author:
Lacey, J.
      Per Curiam.

text:
    Charles Eckley et al. v. Thomas Clark et al.

      Administration—Settlement—Bill to Impeach Final Account—Burden of Proof—Ecidence.

    After the settlement of an estate the correctness of the administrator’s final account is presumed. Where a bill is filed to impeach such an account the burden of proof is upon the complainant.
    [Opinion filed May 27, 1887.]
    Appeal from the Circuit Court of Warren County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. William K. Stewart and R. J. Grier, for appellants.
    Mr. John Porter, for appellees.
   Lacey, J.

This was a bill in equity filed in August, 1876, by the heirs of Patrick Clark, deceased, against the appellant, Charles Eckley, who was the administrator of the estate, and his sureties on the administrator’s bond, for the purpose of impeaching a final account filed by the said administrator on final settlement of the estate November 21, 1872, and to compel the administrator to render an account for various items not accounted for, and to estimate from this account on the credit side various items which, as appellees claim, were erroneously entered therein.

The bill was demurrable for failure to charge fraud on the part of the administrator, but as it was answered without objection we will treat it as though the account was being re-stated properly. The first error that was committed by the court below ivas in not holding that the final account was prima faoie correct, and in not casting the burden of proof on the appellees to show its error, the account having been approved by the County Court.

The cause upon the coming in of various answers and defaults was referred to the master with instructions to him to take the evidence and state an account. The master complied with the order and took the evidence and stated the account, to which both the appellants and appellees filed exceptions, which exceptions were carried into the Circuit Court, and upon the hearing of such exceptions by the Circuit Court that court rendered a decree against the appellants for $894.84, consisting of $523.27 as principal, and $371.57 interest, beihg from November 2, 1872, to September 25, 1884.

The first claim charged to the administrator is $50, paid by John Clark; this item had already been credited to the estate, as he swears, in an item of $54, as his report shows. The legal presumptions are also in his favor, and this is erroneously charged to him. The next is the amount of the judgment of the administrator v. Francis Clark, which he claims to have paid to the administrator, of $273,35. The appellees having the burden of proof to establish this claim, failed to overcome such presumption and the testimony of appellant to the contrary, and we think the proof does not establish that Francis Clark ever paid it. It is not necessary to .go into a full examination of the evidence. We are well satisfied that the full claim of Mrs. E. Eckley, of $401.84, paid her by the administrator, should have been allowed him. The evidence entirely fails to- show that appellant Eckley had any funds with which he could have paid such claim at the time Mrs. E. purchased it, and it does show that she purchased it with her own funds and she was entitled to charge the entire claim, principal and interest. It was error then to deduct from the administrator’s charges an account of such payment, $66.47, the amount Mrs. E. discounted the claim in her purchase.

We find nothing in the evidence to impeach, in any way, the correctness of the two claims of Hannah Shanks of $18 and $15 to the amount allowed, and that would authorize their reduction to $10 each, which was done; one receipt shows she was paid $10, and the other $15, and only one should be reduced to the amount of $8. There is no evidence to show that the two payments to Thomas Clark of $10 each were duplicates, or that the two attorney’s fees of Talliaferro for $10 each were duplicated. Unless such evidence clearly showed them to be duplicates, the presumption would be that the report was correct.

The reducing of the crier’s fee to $3 is correct; as Hutchins swears he cried but one sale, hence the charges must be duplicated and the law only allowed $3 fee for such services.

The striking out the allowance of the administrator by the County Court, of $50 for expenses in settling the estate, was error, as by the law then in force the County Court had the discretion to make the allowance, and that discretion could not now be interfered with by the Circuit Court. See Sec. 175 Chap. 109, Wills, Gross’ Statute, 1868. There may have been a mistake in favor of the administrator of $7.65 in calculating interest on the last real estate note. As to that, as the evidence was not fully abstracted, it can not now be fully determined nor can it be fully determined what effect the nonpayment of a portion of the lost note had on it. We leave that matter to be adjusted by the court below upon final hearing as it may determine.

The court below did not err in refusing to allow the interest claimed by appellees, there being no sufficient evidence to support such a charge.

Although the Statute of Limitations may not have run against this action, yet where years have been allowed to elapse before commencing suit to compel a re-adjustment of account, the evidence should show clearly that the settlement was erroneous, and all presumption should be indulged in favor of the administrator and his securities. They are taken at great disadvantage by this long delay. Of course it was error to order execution against the administrators of some of the sureties who have died, but that can be corrected on another hearing; so it is not necessary to make any further order concerning that matter.

The decree of the court below is reversed and the cause remanded to the court below with instructions to proceed in accordance with this opinion.

Reversed md remcmded.

REHEARING.

[Opinion filed December 15, 1887.]

Per Curiam.

The appellees file their petition herein for a rehearing. The error claimed to have been committed by this court in its decision, and most particularly relied on, is in holding that the proof did not establish that Francis Clark ever paid the judgment of $273.35 rendered in favor of the administrator against him.

In regard to the above item, we said in the opinion filed that “ the appellees, having the burden of proof to establish the claim, failed to overcome such presumption and the testimony of appellant to the contrary, and we think the proof does not establish that Francis Clark ever paid it. It is not necessary to go into a full examination of the evidence.”

Since the petition has been filed, we deem it no more than proper to give our reasons for arriving at the conc'us'on we did more atlarge. They are as follows: It is now contended in the petition that a certain receipt given by John Shaffer to Francis Clark, dated September 30, 1871, for that sum, to be applied “on his account to the estate of Patrick Clark,” and other evidence in connection, establishes the fact that appellant should he charged with it. An order is shown from the admin is-' trator to William Morris, directed to Francis Clark, requesting him to pay Morris this sum, “being amount due estate of Patrick Clark from you on judgment.”

Also the administrator, in his final report, credits himself with this item as follows by amount paid out as follows: “September 30, 1871. John Shaffer on judgment $273.35.”

It is claimed that this evidence proves that the appellant Eckley got the benefit of this amount and that it was not charged to him on the debtor side in his final account. But we think this is a misapprehension of the evidence. There does not appear to be any charge in the final report of the appellant of an item specifically covering this judgment. But the administrator charges himself with two promissory notes of $850, each given to him by Francis Clark, John Clark and Royal Ranncy, dated May 9, 1868, due in six and twelve months respectively, given as sale notes for sale of real estate left by deceased to pay debts. We think that the evidence pretty clearly shows that about §320 of the note due in six months was never paid, unless this sum of §273.35 be applied on that account.

It is true that John Clark "testifies that he paid the balance of the note in full on April, 1869, in Oquawka, and that it had been in his possession ever since until the winter or spring before his deposition was taken. But appellant and his attorney Taliaferro both swear that the note was put into the latter’s hands to collect and had never been taken out till just before the final report was made, November 21,1872, and that, to the best of their belief, it was filed with the papers as estate papers, and that only three payments had been made on it. Ail these payments, amounting only to §530, Taliaferro received and indorsed on the note in his own handwriting. But the appellant charged himself with the entire amount of the note in his final report.

A preponderance of the evidence shows that only that amount of the note had been paid, unless the §273.35 should be allowed against it. This is the effect of what was done by the settlement. The administrator charged himself in general account with the note, and took credit in the same account for this sum, as paid out for the benefit of the estate. The account, as rendered, was approved by the court and the administrator discharged, the court finding, in the final order, that the <£ administrator had completely settled the estate and there were no assets remaining in his hands.” This was jp7'ima facie evidence that everything had been completely settled. If it had been necessary to put this sum of §273.35, on the debtors’ side of the administrator’s account in addition to what was already there, it was the duty of the court to see that it was done, and;prima facie we must presume all was done that the law and the facts required. The presumption of law is in favor of administrator’s reports and allowances. People v. Lott, 36 Ill. 447; Bond v. Lockwood, 33 Ill. 212; Lupton v. Janney, 13 Pet. 381. In the latter case above cited Judge Story says: “Mothing is more clear than the general rule that ex pa/rte settlement of accounts of this sort in the Orphans’ Court, being matters within the knowledge and jurisdiction of the court, in the administration of assets, ar% prima facie evidence of their own verity and correctness; and the o?ius pro. landi is upon those who seek to impeach them.”

The evidence tending to show that the judgment was paid by Francis Clark, is not so strong as to overcome this presumption and the evidence introduced by appellant. The judgment itself is not satisfied of record; appellant and Taliaferro both swear, to the best of their judgment, it was not paid. Wm. Morris swears, to the best of his recollection, he gave no order to Shaffer on Francis Clark to pay the judgment to Shaffer and knows nothing about the order from Eckley to him on Francis Clark, set out in the record, and never saw it till the last week immediately prior to the time his evidence was taken.

