text:
    William Frederick v. Avery G. Case.

      Sa les — Con dition a l Sale — Furnace—Evidence—In strucfions.

    1. In an action to recover the purchase price of a furnace, it is held: That the questions whether the contract was an absolute or conditional one, and whether the furnace properly heated the house, were fairly submitted to the jury; and that there is no such conflict between the evidence and the verdict as to require a reversal.
    2. The purchaser of a chattel, the contract being conditional upon its answering the purpose for which it was designed to the satisfaction of the vendee, must, within a reasonable time, if it proves unsatisfactory, so notify the vendor.
    3. Testimony as to the value of a given article by a person who is not shown to have any knowledge thereof, is inadmissible.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.

      Mr. Charles Wheaton, for appellant.
    There was a warranty by appellee that the furnace would work well and heat the rooms in appellant’s house that had been piped. It was not necessary that the word warrant should have been used. Any positive representation of the quality of an article or any positive representation that it will answer the purpose for which it is designed, amounts to a warranty. Any positive representation made at the time of the sale, by the seller, for the purpose of inducing the buyer to purchase, is a warranty. Hawkins v. Berry, 5 Gilm. 36. When a representation is positive and relates to a matter of fact it constitutes a warranty. Sparling v. Marks, 86 Ill. 125 ; Robinson v. Harvey, 82 Ill. 58.
    The theory of appellant was, that the agreement between him and appellee was, that appellee should put a furnace in his house and unless it worked to his satisfaction, appellee would put it in and take it out without any expense to appellant. If such was the agreement, then the law is, that whether the furnace was satisfactory or not was to be determined alone by appellant, and whether it worked well or not was immaterial. Goodrich v. Van Nortwick, 43 Ill. 445.
    And the mere fact that appellant did not, within a reasonable time, notify the plaintiff that the furnace did not suit) would not of itself, as a proposition of law, enable tlie plaintiff to recover, nor authorize a recovery of the contract price-The fact he did not give notice would only raise a presumption against appellant that the furnace did suit.
    The not giving notice was a matter that affected only the quantum of evidence in proving that the furnace did not suit. It was a mere fact to go to the jury to be considered by them in determining the question as to what the agreement really was and whether the furnace did suit. And it was an error to instruct the jury, as was done substantially in this case, that if appellant did not give the notice he had no defense.
    The cases of Shields v. Reibe, 9 Ill. App. 598 ; Fielder v. Starkin, III Bl. 17; Bordman v. Johnston, 12 Wend. 556 ; Thornton v. Wynn, 12 Wheat. 183, and Poulton v. Latimore, 9 Barn. & C. 259, fully establish the doctrine that the not giving the notice only affects the question of fact as to whether the goods had the defect complained of, and only raises the presumption against the buyer that they had not.
    In the case of Shields v. Reibe, supra, it is expressly held that an instruction which tells the jury that it is the duty of the defendant to give the plaintiff timely and reasonable notice of the defect complained of is erroneous. The decision in that respect is in accordance with the weight of authority and is the law.
    Messrs. Hopkins, Aldrich & Thatcher, for appellee.
   C. B. Smith, J.

It appears from the evidence in this case that appellee was a dealer in hot air heaters or furnaces called the Boston Peerless, and that appellant, who had recently built a new house, negotiated with appellee to have a furnace placed in his house. Appellee had a new furnace called the Western Peerless which he supposed to be an improvement on the Boston Peerless and sold that one to appellant. Shortly after this, appellant made some complaint that the Western Peerless would not work, and appellee then informed him that he had put in three other Western Peerless furnaces and that they were not working satisfactorily and that he would take them all out at his own expense and replace them with his regular Boston Peerless. Appellant made' no objection to the change, and it was made accordingly'. The new or second furnace was placed in the house in September or October, 1SS5. This suit is now brought to recover the price of the heater. The principal controversy grows out of the terms of the contract. Appellant testifies that the contract was a conditional one ; that appellee agreed to put in the furnace for §176, on the express condition that it should suit appellant; that the furnace was to remain the property of appellee, unless it suited appellant, and that, if it did not suit him, it was "to be put in and taken out without a cent of cost to him. Ho time was fixed for payment. This was the contract as stated by appellant.

Appellee swears that they had had frequent conversations about the furnace, and that appellant knew what furnace it was and asked him for his lowest figures, and that he gave him $176 as the lowest price, and that ajipellant then replied: “ Go ahead and put in the furnace and I will take it.” Appellee testifies that the sale was an absolute one and that there were no conditions to it. ¡Nothing was said about when the furnace should be paid for. Appellant testifies that the furnace did not work well. and that it leaked gas and did not heat his house well, and that he made frequent complaint to appellee about the defective working of the furnace. Appelleé denies' that any complaint was ever made to him about the furnace until more than a year after the furnace was put in, and only after he had sent his bill for the furnace. On the trial evidence was submitted on both sides as to the sufficiency of the furnace to heat the house, and showed more or less conflict. The trial resulted in a verdict for appellee for the full amount of his claim, $176.

A motion for a new trial was made and overruled, and judgment entered on the verdict. Appellant brings the case here for review, and urges that the verdict is against the evidence, and that the court erred in giving and refusing instructions, and in rejecting proper testimony offered by appellant.

As to whether the contract was an absolute or conditional one, and as to whether the heater properly heated the house, we-have only to say they were both questions of fact, fairly submitted to the jury, and we see no such conflict between the verdict and the evidence as would justify us in setting aside the verdict for that reason. On the contrary, we think the evidence supports the verdict. The case has already been twice tried, and two juries have found the same way. We see no reason to believe that another jury would find differently.

The following instruction was asked hy appellant on the trial in the court below, and given as modified by the italics:

“If the jury believe from the evidence that the agreement of the parties in this case was, that the plaintiff should put a furnace in the dwelling house of the defendant, and that unless it worked to the satisfaction of the defendant, that he, the plaintiff, would put it in and take it out and away without any expense to the defendant, and if the jury further find from the evidence that the defendant was not satisfied with said furnace, then they, the jury, should find for the defendant, notwithstanding they should find from the evidence that the furnace did work well; the law being, that, if by agreement of the parties, the furnace would be satisfactory to the defendant or not, then whether satisfactory or not, was to be determined alone by the defendant, and whether or not it worked well is wholly immaterial. But the court further instructs you that if the furnace was not satisfactory to the defendant, and if no particular time was agreed upon in which the plaintiff should take it away, then it was the duty of the defendant to notify the plaintiff within a reasonable time that the furnace did not suit, and if the jury believe from the evidence that he did not do so, he could not subsequently complain that it did not satisfy him?

Counsel for appellant informs us that the above instruction as asked, without the italics, is in harmony with the decision of the court in the case of Goodrich v. Van Nortwick, 43 Ill. 445.” A reference to that case fails to show any such instruction. hi or does the case itself support any such doctrine as contained in the instruction upon a similar state of facts. The instruction was wrong and misleading on appellant’s own theory of the case; conceding the contract was a conditional one, and that appellant was not bound to keep the heater unless it suited him, it was plainly his duty to exercise his election within a reasonable time, and, if the heater was not satisfactory, to notify appellee and give him an opportunity to remove it. The parties resided in the same town and it is in proof that appellant kept the heater nearly, if not quite, a whole year before he informed the appellee that he would not keep it, and used it to heat his house during the fall, winter and spring of 1885-86.

Appellant contends that the case of Shields v. Reibe, 9 Ill. App. 598, is an authority in support of the instruction. That was a suit brought for ten bags of choice Virginia shelled peanuts, sold by sample, and to be delivered in Chicago at an agreed time. Shortly after the bags arrived at Chicago the purchaser took them to his store without examination and placed them in a dry place. In eight or ten days the peanuts were examined and found to be partly rotten and all spoiled and worthless. Immediately upon the discovery of the condition of the goods the purchaser notified the seller of their condition and refused to pay for them. Upon these facts the court say: “That the plaintiff was not entitled to recover the price, for the reason that the contract was merely executory and for the sale of goods of a particular description and when delivered they were not of that description, and reasonable notice was given by the buyer to the seller of such fact." The defendant pleaded two pleas: First, the general issue, and second,- a plea of failure of consideration. On the trial the court in substance instructed the jury that on a'sale of goods by sample the seller is entitled to a reasonable notice of any defect in the goods, and that it is the duty of the purchaser to give reasonable and timely notice, that the goods are not equal in quality to the sample. The notice was given promptly of the bad condition of the peanuts as required by the instruction, and there was no contention about his failure to give the notice; it was conceded by both parties. The defendant certainly put himself in no worse condition by giving such notice, and if no notice was necessary he was not in a position to complain of the action of the court in telling the jury that it was his duty to do just what he did do — give the notice. The court say that, “as the issues were, the giving of this instruction was erroneous. As the issues stood the verdict "allowing plaintiff full price for his goods was manifestly " against the weight of the evidence.” The issues in that case and this one were different. In this case only the general issue was pleaded. We do not understand that case as holding that the purchaser of a chattel may make a conditional purchase depending on his election to make it absolute, and that he can then never be required to exercise such election and keep the chattel indefinitely without paying for it. We think no authority can be found in support of such a proposition.

