text:
    John C. Simonds v. Emily S. P. Allen.

      Husband and Wife—Marriage—Bill to DeclareVoid—Divorce in Another State—Re-marriage—Rule in New York,

      1. It is a rule of law in the State of New York, that a decree of divorce obtained in another State against one who, at the time it was rendered and during the pendency of the proceeding was domiciled in New York, and who was not personally served with process, and did not appear in the action or proceedings, is wholly inoperative and void, so far as relates to the defendant in such divorce proceeding.
    2. The presumption is, that a contract of marriage is to be performed in the place in which the parties to it are domiciled at the time the marriage is performed, and the capacity of each party to enter into a valid contract must be determined by the law of the place of the marriage.
    3. A marriage, invalid at the place it was entered into, must be held invalid wherever the question of its validity is raised for determination.
    4. Upon the introduction of the decisions of another State, showing the rule of l4w therein touching certain cases, it is proper for the court to determine the validity of a marriage contracted in that State by the law thereof.

      5. Upon a bill filed praying that a marriage which had been performed in another State should be declared void, this court holds that the ceremonv in question was a mere form, and that the trial court erred in dismissing said bill.
    [Opinion filed October 23, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. John C. Simonds, fro se, Edward Maher and George A. Gary.
    Ho appearance for appellee.
   Moran, J.

Appellant filed his hill in the Superior Court, praying that a marriage, which had been performed between him and the appellee in the State of Hew York, be declared void. An affidavit that appellee was a non-resident of this State, and that she was a resident of the State of Hew York, was filed, and proof of service upon her in the State of Hew York of a certified copy of the bill of complaint, and a notice, as required by statute, was made, and her default regularly entered. On hearing the evidence introduced by appellant in support of his bill, the chancellor refused the decree and ordered the bill dismissed, and to reverse such order this appeal is prosecuted.

The facts as alleged in the hill and proved by the evidence are as follows:

A marriage ceremony was performed between appellant and appellee in the city of Rochester and State of Hew York, on the 27th day of January, 1877, and the parties lived and cohabited as husband and wife in the said State for some years thereafter. At the time of said marriage appellant knew that appellee had been before married to a man named Allen, but was informed by appellee that her said husband, Allen, had been dead some eight years. In December, 1886, appellant ascertained that Allen was alive and a resident of Flint, Michigan. Appellee was married to Jerome Allen in Cayuga county, State of Hew York, in 1852, and lived with him as liis wife fourteen years. In 1868, while living in the city of Auburn, Hew York, she deserted her said husband, Jerome Allen, and thereafter they never lived together. Appellee continued to reside in the State of Hew York, but said Jerome Allen removed from said State in 1869 and located in the State of Michigan, where he was living at the date of appellant’s marriage to appellee, and where he still resides. In 1872 said Jerome Allen instituted, in the Superior Court of the City of Detroit, a suit for divorce from appellee. In said suit service was by publication only. She was not personally served with process or notice either in Michigan or Hew York, and did not appear either in person or by attorney. At the time of said divorce proceeding she was a resident of the State of Hew York, where she had continued to .live from the time she deserted said Allen, and she was not at any time a resident of the State of Michigan. Default was entered against her in the proceeding in Detroit, and the court, after hearing evidence in support of the bill, rendered a decree of divorce. As soon as appellant learned that Allen was alive he ceased living with appellee, and shortly thereafter, on ascertaining the facts above set forth with reference to the Detroit divorce, he instituted his suit for relief, praying to have the said marriage with appellee declared void ab initio.

It has been maintained, as the law of the State of Hew York, by a consistent line of decisions of the highest courts of said State, running through a period of more than seventy years, and commencing with the case of Borden v. Fitch, 15 Johns. 121, and finding the latest expression, so f ir as we are advised, in. Cross v. Cross, in 108 N. Y. 629, that a decree of divorce obtained in another State against one who, at the time it was rendered and during the pendency of the proceeding, was domiciled in the State of Hew York, and who was not personally served with process, and did not appear in the action or proceeding, is wholly inoperative and void, so far as relates to the defendant in such divorce proceeding. In The People v. Baker, 76 N. Y. 78, the defendant, who was indicted for the crime of bigamy, offered in evidence an exemplified copy of the record of judgment in the Court of Common Pleas of the County of Seneca, State of Ohio, in a proceeding against him by his first wife for divorce, in which, before he married the second wife in Hew York, a decree was entered, purporting to dissolve the first marriage. The record shows proof of service on the defendant by publication, and no personal appearance by him. Prior to the commencement of said judicial proceedings in Ohio the defendant resided at Bochester, in the State of Hew York, and he continued to reside there until after the decree of divorce was rendered, and there was no pretense that defendant was domiciled in Ohio, or temporarily abiding there at any time during the pendency of the divorce proceedings. The record was excluded, so far as it was offered to prove the dissolution of the prior marriage, and the defendant was convicted, and the conviction sustained by the Court of Appeals, on the ground that the Ohio decree of divorce was without effect upon the status of the defendant in Hew York, and that notwithstanding said decree, his marriage to a second wife while his first wife was living, was a crime. O’Dea v. O’Dea, 101 N. Y. 23, was, as this case is, a suit by the husband to have the marriage declared void, upon the ground that at the time it took place a former husband of the defendant was living, and the marriage with him was in full force. The proof was that the defendant married her former husband in Hew York, and lived with him in that State till 1860, when she left him and returned to her former home in Canada, where she continued to reside until 1865; that said former husband 'left Hew York and became a resident of the State of Ohio where, in March, 1864, after a residence of more than one year, he commenced a proceeding for divorce from the defendant, on the ground of desertion; that copy of the petition for divorce and of the summons issued thereon were sent by mail to the defendant, at Toronto, Canada, in March, 1864, and were received by her; that in April, 1864, depositions in said divorce proceeding were taken in Toronto on notice to defendant, and she was present at the taking thereof, but took no part in person or by counsel. She never in any way appeared in the proceeding in Ohio.

A decree was granted by the Ohio court, dissolving the marriage, and after the entry of said decree the defendant married the plaintiff, who knew when the marriage occurred that defendant had been a wife, and was not a widow, and also knew of the Ohio divorce proceedings during its pend-ency, and of its result. The former husband was living in Ohio at the time of the marriage of plaintiff and defendant. It was held that the Ohio court had acquired no jurisdiction over the defendant; that the decree of divorce was as to her inoperative and void; that her former marriage was still in full force, and therefore her marriage with the plaintiff was illegal and void.

These cases serve to illustrate the strictness with which the rule is adhered to in Hew York, and the severity with which it is administered, and they make it clear that if appellant was seeking in that State the same relief against the marriage with appellee that he is seeking here, it would undoubtedly be afforded to him.

Having become a resident of this State, is he not entitled to the same relief here that he might obtain by application to the courts of the State in which the marriage contract, alleged to be void, was made?

It must be noted that the question is not, what force and effect might be given to the Michigan divorce, if the inquiry arose in relation to the status of one of the parties to that proceeding, who should afterward contract marriage in this State. We are not called upon to determine the validity of the Detroit divorce; our inquiry relates to the validity of the Hew York marriage.

The law regards marriage as creating a status. The status is based upon the contract of the parties, and the validity of the contract is determined by the law of the place where the contract is made. The lex loci contractus is the test of the validity of all contracts, unless it appears that the contract is to be performed in some other jurisdiction. The presumption is, the contract of marriage is to be performed in the place in which the parties to it are domiciled at the time the marriage is performed, and the capacity of each party to enter into a valid contract must therefore be determined by the law of the place of the marriage. Warrender v. Warrender, 2 Cl. & F. 536; Schreck v. Schreck, 32 Tex. 587.

It is shown that the parties to the marriage in question were domiciled in Hew York, and that the marriage ceremony was performed there, and if, by the law of that State, it was unlawful for one of the parties to intermarry, the marriage was invalid, and if invalid, for such reason, at the place where the contract was made, it must be held invalid wherever the question of its validity is raised for determination.

Complainant on the hearing in the court below introduced the Hew York decisions in evidence. The law of Hew York was thus proved to the court, and it was the duty of the court to determine the validity of the Hew York marriage by the Hew York law.

As we have seen, by that law appellee had another husband living at the time she contracted the marriage with appellant, and she was incapacitated to contract such marriage and in doing so committed an offense against the State.

Such marriage was in fact and effect nothing but a mere form; as a contract or as creating the status of marriage between the parties, it was an absolute nullity. We think it clearly within the power of the court to grant'the relief prayed by the bill, and that it was error to dismiss the bill for want of equity. The decree of the Superior Court will, therefore, be reversed and the case remanded to that court, with directions to enter a decree in conformity with the prayer of the bill. Reversed and remanded.


source: Caselaw Access Project

author: Gary, P. J.

license: Public Domain

text:
    Charles B. Prouty, Assignee, et al. v. Emma B. Hanford and Harry Eaton.

      Writ of Error—Judgment by Confession—Eotes—Consideration—Assignment—Preference—Trust—Evidence—Costs.

    1. If there be a dissolution of a partnership, and the remaining partner takes all the assets, and agrees with the outgoing partner to pay all the debts, the partnership debts have no preference over the individual debts of the remaining partner in the disposition of the assets which before the dissolution, were the assets of the partnership.
    2. Upon a writ of error brought to reverse a decree of the Circuit Court rendered on an appeal from the County Court upon a petition filed in voluntary assignment proceedings, to declare void the alleged lien of executions issued upon judgments by confession in favor of the defendants, and against said insolvent, as against her property in the hands of her assignee, and to postpone and preclude said defendants from receiving any dividend out of said property until liona fide creditors should be paid, this court holds that the entering up of said judgments by confession, the levying of the executions on said property, and the making of the voluntary assignment by the insolvent were all part and parcel of one transaction by which she divested herself and intended to divest herself of all dominion over her property; that defendants should he paid pro rata with the other creditors, the amounts due them, and that no costs be recovered by either party from the other, but each to pay their own.
    3. Notes accepted by children after attaining their majority, from their mother, the same covering their shares of their father’s estate, in the absence of evidence going to show that they were not given with honest intent, will be considered as being based upon a sufficient consideration.
    [Opinion filed October 23, 1889.]
    In error to the Circuit Court of Cook County; the Hon Oliver H. Horton, Judge, presiding.
    Messrs. Weigley, Bulkley & Gray, for Chicago Shot Tower Co., and Charles B. Prouty, assignee.
    Mr. James H. Fairchild, for Hibbard, Spencer, Bartlett & Co., Winchester Repeating Arms Co., Union Metallic Cartridge Co. and Hartley & Graham.
    Mr. Charles S. Thornton, for Du Pont & Co., Hazard Powder Co. and Chicago Fireworks Co., Bayley & Waldo, for S. Westwood & Go.

