text:
    William Soby v. The People of the State of Illinois.

      Gaming Contract—Board of Trade—Bucket Shope—Options—Act of July, 1887—Intention—Indictment.

    1. Upon an indictment under the act ,of July, 1887, touching trading in options, it is proper to show the intention of those entering into the contracts claimed to have been within such act.
    2. The guilty intention of the keeper of a place wherein such business is carried on, consists in knowingly allowing such transactions, it being understood that there is to be no receipt or delivery of the property involved.

      3. It makes no difference in such cases whether the keeper is directly interested in the deal in question.
    4. A count based upon a section of a legislative act referring to accessories, seeking to reach the principal, is bad.
    5. In the case presented, the court holds that the verdict of guilty must stand, it being supported by two good counts, although the others are< defective.
    [Opinion filed January 21, 1889.]
    In error to the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Edward L. McDonald and H. S. Whitlock, for plaintiff in error.
    It is not the intention of the statute under which this indictment is found to prohibit the buying or selling of grain, cattle, hogs or any other commodity for future delivery, even though only a part of the purchase price be paid at the time of purchase, and when the balance is not to be paid until delivery is made, no matter whether the down payment be called margins, security or part payment. Testing .the transaction made by Mr. James with Lindblom & Co. through Mr. Soby, their agent, by the law of this State, as repeatedly affirmed by the Appellate and Supreme Courts, this transaction can not, in any sense, be termed a gambling contract, or gambling in grain. That Mr. Soby acted in good faith in receiving the orders from Mr. James, and transmitted them to his principals in Chicago, Lindblom & Co., there can be and is no question; that Lindblom & Co. acted in the utmost good faith is undisputed; the order was received and executed to the letter, and Lindblom & Co. became and were responsible to the persons with whom they contracted' for the payment of the grain when the same was to be delivered in the following May, and as a matter of fact, when the contracts matured in May the grain was actually delivered to and paid for by Lindblom & Co., as the testimony of Mr. Lindblom shows in this case. Add to this the further fact that neither Mr. Soby nor Lindblom & Co. knew what was Mr. James’ intention at tlia time when he gave the orders for the grain; for Soby and James both testify that James never told him what his intention was, and that the only option was as to what day in May the grain was to be delivered." To this state of case apply the law as announced in Pixley et al. v. Boynton, T9 Ill. 351, and particularly Powell v. McCord, 121 Ill. 330. If, then, this case bears the test under the law of a legal and legitimate contract, and we think it does, how then can this be termed “ bucket shopping ” or the “ pretended ” buying ■tad selling of grain ?' On this broad ground the case should be reversed.
    What is this crime, designated “keeping a bucket shop” or “bucket shopping?” Is it by any. rule of construction possible to broaden the language of the statute or construe its meaning so as to bring the business conducted by the appellant under any of the provisions of this statute ?
    There is not one word of testimony that shows that Mr. Soby has bought or ever offered to buy a bushel of grain, or has ever sold or offered to sell a bushel, or pretended to buy or sell, either on margins or otherwise, with intention or without intention of paying for and receiving or delivering any such grain or other commodity, but on the contrary we have his Undisputed testimony that he has not bought or sold a bushel of anything; nor is there any testimony that Lindblom & Co. have either; the only testimony as to any transaction of L. & Co. is that with Mr. James, and in that case Mr. Lindblom did not sell, or pretend to sell to James, but made his purchases in- the open market of Hebbard & Co., and others, for and on account of James. The statute in this case has been misconstrued by the court. The whole act taken together plainly shows that the offense is committed when . the person or corporation who is conducting such a place or business, himself pretends to buy or sell grain, etc., on margins or otherwise, with no intention of receiving and paying for the property so bought, or delivering the property so sold. The second section of the act clearly expresses this view in lire following language: “The said crime shall be complete against any corporation, association, co-partnership or person thus pretending or offering to sell, or thus pretending or offering to buy, whether the offer to sell or buy is accepted or not.” Who offering to buy ? Who offering to sell? The corporation or person thus pretending to so sell or buy, he is one party to the pretended trade—the party of the first part, say, and the person who comes to his shop or offers to trade is the party of the second part; the trade is always in contemplation of the statute with the party of the first part, not between the party of the second part and some third person, but with the bucket shop keeper himself, be he one or many, in one firm or corporation.
    Take this view of this statute and we have the “bucket shop,” and the trading therein is easily recognized as “ bucket shopping;” any other-construction of the statute would be doing it violence, and every commission merchant in Illinois, who, although acting in the utmost good faith, would execute an order for his customer in the buying or selling of grain for future delivery, would be absolutely at the mercy of such customer if the law as laid down in this case is to prevail, no matter what his intention might be. All that is necessary, is for the people to ask the customer what his intention was as to receiving and paying for grain so bought, or delivering grain so sold, and if his answer is that he did not intend to receive it, or deliver it, as the case may be, the guilt of the commission merchant is thus established.
    Mr. Chas. A. Barnes, for defendant in error.
    Justice Scott says, in Pearce v. Foot, 113 Ill. 239: “Although the statutes being considered are highly penal, there is no warrant for' construing them with any unreasonable strictness. They ought rather to have a just, if not liberal, construction, to the end the legislative intention may be accomplished—to prohibit all dealings in options in grains or other commodities. Nothing is productive of more mischievous results. Considerable fortunes, secured by a life of honest industry, have been lost in a single venture in ‘options.’ The evil is all the more dangerous from the fact it seemingly has the sanction of honorable commercial usage in its support-It is a vice that has in recent years grown to enormous proportions. Legitimate transactions on the Board of Trade, are of the utmost importance in commerce. Such contracts, whether for immediate or future delivery, are valid in law, and receive its sanction and all the support that can be given to them. It is only against unlawful £ gambling contracts’ the penalties of the law are denounced, and no subtle finesse of construction ought to be adopted to defeat the end it is to be hoped may be ultimately accomplished.”
    The court, in Coffman v. Young, 20 Ill. App. 76, say: “ Sec. 130 of the Criminal Code declares all contracts by winch a person has or gives to himself or another the option to sell or buy at a future time, any grain or other commodity, to be gambling contracts and void, and provides for the punishment of persons making such contracts by fine or imprisonment, or both. The rule is now well settled that, to bring .a transaction within the provisions of this statute, it is not essential that the contract should, on its face, purport to give to the party an option to sell or buy, but that if the real intention of the parties at the time of making the contract is to deal only in options to be subsequently adjusted or settled upon the basis of the differences in the market-price, and not by the delivery of the commodity sold, the transaction is a gambling contract within the prohibition of the statute, even though it may upon its face purport to be an absolute contract for the sale or purchase of such commodity for future delivery.”
    In the case of Lyon & Co. v. Culbertson, Blair & Co., 83 Ill. 33, Mr. Justice Walker says: “ The fact that no wheat was offered or demanded shows, we think, that neither party expected the delivery of any wheat, but in case of default in keeping margins good, or even at the time for delivery, they only expected to settle the contract on the basis of difference, without either performing or offering; to perform his part of the agreement; and if this was the agreement, it was only gaming on the price of wheat, and if such gambling transactions shall be permitted, it must eventually lead to what are called ‘ corners,’ which engulf hundreds in utter ruin, derange and unsettle prices, and operate injuriously on the fair and legitimate trader in grain, as well as the producer, and are pernicious and highly demoralizing to the trade. * * * It has never been the policy of the law to encourage or even sanction gaming transactions, or such as are injurious to trade, or are immoral in their tendency; and the old maxim that courts will always suppress new and subtile inventions in derogation of the common law would be applied to such contracts. This seems to be a subtile invention to abrogate well established, fair and just principles of the law of contracts, and not only so, but to the great injury of fair and legitimate trade.”
    The same opinion says: “ The statute has prohibited, under heavy penalties, the sale of wheat on called'options to buy or sell grain, because of its pernicious tendency; but it seems to us that these contracts for the sale of grain, where neither party intends to perform them, but simply to cancel them • before or at their maturity, and pay differences, areas injurious to trade, and fully as immoral, as are the sales of options. Neither belongs to fair and legitimate trade. * * * While the law has studiously fostered fair and legitimate trade, it has not sanctioned pernicious practices that are injurious to its votaries, and are demoralizing in their tendencies.”
    If, under the guise of a legitimate contract, the real intent of the parties be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay the other the difference between the contract price and the market price of the goods at the date fixed, for executing the contract, then the whole transaction constitutes nothing more than a wag¡T, is contrary to public policy and is void. Seeligson v. Lewis, 65 Tex. 215.
    A contract to purchase shares of stock without the intention to deliver is a gambling contract, and the true character of the contract may be shown, although it was expressed under the guise of a legitimate enterprise. Stewart v. Schall (Md.), 3 Cent. Rep. 509.
    Contracts for the purchase or sa'e of cotton futures are gambling contracts, and immoral, illegal, and contrary to public policy. Nat. Bank of Augusta v. Cunningham,75 Ga. 366.
   Conger, J.

Plaintiff in error was indicted for a violation of the act in force July 1,1887, entitled, “An act to suppress bucket shops and gambling in stocks, bonds, petroleum, cotton, grain, provisions or other produce.”'

