text:
    Jesse B. Gould v. Vinton E. Howell.

      Replevin—Sale—Conditional Delivery—Unpaid Check—New Trial— Instruction.

    A horse attached as the property of another, may he replevied by the person selling him upon the understanding that title should not pass until check given for purchase price should be paid, any time previous to payment.

      [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Messrs. Kerrick, Lucas & Spencer, for appellant.
    Mr. John T. Lillard, for appellee.
   Wall, J.

This was replevin for a horse brought by appellant against appellee. Judgment was in favor of the latter, who, as sheriff, had levied upon the property under a writ of attachment against one Johnson.

Appellant, being the owner, had agreed to sell the horse to Johnson, but the price, $225, was unpaid, and it was understood the title should not pass and the sale should not be complete until a check given by Johnson for that sum upon a bank in Missouri should be honored. The horse had been brought by appellant to Bloomington and put in the livery stable of one Millinger, and while this was the place where delivery was to be made, yet the evidence warrants the conclusion that it was not intended to perfect the sale until payment was assured, and that if it can be said there was a delivery it was conditional only, and that Johnson had no right to remove the horse until appellant was satisfied. Pending this situation the levy was made. Under the circumstances, if, at that time, the vendee had assumed the rights of an owner, the vendor might well have maintained replevin against him. It is suggested the vendor could not rescind without returning the check. There was no occasion for rescission. The sale was inchoate and the title and right to possess were in the vendor. It was all conditioned upon the payment of the check, and until then the vendee had no right to take the horse from the stable. His creditors could occupy no better position than he could. Schweitzer v. Tracy, 76 Ill. 345.

The appellant was not required to litigate with the Missouri bank as to its liability to pay .the check. He could hold his property if it was not paid.

We are of opinion that the court erred in giving instructions No. 5, 6 and 7, asked by appellee, and in refusing the motion for new trial. The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Peoria, Decatur & Evansville Railway Company v. Mary A. Duggan et al.

      Injunctions—Railroads—Judgment—Justice Courts—Jurisdiction of— Summons—Improper Return—Sec. 21, Chap. 79, R. S.

    Where, in an action against a railroad company in a justice court, the summons was served properly, and judgment was rendered against the company, equity will not enjoin the collection thereof on the ground that the return on the summons was not properly made by the constable.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Moultrie County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. Stevens & Horton and John R. Eden, for appellant.
    Messrs. Connolly & Mather, for appellees.
   Wall, J.

This was a bill in chancery filed in the Circuit Court of Moultrie County by the Peoria, Decatur and Evansville Railway Company, to enjoin the collection of a judgment rendered against the complainant in favor of Mary A. Duggan, by a justice of the peace of said county, for $114 and costs. The bill alleged that the judgment was void because the justice had no jurisdiction of the defendant therein, the supposed want of jurisdiction being based upon an insufficient return of service as it was regarded by the complainant. That return was as follows:

“I served the within summons by delivering a true copy thereof to Thomas E. Mayes, agent of the P. D. & E. Ry. Co., the president of said company not being found in my county,” etc.

The bill as amended averred that the complainant was not indebted to said Duggan for any part of the claim upon which said judgment was founded, and that it was never in any manner served with process in said cause, and never had any opportunity to defend against said claim. The bill was answered and the cause was heard upon the merits. A final decree was entered dismissing the bill at the cost of complainant. The record is brought here by appeal, and error is assigned upon the decree. It is urged, first, that the return was insufficient, and therefore the judgment was void.

It is provided by Sec. 21, Chap. 79, relating to proceedings before the justices of the peace, that “An incorporated company may be served by leaving a copy of the summons with its president, secretary, superintendent, general agent, cashier or principal clerk, if either can be found in the district in which the suit is brought; if neither shall be found in the district, then by leaving a copy of the summons with any director clerk, engineer, conductor, station agent, or any agent of such company found in the district.” It will be noted that this section differs somewhat from Sec. 4 of Chap. 110,relating to practice in courts of record, which provides for service upon the president if found in the county, and if not, upon any other officer or agent who might be so found. The section relating to practice before justices of the peace seems to require that the service should be had upon the president, secretary, superintendent, general agent, cashier or principal clerk, and if none of these can be found, then upon one of the other officials or agents named, and to make the return good in form when service was had upon one not of the list first named, it should appear that none of these in that list could be found. The return was therefore defective, and upon the face of the record there was, technically at least, no jurisdiction of the defendant in said judgment.

It appears from the evidence that Mr. Mayes, upon whom the writ was served, was the station agent of the company at Dalton City, where the suit was brought before a justice of that district or precinct; that the president of the company resided in Chicago; that the general offices of the company were in Peoria; that the general officers of the company had their headquarters there, and that they were not at Dalton City on the day the writ was served unless possibly they passed through, and that Mr. Mayes had no recollection of seeing them, or any of them, on said day, and that he sent the copy of summons, which was given to him by the constable, to the general manager of the company. Though the return was informal, there was in fact good service made in the mode and by the officer as the statute provides, and the fact of service was made known to the general manager of the company. Had the company interposed an objection before the justice, the return could have been made formal, but that would have added nothing to the notice the company received. It received the notice which the law requires and it had ample opportunity to make any defense it had to the demand.

Where a judgment is obtained by fraud, accident or mistake, without notice to the defendant, or if he has notice under such circumstances as would render it unreasonable to hold him bound by the notice, and where the judgment is itself unjust and inequitable in whole or in part, equity will grant necessary relief by enjoining so much of the judgment as ought not to be collected. But all these elements must co-exist and it must also appear that the complainant has not been negligent and that his laches or omission to protect or defend himself has not materially caused the condition of things of which he complains. In Freeman on Judgments, Sec. 495, the general doctrine as to want of notice is thus stated:

“ If it satisfactorily appears that the defendant was not summoned and had no notice of the suit, a sufficient excuse is shown for his neglect to defend and equity will not allow the judgment, if unjust, to be used against him.” We quote from Pomeroy’s Eq. Jur., Vol. 3, Sec. 1361: “It is not such a special equitable ground of interference that the party has, by his own act or omission, failed to effectually avail himself of a valid defense at law, nor that the court of law has decided a question of law or fact erroneously;” and again Sec. 1364: “ That where the legal judgment was obtained or entered through fraud, accident or mistake, or where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it by fraud, mistake or accident, and there has been no negligence, laches or other fault on his part, or on the part of his agents, then a court of equity will interfere and restrain proceedings in the judgment which can not be conscientiously enforced;” and in the note to the latter section it is said that a party seeking the aid of a court of equity must show diligence and that a judgment will not be enjoined for any defense or right which could have been asserted in the court of law.

If the party by the use of diligence could not have prevented the judgment or availed himself of his defense, and has by fraud, accident or mistake had a judgment rendered against him, he must also show that the judgment is in whole or in part inequitable; for if it is not so, equity will not interfere but will let the plaintiff enjoy whatever advantage the judgment may give him. Freeman on Judgments, Sec. 498; C. & St. L. R. R. Co. v. Holbrook, 92 Ill. 297; Colson v. Leitch, 110 Ill. 504.

We have been referred to no case where, as here, there was really good service, though by an insufficient return it appeared otherwise, and probably no such case can be found.

In the amendment to the bill the complainant alleged “ that it never was in any manner served with process and never had any opportunity to defend against such pretended claim;” and thus it states what must be regarded as a necessary condition to the exercise of equitable jurisdiction, that is, that there was no notice and no opportunity of defense.

We are not to be understood as saying that if there had been no attempt at service the defendant would be bound to attend and enter his appearance because he might happen to know that the case was set for trial at a particular time and place.' We merely pass upon the case before us, which is that there was due service in fact, but no proper return thereof. It would not comport with the principles and maxims which prevail in equity that a party who is actually served may allow a judgment to be rendered against him without objection and then seek to be released therefrom on the ground that by the mere mistake or oversight of the officer serving the writ, the return does not show proper service. The neglect of the plaintiff to have such return amended can not help the matter. It is not the course of equity to afford relief on such merely technical grounds, which might have been obviated by the act of the complainant and which did not prevent him from manifesting whatever defense he had. On the contrary, the relief afforded in equity often proceeds upon the ground that by some technical rule an inequitable result has been accomplished. It never proceeds upon the ground of a mere technical objection to legal proceedings where the complainant was not precluded from a legal defense. To grant relief upon the case presented by this record would reverse fundamental principles of equity jurisprudence.

In considering the point of diligence we leave entirely out of view the question whether the judgment might have been set aside upon a common law writ of certiorari.

As to the merits of the ease we find that excepting one item of $18.75 the plaintiff had apparently a good equitable, if not a legal demand. As to that item the defense of res judicata might properly have been made. To this extent, and perhaps further, the complainant might have successfully interposed objections in the court of law.

That it did not make such resistance was not because it had not the opportunity to do so, upon due notice. In the case of C. & St. L. R. R. Co. v. Holbrook, supra, is was urged that the judgment was the product of false testimony, but the Supreme Court held it by no means followed that appellant was thereby entitled to relief, saying, “ When the railroad company was served with process, if it had a defense, the law required it to appear and set up that defense and establish it by evidence. Had this course been pursued no judgment would have been rendered. But where a party has been served with process and neglects to appear and defend and suffers judgment to be rendered by default, it has long been settled that a court of equity will not relieve the negligent from such a judgment.” Hendrickson v. Henckley, 17 How. 443.

We are of opinion that the decree dismissing the bill was right, and it will be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Stephen H. Bowman, Adm’r, etc., v. John Neely.

      Negotiable Instruments—Note—Interest on Interest—Sec. 2, Act of 1814.