Appellant knew how the heater was working and if it did not suit him and he did not intend to keep it and pay for it, it was his duty to notify appellee of that fact within a reasonable time, under his claim of right to reject it if not satisfactory. To now allow him to keep it and use it with the secret intention of not paying for it would be to sanction a gross and palpable fraud. And yet this was what the instruction as asked told the jury appellant might do. The instruction as modified by the court was correct, but erroneous without the modification.

The instruction given on motion of appellee, about which complaint is made, announces the same rule as laid down in the modification of the court to the one above set out, and announces a correct rule of law.

Appellant complains that the court erred in sustaining objections to certain questions asked of one of the witnesses relating to the fair market value of a Western Peerless furnace and of a Boston Peerless furnace in 1885. There was no error in this. There was no evidence to show that the witness had any knowledge of the value of the kind of furnace named, nor did the question relate to the furnace in controversy, nor to one of the same size as the one in controversy.

We have examined this record carefully and can find no such error as would justify a reversal of the judgment, and it is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: C. B. Smith, J.

license: Public Domain

text:
    George Ball v. Henry Ballenseifen.

      Negotiable Instruments — Note—Failure of Consideration — Pleadings and Proof — Variance—Instructions.
    In an action on a promissory note, given in payment for land to which the title has failed, and accepted, when so given, by the plaintiff for an indebtedness due himself from the grantor of the land, it is held: That there i< no variance between the pleadings and proofs; that the verdict, for the defendant is sustained by the evidence; and that there is no error in the instructions.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Marshall County; the Hon. H. W. Gbeeh, Judge, presiding.
    Messrs. E. J. Riely and Bashes & Babhes, for appellant.
    Messrs. Edwabds & Eyahs, forap pellee.
   C. B. Smith, J.

This was a suit on a promissory note, brought by appellant against appellee. The declaration was in assumpsit. The defendant filed two special pleas of failure of consideration, upon which issue was joined. The facts out of which this controversy arose are these, as disclosed by the record:

At the date of the note sued on, one Michael Louis had the title in his own name to the northeast quarter of the northeast quarter of section nine, town thirty, range two. It also appears that Michael Louis was indebted to appellant in the sum of §300 on a note which Ball. wanted paid. Appellee testifies that Ball approached him three or four times and . wanted to 'sell him the land, and claimed the land as his own, hut said lie himself could not make the deed, but that he would get Michael Louis to make the deed, and that he finally consented to buy it for §360 on condition that Ball would give him time, which Ball said he would do.

Afterward, Michael Louis, George Ball, the appellant, and appellee, Ballenseifen, and one Perley, an attorney at law, came together to close up the transaction with deeds, notes and mortgage to secure the purchase money.

The deed was made by Louis and his wife to Ballenseifen, and thereupon Ballenseifen executed one note for §300 to appellant and one note of §60 to Mrs. Louis, these two notes being for the full amount of the purchase money.

Ballenseifen and Perley both swear that this $300 note was made and delivered to appellant at his own and Michael Louis’ request, and to be taken in lieu of the $300 claim appellant had against Louis.

There is no. denial of the fact that the only consideration of this note was the conveyance of the land and its covenants of warranty of title to appellee, and that appellant knew that fact when he took the note. Appellant denies that he procured the sale of the land or had anything to do with its negotiation. In the view we take of the case it is not very important whether he did or not. He was present when the trade was completed, and took, at his own request, the consideration for the land, and he was not then, and has not been since, an innocent holder of the note for value received without notice. At the time the deed was made there was an unpaid judgment against Michael Louis which was then a valid lien against this land, and upon which an execution was afterward issued and levied on the land and the land sold, and a deed afterward in due time made to the purchaser, whereby the title became lost to the appellee, and the consideration of both notes wholly failed.

These facts were properly pleaded, and not denied in the replications. A trial resulted in favor of the defendant below, and he had a judgment for costs. Appellant brings the case here for review, and assigns for error that the verdict and judgment are aga'nst the evidence, and that the court erred in permitting the defendant to make his defense under the pleas, alleging a variance between the proof and the pleas.

Appellant insists that because appellee testified that he made the bargain with Ball for the purchase of the land, that it does not support his pleas, both which are that he purchased the land of Michael Louis. We do not think this objection well taken. The pleas properly averred the purchase to be from the party who held the title and made the deed, and the mere fact that Ball may liage brought the parties together and arranged the terms of the sale in no correct legal sense made him the seller. There was no variance between the proof and the ¡oleas. We also think the evidence sustains the verdict. The jury were justified in finding from the evidence that Bail? the appellant, was the originator of this trade, and that he induced appellee to make the purchase for his (appellant’s) own benefit, and, if that be so, then he must be chargeable with notice of the infirmity of the title he induced appellee to buy, and especially so when he takes the benefits arising from the transaction. The case is not like one acting as the mere agent of another, selling for a commission without other interest in the transaction.

Appellant also insists that the court erred in giving and refusing instructions. We have examined the instructions in the light of the pleading and evidence, and are of opinion the court properly instructed the jury, and that the instructions are not open to the objections urged against them.

Finding no error in the record the judgment is affirmed.

Judgment affirtned. ,


text:
    Wilbur H. Smith v. Martin & Oesterle, use, etc.

      Sales — Joint Liability- New Promise — Parties—Amendment.

      1. This court affirms a judgment for a balance on account of goods sold, on the ground that the defendant was jointly liable with another, and that the evidence shows a new promise within five years to pay the balance due.
    2. A new party plaintiff may be joined with the original plaintiff, upon an appeal from a justice, after trial has begun in the Circuit Court.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.
    Messrs. Fithian & Cowing, for appellant.
    Mr. E. Meers, for appellees.
   C. B. Smith, J.

This is an appeal from the Circuit Court of Will county, from a judgment rendered against appellant for the sum of §11.25. It was brought to the Circuit Court on appeal from a justice of the peace.

It appears from this record that certain employes of the C., P. & S. W. R. R. Co. desired to make a present to the superintendent and auditor of the road, and a fund was subscribed for that purpose, and paid to one Morton, the chief clerk in the auditor’s office, who was also appointed to buy the presents. The appellant was one of the subscribers to the fund. He also appears to have taken some part in buying the presents of appellees; appellees claim and testify that the goods were sold to Morton and Smith and delivered to them, and charged to them on the books. Appellant denies this. There was paid on the delivery of the goods §81.50. Some time afterward §25 more was paid. Morton then left and paid nothing more on the bill until in 1883. There is testimony tending to prove that appellant promised appellee that if Morton would pay one-half the balance, he would pay the other half.

We think the court was justified in finding that appellant was a joint purchaser of these goods, and jointly liable with Morton. We think also that the proof showed a new promise on the part of appellant within five years to pay the balance of the account.

It is urged that the court erred in permitting a new party plaintiff to be joined with the original plaintiff before the justice on appeal, and after the trial had begun and evidence heard in the Circuit Court. There was no error in this. McDowell v. Town, 90 Ill. 359.

Judgment affirmed.


author: Upton, J.

text:
    John R. Ziegler v. Studebaker Brothers Manufacturing Company.

      Sales — Refusal to Accept — Question for Jury — Damages.
    In an action to recover damages for the refusal of the defendant to accept certain carriages and harness, sold and delivered to him under a written contract, it is held: That the verdict for the plaintiff is sustained by the evidence; and that the trial court did not err in entering a judgment on the same, and in refusing a motion for a new trial.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Mr. H. W. Wells, for appellant.
    Messrs. Irwin & Slemmons, for appellee.
   Upton, J.

This was an action in assumpsit brought by appellee against appellant to the October term of the Circuit Court of Peoria County, 1887, for damages for failing to accept and pay for two coaches and one set of coach harness, sold and delivered, as alleged, by appellee to the appellant in the spring of 1887.

The declaration contained three special, and. the common counts. The first special count is for the alleged purchase price of two certain coaches and one set of coach harness sold and delivered; second count for the price of two certain coaqhes and one set of coach harness bargained and sold and the third count was for damages in failing and refusing to accept and settle for the same coaches and harness sold, and) delivered by appellees to appellant.

