text:
    Ella M. Williams et al. v. Isaac D. Fletcher.

      Partnership—The Investment of Money in the Business of Another— Trust—Agreement for Priority of Payment of Creditor—Evidence.

    1. The delivery of a sum of money in trust to a person engaged in business, for investment therein, upon an agreement that it shall remain a specific time, and that a certain share of the profits shall be paid for its use, does not create a partnership.
    2. What one party to a written contract says or writes to another, can not affect a third party without notice.
    3. Nor is the testimony of such parties as to what they understood su4ck contract to mean, or their motives in its creation, competent to affect its construction as between themselves or such third person.

      4. In a controversy touching the ownership of a sum of money lodged in court to the credit of certain shares of stock of an insolvent corporation, this court holds that it belongs to the pledgee, the party claiming it not being a partner of the pledgor.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynst Gabhett, Judge, presiding.
    Messrs. Peckham & Brown, for appellants.

      Did the tripartite agreement of June 12, 1884, so change the relation of parties as to give Isaac D. Fletcher the right to appropriate the dividend which would otherwise come to Williams, as the poor remnant of the small fortune which he invested with Horace Fletcher ? Isaac D. Fletcher, in his deposition, says that it did. The counsel for Isaac D. Fletcher insists that it did, and what is much more important to us= the Superior Court of Cook county agreed with them, nevertheless, we venture to differ from them all. We have two reasons for it.
    The first is, that the tripartite agreement by its terms was applicable only to the business owned by Horace Fletcher and Williams. When that business was transferred to the Japanese Development Company, which, in contemplation of law, and to a great extent, in fact, was an entirely different person from Horace Fletcher and Williams, that agreement expired.
    In consenting to the transfer, Isaac D. Fletcher must be taken to have accepted, instead of the security given him by the tripartite agreement, such security as was embodied in the constitution of the company, namely, the assumption by the company of a part of Horace’s debt to him.
    But more important still, and conclusive to our minds, as an objection to the proposition that the tripartite agreement affects the present controversy, is the fact that the tripartite agreement did not affect, and was never intended by any of the parties to it to affect, the indebtedness of Horace Fletcher to Isaac D. Fletcher existing before the investment of Williams.
    A contract means what the parties contracting understood it to mean when they made it, unless said meaning is plainly contradicted by its terms. See 1 Parsons on Contracts, star pg. 495.
    We contend that this tripartite agreement meant simply this: That as to all sums of money advanced to the joint business of Fletcher & Williams, that is, to the business' in which Williams was at least a quasi partner, Isaac D. Fletcher should be entitled without demur upon the part of Williams to repayment before any claim should be made, by Williams for his $20,000, or any portion thereof. That the agreement was not so limited in the most express terms, was because Williams did not know, as he has repeatedly testified, and did not suspect, that there was any indebtedness of Horace Fletcher to his brother antedating his (Williams’) own investment. That there was such an indebtedness was known to Horace Fletcher and to Isaac D. Fletcher, but they put such a construction upon the contract as precludes them, or either of them, from asserting successfully that they signed the contract with any idea that it referred to such indebtedness.
    Messrs. Flower, Remy & Holstein and H. Musgrave, for appellee.
    We contend:

      First, that appellee is in the position of a dona fide purchaser of the stock in question, without notice of any equities on the part of Williams.

      Second, that even had Williams originally any right to the 200 shares of stock, his conduct, and the circumstances of the case, estop him from asserting it against Isaac D. Fletcher, the appellee.
    The only thing in the record tending to show that Isaac Fletcher had any notice of Williams’ rights, if any, to this stock, is the incompetent, hearsay testimony of Williams, that he understood from Horace Fletcher that his brother, Isaac Fletcher, was familiar with all his business transactions. ¡Nor was there anything in the relations of the parties, or the circumstances surrounding the transaction, which should have put appellee on inquiry.
    The rule is well settled in this State, contrary to the rule in some States, that the pledgee of negotiable instruments, receiving the same before maturity in good faith, and without notice of equities as collateral security for an antecedent debt, without more, is a holder for value in the usual course of business. Manning v. McClure, 36 Ill. 490; Mix v. Bank, 91 Ill. 20.
    And the doctrine has been extended by our Supreme Court to quasi negotiable instruments and personal property. Peters v. Elliott, 78 Ill. 321.

      In Butters v. Haughwout, 42 Ill. 29, the court, per Breeze, J., referring to the case of Manning v. McClure, supra, says: “In that case it was held, after elaborate argument by able counsel, and full consideration, that a note assigned before due to secure a pre-existing debt, passes to the assignee discharged of latent equities ; that the assignee occupies the same ground as a honafide purchaser for a valuable consideration paid at the time of the assignment. A reference to the authorities there cited fully establishes this doctrine, and we have no desire to "abandon it. We think it consonant with reason and justice. And, after the most serious consideration, we have been unable to perceive any distinction, in principle, between commercial paper which is made the subject of transfer and goods and chattels. The case of Manning v. McClure recognizes to -the fullest extent the principle that receiving a negotiable note before its maturity, in payment of a pre-existing debt, -will exclude all equities between the original parties to the note, the assignee having no notice of these equities, and this is in harmony with section 9 of the act relating to negotiable instruments. Scates’ Comp. 292.
    “ Why the rule should not be the same in the transfer of chattels, we are at a loss to perceive. The reason why it should not be the same in the transfer of chattels, as given by counsel for defendants in error, is that chattels pass in the market on the title of the vendor, and if he has none, he can confer none by a sale or transfer to his vendee. But, it may be asked, how is a purchaser of a chattel in the possession of his vendor to know he has no title, in the absence of circumstances to excite suspicion so as to put him on inquiry? How is he able to know his vendor obtained the goods by fraudulent representations? Possession of goods is one, and a strong indicium, of ownership, and, if surrounding circumstances cast no suspicion on the character of this possession, why should not a purchaser in good faith of the property, without notice of any latent equity, he protected in the title thus acquired?”
    Assuming, then, that appellee stands in the position of a liona fide purchaser, and that Williams is the owner of the 200 shares of stock (which we do not concede), we contend he is estopped from asserting his right to it as against appellee.

      In T., W. & Ry. Co. v. Gilvin, 81 Ill. 517, it was said:
    “ There are some eases where the true owner of property is estopped, as against third parties, from asserting his title to the property: in cases where, by consent or acquiescence of the real owners, the property is permitted to be in such situation that a stranger has a right to assume that the title is in another, and does so assume, and on the faith of such evidence of ownership in the apparent owner, invests money or property or assumes some liability.”
    There are a multitude of cases bearing on this general doctrine. The law is familiar, and it would answer no useful purpose to cite the authorities, for each case when presented to the court must be decided upon its particular facts.
    We refer the court generally to Bigelow on Estoppel (4th Ed.), 547; Morawetz on Private Corporations, Secs. 185-190; Colebrooke on Collateral Securities, Sec. 263, et seq.; Brundage v. Camp, 21 Ill. 330; Butters v. Haughwout, 42 Id. 29; M. C. R. R. Co. v. Phillips, 60 Id. 190; Kranert v. Simon, 65 Id. 344; Otis, Adm’r v. Gardner, 105 Id. 436, 444; Moore v. Met. Nat. Bank, 55 N. Y. 41; Driscoll v. West Bradley C. M., Co., 59 Id. 96; Armour v. M. C. R. R. Co., 65 Id. 111; Simpson v. Del Hoyo, 94 Id. 189.
    Before the execution of the tripartite agreement Horace Fletcher was the individual debtor of both Isaac Fletcher and Williams. As to the enforcement of their claims against him, they stood on an equality. But as to benefits to be derived, Williams was in a far superior position. It was considered only fair that under these circumstances Isaac Fletcher should have priority of payment. Hence the tripartite agreement. There was some loose talk and correspondence about this being an acknowledgment of partnership; but it was such only to the extent that Williams had an interest in the profits Williams says that the money was invested at no risk to him. and that Horace was personally responsible for its payment. As between themselves, they were not partners. Lintner v. Millikin, 47 Ill. 178; Adams v. Funk, 53 Ill. 219.
    The most strenuous contention of counsel is that the tripartite agreement did not refer to money loaned to Horace by Isaac Fletcher prior to the investment of Williams. In order to avail themselves of this position, appellants must show that the indebtedness for which this stock is held as collateral security was incurred before October 18, 1883.
    The agreement itself refers to all money advanced by Isaac before that date; and there is no dispute but that the money advanced before the investment of Williams was put into the business from which he was to derive profits. Ignoring the terms and -construction of the agreement, it becomes a question of fact whether Williams had knowledge, before the execution of the tripartite agreement, that Horace was indebted to Isaac when the trust paper of October 18,1883, was signed. Horace swears that Williams did have such knowledge. Williams denies it. The most that Williams claims is that such was his understanding. He made no inquiry. Horace Fletcher, in letter to Williams of July 3, 1884, urging him to sign the tripartite agreement (this agreement, although dated and forwarded to Williams, June- 12, 1884, was not signed until some weeks afterward), says, “ That First Japanese Company signed a similar one,” which indicated that Horace was indebted to Isaac before Williams’ investment. The circumstances surrounding the transaction all indicate that Williams had knowledge of the true situation.
   Gary, J.

In 1883 Horace P. Fletcher was a merchant in San Francisco, dealing in Japanese goods, under the business name of Ichi Ban. He then owed his brother, Isaac D. Fletcher, upwards of §30,000, which was invested in that business.

