text:
    The Sangamon Coal Mining Company v. William Wiggerhaus.

      Mines—Sec- 8, Chap. 93, 5. S.—Application—Personal Injury—Recovery Sustained.

    Sec. 8, Chap. 93, R. S., applies to mines in which the cars are drawn by mules as well as to those in which they are operated by machinery.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Patton & Hamilton, for appellant.
    Messrs. Orendorfe & Patton and James E. Dowling, for appellee.
   Conger, J.

This was a suit brought by appellee against appellant to recover for injuries received by appellee while in the employment of appellant.

Appellee was engaged in loading cars, and it was his duty to get empty cars, which he had to push from a switch, some fifteen or twenty feet from a door placed across the track, down the track through the door to the points where needed, in order to have them loaded. The door was between five and six feet wide, built with the intention to have it open either way, and necessary to be so placed in the gangway, for purposes of ventilation. From the switch back to the door the track descended so that the cars would, of their own momentum, run toward the door. Appellee claims at the time of receiving the injury that the door in question worked hard and would not readily open to the inside, but would easily open outwardly or toward the place where the switch was, whither he was going for empty cars. That just as he had pushed the door open and passed through it, some loaded cars just in front of him, for some reason, came back against him, and being unable to push the door open, and there not being sufficient room on either side of the track to escape, he was caught between the cars and the frame work of the door and injured.

The declaration consists of three counts. The first is based upon Sec. 8, Chap. 93, which is as follows: “And all underground, self-acting, or engine planes or gangways on which coal cars are drawn and persons travel, shall be provided with some proper means of signaling between the stopping places, and the end of said planes or gangways, and sufficient places of refuge at the sides of such planes or gangways shall he provided at intervals of not more than twenty feet apart.”

It is insisted by appellant that this provision does not apply to gangways, where, as in the present case, the cars were drawn by mules, but only to those mines where the cars in the gangways are operated by machinery.

We can not assent to this construction of the section referred to, but think the word “underground,” qualifies and describes both the words planes and gangways, so that the true meaning may be thus expressed: “All underground self-acting or engine planes, or all underground gangways on which coal cars are drawn and persons travel shall,” etc. This construction would carry out the evident intention of the Legislature, which was to afford protection to those engaged in operating mines, without referance to the motive power used in moving cars. The second count is substantially the same as the first, with the further allegation that it was the duty of appellant to keep the door across said underground planes or gangways in such condition as that they could be easily opened with safety to persons, etc.; avers a breach, and that whilst traveling on said gangway the plaintiff was unable to open a door across the same or pass through it, and as a result he was injured by some loaded cars striking him and throwing him between them and the door and side of the gangway.

The third count is based upon the common law liability of appellant for its failure to keep sufficient space on the sides of its underground planes, etc., and gangways free of all obstruction, so that persons traveling on them could step aside on the approach of cars and avoid injury, etc.

It would accomplish no useful purpose to give even an outline of the evidence. As usual in such cases it was somewhat conflicting, but from a careful consideration of it all, we think the jury were warranted in finding that the injury was caused by appellant’s negligence, without fault upon the part of appellee.

Neither do we think the instructions justly subject to the objections made to them; but when they are applied to the different counts of the declaration they are substantially correct. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George B. Anderson v. Franklin Henderson.

      Drainage—Dominant and Servient Estates—Evidence—Conflict—Injunction.

    This court declines to disturb a decree enjoining the defendant from opening a ditch to flow surface water upon complainant’s premises, the evidence being conflicting and there being sufficient to support the decree.
    [Opinion filed May 24, 1887.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.

      Mr. W. B. Carlock, for plaintiff in error.
    Mr. Frank B. Henderson, for defendant in error.
   Per Curiam.

Anderson is tenant for life of the southwest quarter and Henderson owner in fee of the southeast quarter of section 6 in the Town of Towanda. The south part of each is low and marshy. Henderson claimed that parallel with their dividing line and about 600 feet distant, in the Anderson tract, is a ridge which, though slight, is sufficient to prevent the water west of it from flowing east on him, unless the natural outlet southwest is obstructed or the amount collected very unusually heavy. Anderson claims that this water naturally flows both southwest and southeast, and that there is no such divide across the slough on his land, and to drain it, cut a ditch from a point west of the alleged line of elevation to Henderson’s. Henderson dammed it on what he claims is the divide, Anderson proceeded to re-open it and Henderson filed the bill herein to enjoin him. On final hearing the injunction was made perpetual and Anderson brings the record here on a writ of error.

The controversy hinges on the question of fact whether there is such a divide in the natural condition of the land, on which many witnesses—surveyors, highway commissioners, old residents of the neighborhood and others, w.ere examined. It would require a large space and yet serve no useful purpose to discuss the evidence here. Although it is contradictory as to the existence of the divide to the natural course of the surface water from the land west of where it is claimed to be, there is certainly a very large amount, if not a decided preponderance, in support of the allegation of the bill. And if it be true there is no case for the application of the rule declared in Peck v. Herrington, 109 Ill. 611, Commissioners of Highways v. Whitesitt, 15 Ill. App. 318, and Wagner v. Chaney, 19 Ill. App. 546. There is no natural course for the water in question on Anderson’s land to Henderson’s, and his is not in its natural condition the dominant estate. Perceiving no error in the record that should reverse the decree it will be affirmed.

Decree affirmed.


author: Per Cruriam.

text:
    E. S. Fowler v. August Peterson.

      Wages—Action to Recover—Witnesses—Question for Jury—Instructions —Verdict—Surplusage.
    In an action for wages it is held: That it was for the jury to determine whether to believe the plaintiff or defendant, they being the only witnesses; that there is no substantial error in the instructions; and that the verdict is not vitiated by surplusage.
    [Opinion filed May 24, 1887.]
    Appeal from the County Court of Sangamon County; the Hon. J. H. Matheny, Judge, presiding.
    Mr. N. M. Broadwell, for appellant.
    Mr. Joseph M. Grout, for appellee.
   Per Cruriam.

This suit was for a balance claimed for wages, brought by appellee before a Justice of the Peace, and appealed to the County Court, where he obtained a verdict for §137, remitted §5 and. took judgment for §132. The parties were the only witnesses. Their testimony was contradictory as to the rates per month which plaintiff claimed were agreed on for different periods of his service; and notwithstanding the defendant’s entries in his memorandum boob, agreeing with his statement, the jury appear to have allowed a greater weight to the testimony of the plaintiff. For what reason they did it we can not know from the record, nor can we determine that they had none that was good or sufficient. It was their right and duty to do so if to their minds it had the greater weight. The instructions were few and brief, but clear, and, as we think, correct and sufficient. The first for the plaintiff is certainly the law, where there is no disparity, or none that is marked, in the number of witnesses on the respective sides. The second does not assume any fact, is purely hypothetical, and might as well have been asked by the defendant. The finding, by the verdict, that the amount was “wages due plaintiff as a servant or laborer,” was, at the worst, only surplusage, and did not vitiate what' preceded it.

Judgment affirmed.


author: Pleasants, P. J.

text:
    John R. Binnie v. John D. Walker.

      Fraudulent Conveyances—Bill to Set Aside—Evidence—Execution.

    Upon a bill filed by a judgment creditor to set aside, as fraudulent, the conveyance by the judgment debtor of certain lots, it is held: That the evidence sustains the decree for complainant; and that, to support the action, an execution returned nulla bona was not necessary.
    [Opinion filed May 24, 1887.]
    In error to the Circuit Court of McDonough County; the Hon. C. J. Schofield, Judge, presiding.
    Messrs. C. F„ Wheat and Prentiss & Baily, for plaintiff in error.
    The evidence of all facts necessary to sustain the decree should have- been preserved, either in the decree or by a certificate of evidence; and if sufficient evidence is not found in the record, the case should be reversed. Wolf v. Ogden, 66 Ill. 224; Mess. v. McCall, 75 Ill. 190; Pankey v. Raum, 51 Ill. 88; Brooks v. Martin, 64 Ill. 389.
    Messrs. Voss & Sherman, for defendant in error.
    In a naked bill to set aside a fraudulent conveyance, as an impediment to an execution, it is not the law—as counsel for plaintiff in error insist—that efforts shall be first made to collect the debt from personalty, or that execution be returned nulla bona', bill may be filed instantly after recovery of judgment. Weightman v. Hatch, 17 Ill. 281; Miller v. Davidson, 3 Gilm. 518; Beach v. Bestor, 45 Ill. 341; Greenway v. Thomas, 14 Ill. 271; Newman v. Willets, 52 Ill. 101; Fusze v. Stern, 17 Ill. App. 429.
    If a special finding of facts is embodied in the decree, and such facts are sufficient to sustain the decree—in the absence of a certificate of the Judge or a bill of exceptions signed and sealed by him that all the evidence heard upon the trial appears in the record filed in this court—this is conclusive. Allen v. LeMoyne, 102 Ill. 25; Walker v. Abt, 83 Ill. 231; McIntosh v. Saunders, 68 Ill. 128; Davis v. American and F. C. U., 100 Ill. 313; Groenendyke v. Coffeen, 109 Ill. 325; James v. Dexter, 113 Ill. 654; Kelsey v. Starkey, 11 Ill. App. 84.
   Pleasants, P. J.