The pleas were the general issue, nul tiel corporation and set-off. Issue was joined on the first'and second pleas, and two special replications were filed to the third plea of set-off, setting forth that the plaintiff did keep and perform its contract and that it was not indebted to the appellant as alleged in said plea.

The case was heard before the court below and a jury and to maintain the issues joined the plaintiff offered and read in evidence the following contract in writing, viz.:

“Chicago, February 21, 1887.”

“ Studebaker Bros. Mfg. Co., South Bend, Indiana.

Gentlemen,: Please ship me on or about April 1,1887, the two following coaches: one falling front and one stiff top coach, both to be trimmed in dark green cloth, to be painted dark green, gear and body, with black stripe, and one set of black mounted coach harness to go with the above jobs, for which Iagvee to pay two thousand two hundred dollars (§2,200), about one-lialf cash on receipt of goods, balance inside of ono year with secured notes, with interest at seven per cent.”

“John B. Ziegler, Peoria, Ills.”

“Ship O., B. I. & P.”

The coach harness mentioned in the above contract, about which there is no contention, was shipped to appellant by his express direction, some time prior to the 1st of April, 1887, and upon receipt thereof was accepted and at once put in use by appellant.

The coaches were shipped sometime after the 1st Of April, .1887, at the like special request of appellant by letter to apjiellees under date of March 28, 1837, in which the appellant says:

“As the weatheT has held me back and there is no especial hurry for the carriages, I would rather not have them shipped in this storm. You had better hold them a day or two for good weather.” The coaches were shipped to and received by the appellant on or before the loth of April, 1887.

It will be noticed that the written contract did not particularly describe the coaches or harness sold, and evidence on this point was heard on the trial in the court below. It appears that appellees had their carriage warehouse in the city of Chicago, and the appellant resided and was engaged in business as an undertaker in the city of Peoria, Illinois. Appellant went to Chicago to appellees’ warehouse with the view to purchase there, or elsewhere, two coaches for his business. He was shown one of the coaches in question, at least which he insists was to have been the sample of both, except that the one was to be what was called a stiff top, and the other a let down front; in other respects, trimming and general appearance, they were to be alike. Appellant admits that one of the coaches sent him was the same shown and sold him, but insists the other was in no respects like it, that its interior was moth-eaten and damaged, the lamps mounted upon the body instead of the sides of the coach, and that for such and other defects he refused to accept such other coach, but 'was willing to accept the one, and the set of double harness.

The appellees insist that the coaches delivered were in all respects up to, and were, in fact, the same coaches shown and sold to appellant, and fihe same coaches referred to in the contract, and were in no particular defective as claimed by appellant. Ho complaint is made of the harness not being up to the contract.

From this contention some correspondence ensued between the parties. At appellant’s request, the agent of appellee went to Peoria to adjust, if possible, the controversy, but not succeeding, the appellant, about the 26tli of April, 1887, reshipped to appellees at Chicago the two coaches and the set of harness, where the same soon after arrived and were, delivered to the. appellees.

The appellees claimed damages for the non-acceptance of the coaches and harness, in accord with the written contract; of §500 and §100 in cleaning and re-varnishing the coaches, $25 damages on re-sale of the set of harness, §26 for expense of agent’s trip to Peoria, and about §28 for freight on re-shipment of coaches from Peoria to Chicago, paid by appellees, Appellant to this interposed a counter-claim for damages to him for the alleged non-fulfillment of the contract, in not sending the coaches as ordered and sold to him, for the loss of business and for expense and keep of help and horses, of more than sufficient to meet the claim of the appellee.

Failing to adjust this controversy, this suit was brought in the court below as stated. After hearing the evidence and instructions of the court the jury rendered a verdict for the plaintiff in the sum of $25, upon which the trial court, after overruling a motion for a new trial, entered judgment, and to reverse which the appellant brings the case to this court and assigns for error in the trial court, in substance, the overruling of the motion of appellant for a new trial, and in rendering a judgment for appellee on the verdict of the jury.

Other errors were assigned, viz.: The admissions of improper evidence, but no such evidence is pointed out and we fail to perceive any such in the record. The refusal of proper evidence offered on the .part of appellant, and it is said upon this point that an offer was made to show that the set of harness was of less value than §150, which the court excluded, and, as we think, very properly. It was not claimed that the harness was not up to the contract, when received; indeed, the appellant had in fact accepted it and put it to use some time before the contention concerning the coach arose, and when accepted its value became wholly immaterial in this controversy.

No objection is pointed out to the instructions of the court which were given or refused, and none is perceived.

This contention was purely one of fact, and within the peculiar province of the jury. Upon the issues joined in this case, the jury have found for the appellees, 'and hence the appellant could have no claim for any damages for a breach of the contract, as the jury found there was no breach. If the coaches and harness delivered to appellant were the ones purchased by him, as the jury have found, it must he that not only has he no claim for damages in returning the goods to the appellee and refusing to comply with his contract, but he ought to respond in damages sufficient to compensate appellee for all loss occasioned thereby.

It is shown beyond cavil that the harness had been put to use by the appellant, and that the same was damaged for re-sale by such use at least $25, the amount of the verdict.

We have carefully examined this record and the entire evidence and we can not say the jury was not warranted thereby in finding the verdict they did. Indeed, under the evidence, their verdict in our judgment might have been sustained for a much larger sum, but the appellee is not objecting, nor has it assigned cross-errors. The trial court was not in error in refusing the motion for a new trial and entering judgment on the verdict, and finding no error in this cause in the proceedings in the court below, the judgment must be affirmed.

Judgment affirmed.


author: Upton, J. C. B. Smith, J.,

text:
    James Common v. The People of the State of Illinois.

      Bastardy — Baternity of Child — Continuance—Neto Trial — Evidence.
    In a bastardy proceeding, it is held,: That the defendant showed due diligence in endeavoring to procure the testimony of important witnesses, and failing in this was entitled to a continuance; and that under the facts, the record and the circumstances shown, his motion for a new trial should have been granted.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    This was a bastardy proceeding, commenced before a justice of the peace by complaint in writing of Carrie Winkle. The appellant was bound over to the County Court, where a trial was had resulting in a judgment of guilty against appellant, who then appealed to the Circuit Court, where a like judgment was obtained, and appellant brings the case to this court by appeal, and assigns for error, the overruling of appellant’s motion for a continuance of said cause and the overruling appellant’s motion for a new trial.
    Various other errors were assigned which, in the view we take of this case, will not be necessary for us to notice. The complaint on which appellant was arrested was made October 21,1S86. The complaining witness, Carrie Winkle, gave birth to the bastard child February 26, 1887. The principal controversy in the case was as to the paternity of the child.
    The complaining witness, Carrie 'Winkle, testified that appellant was the father; and this was the only evidence to support the charge and her testimony was unsupported by any material corroborating circumstances in evidence in the case.
    There was, on the contrary, considerable evidence tending to show that she had made contradictory statements on material points in issue in the case.
    The appellant positively denied that he ever had sexual intercourse with the complaining witness at any time. She testified in her cross-examination that she never spoke to appellant about her condition, or charged him with the paternity of her child, although residing in the same family, until the day before complaint was made before the justice, October 21, 188 >.
    She further testified that she first spoke of her condition to Bichard Heisler, and that he went with her to see appellant to charge him with its paternity, the day before making the complaint.
    Firs. Brumback testified that Carrie Winkle lived in her family as a servant, and on several occasions went to the house of Bichard Heisler, and upon several occasions she told Firs. Brumback and her mother, “ that if she had not been a good girl her and Fir. Heisler would have done wrong; that was the sum and substance of what she said;” the last time she so stated was the latter part of October, 1885.
    David Brumback, Aim on Brumback and Firs. Brumback, all testify that both appellant and complaining witness lived in their family for a year and more, and during the time when it is charged the child was begotten wrere servants, the appellant employed at work on the farm and the complaining witness as a domestic in the house of the Brninbacks; that they never saw any exhibition of familiarity of any kind between appellant and Miss Winkle while there.
    The complaining witness further testified that Bichard Heisler went with her to see Dr. Smith before the arrest of appellant, and that she was then “doctoring” and that she knew what she was “doctoring” for. She further testified that she went to Mrs. Wright’s to be “doctored” also. •
    We have here briefly alluded to some of the evidence in this case, bearing, as we think, upon the materiality of the absent witnesses and the facts sought to be established by them, as set forth in the affidavit for a continuance, which was refused in the court below, and which is here assigned for error.
    Prior to the calling of this case for trial the defendant moved the court below for a continuance of this cause, and in support of said motion the following affidavits were read and filed in the trial court:
    “ State of Illinois, 1
    Iroquois County, j ss* In the Circuit Court, to the March Term, A. D. 1888.
    The People of the State of Illinois 1 vs. >
    James Common. )

