text:
    Eva E. Arms, Adm’x, etc., v. The City of Knoxville.

      Municipal Corporations—Personal Injuries—Bursting of Cannon in Street—Pleading—Negligence—-Responsibility of City.

    1. In a declaration, in an action against a city to recover damages for the death of a person killed by the bursting of a cannon in a public street, the allegation that the defendant did knowingly, wrongfully and negligently permit, etc., etc., will, taken in connection with the rest of the declaration, be construed to mean that the permission charged was the failure of the city to interfere and stop the acts complained of and not a postive permission given in advance.
    2. The negligence of police or peace officers in failing to stop the firing of a cannon, known to be dangerous, upon the streets of a city, does not render the city liable to the administratrix of a person killed as the result of such negligence.

      [Opinion filed December 18, 1889.]
    In error to the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. McKenzie & Wood, for plaintiff in error.
    The motion in arrest should not have been allowed so long as the declaration set out the substance of a sufficient cause of action, and contained no patent intrinsic defect of substance. Evans v. Lohr, 2 Scam. 511; Culver v. Third National Bank, 64 Ill. 528; Jones v. People, 53 Ill. 366; Commercial Ins. Co. v. Treasury Bank, 61 Ill. 433.
    The cases cited by defendant in error in support of his claim, that the words of the declaration must be construed most strongly against the pleader and most favorably to the defendant, and that the charge in the declaration that defendant “ knowingly, wrongfully and negligently did permit,” can only be construed as charging that defendant did not prevent, the court will notice were not construed after verdict and upon motion in arrest, but were construed upon demurrer. See Maenner v. Carroll, 46 Maryland, 215; Robinson v. Greenville, 42 Ohio St. 625.
    The law is that upon motion in arrest, a party making such motion, by so doing confesses that the plaintiff has sustained his declaration by all proof of which his case is susceptible under his declaration.
    Before verdict the rule is somewhat strict against the pleader. After verdict every intendment is in favor of the verdict and of the pleading under which it is obtained. Under such principles the intendment in this case is, there was express license alleged and proven. The defendant in error admits that in such case the city is liable. A city in the management of corporate property must be held to the same responsibilities that attach to individuals for injury to the property (of course life and limb) of others. Chicago v. Brennan, 65 Ill. 160; Nevins v. City of Peoria, 41 Ill. 502; City of Joliet v. Harwood, 86 Ill. 110; City of Joliet v. Seward, 86 Ill. 402; 99 Ill. 267; Stanley v. City of Davenport, 54 Ia. 465; Rushville v. Adams, 107 Ind. 476; Chicago v. Hoy, 75 Ill. 530.

      The defendant in error cites upon the merits five cases only.
    Of these Lafayette v. Timberlake, 88 Ind. 330, and Falkner v. City of Aurora, 85 Ind. 130, hold a city is not liable for not preventing coasting. In Falkner v. Aurora, the court puts its decision upon this ground: The sport in which they (the coasters) were engaged was not necessarily a nuisance; it might have been carried on innocently. See also Hutchinson v. Concord, 41 Vt. 271; Burford v. Grand Rapids, 53 Mich. 98.
    Of the five cases cited by defendant in error upon the merits the two coasting cases are inapplicable. The case of Robinson v. Greenville, 42 O. St. 625, passed off on demurrer, but it declares cannon firing in the streets an intolerable nuisance, and suggests that if actively permitted or licensed the city would be liable.
    A city is bound to prevent a nuisance in its streets, rendering the same unsafe or insecure, if it can do so by ordinary and reasonable care and diligence. Taylor v. Cumberland, 64 Md. 68.
    Ball v. Town of Woodbine, 61 Iowa, 85, went off, upon demurrer. The gravamen of the charge was the failure to prevent a violation of an ordinance, not that “ the town knowingly, wrongfully and negligently permitted the needless and dangerous firing.”
    As for the case of Norristown v. Fitzpatrick, 94 Penn. St. 121, the plaintiff in error will not fear its effect. The Supreme Court of Pennsylvania is not among that class of courts that, while in the minority, seem to hold the safer and more sensible rule upon the question of municipal liability. Nevins v. City of Peoria, 41 Ill. 502.
    Mr. Frederick A. Willoughby, for defendant in error.
   Upton, P. J.

This was an action commenced in the Knox County Circuit Court by the plaintiff in error, as administratrix of the estate of Henry W. Arms, deceased, against the defendant in error, for the alleged knowing, wrongful and negligent permitting of divers persons to assemble on its streets, and fire a piece of cast iron bored out as a cannon, which was dangerous to life and limb of the passer by, as is alleged, and by means of which firing the cannon burst when so fired and a fragment thereof struck and killed Henry W. Arms, plaintiff in error’s intestate, while he was lawfully upon the street and in the exercise of due and pro per care and caution as is alleged. Plea of the general issue and trial by a jury who found a verdict for plaintiff in error for §2,300. A motion in arrest of judgment was interposed which the court sustained. The case comes here on writ of error, and the only question presented by the record before us is, whether the declaration sets out substantially a cause of action.

It will be seen upon"examination of the plaintiff’s amended declaration as set out in the record, that the only allegations of culpability of defendant in error are contained in the third and fifth paragraphs thereof. The third alleges that the defendant did “knowingly, wrongfully and negligently permit divers persons * * * to carelessly, dangerously, needlessly, and to the danger of life and limb * * * load and fire a piece of cast iron bored out as a cannon * * * which said cannon * * * loaded and fired as aforesaid was dangerous to life and limb * * * all of which defendant well knew,” etc. This paragraph wholly fails to disclose the character of the “permission” charged, whether active, (i. e.) given in advance of the firing complained of by actual consent, or whether it consisted in mere passiveness or non-interference with the firing while going on. In the preceding clause of the declaration it is alleged that it was the duty of the defendant in error “ to prevent the use in the street of * * * all deadly and- dangerous machinery,” etc., which would indicate that the pleader intended to charge a failure to suppress, rather than a previous consent given, and the phrase, negligently permit,” contained in the third paragraph of the declaration which we are now considering would further indicate such meaning was intended; which would be entirely consistent with the use of the word “permit,” as defined by lexicographers, i. e., “not to prohibit or prevent.”

Again, the well known rule that the allegations of the pleader are to be taken most strongly against himself, would seem to justify the construction that the "permission" charged in the declaration consisted in the negligent failure of the city to interfere with and stop the firing complained of. Such construction would seem justified by the authorities. In Robinson v. Greenville, 42 Ohio St. 625, it was held that notwithstanding the common rule that pleadings must be construed most strongly against the pleader, has been abrogated in that State, still in an action against a municipal corporation to recover damages for injuries sustained from the discharge of a cannon in a public street, an allegation in the petition that the authorities of the corporation “had negligently and carelessly given permission to such persons to fire the cannon,” may be construed in view of the whole pleading, as an allegation that the authorities took no steps to prevent such firing.

In Maenner v. Carroll, 46 Md. 215, the court say: “Here the allegation is not that the defendants cut the excavation and' left it in a condition dangerous to persons passing along the highway, but that they 'permitted' others to do so. How permitted ? The sufficiency of this allegation turns upon the word ‘permitted.'

In what particular sense it was used by the pleader is not altogether certain. It may be for aught that appears on the face of these counts that the defendants permitted the excavation by their mere silence and failure to interfere, or by not taking active measures to prohibit the making of the excavation over the lot and across the highway. When there is want of certainty in the allegation of a pleading, the general rule is that the sense of the averment is to be taken most strongly against the pleader (Chit. Pl. 237, 238), and giving to the defendant the benefit of this rule, the counts under consideration fail to state a sufficient cause of action.”

The fifth paragraph of the declaration, which we will now consider, avers that “ the said Henry W. Arms was then and there lawfully upon the street in the said city of Knoxville, and was exercising due care and caution, and was not negligent; but that the failure to 'remove’ the said nuisance and dangerous cannon firing from the public streets was negligence upon the part of the defendant, and by reason of such, negligence, upon defendant’s part the said Henry W. Arms lost his life.” It would seem evident from this averment that the negligence of the city for which this action is brought was the failure of the city to stop the cannon firing, not a previous permission to fire it. We conclude, therefore, that the negligence alleged in the declaration and herein complained of, whereof the intestate lost his life, was the negligence of the city in not stopping or preventing the firing of the cannon.

If we are correct in this conclusion, it follows that the cause of action as set forth in the declaration amounts to this: that the police or peace officers of the city of Knoxville were remiss in duty and therefore guilty of negligence in not stopping the firing of cannon upon the streets of that city, which such officers knew to be dangerous to life and limb; for it must, we think, be conceded that a municipal corporation can act only through its proper officers. This presents the question whether such negligence on the part of its police or peace officers can furnish a ground of private action against the city; in other words, is the neglect of the peace or police officers of the city of Knoxville to put a stop to the dangerous breach of the peace here complained of, a matter for which the city is lialfie in damages ?

In Oliver v. Worcester, 102 Mass. 489, Justice Gray, speaking for the court, says: “The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, as the management of property and rights held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public.”

In the one case no private action lies unless it be expressly given; in the other there is an implied or common law liability for the negligence of the officers in the discharge of such duties. Dillon, Mun. Cor., Vol. 1, Secs. 10, 11, 39 and notes; Oliver v. Worcester, 102 Mass. 489; Detroit v. Cony, 9 Michigan, 165; Dillon, Mun. Cor., Vol. 2, Secs. 761, 778, 779, and notes to cases cited.

