text:
    Salome E. Butler v. Bridget Merrick.

      Partnership—Existence of-—Speeial Agreement—Construction—Profits and Losses.

    1. In an action to charge "the defendant as surviving partner of her brother, who was indebted to the plaintiff at the time of his death, it is held: That as between the defendant and her brother there was no partnership, their minds never having met on that proposition; that a certain agreement, the contents of which were unknown to the defendant, did not con. stitute them partners; and that the credit in question was not extended on the belief that they were partners.
    2. Participation in profits and losses is not conclusive of the question whether a partnership exists.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Ckeiqhton, Judge, presiding.

      Messrs. J. A. McClernand and N. M. Broadwell, for appellant.
    It appears from the evidence that Speed Butler sank, or constructed, this shaft in 1880, and in December of that year commenced the business of raising and selling coal.
    About this time Speed Butler, in view of forming a partnership with his brother Wert, adopted the name ánd style of 6‘ Speed Butler & Go.,5’ and under that name and style carried on the business of the shaft up to the time of his death.
    Thus the origin and continuation of the firm name is fully explained and shown; and it does not appear that appellant had any, the slightest, agency or instrumentality in coining the firm name or in holding the same out to the world. She is, therefore, not responsible for the conduct of her brother Speed, in doing business under a name and style which implied a partnership between him and some other party or parties.
    To make appellant liable as a partner, upon the ground that she held herself out as a partner, it must not only appear that she did hold herself out as a partner, but it must be further shown that appellee had knowledge of such fact, and gave credit on the faith of it. Bowen v. Rutherford, 60 Ill. 41.
    A partnership can not be proven by general reputation, and a person can not be made a partner in fact or in appearance, so as to bind him, except by his consent, admissions or acts. The declarations or acts of others can not bind him. Bowen v. Rutherford, 60 Ill. 41; Bishop v. Georgeson, 60 Ill. 484.
    The provision found in the paper, that the profits and losses shall be divided in a certain way between the parties, does not, in law, constitute a partnership. This stipulation no more implies a partnership than it does a joint adventure as tenants in common. It is as applicable to the latter as it is to the former.
    It is accordingly held that such" a provision does not necessarily constitute a partnership between the parties. Niehoff v. Dudley, 40 Ill. 406; Dwinel v. Stone, 30 Me. 384; Donnell v. Harshe, 67 Mo. 170; Rice v. Austin, 17 Mass. 197.
    In Niehoff v. Dudley, it is said by the court, page 409:

      “There is no absolute rule of law that a participation in the profit renders the participant a partner. It is only a presumption of law which prevails in the absence of controlling circumstances, but is controlled by them. This seems to be the extent of the rule announced by the authorities. And there is no hardship on third persons when the party does not hold himself out as a pazdner.”
    Messrs. Palmers & Shutt, for appellee.
    The contract was, by its vez-y terms, executed. By the terms of the agreement, by present words of grant, “ he hereby sells to the party of the second part, the one-fourtlz intez’est in the coal mine known as the Black DiamondMine,” and provides that one-quarter of the gains and losses shall, from that time, belong to his grantee.
    Thez’e must always be a distinction in law as well as in fact, between an agreement for the formation of a partnership to embark in a new business and the sale of an interest in, or the admission of a new partner to an established business—a going concern. In one case a great variety of acts preparatory to the commencement of business must be performed ; in the other case the business does not begin, it only continues..
    “When an existing partnership takes in a new partner by .a written instrument signed by the old member's and the new» which instrument recites the payment of a certain sum by the incoming partner, and conveys to him one-third interest inthe assets, and consents that he shall have one-third interest in the profits, the new partnership is complete on the execution of the instrument.” Phillips v. Hash, 47 Ga. 218; 1 Lindley on Partnership, 27.
    Evej'ything was done at and before the execution of the agreement which could be done to make it an executed one» and after the signing of the contract everything was done that can be imagined in order to carry it into effect.
    It is an universal rule, that if one is a partner in fact he will be liable whenever discovered without any reference to his own acts or conduct with z'espect to the firm business.
   Wall, J.

The appellant was sued as surviving partner of Speed Butler, deceased. She denied by the proper pleading all liability as such partner, and thus presented the only issue of fact in controversy.

It was not disputed that the plaintiff below had a valid claim against Speed Butler and against appellant also, if, upon the facts, appellant could properly be treated as a partner.

Speed Butler had opened a coal mine upon a tract of land which seems to have belonged to his minor children. In doing so he became indebted to the appellant, his sister, in the sum of $13,000, and to secure her the following paper was executed:

This agreement entered into this-day of May, A. D. 1881, between Speed Butler, as trustee of Anna S. Butler, Jennie E. Butler and Arnold W. Butler, of the County of Sangamon and State of Illinois, the party of the first part, and Salome E. Butler, trustee, of the same place, the party of the second part.

“ Witnesseth, that the party of the first part hereby sells to the party of the second part, in consideration of the sum of thirteen thousand dollars, and the agreements of the party of the second part hereinafter mentioned, the one-fourth (J) interest in the coal mine known as the Black Diamond Mines situated on the southeast quarter (J) of section 4, township 15 north, range 5, west 3d P. M., in the County of Sangamon, State of Illinois, under the conditions following:

“First. One-quarter of one cent on each bushel of coal, to be deducted and paid to Speed Butler at the end of every month on all coal hoisted and sold in said month, as royalty, and this amount as royalty to be paid before anything else is paid from the proceeds of said mine.

“Second. Speed Butler to have entire management and control of all matters in connection with said mine.

Third. 'A full and satisfactory settlement to be made at the end of each month, and whatever losses or gains of that month to be divided, one-quarter of such gains or losses to belong to Salome E. Butler and the remainder to belong to Speed Butler.

“Fourth. All coal to be taken from under the land belonging to the heirs of said Speed Butler, and no coal to he taken out of said coal shaft from any other source, without the full consent and approval of said Speed Butler.

“Fifth. In case of the death of said Speed Butler, his executors, administrators or trustees to have the same authority as he himself now has in the premises.

“Sixth. If at any time this quarter interest now sold in said mine is to be resold, Speed Butler is to have the right to be first purchaser, if he so desires, at whatever price may be offered by any other bona fide purchaser, and this quarter interest can not be resold to any party that may be objectionable to said Speed Butler.

“ Seventh. If at any time it should be considered by the parties advisable to connect tile works” with said mine, the expense of so doing will be in the same proportion as one to three, and the profits or losses therefrom will likewise be in the same proportion.

“ In witness whereof the parties have hereunto set their hands and seals the day and year first above written.

“ Speed Butler, [seal]
“ Salome E. Butler.” [seal]

The party of the first part hereby agrees to watch over and protect this interest in the same manner as though it belonged to himself.

61 Speed Butler.”

The appellant testified that she did not read the paper, and only signed it because her brother told her to do so; that she did not know its contents and supposed it merely gave her security upon the property. It was never in her possession. She had no idea there was anything in it creating a partnership or any other liability on her part, and though she subsequently advanced §5,000 more to her brother, she never received anything from him in the way of a statement, or otherwise, to indicate such a relation. Her name did not appear on the books of the concern, which was conducted under the style of Speed Butler & Co., nor" was there anything in the accounts to show that she was in any wise connected with the business. She was never consulted about the management of it, was never at the mine but once, and the only transaction she had there was in the purchase of some coal for her own use. Speed Butler died in April, 1885, and appears to have been considerably in debt on account of his mining operations. Then for the first time appellant heard the claim made that she was liable as a partner.

It is not proved that she ever said or did anything from which a partnership can be inferred, aside from the execution of the paper above quoted.

This paper was spread upon the records of Sangamon County, June 13, 1881. The effect of so recording it need not be considered in the present case, for the reason that it does not appear the appellee ever knew of the existence of the paper or that it had been so recorded. As between the appellant and Speed Butler there was no partnership, for the reason that the minds of the parties never met on that proposition.

It is not at all probable that Speed Butler ever considered a partnership was thereby or otherwise created, and it is certain that she never so understood it.

The mere signing of this paper, not knowing or misapprehending its contents, would not make her a partner as between her and her brother. If the paper is such as to constitute a partnership according to the legal effect of its terms, and if a third person, relying in good faith upon the information derived from it, is induced to furnish goods or give credit upon the belief that the persons executing it are bound as partners, then a different question will arise. So far as this record discloses, the parties were not, as between themselves, partners, nor has the appellant done or said anything, on which appellee may or does rely to incur such a responsibility. Upon the undisputed facts in proof we have no hesitation in holding there was no partnership.

We deem it unnecessary to discuss the provisions of the instrument in question. It is assumed by counsel for appellee that a participation in profits such as here stipulated for will constitute a partnership. Such may be a presumption, but it is not conclusive, prevailing in the absence of controlling circumstauces, and subject to be so controlled. If, upon an inspection of the whole instrument, it can not be inferred reasonably that a partnership was designed, then none would be inferred from this single provision, Niehoff v. Dudley, 40 Ill. 406; Story on Partnership, Sec. 38; Bowen v. Rutherford, 60 Ill. 41.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Mary Bainter v. George Lawson.

