text:
    Peoria & Pekin Union Ry. Co. v. The United States Rolling Stock Co. et al.

      Carriers — -Destruction of Leased Cars hy'Fire — Action against Carrier —Parties—Statute of Limitations.

    In an action by a rolling stock company against a railroad company engaged in the general business of switching cars, to recover the value of several leased cars which were destroyed in the same conflagration, said cars having been switched at different dates, it is held: That if the plaintiff has a cause of action, it has a separate one for each car; that the fact that the declaration was amended after the cause of action was barred as to one of the cars, so as to include such car and to make appellees parties plaintiff, did not have the effect to revive the claim as to said car; that the owner of the cars was a proper party to bring the suit; and that such owner was in no way bound by contracts existing between the defendant and its lessees.
    [Opinion filed July 20, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Suit in assumpsit was instituted at the October term, A. D. 1884, in an action on the case by the Chicago, Saint Louis and Western E. E. Co., for the use of the appellees, to recover the value of three of the four cars which form the basis of the present case.
    At the February term, 1887, by leave of court before that time granted, an amended declaration was filed, in which the Chicago, Pekin and Southwestern E. E. Co. was made plaintiff, for the use of the appellees, declaring for the value of all four cars, and at the same term another amended .declaration was filed by leave of court, in which the appellees, .for whose use the case had been originally brought, were made plaintiffs.
    A fair statement of the principal facts involved in the case as presented to the trial court, can be gathered from the stipulation submitted by both parties, and material part of the lease referred to in the fourth clause of the stipulation as “Exhibit 1.” The stipulation is as follows, viz.:
    “ In order to expedite the trial of this cause, the attorneys for the respective parties thereto have this day agreed upon the following for submission to the court, viz.:
    “1. That the plaintiffs were duly incorporated and were the owners of the cars, the value of which is sought to be recovered in this suit, but they were not interested in thecontefnts, taken to the sugar refinery hereinafter mentioned.
    “ 2. That the Chicago, Pekin and Southwestern Eailwav Company was a corporation having a railway from Chicago to Pekin in this State, but at the time of the destruction by fire of said cars, as hereinafter mentioned, and for some time prior thereto and thereafter, its property was in the hands of one S. B. Eeed, receiver of said company, by order of the United States Court at Chicago, who was managing and operating the property of said company, and was also using the tracks of said defendant between the cities of Peoria and Pekin, and also its tracks at Peoria, under a lease hereinafter mentioned, and that said Eeed remained in the management and operation of the property of said Chicago, Pekin and Southwestern Eailwav Company, and' of the privileges under said lease, until on or about the 5th day of January A. D. 1883.

      £‘ 3. The defendant is, and has been, a railway corporation since the first day of October, 1880, with tracks running on both sides of the Illinois river between the cities of Peoria and Pekin, Illinois, and is also engaged in a large switching and terminal business in both said cities, having what are known as railroad yards for that purpose in Peoria, and that the Peoria Sugar Refinery was located alongside of two of its tracks in Peoria, which were used for switching cars to and from said refinery.
    “ 4. That said Reed, as receiver of the Chicago, Pekin and Southwestern Ry. Co., was a lessee of the defendant, the Peoria and Pekin Union Ry. Co., under the terms and conditions of a lease similar to the one herein filed, marked £ Exhibit 1,’ and made a part of this stipulation.
    “5. That said receiver, under said lease or contract, with his own men and motive power, brought the cars (afterward destroyed by fire, viz., Nos. 4145, 3829, 3839, 3043, but then in his possession,) from the city of Pekin, Illinois, to the city of Peoria, upon the tracks of defendant, in September and October, 1881, and placed them on other tracks or switches of said defendant in the city of Peoria; that afterward while the cars were on the tracks or switches as left by said receiver, Ira W. Gantt, the agent of said receiver, acting under the terms of said loase or contract, directed the defendant to switch said cars to said sugar refinery for the purpose of being unloaded, car No. 3043 being ordered so switched on Sept cm-her 12, 1881, car No. 4145 on September 27, 1881, car No. 3829 on October 10, 1881, and car No. 3819 on October 20, 1881; that said defendant by reason of such direction, and as provided in said lease or contract, and acting under it, switched said cars to said sugar refinery and left them standing upon a track at said refinery owned by said defendant, but embraced in said lease or contract with said receiver; that about noon of -October 27, 1881, said sugar refinery and said cars were destroyed by fire, which was not in any way caused by defendant, or through its fault or negligence; that in handling said cars the said receiver and his agents, and the said defendant, acted under, and because of said lease or contract.

      “ 6. That David W. Rider, whose deposition is herewith to be read on trial, on behalf of defendant, was, at the time of said fire, the superintendent of the Peoria and Pekin Union Ry. Co.
    “ 7. That the deposition of Ira W. Gantt, herewith filed, is to be read on the trial on behalf of plaintiff.
    “8. That the defendant does not, by this stipulation, waive any of its pleas filed in this cause May 4, 1887.
    “ 9. If the court finds that the defendant is liable to the plaintiffs for the loss of said four cars, then .it is further stipulated as a basis for their value, that the cars were worth as follows, viz.: No. 4145, $450; No. 3829, $485.98; No. 4839, §460; No. 3043, §475.”
    The clauses in the lease are as follows:
    “And this indenture further witnesseth, that said party of the first part hath let, leased and demised, and by these presents doth let, lease and demise, unto the said party of the second, third, fourth and fifth parts respectively, their successors and assigns, all and singular its said main tracks, side tracks, switches, turnouts, connecting track, round-houses, freight houses, passenger depots and all its terminal facilities ]n the said cities of Peoria and Pekin, whether the said described premises are now owned or held by said first party or shall be hereafter acquired.
    “ To have and to hold, under the terms, provisions, stipulations, limitations and conditions, for tho use and enjoyment thereof herein contained, unto the said parties of the second, third, fourth and fifth parts respectively, and their successors and' assigns, severally and equally, as tenants in common, for and during the full term and period of fifty years from and after the--day of-A. D. 1881, and renewable from time to time for like periods forever, on the same terms, provisions, stipulations, limitations and conditions, subject to the earlier determination of this lease as hereinafter provided, but .not exclusively however, the-said party of the first part hereby expressly reserving unto itself the full right and power to make .¡contracts for the use and enjoyment of said demised premises by other .railroad companies doing business at the said city of Peoria or desiring to do so; the said lessees to take, use, occupy and enjoy said demised premises in the manner following and not otherwise, that is to say:

      “First. — The said lessees shall severally have the right to the common use and enjoyment of all the main tracks, aforesaid, of the said cities of Pekin and Peoria, and the necessary side tracks for passing trains, in running their trains of every class over the same or any part thereof, with their own engines and employes, between Pekin and Peoria, and for the purpose of delivering and receiving their trains and cars to and from the party of the first part, and to and from the said union passenger depot.
    “ Second. — The said lessees shall severally have the right to use the said round-house or houses, together with the necessary approaches thereto, for the care and shelter of their engines, and to use said turn-tables for the purpose of turning their engines and cars.

      “ Third. — The said lessees shall severally have the right to the use of the said freight house or houses, and of the proper tracks connecting therewith, for the purpose of loading and unloading freight, and also the use of the standing room provided for the loading and unloading of cars from or to wagons and drays, the first party to furnish the necessary labor therefor.

      “Fourth. — The said lessees shall severally have the right to the use of all the transfer tracks, side tracks, switches and turnouts and other terminal facilities of the first party at the said cities of Peoria and Pekin, for the transfer of loaded and empty freight and other cars by the said first party from and to all freight houses and warehouses, packing houses, stock yards, grain elevators, distilleries, mills and other industries, and to and from the tracks and warehouses of other railroads? with any of which any of the tracks of the first party shall at any time be connected, whether such tracks, or any of them, shall be owned or held or in some other wise controlled by said first party, and the said party of the first part, for the consideration aforesaid, doth hereby covenant and agree promptly and efficiently, and without discrimination or partiality in favor of any company or the business thereof, to make such transfer’s of the loaded and empty freight and other cars of the said lessees respectively, the said first party hereby reserving unto itself the right to make transfer of all companies and persons desiring such service, without prejudice, however, to the business of the said several lessees, and said first party shall also make up and deliver on the main track all freight trains, and at the union passenger depot all passenger trains of the said lessees respectively.

      “Fifth. — The said lessees shall severally have the right to the use of the said union passenger depot, when the same shall be constructed, and the appurtenances and approaches thereto, and to run their passenger trains into and out of the said depot. But until the completion of the said union passenger depot, the said lessees shall severally have the use of convenient and suitable accommodations for their passenger trains to be furnished by the said first party, and they shall at all times have the use of sufficient, convenient and suitable standing room for their passenger, baggage and mail cars at said city of Peoria, while not in use, on tracks to be provided and set apart by said first party.

      “Sixth. — The said lessees shall severally have equal rights and accommodations in the use and enjoyment of all elevators, stock yards and other property and facilities at any time acquired or controlled by said party of the first part. The said party of the first part reserving, however, unto itself, its successors and assigns, the rents, tolls, incomes and payments hereinafter provided to be paid by the said several lessees respectively.

      “ And in consideration of the premises and of the covenants herein contained, to be performed by said party of the first part, the said lessees respectively do hereby covenant and agree, each for itself and its successors, and not for the other, that during the continuance of this contract it will pay unto the said party of the first part and its successors, as rental for the said demised premises, and for the use and enjoyment thereof as herein provided for, in the manner following, that is to say: .

