author: Baker, J.

text:
    Second District—May Term, 1887.
    Board of Education v. Smith Hoag.

      Action against School Board—Interest—Unreasonable and Vexatious Delay in Payment—Judgment—Surplusage.

    1. Whether there has been such an unreasonable and vexatious delay in the payment of money due the plaintiff as to entitle him to interest, is a question of fact for the jury.
    2. In an action against a school board to recover the price of a bill of lumber, it is held: That the evidence sustains the verdict for the plaintiff; that the delay in payment was both unreasonable and vexatious; and that certain words in the judgment should be rejected as surplusage.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac GL Wilson, Judge, presiding.
    Messrs. Edward C. Lovell and Frank Crosby, for appellant.
    Messrs. Botsford & Wayne, for appellee.
   Baker, J.

This was assumpsit by appellee against appellants to recover the price of a hill of flooring and lumber furnished by him in February and March, 1881, for the Locust Street school house. The case was before us at the May term, 1886) and is reported in 21 Ill. App. 588. Upon the remanding of the cause, the motion for a new trial was overruled and a judgment rendered upon the verdict of the jury for 8148.37, damages. The case is now again brought here by appeal.

Mo objection was made at the trial to the introduction of any portion of the testimony produced by appellee to establish his demand; and, in the absence of any evidence to the contrary, we think it sufficiently sustains the verdict of the jury, that the Board of Education was liable to pay appellee for the lumber furnished by him for the school building. It is objected that the jury, by their verdict, allowed appellee six per cent, interest upon the amount of his bill for the period of four years and a half. Mo fixed rule can be laid down to determine what constitutes such unreasonable and vexatious delay in payment as will entitle the creditor to interest. The question must necessarily be decided to a very considerable extent from the circumstances of each particular case. Sammis v. Clark, 13 Ill. 544. It is a question of fact for the jury to determine whether or not money has been withheld by an unreasonable and vexatious delay of payment. Kennedy v. Gibbs, 15 Ill. 406; Davis v. Kenaga, 51 Ill. 170. It is very clear, both from the language of the statute and from numerous decisions of the courts, that something more than mere delay of payment is required in order to bring a case within the last clause of Sec. 2 of the interest act. Tet, under the evidence found in the record before us, we are of opinion the jury was fully authorized to find that the delay in payment was both unreasonable and vexatious. Newlan v. Shafer, 38 Ill. 379; Daniels v. Osborn, 75 Ill. 615.

It is assigned as error that the form of the judgment is contrary to law. Sec. 49 of the school law iñ force July 1,1872, provides that if any judgment shall be obtained against any township, board of trustees or school directors, it shall be lawful for .the court to issue thence a writ commanding the directors, trustees and treasurer of such township to cause the amount thereof, with interest and costs, to be paid to the party entitled to the benefit of said judgment, out of any moneys unappropriated, of said township or district, or, if there be no such moneys, out of the first moneys applicable to the payment of the kind of services or indebtedness for which such judgments shall be obtained, which shall be received for the use of such township or district. In the judgment at bar the award of the writ was “that the clerk of this court issue thereon a writ commanding the said Board of Education of district number one, township forty-one, range eight, east of the third principal meridian; to cause the amount of said judgment, interests and costs to be paid to the said plaintiff, Smith Hoag, out of any moneys of the said township or district not otherwise appropriated, and in case there be no such moneys in their hands, then out of the first moneys applicable to the payment of this kind of indebtedness which said district or treasurer may recover for the use of said township or district.” The. mandate of the writ awarded is addressed to the Board of Education of the district. See Sec. 80 of the School Law of 1872. The appellant Board of Education had no control directly or indirectly over moneys in the hands of the township treasurer for the use of the township. The command to the board to pay the judgment out of any moneys of the township or district not otherwise appropriated, is simply without force and void in respect to the moneys of the township, and the words “township or” should be rejected as surplusage, and do not vitiate the judgment. The words, “ township or,” also occur in the alternative command of the writ, and are also there inoperative and void, and to be regarded as mere surplusage. The other differences between the writ that was directed by the order of the court and that provided for by the statute, are differences in the matter of the words employed and not differ, enees in any matter of substance, and are of such character as not to require any special notice.

We find no error in the record that requires a reversal of the judgment, and it is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    Chicago and Alton Railroad Company v. Thomas Connors and William Connors.

      Railroads—Diversion of Surface Water—Liability for Damages—In. struc ions—Evidence—Statute of Limitations—Continuance—Practice— Objections First Raised, in This Court—Election.
    1. Where a railroad company diverts the flow of surface water from its natural channel and conducts it through a ditch it has, made along its right of way to a point where it overflows the lands of another, the company is liable for the resulting damages.
    2. Where the defendant proceeded at the trial on the theory of his liability, if the plaintiff proved the facts as alleged in the declaration, he can not raise the question of his liability in this court.
    8. An objection that an instruction given by the court below did not sufficiently guard the rights of the appellant, touching a question not presented by his instructions, can not he first raised in this court.
    4. In the case presented, it is held: That the evidence sustains the verdict for the plaintiff; that there was no substantial error in giving and refusing instructions,• that the refusal of the court to require the plaintiff to-elect whether to proceed for the rental value or for the permanent injury to the freehold, worked no injury to the defendant; that there was no error in. overruling the defendant’s motion for a continuance; and that certain objections can not be first raised in this court.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.
    In connection with this case see the following and related case of the Chicago & Alton Railroad Company v. Riley.
    Messrs. Brown & Kirby, for appellant.
    This railroad was constructed by authority of law prior to the adoption of the Constitution of 1870, and there was no averment in the declaration that anything has been done, nor is there any evidence that anything has been done by the railroad company since that time to throw any water upon the lands of appellee.

      The evidence shows that the road was built prior to the purchase of the land by appellee, under legislative authority, and that the ditch was constructed some twenty years ago. There was no averment that the road was constructed or maintained negligently, nor is there any averment that the ditch was negligently or unnecessarily constructed. The consequence is that appellee must have recovered simply for the consequences of the construction of the road and its maintenance in a manner authorized by law. In these circumstances appellant contends that if any damage at all was sustained by appellee by means of the construction of the road and its maintenance, or by the digging of the ditch which is a necessary and essential part of the maintenance of the road bed, and which is required by law of the defendant, such damage comes within the maxim of the law, damnmn absque injuria/ that by the lawful construction of the road, in a lawful manner and without negligence, no legal injury can result to the appellees. They are not within the principle of the new Constitution, which says that private property shall not be taken or damaged for public use without just compensation. Since the adoption of that clause of the Constitution another rule may be said to have arisen.
    The Supreme Court of this State in Peck v. Herrington, 109 Ill. 611, held that the dominant proprietor could make no improvements upon his land consistent with good husbandry, irrespective of its effect upon the servient proprietor. ■ So we contend in this case that the management of this railroad in a manner consistent with public safety, and without negligence or unskillfulness, can not be deemed and taken to be the invasion of the private right of any servient proprietor. See J.. N. W. & S. R. R. Co. v. Cox, 91 Ill. 500; Nevins v. Peoria, 41 Ill. 502; Gillham v. Madison, 49 Ill. 484; Shane v. Kansas City, etc., R. R. Co., 71 Mo. 287; Abbott v. Kansas City, etc., R. R. Co., 83 Mo. 271; Jones v. St. L., I. Mt. & T. R. R Co., 84 Mo. 151; Moss v. St. L. R. R. Co., 85 Mo. 86; Gannon v. Hargadon, 10 Allen, 106; Luther v. Winnissinmet Co., 9 Cush. 171; Flagg v. Worcester, 13 Gray, 601; Dickinson v.Worcester, 7 Allen, 19; Bates v. Smith, 100 Mass. 181; Merrill v. Hurley, 120 Mass. 99; Hoyt v. City of Hudson, 27 Wis. 656; Cairo & Vincennes R. R. Co. v. Stevens, 73 Ind. 278; Taylor v. Fickas, 64 Ind. 167; Schlicter v. Pliilipsy, 67 Ind. 201; Shelbyville v. Green, 99 Ind. 205; Weis v. City of Madison, 75 Ind. 241; Benthall v. Seifert, 77 Ind. 302; Cairo, etc., R. R. Co. v. Howry, 77 Ind. 364; Goodale v. Tuttle, 29 N. Y. 459; Waffle v. N. Y. C. R. Co., 58 Barb. 413; Imler v. Springfield, 55 Mo. 119; Dickenson v. Worcester, 7 Allen, 16; Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 Gray, 601; Bowlsby v. Speer, 31 N. J. L., 351; Sowers v. Skiff, 15 La Ann. 300; Martin v„ Jitt, 12 La. 503; Gibbs v. Williams, 25 Kas. 214.
    Many other cases can be found in which it is held that, at common law, one in the exercise of lawful dominion over his own land may divert the surface water to such extent as is consistent with good husbandry. The same rules, by analogy, would apply to the construction of railroads; if any injury whatever has resulted to the property of the appellees by the construction of this railroad, it is a mere incident to the lawful exercise of the rights and powers which have been vested in it, and no recovery can be had for it. Roberts v. Chicago, 26 Ill. 249; St. L., V. & T. H. R. R. Co. v. Haller, 82 Ill. 208; Murphy v. Chicago, 29 Ill. 279.
    Mr. R. M. Wing, for appellees.
   Lacey, J.

