author: Mobatt, J.

text:
    George B. Walker v. James F. Cook.

      Witnesses—Fees—Experts—Fees in Excess of Legal Amount—Recovery of—Promise to Pay—Obligation to Testify—Subpoena.

    1. The usual or reasonable value of professional services is a question of fact, and not of science, calling for a professional opinion.
    2. Where a duty is imposed by law and the compensatfon for its performance fixed by law, no greater compensation can be exacted or enforced.
    3. A witness having attended court in obedience to a subpoena, is not entitled to recover upon an agreement for compensation for such attendance, exceeding in amount the legal fees.
    [Opinion filed October 28, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding.
    Mr. Joseph W. Callahan, for appellant.
    Every court having power to definitely hear and determine any suit, has, by the common law, inherent power to call for all adequate proofs of the facts in controversy, and to that end, to summon and compel the attendance of witnesses before it. 1 Greenleaf on Evidence, Sec. 309.
    An undertaking to do that which one is under legal obligation to do will not furnish a consideration to support a promise. Ayres v. Chicago, etc., Railroad, 52 Iowa, 477; Tilden v. Hew York, 56 Barb. 340; Elbin v. Miller, 78 Ky. 371; Morrick v. Giddings, 1 Mackey, 394; Keffer v. Grayson, 76 Virginia, 517; Sherwin v. Bingham, 39 Ohio State, 137.
    Fees or costs can not be allowed or recovered unless they are fixed and given by statute. Smith v. McLaughlin et al., 77 Ill. 596; see 1 Greenleaf on Evidence, Sec. 310; Starr & C. Ill. Stat., Chap. 53, Sec. 47; Chase v. De Wolf, 69 Ill. 48; Camp v. Morgan, 21 Ill. 255.

      If the statute has fixed the fees to be charged for a particular service, the party rendering the services will be confined to the statutory fee, and can not recover on a quantum meruit. Smith v. McLaughlin, 77 Ill. 596.
    A physician, like any other person, may be called to testify as an expert in a judicial investigation, whether it be of a civil or criminal nature, without being paid for his testimony as for a professional opinion. Ex parte Dement, 53 Ala. 389; Summers v. The State, 5 Texas Ct. of App. 365; See Wright v. The People, 112 Ill. 540.
    What ordinary professional services are reasonably worth is a question of fact. Pfeil v. Kemper, 3 Wisconsin, 315; Stanton et al. v. Embrey, Adm’r, 93 U. S. 548; Rosenthal v. Boas, 27 Ill. App. 430; Linn v. Sigsbee, 67 Ill. 75; City of Chicago v. McGiven, 78 Ill. 347; Pennsylvania Co. v. Congdon, 101 Ill. 93.
    A witness is bound, as a matter of public duty, to testify as to facts within his knowledge. Webb v. Page, 1 Car. & Kir. 23.
    That compensation of witnesses for loss of time is not allowed, see 1 Greenleaf on Evidence, Sec. 310, n. 2, and authorities there cited.
    Messrs. E. J. Hill & Son, for appellee.
   Mobatt, J.

Appellee brought this action in a justice court to recover compensation for attendance as a witness in a suit in which appellant was the plaintiff.

There was judgment against appellant in the justice court, and he appealed the case to the Circuit Court, where it was submitted to the court for trial without a jury, and a fin ling and judgment rendered against appellant for $50 and costs.

Appellee’s evidence showed that he was subpcenaed as a witness and attended court for eleven days, while the case was on call, reporting to appellant’s attorney and remaining each day till the notice, “Ho further call,” was posted. That before the subpcena was served appellant told him that he wanted him as a witness, and appellee said he had other business to attend to, whereupon appellant told him he would pay him just as well as if he was to attend to his patients.

The question raised is not whether an expert can recover extra compensation, when it is promised to him for attending and testifying to some matter pertaining to his particular branch of science. The question on which appellee was to testify, was as to the reasonable value of professional services rendered.

The usual or reasonable value of professional services is a question of fact, and not a question of science, calling for a professional opinion.

True, physicians may be better acquainted than others with the customary or usual charges made by the profession, but so dry goods merchants will know best as to the value of cotton cloth. Heither the value of the services nor the value of the cloth can be proved by what is known as expert testimony. Linn v. Sigsbee, 67 Ill. 75.

The question is, whether a witness who attends upon a subpoena to testify to a fact or facts within his knowledge, can recover from the person in whose behalf he is subpoenaed, on a promise to pay him more than the regular fee allowed by statute for attendance as a witness.

Every person is under a legal obligation to attend in obedience to a subpoena and testify to such facts material to the case in hand as may he within his knowledge. The statute has fixed the compensation for such attendance, and it is a rule general in its application, that where a duty is imposed by law, and the compensation for its performance fixed by law, that no greater compensation can be exacted or enforced. Bishop on Contracts, Sec. 47; Joliet v. Twohey, 1 Ill. App. 483; Decatur v. Vermillion, 77 Ill. 315.

This rule was applied to the claim of a witness at an early day in England in the case of Collins v. Godefroy, 1 B. & Ad. 950, where it was said: “If it be a duty imposed by law upon a party regularly subpoenaed to attend from time to time to give his evidence, then a promise to give any remuneration for lost time incurred in such attendance is a promise without consideration.” In Smith v. McLaughlin, 77 Ill. 596, certain physicians who liad been subpoenaed by the coroner to make a post mortem examination, presented a claim for their services against the estate of the deceased. The court in the opinion, after stating that the statute made no provision for the payment of witnesses who are summoned to attend a coroner’s inquest, says that if fees had been fixed for them, the sum thus fixed would have to control. “A witness or officer of the law,” said the court, “has no legal right to recover on a quantum meruit for services rendered under the requirements of the law. For such services he is limited to the fee or compensation fixed by statute.”

There was in that case no promise by any person to pay the witnesses for attendance, so the exact question presented by this record was not before the court.

We are not, however, without respectable authority directly in point. In Dodge v. Stiles, 26 Conn. 463, the plaintiff was subpoenaed as a witness for the defendant and received his legal fees. Before he was summoned defendant agreed with him to pay him as much per day for attending court as he could earn at his trade in addition to his legal fees. Suit was brought to recover upon said agreement, but the court held that to enforce the contract would be against the policy of the law. In the opinion it is said : “ Were it otherwise, and witnesses might be allowed to make terms for testifying, there would, be room for oppressive conduct, and for corruption. Witnesses knowing that their testimony was indispensable would, under one pretense or another, make terms for their testimony, and such as might be induced to represent their testimony as important would be tempted to barter their oaths at the expense of truth and justice. How, a promise to pay more than the statute fees for just this stated service, without further service or loss by the witness, may be said to be without consideration. It can not be important, in our view, whether the promise be made after the service of subpoena, contemporaneously with it, or before, provided the promise refers to this duty, and is founded on no other consideration.”

Appellee having been subpoenaed and having attended court in obedience to said subpama, is not entitled to recover on the agreement he sets up. If no sub preña had been served upon him, and lie had attended as a witness under an agreement for compensation made with appellant and not in pursuance of the process of the court, a different question would be presented.

The judgment of the Circuit Court must be reversed and the case remanded.

li ever sed cmd remanded.


source: Caselaw Access Project

author: Gary, P. J".

license: Public Domain

text:
    Forest Glen Brick & Tile Company v. Chicago, Milwaukee & St. Paul Railway Company.

      Railroads—Fires—Sparks—Latest and Most Approved Appliances— Use of Locomotive Stacks—Evidence—Instructions'.

    1. A railroad company may not, because of the exigencies of its business, inflict avoidable loss upon the owners of adjacent property. Such company must use every possible precaution by adopting all the best and most approved mechanical inventions, to prevent loss by fire along the line of its road.
    2. An instruction which leaves it to the jury to find that a railroad company performed its duty by using means to prevent the escape of sparks not so good as the best and most approved, is erroneous.
    [Opinion filed October 28, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. Adelbert Hamilton, for appellant.
    1. All the evidence in this case tends to show that this engine, 554, set this fire; the wind, the weather, the proximity of engine and yard, the close, circumstantial connection in point of time between the engine going by and the starting of the fire—all these facts make it an irresistible conclusion that engine 554 destroyed the property of this plaintiff.

