text:
    Rebecca McGarvey v. Harvey Darnall et al.

      Administration—Properly in Several States—Administrators—Judgment against One of Several—Executor—Heir at Law—Evidence.

    A judgment against an administrator appointed in one State is not evidence of an indebtedness as against an administrator of the same estate appointed in another State, nor as against the executor or heir at law of the same decedent when sued in another State from that in which the judgment was rendered.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Mr. C. A. Keyes, for appellant.
    The judgment of appellant is prima facie evidence against the heirs at law of Amelia Darnall in this proceeding. Rosenthal v. Renick, 44 Ill. 207; Stone v. Wood, 16 Ill. 177; Hopkins v. McClain, 19 Ill. 113; Moline Co. v. Webster, 26 Ill. 231; Sutherland v. Harrison, 86 Ill. 363; Goeppner v. Leitzelmann, 98 Ill. 409.

      Mr. Robert Matheny, for appellees.
   Pleasants, P. J.

This was a petition filed August 21,1883, by Harvey Darnall and Agnes Darnall against appellant and the other heirs of Amelia Darnall, who died on the 18th of February, 1883, intestate, in Henry county, Iowa, where she then resided, for the partition of certain lands in Sangamon county, Illinois, of which she was seized at the time of her death.

Appellant answered and also filed a cross-bill averring that letters of administration were duly granted upon the estate of said Amelia Darnall by the proper court in Henry county, Iowa; that on September 18, 1883, she filed in that court a claim against the estate, and obtained judgment thereon for 82,545 and costs, which judgment, on appeal by the administrator, was affirmed by the Supreme Court of that State, and is in full force and wholly unpaid; that said decedent left no personal property whatever, nor any real estate except the lands described in the petition; and praying that if said lands can not be partitioned and have to be sold, the court decree, the payment, out of the proceeds, of her said judgment with interest and costs.

It was shown that Amelia Darnall left no personal estate in Iowa except 8400 in worthless promissory notes, nor any in Illinois except one bed and one bureau, the value of which does not appear; that letters of administration were granted to the petitioner, Harvey Darnall, by the County Court of said Sangamon County, but not until the 11th of November, 1884; that no claim has been filed in said court nor presented to the administrator here, and that appellant is the only claimant, as creditor, against the said estate.

On final hearing a decree was made dismissing the cross-bill and ordering partition as prayed in the petition.

Counsel have discussed at considerable length the questions of jurisdiction in the Circuit Court over the matter of this c’aim, in this proceeding, and of the application and effect of the statute barring claims not presented within two years after administration granted, except as against assets thereafter discovered.

We have thought it unnecessary to decide these questions, because upon the assumption that the court had jurisdiction and that the claim was not barred we are of opinion that the only evidence offered to prove it was, in this case, incompetent. That was a copy of the record of the judgment against the administrator in Iowa, duly certified under the Act of, Congress ; which was objected to and excluded.

It seems to be settled by the authorities that a judgment against an administrator appointed in one State is not evidence of an indebtedness as against an'administrator of the same estate appointed in another, for the reason that the parties are different and there is no privity between them.

In respect of their appointments, powers, estates, duties and liabilities, they are strangers—as much so as administrators of the estates of different decedents. Judy v. Kelly, 11 Ill. 211; Rosenthal v. Renick, 44 Ill. 202; Stacey v. Thrasher, 6 Howard U. S. 44; McLean v. Meek, 18 Id. 16. For the same reason it is not evidence against the executor or heir at law sued in another State. It can affect no property of the decedent in another State, howsoever or by whomsoever held, either directly or indirectly, as evidence of a claim or cause of action. Low v. Bartlett, 8 Allen, 259.

Decree affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Ohio, Indiana & Western Railway Company v. Eda B. Dooley.

      Railroads—Flowage—Insufficiency of Culverts—Right of Way.

    1. In an action against a railroad company to recover for the overflow of plaintiff’s lands, alleged to be due to insufficient culverts through defendant’s embankment, it is held: That the mere ownership of the right of way by the defendant constituted no defense; that the right to build and operate the road carried with it the duty skillfully to construct; and that for injury caused by faulty construction the remedy is clear and may be applied as often as injury occurs.

      2. In the case presented, this court holds that the admission of evidence as to the increased flow of water from tile drainage, for which defendant was not bound to provide outlet, was not reversible error, the jury having been clearly and correctly instructed, and the special findings showing that they followed the instructions given.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. C. W. Fairbank and Frank Y. Hamilton, for appellant.
    In the condemnation of land for [railway purposes, the assessment made embraces damages of every kind naturally consequent to the use for which the land is taken, unless negligence in the construction is shown. Furniss v. H. R. V. R. R. Co., 5 Sanford (N. Y.), 551; C., R. I. & P. R. R. Co. v. Carey, 90 Ill. 514; City of Chicago v. Rumsey, 87 Ill. 348; Rigney v. City of Chicago, 102 Ill. 64, and cases therein cited; Waterman v. O. & P. R. R. Co., 30 Vt. 610; Perley v. B., C. & M. R. R. Co., 57 N. H. 212.
    There is no liability for not constructing culverts so as to pass extraordinary floods. P., Ft. W. & C. R. R. Co. v. Gilleland, 56 Penn. St. 445; B. & O. R. R. Co. v. Sulp. Sp. School, 96 Penn. St. 65; H. & G. N. R. R. Co. v. Parker, 50 Tex. 330; Ellet v. St. L., K. C. & N. Ry. Co., 76 Mo. 518; Ill. Cent. R. R. Co. v. Bethel, 11 Ill. App. 17, and cases therein cited; Freeland v. Pa. R. R. Co., 66 Pa. St. 91.
    Defendant is not liable for damages without notice of insufficient openings. Union Trust Co. v. Cuppy, 26 Kan. 754; Bonner v. Welborn, 7 Geo. 314; Wayland v. St. L., K. C. & N. Ry. Co., 75 Mo. 548.
    After culvert had been constructed some years without complaint, and an injury having subsequently arisen, it was held that the action would not lie. Colley v. L. & N. W. Ry. Co., 31 Eng. Rep. 691.
    Damages for overflow of land caused by acts of a former company owning a railroad can not be recovered. Wayland v. St. L., K. C. & N. Ry. Co., supra.

