text:
    Carlyle Water, Light & Power Company v. City of Carlyle.

      Municipal Corporations—-Contract—Ultra Yires—Water Company—Unsatisfactory Test—Indebtedness—Constitutional Limit—Monopoly—Propositions of Law—Practice Act, Sec. 42—Evidence—Instructions.

      r 1. A city reserving only the right to dictate to a water company as to the source of supply, can not do so as to the location of a standpipe.
    2. Propositions of law. to be held or1 refused by a court sitting without a jury, must be presented before verdict.
    3. Upon the proposition that a contract, giving a water company the exclusive right to supply for twenty-one years, was ultra vires as interfering with the legislative power of the city, this court holds that the same should not be held void for such reason, but simply voidable so far as it is' executory.
    4. In an action brought to recover on a contract between a municipal corporation and a water company, it is held: That there is no merit in the plea that the indebtedness created by the contract exceeded the constitutional limit, the amount being figured on the as-umption that the rental of hydrants for twenty-one years was a present indeb edness; that no appropriation was necessary on the part of the municipality, at the time of or before entering into the contract; and that but one test of a series of four hydrants could be required.'
    [Opinion filed March 14, 1889.]
    Appeal from the Circuit Court of Clinton County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Murray, Van Hoorebeke & Ford, for appellant.

      The proper location of everything except the standpipe is expressly admitted. The ordinance requires that a majority of the aldermen approve of the location, and two witnesses swear they did so approve, and though all the aldermen were sworn and testify, there are none who gainsay the statement. The mayor says it was not approved by the council in open session, which is not a requirement of the ordinance. That the location is no way objectionable is shown by "the fact that no complaint has been made, and the city council ordered the test of the works without objection, and this observation , applies with equal force to the objection attempted to be raised as to the boilers.
    The evidence abundantly proves that within the time specified in the ordinance, or at least within the further time allowed by defendant, the contracting company and plaintiff, as its assignee, erected, at the places designated in the ordinance, a complete system of waterworks, of sufficient capacity to furnish at all times all the water necessary or demanded for the use of the defendant and of its inhabitants in accordance with the ordinance contract, and that afterward, and upon the 16th day of September, 1887, the plaintiff, by test through such system, did throw simultaneously through 100 feet of 2^-inch rubber hose and 1-inch ring nozzle, four streams of water at least 60 feet high by standpipe pressure, and at least 80 feet high by direct pressure of its pump, from four of its hydrants theretofore selected by the defendant’s city council in open session, for the express purpose of making the test provided by the 9th section of the ordinance, and that thereafter plaintiff has kept said system in complete running order, and has supplied the defendant and its inhabitants with all the water required by the ordinance, and in-all things kept and fulfilled every act and thing required of the plaintiff by the ordinance, and that the water is pure and wholesome.
    Granting that we have proved all things, the test included, as set forth in the declaration, it will be argued, as was held by the trial court, that the defendant had the right to demand a reasonable number of the hydrants be tested, and was entitled of right by the terms of this contract to require plaintiff to make the test on the Franklin street man on the 17th day of September, being the next day after the successful test from the hydrants actually designated by the council in ojien meeting, and that jilaintiff, the second day, failed to make the test successfully, and that the making of a successful testirom these four hydrants, all situate on a main whose west end is dead, was a condition precedent to the right of plaintiff to recover. We deny this. The main extends from east to west on Franklin street, and it is not claimed that it is fed at its west end. It has but two ends—an east end and a west end; its east end is fed, its -west end is not fed.
    As a prime condition of any test the ordinance (latter clause section 9) provides that at least two of the hydrants to be tested shall be located on a main fed from both ends. The four hydrants here are all on a main the west end of which_ is not fed, but is dead, and therefore it was not in the power of the city to designate these hydrants for test.
    Again, the language is that the test shall be made from any four hydrants designated by the city council, two of which shall be on a main fed from both ends; and this designation was made by said council on the 14tli day of September, 1887, to be tested on the 16th, and the designated hydrants were then and there on the said 16th so tested, and the test tilled the requirements; so testifies the mayor, so testifies every alderman and all other witnesses who speak to the point, and so the city council entered upon its records. We insist the city council, having made its selection on the 14th, and made the test on the 16th, jiursuant to such designation, the plaintiff succeeding in this test, and having in.all other respects fulfilled its contract, nothing remained for the defendant but to • accept forty-three hydrants and to jiay for their use as it agreed to do.
    This must have been the view taken by the city authorities, for the next day (the 17tli of September) they filed the ordinance, levying a tax expressly to pay for the use of tliesQ works with the county clerk, and have caused the tax to be extended on the tax books. It has been paid, every dollar, and is now in the city treasury.

      There is no warrant -in this ordinance for more than one designation of hydrants, nor for test of' any. hydrants othbr than those once designated. The power to designate the hydrants from which the test should he made was exhausted the instant it was exercised-.
    Messrs. E. B. Green and G. J. McGaffigan, for appellee.
    From section 42 of the chapter on practice, for the submission of written propositions of law to be held, refused or modified within such time as the court may require, it ft obvious that the time to be lixed by the court, within which they shall be presented or submitted is some time before the decision of the questions involved and the rendition of the judgment. If the court is to instruct itself upon the law of the case it is all-important that such instructions should be given before the court passes upon the questions and renders a verdict. In this case the propositions of law were submitted, three days after the rendition of the judgment, and counsel had not asked the court to tix a time within which to submit their propositions of law. The record'shows that appellee’s propositions of law were submitted and passed upon by the court on the trial of the case, and some were held by the court and some were refused.

    An examination of the propositions of law submitted by appellant’s counsel will disclose the fact that appellant has all advantage in this court of the questions of law raised by those propositions, that he could have, had all these propositions submitted been refused. It is said they are the antitheses of the propositions of law submitted by appellee and held by the court; if so, the same questions are embraced in appellant’s fourth assignment of error, and can be considered by . this court on this appeal. In any view that can be taken of the action of the court in refusing to consider appellant’s propositions of law, no such error was committed as has ¿deprived appellant of any right, and the judgment should not be reversed for that reason.
    The submission of propositions of law is unlike a motion for a new trial in this, that motion for a new trial may be made at any time during the term, for the statute so expressly provides; but .there is no such provision as to the submission of propositions of law; and when, as in this case, counsel failed, or neglected, on the trial, to submit their propositions of law, or to ask the court to fix a time within which they could do so, they have-no reason to complain of the action of the court in refusing to consider them.
   Phillips, J.

The city of Carlyle, in the latter part of 1886, desiring to provide a system of water-works, entered into a contract with the Water, Light and Power Company of St. Louis, Mo., for the construction of the same, which contract was by ordinance of the city of Carlyle duly enacted, as follows:

Ordinance LTo. 8.

Entitled, an ordinance to provide for a supply of water for , fire protection and for use of the inhabitants of the city of Carlyle, as follows:

Section 1. The Water, Light and Power Company, St. Louis, Mo., a duly incorporated company, its successors and assigns, for and in consideration of the obligation hereinafter imposed upon it by this ordinance, is hereby authorized to use the streets and alleys and other public ways and grounds of the present and future limits of the city of Carlyle, for the purpose of laying down pipes for the conveyance of water in and through said city, for the use of said city and its inhabitants.

Sec. 2. And said company, its successors and assigns, shall have the exclusive privilege of laying down .pipes for . conveying water in said city for the use of said city and its inhabitants, for the term of twenty-one years from the date of the passage of this ordinance; provided, that the said company, its successors or assigns, shall, within thirty days from the approval of this franchise, establish the best and most suitable place within or near the eastern boundaries of this city for the source of water supply, which shall be submitted to, and approved by a majority of the city council, and have said works completed and in successful operation within nine months of such location, and shall keep and maintain such system of water-works, with all future additions and extensions, in successful operation thereafter during the term of this franchise; unavoidable accidents or delays, consistent with ordinary precaution, only excepted.

Seo. 3. That said company, its successors or assigns, shall erect within or near the corporate limits of this city a complete system of water-works, of sufficient capacity to furnish at all times all the water necessary for the use of said city and its inhabitants, and shall at all times make-all additions and extensions necessitated by the increased demand of said city.

Sec. 4. That said company, its successors or assigns, shall, at the place to be established, as provided in section 2 of this ordinance, erect the necessary and substantial bin dings and appliances for such system of water-works, and shall erect and put up a tank of boiler iron one hundred and fifteen feet high, from ten feet'below the level of the court house square, which shall have a capacity of not less than fifty thousand gallons, or, at the option of the company, an elevated boiler iron tank, holding 50,000 gallons, the top of which shall be of same height mentioned.

There shall be two supply pumps, of the Blake, Worthington or Deene patent or manufacture, of best and latest construction, capable of furnishing one million gallons of water per day of twenty-four hours. Two steel boilers, of best construction, and so arranged and built that they may be fired and used separately or together, and each to be of sufficient power to run both pumps at the same time with easy firing, and provide everything necessary and desirable for a complete and successful plant of water supply, and to secure the necessary supply of pure and wholesome water from the Kaskaskia river, above city sewerage, and to prepare wells and reservoirs necessary for the proper filtering of such water.

