text:
    Charles W. Carroll v. Thomas B. Holmes.

      Negotiable Instruments—Action on Note—Gambling Contracts—See. 131 Criminal Code—Mutual Intention—Evidence—Parties—Payment by Note.

    1. In an action upon a promissory'note, it is held: That the defense that almost, if not quite, the entire consideration for which it was given, was losses incurred by the maker in dealings between the parties in options, is fully sustained by the evidence; that the evidence also shows the illegal intent to have been mutual; that it was unnecessary to show that the parties with whom the plaintiff dealt on the defendant’s account, knew of the latter’s intention not to take the grain and pork bought and sold; that the plaintiff’could not recover upon any items of the original indebtedness without surrendering the note for cancellation either before suit or at the trial; that he can not maintain an action on the note and on some of such items at the same time; that the plaintiff was not entitled to open and close the argument on the evidence, the burden of proof being on the defendant; and that there was no substantial error in giving and refusing instructions.
    2. A secret illegal intent in one party not known to the other will not invalidate a contract.
    3. The acceptance of a promissory note is prima facie the satisfaction and payment of an open or book account, or antecedent debt, for which it is given.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Marshall County; the Hon. T. M. Shaw, Judge, presiding.
    Mr. Fred S. Potter, for appellant.
    There is a total absence of proof as to who the Chicago parties were with whom the contracts were made, and as to their intention; without affirmative proof from the defendant as to who were such parties and their intention, the verdict in this case can not be maintained.
    Having given his orders for corn, corn to be delivered to him, the plaintiff is bound by his orders. Miller v. Bensley, 20 Ill. App. 528; Wolcott v. Heath, 78 Ill. 433; Prixley v. Boynton, 79 Ill. 351; Cole v. Milmine, 88 Ill. 349.
    If all of the other matters between the parties be expunged as founded on losses in unlawful ventures, yet it will not bar a recovery for money loaned Jong before the alleged unlawful dealings had in their inception; nor for money which the de-l fendant actually paid to him and charged in account with the ¡ defendant’s knowledge and consent. If it be found that the board of trade contracts were unlawful, then the defendant must repudiate all or none; he can not appropriate to himself the proceeds of such as were to his advantage and disavow all others. Wolcott v. Heath, 78 Ill. 433.
    Messrs. Burns & Ong, for appellee.
    The intention of the law is to prohibit persons from dealing thus knowingly, as agents or otherwise; no room is left for avoiding the law by pretended agencies or by other means which the ingenuity of men may invent to escape liability and

      enforce the most pernicious contracts; neither can an assignee of an obligation tainted with such contracts, in whole or in part, enforce such contract. Tenney v. Foote, 4 Ill. App. 594, and numerous other cases cited; also Webster v. Sturges, 7 Ill. App. 560; Beveridge v. Hewitt, 8 Ill. App. 467, and numerous other cases cited.
    All dealings in puts and calls are illegal and void, and can not be enforced if the taint remains as to any part of the promissory note given upon adjustment of such contracts; any fraudulent gambling contract entering into such note renders the whole instrument void, and the court will not inquire as to whether part of the transactions are legal and part illegal. 1 Parsons on Contracts, 380; Henderson v. Palmer, 71 Ill. 579; Nash v. Monheimer, 20 Ill. 215; Munsell v. Temple, 3 Gilm. 93; Wheeler v. Russell, 17 Mass. 257; Chitty on Contracts, 730; Tenney v. Foote, 95 Ill. 99; Metcalf on Contracts, 216.
    The cunning devices of artful men to cover up frauds by rules and regulations of the board of trade and others dealing in puts and calls, are not allowed to avoid responsibility arising from such contracts, no matter what form may be adopted as to rules and regulations, or as to the form of contracts; the court will always inquire into the intention of the parties, look into all the surrounding circumstances and facts, and determine what the spirit of the contract really is. The acts, the conduct of the ■ parties, have a controlling influence in determining what the intention is. Tenney v. Foote, 4 Ill. App. 594; Webster v. Sturges, 7 Ill. App. 560; Beveridge v. Hewitt, 8 Ill. App. 467; Pickering v. Cease, 79 Ill. 328; Lion v. Culbertson, 83 Ill. 33; Kreigh v. Sherman, 105 Ill. 49; Brand v. Henderson, 107 Ill. 141.
   Baker, J.

Carroll brought assumpsit against Holmes upon a promissory note for $1,434.60, dated March 12, 1885, and due four months after date. The declaration contained two special counts on the note, and the common counts.

The pleas of appellee were that the note was made without any good or valuable consideration and several special pleas; and the pleas all averred that the note was the only cause of action. Issues were formed upon the pleas, and the results of a jury trial were a verdict and judgment for the defendant.

The principal contention between the parties seems to be, whether or not the consideration of the note is impeached by the evidence on the ground it was for losses on contracts negotiated by appellant for appellee for the purchase and sale of grain and other produce, the understanding and intention of the parties at the time being that no grain or produce should in fact be received or delivered, but that appellee should have the option to close the contracts when he saw fit, and make settlements upon the basis of the difference between the contract prices and the ruling market prices in Chicago.

See. 130 of the Criminal Code provides that whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain or other commodity, shall he fined not less than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or both; and that all contracts made in violation of said section shall be considered gambling contracts, and shall be void. Sec. 131 of the Code provides that all promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof shall he for any money, property or other valuable thing won by any gaming, or bet upon any unknown or contingent event whatever, or for reimbursing or paying any money or property knowingly lent or advanced at the time and place of such bet, to any person or persons so betting, shall be void and of no effect.

In the case of Pearce v. Foote, 113 Ill. 228, the Supreme Court say: “ The true idea of an option is what are called, in the peculiar language of the dealers, ‘ puts’ and ‘ calls.’ A ‘ put ’ is defined to be the privilege of delivering or not delivering the thing sold, and a ‘ call ’ is defined to be the privilege of calling for or not calling for the thing bought. Optional contracts, in this sense, are usually settled by adjusting market values, as the party having the option may elect. It is simply a mode adopted for speculation in differences in market values of grain or other commodities. It must have been in this sense the term ‘ option ’ is used in the statute. Such a contract is obviously fictitious, having none of the elements of good faith, as in a contract where both parties are bound, and is defined by statute as a gambling contract.”

According to the evidence in this case Holmes delivered his orders for the purchase or sale, for future delivery, of grain or pork to Carroll, at Henry, and the latter transmitted them to Dow, a Chicago commission merchant, and guaranteed their performance by Holmes; and Dow found either a seller or purchaser as required, and charged a commission for so doing, which he afterward divided with Carroll. The contracts made were legitimate and valid upon their faces, and apparently contemplated nothing which was in contravention of the statute or opposed to the policy of the law. There was nothing, then, in the dealings between the appellant and appellee, or in the contracts, which was invalid, unless there was a mutuality of illegal intent, for it is a settled rule of law that a secret illegal intent in one party not known to the other will not invalidate.

There is no doubt of the illegal intent of appellee in these transactions, for he testified upon the trial that he did not intend to deliver any of the grain that he sold, or receive any that he bought, and there is nothing in the evidence tending to contradict him. It would seem, however, that he never in words communicated this intention to appellant, for he further stated that he never told Carroll that his intention was not to take the stuff he bought, nor that he did not intend to deliver the stuff he sold, and that in no case was there any expression of any inten tion to deliver or not deliver any of the commodities. Appellant testified that all of the transactions were actual and not fictitious; that they were not options but wore for pork and grain to be delivered; that there was no understanding that the deals were to be anything but real and actual, and that Holmes would have received all of the pork and grain on his contracts if he had not closed them out before maturity. Notwithstanding these statements of the parties, the jury found that it was the intention of both of them, at the times the orders to sell or to buy were given, that no grain or-pork should be either delivered or received, but that the contract should be closed out before maturity and settlements made on differences between contract and market prices.

This was necessarily the finding of the jury under the verdict they returned, for they were explicitly told by the court, in numerous instructions, that the legal intent of Holmes alone would not vitiate the contracts, but that the burden of proof was upon him to establish by preponderance of the evidence that Carroll knew at the times that the sales or purchases were made upon orders that the articles were not to be delivered or received; that the contracts for future delivery were not rendered unlawful or void by the fact that the parties may thereafter and before the maturity of the contracts have rescinded the same by agreement upon the understanding of the payment of differences in price; and that they had no right to find that the deals were not real unless the greater weight of the evidence proved they were^not real.

