text:
      John McNulta, Receiver, etc., v. John R. Lockridge, Administrator, etc.

      Railroads—Personal Injuries—Pleading—Action against Defendant in Representative Capacity—Plea of General Issue—Responsibility of Receiver for Negligent Acts Done under his Predecessor—Careful Habit of Deceased—Evidence of, When Admissible—Judicial Notice—Instructions.

    1. In an action against a receiver in his representative character, allegations in the declaration of the orders of court appointing the defendant and his predecessor, are admitted by a plea of the general issue and need not be proved.
    2. Petitions on file for the removal of the case to the Federal Court, in which the defendant alleges his appointment as receiver by such court, can be judicially noticed by the court and avoid the necessity of proof of defendant’s appointment as receiver.

      3. Where an injury is received through the negligence of the servants of a railroad corporation in the hands of a receiver, the action for such injury is properly brought against the receiver of the company at the time the action is brought, though he was not the receiver at the time the accident occurred.
    4. Where there is no living witness of an accident causing the death of the person in question, evidence as to his habits, whether careful or otherwise, is admissible in an action against the party through whose alleged negligence the accident occurred.
    5. Refinements in verbal criticism upon instructions are not to be encouraged and will not lead to the reversal of a case where it appears that the jury were not misled.
    6. It is not error for the court to decline to give instructions which are but repetitions in substance of those already given.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Christian County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. John G. Drennan and George B. Burnett, for plaintiff in error.
    Messrs. Ricks & Creighton and Patton & Hamiltoh, for defendant in error.
    Counsel seem to regard the judgment in the case as being against McNulta personally. The judgment is against McNulta as receiver, t.o be paid in due course of the administration of the trust.
    No execution is ordered against him personally or officially. The argument of counsel proceeds upon the theory that in this suit an effort is made to make one man liable for the torts of another, which every one will concede can not be done. Had this suit been brought against McNulta, simply, it requires no argument to show that no recovery could be had against him for the negligence of Cooley. It is well settled that an action of this character can not be maintained against a receiver personally for the negligence of his servants while transacting business as a receiver. Beach on Receivers, Secs. 715-18; Woodruff v. Jewett, 37 Hun, 205; Commonwealth v. Runk, 26 Pa. St. 235; Davis v. Duncan, 19 Fed. Rep. 477; Wait on Insolvent Corporations, Sec. 242; 2 Rohrer on Railroads, 898.
    It is also claimed by counsel for plaintiff in error, that in the present instance defendant in error has his action against Cooley, notwithstanding he is no longer receiver, but in this they are not supported by authority. Beach on Receivers, Sec. 720.
    If this suit can not be prosecuted, defendant in error is remediless, because no action can be maintained against Cooley, since he is no longer receiver. A receiver is an officer of the court, and the property in his hands is in custodia legis. and can not be reached by execution.
    The direct question has not been passed upon by any court of last resort, that we are aware of, and we presume counsel for plaintiff in error have found no published opinion on the subject, or they would refer to it.
    We take the liberty, however, of stating that Judge Gresham, in passing upon the motion to remand these cases, very emphatically repudiated this same proposition, then vigorously urged by Mr. Beale, one of the attorneys for the receiver.
    It has been decided also, that if a receiver who has commenced a suit in his name, be removed, his successor may be substituted as plaintiff in his stead, and that the death of the first receiver after the substitution of his successor, will have no effect upon the action by way of abatement. Sheldon v. Adams, 27 How. Pr. 179; same case, 41 Barb. 54; Searcy v. Stubbs, 12 Ga. 437; Beach on Receivers, Sec. 692.
    Suits pending against a corporation are not abated by the appointment of a receiver. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199; T. W. & W. Ry. Co. v. Beggs, 85 Ill. 80; Wait on Insolvent Corporations, Sec. 248.
   Pleasants, P. J.

On the 15th of January, 1887, James Molohon and his wife, in attempting to cross the Wabash railroad at a public crossing, in a sleigh, were struck and killed by a locomotive engine of the Wabash Railroad Company. In July following, the defendant in error, their administrator, brought two suits against the receiver of said railroad company for the alleged injury. The process and declaration being alike, except as to the name of the decedent, the two cases were consolidated by agreement, and tried as one. It was alleged that at the time of the injury complained of the railroad was being operated by Thomas M. Cooley, as receiver, appointed by an order of the United States Circuit Court, and that on the first day of April, 1887, the plaintiff in error was, by like order, appointed his successor; and the specifications of negligence alleged in the counts respectively, were (1) that the statutory signals were not given on approaching the crossing ; (2) that trees, shrubbery, etc., were permitted to remain on the right of way upon and about the crossing, which obstructed the view of persons traveling on the highway, and prevented the deceased from seeing the engine in time to avoid it, and (3) that the engine was driven at a high and reckless rate of speed, to wit, of forty miles an hour. All of these acts and omissions were charged against said Cooley, as such receiver, or his servants.

A general demurrer interposed to the declaration and to each of the four counts thereof was sustained as to the first but overruled as to the others, which contained, respectively, the charges above stated. Thereupon the general issue was filed, on which alone the trial was had. Upon the close of plaintiff’s evidence in chief, the defendant asked the court to instruct the jury that upon that evidence he was not entitled to recover, which was refused; and thereupon the trial proceeded, and resulted in a general verdict and special findings for the plaintiff for $6,000. A new trial was denied, and judgment entered upon the general verdict. The errors complained of are all in giving and refusing certain instructions, and overruling the motion for a new trial.

First, the instruction refused as just above stated, which was asked on two grounds : that the orders appointing Cooley and McNulta were material and alleged, and yet no proof of them was offered: and that there was no pretense of proof of any negligence on the part of McNulta, as receiver or otherwise, or of his servants.

These orders, we apprehend, were material and alleged only as characterizing the defendant, who was sued as the receiver, succeeding Cooley, of the Wabash Railway Company-—an official and representative character. In that character he was charged, that is, alleged to be chargeable, for certain specified “ grievances, ” among which was not the fact that he was the receiver, succeeding Cooley, of said company, for that fact would not be, in contemplation of the law, a grievance. In answer to that charge the defendant says “the said defendant” — who is not John McNulta, but “John McNulta, Receiver,” etc.— “comes and defends the wrong and injury, when, etc., and says he is not guilty of the said supposed grievances” etc., and “ of this” alone he “puts himself upon the country. ” He might have said, and we may well suppose he would have said, if it had been true, that he was not the receiver, etc.; but he did not. He impliedly admitted that he was such receiver, by designating himself as the defendant who was sued, and not denying the allegation of his receivership. Such we understand to be the sense and, as a rule, the effect of the general issue pleaded by one who is sued, not as an individual, but in a special character. Stephen on Pl. 158. Where the injury alleged is to the relative rights of the plaintiff, it puts in issue also the relation out of which they are claimed to arise, since that involves the exercise of the right. Conant v. Griffin, 48 Ill. 414; 1 Chitty on Pl. 472. But it does not put in issue the character in which the defendant is sued. 1 Ch. Pl., Marg. p. 478 (9th Am. Ed.). Hence, in this case, there was no need of evidence to prove this allegation, however material. The same reasoning applies to the alleged appointment of Cooley.

Besides, the record shows an order of the court removing these causes to the United States Circuit Court, upon petition of the defendant setting forth that he was sued as receiver, etc., and sought to be charged as such for the tort or wrong of Cooley as his alleged predecessor in such receivership or of his servants, “without first having obtained the leave of the said Circuit Court of the United States,” and that the right of plaintiff to bring or maintain the action involved and required the construction of the act of Congress, approved March 3, 1887, which provides by Sec. 3, that “every receiver * * * of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his, in carrying on the business connected with such property, without the previous leave of the court in which such receiver was appointed.” We understand from the petition itself and from the argument here, that the particular part of the act supposed to require construction was the phrase, “for any act or transaction of his,” presenting the question whether such receiver may be sued without such leave for the act or transaction of his predecessor. We also understand that the averment in the petition, that this question was involved, and a construction of that phrase in the act of Congress was required, meant that it was necessarily involved and required. But this was not true unless the defendant was in fact such receiver and Cooley was his predecessor; for the question could have been eliminated and the necessity of such construction avoided by a plea denying that he was receiver. The petition, then, was an admission of his receivership, of which the court below, to which it was made, could take judicial notice.

The other ground of the instruction was that the injury, if any, was proved, as it was also charged, to have been done under the administration of Cooley and not of the defendant. It is contended that for such an injury the defendant can not be held liable because neither he nor his servants committed it, and that the action for it can be maintained only against Cooley or his servants, who did commit it. This would clearly be true of an action brought to enforce a personal liability for such an injury, and the proposition is here contended for upon principles applicable to such an action. As here presented the question is conceded to be a novel one. Counsel confess that they have been unable by the most diligent search to find an authority directly upon the point, excepting an assertion in Kerr v. Little, 39 N. J. (Eq. R.) 83, and this, with the provision of the act of Congress above quoted, is all that is cited in the brief.

