statute had been in force in England for a century and a half before the decision in 3 Scammon, and the practice had been uniform that the form of the judgment remained as before; that the plaintiff had no judgment for the damages assessed for breaches of the condition, but that execution was awarded for, and indorsed with a direction to levy only, the damages assessed for such breaches, with the costs. The whole proceedings are fully stated in notes to Gainsford v. Griffith, 1 Saund. 51, and Roberts v. Mariett, 2 Saund. 183. See also Smith v. Jansen, 8 Johns. 111. And the ad damnum at the end of the declaration had no reference to the damages for the breach of the condition, but only to those sustained by not paying the penal sum mentioned in the bond, and were, therefore, merely nominal. 2 Ch. Pl. (Seventh Lond. Ed.) 442 et seq. in notes; Selw. N. P. 554; People v. Hallett, 4 Cow. 67 and notes, Ed. 1883.

But this mistake has, by numerous decisions, become a part of the law of this State. Brown v. Smith, 24 Ill. 196. It only imposed upon the pleader the obligation to conform to it. If the appellee had not, in this case, remitted the excess, it would have deserved consideration whether this court should not have left to the Supreme Court the opportunity to rectify the mistake, but they having done so, the only course open is to affirm the judgment for $948.58, the sum laid in the ad damnum, the appellant to recover costs up to, and including only the entry of the remittitur. Snell v. Warner, 91 Ill. 472.

Judgment affirmed.


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    Samuel Flower v. Albert J. Brumbach.

      Sales—False Representations—Letters—Evidence—Undisclosed Intention—Former Adjudication.

    1. The rule that writings are not to be varied by parol evidence, though such evidence is competent to show the circumstances under which they were made, is especially applicable to letters upon which .the receiver is to act.
    2. Where one makes material representations, by him known to be false, he can not excuse himself by saying that he meant no harm.
    8. Upon a second appeal to this court, the matters decided on the first appeal are not open to review.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Moses & Newman, for appellant.
    Mr. John B. Skinner, for appellee.
   Gary, J.

This case is here for the second time. In 20 Ill. App. 219 it is reported, the parties being reversed. The questions then decided are not here open to review. The authorities for this rule up to the time that Ogle v. Turpin, 8 Ill. App. 453, was decided, are very fully cited by Bailey, J., in that case. Since then other cases to the same effect have followed. Cable v. Ellis, 120 Ill. 136; Mfg. Co. v. Wire F. Co., 119 Ill. 30; W., St. L. & P. v. Peterson, 115 Ill. 597.

If the principal question decided when the ease was here before were now to be decided I should not take any part, as the action of the Superior Court changing the form of the action involved in it, was before me. The case is this:

Before December 2-8, 1883, appellant gave to appellee’s agent an order for goods to the amount of $513.05. The appellee thereupon wrote from Beading, Pa., to the appellant in Chicago, under date of December 28, 1883, as follows :

“ Hr. Samuel Flower : I received an order from Hr. Feist for you, and I must say, for all I know of your standing, I think the order is rather large. I have sold you but small bills before this, and your payments have been very prompt. If you will be kind enough to make me a statement, if satisfactory, will send the goods ; but I must know something about your ability to pay. Please do not think it hard of me for being on my guard, as I have lost considerable money of late and must be more careful how I grant credit. Please let me hear from you. Tours respectfully,
“A. J. Brumbach.”

To which, December 31, 1883, the appellant replied:

“ Hr. A. J. Brumbach : Tour letter of the 28tli inst. at hand, and, in reply, will say that I am surprised to hear you ask me for a statement after dealing with you for the past few years. Although not having bought much in your line, and not being so exact in paying, I must let you know that I have not manufactured much, in fact, none at all. Have bought everything ready made and made a nice few dollars, enough to give me a good start in going into manufacturing; I intend taking another store next door to me, break through, and have a double store to give me plenty of room to cut and make up everything in the way of clothing myself. For instance, last year I sold $35,000. Text year I expect to sell more. The savings is twenty-five per cent, in getting up the goods yourself, as I have looked the matter thoroughly through and I am satisfied that if I sell only $40,000, it will be a net saving of $10,000 on manufacturing alone. As for reference, I could refer you to a good many of the large houses, but they are too many to mention, so I will just refer to one, Fleischer Brothers, in Philadelphia.' I bought $2,000, discounted ten days. Also other large houses in the city. My stock is just now worth $15,000, and we owe $1,000; comes due about March 1st. So, Mr. Brumbach, if everything is satisfactory, send the goods at once. Tours respectfully,
“ Samuel Flower,
“ 35 West Madison St.”