The jury having found as matter of fact that appellant had knowledge the contracts in question were gambling contracts, the question arises whether or not the evidence sufficiently sustains such finding. Ho matter what the forms of the several transactions were upon their face, yet if the facts and circumstances in proof show that such forms were colorable only, and that it was the real understanding of both parties that there were to be no actual sales, no delivery or acceptance of the subject-matters of the contracts, but that damages were to be adjusted upon differences, then they were gambling transactions and within the purview of the statute, and this, whether the real intentions of the parties- were formally expressed in words or not. It is altogether legitimate to look at the surrounding circumstances in order to ascertain and determine the mutual understanding and real intention of the contracting parties. From the facts and circumstances found in this record, from the course of dealing for a long series of months between appellant and appellee, and the character of the numerous transactions between them, we think the jury was fully justified in concluding that appellant knew the commodities contracted for were not to be delivered or received, and that the sales were colorable only and not real and bona fide.

A sagacious and well-informed man engaged in the business of grain speculations upon the board of trade would not be likely to act so blunderingly as to render himself liable to the fines, penalties, forfeitures and imprisonment imposed by the statute by openly expressing his intention to enter into a gambling contract. Hor is it probable that he would permit the person with whom he was dealing to express in his hearing such an intention; in fact, it would be expected of him that he would absolutely and at once refuse to deal with or receive orders from any one who was so indiscreet as to thus express himself. We know from the books and from numerous cases that have arisen in the courts, that many cunning devices are resorted to by artful men engaged in unlawful speculations in grain and other commodities, in order to cover up and conceal the real character of the transactions in which they are engaged, their purpose being to make illegal gains and at the same time avoid legal responsibility and the penalties denounced by the statute.

There are many salient facts found in this record tending to prove the guilty knowledge of appellant. In the seventy or more separate dealings had between the parties, extending through a period of about eighteen months, in no single instance^did Holmes permit a contract to mature on his hands; but he uniformly ordered the contracts closed before the time for delivery or acceptance arrived. At no time was a contract consummated by the actual delivery to or receipt from Holmes of the article contracted. Besides this, Holmes was living on a farm and was a man of small pecuniary means, and yet, with actual notice Holmes was in embarrassed circumstances, appellant not only quite frequently, while holding but a small sum as security or “ margins,” but often when holding no security whatever, guaranteed the performance of the contracts made by him on behalf of Holmes. These dea's aggregated some §900,000, and ranged from 5,000 to 50,0JO bushels of grain and from 250 to 3,000 barrels of pork. It is unreasonable to suppose that appellant would, under such circumstances, make himself personally responsible as guarantor for the fulfillment of so many and such large contracts, involving such considerable sums of money, if he had supposed the contracts were real and bona fide, and would be required to be performed.

Upon the theory the contracts were optional and fictitious, and could be settled upon the payment of differences, and by himself as broker, in default of sufficient margins, the risks assumed were comparatively insignificant. Other facts and circumstances were in evidence tending to prove the real character of the transactions, and that appellant was fully advised that the dealings with appellee were colorable only, but we do not deem it necessary to comment upon them.

It is, however, urged by appellant that it is not enough for the purposes of the defense in this case that it was defendant’s intention not to take or deliver the grain and pork bought and sold, and that such intention was communicated or known to appellant, and also to Dow, the Chicago broker, but that the evidence must go further and show with whom Dow made the contracts, and that they also knew defendant’s intention, and consented to and did deal in “puts” or “calls.”

The evidence shows that .the dealings of Holmes were with Carroll and with him alone, and that they each relied solely upon the credit of the other; that the dealings between Carroll and Dow were between themselves alone andtliakthey each relied solely upon the credit of the other; and that the contracts made by Dow in Chicago were solely between him and the parties with whom he contracted, and that he and such parties respectively, reliód only upon the credit of each other; and that neither Ho1 mes nor Carroll had any notice or knowledge with whom Dow made the contracts. The question here at issne is with reference to the agreements, dealing and understanding between appellant and appellee, and not in regard to the knowledge and understanding of these other and remote parties. If the understanding between appellant and appellee was that the deals as between themselves should be settled upon differences, and that there should be no delivery of the commodities which were the subject-matter of the deals, then the contracts as between said parties were gambling contracts and within the statute.

The doctrine of agency has no application to the matter so far as the question of a violation of this penal statute is concerned; it was so expressly decided in Pearce v. Foote, 113 Ill. 228.

The case just cited is an authority in point to show that notice of illegality to Dow, and those with whom he dealt in Chicago, was not necessary to the defense in this litigation. Were the character of proof insisted upon by appellant, required, it would be difficult, if not impossible, to enforce the provisions of the statute.

It is a further contention of appellant, that as he had interposed a replication to the pleas which traversed the fact alleged therein, that the several causes of action in the declaration were one and the same, and also averred that he relied upon each and every cause of action in his declaration mentioned, he was, therefore, in any event, and even if the grain and pork contracts were unlawful and void, still entitled to verdict and judgment for §159.60. He testified on the stand that he had paid to the defendant in actual cash §159.60 more than he had received from him, even after deducting the proceeds of the oats that appellee delivered to him in his warehouse. Waiving the fact that ajapellee claims these cash items were all paid, we do not see any force in the point thus made.

It is admitted by appellant that the note for §1,434.60 was executed in full settlement of the account he held against defendant, and that the cash items from which this §159.60 is deduced, were all included in said account. The acceptance of a promissory note ié prima facie the satisfaction and payment of an open or book account, or antecedent debt, for which it is given. McConnell v. Stettinius, 2 Gilm. 707; Ralston v. Wood, 15 Ill. 159; Smalley v. Edry, 19 Ill., 207; Morrison v. Smith, 81 Ill. 221; Kappes v. The Geo. E. White Co., 1 Ill. App. 280; Fridley v. Bowen, 5 Ill. App. 190.

Appellant having taken a note jm payment of the account, could not recover upon any items of the original indebtedness without surrendering the note for cancellation, either before suit brought or, at the latest, upon the trial and before the cause was submitted to the jury. Stevens v. Bradley, 22 Ill. 224; Heartt v. Rhodes, 66 Ill. 351.

It is suggested that the giving of a void note is not the payment of a lawful claim, and further, that the giving of a voidable note, when avoided, does not work a payment or bar against the recovery of a lawful demand which entered into and formed a part of the consideration of the voided note. This doctrine seems to be just and reasonable. It does not, however, have application to the present controversy. Appellant contended upon the trial, and is still contending in this court, that the note was and is valid and legal. Had he admitted the note was void and of no effect, he might consistently have taken the position stated and have sued for the recovery of the $159.60. But he can not be permitted to blow both hot and cold with the same breath, and recover both upon the note and upon the original cause of indebtedness.

It is a sound rule of law, that a party can not occupy inconsistent positions and pursue inconsistent courses of action. Herrington v. Hubbard, 1 Scam. 569; Derickson v. Krause, 4 Ill. App. 507.

The statute provides, in express terms, that where the whole or any part of the consideration of a note is for money lost by any gaming, or by wager or bet upon any unknown or contingent event, then such note shall be void and of no effect. It is fully shown by the evidence and admitted by appellant that almost, if not quite, the entire consideration for which the note was given was losses incurred by appellee in his dealings in grain and pork contracts through the orders given by him to appellant. And, as we have already held, the evidence supports the finding of the jury, that these dealings between appellant and appellee were gambling contracts.

That which we have said above with reference to the matter of the $159.60, sufficiently disposes of the assignment of error that the trial court erred in denying to the plaintiff the opening and close of the argument to the jury on the evidence. The burden of proof was upon the defendant in the trial; and no injustice was done the plaintiff by the ruling of the court.

The instructions of the court, given at the instance of appellee, seem to have been substantially correct. We are inclined to think that one of them stated an abstract proposition of law that had no very apparent application to the case; and that several of them were not technically accurate; but we find no serious objections to any of them. The jury was instructed by the court very fully and liberally upon behalf of appellant. Some eighteen instructions asked by him were given without any modification.

Of the qualifications made in the three that were modified by the court, some were entirely proper and the others unimportant.

Of the seven which were absolutely refused, some were duplicate of instructions that were given, some did not accurately state the law, and some had no proper bearing upon the issues and were calculated to mislead the jury.

We find no error in the record of sufficient importance to reverse the judgment, and it is therefore affirmed. '

Judgment affirmed.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Chicago, Rock Island & Pacific Railway Company v. James Brisbane.