Francis Clark has had an injury on his head that impairs his recollection. He swears he paid all the $175 account (supposed to have been with interest the amount of the judgment) to John Schaffer except $30, for which he gave his note, which he never paid. He swears Shaffer brought him an order from Morris. He would not pay any money to Eckley and this is why, as he swears, Schaffer brought the order from Morris to him. He knew nothing about the order from Eckley to Morris above referred to.

This eviden e, in our opinion, is not sufficient to establish the payment of the judgment by Francis Clark. After the lapse of so long a time from the approval of the final report and the discharge of the administrator to the" filing of the bill herein, the impression of the facts relating to the special items of account has become dimmed in the minds of the witnesses, and for this and other reasons the final settlement ought not to be lightly disturbed. Clear proof of substantial error should be required. John and Francis Clark, now parties-complaining herein, were present at the time of filing the last report or knew of it soon afterward, and this alleged error concerned them particularly, yet neither of them made any objection for a long time afterward, and Francis was in favor of letting the settlement stand.

All is said in our opinion, heretofore filed, as to the other items and the rules of law applicable, that we desire to say. We adhere to that opinion. The motion for a rehearing is denied.

Motion denied.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    The People of the State of Illinois, for use, etc., v. Silas Brumback et al.

      Dram Shops—Death Caused by Intoxication—Action on Bond of Liquor Dealers—Evidence—Conflict of—Instructions—Pleading.

    1. Where the evidence is sharply conflicting the instructions must accurately state the law of the case.
    2. An instruction which calls special attention to some particular part or parts of the evidence is erroneous.
    3. It is error to give an instruction which is not based upon the evidence.
    4. In an action brought on the bond of certain liquor dealers to recover damages for causing the plaintiff’s husband to become a drunkard and thereby causing his death while intoxicated, it his held: That an instruction from which the jury must have understood that the defendants were not liable, although the deceased was killed in consequence of being drunk from liquors furnished in whole or in part by the defendants, is erroneous; that the declaration, charging that he was killed by an engine and train of cars, would sustain a recovery if any part of the train struck and killed him; and that the admission of the opinions and surmises of certain witnesses, who saw the deceased after his death, as to the cause of death, was improper.
    [Opinion filed December 16, 1887.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Euans, for appellant.
    Messrs. Doyle, Morris & Pierson and J. B. Rice, for appellee.
   Welch, J.

This was an action of debt brought on a liquor bond. The declaration charges that the defendants, Silas Brumback and Morgan Hix, had obtained a license to sell and give away intoxicating liquors in the village of Milford in Iroquois County, and that they, with the other defendants, John Wood, Thomas Jones and Isaac Bennett, executed the bond sued upon; that during the time said bond was in force, said Brumback and Hix sold and gave away to William Bail'd, husband of Matilda J. Baird, the appellant, intoxicating liquors whereby they caused him to become a habitual drunkard; that on the 24th day of April, 1882, said bond still being in force, said Brumback and Hix sold and gave away to said William Bail'd intoxicating liquors, whereby he became intoxicated, and being so intoxicated went upon the railroad track of the Chicago & Eastern Illinois Railroad Company where it passes through said county, and while so intoxicated then and there was struck by an engine and train of cars on said railroad company’s track and killed; and that.appellant, then being his wife, was deprived of her means of support and sustained damages to the amount of $3,000. Plea of nil debit for all defendants and similiter. Trial and verdict for defendants. Motion for new trial. Motion overruled and judgment on verdict for the defendants, from which this appeal is taken. Various errors are assigned. There was a sharp conflict in the evidence upon the issues presented by the pleadings. In such case it was absolutely essential that the instructions given by the court should accurately state the law. Neuerberg v. Gaulter, 4 Ill. App. 348, and authorities cited; Stearns v. Reidy, 18 Ill. App. 582; Wabash Ry. Co. v. Henks, 91 Ill. 406; Cushman v. Cogswell, 86 Ill. 62; Nicholson v. Mitchell, 16 Ill. App-647; Harvey v. Miles, 16 Ill. App. 533.

The fifth instruction given for the appellee calls special attention to certain unimportant circumstances, and singles out particular testimony and calls special attention thereto. This form of instruction has frequently been declared vicious by our Supreme Court. In Callaghan v. Meyers, 89 Ill. 566, it was said: “ The practice would be pernicious to permit each party to ask an instruction on every item of evidence in the case, and, if this was sanctioned, to be consistent, we would be compelled to sanction such a practice. All know, and the jury fully understand, that all evidence admitted on a trial is for consideration, and to permit a single item or a few items to be selected and they especially directed to consider it, or them} gives too much prominence to such evidence to be fair to the other party, and we have so held in numerous cases.”

The sixth of appellee’s instructions told the jury “that to entitle the plaintiff to recover in this case, it must appear from the evidence that the death of William Laird was caused by the acts of the defendants, or one of them, as charged in its declaration, and that his death was not the result merely of accident.” The jury would have understood from this instruction, that although they believed from the evidence that the deceased was drunk from liquor furnished in whole or in part by the acts of the defendants, or some of them, as charged in the declaration, and whilst in that condition and in consequence thereof, he stumbled and fell as the train passed and was killed, yet the defendants would be excused. This is pot the law; defendants would be liable in such case. In Brannan v. Adams, 76 Ill. 331, 335, it was held: “ If the appellants sold Mitchell liquor that made him drunk, and whilst drunk from the liquor they sold him and as a consequence thereof he fell and broke his leg, and by reason thereof it became necessary that appellee, or some other person, should take-charge of him, and to be kept by him until he recovered, and appellee did so care for him, he is entitled to recover.” This instruction is erroneous upon another ground, that there was no evidence upon which to base it. Leckie v. Brown, 43 Ill. 372; Prescott v.Maxwell, 48 Ill. 82.

The seventh instructiqn for appellee told the jury they must not find for appellant unless Baird was killed by the engine. “ If the wounds were received in some other manner or resulted from some other cause then they should find for the defendants.” The declaration charged that he was struck and killed by a passing engine and train of cars. If any part of the train struck and killed him, under this declaration, appellant was entitled to recover.

We think, however, that by far the most serious and manifest error in the record was in allowing a large number of the witnesses, who saw the deceased after his death, to give their opinions and surmises as to how Laird came to his death. It can not be doubted but that this wholly incompetent testimony was calculated to and probably did influence the jury in And- • ing their verdict.

For the errors herein indicated, the judgment is reversed and the canse remanded.

Reversed a/nd remanded.


text:
    E. Sanford and George Wilkinson v. Cassa Kane.

      Mortgages—Power of Sale—Who may Execute—Usu^y—Equity—Legal Bights—Outstanding Title—Bight to Acquire.

