text:
    James O. McConaughy v. Cordelia A. Mahannah.

      Beal Estate — Broker—Sale by Owner — Broker’s Commission — When Earned — When Due — Measure of Compensation.

    1, Where land, in the hands of a broker for sale, is sold by the owner, such broker or agent is entitled to his commission, if the sale was brought about through his efforts.
    2. Such commission is due when a purchaser is found who buys the property, and the right thereto is not affected by any modification of the terms of payment, or modes of security, or ultimate compliance with the conditions of such sale made between the buyer and seller, different from the terms first given by the seller to the broker.
    8. In such a case the compensation stipulated in the contract fixes the measure of compensation, without regard to whether it is adequate.
    [Opinion filed December 8, 1888.]
    In error to the County Court of Ogle County; the Hon. George P. Jacobs, Judge, presiding.
    Mr. D. W. Baxter, for plaintiff in error.
    Mr. J. C. Seyster, for defendant in error.
    There is a marked distinction between a sale and a contract to sell, a parchase and a contract to purchase. In the one case the title passes, in the other it does not. Jennings v. Gage et al., 13 Ill. 613; Schneider v. Westerman, 25 Ill. 424.
    Ho cause of action had, or could have accrued to the plaintiff at the time of the commencement of this suit, as White had not purchased, and it could not be known then whether or not he would ultimately purchase, and no commissions would in any event be due plaintiff and no canse of action accrue to him until March, 1886.
    A broker employed to sell real estate must produce a person who ultimately becomes purchaser before he is entitled to his commissions. Richards v. Jackson, 31 Md. 250; Stewart v. Murray, 92 Ind. 543; Walker v. Tirrell, 101 Mass. 257; Tombs v. Alexander, 101 Mass. 255.
    Where a person introduced by a broker enters into an agreement to purchase, but he afterward fails to consummate it, the broker will not be entitled to his commission. Kimberly v. Henderson, 29 Md. 512.
    Where a broker procures an offer to be made and advises against it, and subsequently his employer negotiates a-sale at an advanced price to the same person, the broker is. not entitled to his commissions on the sale. White v. Twitchings, 26 Hun, 503.
    . Where the broker opens negotiations but fails to bring the customer to terms, and the employer subsequently sells to the same person at the ¡Drice fixed, he is not liable to the broker for his commissions. Wylie v. Mar. Nat. Bank, 61 N. Y. 415; Chandler v. Sultan, 5 Daly, 112; Bennett v. Kidder, 5 Daly, 512; Dennis v. Charlick, 6 Hun, 21; Schwartze v. Yearly, 31 Md. 270; Vreeland v. Vetterlein, 33 N. J. Law, 247; Lane v. Albright, 49 Ind. 275.
    There is no pretense here by the plaintiff that he did, or was able to sell tliis land for $35 per acre. If he could recover in this case on any theory it must be on an implied contract to pay him a reasonable compensation for the services actually ¡Derformed by him, and as there is no proof of the value of such services the court could not give him judgment.
    Where the plaintiff has rendered services under special contract but not in the stipulated manner, but in a manner beneficial and acceptable to defendant, plaintiff can not recover on the contract, but may upon a quantum meruit. 2 Greenleaf on Evidence, Sec. 104; Addison on Contracts, 409; Bannister v. Read, 1 Gil. 92; Webster v. Enfield, 5 Gil. 298; Eggleston v. Buck, 24 Ill. 262; Taylor v. Renn et al., 79 Ill. 181; Schiller et al. v. McEwen, 90 Ill. 77.
   Upton, J.

The plaintiff in error was a real estate broker residing at Bochelle, in Ogle County. The defendant in error residing in the same county, was possessed of a farm of about 241 acres, and desirous of selling the same. In the month of July, 1885, she called upon plaintiff in error at his office and had an interview with him about selling her farm.

At this interview it was agreed between the parties that plaintiff in error should advertise the farm for sale in each of the two newspapers then published in the said town of Bochelle, he to pay for the advertisement in one newspaper, she in the other. He was to have two per cent, commission on the sale, and was authorized to sell the farm at S35 per acre. He drew up the notices for sale thereof, of which she approved, and in which was stated the price per acre, and it was published in the two papers as mentioned. A few days after such publication Cary J. White called on plaintiff in error as agent of defendant in error, stating that he had seen the advertisement for the sale of the farm in the new'spaper, and made an offer to purchase the same at §30 per acre.

Plaintiff in error immediately went to defendant in error in person, informed her of the offer he had received from White, upon which she immediately went to plaintiff’s office and held a personal interview with White in the presence of plaintiff, speaking favorably of the offer made to White, but called plaintiff in error into his office, and directed him to go out and find one Peter Smith and make him an offer of the farm at the same price of §30 dollars per acre, but to try and get better terms of payment and more money down, than proposed by White. Plaintiff went as instructed, saw Smith, who desired to see his son-in-law and talk with him regarding the matter, of which he informed defendant in error, and she thereupon suspended further negotiations concerning the sale, for that day, with White.

In about two weeks after this interview, White went in person to the defendant in error and completed the purchase of the farm, agreeing to pay §32 per acre therefor; the farm being in possession of a tenant of defendant in error, with right to remain until March 1, 1886, allowing incoming tenant or purchaser to do fall plowing and ditching thereon. The purchaser, White, gave a secured note for a part of the purchase money, due March 1, 1886, went upon the farm, plowed about forty acres of land, and dug about 160 rods of ditch, in the fall of 1885, after he had purchased it. The abstract of the title not being, at the time of making the purchase, written up or completed, a contract evidencing the sale was drawn'up and signed by the parties (vendor and vendee).

The sale of the farm to White being made as stated, the commissions under the contract as claimed by the plaintiff in error were §154.50. In October, 1885, defendant refusing to pay, suit was commenced by plaintiff in error against defendant in error, to recover said amount as commission, before a justice of the peace in Ogle County, and he obtained a judgment for the sum of 8153.60 and costs, from which judgment an appeal was taken to the County Court of Ogle County, a trial had therein, and a judgment rendered for the defendant in error for her costs, to reverse which the suit is in this court on writ of error, and the contention here is whether, under the facts on this record, the plaintiff in error is entitled to recover his commissions stipulated in said contract?

The general rules of law applicable to this class of cases as we understand it, briefly is: That if the land, while in the hands of the broker or agent for sale, is sold by the principal, still, if the purchaser is procured or obtained by the efforts of the agent or broker, such agent is entitled to his commission. Lawrence v. Atwood, 1 Ill. App. 222, and cases there cited; Caster v. Webster, 79 Ill. 435.

The commissions of a broker for the sale of real estate are due when he has found a purchaser who buys the property, and his right to such commissions is not affected by any modification of the terms of payment or modes of security, or ultimate compliance with" the conditions of such sale made between the buyer and seller, different from the terms first given by the seller to the broker. Lawrence v. Atwood, 1 Ill. App., supra; Glentworth v. Luther, 21 Barb. 145, in which last cited case the court says:

“ There can be no doubt as to the extent of the duties to be performed by one who, as broker, is employed to sell real estate. In the nature of things he can do nothing more than find a party who will be acceptable to the owner and enter into a contract of purchase with him,, unless the owner makes him more than a broker merely, by giving him power of attorney to convey the property, and then the employe would cease to be the broker and become the attorney.
“ The law fixes the time as of the date when the broker produces to his principal a party with whom the owner is satisfied, and who contracts for the purchase at a price acceptable to the owner.
“ That the commission (agreed) is due to the broker at that time, is manifest from the fact that when this is done the broker has exhausted his power to act. And having thus done all that is possible for him to do, he certainly has done all that he can be held to have contracted to do; the plaintiff had therefore earned his commissions as soon as the purchaser signed the contract.” See also Kock v. Emmerling, 22 How. 69.

The same principle is announced in Hoyt v. Shepherd, 70 Ill. 309. In that case the agent sold the premises for less than he was authorized to sell for, and upon different terpis, and it was held that he was not entitled to his commissions in the absence of proof of a ratification of the sale by the principal.

The amount of compensation which the plaintiff in error was entitled to receive, if any, was the amount stipulated in the contract — two per cent, on the amount of the sale; the law being, that where work is done under a special contract fixing the price, that must constitute the measure of compensation. Whether the price specially agreed upon was greater or less than the real valúe of the work done makes no difference; the contract alone controls whenever it can be made to apply. Brigham v. Hawley, 17 Ill. 38.

In the view we take-of the case ‘at bar, and for the reasons assigned, we think the plaintiff in error was entitled to recover the full amount of the two per cent, on the price for which the farm of the defendant in error was sold, and that his commissions were due when the contract of purchase and sale was executed by the said White and defendant in error, and that the County Court erred in not so holding, and for that reason the judgment of the said County Court is reversed and this cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Lacey, P. J.

license: Public Domain

text:
    Ida Witzmann v. Paulina Koerber.

      Parent and Child — Illegitimate Child, — Board of — Express Promise to Pay — Adoption—Instruction—Evidence.

