text:
    The Lake Erie & Western Railroad Company v. Harmon Helmerick.

      Railroads—Fires—Negligence—-Defective Spark Arrester—Separation of Jury—Evidence—Instructions.

    1. In an action to recover damages suffered by fire alleged to have been ignited by sparks escaping from a locomotive engine, this court declines to interfere with the verdict for plaintiff, there being a conflict of evidence and no substantial error in the instructions.
    2. Evidence as to smoke arising along the line of a railroad, some time after the passage of a, train, is competent in an action alleging loss by fire through the negligence óf the company.
    3. Where the material parts of instructions refused are incorporated in those given, no complaint can be made.
    4. While it is proper to refuse an instruction which is argumentative and calculated to lead the minds of the jury in a particular direction, this court will not reverse, where the argument is unimportant and there is no such undue reference to particular features of the proof as to warrant such action.
    5. The mere separation of the jury is not sufficient ground for reversal where no injury is shown.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding.
    Mr. Milton H. Cloud, for appellant.
    Appellee’s fifth instruction assumes that “a new improvement has been made, and has been tested and generally approved as the better appliance,” and tells the jury, in effect, that it was the duty of appellant to adopt such new improvement. This was error. Yundt v. Hartrunft, 41 Ill. 9; Small v. Brainard, 44 Ill. 355; Hassett v. Johnson, 48 Ill. 68; Adams v. Smith, 58 Ill. 417-21; Jamison v. Graham, 57 Ill. 94; Farnan v. Childs, 66 Ill. 544; St. L., A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Wilson v. Bauman, 80 Ill. 493; Gohn v. Doerle, 85 Ill. 514.

      The sixth instruction announces no rule of law by which the jury are to be governed, but is confined to questions of fact only. This is a direct violation of section 51 of the practice act. 2 Starr & C. Ill. Stat., p. 1814, 52.
    It singles out that part of the evidence which is purely theoretical, and which is shown to be erroneous, even in theory, by the great weight of the evidence, and tells the jury that upon it alone they are to determine a controlling fact in the case.
    It entirely ignores and takes from the jury the evidence of witnesses who testify to the condition of repair the engine was in, and also the manner of its operation, as well as the character of the engineer operating it. It excludes also from the consideration of the jury the fact that sparks may be carried considerable distances by the wind, and that the wind was blowing at. the timos these fires occurred; all of which matters wove involved, in this very inquiry, and were more important tobe considered in arriving at its correct determination than was the matter to which the court called the attention of the jury as being the only one they need consider on that point. This was highly improper and misleading. C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Hatch v. Marsh, 71 Ill. 370-4; St. L. & L. E. Ry. Co. v. Britz, 72 Ill. 256-61; Ogden v. Kirby, 79 Ill. 555; France v. Badger, 79 Ill. 441-56; Evans v. George, 80 Ill. 51—4; Cushman v. Cogswell, 86 Ill. 62; Protection Life Ins. Co. v. Dill, 91 Ill. 175-7.
    The instruction is a mere argument of the facts in favor of appellee. C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Thorp v. Goewey, 85 Ill. 611.
    And was long and involved and tended to confuse and lead the minds of the jury from facts proper to be considered. Roe v. Taylor, 45 Ill. 485; Chapman v. Cawrey, 50 Ill. 512; Thompson v. Force, 65 Ill. 370.
    That it was improper on all these points, and also for the reason that it pretended to recite part of the testimony in the case. See E. & W. G. R. Co. v. People ex rel. 98 Ill. 584.
    Messrs. Cook & Moffett and Tiptoh & IIoffett, for appellee.

      “We have often decided that it is negligence in a railroad company, failing to provide all the most approved appliances to arrest sparks issuing from the smoke stacks of its engines.” I. C. R. R. Co. v. McClelland, 42 Ill. 355.
    They should be required to provide and keep constantly in use, and in proper repair, the most approved machinery to prevent fire spreading from their engines to the farms and buildings along the line of their roads. T., P. & W. R. R. Co. v. Pindar et al., 53 Ill. 447; I. C. R. R. Co. v. Mills, 42 Ill. 408; O. & M. R. R. Co. v. Shanfelt, 47 Ill. 497.
    Experience has demonstrated that railway companies, by the use of certain mechanical contrivances, can prevent the emission of sparks from locomotive engines, in such quantities, at least, as would not be at all dangerous to property in the immediate proximity. C. & A. R. R. Co. v. Quaintance, 58 Ill. 389.
    Negligence ought to be implied from the escape of fire, and the onus should be upon the company ágainst'which an action is brought to show that all the most approved mechanical contrivances were used upon the engine to prevent its escape. Bass v. C., B. & Q. R. R. Co., 27 Ill. 9.
    Our sixth instruction is attacked as ‘‘highly improper and misleading.” There was certainly abundant evidence upon which to found it. Instead of interfering with the province of the jury, it simply informed them that if they believed certain facts from the evidence, then it was for them to say whether certain material things necessary for appellant’s defense had been proven. The jury had a right from these facts alone, to find for appellee. Sibley v. Northern Pacific R. R. Co., 21 N. W. Rep. 732; I., B. & W. R. R. Co. v. Nicewander et al., 21 Ill. App. 305.
    This instruction was given upon one branch of the case and does not, by word or implication, exclude other evidence as to the sufficiency of appellant’s appliance. These facts, if proven, furnish direct evidence that the engine or appliance was out of order. Babcock et al. v. Chicago & N. W. Ry. Co., 62 Iowa, 593; Slosson v. Burlington, C. R. & N. Ry. Co., 60 Iowa, 214.

      The jury had a right to, and should determine from the evidence whether an undue amount of sparks had been emitted and produced the fires. Great Western R. R. Co. v. Haworth, 39 Ill. 346.
    The mere separation of the jurors where there is no ground for suspicion that they have been tampered with, is no cause for a new trial. Miller v People, 39 Ill. 457; Jones v. Warner, 81 Ill. 343; Parsons v. Huff, 38 Me. 137; Edrington v. Kiger, 4 Tex. 89; State v. Barton, 19 Mo. 227; Downer v. Baxter, 30 Vt. 467.
   Wall, P. J.

The appellee recovered a judgment against the appellant for §225, on account of damages to meadow and hedge from fire set by locomotive engines of appellant. There were two fires, one on the 3d of August, 1887, the other on the 5tli of the same month. Both were set by the same engine, Ho. 41, hauling the local freight train east. It is not altogether certain whether the fire, in either case, started on the right of way or on the adjoining premises of the plaintiff, but as the appellant insists, and as is perhaps true, it is probable that it started beyond the right of way.

There is sufficient evidence to warrant the verdict as to the amount of damages, and so far as questions of fact are concerned, the field is narrowed to the single point as to whether the engine was properly equipped with a spark arrester, in good repair at the time, and was properly handled. .

The fire having been set by the engine of defendant, a prima facie case of negligence appeared. Chap. 114, Par. 104, Starr & C. Ill. Stat. And the on/us devolved upon the defendant to prove compliance with its legal duty, in providing suitable means to prevent the escape of fire.

It appeared that the engine set not only the fires upon plaintiff’s land, but quite a number of other fires in that vicinity at the same time; and if it is true that in each instance the spark alighted beyond the right of way, there was much to induce the belief that the spark arrester in use was out of repair, or that it was sufficient in its mode of construction.

It did not appear that the engine was overworked or that the speed was unusual, so that the inquiry is again limited and affects only the mode of construction and the then condition of the spark arrester. There was proof that the device in use would probably not throw a spark with sufficient fire to ignite the grass as far as was done if in good order, and while there was evidence tending to show that it was in good order, yet the significant fact remained that the engine was throwing too much fire.

In this connection it is proper to notice the sixth instruction. given for plaintiff, which was, in effect, that though it might appear from the evidence that the engine had upon it the most approved appliance to prevent the escape of fire, yet if the jury believed from the evidence that an engine so equipped, in good .order and carefully managed, would not allow sparks to escape of such a size as to carry and set fire at a greater distance than twenty-five feet, and that this engine being so equipped did throw sparks of such a size as to carry fire into plaintiff’s field a greater distance than twenty-five feet, then it would be for the jury to say whether, at the time, the appliance was in good order and the engine properly handled. There was evidence upon which to predicate this proposition, but the principal objection taken to the instruction is that it omitted all reference to certain positive evidence tending to show that the appliance was in good order, and that sparks might he carried by the wind a greater distance. The point in the instruction is as to the emission of a spark large enough to carry and set fire the distance named, and it is not important whether the spark was itself borne by the wind or by the force by which it was thrown out.

The value of the spark arrester is mainly in confining and breaking up the spark so that when it escapes its capacity to carry fire will be so reduced as to render it comparatively harmless; and it was with reference to this aspect of the subject that the instruction was presented.

Another instruction given at the instance of defendant told the jury that if they believed the fire would not have been carried so far but for the wind, and that there is no contrivance known and approved which would have prevented ■ such escape and carrying of fire by the wind, then defendant was not liable, whether it had the best appliance or not. Hor was it.necessary to embody in this instruction a reference to the positive proof tending to show this appliance was then in good order. The instruction was dealing with a theory simply supported by proof that certain consecpiences would not follow without certain conditions or causes, and if the consequence appeared, the jury should determine whether the supposed condition did in fact exist. The syllogism involved would of course warrant the conclusion that the condition or cause was there—and so the proposition might have been stated. Perhaps the greatest real objection to the instruction is that it is argumentative. All instructions are so necessarily to some extent; even the simplest statement of the law with reference to facts admitted or assumed, or to hypothetical facts, will always set up a process of reasoning which partakes of argument more or less.

