text:
    The Michigan Life Ins. Co. v. Wm. H. Beaver.

      Negotiable Instruments—Non-Delivery as a Defense—Note—Agency— Conflict of Evidence—Question for Jury.

    1. Where the issue is one of fact, touching the delivery or non-delivery of a promissory note through an agent, the extent of his authority to contract is not involved.
    2. It is the province of the jury to decide questions of fact, and where the evidence is conflicting, this court will not interfere with their verdict.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. J. S. Ewing, for appellant.
    Messrs. Joseph W. Fifeb and Thos. F. Tipton, for appellee.
   Pleasants, J.

This was an action of assumpsit, brought by appellant upon a promissory note made by appellee, of February 8, 1886, for <jj>116.81, payable nine months after date to the order of appellant at the People’s Bank of Blooming-ton, claimed to have been given for an endowment policy of appellant on his life for §3,000. Pleas of non assumpsit and non est faotmn, both verified by affidavit, were filed, and there was a stipulation that any proper defense might be shown as if specially pleaded. Verdict and judgment for defendant.

The defense was that the note was never delivered; that it was left with F. A. Niles, plaintiff’s agent at Bloomington, upon an express agreement with him that it was not to be delivered to the company, but was to be held by him and paid out of certain commissions which were expected to accrue to the defendant in his hands, or, in default of payment by such means before or at maturity, to be surrendered to the defendant and his policy canceled. Appellee positively testified that such was the agreement; that Niles was to have him made a member of the local board of control of the company for McLean County, which would be entitled to a commission of fifteen per cent, on all new policies he should write, and of two per cent, on all the company’s old insurance in that county; that the board was not organized as promised; that in May or June following Niles removed from the county to Cedar Bapids, Iowa; that upon learning his residence defendant, on the ISth of October, 1886, sent him the policy and demanded the return of the note; that it was afterward sent by the company to an attorney at Bloomington for collection, and this suit brought thereon.

Niles denied that any such agreement or arrangement was made with him, and represented the transaction as in all respects legitimate in substance and regular in form.

The attorney referred to testified that after he received the note appellee promised him to pay it in certain installments specified, but this was denied by appellee, who stated that a proposition so to pay it was made to him, and distinctly de7 dined.

These questions of fact it was the province of the jury alone to decide, upon this conflict of evidence. They must have found them for the defendant, and with their finding, under the circumstances, we have no right, if we had the disposition, to interfere.

What we are to determine is whether the facts so found, without proof of notice thereof to the company, would constitute a good defense to this action. It does not involve any question as to the consideration of the note, or the right to vary its terms by parol, or the authority of Hiles to bind the company by such an agreement as is claimed to have been made, but simply whether the note sued on was delivered to the company by the maker or by his authority. Such delivery was necessary to make the promise obligatory upon him in favor of the payee, who brings this suit. Without it there is no contract between the parties. Whatever may have been the extent or limit of Hiles’ authority as agent of the company, and however well it may have been known to appellee, he is not bound except in the manner and to the extent he contracted to be, and not at all if he did not contract to be. The innocence of the company can not change the fact or the effect of delivery or non-deiivery, as the case may' be; and that such fact is provable by parol, and that non-delivery is a good defense in an action like this, are settled by many authorities, of which we cite only the cases in this State, of Biederman v. O’Conner, 117 Ill. 493; Jordan v. Davis, 108 Ill. 336; O. O. & F. R. V. R. R. Co. v. Hall, 1 Ill. App. 612. The judgment will be affirmed.

Judgment affirmed„

26


source: Caselaw Access Project

author: Conger, P. J.

license: Public Domain

text:
    Chicago & Alton Railroad Company v. George W. Hanley.

      Bailroads—Action for—Damages for Killing Stock.
    In an action against a'railroad company to recover damages for killing stock, it is error to instruct the jury that the law presumes the injury to have been caused by the failure to ring the bell or sound the whistle.
    [Opinion filed November 18, 1887.]

      Appeal from the Circuit Court of Macoupin County; the Hon. J. A. Creighton, Judge, presiding.
    Mr. Thomas Binaker, for appellant.
    There is no testimony from which it may be inferred that any failure to give the crossing signals caused, or even contributed, to appellee’s injury.
    The failure to ring the bell or sound the whistle must have caused the injury before the plaintiff can recover. R. R. L. & St. L. R. R. Co. v. Linn, 67 Ill. 109.
    In this case the court say: “ The only question in this case is whether the neglect to ring the bell or sound the whistle caused the injury,” (killing plaintiff’s horse), and hold ‘‘ the proof must show that the injury was the probable result of the omission.” See also, I. & St. L. R. R. Co. v. Blackman, 63 Ill. 117; Q., A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60; I. C. R. R. Co. v. Bull, 72 Ill. 537; C., B. & Q. R. R. Co. v. Hotzki, 66 Ill. 455.
    Mr. Mahlon Boss, foi-appellee.
   Conger, P. J.

This was an action brought against appellant for the value of a cow killed by its train in the City of Virden, Illinois, and must be reversed because of the error contained in appellee’s second instruction, which was as follows :

“2. The court instructs the jury for the plaintiff that railroad companies are, by law, required to cause a bell to be rung, or steam whistle whistled, continuously, on all locomotive engines, while running, approaching and within eighty rods of any public highway crossing, and that the public streets in cities, villages and towns are public highways; and if the jury believe, from the evidence, that plaintiff’s cow was struck and killed near a public crossing by a locomotive engine while running on defendant’s railroad in the City of Virden, within eighty rods of and approaching any public street crossing, and that no such bell had been rung or whistle sounded continuously from the time such locomotive came within eighty rods of such street crossing until the cow was struck, the law presumes the injury to have been done by the negligence of the railroad company, and these facts alone, if so proved and found, make the defendant prima facie liable to the plaintiff for damages to the full extent of the value of the cow as shown by the evidence.”

Tin's instruction is clearly wrong in stating that the law presumes the injury was caused by the failure on the part of appellant’s servants to ring the bell. The law presumes such failure to be prima facie negligence, but does not presume it to be the cause of the injury. Such latter presumption must be established by the facts and circumstances in evidence, and is to be found by the jury. R., R. L & St. L. R. R. Co. v. Sims, 67 Ill. 109.

“ The injury must be the result of the omission, and this must be found by the jury.” I. & St. L. R. R. Co. v. Blackman, 63 Ill. 117.

The judgment of the Circuit Court will be reversed and the cafcse remanded.

Heversed and remanded.


text:
    William J. Rutledge v. Mahala Stribling.

      Attachment in Aid—Service—Affidavit—Agent—Objection First Faised in This Court.

    1. Where the defendant is properly served in the original suit, jqo service is required in"an attachment in aid.
    2. Where the affidavit in attachment is made by an agent, it seems that he need not be so described in the affidavit. If such omission was a defect, the objection could not be first raised in this court.
    [Opinion filed November 18, 1887.]
    In error to the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.

      Mr. Oscar A. DeLeuw, for plaintiff.
    Messrs. Springer & Dummer, for defendant.
   Conger, P. J.

A suit in assumpsit was brought in the County Court of Morgan County by appellee against appellant and personal service regularly had upon appellant more than ten days before the first day of the term in January, 1887. Before the term began an attachment in aid of the suit in assumpsit was sworn out and the property of appellant levied upon. Appellant appeared, filed a demurrer to the declaration in the original suit, which was overruled, and judgment rendered nil dicif, and special execution ordered to" sell the property levied upon by the attachment.

It is insisted as there was no service upon appellant in the attachment suit, the awarding of the special execution was improper.

We hold that, as there was proper service in the original suit, none was required in the attachment in aid, the latter suit being a mere adjunct of the former and not a distinct proceeding. It is to be entitled in the pending suit and in aid thereof. The appellant being properly in court would be required to take notice of all that transpired in court, both in the original suit and the attachment in aid thereof. Attachment Act, Sec. 31 ei seq.j Schulenberg v. Farewell, 84 Ill. 400; Firebaugh v. Hall, 63 Ill. 81; Miere v. Brush, 3 Scam. 21.

It is objected that the affidavit for the attachment is made by one Burton, and that he is not described in the affidavit as the agent of appellee. To this objection it may be said the statute provides that such affidavit may be made by an agent, but does not in express words require that the fact of agency shall be stated in the affidavit; and even if such omission was a defect in the affidavit, it was but a formal one, which might have been remedied in the court below. And as appellant was properly in that court it was his duty to raise the objeci tion then, if he wished to rely upon it here.

The judgment of the Circuit Court will be affirmed.

- Judgment affirmed.


author: Coegeb, P. J.

text:
    Elijah McFarland v. Willard Washburn.

      Malicious Prosecution—Second Appeal—Reversal.
    Upon a second appeal, in an action for malicious prosecution, this court reverses the judgment for the plaintiff, the evidence being substantially the same as that which was held insufficient to sustain the former judgment for the plaintiff.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Vermillion County; the Hon. J. W. Wilkie, Judge, presiding.
    Messrs. J. B. Mane and F. Bookwalteb, for appellant,
    Messrs. B. C. Weight and H. P. Blaokbube, for appellee.
   Coegeb, P. J.

This was an action on the case for malicious prosecution. Upon a former trial the case was brought to this court and is reported in 14 Ill. App. 369.

Upon being reversed and remanded a new trial took place, resulting in a verdict and judgment in favor of appellee for $15, and appellant brings the record to this court and urges as grounds of reversal that it is substantially the same case now that it was when here before.