    1. Where a mortgage, containing a power of sale, was given to secure a promissory note and the note has been assigned, the power can only be executed by the assignee of the note.
    2. The joinder of a wife in a deed by her husband, merely to release her inchoate right of dower, does not bar her from acquiring an outstanding title and asserting it against her husband’s grantee.
    3. Upon a bill filed to cancel a deed executed under a power of sale contained in a mortgage, and to be permitted to redeem, it is held: That the power was improperly executed by one who was not the assignee of the note; that the note was usurious; that the complainant, as one of the makers, can avail herself of the usurious character of the note; and that her interest in the property entitles her to redeem.
    [Opinion filed December 16, 1887.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    This was a bill filed by the appellee against the appellants to cancel a deed executed by Wilkinson to Sanford, to the southwest quarter of the southwest quarter of section 7, town 27 north, range 11 west, Iroquois County, and to be permitted to redeem from a mortgage of said premises, executed by Morris Kane and the appellee to Sanford, on the 20th of July, 1875.
    The bill alleges that on the 20th of July, 1875, Morris Kane borrowed of Sanford the sum of $475, for three years, and agreed to pay him, at the'Chemical National Bank, of New York, the sum of $500, with interest at ten per cent, semiannually; that the extra $25 was paid as a bonus for said money; that to secure the payment of said money, Morris Kane gave to Sanford his note for $500 and a mortgage on said premises, with power to sell the said property. Said note and mortgage was executed by Morris Kane and the appellee; that at the time of the borrowing of said money, and of the execution of the note and mortgage, Morris Kane was the owner of the said premises, and the appellee was his wife; that said note was indorsed by Sanford to Edgar Gr. Whittlesey, who had never indorsed the same to any one else; that on February 21,1876, Morris Kane conveyed said premises to John Kane for a valuable consideration, and that on October 3, 1881, John Kane and wife conveyed said premises to the appellee, and that she is now the legal owner of said premises; that Morris Kane paid on said note semi-annual interest at the rate of ten per cent, to and including the 20th of July, 1878; that Wilkinson, who claimed to be the assignee of the mortgage, advertised that he would sell said land at Watseka, at 2 o’clock p. m., on the 16th day of October, 1878; that at said sale Sanford was the purchaser, and Wilkinson executed to him a deed therefor; that Sanford immediately took possession, and has been, and now is, receiving the rents and profits therefrom.
    The bill alleges that no power of sale was vested in said Wilkinson under said mortgage; that no assignment of the note which it was given to secure was ever made to him; that no title passed to Sanford by the sale and conveyance of Wilkinson to him.
    The bill prays that an account may be taken of the amount due on said mortgage, and that she may be allowed to redeem on equitable terms, and that the deed from Wilkinson to Sanford be canceled and held for naught. Appellants’ answers deny usury, and deny that the loan was made by Sanford to Kane, but state that the loan was procured by Sanford, as agent-o£ Kane, from Whittlesey, who furnished the money, and that the amount furnished by him was §500. They deny that the mortgage was given to secure the payment of the note, and claim that they were independent of each other; deny that Sanford had any interest in the mortgage at time of sale. They admit that Sanford took possession, but deny that he receives any more from the rents than was expended in payment of taxes and to keep up the improvements. They claim that the sale made by Wilkinson to Sanford is valid. They deny that'appellee has any interest in the premises, and claim that she and her husband, on the 27th of March, 1879, conveyed said premises to J. 0. Parr by warranty deed, subject to this mortgage. Replication filed.
    The cause was heard on bill, replication and proof, March 24, 1884. The court finds Gassa Kane owner of the property at the time of filing of bill; that Morris and Gassa Kane gave a note of §500, and secured the same by mortgage; that said note was assigned to Whittlesey; that the mortgage was also assigned to Whittlesey by Sanford; that Whittlesey, by separate deed, assigned the same to Wilkinson, October 16,1879; advertised and sold to Sanford for §300 the said land; that Sanford has had possession and collected rents. The court further finds that the bill claims that the note embraced usury. The court decreed that the sale by Wilkinson to Sanford was null and void; that Gassa Kane had the right to redeem.
    The cause was referred to a master to take proof, and state account and report. Exceptions were sustained to the master’s final report, and he was ordered to restate the account. Appellants filed exceptions to the master’s second report, which was overruled by the court, and “decree that appellee pay to the clerk, within ninety days, §299.96, with interest at six per cent, from June 10, 1886, and all costs, the said sum to be for the use of defendants in such portions as the court shall at the next term of this court determine; and in default of payment, all the rights of appellee in and to the said land be, and the same is hereby determinedand it was further decreed that upon the payment of said sum and interest by said appellee, all right of Sanford and Wilkinson, or any one claiming by or through them to the property under said mortgage, should cease on the payment of the said money, and all of their rights to vest in the appellee. Defendants except and pray an appeal. Various errors are assigned.
    Mr. E. Sanfford, for appellants.
    Mr. Robert Doyle, for appellee.
   Welch, J.

The first question we deem material to be considered in this case, is, whether the power of sale contained in the mortgage has been properly exercised by a party authorized by law to execute it. There was at the time the mortgage was executed a note given to E. Sanford, the mortgagee, which note was by him assigned with the mortgage to Whittlesey. There is no claim made that Whittlesey assigned the note to Wilkinson, but it is claimed that he assigned the mortgage. As held in Mason v. Ainsworth, 58 Ill. 163, “ Neither the debt secured, nor the mortgage itself, was assignable at common law, nor have they been made assignable by any statute of this State. Only a certain class of dioses in action, such as notes, bonds, bills, and other instruments in writing, for the payment of a specific sum of money, are assignable by the terms of the statute. In equity the assignment of the debt will carry with it the mortgage.” “ Mortgages to secure indebtedness have never been regarded as assignable in the sense of negotiable paper so as to vest the legal title in the assignee.” “ The rule is settled, at least in this State, that such a power of sale must be executed by the original mortgagee, or in case the debt is of such a character that it may be legally assigned, so as to vest the legal title in the assignee, then the assignee himself must 'exercise the power.” Pardee v. Lindly, 31 Ill. 174. Whittlesey, to whom the note and mortgage were assigned, conld alone execute the power. If the mortgage was not given to secure a debt that was assignable, no assignment of the mortgage could vest the power of sale in an assignee. The power of sale would remain in and could be executed by the mortgagee. Although we are satisfied from the evidence that the mortgage in this case was given to secure the note, yet that fact is not important. If it was given to secure the note, it having been assigned to Whittlesey, the power could alone have been executed by him. If it was not given to secure the note, then the power of sale could only have been executed by Sanford, the mortgagee..

In neither view had Wilkinson the right to make sale of said premises under the power of sale in said mortgage; and his deed under said sale to Sanford must be held not to have passed the title.

It is also insisted by counsel for appellants that the court erred in finding the mortgage usurious. We are satisfied from the evidence that the money was borrowed from Sanford; that he deducted from the face of the loan five per cent.—four per cent., $20, for himself, and one per cent., $5, for his agent, and gave to Kane $475 and took his note and mortgage for the sum of $500, payable three years after date, with interest at ten per cent., payable semi-annually. That such transaction was usurious, we have no doubt. It is also insisted by counsel for appellants, that appellee had no interest in said property at the time of the sale.

This is a bill filed to redeem from the mortgage and claiming that there has been no valid sale under it, and asking that ■ the conveyance made under said pretended sale be set aside and held for naught. We have held that Wilkinson had no right to sell under the power in said mortgage, and that no title passed by his conveyance to Sanford.

The appellee derives her title to this property through a conveyance made by Morris Kane, February 21, 1876, to John Kane, and a conveyance from John Kane and wife to her, executed the third day of October, 1881.

It is insisted by counsel for appellant, that as appellee joined with her husband, Morris Kane, in a warranty deed, March 27, 1879, to John C. Parr to said property, said deed being subject to said mortgage, she could not acquire any title or interest in said property hostile to Parr; that whatever title she acquires would, under the deed to Parr, inure to him. We do not assent to this claim. The only interest she had in the property at the time of the conveyance was the inchoate right of dower. She is not responsible on the covenant of warranty in said deed; neither would she be barred from purchasing in an outstanding title, and asserting it as against Parr.

It appears from the evidence of the quit claim deed of Parr to Doyle of said premises, and of Doyle and wife to the appellee, that she is invested with whatever title or interest Parr had acquired through the deed of Morris Kane and the appellee to him. We hold that the deed of Morris Kane to John Kane divested Morris Kane of all title or interest in said premises.

There was no error in the holding of the court that the appellee had such interest in the mortgaged property as gave to her the right to redeem the same. This interest she had as grantee of the property from John Kane and wife. Neither was there error in holding that there was usury in the loan, and that the appellee could avail herself of it. This right was given to her as one of the makers of the note. Being in chancery she could avail herself of all her rights, either legal or equitable. The case of Essley v. Sloan, 116 Ill. 391, has no application. We do not deem it necessary to pass upon the other errors in detail, it is sufficient for us to say that we find no merit in any of them. The equity and law of the case are with the appellee. Finding no error in the decree it is affirmed.

Decree affirmed.


text:
    John H. Tedens v. Barrett B. Clark.

      Mortgages—Deed Absolute on •its Face—When a Mortgage—Bight to Bedeem—Costs.

