text:
    Nelson Perin v. Augustus A. Parker.

      Board of Trade—Employment of Commission Merchant—Agency— Demands for Margins— Waiver—Notice—Common Counts—Instructions— Practice—Omission in Verdict.
    1. A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it.
    2. The employment of a commission merchant to buy or sell grain upon the Chicago Board of Trade, operates as a request to make all payments required by the rules of the board in the course of the execution of the employment, with a promise of repayment.
    3. Money so paid by a commission merchant becomes a debt recoverable with interest under the common money counts.
    4. In the case presented, it is held: That the successive demands made by the plaintiff were not so inconsistent as to require the jury to find, or this court to adjudge, that the last was a waiver of all the previous demands; that, having declined to furnish margins until differences were settled or determined, the defendant can not object that the notices were not sufficiently definite; that the plaintiff is not guilty of a failure to use due diligence to prevent an increase of the loss, the notice of refusal to p ly margins by the defendant not being absolute and unconditional; and that there was no material error in the instructions nor in the action of the court in sending the jury back to supply an omission in the verdict.
    [Opinion filed March 28, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

      Messrs. Dexter, Herrick & Allen and Horace H. Martín, for plaintiff in error.
    Mr, H. S. Monroe, for defendant in error,
   McAllister, J.

This was an action upon the common counts in assumpsit, brought by Parker, a commission merchant of Chicago, doing business on the board of trade, against Perin, a resident of Cincinnati, Ohio, to recover for money advanced by the former to the latter and commissions earned in the course of execution by Parker, of the employment by him as such merchant by Perin, December 30, 1882, to sell for the latter upon the Chicago Bear'd of Trade, 50,000 bushels of corn, of which 25,000 bushels were to be delivered in January, and the same quantity in May, then next. Upon trial by jury the plaintiff below had a verdict and judgment for §6,114.28, and the defendant brings error to this court, assigning various errors, under which the most vital questions arise upon the points made by counsel for plaintiff in error: (1) That as respects the alleged advances of money, the plaintiff below failed to make out a cause of action by his evidence. (2) That what plaintiff below claimed as advances of money for the defendant at his implied request were not such in legal contemplation, and if any recovery could be had for what plaintiff below was compelled to pay out in taking care of said contracts of sale for defendant, such recovery could be only upon a special, and not upon the common counts. (3) That interest on the money so jraid was not allowable. Other points for reversal were made which will he noticed as we proceed.

The first question then, is as to whether the plaintiff below established by his evidence a cause of action as respects the money so expended. It clearly appears from the evidence that at the time Perin employed Parker to sell for him on the Chicago Board of Trade the corn in question, the former was well acquainted with the usages, customs and methods of doing business on that hoard; that no margins were asked for by Parker or furnished by Perin. And it is not pretended that anything was said or done which could be construed into a waiver of Parker’s right to have Perin furnish margins, if the exigencies of the business made it expedient to do so. It appears tliat Parker made sale of the corn for future delivery immediately upon receiving the order of Perin, and in strict compliance therewith, and informed the latter that he had done so; that Parker did not have any of the corn at the time, and that from the usages of the business, with which Perin was familiar, it was to be presumed to have been within the contemplation of the parties that Parker should go upon the board of trade and buy on Perm’s account the corn requisite to a delivery when the contracts of sale were closed up. It appears that from the time such sales were made the price of corn continually advanced in the market, so that by January 13, 1883, the deal was against Perin in the sum of §3,000 and upward. Parker then demanded of Perin that he supply margins in the sum of §3,500. The latter refused, saying that he would pay losses when differences were settled or determined, and not before. He put such refusal solely upon the ground that Parker had been ordered, January 4, 1883, to buy in the corn for January delivery and had violated his duty in that respect. That claim was shown to have been entirely without foundation. January 15th, Parker made another demand on Perm for §4,000 margins, by draft, whicli the latter refused to accept. Then Parker went to Cincinnati, and January 16th, had two personal interviews with him, and there asked him again for margins, and Perin peremptorily ref used, assigning for the reason the said baseless claim that Parker had violated his duty in failing to buy in the corn for January delivery. Then, January 18th, Parker, by telegram from Chicago, demanded §6,000 to be sent by telegram by 12:30 o’clock of that day, and gave him notice that if this demand was not complied with he should buy in the corn for Perm’s account. That telegram was not received by Perin until 12:15, and then it was impracticable for him to comply. He did not, and he does not pretend that he would if it had been received in time. On the contrary, the evidence tends to show that he, at no time afterward, intended to retract the notice he gave Parker January 13th, that he should pay no losses until differenees were settled or determined. When this case was before us, upon a former writ of error, Perin v. Parker, 17 Ill. App. 169, we held that upon the undisputed facts the notice and demand of January 18th were not reasonable; that such being the case, it should have been submitted to a jury to determine whether or not Parker, by his acts and words, had waived his rights upon his previous demands for margins, and whether or not Perin had before said last demand retracted his notice to Parker that he would not supply any. The judgment in Parker’s favor was reversed and the cause went back for a second trial. Upon this last trial those last questions were specifically submitted to the jury: as to the waiver, by requests to find specially; as to the retraction, by instruction asked on behalf of defendant. The jury found by their special verdict that there was no waiver and by their general verdict that there was no retraction of said notice of refusal to put up margins.

It is contended by counsel for Perin, that the special finding of the jury, that there was no waiver by Parker of any of the demands for margins made by him prior to that of January 18th, is unsupported by the evidence; that they were respectively insufficient if not waived. A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. Hoxie v. Ins. Co., 32 Conn. 40; Lewis v. Ins. Co., 44 Conn. 72; West v. Platt, 127 Mass. 372.

A subsequent demand is not necessarily a waiver of a prior one. Hill v. Hobart, 16 Maine, 164. The fact that each successive demand made by Parker was for an amount larger than that of the next preceding one can not be considered as of controlling effect, because such increase of amount was properly due to the fact that the market price of corn was advancing from day to day. In view of that circumstance the successive demands were not so inconsistent as to require the jury to find, or this court to adjudge, that the last was the waiver of all the previous demands.

But counsel for Perin now insists that the several notices or demands were not sufficiently definite, and that some of them were for a larger amount than he was entitled to ask for. Even if that were so, having decided that he would furnish no margins until differences wore settled or determined, and so notified Parker, he was precluded from taking advantage of such objections at the trial. It is also urged by counsel that it was the duty of Parker to have bought in the corn within a reasonable time after receiving the notice of refusal by Perin, January 13th, and thus prevented the subsequent increase of loss. We are inclined to the opinion that, if the notice had been absolute and unconditional, it would, upon settled principles of the law of principal and agent, have been the duty of Parker to use due diligence to prevent such increase of loss to himself and to his principal. But the notice, as given, can not be so regarded.

The next question is, whether the money paid by Parker in buying in the corn in question can be regarded as money advanced upon the implied request of Perin, and so become a debt recoverable under the common money counts-. The rule applicable to such a case as this, is the rule which pervades the whole law of principal and agent, viz., that the principal is bound to indemnify the agent against the consequences of all acts done by him in pursuance of the authority conferred upon him. Taylor v. Stray, 2 C. B. N. S. 195; Leake on Contracts, 55. It is said by that excellent author on the same page: 61 Where a person has paid money under an indemnity from another person, it is, in general, equivalent to a payment made at his request; the indemnity operating as a request.” Brittain v. Lloyd, 14 Mees. & W. 762; Lewis v. Campbell, 8 C. B. 541; Monle v. Garrett, L. R., 5 Ex. 132; L. B., 7 Ex. 101; 39 L. J. Ex. 69.

Leake, p. 56, further says: “ The employment of a broker to buy or sell shares operates as a request to make all payments required by the rules of the Stock Exchange or other share market in the course of the execution of the employment with a promise of repayment.” In that statement, the author is supported by the following cases: Bayley v. Wilkins, 7 C. B. 886; Westropp v. Solomon, 8 C. B. 315; Taylor v. Stray, supra; Smith v. Linde, 5 C. B, 587.

It surely needs no argument to prove that the same rules above adverted to are applicable to a case where a person employs a commission merchant to deal for him, either in buying or selling grain or other products, upon the Chicago Board of Trade..

The case shows that the plaintiff below acted, in buying in the corn under the circumstances shown, entirely in conformity with the rules and usages of said board of trade, with which the defendant was familiar when he employed him-What the plaintiff was compelled to pay out in doing so was, therefore, in consequence of the employment, in contemplation of the parties, and must be considered as in pursuance of the authority conferred by such employment, for which payment the defendant had impliedly promised to indemnify the plaintiff. The sums so paid out by the plaintiff, therefore, became a debt, recoverable against the defendant upon the common money counts, as money advanced by the plaintiff to the use of the defendant at his request. And that being so,. the plaintiff was entitled to interest upon it, under Sec. 2 of the statute concerning interest.

