text:
    John Stelzich v. Jacob Weidel et al.

      Trust Deed — Equitable Assignment — Foreclosure—Defect of Parties— Practice — Estoppel.
    1. The delivery, without a written assignment, of an agreement and trust deed to a third person who has paid the sum secured thereby, at the request of the grantor in the deed, constitutes such third person the equitable assignee thereof and entitles him to maintain a bill for foreclosure.
    2. A bill should not be dismissed for want of equity, where there is merely a defect of parties.
    3. In the case presented, it is held: That the court below should have directed an amendment to the bill so as to make others, who made advances, parties complainant, and the assignor of the agreement and trust deed a party defendant; that the bill should have contained an allegation that the complainant had elected to declare the whole amount secured by the trust deed due; and that the court below improperly dismissed the bill for want of equity.
    [Opinion filed August 8, 1888.]
    In error to the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Jones & Lusk, for plaintiff in error.
    Messrs. William Yooke and H. Storck, for Frank J. Miller, defendant in error.
   Moran, P. J.

On September 20, 1880, Jacob Weidel borrowed from the Bohemian American Building, Loan and Homestead Association, the sum of $2,600, and gave to said association an agreement in and by which he promised to pay $6.50 every week, until said principal sum, together with 8 per cent, interest per annum thereon, should be paid.

As security for the performance by him of said agreement, he executed a trust deed on certain real estate situated in Cook County to one Albert Silba, which trust deed was duly recorded in the recorder’s office in Chicago. Weidel made the weekly payment required by the agreement until he had reduced the amount owing to the association to $1,600, when, in February, 1884, lie applied to one Belohradsky, who was at the time secretary of the said building and loan association, for a loan of $2,000, with part of which he desired to pay off the $1,600 due to the association. Belohradsky procured • said Weidel to execute a judgment note for $2,000, and to secure jt by a trust deed upon the same property on which the agreement to the association was secured, and, after deducting certain costs and fees, gave to Weidel about §154, and promised to pay to the association the §1,600, but, instead of doing so, sold the note and trust deed to one Wittner and let the money due the association stand. Afterward the amount so due was reduced by payments made by Weidel and B el obrad sky to the sum of §805. Then Weidel made an agreement with John Stelzich, the appellant, to pay to the association the said balance of §805 due on the agreement, as he could not pay it himself and the association threatened to foreclose under the trust deed. Stelzich and Weidel went to the meeting of the association and Stelzich paid then §400, and afterward the balance due, at Weidel’s request.

This agreement between Stelzich and Weidel was submitted to the society at the meeting, and when the whole amount was paid by Stelzich the association gave the mortgage to him at the request of Weidel. Weidel subsequently sold the real estate described in the trust deed to Frank J. Mueller, one of the appellees, subject to all liens, and Mueller refusing to pay to Stelzich the amount due to him upon the agreement turned over to him by the society, Stelzich filed his bill in the Superior Court to foreclose the trust deed given to Silha to secure the said agreement, and made Weidel and his wife, and Wittner, Mueller and one Podolsky parties defendant. Albert Silha was made party defendant by amendment but was not served. On the hearing the foregoing facts being shown by complainant’s evidence and being wholly uncontroverted appellant’s bill was dismissed for want of equity.

To sustain the decree it is urged on the part of appellee, Mueller, that it is not shown by the evidence that the agreement with the association was turned over to Stelzich, and that the delivery to him of the trust deed would not amount to assignment of the debt. The record shows that the trust deed and agreement were offered in evidence by the complainant, and in connection with the introduction of them in evidence Stelzich testified that he was the owner of them. It is true that in one part of the evidence he states that the mortgage was given to him by the association when he had paid the money due on the agreement, but we think it clear that by the term “ mortgage ” he intended to include both the trust deed and the agreement, for in the same connection he states Weidel’s request to the association that the papers should be given to him (Stelzich). Our conclusion on that point is, that the agreement, as well as the trust deed, was delivered to Stelzich by the association at Weidel’s request when the sum of $805 had been paid by Stelzich, but that there was no written assignment of the agreement.

By the transaction Stelzich became the equitable assignee of the agreement, and, though it was necessary that the building and loan association should be made a party defendant to the bill to foreclose, yet the fact that it was not a party would not authorize the court to dismiss the bill for want of equity. The court should have directed the amendment of the bill in that respect.

It is further contended, that the evidence tends to show that the wife and son of Stelzich have an interest in the subject-matter, as they appear to have furnished some of the money paid by Stelzich to the association. We are inclined to think that the wife and son of Stelzich should be joined with him as parties complainant to the bill, but the failure so to join them would not, under the evidence in the case, axxthorizc the dismissal of the bill, for it clearly appears that Stelzich has an interest to assert which woxxld authorize his filing the bill. The court should have directed the amendment of the bill so as to have brought in the wife and son of Stelzich either as complainants or as defendants, and if the rxxle to amend the bill was not complied with, then the com*t could dismiss the bill for failure to comply with the order to amend, but not for want of equity.

It is also ui'ged that it is not shown that the whole indebtedness under the agreement had become due, as it is not shown that the building association had exercised the option to declare it due. The trust deed provides, “that if defaxxlt is made in the payments of said agreement, or any part thereof, then, and in such case, the whole of said principal sum and interest secured by the said agreement shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable,” etc There is no allegation in the bill that pursuant to the provisions of the agreement, complainant had elected to consider the whole amount due, and while no notice prior to the filing of the bill is necessary, yet the bill should contain such a declaration. Harper v. Ely, 56 Ill. 179; Johnson v. Van Velsor, 43 Mich. 208.

As Stelzich is the equitable assignee of the agreement, he may exercise the option in the same way as the original holder thereof might do. Harper v. Ely, supra.

But like the other defects in the bill, this one did not authorize its dismissal for want of equity, for there was clearly, a considerable amount due and in arrear under the terms of the agreement, and the court could have granted a foreclosure for such amount as was due at the time the decree was entered., Johnson v. Van Velsor, supra.

It appears to have been contended in the court below that Stelzich was estopped from proceeding to foreclose this trust deed against the appellee, Mueller, on account of a certain statement made by Stelzich to Mueller’s attorney before Mueller purchased the property, and which statement was taken down in writing by said attorney.

It is not contended in this court that any such estoppel arises, and an inspection of the statement, as it is set forth in the record, shows that, so far from its estopping Stelzich by anything contained in it from setting up his claim against the real estate, the statement gave to Mueller and his attorney the most explicit notice of Stelzicli’s right in the premises. This statement alone, if taken as true without further evidence, would establish complainant’s right to relief as against Mueller.

On the merits of the case we think the equity is plainly with the appellant, but as the new parties who must be brought in will have the right to offer evidence as to their particular interests, we will not direct a decree.

The decree of the Superior Court will be reversed and the case remanded to that court, with directions to that court to require the bill to be amended in the particulars specified, and all the new parties served, including Silba, and when the said matter shall reach an issue, to let the cause be heard according to the practice of the court.

Meversed and remanded.


source: Caselaw Access Project

author:
Bailey, J.
      Per Curiam.

license: Public Domain

text:
    The Hamburg American Packet Company vs. Regina Gattman.

      Carriers — Failure to Deliver Goods — Action for Damages — Liability—■ Termination of — Seizure by Customs Officers — Damages—Whether Excessive.

    In an action against a steamship company to recover damages for the fiiilure of the defendant to carry a certain box of goods from Hamburg to New York and deliver the same to the plaintiff, it is held,: That it was the duty of the defendant to deliver the goods at New York to the plaintiff; that its liability as a common carrier continued for a reasonable time to enable the plaintiff to claim and take possession of her goods; that there was no want of diligence on her part; that npon the defendant’s theory of the facts the seizure by the customs officers resulted from the wrongful act of a mere intruder before the termination of the defendant’s liability as a common carrier; (hat this court can not set aside the verdict as excessive, the evidence being conflicting and two juries having reached substantially the same result.
    [Opinion filed December 14, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Moses & Hewman, for appellant.
    Messrs. Byaai, Parkhurst & Weinschenk, for appellee.
   Bailey, J.

This was an action on the case, brought by Regina Gattman against the Hamburg American Packet Company, to recover damages for the failure of said company to carry a certain box of goods belonging to the plaintiff from Hamburg, Germany, to the City of Hew York, and deliver the same to the plaintiff at Hew York, whereby said goods became lost to the plaintiff. The declaration consists of four counts, three of which allege the delivery of said goods by the plaintiff to the defendant to be carried and delivered as aforesaid for certain reward, the failure of the defendant to so carry and deliver the same, and the consequent loss of said goods, the other count being an ordinary count in trover. The trial before the court and a jury resulted in a verdict in favor of the plaintiff for §1,604.30, and for that sum and costs the plaintiff had jxidgment.

