text:
    Quincy Horse Railway & Carrying Co. v. Edward F. Gruse.

      Personal Injury to Boy—Instructions—Comparative Negligence.

    In an action to recover damages for a personal injury, it is error to instruct the jury that the plaintiff may recover, although he did not exercise all such care and caution for his own safety as might have been expected, under the circumstances, from one of his age and experience.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. Wh. Marsh, Judge, presiding.
    Mr. Wm. McFadon, for appellant.
    Messrs. Davis & Babcock, for appellee.
   Conger, P. J.

On the evening of June 13, 1884, just before or about dusk, appellee, Edward F. Gruse, a boy about six years and nine months old, was playing near a watering trough standing at the edge of the sidewalk in front of his father’s store. With his hand he spurted water from the iron pipe, which conveyed the water into the trough upon two young women standing near, when one of the latter started toward him stamping her feet and clapping her hands.

The boy, frightened by the actions of the young woman, ran out into the street in a southeasterly direction with his head turned back and his eyes fixed upon the young woman.

He ran some twenty-five or thirty feet immediately in front of a street car of appellant’s which was going south and drawn by a span of mules.

The mules spread apart and the car passed partly over the boy, causing the injury for which this action was brought. A trial by jury resulted in a verdict for appellee for $4,133.33^ upon which judgment was rendered and appellant brings the record here for review.

A great deal of evidence is contained in the record in reference to the exact manner in which the injury was inflicted which we shall not notice, for the reason that we feel constrained to reverse the judgment of the court below for the error contained in appellee’s fourth instruction. It is as follows :

“ The court instructs the jury that even though they may believe from the evidence that the plaintiff did not, at the time of the injury complained of, exercise all such care and caution for his own safety as might have been expected, under the circumstances, from one of his age and intelligence, still, if they believe from the evidence that the plaintiff’s negligence was slight and that of the defendant’s driver was gross as compared with the negligence of the plaintiff, and that the driver was at the time in the line of his employment by the defendant, and that the plaintiff was injured by such negligence of the driver, in manner and form as charged in the declaration, they should find a verdict for the plaintiff.”

The doctrine of comparative negligence, as held by the Supreme Court, is well expressed in C., B. & Q. v. Lee, 68 Ill. 850: “It is an essential element to the right of action in all cases, the plaintiff, or party injured, must himself exercise ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property. There are and there can be no degrees of gross negligence. The cases all go to the length of holding, when a party has been injured for the want of ordinary care, no action will lie unless the injury is wilfully inflicted.” C.,B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, 521.

But while the plaintiff or party injured must always exercise ordinary care, this does not exclude the idea of all negligence, however slight, upon his part, for he may be entitled to recover notwithstanding he may be slightly negligent, provided the defendant is guilty of negligence which, in comparison with that of the plaintiff, was gross. Calumet I. & S. Co. v. Martin, 115 Ill. 358, 374.

The instruction in this case tells the jury that there might be a recovery although appellee did not exercise all such care and caution for his own safety as might have been expected, under the circumstances, from one of his age and intelligence.

This was precisely the care and caution that would be required of him. It would be the standard by which it could be determined whether he had exercised ordinary care or not.

The jury should have been told just the reverse of this instruction, i. 6., that the plaintiff must have used ordinary care and caution for his own safety, and that ordinary care and caution would be such as might have been reasonably expected, under the circumstances, from one of his age and intelligence.

It is apparent, from an examination of this record, that this instruction presented the vital point in the case, and it seems quite clear that it must have prevented appellant from fairly presenting its case to the jury. The jury having been told by this instruction that the plaintiff would not be required to exercise even the care and caution that might reasonably be expected from a boy between six and seven years old, under the circumstances as presented by the evidence, would havo no standard whatever for determining the degree of care that could properly be expected of him.

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

Reversed and remanded=


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    E. D. C. Haines v. James E. Chandler et al.

      Mechanic's Lien—Contract to Furnish Lumber—Time—Parties— Amendments to Petition—Insolvency—Assignment of Part of Insolvent's Property to Apply on Particular Debt.

    1. In the absence of an express contract limiting the time in which to furnish materials within three years, a mechanic’s lien is not created in favor of one who furnishes materials unless they are, in fact, furnished within one year.
    2. Suit is begun as to parties brought in by amendment to a petition for a mechanic’s lien at the time of such amendment.
    3. The act concerning voluntary assignments does not oblige every insolvent debtor to make a general assignment in conformity with its provisions, in order to appropriate his estate to the payment of a particular debt, nor prevent his preference of á particular creditor by any means that were previously lawful, excepting only a general assignment for the benefit . of creditors.
    4. In the case presented, it is held: That the evidence does not show two distinct contracts; that as against a creditor and its representatives brought in by amendments to the petition, no lien can be enforced unless the last payment for materials became due within six months before such amendments were made; and that the conveyance of the property in question to trustees to be applied on a particular debt, was not within the act concerning voluntary assignments.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McDonough County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. Pbentiss & Daily, for appellant.'
    The last lumber furnished, as is shown by the exhibits, was September 15, 1884, being all furnished within three months after the contract was made.
    The reason Haines was not specifically asked about these contracts, in his depositions, is on account of the agreement made between Haines and Chandler, in which Chandler agreed that the lumber was bought as set forth in the petition, and tiiat the exhibit to the petition is correct, which counsel at first supposed was sufficient proof of the matters in dispute. But, upon the trial, it was deemed necessary to prove the matter more specifically; hence Haines was put on the witness stand and testified as above set forth.
    Messrs. O. F. Wheat and D. G. Tunnicliff, for appellees.
   Pleasants, J.

The original petition herein was filed by appellant January 23, 1885, against Jacob Hoover and James E. Chandler, to enforce a lien for material furnished by him for the erection of buildings and other improvements upon the fair grounds at Bushnell.

Hoover, the owner, had made to the Agricultural and Mechanical Association a lease of these grounds for fourteen years, and Chandler purchased the term.

The petition set forth that in June, 1883, after the purchase, Chandler arranged with petitioner, a lumber dealer, to furnish from time to time, as should be called for by his carpenters, such articles as he should have and they should need for the erection of these improvements; but no particular amount, kind, quality or price was then mentioned, nor any definite time for delivery or payment agreed on.

We understand that this was not, in the sense of the statute, an express contract, that is, one that expressly and definitely fixes its terms. Granders v. Hartwell, 90 Ill. 324. If it was, it" did not create a lien, since, it did not show that the time for furnishing all the material contracted for was not beyond three years from the commencement thereof. Belanger v. Hersey, 90 Ill. 70.

And if it was implied, or partly implied, since the time for completing the delivery was not fixed or limited, it was equally necessary, in order to create a lien, that it should be in fact completed within one year from the commencement thereof R. S., Ch. 82, Sec. 3; Driver v. Ford, 90 Ill. 595; Orr v. U. W. Mut. Life Ins. Co., 86 Ill. 260; Younger v. Loucks, 7 Ill. App. 280; Austin v. Wohler, 5 Ill. App. 300.

Under this arrangement, as was averred and proved, the petitioner began to deliver on June 19,1883, and continued from time to time, according to call, until November, 1884, with only one considerable interval—from October 31,1883, to July 20," 1884.

The copy of the account transcribed from his boobs and filed as an exhibit with the petition shows that the balance due for material delivered in 1883, being §500, was struck and carried forward on the book when he began to deliver in 1884,

But it is not intimated in the petition that any new or distinct arrangement was made between the parties in or for that year. The amount claimed is §9d8.20, as one balance on ail the material delivered. The .striking and carrying forward of the balance on the dealings of 1883 was the act of appellant alone, without the knowledge or consent of Chandler, and, so far as the petition and the exhibit show, is the only circumstance to indicate that he himself understood there were two contracts.

On the hearing, however, being recalled once and again to testify orally in his own behalf, he stated that Chandler saw him in July, 1884, and then made a like request as in June, 1883, and upon the basis of that statement counsel asked leave, after the court had announced its determination to dismiss the petition but before the order was written out, to amend it so as to make it show two distinct contracts. But in his deposition, read in evidence, he stated the fact as set forth in the original petition, and in -his oral testimony, his attention being called to it, said he did not wish to change or modify it; and, further, that Chandler had also seen him in relation to the furnishing of this material on several other occasions not differing from that'of July, 1884, which, yet, are not claimed to have made distinct contracts. There was no apparent occasion for another contract after that of June, 1883. That was intended to be broad enough to embrace all the material for all the improvements contemplated. No separate settle ment was made or asked for that delivered in 1883. Payments were made on account from time to time. The work was not completed. It was necessarily suspended by winter, but when the season permitted and the usual time for holding agricultural fairs was drawing near it was to be resumed; and it was quite natural, after so long a suspension, that Chandler should specially notify the petitioner that calls for lumber were about to be again made. From his own testimony that may have been all that the interview of July, 1884, really amounted to. It dues not appear that either party, at any time before all the lumber was delivered, liad any thought of the lien law in connection with their dealing. Chandler’s credit being then undoubted, petitioner took no care to frame the contract or make delivery with reference to the statutory security. It was doubtless because the court was constrained to find upon all the evidences that there were not two contracts that the proposed amendment was not allowed at that late day to be made. And if there were not, then the petitioner had no lien because the delivery was not completed within a year from its commencement. The petition was dismissed. .