      2. Was it an unexcused act of negligence? Under the statute of Illinois relating to railway fires, the fact that the fire was communicated by the engine “shall be taken as full prima facie evidence, to charge with negligence the corporation * * * in the use and occupation of such railroad.” 2 Starr & C. Ill. Stats. 1949, p. 104.
    There was an improved spark arrester, known by the com pany. If it had been put on engine 554—the engine that was a “spark thrower,” a “bad engine ”—it would not have thrown sparks and set our property on fire.
    What now was the diligence of the company defendant in adopting this appliance for fire prevention ? This is an important question, because Judge Conger, one of the Justices of the Appellate Court in the Third District, speaking for that court in regard to the duty of railway companies to provide adequate spark arresters, said: “We think the true rule is that it is the duty of railroads to use every possible precaution to prevent loss to others by escape of fire from their engines, by the highest degree of diligence in ascertaining and adopting the best or the most approved mechanical inventions and appliances to prevent the escape of fire.” C. & A. R. R. v. Hunt, 24 Ill. App. 644, 647.
    For more than two years, until, in fact, August, 1886, the company never moved toward adopting this improvement on their freight engines. It was absolutely inactive ; and when, in August, 1886, the order did come to put the extension arch upon freight engines, it was to be done only when the engines came in for “ general repairs,” that is, when they were worn out or wrecked.
    The court erred in giving to the jury defendant’s instructions 2 and 3, wherein the criterion of reasonable care is made the use by defendant of a spark arrester, generally used and adopted.
    In one railway fire case the court says : “ The sole question is, whether defendants did their duty, by using known agencies in general use, in order to prevent such accidents. It is undoubtedly their duty to use great care, and to adopt the best precautions which are in general use, to avoid such danger. If defendants used ordinary care and skill in procuring such spark arresters as are generally in use in the country, and are approved by experienced railroad operators, and were not guilty of any negligence in that respect, then they are not liable for the plaintiff’s loss, if they caused it. If, on the contrary the accident was due to their negligence in not providing their engines with those means in common use, then they are responsible if the accident was the result of that. ” Gowen v. Glaser, 10 Att. (Pa.) 417.
    In another case the following instruction was given and approved: “It is negligence to use cars dangerous in their construction, when there are others to be secured which are not dangerous; and railroad companies are bound to procure the best, otherwise they must be held responsible.”
    “We can not hold this instruction as incorrect,” said the court. St. L. & S. E. Ry. Co. v. Valerius, 56 Ind. 519.
    It is a question for the jury to decide, says the New York court, whether, upon the evidence, a railroad company is guilty of negligence in not ascertaining the utility of, and adopting, an improvement to protect passengers from injuries by accidents to which the cars are liable. Hegeman v. The Western R. R., 13 N. Y. 9.
    In another New York case the railway company had tested and partially adopted a new form of switch, but neglected to adopt it at a point where it might have prevented an accident, had it been used.
    “ It has been held, ” said the court, “ that railroad companies are bound to avail themselves of all new inventions and improvements known to them, which will contribute materially to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated. Undoubtedly this rule is to be applied with a reasonable regard to the ability of the company and the nature and cost of such improvement; but within its appropriate limits it is a rule of great importance, and one which should be strictly enforced. A stronger case for the application of the rule than is here presented could scarcely arise. The improvement related to a part of the apparatus of the road, which is the source of numerous accidents. Its utility was undoubted, and the expense trifling. The defendants had themselves recognized its value. If the principle should ever be applied, therefore, it should be applied here. The defendants were clearly in default in permitting the short switch to remain in use upon the road, especially at aplace where there was a somewhat unusual complication of switches. The judge was fully warranted, therefore, in submitting this question of negligence to the jury, even if he would not have been authorized to assume, as matter of law, that the company had neglected their duty in this respect.” Smith v. N. Y. & H. R. R. Co., 19 N. Y. 133.
    Similarly, the question of negligence by defendant in the case at bar, in not having put the extension arch and straight stack upon its freight engines, and particularly upon ifo. 554, should have been brought squarely before the jury. As a matter of fact defendant’s instructions ignored it wholly.
    “It is incumbent, therefore, on the companies, to use the greatest precaution, so as to secure the engines against emitting sparks.” Bass v. C., B. & Q. R. R. Co., 28 Ill. 18. (1862.)
    “As this court has already had occasion to remark, it is not requiring too much of railway companies, which are sending over the country so dangerous an element as fire, that they should use all the appliances of science, and the highest degree of diligence to prevent the destruction of the immense amount of property contiguous to their lines.” St. Louis, etc., R. Co. v. Gilham, 39 Ill. 457. (1866.)
    Per Mr. Justice Breese: “ If or can I think the care and diligence a prudent man would use about his own property is of the same grade as that required of railroad companies. For the safety of the people and their property a degree much higher ought to be required. The care and diligence required in every case should have some relation or affinity to the nature of the business and of the instrumentalities by which it is conducted. The opinion of the majority of the court shows this.” Ill. Cent. R. R. Co. v. Mills, 42 Ill. 412. (1866.)
    But see O. & M. R. R. Co. v. Shanefelt, 47 Ill. 500, where the/legree of diligence required of a corporation and individual are declared to be equal as to clearing combustibles from right of way and from adjacent property.
    “These bodies (railway corporations) should be held to the exercise of due diligence in operating their machinery. They should be required to provide and keep constantly in use and in proper repair the most approved machinery to prevent fire from spreading from their engines,” etc. T. P. & W. R. Co. v. Pindar, 53 Ill. 450. (1870.)
    At this date the court indicate that it is the duty of a railway company to “ use all proper and reasonable precaution to prevent the escape of fire from their engines, by the application of the best and most approved mechanical appliances for that purpose.” They say, moreover, that in order to meet a prima facie case of negligence the defendant company must “ show by affirmative evidence that the engine at the time was equipped with the necessary and most effective appliances to prevent the escape of fire.” C. & A. R. R. Co. v. Quaintance, 58 Ill. 392, 393. (1871.)
    This year the court say : “The law holds them (railway companies) to the exercise of a very high degree of care and skill in the use of the most effective appliances" to prevent the emission of fire sparks from their engines,” and “when they have exercised the highest degree of care and skill in this regard, if loss occurs it must fall on the owner.” T. W. & W. R. Co. v. Larmon, 67 Ill. 71. (1873.)
    “The law doubtless required defendant to use every possible precaution, by the use of all the best and most approved mechanical inventions, to prevent the loss by fire along its road.” C. & A. R. R. Co. v. Pennell, 94 Ill. 488. (1880.)
    “We think the true rule is that it is the duty of railroads to use every possible precaution to prevent loss to others by escape of fire or sparks of fire from their engines by the highest degree of diligence in ascertaining and adojffing the best or the most approved inventions and appliances to prevent the escape of fire.” Appellate Court in Hunt v. R. R. Co., 24 Ill. App. 647. (1886.)
    Messrs. Walker & Eddy, for appellee.
    Instructions 2 and 3 given on behalf of the defendant in the court below, complained of in appellant’s brief, it is submitted, contain a fair and correct statement of the law applicable to the case. They should be read in connection with the instruction given on behalf of the plaintiff, in which the jury are instructed that in order to rebut the prima facie case of negligence established by the defendant, the defendant must show that it, the defendant, “up to and at the time of said fire had used a reasonable degree of diligence in ascertaining and adopting the best and most approved mechanical inventions and appliances upon its said locomotives for preventing the escape of said sparks, cinders or fire, and if the jury believe from the evidence that the defendant has not used due diligence in this respect, and that by reason of its failure so to do,” etc., verdict must be for the plaintiff.
    The words complained of in the second instruction, that the defendant in the construction of its engines “ must use good and sufficient netting or spark arresters, such as are most in use or such as have been approved by experienced railroad operators and mechanics, at or before the time of its fire,” etc., are strictly in accordance with the law as laid down in C. & A. R. R. v. Hunt, 24 Ill. App. 644; T., W. & W. R. R. Co. v. Corn et al., 71 Ill. 493.
    Certainly no higher degree of diligence could be required of a railroad company than that stated in the third instruction given on behalf of the defendant company in the court below, and which is also complained'of by appellant, wherein the jury is instructed that in order to relieve the defendant they must find that the defendant’s engines “were equipped with proper appliances to prevent the escape of fire, such as suitable and proper netting, combs, ash-pans and dampers, and that in the construction of the smoke-stacks of the defendant’s locomotives the netting or spark arresters and other appliances to prevent the escape of fire were of the kind and character that had been generally used upon railroads upon coal-burning engines, and were extensively used at the time of the burning, and that in the construction, use and operation of its locomotives the defendant had exercised reasonable and proper care and diligence” (exactly the language approved by the court in C. & A. R. R. Co. v. Quaintance, 58 Ill. 392), then the court,” etc. The opinion of the Appellate Court above cited, distinctly says that a railroad is relieved by adopting the best or most approved mechanical invention and appliance to prevent the escape of fire. That is to say, it might adopt the newest and latest invention, though in doing so the burden of proof would be thrown upon it to show not only that it was the latest and newest invention for preventing the escape of fire, but also that it was better than the appliances most generally in use, or the company may use the most approved appliances, i. e., those appliances most generally in use on railroads, and be relieved from all liability. It is not contended in this case that the defendant was at all negligent in discovering the merits of the straight stack, but it is contended that defendant did not use due diligence in making the change. But that contention is mere argument on the part of the appellant, as there is not a scintilla of evidence in the record to show that the defendant could have changed its 795 engines in less time than it did make the change; on the contrary, the record on this point shows that the change was made as rapidly as it could be made consistent with defendant’s duties as a public carrier.
    There is nothing, either in the direct testimony or in the cross-examination of defendant’s witnesses, to show that under any circumstances the change could have been more quickly made. Of what effect, therefore, would it have been to have made the instructions stronger as to the diligence- required in making the change?
   Gary, P. J".

"Very soon after midnight on the morning of April 23, 1887, a house, barns, sheds, etc., of the appellants, situated upon their premises adjoining the railroad of the appellees, were burned, and appellants allege, by fire kindled by the sparks thrown from a locomotive of appellees.

Many trains of the appellees passed the premises of the appellants during the night, but the appellants fix upon locomotive ETo. 554, passing their premises at 12:02, going north, as th e misch ief maker. Whether they are right in that position is a question for a jury. On coal-burning locomotives the case shows there are two kinds of stacks in use. The earlier kind is known by the name of diamond stack. The later, and as it is claimed by appellants, the safer kind for adjacent property, is the straight stack with front extension.