      One who supports and cares for the child of another, treating it as his own, without really adopting it, can not recover for its board, in the absence of an express promise to pay therefor. Liability in such a. case will not. attach until the child has been tendered, or notice given that it will no longer be boarded free of charge.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Du Page County; the Hon. C. "W". Upton, Judge, presiding.
    Messrs. E. H. & H. E. Gary, for appe’lant.
    It was not necessary that the plaintiff should prove “ an express promise ” to pay, in order to be entitled to recover. In the first place the rule is different as applied to parent and child and annt and nephew. Relationship tends to rebut the legal presumption of a promise to pay, but of itself it is held not to overcome this presumption, except as between parent and child. Gallagher v. Vought, 8 Hun, 87; Neal v. Gilmore, 79 Pa. St. 421; Erbern v. Lorillard, 19 N. Y. 302; Scully v. Scully, 28 Iowa, 548; Ayres v. Hull, 5 Kan. 419.
    Slight evidence will overcome the presumption that there is to be no compensation. Neel v. Neel, 59 Pa. St. 347; Hays v. McConnell, 42 Ind. 288; Freermuth v. Freermuth, 46 Cal. 42.
    Mr. William Hunn, for appellee.
   Lacey, P. J.

This was a suit in assumpsit brought by the appellant against the appellee to recover for seven or eight years’ board of the illegitimate child of the latter, who was the sister of the appellant.

The right to recover was based on an alleged agreement between the parties that the appellant was to be paid at the rate of two dollars per week for the board.

The appellant supported her claim of an express promise by her own testimony, somewhat corroborated by her sister, Leah Potter. The appellee denied that any promise was made to pay for its hoard, but on the contrary the appellant took the boy as her own and had him christened as her own child, and never demanded or expected pay for his keeping till 1886. The child was taken in 1877. This testimony was strongly corroborated. by the husband of appellee and his brother, and Magdalena and Bettie Uewberger. It abundantly appears that the appellant took the child as her own and adopted it — in fact, that she stood in loco parentis, without any express promise on the part of appellee to pay for the board of the child. The jury would not have been justified in finding anything else by their verdict.

The appellant based her entire right to recover upon an express promise, and states in her brief that “ plaintiff abandoned all claim for clothing,” because “ there was no evidence tending to show a promise to pay for clothing.” Under the circumstances there was no error committed' by the court in submitting the question to the jury for special finding: Was there any express contract between the parties for defendant to pay for the.board and clothing in question?” There were no circumstances surrounding the transactions of the parties from which an implied promise could be inferred. This was so well understood that appellant withdrew her claim for the child’s clothing from before the jury. She relied wholly on an express promise, as we think the evidence clearly shows she was compelled to, and as to the issue on the question of an express promise we are satisfied with the general and special verdict of the jury.

The court committed no error in instructing, under the evidence and circumstances of the case, that an express promise to pay was necessary.

It is insisted by the attorney for appellant that, at all events, the appellant had the right to recover for the board of the boy from July 9, 3886, the day she wrote a letter to appellee by her husband, saying, “Willie is ready to go to Lombard as soon as possible.” We do not so understand the law. In this letter there was no notification that the appellant would no longer keep the child in the same relation as before, but only that she, or the. boy, was willing that appellee might have him, as the latter had, on the 5th July, requested him and was refused.

Appellant should, if she was desirous of terminating her former relation, have either tendered the child or given notice that she would no longer board him free of charge. Chilcott v. Trimble, 13 Barb. 502.

Perceiving no error in the- record the judgment is affirmed.

Jtulgment affirmed.

Judge Upton, having tried the case below, took no part in the decision here.


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    William G. Sargeant v. Jackson Marshall.

      Replevin — Sale of Team — Possession under Contract of Sale — Innocent Purchaser without Notice — Instructions—Estoppel.
    1. An innocent purchaser of properly from a vendee in possession under a contract of sale with an unpaid vendor, without notice, acquires title.
    2. The owner of personal property wrongfully taken from his possession is not bound to pursue it diligently and recapture it, under penalty, in case of neglect, of losing title, if sold to a third party.
    3. The vendee is bound to know the title to personal property when he purchases, and the owner is not estopped, unless he stands by and sees a person about to purchase and makes no claim.
    4. An instruction which ignores the main issue in the case, and is misleading in a serious degree, is not helped by a direction that it should be considered in connection with the other instructions in the case. The instructions should be harmonious and not contradictory.
    5. An instruction which is argumentative and has no sufficient basis in the evidence, is erroneous.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. J. A. McKenzie, for appellant.
    Instructions calling attention to a part only of the evidence are bad; and especially so when, as here, it ignores all there ■ is in plaintiffs case — all evidence and claim that Moore turned the horses over to William G-. Sargeant, and transferred his, Moore’s, title to him — ignores, in fact, the entire transaction which created plaintiff’s right. Ill. Linen Co. v. Hough, 91 Ill. 63; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Logg v. People, 92 Ill. 598; Coon v. People, 98 Ill. 368; Chambers v. People, 105 Ill. 409; Evans v. George, 80 Ill. 51.
    An instruction which ignores the important and turning point in a case is erroneous. Sinclair v. Berndt, 87 Ill. 174; C., B. & Q. R. R. v. Griffin, 68 Ill. 499.
    Instructions must not ignore the main ground of recovery. Thorne v. MacVeagh, 75 Ill. 81; Am. Ins. Co. v. Crawford, 89 Ill. 62.
    When instructions are opposite, it is error. It leaves the jury to select which ones to follow. W., St. L. & P. Ry. v. Schacklet, 105 Ill. 364; Ill. Linen Co. v. Hough, 91 Ill. 63; Cummings v. Leighton, 9 Ill. App. 186; Knowlton v. Fritz, 5 Ill. App. 217; Steinmeyer v. People, 95 Ill. 483; Stratten v. Cent. City H. Ry., 95 Ill. 25.
    Messrs. J. J. TrariucLnn? and G. W. Pbince, for appellee.
   Lacey, P. J.

This was an action in replevin brought by appellant against appellee to recover the possession of two horses described in the writ. The pleas were non oepit, non detmet and property in defendant.

The evidence in the case shows that one Jared Moore purchased the team in question of either James Sargeant, the brother of appellant, or the appellant himself — for the purposes of the trial it is immaterial which — in August, 1886, for $205, and paid $30 of it, and was to give a note to appellant for balance, without interest, due in one year. It seems that if appellant was not the absolute owner or vendor of the team he was the creditor of his brother Janies, and the purchase price of the team was to be paid to him, and he was to receive a mortgage on it to secure the amount, due from Moore.

Moore took possession of the team hut never gave the security as required, and in March, 1887, sold it to the appellee for §125 and delivered it to him, who was not aware but that Moore was the absolute owner of the team. If this were all there was of the case, the appellee would undoubtedly be protected in his purchase, as between him and James Sargeant or between him and appellant. For, in case one holds property in possession under a contract of sale with an unpaid vendor and sells to an innocent purchaser without notice of the condition, such purchaser acquires title to the proqmrty. Young v. Bradley, 68 Ill. 553.

But the claim of the appellant rests upon another important fact, or facts, as he insists and as the evidence tends strongly to show. It tends to show that some time about tho 19th to 22d day of February, 1887, Jared Moore brought hack the team to appellant’s premises and delivered it up to him in payment of the purchase money remaining due, and that it was accepted by appellant and pnt into liis stable, or barn, and remained there some time, and in the absence of appellant, Moore came and took it away without leave; that appellant made some ineffectual attempts to recover the team; that Moore, still retaining the possession of the team, sold it as stated, March 25, 1888, to appellee. Under this state of facts the court instructed the jury in substance for the appellee, by the second instruction, that if James Sargeant sold the horses to Moore in the manner above set forth and delivered possession to him, and that if the appellee purchased them of said Moore as claimed, then it should find for the defendant, thus entirely ignoring the vital point of the alleged re-purchase of the horses by appellant for the unpaid purchase money.

This instruction was most clearly erroneous. It entirely ignored the main issue in the case and was misleading in a serious degree; nor was it helped out by the court adding that it should he considered with the other instructions in the case-

The third of appellee’s instructions setting up an estoppel against appellant in regard to claiming the team as against appellee, was also erroneous. It informed the jury that if, after appellant had taken possession of said horses from Moore by consent, for failure to comply with the original contract of sale, Moore the next day took possession of the horses, and appellant was immediately informed of it, but made no effort to re-possess himself of the horses, but on the co n trary endeavored to collect from Moore by capias, or otherwise, the value of said hoi'ses, and knowingly permitted Moore to retain possession of the same, to exercise control and ownership over the same, claiming them as his own, for a period exceeding one month, and that said horses were at said time wilkin five or six miles of where said Sargeant lived, and if appellee purchased said horses for a valuable consideration from Moore, and he was induced and persuaded to do so by the negligence and inaction of appellant, then the verdict must be for the appellee.

There appears to be no sufficient evidence upon which to base the above instruction, and it is erroneous as matter of law. We find no evidence that appellant knew that Moore was claiming the team as his own. The instruction is also argumentative.

It is suggested that if appellant made no effort to regain possession of the horses but endeavored to collect from Moore by capias the value of the horses, then he would be estopped to claim title. Mow such want- of endeavor, if made, would be no ground for estoppel; it might be evidence more or less strong, according to circumstances tending to show that appellant did not claim title, and it might be no evidence of consequence showing that fact. The various points of negligence would not create an estoppel. It would show no bad faith, or that the action of appellant induced appellee to purchase. Every one is bound to know the title to personal property when he purchases, and the owner would not be estopped unless he stood by and saw a person about to purchase and made no claim; he must act in good faith; but the owner of personal property, when wrongfully taken from his possession, is not bound to pursue it diligently and recapture it, under penalty, in case of neglect, of losing title if it is sold to a third party. If a horse be stolen from the owner, is he bound to pursue the thief diligently at the risk of losing title in case the horse be sold, though he would have good cause to know the thief would claim title? The instruction is clearly erroneous and damaging to the cause of the appellant and may have induced the verdict of the jury.

