text:
    Chicago & Alton Railway Company v. William B. Suffern et al.

      Mandamus — Railroads—Discontinuance of Switch Connection — Coal Mine — Constitutional and Statutory Provisions.

    1. A railroad company can not discontinue an established switch connection with a coal mine merely because the cars of another company may-.be taken upon its line over such switch, thereby endangering its property and the lives of its passengers and employes.
    2. Where a switch connection has been so discontinued a petition for mandamus lies to compel its restoration.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Riohabd S. Tuthill, Judge, presiding.
    Mr. Wm. Brown, for appellant.
    The contract of 1879 can not be made the basis for the writ of mandamus.

    It is the well established law of this State, and of the common law everywhere, that mandamus will not lie to compel the performance of executory contracts. People v. Dulaney, 96 Ill. 503; State v. Zanesville Turnpike Co., 16 Ohio St. 308; High on Extraordinary Remedies, Secs. 25, 321; State ex rel. v. Howard Co. Ct., 30 Mo. 375.

      Even if it should be allowed that a contract might be made the basis for an application for the writ of mandamus, the circumstances in this case are such as that a well founded doubt arises as to whether the petitioners would be entitled to any remedy upon their petition. Granting that the contract was made as alleged in the petition, yet, as in the case of People ex rel. v. Johnson, 100 Ill. 537, “by reason of a complication of circumstances not specifically provided for by the statute, a well founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandannus is not the proper remedy. The riglitin such cases being doubtful, the claimant must resort to some other appropriate remedy to determine it;” so here, since the right to have the particular switch is so far made doubtful by the act of appellees in admitting another railroad to the use of it, that clear right which must be established before a petitioner can have the writ, can not be said to exist in this case. People ex rel. v. Klokke, 92 Ill. 134.
    There is no legal duty existing on the part of appellant to restore the connections between its railroad and the mine of appellees.
    The principle is wrell established that where it is sought by mandamus to coerce the performance of a particular act, “the party applying must show not only the clear, legal right to have the thing done, but he must show affirmatively that the corporation has the power, and that it is its duty, to do the act in the manner sought.” Tap pan on Mandamus, page 11; People v. Hatch, 33 Ill. 69; Commissioners v. People, 66 Ill. 339; Village of Hyde Park v. Thatcher, 13 Ill. App. 613.
    The constitution requires no act upon the part of appellant but simply that it should permit some act to be performed by appellees, and before appellees can complain that they are obstructed in the exercise of that right, they should show that they have taken the steps which are essential to give them the perfect right, and to make the duty of appellant safe, specific and clear. As at common law, so under our statute, the object of memdamus is to compel the performance of some particular act or acts of imperative duty due by clear right to the relator, which he has properly demanded and the respondent has refused. Where the duty is not specific, hut general, and its performance as such involves the exercise of judgment and discretion, the writ will not lie. This is elementary law. Commissioners, etc., v. People, 19 Ill. App. 253; Tappan on Mandamus, 64 and 282.
    When the duty is general, “ depending upon judgment and discretion, the writ will not lie to compel the performance of the duty, and clearly not in a specific manner.” People v. Dulaney, 96 Ill. 503; County of St. Clair v. People, 85 Ill. 396; Com. of Highways v. People, 19 Ill. App. 253.
    Where a discretion “in the performance of duty arises, the courts will not attempt to control its exercise except in a palpable case where a plain violation of law is manifested.” Board of School Inspectors v. People, 20 Ill. 525.
    “It is well settled that whenever the act which the petitioner seeks to have performed requires the exercise of discretion, this remedy will not lie.” Hildreth v. Heath et al., 1 Ill. App. 83; Kelley et al. v. Chicago, 62 Ill. 279; People ex rel., etc., v. Williams, 55 Ill. 178; High on Ex. Rem., Sec. 124; Swann v. Gray, 44 Miss. 392; Mayor v. Rainwater, 47 Miss. 547; People ex rel. v. Metzger, 47 Cal. 524; People ex rel. v. Board of Supervisors, 84 Ill. 303.
    The construction and maintenance of switches and the place of location is necessarily left to the sound discretion of the company. “ The locality where the openings in the main track should be placed is within the'absolute discretion of the company, and can not be re-adjudged by, or at the suit of, a private person resident along the line.” Rorer on Railroads? Vol. 1, p. 490; C. & P. R. Co. v. Speer, 56 Penn. St. 325-335.
    Messrs. John M. Hamilton and Chas. C. Gilbert, Jr., for appellees.
    The doctrine is well established by our Supreme Court that a railroad company will be compelled to receive and deliver freight at places established for receivingand delivering freight upon any of its tracks, of which it is the owner or lessee, or can lawfully be used by it. Vincent v. Chicago & Alton Railroad Co., 49 Ill. 33; People ex rel. Hempstead v. Chicago & Alton Railroad Co., 55 Ill. 95; C. & N. W. Ry. Co. v. The People, 56 Ill. 367; Hoyt et al. v. C., B. & Q. R. R. Co., 93 Ill. 609.

      Mandamus lies to compel a common carrier to deliver grain to any elevator on its line. Chi. & N. W. Ry. Co. v. People, 56 Ill. 365. Mandamus has been granted to compel a railroad company to bnild a bridge. Com. & S. v. Charleston R. R., 7 Met. 70. To re-instate its road after the rails have been taken up. Rex v. Severn & Wye R., 2 B. & A. 646.
    To receive merchandise for shipment. Ex parte Robbins, 7 Dan. & P. C. 566. To restore an abandoned station. State of Conn. v. N. H. & N. Co., 37 Conn. 165. To furnish and maintain stations for passengers and freight at all proper points on its line. State, etc., v. Republican Valley R. R. Co., 17 Neb. 647; Munn v. Ill., 94 U. S. 113; State v. Neb. Tel. Co., 17 Neb. 126; Messenger v. Penn. Railroad Co., 36 N. J. 407.
    “ Duties and obligations imposed by statutes are always enforced by mandamus unless some other mode is prescribed by statute.” 2 Redf. on Railways, 276-277.
    “ And, in a word, to do whatever is required by law.” 2 Redf. on Railways, 278-279; 6 Bacon’s Ab. 428.
    “ The law orders those parties to perform the duty if they build the road.” Lord Denman, C. J., in Reg. v. Trustee Luton Roads, 1 Q. B. 680.
    “When a person desires to be placed in the possession of a right illegally and nnjustly withheld from him, and not damages for the injury done him, the ’writ of manda/mus is a proper remedy to give the thing itself, the withholding of which constitutes the injury complained of.” Mobile & Ohio R. R. Co. v. Wisdom, 5 Heisk. (Tenn.) 125; Moses on Mandamus, 14.
    “All judges and jurists will at once agree that chartered companies are obliged fairly and fully to carry out the objects for which they are created, and that they can be compelled by mandamus to do it.” State v. Hartford & New Haven R. R. Co., 29 Conn. 538; People v. N. Y. C. & H. R. R. Co., 28 Hun, 549.

      “We can not bring our mind to entertain a doubt that a railroad corporation is compelled by mandamus to exercise its duties as a carrier of freight and passengers.” Id., citing Abbott v. Johnson R. R. Co., 80 N. Y. 31.
    “Private persons may, without the intervention of the government law officers, move for a mandamus to enforce a public duty, not due the government as such. This is true in all cases where the defendant owes a duty in the performance of which the prosecutor has a peculiar interest.” U. P. R. R. Co. v. Hall, 91 U. S. 343.
    “ The writ should be to re-instate and lay down again.” Reg. v. Severn & Wye Ry., 2 B. & A. 652.
    It is no sufficient excuse to say that respondent’s road is no longer necessary for the shipment of complainant’s coal. Redf. Law of Railways, 648 ; C., B. & Q. R. R. Co. v. Hoyt, 1 Ill. App. 385.
   Gary, J.

Stripped of their verbiage, the pleadings In this ease present this state of facts: In 1879, under a eontraet between the parties, the appellants constructed a switch by which cars from the line of their road could be taken to a coal shaft of the appcllees-and returned to the line, thereby furnishing facilities for the appellees to send their coal to market. This condition of things continued until 1887, during all which period appellants furnished to appellees, over this switch, such cars as appellees required for the transportation of their coal, when, by another company, another line of road was constructed, to which the appellees obtained access by a switch so constructed that cars of that other company can be, over the switch connected with appellants’ road, taken upon their line. Thereupon the appellants disconnected the switch from their line, and allege as the reason for so doing, that as the cars of the other company could, over that switch, be taken upon their line,it was dangerous to the lives of their passengers and employes, and to their property, to continue it. The appellees filed their petition for a mandamus to compel the appellants to restore the connection, and thereafter furnish ears for their coal, as before, and rely upon the former course of business between the parties, and upon Sec. 5, Act 13, Cons, of 1870, that “ail railroad companies shall permit connections to be made with their tracks so that any * * * coal bank I* * * may be reached by the cars of said railroad,” and upon paragraph 84, Chap. 114, Starr & Curtis’ Bev. Stat.: Every railroad corporation in the State shall furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroads, and at the junction of other railroads, and at such stopping places as may be established for receiving and discharging way passengers and freights; and shall take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and s places5 on and for all trains advertised to stop at the same for passengers and freight respectively, upon the due payment or tender of payment of tolls, freight or fare legally authorized therefor, if payment shall be demanded,” etc.