    A clause in a promissory note, execufed in this State, February 12, 1876, providing for “interest payable annually, and if not so paid to become principal and bear the same rate of interest,” was not usurious, and was within the contracting power of the parties.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Jersey County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. T. S. Chapman and A. M. Slaten, for appellant.
    In the case of Hoyle v. Page, reported in 41 Mich. 553, opinion by Justice Cooley, on note providing for payment of $1,400 on or before ten years after date, “with annual interest at the rate of ten per cent, per annum, and in case said interest is not paid at the end of each year it is expressly agreed that said interest shall become principal and draw interest at the rate aforesaid,” which is in substance and effect the same provision relied upon in this case to collect compound interest, the court say: “At the date of this obligation there was no statute in this State expressly providing for the compounding of interest and it has been generally believed that it was not competent without such a statute to make a valid contract in advance for interest upon overdue installments of interest. Such was the conclusion of Chancellor Kent at an early day.” Connecticut v. Jackson, 1 Johns. Ch. 13; Van Bauschooten v. Lawson, 6 Johns. Ch. 314. “And his conclusion seems to commend itself to the judgment of our people, as it did to that of judicial tribunals of other States.” Sparks v. Garregues, 1 Binn. 165; Stokely v. Thompson, 34 Penn. St. 210; Hastings v. Wasivall, 8 Mass. 455; Van Hermet v. Porter, 11 Met. 210; Ferry v. Ferry, 2 Cush. 92; Doe v. Warren, 7 Me. 48; Niles v. The Board, etc., 8 Blackf. 159; Grimes v. Blake, 16 Ind. 160; Leonard v. Villars, 23 Ill. 377.
    “ The judgment of Chancellor Kent has been recently criticized in New York, but it has been affirmed by a majority of the Court of Appeals after full discussion.” Young v. Hill, 67 N. Y. 162.
    Mr. J. S. Carr, for appellee.
    This annual interest was not an open running account, but was a sum certain, due at a definite time, on which, under the statute in force when this note was made, interest was allowable. Alcohol Works v. Sheer, 8 Ill. App. 370; Dobbins v. Higgins, 78 Ill. 442; Ditch v. Vollhardt, 82 Ill. 134; Maltman v. Williamson, 69 Ill. 423; Haight v. McVeigh, 69 Ill. 624; Clark v. Dutton, 69 Ill. 522.
    The latter case contained a very clear definition of the two classes, liquidated and unliquidated demand.
    This note and its force and effect is to be adjudicated upon the law in force at its date. Herring v. Woodhull, 29 Ill. 100.
    But if the special contract contained in this note is found to be unaffected or uncontrolled by any statute of this State, it is to be enforced strictly according to its terms. Parmlee v. Lawrence, 48 Ill. 343.
    See further, Gilmore v. Bissell, 124 Ill. 490; Harper v. Ely, 70 Ill. 586; Humphreys v. Morton, 100 Ill. 602; Scott v. Saffield, 37 Ga. 384; Hale v. Hale, 1 Cold. (Tenn.) 233; Brewster v. Wakefield, 1 Minn. 352; Bledsoe v. Nixon, 69 N. C. 81; Lewis v. Paschal, 37 Tex. 318; Sellick v. French, 1 Am. Lead. Cases, 650; Pawling v. Pawling, Yeates (Pa.), 220; Watterson v. Root, 4 Ohio, 373; Preston v. Walker, 26 Iowa, 205, 213; Mann v. Cross, 9 Ia. 327; Pierce, Ex., v. Rowe, 1 N. H. 179, 3 N. H. 40; Page v. Williamson, 54 Cal. 562; Greenleaf v. Kellogg, 2 Mass. 567; Cattin v. Layman, 26 Vt. 46; Capen v. Crowell, 66 Maine, 282; Craig v. Collender, 2 Minn. 350; Kent v. Brown, 3 Minn. 347; Cramer v. Lepper, 26 Ohio State Rep. 59; Calhoun v. Marshall, 61 Ga. 275; Kennon v. Dickens, N. C. Conference Rep. 357; Taliaferro, Ex’r, v. King, 9 Dana (Ky.), 331; Anktell v. Converse, 17 Ohio State Rep. 11; Brewster v. Wakefield, 1 Minn. 352; Mills v. Jefferson, 20 Wis. 54-65.
   Conger, J.

Appellee filed a claim in the Probate Court of Jersey County against the estate of Joshua Beely, deceased, which claim was based upon the following promissory note:

“$3,381.31. Jerseyville, Ill., Feb. 12, 1876.
“ One year after date, for value received, I promise to pay to the order of John Beely, thirty-four hundred eighty-one 31-100 dollars, with ten per cent, interest from date, at the banking house of Cross, Carlin & Go. Interest payable annually, and if not so paid to become principal and bear the same rate of interest.
“John Hopper.
“Joshua Neely.”

There were certain credits indorsed upon the note. The County Court allowed interest upon the principal alone. The case was appealed to the Circuit Court where judgment was entered for $5,532.46.

The court computed interest not only on the principal, but also on each annual installment of interest from the time it was due, according to the terms of the note to the date of the judgment. It is this holding of the Circuit Court that is assigned as error.

The authorities upon this question are not at all harmonious. In the case of Connecticut v. Jackson, 1 John. Ch. 13, Chancellor Kent says: “Even an original agreement at the time of the loan or contract, that if interest be not paid at the end of the year, it shall be deemed principal and carry interest, will not be recognized as valid. Such a provision would not amount to usury so as to render the contract connected with it illegal and void at law (La Grange v. Hamilton, 4 Tenn. Rep. 613, 2 H. Black. 144), but this court certainly, and perhaps a court at law, would not give effect to such a provision.”

In the case of Hoyle v. Page, reported in 41 Mich. p. 553, opinion by Justice Cooley, on note providing for payment of 81,400 on or before ten years after date, “with annual interest at the rate of ten per cent, per annum, and in case said interest is not paid at the end of each year it is express^ agreed that said interest shall become principal and draw interest at the rate aforesaid,” the court say: “ At the date of this obligation there was no statute in this case expressly providing for the compounding of interest and it has been generally believed that it was not competent without such a statute to make a valid contract in advance for interest upon overdue installments of interest. Such was the conclusion of Chancellor Kent at an early day.” Quite a number of other courts have followed the views above expressed; other cases make a distinction between a promise to pay interest upon interest, made at the time of the original contract, or after the interest becomes due, holding that the latter can be enforced, while the former can not.

A further distinction is made in some of the cases between an agreement like the one in the note in this case, and when the promise to pay interest is contained in separate instruments or coupons from the principal obligation.

In Brewster v. Wakefield, 1 Minn. 352, 69 Am. Dec. 343, the court say: “The rate of interest on money is a proper and lawful subject of contract.” * * * “As well might it be said that a tenant, holding over after the expiration of his term, should not pay rent at the rate reserved in the lease under which he entered, * * * as that the maker of the note under our statute be not liable to pay the rate of interest on his debt overdue, which he, by his promise, agreed it should bear before maturity. They both stand upon the same footing. The tenant refuses to surrender at the expiration of his term, and for that reason he will not pay the rent agreed upon in the lease, and insists upon a right to be discharged by payment of a less rate upon a mere legally implied promise to pay the value of the use and occupation; the maker of a note refuses to pay at maturity, and for that reason insists that he is discharged from his agreement to pay interest, and the payee entitled only to the legal and less rate. Such a principle and rule has never been tolerated between landlord and tenant, and never should be allowed to prevail between the promisor and promisee in a contract for the payment of money. The moral influences and effect of such a rule, if allowed to prevail, are in all respects deleterious and reprehensible. The rule, if applied to contracts made in view of our statute, offers a premium upon bad faith, and allows persons to reap rich harvests of wealth out of their violated promises and forfeited pledges; it allows them to avail themselves of benefits derived from their own wrongs, and to enjoy them. To such a doctrine I can not assent, in whatever form it may arise.”

In Bledsoe v. Nixon, 69 N. C. Rep., cited in American Reports, Vol. 12, p. 24, that court said: ‘‘When a certain sum of money is to be paid at a specified time, on failure to pay, the party is to be charged with interest; the" price for the use of money, like rent due for land or the hire of a horse, being the money of the one, which the other party is having the use of and should pay for.” * * * “ When there is an agreement set out in the note for the payment of interest annually or semi-annually, the maker is chargeable with interest at the like rate upon each deferred payment of interest in like manner as if he had given a promissory note for the same amount, is sound on principle. By this mode of computation compound interest is not given, but a middle course is taken between simple and compound interest. By computing interest in this way effect is given to the sfcipulation to pay interest at fixed times; whereas, if simple interest be computed, no effect whatever is given to the stipulation in regard to interest, and the court assumes the power to expunge it as surplusage, although it is manifest that the parties intended it to have some effect.”

In Lewis v. Paschal, Adm’r, 37 Texas, 318, which was an action to recover interest on interest accrued on a promissory note, “payable without defalcation or discount, with interest at the rate of ten per cent per annum payable annually from date,” this whole subject is ably discussed, citing Andrews v. Hoxie, 5th Texas, and the action was sustained, the court declaring the contract neither usurious nor against public policy, but a proper subject of contract. In 1 American Leading Cases, 650, Sellick v. French, it is said: 1st. An agreement to pay interest on interest is not usurious nor illegal. 2d. That the better opinion is, that at law, such an agreement made either at or after the time of the original contract will be enforced. 3d. That where there is an express stipulation that interest shall be paid at fixed times, as annually or at the end of each year, even if the principal be due at or before the first installment of interest is due, interest is to be charged upon the interest from the time it is payable.