      “First. — The sum of $22,500 per annum, to be paid in equal monthly installments during the continuance of this contract, the installment of each month to become due and payable on the fifteenth day of the succeeding month, and to be paid at the place where the quarterly installments of interest on the first mortgage bonds of the party of the first part shall he payable, and when so paid the same shall be held for the payment of the next accruing interest on said bonds, and to be so paid out and not otherwise.

      “Second. — -The said lessees shall also severally pay to the treasurer of the said party of the first part, at the city of Peoria, on the fifteenth of the succeeding month, or within ten days after a statement thereof shall be furnished by the said first party, their just proportion of the expenses incurred or paid during the preceding month by the party of the firstpart. for the maintenance, renewal and keeping in thorough repair and working condition the said main track and sidings, passenger depot, approaches and facilities, freight and round-house or houses, and all other property which shall be used by the said lessees in common with the said, party of the first part, and of such other proper joint expenses and charges as shall accrue from the common use of said main tracks, depots, freight and round-houses and other property used in common, such just proportion to be fixed and determined by the number of wheels used and run by the said parties respectively on said main tracks, the said moneys to be paid by the said lessees respectively, to bear the same proportion to the whole amount of said expenses so to be incurred which the number of wheels used and run by the lessees respectively on the said main tracks shall bear to the whole number of wheels used and ran on the said main track for the preceding calendar month. Provided, however, that it is expressly understood that the expense of maintenance, renewal and repair of all tracks lying within the yards of the first party at and near Peoria and Pekin, shall be borne and defrayed by the said first party at its own cost.

      “Third. — After the completion of said union passenger depot the said lessees shall also severally pay, at the time and in the manner last aforesaid, or within ten days after a statement thereof shall be furnished by-said first party, such reasonable sum for each of their passenger, mail and baggage cars entering or leaving said passenger depot during the preceding calendar month, as shall be fixed by said first party, being an uniform rate per car, to be charged to all companies which shall run their passenger trains to and from the said depot without discrimination, which shall include the charges for making up trains.
    “ Fourth. — The said lessees shall also severally pay, at the time and in the manner last aforesaid, or within ton days after a statement thereof shall be furnished by the party of the first part, all such reasonable charges as shall be made by the party of the first part for the preceding calendar month, for the transfer service hereinbefore required to be done to and from connecting railroads, being an uniform rate per car, which shall have been previously fixed by said party of the first part, to be charged to all companies for such services without discrimination, and which shall approximate the actual cost of such service as nearly as possible, which shall include the charges for making up trains.

      “ Fifth. — The said lessees shall also severally pay, at the time and in the manner last aforesaid, or within ten days after a statement thereof shall be furnished by the party of the first part, all such reasonable charges as shall be made by the party of the first party for preceding calendar month for handling and switching their loaded and empty cars to and from freight houses, warehouses, packing houses, stock yards, grain elevators, distilleries, mills and other industries at the cities of Pekin and Peoria, being an uniform rate per car, which,shall have been previously fixed by the said party of the first part, to be charged to all companies and persons for such service without discrimination, which shall include the charges for, making up trains.”
    It also appears from the evidence of Eider and Gantt that after the cars in question were delivered to the appellant to be switched to the sugar refinery, and after they were so switched and left on the track at said refinery, they were still under the control of appellants, waiting orders from the party delivering them, or some industry, to be reloaded, when they were to be returned to the parties delivering them.
    To this cause of action the appellants filed a plea of the statute of limitations of five years, May 4, 18S7.
    Messrs. Stevess, Lee & Morton, for appellant.
    It is assumed by appellees that the appellant was a common carrier of the cars that were burned up at the sugar refinery, and that its. liability, as such, is determined by the case of P. & P. U. Co. v. C., R. I. & P. Co., 109 Ill. 135. It is further assumed that Reed had a right of action against it as a carrier, and that this right extended to the appellees as the owners of the cars. There are but few cases in any way analogous to this one. It is not determined by the case above cited, and upon which the appellees will attempt to fix the liability in this one. It will he seen in that case that no relation of lessor and lessee existed.
    That case was one of first impression in our court. Since its decision the M. S. Circuit Court for the Eastern District of Missouri, Judge Treat presiding, has announced a contrary principle in a similar case. M. P. R. R. Co. v. C. & A. R. R. Co., 23 Am. & Eng. R. R. Cases, 718.
    It is identical with the case of the P. & P. U. Co. v. C., R. I. & P. Co., and announces, as we believe, a correct.principle, although opposite to that of our Supreme Court; but inasmuch as the C., R. I. & P. Co. had no interest whatever, as lessee or otherwise, in the tracks and property of tho P. & P. U. Co., we do not think that the principle laid down by our court, if a correct one, is at all applicable to tho present case.
    In St. P. & S. C. R. R. Co. v. M. & St. L. R. R. Co., 26 Minn. 243, there was an agreement between the plaintiff and defendant companies, between whose lines of road there was a rail connection at Merriam Junction, and the defendant received from plaintiff at the junction eight of its cars, loaded with wheat, for transportation and delivery to consignees at Minneapolis, a point on defendant’s road. By the terms of said agreement the defendant was required to haul the cars over its road, having exclusive charge and control thereof, make delivery of the wheat, and return the cars? either loaded or empty, to the plaintiff, at the junction, in as good condition as when received, ordinary wear and tear by use excepted. Both parties were to share the profits of the transportation of the wheat and other freight so carried, and plaintiff was to receive from defendant, in addition to its shares of such profits, a stipulated compensation for the use of its cars, and while being so used by the defendant, the cars were wholly destroyed by fire at Minneapolis, without any fault or negligence on its part, amounting to more than ordinary wear and tear.
    The court held that the defendant was not liable to the plaintiff for such loss, either as a common carrier, bailee for hire or otherwise.
    Mr. II. W. Wells, for appellees.
    Our statute, act 1873, Starr & C. Ill. Stat., p. 1961, was construed by the Supreme Court to recognize a railroad company a common carrier of railroad cars. P. & P. U. Ry. Co. v. C., R. I. & P. Ry. Co., 109 Ill. 136.
    We insist that the case now presented is in all its essential features like the case of P. & P. U. v. C., R. I. & P. Ry. Co., 109 Ill. 135.
    It wras the same fire, October 27th, referred to in thaf case, that destroyed the cars sued for in this case. The only difference in facts being, that in that case the defendant was liable to return the empty cars to the plaintiff, and in this case it was bound to store them until called for.
    The so-called lease was simply a contract by which defendant became a common carrier for the other parties to the lease, and undertook the carriage of all their cars, loaded or empty, upon a compensation mentioned, and to be ascertained under the contract.
    There is no attempt to waive or evade liability as a common carrier anywhere in the contract. Bor is there any disguise of its position, as such carrier.
    The defendant accepted these cars as a common carrier, and began to transport them, and we insist for appellees that such responsibility continued; that it was legally liable as a common carrier until the transportation was completed. Her can defendant excuse itself from the performance of its duty as carrier by producing this lease in evidence, to the receiver of a railroad which simply delivered these cars to defendant to be transported.
    As was stated in the opinion, the case of the P. & P. U. Ry. v. C. R. I. & P. Ry., supra, was in that court a case of first impression. The principles governing the ease, however, were well established and have never been questioned. Mallory v. The Tioga R. R. Co., 39 Barb. 191; Hannibal R. R. Co. v. Swift, 12 Wall. 272; Spears v. L. S. & M. S. R. R., 67 Barb. 518; N. J. R. R. Co. v. Pa. R. R. Co., 3 Dutch. 100; V. & M. R. R. Co. v. Fitchburg R. R., 14 Allen, 462.
    The liability of a common carrier continues from the time the carrier accepts the goods until the contract of transportation is completed and the goods delivered in a warehouse.
    In this case the carrier was to deliver the cars on its track to the sugar refinery, there to be unloaded, then was to store them in its yards. The liability as carrier continued until the cars wore actually stored. Mohr v. C. & N. W. R. R., 40 Iowa, 579; Leavenworth, etc., v. Morris, 16 Kan. 333; C. & N. W. Ry. v. Bensley, 69 Ill. 630.
    The stoppage of the cars to be unloaded was not a storage of the cars, but merely one of the stages of transportation.
    It is one of the inflexible rules of law that a carrier can not become a warehouseman while the goods are in transit. McDonald v. Western R. R., 34 N. Y. 497; Oumut v. Henshaw, 35 Vt. 605.
    These cars wrere in defendant’s custody while at the sugar-refinery, simply awaiting transportation. R. R. Co. v. Mfg. Co., 16 Wall. 318.
    This action is brought in the name of the owner of the cars. That the owners were the proper parties has been held by our Supreme Court in Merchants Despatch v. Smith, 76 Ill. 542; G. W. R. R. v. McComas, 33 Ill. 185.
    The case of I. C. Ry. v. Schwartz, 13 Ill. App. 490, is a leading case upon this question, and while the question there turned upon the right of the consignee to sue under the contract, the reasoning of the court states the right in such cases as largely hinging upon ownership of the goods transported. See also Stone v. Wabash, etc., 9 Ill. App. 48.
   Per Curiam.

We are of the opinion that the plea of the statute of limitations should prevail as to car Ho. 3043. It will be seen that each one of the cars mentioned in the above agreement was delivered to the appellant to be switched at different dates, hence the appellee, if it has a cause of action, would have a separate one for each car.

In the first declaration filed in October, 1884; the then plaintiffs declared for the loss of but three cars. All the cars were destroyed by fire September 27,1881. The amended declaration was filed in February, 1887, in which the charge for the loss of car Ho. 3043 -was first counted on as claimed.

