text:
    Bernhard Luecken v. Michael Wuest.

      Real Property—Trespass—Boundary Line—Way—Adverse Possession.

    1. A prescriptive right to the use of a way can not he acquired by use, if it is crossed by a gate and the key is kept by the person cliiming title.
    2. In an action of trespass, it being claimed that the defendant had wrongfully entered upon and plowed a strip of land, this court holds that the evidence sustains the judgment for the plaintiff.
    [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.

      Messrs. Alexander Flannigen and Turner & Holder, for appellant.
    To maintain trespass quare clausum, there must have been an actual possession in the plaintiff when the trespass was committed, or a constructive possession in respect of the right ■ being actually vested in him. 3 £!. Com. 210; 4 Kent, 120;' Campbell v. Arnold, 1 John. 511: Dean v. Comstock, 32 Ill. 173.
    Constructive possession is where the plaintiff has the legal title to vacant or unoccupied lands, which draws to it the possession. This is called seizin in law. Van Rensselaer v. Van Rensselaer, 9 John. 378; Fort Dearborn Lodge v. Klein et al., 115 Ill. 177.
    There is no constructive possession of disputed boundary lines. Where there is an actual adverse possession by one, there can be no constructive possession acquired by another; 3 Washb. on Real Prop. 128; Tiedeman on Real Prop. 695; Smith v. Wunderlich, 70 Ill. 426; Barber v. Trustees, etc., 51 Ill. 398.
    Twenty years’ open, public and visible possession, hostile to all the world, claiming ownership, constitutes perfect title. Wood on Lim. 257; Tiedeman on Real Prop., Sec. 713; Washburn on Real Prop., Vol. 2, p. 482; Truesdale v. Ford, 37 Ill. 210.
    If a person enters under a deed, and fences "n more land than his deed covers, he will hold the whole if he keeps up the fence for the full statutory period. Levettenham v. Leary, 18 Hun (N. Y.), 284; Grun v. Murphy, 110 Ill. 74.
    A road, traveled for twenty years by everybody having occasion to use it, becomes a public highway. Town of Lewiston v. Proctor, 27 Ill. 414.
    Messrs. Charles P. Knispel and James M. Hay, for appellee.
    Possession may be proved by showing paramount title, which draws to it the possession in contemplation of law, to the boundary line of the tract, if it is occupied by another, or it may be shown by proving actual occupancy of a portion of the tract, with a deed under which the possession is held, and in such case the deed proves or explains the possession as extending to the lines called for by the deed. Winkler v. Meister, 40 Ill. 349; Welch v. Louis, 31 Ill. 446.

    It is the acknowledged principle of law in the United States that “ Possession follows the ownership, unless there be an adverse possession.” .
    The visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, or a deed purporting to convey the whole, is in law the actual possession of the entire tract, except so far as “adverse possession ” may exist. Keith v. Keith, 104 Ill. 397; Brooks v. Bruyn, 18 Ill. 539; Hardisty v. Glenn 32 Ill. 62; Bowman v. Wettig, 39 Ill. 417; Barber v. Trustees, 51 Ill. 398.
    Actual possession not necessary if the plaintiff is the owner in fee. Smith v. Wunderlich, 70 Ill. 426; Van Rensellaer v. Radelciff, 10 Wend. 640.
    Constructive possession is when a man claims to hold by virtue of some title, without having the actual occupancy; as, when the owner of a lot of land, regularly laid out, is in possession of any part, he is considered constructively in possession of the whole. 2 Bouvier’s Law Dict. 352; Morrison v. Kelly, 22 Ill. 610.
    The doctrine of constructive possession is that a deed of land shall, so far as the grantee is concerned, be a substitute for a substantial and permanent inclosure. Chandler v. Spear, 22 Vt. 388; Swift v. Gage, 26 Vt. 224.
    The proof is clear and uncontradicted that appellee has, and had, the fee-simple title to the land in question. It is further clear and uncontradicted that he had actual, visible possession by inclosure of ali that part of survey 115 as platted, and which lies north of the line marked on the aforesaid plats as possessory line of a regularly laid out government survey, and that he claimed title to the whole under sa'd deed arid-will. .On the part of appellee it is further claimed that he had the actual possession of the strip in question; this is denied by appellant, and he claims that he or his landlord have had and have the actual adverse possession of the strip in question; and this is set up to defeat what counsel concede to be our constructive possession.
    The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. No title by such possession can be acquired unless the party has the actual use and occupation of the land. Tyler on Ejectment, 886; Irving v. Bromwell, 11 Ill. 402; Ambrose v. Raley, 58 Ill. 506; McClellan v. Kellogg, 17 Ill. 498.
    To constitute an.adverse possession sufficient to defeat the right of action of the party who has the legal title, the possession must be hostile in its inception, and so continue without interruption for twenty years. It must be an actual, visib’e and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. Turney v. Chamberlain, 15 Ill. 271.
    It must be open and exclusive of the rights of all others. Tyler on Ejectment, 865; McClellan v. Kellogg, supra.

    Or, according to Truesdale v. Ford, 37 Ill. 210, cited by appellant: Whatever may be the character of the occupancy or the improvement, it must still be exclusive. If only used and enjoyed in common with others, or with the public in general, it could not be regarded as hostile to other persons claiming title.
    It must be considered as settled, if a series of decisions for sixty years can settle a question, that when the occupant of land produces no written title, but relies solely on possession with an assertion of title, he can retain so much only as he has had under actual improvement and within a substantial inclosure; and the decisions are that the possession must be marked by distinct boundaries. Tyler on Ejectment, 891, 888, 894; Bristol v. Carroll Co., 95 Ill. 84.
    If the adverse possession be broken but. for a day its effect is entirely destroyed, and, so far as that possession is concerned, it is at an end. Tyler on Ejectment, 910 ; 3 Wait’s Act. and Def. 105.
    Tested by these rules of law, appellant has failed to establisli adverse possession in him or his landlord, even if all evidence produced by appellee is excluded. Taking all the evidence together, the preponderance of testimony is in favor of actual possession by appellee.
    No inference or conclusion will be drawn in this State, against the owner of land, in favor of the establishment of a public easement over it, from the mere travel across it by the public without objection from the owner. Warren v. Jacksonville, 15 Ill. 236; Gentleman v. Soule, 32 Ill. 271.
    An adverse right to an easement can not grow out of a mere permissive enjoyment for any length of time. City of Quincy v. Jones, 76 Ill. 231.
    On the contrary, this strip, by permission of Wuest, the owner in fee, being used as a common drive-way by others as also by himself, his possession was not thereby impaired. Under such circumstances, their use of the strip is not adverse to, but strictly in subordination to his right of possession. Winslow v. Cooper, 104 Ill. 235.
   Phillips, J.

An action was commenced by appellee against appellant before a justice of the peace for trespass, in wrongfully entering upon and plowing the land of appellee. On appeal to the Circuit Court, and trial before the judge without a jury, the defendant was found guilty and damages assessed at $25 ; from that judgment this appeal is prosecuted. The appellee claims he had title to the locus in, quo, and was- in possession of the same; this is denied by appellant, and the claim is made that he or his landlord have had, and have, the actual adverse possession of the land in question.

The preponderance of the evidence shows that appellee, for more than twenty years, claimed the disputed strip of land, and exercised acts of ownership over it; put up gates or bars across it; that he cleared a part of it and plowed it. His acts were open, actual and exclusive. From the evidence we fail to find such aqts of ownership exercised by appellant or his landlord over this land.

It is, however, insisted that over this strip of land in con- • troversy, there was a public highway. The evidence shows that for access to his fields and for the convenience of his neighbors, this strip of land was used as a highway; but while so used, for many years the appellee kept a gate across the road, which was locked, and persons desiring to pass through would get the key to unlock the gate.

The appellee testified that the road was closed by a gate “until since the stock law, some twelve, thirteen or fourteen years ago.” The road has, from this evidence, not been open so that the public could claim the same by prescription against the appellee.

The possession of appellee being thus shown, and the acts of appellant proven, appellant was guilty.

■ Finding no error in the record the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    John Ging v. H. Robinson & Son.

      Practice—Bill of Exceptions—Attachment—Fraudulent Concealment— Interpleader—Instructions.

    The motion for a new trial and instructions complained of must be preserved in the bill of exceptions in order to warrant a consideration of the errors assigned.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Messrs. S. F. Gilmore and E. N. Rinehart, for appellant.
    Messrs. R. C. Harrah and Wood Bros., for appellees.
   Green, P. J.

Appellees sued out an attachment against C. Ambuehl, alleging in the affidavit, he was about to fraudulently conceal, assign and otherwise dispose of his property and effects, so as to hinder and delay his creditors; that the indebtedness was for goods, wares and merchandise sold and delivered by plaintiffs to Ambuehl, and amounted to $109.95 after allowing all just credits, etc., and his residence was in said county and State. Ambuehl, by plea, traversed only the allegation that he was about to fraudulently conceal, assign and otherwise dispose of his property and effects so as to hinder and delay his creditors, but filed no other plea, and Ging, the appellant, filed his interpleader, claiming the goods attached as owner thereof, and to this plaintiffs interposed a special replication. By agreement the issues joined on the plea of Ambuehl and interpleader of appellant were both tried by one and the same jury, who, by their verdict, found the property attached to be the property of Ambuehl at the time .of the levy, and not the property of John Ging. The judgment of the court as transcribed into the record is as follows: “It is therefore considered, ordered and adjudged by the court here, that the said plaintiffs have judgment against the said defendant and property attached; and it appearing to the court here from the evidence produced, that said plaintiffs have sustained damages by reason of the nonperformance of certain promises in their declaration mentioned in the sum of $109.25, it is by the court here therefore ordered and adjudged that the said plaintiffs do have and recover from the said defendant the said sum of $109.25 for their damages herein, assessed by the court as aforesaid, together with all costs and charges by them made about this suit in this behalf expended, and that they have special execution therefor against the property levied upon under and by virtue of the original writ of attachment issued herein.” From this judgment Ging alone appealed and assigns the errors as follows: 1, “That the verdict of the jury in said cause was contrary to the law;” 2, “That the verdict is contrary to the evidence;” 3, “That the court gave improper instructions to the jury on behalf of the plaintiffs;” 4, “That the court erred in overruling the motion for a new trial; ” 5, “That the court admitted improper evidence on part of plaintiffs.”

