text:
    Illinois Central Railroad Company v. Jacob F. Miller et al., for use, etc.

      Railroads—Freight—Delay in Transportation—-Limitations—Act of 1849, Secs. 11, 18—Shipping Receipts—Bills of Ladling—Former Adjudication—Evidence—Practice—Finding of Facts.

    1. To be a contract in writing a written instrument must set forth the undertakings of the parties to it so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated, to ascertain the extent and force thereof.

      2. Where a shipping receipt upon which recovery is sought to be had does not contain any express agreement to forward certain goods to their destination, to ascertain the carrier’s undertaking with reference thereto, resort must be had to the duties imposed, and promises implied by law.
    8. A suit against a common carrier ma.y be maintained in the name of any person having either a general or special property in the goods involved, and an action properly brought by such person, will be a bar to any subsequent suit against the carrier by another party having either a general or special property in the same goods for the same damages.
    4. The presentation of shipping receipts, attached to which are drafts upon purchasers of grain, drawn by sellers thereof, shows that the property is in the hands of the carrier, and amounts to a delivery to the purchaser.
    5. In order that a former judgment shall amount to a bar to a subsequent suit, it is enough that the status of the action was such that the parties might have had their suit disposed of according to their respective rights, if they had presented all their evidence and the court had properly understood the facts and correctly applied the law. It either failed to present all bis proofs, or improperly managed bis case, or subsequently discovers additional evidence in his behalf, or if the court finds contrary to the evidence or misapplies the law, the judgment, until corrected or properly vacated, is as conclusive upon the parties as though it had settled their controversy in accordance with the principles of abstract justice.
    6. Reasonable time, within the meaning of a contract of affreightment, must be determined by the circumstances attending and surrounding a given transaction.
    7. It seems, that if a shipper promises the carrier to do something which will enable the latter to make the time of transportation shorter than it otherwise would be, and fails to perform it, such fact can be shown by the latter in excuse for the delay, and without changing or modifying the contract of affreightment.
    8. In the case presented, this court holds that there was no such delay in the transportation of the grain involved, as would render defendant liable in damages herein; that in a former action defendant was charged with the same negligence with reference to the same merchandise as is here set up, and that the same is a bar to the present suit.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Williams & Capen, for appellant.
    The instruments sued upon in these cases are not simple contracts in writing within the meaning of section 17 of statute of limitations of 1819, but are simple receipts for the goods, from which the law implies a verbal promise to carry to the place of destination, but no such promise is expressed in the writing; and an action upon such implied promise falls within section 18 of that statute, and is barred in five years. Daniel on Neg. Insts. §§ 35, 36; Currier v. Lockwood, 40 Conn. 349; Beeching v. Westbrook, 8 M. and W. 411; Garland v. Scott, 15 La. Ann. 143; Smith v. Allen, 5 Day, 337; Bowles v. Lambert, 54 Ill. 237.
    The owner or one having a special property in the goods, can alone sue for damage to the goods in the absence of an express written contract for the carriage.
    To constitute an instrument a bill of lading, an essential element is an express promise or contract to carry the freight to its destination and there deliver to the consignee. The instruments sued upon in these cases contain no such promise or contract, and therefore are not bills of lading. Webster’s Dictionary, “ Bill of Lading; ” Hutchinson on Carriers, §§ 120, 122; Daniel on Neg. Insts. § 1728; Benjamin on Sales, § 813, note (f); Angell on Carriers, § 464; Bacon’s Abr., Art. Merchant and Merchandise, (l); Lickbarrow v. Mason, 1 S. L. C., top page 759, 719 ad fin. 722, 732; 1 Schouler’s Pers. Prop. 408; Hyde v. Trent Co., 5 T. R. 389 (397); Wayland v. Moseley, 5 Ala. 430; May v. Babcock, 4 Ohio, 334, (341); Rowley v. Bigelow, 12 Pick. 307.
    For cases showing the difference between a bill of lading and a shipping receipt, see Thompson v. Trail, 2 C. & P. 334; Craven v. Ryder, 6 Taunt. 433; Coosa Co. v. Barclay, 30 Ala. 120; Holbrook v. Vose, 6 Bosw. 76, (109); Hathesing v. Laing, L. R. 17 Eq. Cas. 92 (7 Moak, 705).
    Wherever, in our own reports, a bill of lading is involved, it contains an express promise “ to forward ” or “ to transport.” Dunseth v. Wade, 2 Scam. 285; Dixon v. Dunham, 14 Ill. 324; Bissell v. Price, 16 Ill. 408; I. C. R. R. Co. v. Johnson, 34 Ill. 389; T. P. & W. R. R. Co. v. Merriman, 52 Ill. 123; I. C. R. R. Co. v. Owens, 53 Ill. 391; C. & N. W. R. W. Co. v. Montfort, 60 Ill. 175; Field v. C. & R. I. R. R. Co., 71 Ill. 458; M. D. & T. Co. v. Moore, 88 Ill. 136; M. C. R. R. Co. v. Boyd, 91 Ill. 268; Adams Ex. Co. v. Boskowitz, 107 Ill. 660; W., St. L. & P. R. W. Co. v. Jaggerman, 115 Ill. 407; Wallace v. Long, 8 Ill. App. 504.
    The only case, we think, that can be claimed, to be an exception to this is that of I. C. R. R. Co. v. Frankenberg, 54 Ill. 88, but there the instrument is called “ a receipt or bill of lading,” indiscriminately; the decision in no way depends upon that question, nor is it discussed.
    The written instruments sued upon contain no promise to carry, and therefore give no right of action in themselves against the carrier, and the plaintiffs in these suits having neither a general nor special property in the goods, can not maintain the actions.
    The owner or any one having a special property in the goods, is a proper party to sue the carrier for loss or damage on the goods for the wrongful act or default of the carrier, and a judgment in such suit is a bar to an action brought by any one else for the same damages. See Hutchinson on Carriers, Chap. XIII, and cases infra.

    The judgment in the case of Cobb, Christy & Co. (who were the owners of the corn in controversy) is a bar to these actions, which are for the identical damages. Green v. Clark, 12 N. Y. 343; Bigelow on Estoppel, 77-8.
    If a party have an interest in the result of a suit, which might be brought either in his name or the name of another, and it is, by his consent, brought in the name of another, and he consents to the carrying on of the suit, and is to participate in the amount recovered, if there be a recovery, he is a privy in law and bound by the judgment, and such judgment will be a bar to a new suit instituted by the party who participated in carrying on the former suit. Cole v. Favorite, 69 Ill. 457; Hanna v. Read, 102 Id. 596; Drake v. Perry, 58 Id. 122 ; Bennitt v. W. S. M. Co., 18 Ill. App. 17, 119 Ill. 9; Att’y Gen. v. C. & E. R. R. Co., 112 Ill. 520; Harmon v. Auditor, 22 Ill. App. 135 ; Woodhouse v. Duncan, (Ct. App. N. Y.), 13 N. E. Rep. 334; Green v. Clark, 12 N. Y. 343; Miller v. L. M. T. Co., (U. S. Cir. Ct. Mo.), Chi. Leg. News, Oct. 1, 1888, p. 18; Stoddard v. Thompson, 31 Ia. 80; McNamee v. Moreland, 26 Ia. 69; Finn v. W. R. R. Co., 112 Mass. 524; I. C. R. R. Co. v. Cobb, 64 Ill. 132-3; Calkins v. Allerton, 3 Barb. 171; Smith’s Leading Cases, II, 435; Crow v. Bowlby, 68 Ill. 23.
    The judgment or decree of a court possessing competent jurisdiction is final, not only as to the matters actually determined, but as to every other question, title and right involved in the litigation and passed upon by the court. Hawley v. Simons, 102 Ill. 115; Hanna v. Read, 102 Ill. 595 (605); Cole v. Favorite, 59 Ill. 457 ; Gray v. Gillilan, 15 Ill. 453; Vanlandingham v. Ryan, 17 Ill. 25; Taylor v. Field, 22 Ill. App. 436.
    It is the duty of the consignee promptly to receive from the carrier the goods at the point of destination. If he fails to do this, it then becomes the duty of the carrier to warehouse them, and to take reasonable care of them for a reasonable time, on account of the consignee, or whom it might concern. Redfield on Railways, I, pp. 52 and 53; II, p. 65 ; pp. 16, 17 and 18; Angell on Carriers, pp. 502, 291; Porter v. C. & R. I. R. R. Co., 20 Ill. 407; C. & A. R. R. Co. v. Scott, 42 Ill. 132; Crawford v. Clark, 15 Ill. 561; Ostrander v. Brown, 15 Johns. 39; Hemphill v. Chenie, 6 W. & S. 62; G. W. Ry. v. Crouch, 3 H. & N. 183; Thomas v. B. & P. Ry. Co., 10 Metc. 472.
    Messrs. Hamilton Spencer, Benjamin & Morrissey and John E. Pollock, for appellees.
    The bills of lading or shipping receipts are contracts in writing. The Delaware, 14 Wal. 579; Russell v. Whipple, 2 Cow. 536; Kimball v. Huntington, 10 Wend. 675; Luquer v. Prosser, 1 Hill, 258; Sackett v. Spencer, 29 Barb. (N. Y.), 180; Franklin v. March, 6 N. H. 364; Cummings v. Freeman, 2 Hump. (Tenn.) 143; Carver v. Hayes, 47 Me. 257; Brady v. Chandler, 31 Mo. 28; Huyck v. Meador, 24 Ark. 191; Anderson v. Pierce, 36 Ark. 293; Ashley v. Vischer, 24 Cal. 322, 328; Jacquin v. Warren, 40 Ill. 459; I. C. R. R. Co. v. Schwartz, 13 Ill. App. 496; I. C. R. R. Co. v. Frankenberg, 54 Ill. 90, 99; I. C. R. R. Co. v. Johnson, 34 Ill. 389, 393.

