text:
    The People of the State of Illinois, Defendant in Error, v. Dora Niles, Plaintiff in Error.
    Gen. No. 8,298.
    Opinion filed April 17, 1929.
    Raymond G. Real, for plaintiff in error.
    C. M. Weinlein, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

An information consisting of four counts was filed • by the State’s Attorney of Coles county in the county court charging Dora Niles, plaintiff in error and hereinafter referred to as defendant, with violations of the Illinois Prohibition Act, Cahill’s St. ch. 43. She was convicted under each count and sentenced under the first count to serve sixty days in the county jail and to pay a fine of $500; under the second count to. serve sixty days in the county jail; under the third count to serve sixty days in the county jail and to pay a fine of $500; and under the fourth count to serve sixty days in the county jail, all sentences to run consecutively. A motion was made to quash the information, which was overruled and a motion was also made in arrest of judgment which was overruled.

It is contended by defendant that the second and fourth counts do not charge any violation of the Prohibition Act, Cahill’s St. ch. 43. These two counts are identical in language except as to the dates of the commission of the offenses. The allegation in each count describing the offense, after the preliminary averments, is, “did then and there unlawfully possess intoxicating liquor for beverage purposes, without then and there having lawful permit therefor.” The sufficiency of informations and indictments for violations of the various provisions of the Prohibition Act of this State have been considered and passed upon in many cases, but in none of which has the offense been charged in the identical words used in the information in this case. ' In the late case of People v. Holton, 326 Ill. 481, the court said in regard to the indictment in that case: ‘£ The eighth count of the indictment, plaintiff in error contends, is fatally defective because it fails to charge that he did not have a permit from the Attorney General. That count charges that plaintiff in error unlawfully and wilfully possessed intoxicating liquor; that the possession of the liquor was prohibited and unlawful and in violation of section 28 of the Prohibition Act, Cahill’s St. ch. 43, ¶ 29, and that the liquor was possessed by plaintiff in error with intent to use it in violation of the act.' It is not sufficient merely to charge an offense in the statutory language where the statute does not describe the act or acts which constitute the crime or where by its generality the statute embraces acts which it was not intended to punish, A count in an information or indictment charging the unlawful ownership or possession of intoxicating liquor under the Prohibition Act, Cahill’s St. ch. 43, should allege that such ownership or possession was without the proper or legal permit. (People v. Lewis, 319 Ill. 154; People v. Larson, 318 id. 615; People v. Nelson, 318 id. 424; People v. Berman, 316 id. 547; People v. Wallace, 316 id. 120; People v. Barnes, 314 id. 140; People v. Martin, 314 id. 110.) The allegations of the eighth count do not dispense with the necessary allegation of the want of the requisite permit, and the motion in arrest of judgment made by plaintiff in error in respect of that count should have been sustained.” In the case of People v. Masor, 238 Ill. App. 1, the information charged that the defendant did unlawfully “have in his possession intoxicating liquors for beverage purposes without a permit, said intoxicating liquors not being intended for medicinal or sacramental purposes, in violation of section 3, Illinois Prohibition Act,” and it was held, in substance, that the averments therein were but conclusions of law and not statements of facts. In the case of People v. Martin, 314 Ill. 110, the second count of the indictment charged that the defendant, “did then and there unlawfully have and possess intoxicating liquor, contrary to the form of the statute.” The court in that case held: “The use of the word ‘unlawfully’ in connection with the allegation of possession does not have any effect, inasmuch as the use of this word represents merely the conclusion of the pleader and does not state any fact from which the inference of unlawfulness would arise.” Section 3 of the Prohibition Act, Cahill’s St. ch. 43, if 3, provides, among other things, that no person shall on or after the date when this act goes into effect possess any intoxicating liquor except as authorized in the act. Section 28 provides that it shall be unlawful to have or possess any liquor intended for use in violating the act. These two sections are the only ones in relation to the unlawful possession of liquor. It was held in the case of People v. Barnes, 314 Ill. 140: “The words ‘except as authorized in this act,’ in section 3, show a legislative intent that the exceptions made constitute integral and essential elements of the offenses defined in the third and twenty-eighth sections of the act. These exceptions are so incorporated in the language defining the offenses that their ingredients are not actually described in an indictment which charges that plaintiff in error unlawfully manufactured, possessed, kept for sale or sold certain intoxicating liquor, or that she had in her possession property designed and intended for use in the unlawful manufacture of intoxicating liquor, hence each count of the indictment is fatally defective. The motion to quash the indictment should have been sustained.” In the Barnes case the second count of the indictment charged that the defendant, “did then and there unlawfully possess certain intoxicating liquor, said intoxicating liquor then and there containing more than one-half of one per cent of alcohol by volume.” The Prohibition Act, Cahill’s St. ch. 43, does not make the possession of intoxicating liquor unlawful under all circumstances. The statute provides that such possession may be lawful when it is possessed under a prescription by a physician, by a permit from the Attorney General, for sacramental and certain other purposes, and section 40 of the act, Cahill’s St. ch. 43, U41, provides: “It shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only, provided such liquors were lawfully acquired and are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein,” In the Barnes case, supra, it is further held that if an act is prohibited under certain conditions, the indictment must allege the circumstances for the purpose of showing that the prohibited act constituting the crime has been committed. An information simply-charging that a person possessed intoxicating liquor “without a lawful permit” is wholly insufficient to charge a violation of the Prohibition Act either under section 3 or section 28, Cahill’s St. ch. 43, ¶¶ 3, 29. The word “lawful” before the word “permit” is simply a conclusion of the pleader and adds no force to the description of a crime, and the word “unlawfully” before the word “possess” likewise has no legal significance. These two counts of the information simply charge, in effect, that the defendant did possess intoxicating liquor for beverage purposes without a permit therefor.

The People asked and the court gave but three instructions. These instructions are as follows:

“1. The Court instructs the jury that although a defendant has a right to be sworn and give testimony in his own behalf, the jury should give it such weight as they believe it fairly entitled to, and his credibility, and the weight to be given to his testimony, are matters exclusively for the jury; and the defendant’s interest in the result of the trial is a matter proper to be taken into consideration by the jury in determining what weight ought to be given to his testimony.
“2. The Court further instructs the jury that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be reasonable doubt. A doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible state of fact different from that established by the evidence,
“3. The Court instructs the jury, in the language of Section 28 of the Illinois Prohibition Act, that it shall be unlawful to have or possess any liquor intended for use in violation of this act, or property designed for the illegal manufacture of liquor, and no property rights shall exist in any such liquor or property.”

It has been repeatedly held that the term “reasonable doubt” is one of common meaning and understanding and no instruction should be given in a criminal case which attempts to define it. The second and fourth counts of the information based upon the possession of intoxicating liquor being bad the third instruction should not have been given. As to the first instruction under the circumstances in this case we think it fairly comes within the rule laid down in the case of People v. Harvey, 286 Ill. 593. The, only wit-' ness for the People who testified in regard to the sale of the liquor by the defendant under the first and third counts of the information, was an investigator employed by the State’s Attorney .and the only witness for the defense on this question was the defendant herself. Under similar circumstances in the case of People v. Harvey, supra, two instructions of like import were given. The court held in that case that the giving of such an instruction, under such circumstances, tends to discredit the testimony of the defendant and puts him in an inferior class from other witnesses. In our opinion all three of these instructions under the circumstances in this case were erroneous.

The judgments of the county court under the second and fourth counts of the information are reversed and the judgments under the first and third counts are reversed and the cause remanded as to said first and third counts.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Gid Housh, Appellee, v. Richard Tolson, Appellant.
    Gen. No. 8,302.
    Opinion filed April 17, 1929.
    S. S. Clapper and Redmon & Redmon, for appellant; Russell R. Reno, of counsel.
    Steidley & Steidley and George B. Rhoads, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

A judgment by confession was entered in the circuit court of Shelby county upon three promissory' notes for the sum of $1897.50 in favor of plaintiff (appellee) and against defendant (appellant). On motion of defendant in the court below the judgment was opened up and he was given leave to plead. The cause was submitted to the court for trial who entered a judgment to the effect that the original judgment stand in full force and effect as of the date of its relidition.