After carefully comparing the statement of facts as contained in the opinion heretofore filed in this court, and the evidence as shown by the record in the case now before us, we find it substantially the same case and same evidence. When a cause is reversed by this court for the reason that the evidence is not sufficient to sustain the finding of the court below, and upon a new trial it is again brought up for review, we shall adhere to the former holding, unless there is a substantial difference in the evidence introduced upon the two trials. The mere fact that upon a second trial the jury may have again found the same as upon the first trial, can not avail, unless we can see that they have had before them additional evidence, substantially different,¿and controlling in its character.

While some new evidence has been introduced in the present record it does not change the substantial features or merits of the controversy; but they remain as before; and under such circumstances we think the conclusion reached by this court when the case was formerly here should be regarded as conclusive.

The object of remanding causes when reversed by this court, when the evidence is insufficient, is to give an opportunity upon, a new trial, to supply, if possible, the deficiency, pot to enable parties upon the same or substantially the same evidence to appeal from the- decision of this court to another jury.

We think no good purpose would be subserved by remanding this cause for a new trial, therefore the judgment of the Circuit Court will he reversed.

Judgment reversed.


author: Wall, J.

text:
    Illinois Central Railroad Company v. Sally Neer.

      Railroads—Collision with Preceding Train—Rule—Death of Engineer —Risk of Employment—Liability of Master—Instruction—Comparative Negligence.

    1. Where, by the rules of a railroad company, an engineer is required to approach stations with great care, and is not entitled to notice that a preceding train is late, he must be presumed to have incurred the hazard and risk involved as an incident of the employment.
    2. Where a person knowing the hazards of his employment as the business is conducted, voluntarily continues therein without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless it is caused by the wilful act of the master.

      3. The doctrine of comparative negligence has no application where an unwise or injudicious rule of the master, well known and understood by the servant, produces a hazard which he is presumed to incur voluntarily as an incident of his employment.
    4. The fact, that an engineer is under instructions to make certain time, does not modify or dispense with a standing rule as to the care to be observed in approaching stations.
    5. It seems that the rule in question is wise and proper.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Champaign County; the Hon. O. B. Smith, Judge, presiding.
    Messrs. J. S. Wolfe and B. F. Ayer, for appellant.
    Messrs. George W. Gere and J. W. Langley, for appellee.
    “ It is the duty of a railroad company to adopt such rules and regulations for the running of its trains as would be reasonably safe, and if it has adopted such rules, then it must conform to them, or be responsible for the consequences resulting from a departure from them, unless it used reasonable care to avoid accidents which might occur from such departure.” C., B. & Q. R. R. Co. v. George, 19 Ill. 517.
    “When the movement of trains by telegraph is left to the . discretion of a division superintendent or train master it is his duty to so regulate their running time as to insure safety against collision.” C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 144.
    “ The peremptory order of the train master that the train must be brought through within a specified time, was an assurance that the track would be safe for the journey, and required the train master to take reasonable precaution to make it so.” Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 340.
    “As between servant and employer the latter is bound to use reasonable care in the prosecution of the business in which he engages the former, and it can not be made out upon principle, or from any cases of authority, that he shall not be liable for damages arising from a failure to do so.” Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 334; Flike v. The B. & A. R. R. Co., 53 N. Y. 554; Cone v. Delaware, etc., R. R. Co., 81 N. Y. 206.
    “Where the negligence of the company is the proximate cause of the injury, contributory negligence of a fellow-servant is no defense.” Grand Trunk Ry. v. Cummings, 106 U. S. 700; Stringham v. Stewart, 100 N. Y. 526; Cone v. D., L. & W. Ry., 81 N. Y. 208.
    “ The train master and-his assistants, in relation to train men, are vice principals. They stand in place of and act for the master. Their negligence is the master’s negligence.” C. B. & Q. R. R. Co. v. McLallen, 84 Ill. 109; Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 332; Darrigan v. N. Y.& N. E. Ry., 52 Conn. 285.
    “A master is always liable for negligence in respect to such acts and duties as he is required to perform and discharge as master.” Flike v. Boston R. R. Co., 53 N.Y. 553.
    “A master can not relieve, himself from damages occasioned by his own negligence by contract, either expressed or implied.” Lake Shore & M. S. R. R. Co. v. Sprangler, (Ohio) 8 N. E. Rep. 467; Kansas Pacific Ry. Co. v. Peavy, 29 Kas. 169; Railroad Co. v. Lockwood, 17 Wall. 357.
   Wall, J.

This action was brought by the administratrix of James A. Beer, deceased, to recover damages by reason of the death of said Beer. There was judgment for the plaintiff below for $5,000, from which an appeal is prosecuted by the railroad company. The deceased was a locomotive engineer, and came to his death by running into a train that was standing on the track at Savoy station. The two trains were going in the same direction but the forward train was some four hours behind time. The right to recover is predicated upon the fact that the deceased did not know this train was late; that he was using due and ordinary care, but did not discover the train in front of him until too late to prevent the collision and that it was the duty of the defendant to have notified him of the danger. The defendant insists, on the contrary, that according to its rules it was under no obligation to notify him of the lateness of the preceding train; that its rules in this respect are sound and justified by experience; that he was familiar with these rules and toolj the hazard of whatever risk or danger was involved in their application, and that the accident was primarily due to his negligence in not approaching the station with proper care as required by a very important rule which he well understood. That rule reads as follows : 6< All trains when approaching stations, must do so with great care, expecting to find some other train occupying the main track.” Had this rule been observed it is not probable the collision would have occurred.

There can be no reasonable doubt, from reading the evidence, that the deceased, from some cause not apparent, was unaware of his proximity to the station until he saw the red light of the preceding train, or, perhaps, the signal of a brakeman who started down the track with a lantern to stop him if possible. The only excuse for this failure of the deceased to know where he was, must be found in the condition of the atmosphere. It was a rainy and somewhat foggy day late in November, and there was probably some difficulty in keeping the glass of the cab clear and transparent. But, giving deceased the benefit- of the most favorable view to be taken of the matter, we are unable to find any justification for him on this branch of the case. If there was difficulty in keeping a good lookout so as to know whether there was a train standing on the main track, which he was bound to expect according to the rule just quoted, it was all the more important that he should know where he was, and have his train under such control that he might stop if necessary. He was familiar with the rules and with the road. He had often pulled the preceding train and he knew it was liable to be late. He had been late with it himself nearly as much as it was on this occasion, but a few weeks before, and he knew that he had no right to expect notice, and that he must depend on his own vigilance to avoid running into it if it was late.

It is said he was under instruction to make the run within a certain time, and that he was attempting to comply with this order. All trains are under instructions to make certain time, but that does not modify or dispense with the standing rule as to the care to be observed in approaching a station. There was, then, no fault on the part of the company in not giving him notice that the. preceding train was late, and that he might expect to find it in his way standing on the main track at some station.

There is in the record a considerable amount of proof to the point that, according to the experience and judgment of men whose experience and judgment should give their opinions great weight, the rule in force on this road is a sound one and is generally adopted by leading roads in this part of the country. In the judgment of these witnesses it is safer to require the men in charge of a train to look for and protect themselves against a preceding train, than to attempt to advise them from the office of the train master, because it is not possible to give the information on all occasions, owing to the various interruptions incident to the telegraph service, and the men, if relying upon getting it, might and ymuld frequently be caught where information is impossible; that men will thus relax their vigilance, and that the result will be more danger and more accident than under the system now in force. Whether this reasoning and these opinions should be adopted or not, there is, in this record, really no conflict in the evidence on the point as to the propriety of the rule, and if the practice of the appellant in this respect is to be condemned, it must be upon a conclusion reached independent of, and discarding the opinions of these expert witnesses. We think that neither the court nor jury has such knowledge of the subject-matter as to justify such a conclusion.

The operation of a railroad is by no means a simple task, and men who have adopted it as a business, and who spend their whole time in it, are better qualified to express an opinion upon a question like this, than those who are without experience in the premises.

But whether the rule is defensible or not, it seems to be generally adopted on first class roads, and the deceased was well aware of its existence. He knew it was in constant application, and if it involved hazard and danger he must be presumed to have voluntarily incurred the risk, unless under some recognized exception this well known principle may be ignored in cases like the present.

There1 appears to have been np promise by the company to change the rule, nor does it appear there was any coercion or other improper action by any of its agents or officers superior to deceased, whereby he was induced to take the risk against his own judgment or inclination, nor was there any wilful act of the master injurious to the deceased.

The record being in this condition, the court gave the following instruction, of which appellant complains:

££ The law requires of all persons the duty of exercising reasonable care and prudence for their own personal safety; this rule of law applied to James A. Keer in running his train; it was his bounden duty to give reasonable exercise to all his faculties of judgment, sight and hear'ng, to protect himself from accident and danger; he was bound to use his knowledge of the mode and manner of running and operating trains on the defendant’s road, and i there was any known, regular and systematic method of operating trains on the defendant’s road shown by the evidence, then ifeer would be charged with knowledge of such rules and method of so operating such trains, if the proof shows he was long enough on such road to have had opportunity to learn and know its rules and methods. And if the proof shows that the defendant’s regular method of running or operating its trains was a dangerous one, and liable to result in accident or injury to the employes, and if the proof shows that hTeer continued in the employment of the defendant, knowing that its method or system of operating. its trains was dangerous and hazardous and liable to involve wrecks and collisions, and if you believe from the evidence here, that the alleged collision complained of was one of the ordinary and probable hazards and results of such alleged dangerous method of running and • operating defendant’s trains, and if the alleged collision resulted in the death of Ueer, then, in that event of the proof, the plaintiff could not recover, unless the proof should show ISTeer’s negligence slight and that of the defendant’s negligence gross or wilful when compared with each other.”

