text:
    Board of Education, etc., v. Frank Helston, who sues by, etc.

      Schools—Mandamus—Pupil—Suspension of— Reinstatement—Deportment—Correction of Confessed Error by Amendment after Appeal—Costs.

    1. Upon a judgment awarding a writ of mandamus to compel a board of education to reinstate a pupil in a public school, it is held-. That the granting of costs against the board, with the award of execution therefor, was error, and that, although such error was corrected by amendment in the court below, after the record had been brought here on appeal, yet the costs of the appeal must go against the appellee.
    2. The suspension of a pupil until he shall comply with the requirements of the board can not be construed to extend beyond the current school year.

      3. One who is improperly excluded from the common schools sustains an injury which the law will redress, but the enjoyment of the rights thus furnished by the State at public expense is necessarily conditioned upon that degree of good conduct on the part of each, which is indispensable to the comfort and progress of others.
    4. It is within the discretion of the board to require a pupil to inform the board of the name, given to him by another pupil, of a party who had been guilty of a gross breach of rules, and, upon his refusal, to suspend him,
    5. By gross profanity and vulgarity to the board, the pupil forfeits his right, if any, to reinstatement.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Mr. Edward Lane, for appellants.
    It will not be disputed by any one that the board of education have ample power to make all necessary and reasonable rules and regulations for the government of schools under their charge. What are reasonable rules is a question of law. Thompson v. Beaver, 63 Ill. 353.
    The request of the superintendent of the school and committee in this case was reasonable, and after they had exhausted all reasonable means to induce the plaintiff to give the name of the boy in question, they had the right to suspend him from the school until he would comply with the request, and simply by complying with the request he was at liberty to return to the school at any time. Spiller v. Inhabitants of Woburn, 12 Allen, 127; Hodgkins v. Institute of Rockford, 105 Mass. 475; Russell v. Inhabitants of Lynnfield, 116 Mass. 365; State v. Webber, 108 Ind. 31; Gertich v. Michener, 111 Ind. 472; Ferriter v. Tyler, 48 Vt. 444; State v. Burton, 45 Wis. —; Donahoe v. Richards, 38 Me. 379; Guerency v. Pitkin, 32 Vt. 324; Lander v. Seaner, 76 Am. Dec. 156; State v. Pendergrass, 31 Am. Dec. 416; Sewell v. Board of Education, 29 Ohio St. 89; Burdick v. Babcock, 31 Ia. 562; Stephenson v. Hall, 14 Bar. 222; King v. Jefferson, etc., 71 Mo. 628; Bateman, Com. School Dec. 207; 18 Am. Law Reg. 533; 20 Am. Law Reg. 794; 3 Central Law J. 700; 21 Central Law J. 26.

      Boards of education are held by the courts to be quasi judicial, and their decision is final, unless it appears that they acted from malice or ill-will. If they exercise their powers in good faith their decisions will not be reversed by the court. Hodgkins v. Rockford, 105 Mass. 475; State v. Barton, 45 Wis. 150; Graves v. Inspectors, 20 Ill. 541; McCormick v. Burt, 95 Ill. 265.
    The board has discretionary powers in regard to making needful rules for the government of the school, and mandamus will not compel them to act differently. Will County v. The People, 110 Ill. 511; The People v. Commissioners, 118 Ill. 239; The People v. Hyde Park, 117 Ill. 462; People v. McCormick, 106 Ill. 184.
    It is only when discretion is abused that mandamus will lie. The gentlemen composing this board being men of common sense, learning and ability, with a full knowledge of all the facts, without malice or ill-will, did what they thought was for the best interest of this pupil as well as the whole school, and I respectfully submit, if their acts do not counter-view any known principle of law, the court will accept the judgment of the matter “as the general judgment of reasonable men,” and permit them to govern this school in harmony with such reason.
    Messrs. George Pepperdine and James M. Truitt, for appellee.
    In mandamus proceedings malice or ill-will do not have to be proved. This is a proceeding for a mandamus to compel appellant to admit appellee to the schools of the district. By this proceeding the court is asked to review appellant’s treatment of the boy, and if appellant is wrong, order the boy to be restored to school.
    Where it is sought to hold the members of the board individually liable in damages, then malice must be averred and proved. But in the case at bar appellee only asks the judgment of the court on the reasonableness of appellant’s conduct, and he is entitled to that judgment without any presumption being indulged by the court for or against appellant. The distinction we insist on is clearly laid down in the case of Dritt v. Snodgrass, 66 Mo. 286.
    The case of Murphy v. The Board of Directors, 30 Iowa, 430, was a similar proceeding to the case at bar. But our own court has passed satisfactorily upon the question. Trustees of Schools v. The People ex rel., 87 Ill. 303; The People ex rel. v. Board of Education, 127 Ill. 613; The People ex rel. v. Board of Education, 101 Ill. 308, Judge Walker’s dissenting opinion, on page 321.
    We concede that ordinarily the courts will refuse to direct how a discretionary act shall be performed, but will only compel the body to act. But we are satisfied that the proceedings of appellant can not be sustained by that proposition. In the cases of the Trustees of Schools v. The People ex rel., 87 Ill. 303, and The People ex rel. v. Board of Education, 127 Ill. 613, our Supreme Court sustained mandamus proceedings and passed upon the action of the school officers without being troubled about the discretionary power of such officers to act. If such officers act right, the courts will sustain them; but if they act wrong, the courts will, notwithstanding their supposed discretionary power, correct the wrong.
    It was never intended to make them the absolute judges of the lawfulness of their proceedings. Ferriter v. Tyler, 48 Vt. 412; Cotton v. Reed, 20 Ill. 607; State v. Board of Education, 63 Wis. 234; S. C., 53 Am. Reps. 282; State v. White, 82 Ind. 278; Murphy v. The Board of Directors, 30 Iowa, 430; S. C., 27 Am. Reps. 348; Dritt v. Snodgrass, 66 Mo. 286; Morley v. Power, 12 Central Law Journal, 510.
   Wall, J.

This was a proceeding by mandamus to compel the Board of Education of District No. 1, T. 8, etc., to restore the relator to the privileges of a pupil in the public school of said district.

A .demurrer was sustained to the amended answer, and there was judgment for a peremptory writ as prayed, with costs, and an award of execution therefor. The record having been brought here by appeal of the board, the appellee moved the court below to amend the judgment by striking out the award of execution for cost which, as appears by the additional record now filed, was done. Thus a confessed error has been corrected, but the cost of the appeal must fall upon the appellee as the judgment would necessarily have been reversed because of such error. Shiply v. Spencer, 40 Ill. 107; Seely v. Pelton, 63 Ill. 105.

It appears from the record that the relator was suspended from the school November 9, 1888, until he would comply with the requirements of the board. This suspension would not be construed to continue beyond the school year then current, and as that year has now expired the relator presumably is not now debarred of school privileges. The only point having legal significance remaining in the record is as to the costs in the court below which were adjudged against the board. To determine the propriety of that judgment it will be necessary to consider the facts presented by the pleadings.

The petition avers that the relator is fourteen years of age and a resident of said district, and had been in attendance as a pupil in the school ; that on the 9th of November, 1888, he was illegally suspended because he had refused to give to the superintendent the name of another pupil whom he (relator) thought was guilty of defacing the school building by obscene writing thereon. The answer admits the relator was a pupil and that he was suspended, alleges that some obscene writing (setting it out) very gross and in such large letters as to be legible across the street was found upon the building, and that relator was asked, as were other pupils, what he knew about it, and that he told the superintendent and the school committee that another boy had given him the name of the boy who did it, hut he refused to give the name of the boy, for which disobedience he has been suspended until he would give the name, or say that the name had not been given to him, which suspension was by the board approved. That afterward, in February, 1889, the relator appeared before the board, and still persisting in his refusal to tell what he knew, though modifying somewhat, but not materially, his former statement as to the nature of the information he possessed, he was requested by the board t'o ask his mother to come there so that the board might confer with her about the matter, which he in very insolent terms refused to do, and then applied the most profane and obscene epithets to the board and went away. The expressions used by him on that occasion are set out in the answer, but on account of their indecency are omitted here.

It is true, as suggested by counsel in argument, that the common schools are provided and maintained by taxation, that their benefits are rightly to be enjoyed by all, and that one who is improperly excluded sustains an injury which the law will redress. But the enjoyment of the right thus furnished by the State at public expense is necessarily conditioned upon that degree of good conduct on the part of each which is indispensable to the comfort and progress of others.

As in all other forms of social life, the individual must surrender a certain measure of his natural independence and must submit to be governed by those rules which have been found necessary; and very much as in the family, there is absolute necessity for strict obedience to all reasonable requirements of those who are in authority. The ordinary laws of decency and propriety in conduct and in speech can not be disregarded, and when broken there must be prompt and effective punishment, otherwise the great objects of the school will fail of accomplishment. It need not be argued that the defacement of a public school building by obscene writing thereon is an intolerable offense and that the most radical measures should be resorted to, if necessary, to prevent a repetition of it. It is the duty of all good citizens to uphold the officers of the law and when called upon by a grand jury every man may be required to state upon oath what he may know as to the perpetration of any crime or misdemeanor, though he is, of course not bound to criminate himself.

So here every pupil, when called upon by the superintendent or by the board, should, as a matter of duty and loyalty to what is essential for the common welfare, freely state anything within his knowledge not self-criminating, that will’ assist in bringing the offender to justice and thereby tend to the repression of all such offenses.

If he refuses to do this he is guilty of disobedience, for which reasonable punishment may be inflicted. By the provisions of the school law, Secs. 49, 83, the board may suspend or expel a pupil for “ gross disobedience or misconduct.”

