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    Board of Supervisors v. The People ex rel. Commissioners of Highways.

      Bridges—County Aid—Potver of Commissioners of Highways—Mandamus—No Discretion in County Board—Pleading.

    1. The Commissioners of Highways have the exclusive power to determine when a necessity exists for constructing a bridge and the kind of bridge required, and to decide whether the conditions exist which entitle the town authorities to call for county aid.
    2. The Commissioners’ estimate of probable cost of a proposed bridge is not a part of the “ official business” of the Board, which is required to bo done at a regular or special meeting, or of the “ official acts and proceedings” which are required to be kept in its record book.
    3. The law does not require, in all cases other than those of an emergency arising from sudden destruction or serious damages, that the County Board shall actually appropriate from the county treasury, a sum sufficient to meet one-half the expense of a proposed bridge before it can be built or the contract therefor let by the Commissioners.
    4. Where it appears, upon a petition for mandamus to compel a Couni y Board to make an appropriation from the County Treasurer of a sum sulllcient to meet one-half the expense of a proposed bridge, that the statutory conditions precedent have been substantially complied with, the writ will be awarded.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kankakee County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. H. L. Richardson and C. R. Starr, for appellant.
    Messrs. William Potter and Stephen R. Moore, for appellees.
   Baker, J.

This was a petition for a mandamus by the people on the relation of the Commissioner of Highways of the town of Bockville against the Board of Supervisors of Kankakee County to compel them to make an appropriation from the county treasury, under the provisions of section 19 of the act in force July 1,1883, in regard to roads and bridges in counties under township organization ” of a sum sufficient to meet one-lialf the expense of a bridge to be constructed over Forked Creek, where the same is crossed by the public highway between section 5 and section 8 in said town. The Circuit Court, on the trial, awarded a peremptory writ of mandamus to compel the Supervisors to grant the aid demanded.

Most of the material questions involved in the controversy arise upon the rulings of the court sustaining a demurrer to the 3d, 4th, 5th, 6th and 7th pleas, and overruling a demurrer ' to the replications to the 8th plea. It appeared from the petition, estimate and affidavit which were presented to the Board of Supervisors at their July meeting, 1886, that the bridge was needed, the town was wholly responsible for the. work, and the total estimated cost of building it was $1,000 ; that the cost of building the bridge would be more than 20 cents on the $100 on the latest assessment roll of the town, and that the levy of the road and bridge tax for that year in said town was for the full amount of 60 cents on each $100 allowed by law for the Commissioners to raise, and that the major part of it was needed for the ordinary repairs of roads and bridges. The 4th, 5th and 6th pleas were alike in-respect to legal principle; the 4th averred that the major part of the road and bridge tax was not needed for the ordinary repairs of roads and bridges in the town, but on the contrary, said tax was enough for the ordinary repairs of roads and bridges and a surplus of at least $1,000 for erecting said bridge ; the 5th averred that the road and bridge money on hand taken with the 60 cents levied, etc., was sufficient to pay the cost of the bridge and that said money was not needed for the payment of outstanding orders and was not needed, nor the major part thereof, for the ordinary repair of roads and bridges, but was available for building said bridge; and the 6th plea averred that the amount of money necessary to pay the cost of the bridge was not needed for the ordinary repair of roads and bridges, and that the Commissioners had in their treasury and with the tax levied sufficient money for which there was no other superior demand to pay the cost of said bridge. It will be noted that not one of these pleas traversed the fact that the levy that year in the township of the road and bridge tax was for the full amount of 60 cents on each $100 or denied that the petition which the Commissioners had presented to the Board of Supervisors stated that the major part of said tax was needed for the ordinary repairs of roads and bridges in the town. The matters of making improvements upon the public roads, of determining when a necessity exists for constructing a bridge over a stream, of determining the character of the bridge to be built and letting the contract to build it, of determining—within a certain maximum—what per cent, of tax shall be levied on the property of the town for road and bridge purposes and the payment of outstanding orders, and of deciding whether or not the major part of the sixty cents levied, allowed by law, is needed for the ordinary repair of roads and bridges, are all, by the statute, intrusted exclusively to the judgment and discretion of the Commissioners of Highways of the several- towns. As was said by the Supreme Court in New Boston v. Board of Supervisors, 110 Ill. 197, and reiterated in Supervisors v. The People, 118 Ill. 459, “ as the Legislature has seen fit to commit such mailers to the management of the local officers of the town, it is not the province of the courts, by judicial construction, to place it elsewhere.”

The town authorities are better qualified to judge than are the courts, what amount of the road and bridge tax is needed for the ordinary repair of the roads and bridges in their town, and if the matter was left to the discretion of the County Board, it might frequently interfere with the proper operation of the statute and defeat the evident intention of the Legislature. We think the Circuit Court properly sustained the demurrer to the 4tli, 5th and 6th pleas.

The substance of the 7th plea was that the estimate of §1,000 was based upon the purpose to build an iron bridge; that an iron bridge was not necessary, and that a good, sufficient and suitable wooden bridge could be built at one-half the expense, and would not cost more than 20 cents on the §100 on the latest assessment roll in said town. We have already stated that the matter of determining the kind of bridge to be constructed is vested wholly»and only in the local authorities of the town. The two cases above cited by tis seem to be very much in point. The plea was bad, and the court did right in sustaining the demurrer to it.

The substance of the 3d plea was that the estimate made by the Commissioners of Highways of the probable cost of the proposed bridge was not made at a regular or special meeting of the Board of Commissioners; that there is no official act by said Board of Commissioners making such estimate, and no record of the same. It is urged by appellants that the tenth section of the act of 1883 provides that “no official business shall be transacted by the Board, except at a regular or special meeting,” and also that the Town Clerk shall be ex offieio clerk of said Board, and shall keep a record of all the official acts and proceedings of the Board in a well-bound book, to be provided for that purpose, which record shall be signed by the president and clerk.” We think these provisions have no application to the matter in hand. The various sections of the statute must be construed together, and each section and every provision should receive a reasonable construction. The nineteenth section says that the Commissioners may petition the County Board for aid, and that they shall make a careful estimate of the probable cost and attach thereto their affidavits that the bridge is necessary, and will not be made more expensive than is needed for the purpose desired; and further, said section makes provision that “ such estimate and affidavit shall be filed with the petition.” It would seem it is no more necessary the “ estimate” should be entered upon the record of the Board than that the “ affidavit,” “ the petition for aid,” the petition for a writ of mandamus, and the various pleadings filed by the Commissioners in this suit should be entered upon such record. All of these various papers may, in one sense, be considered as “ official acts and proceedings of the Board.” It is the evident intention of the statute that the petition, estimate and affidavit shall, all three, be filed with and presented to the Board of Supervisors of the county. So, also, it will hardly be contended that the Commissioners, in the performance of the duty imposed by the fifth section of the act, to take possession of and keep under shelter, when not in use, all scrapers, plows and other tools belonging to their towns, can do no act in furtherance thereof, except it be at a regular or special meeting of the Board; and yet such taking possession of and keeping such tools is as much a part of the official business of the Commissioners as is making the estimate of probable cost of a bridge and' swearing to the statutory affidavit. Just what the “official business” is that must be done at a regular or special meeting, and what the “ official acts and proceedings ” are that are required to be kept in the record book of the Board, it is wholly unnecessary now to specify. In our opinion there was no error in holding that the demurrer to the plea in question was well taken.

The 8th plea was to the effect that the relators had erected and completed the bridge .without county aid, and that all expenditures and expenses in the building of said bridge was under and by direction of said Commissioners alone. The first replication to this plea was that after relators had presented their petition for aid to the County Board, they let the contract for building the bridge relying upon the aid asked 'of the county; that in pursuance of such contract the bridge , had been built, and that one-half the expense thereof had been paid by the town, and the other half of the expense, to wit, the half to be met by the appropriation from the county treasury, was still due and unpaid.

The second replication was to the effect that the bridge was not erected without the county aid that had been asked for by relators, but was built on the faith and liability of the county to pay one-half the expense, and not on the credit and at the expense of the town alone. This case does not fall under the last proviso of Sec. 19, where, in certain cases of emergency, a bridge may be repaired or rebuilt, and the petition to the County Board may be presented during the progress of the work or after its completion. But, we do not understand the law to be that in all cases other than those of an emergency arising from sudden destruction or serious damages, it is absolutely essential that the County Board should actually appropriate from the county treasury a sum sufficient to meet one-half the expense of the proposed bridge, before such bridge can be built or the contract therefor let by the Commissioners.

