text:
    Gabriel Pepper, Surviving Partner, v. Catherine Pepper, Administratrix.

      Administration—Real Estate as Partnership Property—Tenancy in Common—Rents and Profits—Parties—Former Adjudication.

    1. Real estate becomes partnership property, as a general rule, when it has been pui-chased for partnership purposes, appropriated to such purposes and paid for with partnership funds.
    2. The legal title of partnership realty is held by the partners as tenants in common, subject in equity to the partnership debts. When the firm debts are piid all the incidents and qualities of real estate revive. It then descends to the heir, and the rents, issues and profits pass to him and not to the administrator.
    3. In the case presented, it is held: That the farm in question was owned by the partners as tenants in common; that upon the death of one of them, the other is not liable to the widow, as administratrix, for rents and profits; and that the doctrine of res adjudicata applies with respect to former proceedings for assignment of dower and partition, although the widow now sues as administratrix.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Happy & Travous, for appellant.
    Appellee, as a party to the partition suit, is estopped by the decree and findings of the court and her own conduct in said cause from now setting up any claim for' rents, or claiming that said land was held otherwise than in common. Bigelow on Estoppel, pages 60, 65, 148, and chapter 19; Wells’ Res Adjudicata and Stare Decisis, Secs. 17, 29, 64; Hamilton v. Quimby, 46 Ill. 90, and notes; Wright v. Dunning, 46 Ill. 271, and notes; Hicks v. Chapin, 67 Ill. 375; Hanna v. Read, 102 Ill. 596; Montague v. Selb, 106 Ill. 49.
    Even if the land had been owned and cultivated by appelant and his brother as partnership property, unless it, or the rents and profits arising therefrom, were needed for the purpose of liquidating firm debts and settling the account between the partners, the Probate Court has no jurisdiction in the matter. The- survivor’s accounting must be with his co-tenants. Strong v. Lord, 107 Ill. 25; Parsons on Partnership, Sec. 373; Hartnett v. Fegan, 3 Mo. App. 1; Lang’s Heirs v. Waring, 25 Ala. 625; Shearer, adm’x, v. Shearer, 98 Hass. 107; Scruggs v. Blair, 44 Miss. 406; 2 Lindley on Partnership, page 664, and notes; Baker v. Wheeler, 24 Am. Dec. 66; Wilcox v. Wilcox, 13 Allen, 352.
    Messrs. Metcalfe & Metcalfe, for appellees.
    There being nothing in the record to show the question in controversy was adjudicated in the former suit, the judgment constitutes no bar by way of estoppel to this action.
    “A judgment is conclusive only upon the matter which was directly in issue upon the former trial.” Herman’s Law of Estoppel, pages 183 and 184.
    In the partition suit claimed as a bar to this suit for rents the appellee was sued as an individual, and in this case she sues as an administratrix.
    Judgments, as a general rule, conclude the parties only in the character in which they sue or are sued, and therefore a judgment for or against an administrator, assignee or trustee, as such, does not ordinarily preclude him in an action affecting his own proper person from disputing the matters decided, or vice versa. Bigelow on Estoppel, page 65, and note, with authorities.
   Wilkin, J.

For some years prior to February 10,1884, appellant and his brother, appellee’s intestate, were in partnership, their principal business being farming. They owned about one hundred acres of farm land which they cultivated; also a considerable amount of other property, notes, accounts, etc. On the death of John 0., at the above mentioned date, appellant took possession of the joint effects, filed an inventory, etc., and on the 15th day of February, 1886,' in answer to a citation issued at the instance of appellee, filed a report in the County Court of Madison County of his actings and doings as such surviving partner. This report was excepted to by appellee, because he failed to account for rents and profits of the land above mentioned, and the exception was sustained both in the County Court and on appeal to the Circuit Court. In the latter there was a trial by jury and judgment rendered against appellant for §541.09, from which an appeal was prayed and allowed to this court.

The only question which we need consider is whether or not, under the facts proved, appellant could be called upon in this proceeding to account to the administratrix of his deceased partner for rents received, and the use of the real estate owned by them at the time the partner died.

Primarily this question is to be settled by determining whether or not the real estate was partnership property. Beal estate becomes partnership property, as a general rule, when three things concur: First, it must have been purchased for

partnership purposes; second, appropriated to such purposes; third, paid for by partnership funds. Parsons on Partnerships, Sec. 2, page 364.

The only evidence found in the. entire record as to the ownership of this land is that introduced by appellee from a deposition of -appellant, tiled in a chancery proceeding for the assignment of dower and partition of premises, to be more fully noticed hereafter.

That evidence is as follows: “John 0. Pepper and I owned the said lands in partnership. I own an undivided one-half of them yet, and at the time of his death he was the owner of the other one-half of said lands. He and I have owned and occupied the said lands from 1862 until the time of his death. At the time of John 0. Pepper’s death, he and I were equal owners of the said lands.”

Henry Eobinson swears that he sold them (the brothers) the land as administrator, but he does not state in what name it was purchased, how it was paid for or to whom it was conveyed. Appellee, and perhaps other witnesses, state that it was owned in partnership, and so does appellant. These, however, are but statements of conclusions, contradicted by the facts sworn to by appellant, and in no way disproved. The evidence of appellant shows that they were tenants in common, each owning an undivided one-half.

It is true that it might have been so held and still be partnership property, but that could only be so when the proof established the three elements above mentioned. “But although it be held in the joint name of two or more persons, if there be no proof that it was purchased with partnership funds for partnership purposes, it will be considered as held by them as joint tenants or tenants in common.” Parsons on Partnership, Sec. 2, page 365. Again, it is said whether real property shall become partnership stock or not, is a question of intention. Hoxie v. Carr, 1st Sumner, 188; Fall River Whaling Co. v. Borden, 10 Cush. 462.

While it appears from the evidence that the brothers used the land for the purpose of carrying on their partnership business of farming, there is no proof whatever of an intention that the land itself should be a part of the partnership stock. It is clear from the proof made by appellee that appellant at no time so considered or treated it. She introduced in dence the inventory of partnership assets filed by them at the February term of the County Court of Madison County, 1884, sworn to by him as a true and correct inventory, in which no mention is made of lands. At the October term of the Circuit Court of said county, 1885, as she shows, he filed his bill to assign her dower and have partition made of these same lands, in -which he alleges that they are held by himself, appellee, and others who inherited from the deceased brother, as tenants in common, and, as before stated, while he testified on that hearing as a conclusion, that they were held as partnership property, he clearly shows by the facts that they were not.

We are, however, unable to perceive how, under the rules of law, appellee can escape the binding force of the decree rendered in that proceeding as res adjudicata of the present controversy.

That portion of the bill filed in that case introduced in evidence in this by appellee, so far as it sets forth the title,' is as follows: “ Tour orator further represents that, at the time of the death of said John G. Pepper, he and your orator were the owners in fee simple of the following described real estate: * * * Tour orator is the owner of the undivided one-half of said premises in fee simple absolute as purchaser, and also of the one twenty-eighth part thereof subject to the dower right of the said Catherine Pepper, as heir of his said deceased brother; the said Catherine, widow, is the owner in fee of the undivided one-fourth part of said land and is entitled to dower in another undivided one-fourth thereof.” After describing the interests o‘f the other parties, from which it appears that they each take as heirs of the said John C., it is averred that the aforesaid is the only real estate owned by the parties in common.

Appellee filed her answer to that hill, admitting the death of John C. leaving her his widow and the heirs as therein stated, and" that he was seized in fee of the land mentioned in the bill. A decree followed in which, among other things, the court found that at the time of his death the said John C. was the owner of the undivided one-half as co-tenant with the said Gabriel Pepper of the following described real estate, etc., describing the same lands here in question. The premises being reported not susceptible of division and appellee having filed her consent in writing they were sold free from her dower and the proceeds divided.

Appellee insists that that adjudication is no bar to this, because, as she says, the question of rents was not then adjudicated. The vital question upon which depended her right, as administratrix, to demand the rents, namely, was the land owned by the brothers as tenants in common, or was it partnership stock, was directly in issue and adjudicated, and the decree of the court pronounced upon it.

In other words, if the real estate was owned by appellant arid his brother as tenants in common, so that upon his death the one-half descended to his widow and other heirs, thereby making them tenants in common with appellant, it must be conceded that any accounting by appellant for rents and profits should be as co-tenant and not as surviving partner, and with his co-tenants, the heirs of deceased, and not with his representatives. The manner in which they were held being decided in the chancery suit can not be re-tried in this, Hanna v. Read, 102 Ill. 596, 602; Tilley v. Bridges, 105 Ill. 336; Hamilton v. Quimby, 46 Ill. 90 ; Wright v. Dunning, 46 Ill. 271; Hicks v. Chapin, 67 Ill. 375. It is also insisted that inasmuch as appellee was then sued as the widow and heir of her husband, John C. Pepper, and is now claiming as his administratrix, the doctrine of res adjudícala does not' apply.

The question then involved being the same as here raised, whether the lands in question should be treated as going to the heirs or representatives of the deceased partner, and, so far as the evidence shows, she, being the real party in interest in both cases, is barred, the real parties in interest being the same so far as her rights are involved. But we also hold that the decree in the partition proceeding was correct even on the theory that the lands were partnership property.

notwithstanding the conflict of authority on the subject, it is the settled law of this country that the legal title of the partnership realty is held by the partners as tenants in common subject in equity to be used in settling the liabilities of the copartnership; that when the debts of the firm are paid, “ all the incidents and qualities of real estate revive,” and it will become subject to dower, and descend to the heir as in any other tenancy in common. Freeman on Co-tenancy and Partition, Sec. 118. “ Therefore, in this country, when the firm has been dissolved, or when it is evident that it can no longer continue its business, real estate constituting part of its assets may be divided by compulsory partition if it be shown that such realty will not be required to satisfy any liabilities of the copartnership.” lb., Sec. 443, and cases cited in Rote 3. The correctness of this doctrine is clearly recognized in Strong et al. v. Lord et al, 107 Ill. 25. See also Parsons on Partnerships, 272 and 273; Lang’s heirs v. Waring, 25 Ala. 625; Shearer v. Shearer, 98 Miss. 107; Scruggs v. Blair, 44 Miss. 406.