      Landlord and Tenant—Distress—Evidence—Conflict of—Notice of Termination of Agency—Question for Jury—Instructions.

    1. Where there is a sharp conflict in the evidence this court will not interfere with the verdict of the jury, unless there is some substantial error in the record which probably contributed to the result.
    2. In an action of distress for rent, unless the warrant contains an allegation or charge that the defendant by good husbandry might have made a better crop, evidence to that effect is inadmissible.
    3. In the case presented, it is held.: That the question whether the defendant had notice that the agency of a third person had terminated, was for the jury: that a certain conversation between him and such third person was properly admitted; and that there was no substantial error in giving and refusing instructions.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Hancock County; the Hon. William Marsh, Judge, presiding.
    Messrs. Hooker & Edmunds, for appellant.
    Messrs. O’Harra & Scofield, for appellee.
   Wall, J.

This was an action of distress for rent by appellant against appellee. The warrant was levied by the Sheriff upon a quantity of corn.

The defendant by plea denied that he owed anything to plaintiff. Upon a trial in the Circuit Court a verdict was rendered in favor of defendant, which the court declined to set aside, and the case is brought here by the appeal of the plaintiff. Numerous points have been presented for our consideration, but the most important, and, as we think, the controlling question, is one of fact, whether the rent was paid according to the terms of the lease; and this again is narrowed to whether the grain rent was to be delivered on the farm or hauled to La Harpe. It is unnecessary to state in detail the various phases of the case as disclosed in the evidence or to comment upon the proofs. There was a sharp conflict but no such preponderance either way as to require this court to interfere with the verdict, and unless there is some substantial error in the record which probably may have contributed to the result, we can not disturb the judgment. It is urged that the court excluded evidence offered by plaintiff tending to show that the defendant by good husbandry might have made a better crop and thereby increased the amount of rent to be received by the plaintiff. The distress warrant which, under the statute, Sec. 20, Ch. 80, stands for a declaration and is amendable as such, contained no allegation or charge under which such proof could be admitted, nor does it appear that leave was desired to amend for such purpose. There was no error in this ruling.

It is claimed the court erred in allowing proof of the conversation between Abram Bainter and the defendant, in reference to an alleged sale of the corn to the latter. It is a matter in dispute whether, when this transaction occurred, the defendant had been advised or notified that the agency of Abram Bainter had ended. If he was not so informed he might rely upon any arrangement made with him in reference to the matter and to prove what the arrangement was he might state the conversation. Upon his theory of the case the defendant was entitled to make this proof, and it was for the jury to determine the questions of notice and good faith that were involved therein.

The appellant complains that all the instructions given for appellee except the 6th and 7th are erroneous. The objection urged to all these, except the 9th, is mainly that the evidence did not warrant them. It would require an extended reference to the proof to discuss intelligibly this point as to each and all of the seinstruetions. We deem it not necessary to do so, and it is sufficient to say that we find no substantial ground of complaint in this respect. The 9th advises the jury that the notice of termination of tenancy, which was served on the 23d of December, was not to be considered by the j ury so far as the substantive parts of it were concerned; that it was admitted only for the purpose of making certain a date and was not to be considered by the jury for any other purpose. The record is not perfectly clear, whether this notice was allowed to be read in the first instance for this purpose only, or whether it was admitted generally. But if the latter is true the court bad the right to make the limitation found in this instruction if such was the only purpose for which it was properly admissible. After considering all the evidence Ave are inclined to agree with the Circuit Court upon this point. It does not occur to us in what way this notice tended to prove, or disprove, the matter in issue, and if it had any evidential force it was to establish a date merely. At any rate v e are unable to see any substantial error in this action of the court.

The appellant complains of the refusal of the court to give the 6th, 7th and 8th instructions. The refusal to give the 6th is disposed of in what has been said as to the giving of the defendant’s 9 th. The substance of the 7th, so far as it is really pertinent and proper to be given, is covered by the 9th given for plaintiff. The 8th was modified and then given, the modification being the subject of objection. We regard it as unimportant. The court gave ten other instructions for plaintiff, embracing all that was necessary to a correct understanding of the legal principles involved in the case. It is not apparent that the appellant has any just cause of complaint in this respect.

Finding no substantial error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    John B. Hunter v. Urban B. Harris, Administrator.

      Evidence—Promissory Note—-Action on by Administrator—Issue as to Genuineness—What may be Shown—Possession—Time and, Place of Execution—Evidence Tending to Disprove Execution—Relevancy of—Practice.

    1. Possession of a note declared on is evidence tending to show its delivery. The plaintiff may be permitted to show how long he has had possession of the note to aid the presumption arising from such possession.
    2. In an action by an administrator on a promissory note, alleged to . have been made to his intestate, the execution of which is denied, the plaintiff may show that the note existed prior to his appointment, among the other papers of the deceased and in the place where he usually kept such papers.
    3. While the evidence must correspond with the allegations and be confined to the point in issue, it is not required that it shall bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof. It is relevant if it conduces to the proof of a pertinent hypothesis.
    4. It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable.
    5. Where the genuineness of a promissory note is in issue the defendant may show such facts as would exclude the possibility or probability of its execution at the time and place indicated upon its face.
    6. While the date of a note is prima facie evidence of the time of its execution, it is not conclusive.
    7. Where error has intervened in the trial of a cause, the judgment will be reversed, unless it appears that such error has not affected the result.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Allen, Brown & Brown and Palmers & Shutt, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Wall, J.

This was an action of assumpsit by the appellee against the appellant to recover the amount of a promissory note for $10,000 alleged to have been made by appellant to Smith, the appellee’s intestate, dated March 6, 1880, payable five years after date with six per cent, interest.

The declaration contained a special count on a note and the common money counts.

The pleas were, 1st, non-assumpsit; 2d, a plea especially denying the execution of the note, both verified by affidavit. There was a trial by jury and a verdict for plaintiff for the amount of note and interest. A motion for new trial was overruled and judgment was rendered upon the verdict. The record is brought here by appeal. The points made in the brief of appellant are, 1st, the court admitted improper evidence for plaintiff; 2d, the court excluded proper evidence offered by defendant.

The first point is based upon the admission of the testimony of a daughter of the payee of the note, to the effect that she saw it in his possession, in a poqket book containing other like papers, some two months before his death.

The possession of a note declared on is evidence tending to prove its delivery, and while it is true nothing more on that point is usually required, we see no reason why the plaintiff may not be permitted to aid the presumption arising from such possession by showing how long he had had such possession.

'Where a suit is brought by an administrator upon a note alleged to have been made to his intestate and the execution of the instrument is denied, it is certainly competent to show, as a link in the chain, that the plaintiff did not commit the forgery, by proof that it existed prior to his appointment and that it was then among the other papers of the deceased and in the place where he usually kept such papers.

Such proof tends to show that a regular and orderly cause which is consistent with and to be expected in a hona fide transaction. It also tends to narrow and fix the period within which the instrument was forged, if ever. The evidence was competent, and there was no error in admitting it.

The second objection is based upon the exclusion of evidence offered by the defendant to prove that on the date of the note, March 6,1880, the defendant and the intestate had but one transaction, and that of such a character as to preclude the belief, as is assumed, that the promissory note in suit could have been executed by the defendant or in contemplation by him.

Briefly stated this evidence tends to show that the deceased, who lived in Greenville, Bond County, went to see Hunter at his home, Buffalo, Sangamon County (where the note sued on purports to have been made), for the purpose of getting him to do something on account of past transactions wherein he, Smith, had made many payments as surety for Hunter, who had since then obtained a discharge in bankruptcy.

He stayed at the house of Hunter over night and until time to take the 10 o’clock train the next day, which was the 6th of March, 1880, the day the note sued on bears date.

There was some writing done that morning by Hunter, and the excluded evidence tends to show that the only paper so written was the following:

“ John B. Huntee, President
“ Western Live Stock Company,
“Buffalo, Ill., 3-6, 1880.
“ W. S. Smith, Greenville, Ill.

“Dear Sir:—I have concluded that, owing to our failure and you having to pay money for our old firm, that I would pay you in 1882 $5,000, provided I don’t have to pay any money in on your account to the Bank of Commerce; if so, the amount to be deducted from this amount together with any costs that may accrue.

“ Yours very truly,
John B. Huntee.”

Shortly afterward Smith went to the train and returned to his home. After leaving the house and while on his way to the train he said that Hunter had given him this paper obligating himself to pay $5,000, and that while he was not satisfied with the settlement he had settled with him. He made declarations to the same effect on subsequent occasions. This paper was marked “ renewed ” and bore the indorsement of Smith in his handwriting, which indorsement had been erased. The evidence also tended to prove that Hunter afterward paid Smith §250, and gave him his note for §4,750, which note was transferred to St. Louis creditors of Smith, pursuant to an arrangement which was under consideration when some of Smith’s declarations referred to were made. As we understand it, this paper dated Buffalo, March 6th, and the note of §4,750 were in Hunter’s possession, and were by him offered in evidence. Hence it is presumable he had taken them up by payment or renewal, or in some other way satisfactory to the holder. Various items of evidence, such as a letter to Hunter written by Smith asking for money on this agreement, the kind of ink in use at Smith’s place of business, and that in which the body of the note sued on was written, etc., which were subordinate to what has been stated and need not be further specified, were also offered and excluded.