The bill of exceptions does not contain the instructions complained of, or a motion for a new trial, and we can not look elsewhere in the record for them; they must be embodied and preserved in the bill of exceptions to become a part of the record. By reason of the said omission we are precluded from considering any of the errors assigned. Law v. Fletcher, 84 Ill. 45; James v. Dexter, 113 Ill. 654. In the latter case it is said in the opinion, it is not sufficient that the transcript of the record, as made up by the clerk, shows such motion wras made and overruled and exception taken. These facts must appear in the bill of exceptions, otherwise the case will not be reviewed in the Appellate Court.

Believing the case at bar is one wherein the rule announced in the cases cited applies, we decline to consider and pass on the quest'on involved in the errors assigned and must affirm the judgment.

Judgment affirm ed.


author: Phillips, J.

text:
    The Indiana and Illinois Southern Railroad Company v. Mark Sampson.

      Railroads—Vences—Secs. 62, 65, 66, Chap, lié, R. S.—Notice—Form and Contents—Penalty—Arrest of Judgment—Damages—Instructions.

    1. The statutory penalty for failure by a railroad company to build a fence, may be recovered after notice by either the owner or occupant of the land in question and the building thereof by him.
    2. While the notice should on it« face show the right of the person giving the same to have it done, failing to do so, it is sufficient if the evidence shows that the same was given by the proper person.
    ' 3. A notice addressed, to the company by its initials and served on its agent, is sufficient.
    4. A notice need not insist that the fence be erected within the time prescribed by the statute.
    5. The trial court can not arbitrarily change the rule of damages laid down by the statute-to apply where the land owner or occupant builds such lence, the company, after notice, failing to do so.
    6. To recover the penalty, the plaintiff must show that the fence built by him conformed to the requirements of the statute and its cost.
    7. A defendant, by pleading over after the overruling of his demurrer, waives the same.
    8. A motion in arrest of judgment for any exception that might, have bpen taken on arguing a demurrer, will not be considered after judgment thereon.
    [Opinion filed August 29, 1889.]
    Appeal from the Circuit Court of Jasper County; the Hon. William C. Jones, Judge, presiding.
    Messrs. Harrah & Davidson and Gibson & Johnson, for apjiellant. ,
    Messrs. Fithian & Jack, for appellee.
   Phillips, J.

Appellee sues to recover the penalty under Sec. 66, Ch. 114, R. S. 1887, for failure on the part of appellant to build a fence after notice by the owner of land through which the road passes. The notice prescribed by the statute can be given by the owner or occupant alone, to put the railroad company in the position of being liable to double the cost of building the fence after it is built by such owner or occupant. This notice does not purport to be signed by the owner or occupant. While we are of the opinion that the notice should, on its face, show the right of the person giving the notice, to have the company build the fence, yet the evidence in this record shows the notice was given by the owner and must therefore be held sufficient. It is urged that the notice was not directed to the appellant. The notice is directed to the “I. & I. S. R. R. Co.” and was served on the agent of appellant; the notice to the corporation was sufficient as to the address of the corporation and service. It is further urged that the notice is defective in not requiring the company to build the fence within thirty days. The statute prescribes the time within which the fence must be built after notice, and of that the corporation must take notice. It is not necessary for the notice to insist that the fence shall be built within thirty days.

By the second instruction given for appellee the court instructed the jury as to the duty of the railroad company as presented by the statute, and that where notice was given by the owner and the railroad company failed to build such fence, and the fence was built by the owner giving such notice, then the measure pf damage as given by the court was: “ Then you should find for the plaintiff in the amount you believe -from the evidence such fence and gates are" reasonably worth, with interest at one per cent, per month, as damages from the time such fence was built.”

This instruction did not correctly state the rule of damage. The statute fixes the amount of recovery at double the cost with interest at one per cent, per month from the time such fence is built, until the time of recovery. The court can not arbitrarily change that rule of damage and prescribe another. While the appellant has not the right to insist on a reversal for this alone, yet the danger would result that verdicts would be more liable to be had in plaintiff’s favor, where the person giving the notice had not complied with the requirement of the statute, if the rule be changed from its penal character to one of cost alone.

The motion in arrest of judgment, the overruling of which is assigned as error, questions the sufficiency of the declaration to support the judgment. The declaration is in casé and has no averment of the kind of fence constructed, nor of the cost of building the same. By Sec. 62 of Chap. 114, B. S., railroad corporations shall, within six months after any part of its line is open for use, erect, and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad. By Sec. 65, the corporation failing to build such fence, the owner or occupant of lands through or over which such railroad passes may give notice to the corporation to build such fence. On the failure to build such fence by the corporation, such owner or occupant may build and recover double the cost with in. tere'st at one per cent, per month. This statute is highly penal and before a recovery can be had under it the plaintiff must bring himself clearly within the provisions. Edwards v. Hill, 11 Ill. 22.

To recover upon this penal liability of double the value of the fence, the statute should be strictly followed in the building of the fence. .The fence should be such an one as the statute requires and authorizes, built in the mode the statute contemplates. W., St. L. & P. Ry. Co. v. Zeigler, 108 Ill. 304.

It is necessary to prove the fence built was such as .railroad companies were required to build by the statute. The record shows that was done, and also shows the cost of building the fence. By reason of a failure of the pleader to aver the fence built was of .the bind required for railroad companies to build, or its cost, it was defective. It was demurred to and the demurrer was overruled. The defendant pleaded over. By doing so the demurrer was waived. After judgment on demurrer there can be no motion in arrest of judgment for any exception that might have been taken on arguing the demurrer.” Tidd’s Prac., 918. By Sec. 6, Chap. 7, Starr & C. Ill. Stats., “judgment shall not be arrested or stayed * * * for any mispleading, insufficient pleading, etc.” The motion in arrest of judgment can be of no benefit to this appellant. The evidence was not objected to under the declaration on trial; therefore we hold the motion in arrest of judgment was properly overruled. While we are of opinion the action should have been debt, still, under the record as made in. this case the judgment must be affirmed.

Judgment affirmed.


text:
    Brutus S. Bruner, Surviving Partner, etc., v. Jane Nisbett.