It is conceded here that the personal assets of the firm largely exceeded its liabilities. Appellee proves herself, by the introduction in evidence of the former report of appellant as surviving partner, that she has received a considerable sum of money after payment of the partnership debts. Therefore, on the proof made, the widow and heirs of John 0. Pepper, upon his death, had the right to have the one hundred acres of land treated as real estate, and were entitled to an assignment of dower and partition thereof at once. Which being-true, all the rents, issues and profits of the same passed to the heir and not to the administratrix.

We find nothing, either in our statute or the common law (of which the statute' is but declaratory), which gives the administratrix of the deceased partner, under the evidence in this case, any right to demand of the .surviving partner the rents and profits of this land.

Finding no theory of the evidence on which the judgment below can be sustained, we shall not prolong this opinion by an examination of the points made on the instruction.

Reversed and remanded.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    Illinois & St. Louis Railroad & Coal Company v. John Beaird et al.

      Carriers—Discrimination in Rates—Difference in Distance—Common Law Rules—Defective Declaration.

    1. The common law imposes no duty upon common .carriers to charge a higher rate for transporting goods a longer distance than like goods a shorter distance. But at common law such carriers are not permitted to charge extortionate rates.
    2. In the ease presented, it is held: That the declaration does not sustain the recovery, there being no averment of unjust discrimination nor that the rates charged plaintiffs were extortionate.
    [Opinion filed October 5, 1887.]

      Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Koerner & Horner, for appellant.
    The facts in this case can only be claimed to make a case of unjust discrimination, if distance, alone is to be considered in determining whether a charge is just or not. But such is not the case. Distance is frequently subordinated to other consideration and must be. All facts bearing upon the particular question must be inquired into. Houston & Texas R. R. v. Rust, 9 A. & E. R. R. Cases, 123, Supreme Court, Texas; Crouch v. R. R. Co., 2 C. & K. 789; Parker v. G. W. R. R., 11 C. B. 545; Gaston v. R. R., 101 E. C. L. 112; Rogan v. Aiken, 9 A. & E. R. R. Cases, 201; Oxlade v. N. E. R’y, 3d Jur. N. S. 637.
    In Ransome v. Eastern Connecticut R. R., 1 New & Mac. 63, in which it is said that “in determining whether a railroad company has given undue preference to a particular person, the court may look at the fair interests of the company itself and entertain such questions as whether the company might not carry larger quantities, or for longer distances, at lower rates per ton per mile than smaller quantities, or for shorter distances, so as to derive equal profits to itself.” See also Hill v. St. L., A. & T. H. R. R. Co., 11 Ill. App. 258.
    Mr. Edward L. Thomas, for appellees.
    The defendant admitted that the charge was same for greater distance as for shorter distances for like services, and by its superintendent that commissioners’ rates were proportionally just, but claimed that operatives at a greater distance could not compete, if such proportionate charges were maintained.
    This court and the Supreme Court have clearly and distinctly declared the case made out by this record to be one of unjust discrimination.
    This court in the case of the St. L., A. & T. H. R. R. Co. v. Hill, 14 Ill. App. 579, says at page 585 : “ In the case of the Chicago & Alton Road v. The People, the doctrine of the common law as to prohibited discriminations was broadly stated, and it was held to apply as between different communities or localities, as well as between different individuals of the same town, and to include the case of the same or a greater charge for the shorter of two given distances,'the shorter distance being a part of the greater distance; and it would seem the rules necessarily include this, as it is mathematically true both that the whole includes the part, and that the part is not equal to the whole.” See C. & A. R. R. Co. v. People, 67 Ill. 11.

   Green, P. J.

Appellees brought suit in case against appellant in the court below and at the February Term, A. D. 1886, the cause was tried by the court without a jury, and resulted in a finding and judgment for plaintiffs for $1,550 and costs of suit, and defendant thereupon took this appeal. Plaintiffs’ amended declaration, upon which the cause proceeded to trial, was in substance that John Beaird and Charles Schroeder, late partners under the firm name of Beaird & Company, complained of the Blinois & St. Louis Eailroad and Coal Company: for, that the said defendant in February, 1880, was a railroad corporation, operating a railroad and branches extending from the City of Belleville, Illinois, to the bank of the Mississippi Eiver, opposite the City of St. Louis, Missouri, to a point commonly known as the Pittsburg Dyke, and defendant had a branch or switch extending from its main track in said City of Belleville, in a northerly direction, into the land of one Becherer, and that along the line of said switch and branch and along the main track of said railroad, there were twenty coal mines connected with the main line of the railroad by switches; that the railroad company every day received a large number of cars of coal from said mines and transported said coal over said branches and switches, and over its main line to said Pittsburg Dyke; that defendant collected, as hire for transportation of such coal from the persons operating said pit, the sum of two and one-half cents per bushel for each bushel so transported.

Plaintiffs further aver that at said time, and on each and every day from said time to the commencement of this suit, the plaititiffs were operating two coal mines situated on the line of said road ; that on each day defendant received coal for transportation on its switch connected with its main track to be transported to said Pittsburg Dyke, altogether receiving from the plaintiffs during said time 5,000,000 bushels of coal, and for so transporting said coal to the Pittsburg Dyke charged the plaintiffs two and one-half cents a bushel for every bushel of coal transported ; and that the coal transported from the Becherer mines was the same class of freight transported in the same manner, in the same direction and to the same place as the said coal transported by defendant from the coal mines of the plaintiffs. The plaintiffs charged that the coal hauled for the owners of the Becherer was transported by defendant a distance of sixteen miles, and that the coal hauled by the defendant for the plaintiffs was hauled a distance of only eight miles; and that the defendant collected the same sum from the plaintiffs as they collected from the owners of the Becherer mines, each one being charged two and one-lialf cents a bushel, to the plaintiffs’ damage of $5,000.

The averments in this declaration, relied on by the pleader as sufficient to charge defendant with an injury to plaintiffs, recoverable in this action, are that defendant charged and collected from operators of coal banks located on its road, the same price for transporting coal from their mines over its road sixteen miles, that it charged plaintiffs for like transportation of coal from their mines for a distance of eight miles. This suit is not brought under the statute, but at commqn law, and it will be observed, there is no averment that the discrimination was unjust or injured the plaintiffs, nor is the rate charged and collected from them by the defendant for transportation averred or proved to have been an extortionate rate. • 0

At common law, no duty is imposed upon common carriers to charge a greater rate or price for transporting goods a longer distance, than for a lesser distance, for like transportation of like kind of goods over their lines. Hence no action would lie at common law against such carriers for failing to charge and collect a greater rate for such greater distances, but common carriers are not permitted, at common law, to charge shippers extortionate rates. From what has been said it follows that no cause of action was averred and proved by plaintiffs for which they had a right to recover. Hence the finding and judgment of the Circuit Court is erroneous and must be reversed.

Reversed and remanded.


author: Pillsbury, J.

text:
    Joseph Miller v. Ohio & Mississippi Railway Company.

      Personal Injuries—Negligence—Fellow-Servants—Engineer and Laborer on Construction Train—Practice—Direction to find for Defendant.