In the early part of February, 1883, the plaintiff, being about to emigrate from Bnda Pestlx, Hungary, her former place of residence, to the United States, packed such goods as she desired to take with her in nine boxes, numbering them consecutively from 1 to 9, and forwarded to the defendant at Hamburg to be shipped to Hew York. The plaintiff arrived at Hamburg and sailed February 14, 1883, as a steei-age passenger on the defendant’s steamship Wieland, bound for Hew York. But four of her boxes, viz., those numbered from 1 to 4, arrived at Hamburg in time to be shipped by the Wieland, the other five being shipped a few days later by the defendant’s steamship Hammonia. All of said boxes arrived ixt Hew York and were there ultimately delivered to the plaintiff except box number 1.

The plaintiff was accompanied by her daughter Clara Pliillipsborn and two children, her son Henry and two other young women, all of whom eame with her from Bnda Pesth. It appears that the Wieland lauded at Hoboken, and that the steerage passengers, including the plaintiff and her party, together with their baggage and effects, were there placed on a steam barge and taken over to Castle Garden, Hew York. The plaintiff %x’as met at Hoboken, by Maximilian PhillipsIborn, her son-in-law, who, as it seems, had immigrated to the United States txvo or tlu-ecyearspreviously. Phillipsborn went on board the steamship as it reached the wharf, and after assisting the plaintiff in getting together her hand-baggage, undertook to search for her boxes. The evidence shows that he searched both on shipboard and among the baggage landed at Hoboken bxxt failed to find them. He then inquired of one of the defendant’s employes in attendance, who suggested that possibly the boxes would come by another ship, but assured him that they would be all right and xvould soon be along, and that the plaintiff would get them. On reaching Castle Garden he again inquired of the defendant’s agent and received substantially the same response. The next day he went to the defendant’s freight office in ¡New York and inquired for and described the boxes and was again met ,by the same assurance that they would come all right. Upon his insisting that he could not afford the expense of remaining in ¡New York- to await then-arrival and that he must have them at once, he was referred to another party to whom he again gave an explanation of the matter and who told him to go back to Hoboken, assuring him that he would find the boxes there. He accordingly returned to Hoboken and applied to the defendant’s freight agent and was directed by him to look all around and see whether lie could find them. He thereupon made thorough search, but the search proving fruitless, he was told to go again to Castle Garden as his boxes might be there. He then returned t© Castle Garden and made a thorough search there but with like result. He then went to the defendant’s office and demanded the boxes of .the defendant’s manager, telling him that he could not remain longer in ¡New York, and that he wished -to take the boxes with him on his journey to Chicago; that he had a given number of railroad tickets for the party, upon each of which he was entitled to free transportation of 250 pounds of baggage. The manager then told him that if they would g© west by the Erie railroad, he would ship the boxes later by that road, and arrange for their transportation the same as though taken along with the party, but as Pliillipsborn had already procured tickets by the Pennsylvania railroad, this arrangement could not be made. The party, however, remained in ¡New York another day, and on that day Philiipsborn again made search and inquiry for the boxes both at Hoboken and at Castle Garden, but entirely failed to get any trace of them. The plaintiff thereupon left an order for their delivery, when found, to ¡Rothfield, Stern& Company of ¡New York, and came on with her party to Chicago. Subsequently three of the four boxes shipped by the Wieland and the five boxes shipped by the Hammonia were delivered by the defendant to ¡Rothfield, Stern & Co. and were forwarded by them to her. Box number 1 was never delivered.

There is considerable conflict in the evidence in relation to the marks or directions placed by the plaintiff on the missing box before it was shipped, the defendant’s evidence tending to show that it was marked and directed to a Mr. Rothgerber of Chicago, and that the plaintiff’s name was not on it, while the plaintiff and several of her witnesses testified that all her boxes were marked with the name of Regina Gattman, in care of Rothgerber, Chicago, before they were shipped from Hamburg.

The defendant gave evidence showing that, by the rules and usages of the custom-house, the baggage of the steerage passengers arriving at Hew York was examined by the customhouse officers on the deck of tlie ship or at the wharf; that it was the duty of the passengers claiming the baggage to open it and allow an officer to examine it, and if nothing dutiable was found in it, it was taken to the general baggage room of the commissioners of emigration at Castle Garden for registration, and then delivered to the owner; that whenever dutiable articles were found, the inspector making the examination marked the packages containing such articles and attached thereto checks labeled “U. S. Customs, ” and bearing numbers, at the same time giving duplicate checks to the owner, and sent the packages to the bureau of customs at Castle Garden for the determination and collection of the duties; that if the owner, for any reason, declined or neglected to open the baggage, or if no owner appeared, the baggage was seized and sent to the bureau of customs, and when no owner presented himself to receive the duplicate cheek, both the check and duplicate were attached to the baggage; that such baggage was under the control of the surveyor of the port from the time of its examination on deck or at the wharf to the time of its delivery at said bureau, and that it there passed into the charge and under the control of the officers of the customhouse, and so remained until it was determined who was entitled to it and tlie duty was paid or it was released from duty and that the steamship company had no further control over it, and had no right to interfere, unless acting as the representative of the owner and by his authority. Hnclaimed immigrants’ baggage was placed in a public store-room connected with said bureau, and was there kept in charge of the customhouse officers for at least one .year, and the packages were then opened and the contents appraised by said officers, who afterward disposed of them by sale at public auction.

The defendant gave evidence tending to show that all the baggage on board the Wicland was discharged on the day of her arrival; that after the passengers had left, one of the defendant’s agents, whose duty it was to look alter “ left baggage,” found three boxes on the dock marked Bothgerber, but having no mark or number indicating that they belonged to the plaintiff, and put them into the baggage room and locked them up, and that said boxes appeared at the time to have been opened. The defendant also gave evidence tending to show that, while the baggage? discharged from the Wieland was being examined, an emigrant runner named Basclikopf called the attention of one of the inspectors making the examination to two boxes lying on the wharf, and endeavored to bribe him to pass them without examination, and on being asked who owned them, said that they belonged “to a girl over there; ” that the inspector declined the proffered bribe and told Baschkopf to open the boxes, and upon his neglecting to do so, the inspector marked them “ P. S.” (meaning public stores), with the number of his badge, and, after attaching a brass check to each, put them on the barge and conveyed them to Castle Garden and delivered them to the superintendent of the bureau of customs. Whether the duplicate checks were also attached to said boxes does not clearly appear. The number on the check attached to one of said boxes was 23, and it appears by the entries made at the time in a book kept by said burean, that the box bearing that check was marked Bothgerber, and that the number 287 was placed on it by the revenue officers on its arrival at said bureau, that being its serial number in the order of it's arrival. The evidence tends to show that said box was then placed in a store-room or ware-house connected with said bureau, to which no person had access except the revenue officers, and that it was kept there for over a year; that the various packages of unclaimed goods which had remained in said warehouse for that length of time were then opened, catalogued and appraised by said officers, and that one of the packages appearing on said catalogue was described as being marked with the name of Bothgerber; that two days prior to the day fixed for the sale of the unclaimed goods, said boxes and contents were placed on exhibition under the custody and guard of said officers, and that on the day appointed said boxes were sold, one Lee becoming the purchaser of the box marked Bothgerber. During the pendency of this suit the defendant traced said box into the hands of said Lee, and thereupon obtained from him a box, in a mutilated condition, which, as he claimed, is the box in question, and also the contents or a portion of the contents of said box. The box and contents were produced at the trial, and while a portion of the contents were admitted by the plaintiff to be her goods, she denied that the residue belonged to her, and her evidence tended to show that the box produced was not the box number 1, in which she shipped her goods from Hamburg.

The legal duty of the defendant as a common carrier of goods was to carry the goods in question from Hamburg to Hew York and there deliver them to the plaintiff. It seems to be the general rule that common carriers are under obligation to make personal delivery to the consignee. Scliouler on Bailments and Carriers, 501. This rule is relaxed in case of carriers by water, since it is customary for them to carry merely from port to port or from wharf to wharf and for the owner or consignee to receive the goods at the wharf upon the arrival of the vessel, and it is accordingly held that a delivery upon the wharf is sufficient. But it is of the essence of the rule that due and reasonable notice should be given to the owner or consignee, so as to afford him a fair opportunity for providing suitable means to take care of and carry away the goods. Angelí on Carriers, Sec. 313, and authorities cited. See also Crawford v. Clark, 15 Ill. 561; Union S. S. Co. v. Knapp, 73 Ill. 506. It clearly follows from this rule that the liability of the carrier continues until a reasonable opportunity is given the owner or consignee to receive and take possession of the goods.

We are of the opinion that the circumstances of the present case relieved the defendant from the duty of notifying the plaintiff of the arrival of her goods. She was a passenger by the same steamship by which she had shipped the goods, and she must of course be charged with notice of the arrival of both the vessel and cargo. "But although the plaintiff knew that her goods had arrived, she was entitled to a reasonable time to claim and take possession of them, and, until that time had elapsed, the defendant’s liability as common carrier continued, and such liability imposed upon the defendant the duty of protecting the goods from the interference of intruders or persons not entitled to their possession.