Sec. 5. Starting from these works the said company, its successors or assigns, shall lay down and maintain a complete system of cast iron water mains, of standard weight, so arranged as to provide best for a full and regular supply in all parts of the city, as well for domestic as public use, and attach to said water mains, without cost to the city, forty-three double discharge fire hydrants of best and latest construction, at such points and places as the proper authorities shall designate, and to connect with such system of pipes or any addition or extensions thereto, as many additional fire hydrants as may be required by such authorities, provided that no extension of more than five hundred feet shall be made for each additional hydrant. Any of such hydrants shall be moved- or changed at any time, by direction of said city, by said company, the costs of which shall be borne by the city.

Seo. 6. That the size of the water mains shall be as follows: Starting from such standpipe or water-works, there shall be laid an eight-inch pipe to Water and Fairfax streets, and up Fairfax street to Fifth street; there shall be a six-inch pipe laid from Fairfax and Fifth streets, in Fairfax street, to Tenth street, and from Fairfax and Fourth streets, in Fourth street, to Franklin street; thence west in Franklin to Sixth street. There shall be four-inch pipe laid from Franklin, and Sixth streets, in Franklin street, to Sixteenth street; from Tenth and Fairfax streets, in Fah-fax street, to Thirteenth street; thence south to Franklin street; from Fairfax and Twelfth streets north in Twelfth street, to Livingston street; thence east in Livingston street to Fifth street; thence south in Fifth street to Fairfax street; from Livingston and Fifth streets to Clinton street; from Sixth and Franklin streets south in Sixth street to Methodist street; thence west in Methodist street to Tenth street; thence north in Tenth street to Franklin street; on both Eighth and fsTinth streets, from Fairfax to Franklin street. All of said pipe tobe properly connected, so as to make one complete system of water main. All dimensions to be interior measure.

Seo. 7. That said company, its successors or assigns, shall, at the request of any citizen, without unnecessary delay, put down the necessary pipes, and connect same with system of mains, so as to supply said citizens with water for all domestic purposes.

Citizens to pay the actual cost of making such connections, including necessary pipe. All service pipe to be paid for from center of street by property owner.

Sec. 8. Said company, its successors or assigns, are hereby bound to have all injuries to streets, alleys and sidewalks caused by laying and operating such water-works, immediately repaired, so as to leave such streets, walks, etc., in as good condition as they were before said injury was done.

Sbo. 9. The city of Carlyle, by its city council, for and in consideration of the obligations imposed upon said company, its successors and assigns, by the foregoing sections, hereby agree to and contract with said company, its successors or assigns, to accept the forty-three hydrants stipulated in section five of this ordinance, for the use of said city, as soon as the same are erected, connected with the water main1? and supplied with water, and otherwise conform to this ordinance. And from that day to pay said company, its successors or assigns, the sum of $4,883 per annum for each and every tire hydrant above enumerated, and for each fire hydrant attached to any extensions or additions to above system the sum of $45 per annum for and during the term of this franchise, said payments to be made semi-annually; first payment to be made at the expiration of five months after the acceptance of said hydrants by said city; said city shall draw orders for such payments as the same become due, and in the event of there being no funds in the treasury of said city for the payment of the same when drawn, then such orders shall bear interest from the date of their presentation to the treasurer of said city, until the necessary funds 'shall be in said treasury for the payment thereof, at the rate of six per cent, per annum. Provided, said works shall not be accepted by said city, until the said works are complete and in complete running order, according to the specifications set forth, nor until said company shall, by test, through such system,' throw simultaneously four streams of water from any four hydrants to be designated by the city council, through one hundred feet of two and one-half inch rubber hose and one-inch ring nozzle, at least sixty feet high by standpipe alone, and eighty feet high by direct pressure from the pumps, provided any two of said hydrants are located on a main fed from both ends.

Seo. 10. The city of Carlyle reserves the right on and after the expiration of fifteen years, to purchase the works of said company, together with the extensions, rights, etc., belonging to the same, on giving the company six months notice in writing, the valuation to be determined by three disinterested persons, the city to choose one, the company one, and the two so chosen to select a third; and the valuation of the works by such appraisers, or if they fail to agree, then by a majority of them, who shall define the sum to be paid by the city to the company as to the value of the works, and either party shall have the right to call in expert testimony of no more than three witnesses each, and in case of failure on the part of the city to purchase the works when so appraised, then the expenses of such appraisement shall be borne by the city, and this contract shall continue, and the city shall have the right to purchase said works at the expiration of each five years thereafter in the same manner.

Seo. 11. In constructing and operating said works the company shall be liable at any time for any damages arising from injury to property or persons in said city arising from negligence of said company or its servants, and said company shall save the city harmless from any damages therefrom.

Seo. 12. The fire hydrants are to be used without charge to the city, for extinguishing fires, reasonable hose practice by -fire companies, flushing sewers and gutters, and for washing all fire apparatus belonging to the city or its fire companies, and for no other purpose.

Seo. 13. The city of Carlyle shall pass such ordinances as may be necessary to protect said company in its peaceable and uninterrupted exercise of its lights under this franchise.

Seo. lé. Said company, its successors or assigns, shall have the right to adopt meter measure for water, and whenever, from any cause, such company shall be unable to supply water to either the city or its inhabitants, then all rents for the use of water shall cease during such period.

Seo. 15. Said company shall execute a good and sufficient bond in the penal sum of five thousand dollars, conditioned for the faithful performance of the matters required of it by this ordinance.

Seo. 16. The following requirements shall be deemed as a part of this ordinance and contract:

1. All walls shall be of brick or stone, and pump-house practically fire proof.

2. The standpipe shall be laid upon a foundation of solid masonry, laid in cement.

3. All water mains are to have three feet covering.

4. All walls used in the construction of said system are to be of the best of their respective kinds, and pump-house practically fire proof.

5. Said company shall connect its works with at least three different points, to be designated by the city council, by telephone or some other electric alarm; such communication to be in operation all the time.

6. The standpipe shall be filled every night between the hours of 8 and 11 o’clock and at all other times practicable.

7. A full head of steam shall be put on as soon as possible after an alarm of fire is given, and to that end said works shall at all times be kept in condition, by banked fire or otherwise, to facilitate an immediate force of steam.

Part of ordinance fixing rates for individuals. | Approval of ordinance.

After the enactment of that ordinance the Water, Light & Power Co., of St. Louis, Mo., entered on the work of laying mains, putting in hydrants, erecting standpipe, engine house, etc., in accordance with the requirement of the ordinance.

The contract was assigned to appellant in May, 1887. Appellant proceeded to the completion of the works, and on August 8, 1887, the city council of the city of Carlyle passed a resolution extending the time for the completion of the contract thirty days. After the completion of the works by appellant the city council of the city of Carlyle, at a regular meeting of the council, entered an order as follows :

September 14, 1887.
" Ordered that the test of the Carlyle water-works take place on Friday, Sept. 16, 1887, at 10 o’clock a. m. The test to be made from four hydrants, to wit: From the hydrants on 16th and Franklin streets, 12th and Livingston streets, 10th and Washington streets, 8th and Fairfax streets ; also from 10th and Franklin streets and 7th and Franklin streets. Adjourned to Saturday, September 17, 1887, at 1 o’clock.
Darius Kingsbury, Mayor.
C. R. Berner, Clerk.”

This action of the city council was in accordance with the proviso of section 9 of the. ordinance above cited. On September 16th the test was made, and at a meeting of the city council on the 17th of September, 1887, the following proceedings were entered of record :

“Adjourned meeting of the Carlyle city council, held September 17, 1887, mayor and all members present. Proceedings of last regular meeting read and approved.

“ The council, as a committee, report that the test of the Carlyle water-works was made on the 16th instant from one hydrant on 8th and Fairfax; from one hydrant at 10th and Washington; from one hydrant at 16th and Franklin, and from one hydrant at 12th and Livingston streets.

“The above test reported to have filled the requirements of Water-works Ordinance, No. 8.

“ A second test was ordered for September 17th, at 11 o’clock A. h.; from one hydrant at 11th, one at 12tli, one at 13th and one at 16th and Franklin streets. Test resulted in deficiency, and a new test from the same hydrants was ordered to take place at 3 o’clock of the same day from the same hydrants, with standpipe pressure only, the test resulting as follows: Hydrant at 16th and Franklin estimated at 46 feet; on 13th and Franklin, 53 feet; on 12th and Franklin, 45 to 48 feet, and on 11th and Franklin, 60 feet.

“ The test made on the 16tli and 17th inst. was made in the presence and by the approval of N. W. Perkins, secretary of the Water, Light and Power Co., he being the only representative of said company present at any of said tests. Therefore, in consideration of the premises the following resolution was unanimously passed by the council, to wit: Resolved, that the test made on the 16th and 17th instant, of the Carlyle water-works, not having come up to the requirements of Ordinance Ho. 8, entitled, Water-works,'it is therefore ordered that the said works be not accepted until said works come to the test required by said ordinance. Adjourned.

“ Darius Kingsbury, Mayor. Attest: “C. R. Berner, Clerk.”

On the trial, by agreement, the ordinance first above quoted is regarded as the contract in the case. The appellant instituted his action of assumpsit to recover, in accordance with the contract, filing a declaration with special and common counts. The defendant pleaded the general issue and certain special pleas, to which special pleas demurrers were interposed and sustained. Trial was had before the judge, a jury being waived, and a verdict and judgment thereon entered for defendant.