      The consignor can maintain an action of assumpsit against the carrier for a breach of the contract embodied in the bill of lading given to him by the carrier. Blanchard v. Page, 8 Gray, 281; Hooper v. C. & N. Ry. Co., 27 Wis. 81; Southern Ex. Co. v. Craft, 49 Miss. 480; Carter v. Graves, 9 Yerg. (Tenn.) 446; Finn v. Western Railroad, 112 Mass. 524; Atkinson v. C. R. I. & P. Ry. Co., 80 Mo. 213; Northern Line Packet Co. v. Shearer, 61 Ill. 263; C. & A. R. R. Co. v. Shea, 66 Ill. 472; I. C. R. R. Co. v. Schwartz, 13 Ill. App. 490; O. & M. R. R. Co. v. Emrich, 24 Ill. App. 245; Hutchinson on Carriers, § 736; Schouler on Bailments and Carriers (2d Ed.), § 570.
    It is of the essence of every kind of estoppel, that the subject of it should be certain. When it is doubtful (eitherfrom the record or from evidence designed to explain the same) upon which of several issues the judgment proceeded, the subject is still at large. It is essential that the issue in the second action, upon which the judgment is brought to bear, was a material issue in the first action, necessarily determined by the judgment therein, and that the former judgment was upon the merits. Bigelow on Estoppel (4th Ed.), 55, 57; Russell v. Place, 94 U. S. 606, 608, 610; Chrisman v. Harman, 29 Grattan, 494, 499; Hooker v. Hubbard, 102 Mass. 239, 245; Foster v. Busteed, 100 Mass. 409, 411; Burlen v. Shannon, 99 Mass. 200; Cook v. Burnley, 45 Tex. 97, 117; Packett Co. v. Sickles, 5 Wal. 580, 592; Hunter v. Davis, 19 Geo. 413, 415; Aiken v. Peck, 22 Vt. 225, 260; Church v. Chapin, 35 Vt. 223, 231; Dutton v. Woodman, 9 Cush. 255, 261; Supples v. Cannon, 44 Conn. 424, 428; Hughes v. United States, 4 Wall. 232, 237.
    Where a railroad company, partially under the military control of the government, receives freight and issues its bills of lading for the same without containing any exception as to the governmental control, it thereby assumes the duties of a common carrier of goods for hire, and is subject to the liability attaching to that function. I. C. R. R. Co. v. McClellan, 54 Ill. 58; I. C. R. R. Co. v. Ashmead, 58 Ill. 487; I. C. R. R. Co. v. Cobb, Christy & Co., 64 Ill. 128; I. C. R. R. Co. v. Schwartz, 13 Ill. App. 490.

      Except in the recital or the acknowledgment of the goods, and of their quantity and the condition when received, bills of lading are strict’y written contracts between the parties, and come within the general rule which prohibits the introduction of parol evidence to contradict or vary written contracts. Hutchinson on Carriers, § 126; The Delaware, 14 Wal. 579, 601; 1 Greenleaf on Evidence, § 275; M. Ins. Co. v. Morrison; 62 Ill. 242; Bayard v. Malcolm, 1 Johns. 467; I. C. R. R. Co. v. Schwartz, 13 Ill. App. 490; I. C. R. R. Co. v. Cobb, Christy & Co., 64 Ill. 134-37.
   Conger, J.

In January, 1865, the United States Government made a contract with Cobb, Christy & Co., for 500,000 bushels of corn and 100,000 bushels of oats to be delivered at Cairo, Illinois, for the use of the army.

During the winter and spring of 1864-5, one Elihu Fallis, who was acting as the agent of Cobb, Christy & Co., bought large quantities of corn for them at different points along the appellant’s road, to be shipped to Cairo, at which place the firm of Cobb, Blaisdell & Go. (Mr. Cobb being the principal partner in both firms), acted for Cobb, Christy & Co., in receiving this corn, paying freight therefor, and turning it over to the government. The cars of corn upon arriving at Cairo could, not be unloaded, either by the railroad, or Cobb, Blaisdell & Co., but, when the corn was accepted by the government, the cars were placed upon the government switch and unloaded by its own men. As the season advanced the corn arriving at Cairo began to be rejected by the government, on the ground that it was damaged and not merchantable, until the yards at Cairo and the side-tracks of the company, for quite a distance north of that point, became so filled with these cars of corn, that the company were unable to deliver, and about the first of February the company refused to receive freight faster than it could deliver at Cairo, and by the first of March had practically refused to receive at all. In the latter part of March, 1865, it is insisted by appellant that it had refused to ship any more corn to Cairo for Cobb, Christy & Co., because of the glut of cars at that point and north along its line, and that thereupon Fallis, as the agent of Cobb, Christy & Co., to induce appellant to furnish cars for the shipment of the corn, promised Mr. Arthur, the general superintendent of appellant’s road, that such cars should be promptly unloaded upon their arrival at Cairo, and upon these representations cars were furnished to Fallis, and the corn in question shipped. The corn, however, was not received, because greatly damaged, and this action is brought by appellees for the use of Cobb, Christy & Co., to recover upon the shipping receipts or hills of lading issued by the appellants to appellees. The declaration declares upon six shipping receipts, or bills of lading, exactly the same, except as to the date, the number of cars, weight, etc., and in three of them rate per 100 pounds is expressed. These instruments are as follows:

“Panola Station, April 5th, 1865.
Received from Miller & Smith, account E. Fallís, in apparent good, order by the Illinois Central Railroad Company, consigned to Cobb, Blaisdell & Co., Cairo, the following articles, as marked and described in the margin, subject to the conditions and regulations, as per published tariff of said company, and payment of the freight at the rate of 42' cents per 100 lbs., and such other expenses or charges as may have accrued upon said articles. It is especially agreed and understood that the & impany are not responsible for loss of goods of which the contents are unknown ; for leakage of any kinds of liquids; breakage of any kinds of glass: carboys of acids, or articles packed in glass, stoves or stove furniture, castings, machinery, carriages, furniture, musical instruments of any kind, packages of eggs, or for loss or damage on hay, hemp, cotton, or any articles, the hulk of which renders it necessary to be shipped in open cars, or for damage on perishable property of any kind, occasioned by delays from any cause, or change of weather, or for damage or loss by fire, or for loss or damage on the lake or rivers, unless it can be shown that such damage or loss occurred through the negligence or default of the agents of the company. And it is further especially understood, that for all loss and damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier or forwarder only, in whose custody the said packages may actually be at the time of the happening thereof ; it being understood that the said Illinois Central Railroad Company assumes no other responsibility for their safety or safe carriage than may be incurred on its own road. All packages subject to charge for cooperage, if necessary. Marks and Consignee. No. Description of Articles. Weight.”

It is insisted by appellants that this suit is barred by the statute of limitations, which was relied upon as a defense in the court below. The cause of action accrued in April, 1865, and the suit was begun on the 29th day of March, 1881. The statute of limitations in force at the time, and that governs these cases, is the statute of 1849, and the 17th section of that act is as follows: “ All actions founded upon any promissory note, simple contract in writing, bond, judgment or other evidence of indebtedness in writing, made, caused or entered into after the passage of this act, shall be commenced within sixteen years after the cause of action accrued and not thereafter.” The 18th section reads as follows: “ All actions, founded upon accounts, bills of exchange, orders, or upon promises not in writing, express or implied, made after the passage of this act, shall be commenced within five years next after the cause of action shall have accrued, and not thereafter.” Gross’ Statutes, 430. The question is, under which of these two sections of the statute do the alleged causes of actions in these cases fall % Appellees claim that they fall under the 17th section, and appellants insist that they fall under the 18th. If these instruments are “simple contracts in writing ” they are governed by the 17th section, and the action is not barred. In Bishop on Contracts, Sec. 57, it is said : “A written contract is one which, in all its terms, is in writing. In Chitty on Contracts, Vol. 1, page 93, it is said: “ The instrument must contain the words ‘of final agreement;’” while in the recent case of Plumb v. Campbell, N. E. Reporter, of Dec. 28, 1888, the Supreme Court of this State in passing upon this question, use the following language: “ If it be true that the agreement as set forth in writing is so indefinite as to necessitate resort to parol testimony to make it complete, the law is that in applying the statutes of limitations, it must be treated as an oral contract.”

