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

text:
    John King v. C. H. Edwards et al.

      Landlord and Tenant—Lease of Coal Lands—Conditions—Forfeiture— Construction.

    Upon suit to recover possession of leased coal lands this court holds: That the words in the lease fixing the date for the payment of the rent, were merely to fix dates for settlement, and did not bind the lessees absolutely to mine coal before those days; that the lessees were not .bound to open the mine by means of a shaft upon the land itself; that it was their right, if they so preferred, to open the mine by means of a shaft and a subterranean drift started upon other land, provided they prosecuted such work with reasonable diligence, and that the trial court properly found that the lessees used reasonable diligence to open the mine.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Peoria County; the Hon. F. M. Shaw, Judge, presiding.
    This suit was brought by the appellant before a justice of the peace to recover possession of a hundred and sixty acres of coal land leased to appellees by appellant November 11, 1887. The Edwards Coal Co. became the assignee of the lease and is party defendant in the suit. After trial before the justice the suit was appealed to the Circuit Court. The case was tried in the Circuit Court on appeal by the judge without a jury and resulted in the court finding in favor of appellees and giving judgment againstappellant for costs, from which judgment this appeal is taken.
    The object of the suit was to establish a forfeiture of the lease, which had been declared by appellant, and the defendants notified of the fact April 14, 1888. The notice declared that appellant had determined to forfeit said lease on account of the failure of appellees to mine coal and mineral, not paying royalty on the same as provided in said lease for the premises described in the notice and held by the lessees, and the lessees were notified to deliver up possession within sixteen days. The following is a copy of the lease:
    “ This indenture made this 11th day of November, 1887, between John King, party of the first part, and Henry C. Young and Charles H. Edwards, parties of the second part, witnesseth: That the party of the first part in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by the parties of the second part, their executors, administrators, heirs and assigns, has leased to the said parties of the second part all the coal and minerals underlying the following tract, to wit: The southwest quarter of section 10, township 9 north, range 6, east of the 4th P. M., Peoria county, Illinois, to have and to hold, to the parties of the second part,- from the 11th day of November, 1887, to the lltli day of November, 1897. And the parties of the second part in consideration of the leasing of the coal and minerals underlying the above described tract of land covenant and agree with the party of the first part to pay the party of the first part as rent for said coal and minerals five cents per ton for all coal and minerals sold from said premises by the parties of the second part, said rent to be paid as follows, to wit: The first days of January and July of each year after the date of this lease. It is further agreed by the parties of the second part that at the expiration of the term of this lease they will yield up the prem ises to the party of the first part without notice. It is fur ther understood and agreed by the parties aforesaid that the parties of the second part shall have the privilege to occupy as much of the surface of the above described premises as is necessary and convenient to erect all necessary machinery for the mining and storing of said minerals, for tramways and switches for transporting the same, for sinking shafts, for drifting or making slopes for said minerals, for air-shafts necessary and convenient for the safety of said mines, and said mines may be opened at any point on said premises by said parties of the second part that in their judgment it will be most convenient to reach said minerals. It is further agreed that the party of the first part shall have privilege of examining the books of record showing the amount of minerals taken from said mines during the term of this lease. The covenants herein shall extend to and be binding upon the heirs, executors and administrators and assigns of the parties to this lease. Witness the hands and seals of the parties aforesaid the day and year above written.
    “John King, [seal.]
    “O. II. Edwards, [seal.]
    “ Henry C. Young, [seal.]”
    The following is a stipulation.
    “ Stipulation read as follows: It is stipulated that the Edwards Coal Co. may and hereby does, enter its appearance (it being a corporation) in the above case as defendant, and it is agreed that the notices served upon C. H. Edwards and II. C. Young shall be taken, and are valid and binding upon said company to the same extent as if said notices had been duly served on this company.
    “ October 8,1888.
    “ Edwards Coal Company,
    “By W. T. Whiting, attorney.
    “H. C. Young,
    “O. H. Edwards,
    “By their attorney, W. T. Whiting.
    “John King,
    “By Sheen & Lovett, his attorneys.’

      It appears that the facts are not much in dispute. Up to the time of the trial the lessor had received no rent under the lease, nor had there been any coal or other mineral taken out of the premises, nor any machinery erected on the surface of the land for the storing of coal or minerals, or switches or tramways for transporting coal or minerals placed on the land, nor were any of the above improvements contemplated being placed on the land by appellees. The appellees had dug a small hole on the land, ten or twelve feet deep, a few weeks after the lease was made. There had been no drifts or slopes sunk on the property for coal or other minerals, or in connection with any mine under the land, nor had any mine been opened on the land described in the lease.
    It seems that the land of Daily corners with the King land at the northeast corner, and from the nearest point on the King land to the C. B. & Q. R. R. is two or three rods, and it was necessary for appellees, to reach the railroad for transportation of coal, to cross Daily’s land, for which they had no right of way; but he, Daily, testified that he was willing for a reasonable price to grant them the right of way for a tramway across his land to the railroad, but that they would come to no understanding about it with him. After the above lease was executed the appellees leased a tract of land lying east of King’s, where there was access to the railroad, and commenced in March after the date of the lease to sink a shaft on Harding’s land and run it toward King’s land with a view to opening up the mine in that way by a subterranean route from the railroad to the King land.
    There was 120 yards of the shaft already finished and there remained 360 yards more to complete to reach the coal on King’s land, and the appellees were at work driving the shaft as fast as they reasonably could, part of the time with a double shift of hands by which from three to four yards per day could" be driven. It appears from the evidence of the mine boss, John Yates, that the proposed subterranean road to the King land was the most practical route; the nearest because north of the slough (on King’s land); there is not any coal on the north, the main body of King’s coal lying on the south part of the land. It would not be a direct route to take the coal over the ground leased by the Edwards Coal Co. to the railroad. It could be taken over their land by a circuitous route following the slough, but it would cause a pretty big expense, larger than the subterranean route. It cost $1.10 per yard to make the entry after the first twenty-five yards and $5 per yard for that. It would cost $200 to sink a shaft on King’s land. It would cost $350 to prepare the road bed to receive the track from where the trestle would be to the coal on the King land. The track on the surface would be about the same as the track under ground.
    The reason given by Mr. Edwards for not commencing to open the shaft in the winter was that it was much more expensive. But as King wanted them to open' up the mine they sent some men over there and they dug a prospect hole fourteen feet deep on the north side of the slough but found nothing but sand, and then, as it would not be practical to hunt coal in a sand bank, they stopped. They thought then it would be a good thing to lease Harding’s land close to the railroad, so they leased it for fifteen years. “My intentions in leasing King’s land were honest. I expected to work King’s coal after leasing Harding’s. In planning the work I intended to open an entry leading to the main coal of King’s land. I began the work in March and continued as fast as I could, day shifts, until within a few weeks before I went out of the company in July. Young testified it was his endeavor to get to King’s coal as soon as possible. There is no object or intention on the part of those interested in the King lease to hold the coal land without mining it. Having the King lease for only ten years it was their interest to take the coal out of his land first. The parties in interest think the way we are doing is the most practicable, the cheapest but not the quickest.”
    The above are substantially all the facts developed on the trial.
    Messrs. Sheen & Lovett, for appellant.
    In this case a lease was made for the mining of coal, and semi-annual pay days were expressly agreed upon, and the lessees had a right to open a mine at any point on said premises and to use so much of the surface of the land as was necessary to erect machinery, tramways, switches, shafts, slopes, air-shafts, etc. There is here a clearly implied covenant that a mine will be opened, and coal taken out, if it is there to be taken, and sold if there is a demand for it; and that it is not to be taken out by the spoonful, but that the mine will be operated as mines usually are.
    An express contract is not necessary upon every detail, but some covenants are implied from others that are expressed, when necessary to complete the evident intention of the parties. Oaks v. Oaks, 16 Ill. 107; see also Luman v. Gage, 37 Ill. 28; Walker et al. v. Tucker, 70 Ill. 542; Leavens v. Cleary, 75 Ill. 352.
    Mr. W. T. Whiting, for appellees.
    The lease contains no express covenant or agreement as to how the coal underlying the leased premises should be worked or that any specified amount of coal should, within a given time, be mined on the premises; but appellant contends that he can maintain this action to forfeit the lease, because appellees failed to mine coal on the premises before the time named in the lease, for the payment of “five cents per ton for all coal and minerals sold from the premises,” upon the ground that the covenants in the lease require lessees to proceed to mine coal on the premises before the first days of January or July, after the date of the lease. The question whether there ai’e such covenants in the lease depends, like other questions of the construction of contracts, upon the intentions of the parties. Ho precise words are necessary to constitute a covenant, provided we are able to collect an agreement by the parties that a certain thing shall be done, that will be sufficient to enable us to say that a covenant is created. But the court must be satisfied that the language does not merely show that the parties contemplated that the thing might be done, but it must amount to a binding agreement upon them that the thing shall be done. Smiley v. McLaughlin, 138 Mass. 363; James v. Cochrane, 7 Exch. 170, S. C., 8 Exch. 556.
    Where parties have entered into an agreement with express stipulations, the presumption is that they have expressed all the conditions by which they intend to be bound, and courts can not extend their covenants by implication, unless the implication is clear and undoubted. Smiley v. McLaughlin, 138 Mass. 365; Aspin v. Austin, 48 E. C. L. R. (5 Q. B.) 671; Rashleigh v. S. E. Ry., 70 E. C. L. R. (10 C. B.) 612.
    The proposition of law submitted by appellant to the trial court, as modified by the court, correctly stated the law governing this cause. The modified proposition is as follows:
    “Under the lease offered in evidence, it was the duty of lessees or their assigns therein to sink a shaft, or a slope or drift, upon or near the premises in controversy, within a reasonable time, and to endeavor in good faith in that way to mine coal from said premises, and a failure to use reasonable diligence in so doing would be a default in the terms of said lease.”
    The law of this case as above stated is sustained by the following authorities: Carl v. The Granger Coal Co., 69 Iowa, 519; Koch’s and Ballirt’s Appeal, 93 Pa. St. 434-441; Guth’s Appeal, 2 Cent. R. 767; Price et al. v. Nicholas, 4 Hughes, U. S. C. Ct. R. 616.
   Lacey, J.

