author: Mr. Presiding Justice Marker

text:
    Cleveland, C., C. & St. L. R. Co. v. George R. Wilson et al.
    1. Railroads — When Liable as Common Carriers and Not as Ware-housemen. — Where a railroad company furnishes cars as a common carrier for purposes of transportation, receives a consignment of grain for shipment and is notified of its destination, its liability as a common carrier, is fixed, independent of statements in its bill of lading, and it can not escape such liability by issuing one in the form of a track or warehouse receipt after the destruction of the consignment.
    Assumpsit, for grain destroyed by fire. Appeal from the City Court of Mattoon; the Hon. James F. Hughs, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Geo. F. McNulty, attorney for plaintiff in error.
    Craig & Kinzel, attorneys for defendants in error.
   Mr. Presiding Justice Marker

delivered the opinion of the court.

The defendants in error, grain buyers at Leroy, III., on the 17th of August, 1896, called upon the station agent of the plaintiff in error at that place to procure for them three cars in which to ship corn to E. S. McClure & Co., at Farmer City, Ill. The cars were furnished and loaded on the 19th of August. The loaded cars were received by the railroad company and remained upon a side track until early in the morning of August 20th, when a fire, which started in adjacent buildings, destroyed one of them and all the corn in it. The defendants in error, claiming that the railroad company was liable as common carrier, brought suit to recover for the car destroyed and obtained a judgment for $129.49.

The railroad company contends that it did not hold the car load of corn as common carrier, but as warehouseman, and is consequently free from liability for its loss. That was the only question in issue upon the trial. The sole reliance of the company in its contention is the peculiar wording of a bill of lading which its agent issued and delivered to the defendants in error after the lire. The wording of the instrument made it nothing more than a mere track receipt. It did not show the destination of the cars, and the language employed gave it no greater legal force than that of an ordinary warehouse receipt. One of the defendants in error testified, however, that he told the agent the destination of the cars when he ordered them; that when he completed loading the cars on the nineteenth of August, he received from the agent a bill of lading which showed the destination of the cars to be Farmer City, Ill., consigned to McClure & Co., which was attached to a sight draft on McClure & Co. and deposited in a local bank. He further testified that after the fire, there then being but two car loads of corn to draw against instead of three, he surrendered the first bill of lading and received two others in return, one for the two remaining cars, which he attached to a draft and deposited with the bank, and the other for the car load destroyed. Objection was made to his stating the contents of the first bill of lading, for the reason that notice to procure it had not been given to the company. If his testimony as to its contents be excluded, the fact remains that the agent was notified of the destination of the cars and to whom they were to be consigned. When the company furnished the cars, it did so as a common carrier for the purpose of performing its obligation as a common carrier. When informed that the cars were loaded and ready for shipment, its agent knew their destination and received them for transportation. The company’s liability was fixed then, independent of a bill of lading, and it could not escape it by issuing one after the fire in the form of a track receipt or warehouse receipt. There is an extended discussion in the printed argument filed, of errors assigned upon rulings of the trial court upon the admissibility of evidence and the giving and refusing of instructions. Neither the amount at stake nor the principles involved justify a detailed consideration of them in this opinion. The judgment is right upon the merits and will be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Burroughs

license: Public Domain

text:
    Leonard Richie et al. v. Lillie Capps Cox, Executrix, etc.
    1. Wills — What is to be Considered in Equity as an Offer to Purchase a Widow's Power. —Where the widow of a testator is entitled to dower in all of the real estate of a testator, the fact that he has, by his will, devised to her the fee designated in a tract of land, is to be considered in equity as an offer on his part to purchase her dower interest in all of his real estate for the benefit of his estate.
    2. Same — Effect of a Widow's Election to Take Beal Estate Devised to Her in Fee. — Where the widow of a testator elects to take real estate devised to her in fee, she becomes barred under the statute from claiming dower in the real estate of the testator, and is considered in equity a purchaser of the real estate devised to her for a consideration to the extent of the value of the dower so barred and not strictly as a beneficiary of the testator’s bounty.
    3. Same — How Beal Estate Devised to a Widow in Fee is Considered in Equity. — Real estate devised in fee to a widow is considered in equity as representing the dower of such widow in all the real estate of the testator and exempt from the payment of his debts as well as her estate of homestead.
    Petition to Sell Beal Estate, to pay a deficit of the testator’s obligations. Error to the County Court of Macoupin County; the Hon. David E. Keefe, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Knotts & Terry and Walker & Searcy, attorneys for plaintiffs in error.
    Bell & Burton, attorneys for defendant in error.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Charles C. Capps, late of Macoupin county, Illinois, died testate in March, 1897, leaving as his widow, Lillie Capps, now Lillie Capps Cox, the defendant in error, and leaving no children or descendant of a child or children him surviving. At the time of his death, he was seized of the following described real estate situated in Macoupin county, Illinois, to wit:

The northeast quarter of the northwest quarter of section Mo. two (2), and the northwest quarter of the northeast quarter of section Mo. two (2), and fifteen acres off of the south half of the northeast quarter of the southwest quarter of section Mo. one (1); all in township Mo. eleven (11) north, range Mo. nine (9) west of the third principal meridian.

The testator and his wife, when he died, were residing upon the forty-acre tract, first above described, as their homestead, and she has continued to live upon it as her homestead ever since. By his will, the testator devised the homestead forty to his widow in fee, and the forty secondly above described, and the fifteen acres thirdly above described he devised to his two minor nephews, Leonard Bichie and Samuel Bellamy, the plaintiffs in error, subject, however, to a prior devise thereof to his widow for and during her life or until she marries. The personal property left by the testator amounted to $2,307.50. The widow was named as executrix in the will, and qualified as such in the County Court of Macoupin County, where the will was probated and the estate is being administered. The County Court allowed her $1,000 for her widow’s award; and the debts of the testator allowed against his estate, together with the costs of administration, amounted to $2,135.84, making the total indebtedness of the estate, including the award, $3,135.84. The executrix applied the proceeds of the personal property toward paying the indebtedness and award, and there remained a deficit of $828.34.

The widow having married one W. T. Cox, the plaintiffs in error, by their respective guardians, on that account took possession of the sixty-five acres devised to them under the provisions of the will. The defendant in error, as such executrix, petitioned the County Court for an order to sell sufficient of the real estate devised, to pay said deficit, setting up the facts above stated, and requesting the court to direct that she sell the forty acres devised to the plaintiffs in error, as that would bring enough to pay the deficiency, and that the fifteen acres devised to them had been sold by decree of the Circuit Court of Macoupin County, Illinois, in a partition proceeding, and was not of sufficient value to pay the deficiency; that no part of the forty acres devised to her in fee should be ordered sold to pay the deficit, or that she be called upon to contribute toward pajdng any part thereof unless the forty acres devised to plaintiffs in error did not sell for enough to pay it.

The plaintiffs in error were made parties defendant to the petition, and being duly brought into court by way of answering it, filed a pleading as follows:

“ And now comes Leonard Richie, by Robert R. Richie, his guardian, and Samuel Bellamy, by Edward Bellamy, his guardian, and saving and reserving unto themselves all and all manner of exceptions and objections to the many insufficiencies of the said petition and to the accuracy of the account of the petitioner as administratrix of the "said estate, in the said petition stated, and hereby except, object and demur to the said petition, and as grounds of their said exception, objection and demurrer to said petition, say that their said lands in the said petition mentioned and described should not be subjected nor sold alone for the payment of the deficit of the personal estate of said estate for the payments of the debts thereof, and say that whatever such deficit, if any there be, should be apportioned, according to value, between the said lands of the defendants mentioned and described in said petition, and the said lands of the said Lillie Capps Cox, petitioner.
“ Wherefore, these defendants pray that the said petition may be dismissed at the cost of the said petitioner.
“ Leonard Richie,
By Robert R. Richie,
His guardian and next friend, and “ Samuel Bellamy,
By Edward Bellamy,
His guardian and next friend.”

The court having heard the proceeding on' the pleadings of the parties and the evidence submitted, found that the facts stated in the petition were true as therein stated, and ordered that the executrix proceed in manner provided by the statute to sell the real estate devised to plaintiffs in error to raise a fund to pay the deficit and that no part of the real estate devised to defendant in error in fee be sold for that purpose, or that she be called upon to contribute to such fund for that purpose unless the proceeds of the real estate ordered to be sold should not produce a sufficient amount to pay the deficit, and then only to raise the remainder of the deficit after such proceeds have been so applied.

The plaintiffs in error, by their respective guardians, excepted to the order of the court, because it placed all the burden of paying the deficit upon the real estate devised to them, when the payment of it was a common burden upon the real estate devised to both her and them. Plaintiffs in error, by their guardian, prosecute this writ of error out of this court to the County Court to reverse the order, and contend that it was prejudicial error for the court not to order both the real estate devised to defendant in error in fee, and that devised to the plaintiffs in error, to raise the fund to pay the deficit, in the proportion of the value which each bears to the amount of the deficit.

