text:
    The Callender Insulating and Waterproofing Company v. Sheridan S. Badger.

      Sales—Warranty, Express or Implied—Instructions—Damages—Evidence—New Trial—Surprise.

    1. In an action to recover the price of wire manufactured and sold for a special use, in order to show that it did not serve the purpose desired it must appear that the trial to which it was subjected was a fair one.
    2. In the case presented, the contest being as to whether certain wire for electrical purposes was properly laid and not damaged .by any mechanical means, or was inherently defective, this court declines to interfere with the verdict for the defendant upon conflicting evidence.
    3. The court below properly modified certain instructions asked by the plaintiff, so as to make the quality of the wire an independent question.

      4. The appellant can not complain of an instruction given for appellee which is in effect the s ime as one asked by himself.
    5. The measure of damages is the sum paid by the defendant for the goods if found to be of no value.
    6. The court below properly denied a motion for a new trial on the ground of surprise, based upon an insufficient affidavit touching the absence from the country of a party in interest and the failure to take a nonsuit.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant.
    The question of mechanical injury should have been left with the jury.
    Conditions precedent must be strictly performed. Whether the article sold would have answered the warranty if the conditions precedent had been performed, is not proper to be left to the jury. Byers v. Chapin, 28 Ohio St. 300; Barney v. Giles, 120 Ill. 154; People v. Glann, 80 Ill. 232; Exhaust V. Co. v. C., M. & St. P. R. Co., 28 N. W. Rep. 343; Nichols v. Hail, 4 Neb. 210.
    Anew trial should have been granted on the ground of surprise. Goldstein v. Lowther, 81 Ill. 399.
    Messrs. Gregory, Booth & Harlan, for appellee.
    The case proceeded in the court below upon the theory that there was a sale with a collateral contract of express warranty. Benjamin observes (2 Sales, Section 929): “A warranty in a sale of goods is not one of the essential elements of the contract, for a sale is none the less complete and perfect in the absence of a warranty. But it is a collateral undertaking, forming part of the contract by the agreement of the parties, expressed or implied.” There was in this ' case originally not strictly a sale, but an executory contract entered into, by which the appellant agreed to furnish goods of its own manufacture to the appellee, which should be delivered some time in the future. The use which was intended to be made of the cable covered by this contract was well known to the appellant at the time the contract was made, and in the absence of expressed warranty, the law would imply a warranty that the cable was reasonably fit for the use for which it was manufactured, and to which the appellee intended to put it. 2 Benjamin, Sec. 988.
    This cable purported to be waterproofed and insulated, as appears by the evidence, and it might be, that, being sold by that description, this case would fall within the principle clearly stated and accurately applied in the case of Shields v. Reibe, 9 Ill. App. That principle is there stated thus: “ When the contract of sale is executory and the vendor agrees to sell an article by a particular description, as to the kind and quality, it is a condition precedent to his right to recover of the buyer the price, that the thing which he offers to deliver, or which he has delivered, should answer such description.” And therefore this court held that in such a case if the goods so sold were in fact worthless, and seasonable notice thereof had been given by the buyer to the seller, he might recover back the price paid, in an action for money had and received. The same is held by the Supreme Court.. Doane v. Dunham, 65 Ill. 512.
    The case was tried on the part of the appellee on the theory that the cable was sold under a warranty that it was so insulated and prepared as to be fit for the purpose of transmitting an electric current to be employed in running electric lights, if laid properly underground. It is apparent that this does not involve any claim that the cable would work perfectly; nor anything more than what might have been implied by law from the relations of the parties..
    The question as to whether there was a warranty, and what its terms were, may be considered fairly as eliminated from this controversy, and it may be assumed that it was a fact not disputed at the trial, nor contradicted in any way by the evidence, that appellant warranted this cable fit for the purposes for which it was bought, and for which it purported to be manufactured. It is not necessary that any particular form of words should be employed in order to constitute a warranty, nor that any formal instrument should be executed to express such a contract. Wheeler v. Reed, 36 Ill. 81; Thorne v. McVeagh, 75 Ill. 81; Robinson v. Harvey, 82 Ill. 58.
    These authorities establish that where a representation is made by a seller for the purpose of inducing a sale, which is intended to be acted upon by the buyer, which statement is an affirmation as to the quality of the thing sold for the purpose of assuring the buyer of the truth of the fact affirmed, and it is so received and relied on by the buyer, then there is a warranty.
   Gary, J.

This is an action by the appellants to recover the price of a large quantity of wire, prepared for conducting electricity, sold by them to the appellee. The defense was that the wire would not serve the purpose for which it was prepared and sold, the appellants being manufacturers of it, and that therefore, either under an express warranty, which he claimed, or a warranty implied by law, the appellee was not bound to pay for it, and might, under his pleas of set-off, recover back what he had paid on account of it. It seems to make no difference whether the defense is based upon a warranty of one kind or the other, as in legal effect they are the same. The evidence of what took place between the parties is partly by letters, and partly testimony as to conversations, but the sum of the whole is well expressed by the appellants: “There should be no dispute about the terms of this contract. The Callender Company guarantee that the wire is in good condition, and, if properly laid and not damaged by any mechanical means, is quite suitable for your work in every way.” This is not the expression of a condition introduced by the word “ if,” but a description of the character or quality of the wire, and of the purpose it would serve. The vendee of an article manufactured and sold for a special use must properly apply it to that use, if he would claim that when applied, it did not serve. There could be no proof that upon trial it did not serve that use, unless it was shown that the trial was a fair one.

The evidence makes it clear that in the hands of the appellee the wire did not work. The whole contest rvas whether it was “properly laid and not damaged by any mechanical means,” or was inherently defective. Upon that question there was a great deal of evidence before the jury. The use of electricity to produce light is a branch of science upon which the. common experience of generally intelligent men gives them but little aid in appreciating the value or weight of testimony upon the subject. With less probability of not going wrong than with reference to matters of more common knowledge, can a court say that the verdict of a jury, upon conilicting evidence, as to the fitness of electrical apparatus, should be set aside. The verdict of the jury must be taken as conclusive upon the facts. The whole story of all the intercourse of the parties, and of the manner of placing, and of the working the wire when placed, was properly admitted in the evidence, and there are no errors in the action of the court upon questions of evidence.

It necessarily happens that in a long trial minor irregularities will occur. There will be lack of mathematical precision in the use of language, but nothing injurious in this regard appears in this record.

The only complaint in appellants’ brief, upon the instructions, is that the court erred in modifying them. The appellants asked this:

“If the jury shall find, from the evidence, that the plaintiff sold to the defendant an amount of wire, insulated and waterproofed, for laying underground, with a conditional guaranty of the good working thereof, on the condition that it should be laid under the supervision of the plaintiff, or its servants under the plaintiff’s directions, or on condition that the wire should be carefully and properly laid, without mechanical injury; and if the jury shall further find from the evidence (that the condition on which the guaranty was given was not performed or accepted by the defendant, through no fault of the plaintiff, then the plaintiff is relieved from said guaranty).”

The court struck out the part in parenthesis and added the following: “That the cable was fairly equal to conditional warranty, and that the plaintiff did not lay the wire, or that the wire was improperly and defectively laid by defendant, through no fault of the plaintiff, then the plaintiff can not be held on the guaranty.”

Another, the parts in italics being added by the court, is as follows: ■

“The jury are instructed that if they shall find from the evidence that the defendant undertook to lay the wire sold by plaintiff properly and carefully, and without mechanical injury, and that that was a condition on which the plaintiff undertook to guarantee the good working of said wire, then it is incumbent on the defendant to show, by preponderance of the evidence, that the wire was carefully and properly laid, without mechanical injury; otherwise the defendant can not maintain his action, or recover damages in this action, unless the jury find, from the evidence, that the wire was not fairly equal to the warranty, if any, even if properly laid.”

These instructions proceeded upon the theory that the character or quality of the wire itself was not a question in the case, unless it was properly laid, and without mechanical injury, and the modifications made that character or quality an independent question. Under the modifications the jury were required, in effect, to find for the appellee, if the wire was of such character or quality that no matter how it was laid it would not work.

The instructions were not consistent upon this question. The first and second for appellants, were :

“The jury are instructed that in order to establish any defense to the plaintiff’s claim in this action, the defendant must prove, with respect to the wire laid by him, not only that the wire was properly laid, but also that its failure to work was due to defects in the wire or its insulation.
“The jury are instructed that in order to establish, as a defense in this suit, the fact that the claim upon which this suit is brought was for certain wire and other goods furnished by the plaintiff to the defendant for the purpose of conducting electricity for illuminating and other purposes, but that said wire was not properly made, or was not fit for the purpose for which it was sold, the defendant must establish those facts by a preponderance of the evidence.”