This it will be seen was more than five years after the caluse of action accrued, and was barred by the statute of limitations. The fact that the declaration was afterward amended so as to make appellees parties plaintiff, could not have the effect to revive the claim as to such car already barred. To gain the claim for this car in the original declaration by way of amendment would be no different in point of law than to file a new count for it. It was entirely omitted from the declaration till after the bar had taken place. It can in no way be regarded as a recounting for the same cause of action. This point seems to be fully settled in I. C. R. R. Co. v. Cobb, Christy & Co., 64 Ill. 128.

In that case a new count was filed declaring on a cause of action for loss of oats, not embraced in the original declaration and after the lapse of the statute, and it was held to be within the statute. The plea was good as against so much of the count as was barred, and the fact that it set up 'a bar to all would not interfere to make it bad as to the portion barred-

We are of the opinion that the appellee was a proper party to bring the suit. Merchants Despatch v. Smith, 76 Ill. 542; G. W. R. R. Co. v. McComas, 33 Ill. 185. That as to a shipper of cars over appellant’s road we must hold it to stand' in the relation of a common carrier, as was fully decided in P. & P. U. Ry. Co. v. C., R. I. & P. Ry. Co., 109 Ill. 136.

The appellee was the owner of the cars destroyed by fire, and was in no way bound by the contract between the railways, who were lessees of appellant, and the appellant, even if their contract relieved the appellant as to them, from the obligations of a common carrier, a point we do not now decide. The appellant was in the general business of switching cars for all railroads which would furnish it business. Whatever may have been decided in the United States District Court in Missouri, or in any other courts different, if different from the rule announced in the above cited cause reported in 109 Ill. 136 above, could have no binding effect in this court, as we are bound by the decisions of the Supreme Court of this State; so we will not stop to consider the cases cited by counsel for the appellant on that subject.

For the reason above given the judgment of the court below is reversed and the cause remanded.

Reversed, and remanded.


source: Caselaw Access Project

author: Upton, J.

license: Public Domain

text:
    C. Aultman & Co. v. Otto Weber.

      Sales — Warranty — Breach — Action on Note — Evidence — Damages— Instructions.

    1. In an action brought'by the payee on a note given in payment for a machine, where a warranty that the machine would do as good work as any in the market, and its breach, have been established, the defendant may introduo evidence to show the difference between the value of the machine at the time of such breach, and what it would have been worth had the warranty been true, and have such sum deducted from the amount of the note.
    2. Where there is an express warranty, the question of an implied warranty does not arise.
    8. Where the defendant relies on an express warranty and states language used by the plaintiff sufficient to create such warranty, his evidence is not met by asimple denial of the warranty.

      4. It is sufficient if a series of instructions properly presents the law of the case, though one of the series, if disconnected, might be in itself objectionable.
    5. In the case presented the evidence supports the verdict for the defendant, and there was no error in the admission of evidence.
    [Opinion filed December 8, 1888.]
    In error to the Circuit Court of Putnam County; the HonS. S. Page, Judge, presiding.
    Messrs. William H. Casson and Edwards & Evans, .for plaintiff in error.
    Messrs. Frank Whiting and Barnes & Barnes, for appellee.
   Upton, J.

This suit was brought on a note given by defendant Weber to the plaintiff, for a low-down Buckeye hinder.

It was commenced before a justice of the peace, and judgment was rendered for the plaintiff; defendant took an appeal to the Circuit Court of Putnam County, where a trial was had and judgment was obtained in favor of defendant, to reverse which the case is brought to this court.

The machine was sold to the defendant by an agent of the plaintiff, David Moore, in the summer of 1883, for the sum of $230, for which defendant gave his note to the plaintiff, due some time thereafter. The defendant had paid and caused to be indorsed upon said note $18.40, September, 1884, and $125 on the 5th day of May, 1885, and before this suit was commenced.

It is claimed by the defendant that the agent, Moore, at the time of the sale of the machine to the defendant, warranted it “to do good work,” “asgood as any other machine in the market;” that it was not as warranted, and that the damages thereby occasioned to defendant should be deducted from the amount due on said note.

The ¡plaintiff denies the warranty and the resulting damages, as claimed.

The errors complained of are:

1st. That in the trial in the Circuit Court improper evidence was admitted on the part of the defendant.

2d. That the court erred in giving defendant’s fourth instruction to the jury.

3d. That the verdict is against the weight of the evidence.

First. If a warranty and its breach were established hy the evidence, and the jury so found by their verdict, the defendant had the right, on the question of damages, to show by the evidence, and the jury therefrom find, the difference in the value of the machine at the time the warranty was broken, and what the machine would have been worth had the warranty been true, and have that sum deducted from the amount due upon the note.

Defendant had the right to keep the machine and rely upon the warranty, and „in so doing he could not, on showing a breach of the warranty, be compelled to pay for the machine more than it was worth in its then imperfect state or condition, if the warranty and the breach were proven. Tending to establish such facts on the trial, defendant was asked, as a witness: “Was that machine worth more or less, as it was, than it would have been if it had been as represented?” The witness answered, “Less.”

Chris. Hartman, ■ a witness called by the defendant, was asked, “ What was that machine worth ? ” He answered: “ The way it worked then, in 188é, it was not worth anything.”

This witness further testified: “ Other machines were working there in the same rye. The Plano was there. It was one of the machines then in the market. The Plano, after it started fairly, cut it down without troub’e; the other (machine in question) had more trouble in getting it down.” To which questions objections were- made, overruled and exception taken, and plaintiff moved the court to strike out the answers of the said witnesses to the questions stated, which was refused and exceptions were taken. This, in substance, constitutes the alleged improper evidence of which complaint is made in the first assignment of errors. We do not perceive any substantial error in the ruling of the court below upon that point.

It is claimed, however, that the trial court erred in allowing a comparison hy the machine in question with the Plano machine, for the reason that the warranty only applied to the machine then (in 1883) in use, and that the Plano machine was not then in the market in use.

It is a sufficient answer to this to say that there is no evi- ■ deuce in this record to show that the Plano machine was not in the market or in use in 1883, and there is some evidence tending to show that it was then in the market.

We are unable te see how the plaintiff could be prejudiced by the admission of the testimony complained of; certainly it was pertinent to the issue, nor do we think the evidence was a substantial invasion of the province of the jury on the questions involved.

Ssoond. Did the court err in giving the Jourth instruction to the jury for the defendant, viz.:

“A person who buys, without any special warranty, a machine from the manufacturer, who makes and sells it for a ] articular use, may keep the machine, even if it is not reasonably suited to the uses for which it was manufactured and sold, and for which he purchased it. There is an implied warranty in such case that the machine is reasonably suited for the purpose sold. In such case he can keep the machine, and when sued for the price of it, set up and have his damages allowed; and in such case his damages would be the difference in the value of the machine when the implied warranty is broken, from what the value would have been had the machine been reasonably suited to perform the work for which it was constructed and sold; but if there was an express warranty, relied upon by defendant, then he can not recover upon the implied warranty, but must recover, if at all, upon the express warranty.”

The subject of implied warranties on sale of chattels has perplexed the common law courts for many years and has been the source of many apparently conflicting decisions. We are not called upon to examine the cases determined upon that question in the case at bar, for the reason that we think the jury must have found from the evidence, as they were certainly warranted in finding, that there was an express warranty of the machine in question; and the rule of damages is not variant in cases of express from that of implied warranties.

The defendant’s evidence was that the agent of plaintiff and himself were in the field where the machine was being used. The agent said to him: This will be a good machine for you to buy; we have no particular price fixed upon the machine yet, because we have not sold any. It is just a trial machine, and we will sell yon this machine at the next year’s terms.” “ This machine is not a perfect machine, but we will give you a perfect machine. We will make it a perfect machine. The machine will do as good work as any other machine in the market.” The defendant replied that he would buy the machine on those conditions, and did so purchase it.

The agent, Moore, was called as a witness by the plaintiff to rebut this. He denies any warranty — using the word warranty — but he does not deny using the language quoted above. There is no substantial conflict in the evidence as to the language used at the time of sale. The defendant, in his evidence, gives it. The agent does not, but professes to state the legal effect of what was said. That the language used under the circumstances in evidence, relied and acted upon by the defendant, as he testifies and as appears by the subsequent facts in the case, constitute an exjoress warranty, will not be disputed.

That all the parties in interest understood that there was an express warranty of the machine in question that it should do good work, or be made to, their subsequent conduct affirms. That the machine did not do good work is clearly established.

We deem it useless to discuss this point further; conceding that the instruction complained of, disconnected from the series given, might be objectionable, that alone will not be cause for reversal. It is sufficient if a series of instructions properly presents the law of the case — as we think is done in this case — though one of the series, when disconnected, might be in itself objectionable.

Third. Is the verdict against the weight of the evidence? We do not so think.

We are satisfied that the jury were justified from the evidence in finding a special warranty on the sale.of the machine.; indeed, we do not well see how they could have found otherwise. 'There can be no question as to the breach of the warranty. Ho one pretends that the machine ever did good work-It was sold with warranty for §230. The evidence, undisputed’ was that, at most, §125 was its full value. The defendant had paid and plaintiff had indorsed upon the note §143.40. Upon the evidence in this record the plaintiff was more than paid, and the jury did right in returning their verdict for the defendant.

We find no substantial error in the record, and the judgment below must be affirmed.

Judgment affirmed.


text:
    The American Express Company v. Otto Wettstein.

      Carriers — Express Companies — “ C. O. D.” — Failure to Deliver or Notify Consignor — Loss by Fire — Liability of Company.