    1. A deed absolute on its face will be considered a mortgage when it clearly appears to have been so intended when executed.
    2. In the case presented, it is held: That the deed in question is a morlg-age, and the complainant has a right to redeem therefrom; and that the court below should have ordered an account taken of the amount due.
    [Opinion filed December 16, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrenoe Dibell, Judge, presiding.
    On December '20, 1858, Michael Finlon and wife (from whom both appellant and appellee claim title) executed and delivered to the appellee, Clark, a warranty deed for the FT. £ of the S. E. £ and the FT. E. £ of Sec. 1, T. 37, B. 10,' Will County, Illinois, for the expressed consideration of $772. Said deed contained an error in description. The parties to it intending that the FT. £ of the W. £ of the S. E. £ of Sec. 1, and the FT. E. £ of' the S. W. £ of Sec. 1 only, should be conveyed. On the same day Clark executed an agreement to convey said premises to Finlon in fee simple, on the 20tli day of December, 1860, for $772. This agreement was intended only to embrace the eighty acres, as stated above, but the draftsman made the same mistake in the description as in the deed. Clark, to correct the mistake in the description in the Finlon deed to him, deeded to Finlon the east forty acres. On December 5,1861, Finlon and wife executed to H. H. Cody, as trustee, a trust deed upon all of the said FT. £ of the S. E. £ and the FT. E. £ of the S. W. £ of Sec. 1, and also upon part of the W. £, FT. E. £ of Sec. 2, T. 37 FT., B. 10, to secure three notes given to James Burns; one note for §52.50, one for §162.50 and one for §94.26. Said notes were payable three years after date, with interest at ten per cent, per annum. On March 7, 1863, a settlement was had between Clark and Finlon, and papers to the following effect were executed and passed to the respective parties: “This is to certify that Barrett B. Clark, of the town of DuPage, County of Will and State of Illinois, and Michael Finlon have settled all accounts, to this date, March 7, 1863. Michael Finlon.”
    “ This is to certify that Barrett B. Clark, of the town of DuPage, County of Will and State of Illinois, and Michael Finlon have settled all accounts to this date, March 7, 1863.”
    “Barrett B. Clark.”
    Finlon remained in possession of the land after the deed to Clark, and was in possession in 1864, when he went into the army. On his return from the army, in I860, he found John Weiss cultivating the west forty as tenant of Clark, and so continued to 1881. The east forty was never out of the possession of Finlon.
    On July 7, 1874, Finlon paid on the Burns notes, §200, which was the sole payment made on them. The notes were indorsed to appellant by Burns. Default having been made in their payment, he applied to H. H. Cody, trustee, to sell said premises. Notice of sale was given as required by law, and on July 25, 1883, sale of said premises was made, and appellant became the ¡purchaser for the sum of §1,900. On August 1, 1883, the trustee conveyed to the appellant said N. W. J of S. E. ¿ and N. E. ¿ of S. W. ¿ of said section 1, T. 37, B. 10, and Finlon, as his tenant, is in possession thereof. Appellant by his bill claims that the deed executed by Finlon and wife to Clark, on December 20, 1858, was a mortgage, and that it has been fully paid. And that said deed is a cloud upon his title, acquired through the sale under the trust deed of Finlon and wife to Cody, which ought to be removed, and that, if it should be held that Clark has not been satisfied or paid in full, then he claims he has a right to redeem by thé payment of what may justly be due and owing Clark on an accounting to be had. Appellee denies that the deed executed to him bjr Finlon and wife is a mortgage, and asserts that it was a conveyance in fee simple, and that he is absolute owner thereof; denies that appellant is entitled to any relief under his bill. The Circuit Court on hearing, dismissed bill, from which this appeal is taken.
    Mr. D. Blackman, for appellant.
    Mr. Benj. Olin, for appellee.
   Welch, J.

Was the conveyance of December 20, 1858, of Finlon and wife to appellee, an absolute sale and conveyance, or was it intended only as a security in the nature of a mortgage? The statute declares, that “every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.”

It has been repeatedly held by the Supreme Court that a deed absolute upon its face, is not to be considered as a “mortgage,” unless it be made to appear clearly, to have been so intended at the time of its execution. Sutphen v. Cushman, 35 Ill. 186; Lindauer v. Cummings, 57 Ill. 195; Price v. Karnes, 59 Ill. 276; Remington v. Campbell, 60 Ill. 516; Magnusson v. Johnson, 73 Ill. 156. Upon a careful examination of this record, we are of the opinion that the conveyance of December 20, 1858, of Finlon and wife to appellee, is a mortgage; that the original object of this conveyance as intended and understood by the parties was for the purpose of securing the sum of §772, due from the grantor to grantee.

Appellee states in his bill against Finlon and wife and John Weiss, filed April 25, 1868, and amendment filed and sworn to August 9, 1870, “that the original object of said conveyance was to aiford your orator security for his said debt; that to carry out this object your orator, at the time and on the occasion of the delivery to him of said deed of conveyance, made, executed and delivered to said Finlon an agreement bearing even date with said deed, to reconvey to him (said Finlon) said premises described in said deed, upon condition that the said Finlon should pay to your orator the amount so due him, on or before the 2d day of December, 1860.” The amount of money which Finlon owed, stated in the contract, was the sum of §772. The parties did not treat the conveyance as a sale. The grantor in the deed remained in possession and use of the property, as owner, after the deed was made, as he did before. Finlon says: “I did not leave the eighty acres after 1 gave the deed, and have not left them yet. I have had possession of the middle forty acres, between my home and the west forty, ever since I bought of the Canal Trustees.

“I was at home about 1864, and went into the army. After the deed to Clark, two or three years after, I was in the army about two years. When I came back I found John Weiss cultivating the west forty acres. After John Weiss went on this forty acres, down to 1881, Clark had it and rented it. I was occupying and using this eighty acres when I made the trust deed to Cody.”

Finlon and wife both state that they nnderstood'the conveyance to be a mortgage, intended only as security for the payment of the sum of §772, due the grantee. It is contended' that under a settlement made between the parties on the 7th day of March, 1863, the deed should be regarded as an absolute conveyance. The title of appellant is acquired under a sale made under the trust deed executed by Finlon and wife to Cody, on December 5, 1861. Bo agreement of Finlon made with Clark in 1863 could in any way affect or defeat the rights of appellant acquired under the Cody deed. Appellant, by his purchase under that deed, became the owner of the property, subject only to the mortgage of appellee, but could not defend against the mortgage on the ground of usury entering into its consideration. In Clark v. Finlon, 90 Ill. 245, the litigation was between mortgagor and mortgagee, and the consideration purged by the master of all usury, which was proper as between such parties. The decree of the Circuit Court, dismissing appellant’s bill, was erroneous. The court should have found that the conveyance of December 20, 1858, of Finlon and wife to Clark, to the premises in contro-, versy, to wit, the northwest quarter of the southeast quarter and the northeast quarter of the southwest quarter of section 1, town 37 north, range 10, east of the 3d P. M., Will County, -State of Illinois, was a mortgage, and as such the appellant had the right to redeem therefrom. An order should have been made, that an account be taken of the amount due Clark on said mortgage, on the basis of allowing to Clark the principal sum with interest thereon at the rate of six per cent, per annum, deducting therefrom all just credits, including in such credits all rents and profits received by Clark, or for which he may be accountable under the rule laid down in Mozier v. Norton et al., 100 Ill. 63, less such sums as Clark may have paid for taxes, and necessary repairs on said premises. If, on such accounting, nothing should be found to be due on said mortgage, it should be declared satisfied. But, if on such accounting anything should be found due on said mortgage, appellant is entitled to a decree giving to him the right to redeem, on the payment of the amount so found due, on equitable terms to be fixed by the court. Appellant should be required to pay the costs in the Circuit Court-

The decree is reversed and cause remanded for such other and further proceedings in conformity with this opinion as may be necessary and proper.

Since this appeal was taken the appellee has departed this life. His death having been suggested, his administrator was substituted as appellee.

Decree reversed and cause remanded, appellee to pay the costs of this court; costs to be paid in due course of administration.

jDecree reversed.


author: Wall, J.

text:
    William A. Boley v. Barnard Barutio.

      Landlord and Tenant—Tenants in Common—Sent—Implied Contract— Notice—Evidence—Error without Prejudice.

    1. The mere occupancy of the entire property by one of two tenants in common does not render him liable to account to his co-tenant for rent.
    2. The relation of landlord and tenant is not as readily inferred between co-tenants as between strangers, and whether such relation exists is a question of fact for the jury.
    3. A promise by a co-tenant, occupying the entire property, to pay rent, may be implied.
    4. Where one occupies the premises of another after receiving notice that he will be required to pay rent, he will be bound to pay such rent.
    5. An error in the admission of evidence, which could not have injured the appellant, is not a sufficient ground for a reversal of the judgment.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Tazewell County; the Hon. NT. W. Green, Judge, presiding. "
    Mr. William Don Maus and B. S. Prettyman, for appellant.
    There can be no recovery at law by one tenant in common against his co-tenant, who merely occupied the premises which both are entitled to possess.
    To render one co-tenant liable to another for rent, or use and occupation, there must be something more than occupancy of the estate by one and a forbearance to occupy by the other. The co-tenant, who merely occupies the estate, does no more than he has a right to do on his own account. 1 Washburn on Real Property, 2d Ed. 436; Sargent v. Parsons, 12 Mass. 149; Calhoun v. Curtis, 4 Met. 413; Chapin v. Foss, 75 Ill. 280; Sconce v. Sconce, 15 Ill. App. 169.
    Mr. T. N. Green, for appellee.
   Wall, J.

This was an action of assumpsit for use and occupation of a warehouse. The verdict was for plaintiff, for $1,020.17, upon which judgment was entered.

The plaintiff and defendant were tenants in common of certain lots in the city of Pekin, upon which they built an ice house at their joint expense. The plaintiff lives in St. Louis, the defendant in Pekin. According to the testimony of the plaintiff, a partition was run through or across the house in the year 1875, and thereafter, by mutual understanding of the parties, 'the south half was occupied by the plaintiff and the north half by defendant. The defendant had charge of filling the house with ice each year and was paid by plaintiff for filling his part at certain rates per ton. This continued for several years, and until December, 1882, when the plaintiff, learning that defendant was putting up inferior or thin ice, notified defendant not to put up any more such. Defendant had the plaintiff’s part about two-thirds filled when this notice was given and drew upon the plaintiff therefor, but the draft was not paid. Plaintiff says he notified defendant in 1883, after he put up the thin ice, that he would charge him rent for his half of the house. Defendant continued to use the whole house thereafter, and it is for this use of plaintiff’s part the present suit is mainly brought. A small item for tax and insurance paid a second time constitutes a part of plaintiff’s demand, but as to this there seems to be no controversy, and the only item in dispute is the rent.