A verdict for the appellants, under that first instruction, could not have been sustained.

As before stated, the laying of the wire was not a condition, though if the jury found its failure to woik was attributable to the manner in which it was laid or to mechanical injuries to it, they would not then have been justified in finding a breach of the warranty because it did not work.

The second instruction put the case to the jury correctly. If they, in finding for the appellee, had specially stated that they did so because the wire was not fit for the purpose for which it was sold,” the appellants could not have complained of the verdict as based upon a wrong principle, having themselves presented it to the jury as a guide.

The modifications of the court to the other instructions were, as against the appellants, in substance, right, for the double reason that they were correct in point of law and also followed the rule that they presented.

The damages are what appellee has paid for wire that the verdict decided was useless. If appellee was entitled to anything, it was not less than he had paid to the appellants.

The motion for a new trial on the ground of surprise, based upon the affidavit of Callender, was properly denied, not only because that affidavit is too vague and uncertain as to why he was not present at the trial, but also because at the trial the appellants did not offer to take a non-suit. At common law a plaintiff would not be permitted to take the chance of a verdict, and if lost, have a new trial on the ground of surprise, because he had it in his power to suffer a non-suit and sue again. 3 Gra. & W. N. T. 895. And without offering to dismiss his suit, he can not tell whether he will have the same privilege or not under Sec. 30 of thepraciice act, even though a plea of set-off be filed.

Judgment affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    The Laflin and Rand Powder Company v. Mary Tearney.

      negligence—Explosion of Gunpowder—Pleading.
    1. In an action to recover for injuries to property occasioned by the explosion of gunpowder, the declaration is sufficient if it avers the dangerous character of the articles kept, and the injury to the plaintiff from such keeping, without averring negligence on the part of defendant, or what was done by him that constituted the nuisance.
    2. It is no answer to a claim for compensation for a wrong done that the plaintiff has consented to conduct by others similar to that of the defendant which caused the injury.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Mills & Ingham and E. F. Runyan, for appellant.
    Mr. Wm. H. Barnum, for appellee.
   Gary, J.

The gist of the appellee’s declaration is that the appellants kept upon their premises a large amount of gunpowder, dynamite and gun-cotton, which were highly explosive substances; that they exploded, and property of the appellee was destroyed. The second count adds the averment of an ordinance violated by the so keeping of gunpowder, etc.

The appellants moved, in arrest of judgment, that the declaration does not aver any negligence on their part, or that what appellants did constituted a nuisance. It may be questionable, under the later extension of the rule that error that does no harm is not a cause for reversal, whether, even if the declaration were merely defective in setting out the cause of acthn, but under it the same evidence was necessary and given as would have been required if the omitted averment had been in, the objections made, if well founded, would be of any avail. Atkins v. Byrnes, 71 Ill. 326.

It is not a case of stating facts which of themselves, as stated, show that there can be no cause of action, like suing upon a statutory liability, which, by repeal of the law before the acts were performed out of which the liability was supposed to arise, had ceased to exist. Kipp v. Lichtenstein, 79 Ill. 358. The declaration is, however, sufficient. It avers the dangerous character of the articles kept, which put the peril of the consequences upon the keeper; and it avers the injury to the plaintiff from the keeping. And if the jury found these averments true, then they found a private, if not a public, nuisance, the author of which is responsible to the sufferer by it. Wood on Nuisances, Sec. 140.

It is conceded that the appellants did keep the gunpowder, etc., as alleged; that the explosion was caused by lightning, and that from the explosion the plaintiff sustained all the damages the jury have awarded her. The principle that fixes responsibility upon the keeper of dangerous animals is applicable here. If the animals are ferocious by nature, the keeper is liable, without any averment of negligence or scienter. 1 Thomp. Neg. 173, etseq. Therefore it is not necessary to consider the many questions raised upon instructions, except those relating to the application of the maxim, volenti non fit injuria.

There were several powder magazines belonging to different proprietors in the vicinity at the time of the explosion. There was one on property demised by the plaintiff and her husband for that purpose. lie was interested in the powder business; and it was fairly inferable from the evidence that he was there, and acquired property there, and resided there, and, she with him, because the powder business in which he w-as interested was there.

By appropriate instructions, the appellants sought to have the jury told that these facts, coupled with the further facts that the appellants were there, with their magazine, before the plaintiff and her husband; that at different times she had permitted other companies to have magazines upon her property; that, in effect, it was, by common consent, the powder district for the powder business of Chicago, were a bar to her recovery. This was refused, and that refusal is assigned for error. There was no evidence tending to show any relations at any time between the appellant and the appellee or her husband. The instructions are based on the tu quoque argument.

ISTo authority is cited to support them. It is no answer to the claim of ap]3ellee for compensation for wrong done her by appellants, that she had consented to conduct by others similar to that of the appellants.

There is no error and the judgment is affirmed.

Judgment affirmed.


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    Henry W. Leman et al. v. William Best et al.

      Trover—Trade Fixtures—•Successive Occupancies—Evidence—Instructions—Conversion. •
    1. In order that the fixtures of a cigar stand in a hotel may retain the character of removable trade fixtures in case of successive occupancies of the same, as well as of the building itself, it is necessary, upon the expiration of each tenancy of the house, that such right be duly asserted.
    2. In an action of trover brought to recover trade fixtures, in the absence of evidence going to show title in the plaintiff, an instruction based upon a presumption of title should not be given.
    3. An instruction is likewise erroneous which requires the jury to find for the plaintiff upon evidence of a conversation without finding the fact of conversation. Demand and refusal are not a conversion, but evidence from which it may be found.
    4. An instruction which tells the jury that the tenant has the right to remove his fixtures at the expiration of his lease, is too indefinite.
    5. Trover will not lie for fixtures while still annexed.
    6. Where the evidence is indefinite and unsatisfactory, the instructions must be accurate and definite.
    [Opinion filed February 13, 1889.]

      Appeal from the County Court of Cook County; the Hon. ¡Richard Prenderoast, Judge, presiding.
    Messrs. Wilson & Zook, for appellants.
    Messrs. Roberts, Hutchinson & Thomas, for appellees.
   Gary, J.

This is an action of trover by the appellees against the appellants, for the fixtures used in the Sherman House, in Chicago, in connection with the cigar stands there.

The evidence is conflicting, whether they were originally put in by the first lessee of the house, or by a sub-tenant of the cigar stands holding under that first lessee. The appellees claimed title only under that sub-tenant, so that if they were put in by the first lessee there was no pretense for the action. The tenancy of the house had changed several times by expiration of terms and new demises since the fixtures were first put in, as had also the sub-tenancies of the cigar stands.

The evidence, as presented in the record, is quite unsatisfactory, hoth as to the extent or the manner of the annexation of the fixtures to the realty, and whether, as the leases of the house and the sub-tenancies of the cigar stands expired, any provision was made for the continuance of the right (if such right existed) of the sub-tenants to remove the fixtures .under new leases of the house and sub-leases of the cigar stands, so that they should retain their former character (if that was their character) of removable fixtures, and not fall in as part of the inheritance.

In this condition of the case it was important that the instructions should have been accurate and definite. On behalf of the appellees the jury were told:

“ The court instructs the jury that if they believe, from the evidence, that plaintiffs were the owners of the property in question, and entitled to the possession thereof, before and at the time of the commencement of this suit, and that while they were so entitled to such possession, and before the commencement of this suit, they demanded of the defendants the property, and that the defendants then had the property in their possession and neglected and refused to surrender the same to the jilaintiffs upon such demand, this would be evidence of the conversion of the property by the defendants, and in such case the jury should find for the plaintiffs.”
The court instructs the jury that, as between landlord and tenant, articles or structures built or placed in rented premises by the tenant for the purpose of being used in carrying on the tenant’s trade or business, are trade fixtures and do not become part of the real estate, even though they may he fastened to the building, if they can he removed without material injury to the building; and the tenant owns and has a right to remove such articles and structures at the expiration of his lease.”

That first instruction leaves to the jury a very difficult branch of the law. For a dozen years the house, as well as the cigar stands, had been the subject of frequent changes of occupants. If the fixtures were so annexed that the removal of them would not injure the freehold; if they were put in by the original tenant of the cigar stands for the purpose of conducting his trade; if the property in the fixtures was, at the expiration of each tenancy of the cigar st mds, by agreement between the lessee of the house and the tenant of the cigar stands, reserved to the latter; if, at the expiration of each demise of the house itself, the landlord of the tenant of the house assented to this continuance of the property in the fixtures in the tenants or sub-tenant; if that property, by successive transfers, had come to ajipelleos; and if they, while still in possession as sub-tenants, undertook to remove the fixtures, and were prevented by their own or the superior landlord, then, and not without the concurrence of all these elements, were “ the plaintiffs the owners of the property in question.”