There seems to have been no want of diligence on the plaintiff’s part in endeavoring to find and take possession of her goods. Phillipsborn testifies, and in this respect, liis evidence is uncontradicted, that very soon after the arrival of the vessel at Hoboken, he, as the plaintiff’s agent, made search for her goods both on shipboard and among all the goods on the wharf. He also inquired for them of one of the defendant’s employes there present, but failed to find them. Where they were at the time this search was made does not clearly appear. That they were not then in such place on the wharf that the plaintiff or her agent could find them by the use of reasonable diligence may be fairly inferred.

If we should assume the truthfulness and accuracy of the evidence by which the defendant attempts to account for the missing box, it would appear that Baschkopf, a person with whom the plaintiff is not shown to have been in any way connected, and who must, therefore, be deemed to have been a mere intruder, took possession of said box and another box with which the plaintiff had no concern, claiming to be acting on behalf of some person whose identity is not proved, and attenrpted to bribe the revenue officer to pass said boxes — that is, to mark them as having been found on examination to contain no articles subject to duty, and that said officer, assuming that he was the proper representative of the owner, asked him to open the boxes, and upon his refusal seized them and delivered them to the officers of the custom house. From the time of the seizure, as must be admitted, the box was in the possession of the revenue officers of the government and the defendant had no further control over it.

The jury may very probably have inferred that the seizure took place before Phillipsborn, in his search, reached the place where the defendant had deposited the box on discharging it from the vessel, for otherwise he most likely would have found it. But, however this may be, it is clear that the seizure resulted from the wrongful act of a mere intruder, and the evidence warrants the conclusion that it took place before the plaintiff had a reasonable opportunity to find and take possession of the box, and, therefore, before the defendant’s liability as a common carrier terminated. The fact that the power of the government officers to make the seizure was plenary, and was a power which the defendant could neither question nor resist, is not material so long as the exercise of that power was evoked by the wrongful act of an intruder against whom the defendant was bound by its duty as a common carrier to protect the property. It is not claimed that the box contained any articles subject to duty, nor does it appear that any duties were ever imposed upon them by the custom house officers. It may therefore be presumed that if the hox had come into the possession of the plaintiff or her agent, it would have been properly submitted to the inspection of the revenue officers, and that it would have been by them discharged from the payment of duties and returned to the possession of the plaintiff. We are of the opinion then, that, even upon the defendant’s theory of the facts, there was never a legal delivery of the box by the defendant to the plaintiff, and accordingly that the defendant is liable to the plaintiff for its value.

But it is by no means established that the account given by the defendant’s witnesses of the seizure and subsequent history of the box is a true one. Their evidence traces the box which was seized into the hands of Lee, a purchaser at a sale by the revenue officers of unclaimed baggage, and the box thus purchased, or so much of it as hadnot been destroyed, was produced at the trial. The evidence offered by the defendant as to the identity of the box produced with the one lost by the plaintiff is far from being conclusive, while the testimony of the plaintiff and her witnesses tends to show that it was not the plaintiff’s box. If the box purchased by Lee was not the one lost by the plaintiff, very grave doubt is thrown upon the entire chain of evidence by which the defendant attempts to trace the history of the box from the time of its disappearance to the time of the sale of unclaimed baggage.

The point is made and very strenuously urged that the damages awarded by the jury are excessive. The evidence as to the amount and value of the goods contained in the missing box is conflicting. ' The plaintiff testified as to their amount, description and value, and her testimony, if believed, is sufficient to warrant the damages recovered. Her evidence is corroborated by that of her son and one of the young women who came to this country with her, who testified that they saw her pack the box, and that the articles to which she testified were put in it. She is also corroborated in some measure by her son-in-law, Pliillipsborn, who testified that he knew of her being the owner of most of the goods which she claims ■to have put into the box. On the other hand, but a small portion of said goods, and those the least valuable, were found among the goods which, according to Lee’s testimony, were in the box bought hv him at the sale of unclaimed baggage. Various other circumstances appear in evidence, but which it would serve no useful purpose for us to specify in detail, which tend to throw discredit upon the plaintiff’s evidence as to the damages. After carefully considering all the evidence, however, and after taking into account the ordinary disposition of plaintiffs in cases of this character to magnify the amount of their loss, we are unable to say that the jury have misconstrued the evidence, or that they have given undue weight to the evidence introduced by the plaintiff. The case has been tried once before with substantially the same result as to damages, and after the concurring verdict of two juries upon evidence thus conflicting, this court should bo very reluctant to set aside the verdict as being against the preponderance of the evidence.

Various exceptions were taken by the defendant to the ruling of the court in the instructions to the jury. We have examined the instructions and are of the opinion that they stated the law with substantial accuracy, and that there was no material error in that respect.

We find none of the assignments of error sustained, and the judgment will, therefore, be affirmed.

Judgment affirmed.

UPON REHEARING.

[Opinion filed August 1, 18S8.]

Per Curiam.

A rehearing having been granted in this case, we have carefully reviewed the evidence and the instructions of the court to the jury in all the light shed upon both by the very earnest and able oral and printed arguments delivered and presented by the appellant’s counsel.

The instructions, it seems to us, directed the jury with all reasonable accuracy and precision as to every point in issue upon the trial. Those refused were erroneous.

The evidence on behalf of the plaintiff below tended to prove every necessary element of a cause of action, and to support the verdict even as to the amount of damages.

There was, it is true, a conflict of evidence as to some of the facts essential to a recovery, and as to the question of damages. But the record fails to show a case where the verdict is wholly unsupported by evidence as to any one essential fact, or where -it is manifestly against the weight and preponderance of the evidence, or where the verdict is apparently the result of passion or prejudice upon the part of the jury, some one of which is necessary in order to justify this court in granting a new trial within the established rules governing in such cases.

After two examinations of the evidence in this case, we are satisfied it shows a cause of action against the defendant below as a common carrier. The defendant received a case of plaintiff’s goods at Hamburg to be carried to the port of Hew York, and there safely delivered to the defendant; at that port upon^ the arrival of the ship carrying the goods, the plaintiff caused a seasonable and proper demand to be made upon the defendant for the goods, and the defendant failed to deliver them or inform plaintiff where they -were. They were lost. That made out a cause of action and the defendant failed to show any legal justification in the premises. We may suspect that the evidence was strained so as to enlarge quantity and magnify as to quality and value of the goods, but we can not, under the evidence, demonstrate that what we suspect is fact. Upon the opinion heretofore delivered by Mr. Justice Bailey, it is the judgment of a majority of the court, that the judgment below should be affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    Joseph J. Hunter v. James Mathewson et al.

      Factor's Lien — Advances—Waiver—Notice—Sales—Question for Jury — ■ Evidence — Symbolical Delivery — Instructions.

      1. A factor who has made advances in the same line of business to the consignor, is entitled to a lien on stock consigned to him, unless a sufficient reason to the contrary is shown.
    2. In the case presented it is held: That the question whether a certain transaction between the consignor and the plaintiffs, who were third par- ' ties, amounted to a sale, was for the jury; that the question whether the consignee, the defendant herein, was a bona fide purchaser, was not involved; that evidence tending to show an agreement between the consignor and consignee, prior to the shipment, for the payment of said advances out of the proceeds, is competent; that, in order to lay the proper foundation for an implied waiver by the defendant, it was necessary that the evidence should tend to show that he had notice of the plaintiffs’ interest in the cattle, or proceeds; and that certain of the instructions were erroneous.
    3. Where a sale is actually intended, and is made in the usual course of business, an invoice, or other instrument, which specifies and enumerates the property sold, may be substituted for a bill of lading in constituting a symbolical delivery.
    4. A factor, in enforcing his lien, occupies in no sense the position of a purchaser.
    5. It is improper for the court, in giving instructions, to pass upon the facts of the case.
    [Opinion filed August 8, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Johu P. Altgeld, Judge, presiding.

      This was am action upon the common counts for money had and received, brought by appellees, Mathewson and Haidle, who were engaged in farming and stock business at Stanton, Nebraska, against appellant Hunter, who was engaged as a live stock commission merchant at the Union Stock Yards, Chicago, to recover the sum of §1,311.69, as part of the proceeds of certain live stock shipped May 2, 1885, by one C. Abrams, by rail, from. Stanton aforesaid, to. said Hunter, as such commission merchant, to be sold by him.
    This ease was tried by jury, under the plea of general issue, and evidence was given on behalf of the plaintiffs tending to show that May 1, 1885, at Stanton aforesaid, they sold the cattle in question to said Abrams, he paying therefor 8300 in cash, and at the same time giving to them for the balance of the price a draft on defendant Hunter, payab’e to the order of plaintiffs, for §5,166, which they indorsed to the Citizens Bank at Stanton for collection. The evidence tended to show that the cattle were delivered by plaintiffs to Abrams, and that the latter delivered them at Stanton aforesaid to the railroad company for shipment to said .Union Stock Yards said railroad company giving him a receipt and contract therefor, made in duplicates, a copy of one of which, indorsed by Abrams, was delivered to plaintiffs, to which said draft was attached. It was as follows:

    “ Live Stock Contract.
    “Copy of duplicates issued at request of shipper.
    “ Freight Office Tbehont, Elkhobn & Missouri Valley R. R. Co.
    “ Stanton, Neb., May 2, s85.
    “ Received of C. Abrains 5 cars cattle, to be delivered at U. S. Yards, Chicago, 111., at special rates, being tariff rates for cattle or hogs. In consideration of which, and for other valuable considerations, it is hereby mutually agreed that said company shall not be liable for loss by jumping from the cars, delay of trains not caused by negligence, or any damage said property may sustain except such as may result from a col lisien of the train with other trains, or when the cars are thrown from the track in course of transportation, and in this case the company, upon whose road the accident, loss or damage shall occur, shall he liable therefor, and no suit shall be brought or claim made against any other company forming a part of the route, for such loss or damage (it being expressly understood and agreed that the responsibility of this railway company shall cease upon delivery of said property to its connecting line, unless otherwise agreed to in writing, and signed by the respective parties hereto), and that the rules and regulations printed above are an essential part of this contract.
    “O. E. Wilbur, Agent.

