author: Gary, <7.

text:
    Chicago & Northwestern Railway Company v. Fred Bouck.

      Railroads—Personal Injury—Crossing—Ordinary Care—Obligation to Look and Listen—¡Special Finding—Evidence—Instructions.

    1. In an action for damages for a personal injury, the ultimate facts of care or negligence are questions for the jury, and they should not be instructed by the court as to what acts constitute either.
    2. Ho repetition by courts of review, that certain evidence does or does not sustain the verdict finding care or negligence in the particular case, make the conclusions of fact arrived at by such courts and the language in which they express such conclusions, doctrines of law for other cases.
    8. A special verdict is a special finding of facts inconsistent with the general verdict that is to control it, and no question the answer to which can not have that effect can be material.
    4. This court condemns the practice of requiring juries to find specially upon an unreasonable number of interrogatories.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba H. Waterman, Judge, presiding.
    Messrs. W. C. Goudy and W. B. Keep, for appellant.
    Messrs. Cameron & Hughes, for appellee.
    Counsel complain that the court, from twenty-eight questions proposed by appellant and a number submitted by us, (which they saw before the argument), should have selected nine for the consideration of the jury. Taking those asked by defendant below, Hos. 1, 10, 20, 21,14 and lo, as they are arranged in this record, were given in Hos. 7, 2, 5, 6, 8 and 9, as sent to the jury. Ho. 9 as asked by the defendant was in substance identical, in form deficient, as compared with Ho. 1 submitted to the jury as prepared by us. Hos. 3 and 4 as given to the jury were presented by us to the defendant’s counsel before argument, and were submitted by the court to be passed on by the jury. So that appellant submitted twentj'eight questions to the court and the court required the jury to pass on seven of theirs, and gave two not asked by them. They were all that were material or pertinent to the controlling facts of the case.
    We are not aware of any decision by our Supreme Court as to the number of special findings that may be required from a jury, but there must be a limit. The true rules to be applied to the number of these special questions would seem to be analogous to the rules laid down as to instructions. They are simple, plain and easy of comprehension.
    It is proper to refuse an instruction essentially embraced in others already given. T. W. & W. R. R. Co. v. Maine, 67 Ill. 298.
    Instructions which single out a few of many circumstances of a case, and call special attention of the jury to their consideration are objectionable. Hewett v. Johnson, 72 Ill. 513; Chittenden v. Evans, 41 Ill. 251; Protection Life Ins. Co. v. Dill, 91 Ill. 174.
    So of a fact which has no direct bearing on the real facts of the case. Drohn v. Brewer, 77 Ill. 280; Hatch v. Marsh, 71 Ill. 379.
    They should, in a clear, concise and comprehensive manner, inform the jury as to what facts must be found to recover or bar a recovery. Moshier v. Kitchell, 87 Ill. 18.
    Instructions, prolix, numerous, voluminous and containing an argument are improper. R. Ins. Co. v. Nelson, 75 Ill. 548; S. Cemetery Ass’n v. Smith, 24 Ill. 480.
    Where the series of instructions given fairly cover the law of the case, a refusal to give a correct instruction, which could not have changed the result, will not reverse. Cusick v. Campbell, 68 Ill. 508.
    Considering these rules and the statute as to such findings, the court here will see that the court below gave every one that applied to a material fact under issues as made by the pleadings.
    It can not be that a jury, by their special findings, must settle every controverted fact. It is only material facts that should be so settled. A fact may be controverted, and yet be immaterial in arriving at a just verdict.
    In answer to the criticism on our instructions as given, we refer the court to Garland v. C. & N. W. Ry. Co., 8 Ill. App. 571; C. & W. D. Ry. Co. v. Klauber, 9 Ill. App. 613; Wabash Ry. Co. v. Honks, 91 Ill. 496; I. C. R. R. Co. v. Benton, 69 Ill. 174.
   Gary, <7.

This was an action to recover damages for personal injuries suffered by the appellee at a railroad crossing of a street in Chicago as stated in the brief of appellants. “ The questions in this case arise upon the decisions of the court in refusing to require the special findings as requested by the defendant, in submitting certain questions to the jury, and in giving and refusing the instructions.”

The questions actually submitted by the court to the jury are conceded to have been proper except this: “Was the plaintiff using ordinary care at the time of the injury complained of ? ” which, it is said in the brief, is more a question of law than of fact, and it is but a conclusion based upon other necessary facts to be proven in the case. But it is the settled law of this State that the ultimate facts of care or negligence are to be found by a jury, and the court is not to tell the jury what acts constitute either. Penn. Co. v. Frana, 112 Ill. 398 ; Chi. & A. R. R. v. Pennell, 94 Ill. 448; Schmidt v. Chi. & N. W. Ry., 83 Ill. 405.

And no repetition by courts of review, that certain evidence does or does not, sustain the verdict finding care or negligence in the particular case, make the conclusions of fact arrived at by such courts and the language in which they express such conclusions, doctrines of law for other cases. Fairbury v. Rogers, 98 Ill. 554. Or even for a second trial of the same case. Chicago & N. W. Ry. v. Moran da, 108 Ill. 576. It is also objected that it is not made a part of the question whether the ordinary care was for the personal safety of. the appellee; not that this omission makes the question erroneous, but useless. The appellants asked the court to submit to the jury twenty-eight questions. To do justice to their argument it is quoted as follows:

“ A statute enacted by the legislature of 1887 provides that a jury, in any case in which they render a general verdict, may be required by the court, and must be required on the request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact shall be submitted by the parties requesting the same to the adverse party before the commencement of the argument to the jury. The statute provides that submitting or refusing to submit to the jury, when requested by a party as provided by the preceding section, may be excepted to and be reviewed on appeal by writ of error as a ruling on a question of law. The statute further provides that when the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly. Laws of 1887, 185.
“The rule requiring a special verdict upon particular questions of fact exists in several other States. Its object is manifest. When a jury are permitted to render a general verdict without giving any reasons, the largest latitude is afforded for unjust verdicts. These provisions are intended as a restraint upon the passions and prejudices of the jury. It is therefore made the duty of the court, on the request of a party, to find specially upon any material question of fact, so as to restrain a jury from the dangers of influences which ought not to enter into their consideration. In order to give full effect to this statute, every question of fact material for reaching a conclusion as to a verdict for or against the plaintiff ought to be submitted to the jury. The more minute these questions, the greater protection there is to the rights of the parties.
The only justification for a refusal of the court to submit any question proposed by a party as to any fact, is that such fact would be immaterial for the consideration of the jury. In such a case the evidence ought to be excluded. If the evidence is allowed to go to the jury at all, then the court ought to require an answer specific as to the fact, when requested in writing by the party. In the case at bar, where there was such conflicting evidence, and probably where some of the witnesses were knowingly swearing to falsehoods, there was a peculiar propriety in presenting minute and numerous questions to the jury.”

If the purpose of the statute be to catechise the jury, and require them to state the process of reasoning by which they have reached a verdict, it is a revolution. The whole ancient theory of trial by jury is gone.' A jury is the only deliberative body 'that can reach a decision only by being unanimous. Supreme Courts decide by a majority, and judges who concur in the result, often differ as to the reasons. The Supreme Court of Wisconsin said ten years ago in Ward v. Busack, 46 Wis. 407, where, under a similar statute, only nineteen questions were put to the jury, “ the presiding judge has the right in all cases to control the form of the special verdict, and no refusal on his part to submit a particular question for their answer would be a ground of error, unless the submission of such question is absolutely a necessary part of the special verdict so that the want of an answer to it would leave the verdict so imperfect that no judgment could be rendered thereon.” They cite their statute, to which I have not access, and proceed: “From our knowledge of the nature of the special verdicts which have come under the consideration of this court, we believe we are justified in saying that the tendency of some of the profession, in making use of the law which requires that a special verdict shall be rendered whenever demanded, to abuse it by demanding that the jury shall answer an infinite series of questions, the object and tendency of which is to confuse, embarrass and confound the jury, instead of eliciting the facts upon which the right of the parties depend, needs the restraining hand of the judges presiding at the circuits, and that this court will take pleasure in sustaining such judges in every proper effort to make a special verdict a concise statement of the real facts at issue in the case.” If this was their view in a case where nineteen questions were asked, wliat would they have said in such a case as the A. T. & S. F. R. R. Co. v. Cone, 37 Kansas, 567, cited by these appellants as authority in the Dunleavy case, last term, where one hundred and thirty-six were asked ?

