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    Hiram B. Scutt v. Daniel Robertson.

      Partnership—Pill for Accounting—Ownership) of Tonnage License to Manufacture Barbed Wire—Ayency—Costs.

    Upon a bill filed by one of two partners, after the dissolution of the firm, for a settlement of the partnership accounts, it is held: That the tonnage license, from the owners of certain letters patent, under which the firm had manufactured barb d wire, was the property and an asset of the firm and not the individual property of the defendant; that in procuring such license the defendant acted for the firm; that the issue of the license was part of an arrangement by which a corporation in which the parties were interested was dissolved and the firm organized to succeed to its business; that in procuring the license he acted for such of the stockholders of-the corporation as should actually become members of the proposed firm; and that the defendant should account for the value of certain tonnage for which he surrendered the license and appropriated the benefits derived from such surrender.
    [Opinion filed February 10, 1888.]

      Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Garnsey & Knox and IIaley & O’Donnell, for appellant.
    Messrs. C. A. Hill and Georue S. House, for appellee.
   Baker, J.

In 1875 the original firm of H. B. Seutt & Company, composed of Hiram B. Seutt, Ward Dill man, William Watkins and Israel B. Curtiss, was engaged in the manufacture of barbed fencing, under a patent that had been issued to said Seutt.

Early in 1876, Curtiss and Dillman retired from the firm, and. James it. Ashley and C. H. Ashley were substituted as members thereof. The fencing made by the firm consisted of a twisted strip of metal with prongs inserted in it at- short distances, and it soon became manifest such fencing could not successfully compete with wire having barbs upon it. On the 1st of August, 1876, letters patent Ho. 180,656 were issued to H. B. Seutt, for what is known to the trade as the “ Seutt Barb,” it being a fiat metal barb inserted between twisted wires; the device patented seems to have been, principally, the contrivance of Seutt, aided by suggestions from Watkins, and the firm paid all the expense and charges of procuring the ¡latent; and the firm manufactured wire under it to a limited extent, until the 30th of September, 1876, said Watkins having in the meantime, about the first of September, sold out his interest in the business to the other members of the firm of H. B. Seutt & Company, and the business of the firm being continued under the same firm name.

In the latter part of September, 1876, a corporation was formed known as "The Joliet Wire Fence Company,” with a capital stock of §50,000, divided into 500 shares of §100 each; the patent was put into the corporation at §35,000, the machinery and stock on hand at §5,000 and §10,000 in cash was put in by A. B. Meeker, H. S. Smith, H. A. Bigelow and W. S. Brooks, in unequal proportions. By deed dated September 29, 1876, H. B. Scutt conveyed to the firm of H. B. Scutt & Company, letters patent ¡No. 180,656; and' by deed dated September 30, 1876, the firm of II. B. Scutt & Company conveyed to the Joliet Wire Fence Company, said letters patent ¡No. 180,656.

The original subscriptions of stock made upon the stock subscription hook of the corporation were evidently of a merely preliminary character, and made for the purpose of convenience in the organization of the company in accordance with the agreement that had been entered into between the firm of II. B. Scutt & Company and ¡Messrs. Meeker, Smith, Bigelow and Brooks, and after the organization was completed some of the first stock certificates were surrendered and canceled, and new certificates issued in lieu thereof, so that after October 3, 1876, the stock of the company was owned and held as follows: 250 shares by II. B. Scutt & Company, eighty-five shares by Meeker, eighty-five shares by Brooks, fifty shares by Smith and thirty shares by Bigelow.

The Joliet Wire Fence Company manufactured and sold the “ Scutt Barb,” which was supposed or claimed to be covered and secured by letters patent No. 180,656, and the business done by it was both extensive and profitable. On the first day of October, 1817, C. N. Ashley, of the firm of II. B. Scutt & Company, sold to Daniel Robertson, appellee in the present controversy, eighty shares of stock in the corporation for $10,000, and a certificate of stock for said eighty shares signed by Scutt, appellant herein, as president of the company, was issued to Robertson. At the time of this purchase of stock by Robertson the title to letters patent No. 180,656 stood vested of record in the Joliet Wire Fence Company, the deeds from H. B. Scutt to II. B. Scutt & Company from the latter to the corporation having been duly recorded in the patent office on October 19, 1876.

In December, 1876, the Washburn & Moen Manufacturing Company and I. L. Elwood, who claimed to own and control the patents under which barb wire of any description could be manufactured, in other words the “bottom patents” covering barb wire fencing, instituted two suits in the United States Court at Chicago against the Joliet Wire Fence Company, claiming an infringement of their patents and seeking to enjoin the last named company from manufacturing barb wire. In the latter part of 1S78, as this litigation was still pending, and, as the Joliet company had made a large amount of barbed wire and very considerable sums were claimed by the Washburn & Moen Company and by Elwood for damages, the stockholders in the Joliet company were exceedingly anxious with reference to the results of the litigation. The profits of the business were, therefore, distributed among the stockholders about as fast as earned, and on the 18th of August, 1878, the capital stock of the company was reduced from 850,000 to §10,000. Prior to this time there had been a diversity of opinion among the stockholders; Meeker, Smith, Brooks and Bigelow desiring large and frequent dividends, and Scutt, Robertson and the two Aslileys insisting that the profits should be retained by the corporation and used in extending its business. In the fall of 1878 the four stockholders first mentioned were desirous of closing up the business of the wire fence company and retiring from the barb wire business, and anxious that an arrangement should be made with the Wash-burn & Moen Company and Elwood, whereby all liability for damages should be released and they allowed to retain the moneys they had made; and while Scutt, Robertson and J. R. and C. ET. Ashley were also desirous of securing immunity from damages, they were also, each of them, anxious to continue the manufacture of barbed wire. In September or October, 1878, Scutt, who was president of the fence company, was sent by that company to Worcester for the purpose of conferring with the Washburn & Moen Company and ascertaining whether or not a compromise could be effected which would stop the pending litigation and release the fence company and'its stockholders from all claim for damages. Upon his return he reported that a settlement could be made relieving the corporation from damages, hut only on condition that the corporation would close up its business and assign all its patents to the Washburn & Moen Company; and that Mr. Washburn would be in Chicago in ETovember or December. and that a conference could be had and settlement made with him at that time.

At a meeting of the board of directors of the wire fence company, held on the 18th day of November, 1878, the following resolution was unanimously adopted:

“Whereas, the Washburn & Moen Manufacturing Company and I. L. Ehvood have, by tlieir attorney, made certain overtures for settlement of the litigation now pending between this company and the parties above mentioned; be it resolved by the hoard of directors of the Joliet Wire Fence Company? that its president be appointed a committee of one, with power to confer with said parties and to act as may, in his judgment, he deemed best for the interests of this company, and upon the following terms, which are agreed to, to wit: ‘The Wash-burn & Moen Manufacturing Company to grant full indemnity for all damages for the past and up to January 1, 1879, and the Joliet Wire Fence Company to retire from the business of manufacturing barbed fence-wire at that time, and to assign all patents under their control to the Washburn & Moen Manufacturing Company.5 55

On the 5tli day of December, 1878, at a meeting of said board of directors then held, the following resolution was adopted, to wit:

“Resolved, by the board of directors of the Joliet Wire Fence Company, this day convened in regular session, that the executive committee of this board he and they are hereby authorized to sell to any responsible parties the machinery, tools, fixtures, contracts for labor, leases, and all the franchises, etc., of this, the said Joliet Wire Fence Company, at such price and at such terms as to them may seem a fair valuation for the same, and to deliver possession thereof on the first day of January, A. D. 1879.”