There seems to be a wide difference between the counsel for the respective parties as to what is the proper construction of the contract. On the part of counsel for the appellant it is insisted that the proper construction of the contract is that the lessees absolutely bound themselves to pay royalty for the coal on the “ first day of January and July for each year ” and that the first payment was absolutely due on January following the contract. Hence, that required the mine to be open at least by the first of January following the date of the contract, otherwise no coal could be sold or rent paid. Furthermore that by the terms of the agreement the appellees were, bound to mine the coal from a shaft sunk on the land of King and occupy as much of the surface of the land as necessary for the necessary machinery for the mining and storing of said materials, for tramway and switches for transporting the same, for sinking shafts, for drifting or making slopes for said minerals.

On the other hand counsel for the appellees insist that there was no specified time when the mine should be open except that under all the circumstances it should be opened in a reasonable time. That there was no covenant on the part of the lessees that the mine should be opened on the land of appellant; that to do so was simply a privilege.

After the careful reading of the contract and all its parts we are inclined to adopt the view of the contract entertained by the counsel for appellees.

In our opinion the words contained in said lease, to wit, “ To pay the party of the first part as rent for said coal and minerals five cents per ton for all coal and minerals sold from said premises by the parties of the second part, said rent to be paid as follows, to wit: The first days of January and July of each year after the date of this lease,” simply mean to fix a day on which settlements for all such sums received for coal, etc., shall be made, and have no purpose to bind the lessees absolutely to mine coal before those days. It was a day fixed for settlement if before those days the lessees under the other terms of the contract had anything in their hands to settle for.

As to appellant’s other contention, that the mine was to be opened on his premises, we think him equally at fault. The granting part of the lease which gives the right to mine the coal makes no mention of the manner of mining it or where or how it shall be taken from the land. It simply provides in these words, the party of the first part “ has leased to the parties of the second part all the coal and minerals .underlying ” the premises in question. Then follows in the contract “in consideration of the above ” the rent stipulated for it to be paid. Without anything further in the lease it is probable that a covenant on the part of the party of the first part would be implied, giving the lessee the right to occupy so much of the land as was necessary to take the coal from under the ground, hut certainly he would not be compelled to go upon the land at all if he could get the coal without. All that follows in this lease after the granting clause above, is to give the appellees the privilege to open the mine on the land and carrying on the mining from the surface, using so much of the land as necessary for such purpose; but there is no covenant on the part of the lessee agreeing to avail himself of such privilege. The royalty for the coal is the only thing that appellant can be concerned about; when he has received that the lease as to him is satisfied so far as the covenant in question is concerned. There now only remains the question of the matter of fact as to whether or not the appellees were proceeding to open up the coal mine within a reasonable time. The judge in the court below trying the case in place of the jury, by agreement of the parties, found that the appellees were using due diligence in that regard. Unless we can see that the court found manifestly against the weight of the evidence this court has no power to disturb it. After a careful review of the evidence we can not find that it has. We are satisfied that the evidence supports the finding of the court. All the circumstances of the case had to be considered, such as 'the relative cost of the two methods of obtaining the coal, the time required to reach it, the convenience of obtaining and marketing it after it was received, the interests of appellees as well as the appellant in the premises. If a more definite time for the opening of the mine had been desired to be fixed it should have been provided for in the contract. In determining the matter of forfeiture the court below should, and no doubt did, take into consideration the law which holds that forfeitures are not favored, in fact are abhorred, and that a case to justify a forfeiture must be clear. We feel satisfied the court did not err in its finding of the fact in that particular.

It will appear from what has been said in this opinion as to the proper construction of the contract that the court did not err in its refusal and modification of appellant’s proposition of law asked to be held. The ruling of the court in that par-ti calar was correct. We find no error in the record and therefore the j udgment is affirmed.

Judgment affirmed.

C. B. Smith, J.,

dissents. I can not agree with the construction placed upon the contract of leasing by the majority of the court. By the construction placed upon the lease of the coal lands by the court, I think the manifest purpose and plainly expressed object of the lease is defeated. In the face of the expressed language, that the lessee shall mine and pay for coal on certain days at a certain rate, he is relieved from mining coal at all, except as his convenience at some future time may permit. Instead of sinking a shaft on appellant’s land, as is clearly contemplated by the lease, appellee disclaims any purpose to do so at any time within the life of the lease, but claims the right to mine coal through a tunnel and shaft under other lands, and alter the coal under other lands has been mined. The mere argument of convenience is set up as a bar to the plain requirements of this lease. I know of no rule of law that will justify that construction to defeat the plainly expressed covenant of this lease. I think the judgment ought to be reversed.


source: Caselaw Access Project

author: Upton, P. J.

license: Public Domain

text:
    Benjamin H. Warder et al. v. Franklin D. Sweetser.

      Partnership—Members—Individual Debts of—Payment—Firm Funds —Set-off.

    Upon a bill filed by a member of a firm calling, among other things, for an itemized statement of payments made with partnership funds, by a defaulting co-partner, to liquidate private debts due manufacturers with whom such firm habitually dealt, suit having been brought by them against the firm to recover a balance due and unpaid, and that such payments be applied in satisfaction of the firm indebtedness, this court holds, that the promise of complainant to assume such payments was conditional, not absolute, and declines to interfere with the decree in his behalf.

      [Opinion filed December 16, 1889.]
    In error to the Circuit Court of La Salle County; the Hon. Dorance Dibell, Judge, presiding.
    Messrs. Boyesen & Lawrence, for plaintiffs in error.
    Mr. D. B. Show, for defendant in error.
   Upton, P. J.

Prior to January 8, 1886, Franklin D. Sweetser was engaged in business at Ottawa, Ill., in the sale of agricultural implements; his half brother, J. Howard Sweetser, was engaged in the like business at Streator, Ill. The plaintiffs in error were then, and long prior thereto had been, engaged in the manufacture and sale of agricultural implements and machinery, having a place of business at Chicago and having prior to the time above indicated had dealings with both Franklin D. and J. Howard Sweetser, in the business above indicated.

At the time above stated J. Howard Sweetser was indebted to plaintiffs in error about §1,200 or more, of which Franklin D. was not informed. Franklin D. Sweetser being at the time in poor health and requiring rest, entered into the following contract. . .

“ This contract made and entered into between F. D. Sweetser and J. H. Sweetser this 8th day of January, 1886. ‘Whereas’ F. D. Sweetser has an interest in the agricultural implements, seed and sewing machine business of §12,000 (twelve thousand dollars), J. H. Sweetser to take the business and run the same, in consideration of which, said J. H. Sweetser is to pay said F. D. Sweetser the interest on the above §12,000, at the rate of six per cent, per annum, payable quarterly, in payments due and payable each year, of seven hundred and twenty dollars (§720). \
“ This contract is to run one year, or more, as the contracting parties can agree ; and if F. D. Sweetser at some future time take the ‘concern’ back to his possession, the said F. D. Sweetser to allow said J. H. Sweetser the actual cash value of the ‘goods’ on hand, or what they can be bought for in cash, at time of settlement, ‘ freight to be added.’ Also, said F. D. Sweetser is to allow said J. PI. Sweetser the cash value of notes and accounts at time of settlement.
“It is also agreed that the ‘ concern ’ shall be known as F. D. Sweetser & Co., until the final settlement and ending of this contract. The goods to be kept insured by said J. H. Sweetser during the continuation of this contract.
“ F. D. Sweetser further agrees to guarantee to J. H. Sweetser a yearly profit to him of $600 (six hundred dollars). J. H. Sweetser agreeing to put his whole time to said business.
“ Witness our hands and seals this day above mentioned.
“ F. D. Sweetser.
“ J. H. Sweetser.”

Under this contract J. Howard Sweetser took possession of the goods and store in Ottawa, Franklin D. Sweetser going east, and the business was conducted by J. Howard Sweetser until August, 1886, when the partnership was dissolved.

At the time of F. D. Sweetser’s leaving Ottawa for the east, he left in his iron safe in the store (to which J. Howard Sweetser had access for the business of said firm) his personal private papers, promissory notes and books of accounts.

Upon the return of F. D. Sweetser as hereinafter stated, by the wrongful, improper and unauthorized use of moneys of the firm and by the like improper and unauthorized use of the private notes and bills receivable belonging to Franklin D. in his own right, Howard Sweetser was indebted to him for more than $5,000.