      ' “James Common being duly sworn, upon his oath says: That he is the defendant in the above entitled cause. That he can not safely proceed with the trial of. said cause at the present term of this court, on account of the absence of a material witness, whose attendance he has been unable to procure at this term. Affiant says that the said witness, whose attendance he desires, is one Charlotte Wright, who lives in the city of Gilman, in said county and State. That the said Charlotte Wright would, if present, testify that the proseenting witness told her, the said Charlotte Wright, that one Bichard Heisler was the father of her child; that the said prosecutrix told her this during the time of her pregnancy and before the said child was born; that in this suit the prosecutrix claims that this defendant, and not the said Heisler, is the father of said child.
    “ Afilant says that he knows of no other witness by whom he can prove any such statement or admission of the prosecutrix. Affiant further says that on Friday, the 23d day of March, he went to the home of said Charlotte Wright in Oilman with a subpoena for the purpose of summoning the said Charlotte as a witness in the above entitled cause; that said Charlotte’s husband told affiant that said Charlotte was not at home. Affiant says that he was at said Charlotte’s home three different times on said day and could not find said Charlotte at any of said times. Affiant says he verily believes that said Charlotte Wright was concealing herself for the purpose of avoiding service of said subpoena. Affiant says said witness is not absent through or by any procurement or consent of this affiant, and that this affiant believes he can procure said witness’ attendance at the next term of this court, and affiant says that this application is not made for the purpose of delay bur that justice may he done. Affiant further says that Mrs. C. Heyers was also duly subpoenaed to appear in this cause this day, and is not in court nor in the city of Watseka, and affiant says that he believes, but does not know for a certainty, that Mrs. 0. Heyers will testify to the same admissions made by prosecutrix to her as set out above and made by prosecutrix to said Wright, and that she is not absent by procurement of defendant.
    “James Common.
    “Subscribed and sworn to before me this 26th day of “March, A. D. 1888.
    “John Frith, Clerk.”
    Which said affidavit is indorsed as follows:
    “People v. Common. Affidavit James Common. Filed March 26, 1888.
    “John Frith, Circuit Clerk.”

      “ State oe Illinois, | Iroquois County. J ° In the Circuit Court, to the March term, 1888.
    “ The People of the State of Illinois ) vs. > James Common. j
    “ D. Brumback being duly sworn, upon his oath says: That ou the 24th day of March, A. D. 1888, he went to the house of the said Charlotte Wright with a subpoena for her as a witness in the above entitled cause. That he was unable to find said Charlotte Wright, but verily believes from what said Charlotte’s husband told him that said Charlotte was then at home, but was in concealment to avoid the service of process upon her as a witness in said cause. Affiant says that the said Charlotte told affiant that the prosecutrix had told her Richard Heisler was the father of the child in controversy in this suit.
    “David Brumback.
    “Subscribed and sworn to this 26th day of March, 1888.
    “Jonsr Frith, Clerk.”
    Which said affidavit is indorsed as follows:
    “People v. Common. Affidavit of Brumback. Filed March 26, 1888.
    “ John Frith,Circuit Clerk.”
    “ State of Illtkois, 1 Iroquois County. J ‘ In the Circuit Court, to the March term, 1888.
    “The People of the State of Illinois vs.
    James Common.
    “Charles H. Payson being duly sworn, upon his oath says: That a short time before the commencing of this court for this term, he had a conversation with Mrs. Charlotte Wright in the city of Gilman; that in said conversation the said Charlotte Wright told affiant that the prosecutrix in the above entitled cause had stated to her that one Richard Heisler was the father of a child with which the prosecutrix was pregnant; that said child is the same child of whom the defendant in the above cause, is charged to be the father. Affiant says that'the said Charlotte Wright said she did not want to be a witness for personal reasons. And affiant further says that on Saturday of last week he went to the city of Gilman where said Charlotte Wright resides, with a subpoena to summon said Charlotte as a witness in the above entitled cause.
    “ That he went to the home of said Charlotte Wright and was informed by the husband of said Charlotte that said Charlotte Wright was not at home, and that he did not know where she was or when she would return. Affiant says he verily believes that said Charlotte Wright was at that time at her said home, and that she was keeping herself in concealment for the purpose of evading the service of a subpoena upon her. Affiant further says that he left said subpoena with one J. Y. Milsted, a constable in said city of Gilman, with instructions to carefully watch for said Charlotte Wright and serve said subpoena if possible, and affiant says that the subpoena hereto attached is the one left by affiant with said Milsted.
    “Chas. H. Patsoh,
    “ Subscribed and sworn to this 28th day of March, 1888.
    “ Johh Peith, Clerk.”
    To which affidavit is attached the following subpoena:
    “ State of Illthois, 1
    Iroquois County, j ss" To the Sheriff of said county, Greeting:
    In the name of the People of the State of Illinois.
    “We command you to summon Mrs. Dr. Wright, Jacob Eppelsheimer, Mrs. C. livers, to appear before the Circuit Court of said county, at the court house in the city of Watsekai in said county, on the 26th day of March, 1888, at 2 o’clock p. 3i., to testify and the truth to speak in behalf of defendant in a cause now pending in said court, wherein the people are plaintiffs and Common defendant. And have you then and there this writ, with a return thereon, showing in what manner you have executed the same.
    “Witness the hand of the clerk of said Circuit Court and the seal thereof at his office in Watseka, in said Iroquois county, this 21st day of March, A. D. 1888.
    “ John Peith, Clerk.”
    Which said subpoena is indorsed as follows:
    “ State of Illinois, 1
    Iroquois County, j ss" J. Y. Milsted being duly sworn, upon oath says: That he served the within writ upon the within named by personally reading the same to the said Mrs. C. Hyers, Jacob Eppelsheimer, Mrs. Dr. Wright not found, this-day of March, A. D. 1888.
    “ J. Y. Milsted.

      “ Subscribed and sworn to before me this 26th day of Marcln 1888.
    “ Isaac Bbyea, J. P.”
    "Which affidavit is indorsed as follows:
    “ People v. Common. Affidavit of Chas. H. Payson. Filed March 26, 1888.
    “John Frith, Circuit Clerk.”
    But the court overruled defendant’s motion for a continuance, to which ruling defendant excepted.
    Messrs. Payson & Raymond, for appellant.
    Messrs. R. W. Hilscher, State’s Attorney, and F. P. Morris for appellees.
   Upton, J.

We think the appellant showed due diligence in his endeavor to procure the testimony of the witnesses, in the affidavit named for the trial, and that the trial court should have granted appellant’s motion for a continuance, or conrpelied appellee to have admitted the affidavits under the statute. The evidence in our judgment was very material and could not have failed to have had an important influence with the jury on the trial of the' cause.

Under the facts in this record and circumstances shown, we think the trial court should have granted appellant’s motion for a new trial of the cause, and for these reasons, the judgment of the Circuit Court is reversed and the cause remanded for further proceedings.

Heversed cmd remanded.

C. B. Smith, J.,

dissenting. I can not agree. with the majority of the court. I do not think the affidavit in this case shows any reasonable or sufficient diligence in procuring the presence of the absent witnesses, and I think the court ruled correctly in oven-uling the motion.


author: Lacey, P. J.

text:
    Thomas Cleary v. Robert F. Cummings.

      Judgment Note — Instruction—New Trial.

    1. There is no error in refusing to give an instruction which has no basis in the evidence.
    2. A refusal to grant a new trial on the ground of newly discovered evidence is proper when the same is merely cumulative and not conclusive.
    [Opinion filed December 8, 1888.]
    In error to the Circuit Court of Iroquois County; the lion. Alfred Sample, Judge, presiding.
    Messrs. Harry Brothers, for plaintiff in error.
    Ho appearance for defendant in error.
   Lacey, P. J.

This suit was based on a promissory note which purported to have been given by appellant to appellee, dated April 13, 1880, for two sums of money mentioned in the note (for §87.50 and §9.60) with interest at eight per cent. The appellant pleaded the general issue and non est factmn, sworn to. The result of the trial was a verdict and judgment in favor of appellee for the amount of the note and interest. The note was a common judgment note. The appellant assigns for error the refusal by the court to give his instructions. 1st. That if appellee told the defendant to sign the note and read a promissory note to him, and he did so, and it turned out to be a judgment note, then the note would not be the note of appellant. 2d. If appellee read the note to appellant before signing and it was only a common promissory note as read, then, if the note were different and a judgment note, there could be no recovery. It was not improper to refuse these instructions. For anything the instructions stated, the appellant may have been perfectly aware of the kind of a note he was signing^ or might have so known. Secondly, the appellant did not, in his testimony, base his defense on such grounds.