The first and second sections of the act are as follows :

“Section 1. That it shall be unlawful for any * * ,* person to keep or cause to be kept within this State, any bucket shop, office, store or other place, wherein is conducted, or permitted, the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions or other produce, either on margins or otherwise, without any " intention of ■ receiving and paying for the property so bought, or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins; or where the party buying any of such property, or offering to buy the same, does not intend actually7 to receive the same if purchased, or to deliver the same if sold: and the keeping of all such places is hereby prohibited. And any * * * person, whether acting individually or as an * * * agent of any * * * co-partnership, who shall be guilty of violating this section shall, upon conviction thereof, be fined in any7 sum not less than $200 and not more than $500.” * * *

“Section 2. * * * and any * * * person who shall communicate, receive, exhibit or display in- any manner * * * any statements or quotations of the prices of any such property, with a view to any such transaction as aforesaid, shall be deemed an accessory, and upon conviction thereof, shall..be fined and punished the same as the principal, .and as provided in section 1 of this act.”

The first and second counts of the indictment are based upon the first section of said act, while the sixth count is based upon the second section. The- other counts were quashed. There was a general verdict of guilty, and plaintiff in error fined two hundred and fifty dollars.

The evidence disclosed that 'Soby had an office in Jacksonville, where he transacted what he called a general commission • business. ,His own statement of the character and purposes of his business is as follows:

William Soby: “ Am the defendant; live in Jacksonville ; have resided there twenty years; have office in Ayers’ block ; am in grain commission business, as agent of Bobert Lindólo in & Go., Chicago; the blackboard I have is to put down the quotations of. Chicago, New York, St. Louis and Liverpool markets on wheat, corn, oats, pork, lard, etc.; get quotations from telegraph company and place them on blackboard for convenience of customers ; quotations come daily from 9:30 a. m. till 1 p. m., and from 2 to 3 p. m.; I take orders from customers for grain, etc., send message to Lindblom, who executes order on the Board of Trade; my customer puts up a margin of two cents a bushel, and I remit to Liudblom, to cover shrinkage on the grain; if price declines, this margin must be kept good ; I have never bought or sold a bushel of wheat since I have been in Jacksonville ; I never asked the intention of customers; customers have had grain delivered to them.”

Cross-examination: The margin required is two cents a bushel usually; may be one cent if customer desires to limit his loss; in that case the deal would be closed out if market declined one cent; with a two cent margin, if wheat declined I would collect more margin ; there is no delivery unless the option matures; no grain or warehouse receipts have ever been delivered in Jacksonville; I have never bought or sold a b'ushel of grain in Jacksonville; I bought and sold for others; I kept an office where we were buying and selling on the Chicago, market; bought and sold on margins ; the object of my displaying quotations on blackboard was to show the people what the market was, not as an inducement for them to buy of me; if they wished or desired to, they could. My object was to do a commission business; we do it for the commission there is in it; I keep them 'there with a view to selling or buying on margins; my business will average 10,000 bushels a day.”

' Charles James, one of the witnesses for the people, testified: “Know Soby; have been in his office; I don’t know exactly what kind of a business he conducts; I suppose ho ■takes orders for grain; since July I bought, 5,000 .bushels of wheat, at seventy cents, I think; did not pay for it; put up two cents a bushel margin on it; order closed in a few days; bought in October for May delivery ; did not get the wheat; did not need it; sold it for more than I gave ; my intention was to make money out of it by buying and selling it in the fluctuations of the market price; did not get any wheat; did not need it; when I sold, I did not deliver any actual wheat; also bought 5,000 bushels corn; put up two cents margin bought it to make money on by selling it again; was May option ; never saw the corn; paid nothing more for it than the two cent margin; at time I bought this 10,000 bushels of grain, I only put up the two cent margin ; no talk with Soby about my putting up more; I gave order to Soby; heard in about ten minutes it was bought, by telegraph to Soby.”

Cross-examination: The corn and wheat were bought for May delivery; nothing was due from me until that time except margins; sold out before May; made some money; Soby was acting as agent of Hubert Lindblom & Co.; would have taken corn if I had held.until May ; could have used it.’’

Ec-exam ¡nation: “Was to pay nothing but the margin of two cents until May, unless necessary; would have had to put up more margins if first had been absorbed by price going down; if I did not do this, corn would have been closed out, that means sold ; did not get grain for actual use, but bought it to make money out of it.”

An analysis of the first section will show that there are three different ways in which the same offense is described ; first, keeping any place wherein is conducted or permitted the pretended buying or selling of grain, etc., either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering if sold ; second, keeping a place wherein is conducted or permitted the pretended buying or selling of such property on margins; and third, where the party buying any of such-property, or offering to buy the same, does not intend actually to receive the same if purchased, or to deliver the same if sold.

The pretended buying or selling on margins is a term in popular use and its meaning well understood, and would doubtless have been a sufficient description of what was intended to be prohibited, except ior the ease with which it could be evaded; hence the Legislature have also given the first and third descriptions, so that while those engaged in the transaction may give it such a name as they choose, if it can be seen the real intent of the parties was merely to speculate upon the rise or fall of prices, and no actual delivery was contemplated, but the parties expected to settle upon the differences in the market, then it would be a gambling contract. And whoever keeps a place wherein is conducted or permitted the making of such contracts, is guilty of violating the first section. Complaint is made of the ruling of the trial court in permitting the intention of James to be shown, and it is quite earnestly insisted that plaintiff in error should not be bound by the intention of another. The offense defined in the first section is in keeping a place wherein certain kinds of prohibited contracts are made, and to know whether such contracts are of the kind mentioned in the first section the intentions of those entering into them becomes material and is a proper subject of inquiry. The mere making of such a contract in the office of one who was ignorant of it, and who had provided no conveniences or inducements to those desiring to make such contracts, would be no offense.

The guilty intention of the keeper of such a place is in knowingly allowing the business of buying and selling as above described to be conducted in his place, with the intention on the part of those so engaged not to receive or deliver, as the case may be.

Under the first section it is immaterial whether the keeper of the place is one of the parties engaged in such pretended purchases or sales, or not.

The first part of the second section goes further, and provides that if the keeper of such a place as described in section one offers to make the contracts prohibited in the first section, the offense shall be complete as against him, whether such offer is accepted or not.

The latter part of the second section makes all who shall communicate, receive, exhibit or display, in any maimer, any such -offer to so buy or sell, or any statements or quotations of the prices of any such property with a view to any of the transactions prohibited by the first section, an accessory, and liable to the same punishment as the keeper of the room or place mentioned in section one. ;

The sixth count of the indictment should have been quashed. It does not attempt to change the offense mentioned in the first part of the second section, but seeks under the latter part of the section to make plaintiff in error an accessory to himself.

The communicating, receiving, exhibiting, or displaying of any offer to buy or sell, or quotations of prices mentioned in the latter part of section two, refers to others than the principal, and who in that way assist the principal in committing the offense prohibited by section one.

But there being two good coünts, and a general verdict of guilty, those counts will support the verdict, although there are other counts which are defective. Townshend v. The People, 3 Scam. 326; Halliday v. The People, 4 Gilm. Ill.

The fact that plaintiff in error was acting as the agent of another, is of no importance in relieving him from responsibility for a criminal act. 1 Bishop’s Grim. Law, Sec. 355.

We think the plaintiff in error was properly convicted, and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    The Consolidated Coal Company of St. Louis v. Amelia Maehl.

      Master and Servant—•Personal Injuries—Defective Engine—Contributory Negligence—Mines and Miners—Special Interrogatories—Refusal to Submit to Jury—Completion of Verdict after Sepiai'ation—Evidence—Instructions.

    1. It is proper to refuse to submit to the jury questions touching facts which fully appear in evidence, and-upon which no reliance is placed bv the opposite party.

      2. The jury may be sent out to complete their answer to special findings after they have agreed upon a general verdict and separated.
    8. In an action brought under the statute touching mines and miners, to recover damages for the death of an employe resulting from the use of a defective engine, this court holds that the evidence sustains the verdict for the plaintiff.
    [Opinion filed January 21, 1889.]
    In error "to the Circuit Court of Macoupin County; the Hon. J. A. Creighton, Judge, presiding.
    Mr. Charles W. Thomas, for plaintiff in error.
    After the jury had agreed upon a general verdict and sealed it, and delivered it to the officer having them in charge, they separated; it had been agreed they might separate after they had agreed upon a verdict. The verdict which they were to agree upon before they separated, was not the general verdict only, but the special findings of fact which they were required by court and the law to return with their general verdict. They separated, therefore, before they had agreed upon a verdict. It was not proper after this to get them together and have them proceed to complete their verdict. The agreement that the jury might separate was a waiver of the right to poll the jury. . Koon v. Insurance Co., 104 U. S. 106.
    And where an agreement was made that the jury, -when they had agreed upon a verdict, might seal it and deliver it to an officer of the court and separate, it was held that this was equivalent to delivering the verdict into court. Pierce v. Hasbrouck, 49 Ill. 23.
    So an order to „eal and deliver a verdict to the clerk, made under an agreement of parties, was held to dispense with the return of the jury and to preclude their amending the verdict afterward. Trout v. West, 29 Ind. 51.
    A verdict sealed and delivered to the officer of the court agreed upon by the parties to receive it, is delivered to the court, and if the jury separate after such a delivery, they are no longer a jury in the case.
    Messrs. Burroughs & Warnock and George L. Zink, for defendant in error.