Some twenty-six years ago the appellant constructed a railroad from the point where Braidwood is now situate, to Wilmington, under and by authority of the acts of the Legislature, and near to the land of the appellees lying between those points. The appellees sued appellant in an action on the case to recover damages alleged in their declaration to have been done to their land by means of flooding it by water, by the appellant digging a certain ditch along a portion of said railroad close to their land, several years subsequently to the building of the road and while the appellees were the owners of the land, which ditch collected a large amount of surface water from a distance and cast it upon their land, which, without the ditch, could never have reached it.

The situation of the railroad track and the facts and circumstances in relation to the location of the ditch and the flooding of the land are the same as in the case of the C. & A. R. R. Co. v. Glenney, decided by this court December 4,1885, and reported in 19 Ill. App. 639, and also on appeal to the Supreme Court decided by that court and reported in 118 Ill. 487. The appellees’ land in part lying immediately west of and adjoining the Glenney tract, the circumstances-of the alleged flooding are the same. For a more particular statement of the facts those two opinions are referred to. The recovery in this case was §800.

It is first contended by the appellant that there was no cause of action against it, for the reason that the appellant constructed its railroad in a lawful manner and dug the ditch to drain it without negligence.

The case of Herrington v. Peck, 109 Ill. 611, is cited and a line of cases in Missouri, Massachusetts and other States, which hold: That, “where a railroad company condemns land for its right of wayby proper methods, and without negligence or unskillfulness or mismanagement constructs its road and the embankments therefor, obstructing no natural channel of water thereby, the injuries done by such embankment, by causing the flow of water over the land of adjoining proprietors, will be regarded as the natural incidents and consequence of that which the corporation by reason of condemning the land had acquired the right to do. For such injuries no action will lie. The right of a railroad company after having constructed its railroad to make such changes in it as experience may designate as proper, is of necessity a continuous one.” Citing Moss v. St. L. R. R. Co., 85 Mo. 86; Gannon v. Hargadon, 10 Allen, 106; Bates v. Smith, 100 Mass. 181; Cairo & Vincennes R. R. Co. v. Stevens, 73 Ind. 278. By a long line of decisions by the Supreme Court of this State, a rule not so broad as that announced in the above - decisions has been adopted. In J., N. W. & S. R. R. Co. v. Cox, 91 Ill. 500, the Supreme Court hold, that a railroad has no right to bring a body of unaccustomed water xxpon the farm of another by means of its ditches, but on the contrary it is its duty to provide ample and sufficient means for the egress therefrom, nor does the fact that a land owner has deeded to the railroad company the right of way across his land give the company the right to flood his remaining land “with water brought by it from lands other than his, the natural drain of which would have carried it far from his premises.” See also the same rule announced in Kevins v. Peoria, 41 Ill. 502; Gillham v. Madison Co., 49 Ill. 484.

In the case at bar the proof tends to show that much of the water brought to appellees5 land by the ditch complained of, dug on the southeast side of the appellant’s railroad, was conducted there from a distance, which, without the ditch, did not naturally reach appellees’ land.

But it is not necessary to discuss the question of the liability of the railroad company for damages done by digging the ditch in question and conducting water onto the lands of appellees in the manner claimed by them, as the Supreme Court in the exactly similar case to this of C. & A. R. R. Co. v. Glenney, 118 Ill. 487, has recognized the liability of the-railroad company, if the facts are proven as appellees allege. The court says:

“If the appellant diverted the flow of water from its natural channel and conducted it through a ditch which it had constructed and emptied it into Killgore Slough at a point where it might overflow appellee’s (Glenney’s) land, it may be liable for such damages as resulted from its acts,” etc.

This is exactly what appellees claimed and undertook to prove in this case, and, if they proved it, the Supreme Court hold the appellant would be liable. So it will not be necessary to discuss the question further. It may be remarked, however, that the case in the court below was tried by appellant on the theory of their liability, in case the appellees proved the allegations of the declaration. By the 8tli, 9th and 13tli instructions, given to the jury at appellant’s instance, it was clearly recognized that appellees had the right to recover if appellant diverted certain waters “to such an extent as to cause the same to flow on the plaintiff’s land,” provided the damages done thereby, was ascertainable. Under these circumstances it is quite too late to raise the question of liability of appellant for the first time in this court.

And the jury, by appellant’s 12th given instruction, was clearly told that, “where tracts of land adjoining each other are so situated that water falling or collected by melting snow, or the like, upon one, naturally descends upon another, it must he suffered by the owner of the lower tract to he discharged upon his land, for the owner of the upper tract in such a case has a natural easement, as it is called, to have the water that gathers on his land flow off on the field below, and he may even accelerate the flow by digging ditches and drains so long as he follows the natural depression of the land.”

Appellant received, in the court below, the benefit of the jaw as it claimed it to exist, and upon these issues the cause was tried and resulted in appellees’ favor. The appellant’s brief is chiefly taken up in a discussion of a different theory of the law than the appellant admitted existed at the trial, and it asks this court to hold that the evidence, as applied to such principle, “discloses no cause of action against appellant.” From what has been said it will be seen that we are unable to do this.

It is further objected that appellees’ first instruction did not sufficiently guard the rights of appellant in regard to making it liable for damages done by water conducted into the railroad ditch by means of the ditches of other parties not authorized or permitted by appellant. That instruction, however, only has reference to the water flowing off in a different direction, and not water that had been brought onto the railroad right of way by artificial means. It does not appear that this defense, which was raised in the Glenney case, was thought of on the trial; at least it was not attempted to be so raised by appellant in any way. Appellant’s own instructions in regard to its liability were equally faulty, if there was fault with the appellees. If appellant desired the same question raised as was done in the Glenney case, it should have asked for an instruction to that effect; not having done so we think it too late to raise the question here for the first time.

We see no error in overruling appellant’s motion for a continuanee, more especially as the evidence developed the fact that appellees had no interest in the5 question of the value of the underlying coal, except the reserved royalty damages to which, by reason of lessened income, an account of it dropped out of the case, as there appeared to be.no proof on the subject, and the jury could not have taken that into account. The value of the land as coal land after it appeared from the undisputed evidence that appellees had given a perpetual lease on it for the coa.1 interest to a third party, was not involved, and no injury resulted to appellant from overruling the motion for a continuance.

We do not feel justified in reversing the judgment on account of lack of evidence to sustain the verdict. We think that if the jury believed the appellees’ evidence, which they had a right to do, the evidence sustains it.

It is insisted by counsel for appellant that the entire cause of action was barred by the Statute of Limitations, because, as claimed, the evidence shows that the railroad and ditch were constructed and dug more than five years before the commencement of this suit; citing C. & E. I. B. B. Co. v. McAuley, 121 Ill. 160. This point also seems to be an afterthought, for on the trial the appellant’s instruction to the jury plainly conceded its liability for five years’ damages, if any were shown, immediately preceding the commencement of the suit, admitting that the nuisance, if any, created by the appellant was, as to appellees, continuous, and that action need not necessarily be brought for.the entire damages at one time, but that suit for continuing damages might be brought.

By the 21st instruction given at the instance of appellant, the court told the jury 66 that, under the pleadings in this suit, if they shall find that the plaintiffs are entitled to money damages for the rents and profits of such real estate, or any part thereof, then such damages must be limited to the five years next preceding the commencement of this suit, which was July 7, 1883.”

It would be unfair and unjust to allow appellant to raise the question on the law, as it now does for the first time in this court, after procuring the jury to be instructed differently in the couit below. But aside from this view, we think that, while the railroad and tlie embankment may he regarded as permanent, a mere ditch like the one in question being dug years after the railroad and bank was erected, may not he regarded as of such a permanent nature as to compel suit for the damages to be brought on the supposition that the ditch would continue for all time as it then was, hut rather on the supposition that its defects would be speedily remedied.

