text:
    Peter A. Brower et al. v. Elliott Callender et al.

      Filed at Ottawa November 20, 1882.

    1. Evidence—declarations of grantor not competent after grant. The declarations of a grantor after making the grant, are incompetent as evidence to prove what the grantor then did, or to impeach the conveyance.
    2. Duress—u'hat will avoid deed. Mere vexation and annoyance, leading to the execution and acknowledgment of a conveyance of land in trust for the grantor and his heirs, is not sufficient to establish such duress as to avoid the deed, unless it be further shown that the grantor’s mind was in that condition that by reason of such vexation and annoyance a state of insanity was produced, which existed at the time of the execution and acknowledgment.
    3. Same—estoppel to rely on party’s own acts as causing. A party who induces the owner of land to convey the same in trust, by threatening to have a conservator of the grantor appointed, and instituting proceedings to have the grantor adjudged insane,, and dismisses such proceeding upon the executing of such deed, will he estopped from afterwards avoiding the deed on the ground its execution was procured by duress.
    4. Trust—remedy for breach of. The remedy for a breach of trust or a failure to perform his duty by the trustee, is his removal, and the appointing of a new one, and not the setting aside of the deed of trust.
    Appeal from the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding
    Mary Oakley filed her bill in equity, in the office of the clerk of the circuit court of Peoria county, on the 14th of December, 1880, in which she alleged that prior to and on the 22d of July, 1879, she was the owner in fee of sundry real estate in said county, worth, then, $10,000, and then renting for $65 per month, and was all she had; that she was then eighty years old, and had five children, all of age, and without means to support her,—one son, Charles, was totally blind, in ill health, and dependent upon her for support, and that he died on January 9, 1880; that on the 22d of July, 1879, she was in poor health, enfeebled by age and care, when some of her children threatened to have her arrested and brought before the county court, and have the use and control of her property taken from her and placed in the hands of a conservator, asserting that they had. power by law to do so, and would, immediately, unless she deeded the property to a trustee, and she, apprehensive of such a proceeding, alarmed and mortified, and fearing she would lose ■all her property thereby, and her support in her old age, and they, seeing her situation, and to force a conservator upon her, declared that one should be immediately ai^pointed to ■ take all of her property from her, unless she conveyed it to such a trustee on terms dictated by them, to do which she tried to avoid; and they had her immediately summoned before the county court to place her property in a conservator’s hands, and she was so surrounded, oppressed, alarmed, confused and threatened, that she was forced, against her will, not comprehending what she was doing, or understanding the contents of the deed she made, to convey all the property, by trust deed, to defendant Callender, without consideration, with power to him to lease, mortgage or sell it, at discretion, for the use of complainant and her son Charles, for their lives, should it even require the whole to be so used, and any residue to be held for and divided between her other children, at her death; that defendant Callender accepted the trust, which was executory and continuing, and that he leased and mortgaged the property, and got the proceeds, and refused to provide for her, and left her to suffer from cold and want, while he kept her property and its proceeds in his own use; that her health was gone, and she was in want of house and home and the comforts of life, which Callender refused to get for her; that her property was not derived by her from her children, and yet Callender kept her in cold and in want, to hold it for his use or for them; that he neglected and refused to perform the trust he undertook to perform, and as she was remediless, she prayed the court to cancel and set aside the trust deed to Callender, require him to account, and surrender to her the title and possession of the property, etc. Summons was issued, and served upon Cal-lender, and the court ordered that he pay complainant $10 per week for her support, pendente lite, and until the further order of the court.
    Before any further order in the ease, and on the 21st day of February, 1881, the complainant Mary Oakley died, having previously made her last will and testament, whereby she gave and devised a part of her property in fee to Peter A. Brower and Margaret B. Brown, and the residue of her property she devised, first, for the payment of her debts; and second, that the remainder, if any, should be equally divided among all her children. She appointed Peter A. Brower and Margaret B. Brown executor and executrix of her last will and testament, who duly qualified as such. Charles Oakley, her blind son, referred to in the bill, died some time before the death of Mary Oakley. She left surviving her the following named children as her only hems at law, viz., Peter A. Brower, Margaret B. Brown, Maria Hall, and Marcellus Oakley.
    On the 4th of April, 1881, Peter A. Brower and Margaret B. Brown filed in the office of the clerk of the circuit court of Peoria county an amended and supplemental bill, setting up these facts, restating, substantially, the allegations of the original bill, and praying, as in the original bill, that the deed of trust be set aside, and for an account,—making, also, Maria Hall and Marcellus Oakley defendants thereto, and they were duly brought before the court by summons. Elliott Callender answered, alleging a general want of equity in the bill. He admitted the death of Charles Oakley, and of Mary Oakley, leaving heirs as alleged in the bill, and that she made the trust deed to him of the property in controversy without consideration paid by him, and that he had taken possession, and leased and mortgaged a part, and was about to sell it when restrained by the court, and denied generally all other material allegations in the bill; averring his good faith and efforts to carry out the trust, and demurs to the right and prayer for an account, specially and generally. The joint and several answers of Maria Hall and Marcellus Oakley admit the death of Mary Oakley • that she made the trust deed alleged, and left heirs surviving her, as alleged, and generally deny all other material allegations of the bill, and therein demur to the relief prayed. There was a general replication to the answers.
    On the 16th of March, 1882, complainants, by leave of court, filed a second amendment to the bill of complaint, alleging that said trust deed was executed by Mary Oakley while under substantial and virtual duress, and that she was then in a disturbed state of mind, from apprehension, annoyance, fear and distress, brought upon her through and by the proceedings to have her declared insane, and a conservator appointed for her, and her property taken away, which distracted her mind and compelled her to execute the alleged trust deed, to her wrong and injury, whereby it became and was void, and that she and said complainant Margaret B. Brown continued to live on the property in question to the filing of the bill.
    The cause was heard at the March term, 1882, of the Peoria circuit court, on bill, amended and supplemental bills, answers and proofs, and the court thereupon found the equities for the defendants, and decreed that the bill be dismissed, etc. This appeal is from that decree, and the errors assigned question the ruling of the court in so decreeing.
    Messrs. Prettyman & Sons, for the appellants:
    Where one is induced to act through fear, or threats, or of. apprehension short of duress, his acts may be avoided. Inhabitants of Worcester v. Eaton, 11 Mass. 368; 13 id. 371; 1 Story’s Eq. Jur. 239.
    Here were threats, alarm, misrepresentation and undue influence, exerted wrongfully and fraudulently by a part of those procuring the deed, and through this means the deed of trust was procured, and equity will set it aside as to all parties. Whelan v. Whelan, 3 Cow. 537; Brown v. Peck, 2 Wis. 261.
    The deed was made under false representation and suppression of facts, and without any consideration. Gee v. Spencer, 1 Vern. 32.
    Concealment of a material' fact is sufficient to avoid a release obtained by the person whose duty it was to make the disclosure. (Brodrick v. Brodrick, 1 P. Wms. 239; 1 Mod. Ch. 208; James v. Graves, 2 P. Wms. 270.) And this though the trustee is not privy, personally, to the wrong, etc. Herguenin v. Bosely, 14 Ves. 273; Bennett v. Wade, 1 Dickens, 84; Bridgeman v. Green, 2 Ves. 627.

      The refusal of the trustee to supply the grantor with the necessaries of life, warrants the inference of an abandonment of the contract by the trustee, and justifies a decree rescinding the contract and canceling the deed. Jenkins v. Jenkins, 3 Mon. 329; Frazier v. Miller, 16 Ill. 48; Oard v. Oard, 59 id. 46; Henry County v. Winnebago Drainage Co. 52 id. 463; Whitney v. Roberts, 22 id. 381; Brake v. Johnson, Prec. in Ch. 142; Roberts on Fraudulent Conveyances, 658.
    Messrs. James, Jack & Moore, for the appellees:
    The facts and circumstances of this ease fail to show duress, or that undue or improper influence was exercised by Mrs. Brown or Mrs. Hall upon the mind of Mrs. Oakley. Threats of a criminal prosecution, or the payment of money to avoid a criminal prosecution, do not make out a case of duress. Baldwin v. Murphy, 82 Ill. 485; Richards v. Duncan, 3 N. H. 508; Alexander v. Pierce, 10 id. 494; Knapp v. Hyde, 60 Barb. 82; Smith v. Rawley, 66 Ind. 502; Harmon v. Harmon, 61 Me. 227.
    A deed made to avoid a threatened suit will not be set aside for duress. Harris v. Lyon, 24 Pa. St. 347; Snyder v. Braden, 58 id. 143; Evans v. Gale, 18 N. H. 397; Davis v. Lester, 64 Mo. 43; States v. Davis, 79 N. C. 603; Landa v. Obert, 45 Texas, 539; Waller v. Gale, 8 B. Mon. 11; Miller v. Miller, 68 Pa. St. 486; Stover v. Mitchell, 45 Ill. 214; Swanston v. Ijams, 63 id. 165; Tooker v. Sloan, 30 N. J. Eq. 394.
    The undue influence necessary to be shown to set aside a will, is an influence specially directed toward the object of procuring a wdll in favor of particular parties. Allmon v. Pigg, 82 Ill. 149; Roe et al. v. Taylor, 45 id. 491; Yoe v. McCord, 74 id. 33.
    In the following cases, very similar to the one at bar, the deeds were upheld: Nace v. Boyer, 30 Pa. St. 99; Greenfield’s Estate, 14 id. 489; Volk v. Turn, 101 Mass. 494;
      Hildreth v. Elliott, 8 Pick. 293; Lindsay v. Lindsay, 50 Ill. 79; Wiley v. Ewalt, 66 id. 26.
    The trustee has faithfully executed his trust, but if he had not, the remedy would be the removal of the trustee and the appointment of another, and not the cancellation of the deed.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The first and principal question arising upon this record is, did Mary Oakley knowingly and voluntarily execute the deed of trust to Elliott Callender ? It is contended by counsel for appellants that she was ignorant of the contents of the deed when she signed it, and also that she signed it under duress.

