text:
    Prentiss D. Cheney, Guardian, etc., v. Harry W. Roodhouse.

      Guardian and Ward—Guardian's Report—Form of—Interest—Rent— Growing Crops—Administrator's Right to Sell—Improvement of Ward’s Estate—Negligence.

    1. A guardian’s report though not in precise form will be sufficient if it clearly shows the rights of the ward.
    2. A guardian is not properly chargeable with interest after he has tendered to the judge of the County Court the funds in his hands, and has been instructed to place the same in bank until further orders.
    3. A guardian, by making repairs and improvements on bis ward’s lands without a previous order of court, does not lose the right to be repaid for them, but does assume the burden of showing, on application for credit therefor, that they were necessary and proper, to the interest of the ward, and paid for at reasonable rates.
    4. Under Sec. 94, Chap. 3, R. S., an administrator is authorized to sell crops growing on his intestate's lands at the time of his death and apply the proceeds to the payment of decedent’s debts.
    5. In the case presented, sundry minor exceptions are overruled, the decree of the court below being supported by the evidence.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Greene County; the Hon. G. W. Herdman, Judge, presiding.
    Hr. T. S. Chapman, for appellant.
    Hr. Hark Meyerstein, for appellee.
   Conger, J.

Peter Roodhouse died intestate June 9, 1879, in Greene county, leaving him surviving Harriet Roodhouse, his widow, appellee, Harry W. Roodhouse, issue of a former marriage, and Benjamin T. Roodhouse, issue of his last marriage, his two sons and only heirs at law. Hrs. Roodhouse, together with appellee, became the administrators of the estate. In October, 1879, Hrs. Roodhouse, with her son Benjamin, removed to Washington, D. C., where they have since resided, leaving appellee to manage the administration of the estate, as well as the lands left by Hr. Roodhouse. On October 17, 1881, appellee was appointed guardian of his brother, and it is upon the settlement of his account as such guardian that this controversy arises.

Upon appellee’s making his final report several exceptions were filed thereto, some of which were by the court below overruled, and some in part sustained, and which we will notice in.regular order.

Appellee filed no report until appellant was appointed to succeed him, such report having been filed on the 16th of January, 1888. And it is insisted by appellant that such report in form is radically wrong. That it does not, as it should, purport to show the balance in his hands at the end of one year after his appointment, and the balance in his hands at the end of each year thereafter.

The report is open to this objection, but it does show the entire amount collected and expended, and computes the amounts upon the principle of yearly rests, so that the rights of the ward are as fully protected as though such report had been made in proper form. It might have. been proper in either the County or Circuit Courts to have required appellee to have complied with the suggestion made, but we are not inclined to reverse the case because the report may not be in form, if it can be ascertained that the rights of the minor have been fully set forth, and we think they have.

It is urged that the calculations of interest as set forth in the report, is a mere guess on the part of appellee, and the account does not furnish the data from which such calculations can be verified or refuted. This is an error, for we have taken the trouble to go through the account as presented in the record, each year by itself, and making rests at the end of each year as required by the rule of the Supreme Court, and the result is so near that shown by the report as filed, as to show that in principle they are the same, the difference being only such as would naturally arise in making so many calculations.

It is next insisted that the annual rent of $900 as reported by appellee is too low, and should have been increased. We think the evidence shows that amount to have been just and equitable and think the action of the court in fixing the rent at that sum, was fully warranted by the evidence. It is true appellee at one time told Mrs. Roodhouse, he thought he could pay as rent for the land $2,500, and for that year he did pay to her two-thirds of that sum, but he denies that he made any contract to that effect, but says it was only his opinion of the probable value of the rents before he had ascertained by trial, and in the absence of any contract the ward should recover only what would be a reasonable rent, and that we think he has done.

It is next made the subject of complaint that the Circuit Court did not require appellee to pay interest from January 16, 1888, to March 8, 1888; appellee on the former date tendered the money in his hands to the judge of the County Court, and was by him directed to place the funds in bank until further orders, and under these circumstances we see no impropriety in relieving him from the payment of interest while it was so held subject to the order and disposition of the court.

The fourth and fifth objections relate to the allowance by the court of certain items credited to appellee in his account, and of which we can not speak in detail without making the opinion too voluminous. We think the evidence fully justified their allowance.

By making the repairs and improvements on the ward’s lands without a preceding order of the County Court, appellee did not lose the right to be repaid for them, but he did assume the burden of showing, at the time of asking credit therefor, that they were necessary and proper, to the interest of the ward, and paid for at reasonable rates. This, we think, appellee did.

The sixth objection as stated by counsel for appellant is: “All the crops growing and unmatured on the lands of Peter Roodhouse at the date of his death, June 9, 1879, were immediately vested in his two sons as a part of his real property and the administrator had no rightful authority to appropriate the same.” By Sec. 94 of Chap. 3, R. S., the administrator is expressly authorized to do what he did in the case at bar, viz.: as administrator of his father’s estate he sold these growing crops as other personal property, and applied the proceeds toward the payment of the decedent’s indebtedness.

The seventh and eighth objections are general complaints based upon the negligence and carelessness of appellee in failing to file an inventory of the ward’s estate, in failing to make reports as he should, and in failing to loan his ward’s money and rent his lands.

That appellee was guilty of great negligence .in the performance of his duties as guardian can not be denied, but he has been punished for his failure to make an inventory and report by having his entire commissions as guardian, amounting to over 8600, taken from him, and he has been required to account for all moneys received, with six per cent compound interest with annual rests, and a rent upon the land fully as high as the evidence would justify, and we are at a loss to know what more should in these respects be required.

We will dispose of the remaining objections of appellant as well as the cross-errors assigned by appellee, by saying that after giving the whole record a careful investigation, we are satisfied that the decree of the Circuit Court is a fair and just settlement between appellee and his ward, and that neither party has any good reason to complain.

The decree of the Circuit Court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    The Peoria, Decatur & Evansville Railway Company v. Cassius M. Powell.

      Railroads—Injury to Stock—Evidence—Verdict.

    In an action against a railroad company for injuries to stock upon defendant’s track, alleged to have been caused by the negligent management of one of its trains, this court declines to interfere with verdict for plaintiff.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Moultrie County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. Stevens & Horton and John R. Eden, for appellant.
    Messrs. Meeker & Grider and J. E. Jennings, for appellee.
   Wall, J.

The appellee recovered a judgment against the appellant for $160 for damage to stock. The negligence alleged was in the management of the train while the stock were on the track. It is insisted by the appellant that there was not sufficient evidence on the part of appellee to warrant the verdict. We have carefully read all the proof from the record and find it conflicting in some respects, and considered altogether, not entirely satisfactory, but it is not so deficient as to require a reversal upon that ground alone.

The instructions given for the appellant called the attention of the jury very pointedly to the issues and it can not be supposed the jury misunderstood the questions submitted for their decision.

It is objected that some of the special interrogatories were not properly or perfectly answered, but we think there is nothing substantial in the objection. Ho complaint is made upon the rulings of the court in the admission of evidence or in the giving or refusing of instructions.

Finding no tangible error in the record we must affirm the judgment. Judgment affirmed.


author: Conger, J.

text:
    Daniel McLaughlin v. Frank E. Fisher.