Prior to the 8th of January, 1886, J. Howard Sweetser was personally indebted to the plaintiffs in error in a sum exceeding $1,000, as security for which (and payment as collected), he delivered farmers’ notes of the face value of $1,200, of which he guaranteed the payment. These notes were afterward ascertained by plaintiffs in error to have been fictitious or forgeries, of which transaction, either in whole or in part, Franklin D. Sweetser was not apprised. On the 20th day of January, 1886, after Franklin D. had left for the east, plaintiffs in error applied to J. Howard Sweetser to take up the notes held by them against him and those held as security therefor, or, knowing the worthlessness thereof, had succeeded in obtaining from him §200 in cash, and other notes made payable and belonging to the firm of “F. D. Sweetser & Co.,” together with a note pa;vable to “ C. Anltman & Co.,” belonging to the defendant in error in his own right, which had been wrongfully taken from the private papers of defendant in error from the safe wherein the same had been left for safe keeping as before stated, amounting in the aggregate to about $700, together with a note for $250 executed by J. Howard Sweetser in the name of the firm.

Upon these notes so held by them, plaintiffs in error collected $742.60 and applied the same in satisfaction of their debt against J. Howard Sweetser individually, and without the knowledge, authority or consent of the defendant in error, as found by the court below.

The firm of “ F. D. Sweetser & Co.,” subsequent’to January 20, 1886, became indebted to plaintiffs in error for goods and wares purchased by J. Howard Sweetser in the sum of $697, upon which indebtedness a suit was commenced at law in the Circuit Court of La Salle County, and upon issue being joined therein, this bill was filed in equity, alleging, in substance, the matters herein before stated, and asking that the itemized statement of plaintiffs in errors’ claims and demands be made and set forth and discovery made of all moneys paid theim and of all notes received in security for, or in satisfaction of such indebtedness, together with all moneys received thereon, or applied in satisfaction of the individual indebtedness of J. H. Sweetser by said plaintiffs in error, and that such sum so received be applied in satisfaction of any indebtedness due from the firm of F. D. Sweetser & Co., if any, to plaintiffs in error, and averred the total insolvency of J. Howard Sweetser. The bill was afterward amended but its scope was not materially changed. The prayer was for an accounting, set-off and general relief. Plaintiffs in error filed their answer, and after the Cause was at issue the following stipulation was filed in the cause: 48. “ It is hereby stipulated, by and between the attorneys for the respective parties hereto, that this cause shall be submitted to the court for trial at the present term of the Circuit Court of La Salle County, and shall be set down for trial and heard as speedily as the court will set the same for a hearing; that if, upon the hearing of said cause, the court shall be of opinion that it has no jurisdiction to hear the same as a chancery suit, and that equity has no jurisdiction of said cause, then said cause shall be deemed and considered as having been tried and heard by the court upon the issues in the suit at law now pending in said court, and such judgment shall be rendered in such suit at law as the conclusion or opinion of the court may justify, and as it would have rendered if the same had been submitted to it upon the issues formed in the suit at law. If the court shall find that the defendants in this suit are indebted to complainants, then a judgment or decree may be rendered for complainants, the same as on the plea of set-off in the common law case. And if the court shall be of opinion that said suit is properly heard as a cause in equity, then a decree shall be rendered if the finding is for the defendants, on the merits, the same as if a cross-bill had been filed in said suit.

A hearing was had which resulted in a decree for defendant in error for the sum of $255, and the cause is here by writ of error, errors and cross-errors being assigned upon the record.

As to the 1st, 2d, 3d and 4th assignments of errors we need only say that our attention has not been called by the arguments or suggestions of either counsel, to any matter presented by the record before us, to sustain or support the san.e, and we conclude there are none, and that the same are not well taken. As to the 5th and 6th, which are, in substance, that the decree entered below was erroneous because not supported by the testimony in the case, and is broader than the facts justify, we do not think are well taken.

In this contention, counsel for plaintiffs in error lays stress upon what he seems to regard as a ratification by Franklin D. Sweetser, of the acts of J. Howard Sweetser, in his dealings with plaintiffs in error, in the use of co-partnership assets in liquidation and payment of his personal indebtedness.

This is largely a question of fact. The chancellor, no less certainly than a jury, is the sole judge of the credibility of the witnesses. They are before him, and he, far better than any appellate tribunal, can rightfully determine where the truth is, upon the questions in issue; besides, we are entirely satisfied from the facts and circumstances in evidence, apparent of record, that the chancellor was fully justified in the holding upon that point, both on the facts and the law, and we do not deem it necessary to go over the evidence in detail in that regard. The contention was simply whether the promise was a conditional one, or unconditional. In this the court held it conditional and we are entirely satisfied, on the facts in this record, with that finding.

Another consideration is urged by the counsel for the plaintiffs in error—that the defendant in error had credited J. Howard Sweetser with but $300 for the entire property transferred to him by the bill of sale, invoiced at some $900. We are entirely satisfied that, as shown by the evidence in this record, $300 was the full cash value of the property, and we should have been quite satisfied if the court below had entirely ignored that item in this adjustment, and regarded the same as applied to the general indebtedness due from J. Howard Sweetser to the defendant in error, of which there is a large sum, as shown; first, because we think there are in this record evidence and circumstances tending strongly to support that view, and second, F. D. Sweetser was under no legal or moral obligation to pay the debts of J. H. Sweetser; but the court took a different view, and while we can not say he was not justified in so holding, we think plaintiffs in error can not be heard to complain.

It is further urged that the books of F. D. Sweetser & Co. and the entries therein establish the fact of the adoption of the transaction between J. Howard Sweetser and the plaintiffs in error .as to the payment of the individual debts of J. Howard Sweetser with the assets of the firm of F. D. Sweetser & Co., and he should be held estopped .from denying it, etc. It will be borne in mind that the evidence shows that F. D. Sweetser had not been in Ottawa, where his business was carried on, and knew nothing concerning the transfer of the notes in question until the 29th of July, 1886, when he immediately started home; passing through Chicago, he called" upon plaintiffs in error, informed them that the notes held by them for the indebtedness of J. Howard Sweetser were the assets of the firm of F. D. S. & Co., and improperly and illegally transferred to them by J. H. Sweetser, but that, if he found that J. H. Sweetser had not got him in exceeding a certain amount, naming it, that he would “father” the transaction.

He had not at that time any means of knowing what the condition of affairs actually was. In that endeavor certain memorandum entries, as he swears, were made upon the books, not by F. D. Sweetser, but by J. H. Sweetser, which there is no evidence showing plaintiffs in error knew of, or were in the least influenced by in these memorandum entries, upon which an estoppel is sought to be predicated.

It is true J. Howard Sweetser swears that those entries were made by himself at the direction of F. D. Sweetser. This is positively denied by defendant in error, and we are not prepared to say that in view of what appears in this record the court below was not fully justified in disregarding the statement of J. H. Sweetser, in that regard at least.

We have carefully examined the record in this case, in the light of the able argument submitted to us for plaintiffs in error, and we And no error therein of which the plaintiffs in error can complain. In regard to the cross-errors assigned by the defendant in error, we have only to say, we do not deem either point made, well taken.

The $219 cash paid to plaintiffs in error by J. Howard Sweetser is not sufficiently shown by the proof to have been the moneys of the defendant in error, to warrant its allowance; and as to the $300 for the value of the property in the bill of sale from J. H. to F. D. Sweetser, we have already expressed our views, and the decree made by the court being in our judgment substantially correct, is affirmed.

Decree affirmed.


author: Lacey, J.

text:
    Chicago & Eastern Illinois Railroad Company v. Antoine Goyette.

      Railroads — Fire—Weeds — Locomotive — Damages — Declaration— Amendment—Continuance—General Verdict—Special Findings—Instructions.

    1. An application for a continuance, made upon the amendment of the declaration, may be properly overruled, where the affida.it in support thereof is admitted in evidence by the plaintiff in accordance with the statute, and it does not appear that the defendant could have reasonably been prejudiced in his defense by the amendment.
    2. All parts of a verdict are to be so reconciled, if it can reasonably be done, as to support the general verdict.
    3. In an action against a railroad company to recover for loss by fire, alleged to have been set by one of its locomotives, this court holds that a special finding of the jury setting forth that there was not sufficient proof to enable it to find at which of two places charged, the fire originated, was not inconsistent with a general verdict against the defendant, and constitutes no ground for setting aside the same.
    4. The omission of the word “ dangerous before the word “ combustible ” from an instruction upon the duty of the railroad company to keep its right of way clear of dry weeds and' combustible material, etc., did not in the case presented constitute reversible error.
    5. It is proper to strike out of the instructions of a defendant in an action of this character such portion thereof as pretends, but fails, to cover the ground, touching the means and methods a railroad company is bound to adopt for the prevention of damages by fire from locomotives.
    6. The appliances in such cases must be the most approved, they must be kept in the best of running order, and the methods and manner of running and handling the engines must be free from negligence on the part of those in charge.
    [Opinion filed December 16, 1889.]
    In error to the Circuit Court of Kankakee County; the Hon. H. J. Pillsbury, Judge, presiding.
    Mr. W. H. Lyford, for plaintiff in error.
    Mr. C. R. Starr, for defendant in error.
   Lacey, J.

This was an action in case brought by the defendant in error against the plaintiff in error, to recover for loss occasioned by fire, to his buildings, grain, meadow and other personal property, which fire was alleged to have escaped from the locomotive engine of plaintiff in error, by negligence, while operating its railroad. The declaration consists of two counts: first, it charges negligence on the part of the plaintiff in error in not keeping its right of way free from dead grass, dry weeds and other combustible material, etc., by means whereof fire was emitted and thrown from a certain locomotive, and ignited the said grass and weeds and Avas spread, and Avas communicated over, and by the same, to and upon said lands of the defendant in error, and his property burned, etc.