    Partnership property is a fund or estate held for the purpose of the partnership as a separate and distinct entity. The interest of a partner therein is only a claim against the floating balance or surplus which may remain after the payment of the firm debts. Trowbridge v. Cross, 7 N. E. Rep. 347; Rosenstiel v. Gray, 112 Ill. 288.
    The interests of Mrs. Burgess and her two children in the property in question, were joint, and so far as the property was concerned they were partners. It is analogous to a limited or special partnership, and the rights of Mrs. Burgess and her two children are similar to the rights of a general and two special partners; that is, the property invested in trade liable for all the debts before either of the partners 'can obtain a share, and only the general partner liable personally.
    As to persons who never had any business transactions with the firm, notice by publication is sufficient; but as to those who have actual dealings with the firm, actual notice, or its equivalent., must be shown in order to release a retiring partner from liability. Meyer et al. v. Krohn et al., 114 Ill. 585.
    The distinguishing characteristic of a partnership is the sharing in protits and losses. Wilcox et al. v. Doge et al., 12 Ill. App. 517.
    Where a partner buys out his copartners, agreeing to pay the debts of the firm, the partnership property remains bound for firm debts just as before the sale. The lien of the firm creditors attaching must be preferred to the lien of an individual creditor of the remaining partner attaching first. Conroy v. Woods et al., 13 Calif. 626; Phelps v. McNeely, 66 Mo. 554; Calender v. Robinson, 96 Pa. St. 454.
    Where an act is done or a statement made by a party ■which can not be con!radicted or contravened without fraud on his part and injury to others whose conduct has been influenced thereby, an estoppel arises. Voge v. Breed et al., 14 Ill. App. 545; International Bank v. Bowen, 80 Ill. 545.
    If a wife advance her husband funds, for the purpose of carrying on a general trade, although in the wife’s name, the entire capital including increase will be liable for the debts of the husband. Wilson et al. v. Loomis et al., 55 Ill. 352; Robinson v. Brems et al., 90 Ill. 351; Patton v. Yates, 67 Ill. 164; Hockett v. Bailey, 86 Ill. 77; Miller v. Payne, 1 Ill. App. 118.
    Where one, having a right or interest by his conduct, influences another to act on the faith of its non-existence or that it will not be asserted, he shall not be allowed to afterward maintain it to the prejudice of those so acting : McGovern v. Knox, 21 O. St. 547; Roy v. McPherson, 11 Neb. 197; Anderson v. Armsted, 69 Ill. 454.

      Definition of ‘‘Insolvency”: When a. concern has not property enough to pay its debts. McArthur v. Chase, 13 Gratt. 694.
    An indebtedness created for the benefit of a trust estate is a charge on the same and may be collected therefrom. Moore v. Lambkin Tr., 63 Ga. 748; Wylly v. Collins, 9 Ga. 233; Dyett v. N. A. Coal Co., 20 Wend. 571; S. C. 7 Paige, 9.
    Debts contracted by a trustee upon the faith of the trust estate, are a charge upon such estate. Noyes v. Blakeman, 6 N. Y. (2 Seld.); Firemen’s Ins. Co. v. Bays et al., 4 Barb. 407; Frazer v. Brownlow, 3 Ired. Eq. 237; Cater v. Everleigh, 4 Desaus. 19; James v. Mayrant, 4 Desaus. 589; Ex parte Richardson, 3 Madd. 157; Montgomery v. Everleigh et al., 1 McCord, 154, 207; Willis v. Sharpe, 21 N. E. Rep. 705.
    In the last case mentioned it appeared that the goods had been purchased by one who had rented the estate and were for his own individual use and not for the benefit of the trust estate. He had, prior to that time, been active manager of said estate. Ho notice was given to the creditor from whom he purchased that he was buying them for his own individual use. A credit was given on the faith of the trust estate, and, the purchaser being insolvent, the estate was held liable.
    An exact duplicate of this exists in the case at bar. All of the trade debts of the insolvent were created on the faith of the trust estate.
    Beneficiaries can take nothing until all trade debts are paid in full. Ex parte Garland, 10 Ves. Jr. 110; Thompson v. Andrews, 1 Myl. & K. 116; Ferry v. Laible, 31 N. J. Eq. 576.
    A mother is under no legal obligation to support her child, so long as the father is living, or the child has an estate of its own or is able to support itself. Mowbry v. Mowbry, 64 Ill. 383; Pray v. Gorham, 31 Me. 240; Commonwealth v. Murray, 4 Binn. 487; 1 Blackstone Comm., 453; Passgr. Ry. Co. v. Stuttler, 54 Pa. St. 375; 1 Parsons on Contracts, *308.
    A father died intestate, leaving an estate to his widow and his two minor children. Held, that the mother will be allowed out of the portion of the estate belonging to the children for their maintenance, and this for time past as well as time to come. Wilkes v. Rogers, 6 Johns. 566; Hayward v. Cuthbert, 4 Desaus. 445; Osborn v. Van Horn et al., 2 Fla. 260.
    And where real and personal property was left to a widow and her two minor children in certain proportions, the widow was not held liable for the payment of rent of the children’s portion of the real estate, she having supported them, the point of the decision being that it was joint property used for the benefit of the joint owners and neither party could recover from the other. Hatch v. Hatch, 13 At. Rep. 791.
    Nor is a step-father bound to support the children of his wife by a former husband. Attridge v. Billings, 57 Ill. 489; Meyer v. Temme, 72 Ill. 554.
    And courts will even make appropriations out of the child’s estate in some instances where the father is living and has means with which to support the child. Jervoise v. Silk, Cooper’s Ch. 52.
    And always where he has not the means. Newport v. Cook, 2 Ashm. 332; Ex parte Green, 1 Jac. & W. 253; Carter v. Rolland, 11 Humph. 339.
    Even a father, standing in the same position or relation to his two children as Mrs. Burgess did in this case, would not be held liable to account for profits on their estate used by him in maintaining, supporting and educating them, much less a mother. Fuller v. Fuller, 2 So. Rep. 430.
    The guardian of an infant ward living in his family, can charge for board and clothing, though the ward be a near relative and though another member of the family offered to board her for nothing. Moyer v. Fletcher, 56 Mich. 508.
    Where the same person is both executor and guardian, he can not be held liable as guardian, until his accounts as executor show a transfer to his account as guardian. Conkey v. Dickinson, 13 Metc. 51; Alston et al. v. Mumford et al., 1 Brock. (U. S.) 266, and note on page 278 of said report; Burton v. Tunnel, 4 Harr. 424.
    He can not be held liable in both capacities. Wrenn et al. v. Grayden, 1 How. (Miss.) 365; Forteaux v. LePage, 6 Ia. 123.

      An executor who io also guardian should first settle his account as executor and then transfer the balance to the guardianship account. Schouler’s Dom. Rel., 373; Conkey v. Dickinson, 13 Metc. 51.
    Mrs. Burgess never having filed her bond or obtained her commission as guardian from the Probate Court, according to the statute, never became, in fact,the guardian of her children, but held the property from and after her husband’s death and until the date of the failure, as executrix. Secs. 5, 8 and 9, Ch. 64, title, Guardian and Ward, Rev. S. Ill; Wadsworth v. Conell, 104 Ill. 369.
    If any creditor of an insolvent debtor, contemplating an assignment, obtain a preference by or through the connivance or assistance of such debtor, the preference will be void as being within the voluntary assignment law prohibiting preferences. P. C. Hanford Oil Co. et al. v. First. Nat. Bk. of Chicago, 21 N. E. Rep. 483; Preston v. Spaulding, 120 Ill. 208; White v. Cotzhausen, 9 S. C. Rep. 309.
    Affirmative relief can not be granted defendant on an answer. Ballance v. Underhill, 3 Scam. 452; Rowan v. Bowles et al., 21 Ill. 17; Hanna v. Ratekin, 43 Ill. 462.
    Mr. Matthew P. Beady, for defendants in error.
    The case In re Johnson (Shearman v. Robinson), 15 Law Beporter, Chancery Division, page 548,1s in its facts almost identical with this case on the point now under consideration. It appeared from the evidence that an executor carried on the business of the testator under the terms of the will in his own name. In carrying on one branch of the business he received £764 16s. Id. more profits than he accounted for to the beneficiary under the will, who was an infant son of testator, and in carrying on another branch of the business he received from it and other sources £1,668 3s. Id. more than he accounted for. Various creditors who had supplied goods to the executor while carrying on the business, sought to have their claims paid oxxt of the assets of the business, on the ground that they had a lien on the assets which gave them priority over the claim of the beneficiary under the will. It was held that the creditors were not entitled to a lien on the assets of the business, nor to priority over the claim of the beneficiary for the amount for which the executor was in default to them, because the executor, being in default to the estate, was not entitled to indemnity, and the creditors stood in his place. The grounds of the decision are stated succinctly in the syllabus thus:
    “ Where a trader has by his will directed his executor or trustee to carry on his trade and to employ a specific portion of the trust estate for the purpose, the rule is, that though the executor or trustee is personally liable for debts incurred by him in carrying on the trade pursuant to the will, he has the right to resort for his indemnity to the specific assets so directed to be employed, but no further. And, consequently the creditors of the trade are entitled to stand in the place of the executor and trustee, and to claim the benefit of that right so as to obtain payment of their debts. But the rule does not apply where the executor or trustee is in default to the specific trust estate devoted to the trade. In such a case, the defaulting executor or trustee not being himself entitled to an indemnity except upon terms of making good his default, the creditors are in no better position, and are, therefore, not entitled to have their debts paid out of the specific assets unless the default is made good.”
   Gary, P. J.