      Slander—Pleading—Actionable Language—Demurrer.

    In an action for slander, this court holds that a demurrer to the declaration was properly sustained, the words charged not being actionable per se and no sufficient averments appearing to show that the same touched the plaintiff in “some office, business or employment.”
    [Opinion filed November, 23, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Ceeighton, Judge, presiding.
    Messrs. Connolly & Mather and James M. Graham, for appellant.

      Messrs. Palmer & Shutt, for appellee.
    See Townsend on Slander, Secs. 307, 308, 335, 336; Sanderson v. Caldwell, 45 N. Y. 398.
   Conger, J.

This was an action on the case for slander. The declaration was as follows: “ Also for that whereas, before and at the time of committing the grievance hereinafter mentioned, the plaintiff held, used and exercised the office of president of the Illinois Miners’ Protective Association, by appointment of said association, and received and enjoyed therefrom a salary of, to wit, 8100 per month, as such president, which said association was then and there and for a long period theretofore had been a voluntary association of all persons working in and around the coal mines in the State of Illinois. And one of the objects of said association then and there was to promote the best interests of said persons in their said occupation, and to promote harmony as to work and wages among said persons in their said occupation. And it was then and there the duty of the plaintiff, as president of said association, to so demean himself as to advance the said object of said association, and to promote the best interests of said persons in said occupation, and to promote harmony as to work and wages among said persons in said occupation.

And the plaintiff avers that he hath always during the time of his being such president, faithfully, properly and honestly discharged his said duty as president of said association, and dealt honestly, equally and fairly as such president, with all persons working in and around the coal mines in said State, and never was guilty of the offenses and misconduct hereinafter stated to have been charged upon and imputed to him by said defendant, nor until the time of the committing of the grievances by the defendant, as hereinafter mentioned, was ever suspected of any such offenses or misconduct, by reason whereof the plaintiff had deservedly acquired the honor, esteem and good will of his neighbors and. of said association, and of the said persons working in and around the coal mines in the State of Illinois.

Nevertheless the defendant, well knowing the premises, hut contriving and wickedly and maliciously intending to injure the plaintiff in his good name and reputation, and to bring him into disgrace, scandal and distrust as president of said association among his neighbors and other good citizens and the said association, and among the persons working in and around the coal mines in said State, on, to wit, the 1st day of January, A. B. 1888, at the county aforesaid, in a certain discourse which the said defendant then and there had, of and concerning the plaintiff, and of and concerning the plaintiff in the execution of his said office of president of said association, in the presence and hearing of divers persons falsely and maliciously spoke and published of and concerning the plaintiff, and of and concerning him in the exercise of his said office, the false, scandalous and malicious words following, that is to say: “Let me (meaning said defendant) tell you, boys, something that may be you don’t know. Let me (meaning defendant) tell you that old Ban McLaughlin (meaning plaintiff) is carried on the pay rolls of the C. W. & V. Coal Company, at the rate of $75 a month, for keeping up an agitation among the miners (meaning persons working in and around the coal mines in Illinois) of Central and Southern Illinois, so that the mine owners of Northern Illinois can get all the trade, and I (meaning defendant) know it.” Meaning and intending thereby to charge the plaintiff with wilfully and corruptly, and for his own gain, neglecting and failing to so demean himself as to advance the said object of said association, and wilfully and corruptly, and for his own gain, neglecting and failing to promote the best interests of the persons working in and around coal mines in said State, and with wilfully and corruptly, and for his own gain, refusing and neglecting to promote harmony as to work and wages in said occupation, among persons engaged in working in and around coal mines in said State.

And meaning and intending thereby to charge the plaintiff with wilfully, corruptly and for his own gain, permitting himself, while so president of said association, to be employed by the C. W. & V. Coal Company, for the purpose of interfering with and retarding said object of said association, and for the purpose of injuring the best interests of the persons working in and around the coal mines in Illinois, and for the purpose of producing absence of harmony as to work and wages in their said occupation, among said persons, contrary to his "duty as president of said association. And meaning and intending thereby to charge that the plaintiff, while so being president of said association, accepted employment with the C. W. & V. Coal Company to keep up an agitation among the persons working in and around the coal mines in Central and Southern Illinois, to the injury of their best interests and to the destruction of harmony as to work and wages, between them and the persons working in and around coal mines in Northern Illinois, so as to diminish or prevent the mining of coal in the coal mines of Central and Southern Illinois, and so enable the mine owners of Northern Illinois to control the trade in coal.

He, the said defendant, then and there intending to be understood as so meaning, and he being then and there so understood by the persons by him so addressed, as aforesaid.

By means whereof the plaintiff hath been greatly injured in his good name, fame and credit, and has suffered great anxiety of mind, and been exposed to the loss of his said office of president of said association, and the emoluments thereof.” To this declaration a demurrer was interposed and sustained by the court, and judgment went against appellant for costs, and he brings the record to this court for review.

We think the demurrer was properly sustained.

The words charged in the declaration are not actionable. per se, and can only be made so by proper averments that they “touch him in some office, business or employment.”

The declaration fails to set out with sufficient clearness and certainty either the society or the duties of appellant as its president, to enable a court to say that the action charged against appellant would necessarily be a violation of such duties. The substance of the words charged is, that appellee said of appellant, that he, appellant, “is carried on the pay rolls of the C. W. & V. Coal Company at the rate of $75 a month, for keeping up an agitation among the miners of Central and Southern Illinois, so that the mine owners of Northern Illinois can get all the trade.”

It is nowhere averred, and we are at a loss to know how it can be assumed, that keeping up an agitation among the miners of one section of the State, may not be in harmony with appellant’s ideas of promoting the object of the association, of which he is president. His duties are only spoken of in a general way, being, to so demean himself as to advance the object of the association, and to promote the best interests of said persons in said occupation, and to promote harmony as to work and wages among said persons in said occupation.”

The declaration we think entirely failed to show such a case as would require the appellee to defend, and hence the demurrer was properly sustained.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    Charles McNary v. The People.

      Criminal Law—Information—Charge of Assault with Deadly Weapon against Two Defendants—Conviction of One-—Instructions—-Costs.

      1. Where an information charged the plaintiff in error and his brother with an assault with a deadly weapon, “ to wit, a club and knife,” an instruction to the jury that the information charged the defendants with making an assault with a deadly weapon with intent, etc., and that if the jury believe, from the evidence, beyond a reasonable doubt, that the defendants, as charged, did make the assault with a deadly weapon with an intent, etc., and where no considerable provocation appeared, or the circumstances showed abandoned and malignant hearts, they should return a verdict of guilty, was not erroneous, although the evidence tended to show an assault by the plaintiff in error alone and with a club only.
    2. A deadly weapon is a weapon likely to produce death or great bodily harm by the use made of it.
    3. It is not error for the court to refuse certain instructions, although they contain a correct statement of the law on the topics covered by them where the jury are elsewhere properly instructed on the same points.
    4. In the case presented, this court declines to interfere with the decision of the court below, refusing an apportionment of costs, it not appearing that any costs were made, not necessary for the prosecution of the case as against the plaintiff in error.
    [Opinion filed November 23, 1889.]
    In error to the County Court of Clark County; the Hon. H. Gassaway, Judge, presiding.
    Mr. S. S. Whitehead, for the plaintiff in error.
    Mr. T. L. Orndorff, State’s Attorney, for the defendants in error.
   Pleasants, P. J.