It is argued by counsel for appellee that the court properly excluded all this evidence, because the issue to be tried was as to the execution of the note in suit; and that while the fads thus offered in proof may have been true, they in no way tended to prove the non-execution of the note.

It is an established rule, governing in the production of testimony, that the evidence offered must correspond with the allegations and be confined to the point in issue. It is not necessary, however, that it should bear directly upon the issue. It is admissible if it tends to prove the issue or constitutes a link in the chain of proof, although it might not justify a verdict in accordance with it; but the rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute. 1 Greenleaf on Ev., 51, 52, 57a.

Evidence is relevant if it conduces to the proof of a pertinent hypothesis, a pertinent hypothesis being one which, if sustained, would legally influence the issue. It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable. Whatever is a condition of the existence or non-existence of a relevant hypothesis may be shown, but no circumstance is relevant which does not make more or less probable the proposition at issue. Wharton on Ev., Secs. 20, 21.

The issue was the execution of the note, the plea devolving the burden of proving the allegation as at common law.

There was no doubt proof on the subject, the only evidence being the fact of possession by the deceased, and the opinions fro et con of witnesses as to the genuineness of the signature.

The evidence which was rejected tended to show a state of facts somewhat inconsistent with the hypothesis of the plaintiff—to make less probable the proposition asserted by the plaintiff. True, it did not conclusively disprove the execution of the note, but it tended to show a condition of. things from which the non-execution of the note was a reasonable inference. The date of a paper is prima facie presumed to give correctly the time of its execution and delivery if it is genuine. Wharton on Ev., Secs. 977, 1312; Abrams v. Pomeroy, 13 Ill. 298.

Surely it is competent to show such facts as would exclude the possibility or probability of its execution at the time and place purported, as, for example, that the supposed signer was then in a physical state that prevented him from writing his name; that he was confined in an insane asylum, or from some other cause was incapable of doing the act in question.

On the other hand it would have been competent for the plaintiff to prove such a situation as would render it natural and probable that the note was made as alleged, for example, an indebtedness sufficient to support it, or an admission of that fact by the defendant and a promise to execute a note for the amount.

In Wharton on Ev., Sec. 20, it is said that where one who is sued on a bill sets up forgery-to meet this hypothesis, it is admissible for the plaintiff to prove that at the time the defendant was trying to borrow money. If the hypothesis set up by the defense is fraud, then all facts which are conditions of fraud are relevant.

The business relations of the parties might throw much light upon the question whether the note was probably made.

We are therefore of opinion it was error to exclude the substantial portions of the evidence referred to. It does not follow as a matter of course that plaintiff can not recover because it may appear the note was not executed at the time and place it purports, but such proof would be proper to consider in determining whether it was ev.er executed, and might have more or less weight when so considered in connection with all the evidence in the case.

When it appears that error has intervened in the trial of a cause, the judgment will not be reversed if it is clear that, notwithstanding the error, the result would have been the same. It can not be said with any degree of confidence that such would have been the case here. •

We do not undertake to decide what might or should have been the conclusion of the jury had the testimony been admitted.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Emerson, Talcott & Company v. Rozella Marks.

      Wills—Life Interest in Lands—Execution against Devisee—See. 3, Chap. 77, B. S.

    1. Real property devised to a daughter, “to hold as long as she lives, without the privilege of selling it to any person, and at her death * * to go to her children, if any,” is not subject to sale on execution against her.
    2. Sec. 3, Chap. 77, R. S., authorizes the sale under execution of only such interests as may be disposed of by the debtor himself.
    [Opinion filed February 17, 1887.]
    In- error to the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.
    Mr. Thomas J. Smith, for plaintiff in error.
    Mr. J. O. Cunningham, for defendant in error.
   Wall, J.

David Shirk, of Park County, Indiana, by his last will gave to his daughter, Bozella Marks, a tract of land containing eighty acres, in Cham paign Connty, Illinois, “ to hold as long as she lives, without the privilege of selling it to any person, and at her death it is to go to her children, if any.”

The question presented by this record is whether the interest of the devisee is subject to sale on execution against her. She is in possession of the land and has been since the death of the testator. There can be no doubt that the limitation placed upon the devise, whereby the devisee was prevented from selling, is valid, and may be enforced by the appropriate legal means.

It is not within the rule against perpetuities. The manifest purpose of the testator was to give the use and enjoyment of the land merely, a purpose lawful in itself, not inconsistent with public policy, and induced, as it must be presumed, by sound reasons satisfactory to the testator. If this design can be frustrated by obtaining a judgment against the devisee and selling the land under execution issued thereon, the limitation is of little or no value. By this means a sale might readily be effected in direct contravention of the plain provision of the will.

In Waldo v. Cummings, 45 Ill. 421, the court upheld a testamentary provision that the property therein disposed of should not be subject to the debts of the legatees.

The will having so provided, and being recorded, all persons had notice of what it contained, and no one would give credit to the legatees with the belief that the fund could be rendered liable for the debt; and it was said that when the testator declared that the fund should be beyond the reach of the creditors of the legatees, he only exercised a right given to him by law in disposing of his property. In the case of Steib v. Whitehead, 111 Ill. 247, the testator devised to trustees certain real estate, upon the trust to rent the lands and tenements, make repairs, pay taxes and insure the buildings, and to pay the remaining rents and income in cash to his daughter J., in person, and not upon any written or verbal order, nor upon any assignment or transfer by said J., and at the death of said J. the lands should vest in the heirs of her body.

The question there presented was whether the money so derived by the trustees could be reached by process of garnishment at the instance of the creditors of the said J. It was answered in the negative. Thus the only provision involved was, in substance, like the one in the case at bar-—a prohibition against a sale by the beneficiary; but to render it effective it was obviously necessary to guard the fund against the demands of creditors. The court said the creditors had no ground to complain that they had been misled by the provision made by the father. It was his own bounty, and, so far as they were concerned, he had a right to dispose of it as he pleased. Counsel seek to distinguish that case, because the property was given-in trust, but the distinction is unimportant. The principle involved must be the same, whether the property is devised in trust or placed directly in the hands of the donee.

The limitation can be made effectual only by declaring that no indirect means shall accomplish what is lawfully forbidden by the will.

Sec. 3 of Chap. 77 can not be made applicable. It must be intended to authorize the sale upon execution of such interests only as the debtor would have the power to dispose of—interests unfettered by restraints upon transfer. It would be anomalous if any interest which a debtor could not sell, and which he could enjoy only by its use, might be sold by his creditor, and thus the lawful purpose of the donor defeated.

We are of opinion the Circuit Court ruled properly in quashing the levy, and the judgment will be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Chicago & Alton Railroad Company v. Henry M. Hunt and William Kessinger.

      Railroads—Escape of Eire from Locomotives—Precautions Required— Rule—Instructions.

      1. It is the duty of railroads to use every possible precaution to prevent loss to others through the escape of fire or sparks from their engines, by the highest degree of diligence in ascertaining and adopting the best or most approved mechanical inventions and appliances to prevent the escape of fire.
    2. In an action against a railroad company to recover damages for the alleged burning of a building by sparks emitted from the defendant’s locomotive, it is improper to instruct the jury that it was the duty of the defendant to use “ all the best and most approved mechanical inventions ” to prevent loss from the escape of fire or sparks from its locomotives.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of Green County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Brown & Kirby, for appellant.
    Messrs. Mark Meyerstein and John I. Rinaker, for appellees.
   Conger, J.

This suit was brought by appellees to recover damages for the alleged burning of their elevator by sparks emitted from one of the Jocomotives of appellant at White Hall, Blinois, on the 9th day of July, 1885, and they recovered a judgment for 88,022.50.

The first instruction given for appellees was as follows: “No. 1. The court instructs the jury for the plaintiffs, Hunt and Kessinger, that if they believe from the evidence that the plaintiffs’ elevator and contents of same, in question in this suit, were destroyed by fire on or about the 9th day of July, 188'5, by fire or sparks escaping from the defendant’s locomotive while passing along the railroad, in manner and form charged in plaintiffs’ declaration or any count thereof, then, under the laws of this State, the plaintiffs have made out a prima facie case of negligence of the defendant, and by law the burden of proof is then upon the defendant to overcome such prima facie case of negligence by a preponderance of the evidence ; first, that the defendant used, at the time it is charged the elevator was destroyed by fire, as above stated, every possible precaution by the use of all the best and most approved mechanical inventions on the locomotive then used tp prevent loss from the escape of fire or sparks from such locomotive along the line of its road; second, that such locomotive engine and all such appliances to prevent loss from escape of fire or sparks, as above stated, was at the time in good repair; lastly, that said locomotive engine was at the time carefully and skillfully handled by acompetent engineer.”