Counsel for defendant below complain of error in the instructions to the jury. We do not deem it our duty to enter upon a discussion of the points specified by counsel, for in this case the plaintiff clearly established his right to recover the full amount which he did recover, not only by competent evidence, but evidence which was wholly uncontradictedThe defendant made no pretense of any defense but that of standing upon the general issue and requiring the plaintiff to prove his case. That was done by undisputed testimony, showing a right of recovery under settled rules of law. In such a case we think error in the instructions becomes entirely immaterial. We have considered the exception taken to the action of the court in sending the jury back to supplement what they had omitted in the verdict as first returned. Under the circumstances, as shown by the bill of exceptions, we think there was no error in such action of the court. The judgment should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Equitable Life Assurance Society of the United States v. W. Treese Smith.

      Parties—Agency—Contract under Seal—Modification of—Consideration.

    1. The rule that a principal may sue on contracts made by his agent in his own name, doss not apply where the contract is under seal.
    2. An executory contract under seal can not be modified by a parol agreement so as .to authorize either party to sue upon it as thus modified.
    3. A new and additional agreement, whether it be a substitute for the old, or in addition to or beyond it, must be upon a new consideration.
    [Opinion filed March 28, 1888.]
    Appeal from the County Court of Cook County; the Hon. E. H. Gary, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant.
    Where a party attaches any description to his name in the execution of a promissory note, tending to show on whose behalf it was made, it is competent to show by evidence aliunde that he was acting for another. Scanlan v. Keith, 102 Ill. 634; Hypes v. Griffin, 89 Ill. 134; Mechanics Bank of Alexandria v. Bank, 5 Wheat. 327.
    .An undisclosed principal may show that the apparent party was his agent, and may put himself in the place of his agent. 1 Parsons on Con. 62; Bishop on Con., Secs. 1075, 1089; Barker v. Garvey, 83 Ill. 184; Saladin v. Mitchell, 45 Ill. 79; Ford v. Williams, 21 How. 287; Lamson & Goodnow Manufacturing Co. v. Bussell, 112 Mass. 387.
    Whether Smith was informed of the agency makes no difference. There is no dispute that Curran was the appellant’s agent, and now that the appellant avows its interest and assumes the contract, Smith is concluded.

      Messrs. Hamline & Scott, for appellee.
    The appellant was not a party to the contract upon which the suit was brought, nor interested in those provisions of it which are the subject-matter of this suit. The question is not whether an undisclosed principal may take the place of his agent, but whether the terms of a written contract under seal may be varied to show that one who is expressly declared by it not to be the principal, was in fact the principal.
   Bailey, J.

This was an action of assumpsit, brought by the Equitable Life Assurance Society of the United States against W. Treese Smith, to recover certain moneys in the hands of the defendant, which, as is claimed, belonged to the plaintiff. The declaration consisted merely of the common counts, to which the defendant pleaded non assumpsit, and the trial before the court and jury resulted in a verdict and judgment for the defendant.

The evidence shows that on and prior to April 27,1886, one O. P. Curran was the general manager, in the City of Chicago, of said Equitable Life Assurance Society, a corporation of the State of Hew York, and that on that day said Curran employed and appointed the defendant as an agent “ to procure applications for assurance on the lives of individuals and forward the same to said Curran or to said society for their action, and for the purpose of collecting and forthwith paying over such premiums on assurance as shall be directed by said Curran or said society, and for no other purpose whatever,” it being provided that the defendant should receive, as compensation for his services, a certain per cent, of the first yeaPs premium on policies issued through his instrumentality, and a certain other small per cent, of the subsequent premiums thereon for a term of years. The terms of said agency were evidenced by a contract in writing between said Curran and the defendant, executed by them under their respective hands and seals. Said contract, so far as it described the parties thereto, was in the following words: “This agreement, made the 27th day of April, 1886, between O. P. Curran, of Chicago, County of Cook, State of Illinois, party of the first part, manager of the Equitable Life Assurance Society of the United States, a corporation of New York, and W. Treese Smith, of Chicago, County of Cook, State of Illinois, party of the second part,” and the concluding clause was as follows: In witness whereof the said parties have hereunto set their hands and seals on the day and year first above written,” Cur-ran’s signature being as follows: 15O. P. Curran, Manager,” followed by his seal. Said contract, after providing for the manner in which the defendant should perform the duties of his agency, the measure of his compensation and the mode in which he should receive it, and also providing for a termination of the agreement by either party on thirty days’ notice, contained, among other things, the following stipulations:

“ Said party of the second part shall have no claims against said society for commissions, or any other claims whatsoever, under this contract;” and
“ It is further agreed that the said party of the second part shall have the right to an advance (in lieu of any other compensation named in this contract) of §200 per month, during the first eight months of the continuance of this contract, to he repaid if not earned.”
At the foot of said contract was the following memorandum: “Approved as to commissions. New York, May 4, 1886. E. W. Scott, 3d V. P.” On the 17th day of May, 1886, said Curran wrote to the defendant the following letter:
Chicago, Illinois, May 17, 1886.
“f, Tbeese Smith, Esq.,
Dear Sir:—You can have the right to draw two hundred and fifty dollars per month, from this date, for eight months, in place of two hundred dollars per month, as provided in your agreement dated April 27, 1886; it being understood that you do not violate the terms of said agreement and act exclusively under the same for that period of time; hut should you avail yourself of the privilege of termination, that you will repay any portion of said advance that has not been earned in accordance with the terms of said agreement,
“Yours truly,
“O. P. Cubran, Manager.”

The evidence tends to show that under the foregoing agreement, the defendant entered upon the duties of his agency, and received an advance of $250 per month for five months, making in all $1,250. Some time after the expiration of said five months he was discharged and his agency canceled. Said advances, with one exception, were made to the defendant by the plaintiff on vouchers furnished by Curran. The evidence also tends to show that the entire amount earned by the defendant during the period of his agency was only $296.72, leaving $953.28 of the moneys advanced to him unearned.

As we view the case, the question is not so much whether the defendant should respond for said sum of $953.28, as whether it can be recovered in the name of the present plaintiff. The contract under which the defendant received said money and by which he agreed to repay so much of it as should not be earned, was under seal, and was between him' and Curran. Curran is the party of the first part named in the instrument, and whatever covenants there may be in it run to him." The rule that a principal may sue on contracts made by his agent in his own name, does not apply to cases where the contract is executed under seal. There the rule is that the suit must be brought in the name of the party who is named as covenantee. Says Mr. Ohitty: “It is an inflexible rule that’if a deed be inter partes, that is, on the face of it expressly describe and denote who'are the parties to it (as, "between A of the first part and B of the second part), C, if not expressly named as a party, can not sue thereon, although the contract purport to have been made for his sole advantage and contain an express covenant with him to perform an act for his benefit.” 1 Chitty’s Plead., 3. To. same effect see Sanders v. Filley, 12 Pick. 554; Johnson v. Foster, 12 Met. 167; Millard v. Baldwin, 3 Gray, 484; Inhabitants of Northampton v. Elwell, 4 Gray, 81; Hinldey v. Fowler, 15 Me. 285; Flynn v. North American Life Ins. Co., 115 Mass. 449.

Perhaps a different rule might apply if we could regard the letter of May 17, 1886, as being in legal effect a modification of the contract under seal. The rule seems to be that when the contract under seal is subsequently altered by the parties b}r writing not under seal, or by a parol agreement, the whole becomes a simple written or verbal contract, and the rights, liabilities and remedies of the parties are thenceforward to be determined by the same rules as are applicable to simple contracts. Briggs v. Vermont Cent. R. R. Co., 31 Vt. 211; Dana v. Hancock, 30 Vt. 616; Vicary v. Moore, 2 Watts, 451; Lawall v. Rader, 2 Grant’s Cas. 426.

But said letter can not be treated as a modification of the sealed contract for two reasons: 1. The rule in this State is

well settled that an executory contract under seal can not be modified by a parol agreement so as to authorize either party to sue upon it as thus modified. Barnett v. Barnes, 73 Ill. 216; Hume Brothers v. Taylor, 63 Ill. 43; Chapman v. McGrew, 20 Ill. 101; Bishop v. Busse, 69 Ill. 403; Loach v. Farnum, 90 Ill. 368; White v. Walker, 31 Ill. 422. 2. A new and additional agreement, whether it be a substitute for the old, or in addition to or beyond it, must be upon a new consideration. 1 Greenl. on Ev„, Sec. 313. The letter, so far as appears, was a mere voluntary act of Curran’s and had no consideration whatever to support it. It was a nudum pactum, and so had no effect one way or the other upon the legal rights of the parties.

The right to recover back from the defendant the moneys advanced to him, after deducting the sum earned as commissions, arises solely from the covenants of the instrument under seal, and the plaintiff being no party to that instrument can not recover. Ho other result was legally possible than a verdict and judgment for the defendant, and that result having been reached, it must be sustained. The judgment will be affirmed.

Judgment affirmed.


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    Chicago Electric Light Renting Company v. William S. Hutchinson.

      Negotiable Instruments—Authority of Agent to Malee Notes—Plea of General Issue—Affidavit—Evidence—Common Counts—Joint Liability— Practice—Opening Judgment.

