author: Moran, J.

text:
    Patrick J. Doyle et al. v. Julia Munster et al.

      Mechanic's Lien — Failure to Complete Contract — Sub-contractor's Lien —Petition—Notice—Sec. 45, Statute.

    Where an original contractor has failed to complete his contract and a sub-contractor claims a lien under Sec. 45 of the statute, the petitioner is not required to set out the original contract, nor allege that there is anything due the original contractor.
    [Opinion filed December 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. Gwtnn Garnett, Judge, presiding.

      Plaintiffs in error filed their petition for a mechanic’s lien substantially as follows: Petitioners, Patrick J. Doyle and E. J. Goodwillie, are partners, doing business under the firm name of P. J. Doyle & Co., and dealers in lumber and other building material in the city of Chicago.
    That Julia Munster and Morris Munster are owners of, or have some interest in, and are in possession of, lot 8, in Harriet Farleu’s subdivision of lots 13,14 and 15 of Brown’s subdivision of the FT. 5- of S. W. J of Sec. 34, T. 39 FT., E. 14, F. of 3d P. M., in Chicago, in said county, upon which is building number 3754 Wabash avenue.
    That some time in August, 1888, said Julia and Morris Munster made a contract with one Walter Dick, whereby said Dick agreed to supply labor and materials for, and do the carpenter work, the painting and glazing of a building on said lot of ground, being the building aforesaid, to be finished within, as petitioners believe, a time limited and provided for in said contract, which time, petitioners believe, does not extend beyond three years from the making of the contract, nor beyond three years from the time of the commencement of work upon said building, and whereby said Morris and Julia Munster, in consideration thereof, agree to pay to the said Walter Dick within a certain time, as petitioners believe, not more than one year after the time stipulated for the completion of said work upon said building.
    But petitioners are unable to set out the terms and conditions of said contract more in detail, and are unable to state whether said contract was in writing or otherwise, for the reason that said Julia and Morris Munster and also said Walter Dick, have refused the demand of your petitioners to have said writing exhibited to them and to be informed of the terms and conditions of said contract.
    That after the making of the aforesaid contract, and in pursuance of the purposes thereof, on or about September 1, 1886, the said Walter Dick made a contract with petitioners to furnish certain articles of building materials to be used in the erection of said building, which said articles, together with the respective prices agreed upon for the same, are fully set forth and attached hereto marked “Exhibit A.” That the time for the delivery of said material was not definitely fixed, but it was understood that the same should be delivered at such times during the construction of said building as the said Walter Dick might need and call therefor ; that the time of payment therefor was not fixed, but it was understood that said material should be naid for on delivery.
    That pursuant to said last mentioned contract, petitioners commenced delivering said material, and up to October 5, 1886, had delivered to said Walter Dick the several amounts at the respective prices set opposite them, shown and fully set forth and attached hereto marked “ Exhibit B.”
    That all of said material so sold and delivered to said Walter Dick was actually used in and about the construction of the aforesaid building, located on the aforesaid lot of ground.
    That the prices annexed respectively to the several items in said “ Exhibit B,"’ were the prices agreed to be paid, and were reasonable market prices for the same; that petitioners have received nothing to apply on account of the same, and that there is now due to the petitioners the sum of $196.46, together with interest thereon from time of delivery, which said sum the said Walter Dick and said Julia and Morris Munster, though the same has been demanded of them by petitioners, have refused or neglected to pay.
    That on October 13, 1886, petitioners served upon the said Julia and Morris Munster a written notice as in such case provided, whereby they were notified that petitioners had been employed by said Walter Dick to furnish material for the said building, and that petitioners should hold said building and said lot of ground liable for the amount due or to become due thereon, a copy of which said notice is hereto attached marked “Exhibit C ; ” and that at the time of the service of said notice, as petitioners believe, a large sum of money, to.wit, the sum of $1,275, provided in said original contract to be paid by the said Munsters to said Dick on account of the erection of said building, remained to be paid.
    That after the said material was furnished and used in said building, but before the building was fully completed, on or about the 9tli day of October, 1886, said Waiter Dick abandoned work on the same, and surrendered it to said Julia and Morris Munston, and that the said unfinished building at the time of its abandonment and surrender was reasonably worth a large sum over and above the aggregate of the amounts already paid thereon, and of any damages that may have been sustained by reason of the non-fulfillment of the said original contract for the erection of said building, to wit, a sum greater than the amount due to petitioners as aforesaid.
    That no other person, as petitioners believe, has any claim against the said building and premises for material furnished or labor performed.
    In addition to the usual prayer for relief, petitioners pray that said Julia and Morris Munster may be required in their answer to fully set forth, first, their interest in said described lot; second, the terms and conditions of said original contract, and, if same was in writing, to attach a copy thereof thereto and how much, if anything, had been paid to the said Walter Dick under the terms of said contract, at the time the aforesaid notice was served; third, the value of the work already done on said building, and the probable cost of completing the same; and fourth, the amount of damages, if any, sustained by them on account of the non-fulfillment of the said original contract. That the said Walter Dick may be required to answer in detail: First, the terms and provisions of said original contract; and second, the several amounts, if any, paid thereon prior to the 13th day of October, 1886.
    A general demurrer was interposed to said petition by the defendants in error, Julia and Morris Munster, which was sustained by the court and plaintiffs in error electing to stand by their bill, a judgment was entered dismissing the petition at their cost.
    To review this judgment the case is brought to this court.
    Messrs. Yogrg & Makeel, for appellants.
    It is enough for the "court to know that there is a proper case presented under the law to call for its action. Further than that, the court needs no details, and will require none unless when justice demands them for the information of the opposite party. In this case nothing would be subserved by presenting or undertaking to present to the opposite party information which it is already possessed of. There is certainly no reason, but the contrary, in holding that we must furnish to the opposing party information which we are not possessed of and which they are possessed of and refuse to disclose.
    By demurring to our petition or bill they admit that the time for performance and payment was set within the limit prescribed for it by law; they admit that they know, and that we do not know, just how far within that limit it was set; they admit that we have requested information of that particular from them and that they have refused to give it; all this they admit by their demurrer because all this is set out in our petition or bill. Then, if these particulars are essential to the case, are we not entitled under our,petition or bill to have it from them? It is one of the things for which we ask the interposition and aid of the court; namely, that the court should exercise its authority to compel them to set out and disclose these very particulars. The court has the power. It is given in mechanic’s lien cases, “ the same power and jurisdiction over the parties and subject,” and the rules of practice and proceedings in such cases is made “ the same as in other cases in chancery.” Rev. Statutes, chapter entitled “ Liens,” Sec. 9; Sutherland v. Ryerson, 24 Ill. 521; Lomax v. Dore, 45 Ill. 381.
    The general chancery code applies. Clarke v. Boyle, 51 Ill. 105.
    “ Suits to enforce mechanic’s liens are substantially chancery proceedings, and are governed by the rules of chancery practice.” McGraw v. Bayard, 96 Ill. 153.
    Messrs. ,S. G. Abbott and William H. King, for defendants in error.
   Moran, J.

We think the petition sufficient to entitle petitioners to relief, and that the court erred in sustaining the demurrer.

It was not necessary that appellants should set out the terms of the original contract between the Munsters and Dick, or show by allegations that it was such a contract in its terms as would authorize a lien when sought by the original contractor against the owner. A sub-contractor is given a lien if, in pursuance of the purposes of the contract between the owner and the original contractor, he furnishes labor or material in building any house. Sec. 29, Chap. 82, R. S.

The petition states that a contract was made between the Munsters and Dick, whereby Dick agreed to supply labor and material for, and do the carpenter work and painting and glazing on the building to be erected on Munster’s lot; that after the making of said contract, Dick made a contract with petitioners to furnish certain lumber to be used in the erection of said building, to be delivered at such times during the construction of the building as said Dick should direct, and to be paid for on delivery; and that, pursuant to said contract, petitioners delivered said material to the amount of §196.46, and that all said material so delivered was actually used in the construction of said building located on said lot.

The failure of Dick to pay for the said material is alleged, and the service of the proper notice on the Ministers, and it is stated that at the time said notice was served the sum of $1,275,'provided in the original contract to be paid by said Munster to said Dick on account of the erection of said building, remained to be paid. When we first considered this case we were inclined to hold that the petition should allege that something was due from the owner to the original contractor at the - time of the notice, or that the owner should have become indebted to him thereafter upon the contract. Consideration of the different sections of the lien act, however, leads us to a different conclusion.

The object of the petition is to assert a claim under section 45 of that act, and the allegation is that after the material was furnished by petitioners, and had been used in said building, but before the same was completed, Dick abandoned work on the same and surrendered to the Munsters, and that the said unfinished building was, at the time of its abandonment, reasonably worth a large sum over and above the aggregate of the amounts paid thereon, and of any damages sustained by reason of the non-fulfillment of the original contract for the erection of said building, which sum was greater than the amount petitioners claimed.

It is manifest that a petitioner seeking a lien and being obliged to work it out under the 45tli section, could not allege that there was anything due to the original contractor. It could not be said that anything was due him under the contract, when it appears that he lias failed to perform the contract, and abandoned the Avork.

The case is not to proceed under that section on the theory that there was anything due to him. The OAvner is liable for so much as the work and material should be sIioavu to be reasonably Avorth according to the original contract price, first deducting Avhat shall have been rightfully paid under the contract, and such damage as the OAvner has sustained by the failure to complete the work, Mehrle v. Dunne et al., 75 Ill. 239.

The owner may of course be compelled to produce at the hearing the original contract, and disclose fully his payments and transactions under it. To require the petitioners to state those matters in the petition, would be in effect to deny any relief under the 45th section, for the law furnishes a subcontractor no means of obtaining such information' before filing his petition.

The petition states a cause of action and requires an an-SAver, and for sustaining the demurrer thereto the decree must be reversed, and the case remanded to the Superior Court.