The authorities upon this subject of fixtures are so numerous, and so easily accessible in the text-books, that it would be pedantic to cite cases. The necessity of the assent of the superior landlord is a logical consequence of the principle that a tenant can not confer a right that he does not himself enjoy. Taylor L. & T., Secs. 111, 112, 8th Ed.; Smith v. Moore, 26 Ill. 392; Ogden v. Stock, 34 Ill. 522; McIver v. Esterbrook, 134 Mass. 550.

Until there was evidence tending to prove the several elements by which the ownership of the fixtures would be in the appellees, they had no right to require the court to leave that question to the jury. Martin v. Chambers, 84 Ill. 579; Phillips v. Dickerson, 85 Ill. 11; Hinsdale v. Armstrong, 6 Ill. App. 315.

That instruction is also wrong in directing the jury to find for the plaintiffs upon evidence of a conversion, without finding the fact of conversion. Demand and refusal are not a conversion, but evidence of it, from which the jury may, or may not, depending upon circumstances, find the fact itself. Upon the evidence, the jury might have found that the refusal was not of such a character as to be a conversion. Ingalls v. Buckley, 13 Ill. 315; S. C., 15 Ill. 224; Kime v. Dale, 14 Ill. App. 308; Race v. Chandler, 15 Ill. App. 533; Hanchett v. Williams, 24 Ill. App. 56.

The last instruction is too indefinite in telling the jury that the tenant has the right to remove his fixtures at the expiration of his lease. They would be very apt to understand from that, that the exercise of his right was not confined to the time while he was still in possession as tenant.

If the appellees have any right of action, it is special Trover will not lie for fixtures while still annexed. Wood. L. & T., Sec. 532; Guthrie v. Janes, 108 Mass. 191; Darrah v. Baird, 101 Pa. St. 265; Selwin’s Nisi Prius, 1366.

The judgment of the County Court is reversed and the cause remanded for further proceedings, not inconsistent with this opinion.

Reversed and remanded.


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    Charles B. Phillips v. E. A. Sherburne.

      Attorney and Client—Assignment—Discharge.

    Upon an intervening petition by an attorney to reach a fund in court, in order to secure fees claimed to be due him, it is held: That the evidence sustains the view that the petitioner was discharged from the service of the appellant; and that such discharge did not take away the securitj’, in the form of an assignment, for his fees.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. John Gibbons, for appellant.
    Mr. E. A. Sherburne, in person.
   Gary, J.

This is another of the cases in which intervening petitioners have been allowed claims against a fund in court, paid in by the commissioners of the South Park for the use of appellant.

It is conceded that the only question in it not decided in other cases, is upon the withdrawal by the appellee from the prosecution and defense of the eases of the appellant, the claim being for attorney fees. Upon the evidence, it was a question whether that was a voluntary withdrawal or an acceptance of a previous discharge, with a preponderance of the testimony in favor of the latter view. The appellant had assigned $3,000 of the fund to the appellee to secure his fees, and could not take away that security by discharging him.

The case of Morgan v. Roberts, 38 Ill. 65, is not parallel.

Decree affirmed.


text:
    The Detroit Stove Works v. Peter Koch et al.

      Creditor's Bill—Amendment—Evidence—Attorney’s Fees—Sec. 9, Act of 1872.

    1. Upon a creditor’s bill containing special interrogatories to a judgment debtor, as to judgments confessed by him, there being no proof of the allegations of the bill upon which relief could be given, and no allegations therein to which matters in evidence which might otherwise be considered could in any manner relate, this court declines to inferiere with the decree in behalf of the defendant.
    2. Proofs without allegations are as unavailing as allegations without proofs.
    [Opinion filed March 13, 1889.]
    ’ Appeal from the Circuit Court of Cook County.
    Messrs. J. D. McGuern and D. Blackman, for appellant.
    We claim that, as to the attorney fees, $150, such judgments are fraudulent against us, and that the court should have decreed that the defendants should pay to the receiver such fees. Campbell v. Goddard, 117 Ill. 251; Hulse v. Mershon, 25 Ill. App. 292; S. C., 125 Ill. 52.
    We claim these three judgments are void, because entered in fact by the debtor, Koch, and because, being taken knowingly and intentionally for too much, and not for a debt bona fide due,, they are void by the statute of frauds as to creditors who properly assail them. Mount v. Scholes, 120 Ill. 394 ; Rogers v. Palmer, 102 U. S. 268 ; Whiting v. Johnson, 11 Ser. & Rawle, 328; Wilder v. Fonda, 4 Wend. 100 ; Hale v. Chandler, 3 Mich. 531; Edson v. Cummings, 52 Mich. 52.
    This point is well stated in Brandt v. Henderson, 3 Philadelphia, 205, per Hare, J.; for an insolvent debtor is a trustee of his property for his creditors. Candee v. Lord, 2 N. Y. 274.

      Messrs. Weigley, Bulkley & Gray, for appellees.
    The rule is elementary that in chancery every material fact essential to the complainant’s title to maintain the bill and obtain the relief must be stated in the bill, otherwise the defect will be fatal. There can be no relief beyond the specific and material allegations in the bill. Story’s Eq. Pl. 257; Burlock v. Cook, 20 Ill. App. 156; Beach v. Shaw, 57 Ill. 17; City of E. St. Louis v. Millard, 14 Ill. App. 483; Helm v. Cantrell, 59 Ill. 524.
    In the latter case, Justice McAllister, on page 529, says that “every fact essential to the complainant’s title to maintain the bill and to obtain the relief must be stated in the bill, otherwise the defect will be fatal; for no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree seewndum allegata et probata?

   Gary, J.

This was an ordinary judgment creditor’s bill, under Sec. 49 of the chancery act of 1872, filed by appellants, and contained special interrogatories to the appellee, Peter Koch, who is a judgment debtor, as to judgments confessed by him, but the bill contained no allegations with respect to, and made no mention even, except in such interrogatories, of the judgments.

In evidence it does appear that the judgments probably might be avoided, as a shift or artifice under the forms of law, to defeat the operation of the voluntary assignment act by effecting an unequal distribution of his estate among preferred creditors. Preston v. Spaulding, 120 Ill. 208; White v. Cotzhausen, 129 Ill. 329.

Also that the fees of attorneys included in the judgments are as objectionable as in the case of Hulse v. Mershon, 125 Ill. 52.

But no such title to relief is set up in the bill. It does not allege that Koch has made fraudulent conveyances of property to the other defendants in secret trust, etc.

Of the allegations of the bill on which relief could be given there is no proof, and of the matters in evidence which might avail the appellants there are no allegations in the bill. The appellants made no application to amend their bill “so" as to fit the case shown by the evidence.” Gordon v. Reynolds, 114 Ill. 118.

The principle announced in Morgan v. Smith, 11 Ill. 194, that “ a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made by the evidence,” has been so often since repeated that it would be a vain show to multiply references to cases. “Proofs without allegations are just as unavailing as allegations without proofs.” Bremer v. Canal Co., 123 Ill. 104.

The decree of the Circuit Court dismissing the bill is affirmed.

Decree affirmed.


text:
    John A. Burlingame v. Walter J. Horne.

      Bailm en is—Horses—ATeg ligen ee—Action, for Dam ages.