That case was a suit in equity against the receiver of the Central Railroad Company, of New Jersey, for damages for the breach of a contract made with the complainant by the late receiver, by which complainant was to remove from the engines the coal, cinders and ashes, and was to have the same for his labor. The defendant filed a general demurrer, and the question considered seems to have been that of equity jurisdiction. All that was said in the opinion bearing upon the point now before us was the following: “ * * * the complainant alleges (and truly) that he is without remedy at law. He can not maintain an action against the present receiver on the contract, for he did not make it.” Ho authority for the assertion was cited, and the reason given would apply to a suit against an administrator on a note of his intestate—a good reason where the liability sought to be established is personal, but ignoring entirely the effect of the special character in which the defendant is sued, and which is the decisive question involved. The jurisdiction was sustained upon the ground that complainant “ had a claim upon the trust fund still under the control of that court.”

So here, it is said that “no action can be maintained against one man for the tort of another where the relation of master and servant does not exist; ” that “it is sought to make the defendant liable upon the sole ground that he succeeded to the operation of the property, in the operation of which, by another, the injury arose;” that “ an administrator may operate machinery belonging to his intestate, and for the torts of his servants may be sued in an action at law,” and “like a receiver, * * * before or after he has resigned his trust, but no action can be maintained against his successor for his acts ; ” that “in the present case the plaintiff has his action against Cooley,” and that “ if * * * Cooley has resigned, this does not in any way affect plaintiff’s right to sue him ; nor does the fact that defendant has succeeded him make the defendant liable” for his tort; and that “ it is not pretended that the defendant sustained any relation to the servants through whose alleged negligence the injury was occasioned.” The foregoing is all that is submitted by way of argument upon the point for the plaintiff in error, which counsel conclude by the statement that “ upon what principle he can be made liable for their tortious acts is beyond our comprehension.” We regret that counsel did not consider and discuss for our help the only principle upon which, as it occurs to us, such a liability is or could be claimed. The legal propositions asserted are true and elementary as to a personal liability. But none such is here contended for. The ground of plaintiff’s claim is not stated as we understand it. It is not “ solely” or at all that the defendant “ succeeded to the operation of the property.” A purchaser at judicial sale might have succeeded to that. Nor is it that he sustained any relation to the servants of Cooley, through whose alleged negligence the injury was occasioned. But it is the relation of Cooley to the railroad company and the continuation and identity of that relation in the defendantas his successor. In other words, the theory of plaintiff’s case is that neither Cooley nor the defendant is personally liable; that the party really liable, whose means must pay the damages claimed, if they are ever paid, is the railroad company; that by reason of its condition and the relations that Cooley sustained to it, that liability could be enforced only through Cooley while he sustained those relations; that he has ceased to sustain them, and that the defendant now sustains them in his stead; and therefore that liability can now be enforced only through this defendant.

Since the question is new and its solution perhaps not clear a fuller discussion of it would doubtless have been of service to us. Without it we are inclined to the opinion that the present receiver was rightly made defendant. Plaintiff’s right and remedy were strictly legal and the damages claimed unliquidated, making a case for trial by jury. The injury was alleged to have been committed by servants acting as such in the line and within the scope of their employment. Somebody, therefore, should be responsible as master. While in one sense they were servants of the receiver, being employed by him and subject to his direction, we apprehend that for all purposes affecting the question of responsibility, where the receiver was not personally in fault, the corporation was the master; indeed, that for such purposes the receiver was the corporation; for in such case he dearly is not personally liable. Beach on Receivers, Secs. 715, 718; Davis v. Duncan, 19 Fed. Rep. 477; Commonwealth v. Runk, 26 Pa. St. 235; Woodruff v. Jewett, 37 Hun, 205. The court that appointed him is not, and so, if the corporation is not, then there is no responsible master, though the injury was caused by the negligence of servants, for which the master would be liable.

It is not claimed that the action should have been brought against the corporation by its proper name. By its own voluntary action it had forfeited for a time its authority and power to exercise its functions and franchises, including those of suing and being sued; and these had been lawfully transferred to and vested in Cooley, as receiver. The United States Circuit Court had suspended its power to collect claims, pay debts or suffer judgments, in view of its financial condition and the interest of its creditors. It is said, however, that the action should have been brought against Cooley—not against him personally, for it is not pretended that he was so liable, but as receiver. The action could be brought only by an administrator, to be appointed after the injury had been done. That would require some time. Just when the plaintiff was so appointed we do not now remember, but when the action was brought Cooley, as receiver, was functus—no longer in existence. We understand that’’he was therefore absolutely incapable of acting or being acted upon in that character. The court which appointed him had also divested him of all property, and discharged him of all rights, powers and duties as receiver; so that in that character he was no longer subject to any order even of that court. How, then, could he be served with process, or plead, or suffer judgment, or pay an execution? If process were returned as duly served upon him and he failed to appear or to plead, would the court allow a writ of inquiry to be executed, shutting out all defense, and judgment to go for the damages so assessed, to be paid out of moneys or property of the company, of which he had no charge or control, and for which he was in no wise responsible ? Such a judgment would not be unjust to the company and its creditors, only because it would be utterly worthless, either as a warrant for any proceedings by way of execution, or as evidence of a claim. An action against him as “ late receiver” would be an action against him personally which, as has been seen, would not lie.

Then who else but the present receiver, who was such when the action was brought, could be properly made defendant? And who else should ? Who has a deeper interest or higher duty, or is better able to protect and defend the company against unjust claims, whether they originated before or during or since the administration of his predecessor? We regard the receiver as the corporation, under his name—not its agent or representative, for he is not constituted or appointed by it nor accountable to it, but for all the purposes contemplated by his appointment, the company itself. He is the agent of the court, acting under its direction, but for the stockholders, bondholders and other creditors of the company, and for the public, as the company itself previously did under the name by which it was incorporated. What is done by or to or for him, as receiver, is in legal effect done by or to or for the company. His agents and servants are the agents and servants of the company. Hence it is immaterial, so far as concerns its liability, under which of several receivers in succession a particular cause of action arose. If it binds either it binds the company, but the action upon it should be against the company, under the name of the receiver acting when suit is brought. Such practice seems to us better adapted to secure justice and fairness to all parties and interests concerned, and to involve less of incongruity than any other that has been suggested.

In respect to the merits of the case the contested questions of fact have been stated. It is admitted by counsel for plaintiff in error, that “ upon all the issues made by the pleadings, except the observance of ordinary care on the part of Molohon at the time of the accident, and the operation of the railway by Thomas M. Cooley, and the appointment of defendant as his successor, the evidence was conflicting.” This makes it unnecessary for us to review or discuss that evidence, and we do not propose to make further reference to it, except to say that on the part of the plaintiff below it was not confined, as to any of these issues, to one or two witnesses, nor was it in our judgment such in character or amount as, standing uncontradicted, would barely make a prima facie case; but, compared with what opposed, it presented such a question of preponderance as makes its determination by the jury decisive. The issues, if any, as to the appointment of Cooley and of the defendant as his successor in the receivership, have also been disposed of. Upon the only one remaining, that of due care on the part of the deceased at the time of the accident, no direct evidence was introduced or offered, because, as it appeared, no one was able from actual observation to so testify in regard to it. No one living witnessed the accident. The engine was a wild” one and backing. At the time of collision and for some little time before, the persons upon it were facing and looking the other way. They had not observed the deceased approaching the crossing, nor was anybody else near enough to see how, as to care, they made the approach and came upon the track. But it was shown that the deceased was familiar with the crossing, had frequently driven over it, and was of a careful habit. To the evidence of his habit objection was made, but overruled, and we think rightly—the Supreme Court having expressly held it to be in such case proper. C. R. I. & P. Ry. Co. v. Clark, 108 Ill. 113; Gardner v. C., R. I. & P. Ry. Co., 17 Ill. App. 262. To meet this the topography of the locality, the condition of the right of way and of the highway, and all the circumstances in evidence tending to rebut the inference as to his conduct, on the occasion in question, were before the jury, and doubtless urged for all they were worth. We see no sufficient reason for interference with their finding, and therefore no error in refusing to set aside the verdict on the evidence.

