text:
    Pierson W. McNail v. Andrew Welch.

      Mortgages — Foreclosure — Note — Alteration — Payment—Evidence—• Usury.

    Upon a hill to foreclose a mortgage, it is held: That the admissions contained in the answer to the original bill touching an addition made to the secured note, are competent evidence in favor of the complainant; and that the finding of the court below upon the issues of alteration and payment was justified by the evidence.
    [Opinion filed January 4, 1888.]
    In error to the Circuit Court of Washington County; the Hon. George W. Wall, Judge, presiding.
    Mr. J. M. Durham, for plaintiff in error.
    Messrs. Pollock & Pollock, for defendant in error.
   Green, P. J.

The original hill in this case was filed by defendant in error on March 24, 1886, to foreclose a mortgage executed by plaintiff in error May 10, 1882, alleged to have been given to secure a note of that date for §1,250, signed by said Pierson W. McNail, payable to Welch in three years with eight per cent, interest annually, and if not paid within three days after due, then two per cent, damages for non-payment. To this hill defendant answered April 5,1886, admitting execution, acknowledgment and delivery of mortgage, and the execution and delivery of the note as alleged, but denying said McNail was then indebted to Welch, averring the fact to be that about fifteen years before, McNail was indebted to Welch in the sum of $1,000, for which sum Welch held notes of McNail with other persons as security, on which, in the fall of 1879, there was due the principal and about $125 interest; that at that time $1,010 was paid on those notes by defendant’s son to the complainant; that defendant HcNaiJ did not know of said payment until about February 1, 1886, and in ignorance of such fact he and complainant computed the interest on the notes on which said $1,010 had been paids but not credited, and he, HeNail, then executed and delivered said note for $1,250 to complainant in place of the old notes, and in said answer it is further averred said note contains this clause: “If this note is not paid within three days after due then two per cent, damages for non-payment;” and that said clause is a corrupt, usurious agreement, in violation of Sec. 6, of Chap. 74, Ee vised Statutes of the State of Illinois, Act of 1879.

The cause was first heard in the Circuit Court at the April term, 1886. A decree for complainant was entered. On writ of error to this court, at the August term, 1886, that decree was reversed, and the cause was remanded, there being a discrepancy between proof as to the payments and credits therefor as indorsed on the note.

At the April term, 1887, of said Circuit Court, defendant, by leave of the court, filed an amended answer, alleging the payment of indebtedness as before, and also that the note in suit was altered after its execution, without the consent of the maker, by adding the clause, “if not paid within three days after due two per cent, damages for non-payment.” Thereupon complainant, by leave of the court, amended his bill by alleging said addition to the note was made by complainant with the consent of the maker. Upon the hearing the court below found for the .complainant upon the issue of payment and of alterations, found amount due complainant on the note to be $1,000, found the clause allowing damages for non-payment within three days after due to be usurious, and therefore no interest on the principal sum could be recovered and entered a decree for complainant for 81,000 on the finding. To reverse this decree, plaintiffs in error sued ont this writ.

The theory of counsel for respective parties is that in this case the questions necessary to be determined by us in order to properly decide it are these questions of fact:- First, was the addition to the note of the clause, “if not paid within three days after due, two per cent, damages for nonpayment,” made after its execution without the consent oi Pierson W. McNail? Second, was the $1,010, claimed to have been paid complainant on the old note for $1,000 by William McNail, ever, in fact, paid?

It is admitted complainant added the clause mentioned to the note, and did so probably after McNail signed it, and the only witnesses testifying as to the execution were Welch, Pierson W. McNail and Martin; the' testimony of these witnesses, by itself, would not establish the material fact that the addition to the note made by Welch was made with the consent of McNail, but the answer to the original bill also furnishes evidence that he did give such consent. Counsel for plaintiffs in error insist that the answer ought not to be taken into consideration, and that McNail’s admissions therein are not competent evidence against him; but when it appears, as in this case, McNail, with knowledge the mortgage note contained the addition complained of now, joined with his co-defendant in the answer admitting the execution thereof by himself, and in the shape as described in the original bill, claimed the benefit of that clause as furnishing grounds for the defense of usury, adhered to that answer through the entire proceedings up to the April term, 1887, there can be no- doubt, we think, the admissions in the answer were competent evidence. Robbins v. Butler, 24 Ill. 387; Miller v. Chrisman, 25 Ill. 242.

These admissions and the evidence of Welch outweigh the testimony of McNail, and establish, by a preponderance, the fact that the addition to the mortgage note was made with the consent of McNail. It might also be suggested in this connection, if he had not given such consent, but upon discovering the alteration (as he says he did not at the time the suit was commenced) made .no objection thereto, but remained silent when he was called on to speak, and he and his co. defendant by their answer adopted the note, with the addition of the damage clause, as the act of McNail, and based the defense of usury on that clause, the alteration would be ratified an"d defendants below ought- not afterward to be permitted to deny such ratification.

The only payment claimed to have been made complainant, exclusive of the credits on the mortgage note, is a payment of §1,010 in November, 1878, which William McNail testified he then made on an old note for §1,000, which note was afterward delivered up by Welch to P. W. McNail and formed a part of the consideration of the mortgage note. William McNail testified that in November, 1878, his father, P. W. McNail, told him he had promised to pay Mr. Welch §1,000, and to look for him; and he took the money out of the safe in his father’s house—his father1 was sick in the house and could not see him take the money—hitched up to a spring wagon and, in company with his brother James and Charles Lane, drove to Welch’s, and told him what he came for. “He said all right. 1 counted out §1,010. It had a sack string around it. My father had told me it was §1,000 at the hog pen. I counted out §1,010 to Welch. He took it, said he would go to the house, put up team, warm up and count the money, and if it counted out all right he would bring up the note; first time I told father about this was in February, 1886.”

James McNail testified substantially like William as to what took place at Welch’s, except he says Welch left his wagon and came to the buggy and William counted out the money to him; counted it twice. “William did not leave the buggy; counted the money in the buggy. Welch stood by fore wheel when it was counted, brother at my left, and I was between him and Lane.”

Charles 'Lane testified he went with William and James McNail to Welch’s. William handed Welch some money. “He left James and I in the wagon; did not see any money counted; do not know how much money or for what purpose it was paid.” ,

Complainant Welch testified he had no recollection of having received or credited any amount of money on the §1,000 note; denies positively the payment to him of §1,010 by William McNail; says the first he ever heard of this claim of payment was in March, 1886; never received §1,000 at a time since he lived .in the State, except when he sold a big bunch of stock.

John Blankenship, for complainant, testified he was at work for Welch on the occasion when this payment is claimed to have been made, saw the parties when they came; that William McNail got off the spring wagon, came to wagon where witness and Wekh were, told-Welch he had come to pay him some money for interest, took money out of his pocket, paid Welch $110 paper money, two fifty dollar bills and one ten dollar bill. Counsel for plaintiffs in error direct our attention to discrepancies between the testimony given by this witness at the first and last hearing, and insist such discrepancies require us to disregard, or give but little weight to, his testimony. An examination of the record does not sustain the criticism, and the proof made by the testimony above mentioned would seem to be equally balanced as to the material fact of payment alleged and set up as a defense. That fact was not merely that William McNail paid Welch something on the old note, but that the payment so made to Welch was the sum of $1,010. Two witnesses affirm such payment was made and two witnesses deny that to be the fact. It further appears P. W. McNail, who told his son, as the latter testifies, to hunt up Welch and pay him $1,000, made no inquiry and never asked that son about the matter, never inquired what had become of the roll of money taken from the safe and which he had told the son contained the $1,000, and which the son says he paid to Welch, did not ask Welch if he had been paid the promised $1,000, but said nothing about the matter during all the years from 1878 up to March, 1886, although he frequently met Welch and did business with him, and in March, 1886, after he knew of this payment, as he testifies, he offers to give Welch a. deed to the mortgaged property and made no mention of the payment, and told tho witness, Patton, he expected to deed the house to Welch and would exercise his influence with Welch to have him permit Patton to remain in the house. William McNail says he did not tell his father about the payment until February, 1886; that he saw Welch frequently after the time he claims to have made the payment, and Welch promised to bring up the note; never asked for the note or said anything to Welch about it or the payment of §1,010 to him until March, 1886, and never told his father he had taken the roll of mpney from t.he safe.

The court below, in determining the question whether the payment claimed had, in fact, been made to Welch, doubtle.-s took into consideration with the other testimony the conduct and declarations-of P. W. MoUail and his son William, and found such conduct and declarations to be irreconcilable with the claim of payment. The finding of the Circuit Court upon the issues of alteration and payment was justified by the evidence, and its finding that the clause added to the note created a usurious contract and no interest could be recovered, and the §250 paid should be applied on the principal, leaving but §1,000 due complainant, was also right. We find no error in the record requiring the reversal of the decree of the court below, and it is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Green, P. J.

license: Public Domain

text:
    Charles Gager v. James H. Edwards.

      Beal Property—Deed—Breach of Warranty—Mortgages—Foreclosure —Practice—Change of Venue.

    1. A petition for a change of venue after the first term in which it is alleged, as an excuse for failure to give the required notice, that the cause given did not come to the knowledge of the petitioner “until some days since, during this term of court,” is insufficient.
    2. Where the grantee in a warranty deed conveying premises subject to a prior mortgage, remains in undisturbed possession thereof, no suit to collect the debt secured, foreclose the mortgage, or evict him, having been brought, it is no defense to foreclosure proceedings upon his mortgage to secure purchase money, that the prior mortgage is an outstanding incumbrance unpaid and unsatisfied.
    [Opinion filed January 4, 1888.]
    In error to the Circuit Court uf Jackson Comity; the lion. Oliver A. Harker, Judge, presiding.