These instructions are not cured by any proper instructions given at the instance of appellant. All instructions should be harmonious and not contradictory. The appellant’s refused instructions appear to have announced the proper doctrine and should have been given unless they had, in substance, been given, and we are inclined to think they had not.

The appellee’s fourth instruction needs some modification at the end of it like this: “ unless defeated by a valid prior re-sale from Moore to Sargeant, if one was made.”

This would make the sale of Moore to appellee good as against any rights appellant might have to reclaim the property under the conditional delivery by him or James Sargeant to Moore, under the original sale, liable to be defeated by the sale and delivery claimed by appellant in February by Moore to him, if one is established by the evidence before the jury. Otherwise the instruction would not state the case correctly.

For these errors the judgment of the court below is reversed and the cause remanded.

Reversed cmd remanded.


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    Joseph T. Bell v. Charles B. Smith et al.

      Attorney and Client — Suit to Recover Fees — Evidence—Instructions.
    In an action to recover attorney’s fees, it is held: That the evidence, though conflicting, sustains the verdict; and that there is no error in the instructions.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Carroll County; the lion. William Bbowr, Judge, presiding.

      Messrs. Hunter & Eaton, for appellant.
    Mr. James Shaw, for appellee.
   Lacey, P. J.

This was a suit brought by the appellees against the appellant to recover for services claimed to be. rendered to appellant as attorneys at law, in the Supreme Court, at Ottawa, wherein appellant was the appellant and one Johnson appellee, based on an alleged contract between the appellant and appellees to carry the case through the Supreme Court for $100, made May 22, 1884; on the trial below the appellees recovered the sum of $73.95, the balance claimed to be due on said fees.

The causes assigned for error are: First, the verdict was against the weight of evidence; and secondly, the court erred in giving appellant’s second instruction.

The point of difference between the parties on the question of fact was, that the appellant insisted that the appellees were employed by his father, Francis Bell, and not by him, and the latter insists that appellant employed them on his own account. The suit was undoubtedly that of Francis, being carried on in his son’s name for his benefit, the son being the nominal party only.

But the appellees both testify that the contract was made with appellant in his own behalf, and that they looked to him and not the father for their fees. On the contrary, the appellant and his father swear that the contract was made with the father and not the son, and that appellees so understood it. The appellant’s evidence was somewhat corroborated by letters addressed by the appellees to Francis, asking for money for the purpose of carrying on the suit, and for fees. In fact, the evidence was conflicting, the'testimony on one side being to be weighed against that on the other. It was the province of the jury to decide between the two, and it found, by its verdict, on the side of the appellees. Whether this court would so have decided as an original question is not material. The question is, did the jury have sufficient evidence on which to base its verdict? We are of the opinion it had. The verdict, at least, is not so manifestly against the weight of the evidence ás that this court would be justified in interfering to set the verdict and judgment aside. As to the complaint of the appellees’ instruction, we can only say we do not think it just. The instruction was, in substance, if the jury believed from the evidence that, “if the plaintiffs told the defendant that they would take the case to the Supreme Court for §100, and that he replied they could go ahead and take the case up, and the plaintiff did take the case to the Supreme Court, then such language would amount to an express contract on the / part of the defendant to pay the plaintiff §100, even though defendant did not say, in express words, 61 will pay you §100 for taking the case up,’ or did not, in so in :ny words, promise to pay them §100 for that service.”

According to the appellee’s testimony, this was.the language used when the contract was made, and that as appellant signed the appeal bond he said, “ if we have success iny father will get the benefit of it;” and this was the first time (that is, after the words above recited were used,) that appellees knew he was prosecuting for the benefit of his father.

The instruction was simply based on appellees’ evidence and theory of the case. The appellant testified that he never made any agreement whatever to pay their fees.” “ When I was going out of the office Smith says to me, ‘ Shall we go ahead with this case?’ I said,1 You can 'do whatever father wants you to do, for it is no case of mine.’ ” This, in substance, is corroborated by the father:

We think the instruction, under the state of the evidence^ was not misleading. If, under the circumstances, the words were used as appellees testified, undoubtedly there was a contract on part of appellant to pay the fees. This was for the jury to decide under the instructions. The words used in the instruction are wholly denied by appellant and his witness. The words, if spoken, show that he was not acting as the agent of his father, but for himself. The appellant was favored by the court by full instructions on his part on his theory of the case. The instructions taken together, we think, present the case fairly. There being no error in the record, the judgment is affirmed.

Judgment affirmed.


text:
    John A. Roebling’s Sons Company v. The Lock Stitch Fence Company.

      Sales — Contract for Future Delivery — Breach of — Tender—Instructions — Interest—Evidence.
    1. Where one contracts to deliver personal property in the future, at a certain price, and the vendee agrees to receive and pay for it at such time in accordance with the agreement, but afterward, and before the time arrives for delivery, repudiates the contract and gives the vendor notice of his intention not to perform it, the latter may accept such notice and elect to consider the contract at an end. and sue at once to recover damages for the breach, or he may decline to consider the contract annulled, and demand its performance on the part of the other party.

      f '2. Where a certain commodity is sold to be delivered in installments, the j failure of the seller to deliver the quantity required as to any installment Ogives the purchaser the power to rescind the entire contract.
    8, Although the mere formal act of tender or offer to perform on the part of the vendor may be dispensed with where the vendee gives notice that the goods will not be accepted even if tendered, the vendor must be in position to perform if the notice be recalled.
    4. One can not complain of instructions which, though erroneous, are favorable to himself, nor of a refusal to give an improper instruction.
    5. In the case presented, evidence as to the amount which the refused wire brought at public auction was properly excluded.
    6. It seems that goods, when tendered, .must be in condition for immediate delivery, and not subject to any lien for freight, storage, or other charge which it is the duty of the vendor to liquidate.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Geobge W. Stipp, Judge, presiding.
    Messrs. C. W'. Bjroavn and F. Bennitt, for appellant.
    The vendor of personal property, in a suit against the A7endee for not taking and paying for the property, may sell the same, and recover the difference bettveen the contract price and the price of re-sale. Bagley v. Findlay, 82 Ill. 524; Saladin v. Mitchell, 45 Ill. 84; Ullman v. Kent, 60 Ill. 272; Benj. on Sales, 3d Ed., p. 777.
    Where goods are sold, to be delivered in the future, the vendee can not create a breach of the contract by giving notice that he will not receive the goods. Kadish v. Young, 108 Ill. 170; McPherson v. Walker, 40 Ill. 371; Chamber of Commerce v. Sollitt, 43 Ill. 519.
    The rule is, if one bound to perform a future act, before the time for doing it declares his intention not to do it," this, of itself, creates no breach of his contract; but, if this declaration be not withdrawn when the time arrives for the act to he done, it constitutes a sufficient excuse for the default of the other party. McPherson v. Walker, 40 Ill. 371; Cummings v. Tilton, 44 Ill. 173; Benj. on Sales, 3d Ed., p. 748, Sec. 760.
    In actions upon contracts it is necessary to aver in the declaration performance, or an offer to perform, on part of the plaintiff, but it is never necessary to prove the performance of a condition which has been waived or dispensed with by the defendant. A condition once waived is gone forever, and the performance of it can not thereafter be required. McPherson v. Walker, 40 Ill. 371.
    Messrs. Geo. S. House and Fey & Babb, for appellee.
    The refusal of appellee, April 27th, to further perform, did not of itself constitute a breach of the contract. It gave appellant an election to terminate the contract, or to continue it in force. Electing the latter, as it did April 29th, it kept the contract alive for the defendant, as well as itself, and was bound to show such performance on its part as would have been required if the defendant had never refused to perform. Johnstone v. Willing, 55 L. J. R. 162; S. C. L. R. 16 Q. B. Div. 470; McLellan v. Winston, 12 Ontario Rep. 439; Kadish v. Young, 108 Ill. 170; Frost v. Knight, L. R., 7 Exch. 111; Dingley v. Oler, 117 U. S. 503 ; Smoot’s Case, 15 Wall. 36; Benjamin on Sales (4th Ed.), Sec. 568; Norrington v. Wright, 115 U. S. 205; Cleveland Rolling Mill v. Rhodes, 121 U. S. 264; Brigham & Co. v. Carlisle, 78 Ala. 247.
    Appellant failed to show such performance as its election required, in that it had no wire ready for delivery from April 27th till May 24th. Norrington v. Wright, 115 U. S. 188; Filley v. Pope, 115 U. S. 213; Pope et al. v. Porter et al., 102 N. Y. 371; Salmon v. Boykin, 6 Cent. Rep. (Md.) 485 ; Hime v. Klasey, 9 Ill. App. 166.
    The instruction for interest upon $234.93 was properly refused. Granting that such sum was due, yet, as the instruction was for interest only, in case the jury found “ such sum or sums were unreasonably withheld,” it was properly refused, because there was no evidence upon which to base an instruction upon that ground. Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, 13 Ill. 592; Aldrich v. Dunham, 16 Ill. 403; Devine v. Edwards, 101 Ill. 138; West Chicago Alcohol Wks. v. Sheer, 104 Ill. 589; Moshier v. Sheer, 15 Ill. App. 342.
    The instruction was properly refused, because it only required the jury to find'that the money was “unreasonably withheld,” when it should have required them to find both unreasonable and vexatious delay in payment. Devine v. Edwards, 101 Ill. 138; West Chicago Alcohol Wks. v. Sheer, 104 Ill. 589.
   Lacey, P. J.

