author: Per Curiam.

text:
    The Warsaw Milling Company v. John M. Berry.

      Sales—Wheat—Refusal to Accept—Damages.

    In an action brought to recover damages sustained in consequence of a refusal by the purchaser to receive a carload of wheat, this court declines to interfere with a verdict for the plaint,ill.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. O’Harra & Scofield, for appellant.
    Messrs. Sharp & Berry Bros., for appellee.
   Per Curiam.

This was a suit originally commenced before a justice of the peace, and, upon appeal to the Circuit Court, appellee recovered a judgment for $76.29.

It was brought to recover damages sustained by appellee in consequence of appellant’s refusal to receive a car load of wheat sold to it by appellee.

The whole controversy turns upon the question whether or not the car of wheat was of the character bought.

It is insisted by appellant that when the car reached Warsaw it was damp and musty, while on the part of the appellee it is contended that the wheat was of the character required by the contract when it was shipped at Carthage.

We have carefully examined the testimony in the record and find no good reason for interfering with the conclusion reached by the jury. A question of fact like the one in dispute in this record is one that a fair-minded jury, who have the opportunity of hearing the witnesses and observing their manner of testifying, would be more likely to solve correctly than we could from an inspection of the evidence as it appears in the record.

There is no evidence of prejudice or passion on the part of the jury, and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    Town of Nokomis v. Martin Harkey.

      Municipal Corporations—Nuisance—Prosecution under Ordinance— Liability of Town for Costs.

    Upon (he dismissal of a prosecution under an ordinance, it is improper to render judgment against the municipal corporation for costs.,
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Montgomery County; the Hon L. A. Creighton, Judge, presiding.

      Messrs. Pepperdine & Jett and James M. Truitt, for appellants.
    Messrs. Lane & Cooper, for appellee.
   Conger, J.

This was a prosecution against appellee for keeping a nuisance, brought under the ordinances of the town before the police magistrate, and upon an appeal to the Circuit Court the prosecution was dismissed and judgment for costs was rendered against the town.

The propriety of such judgment for costs is the only question we are called upon to decide.

These prosecutions are of a quasi criminal nature. They are not 9]ways brought, by the authority of the town, but may be set in motion by any one filing a complaint, and, like the criminal laws of the State, are for the purpose of preserving the public peace and comfort of the inhabitants of the municipality, and therefore should not involve such municipality in costs when a supposed offender against the ordinances is acquitted, unless the law has expressly so declared.

We know of no statute which makes the municipality liable in express terms, but the language of the latter part of Sec. 40, Chap. 53, would seem to indicate that the question of municipalities paying costs in prosecutions for the violations of ordinances is one entirely within the discretion of the board.

The language is as follows: “The costs in criminal and quasi criminal prosecutions for the violation of an ordinance of an incorporated city or town, where the provisions of the charter of such towns or cities do not prohibit the payment of such costs, may be paid by such city or town, in the discretion of the city council or board of trustees of such incorporated cities or towns.” -

The j udgment of the Circuit Court will be reversed.

Judgment reversed.


text:
    H. W. McFadden et al. v. D. C. White et al.

      Drainage—Subordinate Ditches—Bill to Restrain Extension and Repair of—Demurrer Sustained.

      1. Upon a bill to restrain drainage commissioners from making certain appropriations from the general fund for the purpose of extending and repairing subordinate ditches, and to require such officers, as well as others to return to the district treasury moneys already expended for such work this court holds that the court below properly sustained the demurrer of the respondents.
    2. In such cases it is to be presumed that the commissioners are acting in compliance with the law until the contrary is clearly made to appear.
    [Opinion filed January 21, 1889.]
    In error to the Circuit Court of Mason County; the Hon. Cyrus Epler, Judge, presiding.
    Mr. John W. Pitman, for plaintiffs in error.
    Messrs. Wallace & Prettyman, for defendants in error.
   Per Curiam.

This was a hill in chancery, brought by the complainants, owning lands within a special drainage district, to restrain the commissioners from making certain appropriations from the general funds of the district, and to require the present commissioners and certain ex-commissioners to account for and return to the district treasury certain sums of money which had been improperly used in making drains similar to that which the bill sought to enjoin. The Circuit Court sustained a demurrer to the bill, and the propriety of this ruling is the only point for consideration.

The alleged misappropriation accomplished and apprehended consists in making and repairing what are termed subordinate ditches, which can be useful only for the purpose of draining limited and particular areas, and are not necessary for the general drainage of the whole district. As to these, the bill claims there should be no charge upon the general funds of the district. The scope of the bill is confined to such .acts in this regard as have been done and are proposed since July 1, 1885, though the district was organized long before, and though, as averred, there had been, prior to that date, a number of such subordinate ditches constructed and paid for out of said general funds. It is not shown how the funds of the district had been raised; whether there had been any special assessments or classification of the lands under Sec. 21 of the act of 1885, nor is it shown what was the original plan or system of drainage projected when the district was organized, and under which more than $225,000 had been expended in constructing what are termed in the bill main ditches; nor does it appear, by direct averment or by necessary inference from what is set forth, that the ditches in question are not within the “ original purpose” for which the corporate funds may be used, “to the end that all lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified.”

It is to be presumed the commissioners are acting in compliance with law, and it must clearly appear otherwise before their proceedings can be assailed.

The allegations of the bill are to be construed against the pleader.

The bill was properly held bad, and the decree will be affirmed.

Affirmed.


text:
    Lake Erie & Western Railroad Company v. Phillip H. Faught.

      Railroads—Construction Contracts—Agency—Authority of Chief Engineer—Evidence—Instruction.

    In a controversy touching the authority of the chief engineer of a railroad company to bind it for work to be done on its right of way, this court declines to interfere with a verdict for the plaintiff.
    [Opinion filed January 21, 1889.]

      Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Stevens, Lee & Horton and James S. Ewing, for appellant.
    Messrs. Neville & Lindley, for appellee.
   Conger, J.

This was an action of assumpsit, brought by appellee against appellant, to recover for work done upon appellant’s road-bed, and he recovered a verdict for 8930, upon which judgment was rendered.

Appellee was working upon the grading of appellant’s roadbed for some time, under and by virtue of a written contract made between himself and J. M. Wright & Co., who were the original contractors with the company, and two others made between himself and sub-contractors under said J. M. Wright & Co. After thus working for some time, appellee became dissatisfied as to the prospect of being paid by these parties, and refused to proceed with the work under these contracts. He contends that Mr. Perry, the chief engineer, authorized him to proceed with the work, and that he should be paid for it; that Perry had authority to act for the company in the matter, and thereby made a new and independent contract between himself and the company for all work done after that time.

On the other hand, it is insisted by the company that Perry had no express or implied authority to bind it, and that he did not in fact attempt to do so; but that in all that he said to appellee he was merely assuring him that he would be paid by the contractors.

These are all questions of fact, upon which the jury have found against appellant, and, after a careful consideration of the evidence, we think they were justified in so doing.

The testimony is voluminous, and it would serve no good purpose to set forth the facts and circumstances in proof -which led the jury to their conclusion. Nor can we agree with counsel for appellant when they urge that Perry’s authority was assumed by the jury, or by the instructions, from the fact alone that he was the chief engineer of the company.

The jury were clearly and fully instructed upon this point; they were told by appellant’s fifth instruction that agency was not to be presumed, but if the agency of the engineer was relied upon, appellee must prove such agency by a preponderance of the evidence, and that such engineer had authority to bind appellant; and in the sixth instruction they were told that it was not sufficient to show simply that Perry was chief engineer for appellant to make it liable for his acts.

Finding no material error in the record, and believing that substantial justice has been done, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Saloma Shaffer v. The Travelers’ Insurance Company, etc.

      Accident Insurance—Condition in Policy—Voluntary Exposure to Unnecessary Danger.

    An attempt to reach the ground from a second story window by means of a strip of ticking selvage, is within a clause of an accident policy, relieving the insurer from liability in case of voluntary exposure to unnecessary danger.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Vermillion County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. George R. Tilton and W. R. Lawrence, for appellant.
    Messrs. F. Bookwalter and J. B. Mann, for appellee.
   Conger, J.

This was an action brought to recover upon a policy of insurance upon the life of Charles Shaffer, in favor. . of his mother, the appellant.

The policy contained, among others, the following clause:

“This insurance does not cover disappearances, nor injuries of which there is no visible mark on body, nor accident, nor death or disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: * * * voluntary exposure to unnecessary danger.” * * *

Sarah Allison, the woman from whose room deceased attempted to get away at the time he was killed, testified that he came to her room about half past five in the evening; that a few minutes afterward policemen came to her room, hammered at the door with their clubs and demanded admittance, which she refused; that deceased went into the hallway twice to get down by the stairs, then returned and prepared to go out of the front window; that he took a piece of selvage that was lying on the floor, torn from bed-ticking cloth, which was about six inches wide. He tried the strength of it over his knee with both hands, and then under his foot, and then said he knew it would hold him. He then tied it to the leg of a sewing machine sitting near the window, and, holding to the strip, started out of the window to let himself down to the brick sidewalk, about fifteen feet below.

Parties out in the street state that they saw deceased come out of the window and let himself down a foot or two, when the strip of bed-ticking broke and he fell, striking his feet against an iron circle that projected from the store door beneath him, which turned him over so that he struck the walk upon his head, and received such injury as caused his death.

The bare statement of the manner that deceased came to his death brings it, we think, clearly within the clause of the policy of “ voluntary exposure to unnecessary danger,” and fully justified the trial court in taking the case from the jury and directing them to find for appellee.

A verdict upon such evidence in favor of appellant could not be supported, and therefore the judgment of the Circuit Court will be affirmed.

Judgment affii'mcd. '


author: Wall, P. J.

text:
    Minnie Lowentrout et . al. v. Robert Campbell et al.

      Fraudulent Conveyances—-Hu-sband, and Wife—Conveyance by Wife to Husband—Liability for Husband's Debts—Creditors, Existing or Subsequent.