The learned judge of the District Court there told the jury, “ The jury are not required to answer any special question, unless they can make such answer upon the testimony they have heard; if any question is submitted, and no sufficient evidence appears upon which to answer, the jury can say ‘ don’t know ’ or 1 can not answer on the evidence.’ It would aggravate the tendency of this opinion to extend itself, to quote the questions in relation to which the Supreme Court of Kansas said, of course, the court committed error in instructing the jury that they might answer the special questions by simply saying ‘don’t know’ or ‘can not answer,’ but if they had been truly and completely answered, the answers would almost have furnished specifications for building, and rules for running a train.” Such an administration of the law is, unless the subject is too serious for the term, a farce.

A special verdict is, like pleading, a statement of facts, and not of the evidence, however cogent, of the facts. Starkie on Ev. 766. And the statute under consideration accords with this ancient doctrine. It is a special finding of facts, inconsistent with the general verdict, that is to control it, and no question, the answer to which can not have that effect, can be material. Ward v. Busack, 46 Wis. 407; 2 Thompson on Trials, Sec. 2681. The instructions fairly told the jury that to entitle the plaintiff to recover he must have been in the exercise of ordinary care, and if there could have been any lack of certainty as to what that care should relate to, at the instance of the appellants the court told the jury that before the appellee could recover he must show by affirmative evidence that he was, at the time he received the injury complained of, exercising ordinary care and prudence for his own safety; that it was his duty to look and listen before going upon the track; and in other particulars went farther than the law does in favor of the appellants, but refused to go the length they asked. There is no error in the record, and the judgment should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    The Chicago, Rock Island & Pacific Railway Company v. William Clough.

      Railroads—Personal Injury—Crossing—Special Interrogatories—Reto Trial—Evidence—Instructions—Pleading.

    1. No direct statement that a railroad flagman knew of a fact which it was his duty to know, and by which fact his conduct, as he narrates it, was prompted, is necessary to justify a finding that he did know it.
    2. Evidence which is merely cumulative but not conclusive, will not justify a new trial upon the ground of newly discovered evidence.
    3. In an action against a railroad company to recover damages for injuries received at a street crossing, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Thomas F. Withrow and James C. Hutchins, for appellant.
    Mr. Joseph S. Kennard, Jr., for appellee.
   Gary, J.

This was an action by the appellee for injuries sustained at a railroad crossing of a street.

A great mass of conflicting testimony was given upon the trial, and the verdict of the jury settles the facts both as to right to and the amount of the verdict. The first instruction on behalf of appellee is like the first one sanctioned by the Supreme Court in Chicago & E. I. R. R. v. Holland, 122 Ill. 461.

The special objection now made to this instruction is that the second count added to the original declaration is not proved, and therefore an instruction referring to the whole declaration is wrong. The count alleges that the flagman of the appellants beckoned to the appellee to cross over when the flagman knew a train was coming.' The appellee testified that the flagman did beckon him to cross over. Whether that was true or not the jury were to say. That the flagman knew the train was coming may well be presumed, as he was on the ground; it was part of his duty to watch for trains; and he testifies that he tried to keep the appellee out of the way of it. Ho direct statement that he knew the fact which it was his duty to know, and by which fact his conduct, as he narrates it, was prompted, was necessary to justify the finding that he did know it.

The appellants presented nineteen questions to be put to the jury, twelve of which were given to them to answer. The others were rejected, but the answer to no one of them, if such answer had been as the appellants wished it to be, would have determined that the appellee was not entitled to a verdict, and could not, therefore, have controlled it. In C. & N. W. Ry. v. Bouck, this term, this subject is sufficiently discussed. It is impossible, within any reasonable compass, to follow the counsel of appellants through many pages of brief, replying to arguments that negligence is a question of law; that the jury should have been told that the appellee must stop and listen before going upon the track, and that crossing the track at all on that street was a bar to his recovery. Penn. Co. v. Frana, 112 Ill. 398.

The jury was instructed at great length, at the instance of the appellants, and in many particulars more favorably to them than the law warrants. The supposed newly discovered evidence is merely cumulative upon points contested at the trial, and not conclusive. Krug v. Ward, 77 Ill. 603, and cases there cited, are bufe a part of the authorities in this State to the effect that such evidence is not a ground for a new trial. There is no error in the record and the judgment is affirmed.

Tudgment affirmed.


author: Garnett, P. J.

text:
    Henry Memory v. Hermann Niepert.

      Sales — Failure to Deliver — Agency — Limitations—Damages^—New Trial—Contract in Writing.

    1. An alleged erroneous allowance of interest in the computation of damages in a given case, will not be considered by this court, where the motion for new trial contains no suggestion thereof.
    2. In an action for the recovery of damages alleged to have been suffered through failure to deliver a quantity of bacon according to the terms of a certain writing, this court holds that the same amounted to a contract; that the action was brought in apt time, and was properly brought; that the defendant’s authorization to the plaintiff to purchase the quantity named of similar merchandise and charge him with the loss, did not in any way vary the terms of the contract, and that the adoption by the trial court of the Bremen instead of the Chicago market values by which to ascertain the damages was proper in view of the acting by the plaintiff upon the written authorization of the defendant to so adjust matters.
    [Opinion filed May 8, 1889.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for plaintiff in error.
    Messrs. Smith & Pence, for defendant in error.
   Garnett, P. J.

Appellee sued appellant in assumpsit to recover damages for the failure of the latter to deliver 250 boxes of bacon in fulfilment of the following contract:

“ Bremen, September 20, 1879.
Messrs. Schmidt & Fuhrken,
Bremen:
“ Mr. Henry Memory, in Chicago, has sold to you to-day, through my care, 250 boxes of American bacon, long clear middles, at M., 25 per 110 lbs., Engl., cost and freight Bremen, against draft at 60 days sight on your good selves or against bankers’ reimbursement, in which case one-half per cent, allowance to be returned to you. Drafts to be accepted against the delivery of documents. December or January, 1880, shipment from the west by rail to New York or Baltimore, hence hy direct steamer to Bremen.
“ Yours respectfully,
“ Feed. Eggena.”

The trial was before the court without a jury, and the issues were found in favor of appellee, who had judgment for $4,919.96.

At the date of the transaction in question, and for some time previous, appellee was engaged in business in Bremen, under the name of Schmidt & Fuhrken, and appellant was a merchant, having a house in Chicago. The latter was represented in Bremen by his agent or broker, Fred. Eggena, who had authority to take the contract in question. Interpreted in the light of the evidence in the case, the contract was for the sale of the bacon at 25 marks for 110 English pounds, less charges and freight to Bremen, a draft therefor to be drawn on purchaser at 60 days sight, and in case he secured a banker’s guaranty thereof, he was to have returned to him by appellant one-half of one per cent on the amount The shipment was to be made in December of that year or January following.

The principal defense made was that the action was barred by the statute of limitations, more than five years having elapsed between the time when delivery should have been made and the bringing of the action. The argument is that the instrument which constitutes the basis of the action is not a contract in writing, as it shows upon its face no agreement by appellee, and no executed consideration for appellant's undertaking. We admit there has been great difficulty in reconciling the authorities on this question, but it is now set at rest in this State, contrary to the appellant’s contention. Plumb v. Campbell, 18 N. E. Rep. 790; Ames v. Moir, March term of this court, 1888. In the case last named the goods covered by the written contract were delivered after the execution of the instrument, but that makes no material difference as to the character of the contract. Nothing is thereby added to the writing; no more of the contract is in writing after the delivery than before.

Another reason urged by appellant for the reversal is that by the terms of the writing an option was given to appellee to accept the draft himself, or to procure a banker’s guaranty; it is said that until appellant was notified of the exercise of the option he could not ship, and as he was never so notified the fault is with appellee. We think the construction more in keeping with business usages and the terms of the writing is that the option was to be exercised when the draft was presented for acceptance. If not, why was the one-half per cent to be returned to appellee ? The simple plan would have been to deduct the half per cent from the draft if the option was first to be exercised and notice thereof given.

Appellant wrote appellee December 4,1879, that he would be unable to ship the goods unless there should be a decline in prices, and authorized appellee to buy the bacon in Bremen after the time for filling the contract expired and debit him with the loss. When the time had elapsed appellee bought the bacon and charged appellant with the loss, sending him at the same time a statement of the amount. To that statement Memory never objected. It is now contended that this was a new contract between the parties by which the written agreement signed by Eggena was satisfied and any recovery must be for money paid out for appellant’s account.

We are inclined to think that was not the intention of the parties but that it was, in substance, merely a method of adjusting the amount of the damages, leaving the original contract in full force.

Objection is made that the court adopted the Bremen market values instead of Chicago values, when the property should have been delivered, by which to ascertain the damages. But if in fact the court.followed the adjustment which appellant authorized by his letters of December 4, 1879, and which appellee accepted and acted upon, that was sufficient warrant for the action of the court whatever may be the construction of the original writing as to the place of delivery.

