author: Tanner, P. J.

text:
    William C. Taylor, Adm’r v. George Thompson.
    1. Promissory note—Innocent purchaser—Fraud.—It was urged in defense that the form of the note in suit and its indorsements were such as should put a purchaser upon inquiry, but the evidence showed no fraud in obtaining the execution of the note, and even if the transaction was fraudulent in reference to the consideration of the note, that taint could not follow it into the hands of an innocent purchaser.
    2. Failure of consideration.—A failure of consideration in whole or in part, or fraud in the consideration of the note, cannot be set up as a defense, where the note has been assigned before its maturity for a valuable consideration, without tracing its defects to the knowledge of the assignee.
    Appeal from the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.
    Messrs. T. T. & D. W. Fountain, for appellant;
    that want or failure of consideration cannot be set up against an innocent purchaser before maturity, cited Rev, Stat. 1874, Chap. 98, § 9.

      The fraud which would vitiate must relate to the obtaining of the note, and not to its consideration: Woods v. Hynes, 1 Scam. 103; Mulford v. Shepard, 1 Scam. 583; Adams v. Wooldridge, 3 Scam. 255; Latham v. Smith, 45 Ill. 25; Shipley v. Carroll, 45 Ill. 285.
    To make failure of consideration a defense, it must be shown that appellee is not a iona fide purchaser: Stacker v. Watson, 1 Scam. 207; Topper v. Snow, 20 Ill. 434; Mitchell v. Deeds, 49 Ill. 416.
    The indorsee is presumed to have taken the note in due course of trade, before maturity, in the absence of proof to the contrary: Depuy v. Schuyler, 45 Ill. 306; Wightman v. Hart, 37 Ill. 123; Mulford v. Shepard, 1 Scam. 583.
    That the indorsee could sue in his own name, the indorsement being in the nature of a guaranty: 2 Parsons on Bills, 53; Upham v. Prince, 12 Mass. 14; Blakely v. Grant, 6 Mass. 386; Myrich v. Hasey, 27 Me. 9.
    An agreement that the note would not be collected unless the agent returned and fixed up the machine, was not proper to be shown: Foy v. Blackstone, 31 Ill. 538; 2 Parsons on Bills 509.
    Messrs. Hammock & Davis, for appellee;
    that the Davis Sewing Machine Co. is bound by the acts of their agent, the payee in the note, and is not an innocent purchaser, cited Story on Agency, §33; Commercial Ins. Co. v. Ives, 56 Ill. 402; R. R. I. & St. L. R. R. Co. v. Wilcox, 66 Ill. 417; St. L. & M. Packet Co. v. Parker, 59 Ill. 23.
    That the form of the note should have put appellant upon inquiry, and he is bound to make such inquiry: Sims v. Bice, 67 Ill. 88; Le Neve v. Le Neve, Leading Cas. Eq. 158.
    That the Davis Sewing Machine Co. could not buy the note, being an incorporated company: Angelí and Ames on Corporations, §111; Beatty v. Lessee of Knowles, 4 Pet. 152; N. Y. F. Ins. Co. v. Ely, 2 Cow. 664; Lowe v. Bennet, 5 Conn. 574.
   Tanner, P. J.

This case was tried in the Circuit Court of Perry county, on appeal from a justice of the peace, and a verdict and judgment obtained for the appellee, from which the appellants appealed.

The appellants on the trial offered in evidence, with its indorsement, the following promissory note:

“¡$75. “January 10, 1874.

“ Eighteen months after date, I promised to pay to the order of A. J. Shepherd, seventy-five dollars, payable at Adams’ express, Coultersville, 111., for value received, with ten per cent, interest from maturity. I hereby confess judgment for the above sum, with ten per cent, fees, if collected by an attorney. This note is given subject to the conditions on the back. I also agree to make no payment on this note to any agent unless he has this note in his possession, and indorses the payment on the back at the time it is made. bis

bis “ George + Thompson, milrk-

“ P. O. address, Coultersville, 111.

“ Witness, S. E. Baldwin.”

Upon the end of said note is (printed) the following:

“ Remington Sewing Machine, 27. J. Shepherd, general agent, 617 27orth Fourth street, St. Louis, Mo.

“Upon the back of said note are the following indorsements: “Eor value received, I hereby guarantee the prompt payment of the within note.

“(Signed) 27. J. Shepherd,

“ Mg’r. P.

“Pay John Taylor for collection account of J. B. Collins.”

The appellee then testified that the note was given to one Baldwin for a sewing machine. That Baldwin took the machín e to his house to sell it to him, but his family did not know how to use it, and Baldwin had no needles with him, and could not teach his family, but he was to return in a few days and teach them; and if he did not he would return the note. That he, appellee, then signed and delivered the note, after having it read in presence of his family and one Woodsides, who was a shrewd business man, and would know if anything was wrong about it. That Baldwin said the machine would stand good for itself. That his family could not use it; it would not run; it was out of repair, and that he had never seen Baldwin since he gave the note, and when sued he took the machine and left it with the justice at his office. In these statements the appellee was fully corroborated.

The appellants then read in evidence the deposition of J. B. Collins here following:

I am the general manager of western business of Davis Sewing Machine Company, and reside at Chicago. I have been manager for said company for three and a-half years past, with office at Chicago; and for a year prior to that time with office at St. Louis. Have whole control of business for "West. Ho other person in the West has had authority to employ agents to sell machines for said company, or make contracts during the time I have been manager of said company. H. J. Shepherd has had no connection with the Davis Sewing Machine Company during the time I have been manager. He bought machines of the company, and agreed to pay for them, but never was agent of the company in any way. The note in suit was received by the company from H. J. Shepherd, January 16, 1874, and has been owned and under the control and possession of the company ever since. Mr. Shepherd had been purchasing machines of the company, for which he was indebted for more than amount of said note; he sent the note to us — said company-—to be credited upon his indebtedness. The note was received by said company, and said Shepherd was given credit upon his account at the time for the full amount of the note, as he requested. Heither the Davis Sewing Machine Company nor myself had any knowledge of any contract or arrangement upon which said note was given at the time it came into the hands of the company, except what the note showed on its face. At the time of taking the note I had not heard of any defense to said note, and never knew of any until we attempted to collect the note after it became due. S. E. Baldwin has n ever had any connection whatever as agent, or in any other capacity, with the Davis Sewing Machine Company. The indorsement, Pay to John Taylor for collection account of J. B. Collins, manager,’ on the hack of said note, was made by my authority acting for said company, as manager; it was made to John Taylor for collection.”

The appellee insists, first, that the .note was given without consideration; secondly, that it was obtained by fraud.

The only evidence tending to show a want of consideration is that of the appellee and his daughter, and is that “ the machine was not in repair and would not run.” Ho evidence was given to show the value of the machine, or in what respect the same was not in repair, or that it was of less value than the consideration expressed in the note. Still, had this been done, it would have secured no advantage to the appellee. A failure of consideration in whole or in part, or fraud in the consideration of the note, cannot be set up as a defense, where the note has been assigned before its maturity for a valuable consideration, without tracing its defects to the knowledge of the assignee.

It is next urged that the form of the note and its indorsements throw a suspicion upon its character, and should put a purchaser upon inquiry before purchasing. The only reply we make to this view of the case is, that the evidence shows no fraud in obtaining the execution of the note, and were the transaction fraudulent in reference to the consideration of the note, this taint could not follow it to the hands of an innocent purchaser.

Again, it is urged that the “Davis Sewing Machine Company cannot buy notes in the usual course of trade.” The authorities cited in behalf of this position do not sustain the view taken of them by the appellee; they are all to the point that corporations organized for manufacturing or mechanical purposes cannot go beyond their chartered powers and engage in banking purposes, and in discounting commercial paper, where the charters forbid it, or do not confer the power.

We think the Circuit Court should have rendered judgment for the appellants for the amount of the note, with interest. The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Ezekiel B. Moore v. Matthias Mauk.
    1. Slakdeb—Affidavit.—The slander complained of was, that the plaintiff had sworn falsely in an affidavit filed by him in a chancery cause. The preponderance of evidence, under a plea of justification, going to establish the falsity of the facts stated in the affidavit, the verdict is set aside as being against the weight of the evidence.
    2. Justification—Mitigation of damages.—If it appears that the defendant, although he cannot fully justify, had reason to believe from the plaintiff’s own conduct that the charge was true, then such fact should be considered in mitigation of damages.
    3. Yebdict—Conflicting evidence.—If the finding of the jury is manifestly against the weight of evidence, the verdict will be set aside, even where there is some evidence in favor of the verdict, and in actions ex delicto courts will interfere with verdicts in order to prevent manifest injustice.
    Appeal from the Circuit Court of Crawford county; the Hon. James C. Allen, Judge, presiding.
    Messrs. Whitehead & Jones, and Messrs. Callahan, Jones and Maxwell, for appellant;
    that if it appear that the defendant, though he cannot fully justify, had reason to believe, from the conduct of the plaintiff, that the charge was true, such fact may go in mitigation of damages, cited Sedwick on Damages, 541; Hawver v. Hawver, 78 Ill. 412; Rev. Stat. Chap. 126, § 3.
    Where it appears that the jury were governed by prejudice or caprice in making up their verdict, it will he set aside: Timmons v. Broyles, 47 Ill. 92; Peoria Bridge Asso’n v. Loomis, 20 Ill. 236; City of Chicago v. Smith, 48 Ill. 107; Chapman v. Cowry, 50 Ill. 512; Reno v. Wilson, 49 Ill. 95.
    The verdict ought to he set aside, if manifestly against the weight of evidence: Scott v. Plumb et al. 2 Gilm. 595; Keaggy v. Hite, 12 Ill. 99; Baker v. Pritchett, 16, Ill. 66; Miller v. Hammers, 51 Ill. 175; Adams Express Co. v. Jones, 53 Ill. 463; Hibbard v. Malloy, 63 Ill. 471; Puterbaugh v. Crittenden, 55 Ill. 485; Waggeman v. Lombard, 56 Ill. 42; Goodwin v. Durham, 56 Ill. 339; C.& A. R. R. Co. v. Purvines, 58 Ill. 38; Smith v. Slocum, 62 Ill. 354; Knott v. Skinner, 63 Ill. 239; Reynolds v. Lambert, 69 Ill. 495; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519; St. P. F. & M. Ins. Co. v. Johnson, 77 Ill. 598.
    Messrs. Wilkin & Wilkin, Dulaney & Golden, and Mr. J. C. Robinson, for appellee;
    that a judgment will not be reversed because of an improper instruction, if other instructions fairly present the ease, cited Warren v. Dickson, 27 Ill. 115; Elan v. Badger, 23 Ill. 498.
    Verdicts in cases of torts should not be disturbed unless they are grossly erroneous, or the result of passion or prejudice: City of Ottawa v. Sweely, 65 Ill. 434; Fish v. Roseberry, 22 Ill. 288.
    The verdict should stand, if there is evidence to support it even though the evidence might, in the opinion of this court, justify a different result: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; C. & A. R. R. Co. v. Shannon, 43 Ill. 338.
   Baker, J.

