author: Congee, J.

text:
    James M. Bretz v. William Fawcett.

      Sales—Warranty—Recoupment—Instructions.

    The purchase of goods with warranty may, in a suit to recover the contract price, recoup damages suffered by him through breach of the warranty, although after receiving the goods he promised to pay the contract price.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Conkling & Grout, for appellant.
    It is beyond dispute, from the testimony, that appellant, without knowledge of what was necessary to make a first-class job, relying upon the statement of appellee that he was competent to do the work and would do a first-class job, ordered the castings for a particular purpose, which appellee well knew, at a certain price; it is also beyond dispute that the castings were not a good job and utterly failed to do what they were intended for, and were utterly worthless except for old iron. Appellant had the right to recoup the difference between the contract price and actual value and keep the castings. Benjamin on Sales (4th Amer. Ed., Bennett,) Sec. 894, p. 1043; 1 Sutherland on Damages, pp. 273-279; Babcock v. Trice, 18 Ill. 421; Crabtree v. Kile, 21 Ill. 183; Mears v. Nichols, 41 Ill. 211; Benjamin on Sales, Sec. 847, p. 1045.
    In Cantrall v. Fawcett, 2 Ill. App. 571, a note was given for machinery, partly paid, and new note given for balance, and yet recoupment was allowed. Nothing was said about the damages when note was given and the court allowed the recoupment. The court say: “The contract of warranty, if there was one, might remain, even were the note paid off, and suit might afterward be brought for the breach of it.”

      The jury might take into consideration, in determining whether his damages were as large as he claimed, the fact that he said nothing to the collector and attorney about them, or that he promised to pay, if they thought he promised, but it was not a bar. Babcock v. Trice, 18 Ill. 421; Cantrall v. Fawcett, 2 Ill. App. 571.
    Messrs. H. A. Stevens and Jones & Salzenstein, for appellee.
    Under the law as we understand it, and as stated by the Circuit Court in appellee’s first instruction, if Bretz knew that said grates, doors and frames were defectum, and notin accordance with the contract, and after having used them for a long, time, came to a settlement with Fawcett through Crafts or Stevens for §150.50, and agreed that that was the balance due Fawcett, he would be estopped from setting up and recouping the damages claimed against said sum of §150.50. Throop v. Sherwood, 9 Ill. 92; Hill v. Parsons, 110 Ill. 110; Pynchon v. Day, 118 Ill. 9.
   Congee, J.

This was a suit brought by appellee against appellant for the price of certain castings, doors, grates and frames, for a brick kiln, furnished appellant by appellee. The defense was that there was a warranty as to their fitness for the purpose intended, a failure of such warranty, and therefore a right to recoup the damages occasioned thereby against the contract price.

In answer to this, appellee relied upon proving that appellant had admitted the account and promised to pay it.

The following instruction was asked for by appellant:

“ If the jury believe from the evidence that plaintiff agreed to furnish defendant with grates, doors and frames for. brick kilns, and agreed to do a first-class job, then it was the duty of the plaintiff to furnish first-class doors, grates and frames, fit for the purpose for which they were intended; and if the jury believe from the evidence that the plaintiff did not furnish first-class doors, grates and frames, then he can not recover any more than the jury believe from the evidence the grates, doors and frames were reasonably worth when furnished,”

But the court refused to give the instruction as asked, but modified the same by adding: “Unless they believe from a preponderance of the evidence that defendant, after receiving the articles and knowing their character, made settlement with plaintiff’s agent and agreed that lie owed for said grates, doors and frames a certain sum.”

This modification we think worked injustice to appellant, and was erroneous in conveying the idea to the jury that if he failed to claim his damages when the bill was presented, but promised to pay for the articles furnished according to the contract price, he would he precluded from afterward claiming damages for a failure of the warranty.

We understand the law to be, where one purchases goods with a warranty he may, after admitting the correctness of and promising to pay the contract or purchase price of the goods, when sued for such price, recoup any damages resulting from a breach of the warranty: or he may even pay the price and afterward recover such damages in a separate suit. Benjamin on Sales, Sec. 847; Aultman & Co. v. Wheeler, 49 Iowa, 647; Cantrall v. Fawcett, 2 Ill. App. 571.

For this error the judgment of the Circuit Court will he reversed and the cause remanded. Reversed and remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    H. G. Rouse v. Peter Mohr and Fred Glissman.

      Negotiable Instrument—Note—Surety—Illegal Consideration—Embezzlement—Agency—Duress—Pleading.

    1. An officer of the law has no authority to take a prisoner charged with embezzlement to a third person, at the request of the person suffering the loss, for the purpose of obtaining the signature of such third person as surety on the note signed by the prisoner, and given in settlement of such loss. An officer thus engaged is the agent of the person for whom he acts.
    2, A note signed by one as surety upon the promise that the maker thereof shall not be prosecuted for embezzlement, being based upon an illegal consideration, is void.

      [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    This action is assumpsit upon a promissory note, as follows:
    §125.90. Peoria, Ill., February 20, 1881.
    On or before eighteen months after date I promise to pay to the order of Geo. W. Bouse & Son, four hundred and twenty-five and 90-100 dollars, at their office in Peoria, value received, with interest at the rate of 8 per cent, per annum.
    Feed Glissmae", Peter Hohb.
    Defendant Glissman was duly defaulted and judgment rendered against him for §518.70 and costs.
    Defendant Mohr, by his plea and amended plea, avers as follows: “That said promissory note was by him executed and delivered under the following circumstances, that is to say: Before the time of the execution of said promissory note defendant Fred Glissman had been in the employment of the plaintiff and one George W. Bouse, who were doing business as co-partners by the name and style of G. W. Bouse & Son, in the city of Peoria, in this State; that it was alleged and claimed by said Bouse & Son that defendant Glissman had embezzled a considerable sum of money belonging to said firm while so in their employ; that for said alleged offense said firm had caused said Glissman to be arrested upon a warrant issued in the county of Peoria, said warrant being-placed in the hands of one Fahey, an officer of said county, for the ¡nirpose of making said arrest; that while so under arrest said firm of Bouse & Son caused said Glissman to be. taken while so in custody of said Fahey, to the county of McLean, in this State, and to the residence of this defendant in said county oE McLean, for the purpose of procuring this defendant to become surety upon a promissory note for and with said Glissman; that it was represented by said officer,so having said Glissman in his custody that unless said defendant would sign said promissory note as surety for said Glissman, he, said Glissman, would be prosecuted for said alleged embezzlement, and put into the penitentiary; and that if this defendant would so sign said promissory note, said Glissman would be discharged from arrest and would not be farther prosecuted. And this defendant, being a half brother of said Glissman, having had the same mother, and entertaining great sympathy for him, and being much distressed in his mind on account of said alleged offense and arrest, and being anxious to relieve him from further prosecution, did on account of said promise and for no other consideration whatever, execute and deliver said promissory note with defendant Glissman, and so the defendant says that said promissory note is void, and this he is ready to verify,” etc.
    To this amended plea plaintiff demurred, and also assigned the following special causes of demurrer:
    “And for special causes of demurrer plaintiff shows:
    “1st. That said plea is double, being both a plea that said nóte was executed by defendant Mohr under duress, and a plea of illegal consideration in executing said note under promise of plaintiff to compromise a criminal proceeding.
    “2d. That said plea, so far as the same alleges that the consideration was an illegal promise of the plaintiff to compromise a criminal proceeding, does not allege that the plaintiff so agreed and promised, but that one Fahey so agreed and promised, and does not connect the plaintiff therewith.
    “ 3d. It is uncertain from said plea whether the alleged threats and promises of said Fahey are inducement to the plea of duress or to the plea of fraudulent consideration.