In the case of Stafford v. C., B. & Q. R. R. Co., 114 Ill. 244, the Supreme Court announces it as well settled u that if a person, knowing the hazards of his employment as the business is conducted, voluntarily continues therein without any promise of the master to do any act to render the same less hazardous, the master "will not be liable for any injury he may sustain therein unless, indeed, it may be caused by the wilful act of the master.” The instruction was erroneous in that it left the jury to qualify the non-liability of the master in the case supposed by the doctrine of comparative negligence. That doctrine has no application where an unwise or injudicious rule of the master, well known and understood by the servant, produces a hazard which the servant is presumed to incur voluntarily as an incident of the employment.

It appears from the record that the collision caused the death of Beer not only, but of three others who were in the caboose of the forward train and were probably passengers. Botwithstanding the natural sympathy for those who have sustained loss by the death of the engineer, public policy demands that the lives of those who travel upon railroads be not imperiled by the negligence of men in charge of trains. To support this judgment is, in our view of the case, to put a premium upon the negligence of one who should have been careful and vigilant, not only for the protection of property in his care,-but for the safety of human life, his own included.

The judgment will be reversed and the cause remanded.

Reversed cmd remanded.


author: Congee, P. J.

text:
    Chicago and Eastern Illinois Railroad Company v. Alice Tilton.

      Bailroads—Personal Injury—Highway Crossing—Obstructions—Bate of Spieed—Ordinance—Instructions—Contributory Negligence.

    1. In an action, against a railroad company to recover damages for an injury received at a highway crossing, it is held: That the verdict for the plaintiff is sustained by the evidence; that instructions touching the growth of trees and a hedge on the defendant’s right of way, so as to obstruct the view of the crossing in question, and with reference to compliance with an ordinance as to the rate of' speed, were properly given, and that an instruction to the effect that certain facts made out a case of negligence, was properly refused.
    2. It would be improper for the court to instruct the jury as an absolute proposition of law, equally applicable in all cases and under all circumstances, that one attempting to cross a railroad track must first stop and listen to see if there be an approaching train. It is for the jury to determine from the facts of the particular case whether the plaintiff was guilty of negligence.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Yermillion County; the Hon. J. W. Wilkie, Judge, presiding.
    Messrs. Wm. Armstroeg and J. B. Maee, for appellant.
    Messrs. H. M. Steely and F. Bookwalter, for appellee.
    It is gross negligence on the part of a railroad company to run its trains through a town at a rate of speed prohibited by law. C. & A. R. R. Co. v. Becker, 84 Ill. 483; C. & A. R. R. Co. v. Engle, 84 Ill. 397; C., B. & Q. R. R. Co. v. Stumps, 69 Ill. 409; C., B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Wabash R. R. Co. v. Henks, 91 Ill. 406; L. E. & W. Ry. Co. v. Zoffinger, 107 Ill. 199; I. & St. L. R. R. Co. v. Peyton, 76 Ill. 340; T. P. & W. R. R. Co. v. Deacon, 63 Ill. 91.
    It was the duty of appellant to cause a bell to be rung or a whistle sounded continuously as they approached the crossing. If this contributed to injury of appellee, or by its use might have prevented it, the company is liable. T., W. & W. Ry. Co. v. Jones, 76 Ill. 311; I. C. R. R. Co. v. Benton, 69 Ill. 174; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 529; I. C. R. R. Co. v. Modglin, 85 Ill. 481.
    It was negligence in appellant to suffer the hedge to grow upon its right of way, obstructing the view of approaching trains. R. R. I. & St. L. R. R. Co. v. Hillmer, 72 Ill. 235; I. & St. L. R. R. Co. v. Smith, 78 Ill. 112; Dimick v. C. & N. W. Ry. Co., 80 Ill. 338; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 529; C., B. & Q. R. R. Co. v. Payne, 59 Ill. 541.

      The whole question of negligence is one of fact, for the jury to determine under all the evidence, and not for the court. I. C. R. R. Co. v. Haskins, 115 Ill. 300; C. & A. R. R. Co. v. Bonifield, 104 Ill. 224; C. & A. R. R. Co. v. Robinson, 8 Ill. App. 140.
   Congee, P. J.

The declaration in this case alleges that on the 25th day of August, 1886, at the City of Hoopeston, Vermillion County, the plaintiff was traveling in a buggy drawn by two horses, on Penn Street, which is a public street and highway within the corporate limits of the said Hoopeston, which highway crossed the defendant’s road; that plaintiff was traveling in said buggy westward on said highway, across the right of way of the defendant, using due care and caution, and just as said horses, drawing said buggjr, approached defendant's track, and just as their heads were about on a line with the east side of the main track of defendant’s road, a train of cars of defendant, drawn by a locomotive, approached said highway crossing from the south, which said locomotivo and train were negligently run and operated by defendant, that is to say, to wit: said train was running at a great speed, to wit, twenty miles per hour, contrary to the provisions of Sec. 1, Chap. 8, of the Eevised Ordinances of the City of Hoopeston. Said ordinance declares that it shall be un'awful for any railroad corporation to run a train along its tracks within the c rporate limits of Hoopeston, at a speed exceeding the rate of six miles per hour\ provided, that passenger trains may be run at the rate of ten miles per hour. Plaintiff further avers that no whistle was sounded by the engineer or fireman continuously before the train reached said crossing, as required by law, and that along the east line of defendant’s right of way, leading south from said crossing, there was growing a very high, wide-spread hedge, and a large number of tall trees; that by reason of defendant’s not sounding the whistle or ringing said bell, as required by law, and by reason of said train moving at such rate of speed, and" by reason of the obstruction caused by said hedge and trees, plaintiff did not know of the approach of said train, and by reason of the premises said horses became frightened and turned short around, upsetting the buggy and running away, throwing plaintiff out upon the ground, breaking her left arm and dislocating her left wrist, and otherwise injuring her person; which injuries caused her great pain and deprived her for five months from following the business in which she was engaged, to-wit, that of school teacher. That at said business she was able to earn §50 per month before she received said injury, and by reason of said injuries she was compelled to pay out and obligate herself to pay out large sums of money, to-wit, §200, in obtaining surgical and medical attendance, board, care and nursing; that the said plaintiff was greatly damaged by reason of said injuries being permanent, to her damage in the sum of §1,000.”

The second count of the declaration was the same as the first, except the additional allegation “ that the train in question was a special train and not running upon the time of any regular train, and that the train was carelessly and wilfully and negligently run, and that no bell was rung; that the said hedge extended for a distance of half a mile south from said crossing, thereby obstructing plaintiff’s view of defendant's track in the direction from which said train was approaching, and that hy reason of defendant’s negligently suffering said obstruction to grow along said right of way and obstructing plaintiff’s view, and also by reason of its failure to ring the bell or sound the whistle, plaintiff could not know and was wholly unaware of the approach of said train until nearly upon defendant’s track, and that by reason of the great speed of the train the plaintiff was unable to get away from defendant’s track until said train shot past.”

The plea of general issue was filed, and the trial resulted in a judgment in favor of appellee for §800.

The evidence is quite voluminous upon the speed of appellant’s train, whether the bell was rung or the whistle sounded, and as to the character of the obstruction to the view of appellee from the street upon which she was attempting to cross appellant’s road, caused by the hedge and trees standing upon appellant’s right of way, and, as usual in such cases, is contradictory; but we think, after a careful examination, there is no good reason to interfere with the conclusions reached by the jury upon the questions of fact.

Objection is made to instruction Ho. 1, given for appellee, which is as follows:

“ 1. The court instructs the jury that a railroad company has no right to permit or suffer a hedge row, trees or anything else to grow upon or overhanging its right of way to such a height as to materially obstruct the view of a highway or a street crossing, and in this case if you believe from the evidence that the defendant permitted or suffered the hedge row and tall trees in question to grow upon or along and overhanging their right of way to such a height and breadth as to materially obstruct plaintiff’s and her father’s view of the approaching train, and that by reason thereof plaintiff was injured, and that she and her father used due care and caution in approaching said crossing, then your verdict should be for the plaintiff.”

It is insisted that this instruction would prohibit a railroad company from placing obstructions along its right of way; such as stations, warehouses and other structures necessary for the transaction of its business. We do not think a fair construction of this instruction will make it subject to such an objection. It is speaking of things growing and would be understood by the jury as applying to the obstructions to which the testimony related, that is, the trees and hedge at and near the street crossing where the accident happened.

The second of appellee’s instructions is objected to because it states “that it is the duty of a railroad company whose road runs through a city, to run their trains while in the city at such a rate of speed as to have them under control, and be able to avoid injury to persons and property; and it is negligence on the part of a railroad company to run its trains through a city at a rate of speed prohibited by law.”

If the meaning of this instruction is, as contended by appellant, that the company must so run its trains as to avoid, under all circumstances and absolutely, injuring persons and property, then it can not be sustained. But we do not think this a reasonable construction.

The rate of speed allowed by the ordinances of the City of Hoopeston had been shown to the jury by the evidence, and one of the controverted questions was, whether appellant’s train, at the time of the accident, was running faster than the prescribed rule, and we think a jury would understand the language of the instruction as applying to injuries caused by a failure to comply with the ordinance.

Appellant complains of the refusal of the court to give the following instruction:

“8. It is not the exercise of ordinary care and prudence for a person to trot a team of horses directly onto a railroad crossing, where he knows the view of the track to be obscured, without making an effort by stopping, or listening, or otherwise, to ascertain whether a train is approaching, or whether it is safe to drive upon the track.”