      Messrs. W. P. and E. T„ Lightfoot, for plaintiff in error.
    Mr. W. W. Barr, for defendant in error.
   Green, P. J.

Defendant in error filed his bill in the court below to the August term, 1886, for the foreclosure of a mortgage executed by plaintiff in error March 1,1886, to secure an indebtedness of 83,976.51 evidenced by his note of same date, payab'e in ninety days to defendant in error with eight per cent, interest from date, and said indebtedness was for the purchase money of the real estate mortgaged. On August 13,1886, Gager filed his answer to the bill, admitting the execution of the note and mortgage by him as alleged, but setting up as a defense that the consideration for said note and mortgage was the purchase money of said real estate; that on the same day the mortgage and note were so executed complainant conveyed, under said purchase, said real estate to defendant by general warranty deed; that there was then an incumbrance of mortgage on said real estate executed by complainant and defendant to Caroline Keiser, February 1, 1881, to secure 82,000 indebtedness, due in two years thereafter, with eight per cent, interest from that date, which said mortgage indebtedness had not been paid, or any part thereof, but is a lien on said premises subsisting prior to said deed, and the covenant of warranty therein was broken as soon as made, and defendant offered to set off the amount of the debt so due said Caroline Keiser against the amount of the debt secured by the mortgage to the complainant.

" To this answer complainant filed a general replication August 17, 1886, and the cause was continued to the December term, 1886, during which term and on February 2, 1887, defendant filed his petition for change of venue, on account of the prejudice of the Judge, alleging therein that a knowledge of such prejudice did not come to him, “until som.e days since, during this term of court.” The court refused to order the change of venue, and on the same day, February 2, 1887, the cause was heard. The court refused to allow the set-off claimed, but entered a decree for 84,268.12 in favor of compiainant. To reverse this decree defendant below sued out this writ of error, and claims and insists said decree should be reversed upon two grounds.

First. Because the Circuit Judge denied the application for a change of venue.

Second. Because the court below refused to credit the amount of the debt secured by the Keiser mortgage upon the indebtedness due complainant, secured by the mortgage described in the bill.

The application for change of venue was not made until the second term of the court after the filing of the bill, and it does not appear that defendant below gave complainant any notice of his intention to make such application or that the knowledge of the alleged prejudice of the Judge came to the applicant within less than ten days before he made such application. Sec. 6, chapter entitled Venue, of our statutes, 2>rovides: “Ho application for a change of venue after the first term, shall be allowed, unless the party applying shall give to the opposite party ten days previous notice of his intention to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than ten days before the making of the application.” In this case it is sought to cure the omission to give the notice required by averring in the petition, “ the knowledge of such prejudice did not come to him, the petitioner, until some days since, during this term of court.”

By the terms of the section quoted, the petitioner could only be excused from giving notice of his intended application by making it appear to the court that the cause he gave for the change of venue had arisen, or come to his knowledge, within less than ten days before making application. This he failed to do, but averred in his petition that during the December term (which commenced at least thirty days before said petition was filed) the prejudice complained of came to his knowledge, and some days then elapsed before he applied for a change of venue, but how many days had so elapsed is left to conjecture. The petition was clearly insufficient and the court properly denied the application for a change of venue.

The second ground relied on for reversal is equally untenable. It appears by the record, plaintiff in error, at the time of the hearing and during several years prior thereto, had been in possession of the mortgaged premises. He had paid no part of the mortgage debt due Caroline Keiser. Ho proceedings to collect the same or to foreclose her mortgage had been commenced, nor had any action been brought to evict plaintiff in error from said premises. Such being the facts, defendant below was not in a position to avail himself of the defense interposed. Where the purchaser and grantee in a warranty deed conveying premises on which there is a prior mortgage, remains in the undisturbed possession of the premises, and the mortgage debt is unpaid, and no suit has been brought to collect it or foreclose the mortgage, or to evict the purchaser, it is no defense in a foreclosure suit against him upon his mortgage given to secure the purchase money, that such prior mortgage is an outstanding incumbrance, unpaid and unsatisfied. Rawle on Covenants of Title, 3d Ed., pp. 135, 667, 685; 2 Jones on Mortgages, Sec. 1500; Cherry v. City Nat. Bank, 77 Ill. 502; Lafarge v. Mathews, 68 Ill. 328; Vining v. Leeman, 45 Ill. 247. An additional reason for denying the defense interposed has been suggested by counsel for defendant in error, viz., that by the covenants in his mortgage, Gager canceled the covenants in the deed made by Edwards to him on the same day, while, under the facts in this case, the Keiser mortgage was an incumbrance executed by said parties jointly to secure their joint note. It may be fairly held the covenants in the deed were not intended to and did not apply to that incumbrance. Yet, for the reasons we have given, it is clear the defense interposed could not avail defendant below. Hence further discussion of the point suggested by counsel for defendant in error seems to us unnecessary and the decree of the Circuit Court is affirmed.

Decree affirmed.


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    Ohio & Mississippi Railway Company v. James M. Cox.

      Bailroads—-Highway Crossing—Approaches— Maintenance of—Personal Injury—Evidence—Instructions—Estoppel.
    In an action against a railroad company to recover damages for persona! injuries, alleged to have been received because of the defective condition of an approach to a highway crossing, it is held: That the defendant is estopped from denying that the crossing in question was at the intersection of its road with a public highway; that evidence touching the original construction and subsequent condition of the crossing in question and approaches thereto, and concerning repairs made by the defendant after the injury occurred, were properly admitted; and that there was no error in modifying and refusing instructions.
    [Opinion filed January 4, 1888.]
    Appeal from the Circuit Court of Wayne County; the Hon. C. C. Boggs, Judge, presiding.
    Messrs. Bollard & Werner, for appellant.
    Messrs. Frank B. Hanna and Creighton & Sibley, for appellee.
   Green, P. J.

This suit was "brought by appellee to recover damages for personal injuries alleged to have been received by him because of the defective condition of an approach to a road crossing on appellant’s railway, which defective condition was alleged to he due to the failure and neglect of appellant to keep such approach in repair.

A trial was had in the court below; the jury found defendant .guilty, and assessed plaintiff’s damages at §500; the motion by plaintiff for a new tidal was overruled, and judgment on the verdict rendered by the court, whereupon plaintiff appealed.

It appears from the evidence that. Cox was riding in company with a nephew, from the town of Fairfield, and after crossing the railway track of appellant’s road to the west side . thereof, and within a short distance of the road crossing, the mule he was riding stepped into a hole in the road, fell, and Cox was thrown upon the ground and received the injuries complained of. It further appears that a few feet west of said crossing the line of travel was south or southwesterly within appellant’s right of way, and almost parallel with the railway for a considerable distance south of the place where the mule fell. Other material facts that appear in the record will be mentioned hereafter.

To maintain his action, plaintiff was bound to prove, among other facts, that the place where he received the injuries was an approach to a road crossing on defendant’s road; that such crossing was‘at the intersection of a highway with said railway; that the approach was, at the time and place of the injury, in a defective condition, and by reason thereof plaintiff received the injuries complained of, while exercising reasonable care . himself.

The duty of appellant with respect to road crossings and approaches thereto, is imposed by the eighth section of the Act of 1874:

“ Hereafter, at all of the railroad crossings of highways and streets in this State, the several railroad corporations in this State shall construct and maintain said crossings and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property.”

But it is insisted on behalf of appellant, that no proof was made on the trial that the road crossing in question was at the intersection of its road with a public highway, legally established at that place, and hence appellant was not bound to maintain that crossing or the approaches thereto. This position is not supported by the record, but, on the contrary, the proof is that a public highway from Fairfield to Barnhill, legally established, existed at the time appellant’s railway was constructed; and in constructing it, appellant so appropriated and occupied a part of said highway for its railway, as to prevent travel across it at the point so obstructed, and for a time, and until seven or eight years before this suit was brought, the public using the highway passed under the trestle work of the railway, about seventy-five feet below said point, and about seven or eight years before the commencement of this suit, the proper public authorities notified and required appellant to put in a road crossing, in obedience to which command the 'crossing in question and the approaches thereto were then put in and constructed by appellant. By this act it recognized and adopted the road intersecting its railway at said crossing as a public highway, invited the public to use and treat it as such, and is estopped to now deny that fact. The public authorities had the power, under the ninth section of the act cited, to require appellant to put in said crossing, and the fact the public were obliged to, and did, pass under the trestle work because of said obstruction by appellant’s road, and the subsequent establishment of said crossing at the point where the highway would have crossed as originally laid out and used, can not be held as vacating a part of said highway or creating a new highway. People ex rel., etc., v. C. & A. R. R., 67 Ill. 118.

Counsel for appellant next object to and assign for error the admission of evidence to show how said crossing and the approaches thereto were originally constructed by appellant, and the condition thereof at various times before the injury, and concerning repairs made upon the alleged approach on the west side of said railway, after said injury to plaintiff occurred.

We have examined the parts of the record referred to, and find in some instances no exception was taken to the ruling of the court, and we think also the evidence objected to was properly admitted. Appellant denied that the place where plaintiff was injured was upon an approach to said crossing maintained by appellant, and which it was bound to keep in repair, but insisted the injury occurred upon the highway south of said approach.