In 1870 Charles A. Eaton died; at the time of his death he was a partner in the mercantile firm of Eaton & Abbey. By his will 1 e left it to the discretn n of his widow, Emma E., since re-married, and now Burgess, to continue the assets of his estate in the business. Very soon after his death she bought out the partner Abbey, mainly with the proceeds of insurance on the life of her husband, and thereafter conducted the business in her own name as E. E. Eaton.

By the will of her husband, the shares in his estate of her two children, the defendants in error, Emma B. Hanford and Harry Eaton, then both minors, were something less than $6,000 each. Both children lived with, and were supported and educated by their mother.

In April, 1885, the daughter being about to marry and the son nearly of age, they all met at the office of Messrs. Grant & Brady, attorneys, and the mother and children agreed upon the terms of making her notes for §6,000 to each of the children, in full of all their respective claims.

The note to the daughter was then executed; that to the son was deferred to the following December, when he became of age. Both were judgment notes. These notes were left with plaintiff in error, Prouty, who was then, and continued thereafter to be, so long as the business continued, the business manager of Mrs. Burgess. April 21, 1886, the husband of the daughter applied to Prouty and received a statement of the condition of Mrs. Burgess affairs. Mot liking that condition, he told his wife to take her note to Grant & Brady, and do as they advised, and that his judgment was, that judgment should be entered upon the notes. April 22, 1886, Mrs. Burgess, Prouty, Mrs. Hanford and the son, all met at the office of Grant & Brady; judgments were entered upon the notes, executions issued and levied upon all the property of Mrs. Burgess. The next day Mrs. Burgess made a general assignment to Prouty, and by agreement a few days after, the property levied upon by the sheriff was delivered to the assignee, preserving liens. The plaintiffs in error now claim:

First: That the property employed in said business under the name and style of E. E. Eaton, being trust property, in part at least, the rights of trade creditors to be paid out of the proceeds of said property so employed in said business, are superior to the rights of the beneficiaries of said trust.

Second: That the promissory notes given by the insolvent, Emma E. Burgess, to Emma B. Hanford and Harry Eaton were without consideration and therefore void as to creditors.

Third: That the entering up of said judgments by confession, the levying of the executions on said property, and the making of the voluntary assignment by the said insolvent, were all part and parcel of one transaction by which she divested herself and intended to divest herself of all dominion over her property.

As to the first point, it has not been deemed necessary to attempt to ferret out from this record what portion of the indebtedness of Mrs. Burgess which existed at the time of the assignment, existed at the date when the notes were given.

If the theory of the plaintiffs in error were correct, it could only apply to that class of indebtedness.

But the theory is not correct. By the settlement between Mrs. Burgess and her children all the assets of the business became her own in law and equity, and subject to her disposition.

The case of Ladd v. Griswold, 4 Gilm. 25, followed under very provoking circumstances in Hapgood v. Cornwell, 48 Ill. 64, and approved in Goembel v. Arnett, 100 Ill. 34, establishes the law of his State, that if there.be a dissolution of partnership, and the remaining partner takes all the assets and agrees with the outgoing partner to pay all the debts, the partnership debts have no preference over the individual debts of the remaining partner in the disposition of the assets which were, before the dissolution, the assets of the partnership. If, as to a formal acknowledged partnership, this be correct doctrine, it applies with greater force to this case, where the interests of the children, whatever its character, was silent and secret, and they were never held out to the world as having any interest. When that settlement was made the parties were all capable, under the law of this State, to make such contracts with reference to the business then in hand as they could agree upon.

The second point is not well taken. The defendants in error took their mother’s notes in full of their claims upon her. If that was with honest intentions, which will be presumed unless there is something shown to the contrary, the claims thereby adjusted and liquidated were good and sufficient consideration for the' notes, creating debts of fixed amounts against her.

To impeach, as for fraud against other creditors, a note given by the remaining partners to an outgoing partner for his interest in a firm not able to pay its debts, there must be proof of a fraudulent design. Blow v. Gage, 44 Ill. 208. The principle is applicable here.

The third point is sustained by the evidence. On the whole evidence it is apparent that the mother and children left all their interests in their pecuniary relations with each other, jointly and severally, with and to the discretion of Grant & Brady. They were intrusted by all with the authority to devise any plan that recommended itself to their judgment.

At that time the doctrine of Preston v. Spaulding, 120 Ill. 208, had not been announced. It was supposed by the legal profession generally, that a judgment by confession and levy under an execution issued upon it would take precedence of an assignment for the benefit of creditors following immediately, and that no connection between them would have the effect to make the judgment void as an unlawful preference. The judgment of the Circuit Court directing the payment in full of the executions in favor of the defendants in error will therefore be reversed and the cause remanded to the Circuit Court, with directions to order that the defendants in error bepaidy>ro rata with the other creditors, the amounts due upon their respective notes, without costs, made by entering judgment, etc. And that no costs be recovered by either party from the other at any stage of this litigation, but each pay all their own.

Reversed a/nd remanded.

Moean, J., does not concur in so much of the opinion as holds that the judgments were an unlawful preference.


author: Garnett, J.

text:
    Mauria L. J. Johnson v. Alfred B. McChesney.

      Real Property—Title—Cloud—Bill to Remove—Sale upon Installments—Failure to\Pay—Retention of Payments as Liquidated Damages— Recording Contract.

    1. Only the owner of land can ask to have a cloud removed from the title thereof. «

      2. Costs and expenses incurred by an owner in such a proceeding can not ordinarily be recovered from his grantor on any of the covenants usually found in warranty deeds.
    3 The general rule that a bill to remove a cloud can only be maintained when the complainant is in possession, or the land is unimproved and unoccupied, is subject to the exception that, when there is no adequate remedy at law, equity gives relief.
    4. It seems that the owner of real property can not, subsequent to a conveyance thereof, maintain a bill to remove a cloud from the title, even if he warranted the same.
    [Opinion filed October 23, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. John Gibbons, for plaintiff in error.
    Mr. Granville W. Browning, for defendant in error.
   Garnett, J.

On March 1, 1881, a contract was made by the defendant in error with plaintiff in error, to sell her two lots in Cook county, for the sum of $450, to be paid in install, ments. The sum paid is in dispute, but it was either $90 or $ 100. The contract made time of its essence, and authorized Mc-Chesney, at his option, to declare a forfeiture for the failure in payment of an installment, and in that event to retain all payments as liquidated damages. The purchaser filed the contract for record and failed to pay any installment after the first. After such failure McChesney tendered her a warranty deed, on June 30, 1886, and demanded compliance by her with the contract; she still "neglecting to make any additional payment, he filed the bill in this case, to remove from the title the cloud caused by the recording of the contract.

The bill alleges that McChesney is seized in fee simple of the premises; but it appears from his own testimony that he had sold and conveyed the lots to some other person before the bill was filed, thus disproving one of the material allegations of the bill. Only the owner of the land can ask to have a cloud removed from .the title. Gage v. Stokes, 125 Ill. 41; Huntington v. Allen, 44 Miss. 654.

If that which is assailed is nothing more than a cloud, the owner is the only person interested in having the fact judicially found; he, being content to allow the cloud to remain, no complaint should be heard from any other source. If, in a suit in equity to remove the cloud, he incurs costs and expenses (other than the amount which equitjr may require to be paid to his adversary), he can not recover them from his grantor on any of the covenants usually found in warranty deeds. Rawle on Covenants (5th Ed.), Sec. 201; 2 Sutherland on Damages, 308. A complainant who voluntarily parts with his title after filing his bill and before hearing on the merits, loses his right to proceed to a decree. Smith v. Brittenliam, 109 Ill. 540. He certainly can be in no better position if he disposes of his title before commencing suit. Whether appellee’s conveyance was with or without covenant is n >t stated in this record. Even if he warranted the title, there is respectable authority denying his right to maintain a bill to remove the cloud. Bissell v. Kellogg, 60 Barb. 617.

While the rule announced in the last case cited has not, so far as we are aware, been approved by the Supreme Court of this State, it was held in Smith v. Brittenham, supra, that the effect of complainant’s covenant could not be considered, as the bill proceeded upon the theory of ownership, and not on the theory of his liability on any covenant. Here, as there, the bill proceeds upon the allegation that McChesney is the owner in fee, no reference being made therein to any conveyance by him.

In the decided cases it is frequently said, in general terms, that a bill to remove a cloud can only be maintained when the complainant is in possession, or the land is unimproved and unoccupied. To this general rule there is an exception, namely, that when there is no adequate remedy at law equity gives relief. Illustrations of the exception are found in Mitchell v. Shortt, 113 Ill. 252; Shays v. Morton, 48 Ill. 100; Holden v. Holden, 24 Ill. App. 106.

In all three of these cases the defendants were in possession, but as an action of law would not settle such titles, a bill to quiet title was held maintainable. In this case it is manifest that a judgment for appellee, in an ejectment suit brought by him against appellant, would not be decisive of her equitable interest under the contract. Hence, if all the other conditions were favorable to the complainant, the absence from his bill, of an averment that he was in possession, or that the premises were unimproved and unoccupied, would present no ground for denying the relief prayed.

The record presents a serious question, upon which we have received from counsel no assistance, either by way of argument or citation of authority, to wit: Will equity give complainant the relief desired, unless he refunds the money received by him under the contract? Upon that question we deem it wise not to pass without first hearing argument, and the suggestion is made in view of the fact that if the bill is amended by making the owner of the lots complainant, then, upon appeal from another decree of the court below, this point is liable to be presented.

The decree being in conflict with the rule herein announced, is reversed and the case remanded.

Iteversed andremmded.


author: Moean, J.

text:
    Milton H. Wilson et al. v. Dixon Bean.

      Limited Partnerships—Special Partner—Certificate—Statute of Colorado—Liability as General Partner—Evidence.