The deed was the joint production of Messrs. Loucks and Hopkins, the first draft being prepared by Loucks and submitted to Hopkins, (who was the attorney of Mary Oakley,) when he made emendations, and then Loucks re-transcribed it. After it was thus perfected, (Loucks testified,) he read it all over to Mrs. Oakley, “and she expressed herself satisfied with it, and that it was just the thing she long wanted. * * * I then left the deed of trust with her, in accordance with my understanding with Mr. Hopkins that he would go there and take the acknowledgment.” Again he said: “Mrs. Oakley fully understood and knew the contents of the deed at the time I read it to her. I read it very distinctly and slowly, and explained its bearings, and what the trustee would have a right to do, and after my explanation she said she was perfectly satisfied.”

Hopkins, who took the acknowledgment of the deed, says: “She sat down near me, and I read the deed to her, explaining its provisions as I went along. She asked questions from time to time, and occasionally wanted a passage re-read, so as to get a more clear idea of it. I went over the deed, and all its provisions, and made explanations with much more than my usual care and particularity, for two reasons : first, because I knew, from my long acquaintance with her,-that she was unstable-minded, and apt to be dissatisfied with what she had done concerning her property, after it was done; second, because the relatives, questioning her sanity, might thereafter question the validity of the deed. After I had read it to her, and explained to her the meaning and effect of portions of it, and before she signed it, I asked her distinctly whether she understood it all, and she said she did. During the whole transaction I saw nothing to indicate or suggest to my mind that she failed to understand everything there was in the deed, and the effect of it. At this time, however, she was undecided whether to execute the deed or not, and asked my advice. I told her to act on her judgment. * * * I then told her the deed would have no force until delivered, and that she could retain it until she had made up her mind whether she wanted to have it go into force or not, and I left it with her, and left it until the next morning for her to decide, but that same evening she came to my house with the deed, handed it to me, said she had sufficiently considered it, and had determined to execute it. I then took her acknowledgment, and she left it with me, with directions to deliver it to Callender, which I did. ”

'It is only in the rarest instances where such ample proof of care taken to avoid misapprehension, and to insure a thorough understanding of the terms and effect of the instrument executed, is made. These witnesses, too, are men of high standing in the profession as attorneys at law, both for professional learning and integrity, and there is not the slightest suspicion of a motive for bias or unfairness in their evidence shown by anything before us. The appellant Mrs. Brown, and her daughter, Mrs. Harris, are inclined to contradict, in some respects, the evidence of Hopkins; but they were not in the room, nor even in the house, where Hopkins and Mrs. Oakley were when he read and explained to her the deed of trust. It is true they were in an adjoining house, and near by, but they heard under difficulties, and their surroundings were all unfavorable. Mrs. Brown was then on unfriendly terms with Mrs. Oakley. She and her daughter, Mrs. Harris, were not invited to be present,—they only knew by guess the purpose of Hopkins’ visit. They were, perhaps not unnaturally, in that state of excited feeling where there is great liability to the creation of impressions, purely imaginary, which can not subsequently be separated from those based on facts. Moreover, Mrs. Brown’s . subsequent interest to -have the facts different from those testified to by Hopkins, is to be taken into account. The subsequent declarations made by Mrs.- Oakley are incompetent as evidence to prove what she then did. They could, at most, but prove her forgetfulness.

There is no established principle of law which, under the evidence before us, would sanction our holding that the evidence established that Mrs. Oakley did not, knowingly, execute the deed of trust,—assuming, of course, that she was, mentally, capable of comprehending the nature and effect of such an instrument.

In order to clearly understand the question of whether Mrs. Oakley was acting under duress in executing the deed of trust, it is necessary to explain her relationship to the parties to this record, and the circumstances under which she executed the deed of trust, a little more fully than . appears from the statement of the case. , She had been twice married, and both husbands were long since dead. By her first husband, who was named Brower, she had two children, Peter A. Brower and Margaret B. Brown, these appellants. By her last husband, who was named Oakley, she had, living at the time, three children, Maria Hall- and Mareellus Oakley, appellees here, and Charles Oakley, who died since that time, but before the death of Mrs. Oakley. Mrs. Oakley was well advanced in years, (being, as alleged in her bill, eighty years of age,) and of infirm health. Charles was blind, and was rapidly approaching his death from a pulmonary affection, commonly called consumption. His care and support were objects of deep solicitude to Mrs. Oakley, and professedly so to all the other parties to the record. Mrs. Brown and Mrs. Hall, professing to be alarmed lest Peter A. Brower, who was, as we have seen, the brother of the one and the half brother of the other, should, by his influence with their mother, Mrs. Oakley, procure her to convey her property to him, and thus leave her, in her old age, and the blind and invalid Charles, without the means of support, employed Mr. Loucks to institute proceedings to have a conservator appointed to take charge of the estate of Mrs. Oakley, and accordingly, on the 19th of June, 1877, they signed a petition for that purpose, which was then filed in the office of the clerk of the county court of Peoria county, and a summons was thereupon issued, returnable to the July term of that court, which was served upon Mrs. Oakley on the same day that it was issued, viz., the 19th of June. She executed the deed of trust to Callender on the 22d day of July, 1877, and on the next day, the 23d day of July, the petition filed by Mrs. Brown and Mrs. Hall was dismissed, at their costs.

We think it quite apparent, from the evidence, that the trust deed would not have been executed when it was, if ever, had not the proceedings to appoint a conservator been instituted. But we also think it equally apparent that its execution was the result of Mrs. Oakley’s own deliberate and voluntary judgment and choice,—not only as a means of stopping that proceeding, but also of allaying jealousies among her children, and of relieving her of a care in regard to her property that she was physically disqualified to take. The idea of executing the deed of trust seems to have originated with Mrs. Oakley herself. Loucks says: “A few days after Mrs. Oakley had been served with notice, Mr. Brower, her son, who was then staying with the old lady, and taking care of- her and Charles, came to my office, and told me that Mrs. Oakley would like to see me for the purpose of having the proceedings for the appointment of a conservator stopped, and have a trustee appointed instead, and told me that the old lady was perfectly willing to .have a trustee appointed. * * * . I then went to see Mrs. Oakley. Upon conversing with her, I found her mind to be in a competent condition to know what she was doing. I then asked her what she wished to see me for. She said, to see if a trustee could not be appointed instead of a conservator. She said she had a trustee once before, during her first husband’s lifetime, who managed all her property and business, and she was anxious to have a trustee appointed to take charge of her property, as she began to feel weak and old, and it was a trouble to look after her rents and property, and it worried her to do so; that she had often thought of having a trustee appointed, so that she would be relieved from the burden and care of her property. ”

That there was no ground, in fact, for appointing a conservator, is conceded on all hands, and, in our opinion, there was no reason why Mrs. Oakley should have seriously believed a conservator would be appointed, nor do we think the proof shows that she did so believe. She consulted her. friend, Mr. Puterbaugh, an eminent attorney at law, and told him her troubles. He advised her, in regard to the execution of the trust deed, to do as her counsel thought best. He told her, also, “that if they went ahead with the proceedings for the appointment of a conservator, and Judge Hopkins should not appear for her, to let" him know, and he would appear for her and defend her rights. He says : “She seemed anxious to, avoid the proceedings, but, at the same time, she * * * insisted that she was as capable as ever to take care of her own business.”. Hopkins says: “Was employed to defend that proceeding. I looked up witnesses with a' view of showing her capacity and sanity, and advised her that I believed the proof was entirely sufficient for that purpose. ” At another time, he says, he told her that' if she refused to execute the deed they could not get a conservator appointed. Again he said, on cross-examination: “Mrs. Oakley' frequently expressed to me a great deal of solicitude in regard to the proceedings for the appointment of a conservator. She was somewhat nervous upon the subject, and had a good deal of anxiety about it. She never expressed to me an unwillingness to go before the court upon the hearing, but desired that the hearing might be prevented. ”