When an instruction is too argumentative, and therefore is too much ' calculated to lead the mind of the jury 'in a particular direction, there is error; and whether there is error in the given case must depend upon all the circumstances and conditions that are present. The argument here involved is so elementary and so self-evident that it need not have been suggested, nor can we say that a reference to it by the court ought to be deemed “ reversible error.” When all the instructions touching upon this aspect of the case are considered, we can not say there was in this one such undue reference to particular features of the proof as to warrant us in reversing the judgment.

•The fifth instruction for plaintiff is objected to because it assumes too much as to new improvements and tells the jury in effect, it was the duty of appellant to adopt such new improvements. We think it is not faulty in that respect.

Objections urged to other instructions for plaintiff are not substantial, and there is no occasion to take the time necessary to analyze each instruction and demonstrate the untenable nature of each objection. It is objected that the court erred in refusing certain instructions asked by appellant, but on examination we find that the material and substantial portion of those refused is contained in those given, so that there is no real ground of complaint in this respect.

It is also objected that the court erred in allowing plaintiff to prove by a witness that he saw smoke along the line of the road after this engine 41 had passed, but not at the plaintiff’s premises. It is admitted that it would have been competent to prove that there was fire after it had passed, but that the proof of smoke presupposed better evidence as to its origin and cause. It can not be supposed that there was necessarily any one who knew more than these witnesses; what they knew was competent. When smoke is seen, fire is to be presumed ; and while those who actually saw the fire might have given a more helpful statement than those who saw the smoke merely, yet the one is as competent as the other; and the value of the proof would be for the jury to determine.

It is urged, finally, that the judge of the court erred in permitting the jury to separate about the hour of midnight until 3:30 a. m. This action of the court was accompanied by very full directions to guard the jury against receiving any outside communications or impressions, and there is nothing to show that there was any evil result of such separation. In this there was no error. In capital cases even, where life is at stake, the separation of a jury without consent is not of itself error and ground for new trial. Something more must be shown ; it must be shown that the defendant might have been prejudiced by it; that the jurors, or some of them, might have been tampered with or improperly influenced or some means exerted over them in consequence of their separation so as to affect the verdict. Reins v. The People, etc., 30 Ill. 256; Miller v. The People, etc., 39 Ill. 457.

As has been stated already, the main point for the jury to settle was whether the defendant had used proper care to prevent the escape of fire; and while, as to this, there was conflict and room for difference of opinion, yet we think the conclusion reached is not without sufficient warrant in the proof.

The law was presented to the jury so fully and fairly by the instructions when considered as a series, that it would, in our opinion, be a perversion of justice to reverse the judgment because of any of the errors alleged. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    Daniel Cohen v. John V. Farwell et al.

      Voluntary Assignments—Jurisdiction of County Court—See. 3, Act of 1877—Pleading.

    1. The jurisdiction of the County Court in matters of voluntary assignment depends upon the execution of an assignment substantially in the mode prescribed by the statute.
    2. A transfer by a debtor of all bis property to a trustee for the benefit of certain of his creditors, leaving others unsecured, no intention being shown to follow the statute governing voluntary assignments, is not within the jurisdiction of the County Court touching assignments for the benefit of creditors.
    [Opinion filed November 23, 1888.]
    In error to the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. B. Manw, for plaintiff in error.
    It will not be contended that the County Court can obtain any jurisdiction unless an assignment has been in fact made. This is not an attack by defendants in error upon a fraudulent assignment, but is a claim on their part that an assignment has been made.
    The instrument itself, without the benefit of any explanation by the circumstances and agreements concurring with its execution, does not amount to an assignment. To constitute a paper such an assignment as will give the County Court jurisdiction, it must be of such a formal and valid nature as to render the property in the hands of the assignee free from attachment at the suit of a creditor and the entire proceeds thereof free from garnishment. It is not enough that the instrument should be good inter partes; itmnst be good as to all persons who may be interested in the property with which it deals. This must be the rule because the assignment is the jurisdictional fact which must exist before the County Court can act.
    If this instrument had been intended as an assignment it would have been insufficient and invalid for the reason that it was not executed as required by the statute.
    An acknowledgment is absolutely necessary to the validity of an assignment, and the failure to acknowledge is not cured by the delivery of the property to the assignee. Hardmann v. Bowen, 39 N. Y. 196.
    This case has been approvingly commented upon and reaffirmed by the courts of New York in the following cases: Britton v. Lorenx, 45 N. Y. 51; Fairchild v. Gwynne, 16 Abb. Pr. 23; 14 Abb. N. C. 447.
    It was the intention of our Legislature to create a new and complete law governing assignments, or at least to make very important modifications of the common law. In such an event the provisions of the statute become mandatory. This position is not in the least weakened by those cases which hold that the provisions of the statute which govern the action of the assignee after the assignment is made, are merely directory. The act of the assignor is the first step in the process of an assignment. When he acts properly, then others besides the assignee become interested in the matter, and their rights are properly to be protected against his acts of misprision. The assignor and assignee are governed by entirely different degrees of strictness in the application of the statutory requirements.
    That an acknowledgment is necessary seems to have been admitted by the Supreme Court in Zimmerman v. Willard, 114 Ill. 364.
    It seems perfectly plain that this so-called assignment, because of its defects apparent upon its face, could not withstand the attack of any one hostile to it, and therefore can not be held to be such an assignment as gives to the County Court jurisdiction in the premises.
    Messrs. Tenney, Basheord & Tenney and E. R. E. Kim- ' brough, for defendants in error.

      When an insolvent debtor makes a transfer by which substantially all his property is placed in the hands of one who is to dispose of the same, and from the proceeds pay other creditors of the grantor, the transaction, whatever be its form, is in law an assignment for the benefit of creditors within the true meaning of the statutes regulating such transfers. The transfer may be irregular, and lack some of the formalities usually found in deeds of assignment; but if its effect upon the debtor’s property is substantially what would be accomplished by a regular assignment, it will be held to be one, even though the parties may claim that they intended to have it operate in quite a different manner. When so construed it may be declared entirely void, or enforced for the equal benefit of all creditors. That is a matter of local law. In some States an assignment which lacks the requirements pointed out by statute, is by the statute declared to be void. In others, as in Illinois, the objectionable features are simply expunged, and the estate administered for the benefit of all creditors. But the principle above stated pervades all the cases, and the courts give to the transfer the effect which the statute prescribes. And in all the States, which, like our own, merely declare the preferential features void, the courts have been uniform in giving a broad and liberal construction to the statute, in order that its equitable purpose may not be judicially defeated by a narrow and technical reading of its terms. The question in each case has been, not, “ Has a valid assignment been made?” but “Has an assignment been made?”
    A leading case on the question, and one which in its essential facts is very similar to the one at bar, is Harkrader v. Leiby, 4 Ohio St. 602. See also, Bloom v. Noggle, 4 Ohio St. 45; Brown v. Webb, 20 Ohio, 389; Bonns v. Carter, 31 N. W. Rep. 381.
    The statute of Pennsylvania regulating assignments is almost literally like ours. Under it a bill of sale to one creditor, to pay himself and three others, was held to be an assignment. Englebert v. Blanjot, 2 Wharton, 240.
    So, also, a letter of attorney to collect money and pay it to certain creditors in designated order was held an assignment. “If, then, the letter of attorney and the acts done in pursuance of it virtually constituted an assignment, it was decisively within the power of the statute to regulate transfers for the benefit of creditors; else these statutes might be evaded, and the pernicious power to prefer be retained by changing the form of the instrument.” Watson v. Bagaley, 12 Pa. St. 164; See, also, Fallon’s Appeal, 42 Pa. St. 235; Miners’ Nat. Bank’s Appeal, 57 Pa. St. 193; Wallace v. Wainwright, 87 Pa. St. 263; Lucas v. Sunbury & E. R. Co., 32 Pa. St. 458.
    The rule for which ive contend is thoroughly established in Wisconsin. In Page v. Smith, 24 Wis. 368, a bill of sale' with an agreement that the proceeds of the property should be applied in payment of the claims of the vendee and other creditors of the vendor was held to be an assignment. A later case in the same State, and one which shows the tendency of the recent decisions on this question, is Winner v. Hoyt, 28 Northwestern Rep. 380; See, also, Martin v. Hausman, 14 Fed. Rep. 160; Weil v. Pollock, 30 Fed. Rep. 813; Woonsocket Rubber Co. v. Falley, 30 Fed. Rep. 808, and the cases cited.
    In Minnesota it is held that when a conveyance is made to a creditor under an agreement by which he is to sell the property, and out of the proceeds pay his own and other debts of the assignor, he becomes a trustee, and the transfer is an assignment. Truitt v. Caldwell, 3 Minn. 364.
    The same rule is laid down in the following cases: Harkrader v. Leiby, 4 Ohio St. 602; Bloom v. Noggle, Ibid. 45; Winner v. Hoyt, 28 N. W. Rep. (Wis.) 380; Murphy v. Caldwell, 50 Ala. 461; Bonns v. Carter, 31 N. W. Rep. (Neb.) 381; Lucas v. S. & E. R., 32 Pa. St. 458; Page v. Smith, 24 Wis. 368; Ingram v. Osborn, 35 N. W. Rep. (Wis.) 304.
    Another distinguishing mark of an assignment is that it does not merely pledge the property as security for the payment of the debts, as in the case of a mortgage; it appropriates it absolutely to their payment by giving the assignee power to raise a fund by sale to pay them. Burr ill on Assign., Sec. 4; Crow v. Beardsley, 68 Mo. 438; Hoffman v. Mackall, 50 Ohio St. 124. This power is not a mere license to sell upon breach of some condition; bnt the purpose for which the property is placed in his hands, is to have it sold, and the fund thus created applied in payment of the grantor’s debts.
   Wall, P. J.