This was an action on the case for slander brought by the appellee against the appellant in the Clark Circuit Court. The venue was changed to Crawford county, where a trial was had before the judge and a jury, and a verdict returned in favor of appellee for $2,000 damages. A motion for a new trial was made by appellant and overruled by the court, and judgment was rendered upon the verdict.

The case is brought to this court by appeal, and several, errors are assigned.

The trouble between the parties seems to have grown out of a church difficulty, which difficulty ripened into a chancery suit and injunction, wherein Moore was complainant and Duncan and others were defendants. In this chancery suit appellee made an affidavit, in which he stated, among other things, that he had been acting as sexton of the church since August, 1871, and that during all that time he never, as an individual nor as sexton, refused E. B. Moore the use of the church, but always opened it and lighted it up when directed by said Moore to do so, and that during the four years E. B. Moore never furnished a stick of wood for fuel. Appellant aiterwards charged that appellee liad sworn falsely in this affidavit, and hence this suit for slander.

To the declaration filed the appellant pleaded not guilty,” and several pleas of justification averring the truth of the matter charged by him and the falsity of the affidavit; issues were formed on these pleas.

It is assigned for error that the verdict of the jury is contrary to the evidence and contrary to the law and instructions of the court, and that the court erred in overruling the motion for a new trial.

Ho point is made but that the speaking of one or more of the sets of actionable words stated in the declaration was proven. The real controversy in the case arises upon the special pleas. The court instructed the jury that the appellant, in order to prevent a recovery by the appellee, was only bound to show by a prepondez’ance of the evidence that thez’e were statements made in the affidavit, and to which the pleas applied, that were false, and that it made no difference whether Mauk knew they were unti’ue or not, and that if the affidavit sworn to by Mauk was in fact false in any one or more of its said statements, then the defense of justification was made out.

We have carefully examined all the evidence in the recoi’d bearing upon these pleas, and find that as to at least two of them the weight of the evidence is clearly and greatly in favor of appellant. Three witnesses, Samuel Busk, Hayden Dougherty and appellant, testify positively to the fact that appellant did furnish wood for the church in the fall of 1874. Hor do we regard the statement of Mr. Walmsley and of appellee that Moore furnished Wood in December, 1875, as at all in conflict with the testimony of appellant and the witnesses who support him, and more especially so when we take into consideration the statements of appellant that he furnished wood at various other times before and after the injunction.

Upon the question as to whether Mauk had ever refused Moore the use of the church, we have upon the one side the testimony of the appellee himself, corroborated, if it can be regarded as corroborated at all, but slightly by the evidence of one single witness, and upon the other side the positive testimony of Joseph Comstock and appellant, strongly corroborated by the evidence of ten other witnesses, including three witnesses introduced by appellee himself; this, even though we adopt the theory of appellee, that there is a distinction between refusing appellant the use of the church and refusing to let him have the key to get into the church. But it does appear to us that the refusal of the key under the circumstances as detailed by most of these other witnesses, was tantamount to a refusal of the use of the church, and if it is to be so regarded, then appellee is in direct conflict with some nine or ten witnesses when he claims that he never refused Moore the use of the church.

When the evidence is conflicting, courts are always loth to disturb the verdict of a jury; yet even where there is some evidence both ways, if the finding of the jury is manifestly against the weight of the evidence, the verdict will be set aside. Reynolds v. Lambert, 69 Ill. 495; St. Paul F. and M. Ins. Co. v. Johnson, 77 Ill. 598.

Even in actions ex deTÁcto, courts will interfere with the verdicts of juries in order to prevent manifest injustice. Smith v. Slocum, 62 Ill. 354; I. C. R. R. Co. v. Chambers, 71 Ill. 519.

It is also assigned for error in this case that the damages are excessive. Even if appellee was entitled to a verdict, there can be no question under the evidence in this case but that appellant believed that the affidavit was false, and that he was sincere and honest in speaking of it as false, and that the conduct and language of appellee himself engendered such honest belief. If it appears that the defendant, though he cannot fully justify, had reason to believe from the defendant’s own conduct that the charge was true, then such fact is in mitigation of damages. Sedgwick on Damages, 541.

If the pleas were unproved, yet the filing of said pleas would not be, under the circumstances of this case, proof of malice. Rev. Stat. Ch. 126, § 3; Hawver v. Hawver, 78 Ill. 412.

The fifth instruction given for appellee is complained of. That instruction is in part inartificially drawn, but as it would not probably mislead the jury, we would not reverse on that account.

We are of opinion that the verdict of the jury in this case is against the weight of the evidence, and contrary to the law and the instructions of the court, and that the damages are excessive,-and that the court erred in overruling the motion for a new trial, and in rendering judgment upon the verdict. The judgment is reversed and the cause remanded.

Reversed and remanded.

Allen, J., took no part in the decision of this case.


text:
    The St. Louis, Vandalia & Terre Haute Railroad Company v. Arthur M. Dawson et al.
    1. Service upon a corporation.—The statute provides that service may he made upon a corporation by leaving a copy of the summons with the president, secretary, etc., if either can be found in the county; if not, then by leaving a copy of the summons with any director, clerk, etc., of such company found in such county. These constitute two classes, and service upon one class is primary to service upon the other; and before service upon persons of the second class will confer jurisdiction upon the courts, it must appear affirmatively that service could not be had upon persons in the first class.
    2. What return should show.—The return of the officer should show that the president of the company did not reside in or was absent from the county; only in that contingency does the statute authorize service on an agent.
    8. Void judgment.—The return in this case not showing proper service upon defendant, the judgment is void.
    Appeal from the Circuit Court of Effingham county; the Hon. John H. Halley, Judge, presiding.
    Messrs. Gilmore & White, and Mr. John G. Williams, for appellant;
    argued that there was no proper service of the process upon appellant, and the judgment was obtained without notice or appearance, and appellant is entitled to the relief sought, and cited Owens v. Ranstead, 22 Ill. 161; McGehee v. Gold, 68 Ill. 215.
    Messrs. Wood Bros., for appellees;
    contending that the service was properly made, cited Lesher et al. v. Wabash Navigation Co. 14 Ill. 85; Hinde et al. v. Wabash Navigation Co. 15 Ill. 72; C. St. P. & F. D. L. R. R. Co. v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; R. R. I. & St. L. R. R. Co. v. Wells, 66 Ill. 321.
   Tanner, P. J.

The appellant filed his bill to restrain a constable from levying an execution which he then held, upon its property. A temporary injunction was granted, but on a final hearing of the cause the injuction was dissolved, and the bill dismissed.

It appears that the judgment upon which the writ issued was obtained against the appellant in a proceeding of garnishment, as a creditor of one Gilfoil. The appellant did not appear and resist the proceedings, which resulted in the rendition of the judgment, at any stage. The returns of the officer, indorsed upon the summons in garnishment and upon the scire facias, to make the conditional judgment final, were in these words: Served by reading and leaving a copy with C. B. Wade, agent of said company,” with the difference that the return of service upon the scire facias, styles the company the “ St. L., V. & T. H. R. R. Co.” These returns show no service upon appellant. The proceedings were had in January, 1877, and the service, in order to have given the justice jurisdiction, should have been made in conformity to the requirements of the 21 Sec. Chap. 79, B. S. 1874. It provides that incorporated companies may be served by leaving a copy of the summons with the president, secretary, superintendent, general agent, cashier or principal clerk, if either can be found in the county in which, the suit is brought. If neither shall be found in the county, then by leaving a copy of the summons with any director, clerk, engineer, conductor, station agent, or any agent of such company found in the county.

The statute of 1853, providing for service upon incorporated companies, is substantially the same as the act under which these proceedings were had. The former statute was construed in this respect by the Supreme Court in the St. L. A. & T. H. R. R. Co. v. Dorsey, 47 Ill. 289. There the court says: “The return, to have been good under the act of 1853, should have shown that the president of the company did not reside in, or was absent from the county. Only in that contingency does the statute authorize service on an agent.” In the case before us the returns of the officer are vitiated by the same fault or omission. The statute has divided the officers, agents and employees of incorporated companies into two classes, and service upon one class is primary to service upon the other, and before service had upon those of .the second class can give the courts jurisdiction, it must appear affirmatively that service could not be had upon those persons embraced in the first clastf, on account of the existence of the causes for which the statute authorizes service upon the persons embraced in the second class.

We think by reason of the similarity of the statutes of 1853, and the statutes now in force in reference to the character of service upon incorporated companies, the decision of the Supreme Court in Dorsey’s case is decisive of the one before us, and we must hold accordingly. The record presents another question of some magnitude, and upon argument a decision was pressed, but as the case must be reversed and the injunction made absolute, for the cause already mentioned, and as the rulings of the court are authority only so far as they, are directory, in cases which may be reversed and remanded for further proceedings, we deem it unadvisable to pass upon the question.

The judgment rendered against the appellant was rendered without service, and is therefore void, and the Circuit Court on the hearing should have made the injunction absolute.

The cause is therefore reversed and remanded, with directions to the Circuit Court to make the injunction absolute.