The second count charges the negligence to consist in the negligence of plaintiff in error in allowing the fire to escape and be thrown from its locomotive, by Avhich it fell upon defendant in error’s lands, outside of the right of way, and ignited the dry grass and weeds, from Avhich tire was communicated to the defendant in error’s property, etc., and damages Avere sustained. The cause was tried by the court and a jury, and resulted in a verdict for plaintiff in error, for §1,385, and after overruling plaintiff in error’s motion for a neAV trial, the court rendered judgment in favor of the defendant in error for the amount of the verdict.

Several grounds for error are assigned which Ave will now proceed to notice. The first is, that the court committed error in not allowing to plaintiff in error a continuance upon its affidavit, after the amendment of the declaration. We do not think this ground is at all well taken for apparent reasons.

First, the decoration was only changed by the striking out of it the claim for burning “a barn” and inserting “one shed on east side of barn, 14x40 feet, and pig-shed 8x16 feet.” The barn had been insured by defendant in error before the shed on the east side was built, and after the fire, was paid for by the insurance company, and the claim assigned to it, and only the shed part was sought to be recovered for in this action, and bythe amendment the charge was limited to this.

The affidavit for a continuance is set out in the abstract, and shows that the plaintiff in error had no notice that defendant in error had any such sheds; it had no witnesses in attendance, or that could be brought there at that term of court, to give evidence as to whether they were burned or not, or their value; that by the surprise by the amendment of the declaration it was unprepared to proceed to the trial of said cause at that term of court, and that the affiant believed that if the cause was continued the plaintiff in error would be able to procure evidence before the next term of court; that defendant in error was entitled to no damages by reason of the said alleged burning of said sheds, mentioned in said amendment. The attorney for defendant agreed to admit the said affidavit in evidence under the statute, and the court overruled a motion for continuance.

We think in this there was no error. It is true that under the common law, as it was interpreted in this State prior to the passage of the present statute, on the subject of continuances, it was conclusively presumed that the defendant in any suit was surprised and was unprepared for trial whenever the declaration was amended in any material particular, and the cause had to be continued, if the defendant desired it, at the plaintiff’s costs. But our present statute has wisely changed this most absurd rule of the commonlaw, and refuses to allow a continuance except good cause is shown therefor by affidavit as in ordinary cases. Of course the amendment and its nature should be. taken into account by the court on the question of diligence on the part of the defendant offered in excuse for not having his witnesses or other evidence present.

In this case it is very doubtful whether, under the rule of the common law, prior to the statute there was any material amendment made to the declaration. The barn, according to the original declaration, would naturally embrace the two sheds claimed for, and if so, the amendment of the declaration as to the sheds does not change it, in c'aiming for the sheds only, as they were claimed for in the original declaration under the general term, barn. The fact that a portion of the property claimed for in the declaration was withdrawn, would not be a change of the declaration as to that not withdrawn. The lesser is included in the greater.

But the court allowed the affidavit to be read in evidence, and if any error was committed it was not against plaintiff in error. There is nothing in the affidavit or the circumstances to show that the court abused its discretion in not allowing a continuance, if such continuance isclaimed outside of theprovisions of the statute, on equitable principles. Such application is always directed to the sound discretion of the court. The original declaration showed that the barn was claimed for as a whole, and the plaintiff in error should have prepared itself to contest the value of every part of it. We can not see how any actual surprise could come to plaintiff in error under the ciicumstances.

At plaintiff in error’s request the jury was required by the court and did find a number of special verdicts, and on the grounds of one of these findings it insists that it was the duty of the court below, as it was requested to do, to find in favor of plaintiff in error and give judgment against the defendant in error. This is one of the main points urged here for reversal. The proposition and special finding of the jury was as follows:

1. “ Did the fire in question in this case begin on the defendant’s right of way, or did it begin in the plaintiff’s property ? ” To this the jury returned the following answer: “ No proof of evidence.” This answer simply meant that there was no sufficient proof of evidence to enable it to find which of the two the fire commenced on. From the evidence the jury could not find which of the two places the fire originated on. The answer as given was not responsive to the proposition submitted, unless the above interpretation of the verdict is correct. But taking the proposition and the verdict together, which we must do in cases like this, the above interpretation is correct. The jury did not certainly intend to say by the verdict that there was “ no proof ” that the fire originated either on the right of way or the defendant in error’s land. This would have been to squarely contradict the general verdict, which, unless the case was clear, the court should not find. All parts of the verdict should be reconciled if it reasonably could be, so as to support the general verdict. The jury was unable to find and did not find whether the fire originated on the right of way of defendant in error’s land, but found that the fire originated on one of the two spots, which they must have done in view of the general verdict ; and then proceeded to find by the general verdict that the plaintiff in error was guilty in manner and form charged in the two counts of the declaration.

How it is manifest that if the other evidence in the case would support the verdict of the jury as to the plaintiff in error’s liability on each of the two counts, provided the fire originated as charged in each, then it is entirely immaterial as to which of the places charged in the declaration the jury found the fire originated, provided it found it originated in the one or the other. But the jury found that the fire originated on both, hence the verdict that there was no evidence—which must be taken to mean there was no more evidence as to the one than the other. We think that the evidence fully justified the jury in finding that dangerous, combustible material was allowed to remain on defendant’s right of way, and hence it would follow under the statute (Sec. 63, Chap. 114, 2 S. & C. Am. St. 1933), the plaintiff in error would be liable if the fire originated there.

There is more doubt in our minds under the first count of the declaration. In case of the fire originating outside the right of way on the defendant in error’s land, the evidence must, taken together, show that the plaintiff in error was someway negligent in allowing the fire to escape; either that the necessary spark arrester was not tit, that it was out of order, or the running of the engine was not properly done, or by some other carelessness the sparks escaped. The jury found by their special verdict, that the appliances for preventing the escape of sparks was not in good order at the time the fire escaped; now we think that the jury was justified in so finding. In the first place the statute provides, that in case of the setting of fire by a locomotive engine in running a railroad train, negligence shall be presumed jprima facie. Though, in order to rebut this presumption, the plaintiff in error produced evidence tending to show that the appliances for arresting sparks was the best, that it was in good order and well handled, yet the undisputed evidence was that engine 73, that set the fire in question as it approached the spot where the fire was set on defendant in error’s premises, set on fire nearly every farm through which it passed, for at least three miles, and in some instances in several places. 27ow we think that the jury was justified in finding, as against plaintiff in error’s evidence, that this engine was very unsafe at the time and badly out of order. As the fire either originated inside or outside the right of way, which the evidence overwhelmingly establishes, and as the evidence is fully sufficient to establish right to recover as to the other essential facts, we see no reason why the general verdict should be set aside on account of anything found in the first special verdict.

No difference where the jury had located the starting of the fire—the verdict should have been the same, provided it found the essential facts in each count in favor of defendant in error, which, under the peculiar circumstances of this case we are satisfied the jury did, and in fact, in order to support the verdict we are bound to so believe.

The jury especially found the other disputed facts under either count in favor of defendant in error; under the first, that the appliances for arresting sparks were out of repair when the fire was allowed to escape, and under the second, that the plaintiff in error allowed dangerous, combustible material to remain on the right of way at the time the fire was started; in other words, it “ was only partially cleared away.” The evidence was ample to sustain the verdict, and the point of plaintiff in error in that particular is not well taken.

The defendant in error’s instruction to the jury, that it was the duty of plaintiff in error to keep the right of way clear of dry weeds and combustible material, etc., and not inserting the word dangerous before the word combustible, as provided in the statute, we think, under the evidence and circumstances in this case, could not be harmful, and was not calculated to mislead. The evidence only shows dangerous, combustible material in the right of way, if any, and the jury found that the dead grass and dried weeds were only partially cleared off. The court did not err in striking out the following words from plaintiff in error’s instruction No. 10, as follows:

“If the defendant has proven by competent evidence that it used the best and most approved means and methods for preventing damages by fire from its locomotives, such proof is sufficient to overcome saidj■prima facie case of negligence” (as made by the statute in case the setting of fire is shown).

This is an attempt to induce the court to instruct the jury, that from the bare proof of certain facts that are not conclusive and do not cover the entire ground, the statutory prima facie case is overcome.

The instruction was drawn on the hypothesis that it was only necessary for a railroad to use the most approved means and methods for the prevention of damages by fire by locomotives. This alone was not sufficient. The means, that is, the appliances, must not only be the most approved, but must be kept in the best of running order, and the methods must not only be the most approved, but manner of running and handling the engines must be free from negligence on the part of those in charge.

It is seen, then, that the instructions, by omitting these essentials, entirely fail to cover the ground, and the court was correct in striking out this entire portion of the instruction.

Seeing no error in the record the judgment is affirmed.

Judgment affirmed-.


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    Jonas P. Magnusson v. John A. Charlson, Impleaded, etc.,

      Mortgages—Bill to Have Title Declared an Equitable Mortgage—Petition to Intervene—Reversal—Res Adjudicata— Evidence—Stipulation— Decree—Costs.

      1. The petition of a mortgagee, in a mortgage executed pendente lite by the complainant, in an action brought, to have defendant's title declared an equitable mortgage, the mortgagee being complainant’s solicitor, for the right to intervene, the petition having been filed after issues joined and the report of the master filed, was properly dismissed by the court below.
    2. Upon the reversal of a decree by this court and the remanding of the case to the court below without directions, it is only bound by the law as determined by this court, and as to such matters of fact, passed upon by this court, as were not changed upon the rehearing by additional evidence, and to that extent only can the case be said to be res adjudicata.