      Where an injury is caused to real estate by a cause of a permanent character, the grantee of the owner of the property can not maintain an action for the continuance of the cause of the injury. C. & A. R. R. Co. v. Maher, 91 Ill. 312; T. W. & W. Ry. Co. v. Morgan, 72 Ill. 155; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203; W., St. L. & P. Ry. Co. v. McDougall, 118 Ill. 229, and cases therein cited.
    In Wagner v. L. I. R. R. Co., 2 Hun (N. Y.), 633, it was held that damages could not be recovered for the accumulation of surface water.
    A railroad is not bound to furnish an outlet for tile drains, nor for the excessive amount of water accumulated thereby. Starr & C. Ill. Stats., Chap. 42, Drainage.
    Mr. James S. Ewing, for appellee.
    A railroad company has no right, by any embankment or other artificial means, to obstruct the flow of the surface water and thereby force it in increased quantities upon the lands of another; and if it does so, it is liable for any injury the owner of the land may sustain thereby. 2 Hilliard on Torts, 378 ; Toledo, W. & W. R. Co. v. Morrison, 71 Ill. 616 ; Chicago, R. I. & P. R. Co. v. Moffit, 75 Ill. 524.
    Every continuance of a nuisance is a fresh one. 3 Blackstone’s Com., 220 ; Sedgwick on Measure of Damages, 144 ; 1 Hilliard on Torts, 65.
    Defendant having made use of the grade with its insufficient waterways during the year in question, and having repaired the same, was not entitled to notice of their insufficiency or the injurious consequences. Groff v. Ankenbrandt, 19 Ill. App. 150; McGowan v. Mo. Pacific R. Co., 23 Mo. App. 203.
    It was lawful for plaintiff to drain her land with tile to the points in the natural depressions at the line of the right of way on north side. Starr & C. Ill. Stats., Chap. 42, Secs. 177 and 186.
   Wall, J.

This was an action on the case by appellee against the appellant to recover damages for overflowing the land of appellee.

The first count of the declaration alleged that appellant did not construct and maintain sufficient openings through its embankment to permit the water to flow from the land of appellee, whereby the land was overflowed and rendered unfit for cultivation.

The second count averred the same facts as to the obstruction, with the addition that because of the insufficient openings the water was backed up and discharged with undue violence on that part of the land below the railroad, causing portions of the soil to be washed away, etc.

The plea was not guilty. A trial by jury resulted in a verdict for plaintiff of $50. By their special findings it appeared that the jury disregarded all claims under the second count and therefore the objection that the court refused an instruction with regard to that part of the plaintiff’s demand and that the 7th, 8th and 9th special interrogatories were not submitted to the jury will require no consideration.

No objections are urged to the modification of the defendant’s instructions. It is urged, however, that there was error in those given for plaintiff because they proceed upon the theory that the railroad had constructed and maintained water ways insufficient to carry off the surface water, and it seems to be argued that as it was admitted the railroad company owned the right of way, and had paid for it, therefore all damages growing out of the construction of the road had been included in the condemnation proceedings, and unless there had been changes in the structure causing additional damages the plaintiff could not complain. It did appear the appellant had been operating the road since January 25, 1888, and was the owner of the right of way and had paid therefor, but it did not appear whether this was through condemnation or by purchase nor from whom such right of way was acquired, nor did it appear that appellant had ever paid for the right to overflow the la il of appellee by means of insufficient waterways, or that appellee or her grantors had ever been compensated in any way for prospective damages of that sort.

The mere owning of the right of way would confer no authority to inflict such an injury upon the adjoining land owner without liability, nor would even a recovery in a former suit for damages not now claimed bar this action if the injury-complained of was due to the negligent and improper construction of the road. The right to build and operate the road carries with it the duty to construct skillfully. For injury caused by faulty construction the remedy is clear and may be applied as often as injury occurs. O. & M. Ry. Co. v. Wachter, 123 Ill. 440; C., B. & Q. R. R. Co. v. Schaffer, 26 App. 280; Id., 124 Ill. 112.

This objection to the plaintiff’s instructions is untenable, and the cases cited in the brief in support of it are not in point as we understand them.

It is pressed with some force that the real cause of damage was that the tile drains of the plaintiffs produced an extra flow of water and that the real object of this suit was to hold defendant liable for not furnishing sufficient openings to let off such accumulations, and it is insisted the court erred in permitting evidence in regard to such tile drains.

It would have been quite difficult to place the situation fairly before the jury without more or less reference to the tile—and this came out somewhat in the evidence for defendant as well as for plaintiff—but the jury were very clearly and distinctly instructed that defendant was responsible only for obstructing the natural drainage of the land and was not required to provide any additional facilities on account of the artificial drainage by means of the tile of the plaintiff.

From the special findings it appears the jury were guided by these instructions and placed the damages on the ground of an obstruction to the natural drainage only. We think the objection urged in this regard is also untenable.

As to the chief question of fact and the amount of damages awarded there is no proper occasion for interference.

The evidence, though conflicting, is of such character as to support the verdict.

Perceiving no substantial error in the record we must affirm the judgment.

Judgment affirmed.


author: Conger, J.

text:
    Anton Mayer v. Orpy E. Oldham and John M. Oldham.

      Mortgages—Foreclosure—Duress—Abuse of Criminal Process.

    The arrest and detention of a party charged with a crime, without regard to his guilt or innocence, for the purpose of enforcing the settlement of a claim, without the intention of enforcing the criminal law, is an abuse of criminal process, and against public policy, and the party causing such arrest will not be permitted to enjoy the results obtained thereby.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Clark County ; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. T. J. Golden, for appellant.
    It was ascertained, and Oldham admitted it to be true, and has at no time denied it, that Oldham embezzled about $800 from appellant.
    The appellant had the unquestioned right to the full restoration of the money that had been criminally taken from him. It is not pretended that he sought to recover any more. The thief was bound under every phase of the law to return his ill-gotten plunder and the owner was not restrained to any fastidious forms of etiquette in communicating and dealing with him about it.
    There is not a particle of evidence in the record that an agreement not to prosecute for a felony was the consideration for appellees’ undertaking. The indebtedness to appellant on account of actual money taken was the consideration, and not a cent was added for any other purpose, although it would have been perfectly proper to have made appellees pay the expenses incident to the transaction. Ford v. Cratty, 52 Ill. 313.

      Although the preponderance of the evidence failed to show that threats of imprisonment were made, yet, if made as contended, duress would not be made out.
    “Where a person has committed a crime, a threat to have him arrested and imprisoned being only a threat of lawful arrest, will not constitute duress, in any such sense as will discharge him from liability upon a contract to indemnify the person injured by the commission of the offense.” Compton v. Bunker Hill Bank, 96 Ill. 301.
    “But where the imprisonment is lawful, the party alleging the duress must show it is made to operate upon and influence his mind by constraint, to assent to, and do acts contrary to right and justice. 3 Bacon’s Abridg. title ‘Duress,’ 252-5; 4 Harrington, 311. And this may be done by false, malicious and groundless demand, or charge of crime, for which the party may be arrested and forced to execute the instrument to procure his release, as in the case of Watkins v. Baird, 6 Mass. 506.” Taylor v. Cottrell, 16 Ill. 94; Schommer v. Harwell, 56 Ill. 542.
    Mr. S. S. Whitehead, for appellees.
   Conger, J.