      Negotiable In strum enfs—Note—Order upon Employers in Favor of Creditor—Acceptance—Evidence—•Verdict.
    In an action to recover On an alleged acceptance of an order, given by a debtor upon his employers in favor of a creditor, the contention being as to whether the same was accepted by said employers, this court holds that the objection to the testimony of a certain witness as incompetent, being fiis • made in this court, comes too late; that the testimony of such witness was admissible to show the admissions and actions of said employers with reference to such acceptance and its genuineness; that it was proper to let such acceptance go in evidence; that declarations of a deceased member of the firm of employers were properly admissible by way of impeachment; that upon cross-examination the surviving member thereof might be interrogated, he having upon direct examination denied the execution of the acceptance, as to whether the bank carrying the account of the firm had ever with his knowledge made payments to the payee of the order on account of the drawer; that the court did not err in refusing to admit .evidence as to the financial condition of such firm at the time of the alleged acceptance, nor in permitting defendant to testify as to alleged statements made by him with reference to. a previous verbal agreement between the same parties; that the failure to prove payment by the indorsee of a consideration for the order, can not be complained of in the absence of evidence going to show that the transaction involving the acceptance was outside the partnership business; that the evidence warrants the finding of knowl edge of acceptance on the part of the surviving member of the firm of employers; and that the verdict for plaintiff in view of the fact that tlv acceptance was unqualified, was not excessive.
    [Opinion filed August 28, 1889.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    This is an action of assumpsit. The declaration contains one special and the common counts. The special count alleges that on November 15,1877, at the city of Alton, one James Goudie made his order in writing and delivered the same to T. P. Nisbett & Co., and thereby requested defendant, by the name and style of Messrs. Duncan & Bruner, to pay, after date thereof, to T. P. Nisbett & Co., every week, until promissory note attached, with interest, was paid, the sum of 82, and deduct the same from his account; said promissory note being worded as follows, to wit:
    “ 8287 .-5. Alton, Nov. 20, 1877.
    One day after date I promise to pay to the order of T. P. Nisbett & Co. two hundred eighty-seven and 45-100 dollars, with interest at the rate of (10) ten per cent, from date, value received, from Mrs. Jane Nisbett.
    James Goudie.”
    Which said order, with the note attached, the defendant by the name and style of Bruner & Duncan, on the day, etc., accepted by writing across the face of said order “ Act, Bruner & Duncan.” That the' said T. P. Nisbett & Co., on, etc., assigned the said order and note attached by indorsement to the plaintiff and delivered-the same to her ; request to pay, refusal, etc. Pleas of general issue and non est factvm. Trial and verdict for plaintiff for 8525.59. To reverse this judgment the record is brought here by appeal.
    Messrs. Wise & Davis, for appellant.
    Before a witness can testify regarding a signature or handwriting he should first state he saw the party write, or was acquainted with his handwriting, stating how he obtained his knowledge. Woodford v. McClenahan, 4 Gilm. 88; Job v. Tebbetts, 4 Gilm. 151 Putnam v. Wadley, 40 Ill. 346;. Massey v. Farmers’ Nat. Bank, 104 Ill. 332; Cross v. People, 47 Ill. 163.
    Nisbett was allowed to testify against defendant’s objection . about the firm’s signature or acceptance to the order, h*e not stating that he was acquainted with the firm’s signature or 1 saw Duncan write the same.
    Duncan being dead and Nisbett being adversely interested in the suit his testimony regarding Duncan’s admissions were improper. Starr & C. Ill. Stats., Sec. 4, Chap. 51; Henry v Tiffany, 5 Ill. App. 548; Kedden v. Inman, 6 Ill. App. 55; Mestling v. Hughes, 89 Ill. 389; Langley v. Dodsworth, 81 Ill. 86; Merrill v. Atkin, 69 Ill. 19; Branger v. Lucy, 82 Ill. 91; Hurlbut v. Meeker, 104 Ill. 541.
    Verbal admissions of a party ought to be received with great caution. Bragg v. Geddes et al., 93 Ill. 39; Frizell v. Cole, 29 Ill. 465; Greenleaf on Ev., Sec. 30.
    Especially so when that party, who it is claimed made the admission, is dead, and the witness testifying is interested, and instead of stating facts, only gives inferences and conclusions. Helm v. Cantrell, 59 Ill. 524; Henry v. Tiffany, 5 Ill. App. 548.
    The court erred in allowing improper evidence:
    First, in allowing James Duncan’s declarations or admissions, he neither being a party to the suit nor an agent of defendant. C., B. & Q. R. R. Co. v. Lee, 60 Ill. p. 503; Callaghan v. Myers, 89 Ill. 566; Lincoln Coal & Mining Co. v. McNally, 15 Ill. App. 181; Jenks v. Burr, 56 Ill. 450; Mix v. Osby, 62 Ill: 193; Lindblom v. Ramsey, 75 Ill. 246; Thomas v. Rutledge, 67 Ill. 213.
    Second, in allowing B. S. Bruner and James Duncan to be cross-examined on matters not brought out in the direct examination; Waller v. Carter, 8 Ill. App. 511; Hurlbut v. Mecker, 104 Ill. 543; Stafford v. Fargo, 35 Ill. 481; Bell v. Prewitt, 62 Ill. 361.
    Cross-examination as to a collateral fact to lay a foundation to contradict the witness not allowable. C., B. & Q. R. R. Co. v. Lee, 60 Ill. 501.
    If a question as to a collateral fact be put to a witness for the purpose of discrediting his testimony, his answer must be taken as conclusive, and no evidence can afterward be admitted to contradict it. C., B. & Q. R. R. Co. v. Lee, 60 Ill. 501.
    The court erred in excluding testimony:
    First. . Bruner, on cross-examination, was questioned about a part of conversation with Volbrecht; the court on re-examination refused to permit the witness to relate the rest of the conversation. McIntyre v. Thompson, 14 Ill. App. 554; Hatch v. Potter, 2 Gilm. 725; Phares v. Barber, 61 Ill. 271.
    Second. In not permitting Brunei' to show the financial condition of the firm of Bruner & Duncan when the order was claimed to be signed by Gilbert Duncan for the firm. Thorp v. Goewey, Adrn’x, 85 Ill. 614.
    The debt being Goudie’s and admitting the order was actually accepted by the firm, it was to pay for Goudie two dollars per week as he earned it, in the future; Duncan dying dissolved the partnership, and ended the liability of the firm, and the firm would be liable only for the amount due at Dun-em’s death. Spurck v. Leonard, 9 IN. App. 174; Oliver, Admx, v. Forrester, Ex’r, 96 Ill. 315; Remick, Adm’x, v. Emig, 42 Ill. 342; Col. on Part., Secs. 113, 117, 118.
    The order was dated Bovember, 1877; "Duncan died March. 1879, making sixteen months, or say seventy weeks, at two dollars per week—$140. This verdict is clearly excessive.
    A firm’s acceptance or a firm’s guarantee executed by one partner in a matter outside the partnership business, will not bind the other member of the firm, unless it is by his authority, or is ratified by him after a full knowledge of the facts. Gray v. Ward, 18 Ill. 32; Bradley v. Linn, 19 Ill. App. 322 ; Marsh v. Thompson Nat. Bank, 2 Ill. App. 217; Davis v. Blackwell. 5 Ill. App. 32; Spurck v. Leonard, 9 Ill. App. 175; Brewster v. Mott, 4 Scam. 378; McNair v. Platt, 46 Ill. 213; Wright v. Brosseau, 73 Ill. 381; Zuel v. Bowen, 78 Ill. 234.
    The burden of proving the authority of the partner or consent of the other partner, is upon the holder of the order or acceptance. Langan v. Hewitt, 21 Miss. 122; Marsh v. Thompson Nat. Bank, 2 Ill. App. 217; Davis v. Blackwell, 5 Ill. App. 33; Spurck v. Leonard, 9 Ill. App. 175; McNair v. Platt, 46 Ill. 213; Foot v. Sabin, 19 Johns. 154; Boyd v. Plumb, 7 Wend. 309 ; Wright v. Brosseau, 73 Ill. 381.
    Indorsee must prove the consideration paid for the order. Col. on Partner., Sec. 494 and authorities there cited; Parsons on Part., 211; Wright v. Brosseau, 73 Ill. 385 ; Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Vergernes v. Cameron, 7 Barb. 143 ; Chitty on Bills, 69, 648; N. Y. Fire Ins. Co. v. Bennett, 5 Conn. 574; Livingston v. Hartie, 2 Carnes, 246 ; Weed v. Richardson, 2 Dev. and Bat. 535 ; Rohton v. Click, 1 Stew. 526; Lansing v. Gains, 2 Johns. 300.,

      More failure to deny liability is not a ratification. Marsh v. Thompson Nat. Bank, 2 Ill. App. 218 ; Reuben v. Cohen, 48 Cal. 545 ; McKinney v. Brights, 16 Pa. St. 404; Horton v. Lewis, 6 Leigh. 60; Elliot v. Dudley, 19 Barb. 326; Mercein v. Mack, 10 Wend. 463; Bankhead v. Alloway, 6 Cold. (Tenn.) 57; Col. on Part, Sec. 415, page 677, 6th Ed.; Ferguson v. Shepard & Gordon, 1 Sneed, 256.
    The instructions given for plaintiff are improper, for the following reasons :
    1st. There was no evidence on which to base them in this respect. No evidence that it was within the scope or line of the partnership business to accept such an order; and no evidence of any payments being made on this order. Goodwin v. Durham, 56 Ill. 240 ; Holden v. Hulburd, 61 Ill. 2S2; Paulin v. Howser, 63 Ill. 314.
    2d. They do not state the law correctly, ignoring the principle that the acceptance being outside of the scope of the partnership business, plaintiff must prove either assent at the time, or subsequent ratification ; mere subsequent knowledge and failure to deny liability is not sufficient.
    3d. The modification made to defendant’s instructions were improper, because there was no evidence on which to base the same.
    Mr. Alexander W. Hope, for appellee.
    A witness may testify to the signature of a person, either from having seen him write his name or from having seen writings purporting to- be signed by such person, and having afterward personally communicated with him respecting them; or having acted upon writings as a certain person, the person having known and acquiesced in such acts, founded upon the genuineness of the writings; or the adoption of writings into the ordinary transactions of life, by a person, such as induces a presumption-of their being in his own handwriting; or the admission of the party of the genuineness of the writing. Any of these modes are sufficient to lay a foundation to admit the writings in evidence under a plea of non eft factum. 1 Green-leaf on Ev., Sec. 577; Wallace v. Wallace, 8 Ill. App. 69; Tyler v. Bailey, 71 Ill. 34; Melvin v. Hodges, 71 Ill. 422; Bowman v. Aubery, 72 Ill. 619; Board of Trustees v. Misenheimer, 78 Ill. 22; Paul v. Berry, 78 Ill. 158.
    ‘ Ratification may be express or implied, and silence alone sometimes operates as a ratification, and it may also be inferred from circumstances. Searing v. Butler, 69 Ill. 575; C. & St. L. R. R. Co. v. Mahoney, 82 Ill. 73.
    Although a partner may do an act outside of the scope of the partnership business, yet if he does so, his act, when it comes to the knowledge of the-other partner or partners, should be clearly and promptly repudiated, and a default in doing this within a reasonable time will bind the firm as fully as though the act was authorized in the first instance. Parsons on Partnership, 111; Marine Co. v. Carver, 42 Ill. 66; McDermid v. Cotton, 2 Ill. App. 297.
    But if partners engage in a transaction outside of the regular partnership business the firm is as much bound by such transaction as it would be by matters in the course of the ordinary and customary business of the partnership. Boardman et al. v. Adams et al., 5 Iowa, 224; Pahlman v. Taylor, 75 Ill. 629.
    An assignee before maturity, without notice, is presumed to be a bona fide holder for a valuable consideration. Cisne v. Chidester, 85 Ill. 523.
    The execution of the order is put in issue by a sworn plea, but there is no sworn plea denying assignment, therefore the assignment is not in issue. Rev. Stat., Prac. Act, Chap. 110, Sec. 34; Templeton v. Hayward, 65 Ill. 178; Schroeder v. Harvey, 75 Ill. 638.
    The plea of non-assumpsit admitted the assignment, and the time of the -assignment could only be put.in issue by a plea. Hayden v. Olinger, 5 Ill. App. 632.
    The issue on the order was non-assumpsit, which was disproved by production of the order. Reid et al. v. Degener et al., 82 Ill. 510.
    An acceptor of a bill of exchange is primarily liable for its payment, and can only be discharged by the payment, release or the statute of limitations. Diversy v. Loeb, 22 Ill. 393; Parkhurst v. Vail, 73 Ill. 343.