We do not think this instruction correctly states the law. It informs the iury that it is the duty of appellant “to use every possible precaution, by the use of all the best and most approved mechanical i/nventions on the locomotive then used, to prevent loss from the escape of fire or sparks from such locomotive along the line of its road.” This is stating the rule too broadly. Railroads can not comply with its requirements, although they may have the very best mechanical inventions known, unless such inventions have also been so generally used upon railroads as to be regarded as approved, the road would be in fault.

On the other hand, although appellant might use those inventions in general use and generally approved by those having skill and experience in such matters, still if it could be shown that there existed a better invention which had not come into general use, and of the existence of which perhaps appellant, by the highest degree of diligence, could not know, it would be condemned under the language of this instruction-

We think a compliance on the part of appellant with either branch of the proposition would absolve it from liability.

If appellant could show that the mechanical contrivance used upon its engines for arresting sparks was better and more effective to accomplish that purpose than any other, it would surely have performed its duty, although it might be shown that such contrivance had not come into general use, and therefore had not been approved by railroads generally. On the other hand, in the language of the Supreme Court in T., W. & W. Ry. Co. v. Com’r, 71 Ill. 496, “ The rule announced in these cases only requires the use of the most approved machinery, but not the best known that mechanical skill and ingenuity can devise and construct, whether approved or even unknown to appellants or perhaps beyond their means of being known by the use of all reasonable efforts.”

We think the true rule is that it is the duty of railroads to use every possible precaution to prevent loss to others by escape of fire or sparks of fire from their engines, by the highest degree of diligence in ascertaining and adopting the best or the most approved mechanical inventions and appliances to prevent the escape of fire.

One of the vital questions made in the case was as to whether appellant had complied with its duty in providing the locomotive, from which it is charged the fire originated, with proper safeguards against emitting sparks. Hence the error in this instruction was fatal to a fair and proper presentation, of the question to the jury, and requires a reversal of the judgment, that, upon a new trial, the law upon this question may be properly given to the jury.

We see no objection to appellees’ ninth instruction, but think it is supported by Sec. 104, of Chap. 114, R. S.

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

Reversed and remanded.


text:
    Nathaniel N. Winslow v City of Bloomington.

      Municipal Corporations—Nuisances—Ordinance—Soap Factory—Fine —Instruction—Conflict of Evidence—Question for Jury—Trial—Discretion.

    1. Where the evidence is conflicting and the jury do not appear to have been influenced by prejudice or passion, the court will not interfere with the verdict.
    2. In an action under a city ordinance to have a fine imposed on the defendant for conducting a soap factory and tallow chimdlery in such a manner as to be foul and offensive, it is proper to instruct the jury that the defendant has no right to carry on such a business in a populous city unless it can be done without emitting offensive and noxious odors so as to be detrimental and offensive to the people of its locality.
    3. A trial court may, in its discretion, require a case to be closed within a particular time.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. William E. Hughes and Kerrick, Lucas & Spencer, for appellant.
    Mr. W. E. Gapen for appellee.
   Conger, J.

This was a suit originally brought before a Justice of the Peace, by the city against appellant for an alleged violation of the following ordinance of the City of Blooming-ton.

“Sec. 16. Whoever shall hereafter erect within said city, any soap factory, tallow chandlery, tannery, distillery or brewery, without permission of the City Council, or whoever, with such permission, shall conduct any establishment of the character aforesaid in such manner that the same shall become foul or offensive, or shall emit or give out bad, offensive or unwholesome smells or odors to the annoyance or detriment of any community, family or person, shall be deemed guilty of a nuisance, and on conviction shall be fined not less than twenty-five dollars nor more than one hundred dollars.”

The information on which suit was brought states “ that at said city, on or about the 17th day of August, 1885, one ¡Nathaniel ¡N". Winslow did conduct an establishment of the character of a soap factory and tallow chandlery in such a manner that the same was foul and- offensive and emitted and gave out bad, offensive and unwholesome smells and odors, to the annoyance and detriment of the community of Albert Street and of divers families and persons in the fourth ward in said City of Bloomington, contrary to the ordinances of said city in such case made and provided.”

The case was appealed to the Circuit Court, when, upon a trial, appellant was fined §25, and he brings the case to this court and asks a reversal upon two grounds: First, that the verdict of the jury was contrary to the evidence; and secondly, the court erred in giving the first of appellee’s instructions.

The evidence is very voluminous and it would subserve no useful purpose to enter into a discussion of it.

A large number of witnesses testify to offensive and unwholesome smells and odors proceeding, as they think, from appellant’s factory, while on the other hand a still larger number upon the part of appellant reach a different conclusion, some thinking the bad odors noticed in the neighborhood proceeded from other sources, and others again testifying that appellant’s factory was kept as clean as a place of that kind could be.

The question was fairly submitted to the jury, and it was their province to determine whether appellant’s factory was conducted in such manner as violated the provisions of the ordinance. We see no evidence of prejudice or passion upon their part, so far as the record discloses,-and we do not feel justified in interfering to disturb their finding.

Complaint is made of appellee’s first instruction, which is as follows:

“ 1. If the business of a soap factory and tallow chandlery can not be carried on without emitting offensive and noxious odors, so as to be detrimental and offensive to the people of that portion of the city where located, then the owner of such factory has no right to carry on such business in a populous city, and it is no defense to say it was conducted as well as it could be.

A number of witnesses were examined by appellant to show that the premises were kept clean and the business properly conducted, one witness stating, “It (appellant’s factory) is kept as clean as a place of that kind can be.”

The jury, without knowing the rules of law governing such a business, might conclude that if appellant used reasonable diligence in keeping his premises as clean as a soap factory and tallow chandlery could be kept, that he would not be answerable for offensive smells emitted from his factory under such circumstances, and we see no objection to the court instructing them as to the law upon that point.

The objections made to this action of the court in requiring the case to be closed within a particular time are not well taken, as we think the court did not abuse the discretionary power vested in it, but acted fairly and with a due regard for the rights of all parties to the cause. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    City of Bloomington et al. v. Charles Blodgett.

      Municipal Corporations—Special Assessment—Excessive Levy—Remedies—No Jurisdiction in Equity—Injunction.

    1. A municipal corporation may proceed to assess and collect a special assessment based upon an estimate made in conformity with Secs. 20 and 21, Art. 9, Chap. 24, R S., although such estimate may exceed the actual cost of the proposed improvement.
    2. When it clearly appears that there has been an excessive levy, such excess becomes a legal defense, pro tanto, which may be interposed before the confirmation of the assessment, or when the collector applies for judgment against the property assessed.
    3. All proper objections and defenses arising subsequently to the confirmation of an assessment may be set up when the collector seeks judgment.
    4. A bill in equity does not lie to enjoin the collection of an excessive levy for a special improvement, there being an adequate remedy at law.
    [Opinion filed February 17, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. A. E. DeMange, City Attorney, for appellants.
    A court of equity will never enjoin the collection of a tax except when such tax is unauthorized by law or the property taxed is not subject to taxation; nor even in such cases without special circumstances showing that the collection of the tax would work irreparable injury or canse a multiplicity of suits. Cook County v. C., B. & Q. R. R. Co., 35 Ill. 460; McBride v. City of Chicago, 22 Ill. 574; City of Ottawa v. C. & R. I. R. R., 25 Ill. 29; Brown v. City of Chicago, Vol. 7, No. 2, N. E. Rep. 108; Moore v. Wayman, 107 Ill. 192.
    A special assessment is a tax within the above rule. Cook County v. C., B. & Q. R. R., 35 Ill. 460, 467.
    The amount of an assessment and all matters upon which apjiellee could have been heard in the trial for confirmation of the assessment, and, on application by the county collector for judgment against the real estate for a sale thereof, are res adjudicata. People v. Brislin, 80 Ill. 423; Andrews v. People, 84 Ill. 28, 33.
    The court had no power to grant the relief sought by the amended bill. Starr & C. Ill. Stat., p. 2101, Sec. 224; Moore v. Wayman, 107 Ill. 192.
    Appellee has an adequate remedy at law in assumpsit. Cook County v. C., B. & Q. R. R. Co., 35 Ill. 460, 467.
    Messrs. Blandes & Neville, for appellee.
    If appellee had paid the full amount of the assessment he would have been entitled to recover back the excess. Cooley on Taxation, 463.
    Not having paid it, equity will not require him to pay more than his proportionate share of the cost, and will restrain appellants from clouding his title by sale to make the amount of the excess to which the city is not entitled. High on Injunctions, Sees. 372, 524, 525, et seq,; Chirstie v. Hale, 46 Ill 117; Bennetv. McFadden, 61 Ill. 334; Groves v. Webber, 72 Ill. 606.
   Conger, J.

This was a bill in chancery praying an injunction to restrain the City of Bloomington and the county col. lector of McLean County from advertising or selling certain real estate belonging to. appellee, or otherwise attempting to collect a special assessment of $132.50 levied upon town lots of appellee for the purpose of constructing a sewer in the City of Bloomington.

The bill alleged that an ordinance for the construction of such sewer was passed and commissioners appointed to report an estimate of its costs; that they made a report estimating the cost at $3,900, which was affirmed; that a petition was filed in the County. Court for the appointment of commissioners to make a special assessment, which they did, and it was confirmed by the County Court.