There is, undoubtedly, plenty of evidence that Mrs. Oakley was fretted and worried by this proceeding; but this, we think, from a fair consideration of the evidence, was not merely because of the proceeding itself, but because of the conduct of her children in instituting it, and as otherwise manifested. Puterbaugh says: “She stated that the proceedings were instituted by some of her children, and complained bitterly of the treatment she was receiving from them.” Mrs. Brown shows, herself, that Mrs. Oakley had, just before that time, refused to live with her, and wanted to be with strangers. She also says: “Up to this time she had managed her own affairs, and it always worried her that she could not do it in her lifetime. Her feelings were very bitter. She did not like it, as she thought her children had done wrong.” Hopkins says: “She talked with me about the policy of making the deed. Said that some of her children desired to have the conservator appointed because they were afraid that she would give her property to P. A. Brower, or give him some advantage over the rest; but she did not intend to do that, as he had cost her a great deal already, and went on to specify several instances in which she had to pay money for him, or that he had got her property or obligations in such a way that, she had to pay, and she did not intend to do it any more. ”

After the trust deed had been agreed upon, and before signing, Loucks says Mrs. Oakley “expressed herself perfectly satisfied with it, and that it was just tlie thing she long wanted, -and that she had no doubt that Mr. Callender, who had been fixed upon by herself and Judge Hopkins as trustee, would do well by her, as he was handy to her and the property, and now she would be relieved of a great deal of , trouble. ” He adds, moreover: “Mrs. Oakley first suggested to me the ultimate disposition that should be made of her real estate after the termination of the life estate of Mrs. Oakley and Charles, and it was provided for at her instance.”

Without undertaking to define with precision what will and what will not constitute such duress as justifies the setting aside of a deed knowingly executed and acknowledged in due form, we are clear the evidence here does not establish such duress. Mere vexation and annoyance are not sufficient for that purpose, unless, indeed, it be shown that the mind was in that condition that by reason of such vexation and annoyance a state of insanity was produced, which existed at the time of the executing and acknowledging of the deed. Without disregarding the evidence of Loueks, which we can not do, the trust deed was a result finally reached by Mrs. Oakley, that met with the approval of her judgment on grounds of personal convenience, as well as on oflier grounds. It was not the product of her fears,—the result of a paralyzed will,— but of a deliberate and voluntary judgment.

It is not contended that there is anything inequitable in the deed of trust. Assuming, what the proof shows, that by reason of the physical infirmities of Mrs. Oakley some one other than herself was needed to take charge of and manage the property, and in view of its limited capacity for production, it is not perceived why the trusts are not wisely conceived and carefully guarded. The support and care of Mrs. Oakley and of Charles were assured,—not in a stinted or limited manner, but with reasonable liberality; and the disposition of the remainder, after the death of Mrs. Oakley and Charles, was that which the law itself would have provided,—equality to all of the children.

It is to be noted' and considered as of some, though perhaps slight, significance, that this litigation would have died with Mrs. Oakley but for the fact that Mrs. Oakley, in her last sickness, made a will making specific legacies of certain property, conveyed by the deed of trust, in favor of Peter A. Brower and Margaret B. Brown, whom she appointed executor and executrix of such will. This, it is claimed, is based upon a sort of moral equity, originating in the fact that such property was purchased by money belonging to their father. Although not material, it is not clear that this is the fact. Peter A. Brower says certain property was, settled upon his mother by an ante-nuptial contract with his father, and that the property willed to him' and Mrs. Brown is the proceeds of that property. He does not say whether this property belonged to his father, originally, or whether his mother inherited it or otherwise derived it from some other source, and his father simply, by the ante-nuptial contract, surrendered the right which, at common law, he would, upon marriage, have had to it or to its possession. But, in either event, the property thenceforth was hers. She enjoyed it and preserved it, and it belonged to her as completely as, after she became a widow, her earnings did. She might, it is true, justify herself upon that ground in giving it all to Brower’s children; but there was no legal claim in that regard, and the moral claim was rather Shadowy and fanciful.

But, we think, under this evidence it does not lie in Margaret B. Brown and Peter A. Brower to say the deed of trust was executed under duress. If the proceedings to appoint a conservator caused duress, who more than Margaret B. Brown is responsible therefor? She joined in the employment of an attorney to institute the proceedings. She joined in signing the petition therefor, and her attorney (Loucks) testified that she furnished the data on which the charge of insanity was preferred, and she joined in agreeing that when the trust deed was executed the petition should 'be dismissed. It is true she claims in her evideúce to 'have beeh misled by Mrs. Hall and Marcellus Galdey, but she is not'borne out in this by her attorney, and the attendant circumstances, as'in proof, do not bear her out. Mrs. Hall and Marcellus Oakley both resided in Pekin, while she resided in Peoria, where, also, resided Mrs. Oakley, and until quite recently Mrs. Oakley "had been residing with her. While, therefore, they must learn from her or others the condition of Mrs. Oakley’s mind, she, of her own knowledge, knew what it was. Instead of their being able to inform her, she should have informed them. Loucks says: “I learned 'most of the facts on which I based my petition for "appointment of a 'conservator, from Mrs. Brown.” Again: “I notified Mrs. Hall, Mrs. Brown and Mr. Oakley of the proposition Mrs. Oakley had made, i. e., to make a deed of trust. They told me that their only object was to have the old lady and Charles properly cared for, if it took all the property to do so; that if it could be done just as well by the appointment of. a trustee as a conservator, they would be perfectly satisfied.” And again: “Mrs. Brown was perfectly satisfied in having the deed executed.” Peter A. Brower was then with Mrs. Oakley, taking care of her. His position,:—that of son and chosen protector,—was one demanding of him as a solemn duty to see that she was protected in every respect. He knew her condition, mentally and physically, and her necessities, and' means óf supplying them, thoroughly; yet he was the bearer of the proposition from her to the attorney of Mrs. Brown and Mrs. Hall to have this deed of trust executed, which he now says was executed under duress, and he gave it his unqualified approval "until after it was finally agreed upon and it came to designating the property to go into the deed, and then, for the first time, he objected,—not, however, because she was being coerced or wronged, but because she was including property he claimed she ought to give to him.

Loucks says, after mentioning that Brower came to him with this proposition from his mother: “As I was leaving the house Mr. Brower followed me out, and wanted to know what we had done. I told him what she wanted in regard to the appointment of a trustee, and that she wanted me to be appointed, and he urged me to take the appointment,—that that would be satisfactory to all. ” In his evidence before this, while reciting the communication conveyed to him from Mrs. Oakley by Brower, Loucks likewise said, that Brower said “he (Brower) also was perfectly willing that a trustee should be appointed. ” This witness also shows that when he went to Mrs. Oakley to get a description of the property for the trust deed, Brower assisted in procuring title papers, etc., to obtain the necessary description,- until he and his mother got into a dispute about a piece of property in Pekin, which he claimed she should give to him. He demanded a deed for it then, and upon her refusing to make the deed he angrily informed her that he would go back to Pekin, and left the house. If there was duress then, he knew it, and should have prevented it. By his conduct and words he encouraged and aided in the execution of the deed of trust, and it would be inequitable to now allow him to make profit to himself by repudiating and disavowing what he then did.

Some merit is claimed for these appellants on the ground of personal care and attention rendered by them for Mrs. Oakley; but the report of the trustee, and other evidence, shows this was all for a consideration charged and paid, and if, therefore, the amount was not sufficient, the remedy is not through this proceeding.

Upon the point made in the bill that the trustee failed to perform his duty, we deem it sufficient to say the proofs do not sustain the charge. That Mrs. Oakley made frequent and serious complaints, towards the latter part of her life, is certainly clearly proved, but it is about as well proved that it was not possible to satisfy her. She first could not live with Mrs. Brown, then must go in a strange family, then could not stay there but must go back to Mrs. Brown’s, then must go to Brower’s, at Pekin, and then, after the novelty of being there wore off, she wanted to be back again at Peoria. Disease that was fast consuming her vitals, made her restless, irritable and suspicious. With the means he had, we see no cause to complain of the conduct of the trustee. But if the trust were valid, the remedy for a breach of trust, or a failure to perform his duty by the trustee, would be simply the removal of the old trustee and the appointing of a new one,—not the setting aside of the deed of trust.

There is evidence' given by Brower and by Mrs. Brown, and to some extent by Mrs. Harris, (Mrs. Brown’s daughter,) and it may be, also, by others, not in harmony with the conclusions we have expressed. To have quoted .and commented on that evidence fully, would have extended this opinion, already much too long, to an unreasonable length. All the evidence has been carefully considered, but that not in harmony with the conclusions we have expressed was not thought to overcome the evidence to which we have alluded.

We see no cause to disturb the decree below, and it is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    In the matter of the Petition of William Ennor.

