text:
    The Chicago & Western Indiana Railroad Company v. William J. Slee.

      Trespass—Railroad Company—Condemnation—Writ of Possession— Failure to Cover Premises in Question—Evidence—Instructions—Liberum Tenementum—Plea of—Damages—Rental Value—Failure to Reenter.

    In an action of trespass quare clausum against a railroad company, it being alleged that certain premises were wrongfully taken possession and made use of by it, this court holds that the defendant fully justified the entry under the plea of liberum tenementum, which, by a certain stipulation entered into, was to be considered as pleaded in the case; that whatever rights the plaintiff might have in equity to redeem in no way affected the legal title conveyed by a certain deed, when the matter came in question in an action at law, and that the judgment for the plaintiff for the rental value of the premises from the date of the entry until the commencement of the suit was erroneous, in view of the fact that he did not re-enter the same.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Osborn & Ltnde, for appellant.
    Messrs. C. H.Willett and C. Porter Johnson, for appellee.
   Moran, J.

This was an action qucvre clausum fregit brought by appellee against appellant, and the locus in quo was the east thirty feet of lots eleven and twelve in Wilder’s north addition to Chicago, described in the declaration by metes and bounds. There was a stipulation that under the plea of the general issue the defendant might introduce any defense to which it was entitled, the same as if specially pleaded. Plaintiff’s proof was that the defendant, by its agents, accompanied by a deputy sheriff, entered upon the premises in January, 1881, and tore down fences thereon, and filled up the lots with dirt, and laid a railroad track thereon, and kept possession of the same. To show that defendant had no authority to enter, plaintiff introduced a certain writ of possession, the same which the deputy sheriff had, and which had been issued in a certain condemnation proceeding, and it appeared therefrom that while the writ related to certain other portions of said lots eleven and twelve, it did not authorize any entry upon the premises described in the declaration.

The plaintiff became the owner of the said lots eleven and twelve in 1868, and on June 4, 1870, conveyed the same, including the part thereof described in the declaration, by trust deed to Levi D. Boone, trustee, to secure a note for $4,500, payable three years after date with interest payable semi-annually.

On February 19, 1879, Levi D. Boone, trustee, executed and delivered to the Union Mutual Life Insurance Company of Maine, a deed conveying the said premises; said deed recites the execution of the foregoing trust deed by plaintiff to secure said note, default in payment of the same, demand by the insurance company, the holder of said note, for sale of the premises described in said trust deed, and advertisement and sale to said insurance company; on February 18, 1880, said insurance company executed and delivered to Albert J. Averill a deed conveying the same premises. The above mentioned deeds were introduced in evidence by the appellant, and it was shown by the proof that Averill purchased the property and took the title for appellant, and that appellant directed its agents with Averill’s assent to take possession of the property; and during the summer of 1880, and until the date of the trespass complained of, there was strife between appellee and appellant about the possession of the locus in quo, appellant endeavoring to get complete possession of the property described in the deed, and appellee retaining possession, in part at least, so that there was a continual controversy as to who was in possession until January, 1881.

Among other instructions -asked by the defendant to be given to the jury was the following: “The jury are instructed in this case to return a verdict for the defendant.” This instruction should, in our opinion, have been given. Appellee’s counsel says in his brief that he admits that Averill was the agent of the railroad company in holding the title, and treats Averill’s title the same as though the conveyance had been direct to the railroad. This being so, the defendant fully justified the entry under the plea of liberum tenementum, which by the stipulation is to be considered as pleaded in the case. There was no evidence whatever in conflict with the evidence which was admitted as though said plea was on file; said evidence being documentary, and no issue as to its truth, there was nothing for the jury to pass on, and the verdict could only be for the defendant. Proof which will support the plea of liberum tenementum is a complete defense to trespass quare clausum. Port Dearborn Lodge v. Klein, 115 Ill. 177; Brooks v. O’Boyle, 27 Ill. App. 384.

Appellee’s counsel seems to hold the view that because it was declared by the Supreme Court in the Union Mutual Insurance Company et al. v. Slee, 123 Ill. 57, in a chancery proceeding, that the deed from the insurance company operated as an equitable assignment of the mortgage, and that Slee had a right to redeem, that fact in some manner affected the legal title conveyed by said deed when the matter came in question in an action at law. This is a mistake. Whatever Slee’s right may be, in equity to redeem and to have an accounting, until the redemption has taken place and the decree is entered in pursuance of which the legal title is by appropriate methods restored, it can be asserted at law with its full force. This question was early decided in this State. In Reece v. Allen, 5 Gilm. 236, in deciding whether the grantee of a trustee was hound to show that the conditions of the trust deed had been complied with, our Supreme Court said: “ This precise question was decided by the Supreme Court of Appeal of Virginia, in the case of Taylor v. King, 6 Munf. 358; and also, in Harris v. Harris, lb. 367. Indeed in the former case the court went further, and decided that the grantee of the trustee should recover in ejectment, although the jury had specially found that the trustee and purchaser were both guilty of a fraud in the transfer. We do not hesitate to agree with the court, that the conveyance passed the legal title to the estate, and that it did not devolve upon the purchaser to show that the trustee in making the sale had complied with the conditions specified in the trust deed. If the grantee took the title in fraud of the rights of any of the parties, a court of chancery, within whose peculiar jurisdiction such questions are, would either set aside the sale, or treat him as trustee, and compel him to perform the trust.” This doctrine has been repeatedly approved. See Windett v. Hurlbut, 115 Ill. 403.

Counsel’s contention that this legal title is obliterated because, by the transaction between appellant and the insurance company, Slee’s mortgage indebtedness was paid, is not tenable. Such may be the effect in equity, but the circumstances relied on had no operation against the legal title.

If appellant had no other defense, this judgment would have to be reversed for the reason that the court allowed the jury to assess damages for the rental value of the premises from the date of the entry by appellant till the° commencement of this suit, it being shown that appellant continued in possession and no re-entry was made by appellee. This was error. Smith v. Wunderlich et ah, 70 Ill. 426. The judgment must be reversed and the cause remanded.

Reversed and remanded.

Garrett, J., took no part in the consideration of this case.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    The Chicago & Western Indiana Railroad Company v. William J. Slee.

      Trespass—Railroad Company—Wrongful Possession—Continuance of —Damages.

    In order to entitle the plaintiff in an action of trespass to recover for a continuance in possession after an ouster, there must be an entry on his part.
    [Opinion filed July 2, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Osborn & Lynde, for appellant.
    Messrs. C. H. Willett and C. Porter Johnson, for appellee.
   Moran, J.

This is an action of trespass brought by appellee against appellant to recover for the continuance of the alleged wrongful possession of certain premises.

The record shows that appellee recovered a judgment against the appellant in a prior action for the wrongful entry upon the premises in question; that appellee claims the locus in quo as owner in fee, and that appellant has continued in possession since the wrongful entry for which appellee recovered, and that appellee has never regained the possession or re-entered. “ The right of the true owner to the use and profits is suspended until he regains possession either by an entry or under a legal judgment.” Waterman on Trespass, Sec. 928. In order to entitle the plaintiff to recover for a continuance in possession 'after an ouster, there must be an entry. Smith v. Wunderlich, 70 Ill. 431.

The verdict against appellant was not warranted, and the judgment must be reversed and the cause remanded.

Reversed and remanded.

Garnett, J., took no part in the consideration of this case.


author: Gaby, J.

text:
    Union Oil Company v. Sarah J. Maxwell, Executrix.

      Administration—Claim—Guaranty by Deceased of Certain Alleged Indebtedness—Consideration—Assignment—Pleading — Parties —Misnomer—Abatement—Waiver—Sec. 3, Chap. 76, R. S.

    Upon an appeal from an order and judgment entered by the Circuit Court, disallowing a claim filed originally in the Probate Court against the estate of a deceased person, this court holds that the guaranty by him and another upon the formation, with others, of a corporation, of the payment to it of certain indebtedness claimed to be due them, the same being contributed by them toward the assets thereof, amounted to a guaranty that the indebtedness existed as well as that payment should be made; that the assignment thereof to the corporation carried in equity allthe securities, the guarantors had for its payment; that the original agreement, being under seal, is joint and several under Sec. 3, Chap. 76. R. S., and that defendant was properly proceeded against; that the second agreement given by the said guarantors is competent and sufficient evidence of the transfer of the indebtedness to the corporation and of its equitable right to the performance of the guaranty, or damages in lieu thereof, and that a probate court has jurisdiction of such equity against an estate in the course of administration.
    [Opinion filed July 2, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Mr. John B. Skinner, for appellant.
    This case must be distinguished at the outset from that class of cases wherein one party becomes a simple guarantor of the payment of the indebtedness of another, and wherein the discharge of the principal operates as a discharge of the guarantor. The class to which the case at bar belongs is one wherein a party, in substance and effect, becomes the guarantor of certain of his own indebtedness, and the fact that he agrees to pay it in a certain way, viz., through the medium of some third person, cuts no particular figure in the construction of his agreement or in arriving at his liability. In this case it is the guarantor (of his own indebtedness) who is primarily liable, and if the creditor fails to receive the amount guaranteed through the channel of the third party, he can still hold the original debtor.
    This proposition of law has been passed on by the courts of nearly every State in the Union and there seems to be no dissenting voice as to the general principle. Darst v. Bates, 95 Ill. 493; Runde v. Runde, 59 Ill. 98; Meyer v. Hartman, 72 Ill. 442; Brown v. Curtis, 2 Comst. (N. Y.) 225; Cardell v. McNeil, 21 N. Y. 336; Bruce v. Burr, 67 N. Y. 237; Milks v. Rich, 80 N. Y. 269; Malone v. Keener, 44 Pa. St. 107; M. & G. R. R. Co. v. Jones, 57 Ga. 198; Dyer v. Gibson, 16 Wis. 557; E. M. & R. M. Co. v. Shattuck, 53 Wis. 455.
    In Darst v. Bates, supra, our Supreme Court in distinguishing between the two classes of guaranties say (at page 512): “ It is a general principle, which prevails in all cases under this branch of the statute, that wherever the defendant’s promise is, in effect, to pay his own debt, though that of a third person be incidentally guaranteed, it is not necessary that it should be in writing. * * * The assignor owes the assignee and that particular mode of paying him is adopted ; he guarantees in substance his own debt.”
    The same position is taken by our Supreme Court in Runde v. Runde, and Meyer v. Hartman, supra.