The appellees filed their petition in the County Court alleging that they were creditors of one George Silverman, who had recently transferred, by an instrument in writing which is set out in liceo verba, all his estate, consisting of a stock of goods, to the appellant as trustee, for the purpose of securing certain creditors named ; that said Silverman was insolvent; that the transfer was in effect an assignment for the benefit of creditors with unlawful preferences; that the trustee was proceeding to cany out the provisions of the said transfer; that he was a non-resident, had given no bond, and praying that he might be required to appear before the court, file a schedule of the property and submit to the jurisdiction of the court; and for reasons urged, that he might then be removed and an unobjectionable person appointed assignee, and that the estate of said Silverman should then be administered upon, under the direction of the County Court.

To this petition the appellant filed his answer, to which a demurrer was interposed. The demurrer was sustained and an order entered according to the prayer of the petition, removing appellant and appointing John G. Thompson assignee in his stead. From this order an appeal was prosecuted to the Circuit Court where the judgment of the County Court was affirmed, and an appeal is now prosecuted to this court. The position is taken by' appellee that the transfer in question was in a legal aspect an assignment of the debtor’s estate for the benefit of creditors with unlawful preferences. •It was alleged in the petition that the property conveyed was all the debtor had and that he was then insolvent. These two allegations are neither admitted nor denied in the answer, and, if the rules of chancery pleading (which would seem to be analogous) are applicable, it was incumbent upon the petitioner to prove them. They are material to the case made by the petition and it seems clear that it was error to grant relief as therein prayed with no evidence to support them.

Aside, however, from the question of pleading, we are brought to the more important inquiry whether, admitting the petition to be true, the County Court properly assumed jurisdiction to administer upon the estate of Silverman as though he had made a voluntary assignment.

It must be of course conceded that the County Court derived whatever power it may possess in that regard from the act of 1877, entitled “ An act concerning voluntary assignments and conferring jurisdiction therein upon County Courts.” The various provisions of this statute were examined and analyzed at length by the Supreme Court in the case of Hanchett v. Waterbury, 115 Ill. 220. It was there held that, when a voluntary assignment is made under the statute (and there can be no valid assignment except under the statute) the County Court is invested with a new and special jurisdiction to administer the estate of the insolvent, exclusive in its character, except that under peculiar circumstances a court of equity may intervene to prevent a failure of justice.

In Preston v. Spaulding, 120 Ill. 208, it was held that when a voluntary assignment is made under the statute, and the property has passed to the assignee, the County Court is vested with ample jurisdiction to control the disposition of the property and adjust conflicting claims thereto, but that it was not to be understood that the County Court was by that act invested with general chancery powers and that in respect to matters of a purely equitable character specially cognizable in courts of equity, resort must still be had to the courts of general chancery jurisdiction.

In both of these cases the provisions of the 13th section were noticed and it was observed that thereby a new principle has been engrafted upon the law of assignment prohibiting all preferences among creditors and requiring a fro rata distribution of the assets.

Considering the provisions of the statute in the light of these decisions we are of opinion that it is a prerequisite to the jurisdiction of the County Court that a voluntary assignment should be executed, substantially in the mode pointed out by the law. It is not enough that the debtor has by some other method (consisting of one or a greater number of acts or transfers all in pursuance of a general design) surrendered his entire property for the payment of his debts, or that in so doing he has so arranged that some of his creditors may be preferred to others in violation of the rule contained in said section 13.

In Preston v. Spaulding, supra (p. 217), it was said: The statute is silent as to the form of the instrument or instruments by which an insolvent debtor may effect an assignment. The declaration of assignment, which is to evidence the intention to make a voluntary assignment, it would seem must be in writing, for it must be acknowledged and recorded in the county and have annexed a verified inventory of the estate and a list of creditors, etc.; but an incorrect inventory and list in no way affects the validity of the assignment, nor is the inventory conclusive as to the amount of the debtor’s estate.”

So also in Zimmerman v. Willard, 114 Ill. 364, it was assumed that'the acknowledgment required by the first section of the act was necessary. It is true that in neither one of the cases above cited was the question directly presented as to the necessity of a compliance with the terms of the act in order to create such an assignment as would invest the County Court with jurisdiction, but it is quite apparent that it was so assumed throughout. It can not be presumed that when the Legislature provided for this new jurisdiction in so important a matter and pointed out in clear terms the mode to be followed in executing the instrument which was to be the foundation of the proceedings, that it was intended that any substantial requirement might be dispensed with. Such a construction would enlarge indefinitely the provisions of the enactment and is not to be justified. The present case will illustrate the possible, and indeed, the natural result of adding by judicial intendment to the unambiguous language of the law.

Turning to the instrument of transfer set out in the petition, we find that it was not acknowledged nor recorded as required by section one of the assignment act; that it purports merely to secure the debts named, and authorizes the trustee to sell in the mode prescribed only so much of the property as necessary to pay the particular debts. It was alleged in the answer and admitted by the demurrer that when the transfer was made, the creditors therein mentioned held judgment notes which were then due and upon which they threatened immediate proceedings and that Silverman was unable to obtain a further extension. There was here no compliance with the statute; evidently nothing of the sort was intended or thought of. It may be that the debtor in effect gave a lien upon all he possessed in favor of the creditors named, and that it would all have been appropriated in payment of their claims, but we do not understand that this is conclusive in favor of the position assumed by appellee.

To quote again from Preston v. Spaulding (p. 217), “It will be observed the act does not assume to interfere in the slightest degree with the action of the debtor while he retains the dominion of his property. Notwithstanding the act, he may now, as heretofore, in good faith sell his property, mortgage or pledge it, to secure a bona fide debt, or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor. But when he reaches the point where he is ready and determines to yield the dominion of his property, and makes an assignment for the benefit of his creditors under the statute, the act declares that the effect of such assignment shall be the sun-ender and conveyance of all his estate not exempt by law, to his assignee, rendering void all preferences and bringing about the distribution of his estate equally among his bona fide creditors; and we hold that it is within the spirit and intent of the statute that when the debtor has formed a determination to voluntarily dispose of his whole estate and has entered upon that determination, it is immaterial into how many parts the performance or execution of that determination may be broken. The law will regard all his acts having for their object and effect the disposition of his estate, as parts of the single transaction, and on the execution of the formal assignment it will, under the statute, draw to it, and the law will regard as embraced within its provisions, all prior acts of the debtor having for their object and purpose the voluntary transfer or disposition of his estate to or for his creditors, and if any preferences are shown to have been given by the debtor to one creditor over another in such disposition of the estate, full effect will be given the assignment and such preferences will, in a court of equity, be declared void, and set aside as in fraud of the statute.”

This exposition of the statute manifestly excludes the theory of the petition upon which the relief is based, and renders it unnecessary to further discuss the question involved. The cases cited from other States, whatever they may establish as to the law in those States under their legislation, can not control in the construction of our statute.

To support the judgment in this case makes it necessary to hold that when a debtor by mortgage or other transfer gives a lien upon all his property in favor of certain creditors, leaving others unsecured, the County Court may at once assume j urisdiction, declare the act to be an assignment for the benefit of creditors, and proceed to administer upon the entire estate of the insolvent, making a disposition fro rata among all creditors, regardless of the prior lien intended by the debtor; all this upon the theory that it is authorized by the statute, when confessedly the statute has not been followed and when there was no purpose of the debtor to proceed under it. To state the proposition is to refute it.

"VVe are not called upon to determine whether the principle of See. 13, that in an assignment there can be no preferences, shall be extended and applied to all cases where a failing debtor makes over all he has for the benefit of a part of his creditors, there being no statutory assignment; but if so, no doubt it would be enforced in any tribunal where, in proceedings appropriate to such tribunal, the point might properly arise. The mere existence of such a principle can not give the County Court jurisdiction to administer the relief as sought in this case. The judgment will be reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded.


text:
    Darby Miner v. Fred Armstrong.

      Exemption—Schedule—Time — Replevin — Household Furniture—Demand—Instructions.

      1. In an action of replevin brought to recover household furniture held under execution, there being a conflict of evidence as t® whether the defendant made out and delivered his schedule within ten days from the time he received notice of the execution, this court declines to interfere with the verdict in his favor.
    2. It is proper to refuse an instruction which contains nothing which is not contained in those given.
    [Opinion filed November 30, 1888.]
    Appeal from the County Court of Jersey County; the Hon. O. T. Thompson, Judge, presiding.
    Mr. Jos. S. Case, for appellant.
    Mr. Thomas F. Feens, for appellee.
   Wall, P. J.

This was replevin for certain chattels consisting of household goods levied upon by appellant as a constable by virtue of two writs of execution issued by a justice of the peace against the appellee.

The main question upon the trial was whether the appellee made his schedule and delivered it to the appellant within ten days after receiving notice of the executions. As to this the evidence was in hopeless conflict, the appellee testifying one way and the appellant and the attorney for the plaintiff in execution testifying the other. It is not worth while to state this evidence in detail nor to refer to the various features of it which counsel press upon us as supporting their respective positions. It is enough to say that in view of the better opportunity enjoyed by the jury and the trial judge to weigh the testimony, the record does not d isclose such a variance between the proof and the finding as to warrant the interference of this court.

The evidence of the plaintiff considered alone is ample to support his right to the property, and while it is flatly contradicted by that of the defendant, the jury were at liberty to give the one greater credence than the other, and when testimony is conflicting there is no more appropriate tribunal to settle the conflict.

We need not ad\ ert to the familiar rule on this subject, nor need we state the considerations which induce and sustain the rule.

It is objected that the court erred in giving the third instruction for plaintiff. The instruction is somewhat obscure, but the point involved seems to be as to the necessity of a demand before bringing suit. If it be conceded the instruction is faulty, yet it is apparent it could do no harm, for there is no doubt whatever that a demand was made, and we can not suppose that if this instruction had not been given the result would have heen different. Had the court given an obscure or misleading instruction upon the point really in dispute, there would be more substantial ground for complaint.

Appellant also urges as error the refusal of the court to give the third, eighth and ninth instructions asked on his behalf. We think all that was contained in the third and ninth proper to be given will be found in several others which the court gave at the instance of the appellant, and that the eighth was properly refused.