And in support of this contention they cite Deltzer v. Scheuster, 37 Ill. 301, where Anthony Scheuster died in 1861, leaving as his widow, Sally Scheuster, afterward Sally Deltzer, and his two minor children, Otto and Edward, and the father, by his will, devised a certain lot in Henry, Illinois, to his wife, Sally, and certain other lots to his children. The personal property which he left was valued by the appraisers at $151.50. The County Court allowed his widow $740.50 as her separate property. She was named and qualified as executrix of his will, and took part of the personal property at its appraised valuation to apply on her allowance, and afterward procured an order from the County Court for the sale of the lots devised to the children, to raise a fund for the payment of her allowance and of a small amount of indebtedness found to be owing by the estate. And the children filed in the Circuit Court their bill in chancery, and enjoined the executrix from making this sale, and on the hearing the court made the injunction perpetual. Upon appeal by the executrix the Supreme Court reversed the decree on the ground that the court erred in perpetually enjoining the executrix from selling the real estate and in the opinion said:

“ We have no doubt that the complainants in this bill were entitled to some relief against tne order of the County Court, but not to the extent allowed. The fiftieth section of the statute of wills provides, as plain as language is capable of doing, that ‘ the right of the widow to her separate property shall, in no case, be affebted by her renouncing, or failing to renounce, the benefit of the provisions made for her in the will of her husband, or otherwise, as provided in chapter thirty-four of the Revised Statutes. In the face of this explicit provision, it is impossible to say that the appellant (widow) lost her right to the separate property allowed to her, because she did not renounce the provisions of the will in her favor. Section 10, chapter 34 of the Revised Statutes, must be construed to apply to other ‘ personal estates than that set apart to her under the forty-eighth section of the chapter of wills.
“ In the case at bar, the appellant, as settled in the case of Cruce v. Cruce, 21 Ill. 46, is entitled to be regarded as a creditor to the extent of her separate allowance, and to have the real estate sold for its payment. It would, however, be obviously inequitable to require, as the County Court did, by its decree, that the fund should be raised exclusively from the real estate devised to the children. The debts or claims against the estate are a common burden, and in equity, must be borne by all the property devised by the deceased. To permit the widow to hold the lots devised to her by the will, and to sell those devised to the children for the payment of her statutory allowance, would be to permit her wholly to defeat the purposes of the testator. If she claims benefits from his will, she must respect those designed to be bestowed upon others. It is enough to say, however, that here is a common fund in the hands of different parties, liable to a common burden, and the burden must be equally borne. Equality here is equity.
“ The court below will ascertain the comparative value of the real estate within its jurisdiction devised to the widow and that devised to the children, and apportion the indebtedness of the estate, including the widow’s allowance, according to the respective values of the property devised.
The homestead, however, which, as we understand the record, was devised to the children but is occupied by the widow, will not be considered in the valuation, or subjected to the sale.”

The Scheuster case and the one we have before us have many facts which are similar, but there is some difference between them, for in that case the homestead exemption was in the real estate devised to the children, while in the one at bar the homestead exemption is in the real estate devised to the widow, and the record in this case does not disclose whether the value of the real estate devised to the widow in fee was worth more or less than the $1,000 estate of homestead which she held in it and which, under the statute, was exempt from sale to pay the deficit. And in addition to her homestead exemption, defendant in error, as the widow of the testator, was entitled to take dower in all of his real estate, and his giving her the fee, by his will, in the forty where her homestead was, should in equity be considered an offer to her on his part to purchase her dower interest in all of his real estate for the benefit of his estate (Blanchford v. Newberry, 99 Ill. 62, and Carper v. Crowl, 149 Ill. 465), and when she elected to take the real estate devised to her in fee, she became barred under our statute, from such dower, and in equity, is considered a purchaser for a valuable consideration of the real estate devised to her to the extent of the value of such dower so barred, and not strictly as the beneficiary of a mere bounty from the testator. Carper v. Crowl, supra, and Towle v. Swasey, 106 Mass. 100.

And on that account also, the real estate devised to her in fee, will be considered in equity as representing her dower in all of the testator’s real estate and exempt from the payment of his debts as well as her homestead.

The forty acres devised to defendant in error in fee, therefore embraced her homestead and dower rights in the real estate of her deceased husband, and was properly held by the County Court to be relieved from the burden of contributing to the fund to pay the deficit until the forty devised to plaintiffs in error was exhausted in producing such fund, and for those reasons, we ought to and will affirm its order. Affirmed.


text:
    E. X. Leseure v. James K. P. Weaver.
    1. Promissory Notes — Intrusted to the Custody of a Third Person, with Unfilled Blanks. — Where a person executes a promissory note and intrusts it to the custody of another, with blanks not filled up, whether it is for the accommodation of the person to whom id is intrusted or is to be used for the benefit of the maker, such note carries with it on its face an implied authority to fill the blanks necessary to perfect it; and as between the maker of the note and an innocent third party, the person to whom it was intrusted must be deemed the agent of the party who intrusted it to him, in filling the blanks necessary to perfect it.
    ■ 2. Same — What is Not a Defense to a Note in the Hands of an Innocent Holder for Value Before Maturity and Without Notice. — Where a person signs a promissory note and carelessly leaves the blank spaces where the rate per cent of interest and attorneys’ fees can easily be inserted without defacing it or exciting the suspicion of ordinarily careful men, he becomes liable upon it to a party who purchases such note for a valuable consideration, before maturity, and without notice that the blanks were filled up after the maker had signed it.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Moultrie. County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1901,
    Reversed and remanded.
    Opinion filed December 10, 1901.
    R. M. Peadro and Geo. A. Sentel, attorneys for appellant.
    Whitaker & Thompson, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

On January 31, 1899, appellant, E. X. Leseure, sued appellee, James K. P. Weaver, in the Circuit Court of Moultrie County, in an action of assumpsit upon a promissory note and the written indorsement thereon. The note is as follows:

“Canton, Miss., Feb. 7, 1896.
November 1st, 1898, after date, without grace, for value received, I promise to pay to the order of J. M. Tinsley, eighteen hundred and thirty-three 33-100 ($1,833.33) dollars with interest at the rate of 7 percent per annum from Nov. 1st, 1896, until paid, and 10 per cent additional on amount of principal and interest unpaid for attorney’s fees if placed in the hands of an attorney for collection.
James K. P. Weavee.
Payable at — ”

And the indorsements written on the back thereof, are as follows:

“ Pay Frank Lindley without recourse. J. M. Tinsley.”
“ Payment guaranteed to E. X. Leseure and indorsed to him. F. Lindley.”

The declaration contains a special count on the note and indorsements, and the common counts. Appellee pleaded the general issue, non est factum sworn to, as to the special count, and four special pleas, which in substance set up in bar of the action on the note, that it was executed by appellee on or about February 7, 1896, in furtherance of a written contract then made between appellee and the payee, Tinsley, in which Tinsley agreed to sell appellee 1,140 acres of land in Mississippi for $7,000, to be paid for by appellee conveying a house and three lots in Arthur, Illinois, at $1,000, and by giving Tinsley appellee’s three notes, aggregating $6,000, one due November 1, 1897, one due November 1, 1898, and one due November 1, 1899; that when the notes were executed, by agreement between appellee and Tinsley, they and the written contract were left in possession of one Platt, who was an attorney in Canton, Mississippi, to remain with him until the deeds provided for in the contract were executed and delivered, and Platt notified by appellee to deliver the notes to Tinsley; that the deeds were never executed nor Platt notified to deliver the notes to Tinsley, but that by fraud and misrepresentation, Tinsley procured possession of the contract and notes, one of which is the note in question in this case, and although Tinsley has since been requested by appellee to return the notes to him, he refused to do so; that the note sued on, when executed by appellee, did not provide for seven per cent interest or ten per cent attorney’s fees, but that the figures “ 7 ” and “ 10 ” were written in the blank spaces where these figures appear in the note, without appellee’s knowledge and without his consent, after he signed it; that appellant had notice of the fraud and misrepresentation by which Tinsley procured possession of said notes from Platt, and that the note sued on was without consideration. Appellant joined issue on the pleas, of non assumpsit and non estfactum, and.traversed the special pleas, upon which appellee joined issue.

The issues presented by the pleadings were tried by jury and resulted in a verdict and judgment in favor of appellee, but on appeal to this court by appellant, the judgment was reversed, for reasons given in the opinion in 89 Ill. App. 628, and the case was remanded for a new trial. After being reinstated, it was again tried by jury in the Circuit Court, upon the same pleadings as before, and resulted in another verdict and judgment in favor of appellee.

Appellant moved for a new trial on the grounds, among others, that the verdict is not supported by the evidence; that the court, at the instance 'of appellee, admitted improper evidence and gave improper instructions over the objections of appellant, which being overruled, appellant excepted, and brings the case to this court again by appeal, and urges a reversal of the judgment upon the grounds, as he claims, among others, that the verdict is not supported by the evidence; that the court, at the instance of appellee and over objection of appellant, admitted improper evidence and gave improper instructions.

The evidence is undisputed that the note in question was executed by appellee in pursuance of a written contract between him and the payee, Tinsley, made on or about February 7,1896, in which Tinsley agreed to sell appellee 1,140 acres of land in Mississippi for $7,000, and appellee agreed to pay for it by conveying to Tinsley a house and three lots in Arthur, Illinois, valued at $1,000, and by giving him three notes, payable, one in November, 1897, one in November, 1898, and one in November, 1899, for the remaining $6,000, with interest at the rate of seven per cent from November 1, 1896. Appellee testified that the three notes were signed by him when the contract was made, and that blank spaces were left for the rate of interest and the rate per cent of attorney’s fees, but whether appellee authorized any one to fill the blanks or not, does not appear.