It is clear, we think, from these authorities and others which might be cited, that a written instrument, to be a contract in writing, must set forth the undertakings of the parties to it so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated, to ascertain the extent and force of the contract.

Many cases have been cited by counsel upon the question of what are and what are not contracts in writing, but it would serve no good purpose to review them; for it is nota question of what a writing must contain to be a contract, but, does this instrument, by a fair interpretation of its language, contain-an express promise to forward and deliver the goods? If it does it is a written contract, and the present action is not barred. If not it is but a receipt for the goods, and an action would be barred in five years.

In examining this instrument to ascertain appellant’s undertaking, it is a little difficult to look alone to the natural import of the words used, unaided by the duties imposed and promises implied by law. From the language used we are unable to find any express promise on the part of appellants to forward the goods to Cairo.

It is true the acceptance of the goods, evidenced by these instruments, imposed a duty to carry them to their marked destination, and when the law imposes a duty it will raise an implied promise to perform that duty, and upon a failure to perform it, suit may be maintained for the nonperformance of the duty, or in assumpsit on the implied promise; hence, taking the facts stated in the receipts, together with the duties and promises the law implies from those facts, we have no difficulty in determining the rights and duties of the parties to the instrument, but from the lano-nage alone we are left in doubt. We can not concede to counsel that these instruments are strictly bills of lading. It is true they have been so called by both the Supreme Court and tin's court, but in all cases when so mentioned the question of limitation was not under consideration.

A bill of lading, as defined by Daniel on Negotiable Instruments, Sec. 1728, “ is a written acknowledgment by the master of a ship, or the representative of any common carrier, that he has received the goods therein described, for the voyage or journey stated, to be carried upon the terms, and delivered to the persons therein specified. It is at once a receipt fertile goods, which renders the carrier responsible as tlieir custodian, and an express written contract for their transportation and delivery.” Keeping in view this definition of a bill of lading, together with the rule above stated, that to be a written contract all its terms and undertakings must be in writing, we are unable to find in these shipping receipts any express promise on the part of appellant to forward the goods to the consignees at Cairo. Such a promise cannot be said to be in the first part of the instrument, for that is but a receipt of the goods, with the rate of freight and name of consignee.

The only sentence that can be claimed as importing or implying it is the last, which is as follows: “ And it is further especially understood, that for all loss and damage occurring in, the transit of said packages, the legal remedy shall be against the particular carrier or forwarder only, in whose custody the said packages may actually be at the time of the happening thereof, it being understood that the said Illinois Central Bailroad Company assumes no other responsibility for their safety or safe carriage than may be incurred on its own road.” It might be urged .with much force that this language is an attempt to limit appellant’s liability as a common carrier, and could serve no purpose unless the instrument was a contract to forward; still, we are inclined to think that these words in themselves do not import an express undertaking to forward and deliver to the consignee at Cairo. After giving full weight to the words of the instrument, with all the meaning they convey to the undertaking, it is believed that in seeking for an express undertaking on the part of appellant to forward, it can not he found in the instrument, but, to ascertain the undertaking of appellant, resort must be had to the duties imposed, and promises implied by law.

It is also contended by appellant that a right of action in the present case is barred by the judgment in the case of Cobb, Christy & Co. against appellant, reported in 88 Ill. 394. The record of that case, together with the opinion of the Supreme Court, was put in evidence in this, and there is no contention but that both suits are about the same corn, and the same alleged negligence on the part of appellant.

The tenth count of the declaration, in that case, charges that Cobb, Christy & Co., through the firm of Miller & Smith (the nominal plaintiff in this suit), delivered to appellant as a common carrier, at Panola, Illinois, certain corn, which is the same as described in the shipping receipts upon which this action is based, to be carried to Cairo and there delivered to Cobb,Blaisdell & Co., for Cobb, Christy & Co., and that appellant negligently failed to do so, whereby the corn was damaged and they were injured. To this declaration appellant filed a plea of not guilty, and the statute of limitations; and the verdict of the jury was “ not guilty.” The case was appealed to the Supreme Court, and is reported in 88 Illinois, 394.

It is the law that a suit may be maintained against a common carrier in the name of any one having either a general or special property in the goods, and that an action properly brought by any one having such a right of action, will be a bar to any subsequent suit against the carrier by another party, having either a general or special property in the- same goods, for the same damages. Redfield on Carriers, Sec. 321; Hutchinson on Carriers, Chap. XIII.

It would seem, therefore, to be clear, that if Cobb, Christy & Co., at the time of their suit against appellant had a general or special property in the corn, the judgment in that case would be final, and that the present plaintiffs would be barred from bringing an action for the same damages upon the shipping receipts given to them.

This court, in the case of I. C. R. R. Co. v. Schwartz, 13 Ill. App. 490, in passing upon this same question, and in speaking of the facts as shown by the record in that case, say:

“ The corn was sold by appellee, Schwartz, to Tallis, to be delivered on the cars, consigned to Cobb, Christy & Co., government contractors, at Cairo, and to be paid for by bills drawn -by Tallis on the consignees. The contract between Tallis and Cobb, Christy & Co., was that the corn was to be inspected by government inspector on its arrival at Cairo; and when it passed inspection they were to receive it and pay contract price. The corn did not pass the inspection; was never delivered to the consignees, nor did they ever make any payment upon it. Upon this evidence the central question presented to the jury at the trial of that ease was, had Cobb, Christy & Co. such an interest in the corn, either general or special, as to give them a right of action against the carrier for a failure to deliver it in a reasonable time ; and the jury, by their verdict, found they had not, upon which a judgment was rendered against them for costs, and the judgment was affirmed by the Supreme Court, 88th Ill. 394.” And it was held there was no bar.

It would also seem that in the case of Cobb, Christy & Co. v. Appellant, judging from the opinion in 88 Illinois, the evidence in that case showed the corn was to be the property of Cobb, Christy & Co., only upon the contingency that it should pass inspection when it reached Cairo. And the court in its original opinion held the jury were warranted in finding that they had no special property in the corn, and no right of action. The record in this case, however, presents an entirely different state of facts as existing at the time of the transaction, upon which all these suits are based.

It appears from the evidence in the present record that Tallis, as the agent of Cobb, Christy & Co., purchased for them the corn at various stations along the Central road, to be delivered on board appellant’s cars, in new gunnies. The corn was so delivered, and the vendors drew drafts on Cobb, Christy & Co., for the price, attaching to such drafts the shipping receipts received from the railroad company, and Mr. Cobb says he thinks these drafts were paid, at least they were all sent to the firm of Cobb, Christy & Co., and the shipping receipts were at the same time delivered to them, and these being the documentary evidence of the shipper’s property in the hands of the carrier, such delivery of the shipping receipts to Cobb, Christy & Co. was a good delivery of the corn to them, so as to vest the property in them. It was as effective in transferring the possession as the delivery of the keys of a warehouse is of the goods contained in it. M. C. R. R. Co. v. Phillips, 60 Ill. 198.

According to the testimony in this record, then, there is absolutely nothing shown in the original contracts made by Fallis, as agent of Cobb, Christy & Co., when he purchased the corn, about government inspection at Cairo or elsewhere ; it was an absolute purchase of the corn, whereby the vendor’s duties and responsibilities ceased when the corn was delivered on board the ears. After these contracts were made and the corn bought, there seems to have been some kind of an effort on the part of Fallis to get the contracts changed, so as to make them depend on government inspection at Cairo, but what the contract was or whether any at all was ever made does not appear. Counsel for appellant stated to the court on-the trial below that he desired to prove by Mr. Fallis that he did not buy this corn subject to government inspection, and that he afterward notified the vendors that he would accept it only by government inspection, but was not permitted by the court to ask the question.

In determining whether the judgment in the case of Cobb, Christy & Co., against appellant is a bar to the present action we must take the facts as we find them presented by the testimony before us, and if from the facts so appearing we can see that appellant has once answered for its supposed negligence in failing to forward this corn, in a proper action, to those having such property or interest in the corn as entitled them to sue for the same damages as are claimed now, the question is res adjudicata.