It is averred in the first plea, in substance, that before the execution of the promissory notes it was verbally agreed between the defendant and the Standard Manufacturing Company, the payee in the notes, that defendant should assist the said Company in making sales of certain light plants and that at the time of the execution of said notes there was, as a part of the same transaction, also executed a certain instrument, in writing, by said Company and delivered to defendant as follows, to wit:

“Date, October 11, 1922.
“Name, Mr. Richard Tolson,
R. R. No. 3,
Moweaqua, Illinois.
“Pursuant to our conversation, our complete agreement is hereby reduced to writing for the use of both parties.
“We are reserving for you the following territory: In the vicinity of your home, to be extended as may be agreed on and permitted through Mr. Livingston with this company.
“This territory is specifically reserved for you in consideration of the fact that you have contracted with the Standard Manufacturing Company to take twelve generators on the following terms and conditions:
“You are to give three notes in the total sum of fifteen hundred dollars ($1500.00); each note in the sum of five hundred dollars, due and payable one year from date; said notes bearing 5 per cent interest.
“These notes are to be construed as a deposit applying as payment on each of twelve generators. The wholesale price of these generators to cost you $125.00 each, f. o. b. Decatur.
“It is also fully understood and agreed that you do not contract with the Standard Manufacturing Company any further financial obligation beyond the payment of $125.00 down on each of twelve generators, or beyond the sum of fifteen hundred dollars, except such generators and fixtures as you may order in writing and cause to be shipped to you.
“In consideration of this contract whereby you are to give your time and best endeavor to this work, the Standard Manufacturing Company agrees, at reasonable stated times, on your request, to furnish you an experienced and capable closing salesman who will close any good prospects that you have worked on and brought to a point where they are ready to close, needing only the services of a capable, energetic and experienced man.
“It is also understood and agreed that, on all sales that you make yourself, you are to have the full amount of the profit and credits, and on all sales that you make in company with the experienced closing salesman, you are to receive one-half the credits an each sale, and one-half the profits to an amount not to exceed seventy-five dollars.
“The Standard Manufacturing Company agrees to furnish you with fixtures, pipe and fittings, shades, inverters, friction lighters, burner tips, domes, hot plates and irons, subject always to strikes and difficult market conditions; these always to be furnished you at the prevailing wholesale prices.
‘ ‘ The Standard Manufacturing Company also agrees to furnish an installer at the rate of five dollars a day and his traveling expenses between Decatur and the territory.
“On all generators, fixtures, pipes and fittings, and installations furnished, at completion of installation, this company will undertake to make collection or settlement, and, failing to do so, you will give the same your best and prompt attention to the end that the amount due the Standard Manufacturing Company shall be paid them in note or cash by light plant purchaser, within thirty days from date of shipment.
“These generators and fixtures to be delivered to you as you make bona fide sales of light plants in the territory assigned to you. It being understood and agreed that you are to purchase all fixtures and accessories from the Standard Manufacturing Company, and that the Standard Manufacturing Company will have charge of all installations in order that proper supplies and proper installation may at all times be furnished.
“This .company will undertake to complete the sale of these machines for you, and will guarantee to close enough sales to make up the amount of these notes, provided you fully co-operate in securing enough good prospects ready to close, and either sell them yourself, or drive with our experienced closing salesmen as they may be assigned to you from time to time.
“When these twelve generators are sold as above specified, this entire arrangement may be renewed with the mutual consent of both parties, it being the intention to try to sell as many as from twenty-five to fifty generators a year in this territory.
“It is further understood that the Standard Manufacturing Company furnishes the money which must be advanced for all generators, supplies, accessories and labor pending such time as the light plants are installed, and the cash or notes secured from the purchaser of the light plant. It is also understood and agreed that the Standard Manufacturing Company will undertake to extend time and credit to all purchasers worthy of time and credit, and will furnish all accessories and supplies as above indicated, and will also pay in cash, on completion and installation and settlement, all profits and commissions due you or the closing salesman, or both, and will wait for from six months to one year, in some instances longer, for the money to be received from the purchasers of light plants.
“The Standard Manufacturing Company will not hold you liable for any payments on any light plants that are sold. They will look solely to the purchasers of the light plants, and in case any notes or accounts are not paid, the Standard Manufacturing Company will suffer said loss, if any.
Tours very truly,
The Standard Manufacturing Company, By P. B. Sullivan.
“Accepted:
“The Standard Manufacturing Company guarantees to carry out the provisions of the above contract or to hold you harmless and return the notes and contract if they do not make the sales of twelve generators in accordance with the above contract.
The Standard Manufacturing Company, By P. B. Sullivan.”

That, upon the receipt of said instrument in writing from the said Company, defendant executed said notes and delivered the same to said Company on the condition set forth in said written instrument; that defendant fully co-operated with said Company in securing prospective customers for said light plants and gave his time and best endeavors thereto, and that he was unable to make sales thereof himself and that said Company did not make the sales of said twelve generators mentioned in said contract; that there never was any consideration for the making of said notes and that said Company failed to comply with the said agreement and make the sales of said generators and that defendant never did, at any time, ever receive any consideration for the making of said notes and that said Company in fraud of the rights of this defendant and in breach of faith negotiated said notes to one Adams and the said Adams endorsed said notes, in blank, and delivered the same to the plaintiff,

In the second plea it is averred that said notes were executed and delivered to said Company upon the con-' dition set forth in said written instrument, to wit: that said-Company would return the said notes to this de-' fendant if it did not make the sales of twelve generators in accordance with said contract; that defendant never received any consideration for said notes and said Company failed to comply with its agreement in making the sales of said twelve generators and has not held this defendant harmless but did unlawfully, wilfully, corruptly and fraudulently and in fraud of the rights of this' defendant, and in breach of good faith, negotiate said notes to one Adams and said Adams endorsed said notes in blank and delivered them to the plaintiff. In other respects this plea is substantially the same as the first. Several replications were filed to these pleas to which the defendant demurred and upon the overruling of the demurrer filed rejoinders thereto and similiters were filed to the rejoinders. No errors are assigned on the pleadings.

Upon the trial the plaintiff introduced the notes and rested. The defendant then testified that he was a farmer and lived on a farm near- Moweaqua and had lived there all his life; that he had bought and paid for one of the generating plants for his home about a year before he signed the notes; that he drove day after day trying to sell similar light plants and that twice the Company sent him an agent to assist in selling them; that once or twice when he requested the Company to send a man to help him it did not do so; that he tried to sell the plants himself and after the Company had refused to send a man to help him he quit trying to sell any more. The plaintiff offered no evidence in rebuttal.

Section 59 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 79, provides: “Every holder is deemed prima facie to be a holder in due course; but when it [is] shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.” Section 55, Cahill’s St. ch. 98, ¶ 75, provides: “The title of a person who negotiates an instrument is defective within the meaning of this Act when he obtained the instrument,'or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or "for an illegal consideration or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

The act further provides by section 16, in substance, that every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or tinder the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him, is conclusively presumed. ■ And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. -

The fifth clause of the written agreement set out in the pleas provides that these notes are to be construed as a deposit applying as payment on each of twelve generators. The thirteenth clause provides that the Company will undertake to complete the sale of these machines and will guarantee to close enough sales to make up the amount of these notes, provided defendant fully co-operates in securing enough good prospects ready to close and either sell them himself or drive with its experienced closing salesman as'they may be assigned to him from time to time. The seventeenth or last clause of the agreement provides that the Company guarantees to carry out the provisions of the above contract and to hold defendant harmless and return the notes and contract if they do not make the sales of twelve generators in accordance with the "above contract.

Defendant testified that he was only able to sell two of the machines and never received any credit from the Company for these sales. It is apparent that the defendant has never received any consideration for these notes and that the negotiation of them by the Company, under the circumstances shown by the pleas and the proofs was in direct violation of the last or seventeenth paragraph of the written agreement, wherein the Company guaranteed to hold him harmless and return the notes and contract if they did not make the sales of the twelve generators in accordance with the contract. The negotiation of these notes was a breach of faith and a fraud upon the rights of the defendant and cannot be supported by any sense of honesty in business dealings in so far as the Company was concerned, and after the evidence had developed these facts, the burden of proof was upon the plaintiff to show that he was a holder of the notes in due course.

In the case of Bell v. McDonald, 308 Ill. 329, the proof showed that a Stock Powder Company, by its agent, succeeded in pursuading the defendant to order 40,000 pounds of stock powder at a selling price of $2800 and to execute two notes of $1400 each, payable to the order of said Company, upon a parol agreement that the Company would hold said notes as collateral for whatever powder should be sold. The court said:.. “Under these circumstances to sell the instruments and put them in circulation as valid promissory-notes of the appellee was manifestly to negotiate them in breach of faith and under such circumstances as amount to a fraud and is within section 55, which declares that the title of one who so negotiates an instrument is defective.” The court further held: “The court was therefore right in instructing the jury that the burden was on the appellant to show that his purchase of the notes was in good faith for value and without notice of any defense to the notes and in refusing to give the appellant’s instructions toi the contrary.” This court, in the case of Beard v. Baxter, 242 Ill. App. 480, where the facts showed that the note in question was given to the payee named therein for the special purpose of showing it to others in order to build up his credit, held that the negotiation of the same was a breach of such agreement and that the payee had at all times a defective title. In the case of McNight v. Parsons, 136 Ia. 390, where a note was given for the payment of a cow upon condition that it was not to be negotiated nor be of effect if the payee failed to deliver the cow in calf as agreed, which the plaintiff failed to do, it was held that the act of the payee ill negotiating and putting the note in circulation was such a fraud upon defendant as to east the burden upon the plaintiff to show he received the instrument for value in good faith and without notice. In the case of Pierson v. Huntington, 82 Vt. 482, the evidence showed that the note was given for the purchase of certificates for certain liquors in bond and at the time of the execution thereof a separate agreement in writing was executed between the maker and the payee to the effect that if the goods did not give satisfaction, they might be held subject to the payee’s order and the note should be returned upon the return of the certificates. The goods were not found to be'satisfactory and the maker returned the certificates but the payee refused to return the note and sold it to the plaintiff. It was held that the title to the note in the payee was defective and the burden of proof was upon the plaintiff, to establish the fact that he obtained it for value in good faith and without notice. In the case of Beach v. Nevins, 162 Fed. Rep. 129, the note was executed under an agreement that certain stock of a corporation should be procured and delivered by the payee to the maker within a specified time which was not done and it was held that a negotiation of the note, under these circumstances, was a breach of faith and the title thereto was defective. This case is also reported in 18 L. R. A. (N. S.) 288, and in a note thereto many cases from different jurisdictions are cited upon this question. In the case of Glendo State Bank v. Abbott, 30 Wyo. 98, 216 Pac. 700; 34 A. L. R. 294; the Supreme Court of Wyoming in an exhaustive opinion held the same principles of law as announced in the case of Bell v. McDonald, supra, and as hereinabove expressed.