The last objection of appellant is» that the court erred in admitting improper evidence for the appellees and in refusing to require the appellees to elect whether they would proceed for damages for the rental value or for the permanent injury to the freehold. We do not think, under the state of the evidence, that this objection is at all tenable. It does appear that there was some evidence going to show what the land was worth for the underground or coal privileges, and those privileges would be damaged as far as the sale of the coal was concerned on account of the ditch complained of flooding the land while the ditch existed in the form it was. But it afterward developed in evidence that the appellees had disposed of the mining privileges for all time to a third party, reserving a royalty. Hence there could be no recovery for such injury to the inheritance as coal land, for the reason that that Interest had already been disposed of and no complaint was made that it had been leased at a less price on account of the alleged flooding.

At the appellant’s instance, by the 11th instruction given for it, the jury was clearly told that If the coal interest had been by appellees rented to a third party for a royalty, and that such contract was in force and such party paying royalty, etc., then “the plaintiffs can not recover in this suit for any damages to said land as ‘coal land,? or for routs and profits for coal underlying said land; and the jury will so find.” There was no question hut the proof filled the hypothesis of the instruction, and the jury must have obeyed it. There is no objection raised in appellant’s brief as to the modification of any of appellant’s instructions, and none as to appellees’ given instructions, except as we have mentioned above. There was no proof whatever introduced as to any depreciation in the value of the land on account of alleged injury, except as to the coal interest, and this question having been disposed of in the way it was, no injury could, or, as we think, did result to appellant on account of the court’s refusal to compel the appellees to elect which kind of damages they would proceed for under the declaration, or in admitting evidence as to the damage done to the coal interest, which was done before the appellees’ lease of such interest had been shown. We therefore think that there is no sufficient error in the record to require reversal. The judgment is therefore affirmed.

Judgment affirmed.


text:
    Chicago & Alton Railroad Company v. Thomas Riley.

      Railroads—Dirersion of Water—Liability for Damages—Statute of Limitations—Instructions.

    1. Where a railroad company diverts the flow of surface water from its natural channel, and conducts it through a ditch it has made along its right of way to a point where it overflows the lands of another, the company is liable for the resulting damages.
    2. The Statute of Limitations does not bar a claim for such damages, based upon the continuing injury for five years immediately preceding th ¡ commencement of the suit, although the railroad and ditch were constructed and dug more than five years prior to that time.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.
    In connection with this case see the preceding and related case of the Chicago & Alton Railroad Company v. Connors.
    Messrs. Brown & Kirby, for appellant.

      Mr. R. M. Wing, for appellee.
   Lacey, J.

This case, in its general propositions and facts and in reference to the wrongful acts of appellants in regard to the railroad embankment and ditch and the flooding appel- ' lee’s land, is identical with the case of the appellant v. Connors, ante, p. 561, and the appellants v. Glenney, decided by this court at a former term and reported in 19 Ill. App. 639, and again in 118 Ill. 487, which several cases and opinions are referred to for the facts, as well as the opinion of this court in the case v. Connors, for our reasons for our conclusions in this case. The recovery in this case was $500.

The law in regard to the liability of the railroad company for flooding the appellee’s land as stated in the Connors case applies equally well in this case, and we refer to our opinion in that case for our views thereon. Appellee is the owner of the southeast quarter of the same section in which is located the respective landsof Connors and Glenney, and the appellant’s railroad runs through his land in a diagonal direction from the southwest corner to the northeast corner.

The fact that the appellant’s road runs over appellee’s land does not in the least change the principle of the liability of appellant as announced in the Connors case. As to the point made that the Statute of Limitations has run, our views expressed in the Connors case will apply here, except we find no instruction given on the part of appellant admitting its liability within five years immediately preceding the commencement of this suit, but this same question was not raised in the court below. Also in this case there was no question for damages on account of injury to the salable value of the land; the only claim is for the continuing injury for five years immediately preceding the commencement of this suit.

As to the instructions of appellant offered and refused, no discussion is had of them by appellant’s counsel, and we think they were properly refused, as the jury had been fully instructed as to appellant’s rights and liabilities.

Seeing no error in the record, the judgment of the court below is affirmed.

Judgment affirmed.


text:
    Patrick Ryan v. E. Sanford.

      Trust Deeds—Sale—Bill to Redeem—Evidence— Usury—Record—Depositions.

    Upon a bill to redeem certain premises after a sale under a power contained in a trust deed, it is held: That the equity of redemption was cut off and foreclosed by the sale and trustee’s deed, the evidence disclosing no different intention at the time of the sale; that, in the absence of a mortgage from which to redeem, it is useless to inquire whether the original transaction was tainted with usury; and that it is to be presumed that the depositions were considered at the hearing.
    [Opinion filed January 7, 1888.]
    In error to the Circuit Court of Kankakee County; the Hon. Franklin Blades, Judge, presiding.
    Mr. Stephen R. Moore, for plaintiff in error.
    Mr. E. Sanford, in person, defendant in error.
   Baker, J.

This was a bill to redeem forty acres of land, and was filed by Ryan against Sanford. A trust deed was executed by Ryan in January, 1877, to John Trowbridge, and was afterward by Trowbridge assigned to George Wilkinson; and on August 26, 1878, Wilkinson, by virtue of the powers contained in the trust deed, advertised and sold the premises, at a public vendue, to E. Sanford, the defendant in error, and executed to him a trustee’s deed. The hill charged the contract, to secure which the mortgage was given, was usurious, and also fraud and collusion to cheat and swindle and collect illegal interest, and that after Sanford obtained the trustee’s deed he told Ryan that if he would become his, Sanford’s, tenant at will, he might have the land back by paying up the money and interest due under the mortgage. The bill also averred that Ryan had paid to Sanford about $300 as interest, rent and taxes, and had tendered to him the money due on the mortgage. The answer denied all the material allegations of the bill. The cause was heard at the September term, 1884, of the Kankakee Circuit Court, and the bill dismissed at the cost of Ryan, the plaintiff in error.

The decree recites that the evidence was heard; but there were no findings of fact contained therein. There is no certificate of the evidence; but the record contains three depositions which the circuit clerk certifies are on file, and which form a part of the record in the cause.

The land was sold in conformity with the power given in the trust deed, and conveyed to Sanford by virtue of authority emanating directly from plaintiff in error himself. It is not even claimed there was not a valid execution of the power. It is clear the equity of redemption was cutoff and foreclosed by the sale and trustee’s deed, unless, either it was the intention of the parties at the time to keep the mortgage alive notwithstanding such sale and conveyance, or their conduct was such after sale as to indicate they regarded and treated the deed under the sale, or the transaction, as a mortgage. The evidence precludes the idea of any such intention at the time of the sale and execution of the trustee’s deed. Subsequently Sanford when applied to, offered to reconvev the land to Ryan for much less than its actual value, but his offer was not accepted. Ryan himself testifies that Sanford did not promise to let him have the land back upon his paying up the money and interest. It further appears that he expressly recognized the conveyance to Sanford was absolute, by taking from him, for three consecutive years, written leases of the land, and by paying him rent therefor. There is nothing in the proofs to indicate these payments were regarded or intended, by either party, as either payments or interest on payments on a mortgage indebtedness. They were both made and received as rent for the land. Ryan states in his deposition that he paid Sanford rent for the land; $75 rent the first year, $80 the second year, and $80 the third year.

There being no mortgage to redeem from, it is useless to inquire whether the original transaction in which the trust deed was given was or was not tainted with usury.

The depositions on file, and which we have referred to above, form a part of the record in this suit without any certificate of the Judge, and we must presume they were considered at the hearing. Moss v. McCall, '75 Ill. 190. They sufficiently support the order and decree of the court. Taking the record as it stands, the decree was correct and the hill properly dismissed.

If there was other testimony heard which tended to impeach the decree, plaintiff in error should have preserved it in a certificate of the evidence. But it .is not even suggested there was such additional testimony.

We find no error. The decree is affirmed.

Deoree affirmed.


text:
    Edward A. Dunlap v. Estella Clark.

      Breach of Promise of Marriage—Action for—Evidence of Defamation of Character, Inadmissible—Damages—Measure of—Evidence—Conflict of— Instructions.