This was a bill filed by Walker as a judgment creditor of William Binnie, to set aside as fraudulent his conveyance of certain lots described, embracing all his real estate, to his son and co-defendant, the plaintiff in error. A decree was entered as prayed for.

Questions of fact only are involved. The conveyance was made before fhe judgment was recovered, and it is said the evidence fails to show either of the essential facts; namely, that complainant was then a creditor of William Binnie, and that the latter had not other property, subject to execution and sufficient to satisfy the claim, and that John E. participated in his fraudulent purpose to hinder its collection, if any such there was.

It does not appear that the evidence contained in the record is all that was produced on the hearing, and yet, we think, there is enough to sustain the decree. William told Walker that if he (Walker) beat him on the judgment, he (William) would beat him on the execution, and though the date of this statement is not given, the fair inference is that the claim against him was then in existence and the conveyance had not been made. He also told Maxwell, and at another time Harrocks, that he had made it because of this threatened judgment, which would j'ustify the further inference that he believed it had defeated the execution; in other words, that he had not other property subj’ect to it and sufficient to satisfy it, especially since^the statement last mentioned was made to another creditor who held an unrecorded mortgage upon part of the premises so conveyed, by way of excuse for executing a deed and putting it on record ahead of that mortgage. Harrocks further testified that John E. was present at their conversation, and that fact is sufficient, in view of his relation to William, to charge him with participation in the latter’s purpose to hinder Walker in the collection of his debt. Other circumstances, connected with the alleged consideration for the conveyance, tend to prove the same, but it is unnecessary to state them.

In a bill of this character it is not requisite to show that complainant had an execution returned nulla iona. The recovery of a j'udgment, with right to have execution, is sufficient. Weightman v. Hatch, 17 Ill. 281, 286; Beach v. Bestor, 45 Ill. 341, 346; Newman v. Willetts, 52 Ill. 101; Fusze v. Stern, 17 Ill. App. 429.

Decree affirmed.


text:
    Charles F. Woerishoffer et al. v. Lake Erie & Western Railway Company et al.

      Injunctions—Dissolution of Temporary Injunction—Premature Assessment of Damages—Practice—Evidence—Presumption.

    1. An assessment of damages made upon the dissolution of a temporary injunction is premature, unless the cause is then finally determined.
    2. Upon a writ of error to review an interlocutory decree awarding damages upon the dissolution of a temporary injunction, the merits of the casé and the order of dissolution are not involved.
    3. Where the decree finds the facts and the evidence is not preserved in the record, the presumption is that the evidence was sufficient to establish the facts as found.
    [Opinion filed May 24, 1887.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. W. E. Hughes, G. W. & J. T. Kretzinger and H. Crawford, for plaintiffs in error.
    Messrs. Kerriok, Lucas & Spencer, for defendants in error.
    The propriety of the dissolution of the injunction can not be inquired into in this case and therefore the motion to dismiss all errors assigned because of the dissolution should be sustained.
    The complainants prayed for an injunction, the appointment of a receiver, for a statement of an account of the net earnings of the road, and various parts of it, etc., etc., and no final decree has been rendered and therefore an appeal or writ of error does not lie from the order dissolving the injunction. Pentecost v. Magaliee, 4 Scam. 326; Hayes v. Caldwell, 5 Gilm. 33; Keel v. Bently, 15 Ill. 228.
    It is said the evidence should have been preserved in the record on which the court based its finding. The presumption is that the evidence was sufficient to sustain the finding and the law does not require the evidence to be preserved. McIntosh v. Saunders, 68 Ill. 128; Walker v. Abt, 83 Ill. 226; Carne v. Truman, 103 Ill. 321.
   Pleasants, P. J.

March 27, 1885, plaintiffs in error, as holders of certain income bonds of the defendant railway company, filed the bill herein to prevent a meeting of its stockholders which had been called to ratify an agreement between its directors and those of the Lake Erie & Mississippi Bail-road Company for the consolidation of said corporations, and divers other acts and proceedings alleged to be contemplated by the defendants. It is quite voluminous, containing many averments and charges as grounds for the relief asked. A preliminary injunction was allowed, without notice, by one of the Judges of the Eleventh Circuit at Chambers. On answer with affidavit in support thereof, defendants gave notice of a motion to dissolve it, to be heard before another of said Judges. Thereupon complainants presented to him a petition for a change of venue, which was denied, and their solicitors declining to appear further upon the motion the same was allowed and the injunction dissolved. On the same day defendants filed their suggestion of damages, which was afterward heard by the same Judge who awarded the writ and taken under advisement, and, at the November term next following, an order was made which recited that the court having heard the evidence, both oral and documentary, produced as to the amount of the damages sustained by the defendants by reason of the issuing of such injunction, and being fully advised in the premises, doth find: That the defendants employed John B. Cohrs and Benj. B. Lucas, solicitors of this court, to prosecute the dissolution of the injunction, but that no price for such services was agreed on as to either of said solicitors, either before or since the granting of such injunctions, and that reasonable compensation therefor would be $1,50(1, and, therefore,” ordered that complainants, within twenty days, pay said sum to defendants for their damages in that behalf sustained. Complainants thereupon sued out this writ of error.

We do not understand that the record so brought here presents for our consideration the propriety of the order of dissolution, or any question touching the merits of the principal case. Besides the‘injunction, other and substantial relief is prayed for. If the theory of the bill is sound and its averments shall be established by proof, complainants will be entitled to a decree giving them all the benefits of the injunction, notwithstanding its temporary dissolution. But there has been no final disposition of the cause below, and therefore there can be no review of it here. The award of damages, however though incidental to a merely interlocutory order, is itself of the nature of a final money judgment, on which a writ of error will lie. The question then is, the temporary injunction having been dissolved and the order of dissolution being beyond the reach of our review, was there error in awarding the damages complained of 1 This view disposes of several of the errors assigned. Of the others, those urged on the argument are that there is no evidence preserved in the record to justify the award of any damages, and that the amount awarded is excessive.

As to the preservation of evidence, the rule is the same with respect to damages on suggestion filed as to any other fact involved in the case. Hamilton v. Stewart, 59 Ill. 330; Albright v. Smith, 68 Ill. 181; Steele v. Boone, 75 Ill. 460. It requires that the evidence be preserved in the record or that the facts be found by the decree. In the absence of the evidence the presumption is it was sufficient to establish the facts as found, and, if these warrant the decree, it will be sustained as against this objection. See cases supra, and to the same effect, McIntosh v. Saunders, 68 Ill. 128; Spring v. Collector, 78 Ill. 101, 107; Morgan v. Corlies, 81 Ill. 72; Walker v. Abt, 83 Ill. 226; Allen v. LeMoyne, 102 Ill. 25; Groenendyke v. Coffeen, 109 Ill. 325.

In this case, upon evidence heard but not preserved, the facts were found, to wit, the employment of the solicitors named, without any express agreement as to the amount of compensation, their service and its reasonable value, and although the sum allowed may seem excessive, the presumption referred to is conclusive. If complainants were dissatisfied with it they should have preserved the evidence, to enable this court to judge for itself of its reasonableness.

We are of opinion, however, that the assessment was premature, inasmuch as the dissolution of the injunction was not final. If the order had been made upon demurrer or-motion for want of equity in the bill, and complainants had not asked leave to amend, or apparently abandoned its prosecution, as in Albright v. Smith, supra, the cause might have been regarded as finally determined, and then, before filing the final decree (Wing v. Dodge, 80 Ill. 574), the assessment would have been regular. But here it wa's made upon the coining in of the answer denying the charges and allegations of the bill and supported by affidavit. The issues made upon these charges and allega* tions, involving the right to the injunction, are still pending. Defendants themselves so treat them by objecting here, for that reason, to any assignment of error upon the order of dissolution.

In Terry v. Hamilton Primary School, 72 Ill. 479, the Supreme Court say: “It was improper to assess damages until there was a final hearing, and it was determined whether the relief sought should be granted. The only prayer of the bill was for an injunction, and although, by affidavits and other proofs, it might appear to be eminently proper to dissolve the injunction temporarily granted, still, on a final hearing, evidence might have been adduced requiring that there should be a perpetual injunction;” and on that ground the decree for damages was reversed.

The case here is in the same condition, and for the same reason the decree herein will be reversed and the cause remanded.

Reversed and remanded.


text:
    Luella Miller et al. v. Sarah C. Rouser.

      Mortgages—Foreclosure—Fraud—Notes—Statement of Amount Due— Extent of Relief—Evidence.

    Upon a bill to foreclose a mortgage, it is held : ' That without certain incompetent testimony there was abundant evidence to warrant the finding of good faith on the part of the mortgagee; that the statement of a larger amount in one of the notes than was really due did not avoid the mortgage as to a purchaser without actual notice ; that only definiteness or certainty as to the amount, not truth in the statement of it, was necessary; and that the court properly found the amount due on one of the notes, that being the only one upon which relief was sought.
    [Opinion filed May 24, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.

      Messrs. Herrick, Lucas & Spencer, for appellant.
    Mr. W. E. Hughes, for appellee.
   Pleasants, P. J.