The acts of appellant in the original construction of said approach and in making repairs thereon thereafter, which the court permitted plaintiff to prove on the trial, were all relevant and proper as evidence of the extent and location of the approach, constructed, maintained and treated by defendant below as an approach to said crossing and which it was hound to keep in a safe condition. We perceive no better way of proving this material fact denied by appellant, than by evidence of the acts of the servants and agents of appellant in constructing such approach, touching the manner of its construction, the distance it extended south of said crossing on the west side of appellant’s track when constructed and finished, and the repairs made and work therein thereafter done by appellant’s servants, evidencing the intent of appellant to claim and control the part so repaired and worked upon as an approach to said crossing. In this manner the point where said approach ended and also the fact whether the plaintiff received his injury on said approach, or on the highway, could be definitely proven, and we are satisfied the jury were justified in finding from all the evidence that appellee was injured while exercising reasonable care, upon an approach to a road crossing on appellant’s railway, and by reason of the neglect of appellant to keep such approach in a safe condition for persons to travel over, as it was required by law to do.

The refusal of the court below to give an instruction to the jury requested by defendant, and modifying another instruction on behalf of defendant and giving it as so modified to the jury, is assigned for error, but the refused instruction, if given, would not have been a correct statement of the Jaw. It is as follows: “The court instructs the jury that where a railroad crosses a highway on the same level or grade, so as to require nothing to be done to the highway to get over the tracks of the railroad, then the railroad company is bound only to construct the crossing, and it devolves upon the authorities, who are responsible for the condition of the highway, to keep it in proper condition up to such crossing.”

Such an instruction, in this case, was calculated to mislead the jury. It ignores the legal duty of a railroad corporation to provide and maintain an approach to a crossing, and would direct the attention of the jury entirely to the crossing over the track of the railroad, and devolves the duty of providing an approach thereto upon the authorities having control of the highway. We do not understand this to he the law, and the instruction was properly refused. ¡Nor did the court err in modifying the other instruction for defendant before giving it to the jury. As modified it was a correct statement of the law applicable to the facts proven.

We find no error in this record requiring the reversal of the judgment of the Circuit Court and therefore affirm the same.

Judgment affirmed.


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    The Continental Life Insurance Company v. Catharine Thoena, Adm’x.

      Life Insurance —Representations—Warranties—Application—Agency— “ General Merchant ’'—Estoppel—Instructions—Ecideuce.
    1. Where the agent of a life insurance company has, in the application, described an applicant for insurance, who was engaged in butchering and keeping a saloon and boarding house, as a “ general merchant,” the com. pany is estopped from asserting that such description is untrue.
    2. This court holds that the representations contained in the application in question, touching the applicant’s use of stimulants and narcotics, and the question whether he had had a certain disease, were not warranties.
    [Opinion filed January 4, 1888.]
    In error to the City Court of East St. Louis; the Hon. B. II. Canky, J udge, presiding.
    ¡M¡r. L. H. Hite, for plaintiff in error.
    The rules by which a policy of insurance is to he construed, and the principles by which it is governed, are the same as those which are applied to other mercantile contracts. Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106.

      Where the authority of the agent is written, persons dealing with him are bound to inform themselves as to its contents. Rawson v. Curtis, 19 Ill. 456.
    Where an agency is exercised in respect to matters governed by known usage, it will be presumed, in the absence of proof to the contrary, that the agency is to be conducted in the manner and according to the practice which is allowed and justified by such usage. U. S. Life Ins. Co. v. Advance Co., 80 Ill. 549.
    The agent must, if special, act within the scope of his agency. lie can not bind the principal beyond the scope of his agency. Williams v. Merritt, 23 Ill. 623.
    When the directions of the master are general as to the business in which the servant is employed, he confides in.his discretion; but when the direction’s are specific, it is otherwise. In the former case the master becomes liable for all the- acts of the servant performed in the discharge of the duties required; but in the latter case, if the servant exceeds the specific directions, the act- performed beyond the authority becomes his own, for which the master is not liable.
    Mr. M. Millard, for defendant in error.
    The first point made is that the insured did not state his business accurately. He was a butcher, farmer, huckster, sausage maker and saloon keeper. The soliciting agent of the defendant wrote him down as a “general merchant.” This under all our decisions, was the act of the company, and a waiver of the condition, if the agent know what his business really was. Under the evidence the jury was authorized to find that Crocker knew Thoena, and was familiar with his avocation, and especially with the saloon part of it. Mootz and Draggon, two of defendant’s witnesses, both say they went to the saloon frequently with Crocker while he was trying to get Thoena to take a policy. Crocker asked them to go there for the purpose of helping him to induce Thoena to insure. And when Thoena finally capitulated to the joint efforts of the defendant’s agent and those worthy people, who probably exerted considerable influence, Crocker filled up the application and presented Thoena as a “general merchant.”

      Under such circumstances the company is bound, no matter what the policy contains. Commercial Ins. Co. v. Ives, 56 Ill. 402; Union Ins. Co. v. Chipp, 93 Ill. 97; Newark Ins. Co. v. Sammons, 110 Ill. 166; Rockford Ins. Co. v. Nelson, 75 Ill. 549; American Ins. Co. v. Luttrell, 89 Ill. 314; St. Paul F. & M. Co. v.Wells, 89 Ill. 82; Atlantic Ins. Co. v. Wright, 22 Ill. 463; F. & Marine Ins. Co. v.Chestnut, 50 Ill. 111; Com. Ins. Co. v. Spankneble, 52 Ill. 53; Neith v. Ins. Co., 52 Ill. 518; Reaper Ins. Co. v. Jones, 62 Ill. 458; Andes Ins. Co. v. Fish, 71 Ill. 620; Germania Ins. Co. v. McKee, 94 Ill. 494.
    And to this long list of cases may be added that of Insurance Co. v. Wilkinson, 13 Wall. (U. S.) 222, which is an authority well deserving of examination.
    But under a decision of our Supreme Court those answers are not warranties, and unless given with a fraudulent design the company can not escape its liability. Continental Life Ins. Co. v. Rogers, 119 Ill. 474.
   Green, P. J.

This suit was upon a policy issued by plaintiff in error to George Thoena on May 15,188-3, to recover the amount to be paid at his death by the terms of said policy; defendant below pleaded the general issue and gave notice tinder it. that on the trial defendant would give evidence and insist that George Thoena was, on the 10th day of May, A. D. 1883, and prior and subsequent thereto, in the habit of personally using alcoholic and other stimulants immoderately and to excess, and that his habit through life and up to May 10, 1883, liad not been in that respect moderate and without excess. And that the profession and occupation of said George Thoena on the 10th of May, 1883, was not that of general merchant, but that his principal occupation was then, and continued to be, up to the time of his death, that of a saloon keeper. The verdict of the jury was for plaintiff, assessing damages at §1,500 (the amount of death loss). Defendant’s motion for anew trial was overruled; the court rendered judgment on the verdict, to reverse which plaintiff in error sued out this writ.

It appears from the evidence that the assured paid all the premiums as required by the terms of the policy up to the time of his death, which occurred February 10, 1885; that proofs of death were made within the time prescribed by and in accordance with the provisions of the policy, and the only defense reded on is, that certain answers made to questions in the written application for the insurance, signed by Thoena, were untrue, viz.: To the question, “Profession or occupation?” Answer, “ General merchant.”

To the question, “ Describe fully your habit in regard to the personal use of alcoholic or other stimulants, narcotics and tobacco?” Answer, “Stimulants moderately, no excess; no tobacco, no narcotics.”

To the question next following, “ What has been your habit in this resqiect through life?” Answer, “Same.”

To the question, “ Has the said party had any of the following complaints” (naming twenty-nine different kinds, including rheumatism). Answer, “ Ho.”

These answers are said to be untrue and to constitute warranties for the breach of which, by the terms of the application, the policy is avoided; and the following clauses of said application, and provisions and requirements referred to in an addendum to the policy, are relied on to support the defense interposed : “ Agents of the company are not authorized to make, alter or d'seharge contracts, to waive forfeitures of policies, or to receive premiums when overdue.” “ And it is hereby covenanted and agreed that the statements and representations contained in this application and declaration shall be the basis of, and form part of the contract or policy of insurance between the said party or parties signing the application and said company, which statement and representations are hereby warranted to be true ; and any policy which may be issued upon this application by the Continental Life Insurance Company, and accepted by the applicant, shall be so issued and accepted upon the express condition, that, if any of the statements or representations in this application are in any respect untrue * * * the said policy shall be null and void.

“ It is hereby affirmed and declared that in this application no circumstance or information touching the past or present state of health, habits of life or condition of said party has been concealed or withheld which may render an assurance on the life of said party more than usually hazardous, or with which the directors of the Continental Life Insurance Company ought to be made acquainted.

“ The contract between the parties hereto is completely set forth in this policy, and the application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing, signed by the president or secretary of the company, whose authority for this purpose will not he delegated.

“If any statement made in the application for this policy he in any respect untrue, this policy shall be void and all payments which shall have been made to the company on account of this contract shall belong to and be retained by the company.”

It further appears by the evidence that George A. Crocker, at the time said application was written and signed and the policy delivered, was the agent of plaintiff in error to solicit applications for insurance, effecting the insurance and delivering policies therefor to parties insured and collecting premiums, and had been such agent in East St. Louis (where Thoena resided) in 1882, and until January 25, 1883; that he procured a friend of Thoena to go with him to aid in inducing Thoena to take out a policy, and after several visits for that purpose succeeded in getting Thoena to make an application and take out the policy sued on; that said application and tlie questions and answers therein were written by Crocker, and that he at that time knew the kind of business Thoena was engaged in. With this knowledge, Crocker, when said application was signed by Thoena, forwarded it to the company, the policy was sent him, and upon receiving payment of the premium for the first year, he delivered it to Thoena. The premiums for the two following years were paid by Thoena to Benshaw, an agent of the company, who also knew Thoena and the business carried on by him. That business was butchering, keeping a saloon and boarding house, and selling vegetables; it„was described in the application as the business of “ general mercAantthis was written therein by the agent of the company and by him adopted as a true description of said business, he at the' time knowing what that business really was, and plaintiff in error is estopped from asserting such description is untrue.