    The burden is on the bailee of an animal received in good and returned in bad condition, to account for the damage.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Messrs. Cutting, Austin & Higgins, for appellant.
    The injury complained of is the breeding of one of Dr. Horne’s mares to a stallion, while she was in Burlingame’s care. It is conceded by all parties that Burlingame was a bailee for hire, and that the transaction entered into at the request of Horne was for the mutual benefit of the parties. We presume that the measure of Burlingame’s duty in the premises will be conceded to be that of an agister, as defined by the courts of Illinois. In the case of Umlauf v. Bassett, 38 Ill. 96, where plaintiff sought to recover the value of a mare and colt which escaped from defendant’s pasture, the court says: “ Agisters of cattle are only bound to the exercise of ordinary • care, and the record shows’" no want of this on the part of Bassett.” In the case of Halty v. Markel, 44 Ill. 225, the court says, in speaking of a case where damages are sought for the death of a colt, alleged to have been killed through the negligence of the agister: “ Under the contract of bailment, appellant -was bound to exercise reasonable care and diligence for the safety of the colt. Story in his treatise on Bailment, Sec. 443, says, it has been decided that agisters of cattle are within the general rule. They do not insure the safety of the cattle agisted, but they are merely responsible for ordinary negligence. That it will be such negligence if an agister or his servants leave open the gates of his ,fields, and the cattle, in consequence of such neglect, stray away and are stolen, and he will be responsible for the loss. This, then, imposed upon appellant the duty of exercising ordinary care, by himself and his servants. If he has failed in this he is liable; if not, then the loss must fall upon appellee.”
    It is not contended that there was any contract for extraordinary care, although the words “first class” and “excellent” are used by Dr. Horne in detailing conversations with Burlingame. Horne gave directions as to the manner in which the mares were to be treated, and in no respect were his instructions violated.
    If special or extraordinary care was desired it should have been contracted for, and any habits or propensities of the animals against which he desired to guard should have been explained to Burlingame. A case exactly in point is Mansfield v. Cole, 61 Ill. 191, where the court says that the agister was “ only bound to exercise ordinary care,” and adds that as the owner of the horse knew he was “ breachy ” before putting him to pasture, he should have contracted for special and extraordinary care on that account, if he desired more than the usual attention bestowed upon his animal.
    Messrs. Cratty Bros. & Ashcraft, for appellee.
    From the record it appears that, in June, 1886, appellee was the owner of a pair of matched mares, worth from $1,200 to $1,500, used by him as a driving team; that appellant was the owner or in possession of a farm near Palatine, Illinois, where he made a specialty of boarding and caring for horses from Chicago, especially gentlemen’s road horses; that, on June 16, 1886, appellee, being about to take a trip to Europe for the summer, sent his team to appellant’s place to be cared for during his absence, where they remained until September 10 th of that year.
    The evidence is conclusive, that, while these mares were in appellant’s possession, one of them became with foal, and was delivered of a colt July 13, 1887. That by reason of her getting with foal appellee lost the use of the mare for nearly a year, and that breeding her resulted in pulling her down, stopped her growth, etc., so that she does not match the other mare, causing a damage to appellee of at least $400, all of which was disclaimed except $200, for which suit was brought in justice’s court, where judgment was rendéred against appellant for the full amount, which was affirmed, on appeal, in the Circuit Court. It appears, from the evidence, that appellant was advised of the value of this team before receiving it, and contracted to give it extra care, for which he charged and received a tirst-class price.
    When property is placed in the hands of a bailee, in good condition, and returned in a damaged condition, the law will presume negligence on the part of the latter, and impose upon him the burden of showing that he exercised such care as was required by the bailment. Bennett v. O’Brien, 37 Ill. 250; Cumins v. Wood, 44 Ill. 416; Funkhouser v. Wagner, 62 Ill. 59.
   Gary, J.

In this case the court is not asked to overrule the doctrine of the Supreme Court in Funkhouser v. Wagner, 62 Ill. 59, that the burden is on the bailee of an animal received in good and returned in bad condition, to show how the change happened, but it is asked to review the evidence and reverse the finding of the Circuit Court upon the facts.

The most favorable view for the appellant of the facts is that he don’t know how it happened; but if his conjecture on the matter is correct, he, in that particular, was not in fault.

Judgment affirmed.


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    William P. Nelson v. The Pickwick Associated Company.

      Mechanic's Lien—Delay of Other Contractors—Damages—Evidence— Architect.

    1. Under a written contract to furnish materials and labor in the erection of a building, naming a specific sum as compensation therefor, any promise of extra pay must, in order to bind the promisor, be based upon a sufficient consideration.
    2. Where such contract provides that in case of delay caused by the failure of other contractors to complete their work extra time shall be allowed, such provision will not preclude the recovery of damages resulting from the delay.
    3. It is incumbent upon one who is erecting a building to keep the work in such a state of forwardness as to enable contractors to complete their work within the time limited.
    4. In the ease presented, the claim made by the contractor is not within the clause of the contract relating to questions which the architects should decide.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding,
    Mr. Charles F. White, for appellant.
    It was manifestly to the advantage of appellee that Mr. Kelson should complete the work, and the promise of appellee to pay the advance in wages is just what would he expected under such circumstances.
    Mr. McNeil also says : “I heard nothing more from them for a long, long time. They went ahead and did their work;” a significant fact when it is considered that Nelson contemplated abandoning the job, and told McNeil he didn’t propose to complete the work.
    It was competent for the parties to contract for an additional sum to be paid. Cook v. Murphy, 70 Ill. 96.
    Mr. McNeil was president of the defendant corporation as well as its agent, and was authorized to make the contract. Chicago Building Society v. Crowell, 65 Ill. 455 ; Union Mut. L. Ins. Co. v. White, 106 Ill. 75.
    The notion that a corporation acts only under its corporate seal and by its president and secretary is obsolete. New Eng. F. & M. Ins. Co. v. Schuttler, 38 Ill. 166; Board of Education v. Greenebaum, 39 Ill. 609; Ill. Cent. R. R. v. Johnson, 40 Ill. 297.
    Messrs. Paddock, Aldis & Wright, for appellee.
   Gary, J.

Between these parties a contract was made July 12, 1886, by which the appellant undertook to do the painting and glazing of a building being erected by the appellees. The specifications of the work provided that it should be completed by February 15, 1887, and that §25 per day should be deducted from the contract price for every day the work should remain undone after that date. Also that appellant should co-operate with the contractors for the other parts, and arrange and carry on his work in such a manner that none of the co-operating contractors should bo delayed. These portions of the specifications were in print, and it is a reasonable inference that contractors for other parts of the work were bound by like provisions.

The contract required the work to be done under the supervision of architects, and their certificate was a condition precedent to any payments. It reiterated that the damages for delay should be deducted as mentioned in the specifications, and in a later portion provided: “ Should delay be caused by other contractors, to the positive hinderance of the contractor hereto, a just and proper amount of extra time shall be allowed by the architects, provided they shall have given written notice to the said architects at the time of such hinderance or delay.

“ And in case the said parties shall fail to agree as to the true value of extra or deducted work, or the amount of extra time, the decision of the architects shall be final and binding; the same in "case of any disagreement between the parties relating to the performance of any covenant or agreement herein contained.”

The principal question in the case is, whether this provision for the allowance of extra time by the architects is the only remedy of the appellant when delayed by other contractors. He was so delayed until, by the rise of wages, it cost him $473.20 more than it otherwise would have done to perform his contract. / The matter in controversy is, whether he shall recover that sum. There is parol testimony of a promise by the general agent of the appellees, having authority, made to appellant when but a small part of the work was done, and he claimed extra pay as a condition of going on with it, that the company would pay the additional cost caused by such delay. But if the rights of appellant were fixed by the contract, any promise to pay him extra for doing what the contract bound him to do would lack a consideration, unless special circuinstances would take the case out of the general rule, as in Bishop v. Busse, 69 Ill. 403, and Cooke v. Murphy, 70 Ill. 96.

There is a preponderance of the testimony that such a promise was made, and the probability that there was, as well as the justice of the claim, are strongly supported by the concurrent circumstances. Without reciting that testimony and those circumstances, however, the case may safely be put upon the ground that “ the contract necessarily presupposes and implies, on the part of the appellees, an obligation to supply ” that upon which the appellant was to do his work. Broom’s Legal Maxims, 667.

It was the legal duty of the appellees to keep the work in such a state of forwardness as to enable the appellant to perform his contract within the limited time. See v. Partridge, 2 Duer, 463.

The provisions for the extra time was for the avoidance of the penalty the appellant would incur if he did not complete his contract on time. In its language it purports a benefit to him; an allowance, not a deprivation, of his right to require the work to be in readiness for him.

Under a provision in the specifications with other contractors, whose work preceded that of the appellant, like that in the specifications for his work, the appellees had in their hands indemnity for the increase to the price of the appellant’s work. If they did not have such a provision it was their own omission, the consequence of which is not chargeable to appellant.

If the appellees desired exemption from their obligations under the contract, they should have put such exemptions in clear language that would have put appellant on his guard, and left no doubt as to what was intended. In Wood v. Fort Wayne, 119 U. S. 312, a contract in relation to constructing water works for the city of Fort Wayne, the city furnished pipes through another contractor, and in the contract with Wood it was provided that he “shall have no claim upon the city for any delay in the delivering of pipes or other materials from the manufacturers; ” and that all loss or damages arising “from any unforeseen obstructions or any difficulties that may be encountered in the prosecution of the work shall be incurred by the contractor without extra charge” to the city. Yet it was held that the city was liable where the pipes so furnished were defective in size, and delay and expense ensued, upon the ground that the delay not being in the delivering, but the kind being such as took time and expense to remedy the defects, the loss was not covered by the contract.

It is only by the application of the maxim, expressio unius est exclusio alterius, that the claim of the appellant can be cut off; that, as there is one consequence of delay caused by other contractors declared, all others are, by that declaration, ex-eluded. But this maxim, “is nob of universal application, but depends upon the intention of the parties as discoverable upon the face of the instrument, or of the transaction.” Broom’s Legal Max. 653.