The same principle is announced in the President and Trustees of Town of Odell v. Schroeder, 58 Ill. 353, where it is held that a municipal corporation is not liable for the illegal and unauthorized acts of its officers in enforcing an ordinance public in its character.

In Wilcox v. The City of Chicago, 107 Ill. 334, it was held that cities are not liable for the negligent acts of the officers or men employed in the fire department of that city whilst in the discharge of their duties; that the members of that department although appointed by and holding office at the pleasure of the corporation are not the agents and servants of the city, for whose conduct it is liable, but they act rather as the officers of the city charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given. Citing Dillon on Municipal Corporations, and numerous other cases determined in New York, Massachusetts, Connecticut, Iowa, Mississippi, Ohio, Pennsylvania and California, in support of the text.

It has been held repeatedly by most eminent authority that police officers are not agents or servants of the corporations appointing them, within the rule making the corporation answerable for their acts. Shearman and Redfield on Negligence, 3d Ed. Sec. 139, and cases cited; Kimball v. Boston, 1 Allen, 417; Butterick v. Lowell, 1 Allen, 172, wherein it is said police officers can in no sense be regarded as agents or servants of the city. Their appointment is devolved upon the cities and towns by the legislature, but this does not render such cities and towns liable for their unlawful or negligent acts; same point, Elliott v. Philadelphia, 7 Phil. 128.

A municipal corporation is not liable for the non-feasance or misfeasance of the officers of its police. Stewart v. New Orleans, La. Ann. 461; Lewis v. New Orleans, 12 La. Ann. 190; Dargon v. Mobile, 31 Ala. (Ms.) 469; Wheeler v. Cincinnati, 19 Ohio St. 19; Hafford v. New Bedford, 82 Mass. 297; Culver v. City of Streator, determined in the Appellate Court, Second District, filed June 28, 1889.

For failure to exercise governmental power cities are not liable. City of Lafayette v. Timberlake, 88 Ind. 330, wherein it is said the municipality had fully discharged its duty in making the streets safe, and it was only made unsafe by law breakers who used it in a manner prohibited by law. The wrong was not in the city but in those who improperly and wrongfully used the street. See, also, Faulkner v. City of Aurora, 85 Ind. 130.

We perceive no difference in principle in exempting municipalities from liabilities for negligence in not preventing dangerous coasting upon the public street, that would notbe alike applicable to dangerous cannon firing upon the street, and upon this precise question the Supreme Courts of Ohio and Pennsylvania have passed. In Norristown v. Fitzpatrick, 94 Penn. St. 121, the plaintiff was injured by the discharge of a cannon in the public street, fired about 9 o’clock p. m. by a crowd upon the pavement of the street, while a public officer of the city was present, making no effort to prevent the firing, and the city was held not liable, citing many of the leading authorities bearing upon the question here under consideration. See, also, Elliott v. The City, 25 P. F. Smith (N. Y.), 347. In Robinson v. Greenville, 42 Ohio St. 625, which was a case of cannon firing in the public street, the authorities having notice of such firing, took no steps to prevent it and the court held the city not liable.

In Ball v. Town of Woodbine, 6 Iowa, 83, which was an action against the corporation of Woodbine by a person injured by fireworks, fired upon the public streets of said corporation in violation of its ordinances, the officers of the town having knowledge of such firing and neglecting to stop it, the corporation was held not liable. We must hold with the Circuit Court that the declaration shows no cause of action against defendant in error, and the judgment of the Circuit Court is affirmed. t

Judgment affirmed.


source: Caselaw Access Project

author: C. B. Smith, J.

license: Public Domain

text:
    J. R. Murphy, for use, etc. v. The Consolidated Tank Line Company.

      Garnishment—Parties—Nominal Plaintiff—Appeal.

    1. The nominal plaintiff in a garnishee proceeding before a justice of the peace is a party to the suit, and has the right of appeal from the judgment rendered by the justice. Such plaintiff has also the right to appeal to this court from an order of the Circuit Court dismissing bis appeal.
    2. Where a party makes an effort to perfect his appeal from the judgment of a justice of the peace and files some sort of a bond, the same can not be dismissed because of imperfections in the bond until a rule has first been entered on the appellant to file a good one.
    [Opinion filed December 16, 1889.]
    In error to the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. George B. Foster, for the plaintiff in error.
    Messrs. Sheen & Lovett, for defendant in error.
   C. B. Smith, J.

Patrick Walsh brought a suit before a justice of the peace against J. R. Murphy, appellant, upon some kind of a demand, and recovered a judgment before the justice. An execution was issued upon this judgment against Murphy and returned, “no property found.” Thereupon Walsh instituted garnishee proceedings against “The Consolidated Tank Line Company,” alleging that it was indebted to Murphy and a subpoena was issued against it in the usual form, when it appeared before the justice and made answer that it was indebted to Murphy in about the sum of $85, but in addition thereto stated in its answer that Murphy was a married man, the head of a family,and entitled to a $50 exemption. Thereupon the justice allowed this $50 exemption, and gave judgment in favor of Murphy for the use of Walsh against the tank line company for $35.

Murphy had no notice of these garnishee proceedings, was not subpoenaed nor present at the trial, but before the expiration of the twenty days he ascertained what had taken place before the justice in the garnishee proceeding, and in that case he took an appeal to the Circuit Court of Peoria County. The case was properly certified by the justice on appeal. In the Circuit Court Patrick Walsh moved to dismiss the appeal on several grounds: 1. Because no appeal will lie in favor of a nominal plaintiff in garnishee proceedings. 2. Mo appeal was taken from the judgment against the tank line company. 3. Mo appeal bond was given to indemnify Walsh. 4. Mo appeal bond has been given to the garnishees. The appeal bond filed with the justice is not abstracted, and we can not tell to whom it was given and under our rule will not search the record to find that fact.

The court sustained this motion but for what reason the abstract does not state. Counsel for plaintiff in error informs us in his argument that the court sustained the motion and dismissed the appeal for the sole reason (as appears from the bill of exceptions, as he says) “ that said Murphy had no right to take said appeal and was not a party to the suit.”

From this order dismissing the appeal, appellant Murphy then prayed an appeal to this court, which said prayer or appeal the court also refused. Proper exceptions were taken to this action of the court. Murphy being denied the right of appeal now brings the case here on writ of error and insists that all the proceedings of the Circuit Court were erroneous. In this contention he is clearly right and the court erred in dismissing his appeal from the justice and also in denying him the right of appeal to this court.

Murphy was a party defendant to the suit in the original proceeding of Walsh against him. He was also not only in form but in substance and in fact a party plaintiff for the use of Walsh against the tank line company in the garnishee proceeding. In that proceeding his claims and legal rights against the tank line company were to be litigated. The amount the tank line company owed him was to be determined and a judgment to be rendered in his favor against the tank line company for the amount it owed him, if anything. The tank line had a right to be heard in proof and a right to deny any or all or partial liability, and to set tip any defense, good or bad, to Murphy’s claim against it. Murphy had a right to meet these defenses and had a right to show that a much greater sum was due him than* the tank line company was willing to admit. In other words a garnishee proceeding between a judgment debtor and his debtors for the use of the judgment creditor is simply nothing more nor less than an ordinary real law suit with three interested parties instead of two.

We think it very clear that Murphy was a party to the garnishee proceedings, and that he had a right to be present and protect his interests. Every man must have his day in court when his life, liberty or property is in jeopardy in a judicial tribunal. And being a party he had a right to an appeal to the Circuit Court under Sec. 28 of the Garnishee Act, Rev. Stat., 1228 (Starr & Curtis).

It was error, therefore, to dismiss this appeal for the reason assigned; and the other grounds named in the motion upon which it is argued the appeal was properly dismissed, are equally untenable. An appeal bond of some kind was given to the judgment creditor or the garnishee, but we are not informed to which nor are we able to see from the abstract that the bond was not properly given; but even if it was wrongly given and to the wrong party or wrong in any other i-espect, it was error to dismiss the appeal without first taking a rule against Murphy to file a good bond. Sec. 69, Chap. 79, Rev. Stat. (Starr & Curtis, p. 1456).

Under our statute and liberal practice (intended to promote the ends of justice), where a party desiring an appeal makes an effort to give a bond and does give some kind of a bond, though imperfect, he shall not lose his right of appeal if he will give a good bond within a reasonable time after being required to do so by a rule of court.

It was also most palpable error to refuse plaintiff in error the right of an appeal from the judgment of the Circuit Court. This right is expressly given by Sec. 28, Chap. 37, p. 702, Rev. Stat. (Starr & Curtis). This right of appeal does not depend on whether the judgment of the Circuit Court is right or wrong nor upon the humor of the presiding judge, but upon a plain statute of the State, and no court has any right to deprive litigants of the right to have their cases reviewed by the Appellate Court when that right is conferred by statute. The judgment of the Circuit Court is reversed and the cause remanded.

The erroneous action of the court having been procured on the motion of Patrick Walsh the costs of this writ of error will be taxed to him.

Reversed and remanded.


author: Lacey, J.

text:
    John H. Creager et al. v. William Blank.