    1. A laborer upon a construction train and the engineer are fellow-servants. Such laborer can not, therefore, recover from the master for a personal injury caused by the negligence of the engineer where the competency of the latter is not in issue.
    2. Where the plaintiff’s evidence, with all proper inferences of fact to be drawn therefrom, is insufficient to support a verdict for him, the court may properly direct a verdict for the defendant.
    [Opinion filed October 15, 1887.]
    In error to the Circuit Court of Biehland County; the Hon. William C. Jones, Judge, presiding. -
    This action was brought by the plaintiff in error to recover damages for personal injuries, received by him while in the employ of the railway company. The declaration consists of a single count and contains substantially the averments following : That plaintiff was in the employ of said railroad company as a laborer on its track, in making repairs on said track, but in no way connected with the management and operation of defendant’s cars on said track; that plaintiff was working under the direction of Elmer Hanover, who was then in the employ of defendant as a boss of extra section hands to work on track, repairing, etc.; that while so engaged as such laborer bn said track, plaintiff was ordered by said section boss, under whom he was working, to go upon one of the dirt cars of- said defendant, connected with a construction train then and there standing upon said railway track, and clear out the dirt, sand and gravel in said car connected with said train, and that to said train was attached a locomotive for the purpose of moving said train of cars, which said locomotive was under the direction and management of one Childs as engine driver and engineer; that while plaintiff was on said car removing the dirt, sand and cinders from said car under direction of said section boss, the engineer of said train started the train without giving any signal, starting the train with a sudden jerk which threw plaintiff over the end of the car on which he was so working, and from which he was thrown upon the track of said defendant, and a following car attached to said train; plaintiff, without any negligence or carelessness on his part, was run over and so crushed and injured as to lose his left hand and left leg; and that by reason of the recklessness and carelessness of said engine driver, plaintiff sustained damages to the amount of §10,000.
    The general issue was pleaded and a trial had, when, at the conclusion of plaintiff’s evidence, the defendant moved the court to instruct the jury to return a verdict for the defendant, which was done and the plaintiff sued out this writ of error.
    It appears from the evidence that the plaintiff below commenced work for the defendant in April, 1886, and continued in its employ until October of that year, when he was injured by falling off a car and being run over by the car following. He was employed as one of an extra gang of laborers to work npon the road whenever needed, and doing any bind of labor-required in keeping the road-bed and track in order. Sometimes he would be engaged in surfacing the track, and at other-times in assisting in loading sand and gravel npon cars at the pit and unloading them when moved to the desired place upon the line of the road. On the day before his injury he went with the construction train to the gravel pit and having loaded the cars, the train ran back to Olney, bringing the laborers with it, where it laid over night, and the next morning again taking the laborers on board, ran to the place on the road where it was desired to unload the cars and commenced to unload them. The plaintiff assisted in unloading the flat cars composing a part of the train, and the dump cars, not so operating as to completely clear themselves of the sand, the plaintiff, with others, was directed by his boss to get upon the dump cars and loosen up the sand so the car would discharge itself. He did so, and standing at the end of the car, struck his shovel into the sand to loosen it,.and while in the act of striking the second blow the t, ain, without warning, was suddenly started by the engineer and the plaintiff was thrown upon the track between the cars, and the car following ran over him, seriously and permanently injuring him.
    Messrs. Allen & Fritchey, for plaintiff in error.
    Motions to instruct the jury to find for defendant are in the nature of demurrers to evidence. They admit not only all the testimony proves, but all it tends to prove. To authorize the court to take a case from the jury the facts must be undisputed. Frazier v. Howe, 106 Ill 563; Penn. Coal Co. v. Conlon, 101 Ill. 93, 106; Park v. Ross, 11 How. 362; Doan v. Lockwood, 115 Ill. 490; Crowe v. People, 92 Ill. 231.
    The question whether one servant is in the same line of duty and so associated with another servant of the same master as to relieve the master from liability for an injury to one, resulting from the negligence of the other, is a question of fact for the jury and not a question of law for the court. C. & N. W. R. R. Co. v. Moranda, 108 Ill. 576; North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57; I. & St. L. R. R. Co. v. Morganstine, 106 Ill. 216.
    To exonerate a railway company from liability for an injury to one employe, through the gross negligence of another employe of the company, both must be engaged in the same line of duties. T., W. & W. R. R. Co. v. O’Conner, 77 Ill. 391; C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; North Chicago Rolling Mill Co, v. Johnson, 114 Ill. 57.
    A mere day laborer on the track of a railroad company may recover for an injury caused by the gross negligence of an engine driver, if free from negligence on his part. T., W. & W. R’y Co. v. O’Conner, 77 Ill. 391; North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57.
    A workman on the railroad track and an engineer on a locomotive are not in the same line of employment, and the former may recover of the company if injured through the negligence of the latter. P., Ft. W. & C. R’y Co. v. Powers, 74 Ill. 341; C. & N. W. R’y Co. v. Bliss, 6 Ill. App. 411; Campbell v. N. Y. Central R. R. Co., 35 How. R. p. 506; C. & St. P. R. R. Co. v. Lundstrum, 16th Neb. 254; S. C. 49 Am. Reps. 718.
    Unless an employe, who receives an injury through the negligence of a co-employe, is so associated with another in his work as to be able to counsel and advise with him, the common master is liable for the injury. T., W. & W. R’y Co. v. O’Conner, 77 Ill. 391; North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57; I. & St. L. R. R. Co. v. Morganstine, 106 Ill. 216; C. & N. W. R. R. Co. v. Moranda, 108 Ill. 576; C. & W. I. R. R. Co. v. Bingenheimer, 116 Ill. 226.
    Messrs. Pollard & Werner, for defendant in error.
   Pillsbury, J.

The testimony introduced, together with all inferences of fact that the jury might legitimately draw therefrom, was sufficient in our opinion to sustain a finding that the plaintiff was injured through the negligence of the engineer in charge of the locomotive attached to the train, in suddenly starting it without warning, and that at the time the plaintiff was not guilty of contributory negligence. If these facts alone would entitle the plaintiff to recover, then the court erred in directing a finding for the defendant. The evidence of the plaintiff, however, clearly established the fact that he was engaged with the construction train as a laborer upon it, and it is insisted that he was a fellow-servant with all the other employes of the defendant engaged in the loading or unloading the cars or in operating the train including the engineer and conductor.

The action of the court below was based upon this feature of the case, and if, from the evidence adduced, it so clearly appeared that the injury to the plaintiff was caused by the negligence of a fellow-servant that a finding based thereon, with all proper inferences of fact to be properly drawn therefrom that they were not fellow-servants, could not and would not be susta’ned by the courts, then, under the authority of Simmons v. Chicago & Tomah R. R. Co., 110 Ill. 340, Abend v. H. & T. R. R. Co., 111 Ill. 202, and City of East St. Louis v. O’Flynn, 119 Ill. 200, the court did but its simple duty in ruling as it did upon the motion to instruct the jury to find for defendant. We have most carefully examined the evidence contained in this record to ascertain if there was any fact or circumstance that would take this case out of the rule announced in the Cox case, 21 Ill. 23, the Keefe case, 47 Ill. 108, the Britz case, 72 Ill. 256, and the Durkin case, 76 Ill. 395, but are unable to distinguish this case from those cited in the principles there held applicable. In the cases referred to it was distinctly held that a laborer upon a construction train was a fellow-servant with the engineer and conductor, and that he could not recover for an injury received through their negligent acts where their competency was not in issue. These cases were referred to and the doctrine announced in them re-affirmed by the late case of Abend v. T. H. & T. R. R. Co., supra, and applied to the case of a blacksmith in the employ of the defendant, who was required to go out upon the line as one of a crew of a wrecking train, and while upon the road was killed by the negligence of the engineer, who was also acting as conductor of the train. In this last ease the trial court excluded the evidence from the jury, and this action was approved by the Supreme Court. If that case is to be treated as a binding authority upon the lower courts, and as such we are bound to consider it, it would seem to be a srifficient warrant for the action of the Circuit Court in the case at bar in directing a finding for the defendant. It is undisputed that the plaintiff below was, on the day he was injured, one of the laborers engaged upon the construction train, a work as much within the line of his duties as any other which he was called upon to perform. It is true he said he had nothing to do with the running of the train, and had no authority over the engineer or conductor, but these facts alike appeared in the cases cited, and were held not to have a controlling influence upon the question involved. Without further discussion we are constrained to hold that the action of the court was justified in view of the cases above cited, and we therefore affirm, the judgment.

Judgment affirmed.


author: Per Curiam.

text:
    Matilda Bingham v. Silas Brumback et al.

      Practice—Motion to Dismiss Appeal—Reneival of—Adjournment of Court Below—Time of—Evidence.

    1. Where a motion to dismiss the appeal has been overruled it can not afterward be renewed.
    2. Upon a motion to dismiss the appeal on the ground that the transcript of the record was not filed in time in this court, the date of adjournment of the Circuit Court can not be shown by affidavit or certificate of the clerk of that court. The day of such adjournment can only be shown by an authenticated copy of the order of adjournment.
    [Opinion filed January 16, 1887.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Evans, for appellant.
    Messrs. Doyle, Morris & Pierson, for appellee.
   Per Curiam.

At the present term and on the 16th day of December, 1886, a motion was entered herein by appellees to dismiss the appeal for the alleged reason that more than twenty days intervened between the final adjournment of the March term, 1886, of the Circuit Court, at which term the judgment was rendered, and the convening of the May term, 1886, of this court, and that an authenticated copy of the record was not filed at said May term, or the time for so doing extended by the order of this court. See section 73 of Practice Act, as amended in 1879.

That motion we overruled, and for the reason the transcript of the record contained no adjourning order; and for aught that appeared therein the March term of the Circuit Court may not have been adjourned before Saturday, the 15th day of May.

The motion to dismiss the appeal has now been renewed, and with the motion the affidavit of one Pierson and the certificate of the clerk of the Circuit Court have been filed for the purpose of showing that said March term adjourned on the 2d day of April, 1886. Even if the affidavit and certificate were competent evidence to establish the day of adjournment, yet this motion now interposed should be ordered stricken from the files, for appellees have already had their day in court in the matter of the dismissal of the appeal for want of compliance with the provisions of the Practice Act; and if they did not file with their first motion evidence to show the day of adjournment, it was their own fault.

If the motion before us could be entertained, it would necessarily have to be overruled. The day of the adjournment of the term of the court could only be made known by an authenticated copy of the order of adjournment; and no such order is contained either in the original transcript of the record, or in the additional transcript filed with this motion. This additional transcript contains only a copy of the judgment of the court below and the order allowing the appeal. True, the clerk in his certificate to this transcript, states and certifies that the March term of the court adjourned on the 2d day of April, 1886, but such certificate can not be received as evidence of such fact. Leach v. People, 118 Ill. 157. The same rule will apply to the affidavit of Pierson.

The motion to dismiss the appeal is ordered to be stricken from the files.


author:
Welch, J.
      Per Curiam.

text:
    Roseville Union Bank v. Frank P. Gilbert and John A. Gordon.

      Negotiable Instruments—Action on Note—Extension—Payment—Surety Released.