It also appears that Chandler and his wife, by their deed of December 8, 1884, conveyed his interest in the fair grounds, with much other property, real and personal, therein specifically described, to Hays, Wheeler and Frisbie, in trust, to convert the same into money and apply it on account of his indebtedness to the Farmers National Bank of Busline!!, which had suspended payment and was in the hands of a receiver. The petition was amended, first, by making these trustees, and afterward the bank and the receiver also, parties defendant, but these amendments were not made until after six months from the delivery of the last item of the materials furnished. It is claimed that by the contract payment was due upon delivery. Claycomb v. Cecil, 27 Ill. 497; Brady v. Anderson, 24 Ill. 110. So that the right to enforce the lien, if any there had been, was barred by the statute as to these defendants, and that defense was set up in the answers.

The twenty-eighth section of the lien act declares that c‘no creditor shall he allowed to enforce the lien created under the foregoing provisions, as against or to the prejudice of any other creditor or incumbrancer or purchaser, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable,” and as to parties brought in by amendment of the petition, suit is begun only at the time the amend ment is made. Dunphy v. Riddle, 86 Ill. 22; Crowl v. ENagle, 86 Ill. 437; McGrraw v. Bayard, 96 Ill. 146.

But it is insisted on behalf of appellant that neither of these last named defendants is a creditor, incumbrancer or purchaser, within the meaning of the statutes; that the deed referred to is substantially a general assignment, and, being for the benefit of only one creditor and without inventory or bond, is in violation of the act approved Hay 22,1877, concerning volununtary assignments, and therefore void; and that, if not void, the assignees are but naked trustees for the assignor—mere volunteers standing in his shoes, and therefore no more protected than he by this Statute of Limitation; and that the party for whose benefit it was intended, though in fact a creditor, yet, not being a party to the deed, is in no better position.

It has, indeed, been held that the assignee named in the voluntary assignment for the benefit of creditors, is not a iona fide purchaser, and that he represents the assignor and not the creditors in respect to the title of the property assigned. O’Hara v. Jones, 46 Ill. 288, and cases cited; Eames v. Mayo, 6 Ill. App. 334; Milligan v. O’Connor, 19 Ill. App. 493-4, and cases there cited. The effect of these decisions clearly is that the assignee takes subject to all existing liens against the assignor, whether he has notice of them or not. But, subject to them, he does take the legal title and interest of the assignor in the property expressed to be assigned, if the instrument is otherwise valid. Eothing more is here claimed by these defendants. They concede the priority of appellant’s lien so long as he had it, if he ever had it, and that it might have been enforced as against them if suit had been instituted for that purpose in due time; but if they have any interest in the property, although it was once subject to his, it must he as purchasers, incumbrancers or creditors, and now protected against it by the statute for his default. This protection is not limited to purchasers for value. Appellant’s lien, if any he had, was of grace and not of right, in derogation of the common law, and enforceable only in the cases and upon the conditions prescribed by the statute. As in other chancery proceedings, all persons having an interest in the subjectznatter must be made parties in order to be bound by the decree, and parties in interest within the meaning of the act are declared by section 13 to “include all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions of this act.” The apparent legal and equitable claim of these defendants, respectively, was recognized by the appellant in making them parties.

The question, then, is simply whether this deed was void because not in conformity with the requirements of the act referred to, concerning voluntary assignments. It is clearly not in conformity .with those requirements, and the question is, therefore, further reduced to the inquiry whether it is a voluntary assignment, within the meaning of that act. It certainly does not purport to be an assignment of all the property of the grantor, nor for the benefit of all his creditors, but of one only; and the evidence shows it did not, in fact, embrace all his property, nor all that was exempt from execution, though undoubtedly intended to embrace the bulk of it, and compar-atively little, certainly not enough to satisfy the claims of other creditors, was omitted. But it was an absolute assignmeut of all the property therein mentioned, reserving nothing for the use or benefit of the assignor; and it was averred and proved that it was of value insufficient to satisfy the indebtedness on which its proceeds were to be applied; so that nothing could remain to his use or benefit, or which could be controlled or disposed of by him to the hindrance or delay of other creditors.

The act concerning voluntary assignments does not oblige every insolvent debtor to make a general assignment in conformity with its provisions, in order to appropriate his estate, or any specific portion of it, to the payment of a particular debt, nor prevent his preference of a particular creditor, by any means that were previously lawful, excepting only a general assignment for the benefit of creditors. He may confess a judgment, execute a mortgage, legal or equitable, or turn out all or any of his specific property at an agreed, valuation, if done in good faith, for the satisfaction of one debt, though others should be thereby left unprovided for.

Note.—E. D. 0. Haines v. James E. Chandler. Pleasants, J. This was a petition by appellant for a lien for lumber furnished for the erection of the Normal College. The case is substantially like the above case of Haines v. Chandler, and will be disposed of in like manner.

In this case the conveyance or assignment, asuounsel calls it, was absolute in terms, reserving no interest to the grantor. It was not a transfer nor an attempted transfer of all his property, but only of certain items specifically described, and was of value, in all, largely less than the debt on which its proceeds were to be applied. The creditor was a national bank which was itself insolvent and in the hands of a receiver; so that property could not be accepted in payment at any agreed valuation. It must, therefore, be converted into money. A disinterested party should be selected to do it, in order that the creditor might receive its full value and so as much of the debtor’s estate as possible be left for the satisfaction of other claims, and that he might get all the credit to which he would be entitled. The value of the property being less than the amount of the debt, a formal mortgage would be inapplicable and a special trust deed would be appropriate. Other creditors would have no interest in the disposition of it except to see that it should bring its fair value, for there could be no surplus; nor could the creditor receive any benefit from it except by its application to and extinguishment of his honest debt so far as its proceeds would reach.

.Regarded, then, as an equitable mortgage, or a special trust by which specific property of the debtor was devoted to the payment of a particular debt, we think it was not within the act concerning voluntary assignments; nor do we discover in it any provision under which other creditors would be fraudulently hindered or delayed, so as to bring it within the statute of frauds or any other rule of law which would avoid it. The decree will, therefore, be affirmed.,

Decree affirmed.


author: Conger, P. J.

text:
    Mary C. Peddicord v. Security Live Stock Insurance Company.

      Right of Property in a Horse—Trial of—Agreed Statement of Facts— Estoppel—Judgment—Surplusage.

    Upon appeal from a judgment rendered in a trial of the right of property in a horse held under execution, it is held: That a notice which was not on file at the commencement of the trial in the court below, can not be considered under the agreed statement of facts; that the claimant was estopped from setting up a claim to the horse in question; and that the part of the judgment awarding a retorno was surplusage and may be disregarded.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. H. A. Stevens and Stephen French, for appellant.
    Messrs. Gonkling & Grout, for appellee.
   Conger, P. J.

The facts necessary to an understanding of this case are as follows, being principally contained in the following agreed statement of facts, viz.:

“ Agreed statement of facts.”

“It is agreed that this cause shall be tried upon the following statement of facts: The stallion in controversy was out of a mare owned by claimant, and was never sold or given away by her. Since he was a colt, A. M. Peddicord, husband of claimant, and residing with her, has handled and eared -for him ; and as between them the stallion belongs to claimant, acquired by her through other sources than her husband, A. M. Peddicord.

“ In 1885, an agent of the defendant, supposing the horse to belong to A. M. Peddicord, on his application, stating 6Brigham’ to be his horse, procured from defendant a policy of insurance on the horse as the property of A. M. Peddicord, he giving his note for the premium. Judgment was obtained against him on that note. "When the policy was issued A. "M. Peddicord took it home, and his wife, the claimant, saw it; knew how the insurance was taken, made no objections to the defendant or its agent, nor did she have the policy returned. But claimant refused permission to her husband to insure the horse before the policy was issued or applied for. After that the Peddieords came to Springlie'd and lived together here. A. M. Peddicord stood the horse at different places in Sangamon County, and had the exclusive care of him, the proceeds thereof going to the support of the family of the claimant, lío public advertisements were ever made of who was the owner of the horse.