      Practice—Waiver of Opening Argument—Instructions:

    1. Where plaintiff’s counsel waives the opening argument and the defendant’s counsel thereupon waives argument, it is proper for the court to refuse plaintiff’s counsel the right to address the jury.
    2. Where one question in issue was as-to the terms of a contract of sale of tread power and stave cutter, the court, upon the case as presented, properly refused to instruct the jury that any statement made by one of the contracting parties after the sale, would not bind him nor affect the validity of the original contract.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Du Page County; the Hon. C. W. Upton, Judge, presiding.
    Messrs. E. H. Gary and G. W. Brown, for appellants.
    Messrs. Botsford & Wayne, for appellee.
   Lacey, J.

This suit was brought by the appellants against the appellee to recover the price of a certain stock cutter tread power machine, called a “Gray tread power” stave cutter, claimed to have been sold by the appellants to the appellee for the sum of $222. On the trial, which was had before the court and a jury, the contention was on the part of the appellee, that he only took the machine on trial to purchase it if it suited him, and, after giving it a trial, it did not suit him, and that he offered to return the machine, which the appellants refused to accept. On the other hand, the appellants insisted and attempted to establish that the sale was absolute if it worked as well as the machine of the same kind sold to Barber, and that appellee had no power under the contract of sale to return the machine if it worked as well as Barber’s, which it is claimed it did. This matter of fact at issue before the jury was sharply contested, and in support of the appellants’ contention, appellant Creager testified fully in support of his side, corroborated more or less clearly by Henry Barber, the owner of the other machine, who was present at the sale, Charles B. Gorham, Ed. McFarland, Wm. Hensel, and the other appellant, Bartholomew.

On the side of the defense were the appellee and his son, who was a man grown, twenty-six years of age, who contradicted the appellant Creager and his witnesses as to the terms of the contract and testified to it as insisted on by appellee. The defense was corroborated by the witnesses J. A. Keeley, Fred Grant and Wm. Phillips.

The jury decided in favor of the appellee, on the evidence, and we can not hold, after a review of the entire evidence, that the verdict was so manifestly against its weight as to require a reversal. We therefore decline to reverse on the ground that the verdict was contrary to the evidence.

At the close of the evidence the counsel for appellants announced to the court that he waived the opening argument in the case. The defendant’s counsel then insisted that if appellants waived the opening argument, the appellee could waive any argument, and the case should go 'to the jury without argument. The court then held that the appellants’ counsel could proceed with the argument, if they desired, with the right of defendant’s counsel to follow and appellants’ counsel to close the argument, but appellants’ counsel waived the opening argument, and defendant’s counsel waived argument, and appellants’ counsel then asked leave of the court to make closing argument, which the court refused, to which ruling of the court the counsel for appellants excepted. This action of the court is now assigned here for error; we do not think the assignment is well taken. The two principal arguments having been voluntarily waived, there was nothing left for the counsel for appellants to reply to. The purpose of a reply argument is to explain or refute anything that may have been erroneously said or improperly argued by defendant’s counsel. Its office is simply that of a reply, and it would not be proper for the counsel for appellants to argue the case in chief in a reply argument. It has been the uniform practice in the Circuit Courts of this State, so far as we are advised, to refuse a reply argument where the argument in chief and the defendant’s reply have been waived. The court also took the precaution to fully inform the appellants’ counsel what the ruling would be before he waived the argument in chief, so that there can be no claim of surprise. The ruling of the court, as we think, was correct.

One other cause for error is assigned, and that is the refusal of the court to instruct the jury on the pari of appellants that any statement of Creager, if made subsequently to the time the bargain was concluded, that he would make the cutter and power satisfactory to the defendant, would not bind the plaintiffs, nor affect the validity of the original contract.”

Without some explanation it would have been improper to give the above instruction. While it is true, as a matter of law, that a mere statement by one of the contracting parties, after the making of the contract, out of the presence of the other party, and to an indifferent person, would not of itself have the effect to change the contract already made, yet it may have been exceedingly strong evidence in the minds of the jury, as showing what the original contract in fact was, and, no doubt, it was the purpose of the appellee to corroborate his own testimony by these admissions on the part of one of the plaintiffs. The instruction as offered was well calculated to mislead the jury and induce it to discard for all purposes the admissions of Oreager, alluded to. The latter part of the instruction, which reads, “nor affect the validity of the original contract,” has an apparent assumption in it that the contract made was as the appellants contended, which was the very question at issue. The instruction refused was well calculated to impress the jury with the idea that the evidence, as it bore on the question at issue, had no effect and should be discarded.

The court committed no error in refusing it. Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.

Judge Upton, having tiled the case below, took no part in the decision here.


author: Lacey, J. C. B. Smith, J.,

text:
    David Fey v. The Peoria Watch Company.

      Corporations—Attempted Release by Directors of Stock Subscription— Ultra Vires—Other Subscriptions—Delay—Estoppel—Interest—Directors Not Necessarily Stockholders—Subscription Paper Not Necessary to Show Organization—Calls.

    1. The attempted release by the directors of a corporation, o£ one subscriber to the capital stock from the payment of his subscription, does not release another subscriber, not agreeing to such attempted release, from such payment.
    2. A subscriber to the capital stock of a corporation who claims to be released from his subscription by reason of fraudulent inducement used in securing the same, must claim his release at the earliest possible moment.
    3. The installments of a subscription to the capital stock of a corporation draw interest from the date when they bicorne due.
    4. In the absence of statutory requirement to the contrary a director of a corporation need not necessarily be a stockholder.

      5. In the case presented, this court holds that the corporation plaintiff having been organized and having received its charter, the introduction of the subscription paper was unnecessary to show organization.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. Arthur Keithley, for appellant.
    From a somewhat extensive research I have been able to find but two cases in this State, where, as between the corporation itself and the subscribers to its stock, the question of the validity of a release by its board of directors of some of the subscribers, has undergone judicial inquiry; one of these cases was in the Appellate Court, the other having been incidentally presented to, but directly decided by our Supreme Coxxrt.
    In Rutz v. The Esler & Ropiequet Mfg. Co., 3 Ill. App. 83, the plaintiff brought suit on a subscription to its capital stock by defendant. The general issue was filed and with it a stipxxlation of the parties that all defenses might be shown under that plea. The plaintiff’s books were introduced in evidence which showed that at a meeting of the board of directors of plaintiff therein “ a resolution was passed authorizing an agreement with certain subscribers to the capital stock, by which, upon giving their individual notes for one-half of their subscriptions they were to be released from the payment of the other half.”
    The court in its decision says: “ The courts of this country, with but few exceptions, have held that a release of a portion of the subscribers to the capital stock releases all the subscribers who do not assent to that release, or in some way give their sanction to it.” * * * “It destroyed that equality that exists between subscribers according to the terms of their subscriptions, which is the very essence of their contract,” and for that reason alone the coxxrt in the case cited reversed the judgment of the trial court allowing a recovery and remanded the cause.