    1. An express company receiving a package for transportation “ C. 0. D. ” is bound to transmit it to its destination, tender it within a reasonable time to the consignee and demand payment; and in case of non-acceptance and non-payment it is the duty of the company to notify the consignor.
    2. The neglect by an express company to deliver a package and collect the amount required thereon, and to notify the consignor of such failure, for an entire week, will render the company liable as to the consignor in case of loss by fire.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Ogle County; the Hon. ■ Julius S. Grinnell, Judge, presiding.
    Messrs. O’Brien & O’Brien, for appellant.

      When a carrier receives goods with instructions to collect the price for which they are sold, before delivery, and carries them to their destination, upon their being tendered to the consignee, if the latter, no matter for what reason, defers the payment and acceptance, the carrier must retain them a reasonable time to enable the consignee to prepare to receive them, and if he does not he will be liable to an action by the consignee. But he will hold the goods in the character of warehouseman. Hutchinson on Carriers, § 392; The Great Western Ry. Co. v. Crouch, 3 Hurl. & N. 183; nor is the carrier bound to offer the goods more than once. Starr v. Crowley, McClel. & Y. 129.
    Where the carrier tenders the goods to the consignee, and he refuses to receive them, or where they are refused at the consignee’s residence, or where the carrier has done all that the law requires of him toward accomplishing a delivery and from any cause fails to effect it, and the goods are of necessity continued in his possession, he from that time becomes responsible only as a depositary or involuntary bailee, and hound only to the exercise of reasonable care. Heugh v. London and Northwestern Railway Company, 5 L. R. Exch. 51; Hutchinson on Carriers, § 351, 356.
    A formal tender is not required. Young v. Smith, 3 Dana, 91.
    The consignee may. by his acts and conduct, as well as by formal writing, waive a complete delivery, Schouler on Bailments, § 508; Moses v. Boston and Maine R. R., 32 N. H. 523.
    Any reasonable arrangement between the carrier and consignee as to the mode of delivery will be binding on the consignor, and the carrier exonerated. 2 Redfield on Railways, page 90, § 26.
    In the Adams Express Company v. McConnell, 27 Kan. 238, it is said: “ If the express company failed to notify the consignee of the arrival of the goods, inasmuch as he knew of their arrival, and refused to receive them, the failure did not work any damage.” See also Flumer v. Buffalo, etc., R. R. Co., 44 N. Y. 510, 511.

      When there is a delay on the part of the consignee in accepting and paying for the goods, or an absolute refusal to accept them, it is not, as the jury were told in the first instruction given for the appellee, the duty of the carrier, as a matter of law, to notify the consignor, in order that the carrier may be relieved of the duty of a common carrier. Kremer v. Southern Ex. Co., 6 Caldwell (Tenn.), 356; Hudson v. Baxendale, 2 Hurl. & N. 575; 2 Redfield on Railways, 25, 46, 87, 90, 92; Smith's Lead. Cas. 258 (8th Amer. Ed., 1885); Steamboat Keystone v. Mories, 28 Mo. 243; Fisk v. Newton, 1 Den. 45; Mayell v. Potter, 2 Johns. Cas. 371; Weed v. Barney, 45 N. Y. 347; Marshall v. Amer. Exp. Co., 7 Wis. 1; Fenner v. Buffalo, etc., R. R. Co., 44 N. Y. 510; Neal v. R. R. Co., 8 Jones (N. C.), 484; Ostrander v. Brown, 15 Johns. 39; Angell on Carriers, 291, 295; Witbeck v. Holland, 45 N. Y. 13; F anders on Shipping, 276; Heugh v. London, etc., R. R. Co., 5 L. R. 51; Adams Ex. Co. v. McConnell, 27 Kan. 238; Wilson v. Royal Exchange Shipping Co., 24 Fed. Rep. 815; Redfield on Carriers and Other Bailees, 118, 302; Schouler on Bailments, §§ 500, 507, note 2; Adams Ex. Co. v. Darnell, 31 Ind. 22, 23; Roth v. Buffalo, etc., R. R. Co., 34 N. Y. 548; Young v. Smith, 3 Dana, 91; Richardson v. Goddard, 23 How. 40; Amer. Ex. Co. v. Hackett, 30 Ind. 252, 253.
    Messrs. Hathaway & Baxter, for appellee.
   Upton, J.

This action was commenced before a justice of the peace, by appellee against appellant as a common carrier, to recover the value of a package of goods delivered by appellee to the appellant at Bochelle, Illinois, on the 1st of July, 1887, to be forwarded by the appellant to one Mrs. Sires, at Hurley, Wisconsin, with instructions to the carrier to deliver the same upon the payment of the sum of $80.

The package was a box about two feet square, and contained three dinner castors, four or five pickle castors, four or five dozen knives and forks, and was addressed “Mrs. M. A. Sires, Hurley, Wisconsin, C. O. D. $80,” on outside top of the box. At the time of the delivery of this package to appellant, and with the same, was delivered a bill, specifying each article contained in the package, in an open envelope left with the agent of appellant at Rochelle to be forwarded with the box.

This package, so received, was carried by appellant as consigned, and arrived at its destination (Hurley) about July 2, 3o87, no notice being given of its arrival to the consignee, Mrs. Sires, until July 4, 1887, on which last named day she requested appellant’s agent to hold the goods for a short time until her hotel, then in process of erection, should be completed.

The appellant made no demand on the consignee for the payment of the said sum of $80 and appellant held the said package at the request of Mrs. Sires, consignee, without notice to appellee, the consignor, until the 9th day of July of the same year, when the same was destroyed by fire, while in appellant's possession.

It was stipulated among other things on the trial in the court below, “that the appellant was not in any manner liable for the origin of the fire,” and “that the usual time for transmitting a letter by mail from Hurley, Wisconsin, to Rochelle, Illinois, was not longer than two days,” and “ that the appellant did not notify the appellee that the consignee had neglected to take and pay for said property in said package, on notice of its arrival,” and “that the value of the property in question was the sum of $80.”

The appellee claims that appellant was guilty of such negligence in failing to demand payment of Mrs. Sires of the said sum of $80, and in neglecting to tender the goods to the consignee, Mrs. Sires, and in neglecting to notify appellee that the goods wore being held by the appellant at the request of said consignee, and failing to notify appellee that appellant had not delivered the same, that it became liable to appellee for the value thereof, $80.

In the justice court a judgment was obtained from which an appeal was taken to the Circuit Court of Ogle County, where the cause was heard by a jury and a verdict given for appellee, a judgment being rendered thereon. The case is brought to this court on appeal to reverse that judgment.

■ The contention is, whether, under the evidence in this case, the appellant carrier receiving the goods C. O. D. (which means, as shown by the evidence, “collect on delivery”), was bound upon the arrival thereof at the place of destination in apt time, to tender the same to the consignee, demand the amount of the bill accompanying the shipment, and in case of non-acceptance or nbn-payment, to notify in apt time the shipper or consignor?

Great industry is manifested on the part of counsel on both sides in the citations made of adjudications of kindred questions in England and the courts of last resort in the several States of this Union, as well as from the text-books of authors of acknowledged ability and accurateness, but, in the view we take of this case, it will not be necessary for us to examine to any considerable extent the authorities cited.

Whatever may be the rule of law elsewhere, we regard it as settled in this State, so far as the questions involved in the 'case at bar are concerned, in the case of Am. Merchants Union Ex. Co. v. Wolf, 79 Illinois, 430. In that case it was held that an express company is not only required as a common carrier to transport the goods received by it for shipment to the place of destination thereof, but the further duty is enjoined upon it to deliver the goods to the consignee at his place of residence or business, and when directions are given to that effect by the consignor, it becomes the further duty of the express company to collect the price for which the goods were sold by the consignor to the consignee, and return the money to the consignor, and where goods transported by an express company are tendered by it to the consignee, and he fails to receive and pay for the same, it is the duty of such express company to notify the consignor of the goods, and when this is done, it is relieved from its responsibility as a common carrier, and holds the goods subject to the order of the consignor, but not before.

In that case it is further held that an express company can discharge itself from responsibility as a common carrier in no other way than by an actual delivery of the goods to the proper person at his residence or place of business, except by" showing that it has been excused from so doing, or prevented by the act of God or the public enemy. If we do not wholly misapprehend that case it must be held decisive of the case at bar.

The instructions of the court were in accord with the rule established in the case above referred to, and we think that the evidence in this case shows such misconduct and neglect of duty on the part of the express company as to render it pable in this action, and that the jury properly so found.

We hold the law to be that the liability of an express company as a common carrier, at least in this State, is not to be measured by that of common carriers in general. The doctrine applied to railways and transportation companies in general, is well settled, that when goods arrive at their destination, if the consignee is not ready to receive them, it is the right of such company to store the goods in a safe warehouse, and there hold for consignee until called for, and that ordinarily no notice is required to be given of the arrival of the goods to consignee or consignor.

But this doctrine, and more of a kindred character, has no application to the duties and obligations of an express company. Baldwin v. The American Ex. Co., 23 Ill. 197.