There was evidence in the case from which the appellants were warranted in insisting that Ho. 554, which carried the diamond stack, threw sparks that caused the fire, and that from such stacks more sparks were thrown than from straight stacks. The size of the sparks that may be thrown by either depends upon the size of the mesh of the netting used, but the straight stacks deposit much of the sparks that would escape from the diamond, in a pocket under the stack, from which they áre removed when a large quantity has accumulated. *

The appellees began in 1884 to change the stacks on their locomotives from diamond to straight, and from the evidence the appellants were warranted in insisting that, one of the reasons on the part of appellees for such change was the greater safety of the straight as to throwing sparks. But in 1884 the appellees had more than 500 locomotives; to change the stacks of -all was a work of great labor, requiring a good deal of time; and they had an immense traffic, needing the services of the locomotives, which, without the constant use of nearly all of them, would be seriously interrupted, to the great inconvenience of the public, as well as the appellants. The real question in the case is, whose is the risk as to the difference in the degree of danger between the diamond and the straight, when one of the former class, in good order and properly managed, is used ? Is it run at the risk of the company, or of the adjacent property owner ?

At the instance of the appellees the court gave, among others, the following instructions:

“First. The court instructs the jury that the plaintiff charges in its declaration in this action, that the defendant was operating and using a certain railroad, extending along and adjacent to the property of the plaintiff, and that while a certain locomotive engine of the defendant, and under its control, was passing said property of the plaintiff, divers sparks and brands of fire then and there escaped, and were thrown, by and through the carelessness and negligence of the defendant, upon the property of the plaintiff, and that by reason thereof said property was wholly burned and destroyed. The defendant for answer to said declaration denies that it was guilty of carelessness or negligence, and denies that said property was burned or lost to the plaintiff through the negligence or carelessness of the defendant.

And the court instructs the jury, that under the issues in this case the plaintiff must, sustain its claim that the fire in question was communicated by an engine of defendant, by a preponderance of the evidence. And you must also, under the evidence and instructions of the court, find that the defendant was guilty of carelessness or negligence in the construction or management of said engine, as defined in their instructions, or else you should find the defendant not guilty.

Second. The court further instructs the jury that the law requires of the defendant in the construction of its engines to exercise reasonable care to prevent the escape of sparks and fire, both from the smoke stack and ash pan of the engine, and for that purpose to use good and safe netting or spark arresters, such as are either most in use, or such as have been approved bv experienced railroad operators and mechanics, at and before the time of said fire, and also that such spark arresters must be good and safe, and such as are approved by experience. And if the jury believe from the evidence that at the time of the alleged fire the defendant was using upon its road, passing near the plaintiff’s property, engines equipped with spark arresters that had been adopted and generally used by railroad companies, and such as have been shown by experience to be reasonably safe, for the purpose of preventing injuries by fire to the plaintiff’s property, and at the same time of such burning, or immediately preceding the same, all the engines of the defendant, charged with emitting fire, were properly equipped with proper spark arresters, and in good order, and were handled and operated in a prudent manner, so far as the same could be handled, for the prevention of the escape of fire, then the court charges the jury that the defendant has discharged its duty to the plaintiff, as required by law, and is not liable for the damages sustained by said plaintiff.

Third. The court further instructs the jury, that if you believe from the evidence that the locomotive engines of the defendant, run upon its road along and in close proximity to the plaintiff’s property, were coal-burning engines, and were equipped with proper appliances to prevent the escape of fire, such as suitable and proper netting, cones, ash pans and dampers, and that in the construction of the smoke stacks of the defendant’s locomotives the netting, or spark arresters, and other appliances to prevent the escape of fire, were of the kind or character that had been generally used upon railroads, upon coal-burning locomotives, and"were extensively used at the time of the burning, and that in the construction, use and operation of said locomotives the defendant had exercised reasonable and proper care and diligence, then the court instructs you that the defendant would not be liable for the burning of the plaintiff’s property, but that under the law such burning would be attributable to accident, for which there can be no. recovery.”

To these instructions the appellants excepted.

An instruction must be construed with reference to the facts in evidence before the jury. Chi. W. D. Ry. v. Mills, 105 Ill. 63.

It was proved conclusively by witnesses for both parties, that the construction of the straight stack was such that it caught and retained in the pocket a very large portion of the sparks that would escape or be thrown out from the diamond; indeed, from some of the testimony it might be argued that the difference would be as much as two bushels in every five miles of run.

If the jury had found for the appellees on the question of fact whether the fire was caused by a locomotive of the appellees, their verdict would probably have been conclusive; but although that question is left to the jury by these instructions it is quite probable that their verdict was based -upon their view of the compliance by the appellees with the law as to their duty laid down in the second and third instructions. With the evidence before them as to the superiority of the straight stack, they could not have found that the appellees had discharged their duty “to exercise reasonable care to prevent the escape of sparks and fire,” “and that in the construction, use and operation of said locomotives the defendant had exercised reasonable and proper care and diligence” except upon the theory that the special circumstances affecting the appellees, the great number of their locomotives, the time and expense required to change all stacks, and the inconvenience by the interruption of business while making such change, excused the appellees in not having upon their locomotives the safest stack.

This theory makes the law for one railroad one thing, and for another, another. The law is not so flexible. It has one measure for all litigants. Palm v. O. & M. R. R., 18 Ill. 217.

Whatever the mileage of a road, the number of its locomotives, or the magnitude of its traffic, if it burns up the property of an adjacent proprietor by sparks escaping from the stack of one of those locomotives, the road must show, as part of its justification or excuse, that it did “ use every possible precaution, by the use of all the best and most approved mechanical inventions, to prevent loss from fire along the line of its road.” C. & A. R. R. v. Pennell, 94 Ill. 448; T., W. & W. Ry. v. Corn, 71 Ill. 493, and many earlier cases.

This rule would be, in a case presenting that feature, qualified, no doubt, as stated in C. & A. R. R. v. Hunt, 24 Ill. App. 644. If it were shown that the means adopted in the particular case to prevent the escape of sparks, were used only by one road, but that in fact they were more effectual than those “ most approved,” it would be absurd to say that the road was negligent in using them. But it being shown that neither the best nor most approved were used, the loser of the burned property is not to be turned away by any excuse for the omission. If the road exposes the adjacent proprietor to peril from fire, which it might have avoided, it makes that peril its own. »

It may not, because of the exigencies of its own business, inflict avoidable loss upon the owners of adjacent property. These instructions were erroneous in that they leave to the jury to find that the appellees had performed their duty by using means to prevent the escape of sparks not so good as the “ best and (or) most approved.”

If locomotive Ho. 554 set the fire, the appellees show no excuse.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Gary, P. J.

text:
    William McCoy v. City of Chicago et al.

      Municipal Corporations—Notices—Publication of—Injunction—Foreign Language—Constitution■—Jurisdiction.

    1. Questions involving the construction of the constitution without involving the validity of a statute, are within the concurrent jurisdiction of the Supreme and Appellate Courts.
    2. Upon a bill filed by a taxpayer of the city of Chicago to enjoin it from entering into any contract for, or the paying o£ any money for publishing in the German language matters and things required by law or ordinance to be published in a newsp iper, this court holds that under the State constitution, such publications must be in the English language alone.
    [Opinion filed October 28, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Francis Adams, for appellant.
    The publications in question are prohibited by the constitution. Section 18 of the schedule to the constitution is as follows: “ All laws of the State of Illinois, and all official writings, and the executive, legislative and judicial proceedings shall be conducted, preserved and published in no other than the English language.”

      Matters, the publication of which is authorized or required by the city charter, are within the constitutional prohibition, as will be evident from examination of the charter. It is alleged in the bill and admitted in the answers that the city' of Chicago, in May, 1875, became organized under “An act to provide for the incorporation of cities and villages,” approved April 18, 1872. The following matters are required by that act to be published in a newspaper : All ordinances imposing any fine, penalty, imprisonment or forfeiture, or making any appropriation. Starr & C. Ill. Stat., 474, par. 65. The city treasurer’s annual report to the city council. Ib. 482 par. 98. The city collector’s annual report. Ib. 483, par. 102. Notices of application for the confirmation of special assessments. Ib. 496, par. 143. City collector’s- notices of special assessment warrants in his hands. Ib. 500, par. 153.
    Ordinances are clearly within the prohibition of the constitution. When passed in pursuance of authority conferred by the Legislature they are local laws, and are to be regarded as if passed directly by the State Legislature. Dillon on Mun. Corp., 3d Ed., Sec. 308, and note 1; Mason v. Shawneetown, 77 Ill. 533, 537.
    If not strictly “ Jaws of the State,” they are laws passed by the authority of the State, and are within the spirit of the inhibition. It is as necessary that inhabitants of the State, ignorant of the English language, shall have knowledge of the general laws of the State as of merely local laws, and it would be inconsistent, if not absurd, to interpret the constitutional provision as prohibiting the publication of the former in any other than the English language, and not of the latter.
    An ordinance is not only a local law, but it is a “ legislative proceeding,” and as such, within the words of the prohibition. The reports of the city treasurer and city collector are “official writings,” as are also the city collector’s notices of warrants in his hands for collection.
    Notices of application for the confirmation of special assessments are required to be given by the commissioners, appointed by the court to make the assessment. The com, missioners are officers of the court, and the notices are given in the course of “judicial proceedings,” and are the process which gives the court jurisdiction to act in the premises. The publication of such a notice is, in contemplation of law, constructive service on the owners of the lots assessed. Murphy v. People, 120 Ill. 234, 236; Murphy v. Peoria, 119 Ill. 509, 513, 514.
    The matters, therefore, required to he published by the city charter, are such that they can not, in view of the constitutional inhibition cited, be published by the city, at the expense of the taxpayers, in any other than the English language.
    But the opposing counsel contends that the constitutional prohibition does not apply to the publications in question, and that the charter of the city authorizes such publications. It is therefore necessary to consider the charter provisions relied on.
    Mr. A. F. Stevenson, for appellees.
    The publishing of council proceedings, notices, etc., in newspapers printed in the German language is not a new thing in this country; it is done in all large cities where there is a large number of German-American citizens, and so cheerfully has this kind of publication been acceded to by the English-speaking population that only two cases can he found in which this matter has been brought before the courts. They are found in Watson v. City of Cincinnati, 2 Cincinnati Sup. Ct., p. 84, and in Kellogg v. City of Oshkosh, 14 Wis. 632, in both of which cases the courts passed favorably upon the power of the common council to publish 'in newspapers printed in the German language.
    It may also be urged that it has been the custom in this city and other places, for over thirty years, to publish these proceedings, notices, etc., in a newspaper printed in the Gorman language; and if the Legislature had deemed it a wrong to taxpayers they could have passed laws long ago prohibiting such publication. But, on the contrary, the Legislature has passed acts from time to time indorsing such publication.