The appellant, a corporation duly organized under the incorporation laws of the State of Hew Jersey, sued the appellee, a corporation duly organized under the laws of the State of Illinois, in an action of assumpsit for breach of contract. The appellant was engaged in the manufacture and sale of fence wire, located at Trenton, Hew Jersey, and the appellee was engaged in the preparation of the wire for fencing by putting barbs on it, and also in the sale of such wire fencing material, land was located at Joliet, Will county, State of Illinois. On the 7th day of March, A. D. 1885, the appellant and appellee entered into a contract for the sale by the former to the latter of five hundred tons of galvanized wire by means of a proposition made by appellee in a letter, dated March 3, 1885, at Joliet, and sent to appellant at Trenton, Hew Jersey; the proposition being accepted by it on the 7th March, 1885, by means-of a letter sent to appellee at Joliet in reply.

By the terms of the proposition and acceptance the wire was to be in porportion of 78 per cent. No. 12 and 22 per cent. No. 13, at a price of 83.65 per 100 lb, delivered in Joliet between the 3d of March and J uly 1st, at the rate of twenty tons per week, until appellee should order differently. The shipment of twenty tons per week was to commence after filling an old order shipping the same quantity per week. The payment was to be made for the wire in sixty days from receipt of the wire, with two per cent, off for cash paid in ten days at the option of the appellee. As we understand the evidence (deposition of Boobling), the first shipment of tiie wire on the last contract was made March 18, 1885, in car No. 5117, in which was a total of wire of 40,136 lb, of which 20,9981b applied on the last contract, and 19,138 were for the completion of a former contract, the wire arriving in Joliet seven days later. The appellant then continued to ship the wire to appellee and it to" accept it under the contract till the amount of 240,173 lb wore received, the last shipment of such amount being April 21, 18S5, arriving on the 27th of the same month. That on the 29th of the last named month the appellees sent a telegram to appellants that it would take no more wire even if shipped; that it could not use the quality. This telegram was confirmed by letter of the same date also refusing to accept any more wire on account of the bad quality of the wire already shipped. To this telegram and letter the appellant replied that it could not agree to stop shipment, that all the wire had been tested before shipment. The appellee also, by telegram of May 18, 1885, in reply to appellant’s letter of May 15th, says, that the letter was received and that it “ will not receive wire if shipped; ” and answer was received from appellant saying it would not stop shipping and insisting on holding appellees to the contract. The total amount the appellees refused to receive was 759,8961b. The amount that was refused was sold in Joliet at public auction and brought §3,293.86 less than the contract prrice, this being about the amount of the decline in the pirice of wire which took place after the contract was entered into. There was a balance due the appellant on the amount of wire received under the contract of $234.93, for which amount only it recovered, without interest, in the court below, the claim for damages on account of the refusal of the appellee to receive the balance of the wire being rejected by the jury. From the judgment this appeal is taken.

There is no complaint by the appellant of any action of the court in the matter of the instructions, except, perhaps, as to its refusal to give an instruction asked for, pertaining to the question of interest on the balance due on the wire received by appellee. The instructions on the main issue concerning the breach of the contract by appellee were as favorable for the appellant as it could, or in fact did, ask.

The second given instruction on behalf of the appellant informed the jury that if appellee notified the appellant “that it would not receive any more wire under the contract and the appellant should not ship any more wire thereunder, and that appellee would not receive it if shipped, and if such directions were never rescinded or withdrawn, that if, at the time appellant was ready and willing to perform the contract on its part, etc., then appellant had a right to recover damages;” and, in addition to the above instruction for appellant, by the fourth instruction, the jury was told that “then such notice on the part of appellee would excuse appellant from an actual tender of the wire so bargained and sold, and that it is sufficient under the issues in this case, upon this question, for the appellant to show such readiness, ability and offer to perform the contract on his part;” i. e., that it was able to perform when it received the notice. The court on its own motion gave an instruction embodying about the same law. We are of opinion that the court erred in those instructions in favor of the appellant and in no wise against him.

The main questions of law involved in this case have been thoroughly considered and settled in Kadish et al. v. Young et al., 108 Ill. 170, and we shall do no more than attempt to state what we understand the rule to be as there announced in such cases. As we understand the law the rule is that where one contracts to deliver an article of personal property, in the future, at a certain price, and the contraeteo agrees to receive and pay for it at such time in accordance with the agreement, and afterward, and before the time arrives for delivery, repudiates the contract as far as he is able and gives the contractor notice of his intention not to perform it, the latter may accept such notice and elect to consider the contract at an end and sue at once to recover damages for the breach, or he may refuse to allow the contract to be annulled and demand its fulfillment on the part of the other party.

In case he pursues the latter course the contract is regarded in force the same as though no notice of abandonment had ever been given by the other party and he must hold himself ready to perform the contract at the time it should have been performed according to its terms, as, at any time before or at the time of fulfillment arrives, the contractee may change his mind and demand its fulfillment by the contractor. In respect to the barley contract which was the subject of the decision in Kadish et al. v. Young et al., supra, the court say: “It is obviously absurd that it could have been appellee’s (the contractor’s) duty to have sold barley-in December to other parties, which it was their duty to deliver to appellants and which appellants had a legal right to accept in January,” although they had given notice they would not accept appellee’s refusal, in that case choosing to hold the contract in force.

If we understand it, the above instructions, given for appellant, told the jury if the appellant was, at the time of receiving the notice, ready and willing and able to perform, and offered to perform the contract on its part, and the notice never was withdrawn, then, as stated in the second instruction, appellant could recover-, and as also stated in the fourth, neither was any tender of the wire necessary, as the contract contemplated.

These instructions would have been correct if the appellant had, upon receiving the notice, chosen to allow the contract to be annulled according to the notice and had been suing fertile breach of it occurring at that time, but that was not the case; it was attempting to sue on the contract the same as though notice had never been given, and the breach had taken place weekly for failure of appellee to receive and pay for the twenty tons of wire per week. The appellant should have been prepared at Joliet, where the delivery was to be made, to deliver the twenty tons each week, and offered to deliver the same unless excused from so doing on account of the notice previously given by appellee that it would not accept it. Tnougli there' was an error in the appellant’s instructions it was in favor of it and, of course, it can not be heard to complain.

The only point, except in reference to the refused instruction concerning interest, is as to whether there was sufficient evidence, or rather want of evidence, to sustain the verdict of the jury. The main point of the defense rested on the claim that appellants had no wire at Joliet ready for delivery to appellees under the contract from April 27th till May 24th. The first named date was when the last car load of wire arrived at Joliet, and the last named date when the next car load arrived. It appears during that time the appellant had no wire in Joliet from which it was able to deliver the twenty tons per week. This time was about three weeks and six days. It is also insisted that from May 24th to June 26th all the wire offered to appellee was subject to a freight charge of §399.94, which was not paid until the latter named date, and that until the freight was paid appellant could not deliver it. It appeared that the appellees had received some six shipments of the wire from March 25th to April 27th, both dates inclusive, making about 120 tons, which was received on the contract and must be regarded as a fulfillment of it up to the latter date, when the appellee’s notice to quit shipping was given. It is insisted by appellant that the first shipment, received on March the 25th, can not count on the fulfillment of the above contract because the old contract was not completed till that date, and the fulfillment was to commence on the new after the old was completed; but we can not view the matter in that light, for the wire was tendered and accepted on the new and the old was completed at the same time. The parties by their action had given this construction to the contract to be the true one as to the date to commence, and the jury had the right to find that this was the proper one. From the time the contract was repudiated, April 27th, until May 24th, there was no wire in Joliet out of which the- tender, could have been made by appellants, leaving a space of three Í weeks’ delivery that the appellant was not in condition orj able, in Joliet, to make, even in case it had been called upon at any of the times when the wire was due to make the | delivery. The appellant argues that if the shipment was 1 made of twenty tons per week within the time required, that that fulfilled the contract as to the delivery. We do not so read the contract. The letter of acceptance written by ap-1 pellant is that the wire was to be delivered, not shipped, at the1 rate of twenty tons per week — delivered in Joliet. But even if that were so, the quantity was not even shipped within the time required by the contract. The Jaw appears to be well settled that in a case like this, where a certain commodity is sold to be delivered in installments and received in that manner, the failure of the seller to fulfill the contract in the particular of not delivering the quantity required as to either of the installments, gives the purchaser the power to rescind the entire contract. In the contract of merchants, time is the essence of the contract. Norrington v. Wright, 115 U. S. 188, and cases cited; Filley v. Pope, 115 U. S. 219. It is contended by appellant, it was not necessary to tender, or even to be prepared to tender, the wire to the appellee until he had given notice of his willingness to accept it after the notice that he would not, and the case of McPherson v. Walker, 40 Ill. 371, is confidently relied on to support such claim.