In July of that year Eldred O. Williams, under whom appellants claim, and to whose rights it is admitted they have succeeded, was in San Francisco, went into the Ichi Ban store, and from that began an acquaintance which resulted in the investment by Williams of §20,000, upon -the terms shown by the following agreement:

This agreement, made this eighteenth day of October, eighteen hundred and eighty-three, by and bet-ween Horace P. Fletcher, of the city and county of San Francisco, State of California, and Eldred C. Williams, of the city of Boston, county of Suffolk, State of Massachusetts,
“ Witnesseth, that whereas, the said Williams is possessed of the sum of twenty thousand dollars TJ. S. lawful money, which he is anxious to invest in commercial business, and whereas he is inspired with confidence in the business ability and methods of said Fletcher, said Williams has on this day and date delivered to said Fletcher the said sum of twenty thousand dollars in trust, for the investment of the said sum to the best advantage, and to allow the same to remain in the hands of said Fletcher for the term of five years from the first day of January, eighteen hundred and eighty-four.
“The said Fletcher, in accepting the trust, agrees to invest the said twenty thousand dollars in his business in San Francisco, called Ichi Ban, with his own capital, and to use it all to the best advantage for the purpose of earning profit on the investment for the advantage of the said Williams, the same as if for himself. The said Fletcher agrees to credit to the account of said Williams the earnings of the said twenty thousand dollars, in proportion to the whole amount of money invested in the business.
“The proportion of the capital of the said Fletcher shall be determined by an inventory of the stock and other assets of the business, which it is agreed shall be taken at some time during the months of January, February or March, eighteen hundred and eiglxty-fonr.
“ It is also agreed that the said Williams shall be entitled to draw against his prospective earnings the sum not exceeding ten per cent, per annum of his investment, in quarterly installments payable on the first of April, July, October and January of each year, allowing the balance of the earnings, if there be any, to accumulate in the business for its benefit.
“ It is agreed that the rate of interest which capital shall draw from expense shall not exceed seven per cent.-per annum, and the compensation for services of the said Fletcher shall not exceed the sum of six thousand dollars per annum.
(Signed) “ Eldbed 0. Williams.
“Horace P. Fletcher.
“ Signed in presence of A. E. Denison.”

Williams testified that before he made the investment Fletcher told him that he had §100,000 of his own invested in the business; that there were no liabilities of any kind outside of some $3,000 or $3,000, being unpaid rent and salaries due employes. That he did not see the books, and did not know and had no reason to suppose that he was indebted to Isaac D. Fletcher. He (Horace) testifies that Williams did know of such indebtedness to some amount; that he told him before he gave him the money ; but when pressed for details he can not remember any conversation.

The testimony of Williams as to what occurred between himself and Horace before the investment, is so far corroborated, that if the decision turned upon that, the version of Williams ought to be accepted. There is, however, nothing in the whole case indicating that Isaac D. Fletcher had any notice of the negotiations or inducements that preceded the investment. The next step was the following agreement:

“Whereas, Horace Fletcher is doing business at San Francisco, California, and also at Chicago, Illinois, in articles of Japanese manufacture and others of a kindred nature; and whereas, one Eldred C. Williams, of Boston, Massachusetts, has advanced to said Horace Fletcher certain capital for use in said business, for which use the said Wi.liams receives certain of the profits thereof;
“And whereas, Isaac D. Fletcher, of the city of Hew York, has advanced and loaned to said Horace Fletcher certain money's and credits, and has agreed with said Horace Fletcher to loan him still other and further money and credits in said business;
“And whereas, it is the design and intention of each of the parties hereto that the said Isaac D. Fletcher, as between the parties,hereto, shall be entitled to and have priority of payment of and for any and all said sums of money or credits so loaned, or which shall hereafter be loaned by him to said Horace Fletcher, over said Eldred C. Williams, for payment of any sum or sums advanced by him, or which shall hei'eafter be advanced by him, said Williams, to said Horace Fletcher;
“ How, this agreement, made this twelfth day of June, one thousand eight hundred and eighty-four, between Horace Fletcher, of San Francisco, California, party of the first part, Eldred C. Williams, of Boston, Massachusetts, party of the second part, and Isaac D. Fletcher, of the city of Hew York, party of the third part, in consideration of one dollar, lawful money, each to the other in hand paid, at or before the ensealing and delivery of these presents, the receipt whereof is hereby severally acknowledged,
“ Witnesseth: That the said parties of the first and second parts hereto, for themselves, tlieif executors, administrators or assigns, covenant and agree to and with the said party of the third part hereto, his executors, administrators or assigns? that the said party of the third part for any and all sums of money, credits, or things in action which now have been, or hereafter may or shall be by him, the said party of the third part, loaned or advanced to the said party of the first part, during his, said party of the first part’s continuance in the business aforesaid, rightfully claim and have, as between the parties hereto, priority of payment thereof over the said party of the second part, for any sums of money, credit, or things in action by him, the said party of the second part, loaned or advanced, or hereafter to be loaned or advanced to the said party of the first part.
“ The intent of this instrument being to render any claim of the party of the second part, for all moneys or credits advanced, or to be hereafter advanced as aforesaid, subordinate and subject to the payment of all money or credits, or either of them, loaned or advanced by the said party of the third part to the party of the first part, as aforesaid.
“ In witness whereof, the parties hereto have hereunto set their hands and affixed their seals, the day and year first above written.
(Signed) “ Horace Fletcher,
“ Eldred 0. Williams,
“Isaac D. Fletcher.”

The effect of this agreement the appellants seek to limit by the testimony of Williams, before stated; by some letters of Horace, in which he stated to Williams that he had made arrangements with his brother for some credits for the benefit of the business, and that the paper was simply an acknowledgment of partnership to avoid any possibility of complication in case of his death; and by the further testimony of Williams that Horace told him that he had within a month, on the strength of it, borrowed $12,000 or $20,000 from Isaac, and he knew of no other indebtedness.

There is still the same absence of any evidence of notice to Isaac of these letters and further conversation between Horace and Williams, as has been alluded to before, with reference to what preceded the original investment.

Upon the agreement itself, the argument of the appellants that it should be limited to money advanced by Isaac to the joint business of Horace and Williams, lacks the foundation of any joint business to which it could apply. There was no partnership between them. 1 Lindley on Part., 23 et seq.

By the agreement of October 18,1883, between Horace and Williams, the latter had, under an affluence of language that Micawber and his wife would not have disdained, become a creditor of the former for $20,000 on a credit of five years, without interest, but to be paid for the use of his money such per cent, as the profit of the business of 1 chi Ban might be, reckoning interest upon capital not more than seven per cent, and the services of Horace not more than $6,000 per annum. In anticipation of the profits, Williams might draw $500 every three months; the residue of his share of the profits to remain, for the benefit of the business, to the end of the five years.

What knowledge Isaac had of the relations of Horace and Williams is left to inference; there is no evidence upon the subject; whatever Horace said or wrote to Williams is no evidence per se against Isaac. And the testimony of neither Horace nor Williams as to what they understood either of the agreements to mean or the motive for its execution, is competent to affect its construction, even between themselves, much less as to Isaac. Taylor’s Ev., Sec. 1132.

The agreement of June 12, 1884, is then to be taken literally. Before September 23,1884, Horace had started in Chicago anotherBan, called the Nee Ban, and on that day wrote to Williams that he had “ decided to stock them,” hy which he meant a corporation, for $200,000, and should subscribe for the sum which he could carry himself, and also for the interest of Williams, and hold it as trustee, the same as he did the funds of Williams in trust. October 18, 1884, Williams wrote to Horace: “You have my full permission, so far as I am concerned, to sell the business and property of Ichi Ban and Nee Ban to the Japanese Development Company, and receive in payment stock in the Japanese Development Company.”

When that company was organized it assumed the indebtedness of Horace and of the Bans, except $40,000 owing by Horace to Isaac. Horace, upon such organization, received a certificate for 874 shares of stock, 200 of which represented Williams’ $20,000, and indorsed it in blank to Isaac as security for that $40,000. Still there is no evidence of any notice to Isaac of the relations between Horace and Williams, beyond what is shown by the agreement of June 12, 1884, to which th'e three were parties.

The Japanese Development Company failed, and in winding it up there is now in the Superior Court $1,013.30 to the credit of 200 shares of that stock.

The contest is whether Isaac or the appellants, having succeeded to the rights of Williams, shall have the money.

It is not necessary to consider in this case whether one taking as collateral security for a precedent debt has the same rights as if the security were for a new advance, for the appellants are not in a position to claim that their property or the property of Williams has been pledged. Williams had no interest in the property or business of the Bans. He had only a claim upon Horace for his $20,000 and such profit as Horace might make by the use of the money. He had no control or voice in the management of the business. He had no insurable interest. Lycoming Ins. Co. v. Barringer, 73 Ill. 230.

The cases in this State, without going out of it, are quite sufficient to establish the proposition that there was no partnership between Horace and Williams. Smith v. Knight, 71 Ill. 148 ; Adams v. Funk, 53 Ill. 219 ; Lintner v. Millikin, 47 Ill. 178; Niehoff v. Dudley, 40 Ill. 406.

There being no partnership, Horace was free to dispose of the property of the Bans.

He turned it into stock. Then he was free to dispose of the stock, not fraudulently, but in the ordinary course of business. He pledged it for a debt, which, by agreement of Williams, was to have priority over any claim of Williams. Williams, and those claiming under him, have no standing from which they can complain of that disposition of the property of Horace. It is true that Horace in his testimony says, as quoted in the abstract:

“When I arranged with my brother for these advances of finances, he told me that he should require papers ; inasmuch as our agreements were in no regular order, that he should require papers from these individuals, and he said if they hold the relation to the concern of partners there is no reason why they should not sign the papers to that extent, and I told him there would be no difficulty whatever, and he made advances on my promise that I would get these papers.”

And with reference to Williams:

Q. Then you were to hold the money in trust for him? A. Ho, I was to put the money into the business and handle it the same as I did my own money, but I was not to be interfered with at all, and should have nobody to consult as to the management of the business.
“Q. He was to be a partner and not a partner? A. He was to be a partner in the profits and losses of the business, but not in the management. That was thoroughly well understood in the beginning.”