      Chapter 93 of our revised statutes, being an “Act providing for the health and safety of persons employed in coal mines,’ was passed by the Legislature as a protection to the life of the miner, and it should be construed with the same liberality which led to its enactment. Beard v. Skeldon, 113 Ill. 588, “The statute, in our opinion, authorizes but one action, but one recovery, for the entire loss. If the deceased leaves a widow surviving, she. under the statute, is entitled to sue and recover for the loss, whatever it may be.” Ibid., page 586 of the opinion. “ Where an action is brought to recover for an injury resulting from the negligence of another, which was not wanton or wilful, it is an essential element to a recovery that the plaintiff or party injured must have exercised ordinary care to avoid the injury; but as we understand the authorities, when the injury has been wilfully inflicted, an action may be maintained, although the plaintiff or party injured may not have been free from negligence.” Litchfield Coal Co. v. Taylor, 81 Ill. 590, at page 595 of the opinion. The Wesley City Coal Co. v. Ann Healer, 84 Ill. 126 ; The Bartlett Coal & Mining Co. v. Roach et al, 68 Ill. 174.
    “ There is evidence, and quite a good deal of it, tending to show that defendant employed an incompetent person to take charge of the engine used in lowering into and hoisting persons out of its mine; that defendant employed such person, and retained him in its service, after his incompetency was known; and that the pit-boss improperly directed a piece of timber to be placed in the cage on which plaintiff was about to descend into the mine. Conceding these were controverted questions of fact, the jury must have found them in favor of plaintiff, and the affirmances of that finding by the Appellate Court is conclusive upon this court, so that they are not now open to further consideration. Assuming these facts to be well founded, as must be done, they fully sustain the judgment rendered in favor of plaintiff. The questions of law made on the record are unimportant. It is said the sixth instruction given for plaintiff was erroneous in stating to the jury that the question whether plaintiff and the person in charge of the engine were fellow-servants, ‘ was a question of fact for the jury to determine from the testimony before it.’ It matters little whether the charge given was correct or not in this respect. The liability plaintiff was seeking to enforce against defendant grew out of what was alleged to be a wilful violation of the act of the General Assembly provided for the ‘health and safety ’ of miners; and the doctrine of fellow-servants had so little application to the real issue made by the pleadings, it is a matter of no moment whether the doctrine on that branch of the law was correctly stated or not.” The giving of an instruction slightly inaccurate, but which, under the facts in the case, could not have worked to the prejudice of the party complaining, or have misled the jury, will not justify the reversal of judgment. The City of Chicago v. Washington Hesing, Adm’r, etc., 83 Ill. 204.
   Conger, J.

At half past five o’clock on the morning of the 13th of December, 1887, John Maehl, the husband of defendant in error, who was employed in the Anchor mine in Macoupin county, then operated by plaintiff in error, left his work in company with four of his fellow workmen and went out of the mine. Maehl and some of the others brought their tools with them, and when they got to the cage at the bottom of the shaft, threw their tools upon the cage, got on themselves, gave the signal, and were hoisted to the landing, at the top of the shaft, when the cage stopped to let them off. The top of the shaft, where the cage stopped, was inclosed by framework with a slide gate on one side, which slid up, so that these men, by stooping a little, could go under the gate, and get off the cage onto the ground outside. When the men started up, their lamps were lit. Two or three of the lamps went out on the journey up. When they got to the top the cage stopped at the landing, and three of the men got off. Maehl called to one of the men to hold a light so that he could see to gather up his tools from the cage. The engineer heard the call for a light and mistook it for the usual signal “All right,” and left his engine to look after the pump. He left his reverse lever off center, and his relief valve closed, and while he was at the pump the engine started, the cage went up, and Maehl was thrown off the cage and down the shaft and instantly killed. His widow brought the present action under the statute in reference to mines and miners, and recovered a verdict for $5,000, upon which judgment was rendered, and the plaintiff in error brings the record here for review.

The declaration contained nine counts: the first, charging that plaintiff in error wilfully failed and neglected to provide sufficient light at the top and bottom of the shaft; the second> a like failure to have a competent person placed at the bottom and.top of the shaft to attend to the signals for hoisting and lowering the cage ; the third, a failure to provide a sufficient brake on the hoisting drum ; the fourth, a failure to provide a competent engineer; the fifth, averring that there was a wi'ful neglect of duty to provide safe means of hoisting and lowering the cage, by permitting tlie throttle valve of the hoisting engine to become worn' out, unsafe and insecure, so that it leaked steam to such an extent as to cause the cage to start up when it should not, etc.; the sixth, a want of lights at top and bottom ; the seventh, the failure to have a competent person at top and bottom of shaft to attend to signals and see •that the employes did not catry tools, timber, etc., with them on the cage, etc.; the eighth, that the engineer was not competent, and that he had no fireman to assist him, and the ninth charges in general, defective machinery, which started the cage suddenly up and threw Maehl off and into the shaft.

Complaint is made by plaintiff in error of the action of the trial court in refusing to submit to the jury the following question, viz.:

• 1. “Was Maelil’s death caused by the wilful neglect of defendant to place a man at the bottom of the shaft for the purpose of preventing men from carrying tools or material with them on the cage ? ”

2. “Did the accident by which Maehl was killed occur more than thirty minutes before the hoisting of coal commenced in the morning of that day, and more than thirty minutes after such hoisting had ceased for the.night befoae?”

3. “ Was Maehl’s death caused by the wilful neglect of defendant to place a man at the top of the shaft to attend to signals ? ”

4. “Was the accident by which Maehl was killed, caused by reason of the wilful failure of defendant to furnish a fireman ? ”

5. “Was Maehl’s death caused by the negligence of defendant’s engineer ? ”

The 4th and 5th of the foregoing questions were both submitted to the jury and by them answered in the negative.

The evidence disclosed that the accident happened an hour and a half before the time for hoisting coal arrived, at a time when the law did not require a man to be stationed at the shaft to attend the signals, and so far as any of the counts in the declaration were based upon a supposed failure to comply with the law in those respects, they seem to have been abandoned upon the trial, and we can not see how plaintiff in error was in any way injured by the court’s refusing to submit these questions to the jury.

The evidence tended to show that the throttle valve of the hoisting engine leaked badly; that the officers of plaintiff in error had their attention called to the fact some time previous to the accident; that when the cage stopped at the landing the engineer mistook Maehl’s call for a light, to be the usual signal that men gave when the men were off the cage, by calling out “All right;” that he then left his lever off center, and went away from his engine to see to his pump, and that because of this leaky valve, a sufficient quantity of steam escaped into the engine to start the cage upward within a few seconds from the time it stopped at the landing.

It does not appear clearly just how Maehl was knocked off the cage, though it seems probaffie, from the circumstances proven, that he was in the act of stepping off the cage, when it started up, and he was struck by the gate and thrown down the shaft. It is insisted that because Maehl’s companions had time to step off the cage and walk ten or twelve feet away before the cage started upward, that Maehl could also have escaped if he had not been engaged in picking up his tools from the floor of the cage, and that it was unlawful for him to bring up his tools on the cage at the time, and therefore no recovery ought to be had.

The act under which this suit is brought provides, among other things, that “the owner, agent or operator of any coal mine operated by shaft, shall provide safe means of hoisting and lowering persons in a cage covered with boiler iron, so as to keep safe, so far as possible, persons descending into, and ascending out of, such shaft, etc.”

The engineer in charge of the hoisting engine at the time says, “I was firing and running the engine when Maehl was killed. The throttle valve was leaking badly.' I suppose it would move the cage when you did not want it to. I took them ’ up to the ground landing. When they got off I thought I heard somebody holler ‘All right.’ Then I left my engine stand and went to start the pump four or five steps off, and had started the pump when Laven hollered, and said the engine had started, and I wheeled around and run to stop it, and in about a minute somebody came running and said Maehl had fallen down the shaft. The engine, ran six or seven feet before I stopped it. I suppose it was the leaky throttle valve that made the engine start. The pit boss knew the condition of the- brake and -valve. I told the pit boss myself maybe a week before.”

It is true there was a relief valve provided, which, if placed in proper position, would let the steam escape through it instead of into the engine, but it seemed not to have been opened.

The law was made for the purpose of protecting the lives of those engaged in the dangerous occupation of mining, and to keep such persons safe, “,so far as possible,” while entering and leaving the mine, and it would be monstrous to say that this law had been complied with by furnishing machinery that would stop a cage at a landing long enough for one to immediately step off, but was liable at any moment to start of its own accord, and hurl such a one to ‘the bottom of the shaft in case he delayed his departure from any cause for a few seconds longer than was actually necessary.

We think the evidence fully warranted the jury in finding the verdict they did.