We shall not discuss the question whether the decision of the board in such a case is so far judicial in its nature and so much within their discretion as not to be the subject of review in legal proceedings, but shall assume that the law may and will, in proper cases, set aside such decisions and grant appropriate relief where manifest wrong and injustice appear. It is to be conceded, however, that the case must be clear, and that much must be presumed in favor of the action of the board and much should be left to their discretion. The duty of a school teacher and of school directors is to a great extent parental, and in the administration of their power they must be guided by wise judgment. Many circumstances and considerations not easily stated on paper, may properly influence their action. Insubordination in a large public school is dangerous in the extreme. Firmness and decision may often be essential to good order, and the timely and prompt correction of a few turbulent spirits may be absolutely necessary to prevent the further spread of misrule. When done in good faith such acts should receive very favorable consideration in the courts.

In this case, upon the facts disclosed by the answer, the board was clearly warranted in suspending the relator. He was guilty of gross disobedience in refusing to furnish what information he had when called on for that purpose. For such refusal of a witness to testify before a grand jury or upon a trial he may be fined and imprisoned.

By his misconduct, when before the board in February, the relator forfeited all rights to reinstatement until suitable reparation therefor was tendered.

It would be unwise and unreasonable to open the door of the court to one so forgetful of duty and so wanting in the respect due from a youth to his superiors in age and authority. Here is a boy of fourteen who has defied the proper command of his school superintendent and who hr.? been guilty of an outrageous breach of decorum toward the board, who were for the time being his judges, asking the law to reinstate him as a pupil. If he could succeed under those circumstances, the power of the superintendent and the board would justly be regarded as very insignificant and the influence of the example would be exceedingly unfortunate.

The extraordinary remedy by mandamus, which is to be invoiced only in clear cases, and which is dependent upon a sound judicial discretion, should not be granted upon the facts set forth in the pleadings. It was error to sustain the demurrer to the amended answer. The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    The Jacksonville Southeastern Railway Company v. Elizur Southworth.

      Bailroads—Personal Injuries—Pass—Gross Negligence—Evidence— Instructions—Examination of Jurors—Special Interrogatories.

    1. In an action against a railway company to recover damages for an injury received by a person while riding on its road upon a complimentary pass, it is held: That a question to a juror by plaintiff's counsel as ti whether, if it should appear in evidence that the plaintiff, when he received the injury, was riding on a pass, that fact would influence his verdict in the case, was not material error.
    2. A question to which no objection was made in the trial court can not be considered here.
    3. Where evidence tends to show a company’s track to have been in the same condition shortly before and after the accident occurred, it raises a presumption that it was in such condition at the time thereof; and such evidence, if material, is admissible.
    4. Where portions of an answer in a deposition are improper, the same should be eliminated before the deposition is read to the jury; but where this is not done and the jury are plainly told that such evidence is excluded from them and not to be considered, the reading of the same does not constitute reversible error.
    5. Under the issues in the case presented it was proper for the plaintiff to introduce evidence to show the condition of defendant’s track for a reasonable distance from the place where the accident occurred.

      6. A clause in an instruction setting forth that “ gross negligence is defined by the law to he wilful or intentional negligence,” is erroneous.
    7. An instruction in behalf of defendant, ignoring one of the disputed facts upon which plaintiff based his claim, may be modified by the trial court.
    8. The trial court necessarily possesses some discretion as to the number and character of the special interrogatories to be submitted to the jury, and in the case presented that discretion was not abused.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Montgomery County ; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Morrison & Whitlock, for plaintiff in error.
    Messrs. Brown, Wheeler & Brown, for defendant in error.
   Conger, J.

This was an action on the case. The declaration in the first count alleged in substance, that on the 11th day of March, 1887, defendant in error was a passenger from Virden to Litchfield, on the railway of plaintiff in error, and was using an ordinary complimentary pass, upon the back of which was printed: “This pass is not transferable, and the person accepting it assumes all risk of accident and damage to person and baggage.” That the company permitted its track to be out of repair, by being rough and uneven, the ties being rotten, the road bed too narrow to support the track; the rails to become worn and battered and split; and by the use of short rails of eight feet, and the insecure fastenings of the rails, and by cars too light to be used on the track at a high rate of speed; and that by the use of defective machinery and the running of the cars at a high and dangerous rate of speed, the cars were derailed, and defendant in error was injured; the second count charges substantially the same, except that it did not set out the pass. A plea of not guilty was filed and cause tried by jury resulting in a verdict of $6,500 in favor of defendant in error.

We think the evidence fully warranted the jury in finding that the servants of plaintiff in error were guilty of gross negligence, and it was upon the theory that gross negligence alone would warrant a recovery that the case was tried, and instruction given. Ill. C. R. R. Co. v. Read, 37 Ill. 484.

Various errors are assigned which we will notice in the order named,in the brief of plaintiff in error. In the examination of the jury by counsel for defendant in error, the court, over objection, permitted the following question to be asked: “ Would the fact, if it should be shown in evidence that the plaintiff was riding on a free pass at the time of the injury, influence your judgment or verdict in the case?” Ho challenge was made to any juror because of the answer to this question, hence it may be assumed such questions were asked for the sole purpose of affording information to counsel, upon which to intelligently exercise a peremptory challenge, and for such purpose we see no serious impropriety in the question.

It is said the use of the pass was a fact stated in the declaration, and counsel say: “Can it be said that a juror under such circumstances is not to be influenced by the fact? To so hold is in effect to hold that the juror must disregard the admission of the record, because the facts alleged on the face of the declaration show that the plaintiff had, for a good consideration, contracted to release the defendant from liability except upon certain conditions.”

It was also a fact stated in the declaration that the defendant was a railway corporation, and it would have been proper to have asked a juror if such fact would influence his judgment or verdict. It is true, either of these questions, if confined to the literal meaning of the words, would give no light as to the juror’s feelings or prejudices, but such questions are commonly understood to mean, would such facts in the mind of a juror have an undue importance and hence improperly influence his judgment in reaching a verdict. While the question is not accurate, and is subject to criticism, we can not think it worked any injury to plaintiff in error.

Second. Objection is made to certain questions asked Dr. Bauch, which were as follows:

Q. “Is it or not, ever true, that injury to the spine from concussion, or perhaps otherwise, of which the patient may for the time be ignorant himself, may afterward develop into, serious injury?”
A. “It is.”
Q. “ Is it or not a fact, that the injury to this spine from such cause, apparently unknown to the patient at the time, may develop sooner or later, weeks or months, perhaps, after the injury has been received ? ”
A. “Yes. In this connection I would simply make this remark, that when I speak of this injury to the spinal column, I also include the spinal marrow that is inside.”

Dr. Rauch had, as a physician, attended upon defendant in error perhaps three weeks after the injury occurred, and from that time on for a considerable period, and had already detailed to the jury the symptoms he found, and the opinion he had formed in reference to the character and degree of the injury received by the defendant in error, hence we see no objection to these questions, except possibly that they were leading in form; but that objection not having been made upon the trial, it is too late to raise it for the first time in this court.

Third. It .is insisted the court admitted improper evidence, as stated by counsel for plaintiff in error upon this point. “ The objections are, first, the testimony should have been confined to the condition of the road at the time of the accident, or at least to a period not later; and second, the evidence should have been confined to that part of the road where the accident did in fact occur.” The condition of the track prior to or after the injury, is not material or important except in so far as it may tend to show its condition at that time, which is the real question for the jury to determine. One Howard, a witness, had stated to the jury that he had passed over the track a few days before the accident, and described its condition, and then stated that he again saw the track in July, following March (the time of the accident), and was then asked its condition as compared with its condition at the time of the accident or shortly before, and answered that he could not see any alteration. Where evidence tends to show the track to be in the same condition shortly before and after the accident occurred, it raises a presumption that it was in the same condition at the time of the accident, and hence bears upon one of the material questions to be determined by the jury.

Objection is also made to the depositions of Schlon and McKean, because, with evidence that was proper and legitimate in reference to the condition of the track, they also spoke of what occurred when repairing the track, in August and September following the accident. The court, in passing on this objection, said:

“ While 1 can not separate the answer to a question, where the question is proper, very well—that which is improper and that which is proper—without breaking the connection of the question, so that it may be misleading or misunderstood by the jury, I can only say that the question of repair can not affect the issue that is trying in any manner whatever, because the reason for the repair may grow out of so many different causes, occurring at different times, and with a different purpose in view; that nothing can be assumed by the jury in consequence of that, and any evidence of that character is excluded from them and not to be considered by them in making up their verdict.” The depositions were then read to the jury. Where there are portions of an answer in depositions that are improper, and the jury are plainly told, as they were by the trial court in this case, that such evidence is excluded from them and not to be considered, we do not think it so serious an error as to justify a reversal, when it is apparent no harm has resulted, although the better practice would be to eliminate the objectionable features from the deposition before it is read to the jury.

The second branch of this objection is, that the evidence should have been confined to the place where the accident occurred, which place is defined by counsel for plaintiff in error in their brief, as the part of the road where any evidences could be seen immediately after the accident, of any giving way of the track in any of its parts, or evidences of the train having left the rail.” This would doubtless be the rule where the sole cause of the accident is a defect in the track, which can be located, such as a defective culvert, bridge or broken rail. But in the case at bar it is agreed by both parties that the immediate cause of the derailment of the train was the breaking of one of the car wheels, and the cause of such wheel breaking was the point in contention.