He positively swears that he did not authorize appellee to sign the note. That he never saw or heard of such a note till judgment was rendered by confession. It was the common note used when they sold flax; appellee does not swear he did not know the contents of the note, nor could lie, for his defense was he did not sign it or any one like it. The instruction was not based on any evidence.

The appellant also assigns for error the refusal to grant a new trial on account of newly discovered evidence. We think the court did not err in so doing. The proposed evidence was in no wise conclusive and was only cumulative.

The appellant and one Van Zant testified that the note was given for a certain number of bushels of flax seed sold by appellee to appellant to sow in 1880. In his evidence on the trial appellant testified that he got no fifty bushels of flax seed of appellee but sowed his own.

The two witnesses newly discovered are only to corroborate appellant’s testimony, and their evidence is only cumulative to his own. Under the well established rules of law this would not be sufficient grounds upon which to base a new trial. We see no error in the record and therefore affirm the judgment.

Judgment affirmed.


text:
    Dennis Murto v. Charles McKnight.

      Statute of Frauds — Promise to Pay the Debt of Another — Instruction— Evidence — Practice,
    1. A parol agreement to pay the. debt of another is within the statute o£ frauds, unless the same is in the nature of an original undertaking and is based upon a valuable consideration received by the promisor.
    2 A promise by a son to pay the father’s debt to enable the latter to have his property removed from the State without interference, the relation of debtor and creditor between the original parties remaining unchanged, is within the statute of frauds.
    3. In the case presented, the defense of the statute of frauds was properly admitted under the stipulation that all material matters should be admitted under the general issue as if specially pleaded.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Mercer County; the lion. Arthur A. Smith, Judge, presiding.
    Messrs. Pepper & Scott, for appellant.
    A contract was made between Charles McKnight, the defendant, and Dennis Murto, the plaintiff, by which Murto agreed to forbear instituting proceedings against Pobert Mc-Ivni gilt’s property and to wait until the end of the year for the liionejn
    This agreement to pay a sum of money is good and binding in law, and it does not matter that it was and is the exact amount due from Hubert McKnight to appellant, nor that it had been due and owing. It is of no consequence that it is the same, or more, or less.
    Any consideration is good in law if it is appreciable. The giving of a pepper-corn a year is a sufficient consideration in law. Hence the benefits to the party promising or the prejudice to the one to whom the promise is made need not be very great; it is enough if it is perceptible. Wadsworth et al. v. Thompson, 3 Gilm. 428.

      “ The moral obligation to fulfill a promise voluntarily made is not denied; for this reason courts have been always anxious to support promises when the slightest consideration can be made to appear.” The above principles laid down in the case quoted have never been challenged or doubted.
    Any act which is beneficial to one party or a disadvantage to the other is a sufficient consideration to support a contract. Burch v. Hubbard, 48 Ill. 164; Buchanan v. International Bank, 78 Ill. 500; Cooke v. Murphy et al., 70 Ill. 96; Bishop v. Busse, 69 Ill. 403.
    An agreement not to sell property or to release securities, an agreement not to sue or to dismiss suits already begun, as well as agreements to compromise a doubtful claim, are good and binding in law. McKinly v. Watkins, 13 Ill. 140; Parker v. Enslow, 102 Ill. 272; Pool v. Docker, 92 Ill. 501; Edgerton v. Weaver, 105 Ill. 45.
    And they are just as binding if made on the part and behalf of another. Sigsworth was sued for allowing a cow in his care to be lost. His brother agreed to give and gave a note for the value of the cow if the suit should be dismissed, and it was held to be a "good consideration for the note, and it could not be impeached. Sigsworth v. Coulter, 18 Ill. 204.
    And it is not necessary that the promisor should be benefited in the least by the transaction, if the party to whom the promise is made is put in a worse condition. Hartford Fire Ins. Co., 97 Ill. 439.
    If it was a promise to pay the debt of Bobert McKnight, it ■was not within the .statute of frauds, because it was based on the new and distinct consideration that the plaintiff, Dennis Mnrto, would let Bobert McKnight go unmolested with his property from the State of Illinois, and thereby lose his opportunity to collect his debt. Brown on the Statute of Frauds, 212.
    In Leonard v. Vredenburg, 8 Johns. (N. Y.) page 29, Judge Kent divides the promises to pay debts owing by others into three classes, and says the first two are within the statute; the third is not. The third class he defines, c‘is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.”' Templeton v. Bascom, 33 Vt. 132.
    Messrs. Bassett & Bassett, for appellee.
    The plaintiff could have brought suit against Bobert McKnight at any time, on the note and account, and wrote to him about it after January 1, 1888. Charles McKnight had not received a cent in money or property to pay on the debt; he did not claim possession of, nor any lien upon, the property of Robert McKnight, and had no pecuniary interest in the property. Plaintiff did not part with any property, and defendant never from any source received anything for the promise.
    In a very late case in the Court of Appeals of Row York, the following rule is stated as the result of the latest decisions of the courts: “That where the primary debt subsists and was antecedently contracted, the promise to pay it is original, when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby cornos under an independent duty of payment, irrespective of the liability of the principal debtor.” Rintoul v. White, 26 Cent. L. Jour. 368.
    The court in that case reviewed the case of Leonard v. Vredenburg, cited by counsel for appellant, and other cases following that, and said the definition in that case “ assumed as the test of an original promise, that it was founded on a new or further consideration, of benefit or harm, moving between the promisor and promisee. There was found in this some inaccuracy of expression; for since every promise must have some consideration, to be valid at common law, and that necessary and inevitable consideration, wherever the debt to he paid antecedently existed, is always6 new5 and ‘ further3 because different from that of the primary debt, and since also such consideration does frequently move between the newly contracting parties, giving benefit to promisor or harm to promisee, it became apparent that the terms of the definition were dangerously broad and capable of a grave misapprehension, making it almost possible to say that a promise good at common law between the now parties, was good, also, in spite of the statute.”
    This broad definition was named in the case of Mallory v. Gillett, 21 N. Y. 412, which was an exhaustive ease, and recited a great number of American and English cases, commencing with the case of Leonard v. Vredenburg.
    In the case of Mallory v. Gillett, after citing a long list of cases, it is said on page 427: “They all present examples where the collateral undertaking was founded on a consideration sufficient to sustain the promise, but of no personal concern to the promisor, yet the promises were void because they fall within the precise terms and the undoubted policy of the statute of frauds.” Brown v. Webber, 38 N. Y. 187; Ackley v. Parmenter, 98 N. Y. 425; Nelson v. Boynton, 3 Met. 396; Furbush v. Goodnow, 98 Mass. 296.
    To the same effect is Birchell v. Neaster, 36 Ohio State, 331. The decisions in our own Supreme Court sustain the rule first laid down in all of its terms, and is as strict as any of the courts of other States. We cite enough to show its uniform ruling: Scott v. Thomas, 1 Scam. 58; Hight v. Wells, 17 Ill. 88; Eddy v. Roberts, 17 Ill. 505; Chilcote v. Kile, 47 Ill. 88; Wilson v. Bevins, 58 Ill. 234; Durant v. Rogers, 71 Ill. 121; Owens v. Stevens, 78 Ill. 463; Hardman v. Bradley, 85 Ill. 162; Denton v. Jackson, 106 Ill. 433; Power v. Rankin, 114 Ill. 55.
   Upton, J.

In June, 1887, Robert McKnight was indebted to Dennis Murto for about §225 on a promissory note and book account. About that time McKnight went to Wichita, Kansas, to do some work, of which Murto was apprised. McKnight had in Keithsburg, Illinois (where all the parties in interest in this suit then resided), piroperty, real and personal, sufficient to meet his indebtedness.

In August, 1887, McKnight remaining in Kansas, and Murto learning that the family and some personal effects of McKnight’s were about to be removed thereto,, saw Charles McKnight, a son of Robert, and had the following interview with him:

“I saw Charles McKnight and asked him if the folks were going to move to Wichita, and asked him liowr soon, and I think he said in a couple of weeks, possibly three. I asked him if his father was coming back, and he said that he had a good thing out there, or too good a thing to come back, and said they were going to ship) his father’s things out there. I asked him then how it would he about that note I held against his father, and he asked me how much it was, and I told him, and lie said he would see me again about it. I am not positive whether it was that day or the day following, or it may be two or three days, but it was immediately after this talk that he came into the store and asked me again about it. I told him the note was past due. He asked me what the amount was, and I told him over $200, and that there was also a small book account, and I told him I did not want to lose it. He asked me what I proposed to do about it, and 1 told him I proposed to take steps to collect it. I said to him, your father is worth property and I am going to get "out an attachment, lie went out of the store and came back in a few minutes and said: ‘ Don’t do anything about that, and I will pay it; now, don't you do anything about it.’ I said to him, yon had better take the note and give me your obligation for it, and he replied that he did not want to do that, and said: ‘Damn it, did I ever tell yon I woiild do anything that I did not do V lie said: ‘If I say I will pay it, I will pay it’ I then asked him to let me know when he would pay it, and he said, at the close of the year, when we close our accounts. That is the conversation, as nearly as I can tell it. I turned to my bookkeeper and told him that it was all right, that Charles McKnight had assumed it. I was in my office at the time, that is, at the time of this last conversation, and Charles McKnight was leaning over the rail talking about it; ” which was the material evidence offered in the case of the agreement, set out in plaintiff’s declaration.