In the case of Pawling v. Pawling, Adm’r, 4 Yeates’ Penn. Reports, 220, the subject of interest on interest is very ably discussed and the rule announced that a contract like that at bar would be sustained. In 3 Parsons on Contracts, 150, it is said: “We are aware of no case in England or in this country,' in which a contract to pay compound interest has been held to be usurious so as to become totally invalid.” And on page 153 it is said: “And for the reason that this aversion of our law to allow money to beget money, has of late years very much diminished, we do not think it absolutely certain that a bargain in advance for the payment of compound interest in all its facts reasonable and free from suspicion of oppression, would not be enforced at this day in some of our courts.”

In City of Aurora v. West 7 Wall. 82, the Supreme Court of the United States in passing upon the question whether dishonored coupons should bear interest, say:

“Being written contracts for the payment of money, and negotiable because payable to bearer and passing from hand to hand as other negotiable instruments, it is quite apparent on general principles that they should draw interest after the payment of the .principal is unjustly neglected or refused. Where there is a contract to pay money on a day fixed, and the contract is broken, interest, as a, general rule, is allowed, and that rule is universal in respect to bills and notes payable on time.” Gelpecke v. Dubuque, 1 Wall. 206. In Mann v. Cross, 9 Iowa, 327, which was a suit to foreclose a mortgage given to secure a note bearing ten per cent interest, payable annually, the court said: “Was he (the mortgagee) entitled to six per cent interest upon the interest annually due ? We think he was. The respondent was under a legal obligation to pay this interest at the end of the year; it was a Sum of money then due, without a contract fixing the rate of interest upon it, and for which he might have sued. He was, therefore, bound to pay its legal value which, by our law, in the absence of a written agreement reserving more, is fixed at six cents on the hundred.” See, also, Hersey v. Hersey, 18 Iowa, 24; Mills v. The Town of Jefferson, 20 Wis. 50. In the latter case, the court say: “ When a person agrees to pay interest at a specified time, and fails to keep his undertaking^ why should he not be compelled to pay interest upon interest from the time he should have made the payment ? If he undertakes to pay a sum at a given time, to the owner, and makes default, the law allows interest on the sum wrongfully withheld from the time he should have made such payment.” Our own Supreme Court in Leonard v. Adm’r of Villars, 23 Ill. 380, uses the following language: “To compute interest upon interest after its maturity, has by all courts, whether exercising equity or common law jurisdiction, been held to be compound interest, and in violation of law. This question has been frequently presented, and, it is believed, uniformly held to be unauthorized. We are not aware of any well considered case which has held there is an implied legal or moral obligation to pay interest upon unpaid interest after maturity.’

The case at bar is, however, different from the above, in two particulars. In this case there is an express promise to pay interest upon interest, and in the judgment of the Cir-

cuit Court compound interest was not allowed—interest only being allowed upon the annual interest due upon the principal sum, but none upon such interest accruing upon the annual interest, which would be required to make compound interest.

In Harper v. Ely, 70 Ill. 586, the court clearly recognizes the doctrine of the United States Supreme Court, that where installments of interest are evidenced by coupons, interest should be computed upon them, if they are not paid at their maturity. In Gilmore v. Bissell, 124 Ill. 490, the conrt say: “ The mortgagors had agreed to pay the interest on the mortgaged debt annually, and it was their duty to observe that agreement; but they failed to pay each year, as the interest became due. When the time, however, came to renew the debt, the mortgagors had the right, if they saw proper, to redeem their agreement, and pay interest on the interest; and their agreement to pay that interest was not illegal, nor did it render the transaction usurious. What was done was but the performance of a contract made by the parties, which they had a right to do.”

It appears, therefore, that the Supreme Court of this State has never passed upon the exact question presented by this record, but have held, first, where a note is given with interest payable annually, the payee may sue for and recover the interest at the end of each year. Walker v. Kimball, 22 Ill. 537. Second, that where such annua] interest is evidenced by coupons, interest should be computed upon them if they are not paid when due. Third, that when interest is not paid according to the agreement of the parties, they may, after such interest accrues, lawfully contract for such interest to bear interest.

We are inclined to think there is no substantial difference in principle, between a note like the one in this case, where the contract to pay a certain sum as interest annually is contained in the same paper with the contract to pay the principal sum, and one where the interest is secured by a separate instrument or coupon. In either case it is all one contract, executed at one time, and we think should be construed the same whether upon one piece of paper or many.

The fact that a coupon may be severed from the principal note and pass into other hands and thus give different persons rights, should not make any difference in construing the contract when executed, or so long as it remains entire in the hands of the original parties.

Nor do we see any good reason for saying that an agreement to pay interest upon interest may lawfully be made after the original interest is due, but not before. A contract tainted with usury can not be confirmed at any time while any part of the debt is unpaid, because it was illegal to make such contract originally; hence it would seem that if it be illegal to make a contract in advance to pay interest upon interest, it could not be regarded as legal to make such contract after there is a default in the payment of the original interest, as was held could properly be done in Gilmore v. Bissell, supra.

But when the statute on interest is considered it would seem there can be no doubt that the holding of the Circuit Court was right. Section 2 of the statute of 1874, which was the statute in force when the note was executed, provides: “ Creditors shall be allowed to receive at the rate of six per centum per annum, for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing.” Section 4 provides “ in all written contracts it shall be lawful for the parties to stipulate or agree that ten per cent per annum, or any less sum of interest, shall be taken and paid upon every $100 loaned, or in any manner due.” The latter clause, “or in any manner due,” seems to include the annual installments of interest in the note before us. They were due at a definite time; it was the duty of the debtor then" to pay them, and he had expressly provided at the time of making the note that if not so paid they should become a part of the principal and bear the same rate of interest. The maker of the note was authorized by this statute to make the exact contract that he did, and we see no reason, either inlaw or morals, why it should not be enforced as the parties made it.

In Ord on Usury, 86, it is said that “it is not illegal to stipulate for compound interest, or that interest as it becomes due shall be converted into principal, and carry interest,” though by the civil law this was not allowed. The judgment will be affirmed. Judgment affirmed.


text:
    Chicago, Burlington & Quincy Railroad Company v. Henry Florens.

      Railroads—Injury to Team—Crossings—Hate of Speed of Train in Absence of Regulation by Ordinance—Contributory Negligence—Failure to Look and Listen.

    1. In the absence of legislation or municipal regulation a railroad may adopt such rate of speed for its trains as it deems advisable, providing it is reasonably safe to passengers being transported.
    2. It is not the duty of an engine-driver, on nearing a crossing, to stop his train for the purpose of avoiding a collision with a team he may see approaching.
    3. In an action to recover from a railroad company for injuries inflicted upon a team at a highway crossing, this court holds that the defendant was not guilty of negligence in the premises, but that the plaintiff was negligent in failing to look for trains before driving upon the track.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Fulton County ; the Hon. J. C. Bagby, Judge, presiding.
    Messrs. O. F. Price and Frederick M. Grant, for appellant.
    Mr. H. W. Masters, for appellee.
   Wall, J.

The appellee recovered a judgment against the appellant for §110 for injuries inflicted upon his team in a collision with an engine running upon the railroad of appellant.

The plaintiff was engaged in hauling coal in wagons and had occasion to cross the railroad at a point where, by reason of the up grade of the wagon road, it was necessary to doub'o teams. He had thus taken one wagon over the crossing and while going over with the second, the train came along and collided with the team, killing two mules, and doing some damage to the wagon and harness. It appears that by reason of the peculiar situation as to embankments, etc., a train coming from that direction could be seen but a short distance by one standing on the track; but that, standing a few feet west of the track, it could be seen for three quarters of a mile or more. Plaintiff claims that he made an observation with the purpose to see whether a train was coming but a few moments before attempting to cross with the second wagon. He could neither see nor hear anything of the sort at that time, and he does not state that he made any further observa-, tion. It was a stormy day, clondv and windy, with some, snow. Plaintiff heard no signals until just as the train was upon him. There is no evidence that the usual signals were not given, nor that any one who was listening, or might have heard them if given, did not hear them. Incidentally two witnesses who were on the train speak of hearing the whistle sounded just before the collision, which was all the plaintiff heard.

On the part of appellant five witnesses—all trainmen—■ testified that the whistle was sounded for the crossing at the proper place, one-fourth of a mile before reaching it, and it also appears that the bell, which was of more than thirty pounds weight, was rung by steam from the time of leaving the last station, about two miles. It may therefore be said there is no question that the bell was rung, and upon the evi-. dence there can scarcely be any question that the whistle was sounded, as required by law, before the train reached the crossing. Hence, the plaintiff must recover, if at all, upon the allegation found in the first count of his declaration, that the engine and train were carelessly and negligently driven and managed, thereby causing the collision. Upon this allegation the plaintiff seems to rely, and it was prominently presented to the jury in the instructions given by the court at his instance. In support of this allegation proof was offered as to the speed of the train. Two witnesses who were riding in the caboose (it was a freight train) testified that the speed was extraordinary, thirty-five or forty miles per hour, as they supposed.

It appears that the train ran a considerable distance, possibly a half mile, according to plaintiff’s estimate, beyond the crossing before it stopped. It then backed up to the crossing. There was a down grade at the place. The trainmen put the speed at eighteen or twenty miles per hour, and say that it was a down grade; that it was usual to apply the brake on the rear car before starting down the hill, and that it was done on that occasion, and that as soon as the team was discovered going, or about to go, on the track, the stock alarm was sounded and every effort was made to avoid a collision. As there was a bridge and an embankment just beyond the crossing, it is difficult to believe that the engineer and fireman would neglect anything in their power to avert thejevident risk of a collision at a place of such danger.