    1. Property deliberately.conveyed to a husband by his wife, belongs to him, and is liable for his debts.
    2. Upon a bill to set aside" a transfer of real estate alleged to have been made in fraud of creditors, this court holds that the conveyance was fraudulent as to the creditors in question. .
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. James S. Ewing and William E. Capen, for appellants.
    Mere indebtedness at the time will not per se establish that a voluntary conveyance was void even as to existing creditors, unless the oilier circumstances of the case justly create a presumption of fraud, actual or constructive. Woodridge v. Cage, 68 Ill. 157; Moutz v. Hoffman, 35 Ill. 553; Ulich v. Marble, 61 Ill. 449; Harman v. Harman, 63 Ill. 582; Patrick v. Patrick, 77 Ill. 261; 2 Kent’s Com., 174.
    Complainant must prove that grantor knew of insolvency and indebtedness of grantor, and that grantor intended to hinder, delay or defraud creditors. Trustees of Schools v. Mason, 11 Ill. App. 454, and 15 Ill. App. 386.
    Equity will uphold title in wife as against creditors, not misled by title standing in the husband. Sweeney v. Damron, 47 Ill. 450.
    This last was a case where lands were purchased with wife’s money, but legal title in name of husband, who traded the land for other land, and had deed for the same made to his wife.
    Existing creditors are those whose claims or demands against the debtor were in being, in some form, at the date of the alleged voluntary or fraudulent alienation.
    Subsequent creditors are those to whom the insolvent became indebted at a time subsequent to the alienation which is the subject of inquiry.
    As to the former, fraud is an inference of law. As to the latter, there must be fraud in fact. • Wait on Fraud. Con., Sec. 89, p. 138; Cook v. Johnson, 12 N. J. Eq. 54; see, also, Wait on Fraud. Con., Chap. VI, title “Subsequent Creditors,” page 148.
    The right of a grantee or vendee from whom a creditor seeks to wrest property held in trust for the debtor, to require the creditor to show, in a proper case, that his debt accrued before the conveyance which is questioned, is clearly established.
    Messrs. Williams & Capen, Benjamin & Morrisey, J. P. Lindley, H. G. Bent, W. B. Carlock, H. R. Benson and E. E. Donnelly, for appellees.
    The conveyance made June 20, 1888, by Bowentrout to his wife, of all his property, worth several thousand dollars, for the nominal consideration of one dollar only, as expressed in the deed, was prima facie fraudulent as to his then existing creditors, without reference to his intent or that of his wife. Marmon v. Harwood, N. E. Rep. Vol. 16, 236; Freeman v Pope, L. R. 5, Ch. 545; Kehr v. Smith, 20 Wall. 31, 35; Kipp v. Hanna, 2 Bland. 33; Emerson v. Bemis, 69 Ill. 541.
    Where the circumstances surrounding the execution of a conveyance lead to the inference of fraud, the burden of disproving it is on those upholding the conveyance as against the grantor’s creditors. Zimmer v. Miller, 64 Md. 296; Breslauer v. Geilfuss, 65 Wis. 377; Frank v. King, 121 Ill. 250; Besson v. Eveland, 26 N. J. Eq. 468; Post v. Stiger, 29 N. J. Eq. 556.
    Where the husband has taken the title to property in his own name, with his wife’s knowledge, and she has for years permitted him to represent the property to be his, and upon such apparent ownership to obtain credit and standing, equity will not protect the property from the husband’s creditors, even if the design to create a trust in favor of the wife were clearly established by the evidence. Beeson v. Eveland, 26 FT. J". Eq. 468; Budd v. Atkinson, 30 FT. J. Eq. 530; Hackett v. Bailey, 86 Ill. 74.
    All the appellees were creditors within the meaning of the statute of frauds, although portions of the claims of most of them were not due, and to a certain extent were contingent at the time of the transfer. Waldrodt v. Brown, 1 Gilm. 397, 399; Bongard v. Block, 81 Ill. 186; Choteau v. Jones, 11 Ill. 37S; Hatfield v. Merod, 82 Ill. 113; Jackson v. Seward, 5 Cow. 71; Howe v. Ward, 4 Greenl. 195; Van Wyck v. Seward, 18 Wend. 375; McLaughlin v. Bank, 7 How. 229; Bibb v. Freeman, 59 Ala. 615; Mattingly v. Wulke, 2 Ill. App. 169; Bay v. Cook, 31 Ill. 336; Rider v. Kidder, 10 Ves. 360.
    Where a deed is set aside as void as to existing creditors, all the creditors, prior and subsequent, share in the fund pro rata. Weber v. Smith, 20 Wal. 31, 36; May on Fraud. Con., (2d Ed.) 62; Whittington v. Jennings, 6 Simons, 493; Freeman v. Pope, L. R. 5, Ch. 538.
    A conveyance intended to defraud creditors is voidable, not only as to existing but as to future creditors. Partridge v. Stokes, 66 Barb. (N. Y.) 586, 588; Morrill v. Kilner, 113 Ill. 318; Shand v. Hanley, 71 N. Y. 319, 322; Horn v. Volcano Co., 13 Cal. 62, 72.
   Wall, P. J.

In the year 1887, Lowentrout & Shansten were sub-contractors, under one Eager, in the building of a portion of the Lake Erie & Western Bailroad. Shansten had no property. Lowentrout had the legal title to four lots in the city of Bloomington. One of these lots was purchased from one Miller, in 1880, at the price of S3,000, and was deeded to the wife of Lowentrout. In 1883 Mrs. Lowentrout conveyed this lot to her husband. The other lots were conveyed, at different times to the husband. It is contended that all this property,which was quite valuable, really belonged to the wife, because acquired with her means, though the title was in the husband.

The contract held by Lowentrout & Shansten proved unprofitable, and it was finally abandoned by them, the unfinished work being completed by Eager, the chief contractor.

The employes of Lowentrout & Shansten, who were mostly day laborers and men with teams, quit work some time in July, 1887. They had been at work for months, but the balance due was for the months of June and July. Tlierewas a claim, also, in favor of Harber & Co., who had furnished some scrapers in May. On the 20th of June, 1887, Lowentrout conveyed the real estate above mentioned to his wife for the expressed consideration of one dollar. The creditors of Lowentrout & Shansten, having obtained judgments on their claims before a justice of the peace, caused transcripts to be filed in the office of the circuit clerk, and obtained executions to the sheriff. These executions were returned nulla bona, and a bill in chancery was filed for the purpose of setting aside the conveyance from Lowentrout to his wife, on the ground that it was fraudulent as against these creditors, complainants in the bill.. Upon a final hearing, a decree passed according to the prayer of the bill, and the present appeal questions the propriety of that decree.

It is not necessary to consider the question of fact as to whether the property in controversy was purchased with the money of the wife. The evidence on this point, though quite positive and circumstantial, presents a very unusual condition of affairs, and much of it is hard to believe. All the circumstances taken into account, the story seems unreasonable in many of its details. But conceding the money did belong to the wife, and that she acquired it from a former husband and by her own exertions, as she claims, it can not be doubted that the property was deliberately placed in the name of the husband, and that a part of it, at least, was so placed for the very purpose of giving him credit; it must therefore be regarded, so far as these creditors are concerned, as his property. Hackett v. Bailey, 86 Ill. 74.

The evidence leaves no doubt that the conveyance was for the purpose of defrauding the creditors of Lowentrout & Shansten, and, whether they are to be regarded as existing or subsequent creditors, if there was, in fact, a fraudulent purpose in making the conveyance, they may have it removed out of their way. Morrill v. Kilner, 113 Ill. 318; Moritz v. Hoffman, 35 Ill. 553; Bump on Fr. Con., Chap. 13.

We think, however, the creditors may well be regarded as existing at the time of the conveyance, and though there was no express fraud, but merely fraud in law, they might ask the relief here granted. Ib., Chap. 18. The decree is responsive to the merits of the case, and must be affirmed.

Decree affirmed.


text:
    Christian Linck v. City of Litchfield.

      Municipal Corporations—Negligence—Refusal to Repair Water Main —Action for Damages.