      The acceptance of a bill of exchange is an admission by the acceptor that he has funds in his hands belonging to the drawer. Gillilan v. Myers, 31 Ill. 525.
    The fact that the acceptor of a bill of exchange has no funds in his hands belonging,to the drawer at the date of the acceptance, and was not then and did not afterward become indebted to the drawer, makes no difference in a suit against the acceptor. Nowak v. Excelsior Stone Co., 78 Ill. 308.
    All joint obligations and covenants are joint and several obligations and covenants. Rev. Stat. Ill., Chap. 76, Sec. 3.
    A partnership note or bill of exchange is joint and several. Ryhiner v. Feikert, 92 Ill. 305.
    The rule is that a partnership is dissolved by the death of one of the partners, unless otherwise stipulated in the partnership agreement. After dissolution of the partnership none of the partners have any authority to make any new contracts to bind the firm, but all old contracts remain in full force against the partnership estate, and also render the individual partners’ private property liable. Hicks v. Russell, 72 Ill. 230; Bank of Montreal v. Page, 98 Ill. 109.
   Phillips, J.

The first question.presented by this record is as to the sufficiency of the evidence to show the fact of the acceptance of the order which is put in issue by the plea of non, est factum. T. P. Nisbett, a son of plaintiff, wrote the order and handed it to his father, who went out for the purpose of having the order signed and accepted, as he testifies, and on his return with the order, he saw the order and acceptance was signed. He further testifies he presented the order and acceptance at various times to Gilbert Duncan, the deceased partner. “He presented the order many times to Gilbert Duncan and he never questioned it;” that when he presented the order to Duncan “ he would give some excuse or some reason why he couldn’t pay.”

The witness further states that the surviving member, Bruner, “knew of the existence of the order; that it was received and accepted by the firm of Bruner & Duncan. I would go up to the foundry and ask to see Mr. Duncan, and he (Bruner) would often say to me, that he was out. I would say to him that I wanted to see about the acceptance of that order, and receive some payment on the order of G-oudie. . He would refer me to Duncan.” The witness further stated that in a recent conversation, the surviving partner stated he “ knew the order and acceptance was out.” The witness did not see the order or acceptance signed, nor did he know the handwriting of either member of the firm, as far as the evidence in the record shows. Under the evidence of this witness, the order and acceptance was allowed to go in evidence to the jury. This is assigned as error, and the sufficiency of the evidence, its admissibility, and the incompetency of the witness is urged in argument. It is sufficient to dispose of the question of the competency of the witness, to say that the record does not show that the witness was objected to, or his interest shown. It was admissible to show admissions and actions of the firm with reference to the acceptance of the order and its genuineness. Paul v. Berry, 78 Ill. 158; Melvin et al. v. Hodges, 71 Ill. 422; Lowman v. Aubery et al., 72 Ill. 519.

There was no error in allowing the acceptance to go in evidence. The weight of the evidence in determining where the preponderance was, were questions for the jury; and there being sufficient evidence to authorize this verdict on the question of fact, we will not disturb this judgment. The objection urged in allowing the declarations of James Duncan to be shown is not well taken, as such declarations may be shown by way of impeachment, and that was the purpose and circumstances under which it was shown here, hior is the objection in reference to the cross-examination of B. S. Bruner well taken. The cross-examination of Bruner to which objection was taken—he having in chief denied the execution of the acceptance—was as to whether the bank with which the firm had their account, had, with his knowledge, made payments to the payee of the order on account of the drawer. This was with direct reference to the subject-matter of the examination in chief. If on their—the acceptors’—account, with their knowledge and without objection, payments were made, it was material to show that, in cross-examination on the question as to whether they had accepted the order. It was not error to refuse to allow the defendants to show the financial condition of the firm at time of alleged acceptance, as that fact could not have enlightened the jury as to the question at issue. The refusal of the court to permit the defendant to testify as to whether he told Yolbrecht what the agreement was between Bruner & Duncan and Nisbett & Co., referring to a verbal agreement in reference to paying $2 per week on account of Goudie, is urged as error. Yet the witness did state what the agreement was fully; and when Yolbrecht was called to impeach Bruner in reference to the acceptance of the order, on cross-examination, the fact that, at that time, in the same conversation, the verbal agreement was stated to him—Yolbrecht—as the verbal agreement, was stated by Bruner. The refusal to allow Bruner to state whether he stated to Yolbrecht what the verbal agreement was, could not have prejudiced the plaintiff, even if it would have been proper testimony. At that stage of the case and before Yolbrecht had been called to impeach the witness Bruner, it was not proper, in re-examination, to state an entire conversation between himself and the witness, because of a question being asked to lay the foundation for impeachment. After the impeaching witness had been called, it may have then been proper to recall the witness, to have had his statement of the conversation.

It is urged the verdict is excessive, and that, admitting the order was actually accepted by the firm, the death of Duncan dissolved the partnership, and ended the liability of the firm, and that the order was for the payment of $2 per week until note attached was paid; and that inasmuch as at $2. per week from the acceptance, as it appears, until the death of Duncan, he having died in March, 1879, there could not be more than $140 due. It is sufficient to answer this point by saying that the acceptance was an unqualified one— that is, there was nothing except the order and its acceptance according to the terms of the order. It was not a qualified or conditional acceptance. An acceptor of a bill of exchange is primarily liable for its payment. Unless the acceptance is in some manner qualified, if liable at all on the acceptance, the acceptor is liable according to the terms of the acceptance. While it is true that between the parties, an acceptance by one partner of a bill in a matter outside the partnership business will not bind the other member unless it is by his authority, or is ratified by him after knowledge, yet in this ease ,it is a conceded fact that Goudie was working for the acceptors and drawees. It is a fact beyond dispute that he had an account with them, and they were indebted to him; how much and to what extent, and when due, is not shown, as a knowledge conveyed to the indorsee. She took the accepted order without notice; so far as shown here, no qualified acceptance, but a clear and explicit promise. The evidence and finding by the jury is, that the order was accepted. The evidence warrants the finding of knowledge of acceptance by Bruner and the liability is clear. Marine Co. v. Carver, 42 Ill. 66; McDermid v. Cotton, 2 Ill. App. 297.

But it is insisted that no consideration being- proven as paid by indorsee for the order, it can not be claimed to be held by an innocent holder. In this case, inasmuch as it appears that in a matter between the firm and one of its employes, the order was drawn and accepted, it can not be regarded as outside the partnership business, and unless it is so, it is not necessary to prove the payment of a consideration by this plaintiff.

What we have said with reference to the acceptance and knowledge of surviving partner and the fact of the drawer, drawees and their business being so intimately associated and connected that the acceptance was in line of business, must dispose of the objection made to the instructions.

The judgment must be affirmed.

Judgment affirmed.


text:
    Russell Hinckley v. Thomas J. Cheney.

      Chattel Mortgages—Hotel Furniture—Breach of Condition—Conversion by Mortgagee—Set-off—Instructions.

    1. Upon seizure of property under chattel mortgage for condition broken, the same must be disposed of in accordance with the terms of the mortgage.
    2. This court will not consider an alleged erroneous ruling of the trial court upon objections first made on appeal.
    3. In an action upon promissory notes, one of which was secured by chattel mortgage on hotel furniture taken possession of by the mortgagee for condition broken, this court holds that the retention thereof for an unreasonable time by the mortgagee and his assignee rendered said mortgagee liable in the value thereof to the mortgagor, notwithstanding his permission that the same might be used by the tenant of the assignee when in charge of the hotel, upon his request, and that said property was a sufficient set-off as against the amount claimed to be due on said notes.
    [Opinion filed August 28, 1889.]
    In error to the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Koerneb & Horner, for plaintiff in error.
    Mr. William Winkelman, for defendant in error.
   Phillips, J.

The plaintiff brought his action of assumpsit against defendant on two promissory notes, one of date February 23, 1884, for $2,000, due one year from date, the other of date February 23, 1885, due one day after date, for the sum of $160 each, with interest from date at the rate of eight per cent, per annum.

The defendant pleaded specially, that at the time of the execution and delivery of the $2,000 note sued on, the defendant was the owner of personal property of the value of $3,000, on which he executed a chattel mortgage to the plaintiff to secure the note; that subsequently the plaintiff made a deed of assignment of all his estate, under and by which deed of assignment the assignee took possession of plaintiff’s estate, and while so in possession of the note and mortgage, took possession of the mortgaged property; that subsequently, the plaintiff .having compromised with his creditors, and the assignee having returned to him all the estate in his hands, plaintiff advertised the property so mortgaged for sale, and through his attorneys, bid in the same, and the value thereof was at least $3,000, and offering to set off that sum.

The evidence shows that the plaintiff was in 230ssessi°n of property to the value of about $3,000, a part of which was not included in the mortgage, and in February, 1886, turned over all the property, which comprised the furniture of a hotel, to the assignee of plaintiff. At that time the indebtedness amounted to about $2,320. On January 27, 1887, the property was sold for $443.50, and the same was bid off by G. A. Koerner.

The assignee testifies that the defendant stated to him that he desired to give up the Hinckley House and get out, “ and told me that Mr. Hinckley held a chattel mortgage on the hotel, goods and furniture, and he desired me to take care of it for the chattel mortgage.