    1. A general agent has no authority as such to make promissory notes in the name of his principal. The authority will not be implied, but express authority must be shown.
    2. A plea of the general issue verified by affidavit, in an action of assumpsit on a promissory note, requires the plaintiff to prove the execution of the note. If it was executed in the name of the defendant by one claiming to act as his agent, the plaintiff must also show the agent’s authority to execute the note.
    3. A recovery can not be had against defendants jointly under the common counts upon an indebtedness for which but one is shown to be liable.
    4. Under a stipulation for opening a judgment entered by default, it is held: That it was incumbent upon the plaintiff to make out his case precisely as though no judgment had been entered; and that the judgment must fail for want of evidence, the note not having been offered or read in evidence.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant.
    Mr. John M. Gartside, for appellee.
    “A person occupying the poosition of agent or superintendent for a company notoriously and openly, will be presumed to have been duly appointed to do any act properly pertaining to such position and within the chartered powers of the corporation. ” Doan v. Duncan, 17 Ill. 272; St. L., A. & C. R. R. v. Dalby, 19 Ill. 353; Taylor v. Taylor, 20 Ill. 650; R., R. I. & St. L. R. R. Co. v. Wilcox, 66 Ill. 417.
    “ If the officers and agents of a corporation contract with other persons and in their negotiations so act as to induce such persons to believe that they are acting for the corporation, and credit is given upon that belief, the corporation will be liable though such officers and agents were not, in fact, acting for it in such negotiations.” Wilson Sewing Machine Co. v. Boyington, 73 Ill. 534.
    The points raised by the appellant, that the note in question was not placed in evidence, and that there was no evidence fixing .the value of the smoke consumer, can be of no avail; because the judgment, subject to which the stipulation allowing appellant to plead was made, presupposes the introduction of the note and the fixing of the price agreed to be paid for the smoke consumer. The legal effect of the stipulation was to permit the appellant corporation to show want of joint liability with defendant Hapgood to pay the judgment already rendered against it and Hapgood jointly. The judgment had already been obtained against appellant, and the burden was on it to show why the judgment should not be allowed to stand. It was, therefore, not necessary for the appellee to introduce the note except as a memorandum, which was done; nor was it necessary to establish the value or price agreed upon for the smoke consumer, as that was impliedly admitted by the stipulation.
    This stipulation, in effect, admitted the making of the note in question by Hapgood in the name of himself and the appellant corporation; admitted the amount due upon the note at the time the joint judgment was entered; admitted the entering of the joint judgment; and simply permitted the appellant to come into court and show cause why it should not be held jointly liable thereon with said Hapgood.
   Bailey, J.

This was a suit in assumpsit, brought by William S. Hutchinson against the Chicago Electric Light Benting Company and John H. Hapgood, to recover upon a promissory note, of which the following is a copy:

“ §125.00. Chicago, Sept. 8th, 1885.
“ Thirty days after date, we promise to pay to the order of W. S. Hutchinson one hundred and twenty-five dollars, at 57 Honoré Block. Value received.
i( Chicago Electric Light Behtihg Co.,
“ Johh H. Hapgood, Manager.”

Both of the defendants having been duly served with process, judgment was rendered against them by default for $126.20 and costs. A stipulation was afterward entered into by the attorneys of the respective parties, that the Chicago Electric Light ¡Renting Company might plead, without prejudice to the rights of the plaintiff as against defendant Ilapgood, and that the judgment should stand of record against both defendants until the decision of the court “ as to the rights and liabilities of said company in the premises.” Said company thereupon pleaded non assumpsit and a plea denying joint liability with the other defendant, said pleas being duly verified by affidavit, and the cause being afterward tried by the court, a j ury being waived, the issues were found for the plaintiff, and an order was entered that the judgment theretofore rendered stand in full force and effect as to the time of its rendition, and that the plaintiff recover his costs.

So far as appears from the bill of exceptions, the plaintiff failed to offer or read his note in evidence, and we therefore think that his judgment must fail for want of evidence. By the stipulation and pleas the entire controversy between the parties was opened. It was not the effect of the stipulation, as we understand it, to retain the judgment as prima facie evidence of the plaintiff’s rights, and to merely allow said company by its pleas to interpose affirmative defenses, but the “ rights and liabilities” of said parties were subjected to re-litigation, and it was therefore incumbent upon the plaintiff to make out his case precisely as though no judgment had been entered.

But, if we could treat the note as having been properly offered, we are still of the opinion that the judgment is unsupported by the evidence. Where, in assumpsit on a promissory note, the defendant pleads the general issue and verifies his plea by his affidavit, the burden is thrown on the plaintiff to prove the execution of the note; and if the instrument is executed in the name of the defendant by some other person claiming to act as his agent, he must also show that such ■agent had competent authority to execute it for the defendant. •

The note in question was given for a smoke consumer purliased of the plaintiff by Hapgood, for the use of said company, Hapgood being at the time the manager of the company and having general charge of its business. The note was executed by Hapgood, he signing to it both the company’s name and his own. There is no competent evidence of Hapgood’s authority to execute promissory notes on behalf of his company, beyond the mere fact that he was its manager. The word “manager” may probably be deemed to import a general agency, but the rule is that a general agent, without being specially empowered so to do, has no authority to make promissory notes in the name of his principal. The authority will not be implied, but express authority must be shown. This rule is fully sustained by the following authorities: McCullough v. Moss, 5 Den. 567; Benedict v. Lansing, 5 Den. 283; N. Y. Iron Mine v. Hegaune Bank, 39 Mich. 644.

bTor is the case one where the plaintiff could recover under the common counts for the indebtedness for which the note was given. The smoke consumer was purchased by Hapgood for the company, and the indebtedness thereby created was against the company alone, and not against the company and Hapgood jointly. Joint liability was put in issue by the company’s plea, but, even if no such plea had been interposed, a recovery could not be had against the defendants jointly upon an indebtedness clearly shown by the evidence to be an indebtedness for which only ohe of them was liable.

As the judgment is unsupported by the evidence, it will be reversed and the cause remanded.

Judgment reversed..


text:
    Charles Leyenberger v. James R. Paul.

      Malicious Prosecution — Evidence, of Character — Admissibility of— Instructions—Accuracy—When Required—Motion for Reto Trial.

    1. An instruction -which has no basis in the evidence, but calls the attention o£ the jury to evidence which has been offered and persistently paraded before them, and has been excluded, is erroneous.
    2. Where the evidence is sharply conflicting and the question presented is a doubtful one, the instructions must be accurate and free from any tendency to mislead the jury.
    3. The action of a trial court in giving an improper instruction, if properly excepted to at the time, may be assigned for error in an appellate court, although the objection was not raised in the motion for a new trial.

      4. In an action for a malicious prosecution, the principal question involved being that of probable cause, it is held: That evidence of the plaintiff’s reputation for honesty and integrity, persistently offered but excluded, will not sustain an instruction touching that subject; that, the question involved being a very doubtful one and the evidence conflicting, it was incumbent on the court to instruct the jury with great accuracy, and to avoid giving any instruction which would have a tendency to mislead; and that the error in giving such instruction may be considered by this court, although it was noc specified in the motion for a new trial.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Robert Hervey, for appellant.
    Mr. E. A. Sherburne, for appellee.
   Bailey, J.

This case has twice been before this court, and

is reported as Leyenberger v. Paul, 12 Ill. App. 635, and Paul v. Leyenberger, 17 Ill. App. 167. The action is for malicious prosecution, and is brought by Paul against Leyenberger to recover damages against him for causing the plaintiff’s arrest and imprisonment, maliciously and without probable cause, upon a charge of embezzlement. At the last trial the jury found the defendant guilty and assessed the plaintiff’s damages at §3,500, and for that sum and costs the plaintiff had judgment.

The question principally litigated at the trial was whether there was probable cause for the arrest, and on that question the evidence was to a considerable degree conflicting: At the commencement of the trial the plaintiff’s counsel called seven witnesses who had known the plaintiff for various periods of time from ten to thirty years, and after having said witnesses severally sworn, offered to prove by each of them that he knew the plaintiff’s reputation for honesty and integrity in the community where he lived, and that such reputation was good and unimpeachable. On objection by the defendant this evidence was all excluded, and no other evidence as to the plaintiff’s reputation for honesty and integrity was offered by either party. At the close of the evidence the plaintiff’s counsel asked and the court gave to the jury the following instruction:

61 The jury are instructed that, in determining whether or not the defendant had probable cause to believe and did believe in good faith that the plaintiff was guilty of the crime alleged against him, they may, in connection with all the other evidence in the case, take into consideration the evidence, if any, relating to the character and reputation for honesty and integrity of the plaintiff, so far as the defendant at the time of the arrest had knowledge of the same, if the evidence shows that at said time the defendant had any knowledge of the same.”