Under the facts in this case the negotiation of the notes in question by the payee was a breach of faith and fraudulent and the burden of proof shifted to the plaintiff to show that he was a holder of the notes without notice of the defective title of the payee and for a valuable consideration.

The first endorsement on each note is as follows: “For value received we hereby transfer and assign all our right, title and interest in this note to A. L. Adams. The Standard Mfg. Comp’y. By: R. Carter, Sec. & Treas.” No question has been raised as to what title the endorsee, Adams, obtained by this endorsement and it is unnecessary for us to pass upon it.

The judgment of the circuit court is reversed' and the cause remanded.

Reversed a%$ remanded,


text:
    Farmers State Bank of Stonington, Appellee, v. R. Rasmussen and Eaton State Bank, Appellants.
    Gen. No. 8,305.
    Opinion filed April 17, 1929.
    Leslie J. Taylor and C. E. Fleisher, for appellants.
    Provine & Williams, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The' Farmers State Bank of Stonington brought its action of replevin against R. Rasmussen and the Eaton State Bank of Owaneco, Illinois. The case was originally instituted in the circuit court of Macon county by filing an affidavit therein January 13,1927, executed by Mike M. Hines, cashier of the said Farmers State Bank, in which he deposes that said bank is the owner of and lawfully entitled to the possession of the following goods and chattels:

‘ ‘ One-half interest in about ninety-five (95) acres of corn in field and crib; one (1) Ford touring car, license number 783591, motor number 6527581; one (1) Chauncelor gasoline engine; one (1) Deering binder; one (1) Mower; three (3) discs; one (1) gang plow; one (1) garden plow; two (2) single row cultivators; one (1) two-row cultivator; one (1) clod crusher; one (l) Ford-son tractor; one (1) walking plow; one (1) hand corn sheller; five (5) cows; one (1) bull; seven (7) yearling calves; one (1) corn dump; one (1) hoisting machine; one (1) young calf; one (1) brown mare; one (1) brown horse; one (1) gray mare; one (1) brown mare; two (2) farm wagons; two (2) sets double work harness; all located on the southwest quarter (SW%) of Section sixteen (16), Township fourteen (14) north, range one (1), east of the Third Principal Meridian, in Macon county, Illinois.”

It is further averred that R. Rasmussen and the Eaton State Bank wrongfully took and now detain said goods and chattels. On the same day a writ of replevin was issued by the circuit clerk of Macon county and delivered to the sheriff of that county to serve. The sheriff of Macon county served the writ by taking possession of the chattel property mentioned on January 14, 1927, as shown by his return thereon. No further steps were taken thereafter in the case in the circuit court of Macon county. On January 18, 1927, the Farmers State Bank, the Eaton State Bank and R. Rasmussen entered into the following stipulation:

“Whereas, the Plaintiff in the above entitled cause, has caused a writ of replevin to issue out of the Circuit Court of Macon County, Illinois, directed to the sheriff of that county, to replevin certain articles of personal property, as set forth in the return of the sheriff upon said writ of Replevin: and
“Whereas, the Eaton State Bank, a corporation, claims to be the owner of all of said property, the said defendant B. Rasmussen, having only an equitable interest in said personal property: and
“Whereas, the said Eaton State Bank had advertised a sale of all of said property, together with other property located' on the Eaton Farm in Macon County, Illinois, described as ,‘The Southwest Quarter (%) of Section Sixteen (16), Township Fourteen (14) North, Range One (1) East of the Third Principal Meridian,’ to be held on Wednesday, January 19th, 1927, and the parties in interest are desirous of saving all costs and expenses possible without waiving any of the rights of the parties thereto; and
“Whereas, it is deemed for the best interest of all concerned that said sale proceed as advertised, and that all parties purchasing at said sale receive unquestioned title to said articles of personal property.
“Wherefore, In consideration of the mutual benefits to accrue to the parties, it is stipulated and agreed that the above entitled cause be transferred to the Circuit Court of Christian County, Illinois, at the March Term thereof, the parties defendant waiving service of process, and entering their appearance; and that the party plaintiff, by reason of this stipulation, shall not' be deemed to have waived any rights which it has, or claims to have, by reason of the release of said property, for said sale, and may set up such facts in its Declaration, Replication, or subsequent pleading as it could or might, if said cause of action should have proceeded without any sale having been had pursuant to this Agreement.

The parties defendant shall not be taken to have waived any rights, which they, or either of them, jointly or severally, may have had, or claimed to have had, to said property, but may set up in pleas and rejoinders or other pleadings, any defense which they might offer to said cause, as fully, and with like effect as though said cause had proceeded without a sale of the personal' property.

“IT IS FURTHER STIPULATED AND AGREED, that Said Sale shall proceed without interference, and with an assurance that the purchaser shall receive good title to said personal property; that the clerk of said sale shall keep in duplicate, a correct and true account of all the articles of merchandise sold at said sale, including all the personal property described in the return of the sheriff of Macon County, Illinois, to the Writ of Replevin. &nd the proceeds arising from such sale of said personal property described in said return shall be held by Charles Law, as custodian, until the final determination of said'case, and paid over pursuant to the final judgment in said cause, to the parties entitled thereto by the final judgment in the case.
“It is further stipulated and agreed that the parties defendant shall have the remaining approximately fifteen acres of corn in the field shucked, and the bnehalf part thereof shelled, delivered and sold by the said Charles Law; and, after deducting the expense of shucking, selling and delivering, place the net proceeds from the sale of said corn with the funds arising from the sale of the chattel property at said sale, on the 19th day of January, 1927.
“It is further stipulated and agreed that the sale has been advertised by the Baton State Bank, and that said sale is to be held under the name of the said Baton State Bank, as owner. But, such sale, under the name of such owner, shall be without prejudice to any of the rights of either of the parties to said cause, and the proceeds from said sale and from said corn are subject to the rights of all the parties hereto, as finally determined by the court.
“It IS FURTHER STIPULATED AND AGREED that either of the parties hereto shall have the right to appeal from the judgment of the Circuit Court, and that the words “Final Judgment,” as used herein, means the judgment which becomes final by reason of no further prosecution of appeal, or by Certiorari, to the Supreme Court, and that neither party to this cause waives any rights by reason of entering into this stipulation. The purpose of the stipulation being to save and protect the rights of 'all parties, pending a final adjudication of the matters in controversy, and to save costs and expenses which would follow an interference or stoppage of the sale, as advertised.
“It is further stipulated and agreed, that if notes are taken at said sale, the said notes, and the proceeds arising therefrom, shall be held by the said Charles Law, the same as cash proceeds. The said Charles Law being authorized to enforce the collection of any notes taken in lieu of cash.
“In witness whereof, this stipulation has been executed in triplicate by the parties hereto, by their respective attorneys, this 18th day of January, 1927.”

It appears that pursuant to this stipulation that the original affidavit filed in the circuit court of Macon county, together with the writ of replevin issued by virtue thereof to the sheriff of that county, with his return thereon, were taken from the files in the case in Macon county and refiled with the clerk of the circuit court of Christian county on February 7, 1927. The record does not show that the case was dismissed in Macon county nor that any leave was granted by that court to take the original files in that case and refile them in the circuit court of Christian county. The stipulation itself was never filed in Christian county, although it was introduced in evidence as an exhibit. The record does not show that there was any order entered either in the circuit court of Macon comity or in the circuit court of Christian connty divesting the sheriff of Macon county of his possession of the chattels mentioned which he obtained by virtue of the said writ of replevin.

On March 21, 1927, the Farmers State Bank filed its declaration in the circuit court of Christian county. On September 14, 1927, the defendants Baton State Bank and R. Rasmussen, filed numerous pleas thereto and on September 28, 1927, an additional plea. By-agreement of the parties the jury was waived and the cause submitted to the court for trial, who, after hearing the evidence, entered the following judgment or decree:

“The Court finds that the plaintiff was the owner of, and entitled to the possession of the property- mentioned and described in the replevin writ herein, at the time of the institution of this suit. The Court further finds that since the bringing of this proceeding, the parties to the suit entered into a stipulation by which it was agreed that the property should be sold, and the fund brought into Court, which was done, and is now being held by Chas. Law. In view of the stipulation and the facts as disclosed in this case, the plaintiff, Farmers State Bank of Stonington, is entitled to have and recover out of said funds, the sum due on its note offered in evidence, of $625.00, together with costs; and the balance and residue of said fund, so received from the sale of said property, is directed to be paid by the Trustee Law, to the Eaton State Bank, with its costs, and judgment is entered accordingly, and as above described.

“Therefore, it is considered by the Court, that the plaintiff do have and recover out of said funds so received from sale of said property, and held by trustee, Charles Law, its said damages of $625.00, together with its costs, and that the Baton State Bank of Owaneco, Illinois, have and recover of and from said trustee, Charles Law, the balance and residue of said fund, to all of which the defendants and each of them except.”