      Railroads—Ticlcefs—Failure to Procure—Extra Fare—Instructions— Duplicates—Remote Damages.

    1. Railroad companies are required' to keep their offices open for the sale of tickets to passengers for a reasonable time before the departure of each train and up to the published time for its departure, but not up to the time of actual departure.
    2. If convenient and reasonable opportunity to purchase tickets is afforded the public, extra fare may be charged such as do not avail themselves thereof. A passenger refusing to pay the extra fare under such circumstances may be ejected from the train.

      8. A demand for fare by the conductor of a passenger train must be obeyed or the passenger mud, at the conductor’s request, leave the train in a peaceable mapner. If he refuses so to do, he can not recover damages for the use of necessary force in ejecting him from the train, unless the expulsion was malicious or wanton.
    4. In the case presented, it is held: That certain instructions given for the plaintiff were improper; that the instruction touching the assessment of punitive damages was erroneous because not- based on the evidence; that an instruction to the effect that the plaintiff might recover for the feelings of shame and humiliation which he endured in consequence of being put off and expelled from a public conveyance, was erroneous; that the court erred in refusing certain instructions; that the plaintiff was not entitled to recover the remote damages caused by his walk of several miles to another station, when he might have returned a short distance to the station from whence he started; and that it does not appear that the conduct of the conductor was wanton or malicious.
    5. It is proper to refuse an instruction which is substantially identical with another which is given.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Thomas F. Withrow, James C. Hutchins and Snapp & Snapp, for appellant.
    Messrs. Higgins & Akin, for appellee.
   Baker, J.

It is six miles and a fraction from the station of Hew Lenox to Joliet, on the line of appellant’s railway; and on the first day of June, 1886, the ticket fare from the one place to the other was 19 cents, and the train fare without a ticket was 29 cents. On the morning of the day indicated James Brisbane, appellee, arrived at the first named station at or about the time the train locally known as the 10:44 train stopped at the depot. He was desirous of procuring a ticket for Joliet, but the ticket office was closed, and he was unable to do so. Having business at Joliet, he got on the train without a ticket, and the train almost immediately thereafter pulled out from the station. In two or three minutes the conductor came along and demanded his ticket, or in lieu thereof 29 cents fare to Joliet. Appellee had no ticket, but stated the circumstances and refused to pay more than 19 cents. Thereupon, the conduct- or, after some little altercation between them, stopped the train and put him off the cars at a place about a quarter of a mile from Hew Lenox depot. Brisbane’s residence was about half a mile east of the depot. He did not go home for a horse and conveyance which he had there, but walked to Joliet, and being troubled somewhat with asthma, his bodily health was injured by such walk, and he felt the evil effects for two or three days.

In this suit against the railway company to recover damages for the tort in thus ejecting him from the train, Brisbane had a verdict and judgment for $150. The facts with reference to the walk to Joliet and the consequent bodily injury were permitted by the court to go to the jury over the objections of appellant.

Humorous points are urged against the rulings of the court upon the trial; and a portion only of these it is deemed expedient to notice.

In the case of the St. L., A. & T. H. R. R. Co. v. South, 43 Ill. 176, the priqr cases of C., B. & Q. R. R. Co. v. Parks, 18 Ill. 460, and St. L., A. & C. R. R. Co. v. Dalby, 19 Ill. 353, were qualified and explained, and it was there held that railroad companies are required to keep open their office for the sale of tickets to passengers for a reasonable time before the departure of each train and up to the time fixed by its published rules for its departure, but not up to the time of actual departure; and also held that if convenient and reasonable opportunity to purchase tickets is afforded the public, and parties do not avail themselves of it, then such parties are alone at fault, and must pay the extra fare demanded on the cars, or, on refusal, may be ejected from the train. The evidence in the case under examination tends strongly to prove that the 10:44 train was late in its arrival at Hew Lenox that morning and that the ticket office was open for the sale of tickets until after the expiration of the time fixed and advertised for the departure of the train. By the 3d, 5th and 6th instructions given at the request of appellee it was required of appellant that it should have kept its office open for the sale of tickets up to and until the departure of the train. They were, under the authority cited, very clearly erroneous.

There was also further error in the 6th instruction, for the reason that it allowed the jury to assess punitive damages in addition to actual damages, if they believed from the evidence that “ the conductor in ejecting plaintiff from the train used unreasonable force or violence.” There was no evidence upon which to base such instruction, or make the claim that unreasonable or unnecessary force and violence were used.

According to the testimony of the conductor and the brakeman, the only force used was that the former put his hand on Brisbane’s shoulder, after he had declared he would not pay the fare demanded, and told him that he would have to pay his fare or get off the train, and that thereupon he got up and walked out of the car. According to the testimony of appellee himself, he refused to comply with the request of the conductor that he should leave the car, and the latter had to use force and violence in getting him up from the seat, and had to drag him out of the seat and shove him toward the door. There was nothing in this proving or tending to prove that more force was used than was necessary to eject him, or that the force or violence was unreasonable.

The 5th instruction, likewise, seems to he erroneous in respect to a matter other than that already mentioned with reference thereto. As it was no breach of duty to the public or wrong to appellee that the railroad company did not keep its office opon for the sale of tickets up to the time of the actual departure of the train, it follows that the only actionable tort stated in said instruction was that appellee was ejected from the train at a place other than a regular station. Yet, the court told the jury that in assessing damages they might also compensate the plaintiff for the feelings of shame or humiliation which he endured in consequence of being put off and expelled from a public conveyance.

The only point, under the instruction, in regard to which the rights of appellee were violated, was that he was put off the cars a quarter of a mile from the depot instead of at the depot or regular station. In the case stated by the instruction appellant had a legal right to subject him to the indignity of an expulsion from the train, and the shame and humiliation consisted in being removed from the cars, and not in the place of removal.

The mortification of being put off the cars at a regular station in the presence of bystanders would undoubtedly have been as great as that caused by being ejected therefrom eighty rods, from such station. Under the hypothesis submitted to the jury, appellee was entitled to recover only the damages occasioned by the fact that he was put off at the place he was, instead of at the depot. C., B. & Q. R. R. Co. v. Parks, 18 Ill. 460.

The court refused the motion of appellant to instruct the jury that the plaintiff should not be allowed to recover compensation or damages in consequence of walking to Joliet after being put off the cars. This action of the court was erroneous, as also were its rulings in admitting in evidence and Afterward overruling the motion to exclude from the jury the testimony to which the instruction referred and upon which it was based. Appellee was only entitled to recover such damages as naturally flowed from and were the direct result of the wrong done him. His walk of over six miles to Joliet was not the natural consequence and natural result of the tortious act of putting him off the train a quarter of a mile from Hew Lenox depot. He might have walked back to the village, and there either have taken the next train or hired a conveyance to Joliet; or he might have walked three quarters of a mile to his own home, and there procured his horse and top wagon for the journey." Ilis walk to Joliet was his own voluntary act, and not the proximate and necessary result of his ejectment from the cars. He was in poor health and troubled with the asthma, but whether in such condition or not he had no legal right to injure his bodily health by a voluntary and unnecessary walk of six miles and over, and then call upon the appellant to compensate him in damages for such injury. Such element of damage is too remote and can not be recovered. L, B. & W. R’y Co. v. Birney, 71 Ill. 391.

The 8th, 9th and 10th refused instructions were substantially, alike in legal principle, and it was not the duty of the court to incumber the record with instructions which were, in effect, mere repetitions of each other. The court, however, should have given one or another of these instructions. The necessary protection of the lives, safety and comfort of the traveling public demands that the conductor of a passenger train should have the supervision and control of his train. It is the doctrine, as held in this State, that a demand on the part of a passenger conductor for fare must be obeyed, or else the passengers must, at the request of such conductor, leave the train in a peaceable manner. In either event, if he is wronged, he may seek and get redress in the courts. He can not, in case he makes resistance, recover damages for necessary force used by the conductor in ejecting him from the train, unless the expulsion was malicious or wanton. C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499 5 Pennsylvania R. R. Co. v. Connell, 112 Ill. 295.

The circumstances of the case in hand exclude any theory that the conduct of the conductor was wanton or malicious. The instructions were expressly limited to personal injury received while being removed from the car, and were based upon the hypothesis that the jury believed from the evidence that the conductor used only reasonable and necessary force in ejecting appellee.