      Dillon on Municipal Corporations, 3d Ed., Sec. 87, says: “ It is a principle of very extensive operation that statutes of a general nature do not repeal, by implication, charters and special acts passed for the benefit of particular municipalities, but they do so when this appears to have been the purpose of the Legislature.”
    The same authority, in the latter part of Sec. 93, says: ' But general and long continued usage is not without its importance, and usage of this character may be resorted to in aid of a proper construction of the charter or statute, but no further. If the language be uncertain or doubtful, a uniform, long-established and unquestioned usage will be regarded by the courts in determining the mode in which powers may be exercised, and to a reasonable degree in determining the scope of the powers themselves,” * * * to which appears the following foot-note:
    “ When the true construction of a charter admits of doubt, and the construction adopted by the city authorities has been acquiesced in generally and acted upon by third persons in good faith in tlieir transactions with the city, it will be precluded by the courts, in actions by such third parties, from denying its construction to be the true one.” Van Hostrup v. Madison City, 1 Wall. 291.
   Gary, P. J.

This is a bill filed by a taxpayer of the city of Chicago to enjoin it from making any contract with the German-American Publishing Company, one of the appellees, for, or paying any money of the city to that company for publishing in the German language those matters and things required by law, or any ordinance of the city to be published in a newspaper.

The only question in the case is, whether the city has a right to expend the money of the city for that purpose. If it has no right to so expend the money, the right of the appellant to an injunction is beyond dispute. Wright v. Bishop, 88 Ill. 302, and many cases there cited.

In 1875 the eity^ was incorporated under the act of 1872, provided for the incorporation of cities and villages. Before such corporation Sec. 15, Chap. 3, of the Charter of 1863, contained a provision that the common council might in its discretion provide for such publication. By an act of March 9, 1867, it was provided that the proceedings, notices and ordinances of the city and the departments, shall be published in the newspaper, printed in the German language, having the largest daily circulation in said city,” etc. This act effectually repealed, by repugnancy, the former provision of the charter, by taking from the city all discretion as to such publication, either as to publishing at all, or in what paper. Then came the act of March 10, 1869, which required the common council biennially, on the second Monday in December, or as soon thereafter as might be, beginning in 1869, to designate the German newspaper for publication, etc. The only effect this act had upon the imperative provisions of the act of 1867, was to fix the time when the common council should ’designate the paper in which the publication should be made. ¡None of these provisions are in form or substance, in whole or in part, incorporated in the general act of 1872. In various sections of that act, publication of ordinances, notices, etc., in a “newspaper” is required,but with no mention of the language in which that newspaper shall be printed. It is not a pertinent inquiry in this case, whether the general act of 1872 repeals the charter provision of 1863, as was held to be the case as to other special provisions in Law v. People, 87 Ill. 385, and Cairo v. Bross, 9 Ill. App. 406. It is too clear for argument that that provision, making this act discretionary, is superseded, and therefore repealed by the subsequent legislation, making the same act compulsory, and prescribing the manner and time of doing.it, with restrictions added. From 1869 to 1875 the city could not have justified such publication, without complying with the acts of 1867 and 1869, by referring to the charter of 1863 as their authority, and the repeal of those acts did not revive the charter provision. The appellee’s counsel concedes that the legislation of 1867 is inconsistent with the general law of 1872, and that concession carries the act of 1869 also.

The counsel, however, insists, that even if the charter provision of 1863 is not in force, yet, without any express power to be found in any legislation, the city has the discretion, because of the benefit, to publish in German, from the general powers conferred upon the common council by Sec. 63, Art. 5 of the act of 1872, and specially by clauses 91 and 96 of that section. Whatever might otherwise be the force of that argument it is met and overcome by the 18th section of the schedule of the constitution, that all laws of the State of Illinois, and all official writings, and the executive, legislative and judicial proceedings, shall be conducted, preserved and published in no other than the English language.”

It is true that this section would be an objection to the validity of the charter provision of 1863, if that had not been repealed by the acts of 1867 and 1869; and if there had been no such repeal, and if it was not repealed by the act of 1872, this court would have, under the law conferring jurisdiction, no power to decide the question; but the views already stated leave no such question in the case. Questions involving the construction of the constitution, without involving the validity of a statute, are within the concurrent jurisdiction of the Supreme Court, and of this court; of the Supreme Court by Sec. 88 of the Practice Act of 1872, and of this court by Sec. 8, as amended in 1887, of the Appellate Court Act of 1877. This section of the constitution has no reference to individual conduct. It is no restraint upon private enterprise.

The publisher of a newspaper in any language may translate and publish as much as he pleases of the laws, official writings, and executive, legislative and judicial proceedings in this State, without offense. But it is a restraint upon official conduct, and as stringent upon publishing as it is upon conducting and preserving such laws, etc. If the city may publish at public expense in German, why may it not pass ordinances and conduct its business in Greek?

This constitutional provision is the only express law on the subject; yet, if even the directors of a school district should attempt to keep their records in a foreign language, it would seem absurd to everybody. Official,” as an adjective, is derived from “ office,” as a substantive, and by the constitution, Sec. 24, Art. 5, an office is a public position, created by the constitution or laws, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.” Every officer of the city is within that definition. Wilcox v. People, 90 Ill. 186.

Their acts as officers are official; the record of their acts as officers are “ official writings,” to be “ preserved and published in no other than the English language.”

The constitution of 1848 contained the same prohibition, and though the question might have been made long ago, it never has been; but no provision of the constitution becomes obsolete by neglect.

The decree of the Circuit Court dismissing the bill is reversed and the cause remanded, with directions to perpetually enjoin the city, as prayed in the bill, and that the appellant recover his costs. The costs both here and in the Circuit Court are to be paid by the German-American Publishing Company.

Jdeversed and remanded.


author: Moran, J.

text:
    John B. Geary v. Paul Bangs.

      Mechanic's Lien—Building Contract—Terms of—Payments—Action to Recover—Abandonment.

      1. The mere fact that money which, according to the contract, is to be paid as fast as a given work progresses, is not paid by the owner, when, by the terms of the contract it ought to be, will not authorize the abandonment of the work and the recovery of a mechanic’s lien for the work performed by the contractor, unless the payments are made conditions precedent to the performance of the work, by the express and positive provisions of the contract.
    2. In order to obtain a lien the contractor must show that he has performed his contract or that he has been prevented from so doing by the act of the other party.
    3. The failure to pay an installment when due is not such an act or omission as will prevent the contractor from completing his contract.

      [Opinion filed October 28, 1889.]
    In error to the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    This was a petition for a mechanic’s lien, filed by defendant in error to recover for certain work performed under the following contract:
    “This agreement, made this 12th day of June, A. D. 18S8, between John B. Geary, party of the first part, and Paul Bangs, party of the second part, witnessetli:
    For the consideration hereinafter mentioned, the said second party agrees to do all the carpenter work and furnish all the lumber and mill work necessary on the building, also the roof, cornice and gutters on said building, to be erected by said first party on 44th street near Vincennes avenue, Hyde Park, in accordance with the plans and specifications made by W. J. Eiler, architect, which are hereby made part of this contract; said work to be completed within sixty days from the date hereof. The said first party hereby agrees to pay to the said second party, for the work hereinbefore mentioned, the sum of twelve hundred and forty dollars; said sum is to be paid as the work progresses, as follows, to wit: Four hundred dollars to be paid when said building shall be under roof, and four hundred dollars to be paid when said building shall be ready for plastering, and the remaining four hundred and forty dollars to be paid when said building shall be finished.”
    Signed by the parties.
    The petition alleged that Bangs commenced the work and so performed his part of the contract; that the building was ready for plastering on July 27, 1888; that Geary paid on said building $400 when the roof was completed ; that when the building was ready for plastering petitioner was entitled to receive $400 more, but that said Geary paid, and would pay, only the sum of $200, whereby petitioner was prevented from completing said contract. States petitioner had fully performed, up to the time of refusal of Geary, to pay additional $200. Prays for a lien for the value of work done on the building, which remained unpaid for.

      There was an answer to the petition, and on the hearing the court decreed a ’lien in favor of petitioner for the amount claimed, and said Geary brings the record to this court on error.
    Messrs. W. S. Heeferan and John R. Gearey, for plaintiff in error.
    Mr. Lyman M. Paine, for defendant in error.
   Moran, J.

It appears from the evidence introduced at the hearing that a dispute arose between Bangs and Geary as to whether the building was ready for plastering at the time Bangs demanded the second payment of $400. Geary paid’ $200, and insisted that there was other work necessary to be done to get the building ready for plastering, and refused to pay the other $200 until said work was done.