This was a bill to foreclose a mortgage executed by appellee and her husband to appellant. Several defenses were set up by appellees, only one of which it is necessary to notice and that was duress.

Upon the hearing the Circuit Court dismissed the bill and appellant brings the record to this court for review.

The principal facts appearing from the evidence are that the note which the mortgage secured was for the sum of $904.50 and was executed September 20, 1884, at Terre Haute, Indiana, and made payable at a bank in Harsh all, Clark county, Illinois, where the land included in the mortgage was situate. John H. Oldham had been at work for appellant driving a beer wagon and, as claimed by the latter, Oldham, during the months of July and September, 1884, embezzled about $810, and upon failure to pay this money was discharged from appellant’s employment.

In the evening of September 20th, J. D. Early, a police officer of Terre Haute, about half past six o’clock met Oldham on the back stairway of his residence, and told him Mr. Vandever, who was the chief of police of the city, wanted to see him at police headquarters, and Oldham went thither with him. This is the way the circumstance is stated by Early, while Mrs. Oldham says at about eight or nine o’clock Saturday night the policeman came into their home, and took her husband out in the hall, when she followed and asked what was wanted, and that Early replied that he did not know, but that the chief, of police wanted Oldham at police headquarters. \

Shortly afterward Mrs. Oldham went to police headquarters to ascertain what the trouble was, when she learned that her husband was .held upon this charge of embezzlement, and propositions were made by appellant and his attorney, Mr. Hendrich, to settle the matter by Mrs. Oldham giving the note in question and securing it by a mortgage upon her land in Clark county, Illinois; appellant, Mayer, his attorney, Mr. Hendrick, and appellees, Oldham and his wife, then went to the latter’s residence, accompanied by Early, the policeman, who went along as he says by instructions of Vandever, the chief of police, and who says he staid outside the door where he could see what became of Oldham, and remained there on guard until the matter was arranged, and Mayer and Hendrich came out, of the house, when the latter told him that the matter was all straightened up and he could go home, which he did.

As to what took place at Oldham’s house when the note and mortgage was executed, there is in the evidence a direct contradiction, Oldham and his wife testifying that both Mayer and his attorney, Hendrich, said if she did not sign the note and mortgage her husband would be taken to jail, and then sent to the penitentiary, but that if she would sign them, no one except the four present would ever know anything about the charge made against Oldham. That Mrs. Oldham was sick and frightened, and asked time to consider of the matter, and consult an attorney, which was refused by Mayer and his attorney, and that she finally signed the papers, as she says, because she was frightened and thought if she did not they would send her husband to the penitentiary. These statements are denied by Mayer and Hendrich who say that they made no threats whatever.

While, therefore, it may not be satisfactorily established that the threats spoken of by appellees were made, a consideration of the circumstances under which the note and mortgage was executed by appellee, Mrs. Oldham, will show that it was induced by the unlawful imprisonment of her husband. The arrest and detention of Oldham was unlawful, without reference to the question of his guilt or innocence, because such arrest was used by Mayer and Hendrich, his attorney, for the sole purpose of enforcing a settlement of a claim, and with no purpose of enforcing the criminal law. This was an abuse and perversion of criminal process, against public policy, and no court will allow the results followingfrom it to be enjoyed by him who so uses it. Bane v. Detrick, 52 Ill. 27; Gorham v. Keys, 127 Mass. 583.

To show the purpose of the arrest, it is only necessary to give a few extracts from the evidence of the actors in the proceeding.

Appellant, Mayer, says: I had two talks with Oldham, and my bookkeeper talked with him; I had another talk with him on the evening he was arrested. Mr. Hendrich was my attorney in the matter; he sent for Vandever and told him about it; Vandever was chief of police; we sent for him to arrest Oldham; I told him to bring Oldham up to me; they had no orders to take him to police headquarters; I had him in the custody of the police to get a settlement out of him.”

Vandever, chief of police, says: “We had no papers for taking him (Oldham); he was in custody on instructions from Mr. Mayer; we would not have permitted him to go if he had wanted to; Mayer instructed me to find Oldham and then he thought he (Oldham) would fix the matter all right. The understanding was, that they were to settle the trouble and Oldham was then to be released, and not until then.”

Mr. Hendrich, the attorney, says: “He (Oldham) was in charge of an officer all the evening. The object in having an officer was to keep him in sight, as we had difficulty in finding him.”

Appellant, by his own showing, seems thus to have -had the police force of the city so completely under his control that upon his declaration to the chief of that body that he desired one of his debtors an arrested and held in custody until he should settle, it was done. Ho thought seems to have been entertained of carrying this alleged defaulter before any other tribunal than Mayer and his attorney; and when the arrest had accomplished its intended purpose, an order of discharge from Hendrich seems to have been accepted by all parties as a complete end of this novel transaction.

It can not be doubtful, we think, but that for the unlawful means thus employed the contract would not have been entered into; that there was unlawful imprisonment and duress because the criminal law was used for an unlawful purpose, and therefore the note and mortgage executed by Mrs'. Old-ham should not be held binding upon her.

The decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    The Chicago & Alton Railroad Company v. Edward Woolridge.

      Railroads—Personal Injuries—Right of Passengers on Depot Platform—Instructions—Evidence—Sufficiency of—Servants—Negligence of.

    1. In an action by a party alleged to have been injured by the careless handling of a truck by a baggageman upon a depot platform, where certain instructions did not pretend to determine the liability of appellant under the circumstances shown, but merely laid down the general principles of care required of appellant’s servants, this court holds that the omission to state in such instructions that, in order to recover, the appellee must himself have been in the exercise of due care, was not erroneous.
    2. It does not constitute negligence, as a matter of law, for a passenger waiting for a train at a depot to go upon the platform before it is necessary for him to board the same. He is not required to remain in the waiting room.