After they were executed by appellee, the three notes and the contract were left by him in the possession of one Platt, an attorney practicing in Canton, Mississippi, to remain with him until the deeds provided for in the contract were executed and delivered in accordance with its terms, and then appellee would direct Platt to deliver them to Tinsley. The deeds were . never executed, for some reason not disclosed by the evidence, nor did appellee inform Platt to deliver the note to Tinsley, but in some way, not disclosed by the evidence, Tinsley obtained possession of the notes, and afterward, when appellee saw him at Arthur, Illinois, in the fall of 1897, he demanded possession of the notes from Tinsley, but the latter refused to give them up, and on October 10, 1898, sold the one in question, and the one payable in 1898, to one Frank Lindley, an attorney and broker of Danville, Illinois, for $3,666.66, and indorsed and delivered them to him without recourse; and on October 14, 1898, Lindley sold the one in question to appellant for $1,833.30, and after assigning and guaranteeing the payment, thereof, delivered it to him. Appellant lives in Dan-ville, is a capitalist and buys notes sometimes; bought others from Lindley before purchasing the one in question; and neither he nor Lindley had any notice of how the note in question was obtained by Tinsley, or what the consideration given for it was. or of any of the defenses which appellee had to the note. Tinsley told Lindley when he offered to sell him the notes, that appellee gave them to him for Mississippi land which he purchased from him, and that appellee was financially responsible. And Lindley, not then knowing Tinsley or appellee, made inquiry concerning the financial responsibilty of appellee and learning that he was responsible, bought the notes. Appellant never kneiv Tinsley or appellee until after he purchased the note. The evidence does not disclose when or by whom the blanks left in the note were filled as they were when the note was purchased by Lindley and appellant, and as appellee made only a general objection to the note when it was offered in evidence and the court overruled the objection, it will be presumed that the note bore no evidence of erasures or interlineations. Merritt v. Boyden & Son, 191 Ill. 154.

At the request of appellee, and over the objection and exception of appellant, the court gave the jury two instructions as follows:

“ 1. Under the law of this State, where a note, after it has been executed and delivered, is changed in any material part by adding any new provision or changing any material promises contained in the original obligation, such note becomes absolutely void, not only in the hands of the original payee, but also in the hands of any subsequent purchaser.
“ 2. The court instructs the jury that it is their duty in determining the rights of the parties in this case to take into consideration all the facts and circumstances shown by the evidence, and if the jury believe, after a careful consideration of all the facts and circumstances introduced in evidence, that the plaintiff at the time he purchased the note in controversy was not an innocent purchaser for value, but that he acted in bad faith in the purchase of said note and with an intent to assist in defrauding the defendant, then and in that state of the proof, it would be the duty of the jury to find the issues for the defendant.”

Counsel for appellee, in support of the verdict and judgment, insist that the note became void by reason of being changed after appellee executed and delivered it to Pratt, and for that reason the evidence supports the verdict and the court properly gave appellee’s first instruction.

In that view, however, we can not concur, for as we understand it, negotiable instruments are frequently delivered for use, with blanks not filled; ” and with respect to such instruments, it is held, that where a party to such instrument intrusts it to the custody of another for use, with blanks not filled up, whether it be to accommodate the person to whom, it was intrusted, or to be used for the benefit of the signer of the same, such negotiable instrument carries on its face an implied authority to fill the blanks necessary to perfect the same; and the rule is that, as between such party and an innocent third party, the person to whom the instrument was so intrusted, must be deemed the agent of the party who committed the instrument to his custody, in filling the blanks necessary to perfect the instrument. Angle v. North western Mutual Life Ins. Co., 92 U. S. 340; Merritt v. Boyden & Son, 191 Ill. 136, and authorities therein cited and reviewed.

When appellee signed the note in question and carelessly left blank spaces where the rate per cent of interest and attorneys’ fees could be easily inserted without defacing it or exciting the suspicion of a careful man, he became liable upon it to appellant, whom the undisputed evidence shows to have, in good faith, purchased it for value, before maturity, and without any notice whatever that such blanks were filled after appellee signed it. Merritt v. Boyden & Son, 191 Ill. 136.

The change in the note, under the circumstances shown by the evidence, did not render the note void in the hands of appellant, a bona fide holder of it for value before maturity and without notice of that change, because appellee himself, by his carelessness in leaving such blank spaces, made it possible for the alteration to be made without defacing the note, and he and not appellant should suffer the loss occasioned thereby. Merritt v. Boyden & Son, sivpra.

The court, therefore, improperly gave appellee’s first instruction.

The court erred also in giving appellee’s second instruction because there was no evidence of any bad faith shown on the part of appellant in'purchasing the note, or that he was not in good faith a purchaser of it for value, or that he purchased the note with intent to assist in defrauding the defendant, and therefore there was no evidence to base the instruction upon.

After appellee admitted, when testifying, that he signed the note sued upon and left blank spaces in it, it was error for the court to permit him to further state over the objection of appellant that he received nothing for the note, for the reason that want or failure of consideration was no defense as against appellant, the holder in good faith for value before maturity, and without notice that the consideration for the note had failed or there was no consideration for it. Smith v. Doty, 24 Ill. 164; Baldwin v. Killian, 63 Ill. 550.

For the errors indicated, we will reverse the judgment and remand the case to the Circuit Court of Moultrie County for a new trial. Beversed and remanded.


text:
    Baltimore & O. S. W. R. R. Co. v. Annie Clifford, Adm’x.
    1. Railroads — Duty to Keep the Road-bed Between the Tracks in Switching Yards in a Reasonably Safe Condition. — It is the duty of a railroad company to keep its road-bed between the tracks in its switching yard in a reasonably safe condition, so that its switchmen can walk thereon with reasonable safety while coupling cars.
    2. Same — Knowledge of a Defect by an Employe, When a Matter of Defense. — The fact that an employe of a railroad company has knowledge of a defect in the track through which he receives an injury, is a matter of defense, and in the absence of evidence showing that he had such knowledge it will not be presumed that he had, since no one is presumed to knowingly incur physical pain and death where he can avoid it.
    3. Same — Ordinary Careby Switchmen While Discharging Their Duties. — Switchmen in the employ of a railroad company, while discharging their duties as such, and having their attention constantly directed to moving cars and their coupling and uncoupling, can not be expected to give much attention to the condition of ties, switch bars, etc.
    Trespass on the Case. — Death from negligence. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Shutt & Graham, attorneys for appellant.
    Mather & Snigg, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Appellee, as the administratrix of the estate of her deceased husband, James E. Clifford, sued appellant in the Circuit Court of Sangamon County, in an action on the case, for negligently causing his death while in the discharge of his duty as a switchman in appellant’s yards near the city of Springfield.

The case was tried by jury and resulted in a verdict and judgment in favor of appellee for $3,750 damages.

Appellant brings the case to this court by appeal and urges the judgment reversed upon the alleged grounds that the court admitted improper testimony, and that the verdict is not supported by the evidence.

The declaration, among other things, charges that appellant negligently permitted its switch or side track connected with its main track just southeast of the city limits of the city of Springfield, known as the “ Tansey Switch,” to be and remain in an unsafe and dangerous condition. This switch is used in connection with its main track for switching cars on and off the main track when making up trains and storing cars, and to get cars standing on the main track off onto said switch, when trains were passing to and fro, or expected to pass upon said main track.

That the husband of appellee, in his lifetime, was in the employ of appellant as switchman to couple and uncouple, and switch its cars on said side track or switch, and it was the duty of appellant to keep and maintain said side track or switch in a reasonably safe and proper condition, so as not to expose appellee’s intestate to any unnecessary danger or liability while discharging his duties there as such switch-man; yet appellant, not regarding its duty in that behalf, permitted its said side track or switch, to be and remain in said unsafe repair and condition by carelessly permitting certain cross-ties therein to remain above the surface of the ground some six or eight inches without having the ground between them and the bottom of the rails filled so that appellee’s intestate would not be exposed to unnecessary danger while attending to his said duties there.

That while appellee’s intestate was engaged in switching and coupling cars of appellant on said side track or switch, and was doing so hastily by direction of his conductor in order to get the same off the main track onto said side track so as to let a passenger train of appellant then due, pass thereon, and while he was using due care for his own safety in so doing, and was unfamiliar with the said dangerous condition of said side track or switch, he unavoidably stumbled over said exposed ties and fell onto one of the rails of said side track or switch and was run over and killed by the cars of appellant, which he was then and there engaged in switching and coupling.

And an additional count of the declaration also further charges that appellant negligently permitted the lever bar of the coupling apparatus attached to one of its freight cars to become and remain out of repair so that appellee’s intestate, in attempting to cotiple the car to another car on said dangerous side track or switch, was compelled to walk in front of said car while it was in motion, and in so doing, got his foot caught between the ties where they were not ballasted, by reason of which he was thrown in front of said car and thereby killed.

Appellant pleaded not guilty.

The evidence shows that appellee’s intestate had been in the employ of appellant as a switchman in its yards at Springfield for about two months, when he was killed by being run over by the car he was attempting, to couple while it was being pushed from the main track onto the “ Tansey Switch,” it being a part of appellant’s switching yards at Springfield. He was what is called “ field man,” and in switching cars, rode on or near the end of the train, and when cars were being backed onto a side track he opened the switch and coupled the car on the end of the train to the car already on the switch, if any were there. If the car to be set in on the side track was equipped with an automatic coupler it was the duty of the “ field man ” to adjust the coupler so it would couple onto the other car.