The appellants say that the provision of the constitution is not self-executing, and, if it were, the manner of connecting is so various under differing circumstances, that mandamus is not an appropriate remedy.

If any degree of certainty as to the manner of connecting in the best way would avail the appellees, the conduct of the parties for the eight years furnishes it; and upon the authority of Vincent v. C. & A. R. R. Co., 49 Ill. 33, if a court of chancery could adapt its process to the relief to which the appellees are entitled, that court would do what appellees now ask to have done, unless the reason for denying it assigned by the appellants is good.

C. & N. W. Ry. Co. v. People, 56 Ill. 365, is authority that if the appellees are entitled to the relief they ask, mamdamus is an appropriate remedy.

And so the whole case turns upon the question whether the fact that a trespass upon the propierty of the appellants might be committed through the facilities furnished by this switch, and thereby the appellants exposed to great injury and loss, is a good cause for discontinuing it. It is obvious that no such trespass can be committed by the other company except over the premises of the appellees, who had it in their power, physically, for eight years, to push cars upon the main line of appellants’ road, but never abused that power.

No motive can be conceived for anybody to do it. The same facilities exist in thousands of places all over “ the land of the free and the home of the brave,” and the nation is not unhappy.

In a case where such large interests are involved, if the real merits of the case are apparent, it is not worth while to spend any time upon the niceties of the special pleading.

The judgment being such as the appellees are entitled to, upon the merits, it is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    John R. Bensley et al. v. Horace L. Brockway.

      Partnership — Action to Charge Several Defendants as Partners — Joint Liability — Discontinuance as to Part — Sec. 35, Chap. 110, JR. S. — Evidence ■ — Motion to Strike Cut — Agency—Admissions—Ratification—Set-off— Instructions — Pleading—Practice.
    1. In an action seeking to charge two or more defendants as partners, Sec. 35, Chap. 110, R. S., only relieves the plaintiff from the burden of proving joint liability “in the first instance,” and leaves the defendants at liberty to disprove it without first denying it by plea.
    2. - In such a case, where the plaintiff discontinues' as to certain of the defendants, it is error to deny a motion to strike out evidence previously admitted of admissions by one of them to charge the defendants as partners.
    3. There can be no ratification of an alleged contract entered into with an agent acting without authority, unless the principal is in possession of a knowledge of the facts.
    4. The statements of an agent are admissible against the principal only where they are part of the res gestee.

    5. In the case presented, the court .should have allowed the remaining

      defendants to file a plea of set-off after the discontinuance as to the others. Prior to that time they could not plead a set-off due to themselves only.
    6. It seems to be unnecessary to change the pleadings upon a discontinuance as to part of the defendants, whom it is sought to charge as partners in an action ex coniraetu.

    7. It is error to give an instruction having no basis in the evidence.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Charles W. Needham, for appellants.
    Messrs. Flower, Eemy & Holstein, for appellee.
   Gary, J.

This action of assumpsit was brought against seven defendants, John R. Bensley, George E. Bensley, M. C. Scoby, Charles R. Bensley, H. O. Hough, D. C. Hough and W. II. Reed. The only plea was a joint plea by all of nonassumpsit.

On the trial the appellee relied for a recovery upon his own testimony as to a contract made by him with Charles R. Bensley for employment of the appellee by the firm of Bensley Bros. & Co. as a salesman, and upon the testimony of the defendant Reed, as to a conversation between himself and Charles R. Bensley in relation to such employment about the time appellee began work.

When appellee rested his case appellants offered to prove that the three first named defendants composed the firm of Bensley Bros. & Co., for which the appellee worked, and that the other four were not members, but only employes of the firm. To this the appellee objected, and his objection being overruled, he excepted, and now assigns the admission of that evidence as a cross-error. It is material to decide now whether that evidence was properly admitted, because, after it was in, the appellee having no rebutting evidence on that subject, was driven to discontinue as to those four, and then the appellants moved to strike out the testimony of Reed, it being only as to a conversation with a person not party to the suit, nor jointly liable with the then defendants, now appellants-This motion was denied, and appellants excepted, and now assign that for error.

Charles E. Bensley, as the case now stands on the record, is to be considered only as an employe of the firm. Whether he had or had not their authority to employ other employes, is a matter disputed between the parties. But if he had such authority, his conversation with Eeed was not had as a part, or in the course, of any business he was doing for the firm, but, at the most, could only be said to be a consultation with another employe upon a subject that there is no claim by the appellee that Eeed had any authority over, if he was not a partner.

“ The statements of an agent are admissible only where they are a part of the res gestee.” Whiteside v. Margarel, 51 Ill. 507; Story on Agency, Secs. 134-137; 1 Greenl. Ev., Sec. 113; Lindblom v. Ramsey, 75 Ill. 246.

The refusal of the court to strike out the testimony of Eeed was therefore error, unless the appellee can maintain that the admission of the evidence that the firm was composed only of the appellants was error, and, therefore, as Charles E. Bensley and Eeed ought to have been held, they should still be considered as partners, and as partners their declarations are evidence against the firm. Seed’s testimony can not be held to be immaterial. Whether logically or not, the jury must have regarded it, when the court refused to strike it out, as tending to show that the appellants had employed the appellee upon the terms he alleged.

The appellee relies upon Sec. 35 of the Practice Act of 1872, as follows:

“In actions upon contracts, express or implied, against two or more defendants, as partners, or joint obligors, or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants, or their Christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar denying the partnership or joint liability, or the execution of the instrument sued upon verified by affidavit.”

He cites a long line of decisions in this State and by the Supreme Court of the United States, in which the construction of this statute was involved, in some of which, as Shufeldt v. Seymour, 21 Ill. 524, and Huntington v. Chambers, in the Third District, 15 Ill. App. 426, the effect of the decision is, that if the defendant does not, by pica, in the manner provided by the statute, deny the joint liability, he is estopped.to deny it by evidence on the trial.

This court has held that the proper construction of the statutes is that it only relieves the plaintiff from the burden of proving that joint liability, “in the first instance,” and leaves the defendants at liberty to disprove it, without first denying it by plea. Davison v. Hill, 1 Ill. App. 70; Garland v. Peeney, 1 Ill. App. 108; Rosenberg v. Barrett, 2 Ill. App. 386.

This distinction has not been discussed in any of the cases cited by the appellee, nor does it appear that any of the courts by which such decisions were made ever had their attention called to it. But in a case involving the construction of another section of the statute, before the last revision, where the arguments of the appellee applied with greater force than to the statute under consideration, the Supreme Court have made and sustained the distinction.

It was provided by the 59th section of the Practice Act of 1845, that “in actions upon bonds, notes and all other writings made assignable by law, in the name of the assignee, the plaintiff shall not be held bound to prove the assignments or signature of any assignor, unless the fact of the assignment he put in issue by plea verified by the affidavit of the defendant, or some credible person, stating that he verily believes the facts stated in the plea are true.”

Comparing this section with the 14th of the same act, which provided that “no person shall be permitted to deny on trial the execution of any instrument in writing * "x" * unless the person so denying the same shall, if defendant, verify his plea by affidavit,” they say: “The language of the 59th section is different from the other. It dispenses with proof of the assignment, before the instrument is admitted, unless the act of assignment is denied by plea, verified by affidavit, whilst the maker,'under the 14th section, is not permitted to deny the execution of the instrument except in that mode. This section does not prohibit the defendant from denying the assignment by rebutting evidence. It only provides that until the assignment is denied in the mode indicated, the plaintiff shall not be required to make the proof. * * * -We think a fair and reasonable construction of these two provisions justifies the distinction that under the one the maker can not deny the execution of the instrument either before or after it is introduced, while under the other he can not deny it before, but may after, its introduction in evidence. The assignment indorsed upon the note is made prima facie evidence of its genuineness, but does not preclude the defendant from rebutting that fact. Or, if he chooses, he may, by denying it by plea, verified by affidavit, throw the burthen of" the proof on the plaintiff in the first instance.” These italics are not in the opinion of the Supreme Court. Lockridge v. Buckolls, 25 Ill. 178.

The language in the section to be construed now, is, proof * * * shall not, in the first instance, be required.” In the 59th section quoted it was “the plaintiff shall not be held bound to prove.” The introduction of the words “in the first instance,” imply that there might come a time in the action when the proof would be required even without the plea; while from the words of the other section it might be plausibly argued that the plaintiff could never “ be held bound to prove ” without the plea.

It follows that the Superior Court did not err in admitting the evidence that the appellants only composed the firm of Bensley Bros. & Co., and that it did err in not striking out the testimony of Beed.

The appellants objected to the case going to the jury on the pleadings as they stood after it had been dismissed as to four of the defendants, and their objection being overruled, they excepted, and now assign that action of the court for error. Bo authority is cited to support this assignment. It has never been deemed necessary, in actions ex delicto, to make any change in the pleadings upon a discontinuance as to one or more of the defendants, nor does there seem to be any need of doing so in actions ess contractu.