Reversed and remanded.

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


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    The Star and Crescent Milling Co. v. Thomas.

      Personal Injuries — Elevator—Conflict of Evidence — Instructions—Degree of Accuracy Required.

    1. Where the evidence is conflicting and there is no clear preponderance, unless each instruction on behalf of the successful party was accurate and free from all error calculated to mislead the jury, the judgment must be reversed and the cause remanded.
    2. In an action by an employe of the defendant corporation to recover damages for a personal injury resulting from the fall of a freight, elevator, this court holds that an instruction, which purports to direct the jury as to all the elements necessary to a recovery by the plaintiff, improperly assumed material facts in controversy and ignored essential issues of the case.
    [Opinion filed August 1, 1888.]
    Appeal from the Superior Court of Cook County; the lion. John J?. Altgeld, Judge, presiding.
    This was an action by appellee, Thomas, against the milling company, appellant, to recover for a personal injury to the former, sustained October 4,1884, while employed as shipping clerk at appellant’s mill, and being precipitated from the second to the basement floor of said mill while in the act of descending from an upper floor thereof by means of an elevator which ran away with him, by reason, as it is alleged; of the machinery and appliances of such elevator being out of repair.
    The declaration has five counts, charging negligence and breach of duty on the part of defendant, as master, toward plaintiff as servant or employe.
    The plea was the general issue, and upon the trial evidence was given showing that said mill was situated just west of the dock of the south branch of the Chicago River, near railroad tracks and fronting on West Randolph Street, was five stories high, in which the defendant carried on an extensive milling business in the manufacture of flour, etc., einploying therein numerous persons who were assigned to services in particular departments of the business; that plaintiff was employed as shipping clerk, and was located for the purpose of performing the chief part of his services in a shed outside the basement of said building, having some dozen or more men under him; that ho had been in such service there some thirteen months prior to his injury. The evidence shows that the defendant had provided some twelve years previously, for the purposes of their business, a freight elevator whose shaft extended from the basement floor to the upper floor of the building; that, although a freight elevator, yet many of the employes had been in the habit of using it for the mere purpose of riding in it; that there was a safe and convenient stairway between each floor from the basement up.
    The evidence tended to show that the plaintiff xvas unacquainted with the proper manner of operating this elexrator, and that the use of it by him xvas not required in the performance of the services he xvas employed to perform, and to which alone he xvas assigned by his employer.
    Evidence xvas given to the effect that the elevator in question xvas, at the time it xvas put in, a reasonably safe and proper one as a freight elevator; and that about a month prior to the injury to plaintiff it xvas overhauled and put in repair by skillful and competent workmen. But evidence was given tending to show that for some time prior to such injury, although there was no visible or definable defect in the machinery or appliances, yet it would occasionally become unruly and the ear xvould run away if under the control of an inexperienced person, but that it was reasonably safe as a freight elevator while under the control of one acquainted with the proper manner of managing it. The evidence tended to show notice to the foreman in charge of the mill, some time before the accident, of such tendency, aforesaid, in the elevator to run away.
    And there xvas evidence slightly tending to prove that the jdaintiff, among other employes, had been warned not to use the elevator for passenger purposes. But as to all these matters, involving the question of negligence" on the part of defendant, and the exercise of ordinary care on the part of plaintiff in going upon and attempting to use said' elevator, there was a conflict of evidence. The plaintiff’s own testimony tends to show that during the noon hour of October 4, 1884, he, finding that one of the men under him had left, went into the street and engaged another man, whom he wished to put in the place of a man then at work in the fifth story, and bring the latter down to his shed; so, finding the elevator car resting in the basement, rather than go up the stairs, he took the car and went up, the man taking the stairs. When ready to come down he took the car again, but the man went down by the stairs. Between the third and fourth floors the car began to run away with him. lie, being unacquainted with the use of the appliances provided for stopping it, made no attempt to do so, but instead sought to save himself by catching onto the edge of the floor next above the basement and was unsuccessful; the car went on and he fell to the bottom, going out onto the basement floor, and was seriously injured by the fall.
    There was no direct evidence tending to show that the plaintiff was authorized by the defendant to employ the man and take him to the fifth story and put him in the place of the other man there, or that it was a necessary or probable incident to the authority which he had as such shipping clerk.
    At the instance of plaintiff’s counsel, the court gave to the jury the following instruction:
    “If the jury believes from the evidence that the defendant was possessed of an elevator which was used by its employes in the conduct of its business; that the defendant was guilty of negligence in not keeping such elevator and its appliances in an ordinarily safe condition and state of repair, and that, by reason of such negligence of the defendant, said elevator ran away and fell with the plaintiff while he was in the performance of his duties as the defendant’s servant, and as such, using the said elevator and exercising ordinary care for his own safety, as alleged in the declaration; and if the jury further believe from the evidence that, by reason of said elevator’s running away and falling with the plaintiff he became confused, bewildered and frightened, through apprehension of fatal injury or serious bodily harm, and that, in the exercise of ordinary care for his own safety, he sought to save himself by grasping, seizing and holding the edge of one of the floors abutting and adjoining the elevator shaft, and that, while striving so to save himself, he then and there instantly slipped, fell and struck upon and against the said elevator and the basement floor, and thereby received the injuries complained of in the declaration, then, under such circumstances, if found by the jury from the evidence, the plaintiff would be entitled to recover in this action, even though the jury should believe from the evidence that if he had .not so grasped, seized and attempted to save himself by holding the edge of the floor as aforesaid, he might not have received said injuries.”
    The jury found the defendant guilty and assessed the plaintiff’s damages at 85,300, and the court, overruling the defendant’s motion for a new trial, gave judgment upon the verdict, and defendant brings the record to this court by appeal, assigning various errors.
    Mr. Francis Adams, for appellant.
    Messrs. John Gibbons and William Hoynes, for appellee.
   McAllister, J.

A rehearing having been granted in this case, we have re-examined it with much care, and given to it all the consideration which the severe pressure of our duties would permit.

We shall not attempt to state and discuss all the questions presented on behalf of appellant upon which error is predicated, and since a new trial must'be awarded, we shall refrain from discussing the facts in any way calculated to prejudice either party upon another trial.

Under our system, no less now than before the establishment of appellate courts, such as this, the law is for the court, the facts for the jury.

After reading all the elaborate arguments, and due.consideration of all the evidence, we are brought to the conclusion that, as respects¡ two of the necessary elements of the cause of action, at least, the evidence is closely conflicting and it is left doubtful which way it preponderates. In such a case it is the well established rule of the Supreme Court that, unless it shall appear that each instruction to the jury on behalf of the successful party stated the law with accuracy and was free from all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. L. S. & M. S. R. R. Co. v. Elson, 15 Ill. App. 83, and cases cited; C., B. & Q. R. R. Co. v. Flint, 22 Ill. App. 508, and cases cited.

That rule — when applied to a case like this, where, as to indispensable elements of the cause of action, the evidence is conflicting and without any clear preponderance (which are solely matters for the j ury) — is based upon sound reason, and supported by the dictates of evenhanded justice. For, if in such case the instruction improperly assumes any fact in controversy, or erroneously states the law in favor of the plaintiff, it presumptively prejudices the defendant and gives the plaintiff an indirect and undue advantage.

The court, at the instance of plaintiff’s counsel, gave to the jury the instruction which is set out in our statement of the case.. That instruction purports to direct the jury as to all the elements necessary to a verdict in plaintiff’s favor. It begins by the assumption of material facts in controversy. “If the jury believe from the evidence that the defendant was possessed of an elevator which was used by its employes in the conduct of its business¡ that the defendant was guilty of negligence in not keeping such elevator and its appliances in an ordinarily safe condition and Hate of repair, and that by reason of such negligence of the defendant, said elevator ran away and fell with the plaintiff while he -was in the performance of his duties as the defendant’s servant, and as such, using said elevator and exercising ordinary care for his own safety as alleged in the declaration,” etc. There is very little in that which the jury would understand to be hypothetical. It is mostly the language of assertion, of assumption of facts. It explicitly assumes that the elevator was used by defendant’s employes in the conduct of its business, leaving it to be inforred that the plaintiff so used it on the occasion in question, which was a matter in controversy at the trial. It assumes that the defendant did not keep the elevator and its appliances in an ordinarily safe condition and state of repair, another point in controversy on the trial. It directs the jury that plaintiff was entitled to recover if he exercised ordinary care for his own safety after he got upon, and was descending by the elevator, while it was claimed on behalf of defendant at the trial, that, upon the facts and circumstances of the case in evidence, it was gross negligence on the part of the plaintiff, who was ignorant of thq proper manner of operating -the elevator, to venture upon and attempt to run it, which would preclude a recovery. That was the true issue, but the instruction withdrew it wholly from the consideration of the jury. That was wrong. P. C. & St. L. R. R. v. Goss, 13 Ill. App. 619.

It contains no hypothesis of knowledge on the part of the defendant or want of knowledge on the part of the plaintiff as to the elevator being out of repair, both of which were essential to the cause of action. Beach on Contributory. Neg., 351, and cases in notes.

We are also of opinion that third instruction for plaintiff was obnoxious to similar objections. But for giving that above mentioned the judgment must be reversed and the cause remanded

Reversed and remanded.


author: Moran, P. J.

text:
    Thomas L. Humphreville et al. v. John T. Davis.

      Landlord and Tenant — Forcible Entry and Detainer — Extent of Recovery.

    While all the different occupants o£ premises included within a single lease may be joined in an action of forcible entry and detainer, the recovery against an individual defendant must be limited to such portion of the premises as is actually withheld by him.

      [Opinion filed August 1, 1888.]
    Appeal from the Circuit Court of Cook County; the lion. Richard S. Tuthill, Judge, presiding.
    Messrs. Rufus Kikg and M. S. Bowen, for appellants.
    Mr. Franklin P. Simons, for appellee.
   Moran, P. J.