The plaintiff in error maintained that the wheel broke from some latent defect, under reasonable usage and strain, and after it had been properly tested, while defendant in error insisted the broken wheel was caused by the train running too rapidly over a rough and uneven track, thereby causing the cars to oscillate from side to side, throwing the flange of the car wheel against the rails with such force, as, by a constant repetition of such blows,' to break it. It was therefore proper for defendant in error, in seeking to sustain his theory, to show to the jury the condition of the track in this respect, for such a distance from the place of the accident as would throw light upon this question.

Such inquiry, however, should be limited by the distance over which the dangerous rate of speed was maintained, immediately preceding the accident, and which fairly might be regarded as one continuous act of negl igence, and the immediate cause of the breaking of the wheel. We think the inquiry was governed by these principles, and hence there was no error in this respect.

Fourth. Error is assigned upon the instructions given and refused. The first and fourteenth instructions presented by plaintiff in error attempted to define gross negligence, in the following words: “ That gross negligence is defined by the law to be wilful or intentional negligence.” The court struck this language out of the first instruction and refused the fourteenth. To sustain this language in the instructions the case of T. W. & W. R. R. Co. v. Beggs, 85 Ill. 84, is relied on, but we fail to see its bearing on the case at bar. In that case the court in the opinion clearly give the reason for using the language in reference to what would, under the circumstances of that case, make the company liable. The court say: “He (Beggs) was traveling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances the company could only be held liable for gross negligence, which would amount to wilful injury.” If we understand this language properly it does not assert, as contended by counsel for plaintiff in error, that gross negligence can not exist without wilful injury, but that there is a degree of gross negligence which can only arise from wilful or intentional injury. But whatever may be the true meaning of the language it has no application to the present case, as it is not pretended that defendant in error was guilty of any fraud in the use of his pass, ánd for the further reason that we have, in C., B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 521, a definition of the term “gross negligence,” with which the objectionable language in the instructions in the present case was wholly inconsistent. The court in that case say: “ Gross negligence is the want of slight diligence.” “ When there is a particular intention to injure, or a degree of wilful or wanton recklessness, which authorizes the presumption of an intention to injure generally, the act ceases to be merely negligent and becomes one of violence or fraud.” “ In negligence there is no purpose to do a wrongful act or to omit the performance of a duty.” “Negligence, even when gross, is but an omission of duty; it is not designed and intentional mischief, although it may be cogent evidence of such fact.” “What is less than slight negligence the law takes no cognizance of as a ground of action, and beyond gross negligence the law, while recognizing there may be liability for trespass because of a particular intention to do wrong, or of a degree of wilful and wanton recklessness which authorizes the presumption of general intention to do wrong, recognizes no degree of negligence.”

Instruction No. 3 was properly modified because, as presented, it entirely ignored one of the disputed facts upon which defendant in error based his right of recovery, i. e., the dangerous speed of the train. As a series we think the instructions fairly presented to the jury the law of the case, and that no error of sufficient importance exists in them to authorize a reversal.

The fifth objection is that the court refused to submit to the jury certain questions for special findings, and modified others which were given. It would be useless to state them all. There'must of necessity be a discretion in the court as to the number and character of special findings to be submitted to the jury, and unless it is apparent that such discretion has been abused,to the prejudice of the party complaining, the action of the court should be upheld. After a careful examination we are satisfied that justice has been done in this respect. Those which the court refused to submit to the jury were either calling for answers upon mere evidentiary facts, or were irrelevant and were objectionable under the rule announced in C. & N. W. R. R. Co. v. Dunleavy, 129 Ill. 132.

Upon a careful consideration of the whole record we are satisfied that plaintiff in error had a fair trial, and that justice has been done.

The judgment of the Circuit Court will therefore be affirmed.

Judgment affirmed.


author: Wall, J.

text:
    P. E. Lewis et al. v. Nancy R Flowree, Administratrix, etc.

      Practice—Appeals from County Court.

    An appeal to the Circuit Court from' an order entered by the County Court, on petition of an administratrix to sell real estate, may be granted at any time during the term. The time for appeal is not limited to twenty days. .
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Mason County; the Hon. L. Lacey, Judge, presiding.
    Messrs. I. R. Brown and B. S. Prettyman, for plaintiffs in error.

      Messrs. Wallace & Lacey, for defendant in error.
   Wall, J.

This was a proceeding originating in the County Court of Mason County, upon a petition by an administratrix, for leave to sell real estate to pay debts. An order of sale having been entered according to the petition, an appeal to the Circuit Court was prayed for by the present plaintiffs in error, which was granted “upon tiling good and sufficient appeal bond in the sum of one hundred dollars.” This, as well as the order of sale, was entered on the 8th of October, 1888.

Afterward, on the 30th of October, 1888, being one of the days of the same term of court, the following was entered: “And now on this day come the defendants herein, viz.: Eliza Lewis, alias Elizabeth Lewis, Samuel Flowree, Edward Lewis, Lillie Lewis and Mary Webb, by I. R. Brown, their attorney, and file appeal bond herein, in the penal sum of one hundred dollars, signed by E. E. Lewis, P. E. Lewis, W. H. Flowree, S. C. Flowree and Lewis Davenport, as security. And the court deeming the said bond good and sufficient, the same is approved and appeal granted in accordance with the prayer of said defendants.”

In the Circuit Court the administratrix moved to dismiss the appeal because the bond was not filed within twenty days of the decree of sale. This motion was sustained and the appeal dismissed. Error is now assigned upon this ruling of the Circuit Court. The defendant in error argues that the matter is controlled by the provisions of Sec. 124, Ch. 3, R. S. It was held in Darwin v. Jones, 82 Ill. 107, that the appeal must be perfected by filing bond within twenty days after the entry of the order or decree appealed from, and if this appeal depended upon that section it was not properly perfected. It is urged, however, on behalf of plaintiffs in error, that the appeal may be sustained under Sec. 122, Chap. 37, R. S., Starr & C. Ill. Stat. 729, which provides that “appeals may be taken from the final orders, judgments and decrees of the County Courts to the Circuit Courts of their respective counties in all matters, upon the appellants giving bond and security in such amount and upon such conditions as the court shall approve, except as otherwise provided by law.”

There is no necessary repugnance between Sec. 124, Chap. 3, and the section last quoted. Both may stand and either may be invoked in taking an appeal from the County to the Circuit Court. Bruce v. Schuyler, 4 Gilm. 221; Fowler v. Pirkins, 77 Ill. 271; Steele v. Steele, 89 Ill. 51.

Then the question is as to the true construction of the last named section—122, Chap. 37. Suppose reliance is had solely upon the order of October 30th; can the appeal be sustained? The order of October 8th is silent as to the time when the bond was to be filed, and as to the sureties thereon, and it may be doubted whether that order alone would have been sufficient to support an appeal. Who was to determine whether the bond was filed in due time, if the time was not fixed by statute—or whether the sureties were good for the amount?

Disregarding the order of October 8th or considering it as interlocutory merely—the order of October 30th contains all that is requisite to authorize an appeal. It recites that a bond in a certain amount and with certain sureties had been filed, and that the court, deeming the bond sufficient, approved the same and granted an appeal as prayed. This order is complete in and of itself—and the only question seems to be whether it was competent to make it, or any order granting an appeal, at any time during the term, though more than twenty days after entering the decree of sale. We entertain no doubt it is competent to do so under Sec. 122, Ch. 37, and whatever meaning may be attached to the "words “ except as otherwise provided by law,” they were not intended to limit the power of the court-to grant an appeal at any time during the term at which the order sought to be appealed from was entered.

Whether these words qualify the general right of appeal or merely the power of the court in reference to the amount and conditions of the bond so as not to interfere with what may be “ otherwise provided by law,” we need not inquire. There is here given express authority to the County Court to approve the amount and conditions of the bond, and impliedly to grant an appeal upon such terms as it may thus impose, and this is a power which, by all analogies, may be exercised at any time during the term, but not thereafter, at which the order appealed from was made. It is not limited by the words “as in other cases,” contained in Sec. 124, Chap. 3.

If we are correct in this view, it was error to dismiss the appeal. The judgment is. reversed and the cause remanded.

Reversed and remanded.


text:
    Catherine Condon, Guardian, etc., v. Julia Churchman, Administratrix, etc.

      Guardian and Ward—Settlement—Report—Citation—Chancery Proceedings—Exceptions—Interpleader.

    1. Upon the citation of a guardian to make a report at the instance of the administratrix of the ward, this court holds that a settlement between the guardian and ward at about the time the latter became of age, she being in poor health, uneducated, of weak mind and under the influence of her guardian, can not stand.
    2. On appeal to the Circuit Court from an order of a county judge, entered on the hearing upon a citation to a guardian, the case does not become a chancery proceeding merely because it is referred to a master to take testimony, and the judgment is called a decree and is in form appropriate to chancery proceedings.
    3. In the case presented, there being no hill of. exceptions, or exception taken to the final judgment or rulings of the trial court, the judgment for plaintiff can not be disturbed.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Calhoun County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. J. S. Carr, for plaintiff in error.
    Mr. T. J. Selby, for defendant in error.
   Wall, J.

The plaintiff in error,' who was guardian of Mary Elizabeth Kliffens, was cited to make a report at the instance of the administratrix of the ward. She presented a report to the County Court in response to the citation, which was not approved, but the court stated the account and found there was due from the guardian the sum of $10.45, from which finding and judgment the administratrix prosecuted an appeal to the Circuit Court. In the Circuit Court the cause was referred to the master in chancery to take the testimony.