The second instruction for the appellee was as follows:

“The plaintiff alleges that the contract was made between him and Charles R. Bensley, who, plaintiff claims, represented the firm of Bensley Bros. & Co., and that the contract was afterward ratified by John R. Bensley, the senior member of that firm.
“ The defendants allege that the contract was made with John R. Bensley, and that Charles R. Bensley had no authority to make contracts for the firm. These are questions of fact for the jury to determine from the evidence in the case. But, upon the question as to the authority of Charles R. Bensley to make the contract, the court instructs you, as a matter of law, that the jury are not bound to take the statement of the witness, John R. Bensley, upon this point as conclusive; but the jury have the right to determine, from all the evidence and circumstances in the case, whether or not Charles R. Bensley had authority to make such a contract. And the court, also instructs you that, even if Charles R. Bensley did not have authority to make the contract, but still, if it was made by him, as plaintiff alleges, and was afterward acted upon by the parties, and ratified by the firm of Bensley Bros. & Co., then it will be binding upon that firm.”

The appellee testified that this contract, made with Charles R. Bensley, was for $lñu per month or $1,800 per year.

John R. Bensley and Charles R. Bensley testified that the contract was made by appellee with John R. Bensley for the salary named, provided his commissions amounted to that salary; but if they did not, he was to receive only so much salary as his commissions should amount to. There was no evidence of any authority for Charles R. Bensley to employ appellee, except that appellee did work for appellants, and he says, under no other than his contract with Charles R. Bensley; and there was no evidence whatever, that John R. Bensley or any other member of the firm knew, while appellee worked for the firm of Bensley Bros. & Co., that he claimed any such contract as he relied upon at the trial.

Without knowledge of the facts, there could be no ratification. G., C. & S. R. R. Co. v. Kelly, 77 Ill. 428; Kerr v. Sharp, 83 Ill. 199.

Instructions upon a hypothesis which there is no evidence to support are, if material, erroneous. The cases to this effect are so numerous and well known, that it would be useless to cite any of them.

The court should have allowed the appellants to file a plea of set-off when the case was dismissed as to the other four defendants. While the case stood against seven defendants, appellants could not plead a set-off due to themselves only. When they became the only defendants such a plea was admissible. Brown v. Tuttle, ante, p. 389.

While a defendant is not allowed to present his defense piece-meal and may not file additional pleas after he has already on the files one or more, yet when the plaintiff so changes his ground as to make a defense of a certain character for the first time available, justice requires that he should be permitted to make it.

For the errors in refusing to strike out the testimony of Eeed, and in giving the second instruction, the judgment is reversed and the case remanded.

Reversed and remanded.


author: Garnett, P. J.

text:
    Archibald Haas v. The People of the State of Illinois.

      Pharmacy Act — Liability of One in Charge of Drug Store — Sec 12.

    1. Where a registered pharmacist is employed and placed in charge of a drug store, he becomes personally liable for the statutory penalty if he permits one who is not a registered pharmacist as assistant to vend drugs, medicines or poisons in his store.
    2. An instruction to a boy, to sell anything in a drug store except poisons, leaving him to judge what are poisons, is a violation of the statute.

      [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. . Elliott Anthony, Judge, presiding.
    Messrs. William H. Sisson and Clarence F. Gooding, for appellant.
    Messrs. John M. Hamilton and Charles C. Gilbert, for appellee.
   Garnett, P. J.

This appeal presents for consideration a question of construction of the act entitled, “An act to regulate the practice of pharmacy in the State of Illinois,” approved May 30, 1881, and in force July 1, 1881. The first section of the act in question provided that it shall not be lawful for any person, other than a registered pharmacist, to retail, compound or dispense drugs, medicines or poisons, or to open or conduct any pharmacy or store for retailing, compounding or dispensing drugs, medicines or poisons, unless such persons shall be, or shall employ and place in charge of said pharmacy or store, a registered pharmacist, etc. Sec. 2 describes'the qualifications of registered pharmacists. Sec. 12 enacts that any registered pharmacist who shall permit the compounding and dispensing of prescriptions, or the vending ■ of drugs, medicines or poisons in his store or place of business, except under the supervision of a registered pharmacist, or except by a registered assistant pharmacist, shall, for every such offense, be liable to a penalty of $50.

Merz Bros., being the owners of a drug store in Chicago, where drugs, medicines and poisons were retailed, compounded and dispensed, employed the appellant, a registered pharmacist, and placed him in charge of the store. In the month of September, 1886, while appellant had such charge of the store, a boy, named Goddard, was also employed there by Merz Bros. He was instructed by August Merz (one of the firm of Merz Bros.), as well as by appellant, that he might sell anything in the store except poisons. Appellant testified that he supposed it was for the boy to judge what were poisons. In the latter part of September, 1886, when appellant was absent, at dinner and the boy was left in charge of the store, an application was made by Charles W: Day, to purchase some poisons, and the boy sold and delivered them to him. The appellant was summoned before a justice of the peace for the recovery of a fine for this alleged violation of the statute. The justice rendered judgment for $50, and the Criminal Court of Cook County', on appeal, rendered a similar judgment, which appellant now seeks to reverse. He claims that as the store was not his, but belonged to Merz Brothers, and as the boy was hired and could be discharged by them only, no penalty can be inflicted on a mere co-employe of the boy. If such was the intention of the legislature, the enactment is a lame and impotent conclusion. - If .the registered pharmacist employed to take charge of the store is not chargeable with the penalty', neither is the owner, if lie is not a registered pharmacist. Thus, any person, who has not qualified himself to discharge the responsible duties required by the statute, may employ a person who has, qualified himself, and the latter may, without fear of the prescribed penalty, permit any boy, or unskilled person employed in the store, to sell the prohibited articles, and the efficiency of the law becomes seriously impaired. A more reasonable interpretation is, that when a registered pharmacist is employed and placed in charge of a store of that character, although he is not the owner of it, the place does thereby become his place of business within the ■meaning of said Sec. 12. The terms of Sec. 1 show plainly that the legislature contemplated cases where persons not having the requisite qualifications, would employ and place in charge of such stores a registered pharmacist, and yet it is supposed that when the penalty, the effective part of the law, is reached, the intention was to devise a plan of escape for an entire class to whom special attention was devoted in the first section. The language of Sec. 12 does not require an interpretation so unreasonable, nor are we disposed to interfere with what’ appears to have been the design of the law; that is, that some person qualified by study and training, should have charge of the retailing, compounding and dispensing of drugs, medicines and poisons, and should be responsible for permitting, in the • place of business of which he has charge, any person, not qualified, to he engaged in work so dangerous to the public.

The law makes it the duty of the owner to have in charge of his store a registered pharmacist. It is the corresponding duty of the latter to take charge, if he accept the employment. Taking charge of the store in this instance means something more than nominal representation of the owner. He is the person who must decide and control as to the sale of drugs? medicines and poisons. The owner can not pretend to pnt him in charge, and at the same time employ an unskilled person in the same store who is independent of him as to such sales. The registered pharmacist who enters upon the charge of such a store, upon such conditions, does so at his peril.

That appellant, in substance, permitted the boy to make such sales, we think is shown by his own evidence. He says he told the boy he might sell anything in the store except poisons, and left him to decide what were poisons. To have fairly complied with the law, he should, at least, have told the boy what the excepted articles were. We can not presume the hoy knew poisons from harmless syrnps, and, unless he did, the saving clause in the instruction given him by appellant, was a dead letter, and failed to modify the sweeping direction to sell.

The judgment of the Criminal Court is affirmed.

Judgment affirmed.


author: Moran, J.

text:
    Charles Butt v. John P. Lee.

      Practice — Defective Record — Motion for Neiv Trial — Clerk's Statements

    1. Where the bill of exceptions contains no motion for a new trial, and no exception is preserved to the overruling of such a motion, an assignment of error that the court erred in refusing a new trial on the ground that the verdict was contrary to the evidence, can not be considered by this court.
    2. A statement in the judgment order, as copied by the clerk into the record, to the effect that the motion for a new trial was overruled and a new trial denied, does not make such motion a part of the record.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Jesse B. Barton, for appellant.
    Mr. Walter M. Howland, for appellee.
   Moran, J.

Appellant brought an action against appellee, alleging a breach of a certain contract, and claiming liquidated damages in the sum of $3,000, as provided by the contract.

The case was tried by a jury, and a verdict found in favor of plaintiff, but the damages were assessed at $50.

The only error assigned on this appeal is that “the court erred in refusing a new trial on the ground that the verdict was contrary to the evidence.”

There is in the bill of exceptions no motion for new trial set out, and no reference whatever to any such motion. In the judgment order of the court, as copied into the record by the clerk, it is stated that the plaintiff’s motion theretofore entered therein for a new trial in said cause is overruled and a new trial denied, but such statement by the clerk does not make a motion for a new trial a part of the record. There is. nowhere in the record any exception preserved to the overruling of any motion for a new trial, and hence the error assigned can not be considered by this court Smith et al. v. Kahill, 17 Ill. 67; Boyle v. Levings, 28 Ill. 314; Duncan v. Chandler, 5 Ill. App. 499; Deitrich v. Waldron, 90 Ill. 115.