It appears from the evidence that R. Rasmussen, appellant, was a brother of one Chris Rasmussen, who was a tenant farmer living in Macon county and who originally owned most of the chattel property involved in this case. B. Basmussen lived in Christian county and was also a tenant farmer. On November 30, 1925, Chris Basmussen, as principal, and Lelah Basmussen and B. Basmussen as sureties, executed a note payable to the order of the Farmers State Bank of Stonington for the principal sum of $1,300. On May 2,1926, Chris Basmussen executed another note without any sureties thereon payable to the order of the same bank for the piincipal sum of $652 and to secure .this latter note executed a chattel mortgage conveying the property in question, which was then located upon his farm in Macon county. The mortgage, however, was acknowledged before a justice of the peace of Christian county and afforded no protection as against other creditors of Chris Basmussen, who might obtain judgment liens. On July 29,1926, the firm of Bradley & Bauer recovered a judgment against Chris Basmussen and his wife in the sum of $764.33, and on August 10, 1926, the same firm recovered another judgment against Chris Basmussen only for $299.05; both of these judgments were rendered in Macon county.

In the fall of 1926 Chris Basmussen left his farm and family and departed from the State. In November, 1926, after B. Basmussen had learned that his brother Chris had gone away he went to the Farmers State Bank to make arrangements to pay the $1,300 note on which he was surety. He made several of these trips and had several interviews with Mike Hines, the cashier of the bank, in regard to paying this note. Some time during these interviews with Mike Hines he was told by the latter that Bradley & Bauer had recovered a judgment against his brother Chris. The substance of these conversations we will comment on later, but as a result thereof B. Basmussen proceeded to purchase the Bradley & Bauer .judgment, which, by reason of costs and interest, seems to have grown to the sum of $906.70. Bradley & Bauer refused to assign this judgment unless he paid the other judgment. This was the first time that B. Basmussen had any knowledge that there were two judgments. He did not have quite enough money to pay both judgments and telephoned to Mike Hines, requesting his advice in regard to the matter. Hines told him to draw his check on the Farmers State Bank for the amount necessary to pay the second judgment and the bank would honor it and take his note for the amount when he returned. The accrued interest on the second judgment made the amount due thereon $322.87. Thus B. Basmussen paid out of his own money $1,229.57 for the purchase of these judgments against his brother and which were prior liens to the chattel mortgage held by the Farmers State Bank as above noted. At the request and advice of said Hines the assignments of these judgments were made to the Farmers State Bank. Prior to the purchase of these judgments it had been agreed by both Hines and B. Basmussen that the chattel property enumerated in the chattel mortgage was of a fair valuation of $2,400, and it is conceded by the parties to this suit that such was its fair valuation. Hines had an execution issued on one of these judg ■ ments and levied upon the property mentioned. I'-, was sold by the sheriff and bid in at the direction oi Hines by the attorney for the Farmers State Bank foi the sum of $1,227. There does not appear to have been any other bidders at the sale. When the levy was made by the sheriff by virtue of the Bradley & Bauer judgment, property to the value of $400 was set off as exempt. The evidence does not show clearly whether any property other than that included in the chattel mortgage was levied upon and sold by the sheriff.

B. Basmussen purchased from the wife of Chris Basmussen part of the exempt property to the value of $200 and paid her for it. Immediately after the sale E. Easmussen took possession of the chattel property in question, went to the Baton State Bank and borrowed therefrom $3,121, to secure which he executed a chattel mortgage on all this property and some other property which was located on his own farm. Out of this money he started to pay the $1,300 note and found that on November 12, 1926, Hines had caused judgment to be entered upon that note which, including attorney’s fees, amounted to the sum of $1,528.67. He also found that an execution" had been issued upon the judgment and placed in the hands of the sheriff. This made further costs and he was compelled to pay the sheriff in satisfaction of the judgment $1,551.36. He also paid the amount of money he had borrowed from the Farmers State Bank to purchase the second Bradley & Bauer judgment. On November 12, 1926, the Farmers State Bank caused a notice to be served upon the sheriff of Macon county notifying him that by virtue of a chattel mortgage it had levied on and taken possession of- all the property included therein now held by him under the execution .against Chris Easmussen in favor of Bradley & Bauer, said possession being subject to the execution, and property unnecessary to sell in order to meet the execution properly claimed as exemption, all funds arising from the sale of the same over the amount of the debt, interest and costs represented by said execution, etc. The Baton State Bank foreclosed the chattel mortgage by taking possession of the property mentioned therein and advertised the same for sale. Thereupon the Farmers State Bank brought its action of replevin in the circuit court of Macon county, which was transferred to the circuit court of Christian county pursuant to the stipulation heretofore mentioned. The sale under the Eaton State Bank chattel mortgage was held in accordance with the stipulation and the money realized therefrom is held by Charles Law, as custodian or trustee, who now has in his hands the sum of $1,299.03.

As a result of all these transactions it is apparent that if the judgment of the trial court is allowed to stand, R. Rasmussen has been mulcted to the amount of $1,229.57, for which the Farmers State Bank has received the benefit. The contention of the latter is that it has the legal title to all the chattel property by virtue of bidding it in at the sheriff’s sale under the execution for the Bradley & Bauer judgment; that it is also entitled to the amount of the note for $652 secured by its chattel mortgage and is also entitled to the amount of the second Bradley & Bauer judgment; to the property or the value thereof which was set aside as exempt and purchased by R. Rasmussen and that the latter is entitled to no credit whatever for the amount he paid to procure the assignment of the Bradley & Bauer judgment. This claim is made upon the basis that R. Rasmussen agreed to purchase these judgments and assign them to the bank and if the property sold for more than sufficient to pay all the debts of Chris Rasmussen to the bank, the bank would allow him the surplus or excess to apply upon the $1,300 note. During all these transactions prior to the institution of the replevin suit R. Rasmussen had no attorney to advise him as to his legal rights or the effect of any agreement he might make and it is apparent that he depended solely upon Mike Hines as cashier of the Farmers Bank. There could be no possible reason for his voluntarily paying $1,229.57 for the benefit of the bank when he only owed the bank in the first instance $1,300, vand a small sum of accrued interest thereon. Rasmussen testified in substance, as follows: “After my brother went west, .1 learned of his financial matters that affected the property. I learned that he had a mortgage on all his implements, his stock and things. I then went to the Farmers State Bank at Stonington to see about that note that I was surety for. Saw Mr. Hines about the $1300.00 note. I asked him, I suppose I would have to pay the note, they had levied on his goods at home, and he says, ‘No, don’t worry, I have got a mortgage that will protect you and myself, that is the reason I took the mortgage, you go on home and needn’t be uneasy.’ I then went home and came over to Taylorville the next day and found he had brought judgment against me on that note. The next trip to the bank I talked to Mr. Hooper. Mr. Hines was not in. I went back again and talked to Mr. Hines, he said the only thing I could do now was to buy the assignment there in Decatur, and he advised me to go up there and take that over. I went up to Decatur and took over those two judgments against Chris Rasmussen. While I was in Decatur, I had a conversation with Mr. Hines because I didn’t have enough money to take over the judgment, and Mr. Hines told the Attorney for me to take it over and write the balance bn the bill, the amount was $322.00, the attorney turned the phone to me and Mr. Hines told me the same thing. I took over the judgments and brought them to sign over to the State Bank at Stonington. Mr. Hines told me, ‘you have that signed over to us. ’ He says that the bank will protect you from the other creditors coming in and coming on to you. I didn’t learn that a judgment had been taken against me, together with my brother, not until later at Colegrove’s Bank. I didn’t know there was a large number of creditors at that time. I made three or four trips to Stonington. I think I had three different conversations with Hines about this matter. I went to Decatur for the purpose of buying one judgment, and found after I got there, there was another. I knew that these judgments and executions issued on them were ahead of the mortgage. I attended the sheriff’s sale at the Baton farm. My two sons were there also. I saw Reesé at the sale. Reese asked how much I paid for those judgments I took over at Decatur, I told him something over $1200.00, but didn’t remember exactly the full amount. He said, well when they go to sell this as a whole, I will bid it in and the stock is yours. He bid it in at that price that I had given him. After the sale, I saw Mr. Beese and Mr. Hines, my two sons were with me. Beese was out at his car and Mr. Hines and the rest of us were up on the porch. When we were on the porch together with Mr. Hines, he looked at me and said, ‘Mr. Basmussen, the stock is yours, and your boys are here and you can do as you please with it,’ and he turned around and said, ‘Mr. Beese, is that so,’ and Mr. Beese says, ‘I didn’t get that, how was it.’ so he repeated the same question and he said ‘Yes.’ Joe was standing by my side at that time. Mr. Hines said nothing about acting as Custodian. Mr. Hines told me to go back home and come to the bank and I will give you an agreement that the stock is yours. I told him we would. Mr. Beese went right on and Mr. Hines did the same thing shortly after. After the Sheriff’s sale, my two sons went to the Eaton State Bank, and I first learned of the $625.00 note owed by Chris Basmussen to the Farmers State Bank. My agreement was that there would be a sale of the goods under the execution that was already issued and he (Hines) was going to take title through the Sheriff’s sale. I stopped at the Stonington Bank ón the way home from the sale, talked with Hines on this occasion. We come in there and he says to me, he was going to give me a written agreement that the stock was mine, said I will have Mr. Hogan make it out so there will be no mistake, and I will either send them to you or give them to you. He had already given me possession of the stuff. Mr. Hines was going to voluntarily give me a paper that the stuff belonged to me.”