The first of plaintiff’s instructions was faulty, in telling the jury that if the defendant had wilfully violated any of the said provisions of the statute as stated in the declaration, etc., the defendant would be guilty; hut we are satisfied that it worked no injury to plaintiff in error, for the reason that all the other charges in the declaration, except that of defective machinery and want of sufficient light, were practically abandoned during the trial, and we think it clear that the jury were not misled by the language of the instruction.

The court in sending the jury out to complete their verdict committed no error, but was clearly acting within a proper discretion.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Mary Cramer v. Jane Forbis, Minor Heir of Sarah Forbis. Deceased.

      Guardian and Ward—Appointment of Guardian by County Court— Appeal.

    An appeal will not lie from an order of the County Court, appointing a guardian for a child over fourteen years of age.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. W. B. Jones, for appellant.
    Messrs. Beach & Hodnett, for appellee.
   Conger, J.

The only question presented by this record is, can an appeal be taken from the order of the County Court appointing a guardian for a child over fourteen years of age, by the grandmother of such child, who objects to the person so appointed ?

The Circuit Court held an appeal did not lie in such case, and this, we think, was the correct view. The statute provides that when a minor over fourteen years of age has nominated his guardian, such person shall be appointed by the court, “if deemed a suitable person.”

This leaves the matter in the discretion of the County Court, and it would doubtless be proper for the court to hear any suggestion the relatives of such minor might offer as to whether the person to be appointed is a suitable person or not, but it can not be that every person dissatisfied with such an appointment can litigate the matter" with the ward through the courts. Ho such right exists.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Wall, P. J.

text:
    David H. Harts and Frank Frorer v. Patrick Byrne.

      Negotiable Instruments—Note—Partnership—Payment of Private Debt out of Partnership Funds—Collusion—Burden of Proof—Delay in Discovery of Misappropriation—Consent—Evidence.

    1. A partner has no right to use partnership funds to pay a private indebtedness.
    2. Where partnership funds have been so applied it is not necessary to show that the creditor knew such payment was a misapplication of such funds; the nature of the act should put him on inquiry, and the burden of proof is on him to repel every presumption of negligence on his part and of cullusion or fraud, in the absence of other evidence to repel such presumption.
    3. The fact that the creditor released his claim upon property securing the debt so paid, does not vary the general rule.

      [Opinion filed February 21, 1889.]
    Appeal from the «Circuit Court of Logan County; the Hon. G. W„ Herdman, Judge, presiding.
    Mr. Robert Humphrey, for appellant.
    If any partner pays his individual debt with the firm funds or property, the act is void as against the firm, and the property or money may be recovered back. Knowledge on the part of the separate creditor that he is being paid with partnership funds or property, is not material. Rogers v. Batchelor, 12 Peters, 221; Dob v. Halsey, 16 Johns. 34; Thomas v. Pennrick, 28 Ohio St. 55; Brewster v. Mott, 4 Scam. 378; HaNair v. Platt, 46 Ill. 211; Cosey et al. v. Carver et al., 42 Ill. 225.
    The firm has a right to sue and recover back the amount paid by the check. Thomas v. Pennrick, 28 Ohio State, 55.
    Then, the note having been given for money due from the firm of Harts & Cochran to Byrne, any money due the firm from Byrne might be set off on the suit by Byrne on the note under the plea of set-off. Himrod et al. v. Thomas Baugh 85 Ill. 435; Hayes v. Cooper, 14 Ill. App. 490, and cases there cited.
    Messrs. Blinn & Hoblit, for appellee.
   Wall, P. J.

This was an action upon a promissory note given by Harts, with Rover as his surety, to Byrne, in settlement of a demand held by the latter against the late firm of Harts & Cochran, attorneys at law.

That firm had made sundry collections for Byrne which, through the negligence or misconduct of Cochran, had not been accounted for. After the firm had dissolved Harts settled with Byrne, and as the amount of this note appeared to be owing from the firm, it was given.

Afterward Harts discovered that some years before Cochran had given Byrne a check in the name of the firm for $156, in payment of his (Cochran’s) individual indebtedness to Byrne, and that the check was paid out of the money of the firm, and he now insists that the note sued on was too large by that sum, and the interest thereon; in other words, that the firm of Harts & Cochran owed -Byrne that much less, and to that extent the consideration of the note failed.

The case was tried by the court, a jury being waived, and the. defense thus made by Harts was disallowed.

The propriety of such ruling is the only question now presented.

The law is well settled that a partner has no right to use the partnership funds to pay his private debt. It is not necessary for the firm to prove that the separate creditor knew at the time it was a misapplication of the fund, for the very nature of the transaction ought to put him on inquiry, and however l)ona fide his conduct may be, it is a case of negligence on his part, and the burden of proof is on him to repel every presumption of fraud, collusion or negligence as against him, unless the circumstances already in proof on the other side repel such presumption. Story on Partneiship, Sec. 133; Brewster v. Mott, 4 Scam. 378; McNair v. Platt, 46 Ill. 211.

Appellee does not controvert this rule of law, but urges that upon the evidence it appears the appellant consented to the appropriation of the partnership funds for such purposes in other instances, and that there was an implied if nob express authority to do so in this instance. There is certainly no proof of any express consent to the drawing of this check, or even any knowledge that it was drawn, and though appellant testified that frequently the partnership funds were drawn upon by mutual consent in payment of the private debts of the partners, yet he says it was never understood it might be done in general, but only by special agreement in each case. It appears, however, that the appellee did not know of those instances, and had no reason to presume there wí£s any general authority or uniform course of dealings between the partners that would warrant such use of the partnership funds.

It is true the appellee, when he received this check, released the security which he then held of a cha.tel mortgage upon a piano belonging to Cochran, but it is not shown that the long delay of appellant in ascertaining the misappropriation of the money had prejudiced the appellee, since Cochran was all the while insolvent.

We find nothing in the proof to take the case out of the general rule, or to work an estoppel against appellant to assert the fact.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    James N. Longan et al. v. George W. Taylor et al.

      Official Bond—Action On—School Township Treasurer—Reports and Entries—Balance.

    In an action of debt on the bond of a school township treasurer, this court holds that the final report made by him, and the entries made in the books kept by him in suck capacity, are conclusive against him and his sureties as to the amount due.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. Oscar Allen, for appellants.
    Messrs. Blinn & Hoblit, for appellees.
    It is claimed in the argument that two cases in this State, the case of City of Chicago v. Gage, 95 Ill. 626, and Morley v. Metamora, 78 Ill. 391, are not parallel cases with the one at bar. The principle decided by the Supreme Court in these two cases is the one we are contending for in this case, that where an official makes entries in his books or in a report which the law requires him to make, that both he and the securities upon his bond are estopped to deny the correctness of those entries contained in his report; but there are a number of cases that the courts in this State have decided from time to time, re-affirming this principle. The case of Fogarty v. Ream, 100 Ill. 369, was a case whore the securities upon a guardian’s bond undertook to show, when suit was brought upon the bond, that while the guardian had reported that he had received a large sum of money since his appointment as guardian, the proof conclusively showed that after he became guardian he had not received one dollar, but had, as an attorney, prior to that time, squandered the money which he afterward, by his report as guardian, claimed to hold as such guardian. In deciding that case the court say, on page 377: “It is sought, however, to prove that the guardian did not have in his possession the trust funds at the time that the complainant became his security, but had previously wasted the funds, and was then and has since that time continued to be insolvent. This the policy of the law will not permit him to do. It would open a wide door for frauds in such matters. Here the guardian elects to charge himself with the full amount of a claim in his favor for funds belonging to his ward. It is neither a false nor a fictitious claim. The money is absolutely due from the guardian to his ward, and neither the guardian nor his surety will be permitted to deny he has the money admitted to be in his hands. Any other rule would be most unsafe and lead to results the law will not tolerate.” This case is exactly parallel with the one at bar. It is attempted here to show by Longan, that although he made the entries in this book which show that he had so much money to the credit of eaeli school district, and tiled a report showing the balance of school funds in his hands during his official term, that lie may deny the truth of the entries, so that when sued upon his bond his securities can come into court and prove by him that he had spent this money, which the books and the report show that he had on hand years before.
    In the case of Roper v. Sangamon Lodge, 91 Ill. 518, where one John A. Hughes was elected treasurer of an Odd, Fellows Lodge, lie was sued upon his bond as treasurer, and pleas were filed that for two terms preceding the one commencing on the first of January, 1875, the principal at that time was a defaulter to the lodge for moneys previously received and misapplied ; that it was then known to the officers and members of the lodge that he was a defaulter, but the sureties were ignorant of the fact; that the lodge was a secret organization of which defendants were not members, and were ignorant of its business; that it was the duty of the officers of the lodge, when the bond was executed, to inform defendants that Hughes was a defaulter, and that defendants were misled by the lodge re-electing him, and thereby inducing them to believe he had acted faithfully; that such officers and members gave to defendants no such notice. Demurrer was sustained to this plea and the decision was assigned for error. The Supreme Court held the plea bad. In the same case the court below refused to permit appellant to prove that the default occurred, and the misappropriation of the money was during the term previous to the election on the first of January, 1875, when other persons were his sureties, for the purpose of fixing the liability of the default on the sureties on the bond covering the previous term. The court he'd that defense could not be made “that appellants undertook in that case that Hughes should account for and pay the money, on orders from proper authority when required, and this he failed to do, and appellants must make his default good ” On an examination of this case it will be seen that it is a much stronger case in favor of the sureties than the one at bar, and it is certainly conclusive that neither the principal n >r his sureties will be permitted to deny or contradict the entries in his books or his report.
   Per Curiam.