    Brown v. Curtis, supra, was a case in which the payee and holder of a promissory note transferred it to his creditors in exchange for his own note held by such creditor, and guaranteed the payment of the note transferred, although the form of guaranty used, expressed no consideration. The New York court say, at page 229: “ Although in form this is a promise to answer for the debt or default of another, in substance it is an engagement to pay the guarantor’s own debt in a particular way. He does not undertake as a mere surety for the maker, but on his own account, and for a consideration which has its root in a transaction entirely distinct from the liability of the maker. The defendant was a debtor to the plaintiff, and gave the note, with the guaranty, to satisfy that debt.”
    Again (at p. 234): “ If he (the guarantor) intends by the payment of the note which he guarantees, to discharge a distinct obligation, one not originally at all connected with or having reference t.o the note, then he, in effect, contracts for himself, and his undertaking is original and not within the statute, and no consideration need be expressed in the guaranty.”
    In Cardell v. McNiel, supra, the plaintiff sold defendant a horse and received as part of the consideration therefor a note of one Cornell, payable in a buggy. The plaintiff, through his duly authorized agent, warranted Cornell to be “ good,” and that the plaintiff would get the buggy when the note became due. The note turned out to be worthless, and suit was brought against the guarantor. The court say (at p. 340): “ It- is claimed that the guaranty is void by the statute of frauds. In mere form it was certainly a collateral undertaking, because it was a promise that another person should peiform his obligation. But, looking at the substance of the transaction, we see that the defendant paid, in this manner, a part of the price of a horse sold to himself. In a sense merely formal, he agreed to answer for the debt of Cornell. In reality he undertook to pay his own vendor so much of the price of the chattel, unless a third person should make the payment for him and thereby discharge him.”
    In Milks v. Rich, 80 N. Y. 269, the court reviews and follows the cases above quoted from, with several others, and quotes the following, from Dauber v. Blackney, 38 Barb. 432: “That whenever the holder of a note against a third person, turns it out in payment of his own debt, or in the payment of property puichased, or for money received by him from the person to whom he transfers it, and at the same time agrees that the note is good, or will be paid at maturity, or that it will be collected by due process of law against the maker, this is an undertaking, in substance, entirely for his own benefit and advantage, and the contract is valid, although it rests entirely in parol, and is not within the statute of frauds.”
    In Malone v. Keener, M. & G. R. R. Co. v. Jones, Dyer v. Gibson, and E. M. & R. M. Co. v. Shattuck, all cited above, the courts of Pennsylvania, Georgia and Wisconsin are equally strong in the enunciation of this doctrine.
    In Dyer v. Gibson (at p. 560) the Supreme Court of Wisconsin say: “ Decision has multiplied upon decision, with scarce a syllable of conflict, for more than a century, that such a promise is not reached by the statute: and it is now too late for discussion.”
    Mr. A. B. Jenks, for appellee.
   Gaby, J.

In the months of September and October, 1875, the proper steps were taken for the incorporation of the Maxwell Oil Company, all of the stock being taken by John P. Maxwell, William E. Wheeler, Benjamin V. Page and William Sprague, and in the following year the name was changed to the Union Oil Company.

The appellee is executrix of Maxwell, and the change of name being after his death, one of the objections made to the claim of appellants is, that the change of name is invalid. If that position be true, a matter not examined into, it is only a misnomer of the old corporation, and is matter of abatement, waived by going into evidence upon the merits. Hoereth v. Franklin Mill Co., 30 Ill. 151. The merits of the case can be best shown by the documentary evidence. The first document is as follows:

“Articles of agreement between Joseph P. Maxwell and William E. Wheeler, parties of the first part, and Benjamin Y. Page and William Sprague, parties of the second part, witnesseth:
The above parties agree to form a co-partnership for the manufacture and sale of lard oil, machinery oil, lubricating and other oils, tallows, etc., to continue for the term of ten years. And it shall be at the option of either three of the four above mentioned parties to terminate said partnership as much sooner than ten years as they may elect to do so.
The business shall be conducted under the firm name of Maxwell, Wheeler & Co. The parties of the first part shall contribute to the capital stock of the new firm the amount that shall be found, on the 1st of October, 1874, to be invested in their business and belonging to them, and consisting of their good accounts, stock at its market value, and the improvements, buildings, machinery, etc., etc., included in the factory they own on Illinois street, at cost amounting in all to twenty-two thousand seven hundred and ninety-two and seventy-seven one-hundredths dollars ($22,792.77).
The parties of the second part shall contribute one hundred and fifty (150) feet of land on Erie street, now covered by their oil factory and the factory buildings, machinery and all else contained in said factory that belongs to them (excepting the iron safe) standing on said land, subject to certain mortgages to the Charter Oak Life Insurance Company for thirty thousand dollars ($30,000) at eight (8) percent.
The surplus of the value of said contribution shall be estimated at twenty-seven thousand dollars ($27,000) and the new firm shall assume and pay said mortgage.
The parties of the second part shall also contribute on the first day of October, 1874, the sum of fifty thousand dollars ($50,000) in cash, making the capital stock of the parties of the second part, seventy-seven thousand dollars ($77,000).
The amount invested by each party shall draw interest at the rate of ten (10) per cent per annum, which shall be credited to their respective accounts at the close of each year and shall be paid from the profits of the business, and any balance shall be divided in the proportion of six-tenths to the party of the first part and four-tenths to the party of the second part.
This partnership shall commence on the first day of Octoher, 1874. From the first of May, 1874, to the first of October, 1874, the parties of the first part shall occupy the factory, buildings and property of the parties of the second part, paying there lor as rent the interest of the mortgage of $30,000 to the Charter Oak Life Insurance Company, and insurance on the property, and nothing more. It is further agreed that the parties of the second part shall furnish perfect title to their said factory and land, and deed the same to the new firm, subject to the above named mortgage.
The mortgage above mentioned covers four hundred and fifty (450) feet of the land belonging to the parties of the second part, and in case the said parties of the second part shall sell or dispose of any part of that remaining, and then after deeding the one hundred and fifty (150) feet to the new firm, it is understood and agreed that they may, if necessary to give a title, pay the Charter Oak Insurance Company any part of the mortgage. And for such part as they may pay, they shall receive from the new firm a note at eight (8) percent interest for that amount to mature at the maturity of said mortgage.
It is mutually agreed by and between said parties that neither of said parties shall draw from said firm and business more than the sum of ten thousand dollars ($10,000) in the aggregate per year.
It is further mutually agreed that the parties of the first part guarantee to the new firm all the indebtedness due them from the West Virginia Oil and Oil Land Company, and B. S. Compton and the parties of the second part shall.not be interested in or liable for any indebtedness contracted by reason of dealings that may have been had with said West Virginia Oil and Oil Land Company and B. S. Compton.
It is further mutually agreed that in case of the death of either of said parties then the said business of said firm shall continue until the end of the fiscal year, at which time a settlement of his interest shall be made.
It is further mutually agreed that the parties of the first part shall, till the close of this partnership, devote their entire time and attention to the business of the firm. In witness whereof we have hereto set our hands and seals, this first day of May, 1874.
Joseph P. Maxwell, [seal.]
William E. Wheeler, [seal.]
Behj. V. Page, [seal.]
William Sprague. [seal.] ”

And the next as follows :

“ Whereas, the undersigned, Joseph P. Maxwell and William E. Wheeler, at the time of the formation of partnership with Benjamin V. Page and William Sprague, under the firm name of Maxwell, Wheeler & Co., on October 1, 1874, contributed to the assets of the said firm on their part, “all their good accounts,” and placed among such good^ accounts the indebtedness due to them from the West Virginia Oil and Oil Land Company and B. S. Compton; and
Whereas, as part consideration that said B. V. Page and William Sprague would become members of the said firm of Maxwell, Wheeler & Co., and contribute to the capital thereof, the undersigned did guarantee to the said firm the payment of the said indebtedness so due from the said Oil and Oil Land Company and B. S. Compton; and
Whereas, the said firm of Maxwell, Wheeler & Co. has conveyed all its assets, including the said indebtedness, to the Maxwell Oil Company, and the individual members of said firm have become the shareholders of the Maxwell Oil Company, and the amount of the said indebtedness is represented in the shares of stock issued to the undersigned.
Mow, therefore, we and each of us jointly and severally do guarantee unto the Maxwell Oil Company the payment to the said company of the full amount of said indebtedness, and hereby deposit with Benjamin V. Page and William Sprague as collateral security that the same will be paid, our shares of stock in the Maxwell Oil Company (87 shares of the said Maxwell, and 113 shares of the said Wheeler,) and give to the said Benjamin V. Page and William Sprague, or either of them, full power and authority to sell said shares of stock or any portion thereof, at public or private sale, without advertising the same, or otherwise giving notice to either of us, whenever, in their judgment, the terms of the said guaranty shall be broken on our part, and it shall be necessary for the security of said Maxwell Oil Company that such sale shall be made. In case they shall make such sale the proceeds thereof shall be applied to the payment of said indebtedness, with all interest due thereon, and all expenses attending the sale. If there shall be a surplus, the same shall be returned to us.
Joseph P. Maxwell,
William E. Whbelee.”