March 9, 1876, "William H. Miller executed to appellee a mortgage of certain lots in Bloomington to secure two notes of even date, one for $285.49, due in one year, and the other for $2,000, due in four years, with interest at ten per cent, per annum. It was duly recorded on the same day.

In October, 1883, he died intestate leaving three daughters, all minors, his only heirsi Administration was never granted upon his estate.

In July, 1884, appellee filed the bill herein against them to foreclose the mortgage, describing it and the notes, stating that they were given for an indebtedness in their aggregate amount and were unpaid; but making the smaller one only an exhibit and expressly limiting the relief sought to the claim upon it. Answers were put in by the defendant Luella Miller, who had attained her majority, and for the others by guardian ad litem, calling for strict proof, to which replications were duly filed.

In July, 1877, Samuel Colvin recovered a judgment against said mortgagor, and under execution thereon two of the lots embraced in the mortgage were sold to his son, who obtained a Sheriff’s deed therefor, and afterward conveyed to him. He also was then, on his own petition, made defendant, filed an answer denying all indebtedness from Miller to complainant, and by cross-bill charging that the mortgage was made to hinder and defraud his creditors, asked to have it set aside as a cloud upon his own title. Mrs. Rouser answered denying the fraud charged.

On final hearing upon the pleadings and proofs the court dismissed the cross-bill and granted the relief sought by the original bill, finding that there was then due and owing upon the note the sum of $567.60 and that the mortgage was to that extent a valid lien on the premises paramount to the right of the defendants or any of them.

Mrs. Rouser, rebutting, testified in her own behalf as to the consideration of the note. Except so far as it was her version of the interview with the guardians of the girls, to which they had previously testified at the instance of the defendants, her statements may have been incompetent under the statute. Her mortgage covered other property besides that embraced in Colvin’s deed, and in reference to that, at least, the heirs of Miller had an interest to be affected by them.

But without her testimony, we think, there was abundant evidence to warrant the finding of good faith on her part in taking the mortgage. That there was an indebtedness from Miller to her in a sum very much larger than is specified in the note seems to be fairly proved. Just how that sum came to be specified is not clear, but it is not improbable that it was the principal of one of the notes she had surrendered, with interest added. The evidence exhibits some peculiarities in relation to the larger one which would be more noticeable if the parties had not been brother and sister and comparatively uninstructed in matters of that kind. But it may well be believed that the intention was to fix a sum large enough to cover the indebtedness already existing in items that were not ascertained and some, perhaps, not specifically recalled, together with others then contemplated, but uncertain both in character and amount, and that it was entirely honest on her part, if not on his also.

It is further argued that the statement of a larger amount to be secured than was really due, of itself avoids the mortgage as to Colvin, who afterward purchased the mortgaged premises without actual notice of its existence.

We think the authorities cited for this proposition and the principle on which they rest apply only to securities that state neither a definite amount nor any such data respecting it as would put any one interested in the inquiry upon the track leading to its discovery. Metropolitan Bank vs. Godfrey, 23 Ill. 531; Battenhousen v. Bullock, 11 Ill. App. 665; Bullock v. Battenhousen, 108 Ill. 28. The requisite intended by these cases and by the registry acts is definiteness or certainty as to the amount, and not truth in the statement of it. What the statute designed to secure to creditors and subsequent purchasers is notice of the amount to which the premises appear to be incumbered. This was definitely given to Colvin by the record of this instrument. The truth or accuracy of its statement was a matter for further inquiry by him, if he chose to make it, and such inquiry was proper to be made on the hearing, not only to ascertain the real amount existing but also to discover the intention of the parties as bearing upon the question of actual fraud, which the court was to determine, and if no actual fraud was found, the inaccuracy of the statement would not of itself avoid the instrument.

Again, it is claimed that the court erred in not finding the amount due upon the other note. For this no reason is suggested by counsel or perceived by us. No relief was sought upon that note. It was not in question. The effect of a foreclosure and sale for non-payment of one only will be proper for consideration, if and when it shall be sought for non-payment of the other. The decree showed the exact amount found due on the only claim made by the bill, and for which, in default of payment, the premises were ordered to be sold. That was the extent of the court’s duty in that behalf, in such a case as this. If Colvin, by his cross-bill, had admitted some amount as due and asked the court to ascertain it, that he might redeem, the premises by its payment, it might have been otherwise. But he did not seek to redeem. He sought to have the mortgage set aside, absolutely, as fraudulent and a cloud upon his title. He attempted to establish the allegation of fraud by the evidence offered respecting the large note. The single issue made between him and the complainant in the original bill was on this allegation. On that the court found against him, and properly dismissed his cross-bill. Nothing then remained but to make a decree on the original bill, according to the allegations and proofs, and these did not touch the larger note. In Hards v. Burton, 79 Ill. 504, it was said of notes not yet due,- and for which, therefore, no foreclosure was then sought, that for that reason “ the court was wholly unauthorized to make any decree with reference to them.”

Ferceiving no material error in this record the decree will be affirmed.

Decree affirmed.


text:
    E. T. Davenport et al. v. Commissioners of Drainage District.

      Drainage—Special District—Enlargement—Election of Commissioners —Electors.

      1. Special drainage districts maybe enlarged.
    2, It seems that the provisions of the Drainage Act, authorizing the election of Commissioners by owners of land in the district exclusively, and without regard to their residence or sex, is not in contravention of See. 1, Art. VII, of the Constitution.
    [Opinion filed May 24, 1887.]
    Appeal from the Circnit Court of Mason County; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. I. R. Brown and J. A. Connolly, for appellants.
    Messrs. E. A. Wallace and H. R. Nortrup, for appellees.
   Per Curiam.

This was a petition for certiorari to review the proceedings by which the lands of petitioners, appellants, were sought to be and are claimed to have been brought within-the district named by its enlargement. On hearing upon the return the writ itself was quashed.

Ho point is made upon any supposed want of conformity in these proceedings to the provisions of the statute, if power is thereby given to enlarge this class of districts, which is denied, and the question is new.

By Sec. 52 of the “Act to provide for drainage'for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27, 1885, it is declared of Commissioners of special drainage districts, that they “ shall be a body politic and corporate, with like powers as herein conferred upon other Drainage Commissioners, either by this act or other laws of this State.”

“ Special Drainage Districts ” differ from others, so far as need be here stated, in that (1) they embrace lands in three or more towns, or lands which in whole or part are in a county or counties not under township organization, while others embrace lands wholly in counties under such organization and are either confined to lands in one town only, which are known simply as “Drainage District No. — of the town,” etc. (Sec. 7), or in two where they are known as “union district of the towns” etc. (Sec. 48); and (2) that the Commissioners are elected by the adult owners of the lands embraced in them, while in simple drainage districts the Commissioners of Highways are the Drainage Commissioners “ in and for all drainage districts in their respective towns,” (Sec. 7), and in union districts the Commissioners are three of the Highway Commissioners, selected, a part from each town, by the clerk of the one in which the greater part of the district lies (Sec. 48).

By Sec. 42 it is provided, as to simple drainage districts, that “the Commissioners may at any time enlarge the boundaries of their district, by attaching new areas of land, which are involved in the same system of drainage, and require for outlets the drains of the district made" or proposed to be made, as the case may be, on petition of as great a proportion of the land owners of the district so enlarged, as is required for an original district.

Sec. 48, relating to union districts, declares that the “Commissioners shall have like powers and duties as provided for such officers in districts wholly in one town;” and it is admitted that this gives them the power of enlargement, under such circumstances and upon such petition as are described in said Sec. 42.

Why, then, should not the like declaration in Sec. 52, first above quoted, operate with like effect in favor of Commissioners of special drainage districts?

The only reason presented in argument for excepting them from the grant of this particular power is, that on general principles the powers of a municipal corporation are such only as can be exercised within the territorial limits of the municipality, and to make its admitted grants to districts of the other classes consistent with this proposition, it is said these Commissioners are the Commissioners of Highways, wdiose municipalities arc their respective towns.

But general principles, as a limitation of such powers, do not bind the Legislature, nor furnish rules of construction to the courts where its intention is so plainly expressed. If this is such a power, the statute nevertheless clearly gives it in terms to Commissioners of simple drainage districts; for they have no greater or other power, as such, than they would have if they were not Highway Commissioners, and it is as Drainage Commissioners only, officers of a distinct municipal corporation, that they can enlarge their drainage districts. Hor do they in fact enlarge them by their own act. They are agents of the land owners of the district as proposed to be enlarged, j ust as they are in its original establishment. It is the positive and deliberate request, in the form prescribed by" law, of the parties to be affected by the exercise of this power, that calls it into exercise, and so the general principle referred to is not thereby violated.

Every objection to its exercise by special Drainage Commissioners applies with equal force to the others, and every reason for its possession by the latter with like force to them.

We find appended to the printed argument of counsel a suggestion in writing that the provisions of the Drainage Act authorizing the election of these Commissioners by owners of land in the district, exclusively, and without regard to their residence or sex, is in contravention of Sec. 1, of Art. VII, of the Constitution.

If this point were seriously made they should have taken their appeal to the Supreme Court. Bat we do not regard it as involving a substantial question. The constitutional provisions referred to have, in our opinion, no more application here than to elections of directors of private corporations.