It is said the fourth instruction given on behalf of plaintiff was erroneous, because it limited the inquiry as to the exercise of ordinary care by the deceased, to the time they were killed, and to the time they were in the act of crossing the railroad track; that however negligent they may have been, in failing to look or listen for, or to heed signals of the approach of the engine, if, while attempting to cross, and at the time they attempted to cross the railroad track they were exercising ordinary care and caution, this, according to the instruction, would be sufficient. We are aware that some courts, on some occasions, have come very near to a recognition of this fineness of verbal criticism, but can not help thinking it unfortunate for the cause of justice. We do not understand that one can justly be said to be in the exercise of ordinary care in attempting, or at the moment of attempting, an act which he knows, or ought to know, is dangerous. If he did not exercise due care to ascertain whether it was dangerous to attempt it, and was injured in the attempt, then the attempt itself was careless, however careful the manner of it. Blondin doubtless exercised the utmost care in the manner of his attempt to wheel a man in a barrow on a rope over the chasm below the falls of Niagara, for- the very reason that he knew the attempt was dangerous, and succeeded; but if he had failed would anybody say that in the act, or at the time of the act, he was in the exercise of care? The jury, doubtless, understood the instruction as including what counsel insist should have been expressed. Counsel so understood it, as appears from the quotation last made from their argument, for they speak of the issue as to care by the deceased, as care “at the time of the accident.” We are unwilling to take the risk of doing injustice by recognizing any force whatever in this criticism.

It is also complained that the court refused an instruction asked by the defendant, to the effect that if the deceased failed to exercise slight diligence to discover the approach of the engine, and was killed in consequence of such failure, the plaintiff could not recover, even though the servants in charge of the engine were guilty of gross negligence. Such, no doubt, is the law, but it was given in every instruction that required the jury to find, from the evidence, as a necessary condition to a verdict for the plaintiff, that the deceased exercised ordinary care in the premises. We are much inclined to discourage a practice which tends to defeat judgments on verdicts for no better reason than that the court declined to give instructions which were but repetitions in real substance of those given, but were calculated, by a different form of expression, to convey to jurors the idea that they set forth a different principle, and one more favorable to the case of the party asking it.

Perceiving no substantial error in the record the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    Elijah C. Finney, Surviving Partner, etc., v. George F. Harding.

      Landlord and Tenant—Bent—Lien on Crops—Construction of Statute— Bona Fide Purchaser.

    A bonafide purchaser of farm crops, from a tenant, takes them subject to the lien of the landlord under the statute, for unpaid rent. The statute itself gives to such purchasers of this class of property sufficient warning to put them on inquiry
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Douglas County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Eckhart & Moore, for appellant.
    Mr. William J. Ammen, for appellee.
    The position and claim of appellee on the question presented for consideration by this court is, that the statute means just what it says, and that in all those cases where the lien given by the statute attaches at all it attaches as against the" world and remains in full, absolute and perfect effect against the world during the time limited by the statute. unless, in the meantime, the rent secured by the lien has been paid, or the landlord has, in the meantime, waived the lien or put himself in such a position that he will be estopped from asserting it.
    Under the position assumed by appellee the question of notice is wholly immaterial, except the principle that all are charged with notice of the law, and a bona fide purchaser, without actual notice of the facts of tenancy, etc., is not and can not be, in the very nature of things, in any better position, as regards the lien, than a purchaser with full notice of all the facts.
    This position and claim of appellee we think correct and sound on principle and abundantly sustained by authorities. Matthews v. Burke, 32 Tex. 419; Kennard v. Harvey, 80 Ind. 37; Davis v. Wilson, 8 S. W. Rep. 151.
   Pleasants, P. J.

Appellee, a resident of Chicago, made a lease in writing to Matthias Klein of a quarter section of land in Douglas County for one year from March 1, 1886, at a cash rent of $480, payable on or before the first day of January next following, and providing among other things that the crops should not be removed until the rent was paid. In August and December, 1886, appellant, for his firm, which then was and for some years had been engaged in the business of buying and shipping grain at Tuscola, about three miles from the demised premises, purchased of the tenant oats and corn raised on said premises, of the value of $227.16, and paid him therefor in good faith and without any actual notice that he was a tenant or that the grain had been raised on demised premises. About the first of January, 1887, Klein left the farm and the county, wholly insolvent and with $380 of the rent unpaid. Appellee brought this suit to the October term, 1887, in assumpsit on the common counts and a special count setting out the facts, to which the defendant pleaded the general issue, which was tried by the court without a jury, under a s tip;;l at ion that the form of action might be disregarded and any legal claim or defense shown. Judgment was given for the plaintiff for $227.16.

There is no disagreement about the facts, and the only question made is whether the grain mentioned was subject, in the hands of these purchasers, to the lien given by the statute, which declares that “ every landlord shall have a lien upon the crops grown or growing upon the demised premises for the rent thereof, whether the same is payable wholly or in partin money or specific articles of property, or products of the premises, or labor, and also for the faithful performance of the terms of the lease. Such lien shall continue for the period of six months after the expiration of the term for which the premises were demised.” 2 Starr & C. 1504, Sec. 31.

Although this statute, with immaterial variations, has been in force for nearly a quarter of a century, and the Supreme Court has determined the landlord’s right there under as against execution and attachment creditors of the tenant, and purchasers with actual notice of the lien, it does not appear to have done so directly, as against a purchaser for value without such notice. The Appellate Court for the second district, however, has recently held in favor of such purchaser. Howe v. Clark, 23 Ill. App. 145.

If we were at liberty to regard it as authority, that case would be decisive of this; but we are not, and an independent consideration of the question being forced upon us in the case at bar, we have been constrained, with all due regard to the opinion of that court, to differ from it. That opinion was thought to be sustained by inference from what had been held by the Supreme Court by the weight of authority in other States, and by sound reason.

The only decision in this State from which such an inference was claimed to be deducible, was that of Prettyman v. Unland, 77 Ill. 206. There the Circuit Court at the instance of the plaintiff had instructed the jury that if the defendants purchased the grain with notice of his lien they were liable, but refused another, to the effect that such notice need not be in writing, and for this refusal the judgment was reversed. It is asked why so, if no notice was necessary? We conceive a sufficient answer to be that plaintiff was not bound to risk any doubt of the sufficiency of the statute alone, as notice, and might well choose not to do so, when he thought he could clearly prove actual notice; that he did in fact put his claim on the ground of actual notice, and made his proof to correspond, but not in writing; that the instruction given was based on that theory and presentation of his case, and therefore the one refused was a material supplement, even if he might have recovered, upon a different presentation, without any proof of actual notice. Without that instruction the jury might understand, from the case as presented and the instruction given, that such proof was necessary, and, from some notion of the registry laws or other supposed reason, that the kind of proof made was insufficient, and so disallow his claim. They did for some supposed reason or without reason find for the defendant, and therein were wrong as to a considerable part of it. If the verdict had been the other way and the defendants had complained of an instruction as improperly defining notice, the Supreme Court might well have affirmed the judgment, however faulty the instruction, if they were of opinion that no actual notice was required, and if they had condemned the instruction and yet affirmed the judgment, the inference would be that such was their opinion. But a contrary inference does not seem to be warranted by the reversal under the circumstances as they appear, and that the court did not so intend or understand is probable from the fact that in the later case of Hunter v. Whitfield, 89 Ill. 229, they expressly declined to intimate an opinion upon the question. The record in the Prettyman case did not present it, directly or indirectly, but did require the ruling made. As authorities from other States, supporting their conclusion, the Appellate Court cite only the following: Nesbitt v. Bartlett, 14 Iowa, 485; Westmorland v. Wooton, 51 Miss. 825; Scaife v. Stovall, 67 Ala. 237; Webb v. Sharp, 13 Wall. 330; Fowler v. Rapley, 15 Wall. 14; Beall v. White, 94 U. S. 382.

Under the Iowa code the landlord has alien upon the crops and also upon any other personal property of the tenant which has been used on the premises during the term, and not exempt from execution,” for the period specified. As to such other property as was intended for sale in parcels from time to time and with a view to replenishment, like a stock of merchandise or live stock on a farm, the landlord might well be presumed to have assented to such sales—the mass being expected to be kept good, and so his security thereon unimpaired. In the case cited the property purchased was a cow, which “was a part of the stock of the farm intended for sale, as his course of business, governed by his interest and the market, would require;" and on the reasoning above indicated it was held, that the purchaser was protected. So the same court say; in the later case of Richardson v. Peterson, 58 Iowa, 724, in which a team of work horses, kept by the tenant for use and not for sale according to his ordinary business, was held to be subject to the landlord’s lien, although the claimant had purchased in good faith without actual notice of it; and in the still later case of Holden v. Cox, 60 Iowa, 449, that of Nesbitt v. Bartlett was expressly held to have no application to crops, and the statutory lien upon them declared paramount. In the Mississippi case the property in question consisted of two bales of cotton. The landlord, having demanded them of the purchaser and been refused, brought the suit to recover their value ; and it was held that while he had a lien upon it which entitled him to resort to the property in the manner prescribed by the statute, he had not such a right as would “entitle him to maintain trover or assumpsit against the purchaser.” The question here involved was not considered; and afterward, in Dunn v. Kelly, 57 Miss. 375, the court expressly declined to give an opinion upon it. In the Alabama case the statute is not quoted, but the court say its “ reasonable implications support their view;” and the provisions from which these implications are supposed to arise would seem to be that to the lien of the landlord is expressly given “ priority over all other debts,” but the claims of purchasers are not mentioned; that to enforce it an attachment may be levied upon the crop before the rent falls due, in case of its removal or intended removal, and upon its proceeds in case of sale. From the expression as to creditors and silence as to purchasers, it is argued that the latter were not intended to be affected by the statute, but that their case was left to the operation of the common law, and, from the other provisions referred to, that a purchase without notice was contemplated as a discharge of the property in the hands of the purchaser, and that the only guard against the danger or relief against the effect of such sale intended to he afforded by the statute, was the special right of attachment mentioned. There is no need to question the force of this argument from the code of Alabama, since none such can be drawn from that of Illinois.