    1. The purpose of requiring a certificate of the amount of capital contributed by a special partner, is to enable those who may deal with the firm to estimate the credit that may be prudently extended to it, and it is strictly just that they shall be able to make such estimate with the greatest possible accuracy.
    2. The certificate of a special partner which sets forth that he contributed goods to the value of a certain amount, the fact being that an indebtedness was paid him by the firm during the continuance thereof, must be looked upon as sufficiently misleading and deceptive to render its maker liable as a general partner to creditors of the firm.

      [Opinion filed October 23, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
    Messrs. Flo web, Remy & Holstein, for appellants.
    Messrs. Bisbee, Ahrens & Decker, for appellee.
   Moean, J.

This action was brought to recover from appellee, as a general partner, for goods sold and delivered to the firm of C. L. De Mange & Co., Avhich was organized as a limited partnership under the statute of Colorado. A special partnership may be formed under the Iuav of that State by the special partners contributing, instead of money, property at a cash value, and the certificate required by the statute to be signed by the partners must state the amount of money, or property at cash value, contributed by the respective special partners.

The certificate of organization of the special partnership signed by appellee, stated that his contribution to the capital stock was “ the sum of two thousand six hundred and thirty-five and eighty-six one hundredths dollars, in merchandise of the full cash value, of the said sum.” The evidence shoAvs that what was contributed was certain merchandise which had belonged to a prior firm, the value of appellee’s interest in which was estimated to be the sum named in the certificate. We do not find it necessary to determine whether turning over an undivided interest in a stock of merchandise, which interest is estimated to be of a certain value, is equivalent in law and in fact to contributing merchandise of a certain cash value, for the reason that we are compelled to reverse this case, however that particular question may be.

It appears from the evidence in this case, that prior to the formation of this special partnership, a partnership in a similar business existed between appellee and C. L. De Mange, and that said former firm had become indebted to Wilson Brothers, and was unable to pay, and that to protect the firm, appellee, shortly before the formation of the special partnership, purchased from said Wilson Brothers their said claim, paying therefor the sum of §1,754.19, and took an assignment of said claim to himself, and it was credited to him on the boobs of the firm. This indebtedness of the old firm does not appear, so far as we can ascertain from the evidence, to have been settled or paid up at the time of the formation of the special partnership in question, but seems to have been paid to appellee during the continuance of the special firm in small payments made from time to time out of moneys received by the said firm in course of its business. It is contended by appellee that it is not shown that this money was paid to him out of the firm assets. ITon constat, he says that De Mange did not obtain the money from some other source than out of the firm assets. But the source whence De Mange got money to pay other claims to appellee is shown, and no attempt is made to show the source of the payments made from time to time on this debt. We think the fair inference from the evidence as it is in this record, is that this claim against the old firm was held by appellee against the new firm, and paid by the new firm, and if this was so, then it operated as a practical withdrawal of capital by appellee to the amount of such claim.

The purpose of requiring a certificate of the amount of capital contributed by the special partner is to enable those who may deal with the firm to estimate the credit that may be prudently extended to it, and it is strictly just that they shall be able to make such estimate with the greatest possible accuracy.

It is clear that if the new firm in fact assumed to discharge and did discharge the old firm’s debt to the special partner, his certificate of the amount of capital contributed to the new firm would be misleading and deceptive, as a means of estimating the credit that should be allowed to the new, and might well operate as a snare or trap to those who extend credit to it. The certificate would be substantially untrue, and in our opinion the special partner would become liable as a general partner.

We have been urged by counsel for appellants to enter a judgment in this court against appellee for the amount of their claim. We do not deem the case a proper one for the adoption of that course. The evidence on the point on which we reverse the case is not altogether clear, and we are of opinion that justice between the parties may be more certainly attained by remanding the case for another trial, when further evidence may be introduced, and the facts with reference to the source of the fund for payment of the Wilson claim to appellee be more clearly shown. The judgment will be reversed and the case remanded.

Reversed and remanded.


author: Moran, J.

text:
    John S. Cook v. Isadore F. W. Gillmore et al.

      Trusts—Compensation of Trustee—Failure to Prooide for.

    A trustee appointed under an order containing no provision for payment can not recover compensation for his services.
    [Opinion filed October 23, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Lynn Helm, for appellant.
    Mr. C. S. Miller, for appellees.
   Moran, J.

Appellant filed hispetition to have his accounts as trustee settled, and asking that he be relieved from the trust and a successor appointed, and that compensation be allowed to him for services rendered by him in and about the execution of the trust. It appears that by a contract entered into between appellees and one Frederick Ayer, certain funds arising out of a sale of real estate, being in the shape of promissory notes received, and amounting in all to s'ome $31,000, were constituted trust funds for appellees, and Robert D. "Wilson was appointed trustee of said funds. This agreement was confirmed and carried out by a proceeding in court relating to said real estate, and said Wilson was appointed trustee without any provision being made either in the agreement or order of court for his compensation.

On the death of said Robert D. Wilson, appellant was, at the request of all the appellees, appointed trustee and given custody of the trust fund, but the order appointing him contained no provision for compensation. He performed the duties of the trust, which required much personal attention and the expenditure of considerable time, and he now insists that he is entitled to be recompensed for the services by him rendered in the discharge of the duties of the trust. If the question could be regarded as an open one on the law, we should have little difficulty in concluding that appellant was entitled to compensation for time and attention rendered by him; but we understand it to be an established rule, that “the trustee shall have no allowance for his trouble and loss of time.” This rule is laid down in all the elementary works on trusts and trustees, and is established by a consistent line of decisions of the courts of chancery in England. See Hill on Trustees, 889; Perry on Trustees, Sec. 904; 2 Lewin on Trusts, 627, and cases cited by those authors. The rule has been applied in all its strictness in this State, whenever the question has arisen. Constant v. Matteson, 22 Ill. 546; Hough v. Henry, 71 Ill. 72; Higgins v. Rider, 77 Ill. 360.

In the case last cited the Supreme Court said: “At the common law and in the absence of a contract, a trustee was entitled to no compensation for the management of .the trust property. He was under no compulsion to accept the trust, and could, if he desired, impose any terms he chose as the conditions upon which he would accept; and the person proposing to create the trust had his option to comply or not as he chose. But having accepted without any agreement for compensation, the trustee might charge for all reasonable and proper expenses incurred for caring for and preserving the trust property or fund. This being the law, and no contract having been made for compensation, by what rule or for what reason can it he claimed from the cestui que t/rxist?”

Such being the rule recognized and established by our Supreme Court, we are not at liberty to depart from it and follow a different rule, no matter how well established by respectable courts in other jurisdictions.

Hone of the circumstances urged by counsel for appellant serve to distinguish this case, so far as regards this point, from the cases in which the doctrine has been applied in this State.

We regard the decree of the Circuit Court as in all respects correct, and the same will therefore be affirmed.

Decree affirmed.


author: Mokan, J.

text:
    G. W. Leihy v. F. A. Briggs.

      Sales—Articles Intended for the Use of One of Several Partners—Pur-' chase in Firm Name—Promise by One of Several Partners to Assume Firm Debt—Acceptance by Creditor of Offer—Evidence.