This was an action of debt on the bond of a school township treasurer. The case was tried by the court, a jury being waived, and resulted in a judgment against the principal and sureties on the bond for $1,201.07 damages.

After the execution of the bond the treasurer made certain entries upon his books, and the day he went out of office he made a report to the trustees showing the condition of his account, and from these entries and this report it appeared that he was indebted in the amount of this recovery, giving credit for certain payments after he retired from the office. It appeared from the oral testimony of the treasurer that all money received by him after the execution of this bond had been paid out for the benefit of the respective districts, and that when this bond was executed he had in his hands, only $38, which he also had paid out, and so it appeared from the entries upon the books of the said treasurer.

The court excluded the reports made to the county superintendent for 1886 and other years, tending to show a smaller deficiency for the period covered by the bond, than shown by the entries and reports offered in evidence by the plaintiffs.

The defendants asked the court to hold as law the following propositions, but the court declined to do so:

“ The entries introduced in evidence by plaintiff's from the books kept by Longan as treasurer, do not operate as an estoppel against defendants to prevent them from proving that such entries are untrue.”

“ The report to the trustees, introduced in evidence, as made by said Longan on the last day he was in office, and stating the amount of money then in the hands of said Longan, does not operate as an estoppel against defendants to prevent them from proving that such amount was not then in his hands.”

The important question is, whether the report made by the treasurer and the entries of receipts and disbursements as to each district, are conclusive against him and his sureties.

Upon the authority of Morley v. Metamora, 78 Ill. 394, and City of Chicago v. Gage, 95 Ill. 626, we are inclined to agree with the Circuit Court, and will, therefore, affirm the judgment.

Judgment affirmed.


text:
    Sarah L. Savage v. Joseph Eakins.

      Sales—Husband and Wife—Agency—Authority to Warrant—Election to Give Agent Exclusive Credit—Evidence—Instructions.

    In an action brought upon the breach of the warranty of a stallion, it is held: That the husband of the owner was, as her agent, authorized to sell and warrant the horse; that there was no election on the purchaser’s part to give the agent exclusive credit; and that the written warranty, though subsequently dated and delivered, related hack to the time the contract was made.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Brock & Holly and J. E. Pollock, for appellant.
    Where a third party, knowing that the agent acts for his principal, elects at the time of the making of the contract to give exclusive credit to the agent, he can not afterward sue the principal. Silver v. Jordan, 136 Mass. 319; Raymond v. Crown E. Mills, 2 Metc. (Mass.) 319; Winchester v. Howard, 97 Mass. 303; Paige v. Stone, 10 Metc. (Mass.) 160; French v. Price, 24 Pick. (Mass.)13; Mauri v. Heffernan, 13 Johns. (N. Y.) 58; Coleman v. First Nat. Bank, 53 N. Y. 388; Cunningham v. Soules, 7 Wend. (N. Y.) 106; Cheever v. Smith, 15 Johns. (N. Y.) 276; Jones v. Ins. Co., 14Conn. 501; Johnson v. Cleves, 15 N. H. 332; Priestly v. Fernie, 3 H. & C. 977; Kyiner v. Suwercropp, 1 Camp. 112.
    A person not the general agent of the principal, who has the naked power to sell and chattel, has no authority to warrant the quality of the article. Decker v. Fredericks, 47 N. J. L. 469; Perrine v; Cooley, 42 N. J. L. 623; Scott v. McGrath, 7 Barb. (N. Y.) 53; Brady v. Todd, 9 C. B. (N. S.) 592.

      A ratification is only effectual when the act is done by a person professedly acting as the agent of the party sought to be charged as a principal. Grund v. Van Vleck, 69 Ill. 478; Roby v. Cossitt, 78 Ill. 638; Forsyth v. Day, 46 Me. 176; Crowder v. Reed, 80 Ind. 1; Harrison v. Mitchell, 13 La. Ann. 260; Harper v. Devene, 10 La. Ann. 724; Collins v. Suau, 7 Robt. (N. Y.) 623; Fellows v. Comm’rs, 36 Barb. (N. Y.) 655; Farmers’ L. & T. Co. v. Walworth, 1 N. Y. 435; Brainerd v. Dunning, 30 N. Y. 211; Vanderbilt v. Turnpike Co., 2 N. Y. 479; Alldred v. Bray, 41 Mo. 484.
    One can not be held to have ratified the unauthorized acts of another as his agent, where there was no agency. Hammerslough v. Cheatham, 84 Mo. 13.
    Where one has wrongfully taken the property of another and sold it, not as agent, but on his own account, mere silence upon the part of the owner does not confirm the sale; the confirmation must rest upon some consideration upholding it, or upon an estoppel. Hamlin v. Sears, 82 N. Y. 329; Workman v. Wright, 33 Ohio Statute, 405; S. C., 31 Am. Rep. 546.
    Messrs. John Stapleton and Benjamin D. Lucas, for appellee.
    We admit that the law is, that if the party to whom the warranty is made, at the time of the making takes the warranty of a third party (that is, one not standing in privity with the vendor as an agent or factor), that the vendor would not then be liable upon the warranty; but that rule is not applicable to the case at bar for several reasons. In the first place, the real warranty in the case at bar is one that was made at the time of the actual making of the contract, and that was a verbal one. In the second place, the law is that when an agent contracts in his own name, either disclosing or not disclosing the principal, then either the agent or the principal may be sued on the contract. Cadder v. Dobell, L. R„ 6 C. P.495; Ewell, Evans on Agency, p. 596; Garard v. Moody, 48 Ga. 96; Cobb v. Knapp, 71 N. Y. 348; McGraw v. Godfrey, 56 N. Y. 610; Colman v. National Bank, 53 N. Y. 388; Ferry v. Moore, 18 Ill. App. 140.

      Authority to an agent to sell, without restriction, carries with it authority to warrant. Woodford v. McClenahan, 4 Gilm. 85; Marckle v. Haskins, 27 Ill. 382; Wheeler v. Reed, 36 Ill. 83; Cochran v. Chitwood, 59 Ill. 53; Schushardt v. Allins, 1 Wall. (U. S.) 359; Randall v. Ceeler, 60 Me. 37; Ganes v. McKinley, 1 Ala. 446; Bradford v. Bush, 10 Ala. 386; Murray v. Brooks, 41 Iowa, 45; Fay v. Richmond, 33 Ver. 25; Palmer v. Hatch, 46 Mo. 585; Nelson v. Cowing, 6 Hill, 337; Hunter v. Jameson, 6 Ired. 252; Tice v. Gallup, 2 Hun, 446; Denning v. Chase, 48 Vt. 382; Milburn v. Belloni, 34 Barb. (N. V.) 607; Kinner v. Gunn, 9 Port. (Ala.) 3 5; Cockle v. Campbell, 13 Ala. 286.
   Conger, J.

This was an action of assumpsit brought by appellee against appellant and her husband, John B. Savage, for the breach of a warranty of a stallion.

In the early part of November, 1885, John B. Savage sold the horse to appellee for $1,200, and was to receive in payment $500 in cash, a note with security for $500, and another horse valued at $200. ■

It is insisted by appellee and denied by Savage, that at the time of the sale, a verbal warranty substantially the same as that afterward given in writing, was made by Savage.

On November 27, 1885, John B. Savage wrote to appellee and directed that the $500 note be drawn in favor of his wife ; that “the property belonged to her in the first place; I want the note drawn in favor of her.” On the oth of December, 1885, the note was made payable to Mrs. Savage, and on the 7th of January, 1886, the following written warranty was executed by John B. Savage, and either delivered or mailed to appellee:

“A Certificate of Warranty.
Le Roy, Ill., Jan. 7, 1886.
This is to certify that the horse, Black Diamond, that I sold to Mr. Eabins, is sound and all right in every respect and is a willing and good covering horse, and a sure foal getter, and is said to breed No. 1 colts. J. B. Savage.”

During the trial the suit was dismissed as to John B. Savage and verdict and judgment went against appellant.

The horse. Black Diamond, had been bought a short time before by John B. Savage, and payment made for him with lands in Missouri belonging to appellant. :

The first question we shall notice, was the horse the property of appellant, and did her husband, in making the sale to appellant, act as her agent? While this question is not free from doubt, the jury have found in the affirmative, and we can not say they were not authorized to do so from the evidence.

Appellant insists that if her husband had the power to sell, he had no authority to warrant.