The three cases cited from the Federal Reports arose under the act of Congress which gave to landlords in the District of Columbia what it designated as a “ tacit lien ” upon property on the demised premises, and provided for its enforcement, among other ways, by action against “purchasers with notice.” Neither of them involved the question here under consideration, nor do we find in either anything pertinent to it, except a dictum in the first (13 Wall. 330) to the effect that the law protects purchasers without notice against the landlord’s lien; but the context, immediately following, clearly shows that in that remark Justice Bradley had reference to articles intended for sale, sold in the ordinary course of business and thereupon removed from the demised premises— citing, most particularly, the case of Grant v. Whitwell, on which that of Nesbitt v. Bartlett, afterward explained as has been seen and held inapplicable to crops—was expressly based. But in each of the others, which also cite the same authority, the court said that a statutory lien has the force and effect of a common law lien with possession, which we understand to be valid, unless waived, as against any purchaser.

Counsel for appellant in argument here cite still other eases, which we notice as briefly as we may and be understood. Thornton v. Carver, 6 S. E. Rep. 915, appears to be subject to much the same explanation as the one from Alabama, supra. The Georgia statute expressly mentions only “all other liens, except liens for taxes,” as being postponed to that of the landlord, and makes sale by the tenant a misdemeanor, punishable by fine in double the sum the lien was given to secure, of which one-half is to go to the landlord—“thus,” as the court say, “ paying the debt.” The property in question was cotton—a staple production of the State, generally consigned to warehousemen at a distance, for sale, of whom it was bought as in the open market, without any knowledge of the producer, and passed by delivery, according to the custom of trade, “almost like bank bills.” Furthermore the court, as in the Alabama case, regarded this statutory lien as a “ secret lien,” existing “ in the breast of the landlord only.” And so, upon supposed implication from the provisions and language of the act, and upon grounds of public policy and common law principles, the purchaser without notice was held to be protected against it. Haifley v. Haynes, 37 Mich. 535, involved the construction of an act which gave to laborers employed in getting out lumber, a lien for their services, paramount to all other claims upon the property, but further declaring that it should cease to exist after the expiration of thirty days from the completion or last day of their service, if within that time no statement or petition was filed, and at the end of three months from such filing, unless meanwhile a suit to enforce it was commenced, for the reason that the laborer was protected, first, by possession, and second, by his right under the act to file his statement or petition immediately upon the completion of his service, without waiting thirty days or any other time. The court held that, if he surrendered the possession to his employer, and neglected to file his statement or petition until the property was sold, after such completion, though within the thirty days, the purchaser would hold it discharged of the lien. “He may infer that no lien is insisted on.” However it may have been in law, it seems this decision was in fact a misinterpretation of the mind of the legislature; for at their next session after its promulgation they removed all doubt by an amendment declaring that no sale of the property during the time allowed for filing the statement or petition, and previous to the filing thereof, should in any way affect the lien; and clearly it is not at all pertinent here.

Smith v. The Shell Lake Lumber Co., 68 Wis. 89, was under a statute precisely like that of Michigan before the amendment, and followed the ease last mentioned—one of the justices strongly dissenting. Alexander v. Mahon, 11 Johns. 185, and Renssalaer v. Quackenboss, 17 Wend. 34, were contests between execution liens and that of the landlord, under an act stated by the court in the first to be almost an exact transcript of the statute of 8th Anne, Chap. 14, which is not in force here. Herron v. Gill, 112 Ill. 247. The question before this court was not involved nor referred to; and if it could be claimed that the construction there put upon that statute shall have any bearing upon it, from analogy, the answer would be that our own Supreme Court has repeatedly held directly, that under our statute the landlord’s lien has preference over executions, and no notice thereof in such case is required. So, also, of Craddock v. Riddlesbarger, 2 Dana, 205. The above, we believe, are all the authorities from other States relied on by appellant, and for the reasons indicated they seem to us to give but little if any support to his contention.

Counsel for appellee has cited a very much larger number as being to the contrary. And while, as to many of them, their force in application here may be more or less abated by like considerations, we think the decided weight of authority is on that side. In Iowa, Indiana, Texas and Tennessee, particularly, the statutes appear to be most nearly like ours, and in each of those States, upon the direct question between the landlord and the purchaser without actual notice, the lien has been sustained. The Iowa cases have already been cited. Kennard v. Harvey, 80 Ind. 37; Mathews v. Burke, 32 Tex. 419; Davis v. Wilson, 8 S. W. Rep. (Tenn.) 151. For others referred to see Gear on Landlord and Tenant, Chap. 19, Sec. 141-7 and notes. We understand that the common law favored executions, giving them precedence over all debts that were not specific liens, and innocent purchasers as against secret liens, and that it gave the landlord no specific lien for rent, but only a right to distrain personal property on the demised premises. Yet the legislature had power to give it, absolutely, or with such qualification as it should think proper. When its will on the subject is duly and plainly declared the courts are to give it effect according to the intention thus made known, and without regard to the common law in relation to it or to the wisdom or policy of the enactment.

It has not been contended that our statute contains a word or phrase of doubtful or obscure meaning, or any that suggests or leaves open a question as to the extent of its application. All agree that a “lien” is a charge upon and right to resort to the thing on which it operates, as a means of satisfying the claim it is given to secure. This is the right which the legislature has in terms declared to be given to every landlord, for rent of all kinds and however payable, upon all crops growing or grown on the demised premises, and to continue for six months after the expiration of the term. It excepts from its operation during that period no landlord, no rent, no crops so growing or grown, no adverse claim or interest. It is true that this lien is not expressly declared to be valid asvagainst a honafide purchaser without notice of it. But it is also not so declared as against execution, attachment or any other existing creditors of the tenant; and yet its superiority to their claims is beyond doubt. Thompson v. Mead, 67 Ill. 395; Mead v. Thompson, 78 Ill. 62; Hunter v. Whitfield, 89 Ill. 229; Wetsel v. Mayers, 91 Ill. 497. In neither of these cases is any reason given for the superiority, except that briefly stated in 67 Ill., that “the law creates the lien, and from its very nature, and under the statute, it must have precedence,” which applies with equal force to the case of the purchaser. Yet we are asked to go outside of the statute, not to find any needed explanation of its terms or ascertain its real intention, but to see from the common law, the legislation of other States, and the effect on trade in agricultural products, that he ought to be excepted. This would be no construction, but judicial legislation. These considerations afford no ground for a presumption that our legislature overlooked and so excepted the claim of the purchaser, though it considered and postponed credits that might be given expressly upon the faith of crops to be made, for seed, team, implements or labor required to make them ; that it meant what it did not say and did not mean what it did say. If the purchaser within the lien period may, for want of actual notice, hold the property, then the landlord may, without payment and without his consent, fault or neglect, cease to have the right which the statute said should continue. For it indicates no means by which such notice may be given, and without such indication the landlord can not use or devise any that would certainly be effectual, since he can not know who will be the purchaser. And what further notice than that given by the statute itself should be required? “It is the com mom doctrine,” say the court, in Watt v. Scofield, 76 Ill. 264, speaking on the subject, “ that what is sufficient to put a purchaser upon an inquiry is good notice of whatever the inquiry would have disclosed,” and hold that a purchaser of corn, knowing it was raised on demised premises, but having no actual notice that the rent was unpaid, was not a bona fide purchaser and took it subject to the lien. So in Mathews v. Burke, supra, the Supreme Court of Texas, extending this reasoning, said of their statute, which gave the lien until the first day of January next after the maturity of the crop, that it “bade all purchasers of cotton to beware how they purchase until that time.” Ours, also, notifies everybody that a certain species of property, easily recognized, is subject to a certain lien for a limited time, if only it is raised on demised land; and where the purchaser does not know to the contrary or has no satisfactory assurance thereof, how can he fail to apprehend that it may have been so raised, and thus be put upon inquiry? The kind of property offered him would naturally call to mind the caution of the statute in relation to it. This is a marked distinction between such a lien and one created by mere agreement of the parties—a distinction recognized by the court as affecting this question of notice in Prettyman v. Unland, 77 Ill., on p. 211. In this respect also we perceive a strict analogy to the liens of mechanics and material men, which make the decisions in relation to them pertinent and forcible, if not conclusive, here. For no other reason than that they are given by a public law, designating generally the kind of property made subject to them, these decisions have uniformly enforced them as against purchasers without actual notice of them. Thus in Clarke v. Moore, 64 Ill. 279, it was declared that, “ under the law it is the duty of those purchasing or taking liens on the property to ascertain, as best they may, whether it is incumbered with mechanics’ liens, and they purchase it subject to such liens.” And speaking of the landlord’s lien (as against execution and attachment creditors, no case against a purchaser without notice having yet arisen) the court said : “ The law creates the lien, and from its very nature and under the statute must have precedence, unless it has been waived or the landlord has been guilty of laches,” and again declared it to be “a permanent lien, of which every person must take notice, and can be lost only by waiver and failing to enforce it at the proper time.” Thompson v. Mead, 67 Ill. 395. These declarations were reiterated in Mead v. Thompson, 78 Ill. 63, Hunter v. Whitfield, 89 Ill. 229, also Wetsel v. Mayers, 91 Ill. 499, and must therefore be accepted as the deliberate and settled opinion of that court. If there be any solid ground of distinction between the lien of the mechanic and that of the landlord we do not perceive it.