    1. Articles intended for the use of one of several partners may be purchased in the firm’s name, if so purchased w ith the consent of all the partners, and when such articles are purchased and are charged to the partnership account, the debt will not be changed from a joint debt of all the partners to a several debt of the one who used the chattels, by the refus .1 of the other partners to treat the debt as a firm debt.
    2. If one of several partners promises a creditor of the firm of which he is a member to assume and pay his entire debt, and the creditor agrees to look to him alone, a substitution of debtor is affected and the other partner is released.
    3. In an action to recover the price of a phaeton and other property sold to a certain firm, it being contended by the plaintiff that because they were purchased for the defendant’s wife, the price thereof could not become a firm debt, this court holds, that in view of the agreement entered into by the members thereof, to settle differences existing between them, that the other partner should assume all indebtedness of the partnership, and of the fact that he was accepted as debtor by the plaintiff, operated to release the defendant from all liability upon such claim.
    [Opinion filed October 23, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs Monroe & McShane, for appellant.
    The agreement on the part of Leihy to turn over the property to Acker, and Acker’s agreement to pay the debts of the firm, including this, was certainly a good consideration moving from Leihy to Acker; and when Mr. Briggs, who was present, aiding in the consummation of that agreement, said to Mr. Leihy, “If you will do that, I will take Acker and release you,” and Leihy accepted, that was a good and valid consideration for Briggs’ agreement. When Leihy executed his part, his liability to Briggs either individually or as a member of the firm was ended. Mr. Leihy was never individually liable to Mr. Briggs. When his liability as a partner ceased his individual liability ceased. So there was no need of any special plea denying individual liability or setting up that the debt was due from Acker & Leihy.
    Messrs. C. H. Willett and C. Porter Johnson, for appellee.
    The principle of law which we ask the court to modify is stated in the opinion inthese words: “The rule is that if one partner promises the creditor to assume and pay the entire debt, and the creditor promises to look to him alone, a substitution of debtors is effected, and the other partner is released. This is founded on the doctrine that the sole liability of one of two debtors may, under many circumstances, be more beneficial and convenient than the joint liability of two, and therefore the change is founded upon a valuable consideration; and whether it was actually a benefit in each particular case will not be looked into, but the agreement will be sustained. Bates on Part., Sec. 505.”
    The courts adopts this dicta of the text of Bates which comes from a misconception and misquotation of the opinion of Denman, C. J., in Thompson v. Pereival, 5 Barn. & Adol. 925, A. D. 1834, where, on page 932, he says:
    “It appears to us that the facts proved, raised a question for the jury, whether it was agreed between the plaintiffs and James, that the former should accept the latter as their sole debtor, and should take the bill of exchange accepted by him alone, by way of satisfaction for the debt due from both. If it was so agreed, we think that the agreement and receipt of the bill would be a good answer on the part of Charles Percival to this demand, by way of accord and satisfaction. It is not necessary to determine whether the assent of Charles to this agreement was necessary, in order to give it such an operation, because if it was, there is evidence of a delegation by Charles to James to make such an agreement, for James had the partnership effects left in his hands, and was to pay all the partnership debts.
    “It cun not be doubted but that, if a chattel of any kind had been, by the agreement of the plaintiff and both the defendants, given and accepted in satisfaction of the debt, it would have been a good discharge. It is not required that the chattel’should be of equal value, for the party receiving it is always taken to be the best judge of that in matters of uncertain value. Andrew v. Boughey (Dyer, 75 a). Nor can it be questioned but that the bill of exchange of third persons, given and accepted in satisfaction of the debt, would be a good discharge. But it is contended that the acceptance of a bill of exchange by one or two debtors can not be a good satisfaction, because the creditor gets nothing which he had not before. The written security, however, which was negotiable and transferable, is of itself something different from that which he had before; and many cases may be conceived in which the sole liability of one or two debtors may be more beneficial than the joint liability of two, either in respect to the solvency of the parties or the convenience of the i emedy, as in cases of bankruptcy or survivorship, or in various other ways; and whether it was actually more beneficial in each particular case can not be made the subject of inquiry.
    “The cases of Lodge v. Dicas (3 B. & A. 611), and David v. Ellice (3 B. & C. 611), are said to be against this view of the law. In the former, however, no new negotiable security was given, nor does the difference between the joint liability of two, and the separate liability of one, appear to have been brought under the consideration of the court.”
    In this case it was left for the jury to say whether an accepted bill of the continuing partner was not an accord and satisfaction of the firm’s debt.
    In Lyth v. Ault, 7 Ex. 669, Alderson, J., p. 674, sustains the opinion in these words: “It is demonstrable that the sole security of A may be a better thing than the joint security of A and B; for, by accepting the sole security of A instead of the joint security of both debtors, the creditor possesses a legal remedy against A during his lifetime, and against his assets after his death, and no security whatever against B. How, as to the case where the security is joint. After the death of A there exists a legal liability of B, and no legal liability of A’s assets; but an equitable remedy against the assets of A, subject to the necessity of making B a party to a suit in equity. How, these two securities are different things, and therefore a bargain to take the one for the other is good. Cases may be suggested of A being rich and B poor, in which the advantage of taking A as the debtor in lieu of A and B is clear; or it may be that B is as rich as A, in which case the creditor may fairly consider that one debtor alone is preferable to both together. If, instead of B, the names of a hundred persons be substituted, these persons must all be made parties to a suit in equity. Wilkinson v. Henderson, 1 My. & K. 585; Thorpe v. Jackson, 2 Y. & C. 553, where Lord Eldon’s opinion in Ex parte Kendall is quoted. How, in a suit in equity where a hundred parties are in the suit, the chances of its lasting many years and of its costing much are infinite.”
    In Backus v. Forbes, 20 N. Y. 204, head-note reads: “It was agreed between two partners and a creditor of the firm that it should be submitted to arbitrators to divide and appropriate the assets as they deemed fit for the payment of debts, and to determine which of the partners should pay the creditor, and the other should be discharged. Held, such submission constitutes a sufficient consideration, and that an award discharging one of the partners is a bar to an action against him.”
    The submission was in writing, signed by the partners and the creditor.
    Comstock, J., on page 207, says: “It is quite true that the obligation of one of two joint debtors, substituted for that of both, affords no new security to the creditor.”
    In Collyer v. Moulton, 9 R. I. 90, quoting the dicta of Thompson v. Percival, supra, it is held the facts do not warrant it.
    In Walstrom v. Hopkins, 103 Pa. St. 118, A. D. 1883, head-note reads: “ A promise by the creditor of a firm to release a partner who has retired from the firm, that he would look to the continuing partner only for payment of his debt, unless founded on a legal consideration is nudum pactum, and can not be enforced.”
    The facts are on all fours with the case at bar; Gordon, J., said (page 120): “ Were we to approve of the judgment of the court below, we must adopt the doctrine that a consideration purely moral in its character, an empty promise, without more, is sufficient to support a legal contract.”
    In Lodge v. Dicas, 3 Barn. & Ald. 611, A. D. 1820, headnote reads: “Upon the dissolution of a partnership, it was agreed between the partners that one of them should take upon himself to discharge a debt to A; A was informed of this, and expressly agreed to exonerate the other partner from all responsibility. Held, that these circumstances did not constitute any defense to the latter in an action by A against both partners.”
    In David v. Ellice, 7 Dow. & By. 690, head-note reads:

      “ One of four partners having retired, the other three continued the business, assuming the funds, and charging themselves with partnership debts. A, a creditor of the old firm, was informed of this arrangement, and his account was, with his consent, transferred from the old firm to the new, with whom he continued to have dealings, drawing upon them and making them payments for about twelve months, when they failed, in his debt. Held, that the retired partner was still liable to A for the balance due to him by the old firm, though if A had drawn for that balance atJ any time during the solvency of the new firm, it would have been paid.”
    In Early v. Bart, 68 Ia. 716, head-note reads: “The promise of one partner to pay a debt for which he is already bound is no consideration for an agreement to release the other partner.”
    In Clark v. Billings, 59 Ind. 108, head-note reads: “In an action on a promissory note, executed by a partnership, an answer by one of the partners, that, with the consent of the plaintiff, he had retired from the partnership, and transferred his interest in the partnership goods to the remaining partner, who had assumed, the debts of the partnership, is insufficient.”
    In Chase v. Vaughan, 30 Me. 412, head-note reads: “A parol contract to discharge one of two joint debtors, if made without consideration, can not be enforced.” The promise was to take the continuing partner for a firm debt. Thomas v. Shilliber, 1 Ex. 124; Georgia Co. v. Castleberry, 43 Ga. 187; Eagle Manf. Co. v. Jennings, 99 Kan. 657.
   Mokan, J.

Appellee brought this action against appellant to recover for the price of a phaeton, single harness, robe and whip, sold and delivered.

Plaintiff’s evidence, which consisted of depositions of witnesses, clearly showed that said articles were, on the order of Acker & Leihy, of which firm appellant was at that time a member, shipped from San Francisco, Cal., to appellant’s wife at Eureka. The articles were ordered in the name of Acker & Leihy by appellant, with the knowledge of his partner Acker, and were charged against the firm on the books of appellee. Appellee’s counsel contends that because they were purchased for appellant’s wife they could not properly be charged to the firm and that the price of them didnot become a firm debt.

Articles intended for the use of one of the partners, may be purchased in the firm’s name, if so purchased with the consent of all the partners, and when articles are so purchased on the partnership credit and charged to the partnership account, the debt will not be changed from a joint debt of all the partners to a several debt of the one who used the chattels, by the refusal of the other partners to treat the debt as a firm debt. Appellant swears that the articles in question were charged to him on the books of Acker & Leihy, and went with other accounts into the settlement between him and his partner.

The fact that the debt sued for was a firm and not an individual debt, would not avail appellant as a defense to this suit. But the contention is, that being a firm debt it was assumed with all other firm debts and agreed to be paid by his partner Acker, in a settlement of his partnership matters, and that in consideration of his making such settlement appellee agreed to take Acker for the indebtedness due to him from the firm, and to release appellant from liability for said indebtedness.

Appellant testified upon the trial that a difference arose between himself and his partner, and that appellee, to whom the firm was indebted in a large amount, came to Portland, Oregon, where the firm was doing business, and arranged a settlement between appellant and his said partner. That the settlement was that appellant should take some lots situated in Chicago and $800 in money for his interest in the firm, and that Acker should assume and pay all the firm debts; that said settlement was negotiated by appellee, and in consideration of appellant’s agreeing to such settlement, appellee agreed to take Acker for the whole firm indebtedness and release appellant. A schedule of the firm debts was made out showing those assumed by Acker, and among others on said list was the charge for the phaeton, harness and whip, for which recovery was now sought.

Appellant’s account of the settlement and agreement is supported by the testimony of his son, and is practically without contradiction. We are, therefore, compelled to find that the agreement of Acker to pay the firm debts was made, and that the agreement of appellee to take Acker for the firm debts and release appellant in consideration that appellant would agree to the settlement, was also made. This agreement, in our opinion, constitutes a good defense to the action. The rule is, that if one partner promises the creditor to assume and pay the entire debt, and the creditor promises to look to him alone, a substitution of debtor is effected, and the other partner is released. “ That is founded on the doctrine that the sole liability of one of two debtors may, under many circumstances, be more beneficial and convenient than the joint liability of two, and therefore the change is founded upon a valuable consideration; and whether it was actually a benefit in each particular case will not be looked into, but the agreement will be sustained.” Bates on Partnership, Sec. 505.

“If one of the debtors agrees to surrender, and does surrender to the other his interest in the property and funds which they own together, an agreement of the creditor to discharge him and look to the other is well founded on that consideration. Backus v. Forbes, 20 N. Y. 204; see, on same point, Thompson v. Percival, 5 B. & Ad. 925; Lyth v. Ault, 7 Ex. 667; Collyer v. Moulton, 9 R. I. 90; Walstrom v. Hopkins, 103 Pa. St. 118.

The finding and judgment of the Superior' Court must be reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Garnett, J. Gabnett, J.

text:
    Neil McCoull v. S. Herzberg.

      Landlord and Tenant—Sewer Gas—Recovery of Rent—Lease—■Conditions—Fraudulent Representations.

    1. A landlord does not insure that nothing exists touching the premises in question that will interfere with the health or comfort of his tenant nor is he bound to repair unless the lease so provides.
    2. The law does not imply a contract on the part of a landlord that premises demised are tenantable or that they will continue to be so during the term.