“ He wanted me to take possession and I did so, to dispose of it at any time. I did not deem it advisable to sell the personal property until the house itself was sold. Some time after that, a party desired to rent the hotel. Mr. Cheney, the defendant, consented to the property being used by the incoming tenant; but before it came to a sale, Mr. Hinckley made arrangements to control the property himself.”

While there is nothing in this record to show the date at which the property was returned to Hinckley, yet it does appear, that from February, 1886, to January 27, 1887, the assignee or Hinckley had control of this .property, and at the time the property was turned over," held the notes and chattel mortgage. After thus receiving the property it was the duty of the assignee and of the mortgagee to proceed to the disposal of it in accordance with the provisions of the mortgage. It was held in Waite v. Dennison, 51 Ill. 319, “If, after seizing the property described in the mortgage on condition broken, the mortgagee misapplies it, or converts it to his own use, without proceeding to comply with requirements for its foreclosure, he must account for its value.”

And the fact that Cheney consented to the use of. it by the tenant of the assignee, at the request of the assignee, under the circumstances as testified to, would not relieve Hinckley from liability for the value of the property, the sale of which was thus unreasonably delayed, and used an unreasonable time. The only testimony in the record as to the value of the property is that of the defendant, who testified that he considered the property to be worth about $2,500 when he turned it over, and Peter J off ray, who testified that he was the auctioneer who sold the property; that the mortgage was handed him by Mr. Koerner; that there was competition at the sale; that the property was sold to Mr. Koerner, and in his estimation the property sold at a reasonable value; and Mr. Koerner, who states that he bid the property off for $443.50; that he “ attended the sale of the property at the Hinckley House for some gentlemen who had taken the notes as security for a debt thatMr. Hinckley owed them; and I recollect that I paid a pretty fair price for the furniture. -1 am not an expert in the judgment "of values but there were more experts there that bid; but I got the goods.”

Huder this" evidence the jury found that Hinckley was liable for the value of the property and found the value of the property as a sufficient set-off to the amount of the notes, finding for the defendant. With this conflict as to the value of the property we are not disposed to question the correctness of that finding.

There was sufficient evidence to authorize the verdict. The motion for a new trial, as made in the Circuit Court, assigns the following reasons:

1st. “ That the court admitted at the trial improper evidence on the part of the defendant.”

2d. “ That tiie court permitted an instruction on the part .of the defendant to go to the jury without the same being submitted to the opposing counsel according to the rules of the court.”

3d. That the court permitted written evidence introduced on the part of the defendant to be handed to the jury and by them to be carried to the jury room.”

4th. “ That the verdict is contrary to the law and evidence in the case.”

The remaining error assigned here is, the court erred in giving defendant’s instruction. The giving of that instruction is only objected to in the motion for new trial, on the ground that it was not submitted to opposing counsel in accordance with the rules of court. The existence of such a rule is in no manner shown by this record, and as to the giving of that instruction it must, on the authority of O. O. & F. R. R. Co. v. McMath, 91 Ill. 111, be held that it can not be urged here for the first time, except on the ground of its not being submitted to opposing counsel, as that was the only objection taken in the Circuit Court.

Eo error appearing which will authorize a reversal the judgment is affirmed.

Judgment affirmed.


author: Green, J.

text:
    George Luft v. Auguste Gossrau.
    ' Beal Property—Title—Cloud—Levy upon Property of Another than Judgment Debtor—Amendment—Dee.ree—Injunction.

    1. An amendment touching matters occurring after the filing of a bill is allowable when no answer has been filed at the time leave to amend is granted and amendment made, and the allowance of such amendment can not be questioned by one against whom has been entered a decree pro confesso.

    2. Upon a bill praying that the sheriff be restrained from selling certain real estate not belonging to the judgment debtor, and that the plaintiff in execution be restrained from causing the same to be sold, and from attempting to enforce a levy thereon, or from embarrassing the title thereof, the sheriff having sold said property the day after the filing of the bill of complaint, and before he was enjoined, this court holds that the dismissal of the bill as to the sheriff after the sale, was proper, and that the decree in behalf of plaintiff was not inconsistent with, or broader than, the allegations and prayer of the bill as amended.
    [Opinion filed November 1, 1889.]
    Isr error to tlie City Court of Alton, Madison County; the Hon. James E. Dunnegan, Judge, presiding.
    Mr. Alexander W. Hope, for plaintiff in error.
    The decree is contrary to law. The only relief sought by this bill was an injunction to restrain the sale of a piece of real estate by the sheriff of Madison county. The theory of the bill was that complainant had the title to a piece of real estate and the sheriff was seeking to sell it under an execution against the complainant’s husband, and that the sheriff should be restrained from selling the same. The decree was illegal and void and could not he rendered 'under the theory and allegations of this bill. Ward v. Enders, 29 Ill. 519; Carter v. Lewis, 29 Ill. 503; Hall v. Towne, 45 Ill. 493.
    The decree is inconsistent with and entirely independent of both the frame of the bill and the relief sought. Hopkins v. Snedaker, 71 Ill. 450; Richards v. Green, 73 Ill. 54; Herdman v. Pace, 85 Ill. 345.
    The sheriff was a necessary party to the bill, and after the sale was made and bill dismissed as to the sheriff there- was no subject-matter left upon which a decree could be made or operated under the case made and relief sought by complainant’s bill. After the sale was made it took the wind completely out of complainant’s sails, and the only order that could be made was to dismiss this bill. Without supplemental bill no relief was possible.
    The decree was founded on a fact not alleged in the bill, nor in existence at the time the bill was filed—the deed from the sheriff of Madison county to George Luft, executed fifteeu months after sale and after bill was filed in this case. De Leuw v. Neely, 71 Ill. 473; Parkhurst v. Race, 100 Ill. 568.
    And finally the decree should be reversed for the rea-on that the complainant obtained by the decree more than she had asked in her bill. Carter v. Lewis, 29 Ill. 503; Burger v. Potter, 32 Ill. 66.
    There was no allegation in the bill that the sheriff of Madison county had executed and delivered a deed to George Luf't, conveying the real estate described in the bill, in pursuance of the threatened sale, according to the bill or the sale, according to the amendment;, yet the decree finds that the sheriff did give George Luft a certificate of purchase of said real estate described, and made, executed and delivered a deed conveying said real estate, and declares the sale of no effect, and sets aside the deed as null and void.
    For no principle of law is better settled than that the proof must fit the allegations and the allegations must fit the proof, because complainant can not make one case on the allegations of the bill, another on the proof, and still another on the decree. There is no foundation in the allegations of the bill to support the decree rendered. Morris v. Tilson, 81 Ill. 607; Kellogg v. Wilson, 89 Ill. 357; Kellogg v. Moore, 97 Ill. 282; Marvin v. Collins, 98 Ill. 510; Parkhurst v. Race, 100 Ill. 558.
    Matters arising subsequent to the filing of a bill are properly introduced by means of a supplemental bill, not by amendment. Burke v. Smith, 15 Ill. 158; Mix v. Beach, 46 Ill. 311; Puterbaugh’s PL and Pr., Ch., 3d Ed., 197-260.
    Mr. J. H. Yager, for defendant in error.
    It is the duty of a defendant in chancery to appear at the return day of the summons and interpose his defense, and failing to do so he is in default and the bill may be taken pro confesso against him. Grob v. Cushman, 45 Ill. 119.
    Where a bill is taken as confessed the court may render a decree and grant relief upon the pro confesso order. Grob v. Cushman, 45 Ill. 119.
    If a person is in court by due service as a party to a bill, and fails to interpose any defense, and a decree pro confesso is entered against him, such decree, however erroneous because the allegations in the bill are not positive or specific, or because the bill fails to show the complainant did not have an adequate remedy at law, is not void. Thompson v. Morris, 57 Ill. 334.
    Relief which is consistent with the facts stated in the bill will be granted under the general prayer, although not specifically prayed for. Stanley v. Valentine et al., 78 Ill. 544; Vansant v. Alimon, 23 Ill. 30; Hopkins et al. v. Snedaker, 71 Ill. 449.
    Prayer for general relief without a special prayer for the particular relief will be sufficient, and the particular relief, which the case requires, may, at the hearing, be prayed for. Story’s Eq. PI., 40. ■
    A party against whom a bill has been taken for confessed Can not complain and assign for error that the proof does- not sustain the allegations of the bill. Manchester v. McKee, 4 Gilm. 511.
    Matter introduced by amendment must not be matter which has happened since the filing of the bill (which is termed new matter), unless,.indeed, the defendant has not put in his answer, in which case the bill may be amended by adding supplemental matter. Story’s Eq: PL, 2d Ed., 676; Cooper’s Eq. PL, 332-3; Mitf. Eq. PL, by Jeremy, 207, 290,334; Daniell’s Ch. PL and Pr., 3d Ed., note 3, 407.
   Green, J.