But there is no evidence of any agreement between Horace and Williams, other than that of October 18, 1883, before recited, and the legal effect of this is not changed by such testimony. By it Williams was not liable for losses, or at most, not beyond the §20,000. It may be that he risked that upon the success of the business. The agreement of June 12,1884, between Horace, Williams and Isaac, in one place speaks of Williams’ money as capital advanced “for use in the business, for which use the said Williams received certain of the profits thereof,” and in another, as “ sums of money * * * loaned or advanced” to Horace. On the whole case it is clear that in law there was no partnership between Horace and Williams, and that none of the parties regarded them as sustaining such relations to each other as in law constitutes a partnership, whatever they may have thought was the legal effect of their real relations.

The decree awarding the fund in court to Isaac D. Fletcher is right.

Garnett, P. J., having decided this case in the Superior Court, takes no part in this decision.

Decree affirmed.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    P. Gillette et al. v. Gideon Stoddart and J. S. Harley.

      Sales—Fraud—Want of Change of Possession—Remedies—Creditor's Bill—Receiver.

    1. A transfer of a stock of goods without an obvious change of possession, is fraudulent as to creditors.
    2. In the case presented, it is held: That executions might have been levied on the goods; and that the evidence did not warrant the decree against the corporation which claimed the goods.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Arthur B. Camp and Grant Newell, for appellant.
    “An insolvent debtor may sell his property, and if the transaction be an honest one, in good faith, and for an adequate consideration, it matters not how many creditors may thereby be prevented from reaching the property.” Wood v. Shaw, 29 Ill. 444; Miller v. Kirby, 74 Ill. 242; Waddams v. Humphrey, 22 Ill. 661.
    “And if the motive of an act may be traced to an honest and legitimate source equally as well as a corrupt one, the former should be preferred.” Bowden v. Bowden, 75 Ill. 147; McConnell v. Wilcox, 1 Scam. 344.
    “ To impeach the sale of personal property, it is necessary to show that both vendor and purchaser participated in the fraud.” Brown v. Riley, 22 Ill. 46; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Bowden v. Bowden, 75 Ill. 143; Ewing v. Runkle, 20 Ill. 449; Herkelrath v. Stookey, 63 Ill. 487.

      “ Fraud against creditors in a transfer of the debtor’s property can not be presumed, but must be proved.” Hatch v. Jordan, 74 Ill. 414; Wright v. Grover, 27 Ill. 430.
    Delivery being complete, at least to the Western Harness Company, before the judgments were obtained by the complainants, they can not avoid the sale, or complain of any constructive fraud, and only of fraud in fact. Cruikshank v. Cogswell, 326 Ill. 368; Shove v. Farwell, 9 Ill. App. 256.
    Messrs. Miller, Leman & Chase, for appellees.
    If it were conceded that McGuffin acted, in taking possession, under the order and on behalf of the assignees, Ida H. and M. M. Gillette, the evidence shows that there was no such substantial and exclusive change of possession on these transfers as was necessary. Thompson v. Yeck, 21 Ill. 73.
    There was no change of sign ; but the same' sign which the debtor had used since starting the business remained out, and has never been changed. P. Gillette, the assignor and debtor, continued to be around the store during the alleged possession of McGuffin, and retained his key to the store. McGuffin had previously been in Gillette’s employ as “ general clerk,” and had the same line of duties to perform as the acts done by him during the time of his alleged possession. The business went on as usual during McGuffin’s alleged possession, but it was entered in the same books of the debtor, Gillette, in which his prior business was entered. There was, so far as shown, no discharging of employes by Gillette on selling out, nor any hiring by McGufBn or the Western Harness Company on buying the business; nor any change in the relation of employer or employes on account of the transfer, as would naturally occur if it was actual and dona fide. The property came right back into the possession and control of the debtor, Gillette, and the business has been run by him.
    There is nothing in this so-called transfer or in the way it was carried out, to apprise the world of it. So far as appearances go, so far as the conduct of this business is concerned, and so far as the public, who may deal with this concern, can see, there is no change whatever in the business. It is in all respects, since these transfers, the same business, conducted by the same man, in the same plane, under the same business name and sign, and in the same way, and for his own benefit, precisely as before these transfers were made.
   Moran, J.

This is an appeal from a decree of the Superior Court, finding that certain goods, which appellants claim had been in good faith and for a valuable consideration assigned by said P. Gillette to said Ida H. and M. M. Gillette, and by said last named parties to said Western Harness Company were the goods of said P. Gillette and liable for his debts, and ordering said goods to be turned over to a receiver appointed by the court in a proceeding by creditor’s bill.

We are not disposed to enter upon a discussion of the evidence as to the question whether any actual fraud was perpetrated or intended in the transfer from P. to Ida H. and M. hi. Gillette. Such discussion would serve no useful purpose, as we should be obliged to sustain the decree of the court below in applying the goods to discharge the judgments against P. Gillette upon the ground that no sufficient delivery of the goods from.him to Ida H. and M. M. Gillette or to the Westevn Harness Company is shown to have been made. There was no change of possession of the goods at the time of the alleged assignment. The debtor, Gillette, remained at all times in the visible possession of the store and the stock, and the signs under which he had been carrying on the business for himself continued unaltered upon the storefront. Under such circumstances the goods were at all times subject to an execution against P. Gillette.

Possession of personal property is one of the strongest indications of ownership, and in order to make any assignment or transfer of such property effectual as against creditors, there must be an obvious change of possession, one that is observable, or, as it is sometimes expressed, visible; such that the appearances would indicate to an observer that there had been a change. Weeks v. Prescott, 53 Vt. 57.

Unless such visible change of possession accompanies the transfer or sale, the same is void per se as to creditors. Thompson v. Yeck, 21 Ill. 73.

Appellees need not, therefore, have filed their bill,' but could have levied their executions on the goods in the hands of the judgment debtor. The court granted relief on the bill, the question as to jurisdiction not having been raised, and the decree must be affirmed so far as it finds the title to the goods in said P. Gillette, and directs the disposal thereof by the receiver. We are of opinion, however, that.there is nothing in the record which warranted the court in entering a judgment against the Western Harness Company for $5,000 or for any other sum. The claim on the part of that corporation that the goods had been transferred to it, did not authorize a judgment against it for the value of the goods.

The utmost extent to which it could be held would be to account for the goods and pay for such as it had converted to its use, but there is no foundation in the evidence for even such relief against it, for it is not shown that any of the goods were disposed of by said corporation. So much of the decree as gives judgment against the said Western Harness Company for $5,000 will, therefore, be reversed and the decree will be in all other respects affirmed.

The Western Harness Company will be allowed the costs of its appeal to this court.

Reversed in part and affirmed in part.


text:
    Leonard Hodges v. Elizabeth Bearse.

      Personal Injuries—Elevatoi—Evidence—Question for Jury.

    Upon appeal from a judgment awarding damages for personal injuries this court declines to interfere, there being evidence in the record tending to show that the elevator in question was not properly constructed, and that the defendant, by the exercise of ordinary care, might have known that fact.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the •Hon. Elliott Anthony, Judge, presiding.
    Messrs. Stiles & Lewis and Shuman & Defrees, for appellant.
    Messrs. Brandt & Hoffman and Joseph N. Barker, for appellee.
   Moran, J.

This is an appeal from a judgment recovered by appellee against appellant for injuries received by the falling of an elevator in appellant’s building, which it is alleged, was, through the negligence of appellant, improperly constructed, and in a dangerous and improper condition.

Counsel .for appellant has entered upon an elaborate disT. mission of the facts, and strenuously urges upon the court that, the evidence does not justify the inference of negligence, as against the defendant, which is necessary to support the verdict.

We have examined the evidence, and in our opinion there is proof in the record which tended to show that the elevator in question was not properly constructed, and that appellant could, by the exercise of ordinary care, have known that fact. There is but little conflict in the evidence which described the method in which the elevator was constructed, and there is evidence of witnesses of experience in the construction and operation of such passenger elevators which certainly tends to support the theory of negligent and improper construction of the elevator in question.

Such evidence being in the case, it was the province of the jury to determine upon its sufficiency. By the conclusion reached by them,-this court is concluded under the circumstances in the case, unless some error of law intervened.

We have carefully considered all the legal questions raised by counsel, and we are convinced that there is no error in the record which authorizes the interference of this court with the judgment. It will therefore be affirmed.

Judgment affirmed.


text:
    William J. Fagan v. Valentine Fries.

      Slander—Privilege of Witness.

    Words spoken by the defendant in giving his reason for discharging the plaintiff from his employment, in an action to charge the defendant with damages for such discharge, are within the privilege of the witness and can not be made the basis of an action for slander.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Oook County; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. William H. Condon, for appellant.
    The statements of a witness, to be privileged, must be perti_ nent, and an irrelevant remark, maliciously made, to gratify his anger or malice, is an abuse of a witness’ privilege which deprives him of any protection which he otherwise might have. White v. Carroll, 42 N. Y. 161; Allen v. Crofoot, 2 Wend. 515; Barnes v. McCrate, 32 Maine, 442; Calkins v. Sumner, 13 Wis. 193; Lea v. White, 4 Smed. 111; McLaughlin v. Cowley, 129 Mass. 316; York v. Rose, 2 Gray, 282; Smith v. Howard, 28 Iowa, 51; Storey v. Wallace, 60 Ill. 51; Morgan v. Booth, 3 Bush. 480.
    If a false and groundless charge be made, on a privileged occasion, but without reasonable or probable cause, it should be left to the jury, if there be any other circumstance suggesting malice. Padmore v. Lawrence, 11 A. & E. 380; Odgers on Libel and Slander, 274; Clark v. Molyneaux, 32 B. D. 247; Huntley v. Ward, 6 C. B. N. S. 514.
    Messrs. Schuyler & Kremer, for appellee.
   Moran, J.

