author: Mr. Justice Shepard

text:
    Emma J. Glos v. Alexander Clark.
    1. Partition — Accounting for Taxes Paid by a Co-tenant in Possession. — Where the owners of land sustain to each other the relation of co-tenants and one of them in possession pays the taxes on the whole, and the one not in possession goes into equity to establish his rights, it is just and equitable that he should be compelled to account to the other for his proportion of the taxes paid on such lands.
    2. Estoppel — By Adjudications Under the Burnt Records Act. — In a proceeding by co-tenants under the burnt records act, where nothing but title is involved or adjudicated, the parties are not estopped in a subsequent proceeding in partition to'insist upon an accounting of rents and profits and for taxes paid upon the land in question.
    3. Interest — Tobe Allowed Only When Authorized by the Statute.— Interest is a creature of the statute, and is allowable only when authorized by it. Although it is allowable for money paid out or received for the use of another, and for a vexatious delay of payment when due, it is frequently disallowed when its payment, though due, is not vexatiously delayed.
    Bill for Partition and Cross-bill for an Accounting. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Statement. — The appellant filed her bill for the partition between herself and appellee of eight lots of land in certain additions to Evanston, in Cook county, alleging that she is the owner of the undivided five-eighths thereof, and Clark is owner of the other undivided three-eighths, and that their titles were established by a decree of the Circuit Court of Cook County rendered August 10, 1898, in a burnt record proceeding, affirmed by the Supreme Court. Clark v. Glos, 180 Ill. 556.
    The prayer of the bill is simply for partition of the premises.
    Clark answered the bill, and filed a cross-bill, in which he set out, in detail, his claimed equities, including his right to an accounting from Mrs. Glos, because of the payment by him of certain taxes and assessments, and the placing of some improvements on one of the lots that was isolated from the other seven.
    The prayer of the cross-bill is for an accounting, accompanied by an offer by Clark to allow for rents received by him.
    Mrs. Glos’ answer to this cross-bill sets up that all moneys paid by Clark for taxes, assessments and improvements of any character were paid under a claim of exclusive ownership of the whole premises and while holding adversely to Mrs. Glos and denying her title; that such payments were not made with her knowledge or consent, and were purely voluntary on his part, made of his own wrong for the purpose of acquiring a limitation title; that Clark took possession as a mere interloper and never acknowledged that Mrs. Glos had any right whatever in the land until after the final decision in the Supreme Court at the October, 1899, term. That he has received all rents and profits since 1890, and that the same are an equitable equivalent and set off for said outlays made by Clark.
    The answer also sets up the burnt records decree as a final adjudication of the rights of the parties in the land or growing out of it prior to that date and as to all improvements on the same, and that under said decree Clark’s interest consists merely of an undivided three-eighths of said premises a,s they stood on the date of said decree, August 10, 1898.
    The decree found the facts substantially as testified to by Mr. Clark, and is as follows, omitting formal parts:
    “ 2. That the complainant, Emma J. Glos, at the time of the filing of said bill was seized in fee simple absolute of an undivided five-eighths (|-) of lots one (1), two (2), three (3), fifteen (15), sixteen (16), seventeen (17), and eighteen (18), in block five (5) of Merrill Ladd’s addition to Evanston and of lot fourteen (14), in block one (1), Iglehart’s addition to Evanston, in said Cook county; and that Alexander Clark, one of the defendants in said bill and the cross-complainant in the cross-bill, was at that time seized in fee simple absolute of the remaining undivided three-eighths (!) of said premises, as tenant in common with the said Emma J. Glos; that the titles of said respective parties in the premises aforesaid were established and confirmed by a decree of the Circuit Court of Cook County, Illinois, rendered August 10, 1898, at the July term, 1898, of said court, in a proceeding brought in said court by the said Emma J. Glos to confirm and establish her title to said premises under the provisions of the statute of this State, commonly known as the burnt record act, being an act entitled ‘An act to remedy the evils consequent upon the destruction of any public record by fire or otherwise,’ approved and in force April 9, 1872, in which proceeding the said Clark filed his cross-petition, praying that his title to said premises might be established and confirmed, and that on a full hearing of said cause the said court by its said decree confirmed and established in the said Emma J. Glos and said Clark the title in fee simple absolute, as aforesaid; that the said Clark prayed and perfected an appeal from the said decree to the Supreme Court of Illinois, and that said court on a consideration of said cause affirmed said decree at the June term, 1899, of said court, and that a certified copy of said order of affirmance has been duly filed in the office of the clerk of said Circuit Court, and that said decree is now in full force and effect.
    3. And the court further finds that the said lot fourteen (14) of block one (1) of Iglehart’s addition to Evanston, is now in the actual possession of one Edward Anderson, who holds under a lease executed by said Clark, and that the said Anderson has gone into possession under said Clark since the entry of said decree by the Circuit Court, as aforesaid, and that he holds the same subject to the effect of said decree; that the foregoing real estate is the only real estate held in common by the said Emma J. Glos and said Alexander Clark, and that no other parties than the said Emma ,1. Glos and said Alexander Clark have any title in or to the said described premises, or any part thereof, in possession, remainder, reversion or otherwise.
    4. And the court further finds that the said Alexander Clark and said Emma J. Glos are both desirous that a division and partition of said described premises should be made between them, according to their respective rights and interests therein, and that in case the same can not be divided among the owners thereof without manifest injury or prejudice to the parties interested therein, that the same may be sold and the proceeds thereof divided among such parties, according to their respective rights and interests, but that the said Clark and said Emma J. Glos are unable to agree among themselves as to said division of said property.
    5. And the court further finds that on or about the 7th day of November, 1874, a judgment was entered against saíd Ladd; that while said judgment was pending and unsatisfied, on February 13, 1875, said Ladd and his wife conveyed by warranty deed said property to one Paul Thurlow; that on June 26,1879, a sheriff’s deed was issued to Charles B. Hosmer, of said premises, under a sale of the same under an execution issued on said judgment, and that said Charles B. Hosmer, on March 1, 1888, by quit-claim deed, conveyed an undivided one-half of the interest so acquired in said premises to his son, Edward D. Hosmer; that on August 27, 1890, Paul Thurlow and his wife conveyed all of their interest in said premises to said Alexander Clark; that on January 3, 1891, said Charles B. Hosmer died testate, and his will .was probated in the Probate Court of Cook County, Illinois; that under said will he divided his estate into four (4) equal shares, one of which he gave to Arthur B. Hosmer; one share to Edward D. Hosmer as trustee for his daughters, with full power in the said Edward D. Hosmer, as such trustee, to sell and convey said interests; that in the inventory filed in the probate proceedings under said will an undivided one-half interest in the premises aforesaid was set out as the property of the said Charles D. Hosmer; that by virtue of said will and his former holdings, the said Edward D. Hosmer became vested in his own right in an undivided five-eighths interest in any title to said premises which was acquired by said Charles B. Hosmer by said sheriff’s deed; that on June 8,1891, said Edward D. Hosmer conveyed his individual five-eighths interest aforesaid to Emma j. Glos, the said complainant, for the consideration of two hundred and fifty dollars, ($250) and that at the time said sale was made the said premises were worth, with a good title thereto, free from all liens and incumbrances, the sum of not less than three thousand dollars ($3,000).
    6. The court further finds that in the fall of 1890 said Alexander Clark entered into negotiations with Edward D. Hosmer as the owner of an undivided one-half of an interest in said property, and the agent for the other undivided half owned by his father, which interests were acquired under the execution sale aforesaid, in regard to the purchase of such interests; that in pursuance of such negotiations the said Clark made investigation as to the said execution title held by the said Hosmers, and that through incorrect information the said Clark was led to believe that the said execution title was without force and effect, and void; that the said Clark, relying upon such incorrect information and believing that the said execution title was of no force, acquired the title of Paul Thurlow to said premises aforesaid, and took possession of the said premises, which were then vacant and unoccupied, under said title from said Thurlow; that shortly prior to November 3, 1890, the said Clark had an interview with the said Edward D. Hosmer, who was still the owner of an undivided one-half interest aforesaid, and also the agent of the other half, in which interview the said Clark reported to said Hosmer the result of his investigation as to said execution title, and informed the said Hosmer of his belief that said title was void; that said Hosmer then and there agreed with the said Clark that lie would have the said title investigated and also certain tax titles controlled by him, and inform said Clark as to what he and his father would take for a quitclaim deed of their interest in the property acquired through such execution sale and through such tax titles; that the said Hosmer then and there, representing himself and his father, agreed with the said Clark that it was a wise and proper thing for the said Clark to proceed to pay the taxes due upon said premises and protect the same from tax sales, and that said Clark, relying upon said acquaintance of said Hosmer and upon his investigation in regard to the execution title, and believing that the same was void, and that the deed from Thurlow to him conveyed to him a good title to said premises, with the acquiescence and consent of said Edward D. Hosmer, for himself and his father, paid up all taxes and assessments then due upon said premises, and continued to pay all taxes and assessments subsequently becoming due, and has paid all taxes and assessments levied upon the said premises since that date up to the present time, and has paid out for such taxes and assessments a sum of money in excess of two thousand dollars ($2,000); and that said Clark is entitled to be reimbursed by the said Emma J. Glos for five-eighths (§) of such expenditures for such taxes and assessments since June 8, 1891, (the date of the conveyance to her by Hosmer of five-eighths of the premises), except as to the portion paid by him by reason of the improvements on lot fourteen (14) aforesaid, and that all of such payments were made by said Clark while claiming the whole title adversely to said Emma J. Glos and prior to the denial of the petition for rehearing in the burnt record suit aforesaid, in the Supreme Court.
    7. And the court further finds that at the time said Clark acquired said conveyances from said Thurlow of said premises, the "improvements thereon were scant and meager; that since that time the premises have been improved with water and sewer in some of the streets abutting on the same, and water and sewer connections laid for some of the lots of said premises; that the street has been curbed and paved, and cement sidewalks built in front of some of said lots, and large assessments made for such improvements, and that all of said assessments have been paid by said Clark, and are part of the sum aforesaid; that no portion of said amount has ever been repaid to- said Clark by said Edward E Hosmer or Charles B.Hosmer,nor the said Emma J. Glos, or any person claiming title to said premises under them; that their interests in said premises have been greatly enhanced in value by such improvements and payments by said Clark; that neither the said Hosmers nor the said Emma J. Glos has ever made any objection to the payment of such taxes and assessments by said Clark, although each of them had'full knowledge that he was making such payments.
    . 8. And the court further finds, that at the time of the conveyance to said Clark by said Thurlow, as aforesaid, the said premises were being wasted by trespassers; the fences around the same were being torn down and carried away, and the black earth hauled away from the surface thereof, and the value of the premises being greatly depreciated thereby, and that said premises were receiving no care and attention from the said Edward D. or Charles B. Hosmer, or any other person claiming any title thereto; that said Clark, believing that the said conveyance from said Thur-low vested a good title to him in said premises, on account of the mistake of the said Clark as to the condition of the execution title aforesaid, took possession of said premises, and in order to protect the same from waste, moved a building upon said lot fourteen (14) of block one (1) in Iglehart’s addition, in the fall of 1890, and put a party in possession thereof, with instructions to protect said premises from trespassers; that he afterward leased the remaining seven lots of said premises for gardening purposes, and that the said Edward D. and Charles B. Hosmer had full knowledge of the taking possession of said premises by the said Clark, and the placing of the building upon said lot fourteen (14), and that no objections were ever made by them, or any of them, or by said Emma J. Glos, to such action on the part of said Clark, and that at the time'the said Emma J. Glos acquired said title under the quit-claim deed from said Edward I). Hosmer, aforesaid, she had notice that said Clark was in open possession of said premises, as aforesaid, and that he had located the said building upon said lot fourteen (14), as aforesaid, and had full knowledge of the same from Julv, 1892.
    9. And the court further finds that during the time the said Clark has been in possession of said premises he has leased all of the lots, except lot fourteen (14) aforesaid, for gardening purposes, and has received a small annual rental therefor, and that the said Emma J. Glos is in equity-entitled to her proportion of such rental from June 8,1891, but that after crediting her with such amount she would still owe the said Clark an amount largely in excess of the amount so found due to her from said Clark.
    10. The court further finds that said lot fourteen (14) of said premises is isolated from the remaining lots and that the value of said lot fourteen (14), exclusive of said improvements placed thereon by said Clark, is much less than three-eighths (f) of the value of all of the said lots, exclusive of such improvements, and that in any partition made of said premises between said Clark and said Emma J. Glos, or those claiming under her, the said lot fourteen (14) should be in equity set over to said Clark as a portion of his three-eighths (-§) interest in said premises, in case it shall be found that said premises are susceptible of division and partition; and that in' the event the said premises are not susceptible of division and it should be necessary to sell the same, and that on account of the improvements made by said Clark upon said lot fourteen (14) an increased price should be received for said premises, then the portion of such enhanced price on account of said improvements should be set over to said Clark, in addition to the three-eighths (fj of the value of all the premises, exclusive of such improvements, to which he would be entitled under such partition sale.
    11. And the court further finds that under the pleadings, proceedings and record in the burnt record proceedings, in the Circuit and Supreme Courts aforesaid, the said Alexander Clark is not barred from the relief prayed for by him in his cross-bill in this case, and that the decree entered in the Circuit Court of said proceedings, as aforesaid, is not a final adjudication of the rights and interests of said Clark and said Emma J. Glos as to the relief prayed for by said Clark herein.
    12. And the court further finds that said Emma J. Glos has never made any application to said Clark for the possession of her undivided five-eighths (§) interest in said premises.
    13. And the court further finds that said lot fourteen (14) of block one (1) of Iglehart’s addition aforesaid, at the time said Clark took possession of the same under the deed aforesaid from said Thurlow, was vacant and without any improvement thereon, and that all of the improvements now standing upon said lot fourteen (14) have been placed thereon by said Clark.
    14. And the court further finds that five-eighths (-§) of the net profits from the rentals received from said lot fourteen (14) by said Clark since June 8,1891, which are chargeable to the value of the lot without the improvements upon the same by said Clark, should be credited to Emma J. Glos; that is, she should receive credit for five-eighths (•§•) of that part of the net profits from rentals from said lot fourteen (14) since June 3, 1891, which bears the same ratio to the entire net profits from rentals from said lot fourteen (14), for the period aforesaid, as the value of said vacant lot bears to the value of said lot fourteen (14) with the improvements thereon, as said value may be ascertained by the commissioners hereinafter named.
    15. And the court father finds that the said Alexander Clark should pay three-eighths (§) of the cost of this proceeding, and the said Emma J. Glos should pay five-eighths (|-),and that any amounts found due upon a final accounting in this cause from either party in this proceeding shall be a lien upon their respective interests in favor of the other party thereto.
    16. It is therefore ordered, adjudged and decreed by the court that the complainant, Emma J. Glos, is entitled to five-eighths (f) of the premises, in fee simple, as aforesaid, and that said Alexander Clark, cross-complainant, is entitled to the remaining three-eighths (§) of said premises, in fee simple, and that a division and partition of said premises be made (naming the commissioners and their duties).
    17. It is further ordered, adjudged and decreed by the court, that this cause be referred to master in chancery of this court, George H. Stevens, to take an accounting between the parties hereto in regard to said premises ” (in accordance with the foregoing, and minutely specifying the method of accounting to be followed).
    The decree was not satisfactory to either litigant and has been brought up for review, on appeal by Mrs. Glos. Clark, also, has assigned cross-errors upon the record.
    Enoch J. Price, attorney for appellant.
    Alexander Clark, attorney pro se.