In the computation of damages it is said the court erroneously included interest, but in the motion for new trial there was no suggestion of excessive damages, and it is now too late to complain on that score. Oberman Brewing Co. v. Ohlerking, opinion filed in this court April 17, 1889.

We think there is no error in the record and the judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in this case.


author: Moran, J.

text:
    Henry C. Parmly et al. v. Benjamin F. Head.

      Agency—Sales — Real Property— Commission — Defective Title—Evidence—Instructions.

    1. A real estate broker who procures a purchaser, able, willing and ready to complete a sale on the terms stipulated between him and the seller, is entitled to his commission if the sale fails through the default of the seller, or his inability to make a good title.
    2. Where the commission is to be paid if the sale goes through, the same can not be recovered, where a person procured by the broker verbally agrees to make the purchase, and afterward for no legal reason refuses to do so.
    3. An instruction should be given, when the evidence justifies the argument to the jury that the facts supposed therein are true, and upon the assumption made the law is correctly stated, and the proposition in question is contained in no instruction given.
    4. A purchaser of real estate is entitled to a merchantable title.
    5. Whether or not a title is defective, is a question of law for the court.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Wallace Heckman, for appellants.
    Mr. George W. Plummer, for appellee.
   Moran, J.

This action was brought to recover from appellants $1,000 commissions which appellee claimed was due to him for services about the sale of certain land. Appellee was not retained by appellants to find a purchaser for the land, but, knowing that they would sell it, he communicated with parties who he knew would like to buy such land, and after some correspondence about the price and talks with appellants, the latter offered to sell for $73,000. Appellee relates what occurred with reference to commissions as follows :

“We had a meeting in Mr. Parmly’s office, Mr. Parmly, Mr. Parrar and myself, and at that meeting the question of commissions came up in regard to the sale. I said, gentlemen, you know what the usual commission is on such a sale here, two and one-half per cent. Well, they said it is quite a large deal, and we are making some concessions, and you must take less than that for your commissions. I said, gentlemen, if you make the sale promptly and quickly I will agree to take $1,000. Then they said that if the sale went through at $73,000, they would give me $1,000; if I got these parties up and got them $73,000, that I was to have $1,000.”

Appellee thereupon telegraphed the proposed purchasers, and they met appellants at their office and a verbal agreement was made that said purchasers would take the property at $73,000. The abstract was given to the parties to be examined, and after some time appellee stated to appellants that the purchasers’ attorneys would not pass the title ; that there were defects in it that could be cured by filing a bill under the burnt record act; but appellants claimed that the title was good, that they had bought it so, and they did not propose to make any correction in it, and they would not file such a bill, and consequently the sale did not go through.

At the trial, appellee put in the testimony of attorneys to prove that the title was defective, and appellants introduced the evidence of other attorneys to sustain their contention that the title was not defective.

The court gave to the jury, at the request of appellee, the following instruction:

“Second. The jury are further instructed that if they believe from the evidence that an agreement was made between the plaintiff and the defendants whereby the defendants agreed to pay to the plaintiff the sum of $1,000 for procuring and furnishing a purchaser for the land in question, and if the jury further believe from the evidence that, pursuant to said agreement, the plaintiff did procure and furnish a purchaser, who was accepted by the defendants, and with whom the defendants made an agreement for the sale of said land upon the terms given by the defendants to the plaintiff, then the jury are instructed that the plaintiff has earned and is entitled to the commission or compensation agreed upon to be paid to him, if from the evidence they find any such agreement was made.”

The giving of said instruction was manifest error. There is no evidence in the record to sustain the first hypothesis contained in it. Appellee did not pretend in his testimony that he had been engaged to procure a purchaser for the land, but expressly testified that the agreement was that if the sale went through, and he got the parties then in negotiation to give $73,000 for the land, he was to have $1,000.

The remainder of the instruction is also faulty and does not state the law correctly, as applicable to this case: It was not enough to entitle him to recover under the facts of this case, that the broker should procure a purchaser who was accepted by defendants, and with whom they made a verbal agreement for the sale of the land. His purchaser must not only be accepted and agree to purchase, but he must also carry out the agreement unless prevented by the fault of appellants. The rule is, that if the broker procures a purchaser able and willing and ready to complete the purchase on the terms stipulated between the broker and the seller, the broker shall have his compensation notwithstanding the sale is not consummated, if it fails through the default of the seller, or his inability to make a good title. But where the compensation is to be paid if the sale goes through, the broker does not entitle himself to claim it, if he brings a purchaser who says he will buy, and verbally agrees to do so, but who, for

no legal reason, refuses to complete the transaction. Hamlin v. Schultz, 34 Minn. 534, and cases there cited. The court refused to give the jury the following instruction in behalf of defendants:

“Eighth. The jury are instructed that even though they may believe, from the evidence in the case, that Messrs. Parrnly Brothers and Farrar agreed to pay the plaintiff §1,000 for selling the property referred to in this case for §73,000, and that Dr. Shepard was procured by the plaintiff, and did atone time express a willingness to buy said property at said price, still, if the jury further believe from the evidence in the case ■ that said Shepard.did not buy said property at said price, but afterward refused to do so, and that the real cause of such refusal was not any defect or supposed defect in the title to said property, but was in reality the fact that said Shepard found an opportunity to buy other lots adjoining said property which he preferred to said property, then the defendants are not responsible in law for the failure of said Shepard to buy said Parrnly and Farrar property, and the jury should find for the defendants.”

The refusal was error. There was evidence on which appellants were entitled to argue to the jury that the facts supposed in the instruction were true, and upon the assumption made the law was correctly stated, and the proposition is contained in no instruction given. Reidle v. Mulhausen, 20 Ill. App. 68; Stearns v. Reidy, 18 Ill. App. 582.

Appellants assign for error the refusal to give their instruction Ho. 7. We think it was properly refused. It tells the jury in substance that the purchaser would not be justified in refusing to complete the purchase on objections to the title if they “ believe from the evidence that the title to said property was not substantially defective.” Whether a title is defective is a question of law for the court. The jury should find the facts, but it is for the court to say whether they constitute defects, or whether, on the whole, the title is defective. Then the phrase “not substantially defective,” is loose and indefinite. A purchaser is entitled to a merchantable title, a marketable title—-such a one as will bring in the market as high a price with, as without the objection. Parker v. Porter, 11 Ill. App. 605; Brown v. Cannon, 5 Gilm. 174.

Other errors complained of we deem it unnecessary to discuss, as they are not likely to occur on another trial.

For the errors indicated the judgment will 'be reversed and the case remanded.

Reversed and remanded.


author: Gaby, J.

text:
    Isaac V. Brokaw et al. v. Cornelius B. Field et al.

      Mortgages—Foreclosure—Limitations—Husband and Wife.

    1. The makers of a mortgage are estopped from denying the indebtedness set forth therein.
    2. The recitals in a mortgage, setting forth the existence of a debt, accompanied by an agreement to pay the same, are “ evidences of indebtedness in writing,” within Sec. 16 of the act concerning limitations.
    3. Where, under the terms of a mortgage, the whole debt does not become due by default in the payment of interest, and proceedings to sell under such default are begun, a tender of the sum due, with interest and expenses, will be sufficient ground for bringing the same to an end.

      4. In the case presented, this court holds that both the legal and equitable estates were conveyed by the mortgage given, and that the debt of the husband was a valid consideration for the giving thereof.
    5. The burden of proving the discharge of property standing in the relation of surety, by an extension of the time of payment of a debt, is upon the. person contending the same was made.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Thomas Dent, for appellants.
    Messrs. James IL Eds all and Henry W. Magee, for appellees.
   Gaby, J.

The record shows that December 27, 1872, the appellee Field, as trustee for Harriet M. Harvey, wife of James M. Harvey, and the said Harriet and James, executed a mortgage to the appellants to secure to them the sum of $10,032.65, which the mortgage recited that James owed them for merchandise. The mortgage was not accompanied by any extrinsic evidence of, but recited that James had agreed to pay the indebtedness, on or before three years thereafter, with semi-annual interest.

July 22, 1884, the original bill, in usual form, was filed to foreclose. There was no reason why the foreclosure should not have been had without delay, upon the original bill; but by amendments, demurrers, pleas, answers, exhibits, depositions and oral testimony the record has grown to a bulk of over 350 pages, and still there is no reason why the mortgage should not be foreclosed. The amendments by the appellants have brought in a great deal of surplus-age, but the facts of the execution of the mortgage, and that the indebtedness has never been paid, stand uncontested upon the record, the bill having been dismissed without the introduction of any evidence by the appellees. In 1877 James M. died, and the indebtedness was not presented in the course of administration asa claim against his estate.