There was some conflict as to the rental value of the ice house, and there was a sharp difference between the plaintiff and defendant as to the object and purpose of the partition dividing the building and as to the subsequent understanding of the parties. The defendant denied that he had been notified by plaintiff that rent would be charged for the south half.

Where two men own property in common, the mere fact that one occupies the whole property, does not render him liable to account to his co-tenant for rent, and generally the action for use and occupation will not lie unless the relation of landlord and tenant exists. The action is founded upon contract, express or implied. Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Ill. 24. But when it does not appear that the party is an intruder or trespasser on land, or that he holds it against the will of the owner, or that he is to enjoy it without payment of rent, the law will imply an agreement to pay reasonable rent therefor. Oakes v. Oakes, 16 Ill. 106.

The law will, in a proper case, imply such an agreement between co-tenants, though the relation of landlord and tenant would not be so readily inferred from occupation, in the case of a co-tenant, as in that of a stranger, and whether such relation existed would be a question of fact for the jury. Chapin v. Foss, 75 Ill. 280.

Where one occupies the premises of another after being notified that if -he does so he will be expected to pay rent, he is bound to pay such rent. I. C. R. R. Co. v. Thompson, 116 Ill. 159.

Applying these principles to the case as stated by the plaintiff, and as his evidence tended to prove, the verdict is right. While there was conflict in the testimony, it was the province of the jury to harmonize, if they could, and if not, to give credit to that which they believed the more worthy of it. We can not say that by this verdict any injustice has been done. On the contrary, we are inclined to believe it is in accordance with the merits of the case.

The action of the court in giving, modifying and refusing instructions, was in harmony with the views above expressed, and we find no error in that respect.

It is urged with some force that the court erred in admitting a letter written by B. C. Boley, who was the brother and at the time the agent of defendant in the transaction of many business matters, including, perhaps, this. The defendant denies that he authorized or knew of this letter, nor is it clear in what way it can be regarded as a part of anything done by the agent in behalf of his principal. We are, therefore, inclined to hold the letter was not properly admitted; but the only part of it which relates to this controversy is a statement that the defendant had filled the house partly with thin ice, but had stopped, because so notified by the plaintiff. We do not understand that this was denied by the defendant, and it would follow the admission of the testimony, if error, was not prejudicial, and should not work a reversal. The whole record considered, we have no doubt that if the jury properly weighed the proofs, as it is to be presumed they did, the verdict would have been the same if this letter had been excluded. The j udgment will be affirmed.

Judgment affirmed.


author: Conger J.

text:
    Bloomington Mutual Life Benefit Association v. William Blue.

      Life Insurance—Mutual Benefit Association—Wager Policy—Question for Jury—Ultra Yires—Practice.

      1. Where one insures his life for the benefit of a third person who has no pecuniary interest therein, the question whether the policy is a wagering contract is for the jury.
    2. The mere fact that the beneficiary has no pecuniary interest in the life insured does not render the contract void as against public policy.

      8. In a case involving the question whether a mutual benefit association, organized under the Act o£ January 13,1883, can defend an action on a policy issued for the benefit of one not a devisee or legatee of, nor in any way related to, the insured, on the ground that the contract was ultra vires, this court affirms the judgment of the court below, in order to have the question settled by the Supreme Court without delay.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Fifer & Phillips, for appellant.

      At common law the contract sued on is void on grounds of public policy, for the reason that Blue, at the time the insurance was effected, had no insurable interest in the life of Bailey.
    So far as we are aware this court has never passed upon this exact question. It has been held, however, in the case of Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill. 35, that a son not having any pecuniary interest in the continuance of the life of his father, could not legally have the father’s life insured for his (the son’s) benefit. Mutual Benefit Ass’n v. Hoyt, 46 Mich. 473.
    There are many cases which, by analogy and upon principle, as fully support the proposition as the Michigan case. These cases hold that a policy, when assigned by the person whose life is insured, is void in the hands of the assignee upon the ground of public policy, provided the assignee has no interest in the life insured. These authorities seem to us to decide the principle of law we contend for as effectually as though they arose upon the exact state of facts presented in this case.
    The authorities last referred to are as follows: Life Ins. Co. v. Sturges, 18 Kansas, 93; Gambs, etc. v. Covenant Mut. Life Ins. Co., 50 Mo. 44; Warnock v. Davis, 104 U. S. Reports,. 775; Canmack v. Lewis, 15 Wall. 643.
    The spirit and intent of the statute we contend is to prohibit, any one from becoming a beneficiary unless included in the class of persons named in the first section of the act. If we are correct in this, then the following authorities are in point, for no contract can have any binding force when made in. derogation of the provisions of the statute. Penn v. Bornman, 102 Ill. 523; Ky. Masonic Mut. Life Ins. Co. v. Miller, 13 Bush, 489; The Penn. Mut. Relief Ass’n v. Catherine F. Falmer, 87 Pennsylvania States Reports, 133; Van Buren v. St.. Joseph, 28 Mich. 399.
    The fact that Blue was not related to Bailey was not discovered by the agents of plaintiff in error until after the death of Bailey, and then the money which had been paid by Bailey and Blue in the way of assessments was tendered to Blue, together with the interest which had accrued.
    Messrs. Kerrick, Lucas & Spencer, for appellee.

      It is the well settled rule of law in this State that a corporation can not plead 'ultra vires to its own executed contracts. Bradley v. Ballard, 55 Ill.413; Chicago Building Society v. Crowell, 65 Ill. 453; Darst v. Gale, 83 Ill. 136; Ward v. Johnson, 95 Ill. 215; E. St. L. v. E. St. L. G. L. & C. Co., 98 Ill. 415; P. & S. R. R. Co. v. Thompson, 103 Ill. 187; West v. Madison Co. Agricultural Board, 82 Ill. 205.
    And the great weight of authority outside of this State is to the same effect. Morawetz on Private Corporations, Vol. 2, p. 689; Green’s Brice’s Ultra Vires, 784; Gold Mining Co. v. National Banks, 96 U. S. 640; National Bank v. Matthews, 98 U. S. 621; Perkins v. Portland, etc., R. R., 47 Me., 573; Rutland & B. R. R. Co. v. Procter, 29 Vt. 93; Attleborough N. Bank v. Rogers, 125 Mass. 339; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Oil Creek, etc., R. R. Co. v. Penn. Trans. Co., 83 Pa. St. 160; Bank v. Hammond, 1 Rich. L. 281; Hozlehurst v. Savannah, etc., R. R. Co., 43 Ga. 13; So. L. Ins. Co. v. Lanier, 5 Fed. 110; Underwood v. Newport Lyceum, 5 B. Mon. 129; Hayes v. Galoin Gas & Co., 29 Ohio St. 330; State Board of Agriculture v. Citizen Street R. R., 47 Ind. 407; Germantown Ins. Co. v. Dhein, 43 Wis. 420; Thompson v. Lambert, 44 Iowa, 239; National Bank v. Ins. Co., 41 Ohio St. 1; Union Water Co. v. Murphy’s Flat, 22 Cal. 721; Hall Manuf. Co. v. American R. R. Co., 48 Mich. 331.
    The contract is not void as^gainst public policy. '’’’Johnson v. Van Epps, 110 Ill. 551; Johnson v. Van Epps, 14 Ill. App. 201; Langdon v. U. M. L. Co., 14 Ill. App. 272; The Provident L. Co. v. Baum, 29 Ind. 236; Campbell v. N. E. M. Co., 98 Mass. 381; Ætna L. M. Co. v. Francis, 94 U. S. 561; Conn. M. L. Ins. Co. v. Shafer, 94 U. S. 457; Olmstead v. Keys, 85 N. Y. 597; Forbes v. American M. L. Ins. Co., 15 Gray, 249; Lemon v. Phoenix M. L. Ins. Co., 38 Conn. 294; Rawls v. American M. L. Ins. Co., 27 N. Y. 283; Fairchild v. N. E. M. L. Ins. Ass’n, 51 Vt. 613; Brockway v. M. B. Co., 9 Fed. B. 249; Warnock v. Davis, 104 U. S, 775; Clark v. Allen, 11 B. I. 439.
   Conger J.