On the 19th day of May, 1887, defendant in error tiled her bill in chancery to the September term, 1887, of the City Court of Alton, alleging she was the owner in fee of two city lots and obtained her title thereto July 25, 1885, and has ever since owned and been possessed of. said real estate; that on March 4,1887, George Luft recovered a judgment before a justice of tlie peace against T. Gustave Gossrau for $174, and on the 23d day of March, 1887, caused a transcript thereof to be filed in the office of the clerk of the Circuit Court of Madison County, and on the 28th day of April, 1887, Edward A. Burke, sheriff of said county, by virtue of an execution issued on said judgment, levied upon said lots as the property of T. Gustave Gossrau; alleges said defendant in execution has not, nor ever had any interest in law or equity in said real estate, and tlie same is not liable to levy and sale under said execution; that the sheriff is threatening to, has advertised for sale, and will sell said real estate under and by virtue of said execution, unless restrained by injunction, and if permitted to sell and file certificate of salé it would cloud and cast suspicion upon complainant’s title; that said levy, advertisement and threatened sale were instigated by said George Luft, for the purpose of injuring and harassing complainant, and with the fraudulent intention of casting suspicion and cloud upon her title. Burke,, the sheriff, and Luft, are made defendants, and the relief prayed is that Burke as sheriff be restrained from selling said real estate under said execution, and Luft be restrained from causing the same to be sold and from attempting to enforce said levy, or from embarrassing the title of complainant to the same, and for such other and further relief in the premises, as shall be agreeaVe to equity and good conscience. ISTo injunction was in fact issued and defendant, Luft, as appears by the decree, was served with summons more than ten days before said September term, A. D. 1887. At the February term, 1888, complainant dismissed her bill as to Burke, and by leave of the court the bill was amended by inserting that said sheriff on May 20, 1887, sold said real estate under the execution mentioned, to said Luft, of the debt, interest and costs recovered. At the same term the bill tvas taken pro confesso and that order was afterward at the same term set aside. On the first Monday of the September term, 1888, no answer having ever as yet been filed on behalf of Luft a decree pro confesso was entered, and on the second Thursday of same term the cause was referred to a special master to take and report the proof, wdiich he did, and afterward at the same term the final decree was entered. In this decree the court finds defendant, Luft, was duly served with process ten days prior to first day of September term, 1887; recites dismissal as to Burke, amendment to bill by leave of court (setting out amendment in full), default of Luft, and entering of a decree pro confesso, and by special findings, not necessary to repeat here, finds the allegations of the bill, as amended, true ; finds that Burke, as sheriff, on August 25, 1888, ‘made and delivered deed for said real estate to Luft as purchased at said execution sale, which deed was recorded in the recorder’s office of Madison county, and orders and decrees said sale be set aside and held for naught; that no title or interest in or to said real estate has vested in Luft by virtue thereof; that said certificate of purchase and sheriff’s deed be set aside and adjudged null and void, and Luft and all persons claiming under him since the commencement of the suit be barred from all or any title, interest or claim in or to said real estate, and that the title thereto is in complainant, Auguste Gossrau. Mo effort was made by, or on behalf of Luft to open or set aside this decree, from the time of its rendition until the suing out of this writ of error, and no suggestion or claim is now made ; that the decree was not right upon the merits of the case, or that any one other than complainant had any title or interest in said lots at the time Luft recovered his judgment. But we are asked to reverse this decree, because it does not appear complainant had leave to amend her bill, and if she obtained such leave the court erred in permitting an amendment incorporating matters occurring after the filing of the bill, which could only be properly introduced by supplemental bill; that the sheriff was a necessary party, and after the sale had been made and the bill dismissed as to him there was no subject-matter left upon which a decree could operate under the case made and relief sought by complainant’s bill; and finally, the relief granted by the decree is inconsistent with and broader than the allegations and prayer of the bill. We find by the record that in the bill it is directly alleged, “at the February term, A. D. 1888, the complainant came and by leave of the court amended this bill by inserting,” and here follows the amendment, and in the decree is recited the fact that such amendment to the bill was made by leave of the court; thereby it sufficiently appears to us, the bill was so amended by leave of the court and touching the objection to permitting such amendment, the rule that matters occurring after the bill is filed can not be added by amendment, is subject to the exception that if no answer had been filed at the time leave to amend was granted and amendment made, it was proper to allow such matters to be added by way of amendment. 1 Daniell’s Chy. Pld. & Prac., 5 Am. Ed., See. 407 et seq. and notes. Story’s Eq. Pld., 8th Ed., Sec. 885. In this case, Luft having failed to answer at all, and the decree pro confesso as to him having been entered, he is in no position to challenge this ruling of the Circuit Court. We also fail to perceive the necessity for retaining the bill as to the sheriff, or "that the dismissal of the bill as to him was error or left the cause in a condition that there was no subject-matter upon which the decree could operate. True, one purpose of the original bill was to restrain the sheriff from selling the real estate, but on the day after the bill, was tiled and before he was enjoined, he had made the sale; and having no interest or title then in the property, or any rights involved, and the relief against his acts being only incidental to" the substantial relief prayed for, and having been thus defeated, he was no longer a necessary party to the bill or amended bill. And finally, we are of opinion the relief granted by the decree was not inconsistent with or broader than the allegations and prayer of the bill as amended. It was not a single bill for "injunction mere!y; its scope and purpose were much broader; the prayer was not only that Luft might be restrained from embarrassing complainant’s title, but for such other and further relief in the premises as in equity she was entitled to. She was the sole owner of the lots; as was alleged, her property had been wrongfully sold to Luft by the sheriff to satisfy an execution against one who had no title or interest in the lots, and these facts were alleged and proved. Her title had a cloud and suspicion cast upon it by this1 sale and the sheriff’s certificate and deed to Luft, appearing of record, and she was entitled to own, possess, enjoy or dispose of her said real estate with her title thereto unembarrassed by, and relieved from, this cloud upon it, placed there by the wrongful acts of Luft. Hence the fulFand perfect relief in the premises asked for, and to which in equity she was entitled under the general prayer, could be given her only by decree setting aside and adjudging void said sale, certificate and deed to Luft, and decreeing the title to said lots to be in complainant; the decree in this case granting such relief was right and is affirmed. Judgment affirmed.


author: Reeves, P. J.

text:
    School Directors v. Ruby Kimmel.

      Schools—Master and Servant—Contract of Sen-ice—Teacher—Breach by Antic¡2)ation by Employer—Eailure of Cleric to Note Proceedings of School Board—Parol Evidence—Instructions—Damages—Execution.

    1. Upon the failure of the clerk of a school board to make a minute of its t.ction upon the official record, with reference to the employment of a teacher, parol evidence is admissible to prove what took place.
    2. In an action brought to recover damages for the breach, by anticipation, by a board of school directors, of a contract entered into by them with a teacher, this court declines to review the action of the trial court in overruling defendants’ demurrer to the declaration, and holds that such action can not be reviewed upon motion in arrest of judgment, the defendants having pleaded over and gone to trial.
    3. The rule of damages in such case is, prima facie, the wages agreed to be paid, less what plaintiff might, by the exercise of reasonable diligence, have earned, or actually did earn in the same line of employment, and the burden of showing what plaintiff did or might have earned is on the defendant.
    4. Where the trial court improperly awards an execution, such order may be reversed, without a reversal of the judgment.
    [Opinion filed November 8, 1889.]
    Appeal from the County Court of Jackson County; the Hon. W. W. Barr, Judge, presiding.
    Mr. William A. Schwartz, for appellant.
    It will be seen the declaration leaves out the range, which the statute makes one of the requirements to a suit where a school district is a party, either plaintiff or defendant. With the range left out no court can judicially know whether the district is in range 1, 2, 3, 4 or 5 of Jackson county. The fact that the names of the directors are mentioned can not help the omission, or locate the district, for the reason that the individual names of the directors are surplusage, and the corporation is the defendant. Botkin v. Osborne, 39 Ill. 107; Shoudy v. School Directors, 32 Ill. 290. The statute in such case must be observed, although it may seem to be a trifling matter, for school districts are creatures of the statute, and the statute must be followed. School Directors v. Jennings, 10 Ill. App. 643; Clark v. School Directors, 78 Ill. 474.
    The" demurrer should have been sustained for another reason, which is, the declaration does not aver the alleged employment of appellee was at a regular or special meeting of the board of directors. The statute provides the board of directors shall hold regular meetings at such times as they shall designate, and they may hold special meetings as occasion may require at the call of the president, or any two members, and no official business shall be transacted by the board except at a regulan or special meeting. Starr & C. Ill. Stats., Chap 122, Sec. 43.
    In School Directors v. Jennings, 10 Ill. App. 643, the court say this statute must be recognized as placing limitations upon the power of school directors to perform official acts. It is the duty of appellee bjr necessary averments in her declaration to bring her case within all of the statutory requirements. The position taken by appellant goes to the substance of the declaration. If the points contended for are tenable the general demurrer should have been sustained and not overruled. 1 Chit, on PL, 661.
    In Smith v. Curry, 16 Ill. 149, the court say that where it was not sét out in the declaration that the plaintiff presented her certifícate of qualification to the directors before the school commenced it was so fatal that the defect was not cured by verdict. To the same effect are Botkin v. Osborne, 39 Ill. 107; Casey v. Baldridge, 15 Ill. 65.
    Mr. Jonathan F. Taylor, for appellee.
    The act of 1857 said of the teacher : “Before his employment he shall exhibit to said board a certificate of qualification.” Sec. 52 of act of 1857.
    The act of 1874 entirely changed the statute law, and subsequent decisions wholly incompatible with former decisions of the same court are still in harmony with living statute law of the Sfate. The statute now says: “Ho teacher shall be employed to teach any school, under the control of any board of directors, who shall not, at the time of his employment, have a certificate of qualification entitling him to teach.” See. 53 of Chap. 122, Starr and C. Ill. Stats.
    Therefore, under the present statute, it is only necessary to allege and prove that at the time the contract was made the teacher had a certificate to teach school, obtained under the provisions of law, extending to the end of the time for which the school shall last. Stevenson v. School Directors, 87 Ill. 255 ; Directors v. Jennings, 10 Ill. App. 644 ; Wells v. Daniels, 71 Ill. 532.
    To us it seems clear that no reversible error arises from the rulings of the court as to the admissibility of the evidence.
    . Section 42 of chapter 122, requiring the proceedings of boards of directors to be written in a book to be kept for that purpose, and to be signed by the clerk and president of the board, is only directory. Were it otherwise, no teacher would have in his power the means of contracting to teach school, as he woidd have no power to compel the clerk to write up the proceedings in the book and sign it. If the record be the only evidence admissible, a written contract, duly signed by the who!e board and the teacher, at a regular meeting, would be inadmissible. Such an idea is impracticable ; and such a rule of law would be revolutionary in the extreme.
    Dillon on Municipal Corporations says: “ Unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence, parol evidence is admissible to prove things omitted to be stated on the record. Dillon on Municipal Corporations, Sec. 237; Bank, etc. v. Danbridge, 13 Wheat. 64.
    It does not follow that while a corporation can only enter into a contract while in regular or special session, therefore the evidence of all contracts must be proven by a record of the fact upon the minutes. County of Vermillion v. Knight, 1 Scam. 101.
    Corporations can be bound by contracts, though not under seal, by implied contracts, without a note, deed or other writing. New Athens v. Thomas, 82 Ill. 259.
    Parol evidence is admissible to prove a corporate act, though it is not entered on the minutes of the proceedings of the board. Bartlett v. Board of Education, 59 Ill. 364; Ryan v. Dunlap, 17 Ill. 40.
    Objections to evidence, or questions propounded which might have been obviated, must be specifically made on the trial, or they can not be urged on appeal or error. Royal Templars of Temperance v. Card, 111 Ill. 284.
    When a demurrer to a declaration is overruled, if defendant wishes to obtain a review of the judgment of the court he must stand by his pleading in the court below: otherwise, if he pleads over, he will be precluded from assigning the judgment thereon for error. Pullman v. Barrett, 18 Ill. App. 573; Lowy v. Andreas, 20 Ill. App. 521.
   Reeves, P. J.