      “ 4th. Said plea does not allege that the warrant upon which said Glissman was arrested was illegally procured or issued, or if legally issued, was improperly or illegally used.
    “ 5th. Said plea does not allege that the plaintiff did not procure said warrant and arrest in good faith.
    “ 6th. Said plea does not allege that said note was taken for more than the amount actually due said It rase & Son for moneys embezzled by said defendant Glissman.”
    The court below overruled said demurrer and plaintiff abided by the demurrer, whereupon the court gave judgment for defendant Mohr, and plaintiff prayed and perfected his appeal.
    Messrs. Hopkins & Hammond, for appellant.
    As we understand the law there is nothing in the fact that a man is under arrest for embezzlement to prevent him from paying hack the money he has embezzled to the rightful owner, or securing it to him in any way he is able to do it, nor is there duress, fraud or want of consideration in taking the note of a friend or relative of the embezzler, who, without being misled or deceived, will give it as security through sympathy or a wish to shield his friend from prosecution, even though at the time the injured party promises that he .will not prosecute the embezzlement.
    When the plaintiff or prosecutor is bona fide pursuing legal redress of private wrongs, or protection from public wrongs, and the defendant assents to a just satisfaction in consideiation of a release, this shall not be intended as duress to avoid the act. So it was ruled in McClintock v. Cummins, 3 McLean, 158; Crowell v. Gleason, 10 Me. 325, on a prosecution to keep the peace. Watterman v. Barrett, 4 Harr. 311. In Huggins v. People, 39 Ill. 241, the court ruled that a plea of duress by the surety which did not show that the imprisonment was unlawful was bad.
    In Ford v. Cratty, 52 Ill. 313, Ford embezzled the money of one Furch, who sued out a warrant, and his attorney took the warrant to Ford and told him that if he did not pay or secure the money to Furch the criminal prosecution would he pushed against him. Ford then gave his note with sureties and the prosecution under the warrant was dropped. The action was upon the note so given, and the Supreme Court hold that under these circumstances it would not he regarded as having been given to compound a felony, inasmuch as the statute allows the- injured party to recover from the wrongdoer that which belonged to him; nor did it make any differ ence that Ford would not have given him the note had he not been threatened with arrest and criminal prosecution.

      Ur. J. S. Neville, for appellees.
    The consideration for this note was that defendant Glissman, who was guilty of a crime, should be discharged from arrest and no further prosecution urged against him for said crime. This being an illegal consideration the contract can not be enforced. Henderson v. Palmer, 71 Ill. 579.
    In this case the court say that where a note was given in consideration of a promise made by the payee of the note, to cause a prosecution for a felony, then pending in the State of Tennessee against the son of the maker of the note, to be discontinued, it was held that the consideration was illegal and the note and mortgage securing it could be avoided.
    In Schumer v. Farwell, 56 Ill. 542, the court say: “A person prosecuting another upon a charge of a crime may receive from the accused private satisfaction for his private injury, and the fact that he receives this while the prisoner is in confinement, and forbears further prosecution, does not of itself render the transaction illegal. But if the imprisonment be lawful, yet if the prosecutor detain the prisoner unlawfully, this is duress, and will not avoid the deed.”
    Schenk v. Phelps, 6 Ill. App. 612, is nearly exactly the same kind of a case as this. In that case Schenk was arrested in Chicago and taken to the home of his father near Wilmington, Ill., for the purpose of getting his father to sign the note as security, which was done, and the young man was released, as was Glissman in this case.
    In Heaps v. Dunham, 95 Ill. 584, the court say: “A promissory note given in settlement for a crime is without consider, ation, and it can not, while it remains in the hands of the payee, be enforced in a court of law or equity.”
    In Tobey v. Robinson, 99 Ill. 222, the court say: Nothing is better settled in the law of contracts, than if any part of the consideration upon which a promise rests is illegal, the entire promise fails.
    In Gorham v. Keyes, 137 Mass. 583, the court say: “We think that when a person is under arrest on a criminal charge, to obtain from him and his friends a promissory note in payment of an alleged claim, under a threat of prosecuting the complaint if the note is not given, and under an agreement not to prosecute if the note is given, is in violation of law equally whether the accused is guilty or not guilty. Such a proceeding is an abuse of criminal process, and the noto so obtained is void.”
    In Hackett v. King, 6 Allen p. 58, the court say: “ Though a person is arrested under a legal warrant by a proper officer, yet, if one of the objects of the arrest is to extort money or enforce a settlement of a claim, such an arrest is false imprisonment by all who have procured or participated in the procurement of the arrest, and a release or conveyance of property obtained by means of such arrest is void.”
    In Shaw v. Spooner, 9 N. H. 200, the court say: “ If, having arrested the defendant, any part of the consideration of anote given in settlement of a claim was that the process should be discontinued and the defendant released from arrest, such cjnsideration was illegal and the note therefore void.”
    In McMahan et al. v. Smith, 47 Conn. 221, the court say:
    “ A man having been arrested upon a criminal prosecution for obtain'ng goods under false pretenses, and his wife agreeing with the parties from whom the goods were obtained and who had procured the prosecution that she would give a note with her husband for the value of the goods and secure it by mortgage on her real estate if they would procure the abandonment of the criminal proceeding and release her husband, held, that the note was void, as being upon an illegal consideration.”
   Per Curiam.

The plea of Mohr presented a good defense to the note. It avers that appellants caused the officer who had arrested Glissman in the county of Peoria, and then held him in custody, to take him to McLean county for the purpose of procuring appellee to become surety for Glissman upon the note. This the officer had no authority to do as an officer of the law, and while engaged in such work his declarations to appellee would bind appellants, as their agent. The plea further avers that such officer threatened Glissman with the penitentiary if appellee did not sign the note, and promised to relieve him and stop further prosecution if he did so sign it, and that such promise was the sole and only consideration for the signature of appellee.

A note based upon such a consideration is illegal and void, and its enforcement by the courts would be against public policy. Henderson v. Palmer, 71 Ill. 579; Gorham v. Keyes, 137 Mass. 583.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Per Ouriam.

text:
    John Davis v. Charles Hinton.

      Injunctions—Trespass—Remedy at Laio.
    An injunction will not lie to prevent a trespass on lands by entry thereon under a claim of title, for the purpose of plowing the same, the proper remedy being an action for forcible entry and detainer.
    [Opinion filed November 3, 1888.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Ceexghtoít, Judge, presiding.
    Messrs. Gross & Broad well, for appellant.
    It seems to be the well established rule of law in this State, that where the trespasser is insolvent, and the acts of trespass are repeated and likely to be continuous, so that strife, breaches of the peace and violence might result, injunction is a proper remedy. Owens v. Gassett, 105 Ill. 354; McIntyre v. Storey, 80 Ill. 127; Peoria v. Johnston, 56 Ill. 45.
    An act which, in itself, might not result in serious damage, may, from its continuance, constitute a trespass, resulting in irreparable injury. High on Injunctions, Sec. 717.
    Appellant has been in the quiet and uninterrupted possession of his homestead for a long period of years.

      A court of equity will protect such possession against unauthorized disturbance and interruptions. High on Injunctions, Sec. 363.
    The bill shows that appellant is in the lawful possession of the premises as a homestead, and that appellee falsely claims the right to interfere with such possession.
    Persons of weak minds and incompetent to take care of their property are entitled to the protection and care of a court' of equity as much as technical lunatics and idiots. Shore v. Dixon, 6 Bush (Ky.), 644; Story’s Eq. Jur., Vol. I, Sec. 234.
    Messrs. Patton, Hamilton & Shutt, for appellee.
    A court of equity will not enjoin a trespass unless under very extraordinary circumstances. Ho precise rule can be laid down as to the cases in which an injunction will be granted against a stranger to prevent the commission of a trespass, but it is always expected that a strong case of destruction or irreparable mischief will be made out, which may be effected before trial as to the controverted right. Hanson v. Gardiner, 8 Ves. 308; Cooper v. Hamilton, 8 Blackf. 377.
    But an injunction will never be granted in order to prevent the repetition of a trespass, when the plaintiff has an adequate remedy at law. High on Injunctions, See. 459; Stevens v. Beekman, 1 Johns. 418.
    A court of equity will not interfere to restrain a trespasser simply because he is a trespasser, but only because the injury threatened is ruinous to property in the manner in which it is being enjoyed, and will permanently impair its future enjoyment. High on Injunctions, Sec. 460; Eckelkamp v. Schrader, 45 Mo. 505; Mayor v. Groshon, 30 Md. 436.
    The rule appeai-s tobe well settled that it is only where the trespass is of an aggravated character—-where the mischief is to the substance of the estate and irreparable—that an injunction will be granted. Jerome v. Ross, 7 Johns. 315.
   Per Ouriam.