The appellee sent the goods to the appellant, relying wholly upon the statement in the appellant’s letter. The goods were not paid for, and there was evidence that at the time appellant wrote he was indebted to his mother and mother-in-law several thousand dollars for borrowed money, for which judgments by confession were entered before this suit was commenced, under which judgments and others his assets were all swept away.

Upon the last trial, when the- appellant was on the stand as witness, his counsel asked him: “In your letter you state, ‘I bought $2,000, discount ten days ; also other large houses in the city. My stock is now worth $15,000, and owe about $1,000; comes due about March 1st.’ Mow, in and about writing the phrase in this letter, ‘about $1,000; comes due about March 1st,’ what indebtedness did you have reference to ? ” and made the following offer:

“I offer to show by the witness that in writing in said letter ‘ I owe about $1,000; comes due about March 1st,’ the witness had reference to his merchandise indebtedness and not to his money indebtedness ; that he believed from the letter written to him by the plaintiff that he was not called upon to make a full and complete statement of his affairs, and therefore did not think it necessary to state in the letter the amount of his money indebtedness, because that was not then pressing him, and it did not hinder his ability to pay for his merchandise.”

His counsel also asked the following question : “Did you, in writing this letter, have in your mind an intention to mislead Brumbach ? ”

Objection being made by appellee, and sustained by the court, to these questions, the present inquiry is, if that was, error.

It is undoubtedly true that if the appellant’s intent in writing a letter could be the subject of parol evidence, he would be a competent witness to prove it. Miner v. Phillips, 42 Ill. 123; Wait, Fraud. Con., Secs. 205, 206; Stearns v. Gosselin, 58 Vt. 38.

The rule that writings are not to be varied by parol evidence, though such evidence is competent to show the circumstances under which they were made, so that the construction shall be what the parties intended, is too familiar to require the citation of text-books or cases, but its application to letters is so emphatic in Brant v. Gallup, 111 Ill. 487, that it is well to refer to the case. The rule applies with greater force to letters upon which the receiver is to act. If one makes representations, material, and by him known to be false, he can not excuse himself by saying he meant no harm. McBean v. Fox, 1 Ill. App. 177; Case v. Ayres, 65 Ill. 142.

The appellant might have told, as a witness, the whole story of his pecuniary condition. Mot going into details was an implied admission that the testimony against him upon that subject was true, and the natural inferences therefrom just. There is no error in the record.

Judgment affirmed.


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    George A. Lowry v. John Craig Hately.

      False Arrest—-Action for Damages—Trespass—Process as Protection— Probable Cause—When a Question of Law—Possession of Personal Property.

    1. In an action to recover damages for false arrest and maliciously and without probable cause suing out a ca. sa., it is held: That the burden is on the plaintiff to show malice and want of probable cause; that, without notice to the contrary, the defendant had the right to trust to, and act upon, appearances as to the quality and ownership of personal property in the possession of the plaintiff; and that, as the plaintiff did not show a want of probable cause, the court properly directed a verdict for the defendant.

      2. A belief founded upon circumstances sufficiently strong to warrant it, is probable cause.
    3. What is probable cause upon a state of facts assumed or proved, is a question of law.
    4. Where an injury to a person is occasioned by regular process of a court of competent jurisdiction, trespass can not be sustained.
    5. Possession of personal property is, prima facie, ownership.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. Perry A. Hull, for appellant.
    Messrs. Payne & Porter, for appellee.
   Gary, J.

The appellant sued the appellee in what, before the distinction between trespass and case was abolished, would have been counts in trespass for false arrest and counts in case for maliciously, and without probable cause, suing out a ca. sa., under which appellant was taken.