Mike Hines testified, in substance: “I bought the property at the sheriff’s sale. Paid $1229.00. I did not pay it with anything at the sale, not in cash. Bought it in as the assignee of two judgment creditors. In the sense of the word it was all Mr. Rasmussen’s money and he paid interest on it. The amount of the debt, interest and costs of the two judgments which R. Rasmussen bought with his money was bid there at that sale. I had a talk with R. Rasmussen about buying in the property at the sale. I told him I would buy it in, in the name of the bank. I don’t recall that I told him that it would protect him, I had a conversation with Mr. Rasmussen a week, possibly two -yeeks before this judgment was assigned to us. I think on three or four different occasions he was in the bank and we talked about this matter each time I was in there. I said I would take over this judgment, all that was left after paying our indebtedness, the indebtedness to the bank would be turned over to him to apply upon his claim. Rasmussen said he would do that. I told Mr. Rasmussén to go to Decatur and pay this judgment off. We only had knowledge of one judgment at the time. After “he arrived at Decatur, he found there was another judgment, and he had the attorney call me and explain about this other judgment. I told Mr. Rasmussen to stop at the bank on his way home. He stopped in and I told him I didn’t have the figures of all the costs included in this, and that just as soon as I got the amount from my attorney of the complete costs in the case, I would let him know, if they would come in and get it or I would mail it to them. ’ ’ Whatever the conversations were between Rasmussen and Mike Hines in regard to just' what should be done, it is unquestionably true that R. Rasmussen believed from those conversations that although the property sold at the sale would be bid in by the bank yet this was for his benefit and that he, after the sale, would have title to the property and all his actions thereafter were in accordance with this understanding. He went to the Baton State Bank, borrowed a large sum of money on the strength that he had title to the property and gave the chattel mortgage thereon to secure it. But whatever the real understanding might have been the judgment in this case cannot be sustained. If the stipulation conferred any jurisdiction upon the circuit court of Christian county (which question has not been raised and which is unnecessary to be determined at this time), it could only confer jurisdiction upon the parties to the stipulation. The custodian of the funds was not a party to the stipulation nor is he an officer of the court nor one over whom the court has any jurisdiction whatever. The court has no authority to enter any judgment requiring him to pay these moneys over to either party for the reason it has no power to enforce such judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Shurtleff

text:
    John E. House, Appellee, v. William W. Wheelock and William G. Bierd, Appellants.
    Gen. No. 8,266.

      Opinion filed April 17, 1929.
    W. K. Bracken, for appellants; Silas H. Strawn, of counsel.

      Chas. M. Peirce and Hubert J. Thompson, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This case was before this court at a former term, and for a statement of the facts reference is made to House v. Wheelock, 244 Ill. App. 270.

On the second trial of the cause the proofs on the issues were somewhat changed and the record before us presents the issue whether appellants received in good order the 520 baskets of peaches at Jerseyville, on Sunday and Monday, August 5 and 6, 1923, for shipment to Bloomington, and whether appellants were guilty of any negligence in the transportation of said car of freight which left Jerseyville at 12:08 a. m. Tuesday, August 7, by fast freight and arrived at Bloomington at 10 o’clock in the forenoon of the same day, a distance of 136 miles, passing through Rood-house and Mason City, where appellants had re-icing facilities.

The car for the shipment was ordered by the shipper on Friday evening, August 3, to be placed on the tracks of Jerseyville fully iced for loading peaches Sunday, August 5, and appellants placed the car on said tracks late Saturday evening. Although the car arrived at the place of destination on Tuesday, August 7, in the forenoon, appellee did not call for or claim the shipment until some time on the 9th, and upon the 8th appellants, of their own motion, without any order, re-iced.the car, the shipper having given no orders or directions as to re-icing in any manner. The peaches were packed in baskets which were made of thin strips of wood, with little cracks or openings between the strips hardly one-fourth of an inch in width, and these strips were held by joints. There was a wooden lid fastened on top of the baskets and right under this a pasteboard carton on top of the peaches. The top is a solid wooden top and fits tight over the top of the basket. One cannot view the peaches or examine the fruit without removing the cover and lid of each basket.

Appellants offered in proof, over the objection of appellee, portions of the bill of lading, reciting: “Received, subject to classification and tariffs in effect on the date of the issue of this shipping order . . . the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below,” etc. Under the proofs it is not disputed that the contents of the baskets could not have been examined by appellants, or their agents, except by removing the covers and going through each basket, which was not done. When the car was opened at Bloomington it was found that many of the baskets of peaches which were on the top tiers in the car and loaded last, were spoiled and there was testimony produced tending to show that this condition could have resulted from appellant’s failure to re-ice the car at Roodhouse or Mason City on the morning of August 7. There is testimony in the record also, produced by appellants, tending to show that it rained hard at Jersey-ville on Sunday night, August 5, and Monday forenoon, and that the last part of peaches loaded were gathered and packed while damp and wet, which would result in their spoiling when placed in the car. The bill of lading contained the limitation that:

“No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage.”

There are two counts in the declaration, one alleging general negligence on the part of appellants, and the second count alleging specific negligence upon the failure of appellants to re-ice said car. Appellants filed the general issue. Special pleas were presented but were stricken on motion of appellee as constituting the general issue only. The declaration states nothing as to the condition of the fruit when loaded into the car and shipped. There was a trial by jury, a verdict in behalf of appellee in the sum of $635, motion for new trial overruled and a judgment against appellants, who have brought the record to this court for review.

The peaches were raised by and on the farm of Chris. Ringhausen at Jerseyville, who, with his boys, picked, packed and loaded the car of peaches. On Monday, while the car was being loaded, the peaches were sold to Charles Siebermann who consigned the car to appellee. Siebermann testified and stated that on Monday forenoon he went into the car and crawled on top of the tiers of baskets on the end of the car which was loaded, and opened the lid of a few baskets on top, removed the corrugated paper and examined the fruit in a few of the last-loaded baskets. The car was loaded in tiers on the floor of the car first, then in order, and the top tier loaded last. This was necessary so that in loading joints could be broken and one basket above would be placed over part of two baskets below and not one basket directly above another. Siebermann examined not over ten boxes in all, and it is uncertain whether he examined boxes loaded on Sunday or Monday. He testified that the peaches he examined were sound and dry.

On the trial appellee assumed the burden of showing the nature of the peaches loaded into a car, as he was required to do. He produced E. L. Ringhausen, a son of Chris. Ringhausen, who testified that he did none of the picking, packing, sorting or boxing of the fruit, but merely drove the truck and loaded the baskets into,the car. He was permitted to testify, over the objection of appellants, that the peaches were all hand picked and hand sorted and that none but sound, dry and merchantable peaches were packed in the baskets, although the witness saw none of this work done and knew nothing about it. The peaches were all picked, sorted and packed by the father, Chris. Einghausen, and two sons other than the witness and with other help whom the witness did not know. A load was prepared while the witness would drive to Jerseyville with a truck load and load from the truck into the car. The witness did not testify that he saw a peach picked or sorted or that he looked into any basket or examined any of the fruit; but only drove the truck two miles to Jerseyville and loaded the baskets into the car. The Siebermann testimony on further examination shows that when this witness examined the car there were only two tiers of baskets on the floor and they were commencing the third tier. It is not shown that Siebermann saw any of the baskets packed in the car on Monday and there were no other proofs in the record as to the,condition of the peaches when loaded. No effort was made to produce Chris. Einghausen, who owned the peaches, or his sons Charles and Stephen, who assisted their father in picking and packing the fruit and knew about it. Both were at their father’s home near Jerseyville and neither they nor their father appea'red at either trial. " The son Charles sold the car, to Siebermann and did the billing. There was direct proof that it rained hard Sunday night and rained Monday afternoon, which the witness Einghausen partially admits. Appellee testified that when he opened the car at Bloomington he stated to appellant’s agent, Conley, that the baskets on the top row looked like.they had water in them; that water was found standing on the cardboard cover under the basket lids and in some of the baskets water had gone through the cardboard down into the peaches, especially in the baskets in the top tier of the car. Substantially all of the peaches in the two lower tiers of baskets in the car were found sound and merchantable and we must conclude that it was error to permit the witness Binghausen to testify to the condition of the peaches that he did not see picked, sorted or packed and about which he could have had no knowledge other than hearsay.

There was no competent testimony in the record showing the condition, when loaded, of the peaches found injured and damaged on the arrival of the car at Bloomington. But appellee contends that the rule is, the bill of lading being in evidence stating that the goods were received “in apparent good order” (with a limitation), that unless the shipper accepted the contract and understood and assented to the restrictive provisions thereof he will not be bound thereby, and that appellants are bound by the receipt that the goods were in good order, citing Plaff v. Pacific Exp. Co., 251 Ill. 243. The Plaff case arose upon a cause of action which accrued in 1906. In 1911 the Legislature passed the Uniform Bills of Lading Act, section 10 Cahill’s St. ch. 27, ¶ 11, of which provides:

“Except as otherwise provided in this Act, where a consignor receives a bill and makes no objection as hereinafter provided to its terms or conditions, neither the consignor or any person who accepts delivery of the goods, or any person who seeks to enforce any provision of the bill, shall be allowed to deny that he is bound by such terms and conditions, so far as they are not contrary to law or public policy: Provided, that any objection to the lawful terms and conditions of said bill shall be made in writing, which only need state the mere fact of such objection, by the consignor within three hours after receiving said bill, and all such bills shall have attached to the same a blank form for such objection. Thereupon it shall be the duty of the officer, agent or servant of the carrier to take up such bill of lading so objected to, and upon request of such officer, agent or servant, it shall be the duty of the consignor to surrender such bill of lading and thereupon such officer, agent or servant shall issue an unconditional bill under which the consignor shall pay the lawful freight rate.”