Appellant brought an action of slander for words spoken by apjjellee when giving his testimony as a witness on the trial of a law suit between them. When the plaintiff had introduced his evidence, the court, on the motion of appellee, ruled it out, and the jury returned a verdict for the defendant. The action of the court in excluding the evidence is assigned for error on this appeal. Without entering upon a discussion of the question as to whether the words complained of were in any event actionable, the ruling of the court must be sustained on the ground that the words were uttered by the appellee in his character as a witness in a case in which he was a party and appellant was his adversary, and the objectionable words were used in giving a reason for discharging appellant from his employ, when the effort was to make appellee liable in damages for such discharge. The words were certainly within the privilege of a witness, and no recovery can be had for or against the witness for using them.

The case of Hunckel v. Voneiff (Md.) 14 Atlantic Rep. 500, is an authority directly in point.

The judgment is correct and must be affirmed.

Judgment affirmed.


text:
    Joshua C. Sanders v. Walter L. Peck et al.

      Trust Deed—■Reformation and foreclosure—Redemption by Surrender of Ronds—Decision of Supreme Court—Election to Take Less than Entire Relief—Tender—Estoppel—Taxes—Interest.

    1. In a proceeding to foreclose a trust deed, this court holds that the court below, on an order of the Supreme Court remanding the case for further proceedings in conformity with its opinion, wherein it was held that certain lots might be redeemed by the surrender of certain bonds, should have allowed the redemption of a number of lots less than the number involved at the hearing in the Supreme Court, by the delivery of the proper number of bonds for the lots to be thus redeemed.
    2. The right of the appellant to enforce a release of any of the lots is based on his offer before filing his cross-bill to deliver to the trustee bonds to the amount of the schedule price of each lot. All the coupons on the bonds when tendered must be surrendered with the bonds now delivered to redeem lots.
    3. The court below properly required the cross-complainant to repay all taxes paid on the lots to be redeemed, with interest thereon from the time of payment.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. D. T. Corbin, for appellant.
    When Sanders purchased 301 lots at Riverside of the land company (January 16, 1874), the six trust deeds of the Riverside Improvement Company of August, 1870, to Page & Kimbark, had been (March 12, 1872,) released of record.
    They then apparently constituted no incumbrance on said lots; also, when Sanders purchased said lots, the trust deed of the Riverside Water and Gras Works Company of July 1, 1871, to Henry Greenebaum, had been (June 7,1873,) released of record; and it apparently constituted no incumbrance upon any of Sanders’ lots. In view of these facts, and believing he could.obtain clear title to his lots, Sanders offered (June, 1874,) to redeem them from the Jewett mortgage—in other words, offered to pay off with his railroad bonds the Jewett mortgage upon all of his lots. It has turned out that the court, in its wisdom, has since determined that the releases of the Page & Embark trust deeds, and the release of the Greenebaum trust deed, were made in fraud of the rights of the holders of the bonds secured thereby, and so has set them aside, and restored the released trust deeds. Thus it appears that Sanders is one of the first victims anticipated by the Supreme Court in Land Co. v. Peck, 11 Ill. 443, where it says: “It is very true that those subsequently acquiring interest in the property were liable to be misled, and take the premises to be unincumbered by these trust deeds, from these releases appearing upon record.” The extent of the injury to Sanders by the restoration of said trust deeds is that seventj'-five of the lots covered by the Page & Embark trust deeds (valued in the aggregate in the schedule at §40,500) are lost to him, and that 163, covered by the Greenebaum trust deed, are also decreed to be sold, so far as necessary, to satisfy the claim of Elizabeth S. Hewton.
    Of these 163 lots covered by the Greenebaum trust deed, forty-six (or forty-eight) are also covered by the Page & Embark trust deeds, so that but 117 (or 115) will be for sale trader the Gookins-Hewton decree, the others being absorbed under the Hukill et al. decree. These 115 lots at their schedule A'alue, in the aggregate, amount to §79,800.
    Thus, by the last decrees entered (July 16, 1888,) in this cause, 190 of Sanders’ lots (about two-thirds of them), valued in the mortgage schedule, in the aggregate (§40,500 plus §79,800), at §120,300, are decreed to be sold away from him to satisfy these restored incumbrances.
    How, it would seem a self-evident proposition that it is wholly optional Avith the owner of real estate, purchased with an incumbrance upon it placed there by others, whether he shall pay it off or permit the property to be sold to satisfy it. He owes no contract duty in regard to it to anybody, and the party holding the incumbrance is bound to be content-with the security which his mortgage gives.
    In this case the mortgagee (Jewett, or his beneficiary bondholders,) is in no position to insist that Sanders shall pay off this mortgage upon any of his lots, particularly the seventy-five Page & Embark lots, and the 115 other Greenebaum lots, as those lots, if not redeemed, will of course remain subject to the Jewett mortgage (so far as that remains) and so will increase the security. ,
    But the fact of facts (these prior incumbrances) that makes Sanders’ right of redemption of no value to him, makes these lots of no value to Jewett and the other bondholders. Said lots are simply cut out of the Jewett trust deed, just as they are out of Sanders’ deeds, and all who predicate their fights upon that instrument, or any other conveyance of the land company, must lose them—have lost them already. As to these lots, all are alike losers, except that Sanders’ loss is greatest of all, because he paid, when he believed the lots unincumbered, a large sum (§30,000) to the land company for the equity of redemption.
    There being, hence, as plainly appears, nothing in these much mortgaged lots for any holder óf railroad bonds, it will be observed, with some surprise, that Peck 'et ah, who stoutly resisted to the Supreme Court, Sanders’ right to redeem them, are here now insisting, with all their former vigor, that he shall redeem each and all of them. Their ¡rosition in this regard has changed significantly since these incumbrances have been restored.
    After the decision upon said releases, and that said lots were to be sold and taken from him, Sanders, first before the master, and then before the Circuit Court, insisted that, though he had offered to redeem his 301 lots from the Jewett trust deed, he could not now do so, as such redemption would not only not give him clear title to the lots, but instead, he was, by said decision, to lose a very, large number of them (75 plus 115), and he would only redeem such as he could hold as against these prior restored incumbrances.

      The master hesitatingly ruled that Sanders must redeem all his lots from the Jewett trust deed, according to his tender. His report was excepted to in this regard by Sanders, but the Circuit Court confirmed it, and decreed accordingly.
    The bonds tendered were not accepted and canceled, and they still remain the property and in the possession of Sanders. As between Sanders and Jewett, trustee, the Supreme Court has simply settled Sanders’ rights, viz.: “ That the provision of the trust deed was express; that upon receiving the schedule price of any lot, in bonds, the trustee should release the lot from the trust deed.” That " the relief asked by Sanders should have been granted to him upon the surrender of his bonds.”
    From this it appears that Sanders’ right (heretofore denied) to redeem each of his lots at the schedule price in bonds, was established. It further appears that this right pertains to each lot individually, and not to his (301) lots collectively. It it therefore impossible to consolidate these distinct and independent rights in legal contemplation, springing as they do from the terms of the mortgage, which recognizes each lot as a unit and fixes its redeemable value, but they must be regarded in law, as they are in fact, separate and distinct. The pieces or parcels of land are separate, are appraised in the schedule at different values, are separately defined, and lie scattered throughout the various blocks and divisions of Kiverside.
    It follows that one lot may be redeemed by Sanders without any reference to the redemption of any other lot. In short, the failure or refusal to redeem one lot can not impair the right to redeem any other lot, and the redemption of one lot creates no obligation to redeem any other lot.
    Had Jewett accepted the bonds when tendered, and canceled them, this would of course have been the end of both bonds and coupons, and the trust deed, as to Sanders’ lots, would have been released, and he put in possession of his property. But all this failed because Jewett refused to accept the bonds and release the lots. Sanders, per force, kept his bonds, and Jewett held on to his mortgage, and the possession of the property remained with the land company and subsequently with the receiver. How years have passed, and the coupons not being paid, as they should have been by the railroad company as they fell due, have accumulated—have accumulated in the hands of Sanders as an incident or increment of the bonds. Are the bonds Sanders’ ? If yes,, then so are the coupons. The coupons represent simply an accumulation of interest upon the bonds, and they are so attached thereto that they may be easily severed therefrom without injury to the bonds, and are intended to be so severed. Each coupon, at maturity, becomes an independent obligation, thenceforth itself drawing interest until paid. It. is negotiable, and passes from hind to hand by delivery. Commissioners v. Aspinwall, 21 How. 539; City v. Lamson, 9 Wall. 477; Aurora City v. West, 7 Wall. 82; Thompson v. Perrin, 106 U. S. 589.
    The Supreme Court determined that Sanders had a right, at the time he tendered his bonds to Jewett, to redeem therewith each of his lots at the schedule price. As he was not permitted to do it then, the decision means that he may do it now. “ The relief asked by Sanders should have been granted him upon the surrender of his bonds,” says the court. Hence it follows that the relief asked shall be granted him now, “ upon the surrender of his bonds,” not the surrender of his coupons. They may, or may not, be attached to the bonds. They may," or may not, even now, be the property of Sanders.
    Messrs. Page & Booth, for appellees.
    As early as July, 1886, Sanders was apprised of appellees’ claim by their answer to his own petition, as well as by the arguments of counsel in settling the form of the order of reference, and upon that answer and the arguments thereon the order of reference of October 29, 1886, was based.
    The master filed his report February 2, 1888, in which he allows the taxes to the Pecks upon the condition that a supplemental bill shall be filed.
    To this portion of the report the. Pecks excepted, averring that they were “ entitled to such relief upon the pleadings as they now stand.”