He had been discharged upon habeas corpus. There is now criticism upon the affidavit upon which the ca. sa. issued, as also upon the form of the order by which the circuit judge directed it. But whether the affidavit and form of the order were correct or not, were questions over which the judge who awarded the writ had jurisdiction. If he made a mistake, the process being regular on its face, trespass, whether in form or fact, will not lie.

The cases on the subject of when process is, or is not, a protection, when it can be attacked for defects in the cause upon which it was issued, are innumerable and irreconcilable. The. current of later authorities elsewhere, however, is in line with the cases in this State, that whenever an injury to a person is occasioned by regular process of a court of competent jurisdiction, trespass is not sustainable.” Bassett v. Bratton, 86 Ill. 152; Blalock v. Randall, 76 Ill. 224; Outlaw v. Davis, 27 Ill. 467.

The fact that the appellant had been discharged on habeas corpus does not affect the question. Bushel’s Case, 1 Mod. 119 ; Hammonds v. Howell, 1 Mod. 184, cited by Campbell, Sol. Gen., arguendo, in Dicas v. Brougham, 6 C. & P. 249. Walker v. Martin, 43 Ill. 508, hardly touches this question, as there the process was not final.

It remains to examine whether the appellant put in proof any thing tending to show malice and want of probable cause, for if he did, it was error to instruct the jury to find for the appellee. Bartelott v. Inter. Bk., 119 Ill. 259. To so instruct upon the defendant’s evidence in a case, would be to pass upon its truth, which is for the jury and not the court to do.

The appellant’s evidence was that he carried a watch and chain, which, so far as this record shows, appeared to be gold, when, in fact, they were plated; and that he occupied and held the lease of a two story and basement brick house at 3835 Ellis avenue which was furnished, but the furniture belonged to his mother-in-law.

The affidavit made by appellee charged that the appellant had in his possession and was the owner of a valuable gold watch and chain, and of household goods and furniture at 3835 Ellis avenue, and that the appellee was informed and believed that the appellant had in his possession or under his control about §10,000 in money. It may be conceded that the appellant successfully showed that this information and belief was without foundation.

The burden of proof was on the plaintiff to show malice and want of probable cause on the part of the appellee. Calef v. Thomas, 81 Ill. 478. The case is governed by the rules applicable to the action technically called malicious prosecution. Collins v. Hayte, 50 Ill. 353.

A belief founded upon circumstances sufficiently strong to warrant the belief, is probable cause. Harpham v. Whitney, 77 Ill. 32; Angelo v. Faul, 85 Ill. 106.

Without notice to the contrary, the appellee had the right to trust to and act upon appearances.

Possession of personal property is grima facie ownership. The appellant was in possession of a watch and chain that appeared to be gold, and the furniture of a two story and basement brick house. Ho notice to the appellee that things were not what they seemed, is shown. What is probable cause upon a state of facts assumed or proved, is a question of law. Roy v. Goings, 6 Ill. App. 140, and cases there cited.

The appellant did not show a want of probable cause, taking his own version of his condition to be true. Hotice to the appellee of that condition is not to be presumed without proof.

The judgment is affirmed.

Judgment affirmed.


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    Joseph Bell v. Albert Bruhn.

      Landlord and Tenant—Forcible Detainer—Notice to Quit—Service on Wife—Sale Pendente Lite.
    1. It is a sufficient service of a notice to quit if a copy thereof is delivered to the wife of the tenant.
    2. Judgment against the husband alone is sufficient, although the summons was served on both husband and wife.
    3. Where the lessor conveys property pendente lite his recovery inures to the benefit of the vendee.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Drank Baker, Judge, presiding.
    Messrs. M. A. Rorke & Son, for appellant. ,
    Mr. John C. Richberg, for appellee.
    Upon the trial in the Circuit Court, that court rendered judgment against both defendants. In the case at bar, there was no judgment against the defendant, Minnie Bell. The suit as to her was dismissed. Upon appeal no judgment was asked for nor given against her. Why, then, should she appear in the Circuit Court? Was it for fun? Does she complain because we did not want a judgment against her? Does it lie in her husband’s mouth to complain ? It may be remarked, also, that a party can not allege errors which relate exclusively to other parties who are not complaining, and who are not before the court. Clark v. Warfield, 77 Ill. 258; Richards v. Green, 78 Ill. 526; Crommi v. Thorp, 42 Ill. 121; Horner v. Zimmerman, 45 Ill. 14.
   Gary, J.