    „ “0. Aerams, Owner.”

    On the back of the above paper is the following:
    “Parties actually in charge of and accompanying within named stock are required to write their own name in ink here.
    “0. Abrams.
    “Parties in charge have written their own names above.
    “0. E. Wilbur, Agent,

    “Stanton, ¡Neb.”
    “¡Note: Agents will permit only the signature of owners or bona fide employes, who accompany the stock, to be entered on back of contract, without regard to passes allowed by number of cars, and run a pen through remaining lines.
    “¡Note: Agents will in all cases send to the general freight agent, Missouri Valley, a duplicate of all live stock contracts made by them. The duplicate must be signed by the owner in the same way as the original.”
    The plaintiffs delivered this copy with said draft attached to said bank for collection.
    The evidence tended to show that the railroad company made out a way bill of the cattle, showing said Abrams to be the consignor and the said defendant the consignee thereof, in which the name of plaintiffs did not appear; that said Abrams came with the cattle in his charge to the Union Stock Yards, where he assisted in putting them into defendant’s possession to be sold by him ; and the evidence tended to show that the defendant had no notice of said draft, of plaintiff’s claim, or of any of the transactions between the latter and Abrams until he had sold the cattle and received the proceeds of them.
    The defendant having shown that Abrams was indebted to him in the sum of §1,311.69, for advances by the former as such commission merchant, made in former transactions, to said Abrams as shipper of stock, offered to show that a little prior to the shipment of the stock in question it was agreed between them that defendant should have his pay out of the proceeds of the next shipment made. But the court, on objection of plaintiff’s counsel, decided that such evidence was immaterial and incompetent and excluded the same ; to which defendant duly excepted.
    There was evidence on behalf of plaintiffs tending to show that the transactions between the plaintiffs and Abrams at Stanton respecting the live stock contract and draft, were in accordance with the usual course and forms of the business; but as to that the evidence was conflicting.
    The evidence tended to show that the cattle arrived at the Stock Yards in the morning of May 6,1885, were immediately delivered to defendant and sold by him, as commission merchant, before noon of that day; that defendant appropriated sufficient of the proceeds to pay Abrams’ indebtedness to him, and, although notified of said draft after the sale, he refused to pay anything upon it, but paid the balance over to Abrams, who paid it to the plaintiffs. The controversy was, therefore, confined to the amount so retained by defendant. The court gave, on behalf of plaintiffs, the following instructions:
    “Instbuctions fob Plaintiffs.
    “ This is an action of assumpsit by which the plaintiffs seek to recover the sum of §1,311.69, being the balance of the net proceeds of the sale by defendant of certain cattle at the Union Stock Yards near this city, on the 6th day of May, 1885.
    “It appears by the evidence tliat shortly prior to the 2d day of May, 1885, the plaintiffs sold to one Abrams.a lot of cattle at Stanton, Nebraska.

      “ Thereafter on the 2d day of May, 1885, said cattle were shipped by said Abrams in his own name to defendant at the Stock Yards. He paid plaintiffs on account of the price of these cattle the sum of §300, and to provide for the' balance of the price, gave them a draft on the defendant for the sum of §5,166, and also what is styled a copy of the duplicate bill of lading or live stock contract which has been introduced in evidence.
    “The court charges you that the effect of this arrangement as between Abrams and Mathewson and Haidle, the plaintiffs, was to vest in them an interest in, or right to the proceeds of those cattle to the extent of this draft. Whether or not they have this right as against the defendant, depends upon other considerations which will be hereafter adverted to.
    “ It appears that Abrams accompanied the cattle to the Stock Yards where they arrived on the morning of May 6th, about 5:30 o’clock, and were shortly thereafter delivered to the defendant, and sold by him as a commission man in the usual course of business in the forenoon of that day, the net proceeds, deducting commissions and usual charges, being §5,116.50, which were passed to the credit of Abrams on defendant’s books.
    “It also appears that at this time Abrams was indebted to the defendant in the sum of §1,311.69, a balance which had arisen mainly by reason of his overdrafts on previous shipments. This balance defendant, claiming a previous agreement on his part warranting this, deducted from the proceeds of the sale of the cattle, and, on the 7th of May following, mailed him a draft for the balance of §3,804.81, which he turned over to the plaintiffs. How, the question for you to try is whether, on the evidence, the defendant is a bona fide purchaser of the cattle shipped to him as shown in evidence to the extent of his demand against Abrams. That is, whether by any agreement or arrangement with Abrams, he acquired an interest in these cattle or their proceeds without knowledge of the fact that he was not entitled to such proceeds, or knowledge or not’ce of such facts or' circumstances as, if brought to the attention of men of ordinary prudence similarly situated and followed up with ordinary care or diligence, .would have led to that knowledge.
    “Therefore, unless you find from the evidence that defendant believed and was, under all the circumstances, justified in believing that the cattle were the property of Abrams or that he had a right to the proceeds thereof, and also unless you find that he attempted to vest in defendant an interest in these cattle, claiming them as his own, your verdict will be for the plaintiffs for the said sum of §1,311.69 with interest thereon from the 6th of May, 1885, at the rate of six per cent, per annum.
    “If you find from the evidence that when the cattle arrived and were sold he urged defendant to pay the draft and protested against his deducting his indebtedness to him from the proceeds of the cattle, then the defense fails in both points.”
    Mo other instructions -were given. The jury found for plaintiffs assessing their damages at §1,463.93, and the court, overruling defendant’s motion for a new trial, gave judgment on the verdict, and the defendant appealed to this court.
    Mr. Edward B. Swett, for appellant.
    Messrs. Flower, Bemy & Holstein, and Harrison Mus-grave, for appellees.
   McAllister, J.

Abrams being indebted to defendant Hunter upon a general balance for advances made by the latter to the former in the same line of business, Hunter would, if no sufficient reason to the contrary were shown, have been entitled to a lien on the cattle in question for such advances, when taken into his possession with the assent of Abrams, to be sold by Hunter as such commission merchant, and upon the proceeds of the cattle, the moment they were received. 1 Jones on Liens, Secs. 418, 468, afid cases in notes.

The plaintiffs, in order to establish their right to said proceeds and defeat said lien, gave evidence tending to show that they sold and delivered the cattle to Abrams; that he paid them of the purchase price $390 in money and for the balance gave his draft on the defendant, set out in the statement of the case, then delivered to them a copy of one of the duplicates of the live stock contract which the railroad company and Abrams had entered into, indorsed in blank by the latter, but in which the plaintiffs are in no wise mentioned.

The case seems to have been tried partially upon the theory that the transaction amounted to a sale and symbolical or constructive delivery of the cattle by Abrams to the plaintiffs below, and had the effect of passing to the latter the absolute title to the cattle, and partially upon the theory that the plaintiffs had acquired only such interest in the cattle or proceeds as would prevail over the defendant's lien, by showing notice to him of their rights, and an implied waiver on his part of his lien.

In order to lay the proper foundation for an implied waiver on the part of defendant it was necessary that the evidence as to facts and circumstances tended to show that the defendant had notice of plaintiffs’ interest in the cattle or the proceeds, before, or at the time of taking possession of them for the purpose of selling them. We think the case of Darlington v. Chamberlain, 20 Ill. App. 443, and all the authorities there cited sustain that view.

The counsel for appellant seems to suppose that unless the railroad company issued to Abrams what is known as, or equivalent to, a bill, of lading, in which the name of the consignee is mentioned, there could be no such absolute sale and symbolical or constructive delivery of the property as would give plaintiffs priority over defendant without actual notice to him. A bill of lading, or its equivalent, is not indispensable. If a sale was actually intended and made in the usual course of business, an invoice or other instrument which specifies and enumerates the property sold, may be substituted for a bill of lad ingin constituting a symbolical delivery. Gibson v. Stevens, 8 How. 384; Davis v. Bradley, 24 Vt. 55; Gardner v. Howland, 2 Pick. 599; Davis v. Bradley, 28 Vt. 118; Holbrook v. Wight, 24 Wend. 168.

The question whether or not the transaction between Abrams and the plaintiffs was a sale, was a question for the jury, involving the fact of intention of the parties, and whether it was in accordance with the usual course of business, as to which there was a conflict of evidence. The transfer of the live stock contract did not pass the title by its unaided operation, and could operate only as evidence of a sale and a symbolical transfer of possession. Smith’s Lead. Cas., Vol. 1, Part 2, p. 1206, Lickbarrow v. Mason.