It is true, before the former judgment can be an estoppel, it must he on the merits of the controversy. But in the language of Freeman on Judgments, Sec. 260: “ To create such a judgment it is by no means essential that the controversy between plaintiff and defendant be determined ‘on the merits’ in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their law-suit disposed of according to their respective rights, if they had presented all their evidence and the court had properly understood the facts and correctly applied the law. But if either party fail to present all his proofs, or improperly manage his case, or afterward discover additional evidence in his behalf, or if the court find contrary to the evidence, or misapply the law, in all these cases the judgment, until corrected or vacated in some appropriate manner, is as conclusive upon the parties as though it had settled their controversy in accordance with the principles of abstract justice.”

We do not know what the testimony in the former case of Cobb, Christy & Co. against appellant was, except as we may judge from the opinion in 88 Illinois, but we are compelled to hold from the evidence in this record that Cobb, Christy & Co., at the time of such suit, had such an interest in the corn as entitled them to sue appellant for the damages occasioned by the alleged failure on the part of appellant to forward the corn; that in said suit appellant was charged with the same negligence as in this, and has answered to, and been vindicated from said charge of negligence. To permit a recovery in the present action would require appellant to be twice vexed for the same cause of action. This principle of res adjudicada embraces not only what was determined in the former case, but also extends to any other matter properly involved, and which might have been raised and determined in it.” Rogers v. Higgins et al., 57 Ill. 247.

In the former suit the negligence of appellant as the ground of action was distinctly charged in the declaration, and denied by the plea, and was therefore a matter properly involved, and which might have been raised and determined in it.

While the Supreme Court in their first opinion, in 88 Illinois, say the question of the ownership of the corn was the central one, still, in the opinion filed on the petition for rehearing, they also say that the other question for the jury to decide was, was there any such delay in the transportation of this grain, as, under the circumstances, would render appellant liable; and this question they say belongs to both phases of the case.

If, however, there is any question as to the correctness of the position already taken in this opinion, we think, upon the merits of the controversy, the law is with the appellant. We reach this conclusion from a careful consideration of the testimony, which is evidently the same as in the case in 88 Illinois; at least the conclusions reached and announced by the court upon this point are fully supported by the testimony in this record, and we can not give our views upon this question better than by quoting and adopting the language there used:

“ But, it is urged, the plaintiffs had such a special property in this grain as entitled them to maintain this action. Conceding this, the other question for the jury to decide is, was there any such delay in the transportation of this grain, as, under the circumstances, would render the defendants liable. And this question belongs to both phrases of the case. What facts had the jury before them on this point? Fallís and all other shippers of grain or other goods at that time knew there was a very large accumulation of cars on the track at Cairo, which, for some cause not chargeable to defendants, had not been unloaded, and caused an obstruction to the approach of other cars.
“Under these well known circumstances and this obstruction to regular transportation, the officers of the road refused to receive this corn, alleging as a reason this accumulation, and that neither the Government nor the plaintiffs would receive corn as fast as they brought it to Cairo, thus keeping their cars full on the track and causing this obstruction and glut. Under these circumstances Mr. Arthur, the general superintendent of this road, when applied to for transportation of the corn, refused to supply cars, for the reason they could not get rid of the corn when it reached Cairo. Fallis, to induce the superintendent to furnish cars, faithfully promised they should be promptly unloaded at Cairo. Belying on this promise the cars were furnished, but, when the corn arrived at Cairo, after some delay in reaching there, caused by accumulation of cars on the track at different stations, the plaintiffs positively refused to have anything to do with it. There was no one there on their behalf to receive it and unload the cars. How a jury of reasonable, commonsense men could, under these circumstances, and with these facts before them, find any other verdict than they did, is incomprehensible.”

The statement of Mr. Fallís, giving the reasons he urged upon Mr. Arthur to supply him with cars after he had refused to do so, on account of the condition of the road being blocked with cars, is as follows, and is the identical testimony given in the former case in a deposition, and by agreement incorporated into this record. He says:

“ The most of the corn in this suit was loaded the first week in April or the last of March; some of it in February; the particular arrangement was made with Mr. Arthur for these cars; he said Cobb, Blaisdell & Co. had been having a large share of cars; I told him this grain had to be shipped by April 10th; he said they had had their proportion; I told him that the shippers along the line would be great losers—that they would be broken up ; he said if that was so he would send cars, and he did send them; I told him the grain would be unloaded promptly, and upon that condition he furnished cars; the cars were furnished up to April 8th or 10th.”

But it is insisted that these representations and promises on the part of Fallis are not proper to be considered, because they modify the written contract of affreightment, by adding a condition not named in it, and it seems to be so held in the Schwartz case.

If we are correct in holding these shipping receipts as not being written contracts, but only receipts for the goods, the objection has no force; but if it be conceded they are contracts they require no more than the law would imply, that is, that the corn should be forwarded in a reasonable time—and we are at a loss to perceive how this testimony adds to, or in any way changes or modifies the contract of affreightment.

The contract requires appellant to forward the corn in a reasonable time. What is a reasonable time for the performance of that duty is determined by the circumstances attending and surrounding the transaction.

If the shipper promises the carrier to do something which will enable the latter to make the time of transportation shorter than it otherwise would be, and fails to perform it, why can not such fact be shown by the carrier in excuse for the delay, and that, too, without changing or modifying the contract of affreightment? The carrier offers the evidence to show that the contract has been executed according to its terms within a reasonable time.

For the reason above given we are of opinion that appellees have no right to recover in this action, and the judgment of the Circuit Court will be reversed.

Judgment reversed.

Wall, P. J., took no part in the decision of this case.

The clerk will recite in the final order the following as the finding of facts by this court:

The court finds that there was no such delay by the appellant in the transportation of the grain in this suit mentioned, as would render it liable for damages in the present action.

The court also finds that by the evidence appearing in this record, Cobb, Christy & Co., at the time of the suit by them against appellant, reported on page 394 of 88 Illinois, had such an interest in the corn then sued for, as entitled them to maintain a suit for any wrongful delay in its transportation. That the corn mentioned in that suit and in this is the same, and the same alleged delay in transportation is relied upon in both suits, and that such former suit was a bar to the present suit.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    Herschel O’Hair v. The People.

      Clerics—Witnesses—Subpoenas—Vacation—Grand Jury.

    The clerk of the Circuit Court may, in vacation, at the request of the State’s attorney, issue subpoenas for witnesses to appear before the grand jury at the ensuing term of court.
    [Opinion filed November 27, 1889]
    Appeal from the Circuit Court of Edgar County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Henry S. Tanner and Henry Tan Sellar, for appellant.
    Messrs. George Hunt, Attorney General, and Frank P. Hardy, State’s Attorney, for appellee.
   Conger, J.

The question presented by this record is as to the power of the clerk of the Circuit Court, in vacation, upon request of the State’s attorney, to issue subpoenas for witnesses to appear before the grand jury at the ensuing term of the court.

Appellant was duly served with such a subpoena a few days before the Circuit Court convened, which he disregarded and went out of the State, where he remained until after the grand jury was discharged, when he returned to this State. The State’s attorney procured from the court an attachment, upon which appellant was brought into court, and upon the foregoing facts appearing, was fined by the court $25 and costs, from which decision of the court he appeals. No statute directly authorizes the issuing of subpoenas in such cases, nor has our attention been called to any adjudicated cases where this precise question was involved.

It is insisted, by counsel for appellant that no power exists in the State’s attorney to cause subpoenas to be issued prior to the organization of the grand jury; that there is no cause or action in existence authorizing the issuing of subpoenas until the grand jury has actually begun the investigation of an alleged offense. This, in our judgment, is a misapprehension of the relative powers and duties of the State’s attorney and the grand jury; for while these have been largely regulated by statute, still we must resort to the common law for the general principles governing them in cases where the statute is silent. At common law it was the duty of the public prosecutor to prepare indictments and submit them together with the witnesses to the grand jury when organized. The prosecution originated in the mind of the prosecutor, and the grand jury were called upon to pass upon the bill and evidence thus submitted, and either find it to be a true bill or ignore it. In other words, the public prosecutor, whose duty it was to see that all supposed violations of law were punished, was made the instrument of preparing and bringing before the grand jury criminal charges, that they might determine whether an indictment should be found or not. Where the supposed offender had been committed by an examining magistrate to answer to the grand jury, the prosecuting witnesses were recognized to appear and no further steps were necessary to have them present; but when there had been no preliminary hearing, and the prosecutor desired to present a bill against one whom he deemed an offender, it was his duty, prior to the organization of the grand jury, to have a bill prepared and engrossed, and have the witnesses present to support it.

Chitty, in Vol. 1, p. 316, of his Criminal Law,says: “ The grand jury being thus sworn, charged and empowered to execute the duties of their office, the bill must be preferred before them. Previous to this, the prosecutor must cause it to be properly prepared and engrossed on parchment.”