That said commissioners assessed the city for public benefit, $1,611, and the balance of the $3,900 upon lot owners, assessing appellee’s lots at $132.50; that afterward the contract for the construction of such sewer was let for $2,900, or about $1,000 less than the estimated cost and assessment; that the city had already collected from lot owners an amount which, if added to the amount assessed against the city, would exceed the entire cost of the sewer. By an amendment subsequently made, it was alleged that the proportional sum which appellee should pay upon his lots, taking the contract as the basis of the costs of the sewer, would be about the sum of $98.53, which sum appellee offered to pay, and prayed the balance should be enjoined.

The court below decreed that appellee pay to the clerk of that court, for the use of the city, the said sum of $98.53 with interest, and that as to the balance the injunction should be made perpetual.

It is clear that appellee should have some remedy to prevent the city from collecting from him the excess of the assessment over the true amount necessary for him to pay, as his proportion, as fixed by the commissioners, based upon the cost of the. sewer.

We think it does not sufficiently appear from the allegations of the bill that appellee had no remedy at law.

The time when the contract was let and the appellee and others thereby apprised what would he the actual cost of the sewer is not stated in the bill.

If the excessive and unnecessary levy was known to appellee at the time, or before the judgment of the County Court confirming the assessment of the commissioners, as provided in Secs. 30 and 31 of Art. 9, Chap. 24, R. S., he should then and there have made his defense.

If not known at that time, but the error is discovered at or before the time when the county collector applies to the County Court for judgment against the lots, at the time of applying for judgment against lands for taxes due the.State and county, appellee may, at that time, make his defense under the provisions of Sec. 39, Art. 9, Chap. 24, R. S., for the reason that the objection would be based upon facts discovered after the original judgment confirming the assessment, and hence could not have been interposed as a defense at the time the assessment was confirmed.

The last clause of Sec. 39 is: “And, upon application for judgment upon such assessment, no defense or objection shall be made or heard which might have been interposed in the proceeding for the making of such assessment or the application for the confirmation thereof.”

The meaning of this clause is that all proper objections and defenses arising subsequently to the confirmation of the assessment, and which could not, therefore, have been interposed in that proceeding, may be set up when the collector seeks a judgment; that the confirmation of the assessment by the County Court is final and conclusive only as to all defenses and objections existing at that time.

The city may undoubtedly proceed to assess and collect special assessments based upon the estimate made in conformity with Secs. 20 and 21, Art. 9, Chap. 24, although such estimate may exceed the actual cost of the proposed improvement; hence, so long as it is not known that such assessment is too large no one would be permitted by the County Court, either when confirming the assessment or in rendering the judgment upon which the lands are to be sold, to interpose as a defense the mere possibility that the assessment may ultimately prove larger than is needed.

But, from the moment that it clearly appears there is an excessive levy, either from letting the contract for the proposed work, or otherwise, we think such excess should not he collected, and becomes a legal defense, pro tanto, which the County Court should recognize, as, arising at the time, it can be shown in the manner above stated that the levy is excessive and unnecessary.

It does not appear from the bill whether final judgment had been.rendered at the time of filing the bill, or not, although from the time of its filing we should infer that such judgment had not been rendered, and if so, appellee had a complete remedy at law, and would have no standing in a court of equity.

.The decree of the Circuit Court was erroneous, and will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Sophie Cohen et al., Impl’d, etc., v. James N. Crandall et al.
    [Opinion filed July 27, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Pinckney & Tatge, for appellants.
    Mr. Levi Sprague, for appellees.
   Per Curiam.

Mechanic’s lien—Decree for material-men, affirmed on evidence.


text:
    Village of Hyde Park v. Olive J. Marsh, use, etc.
    [Opinion filed July 27, 1887.]
    Appeal from the Superior Court of Cook County.
    Mr. Henry V. Freeman, for appellant.
    Mr. Consider H. Willett, for appellee.
   Per Curiam.

The facts being identical, judgment reversed in conformity with the opinion in Village of Hyde Park v. Corwith, 12 N. E. Rep. 238.


text:
    Alfred H. Blackall et al., Successors, etc., Impl’d. etc., v. Charles H. Hayden.
    [Opinion filed July 27, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morton Culver and Geo. L. Thatcher, for appellants.
   Per Curiam.

Mechanic’s lien—Decree for material-men; affirmed on the evidence.


text:
    E. N. Hurlbut v. Leon Weil et al.
    [Opinion filed July 27, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. D. Blackman and Nolan & Taylor, for appellant.
    Messrs. Payne, Porter & Russell, for appellees.
   Per Curiam.

Action for damages on injunction bond— Attorney’s fees—Allowance of $150—Conflict of evidence— Affirmed.


text:
    William T. Burgess v. Alpheus C. Badger et al.
    [Opinion filed July 27, 1887.]
    In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. William T. Burgess, in person, plaintiff in error.

      Messrs. John Woodbridge and Lyman & Jackson, for defendants in error.
   Per Curiam.

Partnership to prosecute certain suits involving estate of bankrupt, and to advance costs and expenses —Proceeding in equity touching nature and extent of agreements, and for an accounting—Decree affirmed as supported by the evidence, there being no substantial error of law.


text:
    Edward G. Asay v. Marshall J. Allen et al.
    [Opinion filed July 27, 1887.]
    Appeal from the Circuit Court of Cook County.
    Messrs. Asay, Asay & Rice, for appellant.
    Mr. L. S. Hodges, for appellees.
   Per Curiam.

Account of trustee—Interest—Computation with annual rests, following Ogden v. Larrabee, 57 Ill. 389.


text:
    Solomon Vehon v. Benjamin Lindauer et al.
    [Opinion filed August 3, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Hofheimer & Rosenberg, for appellant.
    Messrs. Tenney, Bashpord & Tenney, for appellees.
   Per Curiam.

Attachment—Issue on answers of garnishees ■—Verdict against garnishees, held to be supported by the evidence.


author: Per Curiam,.

text:
    M. M. Allen v. William Hafner et al.
    [Opinion filed August 3, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. A. Van Buren, for appellant.
    Messrs. McElherne & Cummings, for appellees.
   Per Curiam,.

Affirmed, there being no error in law and the verdict of the jury being conclusive as to the question of fact.


text:
    Moses Foley et al. v. Adam Reiplinger, Administrator, etc.
    [Opinion filed August 3, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Gardner, McFadon & Gardner, for appellants.
    Messrs. McGaffey & Turnes, for appellee.
   Per Curiam.

Decree dissolving injunction and dismissing the complainants’ bill, affirmed.


text:
    Rand, McNally & Co. v. E. P. Donnell.
    [Opinion filed August 3, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Kiric Hawes,- Judge, presiding.

      Mr. James R. Mann, for appellant.
    Messrs. G. W. & J. T. Kretzinger, for appellee.
   Per Curiam.

Indebitatus assumpsit—Trial by court— Judgment for plaintiff—Evidence being conflicting, judgment affirmed.


author: Pillsbury, J.

text:
    The Belleville District Fair Association v. W. F. Noetling, for use, etc.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. B. H. Gamut. Judge, presiding.
    Messrs. Dale & Bradshaw and William Winkelmann, for appellant.
    Mr. Edward L. Thomas, for appellee.
   Pillsbury, J.

Garnishment—Judgment against garnishee, affirmed upon the evidence.


text:
    William D. Messinger v. Harlan P. Tracy.
    [Opinion filed November 23, 1887.]
    In error to the County Court of Cook County; the Hon. Bichard Pbehdeegast, Judge, presiding.
    Mr. J. A. Sleeper, for plaintiff in error.
    Messrs. Flower, Remy & Holstein, for defendant in error.
   Per Curiam.

Promissory notes—Whether accommodation paper—Conflict of evidence—Judgment affirmed.


text:
    Benjamin Bernstein v. Moses Bernstein, for use, etc.
    [Opinion filed December 7, 1887.]
    Appeal from the County Court of Cook County; the Hon Richard Prendergast, Judge, presiding.
    Mr. H. B. Stevens, for appellant.
    Mr. B. M. Shaffner, for appellee.
   Per Curiam.

Action against appellant as surety on appeal bond—Signature by mark—Denial of genuineness—Conflict of evidence—Affirmed.


text:
    Jennie C. Vallette v. John T. Perie et al.
    [Opinion filed December 14, 1887.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. F. J. Griffin, for plaintiff in error.
    Messrs. H. C. Bennett and W. A. Phelps, for defendants in error.
   Per Curiam.