“Execution on this judgment against A. 24. Peddicord was issued and delivered to S. M. Culver, Constable, who went to the house of claimant, who said A. M. Peddicord was absent. The Constable then asked claimant where A. M. Peddicord’s horse was, and she told him in the barn. After looking at the horse, the Constable informed claimant that he had an execution against A. 24. Peddicord, and was going to levy on the horse to satisfy it, and that he must remove the horse. Claimant did not then claim the horse as her property, or object to the levy, any further than that she did not want him taken to any other barn, saying he would he safe where he was. Culver took the horse and held him until taken on a forthcoming bond, when he gave up the horse to A. 24. Peddicord on the delivery of the bond.

“ On August 17tli, the horse was delivered to Culver according to the terms of the bond. After trial in Justice Court, the horse was delivered to A. M. Peddicord, as agent for claimant, under bond, as provided for by statute, until the trial of this cause on appeal in this court. The bonds, execn, tions referred to, and papers and notices on file in this cause} shall he considered in evidence if either party desires, subject to legal objections thereto by the parties.”

The execution mentioned was levied upon the horse, August 3, 1886, and on the 5th of August, 1886, A. 24. Pedd icord, as principal, with appellant, his wife, and one B. S. Graves as sureties, executed to the Constable an ordinary delivery bond, reciting that the execution had been levied upon the horse in question as the property of A. M.. Peddieord.

On the 10th of August, 1886, appellant served a written notice upon the Constable that she claimed the horse as her property.

The notice in the record of date 4th August, 1886, can not be considered, as the bill of exceptions states that it was not •on file at the commencement of the trial in the court below, and to such papers as were on file at the time of the making of the agreement as to facts, we think the words of the agreement, “on file in this cause,” apply.

We think, under these circumstances, the appellant was estopped from setting up a claim to the horse in question. Leeper v. Hersman, 58 Ill. 218.

The part of the judgment awarding a retorno was erroneous but was mere surplusage and may be disregarded without in am^ way interfering with the validity of the judgment.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Wall, J.

text:
    John Q. Chadsey v. James M. Chadsey.

      Administration—Conveyance of Distributive Share—Reservation of Note—Interest.

    The reservation of a certain note, in a conveyance by a legatee of his interest in an estate, is construed by this court to include both principal and interest.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Schuyler County; the Hon. J. C. Bagby, Judge, presiding.

      Mr. Lewis A. Jarman, for appellant.
    Messrs. D. H. Glass and S. B. Montgomery, for appellee.
   Wall, J.

The appellee, who was a legatee of Benjamin Chadsey, deceased, executed a deed of conveyance to the appellant, who was executor as well as a legatee of said estate, by which deed, for the consideration of $4,000, he conveyed to the appellant an undivided one-seventh interest in all the land owned by said Benjamin Chadsey at his death and also transferred to appellant all his, appellee’s, interest in the personal estate of said deceased,‘‘but reserving the right to prove thatacer'ain note of $1,000 was given by him to his said father for $1,000 borrowed money, and collect same from said estate for his own use, said $1,000 in money being charged against him in his father’s book of advancements, and said money and note both being inventoried by the executor of the said estate as advancements to said first party.”

The appellant presented his final report, from which it appeared that there was something over $2,700 unpaid on the distributive share of appellee, but insisted that by reason of the provisions of said conveyance the appellee was entitled to receive only the sum of $1,000, and that appellant had the right to retain the balance for himself. The appellee insisted; however, that he ought to have the full amount of the note referred to and upon which, as shown by the inventory mentioned, tjiere was due of principal and interest the sum of $1,769.76.

The Circuit Court adopted the latter view and gave judgment accordingly. The question is as to the proper construction to be given the reservation just quoted. Certain letters written by the parties to each other are in evidence, and it is proper to consider the whole situation as disclosed by the condition of the estate, including the inventory and the claims held by the estate against the appellee. The expression in this reservation, “ and collect the same from the estate for his own use,” evidently refers to the note given for $1,000 mentioned in the inventory, and is rather inapt if taken in its literal sense. It is a solecism to say that one will collect a note given and signed by himself for his own use. The deed was drawn by the appellant, who was the executor, and this phrase was no doubt used by him to preclude the possibility of his being individually liable for the amount. This idea is suggested in a letter written by him a few days before the deed was made. He wras buying the claim of the appellee against the estate, save and except whatever “ benefit might accrue to him by getting the double charge corrected,” as he expressed it in this letter, and expected to pay him whatever could be thus realized if the estate would justify, but he did not intend to be personally responsible; so this phrase was employed; and upon carefully considering the whole matter it is reasonably clear that the intention was to give appellee the benefit of any reduction obtainable, by making the proof suggested, as to the origin of the note. Had he not sold his interest in the estate the note, if standing as inventoried and unimpeaclied, would have been a set-off pro tanto against his claim as legatee; but if he could annul it, of course it could not be so used, and in assigning his interest he would also assign the benefit to accrue in this respect, if he did not reserve or except it from the operation of the transfer. In so reserving it, we may well suppose he meant to reserve the whole of it, if no terms of limitation appear, and when he thus reserved the right to collect the note, referring to it as being inventoried, it is plain that not only the principal but the accrued interest was intended to be included in the reservation, at least to the amount due as shown by the inventory, $1,769.76.

We are of opinion the conclusion reached by the court below was correct and the judgment will be affirmed.

Judgment affirmed»


text:
    John Evans v. Samuel W. Heaton.

      Mortgages—Foreclosure—Stipulation—Costs.

    In a foreclosure proceeding, it is held: That a stipulation for an early hearing on condition that no receiver should be appointed, and that the possession of the mortgagor should not be disturbed until the time of redemption expired, was a proper one for counsel to make; and that it should have been enforced by the court.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Morgan County; the Hon. C. Epleb, Judge, presiding.
    Mr. Oscab A. DbLettw, for appellant.
    Messrs. Mobbison & Whitlock, for appellee.
   Wall, J.

The appellee obtained a decree of foreclosure of a mortgage against appellant at the May term, 1886. At the next term the report of the master was presented, showing a sale, and a deficiency of $124.45. The appellee presented his affidavit reciting these facts, that the mortgagor was insolvent, and that the premises were subject to the lien of a prior mortgage held by another party, and entered his motion jfor the appointment of a receiver of the premises, pending the period of redemption. The appellant filed counter affidavits to the effect that the land sold for less than its value; that before the decree of foreclosure was entered, at the May term, there was a stipulation entered into by and between the solicitors of the respective parties, that in ease of a decree of foreclosure at that term, there should be no receiver appointed and that the possession of appellant should not he disturbed until the time of redemption expired; that the condition of the case was such that a hearing could not have been had at that term without consent of the appellant and that his solicitor consented to it only upon the faith of said stipulation; that appellant, relying upon this understanding, sowed a part of the land in fall wheat and made other arrangements for the winter, and that the appointment of a receiver would occasion great hardship to him and his family. The court appointed a receiver according to the application of the appellee. The allegation contained in the affidavits filed by appellant as to the stipulation was not contradicted, and we think the court erred in making the appointment. The stipulation was a proper one for counsel to make and a proper one for the court to enforce. But for the stipulation the case could not have been tried at the May term, and it was unjust to permit its violation.

The decree appointing the receiver will be reversed. In other respects the decree will be affirmed'. Appellant will recover cost of appeal.

Affirmed in part and reversed in part.


text:
    John R. Calhoun & Co. v. Stout & Smith.

      Attachment—Set-off—Conflict of Evidence—Practice.

    1. Where the evidence is conflicting this court will not interfere with the verdict of the jury.
    2. In the case presented, it is held: That the jury properly refused to allow by way of set-off an item charged to the plaintiff; and that the objection that the amount of the verdict exceeds that claimed in the affidavit for attachment, can not be first raised in this court.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Green County; the Hon. G. W. Herdhan, Judge, presiding.
    Messrs. Withers & Henshaw, for appellants.

      Mr. James B. Ward, for appellees.
   Pleasants, J.

Appellees sued out a Justice of the Peace attachment against appellants, who reside in St. Louis, upon affidavit of indebtedness amounting to §69, and obtained judgment therefor. On the trial upon appeal the verdict and judgment were for §78.75. The claim was for a commission on the sale of two' hay presses and the evidence shows that fifteen per cent, was the commission agreed on; that these sales aggregated §625, and that plaintiffs retained out of the cash payment §15, leaving a balance for commission of $78.75, the amount of the verdict.