The judgment must therefore be affirmed.

Judgment affirmed.


text:
    Cornelius Sullivan v. Conrad L. Niehoff et al.

      Injunctions — Bill for Belief from Judgment — Service—Evidence— Usury — Payments.
    1. The unsupported evidence of the defendant denying service of process, is insufficient to sustain a bill for relief from a judgment on the ground that he was not served.
    2. The declarations of a party are not evidence in his favor.
    3. Where a defendant in a suit at law has neglected to make his defense, he can not have relief in equity from, a judgment which includes usurious interest.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Gabnett, Judge, presiding.
    Mr. A. B. Baldwin, for appellant.
    Ho principle is better established than that so long as any part of the debt remains unpaid, the debtor may insist upon a deduction of the usury from the part remaining unpaid. Saylor v. Daniels, 37 Ill. 331; Farwell v. Meyer, 60 Ill. 367; Driscoll v. Tannock, 76 Ill. 154; Jenkins v. Greenbaum, 95 Ill. 11; Harris v. Bressler, 119 Ill. 467.
    Mr. M. J. Dunne, for appellee.
    The Supreme Court has several times held that a return of an officer can not be impeached, except by the clearest and most satisfactory evidence, and that the testimony of the darty upon whom service purports to have been made, is not sufficient to authorize the setting aside of the return of a sworn officer. Davis v. Dresback, 81 Ill. 395.
    It was held in Leitch v. Colson, 8 Ill. App. 458, in this court, that a return to process by a constable is, as between the parties, conclusive, and cannot be contradicted by parol evidence. To the same effect is Fitzgerald v. Kimball, 86 Ill. 396. In Hunter v. Stoneburner, 92 Ill. 75, it is said: “ It then appearing that appellee was served with process, he must be bound by the officer’s return. It is in rare cases only that the return of the officer can be c mtradicted, except in a direct proceeding by suit against the officer for a false return. In all other cases, almost without an exception, the return is held to be conclusive.”
    A bill to restrain the collection of a judgment should show what the evidence was which authorized the judgment complained of, and the grounds of defense, and the reason, if any, why it was not made, and such other facts as would make a case, or there will not be error in dismissing the bill. Buntain v. Blackburn, 27 Ill. 406.
    Although a judgment at law may be unjust, yet, where a legal defense existed, and the defendant had an opportunity to make the same, and by his own neglect failed to do so, he can obtain no relief in equity. Higgins v. Bullock, 73 Ill. 205; Hopkins v. Medley, 99 Ill. 510.
   Gary, J.

The questions in this ease have been often decided adversely to the appellant. He filed his bill for relief from a judgment at law on the grounds that he was never served with.process; that payments had not been credited, and that usurious interest was included in the judgment. The return shows service, and the deputy sheriff testifies to it; appellant testifies to the contrary, and seeks to corroborate his statement that he was not at the place where the deputy says the service was made, by his own statement that he went to Valparaiso that day, and by the testimony of two other witnesses, one of whom says he saw appellant get on a train that was starting out of the depot about 8 o’clock in the morning, and the other that he saw him in the evening just as the train arrived from the East, and appellant said he “was down to Valparaiso.” The deputy testified that the service was between 3 and 5 o’clock in the afternoon. It was obvious that, leaving out what appellant said to the witness, that “he was down to Valparaiso,” the testimony of the deputy and of the witnesses for appellant, is not inconsistent, and both may he true. His declaration that he “was down to Valparaiso” was no evidence in his own favor that he was there. Brown v. Lusk, 4 Yerg. 210.

The fact of service, therefore, is disputed only by his own testimony. This is not enough. Hunter v. Stoneburner, 92 Ill. 75; Davis v. Dresback, 81 Ill. 393.

' In addition to the legal conclusion, it appears that in fact the appellant knew that he was sued, as before the return day he wrote to the attorney of the plaintiff as follows :

“Yours of the 20th Inst, duly received; contents noted; in reply would say it seems to me to be a rather strange proceeding that you should now have been authorized by Mr. Hiehoff to commence legal proceedings on a note that I have been already sued on. How is this ? Please explain, or is this some more of Hiehoff’s crookedness ? Get two judgments, collect twice more ? I imagine he has been pretty near paid already. When Mr. Hiehbff wants to settle with me square and honest, he has got my address. It looks rather foolish to write a letter threatening a law suit that I have been already served on and that I have put into the hands of an attorney.”

Having neglected any defense that he had at law, he can not noxv come into equity for relief, if usurious interest vras included in the judgment. Smith v. Powell, 50 Ill. 21. Nor if payments xvere not credited. Mellendy v. Austin, 69 Ill. 15

The hill was rightly dismissed.

Decree affirmed.


author: Per Curiam.

text:
    William Skakel v. John A. Roche et al.

      Injunctions — Criminal Prosecutions — Saloon—Ordinances.
    1. Courts of chancery have no jurisdiction to enjoin criminal or quasi criminal prosecutions.

      2. This court affirms a decree dismissing a bill to restrain the mayor and chief of police of the city of Chicago from interfering with the complainant in conducting a saloon, and from prosecuting him under ordinances which he alleges to be void.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon Henry M. Shepard, Judge, presiding.
    Messrs. Edgar Tebhune and A. B. Jenks, for appeliant.
    The ordinance in question is void. The legislature has, by-express terms, delegated to the city council, and the city council alone, the right to license, regulate and prohibit the liquor traffic. ¡Nowhere in said enactment can anything be found which confers any power in the premises upon the mayor. The language of the act is unambiguous, and the most liberal construction of which that language is susceptible will not permit of any conclusion inconsistent with an expressed power in the city council.
    It has been determined by almost every court of final resort in the United States, that the legislature can delegate its constitutional powers to license, regulate and prohibit the liquor traffic to whatsoever depository it ma,y, in its wisdom, see fit to select. But it has always been held that the depository elected by the legislature, and that alone, can act.
    The record in this ease by a practical illustration proves, to the certainty of a mathematical demonstration, that to allow the depository chosen by the legislature (the city council) to delegate to the mayor of the city the power to grant licenses to such persons as he may in his discretion deem proper, and to refuse licenses in his discretion, must be a departure from the fundamental principles of law.
    To say that the city council has nut abdicated and surrendered its power to the mayor, were idle. There is a clear delegation. The city council can no more so do under the pretense of giving the mayor power to inquire into character, etc., of applicants, than it can do so by a general ordinance wherein it boldly states its intention to abdicate. , It can not accomplish by indirect means, what the law will not countenance. Zanone v. Mound City, 103 Ill. 557.
    Without further comment we submit the following authorities on this branch of the case: Cooley’s Const. Lim. Sec. 204, notes 1 and 2; Dillon on Municipal Corp., Secs. 60 and 96; City of East St. Louis v. Wehrung, 50 Ill. 28; City of East St. Louis v. Wehrung, 46 Ill. 392; Kinmundy v. Mahan, 72 Ill. 462; Foss v. Chicago, 56 Ill. 354; In re Wilson, 32 Minn. 145; Cooley’s Const. Lim. 197; Zanone v. Mound City, 11 Ill. App. 334; State v. Fisk, 9 R. I. 94; Thompson v. Schermerhorn, 6 N. Y. 92; Ruggles v. Collier, 43 Mo. 353; Hyde v. Joyce, 4 Bush. 464; Lyon v. Jerome, 26 Wend. 485; State v. Patterson, 34 N. J. 168; Davis v. Reed, 65 N. Y. 566; Thompson v. Boonville, 61 Mo. 282; Clark v. Washington, 12 Wheat. 40, 54; Day v. Green, 4 Cush. 433, 1849; Coffin v. Nantucket, 5 Cush. 269; White v. Nashville, 2 Swan, 364.
    It is well settled that equity will not interpose to prevent criminal prosecution on the sole ground that the individual is-innocent and unjustly persecuted, or because he is being prosecuted under void and unconstitutional ordinances or legislative enactments. He has his remedy at law, and courts of chancery can not be compelled to assume jurisdiction. But where from the face of the record the element of “ irreparable injury” appears, a different rule applies. In such cases equity will protect the unfortunate. There is always a remedy somewhere. If it does not exist at law then it must be in equity, and if it be shown that the remedy at law is not complete and adequate, and does not completely and adequately protect the complainant in his life, his liberty or his property, then equity will take jurisdiction.
    That in the case at bar the court may interpose by injunction, see Wood v. City of Brooklyn, 14 Barb. 425; Third Ave. R. R. v. Mayor, etc., of N. Y., 54 N. Y. 159; Gartside v. City of E. St. Louis, 43 Ill. 47; Butler’s Appeal, 73 Pa. St. 448; Mayor of Baltimore v. Radeche, 49 Md. 217; Page’s Case, 34 Md. 564; Mayor of New York v. Pilkington, 2 Atk. 302; Frewin v. Lewis, 4 Mylne & Craig, 249; Wahle v. Rem-back, 76 Ill. 322; Met. City Ry. Co. v. Chicago, 96 Ill. 620; Goodell v. Lassen, 69 Ill. 145; Cited by Butler’s Appeal, 73 Pa. St.; Philadelphia Ass’n v. Wood, 3 Wright, 73; Owens v. Gross, 105 Ill. 354.
    Messrs. Clabenob A. Knight and John W. Gbeen, for appellee.
   Per Curiam.