Excessive judgment—Remittitur—Judgment as reduced, affirmed, appellees to pay costs in this court.


author: Mr. Presiding Justice Barnes

text:
    Gust Nostwick et al., Plaintiffs in Error, v. Henry P. Kranz et al., Defendants in Error.
    Gen. No. 29,471.
    1. - Foreclosure of mortgages — amendment of Mil to foreclose by joining additional defendant. A bill of foreclosure may be amended so as to join as an additional defendant one claiming an interest in the premises, although such defendant’s alleged right did not accrue until after the filing of the bill.
    2. Foreclosure of mortgages — right of one joined as defendant by amendment of bill to foreclose to prove claim as junior incumbrancer under allegations of his answer. One claiming an interest as junior incumbrancer of premises against which foreclosure proceedings are pending, upon being made a party to such proceedings by amendment of the bill and upon setting up his claim by answer is entitled to prove his claim as alleged and thereupon have satisfaction out of any surplus above the senior incumbrances.
    • 3. Foreclosure of mortgages — right of defendants defaulted for want of answer to rule to plead to amended bill joining additional defendant before hearing on issues raised by added defendant’s answer. The fact that, following entry of an order pro confesso for want of answer in foreclosure proceedings, the bill was amended so as to join an additional party defendant who made answer, thereby entitling the defaulting defendants to have their default set aside and to answer, did not preclude the court from proceeding with a hearing upon the issues raised by the answer of the additional defendant without ruling the other defendants to plead to the amended bill.
    4. Equity — right of defendants against whom, order pro confesso entered for want of answer to have default set aside and leave to plead after MU amended to join additional defendant. Where following entry of an order pro confesso for want of answer, the bill is amended so as to join an additional party defendant, the defaulted parties are entitled to have the default set aside and to plead or demur to the amended bill.

      5. Liens — when equitable lien not created by payment of earnest money. The fact that owners of realty permitted a stranger to the title to enter into a contract in his own name to sell such property to a third party does not give such intending purchaser a lien against the property for the earnest money paid upon the contract.
    Error by plaintiffs to the Superior Court of Cook county; the Hon. Denis E. Suluivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed in part, reversed in part, with directions for modification of the decree.
    Opinion filed March 16, 1926.
    Landfield & Levin, for plaintiffs in error; I. Archer Levin, of counsel.
    O’Shaughnessy & O’Shaughnessy, for defendants in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error questions the propriety of a decree in a foreclosure suit so far as it gives Robert M. Barsness, one of the defendants in error, liens on the premises in question and permits him to share in the distribution of the surplus. No question arises as to the rights of other defendants in error under the decree whose claims were given priority over the alleged liens of said Barsness.

The claim to said liens arises under a lease and under a contract of sale of the premises in question by plaintiff in error Julius Freed to said Barsness. The other plaintiffs in error, Gust Nostwick and Lina Nostwiek, were the owners of the equity of redemption, but, according to the evidence and findings of the decree, permitted said Freed to deal with the premises as owner thereof. The record does not show that he had any title or legal claim to the premises. He first entered into contract to sell the same to Barsness, on which Barsness paid $500 as earnest money. This contract was abandoned by mutual consent, and a lease was executed by Freed to' Barsness for the premises under which Barsness took possession. There was prima facie evidence to support the findings of the decree that after Barsness took possession under the lease said Freed, with the approval of said Host-wicks, authorized Barsness to make improvements and repairs on the premises under the promise of Freed that he would pay for the same, at a cost of $1,049.70. Plaintiffs in error having refused to pay the same he filed a mechanic’s lien therefor. The decree found that the mechanic’s lien was a valid lien on the premises and gave Barsness a lien for the $500 with interest, amounting to $508.46, subject to the liens of defendants in error, for which certificates of indebtedness were authorized to be issued.

After personal service of summons was had on plaintiffs in error they were defaulted, and an order pro confesso for want of an answer to the bill was entered against each of them. Afterwards the bill was amended by making Barsness an additional party defendant as one having some claim or interest in and to the premises. Barsness filed his answer setting up said mechanic’s lien and his claim of right to the return of said $500, with interest, basing said claims on said contract and lease and the agreement for said improvements, all with the acquiescence and approval of said Nostwicks.

It is first urged that it was improper to allow said amendment as the alleged rights of Bareness accrued after the filing of the bill, and that in such a case he should have been brought into the suit by a supplemental bill and not by amendment. The amendment merely made him an additional defendant. It alleged no new state of facts on which complainants sought relief. If Bareness had any right to participate in the surplus it was proper to make him a party defendant regardless of when his claim accrued.

It is next urged that he was not entitled to affirmative relief on his answer but should have filed a cross-bill. The theory of his answer was that he was a junior incumbrancer and having been made a party to the foreclosure suit was entitled to prove his claim as such and have satisfaction thereof out of any surplus above the superior incumbrances.- This he could do without a cross-bill. (Wallen v. Moore, 187 Ill. 190; Soles v. Sheppard, 99 Ill. 616; Blatchford v. Blanchard, 160 Ill. 115.) In the last cited case it was held that a claim to a mechanic’s lien could be asserted and relief had as prayed for in an answer to a bill of foreclosure without the necessity of filing a cross-bill.

It is next urged that the amendment to the bill operated to vacate the default and decree pro confesso previously entered against plaintiffs in error, and that it was error to proceed to a hearing on the issues raised by Bareness ’ answer without a rule on them to plead answer or demur to the amended bill. That such is the effect of an amendment on a previous default has been frequently held. (Gibson v. Rees, 50 Ill. 383; Lyndon v. Lyndon, 69 Ill. 43; South Chicago Brewing Co. v. Taylor, 205 Ill. 132; Ruppe v. Glos, 251 Ill. 80.) But in the last case cited, while the court recognized such to be the rule, it said:

“By the service of summons he was brought into court, where it was his duty to be and appear until the case was disposed of, and he was entitled to no further notice or service of notice under the practice in this State. (Niehoff v. People, 171 Ill. 243.) ”

Under the authority of the Ruppe and Niehoff cases plaintiffs in error are in no position to complain. They were bound to take notice of the amendment, and had they so wished could have had the default vacated and have met the issues raised by Barsness’ answer.

But while Barsness was a junior incumbrancer with respect to his mechanic’s lien and under the authorities above cited entitled to have the incumbrance satisfied out of the surplus without a cross-bill, his claim to have the $508.40 paid out of the surplus does not rest on the theory of an incumbrance but on that of an equitable lien. If it were such, no relief could have been had thereon without a cross-bill to establish it. (White v. White, 103 Ill. 438; Shaken v. Irving, 206 Ill. 597.) It was not in the nature of a junior incumbrance, which under the practice may be paid out of the surplus on a foreclosure sale without a cross-bill. The claim was allowed on the ground that the Nostwicks acquiesced in or approved of Freed’s contract to sell the land. The statute gives a lien on land for improvements which the owner has knowingly permitted another to contract for. But neither by statute nor the common law is a lien on land created by the mere fact that the owner stands by and permits another to enter into a written contract in his own name to sell it. Whatever obligation existed, if any, on the part of Freed or the Nostwicks to return the money paid on the contract it did not constitute a lien on the land or give any right to Barsness to be paid from the proceeds of the sale on foreclosure.

Accordingly the decree will be affirmed except so far as it authorizes the payment of $508.40 out of the surplus, and will be reversed and the cause remanded for modification of the decree consistent with this opinion, at the cost of Barsness.

Affirmed in part and reversed in part with directions for modification of the decree.

Gridley and Fitch, JJ., concur.


text:
    Wood & Company, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 30,441.
    1. 'Cabbtoks — necessity for production of bill of lading or explanation of loss and proof of contents, in action for negligent performance of shipping contract. Where it appears, in an action against a carrier for negligent performance of its contract to transport goods, that the carrier has issued a hill of lading governing the shipment, it is incumbent upon the plaintiff either to introduce the bill of lading ás the best evidence of the contract, or to account for its loss or inability to produce it and prove its contents by oral evidence.
    2. Cabkiers — presumptive applicability of Carmack Amendment to action for negligent performance of interstate shipping contract where precise place of injury not alleged. Where an action for damages resulting from negligence in the transportation of an interstate shipment is brought against the defendant railroad as initial carrier, and no proof is made that the alleged injury occurred at any particular point in the route of transportation, the action will be deemed one based upon the defendant’s duty as to through transportation under the Carmack Amendment to the Interstate Commerce Act, and hence upon the contract expressed by the bill of lading issued covering such shipment.
    3. Carriers — prerequisites to recovery against interstate carrier based upon Us cqmmondaw liability. No recovery may be had against an interstate carrier upon an allegation of a breach of its common-law duty to transport and safely deliver a shipment in the absence of proof that the alleged loss or damage occurred on its line or through its neglect.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 16, 1926.
    Blum, Blum & DeLaney, for appellant; J. V. De Laney, of counsel.
    Vernon W. Foster, for appellee; John G. Drennan, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This case was tried before the court without a jury on a single count of the declaration, and the plea of general issue. At the conclusion of plaintiff’s evidence, the court, on defendant’s motion, made a finding and entered judgment in favor of defendant, from which this appeal is taken.

The real question presented is whether plaintiff’s evidence, with the legitimate conclusions therefrom, fairly tends to sustain the cause of action as laid down in the declaration.

Said count charges defendant as “initial carrier” with having received and accepted a car of bananas for safe transportation from New Orleans, Louisiana, to Banger, Texas, and with having defaulted in its special promise to safely and securely transport and deliver the same; from which plaintiff suffered loss and damage.