      3. An action at law to recover rent covenanted to be paid by lease under seal', can not be met by the defense that the lessee was induced to execute the lease by fraudulent representations as to the character or surroundings of the premises.
    [Opinion filed October 23, 1889.]
    In error to the Circuit Court of Cook County; the Hon. Bollie S. Williamsoe, Judge, presiding.
    Messrs. Abbott, Oliver & Showalter, for plaintiff in error.
    If A, by deceitful representations as to the sanitary condition of a dwelling house, induces B to take a lease of the same, the latter, on discovering the real condition of the house, may elect either to repudiate the lease and vacate, or to retain his leasehold and use the premises for any purpose not inconsistent with the covenants or restrictions contained in the lease. In the former case all covenants become void; in the latter all covenants are of course binding. In either case B may have his action for the deceit. If he has repudiated the lease, the measure of damages may be nothing more than the expense of moving in and out; if he has elected to abide by the lease, the measure of damages may be nothing more than the difference in value between what the leasehold estate was actually worth, and what it would have been worth had the false representation been true—in other words, the cost of such repairs as would make the house answer the representation. If, after discovering the falsity of the representation B continues to hold and occupy the premises, this is an election to abide by the lease, and B is, of course, hold to all covenants made by him, including the covenant to pay rent. Morey et al. v. Pierce, 14 Ill. App. 91; Arnold v. Clark, 45 N. Y. (Superior Court) 253; Drew v. Beal, 62 Ill. 165; Flynn v. Hatton, 43 Howard’s Pr. 333; Walker v. Swayzee, 3 Abbott’s Pr. 136; Sedgwick on Damages, 7th Ed., Vol. 1, 606; Vol. 2, 557; Benjamin on Sales, 3d Am. Ed., 436, 437, 441.
    If we are to assume such a state of facts as would have given Herzberg an action for deceit against McCoull, then, since Herzberg discovered the fraud in Hoveinber, but continued thereafter to hold the premises and pay rent, it must be said that he elected to stand by the lease.
    A landlord is under no implied obligation to repair; nor where premises are let for a particular purpose—where the use is restricted by covenants or conditions—is there any implied warranty by the landlord of fitness for such purpose. A tenant can not, therefore, relieve himself from his obligation to pay rent by vacating. 1 Washburn on Eeal Property, 5th Ed., 576; Taylor’s Landlord and Tenant, 7th Ed., 330; Foster v. Peyser, 9 Cush. 243; Hart v. Windsor, 12 M. & W. 68; Cleaves v. Willoughby, 7 Hill, 83; Wheeler v. Crawford, 86 Penn. St. 327; Purcel v. English, 86 Ind. 34; Cowen v. Sunderland, 14 N. E. Reporter, 118.
    Mr. C. C. Straws', for defendant in error.
    A provision in a lease, that “ the lessor shall not be liable for any repairs on the premises during the term, the buildings now being in perfect order,” has reference only to the condition of the building as edifices in perfect repair, and not to the condition of the surroundings, or the purity of the air in the vicinity, either then or at any future time. Wood’s Landlord and Tenant, p. 609, Sec. 378; Foster v. Peyser, 9 Cush. (Mass.), 242.
    It is a general principle of law, well understood by the profession, that “any actual expulsion of the tenant, or intentional disturbance by the landlord, or by any other person acting by his authority, or by virtue of a legal right vested in them in any manner, which so seriously disturbs the tenant’s possession as to compel an abandonment of the premises.by him, or which deprives him of their beneficial enjoyment, amounts to an eviction, and the rent is suspended from the time of such disturbance,” and the question to be determined is, did the existence of this deleterious stench, the poisonous sewer gas in the house in question, as shown by the testnhony in this case, amount to an eviction?
    “If the landlord himself creates a nuisance upon, or in the vicinity of the premises, it amounts to an eviction, and this is so whether the nuisance arises from an act of omission or commission.” Wood’s Landlord and Tenant, page 803, note 1.
    Where a landlord permitted the drains in his cellar adjoining the leased premises to get out of repair, so that the adjoining premises became untenantable, it was held sufficient to constitute an eviction. Alger v. Kennedy, 49 Yt. 109; Wood’s Landlord and Tenant, p. 803, note 1, and cases there cited. In Cowie v. Goodwin, 9 C. & P. 65, the tenant proved, in an action for use and occupation, that the wall of the privy gave way, and the filth from it flowed into the kitchens, so as to render them uninhabitable. Lord Denman said : “I shall ask the jury whether these premises were unfit for proper and comfortable occupation, and if the defendant had Iona fide quitted the apartments, as soon as he could procure others;” and the jury having answered both questions in the affirmative, the plaintiff was non-suited, and on motion for a new trial for misdirection the rule was refused. Wood’s Landlord and Tenant, p. 804, in note 3, commencing on p. 803.
    On p. 805 of Wood’s Landlord and Tenant, it is said: “ If the landlord lets only part of a building—as in the case at bar the first flat and basement—and permits the part retained by him to fall into such a state of disrepair as to render the part occupied by the tenant untenantable, either by dilapidation or because the premises are thereby rendered unhealthy, as if he permits a drain to remain stopped up, so as to emit unwholesome gases or unpleasant stenches, this act of omission amounts to an eviction, and the tenant may give up possession.”
    The same author says, continuing on same page: “So, too, if the landlord fraudulently conceals the facts that a building is unfit for habitation because of a deleterious stench proceeding from an unknown cause, it has been held equivalent to an eviction.” “But a distinction is made in this respect between the letting of a building that is unfit for occupation by reason of a cause affecting the health of the occupants, and one that merely produces annoyance and discomfort.” Wood’s Landlord and Tenant, p. 805.
   Garnett, J.

McCoull leased certain premises to Herzberg for a dwelling, the term beginning September 10, 1885, and ending April 30, 1887. The tenant took possession the first day of the term, and occupied the premises until a few days after the 1st day of January, 1886. In ¡November, 1885, an offensive smell was discovered in the house, which continued to appear at intervals, until Herzberg felt obliged to vacate the premises on that account, and he did remove therefrom in the following January. He paid the rent to January 1,18S6, but refused to pay any rent accruing thereafter.

The action below was for the installments of rent, falling due for January, February and March, 1886. The sole defense interposed was the offensive smell, which was alleged to have made it necessary for the defendant to leave the house. It is conceded that the smell came from the sewer in the demised premises. ¡Neither "artifice, contrivance nor fraudulent representation is charged against the plaintiff. He acted in entire good faith, having had the premises, including the sewer, thoroughly overhauled and repaired just before the letting to defendant, and had no reason to believe that any defect existed, which would interfere with the health or comfort of any occupant of the building. The landlord in such case is not an insurer, unless the lease by its terms makes him such. There is nothing in the lease to the defendant which affects the question here made. It is the settled doctrine that there is no implied contract on the part of the landlord that the demised premises are tenantable, or that they will continue so during the term. Blake v. Ranous, 25 Ill. App. 486. Nor is the landlord bound to repair unless he has expressly agreed to do so in the lease or contract of hiring. The defendant might have protected himself against the consequences now in sight, by agreement with the plaintiff, but the court can not make such an agreement for the parties.

[Opinion filed March 24, 1890.]

The judgment is in conflict with the views here expressed, and for that reason is reversed and the cause remanded.

Reversed and remanded.

Upon Petition for Rehearing.

Gabnett, J.

The doctrine of this court is that an action at law to recover rent covenanted to be paid by lease under seal, can not be met by the defense that the lessee was induced to execute the lease by fraudulent representations as to the character or surroundings of the premises. They merely relate to the nature of the consideration which the lessee is to receive.

The question was decided in Johnson v. Wilson, opinion filed in this court, December 2, 1839, after mature consideration, and the rule was afterward affirmed in Little v. Dyer, at the same term. As the judgment in this case contravenes that rule, it must be reversed and the cause remanded. .

Reversed and remanded.


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    John O’Brien and George Green v. Henry H. Graham et al.

      Mechanic's Lien—Material Supplied—Sec. 31, Chap. 82, R. S.—SubContractor—Architect's Certificate—Personal Decree—Notice.

      1. Upon a bill filed by sub-contractors for a mechanic’s lien, this court holds that the same was properly dismissed for the reason that the statutory notice was not served upon the owner oE the building in question, within the time required by Sec. 31, Chap. 82, R. S.
    2. No personal decree is authorized by the statute when there is a failure in the effort to establish a lien.
    [Opinion filed October 23, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Mr. Levi Sprague, for appellants.
    Mr. T. H. Hood, for appellees.
   Garnett, J.

In 1886, one William Dunning agreed with Henry H. Graham to make certain alterations in a house or premises in Chicago, and afterward, about June 1, 1886, made a bargain with O’Brien and Green, appellants, for lumber to be used in the execution of the work. The lumber was to be delivered as required, during the months of June, July, August and September of -that year, and paid for as any portion of it was delivered. In pursuance to the subcontract, appellants made several deliveries of lumber prior to August 10, 1886. The material so delivered was all used in the work described, the total value thereof being 8268.80. By the agreement between Dunning and appellants they were to draw their pay on architect’s certificates. To satisfy them for the 8268.80, Dunning procured a certificate for 8300 from the architect August 7th, and delivered it to them on August 10, 1886. At that time, Graham suspected the architect of too much partiality toward Dunning on account of accommodations in the way of loans of money which Dunning had made him. The result was that the architect was then discharged and Graham commenced to superintend the work himself, upon the agreement with Dunning that he should receive no more money unless it should be ascertained on completion of his contract that it had cost less than the original contract price. Appellants thereupon became dissatisfied and refused to deliver any more lumber on the credit of Dunning. An agreement was then made between appellants and Graham, by which he was to pay them for all the lumber for the completion of the work. In pursuance of that agreement appellants delivered the lumber necessary to finish the alterations in the buildings, Graham paying them for all that was so delivered on his contract.

Appellants filed their bill for a mechanic’s lien on the premises for the amount remaining unpaid to them on account of the lumber furnished before August 10, 1886. The Circuit Court found appellants not entitled to a lien and dismissed the bill. For all the goods delivered before August 10, 1886, appellants were sub-contractors. As such they could only perfect their lien by serving the statutory notice upon Graham within forty days after payment became due to them, as required by Sec. 31, Chap. 82, R. S.

In fact, the notice was not served until October 8, 1886, which was too late to preserve the lien. The question of personal liability of Graham by reason of his alleged promise to appellants to pay the amount of the certificate for $300,-is not of importance in this proceeding, as no personal decree is authorized by the statute when there is a failure in the effort to establish a lien. Sprague v. Green, 18 Ill. App. 476. The decree is affirmed.