The facts disclosed by this record are, that one William B. Bailey, desirous of effecting an insurance upon his own life in the sum of $5,000, for the use and benefit of appellee, Blue, made application to appellant for that purpose, and a life benefit certificate was, in October, 1883, issued to said Bailey, by which it was provided that such sum of $5,000 should be paid to Blue within sixty days after the death of said Bailey. Bailey died, and suit was brought by appellee, Blue, upon the certificate, whereupon appellant filed four special pleas. In the first of said pleas it is averred that defendant is a corporation organized and doing business under an Act of the Legislature, approved June 18, 1883, in force July 1,1583; that the plaintiff, Blue, is not a legatee or devisee of the said William R. Bailey, and is not related to said Bailey either by affinity or consanguinity, etc.; that the defendant, by virtue of the act under which it was organized and doing business, was only authorized to furnish life indemnity and pecuniary benefits to the widows, orphans, etc., of deceased members, by means whereof said life benefit certificate was and now is null and void.

The pleas all admit that the sum of $88.75 is due plaintiff as the amount of membership fee and special assessments paid defendant by Bailey and Blue, which sum defendant offered to pay to plaintiff with interest, but that such tender was refused. The second plea is like the first, except that it contains additional averments. It is averred that the object for which the defendant corporation was organized, as appears from its articles of incorporation, is as follows: Cl The object for which it is formed is to provide and equitably distribute at minimum cost, a fund devoted to the relief of widows, orphan heirs and devisees of deceased members.” It is also averred in this plea that Blue was not a creditor of Bailey and had no pecuniary interest in his life, and had no well founded expectation of pecuniary advantage to be derived from the continuance of the life of Bailey. This plea also contains a copy of the constitution and by-laws of defendant.

In the third plea the statute and the defendant’s articles of incorporation are set up as a defense, and in the fourth plea the articles of incorporation and the fact that Blue had no pecuniary interest in the continuance of the life of Bailey, are the defense interposed.

To these pleas plaintiff filed a general demurrer, hut before the court passed upon the same the common counts were withdrawn from plaintiff’s declaration. This left the two special counts, to which defendant had pleaded as above stated. The court then sustained the demurrer to the pleas and rendered judgment for the plaintiff, to which judgment and ruling of the court defendant, by its attorneys, excepted, and, standing by its pleas, brings the case to this court on appeal and asks a reversal of the judgment of the court below for the error committed in sustaining the demurrer to said pleas. The first section of the Act of June 18, 1883, under which the appellant corporation organized and is doing business, is as follows:

“Section 1. Beit enacted by the people of the State of Illinois, represented in the General Assembly: That corporations, associations or societies, for the purpose of furnishing life indemnity, or pecuniary benefits to the widows, orphans, heirs, or relatives by consanguinity or affinity, devisees or legatees of deceased members, or accident or permanent disability, indemnity to members thereof, and where members shall receive no money profit, and where funds for the payment of such benefits, shall be secured, in whole or in part, by assessment upon the surviving" members, may be organized, subject to the conditions hereinafter provided.”

It is contended by appellant there can be no recovery in this case for two reasons: First, that the contract of insurance was against public policy; and secondly, that appellee docs not come within the class bf persons for whose benefit insurance may be effected, as provided by the Act of June 18, 1S83: and that, therefore, the contract of insurance was beyond the power of the company to make, and was void.

Upon the first question, we do not think the contract void as against public policy, but we are satisfied with the conclusions reached by Mr. Justice Pillsbury in Johnson et al. v. Van Epps, 14 Ill. App. 201, 215, and adopt the following language from the opinion in that case, as expressing our views upon this point: “Itwould seem from the above authorities that where a person takes out an insurance upon his own life, for the benefit of some third person, who may not have an insurable interest in the life insured, the question whether it is a gambling or wagering policy is in every case one for the jury to determine under proper instructions, and if it be found that the insured has been the principal actor in the transaction, and has entered into it with an honest purpose to aid one whom he deems a proper object of his bounty, the transaction will be sustained and the beneficiary be entitled to the money; but, on the other hand, if it appear that the party insured is but a mere nominal party, and he procured the insurance for the purpose of giving the beneficiary the advantage of such insurance upon his life, when the beneficiary conld not obtain it in his own name, the transaction will be condemned, and the policy declared void.” The pleas seeking to raise this question as a defense, do not allege any facts upon which an issue could be formed as to whether Bailey entered into the contract ■with an honest purpose to aid one whom he deemed a proper object of his bounty, but rely upon the one ground, that appellee was not a creditor of Bailey, had no pecuniary interest in his life and had no well grounded expectation of pecuniary advantage to be derived from the continuance of the life of Bailey.”

They were, therefore, defective, and the demurrer to them was properly sustained.

The second objection, that the contract is ultra vires, is attended with much greater difficulties. It is urged by appellee in reply to this objection, that if the contract were conceded to be beyond the power of the company to execute by a strict construction of the act under which it is acting, still it may be considered as the settled law of this State, that a corporation can not plead ultra vires to its own contracts, and refer to the cases in the Supreme Court where, under certain circumstances, the doctrine has been so held. In view of the great difficulty of the question and considering the importance of an early and final adjudication of it, we shall affirm the judgment of the court below, so that the parties, if they desire, may proceed without delay to have the question settled by the Supreme Court.

Judgment affirmed.


text:
    Peachy Q. Harrison v. Sarah M. Ely.

      Trespass for Assault and Battery—Damages— Whether Excessive—Instructions.

    In an action of trespass for assault and battery 'this court finds no error in the instructions, and declines to interfere with a verdict for $1,000 as excessive, the question involved, in view of the conflict of evidence, being for the jury.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. McGuire & Colby and Bradley & Bradley, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Wall, J.

This was an action of trespass for assault and battery. The jury found the defendant guilty and assessed the damages of the plaintiff at $1,000.

A motion for a new trial was interposed, which was overruled by the Circuit Court, and judgment was entered for the plaintiff upon the verdict. The evidence leaves no doubt that the appellant committed an assault and battery upon the appellee, but how far he may have been provoked by the manner and language of the appellee, and how seriously she was injured, were the important questions of fact to be determined by the jury.

If the version given by the appellee was the true one, and if she has suffered as she says, the verdict is by no means unreasonable. We do not understand counsel to insist that appellant was free from blame, but that the damages allowed are excessive ; and we assent to this if the version given by appellant is the true one, and if, as he seems to believe, there was no real injury sustained by the appellee, and that the injury complained of is either imaginary, due to hysterics or simulated.

Of these matters the court and jury below were so much better able to judge by seeing and hearing the respective parties and witnesses than we are, that it would be manifestly improper to interfere with the judgment for this cause. It must be assumed that the court below duly considered its responsibility in refusing the motion for a new trial and would not have sustained the verdict if the evidence, when considered in the light of the personal demeanor and appearance of the witnesses, did not warrant it.

The oft repeated and familiar considerations generally applicable, are especially so in this case. It may be that the jury and the court were both mistaken, but, if so, the mistake went only to the amount which the appellant was liable for. We are not justified in holding there was error in this respect.

The first, second and third instructions for plaintiff are subjected to some criticism by counsel, upon the ground that they are too indefinite. As to the first, it is said that while an assault may be wrongful and in an angry manner, it may be unintentional and without anger toward the person injured. It is clear that, as applied to the case in hand, the instruction is not objectionable in this respect. The appellee was, no doubt, the intended object of an angry assault, though, as suggested heretofore, her own conduct, while not justifiable, may have mitigated the offense. It is said, further, the instruction is too general in saying the plaintiff might recover for the damages sustained in consequence of the assault, but we see no objection to it on this account. Objections not more forcible as to the second and third, need not be stated. As to the fourth and fifth, it is urged they are faulty in advising the jury that plaintiff was entitled to punitive damages; citing W., St. L. & P. Ry. v. Rector, 104 Ill. 296.

They do not so read. They inform the jury that such damages may be given, but there is no intimation that, in any view of the case, plaintiff may claim it as a matter of right.

Finding no error in the record, we are constrained to affirm the judgment.

Judgment affirmed.


author: Conger, J.

text:
    Alice A. Comer, Administratrix, et al., v. Sater C. Comer et al.

      Trusts—Declaration of Trust in Government Bonds—Agreement—Evidence—Execution of Instrument—Proof of—Witnesses—See. 2, Chap. 51, It. S.