About 9:35 o’clock a. m. of the day the deceased was killed, he and the crew with whom he worked, started with a C., B. & Q. box car from the Wabash “ Y ” at Tenth and Madison streets in Springfield, to take it to “ Tansey Switch,” which is just east of the city. At the time there were three coal cars in front of the engine and five box cars behind it, the C., B. & Q. car being the hindmost car'of the five.

The C., B. & Q. car was equipped with an automatic coupler, and when the rear end of it had passed the switch stand at the Tansey side track about fifteen or twenty feet, the train stopped on the main track, and deceased got down from the rear end of the C., B. & Q. car, onto the ground, and remained there until the engine was cut off from the front end of the five box cars and pushed the three coal cars onto the Converse switch, which was some six or eight hundred feet further on. The engine, returning to the main track, coupled onto the front end of the box cars and commenced backing the five box cars onto the Tansey Switch.” The deceased then attempted to arrange the automatic coupler on the end of the C., B. & Q. car, in order to couple it to the end of a car on the switch by means of the lever at the end of the car, but it would not work, and he went in front of the moving car, walking between the tracks, and tried to adjust the coupler with his hands, and while so doing his feet went between the cross-ties, which were above the ground some six or eight inches, without ballast between them, causing him to stumble and fall, and the wheels of the car ran over and killed him.

It sometimes happens that the lever will not adjust the automatic coupler, and it is usual in such cases for the switchman to adjust the coupler with his hands, and in order to do so it is necessary for him to get his body opposite the end of the car.

At the time in question, a passenger train was about to be due to pass on the main track at the place in question, and the cars were being handled rapidly to enable it to do so.

It is contended that inasmuch' as the deceased had worked in the yards for about two months before he was killed, he had such knowledge of the condition of the tracks therein that it will be presumed that by remaining in the service there, he assumed the hazard incident to the use he was making of the same when killed. But we think it was the duty of appellant to keep its road-bed between the tracks in its switching yard in a reasonably safe condition, so that the switchman could walk thereon with reasonable safety while coupling cars. I. C. R. R. Co. v. Sanders, 166 Ill. 280, and L. E. & W. R. R. Co. v. Morrissey, 177 Ill. 382.

And it was a matter of defense that the deceased had knowledge of the defects through which his injury was received, and in the absence of the evidence showing that he had such knowledge, it will not be presumed he had, since no one is presumed to knowingly incur physical pain and death where he can avoid it at his discretion. C. & E. I. R. R. Co. v. Hines, 132 Ill. 168.

And while the evidence shows that the deceased had worked putting cars on and taking them off the “ Tansey ” side track daily for about two months before he was killed, yet it also shows that appellant’s switch yards, in which he worked, extended over several miles, and the attention of deceased, as such switchman, being constantly directed to moving cars and their coupling and uncoupling, he could not possibly give much attention to the ties, switch-bars, etc., over which he might, from time to time, have to pass. C. & E. I. R. R. Co. v. Hines, 132 Ill. p. 161.

The witness Keemer testified that the cross-ties were at least four inches above the level of the ground and the track was not ballasted where the deceased was killed, and that a similar condition existed for some twenty-two or three car lengths beyond, and after he had so stated, there was an “ objection by defendant (appellant) to that part of it except in the immediate vicinity of the point where the accident occurred. Overruled. Exception.” And it is contended that the ruling of the court in that regard was improper.

While it was only material for the jury to know the condition of so much of the track as was involved in causing the injury in question, yet we are unwilling to hold that the court committed such prejudicial error in overruling the objection, as justifies a reversal of this case on that account alone; and being of opinion that the evidence supports the verdict and judgment, the latter will be affirmed.


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    Chicago, Peoria & St. L. Ry. Co. v. Edward J. Vaughn.
    1. Forcible Detainer — Evidence Admissible in Defense of the A ction. —On the trial of an action of forcible detainer against a railroad company by a remainder-man for a strip of land acquired by a quitclaim deed from the life tenant, by such company, proof that it needed the land for Railroad purposes, and that it had before the commencement of the action of forcible detainer, offered to pay the plaintiff all proper damages for its use — that before the trial of such suit had commenced it applied to the court by a proper bill in chancery for that purpose and with proper notice to the plaintiff, for an order staying the further prosecution of the suit of forcible detainer until the court could, in such proceeding, .ascertain the amount of damages to which the plaintiff was entitled from it for the use of such land for railroad purposes and offered to pay Mm such damages when ascertained — that such suit was still pending and that the court had not yet determined what order it would make on said application — -is competent, and should be admitted.
    2. Railroad Companies— When Not to be Dispossessed by Actions of Forcible Detainer. — When a railroad company acquires the possession of a strip of land from a life tenant for its right of way, takes lawful possession and constructs its railroad uponit, as it possesses the power to acquire the right to continue the use of it for railroad purposes as against the remainder-man upon paying him his compensation and damages, he will not be permitted to dispossess the railroad company by a summary proceeding in forcible detainer and recover with it the improvements rightfully put upon it by the company, as long as it is willing to pay him all the damages to which he is entitled, as soon as they can be ascertained, by contract or by condemnation under the eminent domain act.
    8. Real Estate — Legal Titles Prevail as a General Rule — Exception. —While, as a general rule, the legal title must prevail in actions at law, an action of forcible detainer can not be maintained against one in the lawful and x’ightful possession of land.
    Forcible Detainer. — Appeal from the Circuit Court of Jersey County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Thos. F. Ferns and Wilson & Warren, attorneys for appellant.
    Edward J. Vaughn attorney pro se.

   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of forcible detainer in which appellee, Edward J. Vaughn, complained to the Circuit Court of Jersey County that he is entitled to the possession of the north half of the southwest quarter of section ten, in township eight north, range ten west of the third principal meridian, in Jersey county, Illinois, and that appellant, the Chicago, Peoria & St. Louis Railroad Company of Illinois, unlawfully withholds possession thereof from him. To the complaint appellant pleaded not guilty, upon which issue was joined, and the parties stipulated in open court that the case should be tried by the court without a jury. It was tried by the court and resulted in a finding and judgment in favor of appellee for a strip of the land about fifty feet wide on each side of the center of the railroad tracks, where the same are located over and across the land. Appellant excepted to the finding and judgment; brings the case to this court by appeal, and urges that the judgment be reversed on the alleged grounds, among others, that the court refused to admit proper evidence offered by it, and .that the finding and judgment are contrary to the law and evidence of the case.

It appears that one Josiah Vaughn, the father of appellee, owned and possessed the land in 1879, when he deeded it to appellee and his brother, Charles W. Vaughn, but in the deed he reserved a life estate therein for himself. The deed was properly acknowledged and recorded- in the recorder’s office of Jersey county, the day it was made. The father remained in possession of the land under his life estate until a short time before his death, on July 18, 1900.

On the 11th day of November, 1881, while the father was in possession of the land under his life estate, he, for a valuable consideration, by a proper agreement in writing, duly signed, sealed and delivered, bound himself, his heirs, administrators, executors and assigns, to make unto the St. Louis, Jerseyville & Springfield Eailroad Company, a good and sufficient deed for a strip of land fifty feet wide on each side of the center line of its railroad as the same might be located and constructed by said company over and across the land; and in 1885, the father made it a quit-claim deed forva strip of the land fifty feet wide on each side of the center line of the railroad as constructed, which the company enclosed with fences for its right of way.

Since the railroad was constructed, it has been operated by appellant and those from whom it obtained title and possession by mesne conveyances. In the spring of 1900, Charles W. Vaughn conveyed his undivided one-half of the land to appellee, stating in the deed that it was subject to appellant’s right of way thereon, until the death of the father.

Shortly after his father’s death, in July, 1900, appellee requested appellant to put a switch on the land and maintain a flag station there, which it declined to do. He then demanded of appellant that it pay him damages for the use ■ of the strip, which appellant was willing to do. Negotiations were in progress between him and representatives of appellant, looking to the ascertainment and payment of such damages, when, on September 13, 1900, he made a written demand upon appellant for the immediate possession of all the land, and upon its failure to give him possession of the strip, which was all it had in possession, he commenced this suit against it the next day for possession of all the land.

On the trial, appellant offered to show that it needed the strip of land for railroad purposes, and said company, in pursuance of the agreement with the father in 1882, did locate and construct its railroad thereon, and that it had, before this suit was commenced, so informed appellee, and had offered to pay him all proper damages for its use, but that he wanted more than it was willing to pay; that before the trial of this case commenced, appellant applied to the court, by proper bill in chancery for that purpose, and with proper notice to appellee of the application, for an order staving the further prosecution of this suit until the court could, in the chancery proceeding, ascertain the amount of damages which appellee was entitled to from appellant for the use of the strip for railroad purposes, and offering to pay him such damages when ascertained; that such chancery case was still pending and the court had not yet determined what order it would make on said application. But upon objection of appellee, the court refused to admit the offered evidence and appellant excepted.

We think the court ought to have admitted the evidence which it excluded because, while the father was in possession of the land as life tenant, he could make any use of it he desired so long as he and those under him committed no injury to the inheritance which would amount to waste. When the railroad company, in 1882, under contract with the life tenant, took possession of the strip and constructed its railroad upon it, appellee, as remainder-man, could not prevent it, for at that time he was not entitled to possession of it, and would not be until the death of the life tenant, which did not occur until July, 1900. The railroad company, therefore," was not a trespasser when it took possession of the strip and constructed, at great expense, its railroad upon it; and as it possesses the power to acquire the right to continue to use it for railroad .purposes, as against appellee, the remainder-man, upon paying him his compensation and damages'therefor, he will not be permitted to dispossess it in this summary proceeding, and recover with it, the improvements rightfully put upon it by the railroad company, if appellant is willing to pay him all the damages to which he is entitled as soon as they can be ascertained by contract with him, or by condemnation under the eminent domain act. Chicago & Alton R. R. Co. v. Goodwin et al., 111 Ill. 273.