The only conditions precedent that we find in the statute to the building of a bridge with county aid are, first, that the Commissioners shall present to the County Board such a petition for aid as is required by Sec. 19; second, the matters stated in the petition must be true; third, that before such bridge can be constructed under the provisions of said section, the commissioners must make a careful estimate of the probable cost of the same and attach thereto their affidavits that the same is necessary, and will not be made more expensive than is needed for the purpose desired; and fourth, such estimate and affidavit must be filed with the petition. It appears from the record before us that all these conditions were substantially complied with. The required papers were presented to the Board of Supervisors at their July meeting, 1886. The duty then devolved upon them to make the appropriation; the statute is mandatory, and they had no discretion to refuse the aid sought. The Commissioners having done all that was required ot’ them, were authorized to proceed' with the construction of the necessary bridge and rely upon the legal liability of the county to pay one-half the expense thereof; and the latter should not now be allowed to take advantage of its own wrong. There was no error in overruling the demurrer to the replications. All material facts that were alleged in the petition of the relators that were not traversed by the pleas of the defendants stood admitted upon the record. It was, therefore, unnecessary for the relators to prove or for the court or jury to find either that the cost of the bridge exceeded 20 cents on the $100 on the last assessment roll of the town, or that the levy of the road and bridge tax for the year in said town of Rockville was for the full amount of 60 cents on each $100.

The other objections urged by appellants against the judgment we regard as too unimportant and technical to require special attention; suffice it to say that, in our opinion, such objections are not well taken.

The peremptory writ of mandamus was properly awarded for the sum of 406.21, that'being one-half of the actual cost of the construction of the bridge.

Finding no error in the record that should reverse, the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

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    Josiah Deyo v. Edwin Ferris.

      Statute of Frauds—Fight to Floto Water through Drain.

    A parol agreement for a right to flow water through a ditch on another’s land is void, such right being an interest in lands within the Statute of Frauds.
    [Opinion filed December 9, 1887.]

      Appeal from tlie Circuit Court of Stark County; the Hon. S. S. Page, Judge, presiding.
    Mr. Miles A. Fuller, for appellant.
    Messrs. J. C. Decker and C. C. Wilson, for appellee.
   Lacey, J.

This is the same case that was in this court and decided at its May term, 1886, (22 Ill. App. 154.) when this court held that the contract upon which the suit was brought was void under the Statute of Frauds and the cause was remanded to the court below.

Thai decision is referred to for a complete statement of the facts. At the March term, 1887, of the Circuit Court, the case was again tried and a judgment was again entered against appellant for §75, the full amount of the original claim. From that judgment an appeal is again taken. The basis of the appellee’s claim is this: The appellee and appellant are the owners of adjoining lands across which runs a wide swale unfit for cultivation without drainage; the appellee’s is the lower heritance, and he had a ditch already completed across his land up to within about two rods of appellant’s land. In the fall of 1882 the parties to this suit agreed between them that appellee should extend the ditch into appellant's land and the latter should pay him §75. This contract was not reduced to writing.

We held when the case was here before, upon the evidence, that the subject of the contract was that in addition to the expense of extending the ditch about two rods onto appellant’s land, the expense of which was trifling, it was in the contemplation of the parties that appellant should have the right of way for the fiowage of the water from his land through the ditch of appellee on his land, and that this right was a part of the consideration of the contract. After a careful examination of the case and the law we held that a parol agreement concerning the right of way for fiowage of water through a ditch on another’s land is within the Statute of Frauds and void.

Hence it followed that the contract as a contract was void. We also intimated that there was a possible right of recovery on the part of appellee on the quantum, menoit for the work and labor done by appellee at appellant’s request, in digging the small portion of the ditch to and on the appellant’s land.

We find the record of the evidence much the same as it was when the case was here before. Its main features are not changed. It is now insisted that appellee had left the two rods at the upper end of his ditch unexcavated for the purposes of a farm crossing, and that the $75 was given him in part to compensate him for the expense of bridging the ditch. But this excuse can not avail for the reason that the bridge in itself was of no benefit to appellant, and he naturally would not want to pay $75 for such expense unless he got the right of way, and the bridge has not yet been built. Appellee himself testifies that the proposition made by him to appellant was “ to cut and extend the ditch through onto your land and make a good outlet for your tiling.”

This proposition appellant accepted and the twenty or twenty-five feet on appellee’s land and ten to fifteen feet onto appellant’s” land was dug. The proposition presupposed the right of way over appellee’s land for drainage for appellant’s tiling, otherwise how could there be a good outlet ” for the latter’s tile?

It is evident the verdict for $75 can not be sustained.

This oi ight to have been manifest from the decision of this court when the case was here before.

.For the error in not setting aside the verdict and granting a new trial, the judgment is reverséd and the cause remanded.

Reversed and remanded.


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    Michael Mann v. City of Elgin.

      Real Property—Purchaser of Lot, Bound by Description in Deed—Estoppel—Obstruction of Street—Ordinance—Time.

    1. The purchaser of a lot is bound, by the description contained in his deed, and is estopped from claiming more land than is therein described, or the plat as rec irded showed to be free from an adjoining street, or that he knew or by reasonable inquiry might have known was not in the street.
    2. Where a street or highway is dedicated by an individual to the public, and it appears beneficial and necessary to the public, acceptance will be presumed from slight circumstances.
    3. In the case presented, the evidence shows that the defendant knew that one-half of a certain street was on the lot purchased by him.
    [Opinion filed December 9, 1887.]
    In error to the Circuit Court of Kane County; the Hon. C. W. Upton, Judge, presiding.
    Mr. Frank Crosby, for plaintiff in error.
    Messrs. Botsford & Wayne, for defendant in error.
   Lacey, J.

This was a suit commenced before a Justice of tbe Peace by appellee against appellant for violating an ordinance of the appellee in relation to the obstruction of streets.

The appellant, in the Circuit Court on trial, was fined in the sum of 8100. The cause was tried by a jury. One P. J. Kimball, Jr., was the owner of the premises on which the division of the city was afterward laid out, and one Jenne owned the land adjoining on the north. Kimball platted the land into lots and blocks with the necessary streets, leaving a street on the north three rods wide, and by agreement with Jenne one-half the width was on Jenne’s land. The addition laid out was named and called P. J. Kimball, Jr.’s, 3d addition to Elgin, and a plat of it as recorded is as follows:

The street on the north was called North Division Street, and is the one that appellant is charged with obstructing. The original plat had no course or distance of North Division Street marked on it, but it had the width marked on it in several places, and also dotted lines running longitudinally through its center, marking the south line of Mrs. Jenne’s land and the north line of P. J. Kimball, Jr.’s, land, and showing half the street to be on each; and as showing how wide the street was on each side of the dotted line, it was on the original map marked 37j- links.

The obstruction complained of was the moving by appellant of his fence, north from the south line, as shown by the map, some 36 or 37 links to about the center of the street along its whole width.

The map showing the premises as represented by the original plat is hereto attached and showing it as now fenced.

One Knott owns the property immediately east in the same division, as will be seen by reference to the above plats, and about twenty years ago fenced it up, putting his north line fence on the south line of the street as platted off by the original‘plat, leaving 37-J links or !■£ rods of the width of the street south of Jenne’s south line. There it has remained ever since. About seventeen years before the commencement of this suit, appellant having purchased Ills property from John Waite, who claimed through conveyances from Kim-ball, (appellant’s deed bearing date May 14, 1868,) fenced it, setting his north fence on a line running west with that of Knott, leaving half of the width of the street on the Kimball addition, and one-half on Jenne’s land, as the plat shows it was laid out.

The public had for seventeen years used and occupied the street as claimed by appellee. The appellant himself swears the travel has been confined to the street limits as now claimed for seventeen years.

The map, however, showed that the width of appellant’s lot north and south was 5.87 chains, which, if it was of that width, would just about take the portion of the street as laid out by the map that was on Kimball’s land. Discovering this, fact, it appears, was the occasion of appellant moving his fence north into the street. It was evidently a mistake of the surveyor and platter of the map in not taking from the land the oue-half the street left, and shown by the plat. The appellant moved his fence into the street, as it is claimed, so as to take in the strip of land claimed to be a portion of North Division Street, just before this suit was commenced.

It is objected that the mapping was not in compliance with the statute, and as to a portion, of the signers, not properly signed, and hence the street was not legally conveyed to the public. We will not stop to inquire into that question, as we think the case can be disposed of without it. It appears that the deed from Waite to appellant conveyed to him the property by the following description, viz.: “Lot 3, Block 26, P. J. Kimball, Jr.’s, 3d Addition to E'gin as laid out an 1 recorded.” The appellant is bound by this deed and estopped from claiming any more land than the deed describes, or the plat as recorded showed was free from the street, or that appellant knew or might by reasonable inquiry have known was not in the street. At all events he must have known that 37-§- links was reserved on the north side as a street. . He built his fence accordingly and never claimed differently for over seventeen years.