We further hold that in the case at bar it was the duty of appellant, upon receipt of the package containing the goods in question, consigned as before stated and marked C. O. .D. 880,” to have delivered such package or have offered to deliver the same to the consignee in person or at her place of business, within a reasonable time after receipt thereof at the place of destination, and to have then collected the amount as indicated, the 880, and transmitted the same to the consignor at Rochelle, Ill., or have offered to deliver the same to consignee in person or at her place of business, and if not accepted and paid for in apt time, to have notified consignor of that fact, and held the goods subject to his order, and that the holding the goods from the 2d or 3d day of July, 1887, to the 9th day of the same month, without actual delivery or offer of delivery, and without collecting the amount ordered to be collected, and in not notifying consignor of the non-delivery of said goods, or the non-payment of the charges thereon, or of the refusal of the consignee to accept and pay for said goods, until after the 9th of July, when the same were destroyed by fire, was such unreasonable delay and negligence on the part of appellant, as to render it liable in this action for the value of said goods; and finding no error in the judgment of the court below, the same is affirmed.

Judgment affirmed.


author: C. B. Smith, J.

text:
    Chicago & Alton Railroad Company v. Albert Adler.

      Railroad« — Personal Injury at Street Crossing — Action for Damages— Dangerous Rate of Speed — Contributory Negligence — Instructions—Damages — Whether Excessive.

    1. In an action against a railroad company to recover damages for causing the death of plaintiff’s intestate, it is held: That the court properly-declined to instruct the jury to find for the defendant; and that the questions whether the deceased was in the exercise of reasonable care and whether the defendant was guilty of negligence, were for the jury.
    2. The question of damages rests in the sound discretion of the jury. In the case presented a verdict for $2,400 for causing the death of a healthy, industrious man, twenty-one years of age, is sustained.
    3. It is proper to refuse instructions which undertake to state what acts done or omitted on the part Of the deceased would constitute such negligence as to defeat a recovery.
    4. Persons using the streets in a city have the right to assume that railway trains passing over the crossings will be run with great caution and with due regard for their rights.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Brown & Kirby, for appellant.

      It is respectfully submitted that in this case there was no evidence whatever of the exercise of ordinary care to avoid injury upon the part of the deceased. There is no fact or circumstance from which the jury could infer the existence and use of ordinary care. On the contrary, the evidence shows that he was grossly negligent. It is essential in these cases for the plaintiff to prove that he was in the exercise of ordinary care to avoid injury, and the absence of such proof, or facts from which it could be inferred by the jury, is fatal to the cause of the plaintiff, upon whom the burden of proof rests as to that fact. C. & I. Co. v. Martin. 115 Ill. 370-3.
    In cases where danger is reasonalpy to hr apprehended, proof of positive or special care must be made. C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. 245.
    “On approaching a railroad a traveler must use his eyes and ears, and must avoid danger if he can, notwithstanding the negligence of the company.” Henze v. St. L., K. C. & N. R. R. Co., 71 Mo. 636; Purl v. St. L., K. C. & N. R. R. Co., 72 Mo. 168; Pa. Co. v. Ruddel, 100 Ill. 603; C. & N. W. R. R. Co. v. Hatch, 79 Ill. 137.
    Neglect to sound a whistle or ring a bell is not such neglect as will authorize a recovery of itself, but it must he shown by the evidence that the injury was the result of such negligence. I. & St. L. R. R. Co. v. Blackman, 63 Ill. 117; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; I. C. R. R. Co. v. Benton, 69 Ill. 74; C., B. & Q. R. R. Co. v. Notzki, 66 Ill. 455.
    The conclusion from all the cases is, that if one goes upon a track without taking the necessary precautions to ascertain whether there is an approaching train or not, he is guilty of gross negligence and he can not recover. N. P. R. Co. v. Heileman, 49 Pa. St. 60-64; P. R. Co. v. Beale, 73 Pa. St. 504; Rorer on Railroads, Vol. l, Ch. 17, Sec. 7, p. 535.
    The burden of proof in this case rested upon the plaintiff to prove, not only that defendant omitted to sound a whistle or ring a boll, hut also to show that lie was in the exercise of care and diligence at the time of the accident. C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 454, and cases there cited.
    We maintain that all the surroundings put upon Beuck the duty of exercising a positive or special care to avoid the danger which he knew would attend the crossing of these railroad tracks, and a mere negative condition of going on the tracks without looking or listening would not pnt him in the position of exercising ordinary care. Such is the law as laid down by this honorable court in a well considered case. C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. 245; C., B. & Q. R. R. Co. v. Dougherty, 12 Ill. App. 181; U. Ry. & T. Co. v. Kallaher, 12 Ill. App. 400.
    Messrs. Haley & O’Donitell, for appellee.
    'Whether or not a party is guilty of negligence in not looking out-for an approaching train is a question of fact for the jury, and where there is evidence tending to establish the facts relied on for a recovery, the verdict must stand. The question of negligence is a question of fact for the jury. L., S. & M. S. Ry. v. O’Conner, 115 Ill. 254; C. & A. Ry. Co. v. Carey, 115 Ill. 115.
    Where there is evidence tending to show that a crossing is of a dangerous character in a populous place, and that the injury was caused by the rapid running of a train there, a verdict for plaintiff will not be disturbed. C., B. & Q. R. R. v. Payne, 59 Ill. 534.
    The persons in charge of a train are presumed to he cognizant of the character of a crossing and that persons are liable at all times to be in the act of passing. I. & St. L. R. R. v. Stables, 62 Ill. 313.
    Where a railroad company is not restricted by law to any rate of speed, unusual speed at crossings, where men or animals are generally exposed to danger, may be considered with other matters — as a failure to give signals, etc. — to determine the want of proper care. Thompson on Reg., Vol. 2, p. 418, n. 9-
    A railroad company should not permit obstructions upon its right of way, near a crossing, which will prevent the public from observing the approach of trains. R. R. I. & St. L. R. R. Co. v. Hilmer, 72 Ill. 235.
    There is no precise rule as to the duties which railway companies owe to strangers crossing their lines of travel, except where the same is prescribed by statute. What will constitute reasonable care depends on the circumstances. A greater degree of care is required at street crossings in populous cities than at the crossing of a country road. Thompson on Neg., Vol. 2, p. 417.
   C. B. Smith, J.

This is an action in case, brought by Albert Adler, administrator of William Beuck, deceased, against The Chicago and Alton Bailroad Company, charging that it negligently caused the death of Beuck. The undisputed facts as disclosed in this record are' these: In the city of Joliet, where the accident occurred, there are two streets crossing each other. Fourth avenue runs east and west. Eastern avenue runs northeast and southwest and crosses Fourth avenue at an angle. At the crossing of these two avenues the Chicago and Alton railroad track also crosses, running nearly in a north and south direction. At this crossing there are three railroad tracks. On the north and south sides of Fourth avenue and on the east side of Eastern avenue are two warehouses, one on each side of Fourth avenue, and coming close up to the line of Eastern avenue. There is also a scale-house on the north side of Fourth avenue between the railroad tracks and the warehouse, and a little northeast of the warehouse there was a residence. Both these streets were much used by the public, being within the corporate limits of the city of Joliet. The railroad also seems to have used this point for two or more side-tracks or switches. On the day of the accident Barnum’s show was exhibiting in Joliet only a short distance from the junction of these streets, and a large number of people were using the streets. What was known as the Denver train on defendant’s road going ¿outh was due about two o’clock in the afternoon. The deceased, Beuck, about that time was driving a single horse and buggy westward on Fourth avenue on a gentle trot, and just as he came on the crossing of the railroad track he was struck by the locomotive drawing the Denver passenger train and instantly killed. The declaration charges the defendant with having negligently caused his death while the deceased was in the exercise of reasonable care. The general issue was pleaded. A trial resulted in a verdict for plaintiff of §2,400. A motion for a new trial by the defendant was overruled and judgment rendered on the verdict. Appellant brings the case here on appeal for review and assigns the usual errors. The important and material question involved is, whether the defendant was guilty of such a degree of negligence in running its train as to make it liable for the death of Beuck. The appellant insists, first, that defendant was not guilty of negligence in running its train on that day, and secondly, that if its negligence be proven or admitted, then it is excused by the negligence of the deceased, which it alleges was equal to or greater than that of defendant. We have given above the situation of the streets and the railroad track at the point where the accident occurred as conceded by both parties. There were-some controverted questions involved on the trial of the case, which went to affect the question of negligence of both parties. Several witnesses swear for the plaintiff on the trial that the railroad company had left standing on one of its side tracks, east of the passenger track, a number of the box cars belonging to Barnum’s “ show train,” and that they came so close up to the north line of Fourth avenue, and lay there northward for some distance along the line of the passenger track, that the line of vision was so obstructed that the deceased, going westward on Fourth avenue, could not see the approaching train coming from the north until he was almost on the track. These cars lay westward from the warehouse and scale-house and were additional obstructions to any one seeing to the north, who was approaching the track from the east. Some of plaintiff’s witnesses also swear positively that no flagman was at the crossing to give warning of the approach of the train. On the part of the defendant a number of witnesses swore that there were no cars standing on the track to-obstruct the view, and that there was a flagman standing in the middle of the crossing waving his flag at the deceased and trying to stop him, but that he neither looked for the cars nor saw the flagman, but drove straight on the track after some person had called to him to stop. The proof is also that the train was running at the time at a rate of speed from fifteen to twenty miles an hour. ¡Neither the engineer nor the fireman denies this rate of speed. Several of plaintiff’s witnesses swear they heard no bell ringing and heard no whistle. This is contradicted by the fireman on the train as well as by other witnesses, who say they heard the bell. After a careful examination of the evidence we can not say that the jury were not justified in finding the defendant guilty of negligence in running its train at that rate of speed in a populous city and especially at a public street crossing, and within a short distance of the ei Greatest show on earth.” The fast and dangerous speed of the train is one of the acts of negligence charged in the declaration. Whether that rate of speed was proven and was dangerous and reckless running in a city and at a public crossing, either with or without a flagman there, was a question of fact for the jury, and unless we can clearly see from the evidence that they have found erroneously, or been governed by prejudice or passion, we are not warranted in setting aside their finding under the uniform ruling of this and the Supreme Court, So, also, was the alleged negligence of the deceased at the time of his death a question of fact for the jury, and we see no sufficient reason to interfere with their finding upon the evidence in the record. He was driving in a top buggy, going west, with the warehouse and weighing house on the north of him, and if plaintiff’s witnesses are correct, also a line of Barnum’s cars lay in a position to prevent him seeing the train approach from the north. One witness who was driving in the same direction and who had almost reached the track, swears that he neither heard nor saw the train until it came plunging on the crossing from behind the line of Barnum’s cars, and was immediately upon the deceased. The degree of care to be exercised by persons using streets and public highways as well as railways using the crossings depends very much on the situation and surroundings of both. "While it is always and under all circumstances the duty of both to use reasonable care, still, reasonable care in one situation might not be reasonable care in another. Thus a rate of speed for a train in crossing a public highway in the country, which would there be reasonable, might be dangerous and reckless in a city or town. Persons using streets in a city have a right to suppose that railway trains passing over the crossings will be run with great caution and with due regard to the rights of people going on the streets. The I. & St. L. Ry. Co. v. Stables, 62 Ill. 313; R. R. I. & St. L. Ry. Co. v. Hillman, 72 Ill. 235. It is also the duty of railroad companies to keep the crossings and the approaches to them reasonably clear from incumbrances that hinder the public from seeing the approach of trains.