      [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Macoupin County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Rinaker & Rinaker, for appellant.
    The third instruction is bad and should have been refused, because it does not inform the jury that the railroad company is only liable for the negligent acts of its servants, when such acts happen to injure persons who are themselves at the time in the exercise of due and ordinary care for their own personal safety. See C. & N. R. E. Co. v. Carroll, 12 Ill. App. 643; Peoria P. U. Ry. Co. v. O’Brien, 18 Ill. App. 28; City of Peoria v. Simpson, 110 Ill. 294.
    When a person is at the depot of a railroad company, even with the intention of taking one of several trains expected to depart therefrom, when there is an unusual number of persons present expecting also to depart from such depot on such trains, and when trains with passengers are at the same time arriving, it is his duty to exercise a degree of care for his personal safety commensurate with the increased danger to which such circumstances and conditions give rise, and to neglect to do so is a failure to exercise due and ordinary care on his part. Todd v. Old Colony R. R. Co., 3 Allen, 18; Hickey v. Boston & Lowell R. R. Co., 14 Allen, 429; Pittsburg R. R. v. McClurg, 59 Pa. St. 294; Indianapolis R. R. v. Rutherford, 29 Ind. 82; I. C. R. R. Co. v. Hall, 72 Ill. 222; Colorada Central R. R. Co. v. Holmes, 5 Col. 197; Cooley on Torts, 674; R. R. Co. v. Schwindling, 8 Am. & Eng. Ry. Cases, 544.
    Mr. R. B. Shirley, for appellee.
   Conger, J.

This was an action by appellee against appellant for injuries to his person caused, as stated in the first count of his declaration, by the negligence of appellant’s servants in permitting a baggage truck used on the depot platform to be run and driven against its train of cars while the latter were in motion. Verdict and judgment for appellee for $225. The main facts as stated on the trial by appellee were that he resided in Shipman, and on the evening of October 9, 1888, came to Oarlinville to a political meeting, and about ten, that evening went to appellant’s depot to return home. He says: “ I reside in Shipman, Illinois, am thirty-three years old, a carpenter by trade; came to Carlinville on the evening of October the 9th, the day of the ‘ Fifer rally,’ on the C. & A. train from the south; I went back to the 0. & A. depot a short time before the lightning train came in from the south ; my train going south, was on the side track; I went in the waiting room, stayed a little while, went down on the north end of the depot platform and came walking back just as the lightning came in; there was a crowd on the platform ; as I walked up, the baggage man came rolling the truck down just as the train came in going north; same as the train; he got pretty close to me, and let the truck get into the train, and it struck me; I saw it as it struck the train ; there was some baggage on the truck and he was rolling it right towards me; I was towards the building, and the people were giving the road for him; I was about twelve feet from the truck when it struck the train, northeast, next the house, and it was on the edge of the platform; don’t know if Seaman was rolling the truck as the time it was struck; he had hold of the truck when it struck, rolling it along and it struck the car; it was a large baggage truck; I was knocked down, hurt on the leg; there were seven places showing where I was struck, and injuries show yet; I was helped into the depot waiting room and on the train and went to Shipman that night.”

He had procurred a ticket at Shipman for the round trip.

Appellant introduced evidence tending to show a different state of facts. The baggage master, Mr. Seaman, in reference to the accident says:

“ I am the baggage master of the C. & A. R. R. at Carlinville, Ill., and have been for thirteen years last past; was on October 9th, last; I receive baggage, check it and put it on the cars; I wait until the train is in sight and then run truck up to where train stops for baggage, and usually, have time to go in and get the mail; I know where the train will stop; if there is not time to get the mail I stay until train stops and put the baggage on.
“On the night of this accident I was on duty when the lightning catne in, and had three pieces of baggage for Springfield, all checked; one was a boot and shoe trunk; I had them on the baggage truck south of the baggage room door at about 9 o’clock and until No. 3 had turned the corner, when I lit the gas at the baggage room door and then ran my baggage to where they usually stop; I pulled my baggage with my right hand and pushed the mail-cart with my left; I was at the north end of the truck with the mail cart at my left hand as I went up, pushing it; the effect of the way I was pulling it would be to run the rear end of the truck more towards the house than the train, because I was pulling it on one side.
“ I stopped right opposite the office door and turned facing the building, holding the baggage truck with my right hand and my left hand a hold of the mail cart; didn’t know but that they might shove it into the train; I didn’t leave it at all; such a crowd there; the engine and mail car passed me all right, that is all that I remember.
“Just as I got on the truck to light the gas a man said he had a trunk he wanted checked, but I refused because I then did not have time; I didn’t see him any more only as he came past me with the truck, the express truck; it came down from the north end same time train was coming in; came right down past my truck, past the north end of my truck, where I was standing still holding it; don’t know what became of it; I was knocked down and didn’t know where it was until after the train pulled out; up'to the time that truck came past, nothing had happened to me; there was one trunk on it.”

Other witnesses corroborate to some extent the statements of these two.

The theory of appell.ee is that the baggage master carelessly allowed one end of his truck to come in contact with the train, thereby throwing it forward and causing the injury to appellee; while appellant urges that the collision of the baggage truck with the train was caused, not by any fault or negligence of the baggage master, but because a stranger ran the express truck, upon which was his trunk, through the crowd upon the platform and against the baggage truck.

This was a question of fact to be determined by the jury and we find nothing in the evidence to warrant us in saying they have found erroneously.

Objection is made that the court erred in refusing to submit a number of special interrogatories to be answered by the jury. We think no error was committed in this respect. All that were material or relevant were included in others that were given to the jury. The first and third instructions given appellee, and which are as follows, are claimed to be erroneous:

1. The court instructs the jury, that persons passing over or standing on a depot platform, in a proper manner and going there in a reasonable time for the purpose of taking a train, are not trespassers; and the servants of a railroad company, knowing the enhanced danger at the depot ground to persons constantly passing and repassing, are required to exercise a greater decree of caution for the preservation and safety of life, than at other places, where persons have no right to be and where the employes of the company need not expect to find them.

■ 3. The court instructs the jury, that a railroad company is liable for the negligent acts of its servant, if done in the course of his employment, even though the company did not authorize or know of such acts, or may have forbidden them ; but the act must be done while the servant is engaged in the service he is employed to render, and must also be done in the course of that employment.

The principal criticism of these instructions seems to be that they fail to state that appellee must himself have been in the exercise of due and ordinary care at the time. We see no force in this objection. They do not pretend to determine the liability of appellant under the circumstances shown, but lay down the general principles of care and caution required of appellant’s servants, in which we see no error.

The fourth refused instruction of appellant in substance states that unless the plaintiff was at the place where he was injured, on the platform of defendant’s depot, on business with the defendant, or was there to take a train about to depart from the station, or to meet some one expected to arrive on the train then arriving, or to see some one about to leave on that train, then, if there was a suitable waiting room, though he was expecting to depart on some other train for which he may have been waiting, he had no right to be at the place he was, when he was injured.