The instruction sustained by the Supreme Court was this: If the defendant gave the plaintiff previously to understand that he would not accept the oats, the commodity contracted to be delivered on the day fixed by the contract, “then an offer or tender of the oats by the plaintiff is excused and the jury must find for plaintiff.” It is questionable whcthei this case is not overruled by the ease of Kadish et al. v. Young et al., supra; at all events the court in its opinion in the latter case does hold that the seller must be prepared and ready to deliver the goods until after the day of performance is past in case the purchaser changes his mind and notifies him he will take them; hence, for that very reason, the vendor is not required to re-sell in order to save the purchaser from damage, or do any other act to save him. It may be, and we are inclined to so hold to make the two opinions harmonize, that while the notice remains standing and unrecalled, given by the purchaser, that he will not accept even if the goods are tendered, the mere formal act of tender or offer to perform may be dispensed with; but we can not believe that the seller is relieved from being in readiness on the day when the delivery is to be made, to fulfill by delivering the goods, if he gets a notice from the vendee that he will take them. The theory of the law is that the contract is kept alive and in force for the benefit of both parties and this alone is done at the option of the seller. It follows, therefore, that he, at least, must be ready to perform on his part. If he does not want to perform the contract he must treat it as rescinded at the time of getting the notice or before the notice is withdrawn-The declaration in this case goes on the theory that the contract was alive and that the goods were tendered and the appellee refused to accept and pay for them.

As to the other point, in regard to the freight charges not having been paid, we find support for appellee’s claim that the goods must be in a condition for immediate delivery, and all freight paid when the tender is made, in Dunham v. Pettie, 4 E. D. Smith, 500; but whether in a case like this, where, perhaps, the matter of a formal tender is dispensed with, we need not decide, as its decision is not necessary for the determination of the case, and we therefore leave the question unsolved so far as this court is concerned. We think, however, that the appellant should have had the wire present in Joliet at the time the resj)ective deliveries should have been made, so that in case appellee had desired, it could have been immediately delivered. The evidence, as we think, sustains the verdict. As far as the question of interest is concerned we perceive that it is a small matter, about $20, and had it not been for the fault of the appellant in not asking the proper instruction in regard to interest being payable on all written contracts from the time they are due, the jury would have been properly instructed. But instead of that an inaccurate instruction was presented to the court seeking to recover on the grounds of “ unreasonable and vexatious delay in payment ” of the balance due on the wire already delivered ; thus asking the court to present an immaterial matter to the jury and that in an erroneous manner, even had such rule been involved. It was sought to recover interest on account of unreasonable delay in payment without adding “ and vexatious.” The court was not bound to give the instruction as asked, and no oth.er on the subject was presented. The exclusion by the court of the evidence pertaining to the amount the refused wire brought was not error, as it was sold on credit, and, under the state of the evidence and verdict, it could not have harmed appellant even if proper. There was evidence of a large decline in wire and nothing recovered.

The judgment is therefore affirmed.

Judgment affirmed.


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    Joseph Condell v. G. Snyder et al.

      Contract for Sinking Well — Action to Recover Balance — Conflict of Evidence — Instructions.
    In an action to recover a balance claimed to be due on a contract for sinking a well, this court declines to interfere with the verdict, the evidence being sharply conflicting and there being no error in the instructions.
    [Opinion filed December 8, 1888.]
    Appeal from the County Court of Lake County; the Hon. Fbanois E. Olabke, Judge, presiding.
    Messrs. Whitney & Upton, for appellant.

      Mr. Charles T. Backus, for appellees.
   Lacey, P. J.

This was a suit originally brought before a justice of the peace to recover the contract 'price claimed to be due to appellees for sinking a well on the farm of the appellant, and upon appeal tried in the County Court. In the County Court the case was tried by a jury and the verdict and judgment were for appellees, for §60 and costs. From such judgment this appeal is taken.

The appellees contended that the contract was to furnish a well that supplied stock water; that it was not warranted to be free from sand; that they did sink such a well, and that appellant refused to pay them because it was not clear from sand.

The appellees further contend that they could have procured pure water by going deeper, but appellant refused to allow them to do so unless at their own expense. The well was to be dug at so much per foot. On the other hand, appellant contends that the well was to furnish plenty of good water free from sand; that the well was to be sunk in an old well and so much paid for piping the old well and so much for sinking and piping further; that appellees guaranteed to procure good water without sand for 100 or more cattle; that the pump could be worked with the wind-mill appellant then had; that one-lialf was to be paid down and appellant to take the chances, the balance to be paid when the work was completed. The one-half was paid as agreed. The appellant contended that the well was valueless on account of the sand that was pumped up. The evidence in regard to the terms of the contract and the finishing the well in accordance therewith was conflicting-The case of appellees was supported by their own testimony, and two other witnesses.

If what they testified to was true, they had a right to recover. On the other hand, the appellant supported his side of the case by his own testimony and that of his hired man, Metzner. Thus there was a sharp conflict of the- evidence. Under the circumstances it was for the jury to decide, and its verdict should not be disturbed unless clearly against the weight of the evidence. We can not say that it is so. Some complaint is made in regard to the appellees’ instructions, but on examination we find them substantially correct, though probably not in the best form. The appellant’s given instructions were full and all that could be asked, and the refusal to give others was not error. Seeing no error in the record, the judgment is affirmed.

Judgment affirmed.


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    American Central Insurance Company v. Lawrence Clarey.

      Insurance — Condition—Vacancy—Negligence.
    In an action on a policy of Are insurance, it is held: That, under a clause providing that the policy should become void if the house should become vacant or unoccupied, the owner can not be charged with laches in regard to a vacancy occasioned by the removal of his tenant on the day of the fire without the knowledge of the plaintiff.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Knox County; the lion. John J. Glenn, Judge, presiding.
    On the 27th day of May, 1886, the American Central Insurance Company issued tlxe policy of insurance offered in evidence, insuring the dwelling of Lawrence Clarey for the period of one year, the property insured being described in the policy as “ a dwelling house occupied by a tenant.” Ori the 19tli day of April, 1887, at about 10 o’clock p. m., the insured premises were destroyed by fire. At the time of the fire the house was vacant and unoccupied.
    Prior to the fire the house had been occupied by one Elijah Sprinkle, a hired man in the employ of Lawrence Clarey. Sprinkle, however, moved out of the house between the hours of eight and ton o’clock in the forenoon on the day the fire occurred, and as the proof shows, without the knowledge of the appellee, the house remaining vacant and unoccupied up and until it was destroyed. Under these facts, appellants suggested to the court the following proposition of law, which was by the court marked “ refused”:
    “If the court finds from the evidence that the premises insured became vacant and unoccupied on the 19th day of April, 1887, about the hour of 10 o’clock a. m., and that they were destroyed by fire about the hour of 10 o’clock p. m. of said day, and at that time they were also vacant an d unoccupied, then, under the policy offered in this case, the law is that the plaintiff can not recover.”
    Mr. Fobest F. Cooke, for appellant.
    The policy introduced in evidence in this case is the contract entered into between the company and Lawrence Clarey. Its provision that, “if the premises be, or become vacant or unoccupied,” that then the policy should become void and of no effect, was a warranty on the part of appellee, binding upon him, a condition, the strict fulfillment of which was a condition precedent to a recovery, under the policy sued on. The condition was plain, intelligent, reasonable, unambiguous, and it being entered into by parties competent to contract, should be enforced. If the premises at the time they were destroyed were vacant and unoccupied, as concededly0 they were, then no matter over what length of time the vacancy and unoccnpancy had extended, the company can not be called upon to respond. Appellee knew when he accepted the policy, that appellants would not hear loss that occurred while the property was vacant or unoccupied, no matter under what circumstances the vacancy occurred. In support of the proposition of law suggested to the court on the trial of this cause, and which was by the court marked refused, we cite the following authority, which we confidently believe ' sustains appellant’s position in the case: Niagara Fire Insurance Co. v. Drda, 19 Ill. App. 70; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 168; Hartford Fire Ins. Co. v. Webster, 69 Ill. 892; Cook v. Continental Ins. Co., 70 Mo. 610; McClure v. Watertown Fire Ins. Co., 90 Pa. St. 277; Ætna Ins. Co. v. Myers, 63 Ind. 238; Farmers Ins. Co. v. Wells, 42 Ohio St. 519; Wood v. Hartford Fire Ins. Co., 13 Conn. 533; The Glendale Manfg. Co. v. Protection Ins. Co., 21 Conn. 18; Marshall on Insurance, 249; Ripley v. Ætna Ins. Co., 30 N. Y. 158; Herrmann v. Adriatic Fire Ins. Co., 85 N. Y. 162; Ashworth v. Builders’ Mut. Fire Ins. Co., 112 Mass. 422; Harrison v. City Fire Ins. Co., 9 Allen, 231.
    Mr. J. A. McKenzie, for appellee.
    Even had the pleas relied upon avoided the policy by reason of the premises having become vacant or unoccupied, before the policy would be null and void for that reason, it must be such a vacancy and unoccupancy as would reasonably be understood as contemplated by the insurer and the assured. It is not every unoccupancy that avoids the policy. te A practical occupancy, consistent with the purposes or uses for which it was insured, was intended.” Wood on Ins., 209; Whitney v. Black River Ins. Co., 9 Hun, 39; Stupetski v. Trans. At. F. Ins. Co., 43 Mich. 373.
    This building was insured as a tenement house and the usual and ordinary risks and vacancies incident to a change of tenants was to be expected, and was in the minds of the contracting parties. Gates v. Mattison Mut. Ins. Co., 5 N. Y. 469; Joice v. Maine Ins. Co., 45 Me. 168.
    This house was insured as being occupied by a tenant. In the case last above cited, the court say: “ It would be unreasonable to imply that the defendant entered into the contract with the expectation that the then tenant was to continue in the occupancy during the running of the policy, in the absence of anything showing that sort of understanding.”
    “ The object of courts, when enforcing a provision in a policy like this, should be, to endeavor to so construe it as to give effect to what might reasonably be supposed to have been the intention of the parties when they consented to it.” Phœnix Ins. Co. v. Tucker, 92 Ill. 71.
    Even when a school house or • church is insured with the provision making the policy void if they become vacant and unoccupied, a vacancy or unoccupancy of the church from Sunday until Sunday, or of the school house from Friday until Monday, would not avoid the policy, because such unoc. cupancy or vacancy would be in the minds of the contracting parties. American Ins. Co. v. Foster, 92 Ill. 337; Whitney v. Black Riv. Ins. Co., 72 N. Y. 118.
   Lacey, P. J.