As appears from the record the master reported certain testimony as taken by him, and the court, upon final hearing, charged the guardian with the sum of $750 in addition to the balance reported by the guardian, with six per cent per annum from November 20, 1880, with annual rests, for money realized by the guardian from the sale of the ward’s real estate, and it was ordered that the guardian pay to the administratrix of the ward the sum of $1,154, that being the amount found to be due in that behalf, within sixty days, and that the guardian pay the cost of the proceeding. Regarding the proof contained in the report of the master, it is somewhat uncertain whether the ward had attained the age of eighteen years when the real estate was sold, but her exact age is not a controlling circumstance in view of. the other facts appearing from the report.

It appears that on the 20th of November, 1880, the ward then being probably about, if not a little over, the age of eighteen years, conveyed the land to the guardian, and that the latter on the same day conveyed to one Romain, who paid her therefor the sum of $750. It appears also that this was in pursiiance of an arrangement agreed upon, before; Romain having desired for some time to acquire the land but the ward being unwilling to sell to him direct, or at least refusing to do so.

It is not denied that the guardian kept the money so received, but it is claimed that at or near the time of these conveyances the guardian and ward settled all matters between them, and that the guardian was to take the land in payment of all demands then held against the ward, and in further consideration was to keep and take care of the ward, who was then in failing health, the remainder of her life and give her remains after death a decent burial. It appears that the ward was then in very poor health ; that she was uneducated, not of strong mind according to any of the proof, and quite the contrary according to some of it; that she was very decidedly under the influence and control of the guardian, who was her grandmother, with whom she then resided, as she had always during the guardianship, a period of about eleven years, and that the guardianship accounts were then unsettled. Under such circumstances the alleged settlement can not be permitted to stand. Carter v. Tice, 120 Ill. 277; Grillett v. Wiley, 126 Ill. 310 ; 1 Story Eq. Jur., Sec. 217; 2 Pomeroy’s Eq. Jur., Sec. 961.

Aside from this consideration of the merits the judgment must be affirmed, because there is no bill of exceptions containing the evidence in the case, nor does it appear that any exception was taken to the final judgment or any of the rulings of the court. This was not a chancery proceeding. If it were this objection could not be made. Smith v. Newland, 40 Ill. 100; C. A. W. Co. v. C. M. L. I. Co., 57 Ill. 424.

It is true the testimony was taken by the master in chancery under an order of reference to him for that purpose, and that the final judgment was called'a decree and is much in the form appropriate to chancery proceedings. This does not render it a chancery cause. It was, as already stated, a mere citation in the County Court upon the petition of the administratrix, and there was no occasion nor was there any order to transform it.

It was necessary to except to the rulings and final judgment and to preserve the evidence by bill of exceptions, in order to review the proceedings in a court of appellate jurisdiction.

The judgment will be affirmed.

Judgment affirmed.


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    The President and Trustees of the Town of Rushville v. Town of Rushville et al.

      Taxation—Statutes—General and Special—Construction of—Repeal by Implication.

    1. A statute will never he held to be repealed by implication if such presumption can be avoided on any reasonable hypothesis.
    2. In the case presented, it is held that Sec. 4, Art. 7, of the charter of the town in question, in regard to the disposition of road and bridge taxes, was not repealed by the subsequent general law of 1883.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Schuyler County; the Hon. J. C. Bagby, Judge, presiding.
    Mr. Phillip E. Mann, for plaintiff in error.
    A general statute, without negative words, will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent. Covington v. City of East St. Louis, 78 Ill. 548; Bruce v. Schuyler, 4 Gil. 221; Town of Ottawa v. La Salle County, 12 Ill. 339.
    “The repeal of a statute by implication is never permitted if it can be avoided on any reasonable hypothesis.” Bruce v. Schuyler, 4 Gil. 221; Board of Supervisors v. Campbell, 42 Ill. 490; Hume v. Gossett, 43 Ill. 297; City of Chicago v. Quimby, 38 Ill. 274; People v. Barr, 44 Ill. 198; People ex rel. v. Board of Supervisors of La Salle County, 111 Ill. 527; Butz et al. v. Kerr, 123 Ill. 659.
    Where statutes are seemingly repugnant it is the duty of the court so to construe them that the latter shall not repeal the former by implication. Cases cited, and Gunnarssohn v. City of Sterling, 92 Ill. 569.
    The statute as to powers of road commissioners is general, and that as to powers of cities is special, and the special laws relating to cities are not to be affected by the general statute as to town officers. The People v. Supervisors, 111 Ill. 527.
    Messrs. W. L. Vandeventer and S. B. Montgomery, for appellee.
    We maintain that the act of 1883 revised the whole subject of the division of taxes levied in such incorporated towns as appellant; for it applied by its express terms to all such towns, etc., as have control of the streets and alleys, and in such case such revision repeals all former laws on the subject. Devine v. Cook County, 84 Ill. 590 ; Culver v. Third National Bank, 64 Ill. 528; Andrews v. The People, 75 Ill. 605; Ill. & Mich. Canal v. Chicago, 14 Ill. 334.
   Conger, J.

John S. Stutsman, during the year 1888, was treasurer and ex-officio collector of delinquent taxes of Schuyler county, and he filed this bill of interpleader, requiring the president and trustees of the town of Rushville, and the town of Rushville (the former being an incorporated village and the latter the township), to interplead as to the sum of $43.70—■ being one-half of the amount of the highway tax levied by the commissioners of highways of the town of Rushville on property within the corporate limits of Rushville (the village) for road and bridge purposes.

The corporation relies upon Sec. 4, Art. 7 of its charter (Private Laws of 1869, Vol. 4, page 38), which is as follows: “Prom and after the passage of this act, the collectors of the several townships in which said town of Rushville is located and included, shall, in the collection of all bridge or road tax levied and collected for township purposes, by township authorities, keep an account of the amount of all such taxes by them collected, on property within the corporate limits of said town of Rushville; and upon the collection thereof shall pay to the town treasurer of the'town of Rush-ville such amount as shall have been collected upon property within the limits of said town; and the same shall be exclusively expended by said town in improving the streets and highways, and in building and repairing the bridges within the corporate limits of the town; and said town is hereby, made a road district, under the management and control of the said corporation.” The town of Rushville, on the other hand, insists that the foregoing provision of the charter has been repealed and rendered nugatory by Sec. 16 of the act entitled “ Roads, Highways and Bridges.” See Session Laws of 1883, p. 136.

The last half of said Sec. 16, the only part that is germane, provides: “ Provided that one-half the tax provided to be levied in Sec. 13 of ‘ this act ’ (tax levied on the property of the town for road and bridge purposes, Sec. 13 of said act), and collected for road and bridge purposes, on the property lying within an incorporated village, town or city in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of the roads, streets and bridges, either within or without said village, town or city, and within the township, under the direction of the corporate authorities of such village, town or city.” The Circuit Court held that' the general law of 1883 repealed the foregoing provision of the chapter, and that the corporation was entitled to but one-half of the highway taxes raised within its limits, and the correctness of such holding is the only question presented by the record.

The rules in reference to a repeal by implication are: “A statute will never be held to be repealed by implication if it can be avoided on any reasonable hypothesis. A statute will not be repealed by implication unless the subsequent act is so inconsistent and repugnant to its provisions that the two can not stand together. A subsequent general law will not, by implication, operate as a repeal of a special law on the same subject, though inconsistent with it. And a repealing clause of a general statute will not repeal a special one on the same subject, unless a clear intention is manifested that such repealing clause shall embrace special as well as general laws.” Bruce v. Schuyler, 4 Gilm. 221; Board of Supervisors v. Campbell, 42 Ill. 490; Town of Ottawa v. La Salle Co., 12 Ill. 339; Butz v. Kerr, 123 Ill. 659.

We see no difficulty in holding that the provision of the charter of Rushville may be sustained and enforced, notwithstanding the subsequent general law. It is not unreasonable, we think, to say that the legislature intended, by the law of 1883, to provide a rule applicable to all corporations not having any special provision in their charters upon the subject, but did not intend to interfere with provisions inconsistent with such general rule when found in special charters. The case of Butz v. Kerr, supra, is, we think, very much in principle like the one at bar.

The decree of the Circuit Court will be reversed, and the cause remanded, with directions to that court to enter a decree for the amount of money in controversy in favor of appellants, the president and trustees of the town of Rushville.

Reversed and remanded, with directions.


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    William A. Grote v. Michael J. Clerihan.

      Negotiable Instrument—Note—Neal Property—Contract of Sale— Assignment of—Failure of Title—Instructions.

    Upon an assignment of a contract for the purchase of real estate, executed by the vendee, which provided that the agreement was thereby sold by the plaintiff to the defendant, the latter to assume all the conditions contained in the original contract, the assignment also containing the terms of payment by the assignee to the assignor, this court holds that the assignor did not thereby guarantee that the vendor in the original contract would faithfully perform.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Mr. M. T. Layman, for plaintiff in error.

      Mr. George W. Smith, for defendant in error.
   Wall, J.

The plaintiff in error brought assumpsit against the defendant in error upon a promissory note for $100, bearing date November 3, 1888, due March 1, 1889. The case was tried by the court, a jury being waived, and it was stipulated that all legal defenses might be proved under the general issue. The finding was in favor of defendant against plaintiff for $100. Judgment went accordingly.