January 22, 1887, the appellee demised to the appellant and his wife, rooms. The rent being unpaid, Hay 17, 1887, notice, addressed to them, signed by appellee, was served by delivering a copy to her. This notice was pursuant to Sec. 8 of the act of 1873 in relation to landlord and tenant, and the only question on it is as to the service.

Appellant not leaving the premises, appellee commenced a forcible detainer suit against appellant and his wife before a justice of the peace, in which suit service of the summons was had upon both, but only the appellant appeared; judgment went against him only; he appealed to the Circuit Court, and being defeated there, appeals here. The objection that the appellant’s wife ought to have been brought into the Circuit Court, is not good. Fabbri v. Cunio, 1 Ill. App. 240; Wells v. Reynolds, 3 Scam. 191. She was no party to the judgment before the justice. The judgment of the justice against the appellant alone, disposed of the complaint against her. Wilderman v. Sandusky, 15 Ill. 59.

The service of the notice “by delivering a copy thereof to the within named Hrs. Hinnie Bell, wife of J. Bell, she being a person above the age of twelve years, residing in and in possession of the within described premises,” was a good service. Notwithstanding the fact that it was addressed to both of them, the service was precisely such as the statute requires if it had been addressed to him alone, and it is to be presumed he got it. As a witness on the stand he did not deny receiving it. Farnam v. Holman, 90 Ill. 312; Doe v. Watkins, 7 East, 551; Jones v. Marsh, 4 D. & E. 464.

After the suit was commenced, the appellee conveyed the premises, so that his right to the possession had terminated pendente lite. He was, however, at the commencement of the suit, entitled to the possession, and his recovery inures to the benefit of his grantee. So held in ejectment; Mills v. Graves, 44 Ill. 50; and one of the reasons there assigned is that it is the policy of this State to promote the easy sale and conveyance of land, and not to prevent such conveyance during the long period which may be consumed in litigation. That reason applies to suits of this character with, at least, part of the force that it does to ejectment. No good would result from a contrary doctrine.

There is no merit in the appellant’s case.

Judgment affirmed.


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    Vincent Dloughy v. Albert Spanninger et al.

      Judgments—Priority of Lien—See. 1, Chap. 77, S. S.—Separate Courts.

    Two separate courts can not have the same term'within the meaning of Sec. 1, Chap. 77, R. S. Hence a judgment of the Circuit Court, while it shares pro rata with a judgment entered on the same day in the Superior Court, does not also share with other judgments entered in that court on subsequent days of the same term.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. Theodore Schintz, for appellant.
    Messrs. Weigley, Bulkley & Gray, for E. W. Blatchford & Co., appellees.
   Gary, J.

The construction of the act of March 22, 1872, of which the part material to this controversy is that “ a j udgment of a court of record shall be a lien on the real estate of the i^erson against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer, provided that there shall be no priority of the lien of one judgment over that of another rendered at the same term of court, or on the same day in vacation,” is the only question in this case.

The terms of the Circuit Court of Cook county begin on the third Monday of each month; those of the Superior Court on the first Monday. These parties severally had judgment against the same persons, whose real estate was sold under a foreclosure in the Superior Court, and there being a surplus, the question is, how it shall be apportioned among the judgment creditors. Spanninger’s judgment was entered November 26, 1886, in the Superior Court, and the judgment of all the other appellees on later days of the same term of the same court. The judgment of the appellant was entered in the Circuit Court November 26, 1886.

It seems clear enough that appellant and Spanninger (there being no evidence about hours, or the time of day) share pro rata. But does the proviso tack the other judgments to both appellant’s and Spanninger’s for the purpose of a pro rata, or only to Spanninger’s? Are there two divisions—first, between appellant and Spanninger, and second, the share that falls to Spanninger in that division to be again divided among all the appellees? Or is there to be but one division among them all? ■

If the rule that “ equality is equity” were followed there would be but one division. No aid at arriving at the right construction is found in any decision.