While it is true this instruction was held to be a proper one in C. & N. W. Ry. Co. v. Hatch, 79 Ill. 137, still we think such holding has been very much modified if not expressly overruled in C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587, in which case the court say: “We are aware of expressions by this court, when passing upon the law and facts, and of like expressions by other courts of the highest respectability, that the failure of one approaching a railroad crossing to pause and look for the approach of trains, was such negligence as would, in the case then under consideration, preclude a recovery. But we are not prepared to say, as a matter of law, that a person approaching a railroad crossing, when there is nothing apparent to warn him of danger, and at which he knows a flagman is stationed whose duty it is to warn all persons of danger from running trains, is required to look elsewhere than to the flagman. * * * It may be, that in the particular case, a reasonably prudent and careful man would do more than observe the absence of the ordinary signal of the flagman; but if so, the facts and circumstances should be submitted to the jury to be considered by them in determining whether the party had, under all the circumstances, exercised ordinary care and caution to prevent injury.”

In L. S. & M. S. Ry. Co. v. O’Conner, 115 Ill. 262, the court uses the following language: “The court refused defendant’s sixteenth instruction which, in substance, declares that it was the duty of deceased to keep a constant lookout for his safety, and if they find, from the evidence, that at the time of the accident he was not keeping a lookout, and that the injury occurred, wholly, or in part)6from such omission, plaintiff can not recover. It is no doubt true that common prudence required the deceased to keep a constant lookout for his safety, but whether he did so or not was a question of fact for the jury, and not one of law to be determined by the court. The instruction, in effect, directed the jury that certain facts made out a case of negligence against the deceased which precluded a recovery, when it was the province of the jury to determine that fact for themselves from the evidence.

From these and other cases, in which the Supreme Court has said that it is improper for the court to tell the jury that any particular state of facts would or would not be negligence, we are at a loss to perceive how the court can declare to the jury as an absolute proposition of law equally applicable in all cases and under all circumstances, that one attempting to cross a railroad track must first stop and listen to see if there be an approaching train. The circumstances that would relieve one' from such a prudential and reasonable act may rarely occur, but if it is not always and under all circumstances a duty, then the particular circumstances of each case must determine whether the omission so to do would be negligence or not. We think the instruction was properly refused.

Finding no substantial error in the record, the judgment of the court below will be affirmed.

Judgment affirmed.


author: Cohger, P. J.

text:
    Doggett, Bassett & Hills Co. v. Edward Bates, for use, etc.

      Insolvency—Sale to Creditor—Reservation of Surplus—Chattel Mortgage—Attachment—Garnishment—Value of Goods—Competency of Witnesses.

    1. The sale and transfer by a debtor of his personal property to a creditor to sell and pay his debt, the debtor reserving the surplus, is in effect a chattel mortgage. It differs from an assignment to trustees for the payment of specific debts, with a reservation of the surplus to the assignor, as such surplus remains within the reach of other creditors by garnishee process or other proper proceeding.
    2. In the case presented, it is held: That the contract between the defendants and. the debtor is valid as a chattel mortgage; and that certain incompetent witnesses were improperly permitted to testify as to the value of the stock of goods in question,
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Piatt County j the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Thomas J. Smith, Flower, Bemy & Gregory and S. B Beed, for appellant. '
    Messrs. Lodge & Hustoh and Stubbs & Baird, for appellee.
   Cohger, P. J.

In January, 1886, Edward Bates, a merchant at Mansfield, in Piatt County, was in failing circumstances. He had already paid one creditor some 81,600, by permitting such creditor to take that amount from his stock of goods. On January 30th, D. P. Erwin & Company, creditors of Bates, by their attorney, were at Monticollo, the county seat, taking steps to attach the goods and property of Bates.

The attorney of appellants, who were also creditors of Bates, upon that day, the 30th of January, went to Mansfield to secure tlieir claim. He found the store closed, and after some negotiation the following contract was executed between Bates and appellants, Doggett, Bassett & Hills Company, through their attorney, T. J. Smith.

“ Doggett, Bassett & Hills Co., of Chicago, Illinois, has this day bought of Edward Bates, all his stock of goods, consisting of dry goods, boots and shoes, groceries, notions and all other articles of merchandise now contained in a store room on the west side of Jefferson street, in the Village of Mansfield, Illinois. Said store room or building known as the J. W. Walker building. And as a consideration therefor I acknowledge the receipt and full payment of the sum of $1,288.03. And the said Doggett, Bassett & Hills Co. agree to pay to said Edward Bates whatever net sum of money tha can be realized from the sale of said stock, either by retail or otherwise, which may he considered the most judicious by the said Doggett, Bassett & Hills Co., after the said Doggett, Bassett & Hills Co. shall have fully paid all expenses, costs, charges and outlays which may be incurred in reducing said stock to cash. Said costs, charges and expenses shall include reasonable attorney’s fees in case of litigation. It being the intention to account to said Bates whatever said stock shall bring by the sale of the same as aforesaid, over and above the sum of $1,288.30, and the said expenses, costs and charges as aforesaid.

Edward Bates,
Doggett, Bassett & H’lls Co.,
By T. J. Smith.
Attest: J. W. Walker,
January 30, 1886.

Appellants were served as garnishees in the attachment suits of D. P. Erwin et al. They answered, setting up their purchase under the foregoing contract; that they had immediately taken possession of said stock of goods, sold and reduced the same to cash, and that after the payment of the necessary expenses of such sale, and the sum of $1,288.03 due them from Bates, there remained in the hands of Smith, their attorney, the sum of $197.16.

A jury was waived and trial had by the court, and judgment rendered against appellants, as such garnishees, for $2,500.

Upon the question of the value of the stock of goods the court permitted, against objection, witnesses to testify who were clearly not qualified. One of these witnesses will suffice' as an illustration: John Bibie stated u that he resided at Mansfield; had been constable for a long time; had loafed around stores a good deal; have levied on and invoiced goods before; was in Bates’ store and seen stock; helped Walker take his stock out, and saw prices on some of the goods Walker got; saw no prices on any goods left in the store; I guess there was about $6,000 worth of goods.”

While questions of quantity and value are generally merely matters of opinion, still those expressing an opinion thereon should first show that they have such knowledge and experience in reference to the subject under inquiry as to give their opinions greater .weight and value than mere guesses. We think a number of witnesses were permitted to testify upon the question of value who, under the most enlarged and liberal rule, were not competent.

The next point we shall notice is as to the validity of the contract of purchase. Upon this question the following proposition of law was submitted to the court, and refused: ie The court holds that the contract of purchase in evidence in this case, on its face, is a valid contract.” The Circuit Court, therefore, ignored entirely the claim of appellants to deduct their debt against Bates from the proceeds of the sale of the goods, but in its judgment required them to account without reference thereto. This we think was error. The contract of sale was, in fact, a chattel mortgage, and was in no sense an assignment for the benefit of creditors; hence, the provision contained in it that any surplus remaining in appellants’ hands after the payment of their own debt and the expenses of the sale should be returned to Bates, is no more than would be implied by the law, and does not vitiate the instrument.

Possession having been taken of the property before any liens attached, their title was as complete as though the instrument possessed the form of a chattel mortgage, and had been acknowledged and recorded in accordance with the statute.

This subject is so fully discussed in Jones on Chattel Mortgages, Sec. 352, that it is on'y necessary to quote his language, which is largely copied from McClellard v. Iterasen, 36 Barb. 622, and is as follows:

“ An assignment by a debtor of his personal property to a creditor upon trust, to sell and pay his debt, with a reservation to himself of any surplus there may be, is, in effect, a mortgage. The reservation of the surplus is only an expression of what the law would imply without a reservation, and is no evidence of a fraudulent intent. Such an assignment is to be distinguished from an assignment to trustees for the payment of specific debts, with a reservation of the surplus to himself. The surplus is always within the reach of the other creditors, and can, by a creditors’ bill, or proceedings supplementary to the execution, be attached and appropriated to the payment and satisfaction of their debts. Such a disposition of a debtor’s estate is, therefore, free from the weightiest objections against assignments upon trust to third persons for the payment of debts. There is no trustee interposed between the creditors and the property of their debtor. The assignee does not acquire the entire legal interest in the property conveyed subject to the trust, but a specific lien upon it; and the property is still subject to the process of the courts, and may, subject to the mortgage creditor, be devoted to the satisfaction of the other creditors’ debts.” To the same effect see Leitch v. Hollister, 4 N. Y. 211; Dunham v. Whitehead, 21 N. Y. 542; Wilson v. Russell, 13 Md. 494; Henshaw v. Sumner, 23 Pick. (Man.) 446; Davidson v. King, 47 Ind. 372; Godchaux v. Mulford, 26 Cal. 316; Gage v. Cheesebro, 49 Wis. 486.

Treating this contract of sale as a mortgage, no wrong, either legal or equitable,is done any one. Bates had a right to pay or secure appellants though it took every dollar of his property and left his other creditors with nothing. Appellants had but a lien to secure their debt, and the goods subject thereto could at all times be reached by the other creditors of Bates. If appellants converted the goods into money, any surplus remaining in their hands after their own debt and proper expenses were paid, could also be reached, and if they negligently wasted the goods and failed to do their duty in selling them, they would be answerable for any loss occasioned thereby.

The Circuit Court should have ascertained, by competent evidence, what amount the appellants realized or might have realized from the sale of the goods, by the use of ordinary and reasonable care in selling them, credited them with their debt and all necessary and proper expenses, and required them to account for the surplus, if any.

Counsel for appellees cite Selz, Schwab & Co. v. Evans, 6 Ill. App. 466, as holding a contrary doctrine to the views herein expressed. There are some differences between the contract of sale in that case and the one under consideration, but if it is intended to hold in that case, when a debtor conveys directly to his creditor property to secure him, and reserves to himself any surplus there may be after the debt is paid, that ■such reservation of itself and alone makes the instrument void upon its face, we do not think it is sustained by the weight of authority.

We think there is nothing in the third error assigned, He., that any excess or surplus in the hands of the garnishees can not he reached in this proceeding. If we are correct in holding that the contract of sale was in fact a chattel mortgage, it follows necessarily that appellants would legally owe Bates any surplus remaining in their hands, and as to such surplus, could be required under proper proceedings to account for it to his creditors. .