    1. The extension or maintenance of water mains in particular places, by municipal authorities, is discretionary with them.
    2. There can be no recovery from a municipal corporation by a consumer of water, for expenses incurred by him in connecting with a public water main which is subsequently abandoned.
    [Opinion filed February 21, 1889.]
    • Appeal from the Circuit Court of Montgomery County; the Hon. J. A. Greighton, Judge, presiding.
    Statement. Copy of declaration.
    In Circuit Court, Hov. Term, 1887.
    State of Illinois, 1 gg Montgomery County, j.
    Christian Linck, plaintiff in this suit, by his attorney, complains of the city of Litchfield, defendant. Summoned, etc., of a plea of trespass on the case.
    For that, whereas, the plaintiff heretofore, to-wit: On the 10th day of September, 1882, at and in the city of Litchfield, in the said county, was the owner and in possession of a certain barn and premises, with the appurtenances thereto attached, and from thence hitherto hath owned and possessed the same, in and upon which said barn and premises the plaintiff kept divers horses, cattle and hogs during all the time aforesaid, and which barn and premises were near to a certain street, called Monroe street, in said city of Litchfield; and also from thence hitherto the plaintiff owned and possessed a certain dwelling house and premises, with appurtenances, in which from thence hitherto the plaintiff with his family dwelt, and which dwelling house, with the appurtenances, were near to a cértain street, called Monroe street, in said city Of Litchfield, and also from thence hitherto the plaintiff owned and possessed á certain hotel and premises, with the appurtenances, and which hotel and premises were near to a certain street, called Monroe street, in said city of Litchfield; and also, from thence hitherto the plaintiff owned and possessed a certain other barn and premises, with the appurtenances, in which the plaintiff kept divers horses, cattle and hogs, and which barn and premises were also near said certain street, called Monroe street, in the said city of Litchfield. And whereas, also, the defendant, on the day and year and in the city and county aforesaid, owned and controlled certain waterworks and reservoir filled with water, sufficient to supply' all the inhabitants of said city' with a sufficient supply or quantity of water, and then and there the defendant, and from thence hitherto, had laid down and owned a certain main waterpipe or tile in the said Monroe street, connecting with said reservoir, by means whereof the said defendant could and did supply all the citizens of said city residing or owning real estate near said Monroe street with an abundant supply of water. And it was provided by an ordinance of said city that the inhabitants thereof residing near said main pipe, by paying the costs and expenses of connecting water pipes or tiles with said main pipe or sewer aforesaid, and by paying a certain sum of money, to wit, four dollars, to a licensed plumber, and upon making application in writing to the city clerk of said city, and by paying a certain large sum for water tax, might have license and permission to connect their several premises and houses with said main pipe, and might thereby obtain a sufficient supply of water for their several uses and purposes; and the plaintiff avers that ho did make application in writing to the said clerk of the said city of Litchfield for permission to connect his said two barns and jmemises and his said hotel and dwelling house and respective premises, with the appurtenances thereto attached, so that he might thereby and did obtain a sufficient supply of water for the same from said main pipe, to wit, on the day and year, and at said county, and on divers days and times since, and permission for the purposes aforesaid was granted said plaintiff for said purposes, to wit, on the said day and year and at said city, county and State, and in consideration of the premises and for the said license, and at the special instance and request of the defendant, the plaintiff paid, laid out and expended divers large sums of money as expenses in connecting said premises aforesaid and for the license aforesaid, to wit, two hundred dollars for water as aforesaid for his hotel, two hundred dollars for water as aforesaid for his dwelling house, and one hundred dollars to get water as aforesaid for each of his said barns, and three hundred dollars to procure water license for the uses and purposes aforesaid. And in consideration of the premises the defendant permitted the plaintiff to procure, as aforesaid, water for his said dwelling house, hotel and barns and premises aforesaid. And afterward, to wit, on the- first day of January, 1883, at said city, county and State, the said main pipe in said Monroe street became and was out of repair and -s leaked, and although requested by the plaintiff at divers times to repair said main pipe in Monroe street, the defendant wrongfully, fraudulently and majiciously, to harass, wrong, injure and oppress the plaintiff, refused to do so, although the cost of said repairs would have amounted to a small sum of money, to wit, eight dollars, and although the defendant had sufficient revenue and means to repair and keep said main pipe and all others in said city and said waterworks and reservoir in good and sufficient repair, to wit, from thence hitherto, by means of the premises, the plaintiff was for a long time deprived of water for his two barns, to wit, from thence hitherto; and by means of the premises, the plaintiff was for a long time deprived of water for his hotel and dwelling house and premises, with their appurtenances, to wit, three years and six months, and by means of the premises the plaintiff was compelled to and did pay and lay out a large sum of money, to wit, five hundred dollars, in and about the connecting his said hotel and dwelling by means of water pipes and tiles, with another main pipe in State street in said city, the latter street being remote from the said hotel and dwelling house and premises.
    And plaintiff further avers that ever since the day and year aforesaid, and from thence hitherto, he has kept his said connecting water pipes, connecting his said barn and premises with the said main pipe in Monroe street,' in proper repair, and has repeatedly, from year to year since that time, requested the defendant to repair the said main pipe in' Monroe street, and thereby supply the plaintiff with water for his barn on the east side of Monroe street, on lot 4, in block 30, in the original town, now city, of Litchfield, and on the first day of July, 1887, requested in writing the defendant to repair the same, but the defendant refused to do so, and by reason of the premises last aforesaid, the plaintiff hath from the day and year first aforesaid hitherto, been greatly damaged and incommoded and put to great inconvenience in endeavoring to supply his said mentioned barn and premises with water sufficient for his cattle, horses and hogs, and thereby suffered and sustained damages in the sum of, to wit, five hundred dollars; and the plaintiff hath always and at all times since the day and year first aforesaid, been ready and willing, and repeatedly offered to pay his water tax for the purpose aforesaid.
    And the plaintiff further avers that in consideration of the' premises, it became- and was the duty of the defendant, from the day and year first aforesaid hitherto, to maintain and keep said main water pipes or tile in Monroe street in good and proper repair, so that the same would not leak, yet the defendant, unmindful of its said duty in the premises, but contriving and intending wrongfully and injuriously to wrung, injure, damage and oppress the plaintiff, wrongfully, maliciously and unjustly neglected its said duty in the premises, and failed, neglected and refused, though often requested, to repair and keep in proper condition during all the time aforesaid, the said main pipe or tile in the said Monroe street aforesaid; by means of which said several premises the pontiff hath been greatly injured, prejudiced and aggrieved, and hath sustained damages to the amount of $5,000; therefore he brings suit.
    Messrs. A. N. Kingsbury and Lane & Cooper, for appellants.
    This action was brought for damages for a failure to perform a plain duty, under all the circumstances of the case. If cities can cut loose from large manufacturing establishments, under the facts of this case they have the power of inflicting bankruptcy and financial ruin upon persons and corporations, who, relying on the good faith of the city to continue a supply of water, invest large sums of money upon the faith of the conduct and implied promise of the city; and a private citizen would have the same right of action, where, as in this case, he invests large sums of money to communicate with waterworks, as large capitalists would have.
    ■ “ The rule seems to be well settled that corporations and incorporated companies may be sued in that character, for damages arising- from a breach by them of a duty imposed by law. 1 Chit. PL, 77. In Angeli and Ames on Corporations, 327, it is laid down, that an action on the case will lie against a corporation, to compel a transfer of stock. In the case of Shepley v. The Mechanics’ Bank, 10 Johns. 484, for a mandamus to compel the bank to allow the transfer of certain shares of stock, the court refused the writ upon the express grounds that the applicant had an adequate remedy by an action on the case, to recover the value of the stock. The case of The King v. The Bank of England, Doug’as, 524, holds the same doctrine, and in that case the mandamus was for the same reason refused, as in the case of Sliepley v. The Mechanics’ Bank. An action on the case, it has been held, will lie against a corporation for the neglect of a corporate duty. Mayor of Lynn v. Turner, Cowp. 86. Numerous additional adjudged cases might be referred to in support of this rule, but we regard the rule well settled that the party injured may maintain an action on the case against a corporation for a neglect of any duty imposed by their charter.” Claybaugh v. Chicago, 25 Ill. 440.
    The occupant of a tenement entitled under the statute and ordinance to the use of the water therein on payment or tender of the specific rate, may maintain a bill in equity to restrain the city and the registrar from cutting off the water from his suite of rooms. Young v. Boston, 104 Mass. 95.
    Owners and occupants are entitled to demand a supply of water for domestic purposes, when they have laid down communication pipes and paid or tendered the water rate payable in respect thereof. West Troy Water Works Company v. The Village of Green Island, 32 Hun (N. Y.), 530.
    Messrs. Joseph E. Paden and George L. Zink, for appellee.
    The city of Litchfield is organized under a special charter, and among the powers given to the city council under that instrument, is one “to provide the city with water; to make, regulate and establish public wells, pumps and cisterns, by drains, hydrants and reservoirs in the streets, within the city or beyond the limits thereof, for the extinguishment of fires and the convenience of the inhabitants, and to prevent the needless waste of water.”
    This is the usual power vested in the common council of municipal corporations, and the exercise of that power is wholly discretionary. We take it that no principle of law is better settled than that where the power in the common council of a municipal corporation is discretionary, and not ministerial, the exorcise of that power can not be inquired into by the courts.
    “It being discretionary with the city whether it should or not construct reservoirs, having constructed them, it was discretionary with the city whether it would maintain them or allow them to fall into disuse.” Grant v. Erie, 69 Pa. St. 420.
    “ Municipalities are answerable for neglect to perform an absolute duty as distinguished from a discretionary duty, and for neglect to execute a private, as distinguished from a public power.” Kiley v. Kansas City, 2 West. Rep. 201.
    “The law vests in the city the discretion whether it would maintain the sewer or allow it to fall into disuse.” Mendel v. Wheeling, 28 W. Va. 233; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; Robinson v. City of Evansville, 87 Ind. 334; Smith v. Philadelphia, 81 Pa. St. 38.
    “The inclination of the courts has been not to press the pecuniary liability of municipal corporations, which is distinctly recognized where the duty is a corporate one, absolute and perfect, and owing to an‘injured party, in cases where a duty is assumed, not for a corporate benefit, but the common good. They have refused to hold a city liable for the acts of its police officers, although they are appointed by it; for the misconduct of the members of the fire department, or for the city’s own neglect to provide suitable engines or fire apparatus, or to keep in repair public cisterns, or continue the supply of water to particular hydrants.” Dillon on Mun. Corp., Secs. 723, 774 and 775; Taintor v. Worcester, 123 Mass. 311; Lansing v. Toolan, 37 Mich. 152; Wheeler v. Cincinnati, 19 Ohio St. 19.
    The principles applicable to this case are clearly set forth in the case of Wilson v. Mayor, etc., of New York, 1 Denio, 595, and we quote in full the last paragraph of the opinion therein:
    “Although the language of the statute which confers on the defendant power to make sewers and drains is that of permission and not of command, yet in its nature it is clearly imperative. It is equivalent to an express enactment that it shall be the duty of the mayor, aldermen, etc., to make all needful sewers, drains, etc., in said city. The statute imposes not only a moral but a legal duty to that extent, and. for a wilful violation of which the guilty individuals may be indicted and punished. But so far as respects a civil remedy it is otherwise. To that extent the decision of those whose duty it is to pass upon the question is absolutely conclusive. They may err in holding the work ought not to be done, or the decision maybe one of culpable neglect or corruption; still the law authorized them to determine the question, and it will not permit their decision to be overhauled in a civil action.”
   Conger, J.

A general demurrer was sustained to the foregoing declaration, and we think properly.