The whole case is thus narrowed down to the speed of the train and the measure of negligence that may be predicated thereon. According to the estimates of the various witnesses the speed was somewhere between eighteen and forty miles per hour. There was no legal provision regulating the rate of speed at that place.

As was said by the Supreme Court in C., B. & Q. R. R. Co. v. Lee, 68 Ill. 582, “There is nothing in the charter of the company nor in the general laws of the State, which imposes any restraint as to the speed its trains may run.

“ Where not prohibited by municipal regulations it is apprehended the company may adopt such rate of speed as it shall deem advisable, provided always it is reasonably safe to the passengers being transported. It will be subject to no liability for the rate adopted if not otherwise at fault.”

To the same effect see W., St. L. & P. Ry. v. Neukirk, 13 Ill. App. 387; Same v. Same, 15 Ill. App. 172. If it be said if the train had been running at a lower rate of speed it could have been stopped in time to prevent the accident, we think the answer is that whether going at the highest or lowest estimated rate it would have been impossible to have stopped after the team was discovered to be in danger.

In C., B. & Q. R. R. Co. v. Damrell, 81 Ill. 453, the Supreme Court remark: “This court has frequently asserted the doctrine that it is not the duty of the engine driver on nearing a road crossing to stop his train for the purpose of avoiding a collision with a wagon and team he may see approaching the crossing.” Hence there would have been no duty to stop or attempt to stop until the team was seen to be going on the track and in danger, and if, when it so appeared, no possible effort would be sufficient to stop and avoid the collision, then there would, be no negligence in that respect.

We are unable to see how the rate-of speed, if too great,, can be regarded as the proximate cause of the accident. Again it is difficult to see how the plaintiff can be considered as in the exercise of ordinary care. It was a crossing of more than ordinary danger because an approaching train could not readily be seen from every portion at or near the track though, as already stated, by slight effort it was possible to get a view up the track for at least three quarters of a mile, and while the plaintiff said he had recently made an observation he had not done so just before he attempted to cross.

Since making that observation he had gone to the wagon and in attaching the extra team thereto he had been delayed by a difficulty in adjusting the connection so that some appreciable time, no one knows how long, had elapsed before starting to cross. That lapse of time was certainly more than enough to enable a train going at any ordinary speed to cover the space of track which was visible from any attainable point. Common prudence would have required that he again look before attempting to cross the track, going up hill with a heavily loaded wagon drawn by four horses. It was certainly within his power to have been perfectly safe and no reasonable excuse appears for his omission to protect himself by again looking and being sure that no train was near. It was his duty to do so. Hpon this point see C., B. & Q. R. R. Co. v. Damrell, supra, and the numerous cases there cited where the omission of such precaution is on the facts then in proof declared to be gross negligence.

W e think, under all the conditions here in proof and in view of the plaintiff’s familiarity with the location and danger, such omission was highly negligent in this instance. After making all due allowances for the weight to be given to the verdict we feel constrained to say that the evidence clearly fails to show negligence on the part of the defendant and ordinary care on the part of the plaintiff. It is not a conflict of evidence, but a want of evidence in these particulars. The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    The American Insurance Company, for use, etc., v. Samuel Arbuckle.

      Limitations—Statute, Sec. 15—Justice of Peace—Judgment of.

    An action on a judgment of a justice of the peace falls within the provisions of Sec. 15 of the statute of limitations and is barred in five years.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Edgar County; the Hon. C. B. Smith, Judge, presiding.
    This was a suit commenced by appellants before George M. Jeter, a justice of the peace of Edgar county, on January 7, 1889, to recover a judgment upon a former judgment rendered January 22, 1879, by M. H. Ewers, a former justice of the peace of Edgar county, against Samuel Arbuckle and in favor of the American Insurance Company. Judgment was rendered by Jeter, January 21, 1889, against appellants, and an appeal was taken to the September term of the Edgar Circuit Court. The cause was then tried before a jury, and after hearing all the evidence, the court instructed the jury to render a verdict for the defendant, upon the ground that appellants had not commenced this action before Justice Geo. M. Jeter within five years from date of former judgment obtained before Justice M. H. Ewers, and in accordance with such instructions the jury so rendered a verdict.

      Motion for new trial having been entered, overruled and judgment entered in accordance with the verdict, this appeal was taken.
    Messrs. F. W. Dundas and J. C. Ficklin, for appellant.
    Mr. H. Van Sellar, for appellee.
   Wall, J.

The question presented by this record is whether an action on a judgment of a justice of the peace is barred by the statute of limitations in five years.

It is provided by Sec. 15, Chap. 83, R. S., that “ actions on unwritten contracts expressed or implied, or on awards of arbitration, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” See. 16 provides, actions on bonds, promissory notes, bills of exchange, written leases, written contracts or other evidences of indebtedness in writing shall be commenced within ten years next after the cause of action accrued.” By Sec. 26 the period of limitation in actions on j udgments of courts of record in this State is twenty years.

A judgment of a justice of the peace not being a judgment of a court of record, does it fall within Sec. 15, which includes “all civil actions not otherwise provided for,” or within Sec. 16 under the clause, “ other evidences of indebtedness in wilting ” ?

Under the English statute of 21 James I, and similar statutes in this country limiting actions of debt founded upon “ any contract, without specialty,” it has generally, if not always, been held that the statute of limitations does not bar an action upon a judgment, and so where the liability of defendant arises, not by the act of the parties but by virtue of some requirement of a statute, there is no such bar. The distinction is drawn between actions upon contracts in fact and contracts in law.

It has been held in New York, New Hampshire and Pennsylvania that the judgment of a justice of the peace was not within such a statute, which barred only actions founded upon any contract, without specialty, thus distinguishing such judgment from a mere contract. Angell on Limitations, Ch. 10; Wait’s Ac. & Def., Vol. 7, 253. In Bemis v. Stanley, 93 Ill. 230, it was held that a judgment of a court of record of another State was within the clause of Sec. 15 above quoted.

The court did not refer to Sec. 16. It was then said “ our view is that Sec. 15 is broad enough to embrace the judgment sued on in this case; that the suit on a judgment is a civil action not otherwise specially provided for and hence barred in five years by the terms and conditions of our statute.” In Aarvig v. Kellogg, 21 Ill. App. 530, it was held by the Appellate Court of the Second District that such a judgment as here involved is to be classed under the head of “ other evidences of indebtedness in writing” and therefore controlled by Sec. 16, it being considered that Bemis v. Stanley was not conclusive because involving merely the judgment of a court in another State and because the decision there might have been sustained on the ground that more than ten years had elapsed, and further the attention of the court had not been called to Sec. 16. The same court so held in O’Donnell v. C. & A. R. R. Co., 22 Ill. App. 233.

In Stelle v. Lovejoy, 23 Ill. App. 575, it was held by the Appellate Court of the First District that the action was barred in five years, citing Bemis v. Stanley. We are inclined to the same view.

The sixteenth section enumerates bonds, notes, bills, written leases, written contracts, and then adds other evidences of indebtedness in writing.”

“ It is said to be a good rule of construction that where an act of Parliament begins with words which describe things or persons of an, inferior degree and concludes with general words, the general words shall not be extended to any thing or person of a higher degree; that is to say, where a particular class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive and the general words treated as referring to matters ejusdem generis, with such class, the effect of general words, when they follow particular words, being thus restricted.” Broom’s Legal Maxims, 651; Sedgwick on Stat. and Const. Law, 360-1.

Here the statute having specially enumerated several particular kinds of voluntary obligations, including the more general expression “written contracts,” uses the language under consideration, obviously intending to include every other form of voluntary written acknowledgment, admission or undertaking, which might give evidence of indebtedness.

A judgment does evidence indebtedness, but it does more; for it is an adjudication even though rendered by a court of inferior jurisdiction, if acting within its proper limits as to person and súbject-matter. It may rest upon contract or upon tort, or upon a provision of statute or of a municipal ordinance. It does not necessarily depend upon any voluntary act of the defendant. Indeed, it may be and often is based upon considerations wholly independent thereof. Moreover it is conclusive, and its merits, while it remains in force, can not be collaterally examined or inquired into.

It would be a misuse of terms to describe it as a mere evidence of indebtedness. It is not to be supposed that the legislature, familiar with ‘the legal effect and qualities of a judgment, would refer to it in terms which more aptly describe something less conclusive and less potential, and which inaptly and imperfectly characterize it by a designation of its minor quality only.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Robert Burgess et al. v. Charles Capes, for use, etc.

      Garnishment—Statutes—Construction of—Choses in Action.

    The expression, ‘ ‘ choses in action” in the provisions of the statute in regard to garnishment, refers only to those in the custody, charge or possession of the garnishee belonging to the defendant, and held against third parties.
    [Opinion filed February 14, 1890.]

      Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Messrs. Edwards & Evans, for appellants.
    Messrs. Herrick, Lucas & Spencer, for appellee.
   Conger, J.

On the 8th day of March, 1886, appellant sold to Charles T. Capes a stallion, and delivered to him the following instrument:

“ Bill of sale of Pride of Maplethorp:—This is to certify that we have sold the imported shire stallion, Pride of Maplethorp, to Mr. C. T. Capes, of Pontiac, Ill. This also certifies that the above mentioned stallion, Pride of Maplethorp, was imported from England on the steamship Lake Huron, by the Burgess Bros., of Wenona, Ill. This also certifies that the above mentioned stallion is free from all hereditary diseases, and is a breeder, and in case said stallion proves contrary in a reasonable time, say two years, if no mishaps allay him, we agree to take said stallion back and furnish the buyer another stallion of same value as the above stallion, provided the said stallion, Pride of Maplethorp, is returned to us in good condition.
“Burgess Bros., Wenona, Ill.
“Dated Wenona, March 8, 1886.”