It is true that in Clarke v. Moore, supra, Mr. Justice Walker said of mechanics’ liens, that they were secret;" but with all deference we think the expression was .not called for nor well considered. They have the force and effect of common law liens, with possession, which is not secret. They are created by statute and the statute is not secret. In the case of Richardson v. Peterson, 58 Iowa, 724, the court said: “ The vendor of the personal property transfers the title and interest he holds therein, subject to the liens recognized by the law” (by which we understand is meant the statute). This rule prevails in all cases except those wherein a purchaser without notice is protected by statute, as under the registry laws. If a statute creating a lien provides for no protection in favor of persons having no notice thereof, property subject thereto cannot be transferred free from the lien, on the ground that the purchaser had no notice of its existence. Unless .these principles be recognized the lien conferred by the statute above quoted would' fail to give protection to the landlord. ”

We think our statute was intended to give real security to the landlord for his rent—-to the landlord living at a distance from the demised premises (as in this case) no less than to one near by; that his principal peril was from lien creditors of the tenant and purchasers without notice, since he could protect himself as against the tenant and trespassers and purchasers with notice; that of itself it gave to all such creditors and purchasers a warning sufficient to put them on inquiry; that as to such creditors its efficiency has been authoritatively determined; and that to allow the lien to be defeated by such a purchase would make it substantially nugatory at a point where it most needed to be of force.

Appellant’s firm, then, having taken the grain subject to appellee’s lien and so disposed of it as to prevent his resort to it, should answer to him in some form of action for the injury thus done. In Holden v. Cox, 60 Iowa, 449, it was held that “whoever consumes or destroys personal property, upon which another has a lien, becomes liable to the lien holder in damages.”

It does not distinctly appear that they converted this grain into money, though it might be so presumed from the fact shown, that their business was buying, shipping and selling grain. In that case we see no objection in principle to assumpsit for money had and received to appellee’s use, as a remedy; nor, if otherwise, to an action on the case. The judgment is affirmed.

Judgment affirmed.


author: Conger, J.

text:
    William A. Young v. James W. Young.

      Set-off—Assigned Judgment.

    A defendant can set off a judgment obtained by a third party .against the plaintiff and assigned to the defendant before suit brought.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. J. B. Mann and William A. Young, in person, for appellant.
    Mr. W. R. Lawrence, for appellee.
   Conger, J.

The principal question presented by this record is, can a defendant, when sued, set off a judgment obtained by a third person against the plaintiff and assigned to the defendant, before suit is brought.

We think the doctrine is well settled that he can do so. Waterman on Set-off, 193, 365; Ford v. Stewart, 19 Johns. 343; Wright v. Cobleigh, 3 Fost. (N. H.) 32; Wilson v. Reeves, 4 Sneed (Tenn.), 173.

The Circuit Court refused to permit this to be done, which we think was error, for which the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Wall, J.

text:
    A. J. Welch v. Josephus Miller.

      Replevin—Instructions—Evidence.

    1. In an action of replevin this court declines to consider alleged errors of the court below, it not appearing that injury resulted therefrom.
    2. The use of the word “ testimony ” instead of “evidence,” in an Instruction to the jury, is not error.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.

      Messrs. John T. Lillard and E. E. Donnelly, for plaintiff in error.
    Messrs. Robert B. Porter and W. E. Gapen, for defendant in error.
   Wall, J.

This was replevin before a justice of the peace for twenty-one head of sheep brought by defendant in error against plaintiff in error. Defendant in error recovered before the justice, and plaintiff in error appealed to the Circuit Court, where he was again defeated. By writ of error the case is brought here. It is urged by counsel for plaintiff in error that the case is very close on the evidence and therefore it was quite important there should have been entire accuracy in the rulings of the court and in the instructions. The main question was as to the identity of the sheep, and while there was some conflict the issue was one which a jury is eminently qualified to try, and we are not impressed with the view that their conclusion was wrong, or even that it was of doubtful propriety.

The first objection is that the court permitted a witness to testify over the objection of plaintiff in error that it is possible for a man to recognize sheep by their countenance. It is urged by .counsel that whether this is so, or to what extent it is so, is a matter of general information as to which a witness should not be permitted to speak. The court by an instruction advised the jury that whether sheep could be so recognized is a question of fact for the jury to determine, and in arriving at a conclusion the jury might consider their own and the ordinary experience of mankind.

We hardly deem it necessary to determine whether, by this instruction, the court wholly corrected the supposed error in admitting the evidence complained of. It is probably within the experience of every man, at all familiar with domestic animals, that there is in their countenance a means of identification, to at least a limited extent—stronger in some instances than others, and we can not see how this case was prejudiced by admitting proof of such a fact. The jury probably knew as much about that matter as any witness, and probably relied upon their own experience in weighing the testimony of those witnesses who professed to recognize the sheep by their countenance and general appearance. Ho substantial harm was done by the evidence thus objected to, nor can we suppose as urged by counsel that the instruction referred to was calculated to mislead the jury by giving undue prominence to the point, or otherwise.

It is also insisted the second instruction was erroneous in telling the jury they should find for plaintiff if he produced a preponderance of the testimony instead of the evidence. This objection is hypercritical. We can not presume a jury would regard the word evidence as having a different signification from that of testimony. Testimony and evidence are often used interchangeably—as though they were synonymous, though in their primary sense they are not. There is nothing in this point. It is also urged that the third instruction is erroneous in saying that, “ it is immaterial how plaintiff knows the sheep, if they in fact belong to him.” This was of course not very pertinent or helpful, but it can not be considered of sufficient importance to produce a reversal.

Ho other points are made. We find no error and the judgment will be affirmed.

Judgment affirmed.


text:
    City of Danville v. Margaret Makemson.

      Municipal Corporations—Defective Highway—Personal Injury—Negligence of City—Accident and Negligence Concurring—Estoppel.

    1. The erection by a city of an embankment in a highway fourteen feet high and thirty feet wide, a street car track with rails three inches high running just to one side of the center line thereof, constitutes negligence.

      2. The use of a young and inexperienced horse does not necessarily constitute negligence.
    3. The fact that the city has other streets, perfectly safe, which the plaintiff might have used, can not be urged in defense to an action for the recovery of damages for an accident due to its negligence.

      4. Where a person, in the exercise of due care, is injured by the combined result of accident and negligence of a city, and the injury would not have occurred but for such negligence, the city will be liable.
    [Opinion filed November 23, 1889.]
    Appeal from Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.
    Mr. George G. Mabin, for appellant.
    Mr. W. R. Lawrence, for appellee.
   Wall, J.

The appellant was impleaded by the appellee in an action on the ease to recover damages sustained by reason of the defective condition of a certain street, known as Williams street, within said city.

Plea, not guilty; trial by jury and verdict for plaintiff for 8900, upon which, a motion for new trial having been overruled, judgment was rendered by the Circuit Court.

The only point made by the brief of appellant is that the evidence does not support the verdict. It appears that the street in question is a public and common thoroughfare in the city of Danville; that the ground being naturally quite low at the point where the injury occurred, the city had constructed an embankment in the center of the street about fourteen feet high and about thirty feet wide at the top. South of the center line of this embankment a street ear track was laid with iron rails projecting three inches above the surface. North of this track the space was fifteen feet wide. There was no guard or railing of any kind on either edge of this embankment. The plaintiff, with her husband, drove into the city in a two-liorse wagon and passed onto this street. Presently one of the horses shied at a child’s carriage, which was being pushed along the sidewalk, and the wagon in which plaintiff was riding was overturned and thrown 'to the foot of the embankment, whereby the plaintiff was seriously injured. The negligence alleged is in not providing a guard or railing along the edge of the embankment. There is considerable evidence in the record as to the safety of the street as it was constructed, but we are not inclined to disagree with the conclusion of the jury that it was not reasonably safe. Nor is there any sufficient ground for the contention that the team was not properly managed, or that there was negligence in using one of the horses, which was young and somewhat unbroken. City of Joliet v. Verley, 35 Ill. 65.

