author: Mr. Presiding Justice Windes

text:
    West Chicago St. R. R. Co. v. Fannie Lieserowitz.
    1. Credibility or Witnesses — Opportunities of the Trial and Appellate Courts. — Where the jury and the trial court see and hear the witnesses as well as the parties testify, and observe their appearance and demeanor upon the witness stand, they are in a much better position to determine their credibility than the Appellate Court is, by reading their evidence as it appears in the record.
    2. Instructions — Not Open to the Criticism of Telling the Jury to Disregard the Number of Witnesses. — An instruction in a case for personal injuries which tells the jury that when the court speaks of the preponderance of the evidence, such preponderance may not be entirely determined by the number of witnesses testifying to a particular fact or facts, and in determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing and knowing the things about which they testify, their conduct and demeanor while testifying, their interest .or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved on the trial, if any, and from all these circumstances the jury may determine upon which side is the preponderance of the evidence, is not open to the criticism of telling the jury to disregard the number of witnesses in determining the point as to the preponderance of the evidence.
    3. Same — Not Error to Refuse an Instruction When Covered by Others in the Same Case. —It is not error to refuse an instruction, the substance of which is substantially covered by other instructions given in the same case.
    4. Same — Where Argumentative, Properly Refused. — On the trial of an action for negligence resulting in personal injuries, an instruction which impliedly requires the plaintiS to prove all the allegations in his declaration before he can recover, and is argumentative, is properly-refused.
    5. Damages — Where $4,250 is Not Excessive. — A young woman under age was seriously injured by a fall in attempting to alight from a street car. and in consequence of her injuries she remained in bed for six or seven months. Prior to the accident she was in good health, but subsequently, and up to the time of the trial, which occurred nearly eight years afterward, her health was poor. A physician who treated her for her injury from about the time of its occurrence, for six or seven months, testified that she was suffering from nervous prostration traceable to her fall. It was held that a judgment for $4,250 was not excessive.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 30, 1902.
    Statement by the Court. — February 6, 1893, appellee, a minor, by her next friend, began suit against appellant to recover for injuries claimed to have been caused by its negligence. The case has been heard four times, and an appeal from the judgment on the third hearing was before this court (80 Ill. App. 248), where will be found a statement of the declaration and the proceedings had upon the first three hearings. On that appeal a judgment in favor of the railroad company was reversed and the cause remanded by reason of an erroneous instruction.
    Upon the last hearing before the Superior Court and a jury, the appellee, having attained her majority, recovered a verdict of §4,250 and judgment thereon, which is sought bv the railroad company to be reviewed on this appeal.
    On the hearing the court gave, on behalf of the appellee, with another instruction, the following:
    “1. The court instructs the jury that the plaintiff’s claim, as stated in the declaration, is that while she was a passenger on a street car of the defendant company she was, with due care and diligence, attempting to alight therefrom at the intersection of State street with Randolph, • after notice to the conductor of the car; and that the company, by its servants on the car, negligently failed to stop the car a sufficient length of time to allow the plaintiff to leave the car, but caused the car to be suddenly started, and that by reason thereof the plaintiff was thrown from off the car upon the ground and was thereby injured about her hack, womb, and divers other parts of the body; that she became sick and sore and permanently injured, and that she has suffered great pain.
    “ The court instructs the jury that it was the duty of the company to carry plaintiff as a passenger to her place of destination, and to permit her to alight from the car, giving her reasonable time to do so, when requested. So, if the jury believe from the evidence that the plaintiff was with due care and diligence, as a passenger, trying to leave the car at the intersection of State street with Randolph street, after notice to the conductor, and that the company, by its servants, negligently failed to stop the car a sufficient length of time to allow the plaintiff to alight therefrom, but caused said car to be suddenly started, and that by reason thereof plaintiff, without fault on her part, was thrown off said car upon the ground, and was thereby injured, then the jury should find the defendant guilty, and assess the plaintiff’s damages as such damages may appear from the evidence.
    “ 2. The jury are instructed that when the court speaks of the preponderance of the evidence, in these instructions, such preponderance may not be entirely determined by the number of witnesses testifying to a particular fact or facts. In determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing and knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements', in view of all the other evidence, facts and circumstances proved on the trial, if any; and from all these circumstances the jury may determine upon which side is the preponderance of the evidence.
    “ 3. Although the jury may believe from the evidence that the testimony of the plaintiff on the former trial of this cause was in some respects different from the testimony now given by her on this trial, this, standing by itself, would not warrant the jury to disbelieve the plaintiff’s testimom7, if the jury believe from the evidence that upon the former trial, for some reason appearing from the evidence, plaintiff was mistaken, and if on this trial she is telling- the truth; for it is the law that the party’s testimony is not to be disregarded simply by making a mistake in the evidence, if such appears to be so from the evidence. The credibility of the plaintiff as a witness, like the credibility of every other witness in the case, is to be judged by the jury from all the facts and circumstances in evidence, and by all the other tests mentioned in these instructions. ■
    “4. The court further instructs the jury that where witnesses testify directly opposite to each other on a material point, the jury are not bound to consider the point not proved. The jury has a right to and m.ay regard all surrounding circumstances proved on the trial, and give credence to one witness over the other, if the jury think such facts and circumstances warrant it. So, in this case, although the plaintiff, upon the question whether she fell from the car on the street, may testify one way, and the conductor and policeman may swear the other way, the jury are not bound to consider the point not proven. The jury may give credence to the plaintiff upon this point, if the jury believe the facts and circumstances bearing on the point in evidence warrant their doing so.”
    On behalf of appellant the court gave eighteen instructions and refused, among others, the following:
    “ 27. The burden of proof is not on the defendant to show how the plain tiff came to fall. If the preponderance of the evidence does not show that she fell by reason of the car being suddenly started," your verdict should be not guilty.
    “ 28. The court instructs the jury that you are not required to believe any statement to be a fact simply because any witness or witnesses has or have sworn it to be a fact, if you believe from the evidence that any witness or witnesses has or have willfully and knowingly sworn falsely to such alleged fact, even if such witness or witnesses be not directly contradicted with respect to such matter by some other testimony. In considering this case and in passing upon your verdict you are not required to set aside your own common observation and experience as men in the affairs of life, but, on the other hand, you have the right, in considering the testimony of this case, to call to your aid your own common observation and experience as men in the affairs of life, and you have the right, upon consideration of all the evidence in this case, in the light of your own common observation and experience as men in the affairs of life, to say where the truth lies upon any material fact in the case. If after such consideration of all the evidence, in the light of vour own common observation and experience as men in the affairs of life, you are unable to say that the plaintiff has proved the allegations of her declaration by a preponderance of the evidence, the court instructs you to find the defendant not guilty.”
    At the close of the plaintiff’s evidence appellant’s counsel asked the court to instruct the jury to find a verdict of not guilty, which request was denied, and on being renewed at the close of all the evidence, was again denied.
    John A. Rose and Louis Boisot, attorneys for appellant; W. W. Gurley, of counsel.
    Moses, Rosenthal & Kennedy, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

Appellant claims, but it is not argued, that the evidence is not sufficient to justify the verdict, and that the judgment should be reversed without remanding. From what we shall say under the next contention of appellant, we think it will be clearly apparent that the facts of the case present an issue which should have been determined by a jury.

Next, the claim is made that the judgment is contrary to the preponderance of the evidence. In this regard it is argued that because the plaintiff’s case, as to the circumstances of the accident, depends upon her evidence alone, not being corroborated by a single witness, and is contradicted by two witnesses for the appellant, whose testimony is consistent with itself and diametrically opposed to her evidence, the verdict can not stand, and therefore the judgment must be reversed as contrary to the weight of the evidence. Numerous cases of the Supreme Court, decided when it had jurisdiction to determine questions of fact in cases at law, and of the Appellate Courts since their organization, are cited, to the effect, in substance, that a verdict for the plaintiff, when resting only upon the testimony of the plaintiff, when that is contradicted not only by the defendant, but also by another witness or by the defendant’s employe and one or more witnesses, and there are no elements of probability to turn the scale, such a verdict will be reversed as contrary to or against the weight of the evidence. Among others the following cases are cited which support the proposition as stated, viz.: Koester v. Esslinger, 44 Ill. 476; Peaslee v. Glass, 61 Ill. 94; Belden v. Innis, 84 Ill. 78; R. R. Co. v. Gill, 37 Ill. App. 61; Bernstein v. Patterson, 33 Ill. App. 152; R. R. Co. v. Mahoney, 79 Ill. App. 53; R. R. Co. v. Byrne, 85 Ill. App. 488-90; Morgan & Wright Co. v. McCutcheon, No. 9462 of this court, not reported.