Judgment affirmed.


text:
    Niantic Coal and Mining Company v. Lawrence Leonard.

      Personal Injuries—Action for Damages—Fellow-Servants—Evidence— Questions for Jury.

    In an action by an employe against a mining company to recover damages for an injury, caused by letting the cage down too rapidly, it is held: That the plaintiff and an engineer were fellow-servants in the same line of employment; that the questions whether the engineer was incompetent and whether the defendant knew or should have known it, were for the jury; that the evidence was sufficient to warrant the jury in finding that the engineer was not reasonably fit for his service and that the defendant knew, or by ordinary care might, have known, of his incompetency; and that there was no substantial error in the instructions.
    [Opinion filed May 24, 1887.]
    Appeal from the Circuit Court of Macon County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Nelson & Harnsbarger and Graham & Hamilton, for appellant.
    Messrs. Mitchell & Mitchell, McCartney & Casey and W. T. Cuzzins, for appellee.
   Pleasants, P. J.

Leonard was employed'as roadsman or tracklayer in appellant’s mine, which was operated through a shaft 360 feet deep. On the 17th of September, 1885, the cage in which, with four others, he was descending, was let down with such rapidity as, by the shock, to maim and disable him for life. His account of the occurrence is that “the cage commenced at a brisk speed and increased as we went down. When about half way down it seemed to jump from below our feet. In another instant we were slap against the bottom, and I was crippled.” At the same instant, according to a witness at the top, the other cage, coming up, crashed against the pulleys, fifty feet above the lower and twenty-five or thirty above the top landing. There was also on the cage at the time a railroad tie, placed there and taken down by direction of the pit boss, for use as a prop; but it does not appear that Leonard was hurt by it. In the opinion of the surgeon who attended him, “the injury was not the result of direct force applied at any particular part of the body, but of the jar or concussion from the fall; that a pitch or wrench of the body produced a derangement or partial dislocation of two of the vertebra, not sufficient to suppress the spinal cord, but sufficient to suppress some of the departing nerves.” He received some severe cuts and bruises, but these were not dangerous. Paralysis of the bladder and bowels was the result of this injury to the nerves, necessitating the use of the catheter and injections. He was a man of splendid physique, about forty-four years of age, over six feet in height, and weighing one hundred and ninety pounds. He suffered much pain, and is permanently disabled.

For the injury he recovered judgment below on a verdict for §4,600 which the court refused to set aside.

The declaration counted on negligence of the company (1) through the engineer, in the manner of letting down the cage; (2) in placing the prop on the cage so let down, contrary to the provision of the act concerning “ Miners;” (3) in putting in charge of the engine a person not competent, contrary to another provision of the same act, and (4) upon its common law liability for negligently employing for this service a person whom it knew, or by reasonable care might have known, to be unfit for it.

In reference to each of these alleged causes of action evidence was introduced and instructions were given on both sides.

"We hold that upon the undisputed facts appellee and the engineer were fellow-servants in the same line of employment ; that by his own act in placing the prop in the cage, though directed by the pit boss, appellee would be barred of a recovery for any injury thereby, if he had received any, of which there is no evidence; and that, as to the duty of the company in the employment of the engineer, the statute referred to, in its application to this case, and the common law are substantially the same.

This reduces the controversy here, as we think it was reduced before the jury, to the questions whether the engineer was incompetent and whether the company knew or should have known it. These are in an eminent degree questions for a jury.

It appears that the accident under consideration occurred at the very commencement of his service under a second employment by the company in the same capacity. His first term of some months had ended about a year before. Leonard was not there then and had nó knowledge of him. There certainly is evidence in the record tending to show his unfitness at that time which might well impress a jury.

Instances of mismanagement of the same kind here complained of were of frequent occurrence. He was well liked as a man by his co-employes, who for that reason refrained to a greater extent than might have been expected, from complaint to his superiors; but as an engineer he did not command their confidence. They expressed their dissatisfaction among themselves; and Mr. Graham, who was superintendent during all that period, was not without information of facts that would reasonably have put him on inquiry into this subject. Whatever may have been the recommendations he brought and however slight the complaints against him, Mr. Graham should have known, if it was reasonably possible to know after months of actual trial, whether he was a suitable person for so responsible a position. The magnitude of the danger to which the men were constantly exposed by reason of the depth of the shaft, and the interests of the company involved, made this his duty. It was shown that from his own observation, as well as from information received, he at one time thought of discharging him. Mr. Mooney was then his clerk, and at the time of the second employment of the engineer had succeeded him as superintendent. It is not improbable, therefore, that he was informed of all that Graham was. But whether this be so or not is immaterial, since the company must be charged with whatever notice Graham had-Without a more particular reference to the evidence, which would be useless, we think there was enough to warrant the finding that the engineer was not reasonably fit for this service, and that appellant knew, or by ordinary care to ascertain, might have known it when he was re-employed. The instructions given fairly presented the law applicable to the issues and proof, and justified the refusal of those refused. The one intended to be given for the defendant and so marked by the court but inadvertently omitted, was supplied by the one numbered 6, given for defendant, and those numbered 3 and 5, respectively, given for the plaintiff. Besides, the alleged cause of action to which they would relate could hardly have been considered by the jury further than to find that there was no evidence to sustain it.

Whatever errors occurred in the admission or exclusion of evidence were in our judgment fully cured or too trivial to do any harm. The judgment will therefore be affirmed.

Judgment affirmed.


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    St. Louis, Vandalia & Terre Haute Railroad Co. v. Nicholas Hurst.

      Railroads—Diversion of Surface Water—-Release—Instructions—Evidence.

    In an action against a railroad company to recover damages for. diverting surface water from its right of way, out of its natural course, against and upon the plaintiff’s land, it is held: That a release of all claims for damages by reason of the location and completion of the defendant’s road, contained in a conveyance of the right of way, does not bar the action; that the instructions fairly presented the issues and the law; and that the evidence supports the verdict for the plaintiff.
    [Opinion filed May 24, 1887.]

      Appeal from the Circuit Court of Clark County; the Hon. James F. Hughes, Judge, presiding.
    Messrs. John G. Williams and T. J. Golden, for appellant.
    Messrs. Whitehead & Jones, for appellee.
   Pleasants, P. J.

This was an action of trespass against the railroad company for diverting surface water from its right of way, out of its natural course, against and upon the plaintiff’s land, whereby a wide and deep ditch was cut therein a distance of over 200 yards. Verdict and judgment in his favor for §100 damages.

lie had conveyed to the company for right of way a strip, 100 feet in width, running nearly east and west across his forty-acre tract, and thereby released all claim for damages by reason of the location and completion of the railroad through or upon any part of it. A branch or stream of water ran easterly through this tract, north of the right of -way, to a point near the east line, where turning southerly it crossed the latter and passed on southeasterly. The road bed on this strip was raised from one to three feet, and crossed the stream on trestle work. Through the ditches on the sides, made by throwing up the earth for the road bed, surface water flowed to the trestle from a point about a mile west. When the road was constructed a culvert was put in between 400 and 500 yards west of the trestle, connecting these side ditches. Afterward the latter was filled up and a ditch cut from the north end of the culvert box north to plaintiff’s land. It seems that just at and a little way west of the culvert the natural surface is a trifle higher on the south than on the north side of the road, and the water thus thrown against plaintiff’s land has cut its way further north upon and through it by a zig-zag course to the stream or branch which is four or five feet lower than the land at the fence.

Plaintiff claimed that except for the ditch on the south side of the road much of the water carried by it from the west to the culvert would naturally have flowed southeast; that by means of the side ditches, if they had been maintained, it would have been carried on east to the trestle; that the short ditch from the culvert'north to his laud was not necessary for the proper maintenance of the road bed; that although, at the culvert, there was a slight swag in the natural surface, the water flowed thence southeast and never north over his land, which was higher along the line of the north fence of the right of way.

On the other hand the defendant claimed that these ditches were essential to maintain a solid and safe road bed and that at the culvert there was a natural depression north, by which surface water would flow upon plaintiff’s land at that point.

The case has been here before, on appeal by the company, and is reported in 14 Ill. App. 419. On the last trial the error for which the former judgment was reversed, was corrected by the admission in evidence of the plaintiff’s deed of release to the defendant, of which so much as is pertinent has been stated.

On behalf of the plaintiff the court instructed the jury that if the company “ created a new channel from its right of way into the land of plaintiff, or through it, not reasonably necessary to construct and maintain its road, and the water from the defendant’s road ran through such channel upon or through plaintiff’s land, thereby damaging it, then the plaintiff is entitled to recover,” and for the defendant, as the opposite hypothesis, that if the company “on its right of way constructed ditches or drains reasonably necessary to drain off the surface water from its right of way, road bed and track, whereby surface water was conveyed to and through a culvert under defendant’s railroad, thence down a natural course for water to flow on the land of the plaintiff and into a branch or stream on the land of the plaintiff, then the plaintiff is not entitled to recover in this case, although the jury may believe that some damage was inflicted, and the volume of water from the railroad right of way into said branch or stream was increased from what it was before the construction of said railroad and ditches.”