It is insisted also that Thoena had the rheumatism, and hence his answer to the question “ Have you ever had ” certain named diseases, including rheumatism, was untrue. It does not appear he was so afflicted at or before the time the application was signed, and we do not understand he contracted that he would not have that disease after that date, nor do we understand the proof to be, as counsel for plaintiff in error contends, that Thoena used stimulants to excess or used narcotics or tobacco. The most that can be claimed by the proof is, Thoena occasionally, and not frequently, at some time, a year or two before his death, took a narcotic as a remedy for rheumatism, and occasionally smoked a cigar, but used tobacco in no other form. His habit as to the use of stimulants was as stated in the application, moderate, not excessive, and Crocker knew this fact and what his habit was when said application was written. The representations in that application were not warranties, and no pretense is set up they were made with a purpose to deceive or defraud the company. Under the circumstances proven in this ease if the answers were untrue, as claimed, the policy would not for that reason be void even under the clauses and conditions before quoted. Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

In a case where a series of questions were asked the assured, as in this case, it was stipulated: “It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that this application shall form part of the contract of insurance and that, if there be in any of the answers herein made, any untrue or evasive statement, or any misrepresentation or concealment of facts, then any policy granted on this application shall be null and void, and all payments thereon shall be forfeited to the company.” The defense was, the insured had been afflicted with a certain disease and that lie has stated in his application he had never been so afflicted. This statement was held to be a representation and not a warranty, and although untrue would not avoid the policy. Mouler v. Am. Life Ins. Co., 111 U. S. 335; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 233; Rowly v. Empire Ins. Co., 36 N. Y. 550; Germania Fire Ins. Co. v. McKee, 94 Ill. 494.

In the case at bar the agent of the company, with a knowledge of the business of the assured, and his habits, wrote out the application; there was no collusion between the assured and the agent, or fraud or fraudulent intent in so doing. It is not contended that the business of the assured or his habits in the use of stimulants, narcotics or tobacco, increased the hazard, or that the rheumatism caused or contributed to cause Ms death; the assured paid all the premiums up to the time of his death as he agreed to, and the company took and retained them, and it would be a fraud on its part, under all the facts, to keep the money and not pay the sum it agreed to ¡jay upon the death of the assured. Union Ins. Co. v. Chipp, 93 Ill. 97; Am. Ins. Co. v. Sutton, 89 Ill. 314; Rockford Ins. Co. v. Nelson, 75 Ill. 548; F. & M. Ins. Co. v. Chesnut, 50 Ill. 111; Com. Ins. Co. v. Spankneble, 52 Ill. 53.

There was no error in the rulings of the court below in the admission of evidence objected to on behalf of the defendant, or in giving the instruction for plaintiff complained of, and refusing the 1st, 2d, 3d and 5th instructions asked for on behalf of defendant. We are -satisfied the verdict was right, and that justice has been done, and affirm the judgment of the City Court.

Judgment affirmed.


text:
    Frank Dalby, for the use of George W. Whitehead, v. J. M. Campbell et al.

      Replevin—Action on Bond—Measure of Damages—Vindictive Damages —Attorney’s Fees—Depreciation in Value—Good Will—Pleading—Surplusage.

    1. Vindictive and punitive damages are not recoverable in a suit on a replevin bond for a breach of the condition thereof.
    2. The actual damages sustained by the defendant in replevin by reason of the wrongful suing out of the writ, are the only damages which can be properly averred and recovered in such an action.
    3. Attorney’s fees paid in defending the replevin" suit and damages arising from the depreciation in the value of the property during its wrongful detention, may be recovered. But damages to the good will of the business of the defendant in replevin, can not be so recovered.
    4. Where the declaration does not aver and claim specific damages for each of the several injuries mentioned, what is said as to such injuries may be rejected as surplusage.
    [Opinion filed January 4, 1888.]
    Appeal from the Circuit Court of Edwards County; the Hon. C. C. Boggs, Judge, presiding.
    Mr. S. S. Whitehead, for appellant.
    Mr. H. J. Straws, for appellees.
   Green, P. J.

This was a suit on replevin bond, brought by appellant for the use of the defendant in the replevin suit against appellees, the obligors in the bond. A demurrer to the amended declaration, general and special, was sustained as to some of the special causes assigned, and overruled as to all the others. Thereupon plaintiff refused to prosecute for the recovery of those damages only, for which, by such ruling of the court, he was permitted to maintain his suit, and elected to stand by bis amended declaration. The court then dismissed the cause for failure to prosecute and entered judgment against plaintiff for costs, to reverse which judgment he appealed.

The property replevied was the press, type, fixtures, etc., in the possession of said Whitehead, and used by him in printing and publishing a newspaper, and for job work. The ruling of the court upon said demurrer is assigned for error, and is practically the only question in the case. The controversy is as to the kind and character of injuries for which plaintiff can legally recover damages in this suit, and the special causes of demurrer are aimed at averments which, appellees insist, set up and claim damages not recoverable in this form of action, for the injuries therein mentioned. The four several breaches assigned and the averments thereunder are quite voluminous, and need not be here reproduced. We will comment only on such parts thereof as are material.

We do not understand under the first breach assigned specific damages are claimed, except for the value of the use of the property during the time of its wrongful detention, and for costs, expenses and attorney’s fees, necessarily paid out and incurred in defense of the replevin suit. All that is averred under said breach concerning profits, earnings, contracts and breaking up the business of said Whitehead, is not followed by, or connected with, an averment of specific damage therefor, and may bo treated as surplusage. And under the second breach assigned, if it was the purpose of the pleader to aver and claim specific damages for each of the several injuries mentioned other than the deprivation of the use of said property, and the value of such use during the time of the wrongful detention “thereof, and the costs, expenses and attorney’s fees, he has not used apt words to effect such purpose.

Under the 3d breach assigned, it is averred the replevin writ was sued out vexatiously and maliciously by the defendants, and vindictive and punitive damages are claimed to be recoverable by reason thereof. Under the 4th breach assigned, it is averred “ said George W. W hitehead was damaged in the good will of his business the further sum of §500.” The special demurrers to these averments under said 3d and 4th breaches were properly sustained by the court below. Vindictive and punitive damages are not recoverable in a suit on a replevin bond for a breach of the condition thereof. In Spaids v. Barret, 57 Ill. 290, this question is discussed with reference to a bond in attachment. And such a bond, even, is there held not to be a security for vindictive damages, nor are we advised of any authority for the recovery of damages in a suit of this character, because the defendant in replevin is damaged in the good will of his business. This being an action ex contractu, and not in tort, vindictive and exemplary damages are not recoverable, but the actual damages sustained by the defendant in replevin, by reason of the wrongful suing out of the writ, are the only damages which can be properly averred and recovered in this ease. We will not attempt to state specifically and in detail all such damages, but appellant can rightfully aver damages for injury to the replevied property, and depreciation in the value thereof while unlawfully detained from him, for the value of its use during the time of such detention, and for the amount of attorney’s fees, costs and expenses he necessarily expended or incurred in defending his right to said property and securing the return thereof, ánd such damages he would be -entitled to recover to the extent he proved the same. The general rule as to the measure of damages recoverable for the breach of the condition of a penal bond, is th us stated by Sedgwick in his treatise: “Mo other sum can be recovered under a penalty than that which shall compensate the plaintiff for his actual loss.” Scdg. on the Measure of Damages, Chap. 16, side page 396.

The views we have expressed touching the proper elements of damage in actions like this are supported by Odell v. Hole, 25 Ill. 204; Shepard v. Butterfield, 41 Ill. 76, and Petrie v. Fisher, 43 Ill. 442. The Circuit Court erred, however, in sustaining the special demurrers to the averment of damage for attorney’s fees paid by appellant in defending said replevin suit, and to the averment of damage by reason of the depreciation in value of the replevied property, occasioned by the wrongful detention. These were elements of damage plaintiff below had the right to aver and prove, and he should have been permitted to prosecute his suit therefor. The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    The People ex rel., etc., v. Clovis Soucy.