Bangs stopped work and Geary requested him to go on and complete his contract, and served a notice on him, requiring him to do so, but Bangs declined to go on because Geary would not pay the additional $200 which he claimed to be then due, and abandoned the work, and Geary proceeded to complete the building by other workmen.

Granting that Bangs was right in his claim that the building was ready for plastering, and that the $400 was due him, still, under the contract between the parties, he would not be entitled to a lien if he abandoned the contract on Geary’s failure to pay it; whatever view may have been taken elsewhere, it is the rule in this State that the mere fact that money which is to be paid as fast as the work progresses, is not paid by the owner when, by the terms of the contract, it ought to be, will not authorize the abandonment of the work and the recovery of a mechanic’s lien for the work performed by the contractor unless the payments are made conditions precedent to the performance of the work by the express and positive provisions of the contract. King v. Sherman, 28 Ill. 520; Palm v. Ohio & Mississippi R. R. Co., 18 Ill. 217. The failure to pay an installment when due is not such an act or omission as will prevent the other party from completing the contract. In order to obtain a lien the contractor must show that he has performed his contract, or that he has been prevented from so doing by the act of the other party. Defendant showed by his petition, as well as by the evidence introduced at the hearing, that he had abandoned his contract and refused to complete, and he has not shown what amounts in law to an act of prevention by the other party to it.

The court erred in decreeing the lien, and the decree must be reversed and the cause remanded with directions to dismiss the petition at the costs of defendant in error.

Heversed and remanded.


author: Gaby, P. J.

text:
    Howard F. Smith v. Moses A. Hawkes et al.

      Contracts—Mines—Development of—Stock—■Rescission and Return of— Consideration—Pleading—Parties.

    Upon a bill filed to procure a rescission of, and likewise a return of certain mining stock delivered in pursuance of a contract entered into for the purpose of developing a mine, it being contended by the complainant among other things that one of the two joint promisors therein had failed to prosecute such development, this court holds that both should have been made parties defendant to such bill; that the one not named does not become a party by being called as a witness in behalf of the complainant; that said contract can not be made several by averments in the bill, or by evidence of conversations between the parties, and declines to interfere with a decree dismissing the same.
    [Opinion filed October 28, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. George W. Wilbur, for appellant.
    The decree should be reversed because the appellant had a right to rescind. Wilson v. Roots, 119 Ill. 379-386, etc. Bannister v. Read, 1 Gill. 92-99, and cases there cited; Shelby v. Hutchinson, 4 Gill. 319; County of Clinton v. Ramsey, 20 Ill. App. 577; Thomas v. Coultas, 76 Ill. 493 (498); Cravener v. Hale, 27 Ill. App. 275; Shaffner v. Killian, 7 Ill. App. 620.
    Appellant, having a right to rescind, had also a right to decree for re-transfer of the stock. Bispham’s Eq. (4th Ed.), pg. 432-434; Doloret v. Rothchild, 1 Sim. & Stu. 590; Pooley v. Budd, 14 Beav. 34; 3 Pomeroy’s Eq., 440-1, and notes.
    Messrs. Cook & Upton, for appellees.
    There is no force in the excuse offered for leaving out Taylor, a joint obligor with the appellee, Hawkes.
    As to Smith, the appellant, the undertaking of Hawkes and Taylor was a joint one, and it is simply absurd to insist, as appellant does, that Taylor has fully performed his half, and that Hawkes has done nothing in that direction.
    The fact that Taylor and Hawkes, as between themselves, may have agreed that they would share equally in the undertaking, does not concern the appellant in the least, and all evidence offered by him tending to establish such an agreement between them, is wholly irrelevant to the issues.
    Such an agreement would give Taylor the right to call on Hawkes for contribution, in case he had, as is claimed, done more toward the- performance of the contract than Hawkes had, and the very fact that Taylor would have such a right, is a strong reason, it seems to us, why he should have been made a party defendant to the bill.
    If, as is claimed, each was to perform one-half (or in any other proportion, as to that matter), and Taylor had done more than his half or his proportion, whatever it might be, and Hawkes had done less, would such a decree as is sought by appellant’s bill in this case be a bar to a suit by Taylor against Hawkes, for contribution, Taylor not being a party to or bound by said decree? If not, that fact forcibly illustrates the necessity of making Taylor a party.
    That Taylor was a necessary party, see Story’s Equity Pleadings, Sec. 169; Bland v. Winter, 1 Simons & Stuart, 247.
   Gaby, P. J.

The appellant filed his bill against the apjDellee Hawkes only, but by a supplemental bill brought in as a defendant one Alley, of whom no further notice need be taken. The object of the bill was to procure a rescission of one-half of, and the return of one-lialf of the stock delivered in pursuance of a contract as follows:

“ Memoranda of agreement made this 21st day of July, A. D. 1886, between M. A. Hawkes and J. Y. Taylor, both of Evanston, Cook County, Illinois, as parties of the first part, and Howard E. Smith, of Denver, Arapahoe County, State of Colorado, as party of the second part, witnesseth:

“That for and in consideration of the transfer to said parties of the first part of twenty-five thousand and sixty shares of the capital stock of the Ituby Chief Mining and Milling Co., or causing the transfer to said first parties of such amount of stock in said company, the parties of the first part agree to make no demand on said party of the second part for any indebtedness, present or to come, nor upon the remaining shares of the capital stock standing, after such transfer, in his name on the books of the company, and they agree to prosecute the development of the property of said company at their own risk, for a reasonable time, as they shall consider best for their mutual interests, till satisfied of the futility of further endeavors to make the property yield revenues, without large expenditures. Incase the property becomes profitable the parties of the first part agree to pay to said party of the second part, his heirs or assigns, one-eighth of any such profits to the amount of twenty thousand dollars ($20,000), but only after the quarter of such profits shall have paid them the sum of forty thousand dollars ($40,000).
“Also in cáse they sell any of the stock that shall then stand in either of their respective names, they shall consider themselves to have parted with a proportional amount of the twenty-five thousand and sixty (25,060) shares above named, as that stock shall be to the whole number of shares standing in their respective names, and on and after the sale of such proportion of stock shall have netted them the sum of forty thousand dollars ($40,000), then they will pay said second party the one-half received from the sale of this above-said quarter of the capital stock, till such receipts have been paid to him to the amount of twenty thousand dollars ($20,000), and no longer.
“It is further mutually agreed and understood between the parties of the first and second part that the said Hawkes and Taylor shall be allowed to use their best judgment and abilities in carrying out all the conditions of this contract.
“ In witness whereof, we have hereunto set our hands and seals this 28th day of July, A. D. 1886.
“M. A. Hawkes,
“ J. Y. Taylob,
“ Howabd F. Smith.”

To such a bill Taylor is a necessary party. Acts in performance of the contract done by either Taylor or Hawkes, were, as to the appellant, done by both. The contract on the face of it, is joint as to them and can not be made several by averments in the bill, or by evidence of conversations between the parties—at least, in a suit to which Taylor is not a party. Ho decree in this suit will be a bar to any relief Taylor may claim against Hawkes, nor any evidence of facts inconsistent with such claim. The rule which makes Taylor a necessary party, and the reason for it, are stated in 1 Dan. Ch. 190; Story, Eq. Pl., Sec. 72. Taylor does not become a party by being called as a witness on behalf of' the appellant. If he seeks any relief against Hawkes, he must put himself on record as complainant. The ground upon which a rescission as to Hawkes, and a return of half the stock is claimed, is, that Hawkes has failed “to prosecute the development of the property of the company,” as the contract provided, and has attempted to obtain an unjust judgment against the company.

The contract left to the discretion of Taylor and Hawkes as their own interests might indicate, the extent to which they would so prosecute.” That promised prosecution was not the sole consideration on their part. The appellant and such stock as he retained were discharged from some indebtedness. Doubtless the successful working of the mines was a condition precedent to such a state of affairs as would ever entitle the appellant to the contingent profits or proceeds of sales of stock contemplated by the contract; hut Taylor and Hawkes as to such working were left to the exercise of their own judgment. The contract assumes that desire and hope of gain for themselves would be a sufficient incentive to any prudent expenditure. The decree dismissing the hill is right and is affirmed.

Decree affirmed.


author: Cart, P. •!.

text:
    Alexander J. Alexander v. C. E. Mandeville.

      Master and Servant—Negligence of Servant—Personal Injury to Third Person—Master'sLiability—Practice—Independent Contractor—Evidence —Instructions.

    1. The admission of incompetent evidence not made the subject of exception, can not be assigned as error.
    2. The rule touching the non-liability of a master for the negligence of an independent contractor in his employ, is not affected by the fact that the contractor is paid the coat of the work and a given per cent instead of a fixed price.
    3. If it appears in evidence in an action brought for the recovery of damages for an injury alleged to have been occasioned through the negligence of servants of the defendant, that several sets of men were engaged upon the premises in question when the accident occurred, and it is left to the jury to infer the cause of the injury, the fact being that for one set of the men the defendant was in no wise answerable, he is entitled to an instruction setting forth such fact.
    4. It is proper for a trial court to give one connected charge in lieu of separate instructions asked by the parties, provided that such charge embraces all that the parties ask to which they are entitled.
    5. An instruction of this character, which directs the attention of the jury away from the issue one of the parties has a right to present, is erroneous.
    6. In such case, a contractor should narrate what happened in the making of his contract, and the conduct of the work, from which the jury must infer whether he acted independently of his employer or not.