Complaint is made that the court erred in not directing the jury to find for the defendant. There was no error in this. Hnder the state of the evidence in this case, such an instruction to the jury would have been manifestly wrong. The court should never take the case from the jury unless it is clearly satisfied that a verdict could not stand, and where there is substantially nothing for the jury to try. This question came before the Supreme Court in C., B. & Q. R. R. Co. v. Payne, 59 Ill. 534, upon a state of facts very similar to those disclosed in this record. In that case Payne was killed at a public highway crossing in the country, much used by public travel, and from its situation made a dangerous crossing-The court was then asked to instruct the jury to find for the defendant, but the court refused so to do. In that case the road crossing was two miles from a populous city, and the ruling of the court was held correct.

The second and third instructions asked by the defendant are substantially alike, and were both properly refused by the court. They both distinctly declare what acts done or omitted on the part of the deceased would constitute such negligence as to defeat a recovery. What acts done or omitted will constitute negligence isa question of fact for the jury to decide, and not for the court, upon the trial. These two instructions asked the court to usurp the province of the jury. Wabash R. R. Co. v. Elliott, 98 Ill. 481.

Complaint is made that the court modified another of defendant’s instructions (not numbered) before giving it. The modification simply submitted to the jury to say whether the supposed facts in the body of the instructions, if true, amounted to acts of negligence on the part of the deceased. In this there was no error.

Complaint is also made that the court erred in giving plaintiff’s instructions. But five instructions were asked by the plaintiff. We find no error in any of them; they lay down the simplest and plainest maxims of the law governing the case and we think are free from the criticisms made upon them. We find no error committed against the defendant in the instructions. Indeed, the instructions given for the defendant are very elaborate, (twenty-one in number,) and lay down the Jaw as clearly and forcibly in favor of the defendant as it was possible for the learned counsel to prepare and write.

It is lastly urged that the court ought to have granted a new trial because the damages are excessive. The deceased was a young man about twenty-two years of age and was a butcher. The evidence shows that he was an active and industrio us young man ; that he worked for Adler from the time he was twelve or fourteen years old, and that he gave all his earnings to his mother. Adler swears that his mother was at one time indebted to him in the sum of $400 and that this young man and his brother paid it all off for their mother. There is no standard by which to measure the damages in cases of this kind except the sound judgment and discretion of the jury and the character and habits of the deceased as disclosed from the evidence. The damages can only be compensatory for pecuniary loss. In the City of Chicago v. Major, 18 Ill. 349, a verdict for $800 was sustained for the death of a four year old child. In C. & A. R. R. Co. v. May, 108 Ill. 288, a judgment was recovered by the widow of the deceased, who was a laborer, for $3,250, and was sustained on appeal. We do not think the verdict in this case was excessive under the evidence.

Perceiving no error in this record the judgment is affirmed.

Judgment affirmed.


text:
    Chicago & Alton Railroad Company v. John Henneberry.

      Railroads — Embankment—Overfloio of Plaintiff's Lands — Variance.
    1. The owner of land, overflowed because of the existence of a railroad embankment, can not maintain an action against the railroad company for damages unless the embankment has been created or changed so as to increase the damage to his land since he became the owner thereof.
    2. Where the declaration claims damages for obstructing a watercourse, and the evidence does not establish the existence of such watercourse, the variance is sufficient ground for reversal.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Will County; the Hon.Dqrbance Dibell, Judge, presiding.
    ' Messrs. Brown & Kirby, for appellant.
    Messrs. Haley & Donnell, for appellee.
   C. B. Smith, J.

The declaration in this case contains four counts. The first charges appellant with maintaining an embankment across plaintiff’s premises, and damming a watercourse which flowed across plaintiff’s land, and thereby tin owing the water back and destroying the crops and grass-

The second count alleges that on January 1,1881, there was a watercourse across plaintiff’s premises, through which ran surface water on said premises, and that defendant and others erected an embankment between plaintiff’s premises and the adjoining land, in such negligent manner as to prevent the water collecting on plaintiff’s land from .flowing through said watercourse, and that defendant operated the railroad and maintained the embankment until the commencement of the suit, and thereby the waters were thrown back on plaintiff’s premises, to his damage, etc.

The third and fourth counts are substantially the same as the first and second, both alleging that a watercourse existed on plaintiff’s land, and that the defendant maintained the grade, and raised the grade across his land, whereby the water failed to flow off, and plaintiff was thereby damaged.

The defendant below pleaded the general issue, and a trial was had, resulting in a verdict and a judgment for the plaintiff for 81,558.50. A motion for a new trial was overruled and judgment rendered on the verdict. Appellant brings the case here for review.

The plaintiff owned 102 acres of land, but prior to the time he bought his land the Illinois River Railroad Company had bought its right of way from the canal commissioners, and had made its embankment and constructed its road. The plaintiff purchased from the same party. Plaintiff himself testifies that he knew the railroad was built when he bought the land, and knew the embankment was there, and knew that it flooded the land he bought; that it kept the water back until it raised and ran over the embankment, and the effect was to flood that quarter of section, and it did flood it. There is no evidence in this record to show that the railroad company has done anything to increase the damage to the land since the plaintiff bought it. There is evidence to show that the embankment has been since raised about eight inches, but there is no proof to show that the increase in the height of the embankment has been the cause of any additional back flowing of the water, and certainly no evidence that any additional damage has been caused over what resulted from the first embankment, made before the plaintiff bought his land.

The plaintiff can not recover' for any damage caused by obstructions made before he bought his land, and which have since then been maintained in the same manner, without showing that such changes have been made in the embankment as to throw additional burdens on his land.

This precise question was settled in the T., W. & W. Ry. Co. v. Morgan, 72 Ill. 155. The court, in that case, says: “ The appellee did not own the lands when the company graded and constructed its road at that point. Whatever damage was done by reason of grading the road-bed was to his grantor. In the absence of all evidence on that subject, it may he presumed that the company adjusted the damage with him. If the former owner did not complain, certainly his grantee can not. He purchased the land with the incumbrance of the railroad upon it. He could see exactly how the farm was affected by the construction of the railroad. It is not averred the company has since made any change. This cate is clearly within the principle of cases of the I. C. R. R. Co. v. Allan, 39 Ill. 205, and T., W. & W. Ry. Co. v. Hunter, 50 Ill. 325.” .These cases are decisive against the judgment in this case upon the evidence and pleadings in this record.

There is another reason why this judgment must be reversed. Every count in the declaration alleges that a watercourse crossed plaintiff’s land, and that the water flowed through the watercourse, and that the defendant obstructed this watercourse. We do not think the evidence shows the existence of a watercourse, and there was, therefore, a variance between the pleadings and the proof. For the foregoing reasons the judgment is reversed and remanded.

jReversed and remanded.


author: Lacey, P. J.

text:
    Edward C. Hegeler v. The First National Bank of Peru, Illinois.

      Bill to Set Aside Judgment by Confession — Fraudulent Concealment— Estoppel in Pais.
    The mere failure of a creditor to make public bis possession of judgment notes given to him by his debtor, is not fraudulent, where he does nothing to persuade or influence others to give the debtor credit.
    [Opinion filed December 8, 1888.]