This was an action for forcible entry and detainer, commenced in justice court against the appellants impleaded with Chester Kinney and D. W. Castle. Judgment was entered in the justice court against all the defendants for the entire premises described in the contract. The case was appealed to the Circuit Court by appellants, and on the trial, on appellee’s motion, the suit was dismissed as to the defendants Kinney & Castle.

On the trial it appeared that appellants had leased rooms 23, 24 and 25, of No. 167 and 169 Washington Street, Chicago, by a written lease for a term from May 1, 1884, to April 30, 1885, and that appellants sublet room 25 to Kinney & Castle, until May 1, 1885. On June 5,1885, at the time of the commencement of this suit, appellants were occupying rooms 23 and 24, and Kinney & Castle were occupying room 25. The uncontradicted testimony of appellants showed that Kinney & Castle did not hold possession of room 25 at the time of the commencement of this suit, or at any time after the first of May, 1885, at the request of or by authority of appellants, and that appellants had no possession or control whatever of said room 25 after said first day of May, 1885, but were in possession of rooms 23 and 24..

' The court rendered a judgment against appellants for unlawfully withholding the entire premises. Under the evidence in this case such judgment was erroneous. In an action of forcible entry and detainer, the holding of the possession against the plaintiff is the foundation of the action, and like any other substantial fact must be proved in order to warrant a judgment. It must be shown that the defendant actually detains the possession himself, or that he has delivered it to another to be held for him.

Under our statute, where there has been one lease for the whole of certain premises, and the actual possession thereof at the commencement of the suit shall be in severalty, while all the different occupants may be joined in one suit, yet the recovery against them shall be several according to their actual holding. See. 15, Chap. 57, R. S.

Kinney & Castle went in under appellants, it is true, but there was no proof whatever that they held over after the expiration of appellants’ lease from appellee, as the tenants of appellants or with appellants’ authority. They could be joined with appellants as defendants to the suit for the recovery of the entire premises, and had they been retained as defendants, judgment could have been taken against them for the portion of the premises which they should be shown to hold possession of. But no judgment could be taken against them for recovery of the rooms of which appellants withheld the possession, and neither can a judgment be sustained against appellants for the room which the proof shows said Kinney & Castle withheld. The recovery against the several parties is required to be, ‘‘according as their actual holding shall respectively be f mnd.to be.”

The fact that the entire premises were leased to the appelants does not authorize a recovery against them in forcible entry and detainer for any portion of the premises which they were not shown to withhold. Godard v. Lieberman, 18 Ill. App. 366; Hersey v. Westover, 11 Ill. App. 197; Murphy v. Dwyer, 11 Ill. App. 246; Springer v. Cooper, 11 Ill. App. 267.

The judgment against the appellants for the entire premises was unauthorized, and must therefore be reversed and the case remanded.

Reversed and remanded:


author: Garrett, J.

text:
    A. W. Bulkley v. Annie Devine.

      Sealed Instruments — Parol Authority to Fill Blanhs — Agency—Landlord and Tenant.

    1. Parol authority to fill blanks in a sealed instrument is adequate for that purpose.

      2. The insertion in a lease of the number of the house intended to be demised is proper, although by parol authority.
    [Opinion filed August 1, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Weigley, Bulkley & Gray, for appellant.
    The lease was absolutely void for uncertainty. Dingman v. Kelley, 7 Ind. 717; Kea v. Robeson, 5 Ired. Eq. 373; Ingram et al. v. Little, 14 Ga. 182; Habblewhite v. McMorrine, 6 Mees. & W. 200; Jackson v. Titus, 2 Johns. 430; Patterson et al. v. Hubbard, 30 Ill. 201; Carter v. Barnes, 26 Ill. 455; Hughes v. Streeter, 24 Ill. 648; Shackleford v. Bailey, 35 Ill. 387; Taylor’s Landlord and Tenant, Sec. 160.
    Blanks in a sealed instrument can not bo filled in after its delivery by another person except by the grantor himself, under seal. Shop. Touch. 54; Ingram et al. v. Little, 14 Ga. 182; Simms v. Henry, 19 Iowa, 297; Jackson v. Titus, 2 Johns. 430.
    Pai’ol evidence is not admissible to change, alter, vary, modify, or supply the defects in a written lease under seal. Jackson v. Goodyear, 12 Johns. 488; Otis v. Sill, 8 Barb, at pg. 122; Hayden v. Westcott, 11 Conn. 129; Dingman v. Kelley, 7 Ind. 717; Chapman v. McGrew, 20 Ill. 101; Loach v. Farnum et al., 90 Ill. 368; Barnett v. Barnes, 73 Ill. 216.
    If a person enters under a void lease and pays rent, he is a tenant at will. Denn v. Fearnside, 1 Wils. 176; Doe v. Watts, 7 T. R. 83; Huyser v. Chase, 13 Mich. 98.
    Messrs. Knickerbocker & Holdom, for appellee.
    As a matter of law, there has never been any alteration of the lease in the record. It is admitted that the number of the house rented was 55, and that was the number in the lease.
    That is the house which the parties contracted for, in pursuance of which appellant entered and occupied for the full term of the lease. The number was to be inserted when it was known what the number would be. That was not an alteration within the meaning of the authorities cited by appellant. When the number was filled in it related back to the time of the signing, and made it a complete instrument. The alteration of a written instrument, in order to affect its validity, must be fraudulent, and made with a fraudulent purpose, to change the terms of the contract. Such can not be claimed in the case at bar. Vogle v. Ripper, 34 Ill. 100.
    See Parsons on Contracts, Yol. 2,. page 720, where it is stated that in this country generally no immaterial alteration would void an instrument, and that an alteration which only does what the law would do — that is, only expresses what the law implies — is not a material alteration, and therefore would not avoid an instrument- Whether the alteration is material is not. a question of fact for the jury, but of law for the court, and the burden of proof of the fact of the alteration rests on the party alleging it.
    In Addison on Contracts, Yol. 1, page 553, it is stated that where a house was, by mistake, described as number 38, whereas in fact it was number 35, and the 8 was altered into a 5 whilst the lease was in the plaintiff’s hands, it was held that the contract was not avoided by the alteration. Hutchins v. Scott, 2 Mees. & W. 816.
   Garrett, J.

This action was commenced before a justice of the peace by appellee against appellant, to recover rent for the month of August, 1885, for the house known as Ho. 55, 32d Street, Chicago. On appeal to the Superior Court, there was judgment for appellee for $35. the monthly rental and costs, from which Bulldey prosecutes this appeal. The lease sued on was under seal and in duplicate, and when executed by Bulldey the number of the house (which was then uncompleted) not being known, was not in the lease, nor was there anything therein to identify the premises. But at that, time appellant agreed (as found by the court below) that when the number was ascertained it should be inserted in the lease.

The number “55” was afterward inserted in the lessor’s duplicate by some person unknown, but it never was inserted in the lessee’s, nor was appellant ever informed of the insertion before the suit was commenced.

The evidence showed that Ho. 55 was the house intended to be devised when the lease was executed, and that appellant took possession of it after the date of the lease (December 19, 1884), and remained in possession until April, 1886, paying rent therefor up to August, 1885.

The point to be decided is whether the insertion by parol authority of the number “55” in the lease made it a complete and binding instrument against appellant.

The better opinion now is that parol authority to fill blanks in a sealed instrument is adequate for that purpose, and when filled according to the agreement, the covenantor is bound to perform his covenant in the contract thus completed. City of Chicago v. Gage, 95 Ill. 593; Inhabitants of South Berwick v. Hunter, 53 Me. 89; Swartz v. Ballou, 47 Iowa, 188; Van Etta v. Evenson, 28 Wis. 33; Drury v. Foster, 2 Wallace, 24; Whitaker v. Miller, 88 Ill. 385; Field v. Stagg, 52 Mo. 534.

Hot does it make any difference that the incomplete instrument is delivered to one person as agent of the maker, and the insertion is made by another who was not expressly authorized to do so by the party to be charged. City of Chicago v. Gage, supra; Swartz v. Ballou, supra.

As all the propositions of law requested by appellant were either erroneous or inapplicable to the facts of the case, they were properly refused, and there is no error in the record.

The judgment of the court below will be affirmed.

Judgment affirmed.


author: Garnett, J.

text:
    Emma A. Strong v. William M. Strong et al.

      Deed as Mortgage — Parol Evidence.