In Wheaton’s Criminal Pleading and Practice, Sec. 354, it is said: “ It is essential to the validity of an indictment that it should be submitted to the grand jury by the prosecuting officer of the State.” In Sec. 338 of the same work, the author says that the view as accepted in the United States Court, and in most of the States is : “ That the grand jurymay act upon and present such offenses as are of public notoriety and within their own knowledge, such as nuisances, seditions, etc., or such as are given them in charge by the court, or by the prosecuting attorney, but in no other cases without a previous examination of the accused before a magistrate.” While the power of the grand jury is not thus limited by the practice and law of this State, and they doubtless may originate a bill of their own motion, this in no way militates against the power of the prosecuting attorney to proceed as at common law by preparing a bill prior to the meeting of the grand jury, and having his witnesses subpoenaed and present at the meeting of court. While the custom in our courts is, perhaps, general for the prosecuting attorney to prepare only such bills as are directed by the grand jury, still Sec. 17 of Chap. 78, we think, clearly recognizes the practice we have alluded to, i. e., that the bill should be prepared by, and upon the sole responsibility of the prosecutor, and submitted to the grand jury for their action thereon.

In this section, in speaking of the duties of the foreman, it is said : and whose duty it shall be, when the grand jury, or any twelve of them, find a bill of indictment to be supported by good and sufficient evidence, to indorse thereon, A true bill; ’ when they do not- find a bill to be supported by sufficient evidence, to indorse thereon, ‘ Not a true bill.’ ”

This common law rule of casting upon the public prosecutor the duty of preparing and bringing before the grand jury, bills for offenses against the criminal law together with the evidence to support them, is not only recognized but enforced by Sec. 5 of Chap. 14 of the Revised Statutes, which provides that the duty of the State’s attorney shall be To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in his county, in which the people of the State or county may be concerned.” It is thus by statute not only made his duty to prosecute all indictments when found, but he is.to commence them. As we understand this language, there is a criminal charge in esse, when the prosecuting attorney prepares a bill, sufficient at least to authorize him to have subpoenas issued for the witnesses to support it, whether before or after the grand jury is impaneled. And the universal practice having obtained in the courts of this State, so far as we are advised, of informally presenting a charge before the grand jury, without the formal preparation and presentation of a bill of indictment, we think the State’s attorney, when he has reason to believe that an offense has been committed, may have subpoenas issued for the witnesses whose evidence he expects to present to the grand jury in support of the charge prior to the meeting of court.

In addition to the foregoing, it may be said that the grand jury has no independent existence, but is a part of and an adjunct to the court; that sub] cenas for a witness directs him to appear, not before the grand jury, but before the court to give evidence before the grand jury, and by common law such witnesses were required to be sworn in open court and then sent before the grand jury to be examined. Bishop on Crim. Prac., Vol. 1, Sec. 868.

In the case of U. S. v. Moore, Wall. C. Ct. Rep. 28, it was held that a person charged with a crime may have compulsory process to compel the attendance of witnesses, even before indictment found, and it would seem that the people should have the same privilege. See also King v. King, 8 T. B. 585, where it is said: “A subpoena may be issued from the Grown Office requiring a witness to attend at the assizes in the country to give evidence in support of an intended prosecution for a felony; and this court will grant an attachment against him for not attending in obedience to the subpoena.”

We find in appellant’s brief a reference to Chitty’s Crim. Law, Vol. 1, page 821, but we fail to see that it throws any light upon the question as to the time when a subpoena may issue.

Besides the foregoing reasons we think there are others of public policy tending to sustain the views herein expressed. It is the duty of the State’s attorney to keep himself informed as to violations of the criminal law. Usually he has a general knowledge of most of the offenses that the grand jury ought to investigate and the witnesses by whom he expects to sustain the charge. In such cases what good reason can be given for waiting until the grand jury is impaneled before causing such witnesses to be subpoenaed It frequently happens that the grand jury after their organization must remain idle at a heavy expense to the public, waiting for these witnesses to be sent for and brought in, whereas, if attending court, as they would be under the view we take of the law, the sittings of the grand jury would be materially shortened.

Again, if all the people’s witnesses known to the State’s attorney were served with subpoenas prior to the term of court, it could usually be performed by the sheriff with his ordinary force of deputies; but if done after the term begins it would require a large force of special bailiffs, thus needlessly enhancing the cost. If the law were to be held in accordance with the view of appellant, it would afford witnesses, who were for any reason anxious to avoid testifying before the grand jury and who had reason to suppose they would be compelled to do so, an opportunity of going beyond the jurisdiction of the court, and so remain during the few days that the grand jury might be in session, and thus entirely defeat the course of justice, not only for one but for as many terms of court as they might desire; for it must be remembered, that according to the law, as insisted upon by appellant, a subpoena for a witness to appear before the grand jury could only .be issued during the sitting of such grand jury and returnable to the same session. We apprehend no evil results will flow from the practice of having the people’s witnesses subpoenaed prior to the beginning of a term of court, but are inclined to think it will tend to aid in the enforcement of the law.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed/.


author: Wall, J.

text:
    Samuel H. Crum v. Charles A. Higold, Administrator, etc.

      Master and Servant—Physician's Services—Open Account—Limitations —Payment.

    The mere fact of a payment by a debtor owing an account of a sum not more than sufficient to cover items of recent origin, without proof of knowledge as to numerous items of older date, long barred by the statute, is not sufficient, per se, to relieve such barred items therefrom.
    [Opinion filed November 27, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Messrs. M. T. Layman and G. W. Smith, for appellant.
    Mr. Edward L. McDonald, for appellee.
   Wall, J.

This suit was brought by Higold, administrator of Craig, deceased, to recover a balance alleged to be due from Crum for medical services rendered him by the deceased Craig. The plaintiff recovered and the record is brought here by the appeal of the defendant.

We deem it necessary to consider only the defense of the statute of limitations, which was interposed by the defendant. It appeared that the account sued upon consisted of a large number of small items for attendance and medicines running through a period of twelve years, the major part of it having accrued more than five years before suit brought. There appears on the books kept by deceased, which were admitted in evidence, a credit of $5 more than five years before suit brought, and several similar payments made since then, and as to these later payments it may he remarked that, they were all made at times when, as shown by the books, there was a greater amount due considering only the items accruing within the five years.

At the instance of the plaintiff the court instructed the jury that if there was a running account between the deceased and the defendant extending through ten or twelve years before suit brought, and if payments were made by defendant for which he was credited by the deceased and the last payment was made within five years, then such payment would, in law, revive the whole account; and by a further instruction the court advised the jury that if defendant, after the account became barred, and within five years, made a payment on the account, then the account was thereby revived. The last instruction was misleading because it assumed there was a payment on account after it became barred, of which there was no proof. It was not shown that the payments made within the five years were made upon the old items nor that there was in a single instance any knowledge or recognition of an indebtedness greater than would be liquidated by the payment then made.

The first instruction seems to ignore the necessity of proof that the payment was intended to be made on the barred items or on a recognized general account but assumes that in the case stated mere payment made within five years would, as a matter of law, revive the whole account. While it is well settled that a part payment of a debt will take it out of the statute, yet it must be certain that the payment is made only as a part of a larger debt, for in the absence of proof it will not be deemed an acknowledgment of any more debt than it pays. Parsons on Contracts, 6th Ed., Vol. 3, 74-75; Angell on Limitations, Chap. 22.

Where a debtor owes several debts to his creditor and makes a payment it must appear affirmatively that he intended to pay upon the one barred before the payment can be made effective to remove the bar, and, as was said in Lawry v. Gear, 32 Ill. 386, it must be remembered that the new promise can be implied only where the party designedly makes payment upon the particular debt. There must be an actual, affirmative intention to make a payment on such debt before the new promise can be inferred. The rule is plain enough and easy of application when the debts are several and distinct, as in the case of several promissory notes or other liabilities growing out of independent transactions. The case of a running account, such as here, consisting of a great number of similar charges, seems to present more difficulty.

In Dyer v. Walker, 54 Wis. 22, the court said that as the; testimony was clear that the payment was made upon the account as a whole and not on any one or number of items, it would operate as an acknowledgment of the whole and remove the bar. In Peck v. N. Y., etc., Steamship Co., 5 Bosw. 227, it was said : “The principle on which the effect of an indefinite payment on a general open account depends, is acknowledgment. A specific payment directly appropriated to a specific item in such an account leaves the statute to its operation as to the rest. But when the debtor knows that there exists against hipa a general account of items and designedly pays or furnishes something to lessen a demand on such general account without discrimination and at that time does not deny his liability for the previous items, the law reaches an implication of his acknowledgment of the whole account.”