It is also urged that the city had other streets which were perfectly safe and upon which the plaintiff might have entered the city. This street was devoted to public use, and under the circumstances and for reasons given by the witnesses it was the most convenient and accessible for the plaintiff. The city can not be beard to make the objection. The chief reliance of appellant seems to be in the position that the injury was due neither to negligence of plaintiff or defendant, but to the mere accidental circumstance that, from the cause named, the team took a sudden fright with the result stated.

It is the well settled rule in this State that if a person, while observing due care, be injured by the combined result of an accident and the negligence of a city, and the injury would not have been sustained but for such negligence, yet, although the accident be the primary cause of the injury, if it was one which common prudence and sagacity could not have foreseen or provided against, the negligent city will be liable for the injury. City of Joliet v. Verley, 35 Ill. 58; City of Bloomington v. Bay, 42 Ill. 503; City of Lacon v. Pace, 48 Ill. 500; Village of Carterville v. Cook, opinion recently filed at Mt. Vernon, unreported.

As already intimated we are of opinion the evidence sufficiently tended to show a want of proper care on the part of the city in permitting the street to remain at the point in question without protection, and it is also quite evident that the accidental fright of the team was not to be foreseen or guarded against in the exercise of such care as is ordinarily required of those who use the streets of a city. The instructions, to which no objection is urged, very fully and properly advised the jury as to the law applicable in the ease. The injury sustained by the plaintiff was quite serious and the amount allowed by the jury was entirely within reason.

Upon the whole we are of opinion that justice has been done and the judgment will be affirmed.

Judgment affirmed.


text:
    Thomas Brewer v. O. H. Gobble.

      Gaming—Contracts Void for Illegality—Wager—Payment before Decision—Action against Stakeholder.

    A stakeholder who, before the wager is or can be decided, pays the money over to one of the parties, makes himself liable to the other party for the amount of his deposit.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Sangamon County ; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmers & Shutt, for appellant.
    Messrs. T. S. Casey and C. A. Keyes, for appellee.
   Conger, J.

February 23, 1887, one Thomas Dolan and appellee Gobble made a wager, the terms of which were reduced to writing, as follows:

“ Springfield, Ill., February 23, 1887.
Agreement entered into between H. Gobble and T. Dolan :
We the undersigned hereby wager $500 that J. M. Garland is not the next mayor of Springfield, T. Dolan taking the affirmative, and we hereby put up $40, respectively, that if the money is not covered by 5 p. m., February 24, 1887, the defaulting party loses this forfeit. We hereby respectively agree that Tom Brewer is appointed holder of forfeit and final stake.
(Signed) Thomas Dolan, O. H. Gobble.
Witness: Neil Cullom.
Attest: A. J. Marks.
Witness for all: H. Williams.”

The money was placed in the hands of appellant as stakeholder by the respective parties. The election for mayor of Springfield was held more than a month thereafter and resulted in the defeat of Mr. Garland.

About two weeks after this wager was made and before the election was held which was to decide it, without any demand from Dolan, appellant paid him the money, seeking afterward to justify such conduct by telling appellee that he and others went to the council chamber and saw Garland, who was then mayor, sitting there as such, and that made him the next mayor.

If the law recognizes or requires any honesty whatever on the part of a stakeholder in dealing with the money placed in his hands by those entering into a wager, then the conduct of appellant was grossly dishonest. While the act of those enter, ing into the wager was illegal, the act of appiellant in receiving the money and agreeing to pay it to the winner was not.

As said by Shaw, G. J., in Ball v. Gilbert, 12 Metcalf, 897:

“We think it clear that in no proper'sense can the stakeholder be regarded as a party to the illegal contract, or in pari delictu. He is a mere depositary of both parties, respectively, with a naked authority to deliver it over on the proposed contingency. If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor.!’

When appellee placed his $500 in the hands of appellant with directions to pay it to Dolan upon the happening of a certain contingency only, and appellant, before the contingency happened and in direct violation of the duty imposed upon him to act in good faith toward appellee, gave the money to Dolan, we think he became liable to appellee.

Appellee had a right at any time before the happening of the contingency which was to decide the wager, to revoke such wager and withdraw his deposit.

It is true that if the stakeholder pays the money over to the winning party before demand made upon him, or notice from the parties that the wager i¿ revoked, it will be a protection, but we understand the cases that hold this doctrine to imply that such payment is honestly made by the stakeholder in accordance with the decision of the wager after the contingency has happened upon which it depends.

We have been referred to no case that decides this exact point, for in none of them was there a payment by the stakeholder to one of the parties before the wager could be determined; but it seems to us that the plainest principles of justice support it. If a stakeholder, before a wager is or can be decided, can pay the money over to one of the parties not entitled to it, and thereby defend himself from a suit for the recovery by the other of the amount deposited with him by such other, we see no reason why he may not pay it to a stranger or keep it himself with impunity. The contract between the parties to the wager is illegal and neither can enforce it, but the contract of each with the stakeholder is such as is implied by law when one deposits money with another, i. e., that he will pay it out according to the directions given, or return it to the depositors; and such contract is legal and can be enforced.

We see no serious error in the instruction complained of, and believing that justice has been done, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Ezra M. Prince v. Sarah P. Dulin et al.

      Replevin—Stipulation to Submit Case to County Judge—Judgment Thereunder—Right of Appeal—Damages on Affirmance of Judgment for Plaintiff.

    1. A judgment in favor of the plaintiff in an action of replevin having been affirmed by this court, a stipulation was Sled in the court below to waive order of affirmance, reinstate the case and submit it to the judge of the court: Held, that an appeal would lie from the judgment entered upon trial under the stipulation.
    2. It having been determined in a chancery proceeding between the same parties that a note and chattel mortgage had been given by appellees to appellant to secure the performance of an original agreement between the parties, and that appellees had not complied with their part of it, this court holds that appellant was entitled to hold the property covered by the mortgage, or so much thereof as would cover the costs and expenses occasioned by appellees’ failure to comply with their contract.
    [Opinion filed November 23, 1889.]
    Appeal from the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding.
    Messrs. E. M. Prince, pro se: and F. R. Henderson, for appellant.
    Messrs. Tipton & Beaver, for appellees.
   Conger, J.

This case was before us at the May term, 1888, and in the opinion filed November 23, 1888, will be found a statement of the facts.

Upon the filing of the order of affirmance in the court below, the following stipulation was filed:

State of Illinois, McLean County. ss. County Court, December term, 1888.

Ezra M. Prince vs. Sarah Dulin et al. In Replevin.

This cause having been affirmed by the Appellate Court, order of affirmance is hereby waived and this cause is reinstated on the docket of this court, and it is hereby agreed that the judge of this court shall summarily, without the intervention of a jury, hear such evidence as either party may desire to introduce, and determine the amount of damages, if any, that the plaintiff is entitled to recover of the defendants, and said court shall enter all orders and judgments, and all orders as may be necessary or proper to adjust the rights of the parties in the premises.

Ezra M. Prince, Tipton & Beaver,

Attorneys for Dulins.

Under this stipulation a trial was had, evidence heard, and the .court entered a judgment in favor of appellant for $20.

A motion is made to dismiss the appeal because, as it is alleged, the proceeding in this case was .not a suit upon which an appeal would lie. We think the appeal would lie, and the motion will therefore be overruled.

We think the court erred in refusing appellant leave to show as damages all such costs and expenses as were occasioned by appellees failing to comply with their contract. In the chancery proceedings between these parties it was found by the court that the chattel mortgage in question and the note it secured for $500 were to secure the performance of the original agreement entered into between the parties • hereto, and that appellees had not complied with their portion of it; hence appellant is entitled to hold the property covered by the chattel mortgage or the money substituted for the property, or so much thereof as will cover the costs and expenses to appellant occasioned by the failure of appellees to comply with their contract.

The judgment of the County Court will be reversed and' the cause remanded. Reversed and remanded.


text:
    Vinton E. Howell, for use, etc., v. Osborne Barnard et al.

      Replevin—Fixtures—Real Estate Mortgage—Chatted Mortgage— Foreclosure—Dismissal of Suit—Action on Bond—Evidence.

    1. In an action on a replevin bond, given by a party who sought to reclaim as fixtures covered by a real estate mortgage, certain property which had been taken on foreclosure of a chattel mortgage, the replevin suit having been dismissed and writ of retorno awarded, it is held: That a verdict for one cent damages was wrong, a portion of the property in controversy being clearly personal property.
    2. In the case presented it is held: That the plaintiff in the replevin suit and defendant in the action on the bond, was not estopped by the allegation in his affidavit for writ of replevin that the property was personal property, from showing in mitigation of damages, that the property was actually real and therefore not covered by the chattel mortgage.
    [Opinion filed November 23, 1889.]
    In error to the County Court of McLean County; the Hon. C. A. Myers, Judge, presiding.
    In 1883, Jesse Bowen, being the owner of a brickyard west of the city of Bloomington, gave a real estate mortgage thereon to one Abbott. Abbott thereafter assigned the mortgage to Osborne Barnard, one of the defendants in error. The facts of the case further appear in the opinion.
    Messrs. Kerrick, Lucas & Spencer, for plaintiff in error.
    Mr. John Stapleton, for defendants in error.
   Conger, J.