    Parol evidence to establish a deed absolute on its face as a mortgage must be clear and convincing,
    [Opinion filed August 8, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Thomas A. Moran, Judge, presiding.
    This is a bill in equity filed August 12, 1882, by plaintiff in error against William W. Strong, Philo Carpenter and Amos J. Snell, alleging that on February 15, 1878, complainant was the owner of the west 80 feet of lot 29 in McNeill’s re-subdivision of lots 16, 17, etc., of McNeill’s subdivision of lots 6, 7 and 8 in Wright’s addition to Chicago; that William W. Strong represented to complainant that he was the owner of the remaining part of said lot 29 and all of lot 28 in said McNeill’s re-subdivision, and that Snell had offered to purchase the whole of lots 28 and 29 for $5,000, but that he, William, could not sell without purchasing of complainant her part of lot 29; that said William also represented to her that if she would convey said west 80 feet of lot 29 to him, he could borrow money on his interest from Carpenter; that she was desirous of selling said west 80 feet, and relying upon the representations and agreement of said William, her brother, to obtain the consideration for said lot, she delivered a deed thereof to her brother, trusting that when he sold the property he would pay to her $2,000 for the 80 feet, $1,000 to be paid in cash as soon as the sale could be made to Snell, and $1,000 to be secured to her by William; that afterward, about February 20, 18781 Strong agreed with Carpenter for a loan of §4,000, and to secure the same conveyed said lots to Carpenter by warranty deed with the expressed consideration of §5,000; that Carpenter knew when he received the deed that complainant had been paid no part of the consideration therefor; that William afterward procured an extension of the loan and promised complainant that she should have the surplus said lots would bring after Carpenter was paid his §4,000 ; that about September 1,1881, said William and Carpenter sold the lots to Snell for §7,500, of which §1,500 was paid in cash and §6,000 secured by notes and trust deed. The prayer is for an accounting and for general relief.
    The answer of Carpenter denies all notice of any of the alleged representations to complainant or of any of the alleged agreements between complainant and William, but says the deed from complainant to William was an absolute and indefeasible deed, and Carpenter had no notice of anything to the contrary; denies loaning §4,000 to William, and says the deed from William to said Carpenter was absolute; that he purchased said lots from William for §4,000, and that said deed was not intended as a mortgage; denies that complainant is entitled to any relief.
    The bill was taken as confessed by William W. Strong and dismissed as to Snell. On final hearing the bill was dismissed as against Carpenter for want of equity. The complainant sues out this writ of error to reverse the decree.
    Messrs. Millard & Smith, for plaintiff in error.
    Whenever a deed is shown to have been given as security for a loan of money it is a mortgage. Clark v. Finlon, 90 Ill. 245; Jones on Mort., Par. 274, 329, 600; Campbell v. Worthington, 6 Vt. 448; Baxter v. Willey, 9 Vt. 276.
    The existence of a debt is the test. Either a pre-existing debt, or one created at the time, makes the agreement a mortgage. Jones on Mort., Par. 265, 266, 268; Delahay v. McConnel, 4 Scam. 156; Tillson v. Moulton, 23 Ill. 610; Edrington v. Harper, 3 J. J. Marshall, 354.
    We maintain that the evidence in this record shows clearly that the transaction of February 15, 1878, whereby Strong deeded to Carpenter the two lots in question, was that of a Joan;, that the deed was intended for and was in fact a mortgage ; that under the rule of law that “ once a mortgage, always a mortgage,” that instrument remained a mortgage, and Carpenter sold the lots in question and received the consideration price as the mortgagee, and not as the owner of the property; that at the time plaintiff in error deeded her lot to W. W. Strong, Carpenter was informed of her interest, knew of it and knew that she was not receiving her pay for her lot; that Strong’s agreement with, plaintiff in error that she should have all of the equitable interest in the two lots over and above the §4,000 advanced by Carpenter to Strong was an equitable assignment, which since that date has been treated as such and frequently confirmed by Strong, and that his interest or equity in the lots was assignable and was of such a nature that courts of equity will recognize and protect such an assignment.
    In equity all contracts and agreements may be assigned and will be protected. Carr v. Waugh, 28 Ill. 418; Morris v. Cheney, 51 Ill. 451; Chapman v. Shattuck, 3 Gilm. 49; Littlefield v. Story, 3 Johns. 426; Ridgeway v. Underwood, 67 Ill. 420; Story on Contracts, Sec. 379 g; Bispham’s Principles of Equity, 164-5; Story’s Equity Juris. 1046-47.
    Messrs. Comstock & Hess and Frank J. Crawford, for defendants in error.
   Garnett, J.

The object of this bill is to impress upon the deed executed by William W. Strong to Philo Carpenter the character of a mortgage. The deed is absolute on its face, and the consideration paid therefor, if not full and entirely adequate, was about a fair equivalent. To convert such an instrument into a mortgage by parol proof, as the plaintiff in error, now seeks to do, the authorities uniformly- require that the evidence must be clear and satisfactory. Price v. Karnes, 59 Ill. 276; Remington v. Campbell, 60 Ill. 516; Magnusson v. Johnson, 73 Ill. 156; Wilson v. McDowell, 78 Ill. 514; Hancock v. Harper, 86 Ill. 445; Knowles v. Knowles, 86 Ill. 1; Bartling v. Brasuhn, 102 Ill. 441.

The proof touching the question whether the transaction was a purchase or loan by Carpenter was conflicting, and in many instances directly contradictory. Even if we felt uncertain about the correctness of the conclusion of the court below, the decree would have to be affirmed. But any hesitation is removed by the evidence of William W. Strong, a witness called in behalf of complainant, who testifies that he never had or claimed, or thought of any interest in the lots after his deed to Carpenter. The witness could not have meant by this disavowal that he had assigned his equity of redemption to complainant, because the bill alleges that, at the time the loan was extended, William promised her that she should have all the lots brought, after Carpenter was paid the 84,000. That was some time after the deed was delivered to Carpenter, and if it was intended as a mortgage the equity of redemption must Have remained in William until he assigned it, as alleged, to complainant. The complainant is equally unfortunate in the proof of notice to Carpenter that she had not been paid or secured the purchase price for the west 80 feet of lot 29. The record fails to show to our satisfaction that Carpenter was notified that she was not secured.

The finding of the court below was manifestly correct. The decree is affirmed.

Decree affirmed.

Moran, P. J"., took no part in the decision of this case.


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    In re Annie Barnes, a Dependent Girl.

      Practice — Amendment of Record.

    The record can not be amended from the judge’s knowledge but only from his minutes, after the expiration of the term.
    [Opinion filed August 8, 1888.]
    Appeal from the County Court of Cook County; the Hon, Bichard Prendergast, Judge, presiding.
    Mr. H. M. Jones, for appellant.

      A uniform line of decisions runs through our Appellate and Supreme Courts, beginning in the 24th Illinois, announcing and emphasizing the doctrine concisely laid down in the "ease of Robinson v. Brown, 82 Ill. 279, “that the court had no power at a subsequent term to change the judgment in any material respect.” We simply refer to a few of the more prominent and pronounced cases: Cook v. Wood, 24 Ill. 297; Oetgen v. Ross, 36 Ill. 335; Messervey v. Beckwith, 41 Ill. 452; McKindley v. Buck, 43 Ill. 488; Lill v. Stookey, 72 Ill. 495; Dunham v. So. Park Comm’rs, 87 Ill. 185; Becker v. Sauter, 89 Ill. 596 ; Goucher v. Patterson, 94 Ill. 525 ; Gillett v. Booth, 6 Ill. App. 424; Kihlkolz v. Wolff, 8 Ill. App. 371.
    Hr. F. E. Halltgait, for appellee.
    The court made the record show the judgment “ then and there ordered and made,” and nothing more. This was the duty of the court and was within its power.
    Freeman on Judgments, section 72, uses the following language :
    “ The doctrine in this country in reference to amendments of records may be said to have crystallized into the following legal propositions, namely : That any error or defect in a record which occurs through the act or omission of the clerk of the court in entering, or failing to enter of record, its judgments or proceedings, and is not an error in the express judgment pronounced by the court in the exercise of its judicial discretion, is a mere clerical error, and amendable, no matter in how important a part of the record it may be ; and when the error or defect is in respect to the entry of some judgment, order, decree or proceeding to which one of the parties to the cause was of right entitled, and as a matter of course, according to law and the established practice of the court, it will sometimes be presumed to have occurred through the misprision of the clerk, and will always he amendable, if from other parts of the record, or from other convincing and satisfactory proofs, it can be clearly ascertained what judgment, order or decree the party was entitled to.”
    In Ives v. Hulce, 17 Ill. App. 30, the court says ;

      “ This we understand to be the crucial test as to whether an amendment should be allowed, and upon principle it is not very material whether the misprision is that of the judge or clerk, if the sentence which the court intended has not been entered up.”
    To the same effect, Wyman v. Buckstaff, 24 Wis. 477. Also, Kilmer v. People, 106 Ill. 529; Gaff v. Spellmeyer et al., 13 Ill. App, 294; Tucker v. Hamilton, 108 Ill. 464 ; O’Conner v. Wilson, 57 Ill. 226; Dunham v. S. Park Com’rs, 87 Ill. 185; Coughran v. Gutcheus, 18 Ill. 390; Cook v. Wood, 24 Ill. 295 ; Church v. English, 81 Ill. 442; Lill v. Stookey, 72 Ill. 495 ; Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419.
   Garnett, J.

On May 26,1887, the County Court of Cook County entered a final order in this cause, appointing Mrs. GB. Marsh guardian of Annie Barnes, and directing the latter to be committed to the Illinois Industrial School for Girls at Chicago, to be kept there until she arrives at the age of eighteen years, unless sooner discharged according to law. On October 6,1887, in the September term of the court, on motion of Ida Barnes, mother of Annie, another order was entered in the cause amending the order of May 26, 1887, so as to give the court the power (among other things) to vacate the same so far as it directed a commitment to that school and the appointment of a guardian, and the order of commitment and appointment of the guardian was, by the last order, set aside, and a commitment to another school and the appointment of another guardian ordered.

The Industrial School excepted to the order of October 6, 1887, and seeks to reverse the same on this appeal.

The amended order recites that the amendment was omitted / from the original order by inadvertence and mistake, and it is stated in the bill of exceptions that the court knew of its own knowledge the facts in relation to the original judgment and on which the record thereof was amended.

The amendment was substantial, and could not be made from the knowledge of the judge. It must be based on the judge’s minutes. Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419: Conghran v. Gutcheus, 18 Ill. 390; Gillett v. Booth, 6 Ill. App. 432.

The order of the County Court entered on the 6th day of October, 1887, is reversed.

Order reversed.


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    Mechanics Loan and Trust Company of Chicago et al. v. American Exchange National Bank of Chicago et al.

      Assignment — Distribution—Right of Secured Creditors to Dividends — • Sale of Collaterals without Prejudice.