      Filed at Ottawa November 20, 1882.

    1. Appeal—what involved—judgment refusing to discharge debtor from, imprisonment. Where one imprisoned for debt upon a charge of fraudulently disposing of his property, and also for unjustly refusing to surrender his property, had a trial of these questions before a jury in the county court, resulting in a verdict of not guilty of fraud, but guilty of the other ground of imprisonment, upon which the county court remanded him back to the custody of the sheriff, and he appealed from- the order remanding him, it was held, that on the trial of the appeal the question of fraud was -not before the circuit court for investigation, but only the question of the refusal of the debtor to surrender his property, and that it was error to admit evidence as to the question of fraud, that not being involved, and having been settled by the verdict in the debtor’s favor.
    2. Imprisonment fob debt—proper judgment when debtor is found not guilty on one charge and guilty of another. On the trial of the issues in the county court whether a debtor was guilty of fraudulently disposing of his property, and was also guilty of unjustly refusing to surrender his property in satisfaction of the judgment against him, the jury found the first issue for him, and the second against him: Held, that the court might properly have entered two judgments, one discharging the debtor from the first-alleged cause of imprisonment, and remanding him on the second, which thereafter, in case of no appeal by the creditor, would constitute the sole ground of his detention. But a simple judgment remanding the debtor to the custody of the officer will have the same effect-, and an appeal by the debtor from such order brings up for retrial only the cause of imprisonment for which he was remanded, and the verdict of not guilty as to the charge of . fraud, unappealed from by the creditor, is conclusive on that charge, and it can not be again tried on the debtor’s appeal.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding.
    At the September term, 1880, of the Jo Daviess county court, William Ennor presented his petition, under the Insolvent Debtor’s act of this State, for discharge from imprisonment in jail under a ca. sa. execution upon a judgment for debt. The petition made the affidavit upon which the execution issued, a part thereof, which affidavit charged that Ennor had fraudulently disposed of his property, and had unjustly refused to surrender his property in satisfaction of the judgment. The petition averred that petitioner was not guilty of said charges, and asked for a jury to pass upon them. A jury having been impaneled for the purpose, returned a verdict finding petitioner not guilty of the charge of fraud, and guilty of unjustly refusing to surrender his estate in satisfaction of ,the judgment. After overruling a motion for a new trial by petitioner, the court entered the following judgment: “Now at this day comes the said William Ennor, by his attorneys, and the motion for a new trial in said cause heretofore made by said William Ennor having been heard by the court, the court overrules the said motion' for a new trial; and the jury impaneled in said cause having by their verdict found the said William Ennor guilty of unjustly refusing to surrender his estate in satisfaction of the judgment, it is therefore ordered and adjudged by the court that said William Ennor be remanded into the custody of the sheriff of Jo Daviess county, Illinois.”
    Ennor appealed to the circuit court, and on trial there the jury returned a verdict finding him guilty of unjustly refusing to surrender his estate in satisfaction of the execution, and also found him guilty of fraudulently disposing of his property, with a design of hindering and delaying his creditors. A motion for a new trial having been made and overruled, the circuit court rendered judgment affirming the judgment of the county court, and remanding petitioner into the custody of the sheriff. On appeal, the Appellate Court for the Second District affirmed the judgment of the circuit court, and the case comes here for review.
    Mr. R. H. Clellan, and Messrs. Hodson Bros., for the appellant.

      Mr. M. G. Johnson, and Messrs. Spensley & Baum, for the contestant.
    Messrs. D. & T. J. Sheean, for the appellant in reply.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Upon the coming on of the trial in the circuit court, the counsel for the petitioner objected to the introduction of any testimony upon the first question, as to Ennor’s fraudulently disposing of his property, for the reason that he had been tried on that charge in the county court and acquitted by a jury, and no appeal had been taken therefrom, and also asked the court to rule that there was but one issue to be tried by the jury, to-wit, whether Ennor had unjustly refused to surrender his property in satisfaction of the judgment; but the court overruled the objection to the introduction of testimony, and refused to rule as asked, to which exception was taken. The court then, against the objections of Ennor, admitted evidence to go to the jury upon both of said questions. This ruling of the court is assigned as error.

Section 5 of the Insolvent Debtor’s act, under which this proceeding was commenced, provides that when any debtor is arrested or imprisoned for debt upon charge of fraud, or upon execution on the charge of refusal to surrender his estate for the payment of any judgment, he shall be entitled to have the question whether he is guilty of such fraud, or has refused to surrender his estate, tried by a jury. If the jury shall find the debtor not guilty of such fraud or refusal, as the case may be, the debtor shall be discharged from the arrest or imprisonment. If the debtor shall be found guilty of such fraud or refusal, he shall be remanded to the custody of the proper officer. The two questions, of fraud and refusal to surrender, were tried in the county court by a jury, who found a verdict of not guilty as to the first, and of guilty as to the last. We think that verdict was a conclusive determination of the question' of the fraudulent disposition of property, and that it was not open to inquiry in the circuit court. A verdict for the same cause of action between the same parties is absolutely conclusive. (1 Starkie on Evidence, 198.) Here is a verdict of not guilty upon a question. It has never been set aside, and there has been no appeal in respect of it. To litigate the same question over again would be against all legal principle. Expecllt reipublicce ut sit finis litium.

It is contended that the appeal brought up the whole original case, and that it was to be tried de novo in the circuit court, as if there never had been a trial in the county court. The statute does not provide for this. It directs that the circuit court shall proceed to hear and determine the matter, and at the request of either party impanel a jury to try the facts. Such matter and facts we understand to be those which are involved by the judgment, those upon which it rests for its support or defeat, and in this case it was the one cause of imprisonment for unjustly refusing to surrender property. The original imprisonment was upon the two charges made in the affidavit for the ca. sa., "of fraudulently disposing of property and unjustly refusing to surrender property. Under the statute the debtor was entitled to have the question of the truth or falsity of" these charges tried by a jury. The trial was had, with a verdict of not guilty as to the charge of fraud, and of guilty as to. the other charge. The statute provides, if the debtor be found not guilty heshg-ll be discharged from the imprisonment; if found, guilty he shall be remanded to the custody of the proper officer. The verdict of not guilty rendered not being set aside, and no appeal in respect of it, the debtor was discharged from imprisonment as to the charge of fraud, of which he was found not - guilty, and that charge was thenceforth entirely eliminated from the case, and was as if it never had been made, and the debtor was remanded to custody upon the charge as to which he was found guilty,—that of unjustly refusing to surrender property. Thereafter that was the sole cause of imprisonment. The order remanding into custody was for that cause, and so professed upon its face. That was the order appealed from, and the sole cause for imprisonment to be tried in the circuit court was the unjust refusal to surrender estate. It is as if separate judgments had been rendered upon the verdict,—as there well might have been,— one of discharge as to that cause of imprisonment where the finding was not guilty, and one remanding into custody as to that cause in respect of which the finding was guilty. And if, in such case, an appeal from either one of the judgments had been taken, it must be conceded, we think, the matters and facts pertaining to the two judgments would have been different respecting different causes of imprisonment, and that on the trial of such appeal from one of the judgments in the circuit court, the matter and facts pertaining to the other would not be involved, and would be irrelevant. Although there was in form but one judgment here, it was a judgment of imprisonment for the one cause of unjustly refusing to surrender property, and the appeal was from a judgment for that cause of imprisonment and on the verdict of guilty, and not from a judgment for the cause of imprisonment for fraud, rendered on the verdict of not guilty. In order to a retrial of the question of fraud, the creditor himself should have taken an appeal. Not having done so, we think that question was not at all involved upon the present appeal.

It" is said by appellee’s counsel, that • even if there was properly but one issue before the circuit court, (that as to the refusal to surrender property,) yet as the judgment would be the same on one issue as it would be on both, to-wit, a remanding of the debtor to the custody of the sheriff, there was no prejudice done .to the appellant by admitting proof on the issue of fraud. Such proof was irrelevant. Evidences not pertinent to the issue in the case should not be admitted, and the testimony here introduced for the purpose of showing fraud was calculated to greatly prejudice appellant’s ease Avith the jury. We can by no means say that the error of admitting that testimony Avas a harmless one. The injurious character of the evidence was aggravated by the giving of instructions upon the question of fraud, as if it were an issue in the case.

For error in the ruling of the court, above mentioned, the judgment of the Appellate Court must be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Walker

text:
    The Peoria and Pekin Union Railway Company et al. v. The Peoria and Farmington Railway Company.

      Filed at Ottawa November 20, 1882.