The claim made by the appellant is not within the clause quoted from the contract as to questions the architect should decide. There is no question of the value of extra work, nor is there any disagreement between the parties relating to performance of the contract. The amount which the appellant i should recover if he is entitled to recover at all, being undisputed, the decree is reversed and the cause remanded with directions to allow to appellant §478.20 for his damages for] delay, as well as the amount due him upon the contract.

Reversed and remanded.


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    August Heuer et al. v. Herman Schaffner et al., Petitioners.
    Insolvency—Fraud—Judgments—Assignment—Costs.
    1. A mere “ shift or artifice under forms of law ” to defeat the operation of the voluntary assignment act by effecting an unequal distribution of the estate of the insolvent, is voidable at the instance of other creditors.
    2. In the case presented, the County Court properly ignored the claims of the judgment creditors to priority.
    [Opinion filed March 13, 1889.]
    Appeal from the County Court of Cook County; the Hon. Elbert H. Gary, Judge, presiding.
    Mr. John C. Richberg, for appellants.
    Messrs. Eliel & Rosenthal, for appellees.
   Gary, J.

December 2, 1887, these insolvents executed judgment notes to several of their creditors, among whom were the appellants, under an arrangement between the insolvents and the creditors that judgments should be forthwith entered, executions issued, and all but one levied upon the goods of the insolvents, that one returned nulla bona, and upon that a bill in chancery should be filed and a receiver appointed, to whom the possession of the goods should be surrendered by the sheriff, and that the receiver should continue the business so as to get the utmost out of the property for the benefit of general creditors, after paying the judgments. To the firm of which appellant Heuer is a member, accounts due to the insolvents were also assigned as part of the general plan. The sheriff defeated the whole scheme by refusing to return nulla bona on the execution last put into his hands and levying that with the others. December 9, 1887, the insolvents and the judgment and general creditors, exclusive of the appellees, made a new arrangement by which the insolvents made a general assignment to appellant Heuer, in order that he might do what they had intended a receiver should do.

December 12, 1887, on the petition of Heuer, with the assent of all parties in interest (except appellees), the County Court ordered the sheriff to deliver to the assignee all the property levied upon, and further ordered “that the liens of the judgment creditors, in the order of their priority, be preserved, and the judgments and costs should be paid by assignee in the order in which they are liens on said estate, all of the foregoing and the rights of all parties in interest subject to adjudication by this court.”

Ho question arises in this case as to the jurisdiction of the County Court to make this order, and in obedience to it and by the assignment of accounts before mentioned, all of the assets of the insolvents came to the possession of the assignee, and over him as such, and over the assets in his possession, the County Court had “ full authority and jurisdiction.” Ide v. Sayer, ante, p. 211.

Hor is that authority and jurisdiction impaired or in any way narrowed or trenched upon by the fact that the judgment creditors consented to the surrender by the sheriff to the assignee of the property levied upon, upon terms as to their priority. Hanford Oil Company v. First National Bank, 126 Ill. 584. The general property in the goods levied upon was in the assignee before the surrender, and when the lien of the levy was extinguished by the surrender the disposition of the property and the validity of all claims upon it were matters for the County Court to determine. Case last cited and Hanchett v. Waterbury, 115 Ill. 220.

Without reference to the testimony of Sheldon, who says that when the judgment notes were made an assignment was mentioned, but that the receiver was preferred, a very slight-consideration of the circumstances is enough to lead to the necessary conclusion that the transaction of December 2,1887, constituted a mere “ shift or artifice under the forms of law ” to defeat the operation of the voluntary assignment act by effecting an unequal distribution of the estate of the insolvents, and was therefore voidable at the instance of other creditors. Preston v. Spaulding, 120 Ill. 208; Hide & L. Bank v. Rehm, 126 Ill. 461; White v. Cotzhausen, 129 U. S. 329.

The decree of the County Court putting the appellants upon an equal footing with other creditors is right. The costs of entering their judgments were incurred in attempting to outwit the law, and were therefore properly disallowed.

Decree affirmed.


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    James C. King v. Francis Barnes et al.

      Brokers—Beal Estate—Commissions—Action to Becover.

    1. Where the evidence is not clear, the instructions must be accurate.
    2. In an action to recover commissions alleged to be due the plaintiffs as real estate brokers, this court reverses the judgment for the plaintiffs because of the giving of an instruction which is not based upon the evidence-

      [Opinion filed January 18, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. John Gibbons, for appellant.
    Mr. E. L. Barber, for appellees.
   Gary, J.

The evidence in this case was such as to entitle the appellees to argue to the jury that the appellant employed them to sell his property; that they commenced negotiations with the subsequent purchaser, and informed the appellant of that fact, giving the name of the possible or probable purchaser; that before any conclusion was reached the appellant withdrew the property from them, and afterward made the sale himself to that purchaser, as a consequence of the negotiations begun by them.

If the jury had believed the argument, appellees would have been entitled to a verdict. But, by the instruction asked by them, the case was put to the jury upon the hypothesis, of which there was no evidence, that before the property was withdrawn frbm them they had found a purchaser ready and willing to take and pay for the property upon the terms which the appellant had fixed, and that the sale was prevented by the appellant having changed his mind. The appellee Barnes, with whom the appellees say appellant conducted the business, testifies that when the property was withdrawn from them the purchaser was still undecided, and that a short time after he notified the appellant that the purchaser was ready, and then appellant raised his price.

What may be the real justice of the case is not so clear that the error in giving this instruction may be disregarded.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Garnett, P. J.

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    Samuel Kitson v. Johh V. Farwell et al.

      Insolvent Debtors—Imprisonment—Petition for Release—Chap. 73, R. S.—Malice—Evidence—Former Adjudication—Fraud—Practice.

    1. Upon the petition of an insolvent debtor to be released from imprisonment under Chap. 72, R. S., it is proper to permit the arresting creditors to introduce in evidence the record and files in the case wherein the writ on which the petitioner was arrested was issued, to show that malice was the gist of the action.
    2. In the case presented, the declaration having been so framed that the verdict necessarily found malice to be the gist of the action, the court holds the judgment to he final, both as to questions of law and fact there decided.
    3. Formal and specific objections to the introduction of evidence to save all rights, must be made when the same is offered.
    4. The trial court may allow the introduction of evidence out of its usual order, in order to economize time.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for appellant.
    Messrs. Tenney, Bashford & Tenney, for appellees.
   Garnett, P. J.

Appellant filed his petition in the County Court, praying to be released from imprisonment, in pursuance of Chap. 72 of the Revised Statutes. He was arrested by virtue of a capias ad satisfaciendum issued on a judgment for 85,882.54 in favor of appellees.

At the trial of the issue under the petition, the County Court found malice was the gist of the action in which the judgment was rendered, denied his prayer and dismissed the petition. On appeal by Kitson to the Circuit Court, the cause was tried before the court and a jury, a verdict being rendered against Kitson by direction of the court; judgment of the County Court was affirmed, and that court was directed to remand him to the custody of the sheriff, and Kitson ■ brings-this appeal from that order.

Before the petitioner rested his case, the court permitted appellees to offer in evidence the record and files in the ■ case in which the judgment was rendered, for the purpose of proving that malice was the gist of the action. The method adopted by the court may be justified on the ground that it was an economy of time, and could not in any event- harm the appellant. The same result must have been reached had the court permitted appellant first to introduce his evidence. Any quantity of parol evidence in contradiction of the record, in the end must have been ruled out, thus leaving appellant no evidence to go to the jury. That this waste of time was declined by the court and the conclusion of the trial hastened, can not be made the ground of just complaint.

When the record and files of the suit were offered in evidence, petitioner’s counsel said: “I do not concede that that is the record; ” but made no formal or specific objections to their introduction. The contention now is that the court erred in not requiring the appellees to identify the record and files' before receiving them in evidence. The objection now comes too late. Doyle v. Village of Bradford, 90 Ill. 416; 1 Thompson on Trials, Secs. 693, 694.

Each count of the declaration was so framed that the verdict necessarily found malice was the gist of the action. That question having once been litigated between the parties, the judgment is final both as to the questions of law and fact there decided. Harmon v. Auditor, 123 Ill. 122.

Another error assigned by appellant is based on the ruling of the court which excluded the offer of appellant to prove that the debt which was the foundation of the judgment was not incurred by any fraudulent or false representations made by Kitson; that there was no fraudulent intention on his part; that he made no representations except such as he had a right to believe to be true, and that when he purchased the goods lie bought them in good faith, intending to pay for them. Each fact presented by this offer is a direct contradiction of the facts alleged in some one count of the declaration, and the evidence could not be received without a plain departure from the doctrine of res adjudicata. The argument now urged by counsel for appellant, that they might have proved that the fraud set forth in the declaration was perpetrated by Kitson’s agent or partner, and that he, personally, had nothing to do with it, is an effort to extend the scope of the offer. What the effect of such proof would be need not be considered, as no tender thereof was made. On the contrary, the presumption is that Kitson and his counsel knew the facts in the case, and that the offer was made in terms as favorable to him as the facts would warrant. The order is affirmed.