      Mandamus—Petition—What Must Appear—Jurisdiction—City Court of East St. Louis—Validity of Judgment—Village of Cahokia—Supervisor„
    1. A writ of mandamus will not be awarded unless the petition upon its face shows a clear right to have the defendant compelled to do the act which it is sought to have him ordered to perform.
    2. The petition for mandamus must set forth every material fact on which the petitioner relies.
    [Opinion filed January 4, 1888.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Wat. H. Sjxyder, Judge, presiding.
    This proceeding was instituted to compel appellee, as Supervisor of the village of Cahokia, to pay a judgment alleged to have been recovered against said village by the relator, whose petition is as follows:
    “ James L. Brackett, petitioner, represents that on the 6tlx day of October, 1886, he recovered a judgment against the village of Cahokia in said county, for the sum of twelve hundred and thirty dollars, in the City Court of East St. Louis, which is still in force and unsatisfied; that Clovis Soucy, the defendant, claims to he and is acting as Supervisor of said village; that as such Supervisor the defendant has funds in his hands belonging to said village with which to pay said judgment, and which should be applied in paying the same; that on tho 22d day of January, 1887, the petitioner caused a transcript of said judgment to be presented to the defendant, and a demand made upon him to pay the same, but the defendant refused and still refuses so to do. Therefore petitioner prays that the defendant be summoned to answer this petition, and that a peremptory writ of mandamus issue commanding him to forthwith pay said judgment, and that such other order be made in the premises as justice shall demand.”
    The defendant’s demurrer was overruled at the February term, 1887, and the cause was continued.
    At the May term following, the case was tried by the court, as the bill of exceptions states, “Upon the petition, stipulation of tho parties, and the transcript of the judgment.”
    On the trial the plaintiff asked that the following propositions be hold by the court to be the law, but the court refused so to hold.
    1. “ That the judgment of the plaintiff against the village of Cahokia is valid, and its payment can be enforced by mandamus against the defendant.
    2. “ That the defendant being the custodian of the village funds and its disbursing oEcer, he is the proper party to be compelled by mandamus to pay the judgment in question.”
    The stipulation mentioned is as follows: “The defendant desires to raise the following questions by way of defense to said petition:
    “1. Had tho City Court of East St. Louis any jurisdiction over the village of- Cahokia at the time of rendition of judgment set up in the petition?
    “2. Has the court power by this proceeding to compel payment of a judgment in esse in the City Court of East St. Louis?
    “ 3. Will this action lie against defendant as Supervisor of the village of Cahokia? Should not the proceeding be against the School Trustees?
    “4. Was the judgment mentioned in the petition a valid one, the defendant, who was Supervisor at'the time of its rendition, not having been served with process, and having no knowledge of such suit pending in said court until after the term at which it was rendered had adjourned?
    “And it is stipulated that any facts not disclosed by the petition may be proved by evidence to be introduced upon the hearing without further pleading.”
    By the transcript read in evidence it appears summons in suit of James L. Brackett v. The Village of Cahokia issued out of the City Court of East St. Louis, and was duly served upon MeCrackin, as Supervisor of said village, August 13, 1886; that the declaration was in assumpsit and contained the common counts only; that on September 22, 1886, the defendant, by its attorney, filed its plea of non-assumpsit to said declaration, and on October 1, 1886, the cause was tried by the court, a jury having been waived by the parties, who appeared by their respective attorneys, and the court, after hearing the evidence and arguments, found the issue for the plaintiff and rendered judgment on the finding for $1,230 and costs.
    This was all the evidence introduced, whereupon the court dismissed the petition and entered judgment for costs against the relator, who brings the case here by appeal.
    Mr. M.- Millard, for appellant.
    Mr. L. H. Hite, for appellee.
   Green, P. J.

Much space of the printed arguments on behalf of both appellant and appellee is devoted to discussing the question: Is the judgment of the City Court of East St. Louis, mentioned in the petition, a valid judgment?

It is not necessary to a decision of this case to determine this question. If it be conceded said judgment is valid, yet if it also appéars by the record no case was made by appellant entitling him to the peremptory writ prayed for, it was properly denied by the court below. A peremptory writ of mandamus being an order requiring prompt and exact compliance with its terms, and the consequence of disobeying it being to place the defendant in contempt and make him liable to severe penalties, courts uniformly require that the petition, upon its face, shall show a clear right to have the defendant compelled to do the act which the petitioner prays he shall be ordered to perform.

In Lavalle v. Soucy, 96 Ill. 467, the petition averred Soucy was elected Supervisor, qualified as such, and at the time of his election and prior thereto, Lavalle had held that office, and as such officer so had possession and control of all the books, papers and moneys of said commons; that notwithstanding the expiration of his term and the fact that he was no longer entitled to the possession of such books, papers and moneys, Lavalle refused and still refuses to deliver the same to the possession and custody of the petitioner. It was also alleged that petitioner demanded in writing of Lavalle the possession of such books, papers and moneys, and that Lavalle refused to comply.

A demurrer to this petition was overruled in the Circuit Court, and in reversing the order and judgment there rendered the Supreme Court say: “The petition is wholly insufficient ; a writ of mandamus will be awarded only in a ease where the party applying for it shows a clear right to have the defendant do the thing which he is sought to be compelled by mandamus to do; the petition must show upon its face a clear right to the relief demanded, and every material fact on which the petitioner relies must be distinctly set forth;” and it is further said : “In this case there is no direct allegation there were any books, papers or moneys belonging to the said commons.”

Humorous decisions of our Supreme Court prior to and succeeding the case cited above, announce and hold the same rule, that the petition for mandamus should set forth and show on its face a clear right to the writ. Tested by this rule, the petition in this case is manifestly defective. It does not aver the material fact that it was the duty of defendant, or that he had the lawful right or authority to apply funds in his hands as Supervisor to pay said judgment, nor was any proof offered under the clause of said stipulation that any facts not disclosed' by the petition may be proved by evidence to be introduced upon the hearing without further pleading; hence, if that clause was inserted to enable petitioner to heal any infirmity in tlio petition or supply a defect on the face of it by proof of a material fact not averred, the purpose was defeated by the failure to introduce such proof. Counsel for appellant refer us to section 8 of the Act of 1874, Laws of 1874, p. 67, to show that by said section defendant was made custodian of the funds and the disbursing officer of said village. On examination, such does not appear to be the case, but by said section he is made custodian of money derived from leasing or selling the commons of the village of Oakokia, and it does not appear he has the power, or that it is his duty to act as a disbursing officer.

We desire further to say, that, while we deem it unnecessary to pass on the question of the validity of the judgment rendered by the City Court of East St. Louis, we do not wish to be understood as holding that the village of Caliokia could not give that court jurisdiction of it as a party to a suit, by appearing by its duly authorized attorney in that court, filing a plea and proceeding to trial; and counsel for appellee has favored us with no reference to authorities sustaining such a view. We think the court bolow properly dismissed the petition in this case, and rendered judgment for costs against the relator. Its judgment is affirmed.

Judgment affirmed.


author: Gbeen, P. J,

text:
    John L. Kaley v. Joel L. Musgrave et al.

      Negotiable Instruments—Note^Assignment—Commencement of Suit— Evidence.

    1. The plaintiff must have a right of action against the defendant at the commencement of the suit.
    2. In an action on a promissory note, "wherein the plaintiff claims as assignee of the note, it is held: That the presumption that the note was assigned before maturity for a valuable consideration to the plaintiff, was overcome by the evidence; and that the jury were justified in finding from the evidence that the assignment, if made at all, was not made to the plaintiff until after the commencement of this suit.
    [Opinion filed January 4, 1888.]
    Appeal from the County Court of Crawford County; the Hon. Joseph B. Cbowley, Judge, presiding.
    Messrs. Callahan & Jones, for appellant.
    Messrs. Robb & Bbadbeeby, for appellees.
   Gbeen, P. J,

This suit was commenced before a Justice of the Peace, February 22, 1887, in the name of the appellant, claiming as assignee, against appellees as makers, to recover the amount of a promissory note for §40, dated May 7, 1881, ¡tayable to the order of John S. Boyd four months after date, with eight per cent, interest. The cause came by appeal to the County Court, where a trial was had resulting in a verdict for defendants, whereupon plaintiff entered a motion for a new trial, which the court overruled and rendered judgment on the verdict against plaintiff for costs. To reverse the judgment plaintiff took this appeal. The defenses interposed were set-off, and that Kaley was not the owner of said note, and the same bad not been assigned and delivered to him at the time the suit was brought, and he had not then any cause of action against defendants.

It appears from the evidence that in June or July, 1881, Boyd, 'the payee of the note, bought a reaper of Jacob Holderman, and in part payment assigned said note in blank and delivered it, so assigned, to Holderman. Two years after, the latter showed Boyd the note and told him Musgrave would not pay it. Soon after that Boyd saw Musgrave, spoke to him about the note, and he said it was paid; that he had worked for Holderman, who still owed him. This conversation Boyd reported, shortly after it occurred, to Holderman, who said he must have cash for the note; that Mnsgrave owed him on some other matters and he would settle with him in that way for his work. In a short time after this communication, Ilolderman handed Boyd the note, who left it with a J ustice for collection and told him he wanted it collected at once, and he, Boyd, afterward learned Holderman took the note away from the Justice, and heard nothing more about the note until the winter of 1886-7, when Holderman asked Boyd to pay the note, saying Musgrave had not yet paid it. Boyd replied he ought to have left the note with the Justice and allowed it to be sued on, and Holderman said the Justice did not understand the case. It further appears the note was signed by J. L. Musgrave, was for a debt of his own, and his wife signed it with him. It was admitted J. L. Musgrave, if present, would testify at the trial that the attorney for plaintiff informed him the suit was brought in the name of Kaley to avoid Mnsgrave’s defense, and Kaley, the plaintiff, testified on behalf of defendants, that he never saw the note sued on until the day of the trial in the County Court; that in the spring of, 1887, about March, Mr. Callahan wrote him he had a note on Joel L. Musgrave he would collect, and pay to witness for hay and goods his brother and men on his farms had been getting of witness; that some time afterward Mr. Lowe, who stays in Mr. Callahan’s office, asked witness about that note, and witness said “I guess that will be all right,” and further testified: “And this is all I know about the matter. I knew nothing about the suit until Joel L. Musgrave came down to my store at Hew Hebron to see me about it, and told me there had been a suit on the note.” And on cross-examination plaintiff testified: “Mr. Callahan has been doing all my legal business for some years.” The record discloses these uncontradicted facts: that as late as the winter of 1886-7, Holderman held and claimed to be the legal owner of the note in controversy as the assignee of Boyd. The attorney for plaintiff admitted the suit was brought in the name of Kaley to cut off a defense; that if said note was ever assigned to plaintiff it was not until after the commencement of the suit in February, 1887, because in March of that year Mr. Callahan informed plaintiff he (Callahan) had the note, and the fair import of his letter is that the note was not assigned and he then owned it, inasmuch as he not only said he had the note on Musgrave, hut also proposed to pay the proceeds, when collected, on his individual liabilities.