    3. It is unnecessary for this court to pass upon the admissibility of evidence admitted by the chancellor upon the hearing before him, a court of equity being presumed to determine cases upon competent evidence alone.
    4. In the case presented this court holds, that it was proper to require the complainant to pay into court within thirty days the amount found to be due to defendant; that the requirement was supported by the stipulation under which the accounting was had, and that as complainant was seeking to redeem from an alleged equitable mortgage he must be regarded in equity as bringing the amount due into court.
    5. The question of costs is largely in the discretion of the chancellor hearing the cause, and in the present case that discretion was properly exercised.
    [Opinion filed December 16, 1889.]
    In error to the Circuit Court of Bureau County; the Hon. Francis Goodspeed, Judge, presiding.
    Mr. William Davis, for plaintiff in error.
    Mr. A. R. Hook, for defendant in error.
   Upton, P. J.

On the 10th of June, 1874, the plaintiff in error filed his bill in equity against John A. Charlson, the defendant in error, and others, in the Circuit Court of Henry County, the scope and object of which was to have the court declare the title by which the defendant in error, Charlson, held eighty-six acres of land in that county and particularly described in the bill an equitable mortgage, with a prayer for leave to redeem, and for an accounting between himself and defendant in error Charlson, whom he alleged had long been in possession and receipt of the rents, issues and profits thereof. The original case was before this court at the May term, 1881, and was then given careful consideration, and many of the points now presented were then passed upon. For results then arrived at, and views then entertained, we refer to the opinion then filed, which will be found reported in 9 Ill. App. 194. A restatement further of the original case is therefore deemed unnecessary.

The decree then before us was reversed and the cause remanded. Upon being redocketed in the Circuit Court it was retried on the same evidence in substance, with additional evidence heard upon the retinal.

Upon redoclceting the suit in the Circuit Court the plaintiff in error by leave of court filed a supplemental bill in which he sets out the stipulation of August 31, 1874, which is recited in full in the opinion of this court in 9 Ill. App. supra, and states that before that stipulation was executed, Charlson, the defendant in error, claimed the eighty-six acres in question as his own, and that plaintiff in error claimed to be entitled to redeem, and to a conveyance from Charlson, and after setting out the order of reference in the original case, the master’s report, the interlocutory decree of 13th December, 1875, the final decree dismissing the bill, the appeal to this court, the reversal of the decree below in this court, and the remand of the cause to the Circuit Court, etc., claims that Charlson, defendant in error, was indebted to plaintiff in error for the rents of the lands in question from 1876 to 1881, inclusive, and which it is alleged defendant in error had received, and for the j'ears 1876 to 1882 inclusive, for what rent could and ought to have been obtained as rent therefor, but for wilful neglect of defendant in error asks an accounting therefor; and after averring the insolvency of defendant in error, alleges the intent of defendant in error to sell, transfer or mortgage the land in question to some one ignorant of rights of plaintiff in error thereto, or that he intends to pull down or destroy the buildings thereon standing, unless restrained by the court for so doing, and concludes with the averment that the defendant in error, Charlson, holds the legal title to the land in question as trustee for the plaintiff in error, in equity; that the equitable title is in the plaintiff in error, and that he is entitled to a deed thereof from Charlson. Prayer for an accounting for rents and profits and all matters in difference between defendant and plaintiff in error; that the land be conveyed to him—and for an injunction preventing incumbrances or waste, and for general relief, to which supplemental bill Charlson filed answer. Johnson and Stackhouse upon filing a disclaimer were dismissed from the suit; exceptions were then tiled to the answer of Charlson, which exceptions were overruled and exception taken thereto. Replication to the answer was filed and the cause was referred to Millchrist, a notary, as special commissioner, to take testimony for both parties and report the same to the court. The commission having taken the proof and filed the same in the court below, the master in chancery as directed therefrom stated an account between the parties, and filed the same, from which it appeared that there was due from the plaintiff in error, Magnusson, to the defendant in error, Charlson, on the 1st day of July, 1883, the sum of $1,478.01, to which report and finding of the master both plaintiff and defendant in error excepted, and filed their exceptions in writing in the court below at the December term, 1883.

On the 13th day of December, 1883, after the filing of the said report of the master, William Davis filed in the court below his petition for leave to intervene and inter-plead in this cause, claiming such right in his petition by virtue of a certain mortgage deed upon the land in question, made and executed by the plaintiff in error to the petitioner, William Davis, on December 1, 1881, to secure to Davis a note of even date with said mortgage for $2,()U0, and seeking to re-open and re-investigate matters already heard and determined in the suit, and claiming priority under such mortgage, to any decree to which the court below might render in favor of defendant in error, Charlson, on the report of the master then on file.

This mortgage to Davis was made and executed long after the stipulation of August 31, 1874, was entered of record in this suit, of wh'ch Davis, then acting as solicitor for plaintiff in error, as shown by the record, must have had notice, in which it was stipulated between plaintiff and defendant in error “That if in the accounting (contemplated by such stipulation) anything should be found due Charlson, such sum should be chargeable on the land,” etc. On motion of defendant in error filed in the court below, that court ordered the said petition stricken from its files, to which ruling Davis excepted, and brings his writ of error on the same record filed by the plaintiff in error in the case, and errors are assigned in that behalf.

The ruling of the court below in refusing to allow Davis to intervene, we think, was correct. Whatever rights Davis obtained by the deed of mortgage from plaintiff in error as against Charlson, were entirely dependent upon the result of the litigation then pending, in which Davis was acting as solicitor for plaintiff in error, and all evidence which could have been given in the case made by the petition for the right to interplead was admissible under the issues joined in the original suit, which had at the time of filing such petition been closed on both sides, and the report of the master filed, except it might have informed the court of the existence of the Davis mortgage.

Besides, whatever rights Davis acquired under the mortgage were certainly acquired pending the litigation as to Magnusson’s rights and interest in the land sought to be mortgaged, and if in that litigation it should be determined Magnusson had no rights or interest in the land, certainly Davis could acquire nothing by his mortgage. Of this litigation, its scope and consequences, Davis was fully apprised. In taking the mortgage “pendente lite" Davis was a mere volunteer, and in the case at bar had nothing to protect, for Magnusson had no interest in the land to convey by mortgage or otherwise. Durand v. Lord, 115 Ill. 614; Herrington v. McCollum, 73 Ill. 476, and cases therein cited.

On the 24th of March, 1884, on further hearing of the parties, the master in chancery made and filed an additional report as to receipts and expenditures by Charlson, itemized and filed in the court below, from which it was found that on the 21st of March, 1884, there was due and owing from the plaintiff in error, Magnusson, to defendant in error, Oharlson, $1,472.79, to which exceptions were filed and overruled, and exceptions taken; and on the 22d of March the reports of the master were by the court below approved and confirmed, and a final decree was entered in the cause, that the amount so found by the master on statement of accounts be paid by Magnusson, plaintiff in error, to defendant in error, Oharlson, with interest thereon at six per cent, or deposited with the clerk of the court subject to the order of Oharlson, within thirty days from that date, and in default thereof that the original and supplemental bills be dismissed, and that plaintiff in error pay all the costs of the suit. The case was brought to this court by writ of error, and is before us for review of the errors assigned upon the record.

The first point to which our attention is called is the contention of plaintiff in error that all matters involved in this litigation which occurred prior to the rendition of the former decree, 13th December, 1875, are “ res adjudicata.” We can not assent to that proposition. The case was reversed and remanded without directions, and the Circuit Court upon that remand was only bound by the law as there determined, and to such matters of fact as were not changed by additional evidence, and to that extent only. Chickering v. Failes, 29 Ill. 301; Cable v. Ellis, 120 Ill. 138; Quayle v. Guild, 91 Ill. 384.

It is further contended that the trial court erred in admitting Charlson’s “Exhibit A,” and in the overruling of motion to suppress his deposition. Eegarding the admissibility of evidence in a court of equity on hearing before the chancellor, little need be said further than this, that a court of equity determines the case only upon the competent evidence, and from that alone, and it is no more difficult to determine what is competent when admitted, than to determine the same thing upon rejection; besides, in the ease at bar, neither the exhibit nor the deposition could have changed the result.

The $150 allowed for money paid to Johnson for his share of the rent of 1872 was allowed on new evidence, and appears to us to be fully supported thereby. Charlson charged himself with the entire crop for that year. The §200 note given by Charlson to Johnson as difference in value between the two eighty-acre tracts of land, which Magnusson got the benefit of, was properly allowed, as we held before, and no new evidence has been taken on that point. The claim of Magnusson for §26 for broom-corn press was, as we think, properly rejected, as was intimated on the former liearing. The allowance upon the basis of actual receipts of rents and profits for the years 1875 to 1884 was correct, as was before held. The rent of 1884 should not be allowed; it was in evidence that the renting season commenced about March 1st, and only twenty days of that year had elapsed, and no rent had or could then have accrued. The expense account, aggregating §739.34, was the same as allowed when the case was here before, and, as we find no additional evidence in regard thereto to change the views then expressed, we think it was properly allowed.

The fact that Charlson stated, as claimed, that the one-half of this expense amount was his, being true, in no way disproves the claim that Charlson paid Johnson the same amount for his half of expenses.

There was allowed the plaintiff in error in the accounting all the receipts for rents and profits of the land in question, which Charlson. ever obtained in cash or crops, and if Johnson paid any part of the expenses Charlson had to account to him for what he so paid. Charlson got the entire crops and has fully accounted for the same, and we see no force in the suggestion made. The statute of limitations did not apply; it was a running account and in litigation.