      Ix error to the Circuit Court of La Salle County; the Hon. Dorraece Dibell, Judge, presiding.
    Messrs. Bull, Straws & Huger, for plaintiff in error.
    A deed not at first fraudulent may become so by being concealed or not pursued, if creditors are thereby induced to give credit to the grantor. Hildreth v. Sands, 2 Johns. Ch. 35; Perine v. Dunn, 3 Johns. Ch. 508.
    If an instrument is made with the intent to hinder and delay creditors, it is not purged because the creditor may also have had some other purpose in view.' Reid v. Noxon, 48 Ill. 323; Merry v. Bostwick, 13 Ill. 398.
    Kerr on Fraud and Mistake, p. 42, says: “ Fraud, in contemplation of a court of equity, may be said to include, properly, all acts, omissions and concealments * * "x" by which an undue or uuconseientious advantage is taken of another.” Citing Belcher v. Belcher, 10 Yerg. 121; Kennedy v. Kennedy, 2 Ala. 571; Gale v. Gale, 19 Barb. 249.
    And on page 43: “Fraud may be collected and inferred from the matters and circumstances of the transaction as being an imposition and cheat on other persons not parties to the transaction.” Citing Jones v. Bolles, 9 Wall. 364; Phelen v. Clark, 19 Conn. 421.
    In Bank of U. S. v. Housman, 6 Paige, 534, it is likewise held that a deed otherwise bona fide becomes void, if concealed, and others have been induced to trust the grantor, upon the belief that he was owner of the property conveyed.
    In Hildreth v. Sands, 2 Johns. Ch. 48, the court holds that “ a deed not fraudulent at first may afterward become so by being concealed, or not pursued, by means of which creditors have been drawn in to lend their money.”
    In Scrivener v. Scrivener, 7 B. Monroe, 374, the facts were that a deed was withheld from the records for some time after its execution, until the credit of the grantor (founded in part on the apparent ownership of the land) was exhausted, when the deed was put upon record. The court says: “ The deed has thus been, evidently, a means of deceiving and defrauding others, and there is some reason to infer that it was originally so intended. At any rate, it has, by being so long kept sec-ret, and finally put upon record, after the grantor became embarrassed, * * '* been made the instrument of fraud against the creditors of the grantor.”
    In Gregg v. Martin, 12 Allen, 498, the facts were that the principal defendant had assigned, openly and for a valuable consideration, the wages he expected to earn under an existing contract. They were attached under trustee process by subsequent creditors, and the court held that “ an assignment of future wages to be earned under an existing contract, if made for the purpose of preventing them from being attached by trustee process, is void; and the fact that it was made openly and for a good consideration is immaterial.” Citing Boylen v. Leonard, 2 Allen, 407; Clapp v. Leatherbee, 18 Pick. 131, 138; Parkman v. Welch, 19 Id. 231, 237; Kimball v. Thompson, 4 Cush. 441.
    In the case at bar the judgment notes were kept concealed for the express purpose of sustaining the credit of the glass company, and thereby enabling it to obtain credit, borrow money, etc., and then to be used without a moment’s warning, and to the injury and prejudice of such subsequent creditors.
    Mr. G. S. Eldeidge, for defendant in error.
   Lacey, P. J.

This was a bill in equity filed by plaintiff in error against defendant in error, for the purpose of setting aside certain judgments by confession in favor of defendant in error against the De Steiger Glass Company. The statement .of the facts and pleadings, as far as necessary, is about as follows:

On December 22, 1882, the First National Panic of Peru, a corporation doing business under the national banking act, obtained two judgments by confession in the Circuit Court of La Salle county against the De Steiger Glass Company, the first for $35,050 and costs, of which sum $50 was attorney’s fees, and the second for $5,325 and costs. Upon the same day executions were issued upon said judgment to the sheriff of La Salle county, and by him levied upon a large amount of real estate as the property of the De Steiger Glass Company, and the same advertised for sale.

On December 26, 1882, the La Salle National Bank recovered a judgment by confession in the same court against the De Steiger Glass Company, for 87,437.34 and costs, and an execution thereon was issued that day.

On January 1, 1883, a judgment by confession was obtained by Edward C. Hegeler against the De Steiger Glass Company in the same court for §14,500 and costs, and an execution was issued thereon on the same day to the same sheriff, and levied on real and personal property; and the same was returned unsatisfied, but with the levy not released, after the commencement of this suit.

On January 11, 1883, the I,a Salle Coal Mining Company recovered a judgment by confession in the same court against the De Steiger Glass Company for 82,945.17.

Numerous other judgments against the De Steiger Glass Company followed in circuit and justice courts, the details and amounts of which need not now be stated.

On June 13, 1883, the First National Bank of Bern recovered a third judgment in La Salle County Circuit Court against the De Steiger Glass Company for §18,137.47 and costs, by summons and default.

Meantime on April 4, 1883, a few days before the date fixed for the sale of the real estate of the De Steiger Glass Company on the executions of the First National Bank of Peru, Mr. Hegeler filed his original bill in this case, attacking the validity of the judgment so obtained against the De Steiger Glass Company by the First National Bank of Peru, and asking that they and the executions and levies thereunder be set aside, and the property of the De Steiger Glass Company distributed among all the creditors of that company. The bill was filed in behalf of all such creditors.

Service was had on the First National Bank of Peru before the day fixed for the sheriff’s sale; and at that sale a notice was read on behalf of Mr. Hegeler, stating the filing of the bill and the object sought by it. But no injunction having been obtained the First National Bank of Peru caused the sheriff to proceed and sell the several tracts levied upon, and the bank became the purchaser at such price that its judgment for $35,050 was returned satisfied in full, and its judgment for $5,325 was returned satisfied to the extent of $5,290.46, leaving a little over $35 unsatisfied, besides interest. The bank has since taken out sheriff’s deeds for part of the property.

The question to be decided is whether the two judgments of the defendant in error are fraudulent as to the claim of the plaintiff in error, Hegeler. The plaintiff in error is the only one who has sued out this writ of error. The date of the two notes upon wh'Ch the judgments in favor of defendant in error was confessed bore date January 10, 1882, and were each due in January, 1882, and each accompanied by a power of attorney to confess judgment at any time; that the indebtedness for which the notes were given was existing long prior to the giving of these notes and the respective power of attornej's, and it is admitted that the notes were given for Iona fide indebtedness.

It is charged in the bill at the time the notes were given that the said De Steiger Glass Works was insolvent, which was known to defendant in error; that it had cause for so believing; that just prior thereto the glass works offered to mortgage its property to the defendant in error to secure said indebtedness, but the bank refused because it would injure the . credit of the said glass company and prevent it from obtaining further credit and loans, and therefore it took the notes with the power of attorney attached thereto and agreed to conceal the same, and to allow the said glass company to retain the full control of the property freq from any record or known lien; that in pursuance of such agreement the. defendant in error, with the intention of allowing the sard glass company to obtain new and future credit elsewhere, and to defraud its creditors, did keep concealed in its possession for over eleven months, till December 22; 1882, said judgment notes, when it entered judgment thereon and took executions, and made levies as aforesaid, with express intent of defeating the just claims of appellant, etc., incurred during the period of said concealment.

It charges that in consequence of the false representations of said glass company and the fictitious credit it secured by defendant in error in allowing it to retain all its property apparently free from, incumbrances, without which the plaintiff in error would not have loaned the said glass company the amount of money for which his notes were subsequently' given, that the plaintiff in error loaned his money. And it is claimed that in equity the defendant in error’s judgment ought to be postponed to that of plaintiff in error’s. Now we think the evidence fails to show that defendant in error acted in bad faith or was wilfully trying to entrap any one into loaning the glass works money', or that it acted in such a way as to be chargeable with actual fraudulent intent.

It probably knew that the glass works were somewhat embarrassed, but thought with friendly treatment it would be able to pay its debts and come out of its embarrassments, and was willing to take the chances of losing its own debt in order to befriend its debtor.

There was no particular effort to conceal the existence of the notes and power of attorney' more than defendant in error did not give it any publicity. In fact no one ever-inquired of it about the existence of the notes or the standing of the glass company, and especially not the plaintiff in error. Counsel for plaintiff in error- claim that there is a great distinction between the rights of prior and subsequent creditors of the debtor company, as far as the plaintiff in error’s equities are concerned, he being a creditor accruing subsequently to the execution of the notes.

But we think that the distinction is more fanciful than real, and no just claim to any such vantage can be set up unless the rules of estoppel mjyaw can be applied.

Now we think that there can be no such grounds successfully urged in this or similar cases, unless there was some intent to defraud, and some action of which the plaintiff in error knew and acted on to his disadvantage, being induced thereto by defendant in error. If plaintiff in error, prior to his loaning his money to the glass company, inquired of defendant in error of the company’s condition financially and informed it he was about to make it a loan, and the defendant in error had made false statements in regard to and denied or concealed the existence of the notes, then the doctrine of estoppel might apply. But in a case like this, where nothing was done to mislead any one, except the fact of the existence of the defendant in error’s own debt and notes, with power of attorney to confess judgment and the failure to make it public, we can see no grounds for applying the doctrine of estoppel.

If such should be the rule of law no creditor who conceived his debtor to be hard pressed and “shaky” would dare to give the debtor any leniency. He must make proclamation of his claims to the world a-nd sue immediately or take the chances of being postponed to all subsequently accruing creditors. Because, as is claimed here, he would have good reason to know that his debtor might obtain a fictitious credit as a man of means, and be liable to contract debts on the strength of it, when in fact if his debts were paid or the public knew of his real condition, he would not be likely to be deceived.

As we think, the case of Field v. Ridgely, 116 Ill. 424, fully settles the law against the contention of the plaintiff in error. In that case the court uses this language, which is peculiarly ■ applicable to the facts of this case: “We are aware of no principle outside of self-interest and prudence in business that requires the holder of a mortgage to put it on record at any particular time. By not doing so promptly he runs the risk of having it.postponed to junior liens and even of losing the benefit of it altogether. As to subsequent purchasers and creditors without notice such securities take effect from the time of filing,only. As to the complaint that appellees held the notes so long without giving notice of their having theim we perceive no force in it. There is no law or mercantile usage, so far as we are advised, that requires one in business to disclose the state of his.accounts with his customers, and there are manifest reasons why this should not be done, except when the creditor is especially interrogated on the subject by one having a personal interest in knowing.”