While, as a general rule, the legal title must prevail in actions at law, ejectment or forcible detainer can not be maintained against one in the lawful and rightful possession of land. For ejectment lies “ for the possession of the premises by one claiming they have been unlawfully entered upon and unjustly withheld.” Stow v. Russell et al., 36 Ill. 36. And in that case it was held that facts which disprove the unlawful entry or unjust withholding constitute a legal defense to the action of ejectment. In Turpin v. Baltimore, Ohio & Chicago R. R. Co., 105 Ill. 11, it was said: “Where the defendant’s possession is rightful and the plaintiff is not wrongfully kept out of possession, it is very well settled by the decisions of this court, that the action of ejectment can not be sustained.” And see Sands et al. v. Wacaser, 149 Ill. 530, where a number of cases are referred to, sustaining that view. To permit appellee to recover in this case, when the railroad company rightfully obtained possession and built its railroad upon the strip and is willing to pay him for the use of the land for railroad purposes, as soon as such damages can be ascertained, would enable him to get without paying for it, all the improvements put upon it, at great expense, by the railroad company, when justice only requires the company to make compensation by’ paying him the value of the strip without such improvements. Chicago & Alton R. R. Co. v. Goodwin et al., supra; Ellis v. Rock Island & Mercer Co. R. R. Co., 125 Ill. 82; and Calumet Ry. Co. et al. v. Brown, 136 Ill. 322.

Appellee should be content to receive damages for the use of his land and not the possession of it from appellant under the circumstances, if what appellant offered to prove is true, for the reason that the public has an interest in the successful operation of the railroad. Calumet River Ry. Co. et al. v. Brown, supra, and cases cited.

For the error committed by the court in refusing to admit the offered evidence, we will reverse the judgment and remand the case to the Circuit Court of Jersey County for further proceedings not inconsistent with the views herein expressed. Beversed and. remanded.


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    Nathaniel Gandy et al. v. Lydia J. Coleman et al.
    1. Harmless Error — Error Which Works no Prejudice to the Party Complaining. — Errors committed by the court in rendering a decree which work no prejudice to the party complaining, will not be sufficient to effect a reversal of it at their instance.
    Foreclosure, — Error to the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Frank P. Drennan, attorney for plaintiffs in error.
    John E. Hogan, attorney for defendant in error.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

On June 13, 1898, the defendant in error filed in the Circuit Court of Christian County, her bill of complaint in chancery against the plaintiffs in error, Nathaniel Gandy and Loretta F. Gandy, and all of the defendants in error except herself, setting up that on or about August 20,1892, plaintiffs in error borrowed of her §1,400, and to secure the payment thereof with interest, on that day gave her their principal note for §1,400, payable to her order two years after date, with interest at the rate of seven per cent per annum, payable yearly, and at the same time they gave her two other notes of that date for $98, one payable one ye’ar after, the other, two years after date, without interest, and representing the interest on the principal note. That to further secure the payment of said loan, with interest, they made, executed, acknowledged and delivered to her on said date first above named, their mortgage deed upon the west half of out-lot number two, in Wilkinson’s second addition to the town (now city) of Taylorville in said county; giving her a lien thereon to secure the payment of said notes; which mortgage was duly recorded in the recorder’s office of said county on the same day it was made. All of which . will more fully appear by said notes and mortgage, with its accompanying certificates of acknowledgment, ready to be produced, and by copies thereof attached to and made a part of this bill as “ Exhibits A and B.”

That on August 9, 1893, the plaintiffs in error sold and conveyed, by warranty deed of that date, to George E. Sharp, another of the defendants in error, the premises so mortgaged to defendant in error, Lydia J. Coleman, and it was stipulated in the deed that said Sharp assumed and agreed to pay said 'indebtedness secured by said mortgage as a part of the consideration of said conveyance of said premises to him.

That on February 8,1897, said George E. Sharp sold and conveyed said mortgaged premises, by his quit-claim deed of that date, to one Newell Douglas Ricks, who did not assume or agree to pay the said indebtedness secured by said mortgage.

That said two interest notes have been paid, and there has also been paid on the principal note ten dollars on August 8, 1896, ten dollars on September 15, 1896, twenty dollars on November 14, 1896, apd twenty dollars on February 3, 1897, leaving the amount due complainant on the principal note and mortgage, $1,400, with interest from January 1, 1895.

That said mortgage provides, among other things, that upon foreclosure and sale of said premises, there shall be first paid out of the proceeds of such sale all “ expense of advertisement, selling and conveying said premises, and a reasonable sum as attorney or solicitor’s fees to be included in the decree,” and that $150 would be a reasonable attorney’s fee in this cause.

That while holding the title to said premises under said conveyance from said George E. Sharp, and on January 11, 1898, said Newell Douglas Ricks departed this life testate, leaving him surviving Mary Ricks, his widow, and the following children, namely, his daughter, Lillie E. Smith, the wife of Paul C. Smith; his son, Newell S. Ricks; his daughter, Fannie T. Ricks, and his son, Ralph D. Ricks, who are his only heirs at law, devisees and legatees; that the last will of said Newell Douglas Ricks was duly probated and recorded in said county; that said Mary Ricks'is executrix thereof; and that said Ralph D. Ricks is a minor wdthout a guardian.

And complainant futher states, upon information and belief, that Andrew Fleshner has, or claims to have, some interest in said mortgaged premises, or some part thereof, as purchaser, mortgagee, judgment creditor or otherwise, which interest, if any, has accrued subsequent to, and is subject to the lien of complainant, under her said mortgage.

The bill makes Nathaniel Gandy, Loretta F. Gandy, George E. Sharp, Mary Ricks, Lillie Smith, Paul O. Smith, Newell S. Ricks, Fannie T. Ricks, Ralph D. Ricks, and Andrew Fleshner, defendants, and prays for the foreclosure of said mortgage, and sale of the premises to pay said indebtedness and costs in the usual way, and for general relief. The defendants to the bill were all regularly brought into court.

Exhibits A and B to the bill, are copies of the principal note and the mortgage described-in the bill.

Nathaniel Gandy, Loretta F. Gandy and George E. Sharp answered the bill, and say they admit that Nathaniel Gandy and Loretta F. Gandy executed to complainant the §1,400 note secured by the mortgage, as stated in her bill; that they conveyed the premises so mortgaged, to George E. Sharp by deed, containing the stipulation as in the bill stated, but that these defendants are unable to state with exactness, how much has been paid upon said mortgage indebtedness. And the defendant George E. Sharp further answering says, that for many years prior to February 8, 1897, said E. Douglas Ricks was acting as the general agent of complainant, making loans for her and settling same, taking care of her interests generally, and was, as this defendant is informed and believes, the general authorized agent of the complainant.

That this defendant further answering sav^s, that prior to February 8, 1897, said E. Douglas Ricks, as the agent of complainant, made and entered into an agreement with this defendant, that if he, said George E. Sharp, would make and deliver a quit-claim deed to said E. Douglas Ricks, to tiie said mortgaged premises, that he (Ricks) would accept same in satisfaction of said mortgage indebtedness. That said Ricks was at that time threatening to foreclose said mortgage, and about to institute proceedings for that purpose, and that said agreement so made between said agent of Lydia J. Coleman and this defendant, was' made for the purpose of avoiding the expense of such foreclosure. And that after that time this defendant was not called upon to pay any interest on said mortgage indebtedness, nor was any claim of any kind whatsoever made upon him by Lydia J. Coleman or her agent for the payment thereof, or any part thereof, until the institution of this suit. And this defendant avers that said deed was accepted by said agent of Lydia J. Coleman in satisfaction of said indebtedness, and the same was fully paid. And that said E. Douglas Ricks was, at the time, in possession of said notes and mortgages, and was duly authorized to settle and adjust the same, and to accept said conveyance in full satisfaction of said mortgage. And these defendants pray to be dismissed. The guardian ad litem appointed for Ralph D. Ricks by the court made the usual formal answer to the bill in cases of persons under . disability.

Afterward said George E. Sharp filed, by leave of court, his cross-bill in this case, in which he made the complainant in original bill, and the widow and children of FT. Douglas Kicks, parties defendant, and in it he set up the same facts which he states in his answer, relative to conveying the premises in question to their deceased father, for the purposes and under the agreement therein stated, and further avers that FT. Douglas Ricks, on said 8th day of February, 1897, went into possession of said premises, and he and his legal representatives collected the rents thereof since then, to the amount of $180 or more. And prays that the court make an order in this case, declaring the title to said land to have been held by FT. Douglas Ricks, in his lifetime, for the use of complainant in the original bill, and that the defendants to the cross-bill, who are the widow and heirs at law of him, since his death, be required to make, execute and deliver a deed, conveying the said premises to the complainant in the original bill; and that the same be received and accepted by her in satisfaction, and discharged of said mortgage, or if this is refused, that an account be taken of the rent, issues and profits collected by said FT. Douglas Ricks, and said Mary Kicks, widow and executrix, as aforesaid, and Lillie Smith, Paul C. Smith, FTewell S. Kicks, Fannie Kicks and Ralph D. Kicks, from said premises, and that they be required to pay the rent so collected as aforesaid, to the complainant in the cross-bill, and that he may have such other and further relief in the premises as equity may require and to the court may seem meet.