      7. Itispropertorefn.se to allow a party to examine at length, as his own witness, a person whom his adversary has called and examined as to the same matter, and whom the first party had an opportunity to cross-examine as to every circumstance. Additions to and explanations or qualifications of the testimony in chief, when part of the same transaction, should be brought out by cross-examination.
    [Opinion filed Oct. 28, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Johu P. Altgeld, Judge, presiding.
    Messrs. Osbobue Brothers & Burgett, for appellant.
    In Glickauf v. Maurer, 75 Ill. 289, the question of “ independent contractor” did not arise. The tenant of first story was entitled to have above him protection from storms. “It would he a strange doctrine, indeed, to hold that appellants could lease the first story of a building to appellee and receive the rent, and then employ a carpenter (under any sort of contract) to remove the roof, in consequence of which a valuable stock of goods should be destroyed, and then take refuge behind the men they had caused to do an act from which the damage resulted.” (p. 291.) It was immaterial who was in possession of the upper stories. The landlord was under a duty to his tenant that he could not escape by any kind of contract with the men employed to put on the new roof.
    In Schwartz v. Gilmore, 45 Ill. 455, the court used language (not called for by the case) which has been strongly criticised, and which is not law in Illinois nor elsewhere. See 2 Thompson on Negligence (4th Ed.), 913, 914. The facts involved in Daegling v. Gilmore, 49 Ill. 248, were the same as in Schwartz v. Gilmore, 45 Ill. 455. And if these two cases are carefully read, it will be seen that, in Schwartz v. Gilmore, the plans of the building were defective, and that the accident occurred by reason of defect in the plans rather than by the manner of doing the work. See 2 Thompson on Negligence, 900. Where plans are defective the owner will be liable for injury in consequence of the falling of the building, whether the actual construction of the building is done by an independent contractor or not. Hollenbeck v. Winnebago Co., 95 Ill. 148, 156-8 ; City of Joliet v. Harwood, 86 Ill. 110. In Railroad Co. v. Hanning, 15 Ill. 649, the contractor agreed “to build it (the wharf) with such mooring posts, cluster-piles, etc., as the company, through their engineer, may require, making the old wharf as good as new; * * * to submit to the supervision and direction of the engineer of the company, and to do the work to his satisfaction.” Judge Hunt says: “They (company) may direct the number of mooring posts, cluster-piles, etc. * * * They are at liberty to direct how much material shall be used, and how it shall be laid to make the old wharf as good as new. They are to supervise the work to be done. They are to direct how it shall be done.”
    There is a doctrine peculiar to Massachusetts, and in looking at the decisions of its courts, that fact must be borne in mind. Such doctrine is this: It is there held that a builder isa mere servant, and not an “independent contractor,” unless he agrees to do the work for a specific and fixed sum of money named beforehand. Forsyth v. Hooper, 11 Allen, 419; Brackett v. Lubke, 4 Allen, 138 ; Conners v. Hennessy, 112 Mass. 96.
    In Linnehan v. Bollins, 137 Mass. 123, Elston was employed “to take down the entire building * * * or so much thereof as the trustees (defendants) may request. * * * All of said work to be done * * * under the direction and subject to approval of said trustees.” The jury were instructed: “This contract gives the defendants the right to control and direct the action of Elston. It is not simply a provision that the work must finally meet with their approval before they pay him, but it is a provision that in the first instance he is to take down just so much of it as they desire, and that he is to do the work of taking down under their direction. There is no other mode of construing it than so as to mean that he, by-his contract, was subject to their order as to the time and manner and mode of doing the work, and that they had a right to step in and say to him, ‘ You are not doing this as we directed you to do it. We direct you to do thus and so, and we direct you to do this in the other way.’” . On appeal the exceptions to the charge to the jury were overruled.
    Whether an owner of a building retains control over work to be done, and the manner of doing it, so as to render himself liable for injuries occasioned by the negligence of a contractor and his employes in the performance of the work—that is, whether the contractor is an “ independent contractor ”— depends upon the construction to be given to the contract by the court. Linnehan v. Rollins, 137 Mass. 123, 125-6, and cases cited.
    In Clapp v. Kemp, 122 Mass. 481, the jury were simply told that, if the defendants “had the right to direct or control the mode or manner of such delivery (of the coal into the cellar), then the teamster would be the servant of the defendants.”
    In Stone v. Codman, 15 Pick. 297, “ it appeared that the defendant employed one Lincoln, a mason, to dig and lay a drain from the defendant’s stores * * * into the common sewer; and that by reason of the opening made by Lincoln and the laborers in his employment, water was let into plaintiff’s cellar, and his goods were wet.” (p. 297.)
    In Hilliard v. Richardson, 3 Gray, 349, 351, the court says that in Stone v. Codman, “ There was no contract, written or oral, by which the work was to be done for a specific price or as a job. The case is expressly put upon the ground that between the defendant and Lincoln the relation of master and servant existed. * * * The work was under the control of the defendant. He could change, suspend or terminate it at his pleasure (and without liability to Lincoln). * * * The work was done by Lincoln, not on his own account, but on the defendant’s. The defendant was, indeed, acting throughout by his servants.” (pp. 351-2.)
    In Brackett v. Lubke, 4 Allen, 138, a carpenter was employed to repair an awning. “At the trial * * * it appeared that * * * the defendants, being desirous of having one end of it (the awning frame) moved along six or eight inches, * * * engaged a carpenter to do the work, and, having told him what they wished to be done, gave him no further directions.” The court said: “The defendants are liable because it appears that the negligent act which caused the injury was done by a person who sustained toward them the relation of servant. There was no contract to do a certain specific job or piece of work in a particular way for a stipulated sum. It is the ordinary case where a person was employed to perform a service for a reasonable compensation. The defendants retained the power of controlling the work. They might have directed both the time and manner of doing it.” See Shearman & Red. on Neg., 54th Ed. Sec. 165.
    In Bernauer v. Hartman Steel Co., 33 Ill. App. 491, this court said: “The terms of the employment of Bull are not given, and it must, therefore, be assumed that no special terms were agreed on. He was employed generally to do the required work. * * * His employer had the right to control and direct the entire work, and might have discharged Bull from the employment if he refused to obey her instructions. The character of his employment bears no resemblance to that of an independent contractor.”
    The question of the extent of injury and damage to appellee is not to be determined by the appearances directly after his injury, but what were the extent of his injuries as shown during the two years that elapsed between the accident and the trial.
    Messrs. E. H. & K. E. Gary, for appellee.
    “If the employer reserves control or supervision over the mode and instrumentalities for doing the work, as if the work is to be done according to the direction of his architect or according to the directions of the employer himself, or if he in any manner reserves such control over the work, by himself or by his agent, as gives him authority to direct how the work shall be done, during its progress, so that the contractor and his workmen can be said to stand in the relation of servants to him, he is liable for their negligence.” Wood’s Master and Servant, 613.
    “ The fact that the employer reserves the right to change the plan of doing the work, or that the work shall be done to the satisfaction of the emplojmr, or of an agent appointed by him, or that the employer reserves the right to discharge any of the contractor's men, does not affect the question. The simple test is, who has the general control over the work ? Who has the right to direct what shall be done, and how to doit? And if the person employed reserves this power to himself, his relation to the employer is independent and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant. The contract being to do a certain piece of work, the mode of payment does not affect the relation.” Wood’s Master and Servant, 614.
    “ Where a landlord occupying the upper story of a building employed a mechanic to put in a sky-light in the roof, who neglected to cover the same, so that it rained through the opening and thereby damaged the goods of a tenant occupying the first floor, it was held that the landlord was liable to the tenant for the negligence of the mechanic in doing the work. This case is distinguished from Scammon v. City of Chicago, 25 Ill. 424, as there the owner gave the entire possession and control of the premises to the contractor.” Glickauf v. Maurer, 75 Ill. 289.
    Where the employer and owner of property employed a builder to erect a building thereon, who, by the terms of the contract, was to carry forward the work under the control of a superintendent, and “ to remove all improper work or materials upon being directed to do so by the superintendent,” to whose judgment, both as to work and materials, he agreed to submit, and whose acts the owner agreed to recognize, and the owner also reserved the right to change the plan, and the architect was declared to be the superintendent for the owner, held, “ that the owner had not so far given to the contractor all control over the work and the premises as to be relieved himself of all responsibility for the injuries caused by the contractor’s negligence.” Schwartz v. Gilmore, 45 Ill. 455.
    In Linnchan v. Rollins, 137 Mass. 123, a carpenter entered into a written contract with the trustees of an estate, by which he agreed “ to take down the entire building known as the Adams House in said Boston, belonging to said trustees, or so much thereof as the trustees may request,” and which also provided as follows : “ All of said work to be done carefully and under the direction and subject to the approval of said trustees.” There was evidence to show that the plaintiff was injured through the negligence of the workmen employed by the carpenter under the contract. It was held that the trustees wore liable for the injury so received.
    “The defendants, if they were occupants of the store, would not be liable for the negligence or carelessness of the teamster, if, as the servant of Armor, he had the exclusive possession, or control of the premises as far as was necessary to enable him to deliver the coal. But if the jury are satisfied that the defendants were at the time the occupants of the store, and, as such occupants, had the right to direct or control the mode or manner of such delivery, then the teamster would be the servant of the defendants, so as to render them liable for injuries occasioned by his negligence or carelessness in the delivery of the coal.” Clapp v. Kemp, 122 Mass. 481; see Bernauer et.al. v. Hartman Steel Co., 33 Ill. App. 491.
   Cart, P. •!.

The appellant and Mrs. Leiter owned buildings in the city of Chicago, separated by a party wall. They joined in erecting another story upon them, and employed Mr. Baumann as architect. He made plans, and Barney & Bodatz, a firm of masons, contracted with the owners, separately, to do the mason work on the buildings, furnishing their own materials and labor, to be paid therefor the cost, with ten per cent, added. The owners, by their agents, employed their own carpenters, superintended by their own foreman, to do the necessary carpenter work.