Defendants claimed that these sales were not procured by plaintiffs but by their own traveling agent, and further, that by the agreement plaintiffs were to indorse the notes taken by them for machines sold; that they did not, nor would, indorse those taken for these, and that defendants were thereby subjected to .extra expense. Plaintiffs denied the alleged agreement and showed that the notes taken for these machines were all paid at maturity except one, the payment of which was prevented by garnishment in this suit.

, Upon these disputed questions of fact there was such a conflict of evidence that we can not properly interfere with the finding. Complaint is made that the jury did not allow by way of set-off an item of §17.50 charged to plaintiffs. It does not appear that any account was filed or claim otherwise made of any set-off. In the deposition of John B. Calhoun, speaking of the extra expense incurred because the notes were not indorsed, he says: “I have here an account showing all the

items and aggregating §95.25, which I submit to he hereto attached as ‘Exhibit D.’ I will state that the last item in this exhibit is a merchandise item, which was not embraced in the expense referred to, although Stoat & Smith owe us the amount.” The item as stated is:

And this is all the record contains concerning it. That it was not allowed, or that the verdict was excessive, are not among the grounds alleged for the allowance of a new trial. What the item as stated means, we do not know, and presume the jury did not. Without explanation as to what it was, when it accrued, and whether it was then due, they could hardly do otherwise than ignore it.

As we have stated, the amount of the verdict exceeds that claimed in the affidavit for the attachment, and this also is urged as ground for reversal. The statement of the amount in the affidavit is evidently a mistake. The facts testified to and undisputed show the real amount. Simple arithmetic settles it to a certainty. The verdict, therefore, is not unjust hy the amount of the difference or by any amount, upon the assumption of plaintiffs5 theory, which the jury sustained. This matter was never called to the attention of the court below, or it would have been allowed to be corrected hy amendment of the affidavit. It is too late now to be made available. Utter v. Jaffray, 114 Ill. 470.

No error is specifically pointed out in the instructions. The • j udgment will be affirmed.

Judgment affirmed.


author: Per Quriam.

text:
    The Singer Manufacturing Company v. William A. Price.
    The comparative credibility of the witnesses is a question for the jury.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Jersey County; the Hon. Gr. W. Herman, Judge, presiding.
    Messrs. Warren & Pogue and Taylor & Poll and, for appellants.

      Messrs. Goodbioh & Ferns, for appellee.
   Per Quriam.

In the court below appellee recovered a judgment on the verdict for $39.20, being the amount, with interest, which he had paid the company on its contract to deliver him a specified style of sewing machine, and which he testified they refused to deliver. Their agent, on the contrary, testified that the one plaintiff said they let him have temporarily until they could send the one contracted for, was the one he contracted for. It seems the jury believed the plaintiff. The abstract shows no instruction, nor much else. Of the comparative credibility of the witnesses, it was for the jury to judge.

Judgment affirmed.


author: Per Quriami.

text:
    Benjamin L. T. Bourland v. George L. Gibson et al.

      Action on Ufóte—Replication—Evidence.

    In an action on a promissory note, it is held: That a demurrer to the replication was properly sustained, as the plea showed a defense not met by it; and that the evidence sustains the verdict for the defendant,
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of DeWitt County; the Hon. G. W. Hebdman, Judge, presiding.
    Messrs. Moobe & Warner, for appellant.
    Mr. James S. Ewing, for appellees.
   Per Quriami.

This case was here last at the May term, 1886 (21 Ill. App. 43). Ho statement of the case is deemed necessary. Since it was remanded the plaintiff filed an additional replication setting np that he had not refused to deliver the deed, to which the court properly sustained a demurrer. The plea'showed a defense that the note was given for the consideration of the deed, which was not delivered, not met by the replication.

The issue of fact was then submitted to the jury and was found for the defendant. There was sufficient evidence to support the verdict, and this is the only point now left for consideration. The judgment will be affirmed.

Judgment affirmed.


author: Congee, P. J.

text:
    Doretta Behrens v. William H. Hoxie et al.

      Party Wall—Simple Contract—Agreement to Pag for Use—Mights of Grantee of Builder.

    1. A simple contract between the owners of adjoining lots, providing for the erection of a party wall on the line by one of them, operates only as a license.
    2. In the case presented, it is held: That the wall in question at once became and remained the several property of the owner of each half, qualified by the easement of support; and that the agreement by the adjoining owner to pay for the use of the wall, when used by him, does not pass to the grantee of the builder.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Champaign County; the Hon. J. F. Hughes, Judge, presiding.
    Mr, Feaetcis M. Weight, for appellant,
    Mr. M. W. Mathews, for appellees.
   Congee, P. J.

On the 3d day of March, 1873, appellee Hoxie and one Hessel, being adjacent land owners, entered into the following agreement:

“This agreement made this 3d day of March, 1873, between William Hoxie, of the first part, and Gustavos E. Hessel, of the second part, both of the County of Champaign and State of Illinois, witnesseth: That whereas the said Hoxie is the

owner of lot Ho. 12, and said Hessel is the owner of lot Ho. 11, both in Illinois Central Railroad Company’s second addition to Urbana, now in the city of Champaign, in said county, and said Hoxie has at his own entire cost and expense, and with the consent and agreement of said Hessel, erected the west wall of a brick building on said lot 12, the center of which wall is upon the line between said lots, so that the west half of said wall is on said lot 11, and is intended for a partition wall, said wall is ninety-seven feet deep by sixteen inches at the base and twelve inches above the base or basement. How it is hereby agreed by and between said parties that 'whenever said Hessel, his grantees, heirs or assigns, or other persons owning or controlling said lot 11, shall desire, or attempt, to build or cause to be erected on said lot 11, a building, so as to connect with and use said west wall as and for a partition wall, he, or they, shall first pay, or cause to be paid, to said Hoxie, the full one-half of the value of said west wall on said lot 11; that the covenants of this agreement shall run with the said lot 11, and are intended to bind said Hessel and whoever may own said lot 11, when said partition wall shall be used as such. And said Hessel agrees in conveying said lot 11, should he do so to any person or persons, to require in his deed for said lot 11, the grantee or grantees thereof to keep and perform this agreement and pay for one-half of said west wall as aforesaid.

(Signed) “William Henry Hoxie,
“Gustayüs E. Hessel.”

Doretta Behrens afterward became the owner of lot 12 by mesne conveyances, thereby acquiring the title of Hoxie, and appellee Ahrens became the owner of lot 11 by deed from the heirs of Hessel.

Appellee, desiring to erect a building on lot 11, and make use therein of the party wall, after an unsuccessful effort to obtain appellant’s consent to fix the amcmnt he should pay for said wall by arbitration, filed a bill, which, after being amended, made both Mrs. Behrens and Hoxie defendants, representing that they were both claiming for the value of one-half the wall, .and asking that they interplead, and that the court might determine which one of them was entitled to said money, and for other relief. Answers were filed, evidence heard, and the Circuit Court decreed that appellee Ahrens pay to appellee Hoxie 8125.92, being the one-half of the value of the party wall; from which decree appellant appeals. It would seem that the case of Gibson v. Holden, 115 Ill. 199, governs the one at bar. But it is insisted with great earnestness by counsel for appellant, that this case falls within the exception or qualification contained in the decision of that case, in the following language:

“ Cases, therefore, where parties are, by the deed under which they take title, given one-half of a wall as a party wall, when or upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a wall for himself, resting one-half of it on each lot, and reserving the privilege of thereafter purchasing one-half the wall as a party wall, are not analogous. In all such cases the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing by every conveyance of it, until a severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases, until the payment is made, and so necessarily it is, constructively, a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall.”

Whether the words, a in all such cases,” refer to the first or second class of cases alluded to, is not entirely clear, hut we do not think the present case falls within either. ¡Neither Hessel nor his grantee are to take title to one-half of the wall, when or upon condition of making payment therefor, nor does he reserve to himself and his grantees the privilege of thereafter purchasing one-half of the wall as a party wall. The agreement declares that the wall “is intended for a partition wall.” When? At the time of executing the agreement. Therefore the wall at once became and remained the several property of the owner of each half, qualified by the easement of support. Ingalls v. Plamondon, 75 Ill. 123.

It is not the title to one-half the wall for which Hessel or his grantees are to pay, but the use of it. When he or his grantees shall desire to build on lot 11, “ so as to connect with, and nsesaid west wall, he or they shall first pay or cause tobe paid to said Hoxie the full one-half of the value of said west wall.”

That Hoxie could have no title to the part of the wall resting upon Hessel’s lot is clear, because the agreement between them being but a simple contract would not convey title to the realty upon which it stood, but could operate only in law as a license. Joy v. Boston Savings Bank, 115 Mass. 60.