The item of §14 on broom corn was correct and was properly allowed. The improvements charged were properly allowed as necessary and proper repairs. It was also proper to allow the §1,650, being the one-half part of the Price mortgage, and the interest thereon to February 1, 1867, according to the face of the note. Charlson was compelled to take up the note from the holder, by purchase or payment, to protect liis own title and interest, and he should be allowed for Avliat he actually paid in so doing, and interest according to the terms of the note Avhich he Avas thus compelled to purchase. Condict v. Flown, 106 Ill. 105.

We are of the opinion that the ansAver of Charlson to the supplemental bill wras sufficient, and that the exceptions thereto Avere properly overruled. It is absurd to say that Charlson paid the note secured by the Price mortgage and intended it as a gift to the plaintiff in error. The rejection of the lease and trust deed could make no difference, and Avere properly rejected; they proved nothing in the case in favor of the plaintiff in error.

it is contended, with great persistency, that the court below erred in requiring the amount found due from the plaintiff in error, 81,472.29, to be paid in thirty days, and seA-eral cases determined by the Supreme Court in this State have been pressed upon our attention as decisive upon this question, and most certainly are so, if applicable to the case before us.

In Magnusson v. Johnson, 73 Ill. 156, it Avas held that the same arrangement and transaction for Avliich this suit is brought, did not create the relation of mortgagor and mortgagee, and Avas not an equitable mortgage, and that Magnusson had no right to redeem, nor interest in the land under the contract.

It will be seen on examination of the stipulation of August 31, 1874, by virtue of which alone this accounting was had, that it was expressly provided, “ that in case it should be found on such accounting that anything is due from complainant (Magnusson) to Charlson, that in confirmation of such report of the master a decree be entered requiring complainant to pay the amount so found due on a day named by the court, and on default of such payment that the complainant’s (Magnusson’s) bill be dismissed,” etc., and that the complainant be “forever barred,” etc. Besides, as to Magnnsson he certainly ought not to be heard to complain of the time given in the decree for the payment of the account there found due, as he Avas seeking by this proceeding to redeem the land from a claimed equitable mortgage, and consequently must be regarded in equity as bringing the amount which should be so found due into court, and tendering the same when so ascertained. Therefore, as to him, no length of time need be given.

The decree was in strict accord with the spirit and meaning of the stipulation. At the time of its rendition the Supreme Court had expressly determined that Magnusson had no right of redemption as mortgagor or interest otherwise in the land in question. It surely can not be contended that the stipulation gave to Magnusson any right to or interest in the land he did not before possess, for the stipulation expressly provides that all questions relating to the title to the land are excepted from its operation.

It is conceded the' law is, in this State, that decrees in chancery directing the sale of real estate for the non-payment of money should give at least ninety days (in analogy to the return day of an execution to law) for the payment, in cases when there is no right of redemption from such sale, as in cases of strict foreclosure or bills to redeem. All the cases cited by plaintiff in error go to that extent and that only. What analogy exists between the class of cases cited and the one at bar, we are unable to perceive.

The predicate of the cases cited is, and its application is limited to that class of cases, where a party would be cast in his estate by a sale, by operation of law. In the case at bar not only is there no sale of the estate, but at the time of the rendition of the decree below there was no estate of the plaintiff in error to sell, either legal or equitable, in the premises in controversy. It is true that at the time of the making the stipulation of Aug. 31, 1874, it was contemplated that plaintiff in error, Magnusson, might have some interest therein; and to determine that question a suit was then pending in the Supreme Court (Magnusson v. Johnson, supra) which was decided adverse to the plaintiff in error, Magnusson) some time after making the stipulation. Hence, both parties in view of these facts, expressly stipulated that the question of Magnusson’s rights or title to this land should in no manner be inquired into or involved in the suit at bar.

We think, therefore, that the court below committed no error upon that point. It is further insisted that the court below erred in requiring Magnusson to pay all the costs incurred in the case. The question of costs is so largely within the discretion of the chancellor hearing the cause that Ap" pellate Courts rarely interfere under our practice, and after a careful examination of this entire record we are unable to say that this discretion has not been properly exercised in this regard and that the ruling was correct.

We find no error in this record which, in our judgment, should justify us in interfering with the decree entered therein and that decree is affirmed.

Decree affirmed.


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    James H. Johnston v. Nelson Fletcher, Conservator, etc.

      Trusts—Conservator—Insane Person—Dealings with Trust Property —Purchase of Outstanding Title.

    Moneys advanced by a trustee to purchase an outstanding title of property in which the cestui gue trust has an equitable interest, will be treated in equity as so much advanced for the benefit of the cestui gue trust, the trustee having a lien on the property until reimbursed for the advancement, and be must account for all profits arising out of the transaction.
    [Opinion filed December 16, 1889.]
    In error to the Circuit Court of Carroll County; the Hon. John D. Crabtree, Judge, presiding.
    This was a bill in chancery, filed in the Circuit Court of Carroll County, to the March term thereof, A. D. 1886, by Nelson Fletcher, as conservator of one Robert Groom, against James H. Johnston, plaintiff in error.
    The bill alleges that James H. Johnston, the plaintiff in error, defendant therein, was on or about the 7th day of July, 1880, duly appointed conservator of the person and estate of Robert Groom by the County Court of Carroll County, a jury in that court having declared that Croom was an insane-person, unfit to have the management of his own property and affairs; that Johnston gave bonds, took the oath required and entered upon the discharge of his duties as such conservator, and remained conservator of that estate until the October term, A. D. 1885, of the Carroll County Court, when he was removed. That the complainant, Nelson Fletcher, was appointed conservator of that estate on or about the 22d day of July, 1886, as successor to James H. Johnston, and qualified and entered upon his duties as conservator of the estate.
    That at the time defendant, Johnston, was appointed conservator of the estate of Robert Croom, Croom was in possession of the northeast quarter of the northwest quarter of section thirty-four (34), in township twenty-three (23), range five (5), east of the 4th P. JL, in Carroll county, claiming an equitable interest therein and title thereto; that a suit was then pending in the Circuit Court of Carroll County, on the chancery side thereof, in the name and on the behalf of said Robert Croom, to set aside sundry conveyances of the land above described, on the ground of fraud and circumvention practiced upon him by one Orr F. Woodruff, in obtaining a certain mortgage for $500, out of which arose the subsequent conveyances of the land. That such suit was proceeding to a hearing and trial with a good prospect of overthrowing the Woodruff mortgage and all titles which had accrued and grown out of the same in the various assignees and grantees of Orr F. Woodruff; that instead of contesting that suit on behalf of his ward (Robert Croom), James H. Johnston, with full knowledge and notice of all the irregularities and frauds practiced by the defendants in the above mentioned suits to wrong, cheat and defraud Croom out of the land, and having been active in advising said Croom to commence that suit, suddenly paid R. S. Ely, who claimed to have the title of that land (and one of the defendants in the suit), the sum of $700 in full settlement and compromise of all matters involved in the suit and took to himself an absolute title to the land by a proper conveyance duly recorded.

      Complainant charges that the 8700 which the defendant paid to said Ely was considerably less than the actual value of the land at that time; that Ely sold the land for that price partly because of the relation he, Johnston, sustained to Groom, and for a further consideration that the defendant, as conservator of Groom, would dismiss the above mentioned suit, which was dismissed accordingly; that the conveyance of the land to Johnston was on or about the 5th day of January, A. D. 1881, and soon thereafter the defendant took possession of the land and received the rents and profits of the sanje for four consecutive years, and on or about the 18th day of February, 1885, sold and conveyed the land to one Samuel Sennefi for the sum of 81,560; and although in procuring the land and title thereto from Ely, he used his own money to pay the consideration of 8700, he is chargeable with and ought to account as conservator and trustee of the estate of Robert Groom not only for the rents and profits of the land while in his possession, but for the amount received for the sale of the land, less the money and interest which he invested in it, and reasonable expenses and compensation for his trouble. That Johnston has never paid any of the rents or profits arising from the use, occupancy or sale of the land to the orator or to the estate of Robert Groom, or to any one else, but to wrong, cheat and defraud the estate claims that he bought it in his own right and refuses to account for the same, etc.; prays that an account may be taken of what is now due and owing from Johnston to the estate of Robert Groom, on the sale of the land, and that an account may also be taken of the rents and profits received by the defendant, or by any other person in his behalf, or which, without his wilful neglect, might have been received by him since he entered into the possession of the premises, and that he be compelled to pay over the same, etc., and for general relief.
    To this bill, the defendant, James H. Johnston, filed his answer, admitting his appointment and that acting as such conservator he purchased the land in the bill described for the sum of $700 and obtained title to himself, as charged; admitting that the value of the land at the time of' such purchase was considerable more than the price paid by him therefor, but insisting that as he purchased in his own right and paid his own money he should be protected, etc.
    He further admits his knowledge of the pendency of the chancery suit regarding the.title to the land of Groom at the time of his appointment as such conservator, and the nature, object and purpose of said bill; that answer was filed thereto; that at the next term of the court in which such proceedings were pending after the purchase of his ward’s land by Johnston, the said bill was dismissed; admits that he sold this land to Senneff for $1,560, as charged in the bill, but denies substantially the other charges therein.
    To this answer a replication being filed, the cause was heard on the bill, answer, replication and proofs taken and heard before the chancellor, and an interlocutory decree entered in which the court finds that the title to the land in the bill described was held by James H. Johnston, as trustee for Robt. Groom, for whom he was then acting as conservator, and that whatever profits he derived from the rents, issues and profits thereof and the moneys received from the subsequent sale thereof, as charged in the bill, belonged in equity to Robert Groom, his ward, and that the allegations in the bill were true in substance and effect, and ordered the cause to be referred to the master in chancery to take an account, of what was equitably due and owing from the defendant, James H. Johnston, to the complainant. In stating such account the master was directed to charge Johnston with the rents and profits received by him during the time said land was in his possession and control, and with the amount he received upon the sale of said lands from Senneff, $1,560, and that the master credit Johnston with the $700 which he paid for the title, and with all taxes paid out of his own means while he was in possession of the land, as well as attorney’s fees and expenses paid by the defendant of his own means upon the chancery suit, which he, as conservator of Robt. Groom, dismissed out of court in January, 1881, and for prosecuting the suit against Joseph T. Bell, to set aside the tax title on the lands of Groom, his ward. That the master in stating the account compute interest at six per cent per annum upon all items which enter into such account on both sides from the date of payment or the receipt of money to the first day of the then next ensuing term of the said Carroll County Circuit Court, as shown by the testimony taken or to be taken; that either party have leave to offer further testimony as to any and all items of payments or receipts which properly enter into such statement of accounts, and also what would be a reasonable sum to be paid for defendant’s services, etc.
    Pursuant to this interlocutory decree, the master, to whom the cause was referred on the first day of the next ensuing term of that court, being the 19th day of November, A. D. 1888, in strict pursuance of the directions contained in the interlocutory decree, made and filed in court an account stated and itemized between the parties, together with the additional proofs taken and heard before him, and the stipulations and agreements of the parties, in which the master found to be due and owing from James H. Johnston, as such former conservator of Robert Groom, to ¡Nelson Fletcher, the present conservator of said Groom, as such conservator, the sum of $816.57, which report and the findings of the master the court fully approved and confirmed, and on the 30tli day of November, 1888, entered a final decree therein, directing the payment of the sum so found to be due by Johnston, within thirty days from the date of that decree, with interest thereon at six per cent therefrom until paid, and that Johnston pay all the costs of the proceeding and suit, and in default that complainant have execution therefor. To which final and interlocutory decrees Johnston, defendant, excepted, and the case is now brought to this court by a writ of error, and errors are assigned upon the record.
    Mr. James M. Hunter, for plaintiff in error.
    Mr. C. B. Smith, for defendant in error.
   Upton, P. J.