    1. Upon the distribution of an estate under an assignment creditors who held collateral security are entitled to share equally with unsecured creditors in any and all dividends paid.
    2. Where a holder of collaterals has converted them into cash on the faith of an order of court that he might do so without prejudice, his rights are not thereby affected, the court having no power to require him to make the change.
    [Opinion filed August 8, 1888.]
    Appeal from the County Court of Cook County; the Hon. Riohabd Pkendebgast, Judge, presiding.
    Messrs. Rich & Stone, for appellants.
    The County Court should have required the appellees to realize upon the collateral held by them, and to apply the proceeds in payment or part payment of their said claims as requested by appellants.
    It was within the power of the court to require the appellees to convert said property into money, and apply the same, as far as it would go, in payment of their claims, before they should be peimitted to prove their claim and receive a dividend from the assets in the hands of the assignee. Wurtz v. Hart, 13 Iowa, 515; In re Knowles, 13 R. I. 90; Besley v. Lawrence, 11 Paige, 581.
    The appellees having, before the time of the order for a dividend made by the County Court, converted into money all of the said securities remaining in their hands, after the allowing of their claims by the County Court, to the amount of $7O,St¡0.Sl, the said County Court should have directed the assignee to pay a dividend only upon the amount of their claims after deducting the net proceeds of the sale of collateral then in their possession.
    We are aware of the decision of our Supreme Court in the case of Bates v. Paddock, 118 Ill. 524, holding that a creditor is entitled to a dividend on his whole claim out of the assigned assets, notwithstanding there was security held for the claim; and we understand the County Court directed the dividend to appellees in this case upon the strength of that decision. But we claim that this case is clearly distinguishable from the case under consideration in that suit. There the security had not been realized upon. There was likely to be long delay in realizing money on the same, and there was uncertainty as to what the mortgaged property would bring at forced sale.
    If the debtor had been sued in that case there could have been no defense of payment, in part even, to reduce the amount of indebtedness remaining, and the court might find good reason for following the Pennsylvania line of decisions rather than that of Kew York, Iowa and Kliode Island. It would be going a good deal farther in the same direction, we think, to hold in this case that appellees were entitled to the same dividend as other creditors on the full amount of their claim as established on the hearing of the exceptions to their claims, notwithstanding they had been subsequently, but before the order for dividend, paid nearly in full the amounts upon which dividends were ordered. We do not find, in any of the cases cited, any one where the money had been actually received by claimants as proceeds of securities held before order of distribution and dividend under the assignment proceedings.
    Messrs. Swift & Campbell, for appellees.
    “ The rule of law is well settled that an assignee to whom property is transferred for the payment of the assignor’s debts, tabes it subject to all liens to which it is then liable.” O’Hara v. Jones, 46 Ill. 288; Yates v. Dodge, S. C. Ill. Nov. 11, 1887; 13 Northeastern Rep. p. 847. The rule of law is equally well settled tliat the assignee has no greater right than the assignor had. Hardin v. Osborn, 94 Ill. 571; Jack v. Weinnett, 115 Ill. 111. The only right, therefore, which the assignee of Sykes had was the right to redeem the seed which appellees held as security, by paying their claims. When appellees proved their claims they offered to surrender the seed to the assignee upon payment of their claims, and notified him that they should ask for a dividend upon the full amount of their claims, without deduction on account of their security.
    As the assignee had no right except to redeem, and as it was not claimed that the seed held as security was greater in value than the claims against which it was held, the court rightly refused the prayer of appellant’s petition. But the court entered an order upon his own motion that the appellees “ have leave to sell the seed held by them as collateral security without prejudice to their rights.”
    In view of the recent decision of the Supreme Court in the matter of Bates, assignee, 118 Ill. 524, the County Court rightly refused to enter an order compelling appellees to sell their security.
    The County Court found, at the time of allowing the claims, that all moneys received uj> to that time had been credited.
    The County Court was right in ordering a dividend paid upon these claims as allowed, without reference to the fact that the claimants held security. The law upon this point is now settled in this State. In re Bates, 118 Ill. 524; Yates v. Dodge, 13 Northeastern Rep. 847.
    The Supreme Court of the United States has also decided this question in the same way. Lewis v. U. S., 92 U. S. 618.
   Moran, P. J.

James W. Sykes made a voluntary assignment for the benefit of his creditors, which was duly filed, and the County Court proceeded to administer the insolvent estate. Claims were proved against the estate to the amount of $265,885.92, and the assets which came to the hands of the assignee amounted to $47,787.68.

Appellant’s claim was allowed for $92,253.19, and the claim of appellee, the American Exchange National Bank, for $106,800, and of appellee, the Canadian Bank of Commerce, for $27,400, were filed. It appeared on taking the proofs of said claims, that appellees each held certain warehouse receipts for timothy seed, which had been issued to Sykes, and had been indorsed by him to the appellee banks respectively) as collateral security to the notes of Sykes held by the said banks.

Certain motions and counter motions were made by the parties and various orders were entered by the court, which, in the view we take of the case, it is unnecessary to allude to further than to say the result was, that each of the appellees realized on a portion of its collaterals and credited the amount so obtained on its claim, and the claim of the American Exchange National Bank, so reduced, was allowed by the court at $69,241.94, and the claim of the Canadian Bank of Commerce at $15,848.51.

At the time of such allowance of such claims, the American Exchange Bank held a balance of collateral undisposed of which was then worth at the market value $56,771.65, and the Canadian Bank held like collateral of the value of $12,236.49.

Appellant moved the court for an order directing appellees to realize on such balance of collateral held by them, but the court refused such order and entered an order finding that it was for the interest of all the creditors of the insolvent estate that said banks have leave to sell the collateral security held by them without prejudice to any of their rights, the proceeds of such sales not to be applied upon the indebtedness of Sykes to them, but to be held by them in all particulars as the collateral itself was then held, and it was so ordered. Thereupon the American bank sold its said collaterals and received in money over all expenses $55,851.76, and the Canadian Bank sold and obtained the sum of $12,242.24. Shortly thereafter the matter of distribution by the assignee came on to be settled by the court, and appellant moved the court to direct the assignee to pay a dividend upon the amount of appellees’ claims only, which should remain after deducting the net proceeds of said collaterals, which net proceeds were then in the hands of said appellees respectively; the court refused to so direct) but ordered the assignee to pay to said appellees upon the amount of their said claims as allowed, the same dividend as should be paid to other creditors of the estate.

This is the order chiefly complained of by appellant and it is contended by it that the security having been turned into cash, this case is on this point taken out of the rule as established in In re Bates, 118 Ill. 524. It is, among other things, clearly laid down in that case that the court has no power to compel the holder of the security to realize upon the same. The County Court then properly refused to direct appellees to sell the seeds held by them and credit the proceeds on their respective claims. It clearly appears from the record that appellees, in selling the balance of the seeds held by them, did so on the faith of the order of court that they might do so without prejudice to their rights, and might hold the proceeds as they held the collateral. The sale was for the interest of all the creditors and to prevent the collaterals from being eaten up by warehouse charges and other expenses.

We think the fact that the collaterals were turned into cash under such circumstances does not make this case an exception to the doctrine announced by our Supreme Court. The decisions in Iowa and Mew York are in support of appellant’s contention, but the rule as announced in those States is not followed by our Supreme Court, but rather the doctrine which obtains in Pennsylvania as held in Morris v. A1wine, 22 Pa. St. 441, cited with apparent approval In re Bates, where the case is stated as one “of distribution under an assignment for the benefit of creditors, and a creditor by bond and by mortgage was held entitled to a pro rata dividend on his whole claim, even though he had collected the greater part of it out of the mortgaged property, the amount collected and the dividend together not being sufficient to satisfy the debt. He was not restricted to a dividend on his claim, as reduced by the proceeds of the mortgage.”

The order appealed from must he affirmed.

Order affirmed.

Gaenett, J.3 took no part in the consideration of this case.


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    Seth F. Hanchett, for use, etc., v. A. W. Buckley et al.