When Hoxie conveyed to Mrs. Behrens, he conveyed all his interest in lot 12, and, as appurtenant thereto, in the party wall. For this interest she paid and got all that she paid for. Ho reason is perceived why she should also receive payment for some portion of the cost of building the party wall.

Hessel agreed for himself, his heirs, assigns or grantees, that whenever he, or they, should desire to make use of the wall thus erected upon his land at the expense of Hoxie, he, Hoxie, should be repaid the amount thus expended. It was a personal agreement with Hoxie, a chose in action which was due, or might be due him.

It was in no way attached to the Hoxie lot. The money to be paid was not for anything done upon or to the Hoxie lot, but for something which had been done upon the Hessel lot, and it no more passed to Hoxie’s grantee than it would if Hoxie had built a house upon the Hessel lot, using the party wail.

The agreement to pay was in no sense for the benefit of the . Hoxie lot, but solely for the benefit of Hoxie, and therefore did not pass to the grantees of his lot. Cole v. Hughes, 54 N. Y. 444.

The decree of the Circuit Court will be affirmed.

Decree affinned.


author: Gbeeit, P. J.

text:
    C. D. Cook et al. v. Adolphus Miller.

      Injunctions—Irreparable Injury—Tax 'Deed—Bights of Mortgagee— Former Adjudication as to Mortgagor—Evidence.
    1. To justify an injunction as a preventive remedy the injury in question must he real and likely to occur. The relief should not be extended beyond what is necessary for the protection of the complainant’s rights.

      2. Upon a bill filed by the mortgagee of certain premises to enjoin the issue of a tax deed, it is held: That the issue of such deed would not “ take away and destroy” the security of the complainant as alleged; that the court improperly excluded evidence touching other security; and that the decree for the complainant works injustice, the holder of the certificate of sale being entitled to a deed, at least as against the mortgagor who is convcluded by a former adjudication.
    [Opinion filed April 20, 1888.]
    Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    On July 15, 1885, Miller filed his bill against Cook and Tanner, alleging complainant had an interest in 16Of feet off of the west end of lot 48, block 7, in Mt. Vernon, Illinois, as mortgagee of D. 0. Warren, by mortgage dated May 4, 1881, recorded May 6, 1881, given to secure $3,000 loaned to Warren, still due and owing to complainant; that he relies upon said real estate for security for the payment thereof, the value of said real estate being about $3,000; that at the date of the mortgage, taxes were due and liens upon said premises fertile years 1875 to 1880, both inclusive, to the amount of 8145.97, which were fully paid by Warren in 1881, and that Warren has paid the taxes for the years subsequent thereto, yet the collector failed' to discharge the same of record, but allowed the same to remain an apparent charge upon said premises, and the same were carried forward from year to year against said premises, for the amount paid by Warren, and for the amount also of an illegal and unconstitutional tax assessed for county purposes, until the Hay tgrm, 1883, of the Jefferson County Court, when the collector obtained judgment against said premises for §228.56, which sum included the amount of taxes so paid by Warren, the said illegal and nnconstitutional tax amounting to one dollar, and legal taxes for 1881 and 1882, amounting, with legal penalties, interest and costs, to §41.51, which latter sum was tendered to the collector before tax sale. That thereafter, at the time appointed by law to sell lands for taxes, the collector sold said premises to said Cook for said sum of $228.56 on June 8, 1883; all of which proceedings to obtain said judgment and make such sale were unknown to complainant, who made no appearance in said County Court. That Cook was fully notified by Warren, before the sale to him, of the payment of taxes by Warren and-of the illegal character of the judgment, and that the same would be contested; that notice is served on complainant by Cook that he will take out a tax deed for said premises under said sale and is about to apply for, and his co-defendant Tanner, County Clerk of said county is about to issue and deliver to Cook a tax deed therefor, and thus to take away and destroy the interest complainant lias in said premises, amounting to $3,000, and destroy the security complainant, has for the payment of his said note. Offers to pay Cook or collector^ as the court shall direct, all lawful taxes, penalties, interest and costs now unpaid upon said premises as well as all taxes thereon paid by Cook since his purchase; prays that an account be taken of the amount to he so paid, and for a perpetual injunction restraining Cook, his agents or assigns, from taking out a tax deed for said premises, and restraining Tanner or his deputy from issuing any tax deed for said premises to any person, and that said sale be declared void. There was a prayer for general relief, but it is not claimed on behalf of appellee that the scope and purpose of the‘bill was to obtain other relief than the perpetual injunction prayed for. The answer of defendants admits the purchase of premises by Cook; denies taxes had been paid at date of purchase as alleged, or that any unconstitutional tax was levied or that Warren notified Cook as alleged; avers said mortgage to Hiller included other valuable improved real estate in Mt. Vernon worth $5,000, and ample security for Miller’s debt; that the lot sold Cook is occupied and Miller not in possession; that Miller is estopped from bringing said bill by a former adjudication of this case in the suit brought by D. C Warren against Cook decided at the May term, 1885, of said Circuit Court and affirmed at the November term, 1885, of the Supreme Court; that this bill is, in fact, a second bill by Warren in the name of Miller, and Miller is in no way interested in the present litigation, which is the same, in' interest, with the former litigation between Warren and Cook et al. in his said hill brought at said May term, 1885, of this court, which was there dismissed by this court, and that decision affirmed by the Supreme Court. That, on April 28, 18o8, Warren gave a mortgage for $3,000 on valuable farming land in said county to Miller to secure him against loss of security arising out of this litigation ; that Miller was notified by Cook at the time and in the manner required by law of his intention to apply for a tax deed, and when the time for redemption would expire, and Miller having failed to redeem from said tax sale is estopped from so doing; that the bill is without equity; and concludes with the usual general denial of allegations in the bill, not admitted or specifically denied; to this answer a general replication was filed and the cause was heard upon bill, answer, replication and evidence in open court. The court, in its decree, finds the law and equity to be with the complainant, finds the lot in controversy was sold to Cook by the County Collector June 8, 1883, for taxes, penalties, interest and costs assessed, and extended for the years 1875 to 1882, both inclusive, against said lot, amounting to $228.56; that the sale was made by virtue of a judgment in the County Court, rendered May 29, 1883, and the clerk of said court at the time of said sale issued his certificate to Cook, who was about to apply to defendant Tanner as County Clerk for tax deed at the time injunction was issued; that on May 2, 1881, the taxes for 1875 to I860, both inclusive, amounting to $115.97, were paid to the County Clerk and his tax receipt given therefor, and he had failed to mark said taxes paid, and the same remained charged against said lot, and said sum of $145.97, so remaining charged, entered into and formed part of said judgment; that an unconstitutional tax amounting to $1.07 for 1882 was levied upon said ot and formed part of said judgment; that $100.25 is equitably due Cook on account of his said purchase; that Hiller has an interest in said property as mortgagee of Warren; that said mortgage is for more than $3,000 and unpaid; that complainant relies upon the premises in question for his security for payment of said mortgage and has the right to question the legality of said tax proceedings; that said judgment, the sale thereunder to Cook, and the certificate of purchase issued to him, are legal and void as against Miller; decrees if complainant first pay to Cook, or tender him, or his attorney for him, on or before January 10,1887, said sum of $100.25 so found due him, thereupon said judgment for taxes and sale to defendan thereunder and said certificate of purchase to Cook are declared null and void; that the injunction issued he made perpetual against defendants, restraining Cook or his agents from applying for or receiving and restraining Tanner, as County Clerk, and his successors and the agents or representatives of both defendants, from taking any tax deed under said judgment and sale, and that Cook pay the costs. From this decree defendants appeal and bring the record here. It appears also by evidence in the record and is not denied, that in the mortgage dated May 2, 1881, the property in question and four other lots in Mt. Vernon were mortgaged by Warren, the owner in fee. The value of these four lots was not attempted to be shown by complainant but on behalf of defendants there was evidence showing their reasonable cash value to be $3,000. Some witnesses declined to fix a price they would bring at forced sale for cash and one witness testified he thought at sucl sale they might not bring half their value. It is not alleged or claimed by Miller that Warren is insolvent, or unwilling or unable to pay the debt secured by said mortgage. It was also admitted on behalf of Miller, at the hearing, that before the filing of his bill, Warren had filed a bill in said court agains: Cook and Tanner to enjoin Cook from taking out a tax deed for the property in controversy here and the same tax deed Miller prayed to have enjoined in this case; that the same allegations of payment of taxes by Warren in 1881 and unconstitutionality of the pauper tax for 1882 appeared in both bills; that said cause of Warren v. Cook et al. was determined against Warren in said court on the ground he had appeared at the May term, 1883, of the County Court, and was bound by the judgment there, and that such decision of the Circuit Court was, on appeal to the Supreme Court, affirmed. Also, it is shown by the record of the proceedings of the County Court at said May term, 1883, Warren appeared and filed exceptions to the entry of any judgment against the said premises, and afterward, and on the same day, again appeared, withdrew said exceptions and consented to the rendition of the judgment, under and by virtue of which said tax sale was ordered and made. It is also admitted Miller tendered Cook §100.25 before January 10,18^7, and the tender was refused.
    Mr. C. H. Buetoe, for appellants.
    This case has been decided by the Supreme Court, under the style of Warren v. Cook, 116 Ill. 199. Miller, the appellee in this cause, is estopped by that decision. Cooper v. Corbin, 105 Ill. 224; Biggin v. The People, 106 Ill. 270; Newberry v. Blatchford, 106 Ill. 584; Jenkins v. International Bank, 111 Ill. 462.
    The prayer of the bill is to remove a cloud upon the title. Such a bill lies in only two cases in this State: 1st. Where the complainant is in possession; 2d. When he claims to be the owner and the lands are unimproved and vacant. Gage v. Abbott, 99 Ill. 366; Gage v. Griffin, 103 Ill. 41; Gould et al. v. Sternberg, 105 Ill. 488.
    It is claimed that there is a small unconstitutional tax involved in the tax of the year 1882, and for that reason this court will take jurisdiction. An injunction will not be granted to enjoin the collection of a void tax except in rare cases where an irreparable injury will be done. Cook County v. C., B. & Q. R. R. Co., 35 Ill. 460; Munson v. Miller, 66 Ill. 380; Porter et al. v. R. R. I. & St. L. R. R. Co., 76 Ill. 596.