In Beltzhoover v. Yowell, 11 Gill & Johnson, 216, it was said: “Upon no principle of reason or justice can such an inference (of acknowledgment) be deduced from the simple fact of a payment made on account of a running account of long standing of which the debtor has never been furnished with a copy or been otherwise put in possession of a knowledge of the entries which it contained. * * * To revive the items of an open account which are barred by the statute, by a payment in part, or part payment on account, which are the same thing, it is necessary that it should appear that the payment was made on those items, or that the debtor, having full knowledge of the charges in the account to which the statute was a bar, made the payment recognizing its validity. The payment, too, must be applied by the debtor, not by the creditor. For although the creditor, on the omission of the debtor to do so, may apply the payment in part satisfaction of the debt or that part of it which is barred by the statute, yet such payment will not relieve the balance of the debt from the operation of the statutes. Mills v. Fowkes, 35 Eng. C. L. R. 175.”

In Carroll v. Forsyth, 69 Ill. 133,it was said: “Where one has an account against another, the whole or a part of which is barred by the statute of limitations, he can not take it al 1 out by merely entering a credit. The credit to have that effect must be authorized and proved to have been intended as a payment on the account.”

We are constrained to hold that the first instruction was erroneous in omitting as an essential element that the payment must be made under such circumstances as to show a recognition of the whole account—a purpose to pay on the stale items. The mere fact of a payment not more than sufficient to cover items of recent origin without proof of knowledge as to the numerous items of older date, now long barred by the statute, ought not to be sufficient perse to relieve such barred items from the statute. The gross injustice which might thereby be accomplished, is apparent. Nor can the barred items be saved on the ground that the present is a case of mutual accounts. The rule that items within the period of limitation draw after them items beyond that period, is strictly confined to mutual accounts between two parties showing a reciprocity of dealing. There must be a mutual or, as sometimes expressed, an alternate course of dealing, giving rise to cross-demands upon which the parties might respectively maintain actions.

Where payments are made on account by one party for which credit is given by the other, it is an account without reciprocity and only on one side. The mere payment credited by the plaintiff does not bring the case within the exception of mutual accounts. Angell on Limitations, Secs. 148-9; Wait’s Actions and Defenses, Vol. 7, 266-7.

We are of opinion that upon the evidence, as it appears in the present record, the defense of limitations was well made as to a substantial portion of the account.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Indianapolis & St. Louis Railway Company v. The People, for use, etc.

      Railroads—Obstruction of Highways—Pleading—Statutory Penalties— Liability for—Secs. 63-4, Chap. 114, R. S.

    1. In an action under Secs. 63-4, Chap. 114, R. S., providing penalties for the obstruction of highways by railroad corporations in leaving locomotives and car&\ at intersections thereof, it is unnecessary to allege that the corporation in question is the owner of the railroad.
    2. Such corporation is liable, under Sec. 64, for the penalty provided therein for each offense alleged and proved in the action, the same as in the case of an engineer or conductor.
    [Opinion filed November 27, 1889.]
    Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. John T. Dye and Amos Miller, for the appellant.
    Messrs. Lane & Cooper, for appellee.
   Wall, J.

It is provided by Secs. 63 and 64 of Chap. 114, R. S., as follows:

. “ Sec. 63. No railroad corporation shall obstruct any public highway by stopping any train upon, or leaving any car or locomotive engine standing on said track, where the same intersects or crosses such public highway, except for the purpose of receiving and discharging passengers, or to receive the necessary fuel and water, and in no case to exceed ten minutes for each train, car, locomotive or engine.”
“Sec. 64. Every engineer or conductor violating the provisions of the preceding section shall for each offense forfeit the sum of not less than $10 nor more than $100, to he recovered in an action of debt in the name of the people of the State of Illinois, for the use of any person who may sue for the same, and the corporation on whose road the offense is committed shall be liable for the like sum.”

The present action was brought against appellant to recover for forty-six alleged violations of the section first quoted. The Circuit Court overruled a demurrer to the declaration and appellant declining to make further answer, proceeded to hear evidence, and finding the appellant guilty on twenty-six counts, rendered judgments for ten dollars on each of said counts.

Two points are made by the brief of the appellant: 1st, that the declaration is bad in not averring that appellant was the owner of the railroad; 2d, that appellant is liable, if at all, for only one penalty and not for each offense committed.

As to the first objection, the averment is that the defendant, then operating a certain railroad” (the one in question) “did propel and drive a locomotive engine and cars on the said railroad and did obstruct a certain highway named, for a greater space of time than ten minutes,” etc., each count containing a similar averment. It is urged that by this allegation it does not sufficiently appear that the defendant is the corporation on whose road the offense was committed.”

The section first quoted declares that no railroad corporation shall obstruct any public highway, etc., etc., and the following section fixes the penalty. Manifestly the object of the latter section is to provide a punishment for the offense described in the former and to lay that punishment upon those committing the offense, the principal as well as the agent.

To prove that a certain corporation was operating the road when the offense was committed would be ample evidence of its liability.

Reading the two sections together we are of opinion that it is not necessary to aver or prove that the defendant owned the road, but that the fact of defendant operating the road makes defendant, for the purpose of this enactment, “ the corporation on whose road the offense is committed.” Such a corporation might well -peak of the road as its road, and the road might well be referred to as the road of that corporation. The language here used is to be taken in its general sense and to have reference to the expression in the first section that “no railroad corporation shall obstruct,” etc.

In the case of Ill. C. R. R. Co. v. Kanouse, 39 Ill. 272, it was held that a lessee corporation was subject to the provision of the statute requiring railroads to fence their lines, and it was said of such lessees that pro hacvice they must be deemed the owners. The statute then under consideration provided : That every railroad corporation whose line of road or any part thereof is open for use shall * * * and every railroad company formed or to be formed but whose lines are not now open for use,” etc. Gross’ Stat., 539. The language here employed is, as to the point in question, quite identical with that of the section now involved. In view of the plain object of the legislation and of the terms used we think the objection to the declaration was properly overruled. Linfield v. Old Colony R. R. Co., 10 Cush. 562.

The second point turns upon the construction of the last clause of the second section, which declares that the principal “ shall be liable for the like sum.” These words are in the same sentence with and clearly refer to the provision that “ for each offense (the engineer or conductor) shall forfeit the sum of not less than $10 nor more than $100.” “ The like sum ” is an equivalent expression for what precedes, set forth in detail, and refers to the matter for which the liability' is imposed, viz., “for each offense;” which liability is also imposed upon the corporation on whose road the offense is committed.

It was intended to punish the principal equally with the agent, and it would be a narrow and unfair construction to hold under this expression that whereas the agent should be liable for each offense, the principal is liable but for one or rather for only one penalty for all offenses. The natural meaning and import is to hold the agent and the corporation each liable to the same punishment for every violation of the act.

In the ease of T. W. & W. Ry. Co. v. The People, etc., 81 Ill. 141, the railroad company was prosecuted for twenty-five alleged violations of the act under consideration. There it was contended these words, “the like sum,” must refer to a sum certain actually adjudged against the offending servant, and that a conviction of the servant was a necessary prerequisite to a conviction of the company; but this view was not accepted by the court, and it was said that it was the intention to subject the conductor, engineer and corporation indifferently to the fine prescribed for violating the act, and that the corporation should be liable for the like sum for which the engineer or the conductor was liable. That case, while not deciding the precise point at issue, is in harmony with the position of the appellee in the present case.

if there were but a single offense, the servant and the company would of course be liable; but it would hardly be supposed that a conviction for such offense could be pleaded in bar of a prosecution for a subsequent offense or that a conviction for the second offense would preclude liability for a third. Yet, according to the construction contended for, if several offenses occurred before suit brought, even though happening so close together that separate suits would be impossible, but a single penalty could be inflicted upon the company, though the servant would be liable for as many penalties as there were offenses. Such a construction is forced and unnatural, would lead to results not intended by the lawmaker, and, in many instances, would defeat the object of the law.

The judgment will be affirmed.

Judgment affirmed.


text:
    Patience E. Ward v. John Wood et al.

      Administration—Debts—Bill to Subject Assets of Deceased Debtor to Payment of—Assets—Legal in Part—Demurrer.

      Upon the filing of a bill to subject certain assets of a deceased person to the payment of debts, it clearly appearing that a portion thereof could have been reached by legal remedies, and there being no allegation as to the value of such portion, it will be presumed that they were sufficient to pay the debts in question.
    [Opinion filed December 3, 1889.]
    Appeal from the Circuit Court of Adams County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. Berry & Epler, for appellant.
    Mr. William McFadon, for appellees.
   Wall, J.