The Joliet Wire Fence Company, by-H. B. Scutt, its president, by deed dated December 12,1878, conveyed letters patent No. 180,656, to Hiram B. Scutt; and said Hiram B. Scutt by deed dated December 18, 1878, conveyed said letters patent to the Washburn & Moen Manufacturing Company. On the same 18th day of December the wire fence company, at a meeting of its Board of Directors, reconsidered so much of the resolution adopted on December 5th as referred to the sale of the franchises of the company, and adopted the resolution following, to wit;

“Resolved, by the Board of Directors of the Joliet "Wire Fence Company that they do hereby ratify the assignment to H. B. Scutt of the following described letters patent, to wit; letters patent ¡No. 180,656, dated August 1, 1876, and letters patent ¡No. 193,557, dated July 24, 1877, applied for and granted to H. B. "Scutt, patentee and assignor. And that said company also assign to said Scutt all their right, title and interest, if any, in and to all letters patent under which they have been operating, or hold under their control.”

On the same 18th day of December the Washburn & ¡M¡oen Manufacturing Company executed to the Joliet Wire Fence Company a release of all damages, and on the same day a written agreement was entered into by the Washburn & Moen Company and Hiram B. Scutt, and approved by I. L. ElwoocL This agreement contained some twenty-six sections, in the first of which it was stated that the Washburn & Moen Manufacturing Company granted to Hiram B. Scutt, doing business or proposing to do business under the firm name and style of II. B. Scutt & Company, a license to manufacture, use and vend to others 500 tons, in each calendar year during the continuance of the license and agreement, of certain designated styles of barbed fence-wire, under certain letters patent therein enumerated; and it was provided in the second section that Scutt should have the privilege of associating with him in the manufacturing of barbed fence-wire under the license, not to exceed three co-partners in number, as he might choose, at any one time, provided each and every one of said co-partners should first subscribe to the terms and conditions of the license and enter into a written obligation to that effect; and provided also, that the business should always be conducted by said Scutt or said Scutt and associate or associates under the style and firm name of H. B. Scutt & Company.

On the said 18th day of December, 1878, Hiram B. Scutt, who had negotiated and transacted at Chicago, with Mr*. Wash-bum, of the Washburn & Moen Company, the business pertaining to the settlement of the matters in controversy between the latter company and the Joliet Wire Fence Company, returned to Joliet on the evening train with the above mentioned license, and at once exhibited it to Bobertson and James B. Ashley, he meeting them by appointment.

A new firm of EL B. Scutt & Company was organized shortly thereafter, consisting of Hiram B. Scutt, Daniel Bobertson and James B. Ashley; C. FT. Ashley had also expected to be a member of such firm, and it was the understanding of his brother and of Bobertson that he was to be a partner, but an objection being made to him by Scutt, lie was persuaded by his brother to not insist upon going into the co-partnership. The new firm bought the machinery and some of the manufactured stock of the wire fence company, and the contract the latter had with the penitentiary authorities for convict labor was transferred to it; and early in January, 1879, the firm commenced to do business as manufacturers of barbed fence-wire under the license.

On the 81st day of December, 1878, Bobertson and J. BAsliley executed a written agreement whereby they agreed to be bound by the agreement between the Washburn & Moen Company and H. B. Scutt during the time they were members of the firm of H. B. Scutt & Company the same as though they were original parties to the same, and promised and agreed to execute each and every requirement thereof in good faith for the term they might be associated with said Scutt in the business of manufacturing said barbed wire. There were no written articles of copartnership entered into by the partners, but the agreement between them was they should each contribute equal amounts to the capital of the firm and should share in the profits equally. The license by its original terms was in force until the 31st day of December, 1885; but by a modification made January 20, 1881, by agreement between the Washburn & Moen Company and the firm, and approved by I. L. Ehvood, it was extended to be in full force and effect for the period of seventeen years from the 27th day of February, lS87,or until the 37th day of February, 1894, and the tonnage of the firm was increased to 5,000 tons per year.

IL B. Scutt & Company continued to manufacture fence-wire, doing a large and profitable business, until the 19th day of September, 1881, when James R. Ashley sold out his interest in the firm to Scutt & Robertson for §53,333.33. The tangible assets of the firm at that time, after deducting all debts owing by them, were over §165,000. By the written agreement made by the parties at the date of the withdrawal of said Ashley from the firm, he conveyed to Scutt & Robertson, among other things, all his right, title and interest in and to the contracts, licenses and patents of the firm. The business was continued by Scutt & Robertson, under the same firm name, until the 30th of June or 1st day of July, 1883. In the latter part of March or early part of April of that year Scutt served upon Robertson a written notice that on the 30th day of June, 1883, he would withdraw from the firm of H. B. Scutt & Company, and that from the time of such withdrawal the use of his name in the business, except so far as might be necessary to close up the business of the firm, would not be allowed. For some time prior to the 33d day of April, 1883, Scutt liad been endeavoring to sell the tonnage license from the Washburn & Moen Company, and the property and business of the firm of II. B. Scutt & Company. At the date last stated he executed two written agreements, by one of which lie agreed, in consideration of §45,000, to assign and transfer to H. B. Scutt & Company, Limited, in Pittsburg, in due form, on or before the 1st day of July, 1883, all rights and licenses held by him, either in his own right or in trust for others, for the manufacture and sale of barbed wire and the use of machines for the manufacture thereof, to include all rights enjoyed by him or II. B. Scutt & Company, of Joliet, in connection with said business, and especially all licenses granted by the Washburn & Moen Manufacturing Company and 1. L. El wood, authorizing the manufacture and sale of 4,000 tons of barbed wire per annum. By the other of said agreements, executed by H. B. Scutt & Company, the machine shop, machines, tools, good will and business of the firm of H. B. Scutt & Company were sold to H. B. Sentí & Company, Limited, of Pittsburg, for $20,000, the delivery of the property to take place July 1, 1882. In accordance with the provisions of this latter contract the property incliided therein was delivered to H. B. Scutt & Company, Limited, on the said 1st day of July. On the same day Scntt wrote to the Wash-burn & Moen Manufacturing Company and I. L. Elwood as follows:

“I have this day assigned to Messrs. II. B. Scutt & Company, Limited, the privilege of manufacturing and selling four thousand tons of barbed wire per annum out of five thousand tons which I am authorized to make by virtue of the license granted by you. I therefore - authorize you to cancel my license to that extent, and to grant a new license to the above company for four thousand tons, or to cancel all the outstanding licenses, substituting therefor a new one to them for four thousand tons, and to me for one thousand tons per annum.”