The court before which the cause, was tried gave judgment against the appellant for the amount of the insurance, and to reverse that judgment this appeal is taken.

The only cause insisted on for reversal is the refusal of the court to give the above proposition of law asked for by the appellant. Whether or not the court erred in such action depends upon the construction to be given to the clause in the insurance policy in regard to the policy being void in case the house should become vacant.

The clause under consideration.reads as follows:

This policy shall be null and void if the premises shall be used or occupied so as to increase the risk, or be or become vacant or unoccupied, or cease to be used or occupied for the purposes herein, or if it be a manufacturing establishment and shall run in whole or in part at night or over extra time, or if it shall cease to be operated, or the risk be increased by the erection or occupation of neighboring buildings, or by any means within the knowledge or control of the assured.”

As we understand it, the proper interpretation to be given to the above provision of the policy is that the last clause refers back to and modifies the preceding clauses, and in doing so, modifies the clause regarding the vacancy. Therefore it should be construed to read: “The policy shall become void if the house shall become vacant by any means within the knowledge or control of the assured to prevent.” That is, if he could prevent it and did not, the policy should become void. It is evident, therefore, that the assured, not having any knowledge of the vacation of the house by the tenant, and it being vacant so short a time before the fire that he could not discover the fact and place a tenant -therein, he should not be held to laches in regard to the vacancy. The proposition of law was therefore properly refused and the court committed no error in doing so. A similar provision in an insurance policy has been construed as we interpret this, in N. A. F. Ins. Co. v. Ziegler, 63 Ill. 465. The policy construed in N. F. Ins. Co. v. Drda, 19 Ill. App. 70, is not set out in the opinion, and we can not say whether it is the same as the one in this case or not; but, however that may be, this court must be governed by the decisions of the Supreme Court. This being the only question involved in this ease and being decided adversely to the appellant, the judgment of the court below is affirmed.

Judgment affirmed.


author: C. B. Smith, J. Lacey, P. J.,

text:
    Abram H. Lichty v. Eli L. Lower et al.

      Principal and Surety — Contribution—Note—Chattel Mortgage on Fai in Stock — Estoppel—Agency—Instructions.
    1. In an action against the agent of the owner of a certain farm to recover the amount paid by the plaintiffs as co-sureties with him on a promissory note given by the tenant on said farm to secure the payment of money borrowed from the landlord, the plaintiffs having signed said note as sureties with the defendant, upon his promise that he would apply certain moneys to be derived from the sale of stock on said farm, which would pass through his hands, to the payment of said note, and upon his assurance as agent of the lender that a mortgage on the interest of said tenant in said stock would be good security, it is held: That the defendant can not now be permitted to show that the stock was the property of the landlord, the tenant having 1 ailed to pay for the interest claimed therein; and that the verdict for the plaintiffs should be sustained.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Carroll County; the Hon. Bichard S. Tuthill, Judge, presiding.
    Hr. James Shaw, for appellant.
    Messrs. Hunter & Eaton, for appellees.
   C. B. Smith, J.

It appears from this record that "W. A. Gorges owned a farm of about 500 acres in Carroll county, and that B. F. Aiken and his son Frank were his tenants, and that appellant, Abram H. Lichty, was the general agent of Gorgus, who lived in Pennsylvania. B. F. Aiken wanted to borrow §275, and in his efforts to find a lender he sought the assistance of appellant. This was in November, 1884. Appellant informed Aiken that if he could get appellees, Lower and Keitn, to go on a note with him he could get him the money. Aiken wanted the money to use on the farm and to assist his son to get married. Appellees at first refused to go on the note, but after being urged to do so both by Aiken and Lichty they finally consented to and did sign the- note, but before having signed, both Aiken and appellant promised and agreed that Aiken should secure them with a chattel mortgage on his half interest in the stock on the farm.

The mortgage was not executed as agreed at the time, and some time after, Keim called on appellant for the mortgage. Appellant then informed him that Aiken would not give the mortgage on his interest in the original stock, but would on its increase. Appellees refused to accept such a mortgage, and no security was given. The note became due and Aiken informed appellant that he could not pay it. Appellant then advised Aiken to go and see appellees and try and get them to renew the note. This they refused to do. Again both Aiken and appellant urged appellees to renew the note, and to induce them to do so appellant agreed to sign with them, and also agreed that Aiken should execute his mortgage on his interest in the stock on the farm. As a further inducement to get appellees to renew the note, appellant assured them that he would have charge of the stock and would manage the whole business, and that when the stock in the mortgage was sold, the money would come to him and lie would pay off this note and keep his co-sureties harmless. Appellant denies this arrangement, but the great preponderance of the evidence is against him. This second note fell due and -was not paid by Aiken. The mortgaged property had in the meantime been sold by Aiken and converted into money, and paid to appellant largely more than enough to pay this note. But after the note fell due he refused to pay more than one-third of the note, which he did pay, and appellees paid the other two-thirds. Appellant claimed that Aiken had never paid for his interest in the stock to Gorgus, and having so failed, that he never obtained any title to the property mortgaged, and that, upon a settlement between Gorgus and Aiken, Aiken was largely indebted to Gorgus, and that the proceeds of the stock therefore belonged to Gorgus. Appellees bring this suit to recover the amount they paid on this note back from appellant. We think the proof amply shows that appellant did agree and promise that if appellees would go on this note with him that he would have the control and management of the farm and the sale of the stock, and the money would pass through his hands, and that he would apply what was necessary to pay this note. Appellant, acting as the agent for Gorgus, assured appellees that a mortgage on this property would be good security and protect them from loss. He can not now be permitted to assume a different attitude.

Again, Gorgus himself, on February 15,1876, takes a second mortgage on this same property mortgaged to appellees, and in that mortgage he expressly recognizes the validity of the first mortgage and takes his subject.to that, so far as that property is concerned.

There could be no legal justification for appellant paying this money to Gorgus or for retaining it himself, and it was his duty when he received it to have paid off this note, and having failed to do so he must now do it.

The case has been submitted to two juries and both have found against appellant, and we are satisfied with the finding. Appellant insists that the court erred in giving instructions for plaintiffs, and in refusing instructions for defendant.

We think there was no error, in the giving or refusing instructions. The jury was fully and fairly instructed.

Judgment affirmed.

Lacey, P. J.,

dissenting. I am of the opinion that the court below erred in giving the 1st, 2d and 3d of appellees5 instructions. The evidence in my opinion was quite close and in such condition that the instructions should have been accurate. In the instructions the court assumed that the money received from Aiken by appellant for the sale of the mortgaged property was with an agreement to apply it on the note. In this the instructions were misleading and for this error I am of the opinion that the judgment should he reversed.


author: C. B. Smith, J.

text:
    Joseph L. Avery v. George B. Swords.

      Negotiable Instruments — Note—Payment without Surrender — Agency— Negligence — -Amendment—Instructions—Evidence—Notice.

      1. A promissory note in the hands of a third person can not be affected or incumbered by private independent agreements between the parties thereto.
    2. It is gross negligence on the part of the maker of a note to pay the same without having it surrendered to him, or being certain that the payment is to the proper party.
    3. Where one of two innocent parties must suffer loss the one whose negligence caused such loss must bear the same.
    4. In the case presented, it was improper to allow the defendant to withdraw the general issue and file a special plea of payment, after a different presiding judge at a former term had refused such motion.
    5. An endeavor to collect from a third person funds wrongfully collected and withheld by him, is no waiver of the right to proceed against the debtor who carelessly and negligently placed them in the hands of such third person.
    6. An instruction which singles out a single important fact in the case, is improper.
    7. An agency may be shown by the acts of the parties. The evidence in the case presented does not show that a third person was the agent of the plaintiff to receive payment of the note in question.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Livingston County; the Hon. Alebed Sample, Judge, presiding.

      Messrs. Wallace & Terry, for appellant.
    Swords was in law bound to know that Culver was the agent of Avery, and had the right to receive this money. Dutcher v. Beckwith, 45 Ill. 460.
    A note transferred before due to a bona fide holder without notice can be recovered on. Farlin v. Lovejoy, 29 Ill. 45; Calkins v. Vail, 31 Ill. 166; Murray v. Beckwith, 81 Ill. 43; National Bank of Olney v. Baird, 3 Ill. App. 239.
    A special agreement between parties to a note or bill, not indicated in the note itself, can not be set up against a purchaser for value before due and without notice. Rice v. Ragland, 10 Humph. 545; S. C., 53 Am. Dec. 737.
    The presumption of law is that the assignment is bona fide and for value. Persons questioning it must prove it. Wightman v. Hart, 37 Ill. 123; Depuy v. Schuyler, 45 Ill. 306; Richards v. Betzer, 53 Ill. 466.
    Messrs. Straws & Patton, for appellee.
   C. B. Smith, J.