Murto did not attach the personal goods of Eobert McKnight, and the same were about two weeks thereafter shipped to Kansas and the real estate in Keithsburg mortgaged for $1,885. What the value of this realty was, does not appear.

In December, 1887, Murto had an accounting and settlement with Charles McKnight, of his individual accounts, at which time he refused to pay the debt of his father, saying his father would pay that, and denying that he had ever agreed to pay it. Ho account or charge was made against Charles McKnight of the indebtedness from his father to Murto, on book or otherwise, and the promissory note of Eobert McKnight was held by Murto as a subsisting claim against him. There was no contract or agreement, or mem' orandum thereof in writing, between the parties concerning the indebtedness or the payment thereof.

This suit was commenced in the Circuit Court of Mercer County, February 7, 1888, against Charles McKnight by attachment. The declaration is in assumpsit and contains a special count, the common counts and general breach.

The special count alleges that on the “first October, 1887, Robert McKnight was indebted to Dennis Hurto in the sum of $250, according to the terms of a certain promissory note for §195 with interest at eight per cent, from date, and §50 on account for goods, wares and merchandise, before that time sold and delivered to said Robert McKnight at his request; and being so indebted, the said Robert McKnight was attempting to dispose of his real estate with the intention of leaving the said State and with the intention of removing his personal effects from the said State, and in consequence thereof the said plaintiff was about to sue out, procure and levy an attachment on the property of the said Robert McKnight according to the form of the statute, and the said plaintiff could then, by so doing, have made the amount of his said demand, to wit, the sum of §300, from the property of Robert McKnight; and thereupon the said defendant herein, who is a son of said Robert McKnight and who had learned of the intention of the plaintiff, came to him (plaintiff), and offered, if he would allow the said Robert McKnight to depart from the State, take his personal estate with him and sell his real estate, without plaintiff suing out and levying an attachment on any of said property, he, the said defendant, would assume and pay the said indebtedness and be personally responsible therefor; and the said plaintiff accepted said offer, whereupon the defendant assumed and agreed to pay said indebtedness, to-wit, the sum of §300; since which time the said Robert McKnight has disposed of all his real estate in the State, and has departed from the State, taking with him all his personal effects, said plaintiff having allowed him, said Robert McKnight, so to do, relying upon the promise of the said defendant.”

There is no evidence in the record that Hurto had or intended to take an attachment against the property of Bobert HcKnight either before or after the alleged promise of Charles HcKnight. Plea of the general issue, under which, by agreement, all matters material were to be heard as if specially pleaded, and under which the statute of frauds was insisted upon as a defense.

The cause was heard by a jury and after the evidence closed on the part of the plaintiff and without offering any evidence on the part of defendant on this branch of the case, the court, on motion of defendant’s counsel, excluded all the evidence offered on the part of the plaintiff’s claim against the defendant, as set out in the declaration, and instructed the jury to find a verdict for the defendant, which was done, and plaintiff excepted; and, judgment being entered, and a motion for a new trial being overruled, the cause was appealed to this court, and the errors assigned are:

1st. The exclusion of the plaintiff’s evidence from the jury.

2d. Instructing the jury to find a verdict for defendant.

3d. In refusing a new trial and rendering judgment on the verdict.

It is apparent that the court below held that the statute of frauds and perjuries, so called, applied to the case as made, and for that reason ruled out the evidence of the plaintiff and instructed the jury to find a verdict for the defendant.

If the statute and its provisions do apply, manifestly the court ruled correctly. This statute of frauds and perjuries, which is a substantial copy of the English statute, is believed to be in force in all the States of the "Union, varied somewhat in expression, perhaps, but the same in substance and effect, and has been the subject of varied and contradictory construction-

The difficulty has not arisen from a want of perfect understanding of the terms used in the statute — for they are as accurate as human wisdom can make them — but rather, it is believed, in the favor or disfavor with which the different judges have regarded this statute in its practical operation. Those who have regarded it as establishing a hard rule in particular cases, have given it a narrow and illiberal construction. Indeed in some cases it will be found it has been so construed as to have no practical meaning whatever. On the contrary, those judges who have regarded the statute as establishing a sound rule of public policy'in the transactions of life have always given it a true and just interpretation according to the exact meaning of the words used. The latter we regard as the safe and better rule. It conduces far more to a uniform administration of the law, as the Supreme Court of our State have long since determined. The general rule is that if the promise is in the nature of an original undertaking to ¡ray a debt to a third party, and is founded on a valuable consideration received by the promisor himself, it is not within the provisions of the statute and need not be in writing to make it valid and binding. It will be regarded in the light of a contract for the benefit of a third party upon which such third party may found an action for the breach. Wilson v. Bevans, 58 Ill. 232; Eddy v. Roberts, 17 Ill. 505.

If, however, another is pecuniarily liable, or is the principal debtor, and the relations of debtor and creditor remain unchanged, both as to the right and the remedy, and no trust is created by the transaction out of which the promise arises, such promise is in its natuie collateral and not original. If the debt is to be paid, or the duty performed, by him who is pecuniarily liable, the incident or collateral promise is of no foi'ce for any purpose; there is nothing remaining on which it can operate.

Tested by these rules the contract alleged in the special count of the plaintiff’s declaration is void if not in writing. The debt of Robert McKnight in fact and form existed at the time of the making of the alleged promise. Robert McKnight continued and still continues liable to the same extent as if the promise had not been made. The relations of debtor and creditor were in no manner changed. No remedy, pledge or security was relinquished, and no trust devolved upon the defendant to execute by reason of the transaction. Eddy v. Roberts, 17 Ill. 505, and cases cited.

It is claimed by appellant’s counsel that the facts in the case at bar brings it within the rule above stated for the alleged reason that by relying upon the defendant’s promise lie forebore to enforce the payment of his claim by suit until Robert McKnight’s personal effects were removed from the State.

Suppose we concede for the argument’s sake, but for no other purpose, that to be so, there is no fact in' evidence in this record that Robert McKnight has not now, or at the commencement of this suit had not, sufficient estate in the county of Mercer out of which to make plaintiff’s demand. True, that is averred in the declaration, but the record is barren of proof on that point; and even if proven, it would only go to the consideration, and could not supply the written contract or memorandum thereof, without which the consideration could not avail. But more than this, the contract, as set out in the declaration, though not supported by the proof, did not in the least prevent the plaintiff from proceeding and enforcing any remedy against the property of Robert McKnight, he had before the claimed promise was made. No remedy, pledge or security whatever was relinquished by Murto.

But it is urged that the case of Bunting v. Darbyshire, 75 Ill. 408, is decisive of this case in the plaintiff’s favor. We think that case is not even in kinship with the case at bar. The instruction given to the jury in that case, among others was, “that if they further find from the evidence that at the time of the promise or agreement to pay said plaintiff, an execution was in the hands of the sheriff to collect said judgment, that the said defendant knew of the same and at the time had property in his possession belonging to Ebenezer Bunting, (principal debtor in the execution,) subject to said execution, and that the promise was made to prevent the levy of the said execution upon s.aid property, and, in consideration thereof, the plaintiff did prevent the levy by agreeing to pay, and paying the judgment, they will find for the plaintiff.”

That instruction brought the case strictly within the rule stated in the case cited in the 17th Illinois, supra, and the cases there referred to. In the case of Bunting v. Darbyshire, supra, the promisor retained the goods of the principal debtor, subject to the execution, and which should have been applied in satisfaction thereof, to the relief of the surety, (the co-defendant in execution,) and upon that consideration authorized the surety to settle the judgment, and for the property thus received of hirh, he would repay the surety the money expended in such settlement. That was an original and in no sense a collateral undertaking, and has never been understood by the bar or the bench as modifying the rule, as stated in the 17th Illinois, supra, in the least degree. It is in fact and essence within the rule first stated above as the general rule of distinction of original from collateral' undertakings. Power v. Rankin, 114 Ill. 52, and cases cited. We have carefully examined the record in this case, and we think the court below was justified in holding that it was within the statute of frauds and perjuries, for the reason that the alleged contract was not in writing. There was, in the case at bar, no novation of the debt, and we think the stipulation in regard to special pleas was properly allowed by the court in the exercise of its directing power, and was broad enough to admit of the defense of the statute as claimed, even if the statute could not be, by the nature of a demurrer to the evidence. We find no error in this record of proceedings in the court below and the judgment is affirmed.