Said Lydia J. Coleman, one of the defendants to the cross-bill, filed her answer to the same, and admits that she filed her original bill as therein alleged, and to foreclose said mortgage for the purposes named in the original bill; that FTathaniel Gandy and Loretta Gandy conveyed the said premises to George E. Sharp on August 9, 1S93, and that said Sharp assumed to pay her note and mortgage secured on the same, as a part of the purchase price of said premises. She admits further that George E. Sharp conveyed said premises, by quit-claim deed, to FT. Douglas Ricks, on February 8, 1897, but she denies that said FT. Douglas Ricks was acting as the agent of this defendant; denies that he was authorized by her to transact business generally for her, and denies that he was authorized to accept conveyances of property mortgaged to her in satisfaction of such mortgages to discharge same. P>ut she avers that the authority of said FT. Douglas Ricks as her agent, was in writing in the form of a power of attorney made and acknowledged by this defendant on August 21, 1889, and is recorded in the recorder’s office of said county, in Yol. 75 of deed records, on page 26; which was the only authority and agency of said FT. Douglas Ricks for this defendant, and by that authority said FT. Douglas Ricks was authorized in the name, place and stead of this defendant to sign checks, receipts or other instruments in writing for the carrying on of the business of this defendant, and to enter satisfaction of any or all mortgages of record or by release deed then due or to become due in this State.

This defendant denies that by virtue of said power of attorney, said FT. Douglas Ricks had authority to receive a conveyance of real estate upon which this defendant had a mortgage or other lien to either himself or this defendant in satisfaction thereof; and denies that she ever gave him any authority to receive a conveyance to himself or to this defendant of the property in question in satisfaction of the mortgage indebtedness due her upon the same, or that she, with knowledge of such conveyance, at any time ratified or accepted the same in satisfaction of such indebtedness.

And this defendant denies that the complainant in the cross-bill is entitled to the relief therein prayed, in so far as it affects her, or to any relief against her.

Mary Ricks, Fannie Ricks, Rewell S. Ricks, Raul O. Smith, Lillie Smith and Mary Ricks, executrix of the will of R. Douglas Ricks, deceased, defendants to the cross-bill of George E. Sharp in this cause, answered that they almit that Rathaniel Gandy and wife made, executed and acknowledged the mortgage in the cross-bill mentioned, to their co-defendant, Lydia J. Coleman, on said premises, and afterward conveyed said premises' to said George E. Sharp, and that said Sharp assumed the payment of said indebtedness as a part of such purchase, and afterward, on February 8, 1897, said Sharp conveyed, by quit-claim deed of that date, said premises to 1ST. Douglas Kicks, but they deny that said Ricks was acting as the agent of Lydia J. Coleman, and state that he received said conveyance to himself and held the title to it subject to the lien of said mortgage, as he lawfully might do.

These defendants admit that after receiving such conveyances, they collected the rents from the said premises, paid the taxes and made necessary improvements upon same, and state that the amount of rents received up to and including November 10,1893, was $180, but these defendants deny that the complainant, George E. Sharp, is entitled to have any account of these rents as the same passed to these defendants, the heirs, devisees, executrix and widow of said N. Douglas Kicks; and they deny that said George E. Sharp is entitled to the relief prayed for in his cross-bill in this case or to any relief.

Ralph D. Ricks, by his guardian ad litem, presented the formal answer where persons are under disability.

The original bill was taken pro eonfesso as to the personal representatives of N. Douglas Ricks and as to Andrew Fleshner, and the bill and cross-bill, with the answers thereto, being at issue, the case was heard on the pleadings and testimony heard in open court, and the court found that the allegation in the original bill contained are true as therein stated, and the court, having jurisdiction of the parties and of the subject-matter, finds the equities of this case are with the complainant in the original bill; that the conveyance to said N. Douglas Ricks from George E. Sharp should be canceled and set aside; and that the heirs and legal representatives of said N. Douglas Kicks should account for the rents received by him from February 8, 1897, to January 27, 1899.

And the said Mary Kicks, executrix of the last will of said N. Douglas Ricks, deceased, thereupon accounted and showed to the court that said N. Douglas Kicks, and his legal representatives, had collected rents from said mortgaged premises to the amount of $189.85; that he and they paid for taxes during that time and for necessary repairs upon said premises, the sum of $68.07, and that there remains of said rents, after paying such "taxes and repairs, the sum of $121.78, which sum the court orders shall be credited and applied upon the said mortgaged indebtedness.

The court, therefore, orders that said Mary Kicks, executrix of the will of N. Douglas Kicks, pay to said George E. Sharp the said sum of $121.70, in due course of administration of said estate. And the court further finds that there is now due from said George E. Sharp to the complainant Lydia J. Coleman, for principal and interest on said note and mortgage, the sum of $1,804.42, and the further sum of $75 for complainant’s solicitor fee, and decrees that the defendants in the original bill, Nathaniel Gandy, Loretta F. Gandy and George E. Sharp, pay to the complainant Lydia J. Coleman, within twenty days from this date, the sum of $1,879.42, with lawful interest to be computed thereon from the date of the decree until paid; and also the costs of this suit to be taxed by the clerk of this court.

And it is further ordered and decreed that the deed from George E. Sharp to N. Douglas Kicks, dated February 8, 1897, conveying the said premises, be and the same is hereby ordered to be canceled, set aside, and the title to said property vested in said George E. Sharp; and that in default of such payment being made by Nathaniel Gandy, Loretta Gandy and George E. Sharp, then and in that case, the above described mortgaged premises be sold by the master, etc., to pay same, etc., being the usual form of decree of sale in such cases, with order for judgment against Nathaniel Gandy, Loretta F. Gandy and George E. Sharp for any deficit, etc., etc.

Plaintiffs in error have assigned, on the transcript of the record filed by them in this court, the following errors:

“First. The court erred in rendering a decree setting aside the deed from George E. Sharp to Newell Douglas Eicks.
“Second. The court erred in rendering a decree that the rents and profits paid in by Mary Eicks, executrix, etc., should be paid to George E. Sharp.
“Third. The court erred in rendering a decree that the rents and profits, to be paid in by said Mary Eicks, should be applied upon the mortgage indebtedness, and then afterward in the same decree ordering that the same should be paid to said George E. Sharp.
“ Fourth. The decree is not supported by and does not follow the pleadings.
“Fifth. The decree is conflicting in its terms, and impossible of execution without conflicting with the interests of some of the parties to the suit.
“ Sixth. The decree is conflicting in its terms, and so uncertain in its meaning that it is absolutely void.”

The original bill in this case, as well as the answer thereto of the plaintiffs in error, conclusively shows that they had parted with all the title they had in the mortgaged premises in question to George E. Sharp before this case was commenced, and therefore have no interest whatever in that part of the decree in this case which sets aside the deed which Sharp made to Newell Douglas Eicks, and so far as plaintiffs in error are concerned that part of the decree is harmless, and their first assignment of error on the record will not be further considered for that reason.

The record also discloses that George E. Sharp, after he acquired the title to the premises in question from the plaintiffs in error, made a conveyance thereof to said Newell Douglas Eicks long before this suit was commenced, and what the court by its decree ordered done with the rents which accrued and were collected from said premises before this foreclosure suit was commenced and after the defendants had parted with their title thereto, can not be a matter of any concern to the plaintiffs in error whatsoever, and therefore the second and third assignments of error will not be further considered for that reason.

The decree is perfectly regular in this case, and free of any conflict in its terms in so far as it finds that plaintiffs in error gave the defendant in error Lydia J. Coleman, the note and mortgage in question in this case, securing the $1,400, which the former borrowed from the latter and upon which it is conceded' by all the parties there was due when the decree was entered, to Lydia J. Coleman from the plaintiffs in error, the amount found by the decree, and the court having decreed that the premises which the plaintiffs in error had mortgaged to her should be sold in the usual manner in foreclosure of mortgage proceedings to satisfy and pay that amount, we fail to find wherein the plaintiffs in error ought to complain of the decree, even if it is uncertain and conflicting in other of its terms concerning the rents which accrued upon the mortgaged premises long after they had parted with all their title in the same, and especially where it appears that such rents were collected by a stranger in interest to them for aught the record discloses.

Such errors committed by the court in its decree which worked no prejudice to plaintiffs in error ought not to affect a reversal of the decree at their instance.

The decree of the Circuit Court being free from error prejudicial to plaintiffs in error, it will be affirmed.


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    Chicago, C., C. & St. L. Ry. Co. and Peoria & Eastern Ry. Co. v. Alexander Johnson.
    1. Jury — Duty of, Where There is a Sharp Conflict of Evidence.— "Where there is a sharp conflict in the evidence it is the peculiar province of the jury to determine where the truth is, and the Appellate Court will not disturb its finding, unless the record shows the rulings of the trial court on the evidence and instructions, of which complaint is made, have improperly contributed to such finding.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    A. E. De Mange and J. E. Hoffman, attorneys for appellants; John T. Dye, of counsel.

      Barry, Morrissey & Fifer, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action on the case by appellee against appellants, which was tried by jury in the Circuit Court of McLean County, and resulted in a verdict and judgment in favor of appellee for $300 damages, which he sustained for personal injuries inflicted upon him by reason of the negligence of appellants.