These instructions fairly present the issues and the law, and the only point made bv appellant is that there was no evidence on which to base the one given for the plaintiff, or to support the verdict. We think it clearly untenable, referring, without discussion, which would be useless, to tire testimony of the plaintiff, of Elisha Ilurst and of Stephenson, the county surveyor, notwithstanding the contradiction by witnesses for the appellant, in view of the uniform result of former trials, the testimony referred to, and circumstances that might be mentioned, we do not feel at liberty to disturb the judgment.

Judgment affirmed.


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    Fleury & Company v. James W. Tufts.

      Sates—Title Reserved by Vendor—Conditional Sale—Bailment—Rescission—Consideration—Remedies—Promissory Notes—Indorsement.

    1. An instrument expressing an absolute agreement to pay a certain sum o£ money at a time speciGed and to a person named, or his order, is a promissory note.
    2. An indorsement of a promissory note for collection does not pass the leg il title.
    3. Where the possession of personal property is delivered to the vendee under a contract reserving title in ihe vendor until payment, the transaction, as between the parties, is a conditio.,al sale, the condition being subsequent and to be performed by the vendee alone.

      4. A sale upon such condition is a good consideration for the vendee’s absolute promise to perform.
    5. The vendee can not, under such a contract, release himself from liability by returning or offering to return the property. The vendor may either resume possession of the property in the case of the vendee’s default., or he may maintain an action on the notes given for the purchase money.
    [Opinion filed May 24, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. McCartney & Casey, for appellant.

      Messrs. Orendorff & Patton, for appellee.
   Pleasants, P. J.

Appellee recovered judgment on verdict against appellant—a corporation organized under the name of Fleury Medicine Company, which was changed, according to law, to that of Fleury & Company—for $213.60.

The declaration was in assumpsit, containing two special counts and the consolidated common' counts, and the only causes of action were two instruments sued on as promissory notes. One was as follows:

“ $100. Speingeield, III., June 8, 1885. “ For value received, October 1, 1885, after date, I promise to pay to the order of James W. Tufts one hundred dollars, with interest at 6 per cent.
“ The consideration of this and other notes is the following described soda water fountain: One 12-5 It. Ho. 2 Arctic Matchless Crusader, Ho. 848, and 3 (10 gall.), 3 (6 gall.) copper founts, which I have received of James W. Tufts, nevertheless, it is understood and agreed by and between us and the said James W. Tufts that the title to the above mentioned property does not pass to us, and that until all of said notes are paid the title to the aforesaid property shall remain in the said James W. Tufts, who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law, to enter and retake, and may enter and retake possession of the said property wherever it may be, and remove the same.
“ Fleuev Medicine Co.,
“ By Fleuby, President.
“Payable at the State Hational Bank, due October 1,1885.”

It bore the indorsement: . “ Pay F. K. Whittemore, Cashier, or order, for collection on my account. James "W. Tufts, Boston, Mass., J. N. North;”—which was erased by plaintiff on the trial.

The other was precisely like it in all particulars excent the time when payable, which was December 1, 1885.

In addition to the general issue to the whole declaration, defendant filed six special pleas, which were all adjudged insufficient on general demurrer.

Of these the first two are pleas of a want of consideration, which could be proved, if true, under the general issue. But they, in terms, show a good consideration, and then set up what 'is pleaded in those following as a total failure thereof. We think these latter do not show such failure. Thus, the 4th avers that the consideration was the sale and delivering of the apparatus described which plaintiff promised to deliver; that he did deliver as promised, but reserved the title, and that defendant has paid for the use and possession, §150, the full value thereof. But it does not aver directly, nor set forth enough of the contract to show that by it he was bound to part with the title, absolutely, before or concurrently with the payment of the notes sued on. The 5th avers that plaintiff contracted to give the possession and use of the apparatus to the defendant, who was to pay therefor §50 on such delivery, §90 on the 1st of August, 1885, and §100 on the first of each second month thereafter until §935.60 should be paid (two of which installments were evidenced by the notes in suit), and that then it should become the property of defendant, but until then the title should remain in plaintiff; that he did deliver it to defendant, in whose possession it still is, and that defendant made the first two payments (§50 and §90) at the time so appointed, but on September 1, 1885, tendered the property back to plaintiff in as good condition as when received, since which time it has made no claim to it or any interest in it, nor ever received or acquired any, but held and still holds the same subject to the order of plaintiff. This plea also fails to state a contract which would authorize defendant to return the property and thereby discharge its notes outstanding for unpaid installments of the price; nor does it directly aver that by any contract between the parties it had such right, nor that plaintiff had failed in any particular of the agreement on his part, or otherwise justified its rescission by defendant. And the 6th was in substance like the 5th.

After demurrer sustained, an “amended and additional” plea was filed, by which, in addition to the matter set forth in the 5th and 6th as originally put in, it was averred that by said agreement it was expressly provided that “ if the defendant failed to pay any of the amounts at the time they each became due, the penalty for such non-payment should be the re-delivering of said apparatus to plaintiff,” and that this right to re-enter and take possession of it should be his only remedy. A general demurrer to this plea was sustained also, on what ground we do not clearly see. But neither is it perceived how any harm could have been done by it, for the court permitted an attempt to prove the contents of a lost agreement in pursuance of which it was said the notes sued on were executed and that it embraced an express provision to that effect, which may have been proper under the general issue. But the jury must have thought, and in our opinion rightly, that the attempt entirely failed, for they were instructed that if they believed from the evidence that there was a contract which provided that the defendant might return the fountain when it became unable to pay any part of the purchase money, and that it did in a proper manner attempt to return it as so provided, then their verdict' should be for the defendant. This permission and instruction also cured the error, if there was any, in sustaining the demurrer to the other special pleas.

The instruments sued on, being absolute agreements to pay a certain sum of money at a time specified and to a person named, or his order, are promissory notes even under the Statute of Anne, and clearly so under ours. Their production made & prima facie case against the defendant and the court properly overruled the motion to exclude the evidence. The indorsement to the cashier for collection on payee’s account did not transfer the legal title. Best v. Nokomis National Bank, 76 Ill. 608. If it did, the payee, being repossessed, could erase the indorsement and sue in his own name. Ibid.

As we have seen, there was no sufficient proof that the contract between the parties was different, in any particular bearing on the issue herein, from that set forth in these instruments, and it is not denied that before they became due appellant was ready and willing and offered to return the property to appellee. The only question then, is, whether, under this contract, it had the right, by returning it, to release itself from the obligation of its notes.

We are of opinion that, under the law as held in this State, the transaction was not .a bailment, nor a contract to deliver or to sell, in future, on the one part, nor to accept and pay on the other, hut a present actual delivery and acceptance, and a sale, subject only to a condition which was subsequent and to be performed by the vendee alone, and to that only as between the parties. Murch v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 447. Appellee’s title when he delivered, is conceded to have been perfect. Upon delivery it was out of his power to rescind or change the contract except upon consent or default of appellant. Default or inability to perform on his own part was impossible because nothing remained to be done by him. Appellant’s right to have the same perfect title was assured against everything but his own failure. Surely a sale upon such condition must be a good consideration for the vendee’s absolute promise to perform it, and since appellee could not rescind or change the contract, nor by any act or omission defeat this right of appellant, we do not see on what principle the latter could rescind or change it without his consent by the contract itself or otherwise given. Clearly such right is not reserved to him by the contract. The condition is for the benefit of appellee, exclusively. If Fleury had a different understanding, it is not shown to have been authorized by anything appearing in the evidence. He may have hoped, because appellee had this remedy, that he would resort to it, hut he ought to have seen that it was optional with him and in addition to his right of action on the notes.

Of the refused instructions, those that were not substantially embraced in the one given were mere truisms, not specially called for by anything in the case, and could have been of no advantage to appellant, if given. Under no proper instructions, upon this evidence, ought the verdict to have been different.

Judgment affirmed.


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    The Springfield Engine and Threshing Company v. Edward W. Green.

      Malicious Prosecution—Action against Corporation and its Agent-Agency—Express and Implied Authority—Evidence—Instructions—Probable Cause.

    L Although a corporation can act only through its agents, it may be liable for a malicious prosecution.
    2. The scope of an agent’s authority may he shown by circumstances as well as by proof of express authority. It includes whatever is fairly implied by the authority expressly given.
    8. To he implied, as within the scope of the authority expressly given, the act or proceeding must be of itself necessary, usual or appropriate to the end expressly contemplated by the contract of agency, or to meet an exigency naturally arising in the ordinary course of the business intrusted to the agent.
    4. In an action on the case for malicious prosecution' against a corporation and one of its agents, brought by a debtor of the former who had been charged with forgery by the latter, the charge being dismissed upon the preliminary examination, it is held: That the agents of the defendant corporation do not appear to have had authority, express or implied, to institute the prosecution in question ; that- the authority of its agents was not extended by what they said or did, se; arately or together, apart from the company; that the corporation had no pecuniary or other special interest in the prosecution complained of; that there was probable cause at least as to one of the agents of the corporation; and that there was error in the instructions and in the admission of evidence.
    [Opinion filed May 24, 1887.]
    Appeal from the Circuit Court of Macon County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Palmer, Robinson & Shutt, for appellant.
    Messrs. Eldridge & Hostetler and I. A. Buckingham, for appellee.
   Pleasants, P. J.