There can be no question, we think, from the manner in which appellant allowed her husband to deal with and trade her property, and from the additional fact that she subsequently received the $500 note payable to herself, that her husband had gen eral-authority to sell, without restriction, and would therefore have authority to warrant. Woodford v. McCleuahan, 4 Gilm. 85; Cochran v. Chitwood, 59 Ill. 53; Story on Agency, Sec. 102; 2 Kent’s Com., Sec. 41, p. 795.

It is insisted by appellant that appellee, knowing that appellant’s husband was acting as her agent, elected, at the time of the making of the contract, to give exclusive er'edit to her husband, andean not therefore hold her responsible. If the facts assumed were true, the conclusion reached would doubtless be the law.

But we fall to find in the record anything to show that appellee at any time elected to give exclusive credit to John B. Savage. Such a conclusion can not be predicated upon the fact that John B. Savage was made a co-defendant with his wife, nor can it be assumed from the language of the written warranty, for it does not disclose upon its face who makes the warranty.

We think the jury were warranted in assuming that the written instrument was but a part of the original transaction, and should be treated as though executed when the bargain wras struck.

It is conceded that the horse was not as represented by warranty, and we see no reason for interfering with the verdict of the jury. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Wall, J.

text:
    The First National Bank of Springfield v. J. F. Ryan et al.

      Negotiable Instruments—Note—Alteration after Delivery—Principal . and Surety—Guaranty—Construction—-A Iteration.

    1. When an instrument has been materially altered it can not be sued upon in its altered form, nor read in evidence to support an action, but when the holder discharges the burden of proof upon him, by showing that the material alteration was made by mistake and without a fraudulent intention, the right of action upon the consideration for which it was given remains.
    2. An innocent, though material alteration in a promissory note, which does not in fact vary the relations of the parties or affect the liability of the makers, may be explained.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Sangamon County.
    Messrs. Palmer, Robinson & Shutt and Matheny & Matheny, for appellants.
    Messrs. Patton & Hamilton, for appellees.
   Wall, J.

The appellees made and delivered to P. P. O’Donnell their promissory note, bearing date August 30, 1884, for $4,200, payable to the First National Bunk of Springfield, Illinois, at ninety days.

The note was given for the debt of appellee, J. F. Ryan, who was the first signer—the others signing as his sureties— for property purchased of O’Donnell. It was understood hy the parties that the note was to be negotiated by O’Donnell at the bank, and in that way he was to realize the purchase money. O’Donnell went with Ryan and W. J. Reilly to the bank, and when the former presented the note for discount the cashier, Weber, said he would require O’Donnell to guarantee the paper, as the money was to go to his credit, whereupon O’Donnell signed his name at the foot of the note as a maker. The three men then left the bank, and the money, for which the note was discounted, was passed to the erédit of O’Donnell. In a few moments the latter returned, saying he should not have signed the face of the note, but that his name ought to be on the back of it. After a little discussion of the matter the cashier erased O’Donnell’s name at the foot of the note, wrote the words “P. P. O’Donnell, at —” in the space above the line occupied by the name of the bank, and stamped a guarantee on the back, to which guarantee O’Donnell signed his name. The effect of this change in the form of the paper was to make it payable to P. P. O’Donnell, and by him indorsed and guaranteed to the bank, instead of being payable to the bank, and signe- by O’Donnell apparently as a joint maker, but really as a surety. The question is, what consequence the law will attach ■ to this change, assuming it was made without the knowledge or consent of appellees.

It is contended on the one hand that the form and legal effect of the contract being altered, its identity is destroyed and the liability of the signers discharged. On the other hand it is contended that the real object of all was that the paper should be negotiated at the bank, for the benefit of O’Donnell, and that the change, while in form as stated, does not in fact and in substance vary the position which the appellees intended to assume, and therefore they should not be allowed to escape liability on this ground. When the note was left at the bank, with the names of appellees and O’Donnell signed to it, all the signers, including O’Donnell, were jointly liable to the bank for the amount, and might have been so held by suit, and the appellees were all jointly liable to O’Donnell, if he had to pay it, he being their surety. As the paper now is, the appellees are all liable to the bank, and so is O’Donnell, but he can not be sued jointly with them. He may be sued on his guaranty, which includes an assignment of the paper, and if the change had not been made, he might have been sued separately as a signer; but by the strict rules of law, the four appellees might have objected had they been sued without joining the other maker, he being alive and not discharged. In either case the liability of O’Donnell to the bank for the full amount was absolute, and in either case O’Donnell could hold the appellees for the whole sum in case the bank required him to pay it. The result is that there has been a substantial change as to the form of the contract and as to the mode by which the relative rights of the parties shall be ascertained and fixed, but the ultimate liability of the appellees is the same in either case, and if they are required to pay the note in this suit they will be in precisely the position which was contemplated by all parties in the first place, and will be held to the very liability which was in view when O’Donnell signed the note as surety and delivered it to the bank.

As respects the original transaction between the hank and the appellees, the substance of it was a loan of money to them, to be by them paid to O’Donnell, though it was in fact paid to the latter directly and not through them. The consideration moving to the appellees was the money paid to O’Donnell for their benefit.

When an instrument has been materially altered it can not be sued upon in its altered form, nor read in evidence to support an action; but when the holder discharges the burden of proof upon him by showing that the material alteration was made by mistake and without any fraudulent intent, the right of action upon the consideration for which it was given remains. Vogle v. Ripper, 34 Ill. 100.

Where there has been an innocent but material alteration, it has been suggested that a court of equity would restore the instrument to its original form, and there is no sufficient reason why the party himself should not be permitted to undo what he has mistakenly done, provided no other person has become so situated toward the instrument that it will affect him prejudicially.

The burden of proving innocence would be a sufficient safeguard, and when innocence is proved and the prima facie presumption of guilt répelled, it would seem too rigorous to inflict on the innocent a penalty deserved only by the guilty. 2 Daniel Neg. Inst., Secs. 1413, 1414, 1415; 2 Parsons’ Notes and Bills, 570.

In the case of Horst v. Wagner, 43 Iowa, 373, (S. C.) 22 Am. Hep. 255, the payee of a note desiring to transfer it, and being ignorant of the appropriate method, erased his own name and inserted that of the transferee,'but afterward, and before delivery, restored the instrument to its original form, and transferred it by indorsement. It was held the maker was not discharged and the indorsee was permitted to recover. The court said: “ The payee was authorized by the very terms of the note to make it payable to the plaintiff. He was authorized to accomplish the very result which he intended to accomplish. The objection, therefore, is not as to result aimed at, but to the manner of effecting' it. Had the result aimed at not been authorized, it would be more doubtful whether the alteration could be stricken out and the instru. ment restored. But as the alteration in this case was simply an unauthorized manner of accomplishing an authorized result, we can not regard it such an alteration as may not be stricken out, so as to leave the instrument in its original form.”

If the party who made the alteration innocently and with no improper purpose, may restore the instrument to its original condition, what reason is there why the court in which the case is tried may not treat it as though restored ? Why compel the party to ask the aid of a court of chancery or to take the risk of further complication by a second alteration ? If the facts present a case where it is proper to restore the instrument, is it not “sticking in the back” to refuse relief because the instrument has not been restored %

If, however-, it should seem to be going too far in advance of precedent to take this view, there is no question that recovery may be had upon the original consideration. To quote from Vogle v. Ripper, supra:Where the alteration was not fraudulent, although the identity of the instrument may be destroyed, wre think it should not cancel a debt of which the instrument was merely evidence. If there was no attempt to defraud, there is no reason why a court should not assist the creditor as far as it can consistently.”

There were common counts in the declaration upon which such recovery might be had.

If it should be suggested that a restoration of the instrument would again place the name of O’Donnell at the foot as a maker, and that it would have been necessary to join him as a co-defendant, we think it may be answered that the change in the position of his name from the face of the note as maker, to the back as guarantor, can not be regarded as at all material, so far as these appellees are concerned. He was but a surety for them, and in no case could they require him to pay any part of the money. Had there been no change but that, it would be clearly immaterial.

If it should be suggested that in a suit for the original consideration, O’Donnell should have been joined because his name was on the note when it was delivered to the bank, the answer is again that he was but a surety and the transaction was really between the parties to this suit, the consideration being the money loaned by the plaintiff to the defendants. Such an objection must be made by plea in abatement, and .comes too late after plea in bar, unless apparent on the face of the pleadings. 1 Ch. PI. 46,

We have considered the alteration as not fraudulently made, and material only so far as the insertion of O’Donnell’s name as payee is concerned; and it is not important to discuss the effect of other alterations, those immaterial, fraudulent, made by third persons, etc., etc. For a useful collection of authorities upon the subject in general, see the note to Draper v. Wood, 17 Am. Rep. 92.

This case was tried by the court without a jury and the issues found for defendants. In our opinion the plaintiff was entitled to recover. The judgment will be reversed and the cause remanded.

Reversed and reman ded.

CASES IN THE APPELLATE COURTS OF ILLINOIS. Fourth District—August Term, 1889.


author: Green, J.

text:
    Lizzie Smith v. Joseph A. Kurrus.

      Damages for Injury to Personal Property—Vehicle—Negligent Driver.