In April, 1889, Haynes, Gorden & Co. recovered in the Circuit Court of McLean County, a judgment against said Capes for $2,000, and after execution had been issued thereon, and returned no property found, they proceeded, under the statute, to summon appellants as garnishees.

Interrogatories were filed and answered and the cause was tried by a jury, resulting in a verdict against appellants of $1,375, upon the theory that said stallion was not a good breeder; the warranty in the bill of sale had been broken, and therefore appellants were liable to Capes for damages, and that such liability on the part of appellants to Capes was a proper subject of garnishment in favor of Haynes, Gorden & Co. Appellants insisted in the court below, and contend here, that the claim of Capes against appellants was for unliquidated damages, and they were not liable as garnishees.

It can not be doubted that the general rule is, that where the claim of the defendant against the garnishee rests in unliquidated damages, the garnishee can not be made liable. Drake on Attachment, Sec. 548; Waples on Attachment, page 197.

In Sec. 544 in Drake on Attachment, it is said: “That which the garnishment operates upon in this class of cases, is credits. The term credits, in this connection, is used in the sense in which it is understood in commercial law, as the correlative of debt.”

But it is insisted by counsel for appellee that these general principles have no application in this State, because our statute, unlike those of others, includes choses in action as subjects of garnishment.

A chose in action is thus defined : “ A right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with a contract, but which can not be enforced without action.” Chap. 62, R. S., Sec. 5, provides that upon a person being summoned as a garnishee, that interrogatories shall be tiled, “and compel the answer of any and every garnishee touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value therefor in his possession, custody or charge, or from him due and owing to the said defendant.” The language of Sec. 21 of the Attachment Act, which provides for summoning garnishees in original attachments, directs that the sheriff shall summon as garnishees all persons “whom the creditor shall designate as having any property, effects, choses in action or credits in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant.”

The question arising upon this record- is the construction of these sections, for we assume they must be construed together and are both intended to make one summoned as a garnishee liable to the same extent whether summoned as such in an attachment proceeding, or under the provisions of the chapter on garnishment.

The first section of this chapter provides that the court or justice of the peace, “shall examine and proceed against such garnishee or garnishees in the same manner as is required by law against garnishees in original attachments,” while the first part of Sec. 5 already referred to, by its language plainly refers to cases where one is summoned as garnishee in an original attachment proceeding or by garnishee summons issued out of a court of record.

Does the language of Sec. 5 mean choses in action belonging to the defendant against third parties, the evidence of which may be in the possession, custody or charge of the garnishee alone, or does the language, “ or from him due and owing to the said defendant,” include clioses in action which the defendant may hold against the garnishee? So far as we are advised there has been no adjudication upon this point. After carefully considering the various provisions of the statute we have reached the conclusion that the expression “choses in action,” refers only to those in the possession, custody or charge of the garnishee belonging to the defendant, and held against third parties. This, we think, is apparent, first, from the fact that in the attachment act, which, as we have said, intends to give the same remedy against the garnishees, the language used is, “ or who are in anywise indebted to such defendant,” thus showing that the legislature intended no departure from the general rule as to what is subject to garnishment, except to make the garnishee answer as'to effects of any and every kind of the defendant in his possession, .custody or charge.

By Sec. 20 and succeeding sections of Chap. 62, it is provided that when any garnishee has any goods, chattels, choses in action, or effects, other than money, belonging to the defendant, he shall deliver them to the officer holding the execution and he shall sell them and apply the proceeds, etc.; and by Sec. 24 the court may “authorize the garnishee to collect any choses in action, and account for the proceeds.”

Thus it is seen if the term “chose in action” as used in Sec. o, includes those held by the defendant against the garnishee, he may be required to sue himself, which is an absurdity, or by the other sections he may surrender to the officer, to have sold, the defendant’s claim upon him for damages for a violation of a contract, which is equally as absurd. Again the words, ‘‘or from him due and owing to the said defendant,” clearly do not apply to all the specific things mentioned as being in the possession of the garnishee, and must be restricted to those to which the words would properly apply. One can not be said to owe credits or effects, but may owe goods or money; so we think it can not be said that one owes to another a chose in action, or, as defined,- a right to recover a debt, or as Blackstone defines it, the recompense one is entitled to recover as damages for a violation of a contract. In the case at bar appellants may owe Capes money for a violation of their warranty, but it is absurd to say they owe him the right to recover it in an action.

We are inclined to think, therefore, that the rules already quoted from Drake and Waples are applicable to the facts of this case, and that appellants were not liable as garnishees upon the bill of sale. There is another view of this bill of sale which, to our minds, shows the difficulty there is in attempting to hold appellants liable as garnishees in this proceeding. It is insisted by counsel for appellee that “ Capes had the right under the contract, to chose either of two remedies, if the horse proved not to be a breeder. He could sue for the breach, or could demand another horse. The remedies were cumulative and not dependent upon each other.” Admitting, without intending to decide the question, that this position is correct, by what authority do appellees in this case take it upon themselves to elect for Capes as to which remedy he will pursue? How can they assume that Capes would not prefer to return the horse and take another in its place ?

It is no answer to say that it is shown in this case that Capes made an unsuccessful effort to return the horse,' and was therefore compelled to rely upon an action for breach of warranty, for while it may be true in this particular case that the wishes of Capes and appellees coincided, they might not in all cases, and to sustain this action it must be assumed in all similar cases when one has an election like that claimed for Capes, his creditors, and not he, must determine what it shall be.

The judgment of the Circuit Court will therefore be reversed.

Judgment reversed.


text:
    The Chicago, Burlington & Quincy Railroad Company v. The City of Quincy.

      Railroads—Injunctions—Streets—Obstructions in—Deed—Decree—Evidence—Sufficiency of—Rights of Public.

    1. A city is powerless to confer a right so to use its streets as to hinder or obstruct the concurrent use by the public thereof.
    2. While statutes of limitation do not run against municipal corporations as to public rights, the principle of estoppel in pais may be so applied.
    3. In an action brought to enjoin a railroad company from placing obstructions in certain portions of city streets, the deed under which the company claimed the right to act in the premises containing a provision that they, or portions thereof in which any right and privileges were granted to the company, should be by them so graded and their tracks so laid that carriages, wagons, drays and vehicles of all kinds might conveniently cross the same, it is held: That the decree in behalf of the plaintiff was within the provisions of the deed, and that the same was supported by the evidence.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. J. F. Carrott and O. F. Price, for appellant.
    Equity never interferes where there is a plain and adequate remedy at law. Schurmeier v. St. Paul & P. R. R. Co., 8 Minn. 113; Hodgkinson v. L. I. R. R. Co., 4 Edw. Ch. 411; Goodell v. Lassen, 69 Ill. 145; Mills v. Parlin, 106 Ill. 60.

      Bill alleging that trespasser is about to commit irreparable injury must allege his insolvency, or otherwise it will be dismissed. There is no allegation of that kind in the bill filed in this cause. Gause v. Perkins, 3 Jones’ Eq. 177; Owens v. Crossett, 105 Ill. 354; Thornton v. Roll, 118 Ill. 350.
    A court of.chancery will not assume jurisdiction to control the use of a street in a city by a railroad company, or the manner in which the track is laid, etc. C. & V. R. R. Co. v. The People, 92 Ill. 170; Mills v. Parlin, 106 Ill. 60, and cases cited; The City of Waterloo v. The Waterloo St. Ry. Co., 71 Ia. 193.
    To warrant the court in issuing an injunction strong prima fade evidence of the facts on which the complainant’s equity-rests must be presented to the court, as well as a full and candid disclosure of all the facts. 1 High on Inj., Section 11; 2 High on Inj., Section 1575; 2 Joyce on Inj., page 1034; Reddall v. Bryan, 14 Md. 444; Johnston v. Glenn, 40 Md. 207.
    A party is precluded from an injunction after long acquiescence; Kerr on Inj., 348; Hilliard on Inj., 24; 1 High on Inj., Sections 618 and 643; Carpenter v. Carpenter, 70 Ill. 457, 463; Vail v. Mix, 74 Ill. 128; Higbee & Riggs v. C. & A. R. and T. Co., 5 C. E. Green, 442; Greenhalgh v. Manchester & R. Ry. Co., 1 Ry. Ca. 680; S. C. in 3 Myl. & C. 784.
    Estoppel in pads applies to a municipal corporation. C. & N. W. Ry. Co. v. The People ex rel., 91 Ill. 254; Martel v. City of East St. Louis, 94 Ill. 69.
    For an obstruction to a public highway an injunction is not a favored remedy, whether sought by the public or an individual. Irwin v. Dixion, 9 How. (U. S.) 10.
    The fee of the streets in Quincy, Illinois, being in the city, it follows that the city of Quincy had full authority to authorize the railroad company to lay down railroad tracks in said streets, and to operate engines and cars thereon. Stetson v. C. & E. R. R. Co., 75 Ill. 74; Patterson v. C. D. & V. R. R. Co., 75 Ill. 588; Peoria & R. I. R. R. Co. v. Schertz, 84 Ill. 135; Truesdale v. Grape Sugar Co., 101 Ill. 561.
    Messrs. W. G. Feigenspan, City Attorney, and Carter, Govert & Pape, for appellee.