It was for the jury to look at all the circumstances and to determine the character of the transaction. Holbrook v. Wight, supra. But as appears by the instructions for plaintiffs, set out in our statement of the case, the court took all ¿hose questions from the jury, as was done with nearly all the questions of fact in the ease, and decided for itself the character and effect of the transaction, with no facts whatever snbEnitted to the jury as the basis of that conclusion.

In the sixth paragraph of the said instructions the court directed the jury that the question for them to try was whether, on the evidence, the defendant was a bona fide purchaser of the cattle shipped to him as shown in evidence, to tiie extent of his demand against Abrams.

Ho sncli question was in issue upon the trial A factor enforcing his Hon stands in no sense in the position of a purchaser. Such a direction was calculated to mislead and confuse the jury.

The last paragraph seems to be independent of all others, and reads thus: “If yon find from the evidence that when the cattle arrived and were sold, he (Abrams) urged defendant to pay the draft and protested against his deducting his indebtedness to him from the proceeds of the cattle, then the defense fails in both points.”

Unless it be the law that the principal may defeat the factor’s lien after it has attached, by his arbitrary directions to pay the proceeds to somebody else, that instruction was erroneous. We are aware of no such rule of law.

The practice of giving instructions in which the court assumes to pass upon the facts of the case, is not sanctioned, but condemned by the Supreme Court in repeated instances. Bail-road Co. v. Moranda, 108 Ill. 576; Town of Evans v. Dickey, 117 Ill. 291.

We are of opinion that in one aspect of the ease the evidence offered by the defendants to the effect that prior to shipping the cattle in question it was agreed between Abrams and defendants that defendants might be paid their advances out of the proceeds, would become material. It was therefore competent. For the errors pointed out, the judgment of the court below must be reversed and the cause remanded.

Iteversed and remanded. ■


author: Garnett, J.

text:
    A. J. Wright et al. v. Chicago & North Western Railway Company.

      Torts — Fire—Keeping of Oils — Ordinance—Violation of — Storage— Questions for Jury — Evidence—Proximate Cause — Pleading—Variance— Practice — Former Adjudication.

    2. Upon a second trial, after a general reversal, even if the opinion of this court could be considered, its application to part of the case as a former adjudication would have to be dearly made out.
    2. Where the declaration charges that an explosion which caused the destruction of the plaintiffs’ property, came from petroleum stored in the defendant’s warehouse running along the easterly line of plaintiffs’ building, and the evidence introduced by the plaintiffs shows that the defendant’s warehouse was south of their building, the variance is fatal.
    3. An ordinance making it unlawful to store or keep for sale within the city limits any crude petroleum, or to keep any quantity of crude petroleum or refined carbon oil, exceeding one barrel,'in any part of a building except the cellar, is violated by a railroad company in keeping in its warehouse for a reasonable time such articles for transportation.
    4. The keeping of explosives unsafely guarded in such quantities'sis to be dangerous to persons and property, in such a place and under such circumstances as to threaten calamity to the persons and property of others, the consequence being an explosion which causes damage to the person or property of another, gives a right of action for such damages as would not have happened in the absence of such explosives.
    5. Where a number of causes and results intervene between the first wrongful cause and the final in jurious consequence, which are such as might, with reasonable diligence, have been foreseen, the last as well as every intermediate result is to be considered as the proximate result of the first wrongful cause.
    6. In the case presented, it is held: That it was a question for the jury whether the damage alleged was the proximate 'consequence of the act of the defendant in keeping the oils in its building; that evidence tending to prove that the floor of the defendant's building was soaked with oil was improperly excluded; and that the court erred in excluding the plaintiffs'1 evidence from the jury and in directing a verdict for the defendant.
    [Opinion filed August 8, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Loiíin C. Collins, Judge, presiding.
    This case was formerly before this court, and the judgment of the court below reversed and remanded, because there was error in sustaining a demurrer to the 10th count of the plaintiffs’ declaration. The decision in that case is reported in 7 Ill. App. 438. On the reducketing of the case in the court below the demurrer to that count was overruled. The ease again came on for trial before the Circuit Court and a jury, on the 1st, 2d, 3d, 10th and 12th counts of the declaration and pleas thereto. The 1st and 2d counts allege, in substance, that the plaintiffs were the owners and in possession of a valuable building in Chicago, having therein divers goods and chattels; that defendant occupied and used an old one-story frame building, separated from plaintiffs’ building by an alley thirty feet wide, running along the easterly line thereof, which defendant used as a warehouse or storage house for freight; that on, to wit, October 9, 1871, the defendant caused to be stored in said frame building a large quantity of crude petroleum, gasoline, etc., which storage was dangerous to plaintiffs’ building and contrary to law; that on October 9, 1871, defendant’s building took fire and said liquid exploded with great violence, throwing great quantities of burning material upon plaintiffs’ building, which was thereby destroyed, as well as the goods and chattels therein contained. The 3d count states the ownership and occupation of the buildings and their relative situation in the same manner; and that defendant took so little and such bad care of its building that through its negligence highly dangerous' and inflammable material was stored therein; and on the 9tli of October, 1871, in consequence thereof, an explosion occurred with great violence and with like results as stated in the 1st and 2d counts. The substance of the 10th count is stated in 7 Ill. App. 438.
    The 12th count charges the negligent keeping of said inflammable and dangerous liquids on the defendant’s close for an unnecessarily and unreasonably long time, and that on October 9, 1871, the same took fire and the flames therefrom spread so rapidly to the premises, goods and chattels of plaintiffs that the same were wholly destroyed; that but for the rapidity with which the flames spread the ¡premises and goods and chattels of the plaintiffs would not have been destroyed.
    When the plaintiffs’ evidence was closed a motion was made by the defendant to exclude the evidence from the jury, and instruct them to find for the defendant. The motion was sustained and the plaintiffs excepted. Verdict was rendered for the defendant and the plaintiffs filed their motion for a new trial, alleging as grounds thereof (among others) that the court erred in excluding proper evidence offered on behalf of the plaintiffs, and in excluding from the jury all the evidence introduced on behalf of the plaintiffs, and in instructing the jury to find for the defendant. The motion for a new trial was overruled, to which the plaintiffs excepted. Judgment was entered on the verdict and plaintiffs appealed.
    Messrs. George Burry, John V. LeMoyne and Leonard Swett, for appellants.
    The defendant is responsible for the natural and probable consequences of its unlawful or negligent acts.
    The maxim, “ Oausa próxima et not remota speetaturhas given rise to much discussion and some irreconcilable decisions. This has been caused mainly by attempts to apply the maxim to a class of cases where it is not applicable, that is, to willful or negligent torts. Broom’s Legal Maxims (7th Ed.) 217; Redfield in 13 Am. L. Reg., U. S. 14; Field on Damages, Secs. 9-13; McDonald v. Snelling, 96 Mass. 290; Weick v. Lander, 75 Ill. 93; Kellogg v. C. & N. W. Ry. 26 Wis. 258, 286.
    The loss of the plaintiffs’ goods was the natural and probable consequence of the defendant’s wrongful acts. The intervention between the wrongful cause and the injurious consequence of the act of a third person does not prevent the consequence being a natural and probable consequence of the wrongful act. McDonald v. Snelling, 96 Mass. 290-6; Wood’s Mayne on Damages, *60; Sheridan v. Brooklyn R. R., 36 N. Y. 39; Griggs v. Fleckenstein, 14 Minn. 81; McMahon v. Davidson, 12 Minn. 373; Weick v. Lander, 75 Ill. 93 ; Scott v. Shepard, 2 Black. 892 (Squib case); Illidge v. Goodwin, 5 C. & P. 92; Lynch v. Burdin, 1 Q. B. 29.
    The expression, “ The natural and probable consequences,” has been paraphrased substantially thus: Those consequences, and those only, are deemed natural and probable, which a person of average sense and knowledge would be expected to foresee as likely to follow. This, however, is not. an exact statement of the meaning of the phrase; it is not necessary that the consequence should have been so certain to result that a person of ordinary sense and knowledge cOuld have foreseen that it would result or that it would probably result; it is sufficient if the consequence is so natural and probable that an ordinary person would see that it was liable to result, that is, that it might follow. C. & A. R. R. v. Pennell, 110 Ill. 448; Smith v. R. R., L. R. 6 C. P. 20, 21, 23.
    As illustrating generally the meaning of this phrase in cases of this kind, see Scott v. Shepard, 2 Black. 892 (Squib case); Illidge v. Goodwin, 5 C. & P. 192; Lynch v. Nurdin, 1 Q. B. 29; Clark v. Chambers, 3 Q. B. D. 327; Parry v. Smith, 6 C. P. D. 327; Thomas v. Winchester, 6 N. Y. 397; Vandeburg v. Truax, 4 Den. 464; B. & A. R. R. v. Shanly, 107 Mass. 568.
    The plaintiffs had in their building twenty-four horses harnessed and bridled, which they were removing as fast as possible, and which, with the number of men working, would have been all taken out in eight minutes. There was no fire in the plaintiffs’ building, but the defendant’s building on the other side of the alley was burning. Suddenly by an explosion in the defendant’s building, the doors and windows of the plaintiffs’ building were burst in and it was filled with smoke and flame; the men were compelled to leave the horses to save their own lives. The explosives were kept in the defendant’s building, unlawfully and negligently.
    “ It should have been left for the jury to determine whether, from the dangerous character of the defendant’s business, the proximity to other buildings, and all the facts proved at the trial, the defendant was chargeable with maintaining a private nuisance,” or a public nuisance, or was guilty of negligence, and whether the damages sustained by the plaintiffs were the natifral and probable consequences of the defendant’s wrongful acts. Heeg v. Licht, 80 N. Y. 581; T. P. & W. R. R. v. Pinder, 53 Ill. 421; Fent v. T. P. & W. R. R., 59 Ill. 362.
    Messrs. B. C. Cook, W. C. Goudy and W. B. Keep, for appellee.
    The evidence was uncontroverted that the defendant’s building was a depot for receiving and shipping freight-That this was a warehouse for the storage of goods was not only not proven, but was abundantly disproven. There was no evidence tending in any way to prove it. The words warehouse and storing-house for freight have a fixed and settled meaning. Beceiving goods for present transportation is one thing, and receiving them as a warehouseman for storing is quite another. Articles received by a railroad company are required by law to be immediately forwarded. The railroad company becomes an insurer of the goods as soon as received. Ao thing but the act of God, or of the public enemy, will excuse the carrier if the goods are lost or destroyed. If the goods are received for storage, the care required is only that which an ordinarily prudent man takes of his own goods.
    The storing of inflammable goods is far more dangerous than the receiving them for shipment. Goods received by a carrier for transportation must be constantly under the eye of a watchman. The responsibility of the carrier is so great as to absolutely require this. Goods stored in a warehouse need not be constantly watched, consequently the risk is far greater in the one case than in the other. It is no great inconvenience to keep goods on store in the manner pointed out in the ordinance. But to put every barrel of petroleum in a cellar when received for shipment, and take it out when shipped, would involve great expense in handling. The law does not allow so much for transporting this oil as it does for molasses, for instance. The law provides specific rates of freight for the transportation of carbon oils. These rates are fixed, and published by the railroad commissioners of the State, and prescribe rates from Chicago to every station on defendant’s road, and the law compels defendant to ship such oil at the rates prescribed from every station at those rates. (Bevised Statute, 810, Sec. 59.) If the defendant -was hound to put every barrel so received in a cellar, and take it out, it is manifest that the cost of transporting a car-load of this oil would be double the cost of transporting a car-load of molasses.
    The distinction of keeping in store and for other purposes is uniformly taken by the courts. Ins. Co. v. Langdon, 6 Wend. 628; O’Neil v. B. F. Ins. Co., 3 N. Y. 127; Hynes v. Ins. Co., 17 Barb. 119.
    A railroad becomes a warehouseman when goods are received at the point of destination and stored. P., C. & St. L. R. R. Co. v. Hollowed, American Law Register, Feb., 1880; Rothschild v. M. C. R. R. Co., 69 Ill. 164; Merchants’ D. & F. Co. v. Halleck, 64 Ill. 284; Ill. Cent. R. R. Co. v. Friend, 64 Ill. 303.