      A court of equity has no jurisdiction of this case and the bill should have been dismissed. In Hamilton v. Quimby et al., 46 Ill. 98, the court say: “ A court of equity will not inquire into or determine whether a tax sale is valid, merely to determine whether it is a cloud on the legal title, and to enjoin the holder from asserting it. It is the province of a court of law to try its validity. If valid, it constitutes a legal and not an equitable right. If worthless, a complete defense may be made in the forum in which we must leave the parties to litigate that title. Springer v. Rosette et al., 47 Ill. 224.
    Hr. C. H. Paitoit, for appellee.
    A tax purchaser can not have a tax title by peacemcal. The proceedings are in rem and must be good against the land as against the whole world and every possible interest in it, or it is good for nothing. Blackwell on Tax Titles, 584 (3d Ed.) Oh. 38, title: “Of the title which passes to the purchaser at a tax sale;” Atkins v. Hinman, 2 Gil. 449; Dunlap v. Gallatin Co., 15 Ill. 7; Cooper v. Corbin, 105 Ill. 225; Parker v. Baxter, 2 Gray, 185; Jackson v. Babcock, 16 N. Y. 246.
    Appellee, as mortgagee, had the right to pay the taxes to protect the lien of his mortgage from being cut off by the tax sale, which, if legal, overrides all other liens. Cooley on Taxation (2d Ed.), 504.
    It must, therefore, follow that appellee has a right to complain of the attempt by appellant to cut off and destroy his valuable interest in the lot in question by means of the illegal tax proceedings shown in this record and that the decree below was right. Blackwell on Tax Titles, 652.
    In this case the court below allowed to the purchaser much more than he had “properly paid/” that is, than was due with legal interest, penalties and costs; for appellant had not paid, and does not claim to have paid, any taxes on this lot since the sale in 1883. The amount due from appellee, or his mortgagor, D. C. Warren, (even including the illegal part of the “county tax,”) was only 641.51, and 100 per cent, penalty added would only have made 683.02,-and the interest and costs could not have exceeded §2, and yet the court allowed, and appellee tendered to appellant, §100.25, being about §15 moie than was due. This was done to make sure of doing full equity to appellant and leave him no possible ground for complaint. He had his remedy against the collector for the wrongful sale for the taxes which were not delinquent,, to have his money reimbursed under sections 214 or 268 of the revenue law.
    Appellee was not a party to the suit of Warren v. Cook, and hence not bound by the decree. Town of Lyons v. Cooledge, 89 Ill. 530; Mail v. Maxwell, 107 Ill. 554; Halman v. Gill, 107 Ill. 467; Scates v. King, 110 Ill. 456; Miller v. McManis, 57 Ill. 126.
    The objections to the evidence amounts to nothing because in chancery cases the chancellor is presumed to decide upon the legitimate evidence and to reject the irrelevant testimony. Stone v. Wood, 85 Ill. 609.
   Gbeeit, P. J.

The pleadings and decree are quite fully set forth in the foregoing statement, and the question to be decided is whether, under the pleadings and evidence in the record, the findings and decree ought to be affirmed by this court. If counsel for appellee correctly assumes the bill filed by him in this cause, is not a bill to remove a cloud upon the title of appellee or to restrain Cook from obtaining a title which might become a cloud thereon, and the relief prayed for is based wholly upon the ground of irreparable injury, or, as stated in the bill, that the issuing of a tax deed for said premises to Cook “ will take away and destroy the interest complainant has in said premises, and destroy the security complainant has for the payment of his said noteis the decree right, and ought we to affirm it? To justify the application of injunction as a preventive remedy, the injury in question must be likely to occur unless an injunction is decreed, and without it, real injury to the complainant, invoking such aid, is to be apprehended; nor should relief by injunction be extended beyond what is necessary for the protection of complainant’s rights. Hilliard on Injunction, “84, Sec. 7; 3 Wait’s Ac. and Def. 685.

These rales under the facts proven preclude appellee from obtaining the injunction prayed for and decreed. He alleges in his bill and was bound to prove that the issuing of a tax deed conveying said premises to Cook as purchaser at tax sale, will take away and destroy Miller’s interest therein and destroy the security he has for the payment of the debt Warren owes him. This is the irreparable injury in question, to prevent which an injunction was prayed for, and the evidence does not establish the truth of those material allegations. If Miller is not concluded by the judgment of the Supreme Court in the case of “ Warren v. Cook et al.,” and a tax deed to a purchaser at said sale would be void for the causes alleged in the bill, we do not perceive from the evidence that Miller would sufíer the irreparable injury alleged in the hill and relied on by counsel by the issuing said tax deed to Cook, his interest in said premises as mortgagee could not be thus destroyed, and he would still retain the security of the lien upon said premises, given him by the mortgage for the payment of said debt, nor would appellee he entitled to an affirmance of the decree, if it even appeared by the record he would be deprived of ail interest in the lot- in question if Cook was permitted to take his tax deed therefor. His security for the payment of the mortgage debt would not be thus destroyed. It appears in evidence, although not disclosed in the bill, that four other lots are included in said mortgage and furnish an additional security relied on by Mil" ler for the payment of the debt. The cash value of these lots is estimated by several witnesses at $3,000, and whether they will bring that price at a forced sale, or half as much, the fact is undisputed, they are additional security upon which appellee relies. Furthermore, appellant offered to prove at the hearing that appellee held a mortgage on one hundred acres of farm land in Jefferson County as further security for said debt, in case he should lose his security upon the lot in question. This evidence was material and competent, but the court refused to admit it and erred in so doing. FTor does it appear that Warren is insolvent or unwilling or nnable to pay Ms debt, or that Miller will be obhged to commence pro, cecdings to collect the same or to foreclose his mortgage. In short, no irreparable injury, as alleged, was proven at the hearing, and no cause made requiring preventive relief by injunction. The decree appealed from is also inequitable to Cook, whose rights in the premises we are not at liberty to disregard. He purchased the property at a tax sale, regular in all respects, made under a judgment assented to by Warren, the owner in fee, and as between him and Warren his title as such purchaser is fixed and forever determined by the jxrdgment of the Supreme Court. If this decree is affirmed Cook loses his title and all rights as such purchaser even as against Warren, the fruits of a protracted litigation are taken away, and Warren can, by paying off the mortgage debt, hold the property in question in defiance of the judgment against him rendered by the court of last resort, and this mischief and injustice to appellant accrues, as has been seen, by the rendition of a decree not necessary for the protection of Miller against the injury alleged. Such a result would be manifestly unjust to appellant. And the decree rendering it possible ought not to be affirmed. Hilliard on Injunctions, 22, Sec. 39.

We have not discussed or alluded to several questions which the learned counsel on behalf of the respective parties have presented for our consideration, touching the laches of appellee, notice to appellant of the illegality of the judgment against the premises rendered in the County Court, the doctrine of res judicata, and rule as to marshaling assets, being satisfied that the latter question is not properly before us in this case, and if the theory of appellee on the others is correct, yet, for the reasons given, appellee has not shown himself entitled to the relief prayed, and the decree rendered would work injustice and be against equity. Whether Miller may be entitled to any relief under a bill properly framed to protect his own interest as mortgagee we do not now decide, but confine the views expressed to the object of the bill, as shown by its allegations, which was to prevent Cook from taking out a tax deed even as against Warren, when it clearly appears, as against him, he is entitled to such deed.

The decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Per Gxvriam.

text:
    Fourth District
    —August Term, 1887.
    Chicago & Alton Railroad Company v. John Stites.

      Railroads—Personal Injury—Defective Trach—Notice—Insufficiency of Evidence.

    In an action by a yard switchman against a railroad company to recover damages ¡or a personal injury, this court, upon a second appeal, again reverses the judgment, the evidence being insufficient to support the verdict for the plaintiff.
    [Opinion filed April 20, 1888.]
    Appeal from the Circuit Court of St. Clair County.
    Messrs. Luke H. Hite and Brown & Kirby, for appellant.
    Messrs. K. A. Halbert and Flannigan & Canby, for appellee.
   Per Gxvriam.

This case was before us at the August tern^ 1SS6, when we reversed the judgment for insufficient evidence appearing in the record to entitle the plaintiff to recover, and remanded the cause for a new trial. The case is reported in 20 Ill. App. 648, where will be found a sufficient statement of the facts. The appellee, upon the case being remanded, amended his declaration by averring that tlie track, track rails and switch were defective. In the former case the negligence alleged was confined to the defective condition of the switch alone.

On the re-trial testimony was introduced tending to show that a lip had formed upon the end of the rail which caused the engine to jump from tlie main to the side-track. It would serve no useful purpose for ns to again notice the evidence in detail, for after a careful examination of all of it, and giving it the best consideration our ability will allow, we are constrained to say that it is as entirely insufficient to support tlie present verdict in favor of appellee as it was in the former case. Even if a lip existed that made the track dangerous, there is the same lack of proof of notice to the company of the defect as in the former case. We adhere to what we then said as to the law applicable to the case, and applying it to the facts as we find them, in our opinion no right of recovery is shown, and the judgment will be reversed.

Judgment reversed.


author: Per Ouriam.

text:
    Anson Z. Baits v. The People

      Practice—Sill of Exceptions—When not Part of Record—Conspiracy to Befraud County—Indictment—Sufficiency of—Wolf Scalps—Bounty.

    '. A bill of exceptions signed after the term, no time having been asked or obtained within which to present a bill of exceptions, is not a part of the record and can not be so considered on error.
    2. In a criminal prosecution charging a conspiracy to defraud a county by obtaining bounties for wolf scalps taken from wolves not killed within the county, this court holds that the indictment is sufficient.
    [Opinion filed April 20, 1888.]

      In error to the Circuit Court of Fayette County; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. F. M. G-uihn, for plaintiff,
    Mr. J. M. Albert, for defendant.
   Per Ouriam.

The plaintiff in error was indicted jointly with one W. FT. FTordike for a conspiracy to defraud the County of Fayette. It appears that the County Board had passed a resolution offering a bounty for the killing of wolves within the county, and upon any party presenting wolf scalps to the County Clerk and making affidavit the wolf from which the scalp ivas taken was killed in said county within sixty days prior to the time of presentation should be entitled to the ■ bounty. A motion was made to quash the indictment which was overruled by the court, and its action in this regard is here assigned as error.

We have carefully examined the indictment and think it sufficient. It, in terms sufficiently apt, charges the defendants with conspiring to defraud the county out of such bounty by falsely representing and swearing that the scalps they presented to the County Clerk were taken from wolves killed by them in the locality and within the time limited in the order, and the overt acts charged are that they presented scalps and obtained the bounty when wolves were not killed within said county.

We are satisfied no error was committed in putting the defendant upon trial upon the indictment. The principal argument made at the bar by counsel for plaintiff in error is in support of the error assigned, that the verdict is not supported by the evidence.

In answer to this the State’s Attorney insists that there is no bill of exceptions in the record that can be considered by the court, and calls our attention to the fact that the term of the Circuit Court at which the defendant was convicted adjourned for the term on the 28th day of September, without the defendant asking for or obtaining time to present a bill of exceptions in vacation, and that the bill was signed and filed on the 6th day of October. Upon examining the record we find the fact to be as claimed by the people. No order appears allowing further time to present a bill of exceptions and it affirmatively appears by the certificate of the Judge that it was signed on the 6th day of October. This being so it became no part of the record and we are precluded by the practice in this State from examining such assignment of error. It was so held in Hand v. Miller, 24 Ill. 636, and in many subsequent eases not necessary here to cite. No objection is taken to the record proper other than that to the indictment which we have noticed. Rejecting the bill of exceptions, as we must do, no error is apparent and the judgment must be affirmed.

Judgment affirmed.


author: Wilkin, J.

text:
    Gerhard W. Garrels, Impleaded with George W. Cone, v. Hugh R. Morton et al.

      Trust Deed—Foreclosure—Agency—Extent of Authority—Payment.

    1. One who deals with an agent is bound to know the extent of his authority.
    2. The authority of an agent who has made a loan, to receive payment, may be inferred from his having made the loan and retained the securities.
    3. The burden of proof is on the debtor to show that the securities were in the custody of the agent at time of payment. Neither the collection of other securities, nor of the interest on the debt in question, _is sufficient to raise an implied authority in the agent to receive payment.
    [Opinion filed May 1, 1888.]
    Appeal from the Circuit Court of Marion County; the Hon. Amos Watts, Judge, presiding.
    Messrs. W. C. Kueffeer and T. E. Merritt, for appellant.

      Hr. Hbniíy O. Goobnow, for appellees.
   Wilkin, J.

The decree presented by this record is in all respects like that reversed at our August term, 1886. The contention is also the same. The answer of appellee lias been so amended as to present the correct theory of his defense and some additional proof introduced on the last hearing, hut the facts are not materially changed. The statement of the case found in Yol. 21 of Appellate Court reports beginning on jiage 381 will therefore be sufficient for the purpose of this opinion.

Counsel for appellee seem to understand our former opinion as holding the law to be with him on a proper state of pleading, but it was not so intended and we fail to find anything in it to justify such an inference. The averments and admissions of the answer in the former record precluded the consideration of the merits of the case on the theory of the defense and the reversal was upon that ground alone. The trust deed not having been assigned and no notice of the transfer of the notes having been given, the deed only passed to appellant as an incident to the notes, and the assignee took it subject to all equities existing between the mortgagor or his grantees, and the mortgagee, and therefore any payment to F. Byhiner & Company and valid agreement by them with Myer or his grantee, Horton, to release the forty-acre tract in question, would be available against appellee Garrels, notwithstanding^ he is an innocent purchaser of the notes before maturity. Jones on Mortgages, Sec. 817 and 820, and cases cited; Towner v. McClelland, 110 Ill. 551.

If, therefore, the alleged payment and agreement to release appellee’s land can be held binding as against F. Byhiner & Company, the appellant is equally hound and the decree is. right.

There is no pretense that the payment or agreement was made to and with the firm, but the allegation and proof is that the entire transaction was with George W. Gone, their agent. Neither is it claimed by appellee that the firm of F. Byhiner & Company had any notice of such payment or contract, that they in any way ratified the same, or received the proceeds of the payment Hence, in order to bind them by that transaction, either as a payment on the mortgage debt or an agreement to discharge the lien of the trust deed, the proof must establish, first, that a payment was made to Cone; second, that he agreed in consideration thereof to discharge appellee’s land; and third, that he was the agent of Ryhiner & Company authorized to receive the payment and make the contract. The evidence is very unsatisfactory and conflicting on both the first and second of the above propositions; but giving appellee the benefit of the assumption that both are sustained by the proof, the question still remains, is the agency and authority of Cone established. There is no direct proof of agency except that Cone himself testifies that he had authority to receive the interest but not the principal. Appellee’s proof is all circumstantial, consisting of proof of the facts that Cone negotiated the loan for which the notes and trust deed were executed; that about the time of the payment and agreement insisted upon he did receive payment of and procure a discharge of another mortgage held by them on lands of Myer; that he took this §1,200 and loaned it, taking notes payable to F. Ryhiner & Company. Cone, however, swears that the blank notes payable to the firm were used in loaning the money for Myer as a matter of preference in form and that they were immediately assigned to Myer, and there is no dispute as to the fact that Ryhiner & Company never received any benefit whatever from the money.