    Upon a bill filed by heirs of the owner of certain Government bonds, to recover an interest therein, it is held: That by a written direction to the bank where the bonds were on deposit for safe keeping, the deceased placed the bonds in trust, first, for himself, during life, next, to his wife, to have the interest during life, and then the principal to revert to his heirs; that by an agreement between the widow and one of the heirs, the former recognized the trust crealed by her husband; that proof of the execution of the original instrument was unnecessary, the execution of the other, to which the first was attached as an exhibit, being proved; and that the custodian of an agreement between two of the heirs was not their agent in any such sense as would make the survivor a competent witness to facts testified to by him, within the meaning of the second exception to Sec. 2. Chap. 51, R. S.
    [Opinion filed August 26, 1887.]
    Appeal from the Circuit Court of Hancock County; the Hon. William Marsh, Judge, presiding.
    On the 10th day of March, 1884, appellants filed their bill in the Circuit Court, therein alleging that on the 28th of December, 1866, Samuel Comer, since that time deceased, had on deposit for safe keeping in the hands of George C. Anderson & Co., bankers, of Keokuk, 7-80 United States bonds to the amount and value of §6,000. That on said 28th day of December, 1866, said Samuel Comer executed and delivered to said George C. Anderson & Co. an instrument in writing of that date, as follows, to wit:
    “ Hamilton, December 28, 1866.
    “ George C. Anderson & Co.,
    “ Gents:—Of the seven-thirty Government bonds of mine in your hands, I hereby assign to my wife, Harriet Comer, $6,000, she to draw the interest of the same, you keeping possession of the same, and when matured to convert into five-twenty Government bonds, first series, to remain in youi hands, my wife to draw the interest until her death; have no control of the principal, so far as disposing of them is concerned; the bonds at my death to revert to my heirs. The above assignment to take effect at my death) I controlling them in the meantime.
    “ (Signed.) Samuel Comee.
    “ Will you be kind enough to file this with my bonds.”
    That said declaration of trust made by Samuel Comer, and said bonds remained in the hands of George C. Anderson & Co. until July, 1867, when Samuel Comer died in Hancock County, Illinois, intestate, leaving personal and real estate of the value of $25,000, but leaving no debts. That said declaration of trust remained in full force and said bonds were a trust fund in the hands of said George C. Anderson & Co. and their successors in trust, to hold the same and pay the interest accruing thereon to said Harriet Comer during her natural life, and at her death should become the property of the heirs of Samuel Comer.
    That Samuel Comer left surviving him said Harriet Comer, his widow, and two sons, Sylvester L. Comer and the defendant, Sater C. Comer, his only heirs at law. That no administration of the estate of Samuel Comer was ever granted to any one.
    That said bonds remained in the hands of said George C. Anderson until the firm was dissolved by the death of Anderson and then came into the possession of Boner, Barclay & Co., successors of said George C. Anderson & Co., and continued in the possession of Boner, Barclay & Go. until the 29th day of June, 1871, when the said Sylvester L. Comer and Harriet Comer executed an instrument in writing, in the words and figures following, to wit:
    “Whereas, Samuel Comer, deceased, before his death, deposited with George O. Anderson & Co. $6,000 in Government bonds under the trust and condition specified in the paper, a copy of which is hereto attached, for the benefit of Harriet Oomer, his wife, during her life, with remainder of the principal to the heirs of said Samuel Comer. Now, for the purpose of other and better investment and for a valuable consideration to each of us moving, it is agreed by the said Harriet Comer and by Sylvester L. Comer and Sater C. Comer, the only heirs of said Samuel Comer, that the said George 0. Anderson & Go. and. their successors and all members of said firm are hereby released from said trust, and the said Boner, Barclay & Co., with whom said bonds are on deposit, are authorized and empowered to deliver and pay over to the said Harriet Comer the said $6,000 of bonds.
    „ ‘‘Witness our hands this June 29th, 1871.
    “ Harriet Combe.
    “S. L. Combe.
    “ (Witness) E. C. Parrott.”
    That a copy of said declaration of trust made by Samuel Comer was attached by Sylvester L. and Harriet Comer to said instrument, signed by them as set forth above.
    That on said 29th of' June, 1871, said Sylvester L. Comer and Harriet Comer took said bonds to the amount of $6,000, or other Government bonds into which they had been converted of that amount,from the hands of Boner, Barclay & Co., and deposited them for safe keeping in the Hancock County National Bank, of Carthage, Illinois.
    That after said bonds were left in said Hancock County National Bank, one of them of $1,000, was sold by said Harriet Comer, and the proceeds thereof being $1,000, was loaned by her on note and mortgage. And the remaining $5,000 of said bonds was also converted and the proceeds thereof invested in United States four per cent, bonds, payable at the pleasure of the Government, after July 1, 1907. That said note and mortgage and $5,000 of United States bonds, being the present form of said trust fund, are yet on special deposit in said bank, defendant herein.
    That Sylvester L. Coiner died March 3, 1879, in Hancock County, Illinois, intestate, leaving the complainants, Alice A. Comer, his widow, and Harriet L. Hazen, Samuel H. Comer, and Frank G. Oomer, his only children and heirs. That said Alice A. Comer is administratrix of the estate of said Sylvester L. Comer, and lawful guardian of said Samuel H. and Frank G. Comer.
    That Harriet Comer, widow of Samuel Comer, died April 25, 1883, leaving a will, by which Sater C. Comer is made sole legatee of all her estate, and executor of the will. That said will was proved and letters testamentary issued to said Sater.
    Complainants claim that upon the death of said Samuel Comer, one-half of said bonds was vested in said Sylvester L. Comer, subject to the right of said Harriet Comer, widow of Samuel Comer, to take and enjoy the interest accruing thereon during her natural life, and that upon the death of said Harriet Comer, said half of said trust fund in its present form became the property of, and part of the estate of said Sylvester L. Comer, and as such subject to distribution to complainants as his widow and heirs. That all debts due from the estate of said Sylvester L. Comer have been fully paid.
    The bill prays that half of said trust fund may be delivered to Alice A. Comer, as administratrix of the estate of said Sylvester L. Comer, or to his said widow and heirs according to their respective rights.
    Exhibit A, will of Harriet Comer. Answer of Sater C. Comer, as an individual and as executor of the will of Harriet Comer, filed on the 29th day of April, 1884.
    The answer admits that Samuel Comer died intestate as stated in the bill and left him surviving Harriet Comer, his widow, and Sylvester L. Comer, and respondent, Sater C. Comer, his children and only heirs at law. Denies that Samuel Comer had any interest in the bonds in the bill mentioned, at the time of his death. Denies that any interest in said bonds descended to Sylvester L. Comer. Admits that Sylvester L. Comer died as stated in the bill and left him surviving complainants, his widow and only children and heirs at law, and that administration was granted on his estate as stated in the bill. Denies that complainants have any interest in said bonds or proceeds thereof. Avers that said bonds and proceeds were the property of Harriet Comer, and that respondent now owns the same as legatee under her will. The answer of the Hancock County Hational Bank, Carthage, filed April 30, 1884. That Harriet Comer deposited bonds to the amount of §7,000 in said bank of the 29th of June, 1871. Admits that said bonds to the amount of §5,000 and the note and mortgage of §1,000, are held by said bank. Has no knowledge as to who owns said bonds, note and mortgage.
    General replication to answers filed May 2, 1884. Decree of court dismissing bill, and that defendants recover costs, rendered on the 24th day of October, 1885, at October term.
    Messrs. Mack, Baird & Mack, for appellants.
    Messrs. Manier & Miller and Hooker & Edmonds, for appellees.
   Conger, J.

Before considering the legal effect of Samuel Comer’s letter to Geo. C. Anderson & Co., of date December 28, 1866, and the instrument signed by Harriet and Sylvester L. Comer, of date June 29, 1871, we will notice the objection that is made, that there is no proof in the record of the original execution of the one of date December 28, 1866.

The second instrument, bearing date June 29, 1871, is proven by the testimony of Lewis C. Stevenson, he stating positively that the signature thereto is the genuine signature of Harriet Comer, and the instrument is made an exhibit to his deposition, to which instrument is attached what purports to be, and what is, clearly declared to be by said instrument, a copy of the letter of December 28, 1866.

We are of opinion that this copy attached to and clearly referred to in the instrument, signed by Harriet Comer, as to her and all claiming under her, was conclusive evidence of the original existence of Samuel Comer’s letter, of December 28, 1866, and superseded the necessity of introducing any other evidence to establish it. Carver v. Jackson, 4 Pet. 83; Green-leaf on Evi., Vol. 1, Sec. 97.

The instrument executed by Samuel Comer was as follows:

“Hamilton, December 28, 1866.
“ Geoege C. Andeeson & Co.

“Gents:—Of the seven-thirty government bonds of mine in your hands, I hereby assign to my wife, Harriet Comer, six thousand dollars, she to draw the interest of the same, yon keeping possession of the same, and when matured to convert into five-twenty government bonds, first series, to remain in your hands, my wife to draw the interest until her death ; have no control of the principal so far as disposing of them is concerned; the bonds at my death to revert to my heirs.

“ The above assignment to take effect at my death, I controlling them in the meantime.
“(Signed) Samuel Comer.

“ Will you be kind enough to file this with my bonds?” The only difficulty in determining the meaning and effect of this instrument, exists in the clause: “The above assignment to take effect at my death, I controlling them in the meantime.”