On the 3d day of August, 1883, Daniel Robertson exhibited in the Will Circuit Court the bill of complaint now under consideration, against Hiram B. Scutt, for the settlement of the partnership accounts of the late firm of H. B. Scutt & Company. The bill, among other things, alleged that the co-partnership obtained, owned and possessed a license from the Washburn & Mocn Manufacturing Company and Isaac L. Elwood to manufacture barbed wire, under which the firm operated and paid royalty, and charged that Scutt, without the knowledge or consent of the complainant, sold, assigned and conveyed the said license and the tonnage and other rights acquired by said firm thereunder to H. B. Scutt & Company, Limited, or to some other corporation, firm or person unknown, for the sum of $15,000; that Scutt had paid no part thereof to complainant, or accounted to him -or to the firm therefor; but, on the contrary, liad concealed said sale from complainant for a long time after it was made, and denied to him that he had sold the same; and that Scutt now pretends that said license and tonnage was his own property, but that said license and tonnage was in truth and in fact the property of the firm of H. B. Scutt & Company, composed of complainant and said H. B. Scutt.

The substantial and controlling issue made by the bill was whether or not the license of December 18, 1S78, was the property and an asset of the late firm of H. B. Scutt & Company. A hearing was had before the court upon the pleadings and the proofs, and an order and decree entered on November 14, 1885, which contained the special findings of fact, to wit:

“ First. That on or about January 1, 1879, Hiram B. Scutt, James B. Ashley and Daniel Bobertson entered into a co-partnership as equal co-partners, share and share alike, under the firm name and style of H. B. Scutt & Company.’

11 Second. That the agreement and license of dateDecember 18, 1878, from the Washburn & Moen Manufacturing Company, and approved by I. L. Elwood, named in said bill of complaint and as amended subsequent to its date and prior to the withdrawal of James B. Ashley from the said firm of ‘II. B. Scutt & Company,’ was equitably an asset and the property of the said co-partnership of ‘ H. B. Scutt & Company.’ composed of Hiram B. Scutt, James B. Ashley and Daniel Bobertson, and so continued until the withdrawal of the said James B. Ashley from the said firm of ‘ H. B. Scutt & Company.’

“Third. That on or about the 13th day of September, A. D. 1881, the said James B. Ashley retired from the said co-partnership of c H. B. Scutt & Company,’ and on said day last named the said James B. Ashley sold, assigned, transferred and delivered to said Hiram B. Scutt and Daniel Bobertson, in equal shares, all his right, title and interest in and to the assets and property of the said co-partnership of 6 H. B. Scutt & Company,’ including the said license above named, as part and parcel of the co-partnership property of •' H. B. Scutt & Company.’

“Fourth. That at once, upon the withdrawal of said James B. Ashley from the said firm of II. B. Scutt & Company,3 Iliram Scutt and Daniel Bobertson continued a partnership under the name, style and firm of lH. B. Scutt & Company,3 continuing the business of the old copartnership of 6 H. B. Scutt & Company ’ under the same name and style, and that in the new firm of ‘ II. B. Scntt & Company ’ said Hiram B. Scutt and Daniel Robertson became and were equal co-partners, share and share alike, and that the new firm of ‘H. B. Scutt & Company ” continued as thus formed until dissolved by mutual consent on or about the 1st day of July, A. D. 1882.

“ Fifth. That the said Hiram B. Scutt and Daniel Robertson brought into the new co-partnership of ‘H. B. Scutt & Company,’ as capital in equal shares, share and share alike, the assets and property which were of the old firm of ‘ II. B. Scutt & Company ’ then remaining, and that the said license above named from Washburn & JVIoen Manufacturing Company, approved by I. L. Elwood, of date December 18, 1818, as amended, became and was the property of the new firm of ‘ H. B. Scutt & Company,’ composed of Hiram B. Scutt and Daniel Robertson, and that the said Hiram B. Scutt and Daniel Robertson, as such co-partners, became and were equally interested, share and share alike, in the same as sole owners thereof, and of all moneys, debts, evidences of debt, assets and property arising or to arise on account thereof.”

The cause was then referred to the master in chancery to state an account with his findings with reference thereto, said account to be stated in accordance with findings of the court-

The cause was again heard by the court at the September term, 1886, upon exceptions filed by Scutt, the defendant, to the report made by the master of his findings and statement of account. This report of the master was quite voluminous and contained twelve especial findings, the eighth and twelfth of which were as follows:

“I charge H. B. Scutt with §600, the amount of a book account of H. B. Scutt & Company against Daniel C. Stover, which I find was settled by deed of patent from Stover to John F. Scutt, made at the special request of H. B. Scutt, and with interest on said amount from March 8, 1883, the date of settlement, to September 30, 1886, at the rate of six per cen., making a total of §727.70.

“ Twelfth. I find that H. B. Scutt, at the dissolution of the partnership of H. B. Scutt & Company on July 1, 1882, returned and appropriated to his own use 1,000 tons of tonnage covered by the license of Washburn & Moen and I. L. Elwood to H. B. Scutt, and that said tonnage was of the value of $11,250, being the same value per ton as the 4,000 tons of tonnage sold to H. B. Scntt & Company, Limited, by II. B. Scutt. I therefore charge H. B. Scutt with $11,250, with interest thereon from July 1, 18S1, to September 30, 1888, at the rate of six per cent, per annum, amounting, principal and interest, to the sum of 814,109.35.”

The court sustained the exceptions of the defendant to the eighth and twelfth findings of the master, and overruled all other of his exceptions to the report; and the report was referred back to the master to re-state the account in conformity with the order of the court then made.

The cause was again heard by the court on the 25th day of February, 1887, on exceptions filed by each of the parties to the suit to the second report and the statement of account made by the master, and all of said respective exceptions were overruled by the court, and said second report of the master approved, and a final decree was thereupon entered, based upon said second report, in favor of Daniel ¡Robertson and against Hiram B. Scutt, for the sum of $30,063.88 and costs, and execution awarded therefor.

From this final decree Hiram B. Scntt has taken this appeal and has assigned errors upon the record; and Daniel ¡Robertson, appellee, has assigned cross-errors.

The material question to he determined upon the assignments of error made by appellant is whether or not the Circuit Court erred in finding that the license issued by the Washburn & Moen Manufacturing Company, with the consent of Isaac L. Elwood, to H. B. Scutt, of date December 18,1878, with the amendments thereto, was the partnership property and in equity an asset of the late firm of H. B Scutt & Company; the cross-errors question the ruling of the court sustaining exceptions to the eighth and twelfth findings contained in the first report of the master.

The evidence found in the record is so very voluminous and conflicting that it can not well be compared and discussed within reasonable limits, and we shall therefore not here undertake so to do to any considerable extent. In our opinion, the proofs sustain the finding of the court that the license was equitably an asset, and the property of the co-partnership of H. B. Scutt & Company; without stopping to consider the antecedent status and ownership of letters patent No. 180,-656, it is clear from the evidence, that on September 29,1876, appellant,'by his deed of that date, conveyed said letters patent to the old firm of H. B. Scutt & Company, and that they, by their deed of September 30, 1876, conveyed said letters patent to the Joliet Wire Fence Company, and that such conveyances were absolute in their terms and were duly recorded in the patent office in October of that year. It is also clear from the evidence, that when appellee, on the first day of October, 1887, purchased, for the consideration of §10,000 in cash, eighty shares of capital stock in the Joliet Wire Fence Company, from C. NT. Ashley, then a member of the old firm of H. B. Scutt <& Company, and obtained a stock certificate therefor, signed by appellant as president of the corporation, the title to these letters patent stood vested' of record in the wire fence company"; that said letters patent had theretofore been put into the capital stock of the company at §35,000, and that appellant' was not claiming or asserting any right, title or interest, either legal or equitable, in or to said letters patent, other than that which he held as a stockholder in the corporation. Appellee, therefore, had full right to rely upon their being the absolute property of the corporation.