The proper location of watertower, fountains, waterpipes and of everything else, except standpipe, was admitted by defendant. By -the proviso of section 2 of the .ordinance the company was to “ establish the best and most suitable place within or near the eastern boundaries of this city for the source of water supply, which shall be submitted to and approved by the city council.”

This is the only provision as to the selection and location of any part of the works, and as everything is admitted to be properly located except the standpipe, the question presentid is simply as to its proper location.

The only reservation by the city council as to its approval of location is as to “the source of water supply;” and there is such a difference between the meanings of the terms, “source of water supply” and “standpipe,” that one can not be held to include the other. The one is the point from which the water is supplied; the other the place from which it is distributed. The reservation of the right to approve the location of the water supply is not a reservation of the right to approve location of the standpipe.

It appears that no objection was made during its erection by officers of the city who had knowledge of the place where it was erected and of the fact of its erection there. Under •the contract. the city did not reserve the right to approve the location of the standpipe, and can not now be heard to complain of the point at which it was erected. From the records of the city council in evidence it appears that, on completion of the water-works, a test was to be made; and on the 14th of September, 1887, the city council, in accordance with the proviso of section 9 of the ordinance, selected four hydrants, designating them, and also selected two additional ones. The . test was ordered to be made on the 16tli of September.

As appears by the record of the city council of September 17th, the test from the four designated hydrants was satisfactory and in accordance with the requirements of the ordinance. And it does not appear from this evidence that the city council ever designated any other four hydrants than by its order of September 14th. It is true the mayor states that on the 16th, after the test had been made, there was an informal meeting of the board at the hotel corner, and Perkins, who was making the tests for appellant, was there, and .said they could select any four hydrants they wanted and make a further test. He also states that there was no meeting of the city council on the 16th. The record of the city council of the 14th shows that an adjournment to the 17th, at one o’clock, was had. How, by the proviso of section 9 of the ordinance, the hydrants from which the test was to be made must be selected by the city council, and that part of the pretended record of the city council of the meeting of the 17t'a which recites that a test was ordered for the 17th, at eleven o’clock a. m.. could not refer to a test ordered by the city council. Mor does th% evidence in the case show that it was. Yet no test could have been ordered except by the city council.

But had the appellee the right, under the contract, to require a test made from more than four hydrants? As wo construe the contract, the only test the appellee had a right to call upon the appellant to make, was from any four hydrants the appellee might select. Yet it is apparent the trial court held that the appellee had the right to require more than one test and from more than four hydrants. In this there was error. . .

Certain propositions of law wore submitted by appellee to be held, refused or modified by the court. The first was, that appellant, must be required to make out its case by a preponderance of the evidence, which the court properly held. The second was, that “ the defendant was not required to accept forty-three fire hydrants, as in said section provided for? until they had been tested in the manner therein provided fur testing them, and it was ascertained by such test that they would do the work therein provided for them to do,” etc. This proposition is, that the whole forty-three hydrants were first to be tested, but such was not the contract. Tet the court held this proposition as law. In this there was error.

A further error assigned by appellant was, that after verdict, and three days after, although before a motion for a new trial, seven propositions of law to be held, refused or modified, were presented to the court by appellant, which the court declined to consider. A verdict is defined as “ the opinion of a jury, or a judge sitting as a jury, on a question of fact.” B. & L. Law Diet. Sec. 42 of the practice act says: “In all cases in any court of record of this State,if both shall agree, both matters of law and fact may be tried by the court, and upon such trial either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write ‘held’ or ‘refused’ as he shall be of opinion is the law, or modify the same, to which either party may except as to the opinions of the court.” After a case is decided propositions can not be"held or refused in the decision of the case. The aid the court might have from the submission of the propositions in proper time, has been lost. And if, three days after verdict, propositions might be presented, final disposition of a ease might be indefinitely postponed. "We therefore hold that the propositions of law to be held or refused by a court sitting as a jury must be presented before verdict. So that there was no error in refusing to consider the propositions of law so presented by appellant.

Appellee assigns cross-errors, as follows: Sustaining demurrers to third and fourth special pleas and refusing appellee’s fourth proposition.

The fourth proposition presented by appellee is that the contract sued on is ultra vires, for the reason that it extends through a period of twenty-one years and deprives subsequent city councils of legislative control over the matter embraced in the contract. This identical question was passed on by the Supreme Court of this State in City of East St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415, where it was held: “ It does not appear in the case nor is it claimed, that the city has exercised its power by ordinance or otherwise, or manifested a wish to provide differently than as by the contract. So far as the contract has been executed it has been as one for the furnishing of the light during the pleasure of the city. Courts should not destroy the contracts made by parties further than some good reason requires. Such an objection as is made to this contract, that it interferes with the exercise of the legislative or governmental power of the city over the subject, does not require that the contract should beheld void, but only voidable, so far as it is executory.” To the same effect is Decatur Gas Light & Coke Co. v. City of Decatur, 24 Ill. App. 544.

There was, no error in refusing to hold appellee’s fourth proposition, and sustaining the demurrer to appellee’s fourth plea was proper. That plea is that the defendant, the city, was indebted in the sum of $1,000 other than by this contract, and that the entire taxable property within the corporate limits was only $256,740; that the indebtedness created by this contract was $44,100, and exceeds five per centum of the value of all the taxable property of the city. This amount of indebtedness is reached by assuming that the forty-three hydrants, at $48.83 per hydrant, for twenty-one years, is an immediate, present indebtedness, which is not correct. E. St. L. v. E. St. L. G. L. & C. Co., supra.

The third special plea, to which the demurrer was sustained, was, that previous to the contract no appropriation was made by the defendant. The contract was for furnishing an article of daily consumption during a period of twenty-one years, fixing the price per hydrant. It was within the power of the city to contract to have the water. It did not, by the contract, provide for any indebtedness except for water furnished. When the works are kept in such a condition as to keep up a supply of water, then, and only then, does the indebtedness accrue, at the contract rate; but to keep the standpipe and entire system in such a condition as to supply water to tiie city, as required, involves labor and expense to the appellant, in the payment of employes, the wear and tear of machinery and the consumption of fuel, besides the cost of repairs; such ■is the burden upon appellant to keep itself in a condition to furnish water under the contract before being entitled to pay. There was no indebtedness by the contract at the time the contract was made. Nor was there any indebtedness at the time the city found that the works contracted for were completed in accordance with the contract. When the works were completed arid the water kept to the required height in the standpipe, with engine fires kept banked and ready, and mains and hydrants in good repair and ready for service during a period stipulated in the contract, then, and only then, a liability to pay under the contract was incurred by the city, if incurred at all, and then only for such term as had already expired. This being so, then no appropriation was necessary at the time or before entering into the contract. The demurrer to the third plea, therefore, was properly sustained.

For the errors indicated, however, the judgment must be reversed and the cause remanded.

Reversed amd remanded.


source: Caselaw Access Project

author: Phillips, J.

license: Public Domain

text:
    Green C. Patterson, Administrator, v. Nancy Collar.

      Administration—Claim for Services—Family Relation—Special Findings—Limitations—Master and Servant.

    1. In the absence of a contract, the rendition of services by those sustaining near family relations, raises no presumption of an .intention to charge or pay therefor.