Appellant filed his bill in the court below, praying for an injunction to restrain the mayor and chief of police from interfering with him in conducting a saloon, and from criminally prosecuting him under ordinances which he alleges to be void, and from prosecuting more than one of the suits commenced against him and pending until the further order of the court.

The court denied appellant’s motion for an injunction, and it was stipulated by the parties that the hearing of the motion should be considered the final hearing of the cause, and therefore the court entered an order dismissing complainant’s bill for want of equity.

Appellant had no license for the sale of liquor, and because he persisted in selling intoxicating liquors without such license, he was repeatedly arrested by the police and subjected to fine by the police magistrate.

The general rule is well settled, and has been repeatedly announced in this State, that a court of equity will not entertain a bill to restrain prosecutions under a municipal ordinance on the ground of the alleged illegality of such ordinance. The validity of an ordinance of the character involved here can only be tested by appeal from a fine imposed under it. Courts of chancery have no jurisdiction to enjoin criminal or quasi criminal prosecutions. Counsel for appellant admit this general rule, but contend that there are exceptions to it, and insist most earnestly that the facts charged in the bill take this case out of such rule and entitle appellant to relief sought. We have carefully examined the facts as shown by the record, and have considered the authorities cited by counsel in support of their contention, and we are of opinion that no case has been made out which gives appellant a standing in a court of equity. We can not afford the time which would necessarily be taken to discuss fully the cases cited by counsel, and to distinguish those on which they rely from the case here presented.

We must content ourselves with saying that the judgment of the Circuit Court must be affirmed.

Decree affirmed.


text:
    James H. Keeler v. Maurice F. Grace.

      Brokers — Sale of Real Estate — Commissions—Defective Instruction.

    1. Where real estate is placed in the hands of a broker with instructions to sell at a given price and through his instrumentality a party is brought into negotiation with the owner and a sale is in consequence effected by the owner, the broker is entitled to commissions.
    2. It is sufficient to entitle the broker to compensation that the sale is effected through his agency as a procuring cause.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. John C. Soovel, for appellant.
    Mr. Thomas J. Walsh, for appellee.
   Moran, J.

Appellant brought an action against appellee to recover commissions upon the sale of real estate. It appears that appellee, about September 14, 1885, left a description of his property with appellant, who is a real estate broker, to sell at the price of §7,500. Appellant advertised the property and, in November, one Byan called at appellant’s office and inquired what property he was advertising on West 12th Street and appellant told him it was No. 325, and was owned by appellee Grace, and stated the price. Ryan asked appellant Keeler to see Grace and tryto make a trade for some property which Ryan had and Keeler sent for Grace and submitted the offer to him, but Grace, after examining the property, declined to make the trade, but instructed Keeler to try to sell to Ryan for money. Ryan could not pay so much cash as Grace required just at that time. Ryan and Grace met during the negotiations, which ran along into the month of January, and during the time Grace raised the price of the property to $8,000.

On the 4th of May, Grace went to Keeler’s office and stated to Keeler that he wanted to withdraw the property from the market; that he did not want to sell it.

On the same day Grace executed a deed to one Mathew Lamb, conveying the property in question, and it clearly appears that the property was taken by Lamb for Ryan and he conveyed it to Ryan-a short time thereafter.

The purchase price paid to Grace was $8,000. Appellant’s contention was that the property was sold by appellee to Ryan for the same price for which he had it on his books, and that he, by his advertisement and negotiations, brought the purchaser to Grace, and that he was prevented from making the sale only by appellee taking the property out of his hands on the pretense that he was not going to sell it.

Appellee claimed to the jury that he sold his property through another real estate firm, who wrote'to him that they had a purchaser, and that he did not know when he conveyed the property to Lamb that Ryan uTas the real purchaser.

The issue of fact was for the jury to determine, and if the question had been fairly left to the jury the verdict might rest undisturbed. But the court erred in giving to the jury at the request of appellee, the following instruction numbered 2: ‘‘The jury are instructed that to entitle the plaintiff to recover any commissions, it is necessary for him to prove that he was employed by the defendant and acting under the defendant's employment, and was authorized by the defendant at the time to make the sale, and while so acting effected the sale of defendant’s property.”

This instruction does not state the law correctly. If a description of property is given to a real estate broker by the owner with instructions to sell it at a given price, and through the agency and instrumentality of the broker a party is brought into negotiations and dealing with the owner, which actually result in a sale of the property at the price fixed, to the broker’s customers, the broker will be entitled to his commissions, even though the sale is actually effected by the owner himself.

“It is sufficient to entitle a broker to compensation that the sale is effected through his agency as a procuring cause.” Loyd v. Mathews, 51 N. Y. 124.

The instruction, when applied to the facts in this case, as appellant contended the jury should find them, was equivalent to telling the jury to find for the defendant.

Appellant did not claim that he effected the sale of the property, but that he brought the parties together, and that while this property was still on his books a sale of it was negotiated between the parties for the same price that he held the property at.

Appellant was entitled to have the jury pass on the facts under correct instructions. For the error indicated the judgment will be reversed and the case remanded.

Reversed and remanded.


text:
    Henry Eggers v. Seth F. Hanchett, for use, etc.

      Replevin — Action on Bond — Damages—Whether Excessive. ■

    In an action on a replevin bond, this court affirms the judgment of the court below, the evidence as to value being conflicting and the jury having been properly instructed.
    [Opinion filed December 7, 1888.]

      Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, J udge, presiding.
    Mr. A. B. Baldwin, for appellant.
    Mr. O. M. Hardy, for appellee.
   Gary, J.

Debt on replevin bond. The only complaint here is that the damages awarded by the jury were excessive, and the court erred in not granting a new trial, asked for that reason.

The property consisted of a multitude of articles of household furniture, in various stages of “ wear and tear,” and it is impossible for the court, by any review of the testimony, intelligently to fix a value upon it. The jury were correctly instructed that “market value” was the rule, yet it is quite probable they deemed that inadequate compensation to a householder wrongfully deprived of her furniture.

There was conflicting evidence as to the value, and the verdict of the jury is, under ordinary circumstances, conclusive.

Judgment affirmed.


author: Morar, J.

text:
    Sarah Rosenthal v. M. C. Boas et al.

      Injunctions — Dissolution—Damages—Rent—Solicitor's Fees.

    1. Upon .the dissolution of an injunction restraining the prosecution of certain suits before a justice to recover rent, it is improper to assess as damages the amount of rent involved in such suits, unless it appears from the evidence that such rent became lost by reason of the injunction,
    2. Upon the dissolution of an injunction the opinion of an attorney as to the reasonable value of his services, is an insufficient basis for an allowance for solicitor’s fees. Only the usual and customary fee paid, or for the payment-of which the defendant has become liable, should be allowed.

      [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. F. W. Coombs, for appellant.
    The court could not assess damages in favor of both defendants below upon proof of loss or injury to one only, and the record from beginning to end fails to show in anywise any loss as to M. C. Boas, under any circumstances.
    It was error to assess damages for the rent under the lease. Joslyn v. Dickerson, 71 Ill. 25.
    It was error to assess damages for attorney’s fees, under the evidence, there being nothing to show that the attorney had either received or charged anything for his services. Rees v. Peltzer, 1 Ill. App. 315; Jevne v. Osgood, 57 Ill. 340; Elder v. Sabin, 66 Ill. 126.
    It is essential to the validity of a decree in chancery that it should affirmatively appear from the record that it is supported by the proofs. Kingery v. Berry, 94 Ill. 515.
    Mr. August Marx, for appellees.
   Morar, J.

On a bill filed by appellant against appellees impleaded with II. B. Brayton, an injunction was issued restraining the defendants in the bill from proceeding with the prosecution of certain suits then commenced, and pending in justice court against the complainant in the bill.

Appellees demurred to the bill, and their demurrer was sustained and the injunction dissolved and the bill dismissed. Before the order dismissing the bill was entered, leave was given to file a suggestion of damages, and afterward evidence was heard and damages for the wrongful, issuing of said injunction was assessed in favor of defendants in the bill, and against appellant, in the sum of 8264.

The evidence which was offered on the assessment of damages, and which is preserved in the record by a certificate of evidence, shows no proof whatever of any damages to any of the defendants in the bill, except Edmund O. Boas. The decree for damages is therefore erroneous, as there is no evidence to support it. If the decree had been in favor of Edmund. 0. Boas alone, however, it would have to be reversed, as the damages were assessed on a wrong theory.

The injunction restrained the prosecution of certain suits which had been brought in justice court to collect rent alleged to be due to .Edmund G. Boas from appellant. After the injunction was dissolved there was nothing whatever, so far as appears from the evidence, to prevent said Boas from proceeding with said suits to judgment or commencing new ones. The injunction only caused him delay and the payment of some §4 as costs. It does not appear that he lost anything whatever by the delay, or that he could not just as successfully prosecute his suits against appellant after the injunction was dissolved as he could before it was issued. Such being the ease, we are unable to perceive on what theory the amount of rent which it was sought to recover in the suits at law, can he assessed against appellant as damages sustained by said Boas by the wrongful issuing of the injunction. It was, in our opinion, .clearly erroneous to include in the assessment of damages the rent claimed under the lease, and which the justice suits, restrained by the injunction, were brought to recover, there being no evidence to show that said rent became lost to the defendant Boas by reason of the issuing of the injunction. Joslyn v. Dickerson, 71 Ill. 25; Elder v. Sabin, 66 Ill. 126.