    In an action on a promissory note brought by a bank against the maker and surety, it is held: That the evidence sustains the plea of the surety, alleging an extension of the note by the cashier of the plaintiff without his consent; that the erasure of an indorsement and the failure of the plaintiff to produce its books on notice, required more satisfactory explanation than was given; that a payment of interest to its cashier, although in board, was, under the evidence, a payment to the plaintiff; and that the instructions, although not strictly accurate, cotild not have misled the jury.
    [Opinion filed May 27, 1887.]
    Appeal from the Circuit Court of Warren County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. James W. Davidson and William C. Norcross, for appellant.
    To constitute a valid contract for an extension of time of payment on a promissory note so as to discharge a surety, three things at least are essential: T'irst, there must he a valid contract entered into between the payee of the note and the principal maker to extend time'; Second, the time of extension must be fixed and certain; and Third, there must be a new and valid consideration paid by the principal maker and accepted by the payee, and all of this must be without the consent of the surety. Jennings v. Fielder, 8 Ill. App. 252; Waters v. Simpson, 2 Gilm. 370; Grabfelder v. Welles, 10 Ill. App. 330; Galbraith v. Fullerton, 53 Ill. 126; Dodson v. Henderson, 113 Ill. 360; Booth v. Wiley, 102 Ill. 84; Gardner v. Watson, 14 Ill. 347; Woolford v. Dow, 34 Ill. 424.
    The contract to extend must bo so certain and binding between the payee and principal maker as to postpone and hinder the remedies of the surety as well as the rights of payee. Galbraith v. Fullerton, 53 Ill. 126; Taylor v. Beck, 13 Ill. 376; Flynn v. Mudd, 27 Ill. 323; Moore v. Topliff, 107 Ill. 241; Waters v. Simpson, 2 Gilm. 370.
    When an error of law has been committed it is the duty of the Appellate Court to reverse the case and remand it for trial, unless it clearly appears that such error could not have in any way injured appellant’s rights on the former trial. I. C. R. R. v. Maffett, 67 Ill. 431; Volk v. Roche, 70 Ill. 297.
    Messrs. Kirkpatrick & Alexander, for appellee.
   Welch, J.

This was a suit brought by the Boseville Union Bank against Frank P. Gilbert and John A. Gordon on a promissory note, in which it was admitted on the trial that Gilbert was the principal maker of the note and Gordon was surety.

Gilbert made no defense but suffered a default. Gordon interposed a special plea alleging an extension of time of payment, in which it is alleged: cl And that when the said note became due, to wit, on the 15th day of May, A. D. 1876, the plaintiff, at the request of the said Frank P. Gilbert and in consideration of the sum of §2.08J-, being the interest in advance for thirty days, then and there agreed with the said Frank P. Gilbert to give, and did then and there give to him, further day of payment of the amount of said note, to wit, the 14th day of June, 1876, then next ensuing, without the knowledge or consent of him, the said John A. Gordon, by reason whereof the said John A. Gordon became discharged from all liability upon said note.” Beplication, trial, and verdict for Gordon on the plea. Judgment overruling motion for a new trial and judgment on verdict against Gilbert for §450. This appeal is taken from the judgment overruling motion for a new trial. We are of the opinion the evidence sustains the plea. Gilbert states: “ When the note was due I went to Pratt, who was cashier of plaintiff’s bank, and asked him for an extension of thirty days on the note, paying interest on same. Told him I did not care to bother Gordon. My best recollection is that I paid the interest for an extension. At one time there was a board hill applied on the note; can’t say certainly when, but one of the payments on the note was a board bill; other payments were indorsed in money.” On cross-examination he says: “ Have no recollection of making the payment on the note; can’t bring any certain dates of payment.” Gordon states that “ he never consented to an extension of time on the note; some two or three months after the note fell due, and about the time Gilbert made an assignment, Seth F. Pratt called on me at my office and told me that he had agreed with Gilbert to extend the time of the note, and asked me if I considered myself hound for the note; I told him no; that he ought to have'collected it long ago, and not let it lie so long. Pratt said: ‘Well, I suppose! have given time on it, and that will release you.’ I got a copy of the note from Pratt; indorsements on back, same then as now; the writing on copy and indorsements are all Seth Pratt’s.”

Copy of note and indorsements :

“ $250. Roseville, Ill., Feb’y 12, 1876.

“ Ifinety days after daté, we, or either of us, promise to pay to the order of the cashier of the Roseville Union Bank two hundred and fifty dollars, value received, payable at their hanking office, with interest at ten per cent per annum after maturity. Indorsements: ‘ Interest paid on the within for thirty days from May 15, 1876.’ ‘Received interest to July 15, 1876.’ ‘ 8-14. Received on the within ($10) ten dollars.’ ”

It further appears that notice in writing had been given plaintiff’s bank to produce the books of the bank showing items of income of the bank for the months of May, June, July and August, 1876. Seth F. Pratt, the cashier, admitted in the presence and hearing of the jury, that he had received such notice ; that he was' unable to comply with the notice; that there was no book in the bank now that would show the items received during those months; that such a boob had been kept, but could not be found; that it was lost or destroyed and that he could not produce it. Seth F. Pratt denies that he ever agreed to extend the time of the payment of the note or that he ever received interest in advance on the note ; denies that he ever told Gordon that he had given time on the note, and thatec that will release you; ” he admits that he placed on the note the indorsement, “ Interest paid on within for thirty days from May 15, 1876,” and that it was erased by him. He says it was erased and included in one of the other indorsements. ce I think the way it was, the first indorsement was in settlement for board and the last indorsement included both, as I was taking meals with Gilbert.”

On re-cross examination he says that the last indorsement does not include the first. It was the second one received interest to July 15th, §1.40.” If this statement is true, then the erasure of the first indorsement would have been made at the time of the entry of the second indorsement. The copy of the indorsements on the copy of the note furnished Gordon contains all the indorsements except the last, with no erasure of the first one. We hold that the evidence of Gilbert, Gordon and the indorsement, as originally made upon the note by the cashier, fully sustains the plea, and that the jury were fully justified in disregarding the evidence for the plaintiff. The erasure of the indorsement and the non-production of its books required a more satisfactory explanation than the record in this case discloses. The instructions for appellee, although not strictly accurate in stating the law, could not have misled the jury. In the view we take of the case it was the only verdict the jury could have rendered, to have given substantial justice between the parties. In such case, as held in Creote v. Willey, 83, Ill. 444, the verdict will not be set aside.

Substantial justice has been done. The judgment is affirmed. Judgment affirmed.

On petition for a rehearing.

[Opinion filed December 16, 1887.]

Per Curiam.

Two questions were presented to the jury under the plea. 1st. Was there an agreement between the principal in the note and the cashier of the appellant to extend the time of payment of the note from the time it became due, May 15, 1876, to June 15, 1876, without the consent of the security, the appellee? 2d. Was the interest paid by the principal in advance as a consideration for so doing ?

It is not claimed.that there is any instruction given by the court for the appellee injurious to appellant on the first proposition, and the jury having found from the evidence that there was such an agreement, we must regard it as rightfully sustained by the evidence.

As to the second question presented to the jury the appellant claims that there was no payment to it in a legal point of view; that the cashier received of the principal in the note the amount of the advanced interest in a board bill due from such cashier on his own account to the principal in the note, and that it did not receive the money. Instruction Nos. 3 and 4, given by the court at the request of appellee, are complained of as misleading to the jury on this issue. The third instruction told the jury in substance, if the cashier owed the principal in the note for board, due or to become due, and by agreement between them the cashier undertook to pay the bank the interest agreed on in consideration of so much board and at or about the same time charged the principal with the amount of interest against so much board and entered the payment on the back of the note for the amount of the interest agreed, then this in law was a good payment of the interest. The fourth was about the same in substance.

Upon the question whether the cash was paid by the principal maker of the note on the particular interest for extension the evidence is somewhat conflicting, and if this were the turning point in the case the error in the instructions might be sufficient to cause reversal.

The main point upon which the case hinges is, did the cashier pay the appellant the money as he had agreed, or did he make the indorsement on the note of the interest received without accounting to the bank for it ?

If the cashier actually paid such interest into the treasury of the bank, then the bank would be bound by the contract of extension the same as though the principal on the note had paid it in cash over the counter. Can there be any doubt that such was the case?

The first indorsement made on the note was as follows: “ Interest paid on the within for thirty days from May 15, 1876.” This was the indorsement upon which the extension was based, and if made before the 15tli of June it showed for itself that there was interest paid in advance for the extension. The second indorsement is as follows: “7-15. Beceived Int. to July 15. §4.40.” The date of this by the figure would indicate 7th month, 15th day, or July 15th. The note had two other indorsements made in August, 1876, not necessary to refer to. Now the cashier, a witness for appellant, swears that the first indorsement was afterward erased and the amount of interest carried into the second indorsement, being 82.20. He also swears that the amount of the first payment “ was in settlement for board.” The amount of money put into the first indorsement is still on the note and offered in evidence by the appellant, which is evidence produced by the appellant itself that the money was duly received and properly credited and is not in any way questioned as a good payment. If it was a good payment when credited in the second credit, it must have been when credited in the first. Nothing has happened to change the matter.

The erasement of the first credit was a suspicious circumstance, from which the jury might rightfully infer that the appellant was trying to obliterate damaging evidence. The cashier nowhere swears that he did not pay the money, shown by the credit first made, into the bank. The appellant also withheld its bank books from going in evidence, which would have shown how the record stood. Then on the point that the appellant received the money for the first interest from the cashier being clearly shown, it would be wholly immaterial whether the cashier got the cash from the principal maker of the note, or got its worth in his own board, by which he was procured to pay the money to the bank. In this state of the evidence the instructions could make no difference.

Petition for rehem'im.g denied.


author: Lacey, J.

text:
    City of Elgin v. L. B. Picard.

      Municipal Corporations—Street Vendors—License—Ordinance Strictly Construed—Soliciting Orders, not toithin.