Mor is there any pretense of proof, either direct or circumstantial, from which it can be inferred that either the notes or trust deed were in the hands of Cone at that or any time, or that appellee so understood. On the contrary, his testimony shows clearly that he knew they were held by some one else from whom the release was to be obtained. Admitting that the proof is sufficient to establish the relation of principal and agent between Ryhiner & Company and Cone, yet, when the rules of law are applied to the facts on the question of his authority to receive payment and bind his principal by his contract to release the land, the defense wholly fails. The authority of an agent to receive payment may be inferred from his having made the loan and retained the securities, but this inference is foupded on his custody of the notes and ceases when they are withdrawn.

The bui’den of proof is on the debtor to show that the securities were in the custody of the agent at the time of the payment. Williams v. Walker, 2 Sandf. Ch. 225, and authorities cited; Smith v. Kidd, 68 N. Y. 130.

The collection of other securities or even a part of the existing debt is not sufficient to raise an implied authority in the agent to receive payment. Smith v. Kidd, supra, 28 N. J. Eq. 13.

Express authority to collect interest Is not sufficient to authorize the. collection of the principal. Same cases.

The rule has been strictly adhered to in all the adjudged cases that the possession of the securities by the agent is the indispensable evidence of his authority to collect the principal, and in Smith v. Kidd, supra, it is said any other principle would be dangerous in the extreme. Jones on Mortgages, See. 964.

Ko one will deny that a payment to an agent authorized to receive it is good, and that such authority may be shown by express contract, usage of trade, or the particular mode of dealing between parties; but this principle is not in conflict with the above authorities nor does the proof in this case bring it within this rule. It is a familiar principle that a person dealing with an agent is bound to know his authority. If hardship or loss falls upon appellee it results from his failure to do so in his dealing with Cone. We have examined this record carefully an'd considered the decree in every view of the law presented by the learned counsel for appellee. We have treated it precisely as though it were a decree between K,y inner & Company and appellee, and we are unable to find authority of law under the most favorable view of the facts, to sustain it. That our judgment may be reviewed by the Supreme Court without the delay of another hearing below, the decree will be reversed and the case remanded with directions to the Circuit Court to render a decree of foreclosure against all of the land included in the trust deed not exempting that held by appellee Morton.

lieversed and remanded.


author: Per Curiam.

text:
    East St. Louis & Carondelet Railway Company v. Samuel Frazier.

      Personal Injuries — Instructions—Conflict of Evidence—Question for Jury—Damages— Whether Excessive.
    1. It is proper to refuse an instruction which correctly states rules of law applicable to the case, when such rules are stated in another instruction given at the instance of the same party.
    2. Where the evidence is conflicting and three juries have found the facts the same way, this court will not interfere upon a mere question of fact, unless convinced that the verdict is the result of passion or prejudice.
    8. Where pain and suffering are recognized elements in the assessment of damages for personal injuries, such assessment is within the sound judgment of the jury under the instructions of the court.
    4. In the case presented, it is held: That nothing appears to show that the amount of the damages was not fixed by the jury upon a fair consideration of the testimony; and that the verdict for $6,000 is not so excessive as to require a reversal.
    [Opinion filed May 5, 1888.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.
    Mr. A. S. Wilderman, for appellant.
    The damages awarded by the jury in this case are so excessive as to induce a most violent presumption that the verdict is the result of passion, prejudice or a total miscon. ception of the case. Loewenthal v. Strong, 90 Ill. 74; N. L. Packet Co. v. Binninger, 70 Ill. 571; C. R. I. & P. Ry. Co. v. Payzant, 87 Ill. 125; McLimans v. City of Lancaster, 63 Wis. 596; C., B. & Q. R. R. Co. v. Avery, 10 Ill. App. 210; C. West. Div. Ry. Co. v. Hughes, 87 Ill. 94; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; Kolb v. O’Brien, 86 Ill. 210; C., B. & Q. R. R. Co. v. Dunn, 52 Ill. 451; I. C. R. R. Co. v. Welch, 52 Ill. 183; City of Chicago v. Kelly, 69 Ill. 475; City of Chicago v. Langlass, 52 Ill. 256; City of Decatur v. Fischer, 52 Ill. 407; City of Elgin v. French, 86 Ill. 498; City of Ottawa v. Sweely, 65 Ill. 434; City of Peru v. French, 55 Ill. 317; City of Chicago v. Jones, 66 Ill. 349; City of Chicago v. Martin, 49 Ill. 241; C. R. I. & P. R. R. Co. v McKean, 40 Ill. 218.
    Mr. M. Millaed, for appellee.
    Courts do not undertake to put an exact value upon a leg or an arm of a person who is disabled, or the pain he endures, or the difference between being a cripple and a man with limbs unimpaired. The result should stand, unless the court below and the jury have blundered, or committed an act of injustice, without question. Where the testimony is all heard, the trial fair, the instructions full, and the ease is well considered, there should be no reversal by an appellate court.
    In C. & A. R. v. Wilson, 63 Ill. 167, where a music teacher lost his hand, §8,000 was not regarded as excessive.
    In Ill. Cent. v. Parks, 88 Ill. 373, §8,958 was not considered too much for an injury to" a lady’s spine.
    In C. & A. R. v. Murray, 71 Ill. 601, a little girl seven years old lost her leg and two fingers, and the court allowed a verdict of §8,100 to stand.
    In T. W. & W. Ry. v. Fredericks, 71 Ill. 294, a brakeman received §5,000 for a mere “stiffness” in his hand.
    In C. & E. R. Co. v. Holland, 18 Ill. App. 418, it was held §25,000 was not excessive for a serious injury to the spine.
    These are cases where verdicts were sustained, and they fully justified the action of the lower court in refusing a new trial in the pending suit.
   Per Curiam.

This cause has been tried three times in the lower court, and once in this, at the February term, 1886, and is reported in 19 Ill. App. 92, where will appear a sufficient statement of the facts for our present purpose. We then reversed the judgment for the reason that an instruction given on behalf of the plaintiff was deemed by us, under the authorities cited, to be erroneous.

On the re-trial of the cause in the court below the plaintiff asked no instructions, while ten were asked by the defendant, covering every point arising in the ease upon which the defendant relied as a defense, all of which, except the 5th, 7th and 9th, were given, either as asked or with modifications made by the court. As to the refused instructions, it is only necessary to say that the principle announced in the 7th was sufficiently stated in. the 6th given, at least as fully as the case made by the evidence warranted. The 10th instruction given embodied the substance of the 9th refused, and in less objectionable language.

We can not say that serious error was committed in refusing the 5th instruction. While the evidence shows that he, Frazier, assisted as an employe in the construction of the cradle, the record is barren of any evidence that he was the superintendent in charge over the work, or that he was authorized to call upon the appellant for materials and have his order complied with. The evidence is all the other way.

Hennel was the foreman and Jones the superintendent, and when they had the dispute about the use of the old bolts, neither of them considered it necessary to consult the appellee about using them. We are satisfied no injury resulted to appellant for the failure; to give said instruction.

The modification of appellee’s instructions numbered 1, 2, 3 and 4, was but carrying out the views of this court expressed in the former opinion when passing upon the question whether the court thus erred in refusing an instruction asked by appellee.

It is earnestly insisted that the verdict is not supported by the evidence, and is manifestly against its weight, and shoirld he set aside for that reason. A careful consideration of the testimony contained in this record convinces us that this point is not well taken. It may be conceded that it is quite conflicting upon many points arising in the case, hut upon the whole case, we are not prepared to hold that the jury were not justified in their finding in favor of appellee.

Three juries have found the facts the same way, and we ought not to interfere upon a mere question of fact where the evidence is so conflicting, unless convinced that the verdict is the result of passion or prejudice, and thereby manifest prejudice has been done.

The whole record considered, we are unable to say that this verdict was founded upon such causes, or either of them.

Upon the point made, that the damages are excessive, we do not consider them so clearly so as to call upon us to interfere for that cause alone.

The appellee for eleven months was confined to his bed, suffering intense pain; the bones of his leg decomposed and had to be removed, leaving him a cripple for life.

ft was said in C., R. I. & P. Ry. Co. v. Barrett, 16 Ill. App. 17, that, “Where pain and suffering are recognized elements in assessing damages for personal injuries, there can be no certain rules for their admeasurement, and consequently the law has left the assessment to the sound judgment of the jury, guided by proper instructions from the court, and before a court should interfere with the findings by putting itself in the place of the tribunal primarily established by the law to determine this question, it ought to be well advised that such verdict is not the result of the calm, dispassionate judgment of the jury, hut results from some improper motives or influences, and that injustice would be done if the verdict should be allowed to stand.”

Nothing appears in this record to show that the amount of the damages was not fixed by the jury upon a fair consideration of the testimony, neither does the amount assessed seem to be so excessive as to require a reversal of the judgment.

Judgment affirmed.