      2. A claim filed by a niece against the estate of an uncle for services rendered in his lifetime, and for a sum alleged to have been acknowledged by him to be due the claimant, can not be maintained in the absence of a contract, express or implied.
    3. Admissions to strangers are inadmissible to overcome the bar of the statute of limitations.
    [Opinion filed March 14, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Mr. J. M. Hamill, for appellant.
    The law is well settled, that where a child remains with the parent or with a person standing in the relation of parent, after arriving at majority, and remains in the same apparent relation as when a minor, the presumption is that the parties do not contemplate payment of wages for services. Unless it be shown that there is an express contract to pay for such services, a recovery therefor can not be had. The law, in such case, will not imply a contract on the part of the parent to pay for services performed, nor oblige the child to pay for support, but will presume that neither contemplate recompense, other than such as naturally arises out of that domestic relation. Miller v. Miller, 16 Ill. 296; Brush v. Blanchard, 18 Ill. 46; Meyers v. Malcolm, 20 Ill. 621; Bond v. Lockwood, 33 Ill. 212; Maloney v. Scanlan, 53 Ill. 122; Mowbry v. Mowbry, 64 Ill. 383; Meyer v. Temme, Guardian, 72 Ill. 574; Guffin v. First Nat. Bank of Morrison, 74 Ill. 259; Faloon v. McIntyre, 118 Ill. 292; Arnold et al. v. Franklin, 3 Ill. App. 141; Cooper v. Cooper, 3 Ill. App. 492.
    • This is true where services are voluntarily rendered or support furnished by those sustaining near family relations, whether related by blood or not.
    The evidence must be clear, direct and positive that the relation between the parties was not the ordinary one of parent and child, or of brother and sister, but that of debtor and creditor, or of master and servant. To establish this new relation it is obvious that some arrangement or contract to that effect must be shown. Mo man is to be made debtor without his knowledge or assent, or under circumstances where he has no reason to expect that such is his position or liability.
    It must have been the purpose of the deceased to assume a legal obligation, capable of being enforced against him. The ordinary expressions of gratitude for kindness to old age, weakness and suffering are not to be tortured into contract obligations. Hall v. Finch, 29 Wis. 278; Mountain v. Fisher, 22 Wis. 93; Swires v. Parsons, 5 Watts & S. 357; Bash v. Bash, 9 Pa. St. 260; Lynn v. Lynn, 29 Pa. St. 369; Duffey et al. v. Duffey, 44 Pa. St. 402; Lantz v. Frey and wife,, 14 Pa. St. 201; Defrance v. Austin, 9 Pa. St. 309; Scully v. Scully’s Executor, 28 Iowa, 548; Coe v. Wager, 42 Mich. 49; St. Jude’s Church v. Van Denbery, 31 Mich. 287; Fitch v. Peekham, Executrix, 16 Vt. 150; Weir v. Weir’s Adm’r, 3 B. Mon. 645; Williams v. Hutchinson, 3 N. Y. 312. See authorities cited in note to same case in 39 American Decisions, 306.
    Where two parties understand they are mutually receiving and rendering favors, with no present design to make them pecuniary charge against each other, it is an unimportant inquiry what is their relative value. And where an individual goes to live in a family with the understanding that he is simply to go and come as he pleases, and be treated and entertained as a member of the family, there is no presumption that- he intends to charge for what he does, nor that he is to be charged for what he receives. If he designs to change this relation he must fully notify the opposite party. Dunlap v. Allen, 90 Ill. 108.
    For the purpose for which it was introduced the evidence in question was absolutely worthless, for it neither shows the admission of a debt nor a promise to pay it. Besides, Aultman was not acting as the agent of appellee, and a promise made to a stranger has no effect upon a debt barred by the statute. In order to give the promise legal force and effect it must be made to the party to be benefited, or some one authorized to act in his behalf. Wachter v. Albee, Adm’x, 80 Ill 47; Keener v. Crull and wife, 19 Ill. 189; Carroll et al. v. Forsyth, 69 Ill. 127; Norton v. Colby, 52 Ill. 198; McGrew et al., Ex’rs, v. Forsyth, 80 Ill. 596; Teesen v. Camblin, 1 Ill. App. 424; Katz v. Moessinger, 7 Ill. App. 536; Dawdy v. Nelson, 12 Ill. App. 74.
    Where the statute of limitations has run and become a bar to an action for the recovery of a debt, a subsequent admission by the party owing the debt that the account was correct, or that he had received the goods, money or services, or had executed the note sued on, is not sufficient to obviate the bar. Nothing short of an express promise to pay the money, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay, will remove the bar of the statute. Wachter v. Albee, 80 Ill. 47; Parsons v. N. Ill. Coal & Iron Co., 38 Ill. 430; Kallenbach v. Dickinson, 100 Ill. 427; Thompson v. Reed, 48 Ill. 118; Keener v. Crull, 19 Ill. 189; Ayei's v. Richards, 12 Ill. 146; Cagwin v. Ball & Co., 2 Ill. App. 70; Hayward et al. v. Gunn, 4 Ill. App. 161; Bloomfield v. Bloomfield, 7 Ill. App. 261; Jared v. Vanvleet & Johnson, 13 Ill. App. 517.
    Messrs. Dill & Schaefer, for appellee.
    At the request of appellant’s attorney, the jury round specially two facts: 1st. That appellee, while she lived in his
    family, was treated by Mr. MeClintock as a member thereof. 2d. That appellee lived there as a member of the family.
    These propositions wore never disputed by us. But they do not reach the question at issue. If the attorney had put a third inquiry in these words: “Was Nancy Stout, now .
    Nancy Collar, to be compensated for her services?” The jury would have returned an emphatic “Fes.” By their general verdict the jury answered this question; they said yes, she was to be paid $5,000; this amount being fixed by Mr. MeClintock himself as a fair compensation for her services.
    In Miller v. Miller, 16 Ill. 298, the law applicable to this case is clearly, stated. The court says: “Where one remains with a parent, or with a person standing in the relation of a parent, after arriving at majority, and remains in the same apparent relation as when a minor, the presumption is that the parties do not contemplate the payment of wages for seivices.
    “This presumption may be overthrown, and the reverse established, by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances which show that both parties, at the time services were performed, contemplated or intended pecuniary recompense other than such as naturally arises out of the relation of parent and child.”
    In the absence of express proof a contract may be implied from circumstances. Schwarz v. Schwarz, 26 Ill. 81.
    In the Schwarz case, page 83, the court says: “Intents must be inferred from facts and circumstances. The real object and design of the parties quite often can be reached in no other way. Sometimes very slight circumstances will produce the deshed effect in the minds of the jury; at another time they must be of a stronger character to induce the mind to yield the required assent.”
    Viewed purely in the light of circumstances, is it reasonable to suppose appellee- intended to give to her childless uncle and ¿unt the services of sixteen of the best years of her life without compensation?
    On the other hand, is it reasonable to suppose that Mr. McClintock desired these services asa gratuity? Why should he? He had no children to inherit his property. Appellee was his favorite, and was always a daughter to him. He certainly intended she should be paid, well paid, for her services. But fortunately we have no occasion to resort to speculation or conjecture in order to determine what his intentions were. The testimony of Kase, Rich, Aultman and Jessie Collar settles this question beyond dispute or cavil. He intended she should be paid $5,000, in addition to what she had already received from him.
    -In Warren v. Warren, 105 Ill. 568, the court says: “Where an adult daughter renders services to her father, at his request, in the absence of proof that the services were performed as a gratuity, the law will create a liability on his part to pay for them, though no price has been agieed upon as a compensation.”
    When an indebtedness is admitted, the fixing the amount of the indebtedness becomes a mere matter of evidence, and it is competent to show the admissions of the party as to the amount of the indebtedness. The testimony of Kase and Rich was therefore clearly proper, and taken in connection with the testimony of Aultman and Jessie Collar, the new promise is fully established.
    In Woofers v. King, 54 Ill. 344, the court says: “Any language (made to appellee) clearly admitting the debt to be due and unpaid, and showing an intention to pay it, would take the case out of the statute. Such language would be considered an implied promise.” This principle is re-asserted in Carroll’s case, 69 Ill. 127; in Wachter’s case, 80 Ill. 47, and in Kallenbach’s case, 100 Ill. 427.
   Phillips, J.

Appellee filed her claim against the estate of William McClintock in the County Court of St. Clair County, on May 3, 1886, claiming for sixteen years’ service, at $240 per annum. On April 30, 1887, an amended claim was filed for sixteen years’ service, at $312.50 per annum, and for a sum acknowledged to be due to Nancy Collar by William McClintock in his lifetime, in a certain will executed by him, of $5,000.

On a trial before a jury, in the County Court of St. Clair County, a verdict was rendered for $2,250, on which judgment was entered.

An appeal was taken to the Circuit Court of St. Clair County by the appellant, and a trial had in that court, before a jury, when a verdict wasyendered for'$5,000, together with two special findings.

A motion for a new trial by appellant was overruled, and a judgment entered on the general verdict for the claimant. By appeal the record is brought to this court.

The facts as shown by that record are, that about 1846 Nancy Stout, then between fifteen and sixteen years of age, having recently lost her father by death, made her home at the house of William McClintoek, whose wife was her aunt, sister to her mother. Nancy Stout continued to reside with the family of William McClintoek about sixteen years, until her marriage. During the time of her residence there Mrs. McClintoek, her aunt, was in feeble health, and the management of the household was largely under her control, and most of the housework was done by her, although during a poition of the time a servant was hired. The evidence show's that during this whole time Nancy Stout, since Napcy Collar, the appellee, was treated as a member of the McClintoek family, and quite the same as if she was a daughter. She made visits at her pleasure, using the horse and buggy of the family, was well dressed, had pin money, and went into general society in the neighborhood. Her clothing was furnished, or the money to buy it, by McClintoek, who, with his wife, wras childless. That appellee w'as treated as a daughter by the McClintocks, was admitted by her counsel on the trial. On the other hand, the evidence also discloses that she well returned the kindness shown her, in her care and attention to the comfort of her aunt and uncle. In 1876 Mrs. McClintoek died . and appellee was presented by William McClintoek with §200 or §225, which had belonged to his wife. About that time, also, appellee, for a year or two, together with her husband, occupied a farm belonging to McClintoek, for which no rent was ever paid or demanded of her or her husband. In 1875 a conveyance of premises, estimated of the value of $1,000 to $1,800, was made for a consideration of $1 and natural love and affection by McClintoek to appellee, and to the issue of her body then born and to be born, in equal parts.

The special findings by the jury were, 1, that Nancy Stout, now Nancy Collar, was treated by William McClintoek as a member of his family, while she lived there; and 2, that Nancy Stout, now Nancy Collar, did live in the family of William McClintoek, as a member of his family, during the whole time she lived at his house. These findings in the special verdicts of the jury were clearly warranted hy the evidence; and there is no evidence in this record whatever of a relation of master and servant existing between the parties by express contract, at the time or before the services were rendered.

William McClintoclc died February 28, 1886, and appellant was appointed administrator of the estate.