Order affirmed.


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    William N. Wharton v. Gabriel K. Wright and Magdalene Wright.

      Libel—Privileged Communications, Absolute and Qualified—Proof of Malice—Evidence—Damages.

    1. An absolute privileged communication is one in -regard to which the public interest requires that one shall be allowed to speak or write fully and freely, even though _the speaking or writing is knowingly false and malicious..
    2. A qualified privileged communication is such a one as is required to be made honestly and for the common good.
    3. In case of a qualified communication the person defamed is entitled to damages, if he can show that the same was made in bad faith and for the purpose of traducing him.
    4. The burden of proving malice in such cases is upon the plaintiff.
    5. In an action of libel based upon a written communication, this court holds that the evidence tends to show that the publication was attended with malice, and that the case should have been submitted to the jury with proper instructions.
    [Opinion filed March 13, 1889.]

      Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    This is an action on the case for libel. The declaration charges, in proper form, that appellees, on December 11,1885, maliciously wrote, directed and sent to the firm of Crawford, Mumford & Wroten a letter concerning the plaintiff, as follows:
    “We have this day handed H. B. Black, Esq., our affidavit, together with a sample marked‘Exhibit 3.’ We desire to call your attention to the affidavit. You perhaps will be surprised when yon learn the fact we kept from you from the beginning—that Alfred A. Wright and John W. Wright are brothers of the writer; that W. 1ST. Wharton was also in the employ of the writer. This man Wharton is and has been their tool, unknown to the writer, until after the first of August, when he left my employ suddenly and without any provocation, and became their servant, and willfully swore falsely to the affidavit sent yon. As to the invoice, and the difference in printing on the invoice, when you compare ‘Exhibit 2’ and ‘Exhibit 3’ you will see at once why we changed the printing on the invoice. It was no accident—no mistake. It was made expressly for our patent Helix needle, which is superior in quality to our Helix needle; and this man Wharton knew this to be the fact, aúd he was here when the change was made. But, to convince yourselves, kindly compare the labels of Exhibits 2 and 3, also the needles, and you will at once see that he perjured himself.”
    ■ The general issue was interposed by defendants.- At the trial it appeared that in the year 1885 appellees were in business in Chicago under the firm name of William Clark & Sons; Crawford, Mumford & Wroten, in Hannibal, Mo., and the firm of Alfred Shrimpton & Sons, in St. Louis. All three firms were engaged in selling needles. In the summer or fall of 1885 appellees, without any order from the Hannibal firm, and without any previous business relations with them, shipped them some needles, accompanied by an invoice. Shortly afterward A. A. Wright, a member of the St. Louis firm, called on the Hannibal firm and stated to them that apjmllees had sold their patent Helix needle at a less price than that named in said invoice. Thereupon the Hannibal firm informed appellees of the fact stated by Wright, and appellees then wrote a letter to the Hannibal firm offering §100 for the production of a bona fide invoice of their patent Helix needle, made out in their office at the lower price named by Wright. The plaintiff, being informed of the offer, made his affidavit on November 21, 1885 (attaching thereto an invoice), stating that the invoice so attached, showing a purchase of 10,000 needles at seventy-five cents per thousand (that being the lower price named) by W. N. Wharton from William Clark & Sons, was true and correct in every respect, and was delivered to said Wharton by said Clark & Sons, together with said 10,000 needles at their place of business in Chicago, and that said needles were the patent Helix needle. The affidavit and the invoice were sent to the Hannibal firm, and by them transmitted to Chicago. Appellees being informed thereof, claimed, upon inspection of the paper, that it was a forgery, and wrote to the Hannibal firm the letter declared upon in this action. At the trial evidence was also given tending to prove that Gabriel K. Wright knew that the invoice was made out in appellees’ office in the usual course of business; that the needles were actually sold at the price stated therein, and that Gabriel 1L Wright knew that the charge of false swearing against plaintiff was not true.
    When the plaintiff rested his case the court directed the jury to find the defendants not guilty, to which the plaintiff excepted. Motion by plaintiff for new trial overruled and exception.
    Judgment on verdict and plaintiff appeals.
    Messrs. Rich & Stone, for appellant.
    Any false and malicious writing published of another, is libelous per se when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him, or which reflects upon his character, or imputes something disgraceful to him. Cooley on Torts, 206; Townsend on Slander, 262, 264.
    As a fitting climax to all the venom and ill-will and malice displayed in the publication in question is the following: “And yon will at once see that he perjured himself.” This is libelous beyond question. A charge of perjury is actionable per se. Sanford v. Geddes, 13 Ill. 329; Mitchell v. Milholland, 106 Ill. 175; Townsend on Slander, 243, 244, 245.
    The law is well settled that when the words are libelous per se, malice is implied. Miller v. Johnson, 79 Ill. 61; Rearick v. Wilcox, 81 Ill. 77.
    When the language is false and malicious, i. e., published without lawful excuse, no other evidence of malice is necessary. Townsend on Slander, 657.
    A qualified privilege extends only to communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty. Edwards v. Chandler, 14 Mich. 471; Knowls v. Peck, 42 Conn. 386; Early v. Moss, 9 Ala. 266; Van Wyck v. Aspinwell, 17 N. Y. 190; Lynch v. Febegir (La.), 1 Southern Rep. 690; Rainbow v. Benson, 32 N. W. Rep. 352; Chaffin v. Lynch (Va.), 1 So. E. Rep. 803.
    The meaning, in law, of a privileged communication, is that it is made on such an occasion as rebuts the prima faoie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by extrinsic evidence only. He has still the right to re-' quire that the alleged libel itself shall be submitted to the jury, that they may judge whether there is any .evidence of malice on the face of it. Wight v. Woodgate, 2 Comp. M. & R. 573; 1 Gale, 329.
    Having established the publication to be libelous and malicious, we contend that the question whether the publication was privileged or not was a proper one for the jury, and that the court wrongfully withdrew the case from them. Zuckerman v. Sonnenschein, 62 Ill. 117.

      The question whether malice existed should have been left with the jury. If malice existed an action would lie. Statements prejudicial to a person’s reputation are privileged only where there is a want of malice, and the plaintiff may show by extrinsic evidence that there was malice. Elam v. Badger, 23 Ill. 498; Gazette v. Gilbert, 6 Gray, 94; Warnes v. Paine, 2 Sandf. 195.
    Ho evidence was offered by the appellees to show whether the communication was privileged or not. They relied simply upon the article itself and the evidence produced by appellant. By withdrawing the case from the jury the court cut off appellant’s right on rebuttal to introduce further proof of malice and ill-will. It was not incumbent upon appellant to show express malice upon the direct part of his case; the proper place for introducing proof of that character was upon the rebuttal—rebutting the question as to whether the communication was privileged or not. It was proper for the jury to say whether, considering all the circumstances of the case, the conduct of the defendant was not malicious. Boswell v. Ossgood, 3 Pick. 379; Remington v. Congdon, 11 Pick. 315.
    The communication itself charges a crime. It was made wantonly, and without any reasonable evidence of its truth, or evidence or circumstance that would lead an ordinarily prudent person to believe that it was true. All the facts and circumstances are admissible, and should be taken into consideration in determining whether the charge was made through ill-will, or a wanton disregard of the character and right of appellant. The evidence should have been submitted to the jury to determine whether the appellees acted in good faith. Clinck v. Colby, 46 N. Y. 427; Brown v. Hathaway, 13 Allen, 239; Gazette v. Gilbert, 6 Gray, 694; Fowler v. Bowen, 30 N. Y. 25; Kelly v. Partington, 4 Barn. & A. 700; Bacon v. Mich. Cen. R. R., 33 N. W. 181; Wheaton v. Beecher, 33 N. W. 503.
    Hr. H. L. Raftree, for appellee.
   Garnett, P. J.

The Circuit Court was of opinion that the letter which is made the foundation of this suit was a privileged communication, and for that reason directed a verdict for defendants. Privileged communications are of two kinds; absolute and qualified. The absolute are those where the public interest requires the defendant should be allowed to speak or write fully and freely, even though the speaking or writing is knowingly false and malicious. The qualified privilege only protects the speaker or writer so far as it is done honestly for the common good; and though the occasion be one of qualified privilege, the person defamed may recover damages, if he can prove that the occasion was used by the defendant in bad faith to wilfully and knowingly traduce the plaintiff. When there is no dispute about the circumstances under which the communication was made, it is a question for the court whether the occasion was privileged. He having decided that'the occasion was privileged, the question of malice then became important. Odger on Slander and Libel, 183, 184, 266.