In an action on the case for malicious prosecution appellee recovered against appellant and one Albert Hanacke a verdict for $5,000 which the court refused to set aside, and judgment having been entered thereon the company took this appeal.

It made threshing machines at Springfield, Ohio, and Hanacke sold agricultural implements at Cerro Gordo, Illinois. In January, 1881, he engaged to 'sell its manufactures within a certain district in this State, for the season ending October 1st, on terms set forth in their written agreement, of which we need to state no more than that he was to “guarantee all notes good when taken by him and attend to the collection, when necessary, or obtain further security on or the renewal of such as should not be paid promptly at maturityto sell at the retail price in Springfield, adding freight and charges, and see that every machine sold by him was properly set up and started to work; and was to receive a commission of twenty per cent, in full for all his labor and expenses in connection therewith. It also declared that said instrument “ in printing and writing contained the entire agreement between the parties and that no outside verbal understanding should be of any force or effect whatever.”

Late in June he sold one of its threshers to appellee for $550, and delivered it early in July without receiving any money, note or other thing in payment. About the 13th of October, Yan II. Cartmell, a director of the company, then traveling for it to make sales and to settle accounts with agents,” in company with him, called on appellee for a settlement, which he then effected by taking two notes of appellee and his brother, one for $332.72 and the other for $221.58, payable respectively outlie first of January and October, 1S85. Nothing was then said about the rebate order hereinafter mentioned.

The first of the notes was presented by a hank cashier from Springfield for payment shortly after it matured, but was not paid. It was afterward sent by the company to Hanacke for collection. He delivered it for that purpose to E, S. He-Donald, an attorney at law, of Decatur. From his possession it disapneared under circumstances which excited his suspicion of appellee, to whom he had shown it in his office, and who thereafter assigned its non-production as the reason for refusing to pay it.

About the middle of June, 1885, Frank Gf. Thomson, appellant’s “traveling collector of past due paper for the west and northwest,” with Manacke and McDonald, called on him and endeavored to effect an arrangement of the claim. Appellee still required that the note be produced or a bond of indemnity given. He says Thomson claimed he was a lawyer and that they could sue on the lost note without giving a bond, threatening also that unless it was settled “they would make it warm for us.” Nothing was then said about the rebate nor any definite conclusion reached, but appellee proposed to meet them again that day at Decatur. Thompson and McDonald did meet him there at the office of Eldridge & Hostetler, his attorneys, where, after some further talk, he expressed his readiness to pay both the notes provided the rebate was allowed; and thereupon Mr. Hostetler produced a paper of which the following is a copy: “ Cerro Gordo, Illinois, July 2, 1884. I hereby agree to make E. W. Green a discount of (8166.60) on a Springfield, Ohio, vibrating separator, rebate to be made at time of settlement. A. Manacke.” This being the first information they had of -the existence of such a paper, they declined to allow the discount mentioned, and the negotiation was broken off. McDonald immediately reported the matter to Manacke by letter inclosing a copy, to which he promptly replied that the figure “1” had been put in since the paper was delivered, and without his knowledge or consent. Soon afterward he came to Decatur, went with Thomson and McDonald to see it, and upon inspection repeated the statement. McDonald testified that on leaving the office he asked “ what shall we do now,” and that Thomson answered “we will arrest him,” but Thomson contradicted him. However, they called on the State’s Attorney, to whom McDonald and Manacke respectively stated what they claimed to be the facts in relation to the loss of the note and the making of the rebate paper, and after some discussion he prepared a complaint against appellee for forgery, which was sworn to by Manacke before a Justice of the Peace, and a warrant issued thereon was delivered to McDonald, who delivered it to a Constable to execute. Thomson also was present and requested the officer to get a settlement of the company’s claim, if he could, by cash or security, promising him §10 in case he succeeded, though it was understood that he was to make the arrest in any event. The effort made by him to effect a settlement failed and appellee was brought in under arrest. On his application the examination was postponed for thirty days, McDonald making some suggestion in relation to bail, the amount of which was fixed at §800, and given at once. On the same day a suit was brought upon the note by McDonald as attorney for the company. Thomson made affidavit of the debt and all three signed the bond—Thomson for the company, which afterward ratified his act.

The examination on the criminal complaint occupied portions of two days. McDonald and Thomson were present and the State’s Attorney, from time to time, conferred with them. Cartmell also attended, having been sent by the secretary of the company as a witness upon request of Manacke. He also talked with them and the State’s Attorney, but was^not called to testify. On his direct examination Manacke reiterated his statement as to the alteration of the paper, but on cross-examination became uncertain, for reasons partially stated, and finally, in effect, withdrew the charge, whereupon the State’s Attorney formally dismissed the complaint and appellee was discharged. On the same day, after some negotiation, the civil suit was settled and dismissed, the rebate claim being allowed and the balance (BflO) paid to Cartmell, for the .company, in a check of appellee’s father, which he indorsed and collected. Afterward, and before this suit was brought, the grand jury was in regular session and did not find an indictment against appellee.

Such, in substance, is the case before us, and we are of opinion thereon that, as to appellant, the verdict was against the law and the evidence.

That a corporation can act only through natural persons or its agents; that it may be liable for a malicious prosecution; that it must answer, like natural persons, for whatever is done by its agent, bona fide, for it in the line of his duty and within the scope of his employment, even though it be wilful and malicious on his part and against its particular order; that the scope of his employment may be shown by circumstances as well as by proof of express authority; that it includes whatever is fairly implied by that which is expressly given; that malice in a prosecution may be inferred, if the j ury think the inference warranted from a want of probable cause; and that one may become liable for the wrongful act of another without his antecedent authority, express or implied, by its ratification, as where he adopts and continues it, or in some cases where he accepts the benefit of it or fails to disavow it when he has notice that it was done in his name or interest or under color of his authority, are propositions conceded by counsel and recognized by the court. But in all their light we are unable to discover from this record any cause of action whatever against this company.

If liable at all it must be because the prosecution complained of was instituted or carried on by its agents—persons having its authority, express or implied, so to do—or was ratified by it.

The supposed agents were Manacke, McDonald, Thomson and Cartmell. All the express authority they had, respectively, is fully set forth in the foregoing statement. That of Manacke was “to attend to the collection” of the note sent him; of McDonald, that of an attorney at law to make such collection; of Thomson, to collect a class of notes that included the one in question; and of Cartmell, to settle with Manacke as one of the company’s agents. What they said or did, separately or together, apart from the company, could not extend it; yet much evidence of this sort was admitted over objection. Each of them was asked if he had ever received fromthe'company or either of its officers, any and what authority, direction, advice or suggestion in reference to this or any other criminal prosecution, but on appellee’s objection was refused permission to answer. That the authority so given to either expressly included that of prosecuting anybody for a criminal offense in any case, of course, is not claimed.

And as to wlxat is implied, no question can be made upon the case of McDonald. His retainer to a particular note certainly did not imply authority to prosecute the maker for the forgery of another paper. The court below properly so instructed the jury; and since there is no proof that heliad any otherwise, what he did about it is immaterial as respects the company.

That of Cartmell may be omitted also, for the reason that he is not shown to have taken any part in it, except to attend as a witness on the examination, and that not of his own motion. He so swears and nobody contradicts him. Manacke had sold a machine for which he had made no return of money or note, and the term of his agency to sell and settle had expired. Cartmell then came, strictly in the line of his duty, to settle the company’s account with him. His taking the notes was a settlement of that account with Manacke, and also with appellee. Having accomplished it, he left before he had heard of any rebate or there was any thought or pretense of occasion for the prosecution that followed. But he had knowledge of a fact which, after the prosecution was begun, was thought by Manacke or his counsel to be important; namely, that appellee had then settled ■ with the company without mention of his claim for a rebate of thirty per cent., which, according to the paper as it now appears, was to be “made at time of settlement.”

Doubtless .it was to prove this fact that his attendance was desired. True, the secretary sent him, but not on his own motion nor that of the company. Its sending him,and his going, upon request of the prosecutor, were duties on their respective parts, the performance of which signified nothing as to the voluntary relation of either to. the prosecution. When he came he talked with Manacke, McDonald and Thomson, and also with the State’s Attorney, before and during the examination. It would have been very strange if he had not, even though he had been opposed to the proceeding. What he said does not appear, but he swears he did not advise or encourage it, and the fact of his conversing with them under the circumstances is no evidence that he did. If he had done so, however, we should hardly need to argue that authority for it from the company was not implied in the power given him to make sales and settle accounts with agents.

Thomson also denies, and it is by no means clear, that he took any part in it,, His objects and efforts were to get the money or security on the past due notej'which was his specific business. To that end he naturally and properly sought the co-operation of Manacke and McDonald, and offered to compensate the Constable who held the warrant for his aid, if successful; but with the prosecution for forgery he declares he had nothing to do. The evidence to the contrary consists of the conditional threat to “ make it warm ” for appellee and his brother, the suggestion of the arrest, as stated by Manacke, and his being in company with him and McDonald when several steps were taken by them in the course of that proceeding. That the threat had no reference to the prosecution for forgery is clear from the fact that he was not then aware of the existence of the rebate paper, and that it did refer to a civil suit on the note is manifest from its immediate connection with the opinion he had expressed that they could sue on the lost note without giving a bond of indemnity. Manacke thought it was Thomson who said we will arrest him,” but he may have been at fault in his recollection of the person who said it; McDonald would have been as apt to suggest it Thomson positively denies that he did, and is corroborated by the State’s Attorney, who was a witness called by appellee, and testified that in the interview of these three with him, almost immediately after that suggestion is claimed to have been made, Thomson said he was not prosecuting. His being with them on the occasions referred to was entirely natural, and as entirely insignificant in its bearing upon the question of his complicity.