      The facts in that case being the same under the pleadings as in this, that judgment, we think, should be decisive of this.
    Our State Supreme Court within the last eighteen months, in the case of Bouton v. Dement et al., 123 Ill. 142, had occasion to pass upon the question here presented. Dement and others, policy holders in a certain insurance company which was in financial distress, brought a bill in equity against the insurance company and some of the subscribers to its stock, in the nature of a bill of discovery. Cole, the assignee of the insurance company, filed across-bill, alleging that Bouton had not paid for his stock. Bouton answering, says in substance that he had among other things given his note for the stock, and that by some internal re-arrangement of the company’s affairs, a note of trifling value was given to the company in lieu of the Bouton note and Bouton’s note was returned to him. The finding of the Circuit Court, which was affirmed in the Supreme Court was, that Bouton’s note stood in place of his liability for that stock; that Bouton was a director and a member of the finance committee of the insurance company; that there were suspicious circumstances attending the after-dealing with the Bouton note tending to show it to have been a device to get rid of Bouton’s personal responsibility upon the note; that Page, whose note was substituted for Bouton’s, was an employe of Bouton, and financially irresponsible, and that Page’s note was accepted by the insurance company in lieu of Bouton’s, and was, after having passed through- two or three different hands, purchased by Bouton for three-twentieths of the face value of his own note.
    The court held that as between Dement, a creditor of the corporation, and Bouton, the transaction was a fraud, and Bouton was still liable upon his stock; but as to the assignee, Cole, he was not entitled to recover anj'thing. Using the language of the court, “ the exchange of Bouton’s note for that of Page, and the cancellation and delivery up of Bouton’s note', being valid and binding on the insurance company, as we find, the company itself could not impeach the transaction and set it aside, and no more, we think, could the assignee of the insurance company do so. The company, by its assignment, conveyed no greater right in respect of its property, than the company itself possessed.”
    In Angell & Ames on Corporations, tenth edition, Sec. 531, there is contained this concise statement: And if a stock company lets off a part of its subscribers, and returns them their money, other subscribers not consenting thereto are discharged from all liability growing out of their original subscriptions.”
    The case of Memphis R. R. Co. v. Sullivan, 57 Ga. 241, after deciding that all of the stock of which the road was capitalized should be fully subscribed before action brought, says: “It surely can not alter the case if a large and material subscription were merely nominal, and was afterward released because it had always been a sham, and all this had been done without the knowledge and consent of the subscriber, who was thus duped and cheated into his subscription by the sham.”
    The Supreme Court of Iowa has rendered a valuable decision for appellant upon this point, valuable in anticipation of the argument of appellee. I refer to the case of Gelpcke, Winslow & Co. v. Blake, 19 Iowa, 263. This was an action brought primarily to collect a subscription to the capital stock of a railroad company. The defendant pleaded as one of his defenses that he had been released from all liability on his subscription, his money paid returned to him,his contract of subscription canceled.
    The court said that this plea was demurred to because it failed to state that the cancellation and release alleged therein were made with the con-ent of the creditors and stockholders of said company. The point suggested is unsound, and can not be supported. That there are creditors is mere assumption. It does not so appear from the face of the plea. * * * As respects the assent of the stockholders to make the rescission of the contract valid, this is necessarily implied in the language of the plea. The allegation is, that it was the company that canceled the contract and released the defendant Who, in law, constitutes the company, if it be not the stockholders? The distinction which the demurrant would make between them, derives no support from the authorities cited.
    There was no lack of power, therefore, in the company, nor do we think there would have been in the board of directors, to rescind the contract, with or without the consent of the stockholders or others, when it was done in good faith; it would be time enough for the courts to take care of the creditors when they were judicially advised by the pleadings or evidence in the cause, that the same were in jeopardy.
    The Pittsburgh & Connellsville R. R. Co. brought suit in Pennsylvania to collect a subscription to its capital stock after a lapse of some time, and after some of the stockholders had been released. The Supreme Court of that State, speaking through Judge Woodward, 32 Pa. St., on page 31, says : “ McCally’s undertaking was not only to the company, but with the other subscribers. His subscription and theirs were mutual consideration for each other, and to let them off and hold him is to enforce a contract he never made, * * * and when the company let off part of its subscribers and returned to them their money without the consent of the defendant, actual or implied, they discharged him from all liability growing out of his original subscription.
    On page 141 of the same volume there is another decision announcing substantially the same principle. See also Miller v. Second Jefferson Building Association, 50 Pa. St. 32.
    There are numerous other decisions touching somewhat remotely upon the question here presented, which it is not advisable to cite, as the foregoing clearly show how the various courts have been impressed when confronted with such facts as are contained in the record of the case at bar.
    Ho doubt appellee will cite many authorities, for many there are, including Morawetz on Private Corporations, showing that a release of the stockholder by the board of directors is ultra vires; but when those cases are examined it will be found that those releases are being complained of by somebody affected thereby, rather than the corporation itself.
    Messrs. Jack & Tichenor, for appellee.

      Shorn of all verbiage, the pleas claim that because some one, not named, by some authority, not stated, released certain other subscribers from their liability without any consideration whatever, then the defendant should be released from his liability. Each plea, upon its face, shows that the alleged release was nudum pactum, and therefore void. Consequently that the alleged fraudulent subscriptions upon which the defendant relied are binding and of full effect against the subscribers, notwithstanding the alleged release. “The reason is obvious; the agreement of discharge is without consideration.” Hayes et al. v. Insurance Co., 125 Ill. 639. It would seem as though no argument should be necessary upon the proposition that a defense based upon an alleged agreement which was not only without consideration, but ultra vires, will not be entertained ; and we should submit the question upon this simple proposition, were it not that the Appellate Court of the Fourth District seems to have sanctioned the defense in Rutz v. E. & R. Manufacturing Co., 3 Ill. App. 83. In this case Judge Allen says: The courts of this country, with but few exceptions, have held that a release of a portion of the subscribers to the capital stock, releases all the subscribers who do not assent to that release, or in some way give their sanction to it,” citing Angell & Ames on Corporations, and some Pennsylvania and New York authorities cited by the author of that work in support of his text.
    The language of the text may be correct in principle; but it necessarily involves certain well recognized principles: first, that the release must be founded upon some legal consideration, and second, it must be granted by some competent authority; otherwise it is no release. In the Pennsylvania cases cited by Angelí and Ames, and by Judge Allen, the railroad companies. already organized, had opened their books for subscriptions to their capital stock, and had collected large subscriptions from certain shareholders. Subsequently their projects were abandoned, and the amounts already collected from some of the subscribers had been returned and their subscriptions canceled. It was held under these circumstances that no recovery could be had against other subscribers. The New York cases cited are both cases of voluntary subscriptions to private enterprises, dependent for their consideration entirely upon the mutual obligations of the subscribers to assist in the furtherance of a common undertaking. In all of the cases cited, the subscribers dealt with a power already in existence and competent to receive subscriptions and to control or cancel subsisting obligations. Humerous cases in Pennsylvania draw the distinction between a subscription to the capital stock for the purpose of enabling the company to organize, and a subscription after the company has been organized. Thus it is said: “Where subscriptions are made to the stock of a proposed corporation, previous to and for the purpose of procuring a charter, any conditions annexed thereto, whether written or parol, are void. But after the organization of the company a condition is binding and obligatory, subject, however, to the qualification that the rights of co-subscribers are not affected thereby.” And again : ' “ The commissioners (to receive subscriptions preparatory to organization) are held to have only limited statutory powers, of which the subscribers are bound to take notice. They have no right to vary the terms of subscriptions, and any conditions aro held:to be void, as a fraud upon the State, upon corporate creditors and upon other subscribers.” McCarty v. S. & N. B. R. R. Co., 87 Pa. St. 332; Miller v. H. J. & S. R. R. Co., Ib. 69 ; Boyd v. P. B. R. R. Co., 90 Pa. St. 169; Bedford R. R. Co. v. Bowser, 48 Ib. 29.
    It is said by a recent text writer: “ A subscriber for stock in a corporation can not obtain a cancellation of his subscription, except by the unanimous consent of the other subscribers.” Cook on Stockholders, Sec. 169.
    Conceding that under our statutes a stockholder may be released by the unanimous consent of the other subscribers, it will scarcely be claimed that the other subscribers consenting thereto, can refuse to pay their subscriptions upon the ground that the release was made in fraud of their rights as stockholders. In this respect the case of Gelpcke et al. v. Blake, 19 Ia. 263, cited by appellant, fails to sustain his position; for in that case the court recognized the doctrine that a release to be operative must be made with the consent of all the other stockholders of the company. If appellant consented to the release of Cole, ho can not avoid his subscription by reason of that release ; for Judge Allen says in the Rutz case, the fraudulent release of one subscriber releases all who do not assent thereto.
    In C. & P. R. R. Co. v. Baily, 24 Vt. 465, the same questions as here, were presented. The court held that the report of the commissioners licensed to open books for subscription, and to hold the preliminary meeting for organization, must be conclusive upon the validity of the subscriptions, on the amount thereof, and upon the legal organization of the company, so far as the stockholders are concerned ; that one of the purposes of calling the meeting of the stockholders preliminary to organization, is that the commissioners may be enabled to certify that the required amount of stock has been raised.
    Concluding then, as we must, that the stock was fully subscribed, and as a logical sequence that all the subscriptions were vaild and binding,what is the effect of the alleged subsequent release, without consideration, of one of the subscribers? Manifestly, if without consideration, the release was, for that reason alone, inoperative and void, and the subscription remained valid and binding. But beyond this, if the effect of the release is to reduce or impair the capital stock of the company, or if made without the consent of the remaining stockholders, it must, in order to be valid or effective, be authorized by some statutory authority. No such power or authority is given to the directors, or to any officer or agent of the corporation. It is therefore ultra viresj and for this reason, the subscription remains valid and binding notwithstanding the release.
   Lacey, J.

This was a suit in assumpsit by the appellee against the appellant to recover from the latter the sum of $1,000 and interest on his subscription to the capital stock of the former, it being a corporation organized for the purpose of carrying on the manufacturing and sale of watches in the city of Peoria, with a capital stock of $250,000, consisting of 2,500 shares of $100 each, with a duration of ninety-nine years. The subscription paper which was signed by appellant bore date December 1,1885, which he signed for ten shares. This subscription was preparatory to organization, which took place in December, 1885. There was a trial by the court, a jury being waived, and finding and judgment for appellee for $1,120. The main and chief error assigned and relied upon by appellant for reversal, was the action of the court in sustaining appellee’s demurrer to his 4th, 5th, 6th, 7th and 8th pleas, and in not allowing the same defense set up in them to be made on the plea of the general issue. The substance of the special pleas is that the agents of the appellee prior to its organization (those who were obtaining the subscription), preparatory thereto, for the purpose of effecting organization, made a secret agreement with one Johnson Cole, a subscriber to the capital stock of 200 shares, that he should not be called upon to pay the amount of the subscription or any part thereof, and that said subscription so fraudulently written and signed was shown to appellant as genuine, and he subscribed in faith of it, and that the appellee released Cole from the payment of any part of his said subscription in pursuance of the agreement, without 'the payment of any money; that the release was made of Cole’s and other subscriptions without consideration to appellee and with intent to give such released subscribers an unfair advantage. There are other points of defense urged by the appellant, which will be noticed hereafter.' The main point of the defense relied on, the supposed release by the directors of the subscription, we will notice first and more at large. Besides the errors assigned as to the sustaining of the demurrer to the pleas, the appellant also claims that the court ruled out certain evidence offered by him tending to show, and in fact showing, that the directors released as far as was in their power, the said Cole from his subscription without consideration.