This is a suit brought on a promissory note for $560 by Joseph L. Avery, the appellant, against George B. Swords, the appellee. The note in controversy was executed by Swords to one Joseph Morgan and assigned before due to appellant. The record discloses this state of facts: In 1873, appellee bought 160 acres of land from Joseph Morgan and as part payment thereof he executed three notes to Morgan, all dated February 3, 1874.

The first was for $500, due March 1, 1875; the second for $600, due March 1, 1878, and the third for $560, due March 1, 1879.

A trust deed was also executed to secure the payment of all these notes with one J. F. Culver as the trustee. The notes and trust deed were executed at the bank of J. F-Culver in Pontiac, Illinois.

Almost immediately after this transaction Morgan moved to Wolfsborro, Hew Hampshire, and deposited these three notes with others and the trust deed in a savings bank, of which Avery was treasurer, for safe keeping. On March 16, 1874, Morgan placed the first two of these notes with appel" lant as collateral security for the payment of a lot of land he bought from appellant. The last note remained in the bank subject to the order of Morgan. The first note was paid before it was due and was paid at the bank of J. F. Culver, where the note was sent by appellant at the request of Morgan, who then still owned the note. The second, or $600 note, was paid at maturity and was collected by appellant through the National Bank of North America of Boston. That bank sent it to Cub ver’s bank for collection and it was paid by Swords in that bank. At the maturity of the last note for $560, the one now in controversy, appellant placed it in the Labe National Bank of Wolfsborro for collection. The note was protested March 4, 1879. After appellant learned of the protest he wrote Swords. Swords made no reply but took the letter to S. S. Lawrence, an attorney at law, who made this reply to Avery’s letter of inquiry:

“Pontiac, March, 19, 1879.

“Joseph L. Aveey :

“Sw: Tours of 12th inst. to George B. Swords is placed in my hands by him, with instructions to answer. • He says he paid the note long ago to Morgan’s agent, Joseph F. Culver. When Mr. Morgan was here he told Swords he might pay the money in at any time to Culver aud he would allow a discount of eight per cent, per annum for unexpired time on all sums paid before due. A little over a year ago he paid to Culver the balance due on the mortgage to Morgan, or to Culver as trustee for Morgan, and he then released the mortgage of record. If Morgan has not got his money it is not Swords’ fault. Morgan must look to Culver, his agent.

“S. S. Lawrence.”

After appellant had been informed that the note was paid ■ to Culver long before it was due, he wrote to Culver about it and in response to that letter he received the following letter:

“Pontiac, April 6, 1879.

“ Joseph L. Aveey:

“Sir: When Joseph Morgan sold his farm to Swords, I was made trustee and notes were made payable at my office, with the agreement that upon all money paid by Swords before due, he should receive a discount. This was subject to a prior incumbrance which fell due January 1, 1S78, and to effect a new loan Swords had to have a clear title. lie raised part of the money and applied for enough more to pay last of the Morgan notes. Out of the new loan, §1,500, after discharge of the prior mortgage, there was enough with the former deposit to pay off the last Morgan note, and I released the trust deed, intending to pay off the note. Being unable to sell real estate at any price, I was unable to meet my obligations; but if my creditors will give me a little time, I expect to pay in full.

“Joseph F. Culver.”

Swords paid all three of these notes to Culver. The first and second notes were at Culver’s bank when he paid them and he took them up. He also paid the interest on all these notes to Culver.

He swears, and it is true, that he paid the last note to Culver nearly a year before it was due, but did not get his note. Culver told him the note was in New Hampshire but that he would write and get it. Culver then released the trust deed.

Shortly after this transaction appellee asked Culver if his note had come yet and Culver told him it had not but he expected it every day. Culver, who now claims that he was acting for appellant in receiving this money, allowed nearly a year to pass before he informed Avery that he had collected the money, and then only after Avery had written him about it, and after he had closed the doors of his bank and refused payment.

Shortly after his failure in business he moved to Kansas with his family. So far as this record shows Avery did nothing more toward collecting this note until in March, 1882. He then wrote to an attorney saying he had a claim against Culver and desired him to see what could be done toward collecting it. Having received no reply to this letter he again wrote the same attorney in April following, asking for an answer to his letter. After the failure of this correspondence to get anything out of Culver appellant commenced this suit. Three trials before the Circuit Court have been had. The first one resulted in a verdict for the defendant. On motion of the plaintiff the verdict was set aside and a new trial granted. On the second trial the jury disagreed and were discharged without a verdict. On the third trial the defendant again had a verdict. The court overruled a motion for a new trial and gave judgment on the verdict for the defendant.

The case is now brought before us for review on appeal. The long contest in the court below has induced us to give the case a careful and patient investigation. The appellant urges that the court erred, first, in allowing the defendant to withdraw the general issue and plead a special plea of payment after a different presiding judge at a former term had refused that motion. Second, that the court erred in the admission of testimony prejudicial to the appellant and also erred in giving and refusing instructions.

The material and central fact in the controversy is whether Culver was the agent of Avery at the time he collected the last note from Swords. If he was, then Swords would be justified in paying him the note and would be discharged; but if he was not the agent, then he had no right to collect the money from Swords, and Swords would not be protected in his payment.

Appellee does not claim any express or direct agency but seeks to show such agency from the course of business and the acts of Avery, Culver, Morgan and himself. Of course, an agency may be shown by the acts and conduct of parties as well as by direct authority.

There is no claim in this record that Avery ever had anything to do with or knew anything about the sale of the land by Morgan to Swords, or the execution of the notes and deeds and trust deed, until the notes were deposited in the bank in Wolfsborro, and not then until two of the notes were placed in his hands as collateral security. Swords now relies on a collateral agreement, made between himself and Morgan at the time the sale was made, that Swords might pay off any or all of these notes before they were due and thereby get a discount of eight per cent., and inasmuch as Morgan was going to Hew Hampshire it was agreed that the notes and trust deed should be left with Culver where Swords could go and pay them if he so desired.

This alleged agreement was made, if made at all, at the same time of the execution of the notes and mortgage, and was not put in either one of the instruments of writing. Morgan swears that no such agreement was made and that he did not make Culver his agent for collecting the notes, and that he took the notes with him to Hew Hampshire and never did leave them with Culver.

Swords swears there was such an agreement and that it was signed by Morgan, but that he did not sign it and did not read it.

Culver swears that it was in writing, and was assented to by both parties signing it. Suppose such an agreement had, in fact, been made and properly proven and in writing, it could not have bound appellant in any event without notice of its existence, even if it could with notice. It was no part of the notes nor the trust deed, and could in no manner change the terms of the note.

It was not assignable and could not go with the notes, nor could it hasten their maturity any more than it could extend the time of the payment. It can not be claimed with any show of reason or authority that negotiable promissory notes can be affected or incumbered with private independent agreements between the .parties to them, such as is claimed in this case. Rice v. Ragland, 10 Humph. 545; S. C., 53 Am. Dec. 737.

If, by such an independent and separate agreement, the maturity of a note may he accelerated so as to bind assignees, then may the time of maturity be extended by like agreement. Hor would the agreement contended for here, that Morgan had appointed Culver his agent to collect these notes, he anymore binding on an assignee for value, than an agreement to accelerate or extend the time of payment.

If that were so, it would be in the power of the payee of a note to appoint an agent to receive payment of the note without reference to the holder or assignee of the note. All such, agencies must terminate when the party making the appointments ¡Darts with his notes. The holder of promissory notes has the right to appoint his own agents to make collection.'

But there is a total want of any credible proof that Avery ever heard of any such pretended agreement between Swords and Morgan. 'On the contrary, there is positive, reliable and uncontradicted proof that he never heard of any such pretended agreement, until he saw it in Culver’s deposition. Morgan swears there was no such agreement, and that he never told Avery there was. Avery swears that he never heard of any such agreement between Morgan and Swords.

The only pretense that can be made to show that Culver was the agent of Avery, was that, when the first note was due, Avery sent it to Culver for collection for Morgan and at Morgan’s request. That noté did not belong to Avery, and he had no interest in it. When the other notes became due which he had bought from Morgan, he placed them both in Hational Banks near his home for collection, and paid no attention to Culver. The fact that these banks sent the notes, or one of them, to Culver for collection, did not make him the agent of Avery.

Without further prolonging the discussion of this branch of the case, we are satisfied that there is a total failure to prove notice of this pretended agreement to appoint Culver the agent of Morgan to receive this money or any part of it. The court erred in admitting the testimony relating to that agreement.

It was the duty of Swords before he paid this note, to have the note surrendered to him or to be sure that he was paying it to the right party. Dutcher v. Beckwith, 45 Ill. 460. He was bound to know that his note was assignable, and that the holder of to-day might not be to-morrow. It was an act of gross negligence on his part to pay the note without having it surrendered to him or being assured he was paying to the right party.

When he paid the note without receiving his note, he paid it at his peril. Avery did nothing to induce him to believe that Culver was his agent. Avery was in no fault. Swords acted in good faith, and supposed Culver would get 1ns note from Morgan or Avery. Culver then knew that he had no authority from Avery to collect the money, for, by his own acts and correspondence, it is evident that he did not then know Avery owned- the note, for he .swears that when the money was paid, he gave Morgan credit with it on the books.

It is a familiar rule that when one of two innocent parties must" suffer loss, that the one whose negligence has caused the loss must bear it.