If malice be proved, the qualified privilege attaching to the occasion is lost at once. Ib. 267. There can be no better evidence of malice than the writing of that which the writer knew to be untrue. Elam v. Badger, 23 Ill. 501; Clark v. Molyneux, L. R., 3 Q. B. D. 247.

The burden of proving malice in such cases is on the plaintiff. He may prove the fact by extrinsic evidence, for example, by showing there were former disputes between defendant and himself, or that the defendant entertained any ill feeling against him at any time, either before or after the date of the publication. The rule as to the admission of evidence to show malice is very broad and liberal.

In fact, the plaintiff is not confined to extrinsic evidence, but may rely on the words of the libel itself, and the circumstances attending its publication. If the expressions employed appear uncalled for and in excess of the occasion, there is enough evidence to go to the jury. Odger on Slander and Libel, 270, 271, 276, 280.

Here the appellees seek protection under the qualified privilege, and we are clearly of opinion that there was evidence tending to prove that the publication of the letter complained of was attended by malice and the court should have submitted the case to the jury with proper instructions.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Alfred A. Wright v. Gabriel K. Wright et al.

      Libel—Abuse of Privilege.

    In an action for libel where the defense is based upon privilege, if there is evidence tending to sliow that the alleged privilege was used to gratify a malicious spirit, the plaintiff is entitled to have the case submitted to the jury.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Rich & Stone, for appellant.
    Mr. M. L. Rastree, for appellees.
   Garnett, P. J.

The only question in this case is disposed of hy the ruling in Wharton v. Wright [ante p. 343], Appellant in this declaration charges appellees with libel, and appellees defend on the ground that the communication was privileged. There was evidence tending to prove that the alleged privilege was used to gratify a malicious spirit, and appellant had the right to have the case submitted to the jury.

Repetition of what is said in Wharton v. Wright is unnecessary. The court erred in directing the jury to find the defendants not guilty. The judgment is reversed and the cause remanded.

Reversed and remanded.


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    George E. Lloyd et al. v. The Chromotype Company, for use, etc.

      Fraudulent Conveyances—Assignment of Accounts—Effect—Remedies —Garnishment—Estoppel.

    1. An assignment of accounts in fraud of the assignor’s creditors is binding upon the assignor, at least to the extent the assignee succeeds in uniting the legal to the equitable title by collections.
    2. In the case presented, the assignee of the accounts in question did not hold them as collateral security, and, if he made a promise so to apply them, it was without consideration.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. George R. Grant, for appellants.
    The assignment of the accounts of the Chromotype Company to Lloyd being confessedly fraudulent, the proceeds of them in the hands of the fraudulent assignee can not be reached by garnishment process. The proposition that a creditor who brings garnishment proceedings in the name of his debtor has no greater rights than his debtors, is so well settled that it is not necessary to discuss it. Crownover v. Bamburg et al., 2 Ill. App. 162.
    The Chromotype Company could bring no action against Lloyd for the recovery of the moneys in his hands, the assignment to him being admitted to be fraudulent, and for this reason alone, Yan Schaack et al. had no standing in court to garnishee the fund in the hands of Lloyd.
    Even if the assignment to Lloyd had been tona fide, appellees would stand in no better position. Lloyd having been notified by the Chromotype Company to apply the moneys in his hands on its indebtedness on notes and mortgage held by' him, and having agreed to do so prior to any action having been commenced by Van Schaacb, it was his duty to so apply it, and he had nothing left which any creditor of the Chromotype Company could legally reach by garnishment, and the funds in his hands should have been applied on the notes of the company purchased by Grant for value, without notice of any fraud. After notice to Lloyd, and his promise to so apply the fund, he stood in the position of a trustee, for the benefit of the holder of the notes and mortgage originally made to him, and subsequently sold and transferred to Grant, and hence could not properly be garnisheed. Cooper v. McClun, 16 Ill. 435.
    Messrs. Bangs & Bangs, for appellees.
    The fraudulent assignment to Lloyd & Co. was binding upon the Chromotype Company, and wholly divested that company of any further right in or authority over the accounts thereby assigned or their proceeds so in Lloyd’s hands; and that company nor its general or special assignee has any right to impeach or set aside such fraudulent transfer. Bouton v. Dement, 123 Ill. 142-149. The right to impeach that fraudulent ass’gnment to Lloyd belonged alone to creditors of the Chromotype Company—that is, to those whom the law had decided to be creditors. Van Schaack & Sons were such by their judgment and garnishee proceedings. Bouton v. Dement, 123 Ill. 142-149; Sheldon v. Hinton, 6 Ill. App. 216, and authorities there cited.
    The writing of assignment of January 20, 1887, from the Chromotype Company to Harding, was simply an attempt of the company to transfer to Harding what it had fourteen days before sold and delivered to Lloyd. This gave Harding no right to the accounts, because the company had no rights to give. The mere fact that Harding held the unpaid notes and mortgage of the company, had no effect under said writing to invest him with any other character or power than that of a mere assignee of the Chromotype Company. The said writing to Harding is the only source of right, in Harding, claimed by appellants.
    The sale of the notes and mortgage held by Lloyd to Grant on the 29th of January could have no effect upon the said accounts or tlieir proceeds, then held by Lloyd, there being nothing in the record even tending to show that result; and that sale to Grant is the only foundation set forth by appellants for Grant’s interpleader herein. He should take nothing thereby.
    In the absence of fraud, it is true, as stated by appellant’s brief, “that a creditor who brings garnishment proceedings in the name of his debtor, has no greater rights than his debtor.” In this case, however, the fraud is admitted and makes the exception to appellant’s rule clear and unquestionable. Drake on Attach., Sec. 223; Samuel v. Agnew, 80 Ill. 553; Bouton v. Dement, 123 Ill. 149.
    The admitted fraud in the assignment to Lloyd is what gives Van Schaack & Sons, as judgment and garnisheeing creditors, their standing in court, and denies any standing to Harding and Grant as interpleaders. See authorities, supra.

    Lloyd became the owner of said accounts, and not trustee, by-said assignment and transfer, as against everybody, except an attachment or a judgment and garnisheeing creditor of the Chromotype Company, neither of which was either Harding or Grant. Therefore the case of Cooper v. McClun, 16 Ill. 435, cited by appellant, is not in point.
   Garnett, P. J.

The Chromotype Company, on and prior to January 6, 1887, was indebted to George E. Lloyd, George F. Harding, and to Van Schaack & Sons. The claims of Lloyd and Harding, respectively, were secured by separate chattel mortgages, Van Schaack & Sons being without security. On that day the company, without consideration and for the purpose of defrauding its creditors, assigned to Lloyd certain open accounts, which he accepted with like purpose, and upon which he collected $101. By assignment, dated January 20, 1887, the company, in consideration of $1,000, assigned the same accounts to Harding, and on January 29, 1887, Lloyd assigned and delivered to Grant the chattel mortgage and notes which he held against the company. Van Schaack & Sons having obtained a judgment against the . company for $152.15, and execution thereon being returned unsatisfied, a garnishment against Lloyd was sued out. Harding and Grant interpleaded in the latter proceeding and judgment was rendered against them for costs. Their interpleader was dismissed and judgment was also rendered for $101.31, in favor of the company for the use of Van Schaack & Sons, against Lloyd. Harding and Grant alone appeal from the judgment.

1. The assignment to Lloyd, though in fraud of the assign- or’s creditors, was binding on it (Miller v. Marckle, 21 Ill. 152), at least so far as Lloyd succeeded by collections in uniting the legal to the equitable title. Beyond the amount of such collections we are not required by this record to decide. No rights could be conferred by the company on Harding to that sum, because it had no rights to convey. The claim of Harding, we understand', is founded on the assignment to him, and not by reason of his prior claim as a creditor of the company. If, however, he is proceeding as a creditor, lie has no footing to set aside a fraudulent conveyance until he exhausts his legal remedy.

2. Lloyd did not hold the accounts as additional security for his claim against the company. If they were held as additional security, all his rights thereto would have passed to Grant as an incident to the debt which Lloyd assigned to him. But the admitted facts deny that there was any consideration for the assignment of the accounts to Lloyd.

3. If it be true that Lloyd promised the company on the 26th of January, 1887, to apply the money realized on the accounts, as credits on the notes he held, such promise was without consideration. Grant did not purchase the notes and mortgage on the faith of the alleged promise and can not rely on it as an estoppel.

The judgment is affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    Bernard Roden v. Chicago and Grand Trunk Railway Company.

      Railroads—Personal Injuries—Negligence—Practice—Instruction to Find for Defendant.

    1. Where one is injured by a railroad company, while negligently walking along its right of way, in order to recover, he must show that the injury could have been avoided by the exercise of ordinary care on the part of the servants of the company, and that they failed to exercise such care.
    2. Where the evidence of the plaintiff is insufficient to sustain a verdict for him, if obtained, the (rial court may properly direct a verdict for the defendant.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Burke & Hollett and John Gibbons, for appellant.
    Mr. F. H. Culver, for appellee.
   Per Curiam.