The note sued on was given by defendant to the plaintiff in part consideration for the assignment of a written contract for t.he sale of a tract of land by and between Wemple Brothers and the plaintiff. Said contract bore date August 25, 1888, and witnesseth that Wemple Brothers sold the land described for $2,250-—$200 in cash, or cash and approved note, due March 1, 1889; $500 more was to be paid March 1, 1889, upon which plaintiff was to receive possession; but before taking possession he should execute his obligation for the balance of purchase money, making it a lien upon the land, which balance was to bear interest at seven per cent after the last named date. The assignment was written on the back of the contract, signed by both plaintiff and defendant, and provided that the agreement within for the sale of land was thereby sold by the plaintiff to the defendant, the latter to assume all the conditions contained in the written agreement, and the said Clerihan (defendant), was to pay to the party of the first part (plaintiff), $100, and to give his note or cash for $100 on Saturday, November 3, 1888.”

The cash payment of $100 was made and the note sued on was executed. The defense was that there was a failure of title and that defendant was not only not bound to pay the note but that it was the duty of the plaintiff to refund the cash payment of $100. The court took that view of the matter and gave judgment as already stated.

It appeared that the land was subject to some incumbrances in the shape of judgment liens, but that these, excepting a small part of the cost, had been discharged before the present suit was brought. It appeared also that there was a disagreement between Wemple Brothers and the defendant as to the terms upon which a deed should be made and as to protecting defendant against the possible effect of any of said liens.

It will be noticed the agreement does not specify in so many words what sort of title should be conveyed, or indeed, that any conveyance should be made, nor when the final payment should be absolutely due. The want of certainty in these important respects might produce controversy between men of perfect integrity and the utmost prudence, but whatever might be the result of such an issue, we think there is nothing in this record to bar the plaintiff in his suit upon the note.

He merely sold his interest in the contract to the defendant. He did not undertake that Wemple Brothers should faithfully perform it, nor that, if they did, the defendant should receive or enjoy any certain measure of benefit therefrom.

Whatever rights were secured by the contract passed from the plaintiff to the defendant. It was open to the defendant to construe it and determine for himself what was its legal effect, and in the absence of fraud it is wholly unimportant whether itwas worth more or less than either of the parties may have supposed. The plaintiff authorized the defendant to demand from Wemple Brothers all that he could have demanded, nothing more or less, but bound himself to nothing in that respect. The defendant assumed all conditions of the agreement and must look to Wemple Brothers for whatever title was called for in and by the contract.

The plaintiff asked the court to hold the following propositions of law, but the court refused to do so:

1st. “ That the defendant was not entitled to a conveyance in fee simple, but only to such title as Wemple Brothers had at the time of their contract with plaintiff.

2d. That the writing on the back of the contract between plaintiff and Wemple Brothers, signed by plaintiff and defendant, is an assignment of the contract, and that defendant is required to look to Wemple Brothers for a conveyance of the premises.”

It is not necessary to determine as to the propriety of the first. The second, however, is applicable and correct. It should have been held. We are of opinion the plaintiff was entitled to recover and that the judgment for defendant was erroneous. The same will therefore be reversed and the cause remanded.

Reversed and remanded.


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    Michael Burke v. Charles C. Daley.

      Pleading—Negligence—Failure to Keep Fence in Repair—Injury to Horse—Bull.

    In an action to recover damages for an injury inflicted on plaintiff’s horse by the bull of defendant, it is held: That the averment that by reason of the negligence and default of the defendant in failing to keep his part of a line fence in repair, the horse passed into defendant’s pasture and was gored, was a sufficient averment that the results charged were caused by his negligence.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Jersey County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. Thomas F. Ferns, for appellant.
    Messrs. William Brown and W. S. Hay, for appellee.
   Conger, J.

In this case a declaration was filed by appellant in substance alleging that appellant and appellee owned adjoining farms, and it-was the duty of each to maintain one-half of the partition fence between the farms; that appellee negligently permitted his half of the partition fence to so get out of repair that in consequence thereof appellant’s horse escaped out of the pasture where he was feeding upon appellant’s farm, into an adjoining pasture on appellee’s farm, and was there gored and killed by appellee’s bull which was running at large in appellee’s pasture. A general demurrer was sustained to this declaration, and appellant, standing by his declaration, has brought the record to this court.

Counsel for appellee insist that the demurrer was properly sustained because there is no averment in the declaration that appellee had knowledge of the vicious propensity of his bull, and that before the owner of domestic animals such as horses, cattle, dogs, etc., can be made liable for injuries done by them it must be proven that he had notice of the inclination of the particular animal complained of, to commit such injuries, in all cases where the animals are rightfully in the place where they do the mischief. This may be a correct statement of the rule, but we do not think it meets the case at bar. The injury to appellant’s property is in the declaration charged to have occurred primarily from the neglect of appellee to maintain his portion of the partition fence. The .straying of appellant’s horse into appellee’s pasture and his being gored by the bull, are charged to be the results of such neglect. The rule in such cases is stated in 1 Chitty’s Pl. 82, and is quoted and approved in Marean v. Vanatta, 88 Ill. 132. It is as follows: “ The owner of domestic or other animals not naturally inclined to commit mischief, as dogs, horses and oxen, is not liable for any injury committed by them to the person or personal property of another, unless it can be shown that he previously had notice of the animals’ mischievous propensity, or that the injury was attributable to some other neglect on his part.” See also Saxton v. Bacon, 31 Vt. 540. Whether appellee could have reasonably anticipated the result which flowed from his neglect to maintain the partition fence, or, in other words, whether the damages to appellant are the natural and proximate consequence of appellant’s negligent act, is, we think, a question of fact for the jury. The court can not pronounce either way as a matter of law.

The declaration alleges in direct terms that by reason of the negligence and default of appellee, the horse passed into appellee’s pasture and was gored. This, we think, is a sufficient averment that the results charged were caused by appellee's negligence, and the jury can determine from the evidence whether it is sustained or not.

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

Reversed and remanded.


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    Henry C. Meyer v. Huse, Goodell & Co.
    Judgments•— Reversal—Nominal Damages— Written Contract — Construction of—Instructions.

    This court will not reverse a judgment merely for the purpose of permitting the recovery of nominal damages.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Cass County; the Hon. L. Lacey, Judge, presiding.
    Messrs. Hewitt & Thacker, and Morrison & Whitlock for plaintiff in error.
    Messrs. Mills & McClure, for defendants in error.
   Wall, J.

This was an action of covenant. The alleged breach was the failure to build and maintain a dam of earth, six feet high, in the lowest depression of the ground on which it was to be constructed. The case was tried by jury, resulting in a verdict and judgment thereon for defendants. The evidence was conflicting in reference to the height of the dam in the lowest place, but there was enough on behalf of defendants to warrant a finding for them in this respect. The real controversy is whether, conceding it was six feet high, it was constructed according to contract, of earth.

It appears that a flood-gate or board, one foot high, was put in at the place in dispute, and that, according to defendants’ evidence, the dam was five and one-half feet high to the bottom of this flood-gate, as it was 'Originally constructed, and that subsequently earth was thrown in front of the flood-gate until practically on a level Avith the top of the same. The evidence also tended to show that the floodgate was Avater tight before the earth was filled in against it; that the purpose of it was to let off the surplus water, and thus protect the dam while it was green, and that it had not been lifted for three or. four years before suit was brought. And there was evidence tending to prove that the plaintiff had suffered no damage by reason of the manner of the construction of the dam.

It is urged the court erred in refusing to instruct the jury that if the dam was not constructed according to contract the plaintiff was entitled to a recovery. The court did so instruct in general terms, but refused to advise the jury that if the earthAvork Avas only five and one-half feet high, and the floodgate placed above it, the contract was not complied with.

There are some technical objections to the form and terms of the instructions asked by the plaintiff on this point, which perhaps would justify their refusal, but the court evidently took the view that if there was no damage caused by the use of the wooden flood-gate in the first instance, and if it was then made water-tight and afterward filled in with earth so that the object and purpose of a dam six feet high was accomplished, then the plaintiff could not recover, and so instructed at the instance of the defendants. The court was careful, however, to insert, as a condition of such non-liability, that no damage had been done by reason of such construction. The position of plaintiff is, that as the contract called for a dam of earth, nothing else—though as good for all purposes —will answer, and that for such failure nominal damages, at least, will be recoverable.

It is not probable the jury were misled by these instructions to find for defendants if there was any real or substantial damages caused by their non-compliance with the contract, but they perhaps did understand that if there was no such damage, even though the letter of the undertaking was not fulfilled, there should be no recovery; and thus the idea of nominal damages merely was not presented, if not wholly excluded. To this extent only, if at all in this respect, were the instructions erroneous.

But it is well settled that a judgment will not be reversed merely to permit nominal damages to be recovered, and when this evidence is all considered and it is remembered that the case had been tried twice—the first jury not being able to agree, and the second finding for the defendants—we are not impressed with the belief that the ends of justice require us to reverse the case for this error, if error it is.

- Counsel urge, however, that the instructions given for defendants were faulty, because one of them contained this expression: “ And if the jury further believe that earth was thrown against the wooden portion of said dam in such a quantity as to make the same substantially a dam of earth,” etc., and another the following: And that the dam as constructed was sufficient to hold water and prevent the same from passing through, and was of the requisite height.” It is argued that the court thereby left the construction of the contract to the jury. We think the objection untenable.

By these expressions, in connection with the context, the court construed the contract, and left the jury to find as a fact whether the dam, as completed, was substantially of earth and of the height required, which, of course, was six feet. The judgment will be affirmed.

Judgment affirmed.


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    C. Aultman & Co. v. James A. Henderson.

      Sales—Engine—Contract for Shipment and Delivery of—Refusal to Accept—Omission of Condition—Fraud—Practice Act, Sec. 34—Warranty —Breach—Evidence—Damages.