There is no sufficient evidence to support the allowance of §50 as solicitor’s fee against appellant.

It appears the injunction was dissolved because of the failure .of appellant to comply with a rule entered by the court requiring her to file an additional injunction bond. The solicitor who appeared for appellees is the only witness as to the solicitor’s fees, and his evidence is that he claims that §50 is a reasonable solicitor’s fee for the service rendered in' the dissolution o£ the injunction.” There is no evidence showing that appellees paid to or had been charged §50 by the solicitor. Jevne v. Osgood, 57 111. 340, is directly in point and controlling. It is there said, “ The attorneys in this case only gave it as their'opinion that the fee they named would be reasonable. Such proof is not proper and sufficient upon wli'cli to base the decree. It should be, what has the defendant paid or become liable to pay, and is it the usual and customary foe paid for such services ? ”

For the errors indicated the decree for damages must be reversed and the case remanded to the Circuit Court.

Iieversed and remanded.


text:
    Laura C. Towne v. The Fire Association of Philadelphia.

      Fire Insurance — Wearing Apparel — Removal from Ordinary Place of Deposit.

    1. Where wearing apparel which is described in the policy of insurance as contained in a certain building, is. destroyed several months after its removal from its ordinary place of deposit to a place where the owner is for the time being residing, it is not covered by the policy.
    2. The ordinary use of wearing apparel in such cases does not include the use involved in long journeys, or protracted visits, during which it may be exposed to risks not contemplated by the insurer.
    [Opinion filed December 7, 1888.]
    •Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    The appellee, by its policy of insurance dated September 80, 1884, insured appellant to the amount of §2,500, against loss by fire on household furniture, wearing apparel, etc., “ contained in the two-story and basement French roof brick dwelling situated No. 1840 Calumet Avenue, Chicago.” At the time the policy was issued, appellant was the owner of the building described, was residing and continued to reside there, until November 1, 1885, when John B. Carson took possession of the building (except a room and closet reserved by appellant for storage purposes) under a lease from appellant for a year. The room and closet so reserved were used by appellant for storing her wearing apparel not in use, until part of it was removed to Ottawa, as hereinafter stated. Shortly after making the .lease in question, she commenced to reside with her father, part of the time in Chicago and part of the time in Ottawa, in both of which places she had a residence. When she went to Ottawa in the fall of 1885, her family went with her. They remained there until February 4, 1886, and at that time her father’s residence at that place was destroyed by fire, together with about $2,500 worth of her wearing apparel, which she had taken from the reserved room and closet before going to Ottawa, and none of which had ever been returned to 1840 Calumet Avenue after she left Chicago for Ottawa.
    This action was brought by appellant to recover from appellee the value of her wearing apparel so destroyed. There being no dispute as to the facts, the court below instructed the jury to find for the defendant. A verdict was rendered accordingly. Plaintiff moved for a new trial; the motion was overruled, and exception by plaintiff.
    Judgment being entered on the verdict, the plaintiff appeals.
    .Messrs. Johit Gibbohs and Charles E. Towns, for appellant.
    It is a well settled principle of law that, where certain risks are expressly excepted, all risks not so excepted are covered by the policy. Insurance Co. v. Transportation Co., 12 Wall. 194; Smith v. Mech. & Trad. Ins. Co., 32 N. Y. 399.
    Where there is any doubt in the conditions restricting the* ■liability of the company, the construction should be adopted most beneficial to the promisee. Hoffman v. Ætna Ins. Co., 32 N. Y. 405.
    The appellant in this case violated none of the express conditions of the policy under which she seeks to recover, and the law will not imply a condition that will defeat her right to recover. Peterson v. The Miss. Valley Ins. Co., 24 Iowa, 494.
    All of the property for which the appellant seeks to recover was contained in the house 1840 Calumet avenue at the time the policy was issued. It was so described in the policy to identify the property, the same as personal property covered by a chattel mortgage is described as contained in a certain house. Tet, no one would contend that the property, if removed from the house described in the chattel mortgage, if it could be identified after removal, would cease to be covered by the mortgage.
    ' The different States where this question has been raised have uniformly decided in favor of the appellant’s right to recover. Peterson v. The Miss. Valley Ins. Co., 24 Iowa, 494; Mills v. Farmers Ins. Co., 37 Iowa, 400; McCluer v. The Girard Fire and Marine Ins. Co., 43 Iowa, 349; Longueville v. The Western Assurance Co., 51 Iowa, 553; Noyes v. The Northwestern National Insurance Co., 64 Wis. 415; Smith v. Merch. & Trad. Ins. Co., 32 N. Y. 399; Everett v. Continental Ins. Co., 21 Minn. 76; Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229.
    The risk was not materially increased by the use to which the appellant put her wearing apparel; the building in which it was destroyed was a detached brick and stone dwelling, with the nearest adjoining structure being some 300 feet distant, while there was a pond of water within a stone’s throw of the rear of the building. The violation of the condition of the policy, that the appellee would not be liable if the risk was materially increased, is the only condition on which the appellee could properly expect to defeat a recovery under this policy. And the evidence shows that that condition was not violated, as the building in which the property was destroyed was more secure and better protected from fire than the building described in the policy, and that the use of the property was of the same character as its use when the policy was issued.
    Messrs. Williams & Thompson, for appellee.
    “ A policy is inoperative except as to goods kept in the ■place designated in the policy.y 1 Wood Fire Ins. (2d) 113.
    “ A policy does not cover property unless it is in the place designated in the policy at the time of the loss, and this rule is strictly enforced in favor of the insurer. * * * Place and location is of the essence of the risk, and the insurers can not be deprived of the privilege of judging for themselves how and where they will take the risk.” 1 Wood Ins. 114, and cases cited; Hartford Fire Ins. Co. v. Farrish, 73 Ill. 166; Harris v. Royal Can. Ins. Co., 53 Iowa, 236; Noyes v. N. W. Ins. Co., 64 Wis. 415.

      “ Briefly stated,, the rule seems to be that the temporary removal of property, in pursuance of a use which is a1 certain necessary consequence ’ arising from the character of the property, without any change in the ordinary place of keeping, will be no defense to an action on the policy.” Lyons v. Prov. Washington Ins. Co., 14 R. I. 110.
    The whole class of exceptions covered by this statement is referred back to the presumed intention of the parties. Dillon, C. J., thus concisely states the principle in Peterson v. Miss. Valley Ins. Co., 24 Iowa, 494:
    “ In effecting this insurance and paying the company for the risk it assumed, it can not be supposed that the plaintiff was to be deprived, upon penalty of forfeiture of his policy, of the ordinary and beneficial use of the property insured.”
   Garnett, P. J.

The contention of appellant is, that the temporary removal of wearing apparel from its ordinary place of deposit, designated in a policy of insurance, for purposes reasonably incident to its use, does not suspend the risk assumed by the insurer. There are respectable authorities which sustain this proposition, as in Longueville v. The Western Assurance Company, 51 Iowa, 553, where the action was to recover the value of wearing apparel which was described in the policy as contained in a certain building in Dubuque, Iowa. At the time of the loss the insured was wearing the garments in the streets of Dubuque. The court held that it must be inferred that the parties to the contract intended the apparel to be used, and hence intended it to be used sometimes away from the dwelling.

The same principle was applied in Noyes v. N. W. National Ins. Co., 64 Wis. 415, where the policy described the wearing apparel insured as contained in a certain house. One of the articles of the insured apparel was taken to a shop for repairs, and was there destroyed by fire on the same day it was received, before it could be repaired in the usual course of business. The court held such repairing was one of the necessary incidents to the us.e and enjoyment of the property, and must be presumed to have been in contemplation of the contracting parties. See also Hawes v. Fire Association of Philadelphia, 7 Atlantic Rep. 159; May on Insurance, 219.

The decision in Annapolis & Elkridge R. R. Co. v. Balto. Fire Insurance Co., 32 Md. 37, is, perhaps, in conflict with the authorities above cited, but, if we adopt the rule of the cases relied on by appellant, it fails to reach her case. The removal of her wearing apparel was not such a temporary removal as the parties may be reasonably said to have had in view, nor was the place of ordinary deposit, described in the policy, continued after she commenced her visit in Ottawa. The ordinary use of the clothing in such cases does not include the using involved in long journeys, or protracted visits, during which the goods may be exposed to risks that the insurer would not have been disposed to incur. It would be unreasonable to infer any intention of that kind.