While the whole instrument, including the foregoing clause, is not entirely clear, we are inclined to construe it to mean that Comer intended to declare the bonds in trust, first to himself to have the interest thereon during his life, next to his wife, if she survived him, she to have the interest during her life, and then the principal to revert to his heirs. That he meant by the words, “ the above assignment to take effect at my death, I controlling them in the meantime,” to vest the legal title to the bonds in George C. Anderson & Co. as trustee, for himself, his wife, and heirs, immediately, yet his wife and heirs were to take no benefit therefor, nor exercise any control over the fund or its interest, until his death. But whatever of doubt there may be as to the true meaning of this instrument, there can be none as to that of date June 29, 1871, executed by Harriet Comer and Sylvester.L. Comer, which is as follows :

“ Whereas, Samuel Comer, deceased, before his death deposited with George C. Anderson & Co. $6,000 in government bonds under the trust and conditions specified in the paper, a copy of which is hereto attached, for the benefit of Harriet Comer, his wife, during her life, with remainder of the principal to the heirs of said Samuel Comer. How, for the purpose of other and better investment and for a valuable consideration to each of us moving, it is agreed by the said Harriet Comer and by Sylvester L. Comer and Sater C. Comer, the only heirs of said Samuel Comer, that the said George C. Anderson & Co., and their successors, and all members of said firm, are hereby released from said trust, and the said Boner, Barclay & Co., with whom said bonds are on deposit, are authorized and empowered to deliver and pay over to the said Harriet Comer the said $6,000 of bonds.

“Witness our hands, this June 29, 1871.
“Harriet Comer, “S. L. Comer.
“(Witness) B. C. Parrott.”

To which was attached a copy of the original letter of Samuel Comer. Here was a clear recognition by Harriet Comer, of the trust created by her husband, and was binding upon her; and as Sater Comer claims the one moiety of the principal of the fund by virtue of Harriet Comer’s will, he can have no greater interest in it than she had at her death.

We are therefore of opinion that upon the death of Harriet Comer the principal of said fund vested, the one-half in Sater Comer, and the other half in the widow and heirs of Sylvester L. Comer, deceased.

It is insisted because an instrument in writing was left in the hands of Mr. Buggless, by the two brothers, as the custodian thereof, that he thereby became their agent, and when called as a witness as to certain statements of Sater, that thereby Sater became a competent witness to the same conversation and transaction by virtue of the second exception to the second section of chapter 51. We do not concur in this conclusion. Buggless was not the agent of either party in any such sense as contemplated by the statute, and it was therefore error to permit Sater to testify.

While there is some conflict in the statements proven of Harriet Comer, we are satisfied, after considering them' all, that she understood that she had but a life interest in this fund, but whether she so understood or not, would make no difference, as the rights of all parties were fixed by the original declaration of trust, and her deliberate recognition of its terms by her instrument of June 29, 1871.

The decree of the Circuit Court will therefore be reversed and the cause remanded, with directions to the Circuit Court to enter a decree in accordance with the prayer of the bill.

Reversed and rem<mded with directions.


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    John J. Bonnet et al., Partners, v. Henry O. Gladfelt.

      Contractors—Action for Labor and Material—Conflict of Evidence— Question for Jury—-Instructions—Trial—-Witnesses—Discretion—Misconduct of Juror.

    1. Where the questions involved are mainly of fact and the evidence is conflicting, this court will not interfere unless some substantial error has intervened.
    2. In an action of assumpsit for labor and materials by a contractor who had been displaced by the defendants before the completion of their build-in", it is held: That there was no error in allowing the plaintiff to refer to a memorandum of items and charges taken from his books; that the court properly refused to allow the cross-examination of a certain witness to extend to a matter not covered by the examination in chief; that an objection calling for an expression of opinion by another witness was properly sustained; that there was no abuse of discretion by the court in refusing the application to recall a witness, after a day or more, to make an additional statement in regard to a matter about which he was interrogated but could give no definite reply when first examined; that there was no error in giving and refusing instructions; and that the charge of misconduct of a jurrr is not sustained.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. John H. Williams, Judge, presiding.
    Messrs. Almeron Wheat and William W. Berry, for appellants.
    Messrs. Carter & Covert, for appellee.
   Wall, J.

This was an action of assumpsit by the appellee against the appellants for labor and materials furnished in the rebuilding of a certain foundry which had been partially destroyed by fire. The defendants filed pleas of non-assumpsit and set-off on which there was issue. The case was tried by jury resulting in a verdict for the plaintiff for $511.95, and. the court after refusing to grant a new trial rendered judgment accordingly.

It appears, from the evidence, that a written contract was entered into by which the appellee was to do the work according to certain specifications for $1,050 by the 10th of March, 1883, and that the architect, Tubbesing, should have power to supervise the work and accept or reject the same, and that his decision should be binding on both parties. The work progressed nearly to completion, and payments, amounting to some $500, had been made upon the certificates of the architect when the. appellants took charge of the building, employed another man to finish it and appropriated the materials of the appelleeg -consisting of brick, mortar, etc., to his own use.

It was insisted by appellee that this action on the part of appellants was wholly without excuse, that he was ready and willing to carry out his contract, and, therefore, as he was prevented from so doing by appellants without fault on his part, he is entitled to recover the reasonable value of his labor and materials, including the value of the materials left by him and by appellants used in completing the work.

On the other hand the appellants insisted that he did not properly do the work and that the architect so informed him and refused to accept it, and that, after waiting a sufficient time for him to make such changes and amendments as were required by the architect, they did, as they lawfully might on that state of facts, resume possession and control of the property and cause the work to be finished, and that in so doing it became necessary to tear down and rebuild a part of the work done by him and by reason thereof and of the failure to have the work done by the time fixed in the contract they sustained damages larger in amount than the claim of the plaintiff.

The testimony was conflicting and voluminous and it was a fair question for the jury to determine whether the plaintiff had substantially complied with the contract and had been improperly prevented from completing it.

There was abundant proof to justify the plaintiff’s view of the case considering only that introduced by him while that of defendants considered alone would, as certainly, support their view. It follows that, unless the court committed some substantial error calculated to prejudice the appellants, we can not interfere.

It is urged that the court erred in not permitting the defendants to ask the witness Gentemann, on cross-examination, “whether all the defective parts of the west wall were taken down before he commenced to rebuild.” This was not, strictly speaking, cross-examination, as the witness had not been examined on this point in chief; nor does it appear that he was possessed of the information necessary to answer the question, as he worked there only four or five days, and that after the first story was up. We can not say that there was error in this ruling.

Complaint is made that the plaintiff was permitted to refer to a memorandum, drawn from his books, to refresh his memory in regard to the amount due him for work and materials furnished. This memorandum consisted merely of the items and charges for each, for which he sought to recover. There was no error in allowing such reference, 1 Gr. Ev., Sec. 436 ; C. & A. R. R. Co. v. Adler, 56 Ill. 344.

The court refused to permit the witness Steinbach to be recalled to make an additional statement in regard to a matter about which he ivas interrogated, but could give no definite reply when he was first upon the stand, and of this ruling complaint is made. It was within the sound discretion of the court to allow or refuse the application and as some time, a day or more, had elapsed, it does not appear that there was any abuse of discretion.

It is also objected that the court sustained an objection to a question put to the witness Heidbreder. The question called for an expression of opinion as to what would be neces. sary, in order to rebuild the wall in a good and workmanlike manner. The witness had already stated the facts within his knowledge, as to the appearance and condition of the wall. He had stated that he had followed the business of brick-laying for twenty-five years. Whether his experience was such as to enable him to pass an opinion upon the point involved he did not state, and there is nothing from which it could necessarily be inferred that he was competent to give the desired opinion. On turning to the record, and reading the evidence of this witness, we are satisfied that he had, substantially, answered this question, and that there is but little, if any ground of complaint in this regard, even if it were conceded that he had shown himself an expert and competent as such to answer the question referred to.

There was no such error here as to justify a reversal of the judgment. '

The action of the court in giving and refusing instructions is next urged upon our attention. We have carefully considered this point in the light of the somewhat elaborate arguments of counsel, and deem it necessary to say merely, that in our opinion the jury were fairly and fully instructed upon the issues to be tried. We find no improper instructions given for plaintiff, and we find no proper instructions asked by defendants refused or not sufficiently embodied in others which were given. The eighth was properly refused, because based upon an' unsound construction of the contract.

It is urged finally, that the court erred in not setting aside the verdict because of improper conduct of one of the jurors in riding home from the court house one evening in the wagon of and along with the plaintiff. After a careful reading of the affidavits and counter-affidavits submitted upon this point we are satisfied that the court properly disposed of it. There was no reason to believe that the juror was influenced in his verdict by .what occurred as disclosed by the affidavits. The whole case considered, it must be apparent that the controversy involves, mainly, questions of fact which were fully tried before the jury and upon which they have rendered their verdict. It does not appear that any substantial error has intervened or that another trial would bring a different result, nor can we see that any injustice has been done. The judgment is affirmed.

Judgment affirmed.