The recitals in the mortgage estop the makers of it to deny the indebtedness as therein stated. This rule has been so often repeated that it seems useless to refer to cases. They run from Crisman v. Mathews, 1 Scammon, 148, through a large part of the subsequent volumes of the Illinois reports. Conger v. Lancaster, 6 Yerg. 477; Newbury v. Rutter, 38 Iowa, 179, and Jones on Mtg., Secs. 677, 1225, show that the recitals of the existence of the debt and of the agreement of James M. to pay it, are “evidences of indebtedness in writing,” to which the limitation is ten years, under Sec. 16 of the act in regard to limitations. If he had given his note for the debt, and the mortgage had been to secure it, it would have been no better than it is in the present shape.

Whether there were defaults in the payment of interest more than ten years before the filing of the bill or not, is now of no importance. Those installments of interest have been paid. If they had not been, it may be that such of them as became due more than ten years before suit would have been barred, but that is by no means certain. Grafton Bk. v. Doe, 19 Vt. 463.

The provision in the mortgage that upon any such default it should be lawful to sell, does not in terms, or by construction make the whole debt due, by such default of the interest. It does not provide that the sale shall be to pay the whole debt, and no sale for more than the interest due could be made under it, unless, perhajDS, the premises not being susceptible of division, the sale must be of all or not at all. And even then it seems that the appellants could only retain the amount due, and their security for the residue of the debt would be gone. Smith v. Smith, 32 Ill. 198. Such a provision is a mere privilege to the creditor; inoperative, and of no effect, unless he elects to avail himself of it. Cleaver v. Herbert, 61 Ill. 126; Barbour v. White, 37 Ill. 164; Richardson v. Warner, 28 Fed. R. 343.

And if proceedings to sell on such default had been commenced, a tender of the sum due, with interest upon it and expenses, would have been sufficient ground for stopping them. Tiernan v. Hinman, 16 Ill. 400; Bane v. Gridley, 67 Ill. 388. The debt, therefore, was not due, and the statute of limitations did not begin to run until December 27, 1875, and the bill was filed within ten years thereafter.

If the statute of 1874, in relation to the relief of sureties when the principal debtor dies and the claim is not within two years presented against his estate, can apply to this case, it will only reduce the mortgage so much as the parties resisting the foreclosure shall show Would have been paid in the course of administration. All of the matter in this record as to the charge of the goods to Mrs. Harvey, the agreement of February 29, 1872, to give a mortgage, the $10,000 bond and mortgage never used, and all the evidence, except the mortgage itself and that relating to taxes, is surplusage. There is nothing in the objection that Field, as trustee, could not mortgage. His execution of the mortgage carried the legal estate. Dawson v. Hayden, 67 Ill. 52; Graham v. Anderson, 42 Ill. 514; Rcece v. Allen, 5 Gilm. 236. By joining in it Mrs. Harvey and her husband carried the equity. Sec. 18, Act 1872, Conveyances. His debt was a valid consideration. Edwards v. Schoeneman, 104 Ill. 278.

The decree must be reversed and the cause remanded. The appellants are entitled to the same remedy upon the mortgage, • and no other, that they would be entitled to if they had now to present to the court the promissory note of James H. Harvey properly described in the mortgage, to the same effect as his agreement there is recited. It makes no difference in the case whether Mrs. Harvey is a defendant, in her capacity as executrix or not; no additional costs are made thereby.

Tliis record could not be made intelligible to any but those conversant with the case, within any reasonable limits, and therefore no effort is made to state all the facts, and the law applicable to them, as their like will never happen again.

If there was any extension of the time limited for payment of the debt, without the consent of Mrs. Harvey, by which her property standing in the relation of surety, was discharged, the burden of proving such extension is upon her. Stearns v. Sweet, 78 Ill. 446.

Reversed and remanded.


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    Gustave Manowsky for use, etc., v. James Conroy, Impleaded, etc.

      Garnishment—Answer of Garnishee—Truth of—Burden of Proof—Sec. 2, Chap. 62, R. S.

    1. The answer of a garnishee must be taken as true in the absence of proof to the contrary.
    2. The traverse of such answer by the execution creditor does not relieve him of the duty of proving the same untrue.
    3. Upon garnishment proceedings wherein it is sought to reach funds claimed to be due the judgment debtor, notice having been served upon the garnishee by sub-contractors under such debtor in conformity with the requirements of the lien law, to recover claims aggregating the balance due or more, this court declines to interfere with the verdict for the garnishee, for the reason that Sec. 2, Chap. 62, R. S., touching the appearance of claimants and the litigation of their rights, was not complied with.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kibk Hawes, Judge, presiding.
    Judgment was rendered in the Superior Court of Cook County for $335.12 and costs, in favor of Edward Otto and against Gustave Manowsky; execution was issued and returned by the sheriff, no property found. Otto then filed an affidavit for garnishment, and appellee was served with summons, as garnishee, and interrogatories being filed, he answered that there was a written contract between himself and Manowsky, by the terms of which Manowsky agreed to build for him a house to cost $1,300; that the price was to be paid in installments; that $900 of the amount had been paid before the service of the garnishee summons, and that the remaining $400 was not due, as Manowskj^ had not completed his contract; that notice under the lien law of the State had been served on him, Conroy, for liens, to the amount of about $350, the names of the claimants and amounts being specifically stated; that the time for giving such notices has not expired, and that he believes the amount of sub-contractor’s liens, to which the building is liable, exceeds the sum of $400; that Manowsky abandoned the work before the building was completed, leaving about $50 worth of labor and materials still to be furnished therefor; and insisting in said answer that under the statute he was entitled to retain whatever is due Manowsky to protect himself against said liens. The answer was sworn to, and a traverse thereto filed by Otto. On the trial, the judgment, execution and return were introduced in evidence. Otto then testified that the judgment was wholly unpaid, and plaintiff rested. On motion of Conroy, the court then instructed the jury to find for him, Conroy. Verdict was rendered accordingly and motion for new trial by appellant. Motion overruled and judgment on verdict, from which Otto appeals.
    Messrs. Holden & F arson, for appellant.
    Messrs. Snowhook, Johnston & Gray, for appellee.
   Garnett, P. J.

The only question presented is, on whom was the burden of proof? The court below, in its instruction to the jury, assumed that the answer of the garnishee was to be taken as true, in the absence of proof. That the ruling was sound, is attested by a series of decisions in this State, which must control the action of this court. Kergin v. Dawson, 1 Gilman, 86; Ill. Central R. R. Co. v. Cobb, 48 Ill. 402; C. & St. L. R. R. Co. v. Killenberg, 82 Ill. 295; C. & St. L. R. R. Co. v. Hindman, 85 Ill. 521.

The traverse of the answer did not relieve the execution creditor of the duty of ¡moving what the garnishee declined to admit. If the answer was uncertain or insufficient in any material point, the court, on proper application, would have required a further answer. But having taken issue on the facts presented by the answer, the burden of proof remained on Otto.

Sec. 2, Chap. 62, prescribes the course to be pursued, when the fund in the hands of the garnishee is claimed by any other person; it provides that such claimant shall be allowed to appear and maintain his right, and if he does not voluntarily appear, notice shall be issued and served on him in such a manner as the court may direct. Here the parties claiming the remaining $400 of the price of the building never appeared, nor were they served with any notice to appear, and it may well be doubted whether the court could have compelled the garnishee to litigate the validity of their claims until they were so notified. The judgment is affirmed.

Judgment affirmed.


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    Joseph Koerper v. Jacob Jung.

      Sales—Fixtures—-Title—Warranty of—Avoidance by Parol—Freehold —Damages—Evidence—-Instructions.

    1. A warranty of title contained in a bill of sale of fixtures, constituting a part of the freehold, can not be avoided by the declaraiion of the vendor to the vendee before the execution thereof, that he does not own them.
    2. In an action for a breach of such a warranty, a recovery may be had for the value of the property in question, to a tenant occupying the premises wherein they are located.
    [Opinion filed May 8, 1889.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. ■
    Messrs. C. A. Allen and Frank J. Loesch, for plaintiff in error.
    Mr. Louis Shissler, for defendant in error.
   Gary, J.

This was an action upon a warranty of title contained in a bill of sale of fixtures of a butcher shop or meat market. With the fixtures was transferred a lease of the premises. It is conceded that the fixtures did not belong to the vendor, plaintiff in error, but were part of the freehold.