This was an information against plaintiff in error and his brother, John, charging an assault on Samuel Graham “with a certain deadly weapon, to wit, a club and knife,” with intent to do a bodily injury. There were two counts, alike in all respects, except that one alleged there was no considerable provocation and the other that the circumstances showed an abandoned and malignant heart. John was acquitted but Charles was found guilty and judgment rendered accordingly.

Exceptions were taken to almost everything allowed or refused by the court, and are here urged with a freedom of reflection upon the judge, which we think unwarranted and feel bound to rebuke. While we mean to give all due consideration and weight to argument it should be understood that the endeavor to do so is more likely to be frustrated than aided by the interjection of such matter as appears on page 10 of the brief for plaintiff in error.

The first instruction given for the people stated that the information charged the defendants with making an assault upon Graham with a deadly weapon (not designated) with intent, etc.; and that if the jury believed from the evidence, beyond a reasonable doubt, that the defendants, as charged, did make an assault upon the person of said Graham with a deadly weapon, instrument or other thing, with an intent, etc., and where no considerable provocation appeared, or the circumstances showed abandoned and malignant hearts, they should return a verdict of guilty.

There was an abundance of evidence tending to prove an assault by Charles with a club only, and that, although John, from some distance seeing two men holding him, rushed to the scene with a knife, he did not arrive until that assault was over and Graham had withdrawn beyond his immediate reach. Upon this state of the proof it is claimed that the instruction so given was erroneous in not being confined to the only one of two alleged deadly weapons charged, which was in any way sustained by the proof as against Charles, either by his own act or that of his co-defendant.” In this connection it is said that an instruction not applicable to the facts proved should be refused, and that the hypothesis assumed should be so broad in its application as to exclude all others, citing Hamilton v. Hunt, 14 Ill. 472.

This objection, if we understand it, rests upon a misapprehension. The instruction assumes no hypothesis, nor does it imply anything as to the effect, or weight, or even the existence of any evidence in the case. It is clear enough that the offense intended by the information was a joint assault, which, in its nature, is an assault by each, at the same time and with a common intent, by one with a club and by the other with a knife, although the language used is “a certain deadly weapon, instrument or other thing, to wit, a club and knife;” and Charles, being the defendant first named, and club, the weapon first specified, the natural construction would be that he was charged with using that weapon and John with using the other. That all this was so understood by the defendants and their counsel is manifest from the quotation above made from the argument here and from the fact that no objection, on account of variance or otherwise, was made to the evidence given of an assault by Charles alone and with a club only. Under the information, as framed, it would have been proper to show an assault by each at the same time, with the weapons respectively charged, or by either, with the weapon charged to him, aided and abetted by his co-defendant, in either of which cases the proper verdict would be “guilty,” as to both; or by either, with the particular weapon charged to him, without any evidence against his co-defendant, in which case the proper verdict would be “guilty” as to him, and “not guilty” as to his co-defendant. If, as to one, there was no evidence, the court might properly, of its own motion or on that of such defendant, upon the close of the people’s case in chief, direct a separate verdict of acquittal as to him and discharge him. But the court would not be bound to do so of its own motion. It might submit the whole case, and as to both defendants, properly presuming that the jury, under a general instruction requiring proof of guilt beyond a reasonable doubt in order to convict, and advising them that if the evidence warranted it they might convict one and acquit the other, would return the proper verdict. In this case, if John had been acquitted by a separate verdict before it was finally submitted, the instruction doubtless would, as it should, have related to Charles and the charge against him alone. But there was no such separate verdict. John did not ask it, but saw fit to submit his case together with that of Charles. Nor did Charles object to it. Therefore the instruction related to the whole case and both the defendants, as submitted, with whatever of fullness or lack of evidence there was about it, and it was just such as is commonly given for the first of the series for the prosecution in criminal cases. Its usefulness may well be doubted, but its harmlessness hardly. For it amounts to no more than a statement to the jury that the character of their verdict should depend upon their belief, from the evidence, as to the material facts alleged in the information; that if it satisfies them beyond a reasonable doubt that these are true as alleged—in other words, that the defendants are guilty beyond a reasonable doubt—they should return a verdict of guilty; and the implication, which is about as clear and strong as the expression, is, that unless it so satisfies them, they should return a verdict of not guilty. But it presents no hypothesis at all in the proper sense of the term; that is, no particular fact or condition upon proof of which they should or might find in any particular way upon the general question of guilt or any allegation in issue. By another, which should be considered in connection with this, they were advised that “they could find one or both of the defendants guilty, as they might determine from the evidence.” We see no reason to apprehend that they were misled or influenced in any way by any supposed assumption or implication in this instruction or misapplied any of the evidence. Nor does their verdict against Charles of “guilty? as charged in the information,” import a finding that he used a knife and a club. Their acquittal of John, in view of the evidence preserved, shows the contrary.

A deadly weapon was defined by the court as “one likely to produce bodily injury from the use made of it.” Doubtless a more correct definition would have been, a weapon likely to produce death or great bodily harm by the use made of it, but we do not see how this error could have prejudiced the case of the defendant. The term “ club” imports a deadly weapon, though in a given case it may not be for several reasons. And so, also, of a “knife.” The information alleged it to have been such. Its form, size and character were described to the jury by comparison at least. The one claimed to have been used was produced. One witness positively identified it, and another testified to its similarity, if not to its identity, though this was denied by the defendant. The manner and effect of its use were also shown. According to all the testimony relating to it, except that of the defendant, whose account of the whole transaction and its several parts must have raised a smile in the jury box—it was clearly a deadly weapon, and an accurate definition should not have changed the finding.

The fourth instruction was in the usual and familiar form with reference to what is and what is not a reasonable doubt; but because it concluded with the statement that if the jury were satisfied from the evidence, beyond a reasonable doubt, of the guilt of the defendants, “ or either of them,” they should return a verdict of guilty, it is claimed that “ in its fair intendment it ignored the separate rights of each,” and required the conviction of both if either was found to be guilty. It could hardly be necessary to notice this palpably unreasonable construction, even if the court had not expressly instructed, as it did, that their verdict might he against one and not against both, according to their belief from the evidence.

By the fifth the jury were' told that in determining the weight to be given to the testimony of the different witnesses, they “ were authorized to consider (among other things stated) their relationship to the parties,” if proved; and it is contended that the parties were the people and the defendants, and therefore that the instruction did .not apply to George Graham, a brother of the prosecuting witness, who was called on behalf of the people, while it tended to weaken the testimony of some of the witnesses for the defense. There was no evidence showing a special relationship of any witness to the people of the State of Illinois, and we think it sufficiently obvious that by “ the parties” the instruction was intended and understood to mean the parties to the alleged assault and not the parties to the record.

Complaint is also made of the refusal of some and the modification of other instructions asked by the defendants. All that we find in the abstract, however, relating to any so asked, is the following: “ Rest of instructions for defendants offered, refused, given and modified, all on pages of record from 64 to 79 inclusive, as well as motions and errors preserved on pages 79 to 80.”