Jxodgment affirmed.


text:
    Joseph R. Besse v. George W. Sawyer.

      Highways — Law of the Load — Injury to Team — Conflict of Evidence— Lew Trial — ■Instructions.
    1. In an -action to recover for injury to a horse a.ncl sulky, resulting from an altercation upon the highway, this court declines to interfere with the verdict of the jury, the evidence being wholly conflicting and apparently irreconcilable.
    2. A new trial will not be granted upon the ground of newly discovered evidence -when the same is merely impeaching and not conclusive in character.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Whiteside County; the Hon. Charles J. Scofield, Judge, presiding.
    Mr. William H. Allen, for appellant.
    Mr. W. J. McCoy, for appellee.
   Upton, J.

This is an action for an alleged injury to a horse and sulky of appellant, originally brought before a justice of the peace of Whiteside county, in which, upon trial, a judgment was rendered in favor of the appellant for 840 and costs, from which Sawyer appealed to the Circuit Court of that county. On the trial in the Circuit Court the jury found a verdict for the appellee, Sawyer. A motion for a new trial being overruled, judgment was entered on the verdict. The case is in this court by appeal from that judgment.

The appellant, Besse, ivas, on the evening of the 2d day of August, 1887, driving along a public highway with a horse, in a light sulky, nearly two miles southwest of Erie, in White-side county, and overtook the appellee in a narrow place on said highway.

The appellee was driving a span of horses attached to a double wagon, in the box of which were fifty or sixty bushels of rye, loose in the box, weighing nearly 3,000 pounds. The tire on the wheels of appellee’s wagon, in consequence of the wheels becoming dry, were loose and working off, requiring frequent stoppage of his team to drive the tire on, to prevent breaking of the wheels. The highway was quite sandy at the point in question, and in consequence of the condition of the highway, the loaded wagon and the imperfect condition of its wheels, it was not practicable for appellee to drive outside of the beaten track of the highway.

It was under such circumstances that appellant overtook appellee. On the trial in the Circuit Court appellant contended that the horse he was driving was a young, spirited horse, headstrong and difficult to control; that upon coming up with appellee lie so informed him, and requested him to turn out of or upon one side of the highway, and allow him to pass by, which he refused to do, but instead told appellant to go by, if he knew enough; called appellant improper names, and treated him with contempt; that appellant being unable to hold back his horse any longer, upon getting near the rear of appellee’s wagon appellee struck the horse over the head with his whip, which frightened it, rendering it more difficult to manage, and that, seeing the effect of the first blow, he immediately struck the horse again, which caused it to rear up, turn out of the highway and jump into a deep ditch, three feet or more deep, overturning the sulky, throwing the horse and pitching appellant-with great violence upon the ground, thereby breaking the sulky, damaging the horse and injuring appellant.

It was contended on the part of appellee that when overtaken by appellant, and upon his request to him to turn out of the highway so that appellant might pass, he informed him of the load upon his wagon, the condition of the wheels, the fact that it would be difficult, if not impossible, for him to get back into the track of the highway without breaking down, and informing appellant that a few rods further on the highway was broad enough for'him to pass without danger to either appellant or himself, asking him to await the arrival at the point designated, which would be but a few minutes; that while speaking the tire came partly off the wheel of his wagon and he was compelled to stop and drive it on; that he apologized for the delay to appellant; that the appellant got into a violent passion, threatened to run the thill of his sulky through the end board of the wagon box and empty the rye, with which the wagon was loaded, upon the ground, drove his horse up to the end of the wagon and allowed it to eat of the rye in the wagon; that upon being requested to keep his horse from damaging and wasting the rye appellant swore his horse should eat all he wanted of it; that appellee told appellant, if lie did not keep liis horse out of his wagon he should strike the horse with his whip; that appellant, with curses and threats, drove his horse again up to the wagon, and suffered it to eat therefrom, upon which appellee struck the horse upon the head with a whip, the handle of which was of hazel brush, and the lash a string cut from a boot leg; that immediately the appellant, in a great passion, drove his horse along the near side of the appellee’s wagon, and standing up in his sulky, with his lines in his left hand and his whip in his right hand, struck appellee (who was sitting upon the seat of his wagon) a vigorous blow upon his head and shoulders; that the sound of the blow seemed to frighten appellant’s horse, and it jumped into the ditch and overturned the sulky and occasioned the damages complained of, which were claimed to have been quite small at most.

Upon this contention quite considerable testimony was heard on both sides, which was wholly conflicting and apparently irreconcilable.

The jury, after hearing all the evidence, found a verdict for the appellee (defendant below), and appellant having brought the case to this court to reverse the judgment upon that verdict, assigns for error in the trial court the admission of improper and the rejection of proper evidence on the trial, the giving of improper and the refusal of proper instructions to the jury, the giving of its own motion by the court improper instructions, overruling appellee’s motion for a new trial and the rendition of judgment against appellant.

In regard to the alleged errors of the refusal of proper evidence and the admission of improper evidence by the trial court, it is sufficient to say that no evidence of the character complained of has been pointed out in the argument, and none is apparent to us on the record materially affecting the issues in the case.

It is claimed, however, that the court erred in refusing to give the third instruction asked for by the appellant; that the court also erred in the instruction given on its own motion, and also that the court erred in giving to the jury the instructions asked for by the defendant. We have carefully examined the instructions in this record, and we fail to find any substantial error therein; taken as a series we do not think them misleading, and while, perhaps, the law of the case was not so fully set forth or clearly stated as might have been done, it is in our judgment manifest that, upon that branch of the case, no injustice has.been done either party, and we do not feel called upon to interfere.

Of the error assigned in not setting aside the verdict and granting a new trial, it is sufficient to say that, from the evidence and the facts to which we have referred, no error in that regard was committed by the trial court. Here was a sharp conflict of evidence, which was the peculiar province of-the jury to reconcile, if possible, and from which to determine the facts in their own minds as to the right of this contention and the consequent merits'of this controversy. And even though the trial court or this court might have been better satisfied with a different verdict, still, neither that court nor this would be authorized to interfere, if the evidence heard on the part of the appellee, standing alone, would justify the verdict.

If the jury were justified from the evidence in rendering the verdict, as we think they were, it follows that appellant is not entitled to any damages in this case, and hence, whether he suffered damages to his person, became a wholly immaterial question, and the instruction in that regard could not have been material to the issue of this case.

But it is said the court below erred in not granting a new trial for newly discovered evidence. The motion for a new trial, based upon the affidavits presented in this record, we think was properly denied. When examined in connection with the evidence in this record, such newly discovered testimony would only have been impeaching and in no manner conclusive in its character, it is apparent. The rule is too well settled to require authoritative citations, that a new trial will not be granted when the newdy discovered evidence is of that character. We have carefully examined the record in this case and fail to find therein any material error to justify our interference with the judgment of the court.below, and that judgment is affirmed.

Judgment affirmed.


text:
    Harmena F. Wessels v. Jelderk Wessels.

      Di coree — Custody of Children — Alimony—Cruelly—Condonation.
    1. A violent temper in a wife and the habitual use by her of opprobrious epithets toward her husband, will not justify personal violence on his part.
    2. Condonation is forgiveness for the past upon condition that the wrongs shall not be repeated; it is dependent upon future good conduct, and must be free and voluntary.
    3. In the case presented, the proof supports the allegations of the bill and the court erred in not granting a divorce to the complainant.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Stephenson County; the Hon. William Shown, Judge, presiding.
    Messrs. H. C. Buechabd and P. J. G-eib, for appellant.
    Mr. Henby C. Hyde, for appellee.
   C. B. Smith, J.

This was a bill filed by Ilarmena F. Wessels, appellant, against her husband, Jelderk Wessels, appellee, asking for a divorce on the ground of extreme and repeated cruelty, and also asking for alimony and the custody of her infant, children.

The answer denies some of the specific acts of cruelty and admits others, and alleges great provocation as an excuse therefor.

He charges his wife with having been an habitual drunkard before and ever since they were married, but says he did not know she was addicted to the use of liquor before they were married, and charges that she has an ungovernable and violent temper, and that in her fits of passion and anger she rails at him and calls him vile names and accuses him of vile practices, and that occasionally, smarting under these accusations, he has used some violence, but alleges that he immediately repented and sometimes asked his wife’s pardon, which was given.