      Either the master overlooked the amended answer of the Pecks to Sanders’ petition, or is in error in not treating the amended answer as a sufficient pleading to entitle the Pecks to the relief asked.
    ]STo formal pleading is necessary to warrant the court in decreeing the taxes to a mortgagee who has paid them in protection of his security, provided there is something to bring the matter into the record. Wright v. Langley, 36 Ill. 383.
    ° The second objection to the decree raised by appellant is “ that he was not permitted to redeem from the lien and operation of the Jewett trust deed of March 1, 1873, such of his 301 lots at Riverside as he chose to redeem.”
    Our reply is that, after fourteen years of litigation, in which this case has already been to the Appellate Court once and to the Supreme Court twice, this is the first time any such claim has ever been made, or even hinted at.
    Turning to his cross-bill, we find that, having tendered 195 bonds he “ prays decree that Jewett release his 300 lots.”
    With this prayer of Sanders before it, the Supreme Court say, on page 457: “We are of opinion the relief asked by Sanders should have been granted to him upon surrender of his bonds.” 112 Ill. 457.
    This novel claim, now for the first time set up by appellant, finds no basis in the pleadings. He has never tendered the issue before, and upon every principle pertaining to the quieting of litigation, if it could have been raised before it should not be permitted to be raised now.
    “ Where a case has been heard in the Circuit Court, reviewed by the Supreme Court, and remanded with directions as to the decree that shall be entered, a party can not, on a subsequent appeal, assign for error any cause that accrued prior to the decision of the Supreme Court. It will be presumed, where a case has been determined in the Supreme Court upon its merits, and the errors assigned, that the appellant or plaintiff in error has no further objections to urge against the records and that if any errors exist which are not so assigned, they are waived, and he will not be permitted to have his case heard partly at one time and the residue, at another.” Hook v. Richeson, 115 Ill. 445; Walker v. Doane, 108 Id. 236; Washburn & Moen Mfg. Co. v. Wire Fence Co., 119 Ill. 30; Mix v. People, 122 Ill. 641; Ogden v. Larrabee, 70 Ill. 510 ; Kingsbury v. Buckner, 70 Ill. 514.
    That the strife may cease, and that the rights of the appellees may be at last defined, we feel fully justified in asking this court to hold Sanders to his original tender.
    The third objection raised by counsel to the decree is that he is not allowed in his now proposed redemption to add to the face of the bonds the accrued due coupons.
    It would seem to be a correct conclusion to what has preceded, that Sanders either did or did not, in May or June, 1874, tender his bonds as they then were, and demand a release of his lots. If he did not, then all the 301 lots belong in the Jewett trust deed, and appellees have a right to sell them. If he did make such tender, he must keep the tender good, and all acts based thereon must be treated as having been done at the time of the tender. He can not vary its form or character; he can not expand or contract it; he can not add to or take away from it without losing the benefit of it. If this principle of law be correct, and we think it is supported by ample authority, it follows that the bonds, as tendered in 1874 in exchange for lots, are to be treated as canceled as of that date, and, the principal bond being canceled, the coupons not due must necessarily follow the fate of the bond. Aulger v. Clay, 109 Ill. 487; Crain v. McGoon, 86 Ill. 434.
    Messrs. J. L. High and D. S. Wegg, for the Chicago & Great Western R. R. Co.
    When a decree is reversed by the Supreme Court, with directions to modify it in the respects indicated, or to enter a decree in conformity with the opinion of that court, it only remains for the court below to make such modifications, and it is powerless to enter into a general investigation of other matters not embraced in the mandate and opinion. The court below has, in such case, but one duty to perform,-viz.: to enter a decree in accordance with the directions of the Supreme Court. Ogden v. Bowen, 4 Scam. 301; Boggs v. Willard, 70 Ill. 315; Wadhams v. Gay, 83 Ill. 250; Hough v. Harvey, 84 Ill. 308; Manufacturing Company v. Wire Fence Company, 119 Ill. 30; Mix v. People, 122 Ill. 641.
    The judgment of the Supreme Court on the former appeal, Chicago & Great Western Railroad Land Company v. Peck, 112 Ill. 408, is res judicata upon all matters in controversy, except the specific points on which the Supreme Court directed a modification of the original decree. All parts of that decree not expressly reversed or modified are affirmed, and the doctrines of res judicata extends not only to issues actually tendered in the former controversy, but to all such as might have been tendered or litigated by the parties. Cook v. Norton, 61 Ill. 285; Hough v. Harvey, 84 Ill. 308; Smith v. Brittenham, 94 Ill. 624; Newberry v. Blatchford, 106 Ill. 584; Bennitt v. Wilmington Star Mining Company, 119 Ill. 9; Manufacturing Company v. Wire Fence Company, 119 Ill. 30; Henderson v. Henderson, 3 Hare, 100; Wells on Res Judicata, 217; Freeman on Judgments, Sec. 249.
    And the decree of the Circuit Court of LaSalle county, in the case of Cameron v. Chicago and Great Western Railroad Company, affirmed by the Supreme Court in City of Chicago v. Cameron, 120 Ill. 447, finding that Sanders received his 195 bonds with full knowledge of their want of consideration, and declaring them to be ultra vires, fraudulent and void as against the railroad company, is conclusive upon Sanders, who was served by publication, more than three years having elapsed since that decree, and he having taken no steps to open the decree or set it aside. Revised Statutes of Illinois, chapter 22, “ Chancery,” section 19.
    The decree requiring Sanders to surrender his 195 bonds to Jewett, with all the coupons attached, in the condition in which they were at the date of the original tender, June 1, 1874, was not erroneous. The tender was made by Sanders as an entirety, and it was his duty at all times to keep his tender good. The tender being of chattels and not of money, it operated eo vnstanti as a transfer of the bonds, with all their incidents, to Jewett as trustee, the title to the bonds and coupons thereby vesting in him as of June 1, 1874, and the lien of the trust deed, as to the Sanders lots, being in legal contemplation released as of that date. Parsons on Contracts, 6th edition, 654-5; 2 Kent’s Commentaries, 509; Revised Statutes of Illinois, chapter 135, “ Tender,” section 2; Stow v. Russell, 36 Ill. 18; Thayer v. Meeker, 86 Ill. 470; Aulger v. Clay, 109 Ill. 487; Lamb v. Lathrop, 13 Wend. 95; Rix v. Strong, 1 Root (Conn.), 55; Smith v. Loomis, 7 Conn. 110; Curtis v. Greenbanks, 24 Vt. 536.
   Moran, J.

This suit was commenced October 9, 1874, by appellees filing a bill to reform and foreclose a trust deed .which has been known in the litigation as the Jewett trust deed, and which was made to secure certain bonds therein described of the amount of $1,000,000, of the first $100,000 preferred of which, appellees were owners. To that bill appellant was made a defendant, and after answering, filed his cross-bill, and cross-bills were filed by various other defendants, some of which set up and asserted mortgage liens on the property covered by the Jewett trust deed prior to the lien of said trust deed. Besides the Peck bill, three other original bills were filed by parties claiming rights and interests in the property, and in all, eight cross-bills were filed by defendants to these original bills, seeking on various grounds to obtain affirmative relief.

By agreement of all the parties, all these cases on the bills and cross-bills were heard together, with the understanding that the testimony taken at the hearing should, so far as applicable, be considered in each case. The litigation progressed to a decree in the Circuit Court, which decree, after being affirmed in this court, was reversed by the Supreme Court, and the case remanded to the Circuit Court for further proceedings in conformity with the opinion of the Supreme Court.

The issues under the various pleadings, and the facts as they appeared in the record as then made up, are fully stated in the report of the case in the Supreme Court, found in the 112 Ill. 408. This appeal brings up for review the decree entered by the Circuit Court, in pursuance of the remanding order. Between the date of the filing of the bill by appellees and the redocketing of the case in the Circuit Court under said remanding order, something about fourteen years had elapsed, and it was claimed by appellants that certain changes had taken place in the condition of the parties and of the property, and certain circumstances had arisen since the filing of the bill which were proper to be considered, and various errors are now assigned upon the action of the court in not allowing a supplemental answer and cross-bill to be filed by appellant, as well as error in overruling certain exceptions of appellant to the master’s report, and in failing and refusing to grant to appellant the relief to which he is entitled under the pleadings and evidence in the case.

Appellant was the owner, before the filing of the original bill, of 301 lots of land at Riverside, all of which lots were subject to the lien of the Jewett trust deed. He was also the holder of 195 bonds of the Great Western Railroad Company, which he contended he was entitled to surrender to Jewett, the trustee, in redemption of his lots from the lien of the Jewett trust deed, according to a certain schedule of prices agreed upon and fixed by the parties to said trust deed.

In June, 1874, before the filing of the original bill, he tendered to said Jewett his said bonds, which were sufficient in amount to release his said lots from said trust deed, and demanded a release of the same; but said Jewett refused to release them, and appellant in his cross-bill claimed that he was entitled to have said lots released and prayed that the court decree him that relief.

The Supreme Court decided, reversing the decree of the Circuit Court in that as well as other respects, that the appellant was entitled, by the plain terms of the deed of trust, to the release which he demanded.

At the time, appellant offered the bonds to and demanded the release of his lots from Jewett, he supposed that said lots were subject to the lien of said Jewett trust deed only; but by the same decision, in which his right to have his lots released was upheld by the Supreme Court, it was determined that there were other liens prior in right to the said trust deed, and which cover a considerable number of his lots, to the extent of the probable value of such lots. '

On the hearing in the court below, at the entering of the decree appealed from, appellant insisted that he was not bound to surrender all of his said 195 bonds, and take a release from said trust deed of all his 301 lots, but that he had the right to redeem such of said lots as he might elect by surrendering bonds to the amount required by the schedule for such lots as he selected, and asked that it should be so decreed. But the court refused to so order, and, on the contrary, adjudged that he must release the 301 lots if he released any, and he could release none unless he released all, and gave him permission in the decree to release the 301 lots by the surrendering of the 195 bonds.