Eeversed.


author: Allen, J.

text:
    Edward Harpstrite v. H. G. Vasel.
    1. Construction oe written agreement.—A written agreement in relation to the sale of certain property excepted a mortgage of $600, the payment of which was assumed by the party promising. Held, that the exception as to the mortgage was not of the amount, but merely descriptive of the mortgage, and that an accumulation of $300 interest on said mortgage was included in the term mortgage.
    2. Set-oee.—V. & Co. executed a written agreement to S. for the payment of money, which was assigned to H. After executing this agreement, V. & Co. sued S. and her husband on an account due from S. and obtained judgment. In an action by the assignee of the agreement against V. & Co. ■Held, that the judgment against S. and her husband could not be set off.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Mr. J. H. Yager, for appellants;
    that hy pleading to a declaration after overruling a demurrer, a party waives his demurrer, cited Walker v. Welch, 14 Ill. 277; McFadden v. Fortier, 20 Ill. 509.
    A purchaser of land, receiving a warranty deed and entering into possession, cannot retain possession and lawfully refuse payment'for the land: Laforge v. Mathews, 68 Ill. 328.
    A note payable on demand is not overdue until payment has been demanded and refused: Stewart v. Smith, 28 Ill. 397.
    Mr. C. P. Wise, for appellee;
    that the verdict not being manifeotly against the weight of evidence, will not he set aside, cited Aurora F. Ins. Co. v. Eddy, 55 Ill. 213; City of Peru v. French, 55 Ill. 317; Lawrence v. Hagerman, 56 Ill. 68; Kuhnen v. Blitz, 56 Ill. 171; Ill. Cent. R. R. Co. v. Dunning, 59 Ill. 192; Walker v. Martin, 59 Ill. 348; Young v. Shorling, 60 Ill. 148; Keller v. Rossbach, 61 Ill. 342; T. P. & W. R R. Co. v. Hobble, 61 Ill. 388; Bishop v. Busse, 69 Ill. 403.
    The instrument is not negotiable, and suit cannot he maintained in the name of the assignee: Smalley v. Edey, 15 Ill. 324; Gillilan v. Myers, 31 Ill. 525; Kingsbury v. Wall, 68 Ill. 311.
    The deed given to appellee by Mrs. Schwendeman was void: Cole v. Van Hiper, 44 Ill. 58; Bressler v. Kent, 61 Ill. 426.
    Under the rule of court, the motion for new trial was made too late, and such rule must be observed: Prindeville v. The People, 42 Ill. 217.
   Allen, J.

This was a suit brought by appellant against appellee to the October term, 1877, upon the following instrument:

“ Alton, III., May 14, 1877.
“We, the undersigned, promise hereby to deliver to Mrs. Mary Schwendeman, or order, on demand, merchandise to the amount of three hundred and eighty-nine (389.20), provided she gives us full possession of property described in deed filed in Hillsboro, and' bill of sale in our hand, and further guaranteed the title and possession of the same clear, except the mortgage of ($600) six hundred dollars in favor of Mess. Harpstrite & Shlaudeman, Decatur, otherwise this agreement shall have no power and shall be void.
“ $389.20. H. G. Vasel & Co.”

Which had been assigned by Mary Schwendeman to appellants before the commencement of the suit.

The declaration contained one special count on the instrument and the common counts.

Appellee filed pleas “general issue;” 2d. Set-off that Mary Schwendeman was indebted to plaintiff on open account in the sum of $238.75; 3d. Plea of payment; 4th. Total failure of consideration, except as to $1.

Issue on pleas and trial by jury and verdict for appellee.

Motion for new trial overruled, and judgment for appellee for costs.

Several errors are assigned by appellants, but we deem it important to notice but two. The first, that the court erred in admitting improper evidence to go to the jury; second, that the verdict of the jury was contrary to the law and evidence.

The record shows that the instrument sued on was executed by appellee and his deceased partner to Mary Schwendeman, in part consideration of the sale of a house and lot in Hillsboro, sold by her to appellee; that the title was in her; that she executed warranty deed to appellee, and that appellee took possession under de’ed, and that he has peaceably enjoyed possession ever since.

Appellee set up as a ground of partial failure of consideration that he had bought the property mentioned in deed and referred to, and some chattels amounting to $100, in value, of Mary Schwendeman; that the entire consideration was $1,300; that this instrument sued on was for a balance due on the purchase after deducting an account which she was owing him of $203.75; another note which he gave at the same time for $100, taxes paid ($7.05), and $600 to ' be paid on mortgage on property described in deed, amounting in all to the sum of $1,300, and insists that the consideration has failed in this: that he was to have the house and lot free from all incumbrances by the terms of the contract, except $600, the amount of mortgage on the same; and that he, by the terms of the contract, was not liable to pay any interest that had accrued or might thereafter accrue on the mortgage; that $300 interest had accrued on mortgage and was an incumbrance on the land, and that herein the consideration had failed, except as to the $1, and that the chattels were purchased at same time the house and lot was purchased.

On the other hand, it is insisted that the purchase price of the house and lot was $1,300, and that the personal property bought at same time was $100, altogether $1,400, and that appellee was to lift the mortgage of $600 on the house and lot. A bill of sale of the personal property was taken by appellee from Mary Schwendeman and her husband for the personal chattels, dated May 7, 1877, for the consideration of $100. The consideration expressed in the deed, made on a different date, is. $1,300.

Anton Schwendeman, husband of Mary, testified that he made the contract, and that the true consideration in the deed was $1,300; that the personal goods were $100, making total, $1,400; that at the time deed was made there was about $100 interest due on mortgage, and that when trade was made appellee assumed to pay the mortgage and interest, and that the $600 and $100 interest was deducted from the price of land and personal property.

Anton Schwendeman is corroborated in his statement, both by the deed and bill of sale, so far as the consideration expressed in them is concerned, and we think appellee has not sustained his plea of partial failure of consideration, either as to interest accrued on the mortgage or as to the real consideration for the sale of house and lot and personal property.

As to appellee’s set-off for goods furnished Mary Schwendeman after the instrument sued on was made by appellee, it is sufficient to say that appellee, in his testimony, admits that for those items of goods furnished Mrs. Schwendeman he had sued her and her husband jointly, and had obtained a judgment against them, so that his debt was, before the commencement of this suit, merged in judgment. If so, then no action could be maintained on this account, nor could her account be set-off in a suit against him. ■ Warren v. McNulty, 2 Gilm. 35; Wayman v. Cockran, 35 Ill. 152; Runamaker v. Corday, 54 Ill. 103.

This suit was wrongly brought, but we have in furtherance of justice regarded it in the light in which it was tried by both parties in the circuit court.

The written contract says, “ except the mortgage ($600) six hundred dollars in favor of Mess. Harpstrite & Schlaudeman, Decatur,” thus specifically pointing out and identifying the incumbrance that was excepted. The contract did not specify the interest of that mortgage or the principal of that mortgage, as being exceeded, but it designated the mortgage, and the mortgage included the whole mortgage, both principal and interest.

The court instructed the jury for appellee, that if they believed from the evidence that appellee gave the agreement sued on, agreeing by said agreement to pay said $389.20 in merchandise if the incumbrance upon the land did not amount to more than $600; then, if the jury also believed from the evidence that instead of being only $600 due on the mortgage on said land, there was due in addition, as interest, the sum of §102.60, then that appellee was entitled to a credit of $102.60, the court thus informing the jury that this written agreement was in effect a guarantee that the incumbrance upon the land did not amount to more than $600. We do not so interpret it, and in our opinion the court erred in giving the instruction indicated.

We regard the verdict of the jury as manifestly wrong; that the court erred in giving the instruction indicated, and in not granting a new trial, and in rendering judgment for appellee.

This cause is reversed and remanded.

Reversed and remanded


text:
    James H. Wilson, Receiver, v. Herman G. Weber.
    1. Motion to dissolve injungtion—Affidavit fob continuance.— An affidavit for continuance of a motion to dissolve an injunction should “satisfy ” the court, that the whole or some material part of the answer is untrue; that the complainant has testimony by which he can prove it to be untrue; and that since the coming in of the answer he has had no opportunity to procure such testimony. These requirements are not met by a mere negation; the court must be satisfied of the existence of these several facts, the names of witnesses, etc.
    2. Enjoining collection of tax—Payment of legal tax.—A person seeking to enjoin the collection of a tax on the ground that a part is unauthorized, should show by his bill, as nearly as possible, what part is just and what part unauthorized; and he should be required as a condition of relief to pay such amount as is just.
    3. Dismissing dill without a final hearing.—Where the allegations in a bill are such, that if established, relief would be granted, the bill should be retained until a final hearing is had, and it is error to dismiss the same on a motion to dissolve the injunction. ,
    4. Assessment of damages—Fees for attorney-general—Facts on which allowance is made.—The solicitors for the defendants were the Attorney-General and State’s Attorneys of the several counties whose collectors were restrained. Held, that so far as shown, those officers were rendering ex-officio service, and an allowance for such service finds no warrant in the statute. A failure to show in the record the testimony upon which the allowance was made, is fatal to the decree assessing damages.