Plaintiff’s evidence consisted of depositions, which are to the effect that the bananas were loaded in defendant’s car, designated as “I. C. 59,146,” at New Orleans, and delivered in that car to plaintiff as the purchaser of the fruit, at Banger, Texas; that defendant issued a bill of lading therefor, which was produced by plaintiff’s counsel and a copy of which was attached to one of the depositions; that the bananas were in a green and proper condition when loaded, that they were packed in the usual way described, that five days later they reached their destination in a mashed, ripe and unsaleable condition, which the evidence tended to show was attributable to “rough handling,” caused by negligent management or bumping of the ears or otherwise in the course of transporta^ tion so that the load shifted towards, one end of the car. The depositions also contained proof of the quantity and quality of the fruit both at the point of shipment and at the point of arrival, and the amount of damages sustained.

On reading the deposition, to which a copy of the bill of lading was attached, plaintiff’s attorney offered the front page of the bill, saying that he did not offer the back thereof because it was contrary to the federal statutes. Defendant’s counsel objected to the offer of only a portion of the bill of lading on the ground that it was an entire contract and that both the 'face and back thereof should be introduced. The court sustained the objection. Thereupon plaintiff’s attorney stated that he would not offer any bill of lading or the exhibit so attached to the deposition.

Appellant contends that it made out a prima facie case of liability under the common-law duty of a carrier to safely transport and deliver, and that the action was predicated thereon and not on the bill of lading or written contract, and therefore it was unnecessary to introduce the bill of lading.

It has been held by this court in like actions that where it appeared a biff of lading was issued or the contract was in writing it was incumbent upon the plaintiff to introduce it as the best evidence of the contract, or account for its loss or inability to produce it and prove its contents by oral evidence. (Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609; Burtless v. Oregon Short Line B. Co., 180 Ill. App. 249; Idaho Sheep Co. v. Oregon Short Line R. Co., 188 Ill. App. 591; Finkelstein v. Illinois Cent. R. Co., 198 Ill. App. 75.) The facts in those cases are not distinguishable from those in the instant case so far as that principle is involved.

In support of its contention appellant’s counsel cite the proviso in the Carmack Amendment to the Interstate Commerce Act, reading, “that nothing in this act shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law”; also, the court’s language in Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400, that “the liability imposed by the act is not dependent upon the issue of such receipt or bill of lading. The liability is created by the railroad company receiving and agreeing to the shipment of property. The receipt or bill of lading is evidence of the contract but its issuance is not necessary to create the liability”; and also Shellabarger Elevator Co. v. Illinois Cent. R. Co., 278 Ill. 333, 346, where the court referred to the fact that the action was not on the bill of lading “but on the failure of appellant to perform its duty to safely carry and deliver the grain.”

In the Gamble-Robinson case plaintiff claimed loss or damage sustained where fruit arrived in damaged condition at ultimate points of destination over lines not belonging to defendant in the case, there having been a diversion of the shipment under an oral agreement from the end of defendant’s line to which the bill of lading issued read. But as defendant was liable under the Carmack Amendment for the interstate shipment for damage or injury to the property, whether caused by it or by any connecting carrier to which the goods were delivered for transportation, the court held that if the defendant had not undertaken and agreed to continue the shipment beyond the point of diversion to the final destination its liability would have ceased when the property arrived.at the end of its line, but that it having agreed orally to the diversion beyond that point and caused the shipment to be made over the lines of other common carriers it was liable under the express provisions of the Carmack Amendment the same as if the bill of lading had read to the point of ultimate destination. In that connection it used the language above stated, holding that while the receipt or bill of lading is evidence of the contract the reshipping of the cars from the point of diversion under an oral agreement “was a modification of the original contract of carriage as evidenced by the original bills of lading.” The bill of lading, therefore, did not evidence the entire contract.

In the Shellabarger Elevator Co. case the action was for the loss of grain in transit. The shipper sold the grain according to weights at the places of delivery and delivered the bills of lading1 to the purchasers and they were surrendered to the railroad company and canceled. The point was made that the carrier’s liability was to the holder of the bill of lading under the Carmack Amendment, and that plaintiff was not the holder thereof. The purchasers of the grain received and paid for all they bought and had no cause of action against the carrier. The cause of action there was for shortage of weights, and in holding that the right to sue therefor was in the shipper under such circumstances, the court used the language above quoted, and said that the action “was not under the Carmack Amendment, which refers only to the bills of lading. ” The bills of lading, however, in both cases were introduced in evidence, and there was no contention in either case that the liability could be shown without proof of the actual contract.

It is recognized that this was an interstate shipinent and, therefore, governed by the Interstate Commerce Act. While there was no proof of the route or routes of transportation, it is manifest by bringing the action against defendant as “initial carrier” the transportation must have continued from defendant’s line over a connecting line or lines, and that plaintiff based its action on the Carmack Amendment which modified the law as theretofore existing, by requiring the first or receiving carrier in an interstate shipment of goods to issue a receipt or bill of lading therefor and by making it “liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier * * * to which such property may be delivered.” It was held in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, that this amendment imposes upon the first carrier which receives property in one State for transportation in another State “the obligation of through transportation, with carrier liability throughout.” Because no proof was made that the loss or injury occurred at any particular point on the route or routes of transportation it must be inferred that plaintiff based its suit on said amendment, that is on its obligation for through transportation, and therefore upon the contract expressed in the bill of lading. Conceding for sake of argument that an interstate carrier may be held liable for damage or loss that occurs on its own line on the theory of its common-law liability to transport and deliver safely thereon, yet it failed to sustain such a cause of action in the absence of making any proof that the loss or damage occurred on its line or through its neglect. Upon either theory of liability, therefore, plaintiff failed to make out a cause of action against defendant. Accordingly the judgment is affirmed.

Affirmed.

Gridley and Fitch, JJ., concur.


author: Mr. Justice Fitch

text:
    Madison & Kedzie State Bank, Appellant, v. Garfield Park Storage Company, Appellee.
    Gen. No. 30,423.
    1. Intebnat, bevenue and customs — lien created by imposition of specifio tax upon distilled spirits. The Act of Congress of October 3, 1917, levying, a specific tax of $2.10 per gallon upon distilled spirits held by any person or corporation on that day created a lien upon the specific property so taxed, without regard to its individual ownership.
    2. Intebnai, bevenue and customs — rights of pledger and pledgee of stored spirits as alike subject to paramount lien of government for specifio tax imposed thereon by Act of Congress. Where at the time of the enactment of the Act of Congress of October 3, 1917, levying a specific tax of $2.10 per gallon upon distilled spirits, a quantity of such liquor was in storage and the warehouse receipts covering the same were in pledge to secure a loan to the original holder, and no third party rights were involved, both the original holder and the pledgee of the receipts held subject to the paramount lien of the government for such tax.
    3. Wabehouses and stobage — duty of warehouseman upon seizure of spirits held under negotiable receipts by virtue of distress warrant issued on account of nonpayment of- federal tax thereon. A warehouseman with whom distilled spirits were stored on the effective date of Act of Congress of October 3, 1917, imposing a specific tax of $2.10 per gallon thereon, was under no obligation to pay the tax so imposed to avoid seizure of the spirits under a distress warrant issued on account of the nonpayment of the tax by the owners thereof, nor to bring suit to recover back the tax, nor to institute replevin against the purchasers of the spirits at the sale thereof under the distress warrant, but performed his full duty as bailee by informing the officer seizing the spirits that the same were held under negotiable warehouse receipts outstanding in the hands of a pledgee thereof, and by notifying such pledgee of the seizure of the spirits and the date when the same would be sold under the distress warrant.
    4. Wabehouses and stobage — seizure of stored spirits for nonpayment of federal tax as excusing obligation to redeliver on demand of holder of warehouse receipts. A warehouseman from whom distilled spirits held under negotiable warehouse receipts outstanding in the hands of a pledgee thereof were taken under a distress warrant on account of the nonpayment by the owners of the tax imposed by Act of Congress of October 3, 1917, was excused by reason of such seizure from redelivering the spirits to the holder of the warehouse receipts.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Philip L. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 16, 1926.
    Moses, Kennedy, Stein & Bachrach, for appellant; Walter Bachrach and Isaac E. Ferguson, of counsel.
    Winston, Strawn & Shaw, for appellee; John C. Slade, James H. Cartwright, George T. Evans and Paul H. Moore, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a finding and judgment for defendant in an action brought against it by the legal holder of two of its negotiable warehouse receipts, to recover the value of sixteen barrels of whisky therein described, which were seized and sold by the United States internal revenue collector, under a distress warrant issued on account of the nonpayment of taxes assessed against the same in the name of the original holder of the warehouse receipts.