The bill in this case sought to enjoin defendant from further trespassing upon the land of complainant. It averred that defendant, falsely claiming the land and the right to cultivate the same, had on several occasions invaded the premises and was then daily intruding thereon, and had that morning entered with a team and plow and pretended to begin plowing, and proposed to continue the same from day to day. It was averred that this was the only plow land of complainant; that it was indispensable to him. and that because of his advanced age and poor health he could not go elsewhere to cultivate the soil; that the defendant was insolvent, and that by reason of the facts stated the injury would be irreparable. The Circuit Court, on motion of defendant, dissolved the injunction and dismissed the bill for the want of equity. It is urged that in this ruling error was committed.

Construing the allegations of the bill in accordance with well settled rules, the case is, that defendant, asserting a c'aiin to the land the nature of which is not stated, but which is averred to be without foundation in right, has invaded the possession of the complainant, and is in occupancy of the land so far as it is capable of being occupied.

For such a grievance there is a clear and ample remedy at law by action for forcible entry and detainer. In that proceeding the right of possession can be speedily ascertained, questions of fact can be tried by jury and the complainant can be fully protected. It is not to bo presumed the defendant would continue to assert his false claim, whatever it is, and trespass upon the premises after such an adjudication as would be thus afforded. We do not understand that, under the circumstances disclosed by the bill, equity would interfere by injunction. Wangelin v. Goe, 50 Ill. 459; High on Injunctions, 2d Ed., Secs. 699-701. The decree will be affirmed.

Decree affirmed.


text:
    William Deering v. William Walker.

      Agency—Note—Guaranty-—Unauthorized Use of Name—Partnership.

    In an action on an alleged guaranty of a promissory note, executed by a third person, this court declines to interfere with the Ending of the court below for the defendant, there being a conflict of evidence as to whether he authorized or ratified such use of his name.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Ford County; the Hon. A. Sample, Judge, presiding.
    Mr. Milton H. Cloud, for appellant.
    As a partner, did Daniels have authority, actual or apparent, to sell the machine and guarantee the notes in controversy ?
    The firm was organized for the purpose of selling appellant’s machinery, etc., and as a part of its obligation to appellant it was to guarantee notes taken for machines sold.
    The business of the firm was to sell. That was the principal thing. The place where machines might or might not be sold was a mere incident to the business. If they saw fit to take the risk of losing their commissions on the sales, they might sell anywhere; and wliat the partnership might do in that particular, either partner might do on the firm account.
    Such being the case, appellee’s claim that the sale was not within the territory covered by the contract will not protect him.
    The object of the clause prescribing the territory in which the firm might sell is apparent. Appellant manufactured harvesting machines which he sold to farmers in all parts of the country. The sales were made through agents who had set apai-t to them certain contiguous territory in which they were authorized to canvass and sell. The agent’s compensation was a commission on the sales made. There was a strong inducement, therefore, to an agent to invade territory properly belonging to his neighboring agent, unless lie was restrained from so doing by some provision in his contract of agency.
    The restraining clause in this contract simply provided that if the agents, Daniels and appellee, did sell in the territory of the neighboring agent, they should forfeit to such agent the commissions on such sales, and respond to him for such other damages as might- result from the trespass. The right of appellant to require full settlement for machines so sold, and the guaranty of notes taken therefor, was not waived by the contract.
    Every partner possesses full and absolute authority to bind all the partners, by his acts or contracts, in relation to the business of the firm, in the same manner and to the same extent as if he held full powers of attorney from all the members. Mor, as between the firm and other parties who deal with him in good faith, and without notice, is it a matter of any consequence whether the partner is acting fairly with his co-partners in the particular transaction or not. If he is acting within the apparent scope of his authority, and professedly for the firm, his acts and representations are binding upon the firm. Pahlman v. Taylor, 75 Ill. 629-635, and authorities there cited; Gregg v. Fisher, 3 Ill. App. 261; Fisher v. Bowles, 20 Ill. 396; Warner v. Hale, 65 Ill. 395; Silverman v. Chase, 90 Ill. 37.
    Daniels and appellee agreed with appellant to sell to good and responsible men only.” Bymonds was not responsible at the time the notes fell due, and it will be presumed he was not at the time they were taken, in absence of proof to the contrary. The burden of showing his responsibility at that time, if at all materia], was on appellee. He can not excuse himself under the claim that Daniels alone made the sale and took and guaranteed the notes. Wolf v. Mills, 56 Ill. 360-1. Partnership debts are joint and several. 2 Starr & C. Ill. Stat., 1376, ¶ 3; Mason v. Tiffany, 45 Ill. 392-5; Gage v. M. Nat. Bank, 79 Ill. 62.

      Messrs. Tipton & Moffett, for appellee.
    A surety or guarantor can only be charged when brought within the very terms of his contract. Ryan v. Shawneetown, 14 Ill. 20; Nat. Bank of Peoria v. Diefendorf, 90 Ill. 396; Smith v. Wetherell, 4 Ill. App. 655; Musick v. Hodgen, 47 Ill. 125; Thomas v. Olney, 16 Ill. 53. The undertaking of a party to a contract of guaranty can not be extended by implication or enlarged. Appellee’s contract as to guaranteeing notes was to guarantee notes taken on sales in territory of “ Paxton and vicinity,” and none other, and it can not be extended to sales made in ‘‘ ¡Rankin and vicinity.” Therefore the contract and the agreement therein contained has nothing to do with these notes, and it can not be used to predicate a cause of action against appellee on these notes.
    It is well settled that any restrictions imposed by the partnership articles operate inter se, and with all parties having knowledge of such restrictions. Bindley on Partnership, Vol-1, pp. 236-7; Davis v. Richardson, 45 Miss. 499; Livingston v. Roosevelt, 4 Johns. 251; Gray v. Ward, 18 Ill. 32; Davis v. Blackwell, 5 Ill. App. 32; Marsh v. Thompson, 2 Ill. App. 217.
    Another proposition we state, viz: A partner has no authority by virtue of the partnership lVation to sign the firm name for any purpose not connected with the partnership business. Bindley on Partnership, Vol. 1, p.325; Selden v. Board of Commerce, 3 Minn. 166; Davis v. Blackwell, 5 Ill. App. 32; Marsh v. Thompson Bk., 2 Ill. App. 217; McNair v. Platt, 46 Ill. 211.
    This is an act pruna facie without the scope of any mercantile partnership business. It devolves upon the party, therefore, seeking to charge the firm or individual member thereof, to show that such action was authorized or same was afterward ratified. As to all but the party actually signing the name, the act is a nullity. Spurck v. Leonard, 9 Ill. App. 174; Davis v. Blackwell, 5 Ill. App. 32; Marsh v. Thompson, 2 Ill. App. 217; McNair v. Platt, 46 Ill. 211; Foot v. Sabin, 19 Johns. 154.
   Congee, J.

On December 11, 1882, appellant, Deering, appointed, by a written instrument of that date, appellee Walker and one John Daniels, his agents for the sale of his harvesters and other machinery, for the season ending September 1, 1883, “for the following territory and no other: Paxton and vicinity;” by which written instrument, among other things, Walker and Daniels agreed to guarantee the collections of all notes taken on sales of machinery made under such agreement.

An agency was also established by appellant at Rankin, Illinois, for the sale of like machinery, and one Bush Daniels was made the agent at that place, and a sample machine was sent to him there; but he, refusing to act as such agent or sell such machine, Gilchrist, the traveling agent of appellant, afterward made a parol agreement with John Daniels, by which the territory of Rankin and vicinity was turned over to him, he at the time professing to act for himself and Walker.

The machine at Rankin was sold to one Symonds, his notes taken therefor, and the names of John Daniels and Wm. WaUter placed thereon as guarantor by John Daniels.