But whatever may be the truth upon this point, the authority expressly given him was precisely the same in its application to this case as that of Manacke. It covered more cases than 1ns, hut was the same as to each and to both of them in tliis: it was to collect or to attend to the collection of the note of appellee and his brother then due to the company. Their implied authority must, therefore, be the same also, and will be considered presently in connection with the conduct of Manacke.

There is one fact, however, in view of which the company could not be held liable for the prosecution here complained of, by reason of any action of Thomson in the premises, even though his authority to institute it had been express and clear, and that is, that as to him it was not without probable cause.

The positive statement of Manacke, who made the paper, that it had been altered without his knowledge or consent, strengthened by the fact that as presented by appellee, it imported a promise to allow him a rebate of §50 more than his own commission, was certainly probable cause. Angelo v. Faul, 85 Ill.106; Harpham v. Whitney, 77 Ill. 32; Anderson v. Friend, 71 Ill. 480, 485. And if so for the agent then also for the principal. Cartmell would be protected by the same fact. So that the right to recover against the company as principal must rest upon the acts and authority of Manacke alone, if indeed, even as to him, it might not successfully interpose the same bar. since there is no reason to believe that his accusation of appellee was wilfully false or absolutely without ground for suspicion at the time. See Harpham v. Whitney, 77 Ill. 32, 39, and cases there cited. Perhaps his explanation, if he had been allowed to make it fully, would have satisfied the jury that he was not actuated by malice.

Manacke, however, did institute and carry on the prosecution. He had no express authority from the company so to do. The full extent of that was to attend to the collection of its note against appellee and his brother. Unless it implied or embraced within its scope authority to prosecute appellee for forging the rebate promise, or the company ratified his proceeding, it is not liable in this action.

It may help us to clearer views of both these questions— implied authority and ratification—to consider for a moment what occasion it had or could have had to authorize or ratify it.

Counsel assume and repeatedly assert without attempting to show, that it alone was interested to suppress the rebate paper. But the proof is it was Manacke’s individual promise that was alleged to have been forged. It did not purport to bind anybody else. The company sent its machines to him, on his own order, at the retail price in Springfield, and held him to account and settle for them at that price in cash or notes guaranteed by him, less only his commission of twenty per cent. He had no authority to promise purchasers, on its account, any rebate or discount on that price, nor did he assume to exercise any such. He made the promise that was made in his own name, on his own individual responsibility, and not as agent. He alone was liable upon it. And appellee so understood the matter. He agreed with Manacke to keep the knowledge of it from the company. Three months after it was received he settled with the company, through another agent, in presence of Manacke, at the full retail price, and gave his negotiable notes for it. Thus these papers were not parts of the same transaction nor between the same parties. How then can it be pretended that the rebate promise could be set off against the notes, even in the hands of the company, or that it had or could have any interest whatever to defeat or reduce his claim upon that promise? It is said that the company allowed him the full amount of it on settlement, immediately after the criminal complaint was dismissed, and so recognized its interest in and liability for it. The inference to be drawn from all the facts attending that settlement is directly the contrary. One of the notes was not then due, and the other was lost. Yet appellee, his brother and his father proposed to pay both if the rebate was allowed. Cartmell, representing the company, did not undertake for it to make the allowance, but referred that question to Manacke and his counsel in the matter of the criminal prosecution, McDonald, thereby showing that he did not recognize the promise as that of the company. McDonald at first thought the allowance should not be made, evidently believing, notwithstanding the outcome of the charge of forgery, that his client never intended to give appellee all his commission and §50 in addition, as an inducement to purchase, but on further conference with him they consented, and therefore it was done. By a variety of proper questions it was sought to learn from Cartmell whether Manacke did not pay or secure to the company the amount so allowed over and above his commission, but counsel for appellee succeeded, by objection persistently made, in excluding the evidence so offered. It is with ill grace, therefore, that they now urge this allowance as evidence that the company or Cartmell recognized its liability on the promise of Manacke. Our conclusion on this point, then, is that it neither had in fact, nor supposed it had, any pecuniary or other special interest in the criminal prosecution.

From this it might be expected to appear, as it did, that neither of the persons supposed to have been personally engaged in it pretended to be acting therein in its name, or interest, or under color of its authority. Manacke well understood that his individual interest alone was affected by the supposed forgery. He made the complaint on his own responsibility and in his own name, and procured counsel for himself. McDonald swears he appeared not for appellant but for Manacke alone. If Thomson had anything to do with it, it was as a friend of Manacke and in the interest of public justice. Nor was anything to the contrary reported to the company. Thomson says he reported all that occurred as he understood it. From which it is strangely claimed, as matter of fact, that he reported the pregnant suggestion “we will arrest him,” as having been made by himself, although he further swears that he did not make it, and as matter of inference, that the company thereby understood its authority was being asked for the proceeding. There is no evidence to that effect.

If, then, the company had no reason to suppose it was commenced or carried on in its interest or under claim of its authority, its failure to repudiate -it was no evidence of ratification. Any attempt on its part to repudiate it would have been sheer impertinence. Where one ought to have ratified the act of another, performed on his account, slight evidence may warrant a jury in finding that it was done. C. & St. L. R. R. Co. v. Mahoney, 82 Ill. 73; T., W. & W. R. R. Co. v. Prince, 50 Ill. 26. But here no obligation, moral or other. rested upon the company to assume the responsibility for Manacke’s acts, and no semblance of evidence that it did so is presented, except their failure to disavow them, together with the sending of Cartmell as a witness at his request and the allowance of the rebate claim, which have been already considered and, in our opinion, are of no weight whatever.

The view above taken of the relation, or rather of the want of relation, between the prosecution of appellee and the business of appellant intrusted to their agents, if sound, would seem to be conclusive upon the question of implied authority also.

We do not propose to notice particularly the many cases cited by counsel. In some, the act of the agent was clearly ratified, as in Fentor v. Wilson Machine Co., 9 Philada. 189; in others it was of the precise description expressly authorized to be performed in a proper case and manner, as in Pennsylvania Co. v. Weddell, 100 Ind. 138, and Chicago City Ry. Co. v. McMahon, 103 Ill. 485. But we find none maintaining the liability upon the clear ground of implied authority that may not be distinguished, on principle, from the one at bar. They show that to be implied, as within the scope "of the authority expressly given, the act or proceeding must be of itself necessary, usual or appropriate to the performance of a duty or the accomplishment of an end of the kind expressly contemplated by the contract of agency, or usually performed or accomplished by agents of a like or corresponding character, or to meet some exigency naturally arising in the ordinary course of the business intrusted to him, for the protection, preservation or recovery of some property or right in his charge as agent.

Such an act will be wrongful only when misapplied or otherwise improperly performed, and when it is, whether through wilfulness or malice or only carelessness or unskilfulness of the agent, it is none the less within the scope of his authority, and the principal should answer for it.

The ground of his liability is that in contemplation of law the act is his, though performed by another. In the words of our Supreme Court, “he must be considered to be constructively present and commanding the act.” St. L., C. & A. R. R. Co. v. Dalby, 19 Ill. 352, 370. For a fuller statement of the principle, with the reason and authorities supporting it, see Arasmith v. Temple, 11 Ill. App. 39, íé. In regard to acts that would be authorized by implication only, because within the scope of the employment, the principal may control the agent as to the object, time, means and manner of performance, or forbid it altogether. He has this right because the act is done or proposed to be done in his business; and because the act, as performed, is in law his own. He ought so to use it, as he may, by selecting a proper agent, giving proper direction and exercising a proper control, that others be not injured, and failing, is justly liable for the consequences.

This principle of liability furnishes a test by which to determine whether a given wrongful act of the agent is or is not within the scope of his employment. It may often be difficult to decide correctly whether the employer had the legal right, simply by virtue of his relation as principal, to forbid its performance absolutely or in the particular case in question, or to require its performance in a different and proper manner; but if it be clear that he had, the act must have been within the scope of the employment, and if otherwise, it could not have been so.

We believe this test would fairly try every one of the cases cited, and see no reason why it should not be always reliable.

How it is certain that if it had been actually present it would have had no power to avert the injury here complained of, no right, as principal or otherwise, to forbid the prosecution or any act done therein by Manacke, Thomson, or any other person named in this connection, nor to require of them or either of them the performance of any such act in any manner or in any case whatever. The plain reason is that they were employed by appellant only to attend to its business, and this was none of its business. Otherwise it would have had the right to forbid it or to direct and control the manner of its performance.