    1. An order calling for the shipment of an engine is complied with by an offer to deliver one in the town where the same was written.
    2. Evidence can not be admitted to prove that a provision was fraudulently omitted from an order, in the absence of verification by affidavit in conformity with Sec. 84 of the Practice Act.
    8. Where a contract of sale contains provisions fixing the rights of the parties thereto, in case, after trial, the machine in question fails to comply with the warranty contained therein, the purchaser can not decline to receive the same upon the ground that the year before, in other hands, it failed to work properly.
    4. A machine that has been repaired will be presumed to be in working order and it is the duty of a person ordering such a machine to give it a fair trial.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Lane & Cooper, for appellants.
    Messrs. T. M. Jett and A. N. Kingsbury, for appellee.
   Wall, J.

This was an action of assumpsit by the appellant against the appellee.

The declaration contained a special count oil a written instrument signed by the defendant, bearing date July 5, 1888, whereby he requested the plaintiff to ship to him, in care of the agent of plaintiff at Harvell, Illinois, on or before July 12, 1888, one No. 12 Monitor engine, with self guide, and the fixtures and extras usually furnished by plaintiff, in consideration whereof he agreed to receive said engine on arrival, subject to the conditions of the warranty printed below, and to pay $600 at the time and place of delivery, and to deliver an old engine of his as additional payment. The money payment was to be made by the execution of his two promissory notes, payable at certain specified times and bearing six per cent interest, which notes were to be secured by a mortgage on the property sold. It was averred that the plaintiff furnished the engine at the time and place named in the contract, and that defendant refused to accept and pay the money or execute the notes and deliver the old engine.

The pleas were, first, the general issue; second, a special plea averring a breach of warranty in this, that the engine was not well constructed and would not work properly. The case was tried by the court, a jury being waived, and the issues were found for the defendant, upon which judgment went against the plaintiff for cost. Error is now assigned upon the rulings of the court in reference to the admission of evidence and in s) finding the questions of fact arising on the evidence.

The plaintiff proved the written order set out in the declaration and that an engine such as described in the order was at the place named on and before the day specified. It appeared that this engine was there when the contract was made and the order signed, and that as a matter of fact the contract was with reference to this particular engine. It is insisted by appellee that the plaintiff failed to prove a compliance with the order which called for the shipment by the plaintiff to the place named of the engine described, and that such a request would not be complied with by furnishing at the place named an engine which was already then in the plaintiff’s possession.

The order does not specify where the engine is to be shipped from nor by what route it shall come, and manifestly these were matters of no importance to the defendant if he got, at the time and place named, the article he bargained for.

By the mere letter of the order it required the plaintiff thereafter to ship to the place named, by the route to be selected by the plaintiff, the engine therein described. This would imply that the agency of a carrier was to be called in aid and that the engine was thereby to be transported some distance, long or short, to the place named—but it would hardly be reasonable to say that the plaintiff could not have performed this transaction by an agency of his own without resorting to the service of a carrier, nor that it was necessary that the article should have been brought from any particular place.

The spirit of the contract and the essential point in this respect was that at the time and place fixed, an article as described should be in readiness for the defendant. Counsel for appellant argue that there was an attempt here to modify and vary the terms of the writing by parol. The argument is somewhat plausible but unsound. It does appear that the parties contracted in reference to this very engine and while the order called for an engine to be shipped, it was intended all the while to refer to this engine; hut this is unimportant. The real question is as already stated, whether the plaintiff substantially complied with the contract by furnishing an engine which had already been shipped, and was there when the order was made. This question must be answered affirmatively, and it is not necessary to consider the parol proof that the parties intended the contract to refer to the engine in controversy. By the proof stated the defendant was placed in default, and he was called upon to show some excuse for his non-compliance with the contract.

This he sought to do by showing, first, that the written order omitted a provision mutually agreed upon that the defendant should have the right to countermand the order by or before the 12th of July; that this omission was through the fraud of plaintiff’s agent and unknown to defendant, and that the defendant did countermand the order within the time ; and, second, that the engine would not work well. The defendant testified that he reserved the right to countermand the order, and that the order was so read to him by the agent of the plaintiff by whom it was written out, and that while defendant had a copy and could read, yet he did not read it before signing nor after, but supposing he had the right to countermand, he did so with'n the time limited.

There is no dispute that he countermanded, but the question is whether he had such right. He certainly had not under the terms of the order as written, nor would it be competent by oral proof to vary the writing so as to show that a positive and definite provision was really subject,to a condition rendering it wholly optional with the defendant whether to make the purchase or not.

The offered proof tended to show that the instrument was wholly void and not binding upon the defendant, because a substantial feature of it was fraudulently omitted by the agent of the plaintiff. If so, and if defendant exercised proper diligence to know the contents of the paper before signing it and was deceived, he might well place his defense upon the ground that he did not execute the order as it now appears. But to do this it was necessary that he should verify his plea by affidavit, according to the provision of Sec. 34 of the Practice Act. In Lockridge v. Nuckolls, 25 Ill. 178, the Supreme Court say, that under this section “ it has been uniformly held that the party is not permitted to deny the execution of the instrument, or put the other party to its proof, except in the mode prescribed. Until that provision is complied with, the mere production of the instrument proves itself without further evidence. And when admitted in evidence the maker has no right to deny or rebut by evidence the genuineness, of its execution.” The plaintiff objected to this evidence but was overruled. There being no plea verified by affidavit denying the execution of the instrument in writing sued on, this evidence was incompetent, and is not to be considered in support of the defense.

As to the second ground, the evidence tended to show that the engine would not work well when in the possession of one Caldwell, a former purchaser, by whom it was returned to the plaintiff. This was during the previous year, and there was some conflict in the proof as to the performance of the engine at that time. It appeared that since then it had been overhauled and put in good order, and the fair inference is, that whatever defects there may have been when in Caldwell’s possession, it was reasonably fit for use' when the defendant bargained for it. On referring to the terms of the order it will be found that, in case the engine, after trial, failed to fill the warranty, the purchaser was required to notify the agent and an opportunity was to be afforded to remedy the defect, and if it could not be made to fill the warranty, that part which failed should be returned and another furnished, which should perform the work, or the money and notes should be returned and no further claim should be made on the vendor. In view of this provision of the contract, the defendant was not justified in refusing to take the engine because it had not worked well when in the hands of Caldwell the year before-It had since been put in repair and was apparently and presumably in condition for effective service, and under the plain terms of the contract it was the duty- of the purchaser to take it and give it a fair trial.

If it failed the vendor would have the right to make it good and sufficient or to return the consideration. Had it been palpably worthless, so that any effort to work it was sure to fail, and useless expense and delay sure to follow, the case would be quite different, and in that event it may be the law would warrant the course taken by the defendant. Upon the facts as they appear in the record, we are of opinion the finding should have been for the plaintiff. It is urged, however, that at most, the plaintiff was entitled to merely nominal damages, and that the judgment ought not-to be reversed to enable such recovery. This position rests upon the assumption that the damages would be the difference between the contract price and the market value of the article. This engine was not a new one and if it were it does not appear that it would have had a market price at the place of delivery.

It is not proved nor is it reasonable to infer that a secondhand article had a market value capable of ascertainment. It is probable that while it might have been substantially as useful as if new, yet it could not readily be sold because it was not new. It is therefore impossible to say that if the plaintiff was required to keep the engine his damages would be only nominal. We are not to be understood, however, to hold that plaintiff was, upon the facts stated, required to retain the property and recover damages for the failure of defendant to receive and pay for it.

Where a vendee sues a vendor for the non-delivery of goods, the measure of damages is usually the difference between the contract price and the market value at the time the goods should have been delivered.

Where a vendor sues a vendee for goods which have been delivered he may of course recover the contract price, but where there has been no delivery the vendor may store the goods for the vendee, giving him notice that he has done so and recover the full contract price, or he may keep the goods and recover the excess of the contract price above the market price at the time and place of delivery, or he may upon notice to the vendee proceed to sell the goods in their then condition, for the best price obtainable, and recover the loss if the goods fail to bring the contract price. Bagley v. Findlay, 82 Ill. 524; Parsons on Contracts, Vol. 2, page 484, 3d Ed.; Sedgwick on Measure of Damages, 3d Ed., 296.

As the case must be tried again we need express no opinion as to the proper measure of damages in the event of recovery. The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    William Sharp et al. v. H. A. Smith et al.

      Master and Servant—Labor and Material—Recovery for—School Directors—Liability as Individuals.

    In an action upon a contract containing the names of certain individuals, the language thereof indicating that they were at the time of its execution school directors of the district in question, but not that they were acting in such capacity, this court holds that they were individually liable thereon, and declines to interfere with the verdict for the plaintiffs.
    [Opinion filed February 14, 1890.]

      Appeal from the County Court of Moultrie County; the Hon. H. W. Minor, Judge, presiding.
    Mr. John R. Eden, for appellants.
    The law seems to be well settled, that where the officers of a municipal corporation enter into a contract or engagement in connection with a subject fairly within the scope of their authority, it shall be intended to have been done officially, unless they made an express agreement to become personally liable, though they exceed their own authority. Duncan v. Niles, 32 Ill. 532; Mann v. Richardson, 66 Ill. 481; Broadwell v. Chapin et al., 2 Ill. App. 511; Burrows on Public Securities, page 12.
    Mr. F. M. Harbaugh, for appellees.
   Conger, J.

This was an action of assumpsit with special count upon the Avritten contract which appears beloAv, and common counts for work and labor, and the money counts, etc. Plea general issue, trial by the court and judgment for appellees for $224.60.