Affirmed.


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    Allemania Fire Insurance Company v. Willys G. Peck et al.

      Fire Insurance—Loss—Recovery upon Policy—Conditions—Failure to Bring Suit within Time Specified—Inducements to Adjustment—Special Findings—Evidence—Appeal.

    1. On a second appeal, questions decided on the former appeal in the same case will not be reconsidered.

      2. If a part of the time allowed under the conditions of an insurance policy for the bringing of suit upon a loss, is consumed in negotiations touching a settlement, the time so occupied should be added to the period specified therein.
    [Opinion filed October 23, 1889.]
    In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Myron H. Beach and W. P. Thornton, for plaintiff in error.
    Messrs. Flower, Smith & Musgrave, for defendants in error.
   Gary, P. J.

This case was before this court in 1886, and the facts, except upon the new question now presented, are reported in 20 Ill. App. 431. After the case returned to the Superior Court a new replication was filed to the second plea, alleging that the plaintiffs and the defendant were carrying on negotiations for the settlement and adjustment of the claim, and the defendant was holding out reasonable hopes for an adjustment, and thereby deterred the plaintiffs from commencing suit until the day it was commenced. And in answer to a special interrogatory, the jury have found that the company did hold out such reasonable hopes of an adjustment or compromise to the plaintiffs as to deter them from bringing this suit within the six months limited in the policy. The only question now open for discussion is whether the evidence supports the finding.

The doctrine is familiar that on a second appeal, questions decided on a former appeal in the same case, will not be reconsidered. Smyth v. Neff, 123 Ill. 310.

The negotiations relied upon were with the general agent of the company. They were had in personal interviews and by letters, the last letter from the agent, dated January 8, 1885, containing among other things, this:

“In regard to the Allemania, they claim that their policy was absolutely voided by reason of the violation of article 8 of section A. I have had several talks with the vice-president and the best terms that I can make will be to pay $500 on the policy, I can not get them to admit of any liability, and they write me that they do not consider the company holden for anything. The case appears to me to be such a plain one that I would advise your acceptance of the offer. 1 want to got the case closed some time, and I know you do. Please advise me at your earliest convenience.” There was time enough after that letter, which was the last step in the negotiations) no reply having been made to it, to have commenced the suit within the six months. Ho authority is cited as to what diligence, in order to avoid the bar, a policy holder of such a policy as this must exercise in bringing suit after negotiations are broken off. Considering that one month may not, in many cases, be unreasonably consumed in making the proofs of loss, and that the company has sixty days thereafter in which to pay, and that thereby the holder really has, under the terms of the policy, but about three months in which he may sue, the condition that he shall sue only within six months after the fire has occurred, is sufficiently stringent; and if during any part of that time the company deters him from suing he ought to have as much added to the original time.

It is not necessary to recite all that took place in the negotiations. They were all in the same spirit as the letter quoted, and it would have been quite inconsistent with that spirit for the holders of the policy to sue for a loss which the company was endeavoring to adjust and compromise, by paying a part, so long as from the conduct of the company there was reasonable ground to expect that the company would make terms that would be preferable to a suit. In the Lebcher case, 20 Ill. App. 450, the negotiations occupied less than three months, and the suit was not begun until more than eighteen months after the fire. In that.- case the limitation in the policy was one year. Upon the question here, that case has no bearing, as the suit was instituted on the forty-eighth day after the last letter. Whether the former decision of this court was correct can be made a question before the Supreme Court.

In that part of the case open to review here there is no error, and the judgment is affirmed.

Affirmed.


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    City of Chicago v. Mary A. Chase.

      Municipal Corporations— Negligence — Defective Sidewalk — Personal Injuries—Notice of Condition on Part of Authorities—Pleading—JSvidence —Variance.

    1. In an action against a municipality for the recovery of damages for injuries suffered through a defective sidewalk, this court holds that there was no material variance between the plaintiff’s proof and the allegations set forth in her declaration, and declines to interfere with the verdict in her behalf.
    2. Damages in the sum of $2,000 for the breaking of a leg of a woman sixty-six years of age, held to be reasonable in the case presented,
    [Opinion filed October 28, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. George F. Sugg, C. S. Cameron and. W. E. Hughes, for appellant.
    Mr. John Gibbons, for the appellee.
   Moran, J.

Appellee recovered a judgment in this case against the city for the sum of $2,000 for an injury received by her, by her foot being caught in a hole in the sidewalk, which caused her to fall over and break her leg. The evidence in the record clearly supports the verdict as to the fact of the injury. It is shown that appellee was walking along the sidewalk on the north side, east of Oakley street, in the night time. That snow covered the walk, and that a path was trodden wide enough for one person to walk on. That appellee in walking along said trodden path slipped, and stepped with one foot one side of said trodden path; that her foot went down through a hole in the sidewalk, which hole was hidden from view by the snow which covered the walk. These facts were uncontradicted. The evidence tended to show that the sidewalk at the point where the accident occurred was old and out of repair, and for a period of from a month to half a year before the accident there were planks missing and holes and spaces in the sidewalk, caused by planks having been broken, and though there was some contrariety in the evidence on this point, we think the evidence abundantly supports the conclusion that the sidewalk was in a dangerous condition, and had been so long enough to charge the city with notice. As to the damages the injury was shown to be severe, and though not permanent, the foot was subject to pains, and gave more or less annoyance up to the time of the trial, and with a person of appellee’s age (sixty-six years) will probably continue to be painful at times as long as she lives.

The verdict is large, no doubt, but we do not feel at liberty to reverse the case on that ground.

Counsel for the city urge quite strenuously that the case should be reversed, for the reason that there is a variance between the manner of the injury as proved and as described in the declaration.

The declaration, it is said, alleges that accumulations of ice and snow rendered the sidewalk uneven, ridgy and hubby, and that there was no proof of that allegation. The allegation is superfluous. It was not necessary to make any such allegation to support the cause of action, nor is the allegation essentially descriptive, or so connected with material averments that it can not be separated. The very ground of the action is the bad and unsafe condition of the sidewalk. The many faults in it as alleged are that planks were broken, warped, loose, uneven and removed. Proof was that appellee stepped into a hole in the sidewalk. It does not clearly appear what caused the particular hole into which she stepped, but it is not alleged specifically how it came; therefore, if the evidence would justify the finding that it was either from a plank being broken or warped, or loose, or removed, there would be no variance.

This differs from City of Bloomington v. Goodrich, 88 Ill. 558, cited by counsel. There the sole allegation was that some of the planks were broken, so that large and deep holes were in the walk, and the proof showed that none of the planks were broken and that the only defect was that two planks were removed from the walk.

The declaration in the case at bar is not well drawn, is involved and prolix and therefore defective in form, and by no means a model of concise and definite pleading; but it is good in substance, and contains no faults that would authorize the arrest of the judgment, or the reversal of the case on error

It is unnecessary for us to discuss in detail the errors alleged to have been made in giving and refusing instructions. It is sufficient to say that we have examined the instructions and considered the points of error alleged, and that we are of opinion that no error was committed in that regard. The judgment of the Superior Court will be affirmed.

Judgment affirmed.


author: Gaby, P. J.

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    Herbert M. Kinsley v. Francis L. Charnley.

      Master and Servant—Architect—Exclusive Attention—Extra Compensation—Contract under Seal—Parol Contract—Guaranty.

    1. A contract, under seal can not be varied by parol.
    2. For the payment of money, a contract to see it paid is, when another is to pay it, a guaranty.
    3. Extra compensation can not be claimed for doing the work in question, not better than the contract calls for, but better than it otherwise, would have been done.
    [Opinion filed October 28, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Frank J. Loesch and Charles A. Allen, for appellant.
    Messrs. Tenney, Hawley & Coffeen, for appellee.
   Gaby, P. J.

This was an action of assumpsit brought by the appellee against appellant, to recover for services alleged to have been performed as architect and superintendent of a certain building erected in the year 1885, by appellant, in the city of Chicago.

In November, 1884, appellant and appellee entered into a written contract, which was as follows:

“ Whereas, Herbert M. Kinsley is about to erect a building on Adams street, in the city of Chicago, upon the following-described lot, to wit: The east one-half of lot seven (7), block one hundred and twenty (120), School Section addition to Chicago, in the county of Cook and State of Illinois, to be used as a restaurant and generally in his business, and for the purpose of aiding in such work is desirous of securing the services of an architect.
“Now, therefore, it is understood and agreed by and between the said Herbert hi. Kinsjey and Francis L. Charnley, that the said Charnley shall make and draw the plans, specifications and drawings for the said building; the specifications to be such as can be used by the workmen erecting said building; the said Charnley is to superintend the building and see that the contractors for each and every portion therein shall complete their .work in a workmanlike and satisfactory manner with due diligence; and he shall draft all contracts and specifications between the said Kinsley and said contractors, and shall see that the said building is fully completed in aecordence with the plans, specifications and contracts so drawn, for all which service the said Charnley shall receive a compensation of three per cent, upon the amount of the cost of said building.
“Said Kinsley reserves the entire control of the contracts to be made, so far as the parties to the same shall be concerned and the amounts to be paid.
“And it is further agreed, in case the said Kinsley’s lessor shall not secure to him the possession of the premises above described, on or before the 23d day of February, A. D. 1885, that then and in that event this contract shall cease, and the compensation to said Charnley for so much work as he then shall have done shall be the sum of $500.
“In witness whereof, the parties hereto have hereunto set their hands and seals this day of November, A. D. 1884.
“F. L. Charnley, [seal.]
“H. M. Kinsley. [seal.]”

The total cost of the building referred to in the above contract was 8146,571.04.