We think this decision covers every jjoint urged against the validity of plaintiff in error’s judgments. The application is obvious. Many of the same authorities cited in this case were cited in that to support Field, and were by the Supreme 'Court fully considered and nothing in them was found to incline it to hold as Field’s attorneys contended was the law; and the same principle being involved here we see no reason why the rule announced is not decisive.

This being the only error assigned the decree of the court below is affirmed.

Decree affirmed.


text:
    Frank Langworthy et al. v. Ida Golden.

      Wills — Construction—Legacy—Bill to Enforce Payment■ — Uen upon Testator's Land — Statute of Limitations — Deed—Constructive Kotice.

    1. A legacy to a granddaughter, to be paid out of the testator’s estate when she arrives at the age of eighteen, is a lien upon land belonging to the estate, where the personal property is insufficient.
    2. The statute of limitations does not apply to a legacy.
    3. In order that the record of a deed should be constructive notice of its existence, it should lie in the apparent chain of title to the land in question.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Bureau County; the lion. George W. Stipp, Judge, presiding.
    Messrs. Eckels & Kyle, for appellants.
    Legacies must be paid out of the personal property of the testator unless otherwise expressly provided in the will. Heslop v. Gatten, Ex., etc., 71 Ill. 528; Heslet v. Heslet, 8 Ill. App. 22.
    Even where a legacy is made a lien upon real estate, the personal property must be first resorted to. Willard’s Eq. Jur. 489.
    Before the appellee could have recourse upon the real estate of the testator, it was incumbent on her to show that William Hunter did not leave personal estate sufiicient to pay said legacy. The legatee Is bound by the recital in the will, and from the language used it is apparent that the testator had both money and chattel property.
    The statute of limitations is as binding on courts of equity as on courts of law, and in equity, as at law, the statute begins to run when the cause of action accrues. Angelí on Lim., Secs. 25 — 30; 2 Story Eq. Jur., Sec. 1520.
    It is undoubtedly true that the courts have held that the statute of limitations does not run against certain kinds of express trusts. But that is only when the controversy is between the trustee and the cestui que trust. Angelí on Lim., Secs. 166, 174.
    But that is not this case. If there is any relation of trust existing between the appellee and any of the appellants it is • in the nature of a resultant trust. It becomes so by reason of or as a result of the purchase of the land. But even in case of express trusts the statute begins to run from the time the trustee denies the trust and commences to deal with the property as his own, and the cestui que trust becomes aware of the fact that he is so dealing with the property.
    Mr. John Soott, for appellee.
    It is a well settled principle of law that where a testator gives several legacies and provides for the payment of debts, as in this case, without creating any express trust for their . payment, and then makes a general residuary disposition of the balance of his estate, blending the realty and personalty together into one fund, the real estate will be charged with the payment of the legacies, and there is no exception to this rule. Hill on Trustees (4th Am. Ed.) 360; 2 Perry on Trusts, Secs. 569, 570, 571; Lewis v. Darling, 16 How. 10; Harris v. Fly, 7 Paige, 421; 1 Redfield on Wills, 271, 279; Gallagher’s Appeal, 48 Pa. St. 121; Sherman et al. v. Sherman, 4 Allen, 392.

      A plea of the statute of limitations to an ordinary action for a legacy has never been known; it has long been a settled principle that the statute does not apply in such a case, and courts of chancery have refused to adopt the rule of limitation in suits for a legacy. Angell on Limitations, Secs. 90 and 168; Perkins v. Cartwell, 4 Har. (Del.) 270; 2 Perry on Trusts, Sec. 828; Whiting v. Whiting, 4 Gray, 207.
    Appellee would not be guilty of laches unless her claim was barred by the statute of limitations. Gibbons et al. v. Hoag, 95 Ill. 65; Smith v. Ramsey et al., 1 Gil. 378.
    A legacy will draw interest, generally from the time of payment limited in the will. Loring v. Woodward, 41 N. H. 391; Hill on Trustees, 364.
   Lacey, P. J.

This was a bill in equity filed by the appellee to enforce the payment of a specific legacy claimed to be due her under and by virtue of the will of her grandfather, Wm. Hunter, Sr. It is sought to establish a lien to the amount of the bequest on a certain eighty-acre tract of land owned by Wm. Hunter, Sr., in his lifetime, and of which he died seized.

Erastus B. Hunter, now deceased, was the father of appellee and the residuary legatee and devisee in the will of his father.

Frank Langworthy and J. T. Corbin are the present holders of the legal title to the land through mesne conveyances from said Erastus, the former having acquired title to one forty-acre tract, through conveyances prior to the latter to the other forty-acre tract. Joseph Boolier and Jacob II. Warfield are the mortgagees of said land from the said Langworthy and Corbin, respectively, and are made parties herein.

The third and last clauses of the will of the said Wm. Hunter, Sr., is the one under which the appellee claims the right to establish her lien and said last clause reads as follows: “ I give and bequeath to my beloved wife, Margaret, all the balance of my estate, both real and personal, during her natural life (including the §100 bequeathed to my granddaughter, which is to be paid out of the estate when she arrives at the above mentioned age), and at the death of my wife the property, then both real and persona], to my son, Erastus B., and I constitute and appoint my son, the said Erastus B., and my neighbor, John W. Bush, executors of this my last will and' testament, hereby revoking and canceling all other and former wills heretofore made by me.”

The third and preceding clause of the will gave to appellee §100 to be paid to her when she arrived at the age of eighteen.

The bill and proof shows that there was no personal property left of any considerable amount, and that, while the will was probated, no letters of executorship ever issued and only §20 of the legacy was ever paid to appellee. It also appears that some eleven or twelve years had elapsed since the appellee came of age before the filing of the bill herein.

The court below found the amount of appellee’s legacy of §100 and accrued■ interest thereon from ¡November 5, 1875, less §20 which it found was paid to her, and decreed a lien on said land, and decreed a sale of the whole of the tract or so much thereof as would be sufficient to satisfy said legacy.

That this legacy was a lien on the real estate of the said testator we can have no doubt. The words I give and bequeath to my beloved wife all the balance of my estate, both real and personal, during her natural life, including the §100 above bequeathed to my granddaughter, which is to be paid out of the estate when she arrives at the above mentioned age,” clearly imply that the testator meant that only the residuum should go to the life tenant and then to the residuary legatee after the widow’s death, and that the §100 should be paid out of the entire estate, the real estate as well as the personal estate.

The words granting the life estate to testator’s wife, including the §100,” etc., only mean that she was to have the life interest in the estate, including the §100, to the time áppellee became of the age of eighteen years. Then it was to be paid out of the estate.

If the life tenant failed to pay it, the residuary legatee should do so out of the estate, and in case both failed, the land should be liolden. See construction of similar will in Gardner v. Gardner, 3 Mason, 178. We do not understand that the appellee’s claim is barred by virtue of the 15th and 16th sections of Chap. 83 of the B. S., nor by analogy to said statute. The statute of limitations does not apply to a legacy. Angelí on Limitations, Secs. 90 and 168; 2 Perry on Trusts Sec. 828; Whiting v. Whiting, 4 Gray, 207; and the appellee was not, under the circumstances, guilty of laches. Gibbons v. Hoag, 95 Ill. 45.

We do not find from the evidence that any poi'tion of the land remained in Frances B. Hunter, as is claimed by appellant; hence the point raised by appellant’s counsel that such portion should be first sold, need not be considered. There is no description anywhere shown by which such supposed portion can be identified. Langworthy’s deed from Frances B. Hunter, who held the title to the entire eighty acres at the time, calls for forty acres off the south end of the said tract, and Corbin’s deed, executed by her afterward, calls for the H. E. J- of the FT. E. of same section, being the north part of -the same eighty-acre tract.

Presumably the Langworthy forty was the entire half of the eighty, there being no proof to the contrary, and the other description includes all in the governmental division, be the same more or less.

The appellant also makes the point that as between Lang-worthy and Corbin the land of the latter should be first sold, being in the inverse order of alienation — thus insisting on the rule applicable to mortgages where different parcels have been successively conveyed by the mortgagor. Under the state of the evidence it will not be necessary to inquire whether the rule would be applicable here. There appears no evidence in the record that Corbin had actual notice of the sale and conveyance of any portion of the land to Langworthy at the time of his purchase. And the existence of Langworthy’s deed of record would not be constructive notice of the latter's title.

In order that the record of a deed should be constructive notice of its existence, it should lie in the apparent chain of title of the land purchased by the grantee. The deed from Mrs. Hunter to Langworthy is collateral to the chain of title to Corbin’s forty-acre tract. It was not in the chain of his title, and it was not necessary to examine it in order to verify the title to the tract he proposed to'pnrchase.

Under the circumstances Corbin had no notice that Langwortliy had acquired title to the south half of the eighty. As to this rule of law, we quote Iglehart v. Crane, 42 Ill. 261; Carbine v. Pringle, 90 Ill. 302; Wait et al. v. Smith, 92 Ill. 385; Irish v. Sharp, 89 Ill.261; Rodgers v. Cavanaugh, 24 Ill. 583; Dexter v. Harris, 2 Mason, 531; Manly v. Pettee, 38 Ill. 128.

Notice to Corbin of the deed to Langworthy was necessary even if the lien had been a mortgage, in order to make the rule applicable. Lock v. Fulford, 52 Ill. 166.

We are satisfied with the finding of the court below that the money had not been paid. We think there was no sufficient proof of payment of the legacy, except as to the $20 allowed by the court. Seeing no error in the record the decree of the Circuit Court is affirmed.

Decree affirmed.