Barney & Bodatz had their own foreman on the work, under whose directions their men worked when Bodatz was not present. Barney took no part in the work, only going to it on pay days, to pay the men. The architect, by his plans and verbal instructions, directed what work should be done, and decided upon its sufficiency as done. In the afternoon of April 20, 1886, a mason’s “horse,” used for scaffolding, placed on the roof of appellant’s building by Barney & Bodatz, from a cause not shown by any direct evidence, fell from the roof to the sidewalk in front of the building, striking and injuring the appellee.

He sued both owners and the masons. On the trial the appellee obtained a verdict against the appellant only. It is not now necessary to decide whether the relations between the appellant and the masons were such as to make him responsible for negligence of their workmen, if such negligence was the cause of the accident. If the masons had been contractors for a fixed price, it would be difficult to fix responsibility upon the appellant under all modern authority.

The principle adopted in the old case of Bush v. Steinman, 1 Bos. & Pul. 401, that “he who has work going on for his benefit and on his own premises, must be civilly answerable for the acts of those he employs,” has, in its application to the acts of independent contractors, been rejected, probably, by every court that has mentioned the case in the last half century. And that the contractors are paid cost and a per cent instead of a fixed price, makes no difference. Hale v. Johnson, 80 Ill. 185. There was evidence tending to show that there were upon the roof, when the “ horse ” went over, a carpenter, a laborer of the masons, and some telephone men doing something about wires which had been extended across, but not attached to, the appellant’s building. There was a good deal of incompetent evidence as to the acts and declaration of divers persons after the accident, tending to show, and probably fairly showing, that the general opinion of all persons most nearly connected with the events was that the act of the laborer was the cause of the “horse” falling.

The appellant was a non-resident, not present during the progress of the work, or at the time of, or after the accident He is not to be affected by that opinion, but is entitled to an impartial finding of a jury upon original evidence of the events.

That incompetent evidence, however, is not made the subject of exception by the appellant, and its admission can not be assigned as error. It is alluded to only as indicating that the importance of the instruction asked by the appellant and refused by the court was obscured by the general belief that the laborer was the negligent person. That instruction was as follows: If the jury believe from the evidence that the injury to the plaintiff, complained of here, was caused by the act or negligence of certain man or men in removing or changing the position of certain telephone or telegraph wires, and that such man or men was not, or were not, the agent or agents of the defendant, Alexander, or in his employ or service in doing such work, then the jury should not find a verdict against Alexander, but should find him not guilty.”

The refusal can not be justified on the ground that there was no evidence to base it upon. The telephone men were not witnesses, and the laborer was not examined on the point of what caused the horse to fall. Why it fell is left wholly to inference from circumstances. The laborer was removing scaffolding which was in part supported by the horse.” What the telephone men were doing does not so clearly appear.

The burden of proof was upon the appellee. If the jury were to infer from the presence and employment of different men what act caused the horse ” to fall, and if for the acts of one set of men the appellant was in no event answerable, he was entitled to an instruction covering the point. See Riedle v. Mulhausen, 20 Ill. App. 68, and many cases there cited; especially P. M. & F. Ins. Co. v. Anapow, 45 Ill. 86, and Wooters v. King, 54 Ill. 343.

The court gave no instructions asked by any of the parties. If any other party than the appellant asked any, the record does not show it. But if they did, one connected charge, as was given in this case, in lieu of separate instructions asked by the parties, is good practice, provided that such charge embraces all that the parties ask, to which they are entitled. Hanchett v. Kimbark, 118 Ill. 121. So much of the charges as relates to the present question is as follows:

“ If you find from the evidence that none of the defendants were personally guilty of negligence, but that some of the workmen on the building, while in the scope of their employment, were guilty of negligence, as charged in the declaration, and that such negligence caused the accident, and that such workmen were employes of either of the defendants, then you will determine” from the evidence whether such workmen were the employes or servants of the owners of the buildings or the employes and servants of Barney & Bodatz. This involves the question whether Barney & Bodatz were doing the work on these buildings as independent contractors having sole charge of the mason work, and the sole right to hire and discharge the workmen engaged thereon, or whether they were simply acting as superintendents for the owners, and were themselves simply such employes or servants of the owners. Upon this point you are instructed, as a matter of law, that one who contracts to do a piece of work, and to furnish his own assistants, and to execute the work either entirely according to his own ideas, or in accordance with the plans previously furnished him by the person for whom the work is to be done, and without being subject to the orders of the person for whom the work is done, in respect of the details or manner of doing the work and having the sole right to hire and discharge assistants, such a person is a contractor, and not a servant or an employe.
“ On the other hand, if the person for whom the work is dene has a right to direct the details or manner of doing the work, from time to time, and to say who shall and who shall not work on the job, then the person for whom the work is done must be regarded as the employer, and those doing the work as his employes, and in that case it is immaterial whether the person for whom the work is done actually exercises the right to direct the details or manner of doing the work or not; nor will it in that case make any difference whether he actually interferes in the hiring or discharging of men or not; it is sufficient if he had the right to do it.
“ Therefore, in this case, if you find from the evidence that such workmen or persons causing the accident were not guilty of negligence, or if guilty of negligence that they were not the employes of any of the defendants in this case, then you will find all defendants not guilty. If, however, you find from the evideuce that such workmen were guilty of negligence, that this negligence caused the accident, and that such workmen were the servants or employes of Barney & Rodatz, acting in the line of their employment, then you will find the defendants Alexander and Mrs. Leiter not guilty, and return a verdict of guilty as to Barney & Rodatz.
On the other hand, if you find, from the evidence, that such workmen were guilty of negligence, that such negligence caused the accident, and that such workmen were, at the time of the accident, the employes of the owner or owners of the buildings, acting in the line of their employment—that is, that the owner or owners had the right to direct the manner of doing the work, and to say who should and who should not work on the job, then you will return a verdict of not guilty as to Barney & Rodatz; and, in that case, you will further determine from the evidence whether the defendants, Alexander and Mrs. Leiter, through their agents, were doing the work jointly—that is, in so far as the control of the employes was concerned—and whether such workmen at the time of the accident, were the employes of them both, to the extent of being under their control, and, if you so find, then you will return a verdict of guilty as to both Alexander and Mrs. Leiter.
If, however, you find from the evidence that they were doing the work separately, and that neither had any control over the workmen engaged on the building of the other, and that said workmen were at the time of the accident the employes of Alexander alone, then you will return a verdict of not guilty as to Mrs. Leiter, and a verdict of guilty as to Alexander.”

This charge does not, in terms, assume that it was thelaborer who caused the “horse” to fall, and though,as a legal proposition, as it would be understood by lawyers (Nichols v. Mercer, 44 Ill. 250), a phrase or two in it would cover the point in the refused instruction, it was certainly liable to be misunderstood by the jury. It begins with the idea that “ wmrkmen on the building” caused the accident, and carefully informs the jury how they are to determine -whether those workmen were employed by the owners or the masons, and in no way alludes to the telephone men. By the whole tenor of the charge, the jury would be led to think only of the men employed in making the addition to the building, and of the relations of the several defendants in the suit to those men. It directed their attention away from the issue the appellant had a right to present. Trustees v. McCormick, 41 Ill. 323.

The refused instruction was not objectionable on the score that it was based upon an isolated fact. If that fact were found by the jury it would be a complete defense in itself, not subject to any qualifications by anything else in the case. As the judgment must be reversed for refusing this instruction, without putting the same matter clearly before the jury in any other shape, the evidence has not been reviewed at the length that would be necessary if the decision was based upon it. The same may be said of some other complaints of the appellant.

Rodatz was permitted to testify, over the exception of the appellant, that “ he hired the men to work for Leiter and Alexander;” that he lC had no control of anything.” These were only his conclusions. His testimony should have been confined to a narrative of what happened in the making of his contracts, and the conduct of the work, from which the jury were to draw their conclusions.

Whether the evidence as to the extent of the injury to the appellee justifies the damages for which judgment was rendered is a point not considered.

On the point of practice, that the appellant was not permitted to examine at length, as his own witness, a witness whom the appellee had put upon the stand and examined as to the same matter, and whom the appellant had then the opportunity to cross-examine as to every circumstance, the course adopted by the Superior Court was correct.

Additions to, and explanations or qualifications of, the testimony in chief, when part of the same transaction, are to be brought out by a cross-examination.

The judgment is reversed and the cause remanded.

Reversed cmd remancled.


text:
    Frank W. Ruffner v. John W. Love.

      Sales—Guaranty of Payment by Third Person—Acceptance—Evidence —Instruction.

    1. Where there is a mere proposal by one to guarantee the performance of an undertaking by another if credit be extended to such other, the contract of guaranty is not complete till the credit is extended and notice given of the acceptance of the guaranty.
    2. Such notice need not be given in writing, or be in any particular form, but may be inferred by the jury from facts and circumstances warranting the same.
    3. In' an action brought for the recovery of the price of certain goods alleged to have been sold third persons on the strength of a guaranty given by the defendant, this court holds that on account of the giving of an erroneous and misleading instruction the judgment for the plaintiff can not stand.
    [Opinion filed October 28, 1889.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Gartside & Leffingwell, for plaintiff in error.
    Messrs. Hoyne, Follansbee & O’Connor, for defendant in error.
   Moran, J.