The power of the city to extend water mains, or to maintain them in particular places is, in its nature, legislative and governmental, and must of necessity be discretionary.

If municipal authorities were compelled to construct or maintain water pipes, whenever courts or juries might think proper, there would be an entire subversion of municipal government and control. Grant v. Erie, 69 Pa. St. 420; Mendel v. Wheeling, 28 W. Va. 233; Dillon on Municipal Corp., Secs. 723,774; Wilson v. Mayor of N. Y., 1 Denio, 595; Cooley’s Constitutional Limitation, 208, 209.

Appellant insists that he ought to recover under this declaration; “The amount expended in making the connection with the main pipe, and the amount of the water tax paid, or a proportionate part thereof, to be proved to the jury.”

It is not alleged that there was any unexpired time covered by his license, or water tax paid; and for expenses in making a connection with a main which the city authorities believe to be to the public interest to abandon, there can be no recovery.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Pleasants, J..

text:
    Illinois Central Rail Road Co. v. Sally Neer, Administratrix.

      Railroads—Personal Injuries—Wild Trains—Running of Trains Under Special Instructions—Rules and Regulations—Usage and Practice— Failure to Give Notice—Position of Trains—Contributory Negligence— Evidence—Instructions.

    1. In the running of train's, no order inconsistent with due care for the safety of persons or property, should be made or obeyed.
    2. Special orders to make a run within a specified time are not absolute, but must be executed with a view to the exigencies of the case.
    3. A special order may be assumed to supersede a standing rule only where they in terms conflict, or where it is or should be foreseen that its execution will be incompatible with such standing rule.
    4. Where its incompatibility with the standing rule arises from the happening of e ents which could not have been foreseen, and not caused by the action of the giver of the order, with reasonable ground to expect that effect, the special order must yield.
    5. The question as to whether the system of a railroad company in the movement of its trains is consistent with due care, is for the jury.
    6. In an action brought to recover damages from a railroad company for the death of one of its servants, alleged to have been caused by its failure to give notice of the position of a preceding train, this court holds that the fifty-four" claimed instances of the giving of such notice out of 11,000 orders touching the movement of trains over the same piece of road within a specified time, can not be relied upon as establishing such to be the practice of the company.
    7. In the case presented, it is held: That an instruction to the effect that, as it was not reasonably possible to carry out both the special order and the general rule, it was for the jury to decide which should have been obeyed, was erroneous; that there can be no recovery on the ground of failure to give notice," such failure being consistent with the long established usage of the company; that such usage was prudent and proper; that it was known to deceased; that the dangers thereof were assumed by him; and that the accident in question was the result of his own negligence.
    [Opinion filed June 27, 1889.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.

      Mr. J. S. Wolfe, for appellant.
    Deceased and train-master or dispatcher were fellow servants. Their employment at the time had for its immediate object a common end or purpose, namely, the movement of the train, and this constituted them fellow servants. Abend v. T. H. & I. R. R. Co., 111 Ill. 211. They were “ co-operating” with each other completely, as if all had been on the train, in the particular business of moving the train. Their business was in the “same line of employment,” but stronger yet—doing “the same precise thing.” This made them fellow servants. C. & N. W. R. v. Moranda, 93 Ill. 302; C. & A. R. R. v. May, 108 Ill. 288; C. & E. I. R. R. v. Geary, 110 Ill. 383.
    Deceased knew the hazards of the business as it was conducted. His injury was the result of a known danger, and defendant is not liable. Spafford v. C., B. & Q. R. R., 114 Ill. 247. He can not recover because a safer mode might have been adopted. Simmons v. Chicago & T. R. R., 110 Ill. 340. Generally the injured servant must have used ordinary care, not only at the exact time of danger, but in time to avoid danger, otherwise it would not be care. C., B. & Q. R. R. v. Johnson. 103 Ill. 520; C., B. & Q. R. R. v. Rogers, 17 Ill. App. 638. But in this case the deceased, on approaching the station of Savoy, was bound to use more than ordinary care. He was bound to observe appellant’s rule 10, and the essential element of safety in that rule is that “gieat care” mustbeused. This rule is neither modified nor dispensed with by the facts in the case at the time and place of the collision. I. C. R. R. Co. v. Neer, Appellate Court, 3d Dist. Opinion filed November 18, 1887. The running of railroad trains is a matter out of the scope of the common knowledge of men, and the opinions of persons skilled therein are admissible.' Eogers’ Expert Evidence, sections 107-108, pages 145-146.
    Messrs. Gere & Philbrick, and J. W. Langley, for appellee.
    “ It is the duty of a railroad corporation to prepare a timetable, and to adjust the running of its trains so as to avoid, collisions. It must also devise some suitable and safe method by which to run special and irregular trains, and regular trains when off their regular time. That can not be done by general rules.” Darrigan v. N. Y. & L. E. R. R. Co., 52 Conn. 285.
    “It is those risks alone which can not be obviated by the adoption of a reasonable measure of precaution by the master that the servant assumes.” Pantzar v. Filly Foster Min. Co., 99 N. Y. 369.
    “A railroad company is bound to regulate the time and manner of running its trains so as to avoid collisions, and to enable all its servants to know when a train may be expected, and thus to avoid danger.” Shearman & Redfield on Reg., 2d Ed., Sec. 93.
    “It is the duty of a railroad company to adopt such rules and regulations for the running of their trains as would be reasonably safe, and if it has adopted such rules, then it must conform to them, or be responsible for the consequences resulting from a departure from them, unless it used reasonable care to avoid accidents which might occur from such departure.” C., B. & Q. R. R. Co. v. George, 19 Ill. 517; Railway Accident Law, 316, 317; Shearman & Redfield on Regligence, 2d Ed., Sec. 89 and notes 2, 3 and 4.
    “When the movement of trains by telegraph is left to the discretion of a division superintendent, or train-master, it is his duty to so regulate their running time as to insure safety against collision.” C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 114.
    “The peremptory order of the train-master that the train must be brought through within a specified time, was an assurance that the track would be safe for the journey, and required the train-master to take reasonable precautions to make it so.” Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 340.
    “ As between servant and employer, the latter is bound to use reasonable care in the prosecution of the business in which he engages the former; and it can not be made out upon principle, or from any cases of authority, that he shall not be liable for damages arising from a failure to do so.” " Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 334; Flike v. The B. & A. R. R. Co., 53 N. Y. 554; Cone v. Delaware, etc., R. R. Co., 81 N. Y. 206.
    “Where the negligence of the company is the proximate cause of the injury, contributory negligence of a fellow servant is no defense.” Grand Trunk Ry. v. Cummings, 106 U. S. 700; Stringham v. Stewart, 100 N. Y. 526; Cone v. D., L. & W. Ry.; 81 N. Y. 208; Railway Accident Law, 337.
    “ The train-master and his assistants, in relation to train men, are vice-principals. They stand in place of and act for the master. Their negligence is the master’s negligence.” C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 109; Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y. 332; Darrigan v. N. Y. & N. E. Ry., 52 Conn. 285.
    “A master is always liable for negligence in respect to such acts and duties as he is required to perform and discharge as master.” Flike v. Boston R. R. Co., 53 N. Y. 553.
    “A master can not relieve himself from damages occasioned by his own negligence by contract either expressed or implied.” Lake Shore & M. S. R. R. Co. v. Sprangler (Ohio), 8 N. E. 467; Kansas Pacific Ry. Co. v. Peavy, 29 Kas. 169; Little Rock & Ft. S. Ry. Co. v. Eubanks, 3 S. W. 808; Railroad Co. v. Lockwood, 17 Wall. 357.
    Where one duty is imposed upon an employe by a railroad company, and afterward another duty is assigned to him, without expressly relieving him from the performance of the first duty, the question whether the assignment of this second duty relieves him from the performance of the first duty is a question of fact, to be submitted to the jury upon the evidence, and is not a question of law. Union Pacific Ry. Co. v. Fray, 29 A. & E. R. R. Cases, 309.
    A special order from train-master to vary from time caid time, supersedes the general rule to maintain the time card time. A special order to run faster than fifteen miles an hour supersedes the general rule limiting freight trains to fifteen miles per hour. Likewise a special order directing a train to be brought through in a specified time supersedes all general rules in conflict with the special order. Sheehan v. N. Y. C. & H. R. Co., 91 N. Y. 334; C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 109; Darrigan v. N. Y. &. N. E. R. R. Co., 52 Conn. 285.
   Pleasants, J..

The declaration in this case sets forth that James A. Neer, a locomotive engineer in the employ of the defendant company, on the 22d of November, 1886, at 10:30 o’clock a. M.,Jeft Centraba with a train which was to be moved and run, not according to any time-table, but under special directions from the. train-master, and therefore called a wild train, composed of nineteen cars of cattle and three of dead freight, under an order to make the run to Champaign City in seven and a half hours; that he followed a regular freight train, which, by its time card, was to leave the same place at 4:25 A. m. and arrive at Savoy, the station next south of Champaign, at 1:20, and at Champaign at 1:40 p. m.; that this train was so delayed, by specific direction of the defendant, as to be at Sa\Toy at 6:05 p. m., and that although the defendant had a train-master and a train-dispatcher at Champaign, and a line of telegraph all the way, with operators at each end of the run and at intermediate stations, it negligently failed to advise the deceased of its delay and position; by reason whereof, without any want of due care on his part, he ran his train into it. at said station and was killed by the collision. The plea was not guilty.

A former judgment herein was reversed by this court because of an erroneous instruction given for the plaintiff. In the opinion filed the case was stated fully enough to show the error found, and the views of the court were also incidentally expressed upon some other points, then and now involved. 26 Ill. App. 356. The second trial was had, by agreement, upon the evidence in the bill of exceptions taken on the first, with some additional testimony which did not materially change its aspect; • and the result was a verdict for the plaintiff for $5,000, which the court below refused to set aside. From the judgment entered thereon this appeal was taken.