We will consider both of ° these assigned errors together as the .supposed defenses of appellant are governed by the same principle of law. The appellant, in his brief, disclaims any intention of insisting that any secret agreement to release, as charged in the plea, made by the parties procuring the subscription of Cole antecedent to or at the time of taking it, would have the effect to release his own. It is admitted that such agreement would not have that effect. It is well to make such admission, for such is the general tenor of all the decisions, and the point was expressly held in Melvin v. The Lamar Insurance Co., 80 Ill. 446. That question being at rest we will not further allude to it in this opinion. The next question arising is, did the release by the directors, so far as it could be done by them, have the effect to release the other subscribers to the capital stock, not agreeing to such release, the appellant among them, from their subscription.

It is most strenuously urged by the appellant that it did, and-that in law such action of the directors of a corporation does have that effect. We are referred to the following authorities in support of this doctrine. Rutz v. The Esler & Ropiequet Mfg. Co., 3 Ill. App. 83, in which the court says that “the courts of this country with few exceptions have held that a release of a portion of the subscribers to the capital stock releases all the subscribers who do not assent to that release or in some way give their sanction to it,” etc. We are also cited to Bouton v. Dement, 123 Ill. 142; also Gelpcke, Winslow & Co. v. Blake, 19 Ia. 263; Angell and Ames on Corporations, 10th Ed., Sec. 531; and P. & C. R. R. Co. v. McCarty, 32 Pa. St. 31; Miller v. S. J. B. Asso., 50 Penn. St. 32. The case of Rutz v. The E. & R. Mfg. Co., 3 Ill. App., supra, seems to support the claim, but we are inclined to think the learned judge who wrote the opinion has fallen into error in the statement he makes in regard to the weight of authorities and also the decision. It is not necessary for ns to go to other States and other courts to find authority for the doctrine that the releasing of a subscription to the capital stock of a corporation without the consent of the stockholders does not release the other subscribers. We have it in the decisions of our own Supreme Court. In Melvin v. The Lamar Ins. Co., 80 Ill., supra, it was expressly held that as against any stockholder not assenting, a subscriber to the capital stock could not be released from his subscription thereto by action of the directors where such release was made without full payment. In the above case one of the stockholders filed a bill in equity to compel Cushman & Hardin to refund certain money of the company withdrawn by them in pursuance of an agreement between them and the directors without consent of the stockholders, whereby they wore released from their subscription to 5,500 shares of their capital stock, and certain money refunded to them which they had paid in on their subscription, and the court held, that notwithstanding such release, they must repay the money and also be compelled to occupy the position of stockholders in reference to their 5,500 shares; that the action of the directors was ultra vires and void as to such attempted release. The court in the above case holds that, “each stockholder has a vested right in the contract of subscription of every other stockholder,” citing Chandler v. Brown, 77 Ill. 335.

In the decision, in making further comments, the court says: “ Holding, as we do, that this option to surrender these shares of stock and take back the money and securities was invalid and to be disregarded, as a fraud against the other stockholders, the transaction of the directors of the company in the cancellation of the stock and in the payment of the money and securities, must be held here as of no effect. * * * The authority to collect and distribute does not embrace the power to release without payment. The courts have separately held that an attorney intrusted with a claim for collection has no power to discharge it without payment in full, and that to compromise a claim under such circumstances requires a special authority from the principal. Nolan v. Jackson, 16 Ill. 272; Viking v. McClellan, 61 Ill. 311.”

The court cites the above extract in regard to the duty of an attorney to his client as being analogous to the position of the directors of a corporation in respect to their duties in the collection of the subscription to the capital stock. They, no more than an attorney, can release or give away the assets of the company. They stand in the same relation. The appellant insists that there is a distinction between a stockholder asking relief against the acts of the directors in an attempted release of subscription, and a creditor; that as to the former the directors represent them and can release the subscription without consideration, but as to the latter they can not without the consent of the creditors. The case of Bouton v. Dement, 123 Ill. 142, is cited as a case in point, where it was held that the assignee of a corporation could not question the release of a subscription of a certain party which had been fraudulently made by the directors, but that the creditors might. As we understand that decision it was based on the ground that the stockholder had ratified the action of the directors, and as to the assignee of the corporation and the stockholders the release was binding, but not so as to the complaining creditors. The court in that case holds this language: “As the transaction of the substitution of the note of Page in the place of that of Bouton and the cancellation and surrender up of Bouton’s note was approved and ratified by the directors and stockholders of the Empire Insurance Company of Wheaton, and the company afterward used the Page note and hypothecated it with a bank to raise money, it is insisted that the transaction was a valid one and binding upon the company. This might be so as to the company, but yet be otherwise as against creditors. We are of the opinion that the transaction above referred to was valid as against the insurance company but not so as against creditors.”

It will be seen, then, that the-release of the insurance company was put in that case on the ground that the stockholders had ratified the release of the subscriptions to the capital stock.

In the case above cited of Melvin v. The Lamar Ins. Co., 80 Ill., supra, the only relief sought was by a stockholder, on the ground that the release of a subscriber to the capital stock by the directors, without consideration and. without consent of the stockholders, was void, which claim the court sustained and granted the relief, holding the attempted release ultra vires. We find abundance of authority for this ruling of the court in the text books and adjudged cases. In Morawetz on Private Corporations, Sec. 117, we find this passage, to wit: “So if the directors of a corporation attempt to release a portion of the shareholders and cancel their shares, this will not discharge other shareholders from the obligation of their contracts, for such release and cancellation being unauthorized, would not bind the corporation, and would be wholly void.” The authorities cited in the note in support of the text are numerous. Whittlesy v. Frantz, 74 N. Y. 456; Jewett v. Valley Ry. Co., 34 Ohio St. p. 601; Agricultural College In. Co. v. Fitzgerald, 15 Jus. 489; Compose Remsbon, etc., Plank Road Co. v. Witzel, 21 Barb. 56; Phillips v. Covington Bridge Co., 2 Metc. (Ky.) 219, 223; Macon, etc., R. R. Co. v. Vasan, 57 Ga. 314; Litle v. O’Brien, 9 Mass. 423.

We think it would be a dangerous doctrine to hold that the directors of a private corporation could by their wholly unauthorized act release, without the consent of the stockholders, any of its debts, and give away its assets, and still more dangerous and contrary to all the rights of the other stockholders, if by the release of one of its subscribers without consideration, they could dissolve the corporation itself; for the effects of such release might be, that enough of the shareholders would be absolved to entirely dissolve the corporation, to the great detriment of other shareholders. We think the law could never sanction such a rule. It was one or two years after the supposed release of Cole before the bringing of this suit, and hence before this attempt on the part of the appellant to obtain release from his subscription. And we are inclined to think that he should be estopped now from insisting on the defense he makes. He should at once or within a reasonable time, have taken steps to have his subscription canceled, and not wait and speculate on the success or non-success of the enterprise. In re London & Staffordshire Fire Ins. Co., reported in Chancery Division Law Reports, 1883, Vol. 24, page 194, it was said a party who claims to be released because of some fraud in inducing him to become a member of an incorporation, must claim his release at the soonest possible moment, and the burden o ' proof is on him, if much time elapses, to show that he had no notice. “He can not be allowed to play fast and loose, and be a stockholder if things turn out favorable, and not so, if unfavorable.”

Neither in the appellant’s pleas nor in his offer to prove the release has any allegation or offer to show that he had no notice of this release of Cole in time to have made his election, whether he would be bound by his subscription or not, been made. Having failed to do so under the authority of the above ruling, he would be presumed to have known about the release of Cole at the time it was done, and not having taken any steps to release himself from the subscription, be bound, even if he could have never claimed a release. See also authorities to the same point. Morawetz on Private Corporations, Sec. 108, and cases cited; Upton v. Trebblecock, 91 U. S. 45, and cases cited.

The appellant makes the point that it was error to compu' e interest on his subscription. We think not. The subscription was a written instrument and under our statute after it became due, as the installments were called for, such installment would draw interest. The last and final installment was called for November 18, 1886, more than two years prior to the date of the judgment in June, 1889.

The objection is made that the directors are not stockholders. We do not understand that such an objection as that could be made in this case, and our statute does not require it, and in the absence of such requirement one not a stockholder may be a director. Ex parte Stock, N. J. Chan. 73; Stahl v. McDaniel, 21 Ohio St. 354, 367; Wright v. R. E. Co., 117 Mass. 226; In re Steamboat Co., 44 N. J. Law, 529; Dispatch Line v. Ballamy Mfg. Co., 12 N. H. 205.

We can not see what the subscription paper has to do with this case; the company has been organized and received its charter, and it is not necessary to show any subscription paper, to show organization. Besides, appellant in this action can not question the organization. Rice v. R. R. I. & A. R. R. Co., 21 Ill. 93; Ill. G. T. R. R. Co. v. Cook, 29 Ill. 237. At least, if the corporation is de facto, the burden is on him to rebut by showing want of organization.