The notes not having been paid, suit was brought upon the guarantee thereon. Appellee Walker filed a plea verified by his affidavit denying the execution of such guarantee as to himself. The cause was tried by the court without a jury, with a finding for appellee Walker.

We can see no good reason for interfering with the judgment of the court below. It is clear that the court was authorized to find, as it did, that the machine sold at Rankin was not sold under and by virtue of the written contract, which was limited to Paxton and vicinity; and it follows that unless the facts and circumstances in evidence were sufficient to show that Walker, in some legal way, ratified the additional contract made between John Daniels and appellant’s agent, by which Daniels assumed to control and sell the machine at Rankin, or that appellee Walker authorized or ratified the use of his name as guarantor upon the Symonds notes,W alker would not be liable.

These were questions of fact, upon which the evidence was conflicting, and we see no reason for reaching a conclusion therefrom different from that reached by the Circuit Court. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Couger, J.

text:
    John L. Brock and Mary E. Brock v. Levi M. Brock.

      Negotiable Instruments—Change in Note—Mortgage—Foreclosure— Rights of Wife.

    1. In a foreclosure proceeding this court sustains the decree of the court below, finding that a change made in the note secured was with the knowl. edge and consent o£ the maker and to carry out the agreement of the parties.
    2. The wife of the maker, who joined in the mortgage, was not prejudiced by a change lawfully made by the parties to the note, especially as such change made it conform to the language of the mortgage.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Tazewell County; the Hon. U. W. Green, Judge, presiding.
    Messrs. B. S. Pbetttman and T. RT. Green, for appellants.
    Mr. W. R. Curran, for appellee.
    If a change in a material part of a promissory note has been made by a party in interest, without any fraudulent intent, by or with the knowledge or consent of the maker, or by his ratification after he gains knowledge of the fact, it does not render it void in his hands. Gardner v. Harbock, 21 Ill. 129; Elliott v. Blair, 47 Ill. 342; Vogle v. Ripper, 34 Ill. 100; Stiles v. Probst, 69 Ill. 382; Goodspeed v. Cutler, 75 Ill. 534; Canon v. Grisby, 116 Ill. 151; Wallace v. Wallace, 8 Ill. App. 69; Speak v. United States, 9 Cr. 27.
    And to the same point, and the further point that material alterations made in a note that would avoid it may be ratified either before or after the alteration. Pelton v. Prescott et al., 13 Iowa, 567.
    This case cites Grimstead v. Biggs, 4 Iowa, 559, and also shows that Wheelock v. Freeman, 13 Pick. 165, is not in point on the question under consideration. King v. Hunt, 13 Mo. 68; Humphreys v. Guillow, 13 N. H. 385; Penny v. Corwithe, 18 Johns. 498; Stewart v. First Nat’l Bank, 40 Mich. 348. This case specifically holds that the ratification may be by parol. Prouty v. Wilson, 123 Mass. 297.
   Couger, J.

John L„ and Levi Brock, who are brothers, owned a tract of land as tenants in common, and Levi sold his undivided interest to his brother for 83,000. It was understood that the purchase money should be paid according to the tenor of four promissory notes, one for §500 due March 1, 1871, one for §500 due March 1, 1872, one for §1,000 due March 1, 1873, and one for §1,000 due March 1,1874. These notes were to draw six per cent, per annum interest until maturity, and thereafter ten per cent.

These notes were secured by a mortgage executed upon the entire tract by appellants, John L. and his wife, on the face of which appears the following language: “ And the fourth note draws interest from the time the third note is due at six per cent, per annum, and if either is not paid when due, to draw ten per cent, interest.”

In writing the fourth or last note the provision that it should draw ten per cent, interest after maturity was omitted (by mistake, as it is claimed by ap2)ellee), and after such note came due, in the spring of 1874, a2)pellee inserted in the face of such note the words “with ton percent, interest after maturity.” A bill to foreclose such mortgage was filed, whereupon appellant, in his answer, set up this change in the note, claimed that it was unauthorized by him, and therefore vitiated the note. Appellee amended Iiis bill, admitted that he had made the change in the note, but that it was done with the knowledge and consent of John L. Brock, and done for the purpose of carrying out the arrangement made between himself and ajjpellant at the time of the original transaction. This question was sharply contested, and the Circuit Court, from all the facts and circumstances in evidence, found the fact to he as claimed by B23pellee, with which finding we are entirely satisfied.

This disposes of the principal objection raised by appellants, as it is immaterial how material the change made in the note was, provided it was made by the consent and approbation of appellant John L. Brock, so far as he is concerned.

¡Next it is insisted that such change, having been made without the knowledge or consent of Mrs. Brock, the wife of the mortgagor, could be used by her to prevent a foreclosure so far as her interest in the land might extend. Site was not a party to the note, and the mortgage was not changed, but expressly upon its face provided that the note in question should bear ten per cent, interest after maturity, so that her rights were in no way affected by the change, and her interest in the realty is, by the decree of foreclosure, subjected to the precise charge she herself placed upon it.

Had the note been fraudulently or improperly changed, it might be that she could complain; but when the note was lawfully changed by the parties to it,1 and made to conform to the language of the mortgage she had executed, she has no just ground to resist the foreclosure. The,decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    Charles Aulger v. M. T. Badgely.

      Master and Servant—Infancy—Emancipation—Recovery of Wages.

    1. Emancipation will be presumed where a father testifies in behalf of his son and treats as his a claim upon which a suit is brought by him after attaining full age, for services rendered while a minor.
    2. In an action to recover wages alleged to be due, the evidence being sharply conflicting, 'this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed October 3, 1888.]

      Appeal from the Circuit Court of Tazewell County; the Hon. JN". W. Green, Judge, presiding.
    Mr. B. S. Pbettthan, for appellant.
    Mr. W. B. Cdeban, for appellee.
   Per Curiam.

Appellee brought this suit before a justice of the peace for work and labor as miller for appellant from October 8, 1885, to March 1,1886, claiming at the rate of $50 per month. On appeal he recovered judgment on verdict for $90.78, having credited defendant $81.95 on account.

The principal question is one of pure fact. Defendant’s version of the matter was that plaintiff and his father agreed to operate the mill during the fall and winter for the keep of their family, hoping to work up a trade that would make it profitable for both parties to have them run it thereafter on shares, and had received in full the consideration so agreed on. This defense was so strongly supported by evidence that we should have been quite as well if not better satisfied with a verdict in accordance with it. But both the plaintiff and his father denied it. The case was twice tried on appeal, the first jury having failed to agree, and no complaint is made of the action of the court as to admission of evidence or in respect to the instructions. This question of fact was fully and fairly submitted, and we think we ought not to interfere with the finding.

It appears that plaintiff was not of age when these services were rendered, but was when the suit was brought. His father, however, was a witness on his behalf, and treated the'1 claim as that of his son. The presumption of emancipation arising upon that fact was not rebutted, and so the action must - be held to have been properly brought in his name. Scott v. White, 71 Ill. 290.

Judgment affirmed.


author: Conger, J.

text:
    John M. Anderson v. Irason Taylor.

      Contracts—Construction—Dependent Clauses—Instructions.

    In an action on a con'ract providing for the support of the mother-in-law of the defendant, she also being the wife of the plaintiff, this court holds as erroneous an instruction to the effect that the conditions contained in the contract are independent of each‘other.
    [Opinion filed October 3, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. C. B. Smith, Judge, presiding.
    Mr. A. J. Fryer, for appellant.
    Messrs. Craig & Craig, for appellee.
   Conger, J.

This was a suit instituted upon the following contract:

“Know all men by these presents, that whereas the undersigned.has jointly purchased with Sarah Taylor, wife of Irason Taylor, forty acres of land in the town of Ashmore, now, if the said Irason Taylor shall support the said Sarah Taylor, his wife, with necessary food and raiment during her natural life, in case he, the said Irason Taylor, shall survive her, and for other valuable considerations, the said undersigned agrees for that purpose to give to the said Irason Taylor the use and occupation of the east half of said forty-acre tract, and in case the said Irason Taylor survives the said yrife, then in consideration of the interest the said Irason has in said land, the said undersigned undertakes and agrees to pay the said Irason the sum of three hundred dollars.