This was a bill in chancery by a creditor of a deceased debtor to subject certain assets of the debtor to the payment of the indebtedness held by the complainant, as well as that due other creditors. A demurrer was sustained to the bill and there was final judgment dismissing the bill and for costs, accordingly. The complainant brings the record here by appeal and assigns error upon said ruling.

The assets referred to in the bill consisted mainly of the unsold and unaccounted for proceeds of a tract of thirty-three and one-fourth acres of land conveyed by the debtor to the city of Quincy, under an act of the General Assembly, for cemetery purposes. It was the theory of the bill that by the facts therein stated the city became the trustee of the debtor as to three-fourths of the property so conveyed, and that for the reasons set forth the aid of a court of equity was indispensable, and that the complainant was entitled to relief in that forum.

Assuming that as to such properly there was a condition of things not within the power of the County Court adequately to manage, and calling in an especial manner for, the peculiar modes of relief employed in chancery, and that the omission to probate the claim should not, under the circumstances prejudice the complainant as to this fund, there is another aspect of the case requiring consideration.

The bill further averred (we quote from the statement in appellant’s brief) that, “ On January 28, 1857, an act was passed by the Illinois Legislature amending the act of January 16, 1847, authorizing John Wood to lay out and add to Woodland Cemetery four and sixty-five one-hundreths acres, lying south of it, and which was to be covered by the provisions of the original act. That John Wood inclosed the east part of said four and sixty-five one-hundreths acres as a part of Woodland Cemetery, but as complainant is informed and believes, he never conveyed it to the city of Quincy, nor to any one else, save about one-tenth of an acre which he deeded to Joel Price in 1854.”

The bill further states, that “said four and sixty-five one-hundredths acres extend to Front street, but the western limit of the inclosure is a fence; that John Wood platted block 15 in said addition into lots, which addition also includes about half of block 16; that lots in said blocks were sold by John Wood during his life, and afterward by the city, and their proceeds disposed of as that of other lots in the cemetery as aforesaid; that a part of said addition has not been platted into lots, which, together with many lots in block 15, and the south half of block 16, remain unsold; that the part of said four and sixty-five one-hundreths acres lying west of said fence, the western boundary of said addition, except the piece sold to Price, remains unsold, and part of the assets of the estate of said John Wood, deceased, not accounted for by said administratrix, as do also the unsold portions of said addition platted into lots or not so platted, as do also three-fourths of the proceeds of the unsold portions of said thirty-three and one-fourth acres.”

It is not averred what was the value of the residuum of said tract of four and sixtj'-five one-hundredths acres, but clearly it still stands in the name of the debtor, and is a legal, as contradistinguished from an equitable estate. Ho reason appears why the complainant could not reach this property, and as the bill fails to disclose its value, it may fairly be presumed it was sufficient to pay the debt of complainant and indeed, all the debts of the deceased. As to this there was ample power in the County Court. The mere fact that the property was not inventoried and that the administratrix was discharged before completely performing her official duty, would not prevent complainant from availing of her legal remedy. As it is to be presumed in the absence of an allegation to the contrary, that the property was sufficient to cover the claim, and that by means thereof payment might have been enforced in the County Court, it follows there was an adequate remedy at law, and therefore no occasion to invoke the interposition of chancery. Blanchard v. Williamson, 70 Ill. 647. It is not averred that as to the thirty-three and one-fourth acres there was any fraud, hut merely that by reason of the facts there was a trust estate—an equitable interest—to which complainant desired to resort. According to well settled rules, this could be done only in default of legal assets.

The decree dismissing the bill will be affirmed.

Decree affirmed.


text:
    Lake Erie & Western Railroad Company v. John S. Scott.

      Railroads—Injury to Private Property through the Construction of— Damages.

    1. An owner of real estate located upon a highway, is entitled to damages when the same is rendered less safe with reference to communication with his property, through the building and operation of a railroad contiguous thereto.
    2. There is no legal distinction between damages suffered in such manner and where the injury arises from the obstruction of the road itself.
    8. In such cases certain elements of damage arise, so far as such property owner is concerned, which are not fully shared by the general public.
    [Opinion filed December 13, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.

      Messrs. Stevens & Horton and James S. Ewing, for appellant.
    There can be no recovery where the elements of damage are speculative and imaginary, such as the danger of having horses frightened, or offensive to a sensitive taste, such as the unsightliness of an object, lawful in itself. McReynolds v. B. & O. R. R., 106 Ill. 152; P. & P. U. Ry. v. P. & F. Ry., 105 Ill. 110; Stone v. P. & N. W. R. R., 68 Ill. 394; Cooper v. Randall, 53 Ill. 24; In re Penny, 7 El. & Bl. 660; Favor v. Boston R. R., 114 Mass. 350; Cooley on Torts, p. 602.
    There can be no recovery under our present constitution where the injury suffered is of the same kind as that suffered by the public. Chicago v. Union Building Ass’n, 102 Ill. 379; East St. Louis v. O’Flynn, 119 Ill. 200; McDonald v. English, 85 Ill. 232; Guest v. Reynolds, 68 Ill. 478; I. B. & W. R. R. v. Eberle, 110 Ind. 542; Roebette v. C., M. & St. P. R. R., 17 A. & E. R. R. Cas. 192; Rude v. City of St. Louis, 6 S. W. Rep. 257.
    There can be no recovery, unless, under the facts, the damage complained of would give rise to a right of action at common law. Rigney v. Chicago, 102 Ill. 64; Chicago v. Un. Building Ass’n, 102 Ill. 379.
    But a railroad operated by authority of law and for a lawful purpose is not a nuisance. C. & E. I. R. R. v. Loeb, 118 Ill. 203; I. C. R. R. v. Garbill, 50 Ill. 241.
    And the acts complained of, viz., mental disquietude and inconveniences in mere matters of taste are not actionable. Cooper v. Randall, 53 Ill. 24; Guest v. Reynolds, 68 Ill. 478; Cooley on Torts, p. 598-602; Owen v. Henman, 1 Watts & S. 548; Sparhawk v. U. P. R. Co., 54 Pa. St. 401.
    Nor is operating the railroad an actionable offense merely because there is a liability to frighten teams. Favor v. Boston R. R., 114 Mass. 350; P. W. & B. R. R. v. Stinger, 78 Pa. St. 219; Macomber v. Nichols, 34 Mich. 21; Stone v. F. P. & N. R. R., 68 Ill. 394; Hahn v. Southern Railway, 51 Cal. 605; Cooley on Torts, p. 617.
    Hence, under the facts in this case, if plaintiff is damaged at all, it is damnum absque injuria. Penn. R. R. Co. v. Lippincott, 9 At. Rep. 871; Penn. R. R. Co. v. Marchant, 13 At. Rep. 690; Trinity & S. Ry. v. Meadows, 11 S. W. Rep. 145; Beseman v. Penn. R. R. Co., 13 At. Rep. 164; Renard v. B. & W. Ry. Co., 23 N. W. Rep. 914; Florida Southern Ry. Co. v. Brown, 1 So. Rep. 512; Rude v. City of St. Louis, 6 So. W. Rep. 257; In re Penny, 7 El. & Bl. 660; Caledonian Ry. Co. v. Ogilvy, 2 Macg. 229; Ricket v. Metropolitan Ry. Co., L. R., 2 H. L. 175.
    Messrs. R. B. Williams and I. N. Phillips, for appellee.
   Conger, J.

Appellee owns a farm of about 216 acres, bounded on the west by a public highway sixty-six feet wide, running from the city of Bloomington in a northerly direction, known as the White Oak Grove Road. The whole of the farm lies east of this highway, except at one point where a corner of one of the tracts composing the farm crosses the highway, making a small triangle containing from three to six one-hundredths of an acre on the west side of such highway.

Appellant’s railroad was located and constructed in the middle of its right of way, which was one hundred feet wide, lying west of and adjoining the White Oak Grove Road. The railroad was separated from the farm by the highway, except where it touched the little triangular piece lying west of .the highway.