The uniform bill of lading upon which the shipment involved in the case at bar was made, and to which presumably no objection was offered by the consignor (there being no evidence to the contrary), contains the following provision:

“No carrier or party in possession of any of the property herein described shall be liable for any loss thereof, or damage thereto, or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner.”

This statute has been construed in Bean v. Jackson, by this court, 207 Ill. App. 577, 582, the court holding:

“The Uniform Bills of Lading Act has not changed the rule as to the effect of such limitation of liábility stipulations, but has changed the rule in regard to the proof of the making of the contract, or, in other words, of the assent of the shipper to the limitation stipulations. Formerly the carrier was bound to prove the shipper’s knowledge of such stipulations limiting liability, and his assent thereto. Wabash R. Co. v. Thomas, 122 Ill. App. 569; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9; Cleveland, C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376. Now under the act referred to, when it is established that the shipper has received a bill of lading containing such stipulations and makes no objections thereto and particularly when he has signed the same, he is conclusively presumed to have known and assented to the same and is not allowed to deny that- he is bound thereby. The judgment will therefore be reversed with a finding of fact to be incorporated in the record of this court.”

Section 23 of the Uniform Bills of Lading Act, Ca-hill’s St. ch. 27, ¶ 24, further provides:

“If, however, the goods are described in a bill merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind or quantity, or in a certain condition, or it is stated in the bill that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill, such statements, if true, shall not make liable the carrier issuing the bill, . . . the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill.”

This section has also been construed in Keystone Oil & Mfg. Co. v. Illinois Cent. R. Co., 207 Ill. App., 243; Fox v. Chicago & N. W. Ry. Co., 199 Ill. App. 453. Such limitations, where not restricting the carrier’s common-law liability, are not against public policy or unlawful. (Illinois Match Co. v. Chicago, R. I. & P. R. Co., 250 Ill. 396; Cleveland, C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376.) The contrary holding in Lino v. Northwestern Pac. R. Co., 246 Ill. App. 451, 454, involved an interstate shipment and was governed by the Carmack amendment to the Hepburn act and the court held:

“That part of the. Carmack amendment to the Hepburn act governing the shipment in question is contained in section 20 of the Interstate Commerce Act, and inter alia provides that the . carrier ‘ shall issue a receipt, a bill of lading therefor, (for the shipment), and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass . . . and no contract, receipt, rule, regulation or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier . . . shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage or injury to such property caused by it or by any such common carrier, ... to which such property may be delivered or over whose line or lines such property may pass, . . . notwithstanding any limitation of liability or limitation of the amount of recovery . . . .’

“The bill of lading being a through bill of lading, the attempt by defendant to limit its liability therein was impotent to effect such purpose. The shipment was in all respects governed by and subject to the Car-mack amendment quoted from supra, and there could be no deviation therefrom, so far as the act by its provisions imposed liability upon the carrier.

“The bill of lading will be construed against the carrier and in favor of the shipper as the carrier made the contract. The bill of lading recites that the grapes were received ‘in apparent good order,’ and the vague recitation of an absence of such knowledge will not be received to modify in any manner the express acknowledgment of defendant that, they were received ‘in apparent good order.’ To defeat the operation of such admission the burden was on defendant to show by pertinent evidence that the grapes were not in good order when they were received for shipment by the carrier defendant. Such exculpating proof we do not find in the record. The grapes being in good order, according to defendant’s bill of lading, at the time of shipment, proof of damage at point of destination, Chicago, made a prima facie case against defendant, entitling it, in the absence of contrary proof, to recover.” In the case at bar the shipment was intrastate and is governed by the Uniform Bills of Lading Act of Illinois and the cases cited, supra.

Under the proofs presented and the law, it must be held that there was not competent testimony in the record sufficient to fix and determine appellants’ liability or the amount of the damage, if any.

Both parties to this appeal have argued strenuously for and against the duty of the carrier to re-ice the car under all circumstances, and the possible negligence of the carrier in that behalf. The proof is undisputed that when the car was set on the tracks at Jerseyville on Saturday evening it was properly iced and equipped for carrying fruit. It so remained properly iced during Sunday and Monday while the car was being loaded. Appellants sought to establish a custom of their road not to re-ice cars or incur the expense unless so requested by the shipper. No such limitation was contained in the contract or shown to be within the knowledge of the shipper. No rule of statute or order of the Commerce Commission is shown. No particular light is thrown upon this question by any case decided in this State except Mutual Orange Distributors v. Atchison, T. & S. F. Ry. Co., 217 Ill. App. 23, and what is said in that case is not conclusive. Some light is thrown upon this question by the case of Mittenthal Bros. v. Michigan Cent. R. Co., 176 Ill. App. 77, where a car of apples was shipped from Battle Creek, Michigan, to Chicago, where the carrier expressly limited its liability from leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay. The property was shipped under a classification as fifth class. The court say:

“The contract of affreightment exempted the defendant from liability for loss or damage to freight by heat. Such exemption is reasonable and not against public policy where the heat was not caused by the negligence of the defendant. The question then is presented whether the defendant was guilty of negligence in failing to re-ice the car. If it be conceded that the defendant ordered a refrigerator car Monday, June 15, such a car with 4,000 pounds of ice in its bunkers was sent from Jackson to Battle Creek that day. The only testimony in the record as to the time which such a quantity of ice would last, was that it would last about thirty-five hours if the car was empty and the doors kept shut, and a less time if the car was filled. It was forty-eight hours from the time the ice was put in the car to the time the loading was completed, and the shipping order given.

“The official classification provided that the consignors should furnish at their own cost ice furnished for property classified less than third class. The apples were classified fifth class, and we think that if the plaintiffs wished to have the car re-iced before it left Battle Creek, or thought it necessary that it should be re-iced then, they should have notified the defendant and requested it to re-ice the car. Plaintiffs were at the place of shipment. They knew that the car was iced Monday and that if it was re-iced it would be at their cost. They had the right to order the car re-iced or let it go forward without re-icing, and they gave no order to have the car re-iced. We do not think that under the circumstances the defendant was bound to re-ice its car at Battle Creek or between Battle Creek and Chicago without a request to do so by the plaintiffs, and that its failure to so re-ice the car was not negligence.

“Neither can we say that the defendant was bound to know that apples in a car without ice would be damaged in shipment for the distance between Battle Creek and Chicago and taking the time required to carry the apples in question to Chicago. In Beard v. Illinois Cent. R. Co., 79 Iowa 518, relied on by the defendant in error, butter was carried by the defendant in hot weather from DuQuoin, Illinois, to New Orleans in a box car, and it was held that the employees of defendant must be presumed to know that butter carried in ordinary cars to New Orleans in summer would be greatly injured by the ordinary heat of the climate. Here the distance was not great and there was no difference in climate.

“Our conclusion from all the evidence is that it fails to show that the defendant was guilty of negligence in respect to the apples in question, and therefore, under its contract of affreightment, was not liable for damage to such apples by heat.”

This case differs from the case at bar. If appellants could have shown a well-followed custom on their part, known to the shipper, or which by the exercise of due care the shipper could have known, not to re-ice cars unless ordered so to do by the shipper, there being no rule of the Commerce Commission upon that subject, we are of the opinion, under all the facts in this case, that appellants should have been permitted to show the custom. The facts in the case of Beard v. Illinois Cent. B. Co., supra, present an entirely different case. Siebermann examined the car and the icing on Monday about noon. He found the bunkers about two-thirds full of ice and expressed the opinion that there was sufficient ice to carry the car to Bloomington. Siebermann was then the owner of the fruit and became the consignor of the car. The car stood on the tracks at Bloomington two full days before appellee claimed the shipment and opened the car. No sufficient excuse is shown for the delay and during this interval appellants re-iced the car. Appellee’s delay and possible negligence should have been fully presented to the jury.

Appellants complain of all the instructions given for appellee. The second instruction given for appellee is as follows:

“If the jury believe from the evidence that the defendants received the peaches in question for shipment and gave the bill of lading introduced in evidence acknowledging the receipt of such peaches, then the bill of lading is prima facie evidence that the peaches mentioned therein were, at the time they were received, in apparent good order and condition and is binding on the defendants unless you further believe from the evidence that the peaches were not in good order and condition at the time they were received for shipment.”

Under this instruction the language of the Uniform Bills of Lading Act is rendered meaningless and in every shipment made the carrier would be required, for its proper protection, to open boxes, examine goods and advise itself as to the real order and condition of the shipment made. In this case the consignor billed the goods and appellee accepted the same under a written contract that “the contents and condition of contents of the packages shipped was unknown to the carrier,” and if the Uniform Bills of Lading Act is to have any effect, there can be no presumption in this case that the packages and their contents were in apparent good order. This appellee was required to establish by the proofs and attempted to do so, but the proofs submitted were so defective that in the opinion of this court the verdict should be set aside and the cause submitted to another jury.