This claim for the recovery of the value of appellee’s services must rest on a contract, either express or implied. The rule is well established, that where voluntary services are rendered by those sustaining near family relations, as where a child remains with a parent after arriving at majority, the presumption is that the parties do not contemplate payment or receipt of wages. Meyer v. Temrne, 72 Ill. 574; Mowbry et al. v. Mowbry et al. 64 Ill. 383; Maloney et al. v. Scanlon, 53 Ill. 122; Broughton v. Stuart, 59 Ill. 440; Byers v. Thompson, 66 Ill. 421; Dunlap v. Allen, 90 Ill. 108 ; Cooper v. Cooper, 12 Ill. App. 478; Miller v. Miller, 16 Ill. 296.

This rule has also been held to apply to a claim made by a son-in-law for the support of the wife’s parents; and it was further held, that an express contract must be shown in such a case, before a recovery could be had. Faloon v. McIntyre et al., 118 Ill. 292 ; to the same effect is Woolsey v. White, 7 Ill. App. 277; also Fruitt, Adm’r, v. Anderson, 12 Ill. App. 421.

In the findings by the jury, in their special verdicts, the relation existing between the parties was found ; and we hold that the rule must be held to apply to cases where a person becomes and is treated as a member of a family, during a long term of years, in the entire absence of evidence showing the existence of the relation of master and servant. This view is supported by Woolsey v. White, and Fruitt, Adm’r, v. Anderson, and by Long v. Long, supra.

In the case before us there can be no presumption, from the evidence, that the parties contemplated the payment or receipt of wages; that is, no contract can be implied. And since, under the more recent authorities in this State, the law implies no contract from facts like these, to recover, the evidence must show an express contract. Faloon v. McIntyre and Long v. Long, supra. .

The statute of limitations was pleaded by appellant, and to remove the bar of that statute the appellee called as a witness Spencer Ease, who testified that McClintock called upon him to write a will, and, among other instructions given, was this: “I want to give Nancy Collar $5,000, in lieu of any claim of whatever kind on our family, for her kindness to our family.” This is stated to have occurred in 1881 or 1883, but must have been earlier, since the witness said that he and John H inch-cliff e witnessed the will, while the evidence shows that Ilinchcliffe died February, 1878. James P. Bich testified that McClintock, in two conversations with himself, one in 1882 and another in 1884, speaking of a proposed disposition of his property, said “he intended Mrs. Collar should have $5,000.” At one time he brought a paper and made inquiries for a vault in which to deposit it. Jefferson Aultman testifies that McClintock said to him: “Mrs. Collar had always waited upon him a good deal, and he in ten led to see that she was well paid.”

To all the testimony of these three witnesses appellant objected at the time; the objections being overruled, error is assigned on account of such rulings.

On the other hand, counsel for appellee insists the evidence to be admissible, as in the nature of admissions by McClintock of a sum due and owing'; and on the authority of Freeman v. Freeman, 65 Ill. 106, and Maloney et al. v. Scanlon, 53 Ill. 122, we hold the testimony of Ease and Bich admissible. But we do not find the testimony of Aultman to be admissible for any purpose. We, however, hold none of this evidence sufficient to remove the bar of the statute, the statements being made in each instance to a stranger. Wachter v. Albee, Adm'r, 80 Ill. 47; McGrew et al., Executors, v. Forsyth, 80 Ill. 596; Carroll et al. v. Forsyth, 69 Ill. 127.

Jessie Collar, a daughter of appellee, testifies that; about two weeks before his death, William McClintock was at her mother’s house and said to appellee: “ Well, I wish I could do now as I could a few years ago.” And mother says, “ Why?” “Well,” he says, “I would make you a deed to more land than I have given you; but,” says he, “you are well provided for anyhow. Ton will have plenty to keep yon in your old days; I have provided well for you.” He did not say how much or anything of the kind. He says, “you are the only one that has ever done'anything for me.” And he says, “Aunt always intended that yon should have the property that her money bought, or the money.” Counsel for appellee then asked: “Did he say anything about compensating her for the work she had done?”

To this question counsel for appellant objected and the objection was overruled, which ruling is assigned as error; but we see no objection except to the form of the question, which was n >t made a ground of objection. The witness then answered: “He said he thought, as he never had given her to amount to anything, he ought to pay her for it, for what work she had done, staying there so long.”

Ho proof, however, having been shown of any express contract made at the time of, or prior to the rendition of the service, the testimony of the last witness must also be held insufficient to establish any such contract originally, if such a contract had ever been made; for it can not be held to be an admission of a prior contract existing, and if admitted as evidence of a new promise, still it would fail to create or prove an express contract, wherefore as a new promise it would be without consideration and not binding.

But, can it be said that from the entire evidence of the witness, Jessie Collar, a new promise is shown? Here was McClintock expressing a regret at his inability to do as much as he once had been able to do, at the same time declaring, however, that he had provided well for Mrs. Collar; that his wife had always intended the property her own money bought, or the money itself should go to her niece; he thought he never had given her anything to amount to anything, while he thought he ought to pay her for the work she had done, staying there so long. There is nothing in any of that conversation which can be understood as referring to a previously existing contract, by which an indebtedness co.nld be held to exist, and a new promise to pay it. On the contrary this whole testimony only enforces the conclusion that this is a case where a childless old man, appreciating former kindness from one who, by long residence and association, had come to occupy the place of a daughter, in assurance of that appreciation, and in recognition of it, declared that he had, as lie thought, provided well for her support in her old age, and thereby endeavored to requite her for lier kindness. We hold, then, that there is not sufficient evidence in the record to remove the bar of the statute. And to hold that expressions of kindness, like those testified to here, either create a liability or revive one not otherwise proven, would engender in the minds of parents and children such distrust and suspicion as would practically destroy the confidence and affection which ought to exist in that relation. The judgment, therefore, is reversed and the cause remanded.

Reversed cmd remanded.


author: Reeves, J.

text:
    Nathaniel Behymer v. Frances Odell.

      Real Property—Penalty for Cutting Trees on Lands of Another—Title —Possession—Practice—L cidence.

    1. In an action brought to recover (he statutory penalty for cutting trees upon the land of another, the plaintiff, to recover, must show a title in fee.
    2. A deed granting real property, subject to the right on the part of the grantor to cut and remove therefrom during his lifetime, timber for his own nse, conveys a fee.
    3. Where the statute provides for the recovery of a certain sum per tree the judgment must be for some multiple thereof.
    4. This court will not go behind the record, showing a motion in arrest of judgment, upon grounds which affidavits filed tend to show were never brought to (he atteniion of the trial court.

      [Opinion filed June 15, 1889.]
    Appeal from the County Court of Wayne County; the Hon. E. C. Kramer, Judge, presiding.
    Mr. R. P. Hanna, for appellant.
    Mr. J. R. Creighton, for appellee.
   Reeves, J.

This suit was brought by appellee to recover the statutory penalty for cutting trees upon her land. The primary question made is, that appellee did not prove that she was the owner in fee of the land upon which the trees were cut. The proof of title was a deed from William Shaeffer and wife to appellee, for eighty acres of land, with proper description, in which the grantors reserved the right to take any and all timber off of said land, without charge, they may need for their own use during their lives.” This was the only proof on this point. It is conceded in argument that the plaintiff, in this kind of proceeding, must show that he or she is the owner in fee of the land upon which the trees were cut. This rule is clearly announced in the following cases : Jarrett v. Vaughn, 2 Gilm. 138; Wright v. Bennett, 3 Scam. 258; Whiteside v. Divers, 4 Scam. 336.

It is contended that this deed did not convey a title in fee simple. It is well settled that when the estate is not limited tq life or years, and no remainder attaches, the title passed is a fee simple.

Applying this rule to the deed under consideration, it would seem clear that it passed the fee simple title in the land. The reservation in the deed simply excepted from the operation of the deed such of the timber growing on the land as the grantors might need for their own use during their lives. This did not affect the title to the land, which, under the deed, vested in fee simple in Mrs. Odell.

It is further contended that, conceding that this deed conveyed the fee, still, possession under the deed is necessary to make proof of title. It will suffice to say, in view of what follows, that .he proof on this point is not satisfactory. There is one error arising upon this record that will make it necessary to reverse the judgment. The amount demanded upon the summons issued by the justice of the peace was §58.SO. The proof showed eight white oak trees cut, and the verdict was for §64, and a judgment entered on the verdict. A remittitur was entered in this court of §7, leaving the amount of the judgment §57. The statute provides for a recovery of §8 per tree. The judgment should be for some multiple of eight. Fifty-seven is not a multiple of eight. A penalty given by the statute can not be split up. The recovery must be for the penalty and not for a part of it. Edwards v. Hill, 11 Ill. 24.

It is urged that, as this error in the amount of the judgment was not called specifically to the attention of the trial court, it can not avail in this court. The bill of exceptions contains a motion in arrest of judgment, which assigns as one ground of the motion that the verdict is. for'a larger amount than is claimed on the back of the summons issued by the justice of the peace. Affidavits were filed in this court tending to show that this ground of the motion was not brought to the attention of the court. A trial court has full power to protect itself, by requiring such motion to, be written out and filed, before passing upon it, and should exercise this power. Where this is not done we do not feel called upon to go behind the record and inquire as to what was done. It would be a dangerous practice to do so. It will be observed that the error for which we reverse the judgment is not that the amount of the judgment exceeds the amount claimed on the back of summons, but that the amount of the judgment, after the remittitur, is one which can not stand under the law as to the recovery for a statutory penalty.