For the errors indicated herein the judgment is reversed and the cauge remanded. Reversed and remanded.


author: Lacey, J.

text:
    Chicago, Burlington & Quincy Railroad Company v. Matilda Johnson.

      Railroads—Personal Injury—Evidence.

    In an action against a railroad company to recover for injuries alleged to have been caused by the negligence of a conductor in assisting the plaintiff to alight from a train, it is held: That the evidence does not sustain the verdict for the plaintiff; and that evidence of the value of services of her daughters, who made no charge for such services, was improperly admitted.

      [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. O. F. Price and Jack & Tichenor, for appellant.
    Messrs. L. Harmon and McCulloch & McCulloch, for appellee.
    The passenger is justified in obeying the instructions of the conductor in regard to entrance and exit to and from the cars and in changing from one train to another. C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 111, 162; Allender v. C., R. I. & P. R. R. Co., 43 Iowa, 276; St. L., I. M. & S. R. R. Co. v. Cantrell, 37 Ark. 519; McIntyre v. N. Y. Cent., 37 N. Y. 287.
    Carriers of passengers must afford all needful accommodations to enable them to alight from the conveyance. K. & N. L. P. Co. v. True, 88 Ill. 608; Eagle Packet Co. v. Defries, 94 Ill. 598; I. C. R. R. Co. v. Slatton, 54 Ill. 133; Imhoff v. C. R. R. Co., 20 Wis. 344; Memphis R. R. Co. v. Whitfield, 44 Miss. 466.
    Assistance rendered by conductors is within the line of their duty, and negligence therein renders principals liable. Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49.
    Crippled and infirm persons are entitled to more consideration on account of their infirmities. Colt v. Sixth Ave. R. R. Co., 1 Jones & Spencer, 190; Del. & Lac. R. R. Co. v.Naphleys, 90 Pa. St. 135; Sheridan v. R. R. Co., 36 N. Y. 39; O’Mara v. R. R. Co., 38 N. Y. 445.
   Lacey, J.

This is a suit brought by the appellee to recover damages for injury to her right leg and knee, interfering with her power of locomotion, resulting from a fall in 1885 while changing cars at Galesburg from one branch of appellant’s road to another, the fall being occasioned as is alleged by the carelessness of the conductor on appellant’s train who was assisting her to alight from the platform or steps of the car to the landing below.

The appellee claims that the conductor held out his arms as if to assist her-and when she attempted to take hold of him or rely on his assistance he suddenly removed them and let her fall, by which she was greatly injured. The conductor, however, says the appellee was falling before he attempted to assist her. The damages claimed are $5,000 and the jury gave her the full amount.

It is argued by counsel for appellant that the proof failed to support the allegation of negligence, or the amount of damages recovered.

It seems that the right leg was somewhat shorter than the other and larger at the knee joint and ankle and that appellee was disabled in her power to walk without crutches. But the decided preponderance of the evidence shows that the condition of the limb was caused by a fracture of the neck of the thigh bone which had been broken off where the socket goes into the hip bone several years before the accident in Gales-burg.

Dr. Thomas attended her for this injury and states that it left a lameness so she had to walk with a cane, and that there was shortening of the limb in consequence.

Dr. Stewart testifies, that there is cracking or grating to be felt in the knee joint and something of that kind in the ankle but not so much. That this indicates dryness of the parts and that there has been excessive inflammation in the parts, etc. lie attributed this condition to some old injury resulting in a low grade of inflammation and it has continued a long time.

Drs. Santhord and Dickenson, who attended appellee at the time of the alleged injury, both state that she told them that at the time they called on her professionally the enlarged condition of the leg was caused by the injury to the thigh bone. Appellee and her two daughters deny that she made the statements, but as far as we discover from the record they do not testify that such was not the case.

These two attending physicians testify that the injury they were called on to treat consisted, to outward appearances, of a small red spot just below the knee about the size of a quarter of a dollar and that in their opinion the injury was a simple sprain of the muscles or tendons about the knee which was not permanent in its nature. It may be admitted that there was slight evidence to the contrary but to our minds it seems clear that there was no sufficient injury shown resulting from the accident complained of as would justify a large verdict for damages saying nothing of the amount found by the jury, 85,000.

It would seem that the jury must have given her compensation for the damages resulting from the injury to the thigh bone as well as those resulting from the fall at Galesburg. The evidence was also'meagre to show that the injury at Galesburg was more the negligence of the conductor than of appellee. We will not undertake to canvass that evidence in detail as the cause must be retried and such course would serve no useful purpose. The other errors assigned it will not be necessary to notice, as, if any exist, they will no doubt be corrected on a new trial, with the exception, we may state, it was error to admit in evidence the value of the services of appellee’s own daughters, who made no charge for their services.

The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


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    William H. Reynolds v. Timothy Moshier, for use of, etc.

      Negotiable Instruments—Delivery of Note—Chattel Mortgage Sale.

    1. A delivery to the payee, actual or constructive, is essential to the validity of a promissory note.
    2. A person receiving a promissory note not payable to himself, without indorsement, takes it subject to all legal and equitable defenses.
    3. In an action on a note alleged to have been taken for personal property sold at a chattel mortgage sale by an agent, it is held: That the evidence almost conclusively shows a want of delivery; and that the court below erred in giving and refusing instructions.

      [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kane County; the Hon. Abthüb A. Smith, Judge, presiding.
    Mr. J. A. McKenzie, for appellant.
    No brief filed for appellee.
   Lacey, J.

This was a suit commenced before a Justice of the Peace, and judgment rendered against appellee, whereupon it was' appealed to the Circuit Court, and was there tried by a jury and verdict and judgment in favor of appellee for $18.05.

The basis'of the suit was a purported promissory note for the sum of $9, dated October 28, 1876, due seven months after date, payable to Timothy Moshier and signed by W. H. Reynolds and J. A. Reynolds. The appellant by affidavit put in issue the fact of the assignment to or the ownership of the said Elizabeth Reynolds, in the said note.

The evidence on the part of appellant tended to show that the note was taken by him to Timothy Moshier for personal property sold by him as the agent of said Timothy Moshier, at a chattel mortgage sale of property, on a chattel mortgage given by S. M. Reynolds to said T. Moshier, in January, 1875, and that said T. Moshier gave the note to appellant for his services, and that said T. Moshier had never assigned or in any manner delivered the said note to Elizabeth Reynolds or any one for her, and the said Timothy Moshier disclaimed any interest in the note or of having any claim against appellant, and that the note was not given for any property of Marion Reynolds not in the chattel mortgage.

The evidence of the appellee tended to show that S. M. Reynolds, the husband of Elizabeth Reynolds and the maker of the chattel mortgage, had some other property not in the chattel mortgage and at the sale had it sold by his brother, the appellant, with the mortgaged property, but he never talked with Timothy Moshier about it. That some of his property was sold at $9, to appellant, and James signed it as security. It was in the note book with the other notes, and that on the night of the day of sale appellant handed the note to him and that ever since that time the note has been in the possession of the said S. M. Eeynolds.

Upon this state of the evidence the court below instructed the jury on the part of appellee as follows:

“The court instructs the jury for the plaintiff that if they believe, from the evidence, that the defendant William H. Eeynolds bought at public sale of his brother’s effects property to the amount of the note and gave his note on the day of sale, with his brother James Eeynolds as security, and" that the note was made payable to Mr. Moshier as accommodation to the owner, Marion Eeynolds, that the owner took possession of the note on the day it was given and has had it ever since, and that the note was never paid to either Moshier or Eeynolds, then it will be the duty of the jury to find for the plaintiff the amount due on the note.” The appellant then asked the court to instruct the jury by his third refused instruction, that, “ in order to give validity to a promissory note, there must be not only an execution thereof, but there must be a delivery to payee or some one for the payee, and in this case, if the plaintiff, in behalf of Elizabeth Eeynolds, claims that the note was never given for the property to which Moshier had any claim, that Moshier never had anything to do with the note and knew nothing about it, that it was given for property of Marion Eeynolds and the note was never delivered to Moshier or any one for him, but was delivered 1o Maricn Eeynolds, then if such claim is sustained by a preponderance of the evidence, the plaintiff Moshier never was the legal holder of the said note, and this suit can not be maintained.” But the court refused to give the said instruction to which ruling the appellant, at the time, excepted.

Thereupon the jury found a verdict for the appellee for §18.05, and after refusing to set aside the verdict and grant a new trial, the court rendered judgment on the verdict, from which judgment this appeal is taken, and the giving of the appellee’s instruction above recited and the refusing the appellant’s instruction Mo. 3, is assigned, among other things, for error.