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

Reversed <md remanded,


text:
    Thomas F. Harwood et al. v. Emma C. Cox.

      Mortgages—Foreclosure,—Sale—Motion to Set Aside—Costs—Rights of Purchaser from Accepted Bidder—Writ of Error by One Not a Party.

      1. A sale made under foreclosure proceedings may be set aside on motion made within a reasonable time, where it ¿appears that' the purchaser has made no payment, that no duplicate of the certificate of purchase has been filed for record, that it is doubtful whether such certificate has been delivered to the purchaser except for examination, and that no report of the sale has been made to the court.
    2. One who has purchased from the accepted bidder at a' master’s sale before a duplicate of the certificate of purchase has been filed for record, and before the confirmation of the sale, can not object to the subsequent action of the court in approving or disapproving the sale.
    8. One who is not a party is not entitled to a writ of error to bring a cause before this court for review.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Herrick, Lucas <& Spencer, for appellants.
    Emma C. Cox had no such interest in the premises as to give her a standing in court to make a motion to set aside the sale. Shaw v. Lindsey, 46 Ala. 290; Miller v. Carnol, 22 Ark. 274. She was, of course, ”a defendant, but had no present interest in the premises, only a contingent dower interest.
    After the expiration of the time of redemption and deed made, and after conveyance of the premises to an innocent third person, the court had no power on mere motion to set aside the sale. Jenkins v. Merriweather, 109 Ill. 647; Meacham v. Sunderland, 10 Ill. App. 122.
    Whatever form of proceedings might be instituted to set aside the sale, all parties in interest should be before the court. Roberts v. Clelland, 82 Ill. 540.

      In this case no question is or can he made as to the validity of the decree, and in such case, “ upon principles of universal ¡aw, acts performed and rights acquired by third persons un ler the authority of the judgment or decree must be sustained.” Gaudy v. Hall, 36 Ill. 315; Hobson v. Ewan, 62 Ill. 146; Fearin v. Fleming, 56 Ill. 457; Borer on Judicial Sales, Secs-564 and 576.
    Messrs. Williams & Cap un, for appellee.
    The authorities all concur that judicial sales are sales by the court. It matters not to the contrary, that it is made through the instrumentality of a master, commissioner or other fono, tionary appointed thereto by the court; it is not valid or billing, and confers no right to the property sought to. be sold until confirmed by the court. By such confirmation it is judicially made the act of the court. Borer on Judicial Sales, Sees. 1, 4, 5, 7, 8, 11, 29, and numerous cases cited; Bozza v. Rowe, 30 Ill. 198; Dills v. Jasper, 33 Ill. 262; Jones on Mortgages, Secs. 1608, 1637.
    A Sheriff’s sale under an execution is not a judicial sale. Borer on Judicial Sales, Secs. 2, 9, 13, 16, 22, 26; Young v. Keogh, 11 Ill. 642.
    Until the report of sale is confirmed by the court, the whole proceeding is pendente lite, and within its supervision and discretion. Borer on Judicial Sales, Secs. 18, 25, 27, 28, 5901 and authorities supra.

    Mr. Whitbeck acquired his rights entirely dependent upon the confirmation of sale. Until that time everything was in fieri and merely interlocutory, and any deed under it and all subsequent transfers were liable to be defeated by the setting of it aside. Southern Bank of St. Louis v. Humphrey, 47 Ill. 227; Martin v. Gilmore, 72 Ill. 193.
    It is the duty of a court to protect jealously all rights of a surety, one of which is, to have securities exhausted for his protection; and another is, when he. pays a debt to be subrogated to the security. Hall v. Hoxsey, 84 Ill. 616; Phares v. Barbour, 49 Ill. 370; City National Bank v. Dudgeon, 65 Ill. 11; Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. School Trustees, 46 Ill. 428; Beaver v. Hanker, 94 Ill. 175.
   Conger, P. J.

This record presents an appeal from an order of the Circuit Court of McLean County, setting aside a master’s sale under foreclosure proceedings.

There is also an attempt on the part of Whitbeck to present the same questions by writ of error. He, not being a party to the proceedings below, we think, is not entitled to such writ, and it will therefore be dismissed.

It appears that a decree of foreclosure had been rendered against Mrs. Cox and her husband upon three mortgages executed by them, providing for a sale by the master, and that the master should execute and deliver to the purchaser a certificate of purchase, file a duplicate thereof in the recorder’s office, make a report of such sale, and, in case the premises were not redeemed according to law, execute a conveyance.

At the sale appellant, Thomas F. Harwood, who was one of the mortgagees and also one of the complainants in the foreclosure proceedings, became purchaser, and afterward his attorney, Mr. Lucas, came into possession of the certificate of purchase executed by the master, but whether it was delivered absolutely or only conditionally, is not entirely clear. After the expiration of fifteen months from the sale, Harwood presented his certificate to the successor of the master who made the sale, received a deed for the premises, and afterward conveyed them to Whitbeck.

The' costs of the ease were never paid to the master, no duplicate of the certificate of purchase was ever filed or recorded, and the master has never made any report of such sale to the court.

The time of redemption expired on the 2d day of August, 1886, and on the 6th day of November following, appellee entered her motion to set aside the sale, upon which motion the court entered the following decree:

“ That Thomas F. Harwood had become, by purchase, the owner of that part of the decree in favor of the Massachusetts Mutual Life Insurance Company, but had the same assigned to W. S. Harwood, and also of that part of the decree in favor of Winslow, and that the attorney of Harwood directed the master to advertise and make the sale, subject to the decree in favor of the insurance company, and solely under that part of the decree entered under the cross-bills in favor of Harwood and Winslow, and that the sale was so advertised and made by the master; that the sale was never reported to the court by the master nor any one else, for the reason no costs had been paid to him, and that he never filed the duplicate of purchase to be recorded; that nothing has ever been paid by the master on said sale, and that no appropriation has been made in any way of the purchase money by receipts in the decree, or in any other way; that at the sale said Harwood became the purchaser, but that he has never paid his said bid nor any part thereof, nor ever credited it on any part of the decree; that at the end of fifteen months from the said sale a certificate of purchase on said sale was presented to the successor in office of the master who made the sale, and a deed from him demanded, and that he made a deed in ignorance of all the facts, except what was shown on the face of the certificate of purchase; that the first time this court had cognizance of the matter was when the present master reported said deed for approval, and upon such presentation said Emma Cox opposed the approval of the report of the deed, and entered her motion to set aside the sale. The court finds that the said sale is not in accordance with the decree, but, on the contrary thereof, is in direct violation thereof, and is therefore null and void. It is therefore adjudged, considered and decreed by the court that the pretended sale and proceedings thereunder and in any way connected thereunto, and the said deed made by the said master, be set aside, vacated, canceled and held for naught.”

We think the evidence contained in the record fully sustains the findings of the court below, and the question presented is whether, under such a state of facts, thq court, on motion, was authorized to set aside the sale.

It is insisted by appellant that the case of Walker v. Schum, 42 Ill. 462, is authority for the proposition that in all cases, after the expiration of the time of redemption, and after deed made, and after conveyance of the premises to an innocent third person,' the court has no power, on mere motion, to set aside the sale.

In that case, which was an action of ejectment, one of the deeds offered as evidence of title was a master’s deed under foreclosure proceedings, and the only objection raised to its introduction was that the sale had never been reported, or confirmed by the court, and the Supreme Court say : “The mere fact that the master-lias failed to report at the next term after the sale, is not ground for setting aside such a sale.”

We do not understand, however, that the Supreme Court by this opin’on, rendered in a collateral proceeding to the foreclosure, intended to overrule the doctrine so clearly announced in Garrett v. Moss, 20 Ill. 549, of the general powers of the chancellor.to affirm or disaffirm, when good grounds appear for so doing, a sale made by the master under a decree, when the sale is reported. In that case the court say: “It is not to be doubted that the chancellor in this State, as elsewhere, has a large discretion, limited only by sound and equitable considerations, in the approval or disapproval of sales made by his master. The accepted bidder at a master’s sale acquires no independent right to have his purchase completed, but is nothing more than a preferred bidder, who proposes for the purchase of the property, depending upon the sound, equitable discretion of the chancellor for a confirmation of the sale by his ministerial agent. Freeman v. Hunt, 3 Dana, 614; Campbell v. Johnson, 4 Dana, 186; Owen v. Owen, 5 Humph. 355. In determining this discretion a regard to the stability of judicial sales has necessarily a large influence. This policy has rejected here the practice of refusing the bidding on an offer of an advanced price. But a higher policy, that of maintaining the purity of decretal sales and of preserving the public confidence in their entire fairness, must prevail over the policy of giving stability to them. And when there has been fraud, accident, mistake or unfairness in the sale, the chancellor should not hesitate to withhold his approval of the sale, by his commissioner.” To the same effect see Borer on Judicial Sales, Sec. 1, 4 and 5 et seq.; Jones on Mort., Sec. 1608, 1637.

In the present case no duplicate of the certificate of purchase was ever filed for record, as required by the decree of sale and the express provision of Sec. 7 of Chap. 77, B. S.

The filing of the duplicate for record is to give notice to the defendants in the decree, and all others interested therein, of the sale and the date when the time for redemption expire „ and we regard the compliance with the provisions of the statute as an important element in determining whether the sale shall be approved or not.

We hold that when a motion is made within a reasonalfie time, as it was in this ease, to set aside the sale, and it appears to the chancellor that the purchaser has never paid anything upon the sale, that no duplicate of the certificate of purchase has been filed for record, and when it appears doubtful whether the certificate of purchase has ever been delivered to the purchaser, except for the mere purpose of examining into the amount of costs charged, and no report of the sale has ever been made to the court, it is clearly within the power of the chancellor upon motion to vacate and set aside the sale.