Upon the trial appellees offered in evidence the following contract: “This contract made and entered into this 11th day of August, A. D. 1888, by and between Hugh A. Smith and Riley W. Creech, parties of the first part, and William Sharp, Joshua Ooplin and Christopher Monroe, directors of district No. tAVO (2) in township No. fourteen (14), range five (5) east of the 3d principal meridian, in the county of Moultrie and State of Illinois, parties of the second part, Avitnesseth that parties of the first part hereby agree to furnish all material, and in good, workmanlike manner build and fully complete a brick school house in said district, according to plans and specifications herewith made a part of this contract, subject to any alterations mutually agreed upon, before or during the erection of said building. In consideration of the above agreement, the parties of the second part agree to and with the parties of the first part, to pay them the sum of $924.60 in the following manner: to pay for brick and lumber as the same is delivered upon the ground ; balance upon the completion and acceptance of the said building. Subscribed to by us this day and date above written.

It was agreed between the parties on the trial that prior to the making of said contract, the legal voters of said district Mo. 2 had at a legal election voted the sum of $700 to build a school house in said district, and that appellees had built the house according to contract, and had been paid to the extent of $700 by orders drawn by appellants as school directors of said district Mo. 2 on the township treasurer of said township; that soon after the completion of the school house Sharp and Coplin (Monroe having resigned) issued an order as directors on the treasurer for the balance remaining due upon the contract, and delivered the same to appellees, but that the payment of the same was enjoined by bill brought by some of the taxpayers of the district, so that such order never was paid. Appellants are sued as individuals and the court below held them liable as such, and the correctness of that judgment depends upon the question whether the contract binds them individually or only the district of which they were directors.

We are inclined to think that appellants are individually liable upon the contract in question under the rule as announced in Powers v. Briggs, 79 Ill. 493. In that case the names of the promisors did not appear at all in the body of the instrument, the language being: “We, the trustees of the Seventh Presbyterian Church, promise to pay,” etc., while in the case at bar the names of appellants appear in the body of the contract as contracting parties, followed, it is true, by the words, “Directors of District Mo. 2,” etc., but these words can only be regarded as descriptive. There are no words in the contract implying an undertaking on the part of the district. The latter is not assumed to- be acting by or through appellants, nor does it appear they are acting for or on behalf of the district.

The language indicates that appellants were directors of the district when they executed the contract, but not that they were acting for and on behalf of the district, or intending to make the instrument the contract of the district. The case is not like that of New Market Savings Bank v. Gillet, 100 Ill. 254, for in that case the language used in the body of the note and attached to the signature was the proper corporate name of the society for and in the name of which the signers thereof, as trustees, were acting. The case at bar would have been like that, if the language used had been, instead of the individual names of appellants, the corporate name of the district, viz.: “School Directors of District No. 2,” etc.

We do not mean to be understood that the mere omission of the word “ school,” has changed the liability, for had the contract represented one of the contracting parties as directors of district No. 2, omitting their names from the body of the contract, it might be still regarded as the contract of the district, notwithstanding the omission of the word “ school.”

The judgment of the County Court will be affirmed.

Judgment affirmed.


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    Charles A. Williams v. Chicago & Alton Railroad Company.

      Railroads—Statutory Signals—Crossings—Personal Injuries—Adjacent Field.

    The plain object of the statute requiring railroad companies to give signals at highway crossings is to protect persons who may be about to cross the track and to obviate danger of collisions. Failure to comply with the statute does not render a company liable to a person injured in an adjacent field by reason thereof.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.

      Mr. Thomas F. Tipton, for plaintiff in error.
    Messrs. Williams & Capen, for defendant in error.
   Wall, J.

The declaration alleged that plaintiff was plowing in a field adjacent to the defendant’s railroad track and a short distance from the crossing of a public highway; that a train approached from the northeast and failed to give the statutory signal by sounding whistle or ringing bell for a distance of eighty rods before the crossing was reached; that between the point where the plaintiff was at work and said crossing there was a curve in the track and by reason thereof and of intervening trees and vegetation the train was not visible from plaintiff’s standpoint until it had passed the crossing and was quite near him; and because of its sudden appearance and proximity without warning his horses became frightened, causing him to receive a serious bodily hurt.

Liability is predicated upon the assumed duty of the company to give said signal for the warning and protection of the plaintiff under the circumstances stated and upon negligence from the omission to do so. The Circuit Court sustained a demurrer to the declaration upon which ruling error is assigned. The statute reads as follows, Par. 68, Ch. 114, S. & C. Stat. 1935:

“Every railroad corporation shall cause a bell of at least thirty pounds weight and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.”

The declaration alleges that it was negligence not to give the signal, and by reason of the signal not being given the injury was occasioned, and it seems to be argued that as the demurrer admits the truth of the matter so alleged, it admits negligence. The demurrer admits the truth of all matters of fact which are well pleaded; but not necessarily all conclusions that may be therein drawn from stated facts. The point here is whether the failure to comply with the statute is negligence with respect to one situated as was the plaintiff.

It has uniformly been held that with respect to persons and animals crossing or about to cross the railroad over the highway the omission to give the signal was negligence and if it occasioned injury at such crossing an action would lie, and in T., W. & W. R. R. Co. v. Furgusson, 42 Ill. 449, recovery was sustained where an animal was killed, not on the crossing, but a short distance from it and in the direction in which the train was approaching, in an open unfenced space within the limits of a station. There the.court regarded the case as being within the same consideration as though the animal had been on the crossing and seemed to place no little stress upon the provision in the statute then in force that the road should “be liable for all damages which shall be sustained by any person by reason of such neglect.” It is to be noted that in the revision of 1874, this clause was omitted.

In Rowena v. St. P., M. & C. R. R. Co., 62 Wis. 178, such a statutory provision was held to afford its protection to a traveler on a highway running parallel with the railroad, and other cases somewhat like the Wisconsin case can be found in other State reports. On the other hand it was held in O’Donnell v. Providence & C. R. R., 6 R. I. 211, that such a statute is intended to protect persons about to cross the railroad at a highway, and can not be made the ground of an action by one who is injured while walking along the railroad track, not at a crossing. A similar view was held in E. T. V. & G. R. R. Co. v. Feathers, 10 Lea, 103, where the plaintiff was riding horseback along a highway running near to and parallel with the railroad and was injured by reason of the fright of the horse occasioned by the unannounced appearance of the train. So also in St. L. & S. F. R. R. Co. v. Paine, 29 Kan. 160, where the plaintiff’s team being near the railroad, but not on or approaching the crossing, was frightened by the train, no signal of its coming being given. Thompson on Neg., Vol. 1, page 452, and cases there cited; Shearman and Redfield on Negligence, Sec. 485.

In the case of W., St. L. & P. R. R. Co. v. Neikirk, 15 Ill. App. 172, the plaintiff had been working with his team on the right of way of the railroad some distance from a highway crossing and in attempting to cross the railroad at a private crossing the team was run upon by a train which was passing, and it was insisted that because the signal had not been given before reaching the highway crossing there was negligence producing the injury and of which the plaintiff might rightfully complain, as, if the signal had been given, his attention would have been attracted to the approach of the train and the accident thereby avoided; but the court remarked “ The 'statute requiring the ringing of the bell or the blowing of the whistle on approaching a highway crossing was designed for the protection of persons crossing the track on the highway and not for the safety of those crossing at a distance therefrom over private crossings constructed by the railroad for their convenience.”

In C. & E. I. R. R. Co. v. McKnight, 16 Ill. App. 596, the person injured was riding on a han Icar over the defendant’s track, and was struck by a train coming in the opposite direction and it was claimed there was negligence in the failure to give the signal before reaching a highway crossing. But the court said: “The deceased was not injured at the crossing and does not come within the meaning of that statute. That statute was intended to protect persons in crossing and has no reference to cases like this where the injury occurred on the railroad track of appellant. The omission to comply with the statute can not in a case like this be set up as a ground of recovery.”

The principle involved in the two cases last cited seems to be substantially the same as in the present, and we are content with the conclusions therein. The statute simply makes it the duty of the company to give the signal when approaching a highway crossing. It is to begin at the distance of eighty rods from and to continue up to the crossing. The plain manifest object was to protect by a required warning those who might be about to cross the railroad over the highway, so that the danger of collision at such crossings might be obviated.

The case of a person working with a team near the railroad, but not about to cross over a highway, who might, or might not, if he heard the signal, have secured his team or got a safe distance away, was evidently not in mind and not intended to be provided for. It would be difficult, if not impossible, to make the statutory provision uniformly useful as to persons situated as was the plaintiff, and in other similar situations. It is practicable to apply it uniformly in all cases at highway crossings.

We think the construction contended for by plaintiff strained, unnatural and not within the intention of the legislature, and that the Circuit Court properly held that no cause of action was disclosed by the declaration. The judgment will be affirmed.

Judgment affirmed.


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    Albion Wheeler v. Albert Fishell et al.

      Sales—Patent Right—Construction of Contract—Acceptance by Parties Not Signing—Delay—Reasonable Time—Propositions of Law.

    In an action brought to recover a sum named in a contract as the consideration of a deed of the right to an invention within a certain specified territory, this court holds, that under the same, the tender of a deed was necessary to complete the right of action for the sum in question; that the acceptance of the contract by defendants, though without signing it, made it binding on them upon tender within a reasonable time and not a mere option, and that the same was not made within such time.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Pike County; the Hon. C. J. Scofield, Judge, presiding.
    Mr. J. S. Irwin, for plaintiff in error.