      1. Breach of promise of marriage and defamation of character, being distinct causes of action, can not both be made the subject of inquiry in the same suit.
    *2. In an action for breach of promise of marriage, evidence of defamation of the plaintiff’s character by the defendant is inadmissible.
    3. In such an action evidence of preparations for the contemplated mar. riage is admissible, as furnishing an element to he considered in the computation of damages. Such preparations, unless made with the knowledge and assent of the defendant, are inadmissible to establish a promise of marriage by either party.
    4. The assessment of damages in such cases should include only such damages as result in consequence of the non-performance of.the contract. Where the evidence does not show the loss of a permanent home, the money value of such a home should not be included in such assessment.
    5. An instruction calling the attention of the jury to the attendant facts and circumstances which tended to corroborate one of the parties only, where their testimony is conflicting, is one-sided, unfair and erroneous.

      [Opinion filed January 7, 1888.]
    In error to the Circuit Court of Marshall County; the Hon. N. W. Green, Judge, presiding.
    Messrs. Edwards & Evans, for plaintiff in error.
    Messrs. J. H. Jackson and Burns & Ong, for defendant in error.
   Baker, J.

In this action of assumpsit for breach of a marriage promise, tried in the Marshall Circuit Court, the verdict of the jury was in favor of Estella Clark, plaintiff below, for $1,800 damages, and the court rendered judgment thereon.

During the trial one John Judd, a witness for Estella Clark, was permitted to testify, over the objections of Dunlap; defendant below, that ten days or two weeks before Dunlap went away he said he was going away for reasons; that plaintiff wanted him to marry her and insisted on it and threatened him; that he said he did not believe the threat, did not think she was in that condition; that it might be so, but that he did not know how it might he. Dunlap also objected, but without avail, to the plaintiff’s reading to the jury from the deposition of one yerr H. Mullin that in a conversation he, Mullin, had with defendant on the subject of marrying the plaintiff, Dunlap said: “I think other fellows are running with her; you know what I mean.” It further appeared from the testimony that plaintiff below was not in the family way; and both she and Dunlap testified positively they had never had sexual intercourse; and there was no evidence tending to show immoral conduct by her with other parties.

These statements of Dunlap derogatory to the character of the plaintiff Clark, were improperly permitted to go to the jury, and their effect probably was to give to the plaintiff damages for slander in this action for breach of promise. It was said by the Supreme Court in Greenup v. Stoker, 2 Gilm. 688: “If the defendant has slandered the plaintiff, either before or after the commencement of this suit, he is liable to her in a distinct action, and, if sued, can not set up the recovery in this case against a recovery for slanderous words. The breach of contract and the defamation of character are two very different things, and both can not be made the subject of inquiry in the same suit.” When the case cited was again before the court, in Greenup v. Stoker, 3 Güín. 202, an instruction was expressly approved which directed the jury, in their assessment of damages, to disregard any injuries inflicted on the character of the plaintiff except so far as might result as a consequence from the non-performance of the contract. The extreme limit to which the courts have gone in respect to such matter is, that, if the defendant in a suit for breach of promise undertakes to defend on the general bad character or criminal conduct of the plaintiff, and fails altogether in the proof, then the jury may consider this in aggravation of damages. 2 Parsons on Contracts, 69; Southard v. Rexford, 6 Cowcn, 254; Greenup v. Stoker, 2 Gilm. 288.

Ho attempt of this kind was made in the case at bar, and the ruling of the court was clearly erroneous, and in our opinion the error was not cured by the instruction not to take into account any damages sustained by the plaintiff by reports raised since the commencement of suit or before its commencement, either by the defendant or others.

Exception was also taken at the trial to the admission in evidence of the testimony of the plaintiff below and her mother, with reference to preparations made by the former for the contemplated marriage in the purchasing and making up articles of clothing. The evidence was proper, as furnishing an element to be considered in the computation of damages. Russell v. Cowles, 15 Gray, 582. As the preparations were not made with the knowledge and assent of the defendant they were not, however, evidence from which could be drawn any inference that the defendant had promised to marry the plaintiff; otherwise a designing woman might well make up a lot of clothing and introduce proof of such fact in corroboration of her statement a promise of marriage was made. It is urged by counsel for defendant in error that, as the promises to marry must be mutual in order to constitute a valid contract, therefore these preparations were also competent testiinony to show the corresponding promise of the plaintiff. In matters of contract the general rule is that the declarations or conduct of parties are evidence against, but not for them. The acts of the plaintiff not in the presence of, or communicated to the defendant, were incompetent to establish a contract as against the defendant. In Hutton v. Mansel, 3 Salk. 16, and 6 Hod. 172, cited by defendant in error, it was held the behavior of the plaintiff was sufficient evidence of her promise, but, presumably, such behavior was her conduct toward the defendant. It was advisable the jury should have been guarded by an instruction from the court against regarding the circumstances in question as evidence tending to prove a promise, but as the defendant did not ask the court so to do, we can not hold the action of the court in the premises was erroneous.

The fifth instruction given"on motion of plaintiff below was as follows:

“5. Where the plaintiff and defendant contradict each other as to the verbal agreement alleged by her to be had between them, and the jury are not satisfied fully of the fact from their evidence so adduced, it is then the duty of the jury to take into consideration all the attendant facts' and circumstances in evidence, if any, which, in the judgment of the jury, tend to corroborates the plaintiff in the statements made by her, and in this connection consider all the acts, declarations and conduct of the parties in reference to the subject-matter under consideration as to such marriage contract.”

There was a direct and irreconcilable conflict in the testimony of the two parties to the suit in respect to the alleged promise to marry, and such conflict presented the vital issue in the case. The instruction above1 quoted was one-sided, unfair and erroneous, in that, while it called the special attention of the jury to all the attendant facts and circumstances wdiich tended to corroborate the statements of the plaintiff, it not only failed to perform such office for defendant, but excluded from consideration all attendant facts and circumstances tending to corroborate the defendant which were outside of the acts, declarations and conduct of the parties themselves.

There was no evidence before the jury that Dunlap was the owner of any land, house or home, or in reference to his pecuniary circumstances, and yet they were told in the 18th instruction given for Clark, the plaintiff, that they might consider, in assessing the damages, among other things, “what would be the money value, or worldly advantages of a marriage which would have given her a permanent home.55 The court assumed as a fact that of which there was no evidence, i. e., that the result of the marriage would have been to give her a permanent home. It were desirable such result should follow every marriage, but it does not. When a contract of marriage is entered into, it is a part of the contract that the husband shall provide his wife with a future support. From this promise it is insisted by counsel that “future support55 and “a permanent home,55 both mean the same thing. We are unable to hold they are synonymous terms. In suits for breach of promise of marriage (except it may be in cases that call for exemplary damages), the assessment of damages should include only such damages as result asa consequence from the non-performance of the contract. Here the evidence did not show that the loss of a permanent home resulted from the breach of promise. It may well be supposed that, the jury, under the instruction given them, settled upon a sum of money in gross as the money value of a permanent home, and added such sum to what otherwise would have been their verdict. We think the instruction was misleading and erroneous.

We do not consider tenable the objections made to instructions one and two for defendant in error.

On account of the errors indicated in this opinion, the judgment is reversed, and the cause remanded.

Reversed/ a/nd remanded.


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    Homer C. Tucker v. Curtis Cady.

      Sales—Action to Recover Price of Corn—Storage.
    In an action to recover the price of certain corn which the plaintiff had delivered to the defendant, it is held: That the finding of the court below that the corn was not put into the defendant’s warehouse on storage, is sustained by the evidence; and that, if the corn was sold without any agreement as to the price, the ruling price at the time of delivery would go\ era.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Cratty Brothers and Fuller & Gallup, for appellant.
    Messrs. Starr & Starr, for appellee.
   Lacey, J.

The appellee, on the last days of October and first days of November, 1882, delivered to appellant l,138|-f bushels of corn in his elevator at Brimfield. This suit was brought by appellee to recover the price of the corn. A jury was waived, and the cause tried by the court, which found in favor of the appellee, and rendered judgment against appellant for the sum of $683:10, the price of the corn at 60 cents per bushel. To reverse that judgment this appeal is taken. There is no question of law involved. The judgment of the court below is sought to be reversed solely on the grounds that the finding of the Circuit Court was against the weight of the evidence. The controversy is solely over the price that was to be paid for the corn. The contention of the appellee is that he sold the corn at the market price at the time of delivery, which was 60 cents per bushel; that of appellant that “ he was to store the corn until the first of January next following, free of charge, and was to pay the market price whenever the appellee demanded Ms money.” The appellant also contends that the appellee demanded his pay about the middle of December following, when corn had dropped to 45 cents per bushel, which price he then offered him, but which appellee refused. The dispute, then, is about the difference of 15 cents per bushel on the price of the corn. The evidence rests on the testimony of the appellee and appellant, and one Burt, who partially corroborates the testimony of appellant.