    1. Appeal—lies directly to this court in proceeding to condemn. By section 12 of the Eminent Domain act, an appeal is expressly given directly to this court from the judgment of the trial court, in a proceeding to condemn land for right of way, and there is nothing in the Practice act that takes away this right.
    2. Corporate existence—pro of thereof in a collateral proceeding. The general rule is, that in all collateral proceedings at the suit of an alleged corporation, the introduction of the charter of the company, and proof that the company is exercising the franchises granted, afford sufficient evidence upon the question of the corporate existence of the company. In such case it is. not required to show that the company is a corporation de jure.,
    3. Same—what is a collateral proceeding. A proceeding for the condemnation of the right of way for a railroad is a collateral proceeding, so far as concerns the question of the corporate existence of the company seeking the condemnation.
    4. Same—former decision. In this case a railroad company sought to condemn a right of way, under the Eminent Domain act. As proof of its corporate existence the company gave in evidence the special charter under which it claimed to have been organized, and also gave evidence of user of the franchises granted by the charter. This was held sufficient to authorize the proceeding.

      5. But it was contended the case of Allman v. Havana, Rantoul and Eastern R. R. Co. 88 111. 521, holds a different doctrine; that in that ease it was held, in a suit on a subscription for stock to the company, the defendant could interpose as a defence that the requisite amount of stock had not been subscribed to authorize the company to collect assessments on subscriptions. That decision was under the general Railroad law, and this is under a special charter. It was considered, if this'does not distinguish that case from this, then the former must be limited to cases arising under the general Railroad law, or must be overruled, as the court, on more mature reflection, are convinced it is repugnant to the general doctrine applicable to cases like the present.
    6. Eminent domain—elements of damage—right of way for railroad across the track of another railroad. The law requiring railroad trains to stop before crossing another railroad, being a mere police regulation, and subject to repeal at any time, the damages sustained by a railroad company for the delay, inconvenience and trouble in stopping before crossing another road seeking a condemnation for right of way across the track of an existing railroad, are too vague, indefinite and contingent to be an element in the assessment of damages, in favor of the road to be so crossed.
    7. Nor is the increased danger arising from the crossing of the track of one railroad by the trains of another, to be considered as an element of damage in such proceeding. To allow damages on such a claim would violate the rule that they can not be allowed on mere conjecture, speculation, fancy or imagination,—they must be real, tangible and proximate.
    8. Same—former decision. Nor is this rule in conflict with what was said in Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21, where it was held that only such injury and inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damage.
    9. Same—generally. Direct and immediate damages alone are’recoverable in this class of cases, and remote or merely incidental damages can not be considered. It is that injury which depreciates the value of the property, whether by taking a portion of it or rendering the portion left less useful, or, in case of a railroad company or other corporate body, less capable of transacting its business,—such a hindrance and inconvenience as to occasion loss, or diminish and limit its capacity to transact its business by decreasing the power to transact as much, or necessarily increasing the expense of what may be done, although not diminished; and this hindrance must produce immediate or future loss. If the new structure, when made, does not necessarily abridge the owner’s capacity without increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, unless the property is depreciated in value these are not elements of damage.

      10. Same—damages to elevator. Where an elevator used for the deposit of grain stands on ground considerably above and some distance from a river upon which grain was carried from the elevator, and it appearing that the grain was transferred from the elevator to boats at the wharf through an inclined chute or tube, called a “conductor,” and that a railroad for which a condemnation was sought was proposed to be located between the elevator and the river, and was to be constructed on trestles, and elevated entirely above the chute or conductor, so as not to interfere with the transferring of grain from the elevator to the river, it was held, there was no loss to the owner of the elevator, and therefore could be no damage.
    11. Same—plans of road as evidence. In a proceeding to condemn a right of way for a railroad over a strip of land between an elevator and a river, the plans by which the company proposes to build the road, as showing the track is to be laid upon trestles elevated so high as not to interfere with the transfer of grain from the elevator to the river in chutes or conductors, are admissible in evidence on the question of damages and compensation claimed.
    12. Same—nominal damages. In the assessment of damages for the taking of property for the right of way, the amount of the damage must be shown,—not necessarily with precision, but approximately. If damage is shown, but the amount is not approximately made to appear, no more than nominal damages can be allowed.
    13. Evidence—weight of. In the assessment of damages for a right of way, the jury will be warranted in giving but slight, if any, weight to the evidence of mere experts, based simply on theory and conjecture, as to the damage the construction of a railroad between an elevator and river would be to the owners of the elevator.
    14. Ebbob will not always reverse—improper instruction to jury. An instruction stating a mere abstract legal proposition having no application to the evidence, though not announcing a correct rule of law, is not such an error as to call for a reversal, when the court can see that it could not have operated to the prejudice of the other party, or have misled the jury.
    Appeal from the County Court of Peoria county; the Hon. John C. Tates, Judge, presiding.
    Messrs. Stevens & Lee, and Mr. John B. Cohn, for the appellants:
    The petitioner failed to prove its corporate existence. That such proof was necessary, see Allman v. Havana, Rantoul and Eastern R. R. Co. 88 Ill. 521.
    The court .erred in giving appellee’s eighteenth instruction, telling the jury that as against damages to defendants’ road or property, aside from that taken, they might offset benefits to the entire property. Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.
    The court also erred in charging the jury that the defendants could recover no damages by reason of being compelled, in accordance with the statute, to stop their trains at the proposed crossing, and that no damages could be awarded by reason of any annoyance, damage, delay or expense caused by being compelled to stop, or for the increased danger of collisions. Lake Shore and Michigan Southern Ry. Co. et al. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21.
    Messrs. Worthington & Page, for the appellee:
    This court has no jurisdiction of this appeal. Jurisdiction of subject matter can not be conferred by consent. Dunn v. Rogers, 4 Gilm. 131; Randolph County v. Ralls, 18 Ill. 29; Leigh v. Mason, 1 Scam. 249; Peak v. People, 71 Ill. 278.
    The expense of stopping and starting appellants’ trains is not a proper element of damages. The crossing does not compel them to stop their trains, but the State law does. This law is a mere police regulation, liable to repeal or modification at any session of the General Assembly. Lake Shore and Michigan Southern R. R. Co. v. Cincinnati, Sandusky and Cleveland R. R. Co. 30 Ohio St. 604; Boston R. R. Co. v. Old Colony R. R. Co. 3 Allen, 142; Old Colony R. R. Co. v. Plymouth, 14 Gray, 115; Massachusetts R. R. Co. v. Boston R. R. Co. 121 Mass. 124; Boston R. R. Co. v. Old Colony R. R. Co. 12 Cush. 605; Eastern R. R. Co. v. Boston R. R. Co. 111 Mass. 125.
    The damages from the increased danger of collisions in consequence of a crossing, are too conjectural,- speculative and uncertain. Jones v. Chicago and Rock Island R. R. Co. 68 Ill. 380; Eberhart v. Chicago, Milwaukee and St. Paul R. R. Co. 70 id. 347; Page v. Chicago, Milwaukee and St. Paul

      R. R. Co. id. 324; Slater v. Burlington and Mt. Pleasant Plank Road Co. 1 Iowa, 393; Henry v. Dubuque R. R. Co. 2 id. 300.
    The true test upon the question of damages is, how is the . market value of the whole affected ? If it is not decreased beyond the actual value'of the part taken, there is no present pecuniary damage. Page v. Chicago, Milwaukee and St. Paul R. R. Co. 70 Ill. 324; Haslam v. Galena and Southwestern R. R. Co. 64 id. 353; Eberhart v. Chicago, Milwaukee and St. Paul R. R. Co. 70 id. 347; Edmunds v. Boston, 108 Mass. 544; Searle v. L. and B. R. R. Co. 63 Pa. St. 93; Park Comrs. v. Dunlevy, 91 Ill. 49; Lafayette R. R. Co. v. Winslow, 66 id. 219.
    It was" competent to give in evidence the plans of the road, in order to show there would be no obstruction to the use of the elevator. Jacksonville and Havana R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, J. and C. R. R. Co. v. Mitchell, 47 id. 165; Peoria and Rock Island R. R. Co. v. Birkett, 62 id. 332;. City of Elgin v. Eaton, 83 id. 535; Hyde Park v. Andrews, 87 id. 229.
    The same rule governs here as in condemnation by a telegraph line. The fee is not taken, and only an easement for the purposes for which condemnation is sought. Lockie v. Mutual Union Tel. Co. 103 Ill. 401.
    Proof that petitioner is a de facto corporation is all that is required. McAuley v. Columbus, Chicago and Indiana Central Ry. Co. 83 Ill. 348.
    The introduction of the charter and proof of user are sufficient to prove the existence of a corporation under the plea of nul tiel corporation, when the corporation is collaterally attacked. Mendota v. Thomson, 21 Ill. 197; Hamilton v. Carthage, 24 id. 22; Tisdale v. Town of Minonk, 46 id. 9; Mitchell v. Deeds, 49 id. 416; Kettering v. Jacksonville, 50 id. 39; Meeker v. Chicago Cast Steel Co. 84 id. 276; Utica Ins. Co. v. Tilman, 1 Wend. 555; Graves v. Bank of Mississippi,
      7 Eng. (Ark.) 769; Bank of Manchester v. Allen, 11 Vt. 302; Reynolds v. Myers, 51 id. 44.
    It is a general rule that the existence de jure of-a corporation acting as such can not be questioned collaterally. State v. Carr, 5 N. H. 367; Thompson v. Candor, 60 Ill. 244; Rice v. R. I. and A. R. R. Co. 21 id. 93; Tarbell v. Page, 24 id. 46; Baker v. Backus, Admr. 32 id. 79.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee, the Peoria and Farmington Bailway Company, filed petitions for the purpose of _ procuring the right of way across the.tracks and grounds of the Peoria and Pekin railway, and two other companies. The cases were consolidated, and tried .as one by the court and a jury. A verdict was found for $1800 damages. A motion for a new trial was entered, overruled, and an order entered under the statute. The defendants thereupon bring the ease to this court by appeal, and seek a reversal.