That the locality and the surroundings of insured property are always considered material by insurers, in accepting and rejecting applications for insurance, is a matter of common information, to which courts can not be indifferent in the decision of questions of this character. Bisks on wearing apparel commonly kept in a building of safe construction might be taken at a low premium; in another less safe, the premium would be higher, and in still another, the risk declined. Certainly, it can not be supposed that a risk on such property, taken on ordinary terms, the place of deposit being described, attended by no circumstances raising an inference that unusual hazards were to be encountered, gives the insurer a discretion in the use of the property, which is not limited, either as to time or distance of removal from the place of deposit so designated.

The treatment of the case by the Superior Court was correct, and the judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in the decision of this case.


text:
    Chicago & North-Western Railway Company v. Annie Dunleavy, Adm’x.

      Railroads — Action.to Recover Damages for Cattsing Death — Viaduct— Repairs — Instructions—Rules—Questions for Jury — Requests for Specia l Findings — “ Material ” Questions.

      1. In an action against a railroad company to recover damages for causing the death of a workman while he was engaged in repairing a viaduct over the defendant’s track, it is held.: That certain instructions were properly refused; and that the defendant had no right to run its trains at any rate of speed, at the point and time in question, without warning to those rightfully engaged in repairing said viaduct.

      2. It is for the jury to say what conduct, or what acts, constitute care or its opposite. Therefore, answers to requests for special findings as to special acts without finding as to the ultimate facts of care or negligence, are merely surplusage.
    3. Requests for special findings which require the jury to answer merely as to acts or omissions which may or may not, in their opinion, be evidence ef care or negligence, and from their answers to which, either way, the court can not say as matter of law whether care or negligence is the result, are not material within the meaning of the statute.
    4. It is the sole province of the jury to determine the weight of evidence and to consider conflicting evidence, without assistance from the court.
    5. It is proper to refuse an instruction to the effect that positive evidence as to the occurrence of a fact is entitled to greater weight than negative evidence regarding it.
    6. It is proper to refuse an instruction which, in effect, tells the jury to believe the witnesses for one party and to disbelieve those of the other party to the case on trial.
    7. An instruction touching an irrevelant matter should be refused.
    8. It is proper to refuse an instruction which correctly states a rule of law applicable to the case, which finds appropriate expression in other instructions given.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. W. B. Keep and W. C. Goody, for appellant.

      Messrs. M. L. Knight and Joseph H. Kennaed, Jb., for appellee.
   Gary, J.

This is an action under the statute for causing the death of John Dunleavy. On the 26th of July, 1886, he, with others employed by the city of Chicago, were engaged, as they had been the day before, in cleaning and painting the iron columns supporting the viaduct by which Blue Island avenue crosses the tracks of appellants. A west-bound freight train of appellants struck and killed Dunleavy a little after half past nine o’clock of that morning.

There is the usual conflict of testimony as to the speed of the train and signals by bell or whistle, but, as the evidence in this case stands, it is suiflcient to say that it made a ease for the jury to decide, which they did, according to established usage.

Appellants asked the court to require the jury to find:

“1. What precaution did the deceased take to inform himself of the approach of the train which caused the injury %
“4. Did the deceased look to ascertain if the train in question was approaching?”
“ 5. Did the deceased listen to ascertain if the said train was approaching?”
The first question the court declined to put to the jury, and they answered, “Don’t know,” as to the other two. The jury were also asked:
“2. If the deceased had looked before the accident could he have discovered the approach of the train in time to have avoided the accident?”
The answer was “Yes.”
“3. If the deceased had listened before the approach of said train could he have discovered the approach of said train in time to have avoided the accident?”

And they answered: If he had concentrated his attention in that particular direction, yes.” As to, the first question, it is apparent that if it had been put the jury must have answered it, as they did 4 and 5, and that because the man who alone had knowledge upon the subject is dead. But the an-

swersto 2 and 3 show what,in the opinion of the jury, he might have seen or heard; and so the question is raised whether, under any circumstances, by running at great speed and giving no signal, a railway may become liable for injury to one rightfully engaged at the place of injury, the railway having notice that the work in which he was engaged was being done, and the party injured taking no precaution by which he would be warned of the approach of the train. Whatever may be said as to what would be proper care on the part of the party injured, and of his duty in that regard, the doctrine of comparative negligence, as established in this State, makes that a question for the jury, under appropriate instructions. If it shall ever become a question before a court having jurisdiction to decide it, whether a statute which requires a jury to do what is impossible, is valid and not inconsistent with the constitutional right of trial by jury, then that court will probably decide the question. At common law the jury have the right to find a general verdict, and can not be required to give any reason for it. 3 Bl. Com. 378. And whether legislation wliich, in effect, requires them to give reasons, and which not only requires unanimity in the result, but in the process by which that result is reached, is consistent with the right guaranteed by the constitution, may deserve consideration.

It is not for the court, but for the jury, to say what conduct or what acts do or do not constitute care or its opposite. Answers, therefore, as to specific acts, without finding as to the ultimate facts of care or negligence, are merely surplusage, and no question which require a jury to answer merely as to acts or omissions which may or may not, in the opinion of a jury, be evidence of care or negligence, bjit from the answers to which, either way, a court can not say, as a matter of law, whether care or negligence is the result, can be in the sense in which the word is used in the statute, “material.”

The action of the court as to these questions was not erroneous, either in refusing to submit to the jury the first question, or in not regarding the answers to the second and third as inconsistent with a general verdict for the plaintiff, or in accepting the answers to the fourth and fifth as sufficient.

The refusal of the court to give the four following instructions, is assigned as error.

“Ho. 15. The jury are instructed, as matter of law applicable to this case, that positive evidence as to the occurrence of a fact is entitled to more weight than negative evidence in relation to it, and that the testimony of witnesses who testify positively that the bell and whistle of the engine of the train causing the injury to the deceased was rung and blown is entitled to more weight than the testimony of persons who testify that they did not hear it.”
“Ho. 17. The jury are instructed, as matter of law, that if you believe from the evidence in this case that both the deceased and the agents and servants of the defendant were guilty of gross negligence, contributing to the injury complained of in this case, your verdict should be for the defendant.”
“Ho. 20. The jury are instructed, as a matter of law applicable to this case, that, under the pleadings in this case, the defendant, the railway company, had a right to run its engine and train at the time and place of the injury to deceased at any rate of speed consistent with the safety of its employes and the property on its train.”
“Ho. 21. The jury are instructed, as a matter of law, that the defendant in this case was only bound to keep and maintain its tracks in such location and condition as to viaducts or columns which supported the same, as might be consistent with the safety of its own employes and of passengers upon its trains.”

“It is the sole province of the jury to determine the weight that evidence should receive, and equally so to consider conflicting evidence, without any assistance from the court.” Frizell v. Cole, 42 Ill. 362.

It is not an infringement of this rule for the court to instruct the jury as to legal principles relating to the credibility of witnesses, but the 15tli instruction went beyond this, and would have told the jury that “ the testimony of witnesses who testify positively that the bell and whistle of the engine of the train in question were rung and blown” was entitled to more weight, etc., without regard to motive or interest of the wit'nesses, intelligence or attention at the time. It went further than to announce a rule and, in effect, told the jury to believe the witnesses for the defendant in the case on trial. T. W. & W. Ry. Co. v. Brooks, 81 Ill. 245.

The 17th instruction is correct and should have been given if it had been the only one covering the point. But if the court has in one instruction given the same, or more favorable to the party asking it, rule for the jury to be guided by, it is not necessary to repeat it. Scott v. Delany, 87 Ill. 146, is enough to cite, but the cases are many.

In the 4th instruction given for appellant, the jury were told that if the appellee had failed to prove, by a preponderance of the evidence, that the deceased was exercising ordinary care and prudence for his safety at the time of the accident, she could not recover. In the 6th, that if by the exercise of the highest decree of vigilance and care, by the deceased, the injury might have been avoided, she could not recover; and the same principle is in many forms stated in others of appellant’s instructions, as well as in those of the appellee.

The 20th and 21st ignore all duty on the part of,the appellant to have any regard for the welfare of the general public. It is true, the place of the accident was not what is commonly known as a street crossing. It had been at one time, but the street had been carried over the track by a viaduct, after the track was laid, if notice may be taken of the common usage that a viaduct is not built until after a crossing has become very dangerous. The structure was subject to decay. The necessity for repairs would occasionally come. The repairs were actually in progress, of which tliei'e was evidence from which the jury might find that the appellants had notice, as the men were at the same work the day before.

The statement that the appellants had the right to run at any rate of speed, etc., implies that there was no duty to warn anybody of the approach of the train — if they were in the exercise of their unqualified right, everybody must keep out of their way. It is not a statement that they had a right to run, by warning persons rightfully in a place where great speed of the train would put them in peril, but an absolute, unqualified and untrammoled right. The 21st probably was not intended to mean what it says, ‘‘that the defendant in this case was only bound to keep and maintain its tracks.”

As to the tracks, it may be conceded that the instruction does state the full duty of the appellants, but that was not the full duty of the appellants as to the whole subject-matter of the suit. If they were only bound as to this one thing, there was no other obligation resting upon them. Besides, there was no question made in the case as to location of tracks, and the instruction was irrevelant to the controversy. These instructions were properly refused.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


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    Isaac J. Wistar v. William A. Herting et al.