We have carefully read the evidence of the appellee and of the two witnesses Martin and Eieger, these being the only ones who testified to the circumstances of the accident, both in the abstract and in the record, and are of opinion that the verdict can not be said to be clearly and manifestly against the weight of the evidence. There is no conflict in the evidence as to appellee having been a passenger upon appellant’s horse car and that she fell and was injured by the fall. She says that when she “was in the act of getting off they rang the bell and the car began to jerk and 1 fell to the ground backward. * * * The conductor of the car picked me up. He asked me where I lived. He asked me whether I was hurt, so I answered him, ‘I don’t know,’ and he xvrote down my name.”

Martin, the conductor, says the plaintiff left the car at its rear end while he was standing on the rear platform, the car standing still; that he did not give the bell to go ahead; that the car had not started when she got off; that he did not see her fall; that she did not fall when she got off the car, but his attention was called by somebod} on the sidewalk; that somebody picked her up and he jumped off the car, went to her and asked if she xvas hurt, and that she said “No,” and that she gave him her name.

The witness Eieger, xvho was a police officer, stationed at the crossing, says that he saw the plaintiff fall in the street; that xvhen she fell the car xvas standing still; that after she fell the car started eastward, and that he was busy at the time xvith some xvagons that were there. On his cross-examination he said that he had not seen her before she fell; also that he was in a position where he could observe anybody and everybody that got off there; that she stepped on a foot of a snowbank and slipped down — put her foot on the bank and slipped down on one knee; did not fall over; and again that there were a number of wagons there behind the car which he watched.

It is impossible, without copying the evidence of these two witnesses, to give a full understanding of it, and the different circumstances to which they testify. It must be read in the transcript of the record to be appreciated. ' It is contradictory in several respects, notably as to whether plaintiff fell from slipping on a snowbank. The conductor says the pavement was muddy and slippery; that it was snowing — had just started to snow; the snow started a few minutes before and there was not much snow on the ground; while the policeman says, “The snow was piled up there, and there might have been a foot of a snowbank there.” The conductor says he did not pick up the plaintiff, while the policeman says that he spoke to her and that the conductor had already helped her. The conductor sa3s the plaintiff was crying. That she fell, is not contested. The clear preponderance of the evidence is that she was hurt as the result of the fall, but the conductor testifies that when he asked her whether she was hurt she said “ No.” The policeman does not say that she was crying, but that he vrent to her and asked her if she was hurt and “she said one of her legs, her knee, I think, hurt her.” If plaintiff fell when she had walked almost the length of the car after she left it, as testified to by the conductor, it seems remarkable that the conductor should have been so solicitous about plaintiff’s being hurt that he would offer to take her to a drug store when there were ladies there present, as is shown by his evidence. His solicitude in that regard is consistent with apprehension on his part that he might possibly be blamed. And if so, what could the blame have been but for starting the car as plaintiff says was done ? The jury and the trial court saw- and heard these witnesses, as well as the plaintiff, testify, could observe their demeanor and appearance upon the stand, and were therefore in a much better position to determine their credibility than are we by reading the evidence as it appears in the record. The driver of the street car was not called as a witness. This, so far as we can find in the record, is not explained and is not without significance. We do not feel justified in disturbing the verdict as being against the weight of the evidence.

Complaint is made that the court struck out the evidence of the conductor that he did not make any report to the company at the time of the plaintiff’s having fallen. If there was any error in this regard, and we are inclined to think there was not, we do not regard it as sufficient to justify a reversal.

The four instructions quoted in the statement, which were given for appellee, are criticised as being argumentative and erroneous in other respects, especially the second instruction, which, it is claimed, tells the jury to disregard the number of witnesses in determining the preponderance of the evidence, and that the third instruction was not justified, because there was nothing in the evidence to show what the plaintiff or any one else testified to on a former hearing.

We do not regard these instructions so far argumentative as to make them erroneous, especially in view of the very full and favorable instructions given on behalf of appellant, eighteen in number, some of which are not free from criticism in a like respect.

We do not regard the second instruction as being open to the criticism that it tells the jury to disregard the number of witnesses in determining the point as to the preponderance of the evidence. It does not exclude from the consideration of the jury that element, but impliedly concedes that this is a proper matter for their consideration. Similar instructions have been held not to be erroneous. Meyer v. Mead, 83 Ill. 19; R. R. Co. v. Fisher, 141 Ill. 614-26.

Moreover, if there could, be said to be a fault in this instruction in this respect, it is fully, as we think, obviated by instruction 18, given for appellant, on the same subject.

The criticism above noted as to the third instruction, while sustained by the record, in our opinion is no cause for a reversal. It was rather calculated to prejudice the plaintiff than the defendant, as it by implication states that her testimony on a former trial was different from what it was on this trial, when that, as a matter of fact, does not appear from the record'. The other criticisms made of these instructions, as we think, need no special mention, since they do not present any reversible error, nor are they of special importance.

Appellant’s instruction ISTo. 27, refused, was, in our opinion, fully covered by instructions 7 and 8 given for appellant; and even if it is not, we think that they, considered in connection with instructions 9, 11 and 12, which were given for appellant, fully instruct the jury upon the point of the refused instruction.

We think appellant’s refused instruction IÑTo. 28, should not have been given. Besides being subject to criticism as argumentative, it impliedly requires the plaintiff to prove all the allegations in her declaration before she could recover. There are allegations in the declaration without the proof of which there might be a recovery. Batchelor v. Union S. Y. & T. Co., 88 Ill. App. 395-400.

The essential part of the instruction, in so far as it is free from argument, is fully covered by instruction 20 given for appellant.

Lastly, it is' said that the damages are excessive, but to this we can not yield our assent. As we have said, we think the clear preponderance of the evidence is that the plaintiff was injured quite seriously as the result of her fall. She remained in bed six or seven months. Prior to her injury her health was good, but since then and up to the time of the trial, which was almost eight years after the injury, her health was poor. The expert evidence on both sides agrees as to that fact. Dr. Moyer, a physician of ■ wide experience in mental and nervous diseases, says that in 1897, when he first examined her “ she was nervous and hysterical; emotional; she cried easily; she was shaky and nervous;” and upon a hypothetical question embodying the essential parts of the evidence bearing upon her injury and the previous condition of her health,, said, on being asked, “that he would attribute her poor health to the accident.” Dr. Greenspahn, who treated her for the injury from about its date for six or seven months following,'testified fully as to her condition immediately following the accident. He says : “ My diagnosis was acute neurasthenia, or, to use a more popular expression, nervous prostration;” and that her “symptoms would certainly be traceable to the fall.” The expert evidence on behalf of the appellant, while in the main agreeing with that of the appellee, is, in substance, that her condition was not due to the injury. The whole evidence considered, we think the jury was justified in finding in accordance with the opinions of Doctors Moyer and Greenspahn, and that the amount of the verdict is sustained by the evidence.

Other minor matters presented in the arguments of counsel need no special mention in view of the conclusions reached. The judgment of the Superior Court is affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    Christopher B. Bouton v. Robert Cameron et al. Christopher B. Bouton and James G. Wright v. Same.
    1. Decbees — On Conflicting Testimony. — The presiding judge of the trial court, who sees the witnesses, hears their testimony and observes their demeanor while testifying, is, other things being equal, better qualified to pass upon their credibility than is a court of review, from the mere reading of their testimony in the record; and in analogy to the rule in cases at law, courts have adopted the rule in chancery cases, that where the chancellor hears the witnesses testify in open court his findings of fact will not be disturbed unless clearly and manifestly against the evidence.
    2. Agents — Not to Gain a Personal Advantage. — An agent will not be permitted to gain a personal advantage in the matter of his agency to the detriment of his principal.
    3. Assignments — Of Mortgages, When Subject to Defenses. — The assignee of a trust deed in the nature of a mortgage takes it subject to all defenses which the grantor could make against the grantee, and he should for his own protection make inquiry of the grantor as to defenses existing, and as to whether there exists any reason why the amount secured should not be paid.
    4. Accommodation Paper. — Defined.—A. recognized definition of accommodation paper is, a negotiable or non-negotiable bill or note, made by one who puts his name thereto, without consideration, with the intention of lending his credit to the party accommodated.
    5. Subrogation — Not to be Invoked by a Volunteer. — One who is only a volunteer can not invoke the aid of subrogation, for such a person can establish no equity. He must have paid on request, as a surety, or under some compulsion made necessary by the adequate protection of his own rights. The loaning of money to discharge a lien is not sufficient to subrogate the lender to the. rights of the lien holder.
    Foreclosure. — Appeals from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 30, 1902.
    Heckman, Elsdon & Shaw and Lee & Hay, attorneys for appellants.
    Matz, Fisher & Boyden, attorneys for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

These are separate appeals from the same decree and have been consolidated for hearing and heard on the same record.