The evidence in the case almost conclusively showed that the note in question was made payable to Moshier, if it was given for property not in the mortgage, without any authorityfrom him, either express or implied. It was done without his authority or consent, and was not within the general scope of the authority given to appellant to sell the mortgage property and to take notes thereon. It seems the giving of the note in question, according to Marion’s evidence, was a device entered into between him and appellant to secure his property from his creditors, without Moshier’s knowledge or acquiescence. Evidently under such circumstances the pretended note would be void. The note, as a note, was worth no more than blank paper. It requires the consent of the payee of a note, as well as the maker, to make it valid. Mot only must it be signed, but it must be delivered, to make it a note.

This note, invalid as it was, if given for property not covered by the mortgage could not be vitalized by delivery by appellant to Marion Reynolds, and by him to his wife, Elizabeth. Defense can be made to it in either of their hands, as there was no indorsement of the note by Moshier. This principle has been fully decided in the First National Bank v. Strang, 72 Ill. 559.

It follows, then, that the court erred in giving the above instruction on the part of the appellee, and in refusing the appellant’s third refused instruction. Again, if the evidence showed that it was the property of Moshier included in the chattel mortgage, then Moshier had a right to dispose of it to appellant in any way he saw proper, accounting for it to Marion Reynolds.

For the reasons above given the judgment is reversed and the cause remanded.

Reversed cmd remanded.


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    Michael Murphy et al. v. Johanna Curran et al.

      Dram Shops—Action for Damages for Causing Death—Instructions— Repugnance—Exemplary Damages—Evidence.

    1. Instructions which state the law differently in regard to a particular matter or state of circumstances, are repugnant, and no repetition of the correct instruction can cure the error in the other.
    2. In an action brought by a widow and her minor children against saloonkeepers, to recover damages for causing the death of her husband and their father, it is held: That an instruction which does not require the jury to find that the death was caused by the alleged intoxication, is erroneous; that this error is not cured by other instructions which fairly submit that issue to the jury; that an instruction as to exemplary damages, in view of the evidence, was improperly given; that, to warrant such an instruction, there must be something beyond the mere fact of the sale of intoxicating liquors and resulting damages; and that there was not sufficient evidence against one of the defendants to justify the verdict against him.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanch aed, Judge, presiding.
    Messrs. Maloney & Stead and S. C. Stough, for appellant.
    Messrs. Bull, Strawn & Ruger, for appellee.
   Lacey, J.

This suit was brought by appellees, the widow and minor children of Michael Curran, deceased, under the Dram Shop Act, against John Down, C. O’Lauglilin, Ernest Waterman, Martin McGitrick, Henry Book, Charles Boob, Charles McGitrick, Michael McGitrick, Walter Adams, Michael Murphy and John Heaton, saloonkeepers in the village of Seneca, to recover damages to their means of support caused by the death of said Curran, December 6,1885, which death is alleged to have been caused by the intoxication of Curran produced in whole or in part by the above named defendants selling or giving away to him intoxicating liquors.

On the trial of the cause before a jury, after the evidence was all in, there being no evidence against the eight of said defendants first above named, the suit was dismissed as to them on the plaintiff’s motion, leaving the suit to stand against the three last named, Walter Adams, Michael Murphy and John Heaton.

The jury found the three last named defendants guilty and assessed appellees’ damages at §5,000, upon which verdict the court, after overruling a motion for a new trial, rendered judgment, from which judgment this appeal is taken.

The circumstances of Curran’s death were about as follows;

On the afternoon of December 5, 1885, he was in the village of Seneca, and was seen in several saloons that afternoon drinking, and playing cards and pool in some one or more of them. The last seen of him was about half past six or seven o’clock p. h., a little after dark, in front of Michael Murphy’s saloon, not drunk or sober—but “ had a few drinks in” as one witness testifies—was “under the influence of liquor ” as another states, and still another that he “ was drunk all the witnesses thought at the time he was able to take care of himself; one witness for appellant saw him at seven and thought him sober.

For the last few years he had been in the habit of getting intoxicated. Some time between six and seven o’clock p. m„ of the 5th, in the condition above stated, he started to ride home on a gentle horse.

The next seen of him was by John Stanton, who had been with him at Michael Murphy’s saloon in Seneca, as above stated, lying in the highway apparently paralyzed, with his horse four or five feet from him. He was taken by Mr-Stanton and another and conveyed home in a buggy, and his wife sent for the doctor, who, on arriving there, found him unconscious and Ms breath smelling of liquor. The injury seemed to be in the head caused by falling or something of the kind. The opinion of the doctor was that there had been a slight fracture of the base of the skull. He died the next morning at seven o’clock. It was about eight o’clock in the evening when he was taken home. It will be seen that there was no positive or clear proof that the injuries causing his death were the result of any intoxication, though the circum stances tended to show that such was the case. It was a proper question to be submitted to the jury on proper instructions.

It appears, from the evidence, that some time in the year 1882, the village Constable, Patrick Meagher, notified the defendant Heaton not to sell the deceased, Curran, any more liquor, as he was in the habit of getting intoxicated, but no notice was given to the defendants Murphy and Adams, they not being in the sal con business at the time.

The causes assigned for error are the giving of improper instructions on the part of the appellees, and that the evidence is not sufficient to support the verdict, and also the refusing proper instructions on the part of appellants, notably, the third and eighth refused instructions.

The first objection made by counsel for appellants is to the second given instruction for the appellees. It is as follows:

If the evidence shows that Michael Curran was intoxicated on the said 5th day of December, 1885, and that such intoxication was caused in part by intoxicating liquor sold or given to him by said defendant Adams, or some one in his employ, and in part by intoxicating liquor sold or given to him by said defendant Heaton, or some one in his employ, and in part by intoxicating liquor sold or given to him by said defendant Murphy, or some one in his employ, then all of said defendants are jointly liable for all the injuries sustained by said plaintiffs in their means of support (if any is shown _by the evidence), notwithstanding some one of the defendants may have contributed thereto to a greater extent than the others. And it would make no difference whether Curran called for the liquor himself or some one treated him or called for it for him.”

We think the instruction is erroneous in the particular complained of, in that it does not require, to create liability, that there should be any evidence that Curran came to his death in consequence of the alleged intoxication. The instruction ignores that question and does not require the jury to find that the death was caused thereby, but expressly tells it that in case the appellants sold deceased the intoxicating liquor in certain manner specified, then all of the appellants were jointly liable for the injuries, if any were sustained by appellees in their means of support.

If the cause of the death had, from the evidence, been so apparent that the jury must necessarily have found that it was the result of the intoxication, supposed by the instruction to be proven, then, perhaps, no injury could result from the error, but the evidence was not so clear on that point and should have been fairly submitted to the jury. It is true that other instructions given for appellees, as well as for appellants, fairly submit such issue to the jury, and it is claimed that this cured the error in instruction Ho. 2. But we are inclined to think not, under the facts in this case.

In Hoge v. The People, 117 Ill. 35, a case similar to this on the question we are now discussing, the Supreme Court, in answer to the same suggestion that is made here, that as other instructions stated the law accurately, the erroneous instruction could do no harm, says: “ But where an instruction says the law is one thing with regard to a particular matter or state of circumstances, and another instruction says the law is another and materially diEerent thing in regard to the same matter, the instructions are repugnant and no repetition of the correct instruction can cure the error of those that are incorrect, for the jury, assuming, as is their duty, that they are all correct, may as readily follow those that are incorrect as those that are correct.” This quotation expresses all that need be said in reference to the suggestion made.

We are also inclined to think that, the state of the evidence considered, it was error to give appellee’s eighth instruction relative to exemplary damages.' The jury was instructed that it might find exemplary damages in addition to actual damages if it “believed from the evidence that the liquor was sold wantonly and wilfully, or under aggravating circumstances, to such an extent as they think proper, from all the evidence? should be awarded Against the defendant found guilty who is least liable.”

This instruction appears to recognize the rule of law that to authorize the recovery of exemplary damages there must he some kind of turpitude on the part of the wrongdoer outside of the fact that there was a hare right of recovery.

Facts and circumstances varying with the features of the case may authorize it, but there must be something beyond the mere fact of the sale of intoxicating liquor and resulting damages to justify it. Kellerman v. Arnold, 71 Ill. 632; Meidel v. Anthis, 71 Ill. 241, 247; Hacket v. Smelsley, 77 Ill. 109. And the instruction also recognizes the principle that the finding of exemplary damages should be no more than would be assessed against the defendant least at fault. That is, that there should not be a verdict for exemplary damages for all in a joint suit whore one of the defendants was not subject to such assessment.