The objection raised that the appellant is released because the appellee accepted the subscription of C. M. and E. D. Howard in the Fredonia Watch Company, is not well taken. “A subscriber for stock in a corporation can not defeat an action to collect such subscription by the defense that the directors or corporation itself have done corporate acts which are beyond the corporate powers. There are other remedies open to the subscriber.” Cook on Stockholders, Sec. 187; People v. Barnett, 91 Ill. 422; People v. Logan Co., 63 Ill. 74. We think the call is sufficient to authorize recovery. They call for payment of all subscriptions except that of E. D. Howard, trustee of the Fredonia Watch Company, which had been settled for in another way. It had been exchanged for the property of the Fredonia Watch Company with Howard, its trustee, and at least prima facie Howard had already paid it.

Seeing no error in the record, the judgment is affirmed.

Judgment affirmed.

C. B. Smith, J.,

dissents. I do not agree with the reasoning or conclusion reached by a majority of the court. The controversy is between the corporation itself and the defendant. Ho rights of creditors are involved. The simple question as to whether a corporation can release some of its subscribers to its stock and compel others to pay, is alone presented by this record. I hold they can not. The case of Edward Rutz v. The Esler & Ropiequet Mfg. Co., 3 Ill. App. 83, and the case of Bouton v. Dement et al., 123 Ill. 142, are authority in point against the majority of the court. I think the judgment ought to be reversed.


author: Upton, P. J.

text:
    Plano Manufacturing Company v. A. M. Parmenter.

      Agency—Account Stated, or Settlement Sheet—Error—Burden of Proof —Instructions.

    In an action brought by a manufacturing company to recover from one of its agents the price of a machine received by him and not accounted for in his settlement sheet, where it appeared by defendant’s own admission that he had received a machine not reported in such sheet, the burden was on him to establish his claim that he had not received a machine which toas included in the settlement.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Lee County; the Hon. T. M. Shaw, Judge, presiding.
    Mr. Arthur Keithley, for appellant.
    Mr. John M. Tennery, for appellee.
   Upton, P. J.

This suit began in -proceedings before a justice to recover the price of a mower claimed by appellant to have been shipped to and received by the appellee under the provision of a written contract between the parties. In the trial before the justice a judgment was rendered for appellee, from which the suit was taken to the Circuit Court by appeal, in which two trials were had, each resulting in a verdict for appellee.

The contract above referred to, so far as material to the determination of the suit before us, provides that appellee was to receive the goods shipped him under the contract by the appellant, pay freight and charges thereon, sell the same and furnish appellant when called upon, after the ensuing harvest, a full and detailed account of the sales so made upon blanks to be furnished him by appellant.

On October 24,1885, Van Ness, as agent of appellant, called upon appellee with blanks as mentioned in the contract for the purpose of a settlement for the business done by appellee for the season of 1885. At this interview appellee made the statement of his dealings with the appellant, which is set out in the evidence upon b'anks so furnished him, in which account as stated by him he had received from the appellants but three mowing machines, one of which, as set out in his account, was shipped him fromPeoria April 8th, one from Plano June 24th and another from Plano on the 10th of July, 1885. Appellee in accounting for the disposal of these machines stated that he had sold one to Thos. O’Brien, one to Charles Baker and he had one on hand unsold. Under these circumstances it is claimed by the appellant a settlement was made on the basis of this account as stated by appellee, the agent relying upon the truth thereof. After the same was effected the account as stated and settled was by the agent forwarded to the home office, when upon examination it was ascertained that the appellee had ordered and received one other machine not accounted for in the account stated, which machine was claimed to have been ordered by appellee by a telegram to one of appellant’s agents, D. M. Stampf, at Avon, Illinois, which machine so ordered was shipped on or about July 2, 1885. Appellee was on the stand as a witness on the trial below, and there admitted that he ordered the mowing machine by telegram of D. M. Stampf, of Avon, as alleged against him, but he contended then and insisted in this court, that he did not, in fact, receive from appellant but three mowing machines that season. This of course could not be the fact conceding the correctness of the account stated. The appellee admitted, as we have seen, the order, receipt and sale of the other machines from Stampf, shipped him from Avon about July 2, 1885. Therefore, if the account stated was correct, and the appellee had in fact as he admitted received another machine of the appellants, through Stampf, their agent at A von, appellee must be indebted to he appellant, and it would have been entitled to a judgment in the court below. It remained therefore for the appellee to explain the account stated, as in that must have been contained the error, if error there was, to escape a judgment against him. Under these conditions of the evidence in the case, the appellant asked the court below to instruct the jury as follows:

"The court instructs you that the settlement sheet offered in evidence by the plaintiff, is, under the circumstances that obtain in this case, presumed to be correct and to contain no recital of facts that is not true, and the defendant, in order to disprove any statement contained in said settlement sheet, must do so by a preponderance of the evidence.” Which instruction the court refused to give, but instead gave the •following instruction asked for on the part of appellee, viz.: “ 3d. If the jury believe from the evidence that about the twenty-fourth day of October, 1885, the parties to this suit met and checked over their accounts together and settled the matters between them appertaining to such account, and struck a balance at that time, and then and there agreed upon that balance as the amount due from one party to the other, then and in that event, in the absence of mistake or fraud, neither party will be allowed to go behind that settlement for the purpose of increasing or diminishing the bal- ' anee so agreed upon between them at that time. The burden of the proof is upon the plaintiff in this case to show affirmatively such fraud or mistake if it seeks- to go behind such settlement.”

This, we think, was erroneous and would strongly tend to mislead the jury, and we find no other instruction in this record modifying the one given upon the burden of proof. We think that the instruction asked by the appellant (number one) was correct and should have been given as asked under the evidence in the case, and that the court below erred in its refusal.

The evidence, as disclosed in the record before us, was quite favorable, as it seems to us, to the appellant, and the jury should at least have been accurately instructed as to the burden of proof in the conflicting condition of the evidence.

For these errors (the refusal to give proper and the giving of improper instructions as before indicated) the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Stephen Martin et al. v. Elias B. Rhea.

      Partnership—Retirement of Partner—New Partnership—Assumption of Liabilities by New Firm—Payments by Retiring Partner—Release by Him of New Firm.

    Upon suit brought by a former member of a defunct copartnership against a firm succeeding it in business and assuming its liabilities, to recover for payments made by him of certain liabilities of the old firm after the formation of the new one, this court holds that by a writing executed subsequently to the payments in question, plaintiff released the defendants from liability upon certain items named, and that no recovery can be had therefor.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. Isaac C. Edwards, for appellants.
    Messrs. William S. Kellogg and James A. Cameron, for appellee.
   Upton, P. J.

This was an action in assumpsit, commenced to the February term, 1888, of the Peoria Circuit Court, by the appellee against Stephen Martin, Chas. O. Smalley, John C. Duncan and Chas. O. Peters, as partners, etc. Martin and Peters only were served with process. The declaration contained the common counts consolidated. The defendants served with process pleaded the general issue, a plea denying joint liability verified by affidavit, and the statute of frauds.

The record shows that some time in the year 1882 the firm of “Rhea, Smalley & Co.” was formed for the purpose of dealing in agricultural implements. That firm continued in business until the fall of 1883, when it was succeeded by the firm of “ Rhea, Smalley & Bowman.” E. B. Rhea, C. O. Smalley, W. R. Riley and Bateman Bowman comprised its members. This last named firm continued in business until Feb. 2, 1885, when it was succeeded by the firm of “ Rhea, Smalley & Co., No. 2,” Bowman and Riley retiring and the defendant Charles O. Feters, becoming a member of the new firm. Some time subsequent, Stephen Martin became a member of the same firm. On the 10th day of March, 1885, this last named firm was succeeded by the firm of “ Martin, Smalley & Co.” composed of the same persons as the preceding firm with the exception, that appellee Rhea sold his interest in said business and firm to Thomas Martin, who then became a member thereof. When appellee retired from the firm and sold his interest therein, the firm of “Rhea, Smalley & Co.” was dissolved and the new firm of “Martin, Smalley & Co.” was formed. This new firm took the entire assets of the old firm of “ Rhea, Smalley & Co.” and assumed its liabilities as shown by the boohs of the old firm, and no other or further liabilities.

The appellee claims that after his retirement from said firm of “ Rhea, Smalley & Co.” he paid out for that firm on its liabilities, which the firm of “ Martin, Smalley & Co.” assumed and agreed to pay as above stated, various sums of money, aggregating §724.21, upon which he credits two items aggregating $408.33, leaving a claimed balance due him of §315.88. To recover that amount this suit was brought. A bill of particulars was filed by the appellee before the trial court which is as follows:

Stephen Martin et al.

To Elias B. Rhea, Dr.

To judgment and costs for rent..........§195 12

To another month’s rent................ 183 33

To note and interest of Kinsey & Mahler.. 189 78

To money paid to Cratty Bros., Chicago, for suit of replevin of a car load of wagons.. 100 00

To attorney’s fees paid J. S. Lee in suit with H. O. Collins......................... 15 00

To expenses to Chicago to attend suit...... 13 10

To interest on money paid out............ 27 88

Total....................'........§724 21

Credits as follows, to wit:

Received of M. O. Collins for heating apparatus in Collins’ building................$22,5 00

Collected of Martin & Co. one month’s rent. 183 33

Balance due said Rhea...................315 88

Total............................$724 21

During the trial below, the above bill of particulars was amended by appellee by striking out the item of $189.78 charged for principal and interest on the “Kinsley & Mahler ” note, and by further striking out the item of $225, of the credit received by appellee from Mrs. Collins in settlement for the heating apparatus in the office of the building leased to the firm of “ Rhea, Smalley & Bowman,” thereby increasing appellee’s claim to $351.