    1. Soliciting and taking orders for shirts without a license is not a violation of a city ordinance which prohibits selling, offering for sale, bartering or exchanging any goods, wares, merchandise or other articles of value without a license.
    2. A city ordinance which is penal in character must be strictly construed.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac Q-. Wilson, Judge, presiding.
    Hr. F. W. Joslyn, for appellant.
    Messrs. Botsford & Wayne, for appellee.
   Lacey, J.

This suit was originally brought before a Justice of the Peace, by the appellant, to recover against the appellee for violating the city ordinance of the appellant against the sale of goods within the city by traveling salesmen without license. The cause in the Circuit Court was tried on an agreed state of facts by the court without a jury, and resulted in a finding by the court in favor of the appellee, and judgment against appellant for costs.

It appears from the agreed state of facts that the ordinance in question reads- as follows: Every person who shall sell, offer for sale, barter or exchange any goods, wares, merchandise or other article of value, traveling from place to place in, upon and along the streets of said city, shall be deemed a peddler. Every such person shall, before engaging in any way in said business within the City of Elgin, obtain a license as a peddler, under a penalty of §25 for each offense, and every day or part of a day any such person shall engage in said business without a license shall be deemed a separate offense.”

It was further agreed that “ the defendant, as the agent and employe of the Castle Shirt Company, whose principal place of business was at Chicago, Illinois, on or about the 12th day of December, 1885, was in the City of Elgin, Illinois, going from place to place, soliciting and taking orders and taking measurements for gentlemen’s shirts, and exhibiting a manufactured sample of the goods and styles of make-up. Thereupon, the facts coming to the knowledge of the city marshal, appellee was arrested and taken before the police magistrate, and fined $25 for violation of said city ordinance.

“ The orders and measures so taken by defendant were to be sent to Chicago and there filled by said company, which manufactured the goods, returned them to one Wadell, a jewelry merchant at Elgin, where parties giving their orders called, received their goods and paid their money to said Wadell, who acted as agent for said company, and receipted for such goods as such agent.”

The City of Elgin was duly incorporated as a city under the general laws of the State of Illinois. The court below held that the said acts of the appellee did not constitute a violation of the city ordinance, and the refusal of the court to so hold is here assigned for error, and that is the main question to be decided here.

We are of the opinion that the Circuit Court held correctly as to the law. The stipulation is that appellee was only taking and soliciting orders. This is not equivalent to selling, offering for sale, bartering or exchanging any goods, wares, merchandise or other article for value. It does not appear that appellee had the power to close a bargain for the sale of the shirts. He could only take orders, which his principals might or might not fill, at their pleasure.

The taking of the orders does not come within any of the provisions of the ordinance. The ordinance in question is penal in its nature and must be strictly construed. Spencer v. Whiting, 28 N. W. R., 13 Iowa. It is not necessary to notice the question raised as to the legality of the arrest. Holding that the acts of appellee constituted no violation of the ordinance in question, it follows that the judgment of the court below must be affirmed.

Judgment affirmed.


text:
    Melinda Anderson v. William E. Stone.

      Limited Partnership—Formation of—Cash Payment by Special Partner, Coupled with Agreement for its Application—Validity of—Sufficiency of Affidavit.

      1. Upon the formation of a limited partnership to carry on a business already established, the limited partner may pay in money, coupled with a previous or simultaneous agreement that it shall be applied in payment of indebtedness- for goods already in stock. Such an agreement is neither against public policy nor contrary to the provisions of the statute of this State.
    2. In the case presented, this court holds that the affidavit by the general partner, attached to the certificate of partnership, wherein it is stated that the sum paid in by the special partner was actually paid in cash, was true in letter and spirit, although such payment was coupled with an agreement for its application. Such agreement does not render the special partner generally liable for the partnership debts.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. H. Shaw, Judge, presiding.
    Prior to December 20, 1883, G. W. H. Gilbert was a merchant, dealing in Peoria, Illinois, in hats, caps, “ buck goods,” furs and fur goods, having a stock of goods the cash value of which was $10,450.04, incumbered by indebtedness to the amount of $4,950.04 for the purchase price of the goods, leaving the value of the stock after paying the indebtedness $5,500; and desiring to take a partner into the business he entered into a limited partnership with the appellant, as was supposed at the time in compliance with Chap. 84, entitled 61 Limited Partnership,” Starr & C. Ill. Stat., p. 1564.
    The certificate of limited partnership and affidavit annexed was, in substance, that they certified they had entered into a limited partnership under the name of G. W. II. Gilbert & Company; that the business of such partnership is dealing in hats, caps, “buck goods,” furs and fur goods in the said County of Peoria; that said Gilbert is the general partner and appellant the special partner; that the appellant as such partner contributes the sum of $2,750 to the common stock of the said partnership; that said partnership shall commence from and after the date of the instrument, December 20,1883, and terminate' on the 1st day of December, 1888, or upon mutual consent and notice. This certificate was duly signed by said Gilbert and appellant and duly acknowledged before Enoch P. Sloan by each of the parties on the same day, and said Gilbert duly made oath to said certificate before said Sloan on the same day, and stated that appellant, the special partner in the firm, “ lias actually and in good faith paid into the common fund of the said partnership the sum of twenty-seven hundred and fifty dollars ($2,750) in cash.” The legal notices and certificate of the printers were duly given and filed as the statute required. The new firm went into business under the articles of partnership at once, and continued in business till July, 1885, when, becoming embarrassed, the assets of the firm went into the hands of an assignee appointed by the County Court. The estate of the firm having been fully settled and only paying a portion of the indebtedness, this suit was brought by appellee on two promissory notes signed by the firm of G. W. H. Gilbert & Co., payable to appellee, the one dated February 2, 1885, for $1,000, payable in ninety days, and the other dated February 18, 1885, for $500, payable in sixty days. The cause was tried by the court without a jury and judgment rendered by it against the defendants, G. W. H. Gilbert and appellant, for the sum of $729.20, being the balance due on the notes. The pleas were general issue, and an agreement that all defenses might he given in under the general issue. The defense was made that under the articles of agreement and the provisions of the statute the appellant was not generally liable to pay the said claims. That she had never taken anything out of the firm and was only liable for the amount she had put into it. But the court disregarded the defense and rendered a general judgment against her for the above sum. From this judgment this appeal is taken.
    The appellee put in evidence the agreement of partnership as follows:
    “ Dated December 20, 1883.
    “ The partnership, to commence on this date and continue until December 1, 1888. First party, Gilbert, puts into the partnership his stock of goods, book accounts, bills receivable, store fixtures, apparatus, etc., as set forth in ‘Schedule A’ hereto attached and made a part hereof, valued at $5,500, after deducting bills payable assumed by said firm. Second party pays in $2,750 in cash.
    “ It is agreed, that said firm shall assume the business debts of said party of the first part, which are mentioned in the schedule hereto attached and marked ‘ Schedule B,’ which is hereby made a part of this agreement, and said money paid into said partnership shall be used in paying said indebtedness, so far as it will do so.
    “ The first party shall receive two-thirds and second party one-third of profits, and losses be borne in the same way, except liability of second party limited to $2,750. That there be yearly settlements, commencing* February 1, 1885. That first party may draw $1,200 per annum, but not to exceed $100 in any one month. Second party may draw $600 per annum, but not exceed $50 in any one month; and profits in excess of $1,800 per annum shall remain in the firm and be divided on final settlement.
    “First party shall have the general supervision of the business, purchase of all goods, signing of all checks, and special management of fur department.
    “Second party may, at her own expense, place in said store a person, whom she shall select, who shall have special charge of the hat, cap, glove and furnishings department, and general supervision of the books and accounts of said firm, and of the entire business in the absence of said party of the first part.”
    Messrs. George B. Foster and D. F. Raum, for appellant.
    Messrs. Stevens, Lee & Horton, for appellee.
    The statute requires that at the time of filing the original certificate of partnership, an affidavit of the general partner shall also be filed, stating that the amount specified in the certificate to have been contributed by the special partner has been actually and in good faith contributed and applied to the same. Starr & C. Stat., Sec. 7, p. 1565.
    And if any false statement is made in the certificate of partnership, or the affidavit of the general partner, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners. Ib. 8, p. 1566.
    The courts allow no disregard of the provisions of these statutes that may prejudice the rights of creditors. Durant v. Abendroth, 69 N. Y. 148; Van Ingen v. Whitman, 62 N. Y. 513; Argall v. Smith, 3 Den. 435; Haggarty v. Foster, 103 Mass. 17; Pierce v. Bryant, 5 Allen, 91: Coffin’s Appeal, 106 Pa. St. 280.
    Where the affidavit of the general partner shows a contribution of money by the special partner, the contribution of any other commodity does not Satisfy the statute. Havillard v, Chase, 33 Barb. 284.
    Knowledge on the part of appellee that appellant claimed to be a special partner, does not affect him, if the requirements of the statute were not complied with. Andrews v. Schott, 10 Pa. St. 47, 55.
   Lacey, J.

The main point of objection raised to the validity of the partnership of the appellant and G. W. H. Gilbert is, that it appears that the §2,750, paid in by appellant, was not paid in cash, but was actually paid in liquidation of Gilbert’s debts, due by him on account of the goods then in his stock which was by him then put into the new firm, and that being the case, the affidavit of G. W. H. Gilbert, attached to the certificate of partnership filed in the County Clerk’s office, was false, and thereby each member became liable for all the engagements thereof as general partners,” as provided by the statute.

The first inquiry will be, was the money, $2,750, paid in by appellant in ■ cash, or was it goods she put into the firm, or was it inadequate for any reason ?