      “ In order to make a défendant liable, his negligence must he the causa causans,” and not merely a causa sine qua non/ per Kelly, C. B., in The Lord’s Bailiffs of Bomney v. The Corporation of Trinity House, 39 L. J. Ex. 163.
    The defendant was a railroad corporation and a common carrier, and bound by the laws covering common carriers.
    It is hound to receive all freight offered at any of its stations, and transport the same. It did receive certain barrels of carbon oil in its freight depot. Some of those oils remained from Friday to Sunday, the day of the fire, but the most of them were received on Saturday, and in the regular course of business would have gone out on Monday morning. On Monday, the 9th of October, 1871, the whole city of Chicago was destroyed by a tornado of fire.
    The fact that the injury is a remote result of the act, or in other words, that the injury would not have occurred except for the act, is not enough if some cause other intervened which is the proximate cause of the injury. Wood’s Mayne on Damages, p. 69, note.
    A distinction is taken by all the courts between a case where the injury is the direct result of the act of defendant, as if the oil had exploded or ignited in the freight house of defendant and thereby caused- the burning of the plaintiffs’ property, and a case where some other cause has intervened which is the cause of the injury, like the great fire. Toledo, Wabash & Western R. R. Co. v. Muthersbaugh, 71 Ill. 573; Phillips v. Dickerson, 85 Ill. 11; Dubuque Wood and Coal Association v. City and County of Dubuque, 30 Iowa, 183; Daniels v. Balentyne, 23 Ohio St. 532; R. R. Co. v. Kellogg, 94 U. S. 475; Hoag v. Lake Shore & M. S. R. R. Co., 85 Pa. St. 293; Waters v. The Merchants’ Louisville Ins. Co., 2 Curtis, 406; Atchison, Topeka & Santa Fe R. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362; Nashville & C. R. R. Co. v. David, 19 Am. Rep. 594; Ryan v. N. Y. Central R. R., 35 N. Y. 214; R. R. Co. v. Kerr, 12 P. F. Smith, 353.
    Where the accident has arisen in consequence of some unexpected and unusual condition of things which could not have been foreseen, no liability will attach; as, where a railway was impaired by an extraordinary flood, the state of the road being such that it was secure against ordinary floods, in which case it was held that the company were not liable for an. injury to a passenger from a misplacement of rails occasioned by such flood. Withers v. The North Kent Ry. Co., 27 L. J. Ex. 417.
    So where an act of parliament directed a water company to lay down pipes with plugs in them as safety-valves to prevent the bursting of the pipes, and the plugs were properly made and of proper material, and a severe frost occurring, the plugs were prevented from acting and the pipes accordingly burst and flooded the'plaintiff’s cellar, it was held that there was no evidence of negligence against the defendants. Blyth v. The Birmingham Water Co., 11 Ex. 781.
   Garnett, J.

On the first trial of this cause in the court below the evidence of the plaintiffs was excluded from the jury, and a verdict for defendant found by instruction of the court. In considering this action of the court, we said in our former opinion that the court was divided in opinion as to the question whether it was error to give such peremptory instruction on the evidence introduced. The defendant now insists that, as there was no new evidence on the second trial, the insufficiency of the evidence to support the 1st, 2d, 3d and 12th counts is res adjudicata. The record shows a general reversal and remanding for error. The opinion, even if it were proper to refer to it, does not show how the court was divided on the question referred to. Eor all that appears in the record or o pinion, two of the judges may have thought the ruling erroneous and the third may have dissented. If there is an adjudication we must be able to make it out clearly. It is not sufficient that it may be argumentatively inferred. 1 Herman on Estoppel & Bes Adjudicata, Sec. 116.

That which is given the effect of a former adjudication in this court, should operate in like manner in the Supreme Court. The doctrine of that court is, that the opinion of the Appellate Court is no part of the record. Christy v. Stafford, 123 Ill. 464.

But whether we consider the former opinion of this court or not, an adjudication of the question under consideration is not shown.

The evidence did not tend to support the first three counts. They charged that the explosion which caused the destruction of plaintiffs’ property came from petroleum, etc., stored in defendant’s warehouse, running along the easterly line of plaintiffs’ building, while all the evidence introduced on the point showmd that defmdant’s warehouse where the oil was stored, and from whence the explosion is alleged to have pro-needed, was south of the plaintiffs’ building. That is a, fatal variance. 1 Chitty’s Pl. (16th Am. Ed.) 407; The Central Military Tract R. R. Co. v. Rockafellow, 17 Ill. 541; Disbrow v. C. & N. W. R. R. Co., 70 Ill. 247; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. & A. R. R. Co. v. Mock, Adm’x, 72 Ill. 141; T. W. & W. Ry. Co. v. Morgan, 72 Ill. 155.

The tenth count relies upon a breach of the city ordinance, but counsel for appellee is mistaken in supposing that it alleges the oil was kept in front of defendant’s premises or building. The decision of this court reported in 7 Ill. App. 438, held that the tenth count set forth a good cause of action, but did not decide that receiving the oil merely for transportation, and keeping the same for a reasonable time for that purpose, was a violation of the ordinance. The latter question we are now called upon to decide.

The evidence showed that all the articles which are alleged to have caused the damage complained of, came into possession of the defendant, and were kept in its building simply for the purpose of transportation. Whether the ordinance applies to such a keeping or storing, must depend on its terms and the object sought to be accomplished. The first clause of the ordinance makes it unlawful to store or keep for sale within the city any crude petroleum, etc., exceeding a quantity of five barrels of forty-five gallons each; the second, to keep for sale or on storage any refined carbon oil, etc., except such as will stand a fire test of 110 degrees Fahrenheit, etc.; the third, to keep any quantity of said articles exceeding one barrel of forty-five gallons in any part of a building excepting a cellar, etc.; the fourth, to keep or store any crude petroleum, etc., in front of any-building or on any street, alley, wharf, lot or sidewalk, for a longer time than is sufficient to receive in store, or in delivering the same, provided such time shall not exceed six hours.