It turned out upon subsequent litigation, that there was no indebtedness to Maxwell and Wheeler from the West Virginia Oil and Oil Land Company, although the figures of $22,792.77 in the agreement between them and Page and Sprague, were inserted by their bookkeeper, at their instance, about October 1, 1874, by taking from their books as due to them from the Virginia Company $29,659.49.

The account thus shown was by them put in as assets, and so entered upon the books of the new firm. Considering now only that partnership agreement, what did Maxwell and Wheeler guarantee ?

The appellee says that it was the payment of what might be really due, and nothing else; not the existence of the indebtedness in fact, as well as the payment. The appellant claims that the latter construction is correct. This is the only construction that really makes the guaranty of any value, and which is consistent with the hypothesis that the parties entering into business relations with each other, requiring capital, had common sense. And it is the construction Maxwell and Wheeler put upon the guaranty the next year, when the corporation was formed, and in the paper they signed they recited that they had contributed to the assets of the firm of Maxwell, Wheeler & Co. “ the indebtedness due to them from the West Virginia Oil and Oil Land Company” and “did guarantee to the said firm the payment of the said indebtedness so due.”

It is not necessary to inquire whether, under the circumstances so far as they appear, or are to be inferred from this record, this last paper, although all in the past tense in its recitals, should be considered as importing a present agreement that Maxwell and Wheeler, in consideration that the Maxwell Oil Company did then, at their request, take that indebtedness for stock of the company issued to them, guarantee its payment.

The original agreement under which the firm of Maxwell, Wheeler & Co. was formed, was under seal, and besides thereby importing a consideration, shows in its provisions a full consideration for the guaranty contained in it. The assignment by the firm to the corporation of that indebtedness, carried, in equity, all the securities the firm had for its payment, whether guaranties or in more tangible shape. 2 L. C. in Eq. 1667, notes to Ryall v. Rowles; Ullman v, Kline, 87 Ill. 268; Stillman v. Northup, 17 N. E. R. 379; Smith v. Starr, 4 Hun, 123 ; Craig v. Parkis, 40 N. Y. 181.

The original agreement, being under seal, is joint and several by statute. Sec. 3, Chap. 76, K. S. And in such case, if one covenantor died, a separate action lies against the personal representatives of the deceased, as well as against the survivor. Ballance v. Samuel, 3 Scam, 380. This guaranty being an agreement to which Maxwell and Wheeler were parties of the first part, and Page and Sprague of the second, Page and Sprague might maintain an ación of covenant against the appellee upon it, the damages recovered to be appropriated as the supposed indebtedness would have been, if it had been paid. The second agreement, signed by Maxwell and Wheeler, is competent and sufficient evidence against them of the transfer of the indebtedness to the corporation, and, therefore, of the equitable right of the corporation to the performance of the guaranty, or damages in lieu thereof. Of such equity against an estate in the course of administration, the Probate Court has jurisdiction. The cases to this point are collected in appellee’s brief in Dogget v. Dill, 108 Ill. 560.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion. In adjudicating the equities, the stock pledged as security must be taken into the account, but the case here does not show what ought to be done in that regard.

Reversed and remanded.


author: Garnett, P. J.

text:
    Chicago City Railway Company v. Joseph Delcourt.

      Personal Injuries—Street Cars—Negligence—Verdict against Evidence.

    1. It is negligence to attempt to board a street car while in rapid motion.
    2. In an action against a street railway company to recover damages for injuries received by the plaintiff while attempting to board a street car, this court reverses a judgment for the plaintiff as contrary to the weight of evidence.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. C. M. Hardy, for appellant.
    Mr. M. W. Robinson, for appellee.
   Garnett, P. J.

On August 17,1886, the appellee was injured in consequence of being thrown to the ground by a cable car of appellant near the corner of 29th and State streets in Chicago. He brought this action against the company, charging in his declaration that he was injured by the negligence of the defendant’s servants. The jury found a verdict for the plaintiff, motion for a new trial was overruled, and judgment entered on the verdict. Appellant asked for a reversal on the ground that the verdict was manifestly against the evidence. At the time of the occurrence, the train of cars which caused the injury, was moving north on State street. A stop was made at the north crossing of 29th street to receive passengers waiting there. The plaintiff claims that he was among the number waiting to take passage at that point, and that while the car was at a stand there he made an effort to board the train, taking hold of the hand rail with his right hand and placing his right foot on the step or foot board, but that before he could raise his left foot the train started with a jerk, and after dragging him some twelve, or fifteen feet, threw him violently to the ground, by means of which the injury sued for was produced. He testified that he fell because the train started too quick; that it went with a full start. The only other witness for plaintiff who pretends to have seen him fall, was George Mead, a boy about sixteen years of age, who testified that the train started at full speed without a signal. Both of these witnesses testified that the train was composed of a grip car and two open summer cars. Mead was a newsboy, and was on the train for the purpose of selling, and was trying to sell his papers. He was not acquainted with Del-court, and the subject was never mentioned to or by him until about a year afterward, when the plaintiff’s son saw him selling newspapers and asked him whether he saw the accident. The slight attention given to the matter by Mead and the lapse of time would seem to have been sufficient to prevent his recollection of anything more than the main facts of the occurrence, yet he professes to remember the place in the b’ock where he himself boarded the train, just what part of the middle car he first touched, the number of cars in the train, that the rear seat of the last car was unoccupied, and that the seat immediately in front of it was occupied by pas. sengers; that he did hot succeed in selling any papers on that train, that the plaintiff had a hatchet and his dinner-pail under his left arm and put his right hand and foot on the car in trying to get on; that the windows at the front and rear ends of the car were up, and other details too numerous to recite. Much of his recollection, we think, may be accounted for by the fact (admitted by him) that he had heard the plaintiff’s testimony and the opening of the ease by defendant’s counsel. It does not appear probable that he could, under the circumstances, have remembered the various trivial points given in his evidence. To meet the case made by these two witnesses, the defendant called the conductor and grip driver and four passengers. The two employes and two of the passengers testified that the train was composed of the grip car and one summer car only, and several of defendant’s witnesses said that they did not see plaintiff among the persons waiting at 29th street when the car stopped or started. The driver of the grip did not see Delcourt until after he fell, but all the other five witnesses for defendant state, that after the train started and was under full speed, he ran alongside the train and tried to get on the grip, and in making the effort was thrown to the ground. Some of these witnesses say that the plaintiff came on a run from the sidewalk, in a southwesterly direction, in order to catch the train, which had already started north before he made any move toward it. Four of the defendant’s witnesses who are wholly disinterested, were seated in the car next to or near the grip, so as to see clearly all that took place, and there is nothing in their evidence to indicate bias or insincerity. Appellee argues that his identification by the defendant’s witnesses is not satisfactory, and the accident to which they testify must have been at some other time and to some other person. It is true that some of the witnesses would not swear positively that Delcourt was the man they saw fall, but the time and p'ace given, with other details, leave no reasonable doubt on the point. This is not the ordinary case of proving the defendant not guilty by the employes of the company only, against whose evidence it is commonly urged that their employment and daily bread depend upon the will of an autocratic employer. Juries are in the habit of taking a wide range of liberty in scanning and disbelieving the evidence of such witnesses, but here are four men who have no motive to tell other than the truth, who had ample opportunity of observation, and whose evidence bears internal evidence of fairness and honesty. Such evidence the jury should not lightly put aside, and we think would not, unless misled by passion or prejudice. Trying to board the train when in rapid motion was negligence on the part of the plaintiff, and on the entire evidence no negligence is attributed to appellant. It is with great reluctance that this court inter: feres with the findings of fact by a jury, but as the case has only been tried once, and the verdict appears clearly against the weight of the evidence, we think justice requires it should be submitted to another jury. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Gary, J.

text:
    Ira C. Woodward et al. v. Illinois Central Railroad Company.

      Railroads—Freight—Failure of Consignee fo Remove upon Request— Storage by Company—Consumption by Fire—Contributory Negligence.

    In an action to recover from a railroad company the value of certain meal placed by it in a warehouse, subsequently consumed by fire, this court declines, in view of the evidence, to interfere with the judgment for the defendant.
    [Opinion filed July 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Messrs. G, W. & J. T. Kretzinger, for appellants.
    Mr. Edward E. Woodle, for appellee.
   Gary, J.