He seeks to escape liability on the ground that before the execution of the bill of sale, he told the vendee, defendant in error, that the fixtures in question were not his. The warranty is not thus to be avoided by parol. Wadhams v. Innes, 4 Ill. App. 642; Wadhams v. Swan, 109 Ill. 46; Beach v. Miller, 51 Ill. 206; Keegan v. Kinnaire, 12 Ill. App. 484; Rawle on Cov. for Title, See. 88.

At the instance of the plaintiff in error the jury were instructed that the recovery could be only what the articles were reasonably worth for the purpose of removal. It is quite clear from the whole case that between the parties at the time oE the sale, the value was considered from $350 to $400, and that price paid, so that if money had and received, being paid for a consideration that had failed, would lie, that would be the measure of recovery.

And in trespass for taking fixtures, the plaintiff being but a tenant, the value is to be estimated by what they are worth for use to tenant, as situated. Thompson v. Pettitt, 59 Ill. 101; Lockley v. Rye, 8 M. & W. 133; and the same rule applies on a breach of warranty of title. Grose v. Hennessey, 13 Allen, 389. The instruction was, therefore, more than the plaintiff in error was entitled to, but the jury, in the administration of natural j'ustice, assessed 'the damages at $350. In this they made no mistake. These views dispose of the questions in the case, and the j'udgment is affirmed.

Judgment affirmed.


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    Lake Shore & Michigan Southern Railway Company v. Joseph Probeck. Same v. Frederick Schmidt.

      Railroads—Crossings—Personal Injuries—Trains—Careless Management of—Excessive Speed—Ordinance—Flagman—Negligence of—Evidence—Instructions.

    1. A law or ordinance touching the speed of passenger trains, does not apply to an engine and tender.
    2. An instruction which does not confine the right of recovery for a personal injury to the ground alleged in the declaration, is bad.
    [Opinion filed May 8, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Pliny B. Smith, for appellant.
    Mr. Farlin Q. Ball, for appellees.
   Gary, J.

These are cases to recover separate damages for injuries sustained at the same time by the appellees at a railroad crossing of a street in Chicago. In all respects, except the injuries, the cases are alike, and were tried at once by the same jury. The declarations each contained two counts, the first alleging careless and improper management of the train as the cause of the injury, and the second, speed in excess of that allowed by an ordinance of the city.

There was no train of cars; only an engine and tender with nothing attached. There was testimony that the flagman at the crossing was inattentive to his duty. The ordinance limited the speed of “ passenger trains.”

The first instruction for the appellees put before the jury as a ground of recovery, “a greater rate of speed than is allowed by the ordinance of the City of Chicago, or by the laws of the State of Illinois.” The second, that the appellants were “then and there guilty of negligence which directly contributed to the injury.” The cases will have to be tried again, as both these instructions are wrong. An engine is not a “passenger train.” There may be the same reason for limiting its speed, but that is for the authorities of the city to determine. There is neither ordinance of the city nor law of the State, to which the first instruction could refer.

The second instruction does not confine the right of recovery to the ground alleged in the declaration. Any neglect by the flagman was a matter for the jury to consider under the instruction, but not under the declaration. In principle the fault is the same as in C., B. & Q. R. R. Co. v. Magee, 60 Ill. 529; see, also, C. & A. Ry. Co. v. Mack, 72 Ill. 141. It is unnecessary, if not improper, to comment upon the evidence. The judgments are reversed and the causes remanded.

Reversed and remanded.


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    Peter D. Gilek v. Ernst Stock.

      Negotiable Instruments—Notes—Collection of—Injunctions—Fraud and Duress—Conflicting Claims—Voluntary Compromise—Mistake of Law.

    This court will not disturb a voluntary settlement of conflicting claims, though based upon an erroneous interpretation of the law.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. F. H. Trude, for appellant.
    Mr. Edw. H. Fliehmann, for appellee.
   Gary, J.

This is a bill in chancery, filed by the appellant, for an injunction against the collection of some promissory-notes, given by him to the appellee. Whether he is entitled to any relief can not be determined upon this bill, because of the insufficiency of its allegations, and the affirmance of this decree will be no bar to another suit, upon a bill presenting a good case, or to an application on the law side of the court for an opportunity to make a defense to the notes, upon which judgments by confession have been entered. The bill seeks to make a case of fraud and duress.

The parties had been partners. The appellee wished to withdraw from the business. In the dissolution the interest of the appellant was fixed at $4,000, and that of the appellee at 8,000. The mode adopted for a dissolution was that one Potthost became a partner with appellant, the new firm gave their notes to the appellee for $4,000, and Potthost gave to appellee cash and notes to the amount of $4,000. After the new firm had been in business about fifteen months, the appellant became dissatisfied with Potthost, and bought him out for $1,000. Potthost then owed the appellee $2,870 on judgment notes. What became of Potthost then, the bill does not show; it may reasonably be inferred that the claim of appellee upon him had no value.

The charges of the bill upon which relief is asked are that the appellee presented to the appellant the notes of Potthost, and demanded that appellant should pay them, threatening that unless the appellant paid them, the appellee would enter judgment upon them and seize the stock and business of the appellant and the appellant believed him; thatthe appellee then told the appellant to come to the office of the ap>pellce, where he repeated his threats; stated, and procured his attorney to represent to the appellant that he was liable for the amount of the notes, and that they represented a firm debt; that unless he at once paid them, his stock of groceries and business would be sold and he turned out of doors; that he believed what was so told him, and gave the judgment notes in question amounting to $2,500, and the appellee gave to the appellant the notes of Potthost on which was then unpaid $2,870, besides probably, some accrued interest. ¡Now, upon these facts it is quite clear that the appellee might, in good faith, have believed that the purchase by the appellant from Potthost for $1,000 of what the appellant had sold to him for $4,000, of which Potthost had paid $1,130, leaving the appellee apparently no prospect "of getting anything from Potthost, was a fraud upon him, and that under an execution against Potthost he could avoid the sale by Potthost to the appellant.

All of the allegations of the bill are consistent with the hypothesis that the parties dealt with each other at arm’s length, with no re’ation between them that took the transaction out of the ordinary rule that governs business transactions. “A voluntary compromise or settlement of doubtful or conflicting claims will not be set aside or disturbed in the courts merely because the parties may have acted under a mistake as to the law,”—quoted from Stover v. Mitchell, 45 Ill. 213, which was a case like this, in the circumstances that the property of the plaintiff was being subjected to executions against his vendor, and that both the defendant and his attorney said that the judgments on which the executions issued, were liens upon the property. Many authorities are there cited in support of the doctrine. The decree sustaining the demurrer and dismissing the bill is affirmed.

Decree affirmed.


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    Andrew F. Wanner et al. v. Michael J. Winters.

      Replevin—Malice—Trover—Partnership—Damages—Actual and Vindictive-Estoppel—Remittitur.

    1. The acts or words of one of several partners touching property of his firm, is as to third persons in good faith acting thereon, the same as if done or said by all.
    2. Where wilful acts or words of one partner, of which the rest o£ the firm are ignorant, result in injury to another, there can be no verdict for separate or different amounts against the individual members of the firm.
    3. A firm maintaining replevin for the recovery of property purchased from their lessee through the false representations of one of its members that the said lessee was its owner, the rest of the firm being in ignorance thereof, is liable for the actual damages arising therefrom.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Messrs. Cratty Bros. & Ashcraet, for appellants.
    Messrs. Cameron & Hughes, for appellee.
   Gary, J.

This was an action for maliciously, and without any probable cause, taking chattels of the appellee of the value, as the jury have found, of 8350, by a replevin writ, issued by a justice, with counts in trover joined.

The property had been the ajipellants’, and they had leased it to one Woodruff. The appellee claimed that he applied to Wanner for information in regard to Woodruff; told him that he was negotiating for a partnership with Woodruff, and to buy a half interest, and that Warner told him the property belonged to Woodruff. There is nothing in the record tending to show that the other appellant, Webber, ever had, before the property was taken on the replevin writ, any information that any such conversation was had between appellee and Wanner.

In answer to questions put to them under the statute, the jury have found that such conversation did occur; that the appellee relied upon Wanner’s representation and bought from Woodruff first the one half and then the other of the property in dispute, and that when the appellants took it, it was worth $350. They found a verdict for $850. The taking was March 11, 1885, and the verdict September 29, 1888.