      The jurisdiction of a court of equity to restrain by injunction at the instance of a city the placing of encroachments or obstructions on public streets and highways is well established. Metropolitan City Ry. Co. v. Chicago, 96 Ill. 620, and numerous cases there cited; Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540; Town of Burlington v. Schwarzman, 52 Conn. 181; S. C. 52 Am. Rep. 571; Huddleston v. Killbush Township, 7 At. Rep. (Pa.) 210; Board of County Com. v. St. Cloud, etc. Ry. Co. 32 N. W. Rep. (Minn.) 91, and cases cited; Inhabitants of Watertown v. Mayo, 109 Mass. 315; Cheek v. Aurora, 92 Ind. 107; Taunton v. Taylor, 116 Mass. 254; Cobb v. I. & St. L. Ry. Co., 68 Ill. 233; Dill. Mun. Corp. (3d Ed.) § 405 n. 2, § 659, § 660 notes 1 and 4, § 662 n. 1, § 706 n. 1; High on Inj., § 819 and § 768, and cases there cited.
    Although it is a legitimate use of a street of a city to permit railroad tracks therein, yet such use must be consistent with the public interests in them, and neither a city nor the State Legislature can confer upon any one a right to their exclusive use or a right to so use them as to hinder or obstruct the public in a concurrent use of them. St. L., A. & T. H. R. R. Co. v. City of Belleville, 20 Ill. App. 580, and cases there cited; Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540; Stack v. East St.Louis, 85 Ill. 377; Pitts., Ft. W. & C. Ry. v. Reich, 101 Ill. 157; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155; City of Morrison v. Hinkson, 87 Ill. 587; City of Quincy v. Jones, 76 Ill. 231.
    The decree granting the injunction is not too broad. It will be construed with reference to the claim of right, and the fair construction of the injunction is that the defendant shall not so obstruct the streets in question, or so grade, improve or use them in operating its road as to prevent their unobstructed use by the public as public thoroughfares. City of Quincy v. Bull, 106 Ill. 337.
   Conger, J.

This was a bill in chancery filed by the city of Quincy against the railroad company, praying for an injunction to restrain the latter from placing certain alleged obstructions in those portions of Broadway and Spring streets, in the city of Quincy, which lie west of the west line of Front street.

Broadway and Spring streets are alleged in the bill to be two of the principal streets of the city running east and west, terminating at their western ends at the edge of the Mississippi river, and forming two of the approaches to the river and landing thereon, and for years have, by a natural gradual descent, extended to the river’s edge, making it possible for footmen, horsemen and vehicles to pass and repass from the edge of the river up and over said streets to the city, and that such streets have been so used by the public for a long time.

Appellant filed its answer, relying first upon a deed executed by the Northern Cross Railroad Company as party of the first part, and the city of Quincy as party of the second part, containing many mutual grants, covenants and agreements in reference to the use and occupation of certain ground upon the river front, which we do not think necessary to notice in detail, but one clause of which is as follows:

“ And the said party of the second part also grants to the said party of the first part the right and privilege of grading, improving and using that portion of Broadway street which lies west of the west line of Front street, and also that portion of Spring street which lies west of 'the west line of Front street to the Mississippi river, to suit the convenience of said company, and to construct thereon such railroad tracks, sidetracks, switches and frogs, as the said parties of the first part may desire, and to use the same in the passage of machinery and cars to and fro, or in permitting them to remain thereon, as the convenience of the company may require in the transaction of their business, but without any right to erect on said parts of said streets any building or buildings, or to otherwise appropriate any part thereof to private use, except as herein-before stated, and.these portions of Broadway and Spring streets, and all other streets in said city, not herein conveyed, in which any rights and privileges are herein granted to said parties of the first part, shall be by them so graded, and tho railroad tracks so laid, that carriages, wagons, drays and vehicles of all kinds may conveniently cross the same.”

It also avers that by reason of certain foreclosure proceedings it has succeeded to all the rights and privileges of said Northern Cross Railroad Company, which have been repeatedly recognized by the city; also that it has, for more than twenty years, constructed tracks, switches, etc., over and across those portions of Broadway and Spring streets lying west of the west line of Front street, under and by virtue of the rights and privileges granted in said deed; and in reference to the question at issue, the answer says that at the time of the commencement of this suit it was preparing and intending to commence and complete the laying of another railroad track, side-track or switch, over and across said Broadway and Spring streets, which lie west of the west line of said Front street, and nearer the said Mississippi river or said Quincy Bay,” than any other railroad track or side-track heretofore laid over and across said parts of said streets, and before laying said railroad track or side-track, it was necessary to throw up and construct a small embankment over and across said streets and north and south of said streets, on which to lay said rad-road tracks or side-track, so as to prevent the water from said Mississippi river and from said “Quincy Bay” overflowing said track and said ground; and the defendant says that the laying of said railroad track, side-track or switch was and is essential to the use, maintenance and operation of defendant’s said railroad, but this defendant denies; that in constructing said embankment of earth, cinders, sand and gravel, and other material, over and across those portions of Broadway and Spring streets in said city of Quincy which lie west of the west line of said Front street, it will hinder and prevent the use of said streets or any part thereof by the citizens of said city of Quincy, or by the public at large, and it denies all and any purpose and intention to obstruct said portions of said Broadway and Spring streets in any material respect by the location and construction thereon of its said railroad track, side-track or switch; on the contrary, said defendant avers and states that its design and intentions are and were to so construct and lay its said railroad track or side-track thereon that carriages, wagons, drays and vehicles of all kinds might conveniently cross the same; and the defendant, in fact, insists that the use and occupation of said streets, or parts of said streets, for the purpose of laying the railroad track therein, is the lawful and proper appropriation of said parts of said Broadway and Spring streets to the legitimate purposes of a street or highway; and that, by authorizing such use thereof, the legislature but regulated the mode and means of using and enjoying the public easement therein, and does not in any manner appropriate, dispose of, or interfere with, the ultimate rights of the owners of the fee of the land in said streets or parts of said streets, or the rights of the owners of lots or blocks lying near or contiguous to said parts of said streets.

The Circuit Court rendered a decree in which the findings recite the history of the use and occupation of these grounds and many other things which we do not regard it necessary to set forth in detail, but upon the real question at issue the decree is as follows: “ And the court further finds that the equities of this case are with the complainant, and that all of the material allegations of complainant’s bill of complaint are true as therein alleged. It is therefore ordered, adjudged and decreed by the court that the said defendant, the Chicago) Burlington and Quincy Bail road Company, its officers, agents, attorneys, servants and employes be, and they are, and each of them is, hereby perpetually enjoined and restrained from depositing any stone, earth, cinders, gravel or other materials upon, or from so erecting any embankment or other obstruction upon, and from so grading said parts of Broadway and Spring streets, or either of them, extending from said Front street to the Mississippi river, or the said bay, or from so laying any railroad tracks thereon, and from otherwise so appropriating the said parts of said streets to defendant’s use, and from so obstructing the same as to prevent the free use and enjoyment thereof by the public as public streets of said city, to and from the said river or body of water, or in such manner as to prevent the landing of steamboats and other water crafts plying upon said river and body of water, or in such a manner as to destroy and impair the use of the same as public levees or landings, or in such a manner as to prevent wagons, vehicles, carriages or the public from crossing and recrossing continually along said parts of Spring and Broadway streets, west of Front street, to and from the said river or body of water, or in such a manner as to prevent the citizens of Quincy and public at large from having the free and unobstructed use of said parts of said streets as pub’ic streets in said city of Quincy, or from interfering with the complainant in the use thereof as such public streets, and from the erection and construction of the said obstruction or embankment upon and across said parts of said Spring and Broadway streets as aforesaid, mentioned in said bill and hereinbefore mentioned, and from otherwise obstructing, or further obstructing said parts of said Broadway and Spring streets, and either of them, in any manner so as to prevent or hinder the free and convenient use of said parts of said streets by the complainant and the citizens of said city of Quincy and the public at large as such public streets of said city. And it is further ordered by the court that the people’s writ of injunction issue out of this court against the said defendant, its officers, agents, attorneys, servants and employes perpetually enjoining and restraining them,, and each of them, as aforesaid in this decree provided.”

We think this decree is fully warranted by the evidence in the case, nor is it inconsistent with the conditions of the deed of the city of 1855. By the terms of this deed it is provided that “ the portions of Broadway and Spring streets, and all other streets in said city not .herein conveyed, in which any rights and privileges are herein granted to said parties of the first part, shall be by them so graded and the railroad tracks so laid that carriages, wagons, drays and vehicles of all kinds may conveniently cross the same.” By the decree appellant is enjoined from depositing materials upon, or from so erecting embankments or obstructions upon, and from so grading said streets, or from so laying tracks thereon or obstructing the same, as to prevent the free use and enjoyment thereof by the public as public streets, or to destroy or impair the use of the same as public levees or landings, or to so construct their embankment as to prevent wagons, vehicles, carriages or the public from crossing and recrossing continually along said streets to and from the river.

While the language of the decree is much more voluminous than that of the deed, they both mean substantially the same thing, and that is, that the railroad company in constructing any of its tracks across these streets, shall do so with a due regard to the right of the public to use them as public highways, and use the ends of them, where they lie upon the margin of the river, for any public purpose which may be useful and proper to the public. By this decree, appellant is left at liberty to construct as many tracks and make as many embankments as it may desire, provided, in doing so, it keeps these streets in such a condition that the public can also use them.

Counsel for appellant, in their brief, say: “We ask, has the defendant company the right and privilege to grade, improve and use these parts of said streets to suit the convenience of said company, and to construct thereon such railroad tracks, side-tracks, switches and frogs, as the said company may desire, and to use the same in the passage of machinery and cars to and fro, or in permitting them to remain thereon, as the convenience of the company may require in the transaction of its business.”