      Replevin — Action on Bond — Parties— Warehouse Receipt as Collateral— Sale — Burden of Proof — Evidence.
    1. The pledge of a warehouse receipt as collateral security for a note is in legal effect a sale to the pledgee, for a valuable consideration, of the property called for by the receipt, and vests in him the legal title thereto.
    2. Where there has been a breach of a replevin bond, any person injured may maintain an action thereon in the name of the sheriff to his own use.
    3. In an action on a replevin bond wherein it is claimed that the action of replevin was not tried on its merits and that a certain bank, one of the parties for whose use the action is brought, became the purchaser of the property in question by accepting a warehouse receipt as collateral, it is held: That the burden was on the plaintiff to show' that the bank had notice of the fraud in the original purchase; that certain of the instructions were erroneous; that it was unnecessary to prove that a retorno habendo had been awarded, it being admitted by the pleadings; and that evidence as to whether t.he note secured was presented to the indorser and whether he was worth the amount thereof, was improperly admitted.
    [Opinion filed August 1, 1888.]
    Ik eeeoe to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This was an action on a replevin bond executed by defendants in error in behalf of Simon Auerbach & Company. The breach of the bond alleged in the declaration was that the suit was dismissed and retorno hdbendo ordered, and that the tobacco, which had been taken, had not been returned.
    The defendants pleaded that the action of replevin was not tried on its merits, and that plaintiffs were not damnified more than one cent, and averred that the property in said replevin writ mentioned was the property of Simon Auerbach & Company. and not of plaintiff. To this plea plaintiff filed two replications: 1st. That the goods in the replevin writ mentioned
    were the property of the parties for whose use this action was brought. 2d. That the property was not the property of Simon Auerbach & Company, but was the property of the Ricker Rational Bank, to hold the said goods and chattels as a pledge, to be kept by said bank until said defendant, Charles Goodman, should pay to said bank $2,000, owing by said Goodman to said Ricker Rational Bank.
    The verdict was for one cent damages, which verdict plaintiff moved the court to set aside, and for a new trial, bnt the court overruled the motion and entered judgment on the verdict, and the case is brought here for review by a writ of error.
    Messrs. Kbaus, Maybe & Stein, for plaintiff in error.
    The pledge of the tobacco by Charles Goodman to the Ricker Rational Bank, as security for, or-in payment of, a preexisting debt, was a sale upon a valuable consideration, and is entitled to the same protection as if the Ricker Rational Bank had purchased the tobacco outright and paid a full and adequate consideration therefor. Butters v. Haughwout, 42 Ill. 18; Manning v. McClure, 36 Ill. 490; Kranert v. Simon, 65 Ill. 344; Van Duzer v. Allen, 90 Ill. 499; Benjamin on Sales, Sec. 433 ; Chicago Dock Co. v. Foster, 48 Ill. 507; Montague v. Hanchett, 20 Ill. App. 222.
    Where the sale was made to a party guilty of a fraud, and possession is delivered by the vendor to the vendee in execution of the contract of sale, then the title passes and the sale is not void but merely voidable; and if the vendee transfer the goods by way of sale or pledge to an innocent third person for a valuable consideration, before the original sale is voided, the rights of said original vendor will be subordinate to those of such third person. Benjamin on Sales, Sec. 433; Brundage v. Camp, 21 Ill. 329; Michigan C. R. R. Co. v. Philips, 60 Ill. 190, 197; Jennings v. Gage, 13 Ill. 610; Chicago Dock Co. v. Foster, 48 Ill. 507.
    The burden of proving that the Bicker Rational Bank had notice of the alleged fraud, by which Charles Goodman purchased the property in question from the original vendors, is upon the original vendors as against the Ricker National Bank. Brown v. Riley, 22 Ill. 46; Butters v. Haughwout, 42 Ill. 18; Jewett v. Cook, 81 Ill. 266; Easter v. Allen, 8 Allen, 9, 10; Montague v. Hanchett, 20 Ill. App. 222.
    A seller can not rescind a sale for fraud as against a remote purchaser or pledgee, unless the original seller proves that such purchaser or pledgee, at or before his purchase, had notice of the fraud or was nota Tjonajide purchaser for value. Benjamin on Sales, Sec. 433; Butters v. Haughwout, 42 Ill. 18; Ohio, etc., Railroad v. Kerr, 49 Ill. 458; Chicago Dock Co. v. Foster, 48 Ill. 507; Dickerson v. Evans, 84 Ill. 451; Henson v. Wescott, 82 Ill. 224; McNab v. Young, 81 Ill. 11; Van Duzer v. Alien, 90 Ill. 499; Kranert v. Simon, 65 Ill. 344; Brundage v. Camp, 21 Ill. 329; Jennings v. Gage, 13 Ill. 610; Montague v. Hanchett, 20 Ill. App. 222; Jones v. Simpson, 116 U. S. 609.
    The delivery of the warehouse receipt by Charles Goodman through Ms brother, Morris Goodman, to the Ricker Rational Bank, was a good symbolic delivery; it forms a good delivery in the performance of the contract of pledge, and is equivalent to an actual delivery of the actual property itself. As Jones on Pledges says, Sec. 280: “ The transfer of the certificate transfers to the vendee or pledgee the legal title and constructive possession of the property, and the warehouseman from the time of the transfer becomes his bailee.” Benjamin on Sales, Sec. 697; McNab Bank v. McRae, 107 Ill. 281; Newcomb v. Cabell, 10 Bush. 460; Burton v. Curyea, 40 Ill. 320; Salter v. Wollams, 2 M. & G. 650; Shaw v. R. R. Co., 101 U. S. 557; Sergeant v. Central Warehouse Co., 15 Ill. App. 553.
    Messrs. Weigley, Bülkley & Gray, for defendants in error.
    There is no breach of the condition of the bond providing for a return of the property u in case return thereof shall be awarded,” until the court awards such return; that is, until there is a judgment in the replevin suit awarding a retorno hdbendo. Clark v. Norton, 6 Minn. 412; Ladd v. Prentice, 14 Conn. 108; Thomas v. Irwin, 90 Ind. 557, and cases cited.
    A warehouse receipt is not negotiable in the sense that commercial paper is. It may be assigned by indorsement and delivery, and thereby convey the interest of the assignor. Canadian Bank of Commerce v. McCrea, 106 Ill. 281; Gray v. Agnew, 95 Ill. 315. In the case of a pledge the legal property does not pass as in the case of a mortgage with a condition of defeasance, but the general ownership remains with the pledgor, and only a special property or lien passes to the pledgee. Union Trust Co. v. Rigdon, 93 Ill. 465.
    An execution becomes a lien upon the personal property of the defendant from the time it is delivered to the sheriff to be executed. Section 9, Ch. 76, Rev. Stat.; Leach v. Pine, 41 Ill. 65; Field v. Macullar, 20 Ill. App. 392.
    An attachment or execution creditor of a fraudulent vendee obtains no rights as against the rights of the defrauded vendor. Sweitzer v. Tracy, 76 Ill. 345; Doane v. Lockwood, 4 N. E. Rep. 500; Farwell v. Hanchett, 11 N. E. Rep. 875.
    A party who has no title can give none. Hutchinson v. Oswald, 17 Ill. App. 28; Montague v. Ficklin, 18 Ill. App. 99; Fossette v. Osborne et al., 32 Ill. 424; Burton v. Curyea, 40 Ill. 329; Klein v. Seibold, 89 Ill. 540.
    A stranger to the replevin bond, who is neither a party to the suit nor the bond, can not maintain an action thereon against the obligors. Pipher et al. v. Johnson, 9 N. E. Rep. 376.
    The object of the replevin bond is to indemnify the sheriff and furnish an additional remedy to the defendants in that suit. Petrie v. Fisher, 43 Ill. 442; Fahnestock v. Gilham, 77 Ill. 637; Richards et al. v. Rape, 3 Ill. App. 24; Humphrey et al. v. Taggert, 38 Ill. 229.
   Moran, P. J.

To establish its right to damages the plaintiff in error, The Ricker Rational Bank, introduced evidence tending to show that prior to Rovember 1, 1884, one Charles Goodman was indebted to said bank on a note for §2,000. indorsed by his brother, Morris Goodman, which note was due; that said Charles Goodman desired an extension of the loan, and through his brother negotiated with the bank to obtain it, and finally succeeded, by pledging a warehouse receipt for two bales of tobacco as collateral security for the payment of the note, and procuring the note to be indorsed by his brother.

The tobacco was purchased by Charles Goodman from Simon Auerbach & Company, and was delivered to him about the 1st of October, 1884, and was by him placed in the warehouse about Rovember 1, 1884, and the receipt, afterward pledged to the Ricker Rational Bank, for the two bales in controversy, was taken from the warehouse company and was delivered to the said bank prior to Rovember 5, 1884. The two bales of tobacco mentioned in the warehouse receipt were taken by the sheriff on the. replevin writ issued in the case in which appellees executed the bond sued on.

To sustain the defense, appellees introduced evidence tending to show that there was fraud in the obtaining of the tobacco from Auerbach & Company, in that when Charles Goodman purchased the same he knew he was insolvent, and bought the property with the intention not to pay for it. There wore some circumstances connected with the pledging of the warehouse receipt to appellant upon which appellees base a contention that the Ricker Rational Bank had notice of the alleged fraudulent purchase of the tobacco by said Goodman, and was not, therefore, a honafide holder of the warehouse receipts.

An inspection of the record leads to grave doubt as to whether there is any evidence to support such contention, but for the purpose of this review, treating this issue, as the trial court did, as one which required the evidence to be submitted to the jury, we are of opinion that such error was committed in the modification of instructions asked for the plaintiff afiid in giving instructions requested by the defendant, as requires tjiat the verdict be set aside and a new trial granted. The pledge of the warehouse receipts as collateral security to the note was in legal effect a sale to the bank of the tobacco called for by the receipts for a valuable consideration, and vested the legal title thereto in the bank (Chicago Dock Co. v. Foster et al., 48 Ill. 507), and appellant had the ownership in the same, unless appellee proved that the bank received the receipts with knowledge that the vendee, Goodman, had obtained the tobacco from the vendor by fraud. The bank being a T)ona fide purchaser for value, the burden was on appellees to show that it took with notice of the fraud in the original purchase. Easten v. Allen, 8 Allen, 10; Jewett v. Cook, 81 Ill. 266; Benjamin on Sales, Sec. 433; O. & M. R. R. Co. v. Kerr, 49 Ill. 458.

At the request of the appellees the court gave to the jury defendants’ instruction No. 6, as follows:

The court instructs the jury that before the Bicker National Bank can occupy any better position in regard to the property in question than the said Charles Goodman, it must appear from the evidence that the said Bicker National Bank obtained said property, either as security or owner, for a valuable consideration passing from the said Bicker National Bank to the said Charles Goodman at the time of obtaining the same; and also that it obtained said property from the said Goodman without any notice of the fraud by which he obtained the same.”

The instruction, while it does not in direct terms misstate the law, yet is necessarily misleading. It is so couched as to give the jury to understand that the burden was on appellants to show that it obtained the property without notice of the fraud. This placing the burden of proof as to notice of the fraud upon the wrong party is more directly done in the court’s modification of plaintiff’s second instruction, which, as given, is as follows, the modification by the court being inclosed in parenthesis:

il If the jury believe from the evidence that the two bales of tobacco in controversy were sold and delivered by Simon Auerbach & Company to Charles Goodman, and that they accepted their promissory note in payment for the same, and that afterward the said Goodman pledged the said two bales of tobacco to the Kicker National Bank at Quincy, Illinois, by the transfer and delivery to said bank of the warehouse receipts for the same, introduced in evidence, to secure the payment of his ionafide debt of two thousand dollars due to said bank (and that said bank received said warehouse receipts as collateral security for the payment of said sum of money in good faith without notice of any fraud in the purchase of the goods in question), and that said debt is wholly unpaid, then said bank, by said transfer and delivery of said warehouse receipts, acquired a special property in said two bales of tobacco, and are and were entitled to hold the same until said debt is fully paid, and the jury may find for the plaintiff and assess the damages at the value of the said two bales.53

It will be seen that, by the modification, the court made it a condition of the plaintiffs3 right to recover, that, in addition to all the other facts" contained in the instruction, it should appear that it took the warehouse receipts without notice of the fraud, whereas the law is that the plaintiff should recover on the other facts supposed in the instruction being found in its favor, unless it appeared from the evidence that it took the receipt with notice of the fraud. Jones v. Simpson, 116 U. S. 609; Montague v. Hanchett, 20 Ill. App. 222.