The first question presented and urged is, that this court has no jurisdiction to hear the case; that the appeal should have been taken to the Appellate Court; that there is neither a freehold nor a franchise involved; that the condemnation only confers an easement to use the property condemned for corporate purposes during the existence of the corporate body; that when the body ceases to exist the easement terminates. In answer to this objection it is only necessary to refer to the 12th section of the Eminent Domain act, which in express terms gives an appeal; and in the ease of Kankakee and Seneca R. R. Co. v. Straut, 101 Ill. 653, it was held that nothing in the Practice act has taken away the appeal to this court, as given by that section. That disposes of this pbjection.

It is next insisted that the petitioning company failed to prove a regular and legal organization under its charter. It obtained its charter in March, 1869, and it is insisted it was required to prove that it had complied with all the requirements of its charter within the period limited by section 2 of article 11 of our constitution, which provides that all charters then existing under which an organization shall take place, or shall not be in operation within ten days from the time the constitution took effect, should thereafter have no validity or effect whatever; that inasmuch as the charter of appellee was granted before that time, it should have been shown that an organization was had within the time thus limited,—in other words, that appellee was a corporation cle jure. On the other hand it is claimed that under the plea of nul tiel corporation the proof of a corporation cle facto answers the plea. The general rule is, that in all collateral proceedings the introduction of the charter, and proof that the company is exercising the franchises granted, are sufficient. The evidence in this case was therefore sufficient to authorize petitioner to proceed to condemn the right of way.

But it is said that this is not a collateral proceeding. This is a misconception. The suit was brought to acquire the right of way on which to place the company’s tracks. It is true this was an exercise of a franchise contained in the charter, and the same is true when the company sues on a contract, or for a trespass to its property. The right to sue and defend suits is a franchise conferred by the charter.

It is, however, urged that the case of Allman v. Havana, Rantoal ancl Eastern R. R. Co. 88 Ill. 521, holds a different doctrine; that in that ease it was held, in a suit on a subscription for stock to the company, the defendant could interpose as a defence that the requisite amount of stock had not been subscribed to authorize the company to collect .assessments on subscriptions. That decision was under the general Bailroad law, and this is under a special charter. This special charter, by the fifth section, fixes "the amount of capital, and authorizes an organization when $10,000 is subscribed and ten per cent is paid in, whilst under the general law an organization cán not be 'had until the whole of the capital stock is subscribed. If this does not distinguish that case from this, it must be limited to cases arising under the general Railroad law, or must be overruled, as on more mature reflection we are convinced it is repugnant to the general doctrine applicable to eases like the present. There was, in addition to the charter, evidence of user of the franchises granted by the charter, and that was sufficient to authorize this proceeding.

It is insisted that the colirt erred in giving appellee’s instructions. This is appellee’s sixth instruction:

“The court instructs you that respondent railway companies can not recover any damages against the petitioner in this case on account of having to stop and start their respective trains at the proposed crossings of the different railroad tracks, in order to comply with the law of the State, and the jury will find no damages against the petitioner on account of any annoyance, damage, delay or expense caused simply by so being compelled by law to stop before passing any of the proposed crossings.”

Appellants claim that this instruction misstates the law, and the jury were misled by it. The law requiring trains to stop before reaching and crossing another road, is a police regulation, and may be maintained or repealed at the pleasure of the legislature. No one can say it is permanent, or how long it may continue. It is subject to repeal at any session of the General Assembly. It would therefore be mere matter of conjecture as to what, if any, damages would be sustained by appellants for the delay, inconvenience and trouble produced by complying with the requiremetits of the statute. Independent of the statute the same duty would be imposed, and it is too vague and uncertain to be an element of damages. Lake Shore and Michigan Southern R. R. Co. v. Cincinnati, Sandusky and Cleveland R. R. Co. 30 Ohio, 604; Boston R. R. Co. v. Old Colony R. R. Co. 3 Allen, 142; Old Colony R. R. Co. v. Plymouth R. R. Co. 14 Gray, 155; Massachusetts R. R. Co. v. Boston R. R. Co. 121 Mass. 124; Boston R. R. Co. v. Old Colony R. R. Co. 12 Cush. 605. There was, therefore, no error in giving this instruction, as it embraced the law as applicable to the case. What has been said'in reference to appellee’s sixth instruction applies to its seventeenth instruction, and disposes of the objections urged against it.

It is claimed that the court erred in excluding as an element of damages the increased danger of crossing appellants’ road on grade, by its sixteenth instruction. If this would increase the danger, it would require increased care and precaution of the employés of the company necessary to avoid it.' Accidents can be avoided by proper care. Nor are we warranted in presuming the employés would be negligent of their duty. If they observe their duty, a collision need never occur. To allow damages on this claim would violate the rule that they can not be allowed on mere conjecture, speculation, fancy or imagination,—they must be real, tangible and proximate. Nor is this rule in conflict with what was said in Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21. In that case it was held that only such injury apd inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damages. ' But nothing should be allowed for imaginary and speculative damages, or such remote or inappreciable damages as the imagination may conceive. The doctrines of that case then, do not condemn the sixteenth instruction, nor do they condemn the seventeenth.

Direct and immediate damages are alone recoverable in this class of cases, and remote or mere incidental damages can not be considered. It is that injury which depreciates the value of the property, whether by taking a portion of it or rendering the portion left less useful, or, in case of a railroad company or other corporate body, less capable of transacting its business,—such a hindrance and inconvenience as to occasion loss, or diminish and limit its capacity to transact its business, by decreasing the power to transact as much, or necessarily increasing the expense of what may be done, although not diminished. And this hindrance or obstruction must produce immediate or future loss. But when the new structure is made, if it does not necessarily abridge the owner’s capacity without increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, unless the property is depreciated in value these are not elements of damage.

It is insisted that' the appellee’s eighteenth instruction is vicious. It informs the jury that as against the damages to appellants’ road or property, aside from that taken, the jury might set off benefits to the entire property; and if they found it to be damaged, yet if they found that' the construction and operation of the road would produce benefits equal to or in excess of the damages, then they should not find damages in favor of appellants, except compensation for the property actually taken,—and the case of Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290, is referred to as condemning this instruction. Conceding that to be true, still in this ease there was, it is conceded, no evidence on which to base this instruction. It was a mere abstract legal proposition, having no application whatever to the evidence in the case. This being true, we are unable to say it operated in the slightest degree to the prejudice of appellants. Had there been such evidence, the instruction would have been calculated to mislead the jury, and might have required a reversal; but so far as we can see, it was harmless. In such case it must appear or be highly probable that such an instruction has produced injury to appellants, before a reversal will be had.

It is claimed that the court erred in giving the fifth of appellee’s instructions. It informs the jury that the condemnation of the strip across the property on which elevator “A” is situated, will not deprive the owner of the use of the elevator as at present constructed and used, and that the jury should not allow any damages for depriving its owner of the use of the conveyer of grain from the warehouse. The evidence shows that this elevator stands on ground considerably above and some distance from the river; that in transferring grain from the elevator to boats at the wharf, an inclined chute or tube, called a '“conductor,” is used for the purpose. It also appears, from the evidence and plans for the construction of the track of the road across this lot, that the track will be on trestles, and elevated entirely above the chute, and will not, in the slightest degree, interfere with its operation, or with others that may be constructed in like manner. This being the case, there can be no pretense that appellants should be paid damages for injuries that are not or can be sustained. If there is no loss there is no damage.

But it is urged that appellee could not condemn the property to be used in common with the owner of the elevator. It is, however, conceded that the right of way across a railroad track may be condemned, and used in common by both roads; and why not land on which an elevator is situated, when the road and chute from the elevator are not on the same level, and each may be used for its several purposes at the same time, as completely as if the other was not there ? Appellee only desired to obtain the use of so much, and in such a manner, as would answer the purposes of its business, and to injure the owner of the elevator property as little as practicable. The law would not permit appellee to unnecessarily injure the owner of property thus appropriated, whether owned by a natural person or a corporate body, nor can the owner recover for damages that have not and will not be sustained.