   Mr. Justice Shepard

delivered the opinion of the court.

The contention of Mrs. Glos that because Clark always, down to the decree of August 10, 1898, denied her right to any of the premises, and held possession and paid taxes adversely to her and in support of his own claim of title to the whole, he can not now require her to account with him, is not well founded.

It is only from the time she obtained the title to five-eighths of the property that the decree requires her to account. From that time she and Clark held to each other the relation of co-tenants. She knew that Clark was paying the taxes on the whole propert\q and, in a sense, acquiesced in his doing so. It is true that Clark was all the time in possession and denying her title, but when she went into equity and established her right to five-eighths of the property, it was only just and equitable that she should be compelled to account for five-eighths of the taxes that Clark had paid. Such payments served as much to her own protection as to his, and there was no error in requiring her to do what was equitable on her part. DeWalsh v. Braman, 160 Ill. 415; Ebelmesser v. Ebelmesser, 99 Ill. 541.

But Mrs. G-los further contends that the “ Burnt Kecords” decree of August 10, 1898, constitutes an adjudication of all of Clark’s rights; that he might have, and did in fact, set up in that proceeding his claim for reimbursement in the matters spoken of and was denied it.

The questions in that case seem to have been only those of title. Both parties claimed the entire land as their own, and denied the right of the other to any part of it. Nothing but title was involved or adjudicated, and although much of the same evidence was heard that was presented in this case, it was, as the Supreme Court there held, gone into merely for the purpose of showing the good faith acts of Clark in the support of his claim of title, and laches on the part of Mrs. Glos. As the Supreme Court said in its opinion in that case, the subject of rents and profits, etc., would be “ more properly before the court for consideration in a partition proceeding,” and accordingly held that no error was committed in not ordering an accounting in that suit. Clark v. Glos, 180 Ill. 556.

Coming now to Clark’s cross-errors, they may be epitomized, so far as they have been argued by him, and as stated by him in his brief, as follows:

“ That the decree should be modified so that he should receive five-eighths of all expenditures made by him in regard to the premises, and interest thereon, and that.the allowance to be made for Emma J. Glos should be simply five-eighths of a reasonable rental for lot fourteen (14) without any improvements, and that she should be allowed interest on "her share of all the rentals from the date of the receipt thereof by Clark.”