The same error appears in the modification of other of plaintiff’s instructions, but it is deemed sufficiently pointed out in what has been said, so that its repetition on another trial may be avoided, and the discussion of the other instructions in detail is not necessary.

The coxrrt permitted Morris Goodman, the brother of Charles Goodman, and who was an indorser on the note for which the warehouse receipts were held as security, to be asked on cross-examination, against, the objection of plaintiff, whether he was worth the amount of the note and whether the note was ever presented to him for payment. We think the testimony wholly immaterial and that it was error to admit it.

It is contended by appellees that, as the Bicker National Bank was not a party to the replevin suit, it i.- a stranger to the bond and is not, therefore, entitled to the benefit of a recovery upon it. The suit may be maintained by the sheriff who has the legal right of action for the use of any person he chooses. °

When the conditions of the replevin bond are broken, any person injured may sue in the name of the sheriff to his own use. Atkin v. Moore, 82 Ill. 240; Replevin Act, Secs. 10 and 25, Chap. 119, R. S.

It is further contended that plaintiffs could not have had a verdict, as there was no evidence introduced to show that a retorno habendo had been awarded on the dismissal of the replevin suit. It is alleged in the declaration that there was a judgment of retorno, and that is not denied by the plea, so that it stands admitted by the record. What is admitted by the pleadings need not he proved.

The judgment will be reversed for the errors pointed out, and the case remanded to the Superior Court.

Reversed and remanded.


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    Anton Martin v. Sigmund Hochstadter et al.

      Practice — Appealfrom Justice — Affidavit of Merits — When to be filed— Joinder in Error — Jurisdi lion.

    1. Where an action commenced before a justice with an affidavit of claim is appealed to the Circuit Court, the defendant is not required to file an affidavit of perits until the cause is reached for trial.
    2. Where the appellee has joined in the errors assigned, this court has jurisdiction, although the appeal might have been confined to narrower issues. ,

      [Opinion filed August 1, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. C. C. Boggs, Judge, presiding.
    Mr. Allan C. Story, for appellant.
    Messrs. Hofheimer, Zeisler & Rosenberg, for appellees.
   Garnett, J.

In this action, which was commenced before a justice of the peace by appellees against appellant, there was an affidavit of claim filed with the justice in pursuance of section 34, Chap. 79, of the Revised Statutes, and judgment for $150.80 and costs was rendered in favor of the plaintiffs, from which the defendant appealed to the Circuit Court The appeal bond was filed in the office of the clerk of said court June 29, 1S86, and on July 9, 1886, the justice transmitted to that court the transcript and jiapers in the cause.

The appearance of the plaintiff was entered in the Circuit Court on July 9, 1886, and that of the defendant on June 29, 1886. On August 18, 1886, that being the third day of the August term, the defendant’s default was entered for want of an affidavit of merits and judgment rendered against him. On October 1,1886, that being in the September term of the court, the defendant moved the court to vacate the.default and judgment. The motion was denied and exceptions taken by defendant, who brings the record to this court and assigns as error, not only the overruling of the motion, but the entry of the judgment for want of an affidavit of merits. The appeal would only have brought before this court the order of the Circuit Court denying the motion, had the appellees taken the necessary steps to confine it to that question. But they have, without objection, practically joined in the errors assigned by filing their brief and argument without insisting upon that point, and that gives this court jurisdiction to inquire into the propriety of the judgment itself. Danforth v. Perry, 20 Ill, App. 130.

Section 34, Chap. 79, enacts that if the plaintiff in any suit on a contract for the payment of money shall file with the justice at the time of commencing such suit an affidavit showing the nature of his demand and the amount due Mm, after allowing all just deductions, credits and set-offs, he shall be entitled to judgment in case of default, but the justice may require further evidence, provided, “ that in ease of appeal from the judgment of the justice of the peace, as aforesaid, such affidavit shall have the same force and effect in the appellate court as if such suit had been commenced in such appellate court.”-

To ascertain what force and effect is intended to be given? in case of appeal, to the plaintiff’s affidavit of claim, it is necessary to refer to See. 37, Chap. 110, of the Revised Statutes. The cases there provided for are those requiring written pleadings. The plaintiff’s affidavit in such cases is to he filed with his declaration, and the defendant’s affidavit with his plea. In no ease is the affidavit required to be filed before the time to plead has arrived. The pleadings before a justice of the peace are oral. When the cause is appealed to the Circuit Court there is no change in the pleadings; they are still oral and the cause is to be heard de novo.

The question is, in ease of appeal from the justice where the plaintiff has duly filed his affidavit of claim, when must the defendant file his affidavit of merits.

Hot before the justice, because the statute makes no provision for that officer to receive it either before or after judgment. It would be unjust to require him to file it at the time when the transcript is filed with the clerk of the Circuit1 Court, because the justice has twenty days to send up the transcript. He may send it the day of the appeal or the tenth day after, but the defendant has no means of knowing when it will be filed. The law should be very plain before we could require of a party to such a suit so unreasonable a duty as continuous watching, during so long a period, for the filing of the transcript.

Neither Sec. 34, Chap. 79, nor Sec. 37, Chap. 110, requires in terms that the affidavit of merits shall be filed at any specified term. A reasonable interpretation must be given these two sections which are thus, to some extent, blindly interwoven. As in case of an action commenced in the Circuit Court where written pleadings are required, the defendant may defer filing his affidavit until he is obliged to file his plea, so in case of appeal from a justice the intention was to give the defendant the right to file his affidavit when the time comes for him to plead. His plea is oral and is made when the causé is reached for trial. His affidavit is due then and not before. If he fails to file it, judgment may be rendered on the plaintiff’s affidavit of claim without further proof.

The court erred in rendering the judgment for want of an affidavit of merits, and for that error the judgment will be reversed and remanded.

Reversed and remoulded.


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    Peter Lapp et al. v. Alexander Pinover et al.

      Trover — Right of Possession — Sales—Instructions.
    1. The plaintiff can not recover in an action of trover, unless he had the right to immediate possession of the goods ip question at the time of their conversion.
    2. A re-sale of goods to the vendor, the possession remaining with the vendee, is void as to a subsequent bona fide purchaser without notice.
    3. An instruction which purports to embrace every element essential to a recovery, is defective if any material element is omitted.
    [Opinion filed August 8, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    This was an action of trover by appellees against appellants to recover for an alleged wrongful conversion by the latter of a quantity of jewelry, the goods, etc., of the former. Upon a trial, under the general issue, the appellees had judgment upon a verdict for §891.50 damages, besides costs, from which the defendants took this appeal.
    It appeal's that the plaintiffs below, being wholesale dealers in jewelry in the city of Mew York, June 21, 1881, sold and delivered to one W. T. Oarinder, at Kansas City, 'Missouri, where the latter was carrying on a retail business in jewelry, etc., the jewelry in question; that Oarinder had the same in his possession; but that July 22, 1881, an arrangement was entered into between him and plaintiffs whereby Oarinder surrendered up the bill of sale of June 21,1881, to the plaintiffs, and the goods were entered on their books as held by Oarinder under'a consignment, and a memorandum to that effect was sent by the former to the latter, the possession of the same by Oarinder remaining unchanged. It appears that Oarinder had sold two articles of said jewelry for which he did not account to plaintiffs, and that September 1, 1881, he pledged the whole of the remainder of said goods, with others, and delivered them into the possession of one Schwartz, a pawnbroker, as security for a loan of $1,100, made by the latter to him; that September 5, 1834, Oarinder, in consideration of a past indebtedness of some $2,200, due from him to the defendants, and advances then made by them for him, sold his entire stock of goods, including the jewelry in question, to defendants, who took possession thereof after redeeming the same from said pawn and the levy of a writ of attachment.
    There was evidence tending to show that defendants, before they completed said purchase, had notice that .Oarinder held the goods in question upon consignment. But, as to that, the evidence was conflicting. The court, at the instance of the plaintiffs, gave to the jury the following instruction: ,
    “ For the plaintiffs, the court instructs the jury, that if they believe, from the evidence, that the goods in question in this suit were, at the time they were taken by tile agents of the defendant, in the possession of Oarinder on memorandum or on consignment, and that the defendant, while such goods were so held by Oarinder on memorandum or on consignment, obtained possession of the same out of the usual order of sale or course of business and converted the same to their own use, then you will find for the plaintiffs.”
    To the giving of which instruction the defendants then and there duly excepted.
    Mr. S. S. Gregory, for appellants.
    Messrs. Abbott & Baker, for appellees.
   McAllister, J.

The sale and delivery of the goods in question, June 24, 18S4, by the plaintiffs to Oarinder, vested in the latter the title to the goods. And the re-sale of them back to plaintiffs, July 22, 1884, by Oarinder, being without any change of possession of the goods, would, if entirely formal in other respects, be void as to iona fide creditors, purchasers or pledgees, without notice. Ketchum v. Watson, 24 Ill. 591; Lewis v. Swift, 54 Ill. 436; Thompson v. Wilhite, 81 Ill. 356; Lefever v. Mires, 81 Ill. 456; Gradle v. Kern, 109 Ill. 557; Bastress v. Chickering, 18 Ill. App. 198.