Appellee brought suit against appellants to recover for a breach of an alleged contract by which appellants hired her to teach the school in said district for a term of six months at $35 per month. She averred that she was ready and willing, and offered to perform this contract, but appellants refused to permit her to teach the school, and in consequence she had suffered damages to the amount of $210, for which sum on a trial of the cause she recovered a judgment, which appellants seek to reverse. The first error assigned is, that the trial court erred in overruling the demurrer to the declaration. As appellants pleaded over when their demurrer was overruled, we fail to see how the action of the court in overruling the demurrer can come before us for review. The second error is, that improper evidence was admitted by the trial court. This will be considered in coi - nection with the third and fourth assignments of error, which touch the merits of the controversy, and assert that the plaintiff did not, by legal evidence, make out a cause of action. The regular monthly meeting of the board of directors of this school district was held on the 26tli day of May, 1888, at the house of Mr. Lirely, one of the directors. At this meeting appellee was present, and made a personal application for the school. Block, one of the directors, sent to this meeting his resignation of his office.' Lirely and Wiley, the other directors, were present. Their first act was to accept the resignation of Block, and order an election to fill the vacancy. Then the contract for building a new school house was let. Wiley was clerk of the board, and in the minutes kept by him,-these acts only are noted. Lirely swears that after the contract for the new school house was awarded they then proceeded to consider the application of teachers. The matter was discussed, and, as he says, the proposition of appellee was accepted, and she was notified then and there that she could consider herself employed upon the terms of her proposal, school to commence the first Monday in September, and continue for six months, at §>3o per month. Appellee, her father, who was also present, Charles Lirely, a son of the director, and Mrs. Ingram, fully corroborate the director, Lirely; and Mr. Freeman, who was also present, and an applicant for the school, says.he got the impression that appellee was employed to teach the school. Mr. Wiley, the other director, swears that he told Mr. Lirely when the subject of employing a teacher was brought up, that he could not consent to hire a teachér until a new director was elected to fill Block’s place; that all he said to appellee was, that he “felt favorable to her application, but would not employ a teacher until a new director was elected.” On the 2d day of June, 1888, Mr. Wiley wrote to appellee as follows: “ I withdraw my decision in regard to your application for teaching our school, until we elect our new director and have a meeting.” Under this testimony it could not be seriously contended but that the clear weight of the evidence is, that at the meeting of the directors held May 26, 1888, appellee was engaged to teach the school for the district for six months at §35 per month. But it is contended that the action of the board of directors could only be shown by the record, kept by the clerk, of the acts of the board. The provision of the statute relied on is in these words: “ The directors shall appoint one of their number president, and another of their number clerk, who shall keep a record of all the official acts of the board in a well-bound book provided for that purpose, which record shall be submitted to the township treasurer,” etc.

It is shown that Mr. Wiley, who was the clerk of the board; did not have the record with him at the meeting of May 26th, and simply kept a memorandum of the action of the board at that meeting on a piece of paper, which he afterward copied into the record. He testifies that he made no minutes of action in regard to the employment of a teacher for the reason that there was no such action. The parol proof clearly establishes that there was such action, and the question to be considered is, whether his failure to make a minute of the action of himself and Mr. Lirely in this matter, will defeat the action of the board and appellee’s cause of action. The statute does not make the record kept by the clerk the only evidence of the action of the directors, and unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence, parol proof is admissible to prove things omitted to be stated on the record. Dillon on Municipal Corporations, Sec. 237. While a corporation can only enter into a contract at a regular or special session of its board of directors, it does not follow that only the record of the proceedings kept by its clerk can be used as evidence to prove that a contract was entered' into-County of Vermillion v. Knight, 1 Scam. 101; Bartlett v. Board of Education, 59 Ill. 364; Ryan v. Dunlap, 17 Ill. 40.

The fifth error assigned is, the overruling of the motion in arrest of judgment. Having demurred to the declaration, and thereby invoked the judgment of the court as to the sufficiency of the declaration, and that judgment having gone against the defendant, and then he pleaded over, he can not afterward, by a motion in arrest of judgment, have the former judgment of the court reviewed by the court. Tidd’s Practice, 918. 1 Strange, 425-6; Taunton, 650; 2 Marsh (S. C.), 326; 6 Moore, 209; Express Co. v. Pinckney, 29 Ill. 405; Quincy Coal Co. v. Hood, 77 Ill. 68; Independent Order of Mutual Aid v. Paine (Ill.), 14 N. E. Rep. 42. In the last case the court say: “ There is probably no principle of law more elementary in its character or better established than that such motion is not available under the circumstances stated,” which were that there was a demurrer to the declaration, demurrer overruled, defendant pleaded over, trial and verdict for plaintiff, and a motion in arrest on account of the insufficiency of the declaration. We know of no authority denying this to be the rule or holding that there is any exception to it, except the case of People ex rel. Webber v. Springs Valley, Ill., 21 N. E. Rep. 843. In that case, after stating the rule as above, it is added: “But if the declaration be so fatally defective as not to support the judgment, that may be availed of by a motion in arrest, or on error, even after a demurrer thereto has been overruled and the defendant has pleaded over.” The case before us does not come within the stated exception. Had defendants stood by their demurrer when it was overruled, they could then have brought the case to us in such condition that we could have examined and determined the sufficiency of the declaration. By pleading over they waived that question. Complaint is made of the amount of the recovery. This is a suit for a breach of a contract of hiring, where the employe was not permitted to enter upon the performance of the contract. The rule is in such a case, that the wages agreed to be paid is, prima facie, the measure of recovery, but this may be reduced by the defendant showing what the plaintiff actually earned, or might have earned by reasonable diligence in seeking work in the same line of employment. Howard v. Daly, 61 N. Y. 362; Polk v. Daly, 14 Abb. Pr. A. S. (N. Y.) 156 ; Costigan v. Mohawk Valley R. R. Co., 2 Davis, 609 ; Wood’s Master and Servant, 238; .Brown v. Board of Education, decided at February term, 1888, of this court. There is nothing shown by defendant’s testimony in this case that would reduce the prima facie measure of recovery. The trial court, after the entry of judgment, awarded execution against defendant. This was error, which can be corrected by a reversal of the order awarding execution, which is done, and the judgment as it will stand with the order for execution reversed, is affirmed.

Judgment affirmed.


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    Louisville, Evansville and St. Louis Railroad Company v. Jennie Harlan.

      Practice—Bill of Exceptions—Judgment—R miittitur—New Trial.

    1. This court will not be justified in considering the finding of the trial court, where the bill of exceptions does not purport to contain all the evi„ dence.
    2. This court will not consider a complaint alleging the admission of improper evidence when primarily made herein.
    3. A judgment for a larger sum than is claimed may be cured by a remittitur in this court of the excess.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.
    Mr. J. R. Creighton, for appellant.
    Hessrs. Hanna & Hanna, for appellee.
   Reeves, P. J.

The bill of exceptions incorporated in the record in this case, does not purport to contain all the evidence heard by the court below. The rule is too well established to be disregarded, thatwhere the bill of exceptions does not state that it contains all the evidence heard by the trial court, the Appellate Court will not be justified in looking into the record to determine whether the finding of the trial court was correct or not. Nimmo v. Kuykendall, 85 Ill. 476; James v. Dexter, 113 Ill. 654.

As to the first error assigned, that the court admitted improper evidence on the part of plaintiff, in looking into the record, we do not find any objection by the defendant to any of the evidence offered by the plaintiff. The' last error assigned, that the judgment was for §150 when plaintiff’s evidence only claimed §135, is cured by the appellee entering in this court a remittitur of §15. No proposition of law was submitted to the trial court, the case having been tried by the court without a jury; therefore no question of law is before us aside from what might have arisen on the action of the court in overruling the motion for a new trial, had the bill of exceptions been made up, so that we could have looked into the bill of exceptions to see if the plaintiff, under the law, had made out a case; but, as we have seen, from this inquiry we are precluded, by the failure of the bill of exceptions to state that it contained all the evidence heard by the trial court.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Wendelin Huschle v. Harry Morris.