The decided weight of the evidence is that at and prior to the negotiations had by appellant with Mr. Washburn at Worcester early in the fall of 1878, and up to the time of the final settlement with the Washburn & Moen Company at Chicago and the procurement of the license, it was the understanding and agreement between appellant and those of the stockholders of the wire fence company who desired to continue the manufacture of the barbed wire fencing, that the mission of appellant in his negotiations with the Washburn & Moen Company included not only procuring indemnity against damages for wire already made and sold, but also the making of some arrangement whereby the fence wire business could be continued. The testimony of Robertson, James R. Ashley, Cyrus H. Ashley and W. S. Brooks is all expressly to that effect, and is sufficient to overcome the testimony of appellant to the contrary. We also think it evident from the testimony of Brooks, and the other evidence in the case, that it was known and understood by all the stockholders that the business was to be continued after a settlement with the Washburn & Moen Company, by a portion of the members of the wire fence company, either as a corporation or otherwise, and that they all acquiesced in such arrangement and in such continuance of the business; and that on the return of appellant from Worcester he reported to them a release of damages could be procured and a license for future operations obtained, but only upon condition the corporation was dissolved and all the patents held by it, including letters patent Ho, 180,656, were assigned to the Washburn & Moen Company, and a firm organized instead of a corporation, to which the license should be granted. It was plainly, in furtherance of the desires of those of the stockholders who did not wish to continue in the barbed wire business, and in furtherance of their interests as they understood them, that the proposed arrangement should be carried out in its entirety. These outside stockholders were all engaged in other business and had discovered they could not continue business pleasantly with Robertson and the members of the old firm of H. B. Scutt & Company. They were anxious to get out of the fence-wire business and be relieved of all liability for damages, and it was of interest to them that some person or persons, or corporation, should continue the manufacture of wire, to whom they could dispose of their machinery, tools, stock, contracts and other property connected with the manufacture of fence-wire.

We think it very plain from the direct evidence, from the surrounding circumstances, from the conduct of the wire fence company and each and every of its stockholders, and from the inherent probabilities of the case, that it was fully understood and agreed by all the stockholders, not only that the patents should be assigned to the Washburn & Moen Company, but all the rights, titles, interests and benefits that should accrue from the proposed license, to be issued by the Washburn & Roen Company, should vest in and be the property of the firm that should be formed to continue the manufacturing of barbed wire.

It is objected that by the arrangement and agreement as testified to by Robertson and J. R. and C. R. Ashley, said C. R. Ashley was to have been a member of the new firm; that if the fence company was the absolute owner of the letters patent and conveyed the same to Seutt in trust, it was only in trust to secure indemnity for all damages for the past up to January 1, 1879, and that‘even in trust for any licenses it was in trust for four—Seutt, Robertson and the two Ashleys—and that if Seutt was an agent to procure the license he was an agent for the four persons mentioned, and not the agent of Robertson, James R. Ashley and himself alone. Brooks testifies, in substance, that Seutt made a verbal report when all the members of the corporation were present, that Washburn would have nothing to do with a corporation, it must he a firm; that if they would dissolve the corporation and make an assignment to him of the patents in their hands, he would, in consideration of this and of their forming a company and taking out a license, give them immunity for the past; and that his report was adopted and they agreed to make a settlement. While it is evident from the testimony that it was fully understood by all the stockholders that it was a part of the proposed settlement that a license should be issued to such firm as should he formed by members of the fence company, yet it does not appear that the corporation was ever advised what particular stockholders would enter the proposed firm, or that the individual stockholders, excluding appellant, appellee and the two Ashleys, had such information. So, whatever trust there was in that behalf, was for the benefit of such of the stockholders as. should actually become members of the proposed new firm of H. B. Seutt & Company. If Seutt was in fact the agent of the firm in obtaining the license in his own name for the benefit of himself and his co-partners in the contemplated firm of H. B. Scutt & Company, and one of the four Avas afterward, by the aefc and procurement of Scutt himself, excluded and prevented from becoming a member of the firm, and the person so excluded acquiesced in such exclusion and waived all his claims in that behalf, and is making no complaint in regard thereto, and the others also acquiesced in such exclusion, and the firm was actually organized with three members instead of four, then Scutt should be held to be estopped in equity from now claiming he Avas not the agent, in procuring such license, of the persons avIiu became co-partners Avhen the firm Avas actually formed.

In our opinion the language used in the first and second sections of the license negotiated by Scutt and dated December 18,1878, and the fact that on his return to Joliet from Chicago Avitli the license he met appellee and James R. Ashley, by appointment, and displayed to them such license, are strongly corroborative of the claim that in procuring such license he Avas not acting for himself alone, but as the agent of those who Avere about to form the ncAv firm, and purchase the property of the Joliet Wire Fence Company. Strongly corroborative of the same theory, and at variance Avith the defense noAV made by him, are the statements contained in his letter of December 9, 1878, to C. Boiltclier, of Boulder, Colorado, in Avhich he says, in his own baud writing:

“Now our affairs AA-ear a different aspect. A combination has been formed composed of the leading Avire manufacturers, and including the Washburn & Moen Manufacturing Company and I. L. Ehvood & Company, making the Glidden wire,- and ourselves, or rather H. B. Scutt & Company, Avho Avill succeed this company on January 1st next. This combination controls all the valid patents on barb wire,' and goes into effect January 1st. The price of Avire will be advanced to 10 e. in car lots, or one half c. more than yon paid. II. B. Scutt & Company assume the liabilities and assets of J.. W. E. Co.55

In the written agreement signed by appellant, appellee and J. R. Ashley, dated September 19, 1881, executed on the occasion of the AvitlidraAval of the latter from the firm, it is stated that Ashley conveys to Scutt and Robertson all his right, title and interest in and to the licenses of the firm; and it is the uncontradicted testimony that the firm held no license other than that dated December 18, 1878, executed by the Washburn &Moen Manufacturing Company and approved by Isaac L. Ehvood, and the amendments thereto. This circumstance shows that this license was at that time regarded by the copartners as the property of the firm, although, from the evidence, it is probable it was not then considered, at least by said Ashley and appellee, to be of an.y considerable pecuniary or salable value. It ' is also a- circumstance worthy of notice that as late as the 22d of April, 1882, appellant, in the secret written agreement he made .with H. B. Scutt & Company, Limited, for the sale of 4,000 tons of the tonnage covered by the license, expressly mentions and includes rights and licenses held by him in trust for others and all rights enjoined by H. B. Scutt & Company of Joliet.

We deem it unnecessary to refer to numerous other facts and circumstances in proof. There are some matters of considerable probative force that tend to prove the theory of the case contended for by appellant. NotEible among these is the difference between the “consent” which was signed by appellee and James R. Ashley, the substance of which we have given in the statement of the case, and the agreement provided for by the terms of the contract made by appellant with the Washburn & Moen Manufacturing Company, and by which appellant was bound, and the fact that Ashley refused to sign an agreement which would have bound them for and during the period of the existence of the license. Notable, also, is the absence from the inventory that was made of the assets of the firm at the time of the sale of the interest of Ashley to Scutt and Robertson, of all mention of or valuation upon the license. In our opinion, however, especially in view of the circumstances of explanation found in the record a.nd of the weight of the evidence considered as a whole, these facts are not of controlling influence. Our conclusion is, that the alleged errors insisted upon by appellant are not well assigned.