When Whitbeck purchased from Harwood he had constructive notice that no duplicate had been filed for record, and that the sale had never been confirmed by the court, and lie was, therefore, in no condition to object to the court’s approving or disapproving the sale as might be right and equitable. The decree of the Circuit Court will be affirmed.

Decree affirmed.


author: Pleasants, J.

text:
    School Directors v. Alfred E. Ewington.

      Schools—Alleged Wrongful Discharge, of Teacher—Contract—61 Satisfaction "—Good Faith—T 49, Chap. 122, Starr & G. III. Stat.

    In an action by a school teacher to recover damages for an alleged wrongful discharge under a contract to teach for a specified time, “ provided he gave satisfaction,” it is held: That, by the special provision in the contract, the Directors reserved the right to determine what was required to give satisfaction, not limited by the provisions of the statute, but only by the obligation so to determine in good faith and without passion, prejudice or caprice; and that the question of how serious plaintiff's faults were, can not be considered, except as bearing upon the question of good faith.

      [Opinion filed November 18, 1887.]
    Appeal from the County Court of Morgan County; the Hon. C. P. Thompson, Judge, presiding.
    Messrs. Brown & Kirby, for appellants.
    Messrs. Julian P. Lippincott and J. W. English, for anpellee.
   Pleasants, J.

This suit was commenced by appellee before a Justice of the Peace and taken by appeal to the County Court, where, upon trial without a jury, he obtained judg. ment for §200 on a contract to teach the district school for eight months at §40 per month.

The proof is that the agreement on the part of the Directors was to pay him at the rate and for the time stated, “ provided he gave satisfaction;” and that they discharged him at the end of the second month.

It is argued for appellee that this condition conferred no further right than was already given by the statute to discharge for any of the causes therein specified, but no other; that he was entitled to notice of the complaint against him, with reasonable opportunity to make his defense, and to be acquitted and hold his position unless proof was adduced sufficient to sustain it.

The statute specifies “ incompetency, cruelty, negligence and immorality,” and adds “or other sufficient cause;” and to justify a dismissal under this power the Directors should be prepared to show, not in the prosecution of a complaint against the teacher, but in defense of a suit of this character, that the cause alleged was, in fact, sufficient.

But it is conceived that a teacher might be richly endowed with the virtues that stand opposed to the vices so specified and yet be a very undesirable person to have in charge of a district school; as, for example, by reason of his personal manners.- And it is our opinion that the special condition in this contract was intended, and had the effect, to reserve to the Directors the exclusive right to determine what was required to give satisfaction and whether it was, in fact, given by appellee, limited only by the obligation to do it in good faith and not fr.ommere passion, prejudice or caprice.

It appears that they observed some faults in him and his methods, and were informed of others, some of which were of the character specified in the statute, and others perhaps not. But h'ow serious they were, or how far the evidence went to prove them, was not for the court to consider, except as bearing upon the question of good faith in discharging him. We discover nothing in the record fairly tending to show they acted otherwise than honestly, in the supposed interest of the school and district. Appellee was paid for the time he served.

Some other questions are made in the argument which it is unnecessary to notice. If we are right in the view above taken, the finding by the County Court was against the law and the evidence, and the judgment will, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    Emma L. Magill et al. v. The De Witt County National Bank.

      Chattel Mortgages—Assignment.—Sale, under Execution—Injunction— Equitable Assignment of Mortgage—Subrogation.

    1. Where mortgaged property has been sold under execution and the proceeds p.iid over to the judgment creditor and such creditor has been required to pay the amount secured by the mortgage into court for the benefit of the mortgagee, in proceedings under a bill to restrain the mortgagee from interfering with the sale, the court may equitably assign and transfer the mortgage to the complainant with the same effect as if made by the mortgagee.
    2. In the case presented, as the complainant had been required to pay a judgment for the proceeds of the sale in favor of the vendee of the mortgagor, it was proper to require her to pay to the complainant the amount secured by the mortgage.

      [Opinion tiled November 18, 1884.]
    Appeal from the Circuit Court of DeWitt County; the Hon. G. W. Herdman, Judge,- presiding.
    Messrs. Moore & Warner, for appellants.
    While the DeWitt County National Bank might pay the debt due John Warner, in the supposed interest of its junior lien on the mules, it had no right to demand or have, under any circumstances, the note and chattel mortgage held by him. Flachs v. Kelly, 30 Ill. 462, 472; Handly v. Munsell, 109 Ill. 362; Ellsworth v. Lockwood, 42 N. Y. 89; Butler v. Taylor, 5 Gray, 455; Lamson v. Drake, 105 Mass. 564; Lamb v. Montague, 112 Mass. 352; Jones on Mortgages, Sec. 792.
    And the alleged offer to pay the John Warner debt, being coupled with the condition that he surrender and deliver to the appellee the note and mortgage held by him, was not good as a tender', and appellee acquired no rights under it. A tender to be good must be made without condition. Pulsiver v. Shepherd, 36 Ill. 513, 517; Holton v. Brown, 18 Vt. 224; Thayer v. Brackett, 12 Mass. 450; Wood v. Hitchcock, 20 Wend. 47; Sanford v. Buckley, 30 Conn. 344; Roosevalt v. Bank, 45 Barb. 579.
    Mrs. Magill might lawfully receive'the mules in satisfaction, cr part satisfaction, of her debt, though the debtor was insolvent at the time, and other equally meritorious creditors were thereby prevented from collecting any part of the amounts due them. Gray v. St. John, 35 Ill. 222; Butters v. Haughwout et al., 42 Ill. 18; Wells v. Miller, 37 Ill. 276; Hessing v. McCloskey, 37 Ill. 341; Waterman v. Donalson, 43 Ill. 29; C., B. & Q. R. R. Co. v. Watson et al., 113 Ill. 195; Foster v. Magil supra.

    An intermeddler, stranger or volunteer can not pay the secured debt of a third person and then be subrogated to the rights of the creditor in the securities. Suppiger v. Garrels et al., 20 Ill. App. 625; Bayard v. McGraw, 1 Ill. App. 141; Falls v. City of Cairo, 58 Ill. 403; Bishop v. O’Conner, 69 Ill. 431; Lewis v. City Bank, 72 Ill. 543; Beaver v. Slanker, 94 Ill. 175; Acer v. Hotchkiss, 97 N. Y. 393; Sanford v. McLean, 3 Paige Ch. 117; 7 Wait’s Actions and Defenses, 402 to 405.
    Messrs. George B. Grahm, B. A. Lemoe and James Ewieg, for appellee.
    Appellee had a right to have the note and chattel mortgage to John Warner turned over to the court, on payment of the note; and the court had the right to compel Mrs. Magill to return the money thus paid by appellee.
    A junior incumbrancer or lienor of personal or real property has a right to pay the prior lien for the protection of his own, and be subrogated to all of the legal and equitable rights of the prior incumbrancer. Armstrong v. McAlpine, 18 Ohio, St. 184; Jones on Chattel Mortgages, Sec. 658 and 659; Sheldon on Subrogations, See. 12, 15, 21 and 77; Muir v. Berkshire, 52 Ind. 149.
    And a party thus subrogated has both the right of property and possession, and can maintain trover against subsequent lienors. Hosier’s Appeal, 56 Penn. St. JR. 76; Lewis v. Palmer, 28 N. Y. 271.
    It seems to us very clear from the foregoing, and the authorities therein cited, that appellee was entitled to the possession of the note and mortgage on the mules held by Warner, and therefore had a right to attach the condition to the tender, that said Warner deliver up to appellee the securities held by him. A very full discussion of the principle herein revolved may be found in the cases of Blunt v. Tomlin, 27 Ill. 93, and Clark v. Weis, 87 Ill. 438.
    The leading case cited by appellant, Hanley v. Munsell, 109 Ill. 362,"is a case in point for appellee. The demurrer to the cross-bill was sustained because the complainant therein, the subsequent purchaser, failed to bring into court the money he claimed to have tendered in order to discharge the prior incumbrance, and the court say: c‘Had complainant brought the money into court in compliance with the original bill, and asked no release except as to his co-defendants, it might be the court would have kept the mortgage and indebtedness thereby alive for him until he could have litigated the matters in contention between himself and his co-defendants.”
   Conger, P. J.

The essential facts necessary to an under, standing of this case are as follows:

On the 7th of September, 1883, James De Land and Thomas Snell were the owners of eighty-eight head of mules. On that day De Land, desirous of raising money upon his interest in the mules, procured his son-in-law, Wilbert H. Wheeler, and his daughter, Emma L. Magill, appellant, to execute a note to John Warner for $2,700, which sum was borrowed from Warner and used by De Land. A chattel mortgage was also executed and delivered to Warner at the same time to secure the note of Wheeler and Magill.

Soon after this the mules were divided between De Land and Snell, each taking forty-four as his individual share, and on November 30, 1883, De Land executed to his daughter, Mrs. Magill, a bill of sale for the mules, conveying them to her, subject, however, to the chattel mortgage previously executed to Warner. The mules were then taken by Wheeler as agent of Mrs. Magill to Macon County to be fed and cared for.

On the 6th day of December, 1883, appellee, in the DeWitt. Circuit Court, recovered a judgment against De Land and others for $1,765.80, upon which judgment an execution was issued directed to the Sheriff of Macon County, who was appellant Poster, with directions to him to levy upon the De Land mules. Foster refusing to do so without indemnity, appellee gave him the necessary indemnifying bond, and the levy was made on January 17, 1884, and the mules were afterward sold under the execution for $3,878, which sum, after the expenses were deducted, was paid over by the Sheriff to appellee upon its judgment.