The value of the property and the interest thereon amounted, at the time of the verdict, to $424, so that there is an excess as to Webber, against whom there was no foundation for vindictive damages, of $426, and as to him the verdict is wrong. Grund v. Van Vleck, 69 Ill. 478; Becker v. Dupree, 75 Ill. 167. And there could not be a verdict against the appellants for separate or different amounts. Pardridge v. Brady, 7 Ill. App. 639. But for the actual damages the appellants, being partners, are both liable for the taking of the property of the appellee, in which taking they both joined, although his title, as against them, wras by estoppel, by reason of the representations of Wanner. What either partner does or says as to partnership property is, as to third persons in good faith acting upon it, the same as if done or said by both. Story on Part., Sec. 108; Wolf v. Mills, 56 Ill. 360. The specific findings by the jury save this court the labor of reviewing twenty-five instructions on the part of the appellee, and thirty-two on the part of the appellants, many of them lengthy, and a couple dozen special questions.

As the appellee remits $426, the judgment will be reversed as to that amount, and affirmed, at his costs, for the residue only, $424.

Reversed in part and affirmed in jpart.


author: Per Ouriam.

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    Chicago Hansom Cab Company v. Sophie H. Havelick.

      Master and Servant—Cab Company—Driver—Negligence of—Personal Injuries—Evidence.

    1. The credibility o£ the witnesses in a given case is for the jury.
    2. In an action for the recovery of damages from a cab company for injuries suffered through the alleged negligence of one of its drivers, the errors complained of being of a harmless character, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. H. S. Monroe, for appellant.
    Messrs. Joseph S. Hennaed and John Gibbons, for appellee.
   Per Ouriam.

This is an appeal from a judgment rendered against appellant for injuries to appellee, alleged to have been received by being run over by a cab driven by one of appellant’s servants.

There is no complaint of the instructions, but it is contended that the verdict is against the evidence. The contest was upon the extent of the injury suffered by appellee. Upon this question there was great conflict of evidence, and it was manifestly settled by the jury by their giving credence to the witnesses of appellee, and refusing to believe those who testified for appellant.

The credit to be given to witnesses can be much more intelligently determined by a jury than it can be by a reviewing court, and the law gives to the jury the exclusive right to set-tie such a question. It can not be said that the evidence does not support the verdict, and in such case the court can not interfere except for error of law.

It is contended that improper evidence was admitted over defendant’s objection, and that the court made some improper intimations in questions asked some of the witnesses, and in remarks to counsel. We are of opinion that no error was made in admitting evidence, which in any manner affected the result. The errors, if, indeed, any at all were committed in this regard, were slight and immaterial. It is doubtful whether counsel has any proper exception in the record to the questions and remarks of the judge of which complaint is made, but treating them as properly excepted to, we are of opinion there was no material error in that regard.

The judgment of the Superior Court will be affirmed.

Judgment affirmed.


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    Abraham Bernstein v. William Patterson.

      Sales—Overpayment—Recovery of Surplus—Evidence.

    In an action to recover an amount claimed to have been paid,over and above what was due upon a certain purchase of goods, the plaintiff alleging that, being unable to read or write, he had trusted a third person to figure for him, this court holds that his testimony alone did not warrant the judgment in his behalf.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Blum & Blum, for appellant.
    No appearance for appellee.
   Gaby, J.

There is no appearance in this court by the appellee, and it would seem that the real case can hardly be fairly presented by this record, but the court must take it as it is.

The appellee can not read or write. He bought goods from the appellant to the amount of $70, for which he gave notes secured by chattel mortgage. He testified that in a month or six weeks after he gave the notes he paid the first one and took it up, and in a week or ten days thereafter that he paid the second one and took it up, and thereafter, down to date, more than sixteen months after the notes were given, went on paying small sums, until, as he said, he had paid in all over 8120. His excuse for thus continuing to pay was that he could not figure, and as to the 8120, a constable figured it up for him. He was the sole witness on his own behalf. The constable was not produced. He said he always got receipts some of which he had lost, but those he produced only amounted to 860.20, and he now recovers 860, on the assumption that, deducting the value of some goods taken away from him under the mortgage, he has overpaid that sum. His testimony alone did not warrant a recovery. If his excuse for paying after his debt was paid, that he could not figure, was sufficient, it made his testimony of no value.

The appellant and his clerk contradicted the appellee on the most material points, but it would be useless labor to take more time or space with the case.

Judgment must be reversed and the case remanded. Peaslee v. Glass, 61 Ill. 94.

Reversed and remanded.


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    David E. Fraser et al. v. Thomas Hand.

      Master and Servant—Foundry—Molder's Helper—Vice-Principal— Negligence of—Personal Injuries—Defective Machinery—Improper Methods—Fellow-Servants.

      In an action to recover for personal injuries suffered by an employe through the negligence of a superior servant whose orders he was bound to obey, this court declines, there being no error of law in the case, to disturb the verdict in behalf of the plaintiff.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. JohnP. Altgeld, Judge, presiding.
    Messrs. Tatham & Webster, for appellants.
    Messrs. John M. Southwokth and Edward T. Glennon, for appellee.
   Gary, J.

This is an action on the case by the appellee, for injuries sustained, as he alleges, in consequence of defects in machinery of the appellants by reason of which the appellee, while, with due care on his part, obeying the orders of a superior servant, was injured. If this version is true, the case is brought within the principle of Chi. & A. R. R. v. May, 108 Ill. 288.

The appellee was a helper, working with a molder in a foundry, and it was his duty to obey the molder. The particular work they were then at was moving a flask,” an iron box, then filled so heavy as to require a crane, on one side of which flask the handles, that once were on it, had been broken off. The appellee testifies, and to that there is no contradiction or corroboration, that the molder told him to hook the chain, by which it was to be raised, to the flange of the box, and it being so raised and swung, he was told to steady it down, and while so doing the chain or hook slipped on the side of the appellee, and the flask fell and crushed some of his toes. With four chains instead of two, or with precautions which might have been adopted to prevent the slipping, the accident would not have occurred; but the manner of doing the work was not under the direction of the appellee.

The injury did not occur through any carelessness of the molder in doing what he, as a fellow-laborer did; his side did not slip. It was a consequence of the unsafe mode adopted, with a defective flask, by direction of a superior to the appellee, and in obeying the orders of that superior he met the injury.

The appellee testified to considerable permanent disability, from the loss of his toes, as well as pain and expense. The jury assessed his damages at $700. This is not manifestly excessive.

The verdict of juries in cases of this character, where no error of law is in the case, are usually conclusive.

Judgment affirmed.


author: Gannett, P. J.

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    Charles H. Talcott et al. v. Grant Wire & Spring Company.

      Insolvency—Creditor's Bill—Receiver—Sec. 25, Chap. 32, R. S.—Injunctions—Preferences—Judgment by Confession.

    Upon a contention involving the winding up oE an insolvent corporation, this court holds that certain notes were given by it to plaintiff and judgment confessed thereon upon an agreement that a creditor’s bill for the benefit of all the creditors of the firm should be filed; that plaintiffs were not entitled to any preference over the other creditors of the firm, and that although it was error to dismiss the intervening petition of another creditor setting forth the facts above recited, the same was cured by the decree ordering a pro rata distribution of the assets in the receiver’s hands.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. George S. House and E. C. Hagar, for appellants.
    Mr. Millard E. Powers, for appellee.
    Messrs. Munroe & Geer, and Manning & Castle, for Joseph G. Bemis et al., and Messrs. Isham, Lincoln & Beale, for Naylor & Co.
   Gannett, P. J.

On December 16, 1887, appellee, a corporation organized under the general incorporation law of this State, being insolvent, ceased business, and called a meeting of its creditors on the 31st of that month. One of its creditors, Joseph G. Bemis, in behalf of himself and all other creditors who might come in and contribute to the expense of the suit, filed a bill in equity in the Superior Court on December 17, 1887, alleging therein the names of the owners of the capital stock; that the company had ceased doing business, leaving a large indebtedness unpaid, including his own; that the company was insolvent, and praying therein for the appointment of a receiver; that the corporation might be dissolved pursuant to Sec. 35, Chap. 33, Revised Statutes, and that George Bancroft and Stephen Mershon, the president and secretary of said company, might be enjoined from assigning, incumbering or interfering with any of its assets, and from making any entries upon its books or papers. On the same day a summons was issued and served on the company, its president and secretary (who were also stockholders), and a writ of injunction in conformity with the prayer was at the same time issued and served on the president and secretary. Appellants were also simple contract creditors of the corporation, and began immediately to make efforts, through their attorneys, to secure priority over other creditors. At the meeting of creditors on December 31st, the counsel for appellants suggested that judgment notes should be given for their clients’ claims, and appellee did execute and deliver to them notes and confessed judgments, as requested.