The words of the enacting part of the statute cover the case between appellant and Spanninger, but the words of the proviso apply literally only to appellees among themselves. The judgment of the appellant was not rendered at the “ same term of court” with those of the appellees, for it was in another court, and separate courts can not have the same terms, even if they are of the same name, and identical in period. The Superior Court directed one divisionjpro rata among all parties. With hesitation, this court decides that there should be two, as above indicated. If the parties will take the judgment of the Supreme Court upon the question, the rule will be established.

The decree is reversed, and the cause remanded, with directions to make the division according to this opinion.

lieversed and remanded.


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    A. J. Hoagland v. The Great Western Telegraph Company.

      Practice—Inconsistent Instructions—Evidence—Notice to Produce—Corporations—Stock Subscriptions.

    1. This court will not reverse because of inconsistent instructions, where it clearly appears that the jury were not misled.
    2. Where a party gives notice to the adverse party to produce papers in his custody, no advantage can be taken of their non-production except the giving of secondary evidence.
    3. Where the attorney of the adverse party has in his possession records of the court, which are needed, there can be no complaint of a failure to produce them on notice, the court not having been asked to compel such attorney to restore them.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Messrs. McMaster & Slanker and Tenney, Bashford & Tenney, for appellant.
    Mr. Thomas J. Sutherland, for appellee.
   Gary, J.

This case in all its material facts (except as to questions upon instructions hereinafter noticed) is like the case of this appellee v. Gray, 122 Ill. 630. If the doctrine of that case is to be reversed, it is for the Supreme, and not for this court to do it.

One of the defenses set up by the appellant was that before he subscribed to the stock of the company it had all been taken by others, and therefore his subscription was void, as the company had no stock to which his subscription could apply. The appellant urges with reference to that defense that “ the instructions given by the court were inconsistent and wholly irreconcilable, and it is not strange that the jury was confused and misled.” There was evidence fro and con, upon the defense, and on behalf of the appellee the court instructed the jury :

If the jury believe from the evidence that the defendant, A. J. Hoagland, executed and delivered to the plaintiff the contract offered in evidence, to take and pay for 100 shares of the stock of the plaintiff, of the par value of $250, and that lie has paid thereon only the sum of $1,000, then the court instructs you, as a matter of law, that there still remains due to the plaintiff from the said defendant upon said contract, after such payment, the further sum of $1,500; and further, that by virtue and under the decree of assessment by this court made and entered in the case of Jeremiah Terwilliger and others against the plaintiff and others on the 10th day of July, A. D. 1886, and which decree has been offered in evidence in this case, the defendant became liable to pay to the plaintiff $8.75 upon each and every of said shares, or a sum total of $8.75 thereon, and that portion of said sum of $1,500 became due and payable to the plaintiff by the defendant, upon and according to the demand of the receiver of the plaintiff ; and you are further instructed that if you believe from the evidence that the receiver of said plaintiff, Elias E. Bowen, either by himself or his authorized agents, made demand upon defendant on the 11th day of August, A. £>. 1886, for the payment to him of the said sum of $875 within five days from the date of said demand, and which demand was in writing, and a copy of which has been offered in evidence in this case, and that the said defendant has not paid said sum of money so demanded, then the jury are instructed that the plaintiff is entitled to recover in this action from the defendant;” and on behalf of the appellant:
“ The jury are instructed that if they believe from the evidence in this case that the stock of the plaintiff company was all subscribed prior to and before the taking of the subscription of the defendant, and that at the time of Hoagla.nd’s subscription the company had disposed of all its stock, then and in that case they must iind the issue for the defendant.”

There is a manifest inconsistency in these two instructions? but it is clear that the jury were not misled. Both sides submitted special questions to be answered by the jury. One of those questions by the appellant was: “ Was all of the stock of the plaintiff company taken before the subscription of the defendant was received?” and the jury answered “No.”.

The matter of the appellant’s instruction above quoted should, for the sake of consistency in form, have been appended to the appellee’s as a condition. Had it been so appended, with the words “ provided however ” interpolated between them, all objections would have been removed, and the answer to the question quoted shows what would have been the verdict with the instructions thus arranged.