We find no important error in the record, and the judgment will be affirmed.

Judgment affirmed.


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    The Jacksonville Southeastern Railway Company v. Peter Rabbit et al.

      Railroads—Freight—Rebate—Conditional Contract—Misrepresentation —Instructions.

    In an action against a carrier to recover a rebate on certain freight bills, it is held: That the agreement for the lower rate claimed by the plaintiffs was obtained by a suppression of the whole truth in regard to a competing rate; and that there is error in an instruction adven for them, as not embracing the condition upon which defendant’s offer was made.
    [Opinion filed November 30, 1888.]
    Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
    Messrs. Moebison & Whitlock, for appellant.
    Messrs. Bbown & Ejbbt, for appellees.
   Wall, P. J.

The appellees recovered $251 in an action of assumpsit against the appellant for rebate upon certain freight bills for hauling brick from Virdon to Jacksonville. Appellees desiring to bid on a contract for street paving in Jacksonville, asked Mr. Greenleaf, the superintendent of appellant, what rate per thousand would be charged for freight on brick from Virden. He answered 81.50. Some time after, being the day before the contract was to be let, the appellees again went to Greeenleaf, and urged him to make the rate 81-25, representing that the Wabash road would give the latter rate from Sterling, and the brick would come from there if Green-leaf would not do as well as the Wabash.

Upon their distinct assertion that Milleisen, the local agent of the Wabash, had offered to make the rate 81.25, Greenleaf said he would do the same, and then the appellees went and made their bid, under which the contract was awarded to them.

After they had received the freight bill for the brick hauled the first month, in which the rate was fixed at §1.50, appellees asked Greenleaf to correct it, when he said that he had given the reduced rate on the representation or condition that the Wabash had offered the same, and that he would see Milleisen, and if appellees had correctly stated the matter, he would make them a voucher for the difference when the brick were all hauled. From the evidence of Greenleaf and Milleisen it appears that appellees had not fairly stated the matter to Greenleaf in the interview on the day before the contract was let, and that what Milleisen had said to them was based on their representation that Greenleaf would make the rate £1.25, as it had been the year before.

There is conflict in the evidence as to what appellees did say to Milleisen inducing him to make the offer reported to Greenleaf, but we think the testimony strongly tends to prove that they did not inform Greenleaf of all that was said on that occasion. Certainly they did not tell him anything from which he would infer that the rate offered by Milleisen was induced by their statement that he, Greenleaf, would make it £1.25. It is not doubtful that had he suspected such a thing he would have adhered to his original rate. If his version and that of Milleisen shall be accepted, then it is apparent that the appellees did not fairly represent the matter and that an offer based upon such representation would not bo binding. The proof being in this condition, the first instruction given for appellees should have been modified so as to embrace the element and condition that Greenleaffs offer was based upon an understanding of the circumstances inducing the agent of the Wabash to name the rate in question.

The jury might well infer that even though the appellees had not stated all the conversation with Milleisen showing how he came to name §1.25, and had thereby misled Green-leaf, by telling him only a part of the truth, yet if Greenleaf had made the rate, provided Milleisen had named it, then it was binding. A suppression of truth is equivalent to a suggestión of falsehood, ordinarily, and would he so in this instance very clearly.

Instructions given for appellant did not present the point here involved in such a way as to cure the vice of this instruction, and the error thus committed is of such gravity as to render it necessary to reverse the judgment and remand the cause for another trial.

Reversed and remanded.


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    William B. Smith v. Lewis W. Dauel.

      Exemptions—Schedule—Appraisement—Trial by Court—Propositions of Law—Replevin.

    1. Where the debtor presents a schedule of his property to a constable holding an execution against him, it is the duty of the officer to summon appraisers without delay. In the case presented, it was proper for the debtor to go from home on the third day, taking part of the property in question, the officer having given him no notice of the intended appraisement on that day,
    2. An appraisement made in the absence of part of the scheduled property of the debtor is invalid.
    3. Where the appraisement is irregular and the officer levies on property of the debtor, the latter may maintain an action of replevin/or such property.
    4. It is the special province of this court to review questions of fact and determine whether the finding of the trial court should be set aside. It is not essential to this review that propositions of law should have been submitted to the court below.
    [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. J. M. Weakly and Kerriok, Lucas & Spencer, for appellant.

      Messrs. Turrón & Beaver, for appellee.
   Wall, P. J.

This was an action of replevin which was instituted by the appellant before a justice of the peace, from whose judgment an appeal was prosecuted to the Circuit Court, whore, upon a trial before the conrt, a jury being waived, there was judgment against the plaintiff.

The case was submitted upon an agreed state of facts from which it appears that the defendant, being a constable, held two writs of execution issued by a justice of the peace against the plaintiff, who wras the head of a family and then residing with the same; that upon being notified of the executions, the plaintiff made schedule “of his personal property in due form of law and delivered the same to the defendant; that the defendant then informed the plaintiff the property would be appraised if the execution plaintiffs desired; that at the instance of said execution plaintiffs the defendant appointed appraisers and returned to the house of the plaintiff three days after the making of the schedule, with the appraisers, for the purpose of making an appraisement; that the plaintiff had no notice of said appraisement or of the intended appraisement further than above stated, and wras not then at home, having gone to Lexington, a distance of some eight miles, with the horses, buggy and harness, being a part of the property named in the schedule ; that the appraisement was then made in his absence and in the absence of the property which the jdaintiff had with him, and the entire valuation fixed at 8446.19 ; that two of the appraisers had seen the absent property but had never made an examination of it, though they deemed themselves well enough informed to fix the value thereof, and that the third appraiser had never seen it and had no knowledge of its value ; that the property was, in fact, not worth moro than 8í00 ; that plaintiff had no notice of the appraisement until after the appraisers had gone home, and that he made no selection or demand of any sort until the defendant, three days after the appraisement, having made no further demand of the plaintiff, levied upon the property in suit; whereupon the plaintiff having demanded a return of the same, brought the present action.

■ The question is, whether there was such a compliance with law as to warrant the constable in levying upon the property. The statute provides that an execution debtor desiring to avail himself of the benefit of the act shall make a schedule upon oath of all his personal property and deliver the same to the officer, and u thereupon the officer having the execution shall summon three householders who, after being duly sworn to fairly and impartially appraise the property of the debtor, shall fix a fair valuation upon each article contained in said schedule, and the debtor shall then select from such schedule the articles he or she may desire to retain, the aggregate value of which shall not exceed the amount exempted, to which he or she may be entitled, and deliver the remainder to the officer having the writ.”

The language here employed is not ambiguous. The officer shall thereiopon summon appraisers—that is to say, he shall do so without delay; as soon as in the nature of things it car reasonably be done; and it is implied that the debtor shall hold his property in readiness for a reasonable time for the purpose of appraisement. In this instance the officer informed the debtor that he would summon appraisers if desired to do so by the plaintiffs in execution, but fixed no time when he would act or when he would notify the debtor. The latter was not, under such circumstances, required to remain in waiting, and he might well expect that he would be advised of further proceedings. Certainly, he might go from home on the third day, having had no notice, without forfeiting his rights under the law. The officer having by his own act made it uncertain what further would be done or when he would move again, should, in justice to the debtor, have advised him of the intended proceedings, or when on going to his home he found him and a part of the property absent, should have awaited his return, there being no indication of an intent to evade the law on the part of the debtor, and his absence under the circumstances not being at all unreasonable or improper.

It is manifest from the terms of the section that it contemplates the property shall be present when the appraisement is made, and if it is not, without the fault of the debtor, lie may complain if he has been ■ in anywise injured. Menzie v. Kelley, 8 Ill. App. 261. It appears that the property included in the schedule was worth less than the amount fixed by the appraisers, and that the whole value did not exceed the amount exempt under the statute.

The absent property had never been seen by one of the appraisers, and.though the other two had noticed it casually they had not examined it. It consisted of a buggy and harness and two horses, and in view of the facts as agreed, we may reasonably conclude that had all the property in the schedule been examined by them on that occasion, as the law requires, the value would have been fixed fairly and that the debtor would have been able to assert his claim to all as exempt from execution.

The law does not provide for another appraisement where there has been informal and irregular action, and it is silent as to what steps the debtor shall take to protect himself, in the event of a substantial failure by the officer to comply with its terms. It is obvious that in such case the debtor may regard the whole proceeding as a nullity and may recover his property by the appropriate remedy of replevin.

We are of opinion that this appraisement was so imperfectly conducted as to furnish no warrant for the subsequent levy, and that the property should have been returned to the debtor on his demand.

It is urged, however, by appellee, that the question here discussed can not be considered, because there were no propositions of law submitted to the Circuit Court to be held or refused. The eases referred to in support of this position were in the Supreme Court and had passed through this court, where the questions of fact had been settled.

It is especially within the province of this court to examine and review questions of fact and to determine whether there is any occasion to set aside the finding of the trial court in that respect. It is not essential to such review that propositions of law should have been submitted.

When a case is submitted to the court for trial, a jury being waived, the finding is to be treated precisely as the verdict of a jury. Field v. C. & A. R. R. Co., 71 Ill. 458. If, upon examination, the Appellate Court is of opinion that though the trial court committed no error in its instruction, yet the verdict is so manifestly against the evidence that it ought not to stand, the judgment will be reversed; and so where the issue of fact is tried by'the court and is improperly decided, though there is no error in rulings upon the law.

The provision of Sec. 42 of the practice act referred to, is chiefly valuable to enable a party to so separate questions of law from questions of fact, that upon an'appeal, when it is not clear that the latter have been improperly decided, the former may be examined, and if it appears from the propositions held or refused that the court proceeded upon an unsound view of the law the error ma3r be corrected.