This portion of the decree is sought to be sustained on the ground that appellant tendered to the trustee in the first place 195 bonds and demanded the release of his said 301 lots, and that in his cross-hill he specifically prayed that the trustee should be compelled to release his said 301 lots on the surrender of these particular 195 bonds, and that it was upon this entire tender of all his bonds to release all his lots that the Supreme Court decided that he was entitled to a release, and to allow him to surrender any less than the 195 bonds and obtain a release of a less number than 301 lots, would be to disobey the order of the Supreme Court remanding the case “for further proceedings in conformity with its opinion.” We can not concur in this view. The provision in the Jewett trust deed relating to the release of the lots is as follows: “The trustee shall, on receiving schedule price of any lot or lots in cash or notes secured by mortgage thereon, or in railroad bonds at par, numbered from 1 to 1,000, both inclusive, release said lot or lots.”

It appears from the opinion of the Supreme Court that the ground on which the release of appellant’s lots was refused was that he had obtained the deeds to his lots by fraud, and the Circuit Court set the deeds aside. This finding the Supreme Court held erroneous, saying: “ The provisions of the trust deed were express, that upon receiving the schedule price of any lot in bonds, the trustee should release the lot from the trust deed. We find no sufficient evidence that the deeds to Sanders were obtained by fraud; and as holder of bonds to the amount of the schedule price of his lots, which he tendered, by the plain terms of the deed of trust he would seem to be entitled to the release which he demanded.” It is obvious that the question which the Supreme Court considered and determined was that Sanders was a Iona fide owner of the lots and of the bonds, and therefore entitled, on paying schedule price of any or all of his lots in bonds, to have such lots or lot released; and not that, having offered the schedule price of the 301 lots in 195 bonds at one time, he must have just that number of lots released, and surrender just that number and amount of bonds. The point was not at all as to the number of lots or as to the amount of bonds, but as to his right to have each of the lots released on surrendering to the trustee bonds to the amount of the schedule price of such lot. The question is not different from what it would have been if the Circuit Court had originally found that Sanders was entitled to a release of his lots. Can it be seriously contended that, the court having found Sanders entitled to all the relief specifically prayed for in his bill, he could not ore tenus, at the bar of the court, elect to take less than his pleading and proof entitled him to? The Supreme Court found him entitled to the full and specific-relief prayed in his bill; but we know of no ruling which would compel him, when the decree comes to be entered, to take that full relief or nothing. Ho such consequences follow from anything in the opinion of the Supreme Court, nor is such result made necessary by the form of appellant’s pleading. His bill contains a general prayer for relief, and his allegations and the proof entitle him to relief as to one or more of all the lots, and the specific prayer as to all was no obstacle to his electing at the bar to take a less number. Vansant v. Alimon, 23 Ill. 30; Holden v. Holden, 24 Ill. App. 106.

But it is said that without regard to the effect to be given to the opinion of the Supreme Court on this point, and without reference to the form of the pleading, and wholly irrespective thereof, the tender by appellant to Jewett of the 195 bonds vested in him the title, as trustee for the bondholders, and in legal contemplation they became extinguished as of that date. In support of this position, cases are cited by counsel which go to establish the proposition that upon the tender of specific chattels in payment of a debt the debtor is discharged from his contract, and the right in the articles tendered passes to the creditor, and if the debtor thereafter retains possession of the goods, it is as the bailee of the creditor, and at his risk-

The doctrine invoked, and which will be found stated at large in 2 Parsons on Contracts, 653 and 654, cited by counsel, has, in our opinion, no proper application to the case under consideration. It is a rule applicable where the rights of parties to a contract by the terms of which one is bound to deliver to the other specific chattels in payment of a debt, are in question. That is not this case. Sanders has never entered into any contract or assumed any obligation to pay off the mortgage debt or any portion of it in bonds or otherwise. There is no question here as to the performance of contract obligations by Sanders. He has the right, by the terms of the trust deed, to release his lots by the payment of money or railroad, bonds, and the latter are not specific chattels in the sense in which the term is used in authorities cited by counsel. The bonds were evidence of indebtedness, like notes payable to bearer, and if enough in amount was tendered to release any one lot, it was the same as the tender of sufficient money to effect the same purpose, and by the tender the title to the particular bonds offered to redeem a lot no more vested in the trustee than would the title to the particular money offered to him for the same purpose. The tender would be kept good by being ready to deliver for the release of such lot at any time, not the particular bond or bonds first offered, but the amount of the schedule price of such lot in bonds of the description and within the number mentioned in the deed of trust. We perceive in the facts of the case no basis whatever for holding that appellant was estopped by tendering the 195 bonds for all the lots, from afterward withholding a portion of the bonds and leaving some of the lots unredeemed. The elements of an estoppel are all wanting, and appellant had a locus ■pcanitentia in regard to his tender until an actual delivery of the bonds to the trustee had taken place-

There are, it seems to us, strong equitable grounds for allowing appellant to select for release from the trust deed such lots as he may choose, and we see no justice in requiring him to sacrifice his bonds, whatever may be their value, in releasing the lots which, when so redeemed, are still lost to appellant.

We are, therefore, of opinion that it was error to refuse to allow appellant to release less than the whole number of lots specified in his cross-bill. It is true he did not tender a proper decree, nor did he designate the particular lots which he would redeem.. It was for the court, however, to direct a proper decree, and such a decree would allow him the right to redeem any of the lots, and might fix a time within which he should designate and redeem such as he selected.

Appellant’s right to enforce a release of any of the lots, is based upon the fact that before filing his bill he offered to deliver to the trustee bonds to the amount of the schedule price of each lot.

The bonds, as then offered, had attached all the undue interest coupons. Since the tender was made, many of the coupons have become due, and appellant contends that he should be allowed to-surrender the bonds after severing from them such coupons. The chancellor held that all the coupons on the bonds when tendered must be surrendered with the bonds now delivered to redeem lots. This ruling was correct. The right will be enforced only upon the thing tendered being delivered in the condition that it was in at the time the election to redeem was exercised, when the tender made the right perfect. The coupons that were attached to the bonds when they were offered must go with the bonds now, when the court compels the acceptance of the offer. We think the release of such lots as Sanders may elect to redeem should be? as the court held, upon the condition that lie pay to the complainants all taxes which they may have paid on such lots so to be redeemed, with interest thereon from the time the same were paid; and as the redemption is allowed on Sanders’ cross-bill, no pleading on the part of complainants is necessary to support the decree for such taxes.

We do not deem it necessary to discuss other errors assigned and urged upon our attention in the brief of counsel, further than to say that except in the matters which we have heretofore in this opinion pointed out, we deem the decree appealed from to be in strict conformity with the opinion of the Supreme Court, and that all orders, of the court with regard to allowing or refusing amendments to the pleadings, or the tiling of additional pleadings, were free from error. We have not thought, it incumbent upon us in disposing of the appeal in this court, to go into a statement of the facts in this voluminous record.

The rights of all the parties in interest are fully stated in the report of the case in the Supreme Court, 112 Ill. 408.

So much of the decree of the Circuit Court as directs that upon the delivery to said Jewett by said Sanders of the 195 bonds of the C. & Gt. W. R. R. Co., said 301 lots shall be released from the lien of said Jewett trust deed will be reversed, and said decree will in all other respects be affirmed and the case will be remanded to the Circuit Court, with direction to decree that upon said Sanders within ninety days surrendering to said Jewett or the master C. & Gt. W. R. R. Co. bonds with coupons to the amount of the schedule prices of such of said 301 lots as he, said Sanders, shall, at the time of making such surrender, designate or specify, then said Jewett, or in case he refuses, the master, shall receive said bonds with coupons so surrendered, and cancel the same, and release to said Sanders, upon his also paying §2,212.01, taxes and interest thereon to complainants, the lots which may by him be designated or selected from the 301 lots; and in case said Sanders fails to select lots and surrender bonds therefor and refund said taxes within ninety days from the entering of such decree, then his cross-bill shall be dismissed.

Reversed in joa/rt and affirmed in jpart.


author: Gary, J.

text:
    Leopold Schlesinger and David Mayer v. James B. Keifer, Impleaded, etc.

      Husband and Wife—Family Expenses—See. IB, Chap. 68, R. S.—Practice—Error without Prejudice—Costs.
    1. The liability of husband and wife for family expenses, under See. 15, Chap. 68, R. S., depends upon whether they live together and constitute a family in fact.
    2. Where it is sought to charge the defendants under the statute, recovery can not be had on any other ground.
    3. The appellant can not complain of an error which has worked him no injury.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Kraus, Mayer & Stein, for appellants.
    At common law the husband was liable for necessaries furnished his wife, even though she were living apart from him, if without her fault.
    The evidence clearly shows that the merchandise, for the value of which this suit was brought, was such as Mrs. Keifer had been provided with by her husband during their entire married life. Considering her condition and his degree and circumstances in life, they were necessaries and suitable to her, and he was clearly liable therefor. Rea v. Durkee, 25 Ill. 414.
    In this State the husband is liable for the “ expenses of the family,” independent of their being “ necessaries.”
    In 1874 our Legislature passed the following law (Sec. 15, Chap. 68, R. S.) : “ The expenses of the family and the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

      It is under this statute that appellants particularly claim the right to hold Mr. Keifer liable for the merchandise herein sued for. In order to correctly construe the statute, it is proper to examine its source. It is taken verbatim from the laws of Iowa, § 2214 R. Code, 1882, which reads as follows :

      “ The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately.”
    The statute makes no distinction between the wife’s and the husband’s liability. They are each liable and “ they may be sued jointly or separately.” “ The statute was enacted for the benefit of the husband or wife and the person from whom the things constituting the family expenses were obtained, to the end that credit could be obtained and extended for something essential, necessary or convenient, or so deemed by the husband or wife, to be used in or by the family.” Davis v. Ritchey, 55 Iowa, 719.
    His liability and that of the wife are identical; they are “ precisely commensurate.” Hayden v. Rogers, 22 Ill. App. 557.
    The condition of Mrs. Keifer’s wardrobe at the time of the purchases sued for, or at any other time, was wholly immaterial; the language of our statute is general, and the liability of the husband or wife is not limited .to necessary expenses. The statute applies to the expenses of the family, “ without limitation or qualification as to the bind or amount.” Von Platen v. Krueger, 11 Ill. App. 629; Smedley v. Felt, 41 Iowa, 588; Fitzgerald v. McCarty, 55 Iowa, 702.
    And it is not even necessary that the articles purchased should have beensuitable and proper for the family, considering their condition.” Von Platen v. Krueger, 11 Ill. App. 629.
    It was error also for the court below to admit evidence of James B. Keifer’s financial standing and circumstances. Whatever they may have been, under the authorities already cited, “ his liability did not depend upon his wealth, habits or social position.” Hudson v. King, 23 Ill. App. 118; Smedley v. Felt, 41 Iowa, 588; Von Platen v. Krueger, 11 Ill. App. 629.