It does not seem to be material, for the purposes of this case, to inquire whether the evidence as to the plaintiff’s reputation was properly excluded or not. The decision of the court in that behalf is not challenged by any assignment of error by either party, and must therefore be held to have been proper. But the rule as to the admission of evidence of that character is stated in Skidmore v. Bricker, 77 Ill. 164, as follows; “ "Where a person has an unblemished character, and the prosecuting witness is aware of that fact, it necessarily requires more evidence to create a reasonable belief of guilt, than when the accused has a bad character; and in cases where the prosecution is based on belief, this character of evidence is proper for the purpose indicated, but the reason of the rule ceases when the charge is based on knowledge of the facts.” In the present case the prosecution was not based on information and belief, but on Leyenberger’s own personal knowledge, and therefore, under the rule thus stated, evidence of character was inadmissible, at least until the plaintiff’s character had been attacked or called in question by evidence offered by the defendant. But whether said evidence was properly excluded or not, it was not before the jury and so could not serve as the basis of an instruction.

That the instruction given was erroneous does not admit of doubt. Not only was there no evidence in the record to which it could apply, but it called the attention of the jury to evidence which had been offered and persistently paraded before them, but which had been excluded. The instruction was an intimation to the jury that there was evidence before them bearing upon the question of the plaintiff’s reputation for honesty and integrity, and, as the only evidence on that subject which had been offered was that which the court-excluded, the instruction may have been well understood by the jury as intimating that such evidence, though excluded, was still subject to their consideration, and had a legitimate hearing upon the issues which they were to decide.

An instruction very nearly identical with the foregoing, where there was no evidence of the plaintiff’s reputation for honesty, was condemned by this court in Frankfurter v. Bryan 12 Ill. App. 549. It is a rule too familiar to require a citation of authorities, that instructions to the jury must be based upon the evidence, and that instructions, therefore, which have no evidence to support them are erroneous.

While an appellate court should not, perhaps, always reverse for an error of .this character, still, whenever it is apparent from all the circumstances of the case that the jury have probably been misled to the injury of the party assigning the error, a new trial should be awarded. We think this is a case of that character. This conclusion is forced upon us in part by the unusual course adopted by the counsel for the plaintiff in his offers of evidence of the plaintiff’s good character. When he had produced one witness on that subject and offered his testimony, and sueh testimony had been excluded and the plaintiff’s exception had been entered, the point which the counsel sought to make was as completely and effectually preserved in the record as it could be by the offer of any number of additional witnesses to the same point. He, however, did not content himself with the offer, but saw fit to introduce six other witnesses, one after another, and put to them the same questions, and repeated in the ease of each the- same offer. Whatever may have been the counsel’s motives, the tendency of such proceeding manifestly was to produce a conviction in the minds of the jury that the plaintiff was able, and if permitted would, establish his-good character by a most formidable array of witnesses. After this had been done, the prejudicial effect of an instruction calling the attention of the jury to the evidence of the plaintiff’s good character is too obvious to be overlooked.

The real contest in the case, as we have said, was upon the issue of probable cause. We have examined all the evidence bearing on that issue with care, and are unable to say that we are entirely satisfied with the conclusion at which the jury arrived. The question, under all the evidence, being a very doubtful one, it was incumbent on the court to instruct the jury with great accuracy, and to avoid giving any instruction which would have a tendency to mislead them. The above instruction, under the circumstances of the case, had clearly that tendency, and the error in giving it is one for which the judgment must be reversed.

But it is urged that the error in giving said instruction can not be considered here for the reason that it was not specified in the defendant’s motion for a new trial. This point, we think, is not well taken. The instruction was excepted to at the time, and so is subject to review on appeal whether there has been a motion for a new trial or not. The rule seems to be that errors of law committed by the Judge during the progress of the trial and duly excepted to at the time, may be assigned for error in an appellate court though no motion for a new trial has been interposed in the trial court, but that the verdict of the jury can not be assailed as being contrary to the law or the evidence, or as awarding too large an amount of damages, until the Judge before whom the trial was had, has been called upon by motion for a new trial to supervise the verdict and determine its correctness. Alleging in a motion for a new trial errors of law committed during the trial, is merely calling upon the Judge to decide a question which he has already determined, a second time; but questions pertaining to the verdict are presented to him for the first time by the motion for a new trial. It is for this reason that the law requires parties complaining of the verdict to submit their objections to the trial court before urging them on appeal. The matter complained of must be submitted to and decided by the court below before an appellate court will take cognizance of it, but an erroneous ruling once made and excepted to is no more erroneous by reason of being decided by the trial court a second time.

The view above expressed is fully sustained by Smith v. Gillett, 50 Ill. 290, where, after consideration of various authorities, it was held that a decision of the trial court improperly excluding competent evidence, if excepted to at the time, may be assigned for error in an appellate court, though no motion for a new trial has been made. The court "in the opinion, cite and overrule the case of Evans v. Lohr, 2 Scam. 511, in which it was held that where a court has given improper instructions to the jury, or withheld such as are legal and appropriate, the proper course to adopt to enable an appellate court to correct the error is to apply for a new trial. In commenting upon this case the court say:

“This was not the point in the case, and if it was, we are inclined to think the reason given for the practice was not a sound one, for by a motion for a new trial the court could not correct the error in the instruction. Ho correction would have been available, as such motion is never made until after the jnry is discharged from the case.”

But it is said that a different rule has been adopted by the Supreme Court in more recent decisions, and upon that proposition we are cited to O., O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104; Emory v. Addis, 71 Ill. 273, and Jones v. Jones, 71 Ill. 562. We have examined these decisions and fail to find that they are really at variance with Smith v. Grillett, supra. In O., O. & F. R. V. R. R. Co. v. McMath a motion for a new trial was interposed, but no grounds therefor were particularly specified as required by the statute. The ground upon which a new trial was, in fact, sought, was that the verdict was contrary to the law and the evidence. The court held that so long as neither the opposite party nor the court below required that the points for a new trial should be in writing, the necessity of a specific statement of such points was to be regarded as waived. In the opinion the court does say; “If plaintiff in error had filed certain points in writing particularly specifying the grounds of his motion, then he would, of course, be confined in the Appellate Court to the reasons specified in the court below, and would be held to have waived all causes for a new trial not set forth in his written grounds.” The proposition thus stated was not before the court for decision, and the cases to which the court refers in support of the doctrine stated, viz., Emory v. Addis and Jones v. Jones, supra, are both cases where the ground for a new trial was that the damages awarded by the verdict were excessive. Where the complaint is that the damages are excessive, or that the verdict is against the law or the evidence, such ground must undoubtedly be presented to the court below by motion for a new trial or it will be considered as waived, and this is all that is established by the three authorities last above cited.

For the error in giving the foregoing instruction the judgment will be reversed and the cause remanded.

Judgment 'reversed.


author: Moran, P. J.

text:
    Patrick J. Blake v. Belle Ranous.

      Landlord and Tenant—Defect in Plumbing—Action against Landlord for Damages.