Where no propositions of law are submitted to the trial court and the judgment is affirmed in this court, an appeal hence to the Supreme Court will be fruitless so far as questions of fact are concerned, because by the statute those are settled by the judgment of this court. Nothing more is held in this respect bj^ the cases cited by appellee.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    John H. Dougherty v. Herald Catlett.

      Real Estate—Convey anee of—Statute of Frauds.

    A verbal contract for the sale of real estate is within the statute of frauds.
    [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.

      Mr. J. B. Mann, for appellant.
    Mr. W. B. Lawrence, for appellee.
   Wall, P. J.

This case was here at the May term, 1886, and the opinion then rendered will he found in 21 Ill. App. 116.

After the case was reversed the plaintiff tiled an amended declaration in which, after stating the contract of sale from defendant to the plaintiff referred to in the former opinion, it was averred that the plaintiff sold and conveyed the undivided one-half of said property to one McCabe, and that afterward, while in possession of the remaining half, the plaintiff, by verbal agreement, sold said remaining half to defendant and surrendered possession to him for the snm of §3,500, and that defendant had since sold and conveyed the premises to a third person for the sum of <Bé,000 with the knowledge of the plaintiff. The defendant interposed a plea of the statute of frauds, to which plaintiff demurred.

The demurrer was overruled and judgment was rendered against the plaintiff for costs. We are of opinion that the amendment of the declaration has not obviated the objection that the transaction is within the statute of frauds, and that the court properly held the plea a valid defense. The judgment will be affirmed.

Judgment affirmed.


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    John Bauerschmitz v. Patrick Bailey.

      Forcible Entry and Detainer—Wrongful Entry by Married Woman—■ Liability of Husband.

    In. an action of forcible entry and detainer this conrt declines to interfere with the verdict for plaintiff, although the active party in making the entry complained of was the wife of the defendant.

      [Opinion filed November 30, 1888.]
    Appeal from the Circuit Court of Sangamon County; the' Hon. J. A. Cbbighlton, Judge, presiding.
    Messrs. Conbling & Gbout, for appellant.
    Messrs. Obendobee & Patton and Jambs M. Gbaham, for appellee.
   Wall, P. J.

This was an action of forcible entry and detainer, in which the verdict was for plaintiff and judgment accordingly.

It is urged as ground of reversal that the evidence fails to show that defendant had anything to do with the wrongful entry, and that at most he merely acquiesced in the act of his wife, who invaded the possession of the plaintiff, and that he was merely enjoying the possession thus unlawfully obtained by her.

It appears that the wife was the active participant in the matter, but there is enough in the proof to justify the conclusion that the husband had advised and consented to the proceeding if he had not expressly directed it. He was the head of the family; the wife was acting as his agent, and ho should he regarded as the responsible party.

The verdict accords with the merits of the case. Ho important error appears in the ruling of the court upon admission of evidence or giving instructions, and the judgment must be affirmed. Judgment affirmed. ■


author: Per Curiam,.

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    Mathew Clawson v. Estate of Sarah G. Moore.

      Administration—Claim for Board—Evidence.

    This court, upon a review of the evidence, sustains (lie judgment of the court below, that it does not support a claim against an estate for the board and care of the deceased, who was the mother of the claimant’s wife and resided in his family for a number of years prior to her death.

      [Opinion filed November 30, 1888.]
    In error to the Circuit Court of BoWitt County; the Hon. G. W. Herdham, Judge, presiding.
    Messrs. Graham & Monson, for appellant.
    Express contracts to make compensation for services performed or board furnished between members of one family, particularly if the relation of parent and child exists, will be good; and in special circumstances not differing greatly, an agreement to pay will be implied. Bishop on Contracts, enlarged edition, p. 224, Sec. 223; Ensey v. Hines, 30 Kan. 704; Morton v. Rainey, 82 Ill. 215; Freeman et al., Adm’rs, v. Freeman, 65 Ill. 106; Warren v. Warren, 105 Ill. 569.
    Where services are rendered under promise to make a will in one’s favor, an action at law may, after the party dies without fulfilling his promise, be maintained against bis estate to recover the value of his services. Bishop on Contracts, cidarged edition, p. 227, Sec. 224; Shakespeare v. Markham, 10 Hun, 311, 312; Eagen v. Kergill, 1 Den. 464; Taylor v. Wood, 4 Lea, 504; Frost v. Farr, 53 Ind. 390, 392; Martin v. Wright, 13 Wend. 460; Warren v. Warren, 105 Ill. 569.
    Mr. William Booth, for appellee.
    Where services are voluntarily rendered or support furnished by those near of kin or by those sustaining near family relations, whether blood kin or not, the law will imply no contract for compensation, and unless an express contract to pay is shown in such ease no recovery can be had. Falloon v. McIntyre et al., 118 Ill. 292; Hall v. Finch, 29 Wis. 278; Sweres v. Parsons, 5 W. & S. 357; Duffy v. Duffy, 44 Pa. St. 399; Scully v. Scully, 28 Iowa, 548; Meyer v. Malcom, 20 Ill. 621; Schwartz v. Schwartz, 26 Ill. 81; Mowbry v. Mowbry, 64 Ill. 382; Bird v. Lockwood, 33 Ill. 212; Meyers v. Temme, 72 Ill. 574; Griffin v. Bank, 14 Ill. 259.
    The fact that no charge was made or bill presented for the board of Sarah G. Moore, the deceased, for eighteen years, would rebut any legal presumption that might otherwise arise of an agreement to pay. Falloon v. McIntyre, 118 Ill. 292; Hall v. Finch, 29 Wis. 278; Eitel v. Walter, 2 Ill. App. 287; Insurance Co. v. Bloodgood, 4 Wend. 652.
    Evidence to prove express promises in cases where the family relation exists must be direct, clear and positive. Loose declarations made to others or some to claimant himself will not answer. That which is only an expression of intention is inadequate for the purpose. Hall v. Finch, 29 Wis. 279; Duffy v. Duffy, 44 Pa. St. 402; Bash v. Bash, 9 Pa. St. 260; Candor’s Appeal, 5 Watts & S. 513.
   Per Curiam,.

The question arising in this case is whether there is sufficient evidence to support the claim made by the appellant against the estate of Sarah G. Moore for board and care during the later years of her life. The deceased was the mother of the wife of appellant, and had resided with the family of appellant during the period of eighteen years preceding her death, which occurred in her eightieth year. She was in poor health the greater part of the time, and not able to do anything. She owned twenty acres of land, the rent of which she always collected and appropriated to her own use.

During four or five years preceding her death appellant occupied this land and paid the rent to her as any other tenant would have done. It appeared from the proof that she said several times that appellant and his wife had been kind to her, and she supposed when she died she would give them the land; that they Ought to have it; that the daughter, appellant’s wife, ought to have it. On one of these occasions, about four years before her death, appellant was present and heard her make such statement. She made no disposition of her property by will, nor does it in any way appear that she was urged to make such or any other disposition by appellant, or that she attempted to do so, aside from the fact that a short time before her death she expressed a desire to settle up her affairs, and requested a justice of the peace to be sent for; but it does not appear what she wanted to do or whether the justice of the peace received any directions from her in regard to the settlement of her affairs.

In all this there was no express promise to pay for the hoard and care she received from appellant, nor can we say that there is such a state of proof as to justify the conclusion that the parties were intending on the one hand to pay and on the other hand to receive pay for what was done. The most that can be said of it is that she accepted the care and attention usually bestowed by children upon aged parents, and that on several occasions she expressed her sense of satisfaction at the treatment she so received and her purpose of rewarding her daughter and appellant, or her daughter, for what they had done for her. She did not carry out this purpose, nor did she attempt to do so, nor did they ever request or suggest a wish that she should. It does not appear that the course of things differed in any substantial degree during the last years of her life from that of the former years when she was living with appellant, and yet it was only during the later years that she used the expressions above referred to which are relied upon to support appellant’s claim.

She did not seem to feel under obligation to do otherwise than as she might see fit in the matter of compensating appellant or his wife, nor did they assert anything whatever upon the point. We are inclined to agree with the Circuit Court that the appellant’s claim is not supported by the proof.

As to the proposition of law submitted to the court to be held, the court committed no error. The evidence did not support its assumption of fact that the appellant relied upon the transfer of the twenty acres as compensation for said board and care. For this reason if for no other, it was properly rejected.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    Frey Brothers v. Harrison & Atchison and J. H. Harrison.

      Sales—Goods Obtained through Fraudulent Representations—Sale to Third Party—Notice—Replevin.

    In an action of replevin brought to recover goods alleged to have been obtained through fraudulent representations and sold to a third person having notice, this court declines to interfere with the judgment for defendant, there being no such evidence of notice as would vitiate the title of the purchaser.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of McLean County; the lion. O. T. Beeves, Judge, presiding.
    Messrs. Bayburn & Barry and A. E. DeMange, for appellants.
    Messrs. Fifer & Phillips and George W. Herrick, for appellees.
   Wall, P. J.

This was replevin by appellants against the appellee. One of the pleas was property in a third person, to wit, J. H. Harrison, and this issue was found for the defendants upon a trial by the court, a jury being waived. The position of the plaintiifs was that the goods were acquired by means of the fraudulent representations of the defendants and that J. H. Harrison, to whom they (defendants) subsequently sold them in payment of a debt they owed him, had such notice of the fraud that his purchase would give him no title as against the plaintiffs, who elected to disaffirm the sale. Admitting the alleged misrepresentations, we are of opinion the evidence failed to show such notice to J. H. Harrison as would vitiate his title. At least we can not say the conclusion reached by the court is so opposed to the evidence as to require us to reverse the judgment.

The propositions of law held by the court included all that was material and proper to hold contained in those refused. No error is apparent and the judgment is affirmed.

Judgment affirmed.


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    Albert Noffts et al. v. Sophia A. Koss.