      Unilateral contracts or by deed poll are binding. Bishop on Contracts, 55, 202, 1990; 2 Pars. Contracts, 290, n. 1; Conger v. C. & R. I. R. R. Co., 15 Ill. 366; Esmay v. Gorton, 18 Ill. 483; McFarlane v. Williams, 107 Ill. 33; Flanders v. Merrill, 38 Iowa, 583; Schmidt v. Glade, 126 Ill. 485.
    A contract or deed can not be delivered to the grantee as an escrow. Seely v. Lewis, 5 Gilm. 30; McCann v. Atherton, 106 Ill. 31; Stevenson v. Crapnell, 114 Ill. 19; Baum v. Parkhurst, 26 App. 128; Moss v. Ribble, 5 Cranch, 351.
    The words “sell” and “transfer,” in an assignment, amount to a deed: Railroad Co. v. Trimble, 10 Wall. 367; and no new deed or additional conveyance is necessary to perfect title. Gaylor v. Wilder, 10 How. 467 and 477; Railroad Co. v. Trimble, 10 Wall. 367.
    As the original contract was an absolute conveyance to Fishell & Co., of the territory named, they could not rescind without a tender of reconveyance; even when the first default is on the part of the opposite party, the party wishing to rescind must offer to return what he has received. Stevens v. Bradley, 22 Ill. 244; Graham v. Halloway, 44 Ill. 385; Staley v. Murphy, 47 Ill. 241; Anderson v. White, 27 Ill. 57; Buchenau v. Horney, 12 Ill. 336. The rescission must be in in toto, and each party placed in statu quo. Wolf v. Dietzsch, 75 Ill. 205; Harzfeld v. Converse, 105 Ill. 534; Smith v. Brittenham, 98 Ill. 188.
    Messrs. Wike & Higbee and Orr & Crawford, for defendants in error.
   Wall, J.

On the 22d December, 1883, plaintiff in error executed and delivered to defendants in error the following instrument in writing:

“ Whereas, I, Albion Wheeler, of Bidgeway, county of Winnishiek, State of Iowa, have invented a certain new and useful invention, or improvement, in a Loose Draft Equalizer, for which I am about to make application for letters patent to the United States; and whereas, Albert Fishell, W. T. Smith and L. B. Horner, of Pittsfield, county of Pike, and State of Illinois, are desirous of acquiring an interest and ownership in said invention, together with any improvements on the same in the letters patent to be obtained therefor in all of the United States except Wisconsin, Minnesota, Dakota, Montana, Wyoming, Idaho, Washington, Oregon, and the five northern tiers of counties in Iowa, and that part of Nebraska, Utah, Nevada and California north of parallel forty-one, north latitude, being the same territory as sold to them this day of a Tongue Evener, under patent No. 241,105. Now, therefore, to all whom it may concern, be it known that for and in consideration of one dollar in hand paid to me, the receipt of which is hereby acknowledged, and an additional $1,000 to be paid to me upon the delivery of the deed, I, Albion Wheeler, have sold, assigned, transferred and set over, and by these presents do sell, assign, transfer and set over unto Albert Fished, W. T. Smith and L. B. Horner, the full and exclusive right to said invention, together with all improvements on the same, in the territory named and fully described in the specifications, prepared and executed by me preparatory to obtaining letters patent of the United States therefor.
“ Witness my hand and seal this 22d December, 1883.
“Albion Wheeler, [seal]”

Which, as the proof tends to show,was then and there accepted by defendants in error.

The plaintiff in error had then no patent for the invention nor did he make application therefor until May 26, 1885. The patent was issued January 5, 1886.

On the 25th June, 1885, plaintiff in error wrote to defendants in error advising them of the grant of letters patent (which was untrue) and asking when they “ would prefer to have the deed issued out of the patent office so as to make the best of it as to time to be ready to work it while it is new.” Fishell and Smith testified they received no such communication. Horner was not served and did not appear in the trial below.

On the 24th February, 1886, plaintiff in error executed a deed to defendants in error for the territory named in the contract and caused the same to be tendered not long afterward to Fishell and Smith, at the same time demanding the money specified in the contract, $1,000. The payment not being made this suit was brought. The case was tried by the court, a jury being waived, .and the issues were found for defendants. Judgment followed accordingly, from which a writ of error is prosecuted to this court by the plaintiff.

It will be noticed the contract specifies no time within which it is to be completed, and in such case the law would imply that it should be within a reasonable time. What would be a reasonable time depends upon circumstances, all of which should be taken into account including the relative situation of the-'parties and the nature of the subject involved. It is claimed by the plaintiff in error that the contract amounted to an assignment or conveyance of the patent for the territory mentioned and that it was unnecessary to make any other deed or conveyance therefor. The invention at that time was not perfected in the mind of the inventor as appears from the testimony, and the contract provided in express terms that a deed was to be made, when and not before the price was payable, and when and not before, as a necessary consequence, the right of the purchasers would be complete.

Defendants insisted and offered evidence to show that the contract intended merely to give them an option to buy or not at the price named, but as we construe it, the provision was for an absolute sale; and by accepting the contract, though they did not sign it, they became bound by its terms, and were required to pay the price named and take the deed, if tendered within a reasonable time.

If, however, the court trying the case was warranted by the evidence in concluding that the patent was not obtained and the deed therefor was not tendered within a reasonable time in view of all the circumstances, then the defendants were entitled to judgment. And this we consider the vital question in the case, upon the solution of which the whole controversy depends. The application was not filed in the patent office until May 26, 1885, seventeen months from the date of the contract, and the deed was not tendered to defendants until March 7,1886, more than two years and two months from the date of the contract. Considering the evidence as it appears ‘in the record, we can not say the court was without warrant in the view that this delay was unreasonable. On the contrary, we are inclined to agree with such conclusion.

It might well be supposed that ordinary business men would not expect to be held in a state of uncertainty for so long a period—not only keeping the money in readiness but so ordering their other arrangements as to be in condition to take hold of the patent and push it while it was new. More especially might this be difficult and inconvenient, if not wholly impracticable, in the case of three men whose business relations and personal affairs might be greatly changed within such a time. Upon the merits the finding is according to, or at least supported by the proofs.

It is complained that the court modified the first proposition of law presented by the plaintiff by adding the qualification that the deed should be tendered within the time contemplated by the agreement or within a reasonable time.” The modification was right. We find no error in the record and the judgment will be affirmed.

Judgment affirmed.


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    Thomas F. Harwood et al. v. William J. Brownell et al.

      Mechanic’s Lien—Petition to Enforce—Implied Contract—Materia Is Pot Furnished within One Year—Judgment Creditors—Landlord—Priority of Liens—Sec. 3, Chap. 82, R. S.

    Upon a petition to enforce a mechanic’s lien, it being stipulated that no liens that any of the parties holding claims against the common debtor might have, should be lost or postponed by reason of delay during the pend-ency of the suit, and that the rights of the respective parties should be determined in the cause, this court holds that the stipulation was a sufficient basis on which to afford relief, and found a decree determining and enforcing the rights of the parties without the necessity of cross-bills, and that the decree of the court below denying the petition, was supported by the evidence, the materials in question not having been furnished within, one year, as required by Sec. 3, Chap. 82, R. S.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of McLean County; the Hon. A. Sample, Judge, presiding.
    . Messrs. Herrick, Lugas & Spencer, for appellants Harwood & Son,
    Mr. Miles K. Young, for appellant E. B. Steere.
    Messrs. A. E. DeMange, Neville & Lindley and John E. Pollock, for appellees.
   Conger, J.

T. F. Harwood & Son filed a petition to enforce a lien for lumber and other materials furnished the Bloomington Base Ball Association, which were used in improving the grounds of the association, making fences and an amphitheater. To this petition the association made no defense and was defaulted. Brownell, Tillotson and Wochner answered, claiming the same property by virtue of a chattel mortgage given them on the property by the association, while Mason and Morse answered, setting up a claim to a lien upon the same property by virtue of a judgment and execution against the association. E. B. Steere answered, denying the claim of petitioners and setting up that he was the owner of the land upon which the improvements had been mude, and had leased the same to the association, and also claimed that for non-payment of rent it had forfeited the lease, and was entitled to hold said improvements. It was stipulated that no liens any of the parties might have should be lost or postponed by reason of delay during the pendency of the suit, and that the rights of the respective parties should be determined in the cause.

Hpon final hearing the court held that Harwood & Son were not entitled to a lien; that Steere’s claim was not sustained by the evidence; that the chattel mortgage was the prior lien; that the execution in favor of Mason and Morse was the second lien; and the execution in favor of Steere and McLean was the third lien; and made the proper decree to enforce the rights given the respective parties. From that decree Harwood & Son and E. B. Steere both appealed.

T. F. Harwood & Son were not entitled to their lien because more than one year elapsed from the commencement of the delivery of the materials, until they were all delivered. There was no express contract, but the materials were to be furnished from time to time as ordered, and charged for at reasonable prices; hence the contract was an implied one.

Sec. 3, Chap. 82 Rev. Stat., says: “If the work is done or materials are furnished under an implied contract, no lien shall be had by virtue of this act, unless the work shall be done or the materials be furnished within one year from the commencement of the work or the delivery of the materials.”

The date of the first delivery of materials was May 22, 1887, while that of the last was May 31, 1888, being more than one year; hence they were not entitled to a lien and the court properly so held. After a careful examination of the record we are satisfied that the decree was warranted by the proofs and should be affirmed.

The stipulation was, we think, a sufficient basis on which to afford the relief and found the decree, without the necessity of cross-bills.

Judgment affirmed.