We find no fault with the principle announced in the instruction except that portion which told the jury that exemplary damages could be assessed where the intoxicating liquor was sold wilfully. We think this might be misleading. To sell liquor at all is to sell it knowingly and wilfully. The wilfulness must refer to the sale under some kind of circumstance showing a wilful disregard of the law on the subject, or of the consequences to those depending on the deceased for support.

But the serious objection to the giving the instruction is that the circumstances of the case as to the defendant Adams did not warrant it at all. As to the other two it might. Heaton, if there was any proof against him at all, had been notified not to sell Curran any intoxicating liquor. The evidence tended to show that Murphy had sold deceased liquor while he was intoxicated.

But almost the only proof against Adams was the testimony of John Sullivan. When Sullivan went into Adams’ saloon on Curran’s invitation it was early in the afternoon, between 12 o’clock m. and 2 o’clock p. m., and at that time Curran, as Sullivan swears, was not under the influence of intoxicating liquor. It is true that there was evidence that Curran was in Adams’ saloon again late in the afternoon when he may have been somewhat intoxicated, but there was no proof that he drank anything at that time, unless the mere fact that he was in the saloon for a short time could, be deemed proof, which we think it could not, at least sufficient.

It is insisted that the fact that Curran had been in the habit of being intoxicated for a few years prior to that time, and that Adams lived in Seneca and kept saloon for a part of the time, was sufficient to charge Adams with notice of the fact; but we think other proof was required than that found in the record to charge Adams with such notice. We conclude, then, that there was not sufficient proof against Adams to warrant such an instruction.

We are also of the qpinion that there was not sufficient evidence against defendant Heaton to warrant the jury in finding him guilty.

The only evidence against him in regard to his having sold Curran any intoxicating liquors consisted nearly entirely of the testimony of John Stanton and some others, that they had seen him in Heaton’s saloon during the afternoon, and that Curran became intoxicated, and that he was a man that liked to drink.

Stanton’s testimony was about as follows: “ Saw him (deceased) first in Heaton’s saloon, about 4 o’clock; there was a big crowd in. I was in a hurry; it was pretty cold and I stood by the stove warming myself. Curran came up and told the bartender to get me the best there was in the house. I took some whisky and he paid for it; threw 10 cents on the bar and paid for it. I took the whisky at the bar. He had a cue in his hand—billiard cue. The pool table was right back of the stove; east of the stove. I was about fifteen feet from the bar. I stayed there ten or fifteen minutes. I only drank that once with him. Stanton then went out and came back in about half an hour and saw Curran still there; he was standing back of the pool table talking. This is all I know about it. I saw him after that in Michael Murphy’s saloon. I did not see Michael Curran drink any liquors in Heaton’s saloon that day.”

Thomas Cudigan saw Curran in Heaton’s saloon playing pool at 2 or 3 o’clock that day; saw him go up to the bar with James Stanton, but did not see him “ drink any liquor at John Heaton’s that day.” About 4 o’clock Diseol saw deceased iu Heaton’s saloon standing at the bar alone—nothing on the bar before him. Saw him drink nothing at Heaton’s. Patrick Meagher and one or two others might have seen deceased in Heaton’s saloon about this time.

It will be remembered that Heaton had been notified not to sell Curran any intoxicating drinks in 1882, and this may account for his treating John Stanton without drinking himself. The fact that Curran was intoxicated during the day, in view of the fact that he had been spending a good deal of his time in Murphy’s saloon and that there were other saloons in town can not be of any weight. It will not do to infer that merely because a man enters a saloon that he purchased intoxicating liquors of the saloonkeeper.

It ought to require more substantial proof; yet on such testimony a judgment was recovered against Heaton of §5,000.

For the above errors the judgment of the court below is reversed and the cause remanded.

Reversed wild remanded.


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    Selina Gilmore and David Gilmore, Impl'd, etc., v. Martin C. Bissell.

      Usury—Interest on Interest.

    Upon the renewal of a note the parties may contract to give and receive interest on yearly interest already due without rendering the transaction usurious.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Doreence Dibell, Judge, presiding.
    Mr. E. Meers, for appellants.

      To give a greater rate of interest than is allowed by statute, on a pre-existing debt for an extension, is within the statute. Shirley v. Welty, 19 Ill. 623.
    Interest past due and unpaid can not be added to the principal and draw interest. McFadden v. Fortier, 20 Ill. 509.
    The fact that new notes, from time to time, have been given does not change the case. Saylor v. Daniels, 37 Ill. 331; House v. Davis, 60 Ill. 367; Jenkins v. International Bank, 97 Ill. 568.
    If a usurious contract is made, express or implied, to take or reserve more than lawful interest, it falls within the statute. Peddicord v. Connard, 85 Ill. 102.
    When it is provided the interest is payable annually—which is not paid when due—it may by agreement, after due and unpaid, be added to the principal and draw interest. Thayer v. Wilmington Star Coal Co., 105 Ill. 540.
    To constitute usury from taking interest upon interest, it is not necessary to prove that there was an agreement made in advance for the payment of such interest. To give a sum in excess of the legal interest for an extension, the contract will be usurious. Leonard v. Patton, 106 Ill. 99.
    It is usury to take interest on interest, which exceeds the amount of interest fixed by the statute as the maximum. First National Bank v. Davis, 108 Ill. 633; Farwell v. Meyer, 35 Ill. 40.
    Interest is payable on interest only on express contract made after the interest has become due and payable. Leonard v. Villars, 23 Ill. 377; Barker v. International Bank, 80 Ill. 96, 101; Edgerton v. Weaver, 105 Ill. 43.
    Mr. George S. House, for appellee.
    In the case at bar the appellants agreed to pay interest annually. This they did not do. A settlement was had in August, 1878, and the loan renewed and extended. In the making of this renewal and extension, and as consideration therefor, they agreed to pay interest at six per cent, on annual interest then due and unpaid from the time of its maturity, Haworth v. Huling, 87 Ill. 23.
   Lacey, J.

The appellee filed his bill against appellants to foreclose a certain mortgage given by them to Wm. Findley on certain real estate situate in Will County, dated December 1, 18S3, to secure the payment of a certain promissory note also given to said Findley, dated October 25, 1883, and due October 24, 1884, for the sum of $2,969.15, with interest at the rate of eight per cent, per annum. The bill alleged that the said Findley duly assigned the said note and mortgage to appellee, and that the entire sum was due.

The appellants answering, admit the execution of the said note and mortgage, but set up and insist on certain deductions on account of usury, as follows: On Anril 14, 1875, appellees gave to said Findley their note and mortgage for $1,000 with interest at ten per cent., and renewed the same August 28, 1878, no interest having been paid, which was due annually, by giving a renewed note and mortgage for the sum of $1,350, being about twelve and a half per cent, interest instead of ten as the mortgage provided, the interest being arrived at by counting interest on the interest due at six per cent. Without counting interest on interest due there would have been only $1,337.50. The note of 1878 drew ten per cent, interest payable annually. That afterward the note and mortgage in suit was given containing a new consideration of $1,006.35 besides the last renewed note and interest on which the interest was computed the same as the first renewal. The mortgage was duly foreclosed without deduction for usury.

It is claimed that the usury taken in 1878 in the renewal consisted in charging $12.50 too much; and that this originated in charging interest on interest due at the rate of six per cent., and in the same manner on the second renewal.

It will be seen by reference to the evidence that this was done by express agreement between Findley and appellants, at each time of renewal. It can not matter that appellants did it to save suit and foreclosure; they were nevertheless free agents, We are of the opinion that the transaction was legal, and that the appellants could contract to give and Findley to receive interest on the yearly interest after due. In this case that was all that was done. In Haworth v. Huling, 87 Ill. 23, a case very similar to this, the Supreme Court say: “The mortgagor could pay interest on interest previously' due on his indebtedness under his contract if he chose.” That was all that was done in this case, and the transaction appears to have been legal and not obnoxious to the statute of usury.

The decree of foreclosure is affirmed.

Decree affirmed..


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    Fred Willits v. Charles G. Slocumb.

      Injunctions—Dissolution in Part—Breach of Bond—Taxes—Pleading.