This case was tried at the Circuit Court by the judge without a jury.

In October, 1885, the appellee received, at its station in Chicago, by car Ho. 31,396, of the Great Eastern Line, 125 barrels of “ Gold Dust ” meal, and during that month delivered all but the thirty-five barrels in suit. Twice the appellee notified the appellants to remove it or it would be sent to store; the last notice, on Hovember 11, 1885, stated it would be next day, as in fact it was.

In December, 1885, persons holding orders for twenty barrels of the residue of the meal called for it several times, and were informed by the clerk of the appellee that it had not arrived. He had forgotten the receipt in October, and did not look back in his books far enough to find it. The holders of the orders did not inform the appellants of their failure to get the meal until about January 12, 1886, when called upon for payment. One of the appellants then went to appellee and upon the information he gave them, the clerk ascertained and informed him that November 12, 1885, the meal had been sent to a storehouse, which was, on the 12th day of January, burned, and the meal was destroyed.

The appellee did not own the storehouse, but that is not material; for their negligence, if any, was in not informing the holders of the orders of the fact that the meal had been removed to the storehouse. It must be, though no authority is cited to the point, that such was the duty of the appellee; yet the law must be reasonable, and not impose a duty so onerous as to make the performance of it impracticable. There must be a reasonable limit to the time during which, without other clue than the presentation of an order for the goods, the carrier shall be required, among a multitude of transactions, to remember, or search the books for a particular shipment. The orders in this case did state the car, and one of them the date of shipment (not of receipt) but not where from, and the car does not appear to have belonged to the appellee. So far as the case shows, those orders might have been consistent with a shipment from any point from which that kind of merchandise could have been sent by rail to Chicago, over any road connecting with the Illinois Central.

The appellants were very negligent in leaving the meal so long without attention, or at least in not giving such information to the persons taking their orders as would enable them intelligently to inquire for it. Which party was guilty of negligence, and in what degree, were questions of fact, taking into consideration what is reasonably practicable in the conduct of the commerce of the country.

The mistake of the clerk was not the proximate cause of the destruction of the goods; fifteen barrels would have been burned if he had told the holders of the orders where to find the twenty barrels. There is no error, and the judgment is affirmed.

Judgment affirmed.


author: Morar, J.

text:
    George A. Gary v. Edwin H. Brown.

      Garnishment—Attorney and Client—Fees—Lien upon Client's Securities—Receiver — Hindering and Embarrassing the Performance of the Duties of—Garnishment in another State—Sec. 24, Garnishment Statute—Contempt.

    1. A receiver may properly be appointed to take possession of and collect a note and mortgage in the hands of an attorney claiming a lien thereon for professional 'services rendered the reputed ¡owner thereof, upon petition of a third person claiming to own the same.
    2. An order making such appointment in no wise disposes of the claims of creditors of the payee of such note.
    3. In such case an order enjoining the claimant of the lien from prosecuting garnishment proceedings against the mortgagor and maker of the note in the State where the same were given can not be complained of. i

    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. George A. Gary, fro se.

    Messrs. Blair & March, for appellee.
   Morar, J.

Appellant was summoned as the garnishee of Margaret Austin and P. L. Austin, in a proceeding by E. A. Barnes to collect a judgment which he held against said Austin. The answer filed by appellant disclosed his possession of a certain note for $309.71, made by James Maguire, payable to Margaret Austin on or before three years after date, and dated March 9, 1886; also a certain mortgage on real estate in Michigan, from said Maguire to said Austin, to secure said note; that said note was, as appellant supposed, the sole property of Margaret Austin, and that appellant claimed a lien on said note and mortgage (and other papers in his possession) for professional services rendered to Margaret Austin in certain suits and other matters, amounting to more than $500. While the garnishee proceeding was pending and undetermined, appellee, Brown, filed his interpleader, claiming that the said Maguire note and mortgage were his property and that Austin had no interest therein, and moved the court to enter an order appointing a receiver to take possession of the said Maguire note and mortgage with power to collect the same, which order the court entered, appointing one Ford, receiver, and directing appellant to surrender the note and mortgage to said receiver, with which order appellant complied. The receiver at once took steps looking to the collection of said note from said Maguire, who resided in Tuscola county, Michigan, and who, it appears, was ready and willing to pay said note; but appellant commenced a garnishee proceeding against said Maguire and others in Michigan, by which he sought to prevent the payment of said money due on said note to said receiver and to have the same paid to himself in satisfaction of Margaret Austin’s indebtedness to him. Thereupon the court below, in a regular proceeding against appellant for contempt in seeking to hinder and embarrass the receiver of the court in making collection of said note, required appellant to terminate so much of the garnishment proceedings instituted by him in the State of Michigan as tended to prevent the payment over to the receiver of the money due on said note, and restrained and enjoined appellant from any further proceeding intended to prevent the collection of said moneys from Maguire for the payment of said note or to hinder or delay the collection thereof by said receiver. From these two orders, the one appointing a receiver and the other enjoining him from prosecuting his garnishee proceeding in Michigan, appellant prosecuted this, appeal.

The facts stated in appellant’s answer as garnishee made a case entirely appropriate for the exercise of the equitable powers given to the court by Sec. 24 of the garnishee statute which provided as follows: “When it shall appear that any garnishee has in his hands or under his control, any goods, chattels, choses In action or effects belonging to or which he is bound to deliver to the defendant with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property or collect any chose in action, and account for the proceeds thereof, or if the proceeding be in a court of record, the court may appoint a receiver to take possession and sell, collect or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties.”

There was no error in the court’s appointing a receiver for the note and mortgage on which appellant claimed a lien, and in requiring a delivery thereof to such receiver for the purpose of collecting the same. Such order in no manner disposed of the claim of appellant to a portion of the proceeds of the note. The claims of the respective parties remain to bé determined by the court on their merits, whenever the case is ripe for final judgment.

If the court had. the power to appoint the receiver and direct him to collect the note, it follows that the court had the power to aid and protect him in his efforts to collect the same, and to prohibit all parties to the litigation from attempt to hinder, delay or embarrass such collection. The power is one always unhesitatingly exercised by the courts in equity proceedings, the exercise of which is, so far as we are advised, always sustained on review. Sercomb v. Gatlin, 30 Ill. App. 258, and same case in Supreme Court, 128 Ill. 550. Both the orders appealed from were in all respects authorized, regular and warranted and the motion to dismiss the appeal is overruled; and both of said orders will be affirmed.

Orders affirmed.


author: Per Curiam.

text:
    James L. Clapp v. George B. Martin.

      Landlord and Tenant—Distress for Rent—Household Furniture — 2 rovei—Evidence—Instructions.

    1. The addition by the trial court to the verdict in a given case assessing the damages at a sum named “with interest," of words naming the amount thereof including interest, can not be complained of.
    2. The failure to mark an instruction not given, “ refused,” amounts to the same thing as if so marked.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Hanecy & Merrick, for appellant.
    Mr. S. M. Meek, for appellee.
   Per Curiam.

This is an action of trover to recover the value of furniture levied on by appellant under a distress warrant issued by him against Olive A. Martin for rent due from her for premises known as Mo. 44 Harrison street, in Chicago. Appellee alleged in his declaration that the goods taken were his property, and at the trial the jury found the allegation true, rendering a verdict against appellant for the value of property, and interest thereon at six per cent from the time of the seizure. There was ample evidence that the property in fact belonged to appellee, but appellant says the judgment should be reversed, because, as he alleges, appellee told him, before the levy was made, that the furniture belonged to his mother, Olive A. Martin, and because appellee never set up any claim thereto until this suit was brought, although he was well aware of the levy when it was made ; appellant is the only witness who testified to these facts. He relies upon tlm evidence of W. D. Woodbury to corroborate him on one of the points, but Woodbury’s statement is equivocal, and its construction was a matter with which the jury alone could deal. On both points appellee’s evidence contradicted that of Clapp, so that it was a case of conflicting evidence in which this court declines to interfere with the verdict.

The jury found the defendant guilty and assessed the plaintiff’s damages “ at the sum of five hundred dollars (8500) with six per cent per annum.” Thereupon the court added to'the verdict the words, “making five hundred and seventy-five dollars,” which appellant assigned for error. There is no pretense that the jury could not have included interest on the value of the goods, if they had made the computation and written into the verdict the gross amount of principal and interest. We think they might have done so, and their intention in that respect was plainly to be gathered from the words used in the verdict returned. The action of the court was merely putting the verdict in proper form, was in conformity with the well settled practice, and is sustained by the authorities. Koon v. Insurance Co., 104 U. S. 106; Smith v. Meldren, 107 Pa. St. 348; Burlingame v. Cent. R. of Minn., 23 Fed. Rep. 706; Henley v. Arbuckle, 13 Mo. 209; Matheson’s Adm’r v. Grant’s Adm., 2 How. (U. S.) 263; Clark v. Lamb, 8 Pick. 415.

The instructions submitted to the court for the defendant were all refused, but the substance of them all was included in others that were given. The correct practice would have been to write the word “"refused” on the margin of each instruction which the judge declined to give, but the failure to do this is not material error, as the bill of exceptions discloses clearly the fact of refusal. If an instruction is not marked, and is not given, it is just the same as though it was marked “ refused.” Calef v. Thomas, 81 Ill. 478.