Counsel finally contend that even if the prosecution was of itself outside the scope of their employment, yet their intentional use of it as only a means of collecting appellant’s note would make it liable therefor. If their intention had been in fact limited, as here assumed, the legal effect stated would not have followed. The law does not thus expose persons who do business through agents. In support of the proposition contended for, the following passage is cited from a recent Indiana case reported in 1 N. E. Rep. 819 : “Where the servant is engaged in accomplishing an end which is within the scope of his employment and while so engaged adopts means reasonably intended and directed to the end, which result in injury to another, the master is anwerablefor the consequences, regardless of the motives which induced the adoption of the means, and this, too, even though the means employed were outside of his authority and against the express order of the master.” With great respect for the learned court, we apprehend that the words “ outside of his authority ” should have been omitted, or the word “ express ” inserted before “ authority.” In the case supposed the means employed would not be “outside of his authority,” though outside of that which was expressed. General authority to accomplish a given end includes the use of all means “ reasonably intended and directed to that end,” and as to other parties affected thereby, the principal can not limit them by express orders to the agent. But the criminal prosecution of appellee for forging a promise by Manacke to him was not a reasonable means to collect money due on a promise by him to appellant, and therefore could not be “reasonably ” so intended and directed. As to such as are absolutely outside of the authority of the servant, express or implied, there is no relation between them, and the responsibility of a master can not attach.

The plaintiff having entirely failed to show that the wrongful acts complained of, if they were wrongful, were committed under the authority of the thresher company, express or implied, or ratified by it, the motion to set aside the verdict against it should have been sustained.

We think the court erred also in admitting and excluding evidence, as above incidentally stated, and in several instructions given for the plaintiff. They tell the jury that from the facts therein respectively stated, the law implies malice, or antecedent authority, or ratification, instead of informing some in terms and others in effect, as that the jury should so find them that they are proper to be considered by the jury in determining whether or not there was malice, etc. This fault vitiates the 2d, 3d, 4th, 5th, 6th, 10th and 12th. The 14th and 15tli further include the hypothesis that a full report of the facts, as they really were, was made to the company, which we think was not warranted by the evidence. The 9th, as an abstract proposition, should have excluded the notion of public justice, and added the qualification, without probable cause.”

For these errors the judgment, as against both the defendants, will be reversed and the cause remanded.

Reversed cmd remanded.


author: Conger, P. J.

text:
    Wiley Lipe v. William L. Blackwelder.

      Dogs—Trespass—Action for Damages for Shooting Trespassing Dog— Instructions.
    1. Every person has a right, to defend and protect his property of every kind and character from injury or destruction, provided he u-es only such means as are reasonably necessary under the circumstances.
    2. In the case presented, it is held: That the defendant had a right to protect his wheat field from trespassing dogs; that it was for the jury to determine whether, under the circumstances, it was proper for him to shoot the plaintiff’s dog, or whether his property might have been protected by less extreme measures; and that the instructions fairly submitted the case to the jury.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Montgomery County; the Hon. James A. Creighton, Judge, presiding.
    Mr. J. M. Truitt, for appellant.

      Messrs. Lane & Cooper, for appellee.
   Conger, P. J.

This was an action originally brought by appellant against appellee before a Justice of the Peace, for injuries inflicted by appellee upon appellant’s dog. A trial was had before a jury, resulting in a verdict and judgment for appellee. Upon appeal to the Circuit Court and trial before a jury, the result was the same.

The parties to the suit are farmers, residing about one mile apart. Appellant is the owner of seven or eight hounds which he keeps for hunting purposes. At the time of the alleged injury about twenty acres of appellee’s land was in growing wheat, the land having been rented by appellee to one Eussman. It was claimed by appellee, and some evidence was offered tending to support such claim, that in the early spring and during the time the wheat was maturing, the dogs of appellant were in the habit of running through this wheat, chasing rabbits and. other game, until they had trampled down and destroyed eighteen or twenty bushels of the growing wheat, and had several times prior to the shooting been driven out with clubs.

The circumstances of the shooting are thus detailed by the appellee in his testimony:

“Last June I shot one of plaintiff’s hounds while he was running through my wheat; plaintiff’s hounds had been accustomed to run in said wheat field alt season, and were damaging it by knocking it down. Mr. Ensarnan, my tenant, told me I must keep the dogs out of the wheat [to which last statement defendant objected and excepted]. I saw them in there several times, and heard them at other times; I never saw more than three or four hounds in there at any one time, and generally only saw two. There was eighteen or twenty acres of wheat in the piece. I heard a couple of hounds in the wheat and took my gun, loaded with Eo. 6 shot, and went into the wheat, and when the dogs came within about forty yards of me I shot one of them, a black and white fellow. I shot the dog when he was coming straight toward me, because he was in the wheat field and I could not keep them out any other way. The dogs had knocked down enough wheat to make twenty bushels of wheat; they were running rabbits in the wheat, and made roads in it.”

The dog was not killed, but the effect of the shot upon him is described as follows by appellant: “Before he was shot he was worth at least §10; after being shot he was crippled and sore for a long time, and is still stiff from the effects of the shooting, so that he is physically damaged—but the most serious damage comes from his being made ‘gun-shy,5 that is, afraid of a gun. A gun-shy dog will quit chasing whenever he hears a gun discharged; it matters not who discharges the gun, it is all the same; he will quit the chase and sneak away when he hears a gun discharged. I have had a great deal of experience all my life with hounds, and have owned a great many of them during the last thirty or forty years, and have had large experience with and hunted with -hounds belonging to others, and know that it ruins a hound for hunting purposes to shoot him. After a hound becomes gun-shy he is worthless. Since my dog was shot by defendant I have taken him out to chase wolves and foxes several times, and iind that he is gun-shy and quits running the trail whenever he hears the sound of a gun. For the purposes of hunting he is now worthless and has been ever since defendant shot him, and always will be, the result of being shot by defendant.”

The court, at the instance of appellee, gave the jury the following instructions:

(2.) “ The court instructs the jury that if they believe from the evidence, that the relative value of the plaintiff’s dog and the portion of defendant’s growing wheat which was being destroyed by said dogs, if the evidence shows that any wheat was being destroyed, were not disproportionate, and that the defendant, to protect his property from such destruction, necessarily exercised the right to defend his property in a reasonable manner, all the circumstances surrounding the transaction being considered, then the jury will find for the defendant.55 (3.) “ The court instructs the jury that the defendant had the right to use such means as were necessary for the purpose of putting the dogs out of his field, and if in so doing it resulted in the mutilation of the animal in question it would not he a violation of law, and if the jury believe, from the evidence, that the defendant used such means as a reasonable man would use, all the circumstances considered, to exclude the dogs from his field and from his wheat, and did no more harm to the dog than was necessary, under 'all the circumstances .proved in the case, then the jury will find for the defendant.” It is insisted that these instructions are erroneous; that however appropriate they might be, where one was defending his animate property from destruction, they are not the law as applied to the protection of inanimate property.

Counsel state the proposition in the following words: “Appellee had not the right to exercise the same force to protect his wheat field, inanimate property, which he might have been justified in using had appellant’s dog been found worrying and seemingly about to destroy a valuable domestic animal, animate property, belonging to him.”

We fail to see the propriety of the distinction made by counsel.

Every man has a right to defend and protect his property of every kind and character from injury or destruction, provided he uses only such means as are reasonably necessary under the circumstances. And the reasonableness or unreasonableness of the means used is always a question of fact for the jury.

Thus, in King v. Kline, 6 Pa. St. 318, when a dog was killed while in the act of getting fish down from the wall where they had been hung to dry, the court say: “And In's property, whether meat or fish, in his cellar, in his.kitchen or in his yard, it was lawful for him to preserve against any man’s dog; and if he could not otherwise protect it, he might kill the dog when caught on his premises in the act of destruction. Whether he could not preserve his property and the customary use of it without destroying the animal committing depredations, when found in the act, ought to have been submitted to the jury by the court, as a question within their province to decide.”

In the case at bar appellee had a right to protect his wliea^ from trespassing dogs, and if, in the opinion of the jury, it could not be done by any reasonable means except those used by appellee, and that such means were, under the circumstances, reasonable and proper, he would not be liable to appellant for the injury resulting therefrom.

In determining the question of the reasonableness of resorting to such extreme measure to protect property, the value of the animal doing the mischief, the disturbance and mischief likely to be wrought, the probability of less severe measures being successful and the necessity for immediate action, are all elements to be considered in reaching a conclusion.

As was said in Anderson v. Smith, 7 Ill. App. 359, “There must be an apparent necessity for the defense, honestly believed to be real, and then the acts of defense must in themselves be reasonable. Acts beyond reason are excessive. The consequences of the proposed act to the aggressor should be considered in connection with the consequences of non-action to the party defending, whether the defense be made in favor of person or property.”

We think the instructions fairly submitted the law to the jury. Appellant’s third instruction, which told the jury that if appellee shot the dog for.no other reason than that the dog had been accustomed to run through his wheat, they should find for appellant, announced a correct principle of law, and had the evidence justified it, should have been given.

But the evidence was undisputed that the dog was at the* time of being shot trespassing upon the wheat, and appellee’s uncontradicted statement being that he shot, “because-he was in the wlieatfield and he could not keep him out any other way,” it can hardly be presumed that the jury would indulge the presumption that appellee shot the dog, for the reason given in the instruction.

If the refusing of the instruction was error, we do not think it worked any injury to appellant. Neither do we think the remarks of the court in passing upon the evidence prejudiced the appellant.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.