If the tonnage of 4,000 tons per annum which was sold and transferred by appellant to H. B. Seutt & Go., Limited, was equitably an asset and the property of the firm of H. B. Seutt & Company, composed of appellant and appellee, then the remaining 1,000 tons of yearly tonnage, they both being parcels of the 5,000 tons of annual tonnage included in the license as amended, was also equitably an asset and the property of the co-partnership of H. B. Seutt & Company, composed of appellant and appellee. The evidence, as we understand it, shows that this 1,000 tons of tonnage was at or about the time of the sale and delivery to H. B. Seutt & Company, Limited, and of the dissolution of the firm, of H. B. Seutt & Company, of Joliet, appropriated and converted by appellant to his own use. It was included in the license for 5,000 tons, which was, on the first day of July, 1882, surrendered to the Washburn & Moen Company for cancellation, with a request a license for the 1,000 tons should he issued to him, Seutt. This was done without the knowledge or consent of Robertson, and the fact it was or had been done was studiously concealed from the latter, notwithstanding his repeated inquiries for information. The license and its several amendments were in fact canceled, but no new license was issued to Seutt for the 1,000 tons. The license or tonnage to the amount of the 1,000 tons, in some way or manner or by some arrangement which is not male clear by the evidence, remained in the hands of the Wash-burn & Moen Company, but Seutt got the benefit of it. On his direct examination Seutt testified that the 1,000 tons of tonnage is owned by him, and that he is still manufacturing under it. On his cross-examination he said, “that thousand tons still remains in my name. It is my individual property, and I am manufacturing under it to-day, and am reporting to Washburn & Moen Manufacturing Company my sales.” From his acts and his claim of exclusive ownership, it must he presumed, as against himself, that he has converted and appropriated it to his own use. If the 1,000 tons of tonnage was the property of the firm, and Scntt denied the title of his partner therein, and by his procurement, in disregard of the rights of his eo-partner, the license therefor was surrendered and canceled, and the benefits derived from such surrender and cancellation appropriated by him to his own individual use, it would seem he should, in equity, account for the value of such tonnage. The evidence is very clear that this tonnage was a salable property, and could readily and easily have been sold and disposed of for the benefit of the firm. In Ligare v. Peacock, 109 Ill. 94, it was held that if a partner, after dissolution of a partnership, retains the possession of partnership property and appropriates it to his own use, he must account for it at its fair cash value. In Laswell v. Pobbins, 39 Ill. 202, it was held that where a partner lias been intrusted with partnership property and has it under his control he must be charged with its value, and to discharge himself he must account for its disposition and what he has done with the proceeds; and that in such case the one partner only has to show that the other received the property and its value, and the presumption then arises that lie is liable, and to discharge himself he must show some legal defense. The master in his first report charged appellazit with this 1,000 tons, and fozmd that said tonnage was of the value of §11,250, being the same value per ton as the price at which the 4,000 tons were sold to H. B. Scntt & Company 5 Limited. The evidence of the witnesses Lambert, Connell, Curtis, Bishop, Watkins, Collins and Lord, fully sustains the finding of the master in respect to the value of this tonnage. We think the Circuit Court erred in sustaining the exceptions of appellant to the twelfth special finding contained in the first report of the master, and in overruling the exceptions taken by appellee in respect to the same matter to the second report of the master, and we think the cross-error assigned by appellee in that behalf is well assigned, and that the final decree rendered by the court should have included the moiety of appellee in this §11,250, with interest thereon at the rate of six per cent, per annum from July 1, 1882, to the date of the decree.

In respect to the ruling of the court sustaining the exceptions of appellant to the eighth special finding of the master we find no error. The testimony of appellee himself shows that it was with his knowledge and consent that Scutt made the arrangement with Stover, by which the account of the firm against Stover was settled by the assignment of patent Ho. 164,947.

For the error of the Circuit Court in refusing to allot as a co-partnership charge against appellant the item of §11,250 and interest thereon, for the conversion and appropriation to liis own use of the 1,000 tons of tonnage included in the license as amended, the decree of that court is reversed, and the cause is remanded to said court with directions to enter a final decree in favor of Daniel Bobertson and against Hiram B. Scutt, not only for the several items of charge included in the decree hereby reversed, but also including a further charge for the moiety of or equal one-half interest of appellee in said §11,250, with interest thereon at the rate of six per cent, per annum from July 1, 1882, to the date of the entry of the decree. And it is further ordered that the costs of this appeal be taxed to appellant

Affirmed in 'part and reserved i/n jpart.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    The Chicago, Rock Island & Pacific Railway Company v. John Touhy.

      Railroads—Personal Injuries—Fellow-Servants—Contributory Negligence.

    1. In an action brought by a switchman against a railroad company to recover damages for a personal injury received in the course of his employment, it is held: That plaintiff and the engineer were fellow-servants; that the negligence of the engineer was the proximate cause of the injury; that the acts of the foreman, if negligent, did not render the defendant liable; and that the weight of the evidence shows that the plaintiff was guilty of contributory negligence.
    2. The fact that one of several servants, in the habit of working together and in the same line of employment for a common master, has power to control and direct the actions of the others with respect to such employment, will not render the mister liable for Ms negligence resulting in an injury to one of the others, unless the negligence complained of arises out of and is the direct result of the exercise of such authority.
    [Opinion filed February 14, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. \ George W. Stipp, Judge, presiding,
    Messrs. Thomas F. Withrow, James O. Hutchins and Snapp & Snapp, for appellant.
    Messrs. TIaley & O’Donnell, for appellee.
   Baker, J.

This is an action on the case, wherein John Touliy, appellee, recovered judgment in the Will Circuit Court against the Chicago, Bock Island and Pacific Kailway Company, appellant, for §1,500 damages for personal injuries.

In 1885 the appellant company was possessed of certain switch yards at Grand Trunk Junction in Cook County, and the switch work of the company at said yard was done by a switch crew or gang, composed of said Touhy and Griggs, Popham, Dicker man and Huntsman; of these Dickerman was engineer, Huntsman was fireman and Popham and Touhy were switchmen or helpers. It is a matter of contention what is the proper title by which to designate Griggs; appellant insists he was head switchman, or foreman of the switch crew, while appellee urges he was yardmaster, or foreman of the yard. It would seem the mere title by which he is or was designated, is not very material. The evidence shows that William Dale was station agent of appellant at Grand Trunk Crossing; that when trains had to be made up in the yard the trainmaster gave him an order, and he gave the order to Griggs to execute, and the execution of the order was left to the latter; and that when cars came in from outside points they were accompanied by way-bills, and these came to the station agent, and that as the cars had to be transferred to various side tracks according to their several designations and the particular road on which, and direction in which, they were to be transported, such agent made out switching lists and handed them to Griggs and the latter marked the cars in conformity with such lists, and used his own judgment in resjject to what switch tracks to put the cars on, and how many to put on the respective tracks; and that Griggs superintended and directed the work of moving, switching and transferring the ears, and had charge of and command over the switching crew, but at the same time worked together with the other switchmen of the gang as a co-laborer in cutting, coupling and uncoupling cars, braking, opening and closing switches, and the other manual labor connected with the work.