“Given under my hand this 15th day of October, 1885.

“ John M. Anderson.”

The defenses set up were: - That Taylor never complied with his part of the contract, for the reason that he failed to take care of his wife and that Anderson had expended more than the amount of the §300 mentioned in the contract in taking care of Taylor’s wife at his request. The trial resulted in a Verdict and judgment in favor of appellee for §300.

The court instructed the jury that the agreement consisted of two parts, each of them independent of the other; that the portion giving to Taylor the use and occupation of the east half of said forty-acre tract in consideration of the support rendered by Taylor to his wife, was independent of the latter portion of the agreement, by which Anderson agrees under certain contingencies to pay Taylor §300 for his interest in the land.

We are inclined to think the court below erred in so instructing the jary. While the agreement is not entirely clear or free from doubt, we think the true construction of its meaning is that these clauses are not independent of each other, but dependent; that the consideration which moved Anderson to promise to pay the §300, was the interest, whatever it was, that Taylor had in the land, and in addition thereto the support by Taylor of his wife.

For this error the judgment of the Circuit Court will be reversed, and the cause remanded.

JReversed and remanded.


author: Ooitgeb, J.

text:
    Henry Bartlett, Administrator, on Appeal of King Kerley v. Virginia Wright.

      Administration—Claim of Wife against Estate of Husband for Money Had and Received—Statute of Limitations—Instructions—Change of Venue.

    1. Where a husband receives money from his wife, unless upon special terras, the inference is warranted that he receives and is to hold it for her use and benefit as an agent or depositary.

      2. The statute o£ limitations does not begin to run against the wife as to money so deposited until after demand and refusal.
    3. " It is matter of no consequence that some of the items, as shown by the evidence, are larger than specified in the account filed against an estate, if the amount of the verdict is within the claim as filed.
    4. This court will not reverse merely because some of the instructions are inaccurate when, taken together, they fairly instruct the jury upon the questions at issue in accordance with the law.
    [Opinion filed December 5, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. J. C. Thompson and Carter & Covert, for appellant.
    In 3 Gilm. 599, the court says: “ The statute of limitations begins to run when the cause of action accrues. In ease where some act is to be done, or condition precedent to be performed by a party to entitle him to his right to sue, and no time is fixed at which the act is to be done or condition performed, he must exercise reasonable diligence to do the one or perform the other, or he will be barred by the statute of limitations, otherwise it would be a power to defeat the law by his own negligence and wrong.” See also Angell on Limitations, Sec. 95, pp. 94 and 95; 2 Parsons on Contracts, 4th Ed., Sec. 370; Hayward v. Gunn, 82 Ill. 388; Wachter v. Albee, 80 Ill. 47; Ayres v. Richards, 12 Ill. 148-9; King v. Hamilton, 16 Ill. 190; Reeves, Jr., v. Herr, 59 Ill. 81; Thompson v. Reed, 48 Ill. 122; Freeman v. Freeman, 65 Ill. 106; Kerner v. Crall, 19 Ill. 191; Cagwin v. Ball, 2 Ill. App. 71.
    From the above authorities the doctrine is clearly maintained that the statute of limitations commences running whenever a suit could have been brought and maintained, and the statute of limitations need not be specially pleaded in this case. Thompson v. Reed, 48 Ill. 119.
    The statute of limitations begins to run when the cause of action accrues. And where money is collected by an agent the money is due the principal when collected. Ho demand for it is necessary, and the statute begins to run from the time the money is received. Means v. Jenkins, 18 Ill. App. 41; Cagwin v. Ball, 2 Id. 70; Campbell’s Adm’r v. Boggs, 48 Pa. St. 524; Downey v. Girard, 24 Pa. St. 53; King v. Bennett, 16 Ill. 290; Shelburne v. Robinson, 3 Gilm. 597; Niemeyer v. Brooks, 44 Ill. 77; Angell on Lim. 93.
    So, too, where one partner received the whole sum for the agreed price for a single transaction, the work being completed, the right of action against him by the other partner for his share accrues, and the statute begins to run when the money is received. Hamilton v. Hamilton’s Ex’rs, 18 Pa. St. 20; S. C., 55 Am. Dec. 585, *note; Bispham v. Price, 15 How. 179.
    So, also, on a promise to pay in an indefinite time, or on a contingency under the control of the promisor, the statute begins to run immediately. McDowell v. Goodwyn, 12 Am. Dec. 685.
    So, too, a note or certificate of deposit, payable on demand, is payable at once, and the statute begins to run at the date of .the instrument. Ho demand is necessary. Armstrong v. Caldwell, 1 Scam. 546; Hunt v. Divine, 37 Ill. 144; H. & St. J. R. Co. v. Crane, 102 Ill. 259; Wenman v. Mohawk Ins. Co., 28 Am. Dec. 464; Wheeler v. Warren, 47 N. Y. 519; Palmer v. Palmer, 36 Mich. 487; Brummagin v. Tallant, 29 Cal. 503.
    And, generally, money payable on demand, or at no stated time, may be recovered without first making demand. Cobb v. Arnold, 8 Metc. 405; Niemeyer v. Brooks, 44 Ill. 77.
    For money had and received it is not necessary to make a demand before bringing suit. Hunt v. Nevins, 15 Pick. 500.
    So, also, where money is paid by mistake, the statute begins to run from time of payment. Bank v. David, 12 Pet. 32.
    Mr. William MoFaddor, for appellee.
    The presumptions of law are all to the effect that the money in the hands of the husband was still the money of the wife. Patten v. Patten, 75 Ill. 451; Tomlinson v. Matthews, 98 Ill. 181; Bergey’s Appeal, 60 Pa. St. 408; Hamill’s Appeal, 88 Pa. St. 367; Marsh v. Crilly, 22 Ill. App. 543.

      The presumption of law upon the facts in this record, is that the husband (Robert Wright) had received his wife’s money to take care of for her and for her use. Bergey’s Appeal, 60 Pa. St. 45; Hamill’s Appeal, 88 Pa. St. 367; Rusling v. Rusling, 42 N. J. Eq. 575; Hileman v. Hileman, 85 Ind. 1; Patten v. Patten, 75 Ill. 451; Tomlinson v. Matthews, 98 Ill. 181.
    The law having created a separate property for the wife, and in recognition of what is natural under the marriage relation, having anticipated and allowed for its management by the husband, does not require or expect of a woman the same exact mode of dealing with the husband, as a condition of preserving her title to her separate property in the hands of her husband, which the law expects of third persons and strangers dealing with each other. Carpenter v. Davis, 72 Ill. 18; McLaren v. Hall, 26 Iowa, 305; 2 Bish. on Married Women, Sec. 397.
    The law does not require of a married woman as a condition of protecting her rights, that she should deal with her husband in such manner as to destroy the harmony of the marriage relation, but expects of her only such acts as are consistent with the harmony of that relation. Carpenter v. Davis, 72 Ill. 18.
    In the line of the principle last mentioned, we say that statutes of limitations do not apply to the relation of husband and wife as they do between third parties, strangers to each other, unless expressly so providing. Yeomans v. Petty, Adm’r, 40 N. J. Eq. 498; Rusling v. Rusling, 42 N. J. Eq. 595; Barnett v. Harschbarger, 105 Ind. 410; Angell on Lim. 60.
    The presumptions of law on the evidence in this case being that the husband held the wife’s property for her use, as above seen, and there being no evidence of any terms of holding, the next presumption which the law would indulge, would be that the same was held by him subject to her order or to be turned over to her on demand. Girard Bank v. Bank Penn Tp., 39 Pa. St. 98; Edwards on Bail., 2d Ed., Secs. 10, 40; Evans’Pothier on Contracts, 2d Vol., p. 128; Story on Bail., Sec. 41; Jones on Bail., Secs. 36, 117; Bouvier’s Law Dic., “ Deposit.”