    1. In an action against a landlord for injuries resulting from the unsafe condition of the building leased or any of its appendages, the declaration should state facts which affirmatively show the landlord’s duty or obligagation to make repairs. The duty does not spring from the relation of landlord and tenant and will not be presumed but must be both stated and proved.
    2. The landlord is not bound, under the penalty of fraud, to disclose defects in the plumbing of a building, even if they are known to him.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    This action was brought to recover from appellant damages for falsely, fraudulently and deceitfully representing a certain building owned by him and which appellee was about to lease, to be in good repair, in a sanitary condition, and fit for occupancy, whereby appellee was induced to lease and occupy said building.
    The original declaration counted on the false representations and stated the injury sustained by plaintiff in her business, health, etc. On the trial plaintiff amended her declaration by filing a count wrhich alleged the ownership of the building (a two-story brick house) by defendant, the leasing of the same by plaintiff, her occupancy, and the payment of. rents, and stating that it was the duty of defendant to maintain and have said premises at the time of said leasing and during the term in a good and healthful state of construction, repairs, cleanliness, and free from noxious gases, vapors and other impurities, and to have the same in such state that the sewers and basins in and about the said premises -would not emit and discharge into the rooms and apartments so leased to plaintiff and so occupied by her, yet the said defendant, not regarding his duty, etc., did not keep, have and maintain said premises in such state of repair, etc., hut during the whole0 of said term, kept and maintained said premises in a bad state of construction and repair, and the drains were foul and the pipes and sinks out of repair; that plaintiff was made sick, etc. The evidence tended to show that plaintiff examined the rooms in the house before she rented; that defendant, while showing the house to her, stated that he was a plumber and. had done the plumbing of the house himself and knew that it was in good condition; that plaintiff, in going over the house, noticed a bad smell in some of the rooms and called defendant’s attention to it, and he said it was because the house had been closed up, and laughed at her suggestion that it might he sewer gas; that plaintiff became sick and feeble after she had been in the house about two months, and that other persons who were in the house and of her family also became sick.
    She remained in the house and paid the rent till the 1st of May, and then moved out after she refused to sign a lease, and after a five-day notice had been served upon her. An examination of the premises by plumbers disclosed that there was a loose joint in the waste pipe, that had never been connected, and through this the gases and odors escaped into the house.
    The court gave to the jury, among others, for the plaintiff, the following instruction:
    56 Third. The jury are instructed that if they shall find, from the evidence in this case, that the defendant, being the owner of the premises mentioned in evidence, in the City of Chicago, leased the same to the plaintiff, to be used by the said plaintiff as a place both of business and residence, and that the plaintiff entered into and occupied the same as tenant of the defendant, and that the said premises, at the time of said leasing, were, and during the time they were so occupied by the plaintiff continued to he, in such unclean and unwholesome condition, without fault of the plaintiff, as to cause sickness to the plaintiff, and if the jury believe, from the evidence, that by reason of impure air or gaseous vapor arising from the defective condition of the sewerage or other appurtenances of the said premises, the health of the plaintiff was impaired, so as to cause the plaintiff pecuniary loss and expense, if any, shown by the evidence to your satisfaction, and damage, and that all of the loss and damage aforesaid resulted directly from the unclean and defective state of the said premises, as above set forth, and without fault of the plaintiff, then the jury will find for the plaintiff, and will allow her such damages as will compensate her for the damage and injuries suffered by her, which the jury shall believe, from the evidence, the plaintiff has sustained, -by reason of her aforesaid occupancy of the said premises, if the jury shall believe, from the evidence, that said injury resulted to the plaintiff from the defective construction or condition of the said premises, and without fault of the said plaintiff.”
    There was a verdict by the jury in favor of plaintiff, and the damages were assessed at §1,500, for which sum a judgment was entered, and the case is brought to this court by appeal, and the giving of the instruction above set out assigned for error.
    Mr. S. P. McConnell, for appellant.
    “A landlord who lets a house which is out of repair is not liable to the tenant, or lodgers therein, for any injury they sustain during the term by reason of such want of repair, for there is no law against letting a tumble-down house. The tenant’s only remedy, if any, is upon his contract with the lessor.” 1 Washburn, p. 470.
    “To the tenant the landlord is not liable for a nuisance existing on the premises at the time when the lease was made, nor for defects therein, unless the defect is latent, and the landlord lias been guilty of fraud or actual concealment or deceit in the letting.” Wood’s Landlord and Tenant, p. 921; Taylor’s Landlord and Tenant, pp. 380, 381, 382; Addison on Torts, 1-211; Bowe v. Hunking, 135 Mass. 380; Jaffe v. Harteau, 56 N. Y. 398; Clancey v. Bryne, 56 N. Y. 129; Kulm v. Laury, 3 Oregon, 206; Hart v. Windsor, 12 M. & W. 85; Libby v. Tolford, 48 Me. 316.
    Messrs. Henry T. Helm and Chas. H. Mitchell, for appellee.
    The owner of premises is bound to so construct and have the same, as that it shall not constitute a pest-house held out for rent, under the guise of clean walls and attractive external appearances. Such a tenement is a nuisance within the meaning of the law, and such this count and the testimony in this case show the premises in question to have been.
    It is true the word “ repair ” is used in that count in connection with the alleged duty of the defendant, but is in connection with the allegations which put upon him the duty to u maintain, keep and have the premises at the time aforesaid in a good, healthful state of construction, repairs and cleanliness, and free from noxious gases, vapors and other impurities, and to have and maintain the same in such state and condition of construction, that the sewers and basins, closets and sinks xvould not emit and discharge into the rooms and apartments leased to the plaintiff poisonous and noxious gases, injurious to the health and physical comfort of the plaintiff,” etc.
    How we submit that in the law such xvas the duty of the defendant in the absence of all agreements relating to the subject, that the contrary would be to alloxv him to set up and maintain a nuisance, and hold it out to entice people into the same, and seek to obtain rental from them for so entering and occupying. The authorities" cited in Beichenbacher v. Pakmeyer, 8 Ill. App. 218, fully sustain this position. Gridley v. Bloomington, 68 Ill. 47; Godley v. Hagerty, 20 Pa. St. 387; Swords v. Edgar, 59 N. Y. 28; Todd v. Flight, 90 Eng. C. S. Pep. 377.
   Moran, P. J.

We have been referred tono cases and have been unable to find any which supports the theory of a landlord’s liability, set out in the amended declai-ation and announced in the instruction given to the jury to which exception is taken.

“ To the tenant, the landlord is not liable for a nuisance existing on the premises at the time when the lease was made, nor for the defects therein, unless the defect is latent and the landlord has been guilty of fraud or actual deceit in the letting.” Wood’s Landlord and Tenant, 921, and cases there cited.

There is no implied contract on the part of a landlord that the leased premises are tenantable or that they will continue so during the term, nor is he bound to repair unless he lias expressly agreed to do so in the lease or contract of hiring, and a promise to repair, made after the lease is entered into, is a mere nudxtm pactum, and no liability exists for a failure on his part to make such repairs. Wood’s Landlord and Tenant, Sec. 382, Lucas v. Cutler, 104 Ind. 81; Fisher v. Lighthall, 4 Mackey, 82.

In an action against a landlord for injuries resulting from the unsafe condition of the building leased or any of its appendages, the declaration should state facts which affirmatively show the landlord’s duty or obligation to make repairs. The duty does not spring from the relation of landlord and tenant and will not be presumed but must be both stated and proved. Kahn v. Love, 3 Oregon, 206.

Both the amended declaration and the instruction given assert the duty as based upon the mere fact of letting the premises alone. Such a doctrine is decidedly opposed to all the cases.

There may be passive concealment by a landlord of some matter which, under the circumstances, it would be his legal duty to disclose, and in such case he may be made liable for the result as for a negligent act from which injury results, as where tenements were let which were known to the landlord to be infected with small-pox, a fact which no examination which the tenant could make would have disclosed. Minor v. Sharon, 112 Mass. 477; Cesar v. Krautz, 60 N. Y. 229.

Brit a defect in the plumbing of a building is like a defect in the flues of a chimney, or a leak in steam pipes, or a fault in the heating apparatus. As was said in Carson v. Whiting, 12 Daly, 408, “these imperfections can not be discovered, perhaps, by any examination that the intending tenant can be expected to make, but yet it has never been held that the landlord is bound, under the penalty of fraud, to disclose such defects, even though he be aware of them. The tenant is as much bound to make ordinary repairs to the plumbing, as he is to make any other ordinary repairs in a house that he imprudently leases whilst it is out of order.” If a landlord by artifice or contrivance prevents the intending tenant from discovering defects, or if he fraudulently misrepresents the condition of the building in some material particular wherein lie claims special knowledge, knowing that the tenant relies on his representation, and not on investigation or examination, no doubt the tenant may rescind the contract of lease, and vacate the building upon discovering the hidden defect, or the falsity of the representation, and may defeat upon such facts any claim for rent based upon the lease.

"Whether the tenant may continue to occupy the premises after circumstances have arisen, which would put a prudent person on notice that the representation was false, and then recover damages for sickness caused by the bad condition of the premises, is a question which we are not called upon at this time to determine.

The amended declaration and the instruction which we are discussing are not based on that phase of the case. ¡Neither are the}' grounded upon the theory that the landlord has maintained a nuisance on premises over w'hieh he and not the tenant had control, and from which the tenant suffered injury.

The case of Marshall v. Cohen, 44 Ga. 489, and cases similar in principle cited by counsel for appellee, are wholly unlike the case stated in the amended declaration, and do not support the instruction.

It is unnecessary to discuss other instructions, or other alleged errors in the case. For the errors pointed out the judgment will be reversed and the cause remanded to the Circuit Court.

Reversed a/nd remanded.


text:
    The Supreme Council of the Royal Arcanum v. Louisa Lund, Administratrix.