The expenditures for which he claims, but was not allowed, were made before either he or Mrs. Glos had any title, although he was in possession. Clark was, before he acquired his title to three-eighths of the property, which was after Mrs. Glos had acquired her five-eighths, a mere trespasser upon the property. Clark’s argument that because of some talk he had with the Hosmers about paying the taxes,’ Mrs. Glos became bound, when she bought of them, by his equities as between himself and the Hosmers, seems to us to be entirely fallacious.

It is a plain inference from the evidence that prior to the time when Mrs. Glos acquired her five-eighths of the property, everything in the way of taking possession of the premises and making disbursements on account thereof, by Clark, was done in defiance of the Hosmers’ interest and in . the belief by Clark that Thurlow’s apparent title vras good and that the Hosmers’was not. Giving to Clark the right to an accounting from Mrs. Glos from the date of acquisition of title to her was all, in that respect, that Clark can equitably ask for.

The claim of Clark that Mrs. Glos should be credited in the accounting, concerning lot 14, with only the reasonable rental of the lot exclusive of improvements, is not made to appear to be justifiable. The decree makes allowances in Clark’s favor with reference to the improvements on lot 14 which probably, as nearly as possible, even up all the particular equities growing out of that lot and improvements, and we are not disposed to disturb it. Exact justice is frequently more theoretical than practical, and where, considering the whole case, substantial justice has been accomplished, minor refinements must be disregarded.

It would seem that as to interest it might well have been allowed in favor of both parties, on taxes, etc., paid, and on rentals received.

It is said in the brief of appellee that the learned chancellor who entered the decree refused interest because of the authority of Snell v. Taylor, 182 Ill. 473.

Interest is a creature of the statute, and is allowable only when authorized by the statute. Although it is allowable for money paid out or received for the use of another, and for a vexatious delay of payment when due, it is frequently disallowed when its payment, though due, is not vexatiously delayed. The controversy in this case has not been so one-sided as to justify us in .holding that the delays on "either side have been so excessive as to warrant us in reversing the conclusion the learned chancellor reached. The decree seems on the whole to be a most equitable settlement of the controversy, and no substantial error in it having been pointed out by either party, our duty is to affirm it, which we accordingly do, at the costs of appellant. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    James Pease v. John Dawson.
    1. Sales — Made in Good Faith for a Sufficient Consideration.— A person purchased a saloon, and fixtures in good faith and paid a fair price for the same, most of which went in payment of executions then liens upon the property, took possession and carried on the business for a year, giving his personal attention to it, and remaining at the saloon a greater portion of the time. Held, in an action of replevin against a judgment creditor of the vendor, sufficient to give him a clear title.
    Replevin. — Appeal from the Circuit Court of Cook County; the Hon. Edwaud P. Vail. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    ' Statement. — This was a replevin suit brought by appellee against appellant in the Circuit Court of Cook County to recover possession of a certain stock of liquors, saloon and bar fixtures, which were levied upon by appellant, as sheriff of Cook county, to satisfy an execution issued out of the Circuit Court of said county upon a judgment obtained in said court against one John Early and Algernon S. Osgood, and in favor of Patrick H. Early, for the sum of $1,967.07.

      Appellee’s declaration, contained two counts. The first alleges that on or about the 8th day of December, 189G, appellant wrongfully took the goods and chattels of appellee and wrongfully detained the same, etc. The second alleged that defendant wrongfully detains the goods and chattels of the plaintiff , etc.
    The defendant filed five pleas: first, non cepit; second, non detinet; third, property in the defendant; fourth, that he took said goods and chattels under and by virtue of an execution issued out of the Circuit Court of Cook County on a judgment recovered therein by Patrick H. Early against John Early and Algernon S. Osgood for the sum of $1,967.07, and that the goods were the property of John Early and Algernon S. Osgood, and not the property of plaintiff, to which pleas the plaintiff filed his replication denying that the said John Early and Algernon S. Osgood were the owners of said property and alleged property in appellee. The issues were submitted to a jury, which found in favor of appellee and against appellant. Judgment was rendered upon the verdict.
    John Early and Algernon S. Osgood were partners in the saloon business in the city of Chicago from the spring of 1888, till the spring of 1895, at which time the said John Early, being involved, and having overdrawn his account $3,200, made a bill of sale of his interest in the business to one E. A. Dreifuss, who was then the bartender in said saloon and had no property. There was no consideration passed for the making of said bill of sale other than the assumption by Dreifuss of the liabilities of Early in the firm of Osgood & Early. Dreifuss continued to stay in the saloon, as bartender, for $25 per week, until the spring of 1897. Osgood told him he would not recognize him as a partner unless he paid Early’s overdraft of $3,200 and thereafter Osgood ran the saloon as his own.
    In the fall of 1896, Eariy & Osgood being indebted to the Schoenhofen Brewing Company, it obtained a judgment against the said John Early and Algernon S. Osgood for the sum of $2,549.71, and also a judgment against Algernon S. Osgood for the sum of $1,015.14, upon which judgments executions were issued and placed in the hands of the sheriff of Cook county and by him levied upon the 'saloon and fixtures in question. The saloon was permitted to run without being closed up. Some few days after the making of said levy, Osgood sent for his brother-in-law, who was a lawyer living in Joliet. He came to Chicago, and after consulting with Osgood and appellee, it was arranged that appellee should furnish the money to pay off these judgments and Osgood should sell the place to him and make him a bill of sale of the entire saloon stock and fixtures, which he did. Appellee gave to Osgood the sum of $4,000. The judgments of the Schoenhofen Brewing Company were satisfied and assigned over to appellee, the balance of the $4,000 being used to pay other saloon creditors. The sheriff then released his levy, and the saloon thereafter was run by appellee, Osgood remaining as manager at a salary of $40 per week. Dreifuss stayed there the same as he had done before. There was no change in the barkeepers, no change in the license, either government or city, no change in the lease; appellee endeavored to obtain a lease but could not. At the time the bill of sale was made from John Early to Ed Dreifuss, John Early and Algernon S. Osgood were then indebted to Patrick H. Early for the amount of money for which he afterward obtained judgment in the Circuit Court of Cook County against them, and upon which execution was issued and placed in the hands of the appellee, and under said execution he levied upon the stock of goods and fixtures in said saloon as the property of John Early and Algernon S. Osgood.
    At the close of the plaintiff’s evidence, defendant’s counsel moved to take the case away from the jury, which motion was overruled; and at the close of all the evidence the defendant renewed his motion with a like result.
    Harvey Strickler and D. McCaskill, attorneys for appellant.
    Bulkley, Gray & More, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

That appellee purchased the saloon and fixtures in good faith and paid a fair price, $4,000, for the same, most of which went in payment of executions then a lien upon the property and that every dollar was applied in satisfaction of saloon debts, is unquestioned. That appellee took possession and carried on the business for a year, giving personal attention to the business and remaining at the saloon the greater portion of the time, was clearly shown.

That any creditor was in any way deceived, or parted with anything under the belief that Osgood or Early had any interest in the property or business after the sale to appellee is not claimed.

The possession of appellee after his purchase was such that any one who inquired would have learned that he was the owner. True, there was no change of signs or name, the place continuing to be called the “ St. Cloud,” a name which did not indicate any particular person as the owner, and therefore one which there was no necessity for a change of. Mor did Early, after he made a bill of sale to Dreifuss, retain any interest in the saloon. Whether Dreifuss paid him anything, or did ought other than to assume the saloon liabilities of Early, is immaterial. All parties thereafter treated the place and property as that of Osgood, and he, to obtain money with which to discharge his and Early’s liabilities, sold to appellee.

The retention of Osgood, as an employe and the payment to him of a salary of $40 per week, were under and consistent with appellee’s ownership. Mo one was misled or injured thereby.

The possession and conduct of appellee were all that the law requires to indicate his purchase and ownership. Read v. Wilson, 22 Ill. 377; Bass v. Pease, 79 Ill. App. 308; McCord v. Gilbert, 64 Ill. App. 233; Gallick v. Bordeaux, 56 Pac. Rep. 961.