      The husband would he presumed to hold her money as a bailee for custody—a depositary, in other words, and under that class of bailments and its laws. Bouvier’s Law Dict., title 66 Deposit;” Edwards on Bail., 2d Ed., Secs. 10, 40; Boughton v. Flint, 74 N. Y. 482; Payne v. Gardner, 29 N. Y. 197.
    In the absence of any proof of the duration of the continuance of such bailment, it will be held to be indefinite and continuing. Schroeder v. Johns, 27 Cal. 281; Rusling v. Rusling, 42 N. J. Eq., 595; Baker v. Joseph, 16 Cal. 173; Finkborne’s Appeal, 86 Pa. St. 369.
    Such being the legal relationship of parties, the statutes of limitation never commenced to run against appellee’s claim during the lifetime of Robert Wright, unless demand were made upon Mm for its payment and he refused to pay, or unless he in some other way disowned his trust relationship, and of this there is no proof, Boughton v. Flint, 74 N. Y. 482; Edwards on Bail., Sec. 40; Schroeder v. Johns, 27 Cal. 281; Rusling v. Rusling, 42 N. J. Eq. 595.
    Ordinary statutes of limitations do not apply and are not applicable between depositor and depositary or bailor and bailee for custody. Smith v. Bell, 107 Pa. St. 360; Finkborne’s Appeal, 86 Pa. St. 389; Edwards on Bail., Sec. 40.
    Where there is a holding of money by a husband such as here, indefinite as to time, it will be supposed that a continuing relationship of promisor and promisee is contemplated' by the parties, and the statute of limitations nfeverran against appellee’s claim in the lifetime of Robert Wright without a demand on him for the return of the money in question, and of this there is no proof. Girard Bank v. Penn Tp., 39 Pa. St. 102; Rusling v. Rusling, 42 N. J. Eq. 595; Baker v. Joseph, 16 Cal. 173.
   Ooitgeb, J.

This action arises out of a cDitn filed in the County Court of Adams county by appellee, Virginia Wright, against the estate of her deceased husband, Robert Wright, for the sum of §1,200 (§700 as principal and §500 interest thereon).

Trial was had in said court, and the claim allowed to the amount of §1,240, from which judgment- King Kerley, who claimed- to be interested in the estate, took an appeal to the Circuit Court, when the claim was allowed to the amount of $885.05, from which judgment King Kerley prosecutes an appeal to this court.

The facts out of which the claim arises are that in 1872 the claimant, Virginia Wright, together with her husband, Kobert Wright, sold and conveyed a tract of land which she had inherited from her father for the sum of $775. The evidence tends to show that Robert Wright at the time received this money and afterward used it in paying for a tract of land he had bought, and the title to which was in his name. Mrs. Wright not being a witness, the evidence showing the receipt and use of the money by Kobert Wright consisted of his admissions, and were, we think, sufficient to authorize the jury in finding that he did, in March, 1872, receive and have in his hands the money of his wife to the amount of $775, but in what capacity or for what purpose he was to hold it, does not appear.

Robert Wright died in August, 1883, and appellee filed her claim against his estate on the 30th day of June, 1885. It is insisted by appellant that the claim is barred by the statute of limitations, and this is the principal question presented by the record.

The theory of counsel for appellant is stated as follows in their brief: “When money is obtained as this is alleged to have been, it would be due when obtained, and suit could have been brought to recover the same at any time after it had been so obtained, or at farthest within a reasonable time thereafter, and that, too, without any demand being made for the same. When money has been so obtained and there is no agreement as to when it shall be repaid, and no time fixed for its repayment, it becomes and is due immediately, or at farthest within a reasonable time thereafter. The evidence fails to show that any time was fixed or agreed on between claimant, Virginia Wright, and her husband, as to when the same should be repaid, nor does the evidence show that any conditions precedent were. to be performed before the money was to be paid; and this being so, we insist that the law makes it due and payable when received, or at farthest within a reasonable time thereafter. -The case of Robinson v. Robinson, 3 Gilm. 697, before referred to, fully maintains this theory of this action as we understand the law. Also Sec. 95 of Angelí on Limitations, on page 93, says : ‘It has been held invariably, that if a promissory note is made payable in money on demand, the statute commences running from the date of the note, and that no special demand is necessary.’ In Parsons on Contracts, at page 371, the author says : ‘But a note payable on demand is due always, and the statute begins to run as soon as the note is made. So it is with the receipt of money borrowed whereby the borrower agrees to pay “ when called upon to do so.” The statute begins to run whenever the creditor or plaintiff could bring his action, and not when he knew he could.’ ”

It is apparent that appellant proceeds upon the theory that there is no difference recognized by the law between the dealings of husband and wife as to themselves and the dealings of either with third parties.

We are inclined to think there is an important distinction to be kept in view, which makes many of the authorities referred to by appellant of little use in arriving at a correct conclusion. As a general rule it is time, when one obtains the money of another without any agreement as to repayment, the law will imply a promise to repay either at once upon its receipt or within a reasonable time thereafter, and the statute would begin to run so soon as such promise of payment could be implied.

One exception, however, to this general rule, is a case of deposit, when the depositary holds property in trust subject to the owner’s order, upon which the statute would not begin to run until a demand and refusal to pay, or some equivalent act.

There being no direct evidence to show the terms on which Mr. Wright received the money of his wife, we think the inference is warranted that he received and was to hold it for her use and benefit; that Mrs. Wright did what most wives who have confidence in their husbands would do, allowed him to retain and make use of it without expecting to receive interest thereon, or to pay him anything for managing it, but retaining the right of requiring it to be returned whenever she desired. If this inference is a correct one, then it follows that Mr. Wright’s possession of the money was lawful, and he would be under no legal obligations to return it until his wife desired it, and made such desire known by a. demand or something equivalent thereto. His possession would be similar to that of any other depositary holding money or propeity of another, subject to the owner’s orders. In Evans’ Potliier on Contracts, 2d Yol., p. 126, it is said:

“When a man deposits money in the hands of another to be kept for liis use, the possession of the custodian ought to be deemed the possession of the owner until an application and refusal, or other denial of the right; for' until then there is nothing adverse, and I conceive that upon principle no action should be allowed in these cases without a previous demand—consequently that no limitation should be computed back of such demand.”

The money was received by Mr. Wright either as a gift, a loan, or as agent or depositary of his wife to be held for her use and benefit. And there being no positive evidence from which to determine the character of the transaction, it seems to us that the most natural and reasonable inference to be drawn is the one we have indicated; such an inference is much more in accordance with the usual relations of mutual trust and confidence existing between husband and wife, than any other.

It can not be presumed to be a gift to the husband, for if he claims it to be such, the burden of proof is upon him to establish his claim. Patten v. Patten, 75 Ill. 446. “His receipt of proceeds and income with her consent, will be presumptively in the character of agent.” Ibid.

The presumption accords with that spirit of peace and harmony which should exist in the marital relation. Were it presumed to be a loan,' and the statutes of limitation held to apply as in other cases of loans, she would have to watch the lapse of time and either sue, or procure a new promise from her husband as with strangers.

As said by the court in Barnett v. Harsberger, 105 Ind. 410, “ It needs no argument to prove that evil will result from a rule that requires the wife to watch lest the statute of limitations bar her rights, and she be answered when she asserts her claims after her husband’s death, that as she did not sue him within the statutory time she must lose the money intrusted to him. It is not for the good of the world that a wife should be compelled to distrust her husband and deal with him as she would a stranger, in order that she may not have her rights swept away by the lapse of time.” Hamill’s Appeal, 88 Pa. St. 377; Bergey’s Appeal, 60 Pa. St. 415; Rusling v. Rusling 42 N. J. Eq. 595.

We are of opinion that the claim of appellee was not barred by the statute of limitations.

It is objected that the verdict exceeded the amount of the claim filed. We do not concur in this objection; the total amount of the claim filed was 81,200, and it is a matter of no consequence that some of the items as shown by the evidence are larger than specified in the account filed, so long as the amount of the verdict is less than the whole claim as filed.

JSTeither did the court err in overruling the petition for change of venue, nor do we find any substantial error in the instructions. Some of these are not accurate, but they give the law upon the question of the statute of limitations fairly, and in accordance with the views we have endeavored to present, and taking them all together, we think the appellant has no good cause to complain.

Believing that substantial justice has been done, the judgment of the Circuit Court will be affirmed.