Conceding the presumption to be that a note sued on, offered in evidence at the trial, indorsed by the payee, was assigned before its maturity, for a valuable consideration, to the plaintiff in this case, such presumption is overcome by the proof of the facts mentioned. Holderman was examined as a witness for plaintiff, and when asked, on cross-examination, whether he ever sold or transferred the note to Kaley or any one else, was not permitted to answer, but an objection to the question as not proper cross-examination was sustained, and no attempt was made on behalf of plaintiff to show when the assignment to Kaley was in fact made, but the jury were left without evidence that shed light on the transaction other than that furnished by defendants, and were justified in finding from it, the assignment, if made at all, was not made to plaintiff until after the commencement of the suit, and hence he had not at that time a right of action against defendants. It would he superfluous to cite authorities in support of the proposition that a plaintiff must have a right of action against defendants at the time he commences suit, to entitle him to recover. The verdict of the jury was right, and was supported by the evidence. In the view we take of the case it is unnecessary to discuss or pass on the rulings of the court below objected to by appellant and assigned for error. The judgment of the County Court is affirmed.

Judgment affirmed.


author: Gbeeít, F. J.

text:
    Harrison Machine Works v. A. Coquillard.

      Actions—Money Had and Received—Agency—Note-Misapplication of Proceeds.

    1. Where one obtains money of another which it is inequitable or unjust for him to retain, the one thereto entitled may maintain an action for money had and received.
    2. Where the payee of a promissory note has placed it for collection in the hands of an agent, who has in turn placed it in the hands of a third person, who has made the collection and misapplied the proceeds, an action by the payee for money had and received lies against such third person.
    [Opinion filed January 4, 1888.]
    Appeal from the Circuit Court of St. Clair County; the Hon. B. H. Gamut, Judge, presiding.
    Messrs. Wilderman & Hamill, for appellant.
    It is a general rule that in order to maintain an action of assumpsit, as this is, upon a contract, there must be privity between the parties to the suit. Trumbull v. Campbell, 3 Gilman, 502; Hall et al. v. Carpen, 27 Ill. 386; Carpen v. Hall et al., 29 Ill. 512; Garnsey v. Rogers, 47 N. Y. 233 (7 Am. Rep. 440); Vrooman v. Turner, 69 N. Y. 280 (25 Am. Rep. 195).
    It is also a general rule that wherever the nature of the employment or agency is such that a personal trust is reposed in, or the j>ersonal skill of the employe or agent is engaged, the subject-matter of the employment, or the power, can not be delegated, and such this case was. I. & St. L. R. R. Co. v. Dawson, 3 Ill. App. 292; Crozier v. Reins, 4 Ill. App. 564; Morgan v. Roberts, 38 Ill. 65; Antrobus v. Sherman, 65 la. 230 (54 Am. Rep. 7); Smalley v. Greene, 52 la. 241 (35 Am. Rep. 267); White v. Davidson, 8 Md. 169 (63 Am. Dec. 699); Sayre v. Nichols, 7 Cal. 535 (68 Am. Dec. 280).

      From these propositions it results that appellant was not the agent of appellee in the matter out of which this suit arose, hut was the agent of the Ray & Filley Company only, and so would not be liable for any expense which appellant might have incurred, if it had not succeeded, and there was no communication, connection or privity between them, and so this action will not lie. Ewell’s Evans on Agency, top pages 341, 425, 426; Antrobus v. Sherman, 65 la. 230 (54 Am. Rep. 7); Smalley v. Greene, 52 la. 241 (35 Am. Rep. 269); Hoover v. Wise, assignee, 91 U. S. R. 308; Bradstreet v. Everson, 72 Pa. St. 124 (13 Am. Rep. 665).
    Messrs. Chas. P. Kwispel, for appellee.
    The case of The Ætna Ins. Co. v. The Alton City Bank, 25 Ill. 243, is directly in point. There the insurance company indorsed and delivered to the hank a bill of exchange for collection; the bank indorsed and transmitted the bill to Benoist & Go., of St. Louis; the money was lost tlirouglit fault of Benoist & Co.; the insurance company sued the Alton bank; the court held the bank not liable, but say: “If any liability lias been incurred to the plaintiff it is by the St. Louis house, who became their agents, and not by the defendant.”
    Where a sub-agent is employed by an agent to receive money for the principal, the principal may treat the sub-agent as bis agent, and sue him for the money recovered by him. Miller v. Farmers’ Bank, 30 Md. 392; Wicks v. Hatch, 62 N. Y. 535; Strong v. Stewart, 9 Heisk. 137; Osborn v. Rider, 62Wis. 235; Porter v. Peckham, 44 Cal. 204; Belleview v. Bank of U. S., 4 Wharf. 105; Dorchester Bank v. New England Bank, 1 Cush. 177; Warren Bank v. Suffolk Bank, 10 Cush. 582; East Haddam Bank v. Scovil, 12 Conn. 303; Bank, etc., v. Triplet, 1 Pet. 25.
    It is the well recognized doctrine that the action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff, which in equity and conscience he has no right to retain. When money has been thus received the law implies a promise to pay, notwithstanding there was no privity between the parties. Taylor v. Taylor, 20 Ill. 650; McLain v. Watkins, 43 Ill. 24.

      The receipt of money from an agent in payment of the agent’s indebtedness, knowing that it is the money of the principal, is not permitted. In such a ease the principal may sue -for and recover back such money. Rusk v. Newell, 25 Ill. 226; Trustees v. McCormick, 41 Ill. 323; Amidon v. Wheeler, 3 Hill, 137; Bostick v. Hardy, 30 Ga. 836; Greenwood v. Burns, 50 Md. 53; Warner v. Martin, 11 Howard, 209; Stewart v. Woodward, 50 Vt. 78; Dickerson v. Watson, 47 N. Y. 439; S. C., 7 Am. Rep. 455.
   Gbeeít, F. J.

This was assumpsit for money had and received, commenced by appellee before a Justice, where a judgment was recovered against appellant, from which an appeal was taken to the Circuit Court, where a trial by the court without a jury was had, resulting in a finding and judgment for appellee, to reverse which this appeal was taken.

It appears from the evidence that appellee had a note against H. & P. J. Cambrón, and in May, 1882, sent an affidavit to Bay & Filley Company, a corporation doing business in Burlington, Iowa, alleging he (Coquillard) was the owner of a note dated July 20, 1880, due December 1, 1881, bearing eight per cent, interest from date for $118.65, made by Henry and P. J. Cambrón; that said note was lost and after diligent search could not be found, and requested said Bay & Filley Company to collect said claim for him. It for. warded the affidavit to appellant with request to collect claim. The latter received it and then knew, through its treasurer, that Coquillard owned the claim, and was entitled to whatever money should be collected thereon. Appellant then sent affidavit to Lathrop & Company. That firm placed it in the hands of a Justice of the Peace, who collected from the makers of the note (or one of them), $113.25 net on said claim and paid over that amount to appellant November 6, 1882, on which date appellant, by its treasurer, reported said collection to the Bay & Filley Company, stating, “ presuming you have funds of ours in your hands, we have placed the $113.25 to your credit on machinery account.” On November -7, 1882, the Bay & Filley Company acknowledged receipt of this-letter and say, appellant can pass the net amount of the colleetion to credit of repair account. Before the suit was commenced, demand for the money so received by appellant was made by and also on behalf of Coquillard, and .payment refused; upon this state of facts appellant requested the -court below to hold the following proposition to be the law applicable to the case:

“ If'the court shall find from the evidence in this case’that the plaintiff sent the claim, out of which the money involved in this suit arose, to the Bay & Filley Company, of Burlington, Iowa, as his agent, to be by them collected from the persons owing the same, for him, and that the Bay & Filley Company sent said claim to the defendant as its agent, to be by the defendant collected from the persons so owing the same, and that the defendant had no communication with the plaintiff prior to the collection of said claim in relation thereto, then the law is that the defendant was the agent of the Bay & Filley Company in said transaction, and not the agent of the plaintiff, and as such agent of Bay & Filley Company the defendant was bound to account to the Bay & Filley Company, and is not bound to account to the plaintiff in reference thereto; that there is no'privity of contract, between the plaintiff and the defendant in reference to said matter, and the plaintiff can not recover in this action.” And the court properly, as we think, refused so to hold; the §113.25 received by appellant and in its hands at the time said demand for it was made, belonged to appellee when it was so received, and this fact was then known to appellant. Knowing this, its duty was to pay said money to Coquillard, or to the Bay & Filley Company, from whom it received the claim. It did neither, but wrongfully kept the money, credited the amount upon said individual account of the Bay & Filley Company without the knowledge, consent or authority of appellee, and refused to pay over the same to Coquillard when demand for it was made.

The law applicable to the facts in this case is with the appellee, and under it he had a right to recover. Where one person obtains the money of another which it is inequitable or unjust for him to retain, the person entitled to it may maintain an action for money had and received for its recovery, and it is not necessary there should be an express promise, as the law implies a promise. The test is, does the money injustice belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to plaintiff. These facts create a privity, and the law implies a promise to pay. Alderson v. Ennor, 45 Ill. 128; Allen v. Stenger, 74 Ill. 120; McLain v. Watkins, 43 Ill. 24. The case of Drovers National Bank v. O’Hare, 119 Ill. 646, is in point., and supports the view taken by us of this case. We are of opinion the finding and judgment of the Circuit Coyrt were right and the judgment is affirmed.

' Judgment affirmed.


author: G-been, F. J.

text:
    Manuel H. Boals v. Utten Nixon.

      Contracts—Parties—Action hy Third Person—Bond of Indemnity.— Statute of Frauds.