It seems that the instructions given on this trial were prepared by the court. Counsel has criticised them with somewhat unusual severity. We think their faults are mostly verbal, but do not propose to consider them particularly, because, whatever view may be taken of them, the case, in our opinion, is in condition to be decided upon the merits as shown by the evidence. The questions involved are those of due care or culpable negligence on the one side and the other, and the evidential facts are undisputed. Those averred in the declaration are admitted, and others are shown as follows:

Between Centraba and Champaign City, a distance of one hundred and twenty-three miles, there were twenty-seven stations of all classes, nine railroad crossings on grade, four places for taking water, and one for coal. Deceased had been employed on that run for twenty years. He had pulled this wild train thirty times, making the run once in six hours and thirty-five minutes, seven times in seven hours and thirty minutes to eight hours, and five times in eight to eight hours and thirty minutes—his longest time being ten hours and fifteen minutes, and his average eight hours and thirty-four minutes. On the day of the accident he was delayed by stops and Blowings nearly two and a half hours. He had also pulled the regular (New Orleans way freight), which was known as No. 22, on sixty runs, of which he made only six in card time, and was late on the others from one to seven hours. When it was late at Champaign it was generally late out of Centraba, the variation in time from Centraba being mainly due to the fact that it was sometimes a “through” and sometimes a “way” freight from that point, its character depending on the load it carried. It had been passed by the wild only twice before this accident, and on neither of those occasions was the deceased on either. On the day in question, its conductor received at Effingham, fifty-three miles north of Centraba, an order from the train-master to “pick up all the loads he could find and the engine was able to haul.” Deceased was well aware of its liability to such delays, and of the irregularities in the time of its arrival and the length of its stops at the various stations on the run. On that day he was advised by the register at Effingham that it had left that station at 10:25, being an hour and three quarters behind its card time. There was no registering station between that and Champaign, and though it does not appear whether he did or did not, after leaving there, get any information as to its whereabouts until just before the collision, it is certain that he received none from the train-master.

The last report of these trains to that officer before the collision was that the regular left Tolono, the station next south of Savoy, and the wild left Hayes, the second station south of Tolona, at the same time. According to its card, the regular was due at Hayes at 12:32 and at Tolono at 1:04, so that it was thirty-two minutes ahead of the wild on its own prescribed run of one hour and eight minutes from Hayes to Champaign ; and so, from that report, the train-master may have had no apprehension of its being overtaken. Savoy was a flag station for passenger trains, having one side track, with a switch at each end. Regular local freights usually stopped there. Through freights, having no work there, did not unless flagged. Wild and other trains often passed it at full speed. Its distance from Tolono was a little over five miles. Between them the track was straight, slightly descending to the north, and free from all obstructions to the view. The day of the accident was rainy and at times foggy, requiring frequent attention from the deceased to keep his cab window clear. His fireman observed that he repeatedly wiped it, but whether between those stations he did not notice or recollect. He ran there at the rate of about twenty-five miles to the hour.

The regular stood on the main track at Savoy. It was dark and still raining, though not hard, and the fog had raised. Red lanterns with lard oil lamps—all in good condition, with clear globes and burning well—were hanging from the sides and from the rail at the rear end of the caboose. Such lights are as visible in the dark as in the dusk, and can be seen at a distance of half a mile or more. The conductor saw the headlight of the wild at about that distance, his attention being first attracted by the noise of the coming train. His brake- • man immediately started back with a red lantern to arrest it if possible, and ran four or five hundred feet before his signal was answered and the whistle sounded for brakes; but the train was then within twenty-five car lengths of the station and the collision was inevitable. Another freight train, which the wild passed at Tolono, followed it in a few minutes, and its engineer had no difficulty in seeing the lights at Savoy and stopping his train before reaching it, although he also was running at the rate of twenty-five miles per hour.

On behalf of appellee, it is contended that the company, having imperatively ordered the wild to make the run in seven and a half hours, and by a later order to the regular caused its unusual delay, virtually gave to both trains the right, in the absence of notice, to occupy the same point on the track at the same time, and knowing that freight and wild trains often passed Savoy without slowing, was, by its means of knowledge, in duty bound to know the danger of the situation there, and by proper notice and directions to guard against it; and that its employes on the wild train, who were dutifully endeavoring to execute a specific and imperative order, were especially entitled to such protection.

A standing rule of the company, known as No. 10, required that “ all trains, when approaching stations, watering or coaling places, must do so with great care, expecting to find some train occupying the main track. * * * This rule is not intended to excuse employes from exhibiting the proper signals, as provided in rules 7, 9, 11 and 12, but is an extra precaution to prevent accident.” Another declares that “safety demands that all persons connected with the movement of trains by telegraph should use the utmost care and watchfulness,” which would seem to apply as well to those in charge of such trains as to those who operate the telegraph.

Appellant further claims that these rules were emphasized by the established and well understood practice under its system of train movement. That practice- was to give no notice whatever to any train of any other train ahead or following, of the same class, even as to trains running against each other, that is, in opposite directions. If they are regular, running on time card and adhering closely to their schedule, no notice is given; though, if any have lost their table rights, or are to meet other than regular trains on time, the meeting points are made by telegraphic order. But where trains of the same class are going the same way, neither is notified of the other, although the one following is to make faster time than the other, and must overtake it. Here the two trains were of the same class.

That such has been the established practice of this company for at least seventeen years, and well known to its employes, was positively shown by the direct testimony of many witnesses, and none such was offered to contradict it. These witnesses, and many others, of the largest experience and holding the most responsible positions on other leading roads—the Burlington, the Alton and the North-Western—further testified, without contradiction, that this system has been adopted on all those roads, and is a better and safer system than one which would warrant the expectation of notice in such cases. Some of the reasons assigned are, that on great roads like these, where such trains are so numerous and have so many stopping places, no one man should be responsible for all their movements. It would impose upon him too great a burden, and expose them to too many risks. He must always be without prompt information of delays and obstructions between stations, and often, also, of delays and obstructions at stations, by neglect of conductors and telegraph operators to report, and still more by interruption and derangement of the telegraphic apparatus, especially in time of storm. The exposure of trains at such times from reliance on a system of notice would he greater than that of the whole time under one which makes their safety depend on the vigilance and care of those in immediate charge.

The Legislature has not prescribed any specific rules for the movement of railroad trains. The courts have no power to do so, nor are they qualified to exercise it. They can do no more than declare the degree of care to be observed in the adoption and execution of such rules, and hold the companies liable for injurious consequences of their failure to observe it. Whether the sjrstem of appellant was consistent with due care .was a question for the jury. But it was to be determined upon the evidence, in reference to which, on the former ap-. peal, we said that “ whether this reasoning and these opinions should be adopted or not, there is in this record really no conflict in the evidence as to the propriety of the rule; and if the practice of the appellant is to be condemned, it must be upon a conclusion reached independent of and discarding the opinions of these expert witnesses. We think that neither the court nor jury has such knowledge of the subject-matter as to justify such á conclusion.”

Upon the point thus mentioned, the proof in the present record is the same ; but respecting the actual practice of the company the plaintiff introduced on this trial fort}'-seven instances, in addition to seven produced on the first, of what are claimed to be such notices, given by the train-master. They are telegrams, varying in forms of expression, of which some are not clear as to their bearing upon the question, and the circumstances to which they applied are not fully shown. There is reason, from the evidence, to think that in many cases the trains were not of the same class. Assuming, however, that they were all inconsistent with the rule of practice claimed by appellant, we think it would be impossible to discover from them what particular condition, or that any particular condition of such trains would make them recognized exceptions to that rule ; and the inference would be that these cases were so peculiar that as to them the train-master, of his own will and for his own rea ons, but not according to any prescribed or established practice, departed from it.

They were taken from books containing about eleven thousand orders and messages sent in the course of three years to employes running trains between Centraba and Champaign, and presumably are all that were supposed to support appellee’s contention on this point.

From these few instances contrary to the general course, even if they had all been known to deceased, he would not have been justified in relying upon notice on the occasion in question.

Upon the facts above stated, which are all that now occur to us as material, the jury must have found that he used ordinary care in approaching and coming into the station at Savoy, and that the failure of appellant to give him notice of the position there of No. 22 was negligence.

It is not pretended, however, that he complied with rule 10 as it would be construed in application to other trains; but the claim is that as to his, on that occasion, it was superseded or suspended by the special order to him to make the run in seven and a half hours. It is said that this was impracticable without disregarding the standing rule, and that the special order was imperative, in the sense of being absolute, and therefore that it authorized him to presume, in the absence of notice to the contrary, that the track was c'ear. The argu-r ment assumes that to have observed that rule he- must have stopped or slowed up at each of the furty-one stopping places on the run. But what it required., and all that it required, wras only that in approaching stations, and watering and coaling places, “ great care should be used” with reference to the possibility of finding *• some train occupying the main track,” which might be fully observed without either stopping or slowing at such places, wherever, by a timely lookout, it could be seen that the track was not so occupied. It is quite probable that such care in looking out, rather than a relaxation or disregard of the rule, accounts for the frequent passing of Savoy at full speed. There the track was straight, and the view unobstructed for a greater distance than was required for making a stop. Whether this' was. true of other stations does not positively appear, but it certainly is not improbable.

We apprehend that special orders to make runs in a specified time are never absolute. Of necessity they must be conditional, and their execution must be undertaken with that understanding.

The company has no right to give, nor its employes to execute, any order which is inconsislent with due care for the safety of persons and property affected by it.

We hold, also, as a rule of construction, that a special order will supersede a standing rule only where they in terms conflict, or where it is or ought to be foreseen, when given, that its execution is incompatible with the latter, or becomes so afterward by some action of the giver, taken with reasonable ground to expect that effect. In such cases the intention to supersede it may be fairly presumed. But where such incompatibility arises only upon unforeseen events not so brought about, whatever exceptions should be allowed in view of their comparative importance in particular cases, as a rule, the special order must yield.