We do not think this states the law correctly. To hold that a passenger waiting at a railroad depot for his train to arrive must remain in the waiting room, and that if he goes out upon the platform at any time before it becomes necessary to board his train, he is guilty of such negligence as to prevent his recovery for an injury like the one in question, is not consistent with reason or common sense.

After a careful consideration of the whole case, we fail to see any good reason for interfering with the judgment of the Circuit Court and it will therefore be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    The People ex rel, etc., v. Edgar W. Frost et al.

      Schools—Mandamus—Demurrer—Text Books—Meetings—Regular or Special—Presumption—Notice.

    1. Upon a petition for mandamus to compel school directors to permit the use of a certain series of text books, alleged to have been adopted by the board at a meeting at which all were present, it will be presumed that the meeting was either a regular or special one, and a demurrer setting forth that it is not alleged that the action taken was at a regular meeting, as required by statute, will be overruled.
    2. Reasonable notice is necessary to require attendance of the directors at a special meeting of the board; but if all the members come together and by mutual agreement hold a meeting, any objection to the shortness, or absence, of notice is waived.

      [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Macoupin County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Rinaker & Rinaker, for appellant.
    Messrs. A. W. Yancey and C. H. Patton, for appellees.
   Per Curiam.

This was a petition for a writ of mamdamus to compel the school directors of district No. 3, etc., etc., to permit the use of a certain series of text books which, it was alleged, had been adopted for use in the district within a period of four years before the filing of the petition. An answer was filed to the petition, and a demurrer being interposed to the answer, was carried back and sustained to the petition. The only question is as to the sufficiency of the petition. The objection taken in the Circuit Court and urged here is that it did not appear that the action of the directors in adopting said series of books was had at either a regular or a special meeting of the directors, and hence it did not appear that the action in question was official.

The language of the petition in this respect is as follows:

“And your petitioner further states unto your honor, that on the 5th day of July, A. D. 1887, Edgar W. Frost, Abram D. Wood and Enoch M. Davis were, and now are, the acting school directors of district number three (3), township number seven (7), range eight (8), county of Macoupin and State of Illinois aforesaid, and on said date they, as such school directors, had the right and it was then and there their duty, as such directors, to direct what text books should be used in the school maintained and supported in said school district, and to strictly enforce uniformity of text books in said school.
“And your petitioners state that in the performance of their said duty as such school directors, the)', the said ‘ school directors of district number three (3), township number seven (7), range eight (8), county of Macoupin and the State of Illinois,’ did, on the day last aforesaid, ' meet, and each of said school directors being then and there present did, by the unanimous action of said school directors,’ adopt and direct to be used in the school of said school district, as text books to be used therein, certain text books known as the Standard Educational Series, and more particularly described as the * * *
“That in pursuance of said action of said directors the aforesaid books were introduced and used in the schools of said school district during the entire school year of the year A. D. 1887, and during the fall of the year 1888 until on or about the 6th day of December, A. D. 1888.”

It is provided by statute, section 48/ chapter 122, “ That the board of directors shall hold regular meetings at such times as they may designate, and they may hold special meetings as occasion may require, at the call of the president or any two members, and no official business shall be transacted by the board except at a regular or a special meeting.” The averments above quoted show that it was the duty of the directors to direct what books should be used; that in the performance of that duty they met, and, all being present, by unanimous action adopted and directed the use of the boobs in question, and that in pursuance of said action the books were introduced and used until on or about the 6th day of December, 1888. We are inclined to the view that the facts averred are sufficient to call for an answer. It appearing that the directors met in the performance of the duty in question, it will be presumed the meeting was either regular or special.

A regular meeting is one held at a designated time, but a special meeting may be held as occasion may require, on the call of the president or of two members. Ho business can be transacted unless at a regular or special meeting, but a special meeting may be held on call. It is not. provided what notice shall be given in case of a special meeting, and the law would imply reasonable notice. Plainly the object of this provision is that every member may be notified when business will be in order. Reasonable notice would be necessary to require attendance at a special meeting, yet if the notice were unduly short, and the members so notified chose to waive the objection, they might do so and the meeting would be good; and so if the members all came together with- no previous intention of transacting business, it would be competent for them, upon suggestion and by mutual agreement, to proceed to hold a meeting and transact any official business they might deem necessary.

The object of the statute, being to provide notice, is attained if the directors meet and act, all being present. Thomas v. Citizens Horse Railway Company, 104 Ill. 462.

The judgment will be reversed and the case remanded.

Reversed and remanded.


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    Eliza Mashburn v. City of Bloomington.

      Municipal Corporation—Ordinance—Breach of—Disturbance of the Peace—Salvation Army—Evidence.

    In a prosecution under a municipal ordinance touching conduct likely to frighten horses and embarrass the passage of vehicles, this court declines, in view of the evidence, to interfere with the judgment against the defendant.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    Messrs. Tipton, Beaver & Peirce, for plaintiff in error.
    Mr. A. E. DeMange, for defendant in error.
   Per Curiam.

This was a prosecution by the city of Bloomington against appellant for a violation of the following ordinance of the city.

Sec. 4, Art. 3, Chap. 29: “ Whoever shall, within the streets of said city, engage in any sport, amusement or exercise likely to scare horses or embarrass the passage of vehicles, or whoever shall raise or fly any kite in any part of said city devoted to business, shall be fined not less than three nor more than twenty-five dollars.” Appellant was found guilty and fined $3 and the costs.

The evidence shows that appellant, as a member of the salvation army, took part in a meeting held on the square of the city and by beating a drum and carrying on the other-exercises of the meeting caused such a crowd to gather around them as to largely prevent and embarrass the passage of vehicles along the street where they were, and also to frighten passing horses.

Counsel for appellant in their brief urge that this conviction is an invasion of the religious rights and liberties of the society to which she belongs, as well as her own, and the case of Trotter v. Chicago, decided by the Appellate Court of the First District in an opinion filed May 29, 1889, is cited.

We fail to see that any such question is involved, or that the Chicago case has any bearing upon this. In that case the question was as to the power of the city to forbid parades and processions without the permission of the chief of police; while in the present case the whole question is one of fact, whether appellant did, or did not frighten horses and embarrass the passage of vehicles in the public streets of the city. From the evidence, the jury have said she did, and we sec no good reason for interfering with their conclusion.

It can not be insisted that any one has a right to do this, or that the city has not the right to prevent it.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    J. H. Randolph v. Drew Inman.

      Partnership—Dissolution of—Lapse of Time—Bill for Accounting— Limitations.