The jury had a right to find from the circumstances that he had seen the original map, and seen the dotted lines and the width of the street marked thereon, also showing that half of the street was on lot 3. Mrs. Jenne had moved her fence north, leaving half the street.

The jury had abundant evidence for finding that there was half the street on his lot 3, and that he knew it at the time of his purchase. Under these circumstances he would be estopped from claiming to own any portion of the street, notwithstanding his lot did not hold out in width.' Kimball, without doubt, intended to dedicate this strip of land, links wide, on the north line of his division, to the public for the purposes of a street.

All concurred, Kimball, Waite and appellant, in recognizing the rights of the public for' seventeen years, and the public traveled and used the street for all the purposes of a street for that length of time. It does not appear that the street needed any repairs requiring the expenditure of money on it. Hence the only way the public could manifest its acceptance would lie by using it for the purposes of travel, which it did. Where a street or highway is dedicated by an individual to the public, and such appears beneficial and necessary, as in this case, acceptance on the part of the public will be presumed from slight circumstances. There is abundant evidence in the record from which the jury might find an acceptance on the part of the public.

The map on which appellant's claim to title rests shows that lot 3 did not embrace the 37-J- links in width on the north side, and that was reserved for the purposes of a street.

If the map had not been definite enough, from which alone the land described therein could have been located, but the grantor had gone on the land and located it by the aid of the map and the grantor, such location would be binding on both parties/ and the deed would have been good as to such location. By some means appellant ascertained what the proper location was, as appears from the way he fenced it, leaving out half the street; besides, the very map his lot is described by in his deed shows a street on the north, and the original map shows the width and the dividing line between Jenne and Kimball, Jr.

The jury, as we think, was fully justified in finding a verdict for appellee. The judgment is, therefore, affirmed.

Judgment affirmed.


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    Margaret Dunn v. Pickard Brothers.

      Husband and Wife—Family Expenses ”—Sec. 15, Ch. 68, R. S.

      ’ A light farm wagon is not a family expense within the meaning of Sec. 15, Chap. 68, R. S.

      [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Woodford County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Thomas Kennedy and M. L. Newell, for appellant.
    The law in question was passed by our Legislature March 30, 1874. Previous to this time, the Supreme Court of Iowa, from whence our law seems to have been taken, had held that a cook stove and fixtures used in the family (Finn v. Rose, 12 Iowa, 567) and provisions and clothing (Hawke v. Urban, 18 Iowa, 83) were family expenses under the law. Since then it has been held by the same court that a piano (Smedly v. Felt, 41 Iowa, 588), a lady’s gold watch and chain (Marquardt v. Flangher, 60 Iowa, 148), an organ (Frost v. Baker, 65 Iowa, 178), a sewing machine (3 N. W. R. 670), when used in the family under the rule stated in Smedly v. Felt, 41 Iowa, and followed by our court in Van Platen v. Krueger, 11 Ill. App. 627, were proper expenses under the statute. It has also held under the same rule that a reaping machine (McCormick v. Muth, 49 Iowa, 536), merchandise and live-stock, also a breaking plow (Russell v. Long, 52 Iowa, 250), money borrowed to pay family expenses (Davis v. Richey, 55 Iowa, 719), attorneys’ fees, etc. (Fitzgerald v. McCarty, 55 Iowa, 702), and the expenses of an insane wife in a hospital (Delaware County v. McDawelh 46 Iowa, 170), were not family expenses under the law.
    So far as we are able to find, only such articles as are used in the dwelling house seem to have been held to be “family expenses” under the law. The line seems to have been drawn at the threshold.
    Our Appellate Court in Van Platen v. Krueger, 11 Ill. App. 627, hold the words “expenses of the family” mean such expenses as were incurred for, on account of, and to be used in the family; and what would be included in the term must, within the above limitation, be determined by the circumstances of each case.
    Mr. James A. Riley, for appellees.

      “The statute does not limit the liability of the property of the wife to expenditures for necessary family expenses. It applies to the expenses of the family, without limitation or qualification as to kind or amount.” Van Platen v. Krueger, 11 Ill. App. 629. And again, “if the courts should undertake to classify family expenses into those which are and those which are not a charge upon the property of both husband and wife, they would soon find themselves involved in an intricate and uncertain maze.” Id.

    If a banker or business man in the city buys a horse and buggy, that his family may ride around in, and if it is used by them for their pleasure and enjoyment, is not that as much of a family expense as a piano (Smedley v. Felt, 41 Iowa, 588) in the house, or a lady’s gold watch and chain? Marquardt v. Flangher, 60 Iowa, 148.
    This court has held that the statute applies for the expenses of the family, without limitation or.qualification as to kind or amount. Van Platen v. Krueger, 11 Ill. App. 627. So with this buggy; even if it had been proven to be a large, strong one, it might still be a family expense. If it were purchased for and used in Dunn’s family, it is a family expense. Finn v. Rose, 12 Iowa, 565. The jury were justified in saying, after considering all the evidence, that this buggy was purchased for and used in Dunn’s family, and the verdict was manifestly in accordance with the evidence.
   Lacey, J.

This suit was brought by appellees originally before a Justice of the Peace, to recover of appellant the price, §77.50, of a two-horse, double-seated buggy, sold by the appellees, dealers in such articles, to the husband of the appellant in 1882. The suit was appealed to the Circuit Court and there again tried and judgment rendered against appellant for the amount of the claim, from which judgment this appeal is taken. The husband, to whom the buggy was sold, died before the appellant was sued, and his estate was administered upon by appellant and she took the buggy as a part of her award.

The right to recover in this case is claimed by appellees, under Sec. 15 of the act relating to husband and wife, as follows:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both hus-' band and wife, or of either of them, in favor of creditors therefor and in relation thereto they may be sued jointly or separately.” The above statute is a copy of a statute previously passed in the State of Iowa, and to the interpretations given to it by the courts of that State, prior to its adoption in this State we should, in a great measure, look for light as to its meaning. The proper solution of the question presented in this case will depend on what is meant in the said act by the term, “expenses of the family.”

ÍThis term certainly does not cover every species of articles bought which goes directly or remotely to the support of and for the benefit of the family. If such were the case there would scarcely be an article purchased that would not come within that term, “ family expenses.”

Farming implements of the farmer and the tools of the mechanic are generally used to make money for the benefit of the family, yet it would hardly be contended that such articles would be for family expenses. Anything that is used as a general thing to carry on the farm .of a farmer or the trade of a tradesman or mechanic, are not to be regarded as family expenses within the meaning of the statute. The Supreme Court of the State of Iowa has held that a cook stove and fixtures used in the family, provisions and clothing, a piano, a lady’s gold watch and chain, an organ, a sewing machine when used in the family, are expenses of the family within the meaning of the statute. Fun v. Rose, 12 Ia. 567; Hawke v. Urban, 18 Ia. 83; Smedley v. Felt, 41 Ia. 588; Marquardt v. Flangher, 60 Ia. 148; Frost v. Baker, 65 Ia. 178.

It has also been held by the same court that a reaping machine, merchandise and live stock and a breaking plow, money borrowed to pay family expenses, attorneys’ fees, and the expenses of an insane wife in a hospital, were not family expenses under the law, McCormick v. Muth, 49 Ia. 536; Russell v. Long, 52 Ia. 250; Davis v. Ritchie, 55 Ia. 719; Fitzgerald v. McCarty, 55 Ia. 702; Delaware Co. v. McDawell, 46 Ia. 170.

After a careful reading of the evidence in the ease we conclude that the buggy in question comes more fairly under the class of the articles last above decided. The buggy was a strong one and after taking out the hind seat, was very suitable for use as a light wagon around the farm and going to and from market, taking articles to market and bringing back articles for use of family or otherwise, and for use as a general “hack” wagon, and it was "generally used as a light wagon on the farm. The husband in his lifetime was a farmer engaged on the farm where he resided with his family. He had but one span of horses and one set of harness. Those horses and harness were exclusively used to the buggy. The evidence clearly shows that the buggy was used in no other way than as a general light wagon on a farm. The family may have, and sometimes did, use the buggy to ride in to church and town and other places, so they might do in a two-horse heavy wagon, but that would not change the character of the use of the wagon, and justify a recovery from the wife on account of its purchase by the husband under the head of family expense. It would hardly be claimed that the outlay for a common two-horse wagon, used for all work, even to cart the family to church, town or other places, should be classed in “family expenses.” It would occupy the same place as the reaping machine and money borrowed to pay family expenses.