Judgment affirmed,.


author: Wall, P. J.

text:
    Edward Welch v. Jacob K. Zerger.

      Principal and Surety—Evidence — Partnership — Special Finding— Practice—Discretion.

    1. It is proper to exclude evidence which is irrelevant where it does not appear that other evidence will be produced to render it relevant.
    2. In an action to recover money alleged to have been paid by the plaintiff for the defendant as his surety on a note, and the value of certain stock, it is held: That the evidence offered by the defendant, which tended to prove that the indorsement on the back of the note was made after the commencement of the suit, was properly excluded as irrelevant; that certain evidence as to the amount contributed by the defendant to a partnership which had existed between the parties was also properly excluded; that the question of fact as to whether the payment was for the benefit of the defendant or for the firm was settled by the jury; and that certain items were properly treated as partnership matters.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of De Witt County; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Moons & Waenee, for appellant.
    Messrs. Geaham & Monson, for appellee.
   Wall, P. J.

The appellee recovered a judgment in an action of assumpsit against the appellant for $706.14, from which an appeal is prosecuted to this court.

The items constituting the basis of recovery were money paid by appellee for appellant, as his surety on a promissory note, and the value of a cow and some pigs sold by the former to the latter, less a credit of $93.21 for sundry matters which need not be stated. The parties had been partners in buying and selling live stock; their partnership affairs were unsettled, and the chief matter in controversy was whether the note should not be regarded as though it were a partnership liability. It was payable to one Bennett as administrator, and was given for property purchased by appellant at administrator’s sale. At the same time another note for nearly the same amount was given by appellant and signed by appellee also, for other property, which it is contended was purchased for the partnership. The latter note was paid by appellant, he supposing, as is now contended, that it was for the property purchased for himself. The first mentioned note was paid afterward by appellee, and it is now contended that when he paid it he supposed it was for the partnership property, and that as he had partnership funds which he kept with his own, he ought not to be permitted to recover the amount from appellant in this action.

The first count in the declaration was upon a note signed by appellant payable to said Bennett, for the amount, and of the date and of the same terms generally as this one, and by said Bennett indorsed and delivered to the plaintiff.

The other counts are for money paid, laid out and expended, account stated, etc. Upon the trial the plaintiff did not seek to offer the note under the first count, but offered it as a part of his proof under the count for money paid for use of defendant; and one of the errors assigned is that the court refused to permit defendant to prove that the indorsement which appears on the back of the note was made after the commencement of the suit.

The plaintiff was not relying upon the indorsement, and had not given it in evidence. Indeed, it is apparent that the note in question was not the note described in the first count, and we do not see upon what theory it was ever intended to treat this note, of which plaintiff was a joint maker, as assigned to himself. When, therefore, the defendant offered to make the proof as above stated, the court properly rejected it as irrelevant, for the indorsement was not a part of the case as made by the plaintiff, and it could not be material in the light of what was then before the court, to inquire when it was made. It is now suggested that if the proof had been admitted, it could have been followed up by other questions which would have developed such a state of facts as that the court would have been required to instruct the jury that appellee could not recover on the first count because the note was assigned after suit brought, and that he could not recover under the common counts, because he had not paid the debt for the benefit of the plaintiff. When proof is offered which does not appear to be relevant in view of what has preceded, it is proper for counsel to state its object and purpose, and if he will undertake to produce other proof which will make that offered relevant, the court may, as a matter of discretion, admit it conditionally. There was no suggestion of this kind in the present instance, and the court could not, of course, infer that there would be any proof with which this might be connected. It is too late now to make such a suggestion, and we are not able to see even in the light of the whole case, that the proof would have been of any value; certainly it would not have induced the court to give the instruction supposed with reference to the common counts, and there was no occasion, for reasons already stated, to give it with reference to the first count.

It is further objected that the court excluded several items of evidence offered by appellant as to the amount he had contributed to the partnership and how much appellee had belonging to the firm when he paid the note in question. These were collateral matters which could not afford any aid in settling the issue before the jury, and would probably have confused the case. The court very properly ruled upon this point.

The main dispute between the parties was a question of fact, whether the payment was really for the benefit of appellant or for the firm, a mistake having been made by each party when taking up the respective notes. This was settled by the jury, and, we think, according to the evidence. At any rate we are not at all disposed to interfere with their finding in this regard.

The plaintiff offered quite a number of checks to show payments made by him to defendant, and one to Tred Huffman, to support the count for money loaned, which defendant claimed were all on account of the partnership. The jury, by a special finding, agreed with the defendant as to these items, and did not allow the plaintiff for them. There were other items which it is nowr insisted should have swelled the set-off or credit of the defendant, and as to which some argument is made in the brief of appellant. It is not so apparent that injustice has been done in this respect as to warrant interposition on our part. .

Among the checks offered by plaintiff, and which the jury found were partnership matters, was one for §1,474.34, which the plaintiff stated was all for money furnished on account of the partnership except §100, which latter sum was in payment of a loan made to him hy appellant some months before. The plaintiff in his testimony also stated that defendant had at one time put in and shipped with the partnership cattle two cows, and that it had been usual when he had stock to ship to put it in with partnership cattle and to get what it sold for, the plaintiff taking no profit on it, and that these cows netted §84.39, which plaintiff had received but never accounted for. He had kept all funds received from the sale of stock, and in fact all partnership funds, in his own name.

The jury in their special verdict made no reference to this item nor to the item of §100 embraced in the check for §1,474.34, and from a memorandum returned with their verdict it appeared that neither of these items were taken into account in making up their verdict.

The court made it a condition of refusing the motion for new trial that the plaintiff should file a written stipulation that the defendant would be entitled upon a settlement of the partnership affairs to credit for these two items of $100 and §84.39, treating the latter as a partnership item.

It is now contended that these items were proper credits to be allowed defendant in this suit, and that the court had no authority to treat them otherwise; in other words that the verdict in this case should have been reduced by those sums. As to the §100 the objection is not well taken. It was not allowed by the jury on either side, but as it was embraced in the check which by the special finding was determined to be a partnership affair, it was proper that defendant should be protected to that amount; and as the special finding was faulty in not stating that the amount should be deducted from the check, and as the only value of the special finding was to settle what was included in the general verdict, it is clear that by the stipulation the rights of defendant in this respect were effectually perserved, and there is no just cause for complaint. As to the item of $84.39 there is more difficulty7. The jury evidently regarded it as pertaining to the partnership and under the instructions of the court did not take it into account.

The special finding of partnership items referred only to those presented by plaintiff, the instruction to make a special finding being limited to the items sued on.

The plaintiff was apparently willing to allow it as a credit against his claims, many of which were found to belong to the partnership. It is not perfectly clear whether it was in a legal sense an individual matter or not. _ The only statement we find in regard to it is in the plaintiff’s evidence, and he merely says that the cows were put in and shipped with partnership cattle, and that in such cases the defendant always got the net result of the sale, the firm taking no profit. Presumably7 there was some understanding between the partners to this effect, as there often is as to such matters as, for example, where members of a trading or mercantile firm take goods for their own use at cost, the firm receiving no profit. Whether this was a mere perquisite of the partner or whether it was the real understanding that stock so put in did not become partnership property7, is not easy to say, from the evidence.

The jury having considered the item as pertaining to the firm, and the court having so treated it, and the rights of the parties having been made certain and secure by the stipulation, we can not say that the conclusion reached is so manifestly wrong as to warrant xis in reversing the judgment for that cause alone. No other errors are pressed upon our attention by the brief, and the judgment will be affirmed.

Judgment affirmed.


text:
    The Toledo, St. Louis & Kansas City Railroad Company v. Jesse Kid.

      Railroads — Ejection of Passengei—Damages—Special Findings— Namier of—Discretion—Remarles of Counsel.