One Jesse Bowen was the owner of a piece of ground on which there was a brickyard, and as a part of the fixtures of the brickyard there were “one Aldrich windmill, tower force pump, and about 700 feet of pipe, water tank, loose lumber on brickyard, water elevator, pit covers and pit lumber, etc., etc., said property on the brickyard of Jesse Bowen, and of the value of $100.”

While that property was so in possession of Jesse Bowen he made a chattel mortgage on it to Warren Milner to secure the payment of $164.82. The mortgage was properly executed and recorded. At the maturity of the mortgage the debt was not paid, and the mortgage was placed in the hands of J. K. Noble to foreclose. Mr. Noble took possession of all the property and left it with a custodian and then suit in replevin was brought by Mr. Barnard for the same property. The affidavit for replevin says, “that said goods and chattels are now in the possession of James K. Noble,” etc. The deputy sheriff to whom the writ was delivered went with Mr. Barnard to the brickyard, and the property was shown to them, and Mr. Barnard said to the deputy: “I will receive it (the property) just as it is here. ” Barnard dismissed that suit and a writ of retorno was awarded, but the property was retained by Barnard, and thereupon suit was brought by the sheriff for the use of Warren Milner on the replevin bond.

To the decoration the defendants filed several pleas: 1. Property in Barnard. 2. That the goods, etc., were returned. 3. “Because they say that the said supposed goods and chattels in the said writ of replevin mentioned were, in reality, certain fixtures to certain real estate, and that said fixtures were not taken in pursuance of said writ or replevin, and that the possession was not changed.”

The jury returned a verdict of one cent for the plaintiff? who made a motion for a new trial, which was overruled, and this writ of error sued out.

The judgment in this case must be reversed, because the loose lumber used about the yard and worth, as estimated by the witnesses, from $10 to $75, was unquestionably personal property and plaintiff should have recovered its value.

As to the other property we think the fact that Barnard had called it personal property in his affidavit for the writ of replevin, should not estop him when sued on his bond from showing that it was fixtures, and not personal property. Having sued in replevin he should be held to pay the costs and all the damages accruing from such suit. But if he can show that the property is not plaintiff’s, because from its nature it could not be covered by a chattel mortgage, he ought, in mitigat'on of damages when sued upon his bond, to be permitted to do so.

Even though proof going to show such property to be fixtures may tend indirectly to contradict the recitals in his replevin bond, still, to give effect to the 26th section of the chapter on replevin, and to avail himself of the rights given by that section, he should be allowed to do so.

We do not desire to express any opinion as to whether the other property in question was part of the realty or personalty. This is a question of fact to be determined by the jury upon another trial under proper instructions.

The judgment of the County Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    David Elmore v. Drainage Commissioners.

      Drainage—Injury to Lands—Flowage—Negligence—Ditches—Insufficiency of—Quasi Corporations.

    A drainage district, organized under the law in force in 1879. is a quasi corporation and not liable for the negligent acts of the commissioners, although they result in damage to private property.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Mason County; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Beach & Hodnett, for appellant.

      The drainage district is liable for overflowing the plaintiff’s land as charged in the declaration. Nevins v. City of Peoria, 41 Ill. 502; Jacksonville v. Lambert, 62 Ill. 519; Aurora v. Gillett, 56 Ill. 132; City of Pekin v. Brereton, 67 Ill. 477; Aurora v. Love, 93 Ill. 521; Seibert v. City of Brooklyn, 10 N. J. 136; City of Elgin v. Hoag, 25 Ill. App. 650; Pye v. City of Mankato, 36 Minn. 373; Wharton on Neg., Sec. 934.
    Defendant corporation having authority by law to construct drains and ditches, the damages to be paid for by assessment under special proceedings is liable for negligence in the prosecution of such work, to persons damaged thereby. Wharton on Negligence, Sec. 262; Gould on Waters, Sec. 261; Child v. Boston, 4 Allen (Mass.), 41; Emery v. Lowell, 104 Mass. 13; S. C., 109 Mass. 197; Daily v. New York, 3 Hill, 531; 3 Denio, 433; Ashley v. Port Huron, 35 Mich. 296.
    The defendant corporation having been organized for the benefit of the land owners of the district by petition, which called it into existence, is therefore liable under the rule laid down in Town of Waltham v. Kemper, 55 Ill. 346, and cases there cited.
    Mr. T. N. Mehan, for appellee.
    The appellees are not liable for such damages as are claimed in the declaration in this case, being a quasi corporation. Dillon’s Mun. Corporations, Sec. 762; Angell & Ames on Corporations, Sec. 629; Hill v. Boston, 112 Mass. 344; Riddle v. Prop’rs of Locks and Canals, 7 Mass. 169; Cooney v. Town of Hartland, 95 Ill. 516; Hedges v. Co. of Madison, 1 Gilm. 567; Waltham v. Kemper, 55 Ill. 346; Cooley’s Constitutional Lim., page 247; Trustees v. Schroeder, 58 Ill. 353; Hollenbeck v. Winnebago Co., 95 Ill. 148; Symonds v. Clay County, 71 Ill. 355; Addison on Torts, page 1298.
    No judgment can be rendered against the defendant corporation, because it has no funds out of which such judgment can be made. Hedges v. Madison Co., 1 Gilm. 567; Hollenbeck v. Winnebago Co., 95 Ill. 567; Commissioners v. Kelsey, 120 Ill. 482; Bartlett v. Crozier, 17 Johns. 446.
    The defendants are a “ body politic ” as well as a “ body corporate” by the State. Drainage Law, Sec. 75, Hurd’s Statute, 1887; Drainage Law, Sec. 1, Statute 1885.
    Appellees are not liable under the law of respondeat superior, or the law governing master and servant or principal and agent. Dillon, Mun. Cor., Secs. 772, 773; Trustees v. Schroeder, 58 Ill. 353.
   Conger, J.

The defendant corporation was organized under the statute in force July 1, 1879, providing for the organization of drainage districts, and to provide for the construction, maintenance and repair of drains and ditches, by special assessments on the property benefited thereby in the town of Mason City, Mason county, Illinois, the commissioners of highways being the drainage commissioners of said district. Appellant, while not a signer of the petition for the formation of the drainage district, is the owner of lands included in said district, and was assessed $800 for draining said lands; after the payment by him of such assessment, the defendant, without his knowledge or consent, enlarged the boundaries of said district by taking in a large area of territory, including the greater part of the city of Mason City, which territory had a natural drainage for the water falling thereon in a direction opposite to the lands of appellant; and defendant, by a system of drainage, collected the water falling on said area, and discharged all the water into the ditches on the lands of appellant, which were too small to carry off the water without enlarging the same, and also performed the work so carelessly and negligently as to overflow and submerge appellant’s land with the water from the territory so added to the district, and precipitated upon his lands. He thereby lost the crops planted thereon, and the use of the lands; and having called the attention of the commissioners to the condition of his lands without avail, brought his action in case against the corporation. The declaration contained three counts, charging substantially the above facts and negligence on the part of the drainage commissioners in the construction of the drains, and in connecting the drains and ditches of the added territory with the drains running through plaintiff’s land, and negligence in failing to enlarge and give sufficient fall to the drains on appellant’s lands, so as to carry off, without damage, the increased volume of water so discharged therein. A general demurrer was interposed to the declaration, and sustained on the ground that the corporation is not liable in an action for damages, and judgment rendered against appellant for costs, from which judgment he prosecutes his appeal to this court, alleging as error the sustaining by the court below of the demurrer to his said declaration.

We are inclined to think the demurrer was properly sustained for the reason there was no liabil ity on the part of the defendant. We see no good reason for holding that a drainage district organized under the statute is not a quasi corporation governed by the same principles, in reference to being liable to such damages as are claimed in the declaration in this case, as counties, townships, school and road districts, as laid down in Town of Waltham v. Kemper, 55 Ill. 346. In that case it is said: “In the case of these quasi corporations, made so without their consent, duties may be imposed, and their performance compelled under penalties, but the corporators, who are made such nolens miens, are not and can not be considered in the light of persons who have voluntarily and for a consideration assumed obligations, so as to owe a duty to every person interested in the performance.”

It is strongly insisted by appellant that in the formation of a drainage district under the statute, there is such a similarity in principle to cases where the inhabitants of cities and villages voluntarily seek and assume corporate powers, that the liability to actions like the present should be governed by the same rules.