    1. In an action to recover damages to a vehicle, caused by the defendant’s negligence in remaining within sound of a band of music with a restless horse, this court declines to interfere with a verdict for the plaintiff.
    2. In such a case the owner of the vehicle injured, and not the hirer thereof, is the proper person to bring suit.
    [Opinion filed November 1, 1889.]
    Appeal from the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.
    Mr. William P. Launtz, for appellant.
    Messrs. Alex. Flannigen and Jesse M. Freels, for appellee.
   Green, J.

This suit was brought in justice’s court, and there plaintiff recovered a judgment for $11; defendant appealed to the Circuit Court,- and by consent the venue was changed to the city court, where a trial was had and resulted in a verdict and judgment for plaintiff for $11, and defendant took this appeal. The damages recovered were for injuries to plaintiff of $9.94, occasioned by a collision with defendant’s buggy, brought about by the negligence of the defendant. It appears by the record, one Mrs. Wilson hired a horse and surrey of plaintiff, and drove out to witness the ceremony of laying the corner-stone of a church, and there defendant’s buggy collided with and damaged the vehicle in which Mrs.' Wilson was quietly sitting watching the proceedings. There was a large crowd at the place,and a band of music. A short time before the accident the horse driven by defendant was frightened by the sound of the music, and became so unmanageable that it required the efforts of several men to then prevent him from running away and dashing through the crowd; yet, notwithstanding this, defendant remained on the ground in her buggy until the band again commenced playing, when the horse again became frightened at the sound of the music and ran the defendant’s buggy against plaintiff’s vehicle and damaged it as above stated. We are satisfied with the verdict and judgment.

Appellee, as owner of the damaged vehicle, was the proper party to bring the suit; he, and not his bailee, was the one •having the legal right of action to recover damages for the injury proven. He testified he owned the vehicle and was not contradicted; he also testified as to the amount of his damages. The jury properly found the negligence of defendant caused the injury, and properly awarded plaintiff damages therefor. The court did not err in refusing to give the first and fourth instructions asked on behalf of defendant, or in modifying defendant’s second and third instructions.

Ho error appearing requiring the reversal of the judgment, it is affirmed.

Judgment affirmed.


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    Andrew L. Maxwell et al. v. George W. Buntin, Administrator.

      Negotiable Instruments—Note—Attorney’s Fees.

    1. A provision in a promissory note setting forth that if the same be collected by suit an attorney’s fee of a sum named shall be “taxed and collected as costs,’’ will not warrant a‘Separate action for the recovery of such fee.
    2. Where the court can lawfully tax such fee as costs, and refuses to do so, the plaintiff’s remedy is by appeal or writ of erro r.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Crawford County; the Hon. William C. Jones, Judge, presiding.
    Mr. J. C. Maxwell, for appellants.
    If the plaintiff was not satisfied with the refusal to allow the attorney fee to be taxed, he should have appealed the ease. If he was entitled to any attorney fee, it should have been taxed as costs. Clawson v. Munson, 55 Ill. 397; Halderman et al. v. Mutual Life Insurance Company, 320 Ill. 393.
    A plea of res adjudícala was filed and issue joined thereon, and we think the evidence in the case, and pro] erly offered to be produced, sustains the plea. See Doyle v. Sanford, 26 Ill. App. 158. Where the plaintiff files common counts, without statement that he relies on note alone, failure of consideration may be shown under the general issue. Wilson v. King, 83 Ill. 236. And under the statute oral evidence is admissible. Mann v. S my ser, 76 Ill. 369. The clause in this note, “And if this note shall be collected by suit we agree to pay all costs of such suit, and an attorney fee of forty dollars, which shall be taxed and collected as costs in the same,” provides how the note shall be collected. And if collected at all it must be collected in accordance with the provisions of the note. Dowty v. Holtz, 85 Ill. 525.

      An agreement to allow attorney fees being a departure from the general public policy of this State, should be strictly construed. Cheltenham Imp. Co. v.Whitehead, 26 Ill. App.613.
    In above case the attorney fee was disallowed because suit was brought by cestui que trust instead of trustee. Conceding that the agreement was given to indemnify appellee for expenses in employing an attorney to bring suit, obtain judgment and collect the debt, it was undoubtedly in the mind of the parties that the services should have been necessary to collect the debt. It was not intended to pay an attorney for unnecessary or useless services, however extensive or laborious. Soles v. Sheppard, 99 Ill. 620; Goss et al. v. Bowen, 104 Ind. 207; Kennedy v. Richardson, 70 Ind. 124; Billingsly v. Deam 11 Ind. 331.
    For this reason the objection to the introduction of the record and all the tiles in former suit to show what the attorney had done was well taken. When the tender was made before first suit was tried, the attorney for the plaintiff should have accepted it and saved any further time and expense. Goss et al. v. Bowen, 104 Ind. 207; Farmers and Merchants Rational Bank v. Barton, 21 Ill. App. 407-8. And if he did any more work or made any further expenses he could not recover for the same.
    Messrs. Parker & Crowley, for appellee.
    It has been the uniform holding of our courts that an agreement of the k'nd stipulated for in the note in evidence jn this case is not void, but can be enforced. Dunn v. Rodgers, 43 Ill. 260; Clawson v. Munson, 55 Ill. 394; Mclntire v. Yates et al., 104 Ill. 491; Haldeman v. Mutual Life Ins. Co., 120 Ill. 390; Weigley v. Matson, 24 Ill. App. 178.
    And the case in 21 Ill. App. 403, cited by counsel for appellants, supports this theory. In that case the question of recovering $30 attorney fee for collecting $300 was before the court, and the court held that the provision in the note was not void.
    A party entitled to costs as an officer or party to the suit can sue in assumpsit and recover the same. Doyle v. Wilkeson, 120 Ill. 430.
   Green, J.

This action by Buntin, administrator of James Buntin, deceased, was brought to recover attorney’s fees from appellants as 'makers of a promissory note. Appellee recovered a judgment for $40 and costs in the Circuit Court, to reverse which defendants took this appeal. This is a copy of the note:

“$400. “March 1st, 1888.
“On or before the first day of June, 1888, we promise to pay James Buntin, or order, four hundred dollars, payable at his home, for value received, with interest at the rate of eight per cent, after date. And if this note be collected by suit, we agree to pay all the costs of such suit, and an attorney’s fee of forty dollars, which shall be taxed and collected as costs in the same. ■ “ A. L. Maxwell,
“J. W. Weger,
“ Samuel Seakey.”

Suit had been brought upon this note by the administrator against the makers at a former term of the Circuit Court, and a judgment was there recovered for the full amount of principal and interest and costs, which defendants thereupon paid in open court. Plaintiff at the same time entered liis motion that $40 as attorney’s fee be taxed as costs, but the court refused to so order. We can not hold that plaintiff has a'right by separate action to recover this sum as attorney’s fee. The clause of the instrument relied on to maintain this suit is not an absolute promise to pay the payee $40, but an agreement, if the note be collected by suit, to pay that sum as attorney’s fee, with this further condition : “ which shall be taxed and collected, as costs in the same.” This condition prohibits the institution of a separate suit to recover the attorney’s fee, and restricts the remedy for its collection to the method prescribed, by having it taxed and collected as costs in the suit upon the note; and if in that suit the court could lawfully tax such fee as costs, and refused to do so, the plaintiff’s remedy was by appeal or writ of error. Entertaining the views here expressed, we reverse the judgment and decline to remand the cause.

Judgment reversed.


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    Louisville, Evansville & St. Louis Railway Co. v. George Lewis.

      Railroads—Damages for Injury to Stock—Fence—Practice—Evidence.

    1. A verdict will not be set aside where the evidence is conflicting, unless it appears that the jury have been actuated by passion or prejudice.

      ‘¿. In an action against a railroad company to recover damages for the killing of a horse, this court declines to interfere with a verdict for the plaintiff.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.
    Mr. J. R. Creighton, for appellant.
    Messrs. Hanna & Hanna, for appellee.
   Green, J.

The question presented by this record and by .the argument of counsel is simply this: Does the evidence sustain the verdict?

No exceptions were taken to the rulings of the trial court touching the admission of evidence and giving or refusing instructions. The evidence was conflicting upon the material facts, and it was the province of the jury to settle this conflict; it was their duty to weigh and consider the evidence introduced on behalf of the respective parties, and find out the truth; and the presumption is that their finding is correct. A verdict will not be set aside where the evidence is conflicting, unless it is apparent the jury have been actuated by passion or prejudice. East v. Crow, 70 Ill. 91; Jaeger v. Dieden, 73 Ill. 612; Miller v. Balthasser, 78 Ill. 302.

In this case the damages awarded were not excessive,.and we see no reason for disturbing the verdict or reversing the judgment. The judgment is affirmed.

Judgment affirmed.


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    The St. Louis Bridge Company v. Sarah E. Fellows, Administratrix.

      Railroads—Bridge Company—Personal Injuries—Defective Trade—■ Repairs—Special Findings.