There is no evidence in the record tending to prove that the train-master, when he gave the special order, had any reason to apprehend that its execution would be impracticable without disregarding the standing rule. The time therein designated for the run was only an hour less than the average time of deceased upon it. He had made it in that time, and often within half an hour of it; and it does not appear that on any of those occasions it was found necessary to disregard the standing rule. On the occasion in question the load he hauled was nearly all through ” freight, so that no unusual delay on its own account was probable.

Her is there any reason to suppose that when the order to the conductor of Ho. 22 at Effingham was given, it was, or ought to have been known, that its execution would put that train in the way of the wild. Its card time at Champaign was four hours and a quarter ahead of that designated for the wild; and although it had left Centraba two hours and a half late, it had made up forty-five minutes in the run to Effing-ham. The order to it, heretofore quoted in part, was, in full, as follows: “When you found you had one load for Effing-ham, why did you not take one load from there, so as to make full train? I don’t want you to run over the road unimportant freight without full train. If any empty twenty-ton box cars at Mattoon, take them to Areola, and pick up. all the loads you can find and engine is able to haul.” From which it is clear he did not then know there were any such .empty cars at Mattoon, nor how many loads the conductor could pick up or haul. Hence he had no reason to expect it would be overtaken by the wild, nor that, if it should be, it would endanger or obstruct that train, but rather that it would be safely passed as was the other regular at Tolono, of which also the wild had no notice, except that it was somewhere ahead.

It would seem from the evidence, that a moving train ahead, if able to make its own proper time, is not regarded by railroad men as an obstruction to a faster one following, p¡ obably for the reason that each would almost necessarily get notice of the other by seeing or hearing it in time to so increase the speed of the one and reduce that of the other as to avoid a collision; and if the one ahead should become disabled between stations, the one following would be advised of it either by telegraph or by special signal sent back for that purpose. The danger appears to be from a train ahead standing at a station, and so unable to get out of the way of one coming in at full speed without notice. Hence the great importance of such a rule as Ho. 10. If not framed with special reference to such cases, it had its most forcible application to them; and in the light of the evidence, it is apparent that its usefulness would be greatly impaired by anything that would, lead the following train to expect notice, from the train master, of the one ahead.

We see nothing in the special orders or any other action of the train-master, indicating an intention or making an occasion to supersede or suspend that rule; nor anything in the condition or circumstances of the wild train to exempt it from the rule of practice as to notice. In our opinion, therefore, the proposition contained in paragraph fourteen of plaintiff’s instructions, “ that if you believe it was not reasonably possible for him to obey the general rules and also the special order, then it is for the jury to say, under all the evidence, which he ought to have observed,” was erroneous. It certainly was not possible for him, at the time of the collision, reasonably or unreasonably, to comply literally with both; and so the jury justified him in disregarding the standing rule. This seems to be the only explanation of their verdict, but the impossibility consisted alone in the fact that he had already failed as to the special order. The time specified in it had already passed, and in this literal sense he could have no choice as to which he ought to observe. It was possible to comply with the standing rule only. And for aught that appears, this may have been due to his own fault. A difference of fifteen or twenty minutes in the whole run would have enabled him to comply with both. But if he had previously made the best time he could, and could have reached Champaign in the time ordered by disregarding the standing rule at Savoy, and only by so doing, it would have been his duty to approach that station with the care required by the rule. The making or saving of a few minutes of time, under the circumstances shown, would not have justified or excused the risk he took in disregarding it.

We find, and think the jury were bound to accept as facts proved without contradiction, that the omission of notice to the wild train of the position of the regular, was in accordance with the general method of the company in the movement of such trains; that this method was known to the deceased, and that with such knowledge he voluntarily continued in its service and assumed the risks incident to it; that it was a prudent and proper method, and adherence to it in this case was not negligence; that the deceased, in approaching the station at Savoy as he did, failed to use ordinary care for his own safety, irrespective of rule 10, and clearly violated his duty as expressly imposed by it.

Our judgment being based in part upon such finding, differing from that of the jury, the clerk will recite therein the facts so found.

For the reason above given, the judgment of the Circuit Court will be reversed.

Judgment revet'sed.


text:
    Louis H. Bohrer v. Peter Stumpff and James T. Edwards.

      Contract for Sinking Well—Action to Becover Balance—Evidence— Impeachment of Witnesses—Res Gestae—Instructions.

    1. In an action to recover the balance alleged to be due on a contract for sinking a well, the contention being as to whether the plaintiffs should continue Hie work until water was found or the "owner satisfied, this court declines to interfere with a verdict for them.
    2. Under such an agreement a reasonable depth, considering the means to be used, need only be attained.
    3. Evidence in such cases as to the nature of the work and the progress made per day, is admissible as part of the res gesice.

      4. In the case presented, the refusal to allow a witness to testify as to whether he would believe one of the plaintiffs under oath, is not, in view of the evidence", such a material error as to justify a reversal.
    5. A judgment will not be reversed when it is probable that the evidence, the exclusion of which is complained of, would not or should not have changed the result if admitted.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Tipton & Beaver, for appellant.
    Messrs. Neville & Lindley, for appellee.
   Wall, P. J.

Tiie question of fact in this case, which the jury found in favor of the plaintiffs, was whether the contract for boring required the plaintiffs to continue the work until the defendant was satisfied, or until water was found. If it did so require, then the plaintiffs were bound to go only a reasonable depth, considering the means with which they were equipped for doing the woik. If no particular distance was specified, it would be unreasonable to require them to go further than such boring could he prosecuted without machinery. It is true the object in view was to find water, and as the well had been sunk eiglity-six feet when the boring was commenced, it was probable that water would be reached within such distance, as the bore-hole could be sunk without machinery, which it was well known the plaintiffs were not proposing to use. The evidence was very conflicting as to what the agreement was, the defendant saying and proving by others that the plaintiffs were to go until they found water or he told them to stop, and they saying that no particular depth was specified, in which they were corroborated by another witness. The verdict of the jury settled this conflict, and we are inclined to think the conclusion thus reached is according to the real facts of the case.

It is urged the court erred in not permitting the witness, Burtis, to state whether he would believe Stumpff under oath. The witness had stated that the general reputation of Stumpff for truth and veracity was not very good. In Eason v. Chapman, 21 Ill. 33, it was held that the witness might be asked whether, from the reputation of the person, he would believe him under oath, and that it was error to refuse such question to be put. Breese, J., dissented vigorously and discussed quite fully the English and American authorities. In Laclede Bank v. Kerler, 109 Ill. 390, the Supreme Court held that while such question was a proper one, it was not essential, and that it was optional with the party seeking to impeach, whether he would ask it or not. In O’Beily v. Fitzgerald, 40 Ill. 310, and in City of Chicago v. Hislop, 61 Ill. 86, it was said that only in extraordinary cases would a new trial be granted, merely to permit a witness to be impeached, and it is now the invariable rule that a judgment will not be reversed when it is probable that the excluded evidence would not, or should not, have changed the result.

We think it ought not to have had any substantial effect on the jury, or rather any additional effect, if the witness had said that he would not have believed the person under oath. He could have made such reply only on the basis of the reputation which he had stated. The error is not so material in view of the evidence in the case as to justify the reversal for that cause. There was no error in permitting the plaintiffs to prove the nature of the work, and how much progress per day they were able to make. It was a part of the res gestee, and admissible. Nor was there error in modifying the defendant’s instruction by adding the words “ originally made ” referring to the contract.

The defendant’s position was, that by the original contract the plaintiffs were to dig the well at one dollar per foot, until he told them to stop, and then to bore at twenty cents per foot until he was satisfied, or water was found, and it was not improper in an instruction upon this hypothesis to embody that idea, bio other objections are urged and the judgment will be affirmed.

Judgment affirmed.


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    A. B. Roberts v. N. M. Carter.

      Negotiable Instruments—Notes—Exchange after Maturity—Waiver of Interest—Technical Consideration—Evidence—Instructions.

    1. Where the parties to a contract voluntarily enter into a new agreement, varying its terms, whereby new liabilities are involved and assumed, such act gives rise to a new consideration, the adequacy of which is a question for the parties alone and not for the court.
    2. In an action brought for the recovery, among other things, of interest on an overdue promissory note, which was delivered to the maker after maturity in exchange for new notes made by him, there being a contention as to the terms upon which said exchange was made, this court holds as erroneous the refusal of the trial court to instruct the jury in behalf of defendant, that an agreement upon the part of the payee of such overdue note to waive all interest on the receipt of new notes, would be based upon a good and sufficient consideration.
    3. An instruction not based upon the evidence is bad.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Blinn & Hoblit, for appellant.
    It has been held that a promise to satisfy and release an overdue promissory note for a given sum, upon the payment in money of a less sum, is not binding for want of a consideration; yet it is well settled that a delivery by the debtor to the creditor of any article of personal property, or any other legal right or advantage which he did not before have, or binding himself to do or perform some injurious act or thing which he was before not bound to do, upon the promise of the creditor that it shall be received in settlement and satisfaction of the note, will effectually discharge and satisfy the note, although the thing received or promised to be done may be of much less value than the amount due on the note. Vol. 1, Part 1, Smith’s Leading Cases, 8th American edition—pages 639, 640, 646, 649, 658; • Curlewis v. Clark, 3 Exch. 375, and 16 Q. B. 1039; Bank v. Huston, 11 W. N. C. 380; Savage v. Everman, 70 Pa. St. 315; Harper v. Graham, 20 Ohio, 106; 3 American and English Encyclopaedia of Law, 834.
    Even in courts where it has been held that the payment of a less sum than is due, upon an agreement to release and satisfy the debt, will not satisfy the debt and amount to an accord and satisfaction, still it is said that this doctrine is wrong in principle and unjust, and the courts have therefore departed from it on slight distinctions. Kellogg v. Richards, 14 Wend. 116; Brooks v. White, 2 Met. 285; Reynolds v. Pinhowe, Cro. Eliz. 429 ; Sibner v. Tripp, 15 M. & W. 22 ; Pinnell’s Case, 5 Coke, 117; Boyd v. Hitchcock, 20 Johns. 76.
    The acceptance by the creditor of the negotiable security of the debtor himself, has been held in law a satisfaction of a debt of greater amount. Sibner v. Tripp, 15 Meeson and Welsby, 37; Harper v. Graham, 20 Ohio, 106; 3 American and English Encyclopædia of Law, 814.
    Where the creditor has taken a promissory note for a preexisting debt or note, and seeks to recover on the original claim or note, and the note last taken is under his control, he will be defeated in his suit unless he produces and cancels such note at the trial. Vol. 1, Part 1, Smith’s Leading Cases, page 658, 8th Am. Ed ; Hughes v. Wheeler, 8 Cowen, 77; McConnell et al. v. Stettinius et al., 2 Glim. 707-13; Thomas v. Trustees of Schools, 16 Ill. 161.
    It was error to refuse to instruct the jury for appellant that the making and delivery by him to appellee of the three notes for $433.50, $220 and $780 was not a valid consideration for his promise to satisfy and release the interest on the promissory note for $1,452.94—if the jury should believe from the evidence appellee had so promised.