But it is urged that this only appears from the plans on which appellee proposes to construct its track over this strip of ground, and that the plans may be altered, and therefore should not have been admitted in evidence. Such evidence has been held to be admissible in a number of cases: Jacksonville and Savanna R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, J. and C. R. R. Co. v. Mitchell, 47 id. 165; Peoria and Rock Island R. R. Co. v. Birkett, 62 id. 332; City of Elgin v. Eaton, 83 id. 535; Hyde Park v. Andrews, 87 id. 229. Under these authorities the evidence was admissible.

It is urged that the court erred in instructing the jury that if the evidence showed there was damage, but they were unable to ascertain the amount, then they should find for such damages a nominal sum. We perceive no objection to this, as a legal proposition. In this class of cases there is a rule by which to measure the damages. It is the loss sustained in dollars and cents, and the amount of the loss must be shown, together with its amount,—not necessarily with precision and accuracy, but approximately; and if damage is shown, but the amount is not approximately proved, there can be no more than nominal damages allowed.

It is claimed that under the evidence the finding was outrageously low. This would no doubt be true if the evidence of appellants’ witnesses were alone considered, especially of those called as experts. Their evidence, based on mere theory that did not stand the test of demonstration by actual experiment, placed the damages at vastly more than the jury allowed. The jury were fully warranted in giving but slight, if any, weight to their evidence, as it was based simply on theory and conjecture.

It is insisted that the jury did not even allow the value of the strip taken. The evidence, as it always is, was conflicting as to the value of tire land. That the land higher up, and above high water mark, was greatly more valuable, is certainly true; but this strip was between high and low water mark, and was therefore of comparatively little value. Men of experience and good judgment placed its value at much less than the jury probably allowed for it. The entire evidence considered, we are unable to say the verdict is contrary to the evidence, especially as the jury went upon and viewed the premises.

The entire record considered, we perceive no error for which the judgment of the court below should be reversed, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Morris Selz et al. v. Henry K. Buel.

      Filed at Ottawa November 20, 1882.

    1. Contract—for services to be paid by a share of net profits construed as to allowance of interest on loans as part of expenses. A contract for the employment of a salesman for a series of years provided that the salesman should be paid for his services annually a sum equal to one-fifth of the net profits of the business, which sum it was guaranteed should not be less than $7500 a year, and that at the end of each year the gross profits of the business should be ascertained, from which should be deducted the total expenses and losses incurred in such year in the business of the employers, and that a sum which should be equal to one-fifth of the residue should be the compensation, and "provided further that the house should be charged with ten per cent on the actual cost of certain goods manufactured elsewhere, on four months’ time, with interest, and that the salesman was not to be regarded as a partner in the business: Held, that in the absence of any special agreement, or custom having the force of law, to the contrary, the employers could not charge in the expense account the interest paid by them on temporary loans for money used in the business, and that it was no concern of the salesman whether his employers had the ready means to carry on the business, or would be compelled to borrow the whole or any part of it for that purpose.
    2. Where a salesman in a wholesale house is employed to be paid as his salary or compensation a sum equal to one-fifth of the net profits of the business of his employers at the place where he is employed, with a guaranty that such sum shall be equal to $7500 per year, the compensation so to be paid him will not be estimated as a part of the expenses to be deducted from the gross profits of the business. A different construction would require the salesman to pay one-fifth of his own salary after reaching $7500.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    In the fall of 1872, appellants, under the firm name of Morris Selz & Co., were engaged in the wholesale shoe and boot business at Chicago, and in the manufacture of shoes and boots at Joliet, with which they, in whole or in part, supplied their Chicago house. While the business of the firm was being thus carried on, on the 1st day of November of that year Henry K. Buel, the appellee, as party of the first part, entered into a written contract with the appellants, as parties of the second part, by the terms of which Buel engaged to enter the employment of the latter, and serve them as salesman in their house at Chicago, for a period of four years, from the 1st of January, 1873, for which the appellants agreed to pay him annually a sum' equal to one-fifth of the net profits of the business done at the Chicago house, and by a further provision of the contract guaranteed one-fifth of the net profits to be at least $7500 a year. The manner of conducting the business, and the mode of ascertaining the net profits, are specifically provided for in the agreement itself, as follows:
    “At the end of each year of said period the gross profits of the business conducted at the Chicago store of said firm shall be ascertained, and from the sum of said gross profits shall be deducted the total expenses and losses incurred in such year in said business,” and a sum which shall be equal to one-fifth part of the residue shall be said compensation; and in no ease shall said party of the first part receive or draw from the funds of said firm in any one month a sum greater than six hundred and twenty-five dollars ($625), until the expiration of each year, when his total annual compensation shall be determined. And said parties of the second part further covenant and agree, to and with the said party of the first part, that the entire product of the manufactory of said parties of the second part, at Joliet, Illinois, shall be shipped to and disposed of at their store in Chicago, and that said product shall be invoiced to said store at the rate of ten per cent above and in addition to the, actual cost of the same, on four months’ time, with interest at the rate of ten per cent per annum, to be charged the Chicago house of said firm after the expiration of four months from date of sale; but interest at the rate of ten per cent per annum is to be allowed the said Chicago house on all payments made within four months, such cost of said product being determined in the same way and upon the same basis that the cost thereof is determined at the present time.”
    It was also expressly provided in the agreement that Buel was not to be regarded as a partner in the business. At the expiration of this contract, on the 31st of December, Buel, by a verbal contract with the firm, agreed to continue in their service, as salesman, at a fixed salary of $7500 a year, which he did till the 31st of January, 1878, Butler having in the meantime, in November, 1877, withdrawn from the firm. At the end of this last service the firm, as then composed, had a settlement with Buel which was satisfactory to both parties. He gave them a receipt acknowledging payment in full for his services, and did not at that time interpose any claim on account of his services under the original written contract.
    During appellee’s four years’ service under that contract, appellants settled with him annually, at the rate of $7500 a year, they from year to year informing him the net profits of the business did not exceed that sum. It does not appear that appellants, during' this period, ever furnished appellee any formal exhibit or statement showing the amount of business done by the firm, its receipts, disbursements, expenses, etc., from which appellee could intelligently determine for himself whether he had received all the compensation for his services he was entitled to under the contract.

      Matters remained in this condition about eighteen months after the original contract had expired, when appellee filed in the Superior Court of Cook county the present bill, by which he seeks to compel appellants to make a full and complete exhibit of their entire business, receipts and expenditures during the existence of the contract, in order that the true amount of the net profits realized by the appellants may be made to distinctly appear, and to compel them to account to appellee for what shall appear to be due him from such exhibit.
    . As explanatory of appellee’s delay in taking steps to ascertain whether he was entitled to anything additional under the agreement, and of his apparent acquiescence in the settléments made by appellants to him from year to year with respect to the amount of net profits, the bill, among other things, contains the following statement: “That at the end of each year of said term he asked the active members of said firm for a statement of the net profits of the business of the said Chicago house, in order to ascertain the amount of his salary for that year, under the said agreement, and was always informed by them, and put off with the statement, that the net profits of the year were not sufficient to entitle him to any sum as salary in excess of the $7500, which he had then already drawn during the- year; that while he would be surprised and disappointed at such information and statements, he felt unwilling to dispute and deny their truthfulness, especially as he had no means or facilities to verify their untruthfulness; and not being able himself, for the reasons above stated, to make a personal, thorough and accurate examination of the books and accounts of the business, both of manufacturing and selling, he took no action in the matter, but' for the time relied and acted upon the information and statements so given and made to him, as true.” On the hearing, the Superior Court found the equities with the complainant, and entered the following decree fixing the rights of the parties, and directing a reference to one of the masters of the court for the purpose of stating the account, namely:
    “It. is hereby ordered, adjudged and decreed that the complainant is entitled to an account, as prayed for in his said bill; that this cause be referred to Benjamin D. Magruder, Esq., one of the masters of this court, to take an account of the compensation or salary earned by the complainant while in the employ of the defendants, under the terms of the agreement in writing between them, dated 1st November, A. D. 1872, for the years 1873, 1874, 1875 and 1876, respectively, and that in taking said account the said master will—
    “First—Ascertain for each of . said years separately the amount of the entire product of the manufactory of the said defendants at Joliet, Illinois, and charge so much thereof to the Chicago store of said defendants as was shipped by them to and disposed of at their said Chicago store, at the rate of ten per cent above and in addition to the actual cost of the same on four months’ time, with interest at the rate of ten per cent per annum, to be charged to the Chicago house of the defendants after the expiration of four months from date of sale by the said Joliet manufactory of the defendants to the Chicago house of the defendants, and interest at the same rate to be allowed to the said Chicago house on all payments made by it to the Joliet manufactory within four months after such sale, such cost of said product to be ascertained and determined by the master in the same way and upon the same basis that the cost thereof was determined at the date of said agreement, to-wit, on the 1st day of November, 1872.
    “Second—Ascertain the gross profits of the business of the defendants conducted at their said Chicago store for each of said years separately, and from the sum of said gross profits deduct the total expenses and losses incurred in such year in said business, and state and" report the amount of one-fifth part of the residue. And in so ascertaining the net profits of the business of the defendants conducted at their said Chicago store, the master will charge the said business for each of said years with the amount of the product of the defendants’ manufactory at said Joliet which was shipped to and disposed of at said Chicago store in each of said years, at the actual cost thereof, to be ascertained by the master as above directed. And in ascertaining the total expenses for each year of the business of the said defendants conducted at their Chicago store, the master shall not, in one computation, but shall in another, include any sum or sums of money paid by the defendants to the complainant during the year on account of compensation for his services to the defendants under said agreement for that year.
    “Third—If one-fifth part of the net profits of the business conducted at the Chicago store of the defendants, ascertained on the basis aforesaid, shall for any or either of the said four years exceed the sum of $7500, which the complainant admits has already been paid to him by the defendants under such agreement, the master will state the amount of such excess for every such year separately, with interest thereon from the end of such year. And if there shall be no such excess for any one or more of such years, the master will state that fact for every such year separately. ”
    The account, as stated by the master, shows appellants to be in arrears with appellee on account of his salary in the sum of $11,349.59,—$3224.46 being for interest on the annual balances to which appellee was entitled under the contract. Exceptions to the master’s report having been overruled, a final decree was rendered by the court in favor of appellee and against the appellants for the above sum of $11,349.59, and costs, and this decree, on appeal, was affirmed by the Appellate Court for the First District, and the appellants appealed to this court.