    In an action to recover from a bridge company damages for the death of one of its employes, alleged to have been occasioned by the negligent construction of its roadbed and track and its failure to keep the latter in proper repair, this court holds that the verdict for the plaintiff is not, justifi >d by the evidence, the special findings up in which the same must be assumed to have been based being contradicted by, and not reconcilable with, the facts proven.
    [Opinion filed November 1, 1889.]
    Appeal from the City Court of East St. Louis, St. Clair County; the Hon. B. H. Caney, Judge, presiding.
    Messrs. G. and G. A. Koerner, for appellant.
    Messrs. William P. Launtz and Jesse M. Freels, for appellee.
   Green, J.

This suit was brought by appellee under the statute to recover damages for the death of her son, the intestate, alleged to have resulted from the negligence of the defendants.■ The jury found defendants guilty and assessed plaintiff’s damages at $5,000. Defendant’s motion for a new trial was overruled, the court entered judgment on the verdict, whereupon defendants took this appeal. The negligence charged is failure to keep engine in proper repair and condition, failing to properly construct roadbed and track, and failing to repair track and make it reasonably safe. No evidence showing the engine to have been out of repair was introduced, and appellee abandons that charge, but insists it appears by the evidence that the track at place of accident, built two years prior thereto, was dangerously defective in its construction and was suffered by defendant to remain in such dangerous and defective condition until the time of the accident, and in consequence of such negligence deceased was killed, and without fault on his part. At the time of the accident he was a switchman in defendant’s employ, was on the foot-board of a switch engine that was passing from one track onto another in the defendant’s yard, when the engine suddenly jumped the track, and deceased either jumped or fell off, and the derailed engine struck him, and the injury causing his death resulted. All the testimony except that of one witness was given by witnesses introduced and examined on behalf of plaintiff; their credibility she can not impeach; and each and every one of, them who knew, or claimed to know the condition of the track at the place and time of accident, or immediately before and after it occurred, testified the track then and there was in good safe condition and repair.

Some of these witnesses say if the track is all right and the engine all right and running at a moderate rate of speed it ought not to jump off the track; but they uniformly add, such accidents do occur where neither the track nor engine appear to be out of repair and no cause can be discovered. The cpfly expert introduced and examined as to the mode of construction was Taussig, a civil engineer employed by defendants, and by his testimony it appears the track and switch at place of accident were properly constructed, of the best materials, and in the safest and most approved mode known. If he was mistaken," and the track at place of accident was dangerously defective in its construction, as claimed by appellee, it seems strange the testimony of other experts was not procured to support such contention, instead of the testimony of Hakes, Bennett and Wilson, relied on for that purpose. Hakes admitted he knew nothing of the business of constructing tracks or switches. Bennett did not testify that the mode of construction was unsafe or improper, but did say these yards are the best outfit of yards he ever worked in, and are put up in the best shape; and the statement in Wilson’s testimony that the rail where the engine went off was probably not properly laid, is a mere opinion and not based on a personal examination. We find no evidence establishing the charge that the track and roadbed at place of accident was not properly constructed, and the special findings of the jury indicate they did not believe such charge was. proved. In answer to the question, “What officer, agent, employe or servant of one of the defendants wras guilty of negligence resulting in the death of Fellows?” they say, “The officer in charge of said track repairing.” The answer to the question, “In what did the negligence of such officer, agent or employe consist?”is, “In failing to keep said track in proper condition.” These answers fairly imply the jury found the negligence to be a failure to repair track and thus keep it in safe condition, and not a failure to construct it properly. These special findings are contradicted by, and are not reconcilable with, the facts proven, and the general verdict, which we must hold was based on these findings, ought to have been set aside below. St. L. & S. E. By. Co. v. Britz, 72 Ill. 257. We discover no evidence in this record justifying the verdict, and reverse the judgment and remand the cause.

Reversed and rememded.


author: Green, P. J.

text:
    Henry Schmitz v. Village of Germantown.

      Municipal Corporations—A dditions—Streets—Statutory Dedication— Failure to Accept—Estoppel—Instructions.

    1. An acceptance- is as necessary to complete a statutory dedication as one at common law.
    2. In the case presented, this court holds that the failure.of the municipality to accept the statutory dedication of the street in question estops it to open the same to the injury of a person having had undisturbed possession of a portion thereof for thirty-two years.
    [Opinion filed March 1, 1889.]

      In error to the County Court of Clinton County;. the Hon Jesse Jones, Judge, presiding.
    Messrs. Van Hoorebeke & Ford, for plaintiff in error.
    Mr. M. P. Murray, for defendant in error.
   Green, P. J.

This suit was brought by Henry Schmitz before a justice; a trial there resulted in a verdict and a judgment for plaintiff. The village appealed to the County Court, where the verdict and judgment were against Schmitz, and he sued out this writ of error.

So far as the evidence is concerned, we perceive no essentia] difference between this case and Schmitz v. Kitterholtz, 20 Ill. App. 614, where the. facts and the law applicable thereto are so fully stated in the "opinion as to much abridge our labor in this case. The locus in quo is claimed by defendants in error to be one of its streets in Schwake’s addition to Germantown, the plat of which was acknowledged and filed for record by Schwake March 8, 1853. In the fall of 1852 plaintiff, claiming as owner under a contract of purchase with Schwake, entered into possession of an acre of land embraced in the territory so platted, received and filed for record his deed therefor, March 2, 1853, erected the fence and building on the said premises at the time he took possession, which were torn down by defendant’s street commissioner, and from the fall of 1852, during all the time up to December, 1885, when the alleged trespass was committed, plaintiff remained in the undisturbed peaceable possession of said land, including the locus in quo, maintained and from time to time repaired the said fence and building thereon, and no acceptance by the village of said addition is shown or evidenced by any action of the board of trustees, or by any use, or by opening, repairing, or assuming control over the streets by said village, during a period of more than thirty-two years after said plat was acknowledged and recorded.

We think the doctrine of estoppel in pais applies here, and the village, by non-acceptance of the offer of dedication, and its acquiescence for so long a period after its organization in plaintiff’s continued possession and open exercise of dominion over the locus in quo, whereby he was induced to arrange the improvements thereon for a residence and make expenditures and place himself in a position he would not otherwise have occupied, is estopped to now set up its right to open said street as a defense to this action. C. & F. R. W. Co. v. People ex rel. City of Elgin, 91 Ill. 251; C. R. I. & P. R. R. Co. v. Joliet, 79 Ill. 25.

We are also of opinion that an acceptance by the village was necessary to complete the dedication offered by Schwake in 1853, and that an acceptance is as necessary to complete a statutory dedication as it is to complete a common law dedication. Littler v. City of Lincoln, 106 Ill. 353; Hamilton et al. v. C., B. & Q. R. R. et al., reported in Ad. Sheets No. 2, Vol. 124, Ill. Rep., page 235. In the latter case, in the opinion, it is said: “An acceptance is necessary to make a complete dedication under the statute; until acceptance the fee does not vest in the municipality, but remains in the original proprietor; hence, a conveyance of the lots before acceptance carries the title to the center of the street; the fee in the street passed to the grantee by the conveyance; not the fee absolutely, but the fee burdened with the offer of dedication, which had been made, but not accepted. Gebhardt v. Reeves, 75 Ill. 301, went upon the assumption that there had been a complete dedication before the conveyances there were made; no question of acceptance arose in that case. And the court also say, .referring to cases in 11th and 13th and 75th Ill. (cited in the brief of defendant in error in this case), reliance is placed upon a literal reading of the statute that such plat shall be deemed in law and equity a sufficient conveyance to vest the fee simple * * * in trust to and for the purposes sot forth and expressed, and upon expressions which are found in (said cases cited), that, £ in the recording of the plat the fee in the streets eo instanti passes to the corporation.’ ”

“ The acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys in the corporation of the town; but in these cases there was no question raised or considered as to acceptance of the dedication by the municipality.” It is also further there said: “It is well settled at common law, to make a complete dedication there must be acceptance—not any formal act of acceptance, but there must be user, or some other act indicating acceptance by the authorities, in order to complete the dedication; and this principle applies to statutory dedications, by the making, acknowledging and recording of a town plat, as well as a common law dedication, as has been expressly decided by this court;” citing several cases. We apprehend there can be no doubt as to the meaning of this decision, or that by it the Supreme Court announces the doctrine that an acceptance by the municipality of a statutory dedication, is as necessary to complete it as it is to complete a common law dedication; and it would seem entirely logical if it be conceded the municipality could not open, improve and take control of streets platted in an addition dedicated under the provisions of the statute until the dedication was accepted; that the municipality could not insist upon aright to exercise such control, and direct its officer to tear down a fence and building erected on the space left for a street on the plat of said addition, without acceptance of the dedication, under the pretext such structures were obstructions in a street of the corporation. However this may bej we regard the cases we cite as decisive of the point that an acceptance of the dedication offered by Sc-liwake was necessary to make it complete and vest the fee of the street in the village of Germantown, and such acceptance not having been shown, the defense based on a dedication fails. It follows that the instructions stating the law differently and in conflict with the views herein expressed are, in our opinion, erroneous; that the motion for a new trial ought to have been sustained, and it was error to overrule it and enter judgment on the verdict. The judgment is reversed and cause remanded.

Reversed and remanded.