      A creditor who has made-a contract with his debtor, whereby he surrenders to his debtor the original note he holds against the debtor, and receives the notes of his debtor for a less sum than the original note, can .not rescind the contract, even though it be without consideration, and recover on the original indebtedness, without placing or offering to place his debtor in statu guo.

    Where a creditor holding a promissory note not providing for the payment of attorneys’ fees, by a contract with his debtor tabes notes for a less amount, providing for the payment of attorneys’ fees, in satisfaction of the original note, the provision in the notes so taken for the payment of attorneys’ fees is such a consideration as to make the contract valid and binding. Harper v. Graham, 20 Ohio, 106.
    Messrs. Beach & Hodnett, for appellee.
    There was no legal consideration for waiving the interest. Stuber v. Schack, 83 Ill. 191; Kellogg v. Olmstead, 28 Barb. (N. Y.) 96; Same case, 25 N. Y. 189.
    Where it appears from the evidence that the verdict is right, the case will not be reversed for error in the instructions. Lundy v. Pierson, 83 Ill. 241; Burling v. Illinois Central Ry. Co., 85 Ill. 18; Independent Order of Mutual Aid v. Payne, 23 Ill. App. 171.
   Wall, P. J.

Appellee held the promissory note of appellant for $1,452.94, dated May 13, 1884, bearing seven per cent, interest per annum, aud due one year after date.

On the 16th day of May, 1887, this note being wholly unpaid, and appellant being financially embarrassed, the parties agreed that the appellant should give new notes for the principal sum, and that the old note should be surrendered. The new notes then given were: the first for $433.50, due July 1st, after date; the second for $220, due two years after date, and the third for $780, due three years after date; the last two bore interest from date at seven per cent., and all three contained a provision for attorneys’ fees in case of suit brought thereon. The aggregate sum of these notes is less than the principal of the original, by $19.44, but it is not denied that this was by mistake, and that appellant is liable for such difference. The contention is as to the interest for three years upon the original note.

It is insisted by the appellee that it was a part of the arrangement; that, for the release of said amount of interest, the appellant was to transfer to appellee a judgment held by appellant against one Lacock, and that, though often requested to do so, he did not make such transfer, while the appellant says, that in consideration of making the new notes, the interest due upon the old one was discharged.

The present suit was brought to recover the amount due upon the first one of the new notes, the interest upon the old, and the difference of $19.44 above stated.

There was a trial by jury, and the parties testified, each giving his version of the transaction, resulting in a verdict for appellee, upon which, after overruling a motion for new trial, the court rendered judgment, from which an appeal is prosecuted to this court.

It is assigned as error that the court gave, at the instance of plaintiff below, instruction number one, and we are disposed to hold the instruction faulty, because not predicated upon the evidence. It proceeds upon the hypothesis that appellant represented the Lacock judgment to be collectible, and that it appeared to be worthless, wherefore appellee was not bound to take it and might sue for the interest. The proof on the part of appellee was that appellant had refused to transfer the judgment, and though it was from the beginning a matter of doubt whether it could be collected, yet he had not declined to take it on that ground (though he did not accept it when tendered in the course of the trial) and upon the part of appellant the proof was that it had nothing to do with this settlement, but was involved in another settlement between appellant and the wife of appellee, in regard to a judgment she held against the appellant.

The instruction assumes a state of facts not in proof, and for that reason should have been refused.

The chief question presented by the record arises upon the action of the court in giving the third instruction asked by the plaintiff, and in refusing the third and fourth asked by the defendant. They are as follows:

Asked by plaintiff and given:

“ Third. Should the jury believe from the evidence that Carter, without any consideration, agreed to make Boberts a present of the interest due upon the $1,452.94 note on account of his losses with,Danley, then you are instructed that such agreement would not be binding upon Carter in this case, and Carter would be entitled to recover the amount of such interest in this case.”

Asked by defendant and refused:

“Third. If the jury believe from the evidence that the defendant was indebted to the plaintiff in the amount of a note for $1,452.94, with three years’ interest thereon, and that thereafter plaintiff made a settlement of said note and interest with defendant, by which defendant gave and delivered to plaintiff the three notes of $433.50, $220 and $780, offered in" evidence, and that the said three notes were so delivered and given to plaintiff, in consideration that all interest on the note for $1,452.94 should be waived and remitted, then in law that would be a sufficient consideration to support an agreement to waive and remit such interest, if you believe from the evidence that such agreement to waive and remit said interest has been proven.

“ Fourth. • The court instructs the jury for the defendant, that if they believe from the evidence, the defendant settled the note of $1,452.94 by giving the note in suit, and the other two notes of $220 and $780 .executed by defendant and offered in evidence, with the agreement and understanding that all interest on the $1,452.94 should be waived and remitted, then you are instructed that the plaintiff can not recover any interest on the note for $1,452.94 in this action.”

With-regard to the instruction given for plaintiff, it may be said that it does not present any hypothesis fairly deducible from the evidence, in that it omits all reference to the fact that the giving of the new notes was the inducement for waiving the interest. The point of law raised by this instruction (in view of this feature of the evidence) and those refused, is whether the giving of these new notes may be deemed a sufficient consideration for such remission of interest upon the old notes. These new notes were payable at a future day, were negotiable, and provided for the payment of attorney fees in case of suit; one of them was due in a short time without interest; the other two had much longer time to run and bore interest. The old note was due and dishonored; nothing could be done with it except to bring suit upon it at the expense of the holder, so far as attorney fees were concerned. A new undertaking upon different terms was substituted for the old, and the parties to the contract were mutually satisfied with the arrangement, and each one, for his own reasons, preferred it to the old.

It is difficult to understand why parties who are competent to contract, should not be permitted to judge for themselves whether such a change in their situation is desirable, and if they so regard it and mutually agree, why the law should decline to enforce the agreement.

We have been referred to the celebrated case of Cumber v. Wane, 1 Strange, 426, where it was held that the giving of a promissory note for less than the sum due, was not a satisfaction of the balance.

The doctrine of that case has not been generally accepted, and courts have departed from it upon very nice distinctions. The rule is a hard one, and not adapted to the exigencies of practical business affairs. It is so purely technical and works so ‘harshly that courts have not hesitated to say that where the thing accepted is not money, but some other thing, as a horse, hawk, robe, or even a pepper corn, the value being immaterial, the satisfaction is good.

We have no disposition to enter into a discussion of the cases in which the rule has been followed or disputed. After a full consideration of the question, both upon principle and authority, we are of opinion that where the parties enter into anew agreement, whereby new liabilities are assumed, both parties concurring in varying the contract, the change of position thus occasioned and the mutuality of the new agreement, give rise to a consideration, the existence of which being certain, its adequacy is for the parties alone, and not for the court.

A note payable at a future day may be negotiated and can be utilized in ways impossible with paper that has matured, and if it contains a provision, as here, by which the expense of attorney fees may be saved to the holder in the event of suit, it has additional value. Whether these particulars are of sufficient importance to compensate for what is surrendered to secure them, is not to be questioned. There is a technical consideration, and the party to be affected having accepted it, can not afterward be permitted to say it was inadequate. This view, we think, accords with the current of authority, and in our judgment it has the support of sound reason.

For a complete review of the whole subject, reference may be made to the notes to Cumber v. Wane, 1 Smith’s Lead. Gas., 8th Am. Ed., 6, 33, and among other cases therein, Sibree v. Tripp, 15 M. & W. 22, and Curlewis v. Clark, 3 Exch. 379. See, also, 3 Am. & Eng. Ency. of Law, 834; Harper v. Graham, 20 Ohio, 106 ; Gordon v. Moore, 44 Ark. 349 ; Heal v. Handley, 116 Ill. 418.

We are of opinion the court erred in giving the instruction for plaintiff, and in refusing those for the defendant upon this point.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    William C. Mitchell v. Soloman Plaut.

      Landlord and Tenant—Recovery of Rent—Landlord's Negligence— Water Pipe—Damages—Evidence.

    1. A landlord is liable to his tenant in possession, for injuries caused by him through negligence in making repairs.
    ‘2. In an action brought for the recovery of rent, damages being claimed by the tenant for injury to his stock through a choked water pipe, this court holds that the evidence relating to such injury was improperly excluded.