Ho error is found in the admission or rejection of evidence. The judgment is affirmed.

Judgment affirmed.


text:
    George H. Hess et al. v. Board of Education, etc.

      Sales—Set-off—Failure to Perform—Evidence— Instructions —Verdict.

    1. In a contention involving the question as to which of several contracts was the true one, evidence tending to show the fact should be admitted by the court, and the question determined by the jury.
    2. In an action to recover the value of certain furnaces, this court holds that in view of the issues in the case, the verdict for the plaintiffs for one cent was not sufficiently inconsistent to be reversed.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Charles E. Pope and A. & C. B. McCoy, for appellants.
    Mr. Frederic Ullmann, for appellee.
   Per Curiam.

This action was brought to recover for certain furnaces furnished by appellants for the purpose of heating the school building in appellee’s district. The declaration counted upon a contract in writing with particular specifications as to the condition of the building and the undertakings of appellant. Appellees filed a plea of set-off, setting up a different contract not alleged to be in writing and averred a failure to perform on the part of appellants, and that appellees were compelled to purchase other furnaces at great expense. At the trial appellants introduced a writing signed by appellants, but not signed by appellees, and which appellants contended was the contract under which the heating furnaces were furnished. •

Appellees insisted that the contract was a verbal one, and gave evidence of certain conversations at board meetings, at which a representative of appellants was present and made certain statements and offers which it was claimed the board accepted. Appellants insist that it was error to admit the evidence of what occurred at such meetings and urged such error as one of the grounds for reversing this case.

As appellees denied that the writing not signed by them was the contract and insisted on a contract different in its terms, it was entirely proper for the court to admit all evidence tending to show what the true contract between the parties was, and leave the question to be determined by the jury from all the evidence.

It certainly was not for the court to determine, as a matter of law, which was the true contract. Complaint is made that the court in the instructions given ignored certain portions of the evidence. The instructions given for the defendants were based upon defendants’ theory as to what were the terms and conditions of the contract, and on that theory stated the law correctly. Appellants’ theory was given in plaintiffs’ instructions, and if the jury had believed plaintiffs’ contention they would probably have given them a substantial verdict. The verdict of the jury was for the plaintiffs with one cent damages, and it is insisted that this verdict is inconsistent and should not be allowed to stand. We do not think there is any such inconsistency in view of the issues in this case, as invalidates the verdict on that ground alone.

The verdict may not be strictly logical, but the result approximates justice as nearly, probably, as it can be done by any tribunal.

We think there is no error which calls for the reversal of the_case and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    William L. Roseboom et al. v. Charles Whittaker et al.

      Insolvency—Judgment, by Confession—Debts due Directors—Attachments in Behalf of other Creditors—Priority.

    1. The directors of an insolvent corporation may not apply the assets thereof to the payment of debts due themsel es to the exclusion of other creditors.
    2. A judgment by confession can not be looked upon as a constructive assignment, until some creditor has sought to have it so d"61ared.
    3. Liens accruing before such step has been taken are not displaced by it.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Messrs. Smith & Pence, for appellants.
    Messrs. Hamline & Scott, Bangs & Bangs, Frank A. Moore, Frank H. Clark, and George M. Haynes, for appellees.
   Gary, J.

The appellants were three of four directors of the Charles Whittaker Manufacturing Company, which was insolvent. They took up indebtedness of the company, for which they were sureties, and by resolution as directors elected one of themselves as treasurer, to issue to themselves the judgment note of the company for the amount of such indebtedness, and some others, unpaid, for which they were also sureties.

The treasurer obeyed, judgment was entered and execution put into the hands of the sheriff, who levied on all the property of the company liable to execution. Before the bill in this case was filed, and while the property was in the possessi on of the sheriff, Childs & Co. and Everett & Post, who are appellees, sued out attachments against the company, put their writs into the hands of the sheriff, and levied them upon the same property. Then the property got into the hands of a receiver appointed by the Circuit Court in chancery in the suit in which the decree appealed from was made, wherein Whittaker, appellee, was complainant.

Why he fell out of the case is now of no consequence. After the property went into the hands of the receiver, judgments were entered in the attachment suits and several special executions issued thereon and put into the hands of the sheriff. The decree directs the payment in full of the judgments in the attachment suits, and the payment of all other debts of the company fro rata, so far as the assets will go. The appellants complain that their judgment, execution and levy were held to give them no priority, and that the judgments in the attachments were given a preference over the general indebtedness of the company, including their own, after they were denied priority.

As to their own claims of priority, it is sufficient to refer to Beach v. Miller, 130 Ill. 162, followed in this court in Adams v. Cross W. P. Co., 27 Ill. App. 313, as authority that the directors of an insolvent corporation may not apply the assets of the corporation in payment of debts to themselves, and exclude other creditors.

Their other complaint is based upon the decision of the Supreme Court of the United States in White v. Cotzhausen, 129 U. S. 329, and its supposed adoption by this court in Heuer v. Schaffner, 30 Ill. App. 337.

The case was cited by this court in connection with decisions of the Supreme Court of this State, in support of the principle first announced in this State as to- unlawful preferences by an insolvent, in Preston v. Spaulding, 120 Ill. 208. If a judgment by confession by an insolvent—a judgment which takes all the assets—is to be held a constructive assignment, because it is in violation of the voluntary assignment act, it is such assignment only, at most, when some creditor has sought the aid of a court of chancery to have it so declared. Liens accruing before any such step taken, are not displaced by it, and therefore those attachment liens were entitled to preference in the distribution of the assets. There is no error in the decree, and it is affirmed.

Dewee affirmed.


text:
    Richard S. Peale v. Henry H. Hill.

      Master and Servant—Booh Agent—Sales upon Commission—Evidence.

    In an action to recover a balance claimed to be due under a, contract to canvass a given county for the sale of a subscription book, this court declines, in view of the evidence, to interfere with the judgment in behalf of the plaintiff.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Hr. H. A. Partridge, for appellant.
    Hr. L. S. Hodges, for appellee.
   Garnett, P. J.

Hill made a contract in writing with Peale, dated January 23, 1886, agreeing to go to La Salle County, 111., complete the canvass of that county for “Grant’s Hemoirs,” and to order 850 sets of the work for the county on or before April 1, 1886, the copies of the first volume which were already delivered in the county to be counted in making up the 850 copies. For his services Hill was to receive forty per cent, but if he failed to order 850 copies, he was only to have thirty-three and one-third per cent. Peale paid to Hill the thirty-three and one-third per cent but refused to pay any more, and this suit was brought by Hill to recover an amount equal to the six and two-thirds per cent. The case was tried before the court without a jury; there was a finding and judgment for plaintiff, and defendant appeals. On the trial, evidence was given tending to prove performance of the contract by Hill, and there was no contradiction of the statement that he ordered and placed over 900 sets of the work in La Salle county. As a defense Peale offered in evidence another contract in writing, dated J une 22, 1885, executed by R. S. Peale & Co., and Peale testified that the duplicate thereof, signed by Hill, was accidently destroyed by fire. The contract offered by Peale required Hill to canvass the county in a particular manner, to make weekly written reports and to do many other things which were not required by the contract sued on. Peale also offered to prove that the contract of June 22, 1885, had not been carried out by Hill. For Peale it is now contended that the contract dated January 23, 1886, was but supplementary to that of June 22, 1885, but of that no evidence was given. The latter was signed by R. S. Peale & Co. and there is no presumption that Richard S. Peale on June 22, 1885, constituted the firm of R. S. Peale & Co. There is nothing to fill this missing link in the chain of the defense. There is no error and the judgment is affirmed.

Judgment affirmed.


text:
    Adelbert W. Olds v. Chicago Open Board of Trade.

      Trover—Board of Trade Membership—Certificate of.

    1. The measure of damages in an action of trover for the conversion of a paper of no intrinsic value in itself, but evidence of title to a valuable right, interest or property, is the value of the right of which it is evidence of title with interest from the date of the conversion to time of trial.
    2. The cancellation of a certificate of membership amounts to a conversion thereof.
    [Opinion filed September 11, 1889.]

      Appeal from the Circuit Court of Cook County; the Horn Abba ÍT. Wateehan, Judge, presiding.
    Hr. C. H. Willett, for appellant.
    The court erred in refusing to hold that the facts constituted a conversion of the plaintiff’s certificate of membership. The other propositions of law refused depend for their refusal upon this mistake of the trial judge.
    Judge Waterman found that the acts of the directors of the open board were void. Because they were void he held there could be no conversion.
    In People v. N. Y. Cotton Exchange, 8 Hun (15 Sup. C.), 216, it was held to be illegal for a corporation that had issued a certificate of membership to inquire into the qu< lion of its equitable owner.
    The court found that case to be on all fours with the one at bar; and that the open board had no jurisdiction to try the charges against Olds.
    In Thompson v. Adams, 93 Pa. St. 55, it was held that an equitable owner of a seat in the Philadelphia Board of Brokers could not share in the proceeds of a sale of the seat upon the death of the legal owner as against members of the board who are creditors of the legal owner.
    Clearly, if the court found the action of the open board in expelling Olds and canceling his certificate and issuing it to Harks to be illegal, such acts constituted a conversion of his certificate of membership.
    A certificate of membership in the open board is property. Jones v. Fisher, 16 Ill. 68; Weaver v. Fisher, 110 Ill. 146; Hyde v. Woods, 94 U. S. 525; Powell v. Waldron, 89 N. Y. 328.
    The court erred in excluding evidence of the market value of the certificate of membership at the time of its conversion. Sturges v. Keith, 57 Ill. 451; Cook on Stock, Sec. 581, case cited; Dos Passes on Stock Exchange, 801; Sedgwick on Dam. (7th Ed.) 585, cases cited; Field on Dam., Sec. 792.
    The evidence showed that such certificate had a market value in January, 1884, at the time of its conversion. The market value was the lowest measure of damages.