We do not think the law, by judicial construction, should be extended to cover cases under the head of “family expenses” not fairly within the meaning of the statute. The courts of Iowa have gone as far in that direction as a very liberal construction of the statute would warrant. The evidence in this case is not conflicting, and, we think, fails to support the verdict. The judgment of the court below is, therefore, reversed and the cause remanded.

Reversed and remanded.


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    Patrick R. Bannon, Impl’d, etc. v. H. L. Thayer et al.

      Mechanic's Lien—Parties—Trust Deed—Foreclosure.

    1. In a proceeding to enforce a mechanic’s lien on property covered by a trust deed, the holder of the notes secured thereby and the trustee should be made parties defendant, or such ho'der will not be bound.
    2. In the case presented, the evidence shows that the holder of the lien was in possession of facts as to the ownership .of the note sufficient to put him on inquiry.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Dobbenoe Dibbll, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellant.
    Mr. C. W. Brown, for appellees.
   Lacey, J.

This was a bill in equity commenced by appellee against appellant to foreclose a certain trust deed dated May 8, 1882, executed by James Beanly and wife to George Wood-ruff, trustee, conveying to said Woodruff certain lots in the City of Joliet in trust to secure the sum of $1,000, represented by a promissory note executed by said Beanly to himself, of the same date, with interest at the rate of eight per cent, per annum, and by him indorsed to Miss A. I. Wheeler. Beanly borrowed the money. The note was due three years after date with the interest payable semi-annually. The mortgage was duly recorded of the date it bears date.

The said trust deed provided that in case of the death of the said Woodruff, trustee, then H. L. Thayer should be his-successor in trust; and said Woodruff died October 26, 1882, whereby the trust devolved on Thayer. The note was indorsed to Charles Thayer, but was the property in fact of appellee. The defense set up to the foreclosure by the appellant was ownership of the property by paramount title to it,

by virtue of a master’s deed duly executed to Mm, he being a purchaser of the property at master’s sale, which was had by virtue of a decree of the Will County Circuit Court, rendered in a mechanic’s lien suit wherein appellant was complainant, and James Beanly, Ann Beanly and George Woodruff were defendants; that after the commencement of the proceedings, George Woodruff died; that whatever interest appellee had to the property was subject to the rights of Bannon, the appellant. The mechanic’s lien foreclosed by appellant against James Beanly was for lumber and material for building two buildings on the real estate in question, the amount thereof being §790.48, was a lien on the property prior to the execution of the trust deed. At the time the mechanic’s lien suit was commenced James Beanly had become insane. Appellee became the purchaser of the note in this suit after the decree in the mechanic’s lien suit was rendered, from Miss Wheeler. Neither Miss Wheeler, the holder of the note, nor appellee was made party to the mechanic’s lien suit. The question presented in this record is, was the mechanic’s lieu foreclosure binding on Miss Wheeler, the then holder of the note, she not having been made a party to the foreclosure suit, and after the death of Woodruff appellee not being made a party. Unless there was something exceptional in this case to take it out of the operation of the general rule, the holder of the note secured by the trust deed would not be bound by the decree in the mechanic’s lien foreclosure. In such ease the appellant’s lien, by virtue of the mechanic’s lien law against the note in question, would be lost, as more than six months had expired after the money for the materials had become due, and before the holder of the note secured by the trust deed had been made a party or before this suit was commenced. Dunphy v. Riddle, 86 Ill. 22; McGraw et al. v. Bayard, 96 Ill. 146. In the last above cited case it is held that in a case Avhere the trustee is the mere agent to collect the note described in the trust deed, both the trustee and the cestui gue trust must be made parties where their interest in the real estate is sought to bo affected,otherwise their rights will not be affected by the foreclosure. In this case neither appellee was made a party after the death of Woodruff nor Miss Wheeler, the then owner of the note.

Unless there is something in this case that would take it out of the operation of the general rule, the decree of the court below should be affirmed. Counsel for appellant admits this, but he insists, however, that the appellant was excused from not making them parties, for the following reason: appellant was not in possession of facts that would reasonably put him on inquiry that Miss Wheeler was the holder of the note, nor did he know it, as a matter of fact.

We do not think that this excuse is available. The appellant had heard that the note, although payable to Beanly, had been indorsed or transferred by him for borrowed money, and he so far recognized the fact as to make Woodruff, the trustee mentioned in the trust deed, a party. The trust deed itself was on record, and was seen by the appellant’s attorneys before the suit was commenced. This disclosed that appellee was also named trustee in the event of Woodruff’s death.

Under the circumstances, the appellant should have inquired of appellee, as well as Woodruff, if the latter did not give the desired information. He could have inquired of Mrs. Beanly, who was one of the signers of the trust deed, and the fact that he was not on good terms with her would not excuse him. He could have procured his attorneys to make the inquiry. Then, if Beanly himself had been asked about it, he might not have been so insane but that he could have given the information. 'The person who took the acknowledgment of the deed was not inquired of. After the death of Wood-ruff, appellee became, by virtue of the trust deed, the trustee; the case had not yet proceeded to decree, and the appellee should have been made a party. If the ceslmique trust could not have been ascertained, then she might have been made a party, under Sec. 9, Chap. 22, R. S., by the name of the “ unknown holder of the note described in the trust deed.” Hone of these things were done, the appellant and his attorneys seeming to think that it was sufficient if the trustee, at the time the suit was commenced, was made a party.

Seeing no reason for any exception in this case to take it out of the operation of the general rule, the decree is affirmed.

Decree affirmed.


author: Baker, J.

text:
    Charles Wooley v. Minerva E. Wooley.

      Divorce—Alimony Pendente Lite—Alloivance of Gross Sum—Solicitor's Fees—Discretion—Desertion.

      1. The exercise of the power to make allowances to the wife, pending a bill for divorce, for the support, during the litigation, of herself and the children in her custody and care, and for the payment of her solicitor’s fees and other expenses of suit, is within the judicial discretion of the court wherein such bill is pending. In such cases this court will not interfere, unless there has been an abuse of discretion.
    2. The power to require the husband to pay alimony pendente lite is not affected by the statutory right of the wife to control her separate property and to enjoy her own earnings.
    3. The allowance of alimony pendente lite does not depend upon the wife’s absolute right, to a divorce. She is only required to show probable ground for a divorce. The court will not, upon a preliminary motion and upon ex parte and contradictory affidavits, undertake to determine the issues presented by the pleadings.
    4. Under some circumstances, a gross sum for temporary alimony and support may be allowed.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kendall County; the Hon. C. W. Hpton, Judge, presiding.
    Mr. Charles Wheaton, for appellant.
    Messrs. Hopkins, Aldrich & Thatcher, and P. C. Hawley, for appellee.
   Baker, J.

On the 23d day of June, 1885, Minerva E. Wooley exhibited her bill, for a divorce, against Charles Wooley, her husband, charging him with extreme and repeated cruelty. He filed an answer denying the charges in the bill, a d also filed a cross-bill for a divorce, in which he charged that his wife had wilfully and without any reasonable cause deserted him for more than two years, and alleged that she, on or about the first of Jnne, 1882, wholly disregarding her marriage vows, and without any cause, had left his bed and wholly refused to cohabit with him, and from that time and for more than three years last past, had refused to sleep with and cohabit with him, and continued so to refuse until June 10, 1885, when she, without any cause, left his house and home, and abandoned him. The substance of the answer of the wife to the cross-bill was that she had refused to sleep or have sexual intercourse with her husband for over three years for the reason he had a venereal disease and she was afraid of contracting such disease, and also on account of his extreme and repeated cruelty to her. In respect to the matter of a refusal of copula amounting to desertion, reference may be had to 1 Bishop on Marriage and Divorce (5th edition), Secs. 778 to 782, inclusive.

On the 19th day of January, 1887, the Circuit Court, upon the petition of the wife for temporary support and alimony pendente lite, and for money to pay expenses of litigation and solicitors’ fees, decreed that the husband, within sixty days, pay to the wife, or to the clerk of the court for her use, the sum of. §300, for her support and the support of the two minor children of the parties to the suit, who then were and ever since the filing of the original bill had been living with her, and to enable her to prepare her cause for trial, and further decreed that he, within the same period, pay §200 to her solicitors on account of their fees in the litigation.

The present appeal is from this order of the court for alimony 'pendente lite and for solicitors’ fees.