The appellant objected to going to trial, and after verdict moved for a new trial, upon the ground that the attorney for the appellee had removed from the office of the clerk, and had in his possession the papers of the chancery suit referred to in the declaration, and that he refused, after notice by appellant’s attorneys, to return or produce them.

No order of the court was asked to compel the appellee’s attorney to 2-estore the records of the court to their proper custody. Had such an order been asked, the court would doubtless have done (what it might very properly have done without being asked) whatever was necessary for the integrity of its own records. But to the party giving notice to produce and not asking the aid of the court to compel a production of papers, the only right that accrues upon non-production, is, if he shows the papers in the custody of his adversary, to give secondary evidence of their contents. 1 Greenl. Ev., Sec. 560.

If there is any error in this case, it is upon questions which the case in 122 Ill., binds this court to leave untouched. Judge Garnett takes no part in this decision.

Judgment affirmed.


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    Chicago and Eastern Illinois Railroad Company and Pennsylvania Co. v. Ellen Conners, Adm’x.

      Railroads—Personal Injuries—Joint Liability.

    Two railroad companies operating parallel roads are not jointly liable for an injury occurring on one of them, merely on the ground that their flagmen watched, and were guided by, the movements of each other.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. W. H. Lyford, for appellants.
    Messrs. Hynes & Dunne, for appellee.
   Gary, J.

The appellants are two independent corporations. At the crossing of 35th street in Chicago, the Pennsylvania Company has two tracks, and the other appellant eighteen, further west. The tracks of the one appellant are separated from the other by the space occupied by four tracks of another company. Thirty-fifth is an east and west street, and all the tracks cross it at right angles. Ho connection between the appellants in the ownership or use of their respective tracks is shown by the evidence beyond the single fact that each of them has a flagman on its own tracks, and that in the nature of things those flagmen must, and in fact do, watch the movements of each other, as well as everything else that is happening in their vicinity.

If out of that mutual observation any such relation between the appellants could arise as would make them jointly responsible for an accident on the tracks of either, if negligence by both flagmen were shown, is not a question upon this record, for no such ground of liability is stated in any count of the declaration.

All of the counts charge that the injury resulted from an engine which the appellants drove along a railroad used and operated by them.

The special charge in the third count, that they improperly directed the deceased to cross their tracks, does not qualify or diminish the general one, that the injury resulted from an engine which the appellants drove along a railroad used and operated by them.

The injury occurred on the tracks of the Pennsylvania Company. With the engine that caused it, or the track on which it was going, the other appellant had no connection, and can not be held responsible under the allegation that they drove the engine or used the track. St. Louis, B. & I. Co. v. Burke, 12 Ill. App. 369.

Ho intimation as to what any of the facts of the case are, is intended by this opinion; but that watching, and being guided by the signal of a flagman of one road, does not make that flagman the servant of another, in the particular case, is decided in Chicago R. W. Co. v. Volk, 45 Ill. 175.

The verdict and judgment against the Chicago and Eastern Illinois Railroad Company can not be sustained upon this declaration and evidence, and the judgment against both appellants being a unit, must be wholly reversed. Jansen v. Varnum, 89 Ill. 100.

The other questions now made may never arise again, and are left without discussion.

Reversed and remanded.


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    Maggie O’Malley v. The Chicago City Railway Company.

      Practice—Personal Injuries—Damages—Inadequacy—Appealby Plaintiff-

    1. A plaintiff who is not entitled to recover at all, has no right to have a verdict in his favor set aside on the ground that it is for too small an amount.
    2. Where the plaintiff, under such circumstances, has appealed, the defendant having entered no motion for a new trial, the judgment will be affirmed.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. F. H. Culver, for appellant.
    Mr. William J. Hynes, for appellee.
   Gary, J.

The appellant obtained a verdict against appellee upon her own unsupported testimony, in conflict with that of disinterested witnesses, as to her right to recover at all, upon the charge that she had sustained personal injuries by its negligence, but the jury gave her only 8100. She moved for a new trial because the damages are inadequate.