Appellants bring the case to this court by appeal, and urge the reversal of judgment, because they claim the verdict was against the evidence, and the court erred, to their prejudice, in its rulings upon the evidence and instructions, and in overruling their motion for a new trial.

The evidence discloses that appellee was engaged in hauling debris in a two-horse wagon from the ruins of the court house that burned in Bloomington, Illinois, to a cemetery, just outside the city, and in taking it from the court house site to the cemetery he had to go south along Main street and over the tracks of appellants’ railroad, where they cross it in the city. On the morning of October 9, 1900, when appellee was taking his fourth load that morning, upon arriving at that crossing he found it obstructed by one of appellants’ trains, so he could not cross, and he, and others, waited there some five or six minutes, when appellants’ flagman there, signaled for the trainmen to open the crossing, which they did by cutting the train in two and pulling the part which was on it to the east side of the street. Appellee, and those waiting with him, then started over, and as his wagon was on the tracks, the part of the train on the east side of the street was pushed by the engine eastward over the crossing, and the west end of it struck his wagon and knocked him off it onto the ground, breaking two of his ribs, puncturing his lungs and otherwise injuring him.

Appellee testified that the flagman gave a signal for those waiting to go over the crossing as soon as the train moved off it, and that they (he among them) started over because of the signal. The flagman, however, denies that he gave such signal, and testified that he told them not to cross, and did all in his power to prevent them from so doing. Both are corroborated by several witnesses.

The testimony of appellee and his witnesses, if.they told the truth, abundantly warranted the jury in finding as they did, while that of witnesses for appellants, if they told the truth, would have fully warranted a finding the other way; and in this sharp conflict in the evidence, it was the peculiar province of the jury to determine what the truth was, and we ought not to disturb their finding, unless the record shows the rulings of the court on the evidence-and instructions, of which counsel for appellants complain, have improperly contributed to such finding. We have carefully examined the evidence in this case to ascertain whether such rulings were open to the objections urged against them, and find that they were fair and free from error, so that the court properly overruled the motion for a new trial, and its judgment on the verdict will be affirmed.


author: Mr. Presiding Justice Harker

text:
    George W. Caruthers, Adm’r, etc., v. Walter L. Caruthers et al.
    1. Administration of Estates — Duties of an Administrator. — The law imposes upon an administrator the exercise of reasonable diligence in collecting claims due the estate he represents, and the duty of reporting the money as collected to the court, so that it may be applied in discharge of the demands of creditors and distributees.
    2. Administrators — No Authority to Loan the Money, of the Estate— Devastavit. — An administrator has no authority, without an order of court, to loan the money of the estate he represents, and if he does so, he will be accountable to the heirs for any loss in consequence. Such a loaning amounts, in law, to a devastavit.

    3. Same — Depositing in Insolvent Banks — Evidence of Loaning Money of the Estate. — Where an administrator deposits the funds of the estate lie represents in a bank, and receives a certificate payable to his order at a specified time after its date, with interest, such a deposit is evidence of a loan, by him, of such funds, and if the bank subsequently becomes insolvent, he will be responsible for any loss resulting therefrom.
    4. Same — When Not Responsible for Bank Failures. — Where an administrator acting in good faith makes a deposit in a bank of funds belonging to the estate he represents, from necessity or convenience, for a reasonable time, awaiting an order for distribution, a failure of the bank should not cast the loss of the deposit upon him.
    Administration of Estates. — Appeal from the Circuit Court of Morgan County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Smith & Hairgrove, attorneys for appellant.
    Etter & Hamilton, attorneys for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellant, as administrator of the estate of Elizabeth J. Caruthers, received an interest-bearing certificate of deposit of the Bank of Waverly, at Waverly, Illinois, which had been issued to the deceased in her lifetime, for §2,780. When the certificate matured, appellant, as administrator, collected §280 and the accrued interest, surrendered it to the bank and received another interest-bearing certificate for §2,500. When the last mentioned certificate matured, appellant collected the interest and received in its stead a third certificate for §2,500, bearing interest and dated April 26, 1898. On August 11. 1898, the bank failed and ceased to do business, and the last named certificate has remained unpaid. To a report of appellant rendered to the County Court, in which he sought to have the estate and not himself, charged with the loss of the certificate, appellees filed exceptions insisting that he should account for the §2,500 and that it should be distributed to them as heirs. From an order of the County Court sustaining the exceptions, an appeal was prosecuted to the Circuit Court, where judgment was rendered, finding that the deposit of §2,500 evidenced by the last named certificate, amounted to a devastavit by appellant, and ordering him to account for the same as cash, etc.

It is contended by appellant that he merely allowed the $2,500 in question to remain in the bank as deposited, at the time he took upon himself the administration of the estate, and that because it was considered that the bank was a reasonably safe place to deposit money up to the time it closed its doors, he should not be held liable for the loss.

There is nothing contained in the stipulation of facts or record to show that appellant did not have ample time and opportunity to collect the money and report it to the court before the bank failed. There is nothing to show that he ever made any effort to collect any more than the interest and $280 before the bank ceased to do business. Upon the contrary, he elected to surrender the certificate which was issued to his intestate and re-invest $2,500 of it without the sanction or knowledge of the court in which the estate was being administered. The law imposes upon an administrator the exercise of all reasonable diligence in collecting claims due the estate, and money thus collected should be reported to the court, so that it may be applied in discharge of demands of creditors and distributees. Under the law he has no authority to loan the money; and if he does so, he must be held accountable to the heirs for any loss in consequence of such loaning. Such loaning amounts to a devastavit. Wadsworth v. Connell et al., 104 Ill. 369. A bank certificate of deposit, payable to the order of the depositor at a specified time after its date, with interest at a specified rate for the time, is evidence of a loan the same in law and in fact as a promissory note. Peru v. Farnsworth, 18 Ill. 563; Telford v. Patton, 144 Ill. 611.

Of course, where an administrator, acting in good faith, makes a bank deposit of estate money from necessity or convenience, for a reasonable time, awaiting an order of the court for distribution, a failure of the bank should not cast the loss of the money upon him. We do not look upon this transaction in that light, however. We regard it in the nature of an investment of the funds of the estate, and being unauthorized, appellant became liable for the loss. Our views are supported by the case of Catherine C. Rucker, Adm’x, etc., v. Nancy O. Redmon, 67 Ill. 187. Order of the Circuit Court affirmed.


text:
    Cleveland, C., C. & St. L. Ry. Co. v. Mary Hibsman, Adm’x, etc.
    1. Railroads — Who Is a Trespasser. — A person using the rails of a railroad company for his own convenience to fashion a piece of wire into a “ chicken hook,” is a trespasser upon the right of way of the company. S'

    3. Same — A Person, While upon a Street Crossing, but Using the Company's Mail for His Own Convenience. — The mere fact that a person is partly upon a street crossing, while using the company’s rail for his own convenience, does not render him any the less a trespasser, for the crossing is only authorized to be used by the public for highway purposes.
    3. Same — No Duty to Keep a Lookout for Trespassers. — The employes of a railroad company are under no obligation to keep a lookout for trespassers upon the right of way and are not guilty of willful or wanton negligence as against such trespassers for failing to do so.
    Trespass on the Case. — Death from alleged negligence. Appeal from the Circuit Court of Edgar County; the Hon. Frank K. Dunn, Judge, presiding. Heal'd in this court at the May term, 1901.
    Reversed with a finding of facts.
    Opinion filed December 10, 1901.
    Geo. F. McNulty, attorney for appellant; C. S. Conger and R. L. McKinlay, of counsel.
    H. S. Tanner and Dundas & O’Hair, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This is an appeal to this court by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to obtain the reversal of a judgment rendered against it by the Circuit Court of Edgar County in favor of Mary Hibsman, as administratrix of the estate of her deceased husband, Henry Hibsman, for $1,000 damages, which had been rendered on the verdict of a jury,-in an action on the case in which she alleged in her declaration, such damages and more, had been occasioned to her and his six surviving children on account of his death having been caused by the willful and wanton negligence of the servants of defendant in managing defendant’s freight train in their charge, so that it struck, ran over, and killed him.

The record shows that defendant moved the trial court for a new trial on the grounds, among others, that the verdict was contrary to the evidence, and that the court improperly refused to give the jury the written instruction to find for defendant, which its counsel requested at the close of plaintiff’s evidence, and again at the close of all the evidence, but which was overruled, and defendant preserved an exception.

The facts in this case, as shown by the evidence in the bill of exceptions, are that Henry Hibsman was employed in a poultry house which abuts on the north side of defendant’s right of way in the village of Kansas, in Edgar county, Illinois, near to where four of its tracks, running east and west, cross Second street, which runs north and south. Third street in said village, runs parallel with Second street, and is about two hundred feet west of it.

South of the poultry house a short distance is a switch track; south of that ten feet, nine inches, is the main track; south of it, seven feet, nine inches, is a passing track; and south of that fourteen feet and seven inches, is a switch track. On the afternoon of the day upon which Henry Hibsman was killed, he was at work in the poultry house, and desiring to use a “ chicken hook ” and being unable to find one, he picked up a piece of wire and a hatchet and went out of the south door onto defendant’s right of way, walked south over the north switch track and to the north rail of the passing track, kneeled down onto a protruding railroad tie at a point where a part of his body was onto Second street crossing and the other part on the private right of way, and using the rail for an anvil, undertook to make a “chicken hook” out of the piece of wire with the hatchet.