      The measure of damages in illustrative cases: Loss of note; its face and interest. Am. Ex. Co. v. Parsons, 44 Ill. 312. Lost bond: such sum as the plaintiff is entitled to recover from the obligee in the bond. Romig v. Romig, 2 Rawle, 241. A life insurance policy, tortiously obtained, in the absence of other evidence; its face value. Hayes v. Mass. Mutual Life Ins. Co., 125 Ill. 626-637. In trover for titfe deeds : the full value of the estate. Loosemore v. Radford, 9 M. & W. 659; Coombe v. Sanson, 1 Dowl. & Ry. 201; Mowry v. Wood, 12 Wis. 413; Cowles v. Hanley, 12 John. 483. Stereotype plates for printing labels: the face value to the owner. Stickney v. Allen, 10 Gray (Mass.), 352.
    The injured party is entitled to damages which will place him in as good condition as though the wrong had not been committed. 1 Sutherland on Dam., 127, 128.
    In trover, or analogous actions, the title to the property is vested in the defendant after judgment and satisfaction; others hold judgment alone vests title. Wood’s Mayne on Damages, p. 510, n. 3.
    “Want of title must always be specially pleaded and no evidence can be given under the general issue even in mitigation of damages to show that the property really belonged to another person.” Wood’s Mayne on Damages, 562; Finch v. Blout, 7 C. & P. 478; Jones v. Davis, 6 Ex. 663.
    Bringing a suit for damages is a waiver of plaintiff’s right to mandamus to be restored to the open board. State v. Lipa, 28 O. St. 665.
    The finding of one dollar damages was contrary to the evidence.
    The evidence that $500 initiation fee must be paid to become a member, was introduced without objection.
    Dnder such evidence alone, the court should have found $500.
    Messrs. Bisbee, Ahrens & Decker, and D. M. Kirton, for appellee.
   Gary, J.

The case shows that the appellant was a member of the appellees’ board. The certificate of his membership was in the possession of one Saekett. At the instance of Saekett, appellee canceled the certificate. After it was canceled appellant was, by the appellee, excluded from the board. Whether as between Saekett and the appellant, the equitable ownership of the certificate was in the one or the other, is not made clear by this record, and what may be the effect of an inquiry into that ownership, is not touched by this opinion.

It stood in the name of appellant, and was treated by the Circuit Court as his, in awarding him nominal damages.

The declaration is very voluminous, but in effect sets out the circumstances which are a basis for a count in trover for the certificate. Then, treating the action as trover, the question is as to the measure of damages. The paper upon which the certificate was, could have had only an infinitesimal value, but it was the title, or evidence of the title, of the appellant to do business on the board, and the want of it was, by the appellee, treated as the destruction of his right to do business. Both by the offer of testimony and by a proposition of law presented to the court, the appellant sought to have the value of a certificate of membership of the board, with interest, adopted by the court as the measure of damages, which being refused by the court, the appellant excepted. It is apparent that by a certificate of membership the appellant meant, and the court understood, the membership itself—the right to transact business on the board.

In analogous cases this has been generally adopted as the rule, and the value of the right, interest and property of which the paper was the title, or the evidence of the title, has upon conversion of the paper been taken as the measure of the damages. Am. Ex. Co. v. Parsons, 44 Ill. 312; Hayes v. Mass. L. I. Co., 125 Ill. 626.

The cases are numerous and collated to a late date, in 3 Sutherland on Dam., 520 et seq., and 2 Sedgwick on Dam., side paging 488 et seq.

Whatever variation from this rule may be found in the reports, it has not probably been departed from in any case where the instrument converted was the evidence of the title to something withheld by the defendant from the plaintiff, as in this case.

See the distinction made in Daggett v. Davis, 53 Mich. 35.

The intangible membership was not the subject of a conversion; neither is an interest in realty; but the damages for the conversion of a paper of no intrinsic value, which is the evidence of such an interest, are, as against one from whom the interest is derived, who converts the paper and denies the interest, the value of the interest itself.

The court holds that the cancellation of the certificate was a conversion of the paper on which it was, and that for that conversion the measure of the damages prima facie, is the value of the right of which that certificate was the evidence of title, with interest from the time of conversion to the time of trial.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    A. C. Huston v. John H. Boltz et al.

      Sales—Balance on Account—Recovery of—Solicitor of Orders—Evidence.

    In an action to recover the price of a lot of cigars, this court, in view of the evidence, declines to interfere with a judgment for the plaintiffs.
    [Opinion filed September 11, 1889.]
    Appeal from the County Court of Cook County; the Hon. Richard Prbndergast, Judge, presiding.
    Mr. C. M. Hardy, for appellant.
    Messrs. Marston, Au&ur & Tuttle, for appellees.
   Per Curiam.

An opinion was rendered in this case which is found under the title of Boltz et al. v. Huston, 23 Ill. App. 579. The judgment of the Oounty Court was then reversed and the case remanded. On a new trial in that court there was a finding and judgment for appellees in conformity with the opinion of this court. Appellant, believing new and material facts were proven in the last trial, brings the case to this court again for review. Careful examination of the record fails to reveal any material change in the evidence. Any further review of the law or facts would be mere repetition of what is already set forth in 23 Ill. App. 579. The judgment is affirmed.

Judgment affirmed.


text:
    The Chicago City Railway Company v. Frank Wilcox by his Next Friend, etc.

      Street Riilways—Negligence of Employes of—Personal Injury — Rules and Regulations—Preach of—Child Six Years Old—Damages— Loss of Leg—Evidence—Instructions.

    1. Personal negligence is not to be imputed to a child six years old.
    2. A child can not be cut .off from compensation for personal injuries suffered through the negligence of another, for the reason that its mother failed to perform her full duty in protecting him from harm.
    3. The rule may be otherwise where the suit is for the benefit of the next of kin.
    4. The giving of an erroneous instruction which did no harm can not be complained of.
    5. This court declines to interfere with a verdict in the sum of $15,000 in behalf of a child and against a street railway company for the loss of a leg and other injuries suffered through its negligence.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.

      Mr. C. M. Hardy, for appellant.
    Messrs. C. E. Pode and E. F. Mastersou, for appellee.
   Gary, J.

The case made by the appellee on the trial was that in June, 1887, the appellants had a double track street railway operated by an underground cable, on Wabash avenue, in Chicago. At the south side of Harmon Court, an intersecting street, the rear end of a south bound train on the west track had stopped. A north bound train on the east track entered upon the intersection of the streets just as the south bound train was starting southward. The appellee, then a child six years old, was on the west side of Wabash avenue, started to cross it on the south side of the intersection, and as he went by the rear end of the south bound train he was caught by the north bound one, run over, and so injured that he has lost one of his legs, and so little of a stump of it is left, that an artificial leg can not be made available. The opinion of this court on that manner of operating the train has already been expressed in Chicago City Railway Company v. Robinson, 27 Ill. App. 26, but it being on a question of fact, a more valuable opinion is that of the company expressed in one of their rules as follows: “Drivers must bring their trains to a full stop when nearing a train on the other track which has stopped or is nearly stopped to let off or receive passengers, and will not proceed until the same can be done with perfect safety. After train is stopped, brakes will not be released until signal is given to start.”

The stepmother of the boy was on the east side of Wabash avenue and she and the boy saw each other. She warned him by motions from crossing while the south bound train was crossing Harmon Court; she saw the north bound train approaching, but did nothing to prevent the boy from crossing the street in front of it.

The record is very meager as to the condition in life of the father and stepmother of appellee. All of the instructions asked by the appellants were given, and of those given on behalf of the appellee the only one criticised is as follows;

“3. The court instructs the jury for the plaintiff, that if they, from the evidence, believe that the parents are working people and that the father was not present at the time of the accident, and that the mother was attending to her usual occupation in attending their little store on Harmon Court, in such event the law does not require that persons in their situation in life shall keep constant watch over their children, nor can the want of such care be imputed to the child on account of its age, he being seven years of age or about that, at that time. The fact that a mother on discovering that her infant child is in imminent danger, failed to take the most prompt measure to rescue it from the impending danger will not be imputed as negligence, where it appears she was so excited as to be incapable of calm and deliberate judgment.”

This instruction makes a mistake of a year as to the age of the appellee. There is no dispute in the record as to the fact that he was but six, and, therefore, personal negligence is not to be imputed to him. C. & A. R. R. Co. v. Becker, 84 Ill. 483; 2 Thomp. Neg., 1181.