      Dower—Homestead—Incumbrance—Sate to Pay Debts—Payment of Mortgage by Purchaser—Contribution by Widow — Computation of Amount.

    1. Where a widow wishes to enjoy an interest of dower or homestead'in incumbered real estate, she must pay an equitable portion of the sum paid to satisfy the incumbrance by a purchaser from the administrator on a sale to pay debts of the estate.
    2. The amount to be paid ly her should be in the same proportion that the present value of her estate computed by the life tables bears to the value of the land.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Champaign County; tl e Hon. 0. 13. Smith, Judge, presiding.
    Mr. M. W. Mathews, for appellants.
    Mr. J. W. Sim, for appellee.
   Wall, P. J.

This was a bill in chancery by a widow against a purchaser of land at an administrator’s sale, to obtain an adjudication of the rights and liability of complainant in respect to an incumbrance by mortgage upon the land as affecting the dower and homestead interests of the complainant. The facts were agreed upon as follows:

The deceased husband of complainant had purchased the land, containing eighty acres, subject to the mortgage, and died intestate,leaving the debt unpaid and the incumbrance still subsisting. The administrator presented a petition to the County Court for leave to sell real estate to pay debts, and in that proceeding the dower and homestead of the complainant widow were set off and assigned to her, including, for both interests, thirty-six and two-thirds acres, and in pursuance of the order of the County Court the administrator sold the entire tract to the defendant in the bill, the parcel not embraced by the widow’s estate, containing forty-three and onetliird acres, being offered and bid off separately from the thirty-six and two-tliird acre parcel, the latter being sold subject to said rights of the widow, and each parcel being sold subject to the mortgage, which remained in full force. Afterward the mortgage was purchased from the holder thereof, with the funds and for the benefit of the defendant, who now holds it. Before filing the bill complainant offered to pay what she considered an equitable proportion of the incumbrance, but the parties could not agree upon the amount.

The land is worth §40 per acre, or §3,200 in all.

The complainant was forty-five years old March 6, 1887. The amount paid by defendant for the incumbrance June 16, 1886, was §1,046.54. The only matter to be determined by the court was the amount, if anything, that complainant should pay upon the mortgage above referred to, either by annual installments of interest, or by the payment of a specific sum to be paid down.

. The decree finds that appellant bid for the land only what it was worth over and above the incumbrance, and expected to pay off the incumbrance as a part of the purchase price; that the money paid for the mortgage was in'pursuance of such expectation and that thereby the mortgage has been fully satisfied, and that the interests of complainant have thereby been released. From this decree an appeal is prosecuted by the defendant in the hill.

In the case of Selb v. Montague, 102 Ill. 446, it was said that if mortgaged property is bought by a stranger from the mortgagor under such circumstances as to show that he only paid for the excess over the mortgage, or so that one part of the estate satisfies the whole, the widow will be let in to claim dower if such purchaser shall obtain discharge of the mortgage, hut that this rule applies only when the mortgaged estate is acquired by a stranger by a purchase from the husband. If the husband pays the debt himself, the dower attaches to the whole estate; hut if the debt is paid by the heir after the death of the husband, this is equivalent to a purchase by the heir of that interest in the estate which is in the mortgagee, and the widow would have no right of dower in the interest so acquired by the heir, the right of the heir, however, having been acquired'by removing an incumbrance upon an estate in which the widow and heir each had an interest subordinate to the incumbrance; the widow in such case has the right, by a just contribution, to avail herself of the benefit of the purchase by the heir of the interest of the mortgagee. It was further said that a sale of the real estate by an administrator under our statute is equivalent to a sale by the heir, the administrator being made by the statute in substance the attorney in fact of the heir to make such sale.

The power of the heir where the land is mortgaged is merely to sell the equity of redemption, for that is all that vests in him.

The purchaser takes the right of the heir, no more, no less; that is, the fee subject to the mortgage. If the purchaser redeems from the mortgage he holds as the heir would have held had he paid off the mortgage. The widow can have dower only by paying her ratable share of the money necessary to discharge the mortgage. The debt paid in discharging the mortgage is not the debt of the heir. In paying that debt he is not paying his own debt, as would he the case were the debt paid by the mortgagor in person. And it was further held that the reasoning applicable to a dower intevest is equally applicable to the widow’s claim of homestead.

We are of opinion that the views thus expressed by the Supreme Court are decisive of the present case, and that the decree is erroneous in holding the mortgage canceled.

It is not the case of a. payment by the mortgagor of his own debt, nor is it a case of a sale by the husband under such circumstances as to justify, the conclusion that the mortgage debt was to be paid by the vendee .as a part of the purchase price. It is in effect a sale by the heir of the equity of redemption, the proceeds to be devoted to the payment of such debts as have been probated against the estate. The bidder at such a sale will naturally seek to get the property as low.as possible, but his bid must be the highest if he gets it.

As the equity of redemption only is sold, and as the purchaser will pay no more than ho must in order to be the best bidder, there is no room for the suggestion that the mortgage is to be paid as part of the purchase price. When that is acquired by an assignment or by a payment, it is merely an acqui ition of the interest of the mortgagee,, which of course is paramount to the rights of the widow. The widow must bear a fair proportion of the burden if she would enjoy an interest of dower or homestead in the incumbered property.

The bill recognized this liability and sought only to have the amount to be paid ascertained by a decree which would bind both parties. The present value of the widowr’s estates of dower and homestead should be computed by the life tables, and she should be required to pay a ratable share of the incumbrance. The amount she should pay of the whole debt must be in the same proportion that the value of her estates will bear to the entire value of the land.

The decree will be reversed and the cause remanded.

Reversed and rema/nded.


author: Conger, J.

text:
    James F. Long v. Lothaire B. Cockern et al.
    Mortgages—Realty—Personalty—Foreclosure—Fixtures—Estoppel— Practice,

      1. The mortgagee of realty is estopped as to third persons from claiming personal property as fixtures and included in the mortgage, by a previous action of replevin brought by him to recover the same.
    2. A real estate mortgage not executed, acknowledged and recorded in accordance with the statute in reference to chatted mortgages, can not be held to cover personal property named therein.
    3. Upon a suit brought to foreclose a mortgage upon a piece of land and a saw mill, this court declines to interfere with a decree awarding fore, closure as to the land, but refusing it as to the mill.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Brown County; the Hon. William Marsh, Judge, presiding.
    Messrs. Berry & Epler, for appellant.
    Messrs. John J. Teefey, for J. W. Metcalf, appellee.
   Conger, J.

Suit was brought below to foreclose a mortgage on a piece of land and a saw mill. The questions presented by this record grow out of the final decree rendered on the hearing upon bill, answers, replication and proofs taken. The decree awarded foreclosure as to the land, but refused it as to a steam engine and saw mill included in the mortgage, and which wore held to be personalty and not within the lien of the mortgage. From this decree complainant appeals.

The question here at issue is, whether foreclosure should not have been granted as to the saw mill and other property covered by the mortgage as well as to the land itself.

The record shows the following facts : In September, 1885, at Clayton, Illinois, James F. Long bargained to sell to L. B. Cockern a saw mill for $1,200, Cockern agreeing to give him as security a mortgage on a piece of land which he claimed as •his own, and the mill. The mill was then seven miles south of Clayton. Cockern said he would go home and make out the papers, which his wife would have to sign. The land was in fact owned by Mrs. Cockern. It was also subject to a prior mortgage of November 24, 1884, under which, on December 18, 1888, it was sold for $328.95, to which proceedings J. F. Long was not made a party. The land was rough and hilly, chiefly valuable for its timber, and was worth about §500. It was a good place to operate a saw mill. .

L. B. Cockern proposed to his wife, Emily S. Cockern, that if she would join him in a mortgage on the land he would erect a saw mill thereon and attach it thereto and operate it, and out of lumber sawed he would pay off the mortgage and leave her the land and mill free of incumbrance. She accordingly signed the mortgage. The note was made by L. B. Cockern at Carthage, Illinois, October 21, 1885, in the sum of §1,200, payable to James F. Long or order, six months after date, with interest at eight per cent, after maturity. " To secure the same, on said day L. B. Cockern and Emily S. Cockern executed to James F. Long a mortgage on “the south fifty-six acres of the east half of the southwest quarter of section number two (2), township three (3), south of range six (6), west of the fourth principal' meridian,” in Adams county, Illinois. A few days after, L. B. Cockern took the papers down to the saw mill where Long.was. Long, seeing that the saw mill was not mentioned in the mortgage, insisted on its being inserted, and L. B. Cockern thereupon wrote in the mortgage, after the word meridian, the words “together with one portable steam engine and saw mil], boiler wagon and log wagon,” doing this under his bargain with Long and in harmony with his agreement with his wife, though in her absence. The note and mortgage were delivered to Long, and Cockern took possession of the mill.

Under Cocltern’s directions, Long then put the mill on the land mortgaged. The mill was put up on sills. The boiler was sunk in the ground about level with the top. The saw mill was fastened to stakes driven into the ground to keep the track from slipping.1 A shed was put over the mill on posts. Cockern, who had just bought the mill, told Long that it was placed there for permanent use, and that the shed was put there to stay. Cockern claimed the land as his own until the mill was placed on it, when he said it belonged to his wife. Emily S. Cockern, who owned the land, states in her answer that L. B. Cockern placed the saw mill on the land under his agreement with her, and that it became part of the realty, and L. B. Cockern alleges in his answer that the saw mill was attached to and was a part of the real estate mortgaged. The decree finds as a fact that the steam engine and sawr mill were placed upon said real estate by L. B. Cockern shortly after the execution of the note and mortgage for use on the land. Long sawed timber for Cockern there about two months, in 1885 and 1886.