At Grand Trunk Junction the railway of appellant runs nearly east and west, and is intersected by the Grand Trunk railroad, which runs at that point nearly north and south. There were three main tracks there and eight side tracks, and the transfer business between tlie two railroads was quite considerable. On the day in question some twenty-five box freight cars were standing on one of the side tracks, about seventeen or eighteen of which were south of a public road that crossed said side track, and the remainder were north of said road. The switch engine was ordered by Griggs to back upon this side track and get these cars. The engine had no ears attached to it when it went in on this switch track from the south, and it backed north and picked up one car which stood by itself, and then backed to couple on the others that were south of the road crossing. At the time of the transaction Popham was busy with some cars on the main line of appellant, and appellee was upon the right or engineer’s side of the switch engine and train, and Griggs was upon the left or fireman’s side. Touhy, the appellee, gave the signal to back to make the next coupling, which was duly obeyed, and immediately thereafter he went in between the car attached to the engine and the standing cars to make the coupling, but failed to do so. After the cars struck together they separated a short distance, and the evidence is conflicting whether Touhy remained between them, without showing himself to the engineer, or came out and gave a signal and then returned to his place between the cars for the purpose of changing a link preparatory to making a second attempt to couple. At all events, the cars came together again, in response to a signal from Grriggs, and Touhy’s left hand was caught between the draw-bars, and so seriously crushed and injured that two of his fingers had to he amputated, and a third was rendered permanently stiff at the joint where it was broken. The matter at issue is, whether or not the appellant corporation is legally liable to respond in damages to Touhy, for the personal injuries thus-received.

Touhy was on the engineer’s side and signaled the engineer to back up and couple on to the next car, and the train hacked and he went in between the cars to make the coupling, but missed making it. It is very plain from the testimony that it was then his duty to come out from between the cars on the engineer’s side and signal the engineer either to “ slack ahead,” or to “stand still.” It is manifest that if he did not do this, but remained between the cars, then he was guilty of such contributory negligence as would preclude a recovery. The engineer testified positively that Touhy neglected to perform this very necessary duty; he swears: “ Touhy did not come out and show himself. I expected him to come out on the same side. I watched for him all the time. lie did not give me a signal to slack up. I did not see any such signal. If he had given me a signal I would have seen it, because 1 was looking right at him. I was looking at the place Touhy went in all the time.”

But Touhy swears that he stepped out from between the ears and gave the engineer a signal to slack ahead a little. If this be true then it was the engineer’s bounden duty to have seen and obeyed the signal; knowing that Touhy had gone in to make the coupling it was required of him to watch closely his side of the train, to ascertain whether Touhy came out, and what signals he made; and the duty was also imposed on him not to back the engine until he either received a signal from Touhy, or saw that he was clear of the train. If Touhy made the signal to slack up and the engineer did not watch for and see it, it was negligence in the engineer. And whether Touhy did or did not make the signal, in either event it was the duty of the engineer, he not having seen the signa' if made, to refrain from backing his engine, even upon a signal so to do, without either he first knew that Touhy was out from between the cars, or else ascertained such signal was from Touhy. So, in either state of the case, it was culpable negligence in the engineer to back his train when he did, and his negligence in so doing caused the injury. The engineer was without question a fellow-servant of Touhy, and being such the latter can not recover against the common master for an injury caused by the neghgence of his fellow-servant.

It does not help the matter that the engineer may have supposed the signal to back on which he acted came from Touhy, through the fireman on the left side of the engine. The overwhelming weight of the evidence is that Touhy had been in the frequent habit, after malting a- coupling, of jumping over the bumpers, between the cars, and coming out from the train on the other side from that on which he had gone in to make the coupling. The testimony of Dickerson, Griggs, Popham and Gruley to that effect is clear and positive, and three of them are men who worked with him on the same switching gang, and they are opposed only by his own uncorroborated statement to the contrary. That such crossing over to the other side of the train is contrary to the rules that appertain to railroading, and is negligence, is the uncontradieted testimony ; and even without any evidence to that effect reason and common sense would indicate that such conduct was gross negligence. It is shown by the testimony of several of the witne;ses that both the engineer and foreman had found fault with him for such practice. So, to this extent, the conduct of the engineer is palliated by the circumstance in question, and the fact he supposed Touhy had crossed over to the fireman's side of the train; fully to that extent the responsibility and negligence is shifted to the shoulders of Touhy himself.

The claim of negligence made by appellee is,-that Griggs gave the signal to back the train; that Griggs was yardmaster or foreman of the yard and the representative of the railroad company, and it was negligence in him to give the signal to back without first knowing Touhy had made the coupling and was clear of the cars, and that his negligence in so doing was the negligence of the company he represented.

Griggs had charge and control of the switch crew at the yard and authority over them, and they were subject to his commands. At the same time he worked along with the rest of the switch crew in the same line of employment and as a co-laborer. According to the doctrine announced in C. & A. R. R. Co. v. May, 108 Ill 288, it would seem Griggs occupied a dual position in respect to the switch crew; in the one capacity lie was the representative of the master, and in the other capacity a fellow-servant. In that case the Supreme Court said: “ The mere fact that one of a number of servants who are in the habit of working together in the same line of employment, for a common master, has power to control and direct the actions of the others with respect to such employment, will not, by itself, render the master liable for the negligence of the governing servant resulting in an injury to one of the others without regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority sometimes, or generally, labors with the others as a common hand, will not, of itself, exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. If the negligence complained of consists of some act done or omitted by one having such authority, which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, the common master will not be liable. But when the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable.”

The difficulty of the rule seems to be in its application to determine in each particular ease in which capacity the servant having the authority is acting. Here the contention of appellant is that Griggs, in giving the signal in question, was acting merely as a switchman and one of the gang of workmen in the same line of employment, and that the act done by him related only to his duty as a co-laborer with those under his control. The evidence shows, however, that no one but the foreman of the switch crew or switch yard, as the proper title may be, had right or authority, under the rules of the railroad company, to order or direct the public road to be blocked; that it necessarily would be blocked in coupling onto the cars that stood on the switch track north of the road crossing; and the contention of appellee is that the signal given was an exercise of the authority conferred upon Griggs by appellant to govern and direct the movements of the men under his charge and control, and in law a command of the company.

Whatever may be the correct conclusion with reference to the capacity in which Griggs was acting, we have serious doubts of the propriety of the finding of the jury that he was guilty of culpable negligence in giving the signal to back the switch engine and train, and, in fact, the jury erred in so finding. He knew that Touhy was to make the coupling south of the public road, and hastened to the public highway for the purpose of being on hand to signal the engineer if the road was clear and couple the cars north of the crossing; he was on the fireman’s side of the engine, train and intervening cars, and of course could not see Touhy, who was on the engineer’s side, but he heard the switch train strike the standing cars and more than ample time had elapsed in which to make the coupling. He was warranted in assuming that Touhy and the engineer, both of whom were old and experienced railroad men, would discharge their respective duties. He did not know the former had succeeded in making the coupling, but he did know that, if he had not, then it was his duty to step out from the cars on the engineer’s side of the train and signal the engineer either to “slack ahead” or “stand still;” and he also knew it was the engineer’s duty to keep close watch for such signal and see it if given, and if given to obey it, and then not to back up again without he either received a signal known to be from Touhy or saw that the latter was clear of the cars. He could not reasonably have con-temp’ated that the engineer, upon receiving his signal to back Tip and block the crossing and couple on to the cars north of the highway, would forthwith obey such signal notwithstanding the fact he knew Touhy had .gone between the intervening cars to make a coupling, and, so far as known, was still there, and would almost necessarily be either injured or killed by such immediate response to the signal. The signal from the standpoint of Griggs was not either recklessness or negligence, but from the standpoint the engineer occupied it was so manifestly unreasonable and dangerous to life and limb, if at once responded to, that he was under no obligation so'to respond to it.