    1. Where au injunction enjoining the collection of separate and distinct taxes clue to separate and independent corporations is dissolved as to part and sustained as to the remainder of such taxes, there is a breach of the bond.
    2. In the case presented, it is held: That the breach as to attorney’s fees was not well assigned; and that the demurrer to the'declaration should have been overruled, the general breach assigned being sufficient to sustain a recovery of at least nominal damages.
    [Opinion filed December 9, 1887.]
    In error to the Circuit Court of Mercer County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Bassett & Wharton, for plaintiff in error.
    Messrs. Pepper & Brook, for defendant in error.
   Lacey, J.

This was a suit on an injunction bond executed by defendant in error, as surety for the Burlington Lumber Company in the sum of $500 in a bill of equity of the said Burlington Lumber Company, against plaintiff in error, filed in the Circuit Court March 3, 1886, praying the plaintiff in error might be enjoined from doing certain things and acts in the bill mentioned, which said bond had a condition therein specified as follows: That if the said Burlington Lumber

Company should well and truly pay to plaintiff in error all such costs and damages as should be awarded against it, in case the said injunction should be dissolved, then the said written obligation to be void, otherwise to remain in full force.

The declaration shows that upon the giving of the said bond a writ of injunction issued out of the said court, etc., enjoining the plaintiff in error, collector of taxes for the town of Hew Boston in said county to desist and refrain from collecting certain taxes levied and assessed against said Burlington Lumber Company for the year 1885, amounting to $204.96 until the further order of the court in the premises, and that the writ was duly served. The declaration further avers that at the November term of the Circuit Court, 1886, such proceedings were had, to wit, on December 9, 1886, that it was adjudg id and decreed by the said court that the said injunction should be dissolved as to all of the taxes so restrained except the city and bond taxes of the corporation of New Boston. The declaration further avers that the plaintiff in error was the colector of taxes in the town of New Boston for the year 1885, and at the time the said injunction was issued and served on him, he had the collector’s books with warrants commanding him to collect certain taxes therein levied and assessed against the said Burlington Lumber Company for the year 1885, amounting to the sum of $204.96, all of which amount, to the sum of $115.92, was for State, town, road, bridge and school tax; that said injunction was dissolved as to all the taxes last aforesaid, and that the plaintiff expended and became liable to pay for attorney’s fees and other expenses in defending the said injunction suit the sum of $100. which had not been paid, claiming the right to recover on the bond and damages to the sum of $500.

In this declaration a demurrer was sustained by the court, and plaintiff in error abiding his declaration, judgment was rendered against him for costs, and to reverse such judgment this writ of error is sued out.

The question arising on this record is whether there was any breach of the obligations of the bond; in other words, was the injunction dissolved in contemplation of law. And coming to particulars, the question arises whether the obligation to pay the penalty in the injunction bond is complete where the breach of the condition is to only a number of the taxes enjoined. The condition in the bond declared on, was that the obligation should be void if the injunction was sustained, and should be in force in case the injunction should be dissolved.

Now the injunction was only dissolved as to a number of the taxes, and sustained as to one. It was dissolved as to §115.92, and sustained as to the balance, §99.04, the latter being the city and bond taxes of the city of New Boston.

We are inclined to hold under the peculiar state of facts in this case, that there is a breach of the bond. It is seen the injunction is dissolved in whole so far as it went to a number of the taxes named in the writ. The taxes are due to as many distinct municipalities as there are kinds of taxes. No one of them has any concern with the other. The one is not authorized to defend or litigate for the other. The tax collector is the agent of all to collect merely. If the injunction had been sustained as to a part of each and dissolved as to a part, the matter would be different. There would be no breach, clearly, in that case. High on Injunctions is cited, second edition, paragraph 1678. It reads: “When an injunction is perpetuated in part, the plaintiff should not be required to pay costs, since he is the prevailing party as far as the injunction is allowed to stand, and it is error to decree costs against him.” But this refers to cases unlike the one at bar, where the matters enjoined are separate and independent, and the amount due to separate and independent corporations, and are separate and distinct claims that are enjoined.

The bond fairly read would be so interpreted. The injunction itself is a several one in its nature. But the breach as to the attorney’s fees, the special damages, is not well as. signed. It is in these words: “And the plaintiff expended, and became liable to pay for attorney’s fees and other expenses in defending said injunction suit, the sum of §100.”

This defending refers to the entire suit and no particular part of it. If the plaintiff in error had paid out this entire sum for the city of New Boston for defending for it and paid nothing on the account of the taxes for which the injunction was dissolved, then he spent that sum in defending the suit. This might very easily be the condition of affairs and the defendant in error called on to defend a suit wherein the declaration does not show by.necessary averments any liability.

Pleading is always taken most strongly against the pleader. If we do so in this case the declaration fails to show any breach as far as the special assignment of breaches is concerned. But the demurrer is a general one, and if there is enough in the declaration to sustain the canse of action without the special assignment of damages then the demurrer should have been overruled. We think there was. The averment showing that the injunction had been dissolved as to the taxes named, was, as we have shown, sufficient to show a breach of the bond.

It follows, therefore, without further assignment of breaches or damages the appellee was entitled.to recover at least nominal damages. The general breach was sufficient for that purpose. The demurrer should have been overruled as a whole. It follows for the error of the court in not overruling the demurrer to the declaration the judgment is reversed and the cause remanded.

Reversed a/nd remanded.


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    Silas Lees v. Drainage Commissioners.

      Drainage—Legal Existence of District—Change of Boundaries—Statutes—Estoppel—Jurisdietion of Commissioners—Affidavits—Certiorari— Discretion.

    1. Under the Acts of 1879 and 1881, the boundaries of a drainage district might be changed by the commissioners without a change of the petiturn and without affidavits showing the existence of the jurisdictional facts required.
    2. Upon a writ of certiorari to test the legality of the organization of a drainage district, it is held: That said district may have been properly organized and its boundaries subsequently changed by the commissioners, although the affidavits of two signers of the petition were not filed to show the jurisdictional facts required, Sec. 5 of the Act of 1879 being permissive and not mandatory; that Sec, 78 of the Act of 1885 legalized the acts and proceedings of the commissioners in establishing the district, informality alone being complained ot; and that appellant, as a signer of the petition, .is estopped from questioning the legality of the organization of the district.
    8. The curative act of 1885 must be liberally construed to promote drainage and the reclaiming of wet and overflowed lands.
    4. The common law writ of certiorari is not a writ of right and whether it will be granted, especially as to a private person, is largely a matter of discretion.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kane Countv; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. W. R. S. Hunter and Sherwood & Jones, for appellant.
    Messrs. Hopkins, Aldrich & Thatcher and J. A. Russell, for appellees.
   Lacey, J.

This was a writ of certiorari petitioned for originally by C. P. Wadley, Wilfred Reed, John Reed, Mary Barts, and William Wisher, against the appellees. The petition was filed in the Circuit Court June 11, 1884, and an order made by the Circuit Judge to whom the application was made for a return, to be made by said commissioners at the next October term of the court. Ho further action was taken in the premises until the October term, 1886, at which time the drainage commissioners, who were made parties in person, were stricken out by order of the court. On the trial of the cause, in the court below, it appeared to the court that all the petitioners had released all the rights they may have had originally to question the legality of the drainage district by releasing the right, of way over their respective lands, thereby acknowledging the legal existence of the district. Thereupon counsel for the petitioners asked for and obtained leave to amend their petition by inserting the name of appellant as co-petitioner with the original petitioners. On the hearing of the cause the said petition was dismissed and judgment rendered against the petitioners for costs. To reverse this judgment this appeal is taken. The counsel for appellant contends that there was no legal organization of the district under the Act of 1879 and amendatory acts of 1881, and that the curative clause of the statute on drainage of 1885 did not validate the acts of the commissioners had under the former acts. One of the main points of objection that the appellant brings to the record, is that it fails to show that the commissioners had before them, on August 25,1883, at their meeting to consider the question of granting or rejecting the prayer of the petition, the proper proof to show the jurisdictional facts that “ the persons whose names are signed to the petition are a majority in number of all the adult owners of land in the district, and that the signers owned more than one-third of the land situate therein, and for that reason the record should be quashed.” Sec. 5 of the Drainage Act of 1879 provides, that it shall be the duty of the drainage commissioners to meet at the time and place mentioned in the notice, etc., and that they shall thereupon proceed to ascertain whether the said petition contains the signatures of a majority of the adult persons owning land in said district, and that they are the owners of more than one-third of the land situate in said district, and the affidavits of two or more creditable signers of said petition, that they have examined the same and are acquainted with the locality of the district, and that they believe that said petition is signed by a majority of the adult owners of land in said district, and that said signers are owners of more than one-third of the land in said district; and the same may be taken as ypri/ma facie evidence of the facts set forth in said petition as against the owners of land in said district, and conclusive evidence against all persons signing said petition, that they have accepted the provisions of this act as to the assessment of benefits and damages thereunder.”