The note matured in April, 1886. Long then demanded payment of L. B. Cockern, but was refused. Hoiking was ever paid on the note. On June 17, 1886, Long, having failed to get a settlement, by his attorneys, Moore & Staker, brought replevin in the Adams county Circuit Court for the saw mill, engine, machinery and tools used therewith, and the boiler wagon and log wagon, and got possession of the same June 19, 1886. Long then took said property to Meredosia, Illinois, where he held it until May, 1887.

The replevin suit came up for trial at the March term, 1887. The pleas were non cejpit, non detinet, property in defendant, no property in plaintiff, and not guilty. After being called and sworn the jury was discharged and the case tried by the court. On the trial, before any judgment was rendered, on May 7, 1887, plaintiff dismissed his suit, whereupon judgment was given against plaintiff for costs, a writ of retorno habendo awarded to defendant, and case continued as to assessing damages. The writ of retorno, issued May 16, 1887, to the sheriff of Morgan county, who, May 17, 1887, seized said property in Long’s possession and turned it over to L. B. Cockern.

On May 9, 1887, two days after the replevin suit was dismissed, L. B. Cockern executed a warrant of attorney giving power to confess judgment on his note of August 26, 1886, for §1,200, to Edward B. Metcalf, of Carthage, Hancock county. On this judgment was entered May 10,1887, for §1,267.50 and costs. On May 17, 1887, the day the property was taken from Long and given to Cockern under the retorno, execution issued on said judgment to the sheriff of Morgan county whoi the next day, May 18th, levied on the property in Cockern’s possession for E. B. Metcalf, by Metcalf’s direction. Loomis? the deputy sheriff, posted notices to sell in ten days, and went down May 2Sth to sell.

Meanwhile, E. R Metcalf agreed to turn his judgment against L. B. Cockern over to his son, John W. Metcalf, defendant in this suit, to make what he could out of it and apply the proceeds on a debt his father owed him. The judgment was accordingly assigned on the record May 31, 1887.

On May 28, 1887, the day of sale under the execution, Long met Loomis, the deputy sheriff, and J. W. Metcalf, walking together at Meredosia. Long then notified Loomis that he bad a $1,200 mortgage on the mill, and told him not to sell it, and that if he did, he would hold the sheriff responsible. Metcalf says he did not hear the claim made by Long and that he knew nothing about the mortgage until he bought the mill of Cockern, but he admitted on his cross-examination that he knew at that time, there had been a replevin suit between Long and L. B. Cockern, and that the property had been put into Cockern’s hands by a writ issued in the replevin suit. Long says Cockern and Metcalf kept away from him. Loomis required an indemnifying bond before selling the mill, and as none was given, continued the sale ten days. Meanwhile, Long held the mill as custodian under the sheriff.

Before the day the sale was postponed to, Cockern went to J. W. Metcalf at work on his farm and said that time and expense would be saved by settling the matter. They went together to Meredosia. On the way there J. W. Metcalf agreed to give Cockern $500 for the mill and apply it on the judgment, and Cockern was to take the mill to Fort Madison, Iowa, and rent it of Metcalf for $60 a month. Loomis, the deputy sheriff, met them at Meredosia on the day to which the sale was continued. J. W. Metcalf and Cockern told Loomis the judgment was satisfied and for him not to sell, but did not tell him what the arrangement was. On June 14, 1887, Loomis, by Metcalf’s direction, vacated the levy and returned the execution unsatisfied, and Metcalf took possession of the mill under his arrangement with L. B. Cockern. When the mill was thus put in Metcalf’s hands, L. B. Coclcern and Loomis were present but Long was not. Cockern offered to stay and help Metcalf load the mill on the cars to take it away.

J. W. Metcalf claims to be a bona fide purchaser of the mill and other property from L. B. Cockern, relying on his •possession under the retorno habendo, and says that he had no notice of Longis claim on the mill under the mortgage before he made his purchase of Cockern. This Metcalf claims in his answer, and in his testimony.

LT. C. Bushnell, postmaster at Meredosia, testified that he had a talk with J. W. Metcalf before Cockern turned the mill over to Metcalf, in which he told Metcalf of Long’s mortgage on the mill, and Metcalf said he knew all about the mortgage. Metcalf testified that he had a talk with Bushnell then hut that he did not remember talking to Bushnell about the mill, though he would not swear he was not talking about Long’s claim against the mill.

Long testified that he did not see Cockern there that day; that they kept away from him. Cockern went home that evening. Metcalf stayed and worked at the mill to load it on the cars. Long then began this suit. The bill, filed June 17, 1887, sets up the note and mortgage, the contemplated removal of the saw-mill property by L. B. Cockern and J. W. Metcalf from the State and jurisdiction of the court; that the security was scant and L. B. Cockern insolvent, and the land sold under a prior mortgage, and prays that defendants be restrained from removing the saw-mill property from where it was; that a receiver be appointed for the same, and for a foreclosure of said mortgage on the property described therein, and for a decree against L. B. Cockern for any deficiency.

An order for a temporary injunction was made June 17,1887, and an injunction writ issued to the sheriff of Morgan county, which Loomis, deputy sheriff, served June 18, 1887, on J. W. Metcalf and the agent of the Wabash Railway Company.

When the injunction was served, the saw mill was at the depot at Meredosia, and Metcalf was putting the boiler on the cars. On June 24, 1887, the court appointed Richard Seaton receiver, who, June 25, 1S87, took possession of the saw-mill property at Meredosia, and removed it to Qaincy, Illinois, where he has since had it stored.

Emily S. Cockern, in her answer, admits her execution of the mortgage before the clause,together with one portable steam engine and saw mill, boiler wagon and log wagon,’’ was inserted therein, and that such insertion was made by L. B. Cockern at Long’s request, in her absence, and was an alteration that avoided the mortgage. She also alleges that her husband promised her if she would sign the mortgage on the premises he would put the saw mill thereon, cut enough timber to pay the debt and leave her the land and mill free from incumbrance, and for that reason she executed it; that L. B. Cockern, in pursuance of his said agreement with her, erected and placed upon the land said saw mill, which then became part of the realty. She alleges that Long took away the saw mill from the land and wasted the premises to the amount of the mortgage debt. She asks to have the property restored to its former condition, or for the waste to be set off against the debt. She alleges on information and belief that in some way, in a replevin suit between Long and L. B. Cockern, the saw mill was held to be L. B. Cockern’s personal property and was by legal process put in his hands in Morgan county, and there seized on execution against him by one Metcalf, and thus put beyond her reach and control.

L. B. Cockern, in his answer, admits executing the note and mortgage, and alleges that the steam engine and saw mill were attached to and were a part of the real estate, which belonged to E. S. Cockern; that he put the mill there to cut the timber thereon into lumber, and that if left there, the saw mill would have paid the mortgage debt and left a surplus; that on June 19, 1886, Long severed and removed the saw mill to Morgan county under a replevin writ; that the loss and damage done amounted to $1,421.87, which he asked to be set off against the debt. He denies all fraud, but says that the saw-mill property, while in Morgan county, was seized on execution for his debt and held by his creditor, and that, if lost to Long, it was lost by his wrongful severance and by no fault of his (Oockern’s). He admits the sale of the land under a prior mortgage and that he is insolvent. L. B. Ooekern says nothing in his answer of his selling the property to J. W. Metcalf on vacation of the levy.

<J. W. Metcalf answers, in substance alleging that he is informed that Long removed the steam engine and saw mill from the land to Morgan county, where he held it as personal property until May 17, 1887, when it was taken from him under a writ of •retorno habendo awarded on dismissal of Long’s replevin suit against L. B. Ooekern and given to Ooekern, whose possession it was levied on May IS, 1887, under an execution issued from Hancock county, on a judgment of E. R. Metcalf against L. B. Ooekern of May 10, 1887; that while the sheriff held said property, believing it to be L. B. Cockern’s by reason of his possession and said writ of retorno, respondent released said levy and purchased the same in good faith, for value, from L. B. Ooekern, and became the owner thereof; that he knew nothing of Long’s claim to the mill by mortgage at or before the time of such purchase; he denies all fraud, but admits that after so buying said property lie arranged with L. B. Ooekern to remove the same to Fort Madison, Iowa, to be used there by Ooekern at a monthly rental of $60.

All the answers are sworn to, but as the bill waives the oath, they have effect as pleadings only, and not evidence ; but the admissions therein made may be taken as true against the parties making them.

On November 3, 1887, the suit was dismissed as to the Wabash Railway Company, and an order of change of venue to Brown county, made on a petition of L. B. Ooekern therefor, alleging prejudice in the judge.

The decree of March 2, 1888, finds, in substance, that the allegations contained in the bill were true as therein stated, and that said mortgage is a valid and subsisting lien upon the real estate therein mentioned, and that the property described therein as “ one portable steam engine, saw mill, boiler wagon and log wagon,” was placed upon said real estate by L. B. Ooekern shortly after the execution of said note and mortgage, and before the maturity" of said note, for use upon said land, but that the said portable steam engine, saw mill, boiler wagon and log wagon were personal property and not within the lien of said mortgage; that no damages were suffered by granting the injunction; that the equities of the case are with the complainant; that there is due from L. B. Cockern to complainant for principal and interest, <$1,31:6, which is adjudged him. The decree then awards foreclosure against the land and a decree against L. B. Cockern for any deficiency on sale, approves the receiver’s report and directs him in thirty days to turn the saw-mill property over to defendant Metcalf, and dissolves the injunction without damages.

There are two pringipal questions presented by this record.

First, whether the mill was a fixture, and should have been included in the decree of foreclosure against the real estate. And secondly, if not a fixture, could appellant hold it under his mortgage as personal property.

We have prefaced this opinion by the statement of facts as submitted by counsel for appellant, which presents them fully as favorably for the appellant as the record will sustain, and we are inclined to think, under all the circumstances, the mill never became a fixture upon the mortgaged land. If, however, it could be so regarded, we think the action of Long in replevying it and treating it as personal property would estop him as against third parties from treating it as a fixture.