We think the court erred in setting aside the order of another judge rendered at a previous term, denying a motion made by the defendant for leave to withdraw the general issue and file a special plea of payment. The case- was first heard by the Hon. bf. J. Pillsbnry, and the defense was then given * under the general issue.

Prior to the second trial, before the same judge, the defendant asked leave to withdraw the general issue and for leave to file a special plea of payment, which was very properly overruled by the court, and the defense was again made under the general issue on the second trial. On the third trial, before the Hon. Alfred Sample, judge, presiding, the defendant renewed his motion for leave to withdraw the general issue and file a special plea of payment, which motion was allowed, against the objection of the plaintiff.

There could be only one purpose in view in pressing this motion upon the court and in renewing it after it had once been refused, and that was to obtain an unjust advantage over the plaintiff in securing the opening and closing before the jury, an advantage which the defendant was not fairly entitled to. He could give evidence of payment just as well under the general issue as under the plea of payment, and hence we think the court, in the first instance, properly refused the motion. We hold that the allowance or refusal of the motion was, in the first instance, in the sound discretion of the court. We are not inclined to hold, as a matter of strict law, that the action of Judge Pillsbury in refusing the motion at one term preeluded Judge Sample from vacating the order and changing it at a subsequent term, since the order was interlocutory only and relating to the formation of the issues in the case, but we think it is the exercise of such discretion as may be reviewed upon appeal, for abuse or improper exercise. We think in this case the order made by Judge Pillsbnry was properly made, and that no sufficient reason was shown why another judge, at another term, should, vacate it and make another prder directly the reverse of it.

Under our present arrangement of judicial districts, throrving three judges together and making it necessary for them frequently to preside at different stages in the same base, we think great care should be observed and respect shown to the judicial acts of the several judges, and we think they should not set aside or interfere with each other’s orders and judgments, even when they be only interlocutory and, where the naked power exists so to do, unless there be some reasonable necessity for so doing, in order to promote the ends of justice or facilitate its due administration.

Any other rule is liable to promote unkind and unfriendly relations and lead to confusion and retaliation prejudicial to the administration of public justice. There being, as we have seen, no necessity of any kind for setting aside the order made by Judge Pillsbnry, we think the court erred in allowing defendant to withdraw the general issue and file a plea of payment, and upon a retrial of the case the court will vacate the order allowing the plea of payment to be filed and the general issue to be withdrawn, and restore the pleadings as they stood on the first and second trials. If this was the only error in the case we should not regard it of sufficient gravity to justify a reversal for that reason alone.

Counsel for appellee contend that appellant waived his right to proceed against appellee by endeavoring to collect his claim from Culver in Kansas, after Culver had moved there, or that, if he did not, in fact, thereby waive his right to proceed against appellee, he at least furnished strong presumptive evidence that he regarded Culver as his agent and real debtor, and looked to him for his money. We do not look at Avery’s conduct in attempting to get his money from Culver in that light. He knew that Swords had negligently and wrongfully } aid the money to Culver which ought to have been paid to him, and that Culver had the money and ought to refund it. Culver was the culprit, cheating both Swords and Avery, and he ought not to be prejudiced in passing Swords long enough to see if he could get his money out of Culver and thus save Swords. He swears he never intended to release appellee unless he could get the money out of Culver.

It is insisted the court erred in refusing the first and second instructions asked for by the defendant. We think they wore both properly refused. The first, because it omits all reference as to whether Culver was, in fact, the agent of Avery and so authorized to receive the money or not.. It simply presents the question of the relative negligence of the parties. If Culver, in fact, had the authority from Avery to collect the money, then it could make no difference how much negligence Swords may have been guilty of in paying it without getting the note, or in paying it without any inquiry as to his agency.

The second instruction was properly refused because it singled out an important and single fact in the case and told the jury they might consider that fact. This mode of instruction has been so often condemned that it is barely necessary to call attention to it, and the court did right in refusing it.

For the errors above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Washington Corrington v. Hiram Pierce.

      Trespass— Boundary Line — Settlement by Survey — Breach of Agreement

    The breach of an agreement, entered into by several adjacent land owners, to accept a boundary line as located by a surveyor, by one of them, does not destroy the obligations existing between the others.

      [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. H. W. Wells, for appellant.
    Where two parties jointly enter into an agreement, and one of them, in the presence and with the knowledge of the other, does acts or makes statements to the party on the other side, affecting their agreement, that snch acts or declarations will be taken as the statement of both unless some objections are made or some dissent is expressed.
    In this case there were repeated acts and declarations of Cody, that he would not keep the agreement which he, with Pierce, had entered into. His suit in forcible entry and detainer was resumed and the trial had, in direct violation of the agreement, and Pierce was present and knew all about it, but no sign of dissent. Cody’s subsequent settlement with Corrington was made, Pierce being present and directly told it did not include his land, and still no sign of dissent; two or three weeks later, November 9th, Corrington went and built his fence on the original line, and while this fence was being built he, for the first time, asked Corrington if he was not going to stand by that survey. Corrington replied, “ No, you would not stand by it.” That was the first time Pierce intimated his intention to abide by the contract to survey.
    This is not a case where one of several parties attempts to set aside a contract in which others have an equal interest. This is a case where one, with the consent of all the others jointly interested with him, refuses to be bound by a contract, and the party on the other side acquiesces in that abandonment for more than four months after the contract was in effect abandoned. The suit, which was to be settled under the agreement, went to trial July 1st; from that time until November 9th, no one of the parties made any pretense that the contract had any binding force; all agreed, so far as declarations show, that it was abandoned.

      We insist that the appellee is, by his acts, estopped to claim any rights under the agreement to survey. It seems that Corrington has acted' entirely different from what he would have done, had it not been for the acts and declarations of Cody, and entirely different from what he would have done, had Pierce given any sign of dissent from Cody’s acts and declarations.
    He went on with his lawsuit against Cody — he subsequently made another and different settlement with Cody, he afterward hauled material and began to build a fence on the old line, and then for the first time Pierce spoke to him and asked him if he was not going to abide by the contract. During this four months, Corrington, in good faith, and not suspecting any concealment on the part of Pierce, acted' as though Pierce had agreed with Cody to abandon the survey.
    The law of estoppel is stated in the following cases: Knoebel v. Kircher, 33 Ill. 308; Kinner v. Markey, 85 Ill. 96; Smith v. Newton, 38 Ill. 230.
    Mr. Arthur Keithley, for appellee.
    Where a matter has been submitted to arbitrators by one on one side, and by two on the other, for an award, can one of the two, without consent of the other, either revoke the submission or after the award destroy its effect? Kyd on Awards, 30; Robertson v. McNeil, 12 Wend. 578.
    It is the policy of the law to recognize and sustain boundaries established by agreement of the parties and to apply the doctrine of estoppel where the law and the justice of the case will warrant. McNamara v. Seaton, 82 Ill. 498.
   C. B. Smith, J.

This was an action in trespass begun before a justice of the peace by appellee against appellant, for throwing down a fence erected by Pierce on land Corrington claimed to own. The plaintiff, Pierce, recovered a judgment for §25 before the justice, and Corrington appealed to the Circuit Court, where the plaintiff again recovered a judgment for §25, and Corrington brings the case to this court on appeal. The facts out of which this controversy grows are these; Corrington owned eighty-five acres of land in section 28. Pierce owned several lots abutting Corrington’s land on the east, and one Joseph Cody also owned one lot south of Pierce’s lots, and also abutting Corrington’s land. The same line which divided 'Corrington’s and Pierce’s land also divided Corrington’s and Cody’s land. Before the controversy between Pierce and Corrington began, it appears that Cody put his fence over on what Corrington claimed was his land, and thereupon Corrington sued Cody in forcible entry and detainer before a justice of the peace. At the time set for the trial of this case, a verbal agreement was made between Corrington on the one side, and Pierce and Cody on the other, that the dispute about the line should be settled by surveyors to be chosen by the parties, and that the surveyors should go on the land and survey it and locate the disputed line and that all three of the parties should be bound by the line as located by the surveyors. ,To accomplish this end the suit between Corrington and Cody was continued until after the survey should be made. The surveyors were selected and made the survey and located the line in pursuance of this agreement. After the line was thus located, Cody repudiated his agreement and refused to abide by the line located by the surveyors. Pierce was present and heard Cody refuse to abide by his agreement and was also present at the trial between the parties afterward, but took no part in the first conversation when Cody said he would not stand by the survey; nor did he take any part in the subsequent trial between Cody and Corrington. Shortly after the survey and after the trial between Corrington and Cody, Pierce informed Corrington that he was abiding by the survey and expected him, Oorrington, to do the same thing and that he would build his fence on the line established by the surveyors, which he did in a short time, but not putting his fence as far, by an inch or so, as the line authorized him to do. Corrington thereupon tore down the fence placed there by Fierce. Corrington now contends that, inasmuch as Cody refused to stand by his agreement with the knowledge of Pierce, Pierce must also be held as repudiating it, and that he is therefore also released from any obligations under this contract to Pierce. We can not concur in this view. Cody and Pierce had no joint interest in the line, nor in the lands abutting the line. Their interest in the line and land were several and entirely distinct, and we think each one of the parties were separately bound by their agreement and that neither one could destroy the obligations existing between the others without their consent. If they had been jointly interested in the land, it might be that the act of one would then bind the others. The authorities cited by appellant are unlike the case at bar, and can have no application to this case. The court instructed the jury in harmony with the views herein expressed.

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

Judgment affirmed.