      Life Insurance—Benevolent Association—Misrepresentations or Concealment—Defective Instruction.
    In an action of assumpsit on a benefit certificate issued by a benevolent order to one of its members, it is held: That the evidence sustains the defense based on certain misrepresentations or concealments made by the deceased member; and that an instruction which ignored the affirmative defenses, which the evidence tended to establish, was erroneous.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This was a suit in assumpsit, brought by Louisa M. Avery against the Superior Council of the Royal Arcanum, to recover a sum of money payable to her, by agreement, upon the death of her son, Charles A. Avery, who at the time of his death was a member of the Royal Arcanum. During the pendency of the suit Louisa M. Avery died and, her death being sug- • gested upon the record, Louisa Lund, her administratrix, was substituted as plaintiff. A trial was afterward had before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for $3,000, and the defendant brings the record to this court by appeal.
    The defendant is a corporation organized under the laws of the State of Massachusetts, and is the legislative and governing body of the Royal Arcanum, a secret benevolent order, one of the objects of which, as declared by its constitution, is “to establish a widows and orphans’ benefit fund, from which, on the satisfactory evidence of the death of a member of the order who has complied with all its lawful requirements, a sum not exceeding $3,000 shall be paid to his family or those dependent upon him, as he may direct.33 The Supreme Council is composed of its own officers and representatives from the Grand Councils of the different States, and the latter councils are composed of their respective officers and representatives of the subordinate councils, which are the local bodies through which members are received into the order by initiation. The fund out of which all death benefits are paid is held in the treasury of the Supreme Council, said fund being replenished, whenever necessary, by assessments upon the membership of the order.
    The qualifications for membership prescribed are that the applicant should be between twenty-one and fifty-five years of age, of sound health and good moral character, a believer in the Supreme Being, and competent to gain a livelihood for himself and family. He is required to sign an application for admission to the order, of a prescribed form, and present himself to the subordinate medical examiner for examination, who is to make out a report of such examination upon a prescribed form or blank, such report constituting a part of the application, and the application and medical certificate are then forwarded to a supervising medical examiner, of whom one is appointed in each State. If he approves of the same, and certain other conditions are complied with, the applicant is eligible to an election as a member of the order.
    On the 13th day of March, 1884, Charles A. Avery made an application for membership in Allen Council, Ho. 49, located at Milwaukee, Wisconsin. He was examined by Dr. Carlson, the subordinate medical examiner at Milwaukee, and his application and medical certificate being forwarded to and approved by Dr. Gordon, the supervising medical examiner, he was duly elected and admitted to membership, and afterward received the following certificate:
    Royal Arcanum Benefit Certificate.
    “This certificate is issued to Charles A. Avery, a member of Allen Council, Ho. 49, Royal Arcanum, located at Milwaukee, Wisconsin, upon evidence received from said council that he is a contributor to the widows and orphans3 benefit fund of this order; and upon condition that the statements made by him in his application for membership in said council, and the statements certified by him to the medical examiner, both of which are tiled in the supreme secretary’s office, he made a part of this contract, and upon condition that the said member complies, in the future, with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the Supreme Council to govern said council and fund. These conditions being complied with, the Supreme Council of the Royal Arcanum hereby promises and binds itself to pay out of its widows and orphans’ benefit fund, to Louisa M. Avery, mother, a sum not exceeding three thousand dollars, in accordance with and under the provisions of the law governing said fund, upon satisfactory evidence of the death of said member, and upon the surrender of said certificate; provided that said member is in good standing in this order at the time of his death, and provided, also, that this certificate shall not have been surrendered by said member, and another certificate issued at his request, in accordance with the laws of this order.
    “In witness whereof, the Supreme Council of the Eoyal Arcanum has hereunto affixed its seal and caused this certificate to be signed by its supreme regent, and attested and recorded by its supreme secretary, at Bo'ston, Massachusetts, this 7th day of June A. D. 1884.
    “ John Haskell Butler, “'Supreme Regent.
    “W. O. Robson.
    “ Supreme Secretary.”
    The evidence shows that Avery obtained a blank application for membership and filled the same out in his own hand-writing, and presented it to the medical examiner, hut the rules oi; the order requiring the application to be in the hand-writing of the examiner, the latter copied it on another blank and the copy was then signed by Avery. The application thus signed by him contained, among other things, the following:
    “ I do declare, upon my honor as a man, that the said statements by me ^subscribed herein are each and every one of them true, to the best of my knowledge and belief. * * * I am temperate in my habits, and have no injury or disease which will tend to shorten my life; am now in good health and am able to gain a livelihood. 1 do hereby consent and agree that any untrue or fraudulent statement made above, or to the medical examiner, or any concealment of facts by me in this application * * shall forfeit the rights of myself and_ my family, or dependents, to all benefits and privileges therein. ”
    Among the interrogatories in said application, to ho answered by the applicant, were the following:
    “ Have you ever had any severe illness or injury, or undergone any surgical operation?” To this the answer was “no.” “Have you ever been subject to or had any of the following diseases ? Answer yes or no to each. ” A large number of diseases were particularly specified, and among them “ fits and convulsions,” and “loss of consciousness,” and to these the answer was “ no.”
    “ Is there anything, to your knowledge or belief, in your physical condition, family or personal history, or habits, tending to shorten your life, which is not distinctly set forth • above ? ” To this also the answer was “ no.”
    The evidence shows that about ten years prior to the date of said application, said Avery had a very severe illness, his disease being what is known as cerebro-spinal meningitis, and that his disease manifested itself or was accompanied by spasms and convulsions, or what is ordinarily termed “ fits” and loss of consciousness. The medical witnesses who were examined testify that cerebro-spinal meningitis is an exceedingly dangerous disease.
    Again, on the 4th day of January, 1884, only a little more than two months prior to the date of his application, Avery was taken severely ill, his symptoms closely resembling those of his former illness. He was then employed in the office of Peck’s Sun, a newspaper published in Milwaukee, and the business manager of said newspaper, hearing some noise in the room where Avery was employed, went in and found him lying on the floor unconscious and apparently lifeless. He was taken to his home insensible, and during iiis illness which lasted about eight days, he was unconscious a considerable part of the time, and was suffering from convulsions or fits. The physician who was called to attend him testifies that he found him very ill, suffering from spasmodic contraction of the muscles of the back, “which would draw him way back—draw his head and heels together.” The physician also testifies that, after Avery had recovered consciousness, he told him that he had had two or three similar attacks and that they were caused by a very severe attack of cerebro-spinal meningitis which lie had had some years before, and that any undue excitement, overheating or sudden cold was likely to bring them on; that the treatment which the witness had given him was the only one which had ever had any effect upon him; that Avery had in his pocket-book, and took out and showed to the witness, a paper written by his family physician, who had told him to show it to any physician and ask him to follow the line of treatment there indicated, in case he had any of those attacks, saying that unless such treatment was followed, the chances were that he would die. Said witness gave it as his opinion that the illness which he was called to treat was the result of spinal meningitis; that there was evidently a lesion of the spinal cord at the base of the brain, and that any sudden exposure or undue exertion would be liable to produce that set of symptoms.
    There is also evidence of an admission by Avery to his sister, prior to his sickness of January, 1884, that he was subject to such attacks; and also of an admission by him to another witness that at some time early in life he lifted a'heavy weight and felt something give way in his back, and that his back had troubled him ever since.
    On the 27th day of September, 1884, Avery died, the cause of his death, as the evidence tends to show, being “ spasms of the muscles of respiration and glottis.”
    The plaintiff’s evidence tends to show that Avery, at the time he made his application for membership, told the medical examiner, to whom he delivered the application, that he had the cerebro-spinal meningitis about ten or twelve years before, but that he had recovered from it and was then entirely well. There is no evidence, however, that he made any disclosure as to his then recent illness, or as to any of the other attacks which he had subsequent to the illness of which he made mention. Hor is it shown that he made any mention of the injury received by him when young, or of the prescription which his family physician had given him, and which he was carrying around in his pocket, or of his physician’s advice accompanying said prescription.
    Mr. H. H. C. Miller, for appellant.
    The plaintiff is bound by the statements made by Charles A. Avery in his written application. They can not be varied by parol testimony, unless it can be shown clearly and unequivocally that he was induced to make them by fraud. Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108; Hugginson v. Doll, 13 Mass. 96; Whitney v. Haven, 13 Mass. 171; Weston v. Eames, 1 Taunt. 115; Allerton v. Brown, 14 Mass. 152; Parks v. General Int. Ins. Co., 5 Pick. 34; Flinn v. Tobin, 1 Wood & Wall. 367; Franklin Ins. Co. v. Martin, 8 I. L. J. 144.
    Ho particular form of words is necessary to constitute a warranty. Words of affirmation, affirming matter of fact, upon the faith of which the party contracts, are as competent to make a warranty as any strict technical terms. Bliss on Life Insurance, p. 46; Co-operative Assoc, v. Laflin, 53 Miss. 15; Ripley v. Ætna F. Ins. Co., 30 N. Y. 136.
    A warranty must he strictly complied with, whether it is as to a material or a trivial fact. A misstatement in a warranty is, therefore, fatal to the contract, although arising from the most innocent mistake or from false information afforded by others, or from mere inadvertence, and as much so as if made with the most fraudulent intent. Bliss on Life Ins., Secs. 36-40; May on Ins., Secs. 181, 182; Jeffries v. Life Ins. Co., 22 Wall. 47; Co-op. Life Assoc, v. Laflin, 53 Miss. 1; Swick v. Home Life Ins. Co., 2 Dill. 160; Barteau v. Phœnix Mut. L. Ins. Co., 67 N. J. 595 ; Edington v. Ætna L. Ins. Co., 77 N. Y. 564; S. C., 100 N. Y. 536; Ætna L. Ins. Co. v. France, 91 N. Y. 510; New York L. Ins. Co. v. Fletcher, 117 U. S. 519; Dwight v. Germania L. Ins. Co., 4 Cent. Rep. 529.

      Whether the stipulations in the contract of insurance before the court shall be held to be warranties or representations only, if it appears from the evidence that any of them are false as to matters material to the risk, the legal effect of their falsity is the same, and the plaintiff can not recover. Bliss on Life Ins., Secs. 35-40 and 52 (footnotes, 2d ed.); Carpenter v Prov. & Wash. Ins. Co., 41 U. S. 495; Daniels v. Hudson R. F. Ins. Co., 12 Cush. 417; Foote v. Ætna Life Ins. Co., 61 N. Y. 576; Carpenter v. Am. Ins. Co., 1 Story 62; Co-Op. Life Assoc. v. Laflin, 53 Miss. 1; New Eng. F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; Hartford L. & A. Ins. Co. v. Gray, 91 Ill. 159.
    Mr. F. S. Baird, for appellee.
   Bailey, J.