It is insisted, however, that the mortgage was good as a chattel mortgage to hold the mill as personalty. That when Cockern sold the mill to J\ W. Metcalf, the latter had notice of Long’s claim upon the rriill, and therefore the mortgage, although not acknowledged as a chattel mortgage, was good and valid as to him.

If the mortgage was not executed, acknowledged and recorded in accordance with the statute in reference to chattel mortgages, it was void as a chattel mortgage against all third persons, whether they had actual notice of the facts in reference to Long’s claim or not. If Metcalf acted in good faith in purchasing the mill, it is of no consequence how complete liis knowledge was of the true state of facts upon which Long bases his claim. Sage v. Browning, 51 Ill. 217; Porter v. Dement, 35 Ill. 478.

If he took it in payment of a pre-existing debt for a fan-consideration, with the bona fide intention of paying himself, it does not matter what Cockern’s motive may have been, nor how complete his knowledge of Cockern’s intentions. Bump on Fraudulent Conveyances, Chap. 8, p. 234; Gray v. St. John, 35 Ill. 222.

The decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    D. H. Davis et al. v. S. E. Smith, for use, etc.

      Negotiable Instruments—Notes—Signature by Third Person after Delivery—Joint Mahers — Instructions — Evidence — Practice — Admissibility of Note.

    1. The signature of a note by a third person at the request of the payee, after execution and delivery, does not, in the absence of a new consideration, render him liable as a joint maker thereof.
    2. It is proper on an action on such note to admit the note in evidence to prove joint liability, leaving the defendants to show by evidence outside the face of the note that no joint liability exists
    [Opinion filed November 23, 1888.]
    In error to the County Court of Macon County; the Hon. W. E. Nelson, Judge, presiding.
    Messrs. Johns & ¡Randolph and 1. A. Buckingham, for plaintiffs in error.
    Messrs. Mills Brothers, for defendant in error.
   Conger, J.

Suit in assumpsit upon the following note:

“§320.00. “ March 23d, 18b7.
“Ten months after date, for value received, I promise to pay to the order of S. E. Smith, the sum of three hundred and twenty dollars, at Woodlack & Heights’ bank, with interest at the rate of 8 per cent, per annum after due until paid.
“Dan. H. Davis,
“ S. E. Warrick.”

To which said appellants, Davis and Warrick, filed their plea denying a joint liability, verified by their several affidavits.

The evidence showed that Davis made, executed and delivered the note to Smith on the day of its date, and that on the 24th of June, 1887, Smith went to Warrick, presented him the note, and told him he wanted him to sign it, so that he (Smith) could use it in bank. That thereupon, with no new or additional considei'ation passing between any of the parties, Warrick signed the note and Smith took it away. Davis was not present, and so far as the evidence discloses, was ignorant of the fact that Warrick was to be asked to sign the note.

Hnder such circumstances there was clearly no joint liability upon the part of Davis and Warrick as makers of the note. Whether Warrick would have been liable as guarantor it is not necessary to discuss, for if true, he would not be jointly liable with Davis, the maker. But as makers of the note one was liable and the other was not; for as to Warrick the instrument was without consideration.

In Randolph on Commercial Paper, Yol. 2, Sec. 920, the 'rule is stated in the following language:

“If one becomes surety on commercial paper after it is made and delivered, the original consideration for the instrument will not suffice, but a new consideration will be needed to bind the surety. If there was an agreement at the time the note was made for certain additional signatures as sureties, and they were afterward added, the instrument not being accepted as complete until then, the surety will be bound by such consideration.” To the same effect see also Favorite v. Stidham, 84 Ind. 423; Briggs v. Daning, 48 Iowa, 550; Monson v. Drakley, 40 Conn. 552; Harwood v. Johnson, 20 Ill. 367.

The instructions upon the part of appellants seem to be in accordance with the foregoing statement of the law, while the first instruction for appellees is misleading, if not in direct conflict with such view.

But the verdict can not be sustained upon the facts as shown by the evidence, and a new trial should have been awarded.

Complaint is made that the court erred in admitting the note in evidence as prima fade sufficient upon its face to show a joint liability. In this action there was no error. The note appeared upon its face to show a joint liability. Its genuineness was not disputed by the plea. Hence it was proper to go to the jury without any preliminary proof.

The thirty-sixth section of the practice act requires that when joint liability is denied by plea verified by oath, proof of such joint liability shall be made to entitle the plaintiff to judgment. What better proof could be offered than the introduction of an instrument admitted by the defendants to have been executed by them, necessarily importing upon its face the joint liability of the makers of such instrument?

Aside from the statute, and under the common law rule, after the signatures to the note were proven to be genuine, the instrument would properly go to the jury.

If the paper did not necessarily upon its face import joint liability, then it is true, under the plea filed in this case, the plaintiff would be required to offer proof of such joint liability before offering the paper in evidence.

We think it was proper to put the note itself in evidence, as the best proof of joint liability, leaving appellants to show by evidence outside the face of the note that there was in fact no joint liability.

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

Iteversed and remanded.


author: Conger, J,

text:
    Anheuser-Busch Brewing Association v. Rudolph Hutmacher.

      Master and Servant—Recovery for Services—Evidence—Telegrams— 1 Vhether Origina Is—Contin nance—Instruction s.

    1. Where telegrams are sent by an employer to his servant directing him as to the performance of his duties, the copies thereof delivered from the receiving office must be considered originals.
    2. In an action to recover wages, evidence as to the solvency of the parties and as to the cost of processes employed in the business not connected with the contract of service, is inadmissible.
    8. In an action brought to recover for services rendered in putting up and buying ice, this court declines to interfere with the verdict for plaintiff.
    [Opinion filed November 23, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Harsh, Judge, presiding.
    Hr. George W. Fogg, for appellant.
    The Circuit Court erred in refusing to continue said cause on account of the absence of Gustav Hausman, Henry Jacob and George Krug, or to require appellee to admit the affidavit of their testimony. The affidavit of Hr. John H. Fuchs for continuance, as to them, is in all respects within the requirements of the statute, and the cause should have been continued or the affidavits admitted. R. S. 1874, 780; Sherman v. The People, 69 Ill. 55; Switzer v. Littenville, 4 Ill. App. 219, and Sprague v. Heaps, 7 Ill. App. 447.
    If a telegraphic dispatch is sought to be introduced in evidence, the original must be-produced and its execution proved precisely as any other instrument, or its loss or destruction shown, and then a copy must be proved to be a true and compared copy before its admission. Mattison v. Noyes, 25 Ill. 591; Williams v. Brickell, 37 Miss. 682; 75 Am. Dec. 88; Oregon Steamship Co. v. Otis, 14 Abb. (N. C.) 388, 394, with note and cases there collected on this question, and N. Y. & W. P. Tel. Co. v. Dryburg, 35 Pa. State, 298, and the same case in 78 Am. Dec. 338.
    Messrs. Carter & Goyert, for appellee.
    A greater degree of diligence 'and a stronger showing will be required on the second application for a continuance than on the first. Shook v. Thompson, 21 Ill. 87; Birks v. Houston, 63 Ill. 77.
    Continuance will be refused where witnesses have not been subpoenaed, or subpoenaed in apt time, or where affidavit does not show effort to get depositions. Coffey v. Fosselman, 72 Ill. 69; Richards Iron Works v. Glennon, 71 Ill. 11; Cook v. Norwood, 106 Ill. 558.
    The statement in the affidavit' for continuance, that “ this defendant fully expected and intended to try this cause at this term of this court and to have all its said witnesses present to testify on the hearing thereof ” substantially states all the diligence shown by appellant in that behalf.
    The telegraph company is the agent of the sender and the telegram as received at the end of the line is the original and primary evidence. Durkee v. Vermont, etc., 29 Vt. 140; Morgan v. People, 59 Ill. 62; W. U. Tel. Co. v. Harris, 19 Ill. App. 354; Savelend v. Green, 40 Wis. 431; Redfield on Carriers, 400.
   Conger, J,

This was an action in assumpsit to recover for services in putting up and buying ice. Appellee recovered a verdict, and judgment for $1,640.

The evidence is quite voluminous, and somewhat contradictory as to the character and value of appellee’s services, but, after carefully reviewing it all, we see no good reason for interfering with the conclusion reached by the jury.

Meither do we think there was error in the court refusing the continuance asked. It would serve no good purpose to recite at length the facts and circumstances upon which the application was based. We have carefully considered them all, and are of opinion that the Circuit Court properly exercised its discretion in refusing the continuance.

A number of telegrams from appellant or its agents to appellee were introduced in evidence. Appellee testified that they were the original messages that he received in due course of business from the telegraph office in Quincy, and they were giving him directions how to proceed with appellant’s business. There was no error in this. Under such circumstances the copy received from the receiving office is the original.

Where the party sending a message is the responsible party, and sends a message for the purpose of giving directions to be acted upon, then the message delivered at the end of the line is the original.” Redfield on Carriers, 400; Morgan v. The People, 59 Ill. 62; Scott & Jannigan on Telegraphs, Sec. 340.

There was no error in refusing to allow the question of the solvency of the respective parties to the suit to be entered into. Such a question would throw no light upon the issue being tried by the jury, nor would there have been any propriety in entering into the cost of putting up the ice.

Appellee was claiming to recover upon an express contract and not upon a quantum meruit. The contents of the Spranle letter might have been shown by appellant at the proper time, but the action of the court in refusing, to permit the question to be asked upon cross-examination was proper.

We think there was no error in the action of the court, either upon the questions of instructions or refusing a new-trial.

The principal question was one of fact, as to the amount of compensation appellee was entitled to recover, and whether he had not already received for his services all that was due him. The compensation allowed by the jury was liberal, but w-as fully authorized by the testimony of appellee and his witness.

After a careful examination of the record we can see no good reason for. interfering with the action of the court below, and therefore the judgment will be affirmed.

Judgment affirmed.