Appellant Bouton filed a bill to foreclose a trust deed executed by Robert Cameron and wife to Arthur C. Gehr, and appellant Wright filed a cross-bill in the cause, claiming under the trust deed, subject to the claim of Bouton. The cause has been heard twice in the Circuit Court. On the first hearing that court decreed in favor of the present appellants, but on writ of error from this court the decree was reversed and the cause remanded for reasons stated in our opinion in Cameron v. Bouton, 72 Ill. App. 264, to which opinion we refer for a partial statement of the cause. On the last hearing the court found that there was only $100 and interest due on the trust deed; the same being the balance unpaid of $1,000 lent by appellee Gehr to Cameron, after the execution of the trust deed, and decreed accordingly. The cause was heard on the testimony of witnesses and other evidence in open court.

The main question on the present appeals is as to the actual authority which Gehr had to borrow money on the note and the trust deed executed to secure the same. Eobert Cameron is about fifty years of age, and had some dealings with appellee Arthur C. Gehr, before the transactions in question. Gehr’s father had been the confidential adviser of Mrs. Cameron, and he succeeded to that relation. Gehr testified that five or six years before 1893, he did business for Mr. Cameron, that he knew him since 1884, and Mrs. Cameron prior to that year; that his father had done business for Mrs. Cameron. The evidence shows that the Camerons had implicit confidence in Gehr, that they advised with him frequently in regard to their affairs, and kept many of their papers at his office. He was engaged in the real estate business, as his father had been. Such being the relation between the Camerons and Gehr, Eobert Cameron sought Gehr’s advice with regard to the purchase of a piece of property in the city of Chicago which it is sufficient to describe as the Barry avenue property. It seems from the evidence that there was a mortgage on the property running to one Troost, to secure payment of. $5,000, and that Mr. Cameron, before going to see Gehr about the matter, had been negotiating for the purchase with one Scannel, who purported to represent the administrator of one Bruschke, deceased, to whose estate the property belonged, and who left minor heirs. Gehr told Cameron that the administrator could not sell the property, and that the better way was to purchase at the sale on foreclosure of the mortgage. Cameron was willing to pay $5,000 for the equity, and made an arrangement with Gehr to take care of the deal, as he says. Gehr, purporting to act as Cameron’s agent, attended the foreclosure sale of the property, bid the amount of the mortgage debt, and" became the purchaser. He took the certificate of sale in his own name, and as soon as he received it he sold it to appellant James G. Wright for the amount of the bid, and paid the amount of his bid with the money received from Wright.

Cameron did not know, until about the time of the expiration of the period of redemption, of the assignment of the certificate of sale. He supposed that Gehr had it in his possession. He testified that the arrangement with Gehr was that he, Gehr, would furnish the money; that Gehr told him he would put the deal through, that he always had plenty of money to loan at six or seven per cent. March 2, 1893, an agreement was made between Arthur C. Gehr and Charles Kriewitz, signed “ Arthur C. Gehr,” Charles Kriewitz, guardian of said minors.” The agreement recites the decree of foreclosure of the Troost mortgage of the Barry avenue property, the advertisement of sale, the sale, and states that Gehr attended the sale and bid $10,000 for the property, on condition that he, Gehr, would pay the mortgage debt,costs, etc., being the sum of $4,918.43, on or before the expiration of the time for redemption, if said property should not be redeemed. It was, by the agreement, further agreed that Gehr should pay into the Circuit Court $5,081.57, being the balance of said $10,000, in excess of the amount to be paid to the master by him, on receipt of a certificate of sale, provided Gehr might retain from the last mentioned sum interest at the rate of six per cent per annum, and such other sums as he might find it necessary to pay for the taxes of 1892 and 1893 on said property, and for insurance, “to the payment of which the said Arthur C. Gehr hereby agrees to bind, and hereby does bind himself, his executors, administrators and assigns, provided, nevertheless, that, the said property is not redeemed from the said sale at any time before the expiration of the time of redemption from said sale.”

This contract was involved and considered by the Supreme Court in Bruschke v. Wright, 166 Ill. 183, and the court held that, for the benefit of the minors, there should be a resale of the property, and it was so ordered. This was in accordance with the doctrine announced in Cheney v. Roodhouse, 135 Ill. 257, 265, that the court will sometimes adopt unauthorized acts of a guardian, if beneficial to the ward. The question whether the contract could be specifically enforced as against Gehr, was not raised or considered in the case, and we think it clear that it could not. First, the contract is the personal contract of Kriewitz. He, as guardian, could not bind either the person or estate of his wards-. Sperry v. Fanning et al., 80 Ill. 371, 375; Nichols v. Sargent, 125 Ib. 309.

The contract does not even purport to be a contract of the minors, by their guardian. That Kriewitz could not, as guardian, contract to sell or convey the real estate of his wards, requires no argument. 2 S. & C.’s Stat. 1896, p. 2085, Sec. 19. The contract does not in terms purport so to do. There is, perhaps, an implied contract on the part of Kriewitz that the property would not be redeemed from the sale, this being made a condition of payment by Gehr, but Kriewitz was powerless to make such agreement. Such being the circumstances, we think it plain that the contract could not be specifically enforced against Gehr, and also think that no recovery could be had against him in an action at law for a breach of it. Gehr paid nothing on the sale except $4,918.43, and nothing into the Circuit Court, as provided by the agreement. Mr. Cameron testified, in substance, that $6,000 was to be raised on the Wellington street property (which was Mr. Cameron’s lot, conveyed by the trust deed,) when a clear title should be procured to the Barry avenue property, in about fifteen months; that Gehr said he had plenty of money then, and did not want the property, but only security; that $5,000 was to be raised on the Barry avenue property, if the Wellington street property was not sold; that Gehr said this would be all right, and he would so fix it; that Gehr told him it was not necessary for him to attend the sale, and he did not; also that Gehr told him they wanted him to pay $10,000 down, but he would not, and in the latter part of March or 1st of April, Gehr told him that he had the certificate of sale, and that he, Cameron, did not learn of the assignment of the certificate to W right till June, 1894.

April 1, 1893, Robert Cameron executed a note payable to Arthur C. Gehr & Co., under which name Arthur C. Gehr did business, for the sum of $11,000, with interest at the rate of six per cent per annum, payable semi-annually in gold coin of the United States, to secure payment of which Mr. and Mrs. Cameron executed a trust deed of two pieces of property situated in Cook county, viz., lot 4 in Lawrence Proudfoot’s subdivision, etc., and lot 6 in the subdivision of lots 7, 8, 9 and 10, in Wrightwood, said .Wrightwood being a subdivision, etc. This is the trust deed sought to be foreclosed by complainant Bouton and cross-complainant Wright, the appellants here. Lot 4, above mentioned, is the property of Mr. Cameron, and lot 6 is Mrs. Cameron’s property, and the Circuit Court, on the first hearing of the cause, dismissed appellant Bouton’s bill as against lot 6 of Mrs. Cameron. On writ of error from this court, Mrs. Cameron was not served nor did she appear, and the decree, in so far as it dismissed the bill as to her property, was neither reversed nor affirmed. Cameron v. Bouton, 72 Ill. App. 279.

The purpose of the trust deed, the reason for its execution, is thus stated by Gehr: ■

“About early in April, 1893, after I had made this contract with Mr. Kriewitz, I suggested to Mr. Cameron that in case of his death — that he should give me security for my being obligated to carry out this contract with Mr. Kriewitz for property that I was not buying for myself and did not want. He thought that was a proper thing to do.”

Robert Cameron testified:

“The $11,000 note was given to secure Gehr against loss in case I might die, so as this property would not be left on his hands, and it was made out $11,000 in the place of $10,000; there was $1,000 to be spent on the house after I got possession of the property.”

If, as we think, the contract between Kriewitz and Gehr .was not binding on the latter, and could not be enforced either at law or in equity against him, then Gehr had not, by the contract, incurred any obligation whatever, and needed no security on account of the contract, and he had not expended a penny of his own money in the purchase of the property at the foreclosure sale.

About two weeks after the execution of the trust deed Gehr loaned to Mr. Cameron the sum of $1,000, and the evidence is that Mr. Cameron paid that amount to Gehr, less $100, the last payment being $50, May 7, 1894. Cameron knew nothing of the loan' by appellant Bouton until he received a letter from Tod, Bouton’s agent or partner, of date May 5, 1894, which he testified he did not receive until the next day after the last payment. Therefore he was warranted in paying Gehr. McAuliffe v. Reuter, 166 Ill. 491.