We might, therefore, under the rule, decline to notice alleged errors in the court’s action upon them. Some of those refused are set forth in the argument, but none of those given, whether modified or not. Upon an examination of the record itself we find no substantial support for these exceptions. It may be conceded that those refused, which are copied in the argument, presented in unobjectionable form the law of self-defense and the effect of danger apparently, though not really imminent or threatened, but the substance of all they contained was clearly and fully set forth in others that were given.

Another stated it to be “ the duty of the jury to consider the reasonableness or unreasonableness of the contention of the prosecution in this case, and to consider whether it was probable, under ordinary motives of human conduct, that Charles McNary alone would go into what is shown by . some of the evidence to have been demonstrated and regarded as Sam Graham and his body-guard, and there voluntarily commenced (commence) a difficulty by assaulting Graham among his friends, or whether, on the contrary, as he contends, he regarded himself in the company of men hostile to him, and only acted “in rightful self-defense against danger, which to him reasonably appeared to be threatened and imminent. ” Counsel admits “there may be one objectionable feature in it, ” but without indicating which one it is, unless by assigning its length as the reason for not reproducing it in the argument, still insists “ it was fair toward all parties, ” and therefore we suppose that it ought to have been given. We think it vicious throughout. It presents as matter of law what is only matter of argument. It assumes that defendant was influenced by ordinary motives only; infers therefrom an improbability of the act charged, and then attributes to such supposed antecedent improbability the legal force of evidence or ground of presumption, to continue in operation after evidence produced, of whatever amount or weight, to rebut and overcome it. In every criminal case the law presumes the defendant’s innocence, but only until the contrary is proved beyond a reasonable doubt; and if there is any evidence tending to ’prove it, an instruction to consider the presumption, without the qualification, will be improper. Here the question for the jury to consider was not whether he probably would or would not go, etc., but whether he actually did go, etc., and its determination properly depended, not on the antecedent probability or improbability of the fact, but upon the evidence produced which this instruction would have ignored. While it is generally if not always the case that crimes, which are mala in se, are against the weight of right reason—they are scarcely ever committed without reason, and it is by no means unreasonable in any sense to expect their commission and to believe the fact in any given case upon the testimony of credible witnesses. In this case the defendant had the benefit of proper instruction to the jury as to the presumption of innocence and its legal weight and effect. This covered all that was sensible or proper in the one proposed, and on that point he was entitled to no more.

The court struck out from another instruction asked the concluding statement—that “if any witness is successfully impeached by proof that he made statements about this case, or any part of it, out of court, inconsistent with the truth of his testimony here, the jury may entirely disregard his testimony delivered before them, or give it only such weight as they may think it entitled to.” The latter of these alternatives might have been retained, but it was so clearly implied in the preceding part which was given, stating the different ways and means by which the credibility of a witness may be impeached—among which the last mentioned was, by making the proof so specified—that the defendant could not have been prejudiced by its erasure. As expressed in the quotation above it was certainly in bad company. There is a difference between disbelieving a part or even all of the testimony of a witness after fairly considering, weighing and comparing it and “entirely disregarding” it. The one maybe justified by his lack of intelligence, attention or memory, but the other only by his wilful falsehood in respect to a material fact.

Some questions put to one of the people’s witnesses, to show an unfriendly feeling against the defendant, were excluded, which might have been allowed ; but we think they were of little force and that their exclusion could not have affected the result. His feeling was probably as well shown otherwise as it could have been by them, and his testimony as to the assault was fully corroborated in all important particulars by that of the prosecutor, and of two other and unbiased witnesses—being all who were present besides the defendant.

It is said the judgment wrongly imposed upon plaintiff in error all the costs of the proceeding against both defendants, instead of those only which were made in prosecuting him, and that the court erred in denying his motion to apportion them. The record, however, does not enable-us to see that any was made which was not properly made for the prosecution as against him. It will not be so presumed.

Perceiving no material error the judgment will be affirmed.

Judgment affirmed.


text:
    Buker E. Martin et al. v. Andrew J. Field.

      Negotiable Instruments—Note—Real Property—Sale—Vendor's Lien-— Evidence.

    Upon a bill to enforce a vendor's lien for a purchase money note, the decree of the Circuit Court is affirmed, the sole question being as to alleged payment thereof.
    [Opinion filed November 23, 1889.]
    . In error to the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, for plaintiffs in error.
    Messrs. O. P. Thompson, E. P. Kirby and G. A. Barnes, for defendant in error.
   Conger, J.

This was a bill in chancery, brought by appellee against appellants to enforce a vendor’s lien. The bill alleges that in 1879 Field sold a lot of ground in Jacksonville, Illinois, to Martin, for $1,000, receiving therefor $200 in cash and Martin’s note for the remaining $800, due in five years, bearing eight per cent interest; that no part of the note had been paid, and praying for the enforcement of a vendor’s lien. The answer admits the purchase and the price, as alleged in the bill, the payment of the cash and the giving of the note, hut sets up, as a defense to the proceeding, that in 1880, by agreement of the parties, Martin conveyed the land to the wife of Field, for her life, and that of her husband (appellee), with remainder to his own wife, Mrs. Martin, by which the note was paid, the lien discharged and the note surrendered to appellant.

A general replication was filed, the cause referred to a master, and upon the evidence taken the court below found that the note had not been paid, but that there was due upon it the sum of §1,370.95, and a decree was entered accordingly. The whole controversy is one of fact and it would serve no good purpose to review the evidence upon this question.

We have carefully read it and are fully satisfied that it sustains the finding of the Circuit Court.

The decree will be affirmed.

Decree affirmed.


author: Per Curiam.

text:
    Indianapolis, Decatur & Springfield Railroad Company v. Davis & Finney.
    Railroads— Pleading — Demurrer — Rebate — Agreement by Freight A gent—Discrimination.

    In an action on a promise by the general freight agent of a railroad company to give a rebate on certain freight charges, it is held that the plea of said company, alleging that the promise was without authority and void under the statute against discrimination, should have been held good on demurrer.
    [Opinion filed November 23, 1889.]
    In error to the Circuit Court of Douglas County; the Hon. C. B. Smith, Judge, presiding.

      Mr. James A. Eads, for plaintiff in error.
    No brief was filed for defendants in error.
   Per Curiam.

This action was brought against the railroad company, on a promise by its general freight agent to pay hack to plaintiffs, by way of rebate, a certain portion of the regular freight charges on shipments to be made by them. The company attempted to defend, under pleas of the general issue, statute of limitations and a special plea setting out facts showing that the promise relied on, which it averred was made without authority from the defendant—was an undertaking to discriminate in favor of the plaintiffs, in violation of the statute, and therefore void. The court, having sustained a demurrer to this plea and excluded evidence offered to prove it, under the general issue, rendered judgment on its finding for plaintiffs for $1,540.49, to all of which exception was duly taken and preserved.

It will thus be seen that it was a companion case to that of Ervin against the. same company, reported in 118 Ill. 250, and for the reasons therein given this judgment also must be reversed and the cause remanded.

Reversed and remanded.


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    Thomas Snell et al. v. James De Land.

      Account—Master's Report.

    Decree of Circuit Court entered in accordance with a master’s report upon a complicated account is affirmed.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of DeWitt County; the Hon. C. Epler, Judge, presiding.