      1. A simple contract between two persons for the benefit of a third will support an action by such third person.
    2. Where a bond is given as an indemnity by one of the parties to the contract to the other, the person for whose benefit such contract is made is not required to bring suit on the bond.
    [Opinion filed January 4, 1888.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Wise & Davis, for appellant.
    Mr. John J. Bbenholt, for appellee.
   G-been, F. J.

Appellee brought suit against appellant before a Justice of the Peace to recover for his work and labor as a carpenter, done and performed on buildings in Alton, Illinois. A judgment was rendered in the Justice’s court against appellant, who thereupon appealed to the Circuit Court, where a trial was had by a jury, resulting in a verdict for appellee for §93, and the court having overruled defendant’s motion for a new trial, rendered judgment against him on the verdict, and this appeal is taken to reverse said judgment. The record discloses these facts: That John B. Gould began the erection of the buildings on which appellee worked, and when the houses were nearly completed, discovered he could not pay for the work done and material used in building them, and after unsuccessful efforts to sell the property, instructed his attorneys to dispose of it for the claims against the buildings. An arrangement to that effect was made by said attorneys with Boals, who agreed with Gould to take the property, and in consideration of the conveyance of it to him by Gould, agreed to pay and discharge certain c'aims for labor and materials furnished in the erection of said houses, and, among others, the said claims of Nixon, which was left by him with said attorneys and the amount of which, as claimed and presented by him (§93), was know to appellant at the time he made said agreement. Gould desiring an indemnifying bond to protect himself when he gave the deed, Boals executed to him such bond in the penal sum of §2,000, reciting in the condition, among other things, that said Boals had agreed to take the property for the claims against it for work and material furnished thereon, except claims for which orders have been given on, and accepted by Gould, and that there now remained due and payable a large sum of money to several persons (naming them), and among them naming appellee, for the material and labor furnished in the erection of buildings on said property, and that Gould and wife had, in pursuance of said agreement, by warranty deed conveyed said property to Boals. It is then provided if Boals shall pay and discharge all claims against said property for work and materials furnished in the erection of said buildings thereon (except the said excepted claims), and shall hold said Gould harmless against any and all of said claims due, the obligation to be void, etc. The execution and delivery of the deed and bond were simultaneous acts.

Appellee elected to affirm the agreement made by Gould with Boals for the payment of his claim for work, and had a right to avail himself of Boals’ promise to pay said claim, and to recover in this suit against appellant for a breach of said promise, notwithstanding the consideration for it moved from Gould, and the evidence, though conflicting, justified the jury in finding the amount of appellee’s claim to be §93, and that it accrued to him for work done on the Gould buildings. The evidence would also support the theory that the agreement between appellant and Gould was by parol and completed, so far as fixing its terms were concerned, before the execution of the bond, and upon such a contract this suit could be maintained. Where one person enters into a simple contract with another for the benefit of a third person, the third person may maintain an action for a breach of such contract and it is not within the Statute of Frauds. Brown v. Strait, 19 Ill. 88. And upon the theory that the agreement between Boals and Gould, for the benefit of Mixon, was embodied in the bond to Gould, which is the theory of appellant, appellee would not be compelled to bring suit upon the bond either in Ills own name or in the name of Gould for his use, to recover damages from Boals for the breach of said agreement. The bond was given as an indemnity and protection to Gould, who might have maintained an action on it if he had been compelled to pay his debt to Mixon, but a privity was established between the latter and Boals by the agreement of Boals with Gould, whether such agreement was by parol, or evidenced by said bond, and if appellee elected to affirm such agreement made for his benefit he could maintain action against appellant for a breach of it. Bristow v. Lane et al., 21 Ill. 194, and cases there cited; Snell v. Ives, 85 Ill. 279.

Appellee has made such election. His suit was brought, not upon the bond, but for a breach of said agreement, and he has established his right to recover. We perceive no error in the record requiring the reversal of the judgment of the Circuit Court, and it is affirmed.

Judgment affirmed.


author: Bailey, J.

text:
    First District
    —October Term, 1887.
    Julius Loescher et al. v. John Deisterberg.

      Sales—Failure to Deliver—Measure of Damages—Set-off—Conflict of Evidence —Question for Jury.

    1. The measure of damages for the breach of a contract to deliver personal property, is the difference between the contract price and -the market price at the time of the breach.
    2. Where the article can not be obtained in the market, the measure of damages is the actual loss sustained by the vendee. If he has sold the article purchased to another, his measure of damages is the difference between the agreed prices of purchase and re-sale.
    3. Where the evidence is conflicting, this court will not interfere with the verdict of the jury.
    [Opinion filed April 11, 1888.]
    Appeal from the Superior Court of Cook County; the Hon-Kirk Hawes, Judge, presiding.
    Messrs. Francis Lackner and B. M. Saunders, for appellants.
    Mr. S. P. Houthart, for appellee.
   Bailey, J.

This was a suit by attachment brought by Julius and Herman Loescher against John Deisterberg, to recover a balance of §524 due on an account. The attachment affidavit charged that the defendant had, within two years then last past, fraudulently conveyed or assigned his effects or a part thereof, and fraudulently concealed or disposed of his property, so as to hinder and delay his creditors, and was about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder or delay his creditors. The defendant filed pleas of the general issue and set-off, and also a plea traversing the attachment affidavit, and at the trial the jury found a verdict upon the attachment issue in favor of the defendant, and upon the other issues in favor of the plaintiffs, and assessed their damages at §274. Hpon this verdict the court, after overruling the plaintiffs’ motion for a new trial, gave judgment in favor of the plaintiffs for §274 and costs, and dissolved the attachment, and the plaintiffs bring the record to this court by appeal.

It is insisted that the verdict, so far as it relates to the attachment issue, is contrary to the preponderance of the evidence. There was some evidence given of certain admissions and acts of the defendant which, if unexplained, would have some tendency to show an intention and also an attempt on his part to secrete certain portions of his property from his creditors, but said evidence is, at best, but weak and inconclusive, and as it is directly disputed by the testimony of the defendant himself, we are not able to say that the jury were not justified in finding that issue for the defendant. The utmost that can be said is that the evidence was conflicting, and the jury having seen and heard the witnesses, were best able to judge as to their credibility and determine the facts in respect to which their testimony differed. As they have resolved the conflict in favor of the defendant we see no reason for disturbing their finding.

The plaintiffs’ account upon which the suit was brought was for goods and merchandise sold and delivered by them to the defendant, and as to the balance due upon said account there is little or no controversy. This balance was §524. The principal contest arises upon the defendant’s set-off. The set-off claimed is for damages arising from an alleged" breach by the plaintiffs of a contract by which they agreed to sell and deliver to the defendant, within a given time, certain commodities, at a stipulated price. The defendant was a manufacturer of leather, and was making use of a,.process which he had learned in Germany, by which skins taken from the rumps of horses and known to the trade as <l horse butts ” were manufactured into leather suitable for use in making uppers of shoes. The defendant’s plea of set-off alleges that,1 on the 5th day of October, 1884, the plaintiffs entered into a contract with the defendant, by which they sold to him 500 horse butts at §2.25 apiece, to be delivered on or before January 1, 1885, and to be paid for after the entire quantity had been delivered; that they failed to deliver to him said horse butts, and that the defendant thereby suffered damages by reason of being deprived of his gains and profits, in the sum of §900.

The evidence as to the contract alleged is conflicting, but there is sufficient evidence to sustain a finding that said contract was entered into substantially as alleged; that the plaintiffs delivered to the defendant on said contract 100 horse butts which were paid for at the time of their delivery, but neglected and refused.to deliver to him the remaining 400.

As bearing on the question of damages, the plaintiffs gave evidence tending to show that, at the time in question, horse butts were a commodity well known in the market and having, a fixed maiket value, and that they were easily obtainable, and were then worth in the market not to exceed §2.25 apiece. The defendant, on the other hand, gave evidence tending to show that there were no horse butts in the market, and that none could be obtained; that the defendant, after making his contract with the plaintiffs, sold various quantities of the leather to be manufactured from those purchased of the plaintiffs to his customers, the amount so sold being about 250 in all, the profits of such sales, after allowing for the expense of manufacturing the skins into leather, being about 100 per cent; that on the refusal of the plaintiffs to fill their contract, he endeavored to buy them in the market but failed to find any ? and even sent to Hew York for them with like result.

If the jury believed the defendant’s evidence and adopted his theory of the case—and from the nature of their verdict we must assume that they did—we can not say that the damages awarded by them to the defendant for the breach by tlio plaintiffs of their contract of sale were excessive. The rule applicable to sales of personal property is, that where the article is one that can be bought in the market, the proper measure of damages for the breach of the contract to deliver, is the difference between the contract price and the market price at the time of the breach. But where the vendee can not obtain the article purchased in the market this rule is not applicable, and resort must be had to other elements of value. Capen v De Steiger Glass Co., 105 Ill. 185; Tribune Co. v. Bradshaw, 18 Ill. App. 17. Where the article can not be obtained in the market or elsewhere, so that the purchaser can not supply himself with it from other sources, the measure of damages is the actual loss which he has sustained; and if he has made sale of the article purchased to another, and by reason of the failure of his vendor to deliver, he is prevented from filling his contract with his purchaser, his measure of damages is the difference between the price at which he had sold and the price which he had agreed to pay. France v. Gaudet, L. R., 6 Queen’s Bench, 199; McHose v. Fulmer, 73 Pa. St. 385; 1 Sutherland on Damages, 91.

The rule of damages here laid down was the one adojtted by the court below in the instructions to the jury. We think the instructions were substantially correct, and we find no material error in the rulings of the court in the course of the trial. The verdict, then, being sustained bv the evidence, we see no reason for disturbing the judgment. The judgment will be affirmed.

Judgment affirmed.


author: Moran P. J.

text:
    Frederika Schraeder v. Henry Schraeder.