The fifteenth section of the Divorce Act provides that in all cases of divorce the court may require the husband to pay to the wife or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and that in every suit for a divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the. suit. The thirteenth section provides that the court may make such order concerning the custody and care of minor children of the parties during the pendency of the suit as may be deemed expedient, and for the benefit of the children.

The exercise of the power to make allowances to a wife, pending a bill for divorce, for the support during the litigation of herself and the children in her custody and care, and for the payment of her solicitors’ fees and other expenses of suit, is a matter that is left to the judicial discretion of the court in which the bill is pending; and appellate tribunals are not warranted in disturbing the decree of such court in that regard unless the circumstances are such as to quite clearly indicate there has been an abuse of discretion. Foss v. Foss 100 Ill. 576.

The ground is taken by appellant that no alimony whatever should have been given to appellee. It is urged that since the present statute, concerning husband and wife, went in force, giving the wife control of her separate property and the benefit of her own earnings, the husband is under no obligation to sup, port the wife when she ceases to cohabit with him. A sufficient answer to the elaborate argument made by counsel in that behalf is found in the fact that the power to require the husband to pay alimony during the pendency of the suit is expressly conferred by the statute. FTor does the allowance of temporary alimony depend upon the wife’s absolute right to a divorce; probable ground for a divorce is all that she is required to show. Jenkins v. Jenkins, 91 Ill. 167. This probable ground for a divorce was shown upon the hearing of the motion by the affidavit of appellee herself and the affidavits of several other persons who were intimate with the family and well acquainted with the .relations that had existed for a long space of time between her and her husband, and their conduct to ward each other. The fact a large number of counter affidavits were filed does not necessarily show the order for alimony was improperly made. The court could not assume upon a preliminary motion and upon ex parte and contradictory affidavits to determine the issues made upon the bills and answers. Waiving any question in respect to the sufficiency of the allegations of the cross-bill to entitle appellant to a divorce, it would seem the answer of appellee thereto sets np good and sufficient cause for refusing to have sexual intercourse with appellant.

It is further urged that giving appellee $300, in gross, for temporary alimony and support was erroneous. Von Glahn v.Von Glahn, 46 Ill.134; Keating v. Keating, 48 Ill. 241; Ross v. Ross, 78 Ill. 402, and Shaw v. Shaw, 114 Ill. 586, cited by appellant, were all cases of decrees for alimony entered under the provisions of section 18 of the Divorce Act, upon the rendition of final decrees for divorce. The general rule is that alimony should consist of a stated amount to be paid at fixed periods, either annually, semi-annually, quarterly, monthly or weekly, as the court may deem most advisable. In exceptional or special cases, the fee of real property of the husband, or a life estate in such property, or a sum of money in' gross, may be awarded as alimony. Armstrong v. Armstrong, 35 Ill. 109; Dinet v. Eigenmann, 80 Ill. 274. .Incase of an allowance for mere alimony pendente lite it would be absurd to suppose a court would vest in the wife either the fee of the husband’s real property or a life estate therein. Instances, however, quite frequently arise in applications by the wife during the pendency of suit for divorce, for an allowance to pay the expenses of litigation and of temporary support, when it is eminently just and equitable that the allowance made should be a sum of money in gross. We are not prepared to hold that the present is not such a case. Appellee was in poor health and unable to earn a livelihood for either herself or the two children who were in her charge; one of these children was about nine and the other about seven years of age at the hearing of the motion; and the husband had at that time provided nothing for either her or their support for over eighteen months. She had no money, property or means of her own, unless it be the property rights which she claimed in her bill, and which were in the possession and control and stood in the name of her husband. It appeared that many of her witnesses resided out of the county in which the suit was pending, and that it would require at least $50 to take their depositions or procure their attendance at court. Deducting this $50 from the amount adjudged by the court to be paid to her, it would leave less than $14 per month to pay for the support and maintenance of herself and two children during the time that had already elapsed since the filing of the original bill. Appellant was the owner of a farm containing two hundred and forty-eight acres of land, worth from §40 to §50 an acre; and according to his own admission he was worth §6,400 over and above his indebtedness. Under the circumstances of the case, we think it was eminently proper to make an allowance of §300 in gross, in order to enable the wife-to prepare her case for trial and pay the expenses of the maintenance of herself and children. She had already, at the time of the decree, been vainly endeavoring for a year or more to obtain an order for temporary pecuniary relief.

It is also claimed that the allowance of §200 for solicitor’s fees was excessive. We do not so regard it—either from the standpoint of the financial condition of appellant, or from that of the character and extent of the legal services then already performed and that would thereafter be required. At the time of the decree for alimony and solicitors’ fees the divorce suit had been pending in the court for more than eighteen months, and although no trial upon the merits of the cause had been reached, yet numerous hotly contested controversies had arisen in the course of the litigation and had been settled by orders made both in term and in vacation, and a voluminous record of some 200 pages already made.

We find no error in the record, and the order and decree of the Circuit Court is affirmed.

Affirmed.


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    Kingman & Company v. Stephen Martin et al.

      Sales—Exclusive Territory—■Warranty—Breach—Damages.

    The warranty in a contract, guaranteeing the exclusive sale of a machine within a certain territory, is not broken by the sale within said territory of a different machine manufactured by a third party under the same patent.

      [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Kellogg & Cameron, for appellant.
    The damages for a breach of contract are confined to such as the parties must have contemplated at the time it was entered into, speculative or remote damages being excluded. Green v. Mann, 11 Ill. 613; Haven v. Wakefield, 39 Ill. 509; S. & M. R. R. Co. v. Henry, 14 Ill. 156; Priestly v. N. Ind. & C. R. R. Co., 26 Ill. 205; Olmstead v. Burke, 25 Ill. 86; Frazier v. Smith, 60 Ill. 145; Hiner v. Richter, 51 Ill. 299; Greene v. Williams, 45 Ill. 206; C., B. & Q. R. R. v. Hale, 83 Ill. 360; I. C. R. R. Co. v. Cobb, 64 Ill. 146; Moline Water Power Co. v. Waters, 10 Ill. App. 159.
    Messrs. Stevens, Lee & Horton, for appellees.
   Lacey, J.

Appellant, being a corporation, sold, by written contract, to appellees, 400 of Strowbridge broadcast seeders, manufactured by Stephen Freeman & Sons, Wisconsin, on the 31st day of October, A. D. 1885. One hundred and twenty-five dollars was acknowledged to be paid by the contract, leaving balance due §1,334.59 for the remaining seeders and other small matters.

By the terms of the same contract and as a part of its provisions the appellant guaranteed the exclusive sale of the above named seeders in certain .territory mentioned therein in the State of Illinois. The seeders were delivered under the contract. Appellees pleaded a set-off, claiming a breach of the guaranty and damages resulting therefrom, in that other seeders of the said kind were sold in the limits of the territory mentioned in the contract.

The court below allowed proof to go to the jury over the objection of appellant, showing that the Strowbridge broadcast seeder, manufactured by the “Bacine Manufacturing Company, Wisconsin,” was sold in said territory, a different machine from the one made by Stephen Freeman & Sons and not so well made and not so good, construing the warranty to extend to all “machines made under the same patent by whomsoever manufactured,” and also proof of resulting damages.

By this means the appellees procured a set-off in the verdict of the jury to the amount'of §690.

The question presented here is whether the court erred in the construction of the contract. We are of the opinion tlia the ruling was erroneous.

There were no Strowbridge broadcast seeders manufactured by Stephen Freeman & Sons, sold in the territory to which the warranty extended other than the ones sold by appellees and no pretense of any breach of the warranty unless this proof was competent.

To give the contract such a construction wa§ enlarging and extending the warranty beyond either the letter or spirit of the contract. Parties have a right to make such a contract as they choose and it is the duty of courts to enforce them as made. The Hacine Manufacturing Company was organized in 1883 and failed in 1885, before June the 4th of that year. Stephen Freeman & Sons then organized and manufactured the machine sold and mentioned in the contract in question on an improved scale, and advertised it as the “Freeman Broadcast Improved Seeder.” The Bacine seeder was spoken of between appellant and appellees as an inferior machine. The difference in the machine was well understood.

If the appellant had offered to deliver any other machine than the one manufactured by Stephen Freeman & Sons, would appellees have been compelled to accept it under the contract? Clearly not.

Even if there had been no difference save the name and brand they would have a right to demand the identical article bought, not an equivalent one. And in like manner the machine mentioned in the contract was the only one appellants guaranteed should not be sold in the prescribed territory.