      Upon a bill filed to secure the settlement of a partnership, and for an accounting, although the same had been finally dissolved more than five years previous thereto, this court holds that the statute of limitations did not bar the relief asked, it appearing that within that time there had been consultations as to unsettled matters, requests and promises to account, and credits and charges by defendant, who was settling the partnership business against complainant on account of partnership claims collected and paid by him.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of DeWitt County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Moore & Warner and R. A. Lemon, for appellant.
    Messrs. Fuller & Ingham, for appellee.
   Wall, J.

On the 12th of August, 1887, the appellant filed his bill in chancery against the appellee to dissolve and settle a matter of partnership then alleged to¿ exist between the parties.

The answer denied that any partnership was in existence at the filing of the bill and alleged that the partnership relations had ceased by virtue of a dissolution thereof in March, 1879, and that whatever rights appellant had to a settlement in respect to said matters had accrued more than five years prior to the filing of the bill. The appellant by an amendment to the bill alleged that within five years before the filing of the bill the appellee had promised to settle up all copartnership business accruing prior to March 4, 1879, and to pay whatever balance might be found against him on such settlement. "Upon a final hearing the court found as follows:

“ That the copartnership of Randolph, Milmine & Inman, which existed from March 1, 1877, to March 1, 1878, under the name and style of Milmine & Inman, was dissolved February 28, 1878; that the copartnership entered into between J. H. Randolph and Drew Inman, March 1, 1878, continued in existence until March 4, 1879, at which time it was dissolved, and that since March 4, A. D. 1879, John H. Randolph and Drew Inman have not been in partnership in any way whatever.
“ That the statute of limitations was well pleaded by the respondent in bar of the right of complainant to file a bill asking and praying for an accounting and settlement of the affairs of the two copartnerships aforesaid.’’ Thereupon it was decreed that the bill be dismissed at the cost of the complainant. From this decree an appeal is prosecuted to this court.

Upon a careful examination of the evidence we are entirely satisfied with the finding that the partnership relations between the parties were finally dissolved on the 4th of March, 1879, and to that extent the decree will be affirmed. The only question is whether the court was warranted in refusing relief on the ground of laches in filing the bill. It is true that more than five years had elapsed since the parties had dissolved the partnership, and that courts of equity will generally consider such a delay, when unaccounted for, as a sufficient reason for denying relief. It appears; however, that when the partnership was dissolved there were many unsettled matters which the appellee undertook to adjust, involving the collection of partnership assets and the payment of partnership debts; that the assets had not all been collected when the bill was filed; that appellee had from collections and his own funds paid all the firm debts except the amountdue John Warner & Co.,which had been paid after being reduced to judgment by appellant but a short time before the filing of the bill, and that in the accounts kept by the appellee he had given credit to appellant in respect to the collection of assets and had made charges against him within five years. It also appears that appellee frequently, within five years, recognized the unsettled condition of these accounts and had urged the appellant to come to an adjustment of the same, averring readiness to abide by the result. Some of these offers were in the form of written communications dated at different times, the last one appearing in the record bearing date April 1, 1887, in which he says, among other things: “We have a basis for business, and according to that basis you and I, of right, must settle. This will determine our individual responsibility. I think you liable for the Warner notes, and in addition thereto, indebted somewhat to me; but as to this, a settlement alone will determine. I am ready to meet you at any time for settlement; further than this I can not propose.” The present suit was brought within less than six months after this letter was written.

Appellee testified that he had been ready and willing all the time to settle, and had often stated so to appellant. With what grace can he now set up the statute of limitations as a defense? In 2 Lindley on Partnership, 967, it is said: With reference to acknowledgments, it was held in a partnership case, where no account had been come to for six years, that a signed acknowledgment of a liability to account in respect to matters more than six years old, was sufficient to justify a decree for an account in respect to them, although the acknowledgment did not contain an admission that anything was due, nor any express promise to pay what might be found due on taking of the account.” See also Kane v. Bloodgood, 7 Johns. Ch. 134; Prann v. Sympson, Kay’s Ch. Rep. 678; Skeel v. Lindsey, 2 Ex. D. 314.

In view of the repeated statements of the appellee that he desired a settlement, admitting thereby that there was something to be settled, that he had credited appellant with respect to partnership matters within five years, and that in regard to at least one item of copartnership assets, the Emerick judgment, the parties had conferred together within that time, the suggested defense ought not to prevail. Although it had been more than five years since the partnership ceased, yet by reason of the matters referred to, the process of winding up and liquidating the partnership affairs had never fully terminated, though it is probable nothing more will be realized from the assets of the firm. By these matters, and the occasional conferences between the parties, this process had bee'n kept in esse. It would be inequitable to hold, under the circumstances, that the delay in filing the bill ought to bar an accounting.

We therefore consider the decree erroneous, in so far as it denies relief on this ground, and it is reversed, with instructions to proceed to an adjustment and settlement of the right of the parties in reference to the partnership relations which terminated on the 4th of March, A. D. 1879.

Decree affirmed in part; reversed in part; remanded with instructions.


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    S. G. Cash et al. v. The People, for use of, etc.

      Principal and Surety—Constables—Action on Bond—Illegal Acts of Principal—Liability of Surely.

    The sureties on the official bond of a constable are liable for illegal acts on his part while engaged in making an arrest.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Coles County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. F. K. Dunn, for appellants.
    The declaration does not state a cause of action entitling plaintiff to recover against the constable and his sureties on his official bond. The assault is charged to have been unnecessary and wilful and not in the execution of process. Where a sheriff or constable, having a writ directing him to take the property of one person, takes the property of another, it has been decided that such a seizure was not a breach of the condition of a sheriff’s official bond and did not make his sureties liable. State v. Conover, 4 Dutch. 224; State v. Long, 8 Ired. L. 415 ; State v. Brown, 11 Ired. L. 141; Gerber v. Ackley, 32 Wis. 233.
    In the Appellate Court of the second district it has been held otherwise on the weight of authority, and the Appellate Court of the first district, while not deciding the question, inclined to that view, and the Supreme Court of the United States held that the preponderance of authority was in favor of the liability of the sureties. Horan v. The People, 10 Ill. App. 21; Walsh v. The People, 6 Ill. App. 204; Lammon v. Feusier, 111 U S. 17.
    But those decisions were all made in cases where the officer actually had process in his hands, by virtue of which, acting in his ministerial capacity, he claimed to do the acts complained of. But in this case it is not charged that the officer had any writ, but simply that, having arrested Gwinn, whether with or without authority is not alleged, upon a charge of violating a village ordinance, he wilfully assaulted him. The case is like Walsh v. The People, 6 Ill. App. 204, and, so far as appears, the act was a mere private trespass, for which his sureties on his official bond can not be held liable. See Commonwealth v. Cole, 7 B. Mon. 250; Turner v. Collier, 4 Heisk. 89; South v. Maryland, 59 U. S. 396.
    Messrs. Craig & Craig, for appellees.
   Conger, J.