      Appeal from the Circuit Court of St. Clair county; the Hon. ¥m. H. Snydee, Judge, presiding,
    Mr. Blueobd Wilson and Mr. J. M. Hamill, for appellant;
    That the offer of complainant to prepare sufficient affidavit for continuance was within the requirements of the statute, and the court should have granted a continuance, cited Rev. Stat. 1874, Chap. 69, § 18; Shirwin v. The People, 69 Ill. 58; Cole v. Choteau et al. 18 Ill. 441; St. L. & S. E. R’y Co. v. Teters, 68 Ill. 146.
    Illness of counsel is good cause for continuance: Jarvis v. Sherlock et al. 60 Ill. 379.
    It is improper to allow evidence contradicting an affidavit for continuance: Supervisors Fulton County v. M. & W. R. R. Co. 21 Ill. 368; Wick v. Weber, 64 Ill. 168.
    Where answer and replication have been filed and the cause is heard on the pleadings without proof, it is error to dismiss the bill: Cummins v. Cummins, 15 Ill. 34; Parkinson v. Truesdale, 3 Scam. 370; Davis v. McVickers, 11 Ill. 327; Hummert v. Schwab et al. 54 Ill. 147; Brockway v. Rowley et al. 66 Ill. 99.
    It was error to dismiss the bill on motion to dissolve the injunction: Maher v. Bull, 39 Ill. 538; Parkinson v. Truesdale, 3 Scam. 370.
    Hnder the prayer for general relief a court of chancery may decree that which is not specifically prayed for: Isaacs v. Steel, 3 Scam. 97.
    The county clerk cannot add delinquent real estate tax to the tax on personal property: Bev. Stat. 1874, Chap. 120, §§ 129, 229, 172, 188, 182, 185, 190, 191, 194, 195, 197, 199, 203, 226.
    An injunction will be granted to restrain the collection of a tax fraudulently levied: Viele v. Thompson, 77 Ill. 625; Town of Lebanon v. O. &. M. R’y Co. 77 Ill. 539; McConkey v. Smith, 73 Ill. 314; C. B. &. Q. R. R. Co. v. Cole, 75 Ill. 592.
    Where it is impossible to distinguish the legal from the illegal tax, the whole should be enjoined until evidence can be taken upon that point: Taylor v. Thompson, 42 Ill. 17; Briscoe v. Allison, 43 Ill. 296.
    As to the power of the collector to distrain'for personal taxes: Bev. Stat.-1874, Chap. 120, § 137; Laws of 1873, 45, § 1.
    There is no lien upon real property for the tax levied on personal property: Schaeffer v. The People, 60 Ill. 181; Parks v. Miller, 48 Ill. 364.
    An answer in chancery should state facts and not conclusions of law: 2 Daniel’s Ch. Pr. 814; Stone v. Moore, 26 Ill. 172; Craig v. The People, 47 Ill. 493.
    The revenue law relating to assessment of capital stock is limited to companies created under the laws of this State: W. U. Tel. Co. v. Leib, 76 Ill. 172.
    Consolidation of companies organized in different States does not constitute the same legal entity in both States: O. & M. R’y Co. v. Wheeler, 1 Black. 247; R. & M. R. R. Co. F. L. & Tr. Co. 49 I ll. 331; So. Car. R. R. Co. v. Charleston, 2 Otto, 667; Central R. R. Co. v. Georgia, 2 Otto, 665.
    Laws imposing taxes are strictly construed in favor of the taxpayer: Dwarris on Statutes, 742; Cooley on Taxation, 202; United States v. Wigglesworth, 2 Story, 369; Chestnutwood v. Hood, 68 Ill. 132.
    The capital stock tax is not a tax upon shares of stock, but upon the property of the corporation: State Tax on Railroad Cases, 2 Otto, 575; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292; C. B. & Q. R. R. Co. v. Cole, 76 Ill. 591.
    The jurisdiction of the taxing power is limited to persons and property within the limits of the State: Cooley on Taxation, 15; State Tax on Foreign-held bonds, 15 Wall. 300.
    A tax upon the property of .a company by valuation cannot be sustained: Delaware Railroad Tax Case, 18 Wall. 207; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561.
    A tax assessed upon property exempt from taxation may be restrained by injunction: C. B. & Q. R. R. Co. v. Cole, 76 Ill. 591.
    What property is subject to assessment is a matter of law, and the assessor has no discretion: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292.
    The listing and valuation must be made in the manner and within the time required bylaw: Blackwell on Tax Titles, 106; Cooley on Taxation, 256; Town of Lebanon v. O. & M. R’y Co. 77 Ill. 541; Marsh v. Supervisors Clark County, Cent. Law Jour. Dec. 14, 1877, 509; Schuttler v. Fort Howard, 6 Cent. Law Jour. 68.
    The court erred in assessing damages and awarding $800 attorneys’ fees to the Attorney-General and State’s attorneys: Constitution, Art. 5, §23; Eev. Stat. 1874, Chap. 53, §1.
    Evidence as to assessment of damages on dissolution of the injunction must be preserved in the record: Hamilton v. Stewart, 59 Ill. 331; White v. Pearce, 47 Ill. 415.
    The damages are grossly excessive: Terry v. Hamilton School, 72 Ill. 478; Jevne v. Osgood, 57 Ill. 346; Elder v. Sabin, 66 Ill. 128; Collins v. Sinclair, 51 Ill. 330.
    Mr. James K. Edsall, Att’y-Gen., for appellee;
    that the motion for continuance was properly overruled, it being a matter resting in the discretion of the court, and there being no affidavit filed in support of it, cited Eev. Stat. 1874, 581, § 18; Vickers v. Hill, 1 Scam. 307; Mitchell v. Chicago, 40 Ill. 174; Woodruff v. Tyler, 5 Gilm. 458; Harmison v. Clark, 1 Scam. 131; Smith v. Powell, 50 Ill. 21.
    After replication is filed the cause is deemed at issue and stands for hearing: Rev. Stat. 1874, 201, § 29; Gregg v. Brown, 67 Ill. 526.
    When a cause is heard upon bill, answer and replication, only such portions of the bill as are admitted by the answer can be taken as true: Harris v. Reeve, 5 Gilm. 131; Selby v. Geines, 12 Ill. 69.
    And where the answer denies the allegations of the bill, they must be supported by proof: DeWolf v. Long, 2 Gilm. 679; Trenchard v. Warner, 18 Ill. 142; 1 Barb. Ch. Pr. 141; Munson v. Miller, 66 Ill. 380; Thomas v. Adams, 59 Ill. 223.
    The action of the State Board of Equalization in assessing the capital stock, property and franchises of appellant was valid: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292; Ottawa Glass Co. v. McCaleb, 81 Ill. 556; State Railroad Tax Cases, 2 Otto, 575; Huck v. C. & A. R. R. Co. Sup. Ct. Ill. 1877; C. B. & Q. R. R. Co. v. Siders, Sup. Ct. Ill. 1877.
    The Statute makes it the duty of the State Board to assess the rolling stock, track, etc., in the various counties along the line of the road, and the Board assumed to assess property within its jurisdiction. There was no such irregularity as would warrant the intervention of a court of equity: Rev. Stat. 865; Cook county v. C. B. & Q. R. R. Co. 35 Ill. 460; Jenks v. Board of Supervisors, etc. 65 Ill. 271.
    Complainant should have shown what part of tax, if any, was legal, and tendered payment of the same: Merrill v. Humphrey, 34 Mich. 170; State Railroad Tax Cases, 2 Otto, 616.
    The assessment of damages on dissolution of the injunction having been made after the bill was dismissed and appeal prayed, the appeal from the decree dismissing the bill does not bring up this subsequent order: McWilliams v. Morgan, 70 Ill. 551; Freeman v. Freeman, 66 Ill. 54.
   Tanner, P. J.

This was a suit in equity, instituted in the Circuit Court of St. Clair county. A temporary injunction was granted, by which the collectors of revenue in the several counties named in the bill were restrained from distraining and selling the personal property belonging to the St. Louis and Southeastern Bailway company (consolidated) for certain taxes assessed and levied against its real and personal jrroperty for the years 1873 and 1874. On the 24th day of October last an answer was filed to the bill and a motion was entered to dis- ¡ solve the injunction. The motion was set down for hearing on' the 31st day of the same month, by order of court. When the day arrived for hearing, and the motion was called up, the solicitor for the company moved to continue the motion to dissolve the injunction, and proposed to prepare and immediately present an affidavit showing that certain material parts of the defendant’s answer were untrue, and also that he had testimony which would disprove all the material parts of the answer speeified, which he could produce at the next term of the court, or at an earlier day; and that he had no opportunity to procure such testimony since the coming in of the answer. And further, that the senior counsel of the railway company, and who had drawn the bill for the injunction, was unable to be in court by reason of sickness in his family. On this statement the court refused to continue the motion to dissolve the injunction, but a hearing was then had on the motion, the injunction was dissolved, and the bill dismissed. A suggestion of damages was then filed, and the court, after hearing evidence touching the 'same, decreed that the defendant in the suit have and recover $800 for attorneys’ fees.

The railway company brings the case to this court, and assigns the following errors: First, the court erred in overruling the motion for a continuance, and urges with much earnestness that in offering to present the affidavit, in support of his motion for a continuance, the company brought itself within the provisions of section 18, chapter 69, R. S. 1874. This section provides: “ If, after a motion is made to dissolve an injunction the complainant in the bill will satisfy the court by his own affidavit, or that of any disinterested person, that the answer or any material part thereof (to be specified in such affidavit) is untrue, and that he has testimony which will disprove the answer, or such material part thereof, which he can produce at the next term of the court, or at an earlier day, and that he has had no opportunity to procure such testimony since the coming in of the answer, the court may grant a continuance of such motion until the next term, or until such testimony can be produced.”

It is insisted on behalf of the appellant that under the rulings of the Supreme Court in Cole v. Choteau, 18 Ill. 441; Shirwin v. People, 69 Ill. 58, and The St. Louis and Southern Railway Company v. Teters, 68 Id. 146, a continuance of the motion to dissolve the injunction was imperative upon the Circuit Court. These authorities hold that in applications for continuances, where parties bring themselves clearly within the provisions of the statute, a denial of the right would be error. The soundness of this view cannot be questioned, but the inquiry is, did the appellant bring itself within the rule laid down by these authorities; or, rather, did it bring itself within the provisions of the aforementioned statute? The answer to this inquiry must be drawn from the facts presented by the record.

It appears the appellant was actually present in court when the motion was ¡entered, and the time for its hearing fixed by order of the court; and therefore could not have been surprised at its call for hearing. The answer of the appellees had been on file, and the motion to dissolve known to the appellant one week before its hearing and the dissolution of the injunction. When the solicitor for the appellant asked for time to prepare and file an affidavit in support of his motion, he did not give or attempt to give any cause for not having his affidavit ready. But he insisted that he had a right to claim the indulgence of the court for this purpose for the space of one-half of an hour, under a rule of the court, which is as follows: “ After a case is called for trial, thirty minutes shall be allowed to prepare and file an affidavit for a continuance unless under special circumstances, to be judged of by the court. Whenever time is asked and given to prepare an affidavit for continuance, the case shall not lose its place for trial.” This rule, even if it should be thought applicable to motions of this nature, does not necessarily suspend the power of the court to require litigants to proceed to trial at once upon the call of the docket. Under special circumstances the court may refuse to allow the time ordinarily given by the rule. This right is reserved in the rule, and nothing short of an unwise and oppressive administration of it can give cause for complaint. The appellant, however, insists that this was done in this case. That “ by offering to immediately prepare and file an affidavit,- showing that all the material parts of the defendants’ answer were untrue,” it was simply exercising a right conferred by the 18 Sec. Ohap. 69, It. S.