We find no error in the giving or refusing of instructions or in the admission or rejection of evidence warranting a reversal of the judgment of the court below and it is affirmed.


text:
    John Hass v. The Chicago, B. & Q. R. R. Co.
    1. Master and Servant — Reciprocal Duties. — A servant is bound to exercise ordinary care for his own safety and must notice dangers which are apparent, but he need not hunt for hidden perils. The master is bound to exercise reasonable care to provide reasonably safe appliances for the use of the servant and a reasonably safe place for the doing of his work.
    3. Same — Rights of the Servant in Obeying the Commands of the Master — Reciprocal Duties. — When a servant is commanded by one having the right to give him orders, to do an act obviously attended with danger, he has a right to assume that his master has exercised reasonable care to make the act reasonably safe, and that it is not attended with hidden perils of which the master had notice.
    3. Same — Duty of the Master to Watch for that Which is Not Necessarily Obvious and of the Servant Not to Overlook the Apparent. — The master should, to a reasonable extent, watch for and find that which is not necessarily obvious, while the servant can not overlook that which is apparent, and if ordered to do a particular thing the servant has a right to assume that he will not be unnecessarily exposed to perils, and may rely upon the implied assurance that there was no unnecessary danger.
    4. Same — Duty of the Master to Use Reasonable Diligence in Making the Place Where His Servant Works Reasonably Safe — Illustration.— Where a wrecking crew in the employ of a railroad company and in charge of a foreman, was engaged in placing a derailed locomotive upon the track, one of them called the attention of the foreman to the improper position of a timber used to support the locomotive, but he paid no attention to it, and ordered the man to return to his work, which he did and in consequence was injured, a verdict for the company was reversed.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — This action was brought by appellant to recover from appellee for injuries sustained by him while wmrking for appellee.
    Appellant had been working for appellee at Chicago, Illinois, for about three years and a half prior to the accident, as a member of a -wrecking crew, and doing work similar to that on which he was engaged at the time of the, accident.

      The accident happened September 12, 1894. On that morning he was called, with other members of the wrecking crew, to help replace an engine of appellee which was off the track. To do this a heavy timber about ten by ten was placed upon a cross-beam of the engine in front of the boiler. The timber and beam were fastened together by a chain, and jacks were placed under the end of the timber which was allowed to project some three or four feet beyond the side of the engine, and in this way the engine was gradually raised up. As soon as the engine was raised far enough- to permit it, planks were placed under the wheels.
    Appellant, as directed, was engaged in placing a plank under the wheels when the timber split at the end where the jacks were placed, and the engine fell back into its old position, appellant being .struck on the back and head, sustaining injuries for which the suit was brought. At the conclusion of the plaintiff’s case the court instructed the jury to find a verdict for the defendant. Upon the trial appellant testified as follows:
    “ I was working as a car repairer that day. I commenced work that day at seven o’clock at the round-house of the company at Archer avenue and Sixteenth street. At one o’clock we got an order to go to the wreck, given us by a man named Nelson. We went over to the engine which was off the track. It wTas about a block away from where we had been employed. Nelson was the boss or superintendent over the work. When we got to the place where the engine had fallen, he said, ‘ Now everybody has got to do his own work here..’ We then took this timber and laid it down, and one end we tied with a chain, and after that four jacks were put underneath and one side was raised up. The timber was put across the locomotive under the boiler.
    When we placed this timber upon this engine, on this insul, we left a piece of this timber out far enough so we could put the four jacks under, then we took a chain and fastened this timber, and then we raised it up so the whole-side hung on this timber. He told me that I should block the wheels. I took one plank and put it under one of the wheels, but when I took the second one it had already-slipped. Before the engine fell I spoke to the foreman1 about the wav the work was being done. I told him it was ‘ humbug; ’ that it would slip. He then said to me, 1 Go ahead and do your work.’ Nelson was the boss who Avas directing the Avork all the time up to the time of the accident. The foreman told every one what was to be done.
    Q. Now, what, if anything, Avas said after this timber Avas put under the projection and the jack screws were put under the timber, about the method of the Avork being dangerous? Give the whole conversation that you heard. A. The foreman said, ‘ Well you raise this up, so after you get it raised up Ave can pull it out.’
    " Q. Did any one say anything to him about danger, if so, Avhat Avas it ? A. I told him myself, the boss, because he put me in the worst place.
    Q. What did you say to the boss about danger? A. I told him that Avould slip; that Avon’t go.
    Q. What Avas said to the foreman there by you, or by any one else, that the tvork Avas dangerous the Avay the foreman ordered it ? A. After the engine had hung, the foreman said, ‘ Now you go, to Avork.’
    Q, What do you mean by the engine being hung? A. I mean the side that was down Ave raised it up, and the Avhole •side hung on this timber.
    Q. Did any one say anything to the foreman about the ■Avork being dangerous ? A. I told him myself.
    Q. What did the foreman say ? A. He- said I should •go to Avork.
    Q. What took place ? A. When I went to Avork I took one plank and laid that down, and then I took the ¡second one; Avhen I turned around the engine fell. I Avas ¡not touching the engine at the time it fell, I Avas getting a ¡plank that my partner fetched me. I Avas not touching the jack screAvs. The front of the engine was tOAvard the •east and the north side fell.
    Q. How did the engine come to fall ? A. Because the timber was not exactly lying upon this insul. It didn’t project very much.
    I mean that the beam or squared timber didn’t lie squarely on this insul.
    When the engine fell, some of the jacks fell on one side and some to the other. The timber split. This timber Ave got from the Avrecking car. When the timber is placed on the engine it projects three feet outside of the engine so Ave can put the jacks under; the timber is square, ten by ten, and it projects half Avay across the engine boiler — locomotive boiler. The timber split at that part Avhich rested oni(the insul or projection of the boiler. It is a part which is screwed to the boiler on the engine and projects a little in front of it. The timber was held in place by a chain; it tied or fastened the insul to the timber.
    The timber that I spoke of is marked in red on the picture. It split because it only laid half-way on the insul and it didn’t have strength.
    Q. When you told the foreman that the way of' doing things there was all ‘ humbug,’ what did you mean ? A. Well, I saw that the timber was resting on the insul, only half of it was, and I saw there would be some E humbug.’
    Mr. Dawes: I will assume, if you want to, that E humbug ’ means some danger.
    Mr. Maher: Very well.
    Mr. Maher; Did you say anything else to the foreman %

    A. Well, I didn’t"say anything else except that I said, that will not be' well, and we will have some 1 humbug ’ here, and he said, E Oh, well, just go to work.’ When the locomotive fell I got a blow on my back and on the left side of my head and back of my head. I was unconscious for over an hour. I was taken home to Seventeenth street and stayed there over a year.
    Q. When you told the foreman at the time of the accident that the timber was not .squarely on the insul, that there would be ‘ humbug,’ did you mean that an accident would happen and somebody would get hurt ? that is what you said, wasn’t it, and what you meant ?
    A. Yes, that is what I said to the foreman; I say—
    Q. What else were you going to say % I say this, that somebody would get hurt.
    Q. You could see that the timber might slip off the insul ? A. Yes.
    I was a member of the wrecking crew and I used to jack up engines and cars when they would be wrecked.”
    The court instructed the jury to find for the defendant.
    Edward Maher, attorney for appellant.
    Chester M. Dawes and Joseph A. Connell, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

A servant is bound to exercise ordinary care for his own safety; he must notice dangers which are apparent but he need not hunt for hidden perils.

The master is bound to exercise reasonable care to provide reasonably safe appliances for the use of his servant and a reasonably safe place for the doing of his work. The servant has a right to rely upon the discharge by the master of this duty.

When a servant is commanded, by one having a right to give him orders, to do an act obviously attended with danger, he has a right to believe that the master has exercised reasonable care to make the act reasonably safe, and that it is not attended with hidden perils of which the master has notice. So far as noticing danger is concerned, it is the duty of the master to with reasonable diligence look for it — that of the servant to see that which is obvious.

The master should, to a reasonable extent, watch for and find that not necessarily obvious, while the servant can not overlook the apparent.

If ordered to do a particular thing the servant has a right to assume that he will not be unnecessarily exposed to perils, and he may rely upon the implied assurance that there is no unnecessary danger. Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Illinois Steel Co. v. Schymanowski, 59 Ill. App. 32, 162 Ill. 447; Chicago Edison Co. v. Mary Moren, 86 Ill. App. 152; 185 Ill. 575.

In the present case there was evidence tending to show that the timber made use of was improperly placed by the superior of appellant and that as a consequence it split, letting the engine fall upon appellant, who was then doing what he had been directed.

The attention of the foreman had been called to the improper position of the timber, but he paid no attention to the warning and ordered appellant to the place where he was injured.

There was evidence tending to show a failure upon the part of appellee to use reasonable diligence to make the appliances with which and the place in which appellant worked reasonably safe, and that in consequence thereof he was injured.

The evidence did not present a case, merely, of an injury from a peril that could not, with reasonable care, have been ascertained, nor of one in which there was no evidence from which the jury could have found any such negligence as was charged in the declaration.