The appellee testified that a day or two before the delivery of the corn ho met appellant and asked him what he was paying for corn, 66 and he said 60 cents; or he said I could take 10 cents off the Chicago price at any time. I told him I did not want any of that; that I had enough of that already; that was all there was said about it to my knowledge.”

While this testimony does not show that the appellee expressly agreed to take 60 cents per bushel for the corn, it shows that it was not his intention to store it on the terms contended for by appellant. It showed rather that it was his intention to take the market price of the corn when delivered, and that at the time of the conversation no bargain was struck at any price. On cross-examination appellee testified that he told appellant he would not have any storage; that he did not know that appellant had any stored ; no storage was ever mentioned.

The appellant testified in his own behalf that appellee said he wanted to deliver his corn. ££I told him we would take it in and store it free until January 1st.” 61 He said he would put it in and wait for 60 cents. That is all there was said, and the corn came in.” He further testified that appellee, when he wanted his pay in December, wanted 60 cents, the market price of tlie corn when it was put in. I never agreed to pay him 60 cents.”

On cross-examination he further testifies: “I think Cady asked me market price that we were paying for corn at the time he came to deliver it. I told him the price was 60 cents. I may have said that he could take his pay at any time, 10 cents less than the Chicago market. I suppose we talked that way. He may have said that lie would have nothing to do with the Chicago market; I don’t know. I have never yet agreed with him on the market price. I shipped the corn right out. It is a private elevator.”

There appears to be a conflict of evidence between the appellee and appellant as to whether the former said he would put his corn in on storage. The former swears he did not and that no storage was mentioned and that he did not know that others were storing with appellant. It appears a little strange that appellee should have said at the time of the conversation, in regard to delivering the corn, that he would put it in and wait for 60 cents when it was 60 cents at that time, and the appellant so informed him. There must have been some mistake about that statement, and as this is the only statement referring to the agreement of appellee to put the corn in on storage, claimed by appellant, we think the court below was justified in discrediting it.

While the appellant swears that he took the corn of Purcell and others, amounting to 14,000 bushels, free of storage till the first of January, and was to pay the market price whenever they demanded their money, and that he said to appellee at the time he called for his pay, in December, that he made the same kind of a bargain with him, yet he does not testify that anything of the kind was mentioned by either himself or the appellee in their conversation concerning the delivery of the grain or at any other time, and he purported to give the entire conversation. That the appellant took the corn in on the same terms as he did that of Purcell and others, seems to be only an inference of the appellant for the support of which he does not point to any conversation between him and appellee that would justify it.

It may be and probably is true, that appellant did not agree in so many words to pay, or the appellee did not accept expressly 60 cents per bushel for the corn at the time of the admitted conversation between them, but if the corn was not put in on storage, which the court was justified in finding it was not, and sold without any bargain as to price, then the ruling price, 60 cents, at the time of the delivery, would govern. The law would regulate the price. It may be that the minds of the parties did not meet on the terms on which the corn was received, whether on storage or sale, yet if it was delivered and the appellant sold and converted it to his own use, and the market price at the time was 60 cents per bushel, then the law would raise an implied promise on the part of appellant to pay the then market price for the corn.

The court below may have taken this view of the case, giving each party credit for honesty as to what he understood the terms of the contract of delivery to be. We do not think that Burt, the appellant's witness, was at all justified in his inferences as to what the contract was, derived from the conversation between appellant and appellee in December, from what was said.

What appellee admitted is not inconsistent with his testimony, although he may not have put his right to receive 60 cents per bushel for his corn on the best grounds.

We need not discuss the question as to what the rights of the parties would be if the appellee deposited his grain on general storage in appellant’s private warehouse, and instead of its being held the corn was shipped out immediately and no equivalent amount retained in the elevator to meet the deposit when demanded, or any other legal question of a like nature. Ho law question of this kind is raised by asking the court to hold the law, and only a question of fact is presented. If the finding can be supported on the evidence on any theory it should stand.

We are of the opinion that the court was fully justified in its finding, and therefore affirm the judgment.

Judgment affirmed»


author: Lacey J.

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    Mary E. Feeley, Executrix, v. Mary M. Thewlis.

      Landlord and Tenant—Trespass—Action to Recover Value of a Crop of Rye.

    In an action of trespass to recover the value of a crop of rye, the parties both claiming to be tenants of the same premises, it is held: That the questions whether the plaintiff, who sowed the rye, became the tenant of the owner by sub-letting the premises, and whether said premises were re-let to her, were for the jury; that the arrangement to allow her to sow the rye was a renting, if the agent of the landlord was authorized to make it; that she did not become the tenant of the defendant; that the defendant had sufficient notice of the plaintiff’s rights; and that there was no error in the , instructions.
    [Opinion filed January 7, 1888.]
    In error to the Circuit' Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Haley & O’Donnell, for plaintiff in error.
    Messrs. Olin & Phelps, for defendant in error.
   Lacey J.

On the 1st day of August, 1881, one James Bradford, the son of the defendant in error, by written lease under seal, rented of Lucy J. Sleight an eighty-acre tract of land for a term of two years commencing May 1,1881, and terminating May 1,1883. The amount of rent reserved was $125; $60 for the first year and $65 for the last. The lease, by its terms, was not assignable.

James Bradford, the son, was unmarried and resided with his mother. He and his younger brother worked on the farm, and his mother, defendant in error, paid the hired help and for the first year had the hay. James paid $12 for the first year’s rent and the defendant in error the rest. The second year defendant in error occupied the farm and James had nothing to do with it but worked by the month. Defendant in error, for the second year’s rent, paid a horse to Edward Sleight, the son of Lucy J. Sleight, who had given her son all the rent he might collect on the lease. The rent was then receipted for in full by him np to the time the lease, by its terms, expired.

This payment was made by defendant in error at her residence in August, 1882. It is claimed that at that time an agreement was entered into by and between the defendant in error and Edward Sleight, on behalf of his mother, that he was to rent her the land for one or four years and he was to come down the next spring and “ let her have it.” It was then agreed that she might go ahead and put in rye that fall which) in the course of nature, would be harvested in the summer of 1883. The rye was sown in the fall of 1882, with the knowledge oj: John B. Feeley, since deceased. In April, 1883, the rye was up the usual height.

On the 1st day of May, 1883, John B. Feeley, by written-lease, rented the same land for a term of five years, commencing May 1, 1883, from Lucy J. Sleight, he agreeing to cc defend all suits that might be brought against him questioning the title-to said property, by one James Bradford or one Mrs. Tliewlis»- or the right of the said Feeley to quietly enjoy the same.”

John B. Feeley harvested this rye sown by defendant in error, on the 21st July, 1883, after being notified by defendant in error not to do so, and also cut the grass on the land and thereafter took and retained possession. This suit was brought in trespass to recover for the value of the rye and crops by defendant in error against said Feeley, who has since died, and the plaintiff in error appointed administratrix of his estate. The jury found a verdict in favor of defendant in error for the value of the rye crop and hay for §204.22, and she remitted all but §78.22, the value of the rye crop, and judgment was given against plaintiff in error for that amount, from which-judgment this writ is sued out.

The point is made by plaintiff in error that the defendant in error could not acquire such possession of the premises as would authorize her to maintain an action of trespass, the lease containing a covenant that the term should not be sub-let.

The lease of James Bradford being under seal could not be changed by any parol understanding during the term, and that there was no surrender of the lease; that the sowing of the crop in the fall of 1882, which those holding under the lease knew would not mature before May, 1883, conferred no rights upon them against the owner and subsequent purchaser; citing Breher v. Reese, 17 Ill. App. 545.

It is further insisted that the verdict was against the weight of the evidence, and that Feeley was entitled to occupy the position of landlord to defendant in error; that the defendant being ousted of possession by Feeley, therefore, she could only recover for the damages occasioned at the time of such ouster, and not for what was done afterward by Feeley in possession until re-entry; 'citing Smith v. Wunderlich, 70 Ill. 426, and Gould v. Sternburg, 4 Ill. App. 439.

Also it is insisted that the defendant in error’s instructions, 3 and 4, were erroneous.

All of these objections, except that made to the defendant in error’s instructions, may be generally classed under the general objection that the verdict was contrary to the weight of the evidence, and may be treated in that light. It is not entirely certain what position the defendant in error occupied toward the lease given her son; whether as an assignee of the lease by him to her by Mrs. Sleight’s consent, or whether she was operating under her son without becoming the tenant herself. The evidence might justify a finding by the jury either way.