There were some other minor errors but for this fatal one the judgment is reversed and the cause remanded.

Feversed and remanded.


text:
    Chicago, Burlington & Quincy Railroad Company v. Charlotte Blank, Administratrix.

      Railroads—Action for Damages for Causing Death of Employe—Negligence of Conductor—Liability of Defendant—Instructions—Fellotv-Servants.

    1. ' Where an employe who has control over other servants of the same master, with power to hire and discharge them, gives a negligent order to one of such servants, who, in obeying, causes injury to another of them, the master is liable for the damages.
    2. An instruction which is not based on the evidence or which raises an irrelevant issue, should not be given.
    3. In an action against a railroad company to recover damages for causing the death of an employe while engaged on a gravel train, it is held: That the negligence of the conductor is sufficiently stated in the declaration, it being sufficient to aver negligence in general terms; that the evidence sustains the charge of negligence contained in the declaration; that the evidence does not show negligence on the part of the engineer; that there was no error in modifying certain of the defendant’s instructions; and that the allowance of $2,150 as damages was not excessive.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Henry County; the Hon. George W. Pleasants, Judge, presiding.
    Messrs. H. Bigelow, Charles K. Ladd and O. F. Price, for appellant.
    Appellant’s first instruction asked, assumed as matter of law that the conductor, engineer, fireman, brakeman and all other persons engaged with the train in transporting gravel, were fellow-servants, and if they were, the instruction should have been given without modification, since the modification left it to the jury to find as a matter of fact whether they were fellow-servants or not.
    The conductor, with all of the persons engaged on the train, were working in the same place, to subserve the same interests, and with their occupation so related to each other that the safety of one necessarily depended to a greater or less extent upon the care of the others, and hence were fellow-servants. C. & A. R. R. Co. v. Murphy, 53 Ill. 336; Valtez v. O. & M. R’y Co., 85 Ill. 500.
    One of the tests laid down by our Supreme Court by which to determine whether a person who is injured is a fellow-servant with the one whose negligence is the proximate cause of the injury, is, to inquire if both are engaged in the same line of employment, and by this is meant the forwarding of an immediate common purpose in which both are directly engaged. C., B. & Q. R. R. v. Gregory, 58 Ill. 272; Ryan v. C & N. W. R. R. Co., 60 Ill. 171; P., Ft. W. & C. R. R. v. Powers, 74 Ill. 341.
    Mr. C. C. Wilson, for appellee.
    The master is liable for an injury to a servant resulting from the orders of a superintendent or other employe or agent having the supervision of the work, and power to employ, direct and discharge laborers. Lalor v. C, B. & Q. R. R. Co., 52 Ill. 401; Gormly v. Vulcan Iron Works, 61 Mo. 492; C. & A. R. R. Co. v. May, 108 Ill. 288, and cases there cited; Grayville v. Minneapolis & St. L. R’y Co., 10 Fed. Rep. 711; Gilmore v. Northern Pac. R’y Co., 18 Fed. Rep. 866; Corcoran v. Holbrook, 59 N. Y. 517; Mullan v. Steamship Co., 78 Pa. St. 25; Mitchell v. Robinson, 80 Ind. 281; Patterson v. Pittsburg & C. R. Co., 76 Pa. St. 389; Ford v. Fitchburg R. Co., 110 Mass. 240; Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377; Cowles v. Richmond & D. R. Co., 84 N. C. 309; Lake Shore & M. S. R’y Co. v. Lavalley, 36 Ohio St. 221.
    The employer is liable for the negligence of a superior servant whose orders the injured servant is required to obey, which causes injury to another employe, even though he be in the same general line of employment. Berea Stone Co. v. Kraft, 31 Ohio St. 287; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Pittsburg, Ft. W. & C. R’y Co. v. Devinney, 17 Ohio St. 197; Galveston, etc., R. Co. v. Delahunty, 53 Tex. 206.
    The question, what were the powers of William Henry, the conductor, and how far he stood in the company’s place and represented it to the men, is one of fact only, that is conclusively settled by the verdict. T., W. & W. R’y Co. v. Moore, 77 Ill. 217; C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272, 284; Mullen v Steamship Co., 78 Pa. St. 25; Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Delaware & Hudson Canal Co. v. Carroll, 89 Pa. St. 374.
   Lacey, J.

The deceased, Henry Blank, with a gang of men numbering about twenty-seven, in ¡November, 1886, was engaged in loading gravel on the cars of appellant, in the County of Bureau, under the control and direction of Wm. Henry, who was conductor of the train in the employ of appellant. The gravel bank from which the gravel was being taken was situated on the Buda and Rusliville branch of the appellant’s road, about three miles north of Buda, in Bureau County. A switch from the branch line runs from a point a little north, from and to the gravel pit. The train usually backs down from Buda to the gravel pit. The train, on the day of the accident, consisted of twenty-two gravel or flat cars, and a caboose or way car, and started to back down from Buda to the gravel pit. The caboose or way car, in which the men were riding, was at the south end of the train, but the caboose car could not be shoved into the gravel pit, it being wider than the space would permit. It was necessary to have it on the main track, south of the switch, till the flat ears could be shoved into the pit, and then the engine would return and get it, to. attach it to the north end of the train.

While the caboose was being backed up, a quarter of a mile before it reached the switch, the conductor, Henry, ordered the men to leave the way car and to get onto the flat car, which they all did, and about the time the last of the men were making the change, the deceased among them, the conductor ordered the brakeman to pull the pin that coupled the way car to the rest of the train, and then the signal was given to the engineer to set the air-brake on the engine, which the latter did, in obedience to the signal. This had the effect, as it was designed to have, to cause the slack to be taken up in the train, which in the whole train wrould be about the length of a car, and to slow up the main train and permit the way car to go ahead and leave the main train, and to pass the switch on the main track. By setting the air-hralces after the slack was taken up, a considerable shock or jerking of the flat cars would be experienced, which happened in this instance. The signal to set the brakes and shock came just about the time deceased and some of the other men were stepping on the hind end of the flat car, next the way car, and the jar threw the deceased and another man by the name of Rasmussen off of the end of the flat car, and they both fell on the track, and six or seven of the flat cars ran over and killed them, and for the damage to the means of support of the widow and next of.kin of deceased, this suit is brought.

The gravamen of the charge in the declaration is that the conductor, Henry, as the agent of the appellant, was negligent in giving the order to the engineer to set the air-brakes before the deceased had time to get on the flat cars after being so ordered by him, and before he had time to get so placed as to guard against the danger of being thrown from the car in the manner in which he was. The deceased was one of the gravel shovelers, and it is claimed and averred in the declaration that he was at the time in the exercise of ordinary care for his own safety. It was averred that appellant’s conductor gave deceased no notice that he was about to cut off the way car, but caused the uncoupling to be done in a violent and reckless manner. There was a verdict and judgment for appellee for tire sum of §2,150, from which this appeal is taken.

The evidence given in the case by the appellee tended to show that after the orders were given to the men to change from the way car to the flat car the conductor did not give time for all the men togetfrom the one car to the other, but that the deceased and a couple of the other men had not got over before the coupling pin was pulled by order of the conductor and the signal given to the engineer to slack, which he did just as deceased had stepped onto the flat car hut had not had time to straighten up before the shock came and threw him off, when he was killed. According to the appellee’s evidence it was a case of very gross carelessness in the conductor and caused the "death of two men.

The evidence for defendant goes to modify this somewhat and tends to show that appellee’s decedent would have had time and did have time to get out of the way of danger between the time the order to change cars was given and the shock; that the coupling pin wTas not drawn till after all ha'd gotten safely aboard the flat car, and from the custom all knew the coupling was to be made that way and should have guarded against accident occurring from the jerking of the cars caused by setting the air-brakes.

But even the evidence on the part of appellant shows that the time for the men to get on the flat car and get settled was very short before the air-brakes were set and the shock came. We are satisfied from the whole evidence that the jury were justified in finding the appellant guilty of negligence in the manner charged in the declaration.

It is, as we understand it, not contended in the appellant’s argument in chief that the verdict was against the weight of the evidence unless on the point that it shows that the conductor and deceased occupied the relation of co-employes of a common master. In the reply brief it is claimed, however, that the cause of the accident was deceased’s own. carelessness, and that the jury was prejudiced in giving its verdict. The declaration is broad enough in its averments to charge negligence on the part of the conductor in giving the order to uncouple and to take up the slack or set the air-brakes, and that the injury resulted in consequence.