The judgment of the Superior Court is reversed and the cause remanded.


author: Mr. Presiding Justice Freeman

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    Peter McFarland v. Edmunds Manufacturing Co.
    1. Employee and Employe — Employer Not Required to Make a Building in the Process of Destruction Safe at All Times. — An employer does not undertake and is not required to make a building in process of destruction, safe at all times for workmen who are expressly employed to make it insecure by tearing it down, but it is nevertheless his duty to notify them of any latent defect or danger existing at the place where they are employed to work, which increases the ordinary risk of their employment.
    2. Same — Destruction of Buildings — Where the Danger Is Not Known to the Employe. — In the process of tearing down a building, if a defect or danger is not known to the employe, or so open and visible that by ordinary care it would be seen and known by him, as if, in tearing down a building the employer cuts away any supports which the employe has a right to expect are still firmly in place, it is his duty to notify or warn the employe, and in failing to do so he is liable for injuries received in consequence.
    3. Practice — Duty of the Court upon a Motion to Instruct the Jury to Find for the Defendant. — Upon a motion to instruct the jury to find for the defendant it is not the province of the court to weigh the evidence for the purpose of finding where the preponderance lies. It is only to determine whether there is or is not evidence legally tending to prove facts which, if established, might entitle the plaintiff to recover.
    Trespass oil the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Walsh & McArdle, attorneys for plaintiff in error.
    A. B. Melville and F. J. Ganty, attorneys for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an action to recover for personal injuries. The plaintiff was engaged with otliers in the work of making changes in or repairing the building of defendant in error.

It is stated by the attorneys of the latter, that the roof of the original building was flat, sloping from front to rear, supported by rafters. The repairs or alterations involved the addition of two stories. To uphold these, holes were cut in the old roof, every sixteen feet, and posts, ten by ten inches square, were put in extending through the roof and the plates below. At each post a rafter was cut to allow the posts to be placed in position. The cut rafters, sixteen feet apart, were held in position by the roof boards nailed to the rafters, including those not cut. The hole around the posts was covered by tarred pa per to keep the rain' or . snow out pending the construction of the new roof above the old one. It is said that these posts had been erected, and. the rafters cut, two months before plaintiff began work on the job. He had been at work there about two weeks before he was injured. At the time of the injury, the work had so far progressed that the old roof was in process of removal. -

The plaintiff had been working all the forenoon, ripping boards and tar paper from the rafters of the old roof and carrying them to the front of the building, apparently -walking on the bared rafters or joists in so doing. While so engaged in the afternoon of. that day, carrying away the old boards, he stepped on one of the cut rafters and fell some eighteen feet to the floor below. He testifies: “Up to the time I dropped, I did not know anything was the matter with the joists. They appeared to be all right.” He also states that “ no person at any time explained or told me anything about the condition of that part of the building.” It does appear, however, that the covering of the rafters haying been removed, they were exposed to observation. Whether the cut place was plainly apparent from where plaintiff had been working, the testimony does not disclose, though it would appear that in ripping off the old boards nailed to the cut rafters, their loosened condition ought to have been made manifest. There is also evidence by plaintiff on cross-examination as follows:

Q. Before you were injured there, had you ever done anything with those scantlings- that had been sawed off ? A. Yes, sir.

Q. Tied up some of them, hadn’t you ? A. Tied up, or helped to tie up one.

Q. That was where an upright post went through, wasn’t it ? A. Yes, sir.

Q. That had been sawed off — sawed off there where the upright post went through % A. I don’t know whether it was sawed off or not — loose.”

At the close of the plaintiff’s evidence, the court, at the request of the defendant, instructed the jury to find the defendant not guilty. The only question now is whether the evidence was sufficient to make it the duty of the court to submit the case to the jury. It is clear that, as has been held by this court in Clark v. Liston, 54 Ill. App. 578, Chicago Edison Co. v. Davis, 93 Ill. App. 284, and others, an employer does not undertake and is not required to make a building in process of destruction safe at all times for the workmen who are expressly employed to make it insecure by tearing it down. But it is nevertheless the master’s duty to notify the employed of any latent defect or danger existing at the place where he is employed to work, which increases the ordinary risk of his employment, if the defect or danger is not known to the servant, or so open and visible that by ordinary care it would be so seen and known. Even in tearing down a building, if the master has cut away supports which the servant has a right to expect are still firmly in place, it is the former’s duty to notify or warn the servant. P. P. C. v. Laack, 143 Ill. 242-254. The question in the present case is, therefore, whether the plaintiff in error knew, or by the use of ordinary care should have known, that one rafter in every sixteen feet had been cut. There is some evidence, above referred to, which may create a strong suspicion that he did know this. But' on the other hand, he expressly swears that he did not know anything about it. Upon a motion to instruct the jury to find for the defendant it is not the province of the court to weigh the evidence a,nd find out where the preponderance lies. That must be left to the jury. The court can only determine whether there is or is not evidence legally tending to prove facts which,if established, might entitle the plaintiff to recover. Frazer v. Howe, 106 Ill. 563-573; Pullman Palace Car Co. v. Laack, 143 Ill. 242-252; Roberts v. C. & G. T. Ry. Co., 78 Ill. App. 526-530. In the present case there is evidence which, if the jury believed it, would authorize a verdict. It was a question which the law requires should be submitted to them. This not having been done the judgment of the Circuit Court must be reversed and the cause remanded.


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    Anna B. O’Day v. Chicago & Alton R. R. Co.
    1. Railroad Companies — Duty Owed to Car-cleaners of Other Companies as Mere Licensees. — The duty owed by a railroad company to a person not in its employ, but engaged in cleaning the cars of another company left upon its track by permission for that purpose, is not to be reckless of the safety of such person.
    2. Ordinary Care — Defined.—The definition of ordinary or reasonable care is that care which prudent persons usually exercise, or, as applied to a particular case, is that care which a prudent person would exercise under like circumstances.
    3. Same — Degree of Care to be Exercised by Persons Working in Dangerous Places.— Persons who work in dangerous places are bound to exercise such care for their safety as the obvious dangers of the place require.
    4. Error — Not to be Assigned for Failing to do that Which the Court is Not Ashed to do. — The action of a court can not be assigned for error in failing to do that which it was not asked to do.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Anna B. 0’JDa.y, the plaintiff below and plaintiff in error here, entered into the employ of the Pullman Palace Car Company some four or five weeks prior to the date of the injury which she sustained on February 6, 1895, at about ten o’clock a. m. Her services during this period were not continuous, but she served from time to time in a substitute capacity, assisting in the cleaning of sleeping cars owned, by the car company and in use by various railroad companies. At first she was assigned to duty in the “yards” of the Santa Fe Railroad Company, and then, on the seventh day preceding her injury, to those of the Chicago & Alton Railroad Company.
    On the morning of the day and at about the hour mentioned, plaintiff in error had been engaged in cleaning one of the sleeping cars which were in use by the Chicago & Alton Railroad Company, on what was known as its “ St. Louis train.” This entire train, consisting of five, six or seven cars, according to the varying testimony of witnesses, on the morning in question had, in pursuance of the daily custom, been placed on a sidetrack in the “yards” of the Chicago & Alton Railroad Company for the purpose of being cleaned. These “ yards,” located at Harrison street and under what is commonly called “ the viaduct,” contain a series of ten or more parallel tracks, which are supplemented on the west by four additional ones which are known as the “ main tracks.” These yard tracks were used for the purpose of placing cars there to be cleaned, watered and repaired and otherwise put in condition for re-use by the Chicago & Alton Railroad Company. On the day in question these “yard tracks” were crowded with trains which lay so close, one to the other, that “ their roofs almost touched.” The plaintiff in error had just stepped from the inside of one of the sleepers on which she had been working to its platform, wLich was the second one from the north, and a distance of about two hundred and forty feet from the extreme platform at the south end of the train. On one arm she carried a basket of rags and carried with the hand of the other, a bucket of water; while she grasped with her hand the hand-rail of the car, the train was moved by a switch engine approaching from the south, and she was thrown and injured. The brief of plaintiff in error says:
    “ The theory of plaintiff in error upon which the claim of recovery is based is:

      First. That appellee owed to appellant the duty of a warning before it moved the train on which she was employed; if not by sending an employe, at least h)?- the ringing of a bell or the sounding of a whistle; and
    Second. That irrespective of the duty to warn, the moving of the train should ha.ve been accomplished without unnecessary jar, and that the contest below on the facts narrowed itself to the following issues:
    (1) Was the bell rung?
    (2) Was the train moved without a jerk or a jar ?
    (3) Was the plaintiff in error thrown or did she slip?
    (4) Was plaintiff in error guilty of contributory negligence ? ”
    W. Clyde Jones and Keene H. Addington, attorneys for plaintiff in error.
    Scofield & Brown, attorneys for defendant in error.
   Mr. Justice Waterman

delivered the opinion of the court.

The plaintiff, so far as appears, was at no time in the service of the defendant nor did the defendant have notice of her-presence in or about its yards.

The only information that the defendant had that cast upon it any duty with respect to her was that car cleaners at times worked in its yard cleaning Pullman cars there left for that purpose; it was not informed that she or any persons were in the train which it moved. Such being the case, she being, as regards the defendant, a licensee only, the duty it owed to her was not to be reckless of the safety of her as one of those who might, in the discharge of duty, be in or coming out of Pullman cars; to do what it did with due regard to the possibility that Pullman cars might be occupied by cleaners. Bolch v. Smith, 7 Hurl. & Norman, 736-743.

Whether such duty required the defendant before moving such cars to give notice by ringing a bell or sounding a whistle, or whether the defendant was required to move-the cars without “ jerk or jar ” would, in the absence of any evidence as to rule or custom known to her, seem to be questions of fact.