The fact that the lease forbids sub-letting would make no difference if the landlord, Mrs. Sleight, either expressly or impliedly gave her consent to sub-letting after the lease was executed, and this would be for the jury to determine from all the facts and circumstances in evidence. Edward Sleight received the rent for 1882, from defendant in error, and he was the agent of his mother to receive such rent, as all agree.

Whether he was the agent of his mother to re-let the premises, either to defendant or to J ames Bradford, is a disputed question and is denied by him and Mrs. Sleight, yet there are circumstances going to show that he was her agent. The first letting was effected through his agency and he collected part of the rent, and then the notice given by Lucy J. Sleight to James Bradford and defendant in error, dated 18th June,1883, by the knowledge and procurement of Feeley, that unless they paid the rent, §250, within five days, she would terminate the lease, is an acknowledgment that there was some kind of a lease then existing other than the one that expired M.iy 1, 1883.

This evidence the jury had before them, and it tended strongly to show two things: 1st. That there was a tenancy then existing that Feeley and Mr. Sleight both recognized, and that the defendant in error had possession of the land. If her son had the authority to rent the land, who knew that fact better than Mrs. Sleight? Suppose the §250 had been paid within the five days, what would have become of Feeley’s lease? If the jury found that Edward Sleight had authority to rent the land in July, 1882, and Mrs. Thewlis was not occupying the land under her son’s lease, then the arrangement to allow her to sow the rye that fall would be a renting to her without reference to the former lease, her son abandoning it for tho benefit of his mother, and at the same time an implied agreement that she should at least hold the land till she could harvest the rye, and it would not matter whether the agreement, if there was one, to rent for one or four years was carried out or not.

The jury were justified in finding that to be the state of the case, and also that defendant in error was never fully dispossessed of the premises until after, the rye was harvested by Feeley, so that the point of law raised could not apply.

As to Feeley having been the landlord of defendant in error, it may be remarked that she never attorned to him her term, and he gave her no notice, but insisted on taking possession of the land with all the crops, and in this suit made no effort to recoup his rents, if he had.any claim for rents.

Instruction number three is good so far as the notice of defendant in.error’s lease is concerned (that being the portion complained of), as Feeley did know that defendant in error put in the crop of rye and had notice not to cut it. He also knew that she had possession. This was sufficient notice. From what has been said in this opinion in regard to the evidence, it will sufficiently appear that there was enough evidence on which to base the fourth instruction. We will not go into a detailed examination of the evidence on the point of excessive damages, but we are fully satisfied that, as to the amount of recovery, the evidence is sufficient.

This is a case where all the natural equities are strongly in defendant in error’s favor. She furnished the seed and did the plowing and sowed the rye, and naturally should receive the benefits arising from her labor and expenses.

In such case where the evidence fairly supports the verdict of the jury, it always gives the court great pleasure to be able to sustain it.

Finding no error in the record, the judgment of the court below is affirmed.

Jxtdgment affirmed.


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    Edgar L. Butler v. William Randall.

      Set-Off—Motion by Plaintiff to Dismiss Suit—Discretion—Exceptions to Report of Referees—Evidence—Practice.

    1. After a plea of set-off has been filed, it is. within the discretion of the court whether to grant a motion by the plaintiff to dismiss the suit.
    2. In an action of assumpsit to recover a balance claimed to be due for services rendered, in which the defendant interposed a plea of set-off, it is held,: That the testimony of certain witnesses, and certain checks, notes, and a sworn copy of the footings of an account made by the plaintiff, were properly admitted by the referees; that the findings and conclusions of fact of the referees are entitled to the same consideration as the verdict of a jury; and that this court can not consider objections to the report of the referees, which were not made in the court below.

      [Opinion filed January 7, 1888.]
    In error from the Circuit Court of "Warren County; the Hon. Johr J. Qlenet, Judge, presiding.
    Mr. John Porter, for plaintiff in error,
    Mr. W. K. Stewart, for defendant in error.
   Baker, J.

Edgar L. Butler, plaintiff in error, "brought assumpsit in the Warren Circuit Court against William Randall, defendant in error, to recover $171.14, claimed to be due for work and labor. Randall interposed the general issue and a plea of set-off, and filed therewith an account against Butler amounting to §51,917.39. Issues were formed and the causes by agreement of parties referred, under the provisions of the statute, to three referees, to report their conclusions of law and fact At a subsequent term plaintiff in error sought to dismiss his suit, but the court refused to permit him so to do.

Afterward the referees made their report to the court, and filed with it the testimony taken and the exhibits and papers introduced in evidence. The conclusions reported by the referees were, that Butler was in the employment of Randall, at §50 per month, from November 8, 1878, to February 7,1880, inclusive; that during that time the money he had and received to be paid out and expended for Randall, and his indebtedness to Randall, together, amounted to §38,176.05; that during that time he laid out and expended for Randall and earned as wages §31,550.95, and that there was due from him to Randall §6,625.10. Exceptions to the report "were overruled by the court, and judgment rendered against Butler upon the award of the referees for §6,625.10 damages, and for costs.

The first error assigned upon the record is, that the court erred in not permitting the plaintiff to dismiss his suit on his motion. The plea of set-off was filed long before the motion to dismiss was made, and it does not appear there was any cause shown for allowing a dismissal, or that there was any abuse of the discretionary power of the court. Section 30 of Practice Act of 1872; U. S. Savings Inst. v. Brockschmidt, 72 Ill. 370; City of East St. Louis v. Thomas, 102 Ill. 453; 9 Ill. App. 412. This assignment of error is not weB made.

The second assignment of error is, that the court erred in overriding the exceptions on the part of plaintiff to the amended report of the referees. The exceptions were five in number, and the substance of them may be briefly stated and considered, seriatim. The first exception questions the propriety of the action of the referees in overruling plaintiff’s motion of April 13, 1883. That motion was to strike from the record, and from all consideration as evidence, the testimony of J. C. Johnson, W. T. Smith and S. C. Irvine; also “Exhibit A” to the testimony of defendant Randall, and all evidence in regard to the nine notes shown in said exhibit; also “ Exhibit E ” to same testimony; also “ Exhibit A ” to testimony of William L. Snapp; also the testimony for defendant taken June 27,1882 ; also the testimony for defendant taken August 18, 1882, and the exhibit attached thereto; also the testimony for defendant taken September 1, 1882, and the “statement” attached thereto; and also the evidence of James Tucker, George W. Stice and Thomas Hamilton.

Ho reason is suggested either in the motion submitted to the referees, in the exception filed in the Circuit Court, or in the brief and argument of plaintiff in error, why the testimony of Johnson, Smith and Irvine should have been stricken out, and we do not understand it to be any part of our duty to hunt for ground to justify us in holding it should have been done. “Exhibit A” to testimony of defendant consisted of nine promissory notes executed by defendant to third parties, and the evidence tended to show they were all given for borrowed money and that all the money so borrowed, with the exception of a portion of that raised on one or two of the notes, was turned over to plaintiff to be used in buying cattle and live stock for defendant, and in and about his business. These notes were competent testimony, when considered in connection with the oral evidence relating to them. “Exhibit E” consisted of thirteen checks on the bank in which defendant kept Ms deposits. Ten of these were signed by plaintiff himself, in his capacity as agent of defendant, and the money was drawn by him on them from the bank; and it is not seriously urged they were not material testimony tending to charge him with the receipt of the moneys speciiied in them. The other three checks were signed by defendant, but he testified that, when he drew the cash on the check for §2,937.88, he handed over $2,900 of it to Butler, and also turned over to him §350 of the §353.64 check, and §500 of the §501.08 check, to be used in and about the business of the agency. The checks were competent in the light of the testimony of which they formed a part. The evidence of William L. Snapp was to the effect that plaintiff had exhibited to him an account consisting of seventeen pages and purporting to be a statement of the moneys he had paid out for defendant during- the agency, the several pages of the account being footed up, and that he had taken a copy of these footings. “ Exhibit A ” to his testimony was this copy of the footings which he had made when the account was shown to him. The account itself would have been admissible as evidence against plaintiff, on the ground that it was an admission; and the exhibit was competent testimony as being a sworn copy. Ho objection is anywhere pointed out to the testimony, or any of it, taken on June 27, 1882, and we must assume the ruling it should not be stricken out, was correct. The admission in evidence of the F. M. Simmons notes, dated, respectively, October IS, 1879, and January 1, 1880, and the testimony in respect thereto taken August 18, 1882, worked no injury to plaintiff, as it clearly appears from “Exhibit A33 to the report of the referees that they did not charge him with the proceeds of either of said notes, or any part thereof. Besides this, the testimony of defendant -tended to prove plaintiff got a portion of the money borrowed on these notes, but was evidently regarded by the referees insufficient to establish that such was the fact. In the light of the surrounding circumstances, we are not prepared to hold the testimony taken September 1, 1882, and the accompanying “statement33 were not admissible as tending to show a circumstance corroborative of the claim of defendant; and had plaintiff so desired he could have cross-examined defendant upon the “statement.” We do not regard the testimony of Tucker, Stice and Hamilton as ineo2npetent on the ground that they contradicted plaintiff on an hnmaterial matter called out on cruss-exami nation. The evidence showed that plaintiff had refused to exhibit or deliver to defendant the account boobs and papers which came to his hand and were kept by him as agent for the latter, and that he afterward mutilated and destroyed the account books. When upon the witness stand in his own behalf he testified in explanation of his conduct, that he had reason to believe and did believe from the advice and opinions of others that Doctor Randall would take advantage of him if he got the account books and papers away from him. On ei’oss-examination he na2ned Tucke2>, Stice and Hamilton as parties who had warned him against Randall, and they were called to contradict him in this respect. Our conclusion is, there was no manifest error in refusing to sustain the first exception to the report.