The allegations of the bill are fully sustained by the evidence in every particular, and in addition thereto the evidence shows that oh the next day after Johnston obtained a deed of the land from Ely, Johnston went to the county seat and dismissed the chancery proceeding set out in the bill of complaint without consultation with the solicitors who were conducting the suit in the interest of Groom.

It seems that Groom was residing upon this land in the year 1881, with his family, and his cows, horses, hogs, and having other personal estate with which he was supporting his family comfortably, keeping them together. But as soon as Johnston got fairly invested with the title to the land he proceeds to take possession of all Groom’s personal estate, even the hog which was then being prepared for the family use for food; sells the same at public auction, scatters the Groom family, and notwithstanding Johnston admits that the land was worth much more than what he paid to redeem it, at least $700 or $800 more, and the personal property sold at auction was appraised and estimated as to the value of some $562.50, all of which Johnston had in his hands and possession, he removed the old man Groom to the county poor house as a pauper. There does not appear to have been the slightest necessity or excuse even, for this heartless conduct. A more culpable and apparently fraudulent transaction can scarcely be imagined, than is shown by the facts in this record. The law is too well established and settled to require note or comment, further than to say, that trustees are never allowed to deal in the property intrusted to their care, or to make a profit therefrom. Whatever use is made of it by the trustee, if profit is derived, it is for the benefit of the beneficiary, and the trustee must account for it, no matter what form the transaction may assume.

While the trust continues unperformed, the trustee will not be permitted to purchase the property as a stranger might do, and in the dealings of the trustee with the property held in trust the burden rests upon the trustee to show the fairness of such dealings. Moneys advanced by a trustee to purchase in an outstanding title, will be treated in equity as so much advanced for the benefit of the beneficiary, and not for the benefit of the trustee, giving the trustee a lien on the property until reimbursed for the advancement. Ward v. Armstrong, 84 Ill. 151; King v. Cushman, 41 Ill. 31.

The decree of the court belpw was eminently just and proper1, and could not upon any principle of justice and equity have been different, and it is affirmed in this court.

Deoree affirmed.


author: C. B. Smith, J.

text:
    F. S. Murphy v. Matthias Loos.

      Costs—Taxation of—Mandate of Supreme Court—Construction—Discretion-Personal Reflections in Argument upon Party to Suit.

    Where the Supreme Court reverses a decree of the Circuit Court, and the judgment of this court, affirming the same, and remands the case with instructions as to the decree to be entered, but the mandate is silent as to costs, it will be presumed that the Supreme Court intended the chancellor to exercise his discretion therein.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Knox County; the Hon. S. S. Page, Judge, presiding.
    Mr. F. S. Murphy, pro se.

    Mr. A. M. Brown, for appellee.
    The costs are in the discretion of the court. Field v. Openstein, 93 Ill. 68; Morrison v. Morrison, 11 Ill. App. 605.
    And the discretion ordinarily will not be interfered with or reviewed. Askew v. Springer, 111 Ill. 662; Moore v. The People, 108 Ill. 484; Howe v. Hutchinson, 105 Ill. 501.
   C. B. Smith, J.

This is an appeal from the Circuit Court of Knox County, calling in question a decree of that court upon the single question of the taxation of costs. This suit has been pending in the various courts for a number of years. It was first tried in the Circuit Court, and appealed from there by appellant to the Appellate Court of the Second District, and the decree of the Circuit Court there affirmed, and was again appealed from there to the Supreme Court by appellant, where the judgments of the Circuit and Appellate Courts were reversed, and a modified decree directed to be entered by the Circuit Court. The case is reported in Murphy v. Loos, 104 Ill. 514, where a full statement of the facts will be found, which are not important to be recited here in order to a correct understanding of this controversy. It appears the original decree of the Circuit Court, among other things, requires Murphy to pay all the costs.

The Supreme Court, in its opinion in deciding the case on appeal, among other things, used this language: “ The decree of the Circuit Court is, in our judgment, right in all respects except in the amount of money Murphy is required to pay Loos, and except as to costs.”

The court then directs what the decree below shall be in respect to what Murphy shall be required to pay Loos, but gives the court no direction as to whom it shall tax the costs, nor makes any further reference to the taxation of costs, except as above stated in the opinion.

The case was remanded to the Circuit Court and then again heard, and a decree rendered according to the directions of the Supreme Court (or if not, no objections are made), except as it related to the taxation of costs, and in that respect appellant contends that the decree is not in compliance with the directions of the Supreme Court. The Circuit Court again taxed all the costs except about $4.50 to appellant, which aggregate about $125. Appellant complains of this part of the decree and brings the case here and insists on a reversal.

It will be observed that the Supreme Court makes no direct order, nor gives the Circuit Court any directions concerning the costs on a rehearing. At most that court expressed a dissatisfaction with the first decree upon that point. In its opinion, it directs the Circuit Court as to the nature of its future decree in respect to everything except the costs, which is left open. We must assume that if the Supreme Court had intended that the Circuit Court should relieve Murphy from the costs it would have said so, and that by its refusal or failure to make any direct order in that regard it intended to leave the Circuit Court free to exercise its discretion in that respect in conformity with the usual practice of courts of equity.

It is the well settled and uniform practice of the courts of this State to tax costs in all chancery cases according to their discretion and as justice and good conscience seem to require in each particular case, and this discretion will rarely be disturbed unless the court can see that the chancellor has abused his discretion, or has manifestly erred in its exercise, resulting in hardship or oppression to the party complaining. We are, therefore, of opinion that in the absence of a direct order from the Supreme Court, or what would be equivalent to such order to the Circuit Court, as to what disposition it should make concerning the costs, that the Supreme Court thereby intended the Circuit Court to exercise its discretion upon that question. This view is much strengthened from the fact that the court gave specific directions as to all other parts of the decree. While we admit the question involved is not entirely free from doubt, yet we do not feel justified in reversing the decree without being fully satisfied that the decree is erroneous.

We would have been much better satisfied with the arguments of counsel for appellee, had all personal reflections and charges against appellant been omitted. They had no necessary place in the argument and could give no assistance in the decision of the question before us, which was simply to construe the order of the Supreme Court.

Personal assaults never add anything to the dignity, character or weight of an argument, nor add favor or weight to the cause of him that used them without necessity.

The decree of the Circuit Court is affirmed.

Decree affirmed.


text:
    Joliet Steel Company v. Benjamin Shields.
    ■ Master and Servant—Personal Injuries—Steel Works—Track Repairer "—Regligence of Servants—Fellow Servant—Special Findings—Pleading —Evidence—Instructions.

    1. The question whether one servant was the fellow servant of others in the employ of the same master, is for the jury.
    2. In an action brought by a servant to recover from his employer for the loss of a leg through the alleged negligence of other servants of his said employer, this court holds, that the declaration after issue joined sufficiently disclosed a cause of action; that plaintiff was not a fellow servant of those through whose negligence the accident occurred; that when injured he was in the exercise of ordinary care; that the instructions given for him were not seriously defective, and declines to interfere with the verdict in his behalf.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Will County; the Hon. C. Blanchard, Judge, presiding.
    Messrs. Garnsey & Knox, for appellant.
    Messrs. Haley & O’Donnell, for appellee.
   Upton, P. J.

This was an action brought by Benjamin Shields, appellee, against the Joliet Steel Works, appellant, to recover damages for the loss of a leg caused by the falling of a mold, in part filled with a steel ingot, called a “butt,” upon his leg, crushing it so that amputation below the knee followed, through the alleged negligence of the appellant’s servants. The injury occurred on the 9th of July, 1887, in the converting mill of the appellant corporation.