The cause was tried by a jury in the court below and a verdict returned for the appellee with damages assessed at $351.10, from which at a subsequent term of court was remitted by appellee the sum of $63.40. The Circuit Court rendered a judgment for the appellee for $287.70 with costs, from which judgment an appeal was taken to this court.

The record discloses that the building occupied by the firm of “Martin, Smalley & Co.” at the commencement of this suit was held under a'.lease originally executed by Mrs. Collins to the before mentioned firm of “ Rhea, Smalley & Bowman.” At, or near the time of the execution of this lease, the agent of Mrs. Collins made a verbal contract with the lessees, that a steam heater should be placed in the office of the building so leased by “Kinsley & Mahler,” at the cost of $350. For this heater the lessees were to execute their promissory notes to “ Kinsley & Mahler ” for $175 each, falling due respectively January 1, 1886, and January 1,1887, and as the said notes fell due, Mrs. Collins was to allow “Rhea, Smalley A Bowman” a credit of $150 on each of the notes, to be applied on the lease as payment of rent. This lease was part of the assets of the firm of “Rhea, Smalley & Co.,” and passed to appellants in their purchase of such assets as before stated.

When the first of these notes matured, “ Martin, Smalley & Co.” paid it to the payee thereof, and delivered the note with money sufficient to pay the rent for that month, $183.33, to the agent of Mrs. Collins for the rent due for that month, according to the terms of the lease. Shortly after this attempted payment, Mrs. Collins through her agent objected to receiving the note in part payment of the rent, and refused to apply $150 upon the lease, or any other sum, and repudiated the parol contract for the “ heater ” and payment therefor. She notified “ Martin, Smalley & Co.” that she should not recognize them as her tenants under the lease, and soon thereafter commenced a suit against “ Rhea, Smalley & Bowman” to recover rent under the terms of the lease to them.

In this suit she recovered a judgment, including costs, for $195.12, being for the month’s rent supposed previously to have been paid by “ Martin, Smalley & Co.” with the Kinsley & Mahler notes. By the terms of the lease, the lessees were prohibited from sublotting the leased premises or assigning the lease without the written consent of the lessor.

Some time in the early summer of 1886, “ Martin, Smalley & Co.,” gave Rhea $183.33 for another month’s rent, and he paid it to the agent of the lessor, the lessor still refusing to recognize “ Martin, Smalley & Co.,” as her tenants, or to accept the Kinsley & Mahler note, as payment upon the rent.

Under these circumstances the appellee obtained the Kinsley & Mahler notes, and of his own motion effected a settlement with Mrs. Collins, by which she permitted an assignment of the lease to “ Martin, Smalley & Co.,” accepted that firm as her tenants, paid Rhea $225 in discharge of all her liability to “Rhea, Smalley & Co.,” or “ Kinsley & Mahler” on the steam heater contract, which, by the original agreement, was $300, as before shown, and Laving then settled and adjusted all matters in dispute as to the lease, and the tenancy of the then occupants of the leasehold, as well as the Kinsley & Mahler contract and notes, appellee made an assignment of the lease to appellants, and executed and delivered to them the following contract, viz.:

Peoria, August 24, 1886.
“ In consideration of Stephen Martin, J. B. Duncan and C. O. Peters accepting the transfer of lease on what is known as the Collins-Ballance building, Nos. 916 and 918 South Washington street, they were to pay nothing on said lease or the steam fixtures therewith attached, only the actual rent, which is one hundred and eighty-throe and thirty-three one hundredths dollars per month during the remaining term of said lease.”
(Signed) Elias Barber Rhea,
“ For the firm of Rhea, Smalley & Bowman.”

We think this release cuts out from appellee’s claim, as stated by him, $195.12 for the judgments and costs for the rent of the building in the above release, paid in May, 1886; and the second item in said claim of $183.33, paid for the rent of the store on the lease from Mrs. Collins prior to the release to appellants of August 24, 1886, above stated.

The third item of $189.78 was withdrawn by appellee in the court below as improperly charged, thus leaving two small items of the account claimed, aggregating $28.10, and the $100 claimed paid to Cratty Bros., the appellant’s liability for which, on the evidence in this record it is not necessary for ns to determine. The other points made in the case we refrain from discussing, as the view we have expressed must result in the reversal of the judgment of the court below. The judgment is reversed and cause remanded for such further action therein as the parties may be advised.

lievened and, remanded.


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    David R. Shelton v. William O’Riley.

      Practice—Verdict—Effect of in Law—Weight of Evidence.

    The verdict of a jury upon a question of fact alone which has been fairly submitted, must stand, although it may appear to be against the weight of evidence, unless it, is apparent on the face of the record that the jury were actuated by passion or prejudice.
    [Opinion filed December 16, 1889.]
    Appeal from the Circuit Court of Warren County; the Hon. P. H. Sanford, Judge, presiding.
    Messrs. F. S. Murphy and James W. Davidson, for appellant.
    Mr. M. M. Lucy, for appellee.
   Upton, P. J.

The question in this case is purely one of fact, uninfluenced by any ruling of the trial court complained of by either party, and if the evidence is sufficient to support the verdict, it is conceded the judgment below must he affirmed.

The facts presented by this record are briefly these: On the 6th of December, 1887, appellee purchased of appellant a stalk field of about sixty-five acres for cattle pasturage, and for which he paid the sum of $40. This field adjoined on the north, the right of way of the Chicago, California and Santa Fe Ry. Co., which right of way was then nnfenced, but when fenced would inclose this stalk field for a distance of about 180 rods. Both parties to this contract doubtless contemplated that the railway company would build the fence along the right of way, as it was legally bound to do, and assurances were given the parties that it would be built in hfovember or December of 1887. Appellee contended in the court below, and now insists, that appellant at the time of such purchase obligated himself to build the fence along the said right of way within a few weeks from the time of such purchase, to enable him to pasture his cattle therein, without which the stalk field would be of no value. Appellee, when upon the stand as a witness, testified to the facts before stated, supported in whole or in part by three other witnesses, as to the fencing of the field by appellant as stated above.

Appellant’s testimony in the court below flatly contradicts that contention and is supported in whole or in part by three other witnesses. The jury, as was their right, accepted the version of appellee.

It may not be improper for us to remark that under the evidence disclosed in this record we should have been better satisfied if the verdict had been given and the judgment rendered the other way. Yet it is a rule of law, that by a verdict of a jury upon a question of fact alone, when fairly submitted, the successful party obtains certain rights which are recognized by the law, and that such verdict must stand, although it may appear to be against the weight of the evidence, unless it is apparent upon the face of the record that the jury were actuated by passion or prejudice. That rule is particularly applicable in the case at bar, since two juries have found upon the facts the same way. Under the application of that rule, which is too well established to he disregarded, we feel constrained to affirm the judgment below, and it is affirmed accordingly.

Judgment affirmed. ¡


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    Mary J. Thompson et al. v. Charles H. Weeks.

      Injunctions—Right to Excavate Sand and Loam—Contracts—Construction—Remedy at Law—Equity Jurisdiction.

    Upon a bill asking that defendants be enjoined from interfering with certain excavations, it is held: That under the contract between the parties the plaintiff had no right to excavate at the controverted point without permission of defendants; that his remedy, if any, for the defendant’s refusal to allow him to excavate at the desired point was at law, and that equity had no jurisdiction in the premises.
    [Opinion filed December 16, 1889.]