There are several distinct facts set out in the declaration as having been done by the conductor, a portion of which relates to the manner and time of giving the order, and the declaration further avers that “ the orders of the said conductor were p-iven bv him and the cars cut off and moved as aforesaid in a v careless and negligent manner and in the total disregard of the safety of said Blank and other laborers on the train and without any caution to him, said Blank.” That by reason of the said orders T)y the said condtuetor, the said way car and flat cars were suddenly separated and violently jerked and moved in an unusual, violent and reckless manner, causing said deceased to fall from the car, etc. The accident is stated to be caused by the violent jerking of the cars and throwing deceased under them by that means; but the cause of deceased being in a position to be injured when the shock came was, as is claimed, the order given in negligent manner, by being at a wrong time, without notice, and sooner than had usually been the custom, and sooner than deceased had a right to expect, and before he could guard against it. The manner of the negligence need not be fully stated in the declaration; it is sufficient to aver negligence in general terms. The manner of jerking of the cars was stated to be negligent and caused by the conductor’s negligent order. That is one of the points of negligence stated but it is not necessary to prove every averment as stated, so that enough of the charge is proven to make out a case.

The proof shows that there was always more or less jerking in slowing up, and enough to make it dangerous for a man standing on the cars unguarded and unprepared for it.

We think the declaration is sufficient and not obnoxious to the charges made against it by counsel for appellant. It amounts to a charge that the conductor negligently, under the surrounding circumstances, gave an order to slack up the train and thereby set in operation causes that reasonably might have been foreseen would, and actually did, result in the death of deceased. There is no charge in the declaration that the death of Blank was caused by any negligence of the engineer who set the air-brakes. Nor is there anjr claim in the instructions given for appellee that there was any right of recovery except from the proof that the conductor gave the negligent orders to slack the train as he did.

ISTor do we think the third of appellee’s instructions is erroneous in stating “that if the conductor gave general directions to the brakeman in regard to cutting off the way car, and on the occasion in question was present and saw the brakeman pull the coupling pin and signal to the engineer to slow up, it made no difference; it was the same as though he did it himself.”

The evidence tended to show that he had given general directions to the brakeman to make the signals to slow up the train and at the time the signal was given was present and ordered the uncoupling and did not object to the signal being given at that time. This is equivalent to giving the signal himself. The question of the liability of the appellant on the case stated in the declaration is not an open one in this State. Where an employe of a master having control over other servants of the same master, with the power to hire and discharge them, while engaged in some work of the master gives a negligent order to one of such servants, who, in obeying, causes injury to another of such servants, the common master is responsible for the damages done. Such superintending employe is regarded as standing in the place of the master as his agent in giving the order. It is another excep" tion to the general rule that the common mas ter is not responsible for the negligence of a common servant where another is injured in consequence. C., B. & Q. R. R. Co. v. May, 108 Ill. 288; Wabash R. R. Co. v. Harleck, opinion Supreme Court Ill., filed at Ottawa, June, 1887. This court is bound by those decisions.

The next objection is the modifying, by the court, the second offered instruction for appellant and giving it as modified. It is as follows: “If you believe from the evidence that the conductor of the train gave or caused to be given the usual and proper signal for the engineer to slow up or slacken the speed of the train, and gave the deceased timely notice, to enable him to prepare for the natural effect of the slowing up according to such signal, but that the engineer in attempting to obey such signal jerked the car on which deceased was standing more than usual, so that thereby the deceased was thrown from the car and killed, such jerking of the car would not, under the pleading in this case, be the carelessness, if carelessness it was, of the defendant, and the plaintiff would not be entitled to recover.”

The words in italics constitute the modification made by the court.

Two questions arise: 1. Was the instruction as asked proper. 2. As modified did it work harm to the appellants even if incorrect. We are of the opinion that the instruction was erroneous as asked for want of evidence to support it and otherwise, and also after it was modified for the same reason, and as modified worked no injury to appellants in any event. The object appellant had in view in offering this instruction was to raise an issue as to whether or not the cause of the accident was the negligence of the engineer in the manner of handling the train. If so, the negligence of the engineer would be that of a fellow-servant engaged in the same line of employment with deceased, and no recovery could be had.

The instruction as asked ignored the idea that any negligence on the part of the conductor concurring with any supposed negligence of the engineer would have any effect to prevent the negligence of the latter from standing for the cause of the accident. For the instruction says that if the jury “believe from the evidence that the conductor of the train gave or caused to be given the usual and proper signals for the engineer to slow up or to slacken the speed of the train, but that the engineer, etc., was at fault in handling the train, etc., there could be no recovery.

It is seen that this introduction to the instruction does not negative the idea that there was any negligence on the part of the conductor in the time and circumstances of ordering the siunal in the particular complained of before deceased had time, after being ordered to leave one car, to reach the other and get securely seated. The usual and proper signals may have been given, but negligence in regard to time and circumstance remain. The instruction then amounted to the same as saying that it made no difference if the conductor was negligent in ordering the signal to slow up, yet if it was usual and proper as a signal, then, in case the engineer was negligent as to the manner of slowing up the train and the deceased was killed thereby, appellee could not recover.

This instruction was erroneous, as asked, for the reason that if the conductor gave the signal to slow up negligently and the engineer also was negligent, and the accident occurred in consequence of the two acts of negligence, the appellant would not be freed from liability.

The court undertook to modify it in a manner to exclude the idea of negligence on the part of the conductor by adding, “ and (the conductor) gave the deceased timely notice to enable him to prepare for the natural effect of slowing up according to such' signal.” It is true that there might have been other circumstances to excuse the conductor from any charge of negligence not stated in the modification, but we do not think the evidence discloses any. But even if there were other circumstances overlooked by the court that would have excused the conductor from negligence on the issue presented by the instruction besides that added by the court, and the appellant thereby cut off from its benefits and the instruction rendered useless in the form given, the appellant had no right to complain, as the instruction was bad as asked and not hurtful as given.

The main complaint made by counsel for appellant to the modification of the instruction is that it ignores the idea that deceased was bound to use ordinary care for his own safety.” This is not a just criticism. The object of the instruction was not to lay down the law as the duty of deceased to care for his own safety, but rather, as to whether the conductor was sufficiently free from negligence to allow the responsibility for the accident to be shifted onto the shoulders of the engineer. It was a side issue raised with the intent to shift the burden of responsibility from a responsible to an irresponsible party; from a conductor, for whose negligence appellant would be responsible, to an engineer, for whose acts it would not be. If the deceased were negligent it was of no consequence whether the one or the other or both of appellant’s servants were negligent. In neither event could appellee recover.

The jury, in appellant’s instruction No. 4, was fully instructed on this point. It is as follows: “If the deceased was familiar with the manner in which such train was usually handled at or near the gravel pit south of Buda where he was killed, and at the time of his death the train was being handled in the usual manner at the place, and that his death was caused by a want of ordinary care on his part .in placing himself in a dangerous position, so that he fell or was jerked off the car, on which he was standing, onto the track, and was run over and killed .by the cars, etc., you will find for defendant.”

The jury could not, in the face of the above instruction, have been misled on the point suggested, and in view of the fact that the modified instruction complained of did. not purport to deal with this question. The court was fully justified also in refusing it on the grounds that there was no sufficient evidence on which to base it.

The evidence both on the part of the appellee and appellant concurs that there was no unusual jerk from the slacking of the train, caused by setting the air-brakes. There is positively no proof of any carelessness of the engineer. The brakes were set in the usual and ordinary manner and no unusual shock was experienced. The shock was only such as might naturally be expected and was only sufficient to knock a man off the train who was not sufficiently balanced or braced.

The evidence of II. A. Bullock, the engineer, introduced by appellant itself, entirely contradicts and disproves any carelessness on his part and shows that the jerk was an ordinary one. He swears: “ When I saw the signal I applied the brakes a little, so as to slow up gradually.” Again, “When I received the signal I applied the air-brakes as light as I could at first.” “ I applied the brakes that morning just as I always did.” He testifies that the train was running from six to eight miles per hour that morning. “ If it (the train) was slackened so the men fell down it might be quick and it might not.” “ It would take a considerable jerk to throw a man down.” The conductor himself swears: “ The jerk was no more severe than usual.” There appeared to be no effort on the trial to show that the fault was on the engineer in causing an unusual jerk in stopping the train, and there is no proof to that effect, neither do the instructions for appellee allude to it. The evidence would not justify the jury in finding there was. It was therefore improper to raise such an issue, which could alone be mischievous in distracting the mind of the jury by directing it to such an issue.