Appellants caused judgments to be entered in their favor and against appellee, by its confession, on December 31,1887. Executions were at once issued, and returned no property found, and a creditor’s bill was filed by appellants against appellee on December 33, 1887, which appellants now insist is a first lien in equity in their favor, and that they have thus secured a preference over all the other creditors. In the latter suit an intervening petition was filed by ¡Naylor & Go., also creditors, in which they alleged that the confessions of judgment were given to appellants on their agreement to enter judgment and file a creditor’s bill for the equal benefit of all the creditors. The answer of the appellee alleges the same fact. The two bills were heard together, and the court denied the petition of ¡Naylor & Go., excluded the evidence taken thereon, and dismissed their petition, but also denied appellant’s claim to a preference, and ordered a pro rata distribution of the funds in the hands of the receiver among all the creditors. Denying the preference to appellants is now the subject of their complaint.

Although the decree in form ignores the contention of ¡Naylor & Co., in substance it grants all that they prayed for, and some reference by appellants to the facts asserted in the intervening petition might therefore reasonably have been anticipated. But in the brief filed for them a discreet silence on this topic is maintained, and, while the brief of appellee is largely composed of a discussion of these facts, appellants have not adverted thereto, either by oral argument or reply brief. In this condition of things the silence of appellants may be taken as a confession that the allegations of FTaylor & Co.’s petition are true. Upon that alone, however, we have not relied. Examination of the record satisfies us that the petition was sustained by the proof. Appellee had consistently maintained the attitude of impartiality between these creditors. For three days prior to December 21st its officers and legal advisers had been importuned by appellants’ attorneys for priority over other creditors, but all overtures to that end were steadfastly resisted until December 21st, when the creditors met in answer to the call. Although the evidence is conflicting on the point, we think it establishes with reasonable clearness that when the attorneys of appellants, at their meeting, suggested that confessions of judgment be given to enable them to enter judgments on appellants’ demands, the suggestion was not assented to until assurance was given that a creditor’s bill for the equal benefit of all the creditors would be filed. ¡No good reason can be advanced why an appellee should shift its position at that meeting and fall in with the request for preferences, which it had before that time persistently refused. In fact, one of the counsel for the appellants admits, in his testimony given in the cause, that he knew of no reason which made it the duty of appellee to give appellants preferences. There were then no judgments against the company, and all the creditors were of equal merit. Ho superior equity has even been suggested in behalf of appellants, nor does there appear any peculiar obligation to them which distinguishes them from other creditors. The maxim that equality is equity is applied to this case without any sense of regret.

The petition of Haylor & Co. should not have been dismissed, nor should the evidence taken thereunder have been ruled out; but as these errors were cured by the decree nothing is left for complaint. The decree is affirmed.

Decree affirmed.


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    Frederick Langfeldt v. Mary McGrath.

      Trespass—Overhanging Wall—Limitations—Nuisance—Continuance— Real Property—Damages.

    1. The doctrine of entireness of recovery in one action for injuries of a permanent kind, is limited to cases where the damage is caused by public improvements under authority of law, the construction thereof being done in a reasonably proper and skillful manner, so as to avoid all unnecessary loss and injury.
    2. Where improvements have been imperfectly built, and'there has been negligence in the mode of their construction, the person whose property has been injured thereby need not assume that the injury is a permanent one.
    3. An act which the law allows, if done in a proper manner is not a nuisance, although damages may be recovered therefor as in certain cases of permanent injury, while an act done in defiance of the law, which naturally and necessarily injures the property of another must be looked upon as such.

      4. A wall so built as to overhang the property of another is a nuisance for which an action may be maintained.

      5. In such case the damages must be limited to the time oE commencing the suit, and the measure thereof to such injury to the value of the use and occupation, as may have accrued after the acquirement of title and before the bringing o£ suit.
    6. In the case presented, this court holds that the measure of damages is the difference betweeen what the value of the use and occupation of the land in question would have been during the period named, had the wall not overhung the same, and what it was as the wall actually stood.
    7. In such cases there can be no recovery for any time anterior to the plaintiff’s right of possession.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. John T. Richards, for appellant.
    Mr. William J. English, for appellee.
   Garnett, P. J.

In 1882 appellant was the owner of a lot on Archer avenue in Chicago, which was west of and adjoining another lot then in possession of appellee’s husband. A brick building was erected by appellant on his lot, the east wall thereof being completed in February of that year. That wall was not true, but to some extent overhung the lot in McGrath’s possession. About January 1, 1886, McGrath died, and later in that year his widow, appellee, made preparations to put up a four-story brick building on the lot of which her husband had been in his lifetime in possession. Her architect then discovered that appellant’s wall was not plumb, and he thought it necessary to reduce the building to three stories, which he then determined to do, and which was accordingly done. In the progress of building she found the overhanging of appellant’s wall had increased after she began the work on her house, and this made some change in her west wall necessary, but she actually built such foundations and walls (excepting a part of her west wall) as were necessary for a four-story building, although they were much more expensive than a three-story building required. This action was originally in ejectment, having been commenced by appellee against appellant, May 7, 1887, but by consent of the parties was changed to an action of trespass on the case, and the declaration charges appellant with wrongfully building his said wall overhanging the premises of appellee, so as to make the latter unsafe and dangerous, and to prevent her from erecting proper and suitable buildings thereon, and that her possession and enjoyment have been greatly damaged and injured, and she has been deprived of great gains from the use of her premises.

The defense was that the injury was permanent, and having been committed in the lifetime of Michael McGrath and before appellee acquired title, the right of action was in him alone and could not be assigned, and that if it could be assigned the original cause of action was barred by the five-year statute of limitation. A verdict for $575 was found for appellee, and judgment thereon having been rendered the defendant appealed. There appears to be a distinction between injuries permanent in their nature, which are authorized by law, and those which are wrongful and without legal sanction. The doctrine of entireness of recovery in one action for injuries of a permanent kind is limited to cases where the damage is caused by public improvements under authority of law, the construction thereof being done in a reasonably proper and skillful manner, so as to avoid all unnecessary loss and injury. O. & M. Ry. Co. v. Wachter, 123 Ill. 440.

But when the improvement, such as a bridge, has been" imperfectly built, and there has been negligence in the mode of its construction, the party whose property is damaged is not bound to assume that the structure will be a permanent one. To indulge in such assumption would be to take it for granted that the party building, having done a wrong, intended to continue in such wrong doing. C., B. & Q. R. R. Co. v. Shaffer, 124 Ill. 112.

An act which the law allows, if done in a proper manner, can not be considered a nuisance (C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203), although damages may be recovered therefor, as in the common case of permanent injury by the operation of railroads to premises adjoining their right of way; but an act committed in defiance of law, which naturally and necessarily injures the property of another, as in the case at bar, is a nuisance. “ An action may be maintained for the creation of a nuisance, and a subsequent action may be maintained for its continuance. The continuance of that which was originally a nuisance is regarded as a new nuisance, and although a recovery may be barred upon the original cause, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued by reason of its continuance within the statutory period.” C., B. & Q. R. R. Co. v. Shaffer, supra. Even if appellee might have treated the injury as permanent (C. & E. I. R. R. Co. v. Loeb supra) we do not understand that she has so elected. On the contrary she seeks to recover damages for the continuance of the wrong. There can be no doubt that the overhanging wall was a nuisance, for which an action was maintainable, (Cooley on Torts, 567,) and appellee was therefore entitled to recover. The basis of her recovery in the trial court, was, however, unwarranted. The theory of the court as shown by the admission of evidence over the objection of appellee, was, that she might recover the value of the fourth story of the proposed building, over the cost thereof, and the difference in the expense between the walls and foundations for a four-story and a three-story house. Following that measure of damages appellant’s liability would depend on the contract which appellee had made for the improvement of her property; that is, if she had agreed to build a fourteen-story house, the damages would be very large; but if her contract was only for a small one-story building on the easterly side of her lot, remote from appellant’s wall, the damages might be merely nominal. The making of her contract was unknown to appellant and entirely beyond his control. Yet by the rule adopted in ascertaining the damages, if the contract had been for a fourteen-story building, he might have been held to pay the value of appellee’s lot, and at the same time she remain the owner of it. What is the true measure of damages? If the suit was for condemnation of that part of the lo.t overhung by the wall the limit of compensation would be the market value of the land to be taken, and such damage as the remainder of the land would suffer on account of the taking. In that case the injury would be treated as permanent. But in the case presented by this record there can be no recovery for permanent injury. The damages must be limited to the time of commencing the suit, and the measure thereof to such injury to the value of the use and occupation, as may have accrued to plaintiff’s lot after she acquired her title and before she brought suit. The first question will be, what was the value of the use and occupation, during the period named, if appellant’s wall had not overhung any part of appellee’s lot? And next, what was the value of the use and occupation, during the same period, with appellant’s wall as it actually stood? The difference is the measure of damages. Francis v. Schoellkoff, 53 N. Y. 152.