The judgment of the County Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John W. Gammon and Asenath Gammon v. William C. Wright.

      Mortgages—Foreclosure—Note—Failure of Consideration—Partnership—Homestead and Dower—Evidence—Parties.

    1. Upon proceedings brought to foreclose a mortgage given to secure a note covering a certain portion of the purchase price of a fourth interest in a flouring mill, a conveyance of which was never made to the maker thereof, the contention being as to the existence of a partnership in the running of said mill, and whether the maker and payee were members thereof, this court holds as erroneous the decree of foreclosure of the trial court, the state of the pleadings forbidding the investigation of the question as to the existence or settlement of such alleged partnership.
    2. The collection of a note and mortgage, given in consideration of an agreement to deliver therefor a business interest, can not be enforced in the absence of such conveyance or an offer to make the same.
    3. It seems that the wife can not be deprived of her homestead in premises as to which she has joined in a mortgage, in consideration of a promise, which has not been performed, to make a conveyance of other property to her husband.
    [Opinion filed August 28, 1889.]
    In error to the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Messrs. Wood Bros, and S. F. Gilmore, for plaintiffs in error.
    Mr. William B. Wright, for defendant in error.
   Reeves, J.

Early in the year 18Sé one Hotz held a certificate of purchase, under a foreclosure sale, for the undivided three-fourths of a flouring mill property, at Effingham, Illinois. Defendant in error bought this certificate, and being desirous to associate with himself, in the ownership of the property, some one who was a practical miller, he made an agreement with plaintiff in error, John W. Gammon, to sell him a third interest in the certificate, which would cover one-fourth of the mill property, for the sum of $2,166.66, Gammon to pay $500 cash, give a note for $1.000, and secure it by a mortgage on his homestead, and the balance of the pureliase money was to be paid by his wages, as miller. The $500 cash was paid, and the one thousand dollar note given and secured by a mortgage on the homestead of the Gammons. Subsequently, the time of redemption having expired on the foreclosure sale, Wright received a deed from the master in chancery for three-fourths interest in the mill property, but made no conveyance of the one-fourth interest to Gammon. The mill was operated for two years and six months, and then shut down because it did not prove a financial success, and Wright took the exclusive possession of the property.

There is a dispute between Wright and Gammon as to how the' mill was operated. Gammon claims that he was not a partner in the running of the mill, but was to receive wages for his work in the mill as head miller. Wright claims that the mill was operated by himself, John W. Gammon and James Gammon, a son of John, as partners. After the mill was shut down Wright sold the mill for $5,500, he having before this bought the remaining fourth "interest in the property. This suit is to foreclose the $1,000 mortgage on the homestead of the Gammons. The bill is in the ordinary form, and contains no reference to the circumstances under which the mortgage was given, or what it was given for. Gammon and wife answered the bill, setting out in detail the facts as to the purchase by Gammon of one-fourth interest in the mill property from Wright, and the giving of note and mortgage in part payment of the purchase price, insisting that Gammon had paid in full the price, and that Wright had failed to convey to him one-fourth interest in the mill property, and had put it out of his power to do so by a sale and conveyance of the mill property to other parties, and so the consideration of the note had entirely failed.

Without any amendment of the bill the cause went to a hearing, and on the trial Wright, insisted that Gammon and his son, James, were partners with him in the running of the mill, and that upon a settlement of the partnership the share of the Gammons, of the losses, would more than absorb the $500 cash paid, the $1,000 note, and the amount due John W. Gammon for wages, and one-fourth of what the mill sold for. The Circuit Court so found and decreed a foreclosure of the mortgage. In the state of the pleadings it is quite clear that the case was not in condition to authorize the court to investigate the question of the existence or settlement of the alleged partnership, and for this reason alone the decree of the Circuit Court must be reversed. However, to expedite the final adjudication of the rights of the parties, we will briefly state our views of the law applicable to the state of facts disclosed by the record before us, without regard to the condition of the pleadings. The first conflict upon the facts of the case between the parties relates to the question, whether the Gammons were partners with Wright in the running of the mill. Wright says in substance: “ February 28th I sold Gammon one-fourth interest in the mill, and he told me at that time he and his son, James, bought together, and all the time during the running of the mill, from their talk, I supposed them both interested, both c’aiming an interest. They were to pay me $2,250 and have one-third of the profits in running the mill, provided we did not have to pay Little anything for the use of his fourth interest in the mill. He wa's a full partner in the loss or gains to the extent of the one-third interest. I was to have $75, John W. $80, and James $50 per month.”

John W. Gammon, on this point, says: “Wright told me if I would take one-fourth interest in the mill property he would buy it. I told him I had no money. He said I could have it for just what he paid, as I was a good miller and he wanted me there. I said if I had the money I would buy; that my son, James, had $500 which I could get. Wright said if I would give him a note for $1,000 and secure the same by a mortgage on my house he would take that. I said I wou’d do that, and he closed the trade with HtfCz; and I paid him $500 cash and gave him the $1,000 note and mortgage. I was to have it for one-third of $6,500. When the time of redemption on the Hotz certificate-expired he wras to get a deed and convey to me one-fourth interest in the mill property, I never stated to Wright that James was to have a part interest in the mill. There was never anything said to me about my receiving profits; I did not understand that I was to have any interest in the profits, nor was anything said about running the mill except this: Wright asked me how much money it would take to run the mill. I told him the former proprietors had $4,000 in working stock. He said he could not raise that much money, but could raise $3,000. I said $3,000 then would equal $1,000 at the time I referred to. Then he said, what wages do you want by the month % I said I had been getting $80 per month, and he agreed to give it. That was all that was said. Wright never mentioned to me wages for himself. He asked what he could hire “Jim ” for. I told him I thought for $50 per month.

James Gammon testified that he knew nothing about the contract between his father and Wright; that he paid $500 to Wright for his father, at his father’s request, on the mill. I worked in the mill but had no pecuniary interest, either in the mill property or in running the mill. Several witnesses testified to their understanding of the way the mill was run; that it was operated by Wright and the Gammons, and this understanding was based on the fact that the Gammons exhibited great interest in the success of the milling business, hired hands to work in the mill, and were even consulted in matters relating to the operation of the mill. The Gammons claim that all they did in the running of the mill was what head millers usually do, where the proprietor is not a practical miller.

It will be seen that the question of partnership in the running of the mill is in great doubt, to say the least.. In view of the fact that the burden of proving a partnership falls upon Wright, we do not feel, under the testimony before us, that it is necessary to discuss the rights of the parties upon the basis that there existed a partnership in the running of the mill between the Gammons and Wright. If there was no partnership then itmnst be conceded that John W. Gammon was entitled to a deed for one-fourth interest in the mill property. It is shown that there was due him on wages $653.65, so that, counting the $500 cash, the one thousand dollar note and the balance due on wages, he had paid in full tlie price he agreed to pay for a fourth interest in the mill. As Wright had put it out of his power to convey to Gammon any interest in the mill property, the consideration of the one thousand dollar note, in this view of the case, has entirely failed.

But if it should be conceded that after the purchase by Gammon of the one-fourth interest in the mill property, he and his son and Wright entered into a partnership agreement to run the mill, and that, upon a settlement of that partnership there would be due to Wright a large sum, would this fact justify Wright in taking exclusive possession of the entire mill property, and in selling and conveying the three-fourths interest, which he owned, and also the one-fourth interest which he had sold and agreed to convey to Gammon, and in refusing to convey to Gammon, and still insisting upon collecting the $1,000 note and mortgage, which was given as part of the purchase price of the one-fourth interest in the mill? Is it not important that had the fact of such partnership existed, and it resulted as alleged, Wright might have filed and maintained, so far as John W. Gammon’s rights were involved, a bill to settle the partnership, and subjected the interest of Gammon in the mill property to the payment of any balance due from him in such settlement? In that case Wright would have recognized the right of Gammon to the inte'rest in the mill which he had sold him, and sought the interposition of the court to subject it to the payment of Gammon’s share of the losses. This recognition of the right and title of Gammon in the mill property, in part payment of the price of which the note and mortgage in controversy were given, would at least give to Wright a color of right to enforce the collection of the note as against John W. Gammon; but in the state of the case shown by the testimony of Wright himself, it can not be fairly said that, having failed to comply with his contract by which he secured this note and mortgage, that had no other consideration than this contract of sale of one-fourth of the mill property, Wright should be entitled to collect the note and mortgage.

There is still another view of the case, which is this: Could this homestead of Mrs. Gammon be taken from her to pay a partnership debt of Gammon, when the only consideration that ever moved from Wright to induce her to join in a mortgage of her homestead, was Wright’s agreement to convey to her husband a one-fourth interest in the mill, which it is conceded Wright never did or offered to do? Whatever the talk, arrangement or understanding between Gammon and Wright, there is no pretense that anything was ever said to Mrs. Gammon except that the mortgage was executed in part payment of the price of one-fourth interest in-the mill property. She certainly understood, when she consented to encumber her homestead, that it was a payment to that extent on an interest in the mill property. That was the only consideration that supported the note, to secure which she mortgaged her homestead. Whatever may be true under all that is claimed by defendant in error as to the rights of John W. Gammon, it would seem indisputable that, before the homestead of Mrs. Gammon could be taken from her, defendant in error should have offered to convey a one-fonrtli interest in the mill property to John W. Gammon,- conditioned upon payment of the balance of the purchase money if it had not all been paid. Ho such offer was made by Wright. Whether such a conveyance to her husband would have been of any pecuniary advantage to Mrs. Gammon is not material, and yet, had it been made, she would h ive acquired an inchoate right of dower in the premises so conveyed. If, as we have seen,' the only consideration of the note and mortgage was the agreement of. Wright to convey to John W. Gammon an interest in the mill property, which he never did and never offered to do, we do not see upon what equitable principle he can expect to enforce the collection of the note and mortgage.