We have thus stated the relation existing between 'Gehr and the Camerons, and Gehr’s actions in reference to their affairs, because we think the facts stated important to be borne in mind in considering the question whether Gehr was authorized to borrow money to the extent to which he did, on the Cameron note and trust deed.

The following paper was executed by the Camerons on the day of its date, at their residence in the city of Chicago, no one being present at the time of its execution, except Mr. and Mrs. Cameron and Gehr:

“Chicago, May 3d, 1893. Arthur C. Gehr, 114 Dearborn Street.
You are hereby authorized to borrow such an amount upon my note for $11,000, dated April 1,1893, secured by a trust deed, as you may require. The said note was deposited with you to secure you from loss by reason of your having signed a contract "for the purchase of the property on Barry avenue, for my benefit. I have received the sum of $1,000 on account of said note, and in giving you my consent to raising additional amounts on said note, I rely upon you to see that such amounts are paid promptly, though legally I authorize you to use said note for your benefit and accommodation at its face value, at your discretion.
Egbert Cameron, Sarah F. Cameron.”

This document is extraordinary in view of the facts, and exclusive of the testimony of what occurred at the time of its execution. One month and two days prior to its execution, the trust deed was executed, and Gehr and Cameron both testified that its object was to secure Gehr against any loss, in case of Cameron’s death, which he, Gehr, might suffer on account of any obligation which he may have incurred by the contract with ¡Kriewitz; yet the paper in question purports, in terms, to authorize Gehr to use the note for his benefit and accommodation, at its face value. Thus, in a little more than a month, the note and trust deed are diverted from their original purpose, and a use of them authorized which might deprive Mr. Cameron of financial ability to purchase the Barry avenue property, for the purchase of which he fully believed a valid and binding contract had been made by Gehr. Whether Gehr so believed, we think exceedingly doubtful. Gehr is an experienced real estate broker; that he has had numerous transactions in realty, is evidenced by the record; he testifii d that he told Cameron that the administrator of the Bruschke estate could not sell the property of the minors, and it seems incredible that he believed the guardian of the minors could sell it. The testimony of the Camerons is, in effect, that Gehr obtained their signatures to the paper of May 3d by fraud and deceit. The evidence as to what occurred at the time the paper was executed is substantially as follows: ¡Robert Cameron testified:

“ Gehr told me that be wanted to know if I would do him a little favor that morning, and I said I would if I could, and he said that he would like to use that note and the mortgage of mine for $1,500 for ninety days, and just about that time Mrs. Cameron came in, and I told her what Gehr wanted, wanted to use the note and mortgage for $1,500 for ninety days; and I says, ‘You know Mr. Gehr better than I do, if jmu say it is all right I am satisfied;’ and Mr. Gehr spoke up and he says, ‘ It would be quite an accommodation for me, Mrs. Cameron, if Mr. Cameron would let me use that note for ninety days for $1,500; ’ and she says, ‘ Well, Mr. Gehr, we owe you $1,000 now, and that would be only $500 more than what we owe you, and I certainly think you are good for $500.’ ‘ Well,’ I says, ‘ you are the doctor, and if you say so, I am satisfied;’ and then he spoke something about that there were some taxes and interest, or both, on the Lake View property of Walker’s and his, and then he told Mrs. Cameron, after that was all talked about a little, that he had brought the contract up, and showed it to her; he had brought the contract up for the Barry avenue property, that he had signed with the guardian, and it was nice property, no trouble about it but what we would get it. Then he said to me that he would like to have it in writing, to show that he was authorized to use this note for $1,500 for ninety days, and I said, All right,’ and he asked Mrs. Cameron it she would get him pen and ink and some paper, and she went and got him the pen and ink and the paper, and after he had wrote out what has been written on the paper, he asked me to sign it, and I signed it, and after I had signed the paper, two or three minutes, he said, Well, Mrs. Cameron, Í guess it would be better for you to sign it too;’ and so Mrs. Cameron signed, it. I don’t believe Mrs. Cameron read that paper. I didn’t; I couldn’t if I tried to. Nobody else was present at that time besides myself and Mrs. Cameron. Gehr didn’t read that paper to me, nor to Mrs. Cameron in my presence.”

The evidence is that Mr. Cameron could not read writing and could not write except to sign his name. Gehr, himself, so testified. Mrs. Cameron testified:

“ When Gehr came there, I guess Mr. Cameron let him in, and I came in in a few minutes, and spoke to him, and asked him how he was, and such as that. Then I went out again of the room in a few minutes, and I come in again, and Mr. Cameron spoke to me and told me what Gehr wanted, that he wanted the loan of $1,500 — used those words. That was in Gehr’s presence, and Gehr told — they both told me at the same time; they both told me about it. Gehr said that he would like to use those papers for $1,500, and of course I didn’t know that he could use them for any more but the $1,500. Mr. Cameron said, ‘ Would it be all right?’ and I said, ‘ Tes, we owed him $1,000 now, and that surely we could trust him for $500 more.’ So we told him yes, that he could do it. And then he asked me for paper and pen and ink, and I brought it, and he wrote this paper, and Mr. Cameron signed it. I didn’t read the paper; there was nothing sa,id about the reading of it; Gehr didn’t read the paper to me. Gehr told me that the paper was for getting, so that he could get the $1,500. Gehr stayed there, it might be twenty minutes or half an hour; might be half an hour. Something further was said by Gehr in reference to the Barry avenue property. He talked a little about that, because that was what Mr. Cameron and him was talking about when I went in; and he brought up some kind of paper, contract or something, I don’t exactly remember what it was. I gave it to you; I think you have it because Mr. Cameron took it back and gave it to you after-wards. Gehr said that was the contract for the Barry avenue property, and that we were going to get it, and such things as that. I don’t remember exactly just what he did say, but that is what — I can’t remember the very ■words he said. 1 don’t know whether anything was said with reference to the certificate at that time; he might have said it, but I don’t know; but he brought this paper up and I thought it was the Barry avenue property. In reference to this $1,500, something was said about the time by Gehr; it was for ninety days.”

Gehr testified as follows:

“But on the 3d of May, 1893,1 went out to Mr. Cameron’s house on Lili avenue, near Lincoln avenue, and told him that I wished to borrow some money upon that note, and asked him if I might do so, and he said ‘ Certainly.’ Mrs. Cameron was also there. I told him that alone. I wished to have that authority in writing to show any one to whom I might make application for the money. A "piece of paper was brought to me. I could not say whether it was brought bv Mr. Cameron or his wife. They were both present. The conversation was on the first "floor of Mr. Cameron’s house. I don’t remember whether it was the front or rear room. I wrote the paper that has just been handed to me, and that is marked Exhibit C, Cross-Complainant. I wrote the paper and then read it to both Mr. Cameron and his wife, and it was then signed by Robert Cameron and his wife. I don’t remember whether we were all sitting there in the room, but thejr were both there. 1 didn’t have it with me before I went. I wrote it in the house. The paper was brought me, and-also pen and ink, and the paper was then signed 'by Mr. Cameron and Mrs. Cameron, and these are their signatures.”

Gehr further testified:

“ I recollect stating, among other things, to Mr. Cameron that I wished to use a part of this money on account of that Lake View property, in which I had an interest, and of which he had heard, and that there was some interest due, that there were interest and taxes due, and that it was not convenient, at that time, for Mr. Walker, who was interested in the property, to make payment.”

On cross-examination Gehr testified :

“ About the time that I obtained the paper of May 3, 1893, there was certain interest falling due on the Lake View property on a loan of $20,000 — on a part of it, and a loan of $5,000 on the balance. Those loans did not bear the same interest. The $20,000 bore seven per cent interest and the $5,000 bore six per cent interest. The interest that was coming due about this time was about $700 on the $20,000. This was a piece of property in which Mr. Wallce^ and I were interested. I think I informed Mr. Cameron of the fact that $700 of interest was coming due about that time. I think I told him that that was one of the matters on which 1 might want to have some money. I said that there were moneys due for taxes and interest, and that I could not recall whether I mentioned them to Mr. Cameron at that time, but that I thought I did, although 1 could not be positive.' 1 think the taxes that year were between $500 and $600.”