The case was tried upon a written stipulation of facts. The property in question was stored in defendant’s warehouse in August, 1917, by one Bichard Lange, who received from defendant at that time two negotiable warehouse receipts for the same. At or about the same time, Lange indorsed and delivered the receipts to the plaintiff as security for advances made to him by the plaintiff amounting to $1,801.50, and that fact was known to defendant. On May 17, 1918, the property was levied upon, distrained and taken from defendant’s possession by a deputy collector of internal revenue, who, according to the stipulation, was “acting pursuant to a valid warrant regularly issued in accordance with the statutes of the United States * * * for the seizure of the property of said Richard Lange for failure on the part of said Richard Lange to pay internal revenue due from him to the United States in the sum of $3,165.87.” The stipulation also states that “said distraint warrant was issued and levied for taxes regularly levied and assessed against said Richard Lange under the Act of Congress of October 3,1917, on said sixteen barrels of whisky and on other liquor belonging to Richard Lange in which plaintiff had no interest”; that the tax on said sixteen barrels of whisky, “namely, on 582.31 gallons, amounted to $1,222.87”; that at the time of such seizure, defendant notified the collector that the warehouse receipts for the whisky were “in the hands of plaintiff, as pledgee for value as aforesaid”; that four days later, defendant notified the plaintiff of the levy of the distress warrant by the collector, and on June 13, 1918, also notified plaintiff’s attorneys that the whisky would be sold by the government for nonpayment of taxes of Richard Lange, at public auction, on June 17, 1918; that “no legal proceedings to prevent such sale” were instituted by plaintiff; that on June 17, 1918, “after due notice and in accordance with the statutes of the United States,” the property was sold by the collector; that the market value of the property at the time of such seizure, if sold free and clear of all taxes, was $4,000; and that no legal proceedings against the government on account of such seizure and sale were commenced by either plaintiff or defendant.

In plaintiff’s brief it is said that the sole question presented is “whether defendant could justify its failure to redeliver the sixteen barrels of whisky to plaintiff under the negotiable warehouse receipts held by plaintiff, by reason of the seizure of the whisky by the collector of internal revenue under the distraint warrant against Bichard Lange for the non-payment of taxes.”

Upon this question, plaintiff contends that by the indorsement and delivery of the negotiable warehouse receipts to plaintiff in August, 1917, it became, in legal effect, under the provisions of the Warehouse Beceipts Act, a bona fide purchaser for value of the property represented by the receipts; that such indorsement and delivery to the plaintiff of the warehouse receipts “was tantamount to a physical transfer of possession of the property, with clear and complete legal title against all the world,” and that “it is utterly inconsistent with negotiability that the transferor of the warehouse receipts should still retain an interest in the property subject to a levy for his taxes or other indebtedness.”

The contention as thus stated assumes that a tax is in the same category as “other indebtedness,” and also assumes that an internal revenue tax on whisky is to be considered and treated as a personal tax against the holder of the legal title to the whisky. The first assumption is wholly unwarranted, and the second is very doubtful.

If the property had been taken from defendant’s possession under any ordinary process for the collection of a debt due from Lange, it is clear that such a levy would have been illegal because of the provision forbidding such a levy, contained in section 25 of the Warehouse Receipts Act. [Cahill’s St. ch. 114, ¶ 260.] In such case it would have been defendant’s duty to prosecute an appeal fronl any decision to the contrary, as was held in Manufacturers’ Mercantile Co. v. Monarch Refrigerating Co., 266 Ill. 584, cited and relied on by plaintiff. But a tax is not a debt in the ordinary sense of that word, nor is the government a creditor in the usual sense of that term. Taxes are enforced contributions for the support of the government and the government’s “claim for the payment of taxes upon the citizen is therefore, of necessity, paramount to all other claims against his property.” (Jack v. Weiennett, 115 Ill. 105, 110; Wabash Eastern Ry. Co. v. East Lake Fork Spec. Drain. Dist. Com’rs, 134 Ill. 384, 399.) In the case last cited, the court said that “every property owner holds his property subject to the exercise of the taxing power.”

Nor is a distress warrant issued under the provisions of the internal revenue laws of the United States ordinary process of the same character as that mentioned in section 25 of the Warehouse Receipts Act. It is an extraordinary process permitting seizure and sale of the property, after notice and demand for the payment of the taxes, without any judicial proceedings whatever, and, as will be shown hereafter, is a process the execution of which can only be prevented by paying the tax demanded.

By the Act of Congress, of October 3,1917, referred to in the stipulation and distress warrant, a specific tax of $2.10 a gallon was ordered to be “levied, assessed, collected and paid,” upon all distilled spirits held by any person or corporation on the day the act was passed, if intended for sale for beverage purposes or for use in the manufacture or production of any article used or intended for use as a beverage. The stipulation shows that this was the amount per gallon assessed against the property in question. It was therefore a specific tax against the property, rather than a personal tax against any individual or corporation. The general provisions of the Internal Revenue Act provide how such tax shall be levied, assessed and collected, and section 3186 provides that the amount of such taxes shall be a lien in favor of the United States from the time when the assessment list was received by the collector. Just when it was received by the collector in this case does not appear from the stipulation, but it must be assumed that it was some time after October 3, 1917, and before May 15, 1918, when the distress warrant was issued. The lien thus given is a lien on the specific property and is more in the nature of the lien of the State for taxes on real estate than the general lien usually given by statute against all the personal property of an individual or a corporation for personal property taxes. Such specific liens attach to the res without regard to individual ownership. (Osterberg v. Union Trust Co., 93 U. S. 424, quoted with approval in Wabash Eastern Ry. Co. v. East Lake Fork Spec. Drain. Dist. Com’rs, supra.)

The real question here involved, therefore, is not whether, after Lange had transferred the warehouse receipts to the plaintiff, he retained any interest in the property that could be levied upon by his creditors, but whether, as between him and the plaintiff, Lange was chargeable with the payment of the specific tax levied by the government on the property. According to the stipulation, the plaintiff held the warehouse receipts as security for payment of Lange’s notes for less than half the value of the property. As between plaintiff and Lange, the plaintiff’s loan on the property was the extent of plaintiff’s interest therein. As between them, it was Lange’s property, subject to plaintiff’s right to hold the legal title to it until its loan was paid. As no rights of third parties are involved, we think the interests of both Lange and plaintiff were held subject to the claim and lien of the government for taxes, which might lawfully be assessed against either.

But if it be conceded that in May, 1918, Lange had no such interest in the property as would authorize the assessment of the specific tax of $2.10 a gallon against him, and that therefore the seizure and sale of the property under a distress warrant against him was illegal, then the only question to be determined is whether it was defendant’s duty or that of the plaintiff to take whatever steps might legally be taken to prevent the sale or to recover possession of the property sold.

Section 3224 of the United States Revised Statutes provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in' any court.” In Graham v. Dupont, 262 U. S. 234, after referring to several earlier cases mentioned in the opinion, it was said (p. 255): that “the system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures not judicial, to collect them, with appeals to specified tribunals and suits to recover back moneys illegally exacted, was a system of corrective justice intended to be complete, and enacted under the right belonging to the government to prescribe the conditions on which it would subject itself to the judgment of the courts in the collection of its revenues. In the exercise of that right, it declares, by § 3224, that its officers shall not be enjoined from collecting a tax claimed to have been unjustly assessed, when those officers, in the course of general jurisdiction of the subject matter in question, have made the assessment and claim that it is valid.”

In Sheridan v. Allen (C. C. A., 8th Cir.), 153 Fed. 568, it was held that a sale of property by an internal revenue officer under a distress warrant for the collection of a tax does not, however, cut off the title of a third person who does not owe the tax “and against whose property the warrant is not directed, ’ ’ and that the true owner may assert his title to- the property by replevin against the purchaser at the sale after possession has been delivered to him by the collector.

Under these decisions, when defendant was confronted with the distress warrant, there was nothing it could do to prevent the sale except to pay, under protest, the tax demanded by the collector, appeal to the Commissioner of Internal Revenue, and sue to recover it back as provided by the revenue laws. But defendant was under no legal obligation to pay the tax. It was a mere bailee for the plaintiff. It did all that was required of it when it informed the officer that the goods were held under negotiable warehouse receipts which were outstanding in the hands of the plaintiff, and notified the plaintiff of the seizure and the date when the property would be sold under the distress warrant. Plaintiff might then either have paid the tax to prevent the sale and sued to recover it back, as provided by the revenue laws, or it could ignore the sale and assert its title to the property in an action of replevin against the purchaser at the sale. Either of these courses would doubtless have been effective to protect the plaintiff’s interest in the property, and both required action on plaintiff’s part and not on the part of the defendant.

Plaintiff’s counsel suggest that defendant might have brought the same kind of an action against the purchaser at the sale, upon the theory that defendant as warehouseman was entitled to the possession as against anyone other; than the plaintiff. Assuming, but not deciding, that such an action might have been maintained by defendant, we think defendant was under no obligation to do' so. As we understand the provisions of the Act of October 3, 1917, plaintiff, as the holder of the legal title to the property, was primarily liable for the amount of the tax thereon and it was therefore its duty to pay the tax, even though the tax was assessed- in the name of Lange. Certainly, that was its duty if, as its counsel claim, Lange had no interest whatever in the property, as such, after the transfer of the warehouse receipts to the plaintiff.

The property was taken from defendant’s possession under the exercise of a right paramount to that even of the legal holder of the title, and which defendant was powerless to resist. "Where such is the fact, we think the warehouseman is excused from a failure on his part to redeliver the goods to the holder of the warehouse receipts. Such, in effect, is one of the principles decided in the recent case of Rudin v. King-Richardson Co., 311 Ill. 513.

For the reasons stated the judgment is affirmed.

Affirmed.

Barnes, P. J., and Gridley, J., concur.