In constructing the railroad at this point a cut was made and a portion of the earth on this triangle was dug away and removed. Appellant took no steps to have this land condemned; when the sub-contractor was grading at this point, appellee notified him not to go upon this triangle as it was his property, and the right of way had not been sedured over it. In explaining their action appellant’s counsel say: “Upon investigation it appeared so small and trifling, the sub-contractor was advised to go ahead with his work, and that the railroad company would settle with appellee.” Ro settlement, however, was made, and appellee instituted the present suit, jj

The amended declaration upon which the case was tried was in the nature of an action on the case, in which damages were claimed for the trespass and excavation upon the triangular piece lying west of the highwajq and for damages to all the land lying upon the east side of the highway. In the declaration it is averred that by reason of defendant entering upon and digging up and carrying away the soil and earth from plaintiff’s land, and by reason of defendant constructing its said railroad as above stated, so near to said highway and so near plaintiff’s land, and continuing to operate the same, defendant thereby became liable to pay to plaintiff all damages that the construction and operation of its said railroad will cause or has caused, to the residue of said body of land, not in fact entered upon and despoiled. It is then further averred, the construction and operation of said railroad, in the manner and way it is constructed and operated, will and does greatly injure the rest of said body of land, not entered upon and despoiled in this: that it makes, and will through all coming time while such lands are used for farming purposes, the approach to and from the dwelling house and the other buildings on the west side of said lands over said highway, unsafe and dangerous to travel on and over in carriages or other vehicles drawn by horses or other animals; that the deep cut and high embankment immediately in front of and near plaintiff’s land, makes the appearance of such farm unsightly, and otherwise injuriously affects it; and that the construction and operation of said railroad, as aforesaid, renders said farm less convenient and comfortable as a place of residence, and also renders such lands less safe and convenient for farming purposes, particularly in handling stock upon it. It is then averred that “ by reason of the wrongful acts and doings of defendant, as aforesaid, and the injuries done to plaintiff’s lands, as aforesaid, the salable value of said land is thereby greatly decreased.”

Pleas were filed by appellant, a trial had before a jury, who returned a verdict for appellee in the sum of $500, upon which judgment was rendered. There can be no question that appellee was entitled to recover damages occasioned by the entering upon and removing or distributing the soil upon the premises west of the highway, but it is strenuously insisted that for such damages to the remainder of the farm as are claimed in the declaration, there can be no recovery.

The evidence was conflicting. Appellee’s witnesses testified that the construction and operation of the road would damage appellee’s farm to the extent of §6 to §10 per acre, decrease its rental and salable value; while the witnesses for appellant think there would be no substantial damage. Under these circumstances the jury were warranted in their verdict, if the law as applicable to the case was properly applied. The instructions given appellee upon this subject were as follows:

“2. The court instructs the jury on behalf, of plaintiff that the true measure of compensation, where no land is taken for the right of way for a railroad upon which to construct a road bed and track is the difference between what the whole property would have sold for, unaffected by the railroad, and what it would sell for as affected by it.
“3. The constitution of this State declares: ‘Private property shall not be taken or damaged for public use without just compensation,’ and the jury are instructed it will be presumed the framers of that instrument used the word ‘damaged’in that connection in its ordinary and popular sense, which is hurt, injury or loss, and that ‘the damage contemplated by the constitution’ in cases where no land is actually taken, ‘ must be an actual diminution of present value or of price, caused by constructing and operating the road, or a physical injury to property that renders it less valuable in the market if offered for sale.’
“4. If the jury believe from the evidence that plaintiff is the owner in fee simple of the land described in the declaration, and that the defendant railroad company in constructing its road bed and track entered upon any portion of plaintiff’s said land and dug up and carried away the soil, and that such acts were a physical injury to such lands or any part thereof, and if . the jury further believe from the evidence the construction of defendant’s road bed and track along, near and adjacent to plaintiff’s land, and its contemplated maintenance and operation, if the jury believe from the evidence they are so constructed, and that defendant intends to maintain and operate the same, are an actual damage to his lands and do in fact render the same less valuable in the market if offered for sale, then the law is for plaintiff, and the jury should find for him; and the jury are instructed as a matter of law plaintiff is entitled to recover for any depreciation—if the jury believe from the evidence there has been any depreciation—in the market value of plaintiff’s lands not actually entered upon by reason of the construction, maintenance and operation by defendant of its railroad as constructed, and also for any physical injuries done to that portion of plaintiff’s land upon which defendant did actually enter—if the jury believe from the evidence defendant did enter upon any portion of plaintiff’s lands described in the declaration and did cause any physical injuries to the same.
5. The jury are further instructed on behalf of the plaintiff that in determining whether plaintiff’s lands are lessened in value by reason of the construction and the proposed operation of the railroad, then the jury may consider the injury to plaintiff’s lands, if any is proved, arising from the inconveniences actually brought about and occasioned by the construction of defendant’s railroad, although such damage might not be susceptible of definite ascertainment; and may also consider such incidental injury as the proof may show might or would result from the perpetual use of the track for moving trains, or from the inconveniences in using said lands for farming purposes and in handling stock upon it, if the proof shows such railroads would occasion any such inconveniences; and they may consider generally such damage as the evidence may show, if any are reasonably probable to ensue from the construction and operation of defendant’s said railroad.”

Witnesses for appellee seem to base their idea of the damages upon the supposition that the construction and operation of the road so near the highway has rendered it dangerous and unsafe to travel upon, made the egress and ingress from the farm onto the highway with teams and stock more dangerous, rendering the farm less safe and convenient, and thereby reduced the value of appellee’s farm.

Appellant insists that in all this evidence, “ appellee has shown no injury or damages not suffered in common with the general public, for which the law affords him no redress.”

We can not assent to this view. The damages spoken of by the witnesses in reference to making the highway more dangerous are, to some extent, shared with appellee by the public, and in so far as they are common to both no right of action exists. But there are elements of damage affecting the value of appellee’s farm which do not in any way affect the public. A highway beside a farm may and generally does give it an increased value, depending to some extent upon the location of the buildings, and the character and degree of use the owner may have for such highway. In so far as its use is interfered with, or destroyed, the value of the farm is lessened, and for that the owner should recover, for he sustains some special pecuniary damages in excess of that sustained by the public generally.

But it is urged that the damages claimed arise, not from any physical invasion or disturbance of appellee’s property, or actual encroachment upon the highway, but alone from the injury to the use and enjoyment thereof caused by the operation of the railroad; that such operation being lawful and confined to appellant’s right of way, the damages arising therefrom to appellee would be damnum, absque injuria. We admit there is force in this suggestion, and so far as we are aware this precise question has not been passed upon by the Supreme Court. The nearest approach to it is in the case of Rigney v. City of Chicago, 102 Ill. 64, where there was no direct interference with the premises of Bigney, but an obstruction placed in the street at a distance therefrom, thereby injuring the use of the street, or, as stated in the opinion, “ it is not pretended or claimed that the plaintiff’s possession has been disturbed, or that any direct physical injury has been done to his premises by reason of the obstruction in question. The gravamen of the plaintiff’s complaint is, that the defendant, in cutting off his communication with Halsted street by way of Kinzie street, has deprived him of a public right which he enjoyed in connection with his premises, and thereby inflicted upon him an injury in excess of that shared by him with the public generally, and it is for this excess he seeks to recover, and nothing more;” and the court says: “ If the lot and buildings of appellant are to be regarded as property, and not merely the subject of property, as, strictly speaking, they are, then there has clearly been no physical injury to it; but if by property is meant the right of user, enjoyment and disposition of the lot and buildings, then it is evident there has been a direct physical interference with appellant’s property, and when considered from this' aspect, it may appropriately be said the injury to the property is direct and physical.”

We are inclined to think there is no good reason for distinguishing between an injury arising from an interference with appellee’s right to the advantages the highway gave his farm, caused by a physical obstruction placed therein, as in the foregoing case, and where the same bind of an injury is produced by the operation of trains beside it. In either case the advantages given the farm by the highway have to some extent been destroyed, and the land lessened in value.

If it be conceded that the result of operating the road has in fact injured appellee’s farm in a way not common to the public and thereby made it less valuable, it would seem to follow as a necessary consequence, that it has been damaged for public use. Such operation being lawful, and confined to the right of way, does not release appellant from liability, for it would clearly be liable for damages caused by an unlawful act, and, as we understand the constitutional provision that private property shall not be taken nor damaged for public use without just compensation, it means to cover cases where damages are caused by acts that are legal and entirely within the powers of the corporation performing them, but in the doing of which for the use and benefit of the public, private property is damaged. It follows, therefore, that appellant’s proposition that “a corporation is not liable unless an individual doing the same thing on his qrrivate property would be,” as applied to this case, is not sound.

An individual can not legally take or damage qarivate property for public use, but a railroad company can lawfully do either, if, in so doing, it makes compensation.

It has been suggested that if this recovery can be sustained, it would authorize repeated suits, upon the theory that a new injury is caused by every passing train, thus giving ground for successive actions. This is a misapprehension of the true grounds upon which the right of recovery rests. The damage to appellee is caused by the construction of the road in such place, as the proper and only way of operating it did of necessity from that time, injure the farm and lessen its value. It is the right which appellant has, at its pleasure and' for all future time to operate its trains, that at once depreciates the value of the farm, and not the effect produced by the passing of particular trains or any particular injury or accident that may occur to appellee’s property therefrom; hence, the damages arose at the time of the construction of the road, and were then capable of being determined once for all.

Believing that this view of the law is within the spirit and meaning of the constitutional provision alluded to, and has been fairly applied by the court below, the judgment of the Circuit Court will he affirmed.

Judgment affirmed.