This was an action of debt brought upon the bond of appellant, Cash, who was village constable of the village of Oakland. The declaration alleged that Cash, as such village constable, arrested appellee Gwinn for violating one of the village ordinances, and that, instead of taking him to the place of trial, unnecessarily, brutally and wilfully assaulted and beat him.

The pleas were, first, non, est factum; second, denying the assault; third, alleges that at the time when, etc., the said William F. Gwinn was found intoxicated in the public square of the village of Oakland, disturbing the peace of the public and the peace and quiet of the neighborhood by loud and unusual noises and tumultuous and offensive carriage, and the defendant Cash, who then and there had view of said offense, then gently laid hands on said Gwinn and took him into custody, using only necessary force to take and detain him, and doing no unnecessary damage, and because it was late at night and an unreasonable hour to carry the said Gwinn before a magistrate, said Cash necessarily imprisoned him in the village prison for a time, using only necessary force and doing no unnecessary damage, which are the same trespasses complained of. Appellee recovered a verdict and judgment for §275.

The first objection of appellant is that the declaration does not state a cause of action, entitling appellee to recover from the sureties upon the official bond of appellant, for the reason, as stated by counsel, that "the assault is charged to have been .unnecessary and wilful, and not in the execution of process.”

\ We do not think the objection is well taken because appellant was performing an official act in making the arrest, and if in so doing he acts illegally and wrongfully his sureties are liable.X Besides, the third plea expressly sets up the arrest and that no more force was used than necessary, and this seemed to have been the real question at issue before the jury. This being a question of fact, we are inclined to think the jury were warranted by the evidence in finding that appellant did unnecessarily, brutally and wilfully assault and beat appellee.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    E. S. Fowler v. S. H. Richardson.

      Replevin—Written Contract—Parol Evidence—Judgment—Worm of.

    1. Evidence touching a parol contract is inadmissible, when the effect thereof would be to vary one in writing between the same parties.
    2. Where, in an action of replevin, the trial court instructed the jury to find as in case of non-suit, which was accordingly done, and the motion for a new trial being overruled, “it was ordered that the defendant recover of the plaintiff possession of the property, with one cent damages and costs, with execution therefor, aud that a writ of retorno habendo should issue therein,” the judgment was correct in substance and sufficient in form.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Gross & Broadwell and Connelly & Mather, for appellant.
    Messrs. Patton & Hamilton and W. F. Herndon, for appellee.
   Wall, J.

This was an action of replevin by appellant against appellee, for two barrels of linseed oil, one barrel mineral paint and a quantity of white lead in oil, brought before a justice of the peace, and appealed to the Circuit Court. The case coming on to be tried by jury, E. S. Fowler, plaintiff, testifies: “lam the plaintiff in this suit; I made a contract on the 10th day of May, with defendant, to paint my house. I have it here in writing. He came to my house and offered to do it for $100. A contract was entered into at that time; it was in writing. Here is the writing. I wrote it, and the paper has been in my possession since it was signed. Richardson said if I would advance him $70 to buy the paint he would do the job.” Paper is read to the jury as follows:

“May 10, 1888.
“Received of Dr. E. S. Fowler seventy dollars, on contract to paint the roof of his house and barn two coats, and all new wood work outside three coats, which I agree to do for one hundred dollars, balance to be paid on completion of work, and any paint remaining to be delivered to Dr. Fowler.
“ S. H. Richardson.”

Whereupon plaintiff offered to prove as follows:

“That a parol contract was made between plaintiff and defendant on May 10, 1888, for the painting of plaintiff’s house and barn, and that plaintiff by that contract advanced $70 to the defendant, who, by the contract, was to use this money in buying the paint and oil to be used in painting the house, and was to place the oil and paint in the plaintiff’s barn, mix it there, and leave there all the paint and oil that should remain after the painting was completed, and that after this contract was agreed on the plaintiff paid the $70 to the defendant and took from him the writing to evidence that the $70 were used by defendant in buying the paint and oil named in the writ of replevin in this case, and that defendant refused to deliver it at the barn of plaintiff, and refused to surrender it to plaintiff on demand, or to do the work.” And the court refused to allow said proposed evidence to be given to the jury, 'and plaintiff excepted to the ruling of the court rejecting said evidence. And thereupon the court instructed the jury to render a verdict as in case of non-suit, which was done.

The plaintiff, to recover, was required to prove that he was the owner, or lawfully entitled to the possession of the property. The written paper was evidence of a contract to paint the house and barn for $100, upon which contract $70 was advanced, and that whatever paint remained was to be delivered to the plaintiff. The offered oral evidence was for the purpose of showing that $70 of the money should be appropriated to the purchase of paint, and that therefore the defendant should have but $30 for his work. To this extent it tended to vary the writing which shows a contract for $100 for the whole job, work and material considered. By the writing, if the defendant was able to provide the necessary material for less than $70, he would have more than $30 for his work.

The oral evidence offered did not, in terms, show that the paint in suit was actually bought with the money advanced, but if it is to be inferred that such was the fact from what was offered, it would not follow that the plaintiff was entitled to recover it, unless the effect of the proof would be to show that the paint, when so bought, was to belong to the plaintiff or to be placed in his possession. It is by no means clear, if the facts offered to be proved were true, that the plaintiff could successfully assert such claim; but if such a construction could fairly be placed upon the offered proof, then the effect would be to vary materially the written contract, under which the defendant would be entitled to own and control all unused material until the completion of the work, and then anygpaint remaining was to be delivered to the plaintiff. It is well set-tied that the familiar rule which prohibits the variation or contradiction of a written instrument by parol contemporaneous evidence is not violated by parol proof of matters not embraced in the writing, and not inconsistent with it. It is not infrequent that a contract is put in writing in part only, the residue being unnoticed, and in such cases the unwritten part may be proved by parol or verbal evidence. We are of opinion, however, that this is not such a case, and that the real effect of the proposed proof is to vary what is written.

The court properly rejected the evidence, and as the plaintiff did not propose to make further proof, it was proper to instruct the jury to find the issues for the defendant.

Objection is taken to the form of the judgment. The bill of exceptions states that “ the court instructed the jury to find as in case of a non-suit, which was accordingly done.” The verdict is not set out in the bill, though it appears in full in the order of court showing the trial.