The third clause seems plainly to prohibit the keeping by any person or corporation of more than one barrel, except in a proper place, to wit, a cellar. There is no exception in the ordinance in favor of a railroad company keeping the articles for purposes of transportation. Why should the court introdnce such an exception? The oils enumerated are just as dangerous to life and property when in possession of a railroad Avhose business is to remove it from the city, as in the hands of the shipper.

The fourth clause Avould seem to indicate that, in using the Avords store and storage, the common council did not intend to confine the ordinance to keeping in store for hire. Streets^ alleys, lots and sideAvalks are not commonly used for storage purposes. If appellee’s construction is correct, any quantity of the prohibited articles might he Itejyt in an open lot in the city if it was not kept there for sale, and the keeper received no compensation for the keeping. The design of the ordinance was to guard life and property against the dangers incident to the accumulation of large quantities of these inflammable substances in any one place. To permit railroad companies to ignore the ordinance, and take into their freight houses indefinite quantities of such articles, would amount to a practical denial of the protection intended.

The danger is the same Avhether the keeping is paid for or not, and whether it is kept for sale, exhibition, refining purposes or for hire. To obey this ordinance is, without doubt, an inconvenience to any one not provided Avith a cellar such as its terms require. Railroads may not he able to comply with the prescribed terms, and make any profit on transporting the oils specified, unless the rates allowed are made more liberal. It may become necessary for the roads to build expensive warehouses within the city limits to insure the safety songlit by the ordinance, or to remove the oil from the city as rapidly as delivered, to its Avarehouses outside of the city. But all these matters are trifles compared to the safety of the public and can have no Aveight in determining this important question.

The mere act of keeping the oils in its building, although prohibited by the ordinance, gives no right of action to appellants. It is still a question of fact whether the damage alleged was the proximate consequence of such keeping. While, therefore, Ave decide that tin? third clause of the ordinance means what it says, and is applicable to all persons and corporations, yet it will be a question for the jury whether the keeping of the oils was or was not the proximate cause of the injury complained of in the tenth count.

The twelfth count charges upon the appellee negligence in keeping the oil in its warehouse for an unreasonable time. If the defendant could keep in that warehouse any quantity of such oils, no matter how large, and for any period of time, no matter how long, without incurring the imputation of neglect in thus exposing to danger and loss the adjoining property of other persons, it is our duty to say that the evidence did not tend to support the twelfth count. On the other hand, if there was a limit as to quantity and time, it is plainly our duty to leave the jury to find the limit. The evidence tended to show that the oils in the defendant’s warehouse at the time of the fire, or a large part of them, had been there from Friday, October 6, to Sunday night, October 8, 1871, awaiting shipment; that they were of a highly inflammable character, exploding with great force at a comparatively low temperature; that the explosion and fire which caused and hastened the destruction of the plaintiff's’ property came from the oils, and that, but for this unexpected precipitation of fire upon the plaintiffs’ property before there was reason to anticipate its immediate destruction, a large part at least of the personal property could and would have been removed from all danger.

Whether the oils were kept for an unreasonable time depends on the quantity and character of the articles, their liability to cause damages like that complained of, the degree of exposure to explosion of the articles in the place they were kept, the character and condition of the defendant’s building, its proximity to the property injured, and upon the force or feebleness of these circumstances the jury should have been allowed to pass.

It is true that one is only answerable for the probable and proximate consequences of a fault and which may be foreseen by ordinary forecast. This rule does not shield defendant. If the evidence is to be believed, the explosion of the oils was a probable and proximate consequence of having them in that inflammable frame building through whose cracks the sparks falling from any passing locomotive might, at any time, have started a fire.

The danger might have been foreseen by any person of average intelligence. But, to make the defendant liable in damages, it is not necessary that the great fire itself might have been foreseen, nor that the defendant should have anticipated the loss from that particular source; if the circumstances were such that it should reasonably have been aware of the danger from the sparks of an engine, the burning of any other building or structure in that vicinity, or carelessness of any person, this court can not say, as a matter of law, that the oils were not kept an unreasonable time.

This case is distinguishable from Toledo, W. & W. R. R. Co. v. Huthersbaugh, 71 Ill. 573, where the court said: “ Had it mot been for the high wind prevailing from the southeast, it meeds ao argument to show the stable would have been in no danger whatever.” From the facts in this case, however, we think the jury would have the right to find that appellants, property was in danger all the time defendant used its warehouse for storing explosive oils; not io danger especially from a great conflagration which no one antiei pated or could foreseen but from any fire which might, through accident, carelessness or design, come in contact with the explosives. The ease of A. T. & S. Fe. R. R. Co. v. Stanford, 12 Kan. 354, well states the doctrine applicable to the facts in the case at bar:

iCAny number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first and every intermediate result, is to be considered ia law as the proximate result of the first wrong cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequence could not have happened, then such injurious consequences must be deemed too remote to constitute the basis of the cause of action.”

The words in italics point out the correct distinction; by reasonable diligence, or by the exercise of reasonable intelligence, a great tempest of fire could not have been foreseen, but fire and explosion could and would have been apprehended.

The law requires a man to guard against all dangers that are to be reasonably anticipated ; it is a class of dangers that is to be guarded against, and he is not excused because any particular danger within the class could not be foretold. We are content with the rule that the keeping of explosives unsafely guarded, in such quantities as to be dangerous to persons and property, near a frequented street, or other public place, or in the vicinity of the residences oír places of business of others, under circumstances that threaten calamity to the person or property of others, the consequences thereof being an explosion of such articles, which causes damage to the person or property of another, gives the latter a right of action tO' recover from the person keeping the explosives such damages as would not have happened in their absence. Meyers v. Malcolm, 6 Hill, 292; Cooley on Torts, 607.

One guilty of negligence in leaving anything dangerous in a place where he knows it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, is liable in damages if that injury shall be so brought about. Weiek v. Lander, 75 Ill. 93; Lynch v. Hardin, 41 E. C. L. 422.

It follows from what we have said that the court' should have permitted the plaintiffs to prove, as they offered to do at the trial, the condition of the defendant’s building and the floor thereof, as to its being soaked with oil or otherwise.

For this and the other errors herein indicated the judgment of the court below Js reversed and remanded.

Heversed and remanded.


author: Per Curiam.

text:
    John Gibbons v. The County of Cook.

      AUorneifs Fees — Actions agaimt County.

    In an action against a county to recover compensation for services rendered as special counsel, this court holds, upon the agreed statement, that the employment of the plaintiff was binding upon the defendant.
    [Opinion filed September 6, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba FT. Wateeman, Judge, presiding.
    Messrs. Abmand F. Teefy and Wm. W„ Q-ubley, for appellant
    Mr. E. E. Bliss, for appellee.
   Per Curiam.

Tin's was assumpsit by appellant, Gibbons, against the appellee, the County of Cook, to recover compensation for services rendered as special counsel by the former for and upon the retainer and employment of the latter. The declaration was upon the common counts, with an affidavit of the plaintiff of the amount due him for such services, which was stated to be the sum of $809. The plea was the general issue.

Upon an agreed statement of facts, which provided, in substance, that if the court should be of opinion upon such statement that the defendant was legally liable to the plaintiff, then judgment in his favor was to be rendered for the amount claimed by the plaintiff in his affidavit of the amount due, the cause was submitted to the court for trial without a jury, resulting in a finding and judgment for defendant, and the plaintiff appealed to this court, where the case is submitted upon printed arguments.

We have read the arguments of the counsel for the respective parties, examined and duly considered all the matters of fact presented in and by the agreed case, and from the agreed facts and the fair and legitimate inferences to be drawn therefrom. we are of opinion that the party suing was the person intended to be employed as special counsel on behalf of defendant; that the employment of 'plaintiff as such counsel in the manner stated in the agreed case was legitimate and binding upon the defendant; that the plaintiff performed the services under such employment, for which the defendant is legally liable to pay him.

The judgment of the court below will, therefore, be reversed and the cause remanded, with directions to that court to render judgment in favor of the plaintiff for the amount stated in said affidavit of the sum due to the plaintiff as damages, besides costs.

Reversed and remanded.


text:
    Isaiah V. Williamson et al. v. Isaac Stone and Julia A. Stone.

      Trust Deeds — Sale under Power — Validity—Bill to Redeem — -Laches.
    Upon a bill to redeem from a sale under a power in a trust deed, it. is held: That the sale was of a character wholly unauthorized by the power; that it merely amounted to a private sale, though public in form ; that the right of complainant to redeem existed in full force when the bill was filed; and that the doctrine of laches has no application.
    [Opinion filed September 6, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Melville W. Fuller, for appellants.
    Mr. W. C. Goudy, for appellees.
   McAllister, J.