It is claimed under the authority of Met. Nat. Bank v. Serrett, 97 N. Y. 320, that a- payment coupled with an antecedent agreement obliging the partnership to a specified use of the money, is not á payment in cash. Other cases are cited by appellant. In the case of Andrews v. Schott, 10 Pa. St. 47, one Harris put $10,000 into the firm as a special partner and subsequently another partner was taken into the firm and a new certificate of special partnership issued, showing that Harris had contributed $15,000 to the common stock of the firm. The first amount, $10,000, contributed by Iiarris> was in cash, and remained there untouched by Harris, as a part of the capital, at the time the partnership was renewed or changed. Harris claimed that sum ($10,000) should be considered good payment to the new firm, but the court held all the assets of the first firm are pledged to the debts of that firm, and the entire assets may not be sufficient to pay its debts; that, inasmuch as the first payment was liable to pay the debts of that firm, nothing was paid to the second firm.

In the case of Pierce v. Bryant, 5 Allen, 91, it was held, payment in promissory notes was payment in cash. The court held that this would not be a substantial compliance with the provision of the statute. In Havillard v. Chase, 39 Barb. 284, it was held that a payment in goods is not equivalent to payment in cash. The court say that to allow it would be to sanction and encourage fraud.” The same was held in Van Ingen v. Whitman, 62 N. Y. 531. In the case of the Met, Nat. Bank v. Serrett, supra, where the remark was made that C;a payment coupled with an antecedent agreement obliging the partnership to a specified use of the money is not a payment in cash,” it was made with reference to the facts in that case and was dictum, the point not being necessarily involvetb in the question decided. The facts were that the party who became the special partner was the owner of the stocks of goods, and wanting to close up on account of age and let the business go into other hands, entered into partnership with other parties, becoming a special partner by paying §40,000 into the new firm and then immediately selling to the new firm his stock of goods for §40,000, which was paid over to him and the new firm had the goods and he had the §40.000. Though the transaction was very suspicions, the court upheld it on the facts as a genuine transaction, holding there was not sufficient proof to show that the sale of the goods was prearranged prior to the money being paid into the new firm by the special partner.

It will be borne in mind in considering those decisions that the statutes of Hew York, Pennsylvania and Massachusetts allow the proposed special partner to put nothing into the firm for his interest except cash. Hence any circumvention by which a party desiring to become a special partner accomplishes it by paying in his interest, in the proposed firm, in anything save cash, is a fraud on the statute and contrary to the general policy of the law. Such a transaction could not be allowed to stand. And the court, even in the latter case, says: “ There is nothing in the letter or policy of the Limited Partnership Act to prevent the change from a general partnership into a limited one. The practical convenience of such a proceeding in many cases, is manifest.” What, in substance, was done in the case at bar ? G. W. H. Gilbert owned a stock of goods of the value of §10,450, with which he wants to continue business, or with §8,250 of it. If he had as much as §2,750 of cash put into his firm he could pay enough of the old firm’s debts which the goods were pledged to pay, to enable him to pay up the remaining indebtedness and go on with the business. The §2,750 would, by taking in a special partner, go to pay up old debts, and the special partner could not withdraw this capital. The remaining goods, after deducting the §8,250, would be §2,200, just equal to the remaining debts. The new firm could pay those debts out of the goods, and therefore took them and assumed the debts—a far more praiseworthy and honest transaction than to have bought the goods of Gilbert, leaving the old creditors with nothing but Gilbert’s individual responsibility for their security. Why did the Court of Appeals of blew York intimate that an undertaking made in advance to use the money put in by the proposed special partner to pay for goods owned by such proposed partner was equivalent to an agreement to put in the goods without such contract? It is obvious—it was doing indirectly what could not be done directly. It was a fraud on the law, actual and intended.

We can not think that an agreement in advance to use the cash so put in to buy goods in the general market or of any particular firm for the use of the new firm in its business, or even to pay off debts and incumbrances on the stock of goods already in the firm, would vitiate the transaction on the ground that actual cash was not put into the proposed firm by the proposed special partner. Suppose a chattel mortgage due to a third party had been executed by Gilbert on the goods in qiiestion for §2,750 and the agreement had been that the money proposed to be put into the special partnership should be used to pay off such mortgage, could such transaction be construed into one and the same as though appellee had actually put in goods directly? It seems to us that it could not. The title to the goods was never in appellant until she became possessed of her interest as a partner in the firm assets, the entire amount of which was §8,250. She did not put this interest into the firm. She acquired it by the money she put in, which was afterward used to pay off incumbrances on the goods. If she did not put in goods she paid in money, although coupled with a previous or simultaneous agreement that it should be applied in a specified direction. Unless such stipulation rendered the transaction void, as being against public policy and contrary to the provisions of the statute, Gilbert’s affidavit was literally and substantially true.

We will next consider what effect such cotemporaneous agreement could have on the transaction. Is there anything, in the statute or policy of the law to prohibit the general and special partners, in their articles of co-partnership, from providing for the application of the cash to be paid in by the special partner in such a manner as to forward and be consistent with the best interest and lawful purposes of the proposed firm, as well as the rights of future creditors ? By the statute of New York and the other States mentioned, nothing but cash was allowed to be put into the proposed firm by the special partner; goods were excluded; yet the court in Met. Nat. Bank v. Serrett, supra, said: “There is nothing in the letter and spirit of the Limited Partnership Act to prevent the change of a general partnership into a limited one.” If that be so as to that State, much more should it be so in this State where the statute expressly authorizes the putting in of goods in lieu of cash by the special partner. Gilbert in this case did not propose to become a special partner, but to remain generally liable for the new as well as the old debts, and there was nothing in the policy of the law to prohibit it. It would be a more favorable arrangement for the future creditors of the new firm as well as the creditors of the old. Gilbert found himself in possession of a large stock of goods incumbered by a considerable debt which he equitably should and did recognize and, an opportunity offering, entered into the contract of co-partnership in question.

The limited partnership then formed received the full value in goods for all assumed liability.

The future creditors commenced dealing with the limited partnership on most favorable terms, as it had only about $2,200 debts, and to offset this indebtedness it had the same amount of goods, and a capital over of $8,250. We can see no objection to such a plan of procedure being adopted in its incipiency by the members of the new firm to be carried out when the firm is organized. The articles of agreement provided for assuming the old debts by the limited partnership. For doing this it received goods in compensation. This part of the agreement is not complained of. The old debts of Gilbert by the agreement became the debts of the new firm and they must be paid. It is not claimed that the new firm could not have lawfully applied the money put in by the special partner, if there had been no pre-existing agreement to that effect, to the payment of the old debts so assumed by the firm. Even with the agreement, as made, the partners might have changed the application of the money paid in by appellee to other purposes after the partnership was formed. It were better for future creditors to have the old debts paid at once and the new -firm free from debt. No harm could come to the general public from the course pursued. Debts are always dangerous to a greater or less degree, to any business, and the future creditors would be benefited in having them paid.

It does not follow in every case where the money of the proposed special partner is paid in with an agreement for its application by the terms of the articles of partnership that the payment will be deemed illegal. It will only be so in cases where some policy of the statute or law is contravened, or where the statute is attempted to be evaded, by fraud and circumlocution. But a previous agreement to appropriate the money to be paid in, not violating any of the above principles, will not be regarded in such a light as to vitiate the payment of the money into the special partnership by the special partner as a payment of cash under the provisions of (he statute, nor will such agreement to appropriate such money for the legitimate purposes of the firm, have the effect to render the affidavit of the general partner, swearing to cash payment, false, within the meaning of the statute, with the consequence of making the special partner generally liable for all the debts. It will be seen by the terms of the articles of agreement of the special partnership, that the application of the money to be paid in was not a condition precedent to its actual payment into the treasury, nor did it render the articles of partnership void in case the money was not applied according to such agreement.

The money was actually paid in for the purposes of the business of the new firm, was so used, and, as we have shown, the agreement as to its application was not in any way harmful or against the spirit or letter of the statute.

In the general formation of partnerships it is of common occurrence in the articles of partnership to provide for the purchase of the assets of the firm, create debts and provide for their payment after such partnership is formed, and limit and control them, and determine out of what fund they shall be paid. The articles of partnership in the case at bar provide for the acquiring the assets and the creation of the debt in consequence, and determine in what manner a portion of such obligation should be paid, to wit, out of the fund contributed by the special partner. We are unable to determine what principle of law or portion of the statute on “ Limited Partnership53 is violated by such an arrangement. And no act is done that would be detrimental to the interest of the public or future creditors. The ordinary business man would understand, as the statute does not forbid, that associations could be formed in this way.

We therefore find that the affidavit attached to the certificate of partnership, in which it is stated that appellant had actually paid in cash the amount of $2,750 into the fund of the partnership, was true in letter and spirit.

If the statute is to be upheld it must have a fair and reasonable construction by the courts, otherwise it would be substantially nullified by a course of narrow, illiberal and technical rulings. The Limited Partnership Act is a beneficial law; it encourages trade, and enables the active business man of small means to obtain capital with which to engage in business, from those who are willing to risk a limited sum, but unwilling to incur general liability.

No fraud was intended by either appellant or Gilbert, either to evade the law or to defraud future creditors of the proposed firm.

The appellee contracted the obligations sued on with full knowledge of the fact that appellant was only a limited partner, and did not expect at the time to hold appellant personally liable for his debt. It would be doing her great injustice to hold her liable as a general partner. The point is made by appellee that the proof fails to show that the $2,750 was actually paid in by appellant prior to the time of filing the certificate of partnership, and the making the affidavit by Gilbert. We have examined the evidence, and deem it sufficient on that point.