The motion for new trial being overruled, it was ordered that the defendant recover of the plaintiff possession of the property, with one cent damages and costs, with execution therefor, and that a writ of retorno habendo should issue therein. The judgment is correct in substance, and is sufficiently formal. R. S., Chap. 119, Sec. 22.

No other objections being urged, the judgment will be affirmed.

Judgment affirmed.


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    Phœnix Insurance Company of Brooklyn v. A. H. Carlock.

      Fire Insurance—Premium Note—Failure to Pay—Extension of Time —Waiver of Conditions—Evidence—Instructions.

    In an action brought to recover upon a fire insurance policy this court holds as erroneous an instruction given in behalf of plaintiff, the question involved being as to whether certain extensions of time for the payment of the premium note amounted to a waiver of conditions in the note and policy setting forth the necessity for the prompt payment thereof.

      [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
    This was an action of assumpsit brought by appellee against appellant on a policy of insurance, issued by appellant on the dwelling house of appellee September 16, 1884, for $2,000, which, among other conditions, contained the following:
    “In case the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force and remain null and void during the time said note or order remains unpaid after maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium note, however, revives the policy and makes it good for the balance of its term. Ho agent or employe of this company, or any other person or persons, have power or authority to waive or alter any of the terms or conditions of this policy, except only the general agent at Chicago, Illinois, and any waiver or alteration by him must be in writing.”
    At the time of receiving the policy appellee did not pay any cash, but for the premium gave a note as follows: “$62.50.
    On the first day of October, 1885, for value received, I promise to pay to the Phœnix Insurance Company, of Brooklyn, New York (at the First National Bank in Bloomington, Illinois,) or order, sixty-two dollars and fifty cents in payment of premium on policy No. 0,156,750 of said company. If this note is not paid at maturity, said policy shall then cease and determine and be null and void, and so remain until the same shall be fully paid and received by said company. In case of loss under said policy this note shall immediately become due and payable, and shall be deducted from the amount of said loss. It is understood and agreed that this note is not negotiable. A. H. Cablook.”
    October 2,1885, the note had not been paid, and appellee wrote to T. R. Burch, appellant’s general agent at Chicago, asking for an extension of time to pay his note. In this letter he says: “I would like to have the time extended for three months, if possible, in order to get my stock ready for market and grain sold.” To that letter Mr. Burch replied as follows:
    “ October 10, 1885.
    “ A. H. Oarlock, Oak Grove, Illinois:
    “ Dear Sir—-Replying to yours of the 2d inst., we will say, that we have extended the time for .payment of your note given for policy Ho. 0,156,750 until December 10, 1885. We must ask you to give it prompt attention at that time and see that it is paid without further notice, for we must have the money before January 1.
    “Very respectfully yours,
    “ T. R. Burch, General Agent. ”
    May 13, 1886, the note, not being paid, was placed by appellant in the hands of Herrick, Lucas & Spencer, attorneys, at Bloomington, for collection, and on that day they sent notice of such fact to appellee. May 17th appellee replied, and among other things said: “I hope to get a little time to get this money, at least two weeks, and three would be better if it could be granted. * * * I can get it in two weeks or three out of my hogs,” etc.
    To that Herrick, Lucas & Spencer replied, May 18, 1886 : “A. H. Oarlock, Oak Grove, Illinois:

      “ Two weeks will be in ample time.”
    July 15, 1886, apjiellee sent $50 to Herrick, Lucas & Spencer which was credited on the note. In the letter inclosing the $50, appellee said: “I can settle it (the note) in full in eight or ton days, or not longer than two weeks.”
    To that, Herrick, Lucas & Spencer replied:
    “A. H. Oarlock, Oak Grove, Illinois:

      “Dear Sir—Tour favor of July 15th containing $50 reached us to-day, and we have indorsed that amount on your note to the Phoenix Insurance Company. * * * We are willing to carry it for you for the next two weeks as you request.”
    August 19, 1886, Herrick, Lucas & Spencer wrote to appellee:

      “Dear Sir—Please arrange to pay the balance due the Phœnix Insurance Company as soon as possible; we would like to close the matter up.”
    December 15,1886, the balance of the note not being paid, Kerrick, Lucas & Spencer again wrote appellee: “You are hereby notified that your note in favor of Phoenix Insurance Company * * * is in our hands for collection. Please attend to the matter at once and save costs.”
    Appellee testified, and there was no testimony to the contrary : “ I am the plaintiff; the loss of personal property was $175; that on the house about $1,600; the fire was the 13th of June, 1888.”
    Ho question was made, but proper notice of the fire was given to appellant. It was conceded that Mr. Burch was the general agent of appellant, but Kerrick, Lucas & Spencer were only “ the attorneys for the defendants at that time for the collection of the note.”
    On that record the Circuit Court instructed the jury on behalf of appellee as follows: “ The court instructs the jury, that if they believe, from the evidence, that the premium note of $62.50 was given by the plaintiff to the defendant in full consideration for the policy in evidence; and if the jury further believe, from the evidence, that at the time, or about the time of maturity of the said note, the defendant extended the time for the payment of the same until the 15th day of the following December, unconditionally; and if the jury believe, from the evidence, that the defendant, by its agent, after the lapse of such extension, gave further extension of the time upon said note, then, in such case, the jury have a right to say that such acts of extension of time on said note constitute a waiver 'of the provision in the policy in relation to prompt payment of the note, and in such case the jury should find the issues for the plaintiff upon the question of waiver. And in case you find for the plaintiff, you will assess plaintiff’s damages at what the evidence shows is due the plaintiff, less the balance due upon his note offered in evidence.”
    The jury returned a verdict of $974 in favor of appellee, upon which judgment was rendered.

      Messrs. Kerrick, Lucas & Spencer, for appellant.
    Messrs. Tipton & Beaver and W. B. Carlock, for appellee.
   Conger, J.

We think the language of the instruction given for appellee was erroneous and misleading. It is too much to say to the jury that from the mere fact of appellant, or its agents, giving extensions of time for definite periods, that such extensions would constitute a waiver of the conditions in the note and policy in this respect.

The most that could be said would be that if from all the circumstances and the course of dealing between the parties as shown by the evidence, the jury believed, as a matter of fact, that appellee was reasonably justified in believing that the company did not intend to insist on the condition, and that appellee acted on such belief, that under such circumstances the condition might be considered as waived.

In other words, the extensions of time of payment can not be declared by the court, as a matter of law, to waive the condition in the note and policy, but they are circumstances which the jury may take into consideration in determining whether or not a waiver was intended by the parties.

For the error of giving this instruction the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remandd.