The instruction given by the court to the jury set out in the statement of the case, purports to instruct the jury as to all the elements of the case essential to a recovery. That instruction contains no hypothesis as to whether the plaintiffs reduced the goods to possession, upon the re-sale of them; or whether the defendants had notice of the arrangement that Oarinder was holding them as upon a consignment from plaintiff's. The defendants claimed the goods as purchasers from Oarinder in good faith and without notice. That was one of the issues upon the trial as to which the evidence was conflicting, and it should have been submitted to the jury in that instruction.

It is essential to the right of recovery in trover, that the plaintiff had the right to an immediate possession of the goods at the time of the conversion. Eisendrath v. Knauer, 64 Ill. 396; Calwell v. Corwin, 9 Yerg. 199; Burton v. Tunnehill, 6 Blackf. 470; Redman v. Gould, 7 Blackf. 361; Lewis v. Mobley, 4 Dev. & B. 323; 1 Chit. Pl. 151; 2 Greenl. Ev. Sec. 636.

The instruction under consideration wholly fails to embody any proposition of that kind. It was radically defective; and there being a conflict of evidence upon the question of notice to the defendants, the judgment must be reversed and the cause sent back for trial.

Reversed and remanded.


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    Hide & Leather National Bank et al. v. Jacob Rehm, Assignee.

      Assignment — Confession of Judgment — Validity of — Jurisdiction—Appeals from County Court.

    1. .Upon appeal from a decretal order of the County Court in the matter of an assignment, this court holds that the evidence sustains the finding of the court below that the insolvent had formed the determination and was preparing to make the assignment when he gave the notes and warrants of attorney on which judgments were confessed.
    2. An appeal lies to this court from the County Court.
    [Opinion filed August 8, 1888.]
    Appeal from the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Ríoh & Stone, for the Hide and Leather National Bank and Charles F. Grey, ajipellants.
    Mr. H. H. Anderson, for Edward Moll, appellant.
    Messrs. Kraus, Mater & Stein, for appellee.
    Messrs. Wile & Reed, Washburn & Bowman and Butz & Eschenburg, for various creditors.
    Mr. Adolph Moses filed a brief in opposition to the motion to dismiss the appeal.
   McAllister, J.

This is an appeal from the decretal order of the County Court in the matter,of the assignment of J. W. Weber, under the act concerning voluntary assignments, declaring the several judgments against said Weber, January 13, 1887, upon notes and warrants of attorney of that date, and the execution liens thereunder, to be unlawful preferences and as such restraining their enforcement.

It appears that said notes were respectively given for l)otm fide, but unmatured indebtedness from Weber to the several parties appellant; that the several judgments were entered up about five o’clock of the afternoon of that day and the executions issued thereon were respectively levied upon all the property of Weber about six o’clock the same evening; and on the morning of the next day the assignment in question from Weber to Itehm was executed and recorded.

Certain of the unpreferred creditors of Weber filed their petition in the County Court alleging that Weber, before and at the time of giving said judgment notes, had determined and formed the purpose of making a disposition of all his property and an assignment, and that he had such assignment in contemplation; that he carried such purpose into effect by making such assignment on the day following that of giving said notes and warrants of attorney; wherefore the same constituted a part of said assignment and unlawful preferences in favor of appellants. That presented the principal issue; but, as incident thereto, it was also an issue whether Weber was, at the time in question, insolvent and knew it. Upon the hearing on pleadings and proofs much evidence was introduced, the witnesses, including Weber, being examined as such in the presence of the court. The court found for the petitioners upon all the issues involved and made the order appealed from.

Upon this appeal, aside from an objection that the court erred in admitting testimony against appellants’ objection tending to prove such insolvency and knowledge on the part of Weber, the only contention on behalf of appellants is, that the finding of the court that Weber contemplated making an assignment before and at the time of making said notes and warrants of attorney, was against the preponderance of the evidence. We have examined and duly considered all the evidence and are brought to the conclusion that the finding of the court is supported by the evidence; that there is such a chain of facts and circumstances welded by the evidence as to leave no reasonable doubt in the mind of an impartial investigator that Weber had formed the determination and was preparing the way to making such assignment before he gave the appellants the notes in question. The case is entirely distinguishable in its facts from that of Field v. Geohegan, 14 West. Rep. 387.

It would bo a task, as use1 ess as onerous, to undertake to state and discuss the evidence in this voluminous record. We think the order should be affirmed.

A motion was made to dismiss the appeal on the ground that an appeal from the County Court to this court is unauthorized by the statute. We are of opinion that, under the statutes as they now are, such appeal is authorized, but shall not waste time by setting out and analyzing such statutes.

Order affirmed.


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    Charles F. Kendall v. Charles F. Young.

      Sa les — Invoice—- 'Evidence of Cost — Rescission—Instruction.
    1. A contract for the sale of a stock of goods, “to be invoiced at cost and as agreed upon,” does not justify a rescission because of the failure of the vendor to produce the original bills of certain of the goods on demand.
    2. In the case presented, an instruction to the effect that it was the duty of the vendor on the request of the vendee to furnish such evidence of cost as merchants in the same line of business usually have, was erroneous.
    [Opinion filed August 8, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.

      This suit was brought by Young against Kendall to recover 81,000 paid the latter on a contract in writing, dated November 15, 1885, by the terms of which appellant was to sell to appellee a stock of goods and fixtures then in a store at Topeka, Kansas, and in the rvords of the contract the same “to be invoiced at cost and as agreed upon (see estimate on show cases, stools, safe, stove, mirrors, viz., 8747.09),” for which appellee was to pay partly in cash and the balance in lands in Michigan. The parties began to invoice the stock shortly after the contract was executed. When the invoice had been partly made, based on the marks on the goods, a dispute arose as to the cost price of certain cotton bats upon which there were no marks. Kendall said the cost price was 13} cents per pound. Young testified that he demanded the original invoices and Kendall refused to produce them, saying there would be a great deal of trouble if he had to hunt through a bushel basket of papers, and that they might as well make a stand there; that h,e (Young)would have to take them at that; that thereupon he (Young) told him that until the bill was presented to him, he would not go any further with the invoice, and he then quit; that he told Kendall he would not go on until he was satisfied that the bats cost 13} cents.
    Kendall testified that he told Young he had destroyed all his bills; that when he came to the bats he called off a number of pounds at 13} cents; that Young said they did not cost 13} cents, and asked if he (Kendall) had the bills; that he told him he had his previous September invoice, and when that was shown to Young he said, “that’s all right; I’m done,” and walked out of the store.
    The fourth instruction given by the court on behalf of plaintiff was as follows:

      “ 4. The court further instructs the jury that under the written contract in evidence in this cause the plaintiff was not bound to accept as final the statement of the defendant as to the cost of the merchandise mentioned in the contract in evidence, but it was the duty of the defendant, on the request, of the plaintiff, to furnish him with such evidence as merchants in the line of business of the defendant usually have of the cost of the merchandise as would be reasonable under the circumstances, as shown by the evidence in this case, unless you believe from the evidence in this case that the plaintiff and defendant agreed that some method specified should be pursued in ascertaining the cost, and if such a method was agreed upon, then that method was to be followed.”
    To which the defendant excepted. Verdict for plaintiff for §1,149.49. Motion for new trial by defendant. Motion overruled and exception by defendant. Judgment on verdict. Defendant appeals, and assigns as error the giving of said fourth instruction.
    Mr. E. A. Otis, for appellant.
    Messrs. Abbott & Bakes, for appellee.
   Garnett, J.

The contract between appellant and appellee provided no method of ascertaining the cost of any part of the stock of goods. The phrase, “ and as agreed upon,” clearly refers to the estimate of §747.09 for show cases, etc., and nothing else. The appellee denies that any verbal agreement was made as to the manner of ascertaining the cost. When the dispute arose between them as to the cost of the cotton bats, Young insisted that he would go no further unless the original bills were produced, and as they were not produced he at once left the store, saying ho was done. He could not arbitrarily rescind the contract. The failure to specify in the agreement any particular mode of fixing upon the cost, did not warrant him in saying he would have the bills or abandon the trade. If he was entitled to any evidence of cost, certainly he could not demand that which was not in the power of Kendall to furnish. There was an implied undertaking on Kendall’s part to produce such evidence in his power as is usual between merchants in ascertaining the cost price of a stock of goods, and such as he could produce without unreasonable labor or delay, and his refusal to produce the same as to any substantial part of the goods, on request of Young, would have amounted to a breach of the contract on his part; but Young had no right to elect the character of evidence that would satisfy him and refuse to proceed unless it was presented. If lie wanted the benefit of a condition like that he should have had it inserted in the contract. He was a man of large experience in handling the goods he proposed to purchase, and may have intended to rely on his experience to save him from any overreaching in fixing the cost price. Whatever inference may be drawn from his failure to require such a stipulation, it is plain that the contract did not save to him the privilege of rescinding unless the original bills were produced. That he demanded, and that alone, he gave Kendall to understand, would satisfy him. He did not even request the production of any other evidence. The fourth instruction given by the plaintiff correctly told the jury that the plaintiff was not hound to accept as final the statement of the defendant as to the cost of the merchandise, but it erroneously told them that it was the duty of the defendant, on the request of the plaintiff, to furnish him with such evidence as merchants in the line of business of the defendant usually have of the cost of merchandise, or to furnish such other evidence of the cost as would be reasonable under the circumstances, as shown by the evidence, unless they believed that some method specified had been agreed on.

There was no proof to show what evidence such merchants usually have of cost prices, or what evidence of cost would have been reasonable under the circumstances.

The instruction was erroneous and the judgment of the court below is, for that reason, reversed and remanded.

Reversed and remanded„