This action was brought to recover against plaintiff in error for goods sold to the firm of Ruffner & Somes, on a guaranty alleged to have been made by plaintiff in error. The entire evidence in the case consisted of the deposition of defendant in error, and certain letters and a statement of accounts attached to said deposition as exhibits. The Ruffner who was a member of the firm of Ruffner & Somes, was a son of the plaintiff in error. Prior to the formation of said firm, plaintiff in error had been, it seems, carrying on a cigar business, and had been dealing with Love, the defendant in error. January 11, 1882, Love had a conversation with plaintiff in error, W. F. Ruffner, at the store of Ruffner & Somes, in Chicago, in which said Ruffner desired Love to sell Ruffner & Somes cigars, and said that if Love would give them a line of $5,000, he would be responsible for the amount, and if they at any time failed to pay any portion of their indebtedness to Love, he would pay it himself, and also said that he was leaving his capital in the concern of Ruffner & Somes. It does not appear that there was any further attention paid by either party to this talk, though from the account it appears that Love commenced to sell goods to Ruffner & Somes on said January 11, 1882, and continued through several months thereafter, till the termination of the dealing between them. It is shown, we think very clearly, that the goods sold by Love to the firm during the months of January, February and March, 1882, were not sold on the credit of F. W. Ruffner, as we find written at the foot of an ordér for a bill of goods sent by Ruffner & Somes to Love, dated April, 1882, the following, bearing date April 8,1882 : “I will be responsible for above order. F. W. Ruffner.”

There was introduced in evidence by. Love to sustain his claim of guaranty, the following :

A letter dated Chicago, April 3, 1882, as follows :

“ John W. Love, Esq.:
“ I shall leave my capital in Ruffner & Somes until further advised; in meantime will be responsible for $4,000 for them from this date.
“ Yours respectfully,
“F. W. Ruffneb.”

A letter from Love to Ruffner & Somes as follows:

“Mew York, June 1, 1882.
“Messes. Ruffneb & Somes, Chicago, Ills.
“ Gentlemen:—I have at hand your order through Mr. Richey, for 5 M ‘Princess’ 1-40 with bands at $65; 5 M ‘Princess’ 1-40 without bands at $62.50, and 5 M ‘ Opera’ at $30, to be shipped at once, and 5 M ‘Princess’ 1-20 at $61, and 5 M ‘Calcutta’ at $51, to be shipped June 10th to 15th. I telegraphed you last evening that I would ship your order and write you fully to-day. I will ship the 5 H‘Princess’ with bands, and 5 H without bands, and 5 H ‘Opera’ this p. m., or to-morrow morning, and others at time specified.
“How gentleman, I am willing to renew my offer to give you a $5,000 line of credit (and go in to stay this time) upon the conditions agreed upon between yourselves and Hr. Richey, which are, as I understand them, as follows: I am to supply you with such brands or grades of goods, ‘Princess,’ ‘ Gibi alter,’ ‘ Calcultta’ and ‘ Opera,’ to the amount of $5,000, on the regular terms of four months’ acceptance, or cash, less 4 per cent, if yon should at any time desire to discount your bills, and Hr. F. W. Ruffner is to give me an agreement in writing that he will be responsible to me for purchases which you may make from me, to the amount of $5,000, and that he will not guarantee or make himself responsible for your indebtedness to any other parties besides myself. Please request Hr. F. W. Ruffner to send me an agreement to that effect, and I will return his previous agreement dated April 3, ’82. You may rest assured that I will try to perform my part well by giving you the very best goods I possibly can.
“Very truly yours,
J. W. Love.”

A further letter from Love to Ruffner & Somes, as follows :

“Hew York, June 12, 1882. “Hessrs. Ruffher & Somes, Chicago.
“ Gentlemen:-—I have not as yet heard anything from Hr. F. W. Ruffner in regard to the guaranty which I desire him to give me, about which 1 wrote you fully on the 1st inst.
“Very respectfully,
“ Jko. W. Love.”

The above was inclosed in a letter from Ruffner & Somes, and returned to Love, with the following written on the same paper underneath what Love had written :

“Chicago, June 20, 1882.
“ Jho. W. Love, Esq.
“Dear Sir:—I have been in the country for some time, and on my return find the above letter. I propose, as I said at first, to be responsible for Ruffner & Somes for four thousand dollars (§±,000) and no more.
“Very resp’v,
“ F. W. Ruffner.”
A letter from Ruffner & Somes was:
“Chicago, June 20, 1882.
“John W. Love, Esq.
“Ro. o, Rivington St., Row York.
“ Dear Sir:—Enclosed we hand you guaranty from F. W. Ruffner, Esq., for §4,000 for our .account. This we could not send you sooner on account of his absence. He has not nor will not guarantee our acc’t with any one else excepting yourself.
We are much in need of the Calcutta ordered, and would thank you to hurry them as much as possible.
Yours truly,
“Ruffner & Somes.”

Ruffner & Somes continued to deal with Love till October 28, 1882, having purchased in all upward of §8,900 dollars worth of goods, and paid on account from time to time, something over §7,300 leaving a balance due Love of §1,508, to recover which this action was brought.

Ro communication, verbal or written, having reference to this account, took place between Love and F. W. Ruffner from the letter of June 20, 1882, till February 20, 1886, when a copy of the account was sent to Ruffner by Love, with a demand for its payment. There was a verdict and judgment for the claim in the Superior Court, and Ruffner has brought the record to this court and assigns several errors.

The question presented is whether the written guaranty signed by F. W. Ruffner, and dated June 20, 1882, became binding upon him without notice to him of its acceptance by Love. That guaranty is in form personal and is so expressed. It was written by Ruffner with the knowledge that Love had requested from him an agreement in writing that he would be responsible to the amount of §5,000, and that he would not make himself responsible for Ruffner & Somes’ indebtedness to any other party. He knew that he had, on April 3d, written a guaranty to the amount of $4,000, and that said guaranty had not been accepted and was not satisfactory to Love, and knowing this, he makes his offer definite and clear in the statement: “I propose, as .1 said at first, to be responsible for Iinffner & Somes, four thousand dollars and no more.” That is as if he had said, “I offered before to guarantee to the extent of four thousand dollars; I now find your letter requesting me to guarantee you to the amount of five thousand dollars, and to agree to guarantee no one else; I will not do so, but propose to you as I did before, to be responsible for the firm for four thousand dollars and no more.” This is very different from what was done in the case of Cooke v. Orne, 37 Ill. 189, cited and relied on by counsel for Love. There the parties who sold the goods wrote to the parties who desired to purchase,proposing to sell the goods on notes of the said purchaser, two of the notes to be indorsed by Cooke; the said purchaser wrote a letter in reply accepting the proposition, and to this letter Cooke added a postscript, also accepting, and stating that he would indorse the notes as proposed. The contract of guaranty arises from an agreement between the guarantor and guarantee. It may be, and often is, founded exclusively on a consideration moving from the guarantee to the principal debtor or person to whom credit is to be extended, but otherwise it is distinct from -the principal contract.

It is essential to the formation of this, as well as of all other contracts, that the minds of the parties shall meet.

Where there is a mere proposal by one to guarantee the performance of the undertaking by another, if credit be extended to such other the contract of guaranty is not complete till the credit is extended and notice given of the acceptance of the guaranty.

The assent of the party to whom the proposal is made must be signified to the party making it in order to constitute a binding promise. Treating Love’s letter of June 1st as a request for a guaranty, the question whether such request was assented to by Buffner was a question of law for the court, to be determined by a construction of the writings of the parties, and the court should have ruled that there was no agreement by Ruffner to guarantee as requested in Love’s letter. The court instead of so ruling, gave the following instruction to the jury:

“You are instructed as a matter of law, that when a person jasking a guaranty writes to the proposed guarantor offering to sell to another on his guaranty, and the guarantor replies that he will so guarantee, the contract is complete, and the vendor need not further inform the guarantor of the sale made thereunder; and if you believe, from the evidence in this case, that the plaintiff therein on or about the first of June, 1882, wrote to the firm of Ruffner & Somes, offering to sell to them upon the guaranty of said defendant, which letter was called to the attention of the said defendant, and that he replied that he would be responsible for them for $4,000, which guaranty was accepted by said vendor, the said contract is thus complete and the vendor need not further notify the guarantor of the sales made thereunder.” This instruction was erroneous and misleading. The first clause of it which states the rule of law supposes facts wholly different from the facts in this case, and if the instruction had gone no further its tendency would be misleading. But the latter clause of the instruction is still more faulty. Love’s offer to sell was in writing, and it was not for the jury to determine whether jt amounted to a general proposition to sell on the guaranty of defendant. Itmisrecites defendant’s reply, and assumes as proved a fact which it was essential for the jury to find under the evidence in the case, to wit, whether defendant’s guaranty of $4,000 was accepted by the vendor.

We are of opinion that Ruffner’s letter of June 20th was a mere overture or proposition to guarantee, and that the question for the jury .to find was whether the proposition was accepted, and whether Ruffner had notice of such acceptance.

That there must he notice to the guarantor of the acceptance of such a guaranty is settled beyond dispute by the authorities. Newman v. Streator Coal Co., 19 Ill. App. 594, and cases there cited; Wells v. Davis, 104 U. S. 159; Davis Sewing Machine Co. v. Richards, 115 U. S. 524; Gardner v. Loyd, 110 Pa. St. 278.

“ The notice need not be proved to have been given in writing or in any particular form, but may be inferred by the jury from facts and circumstances which shall warrant such inference.” Reynolds v. Douglas, 12 Pet. 497; Powell v. Chicago Carpet Co., 22 Ill. App. 409. The judgment must be reversed and the case remanded.

Reversed and remanded.