      Husband and Wife—Separate Maintenance—Discretion.

    In action for separate maintenance, the chancellor has a large discretion, ■which is properly exercised in discouraging the continuation of a separation between husband and wife, where the cause of such separation is trivial.
    [Opinion filed April 11, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Cutting & Austin, for appellant.
    Messrs. Campbell & Custer, for appellee.
   Moran P. J.

This is an appeal from an' order dismissing a bill filed by appellant against appellee for separate maintenance. It appears that about six weeks after complainant was married to defendant she left him. They had quarreled more or less while they were living together, and she had threatened to leave, and finally did leave, he telling her to go.

The next day she went back accompanied by the minister and her father, and offered to return, to him and live with him again, but he said he did not want her. Shortly after, her sister tried to reconcile defendant to receive his wife and live with her, but he again refused. After the bill was filed he went and asked her to return to him and she refused to do so.

On the hearing he swore that he was willing to live with her if she would treat him right and not quarrel with him, and that if she had come back alone when she came with witnesses, and offered to live with him, he would have received her. Her father’s house at which she stopped was only eighty rods from her husband’s.

She said in answer to the court, that she could not live with her husband again. There does not seem to have been any substantial cause of quarrel between complainant and her husband when she left him, though it is apparent that they were not living happily. For the separation both were to blame.

There seems to be no reason why they should not be reconciled and live together as husband and wife. She did not get a vested right to separate maintenance simply because her husband refused to receive her when she went back, and under the circumstances we think she ought to have gone back when he requested her after the bill was hied. The policy of the law is to maintain the marriage relation after it is entered upon and not to allow separations for trivial causes, and we think the court below was right in dismissing the bill and leaving complainant to return to her husband in a wifely manner, and in good faith make the attempt to live with him.

If he should ill-treat her, or if, upon an unequivocal attempt to return to him, he shall repulse her or refuse to cohabit with her as her husband, the decree in this case will not bar her remedy against him.

A large discretion is lodged in the chancellor in separate maintenance cases, and it is properly exercised in discouraging rather than encouraging the permanency of separation between husband and wife, and under the circumstances appearing in the record, we think the discretion was wisely exercised in this case.

The judgment will therefore be affirmed.

Deoree affirmed.


text:
    Leopold Schlesinger et al. v. Bennett B. Nunan.

      Practice—Continuance—Absence of Party.

    Where a party who is a material witness in his own behalf leaves home, even on account of his health, when his suit is liable to be called for trial, his absence is insufficient as ground for a continuance.

      [Opinion filed April 11, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Cary, Judge, presiding.
    Messrs. Kraus, Mayer & Stein, for appellants.
    Mr. Samuel Chandler, for appellee.
   Bailey, J.

This suit was brought by Bennett B. Hunan against Leopold Schlesinger and David Mayer, before a Justice of the Peace, where a judgment was rendered in favor of the plaintiff for $10.10 and costs. The plaintiff appealed to the Superior Court, where a trial was had before the court, a jury being waived, resulting in a judgment in. favor of the plaintiff for $129.41 and costs, and the defendants have appealed to this court.

The assignment of error upon which the defendants chiefly rely is the one which calls in question the decision of the court denying the defendants’ motion for a continuance. It appears that on April 21, 1887, a stipulation was entered into by the parties whereby a jury was waived and the cause submitted to the court to be tried upon five days notice by either party. On the 13th day of June, 1887, said cause being on the trial calendar of the Superior Court, a motion was made on behalf of the defendants for a continuance, on the ground of the absence of said David Mayer, one of the defendants,' who was a material witness for the defense. The affidavit read in support of the motion satisfactorily establishes the materiality of Mayer’s testimony, and that the defendants had no other witness by whom the same facts could be proved.

By way of showing that due diligence had been used to obtain the testimony of said witness, or want of time to obtain it, said affidavit states that said David Mayer, before any attempt was made to have said cause tried, was suffering from sickness and nervous depression, and that on that account, on or about June 8, 1887, and before said cause was attempted to be tried or placed on the calendar for trial, he sailed for Europe, un medical advice, for a temporary stay, not exceeding four weeks, and that he was then on such voyage and still sick as aforesaid; that said David Mayer did not and could not know that said cause would be reached for trial at the June term of said court at the time he left, and that the defendants expected to procure the testimony of said witness by the next term of court at which said cause would be reached.

We are of the opinion that the affidavit fails to show the use of such diligence to obtain the testimony of the absent witness as the law requires. The witness was one of the defendants, and must be presumed to have been fully aware, at the time he left on his trip to Europe, that the suit was pending against him, and that it was liable to be called up for trial at any time on five days notice. It was, therefore, negligence for him to go away without arrangements for a postponement of the trial until his return, or without leaving his testimony behind him in the form of a deposition. He had no right, merely because the plaintiff had given no intimation of an intention to notice the cause for trial during his absence, to assume that he would not do so. Ordinary diligence required him, before going away to be absent for a number of weeks, to provide against the contingency of the plaintiff’s electing to proceed to a trial before his return.

Where the absent witness is the party himself, very different rules obtain from those which govern cases where the witness is one who is in no way interested in the suit, and whose attendance can be compelled only by the ordinary proc. ess of subpoena. A party who is a material witness in his own behalf must have his testimony ready for use at the trial, unless prevented from so doing by some obstacle which by the exercise of reasonable diligence he can not overcome, and the obstacle should not be one which he has created by his own voluntary act. If he allows considerations of business or pleasure or even regard for his own health to call him away at a time when his suit is liable to be called for trial and he thereby loses the benefit of his own testimony, he must, ordinarily, suffer the consequences. We are of the opinion that no sufficient ground for a continuance -was disclosed by the affidavit, and that there was no error in denying the defendants’ motion in that behalf.

JSTo questions of law were raised at the trial, and the evidence, though somewhat conflicting, is sufficient to sustain the finding and judgment. There is, so far as we are able to see, no error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    Dankmar Adler et al. v. The World’s Pastime Exposition Company et al.

      Mechanic's Lien—Express Contract—Statutory Limitation—Services of Architect.

    A petition fora mechanic’s lien, when based upon an express con. tract, will not be sustained, unless the contract alleged specifics a time for the completion of the work or furnishing of materials within the time limited by the statute.
    [Opinion filed April 11, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Moses & Hewman, for appellants.
    Ho appearance for appellees,
   Bailey, J.

This was a petition for a mechanic’s lien. The contract alleged in the petition was in writing, and was executed April 29, 1886. By it the petitioners, who were architects and superintendents in the erection of buildings, agreed to furnish the drawings and specifications, superintend the erection, and audit and make settlement of all accounts in the erection of certain buildings, which the World’s Pastime Exposition Company -was then about to erect on certain grounds situate in Hyde Park, Illinois, and also to act as supervising architects in the general arrangement and improvement of said grounds and accessories during the summer of 1886, and for said services they were to be paid the sum of §5,000, of which §3,000 was to be paid in cash, viz., §1,500 on the 1st day of-June, 1886, and §1,500 upon the completion of the buildings and the settlement of all contracts, and the remaining §2,000 was to be paid in full-paid shares of the capital stock of said company, for which certificates were to be delivered to the petitioners on or after July 1, 1886, at the petitioners’ option. The petition alleges a complete performance of said contract by the petitioners prior to August 1, 1886, and that said company liad paid them only §1,500, leaving §3,500 duo and unpaid. A demurrer to the petition was sustained by the court below, and the petitioners having elected to abide by their petition, a decree was entered dismissing the petition at the costs of the petitioners.

The petition was clearly insufficient in failing to show that, by the terms of the contract, the time for the completion of the work was not beyond three years from the commencement thereof. The third section of the statute in relation to mechanic’s liens provides, that when the contract is expressed, no lien shall be created under said statute if the time stipulated for the completion of the work or the furnishing materials is beyond three years from the commencement thereof, and the rule has therefore become well established that a petition for a mechanic’s lien will not be sustained where it is based upon an express contract, uffiess the contract alleged specifies a time for the completion of the work or the furnishing of materials within the time limited by the statute. Cook v. Vreeland, 21 Ill. 431; Cook v. Heald, 21 Ill. 425; Cook v. Rofinot, 21 Ill. 437; Senior v. Brebnor, 22 Ill. 252; McClurken v. Logan, 25 Ill. 79; Phillips v. Stone, 25 Ill. 77; Scott v. Keeling, 25 Ill. 358; Coburn v. Tyler, 41 Ill. 354; Fish v. Stubbings, 65 Ill 492; Powell v. Webber, 79 Ill. 134; Beasley v. Webster, 64 Ill. 458; Berlanger v. Hersey, 90 Ill. 70; Austin v. Wohler, 5 Ill. App. 300.

The contract, which is set out in the petition in extenso, fixes no time within which the labor stipulated for was to be performed, except that the services as supervising architects in the general arrangement and improvement of the defendant’s grounds and accessories, were limited to the summer of 1886. As to all the other labor and services no time of performance is fixed, and it is doubtful, to say the least, whether the services, as to which the time of performance is fixed, are of such a nature as would entitle the petitioners to a lien.

If it be said that the contract is partly expressed and partly . implied, so as to fall within the doctrine laid down by this court in Austin v. Wohler, 5 Ill. App. 800, the answer is that the petition does not attempt to state a case under the statute in relation to contracts partly expressed and partly implied. The present case, so far as this question is concerned, must be governed by Berlanger v. Hersey, 90 Ill. 70, where the same suggestion was met by the answer that no such case was made by the petition.

We are of the opinion that the demurrer to the petition was properly sustained, and the decree dismissing it for want of equity will therefore he affirmed.

Decree affirmed.