The interest on the $20,000, $700 plus taxes — $600—is $1,300. The interest on the loan of $5,000 is not stated by Gehr, but it may have been at least $200. His immediate need of money, according to his own testimony, was to pay the interest due on the loans, and the taxes mentioned, and this, with other circumstances, tends to corroborate the testimony of the Camerons. Gehr testified that in the conversation with the Camerons at the time when the May 3d paper was signed, nothing was said about $1,500 or ninety days.

It would seem from Gehr’s testimony that he attached but little weight to the paper. In his direct examination he testified:

“ The authority signed May 3, 1893, was in the files, in mv office, and I never had occasion to look for it, from the date it. was signed until along in the summer of the following year (1894), when I was told, for the first time to my knowledge, that I had no authority to use the paper. Mr. Matz told me that, and I told him that I had authority in writing and would look it up. It was in the vault among a bundle of old papers.”

J. Joseph Wright, son of appellant Wright and confidential clerk of Gehr, and thoroughly familiar with Gehr’s business, including his agency for Cameron, questioned Gehr’s authority to borrow money on the Cameron note and trust deed, and even after the paper of May 3, 1893, was exhibited to him by Gehr, he refused to comply with Gehr’s request to ask a loan from his father on the security of the note and trust deed, although his father had money to lend on good security.

Gehr, about the time of procuring the May 3d, paper, executed to Mr. Cameron an assignment of the agreement with Kriewitz, in which assignment the following occurs :

“ I agree that, upon the delivery of the within master’s deed, I will convey said land to Robert Cameron, who has delivered to me his note for $11,000, secured by trust deed upon land in Cook county.”

This, although the certificate of sale had passed from his hands and control bv assignment to Wright, of which he well knew. Cameron was ignorant, and so kept by him, Cameron’s agent, designedly. Had not Cameron been thus hoodwinked, had he not been ignorant of the “ by-paths and crooked ways ” to which Gehr resorted to accomplish his own selfish ends, it is extremely improbable that he would have consented to Gehr’s borrowing a dollar on the security of the note and trust deed. On the hypothesis that, in equity, and so far as the rights of third persons are concerned, it must be held that the Camerons authorized Gehr to borrow $1,500 for ninety days, on the security of the note and trust deed, that authority was more than exhausted by his borrowing from Frederick Straus $6,000, which he did May 20, 1893, giving his own sixty-day note and pledging the Cameron note and trust deed as security. It is somewhat remarkable and significant that Gehr did not exhibit to Mr. Straus the paper of May 3, 1893, which he claims as authority to borrow on the security of the note and trust deed, without limitation as to amount. This was, perhaps, because the paper contains the following sentence, which was likely to excite suspicion and result in failure :

“ The said note was deposited with you to secure you from loss, by reason of your having signed a contract for the purchase of the property on Barry avenue, for my benefit.”

This was another instance of Gehr’s want of confidence in the paper.

July 19,1893, the day next before the day when Gehr’s note to Straus fell due, he called on Straus and informed him that he would not be able to pay the whole amount of the note when due, but would pay $2,000 of the amount, which he did. Straus refused to extend the time of payment unless Gehr would bring Cameron to him, and Cameron would make a statement satisfactory to him that the signatures to the note and trust deed were genuine, that he, Cameron, had no offset or counter-claim, and that Gehr could use the paper as collateral security.

About July 27, 1894, at the office of Mr. Wertheimer, Straus’ attorney, Gehr, Mr. Cameron and Straus being present, the following document was signed by.Mr. Cameron:

“ Chicago, July 27, 1893.
I, the undersigned, Robert Cameron, do hereby declare that I did, on the first day of April, 1893, execute one promissory note, payable one year after date, to the order of myself, and by me indorsed, in the principal sum of $11,000, with interest thereon at the rate of six per cent per annum, payable half-yearly on the first day of October and April, in each year, without grace, at the office of Arthur C. Gehr & Company, in Chicago, interest evidenced by two coupon notes, of even date; that said sum of $11,000 was paid me by Arthur C. Gehr & Company, and that said Arthur C. Gehr & Company, upon the execution thereof, became the owners of said note and coupons, and had full authority to negotiate, or otherwise dispose of the same, for their own use and behoof.
Said note and interest aforementioned is secured by trust deed executed by me, on real estate in Cook county, which said trust deed bears document number 1,843,226, recorded April 5, 1893, in book 4289 of records, page 36.
Robert Cameron.”

As to the circumstances which resulted in the signing of this paper, Wertheimer testified:

“ Mr. Straus came to me and said he was not wholly satisfied as to the way in which Gehr had met his promises, and wanted to know about the right of Gehr to use those papers as collateral. I do not undertake to give the exact language. I told Mr. Straus that I would let Mr. Gehr know, and have Mr. Cameron come down to the office and meet Mr. Straus. This was done.”

It appears from Mr. Cameron’s testimony that he had not been informed of the Straus loan, and that when Herbert Gehr, appellee Gehr’s brother, came to him and informed him that appellee Gehr wanted to see him, he asked Herbert what he wanted, and Herbert told him he didn’t know, and then took him to Wertheimer’s office. There is a conflict of evidence as to what occurred at the time the July 27th paper was executed. Wertheimer testified:

“ Mr. Straus wanted to know whether Mr. Gehr was authorized to use the paper as collateral, and who was the owner of it, etc.; explained to him why we wanted to know that; from his answers I deduced the conclusions from which I dictated the document, and it contains substantially the answers given to me by Mr. Cameron and the questions put to him concerning the matter.”

This witness further testified that he would not be certain whether he read the paper to Mr. Cameron, or whether he, Cameron, read it himself, but that he was convinced that Cameron knew its contents; that he would not say that he mentioned the amount of the note; that he would not undertake to say whether he stated the amount of the loan.

Straus testified:

“We explained to Mr. Cameron the substance of the reason for calling him up there — what the intention was, what we wanted to do, and on account of Mr. Gehr not being able to take up his note as agreed on. Mr. Cameron was satisfied; he said he was satisfied to make a statement in any way that we would think it was necessary, and Mr. Wertheimer dictated the statement in my presence, and the same was afterward signed by Mr. Cameron in my presence, and Mr. Wertheimer’s presence and Mr. Gehr’s presence. It was dictated in Mr. Cameron’s presence, and I think it was read to Mr. Cameron by Mr. Wertheimer.”

Gehr, appellee, testified:

“ At the appointed time I went to Mr. Wertheimer’s office in the Title & Trust building. Mr. Wertheimer and Mr. Straus were there. My impression is very strong that Mr. Cameron came in a few minutes later with my brother. I think it is barely possible that Mr. Cameron may have been there. But my impression is very strong that Mr. Cameron was the last one to come. That was the first time I had seen Mr. Cameron after this conversation with Mr. Straus, early in the morning. Mr. Wertheimer told Mr. Cameron that he wanted to inquire about a note that Mr. Cameron had signed — note and trust deed that I had pledged with Straus for a loan, and told him that as a business man he wanted to have proper information about all his matters, and asked Mr. Cameron if this was his signature to the note and trust deed. He told Mr. Cameron that 1 had not paid all that was due upon the note, and before granting an extension he wished to know that the note was all right. Mr. Cameron replied that it was his signature. The note and trust deed were in Mr. Wertheimer’s office at the time. Mr. Straus then asked Mr. Cameron what he thought the property was worth. Hp to that time the conversation had lasted about five minutes. Mr. Wertheimer then told Mr. Cameron that he wished him to make a statement in writing, of the condition of the matter, according to their talk, and dictated to a stenographer this paper marked Cross-Complainant’s Exhibit A. Mr. Cameron was satisfied to sign it. He spoke to me regarding it. I told him it was all right. He did not ask me what it was, or anything of that sort. The paper had already been read, and I told him it was an acknowledgment by him that I had a right to use this note the same as the other acknowledgment that I had before.”

Mr. Cameron testified:

“ Mr. Gehr, Mr. Straus and Mr. Wertheimer were in that office. Herbert Gehr opened the door and I went in; he didn’t go in; he went back again; and Arthur Gehr introduced me to Straus, who was next the door. Mr. Wertheimer was at the desk, the same as if he was over there (indicating). He introduced me to both of them, and Mr. Straus asked me if Mr.Gehr had a note of $11,000 belonging to me. I said he did. He asked me if he was authorized to borrow money on it, and I said he was. He asked me where the property was; I told him it was on Wellington avenue, near the lake, and he asked me how much the property was worth, and I told him I thought it probably was worth $250 to $300, about that. He said he was up and looked at the property; said it was very nice property, and I said it was; it was good property, and some thought it was worth $325, but I thought it was worth about $300; I mean a foot. And Mr. Wertheimer handed me a paper about the time that conversation was through. He asked me to read it, and he would like to have me sign it. Gehr was sitting on the window, right across there (indicating). I took the paper in my hand and I walked over where Gehr was, and he got up off the window, and I asked him what this paper meant. He said that it was the same as my wife and I had signed at the house; that this was the people that he was getting the money from, and that they wanted to see the maker of the note and have him sign that paper. I signed the paper.”