This assumption must rest upon two grounds: first, that the appellant had not by laohes forfeited the right to delay the motion; and, second, that the proposition embodied all that the statute required in such an affidavit. We think the first gro und was wholly swept away by the facts already noticed, but nevertheless, we will briefly notice the second. The affidavit required by the statute before cited must “ satisfy” the court, first, that the whole or some material part of the answer is untrue; second, that the complainant has testimony by which he can prove it to be untrue; and third, that since the coining in of the answer he has had no opportunity to procure such testimony.

These exactions of the statute are not answered by simply negativing the truth of the allegations of the answer, and affirming the existence of testimony by which they can be disproved, and a want of opportunity since the coming in of the answer to procure such testimony. The court must be satisfied of the existence of these several facts before a continuance of the motion can be allowed. How can conviction be wrought in the mind of the court without a presentation of facts? The solicitors of appellant did not state to the court by what character of evidence he expected to disprove the answer, or where it existed—whether any and what portions were matter of record; what part, if any, was to be established by witnesses, their names and residence. Heither did he state any facts by which the court could become satisfied that no opportunity was given after the coming in of the answer to procure such testimony. The rule in regard to an application for the continuance of a motion to dissolve an injunction is not less rigid than the rule at law. Smith v. Powell, 50 Ill. is in point.

The statement of the appellant was not sufficient if it had been offered in the form of an affidavit, as it did not present any facts to satisfy the court, as the statute requires. Again, the appellees were restrained from collecting the public revenue for the years 1873 and 1874, in all the counties through which the appellant’s railroad passes, while they admitted a liability to pay a portion of the taxes, the collection of which was enjoined; and alleged only as a reason why payment had not been made, that “ the tax assessed on the real estate of the company for the years 1873 and 1874, in the several counties, is so mixed and confounded with the tax on personalty, that it is impossible to discriminate between them, and determine the amount extended against the real estate.”

The bill, however, does not allege facts which, to our minds, show that it was impossible to determine the amount of taxes to be paid by the company on its real estate. If this fact can be determined by the court on a hearing of the cause, it would be determined by proof; but the bill does not allege any reason why the facts which would amount to such proof were not attainable without the aid of the court. A property owner seeking to enjoin the collection of taxes, on the ground that a part is unauthorized, should show by his bill, as near as may be practicable, what part is just, and what is unjust and unauthorized, and he should pay to the proper officer that part which he concedes to be properly chargeable against him. And where he seeks to enjoin the collection of taxes under such circumstances, he must be required, as a condition of relief, to pay such amount as is just. Merrill v. Humphrey, 24 Mich. 170; Railroad Tax Cases, 93 U. S. S. C. R. 616; Mills v. Johnson, 17 Wis. 598; Taylor v. Thompson, 42 Ill. 10. The principle in the authorities enunciated, lies at the threshold of a court of equity. The force of these authorities is fully appreciated by the appellant, and the rule they establish not denied. But it is persistently urged that the bill presents a case not within the rules. We cannot think so. The court, on the hearing of the motion to dissolve the injunction, had the right to look into the bill in this regard, in connection with all the facts presented by the record; and in denying to appellant time to prepare and present an affidavit as proposed, and in dissolving the injunction, did not indiscreetly exercise its power, in view of the provisions of the statute and the rule of court cited.

It is also insisted that it was error to dismiss the bill upon the dissolution of the injunction. The record does not, as stated by appellees, show that the issues presented by the bill and answer were submitted to the court at the time the motion to dissolve the injunction was heard. The decree recites: “ And the cause coming on to be heard upon complainant’s bill, answer and replication thereto, upon a motion to dissolve the temporary injunction heretofore granted, and the court being now fully advised in the premises, it is ordered, adjudged and decreed that the injunction be, and is hereby, dissolved, and the complainant’s bill dismissed at his cost.” This decree does not show that the cause was submitted, and to be heard upon bill, answer and replication, with the motion to dissolve the injunction. The bill was not framed wholly with a view to obtain an injunction. It also alleges, among other things, that the board of equalization, in assessing the capital stock of appellant, included some proportional part of the franchises of the corporation as vested in it by the legislatures of Indiana, Kentucky and Tennessee. That said board added together the market or fair cash value of the consolidated capital stock, and the market or fair cash value of the consolidated debt, excluding current expenses, and from the aggregate amount so obtained, deducted the amount of the tangible property, and took the amount remaining to be the fair cash value of the capital stock, including the franchise; thereby including the value of the franchise, not only in Illinois, but in Indiana, Kentucky and Tennessee, and the tangible property in the same States, and the value of the debt (excluding current expenses) in the same States.

If these allegations are true, property not subject to taxation in Illinois have been made the subject of taxation by the board of equalization. Hence, although the preliminary injunction was properly dissolved, yet upon a final hearing, if these allegations should be established, relief would be granted, and, if necessary, a perpetual injunction awarded. The appellant may, from laches, or other causes, have been unable to procure a continuance of the motion to dissolve the injunction, yet upon the call of the cause for trial, may have been ready to sustain his bill by proof.

These allegations would seem to bring the appellant within the jurisdiction of a court of equity, and demand relief, according to the case of the Chicago, Burlington and Quincy Railroad Company v. Cole et al, 75 Ill. 591. Hence, the bill should have been retained until a final hearing. This rule of chancery practice is so well settled that a reference to the authorities by which it is established is unnecessary.

It is further urged that the court erred in assessing damages to the appellee of $800 for solicitors’ fees. The solicitors were the Attorney General and the State’s attorneys of the several counties whose collectors were restrained. These solicitors were, so far as is shown by the record, rendering ex-officio service and an allowance for such service finds no warrant in the statute. And further, the record fails to furnish the testimony upon which the allowance was made. This omission is fatal to the decree assessing damages. Hamilton v. Stewart, et al. 59 Ill. 331; White et al. v. Pearce et al. 47 Ib. 415. We are of opinion the Circuit Court erred in dismissing the bill, and in allowing the appellees $800 as fees for the services of the Attorney General and the several State’s attorneys, and also in rendering a decree against the appellants for all costs. For these several errors the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Illinois and St. Louis Railroad and Coal Company v. Fridolin Decker.
    1. Trespass—Measure of damages—Loss of profits.—In actions of tort, where the amount of profits of which the injured party is deprived as a legitimate result of the trespass, can he shown with reasonable certainty, such profits, to that extent, constitute a safe measure of damages, and so far as they are plainly traceable he should receive compensation for them; but such damages must be the necessary and natural consequence of the act. Profits which are merely probable and speculative cannot be recovered.
    2. Prospective profits as damages—Rule in estimating.—Where it is sought to recover for the loss of profits in any trade or business, the evidence must afford the jury some data from which they can with reasonable certainty determine the loss of profits. No fixed, certain guide for estimating such damages can be established.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Messrs. Koebneb & Tubneb, for appellant;
    contending that trespass is the remedy for injuries, committed by force, cited 1 Chitty’s PI. 143; 1 "Waterman on Trespass, 1; 3 Blackstone’s Com. 123.
    Damages of a speculative character cannot be recovered: Green v. Williams, 45 Ill. 206; Cilley v. Hawkins, 48 Ill. 308; Olmstead v. Burk, 25 Ill. 86; Williams v. Chicago Coal Co. 60 Ill. 149.
    Mr. Jambs M. Dill and Mr. W. C. Kueffner, for appellee;
    that a recovery can be had for probable profits, cited Chapman v. Kirby, 49 Ill. 219; Benton v. Fay, 64 Ill. 422.
    An erroneous instruction is not ground for a reversal if the evidence shows that the verdict was right. Hall v. Sroufe, 52 Ill. 421; 49 Ill. 451; 56 Ill. 22.
    The trespass was willful and the jury were -warranted in giving punitive damages. Johnson v. Kamp, 51 Ill. 220.
   Tanner, P. J.

The appellee brought an action of trespass in the St. Clair Circuit Court, and averred in his declaration that he leased from the appellant a certain house situated on the bank of the Mississippi river for the period of one year, beginning on the. 1st day of April, 1876, for the sum of $600. That the appellant reserved from the lease two rooms of the house for passenger rooms. That he took possession of the house in accordance with the terms of the lease, and put therein a lot of furniture, saloon fixtures, wines and liquors, of the aggregate value of $1,000, and kept a saloon until tire committing of the grievances alleged. That on the 10th day of April, 1876, and until the institution of the suit, the appellant was the owner of a steam ferry-boat on the river aforesaid; and that on that day, with force of arms, drove and propelled said boat against the house of appellee with great force and violence, and thereby caused said house to fall into said river; by which his property was lost and destroyed and his business broken up. That at the time his profits amounted to $200 per month, and would have been worth that sum per month until the end of his lease. To this declaration the plea of not guilty was interposed, issue joined thereon, the cause submitted to a jury, and a verdict returned in these words: “We, the jury, find for the plaintiff, and assess his damages for his loss of property and his loss of profits for the unexpired term of his lease, at $700.”

The appellant moved the court for a new trial. The motion was overruled and judgment rendered against him for the amount of the verdict, and the case is brought to this court by appeal.

The errors assigned are:

1. The admission of improper testimony in behalf of appellee.

2. The exclusion of proper testimony offered on the part of the appellant.

3. The giving of improper instructions to the jury in behalf of the appellee.

4. The refusal to give instructions asked by the appellant. We think an examination of the first and third alleged errors will dispose of the cause.

The appellee was introduced as a witness, and after he had testified that he leased the building from appellant for one year at fifty dollars per month; that he took possession according to contract on the 1st day of April, 1876, and kept a saloon for the sale of liquors in the house until the 5tli of May, following, and the value of liquors and other property destroyed by the alleged tortious acts of appellant, he was asked: “What were your profits, as far as you had gone, per month, clear from all expenses?” he replied that he made about $75 the first month. To this question and the answer the appellants made objections, but the court overruled the objections and permitted the testimony to go to the jury.