The case was heard on bill, answer and replication and the proofs taken at the January term, 1888, and a decree was entered dismissing complainant’s bill. From that decree appellant has taken an appeal and brings the record here for review.

The parties were married in 1878; they lived and were raised together in the same neighborhood and evidently were well acquainted with each other long before they were married. "Whatever of love or affection or even of respect may have existed between them before and at their marriage, it is very evident that all traces of any such feelings soon .vanished after their marriage, never to return. Their mutual vows at the marriage altar have been utterly forgotten and ignored. In their home there has been no mutual sympathy, no love, nor even a decent respect for the rights of each other; the turbulence and violence which began soon after their marriage, has grown until it is impossible for them to live longer together. They were both of German parentage; he of low Dutch, she of high Dutch.

The proof discloses numerous acts of personal violence inflicted by the defendant upon his wife, of greater or less severity. The first account of their trouble occurred within three months after their marriage. The defendant then first grossly insulted his wife, and then, because she resented it, he violently threw or pushed her out of, doors. She had been ironing him a white shirt and had not succeeded in ironin» it as nicely as he desired, and he upbraided her in an angry and insulting manner, and said he did not know he had married a wife that did not know’ how to iron a white shirt, and thereupon ho threw the shirt in a rag-bag.

Again, in 1880, a controversy grew up in the home about the relation of defendant’s sister and his hired man, and complainant made an insinuation touching the propriety of his sister’s conduct toward the hired man, when defendant became enraged, and slapped his wife in the face, and then chased her in the room and struck her in the face with his fist.

Again in December of the same year they had a quarrel, and defendant told his wife to keep still, which she declined to do, and he then put both hands around her nock and choked her.

In 1871 they got into a controversy about chopping up some beef out in the yard; defendant wanted to go to Freeport and his wife wanted him to stay and chop the beef. He ordered her into the house and threatened her with the axe, and she failing to go, he chased her into the house with the upraised axe. She called the school teacher to defend her, and thereupon he desisted from further pursuit.

In 18S2, in December, he hitched up his team to go to mill and his wife desired to go with him as far as her sister’s. She got on the load and said she would go. He said she should not, but assigned no reason why she could not ride with him; she became angry at his refusal to allow so reasonable a request and got down off the load and pulled out the whiffletree pins, and threw them away in the snow. Thereupon defendant seized his wife by the hair of the head and pulled her down on the ground and dragged her two rods through the snow, and then whipped her with a rawhide horse-whip around her body a half dozen times, as the witness who saw it said, “like I do around the horses,” until “she hollared, John, help me.” She then ran away and he ran after her. She says, “He struck me just like an old horse — it left red stripes across my hack.”

In 18S4 another row came up about some painting he did on the house, which her father was to pay for; in an angry mood he was scratching the door with his feet, arid his wife objected; he then said if “ the old devil,” meaning his wife’s mother, did not give him some money for the painting he would cut the door, and did cut it. The wife became angered and called him a “self-abuser,” whereupon he struck her over the head with a piece of pine board, nearly felling her to the floor, cutting her through the scalp and making a bleeding wound.

Again on a subsequent occasion, about two months before her child was born, in the winter time, on the occasion of some one of their many quarrels, he pushed his wife out of doors and locked the doors against her.

In addition to these acts of personal violence, he, on many occasions, accused her of a want of chastity, charged her with being an “ old whore” and charged her with doing “something mean” with a little jew peddler and with a doctor. Told her one of her children was the child of Henry Greenwold. and charged her with going to see Henry Greenwold every time she went to town, and with “ doing something mean” with him. On the occasion of the birth of two of her children he intimates that they are not his children and says he will not get her a doctor. On one occasion when they had been butchering, he became angry at some of her abusive language and went and got anew dress pattern she had bought of the jew peddler and put it in a tub of pigs’ entrails. The foregoing recitals of his conduct toward his wife, running through the entire period of their married life, shows a systematic course of brutality and cruelty, both of act and word, rarely equaled, and yet we have recited but small part of it. The defendant seeks not to avoid the force and effect of this personal violence by denial of its truth (for the most of it he admits and other parts of it he says he can not remember), but rather by justifying himself and by condonation. How does he do it?

The answer charges the complainant with drunkenness in the first place. The evidence shows that the complainant occasionally drank intoxicating liquors, and that on several occasions she was sensibly under their influence; but we do not think the evidence establishes the fact that she was a drunkard or in the habit of getting intoxicated within the legal meaning of that word. She admits drinking whisky, hut says it was at the time of her confinement, when she needed it, and at times of holiday and festival occasions with her family and her people, when most German people followed the custom, and that it was with .the knowledge and consent of her husband. The defendant himself swears that he kept liquor in the house, and that he also drank wine, beer and whisky.

The most serious charge made in answer and supported by the proof was her violent temper, and vulgar and abusive language toward the defendant. The proof abundantly supports this charge against the appellant and shows her to have been utterly wanting in womanly qualities of refinement and modesty. The language she used toward her husband in the presence of the family, and of strangers, was too coarse and vulgar for repetition .here; hut everything we have said in relation to her manners and language as applied to her husband will apply to the fullest extent to bis language and manners toward her. Both of them seem to have been utterly shameless and regardless of all the amenities and decencies of life in their intercourse with each other. To recite these long lists of quarrels and show their origin and ending would serve no useful purpose and we shall not attempt it further than to say that the defendant was the first aggressor in the controversy over the shirt, and if, before then, there had been any bonds of affection between them, he broke the slender tie by wantonly wounding the feelings.of his young wife, and then following it up with personal violence from that time to the end.

But even if the defendant himself had not been as guilty as his wife in provoking quarrels, and in the use of coarse and vulgar language to her, and had himself been free from fault in that respect, we must still hold that her violent temper and opprobrious epithets, however insulting and scandalous they may have been, gave him no license to correct her by personal and physical violence. 1 Bishop, Mar. and Div., Sec. 765, note 2; Dillon v. Dillon, 32 La. Ann. 643; Gordon v. Gordon, 48 Pa. St. 226; Marsh v. Marsh, 64 Iowa, 667; Boeck v. Boeck. 16 Neb. 196; Eidenmiller v. Eidenmiller, 37 Cal. 364; Hawkins v. Hawkins, 65 Md. 104.

It has uniformly been held in this State that no language, however opprobrious or insulting, will ever justify, even strangers, boating each other, and certainly the rule ought not to be relaxed as between husband and wife. To allow the husband to beat his wife into submission, or to correct her delinquencies, would be a return to the barbarisms of the old common law and make the wife the mere vassal or slave of the husband.

Lastly the defendant pleads condonation. At the time of the birth of the last child, complainant swears that when she was suffering intense pain and was very sick, scarcely knowing what she did or said, her husband asked her to forgive him all the wrongs he had done her, and they would afterward live as they ought to, and that then she told him she would forgive him. She swears that it was just before the birth of their last child, and when she was suffering the pains of childbirth, and when he thought she was going to die, he asked her to forgive him, and that she did so. If, under the circumstances upon which this forgiveness was obtained, it could, be regarded as the free and voluntary act of the complainant, and be a condonation of the many wrongs done complainant, then the law imposed upon him the duty of treating his wife thereafter with conjugal kindness and affection. Condonation is forgiveness for the past upon the condition that the wrongs shall not be repeated, and is dependent upon future good conduct, and it must be free and voluntary. Sharp v. Sharp, 116 Ill. 509; Farnham v. Farnham, 73 Ill. 497.

The proof shows that immediately after this forgiveness he again commenced to treat her, if not with actual cruelty, yet with cold indifference and neglect, using many hard and cruel expressions to her in her sickness, when he spoke at all. She swears that he hardly spoke to her for two months, and on one occasion, at least, kicked her from his bed — when she went to plead with him to be kind to her, at least for the sake of the children. She swears he was cold and indifferent to her, and that he told her “he was cold to her as a stone,” and he himself admits that he made use of this expression, and makes no claim on the witness stand that he treated her with kindness and affection after she had forgiven him. The proof also shows that since that time she has patiently forborne to renew her former offenses, and has kept her promise to treat him kindly.

We think that whatever of condonation there may have been between the parties, it was soon forfeited by the defendant’s subsequent bad conduct toward his wife, and he thereby renewed his former acts of cruelty. We think the proof supports the allegations of the bill, and that the court erred in dismissing the bill.

The cause will be remanded with directions to the court to sot aside the order dismissing the bill and to grant the divorce at the costs of the defendant, and to make such order con-corning the alimony and allowances and the custody of the children as the court shall deem right and just.

lieversed and remanded.