The second and third exceptions to the report of the referees challenge the finding that Butler had received or was accountable for $38,176.05.

The second exception is general in its terms. The third specifies, by reference to a tabulated statement, amounts objected to that aggregate $11,382.32. We have examined the testhnony reported by the referees and find there is evi-„ dence to support each and all of the items of charge thus specified. True the evidence is conflicting in regard to them; but the í’eferees, while performing the functioi2s of a jury, are the judges of the credibility of the witnesses and the weight of evidence, and their findings and conclusions of fact are entitled to the same consideration the verdict of a jury receives. We are-unable to say the testimony does not sufficiently support the finding in question. It is further objected that the last four ite2ns in the tabulated statement, amounting in the aggregate to $37.80, are not in the account that was filed with the plea of set-off. If this be so, then plaintiff shoxrld have raised this objection in the Circuit Court, and specified it in the exceptions. Had this been done, defendant could readily have obtained leave to amend his account. An objection on the ground stated, can not be heard in this court for the first time. St. L. Nat. Stock Yards v. Himrod, 88 Ill. 410.

The fourth exception to the report was to the finding that the total amount paid out by Butler for ¡Randall, and the amount due the former for wages, aggregated 831,550.95-But it is not claimed by plaintiff in error in his brief and argument that the referees came to an incorrect conclusion in this regard. So we are saved the labor of an examination with reference thereto.

The fifth and last exception calls in question the finding that 86,625.10 was due from Butler to Randall.

¡No special point arises under this exception, as the conclusion announced by the finding follows from the findings already considered, by the simple process of subtraction.

A few other objections to the report of the referees are urged in the brief, and these we have not noticed, and for the reason that under the doctrine announced in St. L. Nat. Stock Yards v. Himrod & Co., supra, we are precluded from considering any objections to the report of the referees that were not made in the Circuit Court.

We find no sufficient cause for reversing the judgment, . and it must be affirmed.

Judgment affirmed.


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    Cornelia P. Richey, Administratrix, v. J. Marion Fort, Administrator.

      Administration—Agreement to Pay Certain Stun as Needed—Claim for Balance.

    1. An agreement to pay certfiin amounts, limited to a certain sum. as needed, is equivalent to an agreement to pay the entire sum as needed.
    2. In the ease presented, it is held: That the intention of the parties to the contract in question was that the money due the father for his land should only be paid to him as needed; that on the balance interest should be paid; and that, both having died, the balance remaining unpaid is a valid claim against the estate of the son.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Henderson County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Jonathan Simpson and Grier & Dbyden, for appellant.
    No brief filed for appellee.
   Lacey, J.

This was a claim filed in the County Court by appellant, who was the administratrix of the estate of B. W. Bichey, deceased, against the appellee, who was the administrator of the estate of Thomas G. Bichey, deceased, the latter being the son of the former decedent. There was a judgment in the County Court in favor of appellant allowing the claim against the estate of Thomas G. Bichey, deceased, to the amount of $1,547.60. An appeal was taken to the Circuit Court, where, upon a trial, the claim was disallowed, and from this final order of the Circuit Court this appeal is taken. We think it sufficiently appears from the evidence that on the 30th day of July, 1881, B. W. Bichey conveyed to his son a certain quarter section of land in consideration of the sum of $5,000; that $2,500 was paid down by Thomas G. Bichey and that the following contract was entered into in regard to the balance, to wit:

“Kirkwood, III., Aug. 5, 1881.
“For value received and sufficient consideration I hereby agree, binding myself and executors or administrators to the same, to pay B. W. Bichey one hundred and seventy-five dollars ($175), on the fifth day of August of each year during his natural life. Should said annual payment prove insufficient for the necessities, wants, or comforts of the said B. W. Bichey, I,- by these presents, bind myself and heirs to advance such additional sums of money as may from time to time he required, or necessary, to supply all such wants, or to in any way minister to his comforts or satisfaction; provided always, and this pledge is made on condition, that the sum total of all such advances and payments shall not exceed the amount of interest and principal of twenty-five hundred dollars (§2,500); interest commencing on same August 5,1881, and reckoned at the rate of seven per cent, per annum.
“ Thomas G. Bichey.55

Thomas G. Richey paid, during his lifetime, on this agreement, the sum of §1,410.60, and his heirs, after his death, the sum of §156.25, in different payments. Thomas G. Richey died in December,, 1885, and R. W. Richey February 10, 1886.

It is supposed by the appellee, and the court below took the same view of the matter, that this was a composition agreement, the substance and meaning of which was, that all payments should cease at the death of R. W. Richey, and that any remaining balance not called for during his life was not to be paid, but to inure to 'the benefit of Thomas G. Richey, or his estate.

At first blush and by a casual reading of the agreement, this might seem to be the proper interpretation, but upon cleaier scrutiny we are satisfied that it is not its proper meaning.

We'think that any balance of the $2,500 remaining unpaid at the death of R. W. Richey would be due to his estate The agreement is illogically and awkwardly expressed, the main clauses being used in the form of provisos, and what should be the subordinate clauses are used as the primary clauses. Its language should be transposed to make its true meaning apparent. At the time of the execution of the agreement, as shown by the evidence, Thomas G. Richey was indebted to his father in the sum of §2,500, the balance due him for land conveyed to Thomas. Transposing the terms of the contract it may be read as follows:

“Ang. 5, 1881.
“For value received I promise to pay R. W. Richey the sum of §2,500,from time to time, as may be required or necessary to supply his necessary wants or comforts and to his satisfaction, and provided that should the annual interest on the said sum at seven per cent. (§175), which I agree to pay annually during his natural life, on the first day of August, each year, prove insufficient for such wants,” etc.

It will be seen that the words used in the contract, “for a valuable and sufficient consideration,” apply to every part of Thomas’ undertaking. Hence he agreed to pay the §2,500 for a valuable consideration. It was not, however, to he paid at once hut only as the father needed it for his necessary comfort and support. An agreement to pay certain amounts limited tc a certain sum, as needed, is equivalent to an agreement to pay the entire sum as needed. But by the terms of the agreement the annual interest was first to be applied to satisfying such wants. If this annual interest on the sum agreed to he paid would satisfy his personal wants, then the §2,500 would not become due until R. W. Richey’s death, as the interest was to be paid during the natural life of the payee, which in itself postponed the payment of the principal to his death. How, in case nothing was paid during the payee’s lifetime the whole principal would remain due at his death, and in case the interest and a portion of the principal liad been paid then the balance only would remain unpaid. The main intention seemed to be that the money due the father for his land should only he paid to him as it was needed and on the balance interest should he paid. This view is strengthened by the evidence that the father was not to receive payment of his land in full, for fear he would ¿unnecessarily spend the money.

There is nothing expressed in the agreement that any balance remaining unpaid at R. W. Richey’s death should be the property of Thomas.