But if the condition in life of the parents, and their conduct toward the appellee, as affected by that condition, be a matter to be considered by the jury, the instruction assumes too much.

To the generation of lawyers who, in their earlier reading, found the case of Bush v. Steinman accepted as law, the doctrine was also taught that one injured by the concurrent negligence of two carriers, by one of whom he was being conveyed, had no remedy against the other. That doctrine is now rejected by the highest court of this State, and by the highest court of the Nation. W., St. L. & P. R. R. Co. v. Shacklet, 105 Ill. 364; Little v. Hackett, 116 U. S. 366.

And that a child suing for wrong dono him shall be cutoff from remedy because others neglected their duty to him, is a doctrine going into “ innocuoxts desuetudeP It is assumed but avoided in C. & A. R. R. Co. v. Gregory, 58 Ill. 226. When the suit is for the benefit of next of kin, negligence of parent may be a bar. T., W. & W. R. R. Co. v. Grable, 88 Ill. 441. It has never in this State been decided to be a bar when a child was plaintiff. The recent text writers repudiate the doctrine and cite numerous cases to support their position. Cooley on Torts, 818, 2d Ed.; Bishop Non-cont. Law, Sec. 681; 2 Thomp. Neg., 1181 et seq. In this view of the case the instruction quoted becomes wholly immaterial, and giving it could have done no harm and is therefore no error.

The damages are large, that is, a large sum of money— $15,000. Are they more than compensation ? If the a] pellee is entitled to anything he is entitled to full compensation. Is that limited to making good the probable pecuniary loss to him from having but one leg to go upon, either natural or artificial, or shall other deprivations which can not be recited without the use of language which excludes arithmetic be taken into account ? His life is wrecked, whether for business or pleasure. Hope is denied him. By the various tables of mortality at the time of the trial his expectation of life ranged from forty to fifty years. “ Where suffering in body and mind is the result of injuries caused by negligence it is proper to take them into consideration in estimating the amount of damages.” H. & St. J. R. R. Co. v. Martin, 111 Ill. 219; Ind. & St. L. R. R. Co. v. Staples, 62 Ill. 313.

“ Of the amount, under the facts, the jury were the sole judges, and where no other evidence of prejudice or passion appears in the finding, courts seldom set aside a verdict for excessive damages in an action like this.” Ill. Cent. v. Simmons, 38 Ill. 242.

And see, also, opinion by Bailey, J., in C. & E. I. R. R. Co. v. Holland, 18 Ill. App. 418.

As was said in the case cited from 38 Ill. the court “ will not take the responsibility of determining ” that the damages are exorbitant. The judgment must be affirmed.

Judgment affirmed.


text:
    George T. Williams v. Hugh Daly.

      Sales—Real Property—Merchantable Title—Copy of Abstract—Deposit —Recovery of—Evidence—Bill of Exceptions.

    1. In an action to recover a deposit under a contract for the sale of real estate upon the ground that the merchantable title contracted for had not been offered, this court declines, in view of the evidence, to interfere wilh the judgment in behalf of the plaintiff.
    2. A would-be purchaser is not obliged to extend the time in which to furnish such abstract, but is entitled to rescind upon the expiration of the time agreed upon, and have his deposit paid over.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Hanecy & Merrick, for appellant.
    Mr. J. W. Waughop, for appellee.
   Gary, J.

Following the stipulation are several blank sheets, and then a stiff brown paper sheet on which the file mark of the clerk of the Superior Court appears. It is a plausible conjecture that tnose sheets marked “Exhibits” are those that should have been inserted in the bill of exceptions, but it is the signature of the judge that authenticates, though the party is. responsible for the sufficiency and certainty of the bill. Emerson v. Clark, 2 Scam. 489; Rogers v. Hall, 3 Scam. 5; Liverpool v. Sanders, 26 Ill. App. 559; C. M. & St. P. Ry. Co. v. Yando, 26 Ill. App. 601; same case, 127 Ill. 214.

But looking at everything that has been brought here, the judgment is right. The appellee made a deposit of $200 on a purchase of real estate, and contracted for a merchantable abstract. The abstract offered seems to have been made by taking a copy in writing from a former abstract made by another office, taking a letter press copy from that copy and from the letter press copy, copying again. The original abstract was net presented.

Treating the question of what is a merchantable abstract, as the part'es themselves do, as one of fact, the finding of the judge of the Superior Court is supported by a preponderance of the evidence. It appears that the examination of abstracts, and passing upon titles, is generally done by lawyers. Three of them testified that the abstract was not merchantable ; none to the contrary. Three real estate dealers thought it was merchantable, apparently because they thought lawyers would accept it.

The appellee was not obliged to extend the time for furnishing an abstract, but was entitled to rescind and have his deposit back.

Judgment affirmed.


author: Mobah, J.

text:
    Chicago City Railway Company v. Lucien Pelletier.

      Street Railways—Personal Injuries—Assault by Conductor—Liability of Company—Evidence—Instructions.

    1. The conductor of a street car may eject therefrom a person, whether he has paid his fare or not, who will not behave with common decency, using such force only as may be necessary for the purpose. But such ejectment must not take place at a time and under circumstances which make it dangerous to life and limb.
    2. In an action brought by a passenger upon a street car to recover for injuries suffered through being pushed therefrom by the conductor thereof, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
    Mr. C. M. Hardy, for the appellant.
    Mr. F. W. Tourtellotte, for the appellee.
   Mobah, J.

This is an appeal from a judgment rendered in favor of appellee and against appellant, for an injury alleged to have been received by appellee by his being pushed from one of appellant’s horse cars by the conductor thereof while the said car was in motion.

Appellee’s evidence tended to show that appellee and a companion named Olsen, boarded a north bound car on Halsted street near the Stock Yards; that Olsen paid the conductor ten cents, the fare for himself and appellee; that in a few moments the conductor asked appellee for his fare and was told that Olsen had paid for appellee as well as himself; that the conductor denied this and insisted that Olsen had paid him only five cents, and told appellee if he did not pay his fare he would put him off the car. Appellee declined to pay, and insisted that the fare had been paid once, and the conductor stopped the car and took hold of appellee and put him off. That after the car started appellee ran after it and got on again, and his fare was again demanded by the conductor, and on his refusal to pay the car was again stopped and after a considerable struggle with the conductor he was again put off, but again ran after the car and got on the rear platform. He rode for some little distance, the conductor in the meantime disputing with Olsen about the payment of the fare, Olsen insisting that appellee had a right to ride as his fare had been paid once; when, without saying anything further to appellee about getting off, the conductor ran at him and violently pushed him off the platform while the car was in motion, in such a manner that appellee was thrown under the feet of a horse that was standing at the curb stone and was trampled upon by the horse and severely injured. The account of the matter given by witnesses called for appellant was in many material points in direct conflict with appellee’s evidence, but the verdict of the jury must be taken as settling such conflict in favor of appellee. Appellant urges that the court erred in giving the jury, at the request of the plaintiff, the following instruction:

“1. The jury are instructed that even if the jury believe from the evidence that the plaintiff did not pay his fare, or some one pay it for him while riding on defendant’s car, and the conductor of said defendant’s car, then in charge of the car, did not undertake to remove him in a peaceful manner, using no more force than was necessary, but pushed or threw him off the car while the car was in motion, and without any immediate warning, and he was injured thereby, then the defendants are liable for such injury and damage.”

There was evidence introduced by appellant tending to show that at the time appellee was last put off, he was using vulgar and indecent language in a voice loud enough to attract the attention of the passengers upon the car, among whom were several ladies, and the complaint against the instruction is, that it ignores as a ground on which the conductor would have a right to eject him, appellee’s conduct in that regard. But the instruction is not addressed to the grounds for putting appellee off, but to the manner of putting him off. The conductor could no more push him off the car while it was in motion for using indecent language than for refusing to pay fare.

Undoubtedly, if he was using profane, vulgar and indecent language, having a tendency to offend and annoy passengers, the conductor would have the right to stop the car and order him off, and on his refusal to go, might eject him, using such force as might be necessary for that purpose. A person who will not behave with ordinary decency upon a car, and will not leave it at the command of the conductor, may be treated as a trespasser thereon, whether he has paid fare or not, and as such ejected. But the law will not justify the ejection of a trespasser by the conductor or other agent of the company^ at a time and under circumstances which make it dangerous to his life or limb.

The rules and the rights of the company must he enforced by its servants and agents with prudence and caution, and trespassers removed from the cars without the exercise of undue, unreasonable and malicious force, in a lawful and proper manner and without the infliction of unnecessary injury. C., M. & St. P R. R. Co. v. West, 24 Ill. App. 44; State of Minn. v. Thomas Kinney, 34 Minn. 311.

The instruction stated the rule of law correctly and is not obnoxious to the criticism alleged against it. Some complaint is made of the modification by the court of one of appellant’s instructions. The change made by the court was very slight and in no manner altered the law of the instruction as asked. There was no error in said modification.

Counsel has argued the facts at great length, hut there being no error in the law and the evidence being in sharp conflict, the verdict of the jury, as we have before said, must be taken as conclusive, on the issues submitted to them. The judgment of the Superior Court must be affirmed.

Judgiaent affirmed.


text:
    Robert S. Ingalls v. Joseph C. Allen.