The decree of the Circuit Court is reversed and the cause remanded, with direction that leave be granted to the complainant to amend his bill, if he chooses so to do, and make new parties defendant.

Reversed and remanded, with directions.


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    Trustees of Schools v. Lemuel Southard et al.

      Negotiable Instruments—Note—School Funds—Principal and Surety —Request to Sue—Sec. 58, Chap. 122, R. S.—Agency—Costs.

    1. A notice by one of several co-sureties on a note on his own account to the payee thereof to sue, will not, in case of a failure to do so within a reasonable time, discharge the rest.
    2. It may be shown, in a suit brought upon a promissory note by the payee, that persons signed the same as sureties, although it does not so appear on the face of the note, and no notice has been given.
    3. Under the statute two or more sureties are necessary upon the loan of school funds, and where there are several signers, the presumption arises that the treasurer of the board did his duty and acted in conformity with the law, and that at least two of such signers are sureties.
    4. A provision in a note that no extension of time of payment, with or without the knowledge of the sureties thereon, should release them or either of them, is not a perpetual waiver of their statutory right to demand an effort by the payee to collect.
    5. Notice to sue, by sureties upon a note made to the trustees and given upon a loan of school funds, directed to the treasurer of the board of trustees alone, is insufficient. It should also be given to the board of trustees.
    [Opinion filed August 28, 1889.]
    Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Happy & Travous, for appellants.
    The alleged notice to sue should have been directed to, and served upon the trustees. The treasurer was not the legal holder or “creditor.” Gross’ Statutes of Ill., 1869 (3d. Ed.), page 683; Starr & C. Ill. Stats., Chap. 132, Sec. 1; Bartlett v. Cunningham, 85 Ill. 22; Wade on Notice, Secs. 1334, 1335 and 1342; The C. & A. R. R. Co. v. Smith, 78 Ill. 96; Brandt on Suretyship and Guaranty, Sec. 505; Adams v. Roane, 7 Ark. 360.
    The notice was clearly insufficient under the statute. To avail the surety the notice should be a positive demand to bring suit. The statute is in derogation of the common law, and a party setting up a discharge thereunder must show strict compliance with its terms. Brandt on Suretyship and Guaranty, Sec 504; Baker v. Kellogg, 29 Ohio St. 663; Parrish v. Gray, 1 Humph. 88; Kaufman v. Wilson, 29 Ind. 504; Bates v. State Bank, 7 Ark. 394; Moore v. Peterson, 64 Iowa, 423.
    Even if the notice were sufficient, under the statute, to release Fahnestock, it would not have this effect as to Southard. The contract was several as well as joint, and a release of one surety by operation of law would not release the other. The People v. White, 11 Ill. 341; Wilson v. Tebbetts, 21 Am. Eep. 165; Routon’s Adm’rs v. Lacy, 17 Mo. 399.
    The third replication to the separate plea of defendant Fahnestock presented a material issue, and the demurrer to it should not have been sustained. Goodman v. Litaker, 37 Am. Rep. 602, and authorities there cited.
    It was error to adjudge costs against plaintiffs. Cassady v. Trustees of Schools, 94 Ill. 589; Trustees of Schools v. Stokes, 3 Ill. App. 267.
    Messrs. Krome & Hadley, for appellees.
    ' If notice were required to be given to the trustees, upon which one should it be served? If, upon the trustees, then they would be obliged to notify the treasurer, as he is the one required to commence suit. Without the concurrence of the .treasurer, who is the custodian of the note, no suit could be maintained. Why require a notice to three persons, who, in turn, must notify a fourth, to make the notice effectual, instead of notifying, in the first instance, the person who has the power to sue ?
    When a bank is the creditor, a notice given to the cashier has been held sufficient. The Bank of St. Mary’s v. Mumford, 6 Ga. 44.
    The notice was a substantial compliance with the statute. It was a notice in writing, signed by the surety, demanding the holder to collect the note within thirty days. This was in July, 1882. Instead of collecting the note the holder waits until nearly fifteen years have elapsed since the maturity of the note before the institution of suit.
    A release or discharge of one surety discharges' all. Ex parte Giffud, 6 Ves. 805; Towns v. Riddle, 2 A'a. 694; Stockton v. Stockton, 40 Ind. 225.
    “The doctrine has long been considered as settled, that a release as to one of two or more joint, or joint and several obligors or promisors, is a release of all.” Benjamin v. McConnell, 4 Gilm. 544, and authorities there cited.
   Phillips, J.

A note was executed on April 1, 1872, payable to plaintiffs, the appellants, by W. W. Luttrell as principal, and the appellees as sureties. Suit was brought on the note," to which the defendants pleaded the general issue, and a special plea by James P. Fahnestock, which averred that Luttrell was principal debtor, and that Fahnestock was surety, and that plaintiff had notice, and after the note became due, apprehending that Luttrell was liable to bee une insolvent, Fahnestock, by notice in writing to the school treasurer, required plaintiff to sue, and avers that plaintiff did not, within areasonable time, bring suit, by reason of which defendant Fahnestock was discharged. There was also a special plea by appellee Southard, which averred the suretyship, the notice by Fahnestock to sue, and that the failure of appellant to sue forfeited its right to" demand of him said sum.

A demurrer was interposed to the special pleas, which was overruled, and plaintiff, electing to stand by the demurrer to the plea of Southard, judgment was entered on the plea for Southard.

Replications were filed to the plea of Fahnestock, first, traversing the allegation of the notice in writing to sue; second, averring that it was agreed by the defendants, by the terms of the note, that no extension of time of payment, with or without their knowledge, should release them or either of them; and third, denying notice that Fahnestock was surety. A demurrer was sustained to the second and third replications, and on trial before the court, without a jury, a verdict was rendered for defendant and costs adjudged against plaintiff. The notice to sue was shown to have been served on the treasurer, as averred in the plea, and this, with the note, substantially constituted the evidence in the cause. The liability on the note was joint and several. It was error to overrule the demurrer to the plea of Southard. Where there are two or more sureties on a note, and the statute provides for a discharge from liability, by reason of notice to collect, and failure of payee to sue within a reasonab'e time, a notice to sue, given by one surety on his own behalf, will not operate to discharge another surety who gives or joins in no notice. Wilson v. Tebbetts, 29 Ark. 579; Ronton’s Adm’rs v. Lacy, 17 Mo. 399; Letcher, Adm’r, v. Yantes, 3 Dana, 160; Klingensmith v. Klingensmith’s Ex’r, 31 Penn. St. 460; Barrow v. Shields, 13 La. An. 57; Alford v. Baxter, 36 Vt. 158.

The demurrer was properly sustained to the second and third replications. The statute required two or more sureties for school funds loaned. The plaintiff was the original holder of the note, and whether it was made while particular persons, or their predecessors in office, were the board of trustees, the presumption must be held that the treasurer did his duty and required two sureties. It may be shown, where the suit is by the payee in the note, that persons signed the note as sureties, whether it so appears on the face of the note or not. And whether notice of the fact of suretyship existed or not, can not affect the question. It ne id not necessarily appear on the face of the note. Ward v. Stout et al., 32 Ill. 399; Kennedy et al. v. Evans, 31 Ill. 258; Flynn v. Mudd, et al., 27 Ill. 323.

The facts alleged in the third replication were not material. The second replication pleaded a provision of the note which was, and no extension of the time of payment with or without our knowledge, by the receipt of interest or otherwise, shall release us, or either of us, from the obligation of payment.” That agreement can not be held to be a perpetual waiver of a right given by the statute to the defendants, to demand an effort at collection by the payee for the protection of the surety. To award a judgment for costs against the plaintiff was error. Cassaday v. Trustees of Schools, 94 Ill. 589; Trustees of Schools v. Stokes, 3 Ill. App. 267.