The engineer did not respond to the. signal for the reason it was a command of his superior which he was required to obey, for the uncontradicted evidence is that he neither knew nor inquired from whom it proceeded. There is no plausiVc ground upon which it can justly be regarded as coming from Griggs as a representative of the master instead of from him as .a fellow-servant of appellee, except the one circumstance that Griggs only, and he in his capacity of yardmaster or foreman of the switch gang, had authority to close the highway crossing or order it closed. Otherwise than as thus indicated the signal given might well have been given by any other switchman of the switch gang. Griggs was on the fireman’s side of the engine and train, and knew Touhy was on the engineer’s side and out of his sight, and was also aware Touhy had gone in to make the coupling and that it was impossible for him, Griggs, to certainly know whether or not Touhy had succeeded in so doing; and both Tonhv and the engineer knew on which side Griggs was, and they both were fully advised Griggs could not possibly have knowledge of the safety of Touhy, without the latter, in disregard of his duty and the rule that governs railroading in that regard, had jumped over the bumpers and between the ears after making his coupling and was on the fireman’s side and free of the train. The only thing the signal, fairly considered, indicated, was that the public road was clear of teams and the crossing could be blocked; and it was not contemplated by any one a signal from the foreman had any reference to Touhy. It is plain that the signal made hy Griggs, even if made hy virtue of his authority as yardmaster or foreman, and known by tlie engineer to emanate from him, was not a peremptory order and command of the company itself forthwith and at all hazards to back up and close the public road crossing, nor could it, in the nature of things and in view of the situation, be reasonably regarded either by Griggs himself or by the engineer as such peremptory command and demanding immediate obedience. A discretionary power was, from the very necessity of the case, lodged in the engineer, and Ms duty both to his fellow-servant and their common master, required of him, not immediate and reckless obedience regardless of consequences, but a reasonable and cautious exercise of this discretionary power.

Assuming that Griggs, the foreman, was guilty of negligence, though we fail to find that he was, and that such negligence was the negligence of the company, vet it was not the proximate cause of the injury, but such proximate cause was the negligence of the engineer in at once responding to the signal reported by the fireman without first ascertaining whether or not it came from Touhy, or else that the latter was clear of the cars. The independent voluntary act of the engineer intervened and broke the casual connection between the signal and the injury. In such ease tlie law is that if the negligence of the fellow-servant occasioned the injury, then there is no cause of action. We think, from the evidence that without doubt the negligence of the engineer does appear in this case and that it was the cause of the injury. As throwing some little light on this litigation, we refer to C. & A. R. Co. v. Keefe, 47 Ill. 108.

We have not placed our decision upon the ground Touhy himself was guilty of negligence, upon his failure to effect the coupling, in not stepping out from between the cars and signaling the engineer. If the evidence of the engineer is true, Touhy was undoubtedly guilty of gross negligence in that regard. But the testimony of Touhy himself was in contradiction of the engineer, and it was for the jury to determine in respect to the credibility of these two witnesses; and we would hardly be justified in overruling their decision upon this point. We may incidentally add, however, to that which we have said in deciding the case, that in our opinion the weight of the evidence is that appellee was personally guilty of negligence in the premises, both in respect to that matter and in respect to his persistent habit, after effecting a coupling, of jumping across the. train, between the cars, to the opposite side of the train from that on which he went in between the cars.

Our conclusion is, that, the judgment is erroneous upon the facts as shown by the record, and that the appellee has no legal right of action against appellant; and the judgment is therefore reversed.

Judgment reversed.


text:
    Robert Scott v. The Town of New Boston.

      Highivctys—Obstruction—Connection of Fence with Bridge—Proceedings by Town to Recover Statutory Penalty—Form of Complaint before Justice.

    1. In a prosecution before a Justice under Sec. 71, Chap. 121, R. S., to recover the penalty for obstructing a highway, the form of the complaint is wholly unimportant, no written pleadings being required.
    2. The public is entitled to the use of every part of a highway to the exclusion of all other uses except as permitted by statute.
    3. An adjoining land owner is not entitled to build his fence on the bank of a stream and across a part of the highway to connect with a bridge.
    [Opinion filed February 29, 1888.]
    Appeal from the Circuit Court of Mercer County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Bassett & Wharton, for appellant.
    There was, then, no highway where this obstruction is claimed to have been placed, as the only claim of a highway is by user or prescription. Such highway is only as wide as the traveled track, with such additional width as will allow teams to pass each other where the line of travel will not permit it, or in any event not more than thirty feet wide, the narrowest limit of the Statutes of Illinois in force from 1827 to 1872. Hart v. Trustees, 15 Ind. 228; Warlow v. Thurston, 6 Cowen, 189; Central Law Journal, Vol. 7, page 125; Commissioners v. Harrison, 108 Ill. 400; Pearce v. Town of Gilmer, 54 Ill. 28; Alvord v. Ashley, 17 Ill, 363; State v. Shinkle, 40 Iowa, 131.
    But the part of the land where the fence was placed, if within the width of the road or right of way, was not an obstruction. It was never used for a highway and could not. be used for that purpose, henee there was no obstruction. Gebhardt v. Reeves, 75 Ill. 301; Old Town v. Dooley, 81 Ill. 255; Washburn on Easements, pp. 159, 196; Deggert v. Schenk, 23 Wendell, 447; McArthur v. Kelley, 5 Ohio, 150; Phifer v. Cox, 21 Ohio State, 248; Howard v. North Bridgewater, 16 Pick. 190; Bell v. City of Burlington, 27 N. W. Rep. 245.
    The authorities are all to the effect that the owner of the land has the right to use it within the limits of the highway, wherever such use will not interfere with the public use.
    Mr. John C. Pepper, for appellee.
   Baker, J.

This suit was by the Town of Hew Boston against Robert Scott, appellant, to recover the penalties imposed by Sec. 71 of the act in regard to roads and bridges in counties under township organization, in force January 1,1883, for obstructing a public road and suffering such obstruction to remain after he had been ordered to remove the same by the Commissioners of Highways of said town. Judgment was against appellant in the Justice’s court for §100 and costs, and on appeal to the Mercer Circuit Court, verdict and judgment were against him for §50 and costs.

The complaint was for obstructing a highway known as the Hew Boston and Millersburg road, at and near that part of it whore it crosses Winters Creek, on the farm owned by said Scott, by encroaching upon the same by building fences thereon, and by placing obstructions in the creek so as to throw the water against the end abutment of the bridge, thereby undermining the piling and abutments, soaking and washing the road and injuring the bridge and road. Ho objection was made in the courts below to the form of the summons. The written notice signed by the Commissioners of Highways which was served on appellant on the 5th dajr of May, 1886, ordered him “ to remove an obstruction in the public road at and near the bridge across Winters Creek, consisting of fences on east and west end of bridge in roadway; also poles and stakes set against piling of bridge, all on north side of bridge.”