It may be conceded that the action of the jury was inconsistent, but the concession would furnish no sufficient reason for inconsistency in the action of the court. If this case had come here with the reasons of the judge of the Superior Court for denying the new trial, and they had been that if the defendant would move for a new trial he would grant it, on the authority of Peaslee v. Glass, 61 Ill. 94, but that on the application of the plaintiff he could not grant it, .as she had already more than she was entitled to, could this court, which, as to verdicts, has authority only to correct errors of the court, say that such decision was error? And that is what this record, by fair inference, says. A plaintiff, not entitled to recover at all, has no right, for any reason, to have a verdict for the defendant set aside: Garland v. C. & N. W. 8 App. 571; nor one in his or her own favor, because the damages awarded are less than the pecuniary injury. Hubbard v. Mason City, 64 Iowa, 245.

Judgment affirmed.


author: Gary. J.

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    Moses Ullman v. William Eggert & Company, for use, etc.

      Garnishment—Partnership—Mistake—Estoppel—Practice.

    1. Where a garnishee has answered confessing an indebtedness to a firm which was then supposed by him to be composed of the judgment debtors, he should be allowed to file a second answer upon discovering that the firm to which he is indebted is not identical with the one named.
    2. Where there is no relation of trust, or by contract, between the parties, it is of the essence of an estoppel in pais that the party against whom it is set up should have had knowledge of the facts at the time of the action by which it is claimed he is estopped.
    ' 3. It seems that a debtor of one firm can not he held as garnishee of another, though there be a member or members common to both.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County ; the Hon. Biohaed S. Tuthill, Judge, presiding.
    Messrs. Moses & Newman, for appellant.
    As to the practice of courts to permit new or amended answers, see Wade on Attachments, Vol. 2, Secs. 383, 384; Carrique v. Sidebottom, 3 Metc. 297; Davis v. Oakford, 11 La. An. 379; Tapp v. Green, 22 La. Ann. 12; Neilson v. Scott, Rice’s Dig. (S. C.) 80; Lewis v. Dunlop, 57 Miss. 130; Lewis v. Prenatt, 24 Ind. 98.

      Drake on Attachments (6th Ed.) Sec. 650, says: “The propriety of allowing a garnishee to amend his answer, or to put in a new answer, has in several instances been the subject of discussion, and it has usually been sustained. There is, indeed, no sufficient'reason why an amendment in such case should not be permitted.”
    It can not be reasonable to suppose for one moment that a garnishee can be misled by the plaintiff into an answer of indebtedness to one defendant, when, in fact,-he is indebted to another. Plaintiffs should not be permitted to reap an advantage over the garnishee by first suing “Wm. Eggert & Co.,” without giving their real names, and then forcing the garnishee into a judgment, when such judgment can not protect him against his real creditor. Courts must protect the garnishee under such circumstances or fail in their duty to administer justice. Waples on Attachment, Secs. 368, 228, 204.
    Messrs. Kraus, Mayer & Stein, for appellees.
    Even conceding that the change in the firm took place as alleged, yet the court below was correct in announcing its belief, and deciding the case in accordance therewith, that in view of the agreement and other circumstances shown to exist between the defendants and appellant’s firm, there would, as between William Eggert and his son, be no difficulty whatever in giving credit to appellant and his firm, upon their indebtedness to defendants, for the amount of plaintiff’s judgment against appellant. And there are authorities which hold the garnishee liable upon such a state of facts as claimed by him and the defendants to exist in this case. McCarthy v. Emlen, 2 Dall. 277; Same v. Same, 2 Yeates, 190; Schatzill v. Bolton, 2 McCord, 478.
    The policy of this State, as of every other, is to favor the home creditor as against non-resident debtors, and the court not being bound (as counsel admit) to allow the third answer to be refiled, very properly exercised its discretion by preferring the former and permitting him to collect what was justly his due, without tedious and expensive litigation on the issues sought to be raised by the third answer.