The cars were nofc on a track from which passengers were received or discharged, but on a side or storage track. The plaintiff was engaged in work manifestly hazardous, as is all work in a railroad yard, and she was bound to look out and use as much care and caution for her safety as the manifest hazards, uses and business of the place required.

Four witnesses testify that the bell was ringing as the engine approached the cars and made connection therewith. The plaintiff and one witness testify that they heard no bell. The plaintiff alone testifies that “ engine bumped train and threw her.” Jennie Wilcox testified that she “heard the engine come and bump the train and knew it had moved.” No one, save the plaintiff, and Louis Hartweg, saw the accident. He declares that the bell wras ringing and says: “ Saw her when she fell; train was moving south; the train started to move very slow.”

The plaintiff testified that she “ stepped on platform; had a pail of water and a basket on my arm; took hold of railing with my hand; engine bumped train; threw me and struck back on steps.” It appears to have been snowing at the time of the accident. That there is usually a shock or jar when an engine connects with a train is well known; whether the “ bump ” in this case was more than is usual or more than was reasonably avoidable was not shown: In what way the failure to ring a bell, if such failure there were, contributed to the accident was not shown. The plaintiff’s witness, Jennie Wilcox, cleaning cars with the " plaintiff, does not speak of the “ bump ” as anything severe, unusual, or avoidable. But the plaintiff does say that the “ bump ” threw her on her back.

The rules of the Alton railroad, for which the plaintiff was not working and of which she had not been informed, shodld not have been admitted in evidence. Nor should the thirteenth instruction have been given at the instance of the defendant. Hpon certain persons, as common carriers, the law imposes the highest degree of diligence. Ordinarily the duty or obligation as to care is determined by the circumstances. It can not be said that as a matter of law the presence of danger and impending disaster “ involves the exercise of the highest degree of vigilance and care ” for one’s own safety. Man is ever in the presence of danger, and ofttimes of disaster, without the danger being very great or his having notice of either, hi or do we regard the following instruction one that should have been given:

“ The court instructs the jury that the requirement of the law that the plaintiff shall prove each and every material allegation in her declaration, or some count thereof, before she can recover, is one of the requirements that is as binding upon you in this case as any other obligation; and even in this case, if you should believe that the testimony is evenly balanced, under the law and your oaths, your verdict should be for the defendant.”

The definition of ordinary care “ or reasonable care ” is that care which “ prudent persons usually exercise; ” as applied to a particular case, is that care which prudent persons would exercise under like circumstances. v

The seventh instruction was faulty in making use of the term “ ordinary persons ” instead of “ prudent persons.” hi or should instructions have been given speaking of risk, assumed by the plaintiff.

As the plaintiff was never in the employment of the defendant, neither, with respect to the.other, assumed any risk.

The plaintiff knew that she worked in a perilous place, that the cars she cleaned were liable to be moved at any moment, and she was bound to exercise such care for her safety as the obvious dangers of the place required.

The plaintiff did not submit any special interrogations to be answered by the jury; the defendant did, but they were not given; the court of its own motion prepared and submitted three, w'hich the jury did not answer.

The plaintiff did not ask the court to direct the jury to retire and answer their questions, but merely excepted to the action of “the jury in failing to answer” the special questions.

This action of the jury can not be assigned for error, nor can the action of the court in failing to do what it was never asked.

Notwithstanding the errors pointed out, we think that the judgment should be affirmed.

The plaintiif made no case entitling her to a verdict. The evidence that the defendant was negligent was not such that reasonable men could come to the conclusion that she had established by a preponderance of the evidence the allegations of her declaration. Affirmed.


text:
    City of Chicago v. Chicago League Ball Club.
    1. Municipal Corporations — Compensation for Temporary Occupation of Private Property for Public Use in Emergencies. — The existence of an emergency, such as to justify the temporary occupation of the premises of a private citizen by the militia when called into active service by the authorities, is to be determined by the circumstances of the case, and where such an emergency exists and ¿he premises are so occupied, the owner is entitled to be reasonably compensated for the use of his property and for the act, tal damage, if any, sustained by him.
    3. Courts. — Ef'ect of a Finding Where the Trial is by the Court Without a Jury. — Where the issues involved in a case are submitted to the court and a trial is had without a jury, the finding of the court is to be given the same force and effect as the verdict of a jury, and should not be disturbed unless manifestly against the weight of the evidence.
    Assumpsit, for use and occupation. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Charles M. Walker, Corporation Counsel, attorney for appellant; Granville W. Browning, of counsel.
    Charles M. Sherman, attorney for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of-the court.

This is an appeal from a judgment rendered against the City of Chicago, for the use and occupation of appellee’s ball park by the militia of the State, under direction of the mayor, and for damages alleged to have been thereby sustained.

When the cause was here before (Chicago League Ball Club v. City of Chicago, 77 Ill. App. 124), we said :

“The existence of an emergency, such as to justify the temporary occupation of the premises in controversy, is to be determined from the evidence. If such emergency existed appellant is entitled to be reasonably compensated for the use of the property and for actual damage, if any thereby sustained. Otherwise the occupation was a mere trespass for which appellee is not liable.”

Evidence was introduced at the trial now under consideration tending to show the existence of such an emergency, and the Circuit Court awarded judgment in favor of appellee for such compensation and damages. It is now insisted that the evidence failed to show the existence of any emergency, and that the award of damages is excessive.

In the opinion above referred to the question of the liability of the city was fnlly discussed. It is therefore unnecessary again to review the points raised in the briefs of appellant’s attorneys relating to that subject. The objections that the State alone is liable, that the mayor had no authority to bind the city by the seizure of the premises in question, under his orders, that there was no appropriation by the city council for such expense or damage and that no recovery against the city can be had in assumpsit, nor at all, are, so far as this court is concerned, settled by that opinion. While it is intimated that the evidence does not show an emergency of a serious character, it is yet conceded in appellant’s brief, that “the calling of troops here may have been under circumstances constituting an emergency. It may be mobs were attacking railroad property to such an extent that an emergency was created necessitating the calling of those troops.” But, it is urged, “ that has nothing to do with the question as to whether the taking of these grounds was an emergency.” We think it has. The evidence shows the grounds in question to have been in the immediate neighborhood of one of the centers of disturbance and mob violence. A police inspector testifies that he advised the mayor to place the troops close to the center of the trouble, and that the premises in question were 61 near the seat of the trouble.” It does not appear that any other suitable place for the purpose was available. The mayor directed the inspector to take possession. The latter conducted the troops to the ball park, pushed the gates open, went in, the troops pitched tents there and went into camp. There is no dispute as to these facts. We think the existence of the emergency can not • wmll be doubted under the evidence.

It is contended that the amount of the finding and judgment are excessive. The issues were submitted to the court and a jury trial waived. It is well settled that under such circumstances, the finding of the court is to be given the force and effect of a verdict by a jury, and should not be disturbed unless manifestly against the weight of the evidence. Wood v. Price, 46 Ill. 435; Bishop v. Busse, 69 Ill. 403-406; Casey v. Vandeventer, 76 Ill. App. 628-629. In the case at bar, we have examined the evidence with care. It tends to show that some of appellee’s property was destroyed during the occupancy of the troops, that grounds used for various atheletic exercise and exhibitions were dug up, and left in a condition such as to make their use for the purposes for which they were designed impracticable for a considerable period after the actual occupation by the troops ceased. The property was occupied twenty-one days or thereabouts. It appears that the court did not accept the rental valuation or estimate of damages made by appellee’s witnesses, but more nearly that of appellant’s witnesses, allowing also rent for such time as it appeared would be reasonably necessary to restore the premises to their original condition. After careful consideration of the case, we are unable to say that the finding was manifestly wrong, and it certainly does not so appear. We are unable to find any sufficient reason in the evidence to justify- interference therewith.

We agree with appellee’s counsel as to other objections not raised in the trial court, and urged here for the first time, that they must be deemed to have been waived.

The judgment of the Circuit Court must be affirmed.


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    Norton H. Van Sicklen v. E. W. Ballard, use of, etc.
    1. Recovery — •Under Entire Contracts. — A party seeking to recover under an entire contract must show a precedent performance by himself according to the terms of the contract, or a valid excuse for not. performing it.

      2. Contracts — Acts Justifying an Abandonment of a Contract.— Where one party to a contract for services gives notice to the other party that he is going out of business on a certain date and will dispense with his services after such date, such notice is the equivalent of a declaration by him to the other party to no longer perform his part of the contract after the date named, and is a justification of the party notified in abandoning the contract as soon as he succeeds in getting other employment, after the date named in the notice.
    Assumpsit, on a contract for services. App'eal from the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Walrath & Woolfolk, attorneys for appellant.
    Ferguson & Goodnow, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

A contract was entered into between the parties whereby appellant hired appellee to perform as a traveling solicitor of advertisements, services at a stated sum per week and legitimate traveling expenses, for a period from September 5, 1898, until August 31, 1899.