      [Opinion filed January 21, 1889.]
    Appeal from the County Court of Vermillion County; the Hon. D. D. Evans, Judge, presiding.
    Mr. W. R. Lawrence, for appellant.
    There is an implied covenant in every lease that the tenant shall not injure the premises, and a reciprocal covenant that the landlord shall not do anything to injure the rights of the tenant. United States v. Bostwick, 4 Otto, 66.
    Notwithstanding the covenant in this lease upon the part of the lessees that premises were in good condition at beginning of term, yet if they were defective through fault of lessor, and were not noticeable to lessees, and unknown to them, the lessor is liable for the damage resulting from the defective condition of the premises. U. B. Mfg, Co. v. Lindsey, 10.Ill. App. 586.
    If the landlord undertakes to repair, and does it in a careless manner, to the injury of tenant, he is liable to damages. 1 Washburn Real Prop. 461; Grill v. Middleton, 105 Mass. 235; Plummer v. Harper, 14 Am. Dec. 343. And he may recoup the damages in an action for the rent. Wright v. Lattin, 38 Ill. 283. And this rule applies when he employs others to do the work which causes the injury. 1 Wash. Real Prop: 540; Robbins v. Chicago, 4 Wall. 657.
    In Glick v. Maurer, 75 Ill. 289, the tenant was in control of the first story of the building and the landlord of the second story, and the landlord undertook to repair the roof, whereby the tenant was injured; the landlord was held liable for the damages.
    It was a question of fact for the jury to determine whether or not the damage claimed by appellant was caused by the appellee in fixing the roof. It was open to argument as to when and how the down pipe became stopped, which is conceded to have caused the damage. And this being a proper question for the jury, the court erred in withdrawing this portion of the case from it. If the stoppage of the pipe was caused by the negligence of the plaintiff, and was not known by the defendant when lie moved into the building, then, we think, there can be no doubt that the law is on our side. This was a matter of fact, and the law could not be applied until it should be determined. C., R. I. & P. R. R. Co. v. Lewis, 109 Ill. 120; Crowley v. Crowley, 80 Ill. 469; Smith v. Smith, 50 Ill. 291.
    Messrs. Penwell & Lindley, for appellee.
   Conger, J.

This was an action for the recovery of rent, and resulted in a judgment in favor of appellee for eighty dollars.

The defense sought to be established was damages to the stock of goods of appellant, caused, as he claims, by defective water pipes, whereby the rain from the roof was caused to leak through the walls of the building, and thence to the goods in the store room.

After the evidence was in, the court, upon motion of appellee, excluded from the jury all the evidence relating to the claim of appellant for damages on account of such leakage, and this is assigned for error.

The written lease contained provisions amply sufficient to warrant the court in this, provided the leakage was not caused by the action of appellee, after appellant had taken possession, in repairing the roof.

While the lease would protect the lessor from liability for any damages from other causes than his own direct interference, still he could not, after the lease was executed and the lessee had taken possession, by repairing the roof, be the cause of a leakage, and escape liability.

There was some evidence tending to show that the leakage was caused by one of the down pipes becoming stopped up from the carelessness of appellee’s workman, while engaged in repairing the roof.

We express no opinion upon the weight of this evidence, but hold that it was the right of appellant to have it submitted to the jury, so they might determine whether the damage was caused by appellee or his workmen; for in that case he would be liable to respond for such damages as were the natural and proximate result thereof, but not otherwise.

For the error in withdrawing this evidence from the jury the judgment of the County Court will be reversed and the cause remanded.

Reversed cmid remanded.


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    German Insurance Company v. Wilhelmina Gueck et al.

      Fire Insurance—Bill to Correct Policy and Enforce Payment—Evidence —Mistake.

    Upon a bill to correct a policy of fire insurance, and enforce its collection, this court declines to interfere with a decree granting relief, as the evidence clearly shows a mistake.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Calhoun County; the Hon. George H. Herdman, Judge, presiding.
    Mr. F. H. Greathouse, for appellant.
    Messrs. Wilderman & Hamill, for appellees.
    The party alleging a mistake must show exactly in what it consists, and the correction that should be made; and the evh donee must be such as to leave'no reasonable doubt upon the mind of the court as to either of these points, or the relief must be refused. The mistake should be proved as much to the satisfaction of the court as if it were admitted. Hearn v. Marine Ins. Co., 20 Wall. 488; Sutherland v. Sutherland, 69 Ill. 488; Emory v. Holder, 69 Ill. 221; Mead v. Westchester F. Ins. Co., 64 N. Y. 456; Ford v. Joyce, 78 N. Y. 618; May on Insurance, Sec. 566, and note; Kerr on Frand and Mistake, pp. 409, 421, 422; 1 Story's Eq. Jur., Secs. 152, 157.
    It must be alleged and proved that the mistake is mutual, .that is, the mistake of both parties; that both parties have done what neither intended. A mistake on one side may be ground for rescinding, but not for reforming, a contract; where the minds of the parties have not met, there is no contract to be rectified. Hearn v. Marine Ins. Co., 20 Wall. 488; Bishop v. Clay Ins. Co., 49 Conn. 167; Emory v. Mohler, 69 Ill. 221; Sutherland v. Sutherland, 69 Ill. 488; Wilson v. Byers, 77 Ill. 80; Mead v. Westchester Fire Ins. Co., 64 N. Y. 456; May on Insurance, Sec. 566, and note; Kerr on Fraud and Mistake, pp. 409, 421, 422; Pomeroy on Contracts, Sec. 251.
    Where parties neglect to acquaint themselves with the terms of the instruments, although they have them in their possession for years, or where, having full and particular knowledge of the facts, they do not acquaint the other party of their existence, but lead such other party to infer the existence of a state of facts differing from the true state, relief can not be granted to the party so negligent, where such party does not show fraud or overreaching. Graves v. Boston Marine Ins. Co., 2 Cranch, 419; Bishop v. Clay Ins. Co., 49 Conn. 167; Kinnerty v. Etiwan Phosphate Co., 70 Am. R. 669; McDaniels v. Bank of Rutland, 29 Vt. 230 (70 Am. Dec. 406); Robertson v. Smith, 11 Texas, 211 (60 Am. Dec. 234); Belt v. Mehlen, 2 Cal. 159.
    There being no fraud or overreaching shown, and the complainants having received and retained the different policies without objection for about fourteen years, and the first two being in their native language, this is really conclusive as to the original understanding of the parties, notwithstanding they may not have read the policies. Fuller v. Madison Mut. Ins. Co., 36 Wis. 599; Bishop v. Clay Ins. Co., 49 Conn. 167.
    Here the condition of the title of the property and the names of the real persons who desired the insurance was a matter peculiarly within the knowledge of the complainants and of Fred Gueck, and it was their duty to impart this information to the agent of the company, and if Fred Gueck was their agent, to make that fact known. And they had no right to assume from the loose talk which occurred when Fischer was assessing some months prior to the- time Fred Gueck applied for the insurance, that Fischer knew all about the title and that G ueck was acting as agent. Graves v. Boston Marine Ins. Co., 2 Cranch, 419; Wheeler v. McCormick, 36 Ill. 114; Kauffman v. Robey, 60 Tex. 308; 8 Wait’s Actions and Defenses, 58.
   Conger, J.

This was a bill in chancery for the purpose of correcting a policy of insurance and enforcing its collection. The facts necessary to an understanding of the case, are substantially as follows: In 1869, one Christian Fiedler died, leaving him surviving his widow, appellee, Wilhelmina Gueck, and the other appellees, his children and heirs at law. He owned, at the time of his death, the N. E. Qr. Sec. 20, Town 11 South, Bange 2 West, in Calhoun county. After his death, his widow was appointed administratrix, obtained permission from the County Court and built on said premises a house costing about 82,200, for which she paid out of the money and proceeds of personal property belonging to the estate, and that said estate owed to said widow 8647.41.

That in January, 1871, the said widow was married to Frederick Gueck, and the house was built in the fall of 1872, by Morris Fisher, who was a carpenter and builder, and also the agent of the appellant insurance company.

That while Fisher was building the house, he asked Mrs. Gueck to insure the house ; she referred him to her husband, and after the three had talked the matter over, Gueck agreed to come over to Hardin, where Fisher lived, and' let him know the conclusion reached.

On October 14, 1872, Gueck went to Fisher, and told him lvs wife had concluded to insure the house for 81,400 in his company; Fisher said he had no time just then to make out the application; asked Gueck if he knew the numbers of the land, and was told that he did not, and replied that he would examine the books at the recorder’s office and make out the application all right.” Fisher did make out the application, but it was not read to Gueck or any of the parties in terested, and a policy was executed and delivered to run five years, and the premium was paid, and at the expiration of five years another policy was issued by the same company in renewal of the first.

In October, 1882, a third policy was issued by the same company, in the same amount, for five years, and in October, 1886, while said policy was in full force, the house burned down and was a total loss.

In November, 1886, the adjuster of the company came to adjust the loss, but upon learning by the records that the title to the land was in the estate of Christian Fiedler, the policy being in the name of Frederick Gueck, he refused to adjust the loss, or pay i't.

Fisher had been the agent of the company for over twenty years, and had been assessor and treasurer of Calhoun county, and the books of that office had always carried this land as belonging to the estate of Christian Fiedler.

The first application contains no questions nor answer as to title; the second is a renewal of the first, and nothing is said as to "property or interest; while in the third, the land is incorrectly described as being in Sec. 6, instead of Sec. 20, and the following questions appear: “5. Title. Have yon fee simple title? Good. If not, what kind of title have you?” to which there is no answer.

Mr. Gueck states that he was acting as agent for his wife and her children in procuring the insurance, and left the matter entirely with Fisher; that Fisher knew about the title, as he supposed, and having built the house, knew its value and surroundings. Fisher took upon himself the burden of answering such questions as he deemed important, and Gueck asked no questions, nor answered any, but with the most implicit trust that Fisher would make it “all right,” as he said he would, signed such applications as Fisher made out and presented to him.

Fisher says he knew there was no intention on the part of Gueck or any of the parties to defraud the company by taking the insurance in his name, but that a mistake had been made in the application and policies, and they were made out in the ■wrong name.

We think the evidence clearly shows that a mistake was made which should be corrected, and that the decree of the Circuit Court is right and should be affirmed.

Decree affirmed. ;