      Mr. Thomas F. Tipton, for appellants.
    Messrs. Moore & Warner, for appellee.
   Per Curiam.

This was a bill in chancery filed by appellants against appellee for partition and for an account. The parties owned as tenants in common two farms, and‘the management of one being in appellants and of the other in appellee, a long and somewhat complicated account between the parties had to be adjusted. The cause was referred to a special master, who took the evidence and reported his conclusions to the court; exceptions were filed thereto which, being overruled by the court, a'decree was entered in accordance with the finding of the master, that appellant pay to appellee the sum of $1,320. We have carefully examined the evidence, and the exceptions and reasons urged against the decree of the court, and perceive no error, but think that substantial justice has been reached.

It would serve no good purpose to enter into a detailed statement of the various items entering into the final decree, but we are satisfied with the conclusion reached by the court, and therefore the decree of the Circuit Court will be affirmed.

Decree affirmed.


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    The Ohio & Mississippi Railway Company v. The People ex rel., etc

      Railroads—Mandamus—Petition for, to Compel Company to Build, Sewer—Construction of Ordinance Granting Right of Way—Pleading.

    Upon a petition for mandamus to compel a railroad company to build a sewer in accordance with the requirements of a city ordinance, this court holds that the allegations that, the sewer was necessary to the proper drainage of the street in which it was to be built, and for the proper grading thereof, were essential under the terms of the original ordinances granting the right of way, by virtue of which it was soueht to compel defendant to build the sewer, and therefore, that a denial of these allegations by answer, raised a question of fact necessary to be determined, and that the demurrer to the answer should have been overruled.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Lawrence Maxwell, Jr., J. H. Matheny, Jr., Pollard & Werner and Ramsey, Maxwell & Ramsey, for appellant.
    Messrs. Patton & Hamilton and Timothy McGrath, for appellee.
   Wall, J.

This was a proceeding by mandamus to compel the appellant to make certain improvements in Salome avenue in the city of Springfield. The appellant demurred to the petition, but the demurrer was overruled and then an answer was filed to which the relator demurred. The latter demurrer was sustained, and the appellant not answering further, a judgment was entered according to the prayer of the petition, from which judgment an appeal is prosecuted to this court by the railroad company.

On the 5th of March, 1869, the city passed an ordinance granting to the Pana, Springfield & Northwestern Railroad Company the right of way upon any street or avenue of the city upon the following condition:

“That said company shall so grade, level and bridge said street or avenue, on both sides of their track, as to be at all times conveniently passable for teams or carriages, with convenient access to and from the same, as well as on both sides of each street and alley crossing said track.
“ The said company shall make, construct and at all times keep in repair, sufficient and suitable crossings for foot passengers, culverts, ditches and whatever else shall be needful for the complete and convenient passage, use and drainage of said street or avenue.” Various other provisions of the ordinance need not be noticed.

On the 7th of July, 1870, an ordinance was passed granting the right of way to the Springfield & Illinois Southeastern Railroad Company, with which the Pana, Springfield & Northwestern Railroad Company had been consolidated, on Madison street east from Third street, and upon Salome avenue, subject to all the requirements contained and prescribed in the said ordinance of March 5, 1869.

The appellant company became the owner of the railway of the last named consolidated company, with all the rights and privileges of the said company, including the track and right of way on Salome avenue, about February 1, 1876, and has ever since operated the said property. On the 8th of August, 1887, the city passed an ordinance requiring the building of a sewer along the west line of said avenue according to certain specifications set out in the ordinance. The petition averred that the building of the sewer was necessary for the drainage of said avenue, and that without the building of said sewer said avenue can not be conveniently passed over and used, and that said avenue then was wholly impassable on one side of the railroad track on account of not being drained, leveled and graded. The last named ordinance further provided:

“ Sec. 3. After the laying of said sewer, as above provided, the street shall be graded and filled so as to allow teams and carriages to conveniently pass along the avenue on either side of the track.
“ Sec. 4. All said work of laying said sewer and grading said street shall be done by the Ohio & Mississippi Railway Company, and all materials therefor shall be furnished by said railway company.”
“The said Ohio & Mississippi Railway Company shall begin the work within thirty days after the passage of this ordinance, and shall prosecute the work to completion as speedily as consistent with good workmanship.”

The petition averred that the railroad company had refused, after notice and demand, to make said improvement, and it prayed for a peremptory mandamus to compel compliance with said ordinance. The answer averred—

“1. That at and before the time said railroad track was laid in said Salome avenue, a natural watercourse or ravine, commonly known as the Town Branch, being about twenty-five feet in width, and descending by precipitous embankments to a depth of from ten to fifteen feet, ran along the extreme west side of said avenue, and that the only place for travel was by a road in the middle of the eastern side of said avenue. There was no access from the east side of said avenue, across said ravine, to the property abutting on the west side of said avenue. All of said property was and still is unimproved and is occupied only for pasturage. And there was and is no way of passing from the east to the west side of said ravine, except over the streets which cross and intersect said Salome avenue, at which point said ravine passes under said intersecting streets through culverts. Said large main sewer, commonly known as the Town Branch, mentioned in the petition, emptied and discharged into said ravine, at the intersection of Mason street with Salome avenue, and the sewage coming from said main sewer was carried thence along and in said ravine to a point beyond the city limits. Said railroad track is laid along the east edge of said ravine. It occupies about nine feet in width, including ties and all other structures, and does not touch or come at any point within twenty feet or more of the customary and only place of travel on said avenue, which is, as alleged in the petition, along the middle of the eastern side of said avenue. Said railroad track is on grade with said roadway in said avenue, and in no way interferes with, or affects the same, or the use thereof for travel.”
“Said avenue is, and ever since the defendant has occupied it has been, perfectly and completely drained. The sewer referred to in said ordinance of August, 1887, can not be used, and is not intended to be used for the drainage of said Salome avenue, but is simply an extension of said main sewer, which, at the time of the laying of said track, and now, empties into said ravine at Mason street and Salome avenue. Said proposed sewer is without openings or provisions for the local drainage of Salome avenue. The work required by said ordinance, of this defendant, would cost about $20,000.”
“It is in no wise made necessary by the defendant’s track or use of said avenue, but is simply an attempt on the part of the petitioner to require this defendant to transform said ravine into a walled sewer, and thereupon to build a street over the same. And the defendant submits that such is not the true construction and intent of said original ordinances, and that the defendant is under no obligation, by virtue of said original ordinances or otherwise, to comply with said ordinance of August, 1887. The defendant denies that said avenue is impassable, or that the use of the same for travel is in any way affected, either by the defendant’s track or by the defendant’s use thereof. There are no buildings abutting on either side of said avenue, and the condition of said avenue, with respect to drainage and roadway, for travel, is the same, or better now than it was before said track was laid.”
“2. For further answer the defendant says that if such, as claimed by petitioner, be the true meaning and effect of said ordinance, then the obligation in that behalf imposed by said ordinance, was completely broken by said Springfield and Illinois Southeastern Railway Company long before the defendant acquired any interest in or title to said railway, which title was acquired by mesne conveyances through a sale of said railway at foreclosure, in 1875; whereas, said Springfield and Illinois Southeastern Railway Company had laid said track in said avenue in 1870, and used and occupied the same continuously thenceforth for more than five years before the defendant acquired said railway. And said obligation did not pass to and devolve upon this defendant.”
“ 3. For further defense the defendant says that if such, as claimed by the petitioner, be the true construction and effect of said original ordinances, then the obligation to build said sewer, as insisted upon in said ordinance of August, 1887, accrued more than seventeen years before the commencement of this suit, and is barred by laches and by the statute of limitations. Wherefore this defendant prays to be dismissed hence with its costs.”