Full payment was made by the appellant of everything claimed by appellee, except as to $156,50, for which the judgment appealed from was rendered, that sum being admitted to be due, if anything.

The contention by appellant is that appellee failed to prove performance by himself of his part of the contract, in that he failed to prove he had rendered the services he had agreed to perform, the performance of which by him wTas a condition precedent to his right to recover.

This claimed failure of proof, it is argued, consists in two respects : one, that he did not show that he covered the territory he was required to travel in, and the other, that he did not prove he devoted his entire time and best endeavors to the business, as his contract provided he should do.

The proposition that one seeking to recover under an entire contract must show a precedent performance by himself, according to the contract, is undoubted law. Eldridge v. Rowe, 2 Gilman, 91; American Publishing House v. Wilson, 63 Ill. App. 413.

The undisputed testimony of appellee, however, shows, and it wras substantially admitted by letters of the appellant, that appellee complied with the terms of the contract in every respect, except as to serving the full length of time called for. And in respect of that matter, it conclusively appears that appellant himself gave notice to appellee that he, appellant, was going out of the business on July 29th, and that appellee’s services would be dispensed with by him after that date. That notice was the equivalent of a declaration by appellant to no longer perform his part of his contract, after the date named.

Though such an attempted termination of the contract by appellant, without the consent of appellee, was unavailing, the appellee had the fight to .treat it as a refusal by appellant to be any longer bound by it, and as a justification of his own act in abandoning the contract as soon as he got other employment, on August 9th, as he did.

And for his services up to that time appellee was entitled to recover. Webster v. Enfield, 5 Gilman, 298; Wilson v. Bauman, 80 Ill. 493; Geary v. Bangs, 37 Ill. App. 301; McPherson v. Walker, 40 Ill. 371; Kadish v. Young, 108 Ill. 170.

In the last two cited cases, the rule is stated:

<e That if one bound to perform a future act (in this case the continuing in employment of appellee), before the time for doing it, declares his intention not to do it, this, of itself, is no breach of his contract; but if this declaration be not withdrawn, when the time arrives for the act to be done, it constitutes a sufficient excuse for the default of the other,” citing cases.

When the time arrived at which appellant gave notice he would no longer employ appellee, the notice not having been withdrawn, appellee might have quit, or he could, as he did, continue to recognize the contract as in force until he obtained other' employment. The judgment must be affirmed.


text:
    Columbus B. Hauk et al. v. Edward H. Van Ingen et al.
    1. Husband and Wife — Effect of the Wife Permitting Her Funds to Remain in the Hands of Her Husband for a Long Series of Years. — A wife having permitted her funds to remain in the hands of her husband for a long series of years, under the circumstances and conditions as shown in this case, should be precluded from making any claim to them as against the claims of the creditors of her husband.
    3. Same— Where the Wife for a Long Series of Years Permits Her Husband to Hold the Title of Her Lands. — Where a wife has permitted her husband for a long series of years to take and hold the title to her lands and to hold himself out to the world in a general way as the owner of the same, and there is a reasonable presumption that his creditors have to some extent acted upon the faith of such ownership in extending credit to him, the wife should not be permitted at the last moment to withdraw such property from the use óf his creditors.
    3. Fraudulent Conveyance — What is, as to Creditors. — Where a party makes a conveyance of his property for the purpose of hindering, delaying or defrauding his creditors, such conveyance is fraudulent and void as to such creditors.
    4. Same — What is Not, Ipso Facto, from a Husband to His Wife.— Where a husband who is largely indebted makes a voluntary conveyance to. his wife, but does not make it with any intention of hindering, delaying or defrauding his creditors or other persons, such conveyance is not ipso facto fraudulent and void, but the question, upon an application by his creditors to set aside such conveyance, is, was the conveyance, considering the pecuniary circumstances and condition of the husband, a reasonable and proper one for him to make, and if it was not, it will at the instance of the creditors defrauded be set aside, although the bus-band in making it may have honestly believed that it was, as regarded his wife and creditors, a right and proper thing for him to do.
    5. Same — When a Man is Mistaken as to His Pecuniary Circumstances. — A man may be honestly mistaken as to his pecuniary circumstances and think himself worth more than he really is; and if it turns out that he was mistaken and a conveyance made by him is unreasonable, and, as regards his creditors, unjust, it will be set aside upon their application.
    6. Married Woman — Effect of Allowing Her Property to Stand upon the Records in Her Husband’s Name. — Where a married woman allows her property to stand upon the records in the name of her husband, and upon the strength of his apparent ownership he obtains credit and purchases goods from the complainants, it is neither just nor equitable that his wife should be permitted to assert that the property, all the time it so appeared of record in his name, in fact belonged to her.
    7. Same — Claims Against Their Husbands. — A claim by a wife against her husband, asserted for the first time when his liabilities begin to jeopardize his future prospects, should be regarded with watchful • suspicion, and when attempted to be asserted against creditors upon the
    evidence of the parties alone, uncorroborated by other proof, should be rejected, unless their statements are so full and convincing as to make the fairness and justness o,f the.claim manifest.
    8. Evidence — Of the Parties as to Good Faith of Conveyances Between Husband and Wife. — The testimony of the parties to a conveyance between a husband and wife, that it was made in good faith and that there was no fraudulent intention in making it, can not prevail against facts' which satisfactorily show that it was fraudulent as to creditors.
    Creditor’s Bill. — Appeal from the Circuit Court of Cook County; the Hon. Edward F. Donne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    William W. Gurley and Horace G. Stone, attorneys for appellants.
    F. W. Becker, attorney for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

This was a creditor’s bill based upon a judgment for $2,254.90 recovered by the complainants against Columbus B. Hauk. The bill having been answered the cause was referred to a master to take testimony and report. The master in his report, from the evidence, finds that Joanna i\T. Hauk acquired, in 1858, by the will of her father, two lots in George street, Cincinnati, Ohio; that these lots were sold, one in 1864 and the other in 1865, for a total sum of $6,400; that this sum, together with about $11,600 belonging to Columbus B. Hauk, was invested in the purchase of a farm at South Charleston, Ohio, the title being taken in the name of Columbus B. Hauk; that this farm was sold in 1872 for $25,000, and from this sum the Dial & Hauk Block in Springfield, Ohio, was purchased for $15,000, Mrs. Hauk furnishing such portion of the proceeds of the sale of the South Charleston farm as belonged to her, and Columbus B. Hauk supplying the balance, the title being taken in the name of Columbus B. Hauk. This block was sold in 1882 for $21,000; Mrs. Hauk’s share of the same was invested in notes and mortgages until November 9, 1899, when the Washington avenue property was purchased for $4,000, and the year following the house thereon was built at an expense of $6,000, making the total cost of the lot and house $10,000; that the aforesaid transactions, at the time of their consummation, were the subject of numerous discussions between Hauk and his wife and she was consulted and agreed to the various sales of her property, and that the various investments and purchases should be made with her money.

The master further finds that the title to the Washington avenue property was taken in the name of Columbus B. Hauk, and that on January 13, 1891, he conveyed the same to Joanna N. Hauk, his wife, three days before the indebtedness on which the complainant’s judgment was obtained became due, and that on April 17,1891, Columbus B. Hauk made an assignment for the benefit of his creditors, ■ upon the advice of his son.

The master further finds that Mr. Hauk owed at least $21,000 at the time he made the conveyance of the Washington avenue property to his wife, and that the entire amount realized from his estate, so far as shown by the evidence in this case, was but $9,100, and that the debt due to the complainants in this case is still unpaid.

The master further finds that Columbus B. Hauk formed a partnership with one Weimer and one Bruce, March 1, 1883, for carrying on a general clothing business at Springfield, Ohio; that Weimer’s interest was purchased by Bruce and Hauk, in 1884, and the firm was thereafter known as Bruce, Hauk & Co.; that this firm began purchasing goods from complainants soon after its organization; that Harry S. Hauk, a son of Columbus B. Hauk, was in the employ of the firm of Bruce, Hauk & Co., and represented his father’s interest; that July 1, 1887, Harry S. Hauk sent a statement which was intended to show the financial condition of Bruce, Hauk & Co. at that time, and which sets forth that Columbus B. Hauk "was the owner of real estate to the amount of $30,000, and had money loaned on first mortgages to the amount of $15,000; that on February 25, 1890, Harry S. Hauk wrote a letter in the name of Bruce, Hauk & Co., to the complainants, stating that the assets of the firm were just the same, if anything, better, as his father had made about $2,000 on real estate the year before.

The master further finds that the goods bought from complainants for which the judgment was entered were purchased between July 5 and November 13, 1900, and that payment therefor "was due January 16, 1891; that Joanna N. Hauk knew that her husband was in the clothing business, but none of her money was used or invested therein; that early in January, 1891, Columbus B. Hauk bought out his partner, Bruce, and paid for his interest $1,750, part in January and the balance in February.