In conclusion it should be said, we have assumed that appellee had the right of possession of the lot she claims from a period prior to the beginning of her improvement, but there is no satisfactory evidence in the record that she had either possession or right of possession before that timé. She certainly can not recover damages for any time anterior to her right of possession.

For the error in admitting the evidence referred to the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Garrett, P. J.

text:
    John W. Scott et al. v John Magloughlin et al.

      Trust Deed—Foreclosure—Note—Consideration—Lacle of—Fraudulent Conveyance—Alimony.

    1. A conveyance made by a husband for the purpose of defrauding a wife, seeking a divorce, of alimony or maintenance, can not stand.

      2. Equity will not foreclose a trust deed given with such an end in view.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamiesor, Judge, presiding.
    Mr. C. C. March, for appellants.
    Messrs. Wilsor & Zook, for appellees.
   Garrett, P. J.

The bill in this case, filed by John W. Scott, as trustee, against John Magloughlin, Robert Blair, William T. Blair and others, prays for a foreclosure of a trust deed, dated February 2, 1885, executed by Magloughlin and wife to Scott, to secure payment of Magloughlin’s note of that date for $1,000. One of the defenses set up is that Robert Blair was the equitable owner in fee of the premises conveyed by the trust deed, and that the note and trust deed were executed at the instance of his attorney, William T. Blair, to protect the property for Robert’s benefit, against his wife, who at the date of the transaction had a divorce suit pending against him.

The Superior Court found there was no consideration for the note, and dismissed the bill for want of equity. There was no lawful consideration for the note. The evidence in the record satisfies us that the purpose of making the note and trust deed was to guard the property against attack by Robert Blair’s wife.

A conveyance made by the grantor for the purpose of defrauding his wife of alimony or maintenance, is so tainted that a court of equity will not enforce an agreement of the grantee, made at the same time, to hold the property in trust for the grantor. Tyler v. Tyler, 126 Ill. 525.

Equity will not foreclose a mortgage executed to defraud creditors of the mortgagor. Miller v. Marckle, 21 Ill. 152. That the claims of a wife to maintenance stand on the same footing as the claims of creditors, can admit of no doubt since the decision in Tyler v. Tyler.

The transfer of the note by mesne assignments to Albert B. Clark, one of the appellants, vests in him no greater right, in a suit to foreclose the trust deed, than the original holder had. Olds v. Cummings, 31 Ill. 188, and numerous other cases, decided since, concur in this rule. It is not necessary to examine any other of the questions argued. The decree is affirmed.

Decree affirmed.


text:
    Gabriel Jacobs et al. v. E. L. Kastholm et al.

      Partnership—Dissolution—Receiver—Settlement by Attorney—Authority to Act.

    This court holds that the solicitor of certain co-partners was duly authorized by them to act according to his best judgment, touching proceedings instituted for the dissolution of the firm of which they were members.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lobbst C. Collins, Judge, presiding.
    Messrs. Walker & Judd, for appellants.
    Messrs. Abbott, Oliver & Showalter, for appellees.
   Per Ouriam.

A hill for the dissolution of the partnership and for an account was filed by some of the co-partners against the others. A receiver was appointed, and assets of the firm were converted, and an examination of the books and papers of- the partnership was made by the receiver and a statement in writing submitted to the parties, showing the expenses and disbursements, and the balance remaining in the receiver’s hands, and the shares of said balance, to which the parties respectively were entitled; and appellants and appellees by their solicitors agreed to an order which the court entered, reciting among other things, that the parties, “ having approved the doings of the receiver as so reported, and agreed to the distribution of said balance, as shown by said report, and as below set forth, and agreed and stipulated that said receiver shall be discharged when he shall have distributed and paid said balance pursuant to his order, and that said bill of complaint shall be thereupon dismissed without costs.” Subsequently, and at the same term, appellants moved the court to set aside said decree on the ground that they were not consulted by the solicitor about the matter, that the order was entered wholly.without their knowledge or consent and against their wishes, and that appellee was owing to the firm upward, of §1,500. The court overruled the motion, and from said order of the court appellants have appealed. The appeal brings before the court only said order denying the motion to set aside the decree.

There is a conflict of evidence on the question whether appellants gave their solicitor authority to settle the case in his discretion and upon the best terms he could get. The solicitor so swears, and says that in agreeing to the order he acted according to his best judgment and for the best interests of appellants, as 'he understood the matter. He swears that Bichard J. Duggan was present on one occasion, when one of appellants told him to settle the case, and said Duggan swears that he heard appellant, Gabriel Jacobs, tell his solicitor to make the best disposition of the case that his judgment would suggest. It is denied by each of the appellants by affidavit, that they, or either of them, ever authorized the solicitor to settle the case. We can not say upon the evidence in the record, that the court erred in overruling the motion to set aside said order. If the solicitor was given the authority which he claims he had, the decree was binding on appellant, provided the solicitor acted according to his best judgment, and there is no evidence .whatever that would lead to the belief that in consenting to the decree he did other than what he believed to be for "the best interest of those whom he represented.

On the whole record, we are inclined to the opinion that it is fairly made out that he had the authority to act as he did for appellants. The order of the court denying the motion to set aside the decree will therefore be affirmed.

Decree affirmed.


text:
    Henry B. Robinson v. John B. Raulston, Receiver.

      Creditor's Bill—Judgment—Confession of—Preference—Attachment— Garnishment—Inj unctions.

    A courl, or receiver appointed by it upon bill filed by certain stockholders of a corporation praying among other things for the dissolution thereof, its directors alone being named as defendants therein, acquire no control over stockholders thereof.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Messrs. Campbell & Custer, for appellant.
    Messrs. Hoyne, Follansbee & O’Connor, for appellee.
   Gary, J.

September 20, 1888, Leopold J. Kadish, in his own behalf and of all others similarly situated who might desire to join him as complainants and pay their share of the expenses, filed in the Circuit Court his bill in chancery against the Chicago Co-operative Brewing Association, alleging that he was a stockholder in, and creditor of, the corporation; that the corporation, September 18, 1888, confessed a judgment in favor of one of its directors, which is a preference and null and void ; ” that under execution upon that judgment, and attachments in other cases, including one in favor of Kadish, the sheriff had levied upon perishable property, which, unless taken care of, would become worthless ; that the corporation had been doing a losing business; that dissensions existed among the directors and they could not agree upon any plan for rescuing the corporation from its difficulties, but all thought it proper to have a receiver appointed.

The prayer was for a receiver, an injunction against further business, setting aside of the judgment, winding up of the business, and a distribution of its property. The directors, but not the stockholders, were made defendants. Ho cause mentioned in Sec. 25 of the Act concerning Corporations, for which a bill may be tiled, is alleged in the bill. September 22,1888, the appellee was appointed receiver. The appellant had commenced, before the bill was filed, an attachment against the corporation, and by an amendment of the bill was made a defendant, upon the allegation that he had, or claimed to have, some interest in the property of the corporation. February 5, 1889, the appellee filed a petition stating that without leave of the court, the appellant had commenced garnishment proceedings against a stockholder named, and others, to compel them to pay for his use, sums due from them as stockholders, and praying an injunction, which petition the appellant answered, admitting the fact, insisting upon his right to prosecute his garnishments, and denying the right of the receiver to collect from the stockholders what might be due from them. The court awarded the injunction.

It is not necessary in this case to inquire whether, under the power conferred by Sec. 25, on courts of equity, “ on good cause shown, to dissolve or close up the business of any corporation,” any other cause would be good, than some one of those specifically mentioned in the section itself. In one part of the appellee’s brief it seems to be conceded that it would not, and the tendency of the cases, Hyde Park Gas Co. v. Kerber, 5 Ill. App. 132, and Chi. Mut. Life v. Hunt, 127 Ill. 257, is in the same direction.

It is clear, however, from the cases of the Lamar Ins. Co., Chandler v. Brown, 77 Ill. 333, followed in 83 Ill. 288, 84 Ill. 275, and 92 Ill. 55, that the stockholders are not affected by the present bill. Neither the receiver nor the court obtained any hold upon them by it.

Several persons are named as defendants in this bill, without any allegations showing why, but among them" is not the name of the one against whom the garnishee process issued. It would be a convenient way of escaping or postponing the liability of delinquent stockholders of an insolvent corporation, for some of them to file a bill against the corporation and all its creditors, and get the affairs into the hands of a receiver, if thereby they could stop their creditors, without giving anybody else the right to pursue them.

As the appellant was not seeking his remedy from any fund over which the court had obtained control, he ought not to have been enjoined, and the order awarding the injunction is reversed, and the cause remanded with directions to the Circuit Court to dissolve the injunction.

Order reversed.