The criticisms made by appellant upon the form of the complaint filed with the Justice are wholly unimportant, especially in the view we have taken of the case and of the fact that we decided in the case of the Town of Canoe Creek v. McEniry, 23 Ill. App. 227, that the rule applicable to prosecutions under the section of the statute in question was that no written pleadings are required, and that the allegations and counter allegations of the parties or their attorneys are presumed to be ore tennis, and that their rights depend on what is proved rather than what is said or pleaded.

The only evidence of the existence of the public road under consideration, is evidence of user, or right by prescription. It appears that it was a traveled road as early as 1838; that at first the creek was crossed by a ford on or immediately adjoining the site where the present bridge is located, and that the first bridge built there was constructed more than forty years ago.

The creek runs nearly north and south at the place where it is crossed by the bridge, and the road and bridge run nearly east and west. In the early days of the road the land on both sides of it east of the bridge was uninclosed. That part of appellant’s land which is north of the road and east of the bridge was inclosed more than thirty years ago by a fence running east to west to a point within eight or ten rods of the bridge and thence turning to the northwest and running to the creek at a point eight rods north of the bridge. The appellant changed that portion of the fence which was west of the point where the angle was, by throtving it south of its old line and running it from the point indicated directly to the creek, on a line with the old fence that ran east from such point, thereby making a continuous and straight line of fence on the north side of the road to the bank of the creek, the place where the creek was reached being sixteen feet north of the bridge, and there made a square turn in the fence and ran it to and connected it with the bridge; and then placed a flood-gate under tlie bridge and set stakes and pickets under it to form a line of fence across the stream. The evidence is conclusive that he had no authority or permission from the Commissioners of Highways, or any of them, to do any of these acts.

The bridge is sixteen feet and is approached by a wide filling or grade which is no wider than the bridge, said grade being at the bridge four and a half feet above the level of the natural ground and running out east to the natural level. Tiling had been placed by the Highway Commissioners north of tlie bridge and the filling and draining into the creek, and this tiling empties into the creek ten or twelve feet above the bridge, and the north and south fence crosses it in connecting with the bridge.

In approaching the bridge, or in going east after having crossed it, there is no travel on the triangular strip of ground inclosed by the graded approach to the bridge, the creek, and the fence of appellant on the north of the road as it was changed by him and extended to the bank of the creek at a point some sixteen feet north of the bridge. It seems that from the character of the grade and the proximity of the creek, this strip of ground can not he used and traveled over by those who pass and re pass upon the highway and bridge.

If appellee is right in his assumption that this road, established by user and prescription, except so far as it may be widened by actual user or by being fenced out as a road by the land owners, is only thirty feet wide, then he would seem from the evidence to be right in his contention that the fence which be constructed from the angle in the old fence and on a line therewith to the bank of the creek, was not and is not an encroachment upon the public highway.

This, however, does not answer the point that from the turn in the fence on the bank of the creek it was extended across sixteen feet, more or less, of the width of the road and connected with the bridge. JNTo claim is made that this north and south fence, or the greater part of it, is not upon the'public highway. The position of appellee, in this regard, is that he had a lawful right to turn his fence on the bank of the stream and run it to the bridge, even though it passed over a part of the width of the road in approaching the bridge, if in so doing he encroached upon the road only so far as was necessary to reach the bridge, and passed only over land that was not and could not be used by the public for travel.

Sec. 71 of the road law for counties under township organization, in force July 1, 1883, provides: “If any person shall injure or obstruct a public road by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon or by turning a current of water so as to saturate or wash the same, or shall leave the cuttings of any hedge thereon for more than ten days, they shall forfeit for every such offense a sum not less than §3 nor more than §10, and in case of placing any obstruction on the highway, an additional sum of not exceeding §3 per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by any of the Commissioners.” In speaking of this section of the statute, the Supreme Court in Boyd v. Town of Farm Ridge. 103 Ill. 408, says: “The object of the act was to prevent all obstructions of highways, whether total or partial, and in specifically pointing out such as might be caused by the building of fences; it was to the Legislature a matter of total indifference whether they might happen to bo built along or across the highway, for in either case there would be an obstruction.” In the case of Town of Canoe Creek v. McEniry, 23 Ill. App. 227, this court said: “ It is not specified in the enumerations that the acts must be done on the traveled portion of the road, or that they shall be done in such manner as to impede or interfere with the public travel in order to constitute the offense. If they shall be done or committed in or on the highway, it shall be sufficient to amount to an obstruction or injury. Within the limits of the highway the public is entitled to use any part of it for all purposes of a highway, to the exclusion of all other uses, except as permitted by the statute. If one commits the acts forbidden by the statute within its limits, the rights of the public are infringed upon by those acts, and the road is at least partially obstructed. If the statute be construed as suggested by appellee’s counsel, highways may be curtailed or narrowed to any extent less than their legal width by ditches and fences of adjoining land owners without fear of punishment, so lone as such parties can show that the road has not been impaired in its usefulness as a highway. Such could not have been the intention of the Legislature. The Commissioners of Highways have jurisdiction within the limits of a public road to the exclusion of others, except as permitted by law and for travel.”

Appellant relies upon the decision of the Supreme Court in Town of Old Town v. Dooley, 81 Ill. 255, as an authority to show his legal right to build his fence on the bank of the stream and across a part of the public road to the bridge and to connect it with said bridge. That decision was based upon the provision of See. 64 of the road and bridge law then in force, but was repealed in 1883, which in express terms gave to the adjoining land owners the rights in question, but with the qualifications that no necessary ford should be obstructed and that the connecting fence should be constructed by the consent and under the direction of the Commissioners of Highways. It was held by the court that in the ease mentioned the consent of the Commissioners was obtained and that there was a substantial conformity to the requirement that the fence should be built under the direction of the Com missioners. It is true the court said in their opinion, in a/rgumdo, that “ the statute goes but little, if any, beyond confirming in the owner of the land and regulating a right he held before its enactment.” This language may properly be regarded as an intimation that the statutory right did to some extent go further than the antecedent right enjoyed hy the owner of the fee. It will also be noted that in the opinion of the court no reference is made to the provisions of Sec. 58 of the road and bridge law then in force and which is in substance the same as Sec. 71 of the present statute. It would seem from the language used in this last mentioned section that the mere act of encroaching upon a public road by building a fence thereon is, of itself, and regardless of all other circumstances, an obstruction of such road. This appears to he the view taken of this section by the Supreme Court in the later case of Boyd v. Town of Farm Ridge, supra.

It may he true that the ground east of the creek and north of the graded approach to the bridge can not now be traveled over hy teams and carriages. It is, however, used by the Highway Commissioners for the purpose of placing tile drains thereon for the benefit of the public highways. In order to keep up the grade, maintain the ditches and drains, and keep the road and bridge in repair, this ground may now be, or hereafter become, absolutely necessary; and it is essential for the public welfare that the Highway Commissioners should have and retain full control of it.

If we are right in the views we have expressed, then it follows that the jury could not have properly done otherwise than find the defendant guilty. This conclusion reached, there is no necessity for the consideration of the other points made in the case. The judgment is affirmed.

Judgment affirmed.