M>. Cameron further testified that neither Wertheimer nor any one read the paper to him, and that nothing was said about Gehr having paid him $11,000, or about Gehr being the owner of the paper, and that he was at the meeting about five minutes; that neither Straus nor Wertheimer nor any one told him that Gehr had already borrowed money on the note and trust deed; that he had absolutely no conversation with Wertheimer, beyond his introduction to him; that the first time he saw the July paper, Wertheimer walked over to him with the paper in his hand and handed it to him, and told him to read it, and then he went aside to Gehr and asked him what it meant, but did not ask Gehr to read it. He, Cameron, also testified that he didn’t ask anything about the loan from Straus, because he thought it was that $1,500 which he had given Gehr permission to borrow, and never thought it was for anything else.

On the execution of the July 27th paper, Straus extended the time for payment of Gehr’s note, and Gehr, within thirty days from the date of the extension, paid to Straus the balance due on his note. In order to do this, however, he had to get another loan, for which he applied to appellant Bouton. August 17, 1893, appellant Bouton loaned to Gehr on his sixty-day note, and on the Cameron note and trust deed, as collateral security, the sum of $5,000. It appears from the evidence that the amount named was very much needed by Gehr at that time. The first payment made by him on his note to Straus was a check of appellant Wright, which had been given him by Mr. Wright to make a payment on a piece of property which he, Wright, .contemplated purchasing, and which check Gehr was accountable for to Mr. Wright. Gehr paid to Straus $1,000 in about twenty days from the date of the extension of his note to Straus, and still owed Straus about $3,000, making $5,000 in all, viz., $2,000 to Wright and $3,000 to Straus. It would appear that he had an inveterate habit of using the money and securities of his patrons and principals for purposes other than they were intrusted to him for.

It conclusively appears from the evidence, and is not disputed, that neither Mr. Bouton nor his agent, Mr. Tod, who acted for him in making the loan, saw either of the papers of May 3d and July 27th before making the loan. The paper of May 3d was, as Gehr testified, in his vault “among a bundle of old papers,” and he had never seen it from the time it was signed until some time in the summer of 1894. Although he had been for weeks negotiating with Tod, first, with the view of selling the note and trust deed, and subsequently, for borrowing on them, as security, it never occurred to him to exhibit to Bouton or his' agent, Tod, the May 3d paper. The July 27th paper was in Straus’ possession, and Gehr could not obtain possession of that paper until he paid Straus, which he did from the money which Bouton loaned him. Tod testified that Gehr, after receiving a check for $5,000, left Bouton’s office, and in about half an hour returned with the note and trust deed and the paper of July 27th. Mr. Bouton testified that he then saw that paper for the first time. The appellant Wright, like Mrs. Cameron, had done business with Gehr’s father, and like her, he unfortunately continued the business with appellee Gehr. ■

March 16, 1894, Gehr borrowed from James G. Wright, evidenced by his judgment note of that date, payable March 17, 1894, the sum of $7,700, to secure payment of which he executed to Mr. Wright a certain paper purporting to be . an assignment from him to Wright of a certain lease, a certain option contract, and Gehr’s interest in the Cameron note and trust deed. The language of the document, as to the note and trust deed, is as follows:

“ Also all right, title and interest in and to a certain note for the sum of $11,000, made by Robert Cameron and dated April 1,1893, secured by a deed of trust recorded in the recorder’s office of Cook county, Illinois, in book 4289 of records, at page 36, subject to an incumbrance or loan upon said note of the sum of five thousand dollars ($5,000), for" which said note is pledged with Walter Tod & Co., of Chicago, Illinois.”

Walter Tod & Co. was the name of appellant Bouton’s firm. The assignment to' Wright was, necessarily, by a separate instrument, the note and trust deed being in Mr. Bouton’s possession at the time of the assignment. The assignment purports to be and was merely of Gehr’s interest in the note and trust deed. What was his interest ? As before stated, Gehr and Robert Cameron both testified that the note and trust deed were given to secure Gehr from any loss which he might suffer in the event of Cameron’s death, by means of obligations which he may have incurred by his contract with Kriewitz. This also appears from the paper of May 3, 1893, in which it is stated:

“The said note was deposited with you to secure you from loss by reason of your having signed a con tract "for the purchase of the property on Barry avenue, for my benefit.”

The note and trust deed, therefore, were in the nature of a bond for indemnity; and Gehr’s sole interest in them was to be indemnified, by means of the note and trust deed, for any loss which he might suffer, as stated. Until he suffered such loss, he could not equitably sustain any action on the note, or foreclose the trust deed. It does not appear that he had suffered any such loss, and his contract with Kriewitz being unilateral and unenforcible against him, either at law or in equity, as we think, he can suffer no loss by reason of that contract. Wright, his assignee, took no greater right than Gehr himself had. In our former opinion we said, in reference to the assignment in question:

“ The assignment to Wright of Gehr’s interest in the note, subject to the prior assignment to Bouton, was, as heretofore stated, by a separate instrument of date March 16, 1894, and was not such an assignment as is contemplated by Sec. 4, Chap. 98, of the Statutes, namely, by indorsement of the note. The assignment, therefore, was merely equitable, and Wright, the equitable assignee, took subject to any defense which ¡Robert Cameron, the maker of the note, might have against Gehr. Osgood’s Adm’rs v. Artt, 17 Fed. Rep. 575; Peck v. Bligh, 37 Ill. 317.”

The chancellor found that Gehr had no authority to borrow from either of the appellants on the security of the Cameron note and trust deed. It is urged by counsel for the appellants that this finding is contrary to the evidence. The evidence on the question is conflicting and contradictory. In Shevalier v. Seager, 121 Ill. 564, the court states the rule of practice in the Supreme Court in common law cases, in which the evidence was conflicting, which obtained in that court prior to the enactment of the statute limiting the court to the decision of questions of law, and applied the rule to the verdict of a jury in a contested will case. The court, after citing numerous cases, the last cited being Ill. Cen. R. R. Co. v. Gillis, 68 Ill. 317, say:

“ The case last mentioned contains, perhaps, as clear and apt a statement of the rule, if not more so, than any of them. It is there said: ‘If any rule of court can be so well established as to be neither questioned nor require the citation of authorities to support it, it is that a verdict will not be set aside whenever there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize a verdict, notwithstanding it may appear to be against the strength and weight of the testimony.’ In the later case of Calvert v. Carpenter, 96 Ill. 63, which, like the present, was a contested will case, the rule is formulated in fewer words, though in substance it amounts to the same thing. In that case, as in this, there was a direct conflict in the testimony as to the testator’s capacity to make a will, and it was there said: ‘This court will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.’ ”

The reason stated for the rule in decided cases is, that the presiding judge of the trial court, who sees the witnesses, hears their testimony and observes their demeanor while testifying, is, other things being equal, better qualified, to pass on the question of their credibility than is a court of review from the mere reading of their testimony. In analogy to the rule in common law cases, the court has adopted the rule that in a chancery cause, in which the chancellor has heard the witnesses testify in open court, the findings of fact will not be disturbed unless clearly and manifestly against the evidence. Burgett v. Osborne, 172 Ill. 227; Delaney v. Delaney, 175 Ib. 187,199; Bloomstrom v. Dux, Ib. 435; Elmstedt v. Nicholson, 186 Ill. 530; Mayrand v. Mayrand, 194 Ill. 45, 49, and cases cited.

In McCormick v. Miller, 102 Ill. 208, the court say:

“If upon a careful consideration of the whole of the testimony bearing on the question, the reviewing court has a well founded doubt as to how the question should have been determined, without any clear conviction the one way or the other, the finding of the court below should not be disturbed.” Ib. 214.

In the present case we can not say that the finding of the chancellor is clearly and manifestly against the evidence. The evidence disclosed by the record of Gehr’s frequent violations of his duty as agent and betrayals of the trust reposed in him by the Camerons, and his audacious attempt to sell outright to Bouton the note and trust deed, as testified to by both Bouton and Tod, and not denied by Gehr, were sufficient to discredit his testimony. Assuming the findings of the learned chancellor to be correct, and we can not say they are not, Gehr lied to the Camerons, lied to Bouton, lied to Wright, and when, at the maturity of the Bouton loan, Cameron first learned of its existence, and Gehr then claimed having had authority to borrow from Bouton on the security of the note and trust deed, Cameron indignantly told him he was a liar. For an agent to gain a personal advantage in the matter of his agency, to the detriment of his principal, is something the law will not tolerate. Story on Agency, 9th Ed., Sec. 210; Mechem on Agency, Sec. 454, et seqviens.