In this case the plaintiff seeks to recover upon a contract in the nature of a policy of insurance upon the life of Charles A. Avery, and the defendant sets up in defense and has introduced evidence tending to prove certain false representations in the application upon which said contract is based. The defendant also sets up a breach of warranty, the application being, by the express agreement of the parties, incorporated into and made a part of said contract. As we view the case it will not be necessary for us to determine whether the statements of the application should be treated as representations or warranties, since, if they are shown to be false, their effect upon the plaintiff’s right to recover is the same in the one case as in the other. The court, at the instance of the plaintiff, gave to the jury the following instruction:

“ The jury are instructed that if they believe from the evidence the plaintiff has made out her case, as alleged in her declaration, they must find for the plaintiff.”

All the plaintiff needed to do to make out her case, as she lias alleged it, was to prove the material averments of her declaration. The instruction, therefore, entirely ignored all affirmative defenses which the evidence on the other side tended to establish. The plaintiff may have made out her case as alleged in her declaration, and yet such case may have been met and overthrown, not by disproving the declaration, but by establishing facts aliunde, the effect of which was to defeat the plaintiff’s right to recover. If the defense had consisted of a mere traverse of the averments of the declaration, the instruction might not have been misleading, but as applied to the case where the defendant sets up and relies upon an affirmative defense, in the nature of a confession and avoidance, it can not be sustained. There the plaintiff can succeed only where the evidence upon all the issues preponderates in her favor.

But we are of the opinion that, upon thé evidence, the verdict should have been for the defendant. Avery, the insured, by his application for membership in the Boyal Arcanum, represented and, as we think, warranted that he was then in good health; that he had never had any severe illness, and especially that he had never had fits, convulsions or loss of consciousness, and that there was nothing in his physical condition or personal history or habits tending to shorten his life. That these representations were untrue is too plain to admit of argument. The evidence is uncontradicted that about ten years before he had a very severe and dangerous illness, resulting, there is some reason to suppose, from an injury received in his youth. But this is not all. The evidence very strongly tends to show that, as the result of said illness, he was ever afterward laboring under a tendency to attacks of illness of a very serious and dangerous character, and, in fact, had frequent attacks of such illness, said illness usually, if not uniforinly, taking the form of fits, convulsions and loss of consciousness, and that he was perfectly well aware of his diseased condition and his constant liability to such attacks. At the time he made'his application he had but jnst recovered from a severe illness of the character above described, and it seems probable that his death, which took place about six months afterward, resulted from another and similar attack.

But it is urged that because Avery stated to the defendant’s examining physician at the time his application was made out,' that he had an attack of cerebro-spinal meningitis ten or twelve years before, the defendant can not now take advantage of the statements in the application, either as constituting false representations or a warranty. It may be admitted that if Avery had fully disclosed to said physician at the time all the facts in relation to his health and physical condition, both past and present, the defendant would have been precluded from taking advantage of the untrue statements embodied in the written application. The evidence, however, clearly shows that he did not do so. All the disclosure made was in reference to his illness ten or twelve years before, but that was coupled ' with the statement that he had entirely recovered, and that he was then in as good health as he had ever had in his life. His subsequent predisposition to illness and his repeated attacks, and especially the one from which he had then just recovered, were carefully concealed. The facts thus misrepresented and concealed were those which, above all, it was important for the insurer to know. An illness suffered many years before, and from which the applicant had entirely recovered, was doubtless regarded as of very little consequence? hut it was very material that the insurer should be informed that said illness had produced and left strong and irradieable tendencies to further attacks of illness which were liable at any time to prove fatal. The most important and material facts were thus concealed or misrepresented, and we see no legal impediment in the way of the defendant’s setting up such misrepresentations or concealments as a defense.

We have not taken the pains to examine critically the special plea filed on behalf of defendant, as the defenses set up are all available under the general issue. Said defenses seem to us to be established by evidence which is substantially uncontradicted, and the verdict should, -therefore, have been for the defendant.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Joseph Oswald v. Peter Wolf.

      Jurisdiction—Appeal—Freehold—Might of Way.
    No appeal lies to this court in a case involving an estate in fee in a right of way, such an estate being a freehold.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. Perry A. Hull, for appellant.
    Mr. Elmer W. Adkinson, for appellee.
   Bailey, J.

This was a bill in chancery, brought by Peter Wolf against Joseph Oswald, for the establishment and perpetual maintenance of a right of way, in favor of the complainant, over certain lands of the defendant, and for the removal of certain obstructions which the defendant had erected thereon. The bill alleges, in substance, that in December, 1855, one Peter Duffy, being the owner in fee of a certain tract of land in Cook County, lying on the west side and adjacent to Halsted Street, containing ten acres, conveyed to the complainant the west one-third of said tract, and also at the same time and by the same deed conveyed to the complainant the right of way over a strip of'land fourteen feet in width, running from said west one-third of said tract east, through the center of the remaining two-thirds of said tract, to Halsted Street; that the complainant, in pursuance of said conveyance, entered into possession of said west one-third of said tract, and has ever since continued in possession thereof; that the defendant afterward became possessed of the remaining two-thirds of said tract, subject to the complainant’s right of way over the same, and has recently erected obstructions upon said right of way, so as to. render it impossible for the complainant to use the same. The bill prays that the defendant be decreed to remove all obstructions from said right of way, and permit the complainant and those claiming under him, an unobstructed passage over the same, and to forever maintain said right of way in condition to be used by the complainant and those claiming under him; and a general prayer for relief.

The defendant, by his answer, among other things, denied and put in issue the complainant’s title to said right of way, and the cause coming to be heard on pleadings and proofs, the court rendered a decree establishing said right of way in the complainant, and perpetually restraining the defendant from obstructing the same, and from hindering and impeding the uninterrupted use of the same by the complainant, his agents, servants or assigns, and also requiring the defendant, by a certain day, to remove the obstacles from said right of way in such manner as to enable the complainant to use and enjoy the same.

From the foregoing statement it will be seen that a serious question arises as to the jurisdiction of this court. Section 88 of the Practice Act, as amended June 3, 1879, provided that in all cases in which a freehold was involved appeals should be taken from the trial court directly to the Supreme Court, and the same provision, in substance, is contained in the 8th section of the Act to establish Appellate Courts, as amended June 6,1887. This court, then, has no jurisdiction of appeals in cases where a freehold is involved.

In the present case there is directly involved an estate in fee in a right of way, which is an incorporeal hereditament. The complainant, by his bill, claims title in fee to a right uf way over the defendant’s lands, and such title is put in issue by the pleadings and is established by the decree. An estate in fee in an incorporeal hereditament is a freehold. Blackstone defines a freehold to be “ such an estate in lands as is conveyed by livery of seizin, or of tenements of any incorporeal nature, by what is equivalent thereto.” 2 Black. Com. 104. The same learned author says that the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had, is by grant. Ibid. 3L7. Accordingly, freeholds of incorporeal hereditaments are said to lay in livery, and of incorporeal hereditaments in grant. .1 Preston on Estates, 13. Mr. Preston, in discussing the doctrine of freehold estates, says: 61 Hereditaments which are incorporeal, as well as hereditaments which are corporeal, are the objects of this doctrine, and admit of application of this term. So long as an estate of freehold subsists in the property, that estate will require the denomination of a freehold interest, without regard to the subject of property in which the estate is subsisting.” 1 Preston on Estates, 214. In Hewlins v. Sliippam, 5 Barn. & G. 221, it was held, on full and elaborate review of the authorities, that a right to A and his heirs to construct and maintain a drain through the lands of B for the purpose of carrying water from the land of A, was a right of freehold.

A freehold being involved in this case, we are without jurisdiction, and the appeal must therefore be dismissed.

Appeal dismissed.


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    Joel V. Taylor v. Vessel Owners’ Towing Company et al.

      Arbitration—Time and Place of Hearing—Notice to Parties—Waiver— Estoppel—Arbitrators Must Act Together—Bill to Set Aside Award.

    1. It is the duty of arbitrators to give due notice to the parties of the time and place of hearing before proceeding in a cause submitted to them.
    2. A waiver of notice by a party to an arbitration should be shown to be clear and unequivocal. Where it is set up against him as an estoppel that others appeared for him, such estoppel must he clearly established.
    3. It seems that notice informally given by an adversary is insufficient, unless the party receiving it appears and participates in the hearing without objection.