      Appeal from the Circuit Court of Will County; the Hon. Dorance Dibell, Judge, presiding.
    This was a bill for an injunction filed in the Circuit Court by appellee against appellants seeking to restrain them from in any manner interfering or hindering the operations of appellee, or any of his employes, in excavating and removing sand and loam from the farm of the appellants in the town of New Lenox and from bringing suits against appellee or any of his employes, civil or criminal, on account of any supposed violation of the law in making such excavations. The writ was temporarily granted, but afterward, upon answer, and trial upon the evidence, the court made the injunction perpetual, giving by the decree the possession of the loam bank marked in the plat “ C,” in the oat field, to appellee.
    The injunction was based upon a written agreement between the parties to the injunction suit and the alleged violation on the part of appellants of the said agreement. The contract between the parties by which appellee secured the right to remove loam and molding sand from appellant’s farm is as follows:
    “This agreement made October 6, 1889, witnesseth that Mary J. Thompson and J. M. Thompson, her husband, of the first part, hereby lease the exclusive privilege and right of using and removing for the purpose of trade loam and molding sand from their farm in New Lenox, Will county, Illinois, for a term of three years, from the first day of December, A. D. 1886, to Charles H. Weeks, upon the following conditions, to wit:
    “ First. That the excavations shall be confined as near as can be (for the convenience of said Weeks and for the well being of the farm and as may be agreed upon from time to time) to the immediate neighborhood of the farm crossing on the Michigan Central Railroad, where a switch is now being placed.
    “ Second. The surface soils shall be carefully spread over the new surface left after the removal of the sand and loam, and shall, at the expiration of this lease, or upon the sur'render and cancellation of the same, leave the land in good shape with the banks leveled to a slope of 65 degrees.
    “ Third. That said Weeks shall pay said parties of the first part five cents per ton for all loam and molding sand removed from said farm, said payments to be made at the end of each and every month, taking railroad rates as a basis of settlement.
    “ Fourth. For the first year the said Weeks shall pay not less than one hundred dollars and for every year thereafter not less than one hundred and fifty dollars, although the sand and loam he may ship shall not amount to that sum.
    “Fifth. That said party of the second part shall use for roadway in entering and leaving the premises above described a track on the south side of the Michigan Central Railroad, running parallel with the said track, and close to the railroad fence on the south side of the same.
    “ Sixth. The said party of the second part shall not obstruct or retard the passage of teams of the party of the first part from going or coming about farm work on the south side of the railroad.
    “ Seventh. That said party of the second part agrees to be responsible for all damage that may occur to property belonging to party of the first part, growing out of any neglect on his part to keep fences and gates properly secured, and should any such damages occur they shall be ascertained by appraisement, and paid by the said Weeks.
    “Eighth. That said Weeks may at any time after one year, have the privilege of surrendering and canceling this lease or contract if he shall so desire, and should party of the second part so surrender this lease before the expiration of the three years he shall pay a land rent of six dollars per acre for land so used that can not be cultivated that season.”
    It appears that immediately after the execution of the agreement, the appellee commenced operations by excavating and shipping loam and sand from the farm in accordance with the agreement and continued operation until September 20, 18S8, when he was prevented from further proceeding by appellants At an expense of about $250 appellee put in a switch at the crossing, and began excavating for loam and sand immediately outside of the railroad right of way, and just west of the gate at the crossing. After having removed the deposits from about two acres, he applied to appellants for permission to open up another pit lying a little to the south of the one first worked. At first appellants objected to this, but finally granted a limited amount of loam and sand to be taken out there. According to a map in evidence, the first place where work was commenced on the land is marked “A,” and the second place “B.” Shortly before appellee filed his bill, he discovered a place on the farm where there was a bank of loam and sand which he claimed was better suited to his purposes and was more profitable to work than at the other two banks. This ¡fiace was about eighty rods distant from the crossing and is marked “0” on the map. The appellee claimed that there was less stripping at this point, and the quality of the loam was more suitable for some of his particular purposes than that obtained in pits “A” and “B.”
    The appellee then applied to appellants for permission to obtain what loam he might need from this newly discovered bank, “ 0.” The appellants, however, refused to give their consent, claiming that he had no right there under the contract, and they did not desire the excavations to proceed at that place.
    The lot in which the bank “C” was located was inclosed by a fence with openings as shown upon the map. It had been used that season for an oat field, and Weeks, the appellee, had never had possession of any portion of such field and had been given no authority to enter such field. But without any further permission than the contract gave, and against the will of appellants, he took possession of said bank and commenced plowing and scraping there. Appellants ordered the workmen to cease digging there, and to keep out of such field. The workmen refused to obey appellants' orders, claiming the right under appellee, who, they claimed, would protect them in so doing. Thereupon the appellant, John M. Thompson, caused the arrest of one of the workmen by the name of Faulson, upon the charge of trespass, under the statute. He also caused the gates or opening into the field to be closed. Thereupon and before the trial of the said Faulson appellee filed the bill in this case September 22, 1888, and obtained the injunction, as above stated, and aside from the evidence of appellee and appellant, there was not much evidence in the case to support the bill.
    The appellee contends that it would be a great and irreparable damage to be deprived of the privilege of taking out loam at the pit “ C,” where he claims the right to take out the loam and sand under his contract.
    Messrs. C. W. Brown and Fred Bennett, for appellants.
    Mr. Egbert Phelps, for appellee.
   Lacey, J.

We think the court below erred in holding that the complainant had a cause of action and that equity had jurisdiction to grant any relief whatever. As we interpret the contract the appellants reserved the special right to permit or prohibit any further excavation on the premises except at “the immediate neighborhood of the farm crossing and the Michigan Central "Railroad,” where a switch was then being placed. This being so, the appellee had no right to remove and commence to excavate at point “ 0” on the same farm eighty rods distant from the place first designated at point “A” without the consent of appellants. It is contended by appellee that the words in the parenthetical clause of the contract, to wit, “for the convenience of said Weeks and for the well-being of the farm and as may be agreed upon from time to time,” does not give appellants the right to arbitrarily and without reason refuse to allow other parts of the farm to be dug over and the sand and loam removed therefrom other than at point “ A;” that if the well-being of the farm, as a matter of fact, is considered and observed in the change in the place of excavation the consent of the appellants njay be dispensed with entirely. We do not so interpret the contract. The right to refuse the change is expressly reserved by appellants in the contract.

The words in the first part of the contract, which grants to appellee the ‘‘exclusive right of using and removingfor the purpose of trade, loam and sand from their farm in Mew Lenox, Will county, Ill., for a term of three years,” do not, when read with the coupled conditions, grant to the appellee the privilege to remove such material from the entire farm, irrespective of the subsequent right of appellant to agree or not to agree to any change. The first clause of the contract is specific in limiting the right to change the location of removing material to the agreement of the parties. Courts can not make new contracts for the parties, but must leave it as made by them. But, even if the contract should be so ini erpreted as that the appellants had no right arbitrarily to refuse assent to a change of the place of excavation, for the purpose of removing sand and loam, so long as the well-being of the farm was observed and considered in so making the change, yet, we are of opinion that a court of equity would have no jurisdiction under the facts as developed by the bill and evidence to grant the relief sought. If the appellee had been refused the privilege to make a change of place in his operations in removing loam and sand in violation of the contract, and to his injury, he had an adequate remedy at law, nor do we see anything in the evidence to show that complete damages could not be recovered in a suit at law in case of a breach of the contract by appellants. But it is insisted here that this suit in equity is in the nature of a bill to enforce a specific performance of a contract and therefore that the court had equity jurisdiction. Let us examine this claim for a moment.

Suppiose the appellants had refused the appellee the privilege of removing his operations from the first location to the second one, and forbade him from taking possession of any other part of the farm, and the appellee, instead of taking the law into his own hands, as he did in this case, and taking possession of the desired spot, had filed his bill in equity, asking strictly a specific perf or manee, designating the place where he would compel the assent of appellants to his work, alleging the well-being of the farm was observed in the new selection; would it be contended that a court of equity could entertain jurisdiction of such a case? AYe think clearly not. The contract, even in that view, is so vague and uncertain that no court of equity would undertake to enforce a specific performance of it; and then, again, a court of equity, at each subsequent refusal by appellants, might be called upon again and again to construe and enforce it, as vague and uncertain as it is. Where the contract sought to be specifically performed is uncertain in its terms, courts of equity will not undertake to decree its joerformance, but will leave the parties to their remedy at law. Bowman v. Cunningham, 48 Ill. 78; Fitzpatrick v. Beatty, 1 Gilm. 454; Gosse v. Jones, 73 Ill. 508.

In order to uphold appellee’s claim to remove dirt at excavation “C,” the court must order a performance of a portion of a contract not agreed upon, and which, if it has any existence at all, is uncertain and difficult, if not impossible, to determine. 2 Story’s Eq. Jur., Sec. 793, note A; 2 Wheaton, 290, 236.

If this bill is in its nature one to enforce specific performance, then, as we have seen, a court of equity would not take jurisdiction. But it is insisted that it is not a bill for specific performance, but one simply to restrain a]?pedants from interfering in a case where the appellee was only in the enjoyment of his rights under the contract, and to prevent irreparable injury. AYe can not think that this case comes within the rule contended for, when its subject and nature is considered. The appellants refused appellee the privilege under the contract to take possession of or excavate at point “0” on the farm. It then became a question of fact to be determined by the court, even under the contention of appellee, whether said point is one that may be worked under the contract, depending upon whether it can be excavated consistently with the well-being of the farm. Appellants deny it and refuse to agree, and appellee has taken possession of it, or proposes to do so, contrary to appellants’ will, thus determining the question in dispute for himself, at least temporarily, and tying up the hands of appellants, by this injunction suit, from interfering with him in his work, or by bringing suits, until a final hearing. By the time the cause would be heard the work would be done at the disputed point, and perhaps irreparable damage caused to the farm, and the court may finally decide that possession was wrongfully taken. By the time this cause is heard another and another point may be selected, and the same process repeated till finally the farm is ruined, and this by the unwarranted interference of a court of equity.

What is sought to be done by this injunction and bill is, in our opinion, farther- from being within the jurisdiction of a court of equity than a bill purely for specific performance. It encourages acts of trespass and .the taking the law into his own hands by appellee, by tying appellant’s hands by injunction, while the former takes execution of the contract as he interprets it at his own will before hearing. Thus, by the unwarranted interference of a court of equity, the appellants farm may be irreparably injured, which ought to be a sufficient - test to show that a court of equity ought not to take jurisdiction, as one of the principal grounds of equity jurisdiction is to grant injunctions to frevent irreparable injury, while taking jurisdiction in a case like this would be to aid it. Hence it will be seen that appellee by taking unwarranted possession of the point C ” and excavating there, did not give a court of equity jurisdiction where it -would not originally have had it, to enforce specific performance. The policy of the law is always to discourage parties from taking the law into their own hands, even though it turns out in the end that such party had the right in the case.

For these reasons we hold that the court below erred in retaining jurisdiction and in granting the relief sought.

The decree is reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.