The latter clause of the first instruction given on the part of the appellee is as follows: “And the jury may allow such further sum as they believe from the evidence the plaintiff would probably have realized as profits from said business during the remainder of the term.”

From a careful consideration of the doctrine upon which this evidence was conceived to be admissible, we have not been able to coincide with the Circuit Court. The rule as laid down in Chandler v. Allison, 10 Mich. 460, seems now to be well established, and is so well expressed that we adopt the language of the court: “It may now be assued to be the general rule that in actions of tort, where the amount of profits of which the injured party is deprived as a legitimaté result of the trespass can be shown with reasonable certainty, such profits to that extent constitute a safe measure of damages, and so far as it is plainly traceable he should make compensation for it. To this extent the recovery of a sum equal to the profit lost, while plainly within the principle of compensation, is also within the limits which excludes remote consequences from the scale in which the wrong is weighed.”

The Supreme Court of our own State, in Green v. Williams, 45 Ill. 206, which was an action for breach of covenant, brought by a lessee against a lessor, the court remarks: “The plaintiff is entitled to recover all expenses necessarily incurred by her in consequence of the defendant’s refusal to give possession; but she is not entitled to profits that she might have made by conducting her business on the demised premises; such damages are remotej speculative, and incapable of ascertainment. The case of Cilley v. Hawkins, 48 Ill. 308, was very similar to this, and the same rule was there announced. The case of Benton v. Fay & Co. 64 Ill. 417, was an action for a breach of contract by the non-delivery of mill machinery which occasioned the mill to remain idle. The court, in awarding a new trial, directed the Circuit Court to receive no evidence, on another trial, of probable profits, as they would be purely speculative. The case of Chapman v. Kirby, 49 Ill. 24, relied on to justify the rulings of the court in the case at bar, was an action on the case brought to recover damages for the wrongful withdrawal of steam power from the machinery of the plaintiff. The use of the power was to be continued by the contract for five years, and it had been enjoyed for three years when the wrong complained of was done; on the trial the court instructed the jury “that, if they found for the plaintiff, in estimating his damages they could consider the nature and extent of his business at the time the power was withdrawn, the amount of business he had done during the six months previous.” This instruction was approved by the Supreme Court, in the following language: This was an action on the case, and not on contract. In all actions of tort, the amount of damages sustained, and in case, all of the consequential damages sustained, connected with or flowing from the act complained of by the plaintiff. But the damages must be the necessary and natural consequence of the act. They must be real, and not merely speculative or probable. And <^f what does this loss consist but of the profits that would have been made had the act not been performed by appellants? and to measure such damages the jury must have some basis for an estimate, and what more reasonable than to take the profits for a reasonable period next preceding the time when the injury was inflicted?”

From the rule as established by the authorities above cited we reach the conclusion that while in actions of tort the plaintiff is entitled to recover for all damages suffered, yet where it is sought to recover for the loss of profits in any trade or business, the evidence must afford the jury some data from which they can with reasonable certainty determine the loss of profits. The rules of law do not, and perhaps cannot fix any certain guide for the estimate of such damages; and hence the courts can but at best approximate a correct standard. The most reliable authorities agree with our court in Chapman v. Kirby, that a recovery cannot be had for profits which are merely probable or speculative.

The question then arises: When are profits probable or speculative, and at what point, or more accurately speaking, upon what character of evidence do they lose the quality of being probable and speculative, and become sufficiently certain to constitute a basis upon which they can be calculated ? In Chapman v. Kirby, the owners of the planing mill had been in the use of the steam power and engaged in their trade and business over three years; and this we think ample time to establish a settled course of business, from which they, plaintiffs, could very readily establish, by proof, a reasonably certain measure of profits, by the month or by the year. The court, in order to arrive at the prospective profits, instructed the jury that to determine this they might take into consideration the extent of the plaintiff’s business for six months next preceding the commission of the injury. This ruling of the court was without doubt sound, both upon the authority of well adjudicated cases, and upon reason. In the case at bar the appellee was engaged in keeping a liquor saloon. The lease was to continue for twelve months, and the appellee enjoyed it for one month, and for this period of time his profits were about $75. From the profits of one month—one-twelfth part of the time—the jury were told, by the admission of this testimony, they might calculate profits for the eleven succeeding months. Distinct periods of time are not and cannot be taken, in this case, by which comparisons can be made.

A month is adopted as a standard where but one has elapsed. Certainly this could not be adopted as a measure which could with reasonable certainty guide the jury in the calculation of profits. The law, while being administered by the courts for the redress of wrongs, must not be made an instrument for the infliction of wrong. While tort feasors should be made to respond in damages to the full extent of their wrongs, some reasonable standard must, at least, be approximated for their ascertainment. They ought not to rest merely in conjecture and probability. Any rule less accurate than this would convert the law into an engine of wrong and oppression.

The testimony in regard to profits should not have gone to the jury.

The next assignment of error which we shall notice is the giving of the instruction in reference to probable profits. The jury were told that in assessing damages they could take into consideration such profits as the appellee would have probably realized from his business if he had been permitted to carry it on to the extent of Ms lease.

This instruction sent the jmy into the fields of conjecture and speculation to determine the amount of damages they should give appellee. This rule has not only no warrant in law, but is in direct antagonism with both the text-writers and the adjudications of our own Supreme Court. Sedg. on Dam. 82; Shear. and Redf. on Neg. sec. 599; Chapman v. Kirby, supra; I. B. & W. R. R. Co. v. Barney, 71 Ill. 391. But, should we' be considered as trenching upon the rights of the jury in holding that the Circuit Court erred in admitting the testimony in reference to profits, still it is clear that the cause must be reversed for this instruction given to the jury.

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

¡Reversed and remanded.


text:
    Milican Arnold et al. v. Elizabeth Franklin.
    1. Promissory note—Want of consideration—Gift.—A note executed and delivered as a gift, is without a valuable cunsideration, and will not support an action either at law or equity.
    2. Service of child after majority.—The mere fact that a child lives with her parents after reaching majority, raises no obligation to pay for services thereafter rendered as a member of the family, and such services cannot be presumed to constitute a consideration for a note given long after.
    Error to the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding. "
    Messrs. Hagle & Finch, for plaintiffs in error;
    that the note , was simply a gift and cannot be enforced, cited 1 Parsons on Contracts 201; 2 Kent’s Com. 618; Pope v. Dodson 58 Ill. 360; Blanchard v. Williamson, 70 Ill. 652.
    Even if given for services rendered long before, it is an imperfect gift; the intention of the father was never carried into effect, and his estate is not liable: Freeman v. Freeman, 65 Ill. 106.
    The husband was not a competent witness in favor of his wife: Rev. Stat, 1874, 488; Crane v. Crane, 81 Ill. 165.
   Tanner, P. J.

This cause was submitted to a jury at the October term, 1877, of the Clay Circuit Court.

The appellee sought to recover against the executors of the last will and testament of Carter Arnold, deceased, the amount of a promissory note executed by the testator, on the 8th day of November, 1876, for $200, and payable one day after date, for value received.

The jury returned a verdict for appellee, and assessed her damages at $211.30. The appellants moved for a new trial, but the court overruled the motion and rendered judgment upon the verdict in favor of the appellee and against the appellants for two hundred and eleven dollars and thirty cents and costs. The appellants bring the cause to this court by appeal, and .assign for error the giving of an improper instruction to the jury on behalf of the appellee, and the refusal to give the third instruction asked for on behalf of appellants. That the verdict of the jury" was against the evidence, and a new trial should have been given to the appellants.

All these assignments of error we think are well taken. The evidence upon which the judgment rests is as follows:

General Howard Franklin testified: Know the parties; knew Carter Arnold in his lifetime. He was my mother’s father. (Note handed to witness, and he asked about the execution thereof.)

Grandfather was at our house the day of the last presidential election, and staid over night; at about four o’clock the following day, while I was at the barn, he (Carter Arnold) called me to the house. I went. He was sitting on the bed (being in poor health), and my father and mother were in the room, Grandfather said he wanted me to write him a note. He dictated the note and I wrote it. He told me to sign, his name to the note, and I did so, and he made his mark.

On cross-examination stated: Do not know of grandfather getting anything for the note.

Note offered in evidence and read to the jury:

“ November 8, 1876. I promise to pay Elizabeth Franklin the sum of two hundred dollars, due one day after date, for value received.
'“Carter Arnold.”

William J. Franklin testified-: “Am the husband of plaintiff.” Witness objected to by defendant as incompetent. Objection overruled; exceptions taken. Witness then testified: “ Carter Arnold came to onr house the day of last presidential election; staid over night. The next day in the afternoon, the old man said he wanted to give Elizabeth something, but that he did not then have any money by him, but he would give her a note for $200. She said, ‘ Bo, father, you need not mind doing that.’ He replied, ‘Tes I will;’ and he went to the door, called my son in, told him to write a note. He asked, ‘What for?’ The old man made no reply. He then dictated and my son wrote the note, and he handed it to her (plaintiff). He did not say for what purpose he wanted to give her the $200; My wife, the plaintiff, staid at home with her father after she was of age, until she was twenty-five years old, before she and I were married; that was some twenty odd years ago.”

Upon this evidence the court gave, against the objection of the appellants, to the jury the following instruction: “The court instructs the jury, that if you believe, from the evidence, that the deceased, Carter Arnold, gave the note in question in consideration of services rendered by his daughter before marriage, you should find for the plaintiff, and assess her damages at the amount of the note with interest at six per cent, from due.”

The appellants then asked the court to instruct the jury, “ that the mere fact that the plaintiff resided with her father after she was of age does not make him liable for her services during such time, unless the proof shows that it was in pursuance of a contract or at his request.”

This instruction was refused, and the appellants excepted to the ruling of the court. The evidence fails to establish a contract, either express or implied, to pay for services rendered by appellee to the deceased. There is no evidence tending to show an express agreement to pay for services, and the mere fact that a child lives with parents after reaching majority raises no obligation to pay for services thereafter rendered as a member of the family, and therefore such services cannot be presumed to constitute a consideration for the note in suit. Freeman v. Freeman, 65 Ill. 106.