      Mr. G. W. Stanford, for appellee.
    Is the liability of the husband to provide for his family en'arged by Sec. 15, Chap. 68? It is under this statute counsel for appellants “ particularly ” claim the right to hold the husband liable for the goods in question. It was not important that this statute should be passed to make the husband liable for necessaries furnished the wife or infant members of his family. That liability was established before on common law principles, and the statute can not avail the appellant anything in this case unless it be now construed to make the husband liable for any amount or quantity of dry goods the wife might purchase on his credit for her use or adornment. If the rule is once extended so as to render him liable beyond his common law obligations, then I see no limit to the liability, provided she uses the articles in any manner. They may not be suitable to her condition or necessities, may minister only to her vanity, and may lead to certain bankruptcy of the husband. The statute may receive a reasonable construction and application and yet not make it possible to inflict such wrong upon the husband.
    The language of the statute is not broad enough for the purposes of appellants. I quote: “ The exjienses of the family and the education of the children shall be chargeable upon the property of both husband and wife, or either of them,” etc. The proper family expenses were always a charge upon the husband and his property, but before this statute they were not a charge upon the wife or her property, unless she, in each instance, made herself liable. We think the main purpose of the statute was to subject the wife’s property also to the payment of family expenses, education of the children, etc., and that in legal effect the statute would have been just as effective as now if the language used had been: “ The family expenses, etc., shall be chargeable upon the property of the wife, etc., in favor of creditors.” Assuming that this language would not have relieved the husband from his common law liability, and we have a statute which would fix the rights of creditors just where we think the present statute fixes it.

      This view is borne out by the authorities cited by counsel. In every case cited by them the effort was to make the wife liable for expenses which were denominated family expenses.
    The views above are laid down by this court in Hayden v. Rogers, 22 Ill. App. 557, in which the judge says: “Independently of the statutes, the husband is personally liable for indebtedness incurred for family expense, and the statutes, by providing that the wife may be sued jointly, etc., necessarily imposes upon her a liability precisely commensurate with his.”
    The language used in Hudson v. King Bros., 23 Ill. App. 118, is not inconsistent with this view. The court say: '“ The husband is the head of the family; he determines primarily what is needed for it; he buys, furnishes, contracts debts, all in his own name, for the support and welfare of the family; her name need not be known, and his acts, agreements and promises are alike obligatory upon both.” This is not equivalent to saying that the wife, without the knowledge or consent of the husband, may contract and determine what shall be the family expenditure.
    I take it, the question of what is family expense being a question of fact to be determined by the evidence, depending in this case upon the other facts as to whether or not the parties were living together as husband and wife, and were the goods bought for family use, etc., that the court will presume that the court below found these facts against plaintiffs. See Compton v. Bates, 10 Ill. App. 85. Using the language employed in this case : “It is quite evident that these goods were not bought by the wife to be used in the family, neither were they used by the family, and were therefore in no respect expenses of the family.” “She bought them in contemplation of a separation from her family, for her own use after she ceased to be a member of the family.” “ In our opinion the statute, so far as the husband is concerned, is but declaratory of the common law, neither enlarging or diminishing his liability.”
    In the case just quoted from, the husband and wife had agreed upon a separation. The case in all particulars is essentially like the one at bar, and while it antedates the case of Von Platen v. Krueger, 11 Ill. App. 627, yet is not in conflict with it upon the question presented by this record.
   Gary, J.

This was an action under Sec. 15, Ch. 68, R. S. 1874, by appellants against appellees as husband and wife, charging them with ladies’ and children’s apparel, sold by appellants to her, as family expenses.

In this action against them jointly, no other ground of recovery can be x-elied upon. It would see in to be a condition precedent to any family expenses that there should be a family; a family in fact, without regard to what knowledge the persons selling the goods had of the fact. If they sold, as they supposed, to a bachelor or a spinster, and it turned oxxt that there was a wife or a husband, who with the purchaser constituted a family, probably both could be held, and vice versa. In this case it appeared that the appellees had ceased to live together for some months before the purchase, though the appellants had no notice of such separation. either had the husband any notice that the wife was buying goods.

In Hudson v. King, 23 Ill. App. 118, the Appellate Court of the Second District regarded it as essential to the liability of the wife that she and her husband constituted a family in fact. See also Compton v. Bates, 10 Ill. App. 78, 85.

The Superior Court rightly decided that the appellees were not liable under the statute for family expenses whei'e there was no family. She was not served with process, and did not appear in the action, yet judgment against the appellants fox-costs was entered in favor of both appellees. This is an immaterial error. The costs are not increased, and it makes no difference to appellants whether they are adjudged to one or both the appellees. O’Brien v. People, 41 Ill. 456; Wright v. Bishop, 88 Ill. 302; Worden v. Crist, 106 Ill. 326.

The principle is, that a party can not assign for error what does him no harm, and that applies in this case also to the questions raised upon other issues than the existence, of a family.

Judgment affirmed.


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    Albert L. Sercomb v. Charles Catlin, Receiver.

      Contempt—Interference w'th Receiver.

    Where a receiver has been appointed under a creditor’s bill, the court may compel persons within its dictation to refrain from prosecuting suits in other jurisdictions to reach property of the debtor there situated.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Flower, Remy & Holstein, for appellant.
    Of all conveyances by mere operation of Jaw in cases of bankruptcy, insolvency or receiverships in invitim, the weakest title is that of a receiver under a creditor’s hill. A receiver under a creditor’s bill is appointed for the benefit of one or more creditors to the prejudice and exclusion of all other creditors of the debtor, while an assignee in bankruptcy or insolvency is appointed for the benefit of all creditors equally. We need not multiply authorities upon this proposition. The distinction we have suggested is universally recognized by the authorities. The Supreme Court of this State, in a very recent case, recognizes it. See May, assignee, v. First National Bank, 122 Ill. 551; Burrill on Assignments, 5th Ed., Sec. 303; Story’s Conflict of Laws, 8th Ed., Sec. 411, p. 573.
    What are the rights and powers of Catlin as receiver ?
    A receiver appointed under a creditor’s bill is merely an officer of the court appointing him, and his rights and powers as such are determined, measured and limited by the jurisdiction of that court.
    Reither the laws of a State nor the orders of its courts have any force or efíect prof/no vigore beyond its territorial limits.

      The appointment of Oatiin as receiver by the Superior Court, under a creditor’s bill, against Clapp & Davies, residents of Illinois, did not vest in said receiver the property of Clapp & Davies situate in other States or Territories beyond the jurisdiction of the court. Booth v. Clark, 17 How. 322; Olney, receiver, etc., v. Tanner, 10 Fed. Rep. 101; Parsons v. Charter Oak Life Ins. Co., 31 Fed. Rep. 305; Rhawn v. Pearce, 110 Ill. 350; May v. First National Bank, 122 Ill. 551; Keller v. Dewitt C. Paine, 107 N. Y. 83.
    Messrs. Kraus, Mayer & Stein, for appellee.
    Rorer on Inter-State Law, page 42, says: “The authority of courts of one State to restrain, by injunction, persons within its jurisdiction from prosecuting suits either in the courts of such State or in the courts of other States, against persons or property there situate, of persons resident in the State where the injunction is asked, is fully asserted—not by way of interference with the course of proceedings or jurisdiction of courts of other States, for to this end a court has no power— but upon the principle that courts of equity have full power over persons within their jurisdiction and amenable to their process, to restrain them from proceeding, either within or without the State, to do acts which are wrongful toward other residents, and therefore contrary to equity and good conscience.” This doctrine is now uniformly asserted by the courts of this country and England. High on Injunctions, 2d Ed., Secs. 103-106; 2 Story’s Equity Jurisprudence, Secs. 899-900; Alexander v. Tolleston Club, 110 Ill. 65; Massie v. Watts, 6 Cr. 148; Dehon v. Foster, 4 Allen, 545; Same v. Same, 7 Allen, 57; Keyser v. Rice, 47 Md. 203; Chaffee v. Quidnick Co., 13 R. I. 442; Vermont, etc., Railroad Co. v. Vermont & Central Railroad Co., 46 Vt. 792; Cole v. Young, 24 Kas. 435; Engel v. Scheuerman, 40 Ga. 206; Hendee, receiver, v. Conn. & P. R. R. Co., 26 Fed. Rep. 677; MacGregor v. MacGregor, 9 Iowa, 65; Grape Falls Mfg. Co. v. Worster, 23 R. H. 462; Briggs v. French, 1 Sumner, 504; Deklyn v. Watkins, 3 Sanf. 185; Claflin v. Hamlin, 62 Howard’s Pr. 284; Snook v. Snetzer, 25 Ohio St. 516; Dinsmore v. Neresheimer, 32 Hun, 204; Vail v. Knapp, 49 Barb. 299.
   Gary, J.