The law being that the assignee of a trust deed in the nature of a mortgage takes subject to all defenses which the grantor could make against the grantee, Bouton and Wright should, for their own protection, have inquired of the grantor, Cameron, whether he had any defense as against Gehr — whether there was any reason why the amount secured by the trust deed should not be paid. Olds v. Cummings, 31 Ill. 188; McAuliffe v. Reuter, 166 Ib. 491, 496; Buehler v. McCormick, 169 Ib. 269, 275.

The evidence shows that before Bouton accepted the note and trust deed as collateral to .Gehr’s note, he was informed that they were made and executed by Mr. Cameron. Cameron lived in Chicago and was easily accessible, which is evidenced by the fact that he received Tod’s letter notifying him of the maturity of the Bouton loan. J. Joseph Wright, who acted for appellant Wright in making the Wright loan, was, as before stated, Gehr’s confidential clerk, and knew Cameron well. There is, therefore, no excuse for the appellants’ omission to inquire of Cameron.

But appellants contend that the note was an accommodation note, and therefore the doctrine announced in Olds v. Cummings, and adhered to in subsequent cases, has no application, citing Miller v. Larned, 103 Ill. 562.

The note in question was not intended or given as an accommodation note. It and the trust deed purporting to secure it were, as we have shown, to secure Gehr against loss by reason of his contract with Kriewitz. They were intended to subserve the purpose of an indemnifying bond. It can not be claimed that Gehr could have legally sold them or borrowed money on them prior to May 3, 1893. The consent of the Camerons that Gehr might temporarily use the note and trust deed as security for a loan of $1,500 for ninety days, did not, in our opinion, make the note accommodation paper for all purposes. When the authority so given was exhausted by the loan from Straus, the paper stood as it did originally, viz., as security to Gehr against loss. Miller v. Larned, supra, has no application to the facts of the case, as found by the trial court. In that case the court say, “ A recognized definition of accommodation paper is, either a negotiable or non-negotiable bill or note, made by one who puts his name thereto, without consideration, with the intention of lending his credit to the party accommodated;” and the court held that the notes involved in that case were accommodation notes ab initio, and were so understood to be by the parties to them.

Counsel for appellant Bouton contend that their client should at least be subrogated to the rights of Straus, in so far as the money loaned by Bouton was used in payment of Gehr’s indebtedness to Straus. We can not sustain this contention. In 2 Beach on Mod. Eq. Jnrisp., Sec. 801, the author writes:

“But one who is only a volunteer can not invoke the aid of subrogation, for such a person can establish no equity. He must have paid on request, or as surety, or under some compulsion, made necessary by the adequate protection of his own right. * * * The loaning of money to discharge á lien does not subrogate the lender to the rights of the lien holder.”

Bouton was a mere volunteer. He did not advance the money to Gehr for the protection of his, Bouton’s, interest. He had no interest to protect; and, certainly, was under no compulsion to make a loan to Gehr. Under such circumstances he can not claim the right of subrogation. Hough v. Ætna Life Ins. Co., 57 Ill. 318; Young v. Morgan, 89 Ib. 199; Pearce v. Bryant Coal Co., 121 Ib. 590, 597; White v. Cannon, 125 Ib. 412, 416; Bank, etc., v. Union Trust Co., 149 Ib. 343; Home Savings Bank v. Bierstadt, 168 Ib. 618; Fuller v. Davis’ Sons, 184 Ib. 505, 513.

We can not understand how the doctrine of subrogation can be applied to the facts of this case.

Counsel for appellant Bouton further contend that the court, under the prayer for general relief, should have rendered a personal decree against Cameron on the $11,000 note for the difference between the amount for which the decree of foreclosure is and the amount due on the note. If, as the court found, Gehr had no authority to pledge the note as collateral security, then, in equity, Bouton had no right, as we think, to such decree. But even on the hypothesis that a recovery might be had at law on the note, and that the court might have administered a purely legal remedy, by a personal money decree against Cameron, it by no means follows that the court was bound to so do.

It is claimed in favor of Wright, that his son, J. Joseph Wright, who acted for him in the examination of the securities, saw the papers of May 3d and July 27th. J. Joseph Wright took the acknowledgment of the trust deed by Mr. Cameron and wife, and knew well the object for which it was made. That object, too, is plainly stated in the May 3d paper. His knowledge of the purpose of the trust deed, together with the discrepancy between the papers of May 3d and July 27th, the former stating the trust deed was to secure Gehr against loss, ¿nd the latter that Gehr had paid to Cameron $11,000, which Wright, Jr., knew to be false, were circumstances clearly suggesting inquiry of Cameron. Tet he made no such inquiry. Had Bouton and Wright inquired of Cameron before parting with their money, as it was their duty to do, Cameron, unquestionably, would have informed them of the facts, and they would not have been victimized by Gehr. Bouton testified that in conversation Avith Cameron, after Cameron had been notified of the loan and its maturity, he told him, Bouton, that he gave the trust deed for the purpose of securing Gehr; that he and Gehr had some business transactions in regard to real estate; and Cameron testified that Bouton asked him how Gehr came to get the note, and he told Bouton about the Barry avenue deal, and that the note was given to Gehr to secure him against loss, if he, Cameron, should die, on account of his putting that deal through; that he told Bouton the whole story from beginning to end, and Bouton said it Avas too bad, and that he was sorry for him. Can there be any doubt that if such inquiries had been made of Cameron by the appellants before lending their money on the faith of the Cameron note and trust deed, they would have received like information ?

We believe, from inspection of the entire record, that substantial justice has been done, and in each of the appeals the decree will be affirmed.


author: Mr. Justice Sears

text:
    Chicago City Ry. Co. v. Minard W. Maloney, by His Next Friend.
    1. Evidence — Comparison of the Number of Witnesses Not Conclusive. — A mere comparison of the number of witnesses testifying in a case is not conclusive as to the preponderance of conflicting evidence.
    2. Verdicts — When. it is the Duty of the Court to Set Aside. — It is the duty of the trial court to set aside a verdict which is manifestly against the clear preponderance of the evidence.
    3. Negligence — Duty of the Jury as to. — A jury can not be permitted to arbitrarily declare any act to constitute actionable negligence as it may capriciously elect without a proper foundation for its action.
    It is only where the facts will authorize a jury to find negligence that it can be said to be a question of fact.
    4. Appellate Court Practice — Where a Case Will Not be Reversed Without Remanding. — When there is some evidence tending to establish the cause of action stated in the declaration, although the manifest weight of the evidence is against it, the Appellate Court will not make a final disposition of the cause, but will remand it for another trial.
    Trespass on the Ca e, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. FarlinQ. Ball, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed January 30, 1902.
    Statement. — Appellee, a minor, brought this suit by next friend to recover damages for personal injuries sustained through being struck by one of the cable trains of appellant, which was moving northward upon State street at the intersection of Thirty-fifth street, in Chicago.
    The narr. upon which issue was joined and trial had, consisted of eight counts. The first count charges in general terms, careless and improper management of the grip car and train.
    In the second count defendant’s negligence is charged to have been in neglecting to ring a bell or give warning or signal of the approach of the train. The third count charges that defendant was negligently running its train at a high and excessive rate of speed. In the fourth count defendant’s negligence is charged to have consisted in a failure to slacken the speed of the train as it approached the crossing. The fifth count charges that defendant negligently permitted the grip of the grip car attached to the train to become and remain defective and out of order, so that it could not be detached or disconnected from the cable that propelled the cars. The negligence charged against defendant in the sixth count is in permitting the brake upon the cars to become and remain insufficient and out of order. Tb e seventh count charges that defendant negligently permitted the wire rope or endless cable propelling the train to become in bad condition and repair, and certain strands composing the rope or cable to become worn and partially detached therefrom, and that thereby the grip of the grip car became entangled by said worn and partially detached strands. The eighth count charges that it was the duty of defendant to keep certain sand boxes on the grip car full of sand, so that they could be easily controlled or stopped, but that defendant allowed the sand boxes to become empty and without sand, so that the train of' cars could not be stopped or controlled.
    No evidence whatever was introduced which supported or tended to support the fifth, sixth, seventh or eighth counts of the declaration. Two witnesses only testified to the occurrence in question on behalf of appellant, the plaintiff below. One of these was Minard Maloney, for whose use the suit was brought, and the other was William Nelson. Mr. Nelson testified that he ivas in a drug store on the corner of State and Thirty-fifth streets, from which place he witnessed the accident; that he saw the boy when he started east over the south crossing of Thirty-fifth street, and that as he got to the north-bound track (after having crossed the south-bound track) the front end of the car on the north-bound track struck him; that the train was running fast; that no bell was rung upon the grip car before the boy was struck; that the car first began to slacken its speed about ten feet before it struck the boy; that it was the northwest corner of the grip car which struck the boy, and that the corner projected a little over the rail. He also testified, “ I did not see any car on the south-bound track then, standing or moving;” and “ It was a clear day and he (the boy) was looking east. There was nothing to prevent his seeing the car; ” and “When the train first came to a stop * * * the rear end of the rear car "was at the north crossing of Thirty-fifth street.” Minard Maloney was about nine years old when the injury occurred. He testified that he was returning from an errand to a grocery store; that a south-bound train was standing upon the crossing of Thirty-fifth street on State street; that in going across State street he passed behind the standing south-bound train. He testified :
    “ I think I looked to see if there was any cars, but I didn’t see any, and then I heard some yelling and I tried to run back and that is all I remember. * * * I didn’t hear no bell.”
    This constituted all of the evidence which tended to support the action, except that a police officer testified to seeing the train by which the boy was struck standing north of the north crossing of Thirty-fifth street after the accident, and excepting evidence going to the extent of the injury.
    On behalf of appellant the conductor and gripman of the north-bound train and six disinterested witnesses of the accident, testified that the south-bound train did not stop at Thirty-fifth street where the north-bound train passed it; that the north-bound train was moving slowly at the time of the accident; and five of these witnesses besides the grip-man testified that the gong was ringing upon the grip car at the time in question.