The master reports that according to the testimony of Columbus B. Hauk, the purchase of the Washington avenue property was with money in a bank at Springfield, Ohio, which had been collected on notes belonging to Hauk and his wife; that the $6,000 for improving the Washington avenue property came from money collected by Hauk for his wife; that they were jointly interested in all the properties (previously bought) in proportion as each contributed to the purchase of the same; that they bought several pieces of property in which they both were concerned, and that the titles thereto were always taken in his name; that the Washington avenue property was bought and the deed taken in his name in the same way.

The master further finds that in the matter of the lot there is reasonable presumption that the complainants acted upon the faith of the property upon Washington avenue belonging to Columbus B. Hauk and that said property is liable for the complainants’ debt.

The master further reports that in view of the evidence which shows a mixing of the funds of Mrs. Hauk with those of her husband for a long series of years, so that the identity of her funds has been completely lost, and of the investments and loans of their joint funds, and the absence of any contractual relationship between Mrs. Hauk and her husband, he is unable to find that the purchase of the Washington avenue property was with the funds then belonging to the defendant J oanna H. Hauk. The master then goes on to say:

“ If the wife permits her husband to take possession of and invest the funds as his own for a series of years, and to make use of the same and the property obtained therewith, and establish a credit for himself, then, in my opinion, the funds should no longer belong to the wife, but should, in law, be treated as belonging to the husband. There does not appear to be anything to indicate a loan of the wife's money to her husband. In fact, the surrounding circumstances in this case are just as consistent with a gift as with a loan.

I am of the opinion, therefore, and so find as a conclusion of law, that Mrs. Hauk, having permitted her funds to remain in the hands of her husband fora long series of years, under the circumstances and conditions herewith found and set forth, should now be precluded and estopped from making any claim thereto from the creditors of her husband.

“ The fact that Columbus B. Hauk was continually, during a long series of years, in the possession of and investing his wife’s funds, would certainly tend to give him credit and standing as a business man, even in the absence of any special representation as to any particular property, and I am of the opinion that the circumstances in this case, being within the rule laid down in numerous cases decided by the Supreme Court of this State, that where a wife has permifcted her husband for a long series of years to take title to her lands and receive her moneys and to hold himself out to the world, in a general .wav, as the owner of the same, there is a reasonable presumption that the creditors act, to some extent, upon the faith of such ownership, and that in such case the wife should not, at the last moment, be permitted to withdraw the property from the use of his creditors. Although Hauk may have been justified in believing that he was solvent and able to pay his debts in 1891, and may have been justified in making his sworn answer in this cause, denying his insolvency, yet the facts as consequently developed, show that he was very much in error, and that when, within a space of three months thereafter, he turned over his property to his creditors for the payment of his debts, the assets remaining in his hands were found to be largely deficient for that purpose.”

The report of the master was confirmed by the chancellor and a decree was entered setting aside the conveyance of the Washington avenue property to Mrs. Hauk and ordering that the same be sold and the proceeds applied in satisfaction of the complainants’ judgment.

The denial by the defendant, under oath, in this case, that there was any intention to defraud creditors in the making of the conveyance to Mrs. Hauk of the Washington avenue property, is not conclusive under the statutes of this State. If one makes a conveyance of his property for the purpose of hindering, delaying or defrauding creditors, such conveyance is fraudulent and void as to such creditors; whereas, if a husband makes a voluntary conveyance to his wife, when he is largely indebted, yet does not make such transfer with any intention of hindering, delaying or defrauding creditors, or other persons, the conveyance is not ipso facto fraudulent and void, but the question presented to the court, upon an application by creditors to set aside such conveyance, is, was the gift such a one, as, considering the pecuniary circumstances and condition of the grantor, was a reasonable and proper advancement and gift for the husband to make? If it appears from the evidence that such gift was not, under the circumstances, a reasonable and proper one, it will be, at the instance of creditors defrauded by it, set aside, although the husband may have, in making the transfer, honestly believed that it was, as regards his wife and creditors, a rightful and proper thing for him to do; and in determining whether such gift was a reasonable and proper one, the subsequent condition and course of events, with reference to the pecuniary circumstances of the grantor, may be taken into consideration. In other words, a man may be honestly mistaken as to his pecuniary circumstances and think himself worth much more than he really is. If it turns out that he was mistaken — the true condition of his affairs at such time being made known — if it was evident that the gift by him was unreasonable, and as regards his creditors, unjust, it will be set aside. 1 Ency. of Pl. & Pr. 942; Phillips v. Kesterson, 154 Ill. 572, 574; Bell v. Devore, 96 Ill. 217, 223; Read v. Read, 135 Ill. 482, 489; Duval v. Duval, 153 Ill. 49-52; Hughes v. Noyes, 171 Ill. 575, 580, 583.

In the present case, what is contended by the defendants is, not that the transfer of the Washington avenue property was a gift or advancement, but a transfer to her for what had been purchased and improved with her money, and what equitably always belonged to (her. Prom the evidence it appears that more than thirty years prior to the conveyance of the Washington avenue property, Mrs. Hauk received, under the will of her father, certain lots in Cincinnati, which were together sold for $6,400; that this sum, together with $11,600, was, by her husband, invested in the purchase of a farm at South Charleston, Ohio, the title thereto being taken in the name of Columbus B. Hauk; that this farm was afterward sold and the proceeds invested, from time to time, in various ways, in other pieces of real estate, and in notes and mortgages; that the titles to all the pieces of real estate into which any portion of the funds originally belonging to Mrs. Hauk entered, were always taken, with her knowledge and assent, in the name of her husband, and it does not appear that up to the time of the transfer of the Washington avenue property by Mr. Hauk to his wife, any of the proceeds, in whole or in part, of the money which originally belonged to her, was ever taken or held otherwise than in the name of Columbus B. Haulc.

As the master well says, “ the transactions between Mr. and Mrs. Haulc relative to the property which originally belonged to her, were as consistent with a gift as with a loan.” It does not appear that at any time any accounting was ever had between Mr. and Mrs. Haulc as to his investment of the funds that came to her from her father’s estate, or that any memorandum thereof was ever given by him to her; while it does appear, that from time to time, as is customary by husband and wife, there was talk between them as to the various investments, sales and purchases, which from time to time he made.

As is well said in Hughes v. Noyes, supra:

“A claim by a wife against her husband, first put in writing when his liabilities began to jeopardize his future, should always be regarded with watchful suspicion, and when attempted to be asserted against creditors upon the evidence of the parties alone, uncorroborated by other proof, should be rejected at once, unless their statements are so full and convincing as to make the fairness and justness of the claim manifest.”

The testimony of the parties to a transaction of this kind that there was no fraudulent intention, that the conveyance was made in good faith, can not prevail against facts ■ which satisfactorily show that the conveyance was fraudulent as to creditors. Township v. Foley, 113 Mich. 622; Phillips v. Kesterson, 154 Ill. 572-574.

Granting that Columbus B. Hauk, in respect to the property which his wife obtained from her father’s estate, has always occupied the position of a trustee as to the same, he has so mingled the funds with his own, and this with her knowledge and consent, that her property can not be separate from his; so, as regards other creditors, she, if his relationship to her is to be considered as that of a trustee, occupies the position, only, of a general creditor, because the funds which originally came to him can not be followed. The identification of such a fundís a prerequisite of aright to follow it. Wetherell v. O’Brien, 140 Ill. 146; Kneisley v. Weir, 81 Ill. App. 251; Dillman v. Nadelhoffer, 162 Ill. 625-631.

With the knowledge arid assent of Mrs. Hauk, the title to this property stood of record, from November 9, 1889, until January 13,1891, in the name of her husband. During this period he .purchased from the complainants the goods for which their judgment was obtained. -Upon the strength of his apparent ownership of such property he obtained credit; and it is neither just nor equitable that she should now, as against them, be permitted to assert that this property all the while belonged to her. Keady v. White, 168 Ill. 76.

It may be that she did not know of the representations made July 1, 1887, and February 25, 1890, by her husband to the complainants, concerning his financial condition, among which was the statement that he was the owner of real estate to the amount of $30,000, but she did know that if he made such representations, or if the complainants or other creditors investigated his financial condition, they would find the title of the property .now under consideration, standing of record in his name.

During the progress of the trial the complainants were permitted to amend their bill, by stating that they were, at the time of said conveyance, creditors of Columbus B. Hauk. This amendment introduced no new cause of action. It was but a mere enlargement of the previous allegations that they had obtained judgment against him and had execution issued thereon and. returned “no property found.” Haynie v. C. & A. R. R. Co., 9 Ill. App. 105; Dillman v. Nadelhoffer, 162 Ill. 625; Morrill v. Kilner, 113 Ill. 318.

So far as appears, there was not made in the court below and there certainly is not made here, any question as to whether the order of sale of tho Washington avenue property should not have been subject to the dower interest of Mrs. Hauk in said property. We have therefore not considered such matter.

The decree of the Circuit Court is affirmed.