On January 28, 1884, Mrs. Magill, claiming to be owner of such mules, brought her action of replevin in the Circuit Court of Macon County against Foster for their recovery, and on May 17th filed a declaration in trpver in ¡aid suit, and on; June 24,1884, recovered a judgment against Foster in her action of tro ver'for $3,955.50, which judgment was afterward affirmed both in the Appellate and Supreme Courts.

On the 7th day of February, 1887, an execution issued upon this judgment against Foster, and he at once paid the full amount thereof, i. e., $4,575.92 to Mrs. Magill, and afterward, in the DeWitt County Circuit Court, brought suit against appellee upon the bond of indemnity previously given him, but before this suit was tried appellee paid to Foster $4,724.29, being the amount paid by Foster to Mrs. Magill, with all interest and costs.

The original bill in this ease was filed January 25,1884, for the purpose of enjoining John Warner from interfering, by virtue of his chattel mortgage, with the possession of the mules while in the hands of Sheriff Foster.

It would seem no good purpose to follow the history of the various amendatory bills and cross-hills by which the foregoing facts together with all parties in interest were brought before the courts.

During the pendency of these chancery proceedings, and on August 29, 1884, John Warner entered his motion for an order up>on appellee to deposit with the clerk of the court the $2,700 before that time tendered by appellee to Warner in payment of Ms chattel mortgage, which motion was allowed by the court. The appellee paid the money into court, and Warner deposited the note and chattel mortgage with the clerk of the eourt, and on September 2d, on motion of Warner, the money was paid to him, the court retaining the possession and control of the note and chattel mortgage, until the final hearing of the case, to be dealt with as justice and equity may require.

Upon a final hearing the eourt found: .

“That at December term, 1883, appellee recovered a judgment against Thomas Snell, James T. Snell and James De Land for the sum of $4,765.80.

“ That on January 16, 1884, execution issued on the judgment directed to Foster, then Sheriff of Macon County, to execute, and he levied it upon forty-four mules as the property of De Land.

“ That on September 7, 1883, Wheeler and Magill made to John Warner their note for $2,700, with eight per cent, interest after due, due eight months after its date; and Wheeler and De Land made to Warner a mortgage on said forty-four mules to secure the same.

“ That the note and mortgage were given for money borrowed for De Land, and to secure Magill and Wheeler for signing the note, and the mules were turned over to Wheeler to be held and sold by Mm for the purpose of paying the note.

“That on January 25, 1884, appellee tendered John Warner $2,700, being the full amount then due on said note, which sum he refused to accept, and proceeded to take possession of the mules by virtue of his mortgage, but was restrained from doing so by this court.

“ That on November 80, 1883, De Land sold the mules to Emma L. Magill, subject to the mortgage, which she assumed, and agreed to pay as part of the purchase price of the mules.

“That on the 28th day of January, 1884, Mrs. Magill commenced a replevin suit in the Circuit Court of Macon County against Foster (Sheriff), to recover possession of the mules, and filed her declaration in trover, the Sheriff having previously sold the mules under the execution for $3,878, and paid the sum, less costs of sale and expenses, including keeping the mules ($349.95), to complainant; that she obtained a judgment against Foster for $3,955.56, being the full value of the mules. That on the date of the judgment, June 26, 1884, Foster proseexxted an appeal to the Appellate Court, and then took it to the Supreme Court by writ of error, and in both courts the judgment of the Circuit Court was affirmed.

“That on motion of John Warner, the owner of the note and mortgage, this $2,700, which the appellee offered in exchange for said note and nxoi’tgage, was brought into open court and deposited with the clerk, and thereupon John Warner brought the note and mortgage into open court and deposited the same with the clerk as a condition precedent required by the court to the payment to him of the money so deposited, and moved the coxirtto order the money to be paid over to him, which the coux-t did, and he received and receipted for the same. Appellee then moved the court that the note and mortgage he delivered to it, which the court denied, but retained the same in its custody until the final hearing hereof, to be dealt with as justice and equity requires.

“And the court finds, inasmuch as John Warner freely deposited the note and mortgage with the court, without restriction or conditions, upon consideration of the money being turned over to him, and the court having retained the same and heard the cause, that the complainant be subrogated to all the rights and privileges of John Warner in and to said mortgage so far as said mortgage lien on said property is concerned, and, as to that, complainant stand in his place and stead, the same as if he had retained the same, and that the mortgage on the mules and the proceeds thereof be held to still subsist .and exist on the proceeds of the same in the hands of Emma L. Magill.

“That on February 7, 1887, execution issued on the Macon County judgment in favor of Emma L. Magill for the sum of $4,644.97, which amount with $37.18 additional costs, making in all $4,682.15, was paid the Sheriff of Macon County by Foster, and by the Sheriff paid over to Emma L. Magill, less the costs, and the Sheriff’s additional costs, the actual amount received by Emma L. Magill being $4,575.92, which was in full satisfaction of the judgment and interest.

“That complainant has paid to Foster $4,724.29, being the amount paid by Foster with interest, together with costs which have accrued in favor of Foster against complainant and others in this court.

“That Emma L. Magill has received from the complainant $2,700 more than she is entitled to, and that she is liable to complainant for that sum, with interest thereon at the rate of six per cent, from August 29, 1884. It is thérefore ordered, adjudged and decreed by the court that Emma L. Magill pay complainant within thirty days, $3,120.75, with interest at six per cent, thereon from the date of this decree, and that upon the payment thereof the note and chattel mortgage he canceled and delivered to her, and that in default of her making o said payment execution issue.”

We see no valid objection to this decree. It rests upon the basis that Warner having deposited the note and chattel mortgage in court, through the agency of the court, appellee was compelled to pay to him the value of such note and mortgage. Under the circumstances the court would have the right, as in fact it did, to equitably assign and transfer the mortgage to appellee with like effect as though in fact made by Warner. The order of the court requiring appellee to pay in the money for Warner’s use and then transferring it to him could he justified only upon the theory that thereby an equitable transfer of the mortgage was made to appellee.

Appellee was under no legal or equitable obligations to pay Warner, and unless it was to receive the benefit of the mortgage, the order of the court requiring it to pay in the money would have been unjust and unwarranted.

While it may be true that appellee was not in condition to be subrogated to Warner’s rights as a volunteer and upon its own motion, yet when compelled to pay Warner, upon Warner’s motion, the court had the right to make such use of the mortgage as equity might require.

Should this decree he reversed, the order requiring appellee to pay the money to Warner would also have to be reversed; Warner would have to repay the money to appellee'; Mrs. Magill would have to pay off the mortgage to Warner, and the result would be the same as is reached by the decree of the court below.

Uumerous other questions have been raised and discussed, but we think none of them affect the substantial merits of the case, and for that reason they are not noticed. Believing that substantial justice has been done,"the decree of the Circuit Court will be affirmed.

Decree affirmed.


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    Trustees of Schools v. John Stoltz et al.

      Sill of Exceptions—Omission of Evidence—Presumption.
    Where the bill of exceptions does not contain all the evidence, it will be presumed that the evidence was sufficient to support the finding.
    [Opinion filed November 18, 1887.]
    I® error to the Circuit Court of Tazewell County; the Hon. N. M. Laws, Judge, presiding.
    Mr. B. S. Prettyma®, for plaintiffs in error.
    Mr. T. N. Gr.ee®, for defendants in error.
   Wall, J.

It appears from the record in this case that the bill of exceptions does not contain all the evidence which was heard on the trial in the Circuit Court.

The missing proof consists of an entry in a book of accounts made by defendant in error Stoltz, which entry is not copied in the bill of exceptions, a space occupying one-third of a page being left blank in the record. This was offered in rebuttal by plaintiffs in error, and was, of course, considered by the court.

We have no means of knowing what it was, though apparently it referred to the payment of interest made in April, 1866, which was relied on by plaintiffs in error to take the case out of the Statute of Limitations.

It is argued by counsel that it is not important.to have a copy of the entry, and that there is enough in the oral evidence to show what it was.

We are not disposed to take that view of the matter, and think the situation is the same as though the bill of exceptions failed to state that it contained all the evidence, in which case it would be presumed there was other evidence upon which to support the finding.

It may be the entry would show that the payment referred to was not for interest in advance, but only for what had then accrued, in which event the judgment would, no doubt, be correct. It may be it would show, as counsel insist, it was for six months’ interest in advance, which would raise the very important question of law discussed in the briefs. We do not feel at liberty to enter this field of speculation, however, and must therefore affirm the judgment.

Judgment affirmed.


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    William S. Frink et al. v. Sarah E. Peabody.

      Principal and Surety—Cosureties—Indemnity Held by One—Payment of Judgment—Contribution.

    1. Where a surety has failed to enforce an indemnity held by him, he can not call upon his co-surety for contribution.
    2. It seems that a surety who has paid a judgment against himself and co-surety, may keep it alive as a means of enforcing contribution.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Christian County; the Hon. J. A. Creighton, Judge, presiding.
    . This was a bill in chancery filed by the appellee against the appellants. The cause having been heard on pleadings and proofs, the following decree was rendered: “The court being advised, etc., finds that it lias jurisdiction of the parties and the subject-matter; that on the 7th of February, 1877, one Henry Tanner, as principal, and William S. Frink and Elias S. Peabody, as sureties, executed and delivered to Reuben Wilkinson a promissory note for $3,673.14, payable to him in ninety days from date, with ten per cent, interest.