The testimony shows clearly that the father desired to make a gift to the appellee of money, but having no money on hand he executed and delivered the note as a gift. The note therefore was executed and delivered without a valuable consideration, and will not support an action either in law or equity. 2 Kent, 438; 2 Pars. B. & N. 54; Blanchard v. Williamson, 70 Ill. 652.

The court erred in giving the instruction for appellee, and refusing to give the third instruction asked for by appellants, and should have set aside the verdict of the jury and allowed a new trial.

For the several errors indicated the judgment of the Circuit Court must be reversed and the cause remanded.

Beversed and remanded.


text:
    Jacob B. Reutchler, use, etc., v. August C. Hucke.
    1. Set-off.—Defendant claimed a set-off against plaintiff’s claim, for taxes paid by him at the request of plaintiff, but it not appearing that the defendant had paid the taxes, in any manner, or that he had become legally liable therefor, the set-off should not have been allowed.
    2. Agreement to pat taxes of another.—On grounds of public .policy no arrangement can be made between the collector and property owner, whereby the owner, or the property, can be discharged from liability by merely marking the taxes paid on the tax books.
    3. Set-off against agent.—Where one deals with an agent, knowing the agency, he cannot set off a claim due him from the agent against a debt due the principal.
    Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for plaintiff in error;
    that the defendant could not be allowed a set-off for taxes which he had not paid—only promised to pay—cited Pitzer v. Harman, 8 Blackf. 112.
    An obligation to pay is not the same as actual payment, though in some cases the giving of negotiable paper has been so considered: Smalley v. Edey, 19 Ill. 207; Cunning v. Hackley, 8 Johns. 202.

      Where one deals with an agent, knowing his agency, he cannot set off a claim due him from the agent, against a debt due to the principal: Waterman on Set-off, § 267; Wharton on Agency, § 466
    Messrs. Hay & Khispel, for defendant in error;
    that plaintiff’s second instruction was properly refused, because it was not based on the evidence, cited Lawrence v. Jarvis, 32 Ill. 305; 43 Ill. 147; 53 Ill. 419.
    When a principal is not disclosed, and the agent contracts for himself, the principal can only claim subject to the equities applicable to the agent: Wharton on Agency, 405; Koch v. Willi, 63 Ill. 144; Wheeler v. Reed, 36 Ill. 81.
    Persons dealing with an agent, supposing him to be principal, can take advantage of any set-off against the agent: Wharton on Agency, 465; Koch v. Willi, 63 Ill. 144.
    If a principal permits an agent to act as if he were principal, he will be subject to any set-off against the agent: 2 Parsons on Contracts, 251; Waterman on Set-off, 321; Stinson v. Gould, 74 Ill. 80.
    Where a person becomes bound to the payment of money for another, payment by negotiable paper or securities will be considered equivalent to payment in cash: Ralston v. Wood, 15 Ill. 159; Gillilan v. Nixon, 26 Ill. 50; Cox v. Reed, 27 Ill. 434; Wilkenson v. Stewart, 30 Ill. 48; Jewett v. Palmer, 7 Johns. Ch. 65.
    Whether payment was intended is a question for the jury: 2 Greenleaf’s Ev. 519.
    Defendant is still liable to the city for the balance unpaid: Coons v. The People, 76 Ill. 383.
    A demand against the plaintiff assigned to the defendant before commencement of suit, may be set off, although he has not paid for the same: Everitt v. Strong, 5 Hill, 163.
    Agreement by a grantee to pay a prior incumbrance may be enforced against him: Rawson’s Adm’r v. Popland, 2 Sandf. 251; 3 Barb. Ch. 166.
    An obligee in a bond is not obliged to first pay the indebtedness, in case of failure of the obligor to perform, before bringing suit: Pierce v. Plumb, 74 Ill. 326.

      Actual transfer of the debt in a banker’s book with knowledge and consent of both debtor and creditor is equivalent to payment: Eyles v. Ellis, 4 Bing. 112.
   Baker, J.

This was an action- of assumpsit, prosecuted by Jacob B. Beutchler, who sued for the use of the People’s Bank of Belleville, against August C. Hucke. The declaration contained the common counts. The defendant filed the general issue, and gáve special notice that he would prove on the trial that before the suit was commenced he paid, laid out and expended for plaintiff, at his special instance and request, $1,-250, the said sum being so paid by defendant for the taxes of plaintiff, due by him to the city of Belleville for the year 1874, and that defendant would set off said sum against the amount claimed in the declaration. The case was submitted at the January term, 1878, of the St. Clair Circuit Court, to a jury, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at $298.49. The plaintiff thereupon moved the court for a new trial, which motion was overruled by the court, and judgment rendered upon the verdict. The plaintiff excepted to the ruling of the court in overruling the motion for a new trial, and brought the case to this court on a writ of error. °

There are several errors assigned on the record. Among these are that the court erred in refusing to give plaintiff’s second instruction; in giving the instruction hereinafter referred to, and in overruling the plaintiff’s motion for a new trial.

The evidence shows that the defendant purchased from plaintiff a bill of nails amounting to $1,017.

In reference to the matter of set-off referred to in the special notice, the defendant Hucke testified upon the trial substantially as follows: “I was city tax collector of Belleville prior to 1876. Before that time Beutchler told me to mark his taxes paid when I settled with the city, and when I wanted my money I should come to him and get it. This was done two years in succession. I marked the tax books paid. Afterward Beutchler refused to pay me, and I bought these nails to get my money. I paid the city part of this tax. I settled with the city, and 1 owe the city part of it yet. I am responsible to the city for it. The total amount of the taxes was $718.51. I offered Reutchler his tax receipts, and he refused them. He said he wouldn’t pay his taxes. I have settled with the city, and Mr. Reutchler is discharged as far as the city is concerned. The city has the tax books.”

Upon cross-examination he stated: “Reutchler came to me told me he wanted me to pay his taxes in March, 1874. I was collector in 1875 and 1876. I didn’t know that Reutchler would not pay me the taxes. It was after that I wanted a settlement with him. He put me off. I am to pay his taxes, and therefore I won’t pay those notes. There has been an understanding that I am not to be bound unless I get the money out of Mr. Reutchler. I have paid over $100 of these taxes into the city treasury. How much over $1001 cannot say. I don’t know whether I can say I have paid the money. I paid over all the money I collected and $100 more. That which I have not collected I have not paid, except about $100. I guess I have to pay the money yet. I only remember Mr. Reutchler refused to pay his taxes, and he owes them to me, and that is all I can remember distinctly.”

In reference to this same matter of taxes Reutchler testified: “Some time in the early part of 1875 I went to Mr. Hucke and told him to make out my tax receipts and lay them by, and when I got ready I would pay them. I never told Mr. Hucke to pay my taxes. The year before he had made out my receipts and laid them by, and when I got ready I paid them. I never gave Hucke any authority to pay my taxes, and my property is still liable for it. I paid the tax in 1874. It was in 1875 I told Hucke to make out my receipts. I never paid Hucke this claim, nor did I pay any of the city taxes in 1875. They were considered illegal.”

Gf. A. Willey testified that he was a member of the city council, and on the committee on collector’s report; that there was no particular agreement about the taxes, but that the understanding with Hucke was that Hucke was to pay when he collected, if he did collect; that they were to remain a charge against Hucke in that way until he collected of Reutchler -if possible; that there was no resolution or ordinance, and that the council took no formal action that he recollected.

The court instructed the jury as follows:

“If the jury believe, from the evidence, that plaintiff told defendant to pay his taxes, and that defendant did pay his tax, or settled the same with the city, so as to make him legally and absolutely liable to the city for them, prior to the commencement of this suit, and has proved the amount so paid or settled by a preponderance of evidence, they, the jury, should allow defendant a credit on any claim plaintiff may have proved against defendant, if any has been proved.”

To the giving of this instruction plaintiff excepted.

The jury allowed the plaintiff’s claim for nails, §1,017, and the whole of defendant’s set-off for taxes paid, §718.51, and returned a verdict for the plaintiff for the balance, §298.49.

The set-off should not have been allowed. Hucke has not paid this $718.51, either in money, property, negotiable paper or securities, or in.any manner whatsoever, to the city. All that he has done is to make out the tax receipts, and mark the taxes paid on the tax books. He merely states that he paid over all the money he collected and about §100 in excess; but his own testimony, regarded as a whole, rather rebuts any presumption that he paid this excess specifically as a payment on Beutchler’s taxes. Moreover, he states himself that he is not to be bound for the taxes unless he gets the money out of Beutchler. The set-off is for money paid for plaintiff, and we are unable to gather from the evidence that he has ever made payment in any mode. Even 'if the agreement was that Hucke was to pay the taxes, yet he has never done so, and the agreement made has not been executed by either party. 2 G-reenl. Ev. § 519 et seq.; Smalley v. Edey, 19 Ill. 207; Ralston et al. v. Wood, 15 Ill.171.

If the city has ever received 'these taxes, it is difficult to see from the evidence when, how and from whom it received them.

The above instruction given by the court was wrong, and it should not have been given, and it probably misled the jury. In it the jury was told that if the defendant settled the tax with the city, so as to make himself legally and absolutely liable to the city, then the plaintiff was liable to defendant, thus leaving the jury to determine the question of law as to what constitutes a legal and absolute liability. When Reutchler refused to pay the taxes Hucke should have destroyed the receipts, and erased the entries of payment on the tax books, and proceeded to make the money out of Reutchler’s property. The law designates what funds tax collectors shall receive in payment of taxes, and they are not authorized to receive either the promissory notes or verbal promises of the taxpayer in payment. If there is any legal liability on the part of Hucke to the city, which point we are not called upon to determine, it grows out of his own disregard of duty. At all events, he has never paid these taxes to or settled them with the city.

On grounds of public policy, no arrangement can be made between the tax collector and the property owner, whereby the collector can, by merely marking the taxes paid on the tax books, discharge either the owner or the property from liability. If these taxes ever were a valid charge against either the plaintiff or his property, they still continue such, unless discharged otherwise than by the facts here in proof.