The local freight train of defendant, consisting of twelve cars and an engine, which was bound westward as soon as the west bound fast limited passenger train of defendant, then about due, had passed on the main track, was occupying the passing track, but was cut into three sections so as to leave the crossings at Second and Third streets open, the engine and some of the cars constituting the west section, being west of the crossing on Third street; the middle section being between the crossing on Third street and the crossing on Second street; and the east section being east ofthe crossing on Second street.

The east end of the east car of the middle section stood about six or seven feet west of where Henry Hibsman was making the “ chicken hook.” The rear brakeman of the freight train was stationed on the crossing on Second street, about forty or fifty feet south of him, for the purpose of warning persons desiring to pass over it of the passenger train then due and which soon passed. This brakeman observed Henry Hibsman when he was in the act of kneeling, but his attention just then being called to the approaching passenger train, he did not notice what Hibsman was doing after that. While the passenger train was running past, the conductor of the freight train, having received a signal from the forward brakeman of his train that the crossing on Third street was clear, gave the engineer a signal to couple up. the freight train, which he at once proceeded to do by backing the west section up against the middle section at the rate of about two miles an hour, which caused the east end of the middle section to strike, run over and kill Hibsman who was still making his “chicken hook,” notwithstanding he was warned by a boy who stood near him that the passenger train was coming, and to look out because the freight train was being coupled up. The rear brakeman of the freight train could not see Hibsman while the passenger train was passing between them, and supposed he had moved away out of danger; but as soon as the passenger train had gone past the crossing, he saw Hibsman was being run over, and at once gave the engineer of the freight train the emergency signal, and the train was stopped as soon as possible, but the east car of the middle section had run over Hibsman and so badly injured him that he died a short time thereafter. When the stop was made, the east end of the middle section stood about in the middle of Second street crossing, having moved about thirty-five or thirty-six feet from where it had stood when Hibsman commenced making the “chicken hook.” The rear brakeman was the only one of those in charge of the freight train who saw or knew Hibsman was where he was when killed. There was a conflict in the evidence as to whether the bell was rung before the engine started to back up, or that it was ringing while the engine was backing.

In support of the judgment, counsel for appellee, while conceding that the deceased was not in the exercise of ordinary care in being where he was when killed, yet they earnestly contend that the conductor and engineer were guilty of wanton and willful negligence in backing the front section against the middle section before the rear brakeman had given a signal that the crossing on Second street was clear, and that the weight of evidence shows that the bell was not rung as required by statute before the engine started to back up; while counsel for appellant insist that the deceased was clearly a trespasser from the time he entered appellant’s right of way from the south door of the poultry house until he was killed, because he was not there for the purpose of business connected with the railway company, but" for his own private convenience, to use the track as an anvil in making a “ chicken hook,” and that it matters not whether he was on appellant’s private right of way or where it is crossed by Second street, as he was not there for the purpose of using the crossing as a highway, but was actually using it for his own private purposes, and.therefore assumed all the danger incident to the use of the track by the railway company that is usual at any other place on its right of way; and that being a trespasser, appellant owed him no duty except that its servants, in managing its train, should not willfully or- wantonly injure him.

And they further insist, that because the conductor and engineer did not know that the deceased was at the place where he was killed, that they were not guilty of willful or wanton negligence in causing the engine to back up to couple the train without a signal from the rear brakeman, ór by starting to back up the first section before ringing the bell as required by statute, because those duties are required for the protection of persons using the crossing as a highway, and not for trespassers.

Because the deceased was using the rail of appellant’s track for his own convenience to fashion a piece of wire into a “chicken hook,” we have no hesitancy in concluding that he was a trespasser; for the right of way was the property of the railway company, upon which no unauthorized person had a right to be for any purpose. Illinois Central R. R. Co. v. O’Connor, 189 Ill. 559; Wabash R. R. Co. v. Jones, 163 Ill. 167; Blanchard v. Lake Shore and Michigan Southern Ry. Co., 126 Ill. 416; and Robards v. Wabash Ry. Co., 84 Ill. App. 477.

The mere fact that he was partly upon the street crossing while so using the rail, does not render him any the less a trespasser, for such crossing is only ,authorized to be used by the public for highway, purposes/and the evidence is cdnclusive_that he was not using it for any purpose other than his own convenience. ~~~ *

~ The'deceased being a trespasser, neither the conductor nor the engineer had to anticipate that he was upon the right of way, and the evidence shows that neither of them did know that he was there before he was struck, so that they were not guilty of willful or wanton negligence as against him when they caused the engine to back up the east section of the train at the rate of two miles an hour, to couple it onto the middle section, without first ringing the bell and obtaining a signal from the rear brakeman that the crossing over Second street was clear; both of those precautions were intended to be taken for the protection of the public in using the crossing as a highway and not for the benefit of trespassers on the right of way. The O’Connor case, supra; Blanchard case, supra, and Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510.

The rear brakeman was warranted in believing that the deceased would not long remain where the brakeman saw him first, kneeling down by the rail of the passing track, and therefore was not guilty of willful or wanton negligence in failing to signal the conductor or engineer not to back up and couple the sections together until after the passenger train, which obstructed the view of the deceased from the brakeman, had gone past; but the brakeman very promptly did signal the engineer to stop as soon as the passenger train was past and he saw the peril the deceased was in, and the engineer soon thereafter succeeded in stopping his train.

As it appeared by the evidence that appellee’s intestate was not exercising ordinary care for his own safety when killed by the train of appellant and that he was at the time a trespasser upon appellant’s right of way, and that the servants of appellant in charge of said train were not guilty of any willful or wanton negligence which caused said train to kill him, the Circuit Court should have given the jury the peremptory instruction to find for the defendant as requested bjr its counsel, and committed reversible error by refusing it, for which we will reverse the judgment, with directions to the clerk to incorporate in the judgment of this court, “ that Henry Hibsman was a trespasser upon the right of way of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, when he was killed by a car of one of its trains striking and running over him; that the servants of said railway company in charge of said train, were not, at the time, guilty of willful or wanton negligence in managing same; and that appellant is not guilty as charged in the declaration.”

Reversed, with finding of facts.


text:
    Piatt County v. Republican Printing Co.
    1. Counties • — Liability for Supplies Furnished to County Officers.— Where the county board appoints one of its members as its agent for the purpose of providing suitable books and stationery for its use, and also for the use of the county officers, and the member so appointed as such agent is ready and willing to furnish the supplies, a party with notice of such appointment will not be permitted to furnish supplies and compel the board or county to pay for them.
    Assumpsit, for goods furnished county officers. Appeal from the Circuit Court of Piatt County; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed with a finding of facts.
    Opinion filed December 10, 1901.
    Charles F. Mansfield, State’s Attorney, for appellant.
    M. R. Davidson, attorney for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

The Republican Printing Company, of Monticello, Piatt county, Illinois, presented to the board of supervisors of that county for allowance against the county a claim for §112.50 for supplies which the printing company had furnished to the county clerk and school superintendent of the county for use in their respective offices. The board of supervisors refused to allow the claim, and the printing company appealed from its action to the Circuit Court, where the claim was tried by the court without a jury by agreement and resulted in a finding and judgment in favor of the printing company for §26.75. Both parties excepted to the finding and judgment and the county brings the claim to this court by appeal and assigns and urges for error, among others, that the finding and judgment are contrary to the law and evidence of the case. The printing company has assigned a cross-error by which it claims the court erred in finding and adjudging that it was only entitled to §26.75 when the evidence showed it was entitled to §112.50.

It is undisputed that the supplies furnished by the printing company to the county clerk and county school superintendent at their respective requests were reasonably worth $112.50, and were necessary, and had been used by them in discharging the duties of their respective offices; that the board of supervisors had, by resolution, regularly appointed one of its members as its agent to furnish all the supplies necessary for use by each of the county officers; that its agent was ready and willing to supply same upon the request of each of said officers, of all which each of said officers and the printing company had notice before the supplies in question were furnished; and that neither the agent nor the board of supervisors had notice that the supplies in question had been furnished or used until long after they were so furnished and used.

We are of opinion that the board of supervisors being intrusted by statute with the business affairs of the county, in the transaction of such business, may appoint an agent (McClaughry v. Supervisors of Hancock County, 46 Ill. 356) to provide suitable books and stationery for the use of the county board, county clerk, county treasurer, recorder, sheriff, coroner, superintendent of schools, and the clerks of the courts (Barnard Co. v. County of Sangamon, 190 Ill. 116), a.nd having appointed one of its members as its agent for that purpose, who was ready and willing to furnish such supplies, the printing company, with notice thereof, will not be permitted to furnish same to any or either of them, and compel the board to allow or the county to pay for same.

It follows that the finding and judgment of the Circuit Court of Piatt County are against the law and evidence and for that reason its judgment will be reversed, but the case will not be remanded for the reason that under the undisputed facts, the county is not liable to the printing company for the value of the supplies in question. And the clerk will incorporate in the judgment:

“ The court finds that the regularly appointed agent of the board of supervisors of the county of Piatt was ready and willing to furnish the supplie's necessary for use of all the county officers as provided by law, when the claimant, the Republican Printing Company, furnished the county clerk and school superintendent the supplies in question, and that the county of Piatt is not indebted to the claimant for anything on the claim presented.”

Reversed, with finding of facts.