We have no hesitation in answering that it has not. It is expressly withheld from them in the deed upon which they rely, and were it not, the city would be powerless to confer a right to so use its streets as to hinder ,or obstruct the public in a concurrent use of them. Stack v. E. St. Louis, 85 Ill. 377; St. L., A. & T. H. R. R. Co. v. Belleville, 20 Ill. App. 580; Dillon on Municipal Corporations, Sec. 541; Chi. Dock & Canal Co. v. Garrity, 115 Ill. 155.

Heither do we find anything in this record that should be regarded as an estoppel against the city asserting its right to the reasonable use by the public, with appellant, of these streets.

While statutes of limitations'do not run against municipal corporations as to public lights, the principle of estoppel in pais may be applied even against public rights, where all the circumstances of the case equitably require it. We find nothing in the facts of this case requiring the application of this principle, and have been unable to discover in this decree anything unjust or unreasonable toward the rights of appellant.

Believing, as we do, that the decree is equitable, and supported by the evidence, it will be affirmed.

Judgment affirmed.


author: Conger J.

text:
    Alexander T. Miller v. Thomas W. Dyas, Administrator de bonis non, etc.

      Partnership—Dissolution—Bill—Decree.

    Upon a bill filed to settle a partnership, this court is unable to determine from the record the basis upon which the trial court decided certain questions presented and therefore reverses the decree and remands the cause with directions, to the end that the matters in dispute may upon another trial be finally disposed of.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. J. F. Carrott and J. H. Williams, for appellant.
    Mr. J. C. Broady, for appellee.
   Conger J.

This was a bill in chancery filed in the Circuit Court of Adams County by Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, and against appellant, Alexander T. Miller, asking for a settlement of the partnership business theretofore existing between said Albert B. Kingsbury, deceased, and appellant Miller. The cause was referred to a master, who ■ took the evidence and made his report to the court. A large number of exceptions were filed to the master’s report, but by an agreement -of the parties the court heard and determined the cause from the evidence regardless of the findings of the master, and the court rendered a decree against said appellant Miller for the sum of $2,389.88. Upon an appeal being taken from that decree to this court it was reversed and the cause remanded at the November term, 1888, of this court.

It appears from the record that when the cause was again tried in the Circuit Court no reference to the master was made, but the court took up and passed upon the exceptions formerly filed to the master’s report, being in all twenty-three exceptions, sustaining five, overruling ten, and sustaining in part and overruling in part the remaining eight, and entered a decree against appellant for the sum of $2,387.88, being $2 less than the former decree.

We are met by the same difficulty in the record as presented now, that existed when the case was here before. The final decree of the court makes no statement of the basis or theory upon which it proceeded in fixing the amount due from appellant at the sum of $2,387.88, and when we refer to the holding of the court in passing upon the exceptions to the master’s report, we can not, in many instances, determine what the holding of the court was intended to be. The first exception ivas: The master found that Miller was entitled to but $25 per month for his services, whereas he should have found that Miller was entitled to $40 per month.” The finding of the court is that this exception “ be overruled,” thereby impliedly holding that appellant was entitled to $25 per month for his services to the firm.

The master had found upon this subject that Miller had been paid by Kingsbury during his lifetime for all services rendered to the firm, but whether the court u; held this finding of the master we are unable to determine from the record; and so with other rulings of the court in which exceptions are in part overruled and in part sustained, but without that definiteness that enables us to know clearly the views of the court. It is insisted by counsel that the decree is based upon the ruling of the court upon the first exception to the master’s supplemental report, by which the court holds that appellant should be charged with one-lialf of $5,400.64 furnished the firm by Kingsbury, less one-lialf the amount Kingt-bury received in excess of his one-lialf from Kreitz for sale of ice, and that the court ignored all other claims on both sides. While this is probable, judging from the amount' of the decree, there is nothing in the record other than that to verify it.

It appears from the evidence that there are firm assets left undisposed of in the hands of appellant, as well as judgments against him for firm debts. No reference is made to either in the decree, nor any provision whatever for a final adjustment of the firm matters. Counsel for appellee, in reference to this matter, in his brief says:

“ In respect to the two judgments against Miller, mentioned on page 14 of appellant’s argument, I will say both of these judgments do not amount to as much as the balance in cash in appellant’s hands, as surviving partner, November 20,1886, as shown by his report of that date filed in the Adams County Court, said balance being $3,777.59, and the total amount of these judgments being $2,633.76. It was appellant’s fault that the judgments were allowed to be obtained. In matter of fact, the largest of the judgments—1 mean the one for $2,361.65, in favor of First National Bank of Quincy—or a large part of it, at least, has been paid by Miller out of said balance, and I think the other one of said judgments has also been paid in like manner, but whether or not this is evidence I can not say, and for the purposes of the case, as it now stands, I regard it as wholly immaterial; for if he has not paid them, it appears from the evidence he has in his hands, as surviving partner, ample moneys with which to pay them.”

We do not wish to be understood as expressing any opinion upon the rights of appellant as to these judgments, but think the whole partnership should be determined by this decree so that it will be a final adjudication of all matters growing out of the partnership, at least so far as they can be, up to the time of rendering the decree. The present decree, it would seem, proceeds upon the theory of ascertaining the balance due from one partner to the other, upon the basis alone of considering what each paid into the common fund, and have individually for their own personal use drawn out. If debts exist against the firm, who shall pay them? If appellant has firm assets under his control, what shall he do with them? We do not think it any answer to say the County Court will determine these matters upon the report of appellant as surviving partner. If this bill had not been filed, the County Court would doubtless have adjusted these matters in accordance with the principles of justice.

The bill charges, among other things, that the estate of Kingsbury is in danger of losing the amount due it from appellant, and in danger of having large sums to pay on the indebtedness of the firm, if all of the firm assets are not applied in satisfaction of the same; prays for an injunction and a receiver; that an account be taken of the transactions of the firm; that its affairs be fully adjusted, etc. The decree should be final upon these questions, and not leave them to be litigated again as soon as this case is concluded.

The decree of the Circuit Court will be reversed, and the cause remanded with directions to refer the cause to the master to find upon the evidence upon each of these controverted points, so that the decree may, as far as possible, make a final disposition of all matters in dispute between the parties growing out of or connected with the partnership.

Reversed and remamded.


text:
    Robert Weir et al. v. William M. Dustin et al.

      Attachment—Bond—Action on by Assignee of Firm of Attachment Debtor —Set-off of Judgment Obtained in the Attachment Suit.

    1. Expenses incurred by the assignee of a co-partnership, of which a defendant in attachment was a m nnber, in defending an attachment, can not be recovered, the same having been defeated in an action by such assignee upon the bond given by the attaching creditors in the attachment proceeding.
    2. Were this otherwise, a personal judgment against the debtor, obtained in the attachment proceeding, could be set off in such an action by the assignee.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.

      Mr. Parke E. Simmons, for appellants.
    Messrs. Blinn & Hoblitt and Beach & Hodnett, for appellees.
   Wall, J.

Appellee recovered a judgment for $611.86 against appellants in an action of debt on an attachment bond. The writ of attachment was issued at the instance of Weir & Craig against William M. Dustin and was levied upon real estate of said Dustin. That suit resulted in a judgment against Dustin for the amount claimed by Weir & Craig, but the attachment was defeated. A few days after the writ of attachment was levied, William M. Dustin & Co., a firm composed of said William M. Dustin and two other persons, made an assignment of all property, real and personal, choses in action, etc., belonging to’said firm, to Aaron B. Nicholson, and a few days thereafter William M. Dustin conveyed the property levied upon to the said Nicholson, which conveyance was in the statutory form and contained the statement that it was intended thereby to vest in said Aaron B. Nicholson, assignee, the same title in and to the said real estate that he has in the estate of said William M. Dustin & Co., for the sole use and benefit of their depositors.”

The defense to the attachment was wholly and entirely the work of Nicholson, the assignee of Dustin & Co., and the items of damages for which the present suit was brought were all of them expenses incurred by said Nicholson as such assignee in said defense.

William M. Dustin was at no expense whatever in that behalf. He was unwilling or unable to make the defense, and really it does not appear that he had any particular interest in so doing. It was, however, a matter of interest to the creditors of Dustin & Co. to defeat the attachment, and the assignee made the defense on their behalf and used for that purpose the funds of the estate of William M. Dustin & Co.

The first question is whether expenses so incurred, not by the defendant in attachment, but by the assignee of a co-partnership of which he was a member, can be recovered in an action upon the bond given by the attaching creditor in that proceeding. That bond was in terms payable to the defendant William M. Dustin, and was conditioned to satisfy him for such cost and damages as should be awarded against them for the wrongful suing out of the said attachment. . It was for his personal benefit and protection and to indemnify him for any loss or damage or expense he might sustain in that respect.

Had there been no assignment by his firm and had his partnership creditors made the defense for their own purposes, he being indifferent and permitting his name to be used but incurring no expense, it would never be supposed that in an action on the bond a recovery could be had for costs and expenses incurred by such creditors in that defense. It seems to be argued by counsel that by the assignment the assignee ■was invested with the legal right to make this defense and t<> recover the cost of it in the name of Dustin, as though it were a chose in action of the firm, wdiich, by the assignment, passed to the assignee.

It did not belong to the firm but to Dustin only, and whatever it was, whether a chose in action or something less, or otherwise, it did not pass by the assignment; for according to the plain terms of that instrument it purported and professed to transfer only such rights as pertained to the firm and did not expressly or by implication include anything pertaining individually to William M. Dustin.