There were other errors in the rulings on the admission and rejection of testimony which will doubtless be corrected on another trial.

We make no comment upon the other instructions as we do not have before us the instructions given on the former review further than the instructions set out in the opinion in House v. Wheelock, supra.

Reversed and remanded.


text:
    State Bank of LaPrairie, Appellant, v. John J. Bakerbower, Appellee.
    Gen. No. 8,301.
    Opinion filed April 17, 1929.
    Wilson & Schmiedeskamp, for appellant.
    John E. Wall, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The appellant, State Bank of LaPrairie, brought suit in attachment against the appellee, John J. Baker-bower, in the circuit court of Adams county, upon an indebtedness of $4,000, as shown by the affidavit for attachment. Appellant gave bond which was duly approved and writ of attachment was issued and served upon appellee and James B. Moffett as executor of the last will and testament of John M. Bakerbower, deceased, and Arthur R. Roy, master in chancery of the circuit court of Adams county, Illinois. Appellant filed its declaration, consisting of the consolidated common counts, together with a copy of account sued on, and the appellee filed a plea in abatement to which appellant filed a general demurrer. The court entered an order and judgment overruling said demurrer and ordering and adjudging that the said writ be quashed and the said suit abated, and that the plaintiff pay the costs of said suit, to all of which orders and rulings of said court the appellant excepted and prayed' an appeal. The assignment of errors covers the overruling of said demurrer, the quashing of said writ, the abatement of said suit and the judgment against appellant for costs.

Appellee in his plea in abatement sets up that he was declared bankrupt by the United States District Court of the Southern District of Illinois, on December 29, 1924, and that the indebtedness sued on by appellant was scheduled in bankruptcy and that the same was provable and dischargeable in bankruptcy, “which discharge, if granted this defendant, will bar the plaintiff from having or maintaining his aforesaid action against this defendant.”

Appellee further alleged in his plea that appellant resisted his application for discharge in bankruptcy and filed objections to his discharge, “which application for discharge and said objections thereto are still pending and undetermined in said court.”

Appellee further alleged in his plea that his father, John M. Bakerbower, had died, testate, after appellee was adjudged a bankrupt, and that letters testamentary were issued to James R. Moffett as executor who had filed his final report in said estate which had been duly approved by the county court of said county, and that appellee’s distributive share was $1,546.76,

Appellee further in said plea alleged that since he was adjudicated a bankrupt he became seized of one-sixth interest in certain real estate in Clayton, Illinois, which had been sold in partition, and that his distributive share of the proceeds was approximately $400, which was held by Arthur B. Boy, master in chancery of the circuit court of Adams county, Illinois.

The question is, whether appellant, as a matter of law, is precluded from bringing suit against appellee prior to appellee’s final discharge in bankruptcy, and while' the proceedings are pending.

It is contended by appellee that a demurrer will not lie to a plea in abatement but there appears to be authority for such practice in the earlier cases. (Puterbaugh Com. Law Pleadings, 6th Ed. 149) and “if the judgment is for the plaintiff on demurrer to the plea, the judgment is only interlocutory, quod respondeat ouster. The judgment for the defendant on a plea in abatement, whether on an issue of fact or law, is that the writ be quashed; or if a temporary disability or privilege is pleaded that the plaint remain without day until,” etc. Prom the plea as filed, if it was proper to file such a plea, it. could not be construed as alleging more than a temporary disability, because if a final discharge was denied, appellant would be entitled to" proceed in any event. Appellant contends that as a rule pleas or answers in abatement can be used only to present matter which defeats or suspends the present suit and must be so used, if at all, while matter which denies the right of action must be pleaded in bar, citing 1 Corpus Juris, 29; Keokuk Bridge Co. v. Wetzel, 228 Ill. 253; Grand Lodge v. Randolph, 186 Ill. 89; Hippach v. Makeever, 166 Ill. 136; Pitts Sons Mfg. Co. v. Commercial Nat. Bank, 121 Ill. 582; Palmer v. Gardiner, 77 Ill. 143; Waterman v. Tuttle, 18 Ill. 292, and Stillson v. Hill, 18 Ill. 262. In any event, it would appear that the form of the judgment entered in the case at bar was erroneous. As to the right of appellant to bring the suit before final discharge and while bankruptcy proceedings were pending, there have been contrary holdings in the various States and the Supreme Court of this State does not seem to have passed upon the direct question.

The question was directly passed upon by the Appellate Court of the First District in Nonotuck Silk Co. v. Pritzker, 143 Ill. App. pages 644, 648, and that court held:

“It is claimed that the proper construction of the National Bankruptcy Act makes the present case fall within this provision, and that there is in the National Bankruptcy Act ‘a statutory prohibition’ of the maintenance of a suit during the pendency of the bankruptcy proceedings at least until an unreasonable delay has taken place in asking for and procuring a discharge. But there does not appear that there is any such prohibition against beginning or maintaining a suit in the Bankruptcy Act of 1898. There was one in the Act of 1867, which applied only, however, to creditors proving their debts or claims in bankruptcy. Holland v. Martin, 123 Mass. 278; Doe v. Erwin, 134 Mass. 90. That Act provided that a creditor proving his debt ‘should not be allowed to maintain any suit at law or in equity therefor against the bankrupt. ’ The cases cited by the plaintiff which arose under that law are not applicable under the present'act, for that has omitted any provision which can be properly construed to forbid the bringing of a suit after the bankruptcy proceedings are begun. It is provided by section 11 a, that a suit pending at the time the petition is filed shall be stayed until after an adjudication or dismissal, and may be further stayed until twelve months after the adjudication, or until a pending application for discharge is determined. But this refers only to suits pending when the petition is filed (In re Clairborne, 109 Fed. Rep. 74), and we cannot assent to the theory of the plaintiff, that by recognizing certain rights of the plaintiff in pending suits, the statute prohibits the bringing of other suits. Such an implication is altogether too wide. But in any event, even were the provision of the law of 1867 in force and the reasoning in the case of Hall v. Greenbaum, 33 Fed. Rep. 22, and that in the other cases cited by the plaintiff therefore applicable, we cannot see how it would affect the present case, for there is no evidence in this case that the plaintiff ever proved its debt in the bankruptcy proceedings.

“It is conceded, however, that under the provisions of sec. 2, clause 15, of the Act of 1898, the District Court of the United States can stay the prosecution of suits begun after the petition is filed, and as we understand the plaintiff’s argument, it insists that this power to stay the suit is equivalent to an ‘injunction or order of court’ staying it. This plainly is not sound, nor would the staying of the prosecution of a suit be equivalent to ‘staying the commencement of a suit.’ Bringing the suit within the period of limitation would have suspended the operation of the statute; that it might have been stayed after it was commenced does not excuse the plaintiff from so instituting it, and it should have followed the course which the court commended in In re McBryde, 99 Fed. Rep. 686, that is, been ‘vigilant and unwilling to trust a theory when there was a way certain.’ The court in that case expresses a doubt whether the ‘theory’ may not have been sound, but we cannot hold it so in this case.

“We think it entirely within the discretion of the bankruptcy court to stay or refuse to stay the prosecution of an action against a bankruptcy which was commenced after the filing of the petition (In re Knight, 125 F. R. 35; In re Remington Automobile & Motor Co., 119 F. R. 441; In re Porter, 109 F. R. 111), and. that in the absence of such a stay by the Federal Court or the State Court, the action may proceed, and that in no event can the commencement of - such an action, which will in itself save the bar of the statute, be prevented. Therefore this first contention of the plaintiff we must reject.”

The same construction of the law has apparently been made in Roebling’s Sons Co. v. Federal Storage Battery Car Co., 173 N. Y. Supp. 297; Kreitlein v. Ferger, 238 U. S. 21, 59 Law Ed. 1184; Roth v. Pechin, 260 Pa. 450, 103 Atl. 894; Hackett v. Supreme Council American Legion of Honor, 206 Mass. 139, 92 N. E. 133, and In re Camelo, 195 Fed. 632. Many cases are cited from the Appellate Courts of this State and one from the Supreme Court, in all of which the litigation arose subsequent to the discharge or where the State court sought to take jurisdiction over property within the purview of the bankruptcy court, none of which we deem is determinative of the issues in the case at bar.

In view of the holding of the court in Nonotuck Silk Co. v. Pritzker, supra, and our own construction of ■the act, it is the opinion of'this court that the rule laid down should be adhered to and the judgment of the circuit court of Adams county be reversed. Accordingly, the judgment of the circuit court of Adams county is reversed and the cause remanded with directions to sustain appellant’s demurrer to the plea in abatement.

Reversed and remcmded with directions.


text:
    Herman Shoel, Appellee, v. S. S. Kresge Company, Appellant.
    Gen. No. 8,331.