The works of the appellant company, which is a corporation duly organized, are quite extensive. Different departments of its business operations are carried on in different buildings situate some distance from each other. The yards of the corporation are traversed by a system of railroad tracks located principally in the yards of the corporation, a portion thereof entering and passing through some of its buildings, in extent measuring about eighteen miles of railway track.

The appellee alleges in his declaration that he was in the employ of the appellant company; that his business was that of a track repairer or foreman of the track-repairing hands or gang engaged in keeping the network of railway tracks in order; that a portion of the appellant’s works or mill was called a converter, wherein certain servants of the appellant were engaged in the handling of molds in the process of the manufacture of steel; that it was the duty of the appellant to place such molds in such a position that the same should not be dangerous to other servants of the appellant engaged in repairing the railway tracks within such converter, etc.; that the servants of appellant engaged in such converter so negligently and carelessly placed a certain mold, partly filled, called a “ butt,” that while appellee was engaged in the performance of his duty in repairing the railway tracks in such converter, etc., using due care, etc., such mold fell upon him and injured him, etc., causing the loss of his leg, etc. The plea was the general issue and joinder therein. The cause was submitted to a jury, who found the issues foxappellee and assessed his damages at $3,000, upon which, after overruling a motion for a new trial, the court below rendered judgment and from which appellant appeals to this court.

In the court below, at the instance of appellant, the jury made a special finding oxx the facts, to the effect that the appellee was not obliged to act in repairing the railway track in the appellant’s converter mill in connection with the employes or foreman of that department wherein such repairs were made; that in placing the “butt” mold which fell, the men employed in the converter mill did not place such mold in the usual and customary mannex-, nor use ordinary care in so placing it; that the mold was not tested to learn if it was liable to fall in the usual and ordinary way, and that the test which was made, was not such an one as an ordinarily prudent man carrying on the same business would have made under the same circumstances; that appellee’s attention was not called to the unsafe condition of the mold before he commenced work in repairing the railway track, nor could he have seen its condition as well as any other employe in the converter mill, had he examined it; that the mold did not fall by reason of the work that appellee or his gang of track repairers did about it. The following facts may be said to be conceded, at least are established by the evidence and are substantially uncontroverted.

The methods in the converting mill are these: At the north side of the building are the convertors in which the steel is made; in front of the converters is the semi-circular casting pit, which is perhaps about two feet below the level of the floor of the building; ranged around the pit, close to its edge, are the molds of iron, square in shape, from forty-two to seventy-two inches in height, tapering slightly from the top to bottom, opened at both ends, weighing from 1,800 to 2,400 pounds; they are placed on á “chair bottom,” or “sole,” which is slightly hollowed in the center, so that the bottom of the ingot is convex in shape; the mol ten steel is turned from the converter into a ladle and from the ladle is poured into each mold, until the set of eight molds is full; at times it happens that there is not enough metal to fill the last mold; this is called a “butt;” so soon as the metal has chilled enough in the mold to retain its shape, the molds are drawn off, leaving the ingots standing upright in the pit, and the molds are placed on one side to cool. At times the mold will not “strip” and the ingot sticks in them when hoisted by the crane; they are then raised and jarred—“ sledged ”—to get the ingot out; if it does not come, the mold and ingot are set one side, in front of the empty molds nearest the railroad track so that they maybe taken at once to the yard and broken up.

“Butts,” stick in the mold as well as full ingots, and this is a daily occurrence. After the molds are set off to cool they are usually tested by the men in charge to see if they will stand, by taking hold of them with a long iron hook and trying to pull them over. If they stand firmly they are considered safe; if they fall they are safe, of course.

At the east end of this converting mill is a rail bed (so called) about twenty feet square, composed of railroad iron, upon which the molds are set, and they are set at other places around the converter, the floor of which is sand. There are five narrow gauge tracks running into and through this converting mill, and the north track at the east side, being the one nearest this rail bed, needed repairs, and on Wednesday preceding the Saturday upon which the injury occurred appellee was directed to repair that track at the earliest possible moment, on the ensuing Saturday, if he could.

On that Saturday afternoon, when the last heat (or the last one but one) in that converter mill, on the east side of the pit, was taken off, and the molds swung to the rail bed to cool, in one of the molds was a “butt” from twenty to twenty-eight inches long which stuck in the bottom of the mold, and this was set on the sand floor in front of the rail bed nearest to the rail track which was directed to be repaired (for convenience in removing the same into the yard, if necessary, to be “ sledged ” or broken up).

This “butt” or mold was about eighteen inches square at the bottom, about sixty-two inches in height, would weigh about 2,000 pounds empty, and was easier to tip over when filled than when empty.

It was left standing on the sand floor, about two feet from the rail track which appellee was directed to repair. About a half hour after the mold was so placed, the workmen and the employes in the converter mill, having ceased work for the day and gone therefrom, appellee with his force of repairers came into the converter and proceeded to take up a rail on the track nearest this “butt” or mold, as required, and in so doing the mold fell upon his leg, inflicting the injury for which this suit is brought.

Appellant contends: 1st. That the declaration tiled in the case at bar does not state a cause of action. The declaration simply avers that the injury complained of was caused by the negligence of appellant’s servants, and avers, also, that appellee was a servant of appellant, but does not disclose whether the appellee and the other servants whose asserted negligent acts caused the injury complained of were fellow servants or co-servants, co-associated in such way as to exonerate the appellant from liability for such other servants’ negligent acts in case of damages caused thereby.

Ho demurrer was interposed to the declaration, but issue was taken thereon, and hence every intendment must be taken in favor of its sufficiency, especially after verdict.

We think the declaration after issue joined was sufficient to disclose a cause of action, if the evidence should show all the elements necessary to a recovery. The declaration avers a duty on the part of appellant, its neglect is stated, and an injury resulting from that neglect of duty is also averred. This in substance makes out a case. That appellee was not a fellow servant co-associated with him in such way as to exonerate appellant from liability for the negligent acts of its other servants, may reasonably be inferred, and especially after the special findings of the jury in their verdict rendered in this case before stated. Mechanicsburg v. Meredith, 54 Ill. 84; Smith v. Conway, 16 Ill. 147.

In this view the trial court did not err in refusing to exclude from the jury, on appellant’s motion, the evidence offered by the appellee in that court on the hearing.

The question whether the appellee was or was not a fellow servant with those engaged in the converter mill of appellant so as to render it liable for their negligent acts, as well as the question whether the evidence sustains that verdict, were questions of fact for the jury. C. & N. W. Ry. Co. v. Moranda, 108 Ill. 576; C. & E. Ill. R. R. Co. v. Geary, 110 Ill. 383; C. & A. Ry. Co. v. Kelly, 21 N. E. 203.

After a careful examination of that evidence, we are unable to say that the jury was not justified under the rules of law in rendering that verdict and the special findings thereof for the appellee.

The evidence does not disclose so clear a case of co-association in their employments between the appellee and the other employes of the appellant in the converter mill, whose negligence caused the injury complained of, as that we are alfie to say that the appellee failed to make out a case against the appellant. Indeed, we think the evidence justified the findings of the jury under the rules of law.

Complaint is also made of appellee’s instruction numbered two, given by the trial court.

We have examined that instruction with some care, and in our judgment it announces substantially the correct rule of law in this State upon the question of fellow servants. It contains the true hypothesis of association to create or avoid liability, upon the doctrine of respondeat superior, and states the rule firmly established in this State upon that subject, as laid down in the Mo randa, Geary and Kelly cases, above cited. The fact that this instruction refers to the appellee as belonging to a “gang of track laborers,” when he was in fact a foreman thereof, could make no difference. If the instruction was not as full as it might have been it was substantially the law, and with the very full and favorable instruction'given on the part of the appellant, we think the jury could not have been misled in their investigations or findings in this case. The other instructions given for the appellee, of which complaint is made, seem to have been framed upon the allegation of the second count of the declaration. These instructions also contain the legal and correct hypothesis of co-laborers in the same association, or fellow servants, in this State, as stated in the cases before referred to.

Upon a careful examination we think the evidence fairly shows that the appellee was in the exercise of ordinary care. He was not apprised in any manner of the fact that the standing mold contained an ingot or was a “ butt ” mold, which made it liable to fall over, and he had no reason to suspect that such was the fact, and in this used ordinary care. If the mold had been empty, under the evidence, it would not have fallen or occasioned the injury complained of. If it had been filled, appellee could have seen that it was so and have avoided the danger. The fact is fully established that an empty mold placed as this “ butt ” mold was, in the sand, would stand so firmly as to require two or more men to pull it over; while a “ butt ” mold, or one filled or partly filled with steel, in consequence of the concavity of its base, could be easily overthrown. Under the evidence it seems to us, that the appellee had the right, and he was justified in regarding the mold as an empty one, and to so conduct himself in the discharge of his duties as an employe of the appellant in the repair of the railway track, as he had been directed to do.

It does not follow because the appellee did not have the mold removed as offered, that he knew of the danger, or had any information of the actual condition of the mold. It can not be supposed appellee would knowingly pnt in peril life or limb, neither does it follow that the appellee assumed all risks in not requiring its removal. It is abundantly maní-. fest that the appellee did not suspect its dangerous condition. We have carefully examined this record, and we find no error, in our judgment, sufficient to authorize a reversal of the judgment of the Circuit Court, and that judgment is, therefore, affirmed.

tJudgment affirmed.