The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


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    Robert Johnson v. First National Bank of Morrison.

      Negotiable Paper—Note—Collateral Agreement—Dependent Covenants— Notice to Assignee—Failure of Consideration—Pleas—Demurrer.

    1. In an action upon a promissory note, a plea to the effect that the note was given for seed-oats, in connection with an agreement that it was not to be paid until the crop matured and the payee had sold a certain quantity of the oats raised, at a stipulated price; that the plaintiff, as assignee, had notice of such agreement, and that such sale has not been made, constitutes a good defense.
    2. In the case presented, it is held: That the promise, by the payee, to sell the oats raised, and of the maker to pay the note, are dependent covenants; that the payment of the note depends upon the sale accorcling'to agreement; and that certain pleas were defective.
    [Opinion filed December 9, 1887.]
    In error to the Circuit Court of Whiteside County; the Hon J. V. Eustace, Judge, presiding.
    Messrs. Manahan & Ward, and J. & J. Dinsmoor, for plaintiff in error.
    Mr. J. D. Andrews, for defendant in error.
    A set-off or counter-claim is not an equity that attaches to a note affecting purchasers with notice. Benj. Chalmers’ Dig. Art. 134, explanation 3; 2 Daniel’s Neg. Inst. 401; Favorite v. Lord, 35 Ill. 142.
    Breach of an executory agreement which ’constituted the consideration of a note, does not constitute a failure of consideration. Gage v. Lewis, 68 Ill. 604, 617; Willetts v. Burgess, 34 Ill. 494; Davis v. McCready, 17 N. Y. 230; Patten v. Gleason, 106 Mass. 439; Daniel’s Neg. Inst. Sec. 790; Condrey v. West, 11 Ill. 146, 151.
    An executory agreement which constitutes only a part of the consideration on one side for the promise of the other party, and a breach of which can be compensated for in damages, is an independent covenant, and its breach is not a part failure of consideration. 2 Parsons on Contracts, 528-9 n. r; Nelson v. Oren, 41 Ill. 18; White v. Gillman, 43 Ill. 502; Gage v. Lewis, 68 Ill. 615; Tompkins v. Elliott, 5 Wend. 496.
    Contemporaneous agreements must be between the same parties and no others, or else they are independent and can have no effect upon each other. 2 Parsons’ Notes and Bills pp. 536, 537; Jackson v. McKeney, 3 Wend. 233; Isham v. Morgan, 23 Am. R. 361.
    To rob one of character of Iona fide holder, he must have notice of something that defeats the title of his assignor at the time of the assignment. 1 Daniel’s Neg. Inst. 789; Benj. Chalmers’ Dig., Art. 85, 88; 2 Parsons’ Bills & N. 500, 501.
    Fraud or illegality does not avoid a negotiable security except when a statute declares it voider says no action can be had upon the same. Shipley v. Carroll, 45 Ill. 285; Clarke v. Johnson, 54 Ill. 296; Town of Eagle v. Kohn, 84 Ill. 292-6.
   Lacey, J.

This was a suit based on a promissory note in form assigned to appellee, given by appellants to one C. P. Fox, in the sum of $500, due on or before the first of January, 1886, dated March 11, 1885, with interest. There were no pleas except the special pleas, the plea of the general issue having been withdrawn.

The appellee demurred to each and all of the special pleas and the demurrer was sustained by the court. The appellant abiding his pleas, the court gave judgments on the note against appellant.

From this judgment appeal is taken and the action of the court questioned as to its correctness. We are of the opinion that the second special plea was good. It was a plea to the declaration except $25, showing a partial failure of consideration to the amount of $475.

By the plea it is averred that the consideration of the note was the purchase, by appellant, of and from a pretended association calling itself the Ohio, Indiana and Michigan Bohemian Oat Association, for the introduction and sale of Bohemian oats, of fifty bushels of such oats, through O.- P. Fox, payee of said note, who at the time of purchase was the agent of said pretended association, and sold said oats to the defendant as such agent; that at the time it was understood and agreed then and there, by and between the said pretended association and the appellant, that the said oats .were purchased by defendant for seed; and as part of the consideration for the giving of the said note by appellant, the said association, through its agent, agreed with appellant in writing at the time of making the said note, and as a part of the same transaction, to sell for appellant out of the crop to be raised by him in 1885, from such seed, 100 bushels of said oats at $10 per bushel, before December 1, 1885, and appellant should not be called upon to pay any part of said.note until and unless such sale for defendant of 100 bushels of oats, at $10 per bushel, should have been first made by said association, and although appellant, in 1885, raised from the said oats over 100 bushels of like oats, and has at all times since the harvest of 1885 had said 100 bushels of said crop ready for sale by said association, and at divers times since the said harvest and prior to December 1, 1885, has requested said association to sell said 100 bushels of said oats for appellant, yet the association have wholly failed to sell for defendant any part of the said 100 bushels of oats; and appellant avers that said fifty bushels of said oats were at no time worth to exceed the sum of $25. And the appellant avers that the said appellee received the said note with full notice and knowledge of said undertaking of said association to sell said 100 "bushels of the said oats for appellant, and that said note was not to be paid by appellant until and unless such sale was first made by said association for appellant, closing with a verification.

It will be noticed that this note, which is only a note in form, and the written agreement, constituted one contract as between the appellant and Fox, and as between the former and any assignee with notice of the agreement. It is not in reality a note when the writings are taken together and read as one contract.

It amounted to an agreement that the appellant should take the fifty bushels of oats at §500 and sow the same, and when the new crop was secured 100 bushels of them should be sold by the pretended association for §1,000. The sale was in substance guaranteed. ¡Nothing was to be paid until all this was accomplished. It was a very roseate agreement on the part of the appellant.

Without any risk, except the possible failure of the crop, the appellant had an almost certain prospect to get enough out of the transaction to pay him for the original seed, §500 in cash besides, and his entire crop of oats, save the 100 bushels sold. He little suspected the intended fraud on the part of the oily-tongued agent bearing the, significant name of Fox.

He could not see that Fox intended to transfer his note to an innocent holder and then refuse to fulfill his part of the agreement, which it may be reasonable to suppose would be hard to enforce either against the “ Ohio, Indiana <md Michigan Bohemian Oat Association,” or against the agent Fox.

The very favorableness of the contract should have been sufficient to put appellant on his guard, but it seems, like many others, he failed to see through the fraudulent plans of Fox.

In regard to the plea, if the substance of it is regarded, it "would appear that, as appellee had notice of the agreement and that the note was not to be paid unless the 100 bushels of oats were first sold, it stood in the shoes of Fox, and the plea would operate against it the same as it would have done against Fox if he had brought the suit. If appellee knew of the agreement to sell the 100 bushels of oats before the note could be due, it must have known that it simply held an assigned contract, the payment of the note depending on a certain other condition which, if not fulfilled by Fox or the Oats Company, it must fulfill itself in order to enable it to collect the note. It was a condition precedent, made so by the agreement that if the 100 bushels of oats were not sold for $1,000? then the note as a part of the agreement was to be null.

In other words, the entire consideration failed. This is not like the cases cited by the appellee where the consideration of a note simply rests on the covenants and agreement of a third party to do or perform some act, where the agreement does not make the consideration of the note invalid in case it is not performed.

The covenant of Fox or the Bohemian Oat Company, which for all the purposes of this case are one and the same, with appellant, promising to sell the 100 bushels of the oats, and the payment of the note, were dependent covenants. That is, the payment of the note depended on the sale according to agreement. If the sale never took place the consideration of the note failed.

In 2 Parsons, 529: n. r, cited by appellee’s counsel, it is laid down as a rule of law, that “ when a covenant goes only to a part of the consideration on both sides, and a breach of the covenant may be compensated in damages, it is an independent covenant.”

Now, by virtue of this agreement, the failure to sell the 100 bushels of oats, as the agreement required, could not be compensated in damages; the agreement to pay the note itself was to fail. The plea, however, admits that the note was good as to $25, the value of the oats furnished for appellant by Fox. This was voluntary and the appellant would be bound by it though it were unnecessary to make the admission. It is not necessary that the appellee should have known that there was a breach of contract to sell the oats; he knew that the payment of his note depended upon the fulfillment of the contract, and that was sufficient and was all he need know. Fox was simply the agent of the Oats Company, and, as such, tlie note was taken in his name and neither he, nor his assignee with notice, can have a better right than the principal.

The third special plea fails to aver notice to the appellee of the existence of the outside agreement. All the other pleas are also bad as pleas of fraud and circumvention. The fraud and circumvention charged in them simply goes to the consideration and not to the execution of the notes.

The averments in the pleas simply show that the appellant knowingly executed the note, but that he did so because he believed in the promises and inducements held out to him by-Fox, of great gain to accrue to him by entering into the bargain and the raising of the oats, and may be in one plea he did not fully understand the legal effect of the note and agreement signed separately as they were. An innocent purchaser of a promissory note is not to he affected in his rights by any such consideration as this. In order to be good such plea should show that by some trick or device the signature of the note was procured when in fact the maker supposed he was signing something else, not a note. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    The Northwestern Benevolent and Mutual Aid Association of Illinois v. Barbara Wanner.

      Life Insurance—Mutual Benefit Association—Certificate, not Affected by Subsequent By-Law—Suicide—Action of Covenant—Sufficiency of Declaration.

    1. The contract of insurance between a mutual benefit association and one of its members will be as fully protected as if made with a stranger. The association can not, without the assent of such member, impose any new condition affecting the contract to his injury. It can not, by subsequent bylaw, forfeit any of his rights under the contract.