This case was before us at a former term of this court, upon appeal from the decretal order of the Circuit Court, denying the motion of the complainants to amend their bill as originally filed, in an essential particular, and dismissing the same for want of equity. On that occasion this court reversed said decree and remanded the cause with directions to permit the amendment. Stone v. Williamson, 17 Ill. App. 175, where may be found a statement of the case, which need not be repeated here.

Upon the cause going back to the lower court the proposed amendment of the bill was made, and the defendant made further answer setting up, amongst other things, the defense of laches on the part of complainants, to which the latter filed a replication.

Additional evidence was adduced and the case coming on to be heard upon pleadings and proofs, a decree passed allowing the complainants to redeem the premises from the trust deed in question by paying to Williamson all that was justly due him for principal and interest. From that decree he brings this present appeal, and his counsel, besides controverting certain allegations of the complainants below, seems to rely chiefly upon the ground of laches, because the alleged foreclosure by sale under the power took place December 22,1878, and this bill to. redeem was not filed until August 11, 1883. The rights of no third parties have intervened.

It seems to us clear, upon principal and reason, that if the sale in question was null, either because the power had become extinct, or because the sale, as made, was of a character wholly unauthorized by the instrument conferring a power of sale, the right of appellees to redeem must be regarded as existing in full force, and the doctrine of laches has no appli cation. Bergen v. Bennet, 1 Cai., Cas. 15. The power had not become extinct; but in the light in which we view it, the alleged sale was of a character wholly unauthorized by the power under which it was made. That power authorized only a sale at public auction. Where an agent is authorized to sell real estate at public auction, and he sells at private sale, the sale is void. Daniel v. Adams, 1 Amb. 495; Ewell’s Evans on Ag., marg. p. 122.

It appears from the evidence that the alleged sale was made in this way: On the day of the sale, but before it took place, Phelps, the trustee, without any authority from Williamson, express or implied, decided upon the price at which the property should be sold, and fixed it at §9,000; he also procured the attendance of an attorney at law who had been, and was then, acting as his own attorney, and suggested to him to bid for the premises on behalf of Williamson, the mortgagee or beneficiary under the trust deed, said sum of $9,000. ISTo other bidders were present; the attorney bid the sum which the trustee had decided upon, and notified him to bid, and the premises were formally struck off to Williamson, to whom the trustee executed his deed.

In our opinion, whatever formalities may have been observed in other respects, there was not, in any legal sense, a sale at public auction, simply because a price was previously fixed and determined upon by the trustee, and communicated to and acted upon by the person who ostensibly acted as bidder for Williamson in his absence, and without authority from the latter, so far as the record shows; but if he had authority, then the transaction amounted to a mere private sale, and was void. In Hibler v. Hoag, 1 Watts & Serg. 552, the court say: “In every sort of auction there are either successive bids .for the property, or successive offerings of it at different prices, in a way to provoke competition.” Crandall v. The State of Ohio, 28 Ohio St. 479 ; Campbell v. Swan, 48 Barb. 109.

In the light of the authorities cited we are inclined to the opinion that the alleged sale was null and void, so that at the time of bringing this bill to redeem, the appellee’s right of redemption existed in full force.

The evidence is voluminous and much of it immaterial, but without discussing it we feel at liberty to state that, in our opinion, there is sufficient evidence coming from the side ■ of the defendants below, upon whom rested the burden of showing a valid sale, to justify the court below in finding it null and void.

Decree affirmed.


text:
    The People ex rel. Josephine B. Dix et al. v. The City of Chicago.

      Mandamus — ■Petition—What Must Appear — Discretion—Sidewalks—• Ordinance — Evidence—Judicial Notice.

    1. A writ of mandamus will not be awarded unless the petition shows on its face a clear right to have the thing sought by it done, and by the person or body sought to be coerced.
    2. The court exercises a discretion in granting or refusing the writ.
    3. Upon a petition for a mandamus to compel the city of Chicago to lower a certain sidewalk, it is held: That the petitioner can claim no right under an ordinance not set out in the petition; that the time when, the place where, and the body by whom the alleged ordinance was passed, with a recital of so much of it as was material, should have been stated in the petition; and that the time when the walk was built should also have been stated.
    4. The courts do not take judicial notice of the Municipal Code of Chicago.
    [Opinion filed September 6, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This is an appeal from the judgment of the court below sustaining a demurrer to and dismissing the petition of appellants against the appellee, the City of Chicago, for a mandamus to compel the latter to lower or cause to* be lowered a portion of the sidewalk on the west side of Rush Street, between Illinois and Michigan Streets, in said city, down to an alleged established grade. The petition alleges that petition- . ers owned the real estate fronting east on said Rush Street known as numbers 28, 30,32, 34 and 36, and one Martin McNulty owned the remainder of the lots in the block, on the same side of said street, and known as numbers 18, 20, 22, 24 and 26; that the appellee had established a grade for a sidewalk along there; that petitioners had made the sidewalk in front of their lots conformably thereto, but that said McNulty had made one in front of his said lots which was from nine to twelve inches higher than the grade so established and that of the sidewalk of petitioners, thus making a step iti the said sidewalk which was unsightly and dangerous. The petition contains no statement as to the time when, or the materials out of which said walks or either portion thereof were made; whether made of plank or boards, gravel, stone or concrete, nowhere appears; nor is any fact or circumstance other than the fact that Mc-Nulty’s part was from nine to twelve inches higher stated to show that such part was a public nuisance in said street.
    The petition contained the following allegations:
    “Tour petitioners further represent that section 1924 of the Municipal Code of the city of Chicago provides that no part or portion of any sidewalk where the grade has been established, shall be laid or re-laid at any different grade or any other level than the adjacent portions of said sidewalks, and provides for a penalty for a violation of that section; and further provides that it shall be lawful for the department of public works to alter the same so as to make the same conform to the established grade; and that the costs and expenses of so altering the same may be recovered from the owner of the premises by the said city of Chicago.
    “Tour petitioners further show unto your Honors that the said city of Chicago, under and by virtue of its charter and the powers vested in it. by law, and through its proper officers, did establish the grade and level of said sidewalk in front of the premises aforesaid, and on the west side of Rush Street, between Michigan and Illinois Streets; and that in the establishing of such grade and the passing of the foregoing ordinance to enforce the same, the said city of Chicago has in all things acted according to law.”
    The petition contains a statement that the grade was estabished before said sidewalks were made, but none as to whether said section of the Municipal Code of the city of Chicago was an ordinance passed by the common, or city council of said city, or as to when it was passed, or that it had been passed before, or was in force at the time of making any part of said sidewalks, or as to what constituted said Municipal Code.

      Messrs. Wbigley, Buliclby & Gray, for appellants.
    Mr. Clarence A. Knight, for appellee.
   McAllister, J.

It is the settled law of the Supreme Court of this State, that the writ of mandamus is only to be awarded in a case where the party applying for it shall show a clear right to have the thing sought by it done, and by the person or body sought to be coerced; that the petition must show on its face a clear right to the relief demanded by the relator, who must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed. The People ex rel. v. Glann, 70 Ill. 232; The People ex rel. v. Davis, 93 Ill. 133. The court exercises a discretion in granting or refusing the writ, and if the right be doubtful it will be refused. Lavalle v. Soucy, 96 Ill. 467.

“ A writ of mandamus will be granted against municipal corporations and their officers whenever they refuse or unreasonably neglect to perform any duty clearly enjoined upon them by charter or statute or law, and there is no specific legal remedy adequate to enforce the right of the public or the specific legal right of the relator.” Dill. Municipal Corp. (1st Ed.) Sec. 665.

It is not claimed by counsel for appellants that they were entitled to the writ of mandamus on the ground that the statute or charter under which the city was organized imposed upon it the duty of keeping the streets in a reasonably safe condition, and that Kush Street, at the place in question, was not, as respected the sidewalk, in such condition, by reason of the rise therein of from nine to twelve inches, but in argument they base the right to such writ ujion the provisions of an ordinance.

The short answer to that contention is, that no ordinance of the city of Chicago is set out in the petition as in force at the time when the sidewalks, or either of them, in question, were made.

There is no such thing known to the laws of this State as the “ Municipal Code of Chicago ” mentioned in the petition, and of which the courts can take judicial notice. Hence the a1 leged ordinance, like any other matter of fact, should have been set out 'in the petition, if any rights were to be based upon it. Dill., Sec. 346; Trustees v. Lefler, 23 Ill. 90; Harker v. Mayor, 17 Wend. 199.

The rules of pleading applicable to such a case must necessarily be analogous to those which obtain in cases where rights are predicated upon a private statute. It was indispensable that the time when, the place where, and the body by whom the alleged ordinance was passed, with a recital of so much of the ordinance as was material, should have been stated and embodied in the petition in some manner that would admit of a proper traverse by the opposite party. Gould on Pl., 3d Ed., Chap. 3, Sec. 16; 9 Bac. Abr. Statute L., p. 261.

The petition fails to show when either sidewalk was made. It may have been more than twenty years before the petition was filed. It also fails to show of what material or how they were made. The petition was clearly insufficient, and the judgment should be affirmed.

Judgment affirmed.