      4. Arbitrators must act togefchsr and they can not take testimony separately, unless by express consent of the parties tp. the submission.
    5. An award will be sustained where only irregularities are urged againpt it, but where the departure from governing rules is such as to deprive a party of a fair opportunity to be heard, or to permit a hearing in part before one only of two arbitrators chosen, the award will be set aside.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray E. Tuley, Judge, presiding.
    Mr. William H. Condon, for appellant.
    The arbitrator should notify both parties of the time and place of hearing, otherwise the award will be set aside. Reeves v. Elbridge, 20 Ill. 383; Williams v. Schmidt, 54 Ill. 205.
    When an arbitrator proceeds without giving the party against whom the award is made notice of the proceedings under the submission, the award is void. Ingraham v. Whitmore, 75 Ill. 24.
    Arbitrators must act together; they must each be present at every meeting, and the witnesses and parties must be examined in the presence of them all. Parties are entitled to have the experience and judgment of each arbitrator at every stage of the proceeding. Smith v. Smith, 28 Ill. 56.
    Messrs. Schuyler & Kremer, for appellees.
   Moran, P. J.

This was a bill filed to set aside an award on the ground that complainant, who was a party to the submission, was not notified of the time and place of hearing by the arbitrators, and not notified by them or any other person to produce his witnesses before them. To the bill a plea -was filed alleging that the arbitrators did appoint a time and place, and that complainant had knowledge thereof, and could, if he saw fit, have been present with his witnesses, and traversing all the statements of the bill in that regard.

The subject-matter of the arbitration was a question of liability for a collision which occurred between a vessel belonging to complainant and another vessel, while said complainant’s vessel was being towed into the port of Chicago by a tug owned by the Vessel Owners’ Towing Company.

It is very clear from the evidence that the arbitrators never gave complainant any notice of the time or place of hearing, or any notice to produce his witnesses before them. One of the arbitrators testified that he did not notify the complainant when he commenced taking testimony, and that, in fact, he would not notify him, as he did not consider it his duty to notify him or any of the principals. He did not notify complainant of the time when the testimony was taken, or that the arbitration was going on. He further testified that the arbitrators did not care about inviting the principals.

Morse in his work on Arbitration and Award, at page 118, says: “In the Hnited States the duty of giving notice of the time and place of hearing seems to belong to the arbitrators. They have it in charge to see that sufficient notification is made to each party, though the manner in which it shall be made * * * may apparently be selected by them at their own option. It is the fact of notice which alone appears to be essential. * * * The necessity that by some means or other sufficient notice should be actually brought home to all parties, is absolutely imperative. If there has not been such notice, there can not be a legal hearing nor a valid award.”

The decided cases, so far as we have been able to examine them, seem to fully support the foregoing statement of the law. It was said by the Supreme Court of Maryland, in Wilson v. Boor, 40 Md. 488, “ it would be in utter subversion of the principles of enlightened jurisprudence to hold that arbitrators selected by the parties for the determination of their disputes have the power to disregard such a vital and cardinal principle in the administration of justice, as to undertake to discharge their duties without notice to the parties of the hearing and fair opportunity of trial.”

In Curtis v. Sacramento, 64 Cal. 102, the court said: “Itis true as has been urged, that an award is the judgment of the tribunal selected by the parties to the submission; but greater effect can not be given to it than is given by law to the judgment of the inferior court. As an inferior tribunal, the authority of the arbitrators was limited by the agreement of submission, and the agreement can not be interpreted to authorize the plaintiffs to institute an ex parte hearing before the arbitrators. The right to notice of a time and place for a hearing upon the matter submitted was implied in the agreement to submit, unless it was expressly waived by the terms of the submission.”

In Wood v. Helme, 14 R. I. 329, it is said: “Without question it was the duty of the arbitrators under the submission in this case, to give due. notice to the parties of the time and place of hearing the cause before proceeding therein. * * * Furthermore, the plainest principles of justice require this. It was a judicial proceeding directly affecting the interests of both parties to the submission ; and the very first step in all proceedings of this sort, is to give proper notice to the parties of the time and place of hearing or trial; and until this is done no jurisdiction to act is acquired.” And in Jordan v. Hyatt, 3 Barb. 288, the court, in speaking of the award made without the appointment of a time and place for hearing and without notice, said: “It is the nature of the judgment of an inferior court which has not obtained jurisdiction of the parties. It is not necessary to show fraud or corruption in such a case to set aside an award. The arbitrators are bound to give the parties an opportunity of being heard in relation to the matter submitted; and without this they have no authority to decide the question in controversy.” See also the following: Ingraham v. Whitmore, 75 Ill. 24; Elrnendorf v. Harris, 23 Wend. 628; Lutz v. Litliicum, 8 Pet. 178; Bullit v. Musgrave, 3 Grill. 31; Webber v. Ives, 1 Tyler (Vt.) 442; Frey v. Vanlear, 1 Serg. & R. 433; 6 Wait’s Actions and Defenses, 522, 523, and cases there cited.

It is contended in this case, however, that while the arbitra, tors did not give or cause to be given to complainant any notice, yet he knew that the arbitration was going on and could have appeared before the arbitrators in person, and it is said that the captain of his vessel appeared before the arbitrators and brought some of the crew as witnesses, and that the arbitrators heard ail the evidence which the captain produced to them.

It is disclosed in the evidence that complainant’s captain and crew were examined by the arbitrators as to the circumstances of the collision, but complainant swears that he never authorized the captain to appear before them, and that he did not know that he had appeared till after notice of the award was given him.

Higgie, who was president of the "Vessel Owners’ Towing Company and was looking after the interests of his company in the arbitration as the adversary of complainant, testifies that he was notified by the arbitrators on the 25th of August, that they would meet the next morning at the office of said company, and that he met complainant on the sidewalk and notified him that they would so meet.

Complainant denies that Higgie gave him any such notice, but admits that he asked Higgie on one occasion about the arbitration, and when he would bring lrs witnesses, and was told that the arbitrators were then in his (Higgie’s) private office hearing testimony.

"We have found no case which holds that notice informally given by an adversary will be sufficient, unless such notice is acted on and the party appears before the arbitrators and takes part in the hearing. If a party appears before the arbitrators and participates in the hearing without objection, then it does not matter how the notice of the meeting or the knowledge that the arbitration is in progress reaches him. The object of notice is to give the party an opportunity to be present, and hear what testimony is brought before the arbitrators by his opponent, and to present his own case to them.

A party may, of course, waive notice and appear before the arbitrators on casual or accidental information that the inquiry is proceeding, but he can not be held bound to appear on such casual information, and if he does not appear, no notice having been given him by the arbitrators, he can not be held bound by the award.

There is evidence tending to show that appellant said that his captain would represent his case before the arbitration, but there is no evidence that he ever told the arbitrators so. All the testimony that tends to show that appellant was actually represented by his captain upon the, hearing, comes from his adversary. The arbitrator who testifies states that he supposed the captain was representing appellant, but he was not told so by appellant, or by the captain.

The captain did appear before the arbitrators when the testimony of the crew of appellant’s vessel was taken, but it does not appear who notified the captain or crew to be present, nor does it appear that the captain was present when the testimony of complainant’s opponents was heard.

It is very obvious that the arbitrators wholly misconceived their duty in the matter of giving notice; that they did not regard it as necessary to give notice, and that they gave no notice to appellant. Such being the case the acquiescence of appellant and the waiver by him should be shown to be clear and unequivocal. The action of his captain is set up against him as an estoppel, and such an estoppel must be clearly established.

There is another objection to the validity of the award. It appears that pending the inquiry one of the arbitrators left the city, and while he was absent Iiiggie applied to the other arbitrator to take the testimony of a witness who was desirous" of going away. The testimony was taken and reduced to writing by the one arbitrator, and was considered by both arbitrators in making up the award. It is a fundamental rule of arbitra-. tions that the arbitrators must act together, and they can not take testimony separately, unless by the express consent of the parties to the submission. “They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of all, for the parties are entitled to have recourse to the arguments, experience and judgment of each arbitrator, at every stage of the proceedings, brought to bear on the minds of his fellow-judges, so that by conference they shall naturally assist each other in arriving at a just conclusion.” Smith v. Smith, 28 Ill. 56.

True, Higgle swears that he asked appellant to consent that one arbitrator should take the witness’ testimony, and that lie agreed to it, but this is positively denied by appellant. The arbitrator swears that it was he suggested to Higgle that he would take the testimony of the witness, and it nowhere appears that the arbitrator was informed by Higgie that appellant consented to it. Hpon this evidence we are unable to iind that appellant consented that said witness might be examined by one arbitrator. This irregularity is of itself sufficient to invalidate the award. Morse on Arbitration, 151-2, and cases cited; National Bank v. Donaghan, 30 Hun, 29.

The whole proceeding in the case at bar seems to have been very loose on the part of the arbitrators, and, while they were not guilty of intentional wrong, they clearly 'misapprehended their duty. Awards will be sustained where only mere irregularities are urged against them, but where the departure from governing rules is such as to deprive a party of a fair opportunity to be heard, or to permit a hearing in part before one only of the two arbitrators chosen, the award should not be allowed to stand.

We think the appellee failed to sustain its plea, and that the court should have granted the prayer of the bill and set aside the award; and the judgment will be reversed and the case remanded, with directions to the Circuit Court to enter such decree.

Reversed and remanded.