The agreement will not bear the construction that the maker by its terms was compelled to pay seven per cent, interest on the entire sum of §2,500 during the payee’s natural life, notwithstanding a portion of the principal might be paid in the meantime. This provision excludes that idea: “Provided always, and this pledge is made on condition that the sum total of such advances and payments shall not exceed the interest and principal of §2,500, interest commencing on same August 5, 1881, and reckoned at the rate of seven per cent, per annum.” This would regulate the calculation of interest in case of pajments on the principal the same as on any ordinary promissory note. The interest could only be calculated on the balance after deducting payments. The last clause and the first read together would not compel Thomas to pay §175 per year to his father as long as he lived.. It was only in case none of the principal was paid.

The whole agreement taken together was in effect a promissory note for §2,500, due at the -death of the payee, with annual interest reserved at the rate of seven per cent, with a proviso that a portion or all the principal might become due sooner if the payee needed it sooner. There is nothing in the agreement requiring Thomas G. Richey to do anything other than to pay the debt he owed with the interest agreed on.There is nothing that can be construed into a consideration for the claim his administrator sets up for a release from the balance due on the note at R. W. Richey’s death.

The son was not to furnish the father the necessary support during life or at any portion of it. without regard to the amount due. The amount to be paid was wholly regulated by the amount due for the land. There was no express agreement in lhe contract that Thomas was to be released from the payment of any balance of the §2,500 remaining due at his father’s death. An administrator may always collect what was owing to his intestate whenever it becomes due, and the balance owing on the agreement in question became due, as we hold, on the death of R. W. Richey. It follows from what has been said that the court erred in disallowing the claim. The judgment of the court below is reversed and the cause remanded.

Seversed and remanded. .


text:
    The City of Sterling v. Lucy A. Merrill.

      Municipal Corporations—Defective Sidewalk—Personal Injuries—Evidence—Instructions—New Trial—Netoly Discovered Evidence.

    In an action against a municipal corporation to recover damages for personal injuries caused by a defective sidewalk, it is held: That the evidence sustains the verdict for the p fain tiff; that it was not error to refuse an instruction which was in substance a mere repetition of others given; that certain other instructions asked were properly refused; that the plaintiff was not bound to show that the city had actual notice of the defect m the walk; and that the newly discovered evidence, being merely cumulative and not conclusive, was not sufficient ground for a new trial.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Whiteside County; the Hon. William Brown, Judge, presiding.
    This was case, to recover damages for personal injuries alleged to have been occasioned by a defective sidewalk on the east side of B Street, between Third and Fourth Streets, in the City of Sterling. The defect shown by the evidence was a hole about a foot wide and four inches deep, caused by a missing board. Verdict and judgment were for Lucy A. Merrill, plaintiff below and appellee here, for $2,000 damages.
    Among the instructions asked at the trial by the appellant corporation and given by the court, were the following:
    “ 3. The court instructs the jury that while there is a duty placed upon the corporate authorities of a city to keep the streets and sidewalks of the latter in a reasonably safe condition, there is also the corresponding duty required of the plaintiff to use reasonable care in passing over such streets; that the one duty is as clearly required by law as the other, and if the j nry believe from the evidence that at the time of the alleged injury the city authorities were not guilty of a want of reasonable care in reference „to the sidewalk in question, or that such authorities, under all the circumstances, gave a reasonable amount of attention to such walk, and kept the same in reasonably safe condition, or if the jury believe from the evidence that plaintiff, under the circumstances, failed to exercise reasonable care "at such time and place, the jury will find the defendant not guilty.”
    i54. The court instructs the jury that, if they believe from the evidence that the plaintiff alone was in fault, or that the plaintiff and defendant were equally at fault, the former in not exercising ordinary care in passing over the sidewalk, the latter in not keeping its sidewalks in due repair, then the plaintiff can not recover in this case for the injuries complained of.”
    . i£7. The court instructs the jury that medical testimony is to be considered by the jury the same as the testimony of any other witness in this case; and if the jury believe, from all the evidence in the case, that the plaintiff was not injured by the fall on the sidewalk, or that her injuries were slight, or that the plaintiff has not in good faith tried to relieve herse’f of the disability attending or consequent upon the original injury, then they shall take these circumstances, if proven by the evidence, into consideration, with the other evidence in the case, in determining the extent of the original injury, and the damages to be awarded plaintiff, if any, for such injury.”
    And among the instructions which were submitted by appellant and refused by the court, were the following:
    66 A. The jury are further instructed that if they believe from the evidence that the plaintiff might, in the exercise of ordinary care and caution, have avoided the opening in the sidewalk, and that her omission so to do was the direct cause of the injury complained of, then she was guilty of such negligence as will prevent a recovery in this case.”
    ‘£C. If the jury believe from the evidence that the sidewalk in question, where the plaintiff claims to have received her injury, was repaired and placed in good condition by the city within a reasonable time prior to this alleged accident, and if the jury believe from the evidence that said walk afterward became out of repair without actual notice to the city, then the plaintiff can not recover.”
    “G. The court instructs the jury that if they shall believe from the evidence that the plaintiff, by the ordinary exercise of will on her part, could have used her arm for the ordinary purposes of life at or shortly after the injury complained of, and that she refused or neglected without cause so to do, then the disability or impairment of her arm since then resulting from such neglect and refusal, is not an element of damage for which recovery can be had. The law requires that a person injured should in good faith and in the exercise of all reasonable means, strive not to augment but to cure or mitigate a physical disability incurred.”
    Messrs. A. A. Wolfersperger and J. E. McPherran, for appellant.
    Messrs. W. and W. D. Barge, for appellee.
   Baker, J.

The evidence sufficiently sustains the findings of the jury that the sidewalk was out of repair, that the city had constructive notice of the defect and was guilty of culpable negligence in not having'it repaired, and that the injuries to appellee were caused by such defect at a time when she was passing over such sidewalk, and in the exercise of reasonable and ordinary care. The evidence at the trial was somewhat conflicting, but the conflicts in the testimony have been settled by the jury in favor of appellee. There is no just ground for holding the verdict was unauthorized and improper.

It is not here assigned as error that the damages are excessive; nor was it made a point in the written motion for a new trial, filed in the Circuit Court, that the damages assessed by the jury were excessive.

Mo complaint is made of any of the instructions given for appellee. From those given at the instance of appellant, it appears the jury was quite fully and liberally instructed in its behalf. It is claimed that it was error to refuse the instructions “ A,” “ C ” and “ G,” respectively. The first mentioned is somewhat ambiguous, and seems to assume that if plaintiff might have avoided the opening in the sidewalk, then her omission to do so established the fact of a want of ordinary care and caution; but, waiving this and other criticisms that might be suggested in respect to its form, the legal principle upon which it is based is that the plaintiff was not entitled to recover compensation for the injuries received unless she was in the exercise of ordinary care at the time of her fall upon the sidewalk; in other words, that ordinary care on her part was a condition precedent to the right of action. The same doctrine was quite clearly given to the jury in instructions three and four. It was not error to refuse an instruction which was in substance a mere repetition of others that were given.

Instruction “0” was properly refused for the reason it ignored the duty of the city authorities to exercise reasonable care and diligence to ascertain and know the condition of its sidewalks. It imposed too heavy a burden of proof upon appellee, by requiring that the jury should find as a fact that the city had actual notice of the defect in the walk. Constructive notice to the city and its officials was sufficient. Even though the sidewalk in question might have, been repaired and placed in good condition by the city within a year or six months, or one month, or even a shorter space of time, prior to appellee’s fall, and even though the jury had found it would be unreasonable to require the city to overhaul and place in good repair its various sidewalks oftener than once in a year, or six months, or month, as the case may have been, yet, if, as matter of fact, this particular defect had existed for a week or ten days, and the jury believed from the evidence that by the exercise of reasonable care and diligence the municipal authorities could and would have ascertained the existence of such defect and have remedied it before the injury occurred, then the city would be legally liable. Besides this, there was no evidence upon which to base the instruction, as it did not appear from the testimony that the sidewalk on the east side of B Street was ever, prior to appellee’s fall, repaired by the city. The rule announced in refused instruction “Gr” is, that while the city would be responsible for injuries occasioned by its own negligence, yet it would not be liable for any aggravation of the injury caused by the subsequent negligence or misconduct of appellee. The . only aggravation of injury by the latter, suggested either in the instruction or by the testimony, is increased impairment of the use of the arm caused by her failure to exercise it to the extent she could. It would have been well enough to have given this instruction, but as the legal principle contained in it, although expressed in different words, was given in the 7th instruction, we can not say that the action of the court in refusing it was erroneous.

The newly discovered evidence relied upon by appellant was merely cumulative, and was inconclusive in its character. The court, therefore, properly denied a new trial on that ground.

We find no error in the record, and the judgment is affirmed. '

Judgment affirmed.