      Master and Servant—Wages — Commission — Recovery—Change in Occupation—Set-off—Evidence.

    Where a given employment continues with no radical alteration in the character of the services rendered, the original contract fixes the rate of wages to be paid.

      [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Messrs. Frank J. Crawford and C. J. Ward, for appellant.
    Allen’s claim for a commission of $150, included in his bill of particulars, is destitute of merit, and should have been excluded. Kunde and Ingalls both flatly contradict Allen’s testimony on the subject, and cast discredit upon liis statements. If he testified falsely on that subject his testimony in respect to the other transactions uncorroborated is unreliable and unworthy of belief. “Falsus in uno, falsus in omnibus

    It is settled law that before a person is entitled to brokerage or commission he must have been employed to negotiate the sale or purchase of an estate, and the sale or purchase must have been effected through the agency or instrumentality of the broker on terms agreed upon by the parties. McGavock v. Woodlief, 20 How. (U. S.) 221; Barnard v. Monot, 42* N. Y. 204; Rees v. Spruance, 45 Ill. 308; Carter v. Webster, 79 Ill. 435; Pratt v. Hotchkiss, 10 Ill. App. 606; Sievers v. Griffin et al., 14 Ill. App. 63.
    Messrs. D. J. & H. D. Crocker, for appellee.
   Moran, J.

This action was brought by appellee to recover from appellant wages at the rate of $40 per month, from January 1, 1885, to Hovembcr 1, 1887, during which time appellee claimed to have been in the service of appellant, and also to recover $150 which appellee claimed appellant promised him if a certain farm of appellant’s should be sold by appellee’s aid, and for some items of money advanced. Appellee went to Kansas to oversee and manage a ranch for appellant under an agreement, as appellee testifies, that he was to be paid $40 per month and his board and the expense of traveling. Appellant admits that appellee went to Kansas to manage his ranch, but denies that there was any contract as to what his wages should be, and contends that he was not qualified for, or capable of managing the ranch or performing what he undertook to perform. In the spring of 1889 appellee returned from Kansas, and as he claims, by direction of appellant went to work for him at Oak Park in and about a hotel and livery stable which appellant was operating at that place. Appellant insists that appellee was not in his employ at Oak Park, but that he was appellant’s partner in running the livery stable, and boarded at appellant’s hotel, and appellant claims to recover for said board in this suit by way of set-off.

On all the material points of dispute between appellant and appellee, the evidence is in irreconcilable conflict, and it was therefore the province of the jury to determine by their verdict which party was entitled to be believed, and it is not . competent for this court to disturb the conclusion reached, unless some error of law has intervened.

Appellee testifies that nothing was said about the rate of wages when the employment was changed from the Kansas ranch to the Oak Park hotel and livery stable, and the court gave to the jury, upon that state of facts, the following instruction:

“If the jury believe from the evidence that the defendant employed the plaintiff at an agreed sum per month and expenses, to proceed to Kansas and take charge of a farm, the property of defendant, for an indefinite period, and that subsequently defendant requested plaintiff to return to Chicago and proceed to Oak Park to do certain other work for defendant, and the plaintiff did both with no other different arrangement as to salary and expenses, then plaintiff is entitled to recover for the full time he so remained in defendant’s employ at the rate agreed upon in the first instance.”

Appellant complains of the instruction and insists that the return from Kansas was the end of that employment, and that if appellee went to work for appellant at Oak Park without any agreement fixing the wages, he was entitled to recover only what his services might be shown to be reasonably worth. We can not agree with counsel’s contention. There is no evidence in the case to show the work of supervising a hotel and livery stable is so greatly different in character from that of managing a ranch as to form a basis for the legal implication that the rate of wages altered on a change from one employment to the other without anything being said by the parties to the contract. Where the employment continues, with no radical alteration in the character of the service rendered, the original contract may justly be regarded as fixing the rate of wages to be paid. Grover & Baker S. M. Co. v. Bulkley, 48 Ill. 189.

We think, therefore, that the instruction as given by the court, stated the principle correctly. There is some complaint of the modification by the court of some of defendant’s instructions and of the refusal to give others. We have considered the suggestions of counsel with reference thereto, and can not agree that the court committed any error in that regard.

There is no ground for the interference by this court with the verdict of the jury on the judgment of the Circuit Court rendered thereon, and said judgment will therefore be affirmed

Judgment affirmed.


author: Mohan,- J.

text:
    Emma A. Leahy v. John V. Hair.

      Agency—Sale of Real Estate—Commissions—Recovery—Title—Evidence of Attorney as to—Verdict.

    1. Whether a title to. real estate is good or not, is a question of law, and an attorney who is a witness is not to state what his opinion is on such question, but must give the facts as to the title if he knows them, only, and it is for the court to state to the jury whether the title is good if the facts are found as claimed.

      2. To recover commissions on the sale of a piece of real estate, the burden of proof is upon the agent to show that the purchaser furnished by him was ready, willing and able to complete the purchase on the terms proposed.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant.
    The verdict was against the evidence.
    To earn his commissions, the broker must furnish a purchaser who is ready, willing and able to complete the purchase on the terms proposed. Sievers v. Grifiin, 14 Ill. App. 63. Such a purchaser was not furnished. The defendant did not accept S. J. Leahy as a purchaser or make a valid contract with him. The payment of money does not, in itself, show an acceptance of the purchaser. Heinrich v. Korn, 4 Daly, 75. Nor does the sale to him of an option. Pierce v. Powell, 56 Ill. 323; Kimberly v. Henderson, 29 Md. 521. Giving a deed to the grantee named in it for inspection, and on his promise to return it, is not a delivery and will not pass title. Gilbert v. North Am. F. I. Co., 23 Wend. 43; Braman v. Brigham, 26 N. Y. 483 (491-2); 3 Washburn Real Est., 300.
    The special findings were against the evidence. Improper evidence was admitted.
    An attorney’s opinion is not competent to prove a defect in the title to land. Conversation with a third party is not competent, unless the one against whom the evidence works is present. An offer of compromise may not be given in evidence against the one who makes it. Paulin v. Howser, 63 Ill. 312; Rockafellow v. Newcomb, 57 Ill. 186. A non-suit should be granted when plaintiff fails to make a case.
    Mr. B. W. Ellis, for appellee.
   Mohan,- J.

Appellee recovered a judgment in the Circuit Court against appellant for $625 for commissions in the sale of certain real. estate. The evidence tended to show that appellant, by Isaac E. Adams, her agent, left the property with appellee for sale at the price of $25,000.

Appellee brought one Michael J. Corboy to Adams and a contract was made for the purchase of the property by him at the price asked, signed by Adams as the agent of appellant, and Corboy paid $500 on the contract.

Corboy’s attorney objected to the title and some negotiation was had between Adams and appellee, the result of which was that Corboy got his $500 back and stepped out of the transaction, and appellee negotiated a sale to one Stephen J. Leahy of the said property for the same price which Cor-boy had agreed to pay. There is an issue of fact between the parties relative to this substitution of Leahy as the purchaser; appellee claimed that the substitution was made at the suggestion of Adams because Adams did hot want to go to the trouble of obviating the objections which Corboy’s attorney made to the title, and Adams contending that appellee expected to sell Corboy another piece of property, and desired Leahy to be substituted as the purchaser of appellant’s property so as to make two commissions.

As the jury found in-answer to one of the special questions put to them that the negotiations for the sale of this property to Corboy were abandoned with the consent of appellee, this particular dispute is eliminated from our present consideration, and the question arising on the present record is whether the verdict for commissions for a sale of the property to Leahy can be sustained upon the evidence as therein set forth.

The terms on which Leahy was to take the property were the payment by him of $5,000 in cash, and the deferred payments to be secured by trust deed on the property. Leahy made a deposit of $1,000 with Adams, but the evidence is clear and uncontradicted that he never paid or offered to pay the balance of the $5,000 cash payment, and it is shown that he, shortly after agreeing to take the property, failed in business and applied to Adams for the return of the $1,000 deposited, stating that he was unable to carry out the trade. The burden was on appellee to show that the purchaser furnished by him was ready, willing and able to complete the purchase on the terms proposed, and so the court instructed the jury; but notwithstanding the verdict of the jury, an examination of the evidence satisfies us that not only did appellee fail to show by a preponderance of the evidence that Leahy was able to carry out the trade but the preponderance of the evidence is clearly the other way. In fact the proof that he could not, and did not, complete the purchase, is substantially uncontradicted.

It necessarily follows that this verdict can not stand. As the case will have to be re-tried and the claim on the paid of appellee that he furnished in Corboy a purchaser willing and able to take the property on the proposed terms, if the title had proven good, will be then open to re-investigation, with the other questions in the case, we will pass on a point made by appellant with reference to the admissibility of certain evidence relating to that branch of the case. The attorney who examined the title for Corboy was allowed to state on the stand that the title was not good; that appellant’s title failed. Whether a title is good or not is a question of law. An attorney who is a witness is not to state what his opinion is on such question of law, but may state the fact as to the title, if he knows what the facts are, and it is for the court to state to the jury whether the title is good if the facts are found as claimed. See Parmly v. Head, 33 Ill. App. 134; Mead v. Altgeld, 33 Ill. App. 373. The judgment will be reversed and the case remanded for a new trial.

Reversed and rememded.