A drainage district is formed under general laws. It is true the initiative movement is by individuals hoping to obtain some personal benefit from the formation of the district, but its officers are designated by law, not elected by the inhabitants of the district nor in any way responsible to them for their conduct, and hence, we think, there is no good reason for holding the district liable for the tortious and illegal acts of the commissioners.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    The Metropolitan National Bank v. James W. Race.

      Negotiable Instruments—Note — Guaranty — Defenses — Banks—Payment of Cheeks Irregularly Signed—Credit Therefor.

    The guarantor of a promissory note given to a bank can not defend in an action against him on the same by the bank, on the ground that the maker, a corporation which had been a depositor of plaintiff, had funds in the bank sufficient to pay the note, where the only basis for such claim is that the bank had credited itself with certain checks, paid by it, but which were irregularly signed, the same having been made and used by the officers of the corporation in its business and for its benefit, and where some months bad elapsed since the payment of the checks (the bank book of the depositor having been several times balanced) and the bank had received no notice of dissatisfaction until the bringing of suit.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Smith & Pence, for appellant.
    Messrs. George W. Plummer and I. D. Walker, for appellee.
   Wall, J.

This was an action of assumpsit by the appellant against the appellee upon a guarantee of a promissory note as follows:

“ $3,500. Chicago, Sept. 1, 1887.
“Ninety days after date we promise to pay to the order of ourselves thirty-five hundred dollars at Metropolitan National Bank. Value received.
“Race, Porter & Company,
“By L. L. Race, Treas.
“Pay to the Metropolitan National Bank.
“ Race, Porter & Co.
“By L. L. Race, Treas.
“ We hereby guarantee the payment of the within note.
“Signed: J. W. Bags,
“Charles H. Potter.
“One thousand dollars hereon, Dec. 5, 1887.”

Race, Porter & Company was a corporation of which the stockholders were James W. Race (appellee), Lewis L. Race, T. D. Porter, Wm. L. Johnson and Charles H. Potter. Appellee was the president, T. D. Porter, vice-president and manager, Lewis L. Race was secretary and William L. Johnson was treasurer.

This organization continued up to May 19, 1887, when Porter and Johnson resigned their respective positions and Lewis L. Race was made treasurer. The defense to the action is based upon the theory that the appellant, holder of the note, had in its hands money belonging to Race, Porter & Co. as a depositor, sufficient to pay the balance due upon the note, and this theory is based upon the proposition that the bank had improperly paid certain checks and charged the amount thereof to Race, Porter & Company. It appears that when Race, Porter & Company opened its account with the bank, it gave instructions to pay no checks unless signed by Johnson as treasurer and countersigned by Lewis L. Race as secretary, and that this was pursuant to a by-law of the corporation which required all checks to be so drawn. The appellee, James W. Race, lived at Decatur and spent but a small part of his time in Chicago, where the corporation of Race, Porter & Company carried on business.

Seven checks signed by Johnson as treasurer and countersigned by Porter were drawn between May 14th and 17th, 1887, amounting in the aggregate to $2,742.83. They were drawn while L. L. Race, the secretary, was absent from the city, and were paid by the appellant bank, but not until after certain representations had been made to the cashier, which satisfied him of the propriety of paying them although they were not countersigned by the secretary. The note in suit was given in renewal of a former note for the same amount} being for money loaned by the bank to Race, Porter & Company. The pass book was written up the 20th of May, 15th of June, 8th of August and 13th of September, at which times all checks were returned. On the 5th of December $1,000 was paid on the note and it seems that about or not long before that date, the corporation retired from business and the books and papers of the concern were sent to the appellee at Decatur, where he was engaged in mercantile business in his own name.

Although the disputed checks had been in the hands of Race, Porter & Co. from the 20th of May, appellee claims that the fact of their being drawn irregularly, without the signature of Lewis L. Race, the secretary, was not known by him until some time in December, when the discovery was made by his bookkeeper. He also testified that the corporation got no benefit from these chocks. On the contrary, it appears very clearly as to the checks payable to Newell Bros. Mfg. Co. and Leroy Paine, the indebtedness of the corporation was discharged to the amount of $1,030.33. The same is true also as to the check for $62.50 payable to currency, which was for the salary of one of the officers of the corporation.

It appears quite satisfactorily that another check of $850, which was the first of the deposited ones, was fully covered by the check of Chin & Co. for $750 and cash $100, so that the corporation lost nothing thereby, the transaction being merely an accommodation to Chin & Co. The remaining three checks for $500, $100 and $200, respectively, were payable to “ Currency ” and according to the testimony of Johnson, and of Preston, the cashier, they were also accommodation or " swap ” checks for the benefit of Chin & Co. and were covered by the check of Chin & Co., so that as to these the corporation lost nothing.

Although the appellee swore as already stated that as to these disputed checks the corporation got nothing, yet he was evidently giving his opinion merely, and according to the record he was in error as to this. It appears from Johnson’s evidence that when he left the corporation the books were balanced and his account as cashier was found correct. This is not disputed, and although the cash books of the corporation are copied into the record, our attention is not called to anything tending to disprove his statement in this respect. The stubs of these checks are not produced nor does it appear from any reference to or analysis of the bank accounts or of the corporation accounts that any money was paid out on the four last mentioned checks that was not covered or balanced in the manner stated. It follows that, as to these which aggregated $1,650, the position of appellee that there was so much money remaining in the bank to the credit of' Race, Porter & Company, which the bank might properly apply on the note, is not well taken. Is it so as to the three checks first mentioned which went to pay the indebtedness of the corporation? That the money drawn on them was so applied can not be doubted, but counsel for appellee say the bank has no right to pay the indebtedness of the corporation without its authority, and invoke the familiar principle that one man can not, by his voluntary act, make himself the creditor of another. The principle has no just application to the facts. The checks were not drawn in exact conformity with the well understood instructions, but they were drawn by officers of the corporation who were at the time in sole charge of its business, and though irregular in form, were for a business purpose within the scope of the corporate affairs, for the liquidation of corporate liability, and the benefit of the transaction in each instance was enjoyed by the corporation. Such enjoyment was doubtless a conscious enjoyment, for we find nothing tending to show that the corporation made any effort to again pay the debts thus discharged, or that, in the slightest degree, it ever repudiated the transaction. It must be presumed that it ratified and approved what it thus enjoyed, for it can not be supposed that in the ordinary course of business it was ignorant of the facts.

Take the principal item, the debts due to Newell Bros. Mfg. Co. for $942.93; how can it be believed that the fact that it was paid was unknown, or that it was unknown that it was paid by this irregular check ? So of the other two—one for $87.40 to Leroy Paine, one for $62.50 to currency. It is a very convincing, if not conclusive circumstance, that although all these controverted checks were in the possession of the corporation from and after May 20th, no objection ever came to the notice of the bank until after this suit was brought.

Johnson testifies that the appellee saw and examined these checks at the time Johnson retired, and Preston, the cashier stated that he informed appellee about the 19th or 20th of May, that the bank had paid some checks countersigned by Porter, and that appellee made no objection, but as this is contradicted we lay it aside. Nor is it necessary to refer in detail to some other matters of evidence which are vigorously discussed in the briefs.

What has been stated will present the controlling facts in the case, and upon a full consideration of them, we are .constrained to hold that the finding of the Circuit Court, a jury being waived, for the appellee, was erroneous, and so plainly so as to require a reversal at our hands.

We are, of course, not unmindful of the rules which are applicable in reference to the weight to be given to the verdict of a jury, or to the finding of a court where a jury is waived, and were this a case where the evidence is conflicting, merely, upon controverted points, we should not, of course, interfere; but in the view we take there is substantially no conflict as to the vital features of the case to which we have alluded.

The judgment will he reversed and the cause remanded.

Reversed and remanded.


text:
    C. Aultman & Co. v. R. F. Osborne.

      Sales—Separator—Warranty—Failure of—Note—Set-off.

    In an action upon a promissory note given by the purchaser of a separator, the contention involving the questions of warranty and set-off, this court declines to interfere with verdict for the defendant.
    [Opinion filed November 23, 1889.]

      Appeal from the Circuit Court of Christian County; the Hon. James A. Creighton, Judge, presiding.
    Mr. John G. Drennan, for appellant.
    Mr. J. C. McBride, for appellee.
   Conger, J.

This was an action brought upon a note executed by appellee to appellant for a separator sold by the latter to the former under a warranty as to its working qualities. The defense relied upon a failure of this warranty, and also upon a plea of set-off, to recover the value of a second-hand machine received by appellant in part payment of the new one purchased. Appellee recovered a verdict for $75 upon which judgment was rendered.

We have carefully examined the evidence and the instructions, both those given and refused.

It would serve no useful purpose to set out at length the great variety of points elaborated in the briefs, but we are satisfied that the law was fairly given to the jury, and that substantial justice has been done between the parties, and therefore the judgment of the Circuit Court will be affirmed.

Judgment affirmed.