Is a notice to the' treasurer sufficient to discharge a surety on a note made to the trustees of schools, or must the notice be given to the trustees also % This is a question of first impressions. By Sec. 58 of Chap. 122, R. S., all notes are directed to be taken to the trustees of schools for funds loaned. The treasurer is appointed by the board of trustees, and it is made his duty to loan school moneys, to collect, to safely keep funds, and discharge other duties prescribed by the statute. While an officer appointed by the board of trustees, his duties are prescribed by the statute and no power can authorize him to neglect or violate those duties. There is a certain supervisory control exercised by the board of trustees in pursuance of the statute. The treasurer must account semi-annually to the trustees, and lay before them all books, notes, bonds, mortgages and all other evidence of indebtedness belonging to the township. The board of trustees may require additional security for the payment of money loaned, “ and at each semiannual meeting, and at such other meetings as the trustees may deem proper, the board shall examine all books, notes, mortgages, securities, papers, moneys and effects of the corporation, and the accounts and vouchers of the treasurer, and shall make such order thereon for their security, preservation, collection, correction of errors if any, and for their proper management, as may seem to said board necessary.” These duties of the board of trustees, as prescribed by the statute, are designed to protect and guard not only a pubhc fund, but in addition thereto, a duty prescribed by statute as the duty of the treasurer with reference to that fund; the trustees are given a supervisory power and right and a duty in reference to the treasurer’s management of that fund. The statute which prescribes these duties and rights is a public law of which all persons must take notice. Having notice of - the duties not only of the treasurer,'but of the board of trustees, with reference to the preservation, management and collection of that fund, may- one, dealing with the treasurer with reference to that fund, and becoming a surety on a note to the trustees for money loaned by the treasurer, give notice to the treasurer alone to proceed to collect such note, and, in the event of his failure to do so within a reasonable time, claim that he is discharged from further liability on the note? He is obliged to take notice of the fact that the board may direct the collection of the note, and with that knowledge fairness and justice would require that if the surety in good faith desires the note collected, he should give notice to each agent of the public who has the right or duty under the law to direct the collection of the note, the treasurer and the board of trustees, and not discharge himself from liability by a notice to one of those agents.

Nor can the treasurer be regarded as the agent of the board of trustees; they are each officers whose duties are prescribed by law, and to act within the statutory directions, they each owe duties and are under responsibilities to the same fund, and are each designed under the law to protect and preserve that fund—the one a check on the other. Neither is the agent of the other. The notice to the treasurer alone to sue and collect the note was not sufficient to discharge the defendant Fahnestock from liability. The judgment is reversed and the cause remanded.

Reversed and remanded.


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    The Consolidated Coal Company of St. Louis v. Daniel Schaefer.

      Forcible Detainer—Coal. Lands—Lease—Conditions—Forfeiture—Notice to Quit and Deliver up—Sec. 10, Chap. 80, E. S.—Instructions.

      1. ' A notice to a lessee to quit and deliver up possession of a tract of surface land devoted to a particular use, described by metes and bounds, can not be held to vary from a lease which conveys the right to mine coal in certain real estate, and provides that a definite portion of the surface thereof, without describing it, shall be used for the purpose in question, location thereof being fixed upon such land by its application to such use.
    2. A condition in a lease of coal lands providing that the lessees shall work the mine in a “ sound, safe and workmanlike manner, so as not to ruin the works,” is violated by an entire failure to work the mine during a long period of time, and permitting it to become filled with water without any effort to remove the same.
    3. A decree prohibiting a forfeiture because of the failure of a lessee to comply with the terms of fhe lease, has no application to a subsequent purchaser of the leasehold interest, or his assigns, who likewise fails to carry out the same.
    4. No demand need be made by a lessor that the lessee or those holding under him shall comply with the conditions of the lease.
    5. A return that there was “ no one in actual possession,” and the fact that, ihe notice was posted on the premises being shown by affidavit, constitutes compliance with Sec. 10, Chap. 80, R. S.
    6. The return in such case is properly admissible, and is not overcome by an admission on the trial of possession by defendant.
    7. All causes for new trial not set forth in a written motion therefor, will be considered as waived.
    [Opinion filed August 28, 1889.]
    Appeal from the Circuit Court of St. Clair County; Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    Mr. W. C. Kueffner, for appellee.
   Phillips, J.

On April 2, 1885, the appellee leased to Newberry & Harnett all the coal in certain lands in the lease described, and three acres of surface for the erection of works, sinking shaft and for buildings, -which three acres was not described in the lease by motes and bounds, but was to be a part of over one hundred acres in the lease described. The lease was for a term of twenty-five years. The lessees were to commence work on the shaft within three months and continue the work; were to work the mine in a sound, safe and workmanlike manner, so as not to ruin the works, and leave necessary pillars, and prop up the works securely. The lessees sunk the shaft and did some little work in the mine, when they became insolvent and quit work, and the mine became filled with water. At .the May term, 1886, of the Circuit Court of St. Clair County, a bill was filed to which Newberry & Harnett, their creditors, and appellee were parties, and a decree entered thereon by which the right of appellee to declare a forfeiture for anything theretofore occurring was prohibited, and under that decree a sale was made of the lessee’s interest, and Joseph Taylor was the purchaser for §3,385, and he sold to appellant, on the 6th day of July, 1886, who has been in possession since that time, and no work in the mine has been done, and the appellant has removed a part of the works and machinery at the shaft. A notice to quit and deliver up possession within ten days was given, for default in working mine in sound, safe and workmanlike manner, in paying royalty, and continuing the work of sinking the shaft for mining coal. The notice described all the lands in the lease described, and the three acres of land where the shaft was sunk, was, in the notice, described by metes and bounds, as was done in the complaint.

The admission of the notice- in evidence was objected to, because it differs in description from land in the lease. The evidence shows it was a part of the land in the lease described, and the lease authorized the use of three acres of surface for sinking shaft, and the erection of buildings. When the lessees took possession of the three acres of surface, and erected buildings and sank the shaft, that fixed t-lie location of the three acres, and the evidence shows them to be a part of the leased land, and as in the lease described and fixed. It was not error to allow the notice in evidence.

The evidence shows that the mine -filled with water, and permitted to so remain, will cause injury to the mine; that the injury increases the longer it is permitted to so remain. The condition of the lease, by which the lessees “were to work the mine in a sound, safe un-1 workmanlike manner, so as not to ruin the works, and leave necessary pillars, and prop up works securely,” was violated by an entire failure to work the mine during along period of time, and permitting the same to become filled with water, with no effort to remove the same therefrom. It was not preventing or attempting to prevent an injury to the works that was a present continuing injury, that increased the longer it so remained. It was not working the mine “ in a sound, safe and workmanlike manner so as not to ruin the works,” to permit them to be destroyed so far as their use was concerned without the great labor and expense of pumping out the mine. Permitting the mine to be unworked and filled with water was “ ruining the works ” within the meaning of that condition of the lease.

Appellant’s claim that the decree entered in the case of the original lessees, by which the plaintiff’s right of forfeiture was waived and prohibited, should prevent a forfeiture here, can not be sustained. That decree only went to the effect of preventing a forfeiture for what had then occurred. It did not prevent a forfeiture by reason of a failure on the part of the purchaser, or his assigns, in complying with the terms of the lease.

The objection that no demand was made for a performance of the conditions of the lease, can not be considered as of any weight. The lease was the measure of the duty as between appellant and appellee, and the compliance with that duty is not to depend on the demand of the lessor. It was not necessary to show a demand that appellant should comply with the terms of the lease.

The objection made to the service of notice to quit, and demand for possession, that the actual occupancy must be presumed, and must overcome the affidavit of the service by posting notices, by reason of the admission of record of possession, is not well taken. The return of service that “ there was no one in actual possession of the premises described in the notice,” and that notice was posted on the premises, being shown by affidavit, was a compliance with Sec. 10, Ch. 80, E. S. It was not error to admit the return of service in evidence, nor does the admission of possession by appellant on the trial overcome the return.

' The error assigned for modifying the fourth instruction of appellant was not set forth in the motion for new trial ; it was not objected to in the trial court. It can not for the first time be raised here. “If a party files certain points in writing, specifying the grounds of his motion, he will of course be confined in the Appellate Court to the reasons specified in the court below, and will be held to have waived all causes for a new trial not set forth in his written grounds.” O. O. & F. R V. R. R. Co. v. McMath, 91 Ill. 104; Miller v. Ridgley, 19 Ill. App. 306; Clause v. Bullock Printing Press Co., 20 Ill. App. 113. We find no cause from this record to disturb this judgment. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Mart L. Ditch et al. v. The People, for use, etc.

      Administration—Action on Bond—Pleading—Practice.

    1. It is improper to proceed to trial and judgment on the issues of fact in a given case, without disposing of a question of law raised by demurrer to plea filed.
    2. It is error to enter a default and judgment against a defendant who has neither been served nor entered his appearance.
    [Opinion filed August 28, 1889.]
    Appeal from the Circuit Court of Monroe County; the Hon. B. H. Canby, Judge, presiding.
    Mr. William Winkelmann and Charles Morrison, for appellants.
    Mr. E. P. Slate, for appellees.
   Phillips, J.

This is an action brought on administrator’s bond. Six pleas were filed; issue joined on the first, second and sixth and demurrer to third, fourth and fifth. The demurrer to the third and-fourth pleas was sustained, but as to the fifth the demurrer stands without being disposed of in any way.

The fifth plea is a plea of payment, and is to the whole declaration. The c mrt proceeded to trial and judgment on the issues of fact, without disposing of the question of law raised by that demurrer to the fifth plea. In this there was error. Merriweather v. Gregory, 2 Scam. 50; Nye v. Wright, Ibid. 222; Bradshaw v. McKenny, 4 Scam. 54; Richeson v. Ryan, 15 Ill. 13.

It further appears that a default and judgment was entered against a defendant not served, and who entered no appearance. This was error. It is not necessary to discuss the question whether the parties appealing may raise this question, as the errors which they assign that are well taken must reverse the judgment. We do not deem it necessary to discuss other questions presented by the assignment of errors. _ The judgment is reversed and the cause remanded.

Reversed and remanded.