Assuming, without deciding, that on the case presented by the petition mandamus is the proper remedy, and that the requirements of the original ordinances, granting the right of way, are binding upon the appellant as the successor of the companies named in those ordinances, and that the duty thereby imposed is a continuing one to be enforced whenever it may become necessary, the only question we propose now to consider is, whether the answer shows such a state of facts as to bar the relief sought by the petition. The averment of the petition important to be observed in this connection is, that such sewer is necessary, first, for the proper drainage of the street, and second, for the proper grading thereof, in order to render the same passable for teams and carriages. This averment was essential, since by the terms of the original ordinance it is apparent that the company, using' the street for railroad purposes, was required to do no more than was, or should become “needful for the complete and convenient passage, use and drainage of said street and avenue.” Such, indeed, is the express language of the ordinance; but the condition here expressed would be a legal inference, had these words been omitted. In view of the provisions of the original ordinance, as well as of the second ordinance granting the right of way to the consolidated company, it would be unreasonable to require the making of an improvement not necessary for the drainage or use of the street.

Therefore the averment of the petition in this respect was proper and requisite, and if so, the answer properly met the averment by setting up such a state of facts as would demonstrate that the demanded improvement was not necessary for either the drainage of the street or for convenient passage over the same. It can not be that under pretense of draining this street the railway company may be compelled to make a sewer wholly unnecessary for the drainage of the particular street, and useful only to drain and carry away the entire sewage of the city at large. And if the facts set forth in the answer are true, there is no occasion to convert so much of the street as is occupied by the Town Branch into a roadway, in order to afford a convenient passage for teams and carriages along said Salome avenue.

Whether the demanded improvement is needful for the drainage of the avenue or for convenient passage thereon is a question of fact, but when the answer denies such needfulness it interposes a complete defense to the petition. It follows that it was error to sustain the demurrer to the answer and the judgment will therefore be reversed and the-cause remanded.

Reversed and remanded.


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    The City of Hoopeston v. Catherine A. Eads.

      Municipal Corporations—Personal Injuries—Defective Sidewalk— Contributory Negligence—Burden of Proof—Duty of City—Notice—“Considerable Time."

    1. In an action against a city for an injury received from a defective sidewalk, the burden is on the plaintiff to prove due care.
    2. The duty of a city to keep its sidewalks in repair is not an absolute one. Reasonable diligence in that- behalf is all that is required.
    3. The phrase, “ a considerable time,” is too indefinite for use in instructions to a jury.
    4. Where the proof on the part of the plaintiff is inconclusive as against a strong defense made by the city, in an action for alleged negligence, it is specially important that the instructions given should be accurate and not conflicting.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of Vermillion County; the Hon. E. P. Vail, Judge, presiding.
    Messrs. H. M. Steely and J. B. Mann, for appellant.
    Where walk has recently been placed in good repair and the city has had no notice of the defect, and it has not existed for such a length of time that the city, if using due diligence, might have known of it, the city is not liable. The City of Chicago v. McCarthy, 75 Ill. 602; The City of Chicago v. Murphy, 84 Ill. 224; The City of Chicago v. Watson, 6 Ill. App. 344.

      So if defendant convicts plaintiff of negligence at the time of the accident. C. & E. I. R. R. Co. v. O’Conner, 13 Ill. App. 62.
    As to instruction shifting burden of proof, see Stearns v. Reidy, 18 Ill. App. 582.
    Error in one instruction not cured by others that are proper. P. & P. U. Ry. Co. v. O’Brien, 18 Ill. App. 28; C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. & N. W. Ry. Co. v. Dimick, 96 Ill. 42.
    Messrs. William A. Young and Willitts & Johnson, for appellee.
    We think the following authorities sustain this case and many of these are in the circumstances like case at bar. Schmidt v. C. & N. W. Ry. Co., 83 Ill. 405; Sterling v. Thomas, 60 Ill. 264; Champaign v. Patterson, 50 Ill. 61; Chicago v. Johnson, 53 Ill. 91; Springfield v. LeClare, 49 Ill. 476; Chicago v. Crooker, 2 Ill. App. 279.
    The criticism and error assigned on the instructions is unwarranted. Appellants misconceive the scope of the first instruction. It simply states a plain proposition of law, and that if they found the fact, then appellant was liable, unless they found the other party was not exercising reasonable and ordinary care. It is not required that all the law on the subject be stated in each instruction, nor is it necessary to note all the exceptions to the rule. If the exceptions are covered in other instructions such an instruction will not be considered vicious. Stratton v. C. C. Horse Ry. Co., 95 Ill. 25; Peeples v. McKee, 92 Ill. 397.
    The fifth instruction, it is claimed, in the use of the words, “ a considerable time” is vicious. The words may not be the most appropriate to use, but we find the expression used by the Supreme Court in its opinions. Webster, in his definition of “considerable,” says it means “noteworthy, of notice; requiring to be observed or attended to.” That being the case, the jury certainly could not have been misled. Chicago v. Dalle, 115 Ill. 386; Springfield v. Doyle, 76 Ill. 202; Ill. Cent. R. R. Co. v. Shultz, 64 Ill. 172.

      We submit that when the whole series of instructions are construed together, as they should be, the whole law has been covered, and that the jury could not have been misled. Even though some of the instructions were faulty they were cured by the series. Kendall v. Brown, 86 Ill. 387; T., W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; Myer v. Mead, 83 Ill. 19; Aurora v. Gillett, 56 Ill. 132; Durham v. Goodwin, 54 Ill. 469.
   Wall, J.

The appellee recovered a judgment against the appellant for $875 on account of injuries sustained by reason of a defective sidewalk. There is no doubt that the plaintiff was injured and that the damages awarded are not unreasonably high, but upon the proof it is quite a close question whether she was exercising ordinary care and whether the defendant had notice, actual or constructive, of the defect in the walk.

The accident occurred about 5 o’clock in the afternoon of September 18, 1887. While not a bright, sunshiny day it was not cloudy, and the hole in the walk, six inches wide and a foot or more in length, was plainly to be seen by any one who was observing. The plaintiff’s daughter, who was with her, saw the hole and stepped around or over it, but the plaintiff, failing to notice it, stepped into it and received the injury complained of. It was, of course, the plaintiff’s duty to use ordinary care to perceive the danger and avoid it. It was necessary to so allege and prove as a condition of recovery. This was one of the affirmative features of her case and the burden was upon her to make it out by the weight or preponderance of the evidence. In this connection complaint is made of the following instruction given for plaintiff:

1. “ The court instructs the jury that it is the duty of the city to make and keep its streets and sidewalks within the city in a reasonably safe condition for pedestrians to pass along and over the same in the prosecution of their reasonable and lawful avocations, either for business or pleasure ; and in this case, if the jury find that the defendant has failed and neglected to do so, then it is liable, unless they further find the plaintiff was not exercising reasonable and ordinary care in passing over said street or right of way.”