April 14,1887, by the Superior Court, the appellee was appointed receiver of the effects of the firm of Clapp & Davies. The appellant resides in Chicago, and is the western manager of the Meriden Brittania Company, a Connecticut corporation having a branch office in Chicago.

After the appointment of the appellee, the appellant having notice thereof, commenced, in the District of Columbia, an attachment suit, for and in the name of his company against Clapp & Davies, and garnished there one who held goods of the firm, and who had been notified of the appointment of the appellee, and by him requested to return the goods. Meither the appellant or his company was a party to the suit in which appellee was appointed receiver.

By proceedings that need not be stated in detail, for no question of form is made in the case, April 7,1888, the appellant was adjudged to be in contempt for not dismissing, pursuant to the order of the court, that attachment suit, and from that adjudication this appeal is here.

The position of the appellant is that the court here and the appellant as receiver under its appointment acquired no property in or control over the assets of Clapp & Davies without the jurisdiction of the court. This proposition is supported by abundance of authority. There is nowhere any dissent from the decision to that effect in Booth v. Clark, 17 How. (U. S. S. C.) 322, and the Supreme Court of this State has adopted the principle of that decision in Rhawn v. Pearce, 110 Ill. 350.

The appellee does not deny, but avoids the position of the appellant, by insisting that as the court here has jurisdiction of the person of the appellant, it will compel him to refrain from doing anything that has a tendency to prevent the receiver appointed by it, from getting into his hands the effects of the firm wherever situated, and will compel him to undo anything he has done in that direction. And this is in fact all there is of the case.

The appellee is sustained by authorities of the highest respectability and opposed by none. To quote or paraphrase the reasoning upon which the decisions are based would take too much space. It is all summed up in the sentence, “ We hut echo the universal doctrine when we say that to the utmost linrt of the jurisdiction and authority of this court its orders shall be neither interfered with nor disobeyed. * * The question, then, is not whether the order of the court can operate ex proprio vigore outside of its jurisdiction, nor whether the receiver would have authority in Hew York to compel a payment of these funds to him. It is, have the respondents by their action interfered with and obstructed him in doing that which the court directed him to do, or have they intercepted funds and prevented them from coming to his hands, when otherwise he might have received them.” Chaffee v. Quidnick Co., 13 R. I. 442; and see Dehon v. Foster, 4 Allen, 545; V. R. R. Co. v. Vermont, etc., R. R. Co., 46 Vt. 792.

There is no question that the appellant had power to dismiss the attachment suit and discharge the garnishee, and if ' that were done, it may be the appellee could get the goods. At any rate it will be prudent for the appellant to follow tlilY example of Gen. Prior in the Ehode Island case.

The order appealed from is affirmed.

Order affirmed.


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    James A. Brophy, Impleaded, etc., v. Hobart C. Taylor.

      Taxes—Sales—Bill to Set Aside Certificates—Costs—Relief.

    1. Upon a bill to set aside certificates of sale of certain lots for taxes, the complainant is not entitled to costs unless he has applied to the defendant for the surrender of such certificates before suit brought.
    2. In the case presented, the decree should have required the complainant to deposit in court for the use of defendant the amount he had paid at the sale and subsequent taxes paid by him, if any, with interest at six per cent, per annum on all, as a condition precedent to the relief granted.
    [Opinion filed February 13, 1889.]

      Appeal from the Circuit Court of Cook County; the Hon. Olivee H. Hoeton, Judge, presiding.
    Messrs. Abbott, Oliver & Showalter, for appellant.
    Messrs. Millard & Smith, for appellee.
   Gary, J.

This was a bill filed by appellee to set aside certificates of sale of certain lots sold by the county treasurer on a delinquent assessment warrant. The decree set them aside without terms, and gave appellee costs. The appellant was not applied to before suit to surrender the certificates upon any terms, and no costs should be taxed against him. To charge him with the expenses of the suit he should have been asked before the suit to do what, by suit, might be required of him.

On the hearing the appellant did refuse to accept the money he was entitled to and surrender his certificates, but this refusal did not add anything to the equitable claims of the appellee. Hor does a court of equity enforce or favor penalties or forfeitures. The appellant should have his locus posnitenticB.

It is equitable, if the appellee desires to get rid of the cloud the appellant holds upon his title, that he should reimburse the appellant the money expended by him, of which appellee has had the benefit by the discharge of the burden upon his property.

The decree should have required appellee, as a condition precedent to the relief granted, if the appellant would not take the money, to deposit in court for the use of the appellant, the amount he had paid at the sale, and any subsequent taxes he had paid, with interest at six per cent per annum on all, and in default thereof within a limited time to be fixed by the decree, that the bill should be dismissed. Alexander v. Merrick, 121 Ill. 606, and cases there cited.

This was all that the appellee was entitled to. The authority of Gage v. Busse, 102 Ill. 592, is so shaken by Gage v. Pirtle, 124 Ill. 502, that it can not be cited with entire confidence that it will be followed.

The decree is reversed and the cause remanded to the Circuit Court with directions to enter such a decree as is above described without costs to either party. Here the appellant will recover his costs of this appeal.

Reversed and remanded.


author: Gaby, J.

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    John Gibbons v. The German Insurance and Savings Institution, of Quincy, Illinois.

      Fire Insurance—Loss Caused by Steam.

    1. An ordinary fire insurance policy does not cover a loss caused by escaping steam from a break in steam-heating apparatus.
    2. The word fire does not include heat of a degree too low to cause ignition.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. John Gibbons and Armand F. Teefy, for appellant.
    It is not claimed that a person may recover for damages done his property by steam. What we claim is, that if steam escapes from its regular channel, and it is hot enough and dry enough to burn, and it does, in fact, burn, the damage which it occasions is a damage by fire. And we further claim that whether it is hot enough and dry enough to burn is a question of fact for the jury, upon the same principle that it is a question of fact for the jury to determine from the evidence whether a person who takes his own life has committed an act of suicide; which requires will and intelligence, or an act of self-destruction, which requires neither will nor intelligence.
    It is not necessary to enter into a learned dissertation in respect to the component parts of steam, because common sense teaches ns that fire and water are its principal elements; hence, if we show that the element of fire was the controlling element which did the damage, and that it was the proximate cause of the damage, then, under the authorities, plaintiff is entitled to recover, notwithstanding there was no ignition. With respect to the principle of ignition, our own Supreme Court was the first to lift the law of fire insurance out of the rut of ages, and in Case v. Hartford Fire Insurance Co., 35 Ill. 676, Mr. Justice Trumbull, delivering the opinion of the court, declared that “ the idea there can be no loss by tire without actual ignition, is so unreasonable, to my mind, that, but for the respectable authorities that have vouched for the position, I should not have thought it worthy a moment’s consideration.” The editor of the thirteenth edition of Green-leaf on Evidence, Judge James Wilder Moy, commenting on this case, says that “the doctrine of the Illinois case seems to have the better support, both of reason and authority.” 2 Greenl. Ev., 13th Ed., 405.
    The case in hand differs from that of Austin v. Drew, 4 Camp. 360. Chief Justice Gibbs in that case, said: “Had the fire been brought out of the flue, and anything had been burned, the company would have been liable. But can this be said when the fire never was at all excessive, and was always confined within its proper limits ? ” The “ proper limits” for the steam conducted in plaintiff’s room was the coil of pipe. It escaped from there, got beyond its proper limits and burned the plaintiff’s property; therefore the defendant is liable, even upon the principle announced in Austin v. Drew, supra. See Spensley v. Lancashire Ins. Co., 54 Wis. 433.
    Ho appearance for appellee.
   Gaby, J.

The only question in this case is, whether damage to the furniture and library of the appellant, caúsed by steam escaping from a break in the pipes of the apparatus by which his rooms were heated, thereby producing such a degree of heat in his rooms that the furniture and books therein were charred, is a damage by fire, covered by an ordinary fire insurance policy issued by the appellees. There is no case found where that question arose. Where there is actually a fire by which adjoining premises are being consumed, and the policy makes it the duty of the assured, in case of exposure to damage by fire, to use all .possible diligence in saving the property insured, it is held in Case v. Hartford F. I. Co., 13 Ill. 676, that damage to the insured property, incurred in hona fide efforts to comply with the terms of the policy, is covered by the policy. But there is no resemblance between that case and this. In principle this case is the same as Austin v. Drew, 4 Camp. 360, where, by the omission to open a register in an upper story of a seven or eight story building, smoke and heat came into lower stories and caused damage. Gibbs, C. J., said: “ There was no fire .except in the stove and the flue— as there ought to have been—and the loss was occasioned by the confinement of the heat. Had the fire been brought out of the flue, and anything had been burnt, the company would have been liable. But can this be said where the fire never was at all excessive, and was always confined within its proper limits? This is not a fire within the meaning of the policy, nor a loss which the company undertakes to insure against. They may as well be sued for the damage done to drawing room furniture by a smoky chimney.”

The damage there, was the consequence of negligently omitting to open a proper outlet for the escape of the heat; here, by the accidental opening of an improper one. In each case there was excessive heat, but no fire where it ought not to have been. Fire and heat are not one, but cause and effect: and damage by heat is not insured against in terms, and is covered by the policy only where the misplaced fire causes it. If the fire were a moral agent, no blame could be imputed to it. It was doing its duty and no more. The damage was caused by another agent who, undertaking to transmit the beneficial influence of the fire, broke down in the task.

So, in Millaudon v. N. O. Ins. Co., 4 La. Ann. 15, a loss by explosion of a steam boiler is held not to be a loss by fire, though without fire there could have been no steam; while in Waters v. Merchants’ Ins. Co., 11 Pet. 213, an explosion of gunpowder is held to be a loss by fire, but there the thing exploding was afire.

Tlie common understanding of the word fire would never include heat, short of the degree of ignition, however produced.

Judgment affirmed.