      “ Thai on February 10,1877, said Wilkinson assigned the note to Andrew Simpson, who at the August term, 1877, of, to wit> on the 12th day of September, 1877, recovered a judgment against the said Tanner, Frink and Peabody, for the sum of $3,892.45; that execution was issued thereon FTovember 2, 1877, to the Sheriff of said county, and returned, by him for alias on January 28, 1878, credited with $432.50, made by sale of personal property of said Henry Tanner; that alias was issued January 31, 1878, to the Sheriff of said county, and by him returned, by order of plaintiff, unsatisfied, June 5,1878.
    “ That on the 16th day of March, 1878, said Simpson assigned the judgment to Oscar F. Morrison; that on the second day of September, 1881, pluries execution was issued on said judgment, to the Sheriff of said county, commanding him to make of the goods of Henry Tanner, Elias S. Peabody and ¥m. S. Frink, the amount of said judgment, less the credit thereon; that same was levied upon the S. f of FT. E. ■} of Sec. 6; the FT. W. £ of See. 16; the W. -§• of FT. E. -J of Sec. 16; the 27. \ of S. W. | of Sec. 16, and the 27. W. J of S. E. £ of Sec. 16, in township 13 FT., E. ls E. of 3d P. M., in said county, on the 8tli day of September, 1881, as the property of Elias S. Peabody, to satisfy said execution; and sale advertised to be made October 8, 1881.
    “That at the time of rendition of said judgment, said Peabody was the owner of said lands in fee, subject to the lien of the mortgage in the bill mentioned, for the sum of §7,000.
    “That on the 24th of January, 1880, said Elias S. Peabody, by his quit claim deed, conveyed all his title in said lands to one Charles W. Miskimins, which deed was recorded January 25,1881, in Yoh 2, on page 366 of quit claim records in said county, and on the 3d of February, 1831, said Miskimins, by his quit claim deed, conveyed all his interest in said lands to complainant, Sarah E. Peabody, which deed was recorded in Yol. 2, on page 383, of said records, on the 31st day of March, 1881; and that complainant is now and since then has been the owner in fee of said real estate subject to said mortgage.”
    Further finds that the purchase by Oscar F. Morrison of said judgment was not bona fide, Lilt merely colorable; that the transaction was, in fact, a payment of said judgment by Wm. S. Frink, and that by collusion between said Frink and Morrison, the judgment was assigned to said Morrison in an attempt to keep the same alive. That said judgment, having been paid by Frink, it is inequitable and unlawful for him or the said Morrison to enforce the same, or any part thereof, by execution against the real estate above described, and that said real estate should be declared free from the lien of said judgment.
    Further finds that complainant has, by her amendment, tendered to said Oscar F. Morrison the sum of $400, with interest thereon from March 16, 1878, as repayment of the money ad-' vanced or paid by said Morrison as his own in procuring the assignment of said judgment, and by virtue of said tender there is due in equity from said complainant to Oscar F. Morrison the sum of $657.96.
    Ordered, that the injunction granted October 5, 1881, be and the same is made perpetual against William 0. Haines, Sheriff of said county, and his successors in office, William S. Frink and Osear F. Morrison, their heirs, executors, administrators and assigns, and each of them, from enforcing said judgment, or any part thereof, against said real estate, and the same is declared free from the lien of said judgment.
    Further ordered, that complainant pay said Morrison, within ninety days, the sum of $657.96, with interest from date hereof at six per cent, per annum; if not paid, execution may issue.
    Further ordered, that complainant pay one-half, and defendants, Frink and Morrison, the other one-half of the costs of this proceeding.
    From this decree an appeal is prosecuted by Frink and Morrison.
    Messrs. Palmees & Shutt and Jas. M. Taylob, for appellants.
    Messrs. Anthony Thoenton and W. M. Peovine, for appellee.
   Wall, J.

The authorities are not harmonious upon the question whether one of several joint defendants may pay a judgment against them and still keep it on foot for any purpose. We see no reason why a surety may not be permitted to use the judgment as a means of enforcing contribution against his co-surety, and to this end he might furnish money to a third person to purchase the judgment. Freeman on Judgments, Sec. 472. This, however, would be permissible only when the circumstances are such as to render it equitable to require contribution between the sureties. If one of them holds an indemnity he must show that he has properly disposed of the security before he can enforce contribution, and if it appears that he has wasted it, he is in no position to obtain relief.

In this case, to the extent the money was furnished by Frink to Morrison to buy the judgment, the latter must be considered as occupying the position of the former and to be affected by the equities that would affect him. It is alleged in the bill and clearly proved that when the note was executed Frink took a chattel mortgage from Tanner upon sufficient property to indemnify the sureties against loss. This mortgage it was Frink’s duty to enforce, not only for his own benefit, but also for that of his co-surety, Peabody. But he neglected this duty and the securely was lost thereby. Hence he lost his right to call upon his co-surety for contribution and it would be inequitable to permit him to keep the judgment alive for such purpose. This is, in effect, the result reached by the decree. The appellee being the assignee of the co-surety and the owner of the land affected by the judgment may properly obtain relief as here granted. The decree will be affirmed.

Decree affirmed.


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    Sandwich Manufacturing Company v. William C. Kelly.

      Sales—Warranty—Rescission—Delay—Action on Note—.Set-off—Instructions.

    1. An obligation on the part of the defendant to pay a note assigned by the plaintiff, may be sufficient to sustain a plea of set-off, although payment was not made until after suit brought.
    2. In an action on a promissory note given on account of the purchase price of a reaper, it is held: That the contract of warranty applied to the machine in question, although originally given for another machine; and that the defendant’s delay in returning the machine js sufficiently explained-
    3. Instructions should be as few and plain as possible. All mere repetition and all redundant or useless forms of expression should be avoided.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Green County; the Hon. G. W- IIerdman, Judge, presiding.
    Messrs. James B. Ward and Frank A. Whiteside, for appellant.
    Mr. J ohn G. Henderson, for appellee.
   Wall, J.

The appellant brought suit against the appellee upon a promissory note for §105. The appellee recovered a judgment against the appellant, upon a plea of set-off, for 8114.46, from which an appeal is prosecuted to this court.

The note in suit and another for the same amount were given for the price of a reaper and the defense interposed was that the machine, having failed to work properly, had been tendered to the agent of appellant by whose direction it had been placed under shelter on the premises of appellee, subject to tlie orders of the appellant. The defendant sought not only to defeat the note sued on but to recover by way of set-off the amount of the other note which he had been compelled to pay to one Mosher, to whom the note had been assigned before maturity. This, by the verdict and judgment, he was permitted to do. It is objected by appellant that there was no warranty or contract applicable to the machine in question under which such a defense was admissible. The warranty or contract referred to was, indeed, given for another machine at a price ten dollars higher, but, by an arrangement afterward, the present machine was substituted at the price already mentioned, it being undei stood that the contract, as originally made, should apply to it as was intented it should to the machine first selected.

We see no difficulty in this. It is reasonably clear the parties understood the matter the same way, and there is no : cason suggested or perceived why they might not make the change and be bound by it.

Appellant complains that there is hardship and injustice in the finding because it appears the appellee used the machine for two seasons and after getting this benefit he should not be permitted to return it. The fault was in the binder. According to the proof, as made by appellant, it would not work well, and after repeated efforts during the first season by the appellee, as well as the agents of appellant, the difficulty could not be overcome. All the season there was constant trouble in this respect. At the end of the first season the appellee and the agent of appellant made an additional agreement by which the latter especially undertook, in writing on the back of the note sued on, to make the machine work well if appellee would try it another season. The second season was a repetition of the first in the repeated efforts to correct the imperfection and the constant failure to get satisfactory work, and it was then, according to appellee, that he proposed to return it, and was instructed to place it under shelter and hold it for appellant.

The evidence is not free from conflict upon important points, but there is enough to warrant the jury in finding substantially as above stated, and, assuming that appellee acted in good faith, making frequent efforts to overcome the defect at the request and suggestion of the agents of the appellant, the mere fact that he used it for cutting his grain two seasons under the circumstances of loss and annoyance, as he states them, would not preclude him from returning or offering to return the machine.

If it worked as badly as he says, it was not the implement he contracted for and he was not bound to keep it. It was a fair question of fact for the jury whether the course he took was in good faith. The length of time he kept it, unexplained, would furnish very strong ground for the belief that his objections were imaginary or manufactured, but the version given by him, if truthful, would justify his final action. We do not find sufficient cause to interfere with the verdict on this account.

It is also objected that the set-off should not prevail because the money was paid upon the note assigned to Mosher after this suit was brought. It is said that the plea of set-off is in the nature of a cross-action and that the subject-matter thereof must have existed when the principal suit was begun. Admitting this to be sound as a general proposition we think it has no application here. If the action of the appellee was warranted by the terms of the contract and by what occurred subsequently, the return or offer to return operated as a rescission of the contract so far as he was concerned, and he had the right to an immediate return of his notes. If appellant failed to make such return, appellee then had a cause of complaint. If one of the notes was then in the hands of an assignee for value, the liability of appellee to pay it was fixed. Lee v. Pennington, 7 Ill. App. 247; Pollock v. McClurken, 42 Ill. 370. He could not escape and there was no hardship in permitting him to recover on his plea of set-off the amount he was bound to pay when the suit was commenced although he did not discharge the liability till afterward. By thus transferring the note appellant imposed the liability upon appellee. The act of appellant was complete before the suit was brought and the legal obligation thereby caused was perfect and unavoidable. Being absolutely bound for this amount appellee might set it off in this action.

As to the instructions given for defendant, we find nothing in them opposed to the principles of law we deem applicable. There appears in this case, as in many cases, an unnecessary number and quantity of instructions on both sides. We have no doubt juries are often confused in this way. It is advisable that instructions should he as few and plain as possible, avoiding all mere repetition and all redundant or useless forms of expression. The trial court should not hesitate to modify or refuse such as are objectionable in these particulars. The record presents no substantial error and the judgment will be affirmed.

Judgment affirmed.