The liability of a surety is to be construed strictly, as we learn from the books, and it is fundamental that it is not to be extended beyond the reasonably plain purport of the language employed. The surety is supposed to sign the obligation with the understanding that it is to be so construed in his favor. This case illustrates the matter very well. It was not unlikely that as real estate only needed to be levied upon, and that there would be no damage thereto in any event, and as the only effect of the attachment would be to give the plaintiff therein an advantage over other creditors, the defendant would be indifferent as to the result; but it was not in contemplation that the creditors of Dustin & Co. might assume the defense and with a carte blanche as to expenses employ counsel ad libitum and bring witnesses from distant States as was done here, and recover it all back on this bond which was payable to William M. Dustin for his indemnity, when he had been at no loss whatever in the premises and had no real interest in the defense. The partnership creditors had no interest in this bond. It was not payable to them and they can not either directly or through the assignee obtain any relief upon it. As more or less supporting the view we take, reference may be had to Murfree on Official Bonds, Secs. 375-8; Wade on Attachment, Vol. 1, Sec. 107; Drake on Attachment, Sec. 162; Burgett v. Paxton, 15 Ill. App. 379.

Cdunsel argue that by virtue of the statute regulating the giving of a bond in attachment cases any person interested in the proceedings may maintain an action on the bond; but we think the expression referred to relates to costs only and not to such damages as are here involved. We are of opinion that the Circuit Court erred in holding the appellants liable upon the facts stated for the expenses so incurred by the assignee in said defense.

It is also urged on behalf of appellants that even if the appellees could recover for these items on the bond, appellants might well set off the judgment held by Weir & Craig, the principals in the bond, against said William M. Dustin, which they proposed to do, but in which they were overruled 'by the Circuit Court. The present demand is nominally in behalf of William M. Dustin, and if the items thereof are recoverable in an action on this bond, it must be by reason of an assignment or transfer in fact, or by legal effect, of which the law will take notice, to Nicholson; but any such assignment .must necessarily be subject to all equities existing at the time in favor of the bondsmen against Dustin, and it is well settled in this State at least, that in an action against a principal and his surety a demand in favor of the principal may be set off against the demand of the plaintiff against the principal and surety. Himrod v. Baugh, 85 Ill. 435.

It would hardly be doubted that under the rule announced in the ease just cited, if the present suit were in the name of Dustin alone (as in legal effect it really is, the name of the usee being immaterial and unnecessary), and his interests only were involved, the defendants might set off the judgment of Weir & Craig against him.

The subject-matter thereof was subsisting when the attach ment bond was given and before any right of action thereon existed in favor of Dustin or any one else in his right. The case of Harding v. Shephard, 107 Ill. 264, is not in point, for in that case it was proposed to set off against a demand in favor of the executor for property by him sold to defendant, a claim held by the latter against the decedent.

We are inclined to hold that the proposed set-off was allowable and that it was error to deny it, assuming there was liability on the bond as claimed by appellees.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    The City of Litchfield v. Silas E. Ward.

      Master and Servant—Minor—Municipal Corporations—Contract of Service—Recovery of Wages—Extra Help—Contradictory Instructions.

    1. Although the principles announced in certain instructions are correct, as applied to a proper case, yet where they are not applicable to the case at bar, and are contradictory to other instructions given, and tend to confuse and mislead the jury, the giving of them constitutes reversible error.
    2. In an action by a city employe to recover from the municipality compensation for assistance rendered him by his minor son, this court holds that the right of recovery depends upon the amount of steam power furnished a company named, in accordance with a resolution passed by the city council.
    [Opinion filed February 14, 1890.]
    Appeal from the County Court of Montgomery County; the Hon. Amos Miller, Judge, presiding.

      Messrs. Joseph E. Paden and James H. Truitt, for appellant.
    Messrs. Lane & Cooper, for appellee.
   Conger, J.

On the 1st day of March, 1888, appellee was employed by appellant, under a written contract, as the engineer of its water-works, and by the terms of such contract he was to run the same for one year from that date for the sum of 81,300, and to furnish all necessary assistance for that purpose. The same motive power of which appellee had charge, not only drove the water works, but also supplied the power to run the electric lights of the city. The amount of this power, which the city was required to furnish the Electric Light Company, was 100-liorse power, and this was understood by appellee, for he says in his testimony, “ I told Beeman that I was doing more work than was expected of me as engineer of the water works; I told him that we were furnishing more than 100-horse power to the Electric Light Company, that being the amount of power which the city was required to furnish' the Electric Light Company.

About the 1st of December, 1888, additional machinery and-dynamos for the Electric Light Company were put in, and appellee claimed that the power then furnished the Electric Light Company exceeded 100-horse power, and demanded from Mr. Beeman, who was chairman of the fire and water works committee, additional help. Appellee and Beeman contradict each other as to what Beeman did in the matter.

Appellee says Beeman promised to report the matter to the city council, and that Beeman told him the next morning after the council met, that he, appellee, could put his son at work to assist him, at fifteen cents per hour. Beeman says 'he promised to report the matter to the next council; that he was not present at such meeting, but afterward told appellee that the council had,, as he understood, taken some kind of action at.the meeting.

On the 6th of December, 1888, at a meeting then held of the city council, the records show the following proceedings • “ Alderman Thorp and Alderman Keithley stated that the engineer at the water works had asked for additional assistance.”

“ On motion of Alderman Neuber it was ordered that additional help be allowed him, with the understanding that the cost of such help be paid by the engineer, provided, that it shall be shown by a test, properly made, that the city is now furnishing to the Electric Light Company steam to the amount of more than 100-horse power; then, and in that case, the additional expense for such help shall be borne by the city.”

Appellee employed his son, who was a minor, and proved that his labor, at fifteen cents an hour, was worth $94.50, for which sum he obtained a verdict and judgment was rendered thereon.

On the 22d January, 1889, a test was made, in the presence of appellee and some of the aldermen of the city, which showed that the power which was then being furnished the Electric Light Company, was from eighty-one to eighty-six horse power. The court gave to the jury, among others, the following instructions for appellee:

I. “ The court instructs the jury that when work and labor are performed for a party at his request and there is no agreement as to the amount to be paid, then there is in law an implied promise to pay what such work and labor is reasonably worth, and this applies to a corporation as well as an individual.”

. II. “ The court instructs the jury that when one person labors for another with his knowledge and consent, and the latter voluntarily takes the benefit of such labor, then the law will presume that the laborer is to be paid for his labor unless the contrary is shown by the evidence; and if no special contract is provided fixing the price, then the laborer is entitled to have what his services are reasonably worth, and this rule applies to corporations as well as individuals.”

And the following for appellant:

II. “ The court instructs the jury that the resolution of the city council offered by the plaintiff, dated December 6, 1888, is the only employment of the plaintiff’s son that can be considered in this case, and if the plaintiff went on and used his son in the work, knowing the test made, if you should believe that a test was properly made, showed less than 100-horse power, and made no objection to the city until after or about the time the employment of plaintiff had expired, then the jury will find in favor of the defendant.”

These instructions are so directly contradictory that we can not well see how they failed to mislead and confuse the jury.

Appellant was insisting before the jury that they could not rely upon a supposed implied contract or understanding between the parties, but. were governed by the resolution of December 6th, and by its second instruction had its view of the law of the case indorsed by the court. Appellee, on the contrary, was insisting that the resolution of the council was not the only evidence of the contract, but that one might be implied to pay a reasonable compensation for labor of which another voluntarily takes the benefit, and had his views given to the jury.

We are inclined to think appellant’s second instruction was the law of the case, and those of appellee above quoted should not have been given. The principles announced in them are correct in a proper case, but they were not applicable to the facts of this case.

It is insisted by counsel for appellee in their brief that the resolution of December 6th was a ratification of the act of Mr. Beeman. Admitting, without deciding, that it would have that effect, it would seem to follow that the condition contained in such ratification would be a part of it, and must be met by appellee. But it is said the test could not be made; that it was a condition impossible to be performed, and therefore the resolution was an absolute ratification of the employment claimed to have been authorized by the aldermen. But the test was made, and so far as we are able to discover, by competent persons and with reasonably certain results.

Against this test appellee seeks to show that much more steam was generated in, the boilers than would be required to run the water works and give to the Electric Light Company more than 100-horse power, and in their brief, counsel for appellee say: “ It was not the fault of the appellee that the engine of the Electric Light Company did not receive more than 100-horse power of steam. It was so set that it would not receive any more steam, and therefore the proviso of the resolution was impossible of performance; and for that reason can it be said that appellee shall not be paid for the labor rendered by his son, which is proven is beneficial? Clearly not. Such a rule would be unjust and oppressive in the extreme.”

We fail to see that either party was at fault. The question to be determined was not how much steam was generated, but how much power was furnished the Electric Light Company; that is, what quantity of steam was actually employed in propelling the works of the Electric Light Company.

We do not think the case was properly presented to the jury, and the judgment of the County Court will be reversed and the cause remanded.

Reversed mid remanded.


author: Per Curiam.

text:
    William R. Griffith v. M. L. Welsh et al.

      Practice—Bill of Exceptions.

    This court will not interfere with the judgment of the trial court where the bill of exceptions fails to show a motion for a new trial made, or exception to the judgment entered.
    [Opinion filed February 14, 1890.]
    Appeal from the County Court of Clark County; the Hon. H. Gassaway, Judge, presiding.
    Mr. S. S. Whitehead, for appellant.
    Mr. Newton Tibbs, for appellees.
   Per Curiam.

The judgment in this case must be affirmed because the bill of exceptions fails to show that a motion for a new trial, or exception to the judgment was - made. The record of the judgment as certified by the clerk does so show, but this is not the proper mode. James v. Dexter, 113 Ill. 654; Dickett v. Durrell, 11 Ill. 72; Law v. Fletcher, 84 Ill. 45.

The judgment of the County Court will therefore be affirmed.

Judgment affirmed.