This was an action brought by appellant to recover damages for an injury received by him, by being struck by an engine which was being run by the servants of appellee. At the time of the injury appellee was walking on the track of appellant at a point between Archer avenue and Twenty-third street in Chicago.

The case came on for trial before a jury, and after the plaintiff had introduced all his evidence, the court, at the request of appellee, instructed the jury to find a verdict for the defendant. This is assigned for error. We do not deem it necessary in deciding this case in this court, to set out all the evidence in detail. Appellee went upon the railroad track and walked along it at a point where he knew trains and engines were very frequently passing. He was there without right, add his being there was negligent on his part. It is well settled by numerous authorities that where one is injured by a railroad company under such circumstances, he must, in order to recover, show that his injury could have been avoided by the exercise of ordinary care on the part of the servants of the company, and that they failed to exercise such ordinary care. Lake Shore & M. S. R. R. Co. v. Blanchard, 15 Ill. App. 586.

There is no evidence in this case from which such an inference can be drawn. Admitting all that the evidence tended to prove, it failed to establish that appellee’s servants were guilty of any such negligence in managing the engine by which appellant was struck, as would show the act to be wanton, or to have been done when, if they had exercised ordinary care, it would not have happened. I. C. R. R. v. Godfrey, 71 Ill. 500; I. C. R. R. v. Hetherington, 83 Ill. 510.

The court did not err in taking the case from the jury and the judgment must therefore be affirmed.

Judgment affirmed.


text:
    B. M. Shaffner v. P. B. S. Pinchback.

      Gaming—Money Advanced.

    Money advanced, either as a loan or on joint account, to be bet on a horse race, can not be recovered.
    [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Mr. B. M. Shaffner, for appellant.

      Appellee admits receiving $1,000 from appellant for wagering on horse races. This is gaming. Tatman v. Strader, 23 Ill. 493.
    And is clearly recoverable under the statutes. See 179 and 180, Chap. 38, R. S.
    Under appellee’s theory, the most favorable position he occupies is that of stakeholder. The law is well settled that money deposited with a stakeholder and by him not paid over, is recoverable by the depositor. Cotton v. Thurland, 5 T. R. 405 ; Hastelow v. Jackson, 8 B. & C. 221; Smith v. Bickmore, 4 Taunt. 474; Bate v. Cartright, 7 Price, 540; Hudson v. Terrell, 1 Cromp. & M. 797 ; Martin v. Hewson, 10 Exch. Rep. 737.
    Mr. E. H. Morris, for appellee.
   Gary, J.

Money advanced, either as a loan or on joint account, to bet on a horse race, can not be recovered, whether the receiver won or lost, whatever excuse or pretense he may offer for not repaying it.

The principle of Mosher v. Griffin, 51 Ill. 184, governs. Beck v. Briggs, 3 Den. 107; Ruckman v. Bryan, 3 Den. 340.

Judgment affirmed.


text:
    Charles B. Shedd v. John Dalzell.

      Practice—Evidence—Depositions—Objections—Bill of Exceptions.

    1. It is not sufficient to object to depositions before the trial.. Objections should be made and exceptions preserved when they are offered in evidence.
    2. This court will not consider instructions which are not incorporated in the bill of exceptions.
    3. The bill of exceptions should show by whom exceptions noted were taken.
    4. It should appear from the bill of exceptions that the motion for a new trial was decided, and that exception thereto was taken.

      [Opinion filed March 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Mr. Ullman Strong, for appellant.
    Mr. Geo. Willard, for appellee.
   Gary, J.

Taking up the errors assigned in the order- they are assigned, the first five relate to the admission or rejection of evidence, and there is no exception to the action of the court upon that subject. The evidence for the appellee was by depositions. Before the jury was impaneled the appellant moved to exclude, or objected to, the depositions, and excepted to the ruling of the court against him, but when the trial was in progress, so far as the record shows, they were read without objection. Perhaps he had by that time changed his mind. Perhaps the court would have done so. Gardner v. Haynie, 42 Ill. 291.

The next four errors assigned relate to instructions. Hone are in the bill of exceptions. It says some are attached. The court can not look outside of the bill itself for them. Liverpool v. Sanders, 26 Ill. App. 559. If they were in the bill they are not in the abstract. If parties will not conform to the rules of the court, the court will not encourage the disregard of them.

Many cases have called the attention of litigants to the rules on this subject, from Johnson v. Bantock, 38 Ill. 111, to People v. Angerer, 23 Ill. App. 450. And still further, the record does not show that appellant excepted to any action of the court upon the instructions. It says, “ Exceptions then and there were taken:” by whom is not stated. Wickenkamp v. Wickenkamp, 77 Ill. 92.

The bill of exceptions does not show that the motion for a new trial was ever decided, and, of course, contains no exception in relation to it. Dorsey v. Corn, 2 Ill. App. 533, was in chancery, and is no guide as to what the record on the law side of the court should be. The only justification for spending so much time on a record like this is that thereby the attention of the bar may be called to the need of complying with the rules of the court and of the law.

Judgment affirmed.


text:
    The Chicago Dredging and Dock Company v. Matthew McMahon.

      Personal Injuries—Master and Servant—Fellow-servants—Negligence —Instructions.

    1. If the negligence of a servant, in the exercise of authority conferred. upon him by the master over his co-laborers, causes an injury to one of them, the case is not within the general rule exempting the master from liability for injuries caused by the negligence of fellow-servants.
    2. It is proper to refuse to give an instruction touching an issue presented by the declaration but not by the evidence.
    3. The question what is, or is not, negligence, is for the jury.
    4. The appellant can not complain of an error which worked him no injury.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. William Law, Jr., for appellant.
    Mr. John Gibbons, for appellee.
   Gary, J.

The injury for which the appellee has recovered was received by him while at work with a dredge of the appellants. Whether he exercised due care for his own safety was a question upon which the verdict of the jury is, under the evidence, conclusive.

The preponderance of the evidence is, and the jury have in effect so found, that the injury was the result of an order given, after warning of the danger, by the servant of the appellants in command of the dredge and the men employed upon it, to another servant of the appellants, obedience to which brought upon the appellee the force by which he lost his arm.

The case, therefore, comes within the exception defined in C. & A. R. R. Co. v. May, Adm’r, 108 Ill. 288, to the general rule of the irresponsibility of the master to one servant for injuries sustained by the negligence of another in the same line of employment.

The instructions on behalf of the appellants, which were declaratory of the general rule, and ignored this exception, were, therefore, properly refused.

Ro. 2. “ If it be alleged that the master is guilty of negligence in selecting or retaining an incompetent servant, the burden is on the plaintiff to prove it,” might have been given without impropriety, as such an issue was presented by the declaration, but no harm follows from its refusal, as no such issue was raised by the evidence. Rothing had been said by any witness derogatory to the servant in command.

No. 8. Declaring conduct therein described to be negligence was properly refused, as it is for the jury, and not for the court, to say what is, or is not, negligence. C. & A. R. R. Co. v. Pennell, 94 Ill. 448; Schmidt v. C. & N. W. Ry. Co., 83 Ill. 405.

The appellant asked this:

Ro. 3. “ The court instructs the jury that no person or corporation is responsible for injuries to an employe occasioned by the carelessness, negligence or unskillfulness of a fellow servant engaged in the same line of employment, provided the employer has taken proper care and precaution to engage proper servants to perform the duties assigned to them. Ror is the employer liable for injuries thus sustained if the person injured was, while engaged as such servant, acquainted with the character of such fellow-servants engaged in the same line of employment for capacity, prudence and skill.”

Which the court gave, but with the following addition made by the court of its own motion:

“But you are instructed that, if you believe from the evidence that at the time of the accident the witness Peake had supervision, control and direction of the plaintiff, with power to discharge the plaintiff if he, the plaintiff, should disobey the order’s of said Peake, that then the plaintiff and said Peake were not fellow-servants within the meaning of the above instruction.”

This addition is assigned as error. The instruction, as presented, was wrong in not excepting from its general negation of responsibility such injuries as might be the result of carelessness, etc., in giving orders, and the addition was wrong in taking Peake out of the category of fellow-servants, so far as his acts as a co-laborer might affect his fellows; but the principle of the addition, in its application to the question before the jury, that is, whether the orders of Peake were the cause of the injury, was right. As to such orders, he was not a fellow-servant; not, perhaps, because he had the power to discharge the appellee, but because he was in “the exercise of the authority conferred upon him by the master over his co-laborers” (108 Ill. 299), and the injury was charged to the exercise of that authority.

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

Judgment affirmed.