The court did not err in giving the instruction as modified or in refusing to give it as asked. The modification of appellant’s sixth modified instruction as given was not error. It would have been proper to have refused it entirely, as there was no evidence on which to base it. The modification rendered it harmless. There was no question of the liability of fellow-servants in the case. All other modifications of appellant’s proposed instructions were correct. The damages in our judgment are not excessive. The life of an industrious workingman, like deceased, ought to be worth the sum found by the jury in their verdict. The question of damages in cases like the one at bar is largely within the sound discretion of the jury trying the case. Perceiving no error in the record sufficient to reverse, the judgment is therefore affirmed.

Judgment affirmed.


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    George W. Brent v. Kenner Brent.

      Set-Off—Mutual Judgments—Claim of Attorney for Fees and Disbursements—Fifth Exception, Sec. 60, Chap. 77, JR. S.

    The fifth exception, specified in Sec. 60, Chap. 77, R. S., allowing an attorney’s claim for fees for services rendered and disbursements in procuring a judgment, priority over the set-off of a judgment in favor of the judgment debtor against his client, is general, and not limited in its application to fees and disbursements for which he has a lien at law or in equity.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Warren County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Greer & Dryden and Porter & Macdill, for appellant.
    “Attorneys have no lien upon judgments recovered in this State for fees.” Humphrey v. Browning, 46 Ill. 476; Forsythe v. Beveridge, 52 Ill. 268; LaFramboise v. Grow, 56 Ill. 197.
    All that is intended to be secured by the fifth exception is “ the fees and disbursements legally chargeable and taxable against the party as costs.” Humphrey et al. v. Browning et al., 46 Ill, 476 ; Shapely v. Burrows, 4 N. H. 347; Wells v. Hatch, 43 N. H. 247; Forsythe v. Beveridge, 52 Ill. 268.
    Messrs. James W. Davidson and W. C. Norcross, for appellee.
   Lacey, J.

On the 21st of May, 1886, appellee recovered a judgment against appellant in the Circuit Court for the sum of §125 and costs (§205.90), and the appellee being indebted to Davidson and Morcross, his attorneys in the case, in a sum for legal services in the case to a greater amount than the judgment assigned in writing under his hand and seal, on the date of the judgment, the said, judgment to his said attorneys to apply on their fees as far as the judgment would go, all of which assignment and facts connected therewith the appellant, at the time, had due notice, and Davidson and Morcross knew of the existence of the judgment in favor of appellant against appellee hereafter mentioned at the time of the assignment.

On the 24th day of July, 1886, the said Davidson and Horcross, the assignees of the judgment, caused an execution to be issued and placed it in the hands of J. W. Bolán, Sheriff of Warren County, for collection. The appellant, on the same day, had executions issued on four several judgments in his favor, out of the Circuit Court of said county, where they were rendered against the appellee, Kenner Brent, and placed in the hands of the same'Sheriff for collection, to wit: One dated September 26, 1882, for §35.85; one dated January 24, 1882, for §26.80; one dated December, 1883, for §58.10, and one dated January 24, 1886, for §13.75. At the time the said last executions were issued and placed in the Sheriff’s hands, the appellant demanded of the Sheriff that they should be set off against the execution in favor of appellee against appellant, and enough money was paid in to the Sheriff at the same time to pay the costs called for by the execution and fee bill in favor of appellee.

At the September term, 1886, of the Circuit Court of said county, Davidson and Eorcross made a motion in said court for a rule on the Sheriff, John W. Bolán, to pay over $125, amount collected by him on execution in favor of appellee against appellant, the judgment having been assigned to the said Davidson and Eorcross.

The court took the matter under advisement and afterward, on the 5th day of March, 1887, held and decided the motion in favor of the said Davidson and Eorcross, and ordered the said sum with the interest due thereon to be paid over to them, from which said order this appeal is taken.

It is claimed by the appellant that he has the right to set off his judgments against appellee’s judgment against him, under and by virtue of sections 58 and 59 of Bevised Statutes, Chap. 77, entitled “Judgments, Decrees, etc.” The appellee insists, however, that the case falls within the second and fifth exceptions, specified in Sec. 60 of the above act. The sections and exceptions in question read as follows:

Sec. 58. “ Executions between the same parties may be set off, one against another, if required by either party as prescribed in the following section.”

Sec. 59. “ When one of the executions is delivered to an officer to be executed, the debtor therein may deliver his execution therein to the same officer, whether the second execution is directed to the same or any other officer, and the officer shall apply it as far as it will extend to the satisfaction of the first execution and the balance on the larger execution may be collected and paid in the same manner as if there had been no set-off.”

Sec. 60. “ Such set-off shall not be allowed in the following cases: * * * Second. When the sum due on the first execution was lawfully and in good faith assigned to another person, before the creditor in the second execution became entitled to the sum due thereon.” * * * Fifth.

“ Nor shall it be allowed as to so much of the first execution as is due to the attorney in that suit for his fees and disbursements therein.”

We will not stop to inquire whether the appellee’s right to the money in question under the assignment can be sustained under the second exception or not, as it will not be necessary ; but will proceed to consider his rights under the fifth exception.

It is insisted by counsel for the appellant that the fifth exception was intended to apply to attorney’s fees only in case where such fees and disbursements are legally chargeable and taxable against a party as costs,” as in cases of the assignment of dower and partition and in cases where an attorney had a lien on the judgment.

The case of Forsythe v. Browning, 52 Ill 268, is cited as showing an attorney had no lien on the judgment which he recovers for his client. We thinlc the statute was intended to apply and-operate in favor of the attorney recovering the judgment in a broader sense than as contended for by counsel for appellant.

Of course as between the attorney and his client the attorney would have no lien, and the client might assume the control of the judgment and sell and dispose of it without his attorney’s consent, but if the attorney once collect it he then may retain his fee and the client would have to allow it.

The Legislature was creating a new remedy in favor of creditors to enable them to collect their judgment by way of set-off, in a summary way. The Legislature no doubt considered the fact that an attorney’s claim for fees and disbursements rendered in the very judgment that the judgment creditor would be allowed to appropriate was, as a rule, as meritorious, and in many cases more so, than the claim of the judgment creditor, who had no lien on the judgment which by the law being enacted he would be allowed, from a certain point not clearly defined by the statute. It was therefore thought just and proper, no doubt, to protect the attorney and not allow his fees to be intercepted in that way. In this case the judgment was procured through the skill and hard labor of Davidson and Norcross, which, without that or the equally hard services of some other attorney, would probably never have been recovered, and the appellee’s right thereto never established, and the attorney’s fee as admitted was reasonably worth the entire amount.

Would it be just and equitable to allow appellant to appropriate it to the payment of his judgment against appellee?

And it is insisted that by virtue of the statute the attorney could not secure himself by purchasing it from his client; that by virtue of the statute all appellant’s existing judgments against appellee became a lien on it from the very moment it was rendered, they having been previously recovered.

If this be so, which we are not called on to decide, then the attorney’s claim would be hopeless if his client was poor and he had to depend on the judgment he should procure .for his fees and disbursements. This would have a tendency to prevent the poor from procuring legal assistance.

The language of the statute is that the sections in question should not apply “to so much of the first execution as is due to the attorney in that suit for his fees and disbursements therein.”

What is meant by the words “fees and disbursements due therein?”

This evidently means fees and disbursements due for services rendered and money expended in the suit in behalf of the client. “ Therein” ! In the suit! That amount would be due him! Therefore that amount of the execution would be due to the attorney. This should not be set off. In referring to a part of the execution being due to the attorney it was not intended to mean that the attorney must have an actual lien on any portion of it, but it was used in the sense that that much of the execution as was equal to the amount due the attorney for his fees and disbursements in the suit in which the judgment was rendered, should not be set off.

To use strict and .technical language, it would not he proper to say that any portion of the execution was due to the attorney, not even if he had a lien on it for his fees, nor if a portion of the judgment was for attorney’s fees under some agreement or statute. The entire execution would still be due to the judgment creditor. If the Legislature had intended to confine the claim of the attorney to cases where he had some bind of a lien on the proceeds of the execution, it would have used very different language.

It would have used language libe this: ££ Should not apply to so much of the execution upon which the attorney has a lien under the law or in equity for his fees and disbursements therein.”

To thus restrict the application of the statute as claimed would be to reduce it as to attorney’s claims for fees and disbursements to exceedingly narrow limits.

It seems to us it must have been the intention of the Legislature, in passing the above act, to give it general effect, and to make the attorney’s claim for his fees and disbursements for services rendered and money expended in procuring a judgment a preferred claim as against a judgment creditor of his client who seeks to appropriate his client’s judgment, under the provisions of the above statute.

So holding, the judgment of the court below is affirmed.

Judgment affirmed.