      2. in the case presented, it is held: That the certificate in question was not affected by a subsequent by-law exempting the defendant from liability in cases of suicide; that an action in covenant will lie on the policy; and that the declaration is sufficient.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    The appellant was duly organized under an act of the Legislature of the State of Illinois, entitled “An Act for the Organization and Management of Corporations, etc., for Indemnity to Members thereof.” Approved June 18, 1883. The organization of the appellant took place April 29, 1884. This action brought by the appellee was in covenant, and was based on a second grade certificate, set out in the declaration, in substance, as follows: “This certificate, issued by appellant, witnesseth, that Joseph Wanner is entitled to all the rights and privileges of and in the Horth western Benevolent and Mutual Aid' Association of Illinois, and to participate in the beneficiary or relief fund of the association to the amount of $2,500, which sum, or such part thereof as may be collected as specified in the constitution and by-laws of the association, shall, within sixty days after proofs of death, be paid to his wife, Barbara Wanner.” The certificate is issued upon the condition that the said Joseph Wanner shall comply with the constitution and by-laws of the association, and that the statements in the application for this certificate are true. On the back of the certificate was indorsed the constitution and bylaws of the association. The declaration averred, in legal phraseology, in substance, as follows: That Joseph Wanner, named in the certificate, was the husband of appellee, named therein; that said Joseph Wanner died at Peoria, about the 23d day of March, 1886, of which death the appellant then and there had notice. And appellee averred that, in accordance with by-law Ho. 3, on the reverse side of certificate, deed or policy, the membership in said association was divided into four grades, as follows: membership, between the ages of sixteen and thirty, grade one; between the ages of thirty and forty, grade two; between forty and fifty, grade three; between fifty and sixty, grade four; and that members were entitled to certificates of membership in the following order; grade one, certificates of §3,000; grade two, certificates of §2,500; grade three, certificates of §2,000; and.grade four, certificates of §1,500. And the amount of any of the above certificates shall be paid in full, according to the terms of said certificate, and provided the relief fund shall be sufficient to make such payment. If the said relief fund is not sufficient to make payment in full,' an amount shall be paid on the certificate equal to the amount collected on the assessment made on such certificate, less the cost of collection and disbursement, as specified in section 7 in the by-laws of appellant association.
    And the appellee averred that the assessment provided for by the by-laws of said association for said grade to class “ A ” to which, by the terms of the said certificate, the said Joseph Wanner belonged, to be collected by appellant, to pay said loss on said certificate to the appellee, would amount to more than the said full sum of §2,500, in addition to all the costs and charges for collection, disbursements, or otherwise, under the rules of the said association. The declaration avers, that though it was the duty of appellant to collect said sum and pay it to appellee, or pay over any money in the treasury, etc., yet, although the said Joseph Wanner in his lifetime, and appellee, his wife, and others named in the certificate, have kept and performed all things in the said certificate contained to be performed, the appellant, though often requested, has not paid the appellee the said §2,500, or any part thereof, but refuses so to do, etc., closing with demanding §5,000 damages.
    The appellant filed its plea to the declaration, in which it set up that the certificate was issued to Joseph Wanner, on the condition that he should comply with the constitution and bylaws of the association; and the appellant further averred that at the time of issuing the certificate it had full power to ordain and establish by-laws for its government, and to alter and amend the same at its pleasure, and it further averred in said plea that on January 2,1885, it duly adopted and passed a bylaw in which it was provided as follows: “ Sec. 17. Death executed by the hand, act or procurement of the member, whether voluntary or involuntary, sane or insane at the time, is a risk not assumed by the association,” of the adoption of which said by-law the said Joseph Wanner had notice and acquiesced therein from thence to the time of his death. The plea then recites the by-law in force at the time the certificate was given in regard to the collection of the assessments, and it has no other means except as collected by assessments; and avers that six member’s of appellant committed suicide, and Wanner was benefited by not having to pay their certificates. And appellant then averred that the said Joseph Wanner did on the 25th of March, 1886, etc., commit suicide, and that his death occurred by his own hand, act and procurement, by means whereof the certificate sued on was null and void, and ■appellant not liable to pay the same or any part thereof. And another plea that, by immoral practices, Joseph Wanner did impair his health, to wit': commit suicide, etc.
    The appellee demurred to the said two pleas, and the court sustained the demurrer thereto to each of said pleas, and the appellant abiding its pleas, the court gave judgment against appellant for §2,450 and costs, from which judgment this appeal is taken, and the sustaining of the demurrer to said pleas and rendering of the said judgment is assigned for error, as well as not carrying the demurrer back to the declaration and sustaining it to the declaration.
    Mr. Lawrence Harmon, for appellant.
    Mr. M. N. Gish, for appellee.
   Lacey, J.

We are of the opinion that the pleas are not good and that the court below did not err in sustaining a demurrer to them. It appears at the time Joseph Wanner took the certificate of insurance, there was no such by-laws as was afterward passed and numbered 17, and it is, therefore, no bar to the recovery of appellee if the insured should die by his own hand, act or procurement, sane or insane. But it is contended by counsel for appellant that Joseph Wanner was a member of the society as well as a contractor for insurance or benefit, and that by his certificate he took it on the condition that he should comply with the constitution and bylaws of the association, and the appellant having the power to make by-laws, might make and change them so as to make the contract of insurance contain important conditions and limitations touching appellant’s liability it did not contain before. We can not agree with this view of the law; undoubtedly the appellant might change its b)r-laws and even pass No. 17 but it could not do so in a manner to give the subsequent by-law a retroactive effect as to contracts and obligations entered in before that time, unless it could be clearly seen that such power was reserved. Nothing of the kind appears in the certificate in question. Joseph Wanner, according to the certificate, must comply with the by-laws, but what by-laws? Evidently the by-laws then in existence, but none to be passed affecting the vital principles of his contract.

It might well be that he would be bound by any by law subsequently passed that only referred to mere regulations not changing his contract in substance. It is the general policy of all our constitutions and laws, that no law shall be passed invalidating a contract existing at the time of its passage.

All implications are also indulged in against any subsequently passed law without express provision being even intended to refer to existing contracts. By-law No. 17 provides that, “death occurring by the hand, act or procurement of the member, whether voluntary or involuntary, sane or insane at the time, is notassumedby this association;” but this by-law does not, except by mere implication, refer to the holders of certificates already issued. We ought not to construe this language so as to refer back and affect certificates then existing, but rather so as to affect those issued thereafter. The words “not assumed by this association ” should be construed to read “ will not be hereafter.” Thus construed the by-law would not cover the case of the certificate here involved. The fact that James Wanner had notice of its passage could not enlarge its meaning.

We can not distinguish the appellant from any other mutual insurance company. In all mutual insurance the shareholder participates in the benefits and profits, and is a recognized member of the company. Joseph Wanner had no more favorable position than this in the appellant company. The contract of insurance between a member of a mutual insurance company and the company has always been held to be as binding as though made with a stranger, with no more right to change it on the part of the insurer without the consent of the insured. In such contract the assured is acting for himself and in no part as the representative of the company. In Insurance Co. v. Connor, 17 Pa. St. (5 Harris) 136, it is said: A corporator in a mutual insurance company, like a stranger, may enter in a contract of insurance with it and his rights under the contract will be as fully protected as -those of a stranger. The remedies existing at the time of the contract for enforcing it against him, are all that can be resorted to. The company has no right without his assent to impose any new conditions,.affecting the contract to his injury, or by a by-law passed after the making of the contract forfeit his rights under it.” The rights of a party insured stands entirely free from such control.” See also Middlesex Turnpike Co. v. Swan, 10 Mass. 384; Protection L. Ins. Co. v. Foote, 79 Ill. 361.

As to the other averment we need only remark that the fact that Joseph Wanner stayed in the company and was not called on for any assessments for the representatives of those who died by their own hand, would not invalidate his contract or change it. Those who died might have been holders of certificates issued subsequently to the passage of by-law No. 17; nor could it make any difference in any event.

As to the other plea, we need only remark that the impairment of Joseph Wanner’s health by act of suicide is not one of the immoral practices within the meaning of the certificate covenanted against by the assured.

Another point is made that the demurrer should have been carried back and sustained to the declaration. We do not think this point is well taken. It was the duty of the appellant to proceed- to collect these assessments upon receipt of the notice of the death of the holder of the certificate and pay the amount collected over within sixty days to appellee.

This the declaration avers it utterly refused to do, or to even try to collect any of the money, or to ascertain, by giving notice, how much could be collected. It appears that appellant denies all liability. Its covenants were broken in every particular.

But, it is said, suit in covenant could not be maintained for the reason that it can not be known whether 82,500 could he collected out of its members besides the costs attending the collection and paying over the money to appellee. But the declaration shows that the assessment provided for by the by-laws and rules of the said association would more than make up the above amounts. We think that the presumption is, that enough would have been paid to satisfy in full the appellee’s claim as against appellant, who utterly refused to make any effort. Again, every day’s delay might endanger and lessen the amount that could be collected, if prompt action were had. We think the declaration is sufficient and that an action in covenant will lie. It might remain to the defendant to plead and show that the amount that could be collected under the certificate and by-laws would not amount to the sum of 82,450. This they utterly refused to do, but stood by the pleas in question. There are some decisions to the contrary, but we can not hold otherwise than that covenant will lie on this certificate under the facts as averred. For an interesting opinion see one delivered by the late United States District Judge, S. H. Great, in Lueder’s Exrs. v. Hartford Life and Annuity Co., 12 Fed. Rep. 71.

The case of Covenant Mut. B. Ass’n of Ellinois v. Sears, 114 Ill. 108, is not in conflict. It was there simply held that a court of equity had jurisdiction, not that a court of law would not have. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.