      The facts admitted by appellant are amply sufficient to estop him from denying the truth of what he then told plaintiffs. It was his act which caused them to change their position by bringing suit and subjecting themselves to expense. Were we now to be permitted to deny this indebtedness to the defendants, such denial would work a fraud upon plaintiffs. Mann v. Oberne, 15 Ill. App. 35.
    It is the settled law that the expenditure of money in litigation, in consequence of statements made by the parties sought to be estopped, is sufficient to raise an estoppel. “It matters not if the party acting upon the representation was justified in so doing, how he has changed his position, whether by the purchase of property, the surrender of possession, the erection of improvements, or other outlay upon lands or goods, about which the estoppel is claimed, or the expenditure of money in litigation.” Bigelow on Estoppel, 2d Ed., 492; Linnegan v. Carraher, 47 N. Y. 493; Trustees v. Williams, 9 Wend. 147 ; Hall v. White, 3 Carr. & P. 136 ; Lewis v. Lamphere, 79 Ill. 187; Lord v. Williams, 24 N. Y. 359.
    If the plaintiff was induced to incur the expense of the litigation in reliance upon a statement of the defendant establishing his liability, which, though not true, the plaintiff had reason to believe to be so and to rely upon, the defendant is estopped to deny the truth thereof. Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditure. Meister v. Birney, 24 Mich. 435.
    If the owner of goods represents that they belong to B, and the party to whom the representation is made, relying thereon, attaches the goods for a debt due from B, the owner, in a suit in trover brought by him for the value of the goods, will not be permitted to show that his representation was false, and that he was the real owner of the goods, although at the time he made the representation he had no notice of the debt on which the goods were attached, and had no intention to deceive the party who attached them. Horn v. Cole, 51 N. H. 287.
    It need not appear, in order to create the estoppel, that there was a design on the part of appellant to mislead us. It is sufficient if the act is calculated to mislead a person who acts upon it in good faith. Manufacturers’ Bank v. Hazard, 30 N. Y. 226 ; Racine Bank v. Lathrop, 12 Wis. 466.
    An estoppel arises if the acts of the party sought to be estopped produce an unjust or fraudulent result. It is not necessary that the purpose of the party be fraudulent. Kinnear v. Mackey, 85 Ill. 98; Flower v. Elwood, 66 Ill. 447; Chandler v. White, 84 Ill. 435; Mayer v. Ehrhardt, 88 Ill. 452; 2 Smith’s Lead. Cas. *643.
   Gary. J.

From the voluminous affidavits and counter affidavits in this record, it appears, or seems to appear, that in the city of New York there has been for many years a firm of tobacconists using the firm name of William Eggert & Co.; that in April, 1885, the individual who was the company in the firm, left it, and another took his place, the firm name continuing without change; that the old firm was indebted to the appellees; that the firm of Ullman, Bloom & Co., in Cincinnati, of which appellant is a member, bought goods of and were indebted to the new firm; that, without knowledge by either the appellant or the appellees of the change in the New York firm, they amicably arranged that the appellees should commence, in the Circuit Court, an attachment suit against' William Eggert & Co., and summon the firm of the appellant as garnishees therein.

After this had been done, so far as could be, by summoning the appellant, and he had answered, confessing an indebtedness by his firm to the New York firm sufficient to cover the claim of the appellees, he discovered that the firm in New York to which his firm was indebted was not the same firm that owed the appellees. Within no reasonable space could any summary of the charges and counter charges of these parties be made. It is enough to say that no facts appear by which the appellant is estopped to set up the change in the New York firm.

Where there is no relation of trust, or by contract between the parties, it is of the essence of an estoppel in pais that the party against whom it is set up should have had. knowledge of the facts at the time of the conduct by which it is claimed he is estopped. Bigelow on Estoppel, 467; Dinet v. Eilert, 13 Ill. App. 99; People v. Brown, 67 Ill. 435. That ground fails here. It would be unjust that the firm of the appellant, or he individually, should be compelled to pay to the appellees the debt of the old New York firm, unless that payment would discharge an equal amount of their indebtedness to the New York firm. That it would have that effect is not asserted by the appellees. Lyndon v. Gorham, 1 Gallison, 367, and Upham v. Naylor, 9 Mass. 490, are direct authorities that a debtor of one firm can not be held as garnishee of another, though there be a member common to both firms.

The Circuit Court should have permitted the appellant to present his defense. This opinion is not to be understood as' deciding that he has any defense. The facts are to be ascertained hereafter. The judgment is reversed with directions that the appellant have leave to refile the second answer filed February 11, 1888.

Reversed and remanded.