      Mr. Francis H. Kales, for the appellants:
    A settlement of an account will not be opened in equity upon the mere allegation that the party had no means of ascertaining whether the grounds of the settlement had been properly stated by the other party, without charging and proving specific acts of fraud. Parsons on Partnership, 560; Darthey v. Lee, 2 Y. & C. (E. & Ch. in Equity,) 5.
    There was nothing due complainant. He was only entitled to a share of the net profits. To arrive at this, interest on temporary loans paid by the firm should have been deducted from the receipts. Reynolds v. Mardis, 17 Ala. 32; Stewart v. McKichan, 74 Ill. 122; Weaver v. Upton, 7 Ired. L. 458; 1 Collyer on Partnership, sec. 318; 2 Lindley on Partnership, 787; Parsons on Partnership, 252, note y.
    In estimating the net profits to arrive at Buel’s compensation, his salary should have been deducted from the receipts. He had no interest in the profits. Berthod v. Smith, 24 How. 526; Hargrave v. Conroy, 4 C. E. Green, 19 N. J. 281.
    The interest decreed to Buel did not become due on an instrument in writing, and therefore he was entitled to no interest. Rev. Stat. chap. 74, sec. 2; Jassoy v. Horn, 64 Ill. 379; Ditch v. Vollhardt, 82 id. 134; Rishton v. Grissell, L. R. 10 Eq. 393.
    Messrs. Edsall, Hawley & Edsall, for the appellee:
    Where, .the compensation of a salesman depends upon the net profits of his employer, equity may take jurisdiction to decree an account. 1 Story’s Eq. Jur. secs. 441, 450, 452, 459; Craig v. McKinnay, 72 Ill. 312; Patten v. Patten, 75 id. 446.
    The right to an account of profits exists as well where an employé is to be paid in proportion to profits, as in cases where the controversy is between the members of a partnership. Bisset on Partnership, 14; Harrington v. Churchward,
      6 Jur. (N. S.) 576; Hargrave v. Conroy, 19 N. J. Eq. 281; Rishton v. Grissell, 5 L. R. Eq. 326.
    There was no error in refusing to deduct from the gross profits the money drawn by Buel during the year on account of the one-fifth part of the net profits, and the interest on temporary loans. Rishton v. Grissell, 5 L. R$. Eq. 326.
    Partners, as between themselves, are not entitled to interest on their respective capitals employed in the business, unless there is some agreement to that effect. 2 Lindley on Partnership, 786; Desha v. Smith, 20 Ala. 747; Tutt v. Land, 50 Ga. 339; Brown’s Appeal, 89 Pa. St. 139; Gilman v. Vaughan, 44 Wis. 646; Dexter v. Arnold, 3 Mason, 289; Tirrell v. Jones, 39 Cal. 655; Moss v. McCall, 75 Ill. 190; Gage v. Parmalee, 87 id. 334; Topping v. Paddock, 92 id. 92.
    ' This money being due on an instrument in writing, interest was properly allowed. Rev. Stat. chap. 74, sec. 52.
   Mr. Justice Mulkey

delivered the opinion of the Court:

There are but two questions presented by this record which, in our judgment, require special notice. One arises upon an exception to the master’s report, and the other upon the directions of the court to the master with respect to the manner of taking the account.

The master, in stating the account, refused to charge to the expense account interest paid by the Chicago house on temporary loans, and upon an exception taken by the appellants the master’s ruling was sustained by the Superior Court, and this is assigned for error.

It is first to be observed, that while the agreement between the parties is unusually full and specific in its details with respect to the manner of conducting the business and keeping the accounts between the two houses, we find no provision in it which in terms authorizes such a charge, so that if warranted at all, it must be upon general business principles, or by some local or special usage, of which both contracting parties must appear to have been cognizant, and may therefore be presumed to have contracted with reference to it. The only evidence which can be regarded as looking in this direction, is that which tends to show appellants had previously been in the habit of keeping their books in this manner ; but this, of itself, is not sufficient to establish a -local or particular usage which would be binding upon appellee, especially as there is nothing to show he had any knowledge of their previous method of doing business. The absence of any specific provision in the agreement upon this subject is the more significant in view of the fact the contract does expressly provide for charging interest under certain contingencies. It is therefore reasonable to presume that if the parties had intended that interest should be charged under circumstances other than those specified in the agreement, they would have said so. But they have not done this, and we are not authorized to do it for them.

Nor are we aware of any general usage or custom, having the force of law, which, under the agreement in question, would authorize charging to the expense account interest on temporary loans, as was attempted to be done in this case, hence we are of* opinion the master properly rejected these charges in stating the account. Under the agreement it was clearly the duty of the appellants to furnish the capital necessary to carry on the business contemplated by the contract, and whether they had it in ready means, or would be compelled to borrow the whole or a part of it, and if so, whether the loans would be for long or short periods, or whether the rates of interest would be high or low, were matters about which appellee, in a legal sense, had not the slightest interest or concern.

■ It is further contended by the appellants, that in ascertaining the amount of net profits made by the Chicago house, the compensation to be paid appellee for his services is to be estimated as part of the expenses of the concern. We do not think this was the understanding of the parties, and when considered in the light of ordinary practical business experience, we are of opinion the terms of the agreement do not admit of such a construction. It is true, by resorting to some of the more difficult processes of mathematics, or even of higher arithmetic, unused and unknown in common business transactions, effect might be given to the contract in the manner suggested by appellants; but a very small proportion of business men would be able to do so. The effect of this construction of the agreement would be to compel appellee to pay one-fil'th of his own salary after his share of the profits reaches $7500 per annum, while under the contract, as we understand it, he“ is to pay no part of it.

Moreover, while the agreement declares that a particular calculation shall be made for the purpose of ascertaining the amount of appellee’s compensation, the construction contended for requires the amount of compensation actually paid to be taken as a factor in a calculation, the only object of which is to ascertain what that amount is,—or, differently put, it requires the compensation to be first paid, and then directs a computation to be made to ascertain the amount of it. The contract in effect is, that appellee shall have, as compensation for his services, an amount equal to one-fifth of the net profits, let the sum be great or small, and if less than $7500 annually, the appellants, by a distinct and separate provision of the contract, bind themselves to make up the deficit. This latter provision does not at all affect the construction that is to be given to the other parts of the agreement. Supposing it had been omitted altogether, the contract then would have simply required appellants to pay appellee, as compensation, a sum equal to one-fifth of the net profits, whatever they might be, and it would certainly be difficult to distinguish a contract of this kind from a simple undertaking to pay one-fifth of the net profits. If we strike out from the contract the words, “a sum which shall he equal to, ” it would then read: “At the end of each year of said period the gross profits of the business conducted at the Chicago store of said firm shall be ascertained, and from the sum of said gross profits shall be deducted the total expenses and losses incurred in such year in said business, and * * * one-fifth part of the residue shall be said compensation,” etc. If the contract read in this manner, we presume there would be no pretense for the claim that appellee’s compensation should be treated as a part of the expenses in ascertaining its amount, and yet on principle we are unable to perceive why the insertion of those words would require a different construction. That form of expression was probably used with a view of negativing the idea that appellee’s compensation was payable only o.ut of a particular fund,— namely, out of the profits, as such. A promise to pay a sum of money equal to $1000, is in law simply an undertaking to pay $1000. The same legal consequences attach to either form of expression.

The decree of the Superior Court being in conformity with the view we have taken of the questions discussed, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.