In proceeding to ascertain the above facts required by the act, the record fails to show that the affidavits of two or more of the signers of the petition were taken by the commissioners as the said act provided might be done, but the commissioners made a finding of said facts as follows: From examination, it appears to said commissioners, and they do so find, that the persons whose names are signed to the above named petition are a majority in number of the adult owners of land in said proposed district, and that the signers own more than onetliird of the lands situate therein.” Thereupon the commissioners “ declared in favor of the drain and authorized E. O. Hood to confer with County Surveyor W. H. Pease, to survey and map the route of the same, and to report to an adjourned meeting of the board Saturday, September 8, 1883.

The point of the objection is that the record failing to show that two signers of the petition filed affidavits, the facts could not, under the provisions of the statute, be ascertained by the commissioners in any other way; that the statute should be Regarded as imperative and mandatory and not directory or permissive merely; that these facts are jurisdictional, and without their being legally found, and so appearing by the record, the organization is illegal, and that the record should be quashed. This objection will be noticed farther on.

Another point of objection is as follows: The appellant further insists that the record shows that on the 22d day of September, 1883, to which day the meeting had' been adjourned from September 8th, and to which meeting the county surveyor made his report, with his maps and estimates of the cost of the proposed drain, and bn which day the final organization of the district was effected, and in which organization the commissioners changed the boundaries of the said district from those proposed in the original petition, so as to exclude 720 acres of land from and take in 600 acres to the district as it was finally organized, without amending the petition, that therefore counsel object that there is no record of any amendment to the petition or any new signers to the old one, and that there was no affidavit of two signers of the petition showing the existence of the jurisdictional facts as required by the act above recited.

Sec. 9 of the Act of 1881 provides for a change by the commissioners of the proposed drainage district from what the original petition may call for, and it is admitted by the appellant’s counsel that such change may have been in this instance legally made, but he insists that there must be an amendment to the petition. We find no provision in the statute requiring that the petition must be changed or amended? and we do not think it necessary. When once the commissioners obtain jurisdiction by. a petition, and have examined it md found it complies with the law, and orders in favor of the ii'ain, they may change the boundaries of the district under lee. 9. The commissioner's have then acquired jurisdiction and may proceed to act, and no change in the petitioxx is required. The .maps of the surveyor and the final order of the commissioners conforming thereto, ordering the formation of the district by number-, is sufficient to show the boundaries of the district. Sec. 9 provides that the commissioner's “ shall permit additional signatures to be made to the petition by any adult person or persons owning land in, or owning lands desired to be taken into such proposed district, to the end that a majority of the adult owners of land in the district, or as finally to be organized, and who shall be the owners in the aggregate of more than one-third of such land, shall be signers to the petition, which" facts said commissioners shall find and put such finding in writing, and the same shall be signed, and the clerk shall enter the same irr his record, which finding shall be conclusive.” As far as the commissioners are concerned, they have no power to compel any one to sign the petition. That is a voluntary matter. The necessary jurisdictional facts may exist even after the change without any new signatures.

As to the point first made by the appellant, that the commissioners had no right to find c‘ that the petition was signed by a majority of the adult owners of the land in the said district, and that the signers are owners of more than one-third of the land in the district” by any other means than from the affidavits of two of the petitioners, it is not well taken. The statute says such affidavits may be taken to establish such fact, not that they shall be. It is only one of the modes by which the commissioners may he informed of the existence of those facts. They may ascertain them, for any provision in the statute to the contrary, by any means they think proper.. The commissioners, however, failed to enter any Ending of record of the facts, at the time they made the final order establishing the district, as to the sufficiency in number of signers of the petition for the new district, as the statute required, but this is not complained of in appellant’s brief, and we will not specially notice it, except generally, hereafter.

The next question arising, and which has been argued on both sides is, did Sec. 78 of the Drainage Act of 1885, legalize all the acts of the commissioners in establishing the district, whether irregular or not. That section of the Drainage Act of 1885 (Session Laws of 1885, page 107,) provides as follows: “ The acts and proceedings done, and rights acquired under either of the foregoing acts, if in substantial conformity to law shall not be held to be void from merely technical informality of proceedings where no substantial rights of persons or property are adversely affected; and the same principles shall apply to this act. All drainage districts heretofore organized under any one or more of the acts hereby re pealed shall be held and hereby are declared to be legally organized, and the assessments made therein shall be held to be legally made. This act, as well as the acts repealed, shall be liberally construed to promote drainage and the reclamation of wet and overflowed lands, and the making the assessments and taxes therefor. ” The acts under which these proceedings were had were repealed by the foregoing act from which the above section is taken, except as to proceedings under the old acts.

There can be no question that the appellee in this case was duly legalized as a drainage district under the above section, unless, perchance, some substantial right of appellant’s property was affected by so doing. The points made are all technical in their character. The amendment of the petition after territory had been added, if required at all, the manner of proving the necessary facts to show that the requisite number of signers’ names were attached to the petition, whether by the affidavit of two of the signers or otherwise, and the necessity for the commissioners to preserve any proof at all either by their findings or the record of the same, were mere regulations of the former acts, and may be regarded as technical requirements. If the legislative act, in the first place, had not required those things to be done, the district could have been just as legally organized without them. The omissions complained of, if omissions they were, must be regarded as mere “technical informality of proceedings.” One of the substantial rights under the former Drainage Act, may be, that there must have been, when the district was formed, at least a majority of all the adult owners of land in the district and owners of at least one-third of the land in the aggregate signing the petition, and in favor of the enterprise. This may have been, and probably was the case in this instance, though the record of the commissioners may not show it. In case the legal number of names was attached to the petition no substantial right in that particular is violated by legalizing the “ acts and proceedings” done by the commissioners. Prima facie, at least, the organization is good. The record of it is legal and can not be attacked in a certiorari proceeding, where such question is alone tested by the record. It is only a technical rule of law that requires, in case of inferior tribunals, everything to be presumed against its record that does not affirmatively appear in it. A liberal construction at least, as we are compelled to give this curative act, would require us to hold that the record as a record is legalized in all cases where only informality is complained of. If there were not the requisite number of signers to the petition, and that fact is a substantial one of which appellant can complain, he ought for his remedy to be referred to some tribunal where he should take the affirmative. The policy of the law is, as declared by the act, “to promote drainage and the reclaiming of wet and overflowed lands and in the making and collection of assessments and taxes therefor. ” Can this be effectuated by declaring void districts created for such purpose on trifling technicalities?

We are also of the opinion, aside from the foregoing considerations, that the appellant is estopped from suing out this writ of error. He was a signer of the petition and remained upon it until the district was fully organized, although by the act he might have taken his name from it. He must be regarded as knowing what was being done, an actor and promoter of the formation of the district and as agreeing to the irregularities. The statute under which the proceeding was had provides that “the signing of any petition referred to in this act, shall be taken as conclusive against the persons so signing that they have accepted the provisions of this act and of the act to which this is an amendment, as to assessments and benefits and damages therein. ” If the act is accepted and the assessments, benefits and damages are accepted, there is little more in pecuniary interest that the appellant has in the existence of the district; certainly he can not be injured by it—only benefited; and by the use of his name and influence in part the record he now complains of has been made.

The common law writ of certiorari is not a writ of right, and whether it will be granted or not, especially as to a private person, is largely a matter of discretion, although the discretion is not an arbitrary exercise of power. A person is estopped to insist on a writ of certiorari where he was a promoter of the making of the record, and from saying those things he caused to be performed are illegal and void. Board of Supervisors v. Magoon, 109 Ill. 142. Aside from the statutory estoppel against appellant, as a signer of the petition for the organ"zation of the district and its legalization 'by the act of 1885, above "quoted, we are of the opinion that after promoting the formation of the district and accepting the benefits under the act, which the law conclusively presumes he did by the act of signing the petition, he can not even at common law in a proceeding by writ of certiorari be allowed to question the legality of the record organizing the district.

The judgment of the court below is therefore affirmed.

Judgment affirmed.