      Real Property — Title—Bill to Remove Cloud — Decree—Absence of Evidence or Finding to Sustain — Sale—Contract—Payment—Offer to Return —Liens—Authority of Cleric to Pay Incumbrances.

    1. To sustain a decree upon appeal, the evidence must be preserved in the record, or facts found from the evidence sufficient to warrant the relief granted, must be recited in the decree.
    2. Upon a bill to remove a cloud from the title to certain real estate caused by a contract of sale, it is held : That the decree should have required to be kept good an offer contained in the bill to return a payment on the purchase price to the vendee; and that it was improper to give the clerk of the court authority to decide what were the existing liens and incumbrances, and to pay the same, if the vendee should avail himself of the provision of the decree directing him to pay the balance of the purchase money to the clerk and take a conveyance of the premises to himself.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.

      Messrs. Osborne Brothers & Burgett, for appellant.
    Mr. John 0. Patterson, for appellee.
   Garnett, P. J.

The bill filed in this case by William A. Herting against Julia A. Herting and the appellant, prays for the removal of a cloud upon certain premises, caused by a contract of sale made between William A. and Julia A. Herting as vendors and appellant as vendee.

The answer of Wistar presented material issues of fact, and replication thereto was filed. A decree was entered, directing that Wistar, within thirty days, should fully perform the contract on his part and pay to the clerk of the court the purchase price of the property, and that thereupon the vendors should convey the premises to Wistar; that the clerk pay the incumbrances out of such fund, and hold the balance subject to the order of court; and that, in default of such payment by Wis-tar, the contract be set aside as a cloud on the title to the premises, and declared of no effect as against the vendors and their title.

The burden of proof was on the complainant. He should have proved the case made by his bill. The record wholly fails to show any evidence was heard. To sustain a decree, the evidence must be presented in a certificate of evidence, depositions or master’s report, or the facts found from the evidence, sufficient to warrant the relief granted, must be recited in the decree. Citations of authority on this point would be superfluous labor.

The bill admitted the payment by Wistar of $2,500 by certified check, to be applied on the purchase price, and offered to return the same. The decree should at least have required that offer to be kept good, but, for some reason not apparent to us, it is silent on that subject.

Another error alleged by appellant, is the authority given the clerk of the Superior Court to decide -what were the existing liens and incumbrances, and then to pay them off. If Wistar wished to avail himself of that part of the decree directing payment of the money by, and conveyance of the premises to him, he could not have done so with safety, nor would he have received what his contract called for. He was entitled to a good and merchantable title by the terms of the contract, and that he could exact at the time the purchase money was paid. He could not be compelled to accept the judgment of the cleric as to what was or what was not a lien, nor should he have been required to await his action in paying off the liens.

If this feature of the decree (substantially a decree for specific performance) would be warranted by the pleadings, and evidence had been introduced to support the bill, yet we are clearly of opinion that appellant could not be ordered to accept the legal services of the clerk in protecting his interests in this weighty transaction.

The decree of the Superior Court is reversed and remanded for further proceedings not inconsistent with this opinion.

lieversed and remanded.


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    Charles D. Hews v. William Wall.

      Replevin — Conversion—Ownership—Defective Ver diet.

    In an action of replevin, a judgment in trover for the conversion of part of the goods in question is not supported by a verdict which fails to find the ownership of the property.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Riohabd S. Tuthill, Judge, presiding.
    Mr. G-eobge Spablieg, for appellant.
    Ho counsel appeared for appellee.
   Garnett, P. J.

This action of replevin was commenced by appellee against appellant and one James Fillio before a justice of the peace. Part only of the goods sued for were recovered under the writ. The justice found property in the plaintiff in the goods recovered, and rendered judgment in trover for conversion of the rest. Hews alone perfected an appeal to the Circuit Court, and filed therein, on May 8,1886, his appeal bond. Ho summons from that court to Fillio was issued, nor was his appearance ever filed there, but Wall entered his appearance July 2, 1887. In that state of the record (the transcript of the justice having been duly filed) the cause was called for trial, and verdict rendered finding that the goods taken by the constable were the property of the plaintiff, and finding the defendants guilty of the conversion of other property, not found by the officer, and the value thereof to be §150. Judgment on the verdict was rendered by the court against Hews, impleaded with Fillio. The verdict and judgment did not dispose of the issues in the case. Hews is required to pay §150 to Wall for property whose ownership is not found by the verdict. This court decided such a verdict and judgment to be erroneous in Nelson v. Bowen, 15 Ill. App. 477.

The judgment of the Circuit Court is reversed and remanded.

Reversed and remanded.


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    Edwin T. Hunt v. Charles W. Baldwin.

      Practice — Appeal—Dismissal—Section 67, Practice Act.

    Complaint of irregularity by the Circuit Court in’ dismissing an appeal from a justice for want of prosecution, is too late when made at a subsequent term.

      [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S, Tuthill, Judge, presiding.
    Messrs. Booth & Booth, for appellant.
    Mr. Paths Fittz, for appellee.
   Gary, J.

At the September term, 1887, of the Circuit Court, this case being then pending there on appeal taken by the "appellant from the judgment of a justice of the peace, by filing the appeal bond with the justice, that appeal was dismissed for want of prosecution.

At the following December term the appellant moved the court to set aside the order dismissing the appeal and re-instare the cause, which motion the court denied. This appeal is from the order denying the motion. The appellant claims that the order at the September term was wrong, because the appellee had not, before that order was made, entered any appearance in the cause, or paid any appearance fee, and cited Sec. 68, Chap. 79, R. S.

“In case the appeal from the justice of the peace is perfected by filing the papers and transcript of judgment ten days before the commencement of the term of the court to which the appeal is taken, the appearance of the appellee may be entered in writing and filed among the papers in the case; and if so entered ten days before the first day of the term of the court, the case shall stand for trial at that term.”

In Smith v. Wilson, 26 Ill. 186, the Supreme Court held5 that where the suit, pending on appeal from a justice, was irregularly dismissed for want of prosecution, the court had no authority at the next term to re-instate it.

To take the case out of the rule established by the class of cases of which Smith v. Wilson is one, appellant relies on Sec. 67 of the Practice Act.

“ The writ of error coram nobis is hereby abolished, and all' errors in fact committed in the proceedings of any court of record, and which hy the common law could have been corrected by said writ, may be corrected in the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.”

But if there was error in the action of the court at the September term (upon which point no opinion is expressed), it was error in law, deciding wrong on the facts appearing by the record and proceedings in the cause, and not in ignorance of matters of fact, not appearing on the face of the record, which, if true, prove the j udgment to have been erroneous.” 2 Tidd’s Prac. 1168.

In Fix v. Quinn, 75 Ill. 232, it is decided that complaint of irregularity in disposing of an appeal suit in the Circuit Court (though in that case it was held that the complaint was not well founded) comes too late at a subsequent term, and that the section of the statute last quoted has no application to the case. See also Kilholtz v. Wolff, 8 Ill. App. 371, as to what is error in fact.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    J. B. Fergus et al. v. E. C. Lohman.

      Practice — Appeal hy Part of Defendants from Justice’s Judgment— Sec. 70, Chap. 79, R. S.

    1. An appeal by part of the defendants from a justice’s judgment, when the appeal is perfected by filing a bond with the clerk of the Circuit Court, does not stand for trial until the other defendants have been brought in, or have entered their appearance.
    2. It is improper, in such a case, to dismiss the appeal for want of prosecution, until all the defendants have thus become subject to the jurisdiction of the court.
    [Opinion filed December 7, 1888.]

      Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. John D. Adair, for appellants.
    No counsel appeared for appellee.
   Garnett, P. J.

Appellee sued J. B., George H., Scott, Robert andRobertG.Fergusbefore a justice of the peace, judgment being rendered against al the defendants. All except Robert C. appealed to the Circuit Court, filing their bond with the clerk of that court January 21, 1886. Lohman’s appearance was entered in the Circuit Court May 12, 1886, and at the same time the justice’s transcript was filed. No summons was issued to bring in Robert C. Fergus, nor was his appearance ever entered in the Circuit Court. On September 20, 1887; the cause was reached on the call of the calendar, and none of the defendants being in court in person or by attorney, the appeal was dismissed for want of prosecution, and judgments for costs rendered against the appealing defendants. It is noxv the settled rule that an appeal by part of the defendants from a justice’s judgment to the C'rcuit Court, when the appeal is perfected by filing bond xvith the clerk, does not stand for trial until the defendants not appealing have entered their appearance, or been brought into court in the manner described in Sec. 70, Chap. 79, R. S. Steinborn v. Thomas, 8 Ill. App. 515; Hooper et al. v. Smith, 19 Ill. 53; Stewart et al. v. Peters, 33 Ill. 384.

Until Robert C. Fergus was before the court, the plaintiff could not have been forced to trial, and it is a general rule of practice that a party can not force his adversary to act until he himself is in a condition to be forced to proceed. Hooper v. Smith, supra; Lehman v. Freeman, 86 Ill. 208.

Had the four appealing defendants appeared and proceeded to trial in the Circuit Court, without objection, a different question might have been presented. Callaghan v. Meyers, 89 Ill. 566.

The order dismissing the appeal and ordering costs against appellants is erroneous.

Reversed and remanded.