      Replevin—Sale—Chattel Mortgage—Retention of Possession by Mortgagor—Evidence—Instructions.

    1. The jury may be instructed to find for defendant, where the evidence given, with all the inferences that they can justifiably draw from it, is so far insufficient to support a verdict for plaintiff, that such a verdict, if returned, must be set aside.
    2. In an action of replevin brought to gain possession of a stock of goods attached as (he property of another, the contention being that the same were previously sold and conveyed to plaintiff, this court holds that there was no such transfer thereof prior to the levy of the writs of attachment as was necessary to sustain the title of the claimant as against the attaching creditors; that in view of the chattel mortgage thereon running to said claimant, his allowing the mortgagor to remain in possession upon the understanding that he was to continue retailing the goods so covered, rendered the mortgage fraudulent as to said creditors; that the mortgage having been made on the day of the alleged sale, was properly admitted in evidence as a part of the transaction; that it was proper to allow the cross-examination of the mortgagor as to the same; and that, in the light of the evidence, it was not erroneous on the part of the trial court to direct the return of a verdict for defendant.

      [Opinion filed November 1, 1889.]
    Appeal from the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.
    Mr. William P. Launtz, for appellant.
    Mr. Alexander Flannigen, for appellee.
    The chattel mortgage in this case as to the store of goods was fraudulent and void as a matter of law.
    Where there is license to sell, whether such provision is disclosed by the mortgage or outside of it, as a matter of law the mortgage is void. Dunning v. Mead, 90 Ill. 376; Greenebaum v. Wheeler, 90 Ill. 296; Davis v. Ransom, 18 Ill. 396; Barnett v. Fergus et al., 51 Ill. 352; Simmons v. Jenkins, 76 Ill. 479.
    This transaction, as against creditors, lacks one of the first essentials of a valid sale, viz., delivery of possession.
    This property was never for a moment out '■of the actual possession of Recker until it was levied upon by appellee and others under suits of attachment. All sales of personal property, where possession is permitted to remain with the vendor, are fraudulent fer se and void as to creditors and subsequent purchasers, unless retaining possession be consistent with the deed or bill of sale. Rozier v. Williams, 92 Ill. 187; Lefever v. Mires, 81 Ill. 456; Broadwell v. Howard, 77 Ill. 305; Dunlap v. Berry, 4 Scam. 327; Thompson v. Wilhite, 81 Ill. 356; Lewis v. Swift, 54 Ill. 436; Ticknor v. McLelland, 84 Ill. 471; Burnell v. Robertson, 5 Gilm. 282; Curran v. Bernard, 6 Ill. App. 341; McCann v. Meyer, 4 Ill. App. 376.
    In Wells v. Whittaker, 4 Ill. App. 381, the court say: “No sale of personal property as to third persons will be effectual to pass the title unless actual delivery accompanies the sale, or unless there be some memorandum in writing acknowledged and recorded in accordance with the provisions of the chattel mortgage act.”- There was no such del ivery as the law requ i red in this case. No act was done to notify the public that any change of ownership had taken place. Everything that was done was in a secret manner. JSTo one present but the appellee and Recker.
    Any absolute sale of personal property, where it remains with the vendor, if it is that character of property that is capable of being removed, is fraudulent in law as to creditors and subsequent purchasers, notwithstanding the sale may have been in good faith and for an adequate consideration. Thompson v. Wilhite, 81 Ill. 358.
    In Ticknor v. McLelland, 84 Ill. 474, the court say: “ The policy of the law in this State will not permit the owner of personal property to sell it and still continue in possession of it. Possession being one of the strongest evidences of title to personal property, if the real ownership is suffered to be in one, and the apparent ownership in another, the latter gains credit as owner, and is enabled to practice deceit upon mankind. It is the well established doctrine of this court, that an absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent jper se and void as to creditors and purchasers.”
    In Thompson v. Yeck, 21 Ill. 73, the court say: 1 “This court has adopted the rule in Thornton v. Davenport, 1 Scam. 266, and in several other cases, that all conveyances of goods • and chattels, when the possession is permitted to remain with the donor or vendor, is fraudulent of itself and void as to creditors and purchasers, unless the conveyance itself stipulates for such retaining possession by the vendor or donor, and the same was held in a case arising under our chattel mortgage act.” Reed v. Eames, 19 Ill. 595.
    In all cases the change of possession must be substantial and exclusive. In Rhines v. Phelps, 3 Gilm. 464, the court say: “In the case of Thornton v. Davenport, 1 Scam. 296,-the rule is held to be that all conveyances of goods and chattels, where possession is permitted to remain with the vendor, are fraudulent jper se and void as to creditors and purchasers, unless the retaining of the possession be consistent with the deed and that absolute sale of personal property.”
   Reeves, P. J.

George H. Recker, prior to August 8,1887; was the owner of a stock of groceries, provisions, etc., in East St. Louis. On that date he claims he sold the stock of goods to his father-in-law, appellant. Shortly afterward, the stock was levied upon by writs of attachment at the suit of creditors of Becker. Appellee made the levy as a constable; appellant replevied the goods from appellee, and this is that suit. The result of the trial in the city court was a judgment in favor of appellee. . Upon the trial the city court instructed the jury to find a verdict for the defendant, and. the giving this instruction is the chief complaint of appellant.

We understand the rule to be, where the evidence, given at the trial, with all inferences that the jury could justifiably draw from it, is so far insufficient to support a verdict for the plaintiff that such a verdict, if ‘returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for defendant. There may be some evidence tending to support plaintiff’s case, but if this evidence be such that the jury could not, in the eye of the law, find in his favor, the court may instruct the jury to return a verdict for the defendant. Simmons v. O. & T. R. R. Co., 110 Ill. 840.

It remains to be determined whether such an instruction should have been given in this case.

Becker, after detailing his indebtedness to appellant, testified, in answer to a question as to what he did when he turned the store over to appellant—“I owed him this amount right along, and later on he asked me for some wav- of being secured. Of course the amount was getting large, and I guess—I don’t know whether he was getting afraid or not; at least he asked to be secured. I said I had no objection, so I asked if amóte would do, and he says no, that is not sufficient, that I should give him something else ; so I says, make out" a mortgage with a note, and so on the 8th day of August we made out a note and mortgage, and I asked him what should be done with .the store. Then he says he would have to—well he thought •I had better run it as his agent because he did not understand thé business.” The note and mortgage above referred to was introduced in evidence and proved to be a note -for $1,000, dated August 8, 1887, due two years after date, made by Becker to appellant, and the mortgage, a chattel mortgage, given to secure this note on the stock of goods in the store. The proof further shows that Becker continued in charge of the store,' selling the goods from the stock, with no visible change in the possession. Becker further testified that appellant was still the holder of the note, and that no portion of it had been paid. Appellant testified in answer to the question, who was in possession of the store at the time the writs of attachment were levied—“ I told Mr. Becker, you understand the business, you can run the store. 1 made no other bargain, but I don’t know law, so I told him just to keep on running the store. I told him to pay his debts, that was all I cared. Becker run the store in my name as agent; the bills all come to me what have to be paid. He paid the bills, but the bills first be sent to me.”

It must be remembered that the writs of attachment were levied very shortly after the chattel mortgage was given, and it very clearly appears from the cross-examination of appellant that what he says as to Becker running the store as his agent, and the bills for goods bought being sent to him, made out in his name, all relates to the condition of things that existed after the levy of the writ of attachment and the replevin of the goods by appellant. Conceding all that this evidence tends to prove, it does not seem that there was any such transfer of the possession of ■ the stock of goods from Becker to appellant prior to the levy of the writs of attachment, as was necessary to sustain the title of appellant to the goods as against the creditors of Becker. It clearly appears that these parties supposed that the chattel mortgage, which provided for Becker retaining the possession of the goods, afforded appellant the security which he desired. As to the stock of goods, from which sales were being made from day to day, the chattel mortgage did not protect appellant against the claims of creditors of Becker. Permitting the possession of the goods to remain in Becker, with the express understanding that he was to continue the business of selling the goods at retail, rendered the chattel mortgage fraudulent as to the creditors of Becker. The making and recording of the chattel mortgage fixed the character of the transaction between Becker and Husclde, and the testimony of these parties, instead of changing the transaction from a mortgage to a sale, rather corroborates what the making and recording of the mortgage stamped the character of the transaction to be. But waiving this, upon the question of the transfer of the possession of the stock of goods, on the 8th day of August, all the evidence with all the inferences that a jury could justifiably draw from it, is so far insufficient to sustain a finding that there was such a change of possession as the law requires as against creditors of Becker, that such a finding, if made, would have to be set aside. In this condition of the evidence it was proper for the court to direct the jury to return a verdict for the defendant.

It is also contended that the trial court erred in permitting the chattel mortgage to be given in evidence, and in allowing appellee to cross-examine Becker in reference to it. It is shown that the chattel mortgage was given on the same day that the alleged sale of the stock took place, and was very properly allowed to go in evidence as part of the transaction between the parties on that day. It was the very strongest evidence to contradict the claim of an absolute sale. Becker had stated in his examination in chief that he had, on August 8th, given appellant a note and mortgage, and this statement gave appellee the right to cross-examine him fully and particularly in regard to it. ■

Finding no error in the record of the proceedings of the city court its judgment is affirmed.

Judgment affirmed.