      Opinion filed June 11, 1929.
    Bracken, Livingston & Murphy, for appellant.
    L. Earl Bach and William R. Bach, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in case. The declaration consists of two counts, the first of which avers that on October 16, 1926, appellant was operating a store in Bloomington, Illinois; that on said date appellee was engaged as an independent contractor in said city, in the business of hauling and teaming, and that in said capacity he had, prior to October 16, 1926, contracted with defendant to remove from the basement of said store building, for a consideration, all boxes, wood, shipping cartons, excelsior, paper and all other refuse as the same accrued; that on October 16, 1926, said relation between himself and appellant existed; that there was a certain rear entrance to said store building, which was the only one to the building except the main entrance thereto, which latter was provided for the customers of appellant only; that said rear entrance was the only one provided by appellant for the purpose of receiving merchandise and disposing of boxes, wood, shipping cartons, etc., that said rear entrance was constructed on the level of the alley or roadway which abutted the rear of defendant’s said store building, so as to admit of any and all packages consigned thereto from the ground -level, without obstruction; that said entrance was provided with a steel apron (or plate) of the width of twenty-four inches, which extended completely across said entrance, and tilted towards the basement floor at a great angle, which apron (or plate) was connected with the inner rear wall of the building; that said entrance was also provided with a stairway, which extended from the basement floor to the inside of the rear wall of the building and abutted the end of the said apron (or plate) on the side of said entrance; that in order to use the stairway it was necessary for appellee to step upon said apron (or plate) with one foot to enable him to place the other foot on the top of the stairway; that said entrance was necessarily used by appellee in going to and returning from the basement of appellant’s said building; that it then and there became the duty of appellant to use reasonable care to keep and maintain said rear entrance in a reasonably safe condition for appellee’s use.

It is further averred in said first count “that defendant, not regarding its said duty in that behalf, negligently and carelessly suffered and permitted said apron in said rear entrance to be and become covered with grease and oil in large quantities, causing a dangerous condition to exist, of which plaintiff was wholly unaware.”

It is further averred in said first count that on October 16, 1926, appellee, while engaged in his said contractual duties with appellant in and about removing all boxes, wood, shipping cartons, etc., from the basement of said building, and while passing through said rear entrance from said alley to said stairway, and while in the exercise of ordinary care for his own safety, “placed his left hand onto the side of said rear entrance, grasping same firmly and endeavoring to support himself, and with due care and caution for his own safety, then placed his right foot on said apron (or plate), wholly unaware of any oil or grease upon said apron.(or plate), and in so doing his right foot was then and there caused to slip, pulling his grasp loose from the side of said rear entrance, and thereby throwing plaintiff to and upon the basement floor on the inside of said entrance,” with great force and violence, and he was thereby greatly bruised, hurt and wounded, etc., and so remained for a long space of time, to wit, hitherto, during which he suffered great pain, and was hindered and prevented from attending to his affairs and business, and was forced to expend $250 in endeavoring to be cured, etc.

The second count is substantially the same in all respects as the first.

Appellee testified that he lives on a small farm just west of the City of Bloomington, where he does a gardening and dairying business, and also raises hogs, and farms some; that he also does a trucking business. For a number of years he has been getting slops from the Peoples Restaurant, which is in a building just across the alley at the rear of appellant’s five and ten cent store, which is located on North Main street in said city; that in the year 1924 he first began, under a contract with appellant’s manager in that regard, to remove boxes, cartons and other rubbish from the basement of appellant’s store, and that he continued to do so for about one year; that during all of said period he daily passed in and out of the rear entrance to appellant’s store building; that he again began work for appellant at the same job in April, 1926, and continued until October 16 of that year, when he received" the injuries for which damages are sought in this case.

All conditions, in so far as the rear door and chute and steps were concerned were the same and unchanged, throughout both periods for which appellee worked under his respective contracts with appellant. Under the terms of his contract he received two dollars a week, and all the salvage of the various kinds' of materials removed by him from'said basement. Appellee did his work in his own way; that is, no one connected with appellant gave him any orders or directions as to the manner or the method which he should adopt or pursue in removing said materials. Under his contract it was necessary only for him, in so far as appellant was concerned, to keep the store basement clear of all such materials. Appellee hauled with his auto truck, on the average, four to six loads a week. Prior to the time of his injury he had used the rear entrance in question at least four hundred times.

The location of the rear entrance and the stairway and the three skids, constituting the so-called chute in the basement and the rear opening, apron (or plate) are fully shown by photographs in evidence. There was a verdict for appellee and judgment in the sum of $1,500 and appellant has brought the record to this court, by appeal, for review.

The only negligence charged in the declaration is, that appellant, “not regarding its said duty in that behalf, negligently and carelessly suffered and permitted the said apron in said rear entrance to be and become covered with grease and oil in large quantities, causing a dangerous condition to exist, of which plaintiff was unaware,” etc., by reason of which appellee was injured; nevertheless, the court permitted, over the objection of appellant, the witness Carr to testify to injuries he had received from falls down this chute, both before and after the accident to appellee when the apron (or plate) in the opening was dry and rusty. This was error. There were various rulings upon the admission and rejection of testimony, over the objection of appellant, which we deem in some cases were error and which prejudiced appellant’s cause.

We have examined the record in this cause and are fully persuaded that the verdict is not supported by the proofs. On cross-examination appellee was asked what he did after the accident. The witness, after reciting various acts, ended with the following: “So I . sat there and I slipped my hand along my pants and there was a little grease on the bottom of my shoe.” Motion was made to strike out this voluntary statement, but it was denied. This was error. Appellee testified that he handled swill and slop and “stuff like that” and further testified: “I stopped the truck and got out like usual and started towards the doorway. And I knew that they greased it on the north side where the skid is, but. never greased it on the south side where I step. I stepped on there. Looked down first and stepped on the plate, with one hand on the south brick wall — the only thing there is for to steady one on the step or on the plate until you get down to the steps; and ray right foot slipped from finder me and I shot down into the basement.” This was all of appellee’s testimony on the direct as to negligence, although appellee, over the objection of appellant, was permitted to testify to all of the surroundings and conditions to gain entrance into the building from the rear to accentuate the idea that the whole construction of the building was at fault and negligence. On cross-examination appellee further testified that he looked at the apron or plate before he stepped on it and that “some one at times would put oil on the steel plate; the plate is on top of the skid as part of the chute part; they didn’t put grease or oil on the chute proper,” and again in answer to the question:

“Q. The grease or oil you saw was on the plate alone?
“A. On this steel plate. I saw the man oiling it.”

That there might be no mistake about this matter the question was put to appellee two or three times and he insisted the oil and grease was on the steel plate; that he had gone through there several hundred times and knew all about it. However, on redirect examination, appellee, over the objection of appellant, was permitted to testify that never before the day of the accident had any oil been put where appellee, stepped and that the part that had been oiled was the north side right above the skids. It is plain that appellee intended to testify that they did oil and grease the skids and the “plate” which reaches up inside of the basement to the lower part of the opening, but he asserted positively that he never saw any oil or grease on the apron or plate where he stepped. And counsel for appellee only contend that there must have been some oil or grease negligently placed or permitted to accumulate upon the iron plate or appellee could not have found “a little grease on the bottom of my shoe,” the only evidence of which was the voluntary statement of appellee, which should have been stricken out. Appellee is not corroborated in any of his testimony as to the injury.

Appellee, after the injury, went up the stairway and out through the door or opening and over the plate and saw no oil or grease on the plate. The superintendent of the basement was in the cellar at the time of the accident and he saw appellee fall and sent for Mr. Se-cord, the general manager of appellant, and both talked with appellee. He stated to them that “he had fallen from the chute;” that he didn’t know how it happened unless there was a little piece of paper on the chute. He said, “that is the only way that I know that it could have happened.” Beroyer and Second also testified that no oil or grease was ever put on the iron apron (or plate); that oil was put on the lower skids to aid the boxes and packages in sliding or moving. Beroyer testified there was no oil or grease on the plate or apron on the day in question. Appellee testified he did not see any oil or grease on the plate on the day he was injured. Appellee’s business was to take all kindling, boxes and refuse from appellant’s basement. He was also employed to haul slops from the Peoples Restaurant in the same alley. It may be appellee did find a bit of grease on the bottom of his shoe, having come from the Peoples Restaurant, and which he overlooked in talking with Secord and Beroyer ; but if he saw no grease or oil on the steel plate at the time he stepped on it and later stated to the two witnesses that he thought he slipped by stepping on a piece of paper, which statements appellee did not deny, this record is barrén of any issue of fact upon which it should have been submitted to a jury.

Appellee, by his declaration and by the proofs, was an independent contractor, and appellant is not liable to appellee for the injury unless it is shown by the evidence that appellant negligently and carelessly caused or permitted oil or grease to be placed upon the iron apron or plate where appellee was required to step or walk without the knowledge of appellee, and that appellee, using due care and caution for his own safety, was injured by reason of such negligence and carelessness. Even if it is admitted in evidence that at some time appellee found a small bit of grease upon his shoe, there is no proof offered tending to show that the grease came from the steel plate or that appellant was guilty of any negligence. Under the proofs, it is just as reasonable to believe that the grease came from the “slops” or from the skids in the basement beside which appellee fell.

At the close of plaintiff’s case and at the close of all the evidence, appellant submitted motions with instructions, asking the court to instruct the jury to find appellant not guilty. These motions should have been granted, as there is no testimony in this record tending to show that appellant was negligent as charged in the declaration.

For the reasons stated, the judgment of the circuit court of McLean county is reversed, with a finding of fact.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

The evidence does not show that the appellant was guilty of negligence; nor that the appellee has a cause of action against appellant.