An objection is also urged by the plaintiff in error to the ruling of the court, in refusing the second instruction asked by him. There can be no doubt of the correctness of the proposition, that where one deals with an agent, knowing of the agency, he cannot set off a claim due him from the agent against the debt due to the principal. This suit was instituted by Reutchler in Ms own name simply. Afterward, by leave of the court, the style of the cause was changed, so that he could prosecute still in his own name for the use of the bank. If Reutchler was agent and his principal was disclosed, then it would seem that this case would not be included in one of any of those classes of cases where suit can be brought in the name of the agent. "Wharton on Agency and Agents, Oh. 14, § 428 et seq.

The theory of the instruction asked is inconsistent with the theory that the legal cause of action is in Reutchler. We are of the opinion that the plaintiff has no right to complain of the action of the court in refusing to give this instruction.

As the court erred in giving the instruction first referred to herein, and in overruling the motion for a new trial, the judgment of the Circuit Court is reversed, and the cause remanded.

¡Reversed and remanded.


text:
    Hannah B. Blaisdell v. John H. Smith et al
    1. Vendor’s lien—Reservation in deed—Notice.—A vendor may I reserve in a deed, a lien which he can enforce in equity against subsequent I purchasers and incumbrancers. A deed containing a description of the notes I given for the purchase money, and a recital in the habendum clause, “To I have and to hold on the payment of the notes hereinabove stated,” is a suf- I ficient reservation of a vendor’s lien, and the recitals sufficient to put a rea- I sonable person upon inquiry as to the payment of the notes mentioned. I
    2. Deed—Recital—Habendum.—There is no rule requiring a recital to ■ appear in particular portion of a deed. The habendum clause is a part of I the deed. I
    3. Payment oe mortgage—Lapse oe time—Presumption.—After the I lapse of twenty years, in the absence of any proof to the contrary, a morfc- ■ gage will be presumed to have been satisfied. fl
    4. Enforcing lien by assignee oe note.—When a vendor’s lien is ■ reserved in a deed, the right to enforce such lien passes to the assignee of the I note executed for the purchase money. ■
    Appeal from Alton City Court; the Hon. Henry S. Baker, I Judge, presiding. I
    Hr. J. H. Yager, for appellant;
    that the word assigns in a deed means any person to whom the property may in the future he assigned, cited 1 Burrill’s Law Die. 103.
    An agreement that the title shall not vest till the purchase money is paid, is a mortgage: 2 Washburn on Beal Property, 61.
    A purchaser is charged with notice of facts recited in a deed under which he claims: Croskey v. Chapman, 26 Ind. 333; Case v. Bumstead, 24 Ind. 429; Melross v. Scott, 18 Ind. 250; 1 Story’s Eq. Jur. § 401; 2 Leading Cases in Equity, 36.

      The mortgage and note is barred by the Statute of Limitations, more than sixteen years having elapsed since their maturity: 1 Scates, Treat & Blackwell’s Stat. 751, § 4.
    Where the consideration of a note is a deed for land, with covenants against incumbrances, a mere breach of those covenants does not constitute a failure of the consideration of the note: Cassell v. Ross, 33 Ill. 245; Willetts v. Burgess, 34 Ill. 494; Laforge v. Matthews, 68 Ill. 328.
    Mr. John W. Coppingeb, Mr. John J. Bbeniiolt, and Mr. Charles P. Wise, for appellees;
    contending that a vendor’s lien is not looked upon with favor, it being a secret lien, cited Richards v. Leaming et al. 27 Ill. 431.
    A vendor’s lien is not assignable: Markoe et al. v. Andras, 67 Ill. 34; Wing v. Goodman, 75 Ill. 159.
   Allen, J.

A bill was filed in the City Court of Alton by complainant against defendants to enforce a vendor’s lien on certain lots situated in the city of Alton, for the amount of a promissory note for $300, and accrued interest on the same, which she held as assignee of Moses G. Atwood.

Upon a hearing in that court the prayer of the bill was denied, and the bill dismissed with a decree against complainant for costs. Exception was taken by complainant to the decree of the court, and by agreement the cause was brought to this court on an agreed state of facts.

Complainant introduced in support of her bill a conveyance from Moses Atwood and wife (to certain lots in the city of Alton, described in the deed) to John H. Smith, dated April 27, 1857, which was acknowledged and recorded on the 18th day of June, 1857.

- The consideration expressed in the deed is $400 cash, and two notes of $800 each, bearing date even with the deed; the first payable fifteen months after date, and the second thirty-two months after date, each drawing eight per cent, interest per annum, payable annually; and in habendum to the deed, the f'ollowing words: “To have and to hold on payment of the notes herein above stated, the above granted premises,” etc.

Complainant then introduced the note bearing date April 27, 1857, for $800, payable to the grantor in the deed with eight per cent, interest, signed by the grantee in. the deed.

It was further admitted that said note had been duly indorsed to the complainant by the payee, Moses Gr. Atwood, subsequent to the conveyance to other defendants hereinafter mentioned, and that the principal sum and about two years’ interest on the same was yet due and unpaid.

It was further admitted that Smith, the grantee in the deed from Atwood and wife, conveyed the premises to James Valentine and A. Gr. Smith on 30th December, 1859, and that in June following V alen tine and Smith conveyed to Elizabeth Smith, wife of John H., and that these deeds were duly recorded.

That Elizabeth Smith, after she acquired title, executed a mortgage on a part of the premises to Thomas Biggens to secure the payment of a promissory note for $1,000, dated March 13, 1867, and that said note was unsatisfied when this suit was brought.

That afterward, on the 1st day of December, 1875, a fee bill issued from the Supreme Court in a case wherein Elizabeth Smith was a defendant, and was levied on said lots described in deed from Atwood and wife to Smith, and that the same were, sold, and that Henry Watson became the purchaser at said sale, and that said Watson, at the time this bill was filed, held a certificate of purchase for the same, and that after said sale Elizabeth Smith executed and delivered to said Watson a deed for the said lots.

That on the trial below John H. Smith was introduced as a witness for defendant, and testified that at the time he purchased said lots of Atwood, Atwood informed him that there was a mortgage on fhe lots, but that the debt was paid, and that he, Smith, could pay interest on second note till mortgage was satisfied of record.

That after complainant got this note he notified husband of complainant of the existence of the mortgage.

It is further admitted that Atwood, and Blaisdell, husband of complainant, both died more than four years before the commencement of this suit.

This suit was brought to the February term, 1877.

It is insisted by complainant in the bill that this note is made by the deed from Atwood to Smith, a vendor’s lien upon the premises conveyed; that this lien attached from the making and delivery of the deed, and that it is a prior lien to any subsequent purchaser or incumbrancer, and that by the indorsement of the note to complainant by the payee, she became entitled to enforce the lien and collect the note out of the proceeds of a sale of the land.

Defendants controvert this, and insist that no vendor’s lien attached by reason of anything contained in the deed.

That complainant acquired no right to enforce a vendor’s lien on the premises as the assignee of Atwood.

That defendants are not chargeable with notice of any vendor’s lien by reason of anything appearing in the deed from Atwood to Smith.

That a vendor may reserve in a deed a lien that he may enforce in a court of equity against subsequent purchasers and incumbrancers, is no longer a controverted question.

Whether any such lien is reserved" in the deed of Atwood to Smith must depend upon what the deed itself contains.

The note held by complainant is particularly described in the body of the deed as forming a part of the consideration of the deed.

Again, in the habendum we find it referred to in the following language: “To have and to hold on the payment of the notes herein above stated,” etc.

If these statements in the deed, when recorded, are sufficient to put subsequent purchasers upon inquiry as to whether the notes for the purchase money are paid, then they cannot claim that they are innocent purchasers without notice.

The lien of a vendor takes effect against the vendee, his heirs and privies in estate, and against subsequent purchasers who have notice that the purchase money remains unpaid. Purchasers are bound to take notice of all liens shown to exist by the vendor’s deed, and subsequent purchasers will not be regarded as innocent purchasers if such notice of the lien exists as would put a reasonable man upon inquiry. Washburn on Keal Property, 89.

A recital in a deed that a part of the purchase money remains unpaid, is notice to the extent of the sum1 so recited. Ib. 89. Story Eq. Jur. §401.

This deed with its recitals was of record, and these defendants are charged with notice of whatever it contained. 26 Ind. 333.

This court is of opinion that the statements in the deed were sufficient to put a reasonable man upon inquiry. Case v. Busteed, 24 Ind. 426; Melross v. Scott, 18 Ind. 250; 26 Ind. 333.

It is insisted that defendants are not chargeable with notice of anything that may appear in the “habendum ”; that it is no part of the deed; that the conveyance would be good without it. If it were true that what appears in the habendum they were not bound to notice, still we hold that the description of the note in the body of the deed, with the statement that it constituted a part of the consideration, would be sufficient to charge them with notice under the authorities above cited. But the court is not aware of any rule or decision that requires the recital to appear in any particular part of a deed. The habendum clause is a part of the deed.

Again, it is insisted by defendant that the note itself ought to show that it was a lien on the land sold. The note is private property; the law does not require it to be recorded; how, then, could any stipulation in the note itself be notice to subsequent purchasers, unless it was recorded, or had been exhibited to the purchaser? We think this objection is not well taken.

Defendants insist that this lien should not be enforced, because there was a mortgage on this property when Smith purchased of Atwood. The evidence tends to show that that mortgage was due at the date of sale, and that it had been satisfied, but not released of record. More than twenty years had elapsed before this" suit was brought. The law raises the presumption that it was satisfied, and in the absence of any proof tending to show the contrary, the court will regard it as satisfied.

The only additional question raised by the defendant is, can the complainant, as assignee of the vendor, enforce this lien?

Wlien a vendor’s lien is reserved in a deed, the right to enforce that lien passes to the assignee of the note executed for the purchase money. Carpenter v. Mitchell, 54 Ill. 126; Craskey v. Chapman, 26 Ind. 333.

In the habendum of this deed defendants were notified that Smith, the grantee, was “ to have and to hold on the payment of the notes above stated,” etc., showing that the lien for the payment of the notes was expressly reserved.

Regarding this note as an express lien reserved in the deed, the decision of the city court must be reversed, and the cause remanded.

Reversed and remanded.