It will be noticed that the instruction seems to fix liability upon the facts supposed, unless the jury find the plaintiff was not exercising reasonable and ordinary care, etc., as though this was a matter of defense, and apparently permitting the jury to shift the onus in this respect from plaintiff to defendant. The instruction is faulty for this reason, and for the further reason that it states it to be the absolute duty of the city to keep its streets in reasonably safe condition; whereas it is only required to use reasonable diligence to that end, and .whenever a street becomes unsafe the city is not liable unless it has notice or unless such lapse of time has intervened, that in the exercise of reasonable care and diligence it would have known of the defect and might have made the necessary repairs. Dillon on Municipal Corporations, 2d Ed., Sec. 790; City of Chicago v. McCarty, 75 Ill. 602; City of Centralia v. Krouse, 64 Ill. 19.

Complaint is made also of the following instruction given at the instance of the plaintiff:

5. The court instructs the jury that it is the duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons to travel over, and when a street and sidewalk on a public street gets out of repair, so that it is unsafe to travel upon, and so remains a considerable time, notice will be presumed and proof of actual notice will not be required. (Given.)

This is faulty for the reason assigned with reference to the first instruction, as to the non-absolute duty of the city and because it does not correctly state the rule with regard to notice. “ A considerable time ” is a very indefinite expression, and while it may he found in some judicial writings, yet it would hardly be admissible where the court is laying down a rule of law to a jury. As just observed the city is not liable where there is no actual notice, until there has been a sufficient length of time, that by the use of ordinary care the defect would have been ascertained. In the present case the evidence very strongly tends to prove that the walk in question had been relaid but a very short time before the accident; that it was the custom of the street commissioner to pass over and inspect all the walks in the city on Friday and Saturday of each week; that he probably did so in this case (the accident occurring on Sunday), and that the break in the walk was caused by a horse stepping upon or running over it. The city thus made out a strong defense, against which the proof, on the part of the plaintiff, was quite inconclusive, if not positively weak. In such condition of the proof the well-settled rule of the Supreme Court is that the instructions should be accurate, and that there should be no conflict between those given at the instance of the respective parties. We are inclined to consider this a case where the rule should be applied, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


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    William H. Morgan et al. v. The Bloomington Mutual Life Benefit Association.

      Life Insurance—Membership—Certificate in Benefit Association—Action on—Statements in Application—Representations or Warranties—Question of Law—Evidence.

    1. Where a contract is reduced to writing there is no fact affecting its terms for the jury to find. The law then determines the intent of the parties from the written expression, and so fixes its meaning, which it is the province of the court to declare.
    2. In an action on a certificate of membership in a mutual benefit association this court holds, that the answers in the application were, as matter of law, unconditional warranties, and that evidence tending to show their simple untruth, without regard to the knowledge or good faith of the insured or beneficiaries, was admissible.
    [Opinion filed November 23, 1889.]
    In error to the Circuit- Court of McLean County; the Hon. A. Sample, Judge, presiding.

      Messrs. Tipton & Beaver, for plaintiffs in error.
    The burden of proving answers made by the assured in his application to be untrue, is upon the defendant. N. W. M. L. Co. v. Hazlet, 4 N. E. Rep. 582; Ins. Co. v. Gridley, 100 U. S. 614; P. & A. Life Ins. Co. v. Ewing, 92 U. S. 377; Swik v. Home Ins. Co., 2 Dill. 160; Hancock Ins. Co. v. Daly, 65 Ind. 6; National Association v. Grauman, 7 N. E. Rep. 233.
    No statements are to be considered as warranties, except as it is expressly and particularly provided in the contract that they shall be such. Alabama Gold L. I. Co. v. Johnson, 2 So. Rep. 125, and cases cited. Ill. M. Ben. S. v. Winthorp, 85 Ill. 537.
    The application is only to be a part of the contract, for so much as it is stipulated and agreed in the application that it shall be; and is referred to in the certificate or policy as the basis of the contract. Am. L. I. Co. v. Day, 39 N. J. Law, 89; Price v. Phœnix Ins. Co., 17 Minn. 504; Wilson v. Conway Ins. Co., 4 R. I. 143; Daniel v. Hudson River Co., 12 Cush. 424; Richmond v. Hart F. I. Co., 47 Wis. 89.
    The certificate and the whole contract are to be strictly construed against the company. Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Schmidt v. Ins. Co., 41 Ill. 295; Continental L. Ins. Co. Rogers, 119 Ill. 475.
    Whether statements made by the assured in his application are warranties, is a question of fact or intention to be found by the jury. American L. Ins. Co. v. Day, 39 N. J. Law, 89; May on Ins., Sec. 159, p. 185, and cases cited in note 1; Schnider v. Farmer’s Ins. & Loan Co., 13 Wend. 92.
    That statements made by the assured were material to the risk are questions of fact to be decided by the jury. Yates v. Mad. Co. Ins. Co., 2 Comstock, 44, and cases supra.

    Mr. F. Y. Hamilton, for defendant in error.
    A warranty is an agreement in the nature of a condition precedent, and like that, must be strictly complied with. May on Ins., Ch. VI, p. 179; Daniels v. H. R. Fire Ins. Co., 12 Cush. 416; Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381; H. Ins. Co. v. Gray, 91 Ill. 159.

      The application was made a part of the contract of insurance and a warranty on the part of the assured. May on Ins., Ch. VI, Secs. 158-9, and cases cited; Continental L. Ins. Co. v. Rogers, 119 Ill. 474.
    Facts alleged to be true in the declaration must be proven. The declaration avers that statements in application are true and that no facts relating to health had been suppressed. This put the burden of proving them to be true on the plaintiffs. This is fundamental and needs no authorities to support it.
   Pleasants, P. J.

Plaintiffs in error are the father, mother, and sister of Charles A. Morgan, and brought this action upon a certificate of membership, issued to him by the defendant in error, dated August 27, 1886, declaring his right to participate in its beneficiary fund to the amount of $4,900, payable sixty days after his death, to said plaintiffs, respectively, in the parcels therein specified.

Charles died July 4, 1887. Two months before that event the manager of the association wrote to him returning the amount of his last assessment ($3.75), and stating that for reasons given in a preceding letter it was obliged to declare his policy void and canceled, and had so marked it on its books; and the defense set up on the trial, under the general issue was, that material statements made by deceased in his application for insurance, and warranted to be true, were untrue. The jury returned, with divers special findings, a general verdict for the defendant, on which the court entered judgment after overruling a motion for a new trial.

Among the questions and answers in the application were the following: Q. Has your general health been uniformly good for the past ten years ? Ans. Yes. Q. Has any physician ever given any unfavorable opinion of the insurableness of your life? Ans. No. Q. Have you personally consulted a physician, been prescribed for or professionally-treated within the past ten years ? Ans. No.”