The controversy arises over the claim made by the appellee for an extra two per cent, upon the 'cost of the building, which claim, as he states in his testimony, stands upon the following circumstances:

“Q. State whether or not yon made any other or additional contract or agreement with Mr.- Kinsley than the one that has been introduced in evidence. When ivas it, and where was it \
“ A. It was a verbal agreement. It was about the time or immediately after the roof was put on; I was going along Dearborn street; it was in July—soon after the middle of July; I think it was in 1885. I saw Mr. Kinsley across the street and he came over and said to me : ‘ Charnley, I don’t believe we are ever going to get into that building in November, and I must open in November because then my harvest commences, and I wish to open under favorable circumstances.’ He said: CI don’t believe they are going to get that done in November. The only way they will get it done will be for you to go there and give your whole time and attention to that building, because if j’ou don’t we will never get in there in that time, and if we don’t get in there in November, we might just as well stop now.’ I told him I could not very well do that because I would have practically to drop my other business; I told him I ivas doing some work for Chapin. Mr. Chapin was building his house at that time; he wanted me to give my attention to his building. Kinsley said be would see Mr. Chapin and that he was willing to pay me for it. He said: ‘I must have that building done in November, and I want you to give your whole time to it.’ ‘Well,’ I said, ‘If you are willing to pay me for it, and Chapin is willing to relieve me of the personal superintendence of his building, I will do it.’
“ I told him I never had any doubt but that the building would be completed according to the contract. I went there to the building. Kinsley got a boy to run errands for me and he got a desk there for me, and after we got the roof on I made my office practically in that building. After this conversation with Kinsley I was at the building all day, from the time we got the roof on until we got through; the building was ready to open the 15th of November.”

The contract is under seal and therefore can not be varied by parol. K. & S. W. R. R. v. Fitzgerald, 17 Ill. App. 525, and I. C. R. R. v. B. & O. R. R., 23 Ill. App. 531, and many cases cited in those.

The contract provides that the appellee shall<l superintend the building and see that the contractors for each and every portion therein shall complete their work in a workmanlike and satisfactory manner, with due diligence.” It bound the appellee to do whatever was in his power to make the contractors do their work as well and as quickly as their contracts required. Literally read it made him a guarantor that they would do so.

For the payment of money, a contract to see it paid is, when another is to pay it, a guaranty. But it is not necessary to so construe this contract.

The claim of the appellee is, in effect, that he took more pains to perform the contract he had made, than he would have done if the appellant had not urged him to do it. There is nothing in the case indicating that the work was done better or quicker than the contractors had engaged to do it.

That a contract, whether sealed or not, does not preclude compensation for extra work, is admitted; but that extra compensation can be claimed for doing, not better work than the contract calls for, but better than otherwise would have been done, is not the law.

All the evidence of custom of architects, for the purpose of construing the words of the written contract, was incompetent. Sigsworth v. McIntyre, 18 Ill. 126.

The judgment must be reversed and the case remanded.

Reversed and remanded.


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    City of Chicago v. Francis Colman.

      Municipal Corporations—Negligence—Defective Sidewalk—Personal Injuries—Damages—Excessive Verdict—Evidence—-Burden of Proof— Instructions—-New Trial.

    1. An instruction in the absence of evidence upon which it can be based should not be given.
    2. In an action brought for the recovery of damages from a municipality, for injuries suffered through a defective sidewalk, this court holds that in view of the evidence the verdict for the plaintiff in the sum of $4,000 was excessive, and that the trial court erred in refusing to grant the defendant’s motion for a new trial for that reason.
    3. In actions of this character the burden of proof is upon the plaintiff, to show not only such circumstances as make the municipality answerable for the injury sustained, but also the character and extent thereof.
    [Opinion filed October 28, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. J tTLius S. Grinnell, Judge, presiding.
    Mr. George F. Sugg, C. S. Cameron and W. E. Hughes, for appellant.
    Messrs. Case, Judson & Hogan, for appellee.
    Our Supreme Court has held in Christian v. Irwin, 125 Ill. 619, that “ the amount of damages a party may have sustained from a personal injury is a question of fact.’-'
    This court has wisely said in Anglo-American P. & P. Co. v. Bair (not yet reported): “In truth, money is no equivalent for such injuries, but it is the only reparation the law can give, and the amount must.be left to a jury to fix, subject to correction in case of abuse.” And again in Wilcox v. Bail-way Co. (not yet reported), this court said : “ The damages awarded are large, that is, a large sum of money—$15,000. Are they more than compensation ? If the appellee is entitled to anything he is entitled to full compensation. Is that limited to making good the probable pecuniary loss to him, for having lost one leg to go upon, either natural or artificial, or shall other deprivations which can not be recited without the use of language which excludes arithmetic, be taken into account ? His life is wrecked, whether for business or pleasure. Hope is denied him. By the various tables of mortality at the time of the trial his expectation of life ranged from forty to fifty years. Where ‘ suffering in body and mind is the result of injuries caused by negligence, it is proper to take them into consideration in estimating the amount of damages.’ Of the amount, under the facts, the jury were the sole judges, and where no other evidence of prejudice or passion appears in the finding, courts seldom set aside a verdict for excessive damages in an action like this. The court will not take the responsibility of determining that the damages are exorbitant.” Citing Railroad Co. v. Simmons, 38 Ill. 242; Railroad Co. v. Stables, 62 Ill. 320; Railroad Co. v. Martin, 111 Ill. 219; Railroad Co. v. Holland, 18 Ill. App. 418.
    In Railway Co. v. Barrett, 16 Ill. App. 30, the Appellate Court of the Second District lays down the rule, that “ where pain and suffering are recognized elements in assessing damages for personal injuries, there can be no certain rules for their admeasurement, and consequently the law has let the assessment to the sound judgment of the jury, guided by proper instructions from the court, and before a court should interfere with the findings, by putting itself in the place of the tribunal, primarily established by the law to determine this question, it ought to be well advised that such verdict is not the result of the calm, dispassionate judgment of the jury, but results from some improper motives or influences, and that injustice would be done if the verdict should be allowed to stand.”
    This rule was approved by the Appellate Court of the Fourth District in Railway Co. v. Frazier, 26 Ill. App. 440.
    In Whitcofsky v. Weir, 32 Fed. Rep. 307, $4,000 was held not excessive damages for the loss of a hand.
    In Reed v. Railway Co. (Iowa), 37 FT. W. Rep. 149, a verdict for $8,250 was not disturbed where it was shown upon the trial that the plaintiff, a man of sixty-five years, was struck by a train, thrown from his wagon and that several of his ribs were broken, that his lung was punctured, which caused great suffering and confined him indoors for several weeks, and that the injuries were apparently permanent.
    A verdict for $6,933 awarded to a woman for personal injuries who had been in good health, where the evidence as to the nature and extent of the injury was conflicting, but tended to show that she had received internal injuries resulting in uterine troubles, from which she was suffering at the time of the trial, was held not excessive. Railway Co. v. Lee (Texas), 7 S. W. Rep. 324. $5,000 for the loss of one eye not excessive: Johnson v. Railway Co., 9 S. W. Rep. 790; $6,500 for loss of eye, not excessive: Railway Co. v. Able, 9 S. W. Rep. 871; $8,000 not excessive for injury causing permanent stiffness of ankle joint: Henry v. Railway Co. (Iowa), 39 N. W. Rep. 193; $5,500 not excessive for temporary injury; no loss of limb: Karasich v. Hasbrouck et al., 28 Wis. 569; for the loss of hand and other injuries $4,700 was deemed not only not excessive but as quite moderate: Railroad Co. v. DeBray, 71 Ga. 406.
    And so we could go on almost indefinitely, citing case after case where verdicts ranging in amounts from $5,000 to $50,000 have been held to be not excessive. Railroad Co. v. Alberti, 43 Hun, 421; Railroad Co. v. Thompson, 64 Miss. 584; Railroad Co. v. Ketcham, 33 La. Ann. 777; Groves v. Rochester, 39 Hun, 5; Railroad Co. v. Moore, 34 Kan. 197; Funston v. Railroad Co., 61 Iowa, 452; Railroad Co. v. Robinson, 48 Cal. 409; Railroad Co. v. Young, 19 Kan. 438; Railway Co. v. Porfert, 10 S. W. Rep. 207; Railway Co. v. Rosenweig, 4 Cent. Rep. 712.
   Gary, P. J.

This is an action to recover damages for personal injury from the breaking of a plank in a sidewalk, resulting in the leg of the appellee going through the hole, and the knee-cap striking the edge of the plank in front. .The leg was bruised, the appellee lost three or four weeks’ time, has suffered a good deal of pain, and was not cured at the time of the trial.

The only evidence as to the probable future condition of the appellee was from the physician, who said that the present swelling was the result of inflammation, and that he thought that the appellee could be cured, bnt how and in what time is somewhat vaguely stated in his testimony.

The court instructed the jury that if they found from the evidence that the injury was permanent and incurable, they should take that into consideration in assessing the damages. The jury found for the appellee, $4,000.

In looking at all the evidence it is clear that, as compensation for past expense, loss of time and suffering, the verdict is excessive. It could only be justified as a compensation for future disability to some considerable extent. There is no doubt that bodily pain and suffering is a proper item of damages in such cases. Bor is the evidence necessarily limited to suffering which is past, where the proof renders it reasonably certain that future pain and suffering is inevitable. Damages are to be proved, and none can be allowed except such as are shown by the proof to be, at least to a reasonable degree, certain.” Curtis v. R. & S. R. R., 18 N. Y. 535. The instruction was excepted to, and one ground of the motion for a new trial was the excessiveness of the verdict, the denial of which motion was also excepted to.

The burden was upon the appellee to show not only such circumstances as made the city answerable for the injury he had sustained, but also the character and extent of the injury, so that the jury should have other grounds for such a verdict than that the plaintiff was an individual to whom the sum would be very convenient, and the defendant a large city to whose gross outlay it would be an almost inappreciable addition; and that it might be conjectured, though not proved, that his injury was serious and permanent.

The views above expressed render it needless to examine questions of variance and criticism upon instructions, the grounds for which can be removed or avoided upon another trial.

For the error in giving an instruction without evidence to base it upon, and for that of not granting a new trial on account of the excessive damages, the judgment is reversed and the cause remanded.

Reversed and remanded.