    1. This court, upon a review of the evidence, sustains a verdict of $300 for the plaintiff in an action to recover damages for having been wrongfully put off a moving train, some distance from a station, by a conductor of the defendant company.
    2. It is within the discretion of the trial court to place a reasonable limit upon the number of interrogatories for special findings to be submitted, to the jury.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Shelby County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Wiley & Neal, for appellant.
    We understand the law to be well settled that exemplary damages can not be allowed unless actual damages are shown, and not then unless the injury inflicted was wilful or malicious. T. H., A., & St. L. R. R. Co. v. Vanatta, 21 Ill. 188; C. & A. R. Co. v. Roberts, 40 Ill. 503; City of Chicago v. Martin, 49 Ill. 245; Hawk v. Ridgway, 33 Ill. 475; Pierce v. Milloy, 45 Ill. 189; T., P. & W. R. R. Co. v. Patterson, 63 Ill. 304.
    Mr. Anthony Thoenton, for appellee.
   Wall, P. J.

The appellee recovered a judgment against the appellant for §300, for having been put off a train by the servants of the appellant. The case made by appellee was, in substance, that he got on the train at Herrick, intending to go to Dresser, a distance of about four miles.

When the conductor came to him, he tendered fifteen cents, all the money he had, saying he wished to get off at Dresser, and was told by the conductor the train would not stop there and that he would have to go on to Bamsey. Appellee replied he wanted to go to Dresser only, and was then told that he must get off, to which he objected; but the conductor took him by the arm and led him through the car to the rear platform and forced him to get off, in doing which he fell and hurt himself severely. The train was then about one-fourth of a mile from Herrick and was moving at the rate of five or six miles per hona-. Appellee is to some extent corroborated by other persons who were in the car and who saw and heard what took place, and is contradicted by the conductor as to what occurred on the platform.

It appears that Dresser was not at that time a regular station though trains frequently stopped there (and in fact this train stopped there on that trip), and appellee, on applying to the agent at Herrick for a ticket, was informed that tickets were not sold to that place but possibly the train would stop there. Appellee, who had been at work at Dresser and who had noticed trains stopping there, seemed to be willing to take the risk. In view of all the evidence we think there is no doubt that he was compelled by the conductor to get off, whether'he was actually pushed off or not, and that in so doing he was quite seriously injured. According to some of the witnesses the conductor remarked it was a wonder he had not broken his neck. The conductor’s version is that he told appellee he would check the train but before he could do so appellee jumped off, and that he said it was very foolish for a man to do such a thing. We are inclined to think the evidence sustains the verdict upon all material points.

It is quite certain the plaintiff was léd through the car by the conductor and was ordered to get off. This substantially supports the allegations of force and violence in the declaration, and if the plaintiff, upon such a state of facts, did try to jump, and in doing so unskillfully, was injured, the defendant, having induced the act by its own wrong, must be held for the consequences. The damages are not unreasonable in view of the injury and the indignity sustained.

It is assigned as error that the court refused to give the following instruction,

“The jury are instructed that if you believe from the evidence that the defendant, by its conductor, ejected the plaintiff from its train at a point other than a regular station, and that such ejection was not wilful or malicious, then the plaint-jiff can only recover such damages as he has proven, and if the plaintiff was not injured you can give only nominal damages.”

It was properly refused. Upon the undisputed facts pHintiff was entitled to more than nominal damages. He was by force compelled to go out of the car in the presence of other persons, and was unlawfully put off the train, and it is not doubtful that he received serious bodily harm. The act of the conductor in thus ejecting him from a moving train at a point one-fourth of a mile from a station was not only illegal but reckless. The plaintiff was exposed to great danger, and if there were no other element of damages than such exposure, the allowance ought to be more than merely nominal, C. & A. R. R. Co. v. Flagg, 43 Ill. 367; C. & N. W. Ry. v. Chisholm, 79 Ill. 589.

The following instructions for plaintiff are objected to :

“ 3. If the jury believe from the evidence that the plaintiff was forced off of the train by the defendant, at a place other than a regular station, and received injury therefrom, and this was done by the servants of the defendant, that then the defendant is liable for any injuries sustained by the plaintiff, even though he may not have paid any fare.
“4. If the jury believe from the evidence that the plaintiff was, by the servants of the defendant, forced from the train while the same was running, then the jury should assess the plaintiff’s damages, if he has sustained any, and in fixing the damages the jury should consider all the evidence, the manner in which the plaintiff got off of the train, and the suffering and pain of the plaintiff, as shown by the whole proof.”

There was evidence upon which to base these, and there was no error in giving them. The force and violence necessary to compel plaintiff to get off have already been referred to and need not be repeated.

It is also objected that the court erred in refusing to submit the interrogatories fSTos. 2, 3, 5 and 6 to the jury as requested by the defendant. The court submitted those .numbered 1, 4 and 7, and we think they covered all the points, upon which a special finding was necessary. The second was contained in the seventh. The answer to the first made it unnecessary to answer the third. The fifth was not controverted, and the sixth was not necessary in view of the evidence.

While the statute under which interrogatories are authorized does not in terms impose a definite limit as to the number and character of the special findings thus to be called for, yet it must be implied that there shall be a reasonable limit in every case, and unless it appears that the limit imposed by the trial court probably affected the party complaining in some material degree, such ruling ought not to be ground for reversing a judgment.

It is objected that the language of counsel for plaintiff in his closing argument was calculated to prejudice the jury and to produce an unfair and unjust verdict. We think there is nothing substantial in this objection, especially in view of the result.

Ho other errors are assigned. The judgment will be affirmed.

Judgment affirmed.


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    Edward N. Cooper v. Jonathan E. I. G. Cooper.

      Wages—Exchange of Property—Payment—Burden of Proof—Evidence —Instructions—Practice.

    1. In an action to recover an amount claimed as wagés and the purchase price of a tract of land that was to have been paid for with chattel property! it is held; that the evidence sustains the verdict for the plaintiff; that there was no error in the admission of evidence; and that the burden of showing payment was on the defendant.
    2. This court will not reverse because of the admission of the record of a mortgage in evidence, there having been no offer to produce the original, where the objection at the trial was merely general.
    [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of Clark County • the Hon. C. B. Smith, Judge, presiding.
    Messrs. Goldeh & Hamill, for' appellants.
    Mr. S. S. Whitehead, for appellee.
   Per Curiam.

This was a suit brought by appellee against appellant to recover an amount claimed to be due for wages, and also for the purchase price of a tract of land sold by the latter to the former, and to be paid for with mules and other articles of chattel property. There was a verdict and judgment for appellee of $100.

We have carefully examined the evidence and are satisfied that it fully sustains the finding of the jury.

It is urged that the court erred in permitting appellee upon the trial to show the size and value of the mules received by him in the land trade, for the reason that “the only basis of recovery on that branch of the case must have been the value of the specific articles not received by the appellee and not delivered by the appellant.”

This would be true if no dispute had arisen as to what articles were to he taken by the original contract made between the parties, but there was such dispute, and we think the evidence was proper in order to assist the jury in determining what was the original agreement, and which one of the parties was giving the correct version of it. It is urged that the court erred in admitting in evidence the record of a mortgage without any offer to produce the original.

Upon referring to the record we find a general objection without in any way indicating the nature and character of the objection to the evidence offered. There was no error in this. Neither was there error in the court instructing the jury that when appellee had shown by a preponderance of the evidence that he worked for appellant he would be entitled to recover unless appellant could show by a preponderance of the evidence that he had paid for such work.

The burden of proof rests upon the party asserting an affirmative proposition. The appellee asserted that he had worked for appellant and that there was due -him therefor a certain amount: To meet and defeat such a proposition,' appellant sought to show under his plea a general issue, as he properly might, that he had made full payment therefor. Such an assertion so made by the appellant would be an affirmative one upon his part, and he would be required to sustain it by a preponderance of the evidence.

The court instructed the jury that “If you are satisfied appellee sold appellant land to be paid for in certain things^ the appellant must show that he paid for it,” and it is insisted such instruction violates the rule that when a deed offered in evidence by a plaintiff in a suit recites the full payment of the consideration, it is prima facie evidence of the fact.

The deed in this case recited the consideration to have been paid in money, but the evidence disclosed that it was not to be money but articles of personal property, and when that fact appeared we think the burden of showing that such articles had been delivered in accordance with the terms of the contract would devolve- upon appellant.

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

Judgment affirmed.