And among the special interrogatories to the jury on the part of the plaintiffs and answers thereto were the following:

“ Q. Did Charles A. Morgan know, at the time of the making of the application for insurance, on August 26, 1886, that he had had any trouble with his lungs or that then his lungs were affected? Ans. Yes. Q. Did the assured, Charles A. Morgan, at the time he made his application for insurance answer all material questions truthfully? Ans. Mo. Q. Was the spitting of blood, as shown by the evidence, a disease, or simply a temporary ailment? Ans. Disease. Q. Was the affliction of Charles A. Morgan spoken of by Dr. Morris throat trouble or lung trouble? Ans. Lung trouble.” To special interrogatories, submitted by the defendant, the jury answered that he had disease and hemorrhage of the lungs and spitting of blood in the spring of 1886; that his health had not been uniformly good during the period of ten years next before his application, and that he had been prescribed for and professionally treated within that period.

Dr. Morris, a graduate of Bush Medical College, Chicago, and in active practice for sixteen years, testified that in March, April and May, 1886, he examined, prescribed for and professionally treated the deceased, who was then suffering from disease and hemorrhage of the lungs, and had a cavity in one of them, and that on the occasion of his last visit—about May 14th, he told Wm. H. Morgan, father of deceased and one of the plaintiffs herein, that by reason of such disease Charles would probably not live long, and that he, the doctor, could not, under any circumstances, recommend him for insurance.

The only scientific or professional evidence tending to show he was not then so diseased was the testimony of Dr. Gardiner, also a regular graduate and of thirty years’ practice, who examined him at the time of his application and certified the result. He had never before heard of the applicant, nor does it appear that he ever saw him again. He had but little independent recollection of the particulars of the examination. Referring to his certificate, however, he testified that his general appearance was that of a fairly healthy young man; that he didn’t find anything the matter with his lungs, and that the chest expansion in respiration shown by the measurement, as certified, would be taken, as a rule, to indicate that they were sound.

The certificate itself, if admissible, would be but a duplicate of his testimony and not an addition to it, and the other doctors, Hallett and Orner, having no personal knowledge of the case, testified only as experts that if Dr. Gardiner was right they would think it highly probable Dr. Norris was mistaken. Of course the converse must be equally true. Of the lay witnesses, some testified that during that spring and summer Charles looked well and did farm work, while others stated that at times he looked ill and weak and had to quit work. Dr. Norris was supported by uncontradicted proof of statements by the deceased and his father that he had hemorrhages which they regarded as being clearly from the lungs and very alarming.

Upon this evidence, which is substantially all that related to his actual condition in respect to health before and at the time of his application, in connection with his answers and statements in regard to it in his application, as above shown, it is manifest that each of the special findings mentioned was fairly supported, and that the jury might also as well have further found, if asked, that a physician had, after examination, given a very decided opinion unfavorable to the insurableness of his life; that if these findings were true his answers to each of the three questions stated were untrue; and that each of those answers contained a statement of fact which was material to the risk, notwithstanding the further finding that on August 26, 1886, when he made his application, he was in good health. Whatever was his apparent condition at that time, or the association may have believed it to be, or the fact really was, it was important to know what it had been or appeared to be so shortly before; nor can it be doubted that if it had known bis apparent condition in the spring, or Dr. Norris’ opinion of his insurableness, as then expressed to W. H. Morgan, it would have made further inquiry or peremptorily declined to entertain the application.

One of the alleged errors most confidently complained of was the admission of that opinion. Charles was not present when it was said to have been expressed, nor does it appear that he or his mother or sister were ever informed of it, or that either of the plaintiff's had any agency in procuring the insurance or knew that they were to he the beneficiaries.

It is therefore claimed that this evidence had no tendency to show fraud on their part, and contended that on no other ground could it be competent, especially as against the mother and sister of the deceased. But it is certainly clear that if it was competent to show the simple untruth of the answer that no physician had ever given such an opinion, without regard to the knowledge or belief, or good or bad faith of the respondent, or the innocence of the plaintiffs in the premises, then the admission of this evidence was proper; and whether it was competent to show it would depend upon the question whether that answer was a warranty or only a representation. If a warranty, its untruth was a breach, and any competent evidence of a breach would be competent against anybody claiming under the contract, even though they were, as these plaintiffs were not, purchasers for value.

In the instructions given to the jury the answers to the three questions above quoted were held to be warranties and material to the risk. Appellants insist it was the province of the jury to find as to both these points, because they depended upon a matter of fact, to wit, the intention of the parties. Perhaps it would be more accurate to say, up)on their intention as manifested, and we apprehend the rule to be that where this is done by oral declarations or acts in pais provable only by evidence in its nature subject to explanation and contradiction, it is for the jury to find it, and it determines the terms of the several stipulations and also their materiality when that is in issue. But where the contract is reduced to writing there is no fact affecting its terms or construction for the jury to find. The law then conclusively determines the intention from the written expression, and so fixes its meaning, which it is therefore the province of the court to declare.

Did the court truly declare its meaning in this case? The contract is evidenced by the certificate of membership set out in haec verba in the declaration, which includes whatever else is therein by reference expressly made a part of it; and the application for membership is so referred to. The certificate states that “in consideration of $10 membership fee having been paid * * * and in consideration of the warranted representations, covenants and agreements made in his application, No. 7,674, which is hereby made a part hereof and the basis of this membership, * * * this certificate of membership is issued to Charles A. Morgan,” etc. The application is therein further stated to he “ on tile in the office of said association and made a part of this certificate, as warranted statements on the faith of which this certificate is issued.” Warranted representations or statements are not mere or simple representations, but are warranties.

There also appears in the body of the certificate a stipulation “that in case the statements made in the application are not in all respects true * * * then this certificate shall be null and void;” and the application concludes with an agreement, signed by the applicant, that the declaration therein “ shall be the basis of the contract, * * * and that if any misrepresentations, or fraudulent or untrue answers have been made * * * then this agreement shall he null and void, and all moneys which have been paid shall be forfeited to the association.” By the effect thus stipulated to be given to them, the intention of the parties to make these answers unconditional warranties is further and fully manifested. The statement of them as true is not qualified or limited by any reference to the knowledge, recollection, information or belief of the respondent. Therefore the honesty of his belief and statement, if shown, would be immaterial; but it is clear that the first and third of these answers—whatever may be -thought of the second—related only to matters necessarily within his knowledge, in respect of which a warranty might well be required and given, and hence are not within the reason of the opinions in The Masons’ Benevolent Society v. Winthrop, 85 Ill. 537, and the Continental Ins. Co. v. Rogers, 119 Ill. 474. Their materiality is apparent upon their face, independent of any express agreement that- they should be so regarded. Nor was the legal effect of these warranties at all modified or changed by the negative answer of the respondent to the question in the application whether he believed himself to be free from all diseases, hereditary or otherwise, tending to shorten life—an answer which, in view of his positive statements concerning his own health and that of his parents, may well be suspected to have been given under a misapprehension of the question—nor by the facts, if they were facts, that he was in good health at the time of his application, and that his death was the immediate effect of a strain or other cause thereafter arising. We are therefore of opinion that the instructions given to the jury on this point were substantially correct.

It is also complained that Mrs. Gilmore was allowed to testify to the fact of hemorrhage on mere hearsay. We think, however, that the fact of hemorrhage was not the subject of the inquiry made of her, and that she did not testify to it at all. It was with reference to the time when she heard of the hemorrhage that she was asked to fix the time of her visit to the applicant’s house, when, as she had stated, he was sick.

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

Judgment affirmed.