      The issues were submitted to a jpry and a verdict resulted for appellee, by which the damages were assessed at $2,000. From judgment thereon this appeal is prosecuted.
    Wm. J. Hynes and Watson J. Ferry, attorneys for appellant; Mason B. Starring, of counsel.
    Joseph B. Mann and Munson T. Case, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

No evidence whatever was presented to support those counts of the declaration which charge as negligence of the appellant a defective condition of brake, cable or sand box. Upon the charge of negligence in failing to ring a bell upon the grip car as it approached the Thirty-fifth street crossing, set up by the second count, there was some evidence on behalf of the appellee, but it was very slight, and in comparison the contradictory evidence presented by appellant ivas overwhelming. Nelson and Minard Maloney each testified that they heard no bell. The gripman and five other witnesses testified positively that the bell upon the oar was ringing. One of the witnesses called by appellee testified that at the precise moment when the car struck ¡the boy he heard no bell; but in this he agrees with the gripman, who testified that he rung the gong up to the instant of the collision, when he released the bell to grasp the levers.

A still greater preponderance existed in favor of the appellant upon the .charge of excessive speed, as presented by the third and fourth counts. Nelson alone testified as to speed of the train on behalf of appellee. He said that it was going fast. Against this uncorroborated testimony is the testimony of the gripman and the corroborating testimony of seven apparently disinterested witnesses, that the train had slackened its speed in approaching Thirty-fifth street, and at the time in question was moving slowly. These various witnesses fixed the distance within which the train was brought to a standstill after the boy was struck, at from five to ten feet. Under the general charge of negligence in moving and managing the train, as set out by the first count, it was sought to show by Minard Maloney’s testimony that the south-bound train was standing upon the Thirty-fifth street crossing to discharge its passengers, when the north-bound train ran by it without stopping. But upon this theory of fact the appellee’s case was as sadly lacking in weight of evidence as upon the other grounds just noted. For Minard alone testified to the fact that the south-bound train was standing. Nelson, appellee’s witness, testified that he saw no south-bound train standing or moving. Eight witnesses, six of whom were apparently in no manner interested or concerned in the outcome of the trial, testified positively that the south-bound train did not stop, but that it and the north-bound train passed each other, while both were moving, at Thirty-fifth street.

If there were any ground whatever upon which the testimony of these many witnesses could be discredited, it might be said that a mere comparison of numbers is not conclusive as to preponderance of conflicting evidence. But there is no such ground apparent upon this record. One of the apparently disinterested witnesses was a commercial traveler; another an official of a lumber company; another, superintendent of a teaming company; another a train porter on a railroad; another a newspaper vender; another a railroad switchman; another a laborer and another a real estate dealer. No one of them was in any manner impeached. How it can be in reason held by court or jury that the uncorroborated statement of Nelson upon the proposition of speed, or the equally uncorroborated statement of Minard Maloney upon the question of the standing train, or the negative testimony of each that he heard no bell, overcomes and creates a preponderance over the united testimony of the conductor and gripman and these many disinterested and unimpeached witnesses, surpasses comprehension.

If it should be said that the duty of a court to set aside a verdict which is manifestly against the clear preponderanee of the evidence, does not apply here, then it would be difficult to imagine a case where it ever could apply.

It is contended by the learned counsel for appellee that the jury might have found that the mere fact of two of appellant’s trains passing while each was in motion, constituted actionable negligence. By this same reasoning a jury might have declared by their verdict that to operate any train upon the surface of a city is actionable negligence, but no court would sustain such a finding.

What constitutes negligence is primarily a question of fact for determination by jury. Nevertheless, jurors can not be permitted to arbitrarily declare any act to constitute actionable negligence, as they may capriciously elect, without foundation therefor. It is only where the facts would authorize a jury to find negligence that it can be said to be a question for the jury. Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243.

We do not regard the decision in Roberts v. Spokane St. Ry. Co., cited and relied upon by counsel for appellee, as in point. In that case the court found that the controller upon the electric car was out of repair, and that with the controller in good condition (the motorman stated) the car could have been stopped under the circumstances, considering the place and rate of speed, very nearly instantly. He also said that the plaintiff would not have gone under the front end of the car had the controller been in sound condition.” It is true that the question of negligence in the passing of cars upon a crossing did become subject of comment in the decision. But there was clearly good ground for sustaining the judgment there upon the negligence predicated upon the defective controller. And of the two cars in question there, one was standing at the public crossing. If there were here any facts showing that by reason of the peculiar surroundings it was more perilous to pedestrians upon the street to permit one train to pass another while each was moving, than it is to permit trains to pass each other generally in surface transit, then perhaps a question might be presented as to actionable negligence in this case. Upon such grounds it has been held to be negligence in certain cases to move one train by while another train was discharging its passengers upon an adjacent track. But here there are no such facts or circumstances established. The very great preponderance of the evidence discloses that this accident occurred by reason of the young lad heedlessly running into a moving train. Pague, Mc-Clelland, Opfer, Byrne and Bulfer, as well as the gripman, agree in testifying that the boy was not upon the track at all, but that he suddenly ran from the west from behind the train moving south, into the projecting northwest corner of the north-bound train. Pague testified : “ I say ran into the car’ because he wasn’t looking where he was going. The car did not run into him. He ran into the car.” McClelland testified: “ He was looking back over his shoulder at the south-bound train, and he ran almost directly against our grip car, the northwest corner of it.” Opfer testified: “ The boy ran right from behind the south-bound car and dashed right into the northwest corner of the north-bound car, and it knocked him to one side; it knocked him to the west side.” Byrne testified: “ Just as we were coming to the crossing of Thirty-fifth street there was a south-bound train passing, and just as we got to the crossing, just at the cross-walk, a boy dashed out from behind that car and bumped against ours.” Bulfer testified : “The first 1 saw the boy coming on the crossing on the south side of the street, going, he was going toward the east, and there was another boy running after him at the time, and when I saw him he was right into the grip car. There was another train, south-bound train passing just before; bad passed just before he ran into the car.”

It is obvious that the verdict can not be permitted to sustain this judgment, because it is manifestly against the clear preponderance of the evidence.

Appellant’s counsel ask that the cause -be reversed without remanding. This we can not do, for there is some evidence tending to establish the charge of the declaration as to failure to ring a bell, some evidence tending to show that the south-bound train was standing at the crossing discharging its passengers when the north-bound train went by, and some evidence tending to show that the north-bound train was moved at this crossing at a high rate of speed. Although upon each of these several charges the manifest weight of the evidence is against the sustaining of the charge, yet in view of such evidence the trial court could not, nor can this court, make a, final disposition of the cause, and it must be remanded for another trial. A very decided preponderance of the evidence goes to establish contributory negligence of Minard Maloney as the cause of the accident, but in view of his age, the question of his exercise of care was, we think, a question for the jury, and not, in the first instance, for the court. The judgment is reversed and the cause is remanded.